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SAIDIS, GUIDO,
SHun' &
MASLAND
26 W. Hlah 5'",,,
Carll,I., PA
JAMES C. BARTOLI, INC., I
Plaintiff I
I
V. I
I
DAVID M. HAGER and ROBERT J. I
COLAIZZI, I
Defendants I
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
,
NO. 'I '- .:J 13 ." (',~-I r;...~
CIVIL ACTION - LAW
COMPLAINT
AND NOW ,comes the Plaintiff, James C, Bartoli, Inc. by
I,
through its attorneys, Saidis, Guido, Shuff & Masland and
respectfully avers the followingt
1. The Plaintiff is James C. Bartoli, Inc., a corporation
organized and existing under the laws of the commonwealth of
Pennsylvania with its principal place of business located at 325
S. Cemetery Avenue, Carlisle, cumberland County, Pennsylvania.
2. Defendant, David M, Hager is an adult individual
residing at 254 Hillcrest Road, Camp Hill, Cumberland County,
Pennsylvania.
3. Defendant, Robert J. Colaizzi is an adult individual
residing at 428 Lamp Post Lane, Camp Hill, Cumberland County,
Pennsylvania.
4.. On or about April 29, 1994 the Plaintiff and the
Defendants, acting as Hager-Colaizzi, Inc. and trading as
Gigante's Restaurant, entered into a Forbearance Agreement
whereby the Plaintiff agreed to forbear from issuing a Writ of
Execution on a Judgment entered to No. 745 Civil 1993, provided
that the Defendants complied with the terms of the stipulatl.on;
a true and correct copy of said Forbearance Agreement is
SAIDIS, GUIDO,
SHU.'F &
MASLAND
26 W, Hlih SI"'CI
Cllrli/ile,PA
attached hereto and made a part hereof and marked as Exhibit
"A".
5. Along with the Forbearance Agreement, the Defendants
individually entered into a Guaranty and Suretyship AgI'eement
dated April 29, 1994 by and between the Plaintiff and the
Defendants as individuals, which Guaranty and Suretyship
Agreement provided as follows:
In the event of a default by Gigante of its
payment obligations in the aforementioned Forbearance
Agreement, Guarantors hereby voluntarily, intelligently and
knowingly empower the Prothonotary or any attorney of any
Court of Record to appear for Guarantor and to confess
judgment for $22,265.20 with interest at the rate of 1.5%
per month from February 1, 1993, and costs of suit, without
filing a Complaint and Guarantor hereby releases all errors
or defects in any such action and the entry of any such
judgment, and waives all laws exempting real or person
property from execution.,
a t~ue and correct copy of the original is attached hereto and
made a part hereof and marked as Exhibit "8".
6. This judgment is not being entered by confession
against a natural person in connection with a consumer credit
transaction.
7. A judgment has not been entered on the Guarantee and
Suretyship Agreement marked as Exhibit "8" in any other
jurisdiction.
8. Pursuant to the Forbearance Agreement as marked in
Exhibit "A" and the Guaranty and Suretyship Agreement under
Exhibit "8", if the Defendants failed to pay the sum of
aggregate total of $22,000.00 on or before February 28, 1995,
then a default would occur permitting the Plaintiff to confess
judgment.
SAIDIS, GUIIlO
& MASI.ANIl
26 W, ffiV,h Silt'\,?
<':l1rli~lr, I'A
-~-' An '''I,/[-ec/lItl! totHl of T'IIl!nty-two Th,;uullnd
Do1l6['U ($22,000.00) on 0[' belcne February 2U, 1995.
Said agg['f!qlltl! LoLlIl Bt]llll include thl! IJIIlOUllt flot fo['Lh
in (a) above.
2. AS an inducement to Plaintiff to enter into thifl
Forbearance Agreement, Defendant shall secure and deliver
concurrently herewith the personal guarantee of itr stockholders,
David M. Hager and Robert J. Colaizzi.
3. If the total amount is not timely made (i.e. actually
received by Plaintiff at itl! place of business at 413 Arch
Street, Carlisle, Pennsylvania) on or before the date it is due,
or if any check is returned for insufficient funds, Defendant
shall be in default hereunder and Plaintiff may, at its option,
and without any notice whatsoever, take whatever steps it deems
necessary or desirable to collect on the aforementioned judgment
and/or guarantee. Failure of Plaintiff to immediately issue a
Writ of Execution, or take other steps for collectionl and/or the
acceptance of any payments after a default, shall not in any way
constitute a waiver of Plaintiff's rights hereunder unless
specifically agreed to by Plaintiff in writing.
4. If, and only if, Defendant timely pays all sums as set
forth in paragraph lea) and l(b) on a timely basis, said sums
shall be accepted in full payment of all sums due and Plaintiff
shall, upon payment of docket costs end satisfaction fees by
Defendent, satisfy the aforementioned judgment.
2
GUARANTY AND SURETYSHIP AGREEMENT
FOR VALUE RECEIVED, receipt of which is hereby acknowledged,
and to induce James C. Bartoli, Inc. (hereafter "Bartoli") to enter
into a Forbearance Agreement (the terms of which are incorporated
herein by reference) in connection with a judgment that was
entered, or is about to be entered against Hager-Colaizzi, Inc. tie
Gigante's Restaurant (hereafter "Gigante") I in the Court of Common
Pleas of Cumberland County, Pennsylvania at No. 745 Civil 1993/ the
undersigned (whether one or more, "Guarantor") agree as follows~
1. Guarantor hereby guarantees and becomes surety for the
full and timely payment of principal, interest and any and all
other sums of any nature whatsoever which are due or which become
due at any time or in any manner from, under or in connection with
said jud~nent, 36 modified by the aforementioned Forbearance
Agreement, (hereafter the "Obligations"), without notice or demand
or set off or counterclaim of any kind.
This agreement is a continuing, absolute and unconditional
guaranty and suretyship of payment and not merely of collection.
The obligations of Guarantor hereunder are joint and several.
Guarantor is liable to Bartoli hereunder, end Bartoli may enforce
its rights and remedies hereunder against Guarantor, or any of them
in any combination (if more than one), at any time and from time to
time, whether Bartoli attempts to enforce or enforces Bartoli's
rights and remedies against Gigante or whether BartoH joins
Gigante in any enforcement action or proceeding.
2. Guarantor hereby voluntarily, intelligently, knowingly
and unconditionally waives (a) all notices to which Guarantor may
,
Exhibit "B"
be entitled but which may legally be waived, including without
limltation notice of (i) acceptance of this agreement, (ii)
nonpayment, protest, dishonor or default; and (b) demand for
payment, and protest I and (c) any defense available to Gigantel and
(d) any defense or circumstance which might constitute a legal or
equitable discharge of a guarantor or surety.
3. At any time and from time to time without notice to
Guarantor, and without affecting the liability of Guarantor
hereunder, Bartoli may do anyone or any combination of the
followingl (a) renew or extend the Obligations or the time for the
Borrower's payment of principal, interest or other sums due or to
become due under the Obligations, or for performance or observance
of any of the provisions of the Forbearance Agreementl (b) waive,
settle, rolease, compromise, suborclinatF.l or discharge any such
payment or performance or observance by Gigante or the obligations
of any other guarantor or surety for the Obl igations I (c) sell,
transfer, exchange, substitute, surrender, release or demand
additional collateral or security for the Obligationsl or (d)
change the Forbearance Agreement for any purpose, including without
limitation any change of or affecting the rights of Bartoli or the
rights or obligations of Gigante, or the payment of the
Obligations.
4. GUARANTOR HEREBY VOLUNTARILY, KNOWINGLY, INTELLIGENTLY
AND IRREVOCABLY HAlVES ANY AND ALL RIGHTS GUARANTOR MAY HAVE AT ANY
TIMB (WHBTHBR DIRECT OR INDIRECT, OR IlY OPERATION OF LAW OR
CONTRACT, OR OTHERWISE) TO ASSERT ANY CLAIM AGAINST GIGANTE ON
2
ACCOUNT OF ANY PAYMENT MADE UNDER THIS AGREEMENT, WHETHER llY OR FOR
SUBROGATION, Rl!:IMBURSEMENT, EXONERATION, CONTRIBUTION, INDEMNITY OR
OTHERWISE.
This agreement and Guarantor's payment obligations hereunder
will remain in effect if at any time any amount paid under or in
connection with the Obligations is rescinded or recovered by any
person or entity, or if Bartoli otherwise becomes liable to or does
repay, restore or return any such amount, to the same extent as if
such payment had not been made, and notwithstanding any termination
or cancellation of the Obligations or this dgreement, both of which
shall be deemed to be reinstated even following any such
termination or cancellation for purposes of continuation of
Guarantor's liability hereunder. Bartoli's determination as to
whether to repay, restore or return any payment shall be binding on
Guarantor.
5. Guarantor hereby agrees to payor reimburse Bartoli for
any and all out-of-pocket costs, expenses and fees at any time
incurred or paid by Bartoli in the enforcement or collection of
Guarantor's obligations under this agreement, including wlthout
limitation attorneys' fees.
6. This agreement is entered into in Cumberland County,
Pennsylvania. Any payment made hereunder shall be payable to
Bartoli, Inc., 413 Arch Street, Carlisle, Pennsylvania 17013 or
otherwise as directed from time to time by Bartoli or any assignee
of the Obligations or this agreement. Bartoli may assign this
agreement, or any rights hereunder, with any assignment of the
3
Obligations or any rights thereunder. In the event of any such
aseignment, the assignee 6h311 have the same rights and remedies as
if originally named herein. This agreement shall be governed by
and construed according to the laws of the Commonwealth of
Pennsylvania. Any suit or action brought by Guarantor may be
brought only in the courts huving jurisdiction over matters which
arise in Cumberland County, Pennsylvania, and which are seated in
Pennsylvania. Guarantor hare by voluntarily, knowingly and
intelligently waives the right to trial by jury in any action or
proceeding arisin9 from or in connection with this agreement. This
agreement and Guarantor's obligations herounder may not be
partially or entirely assigned or transferred by Guarantor, and ar.e
binding upon the respective heirs, executors, administrators,
successors and 6~signs of Guarantor, This agreement is delivered
to and inures to the benefit of Bartoli, ite successors and
assigns. If any provision hereof shall for any reason be held
invalid or unenforceable, no other provision shall be affected
thereby, and this agreement shall be construed as if the invalid or
unenforceable provision had never been a part of this agreement.
This agreement embodies the entire agreement of the parties and
cannot be changed except in writing signed by all parties.
7. IN THE EVENT OF A DEFAULT BY GIGANTE OF ITS PAYMENT
OBLIGATIONS IN THE AFOREMENTIONED FORBEARANCE AGREEMENT, GUARANTOR
HEREBY VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY EMPOWERS THE
PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR
GUARANTOR AND TO CONFESS JUDGMENT FOR $22,265.20 WITH INTEREST AT
4
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