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HomeMy WebLinkAbout04-1436House of Bull Discl & Note SCN/PLCB settlements JAN B. CASTNER & NICHOLAS E. DUNPHY, JR. Plaintiffs VS. J.C. DUNPHY'S PUB, INC., a Permsylvania Business Corporation, & MELISSA DISSINGER, Individually Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA CWIL ACTION - LAW To: J.C. DUNPHY'S PUB, INC., a Pennsylvania Business Corporation To: MELISSA DISSINGER You are hereby notified that on the J day of d~4M,~ g , 2004 judgment by confession was entered againstyouin' the stun of $125,000.00, with 5% interest, in the above-captioned case. Date: 9//,5 '~ ,2004 ~ t~,- ~~ Prothonotary 67 YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 I hereby certify that the following is the address of the Defendants stated in t~ ce~ca~m of residence: ~- J.C. Dunphy's Pub, Inc. Melissa Dissinger 433 N 21st Street 6504 Blue Ridge Avenue Camp Hill, PA 17011 _..._.~ Harrisburg, PA 17112 Attorney for Plaintiff(s) JAN B. CASTNER & NICHOLAS E. DUNPHY, JR. Plaintiffs VS. J.C. DUNPHY'S PUB, INC., a Pennsylvania: Business Corporation, & MELISSA DISSINGER, Individually Defendants 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANLA NO. CIVIL ACTION - LAW Para: J.C. DUNPHY'S PUNB, INC., a Pennsylvania Business Corporation Para: MELISSA DISSINGER Por este medio sea avisado queen el dia de de 2004, un fallo pot admission rue registrado contra Ustedes por la canfidad de $125,000.00 del caso antes escrito. Fecha: el dia de de 2004. Protonotado LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO T1ENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CLTyA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 Por este medio certifico que Io siguiente es la direccion de los demandados dichos en el certificado de residencia: J.C. Dunphy's Pub, Inc. Melissa Dissinger 433 N 2lst Street 6504 Blue Ridge Avenue Camp Hill, PA 17011 Harrisburg, PA 17112 Abogado(a) de Demandante(s) House of Bu)) Discl & Note SCN/PLCB settlements DISCLOSURE FOR CONFESSION OF JUDGMENT : ::t' ~i~ipal [ ......... Lo~Date [,z US $125,000.00 [ March 31 2004 Borrower: Borrower: Affiant: Melissa Dissinger 6504 Blue Ridge Avenue Harrisburg, PA 17112-2703 J.C. Dunphy's Pub, Inc. 433 N. 21stStreet Camp Hill, PA 17011 Melissa Dissinger Individually & for J.C. Dunphy's Pub, Inc. 6504 Blue Ridge Avenue Harrisburg, PA 17112-2703 Lender: Jan B. Castner 6330 Chesterfield Lane Mechanicsburg, PA 17050-2820 Lender: Nicholas E. Dunphy, Jr. 517 Reno Street New Cumberland, PA 17070-1947 DISCLOSURE FOR CONFESSION OF JUDGMENT We are executing on this 31st day of March 2004, a note for $125,000.00. A. We understand that the note contains a confession of judgment that will permit Lender to enter judgment against us in court, without advance notice to us and without offering to us an opportunity to defend against the entry of judgment. In executing the note, being fully aware of our rights to advance notice and to a hearing to contest the validity of any judgment or other claims that Lender may assert against us under the note, we are knowingly, intelligently and voluntarily waiving these rights, including any right to advance notice of the entry of judgment, and we expressly agree and consent to Lender's entering judgmgnt against us by confession as provided for in the confession of judgment provision. Initials: ~ B. We further understand that in addition to giving Lender the right to enter judgment against us 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 our property, in full or partial payment of the judgment. In executing the note, being fully aware of our rights to advance notice and a hearing after judgment is entered and before execution on the judgment, we are knowingly, intelligently and voluntarily waiving these rights, and we expressly agree and consen,t to Lender's immediately executing on the judgment, in any manner permitted by applicable state,and federal Initials: ,P~ff]~ law, without giving us any advance notice. C. After having read and deterrff~ned which of the following statements are applicable, and by placing our initials next to each statement that applies, we represent that:  1. We ware represented by our 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 attention. D. We certify that our annual income exceeds $10,000; that the blanks in this disclosure were filled in when we initialed and signed it; and that we received a copy at the time of signing. E. This Note is given in connection with a commercial transaction and not in connection with a consumer credit transaction. 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. Affiant: Individually & for J.C. Dunphy's Pub, Inc. House of Bu}} Disc} & Note SCN/PLCB settlements PROMISSORY NOTE Loan Date 1: US $125,000.00 March 31 2004 Borrower: Melissa Dissinger 6504 Blue Ridge Avenue Harrisburg, PA 17112-2703 Maturity I Loan No.. April 1 '2005 Lender: Jan B. Castner 6330 Chesterfield Lane Mechanicsburg, PA 17050-2820 Borrower: J.C. Dunphy's Pub, Inc. 433 N. 21~tStreet Camp Hill, PA 170l 1 Lender: Nicholas E. Dunphy, Jr. 517 Reno Street New Cumberland, PA 17070-1947 Principal Amount: $125,000.00 Initial Rate: 5% Date of Note: March 31, 2004 PROMISE TO PAY, Melissa Dissinger & J.C, Dunphy's Pub, Inc., by its duly authorized officers, (jointly hereafter as "Borrower") promise to pay to Jan B. Castner and Nicholas E. Dunphy, Jr. ("Lender") in lawful money of the United States of America, the principal amount of $125,000.00, together with interest on the unpaid principal balance from April 1, 2004 until paid in full. PAYMENT. This loan is payable over 12 months. Borrower will pay this loan with interest computed on the unpaid principal balance at the rate of 5% per annum in 11 equal monthly installments of $5,000.00 with the first payment due and payable on April 1, 2004 mad one final balloon payment for the entire balance on April 1, 2005 in the approximate amount of $75,000.96. All payments shall be due on the first day of each month until paid in full. Borrower's final balloon payment will be due on April 1, 2005, 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 accrued unpaid interest, then to principal, and any remaining amount to any unpaid collection costs and late charges. 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, FIXED INTEREST RATE. The interest rate on this Note is fixed at the rate of 5% per annum. LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 10% of the regularly scheduled payment. 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 to the maximum rate permitted by applicable law. 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. DEFAULT. Each of the following shall constitute an event of default ("Event of Default") under this PAYMENT DEFAULT. Borrower fails to make any payment when due. OTHER DEFAULTS. Borrower or any Guarantor 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 Guarantor defaults under any loan, extension of credit, security agreement, purchase of 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, thc 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 of 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. CHANGE IN OWNERSHIP. Any change in ownership of the cormnon stock of J.C. Dunphy's Pub, Inc. now issued to Meltssa Dissinger. 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. LENDER'S RIGHTS. Upon default, Lender may, after giving such notice as required by applicable laxv, declare the entire unpaid principal balance on this note and all accrued unpaid interest immediately due, without notice, and then Borrower will pay that amount. ATTORNEY'S 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 reader applicable law, Lender's reasonable attorney's fees and Lender's legal expenses, whether or not there is a lawsuit, including attorney's fees, expenses for bankruptcy proceedings (including any efforts to modify or vacate any automatic stay or injunction), appeals and any anticipated post-judgment collection services. If not prohibited by applicable law, Borrower will also pay any court costs, in addition to all other sums provided by law. WAWER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR CLAIM OF ANY NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECLFrED IN CONNECTION WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOW1NG AND VOLUNTARY. 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 and is related to a commercial transaction. This transaction is not in connection with a consumer credit transaction. CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Pennsylvania. COLLATERAL. Borrower acknowledges that this Note is secured by the terms and conditions of a Stock Purchase Agreement dated February 2, 2004, all the terms and conditions of which are hereby incorporated and made a part of this Note. SUCCESSOR INTERESTS. The terms of this Note shall be bindhng 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 with 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 a 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 uny other provisions of this Note. CONFESSION OF JUDGMENT: BORROWER HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD, TO APPEAR FOR BORROWER AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINST BORROWER IN FAVOR OF LENDER OR ANY HOLDER HEREOF FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST AND ALL OTHER AMOUNTS DUE HEREUNDER, TOGETHER V~ITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF THE GREATER OF 10% OF SUCH PRINCIPAL AND INTEREST OR $1~000.00 ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO, THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT THE DEFAULT RATE. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD FROM TIME TO TIME AS OFTEN AS LENDER SHALL ELECT UNTIL SUCH TIME AS LENDER SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS. NOTWITHSTANDING THE ATTORNEY'S COMMISSION PROVIDED FOR IN THE PRECEDING PARAGR.APH (WHICH IS INCLUDED IN THE WARRANT FOR PURPOSES OF ESTABLISHING A SUM CERTAIN), THE AMOUNT OF ATTORNEY'S FEES THAT LENDER MAY RECOVER FROM THE BORROWER SHALL NOT EXCEED THE ACTUAL ATTORNEY'S FEES INCURRED BY LENDER. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THIS 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. Witness/Attest: BORROWER: J.C. Dunphy's Pub, Inc. Nay 1/2004 ~o~ J/200~ Dee 1/2004 Dec 3~/2004 ?eh 1/2005 5000.00 4554.29 105971.04 7 5000.00 426,74 102416.75 1971.04 15.90 8 5000.00 407'68 4573'26 2416.75 15.28 5 5000,00 88639,72 3251.17 14.03 10 5000.00 369.33 Sub-TotaI 3639.72 13.41 11 5000.00 350.04 4630.67 5000.00 330.66 4649.56 84009.05 3639.72 12.78 Tot~rest Paid to Da~ce 54~uu'56 ~ 1361.24 10.88 q sted by: inished: rte Range: me: :nCipal: ~tgage Amortization A~MIN Wednesday, March A~r 1/2004 ~ 31, 2004 aP D&ssinger ~ K© Apr 1/20n~ 10:22:14 AM JC Dunph,,,~Lcastner/DUnph~~ 125000,0~ ~ub, /nc. ~ 5.00 SO00.O0 5.1eh