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Home My WebLink About11-0098 Donald L. Rornfield, Esq. Rornfield 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 vs. Plaintiff Of TNE~PROTHONOTARY 101 i .Jt~ "~ - 5 x;1`'1 I~~ 5 ! CU~'BE~LAt1D COUr~TY ~`~~~~SY~~'AP~±A IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT, PA. CUMBERLAND COUNTY BRANCH CIVIL ACTION -LAW KYZER-MESAROS, LLC Defendant No. p~,D ~ ~ _ ~ ~' ~1 yj (T~P.rN~ CONFESSION OF JUDGMENT PURSUANT TO Pa. RC.P. RULE 2951(bl 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 $339,432.58 Interest to 12/08/2010 10,992.03 Late charges 7,572.50 Prepayment 2%/60 months 6,788.65 Attorney fees 35,042.46 Total $399,828.22 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. FF, LLP By Datlald L. Ko field J Attorney f r D fendant Pursuant to Warrant of Attorney fined in Complaint Filed Hereinbefore ~{. ,~ a7. sa ~° a~ a s3b3 ~~ a~3 asp ,~ ~Vl~;~led 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 KYZER-MESAROS, LLC 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 Kyzer-Mesaros, LLC, a Pennsylvania limited liability company, with offices located at 532 Lucinda Lane, Mechanicsburg, Cumberland County, Pennsylvania. 3. 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 Property Management, LLC, which loan is in default. 4. The instant judgment is not being entered by confession against a natural person in connection with a consumer transaction. 5. The guaranty has not been assigned. 6. No judgment has been entered upon the guaranty in any jurisdiction. 7. Defendant is indebted to Plaintiffin the principal sum of $339,432.58, which amount represents the balance due Plaintiff pursuant to the Promissory Note signed by Hollywood Property Management, LLC dated February 28, 2008, together with interest and attorney's fees. 8. A true and correct copy of the Promissory Note to Plaintiff is attached hereto as Exhibit B and made a part hereof. 9. Defendant is indebted to Plaintiff as follows: Principal balance Interest to 12/08/2010 Late charges Prepayment 2%/60 months Attorney fees Total $339,432.58 10,992.03 7,572.50 6,788.65 35,042.46 (only fees incurred will be collected) $399,828.22 10. By reason of Defendant's guaranty to Plaintiff and Defendant's default, Plaintiff is entitled to judgment against Defendant in the sum of $399,828.22. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $399,828.22, together with interest from December 9, 2010, at the rate of $82.50 per diem, court costs and such other damages as may be available at law. I verify that the statements made in this Complaint are 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 By ~ ~ ~~ ~ ~ ,~%^ COMMERCIAL GUARANTY Borrower: HoNywood Property Management, LLC Lender: GRAYSTONE BANK • 400 Foratsr Street Capital Region Harrisburg, PA 17102 112 Market Street . Harrisburg, PA '17101 Guarantor: Kyser-Msearos, LLC 532 Lucinda Lane Mechanicsburg, PA 17055 CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For.good and valuable consideration, Guarantor absolutely and uncondRionally 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 end 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 ks order, on demand, in legal tender of the United States of America, in same-day funds, without set-off or deduction or counterclaim, and will otherwise perform Borrower's obligations under the Note and Related Documents. Under this Guaranty, Guarantor's liability is unlimited and Guarantor's obligations are continuing. INDEBTEDNESS. The word "Indebtedness" as used in this Guaranty means all of the principal amount outstanding from time to time and at any one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, reasonable attorneys' fees, arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired, that Borrower individually or collectively or interchangeably with others, owes or will owe Lender. 'Indebtedness" includes, without limkation, loans, advances, debts, overdraft indebtedness, credit card indebtedness, lease obligations, IiabilRiea and obligations under any interest rate protection agreements or foreigncurrency 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, eMend, modify, refinance, consolidate or substitute these debts, liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by their terms or acceleration; absolute or contingent; liquidated or unliquidated; determined or undetermined; direct or indirect; primary or secondary in nature or arising from a guaranty or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or non-negotiable instrument or writing; originated by Lender or another or others; barred or unenforceable against Borrower for any reason whatsoever; for any transactions that may be voidable for any reason (such as infancy, insanity, ultra 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 Guarartty shall not (unless specffically 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 2ER0 BALANCE FROM TIME TO TIME. DURATION OF GUARANTY. This Guaranty will take effect•when received by Lender wthout 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 ieceipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations •under this Guaranty shall have been performed in full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to Lender, by certified mail, at Lender's address listed above or such other place as Lender may designate in writing. Written revocation of this Guaranty will apply only to 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 pr 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, extensions, 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 or other legal representative may terminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect. Release of any other~guaraMOr or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this Guerenty. A revocation Lender receives from any orre or more Guarantors ahaU not affect the liability of any remaining Guarantors under this Guaranty. It is anticipated that fhrctuations may occur in the aggregate amount of the Indebtedness covered by this Guarenty, and Guarantor specifically acknowledges and agrees that reductions in the amount of the Indebtedness, even to zero dollars (50.001, shall not constitute a terminator of this Guaranty. This Guarenty Is binding upon Guarantor and Guarerttor'a heirs, successors and assigns so bng as any of the Indebtedness remains unpaid and even though the Indebtednsas may from time to time be zero dollars (SO:00). GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, ehher before or after any revocation hereof, without notice or demand and without lessening Guarantor's iab~7ity under this Guaranty, from time to tune: IA) prior to revocation as set forth above, to make one or more additional secured or unsecured loans to Borrower, to lease equfpmeM or other goods, to Borrower, or otherwise to extend additional credit to Borrower; IB) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for payment or other terms of the Indebtedness or any part of the Indebtedness, including increases and decreases of the rate of interest on the Indebtedness; extensions may be repeated and may be for longer than the original loan term; (C) to take and hold securty for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such security, with or without the substitution of new collateral; (D) to release, substtute, agree not to sue, or deal whh any one or more of Borcower'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 paymerrts and credits shall be made on the Indebtedness; (F) to apply such security and direct the order or manner of sale thereof, including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine; (G) to sell, transfer, assign or grant participations in all or any part of the fndebtedness; and (H) to east n or Guaranty in whole or in part. GUARANTOR'S REPRESENTATIONS AND •WARRANTIES. Guarantor represents and warrants to Lender that ( EXI"IIBIT agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Gu executed at Borrower's request and not at the request of Lender; ICI Guarantor has full power, right and authority (D) the provisions of this Guaranty do not conflict with or resu{t in a default under any agreement or other instrum COMMERCIAL GUARANTY• Loan No: 4-4887 (Continued} ~ . Page 2 and do~not resuh 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; (FI upon Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, and all such financial information which currently has been, and all future financial information which will be provided to. Lender is and will be true and correct in all material respects and fairly present Guarantor's financial condition as of the dates the financial information is provided; (G) no material adverse change has occurred in Guarantor's financial condtion 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 Ihigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or threatened; (Q 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 condhion. 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 arty information or documents acquired by Lender in the course of hs relationship whh Borrower. GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following: 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 a certified public accountant satisfactory to Lender. All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and certified by Guarantor as being true and correct. GUARANTOR'S WAIVERS. Except as prohibted by applicable law, Guarantor waives any right to require Lender (A) to continue lending money or to extend other credh to Borrower; (B) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection whh the Indebtedness or in connection with the creation of new or addhional loans or obligations; ICI to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor; (DI 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 ftom Borrower or to comply whh any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy whhin Lender's power; or (GI to commh any act or omission of any kind, or at any time, whh respect to any matter whetscever. Guarantor also waives any and ell 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; IBI 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 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 end 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 noY 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 whh Guarantor's full knowledge of its significance 'and consequericea 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 taw 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 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 insolverrt. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower, . through bankruptcy, by an assignment for the benefh 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 shell 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 fdlowing miscellaneous provisions are a part of this Guaranty: . Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the ateration or amendment. 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 whh the enforcement of this Guaranty. Lender may hire or pay COMMERCIAL GUARANTY Loan No: x-4887 (Continued) Page 3 someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs 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 injunctlonl, appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the court. Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the provisions of this Guaranty. Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. 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, Commonwealth of Pennsylvania. Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parol evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses, claims, damages, and costs (including Lender's attorneys' fees) suffered or incurred by Lender as a resuh 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 end 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" end "Guarantor" respectively shall mean all and any one or more of them. The words "Guarantor," "Borrower," and "Lender" include the heirs, successors, assigns, and transferees of each of them. If a court finds that any provision of this Guaranty is not valid or should not be enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of the prdvisions of this Guaranty even ii 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 net 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 guararrteed under this Guaranty. Notices. Unless otherwise provided by applicable law, any notice required to be. given under this Guaranty shall be given in wrting, and, except for revocation notices by Guarantor, shall be effective when actually delivered, when actually received by telefacsimile (unless. otherwise required bylaw), when deposted with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Guaranty. All revocation notices by Guarantor shall be in writing and shall be effective upon delivery to Lender as provided in the section of this Guaranty enthled "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 wrking end signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and Guarantor, shall constitute a waiver of any of Lender's rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Guaranty, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Successors and Assigns. The terms of this Guaranty shall be bihding 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. - CROSS COLLATERAU2E/CROS$ 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 defauk 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 shah 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 Property Management, 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 limhation Kyzer-Mesaros, LLC, 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 GAAYSTONE BANK, its successors and assigns. Note. The word "Note" means and includes without limitation all of Borrower's promissory notes and/or credit agreements evidencing Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of and substitutions for promissory notes or credit agreements. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. COMMERCIAL GUARANTY Loan No: 4-4$87 (COlltillued) ~ Page 4 CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER. RELATING TO ANY COLLATERAL •SECURING. THE INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN„ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS' DUE UNDER THIS GUARANTY. GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION .OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED 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: i By: ~~ LLCn M. ~ieaa~osl ~Il~em~f Kyzer-14rb1[~Gos, Steven T. Kyzet;JYJMfiber of Kyzer-Mesaros, lAiElI MOlM~M4 Vw. l.1R10.001 Coyr.IbYM fi"M,W OWYO",. N,. 1N7. 1000. Nlllyiu b„rv,l. • M i:Ww1YWWllElO.rC TF I1l0 PROMISSORY NOTE Borrower: Hollywood Property Management, LLC Lender: GRAYSTONE BANK 400 Forster Street Capital Region Harrisburg, PA 17102 112 Market Street - Harcisburg, PA 17101 • Principal Amount: 5350,000.00 Date of Note: February 28, 2008 PROMISE TO PAY. Hollywood Property Management, LLC ("Borrower") promises to pay to GRAYSTONE BANK ("Lender"), or order, in lawful money of the Untied States of America, the principal amount of Three Hundred Fifty Thousand &001100 Dollars (5350,000.OOj, together with . interest ort the unpaid principal balance from February 28, 2008, until paid in fu6. • PAYMENT. Subject to any payment changes resuhing from changes in the Index, Borcower will pay this ban in accordance with tfie folbwing payment schedule: Principal and interest are due and payable in 80 equal consecutive monthly inataltments of 52,912.58 each, commencing on March 28, 2008 and ending February 28, 2013 (payment based on a 300-month amortization). From the date hereof unLl February 28, 2013 ("Initial Fixed Rats Period") interest aha~ be faced at 8.75%. Thereafter, the interest rate shall be ra-negotiated to a new fixed rata offered by . Lander in its sole discretbn land agreed to by Borrower), or the rate shay revert to Graystons Bank's Prime Rate (as defined in Venable Interest Rats bsbw} plus 2.00%. After the In'ctial Fixed Rate Period and based on the aubsequsnt change in interest rate, the monthly payment shall be changed to an amount sufficient to amortn:e the unpaid principal balance over the rsmakcing amortization period of 240 months. Such payments shall begin March~28, 2013 and will continue until maturity. AB unpaid principal together with any unpaid interest and late charges ahaN be due and payable at maturhy, February 28, 201.8. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest; then to principal; then to any late charges; and then to any unpaid collection costs. The annual interest rate for this Note is computed on a 365!360 basis; that is, by applying the ratio of the annual interest rate over a year of 360 days, muhiplied by the outstanding principal balance, mukiplied 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 Lander irmy designate in writing. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an index which is Lender's Prime Rate (the "Index"). This is the rate Lender charges, or would charge, on 90-day unsecured loans to the most creditworthy corporate customers. This rate may or may not be the lowest rate available from Lender at any given time. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often then each day. Borrower understands that Lender may make loans based on other rates es well. The imerest 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 then 5.00096 per annum or more than the maximum rate allowed by applicable law. Whenever increases occur in the interest rate, Lender, et its option, may do one or more of the following: IAI increase Borrower's payments to ensure Borrower's loan will pay off by hs original final maturity date, IB} increase Borrower's payments to cover accruing interest, (CI increase the number of Borrower's payments, and (D) continue Borrower's payments at the same amount and increase Borrower's final payment. PREPAYMENT PENALTY. Upon prepayment of this Note, Lender is entitled to the folbwing prepayment penahy: A prepayment fee will be charged if the Note is prepaid, in whole or In part, during the faced rate period. The fee will be calculated at two percent 12%) of the principal amount prepaid. A prepayment fee wll not be charged on any amount propeid within any ban year from internally generated funds. Except for the foregoing, Borrower may pay aN or a portwn of the amount owed earlier than h is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, early payments will reduce the principal balance due and may result in Borrower's making fewer payments. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: GRAYSTONE BANK, 112 Market Street Harrisburg, PA 17101. LATE CHARGE. tf a payment is 15 days or more late, Borrower will be charged 10.000% of the regularly scheduled payment or 5250.00, whichever is greater. INTEREST AFTER DEFAULT: Upon defeuh, including failure to pay upon final maturity, the interest rate on this Note shall be increased by adding a 2.000 percentage point margin ("Defauh Rate Margin"). The Default Rate 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 whh this Note, interest will continue to accrue after the date of judgment at the rate in effect at the lima 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 evert of default ("Event of Default") under this Note: Payment Defauh. 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 model, any member withdraws 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 forfehure proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any credtor of Borrower or by any governmental agency against any toll c rin the loan. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is EXHIBIT forfehure proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and depo a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discreti reserve or bond for the dispute. . . PROMISSORY NOTE Loan No: 448E7 ~ (Continued) Page 2 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 ks option, may, but shall not be required to, permh the Guarantor's estate.to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in .doing so, cure any Event of Default. 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 defauk, other than a default in payment is curable end if Borrower has not been given a notice of a breach of the same provision of this Note within the .preceding twelve (12) months, h may be cured if Borrower, after receiving written notice from Lender demanding cure of such default: (1) cures the defauk within fifteen (15) days; or (2) if the cure requires more than fifteen (15) days, immediately initiates steps which Lender deems in lender's sole discretion to be sufficient to cure the defauh and thereaher continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. LENDER'S R16HTS. Upon defauh, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses, 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. Lander 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 Nota wiq be governed by federal law appflcable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Note has been accepted by lender in the Commonwealth of Pennsylvania. 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 whh Lender (whether checking, savings, or some other account). This includes aft'sccounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the eMent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts. SECURITY. All collateral les herein defined) is security for this Note end any renewals, extensions and modifications thereof, and the payment, performance and discharge of all other present or future indebtedness, obligations and undertakings (whether individual, jant, 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 afl 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 interest has been granted to Lender pursuanYto this Note, CROSS COLLATERAU2E/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 defauh and all outstanding amounts under the loans will be immediately due and payable in full. A defauh in one loan shall constitute a defauh in alt 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 writing, no parry who signs this Note, whether es 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 parry or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security imerest 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 enforceabilhy of any other provisions of this Nate. 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 ~Y LENDER RELATING TO ANY COLLATERAL SECURING. THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OFTEN PERCENT 110%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (8500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFlEO 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: 4-4887 (C011tlllu@d) Page 3 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: By: LENDER: GRAYSTONE BA I X Steven D. Butz, Vice President LA666 PI10 l~ndh6. Vr. 6.76.tO.G01 Co W. 116r1aJ fY1M,W 6NU6M,, Ilio. 1667, 1066. N ItlMr Rx,rr,a. -PA BeWwubICR1VL5D7D.fe 7M-1766 AN r 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 CIVIL ACTION -LAW KYZER-MESAROS, LLC Defendant No. ~~~ ~ - ~ ~s (~ ~~ ~ ~Y ~ NOTICE OF FILING CONFESSION OF JUDGMENT TO: Kyzer-Mesaros, LLC (x) Notice is hereby given that a Judgment in the above-captioned matter has been entered against you in the amount of $399,828.22 on the ~ day of ~ , 201 ~. (x) A copy of all documents filed with the Prothonotary in support of this matter are enclosed. oth tart' By If you have any questions regarding 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: ~. ~~ ~~ Prothonotary