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HomeMy WebLinkAbout11-5759 C-) rn co 67 PERSUN & HEIM P.C. , Lloyd R. Persun, Esquire --? `- d Identification No. 10139 1700 Bent Creek Boulevard P.O. Box 659 w Mechanicsburg, PA 17055-0659 ` ._,rTT7 (717) 620-2440 (717) 620-2442 (fax) MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY, successor by merger CUMBERLAND COUNTY, PENNSYLVANIA to Financial Trust Company, Plaintiff V. DOCKET NO. TOMMY L. HIPPENSTEEL DEBORAH S. HIPPENSTEEL, Defendants CONFESSION OF JUDGMENT Pursuant to the authority contained in the Commercial Guaranty, a true and correct copy of which is attached to Complaint in Confession of Judgment filed in this action, we appear for Defendants and confess judgment in favor of Plaintiff and against Defendants in the amount of $506,492.61, calculated as follows: Principal amount due $465,000.00 Interest through July 8, 2011 7,850.10 Late charges 23,642.51 Attorneys' fees (estimated) 10,000.00, plus interest accruing daily after July 8, 2011 at the rate(s) provided in the Note identified in the Complaint in Confession of Judgment filed in this action and all costs of suit. Lloy . Persun, Esquire I.D. No. 10139 -1d 7 ?5-6 Ida Persun & Heim, P.C. t 0d- y? DATE: July If a 2011 Appearing herein for Defendants ?4 I-J1;X')JJ , 23041v1 a ??i CL ? .t.G, l rte PERSUN & HEIM, P.C. Lloyd R. Persun, Esquire Identification No. 10139 1700 Bent Creek Boulevard P.O. Box 659 Mechanicsburg, PA 17055-0659 (717) 620-2440 (717) 620-2442 (fax) MANUFACTURERS AND TRADERS TRUST COMPANY, successor by merger to Financial Trust Company, Plaintiff V. TOMMY L. HIPPENSTEEL DEBORAH S. HIPPENSTEEL, Defendants C-) C N C? w C- S -TI cnr' -urn CD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. ? 4 COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, this / day of July, 2011, Plaintiff, Manufacturers and Traders Trust Company, by its attorneys files the following Complaint in Confession of Judgment: 1. Plaintiff is Manufacturers and Traders Trust Company, a New York banking institution which maintains offices at 1330 11`h Avenue, Altoona, Pennsylvania 16601, and is successor by merger to Financial Trust Company. 2. Defendants are Tommy L. Hippensteel and Deborah S. Hippensteel, adult individuals who are husband and wife residing at 165 Texaco Road, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. We RV, Inc. (the "Corporation") is a Pennsylvania corporation maintaining offices at 169 Texaco Road, Mechanicsburg, Cumberland County, Pennsylvania 17050 and, at times material hereto, was trading and doing business as Tom's Motor Sales. 4. At times material hereto, Defendants were officers of the Corporation. 5. On July 23, 1998, the Corporation executed a Promissory Note in favor of Plaintiff in the principal amount not exceeding Five Hundred Thousand Dollars ($500,000.00) (the "Note"). A true and correct copy of the Note is attached hereto as Exhibit "A" and made a part hereof. The Note was payable on demand. 6. On July 23, 1998, Defendants executed a Commercial Guaranty (the "Guaranty") which inured to the benefit of Plaintiff as successor by merger to Financial Trust Company, whereby Defendants personally guaranteed payment and performance of all obligations of the Corporation under the Note. A true and correct copy of the Guaranty is attached hereto as Exhibit "B" and made a part hereof. 7. On information and belief, the Corporation ceased operating as a going concern. Plaintiff demanded payment of the Note on March 4, 2011. The Corporation failed to make payment. 2 8. On May 19, 2011, Plaintiff mailed to Defendants by first class mail, postage prepaid, Act 91 Notices because the Note secured by a mortgage on their home is in default. Defendants did not arrange or attend a "face-to-face" meeting with a credit counseling agency within the time required in the Act 91 Notices. 9. The total sum due and owing Plaintiff as of July 8, 2011 under the Note is Five Hundred Six Thousand Four Hundred Ninety-Two Dollars and Sixty-One Cents ($506,492.61), computed as follows: Principal $465,000.00 Interest 7,850.10 Late charges 23,642.51 Attorney's fees (estimated) 10,000.00 Total $506,492.61 Costs and interest at the rate(s) provided in the Note continue to accrue. 10. For purposes of entry of the Judgment, Plaintiff did not calculate its attorney's fees based on the attorney's commission in the Guaranty. Instead, it estimated its attorney's fees on an hourly rate basis. Plaintiff's attorney's fees will be calculated and claimed only for the time actually expended by its attorney at his hourly rates in effect from time to time. 11. Defendants are in default under the Guaranty by failing to make payment of the Corporation's obligations to Plaintiff as required by the Guaranty. Plaintiff made demand therefor upon Defendants on March 4, 2011. 3 12. The sum due and owing Plaintiff as of July 8, 2011 under the Guaranty is Five Hundred Six Thousand Four Hundred Ninety-Two Dollars and Sixty-One Cents ($506,492.61) plus costs and interest at the rate(s) provided in the Note accruing thereafter. 13. Entry of Judgment by Confession is not sought in connection with a consumer credit transaction. 14. Plaintiff has not assigned the Note or the Guaranty. 15. Plaintiff has not entered judgment on the Guaranty prior to filing this Complaint. 16. Defendants are not subject to the protection of the provisions of the Soldiers and Sailors Civil Relief Act of 1940, as amended. 17. The Confession of Judgment clause in the Guaranty provides for the recovery of the unpaid principal balance, accrued interest, late charges, attorneys' fees and all costs of suit. 4 WHEREFORE, Plaintiff respectfully requests that your Honorable Court enter judgment by confession in favor of Plaintiff and against Defendants as authorized in the Guaranty in the amount of Five Hundred Six Thousand Four Hundred Ninety-Two Dollars and Sixty-One Cents ($506,492.61), plus interest at the rate(s) provided in the Note accruing after July 8, 2011 and all costs of suit. Respectfully submitted, Llo d R. Persun, Esquire I.D. No. 10139 Persun & Heim, P.C. 1700 Bent Creek Boulevard P.O. Box 659 Mechanicsburg, PA 17055-0659 (717) 620-2440 Attorneys for Plaintiff VERIFICATION I, Keith P. Mangan, as a Vice President of Manufacturers and Traders Trust Company, 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 as such Vice President 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 unworn falsification to authorities. ia.Manfgan Dated: July tl , 2011 23040v1 ?r?nB,T (Page 1 of 2) V, PROMISSORY NOTE ?N ' 3Zl 5AA1r 3T9(1 Principal Loan Date Maturity Loan No Catl Collateral Account Officer Initials $5001000100 07-23-1998 501-30"410 BB SBC X86w MB3 References in the shaded area are for Lender's use only and do not limit the a ^^??hh, nr_this_document to any articular loan or item ORi 9-"- n Borrower: We R V Inc DB/A Tom's Motor Sales Lender:l 165 Texaco Road Mechanicsburg, PA 17055-2626 Principal Amount: $500,000 00 Initial Rate: 9.500% TYPE -, OBLGT ,_ COMMENT $ DATE ly 23, 1998 PROMISE TO PAY We R V Inc DB/A Tom's Motor Sales ("Borrower") promises to pay to Financial Trust Company ("Lender"), or order, in lawful money of the United States of America, on demand, the principal amount of Five Hundred Thousand & 00/100 Dollars ($500,000 00) or so much as maybe outstanding, together with interest on the unpaid outstanding principal balance of each advance Interest shall be calculated from the date of each advance until repayment of each advance PAYMENT Borrower will pay this ban immediately upon Lender's demand In addition, Borrower will pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning September 15, 1998, with all subsequent interest payments to be due on the same day of each month after that 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 Unless otherwise agreed or required by applicable law, payments will be applied first to accrued unpaid interest, then to principal, and any remaining amount to any unpaid collection costs and late charges VARIABLE INTEREST RATE The interest rate on this Note is subject to change from time to time based on changes in an index which is Lender's Prime Rate (the "Index") This is the rate Lender charges, or would charge, on 90-day unsecured loans to the most creditworthy corporate customers This rate may or may not be the lowest rate available from Lender at any given time Lender will tell Borrower the current Index rate upon Borrower's request Borrower understands that Lender may make loans based on other rates as well The interest rate change will not occur more often than each DAY The Index currently is 8 500% per annum The interest rate to be applied to the unpaid principal balance of this Note will be at a rate of 1 000 percentage point over the Index, resulting in an initial rate of 9 500% per annum NOTICE Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law PREPAYMENT Borrower may pay without penalty all or a portion of the amount owed earlier than it is due Early payments will not, unless agreed to by under in writing, relieve Borrower of Borrower's obligation to continue to make payments of accrued unpaid interest Rather, they will reduce the principal balance due LATE CHARGE If a regularly scheduled interest payment is 15 days or more late, Borrower will be charged 5 000% of the regularly scheduled payment If Lender demands payment of this loan, and Borrower does not pay the loan within 15 days after Lender's demand, Borrower also will be charged 5 000% of the sum of the unpaid principal plus accrued unpaid interest DEFAULT Borrower will be in default if any of the following happens (a) Borrower fails to make any payment when due (b) Borrower breaks any promise Borrower has made to Lender, or Borrower fails to comply with or to perform when due any other term, obligation, covenant, or condition contained in this Note or any agreement related to this Note, or in any other agreement or loan Borrower has with Lender (c) Any representation or statement made or furnished to Lender by Borrower or on Borrower's behalf is false or misleading in any material respect either now or at the time made or furnished (d) Borrower becomes insolvent, a receiver is appointed for any part of Borrower's property, Borrower makes an assignment for the benefit of creditors, or any proceeding is commenced either by Borrower or against Borrower under any bankruptcy or insolvency laws (e) Any creditor tries to take any of Borrower's property on or in which Lender has a lien or security interest This includes a garnishment of any of Borrower's accounts with Lender (f) Any guarantor dies or any of the other events described in this default section occurs with respect to any guarantor of this Note (g) A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired (h) Lender in good faith deems itself insecure LENDER'S RIGHTS Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount Lender may hire or pay.someone else to help collect this Note if Borrower does not pay Borrower also will pay Lender that amount This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including 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 If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law If judgment is entered in connection with this Note, interest will continue to accrue on this Note after judgment at the interest rate applicable to this Note at the time judgment is entered This Note has been delivered to Lender and accepted by Lender in the Commonwealth of Pennsylvania if there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, the Commonwealth of Pennsylvania This Note shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania RIGHT OF SETOFF Borrower grants to Lender a contractual security interest in, and hereby assigns, conveys, delivers, pledges, and transfers to Lender all Borrower's right, title and interest in and to, Borrower's accounts with Lender (whether checking, savings, or some other account), including without limitation all accounts held jointly with someone else and all accounts Borrower may open in the future, excluding however all IRA and Keogh accounts, and all trust accounts for which the grant of a security interest would be prohibited by law Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on this Note against any and all such accounts COLLATERAL This Note is secured by, in addition to any other collateral, a Mortgage dated July 23, 1998, to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania, all the terms and conditions of which are hereby incorporated and made a part of this Note LINE OF CREDIT This Note evidences a revolving line of credit Advances under this Note may be requested orally by Borrower or by an authorized person All oral requests shall be confirmed in writing on the day of the request All communications, instructions, or directions by telephone or otherwise to Lender are to be directed to Lender's office shown above The following party or parties are authorized to request advances under the line of credit until Lender receives from Borrower at Lender's address shown above written notice of revocation of their authority Tommy L Hippensteel and Deborah S Hippensteel Borrower agrees to be fable for all sums either (a) advanced in accordance with the instructions of an authorized person or (b) credited to any of Borrower's accounts with Lender The unpaid principal balance owing on this Note at any time may be evidenced by endorsements on this Note or by Lender's internal records, including daily computer print-outs Lender will have no obligation to advance funds under this Note if (a) Borrower or any guarantor is in default under the terms of this Note or any agreement that Borrower or any guarantor has with Lender, including any agreement made in connection with the signing of this Note, (b) Borrower or any guarantor ceases doing business or is insolvent, (c) any guarantor seeks, claims or otherwise attempts to limit, modify or revoke such guarantor's guarantee of this Note or any other loan with Lender, (d) (Page 2 of 2) 07-23-1998 PROMISSORY NOTE Page 2 (Continued) Borrower has applied funds provided pursuant to this Note for purposes other than those authorized by Lender, or (e) Lender in good faith deems itself insecure under this Note or any other agreement between Lender and Borrower LINE OF CREDIT ASSESSMENT The Bank, in its discretion, may charge the Undersigned an annual line of credit assessment The amount of the annual line of credit assessment is $100 00 and is subject to change GENERAL PROVISIONS This Note is payable on demand The inclusion of specific default provisions or rights of Lender shall not preclude Lender's right to declare payment of this Note on its demand 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, protest 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, fall 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 If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note CONFESSION OF JUDGMENT BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE, AND WITH OR WITHOUT COMPLAINT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST, LATE CHARGES, AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE TOGETHER WITH INTEREST ON SUCH AMOUNTS, 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, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLE LAW WITH RESPECT TO EXECUTION OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED BORROWER We R V Ac D/B/A Tom's Motor Sales BY (SEAL) Deborah S Hip eel re nUSecretary Variable Rate Lme of Credit LASER PRO, Reg U S Pal d T M Off , Ver 3 28(c)1998 CFI ProServices, Inc All rights reserved [PA-020 HIPPENS LN C23 OVLI 8 (Page 1 of 3) COMMERCIAL GUARANTY 3cs?( Principal Loan Date Me UMV Loan No Call ; Collateral Account Officer InRlals -285435- 463 References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item Borrower: we R V Inc. DANA Tom's Motor Sales Lender: Financial Trust Company 155 Texaco Road Camp WII Mechanicsburg, PA 17055-2626 91105 Trindle Road Camp Hill, PA 17011 Guarantor: Tommy L. Hippensteet and Deborah S. Hippensleel 165 Texaco Road Mechanicsburg, PA 17055-2626 AMOUNT OF GUARANTY. This is a guaranty of payment of the Note, Including without limitation the principal Note amount of Five Hundred Thousand 6 001100 Dollars (f500,000.oo). GUARANTY. For good and valuable consideration, Tommy L. Hippensteel and Deborah S. Hippensteel ("Guarantor") absolutely and unconditionally guarantee and promise to pay, jointly and severalty, to Financial Trust Company ("Lender") or Its order, on demand, in legal tender of the United Stales of America, the Indebtedness (as that term is defined below) of We R V Inc. DIBIA Tom's Motor Sales ("Borrower") to Lender on the terms and conditions set forth in this Guaranty. DEFINITIONS. The folowing words shall have the following meanings when used In this Guaranty: Borrower. The word "Borrower" means We R V Inc. DIBIA Tom's Motor Sales. Guarantor. The word "Guarantor" means Tommy L. Hippenstsel and Deborah S. Hippensteel, who are signing this Guaranty jointly and severally. Guaranty. The word 'Guaranty" means this Guaranty made by Guarantor for the benefit of Lender dated July 23, 1998. Indebtedness. The word 'Indebtedness" means the Note, including (a) all principal, (b) all interest, (e) all late charges, (d) all loan leas and loan charges, and (e) all collection costs and expenses retailing to the Note or to any collateral lot the Note. Collection costs and expenses include without limitation all of Lenders attorneys' fees and Lenders legal expenses, whether of not suit is instituted, and attorneys' lees and legal expenses for bankruptcy proceedings (including efforts to motley or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Lender. The word "Lender" means Financial Trust Company, Its successors and assigns. Note. The wad 'Note" means the promissory note or credit agreement dated July 23, 1998, In the original principal amount of $500,11110.00 from Borrower to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substilubons for the promissory note or agreement. Notice to Guarantor: The Note evidences a revolving fine of credit from Lender to Borrower. Related Documents. The words 'Related Documents" mean and Include without limitation all promissory notes, credit agreements, ban agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other Instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty shall not exceed at any one lime the amount of the Indebtedness described above, plus all costs and expenses of (a) enforcement of this Guaranty and (b) collection and sale of any collateral securing this Guaranty. The above limitation on liability is not a restriction on the amount of the Indebtedness of Borrower to Lender either in the aggregate or at any one lime. If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, the rights of Lender under all guaranties shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) effect or invalidate any such other guaranties. The liability of Guarantor wig be the aggregate liability of Guarantor under the terms of this Guaranty and any such other unlerminated guaranties. NATURE OF GUARANTY. Guarantor intends to guaranies at all times the performance and prompt payment when due, whether at maturity or earlier by reason of acceleration or otherwise, of ell Indebtedness Within the limits set forth in the preceding section of this Guaranty. TMs Guaranty covers a revolving line of credit and guarantor understands and agrees Ihat this guarantee shall be open and continuous until the line of credit Is terminated and the Indebtedness is paid in full, as provided Wow. The obligations of Guarantors shall be joint and several. Lender may proceed against any of the Guarantors individually, against any group of Guarantors, or against all the Guarantors In one action, without effecting the right of Lender to proceed against other Guarantors for amounts that are covered by this Guaranty. Any inability of Lender to proceed against any Guarantor (whether caused by actions of a Guarantor or of Lender) will not affect Lenders right to proceed against any or all remaining Guarantors for all or pan of the amounts covered by this Guaranty. 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 Indebtedness shall have been fully and finally paid and satisfied and all other obligations of Guarantor under this Guaranty shall have been performed in full. 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 received by Lender from any one or more Guarantors shell not affect the lability of any remaining Guarantors under this Guaranty. This Guaranty covers a revolving line of credit and It Is specifically anticipated that fluctuations will occur In the aggregale amount of Indebtedness owing from Borrower to Lender. Guarantor specificafly acknowledges and agrees that fluctuations in the amount of Indebtedness, even to zero dollars (S 0.o t), shall not constitute a termination of this Guaranty. Guarantor's liability under this Guaranty shall terminate only upon (a) termination In writing by Borrower and Lender of the line of credit, (b) payment of the Indebtedness in full in legal lender, and (c) payment in full In legal tender of all other obligations of Guarantor under this Guaranty. GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice or demand and without lessening Guarantor's liability under this Guaranty, from time to time: (a) 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 pan 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 halo security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, tell 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 shale be made on the Indebtedness; (f) to apply such security and direct the order or manner of sate thereof, including without limitation, any nonjudicial sale permitted by the terms of the connlling security agreement or deed of trust, as Lender In Its discretion may determine; (g) to sell, transfer, assign, or grant «(( eN)<UV- (Paige 2 of 3) 07-23-1998 COMMERCIAL GUARANTY Page 2 (Continued) participations in all or any part of the Indebtedness; and (h) to assign or transfer this Guaranty In whole or in pert. 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 quality in any way the terms of this Guaranty; (b) this Guaranty is executed of Borrowers 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 Guarantors assets, or any interest therein; (f) upon Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lander, and all such financial informaton which currently has been, and all future financial information which will be provided to Lender is and wig be true and correct in all material respects and fairly present the financial condition of Guarantor as of the dates the financial information is provided; (g) no material adverse change has occurred in Guarantor's financial condition since the dale of the most recent financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantors 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 INS 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 WAIVERS. Except as prohibited by applicable law. Guarantor waives any right b 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 of of any nonpayment related to any collateral, or notice of any action or nonacllon on the part of Borrower. Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of nevi or additional bans or obligations; (c) to resat 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, lime, 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; (1) to pursue any other remedy within Lenders power; or (g) to commit any act or omission of any kind, or at any time, with respect to any metier whatsoever. Guarantor also waives any and all rights or defenses arising by reason of (a) any 'one action' or 'anti-defctency' law or any other law which may prevent Lender from bringing any action, including a claim tor deficiency, against Guarantor, before or after Lenders 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 sorrowers 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 un)ustlftad impairment of any collateral for Ins Indebtedness; (a) any statute of limitations, it at any lime any action or suit brought by Lender against Guarantor is comhlenced there is outstanding Indebtedness of Borrower to Lender which is not barred by any applicable statute of limitations; or (0 any defenses given to guarantors at law or in equity other then 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 Borrowers 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 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 fa 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 lull 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, LENDER'S RIGHT OF SETOFF. In addition to all liens upon and rights of setoff against the moneys, securities or other property of Guarantor given to Lender by law. Lender shall have, with respect to Guarantors obligations to Lender under this Guaranty and to the extent permitted by law, e contractual security interest in and a right of setoff against, and Guarantor hereby assigns, conveys, delivers. pledges. and transfers to Lender all of Guarantor's right, title and interest in and to, all deposits, moneys, securities and other property of Guarantor now or hereafter In the possession of or on deposit with Lender, whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding however all IRA, Keogh, and trust accounts. Every such security interest and right of setoff may be exercised without demand upon or notice to Guarantor. No security interest or right of setoff shag be doomed to have been waived by any act or conduct on the part of Lander or by any neglect to exercise such right of setoff or to enforce such security interest or by any delay in so doing, Every right of setoff and security interest shall continue in full force and effect until such fight of setoff or security interest is specifically waived or released by an instrument in writing executed by Lender. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to Lender, whether now existing or hereafter created, shall be prior 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 Lander may now or hereafter have against Borrower. In Ube 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 Lander and Guarantor shall be paid to Lender and shall be first applied by Lander to the Indebtedness of Borrower to Lender. 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 lender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to Guarantor shag be marked wish a legend that the same are subject to this Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender hereby is authorized, in the name of Guarantor, from lime to lime to execute and file financing statements and continuation statements and to execute such other documents and to lake such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce Its rights under this Guaranty. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No 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 allocation or amendment. Applicable Law. This Guaranty has been delivered to Lender and accepted by Lender in the Commonwealth of Pennsylvania. If there is a (Page 3 of 3) 07-23-1998 \ COMMERCIAL GUARANTY Page 3 (Continued) lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Commonwealth of Pennsylvania. This Guaranty shell be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania: Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's costs and expenses, Including attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Guaranty. Lander may 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 attorneys' fees and legal expenses whether or not there ts a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (and inducting 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. Notleea. All notices required to be given by either party to the other under this Guaranty shall be In writing, may be sent by fewhicsimae (unless otherwise required by low), and shell be effective when actually delivered or when deposited with a nationally recognized overnight courier, or when deposited in the United States mail, first class postage prepaid, addressed to the party to whom the notice is to be given at the address shown above or to such other addresses as either party may designate to the other in writing. If there is more than one Guarantor, notice to any Guarantor will constitute notice to all Guarantors. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's current address. InterpretNlon. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shag be deemed to have been used in the plural where the contend and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty Is executed by more than one Guarantor, the words 'Borrower' and 'Guarantor' respectively shall mean all and any one or more of them. The words 'Guarantor.' 'Borrower' and 'Lender' include the heirs, sucoessors, assigns, and transferees of each of them. Caption headings in INS Guaranty are for convenience purposes only and are not to be used to Interpret or define the provisions of this Guaranty. If a court of competent jurisdiction finds any provision of this Guaranty to be invalid or unenforceable as to any person or circumslanca, such finding shag not render that provision invalid or unenforceable as to any other persons or circumstances, and all provisions of this Guaranty in all other respects shall remain valid and enforceable. If any one or more of Borrower or Guarantor are corporations or partnerships, it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, or agents acting or purporting to act on their behalf, and any Indebtedness made or created in reliance upon the professed exercise of such powers shag be guaranteed under this Guaranty. Waiver. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in wring and signed by Lender. No delay or omission on thepari 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 SIMI 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 Idurs transactions. Whenever the consent of Lender is required under this Guaranty, the granfing of such consent by Lender in any instance shell 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. CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR GUARANTOR AFTER A DEFAULT UNDER THIS GUARANTY, AND WITH OR WITHOUT COMPLAINT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY, ALL ACCRUED INTEREST, LATE CHARGES, AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEBTEDNESS TOGETHER WITH INTEREST ON SUCH AMOUNTS, 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 ($SW) 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, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLE LAW WITH RESPECT TO EXECUTION OF THE 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 GUARANTORS 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 JULY 23, 199x. THIS GUARANTY HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. GUARANTOR: X ?? -.,:. _ ?(SEAt) X ?? • Lntl ._?`r,..? ..?`??'..-{BEAK) Tommy L. H ippensteel Deborah S. HI 1 LASER PRO. Rog. U.S. Pat. & T.M. Off.. Va. 3.20 (C)199a CFI PrOSarvCe+. 1- Allrlghla shame. IPA-E20 HIPPENS.LN C23.OVLI c^? PERSUN & HEIM P C ? C m , . . r Lloyd R. Persun, Esquire -? -. r Identification No. 10139 1700 Bent Creek Boulevard P.O. Box 659 c,y Cl) Mechanicsburg, PA 17055-0659 .' (717) 620-2440 ° (717) 620-2442 (fax) MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY, successor by merger CUMBERLAND COUNTY, PENNSYLVANIA to Financial Trust Company, Plaintiff V. DOCKET NO. r` j 7 J ? r '?.?? TOMMY L. HIPPENSTEEL DEBORAH S. HIPPENSTEEL, Defendants CERTIFICATE OF BUSINESS AND RESIDENCE ADDRESSES I hereby certify that the business address of the Plaintiff and the residence address of Defendants are as follows: Manufacturers and Traders Trust Company Tommy L. Hippensteel 1330 11th Avenue 165 Texaco Road Altoona, PA 16601 Mechanicsburg, PA 17050 Deborah S. Hippensteel 165 Texaco Road Mechanicsburg, PA 17050 Ke' P. Mangan, Vice President Manufacturers and Traders Trust Company DATE: July // , 2011 23042v1 PERSUN & HEIM, P.C. Lloyd R. Persun, Esquire Identification No. 10139 1700 Bent Creek Boulevard P.O. Box 659 Mechanicsburg, PA 17055-0659 (717) 620-2440 (717) 620-2442 (fax) rn C. 2-M * C.3 a 7 (- c 11-1 Cl- cW- r--- w c- C3 MEN r ?l '_t •i MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY, successor by merger CUMBERLAND COUNTY, PENNSYLVANIA to Financial Trust Company, Plaintiff V. DOCKET NO. TOMMY L. HIPPENSTEEL DEBORAH S. HIPPENSTEEL, Defendants AFFIDAVIT OF NON-MILITARY SERVICE Keith P. Mangan, being duly sworn according to law, deposes and says that he is a Vice President of the Plaintiff in this action; that he makes this Affidavit on its behalf, being authorized so to do as a Vice President; and that based upon his knowledge or information and belief, Defendants are approximately 55 years of age and that they are not in the military services of the United States or its allies. Mangan, Vice President Manufacturers and Traders Trust Company Sworn to and subscribed before me this day of July, 2011. No y lic NSYL Nodriel Seal Lynn Stellabotte, Notary Public City Of Altoona, Blair County (Seal) My Caron EON@$ Mar 7.20 My commission expires: >< t' I a v 1 23043vl MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY, successor by merger CUMBERLAND COUNTY, PENNSYLVANIA to Financial Trust Company, Plaintiff V. TOMMY L. HIPPENSTEEL DEBORAH S. HIPPENSTEEL, Defendants DOCKET NO. I/, S- 7`5--q c, 'l lee^^- NOTICE OF ENTRY OF JUDGMENT TO: Tommy L. Hippensteel Deborah S. Hippensteel 165 Texaco Road 165 Texaco Road Mechanicsburg, PA 17050 Mechanicsburg, PA 17050 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 $506,492.61, itemized as follows: 1. Principal - $465,000.00 2. Interest through June 8, 2011 - 7,850.10 4. Late charges - 23,642.51 5. Attorneys' fees (estimated) - 10,000.00, plus interest accruing daily after July 8, 2011 at the rate(s) provided in the Note identified in the Complaint in Confession of Judgment filed in this case and all costs of suit. y, r ?i Date 23044v1 Prothonotary Cu rlan unty By: (SEAL) SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff F11 - J (. ' [" 03 4: ?ranlr? IF [ , n x f T I I -J, Jody S Smith, Chief Deputy _ 7011 AUG _8 Pfd 3: rD, Richard W Stewart Solicitor r-l F98EL t ,4? ?i'. [, PEKNSSYLVA -C"" Manufacturers and Traders Trust Company Case Number vs. Tommy L. Hippensteel (et al.) 2011-5759 SHERIFF'S RETURN OF SERVICE 08/02/2011 07:42 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on August 2, 2011 at 1942 hours, she served a true copy of the within Notice, upon the within named defendant, to wit: Tommy L. Hippensteel, by making known unto himself personally, at 165 Texaco Road, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to him personally the said true and correct copy of the same. MICHELLE GUTSHALL, DEPUTY 08/02/2011 07:42 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on August 2, 2011 at 1942 hours, she served a true copy of the within Notice, upon the within named defendant, to wit: Deborah S. Hippensteel, by making known unto herself personally, at 165 Texaco Road, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to her personally the said true and correct copy of the same. rq` v MICHELLE GUTSHALL, DEPUTY SHERIFF COST: $54.44 SO ANSWERS, August 03, 2011 RON R ANDERSON, SHERIFF 1 ,c Counlr Suite Shl rff. i e?ecs;;ft. IrtC.