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HomeMy WebLinkAbout05-0057 v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA ; NO. DS - ~1 C;L.>',L~~ PNC BANK, NA TrONAL ASSOCIA TrON, Plaintiff LANDIS, INC., Defendant : CONFESSION OF JUDGMENT : CIVIL ACTION - LAW CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against Defendant as follows: Principal $112,137.01 Other authorized items: Interest to December 22, 2004 $ 1,414.84 Late Charges $ 92.12 Attorney's Commission $ 1 L355.19 TOTAL $124,999.16 plus additional interest, prepayment fees and costs from the date of the Complaint. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LIND SA Y Date: December 28, 2004 By: Ge Supr Court I #24848 2109 Market S eet Camp Hill, PA 17011 (717) 737-3405 Attorney for Plaintiff ~') ~ "-" c- ~ ~ !- ~ , . '~ ::~. t.-T:. -' -- ..- .' Q, ---1"" ~\-",:":. " 'iD -O~ -\) -:"9~.5::., -I' ~..; '~;h l,~.",.. (\' \::5 ",.J. -r?\ .:::c~ <-" <:P l PNC BANK, NATIONAL ASSOCIATION, Plaintiff v. : IN THE COURT OF COMMON PLEAS ; CUMBERLAND COUNTY, PENNSYLVANIA C ;uLL 't-'ttL~ : NO. O~ - S'1 LANDIS, INc., Defendant ; CONFESSION OF JUDGMENT : CIVIL ACTION - LAW COMPLAINT FOR CONFESSION OF JUDGMENT UNDER RULE 2951 1. The name and address of the Plaintiff is PNC Bank, National Association, 4242 Carlisle Pike, Camp Hill, Pennsylvania 17011. 2. The name and last known address of the Defendant is Landis, Inc., Woodcraft Drive, P.O. Box 186, Mount Holly Springs, Pennsylvania 17065. 3. Defendant Landis, Inc. ("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 Steven J. Capuano and Kimberly L. Capuano ("Debtors") under the Promissory Note dated September 14, 2000, in the original principal amount of One Hundred Twenty Thousand and 0011 00 Dollars ($120,000.00) (the "Note"), a true and correct photostatic reproduction ofthe original is attached hereto as Exhibit "B" and made part hereof. 5. Defendant and Debtors executed and delivered to Plaintiff a Forbearance Agreement dated September 25, 2003 (the "Forbearance Agreement") in connection with the Note. A copy of the Forbearance Agreement is attached hereto as Exhibit "c" and made a part hereof. 6. Defendant and Debtors 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 1 Amendment of Forbearance Agreement is attached hereto as Exhibit "D" and made a part hereof. 7. Debtors are in default of Debtors' obligations to make payment to Plaintiff as required in the Note, the Forbearance Agreement and the Modification and Amendment of Forbearance Agreement and Defendant is in default of Defendant's obligations to make payment to Plaintiff under the Guaranty, the Forbearance Agreement and the Modification and Amendment of Forbearance Agreement. 8. Plaintiff has demanded payment in full of all outstanding amounts as provided in the Note, the Forbearance Agreement, the Modification and Amendment of Forbearance Agreement and the Guaranty. A copy of Plaintiffs demand is attached hereto as Exhibit "E" and made a part hereof. 9. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 10. There has not been any assignment of the Guaranty, the Note, the Forbearance Agreement nor the Modification and Amendment of Forbearance Agreement. 11. Judgment has not been entered on the Guaranty, the Note, the Forbearance Agreement nor the Modification and Amendment of Forbearance Agreement in any jurisdiction. 12. An itemized computation of the amount due to Plaintiff by Defendant as a result of Defendant's default under the Guaranty, the Forbearance and the Modification and Amendment of Forbearance Agreement is as follows: a. Principal Interest to December 22, 2004 Late Charges Attorney's Commission b. c. d. TOTAL 2 $112,137.01 $ 1,414.84 $ 92.12 $ 11355.19 $124,999.16 13. Interest continues to accrue at the rate of 20%. WHEREFORE, Plaintiff, PNC Bank, National Association, demands judgment against Landis, Inc., Defendant, in the amount of One Hundred Twenty-Four Thousand Nine Hundred Ninety-Nine and 16/100 Dollars ($124,999.16), plus interest at the rate of 20%, through the date of payment, including on and after the date of entry of judgment on this Complaint, prepayment fees and costs. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY Date: December 28, 2004 By: ey S. huff, Esquire Suprem our! ID #24848 21 09 arket Street Camp Hill, PA 17011 (717) 737-3405 Attorney for Plaintiff 3 COMMERCIAL GUARANTY "Uoan Date; i @:M!it!lt4Y#@ :;:;;:::::::::~:::::::::::::::::::~::::;:::::~~:::;:::;~::::i::::.::~:::::::::::::::~;::::::::::::::::/:::: . ......................... and do not limit the applicability of this document to any articular loan or nem. Borrower: STEVEN J. CAPUANO (SSN: 168-43-2821) KIMBERLY L. CAPUANO (SSN: 16~148) 1229 BLOSSOM TERRACE BOILING SPRINGS, PA 17007 Guarantor: LANDIS, INC. WOODCRAFT DRIVE P.O. BOX 186 MOUNT HOLLY SRRINGS, PA 17065 Lender: PNC BANK, NATIONAL ASSOCIATION 4242 CARLISLE PIKE CAMP HILL, PA 17001-a874 Dh,bI "11 ,I AMOUNT OF GUARANTY. The amount 01 this Guaranty Is Unlimited. CONTINUING UNLIMITED GUARANTY. For good and valuable conslderallon, LANDIS, INC. ("Guarantor") absolutely and unconditionally guarantees and promises to pay to PNC BANK, NATIONAL ASSOCIATION ("Lender") or Its order, In legal tender 01 the United Slates 01 America, the Indebtedness (as that term is defined below) 01 STEVEN J. CAPUANO and KIMBERLY L. CAPUANO ("Borrower") ,or either or any of them, to Lender on the terms and conditions setlorth In this Guaranty. Under this Guaranty, the liability 01 Guarantor Is unlimited and the obligations 01 Guarantor are conllnulng. DEFINITIONS. The following words shall have the following meanings when used in this Guaranty: Borrower. The word "Borrower" means STEVEN J. CAPUANO and KIMBERLY L. CAPUANO. Guarantor. The word "Guarantor" means LANDIS. INC.. Guaranty. The word "Guaranty" means this Guaranty made by Guarantor for the benefit of Lender dated September 14. 2000. Indebtedness. The word "Indebtedness" is used in its most comprehensive sensa and means and includes any and all of Borrowers liabilities, obligations, debts, and indebtedness to Lender, now existing or hereinafter incurred or created, including, without limitation, all leans, advances, interest, costs, debts, overdraft indebtedness, credit card indebtedness, lease obligations, other obligations, and liabilities 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 undetermined; whether Borrower may be liable individually or jointly with others, or primarily or secondarily, or as guarantor or surety; whether recovery on the Indebtedness may be or may become barred or 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, or otherwise. Lender. The word "lender" means PNC BANK, NATIONAL ASSOCIATION, Its successors and assigns. Related Documents. The words "Related Documents" mean and inciude without limitation all promissory notes, credit agreements, toan 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. MAXIMUM LIABILITY. The maximum liability 01 Guarantor under this Guaranty shall be unlimited. 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 otherwise. of all Indebtedness. Accordingly. no payments made upon the Indebtedness will discharge or diminish the continuing liability of Guarantor in connection with any remaining portions of the Indebtedness or eny of the Indebtedness which subsequently arises or is thereafter incurred or contracted. DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity 01 any acceptance by Lender, or any nollee to Guarantor or to Borrower, and will continue in full force until all Indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied and all other obligations of Guarantor under this Guaranty shall have been performed in full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to Lender, by certified mail, at the address of Lender listed above or such other place as Lender may designate in writing. Written revocation of this Guaranty will apply only to advances or new Indebtedness created atter actual receipt by Lender of Guarantor's written revocation. For this purpose and without limitation, the term "new Indebtedness" does not include Indebtedness which at the time of notice of revocation is contingent, unliquidated, undetermined or not due and which later becomes absolute, liquidated, 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, including any extensions, renewals. substitutions or modifications of the Indebtedness. All renewals, extensions. substitutions, and modifications of the Indebtedness granted after Guarantor's revocation, are contemplated under this Guaranty and, specifically will not be considered to be new Indebtedness. This Guaranty shall bind the estate of Guarantor as to Indebtedness created bolh before and after the death or incapacity of Guarantor, regardless of Lender's actual notice of Guarantor's death. Subject to the foregoing, Guarantor's executor or administrator or other legal representative may terminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect. Release of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under thts Guaranty. A revocation received by Lender from anyone or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. It Is anticipated that fluctuations may .occur In the aggregate amount 01 Indebtedness covered by this Guaranty, and IllS speclllcally acknowledged and agreed by Guarantor that reductions In the amount 01 Indebtedness, even to zero dollars ($0.00), prior to wrlllen revocation 01 this Guaranty by Guarantor snall not constitute a termination at this Guaranty. this Guaranty Is binding upon Guarentor and Guarantor's hefrs, successors and assigns so long as any of the guaranteed Indebtedness remalns unpaid and even though the Indebtedness guaranteed may Irom time to time be zero dollars ($0.00). GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, eilher before or after any revocation hereol. without notice or demand and without lessening Guarantor's liability under this Guaranty, Irom time to time: (a) prior to revocallon as setlorth above, to make one or more addltlonm secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend additional credit to Borrower; (b) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the Ume for payment or other terms 01 the Indebtedness or any part 01 the Indebtedness, Including Increases and decreases 01 the rate 01 Interest on the Indebtedness; extensions may be repeated and may be lor longer than the original loan term; (c) to take and hold security lor the payment 01 this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fall or decide not to perfect, and release any such security, with or without the substitution of new collateral; (d) to release, substitute, agree not to sue, or deal with anyone or more of Borrower's sureties, endorsers, or other guarantors on any terms or In any manner Lender may choosej (e) to determine how, when and what application _.. __..__...t.. ...1'4 ,.,IUf't.. ..h.1I h_ ,,"_1'4. nn Ih_ Inrl,.htPrln...... In tn BDDlv such ~urttv Bnd direct the order or mBnner of sale thereof. 09-14-2000 Loan No COMMERCIAL GUARANTY (Continued) Page 2 Including without limitation, any nonjudicial sale permitted by the terms 01 the controlling securtty agreement or deed 01 trust, as Lender In Its discretion may determine; (g) to sell, transler, assign, or grant participations In all or any part 01 the Indebtedness; and (h) to assign or transler this Guaranty In whole or In part. GUARANTOR'S REPRESENT A TIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (a) no representations or agreements of any kind have been made to Guarantor which would limit or quality in any way the terms of this Guaranty; (b) this Guaranty is executed at Borrower's request and not at the request of Lender; (e) Guarantor has full power, right and authority to enter into this Guaranty; (d) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation at any law, regulation, court decree or order applicable to Guarantor; (e) Guarantor has not and will not, without the prior written consent of Lander, sell, !ease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets. or any interest therein; (1) upon Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, and all such financial information which currently has been, and all future financial information which will be provided to Lender is and will be true and correct in all material respects and fairly present the financial condition of Guarantor as of the dates the financial information is provided; (g) no material adverse change has occurred in Guarantor's financial condition since the date of the most recent financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's financial condition; (h) no litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or threatened; (i) Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and ti) Guarantor has established adequate means of obtaining trom Borrower on a continuing basis information regarding Borrower's financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or circumstances which might in any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower. GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (a) to continue lending money or to extend other credit to Borrower; (b) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the Indebtedness or of any nonpayment related to any collateral. or notice of any action or nonaction on the part of Borrower, Lender, any surety, endol'!isr, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations: (c) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor; (d) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (e) to give notice of the terms, time. and place of any public or private saie of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commerclai Code; (f) to pursue any other remedy Within Lender's power; or (g) to commit any act or omission of any kind. or at any time, with respect to any matter whatsoever. Guarantor also waives any and aU rights or defenses arising by rsason of (a) any "one action" or "anti-deficiency" law or any other law which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale; (b) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (c) any disability or other defense of Sorrower, of any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in full in legal tender, of the Indebtedness; (d) any right to claim discharge of the Indebtedness on the basis of unjustified Impairmenl of any collateral for Ihe Indebtedness; (e) any statute of limitations, if at any time any action or suit brought by Lender against Guarantor is commenced there is outstanding Indebtedness of Borrower 10 Lender which is not barred by any applicable statute of limitations; or (I) any defenses given to guarantors at law or in eqUity other than actual payment and performance of the Indebtedness. If payment is made by Borrower. whether voiuntarily or otherwise. or by any third party. on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to any 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 of this Guaranty. Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar right. whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both. GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the extent permitted by law or public 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 law, Lender shall have, with respect to Guarantor's obligations to Lender under this Guaranty and to the extent permitted by law, a contractual security interest in and a right of setoff against, and Guarantor hereby assigns, conveys, delivers, pledges, and transfers to Lender all of Guarantor's right, title and interest in and to, all deposits, moneys, securities and other property of Guarantor now or hereafter in the possession of or on deposit WIth Lender, whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding however all IRA. Keogh, and trust accounts. Every such security interest and right of setoff may be exercised without demand upon or notice to Guarantor. No security interest or right of setoff shall be deemed to have been waived by any act or conduct on the part of Lender or by any neglect to exercise such right of setoH or to enforce such security interest or by any delay in so doing. Every right of setoff and security interest shall continue in full force and effect until such right of setoff or security interest is specifically waived or released by an instrument in writing executed by Lender. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness Of Borrower to Lender, whether now existing or hereafter created, shall be prior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates Bny claim 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 insolvency and consequent liquidation of the assets of Borrower. through bankruptcy. by an assignment for the benefit of creditors. by voluntary liquidation. or otherwise. the assets of Borrower applicable to the payment of the claims of both Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the Indebtedness of Borrower te Lender. Guarantor does hereby assign to Lender all claims which it may have or acquire against Borrower or against any assignee or trustee in bankruptcy of Borrower; provided however, that such assignment shall be effective only for the purpose of assuring to Lender full payment in 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 shall be marked with a lagend that the same are subject to this Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender hereby is authorized, in the name of Guarantor, from time to time to execute and file financing statements and continuation statements and to execu~e such other documents and to take such other actions as Lender deems necessary or appropriate to parleet, preserve and enforce its rights under thiS Guaranty. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty: Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the p~_rty 09-',4-2000 Loan No COMMERCIAL GUARANTY (Continued) Page 3 or ,parties sought to be charged or bound by the alteration or amendment. Applicable Law. This Guaranty has been delivered to Lender and accepted by Lander in the Commonwealth of Pennsylvania. If there is a lawsuit. Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of CUMBERLAND County, Commonwealth of Pennsylvania. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Guarantor against the other. This Guaranty shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Attorneys' Feesj Expenses. Guarantor agrees to pay upon demand all of Lender's costs and expenses, including attorneys' fees and lender's legal expenses, incurred in connection with the enforcement af this Guaranty. Lender may pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses whether or not there Is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (and including efforts 10 modify or vacate any automatic stay or injunction), appeais. and any anticipated post-judgment coilection services. Guarantor aiso shall pay ail court costs and such additional fees as may be directed by the court. Notices. All notices required to be given by either party to the other under this Guaranty shall be in writing, may be sent by teletacsimile (unless otherNise required by law), and, except for revocation notices by Guarantor, shall be effective when actually delivered or when deposited with a nationally recognized overnight courier, or when deposited in the United States mail. first ciass postage prepaid. addressed to the party to whom the notice is to be given at the address shown above or to such other addresses as either party may designate to the other in writing. All revocation notices by Guarantor shaU be in writing and shaH be effective oniy upon delivery to Lender as provided above in the section titled "DURATION OF GUARANTY." If there is more than one Guarantor. notice to any Guarantor will constitute notice to all Guarantors. For notice purposes, Guarantor agrees to keep Lender informed at all times at Guarantors current address. Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectiveiy shall mean aU and anyone or more of them. The words "Guarantor," "Borrower," and "Lender" include the heirs, successors, assigns, and transferees of each of them. Caption headings in this Guaranty are for convenience purposes oniy and are not to be used to interpret or define the provisions of this Guaranty. If a court of competent jurisdiction 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 not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors. partners. or agents acting or purporting to act on their behalf, and any Indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Waiver. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any nght shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver of Lender's right otherNise to demand strict compliance 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 Lender's rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Guaranty, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. LIMITED RECOURSE AS TO NON-APPLICANT SPOUSE. Notwithstanding anything contained herein to the contrary, it 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 "appiicant for credir for purposes of such regulation (the "Non-Applicant Spouse") shall be personally liable under this Guaranty only with respect to assets heid jointly as of the date hereof or hereafter acquired, and the lien of any judgment, order or other relief against the Non-Applicant Spouse shall be limited thereto. Nothing herein, however, shall limit the Lender's rights against any person, firm or entity other than the Non-Applicant Spouse. AUTHORIZA TrONS. Guarantor agrees that all powers of attorney or authorizations granted to Lender by Guarantor under the terms of this agreement are irrevocable and that Lender may exercise the authorizations solely for Lender's benefit and not for Guarantor's benefit. Guarantor acknowledges and agrees that the provisions of TItle 20, Pennsylvania Consolidated Statutes, Section 5501 et seq. (specificaiiy inciuding Act 39 of 1999) shall not be applicable to any such authorization, CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES ANO EMPOWERS ANY ATTORNEY 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 ANY TERM. CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY, ALL ACCRUED INTEREST. LATE CHARGES. AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEBTEDNESS TOGETHER WITH INTEREST ON SUCH AMOUNTS, TOGETHER WITH COSTS OF SUIT. AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAIO 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; ANO 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 ANY EXERCISE OF THAT AUTHORITY, 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 ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLE LAW WITH RESPECT TO EXECUTION OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTEO BY INDEPENOENT LEGAL COUNSEL. EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'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 BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED SEPTEMBER 14, 2000. THIS GUARANTY HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. GUARANTOR: 09-14-2000 Loan No COMMERCIAL GUARANTY (Continued) Page 4 ~w"~,,~%!i!ittiiWi!~m%\~m:n::tiiii1t;;@{:Wi~~) CORPORATE ACKNOWLEDGMENT STATE OF COUNTY OF I )SS I On this, the day of , 20~ before me , the undersigned Notary Public, personally appeered STEVEN J. CAPUANO who acknowledged himsei' or hersell to be the PRESIDENT of LANDIS, INC.. a corporation, and that he or she as such PRESIDENT, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself or herseif as PRESIDENT. . In witness whereof, I hereunto set my hand and official seal. Notary Public in and for the State of lASER PAO. Reg. U.S. Pal. & T.M. Oft., Vet'. 3.29 (C)CQncenlrex 2000 AU rlghls reserved. {PA-E20A CAP1.l.N C29.0VLI PROMISSORY NOTE ........................... ........................... ........................... ...-.......".............. .....................,.... .......................................................... ......................................................... ........................................................ :@Xei'mi:iP!!!F m:m:f'U!:!.gD!it~m ',iX'Maturi!Ypn :YdF$:I2(toOOioo@iiii'di4't4#2000 i 1io94i5#2l:fiU References in the shaded area are for Lende~s use only and do not limit the applicability of this document to any :I#:l.o.~t!iH i@@iA~pp6\W Borrower: STEVEN J. CAPUANO (SSN: 168-4&-2821) KIMBERLY L. CAPUANO (SSN: 16&-04-0148) 1229 BLOSSOM TERRACE BOILING SPRINGS, PA 17007 Lender: PNC BANK, NATIONAL ASSOCIATION 4242 CARLISLE PIKE CAMP HILL, PA 17001-a874 Principal Amount: $120,000.00 Interest Rate: 9.000% Oate of Note: September 14, 2000 PROMISE TO PAY. STEVEN J. CAPUANO and KIMBERLY L. CAPUANO ("Borrower") promise to pay to PNC BANK, NATIONAL ASSOCIATION ("Lender"), or order, In lawfUl money 01 the United States 01 America, the prtnclpal amount of One Hundred Twenty Thousand & 00/100 Dollars ($120,000.00), together with Interest at the rate of 9.000% per annum on the unpaid principal balance Irom September 14, 2000, unlll paid In lull. PAYMENT. Borrower will pay this loan In 119 regular payments 01 $1,089.87 each and one Irregular last payment estimated at $18,653.18. Borrower's first payment Is due October 15, 2000, and all subsequent payments are due on the same day 01 each month after that. Borrower's final payment due September 15, 2010, will be lor all prtncipal and all accrued Interest not yet paid. Payments Include prtnclpal and Interest. The annual interest rate for this Note is computed on a 365/360 basis; that is. by applying the ratio of the annual Interest rate over a year of 360 days, multiplied by the outstanding principal balance. multiplied by the actual number of days the principal baiance is outstanding. Borrower will pay Lender at Lende~s address shown above or at such other piace as Lender may designate in writing. Unless otherwise agreed or required by applicable law, payments will be applied first to accrued unpaid interest, then to principal, and any remaining amount to any unpaid collection costs and late charges. PREPAYMENT PENALTY. Upon prepayment 01 this Note, Lender Is entitled to the lollowlng prepayment penalty: On any business day, upon payment of all accrued unpaid Interest on this Note, and upon five (5) business day's prior wrttten notice to Lender, the Borrower may prepay all or part 01 the outstanding principal 01 this Note; provided, however, that the Borrower also agrees to pay Lender as compensation lor the cost of advancing fixed rate lunds, an amount equal to the Cost 01 Prepayment. "Cost of Prepayment.. means an amount equal to the present value, " positive, 01 the product 01 (a) the dlllerence between (I) the yield, on the date 01 this Note, 01 a U. S. Treasury obllgallon with a maturity similar to this Note minus (II) the yield on the prepayment date, 01 a U. S. Treasury obligation with a maturity similar to the remaining maturity of this Note and (b) the prtnclpal amount to be prepaid, and (c) the number 01 years, Including fractional years, from the prepayment date to the maturtty date 01 this Note. The yield on any U. S. Treasury obligation shall be determined by reference to Federal Reserve Statistical Release H.15(519) "Selected Interest Rates". For purposes of making present value calculations, the yield to maturtty 01 a similar maturity U. S. Treasury obtlgatlon on the prepayment date shall be deemed the discount rate. The Cost of Prepayment shall also apply to any payments made after acceleration of the maturtty of this Note. Except for the foregoing, Borrower may pay all or a portion of the amount awed 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 under the payment schedule. Rather, they will reduce the principal balance due and may result in Borrower making fewer payments. LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 5.000% 01 the unpaid portion of the regularly scheduled payment or $100.00, whichever Is less. DEFAULT. Borrower will be in default if any of the following happens: <a) Borrower fails to make any payment when due. (b) Borrower breaks any promise Borrower has made to Lender, or Borrower falls 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 loan Borrower has with Lender. (c) Borrower defaults under any loan, extenSion of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially aHeet any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the Related Documents. (d) Any representation or statement made or furnished to Lender by Borrower or on Borrower's behalf is false or misleading in any material respect either now or at the time made or furnished. (e) Borrower dies or becomes insolvent, a receiver is appointed for any part at Borrower's property, Borrower makes an assignment for the benefit of creditors, or any proceeding is commenced either by Borrower or against Borrower under any bankruptcy or insolvency laws. (f) Any creditor tries to take any of Borrower's property on or in which Lender has a lien or security interest. This includes a garnishment of any of Borrowe~s accounts with Lender. (g) Any of the events 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 Ihe prospect of payment or performance of the Indebtedness is impaired. LENDER'S RIGHTS. Upon default, Lender may. after giving such notices as required by applicable lew, declare the entire unpaid principal balance on this Note and all accrued unpaid interest immediately due, and then Sorrower will pay that amount. Upon default, including failure to pay upon final maturity, Lender, at its option, may also, if permitted under applicable law, increase the interest rate on this Note 5.000 percentage paints. The interest rate will not exceed the maximum rate permitted by applicable law. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower also will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees 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 pcst-judgment collection services. If not prohibited by applicable law, Borrower also will pay any court costs. in addition to all other sums provided by law. If judgment is entered in connection with this Note, interest will continue to accrue on this Note after judgment at the existing interest rate provided for in Ihls Note. 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 to the Jurtsdlctlon of the courts 01 CUMBERLAND County, the Commonwealth of Pennsylvania. Lender and Borrower hereby waive the rtght to any Jury trtal In any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. This Hote shaJl be governed by and construed In accordance with the laws of the Commonwealth 01 Pennsylvania. RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest In. and hereby assigns. conveys. delivers. pledges. and transfers to Lender aU Borrower's right, title and interest in and to, Borrower's accounts with Lender (whether checking, savings, or some other account), including without limitation aU 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 at 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 aU such accounts. COLLATERAL. This Note is secured by a Mortgage dated September 14. 2000. to Lender on real property located in CUMBERLANO County, Commonwealth of Pennsylvania, aU the terms and conditions of which are hereby incorporated and made a part of this Note. F1NANCtAlINFORMA rlOH PROVISION. Borrower agrees to deliver any financial and ather business information concerning Borrower that Lender may request from time to time, such as annual and interim finantiial s,tements (aU of which shall be prepared in accordance with generally accepted accounting principles) and federal income tax returns. C'f.nl b. (<'13/1 09-14-2000 Loan NCl PROMISSORY NOTE (Continued) Page 2 YEAR 02000 COMPLIANCE. Borrower has reviewed the areas within its business and operations which could be aversENY affected by, and has deveioped or Is developing a program to address on a timeiy basis the risk that certain computer applications used by Borrower may be unable to recognize and perform properiy date-sensitive functions invoiving dates prior to and arier December 31, 1999 (the "Year 2000 Problem;. The Year 2000 Problem will not result. and is not reasonably expected to result, in any matertal adverse effect on the business, properties, assets, financial condition, results of operations or prospects of Borrower, or the ability of Borrower to duly and punctually payor perform its obligations hereunder and under the Related Dccuments. AUTHORIZATIONS. Borrower agrees that all powers Of ariorney or authorizations granted to Lender by Borrower under the terms of this agreement are irrevocable and that Lender may exercise the authorizations solely for Lender's benefit and not for Borrowers benefit. Borrower acknowledges and agrees that the provisions of liUe 20. Pennsylvania Consoiidated Statutes, Section 5601 et seq. (specifically including Act 39 of 1999) shall not be applicable to any such authorization. ADDITIONAL PROVISION. This Note is issued pursuant to a Letter Agreement dated August 24, 2000, and the other documents referred to therein. the terms 01 which are incorporated herein by reference. ADDITIONAL PRINCIPAL PAYMENTS. Notwithstanding anything contained herein to the contrary, Borrower may prepay this Note, without penalty, !rom internally generated lunds at an additional $6000.00 per year. Any prepayment arising out of or reiating to the refinance of indebtedness with another financial institution shall be deemed a prepayment and will be subject to the prepayment penalty stated above. 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 otherv.tise expressly stated in writing, 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 and for any length of time) this loan, or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parnes also agree that Lender may modlty this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and severaL If any portion of this Note is tor any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY liME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE. ANO WITH OR WITHOUT 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 WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION. BUT IN ANY EVENT NOT LESS THAN FIVE HUNORED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE iMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY. BUT SHALL CONTINUE FROM TIME TO liME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNOER 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 ANDIOR HEARING REQUIRED UNDER APPLICABLE LAW WITH RESPECT TO EXECUTON OF THE JUDGMENT. AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS NOTE, EACH BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE AND THE NOTICE TO COSIGNER SET FORTH BELOW. EACH BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE. AND SEALED BY THE UNDERSIGNED. ........H~................... ........~...m.... .............m.......... ............ ... ..... .... ..... x........... . ...... .................... .' ........ ::::::::::::::::::::-"-..:..::::::::::>.....:'...':..,.,:.::::::'::::':'::::::::::::.:-""'-"-'.'.:.',''--:-:.:'''':::::.:-:-:.:::::.;;;; KI ER L.CAPUAN .:....-',;,:.. '.-:-", ..yI... (SEAL) . BORROWER: x NOTICE TO COSIGNER You re Ing asked to guarantee this debt. Think carefully before you do. "the borrower doesn't pay the debt, you will have to. Be sure you c afford to pay II you have to, and that you want to accept this responsibility. You may have to pay up to the lull amount 01 the debt If the borrower does not pay. You may also have to pay late lees or collection costs, which Increase this amount. The lender can collect this debt from you without flrst trying to collect from the borrower. The lender can use the same collection methods against you that can be used against the borrower, such as suing you, garnishing your wages, etc. If this debt Is ever In default, thatlact may become a part of YOUR credit record. This notice Is not the contract that makes you liable lor the debt. Fixed Rate. Balloon, lASER PRO, Reg. U.S. Pat. " T.M. Cff., Ver. 3.29... (C) Concentrex 2000 All rIghts reserved, {PA~020 E3.29 CAPU.N C29.01l1.] FORBEARANCE AGREEMENT Tms 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 I of this Agreement and in Exhibit "A" to this Agreement (collectively, the "Obligations"), the collateral and security for which (collectively, the "Collatera1") 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 4hl bl! ('{III 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!J'eement 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 annum at all times equal to six percent (6%) over the Index (as defined in the Promissory Note for the Line of Credit). The Company shall make monthly payments of principal and interest on the Line of Credit in the amount of $5,578.89 on the date of each month as provided in the Promissory Note for the Line of Credit. 2 b. The principal amount outstanding under the $306,500 Loan (as defined in Exhibit nAn) as of the date hereof is $1,462.71. The Company shall make payment in full of the $306,500 Loan on October 4, 2003. c. The principal amount outstanding under the $120,000 Loan (as defined in Exhibit nAn) 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 annum. The Company shaJ1 make monthly payments of principal and interest on the $120,000 Loan in the amount of $1,246.82 on the date of each month as provided in the Promissory Note for the $120,000 Loan. d. The principal amount outstanding under the $88,000 Loan (as defined in Exhibit "An) as of the date hereof is $13,918.45. The interest rate payable on the principal amount of the $88,000 Loan outstanidng at any time shall be thirteen percent (13%) per annum. The Company shall make monthly payments of principal and interest on the $88,000 Loan in the amount of $1,785.41 on the date of each month as provided in the Promissory Note for the $88,000 Loan. e. The principal amount outstanding under the Capuano Loan (as defined in Exhibit nAn) as of the date hereof is $112,898.21. The interest rate payable on the principal amount of the Capuano Loan outstanding at any time shall be fourteen percent (14%) per annum. The Capuanos shall make monthly payments of principal and interest on the Capuano Loan in the amount of $1,393.66 on the date of each month as provided in the Promissory Note for the Capuano Loan. f. On April 1, 2004, the entire outstanding amount of the Obligations, including all of the outstanding principal, all of the accrued and unpaid interest, all of the 3 prepayment charges that are payable under the Promissory Notes for the $88,000 Loan, the $120,000 Loan and the Capuano Loan as a result of prepayment of the principal amount outstanding thereunder prior to the maturity dates of such Loans as provided in such Promissory Notes, and any and all other sums due or payable under or in connection with the Obligations and/or the Loan Documents, shall be due and payable in full, without notice or demand, or setoff, counterclaim Dr 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 elate 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 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 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. 1bis 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 of the right to trial 6 by jury or venue or forum selection contained in any of the Loan Documents. Nothing contained in this Agreement waives or should be construed as a waiver of any of the Bank's rights and remedies under the Loan Documents, or at law or in equity. b. The Obligors hereby acknowledge, agree and affirm that (i) the Obligors are absolutely and unconditionally liable to the Bank under any guaranty agreement executed in favor of the Bank by any of the Obligors (each, a "Guaranty"), which Guaranty is a guarantee of payment, and not merely 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) detennined 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, role, ordinance, requirement, restriction, covenant, order or decree. b. None of the Collateral has been or will at any time be used in violation of any law, regulation, ordinance, requirement, restriction, covenant, order or decree which may result in forfeiture of any of the Collateral. c. The Company is not entitled to and shall not make, and none of the Obligors are entitled to or shall receive, any payment of any debt or obligation owed by the Company to any of the Obligors, except payments of rent for the Company's occupancy of the business premises. The Company shall not make any payment of any Subordinated Debt as defined and otherwise provided in the Subordination Agreement dated July 6, 2001, among Joseph V. Capuano, the Company and the Bank. The Company shall not pay any dividend or make any other distribution on the Company's stock except in compliance with the Loan Docwnents. d. The Obligors shall furnish or cause to be furnished to the Bank, not later than forty- five (45) days after the end of each of the Company's fiscal quarters, financial statements for each such quarter, including detailed schedules of accounts receivable aging and accounts payable aging, all in form and content satisfactory to the Bank. In addition, the Obligors will furnish or cause to be furnished to the Bank such information and statements, lists of assets and liabilities, inventory schedules, 8 budgets, forecasts, tax returns, and other reports with respect to the Company and the Company's business operations, and with respect to the Capuanos' financial condition, as Bank may request from time to time. e. In addition to all liens upon and rights of setoff against the money, securities or other property of any of the Obligors given to the Bank by law, the Bank shall have, with respect to the Obligors' obligations to the Bank under the Loan Documents and this Agreement and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and the Obligors' hereby assign, convey, deliver, pledge and transfer to the Bank all of the Obligors' right, title and interest in and to, all deposits, moneys, securities and other property of any of the Obligors now or hereafter in the possession of or on deposit with, or in transit to, the Bank whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding, however, all IRA, Keogh, and trust accounts to the extent excluded by law. Every such security interest and right of setoff may be exercised without demand upon or notice to such of the Obligors. Every such right of setoff shall be deemed to have been exercised hereunder without any action of the Bank, although the Bank may enter such setoff on its books and records at a later time. II. The occurrence of anyone or more of the following is a default under this Agreement: a The Obligors' failure to make any payment required \lllder the provisions of any of the Loan Documents Dr 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 financial 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 docwnents. 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 Docwnents,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 Docwnents, 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 fonn 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. ~2 21. This Agreement shall be interpreted and constrUed under the laws of the Commonwealth of Pennsylvania The Obligors shall only bring an action in, and the Obligors otherwise consent to the jurisdiction of, the Court of Common Pleas of Cumberland County, Pennsylvania, and the United States District Court for the Middle District of Pennsylvania, over all matters arising from or related to the Loan Documents and/or this Agreement. The Obligors and the Bank agree that any dispute or controversy between Dr among the Obligors or any of them and Bank would not lend itself to resolution or determination in trial by jury. Therefore, the Obligon and Bank each hereby voluntarily, knowingly and undentandingly waives the right to trial by jury in any action or proceeding with respect to any dispute or controveny which may arise between or among them under or in connection with the Obligations, the Loan Documents or this Agreement and the subject matter of this Agreement. 22. This Agreement shall inure to the benefit of Bank, its successors and assigns, and all obligations of the Company and the Capuanos shall bind all of the Obligors and their respective heirs, personal representatives, successors and assigns. 23. The Obligon each acknowledges and agrees that each of the Obligon has had the opportunity to consult with an attorney or attorneys prior to exeeution of this Agreement, and the Obligon have consulted with an attorney or attorneys, or have waived and hereby acknowledge the waiver of the opportunity to do so, and the Obligon have executed this Agreement voluntarily, knowingly and undentandingly. 24. The Obligon hereby voluntarily, intelligently and knowingly empower the Prothonotary or any attorney of any court of record to appear for the Obligon and to confess judgment for all amounts due or payable under this Agreement, with or without filing a complaint, including without limitation the entire balance of principal due or payable, late l3 charges, interest, expenses and fees, costs of suit and attorneys' fees equal to ten percent (10%) ofthe total of all such amounts, and the Obligors hereby release all errors or defects in any such action and the entry of any such judgment, and waive all laws exempting real or personal property from execution. 25. This Agreement may be executed in any munber 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 date first written above. ATTEST: /) . By ;;; ictcJ SECRET Y / , By: PNC BANK, NATIONAL ASSOCIATION By:~Q~ -Q 14 ACKNOWLEDGMENT AND CONSENT The undersigned, JOSEPH v" CAPUANO and NANCY P. CAPUANO, jointly and severally, hereby consent to the execution of this Agreement by LANDIS, INC., and STEVEN J. CAPUANO and KIMBERLY L. CAPUANO, and acknowledge and agree to the terms and conditions of this Agreement, and the undersigned hereby reaffirm, ratify, confirm and agree that all of the provisions of any of the Loan Documents to which either of the undersigned is a party, or both of the undersigned are parties, are unchanged and in full force and effect, enforceable by the Bank as provided therein, or at law or in equity. Without limiting the general nature and effect of the preceding paragraph, the undersigned specifically acknowledge that this Agreement and this Acknowledgment and Consent constitute written notice from the Bank of the occurrence of an Event of Default under the Loan Documents as provided in Section 3 of the Subordination Agreement dated July 6, 2001, among Joseph V. Capuano, the Company and the Bank, and therefore that the Company is no longer entitled to and shall not make, and Joseph V. Capuano is no longer entitled to and shall not receive, payments of the Subordinated Debt as defined and otherwise provided in such Subordination Agreement. WITNESS: By: vvJJ 7 By: l / IC ~\j/~~ J'S .. V.C UANO / By: By: NANCY P. CAPUANO 16 EXlllBIT "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, Ine., in the original principal amount of $88,000, made as oC 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 1. Capuano Loan to Landis, Inc., in tbe original principal amount oC $306,500, made as oC 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 1. Capuano and Kimberly L. Capuano Subordination Agreement of Joseph V. Capuano Loan to Landis, Ine., in the original principal amount oC $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 1. Capuano Open-End Mortgage from Joseph V. Capuano and Nancy P. Capuano (Tax parcel no. 40-31-2187-052, Woodcraft Drive, Mt. Holly Springs) 17 Line of Credit to Landis, Inc., in the modified original principal amount of 5580,000, made as of May 25,1999; Obligor/Obligation Number 30944824-601138518 (the "Line of Credit") Promissory Note in the original principal amount of$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 $500,000 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 4O-31-2187-053A, Woodcraft Drive, Mt. Holly Springs) 18 COMMONWEALTH OF PENNSYLVANIA COUNTY O( ill nllttLrtJ : SS On the 25th day of September, 2003, before me personally came STEVEN J. CAPUANO, who being duly sworn, did acknowledge himselftD 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 pwposes therein contained. In testimony whereof, I have hereunto subscribed my name. IN WITNESS WHEREOF, I hereunto set NO'TNlW. SEM. WEJIlYS,CtlF r~.=NIIa \.Mr AllIn Twp., CUl,. CalrtIr My CorMlIesbi ExpiNI Mey 10, 'l(Ih My commission expires: COMMON~TH OF PENNSYLVAIfM COUNTY OFLL l nd~tltLlIA : SS On the 25th 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 JCknOWledged that they executed the same for tho pmpood=inoo.-I. 1AJi I~\i OwmQ,Ll N~.,_,'LL1.' v I<<JTAIML SEM. VI13IJ'{ S. QC I .A. ::zPlMc u.-Mln~~!, r1I ... c:..f..' . Of ""'0. My Commission Expires: COMMONr~ OF PENNSYLVANIA COUNTY OLLUld t{ (a.ALL On the 25th day of September, 2003, before me personally came JOSEPH V. CAPUANO QRQ N.'\.."lCY P. CM'UM10, 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/ ,. otary Public NCTMW..8EM. WEfIJV a. a EIE 10,:7 Nile ~MlnTwp..o..... Ccuty My c..,....... EIphI MIJ '0, 'l/1.f1 ...... My Commission Expires: 19 MODIFICATION AND AMENDMENT OF FORBEARANCE AGREEMENT THIS AGREEMENT is made as of May 4, 2004, by and among PNC BANK, NATIONAL ASSOCIATION ("Bank"), and LANDIS, INC. (the "Company"), and STEVEN J. CAPUANO and KIMBERLY L. CAPUANO Uointly and severally, the "Capuanos"), with the acknowledgment and consent of JOSEPH V. CAPUANO. RECITALS R-1. The Company and the Capuanos are referred to in this Agreement jointly and severally as the "Obligors". The Obligors executed and delivered to the Bank a Forbearance Agreement dated September 25,2003 (the "Forbearance Agreement"). R-2. The term of the Forbearance Agreement expired, and the indebtedness owed by the Obligors to the Bank as provided in the Forbearance Agreement was due and payable in full, on April 1,2004. 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 documents 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 n An) 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 shaH 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 (I I. 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 L'l-h,b,l ('Dr, 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 Asrreement, 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 amlllln 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 S120,000 Loan may be increased to twenty percent (20%) per annum. c. The principal amount outstanding under the S88,000 Loan (as defined in Exhibit "A") as of the date hereof is $3,922.43. The interest rate payable on the principal amount of the $88,000 Loan outstanding at any time shall be eighteen and one-tenths percent (18.10%) per annum. The Company shall make monthly payments of principal and interest on the $88,000 Loan in the amount of $1,785 Al 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 defined in Exhibit "A") as of the date hereof is $112,755.66. The interest rate payable on the principal amount of the Capuano Loan outstanding at any time shall be nineteen and one-tenths percent (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 Obligations and/or the Loan Documents, shall be due and payable in full, without notice or demand, or setotI; 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 $1 ,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 40-3 1-2 1 87-053A, Woodcraft Drive, Mt. Holly Springs, to include tax parcel no. 40-31-2]87-052, 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 pan 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 with 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 quaner, including detailed schedules of accounts receivable aging and accounts payable aging, all in form and content satisfactory to the Bank. 3 b. Not later than thirty (30) days after the end of each month, financial statements for each such month, including detailed schedules of accounts receivable aging, all in form and content satisfactory to the Bank. c. Not later than April 30, 2004, a copy of the Capuanos' signed federal income tax return, as filed, including all schedules, statements, forms and attachments. d. In addition, the Obligors will furnish or cause to be furnished to the Bank such information and statements, lists of assets and liabilities, inventory schedules, budgets, forecasts, tax returns, and other reports with respect to the Company and the Company's business operations, and with respect to the Capuanos' fmancial condition, as Bank may request from time to time. 7. a. The Obligors hereby reaffirm, affirm, ratify and confirm the Obligors' absolute and unconditional liability to make all payments and to observe and perform all of the duties, obligations and other agreements of the Obligors under or in connection with the Obligations, the Loan Docwnents and the Forbearance Agreement, subject only to any express modification contained in this Agreement. Except as expressly set fonh 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 \\lith respect to any of the Obligors' obligations and agreements under or in connection \\lith the Obligations, the Loan Doctl.'Uents 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 Docwnents 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 Docwnents 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 Docwnents and the Forbearance Agreement, (ii) the Obligors' liability to the Bank under any such Guaranty and with respect to the Obligations, the Loan Docwnents, 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 Docwnents, the Forbearance Agreement or this Agreement, or any such Guaranty. c. All of the provisions of the Loan Docwnents 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' pan to be observed or performed under this Agreement, or under any of the Loan Documents (except with respect to compliance with the financial covenants as provided in Section 8 and with respect to the annual clean-up provision for the Line of Credit), or the Forbearance Agreement on or after the date of this Agreement; c. If any representation, warranty, or financial statement or presentation of any of the Obligors at any time made to Bank in connection with the Obligations is detennined 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 vvill continue as collateral and security for the entire amount of the Obligations until all of the Obligations are paid in fuji, 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 SI20,OOO Loan, the Line of Credit andlor 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. This provision will survive any expiration or termination of this Agreement, whether by payment in full of the Obligations and all other sums due lU1der or in connection therewith, or otherwise. 11. Tne Obligors will execute andlor 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 01' proceeding with respect to any dispute 01' controversy which may arise between 01' among them under 01' in connection with the Obligations, the Loan Documents, the Forbearance Agreement 01' this Agreement and the subject matter ofthis 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 01' 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 nolllIy acknowledgements for the Obligors. However, the Obligors funher 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. By: . s Agreement as of the IN WITNESS date first written a o 7 By: BrY:d (,~.. ~ KIMBERLYL.CAP ANO PNC BANK, NATIONAL ASSOCIATION By: rd:J K-' 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 wrinen notice from the Bank of the occurrence of an Event of Default under the Loan Documents as provided in Section 3 of the Subordination Agreement dated July 6, 2001, among Joseph V. Capuano, the Company and the Bank, and therefore that the C.:>mpany is no longer entitled to and shall not make, and Joseph V. Capuano is no longer entitled to and shall not receive, payments of the Subordinated Debt as defined and otherwise provided in such Subordination Agreement. By: DA IE: May 4, 2004 9 EXHIBIT "A" TO 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 Security Agreement (Motor Vehicles) Commercial Security Agreement Commercial Guaranty of Steven J. Capuano Disclosure for Confession of Judgment for Steven J. Capuano Loan to Landis, Inc., in the original principal amount of $120,000, made as of April 26, 1999; Obligor/Obligation Number 3094824-601147466 (the "$120,000 Loan") Corporate Resolution to Borrow Promissory Note Disclosure for Confession of Judgment Business Loan Agreement Commercial Guaranty of Steven J. Capuano Disclosure for Confession of Judgment for Steven J. Capuano Open-End Mortgage from Joseph V. Capuano and Nancy P. CapuaBo (Tax parcel no. 40-31-2187-052, Woodcraft Drive, Mt Holly Springs) Line of Credit to Landis, Inc., in the modified original principal amount of $580,000, made as of May 25,1999; Obligor/Obligation Number 30944824-601138518 (the "Line of Credit") Promissory Note in the original principal amount of$125,000 Business Loan Agreement Commercial Security Agreement Commercial Guaranty of Steven J. Capuano Disclosure for Confession of Judgment 10 ~- '.... Amendment to Loan Documents dated July 6, 2001, increasing line of credit amount to $500,000 . Subordination Agreement from Joseph C. Capuano dated July 6, 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) 11 PNC BANK, NATIONAL ASSOCIATION 4242 Carlisle Pike CampHiIl,PA 17011 E-mail: eric.krimmeli1iloncbank.com Eric D. Krimmel Vice President (717)730-2492 Tel (717) 730-2373 Fax . . o PNCBAN< . Via Re2Ular and Certified Mail August 9, 2004 Steven J. Capuano, President Landis, Inc. Woodcraft Drive P.O. Box 196 Mt Holly Springs, P A 17065 Mr. Steven J. Capuano Mrs. Kimberly L. Capuano 1229 Blossom Terrace Boiling Springs, P A 17007 In reo Landis, Inc. Obligor/Obligation Nos.: 30944824-601138518 (S580,OOO Line of Credit Loan) 30944824-601147466 (S120,000 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 Agreement, and other related loan documents (the "Loan Documents"). As you also know, you are in default under the Loans and Loan Documents for your failure to payoff the above- referenced loan accounts on August I, 2004. As a result of this Event of Default, all liabilities and obligations under the Loans and Loan Documents have been accelerated and all liabilities and obligations under the Loans and Loan Documents are immediately due and payable to PNC. In addition, pursuant to the terms of the Loan Documents you are hereby notified, that effective this date, PNC has exercised its right to increase the interest rates on the Loans to the default rates as follows: Landis. Inc. 30944824-601138518 30944824-601147466 Existine Interest Rate Default Rate PNC Bank's prime rate + 11.10 18.10% PNC Bank's prime rate + 16.00% 20.00% Steven J. and Kimberlv L. Caouano 30944834-601549745 19.10% 20.00% A member of The PNC Financial Servicts Group 4242 Carlisle Pike Camp Hill Pennsylvania 17011 i Ly.h, 6,; ;1/1 , . , . 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, P A 17011, in the form of a cashiers check or money order, PNC may take all action it deems appropriate to collect the above sums due and owing, preserve, protect and enforce its rights under the Loans and Loan Documents. This letter shall not be deemed to constitute a waiver of any outstanding defaults or Events of Default, nor shall it obligate PNC, or be construed to require PNC, to waive any defaults, whether now existing or which may occur after the date of this letter, nor sha1l it limit PNC's rights to exercise all of its rights and remedies Wlder 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 yolUli, PNC Bank, National Association ~Q~ Eric D. Krimmel Vice President Certified Mail Nos.: 700204600000 9754 8954 7002 0460 0000 9754 8961 ce: Geoffrey S. Shuff, Esquire / . . , PNC BANK, NATIONAL ASSOCIA IrON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. LANDIS, INC., 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: IJ-( u...lo 'i By: t.:- ? . Q Eric Krimmel Vice President 4 \-:> ~~ 'i ~ ~ ~ ~ 2..-l tu ~ ~ -\I;l. - -() l.r) C> -0 r- f- ---.L. .. ;. ( -\ :;.:c'(. ~:;\ --.:.. . " . ~e c::;, -rl "'" <-- S?: I .r:- ~..,.., P',':":: -;::Jj'''() :-,,17 ~:'~~,(? ~\_- "q (2('") t.::;P1 ---~ ~- :iJ '< "'" :& - - ., '-"l co - PNC BANK, NATIONAL ASSOCIATION, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. DS - 57 CiU'Ll/~ LANDIS, INC., 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 SAID IS, SHUFF, FLOWER & LINDSAY 2109 Market Street, Camp Hill, P A 17011 (717) 737-3405 (fax) 737-3407 Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY Date: / ~ -7$ ---() V , By: Ge ffre . S Supreme Co #24848 2109 Market Street Camp Hill, PA 17011 (717) 737-3405 Attorney for Plaintiff () "" c,; = 0 r~) c.n "Tl <- --t :1.-" ::r:..,.., Z rn~ ,- -om .r;;- :06 0 ~!" :;:!-,.. :i: (S:i.i ,>() - {~)m .. .--.! (.,) :": .;1.') CO -< PNC BANK, NA TIONAL ASSOCIATION, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. C)~ - !;'1 Ciu; L 'tVL~ LANDIS, INC., Defendant : CONFESSION OF JUDGMENT : CIVIL ACTION - LAW AFFIDAVIT OF NON-MILITARY SERVICE TO THE PROTHONOTARY: I do certifY, to the best of my knowledge, that the Defendant, Landis, Inc., in the above- captioned action is not presently on active or nonactive military status. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY Date: / 2 - -z.g - 0 y y ~ /']- By: . / /. . Ge6f~ , Esquire Supreme Court ID #24848 2109 Market Street Camp Hill, P A 17011 (717) 737-3405 Attorney for Plaintiff ~ ,..., (.-::.':> c:;> ~ C- p, Z o " -..... ::J::,::D (1,- -of"n -.')CJ 96 2~~ -')rn ~~-l -"J:?- ~:o :=< I :,.- :p" ::;;: CoJ co v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. O~- 57 Clu~C-T~ PNC BANK, NATIONAL AS SOCIA nON, Plaintiff LANDIS, INe., Defendant : CONFESSION OF JUDGMENT : CIVIL ACTION - LAW CERTIFICATE OF ADDRESSES I hereby certify that the precise address of Plaintiff, PNC Bank, National Association, is 4242 Carlisle Pike, Camp Hill, Pennsylvania 17011; and that the last known address of the Defendant, Landis, Inc., is Woodcraft Drive, P.O. Box 186, Mount Holly Springs, PA 17065. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY Date: I 2- - bB - 0 t.; By: Geo rey . Shuf , Esquire Supreme Court ID #24848 2109 Market Street Camp Hill, PAl 70 11 (717) 737-3405 Attorney for Plaintiff (") c- .~... ~:.,J 1;; ~3 -, ,..., ~=-:::J '.::.:;lO "" '- "'" Z I ... (") -'1 :.? -'- :Il fl'!_ -om :.b9 ~:)o :.:~:H ()o ~~rn :'~ "J> ~;v :--< :::-~ ~ - .. W 0:> v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. OS; - 57 CULL ~ 8L~ CONFESSION OF JUDGMENT CIVIL ACTION - LAW PNC BANK, NATIONAL ASSOCIATION, Plaintiff LANDIS, INC., Defendant NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION REQUIRED BY 42 Pa. C.S.A. S 2737.1 (Act 105 of2000) To: Landis, Inc. Pursuant to 42 Pa. C.S. S 2737.1. please take notice that the Plaintiff in this matter has entered a judgment by confession against you in the amount of $124,999.16. 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 Civili'rocedure. You will file a petition by leaving it with the courts or Prothonotary at the courthouse in Carlisle, Cumberland County, Pennsylvania. A petition is a formal statement of your reasons for challenging the judgment. You must include the names of the parties at the top of the first page and the case number, which is shown above. The petition must state your reasons for challenging the judgment is a separate numbered paragraphs. You have to sign the petition and include a sworn statement at the end of the document verifying that the facts you state in the petition are true and accurate. You will waive any defenses and objections not included in your petition to strike or open. You must therefore make every effort to raise all possible issues and defenses in your petition to strike or open in order to avoid waiving any claims. If you elect to file a petition, it must meet the requirements of Rule 2959 of the Rules of Civil Procedure. A full copy of Rule 2959 is attached to this Notice. You may also have to comply with local rules of procedure in effect in the county where the judgment was entered. If you do not file a petition challenging the judgment, the Plaintiff may take steps to collect on the judgment by asking the Sheriff to seize your assets. You may have other rights available to you other than as set forth in this notice. You should take this paper to your lawyer at once. If you do not have a lawyer, go to or telephone the office set forth below. This office can provide you with information about hiring a lawyer. If you cannot afford to hire a lawyer, this office may be able to provide you with information about agencies that may offer legal services to eligible persons at a reduced fee or no fee. Cumberland County Bar Association 32 South Bedford Street Carlisle,PA 17013 (717) 249-3166 or 1-800-990-9108 Corporations may be unable to represent themselves in court. 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 ofthe notices or information obtained in other papers that may be served upon you. We reiterate that you are required to act promptly if you wish to seek relief from the judgment. Under certain circumstances, you have only 30 days in which to file a petition after papers are served on you. Even if the 30 day rule does not apply, you must act promptly in order to protect your interests. Failing to act in a timely manner will render you unable to challenge the judgment at a later time. Pursuant to 40 Pa. C.S.A. Section 2737.1, if you have been incorrectly identified and had a confession or judgment entered against you, you are entitled to costs and reasonable attorney fees as determined by the court. Respectfully submitted, Date: December 28, 2004 SAlDIS, SHUFF, FLOWER & LINDSAY /7 /<:J} By: ,,/ / / G ffr / hu S~me Cou D #24848 2109 Marke treet Camp Hill, PA 17011 (717) 737-3405 Attorney for Plaintiff Pennsvlvania Rule of Civil Procedure 2959 - Strikinl! off Judl!ment (a)(I) 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.l(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. (t) 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. ~ c::'l "" <- :rt:t" -~,.. .~ \ .c- o ~'t\ .-::\ ::L-n p1-= ...,.,h1 :Liy C)6 :-j.,) 'i;'~~~1 ~:;-'lrn :;~ 'i:J :-<: s: .- .- .- c..) OJ --- PNC BANK, NATIONAL ASSOCIATION, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. or; - 51 CiuL Y82-rl\.. LANDIS, INC., Defendant : CONFESSION OF JUDGMENT : CIVIL ACTION - LAW To: Landis, Inc., Defendant You are hereby notified that on _ );::z", '). '-( , 200," judgment by confession was co"",, ,,,,,. y"" i, dill ,= of$I24,999.16 in ," _~""tioo"" =~ DATE: J/'-t los (}({./j--b, j k!. Prothonotary 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. Cwnberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 I hereby certify that the following are the addresses of the defendants stated in the certificate of residence: Landis, Inc. Woodcraft Drive, P.O. Box 186 Mount Holly Springs, P A 1706 -.. A, Landis, Inc., 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 $124,999.16 del caso antes escrito. Fecha: el dia de de 2004 Protonotario LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO, V A Y A EN PERSONA A LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800.990-9108 Por este medio certifico que 10 siguiente es la direccion del demandado dicho en el certificado de residencia: Landis, Inc. Woodcraft Drive P.O. Box 186 Mount Holly Springs, P A 17065 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANIA- CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-57 CIVIL TERM Plaintiff v. : CONFESSION OF JUDGMENT LANDIS, INC., Defendant : PREVIOUSLY ASSIGNED TO: N/A PRAECIPE TO THE PROTHONOTARY: Please mark the judgment entered in the above-captioned action satisfied. Respectfully submitted, SAlOIS, SHUFF, FLOWER & LINDSAY Date: November 14,2005 By: ? . Shuff, Esquire Supreme Court ID #24848 2109 Market Street Camp Hill, PA 17011 (717) 737-3405 Attomeys for Plaintiff, PNC Bank, National Association :c:~, r..~ :' cf"1 ~) ~n :.:;1 :;\.1 -- c:~:< (~.? o -". -