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HomeMy WebLinkAbout98-02176 ~ ~ 1 , / / / , ,,/ ~ LAW O"PICES SNELDI\I<ER. BRENNEM,\N & SPARE which this Complaint For Confession of Judgment is based. 6. The Promissory Judgment Note dated November 7, 1997 which is referenced in the Guaranty is attached hereto and incorporated by reference herein as "Exhibit B". 7. Judgment entered hereby is not being entered by confession against a natural person in connection with a consumer credit transaction. 8, The attached Guaranty or the Note referenced therein have not been assigned. 9. Judgment has not been entered on the attached Guaranty in any jurisdiction. 10. Judgment under the Guaranty need not be entered only after a default or t.he occurrence of a condition precedent. 11. The amounts due by Defendants under the Guaranty presently are itemized as follows: A. Principal Sum: $150,000.00 B. Unpaid Interest: 7,000.00 C. Collection Fees (15% of items A and B, above) : -23.550.00 Tota 1 : $180,550.00 WHEREFORE, Plaintiffs demand judgment against Defendants Keith L. Plasterer and Jamie Lee Plasterer as authorized by the warrant in the attached Guaranty in the principal sum of -2- liYf\RANT~ THIS GUARANTY made, executed and delivered this of November, 1997 by: "1 day ,- KEITH L. PLASTERER and JAMIE LEE PLASTERER, hereinafter called "Guarantors", to MARY A. KELLY and W. WAYDE KELLY, as joint tenants with right of survivorship and not as tenants in common, of 101 Kelly Drive, Carlisle, PA 17013-9001, hereinafter called "Obligees": WITNESSETH: WHEREAS, KLP ENTERPRISES, INC., (hereinafter called "Obligor") is obligated to Obligees under a certain promissory Judgment Note of even date herewith (hereinafter called "Note") in the principal amount of $150,000.00, the obligation as documented by said Note hereinafter called "Obligation"; and WHEREAS, Obligor has offered the guarantee of Guarantors to Obligees in order to enhance Obligees' assurance of payment of the Obligation; NOW, THEREFORE, in consideration of the sum of One and NO/l00 ($1.00) Dollar in hand paid by Obligees to Guarantors, the receipt of which is hereby acknowledged by Guarantors, for other good and valuable consideration and intending to be legally bound hereby, Guarantors hereby jointly and severally and absolutely and unconditionally guarantee and promise to pay to Obligees or their order, in legal tender of the United States of America, one hundred percent (100%) of the obligation of Obligor on the terms and conditions set forth in this Guaranty. EXIIIBlT A NATURE or GUARANTY. Guarantors' liability under this Guaranty shall be open, unlimited and oontinuous for so 101lg as this Guaranty remains in force. Guarantors intend to guarantee at all times the performance and prompt payment When due, Whether at maturity or earlier by reason of aoceleration or otherwise, of all the Obligation. Accordingly, no payments made upon the Obligation will discharge or diminish the continuing liability of Guarantors in connection with any remaining portions of the Obligation. DURATION OF GUARANTY. This Guaranty will take effect when received by Obligees without the necessity of any acceptance by Obligees, or any notice to Guarantors or to Obligor, and will continue in full force until all indebtedness incurred or contracted before receipt by Obligees of any notice of revocation shall have been fUlly and finally paid and satisfied and all other Obligations of Guarantors under this Guaranty shall have been performed in full. If Guarantors elect to reVoke this Guaranty, Guarantors may only do so in writing. Guarantors' written notice of reVocation must be delivered to Obligees at the address of Obligees listed above or SUch other place as Obligees may designate in writing, This Guaranty may be reVoked only with respect to Obligation incurred or contracted by Obligor, or acquired by Obligees thirty (30) days or more after the date on which written notice of reVocation is actually received by Obligees. No notice of reVocation hereof shall be effective as to any Obligation: (a) existing at the date of receipt of SUch -2- notice; (b) incurred or contracted by Obligor, or acquired by Obligees, within thirty (30) days after receipt of such notice; (c) now existing or hereafter crebted pursuant to or evidenced by any loan agreement or commitment under which Obligor is or may become obligated to Obligees; or (d) renewals, extensions, consolidations, substitutions, and refinancings of the foregoing. The death of either or both of the Guarantors shall not operate as a revocation of liability hereunder of the estate of either Guarantor as to transactions entered into or Obligation created subsequent to such death until actual receipt by Obligees of written notice of the death of Guarantor. Any payment by Guarantors with respect to the Obligation guaranteed shall not reduce the maximum obli,gation hereunder, unless written notice to that effect be actually received by Obligees at or prior to the time of such payment. This Guaranty shall bind the estate of each of the Guarantors as to the Obligation created both before and after the death or incapacity of either Guarantor, regardless of Obligees' actual notice of either Guarantor's death. Subject to the foregoing, a deceased Guarantor's executor or administrator or other legal representative may terminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect. It is anticipated that fluctuations may occur in the aggregate amount of the Obligation covered by this Guaranty. This Guaranty is binding upon each Guarantor, jOintly and severally, and on each Guarantor's heirs, personal representatives, successors and assigns so long as any -3- of the guaranteed Obligation remains unpaid. GUARANTORS' AUTHORTZATION TO OBLIGBES. Guarantors authorize Obligees, either before or after any revocation hereof, without notice or demand and without lessening Guarantors' liability under this Guaranty, from time to time: (a) to alter, compromise, renew, extend, accelerate or otherwise change one or more times the time for payment or other terms of the Obligation or any part of the Obligation; extensions may be repeated and may be for longer than the original loan term; (b) to determine how, when and what application of payments and credits shall be made on the Obligation; (c) to sell, transfer, assign or grant participations in all or any part of the Obligation; and (d) to assign or transfer this Guaranty in whole or in part. GUARANTORS' REPRESENTATIONS AND WARRANTIES. Guarantors represent and warrant to Obligees that (a) no representations or agreements of any kind have been made to Guarantors which would limit or qualify in any way the terms of this Guaranty; (b) this Guaranty is executed at Obligor's request and not at the request of Obligees; (e) Obligees have made no representation to Guarantors as to the creditworthiness of Obligor; (d) upon Obligees' request, Guarantors will provide to Obligees financial and credit information in form acceptable to Obligees, and all such financial information provided to Obligees shall be true and correct in all material respects and fairly presents the financial condition of Guarantors as of the dates thereof, and no material adverse change has occurred in the financial condition -4- of Guarantors since the date of the financial statements; and (e) Guarantors have established adequate means of obtaining from Obligor on a continuing basis information regarding Obligor's financial condition. Guarantors agree to keep adequately informed from such means of any facts, events or circumstances which might in any way affect Guarantors' risks under this Guaranty, and Guarantors further agree that, absent a request for information, Obligees shall have no obligation to disClose to Guarantors any information or documents acquired by Obligees in the course of their relationship with Obligor. GUARANTORS' WAIVERS. Except as prohibited by applicable law, Guarantors waive any right to require Obligees: (a) to make any presentment, protest, demand, or notice of any kind, inclUding notice of any nonpayment of the Obligation or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Obligor or Obligees in connection with the Obligation; (b) to resort for payment or to proceed directly or at once against any person, including Obligor; (c) to proceed directly against or exhaust any collateral held by Obligees from Obligor, any other guarantor, or any other person; Cd) to pursue any other remedy within Obligees' power; or (e) to commit any act or omission of any kind, or at any time, with respect to any matter whatsoever. If now or hereafter (a) Obligor shall be or become insolvent, and (b) the Obligation shall not at all times until paid be fully secured by collateral pledged by Obligor, -5- Guarantors hereby forever waive and reHnquish in favor of Obligees and obligor, and their respective successors, any claim or right to payment Guarantors may now have or hereafter have or acquire against Ob1i.gor, by subrogation or otherwise, so that at no time shall Guarantors be or become a "creditor" of Obligor within the meaning of 11 U.S.c. Section 547(b), or any successor provision of the Federal bankruptcy laws. Guarantors also waive any and all rights or defenses ariSing by reason of (a) any "one action" or "anti-deficiency" law or any other law which may prevent Obligees from bringing any action, including a claim for deficiency, against Guarantors, before or after Obligees' commencement or completion of any foreclosure action, either jUdicially or by exercise of a power of sale; (b) any election of remedies by Obligees which destroys or otherwise adversely affects Guarantors' subrogation rights or Guarantors' rights to proceed against Obligor for reimbursement, including without limitation, any loss of rights Guarantors may suffer by reason of any law limiting, qualifying or disCharging the Obligation; (c) any disability or other defense of Obligor, of any other guarantor, or of any other person, or by reason of the cessation of Obligor's liability from any cause whatsoever, other than payment in full in legal tender, of the Obligation; (d) any right to claim discharge of the Obligation on the basis of unjustified impairment of any collateral for the Obligation; (e) any statute of limitations, if at any time any action or suit brought by Obligees against Guarantors is commenced there is -6- out~tanding Obligation of Obligor to Obligees which is not barred by any applicable statute of limitationSi or (f) any defenses given to guarantors at law or in equity other than actual payment and performance of the Obligation. If payment is made by Obligor, whether voluntarily or otherwise, or by any third party, on the obligation and thereafter Obligor is forced to remit the amount of that payment to Obligor's trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors, the Obligation sh~ll be considered unpaid for the purpose of enforcement of this Guaranty. Guarantors further waive and agree not to assert or claim at any time any deductlons to the amount guaranteed under thi.s Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar rights, whether such claim, demand or right may be asserted by the Obligor, the Guarantors, or both. GUARANTORS' UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantors warrant and agree that each of the waivers set forth above is made with Guarantors' full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or pUblic policy, such waiver shall be effective only to the extent permitted by law or pUblic policy. SUBORDINATION OF OBLIGOR'S DEBTS TO GUARANTORS. Guarantors agree that the Obligation of Obligor to Obligees, shall be prior to any claim that Guarantors may now have or hereafter acquire -7- against Obligor, whether or not Obligor becomes insolvent. Guarantors hereby expressly subordinate any claim Guarantors may have against Obligor, upon any account whatsoever, to any claim that Obligees may now or hereafter have against Obligor. In the event of insolvency and consequent liquidation of the assets of Obligor, through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Obligor applicable to the payment of the claims of both Obligees and Guarantors shall be paid to Obligees and shall be first applied by Obligees to the Obligation of Obligor to Obligees. Guarantors do hereby assign to Obligees all claims which they or either of them may have or acquire against Obligor or against any assignee or trustee in bankruptcy of Obligor; provided, however, that such assignment shall be effective only for the purpose of assuring to Obligees full payment in legal tender of the Obligation. If Obligees so request, any notes or credit agreements now or hereafter evidencing any debts or obligations of Obligor to Guarantors shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Obligees. Guarantors agree, and Obligees hereby are authorized, in the name of Guarantors, from time to time to execute and file financing statements and continuation statements and to execute such other documents and to take such other actions as Obligees deem necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. CONFESSION OF JUDGMENT. Guarantors hereby irrevocably -8- authorize and empower any attorney or the Prothonotary or Clerk of any Court in the Commonwealth of Pennsylvania, or elsewhere, to appear at any time for Guarantors, and with or without complaint filed, as of any term, confess or enter judgment against Guarantors for the entire principal balance of this Guaranty and all accrued interest, together with costs of suit, and an attorney's commission of fifteen percent (15%) of the unpaid prindipal balance and accrued interest for collection, but in any event not less than Five Hundred Dollars ($500)/ and for so doing, this Guaranty or a copy of this Guaranty verified by affidavit shall be sufficient warrant. The authority granted in this Guaranty to confess judgment against Guarantors shall not be exhausted by any exercise of that authority, but shall continue from time to time and at all times until payment in full of all amounts due under this Guaranty. The authority granted in this Guaranty to confess judgment shall not be limited to any prior default by Guarantors or Obligor, but may be exercised by Obligees to protect and preserve Obligees' rights against Guarantors. MISCELLANEOUS PROVISIONS. The fOllowing miscellaneous provisions are a part of this Guaranty: Amendments. This Guaranty constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties -9- sought to be charged or bound by the alteration or amendment. Applioable La.,. This Guaranty has beon deliverod to Obligees and acoepted by Obligees in the Commonwealth of Pennsylvania, If there is a lawsuit, Guarantors agree upon Obligees' request to submit to the jurisdiction of the courts of CUMBERI~ND County, Commonwealth of Pennsylvania. Obligees and Guarantors hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Obligee or Guarantors against the other. This Guaranty shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Attorney's raes; Expenses. Guarantors agree to pay upon demand all of Obligees' costs and expenses, including attorneys' fees and Obligees' legal expenses, incurred in connection with the enforcement of this Guaranty. Obligees may pay someone else to help enforce this Guaranty, and Guarantors shall pay the costs and expenses of such enforcement. Costs and expenses include Obligees' attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (and including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. -10- Guarantors also shall pay all oourt oosts and suoh additional fees as may be direoted by the oourt. Notio... All notioes required to be given by either party to the other under this Guaranty shall be in writing and shall be effective when aotually delivered or when deposited with a nationally reoognized overnight oourier, or when deposited in the United states mail, first class postage prepaid, addressed to the party to whom the notice is to be given at the address shown above or t.o such other addresses as either party may designate to the other in writing. For notice purposes, Guarantors agree to keep Obligees informed at all times of Guarantors' current address or addresses. Interpretation. The words "Guarantors", "Obligor" and "Obligees" include the heirs, successors, assigns and transferees of each of them. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the provisions of this Guaranty. If a court of competent juriSdiction finds any provi.sion of this Guaranty to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances, and all provisions of this Guaranty in all other respects shall remain valid and enforceable. If any -11- '..-;'.... one or more of Obligor or Guarantors are corporations or partnerships, it is not necessary for Obligees to inquire into the powers of Obligor or Guarantors or of the officers, directors, partners, or agents acting or purporting to act on their behalf, and any Obligation made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. "aiver. Obligees shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and signed b~' Obligees. No delay or omission on the part of Obligees in exercising any right shall operate as a waiver of such right or any other right. A waiver by Obligees of a provision of this Guaranty shall not prejudice or oonstitute a waiver of Obligees' right otherwise to demand strict oompliance with that provision or any other provision of this Guaranty. No prior waiver by Obligees, nor any course of dealing between Obligees and Guarantors shall constitute a waiver of any of Obligees' rights or of any of Guarantors' obligations as to any future transactions. Whenever the consent of Obligees is required under this Guaranty, the granting of such consent by Obligees in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole -12- \ I \ \ I EXPLANATION OF RIGHTS (Full confession) A. I/we, the undersigned Guarantors, clearly and specifically understand that by signing the above Guaranty dated November , 1991, in the amount of One Hundred Fifty Thousand and No/100 ($150,000.00) Dollars in favor of MARY A. KELLY and W. WAY DE KELLY which contains a Confession of Judgment clause: 1. I/wa am/are authorizing MARY A. KELLY and W. WAYDE KELLY, or the survivor of them, Obligees, to enter a judgment against me/us in his/her/their favor which will give the Obligees a lien upon any real estate which I/we may own, inclUding my/our home and personal resi.dence; 2. I/we gi.ve up the right to any notice or opportunity to be heard on the entry of said judgment on the record of the court; 3. I/we agree that MARY A, KELLY and W. WAYDE KELLY, or the survivor of them, can enter this judgment without any proof of non-payment or other default on my/our part; 4. I/we will subject all of my/our property, both personal property and real estate, to execution (and Sheriff'S sale) pursuant to this judgment, prior to proof of non-payment or other default on my/our part; 5. I/we will be unable t.o challenge such judgment, should the Obligees enter it, except by a proce~ding to open or strike the judgment; and that such a proceeding will result in attorney's fees and costs which I/we will have to pay. -14- , ' 8. I/we know and understand that it is the Confassion ot Judgment clause in the above-described Guaranty whiL1h give. Obligees the rights enumerated in sub-paragraphs 1 through !l of paragraph A above. IF I/WE DO NOT SIGN THE ABOVE GUARANTY WHICH CONTAINS ^ CONFESSION 0.' JUDGMENT CLAUSE, I/WE UNDERSTAND 'f"^,f l/WE WOULD HAVE THE FOLLOWING: 1. The right to have notice and an opportunity to be heard prior to judgment; 2. The right to have the burden of prOVing default rest upon the Obligees before my/our property could be exposed to execution; 3. The right to avoid the additional expense of attorney's fees and costs incident to opening or striking off a confessed judgment. C. Fully and completely understanding these rights which I/we and each of us have prior to signing the above-desoribed Guaranty and clearly aware that these rights will be given up, waived, relinquished and abandoned if I/we sign said Guaranty, I/we nevertheless freely and voluntarily choose to sign said Guaranty, my/our intention being to give up, waive, relinquish and abandon my/our known rights (as described in paragraph B above) and subject myself/ourselves to tho circumstances described in paragraph A above. D. Each of the undersigned hereby certifies that (he) (she) -l!i- PROMISSORY JUDGMENT NOTE $150,000.00 November ~___, 1997 On demand after date, RLP ENTERPRISES, INC., the undersigned Maker, hereby promises to pay to MARY A. KELLY and W. WAYDE KELLY, joint tenants with right of survivorship and not as tenants in common, or their assigns, the sum of One Hundred Fifty Thousand and NO/lOO ($150,000.00) DOllars, without defalcation, value received, with interest at the rate of fourteen per centum (14%) per annum from the date hereof, said interest to be paid monthly on the 7th day of e3ch calendar month, the first such payment to be due and payable on December 7, 1997. In addition to the foregoing, Maker promises and agrees to pay the sum of $165.00 as a late charge for each monthly installment of interest which remains unpaid more than five (5) calendar days after its due date aforesaid; said charge being as liquidated damages in lieu of actual damages and not as a penalty. And further, said Maker does hereby authorize and empower the Prothonotary or any attorney of any court of record of Pennsylvania or elsewhere at any time or times and without default to appear for and enter jUdgment against it for the above principal slim and interest, with costs of the action, with or without declaration or complaint, release of all errors, without stay of execution, and with fifteen per centum (15%) added for collection fees; and said Maker also waives the right of inquisition on any real estate which may be levied upon to collect the obligations evidenced by this tlote and it vo luntar i 1 y condemns the same and author i zes the EXHIBIT B Prothonotary to enter said voluntary condemnation upon ~ny Writ of Execution issued upon the judgment or judgments entared hereon; and said Maker further agrees that any property, real, personal or mixed, may be sold on, through and by any Writ of Execution issued upon the judgment or jUdgments entered hereon; and further waives and releases all reliet' from any and all apprais~ment, stay or exemption laws of any state now in force or hereafter enacted, WAIVER IN EXECUTING THIS PROMISSORY JUDGMENT NOTE, THE MAKER HEREBY DECLARES THAT IT UNDERSTANDS THE TRANSACTION I AND KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO CONTEST THE ENTRY OF JUDGMENT AGAINST IT ON AND UNDER SAID NOTE, AND DOES HEREBY CONSENT TO THE ENTRY OF JUDGMENT BY CONFESSION WITHOUT DEFAULT AS ABOVE PROVIDED AND AUTHORIZED. IN WITNESS WHEREOF, the undersigned Maker has caused this Promissory Judgment Note to be executed by its President, attested by its Secretary and impressed hereon its corporate seal the day and year first written above intending to be legally bound hereby. ATTEST: "~ " ' r'~ ~._~ - Secretary KLP ENTERPRISES, INC. ....=\..,- -----. ,~:,.;".~" .~ By --~~ ~ , resident (SEAL) (Corporate Seal) -2- J J ~ e ~ (l'" '<l ;,:. ,. g ~ I" ( , [ t~,i ( '" I!;' l;, I , 1.1, () ".~ , (>, \'}o , ~ -L " \'':1 '1 , ~ .. ~ '" , ~ '.~ I l,,--, (", , f!' t" , , ,','