HomeMy WebLinkAbout05-2070
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL ANIA
CIVIL ACTION
SOVEREIGN BANK
Plaintiff
vs.
No. 65'- ';<0"70
~
DAVID ELLIS & CO. OF
PENNSYLVANIA, INC.
Defendant
Confession of Judgment
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Warrant of Attorney, a copy of w ich is
attached hereto, I appear for the above Defendant and confess judgment in favor f the
Plaintiff, Sovereign Bank, and against the Defendant, in the amount of $545,837.8 as
follows, itemized below:
Principal Balance
Interest through 04/05/05
Late Charges
Reasonable Attorneys Fees (10%)
$481,510.23
$ 14,103.74
$ 2,072.80
$ 48,151.03
Total
$545,837.80, plus costs of suit.
Judgment entered as above.
DATED: <f -( '{-o;-
By:
Benjamin . Rigg ,J .
Attorney for Defendant
PA1-YGS-01-01
101 South George Street
York,PA 17401
Phone: (717) 771-9456
1.0. No. 72030
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL NIA
CIVIL ACTION
SOVEREIGN BANK
Plaintiff
vs.
No. 0 S - ;;'070
~
DAVID ELLIS & CO. OF
PENNSYLVANIA, INC.
Defendant
Confession of Judgment
COMPLAINT FOR CONFESSION OF JUDGMENT
Plaintiff, Sovereign Bank, confesses judgment against Defendant, David EIIi &
Co. of Pennsylvania, Inc., a corporation, in the amount of $545,837.80 as provided or in
that certain Guaranty in support thereof avers as follows:
1. The Plaintiff is Sovereign Bank, successor-in-interest to Waypoint Ba k, a
corporation organized and existing under the laws of the United States of America, and
it is registered to do business in Pennsylvania, with offices for the purpose of oing
business at Rt. 30 & 320, Aldwyn Center 2, Mail Stop # 20-536-ARO, Villanova PA
19085.
2. The Defendant is David Ellis & Co. of Pennsylvania, Inc., a corporatio
whose principal address is 3552 Old Gettysburg Road, Suite 503, Camp Hill, PA
17011.
3. That attached hereto and incorporated herein by reference thereto is a
copy of the Guaranty dated May 15, 2003 and executed by Defendant, which autho zes
confession of judgment. A true and correct of copy of the Guaranty is attached he
marked Exhibit "A" and incorporated herein by reference.
4. The attached instrument has not been assigned.
5. That the judgment to be entered does not involve a loan define as a
"consumer credit transaction" in accordance with Annex A. to Title 231, Chapter 2950,
Rule 2951(a)(2).
6. That judgment has not been entered on the attached instrument i any
jurisdiction.
7. The Guaranty provides for confession of judgment against the Defe dant,
after default under the Guaranty. Plaintiff has exercised its right to confess jud ment
pursuant to the terms of the instrument for an amount which Defendant may be ome
liable. Defendant is in default under the terms of the Guaranty.
8. On or about April 11, 2005, Plaintiff sent written notice to the Defe dant
via certified mail demanding that all outstanding past due amounts, plus accrue late
and legal fees due under the documents be paid in full and the Defendant failed 0 do
so. A true and correct copy of such written notice is attached hereto, marked Exhi it "B"
and incorporated herein by reference.
9. As a consequence of the Defendant's failure to cure this default the
Defendant is liable to the Plaintiff for $545,837.80, as of April 5, 2005, itemiz as
follows:
Principal Balance
Interest through 04/05/05
Late Charges
Reasonable Attorneys Fees (10%)
$481,510.23
$ 14,103.74
$ 2,072.80
$ 48.151.03
$545,837.80
Total
WHEREFORE, Plaintiff, Sovereign Bank, demands judgment agai st the
Defendant, David Ellis & Co. of Pennsylvania, Inc. in the total sum of $545,83 80 as
authorized by the Warrant appearing in the Guaranty, plus costs of suit.
./
DATED:t{-/"i5 -O'e:>
By:
Benjamin . Rig ,Jr.
Attorney for Plaintiff
PA1-YGS-01-01
101 South George Street
York,PA 17401
Phone: (717) 771-9456
I.D. No. 72030
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and c rrect
to the best of my knowledge, information, and belief. I further verify that I am a Vi e
President of SOVEREIGN BANK, and that as such, I am authorized to make this
Verification on its behalf. I understand that false statements herein are made subj ct to
the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities.
S
DATED:~
By:
CONTINUING AGREEMENT OF GUARANTY AND SURETYSHIP (Comp oy)
This Continuing Agreement of Guaranty and Suretyship (the "Guarantee") is ma e and
entered into this 15th day of May, 2003, by and between DAVID ELLIS & CO. OF
PENNSYLVANIA, INC., a Pennsylvania corporation ("Guarantor"), in favor ofW A YP INT
BANK, a federally chartered savings bank (the "Bank").
BACKGROUND
In order to induce the Bank to: (i) extend a commercial mortgage loan facility to avid L.
Ellis ("Ellis") in the original principal amount of$525,000 (the "Commercial Loan"); an (ii)
issue a standby letter of credit for the account ofD.L.E. Real Estate Company ("DLE") in the
stated amount of $2,800,000 (the "Letter of Credit") to Gettysburg National Indemnity (S C)
Ltd. ("Beneficiary") (DLE and Ellis are herein jointly referred to the "Obligors"), all as pr vided
by and in accordance with that certain Credit Agreement among the Bank, the Obligors, t e
Guarantor and David L. Ellis Agency, Inc. dated even date herewith (as it may hereafter m
time to time be restated, amended, modified or supplemented, the "Loan Agreement"), th
Guarantor hereby unconditionally and irrevocably guarantees and becomes surety as thou it
was a primary obligor for the full and timely payment and performance when due, whethe at
maturity, by declaration, acceleration or otherwise, of all amounts and payments due, and II
other of the Obligors' duties, obligations and liabilities under the terms of the Loan Agree ent
and each of the Loan Documents (as defined in the Loan Agreement), whether for princip ,
interest or fees and expenses, both those now in existence and those that shall hereafter ari e, and
each and every other obligation or liability (both those now in existence and those that shal
hereafter arise and including, without limitation, all costs and expenses of enforcement an
collection, including reasonable attorney's fees) of each of the Obligors to the Bank under e
Loan Agreement and the Loan Documents, and any extensions, renewals, replacements or
refundings thereof (hereinafter referred to as the "Guaranteed Indebtedness"), whether or n t
such Guaranteed Indebtedness or any portion thereof shall hereafter be released or discharg d or
is for any reason invalid or unenforceable.
1. Capitalized terms used herein and not otherwise defined herein shall have su h
meanings given to them in the Loan Agreement.
2. Guarantor agrees to make such full payment forthwith upon demand of the B nk
when the Guaranteed Indebtedness or any portion thereof is due to be paid by Obligors to th
Bank, whether at stated maturity, by declaration, acceleration or otherwise. Guarantor agree to
make such full payment irrespective of whether or not anyone or more of the following eve ts
has occurred: (i) the Bank has made any demand on Obligors or any other guarantor; (ii) the
Bank has taken any action of any nature against Obligors or any other guarantor; (iii) the B
has pursued any rights which it has against any other person or entity who may be liable for e
Guaranteed Indebtedness; (iv) the Bank holds or has resorted to any security for the Guarant ed
Indebtedness; or (v) the Bank has invoked any other remedy or right it has available with res ect
to the Guaranteed Indebtedness. Guarantor further agrees to make full payment to the Bank ven
if circumstances exist which otherwise constitute a legal or equitable discharge of Guarantor s
surety or guarantor.
268952
I:::: X "?lien 1- .A-
3. Guarantor warrants to the Bank that: (i) no other agreement, representati or
special condition exists between Guarantor and the Bank regarding the liability of Guara tor
hereunder, nor does any understanding exist between Guarantor and the Bank that the 0 igations
of Guarantor hereunder are or will be other than as set forth herein; and (ii) as ofthe dat hereof,
Guarantor has no defense whatsoever to any action or proceeding that may be brought to nforce
this Guarantee.
4. Guarantor waives and agrees not to enforce any ofthe rights of Guarantor
Obligors or any other guarantor, including, but not limited to: (i) any right of Guarantor t
subrogated in whole or in part to any right or claim with respect to any Guaranteed Indeb
or any portion thereof to the Bank which might otherwise arise from payment by any gua
the Bank on the account of the Guaranteed Indebtedness or any portion thereof; and (ii) y right
of any guarantor to require the marshalling of assets of Obligors or any other guarantor w ich
might otherwise arise from payment by Guarantor to the Bank on account of the Guarante d
Indebtedness or any portion thereof. If any amount shall be paid to Guarantor in violation of the
preceding sentence, such amount shall be deemed to have been paid to Guarantor for the nefit
of, and held in trust for the benefit of, the Bank and shall forthwith be paid to the Bank to e
credited and applied upon the Guaranteed Indebtedness, whether matured or umnatured, i
accordance with the terms of the Loan Agreement. Guarantor acknowledges that it will re eive
direct and indirect benefits from the financing arrangements contemplated by the Loan
Agreement and that the waivers set forth in this Section are knowingly made in contempla . on of
such benefits.
5. Guarantor waives promptness and diligence by the Bank with respect to its .ghts
under the Loan Agreement or any of the other Loan Documents, including, but not limited 0,
this Guarantee.
6. Guarantor waives any and all notice with respect to: (i) acceptance by the B of
this Guarantee; (ii) the provisions of any note, instrument or agreement relating to the
Guaranteed Indebtedness; and (iii) any default in connection with the Guaranteed Indebte
7. Guarantor waives any presentment, demand, notice of dishonor or nonpaym
protest, and notice of protest in connection with the Guaranteed Indebtedness.
8. Guarantor agrees that the Bank may from time to time and as many times as e
Bank, in its sole discretion, deems appropriate, do any of the following without notice to
Guarantor and without adversely affecting the validity or enforceability of this Guarantee:
(i) release, surrender, exchange, compromise, or settle the Guaranteed Indebtedness or any
portion thereof; (ii) change, renew, or waive the terms ofthe Guaranteed Indebtedness or an
portion thereof; (iii) change, renew, or waive the terms, including without limitation, the rat of
interest charged to Obligors, of any note, instrument, or agreement relating to the Guarantee
Indebtedness or any portion thereof; (iv) grant any extension or indulgence with respect to th
payment to the Bank of the Guaranteed Indebtedness or any portion thereof; (v) enter into an
agreement of forbearance with respect to the Guaranteed Indebtedness or any portion thereof
(vi) release, surrender, exchange or compromise any security held by the Bank for the
Guaranteed Indebtedness; (vii) release any guarantor or surety or person or entity who has a eed
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to purchase the Guaranteed Indebtedness or any portion thereof; and (viii) release, SUITe der,
exchange or compromise any security or Lien held by the Bank for the liabilities of any uarantor
or surety for the Guaranteed Indebtedness or any portion thereof. Guarantor agrees that he Bank
may do any of the above as it deems necessary or advisable, in its sole discretion, witho t giving
any notice to Guarantor, and that Guarantor will remain liable for full payment to the B of the
Guaranteed Indebtedness.
9. Upon failure by Guarantor to pay any amount owing hereunder when due
payable (by acceleration or otherwise), the Bank and any branch, subsidiary or affiliate 0 the
Bank anywhere in the world shall each have the right, at any time and from time to time t the
fullest extent permitted by law, in addition to all other rights and remedies available to it, without
prior notice to Guarantor, to set-off against and to appropriate and apply to such due and ayable
amounts any debt owing to, and any other funds held in any manner for the account of G antor
by the Bank or any such branch, subsidiary or affiliate including, without limitation, all ds in
all deposit accounts (whether time or demand, general or special, provisionally credited 0 finally
credited, or otherwise) now or hereafter maintained by Guarantor with the Bank or such b anch,
subsidiary or affiliate. Such right shall exist whether or not the Bank shall have given not ce or
made any demand hereunder or under the Loan Agreement or any of the Loan Documents
whether or not such debt owing to or funds held for the account of Guarantor is or are mat
unmatured, and regardless of the existence or adequacy of any collateral, guarantee or any
security, right or remedy available to the Bank. Guarantor hereby consents to and confirm the
foregoing arrangements, and confirms the Bank's rights and each such branch's, subsidia 's and
affiliate's rights of banker's lien and set-off.
10. Guarantor recognizes and agrees that either or both of the Obligors, after th
hereof, may incur additional Indebtedness or other obligations, fees and expenses to the B
under the Loan Agreement, refinance existing Guaranteed Indebtedness or pay existing
Guaranteed Indebtedness and subsequently incur additional Indebtedness to the Bank unde the
Loan Agreement, and that in any such transaction, even if such transaction is not now
contemplated, the Bank will rely in any such case upon this Guarantee and the enforceabilit
thereof against Guarantor and that this Guarantee shall remain in full force and effect with
respect to such future Indebtedness of Obligors to the Bank and such Indebtedness shall for II
purposes constitute Guaranteed Indebtedness.
11. Guarantor further agrees that, if at any time all or any part of any payment, fr m
whomever received, theretofore applied by the Bank to any of the Guaranteed Indebtedness s or
must be rescinded or returned by the Bank for any reason whatsoever including, without
limitation, the insolvency, bankruptcy or reorganization of Guarantor, such liability shall, fo the
purposes of this Guarantee, to the extent that such payment is or must be rescinded or return d,
be deemed to have continued in existence, notwithstanding such application by the Bank, an
this Guarantee shall continue to be effective or be reinstated, as the case may be, as to such
liabilities, all as though such application by the Bank had not been made.
12. Guarantor agrees that no failure or delay on the part ofthe Bank to exercise of
its rights, powers or privileges under this Guarantee shall be a wavier of such rights, powers r
privileges or a waiver of any default, nor shall any single or partial exercise of any of the Ba
-3-
rights, powers or privileges preclude other or further exercise thereof or the exercise of yother
right, power or privilege or be construed as a waiver of any default. Guarantor further a ees that
no waiver or modification of any rights of the Bank under this Guarantee shall be effecti e unless
in writing and signed by the Banle Guarantor further agrees that each written waiver sh II extend
only to the specific instance actually recited in such written waiver and shall not impair e rights
of the Bank in any other respect.
13. Guarantor unconditionally agrees to pay all costs and expenses, including
reasonable attorney's fees, incurred by the Bank in enforcing this Guarantee against Gu antor.
14. Guarantor agrees that this Guarantee and the rights and obligations of the arties
hereto shall for all purposes be governed by and construed and enforced in accordance wi h the
substantive law of the Commonwealth of Pennsylvania without giving effect to its princi les of
conflict oflaws.
15. Guarantor recognizes that this Guarantee when executed constitutes a seal d
instrument and as a result the instrument will be enforceable as such without regard to an statute
of limitations which might otherwise be applicable and without any consideration.
16. Guarantor acknowledges that in addition to binding itself to this Guarantee at the
time of execution ofthis Guarantee the Bank offered to Guarantor a copy of this Guarante in the
form in which it was executed and that by acknowledging this fact such Guarantor may no later
be able to claim that a copy ofthe Guarantee was not received by it.
17. Guarantor agrees that this Guarantee shall be binding upon Guarantor and it
successors and assigns; provided, however, that Guarantor may not assign., delegate or tran fer
any of its rights and obligations hereunder or any interest herein. Guarantor further agrees at
(i) this Guarantee is freely assignable and transferable by the Bank in connection with any
assignment or transfer of, or sale of a participation interest in, the Guaranteed Indebtedness nd
(ii) this Guarantee shall inure to the benefit of the Bank, its successors, assigns and transfer es.
18. Guarantor agrees that if Guarantor fails to perform any covenant or agreeme t
hereunder or if there occurs an Event of Default under the Loan Agreement, all or any part fthe
Guaranteed Indebtedness may be declared to be forthwith, or may immediately become wit ut
declaration, due and payable, in any case without presentment, demand, protest or notice of
kind, all of which are hereby expressly waived.
19. Guarantor agrees that the enumeration of the Bank's rights and remedies set
in this Guarantee is not intended to be exhaustive and the exercise by the Bank of any right
remedy shall not preclude the exercise of any other rights or remedies, all of which shall be
cumulative and shall be in addition to any other right or remedy given hereunder or under an
other agreement among the parties to the Loan Documents or which may now or hereafter ex st
at law or in equity or by suit or otherwise.
20. Guarantor agrees that all notices, statements, requests, demands and other
communications under this Guarantee shall be given to Guarantor at the address set forth bel
-4-
its name on the signature page hereof in the manner provided in Section 10.5 of the Lo
Agreement.
21. (a) Guarantor agrees that the provisions of this Guarantee are severa e, and
in an action or proceeding involving any state or federal bankruptcy, insolvency or other law
affecting the rights of creditors generally:
(i) if any clause or provision shall be held invalid or unenforc able in
whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect 0 Iy such
clause or provision, or part thereof, in such jurisdiction and shall not in any manner affec such
clause or provision in any other jurisdiction, or any other clause or provision in this Guar ntee in
any jurisdiction.
(ii) if this Guarantee would be held or determined to be void, i valid or
unenforceable on account of the amount of Guarantor's aggregate liability under this Gu antee,
then, notwithstanding any other provision of this Guarantee to the contrary, the aggregate ount
of such liability shall, without any further action by the Bank, Guarantor or any other pers nor
entity, be automatically limited and reduced to the highest amount which is valid and enfo ceable
as determined in such action or proceeding, which (without limiting the generality of the
foregoing) may be an amount which is not greater than the greater of:
(A) the fair consideration actually received by Guarantor der
the terms of and as a result of the Loan Documents, including, without limiting the general ty of
the foregoing and to the extent not inconsistent with applicable federal and state laws affec ing
the enforceability of guarantees, distributions or advances made to Guarantor with the proc eds
of any credit extended under the Loan Documents in exchange for its guaranty of the Guar teed
Indebtedness, or
(B) the excess of (I) the amount of the fair saleable value fthe
assets of Guarantor as of the date ofthis Guarantee as determined in accordance with appli ble
federal and state laws governing determinations of the insolvency of debtors as in effect on e
date thereof over (2) the amount of all liabilities of Guarantor as of the date of this Guarant e,
also as determined on the basis of applicable federal and state laws governing the insolvenc of
debtors as in effect on the date thereof.
(b) If the guarantee by Guarantor of the Guaranteed Indebtedness is held r
determined to be void, invalid or unenforceable, in whole or in part, such holding or
determination shall not impair or affect:
(i) the validity and enforceability of the guarantee hereunder by y
other guarantor, which shall continue in full force and effect in accordance with its terms; or
(ii) the validity and enforceability of any clause or provision not s
held to be void, invalid or unenforceable.
22. GUARANTOR AGREES UPON THE OCCURRENCE OF AN EVENT OF
DEFAULT (AS DEFINED IN THE LOAN AGREEMENT) OR A DEFAULT HEREUNDE
-5-
ANY ATTORNEY OF ANY COURT OF RECORD IS EMPOWERED WITHIN THE UNITED
STATES OF AMERICA, OR ELSEWHERE, TO APPEAR FOR GUARANTOR AND WITH
OR WITHOUT A DECLARATION FILED, TO CONFESS JUDGMENT OR A SE S OF
JUDGMENTS AGAINST GUARANTOR IN FAVOR OF THE BANK, AS OF ANY ERM
OR TERMS, FOR ANY AND ALL SUMS THEN PAYABLE UNDER THE GUARA TEED
INDEBTEDNESS AND THIS GUARANTEE FOR WHICH JUDGMENT HAS NOT
THERETOFORE BEEN ENTERED, TOGETHER WITH COSTS OF SUIT AND AN
AMOUNT EQUAL TO 10% OF THE PRINCIPAL AMOUNT OF THE GUARANTEE
INDEBTEDNESS AS A REASONABLE ATTORNEY'S COMMISSION FOR COLLE TION,
AND GUARANTOR HEREBY FOREVER W AlVES AND RELEASES ANY AND L
ERRORS IN SAID PROCEEDINGS, WAIVES STAY OF EXECUTION, STAY,
CONTINUANCE OR ADJOURNMENT OF SALE ON EXECUTION, THE RIGHT T
PETITION TO SET ASIDE SALE OR ORDER A RESALE, THE RIGHT TO EXCEPT TO
THE SHERIFF'S SCHEDULE OF PROPOSED DISTRIBUTION, THE RIGHT OF
INQUISITION AND EXTENSION OF TIME OF PAYMENT, AND AGREES TO
CONDEMNATION OF ANY PROPERTY LEVIED UPON BY VIRTUE OF ANY
EXECUTION ISSUED ON ANY SUCH JUDGMENT, AND GUARANTOR SPECIFIC L Y
W AlVES ALL EXEMPTIONS FROM LEVY AND SALE OF ANY PROPERTY THAT NOW
IS OR MAY HEREAFTER BE EXEMPT UNDER THE EXISTING OR FUTURE LAW OF
THE UNITED STATES OF AMERICA, OR OF THE COMMONWEALTH OF
PENNSYLVANIA OR OF ANY OTHER JURISDICTION.
NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDG ENT,
OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER,
WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE
INVALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE
UNDIMINISHED AND IT MAYBE EXERCISED FROM TIME TO TIME AS OFTEN S
THE BANK SHALL ELECT UNTIL SUCH TIME AS THE BANK SHALL HAVE REC NED
PAYMENT IN FULL OF THE GUARANTEED INDEBTEDNESS.
23. GUARANTOR HEREBY W AlVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
UNDER OR IN CONNECTION WITH THIS GUARANTEE. GUARANTOR (i) CERTIF
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE BANK HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WANER, A
EXECUTION AND DELIVERY HEREOF BY GUARANTOR, AND (ii) ACKNOWLED ES
THAT THE ENTERING INTO OF THE LOAN AGREEMENT AND THE EXTENSION F
THE GUARANTEED INDEBTEDNESS THEREUNDER BY THE BANK HAS BEEN
INDUCED BY, AMONG OTHER THINGS, THE W AlVERS AND CERTIFICATIONS S
FORTH IN THIS SECTION.
24. Guarantor (i) hereby irrevocably submits to the nonexclusive jurisdiction ofth
Courts Common Pleas of Dauphin County or Cumberland County, Commonwealth of
Pennsylvania, or any successor to said court, and to the nonexclusive jurisdiction of the Unit
-6-
States District Court for the Middle District of Pennsylvania, or any successor to said c urt
(hereinafter referred to as the "Pennsylvania Courts") for purposes of any suit, action or other
proceeding which relates to this Guarantee or any other Loan Document, (ii) to the exte t
permitted by applicable law, hereby waives and agrees not to assert by way of motion, a a
defense or otherwise in any such suit, action or proceeding, any claim that Guarantor is ot
personally subject to the jurisdiction ofthe Pennsylvania Courts; that such suit, action 0
proceeding is brought in an inconvenient forum; that the venue of such suit, action or pr ceeding
is improper; or that this Guarantee or any Loan Document may not be enforced in or by e
Pennsylvania Courts, (iii) hereby agrees not to seek, and hereby waives, any collateral re iew by
any other court, which may be called upon to enforce the judgment of any of the Pennsyl ania
Courts, of the merits of any such suit, action or proceeding or the jurisdiction of the Pe sylvania
Courts, and (iv) waives personal service of any and all process upon it and consents that II such
service of process by made by certified or registered mail addressed as provided in Secti n 20
hereof and service so made shall be deemed to be completed upon actual receipt thereof
Nothing herein shall limit the Bank's right to bring any suit, action or other proceeding a ainst
Guarantor or Guarantor's assets or to serve process on Guarantor by any means authorize by
law.
[SIGNATURE PAGE FOLLOWS IMMEDIATELY)
-7-
[SIGNATURE PAGE 1 OF 1 TO CONTINUING AGREEMENT OF
GUARANTY AND SURETYSHIP (Company)]
IN WITNESS WHEREOF, Guarantor intending to be legally bound, has execute this
Guarantee as of the date first above written with the intention that this Guarantee shall co stitute
a sealed instrument.
ATTEST:
DAVID ELLIS & CO. OF PENNSYL V
,INC.
ltle: f'"'_...Il.--d."_-/
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By:
Name: fill) L'~
Title: President
Address for Notices:
3552 Old Gettysburg Road
Suite 503
Camp Hill, Pennsylvania 17011
Attention: David L. Ellis
-8-
. .Sovereign Bank
April II, 2005
Via Certified Mail
Return Receipt Requested
David L. Ellis Agency, Inc.
Attn: David L. Ellis, President
3552 Old Gettysburg Road, Suite 503
Camp Hill, PA l70ll
David Ellis & Co. of Pennsylvania, Inc.
Attn: David L. Ellis, President
3552 Old Gettysburg Road, Suite 503
Camp Hill, PA 17011
David L. Ellis, Individual
3552 Old Gettysburg Road, Suite 503
Camp Hill, P A 170 II
David L. Ellis, Individual
3350 North Third Street
Harrisburg, P A 17110-1407
Re: Loan No. 51677974-18/ $525,000.00 term loan
Loan No. 51653504-18/ $75,000.00 term loan.
Dear Mr. Ellis:
With respect to the above referenced loans (the "Loans") from Sovereign B
successor-in-interest to Waypoint Bank (the "Lender") to David L. Ellis, David L. Ell s
Agency, Inc., and David Ellis & Company of Pennsylvania, Inc. (the "Borrowers"), t is
letter shall serve as notice that the Borrowers failed to abide by the terms of the Loan
. specifically those provisions outlined below:
I) The Events of The Default of the Notes, dated May 15,2003, state that the
Borrowers' failure to make any payment when due on the Loans, shall
constitute an Event of Default under the Notes.
E-xh,h,}- i3
, , .Sovereign Bank
David L. Ellis et al
April II, 2005 - Page 2
By reason of such default, the balance on the Loans shall be accelerated the
entire outstanding principal balance of the Loans plus any and all other sums whic are
due and payable pursuant to the Loan Documents and the other documents, will b come
immediately due and payable as follows:
Total Outstanding as to Loan #51677974-18, as of 04/05/05: $497,686.7
Total Outstanding as to Loan #51653504-18, as of 04/05/05: $23,202.82
In addition to the above, Sovereign may, at its option and in its sole discreti n,
pursue all available remedies pursuant to the Loan Documents and the other doc ts.
Further, the Borrowers have become and will become further indebted to Soverei for
all costs and expenses, which Sovereign incurs in exercising its rights and remedies
This notice is not intended to be all inclusive. The Borrowers may be othe se
in default under the Loan Documents and other documents and accordingly, Sovere gn
hereby reserves all of its rights under the documents and at law.
If you have any questions regarding the matters as set forth in this letter, pie e
contact the undersigned immediately at (717) 771-9456.
Sincerely,
cc: Thomas Young, Vice President
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL ANIA
CIVIL ACTION
SOVEREIGN BANK
Plaintiff
vs.
No.
DS' ';;<070
~
DAVID ELLIS & CO. OF
PENNSYLVANIA, INC.
Defendant
Confession of Judgment
NOTICE OF FILING JUDGMENT
() Notice is hereby given that a judgment in the above-captioned matter
has been entered against you in the amount of $545,837.80 on the
day of , 2005, in the above captioned case.
() A copy of all documents filed with the Prothonotary in support of the
within judgment is/are enclosed.
DATE: ~/'^I /45/
,
("' t,JM re
Prothonotary Civil Div.
If you have any questions concerning the a e case, please contact the followin
pa rty:
Benjamin F. Riggs, Jr. (I.D. No. 72030)
Attorney for the Plaintiff
PA1-YGS-01-01
101 South George Street
York, Pennsylvania 17401
Telephone: (717) 771-9456
(This Notice is given in accordance with Pa.R.C.P. 236.)
Notice sent to:
David Ellis & Co. of Pennsylvania, Inc.
Attn: David L. Ellis, President
3552 Old Gettysburg Road, Suite 503
CampHill,PA 17011
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL ANIA
CIVIL ACTION
SOVEREIGN BANK
Plaintiff
. .
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vs.
No.
oS' - cJ.o 7,0
DAVID ELLIS & CO. OF
PENNSYLVANIA, INC.
Defendant
Confession of Judgment
OFFICE OF THE PROTHONOTARY
OF CUMBERLAND COUNTY
CERTIFICATE OF RESIDENCE
PA. R.C.P. 236
I hereby certify that the precise mailing address of the Plaintiff is:
Rt. 30 & 320, Aldwyn Center 2
Mail Stop # 20-536-ARO
Villanova, PA 19085
I hereby certify that the precise mailing address of the Defendant, David Ellis & C . of
Pennsylvania, Inc., is:
3552 Old Gettysburg Road
Suite 503
Camp Hill, PA 17011
DATED: 4-1'6-0[;
By:
Benjamin . Rig , r.
Attorney for Plainti
PA1-YGS-01-01
101 South George Street
York, PA 17401
Phone: (717) 771-9456
1.0. No. 72030
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL ANIA
CIVIL ACTION
SOVEREIGN BANK
Plaintiff
. .
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vs.
N "'5'- ,;2070
o. v
DAVID ELLIS & CO. OF
PENNSYLVANIA, INC.
Defendant
Confession of Judgment
Commonwealth of Pennsylvania
County of York
AFFIDAVIT OF NON-MILITARY SERVICE
Before me, a Notary Public for York County, Pennsylvania, personallyapp red
Benjamin F. Riggs, Jr., Attorney for the Plaintiff in the above entitled case, who be ng
duly sworn or affirmed according to law deposes and says, that the Defendant ab ve
named is not in the military service of the United States of America, that he has
personal knowledge that the said Defendant's, last-known address is 3552 Old
Gettysburg Road, Suite 503, Camp Hill, PA 17011.
Sworn and subscribed before
me this 1'(#1 day of /JI/au:l1/1t,j
2005
't~:~i!f
My Commission expires: LI-/5 -D /P
SOVER ~IGN .~~NK
), Il.[t"
Benjamin r=. Rig~s, Jr.,
As Attorney for Plaintiff
PA1-YGS-01-01
101 South George Street
York, Pennsylvania 17401
I.D. No. 72030
Notarial Seal
Dawn M. Gutierrez, Notary Public
City of York. York County
My Commission Expires Apr. 15, 2006
Member, pennsylvania Association of Notaries
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL ANIA
CIVIL ACTION
SOVEREIGN BANK
Plaintiff
vs.
No.
o ~ - ';<070
]..AA-
DAVID ELLIS & CO. OF
PENNSYLVANIA, INC.
Defendant
Confession of Judgment
Commonwealth of Pennsylvania
County of Delaware
AFFIDAVIT OF DEFAULT AND BUSINESS TRANSACTION
Thomas Young, being duly sworn according to law, deposes says he is Vic
President for Sovereign Bank, Plaintiff, herein; that he is authorized to make this
affidavit on plaintiffs behalf, that a true and correct copy of the Guaranty containin the
warrant of attorney upon which judgment is confessed is attached to the Complai filed
in this action as Exhibits "A"; that the Guaranty constitutes a business transaction
between plaintiff and Defendant; that judgment is not being confessed against ind idual
persons in connection with a consumer credit transaction; and that Defendant is i
default under the Guaranty for the reasons set f it) th GompTal t.
Sworn and .subscribl1d before
me this ~ay of I//J/; /
2005 I
rliL /n 7JI,~7/
Notary Public
My Commission Expires
SO
By:
Thomas You
Vice Presiden
COMMONWEALfH OF PENNSYLVANIA
Notarial Seal
Helen M. Malloy, NotaJy Public
Marous Hook Bore. Delaware County
My Commission Expires Apr. 22, 2008
Member. Pennsylvania Association Of Notaries
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVA IA
CIVIL ACTION
SOVEREIGN BANK
Plaintiff
No. 0 S- - 0<07.0
~
vs.
DAVID ELLIS & CO. OF
PENNSYLVANIA, INC.
Defendant
Confession of Judgment
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
TO: David Ellis & Co. of Pennsylvania, Inc.
Attn: David L. Ellis, President
3552 Old Gettysburg Road, Suite 503
Camp Hill, PA 17011
A judgment in the amount of $545,837.80 has been entered against you and in fa or of
the Plaintiff without any prior notice or hearing based on a confession of judgment contai ed in
a written agreement or other paper allegedly signed by you. The sheriff may take your m ney
or other property to pay the judgment at any time after thirty (30) days after the date on ich
this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or pro erty
from being taken. YOU MUST FILE A PETITION TO STRIKE OR OPEN JUDGMENT
THEREBY SEEKING RELIEF FROM THE JUDGMENT STATING ALL GROUNDS FOR
RELIEF IN A SINGLE PETITION AND PRESENT IT T A JUDGE WITHIN THIRTY (30) YS
AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOS
YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO OT
HAVE A LAWYER AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFIC SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
213 N. Front Street
Harrisburg, Pennsylvania 17101
Telephone: (717) 232-7536
DATED: If-I''{-oS
By:
I
Benjamin . RiggUr
Attorney for Plaintiff
PA1-YGS-01-01
101 South George Street
York, PA 17401
Phone: (717) 771-9456
1.0. No. 72030
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVA IA
CIVIL ACTION
SOVEREIGN BANK
Plaintiff
vs.
No.
t/ :;-- cXo 7~
~
DAVID ELLIS & CO. OF
PENNSYLVANIA, INC.
Defendant
Confession of Judgment
SECTION 2737.1 NOTICE
Pursuant to 42 Pa. C.S. S 2737.1, attached hereto are written instructions
regarding the procedure to follow to strike the confessed judgment entered agains you.
Please be further advised that if you have been incorrectly identified and h a
confession of judgment entered against you, under 42 Pa. C.S. S 2737.1 you are
entitled to costs and reasonable attorney's fees as determined by the Court.
DATED: 4 - Iff -r)~
By:
Benjamin F. Rig s, r.
Attorney for Plaintiff
PA1-YGS-01-01
101 South George Street
York, PA 17401
Phone: (717) 771-9456
1.0. No. 72030
..
Pa. R.C.P No. 2959
PURDON'S PENNSYLVANIA STATUTES AND CONSOLIDATED STATU ES
ANNOTATED PURDON'S PENNSYLVANIA CONSOLIDATED STATU ES
ANNOTATED PENNSYLVANIA RULES OF CIVIL PROCEDURE CONFESSION OF
JUDGMENT FOR MONEY.
Current with amendments received through December 1, 2003.
Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure
(a) (1)
Relief from a judgment by confession shall be sought by pet ion.
Except as provided by subparagraph (2), all grounds for relief whether to strike 0 the
judgment or to open it must be asserted in a single petition. The petition may be fiI d in
the county in which the judgment was originally entered, in any county to whic the
judgment has been transferred or in any other county in which the sheriff has recei ed a
writ of execution directed to the sheriff to enforce the judgment.
(2) The ground that the waiver of the due process rights of notic and
hearing was not voluntary, intelligent and knowing shall be raised only
(i) in support of a further request for a stay of execution whe e the
court has not stayed execution despite the timely filing of a tition
for relief from the judgment and the presentation of prim facie
evidence of a defense; and
(ii) as provided by Rule 2958.3 or Rule 2973.3.
(3) If written notice is served upon the petitioner pursuant to Rule 2956 1 (c)(2)
or Rule 2973.1(c), the petition shall be filed within thirty days after such service. nless
the Defendant can demonstrate that there were compelling reasons for the
petition not timely filed shall be denied.
....
.
(b) If the petition states prima facie grounds for relief the court all
issue a rule to show cause and may grant a stay of proceedings. After being se
with a copy of the petition the plaintiff shall file an answer on or before the return d y of
the rule. The return day of the rule shall be fixed by the court by local rule or sp cial
order.
(c) A party waives all defenses and objections which are not incl ded
in the petition or answer.
(d) The petition and the rule to show cause and the answer sh II be
served as provided in Rule 440.
(e) The court shall dispose of the rule on petition and answer, a d on
any testimony, depositions, admissions and all other evidence. The court for ause
shown may stay proceedings on the petition insofar as it seeks to open the jud ment
pending disposition of the application to strike off the judgment. If evidence is pro uced
which in a jury trial would require the issues to be submitted to the jury the cou shall
open the judgment.
(f) The lien of the judgment or of any levy or attachment shall be
preserved while the proceedings to strike off or open the judgment are pending.
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2005-02070 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SOVEREIGN BANK
VS
DAVID ELLIS & CO OF PENNSYLVAN
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
DAVID ELLIS & CO OF
PENNSYLVANIA INC
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of DAUPHIN
County, Pennsylvania, to
serve the within CONFESSION OF JUDGMENT
On May
24th , 2005 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
Mileage
Dep Dauphin Co
18.00
9.00
10.00
11.10
30.00
78.10
OS/24/2005
SOVEREIGN BANK
So answ",rs: ~ .... J. :;::::::=..:=
~-=~~....__/
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R. Thoma~ Kline
Sheriff of Cumberland County
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. In The Court of Common Pleas of Cumberland County, Pennsylvania
Sovereign Bank
VS. ... G> .f Ii"n"~\va.":o. :roc-
David L. Ellis .'.~eR~J 1",--
No.
05-2070 civil
Now,
April 26. 2005
, I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of
Dauphin
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
r~~
Sheriff of Cumberland County, PA
Affidavit of Service
Now,
,20 ,at
o'clock
M. served the
within
upon
at
by handing to
a
copy of the original
and made !mown to
the contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
methis_dayof ,20_
COSTS
SERVICE .
NllLEAGE
AFFIDAVIT
$
$
@flire of tqr ~4r:riff
William T. Tully
Solicitor
J. Daniel Basile
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W. Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 255-2660 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
SOVEREIGN BANK
vs
County of Dauphin
DAVID L ELLIS AGENCY INC
Sheriff's Return
No. 0757-T - -2005
OTHER COUNTY NO. 05-2070 CIVIL TERM
I, Jack Lotwick, Sheriff of the County of Dauphin, State of
pennsylvania, do hereby certify and return, that I made diligent
search and inquiry forDAVID L ELLIS AGENCY INC
the DEFENDANT named in the within NOTICE,COMPLAINT & CONFESSION JUNDGMENT
and that I am unable to find him/her in the County of Dauphin, and
therefore return same NOT FOUND, May 19, 2005
NOT SERVED
EXPIRED
Sworn and subscribed to
So Answers,
JK~
before me this 19TH day of MAY, 2005
Sheriff of Dauphin County, Pa.
~~
By
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept I, 2006
Deputy Sheriff
Sheriff's Costs:$30.00 PD 04/27/2005
RCPT NO 206299