HomeMy WebLinkAbout12-2397IN THE COURT OF COMMON PALS
CUMBERLAND COUNTY PENNSY } 'Ai C?r.
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A., d--'> 7 7
Plaintiff, NO.: d6,;
vs.
STEVE J. YANEK, JR. and EDIE J. YANEK,
Defendants.
CONFESSION OF JUDGMENT
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Pursuant to the authority contained in the aforesaid Guaranties, 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 $ 135,005.43
Interest through 2/27/2012 $ 1,159.42
Late Charges $ 6,801.22
Letter of Credit $ 29,201.50
Attorneys' Fees & Costs $ 13,616.48
(10% of Unpaid Principal & Interest)
TOTAL $ 185,784.05
plus interest on the principal sum ($135,005.43) from February 27, 2012, at the rate of $33.29
per diem.
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COUNT II:
Principal $ 304,268.83
Interest through 2/27/2012 $ 3,717.96
Late Charges $ 130.96
Expenses $ 1,360.00
Other Fees $ 50.50
Attorneys' Fees & Costs $ 30,798.67
(10% of Unpaid Principal & Interest)
TOTAL $ 340,326.92
plus interest on the principal sum ($304,268.83) from February 27, 2012, at the rate of $75.02
per diem.
Grand Total: $ 526,110.97
JAMES, SMI ?,
& CONN P
BY: / 1 / `---Y/
Scott A. Diefterick, Esquire
Attorneys for Defendants
PRO HAC VICE
PA I.D. # 55650
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
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IN THE COURT OF COMMON PLEAS OF =' ' ''
CUMBERLAND COUNTY, PENNSYLVANIA
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION _., _>
Harrisburg, N.A.,
Plaintiff, NO.. -a
Vs.
STEVE J. YANEK, JR. and EDIE J. YANEK,
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 Metro Bank f/k/a Commerce Bank/
FROM SERVICE, HEREOF OR A DEFAULT JUDGMENT Harrisburg, N.A., Plaintiff
MAY BE TE AINST YOU.
COUNSEL OF RECORD FOR
?I THIS PARTY:
Scott A. Dietterick, Esquire
ATTOP Y FOR PLAINTIFF Pa. I.D. #55650
I HEREBY CERTIFY THAT THE ADDRESS
OF THE PLAINTIFF IS: JAMES, SMITH, DIETTERICK &
3801 Paxton Street CONNELLY LLP
Harrisburg, PA 17111 P.O. Box 650
AND THE DEFENDANT(S): Hershey, PA 17033
8 South Rid a Road (717) 533-3280
Boiling Sprigs, A-7N07
ATTORNEY FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A.,
Plaintiff, NO.:
VS.
STEVE J. YANEK, JR. and EDIE J. YANEK,
Defendants.
CIVIL ACTION - COMPLAINT IN CONFESSION OF JUDGMENT
And now comes Metro Bank f/k/a Commerce Bank/Harrisburg, N.A., by its attorneys,
James, Smith, Dietterick & Connelly, LLP, and files this Complaint in Confession of Judgment
as follows:
1. Metro Bank f/k/a Commerce Bank/Harrisburg, N.A. ("Plaintiff') is a financial
institution under the laws of the United States of America, with its principal place of business
located at 3801 Paxton Street, Harrisburg, Pennsylvania 17111.
2. The Defendants, Steve J. Yanek, Jr. and Edie J. Yanek, are adult individuals who
reside at 8 South Ridge Road, Boiling Springs, Pennsylvania 17007.
3. On or about June 26, 2006, Yanek Custom Homes, Inc., executed and delivered a
certain Promissory Note in favor of Plaintiff in the original principal amount of $1,300,000.00
("$1.3 Million Note"). A copy of said $1.3 Million Note is marked Exhibit "A", attached hereto
and made a part hereof.
4. On or about November 1, 2010, Yanek Custom Homes, Inc., executed and
delivered a certain Promissory Note in favor of Plaintiff in the original principal amount of
$416,250.00 ("$416K Note" hereinafter, from time to time, collectively referred to with the $1.3
Million Note as the "Notes"). A copy of said $416K Note is marked Exhibit "B", attached
hereto and made a part hereof.
5. On or about June 26, 2006, Defendant, Steve J. Yanek, Jr. ("Mr. Yanek"),
executed and delivered to Plaintiff a Commercial Guaranty ("Mr. Yanek Guaranty") irrevocably
guarantying and becoming surety for all past, present and future obligations of Yanek Custom
Homes, Inc., to Plaintiff, including the Notes, which Mr. Yanek Guaranty authorized a
Confession of Judgment against Mr. Yanek. A true and correct copy of the Mr. Yanek Guaranty
is marked Exhibit "C", attached hereto and made a part hereof.
6. On or about June 26, 2006, Defendant, Edie J. Yanek ("Mrs. Yanek"), executed
and delivered to Plaintiff a Commercial Guaranty ("Mrs. Yanek Guaranty", collectively referred
to with the Mr. Yanek Guaranty as the "Guaranties") irrevocably guarantying and becoming
surety for all past, present and future obligations of Yanek Custom Homes, Inc., to Plaintiff
including the Notes, which Mrs. Yanek Guaranty authorized a Confession of Judgment against
Mrs. Yanek. A true and correct copy of the Mrs. Yanek Guaranty is marked Exhibit "D",
attached hereto and made a part hereof.
COUNTI
Confession of Judgment of the Guaranties under the $1.3 Million Note
7. Plaintiff hereby incorporates by reference its averments in Paragraphs 1 through 6
as if set forth fully herein.
The Guaranties have not been released, transferred or assigned.
9. Judgment has not been entered against the Defendants on the Guaranties in any
jurisdiction.
10. Defendants are in default under the aforesaid Guaranties, for failure to pay
installments of principal and interest when due.
11. The judgment is not being entered by confession against a natural person in
connection with a consumer credit transaction.
12. The itemization of the amount due, including interest and attorneys' fees as
authorized by the Guaranties, as follows:
Principal $ 135,005.43
Interest through 2/27/2012 $ 1,159.42
Late Charges $ 6,801.22
Letter of Credit $ 29,201.50
Attorneys' Fees & Costs $ 13,616.48
(10% of Unpaid Principal & Interest)
TOTAL $ 185,784.05
plus interest on the principal sum ($135,005.43) from February 27, 2012, at the rate of $33.29
per diem.
WHEREFORE, Plaintiff as authorized by the Guaranties, demands judgment against the
Defendants in the amount of $185,784.05 with interest on the principal sum ($135,005.43) from
February 27, 2012 at the contractual rate.
COUNT II
Confession of Judgment of the Guaranties under the $416K Note
13. Plaintiff hereby incorporates by reference its averments in Paragraphs 1 through
12 as if set forth fully herein.
14. The Guaranties have not been released, transferred or assigned.
15. Judgment has not been entered against the Defendants on the Guaranties in any
jurisdiction.
16. Defendants are in default under the aforesaid Guaranties, for failure to pay
installments of principal and interest when due.
17. The judgment is not being entered by confession against a natural person in
connection with a consumer credit transaction.
16. The itemization of the amount due, including interest and attorneys' fees as
authorized by the Guaranties, as follows:
Principal $ 304,268.83
Interest through 2/27/2012 $ 3,717.96
Late Charges $ 130.96
Expenses $ 1,360.00
Other Fees $ 50.50
Attorneys' Fees & Costs $ 30,798.67
(10% of Unpaid Principal & Inferest)
TOTAL $ 340,326.92
plus interest on the principal sum ($304,268.83) from February 27, 2012, at the rate of $75.02
per diem.
WHEREFORE, Plaintiff as authorized by the Guaranties, demands judgment against the
Defendants in the amount of $340,326.92 with interest on the principal sum ($304,268.83) from
February 27, 2012 at the contractual rate.
WHEREFORE, Plaintiff as authorized by the Guaranties, demands judgment in its favor
and against Defendants in the total sum of $526,110.97 with interest on the principal sum
($439,274.26) from February 27, 2012 at the contractual rate, and brings said instrument to Court
to recover the said sum.
JAMES,
& CONP
BY:
Scott A. Di tte ' k,
Attorneys for P faint
PA I.D. # 55650
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: Yanek Custom Homes, Inc. (TIN: 25-1857837)
8 South Ridge Road
Boiling Springs, PA 17007
Lender: COMMERCE BANK/HARRISBURG N.A.
COMMERCIAL MORTGAGE DEPARTMENT
3801 PAXTON STREET
HARRISBURG, PA 17111
Principal Amount: $1,300,000.00 Initial Rate: 9.000% Date of Note: June 26, 2006
PROMISE TO PAY. Yanek Custom Homes, Inc. ("Borrower") promises to pay to COMMERCE BANKIHARRISBURG N.A. ("Lender"), or order, in
lawful money of the United States of America, the principal amount of One Minion Three Hundred Thousand & 001100 Dollars ($1,300,000.00)
or so much as may be outstanding, together with interest on the unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in accordance with the following payment schedule:
Borrower will pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning July 26, 2006, with all
subsequent interest payments due on the same day of each month after that. Additionally, Borrower will pay to Lender, upon the sale of
each lot, a lot release sum of $30,000.00 plus 100% if vertical construction costs, not to exceed $139,600.00 per unit on the revolving
portion of this loan facility. If not sooner paid, Borrower will pay this loan in one payment of all outstanding principal plus accrued unpaid
interest on July 26, 2008.
Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest; then to principal; then to
any unpaid collection costs; and then to any late charges. The annual interest rate for this Note is computed on a 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. The interest rate on this Note is subject to change from time to time based on changes in an independent index
which is the Prime Rate as published in the Money Rate Section of the Wall Street Journal. If a range of rates is published, the highest will be
used. (the "Index") 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 daily. Borrower understands that Lender may make loans
based on other rates as well. The Index currently is 8.000% per annum. The interest rate to be applied to the unpaid principal balance during
this Note will be at a rate of 1.000 percentage point over the Index, resulting in an initial rate of 9.000% per annum. NOTICE: Under no
circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable iaw.
PREPAYMENT. 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. Except for the
foregoing, Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed
to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments of accrued unpaid interest. Rather, early
payments will reduce the principal balance due. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or
similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower
will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check
or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other
conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: COMMERCE BANK.'HARRISBURG N.A.,
COMMERCIAL MORTGAGE DEPARTMENT, 3801 PAXTON STREET, HARRISBURG, PA 17111.
INTEREST RESERVES. Borrower authorizes Lender to place $60,000.00 of the Principal Amount as an interest reserve, which is an estimate of
the interest due on the Note ("Interest Reserve").. All interest payments shall be paid from the Interest Reserve. Lender may automatically
deduct accrued unpaid interest from the Interest Reserve. Interest will accrue, as described in this Note, on amounts deducted from the Interest
Reserve. In the event the interest due under this Note exceeds the Interest Reserve, Borrower will pay accrued unpaid interest when due
according to the terms of this Note. Upon maturity, Lender will not advance or disburse the remaining Interest Reserve, if any, to Borrower.
The principal due upon maturity will not include any remaining Interest Reserve.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by
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. 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.
Environmental Default. Failure of any party to comply with or perform when due any term, obligation, covenant or condition contained in
any environmental agreement executed in connection with any loan.
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
PROMISSORY NOTE
Loan No: 3410850 (Continued) Page 2
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 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 (15)
days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter
continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal
balance under this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay
Lender that amount. This includes, subject to any limits under applicable law, Lender's 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.
GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of
the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Note has been accepted by Lender in the
Commonwealth of Pennsylvania.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether
checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may
open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by
law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any
and all such accounts.
COLLATERAL. Borrower acknowledges this Note is secured by Titled insured First lien mortgage on the 1.5 acre lot located at the corner of
South Ridge Road and Route 174 in South Middleton Township, Cumberland County.
LINE OF CREDIT. This Note evidences a straight line of credit. Once the total amount of principal has been advanced, Borrower is not entitled
to further loan advances. Borrower agrees to be liable for all sums either. (A) advanced in accordance with the instructions of an authorized
person or (B) credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this Note at any time may be
evidenced by endorsements on this Note or by Lender's internal records, including daily computer print-outs.
POST CLOSING COMPLIANCE. Borrower agrees to execute, re-execute, cause a Guarantor(s) or other third party(ies) involved in the loan
transaction to execute and/or re-execute and to deliver to Lender or its legal counsel, as may be deemed appropriate, any document or
instrument signed in connection with the Loan which was incorrectly drafted and/or signed, as well as any document or instrument which
should have been signed at or prior to the closing of the Loan, but which was not so signed and delivered. Borrower agrees to comply with any
written request by Lender within ten (10) days after receipt by Borrower of such request. Failure to Borrower to so comply shall, at the option
of Lender, upon notice to Borrower, constitute an event of default under the Loan.
COMMITMENT LETTER COMPLIANCE.. This loan is contingent upon Borrower's compliance with all of the terms and conditions in the
commitment letter issued by Lender to Borrower on or about June 23, 2006. Upon breach of any term of condition therein Lender shall have
the right to declare this loan in default and demand payment in full of the principal balance remaining unpaid, together with all interest, which
shall have accrued thereon. .
REQUIRED DEPOSIT ACCOUNT. Borrower and guarantor(s) shall be required to establish and maintain primary deposit account relationship with
Commerce Bank.
COLLATERALIZEDICROSS DEFAULTED. This loan is Cross Collateralized/Cross Defaulted with other loans for Borrower.
CONSTRUCTION REQUIREMENTS. Borrower shall provide to Bank the copies of the following items: Building plans, cost breakdown,
specification listing, all required building permits and evidence of Builder's Risk insurance naming Bank as additional insured and must contain
the standard mortgagee's clause.
ADDITIONAL PROVISIONS. 1. Assignment of declarent rights for collateral property. 2. Principal pay downs of $30M each will be required
upon the sale of each unit. 3. No more than 2 presold units and 1 unit under contract shall be permitted at any point in time. 4. In the event 3
units are sold with a 4th under contract, borrower may begin construction in Phase 11.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives,
successors and assigns, and shall inure to the benefit of Lender and its successors and assigns.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIE Please notify us if we report any inaccurate
information about your account(s) to a can or reporting agency. Your written notice describi he specific inaccuracyfies) should be sent to
us at -he following address: COMMERCE 13 .!HARRISBURG N.A. LOAN SERVICING 3801 PA: N STREET HARRISBURG, PA 17111.
PROMISSORY NOTE
Loan No: 3410850 (Continued) Page 3
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 ($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:
YANEK CUSTOM HOMES,
(Seal)
Steve Ya President of Yanek Custom
Hom 4.14
Ind:
USER PRO L n q. YS. 5 31.90.001 Cap. ? Fn?ni7M S W6- We. 1997. 900{. AN ftP MAan - PA HIMMAPPAXOMMCHILM029.PC 7A-29901 P9.99
EXHIBIT "B"
PROMISSORY NOTE
Principal Loan Date Maturity Loan No TCall I Coll Account Officer Initials
250 00 11-01-2010 11 01-2012 883837350 392
$416
References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item.
Any item above containing """ has been omitted due to text length limitations.
Borrower: Yanek Custom Homes, Inc. Lender: METRO BANK
8 South Ridge Road COMMERCIAL MORTGAGE DEPARTMENT
Boiling Springs, PA 17007 r T -+ # ?f 3801 PAXTON STREET
HARRISBURG, PA 17111
t s (888) 937-0004
Principal Amount: $416,250.00 Date of Note: November 1, 2010
PROMISE TO PAY. Yanek Custom Homes, Inc. ("Borrower") promises to pay to METRO BANK ["Lender"). or order, in lawful money of the
United States of America, the principal amount of Four Hundred Sixteen Thousand Two Hundred Fifty & 001100 Dollars ($416,250.00) or so
much as may be outstanding, together with interest on the unpaid outstanding principal balance of each advance. Interest shall be calculated
from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal plus all accrued unpaid interest on November 1, 2012. In
addition, Borrower will pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning December 1, 2010,
with all subsequent interest payments to be due on the same day of each month after that. Unless otherwise agreed or required by applicable
law, payments will be applied first to any accrued unpaid interest; then to principal; then to any unpaid collection costs; and then to any late
charges. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index
which is the Prime Rate as published in the Money Rate Section of the Wall Street Journal (the "Index"). 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 daily. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 3.250% per
annum. Interest on the unpaid principal balance of this Note will be calculated as described in the "INTEREST CALCULATION METHOD"
paragraph using a rate of 1.000 percentage point over the Index, adjusted if necessary for any minimum and maximum rate limitations described
below, resulting in an initial rate of 5.000% per annum based on a year of 360 days. NOTICE: Under no circumstances will the interest rate on
this Note be less than 5.000% per annum or more than the maximum rate allowed by applicable law.
INTEREST CALCULATION METHOD. Interest on this Note is computed on a 3651360 basis; that is, by applying the ratio of the 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. All interest payable under this Note is computed using this method.
PREPAYMENT. 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. Except for the
foregoing, Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed
to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments of accrued unpaid interest. Rather, early
payments will reduce the principal balance due. 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: Metro Bank, P 0 Box 4999 Harrisburg, PA
17111-9933.
INTEREST RESERVES. Borrower authorizes Lender to place $20,000.00 of the Principal Amount as an interest reserve, which is an estimate of
the interest due on the Note ("Interest Reserve"). All interest payments shall be paid from the Interest Reserve. Lender may automatically
deduct accrued unpaid interest from the Interest Reserve. Interest will accrue, as described in this Note, on amounts deducted from the Interest
Reserve. In the event the interest due under this Note exceeds the Interest Reserve, Borrower will pay accrued unpaid interest when due
according to the terms of this Note. Upon maturity, Lender will not advance or disburse the remaining interest Reserve, if any, to Borrower.
The principal due upon maturity will not include any remaining Interest Reserve.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by
adding an additional 4.000 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. 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.
Environmental Default. Failure of any party to comply with or perform when due any term, obligation, covenant or condition contained in
any environmental agreement executed in connection with any loan.
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
PROMISSORY NOTE
Loan No: 883837350 (Continued)
commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower.
Page 2
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, endorser, surety, or accommodation party
of any of the indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note.
Change In Ownership. Any change in ownership of twenty-five percent (25%) or more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or
performance of this Note is impaired.
Insecurity. Lender in good faith believes itself insecure.
Cure Provisions. If any default, other than a default in payment is curable and if Borrower has not been given a notice of a breach of the
same provision of this Note within the preceding twelve (12) months, it may be cured if Borrower, after Lender sends written notice to
Borrower demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) if the cure requires more than fifteen (15)
days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter
continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal
balance under this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay
Lender that amount. This includes, subject to any limits under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses,
whether or not there is a lawsuit, including reasonable attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to
all other sums provided by law.
GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the taws of
the Commonwealth of Pennsylvania without regard to its conflicts of taw provisions. This Note has been accepted by Lender in the
Commonwealth of Pennsylvania.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether
checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may
open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by
law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any
and all such accounts.
COLLATERAL. Borrower acknowledges this Note is secured by the following collateral described in the security instrument listed herein: a
Construction Mortgage dated November 1, 2010, to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania.
LINE OF CREDIT. This Note evidences a straight line of credit. Once the total amount of principal has been advanced, Borrower is not entitled
to further loan advances. Borrower agrees to be liable for all sums either: (A) advanced in accordance with the instructions of an authorized
person or (B) credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this Note at any time may be
evidenced by endorsements on this Note or by Lender's internal records, including daily computer print-outs.
POST CLOSING COMPLIANCE. Borrower agrees to execute, re-execute, cause a Guarantor(s) or other third party0es) involved in the loan
transaction to execute and/or re-execute and to deliver to Lender or its legal counsel, as may be deemed appropriate, any document or
instrument signed in connection with the Loan which was incorrectly drafted and/or signed, as well as any document or instrument which
should have been signed at or prior to the closing of the Loan, but which was not so signed and delivered. Borrower agrees to comply with any
written request by Lender within ten (10) days after receipt by Borrower of such request, Failure to Borrower to so comply shall, at the option
of Lender, upon notice to Borrower, constitute an event of default under the Loan.
COMMITMENT LETTER COMPLIANCE.. This loan is contingent upon Borrower's compliance with all of the terms and conditions in the
commitment letter issued by Lender to Borrower on or about March 25, 2008. Upon breach of any term of condition therein Lender shall have
the right to declare this loan in default and demand payment in full of the principal balance remaining unpaid, together with all interest, which
shall have accrued thereon. .
GUIDANCE LINE ADVANCE. This loan facility is an advance under Guidance Line of Credit Number 88883549777 evidenced by a Promissory
Note dated March 28, 2008 in the amount of $650,000.00.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives,
successors and assigns, and shall inure to the benefit of Lender and its successors and assigns.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Borrower may notify Lender if Lender
reports any inaccurate information about Borrower's account(s) to a consumer reporting agency. Borrower's written notice describing the
specific inaccuracy(ies) should be sent to Lender at the following address:
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 joini 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
PROMISSORY NOTE
Losh No: 883837350 (Continued) Page 3
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:
YANEK CUSTOM HOMES, I-NC.
By:: ISeal1
S eve r., esident of Yanek Custom
s, c.,?
Home
USER PRO L, d.-q. V.. S.SO.10.003 Cep. IY,MO f#ruW So4mn4 M. 1997. 2010 AN Rghu Al-+ - PA SACAUPL1OMPC 7R-72138 M20
DISCLOSURE FOR CONFESSION OF JUDGMENT
Principal Loan Date Maturity Loan No Call 1 Coll Account Officer Initials
$416,250.00 11-01-2010 11-01-2012 883837350, T 1 992
References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item.
Any item above containing has been omitted due to text length limitations.
Declarant: Yanek Custom Homes, Inc. Lender: METRO BANK
8 South Ridge Road COMMERCIAL MORTGAGE DEPARTMENT
Boiling Springs, PA 17007 3801 PAXTON STREET
HARRISBURG, PA 17111
(888) 937-0004
DISCLOSURE FOR CONFESSION OF JUDGMENT
THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS 1 DAY OF ?OV 20 lU, A
PROMISSORY NOTE FOR $416,250.00 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 UNDER IGNED 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.
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:
YANEK CUSTOM HOMES INC.
(Seal)
e Jr., President of Yanek Custom
Home Inc. x
USER F"0 Lwdhp. Va. 5.53,10= C;W H - Fn-W SokMb 1 - 1997. 7010. AO npnn flnw-d. - FA S-1CFVkMW00 FC 7P-32178 7A-20
EXHIBIT "C"
COMMERCIAL GUARAP?TN
Pr"rnci sel Loan Date W%llty J Loan,No Call 1 C114 A. Want Cl# iG r itl't>€ 8I$
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: Yanek Custom Homes, Inc. (TIN: 25-1857837)
8 South Ridge Road
Boiling Springs, PA 17007
Lender: COMMERCE BANKIHARRISBURG N.A.
COMMERCIAL MORTGAGE DEPARTMENT
3801PAXTON STREET
HARRISBURG, PA 17111
Guarantor: Steve J. Yanek, Jr. (SSN: 296-60-5275)
8 South Ridge Road
Boiling Springs, PA 17007
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 (50.00), 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 liabilty 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; IQ 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
COMMERCIAL GUARANTY
Loan No: 3410850 (Continued) Page 2
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;
(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 FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than one-hundred-twenty (120) days after the end of each fiscal year,
-Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor
Tax Returns. As soon as available, but in no event later than one-hundred-twenty (120) days after the applicable filing date for the tax
reporting period ended, Federal and other governmental tax returns, prepared by Guarantor.
All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue lending
money or to extend other credit to Borrower; (B) to make any presentment, protest, demand, or notice of any kind, including notice of any
nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower,
Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional
loans or obligations; ICI to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor;
(D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with
any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lender's power; or (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 of
defenses arising by reason of (A) any "one action" or "anti-deficiency" law or any other law which may prevent Lender from bringing any
action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action,
either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of
rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (C) any disability or other defense of
Borrower, of any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other
than payment in full in legal tender, of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the basis of unjustified
impairment of any collateral for the Indebtedness; (E) any statute of limitations, if at any time any action or suit brought by Lender against
Guarantor is commenced, there is outstanding Indebtedness which is not barred by any applicable statute of limitations; or (F) any defenses
given to guarantors at law or in equity other than actual payment and performance of the Indebtedness. If payment is made by Borrower,
whether voluntarily or otherwise, or by any third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment
to Borrower's trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors, the
Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty.
Guarantor further waives. and agrees not to assert or claim at any time any deductions to. the amount guaranteed, under this Guaranty for any
claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the
Borrower, the Guarantor, or both,
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is
made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and
not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be
effective only to the extent permitted by law or public policy.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender
(whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts
Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender
may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, whether now existing or hereafter
created, shall be superior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes
insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any
claim that Lender may tow 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
lead tender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of
Burrower to Guarantor shall be marked v%,' ' a legend that the same are subject to this Guara--v and shall be delivered to Lender. Guarantor
agrees, and Lender is hereby authorized, -e name of Guarantor, from time to time to file i ring statements and continuation statements
and to execute documents and to take sues. other actions as Lender deems necessary or appro,,,ate to perfect, preserve and enforce its rights
CQ111MERMAL GUARANTY
Loan No: 3470850 (Coontinued)
under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Page 3
Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the alteration or amendment.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's costs and expenses, including Lender's 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 without regard to its conflicts of law provisions. This Guaranty has been accepted by Lender
in the 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.
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 Yanek Custom Homes, Inc. and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Steve J. Yanek, Jr., and in each
case, any signer's successors and assigns.
Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lender.
Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means COMMERCE BANKMARRISBURG N.A., its successors and assigns.
Note. The word "Note" means and includes without limitation all of Borrower's promissory notes and/or credit agreements evidencing
Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations
of and substitutions for promissory notes or credit agreements.
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
COMMERCIAL GUARANTY
Loan No: 3410850 (Continued) Page 4
CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER
JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE
CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE
INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID
PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500)
ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR
A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY
TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL
CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY.
GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH
CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED JUNE 26, 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 / (Seal)
Steve elf
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ?() Qu C s j ',
I SS
A this the day of / 20 00 before me
?yS e-A k??Zlr ryu a undersigned Notary Public, personally appeared Steve J. Ysnek, Jr., known to me (or satisfactorily
to be the person whose name is subscribed to the within instrument, and ack ledged that he or she executed the same for the
purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
r' LT: ; t r ^Er .NSYLVANIA
,ta a' Seal tr
r ` ?on •anak, Notary Public
?/ary Public in and for the State of
r r: C'trnlnidandCounty
Dec. 11. 2007
n ,yn•,.^ 1 .,,:sc-AW;an of Notaries
LASER r A im, Va. 1.51.mO Cm1. NS,NM Ilse i 5?- - 1 157. 2005. M RiOA" ft-W. - PA HA*1NA"S% t!A*CF1,LPL,E20.FC 711.20201 M-W -
DISCLG JRE FOR CONFESSION OF J.. JGMENT
it spa! Loan notes mauv ty Loan can 10" AcMunt Offider I WWII;
6-26-20W 1 9641-6- l 8 Ism 2313
References in the shaded area are for Lander'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: Yanek Custom Homes, Inc. (TIN: 25-1857837)
8 South Ridge Road
Boiling Springs, PA 17007
Lender: COMMERCE BANK/HARRISBURG N.A.
COMMERCIAL MORTGAGE DEPARTMENT
3801 PAXTON STREET
HARRISBURG, PA 17111
Declarant: Steve J. Yanek, Jr. (SSN: 296-60-5275)
8 South Ridge Road
Boiling Springs, PA 17007
DISCLOSURE FOR CONFESSION OF JUDGMENT
I AM EXECUTING, THIS G DAY OF - 20 C)L- A GUARANTY OF A PROMISSORY NOTE FOR
$1,300,000.00 OBLIGATING ME TO REPAY THAT AMOUNT.
A. I UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER
JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE GUARANTY, WITHOUT ADVANCE NOTICE TO ME AND WITHOUT
OFFERING ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE
OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT
LENDER MAY ASSERT AGAINST ME UNDER THE GUARANTY, I AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE
RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO
LENDER'S ENTERING JUDGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION.
INITIALS:
i
B. I FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT ADVANCE
NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO CONTAINS LANGUAGE THAT WOULD
PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE
JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FULL
OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE
AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, I AM KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY WAIVING THESE RIGHTS, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING ON THE
JUDGMENT IN ANY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY ADVANCE NOTICE.
INITIALS:
C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH
STATEMENT THAT APPLIES, I REPRESENT THAT:
INITIALS
1. 1 WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY.
2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY
TO MY ATTENTION.
D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS $10,000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN I INITIALED
AND SIGNED IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNING.
THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE
EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
DECLARANT:
LACER PRO Lw q, V- E.31.=D CPP, h, d FnnW Cd1 U0 N M7. ] N P%k. P -d- - PA thkMK VR1t11 W4P1LLALV=PC Tr,2G301 R1-N
EXHIBIT "D"
CONINAERC A!_ GUARAN i
Principal Loan Date mocitify Loan -40 call f Gall t1cCt>uni Qfft?er 3nit?afs
2113
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: Yanek Custom Homes, Inc. (TIN: 25-1857837) Lender: COMMERCE BANK/HARRISBURG N.A.
8 South Ridge Road COMMERCIAL MORTGAGE DEPARTMENT
Boiling Springs, PA 17007 3801 PAXTON STREET
HARRISBURG, PA 17111
Guarantor: Edie J. Yanek ISSN: 196-48-4185)
8 South Ridge Road
Boiling Springs, PA 17007
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 Lende( 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
agreements or foreign currency exchange agreements or commodity price protection agreements, other obligations, and liabilities of Borrower,
and any present or future judgments against Borrower, future advances, loans or transactions that renew, extend, modify, refinance, consolidate
or substitute these debts, liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by their terms or
acceleration; absolute or contingent; liquidated or unliquidated; determined or undetermined; direct or indirect; primary or secondary in nature or
arising from a guaranty or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or non-negotiable
instrument or writing; originated by Lender or another or others; barred or unenforceable against Borrower for any reason whatsoever; for any
transactions that may be voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated then reduced or
extinguished and then afterwards increased or reinstated.
If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties
shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties.
Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties.
CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND
PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR
HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE
INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY
REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO
BALANCE FROM TIME TO TIME.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any
notice to Guarantor or to Borrower, and will continue in full force until all the Indebtedness incurred or contracted before receipt by Lender of
any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have
been performed in full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of
revocation must be mailed to Lender, by certified mail, at Lender's address listed above or such other place as Lender may designate in writing.
Written revocation of this Guaranty will apply only to 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 1$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; 1D) 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
COMMERCIAL GUARANTY
Loan No: 3410850 (Continued) Page 2
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;
(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 FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than one-hundred-twenty (120) days after the end of each fiscal year,
Guarantor's balance sheet and income statefnent for the year ended, prepared by Guarantor.
Tax Returns. As soon as available, but in no event later than one-hundred-twenty (120) days after the applicable filing date for the tax
reporting period ended, Federal and other governmental tax returns, prepared by Guarantor.
All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue lending
money or to extend other credit to Borrower; (B) to make any presentment, protest, demand, or notice of any kind, including notice of any
nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower,
Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional
loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor;
(D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with
any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lender's power; or (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 lndebtedness 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, !lie
Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any
claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the
Borrower, the Guarantor, or both,
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is
made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and
not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be
effective only to the extent permitted by law or public policy.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender
(whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts
Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender
may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, whether now existing or hereafter
created, shall be superior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes
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 wi* ` a legend that the same are subject to this Guaranty and shall be delivered to Lender. Guarantor
agrees, and Lender is hereby authorized, ie name of Guarantor, from time to time to file ; cing statements and continuation statements
and 'to execute documents and to take su,„ oher actions as Lender deems necessary or appr,ate to perfect, preserve and enforce its rights
COMMERCIAL GUARANTY
Loan No: 3410850 (Continued) Page 3
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 without regard to its conflicts of law provisions. This Guaranty has been accepted by Lender
in the 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 requited 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 sunless
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 uncer this Guaranty by giving formal written
notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Guarantor
agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicable law, if there is more
than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other
right. A waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver of Lender's right otherwise to demand
strict compliance with that provision or any other provision of this Guaranty" No prior waiver by Lender, nor any course of dealing between
Lender and Guarantor, shall constitute a waiver of any of Lender's rights or of any of Guarantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this Guaranty, the granting of such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in
the sole discretion of Lender.
Successors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal
representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically
stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise
defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word "Borrower" means Yanek Custom Homes, Inc. and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Edie J. Yanek, and in each case, any
signer's successors and assigns.
Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lender.
Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means COMMERCE BANK/HARRISBURG N.A., its successors and assigns.
Note. The word "Note" means and includes without limitation all of Borrower's promissory notes and/or credit agreements evidencing
Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations
of and substitutions for promissory notes or credit agreements.
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
COMMERCIAL GUARANTY
Loan No: 3410850 (Continued) Page 4
CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER
JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE
CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE
INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID
PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($5001
ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR
A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY
TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL
CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY.
GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH
CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO.GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED JUNE 26, 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.
GUARAN
, j .
X ?E..c • ...s.Y.. (Seal)
Edie J. Yanek
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
I SS
COUNTY OF CC2
On this, the day of y & 2DO, before me
C frr-? YAi? , the undersigned Notary Public, personally appeared Edie J. Yanek, known to me (or satisfactorily proven?
to be the person whose name is subscribed to the within instrument, and ackno;edgy that he or she executed the same for the purposes
therein contained.
In witness whereof, I hereunto set my hand and official seal. 1
='UMMC `•, ""ALT 1, 0' PENNSYLVANIA
Not, ial Seal
"+t.r
'i C. Romanak, Notary Public
%?
HP Boro, Cumberland County rPublic in and for the State of
1 ..m f:, ,(, issue, Expires Dec. 11, 2(07
n , Association Of Notaries
LAGER PRO L.dwF. Vet. 5.51.00.5W C-MMI r-iM IeWta,. x 1841.1 . AA "m AU . - PA H.1%MWPPS%PW*AWILR1E20.FC TA-1=1 M20
DISCLG. JRE FOR CONFESSION OF 1- )GMENT
t r n i ?i uen Date 1?# lty Gan s3 Gau i cia Awouni [!ffi cer ' 1t?t"$
8 ,2006 :fl?s-- 3!A 1.0850 ?'?.3
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: Yanek Custom Homes, Inc. (TIN: 25-1857837)
8 South Ridge Road
Bolling Springs, PA 17007
Lender: COMMERCE BANK/HARRISBURG N.A.
COMMERCIAL MORTGAGE DEPARTMENT
3801 PAXTON STREET
HARRISBURG, PA 17111
Declarant: Edie J. Yanek ISSN: 196-48-4185)
8 South Ridge Road
Boling Springs, PA 17007
DISCLOSURE FOR CONFESSION OF JUDGMENT
I AM EXECUTING, THIS DAY OF `.'1 20- , A GUARANTY OF A PROMISSORY NOTE FOR
81,300,000.00 OBLIGATING ME TO REPAY THAT AMOUNT.
A. I UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER
JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE GUARANTY, WITHOUT ADVANCE NOTICE TO ME AND WITHOUT
OFFERING ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE
OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT
LENDER MAY ASSERT AGAINST ME UNDER THE GUARANTY, I AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE
RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO
LENDER'S ENJ RING JUDGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION.
INITIALS: y
B. I FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT ADVANCE
NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO CONTAINS LANGUAGE THAT WOULD
PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE
JUDGMENT BY FORECLOSING_ UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FULL
OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE
AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, I AM KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY WAIVING THESE RIGHTS, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING ON THE
JUDGMENT ["NY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY ADVANCE NOTICE.
INITIALS:.,
C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH
STATEMENT THAT APPLIES, I REPRESENT THAT:
INITIALS
1. 1 WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY.
Q ?
2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY
TO MY ATTENTION.
D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS 810,000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN 1 INITIALED
AND SIGNED IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNING.
THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE
EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
DECLARANT:
X (Seal)
Edie J.' anek
f
LASER PRO i-d,p, Vv. 6.Ot MW4 Gap,. Hr d MF W 6aWVw NP. 1967. 2006. AN Ri6htr P-L -PA XIWINMPBILPWIMCPR{A UMM M20351 PM120
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A.,
Plaintiff, NO.:
VS.
STEVE J. YANEK, JR. and EDIE J. YANEK,
Defendants.
VERIFICATION
I, David. M. Chajkowski, Assistant Vice President of Metro Bank depose and say subject
to the penalties of 18 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:
David M. Chajkowski, Assistant Vice President
2
IN THE COURT OF COMMON PLEAS OF 7 -
PENNSYLVANIA
CUMBERLAND COUNTY -
,
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION i= ? --
Harrisburg, N.A.,
NO
..
Plaintiff,
vs.
STEVE J. YANEK, JR. and EDIE J. YANEK,
Defendants.
AFFIDAVIT OF NON-MILITARY SERVICE
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF DAUPHIN
I, Scott A. Dietterick, Esquire and/or Kimberly A. Bonner, Esquire, attorneys for and
authorized representative of Plaintiff, Metro Bank f/k/a Commerce Bank/Harrisburg, N.A.,
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 know
belief.
S O$,?T TO AND SUBSCRIBED BEFORE ME THIS
1 ???t day of April, 2012.
GhA.,?Oa L-,<_)ov6c)c-,y-
Notary Public
My Commission Expires:
NOTARIAL SEAL
CHRISTINE L SPURLOCK
Notary Public
HUMMELSTOWN BORO, DAUPHIN COUNTY
My Commission Expires Jun 23, 2012
Scott A. Metterick, Esquire
Kimberly A. Bonner, Esquire
and
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A.,
Plaintiff, NO.:
VS.
STEVE J. YANEK, JR. and EDIE J. YANEK,
Defendants.
NOTICE UNDER RULE 2958.1
OF JUDGMENT AND EXECUTION THEREON
Notice of Defendant's Rights
To: Steve J. Yanek, Jr.
8 South Ridge Road
Boiling Springs, PA 17007
A judgment in the amount of $526,110.97 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
JAMES, SMITH;\DjC1jT"15kK ¢z CONNELLY LLP
By:
Scott A. D?tt?rick,
Attorney I.D. #55650
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A.,
Plaintiff, NO.:
vs.
STEVE J. YANEK, JR. and EDIE J. YANEK,
Defendants.
NOTICE UNDER RULE 2958.1
OF JUDGMENT AND EXECUTION THEREON
Notice of Defendant's Rights
To: Edie J. Yanek
8 South Ridge Road
Boiling Springs, PA 17007
A judgment in the amount of $526,110.97 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 S
JAMES, SMIV)4, P1V T1XRIrK 8j CONNELLY LLP
By:
Scott W. Dietteh&, Esquire
Attorney I.D. #55650
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A., : Q
Plaintiff, NO.:
VS.
STEVE J. YANEK, JR. and EDIE J. YANEK,
Defendants.
NOTICE OF ORDER, DECREE OR JUDGMENT
TO: ( ) Plaintiff
(X) Defendant - STEVE J. YANEK, JR.
( ) Additional Defendant(s)
You are hereby notifi ed t tan 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: $526,110.97
plus interest on the principal sum ($439,274.26) from February 27, 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
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A.,
Plaintiff, NO.:
VS.
STEVE J. YANEK, JR. and EDIE J. YANEK,
Defendants.
NOTICE OF ORDER, DECREE OR JUDGMENT
TO: ( ) Plaintiff
(X) Defendant - EDIE J. YANEK
( ) Additional Defendant(s)
You are hereby notifie7;th 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: $526,110.97
plus interest on the principal sum ($439,274.26) from February 27, 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
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A.,
Plaintiff, NO.: - 0?3 I C?W
vs.
STEVE J. YANEK, JR. and
EDIE J. YANEK,
Defendants. -02Z 1--3
ACCEPTANCE OF SERVICE
I, John S. Kundrat, Esquire, accept service of the Civil Action - Complaiiitle
Confession of Judgment and 2958.1 Notice, on behalf of the Defendants, Steve J. -anck,
Jr. and Edie J. Yanek,
r`
Date: / By:
John S. Kundrat, Esquire
107 Boas Street
Harrisburg, PA 17102
(717) 232-3755
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John S. Kundrat, Esquire
Kundrat & Associates
107 Boas Street
Harrisburg, PA 17102
Attorney ID No. 24958
Telephone: 717-232-3755
Fax: 717-232-9608
kundrat-associatesO,,pa.net
METRO BANK f/k/a Commerce Bank/
Harrisburg, N.A.
Plaintiff
V.
STEVE J. YANEK, JR. and EDIE J.
YANEK
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2012-2397 Civil
CIVIL DIVISION
PETITION TO OPEN JUDGMENT
AND NOW comes Defendants, STEVE J. YANEK, JR. and EDIE J. YANEK, by and
through their counsel, John S. Kundrat, Esquire, and in support thereof, states as follows:
1. Defendant, STEVE J. YANEK, JR., (Mr. Yanek) is an adult individual residing at
8 South Ridge Road, Boiling Springs, PA, 17007.
2. Defendant, EDIE J. YANEK, (Mrs. Yanek) is an adult individual residing at 8
South Ridge Road, Boiling Springs, PA, 17007.
3. On or about April 18, 2012, a Confession of Judgment Complaint was filed along
with a Confession of Judgment for a total amount of $526,110.97 by Scott A. Dietterick, Esquire,
attorney for Plaintiff.
4. Count I of the Confession of Judgment reflects a balance due of $185,784.05.
It is believed that this amount is incorrect and the balance actually due, if any, is
substantially less. The attorneys' fees and costs are over-stated and the Letter of Credit is over-
stated. The balance of the calculation is also suspected to be inaccurate.
6. Count II of the Confession of Judgment reflects a balance due of $340,326.92.
7. It is believed that this amount is incorrect and the balance actually due, if any, is
substantially less. The attorneys' fees are over-stated and there is no detailed description of
"expenses" and "other fees". The balance of the calculation is also suspected to be inaccurate.
8. Plaintiff, confessing the judgment, relies upon the Commercial Guaranties
attached as Exhibits "A" and "B" hereto executed by Mr. Yanek and Mrs. Yanek respectively.
However, those Commercial Guaranties apply only to Loan 3410850 in the face amount of $1.3
Million. The loan number is specifically set forth on the second through fourth pages of each
Guaranty. Count I alleges a balance due of $185,784.05. The Note for Loan 3410850 is
attached as Exhibit "C" and reflects Loan No. 3410850 on each page and is of even date with the
Commercial Guaranties attached as Exhibits "A" and "B".
9. Count II of the Confession of Judgment is a result of a balance alleged remaining
on Loan 883837350. This loan had a principal balance of $416K and was taken on November 1,
2010. Plaintiff relies upon the personal guaranties attached as Exhibits "A" and "B" confessing
2
judgment against Mr. and Mrs. Yanek for this loan. It is submitted that the Commercial
Guaranties attached as Exhibits "A" and "B" do not apply to this loan. Loan No. 883837350 in
the principal amount of $416K is evidenced by a Note dated November 1, 2010. A copy of the
Note is attached hereto as Exhibit "D". The Guaranties contain no reference to Loan No.
883837350 and were executed on June 26, 2006.
10. Both Loan No. 3410850 and Loan No. 883837350 are secured by real estate.
Plaintiff filed Complaints in Mortgage Foreclosure on the real estate involving both loans on
March 14, 2012. It is anticipated that the real estate has adequate equity to substantially reduce
the obligations or pay them in full.
11. Yanek Custom Homes, Inc. executed a Master Promissory Note for a loan from
Commerce Bank/Harrisburg, N.A. with a principal sum of $650K dated March 28, 2008, and
identified as Loan No. 88883549777. A copy of this note is attached as Exhibit "E".
12. Yanek Custom Homes, Inc. executed a Business Loan Agreement in conjunction
with the Promissory Note referenced in Paragraph 11 above with a principal sum of $650K dated
March 28, 2008, and identified as Loan No. 88883549777. A copy of this Business Loan
Agreement is attached as Exhibit "F".
13. As a requirement for the $650K loan identified in Paragraphs 11 and 12 above,
Mr. Yanek was required to execute a personal guaranty for that obligation, which he did. Said
Guaranty is attached as Exhibit "G" hereto. Said Guaranty specifically references Loan No.
88883549777 on pages 2 through 4. Mrs. Yanek did not execute a personal guaranty on this loan
to the best of her knowledge. Mr. and Mrs. Yanek have no documentation reflecting a balance
due on this Loan No. 88883549777.
3
14. The averments set forth herein reflect that the course of dealing among the parties
required that each personal guaranty reflect a specific loan number and was applicable only to
that loan.
15. Deeds in Lieu of Foreclosure have been offered to the Plaintiff on both properties
which secure both Loan Nos. 3410850 and 883837350. Plaintiff has rejected same.
16. Some of the loan documents reflect Commerce Bank/Harrisburg, N.A. as lender.
Plaintiff has set forth no allegation or evidence that Metro Bank has been assigned the claims.
17. Entry of Judgment against the Defendants has damaged their personal credit
rating and continues to do so.
WHEREFORE, Defendants respectfully request this Honorable Court to grant their
Petition to Strike Judgment.
KUNDRAT & ASSOCIATES
B)
Dated: May 17, 2012
4
COMMERCIAL GUARANTN
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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: Yanek Custom Homes, Inc. (TIN: 25-18578371 Lender: COMMERCE BANKIHARRISBURG N.R.
B South Ridge Road COMMERCIAL MORTGAGE DEPARTMENT
Boiling Springs, PA 17007 3801 PAXTON STREET
HARRISBURG, PA 17111
Guarantor: Steve J. Yanek, Jr. (SSN. 296-60-52751
8 South Ridge Road
Boiling Springs, PA 17007
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
wilt 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 Ilmitaticn, loans, advances,
debts, overdraft indebtedness, credit card indebtedness, lease obligations, liabilities and obligations under any interest rate protection
spreements 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 uniiquidated; determined or undetermined: direct or indirect; primary or secondary in nature or
arising from a guaranty or s;irety; 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 vices 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 1$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, tail or decide not to perfect, and release any such security, with
or without the substitution of new collateral; (D) to release, su ae not to sue or at with any one or more of Borrower's sureties,
endorsers, or other guarantors on any terms or in any man ?v determine how, when and what application of
payments and credits shat( be made on the Indebtedness; (F) EXHIBIT t the order or manner of sale thereof, including
without limitation, any nonjudicial sale permitted by the terms ent or deed of trust, as Lender in its discretion
A
COMMERCIAL GUARANTY
Loan Na: 3410850 {Continued} Page 2
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 quality in any way the terms of this Guaranty; (8) 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; IQ 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; (HI
no litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or
threatened; (1) Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and (.J) Guarantor has established
adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition, Guarantor agrees to
keep adequately informed from such means of any facts, events, or circumstances which might in any way affect Guarantor's risks under this
Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by
Lender in the course of its relationship with Borrower.
GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than one-hundred-twenty (120) days after the end of each fiscal year,
-Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor-
Tax Returns. As soon as available, but in no event later than one-hundred-twenty (12O1 days after the applicable filing date for the tax
reporting period ended, Federal and other governmental tax returns, prepared by Guarantor.
All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Guarantor. as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue lending
money or to extend other credit to Borrower; (B) to make any presentment, protest, demand, or notice of any kind, including notice of any
nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower,
Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional
loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor;
(D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of.personal property security held by Lender from Borrower or to comply with
any other applicable provisions of the Uniform Commercial Code; If 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; ID) 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 amoUlrt_guarenteeo 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, of both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is
made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and
not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be
effective only to the extent permitted by law or public policy.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender
(whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts
Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender
may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. 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
Ieasi tender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of
;grower to Guarantor shall be marked vv* ' a legend that the same are subject to this Guaro?w and shall be delivered to Lender. Guarantor
agrees, and Lender is hereby authorized,. -a name of Guarantor, from time to time to file i cing statements and continuation statements
and to execute documents and to take sup:. other actions as Lender deems necessary or appro,,,ate to perfect, preserve and enforce its rights
cOMMERUAL GUNRANTY
Loan No: 3410850 ( ontinl,ted) Page 3
under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are apart 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 pan y 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 without regard to its conflicts of law provisions. This Guaranty has been accepted by Lender
in the 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 'olds 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, rearesentaTions 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 vrhen 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 net 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. Therelore, 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 of 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 te'.efacsimile (unless
otherwise required by law), when deposited with a nationally recognized overnight courier, or, it 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 subsequerrt instances where such consent is required and in all cases such consent may be granted or withheld in
the sole discretion of Lender,
Successors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal
representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically
stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise
defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word "Borrower" means Yanek Custom Homes, Inc. and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles.
Guarantor. The word "Guarantor' means everyone signing this Guaranty, including without limitation Steve J. Yanek, Jr., and in each
case, any signer's successors and assigns.
Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lender.
Indebtedness. The word "Indebtedness` means Borrower's indebtedness to Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means COMMERCE BANKIHARRISBURG N.A., its successors and assigns,
Note. The word "Note" means and includes without limitation all of Borrower's promissory notes and/or credit agreements evidencing
Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations
of and substitutions for promissory notes or credit agreements.
Related Documents. The words "Related Documents' mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
COMMERCIAL GUARANTY
Loan No: 3470850 (Continued) Page 4
CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFT ER THE AMOUNTS HEREUNDER BECOME DUE AND WI T N. 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%i OF THE UNPAID
PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (5500)
ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR IT SHALL
HE AUTH
RANT,
ENT
SUFFIC
GUARAN TO OCON ESSHJUDGMENTI AGAINSTEGUARANTORD BY OT BE E HIAUS EDRBY ANYTEXER SEOOF i ART AUTHORITY, BUT SHALL
CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY.
GUAANOR HEREBY CONFESSION OF JUDGMENT WAIVES STATES THAT ETHER A REPRESENTATIVE I OF OLENDER SPECIFICALLY CCOALLEDT THIS wCONFESSION OF
JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED JUNE 26, 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. 7 / (Seal)
Steve ek '
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
) SS
COUNTY OF
thisthe day of 20 ?L9 Before me
p lyi the undersigned Notary Public, personally appeared Steve J. Yansk, Jr., knovrn to me {or saris#actorily
kvin-tobe the person whose name is subscribed to the within instrument, and ack (edged that he or she executed the same for the
purposes therein contained.
In witness whereof. I hereunto set my hand and official seal. /
CF ,PE :fJSYLVANIA rr
^.a yi Seal t Q
I 1"'T.J•• Rs:-anal, NiAary Public ary Public in and for the State of ?tr7
G riii `-+,^,;u- Cmvitn=rland County
F :Of s Dec. 11, 2007
?: :. ,yiv.;r<:a ,:salafsan Of Notaries
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COMMERCIAL GUARANI
t halt .I3 C-4111 colt Acf attrt# Q# iC$r 3ttitP s
E'f ngipa) ____TL0at1 t]79 0111116/1 1
23'i3
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particularfoan or item-
Any item above containing """" has been omitted due to text length limitations.
Borrower; Yanek Custom Homes, Inc. (TIN: 25-1857837) Lender: COMMERCE
MORTGAGE DEPARTMENT
8 South Ridge Road
Boiling Springs, PA 17007 3B01 PAXTON STREET
HARRISBURG, PA 17111
Guarantor: Ellie .f. Yanek (SSN: 195-48.4185)
a south Ridge Road
Boiling Springs, PA 17007
CONTINUING GUARANTEE OF PAYMENT ARID PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionaliy
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 sarne clay 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 liebiiity 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, .
erising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired, that Borrower
individually or collectively or interchangeably with others, owes or will owe Lender. 'Indebtedness" includes, without limitation, loans, advances,
debts, overdraft indebtedness, credit card indebtedness, lease obligations, liabilities and obligations under any interest rate protection
agreements or foreign currency exchange agreements or commodity price protection agreements, other obligations, and liabilities of Borrower,
and any present or suture judgments against Borrower, future advances, loans or transactions that renew, extend, modify, refinance, consolidate
or substitute these debts, liabilities and obliaations whether: voluntarily or involuntarily incurred; due or to become due by their terms or
acceleration; absolute or contingem; 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 shag 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 shalt 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 unpald and even though the
Indebtedness may from time to time be zero dollars (50.00).
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice or
demand and without lessening Guarantor's Lability 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, of 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; IC) to take and hold security for the payment of
this Guaranty or the indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such security, with
or without the substitution of new collateral; (D) to release, substitute, agree not to sue, or deal with any one or more of Borrower's sureties,
endorsers, or other guarantors on any terms or in any 1-4 nu . (E) to determine how, when and what application of
payments and credits shall be made on the indebtednes EXHIBIT d tect e rder or manner of sale thereof, including
without limitation, any nonjudicial sale permitted by the ment or deed of trust, as Lender in its discretion
COMMERCIAL GUARANTY
Loan No: 3$10850 (Continued) Page 2
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;
(O) 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; (HI
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 obfrgation to disclose to Guarantor any information or documents acquired by
Lender in the course of its relationship with Borrower.
GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following.
Annual Statements. As soon as available, but in no event later than one-hundred-twenty (120) days after the end of each fiscal year,
Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor.
Tax ReWrns. As soon as available, but in no event later -than one-hundred-twenty 1120) days after the applicable filing date for the tax
reporting period ended, Federal and other governmental tax returns, prepared by Guarantor.
Alt financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue lending
money or to extend other credit to Borrower; (B) to make any presentment, protest, demand, or notice of any kind, including notice of any
nonpaymern of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower,
Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional
loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor;
(D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with
any other applicable provisions of the Uniform Commercial Code; IF) 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, ilia
Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any
claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the
Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is
made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and
not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be
effective only to the extent permitted by law or public policy.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender
(whether checking, savings, or some other account). This includes all accounts Guarantor folds jointly with someone else and all accounts
Guarantor may'open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender
may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. 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 wi*' a legend that the same are subject to this Guarantv and shall be delivered to Lender. Guarantor
agrees, and Lender is hereby authorized, to name of Guarantor, from time to time to file f cing statements and continuation statements
and'to execute documents and to take sup,., other actions as Lender deems necessary or appr-ate to perfect, preserve and enforce its rights
COMMERCIAL GUARANTY
Loan No: 3410850 (Continued) Page 3
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
sign=_d 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 without retard to its conflicts of law provisions. This Guaranty has been accepted by Lender
in the 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 "Guaramor"
respectively shalt 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, menagers, 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 iuniess
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 Leader. 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
tender and Guarantor, shall constitute a waiver of any of Lender's rights or of any of Guarantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this Guaranty, the granting of such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in
the sole discretion of Lender.
Successors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal
representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically
stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise
defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word "Borrower" means Yanek Custom Homes, Inc. and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Edie J. Yanek, and in each case, any
signer's successors and assigns.
Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lender.
Indebtedness. The word "indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means COMMERCE BANK/HARRISBURG N.A., its successors and assigns.
Note. The word 'Note' means and includes without limitation all of Borrower's promissory notes and/or credit agreements evidencing
Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations
of and substitutions for promissory notes or credit agreements.
Related Documents. The words 'Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security, deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the indebtedness.
COMMERCIAL GUARANTY
Loan No: 3410850 (Continued) Page 4
CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER
JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE
CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE
INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID
PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS 1$500)
ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR
A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY
TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL
CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY.
GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH
CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO.GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY 1S EFFECTIVE UPON GUARAN T OR'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 JUNE 26, 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.
GUARAN
7
4? e. ..1 (Seal)
X ?11
Edie J. Yanek
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
) SS
COUNTY OF
On this, the day of :1U 20(') (r before me
YC"&JOIJ C Gv?? •YIL the undersigned Notary Public, personally appeared Edis J. Yanek, known tome for satisfactorily proven)
to be the person whose name is subscribed to the within instrument, and acknowledg that he or she executed the same for the purposes
therein contained.
In witness whereof, 1 hereunto set my hand and official seal. /
3Cf iibiC'rA-','EALTh 0!7 PENNSYLVANIA
-L c_
Nofi^al Seal
Jcxa: C. Romanak, Notary Pubic
E t- :`-?p i-M 80ro CumberlandCouMy o ry Public in and for the State of _
f AY CC. vonissani Expires Dec. 11, 2M7
rh;^.'• ,nhn Association Of Notaries
utrw MO ?..aa..v..ea,.oo aw uw-N.n.rrwsifoww., na ls?l, ?ooL NWMO R„w.m. -?A KAWwAYpylt9MMCFl1VUE1e1c T112=1 V 20 .. .
PROMISSORY DOTE
carrliitT
can 106111
Login 011?n ACC itrit
Wlnci}'sa3 Ls3?n E•3a?e itft?is2S`ify '?? q'?.
850
41
{3S-Zu-2[3 I 4 $ 3to any particular loan or item.
applicability of this document
References in the shaded arAeny item above contaningly and do been omitted due to text length limitations. for Lender's use tom Homes, Inc. (TIN: 25-1857037) (..ender: COMMERCE BANKfHARRISBURG N.A.
Borrower: Yanek Cus COMMERCIAL MORTGAGE DEPARTMENT
8 South Ridge Road 3801 PAXTON STREET
Boiling Springs, PA 17007 HARRISBURG, PA 17111
Principal Amount: $1,300,000-00 Initial Rate: 9^000So Date o1 Vote: June 26, 2006 ANKIHARRtSBURG , in to pa PROMISE TO PAY. Yanek Custom Homes, Inc. ("Borrower") promises One Mil to TCOM hree Hu deed Thousand & 00/100 Dollaes($r1,300 000x001
of lion or so money of the United States America, the principal on the or so much as may be outstanding. together with of interesteach advanced outstanding principal balance of each advance. Interest sits be
lawful
calculated from the date of each advance until repayment mart schedule:
PAYMENT. Borrower will pay this loan in accordance with the following pay
Borrower will pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning July 26, 2006, with all
subsequent interest payments due on the same day of each month after that. Additionally, Borrower will pay to Lender, upon the sale of
each lot, a lot release sum of $30,000.00 plus 100% if vertical construction costs, not to exceed $139,600.00 per unit on the revolving
portion of this loan facility. If not sooner paid, Borrower will pay this loan in one payment of all outstanding principal plus accrued unpaid
interest on July 26, 2008.
Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest; then to principal; then to
any unpaid collection costs; and then to any late charges. The annual interest rate for this Note is computed on a 3651360 basis; that is, by incip
p yulende by nder'staddresspsha enl above or at 1suc'h other placeuas
the applying the ratio thannual ris rate over a yea r of
Borrower days,
number of days the e principal balance
Lender may designate in writing.
thetWa l StrreetrJou nal. t It a time ofd it an independent inde-x
rates is published the highest will be
VARIABLE Prime Rate AasEpublished in the rate on Sect suofbject
which is the e Prime
used. (the "Index"). 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 daily. Borrower understands that Lender may make oars
based on other rates as well. The index currently is 8.000% per annum. The interest rate to be applied to the unpaid principal balance during
this Note will be at a rate of 1.000 percentage point over the Index, resulting in an initial rate of 9.000°h per annum. NOTICE: Under no
Iicable tawcircumstances will the interest rate on this Note be more than the maximum rate allowed by app. f n VJ of the b?te of the
subject to refund u {ran and v i!i not be.
PREPAYMENT. d upon n early agrees that payment a (lt loan fees fees and voluntary or preas a Fes paid finance ult of finance dcha, ef eges are e than it as is v d' Early required of t law. Except for the
except otherw aise me
payments will not, unless agreed
foregoing, Borrower may pay without penalty all or r a a portion of the amount owed
recours ', or
to by Lender in writing, relieve borrower of Borrower's obligation to continue to mike payments of accrued interest. Rather, early not to
send
payments will e. If principal such a payment, Lender maysaccept it w thoutdlosing anynof Lenmarkederds"rightspaid this'Note, and Borrower
will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check
similar language
itutes "payment in full' of the amount owed or that is tendered with other
or other payment instrument that indicates that the, payment const
conditions orlim - Rations or as full t'3B01f PAXTONeSTREET,rHARRISBURG? PA x17111 ? red to: COtJIMERCE BANK.'HARRISBURG N-A,,
COMMERCIAL MORTGAGE DEPARTfJ1ENT which is an estimate of 0,00
Amo
rincipal
nt as an INTEREST RESERVES. Borrower "Irizes Lender tAPhnterest payments hallPbe paid f muthe Inter st Reserve rvLender may automatically
the interest due on the Nato te ("Interest Reserve"). .
deduct accrued unpaid interest from the Interest Reserve. Interest will accrue, as described in this Note, on amounts deducted from hBonower Reserve
Borr
Lender willllsnoteadvoncetor d sburse the eema 'ing Inteest Reserrveldifrany, when due
ll pay Reserve. In the event the of this t Noted under this Note
according to the terms
The principal due upon maturity will not include any remaining interest Reserve. a meat.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% f he regularlyrsc d lthis Note shall be increased by
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon interest on
this Note,vinteach errest will cont n interest rate
If judgment is entered in conn9 shall also aly
adding at would percentage ed h margin ere ("Default bbeen no deRate fault. Margin').
change to accrue
change that have app'
after the date of judgment at the rate in effect at the time judgment is entered. Hovrever, 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 obi mi obligation, enanv rant or con ondiotion a contained inth i Noee or in
any of the related documents or to comply' with or to perform any term, 9st
between Lender and Borrower.
_ property or
in Favor ci Par?lies. D le ua reement, or many other agreement, in faor~of Grantor defaults any other creditorrdorrperson that may materially affect any ofaB agreement, purchase or any loan, sales 9 rform Borrower's obligations under this Note or any of the related documents.
Borrower's ability to repay this Note or pe
Environmental Default. Failure of any party to comply with or perform when due any term, obligation, covenant or condition contained in
any environmerrial agreement executed in conna Cv e?
G/? v to Lender by Borrower or on Borrower's behalf under this
Note False or Statements. Any erit sty, v er now or at the time made or furnished or becomes false
the related documen?s is false e o or r mill misle
or misleading at any lime thereafter.
usiness, the insolvency. of Borrower, the appointment o a
Insolvency. The dissolution or termination of
PROMISSORY DOTE
rin- -1410850 (Continued)
Page 2
of creditor workout, or um
art of Borrower's property, any assignment for the benefit of creditors, any tYPa
receiver for any p
commencement of any proceeding under any bankruptcy or insolvency laws by or r against inst B Borrorrower.
whether by judicial proceeding, self-help,
any creditor of Borrower or by any governmental agency against any collateral securing the loan.
repossession Creditor or or any Forfeiture other Proceedings. Commencement of foreclosure or forfeiture proceedings,
with Lender. However, this Event of Default shall
method, by
This includes a garnishment of any of Borrower's accounts, including deposit accounts, the claim which is the of the or
liity or the creditoobaboefe ture f p oceedi g and deposrtsbwith ! andercmonies or
adequate
written notice of
not apply forfeiture if there is proceeding a good faith Borrower dispute by Borrower
a su bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an
a surety ty
of the preceding events occurs with respect to any guaranty of the indebtedness
Guarantor orrantor dies bond for the becomes dispute. incompetent, or revokes or disputes the validity of, or liability can Guarantor er, of an any of the
the Any event of death, Lender, at its option, may, permit tar the Guarantor's estate to
evEventsidenced by Affecting this G Nate. In Guarantor.
assume unconditionally the obligations arising under the guaranty in a mariner but shall not satisfactory be to Lenderrequired, to, and, pin 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 Note is inpaired.
insecurity. Lender in good faith believes itself insecure. given a notice of a breach of the
written notice from
Cure Provisions. If any default, other than a default in payment is curable and if Borrower has.not been g
same provision of this Note within the preceding twelve months, it may be cured if Borrower, after receiving practical.
in ult Lender's n sole fifteen (151 discretion days; to or be (2) suif the cure requires more than fifteen 0 5)
- sufficient to cure the default and thereafter
Lender demanding cure of such defauCh (1) Lender cures the deems default
days, immediately initiates steps wh roduce compliance as soon as reasonably p
continues and completes all reasonable and necessary steps sufficient top applicable law, declare the entire unpaid principal
LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by balance under this Note and all accrued unpaid interest immediately
does not pay. Borrower will pay
e else and thelp hen collect Note pa if Borrower t amount.
ATTORNEYS' FEES EXPENSES. Lender may hire or limits pay under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether will or
automatic stay
efforts in modify
Lender that amount. This includes, subject to any addition to all other sums provided by
not there is a tared ap including attorneys' fees, exile able law, Borrowter proceedings pay a'ny court costs in
or injunction), and appeals. If not prohibited by applicable
law, the laws of
law'
GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal l
b
the Commonwealth of Pennsyivarira without regard to its conflicts of taw provisions. to This Plots has been accepted l Lender in the
V calth cs o?nsyh.>. ga
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether
prohibited b
checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower ma
ms owing rwhich tsetoff he 'indebtedness would be
any
s not include any IRA or Keogh accounts, or any trust a
open in the future. However, this doe licable law, to charge or setoff accounts
lava. Borrower authorizes Lender, to the extent permitted by app
and all such accounts. on the i.5 acre lot located at the corner of
COLLATERAL. Borrower acknowledges this Note is secured by Titled insured First lien mortgage
Borrower is not entitled
South Ridge Road and Route 174 in South Middleton Township, Cumberland County.
LINE OF CREDIT. This Note evidences a straight line of credit. Once the total amount of principal has been advanced, this Note Borrower
any time may be balance owing to further loan advances. Borrower agrees to be liable for all sums eer ith r: (A) unpa dvprin dp n accordance with the instructions of an authorized
person or (B) credited to any of Borrower's accounts with int-outs.
evidenced by endorsements on this Note or by Lender's internal records, including daily computer pT 1BSinvolved in the (ogre
ro
POST CLOSING COMPLIANCE. Borrower agrees to execute, re-execute, cause a Guarantor(s) or other third party
instrument transaction to execute and/or re-execute and to deliver to Lender or its legal counse, as may be deemed aPP Priatin any document or
smhav signed in connection with the Loan which v incorrectly drafted and/or signed, as well as any docume r shat!, at th which
of such equ e t. Failure delivered. Borrower agrees comply with any
the option at or
ue to Borrower to so comply
after receipt bybBor which was riot so sned
closi of s houlhould request vtby Lender wit ini tono(10) daysna of the oa
Loan-
Le
of Lender, upon notice to Borrower, constitute an event of default under
COMMITMENT I-ETTER COMPLIANCE-- This loan is contingent up Borrower's compliance with all of the terms and conditions in the
n 2
er shall h have
all Lender
commitment letter issued by Lender to Borrower on or about June 23, 2006. Upon breach of any term of conditi jn therewith in
the right to declare this Ian in. default and demand payment in full of the prindPal balance remaining unpaid, togs
shall have accrued thereon. deposit account relationship with
RFOU!RED DEPOSIT ACCOUNT. Borrower and guarantor(s) shall be required to establish and maintain primary
Commerce- Bank.
COLLA T ERALILEDICROSS DEFAULTED. This loan is Cross Collateralized/Cross Defaulted with other loans for Borrower. cost breakdown,
CONSTRUCTION RcECUIREMENTS. Borrower shall provide to Bank the copies of the following items: Building plans,
specification listing, all required building permits and evidence of Builder's Risk insurance naming Bank as additional insured and must contain
the standard mortgagee's cause.
ADDITIONAL proPertY 2. Principal pay downs of 'SOfA each w;0 be required
t 1. Assignment of declarent rights for collateral point in time. 4. In the event 3
cape ri r. the re than 2 presold units and 1 unit under contract shall be permitted at any
he sale a of each unit. each unit. . 3. No more No mo
units are sold with a 4th under contract, borrower may begin construction in Phase hwer, and open Borrower's hairs, personal representatives,
SUCCESSOR INTERESTS. The terms of this Nate shall be binding up
successors and assigns, and shall inure to the benefit of Lender and its successors and assigns- inaccurate
o
CI fy us irat rep should n sent t
NOTIFY L'S OF IA!AC>:LIRRTINFORMATION WE: REPORT TO CONSUMER REPORTING AGENC=NCIt Please no notify us if we e report any
irt ti°n about your *.{sl to a con er reporting agency. Your written notice describi he specific
us s a at _he following address: : COMMERCE B _!i-IARR!58URG N.A. LOAN SERVICING 3601 Pe-`' V STREET HARRISBURG, PA 171 1 1.
moan No: 3410850
dela or for o
es or endorses
GENERAL PROVISIONS_ If any part of this Note cannot be enforced, 'this fact will not affect the rest of the Note. Lender r may may y
enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarant
Note, to the extent allowed by taw, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this
signs this Note,-whether notice of as maker, guarantor, accommodation maker is
Note, and unless otherwise expressly stated in writing, no party who sins t g perfect Lender's security interest the collateral; and take ree
Lend
any endorser, shall a released from lntortoor colAll suc lateral- orrties failtt are ! eeuponyor pew or extend (repeatedly and s for
ee th tlLend collateral; a modify
anyone
loan or release any party or guarantor tice to
. All such any other action deemed necessary by Lender without the consent oa tr with whom the modification s?made. The obligations under this Note may
this loan without the consent of or notice to anyone other than the p Y
are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the ATTORNEY enforceability Rof Tany
HE
other provisions of this Note.
CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
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
COST
AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED E OR AND ANY AND
TOGETHER JUDGMENTS WITH ONE OR
CI
ALL AMOUNTS EXPENDED OR ADVANCED COMMISSION BY OF TEN LENDER PERCENT (1RELATING0%TO) OF ANY THE UNPAID COLLATERAL PRINCIPAL RING THIS JUDGMENT NOTE, OR ACCRUED INTEREST F
OF SUIT, AND AN ATTORNEY'S COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($5001 ON
-MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL
PAYMENT
BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER TMSS HALL O BE
UNTIL EXHAUSTED BY ANY ANY EXER EXERCISE IS COF THAT AUTHORITY, BUT SHALL CONTINUE FROM IE TO TIME AND AL
FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. .BORROWER HEREBY WAIVES ANY RIGHT A BORROWER MAY HAVE TO NOTICE OR TO A
HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STAT
SPECIFICALLY CALLED ES ATTENTI N REP R RE BSENTATI R O HAS ENDER
REPRESENTED BY INDEPENDENT CONFESSION
COUN50EL.JUDGINENT PROVISION 70 BORROWER'S ALL PRIOR TO SIGNING THIS NOTE, BORROWERR E AD AND nE DERST OF THE NOTE. PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE
INTEREST RATE PROVISIONS. BORROWER
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
THIS NOTE IS GIVEN UNDER SEAL AND T IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A
SEALED INSTRUMENT ACCORD114G TO LA
BORROWER:
YAN=K CUSTOM HOMES!?-
_
(Seal)
Steve Ya J ., President of Yanek Custom
i
Hom In
s, y
e...?ira,?n,D20.EC T1.]L?61 PF2a
PROMISSORY NOTE
(Continuer)
Page 3
9 31.00.06 Cep. ll"IUW i:. x.oa Sawu.,.h c. 19?i, 1- ?p
USER MO I.?eMp. V.?. '
PROMISSORY NOTE
Account Officer Initials
Loan No call ! Con 992
Loan Date Maturity
Principal $83837350 articular loan or item.
250.00 11-01-2010 11-01-201 2 applicability of this document s. any PC, or item. wmm? and do not limit the app
$416,
References i d due to text length limitations.
n the boxes above are for Lender's use has only y
Any item above containing " been omitte
Lender: METRO BANK
yanek Custom Homes, Inc. COMMERCIAL MORTGAGE DEPARTMENT
Borrower: 8 South Ridge Road y 3801 PAXTON STRlET71
HARRISBURG, PA
Boiling Springs, PA 77007 A. , (888) 937-0004
T w
Date of Note: November 1, 2010
to METRO BANK ("Lender'}, or order, in lawful money of the
mount: $416,250.00
principal R Inc. {'Borrower") promises to pay & 0C)/100 Dollars 1$476,250.001 or so
principal balance of each advance. Interest shall be calculated
PROMISE TO PAY- Yanak Custom Homes,
United States of America, the principal amount of Four Hundred Sixteen Thousand Two Hundred r
much as may be outstanding. together with interest on the unpaid outstanding
principal plus all accrued unpaid interest onnNovember 1, 2012071
from the date of each advance until repayment of each advance.
this loan in one payment of all outstanding P a payment date, beg g a ticable
reed or required by pp
monthly payments of all accrued unpaid interest due as of each p
PAYMENT. Borrower Will pay this
addition, Borrower will pay regular of each month after that. Unless oa d o??ection costs; and then to any late
vent interest payments to be due on, the same day than to principal; then to any unp deli Hate in writing.
9
with all mums will be applied first to any accrued unpaid interest; lace as Lender may
taw, payments
charges. Borrower will pay Lender at Lender's address shown above subject or to at such change other
from time to"inae based
Thenlndex changes
necessarily a
substitute index after
VARIABLE INTEREST RATE. The interest rate on this Note is su ) he lowest
ublished in the Money Rate Section of the Wall Street Journal (the
rate charged by Lender on its loans. It the Index becomes unavailable during the term of this loan, Lender may designate a rently is 3.250% per
which is the prime Rate as p
Index
often notifying h° an Borrower. daily- Lender Borrowillwer utellnde Borrower the current Index rate upon Borrower's request- The interest rate change will not occur mib The
make loans based on other rates as the well. CALCULATION METHODtl
this Note will be calculated as describe in
cur rinci rstandbals balance that of Lender
adjusted if necessary for any minimum and maximum rate limitatio intensrest escr rate on
annum. Interest on the unpaid pal point over the Index, 1
er annum based on a year of 360 days. NOTICE:
below, resulting in an nitial rate of 5.000% Under no circumstances will the
paragraph using a rate of 1.000 percentage i p
applicable law.
eonla 3651360 basis- that is, by applying the ratio of the interest rate
per annum or more than t Nota he is maximum computed alanc
INTEREST this Note be less than 5.000% p multiplied by the actual number of days the principal balance is
s, multiplied by the outstanding principal be, CALCULATION METHOD. Interest on this
over a year of i360 nterest day sited using this method.
or bhe
An interest payable under this Note is comp are earned fully as of the date of the loan anExcept dwill
outstanding- finance charges uired by
PREPAYMENT. Borrower agrees that all loan fees and other prepaid E i ?anrc will not, unless agreed
(whether voluntary or as a result of default!, except as otherwise req interest. Rather, early
subject to refund upon early payment all or a portion of the amount owed earlier `h a mentsvof accrued unpaid without recourse or
s obligation to continue to make
foregoing, Borrower may pay without penalty aid in full",
rights under this Note, and Borrower
of Lender' marked s "p
to by Lender in writing, relieve principal Borrower balance of due, Borrower Borrower agrees not to send Lender payments
payments will reduce the p ment, Lender may accept it without losing any
met p any further amount owed to Lender. All written communications conloernMe do Bak P punts, including any check
similar language. if Borrower sends such a pay 0 Box fiend Harrisburg,
will remain obligated to ay ent constitutes "payment in full' of the amount owed or that is tendered with other
that indicates that the paym ust be mailed or delivered
or other payment instrument other
or limitations or as full satisfaction of a disputed amount m were which is an estimate of
Reseve reserve,
Lender may
17111-9933- automatically
lace 520,000.00 nts of the-Principal shalt be paid Amount om the Interest interest
INTEREST RESERVES. Borrower authorizes Lender to p
interest u Reserve, it from the Interest
the interest due on the Note ("Interest Reserve All interest payme
this ore enterestxceeds will the accrue, Interest as Reserve, described in this i ll Note, o aid interest when due
if any, to Borrower.
Borrower will acc
sin aid interest from the due under interest Reserve.
remaining
deduct accrued p
Reserve, In the event the interest on maturity, Lender will not advance or disburse the
according to the terms of this Note. Up a Payment.
charged e5.000% of the regularly scheduled p y
The principal due upon maturity will not include any remaining interest
a upon final maturity, the interest rate on this Note shall be increased by
LATE CHARGE. If a payment is 10 days or more late, Borrower will be to each succeeding
ER DEFAULT. Upon default, i ing failure Rate Margin'). The Default Rate Margin shall also apply
INTEREST A? e pint margin judgment is entered in connection with this Note, interest will
adding judgment is entered. However, in no event will the interest rate
an additional 4.000 percentag p lied had there been no default. I interest rate change that would have app
continue to accrue after the date of judgment at the rate in effect at the time ju 9
exceed the maximum interest rate limitations under applicable law.
Notet"i under this Note:
DEFAULT. Each of the following shall constitute an vfwhenudue Defaul
payment Default. Borrower fails to make any payment any other term, obligation, covenant or condition contained in this Note or in
other Defaults. Borrower fails to comply with or to perform obligation, covenant or condition contained in any other agreement
with or to perform any term,
any of the related documents or to comply urchase or
between Lender and Borrower. Grantor defaults under any loan, extension of credit, security agreement, p
other creditor Or person that may materially affect any of Borrower's property or
Default in Favor of Third Parties. Borrower or any a . this Note or any of the related documents-
sales agreement, Or arty ether acreement, in favor of any
this Note or perform Borrower's obligations u ?e term, obligation, covenant or condition contained in
Borrower's ability to repay to comply with or perform when due any
Borrower or on Borrower's behalf under this
EnvironmentalDental fault. agreement Failure of any party loan.
any environm executed in connection with any
material respect, etheer r now or at the time made or furnished or becomes false
False Statements. Any warranty, representation or statement made or furnish it ed to Lender by
Note or the related documents is false or misleadi
or misleading at any time thereafter EXHIBIT usiness, the insolvency of Borrower, the appointment or a
.
efit of creditors. any type of creditor workout, or t e
insolvency . The dpartluotf Borrower'satprope g
receiver for any p
Loan No. 883837350
under any bankruptcy or insolvency laws by or against Borrower.
udicial proceeding,
commencement of any proceeding
Commencement of foreclosure or self-help,
I agency against any collateral securing the loan.
Creditor or Forfeiture Proceedings. forfeiture proceedings, whether by j
includes a garnishment of any of Borrower's accounts, including deposit accounts, with he clai. Ho which is tthe his Event of Default she
This Lender s Of the with creditor or
or any other method, by any creditor of Borrower or by any governmenta ever, to the validity or reasonableness of the claim and deposits b
repossession monies or
not apply if there is a good faith dispute by Borrower as
forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceed in
surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being natdequate
a
reserve or bond for the dispute. - guarantor, endorser, surety, or acco mrnod
party or becomes incompetent, or revokes or
Events Affecting Guarantor. Any of the guarantor, endo ser, surety, o i or accommodation
events occurs of any of the indebtedness or any y g gu
disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note.
Change e in ownership of twenty-five percent (25%) or more of the common stock of Borrower. or
In Ownership. Any Chang or Lender believes the prospect of payment
Adverse Change. A material adverse change occurs in Borrower's financial condition,
performance of this Note is impaired.
Insecurity- Lender in good faith believes itself insecure. given a notice of a breach of the
payment is curable and if cured if has not beeafter n g Lender sends written notice to
saCureme provision Provisions. of If this any Note default, within other the than a preceding tdefaultwel in elve months , it may if the cure requires more than fifteen e
Borrower demanding cure such default: (1) cures the default within fifteen { days; or (2) ractical. 0 51
immediately initiates s steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter
as requiroducered by compliance as soon as reasonably p.
continues and completes all reasonable and applicable law, declare the entire unpaid principal
LENDER'days,S RIGHTS. Upon default, Lender may, after necessary giving sstepsuch sufficient notices to produce
immediately due, and then Borrower will pay that amount.
balance under this Note and all accrued unpaid interest y someone ? else to
help collect this Note if Borrower d es s an not pay. B legal expenses,
ATTORNEYS' FEES; EXPENSES. Lender may hire or p Borrower will pay
for reasonable bankruptcy proceedings (including efforts to modify or
reasonable attounderrneys' feesapplicable, taw, expenses Lender's
automatic This stay i or includes, subject to any applicable law, Borrower also will pay any court costs, addition to
whether or not there is a lawsuit, including limits
vacate Lender der that any amount.
injunction!, and appeals. If not prohibited by all other sums provided by law.
federal law applicable to Lender and, to the extent not preempted by federal law,
Lender the
Provisions- This Note has been accepted by
GOVERNING LAW. This Note will be governed by the laws of
the Commonwealth of Pennsylvania without regard to its conflicts of law p
Commonwealth of Pennsylvania.
RIGHT OF SETOFF. To the extent permitted by applicable accounts Borrower law, Lender reserves a right of setoff in all Borrower's accoa ntts with Lender (whether
checking, savings, or some other account)- This includes all accounts Borrower holds jointly will, soiiCOne Else and
against any
open in the future. However, this does not include any IRA Keogh accounts, o 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 and all such accounts.
COLLATERAL. Borrower acknowledges this Note is secured by the following collateral described in the security instrument fisted herein: a
a e dated November 1, 2010, to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania.
Construction Mortg g
for all sums either: (A) advanced in accordance instructions LINE OF CRED(T. This Note evidences a straight line of credit. Once the total amount of principal os been advanced, Borrower is not emit e
time may
to further loan advances. Borrower agrees ' be liable Tint owin gtthe is Note at a of zed
person or (B) credited to any of Borrower's accounts with Lender. The unpaid principal balance
by endorsements on this Note or by Lender's internal records, including daily computer p document or
ro any
deemed rd aopopria or ins tocu nt which
appropriate, re- POST CLOSING COMPLIANCE. re-execute and to tdeliver to Le der ortitsc legal counsel nasr(mayr be other third
transaction to execute and/or with any
instrument signed in connection with with the Loan which was incorrectly drafted and/or signed, as well as any shall, at the option
o Borrower agrees owso complyt comply
should have been signed at nten p(1the 0) days after receipt by Borrower of s ch request.. Failure delivered.
written request n Lender within
Lender, upon notice to Borrower, constitute an event of default under the Loan.
COMMITMENT LETTER COMPLIANCE_ This loan is contingent upon Borrower's compliance with all of the terms and conditions in the of any term of condition therein Lender shalt have
commitment letter issued Lender to Borrower on paYyment inafull of the principal balancehremainng unpaid, together
the right to declare this loan in defauul lt anddem aid, n ether with all interest, which
andp shall have accrued thereon. .
GUIDANCE LINE ADVANCE. This loan facility of $650 O advance under Guidance Line of Credit Number 88883549777 evidenced by a Promissory
heirs, personal representatives,
Note dated March 28, S. in the amount o
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's notify tender if Lender
. Borrower may
successors and assigns, and shall inure to the benefit of Lender and its successors and assigns- Borrowers written notice describing the ORT
CONS
AGENCIES NOTIFY i accura e inffo-rmaINFORMATION
onO about l Borrowers' c ountt((s) to aU onsumerrOreporting agency.
reports s any ny delay or forgo
enfospecificrcing any inacc!racY(ies) should be sent to Lender at the following address:
GENERAL PROVISIONS. If ,,V cr of The Note. Lender may Y
art of this Note cannot be enforced, this fact wiii not affect "ke -person who signs, guarantees a endorses
any p change in the terms o this
anny of of its s rights or remedies under this Note without losing them. Borrower an any
this Note, to the extent allowed law, waive presentment, art aw oosigns hist and Note, notice of whether as dishonormake. r, guarantor Upon a y accommodatat ofion time) maker this
this
; and take d any
Note, and unless otherwise expressly stated in writing, party renew or extend (repeatedli tae f oin the length of
endorser, shall be released from liability- r All such parties s agree that tender may
take
loan or release any party or guarantor r or collateral; or impair, fail to realize upon or perfect Lender's security
any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may and modity
Wiledof The°bthPt enforceability o f Note
this loan without the consent of Note is for any reason d te with rmined wtohom be the unenforceable, modification it than the party are joint and several. If any portion of this any
other provisions of this Note.
CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROMISSORY NOTE
(Continued)
Page 2
PROMISSORY NOTE
(Continued)
Nn_ 883837350
Page 3
OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR A I ANY I HVIt
E CHARGES TAND JANY UDGMENT
PROTHONOTARY OR CLERK UNDER IN SHNOTOEMAND WITH OR WITHOUT OMPLAIID FILED, CONFESS
FOR BORROWER AFTER A DEFAULT
AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE THIS NOTE AND ALL LLATERAL
NOTE, TOGETHER WITH COSTS ACCRUE ALL AMOUNTS EXPENDED Y' ADVANCED BY LENDER OF TEN P RCETINT (10%) OF ANY THEOUNPAID PR NCIIP/IA BALANCE ANTDOR JUDGD NTE EST FOR
OF SUIT, AND AN ATTORNEY'S COMMISSION
VERIFIED BY
NOTE
COLLECTION, BUT IN ANY EVENT NT NOT NOT LESS THAN FIVE HUNDRED DOLLARS (S500) ON DOING,
NOTE OR
THIS
AFFIDAVIT MORE EXECUTIONS MAY ISSUE AUTHORITY GRAN OD SN THIS NOTE TO CONFE SCJOUDGMEN AND AT AGAINST BDT MOSS UNTIL ALL NOT NE
BE SUFFICIENT WARRANT. THE AUT AUT 0
EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO
REPRESENTED FULL OF ALL BY AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIT BORROWER MAY HAVE TO NOTICE OR TO A
STATES THAT EITHER A REP BORROWER OF HAS LE E DEN
HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND INDEDPENTHIS DENT LEGAL COUNSOEL JUDGMENT PROVISION TO BORROWER'S
SPECIFICALLY
UNDERSTOOD
ALL THE PRIOR TO SIGNING THIS NOTE. BORROWRER READS TO THE TERMS OF THE NOTE. PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE
AND
INTEREST RATE PROVISIONS. BORRO
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:
YANEK CUSTOM HOMES, I C.
(Seal)
BY esident of Yanek Custom
Steve T"
c•:
Homes.
USED PAO LnGnp• V.. SS3"?U.OW fiv. EWwE Fw.r.cu Serwn.. Inc 199]. p?0 AE qpn.. r?o" • ^
MASTER PROMISSORY NOTE
Loan Amount: $650,000.00
Loan Number: 88883549777
Dated: March 28, 2008
To purchase improved lots and fund
verticle construction
FOR VALUE RECEIVED, the undersigned, Yanek Custom Homes, Inc., a
Pennsylvania Corporation, (herein called the "Borrower"), hereby promises to pay, On
Demand, to the order of COMMERCE BANK/HARRISBURG, N.A. (herein called the
"Bank") at any of its banking offices the sum of Six Hundred Fifty Thousand Dollars
($650,000.00) (the "Principal Amount"), or so much thereof as shall have been advanced
and be outstanding, plus interest on the unpaid Principal Amount at the "Term Rate".
The "Term Rate" shall be calculated on each advance at a rate equal to New York Prime
plus 1.00%.
Each advance shall be evidenced by an individual note. Repayment of each
advance shall be as follows: Interest only monthly, principal due upon settlement of each
unit financed. The term of each advance shall not exceed two (2) years. Advances shall
be permitted on any business day which the Bank is open for business. The monthly
payments due may be adjusted by the bank to avoid negative amortization.
Interest shall be calculated upon the outstanding principal balance for the actual
number of days elapsed at a daily rate based upon a 360-day year.
VARIABLE INTEREST RATE - The New York Prime Rate of Interest shall mean the
interest rate per annum announced from time to time in various business journals, such as
The Wall Street Journal, as the "Prime Rate of Interest". The New York Prime Rate of
Interest is an index, and loans of the Bank may be established at, above or below the
index. The New York Prime Rate of Interest is not necessarily the Bank's lowest rate of
interest
TERM OF LOAN- The term of this Loan shall be one (1) year. However, this loan shall
be renewable annually at the Bank's option. If the Loan is not renewed the outstanding
availability on the Master Note will be zeroed out, after ninety (90) days written notice to
Borrower, and the remaining principal and interest on the individual, signed Guidance
Line of Credit Advance Agreements shall be paid over the remainder of their scheduled
repayment periods.
LINE OF CREDIT - This Note is a revolving Master Promissory Note for the purchase
of improved residential building lots and the construction of single-family homes thereon.
Advances under this Note, as well as directions for payment from Borrower's accounts,
may be requested orally or in writing by Borrower or by an authorized person. Lender
may, but need not, require that all oral requests be confirmed in writing. Borrower agrees
to be liable for all sums either: (A) advanced in accordance with the instructions of an
EXHIBIT
authorized person or (B) credited to any of Borrower's account with Lender. The unpaid
principal balance owing on this Note at any time may be evidenced by endorsements on
this Note or on Lender's internal records, including any daily computer print-outs. Lender
will have no obligation to advance funds under this Note if: (A) Borrower or any
guarantor is in default under the terms of this Note; (B) Borrower or any guarantor
ceases doing business or is insolvent; (C) any guarantor seeks, claims or otherwise
attempts to limit , modify or revoke such guarantor's guarantee of the Note or any other
loan with Lender; (D) Borrower has applied funds provided pursuant to this Note for
purposes other than those authorized by Lender; or (E) Lender in good faith believes
itself insecure.
PREPAYMENT - Any and all sums due hereunder may be prepaid at any time with no
prepayment or premium.
PAYMENT OF COSTS- In addition to the principal and interest payments specified
above, the Borrower shall pay to the Bank or any other holder hereof, upon demand, all
reasonable costs and expenses (including attorneys' fees and legal expenses) which may
be incurred by Bank or such holder in the enforcement of the Loan.
LATE CHARGE- Bank shall have to right to collect a late charge of five percent (5%)
of the unpaid debt service after expiration of any grace period for payment provided in
the Loan Documents. The grace period for payments shall be ten (10) days.
LIABILITIES- For all purposes of this note, the term "Liabilities" means this note and
any renewals, extensions, and modifications thereof and all other existing and future
liabilities, whether absolute or contingent, of the Borrower to the Bank of any nature
whatsoever and out of whatever transactions arising.
SECURITY INTEREST- To secure payment of Liabilities the Bank shall have a lien
upon and security interest in any balance belonging to the Borrower or any deposit or
other account with the Bank and any other amounts which may be owing from the time to
time by the Bank to Borrower. It shall also have a lien upon and security interest in any
other property delivered, pledged, assigned, or hypothecated to the Bank by the Borrower
as security for the payment of the Liabilities or any portion thereof. The foregoing liens
and security interests shall be independent of any right of set-off which the Bank may
have.
CONFESSION OF JUDGMENT- BORROWER HEREBY IRREVOCABLY
AUTHORIZES THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT
OF RECORD IN PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST BORROWER UPON A DEFAULT UNDER
THIS PROMISSORY NOTE FOR ANY AND ALL AMOUNTS UNPAID ON THIS
PROMISSORY NOTE, INCLUDING INTEREST THEREON TO DATE OF
PAYMENT, TOGETHER. WITH REASONABLE FEES OF COUNSEL AND
COSTS OF SUIT, RELEASING ALL ERRORS AND WAIVING ALL RIGHTS
OF APPEAL. IF A COPY HEREOF, VERIFIED BY AFFIDAVIT, SHALL HAVE
BEEN FILED IN SUCH PROCEEDING, IT SHALL NOT BE NECESSARY TO
FILE THE ORIGINAL AS A WARRANT OR ATTORNEY. BORROWER
HEREBY WAIVES THE RIGHT TO ANY STAY OF EXECUTION AND THE
BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER IN EFFECT.
NO SINGLE EXERCISE OF THIS WARRANT AND POWER TO CONFESS
JUDGMENT SHALL BE DEEMED TO EXHAUST THIS POWER, WHETHER
OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE
INVALID, VOIDABLE OR VOID, BUT THIS POWER SHALL CONTINUE
UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO TIME AS
OFTEN AS BANK SHALL ELECT UNTIL ALL SUMS DUE HEREUNDER
SHALL HAVE BEEN PAID IN FULL.
CERTAIN RIGHTS OF BANK- In addition to al other rights granted herein or
otherwise possessed by it, the Bank shall have the right, which may be exercised at any
time without prior notice to or consent of the Borrower (but with prompt notice thereafter
given), to pledge, assign or transfer this note and any renewals, extensions and
modifications thereof, assigning therewith the Bank's rights in collateral or any portion
thereof given as security and any such pledge, assignee or transferee shall have all rights
of the Bank hereunder with respect to this note and any renewal, extensions and
modifications thereof and any such collateral so assigned therewith.
COMMITMENT LETTER COMPLIANCE - This loan is contingent upon Borrower's
compliance with all of the terms and conditions in the commitment letter issued by
Lender to Borrower on or about March 25, 2008. Upon breach of any term of condition
therein Lender shall have the right to declare this loan in default and demand payment in
full of the principal balance remaining unpaid, together with all interest, which shall have
accrued thereon.
DEFAULTS- The Borrower shall be in default hereunder upon the occurrence of any
event of default set forth in the Business Loan Agreement which events are incorporated
herein by reference, subject to such notice and opportunity to cure as may be provided in
the Loan Documents; said Business Loan Agreement executed of even date herewith.
INTEREST AFTER DEFAULT- Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law, increase the
interest rate on this Note and/or any subsequent Sub-Notes 4.00 percentage points. The
interest rate will not exceed the maximum rate permitted by law. If judgment is entered
in connection with this Note and/or any subsequent Sub-Notes interest will continue to
accrue on this Note and/or any subsequent advances after judgment at the existing
interest rate provided for in this Note and/or any subsequent Sub-Notes.
ACCELERATION- Upon the occurrence of any Event of Default, subject to such notice
and opportunity to cure as may be provided in the Loan Documents, subject to such
notice and opportunity to cure as may be provided in the Loan Documents, in addition to
any other rights or remedies available to it hereunder or under any other Loan Document
or at law or in equity, Bank may exercise any or all of the rights and remedies set forth in
the Business Loan Agreement signed as of even date herewith.
The Borrower waives all right to stay of execution and exemption of property in any
action to enforce any of the Liabilities.
MISCELANEOUS- If an advance is taken other than on the first day of the month
interest shall be calculated and shall accrue based on the number of days the advance is
outstanding prior to the first day of the next month and shall be added to the principal and
interest due on the first (1S) of the next month in addition to the Borrower's regular
monthly payment. Any failure of the Bank to exercise any right hereunder shall not be
constructed as a waiver of the right to exercise the same or any other right at any other
time. The Borrower intends this to be a sealed instrument and to be legally bound
hereby. All issues arising hereunder shall be governed by the laws of Pennsylvania,
without giving effect to the principles thereof relating to conflict of laws, if any.
JURISDICTION- In any legal action to enforce this Note, Borrower irrevocably agrees
that Bank may bring suit in the Court of Common Pleas of Cumberland County,
Pennsylvania or the United States District Court for the Middle District of Pennsylvania
and consents to the jurisdiction and venue in said court. Borrower HEREBY
KNOWINGLY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY MATTER
BROUGHT BY IT OR AGAINST IT UNDER THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT REFERRED TO HEREIN.
WITNESS: BORROWER:
Yanek Custom Homes, Inc.
(seal)
Steve J. / President
Commerce Bank/Harrisburg, N.A.
(seal)
David M. Chajkowski, Commercial Loan Officer
t,JSINESS LOAN AGREEMENI
(ar loan or item
References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particu
Any item above containing " has been omitted due to text length limitations.
Borrower: Yanek Custom Homes, Inc. Lender: COMMERCE BANK/HARRISBURG N.A.
8 South Ridge Road COMMERCIAL BUSINESS DEPARTMENT
3801 PAXTON STREET
Boiling Springs, PA 17007 HARRISBURG, PA 17111
(717) 975-5630
THIS BUSINESS LOAN AGREEMENT dated March 28, 2008, is made and executed between Yanek Custom Homes, Inc. ("Borrower") and
COMMERCE BANK/HARRISBURG N.A. ("Lender") on the following terms and conditions. Borrower has received prior commercial loans from
Lender or has applied to Lender for a commercial loan or loans or other financial accommodations, including those which may be described on
any exhibit or schedule attached to this Agreement. Borrower understands and agrees that: (A) in granting, renewing, or extending any Loan,
Lender is relying upon Borrower's representations, warranties, and agreements as set forth in this Agreement; (B) the granting, renewing, or
extending of any Loan by Lender at all times shall be subject to Lender's sole judgment and discretion; and (C) all such Loans shall be and
remain subject to the terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of March 28, 2008, and shall continue in full force and effect until such time as all of Borrower's
Loans in favor of Lender have been paid in full, including principal, interest, costs, expenses, attorneys' fees, and other fees and charges, or
until such time as the parties may agree in writing to terminate this Agreement.
of all make the
s set forth in this Agreement inethe under Related
of he conditions Advance
CONDITIONS Agreement shall be PRECEDENT ssubjct o the fulfillment to Lender's obligation to
A 9
Documents.
Loan Documents. Borrower shall provide to Lender the following documents for the Loan: (1) the Note; (2) guaranties; (3) together
with all such Related Documents as Lender may require for the Loan; all in form and substance satisfactory to Lender and Lender's counsel.
Borrower's Authorization. Borrower shall have provided in form and substance satisfactory to Lender properly certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note and the Related Documents. In addition, Borrower shall have provided
such other resolutions, authorizations, documents and instruments as Lender or its counsel, may require.
Payment of Fees and Expenses. Borrower shall have paid to Lender all fees, charges, and other expenses which are then due and payable
as specified in this Agreement or any Related Document.
Representations and Warranties. The representations and warranties set forth in this Agreement, in the Related Documents, and in any
document or certificate delivered to Lender under this Agreement are true and correct.
No Event of Default. There shall not exist at the time of any Advance a condition which would constitute an Event of Default under this
Agreement or under any Related Document.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as of the date of this Agreement, as of the date of each
disbursement of loan proceeds, as of the date of any renewal, extension or modification of any Loan, and at all times any Indebtedness exists:
Organization. Borrower is a corporation for profit which is, and at all times shall be, duly organized, validly existing, and in good standing
under and by virtue of the saws of the Commonwealth of Pennsylvania. Borrower is duly authorized to transact business in all other states
in which Borrower is doing business, having obtained all necessary filings, governmental licenses and approvals for each state in which
Borrower is doing business. Specifically, Borrower is, and at all times shall be, duly qualified as a foreign corporation in all states in which
the failure to so qualify would have a material adverse effect on its business or financial condition. Borrower has the full power and
authority to own its properties and to transact the business in which it is presently engaged or presently proposes to engage. Borrower
maintains an office at 8 South Ridge Road, Boiling Springs, PA 17007. Unless Borrower has designated otherwise in writing, the principal
office is the office at which Borrower keeps its books and records including its records concerning the Collateral. Borrower will notify
Lender prior to any change in the location of Borrower's state of organization or any change in Borrower's name. Borrower shall do all
things necessary to preserve and to keep in full force and effect its existence, rights and privileges, and shall comply with all regulations,
rules, ordinances, statutes, orders and decrees of any governmental or quasi-governmental authority or court applicable to Borrower and
Borrower's business activities.
Assumed Business Names. Borrower has filed or recorded all documents or filings required by law relating to all assumed business names
used by Borrower. Excluding the name of Borrower, the following is a complete list of all assumed business names under which Borrower
does business: None.
Authorization. Borrower's execution, delivery, and performance of this Agreement and all the Related Documents have been duly
authorized by all necessary action by Borrower and do not conflict with, result in a violation of, or constitute a default under (1) any
provision of (a) Borrower's articles of incorporation or organization, or bylaws, or (b) any agreement or other instrument binding upon
Borrower or (2) any law, governmental regulation, court decree, or order applicable to Borrower or to Borrower's properties.
Financial Information. Each of Borrower's financial statements supplied to Lender truly and completely disclosed Borrower's financial
condition as of the date of the statement, and there has been no material adverse change in Borrower's financial condition subsequent to
the date of the most recent financial statement supplied to Lender. Borrower has no material contingent obligations except as disclosed in
such financial statements.
Legal Effect. This Agreement constitutes, and any instrument or agreement Borrower is required to give under this Agreement when
delivered will constitute legal, valid, and binding obligations of Borrower enforceable against Borrower in accordance with their respective
terms.
Properties. Except as contemplated by this Agree d in Borrower's financial statements or in writing to Lender
and as accepted by Lender, and except for prop' tly due and payable, Borrower owns and has good title to
all of Borrower's properties free and clear of all EXIiIBIT xecuted any security documents or financing statements
relating to such properties. All of Borrower's pro egal name, and Borrower has not used or filed a financing
statement under any other name for at least the I
Hazardous Substances. Except as disclosed to a riting, Borrower represents and warrants that: (1) During
the period of Borrower's ownership of the Collate eration, manufacture, storage, treatment, disposal, release
BUSINESS LOAN AGREEMENT
Loan No: 88883549777 (Continued)
Page 2
or threatened release of any Hazardous Substance by any person on, under, about or from any of the Collateral. (2) Borrower has no
knowledge of, or reason to believe that there has been (a) any breach or violation of any Environmental Laws; (b) any use, generation,
manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the
Collateral by any prior owners or occupants of any of the Collateral; or (c) any actual or threatened litigation or claims of any kind by any
person relating to such matters. (3) Neither Borrower nor any tenant, contractor, agent or other authorized user of any of the Collateral
shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from any of the
Collateral; and any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations, and
ordinances, including without limitation all Environmental Laws. Borrower authorizes Lender and its agents to enter upon the Collateral to
make such inspections and tests as Lender may deem appropriate to determine compliance of the Collateral with this section of the
Agreement. Any inspections or tests made by Lender shall be at Borrower's expense and for Lender's purposes only and shall not be
construed to create any responsibility or liability on the part of Lender to Borrower or to any other person. The representations and
warranties contained herein are based on Borrower's due diligence in investigating the Collateral for hazardous waste and Hazardous
Substances. Borrower hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event
Borrower becomes liable for cleanup or other costs under any such laws, and (2) agrees to indemnify, defend, and hold harmless Lender
against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer
resulting from a breach of this section of the Agreement or as a consequence of any use, generation, manufacture, storage, disposal,
release or threatened release of a hazardous waste or substance on the Collateral. The provisions of this section of the Agreement,
including the obligation to indemnify and defend, shall survive the payment of the Indebtedness and the termination, expiration or
satisfaction of this Agreement and shall not be affected by Lender's acquisition of any interest in any of the Collateral, whether by
foreclosure or otherwise.
Litigation and Claims. No litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes)
against Borrower is pending or threatened, and no other event has occurred which may materially adversely affect Borrower's financial
condition or properties, other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by Lender in
writing.
Taxes. To the best of Borrower's knowledge, all of Borrower's tax returns and reports that are or were required to be filed, have been
filed, and all taxes, assessments and other governmental charges have been paid in full, except those presently being or to be contested by
Borrower in good faith in the ordinary course of business and for which adequate reserves have been provided.
Lien Priority. Unless otherwise previously disclosed to Lender in writing, Borrower has not entered into or granted any Security
Agreements, or permitted the filing or attachment of any Security Interests on or affecting any of the Collateral directly or indirectly
securing repayment of Borrower's Loan and Note, that would be prior or that may in any way be superior to Lender's Security Interests and
rights in and to such Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements (if any), and all Related Documents are binding upon the signers
thereof, as well as upon their successors, representatives and assigns, and are legally enforceable in accordance with their respective
terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long as this Agreement remains in effect, Borrower will:
Notices of Claims and Litigation. Promptly inform Lender in writing of (1) all material adverse changes in Borrower's financial condition,
and (2) all existing and all threatened litigation, claims, investigations, administrative proceedings or similar actions affecting Borrower or
any Guarantor which could materially affect the financial condition of Borrower or the financial condition of any Guarantor.
Financial Records. Maintain its books and records in accordance with GAAP, applied on a consistent basis, and permit Lender to examine
and audit Borrower's books and records at all reasonable times.
Financial Statements. Furnish Lender with the following:
Tax Returns. As soon as available, but in no event later than one-hundred-twenty (120) days after the applicable filing date for the tax
reporting period ended, Federal and other governmental tax returns, prepared by a professional accountant satisfactory to Lender.
All financial reports required to be provided under this Agreement shall be prepared in accordance with GAAP, applied on a consistent
basis, and certified by Borrower as being true and correct.
Additional Information. Furnish such additional information and statements, as Lender may request from time to time.
Insurance. Maintain fire and other risk insurance, public liability insurance, and such other insurance as Lender may require with respect to
Borrower's properties and operations, in form, amounts, coverages and with insurance companies acceptable to Lender. Borrower, upon
request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at least ten (10) days prior written notice to Lender. Each insurance
policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or
default of Borrower or any other person. In connection with all policies covering assets in which Lender holds or is offered a security
interest for the Loans, Borrower will provide Lender with such lender's loss payable or other endorsements as Lender may require.
Insurance Reports. Furnish to Lender, upon request of Lender, reports on each existing insurance policy showing such information as
Lender may reasonably request, including without limitation the following: (1) the name of the insurer; (2) the risks insured; (3) the
amount of the policy; (4) the properties insured; (5) the then current property values on the basis of which insurance has been obtained,
and the manner of determining those values; and (6) the expiration date of the policy. In addition, upon request of Lender (however not
more often than annually), Borrower will have an independent appraiser satisfactory to Lender determine, as applicable, the actual cash
value or replacement cost of any Collateral. The cost of such appraisal shall be paid by Borrower.
Guaranties. Prior to disbursement of any Loan proceeds, furnish executed guaranties of the Loans in favor of Lender, executed by the
guarantors named below, on Lender's forms, and in the amounts and under the conditions set forth in those guaranties.
Names of Guarantors Amounts
Steve J. Yanek, Jr. Unlimited
Edie J. Yanek Unlimited
Other Agreements. Comply with all terms and conditions of all other agreements, whether now or hereafter existing, between Borrower
and any other party and notify Lender immediately in writing of any default in connection with any other such agreements.
Loan Proceeds. Use all Loan proceeds solely for Borrower's business operations, unless specifically consented to the contrary by Lender in
writing.
Taxes, Charges and Liens. Pay and disci when due all of its indebtedness and obligations, uding without limitation all assessments,
BUSINESS LOAN AGREEMENT Page 3
Loan No: 88883549777 (Continued) r its
roperties
Borrower's
if unpa d,mig t b comeoa lienpor cha ge upon any oprofits,
income, taxes, which charges, penalties ewouldnattlach, and all lawful claim nature, imposed pn Borrower
to the date on
properties, income, or profits. Provided however, Borrower will not be required to pay and discharge any such assessment, tax, charge, by appropriate
and levy, have established ongBoas (1) the legali of the same rrower's books adequat reserves alwi with respect ols ch ccotested assessmentPtax, charge, levy,(lenBorrcla m
shall
in accordance with GAAP.
Performance. Perform and comply, in a timely manner, with all terms, conditions, and provisions set forth in this Agreement, in the Related
Documents, and in all other instruments and agreements between Borrower and Lender. Borrower shall notify Lender immediately in
writing of any default in connection with any agreement.
Operations: Maintain executive and management personnel with substantially the same qualifications and experience as the present
executive and management personnel; provide written notice to Lender of any change in executive and management personnel; conduct its
business affairs in a reasonable and prudent manner.
Environmental Studies. Promptly conduct and complete, at Borrower's expense, all such investigations, studies, samplings and testings as
may be requested by Lender or any governmental authority relative to any substance, or any waste or by-product of any substance defined
as toxic or a hazardous substance under applicable federal, state, or local law, rule, regulation, order or directive, at or affecting any
property or any facility owned, leased or used by Borrower. nances, and
perat! ions, and to theeuse orrocc pancy of thall
reaft Compliance with Gove eto the conduct of Borrower's properties, blusinesses andregulat
governmental authorities s applicable
Collateral, including without limitation, the Americans With Disabilities Act. Borrower may contest in good faith any such law, ordinance,
or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Borrower has notified Lender in
writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Collateral are not jeopardized. Lender may
require Borrower to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest.
Inspection. Permit employees or agents of Lender at any reasonable time to inspect any and all Collateral for the Loan or Loans and , and
recor Borrower's
or at anystimechereafter ma nta ns anyy recordse( n? ud ng without limi ation
ebooks, acpcounts, aanndtoreco examine or audit records. If Borrower now Borrower's
Borrower's
computer generated records and computer software programs for the generation of such records) in the possession of a third party,
Borrower, upon request of Lender, shall notify such party to permit Lender free access to such records at all reasonable times and to
provide Lender with copies of any records it may request, all at Borrower's expense.
with
annually
east
Lender
g by Lend
n writ
Compliance Unle
Borrower chief f nancialeofrficer, or others officereor Ipe son'naccceptab eeto Lendeer, cert fying Ithat the rep ese tat ons anldawarrrant es setyforth in this
chief
Agreement are true and correct as of the date of the certificate and further certifying that, as of the date of the certificate, no Event o
Default exists under this Agreement.
Environmental Compliance and Reports. Borrower shall comply in all respects with any and all Environmental Laws; not cause or permit to
existof an intentional or unintentional action or omission on Borrower's part or on , as a by Borrower, any environmental activity where damage may result to the environment, h nunless such environmental
wed and/or occupied mental
0
activity is pursuant to and in compliance with the conditions of a permit issued by the appropriate federal, state or local governmental
authorities; shall furnish to Lender promptly and in any event within thirty (30) days after receipt thereof a copy of any notice, summons, agency
conce
trumentality
intentiona lien, citation,
nal action directive, or om other ems part' nncofrom any n connection with ranyeenvironme tal,activity whether or notrtherea sydamage to Ithe
unintentional
environment and/or other natural resources.
Additional Assurances. Make, execute and deliver to Lender such promissory notes, mortgages, deeds of trust, security agreements,
assignments, financing statements, instruments, documents and other agreements as Lender or its attorneys may reasonably request to
evidence and secure the Loans and to perfect all Security Interests. ulation
interpret
the
ne, or
tion RECOVERY
f any tthhereof b LanCOSTS. If the yy court or administrative norr of or any change in governmental authorityy(inlaw, rule, cludi g anygrequest or policcyllnot having the forceaof law)
application o
shall impose, modify or make applicable any taxes (except federal, state or local income or franchise taxes imposed on Lender), reserve tal
he cost
ncrease
would (A)
which
req
to Lender for credit facil t escto'wh ch this Ag eementr ents or lates, the (B)r o elduce the amounts payable to Lendertunder this Agreementeor ethenRelat d 1Document ,
this
credit
A after
amounts as will compensate to the wtithin five (5) daysh reduce the rate of return
Borrower o agrees to s pay capital Lender such additional of Lender's
Agreeeementt relates, then Bo
Lender's written demand for such payment, which demand shall be accompanied by an explanation of such imposition or charge and a
calculation in reasonable detail of the additional amounts payable by Borrower, which explanation and calculations shall be conclusive in the
absence of manifest error.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender's interest in the Collateral or i
Borrower fails to comply with any provision of this Agreement or any Related Documents, including but not limited to Borrower's failure to
of besobligated to) take'anmy ato discharge or ction that Lenderydeems aplpr p9 ate, incl ding but not to discharging or
but shall amounts
discharg or pay Borrower's behalf when
paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on any Collateral and paying all costs for
insuring, maintaining and preserving any Collateral. All such expenditures incurred or paid by Lender for such purposes will then bear interest at
demand Pa B)e be added to the All ofethesNowill become
the rate Inunder the Note dthe ebtedness ptiontl will pa (A) by be Lender to payable h on date of
te a
a part of the and, at Lender's and be
apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy;
or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this Agreement is in effect, Borrower shall not, without the
prior written consent of Lender:
Indebtedness and Liens. (1) Except for trade debt incurred in the normal course of business and indebtedness to Lender contemplated by
this Agreement, c, incur or assue
edge, lease, grantaa security inte est in, oreencumberfanyb of Borrower's as sets (except as laleases, (2) sell, transfer, llowed as Permitted Liens),norrt(3) mortgage, assign,
p
recourse any of Borrower's accounts, except to Lender.
Continuity of Operations. (1) Engage in any business activities substantially different than those in which Borrower is presently engaged,
or sell
(2)11 cease operations, of business, or acquire (3) pay any dividends on Borrower's stock (otherlth name, inits transfer
-t of he ordiinav course stock),
BUSINESS LOAN AGREEMENT
Loan No: 88883549777 (Continued)
Page 4
provided, however that notwithstanding the foregoing, but only so long as no Event of Default has occurred and is continuing or would
result from the payment of dividends, if Borrower is a "Subchapter S Corporation" (as defined in the Internal Revenue Code of 1986, as
amended), Borrower may pay cash dividends on its stock to its shareholders from time to time in amounts necessary to enable the
shareholders to pay income taxes and make estimated income tax payments to satisfy their liabilities under federal and state law which
arise solely from their status as Shareholders of a Subchapter S Corporation because of their ownership of shares of Borrower's stock, or
purchase or retire any of Borrower's outstanding shares or alter or amend Borrower's capital structure.
Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance money or assets to any other person, enterprise or entity, (2)
purchase, create or acquire any interest in any other enterprise or entity, or (3) incur any obligation as surety or guarantor other than in
the ordinary course of business.
Agreements. Borrower will not enter into any agreement containing any provisions which would be violated or breached by the
performance of Borrower's obligations under this Agreement or in connection herewith.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to Borrower, whether under this Agreement or under any
other agreement, Lender shall have no obligation to make Loan Advances or to disburse Loan proceeds if: (A) Borrower or any Guarantor is in
default under the terms of this Agreement or any of the Related Documents or any other agreement that Borrower or any Guarantor has with
Lender; (B) Borrower or any Guarantor dies, becomes incompetent or becomes insolvent, files a petition in bankruptcy or similar proceedings,
or is adjudged a bankrupt; (C) there occurs a material adverse change in Borrower's financial condition, in the financial condition of any
Guarantor, or in the value of any Collateral securing any Loan; or (D) any Guarantor seeks, claims or otherwise attempts to limit, modify or
revoke such Guarantor's guaranty of the Loan or any other loan with Lender; or (E) Lender in good faith deems itself insecure, even though no
Event of Default shall have occurred.
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 debt against any and all
such accounts.
DEFAULT. Default will occur if payment in full is not made immediately when due.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where otherwise provided in this Agreement or the Related
Documents, all commitments and obligations of Lender under this Agreement or the Related Documents or any other agreement immediately will
terminate (including any obligation to make further Loan Advances or disbursements), and, at Lender's option, all Indebtedness immediately will
become due and payable, all without notice of any kind to Borrower, except that in the case of an Event of Default of the type described in the
"Insolvency" subsection above, such acceleration shall be automatic and not optional. In addition, Lender shall have all the rights and remedies
provided in the Related Documents or available at law, in equity, or otherwise. Except as may be prohibited by applicable law, all of Lender's
rights and remedies shall be cumulative and may be exercised singularly or concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Borrower or of any
Grantor shall not affect Lender's right to declare a default and to exercise its rights and remedies.
POST CLOSING COMPLIANCE. Borrower agrees to execute, re-execute, cause a Guarantor(s) or other third party(ies) involved in the loan
transaction to execute and/or re-execute and to deliver to Lender or its legal counsel, as may be deemed appropriate, any document or
instrument signed in connection with the Loan which was incorrectly drafted and/or signed, as well as any document or instrument which
should have been signed at or prior to the closing of the Loan, but which was not so signed and delivered. Borrower agrees to comply with any
written request by Lender within ten (10) days after receipt by Borrower of such request. Failure to Borrower to so comply shall, at the option
of Lender, upon notice to Borrower, constitute an event of default under the Loan.
COMMITMENT LETTER COMPLIANCE. This loan is contingent upon Borrower's compliance with all of the terms and conditions in the
commitment letter issued by Lender to Borrower on or about March 25, 2008. Upon breach of any term of condition therein Lender shall have
the right to declare this loan in default and demand payment in full of the principal balance remaining unpaid, together with all interest, which
shall have accrued thereon.
REQUIRED DEPOSIT ACCOUNT. A personal deposit relationship of the Guarantors to be established with Commerce Bank at or prior to closing.
DRAW PROVISIONS. 1) Title Insurance in the amount of the loan for each unit financed. 2) Advances limited to 75% of the appraised value of
the home being constructed. 3) Borrower will be limited to 2 spec homes and 1 home under contract financed under the subject facility at any
one time. 4)Prior to making advances for vertical construction'the borrower shall provide: (a) Copy of building plans. (b) Specifications listing.
(c) Cost break-out. (d) Copy of building permit.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement:
Amendments. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties
as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement 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. Borrower agrees to pay upon demand all of Lender's costs and expenses, including Lender's reasonable
attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Agreement. Lender may hire or pay
someone else to help enforce this Agreement, and Borrower shall pay the costs and expenses of such enforcement. Costs and expenses
include Lender's reasonable attorneys' fees and legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Borrower also shall pay all court costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the
provisions of this Agreement.
Consent to Loan Participation. Borrower agrees and consents to Lender's sale or transfer, whether now or later, of one or more
participation interests in the Loan to one or more purchasers, whether related or unrelated to Lender. Lender may provide, without any
limitation whatsoever, to any one or more purchasers, or potential purchasers, any information or knowledge Lender may have about
Borrower or about any other matter relating to the Loan, and Borrower hereby waives any rights to privacy Borrower may have with respect
to such matters. Borrower additionally waives any and all notices of sale of participation interests, as well as all notices of any repurchase
of such participation interests. Borrower also agrees that the purchasers of any such participation interests will be considered as the
absolute owners of such interests in th . oan and will have all the rights granted under participation agreement or agreements
governing the sale of such participation it sts. Borrower further waives all rights of offset . junterclaim that it may have now or later
BUSINESS LOAN AGREEMENT
Loan No: 88883549777 (Continued) Page 5
against Lender or against any purchaser of such a participation interest and unconditionally agrees that either Lender or such purchaser may
enforce Borrower's obligation under the Loan irrespective of the failure or insolvency of any holder of any interest in the Loan. Borrower
further agrees that the purchaser of any such participation interests may enforce its interests irrespective of any personal claims or
defenses that Borrower may have against Lender.
Governing Law. This Agreement 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 Agreement has been accepted by Lender
in the Commonwealth of Pennsylvania.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Agreement 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 Agreement 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 Agreement. No prior waiver by Lender, nor any course of
dealing between Lender and Borrower, or between Lender and any Grantor, shall constitute a waiver of any of Lender's rights or of any of
Borrower's or any Grantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement,
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.
Notices. Unless otherwise provided by applicable law, any notice required to be given under this Agreement shall be given in writing, and
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 Agreement. Any party may change its address for notices
under this Agreement 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, Borrower agrees to keep Lender informed at all times of Borrower's current address. Unless otherwise
provided by applicable law, if there is more than one Borrower, any notice given by Lender to any Borrower is deemed to be notice given to
all Borrowers.
Severability. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible,
the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so
modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability
of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement.
Subsidiaries and Affiliates of Borrower. To the extent the context of any provisions of this Agreement makes it appropriate, including
without limitation any representation, warranty or covenant, the word "Borrower" as used in this Agreement shall include all of Borrower's
subsidiaries and affiliates. Notwithstanding the foregoing however, under no circumstances shall this Agreement be construed to require
Lender to make any Loan or other financial accommodation to any of Borrower's subsidiaries or affiliates.
Successors and Assigns. All covenants and agreements by or on behalf of Borrower contained in this Agreement or any Related
Documents shall bind Borrower's successors and assigns and shall inure to the benefit of Lender and its successors and assigns. Borrower
shall not, however, have the right to assign Borrower's rights under this Agreement or any interest therein, without the prior written
consent of Lender.
Survival of Representations and Warranties. Borrower understands and agrees that in extending Loan Advances, Lender is relying on all
representations, warranties, and covenants made by Borrower in this Agreement or in any certificate or other instrument delivered by
Borrower to Lender under this Agreement or the Related Documents. Borrower further agrees that regardless of any investigation made by
Lender, all such representations, warranties and covenants will survive the extension of Loan Advances and delivery to Lender of the
Related Documents, shall be continuing in nature, shall be deemed made and redated by Borrower at the time each Loan Advance is made,
and shall remain in full force and effect until such time as Borrower's Indebtedness shall be paid in full, or until this Agreement shall be
terminated in the manner provided above, whichever is the last to occur.
Time is of the Essence. Time is of the essence in the performance of this Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. 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 Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code. Accounting words and terms not
otherwise defined in this Agreement shall have the meanings assigned to them in accordance with generally accepted accounting principles as in
effect on the date of this Agreement:
Advance. The word "Advance" means a disbursement of Loan funds made, or to be made, to Borrower or on Borrower's behalf on a line
of credit or multiple advance basis under the terms and conditions of this Agreement.
Agreement. The word "Agreement" means this Business Loan Agreement, as this Business Loan Agreement may be amended or modified
from time to time, together with all exhibits and schedules attached to this Business Loan Agreement from time to time.
Borrower. The word "Borrower" means Yanek Custom Homes, Inc. and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
Collateral. The word "Collateral" means all property and assets granted as collateral security for a Loan, whether real or personal property,
whether granted directly or indirectly, whether granted now or in the future, and whether granted in the form of a security interest,
mortgage, collateral mortgage, deed of trust, assignment, pledge, crop pledge, chattel mortgage, collateral chattel mortgage, chattel trust,
factor's lien, equipment trust, conditional sale, trust receipt, lien, charge, lien or title retention contract, lease or consignment intended as a
security device, or any other security or lien interest whatsoever, whether created by law, contract, or otherwise.
Default. The word "Default" means the Default set forth in this Agreement in the section titled "Default".
Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances
relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.,
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or
regulations adopted pursuant thereto.
Event of Default. The words "Event of Def-ult" mean any of the events of default set forth in " ;s Agreement in the default section of this
Agreement.
dUSINESS LOAN AGREEMENT
(Continued)
I nan No: 88883549777
Page 6
GAAP. The word "GAAP" means generally accepted accounting principles.
Grantor. The word "Grantor" means each and all of the per o Inor entities granting a Security Interest in any Collateral for the Loan,
including without limitation all Borrowers granting such a
Guarantor. The word "Guarantor" means any guarantor, surety, or accommodation party of any or all of the Loan. that,
quantity sical,
of their
ecause
may causeu ort pose s"a present mean ator' potent al bhazard to human health oro thentenviirron or nment ywhen
Hazardous Substances. The words "Hazardous
chemical or infectious characters enerated, manufactured, transported or otherwise handled. The words "Hazardous
hazar
improperly used, treated, stored, disposed of, g any
dous or Substances" are used in their very
ef he Environmental Laws. The tt'er?mu"Hazardous 5 bstances" also includes, w thoubt l mit tion, petroleum
waste as defined by or listed and
and petroleum by-products or any fraction thereof and asbestos. nced
Related Documents
including all Indebtedness. The word "Indebtedness"
debtedness and indandebtedness whi h Borrower sr responsible under this Agreement or'under andy
interest together with all other her indebtedness
of the Related Documents.
Lender. The word "Lender" means COMMERCE BANK/HARRISBURG N.A., its successors and assigns. financial
from Lender to
accommod
descriiibedfton
whether Loan. The word "Loan" means and all
without I mtation those loos andafinancial accommodationsrd scribed herein ow
existing, and however evidenced, including
any exhibit or schedule attached to this Agreement from time to time. execu
amount
princip
c. in
Custom
Yanek
28 Note. The word "Note" means thef °extens ons ofymodif cat ions of, re nancrings of,econsol dat ions of, and s bsstiitutions fate orrdt ea note or
2008, together with all renewals ls ,
credit agreement. " mean
secur
and
faith; w(3) b lie a srrof materialmen,
securing Permitted Liens. The words tints ' ordsimilar charges( lieithernsnot yet due ornbeing contested in goodedness
th
Borwhich rower are in thnot
e
m liens for taxes, emen, or carr
securordinary ity interests upon or in anyipro roperraid acquired securing or obligations
s, o mechanics, nt; (4) upurchase moneyrlie sr or arising in
of business to secure indebtedness outstanding on the date of this Agreement or permitted to be incurred
yet delinquent; (
ordinary course of pu
security
s and
constitute Liens
nterests which, paragraph this Agreenti tled approved by he dLende a ndwr t ng; and) (6) lienthose liens and'security interests wh chh n ttheeagg t gis Agreement,
have been disclosed and an immaterial and insignificant monetary amount with respect to the net value of Borrower's assets. ments, loan
agreements, Related Documents. The words agreements, "Related Documents"
mortgages deedslof trrustssecunoty deeds, collateral mortgages a and all other instruments,
agreements, guaranties, security
agreements and documents, whether now or hereafter existing, executed in connection with the oar. agreements, promises, covenants,
Security Agreement. The words "Security Agreement" mean and include without limitation any arrangements, understandings or other agreements, whether created by law, contract, or otherwise, evidencing, governing, representing, or
present
teral
creating a Security Interest. ion, an
all
and
se u ty tdeed, oass gnme t, spledge, crop pledge, chattel
future Security Interest. The ords
en, charge, "Security eInterest"
mortgage, deed tof trusty
ncumbra encumbrance, mean,
whether in the form of
mortgage, collateral chattel mortgage, chattel trust, factor's lien, equipment trust, conditional sale, trust receipt, lien or title retention
contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever whether created by law,
contract, or otherwise.
MARCH O 2008 HIS BUSINESS LOAN AGREEMENT AND BORROWER AGREES
BORROWER ACKNOWLEDGES HAVING READ
LOAN AGREEMENT L THE PROVISIONS
ITS TERMS. THIS BUSINESS IS DATED 28, .
THIS AGREEMENT IS GIVEN UNDER ACCORDING IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE
EFFECT OF A SEALED INSTRUMENT TO LAW.
BORROWER:
YANEK CUSTOM HOMES, INC.
lSeaq
44*1 Presidnt of Yanek usom
LENDER:
COMMERCE BANK/HARRISBURG N.A.
/
By: (Seal)
C?
David M. Chajkowski, Commercial Loan Officer
LASER PRO Ls,li"p. Vs. 8.]9.00.008 Cop. Hrlentl Fnr?CiY 5"Wtions, Inc. 1997, 3008. N Mphu R-W. - PA SACMLPL\C4 ,FC TR-34891 PP-19
Borrower: Yanek Custom Homes, Inc.
8 South Ridge Road
Boiling Springs, PA 17007
Guarantor: Steve J. Yanek, Jr.
8 South Ridge Road
Boiling Springs, PA 17007
Lender
COMMERCE BANK/HARRISBURG N.A.
COMMERCIAL BUSINESS DEPARTMENT
3801PAXTON STREET
HARRISBURG, PA 17111
(717) 975-5630
and y
For good and valuable
and aDti PERT Ro A heEndebtednes of Borrower to Lender, nuthenperformance absolutely and discharg'e' ofalall
CONTINUING GUARANTEE OF PAYMENT
and
performa
payment
guarantees full and punctual pay guaranty of
else obl gated to
of collection Borrower's obligations undethe Related r the Note DocumewhennLendets.
not exhausted Lender's andemedies gaf st anyo net
Indebtedness
other
any
Guaranty
Lender can enforce this Guaranty against uring
ndebtedness
oncdema d, in legal ender of the United States of Ameriiica int same-day funds, w thout set-off or
antor pay the Indebtedness or against any Lender or collaterl
will make any payments to
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. from INDEBTEDNESS. The word "unpaid interest thereon Guaranty
collection r, pe mittdeby law, rand aon ble
one or more times, accrued p existing
hereafter attorneys' fees, arising from collectively ely or interchangeably w h othe ss owes or will owe- Lenderform, ' Indebted ess" includes awithoutr limitation, and all debts, that Borrower individually or c c
loans, advances, debts, overdraft indebtedness, credit card indebtedness, lease obligations, liabilities and obligations under any interest rate
protection agreements or foreign currency exchange agreements or commodity price protection agreements, other obligations, and liabilities of
due by
Borrower, and any present or future judgments against Borrower, future advances, loans or transactions that renew, extend, modify, refinance, r involuntarily
incurred
their consolidate substitute these contingent; liquidated qu datededetermined oroundeterm ned direct or ndi ect;tprimary or secondary in
terms or acceleration; absolute or nting9ent; or sever nature arising from a gawritn-Lender orsanothelr lornothers; barred ror'unenforceableaagainsdteBor ower foreanyaeason
non-negotiable instrument or 9; originated by
whatsoever; for any transactions afterwards increased foreinstar any don (such as infancy, insanity, ultra wires or otherwise); and originated then
, Lender'
reduced or extinguished and then itional
from Guarantor
gua
provideddbelow to thran e contrary) affe t or invalidatesa yhsu h otherlguaranties.
under If Lender presently holds one or more guaranties, or
y shall not hereaer receives
shalt cumulative. This Guaranty re ate liability under the terms of this Guaranty and any such other unterminated guaranties.
Guaran ntor's liability will be Guarantor's agg g GUARANTOR
THE FULL CONTINUING GUARANTY. FTHIS ORMIASNACE "CONTINUING
SATISFACTION OF"THED ND BTI DNESS OF BOR OWERSTO ENDER,NNOW EXISTINGAOR
PUNCTUAL PAYMENT, ACQUIRED, ING BASIS. HEREAFTER ARISING OR R OR DIMINISHN GUAND ARANTTOR'SUOBLIGATIONS ANDOLIABILITY UNDER THIS GUARANTY FOR ANY
INDEBTEDNESS WILL NOT DISCHARGE
REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO
r
BALANCE FROM TIME TO TIME. witho
Lender DURATION OF GUARANTY. Bor ower, and will rclont continue in fullNfoerce until all the Indebt dness ncurred or'contract dcbe of enrece pt by Lender ornder of any
uaranty
und
notice to Guarantor o and
in bw'rriting. G arantor's wr'ittens notice of
have any notice of revocation shall f Guarantor been fully and
elect to revolkepths Guaranty, Gua antlorfmayronlyrdo sher
other place
been performed in full. I such
designa revocation must be mailed to Guaranty wll apply ifioe only to new ?ndebtednessecreat d after actual re apt by Lender of Gudarantor's written revocation.
the
Written revocation this Gua Y s not include
Fort his
ime For this purpose and without ulimitation, the term idated, undetermined nor notddueeandswh chelaterr becomes absolute, liquidated hdetermi edtor due. notic
revocation is contingent, o
a revocation; any renewals, extensions, substitution, and modifications of
purpose and without under that does include all or part of the
revocation, incurred under limitation,
a commitment ebted the Indebtedness. This e der s actual notice of Guarantor's death. S bjectdto thenfo egoing, Guaran or'srexecutortor admin stratordoraother
with
and
Lender's migh
incapacity, regardless of
effect legal representative may terminate
other,gua antyrof t e'Ind btedness shalltnotvaffectnthe liab lity of G arantora under th is
termination this Guaranty of in
ors under this
Release of any other guarantor or remain
Guaranty. It revocation Lender receives from any one or more Guarantors eamount of thefIndebtednesls covered by this'Guaranty,tand Guarantor
not constitute a
Guaranty. It is anticipated that fluctuations may occur in the aggregate of the zero
specifically ackn uara and agrees Guaranty is binding upon Guarantor andlGuarantor'ss het s, succe sorsllaars nd (asOsignns so loing as any oft the
termination of this is G G tY This
Indebtedness remains unpaid and even though the Indebtedness may from time to time be zero dollars ($0.00). her
reof,
ation
any
or a
(A) prior to re ocation as set forthrabove tormake
thout not GUARANTOR'S AUTHORIZATION LNDER. Guarantor
under this Guaranty, f ometimetto time:fore
otherwise extend
, or
rrower
demand and without lessening Guaannto r goods
oreotherw seechange one oromo a times the time for payment
one or more additional secured
(B) to alter, compromise, renew, extend, lease eq
additional credit to Borrower; art of iess, including increases and decreases of the rate of interest on the
or other terms of the Indebtedness or any p an term; (C) to take and hold security for the payment of
Indebtedness; extensions may be repeated and may EXHIBIT r decide not to perfect, and release any such security, with
or this Guarwithout anty or the Indebtedness, and exchange, en sue, or deal with any one or more of Borrower's sureties,
of
the substitution of new collateral; (D) to e; (E) to determine how, when and what application
endorsers, or other guarantors on any terms or in ty and direct the order or manner of sale thereof, including
payments and credits shall be made on the Indebted urity agreement or deed of trust, as Lender in its discretion
may without limitation, any ell, icial sale permitted rt of the Indebtedness; and (H) to assign or transfer this
determine; (G? to sell, transfer, assign or gr a
. -OMMERCIAL GUARANTY
COMMERCIAL GUARANTY
Loan No: 88883549777 (Continued)
Page 2
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 FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than one-hundred-twenty (120) days after the end of each fiscal year,
Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor.
Tax Returns. As soon as available, but in no event later than one-hundred-twenty (120) days after the applicable filing date for the tax
reporting period ended, Federal and other governmental tax returns, prepared by Guarantor.
All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by. applicable -law; Guarantor waives any right to require Lender (A) to continue lending
money or to extend other credit to Borrower; (B) to make any presentment, protest, demand, or notice of any kind, including notice of any
nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower,
Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional
loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor;
(D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with
any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lender's power; or (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.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender
(whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts
Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender
may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. 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 o*` actions as Lender deems necessary or appropria* ) perfect, preserve and enforce its rights
under this Guaranty.
COMMERCIAL GUARANTY
(Continued)
Loan No: 88883549777
Page 3
ovisions
MISCELLANEOUS PROVISIONS. The following miscellaneous pr are a part of this Guaranty: he entire Amendments. This
in h writing and
to this Guaranty shall be effective unless given of
Guaranty, togeer
No alteration of or amendme constitutes t
in his with any
the matters set
signed by the party or parties sought to be charged or bound by the alteration or amendment.
Attorneys' Fees; and Expenses. Guarantor agrees to pay demand all of Lender's legal expenses, incurred inoconn ction with t enenforcement of thiseG arantyludLendernmay s hire or pay
expe ses
Costs and
enforcement
attorneys' fees and nses
expenses shawhethell pay not the a is a l wsut Sncluding rea onable attorneys' feesnand
someone else to reasonable enforce attorneys' fees and legal Guarantor
include Lender's
legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the
provisions of this Guaranty.
Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the
laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. and
Guaranty;
tands
under
fully
had Integration. Guarantor by attorney with respectdto this Gua antysthe Guaira ty fully reflects Guarantor's intentions and parol
from
opportunity to be be d Y Guarrantor holds
losses evidence is not required
fees) sufferednori curved bydLenderr as adresult of anyebreachlby G u antor of the
rneys'Guaranty.
lud the terms of
att this
ostsinterpret
claims, damages,
warranties, representations and agreements of this paragraph. words Interpretation. llbecases en used in the plural where athencontext and construction so requi e; anduwhere there isrmore'thaneone Borrower
the
be deemed to have uarantor
orrower named in this
llmean tall and any uaranty them.The wordsn"Gua antor," "Bor rower," a d "Lender" inBclude the hers, successors",
t any hat
respectively shall of each of them. If a
assigns, and t knot mean th at the rest of th soGuar'antytwa I n t be veal dnorfenf'orced raTherefoore,val' oourtswill houldenforcenot ofithe
it is not unenforceable.
necessary for Lender rto imore of
nquire
fact si itself wmay Borrowersor Gu'rantorGuaranty
corporations, partnerships, l mitedrliab lity ompanies,dor to be similar entities, invalid
into act into the powers
upon the p ofessed exerrc se of suchrpowers hall be guparapnt ed under th is
and any Guarantor or of the
created in reliance directors,
their behalf,
Guaranty.
Notices. Unless otherwise provided by applicable law, any notice required to be given under this Guaranty shall be given in writing, and, red, w
teleiac
eived by
imile except for revocation notices by
when Gdepos deposited with a enateffective when ionally r cognizeduoverdn ght courier, or,a ft mailed cwhenn depos ted in the (United
otherwise required by law),
States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Guaranty. ran
of the
upon
and sh
delivery All r dt"DURAT ON OFtGUARANTYor shall be Awriti ny party mayalchangel be address for notices u derthisaG aranty by g t ruin ing formal section written
Guaranty anty entitle
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. not
ver and
Guaranty
have
d to
No Waiver by Lender.
. No delaa homiss oneonetheepart of Le der end exany erc siing anyeightsshall operatelassaswai eralof s ch'ight orvany other
nor any otherwise to demand
between
signed by Lender. delay or cons right. waiverby that provisionloroanyfotthis her provision ofath soGuarantye No pr ortlwa waiver waiver of
strict compliance
Lender and the Guarantor, of Lender is required 'under fthany of Lender's is Guaranty, the g ranting of such consent bysLender tin any instance future shalll not constitute
Whenever
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, persona
representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. meanings
used
when
ms
uaranty DEFINITIONS. following The refeences capitalized wor and terms
dollar amo nts shall melan have the amounts iln? awu l money of he Un ted States of Amer ca. UWordsnless
stated to the contrary, . al
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 Yanek Custom Homes, Inc. and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Steve J. Yanek, Jr., and in each
case, any signer's successors and assigns.
Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lender.
Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means COMMERCE BANK/HARRISBURG N.A., its successors and assigns. credit Note. T
with all renewals of, extens ions promisory ficationsdof, refinancings of, ctonsolidations
he word "Note" loan obligations in favor of Lender, together limitation
Borrower's
of and substitutions for promissory notes or credit agreements.
deeds, collateral mortg ges,and all other instruments,
ag"Related reements, Documents" mtgges, deeds t of trust promissory security notes,
Related Documents. sh words
agreements, guaranties, security
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
r_nNFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
COMMERCIAL GUARANTY
Loan No: 88883549777 (Continued) Page 4
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER
JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE
CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE
INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID
PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500)
ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR
A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY
TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL
CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY.
GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH
CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED MARCH 28, 2008.
THIS GUARANTY IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT
OF A SEALED INSTRUMENT ACCORDING TO LAW.
GUARANTOR:
X (Seal)
e .
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
) SS
On this, the day of , 20 , before me
the undersigned Notary Public, personally appeared Steve J. Yanek, Jr., known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he or she executed the same for the
purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
Notary Public in and for the State of
r,o -9. vw.'J.05.00.005 Cap. HaA Fn-a SolaYana. Mc. I N7, 2005. N Righn R- . PA S:,FnLRLIE=0 TA-2", V Ia
VERIFICATION
i, STEVE J. YANEK, JR., do hereby verify that the facts stated in the foregoing instrument
are true and correct to the best of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn
falsification to authorities.
Stev Y F,J
Date: -?-- / T /Z
VERIFICATION
I, EDIE J. YANEK, do hereby verify that the facts stated in the foregoing instrument are true
and correct to the best of my knowledge, information and belief. I understand that false statements
herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to
authorities.
Edie J. Yane
Date: /'?`7 -/Z
CERTIFICATE OF SERVICE
I It-
AND ---?^n
NOW, this C? day of U v t , 2012, I, Anna M. Hause,
secretary for the law firm of Kundrat & Associates, ounsel for Defendant, hereby certify that a
true and correct copy of the foregoing Petition to Open Judgment was served via first class mail,
postage prepaid addressed to the parties or counsel of record as follows:
Scott A. Dietterick, Esquire
JAMES, SMITH, DIETTERICK & CONNELLY, LLP
P.O. Box 650
Hershey, PA 17033
KUNDRAT & ASSOCIATES
Anna M. Hause
107 Boas Streets
Harrisburg, PA 17102
717-232-3755
KUNDRAT & ASSOCIATES
LAW OFFICES
107 BOAS STREET
HARRISBURG, PENNSYLVANIA 17102
JOHN S. KUNDRAT - LL. M. Tax (717) 232-3755 E-mail: kundrat-associates@pa.net
,F,Iay'17§2?d1l
Hand-Delivery
Prothonotary of Cumberland County
CUMBERLAND COUNTY COURTHOUSE
One Courthouse Square
Carlisle, PA 17013-3387
Re: Metro Bank f/k/a Commerce Bank/Harrisburg, N.A. v.
Steve J. Yanek, Jr. and Bette J. Yanek
Our File No. 431-2012(2)
Dear Prothonotary:
Enclosed herewith please find the following:
1. An original and one (1) copy of Defendants' Answer to Plaintiff's
Complaint in Confession of Judgment; and
2. An original and One (1) copy of Petition to Open Judgment.
Kindly file the originals and return a time-stamped copy of each to the
undersigned.
Should you have any questions with regard to this filing, please do not hesitate to
contact the undersigned.
Sincerely,
KUNDRAT & ASSOCIA
J
JSK:amh
Enclosures
cc: Scott A. Dietterick, Esquire, w/enc.
Steve Yanek, w/enc.
John S. Kundrat, Esquire
Kundrat & Associates
107 Boas Street
Harrisburg, PA 17102
Attorney ID No. 24958
Telephone: 717-232-3755
Fax: 717-232-9608
kundrat-associates@pa.net
.1
C..e .--
METRO BANK f/k/a Commerce Bank/ IN THE COURT OF COMMON PLEAS OF
Harrisburg, N.A. CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
STEVE J. YANEK, JR. and EDIE J.
YANEK
Defendants
NO. 2012-2397 Civil
CIVIL DIVISION
NOTICE TO PLEAD
TO: Metro Bank f/k/a Commerce Bank/Harrisburg, N.A.
You are hereby notified to file a written response to the enclosed New Matter within
twenty (20) days from service hereof or a judgment may be entered against you.
KUNDRAT & ASSOCIATES
By
for Defendants
John S. Kundrat, Esquire
Kundrat & Associates
107 Boas Street
Harrisburg, PA 17102
Attorney ID No. 24958
Telephone: 717-232-3755
Fax: 717-232-9608
kundrat-associatesa,ya.net
METRO BANK f/k/a Commerce Bank/
Harrisburg, N.A.
Plaintiff
V.
STEVE J. YANEK, JR. and EDIE J
YANEK
Defendants
a
rn
l ;-
= - - r-.
_
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2012-2397 Civil
CIVIL DIVISION
DEFENDANTS' ANSWER TO
PLAINTIFF'S COMPLAINT IN CONFESSION OF JUDGMENT
AND NOW comes Defendants, STEVE J. YANEK, JR. and EDIE J. YANEK, by and
through their counsel, John S. Kundrat, Esquire, and in support thereof, states as follows:
1. Denied. After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the truth of this averment and, therefore, it is denied
and strict proof at trial is demanded. Some of the documents attached to Plaintiffs Complaint
reflect Commerce Bank/Harrisburg, N.A. as the lender. For brevity, the Defendants respond as
though Metro Bank and Commerce Bank are one in the same. However, Plaintiff does not allege
or supply any exhibits reflecting assignment of the debt from Commerce Bank/Harrisburg, N.A.
to Metro Bank.
2. Admitted.
3. Admitted with clarification. The promissory note evidencing the $1.3 Million
loan attached as Exhibit "A" to the Complaint identifies the loan as Loan No. 3410850 with a
loan date of June 26, 2006. The loan number is repeated on each page of the promissory note.
4. Admitted with clarification. The promissory note evidencing the $416K loan
attached as Exhibit "B" to the Complaint identifies the loan as Loan No. 883837350 with a loan
date of November 1, 2010. The loan number is repeated on each page of the promissory note.
The loans are not collective in nature, but are separate and independent loans.
5. Admitted in part and denied in part. The Commercial Guaranty speaks for itself.
The balance of the averment is a conclusion of law to which no response is required. By way of
further answer, it is admitted that on June 26, 2006, Mr. Yanek executed and delivered to
Plaintiff a Commercial Guaranty as identified in Exhibit "C" in the Complaint. It is denied that
it was a guaranty on all past, present and future obligations of Yanek Custom Homes, Inc. By
way of further answer, the Commercial Guaranty specifically references Loan No. 3410850 on
each page except the first. It is submitted that this guaranty applies only to loan 3410850 in the
principal amount of $1.3 Million. The Note for Loan No. 3410850 and the guaranty are of even
date.
6. Admitted in part and denied in part. The Commercial Guaranty speaks for itself.
2
The balance of the averment is a conclusion of law to which no response is required. By way of
further answer, it is admitted that on June 26, 2006, Mrs. Yanek executed and delivered to
Plaintiff a Commercial Guaranty as identified in Exhibit "D" in the Complaint. It is denied that
it was a guaranty on all past, present and future obligations of Yanek Custom Homes, Inc. By
way of further answer, the Commercial Guaranty specifically references Loan No. 3410850 on
each page except the first. It is submitted that this guaranty applies only to loan 3410850 in the
principal amount of $1.3 Million. The Note for Loan No. 3410850 and the guaranty are of even
date.
COUNTI
7. No response is required.
8. Admitted in part and denied in part. It is admitted that the Guaranty identified as
Exhibit "C" of Mr. Yanek in the Complaint has not been released, transferred or assigned. It is
admitted that the Guaranty identified as Exhibit "D" of Mrs. Yanek in the Complaint has not
been released, transferred or assigned. By way of further answer, both the Guaranties of Mr. and
Mrs. Yanek apply only to Loan No. 3410850 in the principal amount of $1.3 Million with a date
of June 26, 2006.
9. Admitted with clarification. It is admitted that judgment has not been entered
against the Defendants on any guaranties in any jurisdiction. By way of further answer, see
Paragraph 8 above.
10. Denied. Paragraph 10 is a conclusion of law to which no response is required.
11. Admitted with clarification. It is admitted that judgment is not being entered by
3
confession against a natural person in connection with a consumer credit transaction. By way of
further answer, see Paragraph 8 above.
12. Denied. It is denied that the amount due under the Guaranty by Mr. and Mrs.
Yanek under the $1.3 Million Note is $185,784.05. To the contrary, it is believed that the
balance is substantially less than that amount. The balance on the Letter of Credit is inaccurate
as are the attorneys' fees. The balance of the calculation is suspected to be inaccurate also. By
way of further answer, Plaintiff has commenced a foreclosure action against real estate securing
this obligation and no credit has been given for the value of the asset securing the obligation.
WHEREFORE, Defendants request that Plaintiff's demand for judgment be denied.
COUNT II
13. No response is required.
14. Denied. It is denied that the Guaranties of Mr. and Mrs. Yanek referenced in
Exhibits "C" and "D" of Plaintiff's Complaint guaranty the $416K Note. To the contrary, both
Guaranties of Mr. and Mrs. Yanek reference Loan No. 3410850 which is the $1.3 Million loan of
loan date June 26, 2006 and evidenced by the Promissory Note attached as Exhibit "A" to
Plaintiff's Complaint. Therefore, there is no guaranty to release, transfer or assign on the $416K
Note.
15. Admitted with clarification. It is admitted that no judgment has been entered
against Defendants on the Guaranties. By way of further answer, the only Guaranties attached to
the Complaint are those of Mr. and Mrs. Yanek guaranteeing the $1.3 Million note referenced as
Loan No. 3410850.
16. Denied. Paragraph 16 is a conclusion of law to which no response is required.
4
17. Admitted in part and denied in part. It is admitted that the judgment is not being
entered by confession against a natural person in connection with a consumer credit transaction.
By way of further answer, judgment should not be entered because there is no guaranty of the
$416K Note.
16(sic) Denied. It is denied that the guaranties attached to the Complaint guaranty Loan
No. 883837350 in the principal amount of $416K. Additionally, should the Court determine that
the Guaranties do apply, it is submitted that the amount owed is grossly over-stated and that the
amount due, if any, is substantially less than $340,362.92. The attorney's fees are over-stated
and there is no detailed description of "expenses" and "other fees". The balance of the
calculation is also suspected to be inaccurate.
WHEREFORE, Defendants respectfully request that Plaintiff s demand for judgment in
the amount of $340,362.92 be denied.
NEW MATTER
18. Yanek Custom Homes, Inc. executed a Master Promissory Note for a loan from
Commerce Bank/Harrisburg, N.A. with a principal sum of $650K dated March 28, 2008, and
identified as Loan No. 88883549777. A copy of this note is attached as Exhibit "A".
19. Yanek Custom Homes, Inc. executed a Business Loan Agreement for the loan
referenced in Paragraph 18 above with a principal sum of $650K dated March 28, 2008, and
identified as Loan No. 88883549777. A copy of this loan agreement is attached as Exhibit "B".
20. As a requirement for the $650K loan identified in Paragraphs 18 and 19 above,
Mr. Yanek was required to execute a personal guaranty for that obligation, which he did. Said
Guaranty is attached as Exhibit "C" hereto. Said Guaranty specifically references Loan No.
5
88883549777 on pages 2 through 4. Mrs. Yanek did not execute a personal guaranty on this loan
to the best of her knowledge. Mr. and Mrs. Yanek have no documentation reflecting a balance
due on this Loan No. 88883549777.
21. The averments set forth herein reflect that the course of dealing among the parties
required that each personal guaranty reflect a specific loan number and was applicable only to
that loan.
22. Deeds in Lieu of Foreclosure have been offered to the Plaintiff on both properties
which secure both Loan Nos. 3410850 and 883837350. Plaintiff has rejected same.
23. Some of the loan documents reflect Commerce Bank/Harrisburg, N.A. as lender.
Plaintiff has set forth no allegation or evidence that Metro Bank has been assigned the claims.
24. Entry of Judgment against the Defendants has damaged their personal credit
rating and continues to do so.
WHEREFORE, Defendants respectfully request that Plaintiff s demand for judgment in
the amount of $526,110.97 be denied.
KUNDRAT & ASSOCIATES
By
Dated: May 17, 2012
Kundrat, Esquire
v for Defendants
6
MASTER PROMISSORY NOTE
Loan Amount:
Loan Number:
Dated:
$650,000.00
88883549777
March 28, 2008
To purchase improved lots and fund
verticle construction
FOR VALUE RECEIVED, the undersigned, Yanek Custom Homes, Inc., a
Pennsylvania Corporation, (herein called the "Borrower"), hereby promises to pay, On
Demand, to the order of COMMERCE BANK/HARRISBURG, N.A. (herein called the
"Bank") at any of its banking offices the sum of Six Hundred Fifty Thousand Dollars
($650,000.00) (the "Principal Amount"), or so much thereof as shall have been advanced
and be outstanding, plus interest on the unpaid Principal Amount at the "Term Rate".
The "Term Rate" shall be calculated on each advance at a rate equal to New York Prime
plus 1.00%.
Each advance shall be evidenced by an individual note. Repayment of each
advance shall be as follows: Interest only monthly, principal due upon settlement of each
unit financed. The term of each advance shall not exceed two (2) years. Advances shall
be permitted on any business day which the Bank is open for business. The monthly
payments due may be adjusted by the bank to avoid negative amortization.
Interest shall be calculated upon the outstanding principal balance for the actual
number of days elapsed at a daily rate based upon a 360-day year.
VARIABLE INTEREST RATE - The New York Prime Rate of Interest shall mean the
interest rate per annum announced from time to time in various business journals, such as
The Wall Street Journal, as the "Prime Rate of Interest". The New York Prime Rate of
Interest is an index, and loans of the Bank may be established at, above or below the
index. The New York Prime Rate of Interest is not necessarily the Bank's lowest rate of
interest
TERM OF LOAN- The term of this Loan shall be one (1) year. However, this loan shall
be renewable annually at the Bank's option. If the Loan is not renewed the outstanding
availability on the Master Note will be zeroed out, after ninety (90) days written notice to
Borrower, and the remaining principal and interest on the individual, signed Guidance
Line of Credit Advance Agreements shall be paid over the remainder of their scheduled
repayment periods.
LINE OF CREDIT - This Note is a revolving Master Promissory Note for the purchase
of improved residential building lots and the construction of single-family homes thereon.
Advances under this Note, as well as directions for payment from Borrower's accounts,
may be requested orally or in writing by Borrower or by an authorized person. Lender
may, but need not, require that all oral requests be confirmed in writing. Borrower agrees
to be liable for all sums either: (A) advanced in accordance with the instructions of an
EXH1BIT 11
authorized person or (B) credited to any of Borrower's account with Lender. The unpaid
principal balance owing on this Note at any time may be evidenced by endorsements on
this Note or on Lender's internal records, including any daily computer print-outs. Lender
will have no obligation to advance funds under this Note if: (A) Borrower or any
guarantor is in default under the terms of this Note; (B) Borrower or any guarantor
ceases doing business or is insolvent; (C) any guarantor seeks, claims or otherwise
attempts to limit , modify or revoke such guarantor's guarantee of the Note or any other
loan with Lender; (D) Borrower has applied funds provided pursuant to this Note for
purposes other than those authorized by Lender; or (E) Lender in good faith believes
itself insecure.
PREPAYMENT - Any and all sums due hereunder may be prepaid at any time with no
prepayment or premium.
PAYMENT OF COSTS- In addition to the principal and interest payments specified
above, the Borrower shall pay to the Bank or any other holder hereof, upon demand, all
reasonable costs and expenses (including attorneys' fees and legal expenses) which may
be incurred by Bank or such holder in the enforcement of the Loan.
LATE CHARGE- Bank shall have to right to collect a late charge of five percent (5%)
of the unpaid debt service after expiration of any grace period for payment provided in
the Loan Documents. The grace period for payments shall be ten (10) days.
LIABILITIES- For all purposes of this note, the term "Liabilities" means this note and
any renewals, extensions, and modifications thereof and all other existing and future
liabilities, whether absolute or contingent, of the Borrower to the Bank of any nature
whatsoever and out of whatever transactions arising.
SECURITY INTEREST- To secure payment of Liabilities the Bank shall have a lien
upon and security interest in any balance belonging to the Borrower or any deposit or
other account with the Bank and any other amounts which may be owing from the time to
time by the Bank to Borrower. It shall also have a lien upon and security interest in any
other property delivered, pledged, assigned, or hypothecated to the Bank by the Borrower
as security for the payment of the Liabilities or any portion thereof. The foregoing liens
and security interests shall be independent of any right of set-off which the Bank may
have.
CONFESSION OF JUDGMENT- BORROWER HEREBY IRREVOCABLY
AUTHORIZES THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT
OF RECORD IN PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST BORROWER UPON A DEFAULT UNDER
THIS PROMISSORY NOTE FOR ANY AND ALL AMOUNTS UNPAID ON THIS
PROMISSORY NOTE, INCLUDING INTEREST THEREON TO DATE OF
PAYMENT, TOGETHER. WITH REASONABLE FEES OF COUNSEL AND
COSTS OF SUIT, RELEASING ALL ERRORS AND WAIVING ALL RIGHTS
OF APPEAL. IF A COPY HEREOF, VERIFIED BY AFFIDAVIT, SHALL HAVE
BEEN FILED IN SUCH PROCEEDING, IT SOR NECESSARY TO
BORROWER
FILE THE ORIGINAL AS A WARRANT THE
HEREBY WAIVES THE RIGHT TOOSTAY OF EXECUTION W OR HEREAFTER N E FECT.
BENEFIT OF ALL EXEMPTION LAWS
NO SINGLE EXERCISE OF THIS WARRANT AND POWER TO CONFESS
JUDGMENT SHALL BE DEEMED TO EXHAUST THIS POWER, WHETHER
OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE
INVALID, VOIDABLE OR VOID, BUT THIS POWER SHALL CONTINUE CISED
M TIME TIME AS
UNDIMINISHED AND MAY BE EXUNTIL ALLRSOUMS DUE HEREUNDER
OFTEN AS BANK SHALL ELECT
SHALL HAVE BEEN PAID IN FULL.
CERTAIN RIGHTS OF BANK- shall havehet?ighal other rights t, which may be exercised at any
otherwise possessed by it, the Bank time without prior notice to or consent of the Borrower (but with prompt notice thereafter
given), to pledge, assign or transfer this note and any renewals, extensions and
modifications thereof, assigning therewith the Bank's rights in collateral or any portion
thereof given as security and any such pledge,
this note assignee or
gantd
ananysrenewalalextensions
of the Bank hereunder with respect
modifications thereof and any such collateral so assigned therewith.
COMMITMENT LETTER COMPLIANCE - This loan is contingent upon Borrower's
compliance with all of the terms and conditions in the commitment letter issued by
Lender to Borrower on or about March 25, 2008. Upon breach of any term of condition
therein Lender shall have the right to declare this loan in default and demand payment in
full of the principal balance remaining unpaid, together with all interest, which shall have
accrued thereon.
DEFAULTS- The Borrower shall be in default hereunder upon the occurrence of any
event of default set forth in the Business Loan Agreement which events are incorporated
hepewithed in
herein by reference, subject to such notice Agreement mpn?executed of even date be
the Loan Documents; said Business Loan g
INTEREST AFTER DEFAULT- Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law, increase the
interest rate on this Note and/or any subsequent Sub-Notes 4.00 percentage points. The
interest rate will not exceed the maximum rate permitted by law. If judgment is entered
in connection with this Note and/or any subsequent Sub-Notes interest will continue to
accrue on this Note and/or any subsequent advances after judgment at the existing
interest rate provided for in this Note and/or any subsequent Sub-Notes.
ACCELERATION- Upon the occurrence of any Event of Default, subject to such notice
and opportunity to cure as may be provided in the Loan Documents, subject to such
notice and opportunity to cure as may be provided in the Loan Documents, in addition to
any other rights or remedies available to it hereunder or under any other Loan Document
or at law or in equity, Bank may exercise any or all of the rights and remedies set forth in
the Business Loan Agreement signed as of even date herewith.
The Borrower waives all right to stay of execution and exemption of property in any
action to enforce any of the Liabilities.
MISCELANEOUS- If an advance is taken other than on the first day of the month
interest shall be calculated and shall accrue based on the number of days the advance is
outstanding prior to the first day of the next month and shall be added to the principal and
interest due on the first (Ist) of the next month in addition to the Borrower's regular
monthly payment. Any failure of the Bank to exercise any right hereunder shall not be
constructed as a waiver of the right to exercise the same or any other right at any other
time. The Borrower intends this to be a sealed instrument and to be legally bound
laws, of anynsylvania,
hereby. All issues arising hereunder sthereof hall belatmg to conflict the laws
without giving effect to the principles
JURISDICTION- In any legal action to enforce this Note, Borrower irrevocably agrees
that Bank may bring suit in the Court of Common Pleas of Cumberland County,
Pennsylvania or the United States District Court for the Middle District of Pennsylvania
and consents to the jurisdiction and venue in said court. Borrower HEREBY
KNOWINGLY WAIVES ITS RIGHT UNDEA JURY R THIS TRIAL
AGREEMENT OR ANY
BROUGHT BY IT OR AGAINST
OTHER LOAN DOCUMENT REFERRED TO HEREIN.
WITNESS: BORROWER:
Yanek Custom Homes, Inc.
(seal)
Steve J. President
Commerce Bank/Harrisburg, N.A.
/ (seal)
David M. Chajkowski, Commercial Loan Officer
t, JSINESS LOAN AGREEMENT
.::•::::• :. ; - ;:::•:::•:::•:::::::• ::::::::..:............ a particular loan or item.
References in the boxes above are for Lender's use only and do not limit the applicability of this document to any Any item above containing "
has been omitted due to text length limitations.
Borrower: Yanek Custom Homes, Inc. Lender: COMMERCE BANK/HARRISBURG N.A.
8 South Ridge Road COMMERCIAL BUSINESS DEPARTMENT
3801 PAXTON STREET
Boiling Springs, PA 17007 HARRISBURG, PA 17111
(717) 975-5630
ERCE BANKIHARRISBURG N .A. (""Le der°) on8thefollowing terms and conditions. Borrower has r ce vedepr or commercial 1 ans Inc. ("Borrower") and
THIS BUSINESS
COMM
Lender or has applied to Lender for a commercial loan or loans or other financial accommodations, including those which may be describe on s and
ees
extend any exhibit l rnschedule
n Bo owerr'sorethis Agreement. Borrowe present tons, warrant sr and ag eedments asrset forth in hisnAgreement en(B) r he grant ng,r renewingany
Lenderr er rs reYi9 upo
extending of any Loan by Lender at all times shall be subject to Lender's sole judgment and discretion; and (C) all such Loans shall be an
remain subject to the terms and conditions of this Agreement. full force and effect until such time as all of Borrower's
or
TERM. This Agreement shall be effective as of March 28, 2008, and shall continue in f
Loans in favor of Lender have been paid in full, including principal, interest, costs, expenses, attorneys' fees, and other fees an charges,
until such time as the parties may agree in writing to terminate this Agreement.
set forth in this Agreement and inethe under Related e
PRECEDENT CONDITIONS the f fulfillment to Lender's satisfaction of all of the initial Advance and each subsequent
Agreement shall be subject to
Agreement d
Documents.
Loan Documents. Borrower shall provide to Lender the following documents for the Loan: (1) the Note; (2) guaranties; (3) together
with all such Related Documents as Lender may require for the Loan; all in form and substance satisfactory to Lender and Lender's counsel. resolu authorizing Borrower's Authorization.
p ov ded
and thetRelatedtDisfactory to ocuments LIn addition, Bor ower1e hall havtions
execution and delivery of this Agreement, in form
sthe
other resolutions, authorizations, documents and instruments as Lender or its counsel, may require.
Payment of Fees and Expenses. Borrower shall have paid to Lender all fees, charges, and other expenses which are then due and payable
as specified in this Agreement or any Related Document.
Representations and Warranties. The representations and warranties set forth in this Agreement, in the Related Documents, and in any
document or certificate delivered to Lender under this Agreement are true and correct.
No Event of Default. There shall not exist at the time of any Advance a condition which would constitute an Event of Default under this
Agreement or under any Related Document. Lender
Agreement
of th
the d
as of
, as of the d R of loan proceeds, as of he date rr of ny renewal, extension or, cattion of any Loan, and atealll times any Indebtedness ez sts each
disbursement p
a. times Borrower is duly Organization. Bo is a for authorized to transact business in all other staters
under and by virtue ofethe lawsrof the Commonwealth which ePennsylvani all
ch state
u and
which in which Bs doinerdoing Sp cifically, Borroweris, and at all times eshall be, duly qual fied assa fore gnpcorporat onr mall states in which business, having obied all necessary Borrower 9 business.
the failure to so qualify would have a material adverse effect on its business or financial condition. Borrower has the full power an
esently
is p
in which
and
Un erss Bor owerahas des grnatedlotherwe isesin weritn g, thegprinc pal
aut wn its
orrow ma ntai s anooffice atp8 South Ridge Road Boil ingeSpr negs, PA 7007 it
m
name. Borrower ershalll do notify
Borrower's n state of records organization its records any change in Bogrrothe wer''s Collateral.
office is the
to office any a chane which in Borrower tthe ocaton of its books
Lender all
L prior
things necessary to preserve and to keep in full force and effect its existence, rights and privileges, and shall comply with all regulations,
rules, ordinances, statutes, orders and decrees of any governmental or quasi-governmental authority or court applicable to Borrower and
Borrower's business activities.
Assumed Business Names. Borrower has filed or recorded all documents or filings required by law relating to all assumed business names
used by Borrower. Excluding the name of Borrower, the following is a complete list of all assumed business names under which Borrower
does business: None.
Authorization. Borrower's execution, delivery, and performance of this Agreement and all the Related Documents have been duly
authorized by all necessary action by Borrower and do not conflict with, result in a violation of, or constitute a default under (1) any
provision of (a) Borrower's articles of incorporation or organization, or bylaws, or (b) any agreement or other instrument binding upon
Borrower or (2) any law, governmental regulation, court decree, or order applicable to Borrower or to Borrower's properties.
Financial Information. Each of Borrower's financial statements supplied to Lender truly and completely disclosed Borrower's financial
condition as of the date of the statement, and there has been no material adverse change in Borrower's financial condition subsequent to
the date of the most recent financial statement supplied to Lender. Borrower has no material contingent obligations except as disclosed in
such financial statements.
Legal Effect. This Agreement constitutes, and any instrument or agreement Borrower is required to give under this Agreement when
delivered will constitute legal, valid, and binding obligations of Borrower enforceable against Borrower in accordance with their respective
terms.
orrower's financial statements or in writing to Lender
Properties. Except as contemplated this Agreement ue and payable, Borrower owns and has good title to
and as accepted by Lender, and except for property to EXHIBIT ted any security documents or financing statements
of Secu all Borrower's properties free and gear of all _i name, and Borrower has not used or filed a financing
to such properties. All of Borrower' s prope rt
relating
statement under any other name for at least the last fi Borrower represents and warrants that: (1) During
Hazardous Substances. Except as disclosed to and ac n, manufacture, storage, treatment, disposal, release
the period of Borrower's ownership of the Collateral, t
BUSINESS LOAN AGREEMENT
Loan No: 88883549777 (Continued)
Page 2
or threatened release of any Hazardous Substance by any person on, under, about or from any of the Collateral. (2) Borrower has no
knowledge of, or reason to believe that there has been (a) any breach or violation of any Environmental Laws; (b) any use, generation,
manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the
Collateral by any prior owners or occupants of any of the Collateral; or (c) any actual or threatened litigation or claims of any kind by any
person relating to such matters. (3) Neither Borrower nor any tenant, contractor, agent or other authorized user of any of the Collateral
shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from any of the
Collateral; and any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations, and
ordinances, including without limitation all Environmental Laws. Borrower authorizes Lender and its agents to enter upon the Collateral to
make such inspections and tests as Lender may deem appropriate to determine compliance of the Collateral with this section of the
Agreement. Any inspections or tests made by Lender shall be at Borrower's expense and for Lender's purposes only and shall not be
construed to create any responsibility or liability on the part of Lender to Borrower or to any other person. The representations and
warranties contained herein are based on Borrower's due diligence in investigating the Collateral for hazardous waste and Hazardous
Substances. Borrower hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event
Borrower becomes liable for cleanup or other costs under any such laws, and (2) agrees to indemnify, defend, and hold harmless Lender
against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer
resulting from a breach of this section of the Agreement or as a consequence of any use, generation, manufacture, storage, disposal,
release or threatened release of a hazardous waste or substance on the Collateral. The provisions of this section of the Agreement,
including the obligation to indemnify and defend, shall survive the payment of the Indebtedness and the termination, expiration or
satisfaction of this Agreement and shall not be affected by Lender's acquisition of any interest in any of the Collateral, whether by
foreclosure or otherwise.
Litigation and Claims. No litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes)
against Borrower is pending or threatened, and no other event has occurred which may materially adversely affect Borrower's financial
condition or properties, other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by Lender in
writing.
Taxes. To the best of Borrower's knowledge, all of Borrower's tax returns and reports that are or were required to be filed, have been
filed, and all taxes, assessments and other governmental charges have been paid in full, except those presently being or to be contested by
Borrower in good faith in the ordinary course of business and for which adequate reserves have been provided.
Lien Priority. Unless otherwise previously disclosed to Lender in writing, Borrower has not entered into or granted any Security
Agreements, or permitted the filing or attachment of any Security Interests on or affecting any of the Collateral directly or indirectly
securing repayment of Borrower's Loan and Note, that would be prior or that may in any way be superior to Lender's Security Interests and
rights in and to such Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements (if any), and all Related Documents are binding upon the signers
thereof, as well as upon their successors, representatives and assigns, and are legally enforceable in accordance with their respective
terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long as this Agreement remains in effect, Borrower will:
Notices of Claims and Litigation. Promptly inform Lender in writing of (1) all material adverse changes in Borrower's financial condition,
and (2) all existing and all threatened litigation, claims, investigations, administrative proceedings or similar actions affecting Borrower or
any Guarantor which could materially affect the financial condition of Borrower or the financial condition of any Guarantor.
Financial Records. Maintain its books and records in accordance with GAAP, applied on a consistent basis, and permit Lender to examine
and audit Borrower's books and records at all reasonable times.
Financial Statements. Furnish Lender with the following:
Tax Returns. As soon as available, but in no event later than one-hundred-twenty (120) days after the applicable filing date for the tax
reporting period ended, Federal and other governmental tax returns, prepared by a professional accountant satisfactory to Lender.
All financial reports required to be provided under this Agreement shall be prepared in accordance with GAAP, applied on a consistent
basis, and certified by Borrower as being true and correct.
Additional Information. Furnish such additional information and statements, as Lender may request from time to time.
Insurance. Maintain fire and other risk insurance, public liability insurance, and such other insurance as Lender may require with respect to
Borrower's properties and operations, in form, amounts, coverages and with insurance companies acceptable to Lender. Borrower, upon
request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at least ten (10) days prior written notice to Lender. Each insurance
policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or
default of Borrower or any other person. In connection with all policies covering assets in which Lender holds or is offered a security
interest for the Loans, Borrower will provide Lender with such lender's loss payable or other endorsements as Lender may require.
Insurance Reports. Furnish to Lender, upon request of Lender, reports on each existing insurance policy showing such information as
Lender may reasonably request, including without limitation the following: (1) the name of the insurer; (2) the risks insured; (3) the
amount of the policy; (4) the properties insured; (5) the then current property values on the basis of which insurance has been obtained,
and the manner of determining those values; and (6) the expiration date of the policy. In addition, upon request of Lender (however not
more often than annually), Borrower will have an independent appraiser satisfactory to Lender determine, as applicable, the actual cash
value or replacement cost of any Collateral. The cost of such appraisal shall be paid by Borrower.
Guaranties. Prior to disbursement of any Loan proceeds, furnish executed guaranties of the Loans in favor of Lender, executed by the
guarantors named below, on Lender's forms, and in the amounts and under the conditions set forth in those guaranties.
Names of Guarantors
Amounts
Steve J. Yanek, Jr. Unlimited
Edie J. Yanek Unlimited
Other Agreements. Comply with all terms and conditions of all other agreements, whether now or hereafter existing, between Borrower
and any other party and notify Lender immediately in writing of any default in connection with any other such agreements.
Loan Proceeds. Use all Loan proceeds solely for Borrower's business operations, unless specifically consented to the contrary by Lender in
writing.
Taxes, Charges and Liens. Pay and disci when due all of its indebtedness and obligations, uding without limitation all assessments,
BUSINESS LOAN AGREEMENT
(Continued)
I moan No: 88883549777
Page 3
ure, imposed
every kind an
charge upon any of Borrowers
lawful clan s athat, if unpa id, become ° a lien properties,
taxes, governmental charges, levies and
to the date on which penalties
properties, income, profits. ( Provided however, of Borrower w shallill n contes edrm good faith by 1appropriateyp oceedings Sand assessment, (2) tax, such
the same be levy, lien or claim o long
shall have established on Borrower's books adequate reserves with respect to such contested assessment, tax, charge, levy, lien, or claim
in accordance with GAAP. set
in the Performance. Perform and comply, instruments and agreeme t withbetweenall Borrowers and, nLender. Borrowertshallt notify rLe der' immediately in
Documents, and in all other
writing of any default in connection with any agreement. with s
experie
and
y the
theconduct its
present Operations: Maintain executive personnel; provide wr'ittenenot ce to Lender obstanti f anyaclhange in xe ut vle1and management pence
executive and management personnel;
testings as
business affairs in a reasonable and prudent manner.
dies, ce defined
to any substance, or any waste or by Pr dies, sa a any mplings and substance defined
Studies. conduct and complete, at
Environmental by Lendernorlany governmental authority Borrower's
as applicable federal, state, or local law, rule, regulation, order or directive, at or affecting any
may be requested ed
toxic or a hazardous substance under property or any facility owned, leased or used by Borrower.
Compliance with Governmental Requirements. Comply with all laws, ordinances, and regulations, now or hereafter in effect, of all
governmental authorities applicable to the conduct of Borrower's properties, businesses and operations, and to the use or occupancy of the
Collateral, including without limitation, the Americans With Disabilities Act. Borrower may contest in good faith any such law, ordinance,
regulation and doing so compliance during any proceeding, including appropriate appeals, so long as Borrower has notified Lender in
interes
security or a surety bond,reasonablynsats factory to Lender, to lprotect Lender'se nterest. Lender may
lateral are riting prior to dto n ost oadand so equatelong
w
Loa
require Borrower p Coll
and toamaketeral
es andnmemoranda of
a da ancordd all
or Loans and Inspection. Permit employees and or agents gexam examine Lender any reasonable
rower's books,I accountsto inspect
wit
Borrower's other ther properties a record
hout Borrower's books, accounts,
and computer Isoftwa software programs for generation of such rlecord) in then possless on of a third'party
computer generated records Borrower, upon request of Lender, shall notify such party to permit Lender free access to such records at all reasonable times an to
provide Lender with copies of any records it may request, all at Borrower's expense. east
with
annually,
wer' Compliance Certificates. Unless
her officer or'person nacceptab eeto Lendeer,Lce tifying Ithat the represe tat ons an'dawarrrant eexecuted etyforth Borron this
chief financial officer, or of
Agreement are true and correct as of the date of the certificate and further certifying that, as of the date of the certificate, no Event o
erm t to
Law
Default exists under this Agreement. and al
Environmen
Environmental anintenttional or unintentional action or omission on Bor oI era's part orl on the part tof anysthi d part, onppr pferty
environmental
exist, as a result ult of of
an
or such local governmental
and gn orrower, any with theeconldt activity here daae may conditions of a permit issued byrthel aPp theriate env federal, environment, u state unless
ro
owned and/or occupied
notice '
activity is pursuant to copy of
nst umentality concern ng any intent o alnor
gencyef orrecei
summo authorities; shall furnish Lender promptly and in any event any days
lien, citation, directive, letter or other communication from any g
unintentional action or omission on Borrower's part in connection with any environmental activity whether or not there is damage tot the
environment and/or other natural resources. mortgag
deeds of
equest to
rust, security Additional Assurances. staemets, instruments, documents and of err agreements as Lender orets attorneystmay reasonablyagreements
assignments, fnancig
evidence and secure the Loans and to perfect all Security Interests. of or any
ne, or
ulation
law
change in
the int RECOVERY OF AD b La COSTS.
norr governmental authority (inc uding anygrequest or polidcyllnot having theeforceaolf law)
or administrative
application any thereof reof by y
shall impose, modify or make applicable any taxes (except federal, state or local income or franchise taxes imposed on Lender), reserve ations
Lender
he cost
increase
ich would (A)
ext requirements, capital adequacy A menteelates o (B)r o elduce the ahmounts payable to Lendertunder this Agreement or ethenRelat d'Doclument ,
credit facilities to which this is gee
amounts as will compensate Lendertthelrefor, facilities (5) daysh this
or (C) reduce the rate of Borrower to s pay capital Lender such additional of
Agreement after
such
ion
by an
relates, then agrees comp
payment,
additional amounts payablellby Be ac orro err,awhich explanation and calculat ions shalllbe conclusv e n dthe
or ch Lender's written demand f ail such
calculation in reasonable detail
absence of manifest error. affect
Lender' LENDER'S EXPENDITURES. fany action mor any Related Dolcdumentsail clud ng but notslimted toinBorrowerthe
provision
Borrower fails to comply with Y
discharge or pay when due any amounts Borrower is required to discharge or pay under this Agreement or any Related Documents, Lender on
Borrower's behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or
paying all taxes, liens, sec reservng any Collateral. All such expenditu es ncurred'oreplevied or aid by Lendee orr such purposes lw and l then 'bear linterest fat
exp
insuring, maintaining and p 9 Borrow
become the rate charged under the Note from the dte incurre or Indebtedness and, at Lender's option tlwill pa (Aby be Lender to payable honddemandPa B)e be added oethe (balance ofethesNote and be
apart of f the the Inn applicable insurance policy;
apportioned among and be payable with any installment payments to become due during either (1) the term of any app aya or (2) the remaining term of the Note; or {C) band treated balloon will be due Pn effect 'Bor owNot ee shallmaturnotity.
without the
NEGATIVE COVENANTS. Borrower covenants agrees
prior written consent of Lender:
2)dsell, t ansfer, mortgagecontemp,laassignted
capital indebte
Indebtedness and Liens. incur or assume indebtedness normal curse of business and
this Agreement, create,
pledge, tease, grant a security interest in, or encumber any of Borrower's assets (except as allowed as Permitted Liens), or (3) sell with
presen ed,
recourse any of Borrower's accounts, except to Lender. tially
those
different
Continuity of Operatic liquidate, me ge! business datenw th any othertentit , change is name, dissolve or t atnsfergorgsell
(2) cease operation q
. ,.s ,tio n.riinarv course of business, or (3) pay any dividends on Borrower's stock (other than dividends payable in its stock),
BUSINESS LOAN AGREEMENT
Loan No: 88883549777 (Continued) Page 4
provided, however that notwithstanding the foregoing, but only so long as no Event of Default has occurred and is continuing or would
result from the payment of dividends, if Borrower is a "Subchapter S Corporation" (as defined in the Internal Revenue Code of 1986, as
amended), Borrower may pay cash dividends on its stock to its shareholders from time to time in amounts necessary to enable the
shareholders to pay income taxes and make estimated income tax payments to satisfy their liabilities under federal and state law which
arise solely from their status as Shareholders of a Subchapter S Corporation because of their ownership of shares of Borrower's stock, or
purchase or retire any of Borrower's outstanding shares or alter or amend Borrower's capital structure.
Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance money or assets to any other person, enterprise or entity, (2)
purchase, create or acquire any interest in any other enterprise or entity, or (3) incur any obligation as surety or guarantor other than in
the ordinary course of business.
Agreements. Borrower will not enter into any agreement containing any provisions which would be violated or breached by the
performance of Borrower's obligations under this Agreement or in connection herewith.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to Borrower, whether under this Agreement or under any
other agreement, Lender shall have no obligation to make Loan Advances or to disburse Loan proceeds if: (A) Borrower or any Guarantor is in
default under the terms of this Agreement or any of the Related Documents or any other agreement that Borrower or any Guarantor has with
Lender; (B) Borrower or any Guarantor dies, becomes incompetent or becomes insolvent, files a petition in bankruptcy or similar proceedings,
or is adjudged a bankrupt; (C) there occurs a material adverse change in Borrower's financial condition, in the financial condition of any
Guarantor, or in the value of any Collateral securing any Loan; or (D) any Guarantor seeks, claims or otherwise attempts to limit, modify or
revoke such Guarantor's guaranty of the Loan or any other loan with Lender; or (E) Lender in good faith deems itself insecure, even though no
Event of Default shall have occurred.
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 debt against any and all
such accounts.
DEFAULT. Default will occur if payment in full is not made immediately when due.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where otherwise provided in this Agreement or the Related
Documents, all commitments and obligations of Lender under this Agreement or the Related Documents or any other agreement immediately will
terminate (including any obligation to make further Loan Advances or disbursements), and, at Lender's option, all Indebtedness immediately will
become due and payable, all without notice of any kind to Borrower, except that in the case of an Event of Default of the type described in the
"Insolvency" subsection above, such acceleration shall be automatic and not optional. In addition, Lender shall have all the rights and remedies
provided in the Related Documents or available at law, in equity, or otherwise. Except as may be prohibited by applicable law, all of Lender's
rights and remedies shall be cumulative and may be exercised singularly or concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Borrower or of any
Grantor shall not affect Lender's right to declare a default and to exercise its rights and remedies.
POST CLOSING COMPLIANCE. Borrower agrees to execute, re-execute, cause a Guarantor(s) or other third party(ies) involved in the loan
transaction to execute and/or re-execute and to deliver to Lender or its legal counsel, as may be deemed appropriate, any document or
instrument signed in connection with the Loan which was incorrectly drafted and/or signed, as well as any document or instrument which
should have been signed at or prior to the closing of the Loan, but which was not so signed and delivered. Borrower agrees to comply with any
written request by Lender within ten (10) days after receipt by Borrower of such request. Failure to Borrower to so comply shall, at the option
of Lender, upon notice to Borrower, constitute an event of default under the Loan.
COMMITMENT LETTER COMPLIANCE. This loan is contingent upon Borrower's compliance with all of the terms and conditions in the
commitment letter issued by Lender to Borrower on or about March 25, 2008. Upon breach of any term of condition therein Lender shall have
the right to declare this loan in default and demand payment in full of the principal balance remaining unpaid, together with all interest, which
shall have accrued thereon.
REQUIRED DEPOSIT ACCOUNT. A personal deposit relationship of the Guarantors to be established with Commerce Bank at or prior to closing.
DRAW PROVISIONS. 1) Title Insurance in the amount of the loan for each unit financed- 2) Advances limited to 75% of the appraised value of
the home being constructed. 3) Borrower will be limited to 2 spec homes and 1 home under contract financed under the subject facility at any
one time. 4)Prior to making advances for vertical construction the borrower shall provide: (a) Copy of building plans. (b) Specifications listing.
(c) Cost break-out. (d) Copy of building permit.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement:
Amendments. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties
as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement 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. Borrower agrees to pay upon demand all of Lender's costs and expenses, including Lender's reasonable
attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Agreement. Lender may hire or pay
someone else to help enforce this Agreement, and Borrower shall pay the costs and expenses of such enforcement. Costs and expenses
include Lender's reasonable attorneys' fees and legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Borrower also shall pay all court costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the
provisions of this Agreement.
Consent to Loan Participation. Borrower agrees and consents to Lender's sale or transfer, whether now or later, of one or more
participation interests in the Loan to one or more purchasers, whether related or unrelated to Lender. Lender may provide, without any
limitation whatsoever, to any one or more purchasers, or potential purchasers, any information or knowledge Lender may have about
Borrower or about any other matter relating to the Loan, and Borrower hereby waives any rights to privacy Borrower may have with respect
to such matters. Borrower additionally waives any and all notices of sale of participation interests, as well as all notices of any repurchase
of such participation interests. Borrower also agrees that the purchasers of any such participation interests will be considered as the
absolute owners of such interests in th ' oan and will have all the rights granted under , participation agreement or agreements
governing the sale of such participation it sts. Borrower further waives all rights of offset )unterclaim that it may have now or later
BUSINESS LOAN AGREEMENT
Loan No: 88883549777 (Continued)
Page 5
against Lender or against any purchaser of such a participation interest and unconditionally agrees that either Lender or such purchaser may
enforce Borrower's obligation under the Loan irrespective of the failure or insolvency of any holder of any interest in the Loan. Borrower
further agrees that the purchaser of any such participation interests may enforce its interests irrespective of any personal claims or
defenses that Borrower may have against Lender.
Governing Law. This Agreement 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 Agreement has been accepted by Lender
in the Commonwealth of Pennsylvania.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Agreement 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 Agreement 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 Agreement. No prior waiver by Lender, nor any course of
dealing between Lender and Borrower, or between Lender and any Grantor, shall constitute a waiver of any of Lender's rights or of any of
Borrower's or any Grantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement,
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.
Notices. Unless otherwise provided by applicable law, any notice required to be given under this Agreement shall be given in writing, and
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 Agreement. Any party may change its address for notices
under this Agreement 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, Borrower agrees to keep Lender informed at all times of Borrower's current address. Unless otherwise
provided by applicable law, if there is more than one Borrower, any notice given by Lender to any Borrower is deemed to be notice given to
all Borrowers.
Severability. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible,
the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so
modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability
of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement.
Subsidiaries and Affiliates of Borrower. To the extent the context of any provisions of this Agreement makes it appropriate, including
without limitation any representation, warranty or covenant, the word "Borrower" as used in this Agreement shall include all of Borrower's
subsidiaries and affiliates. Notwithstanding the foregoing however, under no circumstances shall this Agreement be construed to require
Lender to make any Loan or other financial accommodation to any of Borrower's subsidiaries or affiliates.
Successors and Assigns. All covenants and agreements by or on behalf of Borrower contained in this Agreement or any Related
Documents shall bind Borrower's successors and assigns and shall inure to the benefit of Lender and its successors and assigns- Borrower
shall not, however, have the right to assign Borrower's rights under this Agreement or any interest therein, without the prior written
consent of Lender.
Survival of Representations and Warranties. Borrower understands and agrees that in extending Loan Advances, Lender is relying on all
representations, warranties, and covenants made by Borrower in this Agreement or in any certificate or other instrument delivered by
Borrower to Lender under this Agreement or the Related Documents. Borrower further agrees that regardless of any investigation made by
Lender, all such representations, warranties and covenants will survive the extension of Loan Advances and delivery to Lender of the
Related Documents, shall be continuing in nature, shall be deemed made and redated by Borrower at the time each Loan Advance is made,
and shall remain in full force and effect until such time as Borrower's Indebtedness shall be paid in full, or until this Agreement shall be
terminated in the manner provided above, whichever is the last to occur.
Time is of the Essence. Time is of the essence in the performance of this Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. 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 Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code. Accounting words and terms not
otherwise defined in this Agreement shall have the meanings assigned to them in accordance with generally accepted accounting principles as in
effect on the date of this Agreement:
Advance. The word "Advance" means a disbursement of Loan funds made, or to be made, to Borrower or on Borrower's behalf on a line
of credit or multiple advance basis under the terms and conditions of this Agreement.
Agreement. The word "Agreement" means this Business Loan Agreement, as this Business Loan Agreement may be amended or modified
from time to time, together with all exhibits and schedules attached to this Business Loan Agreement from time to time.
Borrower. The word "Borrower" means Yanek Custom Homes, Inc. and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
Collateral. The word "Collateral" means all property and assets granted as collateral security for a Loan, whether real or personal property,
whether granted directly or indirectly, whether granted now or in the future, and whether granted in the form of a security interest,
mortgage, collateral mortgage, deed of trust, assignment, pledge, crop pledge, chattel mortgage, collateral chattel mortgage, chattel trust,
factor's lien, equipment trust, conditional sale, trust receipt, lien, charge, lien or title retention contract, lease or consignment intended as a
security device, or any other security or lien interest whatsoever, whether created by law, contract; or otherwise.
Default. The word "Default" means the Default set forth in this Agreement in the section titled "Default".
Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances
relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.,
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or
regulations adopted pursuant thereto.
Event of Default. The words "Event of DPf-ult" mean any of the events of default set forth in -`;s Agreement in the default section of this
Agreement.
Loan No: 88883549777
BUSINESS LOAN AGREEMENT
(Continued)
Page 6
GAA rd "GAAP" means generally accepted accounting principles. ny Collateral for the Loan,
. The
Grantor. The word "Grantor" means each and all of the pCUrity Inter, ntities granting a Security Interest in a
including without limitation all Borrowers granting of any or all of the Loan.
Guarantor. The word "Guarantor" means any guarantor, surety, or accommodation party
when
Hazardous Substances. The words Hazardous Substances" mean materials that, because of their quantity, concentration or physical,
"Hazardous
chemical or infectious characteristics, may cause or pose a present or potential hazard to human
"
improperly used, treated, stor stored, , disposed of, generated, manufactured, transported or of wma hahealth ndled or Tthe he words environment
materials or
Substances" are used in their very the broadest sense Environmental and Laws. include The term "without limitationHazardous any and all Substances" also hazardous or includes, toxic without substances, limitation, petroleum
waste as defined by or listed under t
and petroleum by-products or any fraction thereof and asbestos. ebtedness
Documents
enced
including all Indebtedness. The word "Indebtedness" means
and chostsdand expe ses'for whi hyBorower srresponsible u der this Agreement or under andy
interest together with all other her indebtedness
of the Related Documents.
Lender. The word "Lender" means COMMERCE BANK/HARRISBURG N.A., its successors and assigns. rom Lender to
ower
r no Loan The word "Loan" means i any and limitation those loa s andafinancial accommodationsrd scribedeheerein ow
descriibedfton loans and financial existing, and however evidenced, including
any exhibit or schedule attached to this Agreement from time to time. amount
28 Note. The word "Note" means the Note executed fymoYanek Custom Homes, dif cations of, rrefinancInc. ings of,econsol dations of, and sub000urio0 d ftor th anote or
of,
2008, together with all renewals of, , extensions
credit agreement. and
securi
securing Permitted Liens. The words "Permitted
or similar charges( lieithernsnot y t duet ornbe ng contested I nd gotodnfaith w(3) b liensrof m terialmen,
not
th
and
held by ations Borwhich rower are in the
m liens for taxes, assessments,
e ordinary mechanics, warehousemen, or oney liens or purrc'hasleemoney'securityenterests upon or in anylprorop rty acquired securing or obligations
yet delinquent; ( purchase Y
ordinary course of of business to secure indebtedness outstanding on the date of this Agreement or permitted to be incurred
security
s and
constitute Liens
nterests which, paragraph of this Agreement titled
roved "Indebtedness bhLende a ndwrit ng; and) (6) lienthose liens and (security interests wh chin ttheeagg t gis Agreement,
have been disclosed and approved by
an immaterial and insignificant monetary amount with respect to the net value of Borrower's assets. agre
ments, loan Related Documents. The words "Related Documents" mean
deeds loPtrust ssecuory deeds, col ateral morrgagesaand all other instruments,
agreements, guaranties, security
agreements and documents, whether now or hereafter existing, executed in connection with the Loan. promises, covenants,
Security Agreement. The words "Security Agreement" mean and include without limitation any agreements, ovepr proo representing, or
arrangements, understandings or other agreements, whether created by law, contract, or otherwise, evidencing, governing,
creating a Security Interest, resent and future,
Security Interest. The words "Security Interest" mean, without limitation, any and all types of collateral security, p assig
ent, whether in the form of a lien, charge, hencumranc, attelbrust,f ctorsagensequipmentstr st, condrto al sale,ntrust receipt, lien orpteteeretenton
contract, lease or consignment nt intended as a security device, or any other security or lien interest whatsoever whether created by awe
mortgage, collateral chattel intended
contract, or otherwise.
BORROWER ACKNOWLEDGES HAVING R DALL DTHE ATED MAROON O THIS BUSINESS LOAN AGREEMENT AND BORROWER AGREES TO
ITS TERMS. THIS BUSINESS LOAN AGREEMENT 28, 2008.
THIS AGREEMENT IS GIVEN UNDE ACSEAL CORDING OIS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE
EFFECT OF A SEALED INSTRUMENT
BORROWER:
YANEK CUSTOM HOMES, INC.
!Seal)
Y: fa a Jr., President of Yanek Custom
L/
teve
Home c
LENDER:
COMMERCE BANK/HARRISBURG N.A.
(Seal)
By: l
David M. Chajkowski, Commercial Loan Officer
L ERPRO L.d19.Vr9.79A0.00E Cop.Mw-,---W9oWli"ns, Inc. 1991. 2008. MR'a'n R-• - ---111-1 -1
Borrower: Yanek Custom Homes, Inc.
8 South Ridge Road
Boiling Springs, PA 17007
Lender:
COMMERCE BANK/HARRISBURG N.A.
COMMERCIAL BUSINESS DEPARTMENT
3801 PAXTON STREET
HARRISBURG, PA 17111
(717) 975-5630
Guarantor: Steve J. Yanek, Jr.
8 South Ridge Road
Boiling Springs, PA 17007
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionally
guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the performance and discharge of all
Borrower's obligations under the Note and the Related Documents. This is a guaranty of payment and performance and not of collection, so
Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against anyone else obligated to
pay the Indebtedness or against any collateral securing the Indebtedness, this Guaranty or any other guaranty of the Indebtedness. Guarantor
will make any payments to Lender or its order, on demand, in legal tender of the United States of America, in same-day funds, without set-off or
deduction or counterclaim, and will otherwise perform Borrower's obligations under the Note and Related Documents. Under this Guaranty,
Guarantor's liability is unlimited and Guarantor's obligations are continuing.
INDEBTEDNESS. The word "Indebtedness" as used in this Guaranty means all of the principal amount outstanding from time to time and at any
one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, reasonable
attorneys' fees, arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired,
that Borrower individually or collectively or interchangeably with others, owes or will owe Lender. "Indebtedness" includes, without limitation,
loans, advances, debts, overdraft indebtedness, credit card indebtedness, lease obligations, liabilities and obligations under any interest rate
protection agreements or foreign currency exchange agreements or commodity price protection agreements, other obligations, and liabilities of
Borrower, and any present or future judgments against Borrower, future advances, loans or transactions that renew, extend, modify, refinance,
consolidate or substitute these debts, liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by their
terms or acceleration; absolute or contingent; liquidated or unliquidated; determined or undetermined; direct or indirect; primary or secondary in
nature or arising from a guaranty or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or
non-negotiable instrument or writing; originated by Lender or another or others; barred or unenforceable against Borrower for any reason
whatsoever; for any transactions that may be voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated then
reduced or extinguished and then afterwards increased or reinstated.
If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties
shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties.
Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties.
CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND
PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR
HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE
INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY
REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO
BALANCE FROM TIME TO TIME.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any
notice to Guarantor or to Borrower, and will continue in full force until all the Indebtedness incurred or contracted before receipt by Lender of
any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have
been performed in full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of
revocation must be mailed to Lender, by certified mail, at Lender's address listed above or such other place as Lender may designate in writing.
Written revocation of this Guaranty will apply only to new Indebtedness created after actual receipt by Lender of Guarantor's written revocation.
For this purpose and without limitation, the term "new Indebtedness" does not include the Indebtedness which at the time of notice of
revocation is contingent, unliquidated, undetermined or not due and which later becomes absolute, liquidated, determined or due. For this
purpose and without limitation, "new Indebtedness" does not include all or part of the Indebtedness that is: incurred by Borrower prior to
revocation; incurred under a commitment that became binding before revocation; any renewals, extensions, substitutions, and modifications of
the Indebtedness. This Guaranty shall bind Guarantor's estate as to the Indebtedness created both before and after Guarantor's death or
incapacity, regardless of Lender's actual notice of Guarantor's death. Subject to the foregoing, Guarantor's executor or administrator or other
legal representative may terminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect.
Release of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this
Guaranty. A revocation Lender receives from any one or more Guarantors shall not affect the liability of any remaining Guarantors under this
Guaranty. It is anticipated that fluctuations may occur in the aggregate amount of the indebtedness covered by this Guaranty, and Guarantor
specifically acknowledges and agrees that reductions in the amount of the Indebtedness, even to zero dollars ($0.00), shall not constitute a
termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and assigns so long as any of the
Indebtedness remains unpaid and even though the Indebtedness may from time to time be zero dollars ($0.00)•
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice or
demand and without lessening Guarantor's liability under this Guaranty, from time to time: (A) prior to revocation as set forth above, to make
one or more additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend
nteres paymthent
thetimes
ratehoftime
anchange one or d decreases of more
e
additional credit to Borrower; (B) to alter, compromise, renew, extend, ate, or otherwise
or other terms of the Indebtedness or any part of the ases (C) to take and hold security for the payment e
Indebtedness; extensions may be repeated and may fo EXHIBIT idrm; e not to perfect, and release any such security, with
this Guaranty s the Indebtedness, and exchange, enfo relerce or deal with any one or more of Borrower's sureties,
or without the substitution to new collateral; (or in n any E) to determine how, when and what application of
endorsers, or other guarantors on any terms or any d direct the order or manner of sale thereof, including
payments and credits shall d made on the Indebtedness agreement or deed of trust, as Lender in its discretion
without limitation, any ell, tran sale permitted by the t Indebtedness; and (H) to assign or transfer this
may determine; (G) to sell, transfer, assign or grant pa
.;OMMERCIAL GUARANTY
COMMERCIAL GUARANTY
Loan No: 88883549777 (Continued)
Guaranty in whole or in part.
Page 2
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) no representations or
agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this Guaranty is
executed at Borrower's request and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into this Guaranty;
(D) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor
and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has not and will not, without
the prior written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of
Guarantor's assets, or any interest therein; (F) upon Lender's request, Guarantor will provide to Lender financial and credit information in form
acceptable to Lender, and all such financial information which currently has been, and all future financial information which will be provided to
Lender is and will be true and correct in all material respects and fairly present Guarantor's financial condition as of the dates the financial
information is provided; (G) no material adverse change has occurred in Guarantor's financial condition since the date of the most recent
financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's financial condition; (H)
no litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or
threatened; (1) Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and (J) Guarantor has established
adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition. Guarantor agrees to
keep adequately informed from such means of any facts, events, or circumstances which might in any way affect Guarantor's risks under this
Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by
Lender in the course of its relationship with Borrower.
GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than one-hundred-twenty (120) days after the end of each fiscal year,
Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor.
Tax Returns. As soon as available, but in no event later than one-hundred-twenty (120) days after the applicable filing date for the tax
reporting period ended, Federal and other governmental tax returns, prepared by Guarantor.
All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law; Guarantor waives any right to require Lender (A) to continue lending
money or to extend other credit to Borrower; (B) to make any presentment, protest, demand, or notice of any kind, including notice of any
nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower,
Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional
loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor;
(D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with
any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lender's power; or (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.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender
(whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts
Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender
may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. 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 ot` • actions as Lender deems necessary or appropriat '-) perfect, preserve and enforce its rights
finder this Guaranty.
COMMERCIAL GUARANTY Page 3
Loan No: 88883549777 (Continued)
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the alteration or amendment.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's costs and expenses, including Lender's reasonable
attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay
someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses
include Lender's reasonable attorneys' fees and legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the
provisions of this Guaranty.
Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the
laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions.
Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the
opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parol
evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses,
claims, damages, and costs (including Lender's attorneys' fees) suffered or incurred by Lender as a result of any breach by Guarantor of the
warranties, representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall
be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor"
respectively shall mean all and 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 lawl, 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 apurp w,of s, Guarantor
agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicable there is more
than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other
right. A waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver of Lender's right otherwise to demand
strict compliance with that provision or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between
Lender and Guarantor, shall constitute a waiver of any of Lender's rights or of any of Guarantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this Guaranty, the granting of such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in
the sole discretion of Lender.
Successors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal
representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically
stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise
defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word "Borrower" means Yanek Custom Homes, Inc. and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Steve J. Yanek, Jr., and in each
case, any signer's successors and assigns.
Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lender.
Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means COMMERCE BANK/HARRISBURG N.A., its successors and assigns.
Note. The word "Note" means and includes without limitation all of Borrower's promissory notes and/or credit agreements evidencing
Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations
of and substitutions for promissory notes or credit agreements.
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
COMMERCIAL GUARANTY
Loan No: 88883549777 (Continued) Page 4
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER
JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE
CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE
INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID
PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500)
ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR
A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY
TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL
CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY.
GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH
CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED MARCH 28, 2008.
THIS GUARANTY IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT
OF A SEALED INSTRUMENT ACCORDING TO LAW.
GUARANTOR:
X (Seal)
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
On this, the
proven) to be the person whose name
purposes therein contained.
I SS
_ day of 20 , before me
the undersigned Notary Public, personally appeared Steve J. Yanek, Jr., known to me (or satisfactorily
is subscribed to the within. instrument, and acknowledged that he or she executed the same for the
In witness whereof, I hereunto set my hand and official seal.
Notary Public in and for the State of
0 Le dC O. Vs. 5.39.00.005 Copy. Nr d Fin-W SoWUOns. 1- 1997. 3001. N giphb NsamveJ. - PA SACFIV W20.FC M2"31 M-18
VERIFICATION
I, STEVE J. YANEK, JR., do hereby verify that the facts stated in the foregoing instrument
are true and correct to the best of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn
falsification to authorities.
Stev Y n , Jr.
Date: ?- / 7 /Z
VERIFICATION
I, EDIE J. YANEK, do hereby verify that the facts stated in the foregoing instrument are true
and correct to the best of my knowledge, information and belief. l understand that false statements
herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to
authorities.
Edie J. Yane
Date: /rf '/Z
CERTIFICATE OF SERVICE
AND NOW, this l day of , 2012, I, Anna M. Hause,
'M M?
secretary for the law firm of Kundrat & Associates, Counsel for Defendant, hereby certify that a
true and correct copy of the foregoing Defendants' Answer to Plaintiff's Complaint in
Confession of Judgment was served via first class mail, postage prepaid addressed to the parties
or counsel of record as follows:
Scott A. Dietterick, Esquire
JAMES, SMITH, DIETTERICK & CONNELLY, LLP
P.O. BOX 650
Hershey, PA 17033
KUNDRAT & ASSOCIATES
Anna M. Hause
107 Boas Streets
Harrisburg, PA 17102
717-232-3755
METRO BANK f/k/a COMMERCE BANK/
HARRISBURG, N.A.,
Plaintiff
V.
STEVE J. YANEK, JR. and EDIE J.
YANEK,
Defendants
IN THE COURT OF COMMON PLEAS OF
THE NINTH JUDICIAL DISTRICT
NO: 2012-2397 CIVIL TERM
AND MM, this 23rd day of May, 2012, upon consideration of Defendants'
"Petition to Open Judgment," which requests the Court to strike the underlying
judgment, or in the alternative, open said judgment, a RULE is issued upon Plaintiff to
show cause why the relief requested in Defendants' "Petition to Open Judgment" should
not be granted.
RULE RETURNABLE within 20 days from the date of this order.
By the
Thomas A. Lacey C.P.J.
? Scott A. Dietterick, Esq.
James Smith Diettrick & Connelly, LLP
P.O. Box 650 -
Hershey, PA 17033 ?. .
For Plaintiff
w
?.
'John S. Kundrat, Esq. a° z a
Kundrat & Associates
107 Boas Street
Harrisburg, PA 17102 -? "' `.
For Defendants
tpp i PS Ma.1ed
PW
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A.,
Plaintiff, NO.: 2012-2397
VS.
STEVE J. YANEK, JR. and
EDIE J. YANEK,
Defendants.
H
=. 14Q
Co L l?"S YLVAIA? '
ANSWER TO DEFENDANTS' PETITION TO OPEN JUDGMENT
And now comes Metro Bank f/k/a Commerce Bank/Harrisburg, N.A., by
its attorneys, James, Smith, Dietterick & Connelly LLP, and files this Answer to
Defendants Steve J. Yanek, Jr. and Edie J. Yanek (collectively "Defendants"),
Petition to Open Judgment as follows:
1. Admitted.
2. Admitted.
3. Plaintiff's Confession of Judgment is of record and speaks for
itself.
4. Plaintiffs Confession of Judgment is of record and speaks for
itself.
5. Denied. The Confession of Judgment is accurately stated and
calculated in accordance with the loan documents.
6. Plaintiffs Confession of Judgment is of record and speaks for
itself.
7. Denied. The Confession of Judgment is accurately stated and
calculated in accordance with the loan documents.
8. Plaintiffs Confession of Judgment is of record and speaks for
itself.
9. Plaintiff s Confession of Judgment is of record and speaks for
itself.
10. Admitted that mortgage foreclosure actions are pending on real
estate securing the loans under which the Confession is filed. It is denied that a
pending foreclosure action has any effect on the Defendants obligations under the
loan documents and is any defense to the above-captioned confession of judgment
action.
11. Defendants' Exhibit "B" attached to its Petition to Open is a
document in writing which speaks for itself.
12. Defendants' Exhibit "F" attached to its Petition to Open is a
document in writing which speaks for itself.
13. Defendants' Exhibit "G" attached to its Petition to Open is a
document in writing which speaks for itself.
14. Denied. The loan documents, including the guaranties, are
documents in writing which speak for itself.
15. Denied that a Deed In Lieu of Foreclosure must be accepted by
Plaintiff and in any way excuses Defendants obligations under the loan documents
including the guaranties. It is further denied that offering a deed in lieu of
foreclosure is a basis to open a confession of judgment.
16. Denied, the name change is public record and Plaintiff does not
need to provide evidence of same with every action it files.
17. Denied to the extent that it constitutes a basis to open the confessed
judgment. By way of further answer, a judgment taken by confession will be
opened in only a limited number of circumstances, and only when the person
seeking to have it opened acts promptly, alleges a meritorious defense and
presents sufficient evidence of that defense to require submission of the issues to
the jury. First Seneca Bank v. Laurel Mt. Development Corporation, 506 Pa. 439,
443, 485 A.2d 1086, 1088 (1984). Defendants have done none of these and thus
their Petition must be denied.
WHEREFORE, Plaintiff respectfully request Defendants' Petition to Open
Confessed Judgment be denied, along with such other relief as this Court deems
just.
Respectfi
JAMES, SMITH,
B
PA I.D. # 55650
Kimberly A. Bonner, 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
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A.,
Plaintiff, NO.: 2012-2397
vs.
STEVE J. YANEK, JR. and
EDIE J. YANEK,
Defendants.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Answer to
Defendants' Petition to Open Judgment was served on the following this 8`, day of June,
2012, via First Class Mail, postage prepaid:
John S. Kundrat, Esquire
107 Boas Street
Harrisburg, PA 17102
JAMES, SMITH, QIETTEP4QK,& OPNNEIJ Y LLP
BY:
Scott A-Bye#tdrick, Esquire
PA I.D. # 55650
Kimberly A. Bonner, Esquire
PA I.D #89705
Attorneys for Plaintiff
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
11
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next
Argument Court.)
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- -- - ---- - ---- - -- - ---------- - ---------- - ------------------ - ------------ - ------------
CAPTION OF CASE
(entire caption must be stated in full)
Metro Bank f/k/a Commerce Bank/Harrisburg, N.A.
vs.
Steve J. Yanek, Jr. and Edie J. Yanek
2012-2397
No.
Term
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to
complaint, etc.):
Defendants' Petition to Open Judgment
2. Identify all counsel who will argue cases:
i==
(a) for plaintiffs: -... ,
Kimberly A. Bonner, Esquire
--
(Name and Address) =e•, Cam) .;
P.O. Box 650, Hershey, PA 17033
0
(b) for defendants: - ,
John S. Kundrat, Esquire
(Name and Address)
107 Boas Street, Harrisburg, PA 17102
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
September 7, 2012
Kimberly A. er, Esquire
Signature
? 0\
?
---1
--
-
Print your na -1
Plaintiff
August 9, 2012 Attorney for
Date:
INSTRUCTIONS:
1. Original and two copies of all briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 14 days prior to argument.
3. The responding party shall file their brief 7 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
'
X9.
1
3/
P-#-979
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
METRO BANK f/k/a Commerce Bank/ CIVIL DIVISION
Harrisburg, N.A.,
Plaintiff, NO.: 2012-2397
VS. :
STEVE J. YANEK, JR. and
EDIE J. YANEK,
Defendants.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe
Listing Case for Argument was served on the following this 9th day of August, 2012, via First
Class U. S. Mail, Postage Pre-paid:
John S. Kundrat, Esquire
Kundrat & Associates
107 Boas Street
Harrisburg, PA 17102
JAMES, SM NH, I ERICK & CONNELLY LLP
Date: ?-T ION BY
Kimberly A. Bonner, Esquire
PA I.D. 89705
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
John S. Kundrat, Esquire
Kundrat ?i Associates
107 Boa Street
Harrisburg, PA 17102
AttorneylID No. 24958
Telephone: 717-232-3755
Fax: 711-232-9608
kundrat-associatesnva.net
METRO (BANK f/k/a Commerce Bank/
Harrisburg, N.A.
Plaintiff
V.
STEVE J,. YANEK, JR. and EDIE J.
YANEK
Defendants
12 ,1112 AUG 23 PIM, 12: 2
CUMBERLAND COUNTY
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2012-2397 Civil
CIVIL DIVISION
MOTION TO REMOVE CASE FROM ARGUMENT LIST
AND NOW, comes Defendant, Yanek Custom Homes, Inc., by its attorneys, KUNDRAT
& ASSOCIATES, and states the following:
1. This matter was listed by Plaintiff's counsel without discussion with Defendant's
counsel.
2. Notice of listing for argument was received by Defendant's counsel on August 22,
2012.
3.' A Motion for Discovery in this matter is currently pending before the Court.
4., Defendant's counsel has a hearing on September 7, 2012, at 10:00 A.M. which
was scheduled some time ago.
5. Defendant's counsel is a sole practitioner.
6. Pursuant to local rules, Defendant's Brief is required to be filed by August 31,
2012.
7. Defendant's counsel's secretary is on vacation August 29, 30 and 31, 2012, and
Labor Day is being observed on September 3, 2012.
8 On August 29, 2012, Defendant's counsel is required to be at John Hopkins
Hospital 'in Baltimore, Maryland, with his spouse.
9 Defendant's counsel, on Sunday, August 26, 2012, is required to take his daughter
to New )(ork to college.
WHEREFORE, based upon the above, Defendant's counsel respectfully requests that this
matter be removed from the argument list for September 7, 2012.
Respectfully submitted,
KUNDRAT/& ASSOCIATES
Attoutirev for Defendant
Dated: August 23, 2012
CERTIFICATE OF SERVICE
rd
AND NOW, this 413 day of 14? Mf. , 2012, I, Anna M. Hause,
secretaryifor the law firm of Kundrat & Associates, Counsel for Defendant, hereby certify that a
true and correct copy of the foregoing Defendant's Motion to Remove Case from Argument List
was served via first class mail, postage prepaid addressed to the parties or counsel of record as
follows:
Scott A. Dietterick, Esquire
JAMES, SMITH, DIETTERICK & CONNELLY, LLP
P.O. Box 650
Hershey, PA 17033
KUNDRAT & ASSOCIATES
Anna M. Hause
107 Boas Streets
Harrisburg, PA 17102
717-232-3755
John S. Kundrat, Esquire
Kundrat & Associates
107 Boas Street
Harrisburg, PA 17102
Attorney;ID No. 24958
Telephorje: 717-232-3755
Fax: 717-232-9608
kundrat- sociates(a.net
METRO BANK Vk/a
Commer?-e Bank/Harrisburg, N.A
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO?
v.
YANEK',CUSTOM HOMES, INC.
Defendant
CIVIL ACTION - LAW
METRO; BANK f/k/a
Commerce Bank/Harrisburg, N.A.
Plaintiff
v.
YANEKi CUSTOM HOMES, INC
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2012-1642 Civil
CIVIL ACTION -LAW
METRO, BANK f/k/a Commerce Bank/ IN THE COURT OF COMMON PLEAS OF
Harrisburg, N.A. CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 2012-2397 Civil
V. :
STEVE J. YANEK, JR. and EDIE J.
YANEK,
Defendants CIVIL DIVISION
MOTION TO CONSOLIDATE
FOR PURPOSES OF DISCOVERY AND FOR TRIAL
AND NOW, come Defendants, Yanek Custom Homes, Inc., and Steve J. Yanek, Jr., and
Edie J. Yanek, by their attorneys, KUNDRAT & ASSOCIATES, and states the following:
Metro Bank f/k/a Commerce Bank/Harrisburg, NA v. Yanek Custom Homes, Inc.
Docket No. 2012-1641 Civil
1, A Complaint was filed in this matter on March 14, 2012.
2 An Answer to Complaint was filed on April 19, 2012.
3. A Motion for Summary Judgment was filed on or about July 6, 2012.
4, A Response to Motion for Summary Judgment was filed on August 6, 2012.
5; Without contact with Defendant's counsel, Plaintiff filed a Praecipe to List Case
for Argument.
6; Discovery is necessary for Defendant to be properly represented.
7. A Motion for Discovery was filed on or about August 23, 2012.
Metro Bank f/k/a Commerce Bank/Harrisburg, NA v. Yanek Custom Homes, Inc.
Docket No. 2012-1642 Civil
8. A Complaint was filed in this matter on March 14, 2012.
9. An Answer to Complaint was filed on April 19, 2012.
10. A Motion for Summary Judgment was filed on or about July 6, 2012.
11. A Response to Motion for Summary Judgment was filed on August 6, 2012.
12. Without contact with Defendant's counsel, Plaintiff filed a Praecipe to List Case
for Argument.
13. Discovery is necessary for Defendant to be properly represented.
14. A Motion for Discovery was filed on or about August 23, 2012.
Metro Bank f/k/a Commerce Bank/Harrisburg v.
Steve J. Yanek, Jr. and Edie J. Yanek
Docket No. 2012-2397 Civil
15. A Complaint in Confession of Judgment was filed in this matter on April 19,
2012.
16. An Answer to the Complaint in Confession of Judgment with New Matter was
filed on May 18, 2012.
17. A Petition to Open Judgment was filed on May 18, 2012.
18. A Rule to Show Cause was issued on May 23, 2012.
19. An Answer to Defendant's Petition to Open Judgment was filed on or about June
8, 2012.
20. Discovery is necessary for Defendant to be properly represented.
2i1. A Motion for Discovery was filed on or about August 23, 2012.
292. Pursuant to Pa. R.C.P. 213(a):
"In actions pending in a county which involve a common question
of law or fact or which arise from the same transaction or
occurrence, the court ... may order a joint hearing or trial of any
matter in issue in the actions, may order the actions consolidated,
and may make orders that avoid unnecessary cost or delay."
213. Both foreclosure actions referenced above involve common questions of law and
fact which arise in similar transactions.
214. The Complaint in Confession of Judgment relates to the foreclosure actions and
involves the same issues as the foreclosure actions.
WHEREFORE, Defendants respectfully request that the Court consolidate discovery on
all three (3) actions and permit consolidation on the two (2) foreclosure actions for trial.
KUNDRAT & ASSOCIATES
By
John . Kundrat
Attorney for All Defendants
Dated: ;August 22, 2012
CERTIFICATE OF SERVICE
AND NOW, this ? day of "? US 4- , 2012, I, Anna M. Hause,
secretary for the law firm of Kundrat & Associates, Counsel for Defendants, hereby certify that a
true and ? orrect copy of the foregoing Motion to Consolidate was served via first class mail,
postage prepaid addressed to the parties or counsel of record as follows:
Scott A. Dietterick, Esquire
JAMES, SMITH, DIETTERICK & CONNELLY, LLP
P.O. Box 650
Hershey, PA 17033
KUNDRAT & ASSOCIATES
L?rvuu M?
Anna M. Hause
107 Boas Streets
Harrisburg, PA 17102
717-232-3755
;;?EO-%fEiCL
o 11117 PROTHONOTAR
2012AEG23 AM 10:29
John S. Kundrat, Esquire
Kundrat Associates
107 Boas Street
Harrisbutg, PA 17102
Attorney' ID No. 24958
Telephone: 717-232-3755
Fax: 717-232-9608
kundrat-4ssociates(,pa.net
METROI BANK f/k/a Commerce Bank/
Harrisburg, N.A.
CUMBERLAND COUNT
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
STEVE J. YANEK, JR. and EDIE J.
YANEK
Defendants
: NO. 2012-2397 Civil
CIVIL DIVISION
MOTION FOR DISCOVERY
AND NOW, come Defendants, Steve J. Yanek, Jr. and Edie J. Yanek, by their attorneys,
KUNDRjAT & ASSOCIATES, and states the following:
1 A Complaint in Confession of Judgment was filed in this matter on April 19,
2012.
2. An Answer to the Complaint in Confession of Judgment with New Matter was
filed on May 18, 2012.
3. A Petition to Open Judgment was filed on May 18, 2012.
4. A Rule to Show Cause was issued on May 23, 2012.
S. An Answer to Defendant's Petition to Open Judgment was filed on or about June
8, 2012.
6. Without contact with Defendant's counsel, Plaintiff filed a Praecipe to List Case
for Argument.
7. Discovery by deposition and Request for Production of Documents is necessary
for Defendant to be properly represented.
WHEREFORE, it is requested that Defendant be permitted to conduct discovery which
includes,; but it not limited to, a deposition of a representative of Plaintiff as well as a Request for
Production of Documents.
KUNDRAT & ASSOCIATES
By
John S undrat, Esquire
Attorney for Defendant
Dated: August 22, 2012
CERTIFICATE OF SERVICE
,- tid
AND NOW, this day of 4V ? j t , 2012, I, Anna M. Hause,
secretary! for the law firm of Kundrat & Associates, Counsel for Defendant, hereby certify that a
true and q orrect copy of the foregoing Motion for Discovery was served via first class mail,
postage Orepaid addressed to the parties or counsel of record as follows:
Scott A. Dietterick, Esquire
JAMES, SMITH, DIETTERICK & CONNELLY, LLP
P.O. Box 650
Hershey, PA 17033
KUNDRAT & ASSOCIATES
Anna M. Hause
107 Boas Streets
Harrisburg, PA 17102
717-232-3755
METRO BANK f/k/a Commerce Bank/
Harrisburg, N.A.
Plaintiff
v.
STEVE J. YANEK, JR. and EDIE J.
YANEK
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2012-2397 Civil
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CIVIL DIVISION
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ORDER TO REMOVE CASE FROM ARGUMENT LIST
AND NOW, this Zr• day of r' , 2012, upon consideration of
Defendant's Motion to Remove Case from Argument List, it is hereby ORDERED and
DECREED that the above-captioned matter shall be removed from the argument list for
September 7, 2012.
l
Distribution•
Plaintiff s Attorney:
/ John S. Kundrat, Esq.
107 Boas Street
Harrisburg, PA 17102
Telephone: (717) 232-3755
Email Address: Kundrat-associatesna,pa.net
~c
Defendant's Attorney:
~/ Scott A. Dietterick, Esquire
P.O. Box 650
Hershey, PA 17033
Telephone: (717) 533-3280
Email Address: