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HomeMy WebLinkAbout09-6309 HENRY & BEAVER LLP By: John H. Whitmoyer I . D. #07038 937 Willow Street j P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 METRO BANK f/k/a COMMERCE IN THE COURT OF COMMON PLEAS BANK/HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANI, Plaintiff CIVIL ACTION - LAW vs. No. 0-t vi -Tirpt JAY H. BRANDT and KAREN J. BRANDT, husband and wife, : Defendants j CONFESSION OF JUDGMENT Pursuant to the authority contained in the Warrant of Attorney, a copy of which is attached to the Complaint filed in this action, I appear for the Defendants and confess judioment in favor of the Plaintiff and against Defendants as follows: Principal Sum Due - $ 770,000.00 Interest to 09/04/09 6,200.93 Attorneys' commission 38.810.05 Total $ 815,010.98 Plus all future accruing interest until paid in full, a reasonable attorneys' commission, toggt?er with costs of suit and all other amounts, fees, and costs incidental to execution and levy. HENRY & BEAVER LP By:, 6hn H. Whitmoyer .D.#07038 Attorney for Defen nts Protho I HENRY & BEAVER LLP By: John H. Whitmoyer I.D. #07038 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 j METRO BANK f/k/a COMMERCE IN THE COURT OF COMMON PLEAS BANK/HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. No. 0- G301 LWV • I JAY H. BRANDT and KAREN J. BRANDT, husband and wife, Defendants f COMPLAINT CONFESSION OF JUDGMENT Plaintiff files this Complaint pursuant to Pa. R.C.P. No. 2951(b) for judgment by confession and avers the following: 1. The Plaintiff is Metro Bank f/k/a Commerce Bank/Harrisburg, N.A., which is headquartered at 3801 Paxton Street, Harrisburg, PA 17111. 2. Defendants are Jay H. Brandt and Karen J. Brandt, husband and wife and advilt individuals. Defendant Jay H. Brandt resides at 44 Brandt Lane, Upper Mifflin Township, Newville, Cumberland County, Pennsylvania 17241. Defendant Karen J. Brandt resides a? 46 Mt. Rock Road, Newville, PA 17241. 3. Defendants are the shareholders and owners of a Pennsylvania corporation known as J.H. Brandt and Associates, Inc. (the "Borrower"). III 4. On April 29, 2004, Plaintiff loaned to Borrower the sum of Seven Hundred Fifty Thousand Dollars ($750,000.00) which was evidenced by a Promissory Note. A true and correct copy of said Promissory Note duly executed by Defendants is attached hereto and made a part hereof as Exhibit "A". 5. On April 29, 2004, Defendants also executed a Guaranty and Suretyship Agrd?ment (the "Guaranty") guaranteeing for the benefit of Plaintiff Borrower's $750,000.00 loan. A't?ue and correct copy of said Guaranty and Suretyship Agreement duly executed by Defendants is attached hereto and made a part hereof as Exhibit "B". 6. On October 24, 2008, Borrower entered into a Change in Terms Agreement (t4 "Agreement") with Plaintiff increasing the amount of the obligation from $750,000.00 to Sven Hundred Seventy Thousand Dollars ($770,000.00). A true and correct copy of the Change in Terms Agreement duly executed by Defendant Jay H. Brandt as President of Borrower is attached hereto and made a part hereof as Exhibit "C". 7. The Guaranty has not been assigned. 8. Judgment has not been entered on the Guaranty in any jurisdiction. 9. On August 14, 2009, Borrower filed a Petition for Relief under the U.S. Bankru tcy Code in the U.S. Bankruptcy Court for the Middle District of Pennsylvania, Harrisburg, which was docketed at No. 1:09-06295. , 10. Borrower is currently liable to Plaintiff as follows: Principal Sum Due - $ 770,000.00 Interest to 09/04/09 6.200.93 Total $ 776,200.93 Plus all future accruing interest until paid in full, a reasonable attorneys' commission, together with costs of suit and all other amounts, fees, and costs incidental to execution and levy. 11. As a consequence of the foregoing and pursuant to the warrant of attorney is he - 2 - Guaranty, Defendants are liable to Plaintiff as follows: Principal Sum Due - $ 770,000.00 Interest to 09/04/09 6,200.93 Attorneys' commission 38.810.05 Total $ 815,010.98 Plus all future accruing interest until paid in full, a reasonable attorneys' commission, togelther with costs of suit and all other amounts, fees, and costs incidental to execution and levy. 12. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. , WHEREFORE, Plaintiff demands judgment in the sum of: , Principal Sum Due - $ 770,000.00 , Interest to 09104/09 6,200.93 Attorneys' commission 38,810.05 Total $ 815,010.98 HENRY & BEAVER LLP By: hn H. hitmoyer D. #07038 937 Willow Street P.O. Box 1140 Lebanon, PA 17642 (717) 274-3644 Attorney for Plaintiff - 3 - a AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA ss. ' COUNTY OF DAUPHIN Amy M. Custer, Asset Recovery Supervisor, of Metro Bank f/k/a Commerce Bank/Harrisburg, N.A., being duly sworn according to law, deposes and says that she has; authority to sign this Affidavit on behalf of Metro Bank f/k/a Commerce Bank/Harrisburg, IN[ A. and that the facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information, and belief; and that the copies of the Promissory Note and Guarpoty and Suretyship Agreement, Exhibits "A" and "B°, respectively, attached to the Complaint, Are true and correct copies of the originals which are held in the files of the Plaintiff and which (were executed and delivered by the Defendants to Plaintiff. METRO BANK f/k/a COMMERCE BANK/HARRISBURG, N.A. By: Amy M. u ter Asset Rec ery Supervisor Sworn and subscrib d to before me this /,S"' day of , COMMONWEALTH OF PENNSYLVANIA 2009. Notwilil SW Tammy D. Clerk, Notary Public swatera Twp., Dauphin county M commission Expim Jan. 15, 2013 sm r, 1041`1111kylvanis Ass W"on of Notaries ),? m Not ry Public PROMISSORY NOTE $750,000.00 April 29, 2064 Carlisle, Pennsylv,?.a FOR VALUE RECEIVED, and intending to be legally bound, J.H. BRAND & ASSOCIATES, INC.("Borrower") having a principal business office at 657 Forge Road, Ca lkle, Pennsylvania 17013, promises to pay to or to the order of COMMERCE N.A. ('Bank") the principal sum of Seven Hundred Fifty Thousand Dollars ($750,000.00), tog with interest, in arrears, on the unpaid principal amount outstanding at any time at a rate per ar, which shall fluctuate at the Prime Rate of interest, plus one and one-quarter percent (1.25%). (" F Rate" shall mean the New York Prime Rate published in the Money Rates Section of the Wall Street Journal, Eastern Edition, from time to time. The Prime Rate is an index, and interest rates on bans of Bank may be established below, at or above such index. The Prime Rate is not the rate charged by the Bank to any particular borrower or class of borrower, and is not necessarily the lowest date charged by Bank.) The Prime Rate payable under this Note will change each time the Prime'*ate published in the Wall Street Journal is changed, with each such change in the interest rate 1 ?ing effective as of the opening of business on the day on which such change in the Prime Rdt? is published. Interest shall be calculated on the basis of a 360-day year for the actual number of flays elapsed in each calendar year by multiplying the actual number of days the debt is outstandin4 in i each calendar year by the applicable rate or rates of interest, and dividing the product thereof by ? 60, !I to obtain a daily interest factor or factors. Interest only will be payable on the first day of each calendar month on the principal amount outstanding under this Note at any time. Borrower will pay the principal amount outstanding under this Note at any time upon demand by Bank, together' with any accrued and unpaid interest thereon and any and all other sums due or payable under otr in i connection with this Note or any of the other Loan Documents (as hereinafter defined). If not sooner 7 paid, on May 1, 2005, the entire outstanding balance of the principal amount, and all accrued ;and unpaid interest, and any and all other sums due or payable under or in connection with this Note or any of the other Loan Documents (as hereinafter defined), will be due and payable in full If any payment is not paid under the terms of this Note, or under the terms of any of the 'olther Loan Documents (as hereinafter defined), within ten (10) days after such payment is due, Borrdwer will pay Bank a late charge in an amount equal to five percent (5%) of the amount of the ovt> due payment. All payments will be made without notice or demand, or setoff, counterclaim or deductioh of any nature. No interest rate provided for in this Note will at any time exceed the highest Irate permitted by applicable state or federal law, regulation, rule, order or other applicable authority. }Any interest paid in excess of the permitted rate will be refunded to Borrower. Any refund will be Made i by applying the excessive amount of interest paid against any sums outstanding under this Note or the other Loan Documents (as hereinafter defined) in such amount and order as Bank may deteniline. If the excessive amount of interest paid exceeds the sums outstanding, the portion exceedin' the sums outstanding shall be refunded in cash by Bank. Any crediting or refund shall not cure or wive any default by Borrower under this Note. Borrower agrees, however, that in determining whethgr or not any interest payable under this Note exceeds the highest rate permitted by law, any non-pririgipal payment (including, without limitation, loan commitment or origination or similar fees, if any, 2 prepayment fees, if any, and late charges) shall be deemed, to the extent permitted by law, to be an expense, fee, premium or penalty rather than interest. The application or repayment of any excess interest as provided herein will be Borrower's sole remedy with respect to the charging or payment of excess interest, and Borrower hereby waives and releases Bank from any and all other cl4ms, demands, proceedings, suits or actions of any nature whatsoever, and any and all losses, darn4ges, costs, expenses, charges or liabilities of any nature whatsoever, arising from or in any way in connection with any charging or payment of excess interest. Defaults: Borrower shall be in default hereunder (1) for failure to pay when due any amount payable under this Note, or under the revolving line of credit agreement executed and delivered by Borrower simultaneously with this Note ("Loan Agreement"), or under the security agreement ("SeC?'rity Agreement") given to Bank simultaneously with this Note as security for Borrower's obligations under this Note and the Loan Agreement, or under any other agreement or document which otheir?ise evidences or secures Borrower's indebtedness and obligations to Bank under or in connection; j' vith this Note (collectively, including the Note, Loan Agreement, Security Agreement and all such 'tither agreements and documents, the "Loan Documents"), all of the provisions all of which; are incorporated herein by reference and made a part hereof as is set forth in full; or (2) subject td the right to notice of and to cure certain defaults as provided in the Loan Agreement, for fail* to 1 observe or perform any provision of any of the Loan Documents. Rights and Remedies of the Bank. Whenever the Borrower shall be in default hereunder, uriless the Bank elects otherwise, the entire unpaid amount of the indebtedness evidenced by this Note, shall III 3 become immediately due and payable without notice to or demand on Borrower, and without setoff, counterclaim or deduction of any nature, with interest (after such default and acceleration andl until Borrower's indebtedness to the Bank is paid in full, including the period following entry of; any judgment) at a rate which is four percent (4%) per annum in excess of the applicable interest rate hereinabove specified, and the Bank will have the immediate right to enforce or realize on any collateral security granted for the indebtedness evidenced by this Note in any manner or order W.ich the Bank deems expedient and without regard to any equitable principles of marshalling or othe4ise. In addition to any rights granted hereunder or in any of the other Loan Documents, the Bank', Shall have all of the rights and remedies available at law or in equity, all of which shall be cumulati4e in nature, and which may be exercised individually or in any combination, and successively, or concurrently, at any time or times and from time to time. Prepayment: Borrower shall have the right to prepay, at any time or from time to time, without penalty, all or any portion of the principal sum hereof. Partial prepayment will be applied first td any accrued and unpaid late charges and to any sum which is past due under or in connection witiv this Note or any of the other Loan Documents, in such amounts, manner and order as Bank 7nay determine in its sole discretion, and only then in payment of the unpaid principal balance. Any prepayment will not be a substitute for any regularly scheduled payment, each of which will be r(iade as and when due as provided in this Note or any of the other Loan Documents. Waivers by Borrower: Borrower waives presentment for payment, demand and notice of dell"and, notice of nonpayment or dishonor, protest and notice of protest, and any and all other no&i s in 4 connection with the delivery, acceptance, performance, default or enforcement of the payment of this Note, and Borrower agrees that the liability of Borrower shall be unconditional, without regard tQ the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by the Bank. Borrower further w4ives and releases all errors, defects and imperfections in any proceedings instituted by the Balk in exercising its rights and remedies against Borrower, as well as all benefits that might acci ?e to Borrower by virtue of any present or future laws exempting the collateral security fof; the indebtedness evidenced by this Note, or any other property, real or personal, including the procOeds thereof, of the Borrower from attachment, levy or sale under execution or providing for any s?4y of i execution, exemption from civil process or extension of time for payment; and Borrower agreesi that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, or any:writ of execution issued thereon, may be sold upon any such writ; in whole or in part, in any order de4ired by the Bank. Waivers by the Bank: The Bank shall not be deemed, by any action or inaction, to have waived any of its rights or remedies hereunder, unless such waiver is in writing and signed by the Bank, and ;then only to the extent specifically set forth in writing. If the Bank shall have waived any right or renpedy hereunder, such waiver shall not be deemed to be a waiver upon a later occurrence or recurrence of the event originally giving rise to such waiver. Miscellaneous: All payments required hereunder shall be made to or to the order of Bank in' the lawful money of the United States of America. Any and all times for any payment or observarloe or 5 performance of any obligation of Borrower are of the essence of this Agreement. Borrower is referred to in the singular, even though there is more than one. The captions contained in this Note are for convenience of reference only and are not an aid in interpreting and do not limit or other,l rise modify or affect the actual provisions of this Note. All issues arising hereunder shall be goveme? by the laws of the Commonwealth of Pennsylvania, without giving effect to the principles theteof relating to conflict of laws, if any. Borrower hereby consents to the exclusive jurisdiction of, the Courts of Common Pleas of Cumberland County, Pennsylvania, and the United States District Court for the Middle District of Pennsylvania, in any and all actions or proceedings ar`4ng hereunder or pursuant hereto, and irrevocably agrees to service of process by certified mail, return receipt requested, to the address for Borrower set forth above or to such other address as Borrower may direct by notice to Bank. BORROWER AND BANK EACH HEREBY WAIVES *E RIGHT TO TRIAL BY JURY OF ANY MATTERS OR CONTROVERSIES ARISING HEREUNDER. Neither this Note or any of the other Loan Documents, nor any right, intere* or obligation under this Note or any of the other Loan Documents may be assigned without the exliriess, written consent of Bank, which may be granted, withheld or conditioned by Bank in Bank's sole ;and absolute discretion. This Note shall be binding upon the Borrower and the respective heirs, personal representatives and permitted successors and assigns of the Borrower, and shall inure to the benefit of the Bank and its successors and assigns. CONFESSION OF JUDGMENT: THE BORROWER HEREBY VOLUNTARILY, KNOWINGLY AND UNDERSTANDINGLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN '1< E ....III Tl COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR THE BORROWER, AND WITH OR WITHOUT COMPLAINT FILED, AS; OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST THE BORROWER POR EITHER (1) THE ENTIRE PRINCIPAL SUM OF THIS NOTE, OR (2) THE ENTRE UNPAID PRINCIPAL BALANCE OF THIS NOTE AND THE ACCRUED TNTER*ST THEREON AND LATE CHARGES, AS ELECTED BY BANK, AND IN EITHER CkSE TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF WE PERCENT (5%) FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN VIVE f THOUSAND DOLLARS ($5,000.00); AND FOR SO DOING, THIS NOTE OR A OPY HEREOF VERIFIED BY AFFIDAVIT OR SWORN STATEMENT SHALL' :BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT AGAINST THE BORROWER SHALL NOT BE EXHAUSTED BY 4NY EXERCISE THEREOF, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE HEREUNDER. IN WITNESS WHEREOF, the Borrower has executed as an instrument under seal (witfout the necessity of affixing any corporate seal hereto) this Note as of the day and year first wr#tten above. ATTEST: J.: ' By: -62r rv, dz=a? By ran' Kar J. Brandt, Secretary 7 GUARANTY AND SURETYSHIP AGREEMENT 1. Identification. This Guaranty and Suretyship Agreement is made by the undersigped (hereinafter called the "Guarantor"), in favor of COMMERCE BANK/HARRISBURG, N.A., a national banking association (hereinafter called "Lender"), to induce Lender into loaning ). I. BRANDT & ASSOCIATES, INC. ("Debtor") the principal sum of Seven Hundred Fifty Thous'ah d Dollars ($750,000.00) (the "Loan"). The Loan is evidenced by a Note of Debtor payable to Lender, dated of even date herewith (the "Note") and further evidenced and secured by a Line of Credit Agreement and by certain other related loan documents, all dated of even date herewith (collective ly called the "Loan Documents"). 2. Guaranty. 2.1 Guarantor hereby jointly and severally (if more than one), unconditionally and irrevocably guarantees and becomes surety for the prompt payment in full, performance '*d discharge of any and all now existing or hereafter arising indebtedness or obligations of the Debtgt to Lender of every kind or nature, however arising, including without limitation payment of principal, interest, late charges, loan administration and other charges, assessments, penalties and Oes comprising or relating to the Loan. The foregoing Guaranty shall also extend to any obligations which the Debtor may incur to Lender under any agreement or by reason of any other finangial accommodation between Lender and the Debtor made after the date hereof, whether or not prese*ly contemplated. 2.2 Guarantor unconditionally guarantees the prompt, full and faithful performance,?nd discharge by the Debtor of each and every term, condition, agreement, representation, warranty'and provision on the part of the Debtor contained in the Note or any of the Loan Documents or m any modification, amendment or substitution thereof or in any document or instrument evidencipi a financial accommodation between Lender and Debtor. 2.3 Guarantor shall, on demand, reimburse Lender for all expenses, collection charges, court and other costs and attorneys' fees incurred by Lender in endeavoring to collect or enforce'any of Lender's rights and remedies against Debtor, including all attorneys' fees, costs and expen?es incurred by Lender as the result of any case or proceeding filed by or against any such person un4er any chapter of the United States Bankruptcy Code. All of the guaranty obligations listed; in subparagraphs 2.1, 2.2 and 2.3 are referred to herein as the "Obligations." 2.4 Guarantor shall pay all of the foregoing amounts and perform all of the foregoing terms, covenants and conditions notwithstanding that any part or all of the Note or the Loan Documents or any financial accommodation shall be void or voidable as against Debtor or any; of Debtor's creditors, including a trustee in bankruptcy of Debtor, by reason of any fact ; or circumstances, including without limitations failure by any person to file any document or to tike any other action to make any of the Loan Documents or any other financial accommodatt?on enforceable in accordance with their respective terms. Guarantor also agrees that Guarantor's i 1 w.. Obligations hereunder shall not be relieved in the event Lender fails to perfect or protect or otherwise impairs any collateral, whether as a result of Lender's negligence or otherwise. 2.5 The obligations, covenants, agreements, and duties of the Guarantor under 'this Guaranty, shall in no way be affected or impaired by the release of the Debtor from the performance or observance of any of the agreements, covenants, terms or conditions contained in the Note andVor Loan Documents; by operation of law or otherwise. 3. Waivers of Guarantor. (a) Guarantor does hereby waive notice of acceptance hereof, notice of the extensiar' of credit from time to time given by Lender to Debtor and the creation, existence or acquisition of 4ny Obligations hereby guaranteed, notice of the amount of the Obligations of Debtor to Lender frbm time to time, notice of adverse change in the Debtor's financial condition or of any other fact wh?ch might increase Guarantor's risk, notice of presentment for payment, demand and protest, notice of default and all other notices and demands to which Guarantor might otherwise be entitled. (b) Guarantor further waives the right to a jury trial in any action hereunder and any riots established by statute or otherwise to require Lender to institute suit against Debtor or to exhaust; its rights and remedies first against Debtor, Guarantor being bound to the payment of each and :all Obligations of Debtor to Lender as fully as if such Obligations were directly owing to Lender by Guarantor. (c) Guarantor further waives any defense arising by reason of any disability or other defense of Debtor or by reason of the cessation from any cause whatsoever of the liability of Debtor and any defense that other indemnity, guaranty, or security was to be obtained. (d) Guarantor shall have no right of subrogation, reimbursement or indemnity whatso6?'er and no right of recourse to or with respect to any asset or property of Debtor or to any collateral for the Obligations of Debtor. Nothing shall discharge or satisfy the liability of Guarantor hereunder except the full performance and payment of the Obligations of Debtor with interest. 4. Guarantor's Property as Security for Guaranty . Lender shall ha re a lien upon and,'or rig h of set-off to any and all credits and any and all other property of Guarantor, now or at any tifne whatsoever, with or in the possession of Lender or anyone holding for Lender, as security for any, 4nd all obligations of Guarantor to Lender, or to any company which may now or at any time be; its subsidiary, no matter how or when arising and whether under this or any other instrument, or agreement or otherwise. 5. Consent to Lender's Actions. Guarantor consents and agrees that, without notice to orby Guarantor, and without affecting or impairing the obligations of Guarantor hereunder, Lender i ay compromise or settle, extend the period of duration or the time for payment or discharge: or performance of, or may refuse to enforce or may release any party to any and all of the Obligations, or may grant other indulgences to Debtor in respect thereof, or may amend or modify in any ma4er 2 any documents or agreements relating to such Obligations (other than this Continuing Guaranty), or may release, surrender, exchange, modify, impair, or extend the period of duration or time for performance, discharge or payment, of any and all deposits and other property securing the Obligations or on which Lender at any time may have a lien, or may refuse to enforce its rights,! or may make any compromise or settlement or agreement therefor, in respect of any and all of such deposits and property, or with any party to the Obligations, or with any other person, firrri !or corporation whatsoever, or may release or substitute any one or more of the endorsers or guarantors of the Obligations , whether parties to this instrument or not, or may exchange, enforce, waived or release any security for any guaranty of the Obligations. Guarantor consents and agrees that Lender shall be under no obligation to marshal any asset in favor of Guarantor, or any of them, or against or in payment of any or all of the Obligations. 6. Reinstatement of Obligations. Guarantor further agrees that, to the extent Debtor makes a payment or payments to Lender, which payment or payments or any part thereof are subseque4ly invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid t? a trustee, receiver or any other party under any insolvency act (including the United States Bankruptcy Code), state or federal law, common law or equitable cause, then to the extent of such paymeritl or repayment, the Obligation or part thereof intended to be satisfied shall be revived as to Guarantor aInd continued in full force and effect as if said payment had not been made. 7. Subordination of Guarantor's Claims. Any and all present and future debts and obligation0f Debtor to Guarantor are hereby waived and postponed in favor of, and subordinated to, the '4di payment of the Obligations by Debtor to Lender, and as security for this Guaranty, Guarantor hereby assigns to Lender all claims of any nature by which they, or any of them, may now or hereafter have against Debtor. 8. Irrevocable Guaranty. Guarantor agrees that the liability of Guarantor on this Guaranty shjall be irrevocable and shall be immediate and not contingent upon the exercise or enforcement Eby Lender of whatever remedies it may have against Debtor or others, or the enforcement of any lienlor realization upon any security Lender may at any time possess. In the event of the death of any Guarantor, this Guaranty shall continue in effect against his estate. Any attempted revocation shall be ineffective except if Lender shall have granted written consent thereto; Lender shall be under ?o obligation to grant such consent. Any such consent which lender might grant with respect to one! or more Guarantors would not release any other Guarantor or diminish his joint and several obligation. 9. Covenants and Warranties of Guarantor. Each Guarantor represents, warrants and covents to Lender as an inducement to Lender to grant credit to Debtor that, as of the date of this Guaran , the fair saleable value of Guarantor's assets exceed its/his liabilities; Guarantor is meeting current liabilities as they mature; the financial statements of Guarantor furnished Lender are true and cor'r ct and include in the footnotes thereto all contingent liabilities of Guarantor; since the date of s4id financial statements, there has been no material adverse change in the financial condition !of Guarantor; there are not now pending any material court or administrative proceedings ;or undischarged judgments against Guarantor, and no federal or state liens have been filed or threatened against Guarantor, nor is Guarantor in default or claimed default under any agreement for borrowed ,3. ?I money; Guarantor shall immediately give Lender written notice of any material adverse change; in its/his financial condition, including but not limited to litigation commended, tax liens filed, defo''lts claimed under his indebtedness for borrowed money or bankruptcy proceedings commenced against Guarantor, by Guarantor or any third party; Guarantor shall, at such reasonable times as Lender requests, furnish his current financial statements to Lender and permit Lender or its representative to inspect, at Guarantor's offices, Guarantor's financial records and properties and make extra(.ts therefrom in order to evaluate the financial condition of Guarantor. 10. Primary Nature of Guaranty. This Guaranty is a primary and original obligation of Guarantor and is an absolute, unconditional, continuing and irrevocable guaranty of payment and shall rem4in in full force and effect without respect to future changes in conditions, including change of lawlor any invalidity or irregularity with respect to the issuance of any Obligations of Debtor to Lender;or with respect to the execution and delivery of any agreement between Debtor and Lender. 11. Cumulative Remedies. Lender shall have the right to seek recourse against Guarantor to ? e full extent provided for herein and in any other document or instrument evidencing obligationslof Guarantor to Lender, and against Debtor, to the full extend provided for in any loan agreement between Lender and Debtor. No election to proceed in one form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of Lender's right to proceed in any otYler form of action or proceeding or against other parties unless Lender has expressly waived such ri ' t in writing. All of Lender's rights, remedies and recourse are separate and cumulating; ma, be pursued separately, successively or concurrently; are nonexclusive; and the exercise of any onelor more of them shall in no way limit or prejudice any other legal or equitable right, remedy or recoi¢se to which Lender may be entitled. 12. Continuing Guaranty. This is a continuing guaranty. No action or proceeding by Lell4er against Debtor under any document or instrument evidencing or securing the Obligations shall sqi ve to diminish the liability of Guarantor, except to the extent Lender realized payment by such actionlor proceeding, notwithstanding the effect of any such action or proceeding upon Guarantor's right'of subrogation against Debtor. By acceptance hereof, Lender and Guarantor agree that Guarar" or hereby knowingly accepts the full range of risk encompassed within a contract of "Continuing Guaranty" which risk includes, but with limitation, the possibility that Debtor will incur additigi?al iiideiJteUneSS for which Guarantor may be liable hereunder after Debtor's fiiial'lciai CGuditlvn it7r ability to pay its lawful debts when they fall due has deteriorated. 13. Guarantor's Independent Investigation of Debtor. Guarantor is fully aware of the frnanc#al condition of Debtor. Guarantor delivers this Guaranty based solely upon his/its own independent investigation, and in no part upon any representation or statement of Lender with respect thereto. Guarantor warrants, based on its investigation, that Debtor is in sound financial condition and will perform in accordance with the terms and conditions of the Note and the Loan Documeor s. Guarantor is in a position to assume and hereby assumes full responsibility for obtaining any additional information concerning Debtor's financial condition as Guarantor may deem material Ito his obligations hereunder, and Guarantor is not relying upon, nor expecting Lender to furnish hntn, any information in Lender's possession concerning Debtor's financial condition. -4- 14. Reaffirmation of Obligations. Guarantor agrees that he will promptly execute and deliver, to Lender, or its designee, written reaffirmation of Guarantor's obligations hereunder, if so requested fby Lender from time to time. Guarantor's absolute obligation to make such reaffirmations is not to e construed to infer an absence of liability on Guarantor's behalf in any instance in which Gu, r its not asked to reaffirm (or fails to reaffirm) its obligations, notwithstanding any modification !of Debtor's obligations to Lender. 15. Binding Effect of Guaranty. Guarantor agrees that all the rights, benefits and privile es herein and hereby conferred upon Lender shall vest in, and be enforceable by Lender, its successors and assigns. Each Guarantor and his respective heirs, executors, administrators, persp al representatives, successors and assigns shall be jointly and severally bound and their respective sole and separate property and estate, together with their community property and estate, shall be jointly and severally bound by and liable for all of the terms, covenants and conditions of this Continip"ng Guaranty. 16. Governing Law. This Guaranty, all acts and transactions hereunder and the ri ghts d obligations of the parties hereto shall be governed, construed and interpreted according to the lave of the Commonwealth of Pennsylvania. I 17. Consent to Jurisdiction. As part of the consideration for Lender's granting credit to De r, Guarantor hereby consents to the exclusive jurisdiction of the Courts of Common Pleas !of Cumberland County, Pennsylvania, and/or the Untied States District Court for the Middle Distriti of Pennsylvania, in any and all actions or proceedings arising hereunder or pursuant hereto, d irrevocably agrees to service of process by personal service upon Guarantor wherever Guarantor ay be then located, or by certified or registered mail, return receipt requested, directed to Guaranto at his last known address. 18. Purpose of Guaranty. Guarantor hereby acknowledges that Guarantor is entering into It? is Guaranty to induce Lender to make the Loan to Debtor, and Guarantor acknowledges that Guara?' or is deriving a financial benefit from the making of the Loan. i 19. Modifications. No provision hereof shall be modified or limited, except by a written agreement expressly referring hereto and to the provision so. modified or limited, and signed 1by Guarantor and Lender. 20. Merger. This writing is intended by the parties as a final expression of this agreemei? of Guaranty and is intended also as a complete and exclusive statement of the terms of the agrees' nt. No course of prior dealing between the parties, no usage of the trade, and no parole or extrinsic evidence of any nature, shall be used or be relevant to supplement or explain or modify any term used in this agreement of Guaranty. I 21. Severability. In case any one or more of the provisions contained in this Guaranty shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or -5- a unenforceability shall not affect any other provision hereof, and this Guaranty shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 22. Notices. Guarantor agrees that any notice or demand upon it shall be deemed to The sufficiently given or served if it is in writing and is personally served or, in lieu of personal servi?e, is mailed by first class certified mail, postage prepaid, addressed to Guarantor at the addresses $et forth below. Any notice or demand so mailed shall be deemed received on the date of actual recl 'pt or the first business day following mailing. 23. Confession of Judgment. THE GUARANTOR HEREBY IRREVOCABLY AUTHORI S THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPI~J FOR THE GUARANTOR AND CONFESS JUDGMENT THEREIN FOR THE AMOUNT FOR WHICH THE GUARANTOR MAY BE OR BECOME LIABLE TO LENDER UNDER IS GUARANTY, WITH OR WITHOUT DEFAULT, PLUS AN ATTORNEYS' COMMISSION ?N THE AMOUNT OF FIVE PERCENT (5%) OF SUCH AMOUNT, WITH COSTS OF SUIT, AND RELEASE OF ERRORS. IF A COPY HEREOF, VERIFIED BY AFFIDAVIT OR SWO STATEMENT, SHALL HAVE BEEN FILED IN SAID PROCEEDING, IT SHALL NOT E NECESSARY TO FILE THE ORIGINAL . AS A WARRANT OF ATTORNEY. E GUARANTOR WAIVES THE RIGHT TO ANY STAY OF EXECUTION AND THE BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER IN EFFECT. EXECUTION M# IMMEDIATELY BE ISSUED ON THE JUDGMENT, WITHOUT PRIOR NOTICE j0R HEARING, TO GARNISH, LEVY OR ATTACH ANY PENDING PROPERTY '?F GUARANTOR. NO SINGLE EXERCISE OF THE FOREGOING WARRANT AND POWERI? 0 CONFESS JUDGMENT SHALL EXHAUST THE WARRANT, AND THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO TIME AS OFT#N AS LENDER SHALL ELECT, UNTIL ALL SUMS PAYABLE, OR THAT MAY BEC04E PAYABLE, HAVE BEEN PAID IN FULL. IN WITNESS WHEREOF, the undersigned duly executed this Guaranty this 29 h day of April, : c Witness Witness Juaran , with i tent to be legally bound, hlas X04 By s- (SEA?) ay . Brandt By (SEA1) Kare J. Brandt Address: 168 Richland Road Carlisle, PA 17013 -6- f i . DISCLOSURE FOR CONFESSION OF JUDGMENT THE UNDERSIGNED IS EXECUTING, THIS 29TH DAY OF APRIL, 200, A GUARANTY AND SURETYSHIP AGREEMENT ("GUARANTY") FOR $750,00.00 PAYABLE TO COMMERCE BANKM ARRISBURG, N.A. ("BANK") IN CONNECTION WITH A LINE OF CREDIT IN THE AMOUNT OF $750,000.00 TO J.H. BRAND, & ASSOCIATES, INC., A PENNSYLVANIA CORPORATION, FOR COMMERC AL PURPOSES. INITIAL THE UNDERSIGNED UNDERSTANDS THAT THE GUARANTY CONT S WORDING THAT WOULD PERMIT THE BANK TO ENTER JUDGMENT AGAST ME AT THE COURTHOUSE WHETHER OR NOT EVENT OF DEFAULT AS OCCURRED, WITHOUT NOTICE, AND WITHOUT OFFERING THE OPPORTUN. Ty TO DEFEND AGAINST THE ENTRY OF JUDGMENT, AND THAT THE JUDG NT MAY BE COLLECTED BY ANY LEGAL MEANS WITHOUT A PRIOR NOTICE O A HEARING BY USE OF THE SHERIFF, WHO MAY SEIZE PROPERTY, REAL AND PERSONAL, WITHOUT PRIOR NOTICE OR HEARING. INITIAL IN EXECUTING THE GUARANTY, I HAVE KNOWINGLY, UNDERSTANDINGLY, AND VOLUNTARILY WAIVED THE RIGHT TO RESIST HE ENTRY OF JUDGMENT AGAINST ME AT THE COURTHOUSE, AND CONSENT TO THE CONFESSION OF JUDGMENT. I FURTHER KNOWINGLY, UNDERSTANDINGLY, AND VOLUNTARILY WAIVE THE RIGHT TO ANY Pi+ OR 11, NOTICE OR HEARING PRIOR TO THE BANK'S SEIZING OF PROPERTY BY WRIT OF EXECUTION AGAINST BANK ACCOUNTS AND PERSONAL AND/OR IAL PROPERTY AFTER THE TTAINMENT OF A JUDGMENT BY CONFESSION. `/ INITIALS. I CERTIFY THA ANY BLANKS IN THIS DISCLOSURE WERE FILLE IN WHEN THE UNDERSIG D INITIALED AND SIGNED IT, AND THAT I RECE D A COPY OF THIS DISCL AT THE TIME OF SIGNING. INITIAL I CERTIFY THAT THE GUARANTY WAS EXECUTED IN CONNECTION WITH A COMMERCIAL TRANSACTION AND DOES NOT INVOLVE A CONSUI?'IER TRANSACTION. WITNESS: (SEA) "n J. Brandt or 11 • DISCLOSURE FOR CONFESSION OF JUDGMENT THE UNDERSIGNED IS EXECUTING, THIS 29' DAY OF APRIL, 2004, A NOTE PAYABLE TO COMMERCE BANK/HARRISBURG, N.A. ("BANK") IN CONNECTION UNDERSIGNED FRCLAL PURPOSES. WITH A REVOLNS:16- INIT UNDERSIGNED UNDERSTANDS THAT THE NOTE CONTAINS WORDING THE OF CREDIT IN THE AMOUNT OF $750,000.00 TO THE THAT WOULD PERMIT THE BANK TO ENTER JUDGMENT AGAINST THE UNDERSIGNED AT THE COURTHOUSE WHETHER OR NOT AN EVENT OF DEFAULT HAS OCCURRED, WITHOUT NOTICE, AND WITHOUT OFFERING' I THE OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT, AND THAT THE JUDGMENT MAY BE COLLECTED BY ANY LEGAL MEANS WITHOUT I PRIOR NOTICE OR A HEARING BY USE OF THE SHERIFF, WHO MAY SEIZE PROI?RTY, REAL AND PERSON T,WITHOUT PRIOR NOTICE OR HEARING. INITIAIN EXECUTING THE NOTE, THE UNDERSIGNED IS KNO GLY, UNDERSTANDINGLY, AND VOLUNTARILY WAIVING THE UNDERSIGNED'S RIGHT TO RESIST THE ENTRY OF JUDGMENT AGAINST THE UNDERSIGNED A THE COURTHOUSE, AND IS CONSENTING TO THE CONFESSION OF JUDGMENT. THE UNDERSIGNED FURTHER KNOWINGLY, UNDERSTANDINGLY, AND VOLUNTARILY WAIVES THE UNDERSIGNED'S RIGHT TO ANY PRIOR NOTICE OR HEARINGI RIOR TO THE BANK'S SEIZING OF PROPERTY BY WRIT OF EXECUTION AGAINST BANK ACCOUNTS AND PERSONAL AND/OR REAL PROPERTY AFTER THE ATTA NT OF A JUDGMENT BY CONFESSIO INITIALS:- A?6 THE UNDERSIGNED CERTIFIES THAT THE NOTE WAS EXECUT D IN CONNECTION WITH A COMMERCIAL TRANSACTION AND DOES NOT INVO VE A CONSUMER TRANSACTION, AND THAT THE UNDERSIGNED HAS RECE D A COPY OF THIS DISCLOSURE AT THE TIME OF SIGNING. ATTEST: J.H. BRANDT & ASSOCIATES, INC. I By:" H, randt Secreta eesident 10 ' " 1k- C14ANGE IN TERMS AGREEMEh _ _. -incipal,. 'Loan Date Maturity Loan No Can / Con Account Officer Initials 7),000.60 06-01-2004 3150795 2311 R, !ferences in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loam; or item. Any item above containing "***" has been omitted due to text length limitations. Borrower: J.H. Brandt &Associates, Inc. 657 Forge Road Carlisle, PA 17013 Lender: COMMERCE BANK/HARRISBURG N.A. COMMERCIAL BUSINESS DEPARTMENT 3801PAXTON STREET HARRISBURG, PA 17111 (888) 937-0004 Principal Amount: $770,000.00 Initial Rate: 5.750% Date of Agreement: October 24, 2008 DESCRIPTION OF CHANGE IN TERMS. Effective as of the date of this Change in Terms Agreement, the maximum availability under the Line of Credit is temporarily increased from $750,000.00 to $770,000.00 until November 24, 2008 at which time the loan amount will The reduced to $750,000.00 without further notice to Borrower, CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of the original obligation or obligations, including all agre:ments evidenced or securing the obligation(s), remain unchanged and in full force and effect, Consent by Lender to this Agreement does not waive Lender's right to strict performance of the obligation(s) as'changed, nor obligate Lender to make any future change in terms. Nothing in &is Agreement will constitute a satisfaction of the obligation(s). It is the intention of Lender to retain as liable parties aI makers and endc rsers of the original obligation(s), including accommodation parties, unless a party is expressly released by Lender in writing Any maker or ends rser, including accommodation makers, will not be released by virtue of this Agreement. If any person who signed the orf inal 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 n t be released by it This waiver applies not only to any initial extension, modification or release, but also to all such subsequent actions. THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE ANG HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. PRICR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS AGREEMENT; BORROWER AGREES TO THE TERMS OF THE AGREEMENT. BORROWER: J .BRANDY ASSOCt INC. BY: (Seaq Jay . Brandt, President of J.H. Brandt & As ciates, Inc. i LASER IRO LMWnB. Var. 6.10.00.007 Cep,. MvImE FneneOY Belutlene, Mt. 1997, 2008. N Rgnu B,envlp. • PA 5:1CPttLR1010C.Ft TP-7283 GP-18 I 1 I I I I ?I I V i I.. F„ ?n_{rv, roc r ' 4a7.5o Po A- TTY ce (Pato43 RTO a wso ?o?lCe. HENRY & BEAVER LLP By: John H. Whitmoyer I.D. #07038 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 METRO BANK f/k/a COMMERCE BANKIHARRISBURG, N.A., Plaintiff vs. JAY H. BRANDT and KAREN J. BRANDT, husband and wife, Defendants I I i IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVAN14 CIVIL ACTION - LAW No. -(a3? -?- . I ter rn PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of John H. Whitmoyer, of the law firm of Henry & Bea er LLP, whose address is 937 Willow Street, P.O. Box 1140, Lebanon, PA 17042-1140 as att?rney for Metro Bank f/k/a Commerce Bank/Harrisburg, N.A., the Plaintiff in the above-captioned case. Dated: 2009 i n H. Whitmoyer ;^D. #07038 Attorney for Plaintiff FILEC- OF THE .? ,-,P,OrARY 2009 SEP 21 Pi's 4 5 1... t t; y . .t HENRY & BEAVER LLP By: John H. Whitmoyer I.D. #07038 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 METRO BANK f/k/a COMMERCE BANK/HARRISBURG, N.A., Plaintiff vs. JAY H. BRANDT and KAREN J. BRANDT, husband and wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. M-650 'vilTex'rn AFFIDAVIT AS TO NON-MILITARY SERVICE AND CERTIFICATION OF LAST KNOWN ADDRESS OF DEFENDANTS AND PLAINTIFF COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF DAUPHIN Before me the undersigned authority, personally appeared Amy M. Custer, 'Asset Recovery Supervisor, of Metro Bank f/k/a Commerce Bank/Harrisburg, N.A., who being duly sworn according to law, deposes and says that upon reasonable investigatiorh?!to the best of her knowledge and belief the Defendants are not in the active Military or Naval Service of the United States of America and that the last known addresses of said Defendants are as follows: Jay H. Brandt, 44 Brandt Lane, Newville, PA 17241 and j qqi Karen J. Brandt, 46 Mt. Rock Road, Newville, PA 17241. The address of the above Plaintiff is 3801 Paxton Street, Harrisburg, PA 17111. METRO BANK f/k/a COMMERCE BANK/HARRISBURG, N.A. By: Asset Sworn a9d subscribed to before me this day of September, 2009. s/ Notafy Public WVWNWEALTH OF PENNSYLVANIA Notarial Seal Tammy D. Clark, Notary Public &ftWa Twp., Dauphin County Jan. 15, 2013 Me 2 2009 SEP 21 PM 3: 4 J r OFFICE OF THE PROTHONOTARY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA i TO: Jay H. Brandt, 44 Brandt Lane, Newville, PA 17241 METRO BANK f/k/a COMMERCE IN THE COURT OF COMMON PLEAS BANK/HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA, Plaintiff CIVIL ACTION - LAW vs. No. Cq-(a3CJ Civil JAY H. BRANDT and KAREN J. : BRANDT, husband and wife, Defendants NOTICE Pursuant to Pa.R.C.P. Rule 236 please be advised that judgment by confession in the i above proceeding was entered against you on , 2009, in the amount of:! Principal Sum Due - $ 770,000.00 Interest to 09/04/09 6,200.93 Attorneys' commission 38.810.05 Total $ 815,010.98 Plus all future accruing interest until paid in full, a reasonable attorneys' commission, togefher with costs of suit and all other amounts, fees, and costs incidental to execution and levy. Copies of all documents filed are attached hereto. P othonotary