HomeMy WebLinkAbout11-00971
Donald L. Kornfield, Esq.
Kornfield and Benchoff, LLP
17 North Church Street
Waynesboro, PA 17268
(717) 762-8222
FAX 762-6544
don@kornfield.net
Atty. I.D. #19242
GRAYSTONE BANK
Plaintiff
vs.
STEVEN T. KYZER
Defendant
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~- k 6.. .. i' 8 t 3'' 4 5? V
IN THE COURT OF COMMON PLEAS OF
THE 9th JUDICIAL DISTRICT, PA.
CUMBERLAND COUNTY BRANCH
CIVIL ACTION -LAW
. No. 01011- R `7 C[ ~ ~ T~""V`
CONFESSION OF JUDGMENT
PURSUANT TO Pa. R.C.P. RULE 2951 (b)
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 Defendant and confess judgment in favor of the
Plaintiff and against Defendant as follows:
Principal balance $70,156.06
Interest to 12/08/2010 838.27
Late charges 10,306.30
Prepayment 2%/60 months 503.14
Attorney fees 7.099.44
Total $88,903.21
PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT YOU ARE
ADVISED THAT THIS LAW FIRM IS DEEMED TO BE A DEBT COLLECTOR ATTEMPTING
TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT
PURPOSE.
AND B~NCHO~'F, LLP
By
a yaa
A rney for D endan Pursuant to Warrant of
Attorney Contained in Complaint Filed
Hereinbefore
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~~~~~~
Donald L. Kornfield, Esq.
Kornfield and Benchoff, LLP
17 North Church Street
Waynesboro, PA 17268
(717) 762-8222
FAX 762-6544
don@kornfield.net
Atty. I.D. #19242
GRAYSTONE BANK IN THE COURT OF COMMON PLEAS OF
Plaintiff :THE 9th JUDICIAL DISTRICT, PA.
vs. :CUMBERLAND COUNTY BRANCH
STEVEN T. KYZER
CIVIL ACTION -LAW
Defendant No.
COMPLAINT
NOW COMES Plaintiff and states:
1. Plaintiff is Graystone Bank, a banking institution, with offices located at 112 Market
Street, Harrisburg, Dauphin County, Pennsylvania.
2. Defendant is Steven T. Kyzer, a sui juris adult, living and residing at 532 Lucinda
Lane, Mechanicsburg, Cumberland County, Pennsylvania.
COUNTI
3. Paragraphs 1 and 2 are incorporated herein.
4. Attached hereto as Exhibit A and made a part hereof is a true and correct copy of the
original Commercial Guaranty dated February 28, 2008, executed by Defendant, containing a
warrant of attorney, in conjunction with a loan from Plaintiffto Hollywood Restaurant Group, LLC,
which loan is in default.
5. The instant judgment is not being entered by confession against a natural person in
connection with a consumer transaction.
6. The guaranty has not been assigned.
7. No judgment has been entered upon the guaranty in any jurisdiction.
8. Defendant is indebted to Plaintiff in the principal sum of $25,156.88, which amount
represents the balance due Plaintiff pursuant to the Promissory Note signed by Hollywood Restaurant
Group, LLC dated February 28, 2008, together with interest and attorney's fees.
9. A true and correct copy of the Promissory Note to Plaintiff is attached hereto as
Exhibit B and made a part hereof.
10. Defendant is indebted to Plaintiff as follows:
Principal balance
Interest to 12/08/2010
Late charges
Prepayment 2%/60 months
Attorney fees
Total
$25,156.88
490.77
6,731.27
503.14
2,564.77 (only fees incurred will be collected)
$35,446.83
11. By reason of Defendant's guaranty to Plaintiff and Defendant's default, Plaintiff is
entitled to judgment against Defendant in the sum of $35,446.83.
WHEREFORE, Plaintiff demands judgment against Defendant on Count I in the amount of
$35,446.83, together with interest from December 9, 2010, at the rate of $6.11 per diem, court costs
and such other damages as may be available at law.
COUNT II
12. Paragraphs 1 and 2 are incorporated herein.
13. Attached hereto as Exhibit C and made a part hereof is a true and correct copy of the
original Commercial Guaranty dated February 28, 2008, executed by Defendant, containing a
warrant of attorney, and attached hereto as Exhibit D and made a part hereof is a true and correct
copy of the original Change in Terms Agreement dated September 25, 2009, in conjunction with a
loan from Plaintiff to Hollywood Restaurant Group, LLC, which loan is in default.
14. The instant judgment is not being entered by confession against a natural person in
connection with a consumer transaction.
15. The guaranty has not been assigned.
16. No judgment has been entered upon the guaranty in any jurisdiction.
17. Defendant is indebted to Plaintiff in the principal sum of $44,999.18, which amount
represents the balance due Plaintiffpursuant to the Promissory Note signed by Hollywood Restaurant
Group, LLC dated February 28, 2008, together with interest and attorney's fees.
18. A true and correct copy of the Promissory Note to Plaintiff is attached hereto as
Exhibit E and made a part hereof.
19. Defendant is indebted to Plaintiff as follows:
Principal balance $44,999.18
Interest to 12/08/2010 347.50
Late charges 3,575.03
Attorney fees 4,534.67 (only fees incurred will be collected)
Total $53,456.38
20. By reason of Defendant's guaranty to Plaintiff and Defendant's default, Plaintiff is
entitled to judgment against Defendant in the sum of 53,456.38.
WHEREFORE, Plaintiff demands judgment against Defendant on Count II in the amount of
$53,456.38 together with interest from December 9, 2010, at the rate of $6.56 per diem, court costs
and such other damages as may be available at law.
WHEREFORE, Plaintiff demands judgment against Defendant on Count I and Count II in the
amount of $88,903.21 together with interest from December 9, 2010, at the rate of $12.67 per diem,
court costs and such other damages as may be available at law.
KOR~IFIF~b~D AND I j~NCI~O~'F, LLP
By
Ds~afid L. K
Attorney for
I verify that the statements made in this Complaint aze true and correct. I understand that
false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to
unsworn falsification to authorities.
GRAYSTONE BANK
COMMERCIAL GUARANTY
Borrower: Hollywood Restaurant Group, LLC Lender: ~ GRAYSTONE BANK
400 Forster Street Capital Region
Harrisburg, PA 17102 112 Market Street
• Harrisburg, PA 17101
Guarantor: Steven T. Kyzsr
532 Lucinda Lane
Mechanicsburg, PA 17055
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 ell
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 Untied Slates 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" es 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, reasonable
attorneys' fees, arising from any and all debts, liabilhies 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 limhation,
loans, advances, debts, overdraft indebtedness, credh card indebtedness, lease obligations, liabilities and obligations under ariy interest rate
protection agreements or foreign currency exchange agreements or commodity price protection agreements, other obligations, and liabilities of
Borrower, end ariy 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 maybe voidable for any reason (such as infancy, insanity, uhra vitas 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) effect or invalidate any such other guaranties.
Guarantor's liability will be Guarantor's aggregate Iiabilhy 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, end will continue in full force until all the Indebtedness incurced or contracted before receipt by Lender of
any notice of revocation shall have been fully and finally paid and satisfied and ell 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 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 wfiich at the time of notice of
revocation is contingent, unliquidated, undetermined or not due and which later becomes• absolute, liquidated, determined or due. For this
purpose and without limitation, "new Indebtedness" does not include all or part of the Indebtedness that is: incurred by Borrower prior to
revocation; incurred under .a commitment that became binding before •revocation; any renewals, extensions, substhutions, and modifications of
the 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 end whh 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 antic~ated that fluctuatbna 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 (50.001, shag not constitute a
termination of thle Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and assigns ao bng as any of the
Indebtedness remains unpaid and even though the Indebtednasa may from time to time be zero dollars (50.00).
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or alter any revocation hereof, without notice' or
demand and wthout lessening Guarantor's liability under thEs 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 credh to Borrower; (B) to aher, 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; ID} to release, •substitute, agree not to sue, or deal whh 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 lie 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 securty agreement or deed of trust, as Lender in hs discretion
may determine; (GI 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) EXHIBIT
agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaran A
executed at Borcower's request and not at the request of Lender; (C) Guarantor has full power, right and authority to f/~\C
ID) the provisions of this Guaranty do not conflict with or resuh in a defauh under any agreement or other instrument
COMMERCIAL GUARANTY '
. Loan No: 4-4890 ~ (Continued) ~ Page 2
and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor; IE) Guarantor has not and will riot, 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 end will be true and correct in ell material respects and fairly present Guarantor's financial condition as of the dates the financial
information is provided; IG) 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 Ikigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or
threatened; fp 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 one-hundred-twenty (120) 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 whh GAAP, applied on a consistent basis, and
certified by Guarantor as'being true and correct.
GUARANTOR'S WAIVERS. Except as prohibted by applicable law, Guarantor waives any right to require Lender (A) to continue lending
money or to extend other credit to Borrower; IB) 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; (C1 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 securhy held by Lender from Borrower or to comply with
any other applicable provisions of the Uniform Commercial Code; IFI 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; IC) 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 (FI 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 parry, 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 relief of debtors, the
Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty.
Guarantor further waives end egress 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 ff 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 agairist Borrower. In the event of insolvency end 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 Lander 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 end 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
end 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 Guaranrty:
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 of amendment.
.,
• COMMERCIAL GUARANTY
Loan No: 4-4890 (Continued)
Page 3
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand alt of Lender's casts and expenses, including Lender's reasonable
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. Coats and expenses
include Lender's reasonable attorneys' fees and legal expenses whether or not there is a lawsuit, including reasonable 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 riot 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
lawn of the CommonweaMh of Pennsylvania without regard to its conflicts of law provisions.
Choice of Venue. If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Dauphin
County, Commonweahh of Pennsylvania.
Integration. GUararnof 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 resuk 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 then 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 wilt 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, ft is not necessary for Lender to inquire
irno the powers of Borrower or Guarantor or of the officers, directors, partners, managers, dr 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 Unted
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 GUararnOr'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 consttute 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 Lendsr 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 Guararnor, and upon Guarantor's heirs, personal
representatives; successors, and assigns, and shall be enforceable by Lender and its successors and assigns.
Waive Jury. Lsnder and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either
Lender or Guarantor against the other.
CROSS COLLATERALIZE/CROSS DEFAULT. This loan will be cross-collateralized/cross-0efaulted with all other loans from Borrower, or any of
Borrower's related entities, to Lender. If at any time there is a default under this loan, all loans will be considered in defauk and all outstanding
amounts under the loans will be immediately due and payable in full. A default in one loan shall constitute a default in all others.
DEFlNITIONS. 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:
13orrowsr. The word "Borrower" means Hollywood Restaurant Group, LLC and includes aU 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 Guararny,~including without limitation Steven T. Kyzer, .and in each case,
any signer's successors and assigns.
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 Guararny.
Lender. The word "Lender" means GRAYSTONE BANK, its successors and assigns.
Note. The word "Note" means and includes without limitation all of Borrower's promissory notes andlor 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 the promissory notes or credit agreements. '
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
COMMERCIAL GUARANTY
Login No: 4-4890 - ~ ~ (Continued) .
Pege
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 wkh 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 (85001
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 WANES 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 FEBRUARY 28, 2008.
THIS GUARANTY IS GIVEN UNDER SEAL AND IT LS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT
OF A SEALED INSTRUMENT ACCORDING TO LAW.
GUARANTOR:
X ,~
ISeaq
Steven T. Kyzer
users vno wa.a vr. e.se.ioaoi aw. M.rm a.",aw swee".. Me. ua~, oooe. N ~b n...,..a. - rw s:wo.+cacnan~em.rc rni~ee rn-e
PROMISSORY NOTE
Borrower: Hollywood Restaurant Group, LLC Lender: GRAYSTONE BANK
400 Forster Street Capital Region
Harrisburg, PA 17102 ~ •112 Market Streat~
Harrisburg, PA 17101 •
Principal Amount: 845,000.00 Interest Rate: 8.75096 ~ Date of Note: February 28, 2008
PROMISE TO PAY. Hollywood Restaurant Group, LLC ("Borrower") promises to pay to GRAYSTONE BANK ("Lender"), or order, in lawful
money of the United States of America, the principal amount of Forty-fwe Thousand & 00/100 Dollars ($45,000.001, together with interest at
the rate of 8.750% per annum on the unpaid principal balance from February 28, 2008, until paid in full. The interest rate may change under
the terms and conditions of the "INTEREST AFTEA DEFAULT" aectbn.
PAYMENT. Borrower wAl pay this loan in 69 payments of $931.27 each payment and an irregular last payment estimated at $931.38.
Borrower's first payment is due March 28, 2008, and all subsequent payments are due on the same day of each month after that. Borrower's
final payment will bs due on February 28, 2013, and wip be for aY principal and an 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 tests. The annual Interest rata for this Nots 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, multipged 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 PENALTY. Upon prepayment of this Note, Lender is entitled to the folbwing prepayment penalty: A prepayment fee wig be
charged if the Note is prepaid, In whole or in part, during the fixed rate period. The fee will be calculated at two percent 42%) of the principal
amount prepaid. A prepayment fee wNl not be charged on any amount prspatd within any loan year from lnternagy generated funds. Except for
the foregoing, Borrower may pay all or a portion of the amount owed earlier tlran k fe due. Early payments will not, unless agreed to by Lender
in wrhing, 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", ar 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:
GRAYSTONE BANK, 112 Market Street Harrisburg, PA 17101.
LATE CHARGE. If a payment is 1 b days or more late, Borrower will be charged 10.000% of the regularly scheduled payment or $250.00,
whichever is greater.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by 2.000
percentage points. If judgment is entered in connection with this Note, interest will continue to accrue after the date of judgment at the rate in ,
effect at the time judgment is entered. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable
law.
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.
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.
Death or Insolvency. The dissolution of Borrower (regardless of whether election to continue is made), any member wkhdraws from
Borrower, or any other termination of Borrower's existence as a going business or the death of any member, 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 credtor 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
Defauk.
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. .
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; k may be cured if Borrower, after receiving written notice from
Lender demanding cure of such defauh: 11) cures the defauh within fifteen (15) days; or (2) if the cure requires more than fifteen (15)
days, immediately inhlates steps which Lender deems in Lender's sole discretion to be sufficient to cure th
continues end completes all reasonable and necessary steps sufficient to produce compliance.as soon as reasonab
LENDER'S RIGHTS. Upon defauh, Lender ma after EXHIBIT
y, giving such notices as required by applicable law, declare t
balance under.this Note and ell accrued unpaid interest immediately due, and then Borrower will pay that amount.
ATTORNEYS' FEES; EXPE111SES. Lender may hire or pay someone else to help collect this Note if Borrower does n
Lender that amount. This includes, subject to any limits under applicable law, Lender's reasonable attorneys' fees and
PROMISSORY NOTE
Loan No: 4-4890 ~COntinued) Page 2
whether or not there is a lawsuit, including reasonable 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 extant not preempted by federal law, the laws of
the Commonwealth of Pennsyhrania without regard to its conflicts of law provisions. This Note has been accepted by Lender in the
Commonwealth of Pennsylvania.
CHOICE OF VENUE. If there is a lawsuh, Borrower agrees upon Lender's request to submh 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 whh someone else and all accounts Borrower may
open in the future. However, this does not include any IRA or Keogh accounrts, 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.
SECURITY. All collateral (as herein defined) is security for this Note and any renewals, extensions and modifications thereof, end 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 li) described in any mortgage, pledge, assignment or other security document separately executed in
favor of Lender, and (ii) in which a security inrterest has been granted to Lender pursuant to this Note.
CROSS COLLATERALIZE/CROSS DEFAULT. This loan will be cross-collateralized/cross-defaulted with all other loans from Borrower, or any of
Borrower's related entities, to Lender. If at any time there is a default under this loan, all Icans will be considered in default and all outstanding
amounts under the loans will be immediately due and payable in full. A defauh in one loan shall constitute a default in all others.
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 wrhing, 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 guaranKor 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 (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR
COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (5500) 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.
. PROMISSORY NOTE
Loan No: 4-4890 (Continued)
Page 3
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 n' IS INTENDED THAT THIS NOTE 15 AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A
SEALED INSTRUMENT ACCORDING TO LAW.
BORROWER:.
ROLL D R TAUBOdI~GROUP, LLC
BY: ISeall By:
Robert Fogelman, mbar o Hollywood
Rsateu nt Group, LLC
BY~ / ~ -- (Beall
teven ember of Hollywood Restaurant
Group, LLC
LENDER:
X
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COMMERCIAL GUARANTY
Borrower: Hollywood Restaurant Group, LLC Lender: GRAYSTONE BANK
400 Forster Street Capital Region
Harrisburg, PA 17102 112• Market Street
• Harrisburg, PA 17101
Guarantor: Steven T. Kyzer .
fi32 Lucinda Lane
Mechanicsburg, PA 17055
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and uncondkionalty
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 collates! 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, end 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 end at any
one or more times, accrued unpaid interest thereon end ell collection costs end legal expenses related thereto permitted by law, reasonable
attorneys' fees, arising from any and ell 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 limtation,
loans, advances, debts, overdraft indebtedness, credit card indebtedness, lease obligations, liabilities and obligations under any interest rate
protection agreements •or foreign currency exchange agreements or commodity price protection agreements, 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, liabilhies end 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, uhra vires or otherwise); end 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 GUaraMOr, 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 end 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 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. For this
purpose and without limitation, "new Indebtedness" does not include ell or part of the Indebtedness that is: incurred by Borrower prior to
revocation; incurred under a commitment that became binding before revocation; any renewals, eMensions, substitutions, and modifications of
. the 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 of 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
Guesnty. A revocation Lender receives from any one or more Guarantors shell 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 (30.001, shag not constrttite a
terminatron 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 lima be zero dollars ($0.001.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice.or
demand and without leasenMrg Guarantor's liability under this Guaranty, from time to lane: {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 Borcower; (BI to aher, 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; {CI 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; {DI 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; IE- to determine how, when and what application of
payments and credits shall be made on the,lndebtedness; IFI fo apply such security end 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 EXHIBIT
agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Gu
executed at Borcower's request and not at the request of Lender; {C1 Guarantor has full power, right and autho '
(D) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instru G
1 , ~
COMMERCIAL GUARANTY
Loan No: 4-4893 ~ (Continued)
Page 2
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, end all such financial information which currently has been, and all future financial information which will be provided to
Lender is end will be true and correct in all material respects and fairly presets 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; Iq Lender has made no representation to Guarantor as to the credftworthiness 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 attar the end of each fiscal year,
Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor.
Taz Returns. As soon as available, but in no event later than one-hundred-twenty (120) 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, end
certified by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender IA) to continue lending
money or to extend other credit to Borrower; IB) 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; (CI to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor;
ID) 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; IF1 to pursue any other remedy within Lender's power; or (GI 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 IA) 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 limhing, qualifying, or discharging the Indebtedness; IC) any disabilhy 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; IE) 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 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 Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers ere 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 eccountl. This includes all accounts Guarantor holds jointly whh 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 end 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 ere a part of this Guaranty:
Amendments. This Guaranty, together whh any Related Documents, constitutes the entire understanding end agreement of the parties as
to the matters set forth in this Guaranty. No ateration 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.
~ 1 "•
. COMMERCIAL GUARANTY
Loan No': 4-4893 (Continued)
Page ~3
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand- all of Lender's costs and expenses, including Lender's reasonable
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 end expenses of such enforcement. Costs and expenses
include Lender's reasonable attorneys' fees and legal expenses whether or not there is a.lawsuk, including reasonable 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 end are not to be used to interpret or detine the
provisions of this Guaranty.
Governing Law. This Guaranty will be governed by federal law appGcabb to Lander and, to the extent not preempted by federal law, the
laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions.
Choice of Venue. If there is a lawsuk, Guarantor agrees upon Lender's 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 Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intention's end parol
evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from ell losses,
claims, damages, and costs•fincluding 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 kself 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 whh a nationally recognized overnight courier, or, if mailed, when deposked 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 consttute a waiver of Lender's right otherwise to demand
strict compliance whh 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 Guarantor against the other. ~ _
ANNUAL REVIEW. The Lender will review the Note annually for renewals and extensions; such renewals and extensions to be granted
predicated on the performance of the company and/or individuals and adherence to the Loan Agreement and/or loan policy. .
CROSS COLLATERALI2E/CROSS DEFAULT. This loan will be cross-collateralized/cross-defaulted with all other loans from Borrower, or any of
Borrower's related entities, to Lender. If at any time there .is a default under this loan, all loans will be considered in default and ell outstanding
amounts under the loans will be immediately due and payable in full. A defauh in one loan shall constitute a defauk in ell others.
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 end 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 Hollywood Restaurant Group, LLC 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 Steven T. Kyzer, and in each case,
any signer's successors and assigns. ~ -
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 GRAYSTONE BANK, its successors and assigns.
Note. The word "Note" means and includes without limitation all of Borrower's promissory notes end/or credit agreements evidencing
Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations
COMMERCIAL GUARANTY
Loan No: 4-4893 (Continued)
of and substitutions for promissory notes or credit agreements.
Page 4
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
PROTWONOTARY 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 (5500}
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 FEBRUARY 28, 2008.
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:
usEn PRO I.rlnE. v.. s.x.~o.ow ceP..
Salutlp4, Ina. 1N7. 700. AE NEI~b Rarr,e. • PA 8:1p.0"ds1CFlUPl1E70.R 1i417E7 PIF7
r
PROMISSORY NOTE
Borrower: Hollywood Restaurant Group, LLC Lender: GRAYSTONQ BANK
400 Forster Street Capfta! Region
Harrisburg, PA t 7102 112 Market Street
HaMsburg, PA 17101
Principal Amount: 51.5,000.00 Date of Note: February 28, 2008
PROMISE TO PAY. HoYywood Restaurant Group, LLC 1"Borrowei") promises to pay tc GRAYSTONE BANK ("Lender"), or•order, in lawful
money of the Untied States of America, on demand, the principal amount of FHteen Thousand & 00/100 DoNars (816,000.00) or so much as
may bs outstandimg; together with interest on the unpaid outstanding prficipal balance of each advance. Interest shall be ca~ulated from the
date of each advance untU repayment of each advance.
PAYMENT. Borrower will pay this loan to full immediately upon Lender's demand. Borrower wNl pay regular monthly payments of all accrued
unpak Interest due as of each payment date, begfining April 1, 2008, wlth all subasqusnt fitsrest paymaits tc- bs due on the same day of each
month after that. Unless otherwise agreed or required by applicable law, payments wail bs appied first to any accrued unpaid fiterest• then to
principal; then to any late charges; and then to any unpaid coUectlon costs. Tha annual fitarest rate for this Nots b computed on a 365/360
baaia; that b, by applying the ratio of the annual interest rate over a year of 360 days, mulNpUed by the outstanding prficipal balance, multiplied
by the actual number of days the prfidpal balance Is outstanding. Borrower wBl pay Lender at Lender's address shown above or at such other
place as Lender may designate fi writlng.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in en index which is
Lender's Prime Rete (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 interest rate to be applied to the unpaid principal balance during this Note will be at a rate of
2.000 percentage points over the Index. NOTICE: Under no circumstances will the interest rate on this Note be less than 5.000% per annum
or more than the maximum. rate allowed by applicable law.
PREPAYMENT. Borrower may pay wlthout penalty all or a portion of the amount owed eerlior.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 of accrued unpaid interest. Rather, early
• payments will reduce the principal balance due. BorroNVer 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 obggated 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 amoum owed or that is tendered .with other '
conditions or Umltations or as full satisfaction of a disputed amount must be mailed or delivered to: GRAYSTONE BANK, 112 Market Street
Harrisburg, PA 17101.
LATE CHARGE. If a regularly scheduled interest payment is 20 days or more late, Borrower will be charged 10.000% of the regularly scheduled
payment or $260.00, whfihever is greater. If Lender demands payment of this loan, and Borrower does not pay the loan In full within 20 days '
after Lender's demand, Borrower also wUl be charged either 10.000% of, the sum of the unpaid principal plus accrued unpaid Interest or
S2b0.00, whichever is greater.
INTEREST.AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by
adding a 2.000 percentage point margin ("Default Rate Margin"). The Default Reto Margin shall also apply to each succeeding interest rate
change that would have applied had there been no default. If judgment is entered in connection with this Note, interest will continue to accrue
after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the interest rate exceed the maximum,
interest rate limitations under applicable law.
LENDER'S RIGHTS. Upon Lender's demand,' Lender may, afte[.giving such notices as required by applicable law, declare the entire unpaid
principal balance under this Note and all accrued unpaid interest immediately due, end 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 reasonable attorneys' fees and Lender's legal expenses,
whether or not there is a 1ewauit, including reasonable 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 WANER..Lender and Borrower hereby waive the rigbt to any jury trial In any action, proceeding, or counterclaim brought by either Lender
or Borrower agsfist the other:
GOVERNING LAW. This Npte•wUl be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of
the Commortweshh of Pennsylvania without regard to its conflicts, of law provisions. 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 aU accounts Borrower holds jointly with someone else and all accounts Borrower may
open in the tuture..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 may be requested either orally ar in writing by
Borrower or by an authorized person. All oral requests shall .be confirmed in writing on the day .of the request, on forms acceptable to Lender.
All communications, instructions, or directions by telephone or otherwise to Lander era to be directed to Lender's office shown above. Borrower
agrees to be liable for all sums either: lA) advanced in accordance with the instructions of an authorized person or B cre
Borrower's eccouMS with Lender. The unpaid principal balance owing on this Note at any time may be evidenced
or by Lender's internal records, including daily computer print-outs. EXHIBIT
SECURITY. All collateral las herein defined) is security for this Note and any renewals, extensions and modificati
pertormance and discharge of all other present or future indebtedness, obligations and undertakings (whether i
contingent or otherwise) of the Borrower to or for the benefit of Lender, whether arising directly to Lender undo
agreement, promissory note or undertakings now existing or hereinafter entered into by the Borrower to the L
includes ell tangible and intangible property li) described in any mortgage, pledge, assignment or other security d
~ ~P ~
PROMISSORY NOTE
Loan No: 4-4893 ~ (Continued). • . Page 2
-favor of Lender, and lit) in which a security interest has been granted to Lender pursuant to this Note.
ANNUAL REVIEW. The Lender will review the Note annually for renewals and extensions; such renewals and ,extensions to be granted
predicated on the performance of the company and/or individuals and adherence to the Loan Agreement and/or loan policy.
CROSS COLLATERALI2E/CROSS DEFAULT. This loan will be cross-collateralizedlcross-defaulted with all other loans from Borrower, or any of
Borrower's related entities, to Lender. If at any time there is a default under this loan, all loans will be considered in default end all outstanding
amounts under the loans will be immediately due and payable in full. A default in one loan shall constitute a defauR in ell others.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upori Borrower, and upon Borrower's heirs, personal representatives,
successors and assigns, and shall inure to the benefit of Lender and hs 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 eMent 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 chat 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 wthout 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 110%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR
COLLECTIbN, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (5500) 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:
HOLLY T UR1~1T GROUP, LLC
By: VIXI ISeaq By:
Robert S. Fogelman, Member of Hollywood
Reatauran Group, LLC
BY~ ISeaq
Steven T. Kyzer, er of Hollywood Restaurant
Group, LLC
LENDER:
GAAYSTONEBAN
X
Steven D. Butz, Vice President
lASFR PRO I~MYp, Yom. 6.7&tO.CDt Cpr. IIr47W M~ndY SoluYOnb Inc. 1887, 1000. NI RIpM~ RNwrtl. ~ PA !.
'7porIMCRYll107A.PC 1R•17l7 PMl
N ~r r
CHANGE IN TERMS AGREEMENT
BOrrOWer: Hollywood Restaurant Group, LLC Lender. Groystone Bank, a Division of Graystons Tower Bank
400 Forster Street Capital Region
Harrisburg, PA 17102 112 Market Street
Harrisburg, PA 17101
Principal Amount: 545000.00 Date of Agreement: September 25r 2009
DESCRIPTKN OF EXISTING INDEBTEDNESS. On February 28, 2008, Borrower executed and delivered to Lender a Promissory Note in the
origins! Prindpal Amount of Fifteen Thousand and 00/100 Dollars ($15,000.00) ("Note').
DESCRIPTION OF CHANGE IN TERMS. Effective the date of this Agreement, and as provided under the PAYMENT section of this Agreement,
Lender and Borrower have agreed to an incxease in the Prindpal Amount of the Note to Forty Five Thousand and 00/100 Dollars ($45,000.00).
PROMISE TO PAY. Hotlywood Restaurortt Group, LLC ("Borrower") promises to pay to Graystone Bank, a Division of Groystone Tower Bank
("Lender"), or order, In lawrul morwy of the United Staten of America, on demand, the prindpal amount of Forty-flw Thousand 8 00/100 Dollars .
(546,000.00) or so much as may be outstanding, together with inbrest on the unpaid outstanding princpal balance of each advance. Interest
shall be calculrltsd from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan M fu0 Immedletely upon Lenders demand. Borrower will pay regular monthly payments of all accrued
unpakl inbrest due as of each payment date, bpinntng October 1, 2009, with alt subsequent Interest payments to be due on the same day of
each month oiler thst. Unless otherwise agreed or required by applicable law, payments wNl be appled first to any accrued unpaid interest;
then to principal; then to any late charges; and then to any unpaid collection costs. Borrower will pay Lender at Lenders address shown above
or at such other place as Lender may deslgnab in writing.
VARIABLE INTEREST RATE The interest rate on this loan 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 bwest rate available from Lender at any given Ume. Lender will tell Borrower the current
Index rate upon Borrowers request. The interest rete change will not occur more often than each day. Borrower understands that Lender may
make loans based on other rates as well. Interest on the unpaid principal balance of this loan will be calculated as described in the "INTEREST
CALCULATION METHOD" paragraph using a rate of 2.000 percentage points over the Index. NOTICE: Under no circumstances will the interest
rate on this k>an be less than 5.000% per annum or more than the maximum rate allowed by applicable law.
INTEREST CALCULATION METHOD. Interest on this loan is compared on a 365/360 basis; that Is, by applying the rotlo of the irderost rate over
s year of 360 days, muWplk+d by the outstanding principal balance, mu@iplled by the actual number of days the principal balance Is outstanding.
Ali Interest payable under ttlls loan fs computed using this method.
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
foregoing, Borrower may pay without penalty aN 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 Borrowers obligation to continue to make payments of accrued unpaid Interest. Rather, early
payments will reduce the principal balance due. 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 Lenders rights under this Agreement, and
Borrower will remain obOgated to pay any further amount owed to Lender. All written communications oonceming disputed amounts, inducting
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 Iimltations or as full satisfaction of a disputed amount must be mailed or delivered to: GRAYSTONE TOWER BANK,
112 Market Street Harrisburg, PA 17101.
LATE CHARGE. If a regularly scheduled interest payment is 20 days or more late, Borrower wilt be charged 10.000% of the regularly scheduled
payment or 5250.00, whichever is greater. If Lender demands payment of this loan, and Borrower does not pay the loan in full within 20 days
after Lenders demand, Borrower also will be charged either 10.000% of the sum of the unpaid prtndpal plus accrued unpaid intarost or'
;250.00, whchever Is groahr.
INTEREST AFTER DEFAULT. Upon default, inducting failure to pay upon final maturity, the Interest rate on this loan shalt be Increased by adding
a 2.000 percentage point margin ("Default Rate Margin"). The Default Rate Margin shall also apply to each succeeding interest rate change that
would have applied had there been no default. ff Judgment Is entered in connection with this Agreement, Interest will canflnue to accrue alter
the date of judgment at the rate in effect et the time Judgment is entered. However, in no event will the interest rate exceed the maximum
interest rate limitations under applicable law.
LENDER'8 RIGHT'S. Upon Lenders demand, Lender may, after giving such notices as required by applicable law, dedare the entire unpaid
prindpal balance under 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 cdlect this Agreement if Borrower does not pay. Borrower will
pay Lender that amount. This includes, subject to any limits under applicable law, Lenders reasonable attorneys' fees and Lenders legal
expenses, whether or not there is a lawsuit, inducting reasonable 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 WAVER. 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 federal law applicable to Lender and, to the extent not preempted by federal law, the
laws of the CommornroaRh of Pennsylvania without regard to its conflicts of law provisions. This Agreement has been accepted by Lender in
the Commonwealth of Pennsylvania.
CHOICE OF VENUE If there is a lawsuit, Borrower agrees upon Lenders request to submlt to the jurisdiction of the courts of Dauphin County,
Commonwealth of PennsyNanla. .
RIGHT OF SETOFF. To the extent permitted by appNceble law, Lender reserves a right of setoff in aN Borrowers acceunts with Lender (whether
checking, savings, or some other account). This inductee all accounts Borrower holds jointly with someone else and all accounts Borrower may
open in the future. However, this does not indude any lRA or Keogh accounts, or any trust accounts for which setoff woul ' 'fed b
law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indeb
and all such accounts. EXHIBIT
LINE OF CREDR. This Agreement evidences a revolving line of credit Advances under this Agreement may be reques
writing by Borrower or by an authorized person. All oral requests shall be conflrmed in v+ritlng on the day of the request, on
Lender. All communications, instructions, or directions by telephone or otherwise to Lender are to be directed to Lenders
,4..4
CHANGE IN TERMS AGREEMENT
Loan No: 4000004893 (COntinued) page 2
Borrower agrees to be liable for all sums either. (A) advanced in accordance with the instructions of an authorized person or (B) credked 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 Lender to this Agreement does
not waive Lenders right to strict performance of the obligation(s) as changed, nor oblate Lender to make any future change in terms. Nothing
in this Agreement will constitute a satisfaction of the obNgation(s). It is the Intention of Lender to retain as liable parties alt makers and
endorsers of the original obligation(s), including aocammadation 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
representatlon to Lender that the non-sigrung party consents to the changes end 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.
SUCCESSOR INTERESTS. The terms of this Agreement shall be binding upon Borrower, and upon Borrowers heirs, personal representatives,
successors, and assigns, and shall be enforceable by Lender and its sucxessors and assigns.
MISCELLANEOUS PROVISIONS. If any part of this Agreement cannot be enforced, this fact will not affect the rest of the Agreement. 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, 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 Lenders
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 dint and several.
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 GNEN UNDER SEAL AND R IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE
EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
BORROWER:
HOLLYWOOD STAURANT GROUP LLC
BY~ Seal)
Robert S. FogN n, Mem of Hollywood
Restaurant G up, LLC
BY~ ~ ~ Seal)
Steven T. Kyzer, Me of Hollywood Restaurant
Group, LLC
LENDER:
GRAYSTONE B/WI A DI ~ N G STONE TOWER BANK
X
Steven D. Butz, Vice President
usm rso u.s.R v.. s~sao.am cop. MrY,r nrril wusr, u,e 1w7. fow. N Wpiu Rrrwa. . M P•ICENlL~GfuCIG 1N-~m nay
Donald L. Rornfield, Eaq.
Rornfield and Benchoff, LLP
17 North Church Street
Waynesboro, PA 17268
(717) 762-8222
FAR 762-6544
don@kornfield.net
Atty. I.D. (k19242
GRAYSTONE BANK
vs.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
THE 9th JUDICIAL DISTRICT, PA.
CUMBERLAND COUNTY BRANCH
CIVIL ACTION -LAW
i ~,._.
STEVEN T. KYZER
Defendant No. pGQ (~ - ~ ~ ~~ ~ ! ~Y~
NOTICE OF FILING CONFESSION OF JUDGMENT
TO: Steven R. Kyzer
(x) Notice is hereby given that a Judgment in the above-captioned matter has been entered
against you in the amount of $88,903.21 on the ~ day of J~,~. , 201.
(x) A copy of all documents filed with the Prothonotary in support of this matter aze
enclosed.
r
Prothon tary
By
If you have any questions regazding this Notice, please contact the filing party:
Donald L. Kornfield, Esq.
Kornfield and Benchoff, LLP
17 North Church Street
Waynesboro, PA 17268
(717) 762-8222
NOTICE MAILED: ~\^ ,^ • ~Q , p2011
Prothonotazy