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HomeMy WebLinkAbout01-2396 FX ~. " <.-,,- ,,> ;, ,~' c" , J"~ ' ,'",,', '" ~ - :-..x",~-, _',~, , '.-'_:',:'":.-',"'',_'T__,~,i~:.:,"",,',':_~ , - ,h,,~; .. KEYSTONE FINANCIAL BANK N,A., now by merger, M & T Bank Plaintiff IN TIlE COURT OF COMMON PLEAS COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA VS, CIVIL ACTION LAW GREAT LOCATIONS, INC" Defendant : CIVIL TERM 20011')> .(C-......-- 0/- :.I.J7'b U-G>l- t~ CONFESSION OF JUDGMENT Fursuanttothe Warrant of Attorney ,contained in the aforementitmedPromissory Note, the original or copy of which is attached to the Complaint fIled in this action, I appear for the Plaintiff and confess judgment in favor of Plaintiff and against the Defendant, Great Locations, Inc" as follows: Principal Amount due to date: $ 156,358,09 Interest Accrued and unpaid through April 14, 2001 $ 3,863,58 Late Charges $ 2,512,80 Attorney's Fee's Pursuant to the terms of the Note $ 15,635.80 TOTAL $ 178,370,27 with interest from April 14, 2001, on the sum of $178,370.27 at the rate of 9,00 % per annum, Respectfully submitted, Dated: 4, :;)3- 61 Duncan & Hartman, P.C, ~/i{le.~1!~ PA ID # 22080 Attoruey for Plaintiff w........ ,,_c_ "I, <[ .' ~;~ ',-, :-\, /:,-;J,,"'-'-',~;,'0<d',k' "l. __c;~ ~ _'""'"~",,:~ . KEYSTONE FINANCIAL BANK N,A., now by merger, M & T Bank PlaintitT IN THE COURT OF COMMON PLEAS COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA VS, CIVIL ACTION LAW GREAT LOCATIONS, INC., Defendant CIVIL TERM 2001 COMPLAINT FOR JUDGMENT BY CONFESSION PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE 2951, ET SEQ. PlaintitT, M & T Bank, formerly, Keystone Financial Bank, N,A" by its attorney, William A, Duncan, fIles this Complaint in Confession of Judgment. 1. Plaintiff, M & T Bank, formerly Keystone Financial Bank, N,A" is a Pennsylvania banking Corporation existing under the laws of the Commonwealth of Pennsylvania, with its principal plllce of business located at 1415 Ritner Highway, Carlisle, Cumberland County, Pennsylvania. 2, Defendant is Great Locations, Inc., with a last known address of 3712 Market Street, Camp Hill, Cumberland County, Pennsylvania, 17101. 3, On or about August 30, 1999, Defendant, Great Locations, Inc., entered into a Commercial Guaranty in favor ofPlaintitT, M & T Bank, formerly Keystone Financial Bank, N,A., in the original principal amount of Two Hundred Twenty-five Thousand and 00/100 ($225,000,00) Dollars. A true and correct copy ofthe Guaranty, which contains the Warrant of Attorney upon which this judgment is confessed, is attached hereto as Exhibit "A" and is a part hereof, 4, Defendant, Great Locations, Inc., has defaulted in this obligation under the Guaranty by failing to make their February 2001, March 2001 and April 2001, payments of principal and interest due thereunder the terms of said Guaranty, 5. Pursuant to the Guaranty, judgment may be entered against Defendant Great Locations Inc., for all monies due without notice or demand. 6, Pursuant to the Guaranty, and by reason of Defendant Great Locations, Inc" default, the following amounts are currently due and owing PlaintitT M & T Bank, formerly Keystone Finllncial Bank, N,A., by Great Locations, Inc., Defendant, ~. ,. I" ' -" ~,' ~, '" c'. - c, " " '0 ,'~. ,":',,,",~ ,", ;.:~-- -~~'".1 -~,'. ->- c__ ,i , , ""';'" "__~," ~;: Principal Amount due to date: $ 156,358,09 Interest Accrued and unpaid through April 14, 2001 $ 3,863,58 Late Charges $ 2,512,80 Attorney's Fee's Pursuant to the terms ofthe Note $ 15,635,80 TOTAL $ 178,370,27 Iuterest accrues at a rate of $ 24,29 for each day after April 17, 2001 that this indebtedness remains unpaid. In the event of a petition to strike or opeu this judgment is fded, PlaintiffM & T Bank fonnerly Keystone Financial Bank N,A" reserves the right to have interest and attorney's fees brought current, 7, There has been no assignment of the Guaranty, 8. Judgment has not been entered on the Guaranty in any other jurisdiction, 9, Pursuant to the Guaranty, $178,370,27 is currently due and owing Plaintiff M & T Bank formerly Keystone Financial Bank, N. A. from Defendant Great Locations, Inc., and Defendant Great Locations, Inc., has failed to pay the amount due. WHEREFORE, Plaintiff Keystone Financial Bank, N,A. request that judgment be entered in its favor and against Defendant Great Locations, Inc" in the sum of $178,370,27 and all costs of suit, Duncan & Hartman, P.C, DATED: 4- .;L3-o I By: William A, Duncan, Esquire Attoruey for Plaintiff \,;~ilI ~ , - ,~-, ,-0< '"='''0<''_;;.. '__~, 'ut CERTIFICATION OF COMMERCIAL TRANSACTION 1, John P. Stover, hereby verifY that I am a Loan Workout Officer, ofM & T Bank, and, as such, duly authorized representative ofM & T Bank, deposes and says subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities that the underlying transaction relative to this Complaint in Confession of Judgment is a commercial transaction to the best of his knowledge, information and belief. ,a.~ 'I . VERD'lCATION 1, JOHN P. STOVER, hereby veritY that I am a Special Assets Loan Workout Officer, for M & T Bank, that I make this verification being authorized to do so, and the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge. I understand ,that false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904 '-'Io-=-""'to __ ~ ' _ . 0 P. Stover Special Assets Loan Workout OtBicer .M& TBank ". ""-","'-,'",,', , .' ' ,;<~, COMMERCIAL GUARANTY Borrower: Sean M. Barowskl Cindy L. Barowskl 2300 Scarsborough Drtve Hanfsburg, PA 17112-6033 Guarantor: Great Lacallons, Inc. 3721 Marl<et Street Camp HDI, PA 17011 Lender: KEYSTONE FINANCIAL BANK, N.A. Camp HiD 4231 Trindle Road Camp HIli, PA 17011 AMOUNT OF GUARANlY. The amount of this Guaranty is Unlimited. CONTINUING UNUMITED GUARANTY. For good and valuable consideration, Great Locallons, Ine. ("Guarantor") absolutely and unconcllllonally guarantees and promises 10 pay to KEYSTONE FINANCIAL BANK, N.A. ("lender") or /Is order, In l"lIaltenner 01 lire Un/led Slates 01 Amenea, the Indebledness (as thallerm Is definen below) at Sean M. Borowski and Cindy L. Borowski ("Borrower") , or eIther or any at lhem, 10 Lender on lire terms and condlllons set forlh In this Guaranty. Under lhls Guaranty, Ihe liability at Guaranlor Is unlimited and the obligations of Guarantor are continuing. DEFINITIONS. The following words shall have the following meanings when used in this Guaranty: Borrower. The word "Borrower'" means Sean M. Barmvskl and Cindy L. Barowski. Guarantor. The word "Guarantor" means Great Locations. Inc.. Guaranty. The word 'Guaranty" means lhis Guaranty made by Guarantor for the benefit at Lender dated August 30, 1999. Indebtedness. The word '1ndebtedness" ;s used in its most comprehensive sense and means and Includes any and all of Borrower's IiabiliUes, obligations. deb Is, and indebtedness to Lender J, now existing or hereinafter Incurred or created, including, without limitation, an loans, advances. interest, costs, debts, overdraft indebtedness, credJt card indebtedness.-lease obligations, other obligafions, and liabilities of Borrower, or any of them, and any present or future judgments against Borrower, or any of them; and whether any such Indebtedness Is voluntanly or involuntarily Incurred, due or not due, absolute or contingent, liquidated or unUquidated, determined or undetermlnedj whether Borrower may be liable indi\liduaUy or joinUy with others,. or primanly or secondanly, or as guarantor or surety; whether recovery on the Indebtedness may be or may become barred or unenforceable against Borrower for any reason whatsoever; and whether the Indebtedness arises from transactions which may be voidable on account of infancy, Insanity, ultra vires, or olherwise. Lender. The word "Lender' means KEYSTONE FINANCIAl BANK, N.A., its successors and assigns. Related Documents. The words "Related Documents" mean and indude wfthout fimitation aU promissory notes, credif agreements, roan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trusl, and all other inslruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty Shall be unlimited. NATURE OF GUARANTY. Guarantor's liability under this Guaranty shall be open and continuous for so long as this Guaranty remains in force. Guarantor Intends to guarantee af all times the performance and prompt payment when due, whether at maturity or earlier by reason at acceleration or othe!Wise, at all Indebtedness. Accordingly, no payments made upon the tndebledness will dlsaharge or dlmlnlsh the continuing lIabffily of Guamntar In connection with any remaining portlons of the Indebtedness or any of the Indebtedness which subsequenUy arises or Is thereafter incurred or con_~. . DURATION OF GUARANTY. This Guaranty will lake effecl when received by Lender withoullhe necessity at any acceptance by Lender, or any natiae to Guarantor or to Borrower, and WIlt continue in fuU force until an Indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been way and finally paid and satisfied and all other obllgatfOrlS of Guaranfor under this Guaranty shatr have been performed In fuD. If Guarantor elects to revoke this Guaranty, Guarantor may only do so In writing. Guarantors written notice of revocation must be maited 10 Lender, by cerlifled mail, at the address of Lender listed above or such other place as Lender may designate In wnting. Wntten revocaflon of this Guaranty win apply only to advances or new Indebtedness created afJer actual receipt by Lender at Guarantor's written revocation. For this purpose and without Ji~tion. the term "new Indebtedness" does not include Indebtedness which at the time of notice of revocation is contingent, unliquidated, undetermined Of not due and which later becomes absolute, Uquidated, determined or due. Thfs Guaranty wilT' co'ntinue to bind Guarantor for au Indebtedness incurred QY Borrower or committed by Lender prior to receipt of Guarantors wrItlen notice of revocation, Including any extensions, renewals, substitutions or modifications of the Indebtedness. All renewals, extensions, subsblufions, and modifications of the Indebtedness granted after Guarantor's revocation, are contemplated under this Guaranty and, specifically will not be considered to be new Indebtedness. This Guaranty shall bind Ihe estale of Guarantor as to Indebtedness created bath before and after the dealh or Inaapacl!y of Guarantor, regardless of Lender's actual notice of Guarantor's death. SUbject to the foregoing, Guarantor's executor or administrator or other legal representaUve may terminate this Guaranty in the same manner in which Guarantor might have termlnaled it and with the same effect. Release of any other guarantor or tennlnatioo of any other guaranty of the Indebtedness shall not a.ffect the Rability of Guarantor under this Guaranty. A revocatlon received by Lender from a.ny one or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. It is anticipated thai fluctuations ml!y' occur in the aggregate amounl of Indebtedness covered by this Guaranty, and ills speclflcally acknowlenged and agreed by Guarantor lhal reducflons In lhe amount 01 Indebledness, even 10 zero dollars ($0.00), prior to Wrilten revocallon of this Guaranty by Guarantor _I not conslllute a termfnatlon ot this Guaranty. This Guaranty Is binning upon Guarantor and Guarantor's heirs, successors and assigns so tong as any at the guaranteed Indebtedness remains unpafd and even Utough the Indebtedness guaranteed may tram lime 10 time be zero dollars ($0.00). GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or alter any revocation hereof, without notice or demand and Wilhoutlessenlng Guarantor's liability under Ihls Guaranty, from lime to time: (a) prior 10 revocation as set forth above,lo make one or more additional secured or unsecured loans to Borrower, to lease equipment or other goods 10 Borrower, or otherwise to extend addiUonal credit to Borrower; (b) to alter, compromise, renew. extend, accelerate, or otherwise change one or more Urnes the time for paymenl or olher lerms 01 the Indebledness or any pari at the Indebledness, including Increases and decreases at the rate of Inlares! on the Indebtedness; extensions may be repealed ann may be for longer than the anginal loan term: (c) to take and hold secunty for the payment at this Guaranty or the In<febtedness, and exchange, enforce, waive~ subordinate, faU or decide not to pertect, and release any such .security, with or Without the subsUlution of new collateral; (d) to release, $Ubstitute, agree not to sue, or deal with anyone or more of Borrower's sureties, endorsers, or other guarantors on any 1erms or in any manner Lender may choose; (e) to determine how, when and what application 01 payments ancI credits shall be marle on IlIe Indebtedness; (f) 10 apply such security and dlrecl the <lrder or manner of sale theret>f, ;j:\:- .., rF1.r;- OJ \0'-, tAl ;. '- '~~',~!~.~~Jt,",I~;~.~ :: : ~I;",,_'; ,,:~l 1t.: i:~ " I hereby certifY that the following is the address of the defendant stated in the certificate of residence: 3712 MARKET STREET CAMP HILL. PA 17011 . . am A. Duncan, Attorney for Plaintiff A . Defendido/a Defendidoslas Usted esta siendo notilicado que eI (day) de (month) de12001, se anoto en contra suya un fallo por confesion en la suma de $ en el caso mencionado en el epigrafe. FECHA: Prothonotario USTED DEBE LLEV AR INMEDIATAMENTE ESTE DOCUMENTO A SU ABOGADO. SI USTED NI TlENE UN ABOGADO 0 NO PUEDRE P AGARLE A UNO, LLAME 0 V AY A A LA SIGUlENTE OFICINA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 717-249-3166 Certifieo qne la signiente du-eccion es la del defendido/a segnn indieada en el eertifieado de resideneia: Abogado del Demandante I 1- ~ ~' ~ .~( , ~ KEYSTONE FINANCIAL BANK N.A., now by merger, M & T Bank Plaintiff IN THE COURT OF COMMON PLEAS COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA VS. CIVIL ACTION LAW GREAT LOCATIONS, INC., Defendant CIVIL TERM 2001 - .;;;2J9 c.. TO GREAT LOCATIONS, INC., Defendant You are hereby notified that on April.2'1 2001, judgment by Confession was entered against you in the sum of $ 178,370.27 in the above-captioned case. DATE: t-fr;)-3-e51 G.;-i~,72.~_ Prothonotary YOU SHOULD TAKE THIS PAPER TO YOUR LA WYERAT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LmERTY AVENUE CARLISLE, PA 17013 717-249-3166 ~~ ,. -" " ,~ . '.m _ . ., , ,.l ,_, ..,.1_ : ,~. .n,! _ _ ,,',. .'-; ~. > ., KEYSTONE FINANCIAL BANK N.A., now by merger, M & T Bank Plaintiff IN THE COURT OF COMMON PLEAS COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA VS. CIVIL ACTION LAW GREAT LOCATIONS, INC., Defendant CIVIL TERM 2001 0/ - :lJ9 '- ENTRY OF APPEARANCE (~;u~( ~ TO THE PROTHONOTARY: Please enter our appearance on behalf of Plaintiff, M & T Bank formerly Keystone Financial Bank, N. A. and enter judgment for Plaintiff and against Defendant Great Locations, Inc., for damages. Duncan & Hartman, P.C. DATED: Lj _ ;;23-01 By: iUiam A. Dun n, Esquire Attorney for Plaintiff ti~!lt4n~-rw'~~~~'Rf!;jjjf'-" ::....'~ ,<,-,",~ !;'~""'~'''I~i1r_l''-IJMiWM::g~~t4Ii!~'''''''''' '. ~~""'_~",..,,_ >'. _~~_.=~,~~,"~_~'_ __~_"h..7= ... .q"l__N~'_~~'''' ..". _'__~o/ '~J','. _. ~ V'_', .l!. r~-'-io. -,,-,"" ""';;""lli"-'~ rr.it-, I( ""'~..... (') 0 0 -o,i -n ll> .'-i- -'0 ~:J; ---n 9!!m ;;0 I '\r- z~ N :_~:~O .17 ,..,~ ~..:: 0 kO :> :-:J~ .--1--n i~ :% 0;5 /' , - Om ., ~<-l ~ N 53 -.I -< -"'" , ~"~" . -,..-;~ ,. = I " jJjjjl...il~low.Ji....., ~ __ I. , ~~- - I 1_ 11~~". .' ". ,"_ I!Ui '08-30-1999 COMMERCIAL GUARANTY (Continued) Page 3 or parties sought to be charged or bound by the alteration or amendment. Applicable LaW. This Guaranty hils been deUvered to Lender and accepted by Lender in the Commonwealth of Pennsylvania, If there is a Iawsutt, Guarantor agrees upon Lender's request to subm" to the jurisdiction of the courts of Cumberland County, Commonweatth of Pennsylvania. This Guaranty shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Attorneys' Fees; Expenses. Guarantor agrees to PaY upon demand all of Lender's costs and expenses, including attorneys' fees and Lende~s legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may pay someone elselo help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses whether or not there is a Iawsu", inclUding attorneys' fees and legal expenses for bankruptcy proceedings (and including efforts to,modlfy or vacale any automatic slay or injunction), appeals, and any anticipated posl-judgrnent collection services. Guarantor also shall pay all court costs and such acjditioilal fees as may be dir!lCted by the court. ~. All notices required to be given by either party to the other under this Guaranty shall be in writing, may be sent by telef8l:Simile (unless otherwise required by law), an~, except for revocation notices by Guarantor, shall be effective when aetually delivered or when deposited with a nationally recognized overnight courier, or when deposited in the United Slates mall, firSt class poslageprepaid, addressed to the party.to whom the notice is to be given at me address shown above or to such other addresses as either party may deSignate to the other in writing, All revocation notices by Guarantor shall be in writing and shall be eflecllve only upon delivery to Lender as provided above. in the section titied "DURATION OF GUARANTI." If there is more than oneGUlII)U1tor, notice to any Guarantor will corJStlMe notice to all Guaianlors. For notice pur'poses, Guarantor agrees to keep Lender informed at all times of Guarantor's current address, Inlerprelalllm,. In all cases where there .is more than one 60rrower or Guarantor, then all words used in this Guaranty in the'singular shall be deemed 10 have been used in the plural where the context and construction so require; and where there Is more than one 60rr0wer named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Elonowei"and "Guarantoi" respectively shall mean all and anyone or more of them.' The words "Guarantor," ''Elorrower," and "Lende(' Inetude the heirs, successors, assigns, and transferees of each of them, Caption headings in this Guaranty are for convenience purposes only and ate not to be used to interpret or define the provisions of this Guaranty. If a court of compelent jurisdiction finds any provision of this Guaranty to be Invalid or unenforceable as to any person or circulTlStllnce, such finding shall not render that provision invalid or unenforceable as to any other persons or circumslances, and all provisions of thi!; Guaranty In all other respects shall remain valid and enforceable. If any one or more of Bonower or Guarantor are corporations or parb1erships, "is not necessary for Lender to Inquire into the powers of Bonower or Guarantor or of the officers, directors, partners, or agents acting or purporting to aet on the~ behalf, and any Indebtedness made or created in rerlance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Waiver. Lender, shall not be deemed tohlive waived any rights under this Guaranty unlesS such waiver is given in writing and signed by Lender, No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of tIiis Guaranty shall not prejudice or constitute a waiver 01 Lender's right ott!erwlse to deinand slrict compU!lCJCl! with that provision or any other provision of this Guaranty,.No prior waiver by Lender, nor any <;ourse ot dealing between Lender and Guaranlor, shall constitute a waiver ljl any ofLend"~s rights Or of ;ny of Guarantor's obligations as, to any Mure transactions, Whenever the consent of Lender is required under Ihls Guaranty,:the granting of such consenf by Lender in any instance shall not constitute continuing consent to subsequent Instences where such consent is required and in all cases sUCh consent may be granted or wRhheld in the sole discretion of Lender. CONFe;SSION Of' JUllGMENT, GUARANTOR HEREBY IRREVOCABLY AUTHORIZES, AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR GUARANTOR'AFTER A DEFAULT UNDER THIS GUAllANTI, AND WITH OR WITHOUT COMPLAINT FILED, A$ OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAiNSfGUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS. GUARANTI, ALL.ACCRUED tNTERESf, LATE CHARGES, AND AN'{AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEElTEDNESS TOGETHER WITH INTERESf ON SUCH AMOUNTS, TOGE;THER WITH COSfS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OFTHE UNPAID PRINCIPAL BALANCE AND ACCRUED INTERESf FOR COLLECTION; BUT IN ANY EVENT NOT LESS THAI'! FIVE HUNDRED DOLLARS ($500) ONWHtCH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANlY OR A COPVOF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINSf GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORIlY,BUT SHALL CONTINUE FROM TIME TO TIME AND. AT ALL TIMES. UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNOER THIS GUARANTI. GUARANTOR HERE6Y WAIVES ANY RIGHlGUARANTORMAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLE LAW WITH RESPECT TO EXECUTION OF THl: JUDGMENT, AND SfATES THAT EITHER A REPRESENTATIVE OF LENDER$PECIFICALLY CAU.EO THI$ CONFESSION OF JUDGMENT PROVISION TO GUARANTQR'$ ATIENTlON OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. EACHUND~SIGNEDGUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF. THIS GUARANTY AND AGREES TO ITS TERMS. IN ,ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS efFECTIVE UPON GUARANTOR'S.~CIJTlON AND DB.~Of' THIS GUARANTY TO LENDER AND THAT THE GUARi\NTY WILL CONTINUE UNTIL TERMINATED IN THE'MAN/II~ SET FORTH IN THE SECTIOrUITLED "DURATION OF GUARANTY," NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE, THIS GUARANTY IS DATED AUGUST 30, 1999. THIS GUARANTY HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED, GUARANTOR: LASER PRO. Reg.. U.s. Pat: & t,M. Off., \ler. 3.27a(c)1999 CFl PrOServices, Inc. Allrighlsreserved. (PA-E2.0A E3.27 F3,27 P3.27 SEAN.LN C24.0VL} ,~~~Iij,il'0,Hl!~.~e!,t;~'~H'ffit;.J:f~!M__l~iIiiIi-I_Tll!Lii '--;;).il@\'-J'~lk;,t"'"\'d'Nit;,",'-~"",_,~<:-;1iliilo!\S~,~,\W;Hi:m!i!i~U~~U-'~-~1iI. ~ ' ,~.. "~....:.-,,~-..dJi!li1 "''"''''''III1iili1lJi:RiJ1 ,~~-~ ''''ail ~ - ~;,,'~ (') 0 0 C "6q $:: 71 ~ ~ -0 tv ",. --.< ........ rnYj -0 ::r ~ 2, ::v '11:!t Zr- N . t~ (1)5; -"'? 0 ..c:- :0 ' r;--- 0" ........ ~CJ ".. ~Si ~ :<...J ~(') ::r r-.o V >8 6~ ~ ~ 2 N ~ --., p: ~ -..I -< ~ ~ '" ~~ ~_~_ ,~,__ ~ ~.""~",~'~_ ,_o".~,~~~. ,,'^,_"_' ,~, ,_"__,~ _~," _, ..~"" ~~ -~ -"=,",,_l,,~...,....,~ , "",~_l .__.~~" ! ;" -,~ '-, , 08-3.0-1999 COMMERCIAL GUARANTY (Continued) Page 2 . including wilhoulllll1i1allOn, any nonjudicial sale permllledby the terms of the controlling security agreement or deed of trust as Lender In lis distrellon ",ay detennine; (gllo sell, _, assign, or grant participations In all or any pari of the Indebtedness' and '(h) 10 assign or ttansfer lIlis Guaranty In whole or In part. ' GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that Ca) no representations or agreements of any kind have beeI1 made 10 Guarantor which would limit orqualily in any way the terms of this Guaranty; (b) ihisGUaranty is eXecuted at B~rrower's request and not at the request,of Lender; (c) Guarantor has full power, right and aulhorltyto enter into this Guaranty; Cd). the pl'Ollisions of thIS Guaranty do not conftlct with or resuft In a defaull under any agreement or other instrument binding upon GuarantOr .and do not resuII in a violation of any law, regulaliQn, court decree or order applicable to Guarantor; Ce) Guarantor hes not and will not, YJithoulthe prtor wrilllon consent of lender sell, lease, assign, enc~ber, hypothecate, transfer, or otherwise dispose of all or substantially ail of Guarantor's assets, or any interestther8iri; (I) upo~ Lender's request, Guarantor will provide to Lender financial and crean information in form acceptable to lender, and all such financial iniormation whioh cunenlly hes been, and all fUlure financial information which will be provided to Lender is and will be true and cOrrect in all maleria/ rilSpecls and lairIy present the. financial condition of Guarantor as of the dates the linancial information is provided; Cg) no malertal advetse change has occurred in Guarantor's financial condition since the date of the most recent financial sb;ltemens provided to lender and no event has OCCuned whiCh may malerlally ad",:rselY affeCt Guarilntor's fina.nciaI condition; Ch) no litigation, claim, investigation, admlnts~live pracSeding or similar licIlon Qi1cIudlng those for unpSld taxes) against Guarantor IS pending or threatened; 0) lender has made no representation to Guarantor as to the CledilWoothlness of Borrower; and OJ Guarantor has established adequate ITll!llns of obtaining trom Borrower on a continuing basis Information regarding BOQ'ower's financial condition, Guaranlor agrees to keep adequately Informed from such means of any facts, evens, or circumsb;lnces whiCh might in any way affecl Guarantor's riskS under this Guaranty, and. Guarantor further agrees that Lender shall have no obligation 10 disclose to Guarantor any Information or documents acquired by lender in the course of its relationship wfth Borrower, GUARANTOR'S WAI1/alS, ~t as prohibited by applicable law, Guarantor we;ves any rtghtto require Lender Ca) to continue landing money or to extend other credit to Elorrower; (b) to make any presentment, protesl, demand, or notice of any kind, including notice of any nonpayment Oflhe Indebtedness or Of any nonpayment related to any collateral, or notioe of any action or nonaction on the pari of Borrower, Lender, any surety, endorser, or other guarantor in connectiQn with the Indebtedness or in connection ~h the creaDon Qf new or additional loans or -obligations; (c) to resort for payment or to proceed directiy or at once against any person, including Borrower or any other guarantor; (d) to proce~d directiy against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; Ce) to give notice of the terms, time, and place of any pUbil(: or private sale of perSonal property security held by Lender from Borrower or to comply wilh any other applicable provisions of'the Uniform Commercial Code; CI) 10 pursue any other remedy within Lender's power; or Cg) to commi! any act or omission of any kind, or at any time, with mspectto any matter whatsoever. Guarantor also waives sny and all righls or defenses arising by reason of (al any "one action" or "anli-deticiency" law or any other law which may prevent lender trom brtnging any action, including a claim for deticiency, age;nst Guarantor, before or after Lender's commencement or completion of any foreclosure aolion, either judicially or by exerctse of a power of sale; (b) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subragation rights Or Guarantor'srtghts to proceed age;nst Borrower for reimbursement, including without limitation, any loss of rights Guarantor may suffef by reason of any law limiting, qualifying, or alScharging the Indebtedness; (c) any disability or other defense of Borrower, of any other guaranfor, or of any other person, or by reason Of the cessation of BorrOWer's Iiebllily from any Cause Whatsoever, other than payment in full in legal tender, of the Indebtedness; (d) any rtght to claim discharge of the Indebtedness on the basis of unjusttfied impatrment of any coIIateial for the Indebtedness; (e) any ~b;ltute of limitations, if at anytime any action or sui! brought by lender against Guarantor is commenced lherB Is outstanding IndebtedneSs of Borrower 10 lender which is not barred by any applicable statute of limitations; or (I) any defenses given to guarantors at law or in equity Other than actual payment and performance of the Indebtedness, If payment is made by Borrower, whether votuntarily or otherWIse, or by any third party, on the IndeDtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to any similar person under any federalorstate bankruptcy laW or b;lw for the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of enforcement of this GullJ'llnty, Guarantor further waives and. agrees not to assert or cle;m at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar rtgh~ whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both, GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made with Guarantor's full knowledge of lis significance and consequences and thet, under the circumstances, the waivers are reasoneble and not contrary to publiC policy or law. If llny ~uch WlIiver is determined to be contrary to any applicabie law or public policy, such waiver shaD beeffeClive only to the extent permilled by law or public policy. LENDER'S RIGHT OF SETOFF, In addition to all liens upon and rtghts of seloffagainst the moneys, securities or other property of Guarantor given to lender by law, Lender shall have, ",ith respect to Guarantor's obligations to Lender under this Guaranly and to the extent permifled by law, a contractual SBcUrtly interest in and a right of setoff age;nsl, and Guarantor hereby assigns, conveys, delivers, pledges, and translers to lender ali of Guarantor's rtght, titie and interest in and to, all deposits, moneys, securities and other property of Guarantor now or hereafter in the possession of or on deposit with Lender, whether held In a general or specie; accounf.or deposit, whether held jointiy with someone else, or whether held for safekeeping or, otherwise, excluding however all IRA, Keogh, and trust accounts. ;;:very such security interest and right of setoff may be exercised Without demand upon or notice to Guarantor, No security interest or rtght of setoff shall be deemed to have been waived by any act or conduct on the part of lender or by any neglect to exercise such rlght of setOff or to enforce such security interest or by any delay in so doing, ;;:very right of ~ff and security Interest shall continue in full force. aM effect until such right of setoff or securily interest is specifically waived or released by an instrument in writing eXecuted by lender. SUBORDINATION OF IlORROWER'S DJ;BTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to lender, whether now existing or hereafter created, shall be prtor 10 any clalni lhatGuaranlor may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Boirower, upon any account whatsoever, to any claim that lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower, through bankruptcy, bY an assignment for the benefit of credilors, by voluntary liquidation, or. otherwise, the assels of Borrower applicable to the payment of the cle;ms Of both lender and Guarantor shall be paid to Lender and shali be first applied by lender to the Indebtedness of Borrower to lender. Guarantor doeo1 hereby assign to Lender all claims which it may have or acquire against Borrower or against any assignee or trustee in bankruptcy of Borrower, provided however, that such assignment shall be effeclive onty for the pUl1lose of assurtng to Lender full peyment In lege; tender ofthe Indebtedness. If Lender so requests, any notes or cmdilagreemenls now or hereafter evidenCing any debts or obligations of BOrrower to Guarantor shall be marked wilh a legend that the same are subject to this Guaranlyand shall be deiivered to Lender. Guarantor agrees, and Lender hereby Is authorized, In the name of Guarantor, 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 Lender deems necessary or appropriate to perfect, preserve and enforce its rtghts under this Guaranty. MISC8J.ANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty: Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranly, No alteration of or amendmenf to ihis Guaranty shall be effective unless given in wrtting and signed by the party '11