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IN THE COURT OF COMMON PLEAS OF E?-a °D o
CUMBERLAND COUNTY, PENNSYLVANIA -0
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FARMERS AND MERCHANTS TRUST CIVIL DIVISION 3>
COMPANY OF CHAMBERSBURG, r"
Plaintiff, NO.: /01-151
vs.
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL,
Defendants.
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the aforesaid $285K Note, the $43K Note and the
Guaranties thereof, copies of which are attached to the Complaint filed in this action, I appear for
the Plaintiff and confess judgment in favor of Plaintiff and against Defendants as follows:
COUNT I:
Principal $ 262,956.20
Interest through 3-15-2012 $ 11,585.08
Late Charges $ 2,011.11
Attorney's Fees and Costs $ 27,454.12
(10% of Unpaid Principal & Accrued Interest)
TOTAL $ 304,006.51
with interest on the principal sum of ($262,956.20) from March 15, 2012 at the contractual rate.
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COUNT II:
Principal $ 9,098.22
Interest through 3-15-2012 $ 762.14
Late Charges $ 691.88
Attorney's Fees and Costs 986.03
(10% of Unpaid Principal & Accrued Interest)
TOTAL $11,538.27
with interest on the principal sum of ($9,098.22) from March 15, 2012 at the contractual rate.
FOR A TOTAL sum of $315,544.78 with interest on the principal sum ($272,054.42)
from March 15, 2012 at the contractual rate, and brings said instrument to Court to recover the
said sum.
JAMES, SMITH,
& CONNEIAy I.
BY:
Scott A. i
Attorneys MD;
PRO HAC ICPA I.D. # 55650
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
CK
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST CIVIL DIVISION
COMPANY OF CHAMBERSBURG,
Plaintiff, NO.: C
L /k-
VS.
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL,
TYPE OF PLEADING:
Defendants. CIVIL ACTION - COMPLAINT IN
CONFESSION OF JUDGMENT
TO: DEFENDANT(s) FILED ON BEHALF OF:
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE
ENCLOSED COMPLAINT WITHIN TWENTY (20) DAYS Farmers and Merchants Trust
FROM SERVICE HEREOF OR A DEFAULT JUDGMENT Company of Chambersburg, Plaintiff
MAY BE EN ERED AGAINST YOU.
COUNSEL OF RECORD FOR
THIS PARTY:
/1111 Scott A. Dietterick, Esquire
ATTO TjR PLAINTIFF Pa. I.D. #55650
I HEREBY CERTIFY THAT THE ADDRESS
OF THE PLAINTIFF IS: JAMES, SMITH, DIETTERICK &
P.O. Box 6010 CONNELLY LLP
Chambersburg, PA 17201 P.O. Box 650
AND THE DEFENDANT(S): Hershey, PA 17033
Shippensburg Fitness Center, Inc. (717) 533-3280
117 West Burd Street, Shippensburg, PA 17257
Robert G. Staver
109 Foxcross Drive, Hendersonville, TN 37075
Heath E. Newell
14 Irvin Drive, IShippensburg, PA 17257
ATTOFNF YTKKW 1AINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST CIVIL DIVISION
COMPANY OF CHAMBERSBURG,
Plaintiff, NO.: 11
vs. I C ? - 1 I'
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL,
Defendants
CIVIL ACTION - COMPLAINT IN CONFESSION OF JUDGMENT
And now comes Farmers and Merchants Trust Company of Chambersburg, by its
attorneys, James, Smith, Dietterick & Connelly, LLP, and files this Complaint in Confession of
Judgment as follows:
1. Farmers and Merchants Trust Company of Chambersburg ("Plaintiff') is a
financial institution under the laws of the United States of America, with its principal place of
business located at P.O. Box 6010, Chambersburg, Pennsylvania 17201.
2. The Defendant, Shippensburg Fitness Center, Inc., is a corporation with an
address of 117 West Burd Street, Shippensburg, Pennsylvania 17257.
3. The Defendant, Robert G. Staver, is an adult individual with an address of 109
Foxcross Drive, Hendersonville, Tennessee 37075.
4. The Defendant, Heath E. Newell, is an adult individual with an address of 14
Irvin Drive, Shippensburg, Pennsylvania 17257.
On or about November 1, 2006, Defendant, Shippensburg Fitness Center, Inc.
("Shippensburg Fitness"), executed and delivered a certain Promissory Note in favor of Plaintiff
in the original principal amount of $285,000.00 ("$285K Note"), which $285K Note authorized a
Confession of Judgment against Shippensburg Fitness. A copy of said $285K Note is marked
Exhibit "A", attached hereto and made a part hereof.
6. On or about January 10, 2007, Defendant, Shippensburg Fitness, executed and
delivered a certain Promissory Note in favor of Plaintiff in the original principal amount of
$43,000.00 ("$43K Note"), which $43K Note authorized a Confession of Judgment against
Shippensburg Fitness. A copy of said $43K Note is marked Exhibit "B", attached hereto and
made a part hereof.
7. On or about January 10, 2007, Robert G. Staver ("Mr. Staver"), executed and
delivered to Plaintiff a Commercial Guaranty ("Mr. Staver Guaranty") irrevocably guarantying
and becoming surety for all obligations of Shippensburg Fitness, to Plaintiff under the $43K
Note, which Mr. Staver Guaranty authorized a Confession of Judgment against Mr. Staver. A
true and correct copy of the Mr. Staver Guaranty is marked Exhibit "C", attached hereto and
made a part hereof.
8. On or about January 10, 2007, Heath E. Newell ("Mr. Newell"), executed and
delivered to Plaintiff a Commercial Guaranty ("Mr. Newell Guaranty" referred to collectively
with the Mr. Staver Guaranty as the "Guaranties") irrevocably guarantying and becoming surety
for all obligations of Shippensburg Fitness, to Plaintiff under the $43K Note, which Mr. Newell
Guaranty authorized a Confession of Judgment against Mr. Newell. A true and correct copy of
the Mr. Newell Guaranty is marked Exhibit "D", attached hereto and made a part hereof.
COUNT I
Confession of Judgment of the $285K Note and the Guaranties
9. Plaintiff hereby incorporates by reference its averments in Paragraphs 1 through 8
as if set forth fully herein.
10. Neither the $285K Note nor the Guaranties, thereof, have been released,
transferred or assigned.
11. Judgment has not been entered against the Defendants on the $285K Note or the
Guaranties in any jurisdiction.
12. Defendant, Shippensburg Fitness, is in default under the aforesaid $285K Note
and Defendants, Mr. Staver and Mr. Newell, under the Guaranties, thereof, for failure to pay
installments of principal and interest when due.
13. The judgment is not being entered by confession against a natural person in
connection with a consumer credit transaction.
14. The itemization of the amount due, including interest and attorneys' fees as
authorized by the $285K Note, the Guaranties as follows:
Principal $ 262,956.20
Interest through 3-15-2012 $ 11,585.08
Late Charges $ 2,011.11
Attorney's Fees and Costs $ 27,454.12
(10% of Unpaid Principal & Accrued Interest)
TOTAL $ 304,006.51
with interest on the principal sum of ($262,956.20) from March 15, 2012 at the contractual rate.
WHEREFORE, Plaintiff as authorized by the $285K Note and the Guaranties, demands
judgment against the Defendants in the amount of $304,006.51 with interest on the principal sum
($262,956.20) from March 15, 2012 at the contractual rate.
COUNT II
Confession of Judgment of the $43K Note and the Guaranties
15. Plaintiff hereby incorporates by reference its averments in Paragraphs 1 through
14 as if set forth fully herein.
16. Neither the $43K Note nor the Guaranties, thereof, have been released, transferred
or assigned.
17. Judgment has not been entered against the Defendants on the $43K Note or the
Guaranties in any jurisdiction.
18. Defendant, Shippensburg Fitness, is in default under the aforesaid $43K Note and
Defendants, Mr. Staver and Mr. Newell, under the Guaranties, thereof, for failure to pay
installments of principal and interest when due.
19. The judgment is not being entered by confession against a natural person in
connection with a consumer credit transaction.
20. The itemization of the amount due, including interest and attorneys' fees as
authorized by the $43K Note and the Guaranties as follows:
Principal $ 9,098.22
Interest through 3-15-2012 $ 762.14
Late Charges $ 691.88
Attorney's Fees and Costs $ 986.03
(10% of Unpaid Principal & Accrued Interest)
TOTAL $ 11,538.27
with interest on the principal sum of ($9,098.22) from March 15, 2012 at the contractual rate.
WHEREFORE, Plaintiff as authorized by the $43K Note and the Guaranties, demands
judgment against the Defendants in the amount of $11,538.27 with interest on the principal sum
($9,098.22) from March 15, 2012 at the contractual rate.
WHEREFORE, Plaintiff as authorized by the $285K Note, the $43K Note and the
Guaranties, demands judgment in its favor and against Defendants in the total sum of
$315,544.78 with interest on the principal sum ($272,054.42) from March 15, 2012 at the
contractual rate, and brings said instrument to Court to recover the said sum.
JAMES, SMITf4DXTTERICK
& CONNELL L l1
BY:
Scott A. Di
Attorneys for 1 ntj
PA I.D. # 556
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
THIS IS AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION OBTAINED
WILL BE USED FOR THAT PURPOSE.
EXHIBIT "A"
PROMISSORY NOTE
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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.
Any item above containing """" has been omitted due to text length limitations.
Borrower: Shippenaburg Fitness Center, Inc. (TIN: Lender: Farmers and Merchants Trust Company of
25.1482241) Chambersburg
117 West Burd Street Franklin County
Shippenaburg, PA 17257 Chambersburg, PA
Principal Amount: $285,000.00 Date of Note: November 1, 2006
PROMISE TO PAY. Shippenaburg Fitness Center, Inc. ("Borrower") promises to pay to Farmers and Merchants Trust Company of Chambersburg
("Lender"), or order, in lawful money of the United States of America, the principal amount of Two Hundred Eighty-five Thousand & 001100
Dollars ($285,000.00), together with Interest on the unpaid principal balance from November 1, 2006, until paid in full.
PAYMENT. Subject to any payment changes resulting from changes in the Index, Borrower will pay this loan in accordance with the following
payment schedule: 60 monthly consecutive principal and interest payments in the initial amount of $2,359.38 each, beginning December 1,
2006, with interest calculated on the unpaid principal balances at an initial discounted interest rate of 7.750% per annum; 179 monthly
consecutive principal and interest payments in the initial amount of $2,432.55 each, beginning December 1, 2011, with interest calculated on
the unpaid principal balances at an interest rate based on the New York Prima Rate as published in the Wall Street Journal_ When a range of
rate has been published, the higher of the rates will be used (currently 8.250%), resulting in an initial interest rate of 8.250%; and one principal
and interest payment of $2,431.65 on November 1, 2026, with interest calculated on the unpaid principal balances at an interest rate based on
the New York Prime Rate as published in the Wall Street Journal. When a range of rate has been published, the higher of the rates will be used
Icurrentiy 8.250%), resulting in an initial interest rate of 8.250%. This estimated final payment is based on the assumption that all payments
will be made exactly as scheduled and that the Index does not change; the actual final payment will be for all principal and accrued interest not
yet paid, together with any other unpaid amounts tender this Note. Unless otherwise agreed or required by applicable law, payments will be
applied first to any unpaid collection costs; then to any late charges; then to any accrued unpaid interest; and then to principal. The annual
interest rate for this Note is computed on a 3651360 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.
VARIABLE INTEREST RATE. For the first 60 payments, the interest rate on this loan will be 7.750%. Thereafter, the interest rate on this Note
is subject to change from time to time based on changes in an independent index which is the New York Prime Rate as published in the Wall
Street Journal. When a range of rate has been published, the higher of the rates will be used (the "Index"i. The Index is not necessarily the
lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute
index after notifying Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur
more often than each time there has been a change in the Index. Borrower understands that Lender may make loans based on other rates as
well. The Index currently is 8,250% per annum. The interest rate or rates to be applied to the unpaid principal balance during this Note will be
the rate or rates set forth herein in the "Payment" section. Notwithstanding any other provision of this Note, after the first payment stream, the
interest rate for each subsequent payment stream will be effective as of the last payment date of the just-ending payment stream. NOTICE:
Under no circumstances will the interest rate on this Note be more than the maximum rate allowed byoapplicable law. Whenever increases
occur in the interest rate, Lender, at its option, may do one or more of the following: (A) increase Borrdwer's payments to ensure Borrower's
loan will pay off by its original final maturity date, (B) increase Borrower's payments to cover accruinj interest, (C) increase the number of
Borrower's payments, and (D) continue Borrower's payments at the same amount and increase BorrovQeT's final payment.
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: In the event any portion of the principal amount of the Note is
prepaid during the fixed-rate period of the Note, a Prepayment Premium will be due and payable by the Borrower to the Lender. The Prepayment
Premium, calculated as of the payment date, will be equal to the present vakie of the remaining scheduled payments of principal and interest
plus the present value of the principal balance due at the end of the fixed-rate period. The discount rate used to calculate the present value will
be equal to the interest rate that would be charged for a new loan of like kind and quality with a fixed rate period equal to the remaining fixed
rate period on the original loan. If the calculated Prepayment Premium exceeds the principal amount being prepaid, then this excess amount will
be due to the Lender. If the calculated Prepayment Premium is equal to or less than the principal amount being paid, then the amount due to the
Lender is zero. If the Note being prepaid was matched funded by the lender, the Prepayment-Premium will be equal to the amount calculated
above plus the prepayment fee incurred by the Lender to prepay its funding commitment to Its funding source. Except for the foregoing.
Borrower may pay all or a portion of the amount owed earlier than it is due. Early paymeM-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: Farmers and
Merchants Trust Company of Chambersburg, P. O. Box 6010 Chambersburg, PA 17201.6010.
LATE CHARGE. If a payment is 16 days or more late, Borrower will be charged 6.000% of the unpaid portion of the regularly scheduled
payment.
INTEREST AFTER DEFAULT. Upon default, including failure to pay noon final maturity, the interest rate on this Note shall be increased by
adding a 2.000 percentage point margin ("Default Rate Margin"). The Default Rate Margin shall also apply to each succeeding interest rate
change that would have applied had there been no default. After maturity, or after this Note would have matured had there been no default, the
Default Rate Margin will continue to apply to the final interest rate described in this Note. If judgment is entered in connection with this Note,
interest will continue to accrue after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the
interest rate exceed the maximum interest rate limitations under applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of Default") under this Note:
Payment Default. Borrower fails to make any payment when due under this Note.
Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in
any of the related documents or to comply with or to perform any term, obligation, covenant or-condition contained in any other agreement
between Lender and Borrower.
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. In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to
assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of
Default.
PROMISSORY NOTE
(Continued) Page 2
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
same provision of this Note within the preceding twelve (12) months, it may be cured if Borrower, after receiving written notice from
Lender demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) if the cure requires more than fifteen 115)
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 attorneys' fees and Lender's legal expenses, whether or
not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay
or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by
law.
JURY WAIVER, Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender
or Borrower against the other.
GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of
the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Note has been accepted by Lender in the
Commonwealth of Pennsylvania.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Franklin County,
Commonwealth of Pennsylvania.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $25.00 if Borrower makes a payment on Borrower's loan and the check or
preauthorized charge with which Borrower pays is later dishonored.
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, and, at Lender's option, to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff
rights provided in this paragraph.
ANNUAL FINANCIAL STATEMENT COVENANT. Borrower shall provide Lender, as soon as available but in no event later than thirty (30) days
after the applicable filing date for the tax reporting period ended, Federal and other governmental tax returns, prepared by a tax professional
satisfactory to Lender.
INTEREST RATE RENEGOTIATION. At the end of the initial fixed interest rate, at the sole and absolute option of Lender, the interest rate on the
Loan may be renegotiated for another fixed interest rate term, if Lender does not offer a new interest rate or Borrower does not accept the rate
as offered, the interest rate on the remaining principal balance will float at a variable rate of interest as stated above in "Payment" section
above.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives,
successors and assigns, and shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Lender may delay or forgo
enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses
this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this
Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether 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 pairty 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 determined to be unenforceable, it will not affect the enforceability of any
other provisions of this Note.
CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT
AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND
ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS
OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR
COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($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.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE
INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A
SEALED INSTRUMENT ACCORDING TO LAW,
BORROWER:
SHIPPENSB F NE SCE TER, INC. i?
BY; ISeall By: Seal)
art G. ZitaverPiPresidefrt of Shgrpensburg Fitness Heath E. Newell, Secret of Shippensburg Fitness
Center, Inc. Center, Inc.
DISCLV JRE FOR CONFESSION OF,. -)GMENT
Principal Loan Date
I Maturity Loan No Call / coil Account'- Officer_ -initials
S285,000.00 11-01-2006 1 1-01.2026_ ; : RE TAH
References it the shaded area 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.
Declarant: Shippensburg Fitness Center, Inc. (TIN: Lender: Farmers and Merchants Trust Company of
25-1482241) Chambersburg
117 West Burd Street Franklin County
Shippensburg, PA 17257 Chambersburg, PA
DISCLOSURE FOR CONFESSION OF JUDGMENT
LO
THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS DAY OF {1 w_ 200b, A
PROMISSORY NOTE FOR $285,000.00 OBLIGATING DECLARANT TO REPAY THAT AMOUNT.
A. THE UNDERSIGNED UNDERSTANDS THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT
LENDER TO ENTER JUDGMENT AGAINST DECLARANT IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO
DECLARANT AND WITHOUT OFFERING DECLARANT AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING
THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF
ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST DECLARANT UNDER THE NOTE, THE UNDERSIGNED, ON
BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO
ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING
JUDGMENT AGAINST-DECLARANT BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION.
INITIALS:
B. THE UNDERSIGNED FURTHER UNDERSTANDS THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST
DECLARANT WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE 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
DECLARANT'S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF
DECLARANT'S RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE
JUDGMENT, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE
RIGHTS, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN
ANY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING DECLARANT ANY ADVANCE NOTICE.
INITIALS: /
C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH
STATEMENT THAT APPLIES, THE UNDERSIGNED REPRESENTS THAT:
INITIALS
1. DECLARANT WAS REPRESENTED BY DECLARANT'S OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE
NOTE.
,r 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE TO
DECLARANT'S ATTENTION.
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:
SHIPWES R F !T ESS CENTER, INC.
By: (Seal)
Robert G. S aver, President of Shippensburg Fitness
Center, Incr.,
f
By: (Seal)
Newel , Secretar of Shippensburg Fitness
Center, Inc.
EXHIBIT "B"
COMMERCIAL GUARANTY
Prlti?vp?l c?air':8?t8 N?f3t y :zffiCC'CtUrt
' ? t1r=:: .... TRH
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.
Any item above containing "" has been omitted due to text length limitations.
Borrower: Shippensburg Fitness Center, Inc. (TIN: Lender: Farmers and Merchants Trust Company of
25.14822411 Chambersburg
117 West Burd Street Franklin County
Shippensburg, PA 17257 Chambersburg, PA
Guarantor: Robert G. Staver (SSN: 187-48-2929)
109 Foxcross Drive
Hendersonville, TN 37075
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, attorneys' tees,
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
apreements 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 advances or 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.
This Guaranty will cominue to bind Guarantor for all the Indebtedness incurred by Borrower or committed by Lender prior to receipt of
Guarantor's written notice of revocation, including any extensions, renewals, substitutions or modifications of the Indebtedness. All renewals,
extensions, substitutions, and modifications of the Indebtedness granted after Guarantor's revocation, are contemplated under this Guaranty
and, specifically will not be considered to be new 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 ($0.001, prior to Guarantor's written revocation of this Guaranty 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; (BI to after, 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; IF) to apply such security and direct the order or manner of sale thereof, including
without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion
may determine; (G) to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this
Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (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; (BI 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; 11) 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 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
COMMERCIAL GUARANTY
(Continued) Page 2
loans or obligations; (Cl to resort for payment or to proceed directly or at once against any person, meludino Borrower or any other guarantor;
U to Proceed directly against or exhaust any collateral held by Lender from Borrower, any ocher guarantor, or any otner 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 (G) to commit any
act or omission of any kind, or at any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any rights or
defenses arising by reason of (A) any "one action" or "anti-deficiency" law or any other law which may prevent Lender from bringing any
action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action,
either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement. including without limitation, any loss of
rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (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 parry, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment
to Borrower's trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors, the
Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty.
Guarantor further waives 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.
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
agrees, and Lender is hereby authorized, in the name of Guarantor, from time to time to file financing statements and continuation statements
and to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights
under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Guaranty. No 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 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
attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy
proceedings lincluding 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 Low. This Guaranty will be governed by federal law applicable to Lender and, to the extent not preempted by federal low, the
laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Guaranty has been accepted by Lender
in the Commonwealth of Pennsylvania.
Choice of Venue. If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Franklin
County, Commonwealth of Pennsylvania.
Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the
opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parol
evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses,
claims, damages, and costs (including Lender's attorneys' fees) suffered or incurred by Lender as a result of any breach by Guarantor of the
warranties, representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall
be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor"
respectively shall mean all and any one or more of them. The words 'Guarantor," "Borrower," and "Lender" include the heirs, successors,
assigns, and transferees of each of them. If a court finds that any provision of this Guaranty is not valid or should not be enforced, that
fact by 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 parry 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 Guaramy shall be binding upon Guaramor, and upon Guarantor's heirs, personal
representa-ives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns.
Waive Jury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either
Lender or Borrower against the other.
ANNUAL FINANCIAL STATEMENT COVENANT. Guarantor shall provide Lender with annual financial information (including, but not limited to, a
COMMERCIAL GUARANTY
(Continued) Page 3
personal financial statement and federal income tax return and all supporting schedufes thereto) within 120 days of year end.
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 content 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 Shippensburg Fitness Center, Inc. and includes all co-signers and co-makers signing the Note and
all their successors and assigns.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Robert G. Staver, and it 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 Farmers and Merchants Trust Company of Chambersburg, 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.
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 NOVEMBER 1, 2006.
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 t
X J? {Beall
AoblStaver
EXHIBIT CCU
COMMERCIAL GUARANTII
rnnicipal 1. Ii -UUM14MVP "It Lou n t.uu?tc - utuyct ttattal.?
RF..4 . T 4H
e J j s
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.
Any item above containing -- has been omitted due to text length limitations.
Borrower: Shippensburg Fitness Center, Inc. (TIN:
25-1482241)
117 West Burd Street
Shippensburg, PA 17257
Lender: Farmers and Merchants Trust Company of
Chambersburg
Franklin County
Chambersburg, PA
Guarantor: Heath E. Newell (SSN: 203-64.4270)
14 Irivin Drive
Shippensburg, PA 17257
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, 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
apreements 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 advances or 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.
This Guaranty will continue to bind Guarantor for all the Indebtedness incurred by Borrower or committed by Lender prior to receipt of
Guarantor's written notice of revocation, including any extensions, renewals, substitutions or modifications of the Indebtedness. All renewals,
extensions, substitutions, and modifications of the Indebtedness granted after Guarantor's revocation, are contemplated under this Guaranty
and, specifically will not be considered to be new 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), prior to Guarantor's written revocation of this Guaranty 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; IN to apply such security and direct the order or manner of sale thereof, including
without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion
may determine; (G) to sell, transfer, assign or grant participations in all or any part of the indebtedness; and (H) to assign or transfer this
Guaranty in whole or in 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 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; ICI 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; 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 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
COMMERCIAL GUARANTY
(Continued) Page 2
loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including %0ITOWer or any other guarantor;
ID) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (t) 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 (G) to commit any
act or omission of any kind, or at any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any rights or
defenses arising by reason of (A) any "one action" or "anti-deficiency" law or any other law which may prevent Lender from bringing any
action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action,
either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of
rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (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 guaramors 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 low 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.
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
agrees, and Lender is hereby authorized, in the name of Guarantor, from time to time to file financing statements and continuation statements
and to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights
under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Guaranty. No 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 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
attorneys' fees and 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. 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 wfthout regard to its conflicts of law provisions. This Guaranty has been accepted by Lender
in the Commonwealth of Pennsylvania.
Choice of Venue. if there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Franklin
County, Commonwealth of Pennsylvania.
Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the
opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parol
evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lander 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 any one or more of them. The words "Guarantor," "Borrower," and "Lender" include the heirs, successors,
assigns, and transferees of each of them. If a court finds that any provision of this Guaranty is not valid or should not be enforced, that
fact by itself will not mean that the rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of the
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 tender 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.
Waive Jury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either
Lender or Borrower against the other.
ANNUAL FINANCIAL STATEMENT COVENANT. Guarantor shall provide Lender with annual financial information (including, but not limited to, a
COMMERCIAL GUARANTY
(Continued) Page 3
personal financial statement and federal income tax return and all supporting schedules thereto) within 120 days Of year end.
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 Shippensburg Fitness Center, Inc. and includes all co-signers and cc-makers signing the Note and
all their successors and assigns.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Heath E. Newell, 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 Farmers and Merchants Trust Company of Chambersburg, 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.
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 NOVEMBER 1, 2006.
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 (Sea[)
Neat . Newell
EXHIBIT "D"
PROMISSORY NOTE
Principal Ltratttaate 14Qatttttiy, Loan N;1, .: ,alit`' ?YXfiGCttttt?>r8r ttititits '
S43,OQ4,OD D7 70 2fl07 ?#-7012072 ; a rear
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.
Any item above containing -•"" has been omitted due to text length limitations.
Borrower: Shippensburg Fitness Center, Inc. (TIN: Lender: Farmers and Merchants Trust Company of
25-1482241) Chambersburg
117 West Burd Street Franklin County Region
Shippensburg, PA 17257 20 South Main Street
Chambersburg, PA 17201
Principal Amount: $43,000.00 Date of Note: January 10, 2007
PROMISE TO PAY. Shippensburg Fitness Center, Inc. ("Borrower") promises to pay to Farmers and Merchants Trust Company of Chambersburg
("Lender"), or order, in lawful money of the United States of America, the principal amount of Forty-three Thousand & DOM00 Dollars
1543,000.00), together with interest on the unpaid principal balance from January 12, 2007, until paid in full.
PAYMENT. Borrower wig pay this loan in accordance with the following payment schedule: 59 monthly consecutive principal and interest
payments of $868.58 each, beginning February 10, 2007, with interest calculated on the unpaid principal balances at an initial discounted
interest rate of 7.750% per annum; and one principal and interest payment of $868.38 on January 10, 2012, with interest calculated on the
unpaid principal balances at an interest rate of 8.400% per annum. This estimated final payment is based on the assumption that all payments
will be made exactly as scheduled; the actual final payment will be for all principal and accrued interest not yet paid, together with any other
unpaid amounts under this Note. Unless otherwise agreed or required by applicable law, payments will be applied fast to any unpaid collection
costs; then to any late charges: then to any accrued unpaid interest: and then to principal. The annual interest rate for this Note is computed on
a 3651360 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: In the event any portion of the principal amount of the Note is
prepaid during the fixed-rate period of the Note, a Prepayment Premium shall be due and payable by the Borrower to the Lender. The
Prepayment Premium, calculated as of the prepayment date, will be equal to the present value of the remaining scheduled payments of principal
and interest. The discount rate used to calclulate the present value wig be equal to the interest rate that would be charged for a new ban of
like kind and quality with a fixed rate period equal to the remaining fixed rate period for the original loan. If the calculated Prepayment Premium
exceeds the principal amount being prepaid, then this excess amount will be due to the Lender. If the calculated Prepayment premium is equal
to or less than the principal amount being paid, then the amount due to the Lender is zero. If the Note being prepaid was matched funded by
the Lender, the Prepayment Premium wig be equal to the amount calculated above plus the prepayment fee incurred by the Lender to prepay its
funding commitment to its funding source. 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: Farmers and Merchants Trust Company of Chambersburg, P. O. Box 6010
Chambersburg, PA 17201-6010.
LATE CHARGE. If a payment is 16 days or more late, Borrower will be charged 6.000% of the unpaid portion 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
adding a 2.000 percentage point margin ("Default Rate Margin"). The Default Rate Margin shall also apply to each succeeding interest rate
change that would have applied had there been no default. After maturity, or after this Note would have matured had there been no default, the
Default Rate Margin will continue to apply to the final interest rate described in this Note. If judgment is entered in connection with this Note,
interest will continue to accrue after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the
interest rate exceed the maximum interest rate limitations under applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of Default") under this Note:
Payment Default. Borrower fails to make any payment when due under this Note.
Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in
any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement
between Lender and Borrower.
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. In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to
assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of
Default.
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 Nate 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
same prevision of this Note within the preceding twelve 1121 months, it may be cured if Borrower, after receiving written notice from
Lender demanding cure of such default: 01 cures the default within fifteen (15) days; or (2) if the cure requires more than fifteen (151
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 attorneys' fees and Lender's legal expenses, whether or
not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay
PROMISSORY NOTE
(Continued) Page 2
or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any eoutt costs. in addition to all nther corn- ,.tdod b,,
law.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender
or Borrower against the other.
GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of
the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Note has been accepted by Lender in the
Commonwealth of Pennsylvania.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Franklin County,
Commonwealth of Pennsylvania.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of 825.00 if Borrower makes a payment on Borrower's loan and the check or
preauthorized charge with which Borrower pays is later dishonored.
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, and, at Lender's option, to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff
rights provided in this paragraph.
ANNUAL FINANCIAL STATEMENT COVENANT. Borrower shall provide Lender, as soon as available but in no event later than thirty (30) days
after the applicable filing date for the tax reporting period eneded, Federal and other governmental tax returns, prepared by a tax professional
satisfactory to Lender.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives,
successors and assigns, and shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Lender may delay or forgo
enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses
this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this
Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether 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 determined to be unenforceable, it will not affect the enforceability of any
other provisions of this Note.
CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT
AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND
ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS
OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR
COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (8500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR
MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL
BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE
EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN
FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A
HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER
SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN
REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
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:
SHIPPENS N S _..' R, INC.
-(Seal)
Robe G. Stever, President of Shippensburg Fitness
Center, Inc.
By` !Beall
RUM E. News , Seeretar of Shrppensburg Fitness
Center, Inc.
LENDER:
FARMERS AND MERCHANTTSS TRUST COMPPANNYu OF CHAMBERSBURG
?a fX ke
X Tr-i9b A. Hank AssrstaM ice
President
?e Gv. rti?W i+,Mw. ae. ,Nl, rOT. M wqw 11?w1. e. .,:,r _ KFC 1Ff IrC+ M.s
DISCLL JRE FOR CONFESSION OF , JGMENT
Principal Loan Date Maturity Loan No call i'coa Account Officer ltiitielS
$43,000.00 - 01-IG-2007 01-10-2012 RE' TAH
L 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.
Any item above containing """' has been omitted due to text length limitations.
Declarant: Shippensburg Fitness Center, Inc. (TIN: Lender: Farmers and Merchants Trust Company of
25-1482241) Chambersburg
117 West Surd Street Franklin County Region
Shippensburg, PA 17257 20 South Main Street
Chambersburg. PA 17201
DISCLOSURE FOR CONFESSION OF JUDGMENT
THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS IL _ DAY OF "01 1 A
P .06'eGSORY NOTE FOR c433,000-00 OSLICATING DECLARANT TO REPAY THAT AMOUNT. I
A. THE UNDERSIGNED UNDERSTANDS THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT
LENDER TO ENTER JUDGMENT AGAINST DECLARANT IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO
DECLARANT AND WITHOUT OFFERING DECLARANT AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING
THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF
ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST DECLARANT UNDER THE NOTE, THE UNDERSIGNED, ON
BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO
ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING
JUDGMENT A AI STgD`ECLARANT BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION.
INITIAL
C-kQ
ieC
S. THE UNDERSIGNED FURTHER UNDERSTANDS THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST
DECLARANT WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE 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
DECLARANT'S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE NOTE. BEING FULLY AWARE OF
DECLARANT'S RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE
JUDGMENT. THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE
RIGHTS, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN
ANY MANN,=_r RMITTE BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING DECLARANT ANY ADVANCE NOTICE.
INITIAL(y.
C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH
STATEMENT THAT APPLIES, THE UNDERSIGNED REPRESENTS THAT:
1. DECLARANT WAS REPRESENTED BY DECLARANT'S OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE
NOTE.
2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE TO
DECLARANT'S ATTENTION.
DISCL URE FOR CONFESSION OF JUD ENT
(Continued) Page 2
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:
SHIPPENSB G Fl NE S CENTER, INC.
By ISeall
S si dent of Ship eruburg Russ
By:.. (Seal)
H Newell, Secretary f Shippensburg Fitness
Center, Inc.
41
EXHIBIT "E"
COMMERCIAL GUARANTY
Principal Loan Date Maturity' 1 Laaln No CatF$ op Mint Qfi#lG@C It ittdi5 r
ffE ,# .
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.
Any item above containing ""`"" has been omitted due to text length limitations.
Borrower: Shippensburg Fitness Center, Inc. (TIN: Lender: Farmers and Merchants Trust Company of
25.1482241) Chambersburg
117 West Surd Street Franklin County Region
Shippensburg, PA 17257 20 South Main Street
Chambersburg, PA 17201
Guarantor: Robert G. Staver ISSN: 187-48-2929)
109 Foxcross Drive
Hendersonville, TN 37075
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, 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
apreements 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 otherwisel; 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 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 (90.00).
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authori2es 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; (GI to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this
Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) 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; (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 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;
COMMERCIAL GUARANTY
(Continued) Page 2
(D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or anv other persons 1F1 fn P;,-
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 (G) to commit any
act or omission of any kind, or at any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any rights or
defenses arising by reason of (A) any "one action" or 'anti-deficiency' law or any other law which may prevent Lender from bringing any
action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action,
either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of
rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (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.
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 Borrover, 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 the name of Guarantor, from time to time to file financing statements and continuation statements
and to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights
under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Guaranty. No 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 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
attorneys' fees and 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-jvdgmem 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. This Guaranty has been accepted by Lender
in the Commonwealth of Pennsylvania.
Choice of Venue. If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Franklin
County, Commonwealth of Pennsylvania.
Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the
opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parol
evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses,
claims, damages, and costs (including Lender's attorneys' fees) suffered or incurred by Lender as a result of any breach by Guarantor of the
warranties, representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall
be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is 'executed by more than one Guarantor, the words "Borrower" and "Guarantor"
respectively shall mean all and any one or more of them. The words "Guarantor," "Borrower,' and "Lender" include the heirs, successors,
assigns, and transferees of each of them. If a court finds that any provision of this Guaranty is not valid or should not be enforced, that
fact by 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 parry'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.
Waive Jury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either
Lender or Guarantor against the other.
ANNUAL FINANCIAL STATEMENT COVENANT. Guarantor shall provide Lender with annual financial information (including, but not limited to, a
personal financial statement and federal income tax return and all supporting schedules thereto) within 120 days of year end.
COMMERCIAL GUARANTY
(Continued) Page 3
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used to tnis 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
eef,ned in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word "Borrower" means Shippensburg Fitness Center, Inc. and includes all co-signers and co-makers signing the Note and
all their successors and assigns.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Robert G. Stever, 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 Farmers and Merchants Trust Company of Chambersburg, its successors and assigns.
Note. -he word "Note" means and includes without limitation all of Borrower's promissory notes and/or credit agreements evidencing
Borrovver's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, censolidanons
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
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFT ER 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.
Tne lien arisng from any judgment confessed or entered pursuant to the foregoing authority shall not extend to any of Guarantor's residential
real property as that term is defined in the Pennsylvania Act of January 30, 1974 (Pa. Laws 13, No. 61, referred to as the Loan Interest and
Protection Law, as amended, and the holder of any judgment confessed or entered pursuant to the forgoing authority shall not, in enforcement
of any such judgment, execute, levy or otherwise proceed against any such residential real property; provided, however, that the lien of such
judgment shall extend to such residential real property and that the holder thereof shall be permitted to execute, levy or proceed against such
residential real property from and after the entev of a judgment as contemplated by Section 407 of such Loan Interest and Protection Law and
Rules 298' to 2966 of the Pennsylvania Rules of Civil Procedure, or successor or similar statutes and rules. No limitation of lien or any
execution, levy or other enforcement contained in the immediately preceding sentence shall apply with respect to any judgment. obtained other
,han by the foregoing authority to confess or enter judgment.
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 JANUARY 10, 2007.
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
_ (Seal)
Robe t G. Sta r
EXHIBIT "F"
COMMERCIAL GUARANTY
Principal Loan Date Maturity L atY"1?fo [afE=, CAP` ACCi7 Rt ' (C c ittRiBtS
R=_ TAH
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.
Any item above containing has been omitted due to text length limitations.
Borrower: Shippensburg Fitness Center, Inc. ITIN: Lender: Farmers and Merchants Trust Company of
25-1482241) Chambersburg
117 West Burd Street Franklin County Region
Shippensburg, PA 17257 20 South Main Street
Chambersburg, PA 17201
Guarantor: Heath E. Newell (SSN: 203-64-4270)
14 Irivin Drive
Shippensburg, PA 17257
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionally
guarantees ful 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, 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
apreements 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 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 (60.00).
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
Guaranty in whole or in part.
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;
(Di 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 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;
COMMERCIAL GUARANTY
(Continued) Page 2
(D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (Ei 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; (FI to pursue any other remedy within Lender's power; or (G) to commit any
act or omission of any kind, or at any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any rights or
defenses arising by reason of (Al 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; (BI 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 (`r) 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.
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
agrees, and Lender is hereby authorized, in the name of Guarantor, from time to time to file financing statements and continuation statements
and to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights
under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Guaranty. No 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 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
attorneys' fees and 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. 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 appgcable 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 Guaranty has been accepted by Lender
in the Commonwealth of Pennsylvania.
Choice of Venue. If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Franklin
County, Commonwealth of Pennsylvania.
Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the
opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parol
evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses,
claims, damages, and costs (including Lender's attorneys' fees) suffered or incurred by Lender as a result of any breach by Guarantor of the
warranties, representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall
be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor"
respectively shall mean all and any one or more of them. The words "Guarantor," "Borrower," and "Lender" include the heirs, successors,
assigns, and transferees of each of them. If a court finds that any provision of this Guaranty is not valid or should not be enforced, that
fact by 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.
Waive Jury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either
Lender or Guarantor against the other.
ANNUAL FINANCIAL STATEMENT COVENANT. Guarantor shall provide Lender with annual financial information (including, but not limited to, a
personal financial statement and federal income tax return and all supporting schedules thereto) within 120 days of year end.
COMMERCIAL GUARANTY
(Continued) Page 3
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
del:=,.ned in this Guaranty shall have The meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word "Borrower" means Shippensburg Fitness Center. Inc. and includes all co-signers and co-makers signing the Note and
all -nel- successors and assigns.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Heath E. Newell, and in each case,
any signers 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 Farmers and Merchants Trust Company of Chambersburg, its successors and assigns.
Note. The word "Note" means and includes without limitation all of Borrower's promissory notes andior 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
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 110%? OF THE UNPAID
PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS 1$5001
ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR
A COPY OF TH!S 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.
Tne lien arising from any judgment confessed or entered pursuant to the foregoing authority shall not extend to any of Guarantor's residential
real property as that term is defined in the Pennsylvania Act of January 30, 1974 (Pa. Laws 13, No. 6), referred to as the Loan Interest and
Protection Law, as amended, and the holder of any judgment confessed or entered pursuant to the forgoing authority shall not, in enforcement
of any such judgment, execute, levy or otherwise proceed against any such residential real property; provided, however, that the lien of such
juogment shall extend to such residential real property and that the holder thereof shall be permitted to execute, levy or proceed against such
residential real property from and after the entry of a judgment as contemplated by Section 407 of such Loan Interest and Protection Law and
Rules 2987, to 2986 of the Pennsylvania Rules of Civil Procedure, or successor or similar statutes and rules. No limitation of lien or any
execution, levy or other enforcement contained in the immediately preceding sentence shall apply with respect to any judgment obtained other
than by the foregoing authority to confess or enter judgment.
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 JANUARY 10. 2007.
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) ISeall
THeath E. well
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST CIVIL DIVISION
COMPANY OF CHA.MBERSBURG,
Plaintiff, NO.:
Vs.
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL,
Defendants.
VERIFICATION
I, William A. Pryor, on behalf of Farmers and Merchants Trust Company of
Chambersburg depose and say subject to the penalties of l$ Pa.C.S.-A., sec.4904 relating to
unworn falsification to authorities that the facts set forth in the foregoing pleading are true and
correct to the best of my information, knowledge and belief.
.
By
r
Name: William A. P Mr
Title:_ Vice-President Credit Recovery Manager
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST CIVIL DIVISION
COMPANY OF CHAMBERSBURG,
Plaintiff, NO.: /a - /5 Civil Yelp
VS.
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL, C
Defendants. aM ? F
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AFFIDAVIT OF NON-MILITARY SERVICE
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COMMONWEALTH OF PENNSYLVANIA
SS: N)
COUNTY OF DAUPHIN :
I, Scott A. Dietterick, Esquire and/or Kimberly A. Bonner, Esquire, attorneys for and
authorized representative of Plaintiff, Farmers and Merchants Trust Company of Chambersburg,
hereby certify, subject to the penalties of 18 Pa.C.S.A. §4904, that the Defendants, are not in the
military service of the United States of America to the best of my
belief.
Scott A.,
Kimberl
SWORN TO AND SUBSCRIBED BEFORE ME THIS
27th day of February, 2012.
1SaA,._(DCT-
Notary Public
My Commission Expires:
NOTARIAL SEAL
CHRISTINE L SPURLOCK
Notary Public
HUMMELSTOWN BORO, DAUPHIN COUNTY
My Commission Expires Jun 23, 2012
information and
Esquire
r, Esquire
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST CIVIL DIVISION
COMPANY OF CHAMBERSBURG,
Plaintiff, NO.: /oR -/Sit 0,1vi l TePik
VS.
: IC-D
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL, zm m -?-°
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Defendants
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.
CERTIFICATION OF ADDRESS
I hereby certify that the address of the parties in the above action are as follows: ==+ --
Address of Plaintiff-
P.O. Box 6010, Chambersburg, PA 17201
Address of Defendants:
Shippensburg Fitness Center, Inc.
117 West Burd Street, Shippensburg, PA 17257
Robert G. Staver
109 Foxcross Drive, Hendersonville, TN 37075
Heath E. Newell
14 Irvin Drive, Shippensburg, PA 17257
JAMES, SMITH, AF*ERICK & CONNELLY LLP
BY:
Scott ? Esquire
PA I.D. 5 0 V
Kimberly A. onner, Esquire
PA I.D #89705
Attorneys for Plaintiff
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST CIVIL DIVISION
COMPANY OF CHAMBERSBURG,
Plaintiff, NO.: /a - /Sit Crvi ITS 'M
vs.
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL,
Defendants.
NOTICE UNDER RULE 2958.1 -v3 rZa --q
OF JUDGMENT AND EXECUTION THEREON zM S* r n: T°
Notice of Defendant's Rights OD SF
To: Shippensburg Fitness Center, Inc. 3
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117 West Burd Street --
F5
Shippensburg, PA 17257 r ='
v
A judgment in the amount of $315,544.78 has been entered against you and 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.
t
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
NOTICE TO DEFEND & LAWYER REFERRAL SERVICE
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
Phone (717) 249-3166
(800) 990-9108
Respectfully Submilep
JAMES, SMITH, DI? 9-*jK & CONNELLY LLP
By:
Scott A.
Attorne} I.]V #`55650
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST CIVIL DIVISION
COMPANY OF CHAMBERSBURG,
NO.: aivi! terk
Plaintiff,
vs.
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL,
C:
Defendants. -OZ ;z -.
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NOTICE UNDER RULE 2958.1 X X =0
OF JUDGMENT AND EXECUTION THEREON co
o ,
Notice of Defendant's Rights z a °a
W
To: Robert G. Staver
109 Foxcross Drive
Hendersonville, TN 37075
A judgment in the amount of $315,544.78 has been entered against you and 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
NOTICE TO DEFEND & LAWYER REFERRAL SERVICE
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
Phone (717) 249-3166
(800) 990-9108
Respectfully Submitted:
JAMES, SMITH, DIETTf RI jK & CONNELLY LLP
By:
Scott A./bi ck, V
Attorney I. 55650
P.O. Box 6
Hershey, PA 17033
(717) 533-3280
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST
COMPANY OF CHAMBERSBURG,
Plaintiff,
vs.
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAYER and HEATH E. NEWELL,
CIVIL DIVISION
NO.: /ol- /S/
Defendants. c7'
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NOTICE UNDER RULE 2958.1 rnM r q
OF JUDGMENT AND EXECUTION THEREON X
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Notice of Defendant's Rights r --
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C"?
To: Heath E. Newell
CZ)
14 Irvin Drive ..,,
Shippensburg, PA 17257 '
A judgment in the amount of $315,544.78 has been entered against you and 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.
N
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
NOTICE TO DEFEND & LAWYER REFERRAL SERVICE
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
Phone (717) 249-3166
(800) 990-9108
Respectfully Subnji?eq
JAMES, SMITH, D T RICK & CONNELLY LLP
By:
S tt D" k, Esquire
Attorne #55650
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST CIVIL DIVISION
COMPANY OF CHAMBERSBURG,
Plaintiff, NO.: 161 -1511 Nl'/Terlo
vs.
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL,
Defendants.
NOTICE OF ORDER, DECREE OR JUDGMENT
TO: ( ) Plaintiff
(X) Defendant - SHIPPENSBURG FITNESS CENTER, INC.
( ) Additional Defendant(s)
You are hereby notified that an Order, Decree or Judgment was entered in the
above-captioned proceeding on A81/a
( ) A copy of the Order or Decree is as follows:
or
(X) The judgment is as follows: $315,544.78
plus interest on the principal sum ($272,054.42) from March 15, 2012, at the contractual rate,
plus additional late charges and additional attorneys' fees and costs.
Prothonotary
??„ ?;,
.. ?,,?
.., .
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST CIVIL DIVISION
COMPANY OF CHAMBERSBURG, :
Plaintiff, NO.: 1A - /5// C IV I Try
vs.
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL,
Defendants.
NOTICE OF ORDER, DECREE OR JUDGMENT
TO: ( ) Plaintiff
(X) Defendant - ROBERT G. STAVER
( ) Additional Defendant(s)
You are hereby notified that an Order, Decree or Judgment was entered in the
above-captioned proceeding on 3
( ) A copy of the Order or Decree is as follows:
or
(X) The judgment is as follows: $315,544.78
plus interest on the principal sum ($272,054.42) from March 15, 2012, at the contractual rate,
plus additional late charges and additional attorneys' fees and costs.
J ob
Jonotary
?g?
y ?.
# ? „4
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FARMERS AND MERCHANTS TRUST CIVIL DIVISION
COMPANY OF CHAMBERSBURG, :
Plaintiff, NO.: /01 --l-em
vs.
SHIPPENSBURG FITNESS CENTER, INC.,
ROBERT G. STAVER and HEATH E. NEWELL,
Defendants.
NOTICE OF ORDER, DECREE OR JUDGMENT
TO: ( ) Plaintiff
(X) Defendant - HEATH E. NEWELL
( ) Additional Defendant(s)
You are hereby notified that an Order, Decree or Judgment was entered in the
above-captioned proceeding on
( ) A copy of the Order or Decree is as follows:
or
(X) The judgment is as follows: $315,544.78
plus interest on the principal sum ($272,054.42) from March 15, 2012, at the contractual rate,
plus additional late charges and additional attorneys' fees and costs.
w
low
Prothonotary
*'
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
Farmers and Merchants Trust Co. of Chambersburg
vs.
Shippensburg Fitness Center, Inc. (et al.)
????ytt?' a) ?.ltrrtjit'P?? ] r ?) F t ?
11? .
SHERIFF'S RETURN OF SERVICE
Case Number
2012-1511
03/16/2012 02:10 PM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on March 16,
2012 at 1410 hours, he served a true copy of the within Notice Under Rule 2958.1 and Confession of
Judgment, upon the within named defendant, to wit: Shippensburg Fitness Center, Inc., by making known
unto Tony Giannini, adult in charge at Shippensburg Fitness Center, Inc. at 117 W. Burd Street,
Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time handing to hinr
personally the said true and correct copy of the same.
N &H CLINE, DEPUTY
04/02/2012 01:40 PM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on March 2,
2012 at 1340 hours, he served a true copy of the within Notice Under Rule 2958.1 and Confession of
Judgment, upon the within named defendant, to wit: Heath E. Newell, by making known unto himself
personally, at 14 Irvin Drive, Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at
the same time handing to him personally the said true and correct copy of the same.
NOAH CLINE, DEPUTY
SHERIFF COST: $84.00
April 03, 2012
,-.,: lit ._.
SO ANSWERS,
RON R ANDERSON, SHERIFF