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W. WAYDE KELLY,
Pla1.ntiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
, (I, "1-'
NO. '7 j'. .) / 1'.1 ,......( .,,~.
KEITH L. PLASTERER and JAMIE
LEE PLASTERER,
CIVIL ACTION - LAW
Defendants
~INT FOR CONFESSION Q~~~EHT-
PURSUANT TO Pa.R.c~ 2951(b)
Plaintiff, by his attorneys, Snelbaker, Brenneman & Spare,
P. C., files this Complaint For Confession of JUdgment Pursuant
to Pa.R.c.p. 295l(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 12, 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
which th1.s Complaint For Confession of Judgment is based.
5. The Promissory Judgment Note dated November 12, 1997
tAW OI'~'lOr.!1 which is referenced in the Guaranty is attached hereto and
SNEl.nAKER,
BRENNli:MAN incorporated by reference herein as "Exhibit B".
Cc SPARE
6. JUdgment entered hereby is not being entered by
LAW OFFIOES
SNELRAKEn,
BilENNEMAN
8: SPARE
oonfession against a natural person in aonneotion with a
oonsumer oredit transaction.
7. The attaohed Guaranty or the Note referenoed therein
have not been assigned.
8. Judgment has not been entered on the attached Guaranty
in any jurisdiction.
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: $100,000.00
B. Unpaid Interest: 8,169.00
C. Collection Fees (15% of items
A and B, above) : 16.225.35
Total: $124,394.35
WHEREFORE, Plaintiff demands judgment against Defendants
Keith L. Plasterer and Jamie Lee Plasterer as author.ized by the
warrant in the attached Guaranty in the prinoipal sum of
$100,000.00 together with interest in the amount of $8,169.00,
oosts of this action and collection fees as indicated above.
Date: April 17, 1998
SNELBAKER, BRENNEMAN & SPARE, P. C.
By: \~~1fI1~
Ke~o. Brenneman, Esquire
44 West Main Street
Mechanicsburg, PA 17055
(717) 697-8528
Attorneys for Plaintiff
~I. Wayde Kelly
-2-
GUARANTY
THIS GUARANTY made, executed and delivered this
of November, 1997 by:
KEITH L. PLASTERER and JAMIE LEE PLASTERER,
hereinafter called "Guarantors",
/.)...
day
to
W. WAYDE KELLY of 10l. Kelly Drive, Carlisle,
PA 17013-9001, hereinafter called "Obligee":
WITNESSETH:
WHEREAS, CARLISLE SPORTS EMPORIUM, INC., (hereinafter called
"Ob).igor") is obligated to Obligee under a certain Promissory
Judgment Note of even date herewith (hereinafter called "Note")
in the principal amount of $100,000.00, the obligation as
documented by said Note hereinafter called "Obligation"; and
WHEREAS, Obligor has offered the guarantee of Guarantors to
Obligee in order to enhance Obligee'S assurance of payment of the
Obligation;
NOW, THEREFORE, in consideration of the sum of One and
No/I00 ($1.00) Dollar in hand paid by Obligee 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 Obligee or
his 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.
EXHIBIT A
NATURE or GUARANTY. Guarantors' liability under this
GUaranty ghall 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
oontinue 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 revooation must be delivered to Obligee at the
address of Obligee listed above or such other place as Obligee
may designate in writing. This Guaranty may be revoked only with
respect to Obligation incurred or contracted by Obligor, or
acquired by ObHgee 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 Obligation: (al existing at the date of receipt of such
-2-
notioe; (b) incurred or contracted by Obligor, or acquired by
Obligee, within thirty (JO) 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 i~ or may
become obligated to Obligee; or (d) renewals, extensions,
oonsolidations, 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 suoh 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 Gua1:'antor's heirs,
personal representatives, successors and assigns so long as any
-J-
of the guaranteed Obligation remains unpaid.
GUARANTORS' AUTHORIZATION TO OBLIGEE. 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,
compromise, renew, eKtend, accelerate or otherwise change one or
more times the time for payment or other terms of the Obligation
or any part of the Obligation; eKtensions 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 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; (0) 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 correot 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 oondition of Guarantors
-4-
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 11 request for information,
Obligee shall have no obligation to disclose to Guarantors any
information or documents acquired by Obligee in the course of its
relationship with Obligor.
GUARANTORS' WAIVERS. Except as prohibited by applicable
law, Guarantors waive any right to require Obligee: (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 Obligee 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 Obligee from
Obligor, any other guarantor, or any other person; (d) to pursue
any other remedy within Obligee's power; or (e) to commit any act
01' omission of any kJ..d, 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 seoured by collateral pledged by Obligor,
-5-.
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 th&t 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 Obligee from bringing any action,
including a claim for deficiency, against Guarantors, before or
after Obligee's commencement 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 loss of rights Guarantors may suffer by
reason of any law limiting, qualifying or discharging the
Obligationl (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 hy Obligee against Guarantors is commenced there is
-6-
outstanding obHgation of Ob1.i.gor 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 ObHgee, 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 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 sllch assignment shall be effecti va only for the purpose of
assllring to Obligee full payment in legal tender 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 OF JUDGMENT. Guarantors hereby irrevocably
-8-
authorize and empower any attorney or the Prothonotary or Clerk
of any Court in tha Commonwealth of Pennsylvania, or elsewhere,
to appear at any time for Guarantors, and with or without
complaint filed, as of any term, ~onfess 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.
Applicable LaW. This Guaranty has been delivered
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'. Fee.; Expenses. Guarantors agree to
pay upon demand all of Obligee's costa and expenses,
including attorneys' fees and Obligee's legal expenses,
incurred in connection with the enforcement of this
Guaranty. Obligee may pay eomeone else to help enforce
this Guaranty, and Guarantors shall pay the costs and
expenaes 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 bankruptcy 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-
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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 pI'ofessed 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 deaHng 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 oonsent may
be granted or withheld in the sole discretion of
Obligee.
-12-
EXPLANATION OF RIGHTS
(Full Confession)
A. I/we, the undersigned Guarantors, olearly and specifically
understand that by signing the above Guaranty dated November
, 1997, in the amount of One Hundred Thousand and NO/lOO
($100,000.00) Dollars in favor of W. WAYDE KELLY which contains a
Confession of Judgment clause:
1. I/we ami are author! zing W. WA YD'F, 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. Ilwe 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. WA'iOE 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
-14-
Obligee the rights enumerated in sub-paragraphs 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 THAT I/WE WOULD
"AVE 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 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 sign said Guaranty,
my/our intention being to give up, waive, relinquish and abandon
my/our known rights (aB 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 /.2. day
of November, 1997, in favor' of W. WAYDE KELLY which has a
-15-
Confession of Judgment Clause entered has earnings of $10,000.or
more per year.
WITNESSED BY:
WE HAVE READ THIS ENTIRE FORM AND
WE FULLY UNDERSTAND ITS CONTENTS:
( /~~:;:'e'
, ..~I .
/0; /.,
~~~(Pl:::~~~i;"-{t:"L( 1
( J;i /1(U
Jamie
, ~
--
-16-
PROMISSORY JUDGMENT ~QXE
$100,000.00
~ovember 1.2.. , 1997
On demand after date, CARl,ISLE SPORTS EMPORIUM, INC., the
undersigned Maker, hereby promises to pay to W. WAYDE KELLY, or
his assigns, the sum of One Hundred Thousand and No/I00
. ($100,000.00) 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 12th day
of each calendar month, the first such payment to be due and
payable on December 12, 199'7. In addition to the foregoing,
Maker promises and agrees to pay the sum of $150.00 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,
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 Note and it voluntarily condemns the same and authorizes the
EXHIBIT Il
;
Prothonotary to enter said voluntary condemnation upon any Writ
of Exeoution issued upon the jUdgment or jUdgments entered
hereon; and said Maker further agrees that any property, real,
personal or mixed, may be sold on, through and by any Writ of
Exooution issued upon the judgment o.r jUdgments entered hereon;
and further waives and releases all relief from any and all
appraisement, stay or exemption laws of any state now in foroe or
hereafter enacted.
WAIVER
IN EXECUTING THIS PROMISSORY JUDGMENT NOTE, THE MAKER HEREBY
DECLARES THAT IT UNDERSTANDS THE TRANSACTION, AND KNOWINGI,Y 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 execut.ed by its P.resident,
attested by its Secretary and impressed hereon its corporate seal
the day and year first written above intending to be legally
bound hereby.
ATTEST :~__,
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L- Secretary
CARLISLE S~ORTS EMPORIUM, INC.
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By__.___ pr~s dent (SEAL)
(Corpot'ute Snal)
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