HomeMy WebLinkAbout11-0099Donald L. Kornfield, Eaq.
Kornfield and Benchoff, LLP
17 North Church Street
Waynesboro, PA 17268
(?17) 762-8222
FAX 762-6544
don@kornfield.net
Atty. I.D. #19242
GRAYSTONE BANK
vs.
Plaintiff
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IN THE COURT OF COMMON PLEAS OF
THE 9th JUDICIAL DISTRICT, PA.
CUMBERLAND COUNTY BRANCH
CIVIL ACTION -LAW
STEVEN T. KYZER C( v,~ f ~rlN~
Defendant No. °~ ~ ~ ~ ~ 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 $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.
Attorney for Defendant Pursuant to Warrant of
Attorney Contained in Complaint Filed
Hereinbefore
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Donald L. Rornfield, Eaq.
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 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 Mazket
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.
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 Plaintiff to 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 Plaintiff in 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 $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 (only fees incurred will be collected)
Total $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.
OFF, LLP
By
Donald L.
Attorney f
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: Hollywood Property Management, LLC Lender: GRAYSTONE BANK
400 Forster Street Capital Region
Harrisburg, PA 17102 ~ 112 Market Street
Harrisburg, PA 17101
Guarantor: Stevan 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 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 limitation,
loans, advances, debts, overdraft indebtedness, credh card indebtedness, lease obligations, liabilities and obligations under any interest rate
protection agreements or foreign currency exchange agreements or commodity price protection agreements, other ob1'rgations, •and liabilities of
Borrower, and any present or future judgments against Borrower, future advances, loans or transactions that renew, extend, modify, refinance,
consolidate or substtute 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; joirrt or several or joint and several; evidenced by a negotiable or
non-negotiable instrument or writing; originated by Lender or another or others; barred or unenforceable against Borrower for any reason
whatsoever; for any transactions that may be voidable for any reason (such as infancy, insanity, ultra vires or.otherwise); and originated then
reduced or extinguished and than 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
shell 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 8E A 2ER0
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 Borcower, and will continue in full force until all the Indebtedness incurred or contracted before receipt by .Lender of
any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have
been pertormed in full. If Guarantor elects to revoke this Guaranty, GUerentor 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 end 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, end 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 th'e same manner in which Guarantor might have terminated it and with the same effect.
Release of any other guarantor or termination of any other guaranty of. the Indebtedness shall not affect the liability of Guarantor under this
Guaranty. A revocation Lender receives from any one or more Guarantors shall not affect the liability of any remaining Guarantors under this
Guaranty. It is antkipeted that fiuctuadona may occur in the aggregate amount of the indebtedness covered by this Guaranty, and Guarantor
specifically acknowledges and agrees that reductions to the amount of the Indebtedness, even to zero dollaro 100.00), shah not constttute•a
termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs, auccesaoro and assigns so long as any of the
Indebtedness remains unpatd and even though the Indebtedness may from time to time be zero dollars (00.001.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice or
demand and without lessening Guarantor's liability under this Guaranty, from time to time: (A) prior to revocation as set forth above, to make
one or more additional secured or:unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend
additional credit to 8orcower; 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 town term; iC) to take and hold security for the payment of
this Guaranty•or the Indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such security, with
or without the substitution of new collateral; (D) to release, substitute, agree not to sue, or deal with any one or more 'of 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
payments and credits shall be made on the Indebtedness; iF) to apply such security and direct the order or manner of sale thereof, including
without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion
may determine; (G) to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this
Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that EXHIBIT
agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this G
executed at Borcower's request and not at the request of Lender; (C) Guarantor has full power, right and autho '
ID) the provisions of this Guaranty do not conflict with or result in a defauh under any agreement or other instru
. COMMERCIAL GUARANTY •
Loan No: 4-4887 (Continued) page 2
and do not resuR in a violation of any law, regulation, court decree or order applicable to Guarantor; IE) 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; IF) upon Lender's request, Guarantor will provide to lender financial end credk information in form
acceptable to Lender; and all such financial information which currently has been, and all future financial information which will be provided to
Lender is and will be true and correct in all material respects and fairly present Guarantor's financial condition as of the dates the financial
information is provided; (G) no material adverse change has occurred in Guarantor's financial condition since the date of the most recent
financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's financial condition; (H)
no litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or
threatened; (I) Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and IJ) 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 FlNANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following:
Annual Statements. As soon as available, but in no event later then one-hundred-twenty (1201 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 wkh GAAP, applied on a consistent basis, and
certified by Guarantor as being true and corcect.
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; (C} 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 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 IGI to commit any
act or omission of any kind, or at any time, wkh 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
GUaraMOr'S subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of
rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (C) any disability or other defense of
Borrower, of any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other
than payment in full in legal tender, of the Indebtedness; (0) 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 limtations; 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 end 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 Guaranrtor'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 corwary to any applicable law or public policy, such waiver shall be
effective, only to the extent permitted by law or public policy.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender
(whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts
Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender
may apply the funds in ihe~e accounts to pay what Guarantor owes under the terms of this Guaranty. ' .
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, whether now existing or hereafter .
created, shall be superior to any claim.that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes
insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any
claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower,
through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to
the payment of the claims of both Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the Indebtedness.
Guarantor does hereby assign to Lender all claims which it may have or acquire against Borrower or against any assignee or trustee in
bankruptcy of Borrower; provided however, that such assignment shall be effective only far 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
and to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights
under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Guaranty. No aheration 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. '
COMMERCIAL GUARANTY
Loan No: 4-4887. (Continued) Page 3
Attorneys' Fees; Expenses.. Guarantor agrees to pay upon demand all of Lender's costs end ~e~penses, including Lender's reasonable
attorneys' fees and. lender's legal expenses, incurred in connection with the enforcement of this Guaranty. tender may hire or pay
someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of• such enforcement. Costs and expenses
include Lender's 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 es 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 Lander and, to tfie extent not preempted by federal law, the
laws of the Commonwealth of Pennsylvania without regard to its corrfGcts of law provisions.
Chotce of Venue. If there is a lawsuit, Guarantor agrees upon Lender's request to submh 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 pare/
evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses,
claims, damages, and costs (including Lender's attorneys' fees) suffered or incurred by Lender as a result of any breach by Guarantor of the
warranties, representations end 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" end "Guarantor"
respectively shall mean ell 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 hself 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, limbed liability companies, or similar entities, rc 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 ba given under this Guaranty shall be given in writing, and,
except for revocation notices by Guarantor, shall be effective when actually delivered, when actually received by telefacsimile (unless
otherwise required by law}, when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United
States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Guaranty.
All revocation notices by Guarantor shall be in writing and shall be effective upon delivery to Lender as provided in the section of this
Guaranty entRled "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 ell 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 pert 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 wRh 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 Asslgtta. 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.
Wehre Jury. Lsndsr 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-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 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 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 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 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 ae more particularly described in this Guaranty.
Lender. The word "Lender" means GRAYSTONE BANK, its successors end 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 whh all renewals of, extensions of, modifications of, refinancings of, consolidations
of end substitutions for promissory notes or credit agreements.
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
COMMERCIAL GUARANTY
Loan No: 4-4887 (Continued)
Page 4
agreements, guaranties, security agreements, mortgages, deeds of trust, "security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
" CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE ANO 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 110%) OF THE UNPAID
PRINCIPAL, BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS I$500)
ON WHICH JUDGMENT OR JUDGMENTS ONE OA 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 PAYMfNT 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
CONFES510N 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 THE GUARANTY AND AGREES TO ITS
TERMS. 1N ADDITION, EACH GUARANTOR UNDERSTANDS THAT THLS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT. THE GUARANTY WILL CONTINUE UNTIL TERMINATED MI 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 tS AND SHALL CONSTITUTE AND HAVE THE EFFECT
OF A SEALED INSTRUMENT ACCORDING TO LAW.
GUARANTOR:
X ~~ ISeal1 ~ •
Steven T. Kyzer
usa -110 ~~, v.. a.a.lo.o01 c.o,. wlr~a Iiw.w swoop., ~. 1M1, xoe. M Mynp M~,l. . M F.Wwulwltn4xl[tG.vc 711.17e6 1'11.7
PROMISSORY NOTE
BOrroWer: Hollywood Property Management, LLC Lender: GRAYSTONE BANK
400 Forster Street ~ Capital Region •
Harrisburg, PA 17102 112 Market Street
• ~ Harrisburg, PA 17101
Principal Amount: 8350,000.00 ~ 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 United States of America, the principal amount of Three Hundred Fifty Thousand >h OOI100 Dogars {$350,000.00), together with
intareat on the unpak! prhtcipat balance from February 28, 2008, until paid in fuU. ,
PAYMENT. Subject to any payment changes resulting from changes in the Index, Borrower will pay this loan in accordance with the following
payment schedule:
Principal and interest are due and payable in 80 equal consecutive monthly instaltmenta of $2,912.58 each, commencing on March 28,
2008 and ending February 28, 2013 (payment based on a 300-month amortzation). From the date hereof until February 28, 2013 1"Initial
Fixed Rate Pgrbd") Interest shall be faced at 8.75%. Thereafter, the interest rate shall be rs-negotiated to a new fixed rate offered by •
Lender in tts sole discrstbn (end agreed to by Borrower), or the rate shall revert to Graystone Bank's Prime Rate (as defined in Variable
Interest Rata bebw) plus 2.00%. After the Initial Fused Rate period and based on the subsequent change In interest rate, the monthly
payment shall be changed to an amount sufficient to amortae the unpaid principal balance over the remaining amortization period of 240
months. Such paymsrns shall begin March•28, 2013 and will continue until maturity. AU unpaid principal together with any unpaid interest
and late charges shat! be due and payable at maturity, February 28, 2018.
Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest; than to principal; then to
any late charges; and then to any unpaid colFection costs. The •annual irKerest 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, muRiplied 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
Lender may 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 wilt 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 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 then 5.00096 per annum
or more than the maximum rate allowed by applicable law. Whenever increases occur in the interest rate, Lender, at its option, may do one or
more of the following: IA) increase Borrower's payments to ensure Borrower's loan will pay off by its original final maturity date, IB) increase
Borrower's payments to cover accruing interest, IC) increase the number of Borrower's payments, and (DI 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 folowing prepayment penahy A prepayment fee will be
charged ff the Nota b prepaid, b whole or In part, during the fixed rate period. The fee will be calculated at two percent 12%) of the principal
amount prepaid. A prepayment fas wUl not be charged on any amount prepaid within any ban year from internally generated funds. Except for
the foregoing, Borrower may pay all or a portan of the amount owed earlier than k 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 wRh 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 15 days or more late, Borrower will be charged 10.000% of the regulary achaduled~payment or $250.00,
whichever is greater.
INTEREST AFTER DEFAULT: Upon defpuh, including failure to pay upon final maturity, the interest rate on this Note shall be increased by
adding a 2.000 percentage point margin ("Defauk Rate Margin"). The Default Rete Margin shall also apply to each succeeding interest rate
change that would have applied had there been no defauR. 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 defauh 1"Event of Defauh") 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 pertorm 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 et 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 medal, 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 forfekure proceedings, whether by judic'
repossession or any other method, by any creditor of Bdrrower or by any governmental agency against any col EXHIBIT
This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, t
not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is
forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and depos
a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretio
reserve or bond for the dispute. •
. PROMISSORY NOTE
Loan No: 4=4887 ~ (Continued)
Page 2
Events Affecting C;uarantor. 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, permit the Guarantor's estate.to
assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in .doing so, cure any Event of
Default.
Adverse Change. A material adverse change occurs in Borcower's financial condition, or Lender believes the prospect of payment or
performance of this Note"is impaired. -
Cure Provlsiona. 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, it may be cured if Borrower, after receiving written notice from
Lender demanding cure of such default: (1) cures the default within fifteen (15) days; or (21 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 defauk and thereafter
continues and completes all reasonable end necessary steps sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon defauk, Lender may, after giving such notices es required by applicable law, declare the entire unpaid principal
balance under this Note and'aU 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 lawsuit, including reasonable attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), and appeals. If not prohibfted 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 will be governed by federal law applicable to Lander and, to the extent not preempted by federal law, the laws of
the Commonwealth of Pennsyhvania 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,
Commonweahh of Pennsylvania. •
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether
checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may
open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibhed 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, and the payment,
performance and discharge of all other present or future indebtedness, obligations and undertakings (whether individual, joint, several, direct,
comingent or otherwise) of the Borrower to or for the benefit of Lender, whether arising directly to Lender under this Note or under any other
agreement, promissory note or undertakings now existing or hereinafter entered into by the Borrower to the Lender. The term "Collateral"
includes all tangible and intangible property (i) described in any mortgage, pledge, assignment or other security document separately executed in
favor of Lender, and (ii) in which a security interest has been granted to Lender pursuant to this Note.
CROSS COLLATERALI2E/CROSS DEFAULT. This loan will be cross-collateralized/cross-defauked with alt 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 aU 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.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives,
successors and assigns, and shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Lender may delay or forgo
enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses
this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this
Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether 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 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 tender may modify
this loan without the consent of or notice to anyone other than the parry 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, h 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 j3Y 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 (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 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 8Y INDEPENDENT LEGAL COUNSEL.
' PROMISSORY NOTE
loan No: 44887 (Continued) 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:
HOLLYWOOD~/PLR_OPERTY MANAGEMENT, LLC
Br: ~~"/ ~~i (Beall By:
Rohe t oge
Management, LLC
LENDER:
GRAYSTONE BA
X
Steven D. Butz, Vice President
lA\E\ P\0 WNN\. Vp. \.1670.001 Cep. 111,I,na FIn,nNY \W\PnA Inn. IM7, 1006 N NI\Ils NPnmrM. - PA &Weuh,\CFl6PL1010.FC 711-17\\ PFi
r
Donald L. Kornfield, Esq.
Kornfield and Henohoff, 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
STEVEN T. KYZER ~y~ V~` ~ ~e?'(/l/~
Defendant No. ~b ~ ~- ~ ~ 1.
NOTICE OF FILING CONFESSION OF JUDGMENT
TO: Steven T. Kyzer
(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 ~ , 201Q.
(x) A copy of all documents filed with the Prothonotary in support of this matter are
enclosed.
Prothonotary
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: `~~ ~~tt
Prothonotary