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W. WAYDE KELLY.,
Pldntiff
v.
IN THE COUR'l' OF' COMMON PLEAS OF
CUMBF.RLAND COUNTY, PENNSYLVANIA
NO.9! :)/ ~)D C.Lc..1 Tv.-...
CIVIL ACTION - LAW
KEI'l'H L. PLASTERER and JAMIE
LEE PLASTERER,
Defendants
COMPLAINT FOR ~~SION OF JUDGMEHI-
PURSUANT TO Pa.R.C.P. 295l(b\
Plaintiff, by his attorneys, Snelbaker, Brenneman & Spare,
P. C., files this Complaint For Confession of Judgment Pursuant
to Pa.R.C.p. 2951(b) and in support thereof state the following:
1. Plaintiff is W. Wayde Kelly, an adult individual
presently residing at 101 Kelly Drive, CarliSle, Cumberland
County, Pennsylvania.
2. Defendants Keith L. Plasterer and Jamie Lee Plasterer
are adult individuals with a residence and last known address of
36 Kelly Drive, Carlisle, Cumberland County, Pennsylvania.
3. A true and correct copy of the original Guaranty dated
November 30, 1997, which Guaranty shows the Defendants'
signatures, is attached hereto and incorporated by reference
herein as "Exhibit A".
4. The attached Guaranty serves as the instrument upon
hich this Complaint For Confession of Judgment is based.
5. The Promissory Judgment Note dated November 30, 1997
l.I\W OFF10f:8 hich is referenced in the Guaranty is attached hereto and
SNf'.:l.8AKE:R.
8RENNEM^N ncorporated by reference herein as "Exhibit BU.
8: SPARE
6. Judgment entered hereby is not being entered by
LI\W OFFICl::9
SNEl.FlAKER,
BRENNEMAN
& SPARE
oonfession against II natural person in oonnection with a
oonsumer credit transaction.
7. The attached Guaranty or the Note referenced therein
have not been assigned.
8. Judgment has not been entered on the attached Guaranty
in any jurisdiotion.
9. Judgment under the Guaranty need not be entered only
after a default or the occurrence of a condition precedent.
10. The amounts due by Defendants under the Guaranty
presently are itemized as follows:
A. principal Sum: $300,000.00
B. Unpaid Interest: 24,500.00
C. collection Fees (15% of items
A and B, above) : 48.675.00
Tota 1 : $373,175.00
WHEREFORE, Plaintiff demands judgment agalnst Keith L.
Plasterer and Jamie Lee Plasterer as authorized by the warrant
in the attached Guaranty in the principal sum of $300,000.00
together with interest in the amount of $24,500.00, costs of
this action and collection fees as indicated above.
SNELBAKER, BRENNEMAN & SPARE, P. C.
By:
4
Date:
Apr.i1l7,1998
Keith o. Brenneman, Esquire
44 West Main street
Mechanicsburg, PA 17055
(717) 697-8528
Attorneys for Plaintiff
W. Wayde Kelly
-2-
L"W OFFIC5:9
SNEL.FJAKER.
BRENNEMAN
&- SPARE
W. WAYDE KELLY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO . ~ S. :J j S'D C.cvJU""
v.
KEITH I" PLASTERER and JAMIE
LEE PLASTERER,
CIVIL ACTION - LAW
Defendants
~ESSION OF JUDGMENT
Pursuant to the authority contained in the warrant of
attorney, the original or a copy of which is attached to the
Complaint in this action, I hereby appear for the Defendants
Keith L. Plasterer and Jamie Lee Plasterer and confess jUdgment
in favol' of the Plaintiff and against the Defendants as follows:
Principal Sum: $300,000.00
Unpaid Interest: 24,500.00
Collection Fees (15% of
the above): 48.675.00
Total: $373,175.00
Plus Costs of this Action.
SNELBAKER, BRENNEMAN & SPARE, P. C.
By:
~~.~~. -
Kelth O. Brenneman, Esquire
Attorney for Defendants
Pa. Supreme ct. ID #47077
44 West Main Gtreet
Mechanicsburg, PA 17055
(717) 697-8528
April .4) (f? , 1998.
Date:
April 17, 1998
JUdgment entered as above
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NATURE or GUARANTY. Guarantors' liability under this
Guaranty shall be open, unlimited and continuous for so long 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 acceleration 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 Obligee without the necessity of any acceptance by
Obligee, or any notice to Guarantors or to Obligor, and will
continue in full force until all indebtedness incurred or
contracted before receipt by Obligee 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 Obligee at the
address of Obligee listed above or such othe~ place as Obligee
may designate in writing. This Guaranty may be revoked only with
respect to Obligation incurred or cOl1tracted by Obligor, or
acquired by Obligee thirty (30) days or more after the date on
which written notice of revocation is actually received by
Obligee. No notice of revocation hereof shall be effective as to
any obligatlon: (a) existing at the date of receipt of such
-2-
notice; (b) incurred or contracted by Obligor, or acquired by
Obligee, within thirty (30) days after receipt of such notice;
(c) now existing or hereafter created pursuant to or evidenced by
any loan agreement or commitment under which Obligor is or may
become obligated to Obligee; 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 Obligee of
written notice of the death of Guarantor. Any payment by
Guarantors with respect to the Obligation guaranteed shall not
reduce the maximum obligation hereunder, unless written notice to
that effect be actually received by Obligee 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 Obligee's 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 aB any
-3-
of the guaranteed Obligation remains unpaid.
GUARANTORS' AUTHORIZATION TO OBLIOEE. Guarantors authorize
Obligee, 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,
oompromise, 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; (e) 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.
OUARANTORS' REPRESENTATIONS AND WARRANTIES. Guarantors
represent and warrant to Obligee 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 Obligee; (e) Obligee has made no representation to Guarantors
as to the creditworthiness of Obligor; (d) upon Obligee's
request, Guarantors will provide to Obligee financial and credit
information in form acceptable to Obligee, and all such financial
information provided to Obligee 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 of Guarantors
-4-
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Guarantors hereby forever waive and relinquish in favor of
Obligee and Obligor, and their respective successors, any claim
or right to payment Guarantors may now have or hereafter have or
acquire against Obligor:', by subrogation or otherwise, so that at
no time snaIl 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 Obligee from bringing any action,
including a claim for deficiency, against Guarantors, before or
after Obligee'S comroencement or completion of any foreclosure
action, either judicially or by exercise of a power of sale; (b)
any election of remedies by Obligee which destroys or otherwise
adversely affects Guarantors' subrogation rights or Guarantors'
rights to proceed against Obligor for reimbursement, including
without limitation, any 10sR 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 Obligee against Guarantors is commenced there is
-6-
outstanding Obligation of Obligor to Obligee which is not barred
by any applicable statute of limitations; 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 shall 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 deductions to the amount guaranteed under this
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 Obligee, shall be prior
to any claim that Guarantors may now have or hereafter acquire
-7-
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against obligor, whether or not Obligor becomes insolvent.
Guarantors hereby expressly subordinate any claim Guarantors may
have against Obligol', upon any account whatsoever, to any claim
that Obligee 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 Obligee
and Guarantors shall be paid to Obligee and shall be first
applied by Obligee to the Obligation of Obligor to Obligee.
Guarantors do hereby assign to Obligee 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 Obligee full payment in legal tenaer of the
Obligation. If Obligee so requests, 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
Obligee. Guarantors agree, and Obligee hereby is 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 Obligee
deems necessary or appropriate to perfect, preserve and enforce
its rights under this Guaranty.
CONFESSION or 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
oomplaint fHad, as of any term, oonfess 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 principal 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 Obligee
to protect and preserve Obligee's 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
sought to be charged or bound by the alteration or
-9-
amendment.
Applica~le Law. This Guaranty has been deliverad
to Obligee and accepted by Obligee in the Commonwealth
of Pennsylvania. If there is a lawsuit, Guarantors
agree upon Obligee's request to submit to the
jurisdiction of the courts of CUMBERLAND County,
Commonwealth of Pennsylvania. Obligee 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 Fees; Expenses. Guarantors agree to
pay upon demand all of Obligee's costs and expenses,
including attorneys' fees and Obligee's legal expenses,
incurred in connection with the enforcement of this
Guaranty. Obligee may pay someone else to help enforce
this Guaranty, and Guarantors shall pay the costs and
expenses of such enforcement. Costs and expenses
include Obligee's attorneys' fees and legal expenses
whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankr'uptcy proceedings (and
including efforts to modify or vacate any automatic
stay or injunction), appeals, and any anticipated post-
jUdgment collection services. Guarantors also shall
pay all court costs and such additional fees as may be
-10-
directed by the court.
Notio... All notices required to be given by
either party to the other under this Guaranty shall be
in writing and shall be effective when actually
delivered or when deposited with a nationally
recognized overnight courier, or when deposited in th€l
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 to SUch other
addresses as either party may designate to the other in
writing. For notice purposes, Guarantors agree to keep
Obligee informed at all times of Guarantors' current
address or addresses.
Interpretation. The words "Guarantors", "Obligor"
and "Obligee" 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 provision of this Guaranty to be invalid or
unenforceable as to ~ny 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
one or more of Obligor or Guarantors are corporations
-11-
or partnerships, it is not necessary for obligee 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 profeBs~d exercise
of such powers shall be guaranteed under this Guaranty.
waiver. Obligee shall not be deemed to have
waived any rights under this Guaranty unless such
waiver is given in writing and signed by Obligee. No
delay or omission on the part of Obligee in exercising
any right shall operate as a waiver of such right or
any other right. A waiver by Obligee of a provision of
this Guaranty shall not prejudice or constitute a
waiver of Obligee's right otherwise to demand strict
compliance with that provision or any other provision
of this Guaranty. No prior waiver by Obligee, nor any
course of dealing between Obligee and Guarantors shall
constitute a waiver of any of Obligee's rights or of
any of Guarantors' obligations as to any future
transactions, Whenever the consent of Obligee is
required under this Guaranty, the granting of such
consent by Obligee in any instance shall not constitute
continuing consent to subsequent instances where such
consent is required and in all cases such consent may
be granted or withheld in the sole discretion of
Obligee.
-12-
EXPLANATION OF RIGHTS
(FUll Confession)
A. I/we, the undersigned Guarantors, clearly and specifically
understand that by signing the above Guaranty dat&d November
, 1997, in the amount of Three Hundred Thousand and
NO/100 ($300,000.00) Dollars in favor of W. WAYDE KELLY which
contains a Confession of Judgment clause:
1. I/we am/are authorizing W. WAYDE KELLY, Obligee, to
enter a judgment against me/us in his/her favor which will give
the Obligee a lien upon any real estate which I/we may own,
including our home and personal residence;
2. I/we give 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 W. WAYDE KELLY 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 to challenge such jUdgment, should
the Obligee enter it, except by a proceeding 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.
B. I/we know and understand that it is the Confession of
Judgment clause in the above-described Guaranty which gives
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Obligee the rights enumerated in sub-parligraphs 1 through 5 of
paragraph A above.
IF I/WE DO NOT SIGN THE ABOVE GUARANTY WHICH CONTAINS A
CONFESSION OF JUDGMENT CLAUSE, I/WE UNDERSTAND THA'r I/WE WOULD
HAVE THE FOLloOWINGI
1. The right to have notice and an opportunity to be heard
prior to judgment;
2. The r.ight to have the burden of proving default rest
upon the Obligee 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-described 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 aign 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 the circumstances described in
paragraph A above.
D. Each of the undersigned hereby certifies that (he) (she)
signatories to the foregoing Guaranty dated on the cl.ay
of November, 1997, in favor of W. WAYDE KELLY which has a
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PROMISSORY JUDGMENT NOTE
$300,000.00
November _~D__, 1997
On demand after date, CARLISLE SPORTS EMPORIUM, INC., the
. undersigned Maker, hereby promises to pay to W. WAYDE KELLY, or
his assigns, the sum of Three Hundred Thousand and No/lOO
($300,000.00) 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 30th day
of each calendar month, the first such payment to be due and
payable on November 30, 1997. In addition to the foregoing,
Maker promises and agrees to pay the sum of $300.00 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 sum and interest,
wi th costs of the action, with or without declaration or
complaint, release of all errors, without stay of execution, and
wi th 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 Note and it voluntarily condemns the same and authorizes the
EXIIlIIlT 1\
Prothonotary to enter said voluntary condemnation upon any Writ
of Execution issued upon tho jUdgment or judgmento enterod
hereon I and said Maker further agrees that any property, real,
personal or mixod, 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 relief from any and all
appraioement, stay or exemption laws of any state now in foroe or
hereafter enaoted.
WAIVER
IN EXECUTING THIS PROMISSORY JUDGMENT NOTE, THE MAKER HEREBY
DECLARES THAT IT UNDERSTANDS THE TRANSACTION, AND KNOWINGLY AND
VOLUNTARILY WAIVES ITS RIGH'I'S 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 Not.e to be executed by its President,
attested by its Secretary and impressed hereon its corporate seal
the day and yoar first written above intending to be legally
bound hereby.
A.:~.
- .......~.
l. ~~__
Secretary
CARLISLE SPORTS EMPORIUM,
B -~~--
r_- Pres dent
INC.
(SEAL)
(Corpol:'ate Seal)
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