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HomeMy WebLinkAbout05-0051 PNC BANK, NATIONAL ASSOCIATION, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. OS -~l C;uJ I~ STEVEN J. CAPUANO, Defendant CONFESSION OF JUDGMENT CIVIL ACTION - LAW CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against Defendant as follows: Principal $106,693.25 Other authorized items: Interest to December 22, 2004 $ 1,244.76 Attorney's Commission $ 10,793.80 TOTAL $118,731.81 plus additional interest, prepayment fees and costs from the date ofthe Complaint. Respectfully submitted, SAlOIS, SHUFF, FLOWER & LINDSAY Date: December 28, 2004 /7 // By: .' / Geoffr . S. f,;Esquire Supre ourt IP #24848 2109 Market Stleet Camp Hill, PA 17011 (717) 737-3405 Attomey for Plaintiff (') si; '" (j , =< "" = = en (;... > Z J .t."- o -n ~ rn21 r- -nm ~5 ;r, ~~ ~I; {:SfT1 s3 -"< :;",. ::;: Cl CD PNC BANK, NATIONAL ASSOCIA nON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. OS; - .5'/ C~L>lL'T~ STEVEN J. CAPUANO, Defendant : CONFESSION OF JUDGMENT : CIVIL ACTION - LAW COMPLAINT FOR CONFESSION OF JUDGMENT UNDER RULE 2951 1. The name and address of the Plaintiff is PNC Bank, National Association, 4242 Carlisle Pike, Camp Hill, Pennsylvania 170 II. 2. The name and last known address of the Defendant is Steven J. Capuano, 1229 Blossom Terrace, Boiling Springs, Pennsylvania 17007. 3. Defendant Steven J. Capuano. ("Defendant") executed and delivered to Plaintiff a Commercial Guaranty (the "Guaranty"), a true and correct photostatic reproduction of the original showing the Defendant's signature is attached hereto as Exhibit "A" and made part hereof. 4. Defendant under the Guaranty, guaranteed to Plaintiff the payment of all amounts due to Plaintiff by Landis, Inc. ("Debtor") under the Promissory Note dated April 26, 1999, in the original principal amount of One Hundred Twenty Thousand and 00/100 Dollars ($120,000.00) (the "Note"), a true and correct photostatic reproduction of the original is attached hereto as Exhibit "B" and made part hereof. 5. Defendant and Debtor executed and delivered to Plaintiff a Forbearance Agreement dated September 25, 2003 (the "Forbearance Agreement") in connection with the Note. A copy of the Forbearance Agreement is attached hereto as Exhibit "c" and made a part hereof. 1 6. Defendant and Debtor executed and delivered to Plaintiff a Modification and Amendment of Forbearance Agreement dated May 4, 2004 (the "Modification and Amendment of Forbearance Agreement") in connection with the Note. A copy of the Modification and Amendment of Forbearance Agreement is attached hereto as Exhibit "D" and made a part hereof. 7. Debtor is in default of Debtor's obligations to make payment to Plaintiff as required in the Note, the Forbearance Agreement and the Modification and Amendment of Forbearance Agreement and Defendant is in default of Defendant's obligations to make payment to Plaintiff under the Guaranty, the Forbearance Agreement and the Modification and Amendment of Forbearance Agreement. 8. Plaintiff has demanded payment in full of all outstanding amounts as provided in the Note, the Guaranty, the Forbearance Agreement and the Modification and Amendment of Forbearance Agreement. A copy of Plaintiffs demand is attached hereto as Exhibit "E" and made a part hereof. 9. Defendant executed and delivered to Plaintiff a Disclosure for Confession of Judgment ("Disclosure for Confession"), a true and correct photostatic reproduction of the original of which is attached hereto as Exhibit "F" and made a part hereof. I O. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. ] I. There has not been any assignment of the Guaranty, the Note, the Forbearance Agreement nor the Modification and Amendment of Forbearance Agreement. 12. Judgment has not been entered on the Guaranty, the Note, the Forbearance Agreement nor the Modification and Amendment of Forbearance Agreement in any jurisdiction. 2 13. An itemized computation of the amount due to Plaintiff by Defendant as a result of Defendant's default under the Guaranty, the Note the Forbearance Agreement and the Modification and Amendment of Forbearance Agreement is as follows: a. Principal $106,693.25 b. Interest to December 22, 2004 $ 1,244.76 c. Attorney's Commission $ 10.793.80 TOTAL $118,731.81 14. Interest continues to accrue at the rate of20%. WHEREFORE, Plaintiff, PNC Bank, National Association, demands judgment against Steven 1. Capuano, Defendant, in the amount of One Hundred Eighteen Thousand Seven Hundred Thirty-One and 81/1 00 Dollars ($1 18,731.81), plus interest at the rate of 20%, through the date of payment, including on and after the date of entry of judgment on this Complaint, prepayment fees and costs. Respectfully submitted, SAlOIS, SHUFF, FLOWER & LINDSAY Date: December 28, 2004 By: 3 ~"'IVlMERCIAL GUARANTY. , '.~I" ~ ~y?zcJ ~ ',;,,~~~:lJateW! ifiii;,~pl~,r!!MM : inCOan{NQi/; :-::::::::::(:'::'::~::::.::":;::~::::( ... l:::::ii::::::::, . ...... ...-.....,.....w'.......-. ~.:.:>; .:::::::: (::::~:::.::::::Wi;.i::::::;';x.:.,: ............... ? iilnlU8l8i% ~:~~Bj~~~~~:;;r Borrower: LANDIS, INC. (TIN: 23-2443798) WOODCRAFT DRIVE MOUNT HOlLY SPRINGS, PA 17065 Guarantor: STEVEN J. CAPUANO 1229 BLOSSOM TERRACE BOILING SPRINGS, PA 17007 Lender: PNC BANK, NATIONAL ASSOCIATION 4242 CARLIS!..E PIKE CAMP HILL, PA 17001'""74 3'O() PC- AMOUNT OF GUARANTY. The amount 01 this Guaranty Is Unlimited. CONTINUING UNLIMITED GUARANTY. For good and valuable conslderatlon, S-reVEH J. CAPUANO ("Guaranlor") absolutely and unconditionally guarantees and promises 10 pay to PNC BANK, NATIONAL ASSOCIATION ("1.ender") or Its onler, In legal tender 01 the ....lIed Stales 01 America, the Indebtedness (as thattenn Is deflned beloW) 01 LANDIS, INC. ("Borrower") to Lender on the lerms and condlllons set forth In this Guaranty. Under this Guaranty, the liability 01 Guarantor Is unlimited and the obligations 01 Guarantor are conllnulng. DEFINITIONS. The following words shell heve the lolIowing meanings when used in this Guaranty: Borrower. The word "Borrowe" means LANDIS, INC.. Guarantor. The word "Guaranto.. means STEVEN J. CAPUANO. Guaranty. The word "Guaranty" means this Guaranty made by Guarantor for the benafll of Lender daled April 26. 1999. Indebtedness. The word "Indebtedness" is used in its most comprehensive sense and means and includes any and all of Borrower's liabilities, obligations, debts, and indebtedness to Lender, now existiflQ or hereinafter incurred 9.rli~~ted, including, without limitation. all loans, advances. interest. costs. debts. overdraft indebtedness, credit card indebtedness. ;ease obliQatid'ns.. other obiigations. and liabilities of Borrower. or any 01 them, and any present or future judgmerlts against Borrower, or any of them; and whether any such Indebtedness is voluntarily or involuntarily incurred, due or not due, absolute or contingent, liquidated or unliquidated, deterrnipJtd';o.r~undeterJ'!li~; whether Borrower may ,be nable individually or jointly with oth~. or pJimariJy or secondarily, or as guarantor or surety; 'whether recovery, (?n the Indebtedness may be Of may become barred or unenforceabie against Borrower for any reason whatsoever; and whether the.rndebtednesS arises from transactions which may be voidable on account of infancy, insanity, ultra vires, or othef'Nise. Lender. The word '1..ende" means PNC BANK, NATIONAL ASSOCIATION, its successors and assigns. '. ......... -. i. ' Related Documents. The words "Related Documents" _mean and include without JitDit3tion :an. promisSory notes, credit agreements, loan agreements, environmental agreements, guaranties. security agreements, mortgages, deeds of. trust, and aU other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. NATURE OF GUARANTY. Guarantor's Iiabiiity under this Guaranty shall be open and continuous for so long as this Guaranty remains in force. Guarantor intends to guarantee at all times the performance and prompt payment when due, whether at maturity or eartler by reason of acceleration or otherwise, of all Indebtedness. Accordingly, no payments made upon the Indebtedness will discharge or diminish the continuing liability of Guarantor in connection with any remaining portions of the Indebtedness or any of the Indebtedness which sUbseCjuently arises or is thereafter incurred or contracted. DURATION OF GUARANTY. This Guaranty will take effect when recaived by Lender without the necessity of any acceptance by Lander. or any notice to Guarantor or to Borrower, and will continue in full force until all Indebtedness incurred Or contracted before receipt by Lender of any notice of ravocation sheil have been fuily and flnally paid and satisfled and all olher obiigations of Guarantor under this Guaranty shall have been performed in full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to Lender, by certified mail, at the address of Lender listed above or such other place as Lender may designate in writing. Written revocation of this Guaranty wiil apply only to advan""" or new indebtedness created after actual receipt by Lander 01 Guarantor's wrttten revocation. For this purpose and without limitation, the term "new Indebtedness" does not include Indebtedness which at the time of notice of revocation is contingent. unliquidated, undetermined or not due and which later becomes absolute, liquidated, det8fmined or due. This Guaranty wjJJ continue to bind Guarantor fer all Indebtedness incurred by Borrower or committed by Lender prior to receipt of Guarantor's written notice of revocation, induding any extensions, renewals, substitutions or modifications of the Indebtedness. All renewals, extensions, substitutions. an.d modifications of the Indebtedness granted after Guarantor's revocation, are contemplated under this Guaranty and, specifically will not be considered to be new Indebtedness. This Guaranty shall bind the estate of Guaranlor as to Indebledness created both before and after the death or Incapacily of Guarantor, ragardless of Lender's actual notice of Guarantor's death. Subject to the foregoing, Guarantor's executor or admlnislrator'of:other legal representaflve may ferminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect. - 'R'eiJease of any other guarantor or tennination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this Guarartty;-"Arevocation recetv9d by lender trom anyone or more GuarantQfS shali not affect the iiabiiity of any remaining Guarantors under this Guaranty."-It Is anllclpated.that ftuctuatlons may occur In the aggregate amount 01 Indebtedness covered by thl. Guaranty, ancl " I. speclflcally acknowledgi!cl and agreed by Guarantor that reductions In the amount 01 Indebtedness, even 10 zero dollars ($0.00), prior to written revocatlo.l"i)f this GuarantyllY Guarantor Shall not conatIlUte a lennlna/km olthl. Guaranty. Thls Guaranty Is binding upon Guarantor and Guarantor'. heirs, succeasors and assign. so long as any 01 tho guaranleed Indebtedness remalns unpaid and even lhough the Indebtedness guaranl~. may from Ume to lime be :zero dollars ($0.001, GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lander, eitherb8tCre 0' aller any reVocation heraof, without noUCe or demand and wlthoutle.ssenlng Guarantor's liability under this Guaranty,from lime 10 IIriio!;':(a~pi1of Io.revqcatlon as set forth above,lo IIUIke one or more addJUonaJ secured or unsecured loans to Borrower. to lease equipment or other goods to Borrower, or otherwise to extend additional credit to BarTOW'er; (b) to alter. compromise, renew, extend, aceelerate. or otherwfse change one or more Umea the Ume for payment or other terms 01 the Indebtedness or any part 01 the Indebledness, InclUding Increases and decreases 01 the rate 01 Interest on tile tndebtedness; extensions may be repeated and may be lor longer Ih.. the orlgfnalloan lenn; (c) 10 lake ancl hokl securtty lor the payment 01 this Guaranty or the Indebtedness, and exchange, enton:e. walve, subordinate, '""I or _ not to perfect, _ release..., suell securtty, wllh or without the substitution 01 new coItaleral; (d) 10 release, subsUtute, agree not to sue, or deal wllh anyone or more of Borrower's surelles, endorsers, or other guaranlors on any terms or In any manner Lender may chooae; (e) to delermlne how, when and what oppflcllflon 01 paymenla ancl .redlts shall be made on the Indebledness; (I) 10 opply suell security and dIrect the order or manner of sale tIlereol, In.ludlng wlthoutllmllallon, any nonjudicial sale permitted by the term. 01 the controlling security agreement or deed oIlrual, .. Lender In Its dlscrellon may determine; (g) 10 sell, Iransler, assign, or grant participations In all or any part 01 the Indebtednesa; and (h) 10 assign or tranaler this Guaranly In whole or In part. GUARANTOR'S REPRESENTATIONS AND WARRANTI';S.!Uarantor represents and warrants to Lender that (e) no representsttons or agreements fj../)tl), ''/1'' 04-2&-1999 Loan No COMMERCIAL GUARAl (Continued) Page 2 of any kind have been made tQ.,Guarantor .whlch wquld limit or qualify in any way the terms of this Guaranty; (b) this Guaranty is executed at Borrowe(s request and not at the. reQuest of Lendar, (c) Guarantor has full power, right and authority to enter into this Guaranty; (d) Ihe provisions of Ihis Guaranty do not conftlcl w~h or. rasult in a defa!jll under any agreement or other instrument binding upon Guarantor and do not resuit in a vioIaUon of any law. regulaUon, court d.!"""" or order ,appl~~le to Guarantor; (e) Guarantor has not and wnl not. w~houlthe prior written consent of Lender. sell, lease, assign, encumber, hypothecate. ,tran,~fer..~ ;ctherwi~. dispose of all or substantially all of Guarantor's assets. or any interest therein; (f) upon Lander's request. Guarantor w\l~ provide to Lender financial B,nd ,credit information in form acceptable to Lender, and ail such financial information which currently has been, and all future financial information which will be provided to Lender is and will be true and correct in all material respects and fairty present the financial condition of Guarantor as of the dates ttie financial information is provided; (g) no material adverse change has occurred in Guarantor's financial condition sirce th~ date of tt:le most recent financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's financllJ' condition; (h) no litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) ageinst Guerantor is pendIng or threatened; (i) Lender has made no reprasentation to Guarantor as to the creditworthiness of Borrower, and OJ Guarantor has established adequate means of obtaining from Borrower on a conUnuing basis information regarding Borrower's finaooal conditlon.Guarantoragrees t~ k~'.~~~ately informed from such means of any facts. events. 0( circumstances which might in any way affec:l Guarantor's risks under this Guaranty, and Gui!rantor further agrees that Lender shall have no obilgaUon to disclose to Guarantor any informaUon or documents acquired by Lender in the course of its. relationship with Borrower. GUARANTOR'S WAIVERS. Except as prohibited by applicable law. Guarantor waives any right to require Lender (a) to conUnue lending money or to extend other cred~ to Borrower; (b) 10 make any presentment, protest, demand, or nollce of eny kind. including nollce of any nonpayment of the Indebtedness or of any nonpayment related to any collateral, or nollce of any action or nonaction on the part of Borrower. Lender, any surety. endorser. or other guarantor in connection w~h the Indebtedness or in connection with the creaUon of new or additional loans or obllgaUons; (c) to resort for payment or to proceed directly or at once against eny person. including BOlTower or any other guarantor; (d) to proceed directiy against or exhaust any collateral held by Lender from Borrower. any other guarantor, or eny other person; (e) to give nolice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; (I) 10 pursue any other remedy within Lende(s power; or (g) to commit any act or omission of any kind. or at any time, with respect to any matter whatsoever. Guarantor also waives any and all rights or defenses arising by reason of (a) any ~one action" or -anfi-deflciency" law or any other law which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale; (b) any election of remedies by Lender which destroys or otherwise adversety affects Guarantor's subrogation }ights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (c) any disability or other defense of Borrower. of any other guarantor, or at any other persen, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in fun in legal lender. of the Indebtedness; (d) any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for !he Indebtedness; (e) any statute of limitations, if at any tlme any action or suit brought by Lender against Guarantor is commenced there is outstanding Indebtedness of Borrower to Lender which is not bSfl'ed by any applicable statute of limitations; or (f) any defenses given to guarantors at law or in equity other than actual payment. and performance ~f.the Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise, or by any third party, on the Indebtedness anq thereafter Lender is forced to remit the amount of that payment to Borrowe(s trustee in bankruptcy or to any similar person under any federal or state _bankruptcy law or_law :~or the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of enforcement at this Guaranty. Guarantor further waives and agrees not'to assert or-claim at any.time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand. recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both. GUARANTOR'S UNDERSTANDING WITH RESPECT ,TO WAIVERS. Guarantor warrants and agrees Ihat each of the waivers set forth above is made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or pubflc policy, such waiver shall be effective onfyto the extent permitted by law or public policy. LENOER'S RIGHT OF SETOFF. In addition to all liens upon and rights of setoff against the moneys, securities or other property of Guarantor given to Lender by law, Lender shall have, with. respect to Guarantor's obligations to Lender under this Guaranty and to the extent permitted by law, a contractual security interest in and a right of setoff against, and Guarantor hereby assigns, conveys, delivers, pledges, and transfers to Lender all of Guarantor's right, title and interest in and to, all deposits, moneys, securities and other property of Guarantor now or hereafter in the possession of or on deposit with Lender, whether held in a general or special account or deposit, whether held jointly with someone else, or whether held fer safekeeping or otherwise, excluding however an IRA, Keogh, and trust accounts. Every such security interest and right of setoff may be exercised without demand upon or notice 10 Guarantor. No security interest or right of setoff shall be deemed to have been waived by any act or conduct on the part of Lender or by any neglect to exercise such right of setoff or to enforce such security interest or by any delay in so doing. Every right of setoff and security interest shall continue in full force and effect until such right of setoff or security interest is specifically waived or released by an instrument in writing executed by Lender. SIEORDINA nON OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees Ihat the Indebtedness of Borrower to Lender, whether now existfng or hereafter created, shall be prior to any claim that Guarantor may now have or hereafter acquire against Sorrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, Ie any claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower, through bankruptcy. by an assignment lor the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicabie 10 the payment of Ihe claims of both Lender arid Guarantor shall be paid to Lender and shall be first applied by Lender to the Indebtedness of Borrower to Lender. Guarantor does hereby assign to Lender. all claims which it may have or acquire against Borrower or against any assignee or trustee in bankruptcy of Borrower. provided however, that such assignment.shall be effective only for the purpose of assuring to Lender full payment in IegaJ tender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to Guarantor shall be marked with a legend that the same are subject to this Guaranty and shall be denvered to Lender. Guarantor agrees, and Lender hereby is authorized, in the name of Guarantor, from time to time to execute and tile financing statements and continuation statements and to execute such other documents and to take such' other actions-as Lender'deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. . MISCEllANEOUS PROVISIONS. The following mIsCellaneous provisions are a part of this Guaranty: Amendments. This Guara~ty. togeth~ ~ ~~~:Related Documents. constitutes the entire undlntanding and agntement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shan be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Applicable Law. This Guaranty has been delivered to Lender and accepted by Lender in the Commonwealth of Pennsylvania. If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of CUMBERLAND County, Commonwealth of Pennsytvania. Lender and Guarantor hereby waive the right to any jury trial in any action. proceeding, or counterclaim brought by either Lender or (,4-26-1999 Loan No ;OMMERC/AL GUARANTY (Continued) Page 3 G....ranlor against Ihe olher. This Guaranty shall be governed by and construed"'in ","""ordance with' the laws of the Commonweailh of Pennsylvania. .~~::.... .',! Attorneys' Fees; Expenses. Gusn.ntor agrees to pay upon demand all of Lende~s costs ..nd exp~nsas, i~IUdi"9 ..ttorneys' leas and Lender's legalexpensas, incurred in connection with the enforeamenl of this Guaranty. Lander may pay;somaone aI$8 to help enlorce this Guaranty, and Guarantor shall pay the costs and expenses of such anforeamen!. Cos!> ~nd expenses, include .Lender'~, ..ttorneys' fees and legal expenses whather or not there is a lawsuit, including attorneys' fees and legal expenses for bankruplcy pr"!'eedinIlS.(..nd including efforts to modify or vacate any automatic stay or inJunction), appeals. and any anticipated post-judgment collection se~ces. Guarantor also shall pay all court costs and such additional fees as may be directed by the court. '. ~ - Notlces. All notices requirad to be given by eilher party to the olher under this Gueranty. shall be in writing: m..y be sent by lelefacsimile (unless otherwi$8 required by law), and. except for revocation notices by Guarantor, shall be effective when actually delivered or when deposited with a nationally recognized overnighl courier. or when deposited in the Uniled States mail, first class postage, prep.aid, addressed to the party to whom the notice is to be given at the address shown above or to such olher addresses as either party may designate 10 the olher in writing. All revocation notices by Guarantor shall be in writing and shall be effective oniy upon delivery to Lender as provided above in II1e section titled 1JURATTON OF GUARANTY." It there is more than one Guarantor. notice 10 any Guaranlor will constitute..notice to an Guarantors. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's current address. Interpretation. In all cases where there Is more lhan one Borrower or Guarantor, then all words used in this Guaranty in Ihe singular shall be deemed to have been used in the plural where the context and constn.Jction so require; and where there is more than one Borrower named in thiS Guaranty or when this Gusn.nty is &xaculed by more than one Guaranlor, the words "Borrower" and "Guarantor" respacUveiy shall mean all and anyone or more of them. The words "Guarantor," -Sorrower," and Lander' include the hei~. successors. assigns. and transferees at each ot them. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or deftne the provisions 01 this Guaranty. If a court of competent iurisdlction finds any prov;sicn of this Guaranty to be invalid or unenfofcea.ble as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances. and all provisions of this Guaranty in all other respects shall remain valid and enforceable. If any ona or more of Borrower or Guarantor are corporations or partnerships. it is not necessary for Lender to inquire Into the powers of Borrower or Guarantor or of the officers. directors, partners. or agents acting or purporting to act on their behalf, and any Indebtedness made or created in reliance upon the professed, exercise of such powers shall be guaranteed under thiS Guaranty. Waiver. Lender shall not be deemed to have waived any rights under this Guaranty un~ss such ,waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a wai,,:sr of such right or a~y .other right. A waiver by Lender of a provision of this G....ranty shall not prejudice or constitute a waiver of Lende~s right otherWise to demand 'strict compliance wnh lhat provision or any other provision of this Guaranty. No prior waiVer by Lender, nor any course of .dealing bet'oHeen Lander and Guarantor, shall constitute a waiver of any of Lender's rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of lender is required under this Guaranty, the granting of such consent by Lender in any instance shall not constitute continui~g consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in t.~esole :d~5C:'eU?n of Lender. LIMITED RECOURSE AS TO NOK-APP\.ICANT SPOUSE. Notwithstanding anything contained heiein to the contrary. it is agreed that. unless an exception 10 the reQwrements of Regulation B of the Board 01 Governors of the Federal Reserve System appiies in.connecUon with Ihe extension of the Indebtedness and the execution of this Guaranty, the spouse WhO is deemed not to be Ihe "applicant for credir for purposes ot SUCh regulaUon (the "Non-Appiicant Spouse") shall be personajiy Iiabie under Ihis Guaranty only With respact to assets held Jointly as of the date hereof or hereafter acquired. and the lien of any judgment, order ar ather reUef against the Non-Applicant Spouse shall be limited thereto. Nothing herein, however, shall limit the Lender's righ'ls against any person, firm or entity other Ihan the Non-Applicant Spouse. FINANCIAL INFORMATION (GUARANTOR). Guarantor shail deliver or cause to be delivered to Lender not later than 120 days after the close of each calendar year: (a) a copy of the federal income tax return filed by Guarantor I which tax return shall be a true and complete copy of the rei urn filed by Guarantor with the Internal Revenue SeMce; and (b) an updated personal financial statement of GtJarantor. CONFESSION OF JUOGMEllT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY 11ME FOR GUARANTOR AFTER A DEFAULT UNDER THIS GUARANTY. AND WITH OR WITHOur COMPLAINT. FiLED. AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENl1RE PRINCIPAL BALANCE OF THIS GUARANTY. ALL ACCRUED iNTEREST. LATE CHARGES. AND ANY AND ALL AMOUNTS EXPENOED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAl. SECURING THE INDEBTEDNESS TOGETHER WiTH INTEREST ON SUCH AMOUNTS. TOGETHER WiTH COSTS OF SUIT. AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRiNCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, Bur IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLl..ARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTiONS MAY iSSUE IMMEDIATELY; AND FOR SO DOING. THIS GUARANTY OR A COPY OF THIS GUARAN'TY VERIFIED BY AFFiDAVIT SHALL BE SUFFiCIENT WARRANT. THE AUTHORITY GRANTED IN THiS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY Ar>r'f EXERCISE OF THAT AUTHORiTY. Bur SHALL CONTINUE FROM 11ME TO TTME AND AT ALL TTMES UNTIL PAYMENT iN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY. GUARANTOR HEREBY WAIVES ANY RIGKT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECT10N WITH ANY SUCH CONFESSION OF JUDGMENT. EXCEPT ANY NOTTCE AND/OR HEARING REQUIReD UNDER APPliCABLE LAW WITH RESPECT TO EXECUTiON OF THE JUDGMENT. AND STATES THAT EITHER A REPRESENTA11VE OPIlEND!;R SPECIFICALLY' CALLED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTCNl10N OR GUARANTOR HAS BEEN REPRESENTED 'BY iNDEPENDENT LEGAL COUNSEL. ;.,' ':.'. .-;.. EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ All. THE PROVISIONS OF, THIS.(lUARANTY AHD AGREES TO ITS TERMS. IN ADOITION, EACH GUARANTOR UNDERSTANOS THAT THIS GUARANTY IS EFFEqlVE \PON.'GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AHO THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED "OURATION OF GUARANTY." NO FORMAL ACCEPTANCE BY.LENOER'IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS ANTI IS DATED APRIL 26,1999. '" . ., ." THIS GUARAN BEEN SIGNED ANO SEALED BY THE UNDERSIGNED. .:,C:; . "':::;:':~~~:~:l:~HK~:~1S:!?:t.fi~01[mdl~~~~?~mfr0~~f~~~tt!~tHr.i.:~{%r_) . CAPUANO mm..m.. \)4-26-1999 Loan No COMMERCIAL GUARAI ! (Continued) Page 4 INDIVIDUAL ACKNOWLEDGMENT ,- : '.~:~, STATE OF Notatfal Seal HaBobette J. Sh~y, Not3l"j Public ~en Twp.. ClJl'l'SJen-....... Co My Cammission j:'....;...~<=' ,,~.'''' \:nry -~,'w.;:. ,".c,:v 12,2,CQ1 Member, PennsylvanIa AS~c;a~;c'" 01 ! I U'I .~c rigs On this. the ...J(, day of A- ii:iIJ, , 19 C,e, , before me - Z. ;J. S 1 fA.-e undersigned Notary Public. personally IIllP ed STEVEN J. CAPuANO: known to me satlsfeclorily proven) 10 be the person subscribed to the within instrument, and aoknowledgecl that he or she executed the same for the purposes therein contained. In witness whereof, I hereunto set my lIan<I and omclal seal. ) )8$ I COUNTY OF the ose name is LASER PAO, Reo. U.S. "at. I. T.M. Off., Ver. 128b (e) 1888 CFI Pl'oServ!c8lll. Inc. All rIghts reserv.I1.{PA-E20 LAN01S3.I.N C29.0VLI '.~<" -,. ".,-, i..:r:~1./.. ...... ':-' ~ "'" i;"'., --:;-.., f -~ g f~ .1 ': ~-~ ; f ~ ~J.,,'~~""': ~ ~n:_~, ~i~.j ~~)~"i'~ V .,,,' ';-.",,=,~:": ~V ".:.I ~~ISSORY NOTE ~c C( L/L/ Jj. Y &:;J//'f7'i6{, ;[~~~Wli;; lerences in the shaded area are for Lender's use onl ,_..,'...... ,'~. 7ZC PC; Borrower: LANDIS, INC. (TIN: 23-2443798) WOODCRAFT DRIVE MOUNT HOLLY SPRINGS, P A 17065 Lender: PNC BANK, NATIONAl ASSOCIATION 4242 CARLISLE PIKE CAMP,HILL, PA 17001-ll874 ~'.'. ""'C. '...,' 'Principal Amount: $120,000.00 Interest Rate: 7.900% . Date of Note: April 26, 1999 PROMISE TO PAY. LANDIS, INC. ("Borrower") promises to pay to PNC BANK, NATIONAl ASSOCIATION ("Lender"), or order, In lawful money of Ihe United States of Amerlca, Ihe prlnclpal amount of One Hundred Twenty Thousand ,&. DOI1,OO Dollars ($120,000.00), together wllh Interest allhe rale ol7.900% per annum on the unpald prlnclpal balance from Aprlr26;-1999, unlll'pald-In full~ "" , ...:; . , .n '. ".l PAYMENT. Borrower will pay Ihls loan In 119 regular payments 01 $1,005.02 each ones,one lriegula(lasl, payment estimated at $83,782.34. Borrower's ftrst payment Is due May 26, 1999, and all subsequenl payments are due on,lhe same day, 01 each monlh after that. Borrower's nnal payment due Aprll 26, 2009, will be lor alt prlnclpal and alt accrued Interest nof y~! ~..Id. ~ayments. [ndude principal and Inlerest. Tne annual inlerest rate for this Note is computed on a 365/360 basis: Ihat Is, by applying the ratio of thi' ..nnuaU~lerest rale over a year ot 360 days. multiplied by the outstanding principal balance. multiplied by the actual number of days the principal balance Is outstanding. Borrower will pay Lender at Lender's address shown above Of at such other place as Lender may designate in writing. Unless otherwise'~greed or required by applicable law, payments will be applied first 10 accrued unpaid interest, then to principal, and any remaining amount to ~ny unp,aid collection costs and late charges. PREPAYMENT PENAlTY. Upon prepayment of this Note, Lender IS enlltled to Ihe lollowlng prepayment penally: On any bus/ness day, Upon payment of all accrued unpaid Inleresl on this Note, and upon live (5) bus/ness day's prior written notice to Lender, the Borrower may prepay all or part of the outstanding principal of this Note; provided, however, that the Borrower also agrees to pay Lender as compensation for the cost of advancing nXed rate funds, an amounl equal to the Cost of Prepayment. "Cosl of Prepayment" means an amount equal to the present value, If positive, of the pro<luct of (a) the difference between 0) the yIeld, on the dale of this Iiote, 01 a U. S. Treasury obllgallon with a maturity similar to this Note minus (II) the yield on Ihe prepayment date, 01 a U. S. Treasury obligation with a maturlly similar to the remalnlng maturity of this Note and (b) the principal amount to be prepaid, and (C) the number of years, Including fractional years, from the prepayment date to the maturity date of this Note. The yield on any U. S. Treasury obligation shall be determined by reference to Federal Reserve Statistical Release H.15(519) "~Iected Interest Rates". For purposes of making present value calculations, the yield 10 maturlly 01 a similar malurlty U. S. Treasury obligation on the prepayment date shall be deemed the discount rate. The Cost of Prepayment shall also apply to any payments made after accelerallon of the malurlty of Ihls Note. Except for the foregoing, Borrower may pay all or a portion of the amount owed eartier than il is due. Early, payments Will not. unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment.schedule: F.lather,.Jhey will reduce the principal balance due and may result in Borrower making fewer payments. ..__ ,_ LATE CHARGE. If a payment is 15 days or more lale, Borrower will be charged 5.000% of the unpold portion or the regulariy scheduled payment or $100.00, whichever Is less. DEFAULT. Borrower will be in default if any of the following happens: (a) BOrTower 'aiis tc'inake'any paymentwhen due. (b) Borrower breaks any promise Borrower has made to Lender, or Borrower fails to comply with or to'p'erform wN$'n 'duo'any ofherferm, obligation, covenant, or condition contained in this Note or any agreement related to this Note, or In any other agreement or los'n'Sorrower has wilhLender. (c) Sorrower defaults under any loan, extension of credit, security agreement., purchase or sales agreement, 0; any ctl1er.,agreementJl,iO.favor of any other creditor or person that may materially affect any of Borrower's property or Borrowers ability to repay this "Iote or p~orm; Bon:owe(~ obliilations under this Note or any of the Relaled Documents. (d) Any representation or statement made or furnished to Lender by Borr<lwe, or on Boriowe[s, behall is false or misleading in any material respec1 either now or at the time made or furnished. (8) Borrower becomes lnsol>v;ent, a rece,iver ,is ,~ppointed tor any part of Borrower's property I Borrower makes an assignment for the benefit of creditors, or any proceeding Is commenced either by ,Borrower or against Borrower under any bankruptcy or insolvency laws. (I) Any credilor tries to take any of Borrower's property on or.in whiCh Lendar has a lien or security inlerest. This includes a garnishment of any of Borrowers accounts with Lender. (g) Any guarantor dies or any of the .other events described In Ihis default section occurs with respect to any guarantor 01 this Note. (h) A material adVerse Change occurs In Borrower's financial condition, or Lander believes the prospect of payment or perlormance of the Indebledness is impaired. , LENDER'S RIGHTS. Upon deteult, Lender may. after giving such notices es required by applicable law, declare the enlire unpaid principal belance on this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. Upon default, including failure to pay upon final maturity, lender, at its option, may also, 1f permitted under applicable law, increase the Interest rale on this Note 5.000 percentage points, The Interest rate will not exceed the maximum rate permitted by applicable law. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower also will pay Lender that amount. Tnis includes. subject to any limits under applicable law. Lender's attorneys' fees and Lender's legai expenses whether or not there is a lawsuit. including attorneys' fees and legaJ expenses for bankruptcy proceedings (including eHorts 10 modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection seMces. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to aJl other sums provided by law. If judgment Is entered in connection with this Note, interest will continue to accrue on this Note after jUdgment althe existing interest rate provided for in this Note. Tnls Note has been delivered to Lender and accepted by Lender In the Commonwealth 01 Pennsylvania. If there Is a lawsuit, Borrower agrees upon Lender's'request to submit to the Jurisdiction of the courts of CUMBERLAND County, Ihe Commonwealth of Pennsytvanla. Lender and Borrower her~by waive the rlghl to any jury lrIalln any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. This ,!ote shan be governed by and construed In accordance with the laws of the Commonwealth 01 Pennsylvania. ,':-: , ' , RIGHT OF SETOFF. Borrower grants to Lender a contractual security Interest In, and hereby assigns, conveys, delivers. pledges, and transfers to Lender all Borrower's right, lille and Interesl In and to, Borrower's accounts with Lender (w~1h~ .s;hecking, savings., or some other account), including without IImitallon ell accounts held Joinlly with someone else and all accounts Borrower may, open In Ihe future. excluding however all iRA and Keogh accounts, and all trust accounts for which the grant of a security Interest would be prohib!tedby law. Borrower authorizes Lender. to lhe extent permitted by appUcable law, to charge or setoff all sums owing on this Nole against'any and.~!~SUC~'~~O~~~,'" -;~;~'J~ COLLATERAl. Tnis Note is secured by a Mortgage dated April 26, 1999.-,to Len~r"qn:,real property located in CUMBERLAND County, CommonWealth of Pennsylvania, all the terms end condittons 01 which are here9llllCorporatad an.d m.de,~part. ,,!, \hls Note. YEAR 2000 COMPLIANCE. Borrower has reviewed the areas within Its buSiness and opo,..afions wh./ch,could be aversely affected by, and has developed or is developing a program to address on e timely basis Ihe rtsk Ihat cerlaln computer 'applicetions used by Borrower may be unable 10 recognize and pertorm property date-sensllive functtons Involving dales prior to and after oeeember'31~ 1999 (the "Year 2000 Problem1. The Vear 2000 Problem will not result, and is not reasonably expected to result, In any matenal adverse effeet on the business, properties, assets. financial C.,J)16,1 ''/3'1 il4-26-1999 Loan No -:n.;- " .";1"::: ...., :- <I,} .':'~' ','_ ;.~'~... .. "'J _"" :'l~ rl.F.:}ll" t. A;",f...;'r~' eR.OI\iIISSORY NOTE .. (Continued) Page 2 con<fltion, results of operations or prospectS of Borrower, or the ebility of Borrower to duly and punctually payor perlorm Its obligations hereunder and .,!Mer ll18 Related Documents. GEN.BW.. PROVISIONS. Lender mey delay Of' forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other peBOn who signs, guarantees or endorses this Note, to the extent allowed by law, wolve presentment, demand lor peyment prolest and notice of dishonor. Upon any chenge In the terms of this Note, and unless otherwise expressly slated in writing, no perty who signs this Note, whether as maker. guerentor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for eny length of lime) this ioan, or release any party or guarantor or collateral; or impair. fail to realize upon or perleet Lender's security interest in the collateral; and lake any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also 8gree that Lender may modity this loan wilhout the consent of or notice to anyone other than the party with whom the modification is made. If any portion of this Note is for any reason determined to be unenforCeable, it will not affect the enforceability of any other provisions of Ihis Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS AI<< ATTORNEY OR THE PROTHONOTARY OR a..EAK OF A/oN COURT IN THE COMMONWEALTH OF PENNSYLVANIA. OR ELSEWHERE, TO APPEAR AT A/oN TIME FOR BORROWER AF'l'EA A DEFAUlT UNDER nilS N01E,..AND WITH OR WITHOUT COMPLAINT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAiNST BORROWER FOR THE ENTIRE .PRINCIPAL BALANCE OF THIS N01E, ALL ACCRUED INTEREST, LATE CHARGES, AND ANY ANO ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO A/oN COLLATERAL SECURING THIS NOTE TOGETHER WITH INTEREST ON SUCH AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLEcrlON, BUT IN A/oN EVENT NOT LESS THAN FIVE HUNDRED DOLlARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALl BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS N01E TO CONFESS JUDGMENT AGAINST BORROWER SHALl NOT BE EXHAUSlCD .BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALl CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT fN'F\JtL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TOA HEARING IN CONNEcrlON WITH A/oN SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNDER'APPLICABLE LAW WITH RESPECT TO EXECUTION OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTATIVE OF LENDER'SPECIFICAl:LY CAl.LED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL " ,..",:' ';\'.';'~ PRIOR TO SIGNING THIS NOTE, BORROWER.REAo AND UNDERSTOOD All THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEO.GES'RECEIPT OF A COMPLETED COpy OF THE NOTE. .,. I ..." AND SEALED BY THE UNDERSIGNED. f~~~~;f~m~~j~\{rrJ.~~~~~gt~1;I~itr4~~~[1.*~~1~~~~~.:i~flrffi~~tiB) UANO, PRESIDENT .-..... By: JOSEPH V. APUANO, SECRETARYIT'REASURER L.ASER PFlO, Reg. U.S. Pat. & T.M. Off" Ver. 3.2eb (c) 1989 CFl oServlce.s, Inc::. AU rights reserved. [PA-020 LANDIS3.LN C29.0VI.I . ....,... ".'- .. ~ '- " '. ; 'J ,,' ''',' ......'- . '.~ I.' ~......'. 'r~.' , ",:,: . -.", ~ \i~ ")I~Y(!!j..A ..... ~ II" '~';I'I',~~'" "r' . ,.1' . .!. ~: .":t:.. .;' l;;~' .- " ., FORBEARANCE AGREEMENT THIS AGREEMENT is made as of September 25, 2003, by and among LANDIS, INC. (the "Company") and STEVEN J. CAPUANO and KIMBERLY L. CAPUANO Gointly and severally, the "Capuanos"), and PNC BANK, NATIONAL ASSOCIATION ("Bank"), with the acknowledgment and consent of JOSEPH V. CAPUANO and NANCY P. CAPUANO. Recitals R-l. The Company and the Capuanos are referred to in this Agreement jointly and severally as the "Obligors". The Obligors have executed and delivered to the Bank (or a predecessor which is now known by the Bank's name as set forth above), one or more promissory notes, letter agreements, loan agreements, security agreements, mortgages, pledge agreements, collateral assignments, guaranty agreements, and other agreements, instruments, certificates and documents, some or all of which are more fully described on attached Exhibit "A", which is made a part of this Agreement (collectively, as amended, supplemented and/or restated from time to time, and whether or not specifically described in Exhibit "A", the "Loan Documents"), which evidence or secure some or all of the Obligors' obligations to the Bank for one or more loans or other extensions of credit, or other direct or indirect indebtedness to the Bank, including specifically without limiting the general nature and effect of this provision the loans and line of credit described in Section 1 of this Agreement and in Exhibit "A" to this Agreement (collectively, the "Obligations"), the collateral and security for which (collectively, the "Collateral") is more particularly described in the Loan Documents. R-2. The Obligors are in default of their obligations under the Loan Documents for failure to comply with certain material covenants and agreements contained therein. 1 L1hllJ1 / 'r If R-3. The Obligors have requested Bank to forbear from exercising its rights and remedies against the Obligors and the Collateral and their respective other property, and to provide the Obligors with additional time to pay the Obligations while the Obligors continue to make regular, scheduled payments of the Obligations. R-4. Bank has agreed to the Obligors' requests, subject to the provisions of this Agreement. Aereement NOW THEREFORE, in consideration of the foregoing Recitals, which are an integral part of this Agreement, and of the agreements hereinafter set forth, and intending to be legally bound, the Obligors and Bank agree as follows: l.a. The principal amount outstanding under the Line of Credit (as defined in Exhibit nAn) as of the date hereof is $579,930.83. The availability of advances under the Line of Credit has been, and is hereby, terminated, and the Company shall not be entitled to receive, and the Bank shall not be obligated to make, any additional advances under the Line of Credit. The interest rate payable on the principal amount outstanding at any time under the Line of Credit shall be a rate of interest per annum at all times equal to six percent (6%) over the Index (as defined in the Promissory Note for the Line of Credit). The Company shall make monthly payments of principal and interest on the Line of Credit in the amount of $5,578.89 on the date of each month as provided in the Promissory Note for the Line of Credit. 2 b. The principal amount outstanding under the $306,500 Loan (as defined in Exhibit nAn) as of the date hereof is $1,462.71. The Company shall make payment in full of the $306,500 Loan on October 4,2003. c. The principal amount outstanding under the $120,000 Loan (as defined in Exhibit "A") as of the date hereofis $107,427.75. The interest rate payable on the principal amount of the $120,000 Loan outstanding at any time shall be thirteen percent (13%) per annum. The Company shall make monthly payments of principal and interest on the $120,000 Loan in the amount of $1,246.82 on the date of each month as provided in the Promissory Note for the $120,000 Loan. d. The principal amount outstanding under the $88,000 Loan (as defined in Exhibit "An) as of the date hereof is $13,918.45. The interest rate payable on the principal amount of the $88,000 Loan outstanidng at any time shall be thirteen percent (13%) per annum. The Company shall make monthly payments of principal and interest on the $88,000 Loan in the amount of $1,785.41 on the date of each month as provided in the Promissory Note for the $88,000 Loan. e. The principal amount outstanding under the Capuano Loan (as defined in Exhibit nAn) as of the date hereof is $112,898.21. The interest rate payable on the principal amount of the Capuano Loan outstanding at any time shall be fourteen percent (14%) per annum. The Capuanos shall make monthly payments of principal and interest on the Capuano Loan in the amount of $1,393.66 on the date of each month as provided in the Promissory Note for the Capuano Loan. f. On April 1, 2004, the entire outstanding amount of the Obligations, including all of the outstanding principal, all of the accrued and unpaid interest, all of the 3 prepayment charges that are payable under the Promissory Notes for the $88,000 Loan, the $120,000 Loan and the Capuano Loan as a result of prepayment of the principal amount outstanding thereunder prior to the maturity dates of such Loans as provided in such Promissory Notes, and any and all other sums due or payable under or in connection with the Obligations and/or the Loan Documents, shall be due and payable in full, without notice or demand, or setoff, counterclaim or deduction of any nature. 2. Simultaneously with execution of this Agreement, the Obligors shall (a) pay to Bank a non-refundable forbearance fee of $4,350.00, which the Obligors acknowledge and agree has been fully eamed by Bank, (b) reimburse the Bank for $190.00 paid by the Bank for lien searches with respect to the Company's and Capuanos' real and personal property, and (c) payor reimburse Bank for the fees and costs of the Bank's attomeys incurred or paid by Bank as a result of the Obligors" defaults of their obligations to Bank, including without limitation for the preparation, negotiation and implementation of this Agreement. 3. The Obligors shall cooperate with the Bank in obtaining any appraisals or environmental assessments or investigations, including without limitation providing access to the Collateral by the Bank and its employees, agents and representatives and providing interviews with the Bank and its employees, agents and representatives, and shall: a. Immediately upon demand therefor, payor reimburse the Bank for the appraisals that will be obtained by Bank with respect to the Collateral; b. Immediately upon demand therefor, payor reimburse the Bank for any environmental assessments or investigations obtained by the Bank with respect to any of the Collateral. 4 .. 4. Simultaneously with execution of this Agreement, as additional collateral and security for the Obligations (which shall also be included in the definition of "Collateral" as provided in this Agreement), the Obligors shall deliver to the Bank all titles to all of the Company's vehicles that were not encumbered by other creditors as of August 22, 2003, and such completed and signed documentation as may be necessary or incidental for the Bank's encumbrance to be noted on all such vehicle titles. 5. Simultaneously with execution of this Agreement, as additional collateral and security for the Obligations (which shall also be included in the definition of "Collateral" as provided in this Agreement) the Capuanos shall execute and deliver to the Bank, in recordable form, the Bank's form(s) of mortgages to be recorded as liens against the real property occupied by the Company and identified as the tax parcel nos. 40-31-2187-052, 40-31-2187-053 and 40-31- 2187-053A, Woodcraft Drive, Mt. Holly Springs, and against the Capuanos' residence known as 1229 Blossom Terrance, in Monroe Township, Cumberland County (tax parcel no. 22-12-0348- 182). 6. The Company shall close its deposit account currently maintained with the Bank by October 31, 2003. If the Company does not close its deposit account by that time, the Bank shall have the right to close the account without notice to the Company. 7. If the Capuanos do not close any such deposit account, the Bank shall have the right to close any such deposit account without notice to the Capuanos or either of them. The Caupanos o shall immediately close any deposit account currently maintained with the Bank by either or both of them. In addition, the Capuanos hereby authorize the Bank to, and the Bank shall have the right to and shall, terminate and close the unsecured consumer line of credit made available by the Bank to the Capuanos or either of them. 5 8. Bank agrees, without waiving any existing default of the Obligors or any declaration of any existing default of the Obligors, or any demand for payment of all or any part of the Obligors' indebtedness to Bank, or any acceleration of the Obligors' indebtedness to Bank, or any of Bank's rights or remedies against the Obligors or the Collateral or the Obligors' respective other property, to forbear from proceeding against the Obligors and the Collateral and the Obligors' respective other property until the occurrence of a default of any of the Obligors' obligations to Bank under this Agreement, on or after the date of this Agreement. However, notwithstanding the preceding sentence, the Company's failure to comply with the Tangible Net Worth covenant and the Debt Service Coverage Ratio covenant contained in any of the Loan Documents shall not constitute default under this Agreement. 9.a. The Obligors hereby reaffmn, affmn, ratify and confmn the Obligors' absolute and unconditiona11iabiIity to make all payments and to observe and perform all of the duties, obligations and other agreements of the Obligors under or in connection with the Obligations and the Loan Documents, subject only to any express modification contained in this Agreement. Except as expressly set forth herein, nothing contained in this Agreement releases, limits, or otherwise affects in any way or at any time the liability of any of the Obligors for or with respect to any of the Obligors' obligations and agreements under or in connection with the Obligations or the Loan Documents. This Agreement does not evidence or represent in any way new indebtedness or tsatisfaction of any of the Obligations. All provisions of the Loan Documents remain in full force and effect, enforceable by the Bank in accordance with the provisions of each of them, except as expressly modified hereby, including without limitation any provisions for confession of judgment, waiver of the right to trial 6 by jury or venue or forum selection contained in any of the Loan Documents. Nothing contained in this Agreement waives or should be construed as a waiver of any of the Bank's rights and remedies under the Loan Documents, or at law or in equity. b. The Obligors hereby acknowledge, agree and affirm that (i) the Obligors are absolutely and unconditionally liable to the Bank under any guaranty agreement executed in favor of the Bank by any of the Obligors (each, a "Guaranty"), which Guaranty is a guarantee of payment, and not merely collectibiIity, of the Obligations under the Loan Documents, (ii) the Obligors' liability to the Bank under any such Guaranty and with respect to the Obligations and the Loan Documents is primary and direct, and (ui) the Obligors have no defenses, setoffs or other claims with respect to the Obligations or the Loan Documents or any such Guaranty. c. All of the provisions of the Loan Documents, as modified hereby, are incorporated herein by reference and made a part hereof as if set forth in full herein, and all of the provisions of this Agreement are incorporated into the Loan Documents and made a part thereof as if set forth in full therein. The provisions of this Agreement are and will be deemed to be supplemental to, and not in derogation of, the provisions of the Loan Documents, whenever possible. However, if there is any conflict or inconsistency between or among the provisions of the Loan Documents, and this Agreement, the provision(s) determined by Bank in its sole discretion to be applicable will govem and control the resolution of any such conflict or inconsistency, and the Obligors agree to be bound by Bank's determination. 7 10. Bank's agreements contained herein are conditioned upon and subject to the following representations, warranties, covenants and agreements of the Obligors: a None of the Collateral has been or will at any time be used in any manner so as to cause any contamination of the environment or any environmentally threatening condition in violation of, or which may require remediation under, any applicable law, regulation, rule, ordinance, requirement, restriction, covenant, order or decree. b. None of the Collateral has been or will at any time be used in violation of any law, regulation, ordinance, requirement, restriction, covenant, order or decree which may result in forfeiture of any of the Collateral. c. The Company is not entitled to and shall not make, and none of the Obligors are entitled to or shall receive, any payment of any debt or obligation owed by the Company to any of the Obligors, except payments of rent for the Company's occupancy of the business premises. The Company shall not make any payment of any Subordinated Debt as defined and otherwise provided in the Subordination Agreement dated July 6, 2001, among Joseph V. Capuano, the Company and the Bank. The Company shall not pay any dividend or make any other distribution on the Company's stock except in compliance with the Loan Documents. d. The Obligors shall furnish or cause to be furnished to the Bank, not later than forty- five (45) days after the end of each of the Company's fiscal quarters, financial statements for each such quarter, including detailed schedules of accounts receivable aging and accounts payable aging, all in form and content satisfactory to the Bank. In addition, the Obligors will furnish or cause to be furnished to the Bank such information and statements, lists of assets and liabilities, inventory schedules, 8 budgets, forecasts, tax returns, and other reports with respect to the Company and the Company's business operations, and with respect to the Capuanos' financial condition, as Bank may request from time to time. e. In addition to all liens upon and rights of setoff against the money, securities or other property of any of the Obligors given to the Bank by law, the Bank shall have, with respect to the Obligors' obligations to the Bank under the Loan Documents and this Agreement and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and the Obligors' hereby assign, convey, deliver, pledge and transfer to the Bank all of the Obligors' right, title and interest in and to, all deposits, moneys, securities and other property of any of the Obligors now or hereafter in the possession of or on deposit with, or in transit to, the Bank whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding, however, all IRA, Keogh, and trust accounts to the extent excluded by law. Every such security interest and right of setoff may be exercised without demand upon or notice to such of the Obligors. Every such right of setoff shall be deemed to have been exercised hereunder without any action of the Bank, although the Bank may enter such setoff on its books and records at a later time. II. The occurrence of anyone or more of the following IS a default under this Agreement: a The Obligors' failure to make any payment required under the provisions of any of the Loan Documents or this Agreement on or before the due date, on or after the date of this Agreement; 9 b. The Obligors' failure to observe or perform each and every one of the provisions on the Obligors' part to be observed or performed under this Agreement, or under any of the Loan Documents (except with respect to compliance with the financial covenants as provided in Section 8), on or after the date of this Agreement; c. If any representation, warranty, or financial statement or presentation of any of the Obligors at any time made to Bank in connection with the Obligations is determined by Bank to be materially incorrect or misleading, including without limitation any fmancial statements provided by any of the Obligors to Bank in accordance with the Loan Documents or this Agreement. 12. Upon the occurrence of any default, Bank may immediately and without notice or demand (a) at its option, increase each interest rate payable on the Obligations as provided in this Agreement by five percent (5%), and (b) exercise or proceed to enforce any or all of the rights or remedies available to Bank at law or in equity or under this Agreement, the Loan Documents, or some, any or all of them. Bank may exercise or proceed to enforce Bank's rights and remedies independently or cumulatively, concurrently or successively, against the Obligors, or the Collateral, or any other property of the Obligors, in connection with all of the Obligations, at any time or times and in any order as Bank may elect. Failure of Bank to exercise any right or remedy as provided herein at any time will not constitute a waiver of any such remedy or preclude the Bank from the subsequent exercise of any such remedy. 13. The Obligors each agrees that a default under any of the Loan Documents, this Agreement, or under any other agreement or document evidencing or securing any other indebtedness or obligation of any of the Obligors to Bank, on or after the date of this Agreement, is a default under all of the Loan Documents, this Agreement and all such other agreements and 10 documents. The Obligors each agrees that all of the Collateral is intended to be and is collateral and security for the entire amount of the Obligations, whether or not any particular Collateral is specifically identified as Collateral for any particular Obligations in the Loan Documents, and that all of the Collateral is intended to and will continue as collateral and security for the entire amount of the Obligations until all of the Obligations are paid in full, notwithstanding payment in full of the $88,000 Loan, the $306,500 Loan, the $120,000 Loan, the Line of Credit and/or the Capuano Loan before payment in full of all of the Obligations, and the Obligors hereby confirm and reaffirm the Bank's security interest, and hereby grant to the Bank a security interest, in and to all of the Collateral. The Obligors agree that all of the provisions of all of the Loan Documents, as modified by this Agreement, will remain in full and force and effect and be and remain applicable to all of the outstanding Obligations until all of the Obligations are paid in full, notwithstanding payment in full of the $88,000 Loan, the $306,500 Loan, the $120,000 Loan, the Line of Credit and/or the Capuano Loan before payment in full of all of the Obligations. 14. The Obligors, for themselves and any person or entity claiming by, through, from or under any of them, including without limitation their respective heirs, personal representatives, predecessors, successors and assigns, and their respective parent corporations, subsidiaries and affiliates, and the stockholders, directors, officers, employees, agents and attorneys of any of them, hereby release and agree to indemnify, defend and hold harmless Bank, its predecessors, successors and assigns, and its and their respective parent corporations, subsidiaries and affiliates, and the stockholders, directors, officers, employees, agents and attorneys of any of them (collectively, the "Indemnified Parties") harmless for, against and from any and all liability of any nature whatsoever, including without limitation any demands, claims, suits, proceedings or actions of any nature whatsoever, and any damages, losses, costs, expenses and fees (including attorneys' fees) or other 11 liabilities of any nature whatsoever, arising at any time before, on or after the date of this Agreement as a result of or in connection with any actions or inactions of any of the Indemnified Parties, whether intentional or negligent, which occurred on or prior to the date of this Agreement. This provision will survive any expiration or termination of this Agreement, whether by payment in full of the Obligations and all other sums due under or in connection therewith, or otherwise. IS. The Obligors will execute and/or deliver to Bank such additional documents, agreements or materials, or will take such further action, as Bank may reasonably request at any time and from time to time to give effect to the purposes or provisions of this Agreement. ] 6. All documents, agreements and materials of any nature whatsoever required at any time to be executed or delivered to Bank in connection with any of the obligations of the Obligors to Bank under this Agreement will be in form and substance satisfactory to Bank in Bank's sole discretion. 17. No modification of any provision of this Agreement shall be effective unless in writing and signed by all of the parties. 18. If at any time or times Bank believes it to be necessary or desirable to refer any aspect of the administration of this Agreement, or the enforcement of any provision of this Agreement, to any attorney, the Obligors will be liable to payor reimburse Bank for all reasonable attorneys' fees and costs incurred or paid by Bank as a result of such referral, which fees and costs will be due when incurred and payable immediately upon demand therefor. 19. Time is of the essence of the Obligors' obligations under this Agreement. 20. The provisions of this Agreement are severable and the invalidity or unerUorceabiIity of any provision will not affect or impair the remaining provisions, which shall remain in full force and effect. 12 21. This Agreement shall be interpreted and construed under the laws of the Commonwealth of Pennsylvania The Obligors shall only bring an action in, and the Obligors otherwise consent to the jurisdiction of, the Court of Common Pleas of Cumberland County, Pennsylvania, and the United States District Court for the Middle District of Pennsylvania, over all matters arising from or related to the Loan Documents and/or this Agreement. The Obligors and the Bank agree that any dispute or controversy between or among the Obligors or any of them and Bank would not lend itself to resolution or determination in trial by jury. Therefore, the Obligors and Bank each hereby voluntarily, knowingly and understandingly waives the right to trial by jury in any action or proceeding with respect to any dispute or controversy which may arise between or among them under or in connection with the Obligations, the Loan Documents or this Agreement and the subject matter of this Agreement. 22. This Agreement shall inure to the benefit of Bank, its successors and assigns, and all obligations of the Company and the Capuanos shall bind all of the Obligors and their respective heirs, personal representatives, successors and assigns. 23. The Obligors each acknowledges and agrees that each of the Obligors has had the opportunity to consult with an attorney or attorneys prior to execution of this Agreement, and the Obligors have consulted with an attorney or attorneys, or have waived and hereby acknowledge the waiver of the opportunity to do so, and the Obligors have executed this AgreementvoIuntarily, knowingly and understandingly. 24. The Obligors hereby voluntarily, intelligently and knowingly empower the Prothonotary or any attorney of any court of record to appear for the Obligors and to confess judgment for all amounts due or payable under this Agreement, with or without filing a complaint, including without limitation the entire balance of principal due or payable, late 13 charges, interest, expenses and fees, costs of suit and attorneys' fees equal to ten percent (10%) ofthe total of all such amounts, and the Obligors hereby release all errors or defects in any such action and the entry of any such judgment, and waive all laws exempting real or personal property from execution. 25. This Agreement may be executed in any number of counterparts, which will constitute one and the same Agreement. The Obligors each agrees that Bank is entitled to rely on a facsimile transmission of this Agreement containing the signatures of any of the Obligors and executed notary acknowledgements for the Obligors. However, the Obligors fwther agree to send the Bank the originally signed and notarized Agreement by nationally recognized overnight courier service on the date on which the facsimile transmission is sent to Bank. IN WITNESS WHEREOF, the Obligors and Bank have executed this Agreement as of the By: date first written above. ATTEST: // . By ;Y'ictc~) SECRET Y / , PNC BANK, NATIONAL ASSOCIATION By: ~Q,,- -Q 14 ACKNOWLEDGMENT AND CONSENT The undersigned, JOSEPH V. CAPUANO and NANCY P. CAPUANO, jointly and severally, hereby consent to the execution of this Agreement by LANDIS, INC., and STEVEN J. CAPUANO and KIMBERLY L. CAPUANO, and acknowledge and agree to the terms and conditions of this Agreement, and the undersigned hereby reaffirm, ratify, confirm and agree that all of the provisions of any of the Loan Documents to which either of the undersigned is a party, or both of the undersigned are parties, are unchanged and in full force and effect, enforceable by the Bank as provided therein, or at law or in equity. Without limiting the general nature and effect of the preceding paragraph, the undersigned specifically acknowledge that this Agreement and this Acknowledgment and Consent constitute written notice from the Bank of the occurrence of an Event of Default under the Loan Documents as provided in Section 3 of the Subordination Agreement dated July 6, 2001, among Joseph V. Capuano, the Company and the Bank, and therefore that the Company is no longer entitled to and shall not make, and Joseph V. Capuano is no longer entitled to and shall not receive, payments of the Subordinated Debt as defined and otherwise provided in such Subordination Agreement. WITNESS: By: vvJJ 7 By: / By: By: NANCY P. CAPUANO 16 EXIllBIT "A" TO FORBEARANCE AGREEMENT DATED SEPTEMBER 25, 2003 The "Loan Documents" that are the subject of this Agreement include, but are not limited to, the following (as any of them have previously been amended, modified or otherwise supplemented or restated): Loan to Landis, Inc., in the original principal amount of $88,000, made as of May 3,1999; Obligor/Obligation Number 30944824-601138578 (the "$88,000 Loan") Corporate Resolution to Borrow Promissory Note Disclosure for Confession of Judgment Business Loan Agreement Security Agreement (Motor Vehicles) Commercial Security Agreement Commercial Guaranty of Steven 1. Capuano Disclosure for Confession of Judgment for Steven 1. Capuano Loan to Landis, Inc., in the original principal amount of $306,500, made as of November 26, 1997; Obligor/Obligation Number 30944824-600719907 (the "$306,500 Loan") Corporate Resolution to Borrow Promissory Note Disclosure for Confession of Judgment Business Loan Agreement Commercial Security Agreement Power of Attorney Commercial Guaranty of Steven 1. Capuano and Kimberly 1. Capuano Disclosure for Confession of Judgment for Steven 1. Capuano and Kimberly 1. Capuano Subordination Agreement of Joseph V. Capuano Loan to Landis, Inc., in the original principal amount of $120,000, made as of April 26, 1999; Obligor/Obligation Number 3094824-601147466 (the "$120,000 Loan") Corporate Resolution to Borrow Promissory Note Disclosure for Confession of Judgment Business Loan Agreement Commercial Guaranty of Steven 1. Capuano Disclosure for Confession of Judgment for Steven J. Capuano Open-End Mortgage from Joseph V. Capuano and Nancy P. Capuano (Tax parcel no. 40-31-2187-052, Woodcraft Drive, Mt. Holly Springs) 17 Line of Credit to Landis, Inc., in the modified original principal amount of 5580,000, made as of May 25,1999; Obligor/Obligation Number 30944824-601138518 (the "Line of Credit") Promissory Note in the original principal amount of$I25,000 Business Loan Agreement Commercial Security Agreement Commercial Guaranty of Steven 1. Capuano Disclosure for Confession of Judgment Amendment to Loan Documents dated July 6, 200 I, increasing line of credit amount to $500,000 Subordination Agreement from Joseph C. Capuano dated July 6, 200 1 Second Amendment to Loan Documents dated April 30, 2002, increasing line of credit amount to $580,000 Loan to Steven J. Capuano and Kimberly L. Capuano in the original principal amount of 5120,000 made as of September 14, 2000; Obligor/Obligation Number 30944834-601549745 (the "Capuano Loan") Promissory Note Disclosures for Confession of Judgment Corporate Resolution to Guarantee Commercial Guaranty of Landis, Inc. Open-End Mortgage (Tax parcel nos. 401-31-2187-053 and 40-3 1-2 I 87-053A, Woodcraft Drive, Mt. Holly Springs) 18 COMMONWEALTH OF PENNSYLVANIA COUNTY OIl ill nL ~'ll LrtJ : SS On the 25"' day of September, 2003, before me personally came STEVEN J. CAPUANO, who being duly swom, did acknowledge himself to be the President of LANDIS, INC., and that he as such officer, being authorized to do so, executed the foregoing instrument on behalf of said corporation for the purposes therein contained. In testimony whereof, I have hereunto subscribed my name. IN WITNESS WHEREOF, I hereunto set COMMONWE?, TH OF P~NNSYL V ANjA COUNTY OFLLl nd~tldJ(j,- : SS SEAL) NOTAIUL lEAL WSIDY S. C"E IE ._."*' NIIo lDwIr AII8n r.p.. ClIlobn.4 Calnw My CommieIbi Exp/r8a Mey 10. 2W My commission expires: My Commission Expires: On the 25"' day of September, 2003, before me personally came STEVEN J. CAPUANO and KIMBERLY L. CAPUANO, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and ~cknowledged that they executed the same for ~Jlli'PO=>h=m'M'- 1)j IGL i OWJJ,?~) 4 R' M". ~_ WEJIl1(S,ClES ~NIc la.MIn~~ ~ : My~....'", .'0, COMMOY OF PENNSYLVANIA COUNTY 0 LUrd t:L ftL'LL On the 25"' day of September, 2003, before me personally came JOSEPH V. CAPUANO llIlElI)/.l\.~IT P. CAfB>\.:NO, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. '\ : SS li , otary Public NCJWll'\L IEM. WEJlJVs.~ 1 IO,=NIc a-MIn'ftlp..Q..UI Ccuar My eo.....IwIwII EI;1hI 11II110. 'JJJf1 ..oat. My Commission Expires: 19 MODIFICATION AND AMENDMENT OF FORBEARANCE AGREEMENT THIS AGREEMENT is made as of May 4, 2004, by and among PNC BANK, NATIONAL ASSOCIATION ("Bank"), and LANDIS, INC. (the "Company"), and STEVEN J. CAPUANO and KIMBERLY L. CAPUANO (jointly and severally, the "Capuanos"), with the acknowledgment and consent of JOSEPH V. CAPUANO. RECITALS R-l. The Company and the Capuanos are referred to in this Agreement jointly and severally as the "Obligors". The Obligors executed and delivered to the Bank a Forbearance Agreement dated September 25,2003 (the "Forbearance Agreement"). R-2. The term of the Forbearance Agreement expired, and the indebtedness owed by the Obligors to the Bank as provided in the Forbearance Agreement was due and payable in full, on April I, 2004. R-3. The Obligors have requested the Bank to extend the term of the Forbearance Agreement, to which the Bank has agreed subject to the terms and conditions of this Agreement. AGREEMENT NOW THEREFORE, in consideration of the Recitals, which are an integral part of this Agreement, and of the agreements hereinafter set forth, and intending to be legally bound, the Obligors and the Bank agree as follows: I. The Obligors' indebtedness and obligations to the Bank (collectively the "Obligations") shall be paid in accordance with the agreements and docu,ments that evidence and secure the Obligations (collectively, the "Loan Documents"), and with the Forbearance Agreement, and with the following provisions: a The principal amount outstanding under the Line of Credit (as defined in Exhibit "A") as of the date hereof is $577,908.34. The availability of advances under the Line of Credit has been, and is hereby, terminated, and the Company shall not be entitled to receive, and the Bank shall not be obligated to make, any additional advances under the Line of Credit. The interest rate payable on the principal amount outstanding at any time under the Line of Credit shall be a rate of interest per annum at all times equal to eleven and one- tenths percent (11.10%) over the Index (as defmed in the Promissory Note for the Line of Credit). The Company shall make monthly payments of principal and interest on the Line of Credit in the amount of $7,652.57, which have been calculated according to a 20-year I L i-h, b.l ''/JI/ amortization schedule, on the date of each month as provided in the Promissory Note for the Line of Credit. Upon the occurrence of any default under this Agreement, at the Bank's option, without notice to the Obligors, the interest rate payable on the Line of Credit may be increased to a rate of interest per annum at all times equal to sixteen percent (16%) over the Index (as defined in the Promissory Note for the Line of Credit). b. The principal amount outstanding under the $120,000 Loan (as defined in Exhibit "A") as of the date hereof is $107,045.99. The interest rate payable on the principal amount of the $120,000 Loan outstanding at any time shall be eighteen and one-tenths percent (18.10%) per annum. The Company shall make monthly payments of principal and interest on the $120,000 Loan in the amount of $1,660.30, which have been calculated according to a 20-year amortization schedule, on the date of each month as provided in the Promissory Note for the $120,000 Loan. Upon the occurrence of any default under this Agreement at the Bank's option, without notice to the Obligors, the interest rate payable on the $120.000 Loan may be increased to twenty percent (20%) per annum. c. The principal amount outstanding under the $88,000 Loan (as defined in Exhibit "A") as of the date hereof is $3,922.43. The interest rate payable on the principal amount of the $88,000 Loan outstanding at any time shall be eighteen and one-tenths percent (18.10%) per annum. The Company shall make monthly payments of principal and interest on the $88,000 Loan in the amount of $1, i85 AI on the date of each month as provided in the Promissory Note for the $88,000 Loan. Upon the occurrence of any default under this Agreement at the Bank's option, without notice to the Obligors, the interest rate payable on the $88,000 Loan may be increased 10 twenty percent (20%) per annum. d. The principal amount outstanding under the Capuano Loan (as defined in Exhibit "A") as of the date hereof is $112,755.66. The interest rate payable on the principal amount of the Capuano Loan outstanding at any time shall be nineteen and one-tenths percent (! 9.10%) per annum. The Capuanos shall make monthly payments of principal and interest on the Capuano Loan in the amount of $1,836.19, which have been calculated according to a 20-year amortization schedule, on the date of each month as provided in the Promissory Note for the Capuano Loan. Upon the occurrence of any default under this Agreement at the Bank's option, \>;ithout notice to the Obligors, the interest rate payable on the Capuano Loan may be increased to twenty percent (20%) per annum. e. On June 3, 2004, the entire outstanding amount of the $88,000 Loan, and on August I, 2004, the entire outstanding amount of the other Obligations, including all of the principal, all of the accrued and unpaid interest, all of the prepayment charges that are payable under the Promissory Notes for the $88,000 Loan, the $120,000 Loan and the Capuano Loan as a result of prepayment of the principal amount outstanding thereunder prior to the maturity dates of such Loans as provided in such Promissory Notes, and any and all other sums due or payable under or in connection with the Obligations and/or the Loan Documents, shall be due and payable in full, without notice or demand, or setoff, counterclaim or deduction of any nature. 2 2. Simultaneously with execution of this Agreement, the Obligors shall (a) pay to Bank a non-refundable forbearance fee of$I,907.00, which the Obligors acknowledge and agree has been fully earned by Bank, and (b) payor reimburse Bank for the fees and costs of the Bank's attorneys incurred or paid by Bank as a result of the Obligors' defaults of their obligations to Bank, including without limitation for the preparation, negotiation and implementation of this Agreement. 3. Simultaneously with execution of this Agreement, as additional collateral and security for the Obligations (which shall also be included in the definition of "Collateral" as provided in the Forbearance Agreement), the Obligors shall deliver to the Bank all titles to all of the Company's equipment and vehicles that are not encumbered by other creditors, and such completed and signed documentation as may be necessary or incidental for the Bank's encumbrance to be noted on all such vehicle titles. 4. Simultaneously with execution of this Agreement as additional collateral and security for the Obligations (which shall also be included in the definition of "Collateral" as provided in the Forbearance Agreement), the Capuanos shall execute and deliver to the Bank, in recordable form, the Bank's form of Mortgage Modification Agreement to be recorded for the purpose of extending the Bank's mortgage lien currently in effect against the real property occupied by the Company and identified as tax parcel nos. 40-31-2187-053 and 40-31-2187-053A, Woodcraft Drive, Ml. Holly Springs, to include tax parcel no. 40-3]-2187-052, Woodcraft Drive, Mt. Holly Springs. 5. Bank agrees, without waiving any existing default of the Obligors or any declaration of any existing default of the Obligors, or any demand for payment of all or any part of the Obligors' indebtedness to Bank, or any acceleration of the Obligors' indebtedness to Bank, or any of Bank's rights or remedies against the Obligors or the Collateral (such term as used in this Agreement having the same definition as such term has in the Forbearance Agreement) or the Obligors' respective other property, to forbear from proceeding against the Obligors and the Collateral and the Obligors' respective other property until the occurrence of a default of any of the Obligors' obligations to Bank under this Agreement, on or after the date of this Agreement. However, notwithstanding the preceding sentence, the Company's failure to comply ~th the annual clean-up provision for the Line of Credit and with the Tangible Net Worth covenant and the Debt Service Coverage Ratio covenant contained in any of the Loan Documents shall not constitute default under this Agreement. 6. The Obligors shall furnish or cause to be furnished to the Bank: a. Not later than forty-five (45) days after the end of each of the Company's fiscal quarters, financial statements for each such quarter, including detailed schedules of accounts receivable aging and accounts payable aging, all in form and content satisfactory to the Bank. 3 . b. Not later than thirty (30) days after the end of each month, financial statements for each such month, including detailed schedules of accounts receivable aging, all in form and content satisfactory to the Bank. c. Not later than April 30, 2004, a copy of the Capuanos' signed federal income tax return, as filed, including all schedules, statements, forms and attachments. d. In addition, the Obligors will furnish or cause to be furnished to the Bank such information and statements, lists of assets and liabilities, inventory schedules, budgets, forecasts, tax returns, and other reports with respect to the Company and the Company's business operations, and with respect to the Capuanos' fmancial condition, as Bank may request from time to time. 7. a. The Obligors hereby reaffirm, affirm, ratify and confirm the Obligors' absolute and unconditional liability to make all payments and to observe and perform all of the duties, obligations and other agreements of the Obligors under or in cormection with the Obligations, the Loan Documents and the Forbearance Agreement, subject only to any express modification contained in this Agreement. Except as expressly set forth herein, nothing contained in this Agreement releases, limits, or otherwise affects in any way or at any time the liability of any of the Obligors for or 'With respect to any of the Obligors' obligations and agreements under or in cormection 'With the Obligations, the Loan Docli.'!lents or the Forbearance Agreement. This Agreement does not evidence or represent in any way new indebtedness or satisfaction of any of the Obligations. All provisions of the Loan Documents and the Forbearance Agreement remain in full force and effect, enforceable by the Bank in accordance with the provisions of each of them, except as expressly modified hereby, including without limitation any provisions for confession of judgment, waiver of the right to trial by jury or venue or forum selection contained in any of the Loan Documents or the Forbearance Agreement. Nothing contained in this Agreement waives or should be construed as a waiver of any of the Bank's rights and remedies under the Loan Documents or the Forbearance Agreement. or at law or in equity. b. The Obligors hereby acknowledge, agree and affirm that (i) the Obligors are absolutely and unconditionally liable to the Bank under any guaranty agreement executed in favor of the Bank by any of the Obligors (each, a "Guaranty"), which Guaranty is a guarantee of payment, and not merely collectibility, of the Obligations under the Loan Documents and the Forbearance Agreement, (ii) the Obligors' liability to the Bank under any such Guaranty and with respect to the Obligations, the Loan Documents, the Forbearance Agreement and this Agreement is primary and direct, and (iii) the Obligors have no defenses, setoffs or other claims with respect 10 the Obligations, the Loan Documents, the Forbearance Agreement or this Agreement, or any such Guaranty. c. All of the provisions of the Loan Documents and the Forbearance Agreement, as modified hereby, are incorporated herein by reference and made a part hereof as if set forth in full herein, and all of the provisions of this Agreement are incorporated into 4 the Loan Documents and the Forbearance Agreement and made a part thereof as if set forth in full therein. The provisions of this Agreement are and will be deemed to be supplemental to, and not in derogation of, the provisions of the Loan Documents and the Forbearance Agreement, whenever possible. However, if there is any conflict or inconsistency between or among the provisions of the Loan Documents and/or the Forbearance Agreement, and this Agreement, the provision(s) determined by Bank in its sole discretion to be applicable will govern and control the resolution of any such conflict or inconsistency, and the Obligors agree to be bound by Bank's determination. 8. The occurrence of anyone or more of the fOllowing IS a default under this Agreement: a The Obligors' failure to make any payment required under the provisions of any of the Loan Documents, the Forbearance Agreement or this Agreement on or before the due date. on or after the date of this Agreement; b. The Obligors' failure to observe or perform each and every one of the provisions on the Obligors' part to be observed or performed under this Agreement, or under any of the Loan Documents (except with respect to compliance with the financial covenants as provided in Section 8 and with respect to the annual clean-up provision for the Line of Credit), or the Forbearance Agreement on or after the date of this Agreement; c. If any representation, warranty, or financial statement or presentation of any of the Obligors at any time made to Bank in connection with the Obligations is determined by Bank to be materially incorrect or misleading, including without limitation any financial statements provided by any of the Obligors to Bank in accordance with the Loan Documents, the Forbearance Agreement or this Agreement. 9. The Obligors each agrees that a default under any of the Loan Documents, the Forbearance Agreement, this Agreement, or under any other agreement or document evidencing or securing any other indebtedness or obligation of any of the Obligors to Bank, on or after the date of this Agreement, is a default under all of the Loan Documents, the Forb~arance Agreement, this Agreement and all such other agreements and documents. The Obligors each agrees thai all of the Collateral is intended to be and is collateral and security for the entire amount of the Obligations, whether or not any particular Collateral is specifically identified as Collateral for any particular Obligations in the Loan Documents or the Forbearance Agreement, and that all of the Collateral is intended to and '-"ill continue as collateral and security for the entire amount of the Obligations until all of the Obligations are paid in full, notwithstanding payment in full of the $88,000 Loan, the $306,500 Loan, the $120,000 Loan, the Line of Credit and/or the Capuano Loan before payment in full of all of the Obligations, and the Obligors hereby confirm and reaffirm the Bank's security interest, and hereby grant to the Bank a security interest, in and to all of the Collateral. The Obligors agree that all of the provisions of all of the Loan Documents and the Forbearance Agreement, as modified by this Agreement, will remain in full and force and effect and be and =am applicable to all of the outstanding Obligations until all of the Obligations are paid in full, 5 notwithstanding payment in full of the $88,000 Loan, the $306,500 Loan, the $120,000 Loan, the Line of Credit and/or the Capuano Loan before payment in full of all of the Obligations. 10. The Obligors, for themselves and any person or entity claiming by, through, from or under any of them, including without limitation their respective heirs, personal representatives, predecessors, successors and assigns, and their respective parent corporations, subsidiaries and affiliates, and the stockholders, directors, officers, employees, agents and attorneys of any of them, hereby release and agree to indemnify, defend and hold hannless Bank, its predecessors, successors and assigns, and its and their respective parent corporations, subsidiaries and affiliates, and the stockholders, directors, officers, employees, agents and attorneys of any of them (collectively, the "Indemnified Parties") harmless for, against and from any and a111iability of any nature whatsoever, including without limitation any demands, claims, suits, proceedings or actions of any nature whatsoever, and any damages, losses, costs, expenses and fees (including anorneys' fees) or other liabilities of any nature whatsoever, arising at any time before, on or after the date of this Agreement as a result of or in connection with any actions or inactions of any of the Indemnified Parties, whether intentional or negligent, which occurred on or prior to the date of this Agreement. This provision will survive any expiration or termination of this Agreement, whether by payment in full of the Obligations and all other sums due under or in connection therewith, or otherwise. 11. The Obligors will execute and/or deliver to Bank such additional documents, agreements or materials, or will take such further action, as Bank may reasonably request at any time and from time to time to give effect to the purposes or provisions of this Agreement. 12. All documents, agreements and materials of any nature whatsoever required at any time to be executed or delivered to Bank in connection with any of the obligations of the Obligors to Bank under this Agreement will be in form and substance satisfactory to Bank in Bank's sole discretion. 13. No modification of any provision of this Agreement shall be effective unless in writing and signed by all of the parties. 14. If at any time or times Bank believes it to be necessary or desirable to refer any aspect of the administration of this Agreement, or the enforcement of any provision of this Agreement, to any anorney, the Obligors will be liable to payor reimburse Bank for all reasonable anorneys' fees and costs incurred or paid by Bank as a result of such referral, which fees and costs will be due when incurred and payable immediately upon demand therefor. 15. Time is of the essence of the Obligors' obligations under this Agreement. 16. The provisions of this Agreement are severable and the invalidity or unenforceability of any provision will not affect or impair the remaining provisions, which shall remain in full force and effect. 6 .. . 17. This Agreement shall be interpreted and construed under the laws of the Commonwealth of Pennsylvania. The Obligors shall only bring an action in, and the Obligors otherwise consent to the jurisdiction of, the Court of Common Pleas of Cumberland County, Pennsylvania, and the United States District Court for the Middle District of Pennsylvania, over all matters arising from or related to the Loan Documents, the Forbearance Agreement and/or this Agreement. The Obligors and the Bank agree that any dispute or controversy between or among the Obligors or any of them and Bank would not lend itself to resolution or determination in trial by jury. Therefore, the Obligors and Bank each hereby voluntarily, knowingly and understandingly waives the right to trial by jury in any action or proceeding with respect to any dispute or controversy which may arise between or among them under or in connection with the Obligations, the Loan Documents, the Forbearance Agreement or this Agreement and the subject matter of this Agreement. 18. This Agreement shall inure to the benefit of Bank, its successors and assigns, and all obligations of the Company and the Capuanos shall bind all of the Obligors and their respective heirs, personal representatives, successors and assigns. 19. The Obligors each acknowledges and agrees that each of the Obligors has had the opportunity to consult with an attorney or attorneys prior to execution of this Agreement, and the Obligors have consulted with an attorney or attorneys, or have waived and hereby acknowledge the waiver of the opportunity to do so, and the Obligors have executed this Agreement voluntarily, knowingly and understandingly. 20. This Agreement may be executed in any number of counterparts, which will constitute one and the same Agreement. The Obligors each agrees that Bank is entitled to rely on a facsimile transmission of this Agreement containing the signatures of any of the Obligors and executed notary acknowledgements for the Obligors. However, the Obligors further agree to send the Bank the originally signed and notarized Agreement by nationally recognized ovemight courier service on the date on which the facsimile transmission is sent to Bank. IN WITNESS date first written a REOF, the Obligors and Bank have execut 7 By: By: .'-. B,r-k!t ~~, ~ .J KlMBERLYL. CAP ANO PNC BANK, NATIONAL ASSOCIATION By: rd:J ~' Q ERIC D. KRIMMEL VICE PRESIDENT 8 " . ACKNOWLEDGMENT AND CONSENT The undersigned, JOSEPH V. CAPUANO hereby consents to the execution of this Agreement by LANDIS, INC., and STEVEN J. CAPUANO and KIMBERLY L. CAPUANO, and acknowledges and agrees to the terms and conditions of this Agreement, and the undersigned hereby reaffirms, ratifies, confirms and agrees that all of the provisions of any of the Loan Documents to which the undersigned is a party are unchanged and in full force and effect, enforceable by the Bank as provided therein, or at law or in equity. Without limiting the general nature and effect of the preceding paragraph, the undersigned specifically acknowledges that this Agreement and this Acknowledgment and Consent constitute wrinen notice from the Bank of the occurrence of an Event of Default under the Loan Documents as provided in Section 3 of the Subordination Agreement dated July 6, 2001, among Joseph V. Capuano, the Company and the Bank, and therefore that the C"mpany is no longer entitled to and shall not make, and Joseph V. Capuano is no longer entitled to and shall not receive, payments of the Subordinated Debt as defined and otherwise provided in such Subordination Agreement. By: DA IE: May 4, 2004 9 EXHIBIT" A" TO MODIFICA nON AND AMENDMENT OF FORBEARANCE AGREEMENT DATED MAY 4, 2004 The "Loan Documents" that are the subject of this Agreement include, but are not limited to, the following (as any of them have previously been amended, modified or otherwise supplemented or restated): Loan to Landis, Inc., in the original principal amount of $88,000, made as of May 3, 1999; Obligor/Obligation Number 30944824-601138578 (the "$88,000 Loan") Corporate Resolution to Borrow Promissory Note Disclosure for Confession of Judgment Business Loan Agreement Security Agreement (Motor Vehicles) Commercial Security Agreement Commercial Guaranty of Steven J. Capuano Disclosure for Confession of Judgment for Steven J. Capuano Loan to Landis, Inc., in the original principal amount of $120,000, made as of April 26, 1999; Obligor/Obligation Number 3094824-601147466 (the "$120,000 Loan") Corporate Resolution to Borrow Promissory Note Disclosure for Confession of Judgment Business Loan Agreement Commercial Guaranty of Steven J. Capuano Disclosure for Confession of Judgment for Steven J. Capuano Open-End Mortgage from Joseph V. Capuano and Nancy P. CapuaBO (Tax parcel no. 40-31-2187-052, Woodcraft Drive, Mt. Holly Springs) Line of Credit to Landis, Inc., in the modified original principal amount of $580,000, made as of May 25,1999; Obligor/Obligation Number 30944824-601138518 (the "Line of Credit") Promissory Note in the original principal amount of$125,000 Business Loan Agreement Commercial Security Agreement Commercial Guaranty of Steven J. Capuano Disclosure for Confession of Judgment 10 , . . ,_.a.... Amendment to Loan Documents dated July 6, 2001, increasing line of credit amount to $500,000 . Subordination Agreement from Joseph C. Capuano dated July 6, 200 I Second Amendment to Loan Documents dated April 30, 2002, increasing line of credit amount to $580,000 Loan to Steven J. Capuano and Kimberly L. Capuano in the original principal amount of $120,000 made as of September 14, 2000; Obligor/Obligation Number 30944834-601549745 (the "Capuano Loan") Promissory Note Disclosures for Confession of Judgment Corporate Resolution to Guarantee Commercial Guaranty of Landis, Inc. Open-End Mortgage (Tax parcel nos. 401-31-2187-05J and 40-3 1-2 I 87-053A, Woodcraft Drive, Mt. Holly Springs) 11 PNC BANK, NATIONAL ASSOCIATION ., , 4242 Carlisle Pike CampHiIl,PA 17011 E-mail: eric.krimmeluv.oncbank.com Eric D. Krimmel Vice President (717)730-2492 Tel (717) 730-2373 Fax $ PNCBAN< Via Rel!Ular and Certified Mail August 9, 2004 Steven J. Capuano, President Landis, Inc. Woodcraft Drive P.O. Box 196 Mt. Holly Springs, P A 17065 Mr. Steven J. Capuano Mrs. Kimberly L. Capuano 1229 Blossom Terrace Boiling Springs, P A 17007 In re: Landis, Inc. Obligor/Obligation Nos.: 30944824-601138518 (5580,000 Line of Credit Loan) 30944824-601147466 (5120,000 Loan) Steven J. and Kimberly L. Capuano Obligor/Obligation Nos.: 30944834-601549745 (5120,000 Loan) Dear Landis, Inc.: Dear Mr. and Mrs. Capuano: As you know, you are obligated to PNC Bank, National Association ("PNC") for the above-referenced loan accounts (the "Loans"), as evidenced by certain Promissory Notes, Commercial Guaranties, a Forbearance Agreement, and other related loan documents (the "Loan Documents"). As you also know, you are in default under the Loans and Loan Documents for your failure to payoff the above- referenced loan accounts on August 1, 2004. As a result of this Event of Default, all liabilities and obligations under the Loans and Loan Documents have been accelerated and all liabilities and obligations under the Loans and Loan Documents are immediately due and payable to PNC. In addition, pursuant to the terms of the Loan Documents you are hereby notified, that effective this date, PNC has exercised its right to increase the interest rates on th,e Loans to the default rates as follows: Landis. Inc. 30944824-601138518 30944824-601147466 Existin~ Interest Rate Default Rate PNC Bank's prime rate + 11.10 18.10% PNC Bank's prime rate + 16.00% 20.00% Steven J. and Kimberlv L. CaDuano 30944834-601549745 19.10% 20.00% A member of The PNC Financial Services Group 4242 Carlisle Pike Camp Hill Pennsylvania 17011 ( ~t-h(b;J ('Lit ., 'Steven J. Capuano, President Landis, Inc. August 9, 2004 Page 2 Please be advised that unless payment in full is immediately delivered to PNC Bank, National Association at 4242 Carlisle Pike, Camp Hill, PA 17011, in the form ofa cashiers check or money order, PNC may take all action it deems appropriate to collect the above sums due and owing, preserve, protect and enforce its rights under the Loans and Loan Documents. This letter shall not be deemed to constitute a waiver of any outstanding defaults or Events of Default, nor shall it obligate PNC, or be construed to require PNC, to waive any defaults, whether now existing or which may occur after the date of this letter, nor shaII it limit PNC's rights to exercise all of its rights and remedies under the Loan Documents with you, including any notes, security agreements or other loan documents executed in connection therewith, all of which rights PNC expressly reserves. v cry truly yours, PNC Bank, National Association ~Q~ Eric D. Krimmel Vice President Cenified Mail Nos.: 7002 0460 0000 9754 8954 7002 0460 0000 9754 8961 cc: Geoffrey S. Shuff; Esquire ;/ . . . DISCLOSUk... FOR CONFESSION OF JUlJ~MENT .~ /00 C~ Borrower: LANDIS, INC. (TIN: 23-2443798) WOODCRAFT DRIVE MOUNT HOlLY SPRINGS, PA 17065 Guarantor: STEVEN J. CAPUANO 1229 BlOSSOM TERRACE BOILING SPRINGS, PA 17007 mtlii~t;; lfui~A~,;,;il;:~II&;i:!li;;~ifi;; References in Ihe shaded erea are for Lender's use onl Lender: PNC BANK, NATIONAl ASSOCIATION 4242 CARLISLE PIKE CAMP HIll., PA 17001-8874 DISCLOSURE FOR CONFESSION OF JUDGMENT I AM EXECUTING, THIS :u; DAY OF ~.( , 19 77 ,A GUARANTY FOR AN UNLIMTEO AMOUNT. A. I UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOlA.D PERMIT LENDER TO ENTER JUDGMENT AGAINST ME IN COURT, AFTER A DEFAlA.T ON THE GUARANTY,WITH()UT ADVANCE NOTICE TO ME AND WITHOUT OFFERING ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. 'IN EXECUTING THE GUARANTY, BEING FU.lY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VAliDITY OF ANY JUOGMENT OR OTHER ClAIMS THAT LENDER MAY ASSERT AGAINST ME UNDER THE GUARANTY, I AM KNOWINGLY, INTB..l.IGENTLY, ANO VOlUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND ,I EXP!'!ESSLY AGREE AND CONSENT TO LENDER'S ENTERING JUDGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. .':-:..( B. I FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY AlSO CONTAINS LANGUAGE THAT WOlA.D PERMIT LENDER, AFTER ENTRY OF JUDGMENT, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FLU. OR PARTiAl PAYMENT OF THE JUDGMENT. HOWEVER, LENDER MUST PROVIDE NOTICE TO ME UNDER APPLICABlE LAW IN EXECUTING ANY CONFESSED JUDGMENT. IN EXECUTING THE GUARANTY, BEING FU.lY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT. I AM KNOWINGLY, INTB..l.IGENTLY AND VOlUNTARILY WAIVING THESE RIGHTS, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S EXECUTING ON THE JUDGMENT, IN ANY MANNER PERMITTED BY APPLICABlE STATE AND FEDERAl LAW. C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOll.OWING STATEMENTS ARE APPLICABlE, AND BY PLACING MY INITiAlS NEXT TO EACH STATEMENT WHICH APPLIES, I REPRESENT THAT: INITiAlS 1. I WAS REPRESENTED BY MY OWN INDEPENDENT LEGAl COUNSa IN CONNECTION WITH THE GUARANTY. -4f)... 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION' OF JUDGMENT PROVISION IN THE - \ GUARANTY TO MY ATTENTION. '. , D. I CERTIFY THAT MY ANNUAl INCOME EXCEEDS $10,000: THAT THE BLANKS IN THIS DISCLOSURE WERE FIll.ED IN WHEN I INITIALED AND SIGNED IT: AND THAT I RECEIVED A COpy AT THE TIME OF ,SIGNING" B N SIGNED AND SEALED BY THE UNDERSIGNED. x (SEAl) .5. Pat. I T.M. Off., Ver. 3.26b (el 1998 CFI Pl"oServiCes, Inc. AU rIghts resel"\led. rPA-030 F3.2e LANDI$3.LN C29.0Vl.[ L'f--h. bit (IF'' PNC BANK, NATIONAL ASSOCIATION, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. STEVEN J. CAPUANO, Defendant : CONFESSION OF JUDGMENT : CIVIL ACTION - LAW VERIFICATION I, Eric Krimmel, Vice President, for PNC Bank, National Association, being authorized to do so on behalf of PNC Bank, National Association, hereby verify that the statements made in the foregoing pleading are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. PNC BANK, NATIONAL ASSOCIATION Date: 12{2.1../0'i By: ~Z- - Q , Eric Krimmel Vice President . . . ...., 0 ~ n = ~ ~~.,. c;) ~~g t /CJ c.n l[ ...0 ...,,~. '- #:. -;-)j-- :J>- rn- 'T::l ;z: -'oM ~ ~ --'- --r I -'""10 ~ 0 ..,.. (~,? ....... - :1:-H ~ ~ --U ~ 90 -' ()i.l ~ ).J --, pt: "J> *- V) CJ :.0 -:) .< --, OJ r' ~ PNC BANK, NATIONAL ASSOCIATION, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. OS' - S 1 CL;C-T~ STEVEN 1. CAPUANO, Defendant : CONFESSION OF JUDGMENT : CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance on behalf of Plaintiff, PNC Bank, National Association. Papers may be served at the address set forth below. Geoffrey S. Shuff, Esquire SAIDIS, SHUFF, FLOWER & LINDSAY 2109 Market Street, Camp Hill, P A 17011 (717) 737-3405 (fax) 737-3407 Respectfully submitted, Date: 1),/ D..~ /() Y , SAIDIS, SHUFF, FLOj & LINDSAY B f , y: /~' ;' j/feof /. Sluiff, Esquire ~-e~e Court ID #24848 2109 Market Street Camp Hill, P A 17011 (717) 737-3405 Attorney for Plaintiff n f; --- ("'J ~~~. ..,.'.:.... =;j '" = = Con <- 5;: o ., -l I" rn,;;..~ ""1'jfTl ~:..,o nL :~;Si ;~] f5 ;:~'i (1'1 "'::, :'::0 --<: J;.- ~ - a CD PNC BANK, NATIONAL ASSOCIATION, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. O~ - .5'( c.,~~L ~~ STEVEN J. CAPUANO, Defendant : CONFESSION OF JUDGMENT : CIVIL ACTION - LAW AFFIDAVIT OF NON-MILITARY SERVICE TO THE PROTHONOTARY: I do certifY, to the best of my knowledge, that the Defendant, Steven J. Capuano, in the above-captioned action is not presently on active or nonactive military status. Respectfully submitted, SAID IS, SHUFF, FLOWER & LINDSAY Date: 12 -18 - uy BY~ Geo e . . uf , Esquire Supreme Court #24848 2109 Market Street Camp Hill, PA 17011 (717) 737-3405 Attorney for Plaintiff () '" 0 C:-J C = -n ::c-'~ <On I~.':~ <- Ii , :z,.. rn ;!! :z I ;grl1 .- 06 - --_..j( ~ ~t~~ ::r: ( , <. '-.) >:: ::;~ =2 Cl :-lJ CD .< PNC BANK, NA TIONAL ASSOCIATION, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. O~ - ~ I Ciu;l ,~ STEVEN J. CAPUANO, Defendant : CONFESSION OF JUDGMENT : CIVIL ACTION - LAW CERTIFICATE OF ADDRESSES I hereby certifY that the precise address of Plaintiff, PNC Bank, National Association, is 4242 Carlisle Pike, Camp Hill, Pennsylvania 17011; and that the last known address of the Defendant, Steven 1. Capuano, is 1229 Blossom Terrace, Boiling Springs, Pennsylvania 17007. Respectfully submitted, SAlOIS, SHUFF, FLOWER & LINDSAY Date: n-1J5 _vy By: Geo rey ff, Suprertie Court #24848 2109 Market Street Camp Hill, P A 17011 (717) 737-3405 Attorney for Plaintiff (") 5:,~ ::,,,, ,-..- '" c::::) = <On <- ";J> -'...,..' - o -n .-1 ;:r:ll:D . /_. ;39 ~:~~ ~r: -n ~:;~(~ esrn '.--1 C> :"~ -< I .t:"" ~ .....:;;.. a CXl v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. O~ - Sf Cl~Jc.,-8L~ CONFESSION OF JUDGMENT CIVIL ACTION - LAW PNC BANK, NATIONAL ASSOCIATION, Plaintiff STEVEN 1. CAPUANO, Defendant NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION REQUIRED BY 42 Pa. C.S.A. S 2737.1 (Act 105 of2000) To: Steven J. Capuano Pursuant to 42 Pa. C.S. S 2737.1. please take notice that the Plaintiff in this matter has entered a judgment by confession against you in the amount of $118,731.81. You are entitled to file a petition to "strike" or "open" the judgment. In order to do so, you must promptly file a petition with the Court of Common Pleas of Cumberland County, Pennsylvania, as required by Rule 2959 of the Pennsylvania Rules of Civil Procedure. You will file a petition by leaving it with the courts or Prothonotary at the courthouse in Carlisle, Cumberland County, Pennsylvania. A petition is a formal statement of your reasons for challenging the judgment. You must include the names of the parties at the top of the first page and the case number, which is shown above. The petition must state your reasons for challenging the judgment is a separate numbered paragraphs. You have to sign the petition and include a sworn statement at the end of the document verifying that the facts you state in the petition are true and accurate. You will waive any defenses and objections not included in your petition to strike or open. You must therefore make every effort to raise all possible issues and defenses in your petition to strike or open in order to avoid waiving any claims. If you elect to file a petition, it must meet the requirements of Rule 2959 of the Rules of Civil Procedure. A full copy of Rule 2959 is attached to this Notice. You may also have to comply with local rules of procedure in effect in the county where the judgment was entered. If you do not file a petition challenging the judgment, the Plaintiff may take steps to collect on the judgment by asking the Sheriff to seize your assets. You may have other rights available to you other than as set forth in this notice. You should take this paper to your lawyer at once. If you do not have a lawyer, go to or telephone the office set forth below. This office can provide you with information about hiring a lawyer. If you cannot afford to hire a lawyer, this office may be able to provide you with information about agencies that may offer legal services to eligible persons at a reduced fee or no fee. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 Corporations may be unable to represent themselves in court. Ifthe defendants include a corporation, the corporation must appear through an attorney if it intends to challenge the judgment. You may receive other papers and notices regarding the judgment. Those other papers do not negate or override this Notice. Likewise, this Notice is not intended to and does not negate any of the notices or information obtained in other papers that may be served upon you. We reiterate that you are required to act promptly if you wish to seek relief from the judgment. Under certain circumstances, you have only 30 days in which to file a petition after papers are served on you. Even if the 30 day rule does not apply, you must act promptly in order to protect your interests. Failing to act in a timely manner will render you unable to challenge the judgment at a later time. Pursuant to 40 Pa. C.S.A. Section 2737.1, if you have been incorrectly identified and had a confession or judgment entered against you, you are entitled to costs and reasonable attorney fees as determined by the court. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY Date: December 28, 2004 By: / L . Shuff, Esquire me Court ID #24848 2109 Market Street Camp Hill, PA 17011 (717) 737-3405 Attorney for Plaintiff Pennsvlvania Rule of Civil Procedure 2959 - Strikinl!: off Judl!:ment (a)(l) 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 rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Pennsylvania Rule of Civil Procedure 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.l(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 retum 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 in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. ,..... ~ 0 ,--, '-::::> 0 c.; j-'::;;:'> ~1 -1-1 '-'-- .-1 ~, :.T:-n ~ [11p';: I -nl~n J:" ':)9 ~;_?, C) ~'" q_J-'f, - -'~. ;.-._;: ::1.1 C." :.~;. C> C LSrn - ..~: .....\ ..:< 0 ~:O CO --< v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05- S[ C.~u'LY~ PNC BANK, NATIONAL ASSOCIATION, Plaintiff STEVEN J. CAPUANO, Defendant : CONFESSION OF JUDGMENT : CIVIL ACTION - LAW To: Steven 1. Capuano, Defendant You are hereby notified that on ,J:::L,") 1..f ' 200{ judgment by confession was entered against you in the sum of$118,731.81 in the above-captioned case. DATE: 1/4/0.5 YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, P A 17013 (717) 249-3166 or 1-800-990-9108 I hereby certifY that the following are the addresses of the defendants stated in the certificate of residence: Steven 1. Capuano 1229 Blossom Terrace Boiling Springs, P A 17007 '> '/ Attorney' r A, Steven 1. Capuano, Demandado(s) Por este medio sea avisado que en el dia de de 2004, un fallo por admision fue registrado contra usted por la contidad de $118,731.81 del caso antes escrito. Fecha: el dia de de 2004 Protonotario LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, V A Y A EN PERSONA A LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 Por este medio certifico que 10 siguiente es la direccion del demandado dicho en el certificado de residencia: Steven J. Capuano 1229 Blossom Terrace Boiling Springs, P A 17007 Aoo"f'i,;l2:,2~,) t_____...../ .I COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANIA- CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-51 CIVIL TERM Plaintiff v. : CONFESSION OF JUDGMENT STEVEN J. CAPUANO, Defendant : PREVIOUSLY ASSIGNED TO: NI A PRAECIPE TO THE PROTHONOTARY: Please mark the judgment entered in the above-captioned action satisfied. Respectfully submitted, SAlOIS, SHUFF, FLOWER & LINDSAY Date: November 14,2005 By: uff, Esquire upr e C urt ID #24848 2109 M et Street Camp Hill, P A 17011 (717) 737-3405 Attorneys for Plaintiff, PNC Bank, National Association , - ~<>.; ...< '::-J C) -co" c:.' "