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Home My WebLink About07-6889 MARK-CRETE, INC. and F. MARK ESHELMAN, JR., Defendants Confession of Judgment IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOVEREIGN BANK CIVIL ACTION Plaintiff VS. No. 7 _?I CONFESSION OF JUDGMENT Pursuant to the authority contained in the Warrants of Attorney, copies of which are attached hereto, I appear for the above Defendants Mark-Crete, Inc. and F. Mark Eshelman, Jr. and confess judgment in favor of the Plaintiff, Sovereign Bank, and against the Defendants Mark-Crete, Inc. and F. Mark Eshelman, Jr. in the amount of $540,186.44 plus per diem interest of $135.43092 from October 24, 2007 until paid in full, including post judgment per contract, plus costs of suit as follows, itemized below: Unpaid Principal Amount $ 474,784.81 Interest to October 23, 2007 $ 14,987.00 Late Fees $ 1,437.45 Contractual Attorney Fees (10%) $ 48,977.18 TOTAL $ 540,186.44 Per Diem Interest from October 24, 2007 until paid in full including post judgment per contract, plus costs of suit $ 35.43092 Judgment entered as above. Dated: October 29, 2007 By: Sodman, Esquire for Defendants 20- 6-ARO 2 ldwyn Lane Villanova PA 19085-1420 Phone: 610-526-6313 I.D. No. 62689 VA 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOVEREIGN BANK vs. Plaintiff CIVIL ACTION No. MARK-CRETE, INC. : and F. MARK ESHELMAN, JR., Defendants Confession of Judgment COMPLAINT FOR CONFESSION OF JUDGMENT Plaintiff, Sovereign Bank, confesses judgment against Defendants Mark-Crete, Inc. and F. Mark Eshelman, Jr. in the amount of $540,186.44 plus per diem interest of $135.43092 from October 24, 2007 until paid in full, including post judgment per contract, plus costs of suit as provided for in those certain notes and guaranties, and in support thereof avers as follows: Parties 1. The Plaintiff is Sovereign Bank, and Sovereign Bank successor-in-interest to Waypoint Bank, a corporation organized and existing under the laws of the United States of America, and it is registered to do business in Pennsylvania with offices for the purpose of doing business at Two Aldwyn Center, East Lancaster Avenue and Aldwyn Lane, Villanova PA 19085-1420. 2. The Defendant is Mark-Crete, Inc., a Pennsylvania corporation whose address is c/o F. Mark Eshelman, Jr., President, 71 Texaco Road, Mechanicsburg PA 17055 ("Mark-Crete, Inc."). 3. The Defendant is F. Mark Eshelman, Jr., an adult individual whose principal address is 71 Texaco Road, Mechanicsburg PA 17055 ("Eshelman"). \ ` Z Count I SOVEREIGN BANK v. MARK-CRETE, INC. 4. On or about March 22, 2001, Mark-Crete, Inc. executed and delivered to Waypoint Bank a Promissory Note in the principal amount of $400,000.00 and an accompanying Disclosure For Confession of Judgment as modified by that certain Change in Terms Agreement dated September 19, 2002 with a corresponding Disclosure For Confession of Judgment (collectively, the "Demand Note"). A true and correct of copy of the Demand Note is attached hereto, incorporated herein and marked as Exhibit "A", 5. On or about March 30, 2006, Mark-Crete, Inc. executed and delivered to Sovereign Bank a Promissory Note in the principal amount of $30,000.00 and an accompanying Disclosure For Confession of Judgment (the "Term Note"). A true and correct of copy of the Term Note is attached hereto, incorporated herein and marked as Exhibit "B". 6. Sovereign Bank is the holder of the Demand Note and the Term Note (hereinafter collectively referred to as the "Notes"). 7. The Notes authorize confessions of judgment. 8. The Notes have not been assigned. 9. The judgment to be entered does not involve a loan defined as a "consumer credit transaction" in accordance with Annex A. to Title 231, Chapter 2950, Rule 2951(a)(2). 10. Judgment has not been entered on the attached Notes in any jurisdiction. 11. The Notes are less than twenty years old and no application for a court order granting leave to enter judgment after notice is required. 12. The Notes provide for confession of judgment against Defendant Mark-Crete, Inc. after default under the Notes. 13. Defendant Mark-Crete, Inc. is in default under the terms of the Notes for among other things, failure to make payments when due. 14. Sovereign Bank has exercised its right to confess judgment pursuant to the terms of the Notes for an amount which Defendant Mark-Crete, Inc. may become liable. 15. On or about August 20, 2007, Sovereign Bank delivered, via first class mail and certified mail, return receipt requested, a written notice of default and demand for payment to Defendant Mark-Crete, Inc. demanding that all outstanding principal amounts, plus accrued interest and late fees due under the Notes be paid in full and Defendant Mark-Crete, Inc. failed to do so. A true and correct of copy of the Notice of Default is attached hereto, incorporated herein and marked as Exhibit "C". 16. As a consequence of Defendant Mark-Crete, Inc.'s failure to cure this default, Defendant Mark-Crete, Inc. is liable to Sovereign Bank in the total sum of $540,186.44 plus per diem interest of $135.43092 from October 24, 2007 until paid in full, including post judgment per contract, plus costs of suit itemized as follows: Demand Note Term Note Total Unpaid Principal Amount $ 449,871.67 $ 24,913.14 $ 4749784.81 Interest to October 23, 2007 $ 13,761.28 $ 1,225.72 $ 14,987.00 Late Fees $ 1,215.88 $ 221.57 $ 1,437.45 Contractual Attorney Fees (10%) $ 46,363.30 $ 2,613.89 $ 489977.18 TOTAL $ 511,212.13 $ 28,974.32 $ 5409186.44 Per Diem Interest from October 24, 2007 until paid in full including post judgment per contract, plus costs of suit $ 28.08846 $ .34246 135.43092 WHEREFORE, Plaintiff, Sovereign Bank, demands judgment against the Defendant Mark-Crete, Inc. in the total sum of $540,186.44 plus per diem interest of $135.43092 from October 24, 2007 until paid in full, including postjudgment per contract, plus costs of suit as authorized by the Warrant appearing in the Notes. Count II SOVEREIGN BANK v. F. MARK ESHELMAN, JR. 17. Sovereign Bank incorporates the above averments as if more fully set forth herein. 18. On or about March 22, 2001, Defendant Eshelman executed a Commercial Guaranty of the Demand Note and an accompanying Disclosure For Confession of Judgment as well as a Commercial Guaranty of the Change in Terms Agreement and a corresponding Disclosure For Confession of Judgment (collectively, the "Demand Note Guaranty"). A true and correct of copy of the Demand Note Guaranty is attached hereto, incorporated herein and marked as Exhibit "D". 19. On or about March 30, 2006, Defendant Eshelman executed a Commercial Guaranty of the Term Note and an accompanying Disclosure For Confession of Judgment as well as a Commercial Guaranty of the Change in Terms Agreement and a corresponding Disclosure For Confession of Judgment (collectively, the "Term Note Guaranty"). A true and correct of copy of the Term Note Guaranty is attached hereto, incorporated herein and marked as Exhibit "E". 20. Sovereign Bank is the holder of the Demand Note Guaranty and the Term Note Guaranty (hereinafter collectively referred to as the "Guaranties"). 21. The Guaranties authorize confessions of judgment. 22. The Guaranties have not been assigned. 23. The judgment to be entered does not involve a loan defined as a "consumer credit transaction" in accordance with Annex A. to Title 231, Chapter 2950, Rule 2951(a)(2). 24. Judgment has not been entered on the attached Guaranties in any jurisdiction. 25. The Guaranties are less than twenty years old and no application for a court order granting leave to enter judgment after notice is required. 26. The attached Guaranties impose the liability against Defendant Eshelman and as such Defendant Eshelman is primarily liable with Defendant Mark-Crete, Inc. for the principal and all sums due and owing under the Notes upon default. 27. The Guaranties provide for confession of judgment against Defendant Eshelman after default under the Guaranties. 28. Defendant Eshelman is in default under the terms of the Guaranties. 29. Sovereign Bank has exercised its right to confess judgment pursuant to the terms of the Guaranties for an amount which Defendant Eshelman may become liable. 30. On or about August 20, 2007, Sovereign Bank delivered, via first class mail and certified mail, return receipt requested, a written notice of default and demand for payment to Defendant Eshelman demanding that all outstanding principal amounts, plus accrued interest and late fees due under the Note be paid in full and Defendant Eshelman failed to do so. A true and correct of copy of the Notice of Default is attached hereto, incorporated herein and marked as Exhibit "C". 31. As a consequence of Defendant Eshelman's failure to cure this default, Defendant Eshelman is liable to Sovereign Bank in the total sum of $540,186.44 plus per diem interest of $135.43092 from October 24, 2007 until paid in full, including post judgment per contract, plus costs of suit itemized as follows: Demand Note Term Note Total Unpaid Principal Amount $ 449,871.67 $ 24,913.14 $ 474,784.81 Interest to October 23, 2007 $ 13,761.28 $ 1,225.72 $ 149987.00 Late Fees $ 1,215.88 $ 221.57 $ 19437.45 Contractual Attorney Fees (10%) $ 46,363.30 $ 2,613.89 $ 48,977.18 TOTAL $ 511,212.13 $ 28,974.32 $ 540,186.44 Per Diem Interest from October 24, 2007 until paid in full including post judgment per contract, plus costs of suit $ 28.08846 $ .34246 135.43092 WHEREFORE, Plaintiff, Sovereign Bank, demands judgment against Defendant F. Mark Eshelman, Jr. in the total sum of $540,186.44 plus per diem interest of $135.43092 from October 24, 2007 until paid in full, including post judgment per contract, plus costs of suit as authorized by the Dated: October 29, 2007 Warrant appearing in the Guaranties gy Goodman, Esquij -1y for Defendants 20-536-ARO 2 Aldwyn Lane Villanova PA 19085-1420 Phone: 610-526-6313 I.D. No. 62689 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I further verify that I am a Vice President of SOVEREIGN BANK, and that as such, I am authorized to make this Verification on its behalf. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. DATED: d k44 b1 SOVEREIGN BANK By1 \ a t-- Rick Spinicci Vice President PROMISSORY NOTE Borrower: Mark-Crete, Inc. Lender: Waypoint Bank 71 Texaco Road 235 North Second Street Mechanicsburg, PA 17055 P.O. Box 1711 Harrisburg, PA 17105 Principal Amount: $400,000.00 Initial Rate: 9.000% Date of Note: March 22, 2001 PROMISE TO PAY. Mark-Crete, Inc. C'B.orrowee) promises to pay to Waypoint Bank ("Lender'l, or order, In lawful money of the United States of America, on demand,. the principal amount of Four Hundred Thousand & 00/100 Dollars ($400,000.00) or so much as may be outstanding, together with Interest on the unpaid outstanding principal balance of each advance. Interest shall be calculated from the date of each advance until repayment of each advance. PAYMENT. Borrower will pay this loan immediately upon Lender's demand. Payment in full is due immediately upon Lender's demand. Borrower will pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning May 1, 2001, with all subsequent Interest payments to be due on the same day of each month after that. Unless otherwise a reed or payments will be applied first to accrued unpaid interest, g required by appltca ble law, then to principal, and any remaining amount. to any unpaid connection costs and late charges. The annual Interest rate for this Note is computed on a 365/360 basis; that is, year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number ogf dda the tio of ys the p the annual interest rate over a Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. principal balance Is outstanding. VARIABLE INTEREST RATE The interest rate on this Note is subject to change from time to time based on changes in an index which Is Lender's Prime Rate (the "Index"). This Is the rate Lender charges, or would charge, on 90-day unsecured loans to the most creditworthy corporate customers. This rate may or may not be the lowest rate available from Lender at any given time. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each Day. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 8.500% per annum. The Interest rate to be applied to the unpaid principal balance of this Note will be at a rate of 0.500 percentage points over the Index, resulting In an initial rate of 9.000% per annum. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Except for the f may pay without penalty all or a portion of the amount owed earlier than it is due. Early er In ng, Borrower Borrower of Borrower's obligation to continue to make payments of accrued unpaid payments Raatt er, not, unless anted to by Lender in writing, relieve met, due. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar y language. If payments will Borroreduce wer the sends such principal a pal balance payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, Including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount musst be mailed or delivered to: Waypoint Bank , 235 North Second Street, P.O. Box 1711, Harrisburg, PA 17105. LATE CHARGE. If a regularly scheduled interest payment is 15 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment or $10.00, whichever Is greater. If Lender demands payment of this loan, and Borrower does not pay the loan in full within 15 days after Lender's demand, Borrower also will be charged either 5.000% of the sum of the unpaid principal plus accrued unpaid interest or $10.00, whichever is greater. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at its option, may, if permitted under applicable law, increase the variable Interest rate on this Note to 2.500 percentage points over the Index. The interest rate will not exceed the maximum rate permitted by applicable law. If judgment Is entered in connection with this Note, interest will continue to accrue on this Note after judgment at the interest rate applicable to this Note at the time judgment is entered. LENDER'S RIGHTS. Upon Lender's demand, Lender may, after giving such notices as required by applicable law, declare the entire unpaid, principal balance on this Note and all accrued unpaid interest Immediately due, and then Borrower will pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note If Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees, eoWnses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Note will be governed by, construed and enforced in accordance with federal law and the laws of the Commonwealth of Pennsylvania. This Note has been accepted by Lender in the Commonwealth of Pennsylvania. CHOICE OF VENUE If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Dauphin County, Commonwealth of Pennsylvania. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts. LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under this Note, as well as directions for payment from Borrower's accounts, may be requested orally or in writing by Borrower or by an authorized person. Lender may, but need not, require that all oral requests be confirmed in writing. Borrower agrees to be liable for all sums either: (A) advanced in accordance with the instructions of an authorized person or (B) credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this Note at any time may be evidenced by endorsements on this Note or by Lender's Internal records, including daily computer print-outs. SECURITY. All collateral (as herein defined) Is security for this Note and any renewals, extensions and modifications thereof, and the payment, performance and discharge of all other present or future indebtedness, obligations and undertakings (whether individual, joint, several, direct, contingent or otherwise) of the Borrower to or for the benefit of Lender, whether arising directly to Lender under this Note or under any other agreement, promissory note or undertakings now existing or hereinafter entered into by the Borrower to the Lender. The term "Collateral" includes all tangible and intangible property (I) described in any mortgage, assignment or other security document separately executed In favor of Lender, and (ti) in which a security interest has been granted to Lender pursuant to this Note. . CROSS COLLATERALIZATION. The Note will be cross-collateralized/cross-defaulted with all other Waypoin Bank loans. If at any time there is a default under this Note, all loans will be considered in default and all outstanding amounts under the loans will be immediately due and payable in full. PROMISSORY NOTE Loan No: 8875001956 (Continued) A default in one loan shall constitute a default in all others. Page DISCLOSURE TO BORROWER FOR CONFESSION OF JUDGMENT. An exhibit, titled "Disclosure for Confession of Judgment," is attached to this Note and by this reference is made a part of- this Note just as If all the provisions, terms and conditions of the Exhibit had been fully set forth in this Note. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and Its successors and assigns. GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive preseatment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or Impair, fail to reap upon or perfect Lender's security Interest in the collateral; and take any other action deemed necessary by Lender without the consent of or'notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER 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 BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN . FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR- MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR'A. COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER 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 NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR, TO A HEARING IN• CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND. STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN:REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: MARK-CRETE, INC. y':»:•;;::. :.::;:::<> Seal) ::. man, r., President of to, Inc. LENDER: WAYX A "ER PRO L s Wift Reg. U.B. PAL i T.N. OFF., Vsr.3.15.10.00 (e) COM41 rsx 1007, 2001. AN Rights ROSwvst - PA 1:1A1P>t1OF11LPL102gPC TR-709 PR-fa I DISCLOS E FOR CONFESSION OF ' "?GMENT BOrrdwer: Mark-Crete, Inc. 71 Texaco Road Mechanicsburg, PA 17055 Lender: Waypoint Bank 235 North Second Street P.O. Box 1711 Harrisburg, PA 17105 This DISCLOSURE FOR CONFESSION OF JUDGMENT Is attached to and by this reference is made a part of the promissory Note, dated March 22, 2001, and executed In connection with a loan or other financial accommodations between WAYPOINT BANK and Mark-Crete, inc. ON THE DATE HEREOF, BORROWER IS EXECUTING A PROMISSORY NOTE OBLIGATING THE BORROWER TO REPAY THAT AMOUNT. A. I UNDERSTAND THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST THE BORROWER IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO THE BORROWER AND WITHOUT OFFERING THE BORROWER AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF THE BORROWER S RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST THE BORROWER UNDER THE NOTE, 1, ON BEHALF OF THE BORROWER, AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO LENDER S ENTERING JUDGMENT AGAINST THE BORROWER BY C??IFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INITIALS: -? B. I FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST THE BORROWER WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHER WISE SEIZING THE BORROWER S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. HOWEVER, LENDER MUST PROVIDE NOTICE TO THE BORROWER UNDER APPLICABLE LAW IN EXECUTING ANY CONFESSED JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, I AM KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND I EXPRESSLY AGREE AND CONSENDER S EXECUTING ON THE JUDGMENT, IN ANY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW. INITIALS: '? C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, AND BY PLACING MY INITIALS NEXT TO EACH STATEMENT WHICH APPLIES, I REPRESENT THAT: INITIALS 1. 1 WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE NOTE. 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE TO MY A NTION. D. I CERTIFY THAT THE BORROWER S ANNUAL INCOME EXCEEDS $10,000.00; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN 1 INITIALED AND SIGNED IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNING. THIS DISCLOSURE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. THIS DISCLOSURE FOR CONFESSION OF JUDGMENT IS EXECUTED ON MARCH 22, 2001. BORROWER: MARK-CRETE, INC. .?:::::•?: ....................:.?.:.:.>:;.::.;;>;:.>: Seal) F. man, r., Pres dent of mark-Crete, Inc. LENDER: WAYPOINT BANK X L74?2 . - Authorized Signer MSER PRO L*ndit R39. U.S. Pat. i T.N. OFF., V*r. 5.13.10.06 (0) Concomrnx 1957, 5001. A$ RIMS RHNwd. -PA 1AAPP$1CFRLPL%D2OFC TR-709 PR-= I CHE IN TERMS AGREEMENT" - 4? Borrower. Mark-Crete, Inc. Lender: Waypoint Bank 71 Texaco Road Mechanicsburg, PA 17055 2? North Second Street P.O. Box 1711 Harrisburg, PA 17105 Principal Amount: $450,000.00 Initial Rate: 5.250% Date of Agreement: September 19, 2002 DESCRIPTION OF EXISTING INDEBTEDNESS. On March 22, 2001, Borrower executed and delivered to Waypoint Bank ("Lender") a Promissory Note in the original principal amount of Four Hundred Thousand Dollars ($400,000.00). DESCRIPTION OF CHANGE IN TERMS. Effective the date of this Agreement, Lender has agreed to increase the amount of the loan from Four Hundred Thousand Dollar; ($400,000.00) to Four Hundred Fifty Thousand Dollars ($450,000.00), PROMISE TO PAY. Mark-Crete, Inc. ("Borrower") promises to pay to Waypoint Bank ("Lender"), or order, in lawful money of the United States of America, on demand, the principal amount of Four Hundred Fifty Thousand & 00/100 Dollars ($450,000.00) or so much as may be outstanding, together with interest on the unpaid outstanding principal balance of each advance. Interest shall be calculated from the date of each advance until repayment of each advance. PAYMENT. Borrower will pay this loan immediately upon Lender's demand. Payment in full is due Immediately upon Lender's demand. Borrower will pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning October 1, 2002, with all subsequent interest payments to be due on the same day of each month offer that. Interest on this Agreement Is computed on a 365/360 simple Interest basis; that Is, by applying the ratio of the annual Interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance Is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate In writing. VARIABLE INTEREST RATE. The interest rate on this Agreement is subject to change from time to time based on changes in an index which is Lender's Prime Rate (the "Index"). This is the rate Lender charges, or would charge, on 90-day unsecured loans to the most creditworthy corporate customers. This rate may or may not be the lowest rate available from Lender at any given time. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each Day. Borrower understands that Lender may make loans based.. on other rates as well. The Index currently is 4.750% per annum. The Interest rate to be applied to the unpaid principal balance of the Note will be at a rate of 0.500 percentage points over the Index, resulting In an Initial rate of 5.250% per annum. NOTICE: Under no circumstances will the interest rate on the Note be more than the maximum rate allowed by applicable law. PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Except for the f may pay without penalty all or a portion of the amount owed earlier than it is due. Early a foregoing, Borrower Borrower of Borrower's obligation to continue to make payments of accrued unpaid interest. payments resy . Rather, not, unless agreed will to by reduce Lender in writing, relieve due. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar lang payments Borroer sends such a payment, Lender may accept it without losing any of Lender's rights under this Agreement, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: Waypoint Bank, 235 North Second Street, P.O. Box 1711, Harrisburg, PA 17105. LATE CHARGE. If a regularly scheduled interest payment is 15 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment or $10.00, whichever is greater. If Lender demands payment of this loan, and Borrower does not pay the loan in full within 15 days after Lender's demand, Borrower also will be charged either 5.000% of the sum of the unpaid principal plus accrued unpaid interest or $10.00, whichever is greater. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at its option, may, 0 permitted under applicable law, increase the variable interest rate on this Agreement to 2.500 percentage points over the Index. The interest rate will not exceed the maximum rate permitted by applicable law. If judgment is entered in connection with this Agreement, interest will continue to accrue on this Agreement after judgment at the Interest rate applicable to this Agreement at the time judgment is entered. LENDER'S RIGHTS. Upon Lender's demand, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on this Agreement and all accrued unpaid interest immediately due, and then Borrower will pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Agreement If Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial In any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Agreement will be governed by, construed and enfoned In accordance with federal law and the laws of the Commonwealth of Pennsylvania. This Agreement has been accepted by Lender in the Commonwealth of Pennsylvania. CHOICE OF VENN. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Dauphin County, Commonwealth of Pennsylvania. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff' would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts. COLLATERAL. Borrower acknowledges this Agreement is secured by collateral described in the Commercial Security Agreement dated March 22, 2001, all the terms and conditions of which are hereby incorporated and made a part of this Agreement. LINE OF CREDIT. This Agreement evidences a revolving line of credit. Advances under this Agreement, as well as directions for payment from Borrower's accounts, may be requested orally or In writing by Borrower or by an authorized person. Lender may, but need not, require that all oral requests be confirmed in writing. Borrower agrees to be liable for all sums either: (A) advanced in accordance with the instructions of an authorized person or (B) credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this Agreement at any time may be evidenced by endorsements on this Agreement or by Lender's internal records, including daily computer print-outs. CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of the original obligation or obligations, including all agreements evidenced or securing the obligation(s), remain unchanged and in full force and effect. Consent by tender to this Agreement does not waive Lender's CHANGE IN TERMS AGREE "'- __ - Loan No: 8875001956 (Continued) Page 2 right to strict performance of the obligation(s) as changed, nor obligate Lender to make any future change in terms. Nothing in this Agreement will constitute a satisfaction of the obligation(s). It is the intention of Lender to retain as liable parties all makers and endorsers of the original obligation(s), including accommodation parties, unless a party is expressly released by Lender in writing. Any maker or endorser, including accommodation makers, will not be released by virtue of this Agreement. If any person who signed the original obligation does not sign this Agreement below, then all persons signing below acknowledge that this Agreement Is given conditionally, based on the representation to Lender that the non-signing party consents to the changes and provisions of this Agreement or otherwise will not be released by it. This waiver applies not only to any initial extension, modification or release, but also to all such subsequent actions. . DISCLOSURE TO BORROWER FOR CONFESSION OF JUDGMENT. An exhibit, titled "DISCLOSURE FOR CONFESSION OF JUDGMENT," is attached to this Agreement and by this reference is made a part of this Agreement just as if all the provisions, terms and conditions of the Exhibit had been fully set forth in this Agreement. SUCCESSOR INTERESTS. The terms of this Agreement shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and ft successors and assigns. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if we report any inaccurate information about your account(s) to a consumer reporting agency. Your written notice describing the specific inaccuracy(i9s) should be sent to us at the following address: Waypoint Bank , 235 North Second Street, P.O. Box 1711, Harrisburg, PA 17105 MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies .under this Agreement without losing them. Borrower and any other person who signs, guarantees or endorses this Agreement, to the extent allowed by law, w,atlve presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Agreement, and unless otherwise expressly stated In writing, no party who signs this Agreement, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for-any length of time) this loan or release any party or guarantor or Collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification Is made. The obligations under this Agreement are joint and several If any portion of this Agreement is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Agreement. CONFESSION OF JUDGMENT. BORROWER 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 BORROWER AFTER A DEFAULT UNDER THIS AGREEMENT AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS AGREEMENT AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS AGREEMENT OR A COPY OF THIS AGREEMENT VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS AGREEMENT TO CONFESS JUDGMENT AGAINST BORROWER 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 AGREEMENT. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE AGREEMENT. THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: MARK-CRETE, l Saw ) F. Mark . ElIftellman, Jr., PrpsfdeMof ' Mark-Crete, inc. LENDER: WAYPOINT BANK X 3494/e___1 Authorized Signer LASER PRO Lwmftg. VOr. 630.00.010 COPT. Rark90 F9rRdN SONIMM, V., 1997, 2004. AN Rigbu Raswved. - PA 1:1APPS%CFRLPl1029C.FC TR-709 PR-= I fC"GE IN TERMS AGREEMENT Loan No: 8875001956 (Continued) Page 2 right to strict performance of the obligation(s) as changed, nor obligate Lender to make any future change in terms. Nothing in this Agreement will constitute a satisfaction of the obligation(s). It is the intention of Lender to retain as liable parties all makers and endorsers of the original obligation(s), including accommodation parties, unless a party is expressly released by Lender in writing. Any maker or endorser, including accommodation makers, will not be released by virtue of this Agreement. If any person who signed the original obligation does not sign this Agreement below, then all persons signing below acknowledge that this Agreement is given conditionally, based on the representation to Lender that the non-signing party consents to the changes and provisions of this Agreement or otherwise will not be released by it. This waiver applies not only to any initial extension, modification or release, but also to all such subsequent actions. DISCLOSURE TO BORROWER FOR CONFESSION OF JUDGMENT. An exhibit, titled "DISCLOSURE FOR CONFESSION OF JUDGMENT," is attached to this Agreement and by this reference is made a part of this Agreement just as if all the provisions, terms and conditions of the Exhibit had been fully set forth in this Agreement. SUCCESSOR INTERESTS. The terms of this Agreement shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if we report any inaccurate information about your account(s) to a consumer reporting agency. Your written notice. describing the specific inaccuracy(ies) should be sent to us at the following address: Waypoint Bank , 235 North Second Street, P.O. Box 1711, Harrisburg, PA 17105 MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this Agreement without losing them. Borrower and any other person who signs, guarantees or endorses this Agreement, to the extent allowed by taw, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Agreement, and unless otherwise expressly stated in writing, no party who signs this Agreement, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security Interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Agreement are joint and several. If any portion of this Agreement is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Agreement. CONFESSION OF JUDGMENT. BORROWER 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 BORROWER AFTER A DEFAULT UNDER THIS AGREEMENT AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS AGREEMENT AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (3500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS AGREEMENT OR A COPY OF THIS AGREEMENT VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS AGREEMENT TO CONFESS JUDGMENT AGAINST BORROWER 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 AGREEMENT. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE AGREEMENT. THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: MARK-CRETE,1 «Nr»r> :.._. By:: Sam F. Mark Iman, Jr., President of Mark-Crete, Inc. LENDER: WAYPOINT BANK X ' Authorized Signer LASER PRO LmdinO vor. S Copt was rswn isl Sow,Rmw, Mc 1027, 2002. AN Righw Reserved. - PA 1-.1APPS%CMLPLW20CfC TR-702 PR-23 DISCLOSUI "?OR CONFESSION OF JU17TENT Borrower: Mark-Crete, Inc. 71 Texaco Road Mechanicsburg, PA 17055 Lender: Waypoint Banc 235 North Second Street P.O. BOX 1711 Harrisburg, PA 17105 This DISCLOSURE FOR CONFESSION OF JUDGMENT is attached to and by this reference Is made a part of the Change In Terms Agreement, dated September 19, 2002, and executed in connection with a loan or other financial accommodations between WAYPOINT BANK and Mark-Crete, Inc. THE UNDERSIGNED BORROWER IS EXECUTING A CHANGE IN TERMS AGREEMENT (the "AGREEMENT") OBLIGATING THE BORROWER TO REPAY THAT AMOUNT. A. 1 UNDERSTAND THAT THE AGREEMENT CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST THE BORROWER IN COURT, AFTER A DEFAULT ON THE AGREEMENT, WITHOUT ADVANCE NOTICE TO THE BORROWER AND WITHOUT OFFERING THE BORROWER AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE AGREEMENT, 13EING FULLY AWARE OF THE BORROWERS RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST THE BORROWER UNDER THE AGREEMENT, I, ON BEHALF OF THE BORROWER, AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO LENDERS ENTERING JJDQMRNT AGAINST THE BORROWER BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INITIALS: ` B. 1 FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST THE BORROWER WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE AGREEMENT ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHER WISE SEIZING THE BORROWERS PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. HOWEVER, LENDER MUST PROVIDE NOTICE TO THE BORROWER UNDER APPLICABLE LAW IN EXECUTING ANY CONFESSED JUDGMENT. IN EXECUTING THE AGREEMENT, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, 1 AM KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WANING THESE RIGHTS, AND I EXPRESSLY AGREE AND CONS EERS EXECUTING ON THE JUDGMENT, IN ANY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW. INITIALS: /jC. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, AND BY PLACING MY INITIALS NEXT TO EACH STATEMENT WHICH APPLIES, I REPRESENT THAT: INITIALS . I WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE AGREEMENT. 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE AGREEMENT TO MY ATTENTION. D. I CERTIFY THAT THE BORROWERS ANNUAL INCOME EXCEEDS $10,000.00; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN 1 INITIALED AND SIGNED IT; AND THAT 1 RECEIVED A COPY AT THE TIME OF SIGNING. THIS DISCLOSURE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. THIS DISCLOSURE FOR CONFESSION OF JUDGMENT IS EXECUTED ON SEPTEMBER 19, 2002. BORROWER: MARK-CRETE, INC. ............... z:N!: `' By:<.::.:?:;.:•::>?`?.:;::?`???:..`::.»=:<'>;:':?>??«??;::{:?::•..........•-?•,? .:.........:.........:..: Seal) F. Mark Eshelman, Jr., President of Mark-Crete, Inc. LENDER: WAYPOINT BANK X Authorized Signer LASER PRO Lwldo , Var. 3.20.00.010 Copr. o1arYnd FIrAncUl SMullont, hu. 1997, 2009. AS Righu Rprwd. - PA 1:1AM1OFWLW40CFC TR-709 PR-n 3 PROMISSORY NOTE x--16 5r 3 3 t4 -- 5-6 Borrower: Mark Crete, Inc. Lender: Sovereign Bank 71 Texaco Road Commercial Banking Division Mechanicsburg, PA 17050 235 N. 2nd Street Harrisburg, PA 17101 Principal Amount: $30,000.00 Date of Note: March 30, 2006 PROMISE TO PAY. Mark Crete, Inc. ("Borrower") promises to pay to Sovereign Bank ("Lender"), or order, in lawful money of the United States of America, the principal amount of Thirty Thousand & 00/100 Dollars ($30,000.00), together with interest at the rate of 7.610% per annum on the unpaid principal balance from March 30, 2006, until paid in full. PAYMENT. Borrower will pay this loan in 59 payments of $604.40 each payment and an irregular last payment estimated at $604.65. Borrower's first payment is due April 30, 2006, and all subsequent payments are due on the same day of each month after that. Borrower's final payment will be due on March 30, 2011, and will be for all principal and all accrued interest not yet paid. Payments include principal and interest. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid Interest; then to principal; then to any late charges; and then to any unpaid collection costs. The annual interest rate for this Note Is computed on a 365/360 basis; that is, by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance Is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, early payments will reduce the principal balance due and may result in Borrower's making fewer payments. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: Sovereign Bank, P. 0. Box 12707 Reading, PA 19612-2707. LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 5.000% of the unpaid portion of the regularly scheduled payment or $ 10.00, whichever is greater. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at its option, may, if permitted under applicable law, increase the interest rate on this Note 3.000 percentage points. The interest rate will not exceed the maximum rate permitted by applicable law. If judgment is entered in connection with this Note, interest.will continue to accrue on this Note after judgment at the existing interest rate provided for in this Note. DEFAULT. Each of the following shall constitute an event of default ("Event of Default") under this Note: Payment Default. Borrower fails to make any payment when due under this Note. Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Insolvency. The dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. Change In Ownership. Any change in ownership of twenty-five percent (25%) or more of the common stock of Borrower. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired. Insecurity. Lender in good faith believes itself insecure. Cure Provisions. If any default, other than a default in payment is curable and if Borrower has not been given a notice of a breach of the same provision of this Note within the preceding twelve (12) months, it may be cured if Borrower, after receiving written notice from Lender demanding cure of such default: (1) cures the default within thirty (30) days; or (2) if the cure requires more than thirty (30) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. PROMISSORY NOTE (Continued) Page 2 ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Note has been accepted by Lender in the Commonwealth of Pennsylvania. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts, and, at Lender's option, to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights provided in this paragraph. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and its successors and assigns. GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER 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 BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT 00%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER 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 NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE -TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: MARK CRETE, INC. By:.? (Seal) F. Ma Eshelman, Jr., President of Mark Crete, Inc. LENDER: SOVEREIGN BANK X 0 - -.?? ? Authorized signer O LASH PRO L-Uq. V.. 6.70.00.004 Cop. HNI-1 R-W SM.6 . Mm. IN7. 2001. M Rlpib Row d. - ?A 0:1000OM MO%CMLft%D2O.PC 11-1111/ PP,2 DISCLOSURE FOR CONFESSION OF JUDGMENT Declarant: Mark Crete, inc. Lender: Sovereign Bank 71 Texaco Road Commercial Banking Division Mechanicsburg, PA 17050 235 N. 2nd Street Harrisburg, PA 17101 DISCLOSURE FOR CONFESSION OF JUDGMENT THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS 30 DAY OF (LJ(:?I 20 6&, A PROMISSORY NOTE FOR $30,000.00 OBLIGATING DECLARANT TO REPAY THAT AMOUNT. A. THE UNDERSIGNED UNDERSTANDS THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST DECLARANT IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO DECLARANT AND WITHOUT OFFERING DECLARANT AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST DECLARANT UNDER THE NOTE, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING JUDGMENT AGAI DECLARANT BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INITIALS: ^"L B. THE UNDERSIGNED FURTHER UNDERSTANDS THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST DECLARANT WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING DECLARANT'S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN ANY MANNER P ITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING DECLARANT ANY ADVANCE NOTICE. INITIALS: C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, THE UNDERSIGNED REPRESENTS THAT: INITIALS 1. DECLARANT WAS REPRESENTED BY DECLARANT'S OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE NOTE. 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE TO DECLARANT'S ATTENTION. THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. DECLARANT: MARK CRETE, INC. By: (Seal) F. Mark Es an, Jr., President of Mark Crete, Inc. WqM reo 1mW1,a, v«. 5.70.00.04 Cap.. "w1me Fk-0r $0Wf . me. ts7, =N. Al Nyiu ft-n . -1-A o:wxurnLMou Fr%KUM.rc 7WI11 t t rw-x Sovereign BankSM August 20, 2007 VIA REGULAR MAIL AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED Mark-Crete, Inc. 71 Texaco Road Mechanicsburg PA 17055 F. Mark Eshelman, Jr., President F. Mark Eshelman, Jr. c/o Mark-Crete, Inc. 71 Texaco Road Mechanicsburg PA 17055 4661-? Re: Indebtedness of Mark-Crete, Inc. (the "Borrower") to Sovereign Bank (the "Bank") as guarantied by F. Mark Eshelman, Jr. (the "Guarantor") Dear Mr. Eshelman: Responsibility for the loan arrangements between the Bank and the Borrower has been transferred. All communications from the Borrower and/or Guarantor to the Bank are to be addressed to Rick Spinicci, Vice President, 355 Broad Street, MC PAl- 746-WO2, Montoursville PA 17754, until further written notice from the Bank. Reference is made to the Promissory Note of the Borrower in the original principal amount of $400,000.00 dated March 22, 2001 and payable to the order of Waypoint Bank as modified by that certain Change in Terms Agreement dated September 19, 2002 (collectively, the "Demand Note'). The Bank is the holder of the Demand Note. The Borrower is in default under the Demand Note in that the Borrower has failed to, among other things, make payments when due and provide the required financial reporting under the Business Loan Agreement and otherwise provide support for the financial covenants contained therein (collectively, the "Demand Note Default'). This letter constitutes formal notice to the Borrower and Guarantor of the occurrence of the Demand Note Default. This letter will also serve as written notice that as a consequence of the occurrence of the Demand Note Default, the Bank has elected to terminate the Borrower's ability to receive advances under the Revolving Line of Credit evidenced by Jeffrey L. Goodman, Esquire Senior Counsel Sovereign Bank MC-WSM-ARO Two Aldwyn Center East Lancaster Avenue and Aidwyn Lane Villanova PA 19085-1420 Telephone: 610-526-6313 Facsimile: 610-520-2389 E-mail: JGoodman@SovereignBank.com August 20, 2007 ' Page 2 of 3 the Demand Note (the "Line of Credit"). Be advised that the Bank shall make no loans or advances under the Line of Credit, and that the Borrower shall have no right to re-borrow any amounts of the Line of Credit that may be repaid. Similarly, the Bank hereby rescinds any other un-funded commitments to advance or lend money. Effective immediately, the Bank has elected to increase the rate of interest charged on the unpaid principal balance of the Demand Note to the default rate of interest provided for in the Demand Note, which is the Index, as that term is defined in the Demand Note, plus $2.500% (the "Demand Note Default Interest Rate"). The Borrower may continue to receive invoices for payments under the Demand Note that do not reflect this change in interest rate. The failure of the Bank to forward invoices to the Borrower reflecting payments at the Demand Note Default Interest Rate is in no event a waiver of the imposition by the Bank of the Demand Note Default Interest Rate under the Demand Note as of the date set forth herein. As a result of the Borrower's default, the Bank has elected to exercise its option to declare the entire unpaid principal balance of the Demand Note and all accrued and unpaid interest to be immediately due and payable. As of August 20, 2007, there is unpaid, due and owing to the Bank under the Demand Note the amount of $456,175.32. Demand is hereby made for the immediate payment in full of all amounts which are due and which may become due under the Demand Note. The balance due under the Demand Note may increase or decrease as a result of the receipt of payments and the proceeds of collateral securing the Demand Note and the accrual of interest, late charges, costs of collection and other fees, costs and expenses. Therefore, immediately prior to remitting payment, please contact Rick Spinieci at 570-368-5148 to obtain final payoff amounts and remittance instructions. Reference is also made to the Promissory Note of the Borrower in the original principal amount of $30,000.00 dated March 30, 2006 and payable to the order of Sovereign Bank (the "Term Note"). The Borrower is in default under the Term Note in that the Borrower has failed to, among other things, make payments when due and provide the required financial reporting under the Business Loan Agreement and otherwise provide support for the financial covenants contained therein (collectively, the "Term Note Default"). This letter constitutes formal notice to the Borrower and Guarantor of the occurrence of the Term Note Default. Effective immediately, the Bank has elected to increase the rate of interest charged on the unpaid principal balance of the Term Note to the default rate of interest provided for in the Tenn Note, which is the 10.61 % per annum (the "Term Note Default Interest Rate"). The Borrower may continue to receive invoioes for payments under the Term Note that do not reflect this change in interest rate. The failure of the Bank to forward invoices to the Borrower reflecting payments at the Tenn Note Default Interest Rate is in no event a waiver of the imposition by the Bank of the Term Note Default Interest Rate under the Tenn Note as of the date set forth herein. August 20, 2007 Page 3 of 3 As a result of the Borrower's default, the Bank has elected to exercise its option to declare the entire unpaid principal balance of the Term Note and all accrued and unpaid interest to be immediately due and payable. As of August 20, 2007, there is unpaid, due and owing to the Bank under the Term Note the amount of $25,824.22. Term is hereby made for the immediate payment in full of all amounts which are due and which may become due under the Term Note. The balance due under the Term Note may increase or decrease as a result of the receipt of payments and the proceeds of collateral securing the Term Note and the accrual of interest, late charges, costs of collection and other fees, costs and expenses. Therefore, immediately prior to remitting payment, please contact Rick Spinicci at 570-368-5148 to obtain final payoff amounts and remittance instructions. Nothing contained in this letter is intended as a waiver or release of any of the terms or provisions of the Demand Note, the Term Note or of any and all other notes, instruments or agreements between the Bank and the Borrower and/or Guarantor (the "Loan Documents"), including, without limitation, the requirement that the Borrower and/or Guarantor pay on demand any amount so payable under the provisions of the instrument evidencing the same. The Bank reserves all rights and remedies available to it under the Loan Documents, and applicable law, all of which are expressly hereby reserved. No discussions between the Bank and the Borrower and/or Guarantor concerning this notification, other loan relationships between the Bank and the Borrower and/or Guarantor, or any other matter shall imply an agreement on the part of the Bank to waive any of its rights and remedies or to forbear from taking any action authorized by the Loan Documents or applicable law, whether or not such discussions may be continuing. The acceptance of any partial payment of any of the obligations of the Borrower and/or Guarantor to the Bank shall not be deemed a waiver or limitation of any of the Bank's rights reserved herein as to the full amount of any unpaid balance. Any delay or forbearance by the Bank in the enforcement or pursuit of any of its rights and remedies under the Loan Documents or applicable law shall not constitute a waiver thereof, nor shall it be a bar to the exercise of the Bank's rights or remedies at a later date. Should you have any questions, please do not hesitate to contact my office. JLG/dm Very truly GOODMAN, ESQUIRE cc: Rick Spinicci, Vice President A. Signature ? Addressee B. Repelifed by (PifertW Name) C. Date of Delivery Is delivery address different from item 1 ? ? Yes If YES, enter delivery address below: ? No 3. Seq*e Type Certifled Mail ? Express Map 13 Registered a Ream Raoerpc forAiaramnaes ? Insured Map 0 C.O.D. 4. Resbtted Delivery? Mou feel) O Yes 7006 2150 0000 9313 5970 ? # ? ?. °' ?vicefrse Attic r # d #b i of the mall we, or en *0 front if Vabo rnits• 1. Article Addressed to: Mark-Crete, Inc. 71 Texaco Road Mechanicsburg PA 17055 F. Mark Eshelman, Jr., President 1 4 =Dernestie: Return Receipt 102595.0244-1540 ?cf' A. Signat ! 1 ? Agent ? Addressee t?•r B ' by (f'H Name) C. Date of Delivery D. Is delivery address different from item 1 ? ? Yes `~? `l If YES, enter delivery address below: ? No F. Mark Eshelman, Jr. c/o Mark-Crete, Inc. I 71 Texaco Road Typo Mechanicsburg PA 17055 3. Sam Cert(fled Map ? Express Map - 13 Registered ? Raw Receipt for Meratma a p?, Insured rM?all??C...O.D. 1 4. Restricted `iv Wert'? you FSO i 6 7006 2150 0000 9313 5987 4" Oriri .f ? Return Receipt 102595-o2-M-1640 ,bOMMERCIAL GUARANTY` Borrower: Mark-Crete, Inc. 71 Texaco Road Mechanicsburg, PA 17055 Lender: Waypoint Bank 235 North Second Street P.O. Box 1711 Harrisburg, PA 17105 Guarantor: F. Mark Eshelman, Jr. 307 E. Marble Street Mechanicsburg, PA 17055 AMOUNT OF GUARANTY. The amount of this Guaranty Is Unlimited. CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, F. Mark Eshelman, Jr. ("Guarantor") absolutely and unconditionally guarantees and promises to pay to Waypoint Bank ("Lender") or its order, on demand, in legal tender of the United States of America, the Indebtedness (as that term Is defined below) of Mark-Crete, Inc. ("Borrower") to Lender on the terms and conditions set forth in this Guaranty. Under this Guaranty, the liability of Guarantor Is unlimited and the obligations of Guarantor are continuing. INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes any and all of Borrower's indebtedness to Lender and Is used in the most comprehensive sense and means and includes any and all of Borrower's liabilities, obligations and debts to Lender, now existing or hereinafter incurred or created, including, without limitation, all loans, advances, interest, costs, debts, overdraft indebtedness, credit card indebtedness, lease obligations, other obligations, 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 voluntarily or involuntarily incurred, due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined; whether Borrower may be liable Individually or jointly with others, or primarily or secondarily, 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 otherwise. DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any notice to Guarantor or to Borrower, and will continue in full force until all Indebtedness Incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have been performed In full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to Lender, by certified mail, at Lender's address listed above or such other place as Lender may designate in writing. Written revocation of this Guaranty will apply only to advances or new Indebtedness created after actual receipt by Lender of Guarantor's written revocation. For this purpose and without limitation, the term "new Indebtedness" does not include Indebtedness which at the time of notice of revocation is contingent, untiquidated, undetermined or not due and which later becomes absolute, liquidated, determined or due. This Guaranty will continue to bind Guarantor for all Indebtedness incurred by Borrower or committed by Lender prior to receipt of Guarantor's written notice of revocation, including any extensions, renewals, substitutions or modifications of the Indebtedness. All renewals, extensions, substitutions, 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 Guarantor's estate as to Indebtedness created both before and after Guarantor's death or Incapacity, regardless of Lender's actual notice of Guarantor's death. Subject to the foregoing, 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. Release of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this Guaranty. A revocation Lender receives from any one or mare Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. It Is anticipated that fluctuations may occur in the aggregate amount of Indebtedness covered by this Guaranty, and Guarantor specifically acknowledges and agrees that reductions In the amount of Indebtedness, even to zero dollars (;0.00), prior to Guarantor's written revocation of this Guaranty shall not constitute a termination of this Guaranty. This Guaranty Is binding upon Guarantor and Guarantor's heirs, successors and assigns so " as any of the guaranteed Indebtedness remains unpaid and even though the Indebtedness guaranteed may from time to time be zero dollars (;0.00). GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice or demand and without lessening Guarantor's liability under this Guaranty, from time to time: (A) prior to revocation as set forth above, to make one or more additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend additional credit to Borrower, (B) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for payment or other terms of the Indebtedness or any part of the Indebtedness, including Increases and decreases of the rate of interest on the Indebtedness;. extensions may be repeated and may be for longer than the original loan term; (C) to take and hold security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such security, with or without the substitution of new collateral; (D) to release, substitute, agree not to sue, or deal with any one or more of Borrower's sureties, endorsers, or other guarantors on any terms or In any manner Lender may choose; (E) to determine how, when and what application of payments and credits shall be made on the Indebtedness (F) to apply such security and direct the order or manner of sale thereof, including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine; (G) to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this Guaranty in whole or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) no representations or agreements of any kind have been made to Guarantor which would limit or quality in any way the terms of this Guaranty; (B) this Guaranty Is executed at Borrower's request and not at the request of Lender, (C) Guarantor has full power, right and authority to enter into this Guaranty; (D) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor, (E) Guarantor has not and will not, without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein; (F) upon Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, and all such financial information which currently has been, and all future financial Information which will be provided to Lender Is and will be true and correct In all material respects and fairly present Guarantor's financial condition as of the dates the financial information Is provided; (G) no material adverse change has occurred in Guarantor's finandW condition since the date of the most recent financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's financial condition; (H) no litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or threatened; (1) Lender has made no representation to Guarantor as to the creditworthiness of Borrower, and (J) Guarantor has established adequate means of obtaining from Borrower on a continuing basis Information regarding Borrower's financial condition. Guarantor agrees to keep adequately Informed from such means of any facts, events, or circumstances which might in any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of Its relationship with Borrower. GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue lending money or to extend other credit to Borrower, (B) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor, (D) to proceed directly against or exhaust COMMERCIAL GUARANTY ' __J Loan No: 8875001956 (Continued) Page 2 any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lenders power; or (G) to commit any act or omission of any kind, or at any time, with respect to any matter whatsoever. Guarantor also waives 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 Lender from bringing any action, Including a claim for deficiency, against Guarantor, before or after Lenders commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantors rights to proceed against Borrower for reimbursement, including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (C) any disability or otter defense of Borrower, of any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in full In legal tender, of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness; (E) any statute of limitations, H at any time any action or suit brought by Lender against Guarantor Is commenced, there is outstanding Indebtedness of Borrower to Lender 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 Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise, or by any third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrowers trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty. Guarantor further waives and agrees 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 right, 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 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 shalt be effective only to the extent permitted by law or public policy. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantors accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds If there is a default, and Lender may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to Lender, whether now existing or hereafter created, shall be superior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, 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 creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to the payment of the claims of both Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the Indebtedness of Borrower to Lender. Guarantor does 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 effective only for the purpose of assuring to Lender full payment in legal tender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to Guarantor shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor, from time to time to execute and Me financing statements and continuation statements and to execute such other documents and to take such other actions as Lender dooms necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. MISCELLANEOUS 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 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 amendment. Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lenders costs and expenses, including Lenders attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the casts and expenses of such enforcement. Costs and expenses include Lenders attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the court. Caption Headings. 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. Goveming Law. This Guaranty will be governed by, construed and enforced in accordance with federal law and the laws of the Commonwealth of Pennsylvania. This Guaranty has been accepted by Lender in the Commonwealth of Pennsylvania. Choice of Venue. If there Is a lawsuit, Guarantor agrees upon Lenders request to submit to the jurisdiction of the courts of Dauphin County, Commonwealth of Pennsylvania. Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantors attorney with respect to this Guaranty, the Guaranty fully reflects Guarantors intentions and parol evidence is not required to interpret the terms of this Guaranty. Guarantor hereby Indemnifies and holds Lender harmless from all losses, claims, damages, and costs pncluding Lender's attorneys, fees) suffered or incurred by Lender as a result of any breach by Guarantor of the warranties, representations and agreements of this paragraph. Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular stroll be deemed to have been used in the plural where the context and construction so require; and where there. Is more than one Borrower named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words Borrower'" and "Guarantor" respectively shall mean all and any one or more of them. The words "Guarantor," Borrower," and "Lender" include the heirs, successors, assigns, and transferees of each of them. If a court finds that any provision of this Guaranty Is not valid or should not be enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even lt a provision of this Guaranty may be found to be Invalid or unenforceable. If any one or more of Borrower or Guarantor are corporations, partnerships, limited liability companies, or similar entities, it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on their behalf, and any Loan indebtedness made or created in reliance upon the `-? COMMERCIAL GUARANTY Loan No: 8875001956 (Continued) Page 3 professed exercise of such powers shall be guaranteed under this Guaranty. Notices. Unless otherwise provided by applicable law, any notice required to be given under this Guaranty shall be given in writing, and, exospt for revocation notices by Guarantor, shall be effective when actually delivered, when actually received by telefassimAe (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, If malted, when deposited in the United States maN, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Guaranty. All revocation notices by Guarantor shall be in writing and shall be effective upon delivery to Lender as provided in the section of this Guaranty entitled "DURATION OF GUARANTY." Any party may change its address for notices under this Guaranty by giving formal written notice to the other parries, specifying that the purpose of the notice is to change the party's address. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicable law, if there is more than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors. No Waiver by Lender. Lender shall not be deemed to have 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 this Guaranty shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and Guarantor, shall constitute a waiver of any of Lenders rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of Lender Is required under this Guaranty, the granting of such consent by Lender In any instance shag not constitute continuing consent to subsequent instances where such consent Is required and in all crises such consent may be granted or withheld in the sole discretion of Lender. Successors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. Waive Jury. Lender and Guarantor hereby waive the right to any jury trial In any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. TAX RETURNS AND FINANCIAL INFORMATION. Borrower will submit to Lender the guarantors financial statements and signed federal tax returns compiled by a certified public accountant satisfactory to Lender no later than ninety (90) days after the end of each fiscal year. All financial reports required to be provided under this Agreement shall be prepared in accordance with generally accepted accounting principles, applied on a consistent basis and certified by Borrower as being true and correct. CONFESSION OF JUDGMENT. 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 THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; 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 GUARANTOR 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. GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. CURE PROVISIONS. If any default, other than a default in payment is curable and if the undersigned has not been given a notice of a breach of the same provision of this agreement or the Note within the preceding twelve (12) months, it may be cured (and no event of default will have oocured) If the undersigned, after receiving written notice from Lender demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) If the cure requires more than fifteen (15) days, immediately initiates steps which Lender deems In Lender's sole discretion to be sufficient to sure the default and thereafter continues and completes all reasonalbe and necessary steps sufficient to produce compliance as soon as reasonably practical. GUARANTOR LIABILITY. The Indebtedness under this Guaranty of the undersigned is and shall be joint, several, unlimited, absolute, primary, and continuing, and may be enforced without the necessity of prior resort by Lender to any other rights, remedies, or securities under the Related Documents or otherwise. DISCLOSURE TO GUARANTOR FOR CONFESSION OF JUDGMENT. An exhibit, titled -DISCLOSURE FOR CONFESSION OF JUDGMENT," is attached to this Guaranty and by this reference is made a part of this Guaranty just as if all the provisions, terms and conditions of the Exhibit had been fully set forth in this Guaranty. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall Include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means Mark-Crete, Inc., and all other persons and entities signing the Note in whatever capacity. Guarantor. The word "Guarantor" means each and every person or entity signing this Guaranty, including without limitation F. Mark Eshelman, Jr.. Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Note. Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty. Lender. The word "Lender" means Waypoint Bank , its successors and assigns. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. 4 r, COMMERCIAL GUARANTY • Loan No: 8875001956 (Continued) Page 4 GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL GUARANTY AND GUARANTOR AGREES TO IT& TERM& THIS COMMERCIAL GUARANTY IS DATED MARCH 22, 2001. THIS GUARANTY IS awEN UNDER SEAL. AND IT IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. GUARANTOR: ?ii:+•:vi' •<:': F"• • •{.XE• r•>..,:;::?; 4:::?"}:>Y'v::iri:?(:=iv: ?:;:•iir::::+i ::vi:•:•i:??i:tiviii: iJ F. MIM Wheel man, r., kKUMuelly MISER PRO Lad?9, R99. U.S. Pa. 3 T.M. OFF., V•r. 3.13.10.03 W Co9antr•x 1497, 2001. N Rights R•3•r w - - PA 0APPS\CPRLPL%E20J'C TR-709 PR-M DISCLO$' '7E FOR CONFESSION OF ,? 7GMENT BOITOWer: Mark-Crete, Inc. 71 Texaco Road Mechanicsburg, PA 17055 Guarantor: F. Mark Eshelman, Jr. 307 E. Marble Street Mechanicsburg, PA 17055 Lender: Waypoint Bank 235 North Second Street P.O. Box 1711 Harrisburg, PA 17105 This DISCLOSURE FOR CONFESSION OF JUDGMENT is attached to and by this reference is made a part of the Commercial Guaranty, dated March 22, 2001, and executed in connection with a loan or other financial accommodations between WAYPOINT BANK and Mark-Crete, inc. ON THE DATE HEREOF, GUARANTOR IS EXECUTING A GUARANTY FOR AN UNLIMITED AMOUNT. A. 1 UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST THE GUARANTOR IN COURT, AFTER A DEFAULT ON THE GUARANTY, WITHOUT ADVANCE NOTICE TO THE GUARANTOR AND WITHOUT OFFERING THE GUARANTOR AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF THE GUARANTOR S RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST THE GUARANTOR UNDER THE GUARANTY, I, ON BEHALF OF THE GUARANTOR, AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND EXPRESSLY AGREES AND CONSENTS TO LENDER S ENTERING JU AMT AGAINST THE GUARANTOR BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INITIALS: B. 1 FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST THE GUARANTOR WITHOUT ADVANCE N071CE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, TO EXECUTE. ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHER WISE SEIZING THE GUARANTOR S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. HOWEVER, LENDER MUST PROVIDE N071CE TO THE GUARANTOR UNDER APPLICABLE LAW IN EXECUTING ANY CONFESSED JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF THE GUARANTOR S RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, I, ON BEHALF OF THE GUARANI , AM KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAMNG THESE RIGHTS, AND EXPRESSLY AGREES AND CONSENTS TO S EXECUTING ON THE JUDGMENT, IN ANY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW. INITIALS: r 44 C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, AND BY PLACING MY INITIALS NEXT TO EACH STATEMENT WHICH APPLIES, I REPRESENT THAT: INITIALS 1. 1 WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY. 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY TO TTENTION. N. D. I CERTIFY THAT THE GUARANTOR S ANNUAL INCOME EXCEEDS $10,000.00; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN 1 INITIALED AND SIGNED IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNING. THIS DISCLOSURE HAS BEEN SIGNED AND SEALED 13Y THE UNDERSRMED. THIS DISCLOSURE FOR CONFESSION OF JUDGMENT IS EXECUTED ON MARCH 22, 2001. GUARANTOR: .::: F. Mfirl(Es man, Jr., nd v ua y (LASER PRO L9?CYq, Ry. U.S. P&L t T.M. OFF., VN. SASAOAS(C) Cax Wex 1997, 2001. AN IUghte R999rwd. -PA 1:V"S%CF1ULPL%E20FC TR-709 PR-= COMMERCIAL GUARANTY ?k Borrower: Mark Crete, Inc. Lender' Sovereign Bank 71 Texaco Road Commercial Banking Division Mechanicsburg, PA 17050 235 N. 2nd Street Harrisburg, PA 17101 Guarantor: F. Mark Eshelman, Jr. c/o Mark Crete, Inc. 71 Texaco Road Mechanicsburg, PA 17050 CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionally guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the performance and discharge of all Borrower's obligations under the Note and the Related Documents. This is a guaranty of payment and performance and not of collection, so Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against anyone else obligated to pay the Indebtedness or against any collateral securing the Indebtedness, this Guaranty or any other guaranty of the Indebtedness. Guarantor will make any payments to Lender or its order, on demand, in legal tender of the United States of America, in same-day funds, without set-off or deduction or counterclaim, and will otherwise perform Borrower's obligations under the Note and Related Documents. Under this Guaranty, Guarantor's liability is unlimited and Guarantor's obligations are continuing. INDEBTEDNESS. The word "Indebtedness" as used in this Guaranty means all of the principal amount outstanding from time to time and at any one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, attorneys' fees, arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired, that Borrower individually or collectively or interchangeably with others, owes or will owe Lender. "Indebtedness" includes, without limitation, loans, advances, debts, overdraft indebtedness, credit card indebtedness, lease obligations, other obligations, and liabilities of Borrower, and any present or future judgments against Borrower, future advances, loans or transactions that renew, extend, modify, refinance, consolidate or substitute these debts, liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by their terms or acceleration; absolute or contingent; liquidated or unliquidated; determined or undetermined; direct or indirect; primary or secondary in nature or arising from a guaranty or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or non-negotiable instrument or writing; originated by Lender or another or others; barred or unenforceable against Borrower for any reason whatsoever; for any transactions that may be voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated then reduced or extinguished and then afterwards increased or reinstated. If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties. Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties. CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO TIME. DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any notice to Guarantor or to Borrower, and will continue in full force until all the Indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have been performed in full. if Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to Lender, by certified mail, at Lender's address listed above or such other place as Lender may designate in writing. Written revocation of this Guaranty will apply only to advances or new Indebtedness created after actual receipt by Lender of Guarantor's written revocation. For this purpose and without limitation, the term "new Indebtedness" does not include the Indebtedness which at the time of notice of revocation is contingent, unliquidated, undetermined or not due and which later becomes absolute, liquidated, determined or due. This Guaranty will continue to bind Guarantor for all the Indebtedness incurred by Borrower or committed by Lender prior to receipt of Guarantor's written notice of revocation, including any extensions, renewals, substitutions or modifications of the Indebtedness. All renewals, extensions, substitutions, 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 Guarantor's estate as to the Indebtedness created both before and after Guarantor's death or incapacity, regardless of Lender's actual notice of Guarantor's death. Subject to the foregoing, 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. Release of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this Guaranty. A revocation Lender receives from any one or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. It is anticipated that fluctuations may occur in the aggregate amount of the Indebtedness covered by this Guaranty, and Guarantor specifically acknowledges and agrees that reductions in the amount of the Indebtedness, even to zero dollars (80.00), prior to Guarantor's written revocation of this Guaranty shall not constitute a termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and assigns so long as any of the Indebtedness remains unpaid and even though the Indebtedness may from time to time be zero dollars (80.00). GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice or demand and without lessening Guarantor's liability under this Guaranty, from time to time: (A) prior to revocation as set forth above, to make one or more additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend additional credit to Borrower; (B) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for payment or other terms of the Indebtedness or any part of the Indebtedness, including increases and decreases of the rate of interest on the Indebtedness; extensions may be repeated and may be for longer than the original loan term; (C) to take and hold security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such security, with or without the substitution of new collateral; (D) to release, substitute, agree not to sue, or deal with any one or more of Borrower's sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose; (E) to determine how, when and what application of payments and credits shall be made on the Indebtedness; (F) to apply such security and direct the order or manner of sale thereof, including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine; (G) to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this Guaranty in whole or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) no representations or agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this Guaranty is COMMERCIAL GUARANTY (Continued) Page 2 executed at Borrower's request and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into this Guaranty; (D) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has not and will not, without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein; (F) upon Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, and all such financial information which currently has been, and all future financial information which will be provided to Lender is and will be true and correct in all material respects and fairly present Guarantor's financial condition as of the dates the financial information is provided; (G) no material adverse change has occurred in Guarantor's financial condition since the date of the most recent financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's financial condition; (H) no litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or threatened; (1) Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and (J) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or circumstances which might in any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower. GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following: Annual Statements. As soon as available, but in no event later than one-hundred-twenty (120) days after the end of each fiscal year, Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor. Tax Returns. As soon as available, but in no event later than thirty (30) days after the applicable filing date for the tax reporting period ended, Federal and other governmental tax returns, prepared by Guarantor. All financial reports required to be provided under 'this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and certified by Guarantor as being true and correct. GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue lending money or to extend other credit to Borrower; (8) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor; (D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lender's power; or (G) to commit any act or omission of any kind, or at any time, with respect to any matter whatsoever. Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any rights or defenses arising by reason of (A) any "one action" or "anti-deficiency" law or any other law which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (C) any disability or other defense of Borrower, of any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in full in legal tender, of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness; (E) any statute of limitations, if at any time any action or suit brought by Lender against Guarantor is commenced, there is outstanding Indebtedness 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 Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise, or by any third party, on the Indebtedness 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 federal or state bankruptcy law or law for the reW of debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty. Guarantor further waives and agrees 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 right, 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 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. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, whether now existing or hereafter created, shall be superior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, 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 creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to the payment of the claims of both Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the Indebtedness. Guarantor does 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 effective only for the purpose of assuring to Lender full payment in legal tender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to Guarantor shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor, from time to time to file financing statements and continuation statements and to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. MISCELLANEOUS 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 COMMERCIAL GUARANTY (Continued) Page 3 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 amendment. Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's costs and expenses, including Lender's attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to 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 lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the court. Caption Headings. 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. Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Guaranty has been accepted by Lender in the Commonwealth of Pennsylvania. Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parol evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses, claims, damages, and costs (including Lender's attorneys' fees) suffered or incurred by Lender as a result of any breach by Guarantor of the warranties, representations and agreements of this paragraph. Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectively shall mean all and any one or more of them. The words "Guarantor," "Borrower," and "Lender" include the heirs, successors, assigns, and transferees of each of them. If a court finds that any provision of this Guaranty is not valid or should not be enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid or unenforceable. If any one or more of Borrower or Guarantor are corporations, partnerships, limited liability companies, or similar entities, it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on their behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Notices. Unless otherwise provided by applicable law, any notice required to be given under this Guaranty shall be given in writing, and, except for revocation notices by Guarantor, shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Guaranty. All revocation notices by Guarantor shall be in writing and shall be effective upon delivery to Lender as provided in the section of this Guaranty entitled "DURATION OF GUARANTY." Any party may change its address for notices under this Guaranty by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicable law, if there is more than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors. No Waiver by Lender. Lender shall not be deemed to have 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 this Guaranty shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and Guarantor, shall constitute a waiver of any of Lender's rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Guaranty, the granting of such consent by Lender 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 Lender. Successors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. Waive Jury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. ERROR AND OMISSIONS. In consideration of the loan made by Sovereign Bank, (hereafter referred to as "Lender" to the undersigned, the undersigned does hereby represent the promise as follows: Upon request made by the Lender, its successors or assigns, the undersigned will execute such documents as are reasonable to provide assurance to Lender (1) that the obligations undertaken by the undersigned in connection with said loan will be faithfully performed; (2) that any and all documents and instruments signed by the undersigned in connection with said loan are accurate statements as to the truth of the matters set forth in them and constitute binding obligations upon the undersigned according to their tenor; or (3) as to the amount of said loan outstanding from time to time, and the date and amount of payments made in respect to said loan. Upon request made by the Lender, its successors or assigns, the undersigned will re-execute any document or instrument signed in connection with said loan or execute any document or instrument that ought to have been signed at or before closing of said loan, or which was incorrectly drafted and signed, to facilitate full execution of the appropriate documents. All such requests shall receive the full cooperation and compliance by the undersigned within seven (7) days of the making of the request set forth above. The failure of the undersigned to comply with their obligations hereunder shall constitute a default under the documents executed in connection with said loan and shall entitle Lender or its successors and assigns, to the remedies available for default under the documents executed by the undersigned. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means Mark Crete, Inc. and includes all co-signers and co-makers signing the Note and all their successors and assigns. GAAP. The word "GAAP" means generally accepted accounting principles. Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation F. Mark Eshelman, Jr., and in each case, any signer's successors and assigns. COMMERCIAL GUARANTY (Continued) Page 4 Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lender. Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty. Lender. The word "Lender" means Sovereign Bank, its successors and assigns. Note. The word "Note" means and includes without limitation all of Borrower's promissory notes and/or credit agreements evidencing Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of and substitutions for promissory notes or credit agreements. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. CONFESSION OF JUDGMENT. 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 THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; 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 GUARANTOR 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. GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. EACH UNDERSIGNED GUARANTOR 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 EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED MARCH 30, 2006. THIS GUARANTY IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. GUARANTOR: X ? (Seal) F. Mark EifflMman, Jr. INDIVIDUAL ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF ) SS On this, the day of , 20 , before me , the undersigned Notary Public, personally appeared F. Mark Eshelman, Jr., known to me (or satis actori y proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he or she executed the same for the purposes therein contained. In witness whereof, I hereunto set my hand and official seal. Notary Public in and for the State of tASER FRO L?01np V 6 7000 004 COp IWMna R nWMW V*WM& Int. 1M7, 2005. N RIO" Rw . - FA 0:W000WdPR0XCRVLK1E20.FC 7R-11111 FR-2 1 DISCLOSURE FOR CONFESSION OF JUDGMENT Borrower: Mark Crete, Inc. Lender: Sovereign Bank 71 Texaco Road Commercial Banking Division Mechanicsburg, PA 17050 235 N. 2nd Street Harrisburg, PA 17101 Declarant: F. Mark Eshelman, Jr. C/o Mark Crete, Inc. 71 Texaco Road Mechanicsburg, PA 17050 DISCLOSURE FOR CONFESSION OF JUDGMENT I AM EXECUTING, THIS 50 DAY OF mQl-ih , 20O?0, A GUARANTY OF A PROMISSORY NOTE FOR $30,000.00 OBLIGATING ME TO REPAY THAT AMOUNT. A. I UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE GUARANTY, WITHOUT ADVANCE NOTICE TO ME AND WITHOUT OFFERING ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST ME UNDER THE GUARANTY, I AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND 1 EXPRESSLY AGREE AND CONSENT TO LENDER'S ENTERI DGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INITIALS: B. I FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, I AM KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND i EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN ANY NER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY ADVANCE NOTICE, INITIALS: -'' C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, I REPRESENT THAT: INITIALS 1 WAS REPRESENTED BY MY OWN ll11OEPENDENT LEGAL COUNSEL. IN .CONNECTION WITH THE GUARANTY. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY TO MY ATTENTION. D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS $10,000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN I INITIALED AND SIGNED IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNING. THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. DECLARANT: X `-? F. ar a an, Jr. (Sea]) LASER PRO nY. Vr 5.30.00-004 Cop seluaono Inc 1N7, 3006. All Ripno RN,rrtl. M 6.1000tIMLLP1101C/41LrUpSO,FC TI1-11111 PR-2 9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOVEREIGN BANK CIVIL ACTION Plaintiff vs. No. MARK-CRETE, INC. and F. MARK ESHELMAN, JR., Defendants Confession of Judgment Commonwealth of Pennsylvania County of Delaware AFFIDAVIT OF NON-MILITARY SERVICE Before me, a Notary Public for Delaware County, Pennsylvania, personally appeared Jeffrey L. Goodman, Esquire, Attorney for the Plaintiff in the above entitled case, who being duly sworn or affirmed according to law deposes and says, that the Defendant Mark-Crete, Inc. is not in the military service of the United States of America, that he has personal knowledge that the said Defendant's last-known address is c/o F. Mark Eshelman, Jr., President, 71 Texaco Road, Mechanicsburg PA 17055. Sworn and subscribed before me this day of OJa o/, 2007 Aotary Public My Commission expires: PENNSYLVANIA COMMONWEALTH wtaHOFSaw Pe Padnor nn'rfer V4).' &Iav NdWN Coin res Feb. 16, 2011 Memb ?n°°i "DCiation of Notaries Goodman, Esquire, As ttorney for Plaintiff 4-536-ARO 2 Aldwyn Lane Villanova PA 19085-1420 I.D. No. 62689 r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOVEREIGN BANK CIVIL ACTION Plaintiff vs. No. MARK-CRETE, INC. and F. MARK ESHELMAN, JR., Defendants Confession of Judgment Commonwealth of Pennsylvania County of Delaware AFFIDAVIT OF NON-MILITARY SERVICE Before me, a Notary Public for Delaware County, Pennsylvania, personally appeared Jeffrey L. Goodman, Esquire, Attorney for the Plaintiff in the above entitled case, who being duly sworn or affirmed according to law deposes and says, that the Defendant F. Mark Eshelman, Jr. is not in the military service of the United States of America, that he has personal knowledge that the said Defendant's last-known address is 71 Texaco Road, Mechanicsburg PA 17055. Sworn and subscribed before me this Q' day of Ot 2007 "Wary Public My Commission expires: 9"ON jo uoplooew elu*AjA*uuad 'aegw9n t k0 a 19t 'ge! 9eaidx3 uolsgwwoo M kuno0 a,em9Ra ',*L aouM olIgnd AMON 'Suinea aejluuer CMS 19MON . Goodman, Esquire, A ttorney for Plaintiff 2 -536-ARO 2 Aldwyn Lane Villanova PA 19085-1420 I.D. No. 62689 VINVAIASNN3d JO HI IVBMNOWW00 V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOVEREIGN BANK CIVIL ACTION Plaintiff vs. No. MARK-CRETE, INC. and F. MARK ESHELMAN, JR., Defendants Confession of Jud went OFFICE OF THE PROTHONOTARY OF CUMBERLAND COUNTY CERTIFICATE OF RESIDENCE PA. R.C.P. 236 I hereby certify that the precise mailing address of the Plaintiff is: Two Aldwyn Center East Lancaster Avenue and Aldwyn Lane Villanova PA 19085-1420 I hereby certify that the precise mailing address of the Defendant Mark-Crete, Inc. is: c/o F. Mark Eshelman, Jr., President 71 Texaco Road Mechanicsburg PA 17055 I hereby certify that the precise mailing address of the Defendant F. Mark Eshelman, Jr. is: 71 Texaco Road Mechanicsburg PA 17055 Dated: October 29, 2007 By: 7 L. Goodman, Esquire Attorney for Defendants 70-536--ARO 2 Aldwyn Lane Villanova PA 19085-1420 Phone: 610-526-6313 I.D. No. 62689 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOVEREIGN BANK CIVIL ACTION Plaintiff vs. No. MARK-CRETE, INC. and F. MARK ESHELMAN, JR., Defendants Confession of Judgment Commonwealth of Pennsylvania County of AFFIDAVIT OF DEFAULT AND BUSINESS TRANSACTION Rick Spinicci, being duly sworn according to law, deposes says he is Vice President for Sovereign Bank, Plaintiff, herein; that he is authorized to make this affidavit on plaintiff s behalf, that a true and correct copy of the notes and guaranties containing the warrant of attorney upon which judgment is confessed are attached to the Complaint filed in this action as Exhibits "A", "B", "D" and "E"; that the notes and guaranties constitute business transactions between plaintiff and defendants; that judgment is not being confessed against individual persons in connection with a consumer credit transaction; and that Defendants are in default under the notes and guaranties for the reasons set forth in the Complaint. Sworn and subscribed before me this '14 day of Or-f0bR / , 2007 Notary Public My Commission Expires IS REIG By: ` L Rick Spinicci Vice President COMMONWEALTH OF PENNSYLVANIA Notarw Seei Public JoWer Devine, Notary Pub My Corny ission Em Feb. 16 2011 Member, Pennsylvania Assoatation of Notaries IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOVEREIGN BANK CIVIL ACTION Plaintiff VS. No. MARK-CRETE, INC. . and F. MARK ESHELMAN, JR., Defendants Confession of Judgment NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: Mark-Crete, Inc. c/o F. Mark Eshelman, Jr., President 71 Texaco Road Mechanicsburg PA 17055 A judgment in the amount of $540,186.44 plus per diem interest of $135.43092 from October 24, 2007 until paid in full, including post judgment per contract, plus costs of suit has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION TO STRIKE OR OPEN JUDGMENT THEREBY SEEKING RELIEF FROM THE JUDGMENT STATING ALL GROUNDS FOR RELIEF IN A SINGLE PETITION AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of the Cumberland County Bar Association 32 South Bedford Street Carlisle PA 17013 800-990-9108 717-249-3166 Dated: October 29, 2007 By: 7 . Goodman, Esquire As ttorney for Defendants Aldwyn Lane, 20-536-ARO Villanova PA 19085-1420 Phone: 610-526-6313 I.D. No. 62689 0 •X V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOVEREIGN BANK CIVIL ACTION Plaintiff VS. No. MARK-CRETE, INC. . and F. MARK ESHELMAN, JR., Defendants Confession of Jud ment NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: F. Mark Eshelman, Jr. 71 Texaco Road Mechanicsburg PA 17055 A judgment in the amount of $540,186.44 plus per diem interest of $135.43092 from October 24, 2007 until paid in full, including post judgment per contract, plus costs of suit has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION TO STRIKE OR OPEN JUDGMENT THEREBY SEEKING RELIEF FROM THE JUDGMENT STATING ALL GROUNDS FOR RELIEF IN A SINGLE PETITION AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of the Cumberland County Bar Association 32 South Bedford Street Carlisle PA 17013 -? 800-990-9108 717-249-3166 Dated: October 29, 2007 By: i)odman, Esquire for Defendants 2 Aldwyn Lane Villanova PA 19085-1420 Phone: 610-526-6313 I.D. No. 62689 4 w V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOVEREIGN BANK CIVIL ACTION Plaintiff VS. No. MARK-CRETE, INC. and F. MARK ESHELMAN, JR., Defendants Confession of Judgment NOTICE OF FILING JUDGMENT ( ) Notice is hereby given that a judgment in the above-captioned matter has been entered against Mark-Crete, Inc. and F. Mark Eshelman, Jr. in the amount of $540,186.44 plus per diem interest of $135.43092 from October 24, 2007 until paid in full, including post judgment per contract, plus costs of suit on the day of 1 t- 1,V , 2007. ( ) A copy of all documents filed with the Prothonotary in support of the within Judgment is/are enclosed. Prothonotary Civil Div' By: If you have any questions concerning the above case, please contact the following party: Jeffrey L. Goodman, Esquire (I.D. No. 62689) Attorney for the Plaintiff 20-536-ARO 2 Aldwyn Lane Villanova PA 19085-1420 Telephone: 610-526-6313 (This Notice is given in accordance with Pa.R.C.P. 236.) Notice sent: Mark-Crete, Inc. c/o F. Mark Eshelman, Jr., President 71 Texaco Road Mechanicsburg PA 17055 F. Mark Eshelman, Jr. 71 Texaco Road Mechanicsburg PA 17055 4 of v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOVEREIGN BANK CIVIL ACTION Plaintiff VS. No. MARK-CRETE, INC. and F. MARK ESHELMAN, JR., Defendants Confession of Judgment SECTION 2737.1 NOTICE Pursuant to 42 Pa. C. S. § 273 attached hereto are written instructions regarding the procedure to follow to strike the confessed judgment entered against you. Please be further advised that if you have been incorrectly identified and had a confession of judgment entered against you, under 42 Pa. C.S. § 2737.1 you are entitled to costs and reasonable attorney's fees as determined by the Dated: October 29, 2007 By: . Goodman, Esquire ey for Defendants 7.0-536-A4RO 2 Aldwyn Lane Villanova PA 19085-1420 Phone: 610-526-6313 I.D. No. 62689 M as M Pa. R.C.P No. 2959 PURDON'S PENNSYLVANIA STATUTES AND CONSOLIDATED STATUTES ANNOTATED PURDON'S PENNSYLVANIA CONSOLIDATED STATUTES ANNOTATED PENNSYLVANIA RULES OF CIVIL PROCEDURE CONFESSION OF JUDGMENT FOR MONEY. Current with amendments received through December 1, 2003. Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure (a) (1) Relief from a judgment by confession shall be sought by petition. Except as provided by subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. v t " 0 (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and all other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. M The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. ? o v C') ?v I r 'C H M d -C SHERIFF'S RETURN - REGULAR CASE NO: 2007-06889 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SOVEREIGN BANK VS MARK-CRETE INC ET AL TIMOTHY BLACK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within CONFESSION OF JUDGMENT MARK CRETE INC the DEFENDANT at 1000:00 HOURS, on the 12th day of December , 2007 at 71 TEXACO ROAD MECHANICSBURG, PA 17055 by handing to JEAN MOYER, ADULT IN CHARGE a true and attested copy of CONFESSION OF JUDGMENT COMPLAINT FOR CONFESSION OF JUDGMENT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 8.64 .00 10.00 .00 36.64 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 12/13/2007 SOVEREIGN BANK By: ox I -I Deputy Sheriff was served upon of A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2007-06889 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SOVEREIGN BANK VS MARK-CRETE INC ET AL TIMOTHY BLACK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within CONFESSION OF JUDGMENT was served upon ESHELMAN F MARK the DEFENDANT at 1000:00 HOURS, on the 13th day of December-, 2007 at 71 TEXACO ROAD MECHANICSBURG, PA 17055 by handing to JEAN MOYER, ADULT IN CHARGE a true and attested copy of CONFESSION OF JUDGMENT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 4-V1,3010 -7 So Answers: 6.00 .00 r 1.y ..?. . 00 10.00 R. Thomas Kline .00 16.00 12/13/2007 SOVEREIGN BANK Sworn and Subscibed to before me this of By: day Deputy Sheriff A. D.