HomeMy WebLinkAbout05-0054
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. Of; - ,91./ C/(->~L ~&~
: CONFESSION OF JUDGMENT
: CIVIL ACTION - LAW
STEVEN J. CAPUANO,
Defendant
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
Other authorized items:
Interest to December 22, 2004
Environmental Reports
Search Fee
Residential Appraisal
Commercial Real Estate Appraisals
Equipment Appraisals
Attorney's Commission
TOTAL
$576,557.32
$ 7,094.85
$ 4,800.00
$ 390.00
$ 275.00
$ 3,700.00
$ 4,000.00
$ 58.365.22
$655,182.39 plus
additional interest and costs
from the date of the
Complaint.
Respectfully submitted,
SAlOIS, SHUFF, FLOWER & LINDSAY
Date: December 30, 2004
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PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. OS - ~A
Cu', L ~~"'l
STEVEN J. CAPUANO,
Defendant
: CONFESSION OF JUDGMENT
: CIVIL ACTION - LAW
COMPLAINT FOR CONFESSION OF JUDGMENT
UNDER RULE 2951
I. The name and address of the Plaintiff is PNC Bank, National Association, 4242
Carlisle Pike, Camp Hill, Pennsylvania 17011.
2. The name and 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 May 25, 1999, in the
original principal amount of One Hundred Twenty-Five Thousand and 001100 Dollars
($125,000.00) (the "Note"), a true and correct photostatic reproduction of the original is attached
hereto as Exhibit "B" and made part hereof.
5. Debtor executed and delivered to Plaintiff an Amendment to Loan Documents dated
July 6, 2001 (the "Amendment to Loan Documents"), which included a Consent of Guarantor
signed by the Defendant in connection with the Note. A copy of the Amendment to Loan
Documents is attached hereto as Exhibit "c" and made a part hereof.
6. Debtor executed and delivered to Plaintiff a Second Amendment to Loan
Documents dated April 30, 2002 (the "Second Amendment to Loan Documents") which included a
Consent of Guarantor signed by the Defendant in connection with the Note. A copy of the Second
Amendment to Loan Documents is attached hereto as Exhibit "D" and made a part hereof.
7. 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 "E" and made a part hereof.
8. 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 "F" and made a part hereof.
9. Debtor is in default of Debtor's obligations to make payment to Plaintiff as required
III the Note, Amendment to Loan Documents, Second Amendment to Loan Documents,
Forbearance Agreement and Modification and Amendment of Forbearance Agreement and
Defendant is in default of Defendant's obligations to make payment to Plaintiff under the Guaranty,
the Amendment to Loan Documents, the Second Amendment to Loan Documents, the Forbearance
Agreement and the Modification and Amendment of Forbearance Agreement.
10. Plaintiff has demanded payment in full of all outstanding amounts as provided in the
Note, Amendment to Loan Documents, Second Amendment to Loan Documents, Forbearance
Agreement, Modification and Amendment of Forbearance Agreement and the Guaranty. A copy of
Plaintiffs demand is attached hereto as Exhibit "G" and made a part hereof.
11. 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 "H" and made a part hereof.
12. Judgment is not being entered by confession against a natural person in connection
with a consumer credit transaction.
13. There has not been any assignment of the Guaranty, the Note, the Amendment to
Loan Documents, the Second Amendment to Loan Documents, the Forbearance Agreement nor the
Modification and Amendment of Forbearance Agreement.
14. Judgment has not been entered on the Guaranty, the Note, the Amendment to Loan
Documents, the Second Amendment to Loan Documents, the Forbearance Agreement nor the
Modification and Amendment of Forbearance Agreement in any jurisdiction.
15. The amount due to Plaintiff as a result of Defendant's default is as follows:
a. Principal $576,557.32
b. Interest to December 22, 2004 $ 7,094.85
c. Environmental Reports $ 4,800.00
d. Search Fee $ 390.00
e. Residential Appraisal $ 275.00
f. Commercial Real Estate Appraisals $ 3,700.00
g. Equipment Appraisals $ 4,000.00
h. Attorney's Commission $ 58.365.22
TOTAL $655,182.39
16. Interest continues to accrue at the rate of the Bank's prime rate plus 16%.
WHEREFORE, Plaintiff, PNC Bank, National Association, demands judgment against
Steven J. Capuano, Defendant, in the amount of Six Hundred Fifty-Five Thousand One Hundred
Eighty-Two and 39/100 Dollars ($655,182.39), plus interest at the rate of the Bank's prime rate
plus 16%, through the date of payment, including on and after the date of entry of judgment on this
Complaint, and costs.
Respectfully submitted,
SAlOIS, SHUFF, FLOWER & LINDSAY
3b
Date: December~, 2004
.
~l...."'MERCIAL GUARANTY
W!$M!!!l!ti!YiIL. ,',COanNqii
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Borrower: LANDIS, INC. (TIN: 2324-13798)
WOODCRAFT DRIVE
MT. HOLl. Y SPRINGS, PA 17065
Guarantor: STEVEN J. CAPUANO
1229 BLOSSOM TERRACE
BOiliNG SPRINGS, PA 17007
Lender: PNC BANK, NATIONAL ASSOCIATION
4242 CARLISLE PIKE
CAMP HIll., PA 17001-8874
3"30
pC
AMOUNT OF GUARANTY. TIle amount ollhls Guaranty Is Unlimited. . , . ,'.
,. . . ,.. '.1'''~.. '
CONTINUING UNLIMITED GUARANTY. For good end vllluable conslderatlon,::S~,. J. .cAP,UAN;o: rG......tor") absolutely and
uncondlllonlllly guarantees and promises 10 pay to PNC BANK, NATIONAl.. ASSOCIA TIOH, (~der") P~'!Spfller, In legal tender of the United
St.alea 01 America, the Indebtedness (as lhaIterm Is dellned below) 01 LANDIS, INC.'rBOrrower~) to L;nct~r,on the terms and condlUons set
forth In this Guaranty. Under this Guaranty, the liability 01 Guarantor Is unltmlted and the .0b,lIga."ons of'GiJarantor are continuing. .
DEFINITIONS. The following words shall have the following meanings when used in this Guaranty: , ....
Borrower. The word '1lorrower" means lANDIS, INC..
Guarantor. The word "Guarantor" means STEVEN J. CAPUANO.
Guaranty. The word 'Guaranty" means this Guaranty made by Guarantor for the benefit of lender dated May 25,1999.
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, new existing or hereinafter incurred or qreated, including, without limitation, all loans. advances,
interest, costs. debts, overdraft indebtedness, credit card indebtedness, lease obligaftonS. other obligations, and llabiiilies of Borrower, or any of
them, and any present or future judgments 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, determined or undeterrtUf[ep; whether Borrower may be liable
individually or jointly with others, Of primarily or secondarily, or as guarantor or surety; whether recover1. en lhe Indebtedness may be or may
become barred Cl(' unenforceable against Borrower for any reason whatsoever; and whether the IndebtednesS'arises from transactions which may
be voidable on account of infancy, insanity, ultra vires, Of otherwise.
lender. The word '\.ender" means PNC BANK, NATIONAl. ASSOCIATION. its successors and assig~s.
Related Documents. The words "'Aaated Documents" mean and include without limitation all promissory notes, credit agreements, loan
agreements. environmental agreements, guaranties. security agreements, mortgages, deeds of trust, and all other instruments. agreements and
documents, whether now or hereafter existing, executed in connection with the Indebtedness.
NATURE OF GUARANTY. Guarantor's liability 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 earlier by reason of acceleration or
othelwise. of ail Indebtedness. Accordingly, no payments made upon the Indebtedness wili discharge or diminish the continuing liabiiity of Guarantor
in connection with any remaining portions of the Indebtedness or any of the Indebtedness which subsequently arises or is thereafter incurred or
contracted.
DURATtON OF GUARANTY. This Guaranty will take effect when received by Lender wfthoult~ ~1ly;.o!"!n~ll.cceptanceby lender. or any notice
to Guarantor or to Borrower. and will continue in full force until all lndebtedn~. inpurred .c.r ;c~~tr~teQ ;~f~~..!pipt by Lender of any notice of
revocation shall have been tuily and finally paid and satisfied and all other obligations of Gua,~9t9!,.under, thls,.Q~~ranty shail have been perlormed in
fuil. II Guarantor eiects to revoke this Guaranty, Guarantor may only do so in.'N.rtting. g;,\l2l;a_ry!p.!Ls(w~tt."!'Jl9.~,"f revocation must be mailed to
lender, by certified mail, at the address of Lender listed above or such other place os Lender rilay designate in writing. Written revocation of this
Guaranty will appiy only to advances or new Indebtedness created after actulifrBceipt by llinder' of Guarantor's written revocation. For this purpose
and without i1mitation, the term "new Indebtedness' does nof include Indebtedness which atlhe.time.of nolice.of,revocation is contingent, unliquidated,
undetermined or not due and which later becomes absolute, liquidated, determined or due. This Guaranty will continue to bind Guarantor for all
Indebtedness incurred by Borrower or committed by Lender prior to receipt of Guarantor's written notice of revocation, ineludlng any extensions,
renewals, substitutions or modifications of the Indebtedness. All renewals, extensions. substituijoos,.and..modifications of the Indebtedness granted
after Guaranto~s revocation, are contemplated under this Guaranty and, specificaily will not bi cOnside,ed'to lie. riaw Indebtedness. This Guaranty
sheil bind the estate of Guarantor os to Indebtedness created both before and after the death or:incap'acity ol'GcJarantor, regardless of Lender's aotual
notice of Guarantor's death. Subject to the foregoing, Guarantor's executor or administrato~ or'bther legal rep'resehtative may terminate this Guaranty in
the same manner in which Guarantor might have terminated it and with the same effect. . Release of'any othe' guarantor or termination of any other
guaranty of the Indebtedness shall not affect the liability of Guarantor under this Guaranty. A revocation ~iv8d by Lender tram anyone Of more
Guarantors shaH not affect the llabiilty of any remaining Guarantors under this Guaranty. Ills antlclpetecf!/illl ftucluatlons may occur In the
eggregate amount 01 Indebtedness covered by this Guaranty, and Ills speclllcally acknowledged aild:agrlM!d'by Guarantor that reducUons In
the amount of Indebtedness, even to >ero dollars ($0.00), prior to written revocation 01 this Guaranty 'by Guarantor shall not consUtute a
termination 01 this Guaranty. this Guaranty Is binding upon Guarantor and Guarantor's heirs, successors and assigns so long as any 01 the
guaranteed Indebtedness remlllns unpaid and even though the Indebtedness guaranteed may trom Ume 10 Ume be aro dollars ($0.00).
GUARANTOR'S AUTHORIZATION TO LEllDER. Guarantor authorizes Lender, either before or after any revocation hereof, wllhoul noUce or
__ and wIlhou1 _Ing Guarantor's liability under this Guaranty, trom Ume to Ume: (al prior to revocallon as set Ior1h above, to melee
one or more addlUonal aecured or unsecured loans to Borrower, to lease equipment or other gQods 10 Borrower, or otherwise to extend
_11Ional credit to Borrower; (b) to alter, compromise, renew, extend, accelerate, or otherwise change one or more Umes the Ume tor
payment or other terma of the Indebtedness or any perl of the Indebtedness, Including Increases end d_ of the rate of Interest on the
Indebtedness; extensions may be repeated and may be tor longer than the orIg1nelloen term; (c) to lake end hold MCUrlty tor the payment 01
lhls Guaranty or the Indebtedness, end excIIange, enforce, wlllve, subordinate, tall or decide noflo perfect, and release any sucIl securlty,
with or without \he substlluUOn 01 new coIlaterel; (d) to release, subaUtule, agree not to aue, or' deal wllh any one or more 01 Borrower's
sureDes, endorsers, or other guarantors on any terms or In any manner Lenclet may choose; Ie) to determine how, when and what appllcaUOn
of payments and credits shall be _ on the Indebtedness; (I) to apply ,such lI8!;U!l!y~d.dl~. f/!.e"orcter or manner of sale Ihereof,
including wlthOUtllmllatlon, any nonludlclal sale permitted by the terms olth~. conlro!lI.ng, iec!!!.'!Y agr~~!;Or deed 01 trust, as lender In Its
dlscreUon may determine; (g) to sell, _r, assign, or grant partlclpetl,!"sln 1II1;'Clr,..,y"RBtt OI,tI1e~~tednesa; and (h) to assign or
transfer this Guaranty In whole or In part. 'r ..". ~..:':"-~,:)?~:~~ '.' ';;_nJ~i;"" ~
GUARANTOR'S REPRESENTATIONS AND WARRANTI~. C}ual_~nt9r represents and waha.nts fo'l:end"erAhat:" (8) no representations or agreements
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.:;, ...,COMMERCIAL GUARA.
(Continued) -
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Page 2
05-25-1999
Loan No
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of any kind have been ma.;, ,ta.~G~or whi9t),~9.l!id Umi\ or .quality in .ny w.y the terms of Ihis Guaranty; (b) this Guaranty is executed .t
Barrow....s request .nd nat ~tthtlm!l"St of L~nder,;JC) GI!"f'&~t% has full power. right .nd authority to enter Into this Guaranty; (d) the provisions QI
this Guaranty do not conflict Wi\I\. !ir;~~ In ~ lI.&h!UIl u,"dorani' agreement or ather instrument binding upon Guarantor .nd do not mull In a VoaIetion
of any law. regulation, court ~or.Ql'dor app"",,~1e to Guarantor; (e) Guarantor has not and will not, wllhaut the prior wrItIen consent of Lender.
sell, leese, assign. encumber, hyPothecate, transfer, 9' otherwise dispose of all or subslanlially all of Guarantor's assets, or any interest therein; (f) UllOl\
Lender's request, Guarantor w\ll. provide 10 Lender financial .nd credll Information In !arm accepleble to Lender. and all such financiai informallon
which currenUy has been, and all Mure financial information which will be provided to Lender is and will be true and correct in all material respects and
fairly present the financial condition of GUarantor as of the deles lhe financiel intorm.tion is provided; (g) no malerial .dverse change has occurred In
Guaranto~s fin.nciaI condition since the date of Ihe most recenl financial slelements provided to Lender and no evenl h.s occurred which may
materially .d~ .ffect Gu.rantor's financi.1 condition; (h) no Iitigetion, clelm, invesligation, administrative proceeding or similar .ctian (lneluding
!hose lor unp.id laxes) .g.inst Guarantor is pending or threatened; 0) Lender has made no represenletion 10 Guaranlor as 10 !he creditworthiness of
Borrower; .nd m Guarantor has esleblished .dequ.te means of obtaining from Borrower on . continuing basis Information regarding Borrower's
financial condillon. Guarantor .grees tq. keep .dequ'tely informed from such means of eny facts, events, or circumslences which mighl in .ny way
.ffect Guaranlor's risks under this Guaranty. .nd Guarantor further agrees thaI Lender shaU have no obligation to disClose 10 Guaranlor any information
or documents .cquired by L.endlir in \he course of Ils relationship with Borrower.
, GUARANTOR'S WAIVERS. ExCept as prohiblled by .pprlC8ble law, Guarantor waives any right to require Lender (a) to continue lending money or to
_ ather C18d1t to Borrmyer; .(b);.lomal<e any presentment. protest. demand, or notice Of .ny kind, including notice of .ny nonp.yment 01 the
Indebtedness or of .ny nonpa~ ~ted to any collateral. or notice of any action or nanaction an lhe part of Borrower. Lender, any surety, end......
or other guarantor In connectiOn With \he Indebted....... or in connec:lion with \he creation of new or addllionallaans or obilgallons; (c) to resort lor
payment or to proceed directly,o,at'once against .ny peroon, inciuding Borrower or .ny other gu.rantar. (d) 10 proceed dlrectiy ag.inst or exhausl.ny
COIlalerel held by Lender from. B~, any ath<1r ,guarantor, or .ny ather pelSan; <e) to give notice of \he terms, time, .nd pl.ce of .ny public or
private sele of personal praper1Y: 5e9urlty h~d by !<eoder from Borrower or to comply with .ny ather applicable provisions of the Uniform Commercial
Code; (f) to pUlSUS any other, ~ wltlJin Len9~(s power. or (gl 10 cammll .ny .ct or omission of .ny kind. or at any lime. wrth respect to any
matter whatsoever. <"~'! ;-:' ,:.'.,:~. . "),f I.~.-' :.~
Guaranlor .Isa waives .ny .nd' all.rlghls or defenses'~ng by reeson of (.) any "one action" or "anti-<teficiency" lew or .ny other law which may
prevent lender from bringing any action, including a claim for deficiency, against Guarantor, before or atler Lender's commencement or completion of
.ny foreclosure action. eIlher' judici;l.I!y:jx.by"",!,i~ 4f . power .af sale; (b) .ny election of remedies by Lender which destroys or otherwise .dv8<S8ly
.f1ecIs Guar.ntor's subrogallan rights. or, Guara~to,~s rights to proceed eg.inst Borrower for reimbursement. including without limitation, .ny lass of
rights Guarantor may suffer by reason of .ny,lawtimiting. qualifying, or discharging the Indebtedness; (c) any disability or other defense of Borrower, of
any athec guarantor, or of .ny other .person, or by, reason of the cessation at Borrower's liabillly from .ny cause wh.tsaaver, other than payment in full
In legal lander, of the Indebted!)8SS; ,{d) any right to claim dl~harge of \he Indebtedness an the basis of unjustified impairment of .ny collateral tor the
Indebtedness; (e) any slelute of imitations, Ilalany time any action or suit broUllht by Lender .gainst Guaranlor is commenced \here is aulslendlng
Indebtedness of Borrower to Lender which is, not' barred by any applicable slaMs of limitations; or (f) any defenses given to guarantors at law or in
equity olher th.n actu.1 p.ymant .nd perform.nce afthe Indebtedness. If p.yment Is m.de by Borrower. whelher voluntarily or othelWisa, or by 'nY
Ihird party, an the Indebtedness and lhereafter Lender Is faread to remit tne .mount of that p.yment 10 Barrowe~s trustee in bankruptcy or to .ny
similar person under any federal or state bankruptcy law or law for the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of
enforcement allhis Guaranty,
Guarantor fUrlher waives and .grees not to assert or cl.im .t .ny time any deductions to the .mount guar.nteed under this Gu.ranty far any claim ot
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 w.rrants and .grees that each of the waivers set farlh .bave 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. II any such w.iver.iS determined to be contrary to any .ppllcabie law or public policy, such waiver shall ba effective only to the
extent permitted by law or pubiic policy.
LENDER'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 lew. Lander shall ill!ve.wilh respect to Guarantor's obligations to Lender under this Guaranty .nd 10 lhe extent permitted by laW, .
conlraclual security interest in .nd a right of setoff against. and Gu.rantor hereby assigns. conveys, deliver;, pledges. and tr.nsfers to Lender all of
Guarantor's right. titie .nd interest in .nd la, all deposits, moneys. securities .nd ather property Of Guarantor now or hereafter in the possession of or
an deposit with Lender, whathee held' in. general or special .ccount or deposit, whether held jointly with someone eisa, or whether held lor
sefekeeping or athelWisa, excluding however all IRA, Keogh, and trust accounts. Every such security interest .nd right of setoff m.y be exe",!sed
without demand upon or notice to Guarantor. No security interest or right of setoff shall be deemed to h.aw been wai'Jed by any act or conduct on the
part of Lender or by .ny neglecllllexercisa such right of setoff or to enfarea such security interest or by .ny delay in so doing. Every right of setoff .nd
security interest sh.1I ccntinue in ,full forea .nd effect until such .rlght of setoff or security interest is specifically w.lved or released by .n instrument in
wrtling executed by Lender. . . ",:. , ',' . . .' " .'
SlEORDINATION OF IlORROwm'S DEBTS,TO GUARANTOR. Guarentor agrees that the Indebtedness of Borrower \0 Lender, whether now
existing or hereafter created,shail be prior 'to ahy.clalm that Guarantor may now have or hereafter acquire against Borrower. whether or not Borrower
becomes insolvent. Guarantor hereby expreSSJysubordinates any chum Guarantor may have against Borrower, upon any account whatsoever, to any
claim that Lender may now or hereafter have, against' Borrower., .In the event of insotvency and consequent liquidation of the assets of Borrower,
through bankruptcy, by an assignment for, the, benefit of credltar$, by volunlery liquidation. or otherwise, the assets of Borrower applicable to Ihe
payment of the cialms at bath Lender and Gu.rantor shall be p.id to Lender .nd shall be filSl applied by Lender to the Indebtedness of Borrower to
Lender. Gu.rantor does herebyasslgn to Lender all cleims which II may have or acquire against Borrower or against .ny assignee or trustee in
bankruptcy of Borrower; provided however, thet suc~ assignment shall be effective only lor the purpose of assuring to Lender full p.yment in legal
tender of the Indebtedness. If Lender so requests. any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to
Guarantor sh.1I be m.r1<ed with . legend that the same are subject 10 this Guaranty and shan be delivered to Lender. Guarantor agrees. and Lender
hereby is authori2ed, in the name of Guarantor. from time to time to execute and file financing statements and continuation statements and to execute
such othee documents .nd to lake such ather .ctians as Lender deems necessary or appropriate 10 perlect, preserve and enforce its rights under this
Guaranty.
MISca..LANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty;
Amendments. This Guaranty. together with any Related Documents, constitutes the entire understanding and agreemenl of the parties as to lhe
mellers set forth in !his Guaranly. No eIleratian ot or amendment to this Guaranty shall be effective unless given in wrtling and signed by lha party
01 parnes sought to be charged or bound by the alteration or amendment.
Applicable Law. This Guaranty has been delivered to Lender and eccepted by Lender in the Commonweallh of Pennsylvania. If \here is a
Iawsutt. Guar.ntor .gr.... upon Lend....s request to submit to lhe jurisdiction of lhe courts of CUMBEFU.AND County, Commonwealth of
Pennsylvania. Lender and Guarantor hereby waive the right to any jury trial in any action, proc:eeding, or counterclaim brought by either Lender or
05-25-1999
Loan No
':OMMERCIAl GUARANTY
(Continued) ..:"', c"
...1
Page 3
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Gukrantor against the other. This Guaranty shall be governed by and ,~orislrued '1~"iiectirdancet'wi;Ii"1ne' laws of the Commonwealth of
Pennsylvania. ." '_,; .,>...-.;,~.,
Anomeya' Fees; Expenses. Guarantor agrees 10 pay upon demand all oftllncWs eosis' ar1ll8xp8nS8s',~lri1:Iudlng attorneys' fees and L.8nder's
legal expanses, incurred In connection with the enforcement ot this Guaranty, L.8nde< may pay someone else 10 help enforce Ihis Guaranty, and
Guarantor shall pay the costs and expenses of such enforcement. Costs.and expa']S"S ilJC!Ude 'Hlnder',s"attomeys' fees and legal expenses
whether or not there is a lawsuit, 1~luding attorneys' fees and legal expenses for l1:ankruP!l:jl ~rC>f"d1ngs.\(and Including efforts 10 modly or
vacate any automatic stay or ,nJunction), appeals. and any anticipated post-judgment col,I~~on, seTV!"'!li.:, ~~rantor also shall pay aU court costs
and such additional fees.. may be directed by the court. '. ',', . '" -"',. ' . "",,- ","
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Nollces. All notices requlrad to be given by either party to the other under this Guaranty .shall-be lIT. wrtting..'may be senl by -.:sImile (unless
otherwise required by law), and, except for revocation notices by Guarantor, shall be, effective wl)en ectuaJly1dellV8r8d or when deposited wiII1 a
nationally recognized ovemlgl)t courier, or when deposited in the United States mail, first class postage'prllp!lid, addressed to the party to wI10m
the notice is to be given at the address shown above or to such other addresses .. either party may;.designate 10 the _ In writing, All
revocation notices by Guarantor shall be In writing and sheJJ be effective only upon delivery 10 Lender as!li>r!>vided above In the section Iilled
"DURATION OF GUARANTY." If there is more than one Guarantor, notice to any Guarantor will constitub>H1ctice 10 all Guaranlor.l. For notice
purposes, Guarantor agrees to keep Lender Informed at all times of Guaranto~s current address.', ',' "e .
Inlerprelallon. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty In the singular shaI be
deemed to have been used in the plural where the context and construction so require; and where there is mora than one B~ named In this
Guaranty or when this Guaranty is executed by more than one Guarantor, tha words "Borrowa(' and "Guarantor" respectivIlly shall mean d and
anyone or more of them. The words "Guarantor," "Borrower," and "Lender" Include the heirs, successors, assigns, and transIwees of 88Ch of
them. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the PfOVisions 01 this
Guaranty. If a court of competent jurisdtctlon finds any provision of this Guaranty to be invalid or unenforceable 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 anyone or more of Borrower or Guarantor are corporations or partnerships, It is nol
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 axercise of such powsrs shall be guaranteed under this
Guaranty. , ' .
WaJver. Lender shall not be deemed to have waived any rights under this.,~_uaranty .unIE~s{s~ch:waive~ i.~.9'ven in writing and signed by Lender.
No delay or omission on the part 01 L.8nder in axercising any right shall operate.. a waiver 'crouch right~rl"ny'cther right. A waiver by Lender of
a provision of this Guaranty shall not prejudice or constitute a waiver of L"n~ers rightdttieiWiSif\'cdEimaiidstilcfcdmpliance with that provision or
any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and Guarantor, shall constitute a
waiver of any of L.8nde~s rights or of any of Guaranto~s obligations .. to',any Mure tran",,9I'0~. ,Y:I~en8,VllF,t1)e consent of L.8nder is required
under this Guaranty, the granting of such consent by Lender in any inst,ance shall nol:,,~~t1,1le '<;P\\l!11JJiog ,consent to subsequent Instances
where such consent is required and in all cases such consent may be gra{l~d.or withqel9J" thE! ~,?Ie 9tsC:,~ti9n..of Lender.
LIMITED RECOURSE AS TO NON-APPLICANT SPOUSE. Notwithstanding .~ything contained' herein'to: th(:Contrary. ~ is agreed that, unless an
exception to the requirements of Regulation B of the Board of Governors of the Federal Reserve- system applies .in:connection with the extension of the
Indebtedness and the execution of this Guaranty, the spouse who is deemed not to be the "applicant for credirtor purposes of such regulation (the
"Nor>-Applicant Spousej shall be personally liable under this Guaranty onty witD resP8!:'t,.,tc,assets;h~d'TLo!~~J','!S of the date hereof or hereafter
acquired, and the lien Of any judgment, order or other relief against the Non-Applicant Spouse shall be liml~p"I\!8r~to. Nothing herein, however, shall
limit the Lender's rights against any person, firm or entity other than the Non-Applicant Spouse. ),. "''-'''';
FINANCIAL INFORMATION (GUARANTOR). Guarantor shall deliver or cause to be delivered to Lendernol'lateflhan 120 days after the close of each
calendar year: (a) a copy of the federa I Income tax return filed by Guarantor, which tax return shall be a true ah'd''complele copy of the return filed by
Guarantor with the Internal Revenue Service; and (b) an updated personal financial statement of Guarantor. "i'~,:';(:~
CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AlITHORIZES AND EMPOWERS ANY ATIORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA. OR ELSEWHERE, TO APPEAR AT ANY TIME FOR
GUARANTOR AFTER A DEFAULT UNDER THIS GUARANTY, AND WITH OR WITHOUT COMPlAINT, FILED, AS OF AI{'( TERM, CONFESS OR
ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY, ALL ACCRUED INTEREST, LATE
CHARGES, AND AI{'( 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 ATIORNEY'S COMMISSION OF
TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTiON, BUT IN ANY EVENT NOT LESS THAN
FIVE HUNDRED DOllARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR
SO DOING. THIS GUARANTY OR A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY
GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR sHALL NOT BE EXHAUSTED BY AI{'( EXERCISE OF THAT
AlITHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS
GUARANTY. GUARANTOR HEREBY WAIVES AI{'( RIGHT GUARANTOR MAY HAVE TO NOTICE OR TOA HEARING IN CONNECTiON WITH AI{'(
SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND/OR HEMING REQUIRE!? UNoEFl'~~~I~LE LAW WITH RESPECT TO
EXECUTION OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTA'T1VE QF"LENOER SPECIFrCAi:tV'CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS'BEEN REPRESEI\'TED BY'INDEPENOENT LEGAL COUNSEL
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ AU:':iHe 'PR6visiCSNS"bF:~Hrs":a-iJARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY ,I~ El'fFqrv(~Vl'Q!!;~UARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITlED "DURATION OF GUARANTY." NO FORMAL ACCEPTANCE aV'l:ENliER< IS lleCessARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GU IS DATED MAY 25,1199. ~-'. :~';'.' I:J ~r"'-!;i. ~ ',;.:",.r.t-',~.1"':1-;"
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THIS GUARANTY S B SIGNED AND SEALED BY THE UNDERSIGNED. ,,:)~..; ~" ".',l!-';'l\'~'~"
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05-25-1999
Loan No
COMMERCIAL GUARAf
(Continued) .
Page 4
STATE OF
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INDIYIDUAL ACKNOWLEDGMENT
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On this, the ~S#-. ~X:~l:':~ · ,'19QQ , bel"", me ~ W . the
undersigned Notary pubrlC, ,perso(l8l1y ap~, J. CAPUANO, known to me (or satisfaclorl/y proven) to be the person whose name is
subscribed to the within instrument, and acIIn~that he or she 8X8Cuted the sarna lor the purposes _n contained.
In __ _reef,1 tMieilMo_my:h.id'~~~.
COUNTY OF
Notary Public in and lor the StaIB of f/J
L.ASER PRO, Reg. U.5. PaL' T.M. OU., V... 3.2Gb (C) 1en CFI ProS<<vIcIt,lnc. All rights r..rved.IPA-E20 LANCIS2.LH C38.0VL)
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'1 '"PR1dMYssORY -'NOTE,';~';i,;
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Borrower: LANDIS, INC. (TIN: 232443798)
WOODCRAFT DRIVE
MT. HOLLY SPRINGS, PA 17065
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Lender: PNC BANK, NATIONAL''';S'SOCIATION
4242 CARLISLE PIKE' " '
CAMP HILL, PA 17001-8874
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Principal Amount: $125,000.00 Initial Rate: 8.000% Date of Note: May 25, 1999
PROMISE TO PAY. LANDIS, INC. (''Borrower'') promises to pay to PNC BANK, NATIONAL ASSOCIATION ("Lender"), or order,ln lawful money
of the United States of America, the principal amount of One Hundred Twenty Five Thousand &. 0011.00 Dollars ($125,000.00) or so much as may
be outstanding, together with Interest on the unpaid outstanding principal balance of each advance, Interest shall be calculated from the date
of each advance until repayment 01 each advance. . ;,
PAYMENT. Borrower will pay this loan In accordance with the following payment schedule:
Borrower will pay regular monthly payments of accrued Interest beglnninS'rJune 30;: "1999, . 8':1d.. aU subsequent Interest
payments are due on the same day of each month aner that. Borrower will p~y)hisl,oan I~'f C?~~.pay~ent of all outstanding
principal plus all accrued unpaid Interest on the expiration Date. ".Borrowet:may.~b'orrowJ .repaY~.~nd reborrow hereunder
until the Expiration Date, subject to the terms and conditions of itils Note. r~iO::',Explra)lon Date"~shall mean May 24, 2000,
or such later date as may be designated by written notice from Lender to Bcirr<lwer.,Borrciwe(~Cknowledges and agrees'
that In no event will Lender be under any obligation to extend or'renew the loan or this Nole beyond the Initial Expiration
Date. In no event shall the aggregate unpaid principal amount of advances under thl. Note exceed the face amount of this
Note. . . ' , ,'.',
The annual interest rale for this Note is computed on a 365/360 basis; that is, by ~pplyingJbe ratio of the ano~al. in~erest rale over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number ofidays the:;,principal.balance:,js',outstanding. Borrower will pay Lender
at Lender's address shown above or at such other place as Lender may designate in writing.,., Unless .otherwis8':agreed or required by applicable law,
payments will be applied first to accrued unpaid interest, then to principal, and any .remaining. amount. to any.~unpajd :collection costs. and late charges.
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VARIABLE INTEREST RATE. The interest rate on this Nole is subject to change from time 10 time based on'changes in an index which is the Lender's
prime rate (the "lndex"). The index is a rate per annum as publicly announced by Lender from time to'ti~e ~s. it~'g.~me rate. The prime rale is not tied
to any external rate or index and it does not necessarily reflect the lowest rate of interest actually chargedbyLendEir to any particular class or category
of customers. Lender will tell Borrower the current Index rate upon Borrower's request. Borrower understands tbat;t.ender may make loans based on
other rates as well. The interest rale change will not occur more often than each day. The Index currently I. 7.750"" per annum. The Interest rate
to be applied to the unpaid principal balance of this Note will be at a rate of 0.250 percentage points over ,the Index, resulting In an Initial rate
of 8.000% per annum. NOTICE: Under no circumstances will the interest rate on this Note be more than"the max.imum rate allowed by applicable law.
PREPAYMENT. Borrower may pay without penalty aU or a portion of the amount owed earlier than It is dUe, Early payments will not, unless agreed to
by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments of accrued unpaid interest. Rather, they will reduce the
principal balance due.
LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 5.000,," of the unpaid portion of the regularly scheduled 'payment
or $100.00, whichever I. less. '
DEFAULT. Borrower will be in defauitll any of the following happens: (a) Borrower fails 10 make any payment when due. (b) Borrower breaks any
promise Borrower has made to Lender, or Borrower fails to comply with or to perform when' due any other term, obligation, covenant, or condition
contained in this Note or any agreement related to this Note, or in any other agreement or 1~'~J3orrow~r has w!tl\.Lender. (c) Borrower defaults under
any loan. extension of credit, security agreement, purchase or sales agreement, or any ot~~~'agr~m~nt..:.il1,1~Yci!0l;0flany other creditor or person that
may materiaUy eHec! any of Borrower's property or Borrower's ability to repay thi,stlol,e or peqQ{m';I?.i>ry-?w~r'~~qp!ig]lf!9ns under this Note or any of the
Related Documents. (d) Any representation or statement made or furnished to ~el)der by Spqcw~r.o,rgn Bo~rp~a~:.s.,p,ehalf is false or misleading in any
material respect either now or at the time made or furnished. (e) Borrower bj:'K:omes InS9,h!gnt/a' r~ei-v:~o;js sppointed forpsny part of Borrower's
property, Borrower makes an assignment for the benefit of creditors, or any proc,,!,ding is C9m(l19n9llP eit~'l(py ,~orrower or against Borrower under
any bankruptcy or Insolvency laws. (f) Any creditor tries to take any of Borrower..s,'property"9...,or,m,,,,:(1Ic.~ b<lOcj~l!has a lien or security interest. This
includes a garnishment of any ot Borrower's accounts with Lender, (g) Any guarantor dies. or, any ,of. ttlB other.e"ents described in this default section
occurs with respect to any guarantor of this Note. (h) A material adverse change occurs.'in Borrower's' finanCial condition, or Lender believes the
prospect of payment or performance of the Indebtedness is Impaired. :';', '-;:.' . :'trif~:'1I.~-"'-- ~l i ".in:,:;..:..1 ~~\: '
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LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by apglicabl~:I!l~. d,ech~,!~ ~11~,,-entire unpaid principal balance on
this N.ote and all ac~rued ~npaid interest immed,iately due, and !hen Borro~er will.pay that:~m9~.nt.:t, ~ppn~:'d~~f~J.!~~ !ncludlng. failure to pay upon ~nal
matunty, Lender, at Its option, may also, If permitted under applicable law, Increase the vanabfe'lnterest rate OrU!.'llS Note to 5.250 percentage pOints
over the Index. The interest rate will not exceed the maximum rate permitted by applicable law. Lerid~r may tii~e~or pay someone else to help collect
this Note if Borrower does not pay, Borrower also will pay Lender that amount. This includes, 'subject. to iiiy"'ij~its under applicable law, Lender's
attorneys' lees and Lender's legal expenses whether or not there Is a lawsuit, including attorneys' fees and legal:eXpenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated postt.:.w.c;tgment collection services. If not
prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums providecrbyi(i~~fludgment is entered in connection
with this Note, interest will continue to accrue on this Note after judgment at the interest rate applicable"lo thIS' ~ote at the time jUdgment is entered.
This Note has been delivered to Lender and accepted by Lender In the Commonwealth of Pennsylvania, If there Is a lawsuit, Borrower agrees
upon Lender's request to submit 10 the jurisdiction Of the court. of CUMBERLAND County, the Commonwealth of Pennsylvania. Lender and
Borrower hereby waive the rtghtlo any jury trtal In any action, proceeding, or counterclaim brought by either Lender or Borrower against the
other. This Note shall be governed by and construed In accordance with the laws of the Commonwealth of 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, title and Interest In and to. Borrower's accounts with Lender (whether checking, savings, or some ether account), including
without limitation all accounts held jointly with someone else and all accounts Borrower may open in the. future, excluding however all IRA and Keogh
accounts, and all trust accounts for which the grant of a security Interest would be prohibited by law. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on this Note against any and all such accounts." ...
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances u~~er. this Not~:[I!lY be.rf~q~.ested.9~~lIY by Borrower or by an authorized
05-25-1999
Lo.an No ,
PROMISSORY NOTE::
(Continued)
Page 2
'~1" ._. .
~f credit until Lender receives ';0;';:' Borrower at Lender's address shown above written notice of revocation of their authority: STEVEN J. CAPUANO,
PRESIDENT; and JOSEPH V;'CAPUANO, SECRETARYITREASURER. Borrower agrees to be liable for all sums either: (a) advanced in accordance
with the instructions of an autl'loftzed'perSon or (b) credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this
Note at any time may be evidenced by'erido~ments .on this Note or by Lender's internal records, including daily computer print-outs. Lender will
have no obligation to advance'fu.nds 'under~this Note"if: (a) Borrower or any guarantor is in default under the terms of this Note or any agreement that
Borrower or any guarantor has'with',C9nder;'lncllltfing'any agreement made in connection with the signing of this Note; (b) Borrower or any guarantor
ceases doing business or is !n~,~I."~:~!r:,(c);a.ny"g~~~!!n,tl?: seek~" 71aims or othe,:"ise attempts to Ii~it. modify or revoke such guarantor's guara.ntee of
this Note or any other loan wllh'l.~/'.de~;or ,(~). B,~rTower has app,hed funds provided pursuant to thiS Note for purposes other than those authonzed by
Lender.'~.':' ....~'>.. ",. ,,:,,,,,..-;.,~ ",' ".!
CLEANUP PROVISION. Borro~~r ac~~owleCiges,.~rid'.':9rees t~~t prior to the expiration Date and annually thereafter ~ the Expiration Date is extended,
all amounts borrowed under,the'line of credIt hereu'nder must be repaid in full so that there is no outstanding principal balance for a period of at least
30 consecutive days. ',' . "':,) ." '.."',"" I.~..-:
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YEAR 2000 COMPLIANCE. 'lorr9".'erhas revlewed".the arellS, within its business and operations which could be adversely affected by, and has
developed or is developing~:pn?gr~_rp.~o add.ni!~s on"s tim~ly.pa.sis the risk that certain computer applications used by Borrower may be unable to
recognize and perform property,date-sensitive fu~ctions Invoiving dates prior to and aner December 31, 1999 (the "Year 2000 Problem"). The Year
2000 Problem will not resurt,' and is .no.! reasonably -expected to' result, in any material adverse effect on the business, properties, assets, financial
condition, results ot operationso:r prospectS of Borr:01/o'er, or the ability of Borrower to duly and punctually payor perform Its obligations hereunder and
under the Related Documents. . .. . ,
NOTICE OF DEMAND. Upon sixty (SO) days prior written notice to Borrower, Lender may at any time. with or w~hout cause, demand tull payment of
the outstanding principal balance of this ,.Nots, all accrued and unpaid interest on the balance, and all other amounts due in accordance with the terms
of this Note or any other documents executed in connection with this Note. Unless Lenders notice provided otherwise, Lender will have no further
obligation to make any new loans to Borrower. Termination under this paragraph will not affect any loans evidenced by this Note advanced before the
date on the termination notice. If Lender chooses, at its sole option, to make advances after giving such notice, Borrower agrees that any such loans
shall be evidenced by this Nole.
PRIOR NOTE. This Note amends and restates, and is in substitution for, a Note in the principal amount $75.000.00, payable to Lender, dated April 21,
1999 (the "Original Note"). However, without duplication, this amended and restated Note shall not constitute a novation and shall in no way extinguish
Borrower's obligation to respy a~. indebtedness evidenced by the Original Note. Nothing herein is intended 10 impair the priority or effect of any security
agreement with respect to 1he.~.o.rTower's obligations hereunder and under and other document relating hereto.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this .Note without losing them. Borrower and any
other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, protest and notice of
diShonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writfng, no party who signs this .Note, whether as maker,
guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly Bnd
for any length 01 time) this loan, or release 'any party or guarantor or collateral; Of impair, fail to realize upon or perfect Lender's security interest in the
collateral; and take any otheractiQn. deemed necessa'ry by Lender without the consent of or notice to anyone. All such parties also agree that Lender
may modify this loan without the,cons-enl'ofo(-notice to anyone other then the party with whom the modification Is made. Ilany portion ct lhis Note Is
for ahy reason determined tOb7~'u.n~,riforce~ble,:lt ~.ilJ..not af1ecn~e'~nforceabiJity of any other provisions of this .Note.
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CONFESSION OF JUDGMENT. ,BORROWER HEREBY iRREVOCABLY ALITHORIZES AND EMPOWERS ANY ATIORNEY OR THE PROTHONOTARY
OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER
A DEFAULT UNDER THIS NOTE. AND WITH OR WITHOLIT COMPLAiNT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST
BORROWER FOR THE ENTIRE,PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST. LATE CHARGES. AND ANY AND ALL AMOUNTS
EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THiS NOTE TOGETHER WITH iNTEREST ON SUCH
AMOUNTS. TOGETHER Wi"H COSTS OF, SUIT, AND AN ATrORNEY'S COMMiSSION OF TEN PERCENT (10%) OF THE UNPAID PRiNCIPAL
BALANCE AND ACCRUED INTEREST FOR COLLECTION, BLIT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH
JUDGMENT OR JUDGMENTS ONE OR MORE EXECLITIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS
NOTE VERIFIED BY AFFIDAViT- SHALL BE SUFFICIENT WARRANT. THE ALITHORiTY GRANTED IN THIS NOTE TO CONFESS JUDGMENT
AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT ALITHORITY, BLIT SHALL CONTINUE FROM TIME TO TIME AND
AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAiVES ANY RIGHT BORROWER
MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND lOR
HEARING REQUIRED UNDER APPLICABLE LAW WiTH RESPECT TO EXECLITION OF THE JUDGMENT, AND STATES THAT EITHER A
REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROViSION TO BORROWER'S AiTENTION OR
BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD All THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE
INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED
COpy OF THE NOTE.
GNED AND SEALED BY THE UNDERSIGNED.
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Amendment to Loan Documents
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PNCBANK.
ACCOUNT #30944824-0000475983-601138518
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THIS AMENDMENT TO LOAN DOCUMENTS (this "Amendment") is made as of ::;:;~, 6.2001, by
and between LANDIS, INC. (the "Borrower"), and PNC BANK, NA TIONAL ASSOCIATION (the "Bank").
BACKGROUND
A. The Borrower has 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, 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 Amendment (collectively as amended
from time to time, the "Loan Documents") which evidence or secure some or all of the Borrower's obligations to the Bank
for one or more loans or other extensions of credit (the "Obligations").
B. The Borrower and the Bank desire to amend the Loan Documents as provided for in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Certain of the Loan Documents are amended as sel forth in Exhibit A. Any and all references to any Loan I
Document in any other Loan Document shall be deemed to refer to such Loan Document as amended by this Amendment.
This Amendment is deemed incorporated into each of the Loan Documents. Any initially capitalized tenos used in this
Amendment withom defmition shall have the meanings assigned to those lenos in the Loan Documents. To the extent that
any teno or provision of this Amendment is or may be inconsistent with any leno or provision in any Loan Document, the
terms and provisions of this Amendment shall control.
2. The Borrower hereby certifies that: (a) all of its representations and warranties in the Loan Documents, as
amended by this Amendment, are, except as may otherwise be stated in this Amendment: (i) true and correct as of the date of
this Amendment, (ii) ratified and confirmed without condition as if made anew, and (iii) incorporated into this Amendment
by reference, (b) no default or Event of Default or event which, with the passage of time or the giving of notice or both,
would constitute an Event of Default, exists under any Loan Document which will not be cured by the execution and
effectiveness of this Amendment, (c) no consent, approval, order or authorization of, or registralion or filing with, any third
party is required in connection with the execution, delivery and carrying out of this Amendment or, if required, has been
obtained, and (d) this Amendment has been duly authorized, executed and delivered so that it constitutes the legal. valid and
binding obligation of the Borrower, enforceable in accordance with its tenos. The Borrower confirms that the Obligations
remain outstanding without defense, set off, counterclaim, discount or charge of any kind as of the date of this Amendment.
3, The Borrower hereby confirms that any collateral for the Obligalions, including liens, security inlerests,
mortgages, and pledges granted by the Borrower or third parties (if applicable), shall continue unimpaired and in full force
and effect, and shall cover and secure all of the Borrower's existing and future Obligations to the Bank[, as modified by this
Amendment].
4. As a condition precedent to the effectiveness of this Amendment, the Borrower shall comply with the tenos and
conditions (if any) specified in Exhibit A.
5. This Amendment may be signed in any number of counterpart copies and by the parties to this Amendment on
separate counterparts, but all such copies shall constitute one and the same instrument. Delivery of an executed counterpart
of a signature page 10 this Amendment by facsimile transmission shall be effective as delivery of a manually execuled
counterpart. Any party so executing this Amendment by facsimile transmission shall promptly deliver a manually executed
counterpart, provided that any failure to do so shall not affect the validity of the counterpart executed by facsimile
transmission.
6. This Amendment will be binding upon and inure to the benefit of the Borrower and the Bank and their respective
heirs, executors, administrators, successors and assigns.
Form I7A- Multistate Rev. 3/99
L1-./11 b,l {(i}1
/'
'7. This Amendment has been delivered to and accepted by the Bank and will be deemed to be made in the State
where the Bank's office indicated in the Loan Documents is located. This Amendment will be interpreted and the rights and
liabilities of the parties hereto detennined in accordance with the laws of the State where the Bank's office indicated in the
Loan Documents is located, excluding its conflict oflaws rules.
8. Except as amended hereby, the terms and provisions of the Loan Documents remain unchanged, are and shall
remain in full force and effect unless and until modified or amended in writing in accordance with their terms, and are
hereby ratified and confirmed. Except as expressly provided herein, this Amendment shall not constitute an amendment,
waiver, consent or release with respect to any provision of any Loan Document, a waiver of any default or Event of Default
under any Loan Document, or a waiver or release of any of the Bank's rights and remedies (all of which are hereby reserved).
The Borrower expressly ratifies and confirms the confession of judgment (if applicable) and waiver of jury trial
provisions contained in the Loan Documents.
WITNESS the due execution of this Amendment as a document under seal as of the date fIrst
written above.
(SEAL)
STEVEN CAPUANO
wrrnE~/~
Print Name: !/)O SPO/l !/ CPA t, :',,-Q
;
I: v
Title: /I /-::;~ ~ :. /r",q ~viZ ErZ
PRESIDENT
PNC BANK. NATIONAL ASSOCIATION
/'7.
By: '/----z-
/
Print Name: GREGG BUSH
/'/ ? /~
(-/~
Title:
ASSIT VICE PRESIDENT
-2 -
Form 17A - Multistate Rev. 3/99
/
EXHIBIT A TO
AMENDMENT TO LOAN DOCUMENTS
DATED ::Py ~ ,2001
A. The "Loan Documents" that are the subject of this Amendment include the following (as any of the
foregoing have previously been amended, modified or otherwise supplemented):
1. Promissory Note dated May 25, 1999 in the original amount of$125,000.00 (the "Note'').
2. Business Loan Agreement dated May 25, 1999 (the "Agreement").
3. All other documents, instruments, agreements, and certificates executed and delivered in
connection with the Loan Documents listed in this Section A.
B. The Loan Documents are amended as follows:
1. The Note is hereby modified as defined below:
The maximum principal amount of the Note is hereby increased from One Hundred Twenty
Five Thousand Dollars ($125,000.00) to Five Hundred Thousand Dollars ($500,000.00).
2. The Agreement is hereby modified as defined below:
The following covenant is hereby added to the Agreement.
ACCOUNTS RECEIVABLE AGING ANALYSIS.
Borrower shall deliver or cause to be delivered to Lender not later than 45 days after the
close of each quarter, Borrower's detailed schedule of accounts receivable aging analysis,
in form and content satisfactory to Lender.
C. Conditions to Effectiveness of Amendment: The Bank's willingness to agree to the amendments set
forth in this Amendment are subject to the prior satisfaction of the following conditions:
Upon execution of this Amendment, Borrower shall deliver to Lender an executed Subordination
Agreement signed by Joseph V. Capuano
- 3 -
Form 17A-Multistate Rev. 3199
/'
CONSENT OF GUARANTOR
Each of the undersigned guarantors Gointly and severally if more than one, the "Guarantor")
consents to the provisions of the foregoing Amendment (the "Amendment") and all prior amendments
(if any) and confirms and agrees that: (a) the Guarantor's obligations under its Guaranty and Suretyship
Agreement dated May 25, 1999 (collectively if more than one, the "Guaranty"), relating to the
Obligations mentioned in the Amendment, shall be unimpaired by the Amendment; (b) the Guarantor
has no defenses, set offs, counterclaims, discounts or charges of any kind against the Bank, its officers,
directors, employees, agents or attorneys with respect to the Guaranty; and (c) all of the terms,
conditions and covenants in the Guaranty remain unaltered and in full force and effect and are hereby
ratified and confirmed and apply to the Obligations(, as modified by the Amendment). The Guarantor
certifies that all representations and warranties made in the Guaranty are true and COrrect.
The Guarantor hereby confirms that any collateral for the Obligations, including liens, security
interests, mortgages, and pledges granted by the Guarantor or third parties (if applicable), shall continue
unimpaired and in full force and effect, shall cover and secure all of the Guarantor's existing and future
Obligations to the Bank[, as modified by this Amendment].
The Guarantor ratifies and confirms the indemnification, confession of judgment (if
applicable) and waiver of jury trial provisions contained in the Guaranty.
WITNESS the due execution of this Consent as a document under seal as of the date of this
Amendment, intending to be legally bound hereby.
/
/':? J
':::o.~ /\.
d.)J'A
(SEAL)
AmH: w;4;.X'
~~
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Print Name:
e: Steven Capuano
V~/2~
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Print Name: ~ -4.. ~-h
~Or~~
(Individu )
Print Name: Kimberly Capuano
(SEAL)
M:ICLDlWORDI17a-m-p,doc Rev, 3/99
-4-
Form 17 A - Multistate Rev. 3/99
5f50
P
.'
ACCOUNT #: 30944824-0000475983-601138518
Second Amendment to Loan Documents
PNCBANK
TInS SECOND AMENDMENT TO LOAN DOCUMENTS (this "Amendment") is made as of April 30, 2002, by
and between LANDIS, INC. (the "Borrower"), and PNC BANK, NATIONAL ASSOCIATION (the "Bank").
BACKGROUND
A. The Borrower bas 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, 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 Amendment (collectively as amended
from time to time, the "Loan Documents") which evidence or secure some or all of the Borrower's obligations to the Bank
for one or more loans or other extensions of credit (the "Obligations").
To induce the Bank to enter into this Amendment, Borrower waives and releases and forever discharges the Bank
and its officers, directors, attorneys, agents, and employees from any liability, damage, claim, loss or expense of any kind that
they may have against the Bank or any of them arising out of or relating to the Obligations. The Borrower further agrees to
indemnify and hold the Bank and its officers, directors, attorneys, agents and employees harmless from any loss, damage,
judgment, liability or expense (including attorneys' fees) suffered by or rendered against the Bank or any of them on account
of any claims arising out of or relating to the Obligations. The Borrower further states that it has carefully read the foregoing
release and indemnity, knows the contents thereof and grants the same as its own free act and deed.
B. The Borrower and the Bank desire to amend the Loan Documents as provided for in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound
hereby, the parties hereto agree as follows:
I. Certain of the Loan Documents are amended as set forth in Exhibit A. Any and all references to any Loan
Document in any other Loan Document shall be deemed to refer to such Loan Document as amended by this Amendment.
This Amendment is deemed incorporated into each of the Loan Documents. Any initially capitalized terms used in this
Amendment without definition shall have the meanings assigned to those terms in the Loan Documents. To the extent that
any term or provision of this Amendment is or may be inconsistent with any term or provision in any Loan Document, the
terms and provisions of this Amendment shall control.
2. The Borrower hereby certifies that: (a) all of its representations and warranties in the Loan Documents, as
amended by this Amendment, are, except as may otherwise be stated in this Amendment: (i) true and correct as of the date of
this Amendment, (ii) ratified and confirmed without condition as if made anew, and (iii) incorporated into this Amendment
by reference, (b) no default or Event of Default or event which, with the passage of time or the giving of notice or both,
would constitute an Event of Default, exists under any Loan Document which will not be cured by the execution and
effectiveness of this Amendment, (c) no consent, approval, order or authorization of, or registration or filing with, any third
party is required in connection with the execution, delivery and carrying out of this Amendment or, if required, has been
obtained, and (d) this Amendment has been duly authorized, executed and delivered so that it constitutes the legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms. The Borrower confirms that the Obligations
remain outstanding without defense, set off, counterclaim, discount or charge of any kind as of the date of this Amendment.
3. The Borrower hereby confirms that any collateral for the Obligations, including liens, security interests,
mortgages, and pledges granted by the Borrower or third parties (if applicable), shall continue unimpaired and in full force
and effect, and shall cover and secure all of the Borrower's existing and future Obligations to the Bank, as modified by this
Amendment.
4. As a condition precedent to the effectiveness of this Amendment, the Borrower shall comply with the terms and
conditions (if any) specified in Exhibit A.
Form I7A-Multistate Rev. 3/99
[Kn, hi t Lc/J if
5. To induce the Bank to enter into this Amendment, Borrower waives and releases and forever discharges the Bank
. and its 'officers, directors, attorneys, agents, and employees from any liability, damage, claim, loss or expense of any kind that
they may bave against the Bank or any of them arising out of or relating to the Obligations. The Borrower further agrees to
indemnify and hold the Bank and its officers, directors, attorneys, agents and employees hannless from any loss, damage,
judgment, liability or expense (including attorneys' fees) suffered by or rendered against the Bank or any of them on account
of any claims arising out of or relating to the Ohligations. The Borrower further states that it has carefully read the foregoing
release and indemnity, knows the contents thereof and grants the same as its own free act and deed
6. This Amendment may be signed in any number of counterpart copies and by the parties to this Amendment on
separate counterparts, but all such copies shaI1 constitute one and the same instrument. Delivery of an executed counterpart
of a signature page to this Amendment by facsimile transmission shall be effective as delivery of a manually executed
counterpart. Any party so executing this Amendment by facsimile transmission shall promptly deliver a manually executed
counterpart, provided that any failure to do so shall not affect the validity of the counterpart executed by facsimile
transmission.
7. This Amendment will be binding upon and inure to the benefit of the Borrower and the Bank and their respective
heirs, executors, administrators, successors and assigns.
8. This Amendment has been delivered to and accepted by the Bank and will be deemed to be made in the State
where the Bank's office indicated in the Loan Documents is located. This Amendment will be interpreted and the rights and
liabilities of the parties bereto determined in accordance with the laws of the State where the Bank's office indicated in the
Loan Documents is located, excluding its conflict oflaws rules.
9. Except as amended hereby, the terms and provisions of the Loan Documents remain unchanged, are and sball
remain in full force and effect unless and until modified or amended in writing in accordance with their terms, and are
hereby ratified and confirmed. Except as expressly provided herein, this Amendment shall not constitute an amendment,
waiver, consent or release with respect to any provision of any Loan Document, a waiver of any default or Event of Default
under any Loan Document, or a waiver or release of any of the Bank's rights and remedies (all of which are hereby reserved).
The Borrower expressly ratifies and confirms the confession of judgment (if applicable) and waiver of jury trial
provisions contained in the Loan Documents,
WITNESS the due execution of this Amendment as a document
written above.
By:
Officer:
Title:
seal as of the date first
WITNESS:
~~a ~-<
Pnnt e. A-": "'" (,.. .u, ~ ,
/
LANDIS,
. CAPUANO
ENT
PNC BANK, NATIONAL ASSOCIATION
~t?~
(
Officer: GREGO A. BUSH
Title: ASSISTANT VICE PRESIDENT
By:
-2-
Form 17 A - Multistate Rev. 3/99
'.
EXHIBIT A TO
SECOND AMENDMENT TO LOAN DOCUMENTS
DATED April 30, 2002
A. The "Loan Documents" that are the subject of this Amendment include the following (as any of the
foregoing have previously been amended, modified or otherwise supplemented):
1. Promissory Notes dated May 25, 1999 in the amount of$125,000.00 (the "Note").
2. Amendment to Loan Documents dated July 6, 2001 (the "Amendment").
3. Business Loan Agreement dated May 25, 1999 (the "Agreement").
4. All other documents, instruments, agreements, and certificates executed and delivered in
connection with the Loan Documents listed in this Section A.
B. The Loan Documents are amended as follows:
1. The Note is hereby modified as dermed below:
A. The maximum principal amount of the Note is hereby increased from Five Hundred
Thousand dollars ($500,000.00) to Five Hundred Eighty Thousand dollars ($580,000.00).
B. The maturity date is hereby extended from May 31, 2002 to August 29, 2002.
C. Conditions to Effectiveness of Amendment: The Bank's willingness to agree to the amendments set
forth in this Amendment are subject to the prior satisfaction of the following conditions:
!. This Amendment duly executed and delivered by Borrower to Bank, including the attached
consent.
- 3 -
Form 17A-Multistate Rev.3199
CONSENT OF GUARANTOR
Each of the undersigned guarantors (jointly and severally if more than one, the "Guarantor")
consents to the provisions of the foregoing Amendment (the "Amendment'') and all prior amendments
(if any) and confirms and agrees that: (a) the Guarantor's obligations under its Guaranty and Suretyship
Agreement dated May 25, 1999 (collectively if more than one, the "Guaranty''), relating to the
Obligations mentioned in the Amendment, shall be unimpaired by the Amendment; (b) the Guarantor
has no defenses, set offs, counterclaims, discounts or charges of any kind against the Bank, its officers,
directors, employees, agents or attorneys with respect to the Guaranty; and (c) all of the terms,
conditions and covenants in the Guaranty remain unaltered and in full force and effect and are hereby
ratified and confirmed and apply to the Obligations, as modified by the Amendment. The Guarantor
certifies that all representations and warranties made in the Guaranty are true and correct.
The Guarantor hereby confirms that any collateral for the Obligations, including liens, security
interests, mortgages, and pledges granted by the Guarantor or third parties (if applicable), shall continue
unimpaired and in full force and effect, shall cover and secure all of the Guarantor's existing and future
Obligations to the Bank, as modified by this Amendment.
By signing below, each Guarantor who is an individual provides written authorization to the Bank
or its designee (and any assignee or potential assignee hereof) to obtain the guarantor's personal credit
profile from one or more national credit bureaus. Such authorization shall extend to obtaining a credit
profile for the purposes of update, renewal or extension of such credit or additional credit and for
reviewing or collecting the resulting account. A photocopy or facsimile copy of this authorization shall
be valid as the original. By signature below, each such Guarantor affirms his/her identity as the
respective individual(s) identified in the Guaranty.
The Guarantor ratifies and confirms the indemnification, confession of judgment (if
applicable) and waiver of jury trial provisions contained in the Guaranty.
WITNESS the due execution of this Consent as a document under seal as of the date of this
Amendment, intending to be legally bound hereby.
By:
WITNE;Z.'5"3:/
Print Name: GI"+.W A. . ?J
. ~ C:;7J
Print Name: ~'^<99 A?.....!
(SEAL)
(SEAL)
Print Name: Kimberly L. Capuano
-4-
Form 17 A - Multistate Rev. 3/99
FORBEARANCE AGREEMENT
TIDS 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
EA, hj ('["
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.
Al!reement
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:
1.a. The principal amount outstanding under the Line of Credit (as defined in
Exhibit "A") 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 annwn 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 "A") 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 hereof is $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
armum. 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 "A") as of the date hereof is $\3,918.45. The interest rate payable on the principal
amount of the $88,000 Loan outstanidng at any time shall be thirteen percent (\3%) per
armum. 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" A") 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
armum. 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 earned 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 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. 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 formes) 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
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 reaffrrm, affrrm, 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 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
satisfaction 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 ofthe 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 collectibility, 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 (iii) 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 govern 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
Banle 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.
11. 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.
15. 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.
16. 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
unenforceability of any provision will not affect or impair the remaining provisions, which shall
remain in full force and effect.
12
21. 1bis 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 itselfto 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. 1bis 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 exeeution ofthis 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.
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 witbout 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%) of the 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 further 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
YEN J. CAPUANO
~H"-' )
ERL L. CAPUANO
date first written above.
ATTEST:
By:
By:
PNC BANK, NATIONAL ASSOCIATION
By:
~QL
.
-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 J. Capuano
Disclosure for Confession of Judgment for Steven J. 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 J. Capuano and Kimberly 1. Capuano
Disclosure for Confession of Judgment for Steven J. 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 J. 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, Ine., in the modified original principal amount of 5580,000, made as
of May 25, 1999; Obligor/Obligation Number 30944824-601138518 (the "Line ofCreditn)
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
Amendment to Loan Documents dated July 6, 2001, increasing line of credit amount to
5500,000
Subordination Agreement from Joseph C. Capuano dated July 6, 2001
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. 401-31-2187-053 and 40-31-2187-053A, Woodcraft
Drive, Mt. Holly Springs)
~8
COMMONWEALTH OF PENNSYLVANIA
. \ . .
COUNTY O( LL nl~'tllfLJ
: SS
On the 25'" day of September, 2003, before me personally came STEVEN J. CAPUANO,
who being duly sworn, 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 WI'INESS WHEREOF, I hereunto set
SEAL)
NO'rNIW.EAL
WENDY S. ettEn/.a, ..., NID
LDwer AllIn Twp., CwI.... CculIr
My CornmieIbi EJqllIw Mey 10, 2fXI1
My commission expires:
COMMONWEf'TH OF P~SYL ~ ANJA.
COUNTY OFlLl ntl~tliJltl
: SS
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
fu._~ili_oo""",, 1Al1~liOw-m~)
j MCJtfoIIIItoL &EM.
VIEJIP( S. CHI A ~NIc
u..MIn~~~ ClIIIIIJ
_0....,' . -, MlJtQ,2lIIl7
My Commission Expires:
COMMON(~ OF PENNSYLVANIA
COUNTY oLLu,'Llt{ {cULL
On the 25'" day of September, 2003, before me personally came JOSEPH V. CAPUANO
aRB. }l."0'IC\" P. CM'UANO, 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
l/
19
My Commission Expires:
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 Gointly 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
April1,2004.
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 pan 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 doc\lITlents 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
1
Ey..hr6,j 'rll
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 deftned 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 $1,785.41 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 to twenty percent (20%) per annum.
d. The principal amount outstanding under the Capuano Loan (as deftned in
Exhibit "A") as of the date hereofis $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 (19.10%) 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, "Without 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 $120,000 Loan and the
Capuano Loan as a result of prepayment of the principal amount outstanding thereunder
prior to the maturity dates of such Loans as provided in such Promissory Notes, and any and
all other sums due or payable under or in connection with the Ob[igations and/or the Loan
Documents, shall be due and payable in full, without notice or demand, or setoff,
counterclaim or deduction of any nature.
2
2. Simultaneously with execution of this Agreement, the Obligors shall (a) pay to Bank
a non-refundable forbearance fee of$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, Mt. Holly Springs, to include tax parcel no. 40-31-2187-052, 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 v;jth 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 Banlc
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' financial 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 connection 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 connection with the Obligations, the Loan
Documents 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 to 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 fmancial 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 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 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
remain 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 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
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. Tbis
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. Tne 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 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.
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
. s Agreement as of the
By:
o
B:
7
By:
B~y:f1. ~ ~
KIMBERLtL.CAl' ANO
PNC BANK, NATIONAL ASSOCIATION
By: r;,S'::J &' Q
ERIC D. :KlUMMEL
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 tenns 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
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 C0mpany 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:
p;
DA IE: May 4, 2004
9
EXHIBIT "A" TO MODIFICATION 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
Securiry 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 $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. Capuaao
(Tax parcel no. 40-31-2187-052, Woodcraft Drive, Mt. Holly Springs)
Line of Credit to Landis, Ine., 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
, .
,," .-.
, .'
Amendment to Loan Documents dated July 6, 2001, increasing line of credit amount to
S500;000 .
Subordination Agreement from Joseph C. Capuano dated July 6, 2001
Second Amendment to Loan Documents dated April 30, 2002, increasing line of credit
amount to S580,000
Loan to Steven J. Capuano and Kimberly L. Capuano in the original principal amount of
S120,000 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. 401-3 1-2 1 87-05J and 40-31-2187-053A, Woodcraft
Drive, Mt. Holly Springs)
11
PNC BANK, NATIONAL ASSOCIATION
4242 Carlisle Pike
CampHill,PA 17011
, E:mail: eric.krimmeJ@nncbank.com
Eric D. Krimmel
Vice President
(717) 730-2492 Tel
(717) 730-2373 Fax
, .
o PNCBAN<
Via Relrular and Cenified Mail
August 9, 2004
Steven J. Capuano, President
Landis, Inc.
Woodcraft Drive
P.O. Box ] 96
Mt. Holly Springs, P A 17065
Mr. Steven J. Capuano
Mrs. Kimberly L. Capuano
1229 Blossom Terrace
Boiling Springs, P A 17007
In reo Landis, Inc.
Obligor/Obligation Nos.: 30944824-601138518 (S580,000 Line of Credit Loan)
30944824-601147466 (SI20,000 Loan)
Steven J. and Kimberly L. Capuano
Obligor/Obligation Nos.: 30944834-601549745 (S120,000 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
Agreemen~ 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 I, 2004. As a result of this Event of Defaul~ 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 the Loans to
the default rates as follows:
Existing Interest Rate
Default Rate
Landis. Inc.
30944824-601138518
30944824-601147466
PNC Bank's prime rate + 1\.10
18.10%
PNC Bank's prime rate + 16.00%
20.00%
Steven 1. and Kimberlv L. Canuano
30944834-601549745 19.10%
20.00%
A m~mber of The PNC Financial Services Group
4242 Carlisle Pike Camp Hill Pennsylvania 17011
/
Lxhh,L "(!I'
. '
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 letler 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 shall 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.
Very truly yours,
PNC Bank, National Association
~Q~
Eric D. Krimmel
Vice President
Certified Mail Nos.:
7002 0460 0000 9754 8954
7002 0460 0000 9754 896 J
cc: Geoffi'ey S. Shuff, Esquire /"
? /60
DISCLOSUt1~ FOR CONFESSION O,F JlJu_MENT C c;
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PNC:BANK;. NATIOKAbQlSOCIATION
4242-'CARl:1SI:.E PIKE :~)'.~'
CAMP HIU;/PA 1'7001;.:aan'
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Borrower: LANDIS, INC. (TIN: 232443791)
WOODCRAFT DRIVE
MT. HOU. Y SPRINGS, PA 17065
Guarantor: STEVEN J. CAPUANO
1229 Bl.OSSOM TERRACE
BOILING SPRINGS, PA 17007
Lender:
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DISCLOSURE FOR CONFESSION ciF,-jiJoGlllieNt'~~
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, 19 en ,A GUARANTY FORlHtltlMTED AMOUNT.
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A. I UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOlLO PERMIT LENDER TO
ENTER JUDGMENT AGAINST ME IN COURT, AFTER A DEFAlLT ON THE GUARANTY, WITHOUT ADVANCE. NOTICE TO ME AND WITHOUT
OFFERING ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECl.JTING THE GUARANTY, BEING FIJ.LY
AWARE OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS
THAT LENDER MAY ASSERT AGAINST ME UNDER TIE GUARANTY, I AM KNOWINGLY, INTaLIGEIfT1.Y, AND VOLUNTARILY WAIVING
THESE RIGHTS, INQ.UDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY Of JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT
TO LENDER'S ENTERING JUDGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT
PROVISION.
.M
I AM EXECUTING, THIS ;)S DAY OF
May
B. I FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT 'TO ENTER .iuoGMENT AGAINST ME WITHOUT
ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN'TI1E.G(,iAl'lANrr,,~I..'SQ:CONTAINS LANGUAGE THAT
WOlLO PERMIT LENDER, AFTER ENTRY Of JUDGMENT, TO EXECUTE.ON THEJUD~,ME~J ~Y",~()R.E,~OSING UPON, ATTACHING,
LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, I~ F:1,JJ,::Qf.l;PAf,l.'I!A!.: pAYMENT OF THE JUDGMENT.
HOWEVER, LENDER MUST PROVIDE NOTICE TO ME UNDER APPLICABLE LAW ,IH'EXECm.:IN(i:<A/j"";CONFESSED JUDGMENT. IN
EXECUTING THE GUARANTY, BEING FIJ.LY AWARE OF MY RIGHTS TO ADVANcE NOTlCE AND A '~~ING AFTER JUDGMENT IS
ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, I AM KNOWINGLY, INTEU..IGENTI.Y AND VOLUNTARILY WAIVING THESE
RIGHTS, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S EXECUTING ONTHE,JUDGMEI'l1, !N.ANY MANNER PERMITTED BY
APPLICABLE STATE AND FEDERAL LAW.
C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING 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 CONNECTI(JN WITH THE GUARANTY.
4- 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 DISQ.OSURE WERE FILLED IN WHEN I
INITIALED AND SIGNED I 0 THAT I RECEIVED A COPY AT THE TIME OF SIGNING.
SIGNED AND SEALED BY THE UNDERSIGNED.
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PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO.
STEVEN 1. 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: (2./2.>...10"1
By:
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Eric Krimmel
Vice President
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PNC BANK, NATIONAL ASSOCIATION, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. O~ - 54
I
C;u'LCT~
STEVEN J. 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
SAlOIS, SHUFF, FLOWER & LIND SA Y
2109 Market Street, Camp Hill, PA 170\\
(717) 737-3405 (fax) 737-3407
Respectfully submitted,
SAlOIS, SHUFF, FLOWER & LINDSAY
Date: J} - j) - 6 'f
, v
By:
;Geo S., huff, Esquire
lsuPrem~ ciourt ID #24848
2109 Ma/ket Street
Camp Hill, PA 17011
(717) 737-3405
Attorney for Plaintiff
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Plaintiff
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. O~ - 5\,/ etc..>~L 'T~
: CONFESSION OF JUDGMENT
: CIVIL ACTION - LAW
STEVEN J. CAPUANO,
Defendant
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,
SAlOIS, SHUFF, FLOWER & LINDSAY
Date: tZ/3J (/I
By:
Geo~' . huf, Esquire
Supreme Court ~ #24848
2109 Market Street
Camp Hill, PA 17011
(717) 737-3405
Attorney for Plaintiff
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PNC BANK, NATIONAL ASSOCIATION, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. OS' - .s~
C/u'LlY~
STEVEN 1. 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 \70 II; 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: !2Jjofq
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PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
; NO. OS - .5~~ CU;[ ~V2-."l
: CONFESSION OF JUDGMENT
: CIVIL ACTION - LAW
STEVEN J. CAPUANO,
Defendant
NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION
REQUIRED BY 42 Pa. C.S.A. 92737.1 (Act 105 of2000)
To: Landis, Inc.
Pursuant to 42 Pa. C.S. S 2737.1. please talce notice that the Plaintiff in this matter has
entered a judgment by confession against you in the amount of$655,182.39.
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
malce 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, P A 17013
(717) 249-3166 or 1-800-990-9108
Corporations may be unable to represent themselves in court. If the 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. CS.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 allorney
fees as determined by the court.
Respectfully submitted,
SAIDIS, SHUFF, FLOWER & LIND SA Y
Date: December.30, 2004
By:
Ge ff. Esquire
Sup I #24848
2109 Market Street
Camp Hill, PA 17011
(717) 737-3405
Attorney for Plaintiff
Pennsvlvania Rule of Civil Procedure 2959 - Strikine: off Jude:ment
(a)(1) Relief from a judgment by confession shall be sought by petition. Except as
provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open
it must be asserted in a single petition. The petition may be filed in the county in which the
judgment was originally entered, in any county to which the judgment has been transferred or in
any other county in which the sheriff has received a writ of execution directed to the sheriff to
enforce the judgment.
(2) The ground that the waiver of the due process 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.I(c)(2) or Rule
2973.1 (c), the petition shall be filed within thirty days after such service. Unless the defendant
can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall
be denied.
(b) If the petition states prima facie grounds for relief the court shall issue a rule to show
cause and may grant a stay of proceedings. After being served with a copy of the petition the
plaintiff shall file an answer on or before the return day of the rule. The return day of the rule
shall be fixed by the court by local rule or special order.
(c) A party waives all defenses and objections which are not included in the petition
or answer.
(d) The petition and the rule to show cause and the answer shall be served as
provided in Rule 440.
(e) The court shall dispose of the rule on petition and answer, and on any testimony,
depositions, admissions and other evidence. The court for cause shown may stay proceedings on
the petition insofar as it seeks to open the judgment pending disposition of the application to
strike off the judgment. If evidence is produced which 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.
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PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. O~ - sy
CuJ~~
STEVEN J. CAPUANO,
Defendant
: CONFESSION OF JUDGMENT
: CIVIL ACTION - LAW
To: Steven J. Capuano, Defendant
You are hereby notified that on ,).=u ~ '-I ' 2095: judgment by confession was
entered against you in the sum of$655,182.39 in the above-captioned case.
DATE: I i--llOS
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
ofresidence:
Steven J. Capuano
1229 Blossom Terrace
Boiling Springs, P A 17007
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A, Steven J. 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 $655,182.39 del caso antes escrito.
Fecha: el dia de de 2004
Protonotario
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDlATAMENTE. 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, P A 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
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANIA-
CIVIL ACTION
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-54 CIVIL TERM
Plaintiff
v. : CONFESSION OF JUDGMENT
STEVEN J. CAPUANO,
Defendant : PREVIOUSLY ASSIGNED TO: N/ A
PRAECIPE
TO THE PROTHONOTARY:
Please mark the judgment entered in the above-captioned action satisfied.
Respectfully submitted,
SAIDIS, SHUFF, FLOWER & LINDSAY
Date: November 14,2005
By:
7
S. uff, Esquire
reme urt ID #24848
2\09 Market Street
Camp Hill, PA \7011
(717) 737-3405
Attorneys for Plaintiff, PNC Bank, National
Association
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