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HomeMy WebLinkAbout05-2071 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SOVEREIGN BANK Plaintiff ., . vs. No. 0 S- - ..,;1..07 I ~ DAVID L. ELLIS AGENCY, INC. Defendant Confession of Judgment CONFESSION OF JUDGMENT Pursuant to the authority contained in the Warrant of Attorney, a copy of which is attached hereto, I appear for the above Defendant and confess judgment in favor of the Plaintiff, Sovereign Bank, and against the Defendant, in the amount of $545,837.80 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: 4-(';; -0:; By: Benjamin . Riggs, Attorney for Defendant PA1-YGS-01-01 101 South George Street York, PA 17401 Phone: (717) 771-9456 1.0. No. 72030 , -, , , -'il ~:J 1'.\ ;',') (.n l"~" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SOVEREIGN BANK Plaintiff vs. No. p5 - 01. 0 7 I ~~ DAVID L. ELLIS AGENCY, INC. Defendant Confession of Judgment COMPLAINT FOR CONFESSION OF JUDGMENT Plaintiff, Sovereign Bank, confesses judgment against Defendant, David L. Ellis Agency, Inc., a corporation, in the amount of $545,837.80 as provided for in that certain Guaranty in support thereof avers as follows: 1. The Plaintiff is Sovereign Bank, successor-in-interest to Waypoint Bank, 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 doing business at Rt. 30 & 320, Aldwyn Center 2, Mail Stop # 20-536-ARO, Villanova, PA 19085. 2. The Defendant is David L. Ellis Agency, Inc., a corporation 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 authorizes confession of judgment. A true and correct of copy of the Guaranty is attached hereto, 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 defined as a "consumer credit transaction" in accordance with Annex A. to Title 231, Chapter 2950, 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 Rule 2951(a)(2). 6. That judgment has not been entered on the attached instrument in any jurisdiction. 7. The Guaranty provides for confession of judgment against the Defendant, after default under the Guaranty. Plaintiff has exercised its right to confess judgment pursuant to the terms of the instrument for an amount which Defendant may become liable. Defendant is in default under the terms of the Guaranty. 8. On or about April 11, 2005, Plaintiff sent written notice to the Defendant via certified mail demanding that all outstanding past due amounts, plus accrued late and legal fees due under the documents be paid in full and the Defendant failed to do so. A true and correct copy of such written notice is attached hereto, marked Exhibit "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, itemized as follows: Total ~ WHEREFORE, Plaintiff, Sovereign Bank, demands judgment against the Defendant, David L. Ellis Agency, Inc. in the total sum of $545,837.80 as authorized by the Warrant appearing in the Guaranty, plus costs of suit. DATED: lj-/If-O;- By: 12 Benjamin . Rigg ,~. Attorney for Plaintiff PA1-YGS-01-01 101 South George Street York, PA 17401 Phone: (717) 771-9456 1.0. No. 72030 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I further verify that I am a Vice 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 subject to the penalties of 18 Pa.C.S. ~ 4904 relating to unsworn falsification to authorities. /.r--" ~.__~ SOV~~BANK ~. i./ \ By: . ~/ \ Thomas You Vice Presiden DATED: '-\ \ rv \ 06 ------~--- /~ CONTINUING AGREEMENT OF GUARANTY AND SURETYSHIP (Agency) This Continuing Agreement of Guaranty and Suretyship (the "Guarantee") is made and entered into this 15th day of May, 2003, by and between DAVID L. ELLIS AGENCY, INC., a Pennsylvania corporation ("Guarantor"), in favor ofW A YPOINT BANK, a federally chartered savings bank (the "Bank"). BACKGROUND In order to induce the Bank to: (i) extend a commercial mortgage loan facility to David L. Ellis ("Ellis") in the original principal amount of$525,000 (the "Commercial Loan"); and (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 (SAC) Ltd. ("Beneficiary") (DLE and Ellis are herein jointly referred to the "Obligors"), all as provided by and in accordance with that certain Credit Agreement among the Bank, the Obligors, the Guarantor and David Ellis & Co. of Pennsylvania, Inc. dated even date herewith (as it may hereafter from time to time be restated, amended, modified or supplemented, the "Loan Agreement"), the Guarantor hereby unconditionally and irrevocably guarantees and becomes surety as though it was a primary obligor for the full and timely payment and performance when due, whether at maturity, by declaration, acceleration or otherwise, of all amounts and payments due, and all other of the Obligors' duties, obligations and liabilities under the terms ofthe Loan Agreement and each of the Loan Documents (as defined in the Loan Agreement), whether for principal, interest or fees and expenses, both those now in existence and those that shall hereafter arise, and each and every other obligation or liability (both those now in existence and those that shall hereafter arise and including, without limitation, all costs and expenses of enforcement and collection, including reasonable attorney's fees) of each of the Obligors to the Bank under the Loan Agreement and the Loan Documents, and any extensions, renewals, replacements or refundings thereof (hereinafter referred to as the "Guaranteed Indebtedness"), whether or not such Guaranteed Indebtedness or any portion thereof shall hereafter be released or discharged or is for any reason invalid or unenforceable. I. Capitalized terms used herein and not otherwise defined herein shall have such meanings given to them in the Loan Agreement. 2. Guarantor agrees to make such full payment forthwith upon demand of the Bank when the Guaranteed Indebtedness or any portion thereof is due to be paid by Obligors to the Bank, whether at stated maturity, by declaration, acceleration or otherwise. Guarantor agrees to make such full payment irrespective of whether or not anyone or more of the following events 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 Bank has pursued any rights which it has against any other person or entity who may be liable for the Guaranteed Indebtedness; (iv) the Bank holds or has resorted to any security for the Guanmteed Indebtedness; or (v) the Bank has invoked any other remedy or right it has available with respect to the Guaranteed Indebtedness. Guarantor further agrees to make full payment to the Bank even if circumstances exist which otherwise constitute a legal or equitable discharge of Guarantor as surety or guarantor. 268953 t::. K.?1 (.1::, ,+ A 3. Guarantor warrants to the Bank that: (i) no other agreement, representation or special condition exists between Guarantor and the Bank regarding the liability of Guarantor hereunder, nor does any understanding exist between Guarantor and the Bank that the obligations of Guarantor hereunder are or will be other than as set forth herein; and (ii) as of the date hereof, Guarantor has no defense whatsoever to any action or proceeding that may be brought to enforce this Guarantee. 4. Guarantor waives and agrees not to enforce any of the rights of Guarantor against Obligors or any other guarantor, including, but not limited to: (i) any right of Guarantor to be subrogated in whole or in part to any right or claim with respect to any Guaranteed Indebtedness or any portion thereofto the Bank which might otherwise arise from payment by any guarantor to the Bank on the account of the Guaranteed Indebtedness or any portion thereof; and (ii) any right of any guarantor to require the marshalling of assets of Obligors or any other guarantor which might otherwise arise from payment by Guarantor to the Bank on account of the Guaranteed 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 benefit of, and held in trust for the benefit of, the Bank and shall forthwith be paid to the Bank to be credited and applied upon the Guaranteed Indebtedness, whether matured or unmatured, in accordance with the terms ofthe Loan Agreement. Guarantor acknowledges that it will receive 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 contemplation of such benefits. 5. Guarantor waives promptness and diligence by the Bank with respect to its rights under the Loan Agreement or any of the other Loan Documents, including, but not limited to, this Guarantee. 6. Guarantor waives any and all notice with respect to: (i) acceptance by the Bank 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 Indebtedness. 7. Guarantor waives any presentment, demand, notice of dishonor or nonpayment, 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 the 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 of the Guaranteed Indebtedness or ,my portion thereof; (iii) change, renew, or waive the terms, including without limitation, the rate of interest charged to Obligors, of any note, instrument, or agreement relating to the Guaranteed Indebtedness or any portion thereof; (iv) grant any extension or indulgence with respect to the payment to the Bank of the Guaranteed Indebtedness or any portion thereof; (v) enter into any 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 agreed -2- to purchase the Guaranteed Indebtedness or any portion thereof; and (viii) release, surrender, exchange or compromise any security or Lien held by the Bank for the liabilities of any guarantor or surety for the Guaranteed Indebtedness or any portion thereof. Guarantor agrees that the Bank may do any of the above as it deems necessary or advisable, in its sole discretion, without giving any notice to Guarantor, and that Guarantor will remain liable for full payment to the Bank ofthe Guaranteed Indebtedness. 9. Upon failure by Guarantor to pay any amount owing hereunder when due and payable (by acceleration or otherwise), the Bank and any branch, subsidiary or affiliate of the Bank anywhere in the world shall each have the right, at any time and from time to time to 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 payable amounts any debt owing to, and any other funds held in any manner for the account of Guarantor by the Bank or any such branch, subsidiary or affiliate including, without limitation, all funds in all deposit accounts (whether time or demand, general or special, provisionally credited or finally credited, or otherwise) now or hereafter maintained by Guarantor with the Bank or such branch, subsidiary or affiliate. Such right shall exist whether or not the Bank shall have given notice 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 matured or unmatured, and regardless of the existence or adequacy of any collateral, guarantee or any other security, right or remedy available to the Bank. Guarantor hereby consents to and confirms the foregoing arrangements, and confirms the Bank's rights and each such branch's, subsidiary'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 the date hereof, may incur additional Indebtedness or other obligations, fees and expenses to the Bank under the Loan Agreement, refinance existing Guaranteed Indebtedness or pay existing Guaranteed Indebtedness and subsequently incur additional Indebtedness to the Bank under 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 enforceability 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 all purposes constitute Guaranteed Indebtedness. II. Guarantor further agrees that, if at any time all or any part of any payment, from whomever received, theretofore applied by the Bank to any of the Guaranteed Indebtedness is 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, for the purposes of this Guarantee, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Bank, and 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 of the Bank to exercise any of its rights, powers or privileges under this Guarantee shall be a wavier of such rights, powers or privileges or a waiver of any default, nor shall any single or partial exercise of any of the Bank's , -~- rights, powers or privileges preclude other or further exercise thereof or the exercise of any other right, power or privilege or be construed as a waiver of any default. Guarantor further agrees that no waiver or modification of any rights of the Bank under this Guarantee shall be effective unless in writing and signed by the Bank. Guarantor further agrees that each written waiver shall extend only to the specific instance actually recited in such written waiver and shall not impair the 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 Guarantor. 14. Guarantor agrees that this Guarantee and the rights and obligations of the parties hereto shall for all purposes be governed by and construed and enforced in accordance with the substantive law of the Commonwealth of Pennsylvania without giving effect to its principles of conflict of laws. 15. Guarantor recognizes that this Guarantee when executed constitutes a sealed instrument and as a result the instrument will be enforceable as such without regard to any statute oflimitations 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 of this Guarantee the Bank offered to Guarantor a copy of this Guarantee in the form in which it was executed and that by acknowledging this fact such Guarantor may not later be able to claim that a copy of the Guarantee was not received by it. 17. Guarantor agrees that this Guarantee shall be binding upon Guarantor and its successors and assigns; provided, however, that Guarantor may not assign, delegate or transfer any of its rights and obligations hereunder or any interest herein. Guarantor further agrees that (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 and (ii) this Guarantee shall inure to the benefit of the Bank, its successors, assigns and transferees. 18. Guarantor agrees that if Guarantor fails to perform any covenant or agreement hereunder or if there occurs an Event of Default under the Loan Agreement, all or any part of the Guaranteed Indebtedness may be declared to be forthwith, or may immediately become without declaration, due and payable, in any case without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived. 19. Guarantor agrees that the enumeration of the Bank's rights and remedies set forth in this Guarantee is not intended to be exhaustive and the exercise by the Bank of any right or 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 any other agreement among the parties to the Loan Documents or which may now or hereafter exist 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 below -4- its name on the signature page hereof in the manner provided in Section 10.5 of the Loan Agreement. 21. (a) Guarantor agrees that the provisions of this Guarantee are severable, 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 unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, in such jurisdiction and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision in this Guarantee in any jurisdiction. (ii) if this Guarantee would be held or determined to be void, invalid or unenforceable on account of the amount of Guarantor's aggregate liability under this Guarantee, then, notwithstanding any other provision of this Guarantee to the contrary, the aggregate amount of such liability shall, without any further action by the Bank, Guarantor or any other person or entity, be automatically limited and reduced to the highest amount which is valid and enforceable 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 under the terms of and as a result of the Loan Documents, including, without limiting the generality of the foregoing and to the extent not inconsistent with applicable federal and state laws affecting the enforceability of guarantees, distributions or advances made to Guarantor with the proceeds of any credit extended under the Loan Documents in exchange for its guaranty of the Guaranteed Indebtedness, or (B) the excess of (I) the amount of the fair saleable value of the assets of Guarantor as ofthe date of this Guarantee as determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors as in effect on the date thereof over (2) the amount of all liabilities of Guarantor as of the date of this Guarantee, also as determined on the basis of applicable federal and state laws governing the insolvency of debtors as in effect on the date thereof. (b) If the guarantee by Guarantor of the Guaranteed Indebtedness is held or 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 any 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 so held to be void, invalid or unenforceable. 22. GUARANTOR AGREES UPON THE OCCURRENCE OF AN EVENT OF DEF AUL T (AS DEFINED IN THE LOAN AGREEMENT) OR A DEF AUL THEREUNDER, -5- ANY ATTORNEY OF ANY COURT OF RECORD IS EMPOWERED WITHIN THE UNITED ST ATES OF AMERICA, OR ELSEWHERE, TO APPEAR FOR GUARANTOR AND, WITH OR WITHOUT A DECLARATION FILED, TO CONFESS JUDGMENT OR A SERIES OF JUDGMENTS AGAINST GUARANTOR IN FAVOR OF THE BANK, AS OF ANY TERM OR TERMS, FOR ANY AND ALL SUMS THEN PAYABLE UNDER THE GUARANTEED 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 GUARANTEED INDEBTEDNESS AS A REASONABLE ATTORNEY'S COMMISSION FOR COLLECTION, AND GUARANTOR HEREBY FOREVER WAIVES AND RELEASES ANY AND ALL ERRORS IN SAID PROCEEDINGS, WAIVES STAY OF EXECUTION, STAY, CONTINUANCE OR ADJOURNMENT OF SALE ON EXECUTION, THE RIGHT TO 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 SPECIFICALLY WAIVES ALL EXEMPTIONS FROM LEVY AND SALE OF ANY PROPERTY THAT NOW IS OR MAY HEREAFTER BE EXEMPT UNDER THE EXISTING OR FUTURE LAWS 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 JUDGMENT, 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 MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT UNTIL SUCH TIME AS THE BANK SHALL HAVE RECEIVED PAYMENT IN FULL OF THE GUARANTEED INDEBTEDNESS. 23. GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTEE. GUARANTOR (i) CERTIFIES 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 WAIVER, AND EXECUTION AND DELIVERY HEREOF BY GUARANTOR, AND (ii) ACKNOWLEDGES THAT THE ENTERING INTO OF THE LOAN AGREEMENT AND THE EXTENSION OF THE GUARANTEED INDEBTEDNESS THEREUNDER BY THE BANK HAS BEEN INDUCED BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION. 24. Guarantor (i) hereby irrevocably submits to the nonexclusive jurisdiction of the 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 United -6- States District Court for the Middle District of Pennsylvania, or any successor to said court (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 extent permitted by applicable law, hereby waives and agrees not to assert by way of motion, as a defense or otherwise in any such suit, action or proceeding, any claim that Guarantor is not personally subject to the jurisdiction of the Pennsylvania Courts; that such suit, action or proceeding is brought in an inconvenient forum; that the venue of such suit, action or proceeding is improper; or that this Guarantee or any Loan Document may not be enforced in or by the Pennsylvania Courts, (iii) hereby agrees not to seek, and hereby waives, any collateral review by any other court, which may be called upon to enforce the judgment of any of the Pennsylvania Courts, of the merits of any such suit, action or proceeding or the jurisdiction of the Pennsylvania Courts, and (iv) waives personal service of any and all process upon it and consents that all such service of process by made by certified or registered mail addressed as provided in Section 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 against Guarantor or Guarantor's assets or to serve process on Guarantor by any means authorized by law. [SIGNATURE PAGE FOLLOWS IMMEDIATELY) -7- [SIGNATURE PAGE 1 OF 1 TO CONTINUING AGREEMENT OF GUARANTY AND SURETYSHIP (Agency)] IN WITNESS WHEREOF, Guarantor intending to be legally bound, has executed this Guarantee as of the date first above written with the intention that this Guarantee shall constitute a sealed instrument. ATTEST: DAVID L. ELLIS AGENCY, INC. By: Name: tJAu11 (/f;u0 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 l70ll David L. Ellis, Individual 3552 Old Gettysburg Road, Suite 503 Camp Hill, PA 17011 David L. Ellis, Individual 3350 North Third Street Harrisburg, PA 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 Bank, successor-in-interest to Waypoint Bank (the "Lender") to David L. Ellis, David L. Ellis Agency, Inc., and David Ellis & Company of Pennsylvania, Inc. (the "Borrowers"), this letter shall serve as notice that the Borrowers failed to abide by the terms of the Loans, 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. , , c xhib do' r?::, , , .sovereign Bank David L. Ellis et al April I I, 2005 - Page 2 By reason of such default, the balance on the Loans shall be accelerated and the entire outstanding principal balance of the Loans plus any and all other sums which are due and payable pursuant to the Loan Documents and the other documents, will become immediately due and payable as follows: Total Outstanding as to Loan #51677974-18, as of 04/05/05: $497,686.77 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 discretion, pursue all available remedies pursuant to the Loan Documents and the other documents, Further, the Borrowers have become and will become further indebted to Sovereign 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 otherwise in default under the Loan Documents and other documents and accordingly, Sovereign 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, please contact the undersigned immediately at (717) 771-9456. Sincerely, cc: Thomas Young, Vice President " ~o ~ ~ 7'0\\ ~ ~. ~ ~. w 4 'P ~ 10 '0 f...l'\ '- C; (> fi' ~ -. "?-- '\ ~\ "\ ( ") rr\ :.::! ;',1 Qj ,.) ,) (j'\ ..'- -. -'",. .- -- r!1 <<,'- 1'".:: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SOVEREIGN BANK Plaintiff vs. No. 0.) - ~'D 7 / (~~ DAVID L. ELLIS AGENCY, 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 eX I 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: 'l;l;(~/.p) /~I jJ .-/ prothono~~ ,(,., /)~? By: --~ If you have any questions concerning the abov ase, please contact the following party: Benjamin F. Riggs, Jr. (1.0. 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 L. Ellis Agency, Inc. Attn: David L. Ellis, President 3552 Old Gettysburg Road, Suite 503 Camp Hill, PA 17011 <--' c:;:l { ~"':~ '__.F. {<) ~-;1 . ' ~ <,.-, en 1"0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SOVEREIGN BANK Plaintiff vs. No. ,0 j- - J. 0 7 ( ~ DAVID L. ELLIS AGENCY, 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 L. Ellis Agency, Inc., is: 3552 Old Gettysburg Road Suite 503 Camp Hill, PA 17011 DATED: V-(8-oS -I By: '- Iv Benjamin . Rig , r. Attorney for Plaintiff PA1-YGS-01-01 101 South George Street York, PA 17401 Phone: (717) 771-9456 I.D. No. 72030 ~.::\ "',:, (;1 C,,:> - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SOVEREIGN BANK Plaintiff vs. No. ,0 S-- ;;(<:>, I ~~. DAVID L. ELLIS AGENCY, 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, personally appeared Benjamin F. Riggs, Jr., Attorney for the Plaintiff in the above entitled case, who being duly sworn or affirmed according to law deposes and says, that the Defendant above 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 s~bscribe&t~~~r"" me this liNt, day of .; 2005 ~/:dh(tCZJ Notary Pub. v SOVE My Commission expires: 4~)5. Oft; Benjamin . Rig As Attorney for Plaintiff PA1-YGS-01-01 101 South George Street York, Pennsylvania 17401 1.0. 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 r-,:J (~~l c.;"., .::.n -" ", ~. en (..,;, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SOVEREIGN BANK Plaintiff vs. No. OS-~ ';;'011 ~..(~ DAVID L. ELLIS AGENCY, INC. Defendant Confession of Judgment Commonwealth of Pennsylvania County of Delaware AFFIDAVIT OF DEFAULT AND BUSINESS TRANSACTION Thomas Young, being duly swom according to law, deposes says he is Vice 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 containing the warrant of attorney upon which judgment is confessed is attached to the Complaint 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 individual persons in connection with a consumer credit transaction; an.dAtJatDefendant is in default under the Guaranty for the reasons set fO~ill.cthiCOmplai 't. ( ( , Sworn and subscribed before SO R N NK me this~day of ;:J,,:J,I 2005 . M7I /;7 '7 Jl,tdfrT Notary Public My Commission Expires tPdl;h.r --~ COMMONWEALTH OF PENNSYLVANIA Notarial Seal Helen M. Malloy, NOIaIy Public Marcus Hook BolO, Delaw.... County My Commission ExpIres />fJr. 22, 2008 Member PAnnsyllfania A~['or:i~I;rln Of Notaries c-o <:~ LA (:, -n r-,,~, T.' en c.:- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SOVEREIGN BANK Plaintiff vs. No. p s- - 010"7 I c=-<-.u:.....( ~ DAVID L. ELLIS AGENCY, INC. Defendant Confession of Judgment NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: David L. Ellis Agency, 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 favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property 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) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. DATED: if -Irs-~O:; CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 4th Floor, Cumberland County Courthouse Carlisle, PA: 17013 Telephone: (717) 240-6200 By: Benjamin . Rig Attorney for Plaintiff PA1-YGS-01-01 101 South George Street York, PA 17401 Phone: (717) 771-9456 1.0. No. 72030 Cq (.,.) :::j ,'11 t.,,) . ("~ ..... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SOVEREIGN BANK Plaintiff vs. No. 05-- ;/.0"/ ( G.--->--f ~ DAVID L. ELLIS AGENCY, 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 against you. Please be further advised that if you have been incorrectly identified and had 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: 1.1-/7{"-05 By: Benjamin . Rig Attorney for Plaintiff PA1-YGS-01-01 101 South George Street York, PA 17401 Phone: (717) 771-9456 I.D. No. 72030 ., Pa. R.C.P No. 2959 PURDON'S PENNSYLVANIA STATUTES AND CONSOLIDATED STATUTES ANNOTATED PURDON'S PENNSYLVANIA CONSOLIDATED STATUTES 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 petition. Except as provided by 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 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. 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 all other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. -------- C',;. Y ~'-I:i ,:J' ._l , , (.,n (..0 - r-1 , ~ 1 '" <) - ~ l '"' - . ... ~. <)~ 1\ - .,) ",[>I - ( O;:J) & \~ ...0 C4~ \. oPU C" [>I::::: or- ... ~ '" ~"1 " .J " ,...:z;H ... ,- til~ )F..w' ~'; ,--.. / <-' ... c- -cJ ~,' .-t ... ~p:\;>< . tJl::::: ,)'li.) -'c" ,... I. <:: - ... U 0-;' ..,) ..Y o l.."} 0 ~ ,..:j ",-, .:- ",p"d. <) ~~ ." -(, :j ,...,,: r- ~:::: II J " O',r / ......~t:1) .... - 0 .1.. <) ..... p:\ ~ \U . .~ "' r-[>I":> '" p:::: ~ .. > , .l- I ,...:s:,.:>r:-.... ......::: , '3~ . " Hbl-(h ty1--= " , ;; I:< .....3 ~~ C>< c r j ... ...rl ,.:> - ~~CI":;.1 - - "''''...0 - \c ';i~~IU~ - ,.:>000 ~ \>>"'.....U . ' o -on ,-t , l..-' , SHERIFF'S RETURN - OUT OF COUNTY CASE NO:' 2005-02071 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SOVEREIGN BANK VS DAVID L ELLIS AGENCY INC 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 L ELLIS AGENCY 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 Dep Dauphin Co Mileage 18.00 9.00 10.00 30.00 11.10 78.10 OS/24/2005 SOVEREIGN BANK So .~~ ' .' '~.e~~ .._.?~~...:;C~:;~:;~ R. Thomas Kl ine -- (' Sheriff of Cumberland County Sworn and subscribed to before Of~'U me this d.5-t day c20o'J ~ In The Court of Common Pleas of Cumberland County, Pennsylvania Sovereign Bank VS. David L. Ellis Agency Ine No. 05-2071 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 Cum berland County, P A Affidavit of Service Now, ,20_, at o'clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before methis_dayof ,20_ COSTS SERVICE . MILEAGE AFFIDAVIT $ $ @ffitt of iqc ~4criff 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. 0756-T - -2005 OTHER COUNTY NO. 05-2071 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 1, 2006 Deputy Sheriff Sheriff's Costs:$30.00 PD 04/27/2005 RCPT NO 206298