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HomeMy WebLinkAbout11-5756`:_ ?wM? 1lJ iiVf? 2011 JUL 19 PM 1 v 3 c,UMBERLANDANIA COUNTY METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellygmette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff V. JEFFREY R. GETTYS and TAMMY D. GETTYS Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. t 1- S, S (4 by l CONFESSION OF JUDGMENT Pursuant to the authority contained in the Confession of Judgment clause in the Note and Guaranty, copies of which are attached to the Complaint filed in this action, I appear for the Defendants and confess judgment in favor of Plaintiff and against Defendants as follows: 0 + $07-56 Pd any Cif /Wya6 (Val yvla;W Principal: $15,796.40 Interest through 7/14/11: $770.28 Late Charges through 7/14/11: $25.96 Attorneys Commission (10%): $1,650.00 TOTAL $18,242.64* *Continue to accrue until paid. Interest at the per diem rate of $3.18, attorney fees and costs of this action continue to accrue. Respectfully submitted, Heather Z. Kel y, Esquire I.D. No. 86291 Appearing herein for Plaintiff Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Date: July 18, 2011 i"1LErol-t FF 0, r J t t.. tOWA 0 COUNTY METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkelly c ,mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce IN THE COURT OF COMMON PLEAS OF Bank/Harrisburg, N.A. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : DOCKET NO. '' _ ?''' ' ?! JEFFREY R. GETTYS and TAMMY D. GETTYS Defendants COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, this 18th day of July, 2011, Plaintiff, Metro Bank, f/k/a Commerce Bank/Harrisburg, N.A. ("Plaintiff'), by its attorneys files the following Complaint in Confession of Judgment: 1. Plaintiff is a Pennsylvania banking institution with an address at 3801 Paxton Street, Harrisburg, PA 17111. 2. Defendants are Jeffrey R. Gettys and Tammy D. Gettys, husband and wife, adult individuals with an address of 87 Hoover Road, Carlisle, PA 17013 ("Defendants") 3. On September 17, 2008, Mountain Aire Mechanical Contracting, Inc. ("Mountain Aire") executed a Promissory Note in the principal amount of Twenty-Six Thousand Dollars ($26,000.00) in favor of Plaintiff. A true and correct copy of the Promissory Note is attached hereto as Exhibit "A" and is referred to as the "Note." 4. Pursuant to the terms of Commercial Guarantees executed on September 17, 2008, Defendants guaranteed Mountain Aire's obligations under the Note. True and correct copies of the Commercial Guarantees are attached hereto as Exhibit "B" and are referred to as the "Guarantees." 5. Mountain Aire has defaulted under the Note by failing to make payment when due. 6. By correspondence dated June 29, 2011, Plaintiff demanded payment in full from Defendants. A true and correct copy of the June 29, 2011 correspondence is attached hereto as Exhibit "C." 7. Defendants have failed to repay the indebtedness in response to the June 29, 2011 demand. 8. The Note and Guarantees were executed in connection with a commercial transaction. 9. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 10. The Note and Guarantees have not been assigned. 11. Judgment has not been entered on the Note or Guarantees in any jurisdiction. 12. The warrants of attorney appearing in the Guarantees are less than twenty (20) years old. 13. Plaintiff has taken all actions or complied with all conditions precedent in the filing of this action. 14. The entire remaining indebtedness evidenced by the Note and Guarantees is $18,242.64 and is computed as follows: Principal: $15,796.40 Interest through 7/14/11: $770.28 Late Charges through 7/14/11: $25.96 Attorneys Commission (10%): *$1,650.00 TOTAL $18,242.64 * Only reasonable attorneys fees will be collected by the attorney. Interest at the per diem rate of $3.18 attorney fees and costs of this action continue to accrue. WHEREFORE, on the basis of the confession of judgment provisions contained in the Guarantees, Plaintiff demands judgment in its favor and against Defendants, jointly and severally, in the amount of $18.242.64, plus all interest which continues to accrue at the rate of $3.18 per day from July 14, 2011 forward, as authorized by Pennsylvania law, together with costs of suit. Respectfully submitted, Heather Z. Kelly, squire I.D. No. 86291 Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: July 18, 2011 VERIFICATION I, John T. Robertson, have read the foregoing Complaint in Confession of Judgment and verify that the facts set forth therein are true and correct according to the best of my knowledge, information and belief and that I am authorized to execute this Verification on behalf of the bank. I understand that any false statement made herein is subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. ' - )2k-7-- 4ve oberts on ident -Asset Recovery Manager Metro Bank Dated: q1I ell v?r PROMISSORY NOTE ) COPYJW Principal Loan Date Maturity Loan No Call i Coll Account Officer Initials _ $26,000.00 09-17-2008 09-17-2013 3679888 2116 References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing - * " has been omitted due to text length limitations. Borrower: Mountain Aire Mechanical Contracting, Inc. 87 Hoover Road Carlisle, PA 17013 Lender: COMMERCE BANKMARRISBURG N.A. COMMERCIAL BUSINESS DEPARTMENT 3801 PAXTON STREET HARRISBURG, PA 17111 (8881 937-0004 Principal Amount: $26,000.00 Interest Rate: 7.250% _ Date of Note, September 17, 2008 PROMISE TO PAY. Mountain Aire Mechanical Contracting, Inc. 1"Borrower") promises to pay to COMMERCE BANWHARRISBURG N.A. ("Lender"), or order, In lawful money of the United States of America, the principal amount of Twenty-six Thousand & 001100 Dollars (426,000.00), together with Interest at the rate of 7.250% per annum on the unpaid principal balance from September 17, 2008, until paid In full. The Interest rate may change under the terms and conditions of the "INTEREST AFTER DEFAULT" section. PAYMENT. Borrower will pay this loan in 60 payments of $519.13 each payment. Borrower's first payment is due October 17, 2008, and all subsequent payments are due on the same day of each month after that. -Borrower's final payment will be due on September IT, 2013,-and will be for all principal and all accrued interest not yet paid. Payments include principal and Interest. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest; then to principal; then to any unpaid collection costs: and then to any late charges. The annual interest rate for this Note Is computed on a 365/360 basis; that is, by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. PREPAYMENT PENALTY. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Upon prepayment of this Note, Lender Is entitled to the following prepayment penalty: Prepayment of any amount of the principal sum shall be subject to a penalty charge of 5% during the first year of amortization and declining 1% per year thereafter to par. Except for the foregoing, Borrower may pay all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of 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: COMMERCE BANKIHARRISBURG N.A., LOAN SERVICING, PO BOX 4999 HARRISBURG, PA 17111-0999. LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by 4.000 percentage points. If judgment is entered in connection with this Note, interest will continue to accrue after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. DEFAULT. Each of the following shall constitute an event of default V vent'bf Default") under this Note: Payment Default. Borrower fails to make any payment when due under this Note. Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. - Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Insolvency. The dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. Change In Ownership. Any change in ownership of twenty-five percent (25%) or more of the common stock of Borrower. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired. Insecurity. Lender in good faith believes itself insecure. Cure Provisions. If any default, other than a default in payment is curable and if Borrower has not been given a notice of a breach of the PROMISSORY NOTE Loan No: 3679888 (Continued) Page 2 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 05) 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 default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. LENDER'S RIGHTS. Upon default, 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. GOVERNING LAW. This Note 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. This Note has been accepted by Lender in the Commonwealth of Pennsylvania. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly 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 extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts. COLLATERAL. Borrower acknowledges this Note is secured by the following collateral described in the security instrument listed herein: a Mortgage dated September 17, 2008, to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania. POST CLOSING COMPLIANCE. Borrower agrees to execute, re-execute, cause a Guarantor(s) or other third party(ies) involved in the loan transaction to execute and/or re-execute and to deliver to Lender or its legal counsel, as may be deemed appropriate, any document or instrument signed in connection with the Loan which was incorrectly drafted and/or signed, as well as any document or instrument which should have been signed at or prior to the closing of the Loan, but which was not so signed and delivered. Borrower agrees to comply with any written request by Lender within ten (10) days after receipt by Borrower of such request. Failure to Borrower to so comply shall, at the option of Lender, upon notice to Borrower, constitute an event of default under the Loan. 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. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if we report any inaccurate information about your account(s) to a consumer reporting agency. Your written notice describing the specific inaccuracy(ies) should be sent to us at the following address: COMMERCE BANK/HARRISBURG N.A. LOAN SERVICING 3801 PAXTON STREET HARRISBURG, PA 17111. 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 as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determiKed to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE QF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PROMISSORY NOTE Loan No: 3679888 (Continued) Page 3 PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: MOUNTAIN AIRE MECHANICAL CONTRACTING, INC. rr, By: k (Seal) Jeffrey s, President o Mountain Aire Mechan I tracting, Inc. ISE..0 LGSM. Vv. 5.60.00.001 C....... F.- SaWl- Inc. 1667. SODS. 6M lOgh„ A-- VA S:1CMLK10S0.{C TH-27619 M-1. Xo op 23/ COMMERCIAL GUARANTY Principal Loan Date Maturity Loan No Call I Coll Account Officer Initials 2116 References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing "' • • " has been omitted due to text length limitations. Borrower: Mountain Aire Mechanical Contracting, Inc. Lender: COMMERCE BANK/HARRISBURG N A 87 Hoover Road . . COMMERCIAL BUSINESS DEPARTMENT Carlisle, PA 17013 3801 PAXTON STREET ^ HARRISBURG, 1, . PA 17111 ? .t . j / (8881 937-0004 OP Guarantor: Jeffrey R. Gettys ` ? W[ ( ` ` 87 Hoover Road Carlisle, PA 17013 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 all Borrower's obligations under the Note and the Related Documents. This is a guaranty of payment and performance and not of collection, so Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against anyone else obligated to pay the Indebtedness or against any collateral securing the Indebtedness, this Guaranty or any other guaranty-of-the- fndebtedness. -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, credit card indebtedness, lease obligations, liabilities and obligations under any interest rate protection agreements or foreign currency exchange agreements or commodity price protection agreements, other obligations, and liabilities of Borrower, and any present or future judgments against Borrower, future advances, loans or transactions that renew, extend, modify, refinance, consolidate or substitute these debts, 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 Isuch as infancy, insanity, ultra vires or otherwise); and originated then reduced or extinguished and then afterwards increased or reinstated. If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties shall be cumulative. This Guaranty shalt not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties. Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties. CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO TIME. DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any notice to Guarantor or to Borrower, and will continue in full force until all the Indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied 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 or not due and which later becomes absolute, liquidated, determined or due. For this purpose and without limitation, "new Indebtedness" does not include all or part of the Indebtedness that is: incurred by Borrower prior to revocation; incurred under a commitment that became binding before revocation; any renewals, extensions, 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 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 anticipated that fluctuations may occur in the aggregate amount of the Indebtedness covered by this Guaranty, and Guarantor specifically acknowledges and agrees that reductions in the amount of the Indebtedness, even to zero dollars ($0.00), shall not constitute a termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and assigns so long as any of the Indebtedness remains unpaid and even though the Indebtedness may from time to time be zero dollars ($0.00). 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 Borrower; (B) 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 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 Borrower's sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose; (E) to determine how, when and what application of payments and credits shall 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 Indebtedness; and (H) to assign or transfer this COMMERCIAL GUARANTY Loan No: 3679888 (Continued) Guaranty in whole or in part. Page 2 GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) no representations or agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this Guaranty is executed at Borrower's request and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into this Guaranty; (0) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has not and will not, without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein; (F) upon Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, 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; (1) Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and (J) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or circumstances which might in any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that. Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower. GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following: Annual Statements. As soon as available, but,.in no event later than one-hundred-twenty (120) days after the end of each fiscal year, Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor. Tax Returns. As soon as available, but in no event later than one-hundred-twenty (120) days after the applicable filing date for the tax reporting period ended;` Federal and"other goveritment&tax returris, prepared by Guaiantdr. , 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 prohibited by applicable law, Guarantor waives any right to require Lender (Af to continue lending money or to extend. other credit to Borrower; 1IB) . to make any presentment, protest, demand, or notice of any kind, ,including notice of any nonpayment of the..indebtedness or of any, nocipayment:related to any collateraf, or notice of any action or nonacfion•on the part of Borrower, Lender, any surety, endorser, or other guara?aio{ in, connecton 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; (D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give notice of the terms, time, and place, of°any public or private safe of personal property security held by Lender from Borrower or to''comply with any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lender's power; or (G) to commit any act or omission of any kind, or at any time„with respect to any matter whatsoever. Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not fifnited to, any rights or defenses arising by reason of (A) any "one action" or "anti-deficiency" law or any other law, which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (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; (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 (F) any defenses given to guarantors at law or in equity other than actual payment and performance of the Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise, or by any third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty. Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both. GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the extent permitted by law or public policy. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open in the future. However, this does not frilude an.1 IRA-or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Guarantor authorizes Lender, to the extent peimitted''appfica6le law, to hold these funds if there is a default, and Lender may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, whether now existing or hereafter created, shall be superior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the event of insolvency 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 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 egrets, and Lender is hereby authorized, it i name of Guarantor, from time to time to file f; ;ing statements and continuation statements and to execute documents and to take suc. Cher actions as Lender deems necessary or apprc,• ite to perfect, preserve and enforce its rights under this Guaranty. COMMERCIAL GUARANTY Loan No: 3679888 (Continued) MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty: Page 3 Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration 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 with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. 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 injunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the court. Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are 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. 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 andparol--- evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses, ctaims, 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 and agreements of this paragraph. Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectively shall mean all and any one or more of them. The words "Guarantor," "Borrower," and "tender" include the heirs, successors, assigns, and transferees of each of them. If a court finds that any provision of this &uaranty 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 provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid or unenforceable. If any one or more of Borrower or Guarantor are corporations, partnerships, limited liability companies, or similar entities, it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on their behalf, and any indebtedness made or created in reliance !upon Ibe, prpfessed exercise of such powers shall be guaranteed under this Guaranty. Notices. Unless otherwise provided by applicable law, any notice required to be given under this Guaranty shall be given in writing, and, except for revocation` notices :by Guarantor, shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise req iced by taw), 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 entitled "DURATION OF GUARANTY." Any party may change its address for notices under this Guaranty by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicable law, if there is more than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Guaranty shall not prejudice or 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 binding upon Guarantor, and upon Guarantor's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. 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 and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means Mountain Aire Mechanical Contracting, Inc. 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 Jeffrey R. Gettys, 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 COMMERCE BANK/HARRISBURG N.A., 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 ail promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE COMMERCIAL GUARANTY Loan No: 3679888 (Continued) Page 4 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 SEPTEMBER 17, 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: X '(Seat) Jeffrey G INDIVIDUAL ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA ) ) SS COUNTY OF On this, the t day of -'20 before me ws l ` O P? ( t'- the undersigned Notar Public, personally appeared Jeffrey R. Gettys, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he or she executed the same for the purposes therein contained. In witness whereof, I hereunto t"RW?aftSYLVANIA NotarW Seal Cassie O. Price, Notary Public Swatara Twp., Dauphln County My Commission Expires March 30, 2011 Notary Public in and for the State of Member, Pennsylvania Association of Notaries -- - LM1M Mq L h,. Vw. 1. W.== Cop. Mrlrtl lY,onoW SoWUM4 Ine. 1 W, 2=. M NOI, Ao • PA S:TCM\L/L\SMK TP"71I0M41S DISCLOL RE FOR CONFESSION OF A GMENT Principal Loan Date Maturity Loan No Can / Colt Account Officer Initials $26,000.00 09-17-2008 09-17-2013 3679888 2116 References in the boxes above are for Lender's use only and co not amn me appucadnity UT cnis ?UUUmtln1 LU Oily POI uuuiai lUOn V1 iLVni. Any item above containing has been omitted due to text length limitations. Borrower: Mountain Aire Mechanical Contracting, Inc. Lender: COMMERCE BANK/HARRISBURG N.A. 87 Hoover Road COMMERCIAL BUSINESS DEPARTMENT Carlisle, PA 17013 3801 PAXTON STREET HARRISBURG, PA 17111 (888) 937-0004 Declarant: Jeffrey R. Gettys 87 Hoover Road Carlisle, PA 17013 DISCLOSURE FOR CONFESSION OF JUDGMENT I AM EXECUTING, THIS I-T?n DAY OF V-Yi1/lX. {i1' 20-CR, A GUARANTY FOR AN UNLIMITED AMOUNT. A. I UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE GUARANTY, WITHOUT ADVANCE NOTICE TO ME AND WITHOUT OFFERING ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST ME UNDER THE GUARANTY, I AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S NT ING JUDGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INITIALS: B. 1 FURTH UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT; 1 AM KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND [.EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMEN IN//' Y MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY ADVANCE NOTICE. INITIALS: :.:::<t?: C. AFTER VING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, I REPRESENT THAT: INITIALS 1. 1 WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY. 01 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY TO MY ATTENTION. D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS $10,000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN I INITIALED AND SIGNED IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNING. THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. DECLARANT: X r' (Seal) Jeffr R. Cro W!R PRO L?NnO• Vr. 5.10.OO.OW C- --, PY,r,aiP 6olumnR Ino. 1 PST. Z . A\ Rips RrwG. -PA S:ICPRLPLIOSO.Pc TR-27m. wIS COMMERCIAL GUARANTY Principal Loan Date Maturity Loan No call colt Account Officer Initials 2116 References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing """'" has been omitted due to text length limitations. ME Borrower: Mountain Aire Mechanical Contractindfiselin c? Py; er: COMMERCEBANK/HARRISBURG N.A. 87 Hoover Road COMMERCIAL BUSINESUSINESS DEPAR RTMENT Carlisle, PA 17013 3801 PAXTON STREET HARRISBURG, PA 17111 (888) 937-0004 Guarantor: Tammy D. Gettys 87 Hoover Road Carlisle, PA 17013 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 all Borrower's obligations under the Note and the Related Documents. This is a guaranty of payment and performance and not of collection, so Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against anyone else obligated to pay the Indebtedness or against any 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, credit card indebtedness, lease obligations, liabilities and obligations under any interest rate protection agreements or foreign currency exchange agreements or commodity price protection agreements, other obligations, and liabilities of Borrower, and any present or future judgments against Borrower, future advances, loans or transactions that renew, extend, modify, refinance, consolidate or substitute these debts, 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 vires or otherwise); and originated then reduced or extinguished and then afterwards increased or reinstated. If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties. Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties. CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO TIME. DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any notice to Guarantor or to Borrower, and will continue in full force until all the Indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied 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 or not due and which later becomes absolute, liquidated, determined or due. For this purpose and without limitation, "new Indebtedness" does not include all or part of the Indebtedness that is: incurred by Borrower prior to revocation; incurred under a commitment that became binding before revocation; any renewals, extensions, 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 some 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 anticipated that fluctuations may occur in the aggregate amount of the Indebtedness covered by this Guaranty, and Guarantor specifically acknowledges and agrees that reductions in the amount of the Indebtedness, even to zero dollars ($0.00), shall not constitute a termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and assigns so long as any of the Indebtedness remains unpaid and even though the Indebtedness may from time to time be zero dollars ($0.00). 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 Borrower; (B) 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 security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such security, with or without the substitution of new collateral; ID) to release, substitute, agree not to sue, or deal with any one or more of Borrower's sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose; (E) to determine how, when and what application of payments and credits shall 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; IG) to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this COMMERCIAL GUARANTY Loan No: 3679888 (Continued) Guaranty in whole or in part. Page 2 GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) no representations or agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this Guaranty is executed at Borrower's request and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into this Guaranty; (D) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has not and will not, without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein; (F) upon Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, 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 (J) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or circumstances which might in any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower. GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish- Lender with the following: Annual Statements. As soon as available, but in no event later than one-hundred-twenty (120) days after the end of each fiscal year, Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor. Tax Returns. As soon as available, but in no event later than one-hundred-twenty 0 20) days after the applicable filing date for the tax reporting period ended-; Federal and other governmental tax returns, prepared by Guarantor. All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and certified by Guarantor as being true and correct. GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender .(A}. to continue lending money or to extend other credit 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 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; (D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lender's power; or IG) to commit any act or omission of any kind, or at any time, with respect to,ony matter whatsoever. Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any rights or defenses arising by reason of (A) any "one action" or "anti-deficiency" law or any other law which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (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; (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 (F) any defenses given to guarantors at law or in equity other than actual payment and performance of the Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise, or by any third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty. Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any - claim of setoff; counterclaim, -counter demand, recoupment -or -similar-rtght, -whether much claim, demand or right may be-asserted--by the Borrower, the Guarantor, or both. GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the extent permitted by law or public policy. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds 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 r- Guarantor agrees that the Indebtedness, whether now existing or hereafter created, shall be superior to any claim that Guarantor mayxnow: 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 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 ' i name of Guarantor, from time to time to file fir -ing statements and continuation statements and to execute documents and to take suc ner actions as Lender deems necessary or appro. :e to perfect, preserve and enforce its rights under this Guaranty. COMMERCIAL GUARANTY Loan No: 3679888 (Continued) Page 3 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 alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration 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 with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. 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 injunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the court. Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are 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. 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 result of any breach by Guarantor of the warranties, representations and agreements of this paragraph. Interpretation. In all cases where. there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectively shall mean all and' ahy one or more of them. The words "Guarantor," "Borrower," and 'll-ender" 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 provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid or unenforceable. If any one or more of Borrower or Guarantor are corporations, partnerships, limited liability companies, or similar entities, it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on their behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Notices. Unless otherwise provided by applicable law, any notice required to be given under this Guaranty shall be given in writing, and, except for revocation notices by'Guarantor, shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required` by law), when deposited 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 entitled "DURATION OF GUARANTY." Any party may change its address for notices under this Guaranty by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicable law, if there is more than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Guaranty shall not prejudice or 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 binding upon Guarantor, and upon Guarantor's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. 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 and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means Mountain Aire Mechanical Contracting, Inc. 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 Tammy O. Gettys, 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 COMMERCE SANK/HARRISBURG N.A., 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. CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE COMMERCIAL GUARANTY Loan No: 3679888 (Continued) Page4 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 EXECUTIOWAND 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, SEPTEMBER 17, 2008. THIS GUARANTY IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS GUARANTY 1S AND SHALL CONSTITUTE AND HAVE-THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. GUARANTOR: X ' {Beall Tammy D. s / INDIVIDUAL ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA ) r^ ,, 16S COUNTY OF Y ?(/ ) On this, the day of f?^ '20 U before me rI&S the undersigned Nota y Public, personally appeared Tammy D. Gettys, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he or she executed the same for the purposes therein contained. In witness whereof, I hereunto set my hand and official seal. COMMONWEALTH OF P NSYLVANIA Notarial Seal Cassie O. Price, Notary Public Swatara Twp.. Dauphin Canty My Comniaslon Expkes March 30.2011 Member, Pennsylvania AssodadOn of Notaries Notary Public in and for the State of _ . _ _ WU1 NIG L" inq. V". 5.4MOIL W C- M"I?N Pn",.W S.kN-a Ina M7 WN. M L?O Awl y; M S:?OIILK1 2100 TI.Vfl* M. 11 DISCLOL RE FOR CONFESSION OF A GMENT Principal Loan Date Maturity Loan No Call Coll Account Officer Initials $26,000.00 1 09-17-2008 09-17-2013 3679888 2116 ? .? References in the boxes above are for Lender's use only and do not limit the app icaomty or inls aocUlncrn LV ally Pal LI-01 -al all Any item above containing has been omitted due to text length limitations. Borrower: Mountain Aire Mechanical Contracting, Inc. Lender: COMMERCE BANK/HARRISBURG N.A. 87 Hoover Road COMMERCIAL BUSINESS DEPARTMENT Carlisle, PA 17013 3801 PAXTON STREET HARRISBURG, PA 17111 (888) 937-0004 Declarant: Tammy D, Gettys 87 Hoover Road Carlisle, PA 17013 DISCLOSURE FOR CONFESSION OF JUDGMENT I AM EXECUTING, THIS j" DAY OF ?{?}?t.1'?" l li?X?( 20LK, A GUARANTY FOR AN UNLIMITED AMOUNT. A. I UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE GUARANTY, WITHOUT ADVANCE NOTICE TO ME AND WITHOUT OFFERING ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST ME UNDER THE GUARANTY, I AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S tNTERI?Iq AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INITIALS: B. I FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, I AM KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENTiLN ANY PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY ADVANCE NOTICE. INITIALS: '.4:ii: C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, I REPRESENT THAT: INITIALS Y 1. 1 WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY. f 0 rc- 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY 71 TO MY ATTENTION. D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS $10,000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN I INITIALED AND SIGNED IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNING. THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. DECLARANT: i (Seal) TamnirD. G 1AM m Lo d". Vw. S.?O.W.06T Cop. 1-1-1 l%-" 11-o "o, Fo. 1.57. m . All pigl- P.POrvM. - PA S:1cNUPL%DXl./C TII-278111 PA-19 G?XI?B ?T 00000000 METRO BANK 3801 Paxton Street 888.937.0004 Harrisburg, PA 17111 mymetrobandu=29, 2011 VIA REGULAR AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED Mountain Aire Mechanical Contracting, Inc. 87 Hoover Rd. Carlisle, PA 17013 Jeffrey R. Gettys 87 Hoover Rd. Carlisle, PA 17013 Tammy Gettys 87 Hoover Rd. Carlisle, PA 17013 Re: Indebtedness of Mountain Aire Mechanical Contracting, Inc. ("Borrower") to Metro Bank ("Bank") as guarantied by Jeffrey R. Gettys and Tammy Gettys (collectively, the "Guarantors") Dear Mr. and Mrs.: Responsibility for the loan arrangements between the Bank and the Borrower has been transferred. All communications from the Borrower and/or Guarantors to the Bank are to be addressed to Melissa Auman, Commercial Asset Recovery Specialist, P O Box 4999, Harrisburg PA 17111, until further written notice from the Bank. Reference is made to the Promissory Note of the Borrower in the original principal amount of $26,000.00, dated 09/17/08 and payable to the order of Metro Bank The Borrower is in default under the Term Note in that the Borrower has failed to, among other things, make payments when due (the "Term Note Default"). This letter constitutes formal notice to the Borrower and Guarantors of the occurrence of the Term Note Default. Effective immediately, the Bank has elected to increase the rate of interest charged on the unpaid principal balance of the Term Note to the default rate of interest provided for in the Term Note, which the interest rate due and payable under the Term Note plus 4.00% per annum (the "Term Note Default Interest Rate"). The Borrower may continue to receive invoices for payments under the Term Note that do not reflect this change in interest rate. The failure of the Bank to forward invoices to the Borrower reflecting payments at the Term Note Default Interest Rate is in no event a waiver of the imposition by the Bank of the Term Note Default Interest Rate under the Term Note as of the date set forth herein. As a result of the Borrower's default, the Bank has elected to exercise its option to declare the entire unpaid principal balance of the Promissory Note and all accrued and unpaid interest to be immediately due and payable. As of June 29, 2011, there is unpaid due and owing to the Bank under the Promissory Note the amount of $16,544.92. Demand is hereby made for the immediate payment in full of all amounts which are due and which may become due under the Promissory Note. The balance due under the Term Note may increase or decrease as a result of the receipt of payments and the proceeds of collateral securing the Term Note and the accrual of interest, late charges, costs of collection and other fees, costs and expenses. Therefore, immediately prior to remitting payment, please contact Melissa Auman at (717) 412-6317 to obtain final payoff amounts and remittance instructions. Nothing contained in this letter constitutes a waiver or release of any of the terms or provisions of the Term Note, The Demand Note or of any and all other notes, instruments or agreements between the Bank and the Borrower and/or Guarantors (the "Loan Documents"). The Bank reserves all rights and remedies available to it under the Loan Documents and applicable law, all of which are expressly hereby reserved. No discussions between the Bank and the Borrower and/or Guarantors concerning this notification, other loan relationships between the Bank and the Borrower and/or Guarantors, or any other matter shall imply an agreement on the part of the Bank to waive any of its rights and remedies or to forbear from taking any action authorized by the Loan Documents or applicable law, whether or not such discussions may be continuing. Any communications with any representative of the Bank, whether oral or written, will be mere discussions only and will not in any way commit or be binding upon the Bank unless reduced to a writing signed by an authorized officer of the Bank. Such communications will not represent any course of dealing, and in no manner shall you rely in any way on any such discussions unless such communications are reduced to a writing signed by an authorized officer of the Bank. The acceptance of any partial payment of any of the obligations of the Borrower and/or Guarantors to the Bank shall not be deemed a waiver or limitation of any of the Bank's rights reserved herein as to the full amount of any unpaid balance. Any delay or forbearance by the Bank in the enforcement or pursuit of any of its rights and remedies under the Loan Documents or applicable law shall not constitute a waiver thereof, nor shall it be a bar to the exercise of the Bank's rights or remedies at a later date. Should you have any questions, please do not hesitate to contact me Sincerely, Melissa Auman Commercial Asset Recovery Specialist METRO BANK METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellygmette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : DOCKET NO. / JEFFREY R. GETTYS and TAMMY D. GETTYS Defendants NOTICE OF ENTRY OF JUDGMENT TO: Jeffrey R. Gettys 87 Hoover Road Carlisle, PA 17013 You are hereby notified pursuant to Rule 236 of the Pennsylvania Rules of Civil Procedure that Judgment has been entered against you in the amount of $18,242.64 as provided in the Note and Guaranty referenced in the Complaint plus all interest after the entry of such judgment at the rate permitted by law. Prot no f C rland Co y °?? • SEAL Dad By: METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellygmette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff V. JEFFREY R. GETTYS and TAMMY D GETTYS Defendants TO: Tammy D. Gettys 87 Hoover Road Carlisle, PA 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. / ! - Jr7'5 6 c3iv, ^/ lel? NOTICE OF ENTRY OF JUDGMENT You are hereby notified pursuant to Rule 236 of the Pennsylvania Rules of Civil Procedure that Judgment has been entered against you in the amount of $18,242.64 as provided in the Note and Guaranty referenced in the Complaint plus all interest after the entry of such judgment at the rate permitted by law. Protho tary of Cumberland County C?Atm ) R, A t EAL Dat f' 7-HOMO TA ?r METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff °U ?h?SYL?COUNTY NIA ? PM 1: V'3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DOCKET NO. 1/ j 7 JEFFREY R. GETTYS and TAMMY D. GETTYS Defendants Certificate of Address I hereby certify that the Defendants maintain a resident address at: Jeffrey R. Gettys 87 Hoover Road Carlisle, PA 17013 Tammy D. Gettys 87 Hoover Road Carlisle, PA 17013 Respectfully submitted, Aajl?? a, zj%?/? Heather Z. Kelly, squire I.D. No. 86291 Mette, Evans & Woodside 3401 North Front Street P.O. BOX 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Date: Julyl8, 2011 Attorneys for Plaintiff METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff V. JEFFREY R. GETTYS and TAMMY D GETTYS Defendants -OFFICE MOTHONOTARY 2011 Sh 19 PM 1: 5 3 (CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. AFFIDAVIT OF NON-MILITARY SERVICE I am the attorney for Metro Bank, f/k/a Commerce Bank/Harrisburg, N.A., and according to the best of my information and belief, the Defendants are adult individuals and are not in the United States Military Service. Jeffrey R. Gettys Tammy D. Gettys 87 Hoover Road 87 Hoover Road Carlisle, PA 17013 Carlisle, PA 17013 I Respectfully submitted, Heather Z. Kelly, Esquire I.D. No. 86291 Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: July 18, 2011 OFFJC? +Prn%OTHONOTA,?9, 2011 JUL 19 pH 1: 514 I,U '? ?PRdSYLV ?OUNTY ANIA METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : DOCKET NO. 5--7y19 JEFFREY R. GETTYS and TAMMY D. ?`? GETTYS Defendants Notice Under Pa R.C.P. 2958.1 Of Judgment And Execution Thereon Notice of Defendant's Rights TO: Jeffrey R. Gettys 87 Hoover Road Carlisle, PA 17013 A judgment in the amount of $28,242,64 has been entered against you in favor of the plaintiff without any prior notice or hearing, based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 Respectfully submitted, Heather Z. Kelly, Esquire I.D. No. 86291 Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: July 18, 2011 j°LEU--i?rF1E: ?0 i JU 19 PM 1: 6 4 CUMBERLAND COUNTY PENNSYLVANIA METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : DOCKET NO. ] JEFFREY R. GETTYS and TAMMY D. j GETTYS Defendants Notice Under Pa R.C.P. 2958.1 Of Judgment And Execution Thereon Notice of Defendant's Rizhts TO: Tammy D. Gettys 87 Hoover Road Carlisle, PA 17013 A judgment in the amount of $18,242.64 has been entered against you in favor of the plaintiff without any prior notice or hearing, based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. V You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 Respectfully submitted, Heather Z. Kelly, squire I.D. No. 86291 Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: July 18, 2011 METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff Phi $ UPEN NSYLVA11A TY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. JEFFREY R. GETTYS and TAMMY D GETTYS Defendants DOCKET NO. NOTICE UNDER 42 Pa. C.S.A. 2737.1 OF RIGHT TO RECOVER ATTORNEY FEES AND COSTS AND PROCEDURE TO FOLLOW TO STRIKE OFF OR OPEN A CONFESSED JUDGMENT TO: Jeffrey R. Gettys 87 Hoover Road Carlisle, PA 17013 Pursuant to 42 Pa.C.S.A. 273 you are hereby notified that a debtor who has been incorrectly identified and had a confession of judgment entered against him shall be entitled to costs and reasonable attorney fees as determined by the court. Pursuant to 42 Pa.C.S.A. § 273 you are hereby notified of the instructions regarding the procedure to follow to strike off or open a confessed judgment under Pennsylvania Rule of Civil Procedure 2959, which is reproduced in full, on the following page. Respectfully submitted, Heather Z. Kelly, Esquire I.D. No. 86291 Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: July 18, 2011 PENNSYLVANIA RULE OF CIVIL PROCEDURE 2959 STRIKING OFF OR OPENING JUDGMENT; PLEADINGS AND PROCEDURE (a)(1) Relief from a judgment by confession shall besought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. (g) (1) A judgment shall not be stricken or opened because of a creditor's failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g)(1) shall apply to (1) judgment entered prior to the effective date of a subdivision (g) which have not been stricken or opened as of the effective date and (2) judgment entered on or after the effective date. f'MHONOTAiz"' X11 in 19 PM CUMBERLAND COUNTY ;PENNSYLVANIA METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JEFFREY R. GETTYS and TAMMY D. GETTYS Defendants DOCKET NO. // - S7 ? . NOTICE UNDER 42 Pa. C.S.A. 2737.1 OF RIGHT TO RECOVER ATTORNEY FEES AND COSTS AND PROCEDURE TO FOLLOW TO STRIKE OFF OR OPEN A CONFESSED JUDGMENT TO: Tammy D. Gettys 87 Hoover Road Carlisle, PA 17013 Pursuant to 42 Pa.C.S.A. 273 you are hereby notified that a debtor who has been incorrectly identified and had a confession of judgment entered against him shall be entitled to costs and reasonable attorney fees as determined by the court. Pursuant to 42 Pa.C.S.A. § 273 you are hereby notified of the instructions regarding the procedure to follow to strike off or open a confessed judgment under Pennsylvania Rule of Civil Procedure 2959, which is reproduced in full, on the following page. Respectfully submitted, Heather Z. Kelly, squire I.D. No. 86291 Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: July 18, 2011 PENNSYLVANIA RULE OF CIVIL PROCEDURE 2959 STRIKING OFF OR OPENING JUDGMENT; PLEADINGS AND PROCEDURE (a)(1) Relief from a judgment by confession shall besought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. (g) (1) A judgment shall not be stricken or opened because of a creditor's failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g)(1) shall apply to (1) judgment entered prior to the effective date of a subdivision (g) which have not been stricken or opened as of the effective date and (2) judgment entered on or after the effective date. 540135v1 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor d or"I - - - TjjjF 2911 JUL 26 AM 8: L 0 CUMBERLAND COUNTY PENNSYLVANIA Metro Bank Case Number vs. Jeffrey R. Gettys (et al.) 2011-5756 SHERIFF'S RETURN OF SERVICE 07/22/2011 10:28 AM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on July 22, 2011 at 1028 hours, he served a true copy of the within Complaint in Confession of Judgment and Notice, upon the within named defendant, to wit: Jeffrey R. Gettys, by making known unto Tammy Gettys, Wife of Defendant at 87 Hoover Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. A TSHALL, DEPUTY SHERIFF COST: $50.44 July 25, 2011 SO ANSWERS, RON R ANDERSON. SHERIFF Ronald L. Finck, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17108-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax rlfinck@mette.com METRO BANK, f/k/a COMMERCE BANK/HARRISBURG, N.A., Plaintiff V. JEFFREY R. GETTYS and TAMMY D. GETTYS, Defendants TO THE PROTHONOTARY:. I A'. J IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 11-5756 PRAECIPE Please enter the appearance of Ronald L. Finck and the law firm of Mette, Evans & Woodside as counsel for Plaintiff, Metro Bank f/k/a Commerce Bank/Harrisburg, N.A. Papers may be served on the address below. Respectfully submitted, METTE, EVANS & WOODSIDE By: (9".- Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 Mette, Evans & Woodside 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717)232-5000 fi4' i . Date: November 7, 2011 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Jeffrey R. Gettys Tammy F. Gettys 87 Hoover Road Carlisle, PA 17013 Respectfully submitted, METTE, EVANS & WOODSIDE By: 9r-& 4 - 4,..A Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 Mette, Evans & Woodside 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717)232-5000 Dated: November 7, 2011 544741v1 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 11-5756 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due METRO BANK F/K/A COMMERCE BANK/HARRISBURG, N.A. Plaintiff (s) From JEFFREY R. GETTYS AND TAMMY D. GETTYS, 87 HOOVER ROAD, CARLISLE, PA 17013 '?1/ ?y??t? ?/I? (1) You are directed to levy upon the property of the defendant (s)and to sell AW? "1'p &L ? ." y???j /? (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession pr of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $18,242.64 L.L. $.50 Interest FROM 7/19/11 (DATE OF JUDGMENT) THROUGH NOVEMBER 7, 2011 - $332.87 Atty's Comm % Atty Paid $104.44 Plaintiff Paid Date: 11/8/11 (Seal) REQUESTING PARTY: Name RONALD L. FINCK, ESQUIRE Address: METTE, EVANS & WOODSIDE Due Prothy $2.00 Other Costs: $174.00 -1 - David D. Buell, Prothonotary B: Deputy 3401 NORTH FRONT STREET, P.O. BOX 5950 HARRISBURG, PA 17110-0950 Attorney for: PLAINTIFF Telephone: 717-232-5000 Supreme Court ID No. 89985 METTE, EVANS & WOODSIDE Ronald L. Finck, Esquire Sup. Ct. ID No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) r?finck@mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A., Plaintiff r W (t`-''?t( t , , "U hn±s , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 11-5756 V. JEFFREY R. GETTYS and TAMMY D. GETTYS, Defendants ?? covey' ?oc?d L l She ? ?(? (70(3 PRAECIPE FOR WRIT OF EXECUTION To the Prothonotary: Issue writ of execution in the above matter: Amount Due (Judgment Amount) Interest from 7/19/11 (date of judgment) through November 7, 2011: Costs TOTAL: ?Q.4y CRS A -1.56 I a?? 4?f ?d C 103 3s.3 A -CPU ?()`? 0 $18,242.64 $332.87 $174.00 $ 18,749.51 e & Tz"R?k METTE, EVANS & WOODSIDE BY: 6W.JZ, ,ALA Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) Attorneys for Plaintiff Date: 1k 1'7' kx ` SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronq R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor Metro Bank Case Number vs. Jeffrey R. Gettys (et al.) 2011-5756 SHERIFF'S RETURN OF SERVICE 11/17/2011 12:07 PM - Deputy Michelle Gutshall, being duly sworn according to law, served the requested Writ of Execution and Claim for Exemption Form to a person representing themselves to be @AcceptedBy, who accepted as "Adult Person in Charge" for the within named Defendant, to wit: Jeffrey R. Gettys at 87 Hoover Road, Middlesex Township, Carlisle, PA 17013, informed person of contents of same and levied upon personal property as directed. Postcard and copy of levy mailed to attorney and letter mailed to defendant on November 18, 2011. 11/17/2011 12:07 PM - Michelle Gutshall, Deputy , being duly sworn according to law, states that on November 17, 2011 at 12:07 PM hours, served the requested Writ of Execution and Claim for Exemption Form by "personally" handing a true and attested copy to a person representing themselves to be the Defendant, tc wit Tammy D. Gettys at 87 Hoover Road, Middlesex Township, Carlisle, PA 17013, informed Defendant of contents of same and levied upon personal property as directed. Postcard and copy of levy mailed to attorney and letter mailed to defendant on November 18, 2011. 05/17/2012 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states this writ of execution is returned as ABANDONED. No action on writ in over 6 months. SHERIFF COST: $78.03 May 17, 2012 SO ANSWERS, 6Z, RONI`4 R ANDERSON, SHERIFF ?? 7G L1 i -. i? i J i 211Ul+F _" Ul~ u M1,7{ ;r-'E N'N!SY L'W`f' I Ronald L. Finck, Esquire METTE, EVANS & WOODSIDE Sup. Ct. ID No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rlfinck@mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JEFFREY R. GETTYS and TAMMY D. GETTYS Defendants DOCKET NO. 2011-5756 PRAECIPE TO WITHDRAW WRIT OF EXECUTION Plaintiff, Metro Bank, f/k/a Commerce Bank/Harrisburg, N.A. hereby withdraws the Writ of Execution issued to the Sheriff, Cumberland County, Pennsylvania, in the above-captioned matter on November 8, 2011, a copy of which is attached hereto as Exhibit "A". Respectfully submitted, METTE, EVANS & WOODSIDE By: ?-J. Ronald L. Finck, Esquire Sup. Ct. ID No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorneys for Plaintiff Date: May 31, 2012 ?- ?? ? 1Vli!'i' 0.i ' EXCCU'l LOO anotorA TAt':tlivl,XINT COMMOVWF„ALTH OF PENNSYLVANIA) COUNTY OF CUMSEM AND) NO 11-9736 Civil CIVIL ACTION -LAW TO THE SH MEF OF CTJ1 BERL. COUNTY; To satisfy the debt; interest and costs due ly!£"I'RO BANK FAVA COMMERCE BANWHARRISEURG, N.A. Plaintiff(j) (3) You are also directed to attach the property aF the de%dant(a) not levied upon in the possession of GAANISHEE(S) Pis foilotivs: 111413 (1) You art directed to levy upon the properly of the defendant (s)mrtd to sell aftd All puswa i P FrOM JEFPAEY R GEWYS ANN TAMMY D. GETTYA 87 HOOVIrR ROAD, CARLiSI.i, PA wd to notify the gamishe*) that: (a) an attachment has beet? Isvied; (b) the garnishee(s) is enjoined Eons P" s any debt to o r for the scoaar!t of the defhndatrc (s) and fmm do iyeang any propc* of the defendant (s) of otherwise disposing thereof; (3) If property ofthe de tadsat(s) trot levied upon an sated to attachment is %bond in the possession of aroma other dean a umcd ,gate Maas you are directed to ntrtify him/her thin helshe has been added as a garnishee and enjoined as above stated, ArnotMt Due $18,=.64 4L S.sa lateNsc NAOIM 7/19111 (DATE OF JUDGNMEN11) THROUGH NOVEMBER 7,1011-3333.87 Amy's Comm ?A Arty Paid $104.44 Piaini iffPaid Oaten 11/8111 (Seal) REOt1ESTING PARTY; Name RONALD L. FWC3C, ESQUIRE Addrav METTE, EVANS & WOODSIDE Due Pmthy S2.40 Other Costs: 5174.06 David D. Sued, Prodmomy v: C. p 3401 NORTH FRONT STREET, P.O. BOX 59301 XAR1 MMMG, PA 17110-0950 AttoMey for PLAINTgF Tollaphont. 71,7 232-M Supreme Court 10 No. 89993 r?-Jr4 COPY FROM REVr" y- h,ir.-hy',ana=f, I h40 Wft air., '.L w^ Oi p(tieloi r* Cwb ?. ! ?.. 1twaa dayot 20 JL_ p. .-Mlotary c. t0o-o ?)P-` CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Jeffrey A. Gettys Tammy D. Gettys 87 Hoover Road Carlisle, PA 17013 (Defendants) Gary J. Imblum, Esquire Imblum Law Office, P.C. 4615 Derry Street Harrisburg, PA 17111 (Bankruptcy Counsel for Defendants) METTE, EVANS & WOODSIDE By: (J]0". "?_ "dim Ronald L. Finck, Esquire Sup. Ct. ID No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorneys for Plaintiff Date: May 31, 2012 573906v1