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HomeMy WebLinkAbout12-7123~~- i r'~~~~~a°'~'~~ ~31 ~~ l~~~F~IiSYL~I~'-,~dl,~ METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkell ~mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce IN THE COURT OF COMMON PLEAS OF Bank/Harrisburg, N.A. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. 1 I DOCKET NO. ~ ~• ~ ~~3 lU DAVID J. BRINKLEY, Defendant . CONFESSION OF JUDGMENT Pursuant to the authority contained in the Confession of Judgment clause in the Guaranty, a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of Plaintiff and against Defendant as follows: ~~ a A 33~~ s ~~ oo ~c~ No~c~ MG:clt'~ Principal: $8,193.67 Interest through 10/9/12: $43.07 Late Charges through 10/9/12: $138.96 Attorneys' Commission (10%): $837.57* TOTAL $9,213.27 * Only reasonable attorneys fees will be collected by the attorney. Interest at the per diem rate of $0.95 attorney fees and costs of this action continue to accrue. Respectfully submitted, .~ Heather Z. Kelly, quire I.D. No. 86291 Appearing herein for Defendant Date: November 19, 2012 r fi ,: ~...;_, METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellyna,mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff v. DAVID J. BRINKLEY, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA j;J 11 DOCKET NO. ~a - 1 ~ ~ 3 COMPLAINT IN CONFESSION OF JUDGMENT NOW COMES, Metro Bank, f/k/a Commerce Bank/Harrisburg, N.A. ("Plaintiff'), by its attorneys files the following Complaint in Confession of Judgment: 1. Plaintiff is a Pennsylvania state chartered bank with an address at 3801 Paxton Street, Harrisburg, PA 17111. 2. Defendant is David J. Brinkley, an adult individual with an address of 1903 Princeton Avenue, Camp Hill, Cumberland County, Pennsylvania, 17011. 600007v1 3. On Mazch 10, 2006, non-party Tammy S. Brinkley, d/b/a Stolen Moments Photography ("Borrower") executed a Promissory Note for a revolving line of credit, in the original principal amount of Ten Thousand Dollazs ($10,000.00) in favor of Plaintiff, which was modified on June 23, 2011 by a Change in Terms Agreement. True and correct copies of the Promissory Note and Change in Terms Agreement aze attached hereto as Exhibit "A" and referred to collectively as the "Note." 4. Pursuant to the terms of a Commercial Guaranty executed on March 10, 2006, Defendant guazanteed Borrower's obligations under the Note. A true and correct copy of the Commercial Guazanty is attached hereto as Exhibit "B" and referred to as the "Guaranty." 5. Borrower has defaulted under the Note by failing to make payments when due. 6. By correspondence dated October 5, 2012 and October 8, 2012, Plaintiff demanded payment in full from Borrower and Defendant. True and correct copies of the October 5, 2012 and October 8, 2012 correspondence aze attached hereto as Exhibit "C." 7. Defendant failed to repay the indebtedness as required by the Guazanty in response to the October 5, 2012 and October 8, 2012 demands. 8. The Note and Guazanty were executed in connection with a commercial transaction. 9. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 10. The Note and Guaranty have not been assigned. 11. Judgment has not been entered on the Guaranty in any jurisdiction. 12. The warrant of attorney appearing in the Guaranty are less than twenty (20) years old. 13. Plaintiff has taken all actions or complied with all conditions precedent in the filing of this action. 14. The entire remaining indebtedness evidenced by the Note and Guaranty, as of October 9, 2012 is $9,213.27 and is computed as follows: Principal: $8,193.67 Interest through 10/9/12: $43.07 Late Charges through 10/9/12: $138.96 Attornevs' Co~unission (10%~ $837 57* TOTAL $9,213.27 * Only reasonable attorneys fees will be collected by the attorney. Interest at the per diem rate of $0.95, attorney fees and costs of this action continue to accrue. WHEREFORE, on the basis of the confession of judgment provision contained in the Guaranty, Plaintiff demands judgment in its favor and against Defendant in the amount of $9,213.27, plus all interest which continues to accrue at the rate of $0.95 per day from October 9, 2012 forward, as authorized by Pennsylvania law, together with costs of suit. Respectfully submitted, METTE, EVANS & WOODSIDE By: Heather Z. Kelly, squire I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaint Date: November 19, 2012 VERIFICATION I, John Robertson, Vice-President, Metro Bank, have read the foregoing Complaint in Confession of Judgment and verify that the facts set forth therein aze true and correct according to the best of my knowledge, and that I am authorized to execute this Verification on behalf of the bank. I understand that any false statement made herein is subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. hn obertson, Vice-President o Bank f/k/a Commerce Bank/Harrisburg, N.A. Dated: ~+~ /~~~, ~~ ' ~ PROMISSORY NOTE ~ d _~..~.~ .. .. ~ .._ . .._.. References in the shaded arse ors for Lender's use only and do not Iknit the applicabUity of tNs docurnant to any particular loan or item. Any item above containing ' • • • • has bean omitted due to text 1 h 6mttstlortie. Borrower: Tammy S. &lrrkty ISSN: } DBA: Lender: COMMERCE BJWKAiARRIgiUR6 N.A, Stolen Non+ar>ts Photography COMMERCWL PJU$I#1685 DEPARTMENT 3121 Dbkfnsan Awnue 100 SENATE AVENUE Camp FNA, PA 17011 CAMP HILL . PA 17011 1717) 975-bB30 Principal Amattrrt: $70,000.00 initial Rate: 9.50096 Date of Note: March 10, 2006 Maturity Data: March 10, 2011 PROMISE TO PAY. Tammy S. Brinkley t"Borrower"} prombss to pay to COMMFJiCE BANKMARRt88URG N.A. ("Lender'), or order, in lawful money of the Unlbd States of America, tits prinetpai amount of Tin Thowand A 001100 Do6rs (ti10,000A0} ar so much as may be outatandirq. together with Ytitsrsst an lltis urtipaid cutsbndhtig principal baianp of each advance. IrKersst shsR ba cakubbd from tlu data of each advance until repayment of sash advance. PAYMENT. Borrowa- wi pay this loan in fuM Irrensdiaisly upon Lender's demand, ff no demand b roads, Borrower wgl pay this ban in one psymsrtit of a! outtRar-dirtig pnc~lpai plw a1 accrued unpaid irrtirest on March 10. 2011. in addition, Borrower wtM Pay reguhr monthly payments of a6 accrued rmpatd btitsrsat due as of ssch piaymsnt date. beginning ApW 10. 2006. whir aN aubsequsrtit irresrast paymsrw to bs due on ribs aantis day of each mortitlr sihr that. Unless odisrwlas agreed ar rsquirad by appEeabis 4w, payntienb w1U be appiied 11rst to any aecnrsd unpdd irtitsrrsaC titian m pHncipal; tirsn m any artipeld eoBsctlon costs; and then to any lots charges. Ths annual ititsrsst tab for thin Mots b computed on s 3A5/360 bsatib; that is, by applyY~g the ratio of titre annwl htibrast rats war a yasr of 380 days. muMpMd by the outsgrrdtng prlrtidpN balance, rnrdtipNed by the sepal number of days the principal balance b outstanding. Borrower wA pay Lender at Lender's address shown above or at such atttar place as Lender mPy desigmtsf in wrltbtig. VARIABLE INTEREST RATE. The inrterest rate on this Note is subject to change from time to tuna based on changes in an independent index which is the Prime Rate as pubUshsd in the Money Rata Section of the WaU Street Journal. if a range of rates b pubRsh~, the highest will be timed. (the 'Index"1. The index is not necessarily the lowest rate charged by Lander on its loans. If tM Index becomes urwailabie during the term of this loan. Lender may designate s substitute index after notice to Borrower. Lender wUl tell Borrower the currant Index rate upon Borrower's request. The interest rate change will not occur more often than each day. Borrower understands that l.endet may make loans based on other rates as well. The Ntidex e+urrantiy {s 7.50096 per annum. Ths interest tabs td be apppsd'!o the uapeid prirrelpM balance of thb Note v+rll) bs at a rats of 2.000 peresrtitage points owr the Index, rssultlng h an initial rata of 9.50096 per armtitirrti. NOTICE: Under no circumstances will the interest rata on this Note bs more then the maximum rate allowed by appllcabla law. PREPAYAAIi~iT. Borrower egroes that all loan fees and otltisr prepaid finance charges are carried fatly as of the date of the loan and will not be subject to roturxl upon early payment twtwthat vok-ntary or as s resuk of default}, except as otherwise rsquirod b1- law. Except for the foregoing, Borrower may pay without penshy. ell or a portion of the amount owed earlier than it is due. Early psyntiatits wiN not, unless agreed to by under in writing, rai'revs Borrower of Borrower's obtigetion to cortitlnua to make payments of accrued unpaid interest. Rather, early peymarrts wUi reduce the principal balance due. Borrower agrees oat to sand Lander payments marked "paid in full', "without recourse', or similar bnguage. If Borrower sends ouch a psymern, Lender may accept it without lasing any of I.ertider's rights under this Note, and Borrower wUl remain obligated to pay any further amount owed >p l.snder. AU written communications concerning tGsputed amound, inctudinp any check or other payment instrunsnt that indicatss•that the payment consthtirtee 'payment in full" of the amount owed or that is terxisred with other cortidilions or Urnftations or sa full aatisfection of a disputed amount must be ensiled or deUvered to; COMMERCE BANK/HARRISBURG N.A„ LOAN SERVICING, PO BOX 1195 CAMP HiLL, PA 17071-1195. LATE CHAR©E, if a payment k 10 days ar more late, Borrower will be charged 6.000% of the regularly seheduNd payment. NTEREST AF1Eil DEFAULT. Upon default, including failure m pay upon final maturity. Lander, et its option, may, ff pemirttsd under applicable law, irtcraase the veriNO(a [rrtsrost rate on this Note to 4.000 Percarrksga points over the Index. The interest rate will rtiot exceed the maximtsn rate permitted by applicable law. If }udgnrsrtit is entered in connection whh this Note, irtereat will continue to accrue on this Note after judgrrbnt at the irrtsrest rate appUcabte to this Noss at the time judgment [a entered. DEFAULT. Each of the following shah constitute an avant of default (`Event of Default'} under this Note; Paymsrit Default. Borrower fails to make any payment when due under this Noss. Other Dsfauhs. Borrower fails to comply with or to perform any other term, obUgatfon, covenant or condition contained in tfiis Note or in any of the ralatad documerrta or to comply with or m perform any term, obligation, covenant or condition corrtatned in any other agreamert between Lender and Borrower. Dsfiuk b Favor of Third Pardee. Borrower or arty Qrantor defaults under any loan, extension of credh, security agreement, purchase or sales agreement, or soy othe- agreentierit, in favor of.artiy other creditor or parson that may materially affect any of Borrower's property or Borrower's abiNty to repay this Note or perform Borrower's obligations under this Note or any of the rolsted documents. EnvlronrnenW Defauk. Failure of any party to comply with or perform when due any term, obUgation, covenant or condition contained in any environmertal egreemant executed in connection with any loan. Fobs Statrmsrrts. Any warrarrry, reproseritatbn or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related doctxnenta is false or misleading 3n any material respect either now or at the time made or furnished or becomes false or misleading at any time thereafter. Dssilti or braoMncy. The death of Borrower or the dissolution or termination of Borrower's existence es a going busir>ass, the insolvency of Borrower, the appobrtn+errt of a receiver for any part of Borrower's properly, any assignment for the benefit of creditors, any type of creditor workout, or the commsncemert of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Cradkor or !-'orfdd+ra Procesdbrgs. Comrnoncamsrt of foreclosure or forfeiture proceedings, whether by judiaiai proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any govemmertal agency against any cogaUral securing the loan. This fnciudas a garnishment of any of Borrower's accounts, including deposit accounts, with Lender, Howsvar, this Evert of Defauk shall not apply if them is a good faith dispute by Borrower as to the validity or roaeonabbness of the claim whkh is the bash of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the cnecUtor or forfeiture proceeding and deposits with lsrtider monies or a surety bond for the creditor or forfeiture proceeding, in an amourt determined by Lender, in its sob discretion, as being an adequate PROMISSORY NOTE Loan No: 16?81150-00 (Continued) reserve or bond for the dispute. Page 2 Events Affectbtg f3uruantsr. Any of the preceding events occwa wRh respect to any Guarantor of any of the indebtedness or any Guarorrtor dies or becomes incompstert, or revokes or disputes the validity of, or liability urxisr, any guaranty of the indebtedness evidenced by this Nots. In the event of n death, Candor, nt its option, may, but shall not bs required to, permit the Guarantor's estate to assume unconditionaNy the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Defauk. Adwne Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Nate is impaired. Insecurity. Lender in good faith believes itself insecure. Cure Provisions. If any default, other then a defauR 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 112) months, it may be cured ff Borrower, after receiving written notka from Lender demandk+g cwe of such default: 11) cures the default within flftesn (15) days; or IZI if the cure roquires rtroro than fifteen 1161 days, immediately initiates steps whleh Lender deems in Lender's sole discretion to be suHScisnt to taro the dafauh and theroafter continues and completes aN reasonable and necessary steps sufficient to produce compliance as anon as reasonably practical. LENDER'S RIQHTS. Upon defauh, Lender may, after giving such notices as required by applicable law, declare the ere unpaid principal bale-rce on this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amourt. ATTORNEYS' FEES; IXPFJiISES. Lender may hire or pay someone else tD help caNect 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 s lawsuit, including attamsys' fees, expanses for bankruptcy proceedings (including efforts m modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also w9l pay any court costa, in addition to all other sums provided by law. QOVERNWQ LAW. Thb Nets will be povemed by federal levv eyrpicabie to Lender and, tc tM extent not preempbd by tederat law, tiu laws of the CarerronweaMh of Pennsylvania without regard to its coMpeta of law provlabns. This Note has been accepted by Lender in the Comnromweaith of PennsyhraNs, RIGHT OF SETOFF. To the extern permitted by applicable law, Lender reserves a right of setoff in aN Borrower's accounts with Lander (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and a6 accounts Borrower may open in the iutwe. However, this does not include any IRA or Keogh accounts, or arty trust accounts for which arotoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff aN "sums owing on the irwiebRedness against any... and alt such accounts. " COLLATERAL. Borrower acknowledges this Note is secured by 2nd lien priority security interest in all business assets and a 3rd mortgage behind a COSH 1st mortgage of $81,181 and a COBH Znd mortgage of $30,000 on the borrower's personal residence located at 3121 Dickinson Avenue, Camp Hill, PA 170t t. " PROPERTY INSURANCE. Borrower understands that Borrower is required to obtain insurance for the collaterel securing this Note. Further iMormation concerning this requirement is set forth in the Secwity Agreement and Mortgage and in the Agreement m Provide Insurance, all the farms and conditions of which are hereby incorporated and made a part of this Note. LINE OF CREDIT. Thin Note evidences a revolving line of credit. Advar-cea under this Note, as well as directions far payment from Borrower's accounts, may be requested orally o- in writlng by Borrower or by an authorized person. Lender may, but need not, require that all oral requests be confirmed in writing. .Borrower agrees to ba fia~e for ail sums either. IAi advanced in accordance with the instrtrctions of an authorized person or iBI credited to any of Borrower's eocounts with Cer~dar. Ths unpaid principal balar-ce owing on this ~ at any time may be evidenced by midorsementa on this Note or. by Lender's irtemal records, including daily computer printouts. Lender will have no obligation io advents funds under this Note if: IA) Borrower or any guarantor is in default under the temps of this Note or arty agreement that Borrower or any guwantor has with Lander, including any agreement made in connection with the signing of this Note; (B) Borrower or any gusnntor ceases doing business or is insolvent; (C) any guaremor seeks, claims or otherwise attempts to Emit, modify or revoke such guarantor's guarantee of this Note or any other ban with Lander; {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 irssecuro. POST CLOSINQ COINPLUWCE. Borrower agrees to execute, re~xecute, cause a Guarantorls} or other third party{Iasi Involved in the loan transaction to execute andlor re-execute and to deliver to Lender or its legal counsel, as may bs deemed appropriate, any document or instrument signed in connection with the Loan wh~h was incorrectly drafted andlor signed, as wall as any documw-t 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 agr~a to comply with any written request by Lender wi~Urin tan {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 defauR under the Loan. ANNUAL PAYOUT PERIOD. Borrower shall be required to reduce the outstanding principal balance under this Line of Credit to zero far a thirty I30) consecutive day period during each year of the Line of Credit. REQUIRED DEPOSIT ACCOUNT. Borrowat{sl and guarantor's) shall be required to establish and maintain primary deposit account relationship with Commerce Bank. COLLATERALIZED/CROSS DEFAULTED. This loan is Cross CollateralfzedlCross Defaulted with Facility A. SBA PROVISION. The Loan soured by thin lien was made under a United States Small Business AdminiaVation {SBA) nationwide program which uses tax dollars to assist amaq business owners, if the United States is seeking to enforce this document, then under SBA regulations: a)When SBA is the holder of the Note, the document and all documents evidencing w securing this Loan will be construed in accordance with federal Iaw.biLender or SBA may use local or state procedures for purposes such as filing papers, rscord'atg documents, giving notice, foreclosing liens, and other proposes, By using these procedures, SBA does not waive any fedarel immunity from local or state control, penalty, tax or Babllity. No Borrower or Guarantor may claim or assert against SBA any local or state law to deny any obNgstion of Borrower, or defeat any claim of SSA with respect to this Loan.Any clause in this document requiring arbitration is not enforceable when 5BA is the holder of the Nate secured by this inavument. SUCCESSOR INTERESTS. The terms of this Nate shall be binding upon Borrower, end upon Borrower's heirs, pereonal representatives, successors and assigns, and shall inure m the benefit of Lender and its successors and assigns. NOTIFY US OF INACCURATE INFORNGITION WE REPORT TO t~NSUNtER R~ORTINfl AflENCIES. Please notify us if we report any inaccurate information about your account(ai to a cons:` 'r reporting agency. Your written note describic xf specific inacp-gacar{ies) should be earn to us at the following address: COMMERCE BF HARRISBURG N.A. LOAN SERVICING PO BOX 1' CAMP HILL, IAA "h7011-t 195. Loan No: 1 6799 1 50-00 PROMISSORY NOTE [Continued) JL"~}`T Page 3 GENERAL PROVISIONS. This Note is payable on demand. The inclusion of specific default provisions or rights of Lender shalt not preclude Lender's right to declare payment of this Note on its demand. If any part of this Note carmot bs enforced, this fact will not affect the rest of the Note. Londor may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and arty 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 Nate, and unless otherwise expressly stated in writing, no party who signs this Npte, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. A11 such parties agree that Lender may renew or extend (repeatedly and for any length of timel this loan or release any party or guarantor or collateral; or impair, fail to rasllze 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. Ali such parties ciao agree that Lander may modify this loan without the consert of or notice to anyone other than the party with whom the modification is made. 7'he obligations under this Note era joint and several If any portion of this Nota is for any reason dotarm's~ed to be unenforceable, k will not affect the er>torceebiF'ity of any other provisions of this Note. CONFE8810N 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 APPEAfl AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FlLEB, 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 (1096) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT 1N ANY EVENT NOT LESS THAN pIVE HUNDRED DOLLARS (6fs00) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF 7HI5 NOTE VB~IIFIED BY AFFIDAVIT SHALL BE SUFFICJENT 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 T)MES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WANES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR 70 A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFlCALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HA5 BEEN REPRESENTED 8Y INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGUING THIS NOTE. BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. INCLUDING THE VARIABLE INTEREST RATE PROVISIiONS. BORROWER A6REF,8 TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS G{VB~I UNDER S~A,j<. AND R IS INTENDED THAT THIS NOTE IS AND SHALL CONSTIME AND HAVE THE EFFECT OF A SEALED (NSTRtJMENT ACCORDtlItG TO' LAW. BORROWE . X ~ . ..t itSeal) my S. . wa na ~w~, r~.. aaaaaew o~,. wrr rr..r rrr.. r vn. fiR N IyYS IY~w.6 -M MNYNMAIMWIMICAy,~lf WG~C 17FMY !emu DtSCLO:. RE FOR CONFESSION OF J4 ;MENT Csa6l; ~ ~T3g Reteronces in the shaded area aro for Lender`s use only and do not limit the applicsb' ' of this document to s A ~ ~ ~ ~„ ~Y ny perdculer ben or item. ny item above containbg has been omitted due to text limltatians. Declarant: Tammy S. Brlnidsy ISSN: DBA: Lender: COMMERCE SANK/HARRISBURG NA. Stolen Moments Photography COMMERCIAL BUSNIESS DEPARTMENT 3121 Dlckinaon Avenue 100 SENATE AVENUE Camp Hit, PA 17011 CAMP HKl , PA 17011 1717! 975-6830 DISCLOSURE FOR CONFESSION OF JUDGMENT ~,~ 1 AM EXECUTING, THIS ' ~ DAY OF ( `~` r C ME TO REPAY THAT AMOUNT. 20~, A PROMISSORY NOTE FOR 810,000.00 OBLKaAT1NG A. I UNDERSTAND THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO ME AND WITHOUT OFFERg110 ME AN OPPORTUNITY TO DEFEND AGAeIIST THE ENTRY OF JUDGMENT. IN EXECUTNO THE NOTE, BEWG FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDTIY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST ME UNDER THE NOTE, I AM KNOWINGLY, INTELLIGENTLY, AND VOWNTARILY WANRIIG THESE RK:iHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AHD I EXPRESSLY AGREE AND CONSENT TO LENDER'S ENTERING JUDGMENT AGAINST ME BY NFESSION A5 PROVIDED FOR IN THE CONFESSKN~I OF JUDGMENT PROVISION. INITIALS - ~ r~ ` ' B. I FURTHER UNDERSTAND THAT !N ADDRION TO GNING LENDER THE RIGHT TO ETITER JUDGMENT AGAWST ME WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE ALSO CONTAINS LANGUAtiE THAT` WOWL'D'PERMTr LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT ERHER ADVANCE NOTICE OR A HEARNG, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHMIG, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. EY EXECUTWG THE NOTE, BEq~IG RILLY AWARE OF MY RIGHTS TO ADVANCE NOTK:E AND A HEARa1G AFTER JUDGMENT tS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, 1 AM KNOWNGLY, INTELLKiENTLY AND VOWNTARILY WAIVING THESE , AND 1 EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT 1N ANY MANNER PE~CW~ APPLICABLE STATE AND FEDERAL LAW. WITHOUT GIVING ME ANY ADVANCE NOTICE. INITIALS:: ~ G. AFTER HAVNG READ AND .DETERMINED WHICH. OF .THE :FOLLOWING STATEMENTS ARE APPLICABLE, BY INRIALEiIG EACH STATEMENT THAT APPLIES, 1 REPRESENT THAT: - INITLALS 1. I WAS REPRESENTED BY MY OWN MIDEPENDEM LEGAL COUNSEL IN CONNECTKN~) WITH THE NOTE. 2. A REPRESENTATNE OF LENDER SPECIFK:ALLY CALLED THE CONFESSION OF JUDGMENT PROVISON M! THE NOTE TO MY ~ `" ATTENTION. D. 1 CEATIF1f THAT MY ANNUAL INCOME EXCEEDS 810.000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN I a1RIAL.ED AND SIGNED Tf; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNgHG. THIS DISCLOSURE IS GNEN UNDER SEAL AND R IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. UWII q10 {.~li./, W.1.~0.00.00~ dA. IWr 1\rW YY„~, M. LA, 1mL M N~FY Il~wi - M CHANGE iN TERMS AGREEMENT PrinNpai L.oaln Date Maturity Lain No cau - cou Afxouf-# OAiwr Initial9 s9 089.34 03-10.2006 06-10-2015 167'91150-00 983 References M the bcrces above ere for Lenders use or~i and do not Ibnlt the eOpik~bikty of tt>is document to any particular Ivan or item. st l """° h d ern above Cente as been Omitte due >p text ie Nmltaiona. BOrfallrer: Tsrnmy t3.8rN-kMy DBA: Stolen Mon~arAs Lender. Metro Bank 31Z Avsnrw 38011 Paxtoal Sfrsst Camp Hlq, PA 17011 Hantsbury, PA 17111 (8ti8) 937.0004 Principe! Afllowtt: 59,989.34 Date of Agreement: June 23, 2011 DESCtMPTION OF ®03TOIti rlDlBS'1'EDNESB. Refer to the Promissory Note dated March 10, 2006. DESCRP'TION OF COLLATERAL Refer to the Security Docternents dated MerCh 10, 2006. DESCRIPTION OF CHANGE iN TERIA3. Effective ~ of the date of this Apraemarrt, ttta Loan shall be changed from a Buskrses Lies of Credit to a forty eight (48) rnorrth term loan with a four (4) year arrrortme0on. The ben wiU no longer have titre avetiabYity and the Inisrost rate shall be fixed at 5.25% for the term of the ban. Principal and interest peymeMs rs8sotlng the new amortlzatbn period wAl be M the amount of 5231.55 and v+dA oorranance July 10, 2011 and shah mrriinua throughout the remaining farm of the loan. The maturity date shall be June 14, 2015 at vwhtch tkne sN outatarxNrrg pdnc{psl and interest, any fees and coats, shall be paid by eorrovwer. The repaymerrt detail Is eat forth below. Upon the sxeunbn of this Change In 7anns Agreemerrt the Borrower sha8 pay to the Lender eM owed pest due interest. Thla Change in Terms Aprearnent Is deemed to have been effective as of March 10.2011. PAYMENT. Borrevnr wul pay this Iwn M accardar-es rwltll iha followMp payment scireduk, whkh caieulats irrtarsst on ttre unpaW principal baMrras as daaer~sd N ttre "M1Tt81E8T CI0.1.CUt.AT)tNl METHOD' Paragraph uahrg fire brtarsst tales dsacribad M this paragraph: 47 rnotrtlrly censacuties prhtciya! and. {tMaraat prlrnrints ad;Z31:S5 sack, baplnnln4 July 10, 20'11, with Irrbrsst calcrrfated on the unpaid princilgd balances usMp an hrhrsat tale of 8.260K Par annum based on a year o! 380 days; and one prlndpsf and Interasl payrnont of :231.47 on June 10, 2013, with Intusst pipriatsd on thr-ratpeld prirrdped balances usirg an irrlsrsst rats of 5.250% par snnun+ based am a year of 380 days. This sstirrrabad Anat payment a based on the ssswaptlon that aR psyrrraMa wM be made exactly a. ~ the acdrN fhral payment aAB be ter all prkraipsGaa~aF aoarud irrinwt riot yet paid; toyatlrsr with arty other unpaid anrounb on thb toan. MrtEREliiT CALdlLJ-TION METHOO. Intersat on tide loan !s wraprrtad on a 38S/380 bests; tlrat 1s, by appylnp ttrs ratb of fhs interest nrb owr ~Nrbrsst psya~bw u1hk Doan b computed usthb method. Thi~i ~a~AaBen msthodn n~auks M~htgherslTaetivs Inlarest note than~the neraaria brlaraat races stated In the loan documanta. CONTtNtpNCi VALlD1TY. Except ~ expressty changed by this Apreerrrerrt, the terms of the original oWigetiar or obiipations, Indudfnp all agrssrt»nis eviderresd or serxsirrg the oblipstkm(s), remain unchanged and in Tull Toros and efiact. Consent. by Lander to ti~aa Agreement doss runt vvaMe Leruisrs rt~-t to sMct performance of the obUpatbn(s) sa dranged, nor obNgata Lander tD make arty tutrae lungs In terms. Nothkrp in this A~aemerrt wilt oonstltuts a aatisfactlorr of the obNgatlan(s). it k the {ntorrrion of I.orrdsr ko rstahr ae tiebk parties ar makers arM endorsers of the oriptrral obigedon(s), indudirrp accommodsflorr parties. rxrless a Party fa exPraedy rakased by Lender in writlng. Any maker ~ errdorssr, lnoludirq acoornrt+odsdorr mskero, will not be relsseed by vir4~e of this Agreement. tf any person who signed tfia ori~nal oblipatbn does not stpn this Aprserrrsrrt below,. than ail.paraons signing below adaurwlsdQe that this Apnremsnt is given c~ruHtlonatiy, baasd on the represerMatlorr tD Lander oral the Wort-elpNng party oonseMa m the changes and Provisions of this Agreement or otherwise will not bs released by it. T?ris waiver applies not only W arty Initlal extension, modifkreiion or rs~ase, but also to ail such subsequsrrt actions. CONFESSION OF JIJDtMBAENI'. BORROWER AGREES THAT THE CONFESSION OF JUDGMENT CLAUSE CONTAINED 1N THE NOTE DATED MARCH 10, 2008, REMAINS IN FULL FORCE AND EFFECT AND LENDERS R1GHT3 THEREUNDER CON7'WUE WiTH THE 91GNING OF TH1S CHANGE IN TERJNS AGREEMENT. THE DISCLOSURE FOR CQIrIFESSION OF JUDGMENT DATED MARCH 10, 2008 REMAIN8 IN FULL FORCE AND EFFECT AND IS DEEMED TO 13E REAFFIRMED WITH THE SIGNING OF THIS CHANGE 1N TERM5 AGREEMENT. BOTH THE NOTE AND THE DISCLOSURE FOR CONFESSION OF JUDGMENT ARE ATTACHED HERETO AS EXHIBIT A. REREtiFMCE TO LENDP..R. This Change In Tenns Agreemerrt is being made by Metro Bank formerly known as Commerce Bank / Harttsburp, N,A THIS At3tiE~11ENT 1S ri1VEN tNr1DFR SF11L AND IT RS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE EFFECT AF A SEALED iNST'RtJMDST ACCatDINO TO LJ1W. PRIOR TO S,~iilf~ TtaS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL 1'I~ PROVISIONS OF THIS AtiRFJ;MENT. BORROWER AflREES TO S OF THE AGREEMENT. EAr. ~Y,r hrYlYw.,K 7M7, ri,l. N~Mr„~„l •M clfn{RICWGIC 71.OItA 17~itl v COMMERCIAL GUARANTY ~v' U ~ c~ t i~ai __~~ _ ~. - ;._ References in the shaded area are for Lender's use only and do not limit the applicability of this document to any pandculer loan or item.- Any item above containing "' •" has been om'Kted dw to text lenotit Nmitatinns_ Borrower: Tammy s. Brinkley Stolen Momarrta PhotoQeaphy 3121 Dickinson Awnw Camp Hig, PA 17011 Guarantor: David J. BrMkley {SSN: 3121 D~ktrtson Avwrus Camp H1Q, PA 17011 DBA: Lender: COMMBiCE BANNJHARRISBURG NJ-. COMMERCIAL NNJSNtiES$ DEPARTMENT 100 SENATE AVENUE CAMP lilLL , PA 17011 1717) 976-b830 a CONTINUNYG GUARANTEE OF PAYMENT AND PERFORMANCE. Far good and valuable consideration, Guarantor absokrtely and unconditbnaly guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the parfomrance and discharge of ati Borrower's obligations under the Nota and the Related Documents. This is a guaranty of payment and performsr~e and not of collection, so Lander can enforce this Gwranty against Guarantor even when Lender has not exhausted Lender's renwdies against anyone else obligated to pay the Indebtedness or agaMst any collateral securing the IndebRadnass, this Gwrarrty or any other gwronty of the Indebtedness. Guarantor will make arty payments to Lander or its order, on demand, in legal gander of the United States of America, In same-day funds, without set-off or deduction or counterclaim, and will otherwise perform Borrower's oblgatons under the Note and Related Documents. Under this Guaranty, Guarantor's liabiMty is unlimited end Gusrantor'a obligations are cominuing. INDEBTEDNESS. The word "Indebtedness' as used in this Guaranty means all of the principal amourrt outstandir~ from time to time end et any ono or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by isw, attorneys' fees, arising from any and all debts, IiabNhies and obligations of every nature or form, now existing or hareaiter ariskrp or acquired, that Borrower indlvlduslly or cotlectively or interchangeably with others, owes or will owe Lander. `Indebtadnesa" includes, without Nmitatlas, bans, advances, debts, overdraft indebtedness, credit card indebtedness, lease obNgationa, outer obligations, aril NabiNties of Borrower, ~d any present or future judgments against Borrower, future advances, loans or transectians that renew, extend, modify, refinance, eoneoUdate or substitute these dam, Nsbilltfee and obNgations whether: voluntariy or involuntarily inCUrrod; due or to become due by their terms or accolsrotbn; absolute or corrtingarrt;.liquidatsd or unliquidated; determined ar undetermined; direct or fndiroct; primary or secondary in mature or grlsMp from a guaroMy. or sorely; secured or unaecurod; joint or several or joint end several; evidenced by a negotiable or non-negotiable instrument or writing; originated by Lender or another or others; barred or uneMon:sable against Borrower for any reason whataoevar; for any transactions that msy be voidable for any reason {such as infancy, insanity, ultra vires or otherwise); and originated than reduced or extinguished and then afterwards increased or reinstated. If Lender presently holds one or more guarantee, or hereafter teceivea additional guaranties from Guatantor, Lender's rtghta under all guaranties shall be cumuletiva. This Gwrartty shell not ;unless specifically provided below to the contrary) affect or invaNdata any such other guaranties. Gu~arttor's ilebiliry will be Guarantor's aggregate Nabil'rty underthe terms of ihle GwroMy and any such other unterminated gwrantiss. CONTNNNJNNG GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHK~i GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION- QF THE INDEBTEDNESS OF 80RROWER TO LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUN~lG BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE INDEBTEDNESS WILL• NOT DISChlAARGE ~Oli ~DIMNWSH Gk1ARAfJ•TQR'S ~OBUGATIONS AND t.lAB1UTY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDENG INDEBTEDNESS EVEN WHEN ALL OA PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO TIME. DURATION OF GUARANTY. This Guaranty wNl take effect when received by (.ender without the necessity of erry acceptance by Lender, or any notice to Guarantor or to Borrower, and wiN 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 finsNy paid and satisflsd and aN of Gwrantor's other obNgations under this Guaranty ahaii have been performed in full. If Guarantor elects to revoke this Guaranty, Gwrantor may only do so in writing. Guarantor's written notce of revocation must be mailed to Lender, by certiflsd mail, at Lender's address listed above or such other place as Lender msy designate in writing. Written revocstian of this Guaranty will apply only m advances or new Indebtedness created after actual roce)pt by Lander of Guarantor's written revocation. For flue purpose and without limitatbn, the term 'new Indebtedness' doss not include the Indebtedness which at the time of notice of revocation is contingent, unliquidatad, undetermined or not due and wNch later becomes absolute, liquidated, determined or due. This Guaranty will continue to bind Guarantor for e!I the Indebtedness incurrod by Borrower or committed by Lender prior to receipt of Guarantor's written ratite of revocation, inckxiing any extensions, renawak, substiwtions or modifications of the Indebtsdr~ss. All renewals, extensions, substitutions, and modiflcatbns of the Indebtsdnesa granted after Gwrarrtor's revoaaton, are corrtempleted under this Guaranty and, spsclficaNy wiN not be considered to be new Indabtadnssa. This Guaranty shall bind Guarantor's estate as to the Indebtedness ereatad both before and after Guwartor's death or incapacity, regardless of Lender's actual notice of Guarantor's death. Subject to the foregoing. Guarantor's executor or adminiatrstor or other legal roprsaentatlve may terminate this Gwranty In the same manner in which Guarantor might have terminated it and with the aama effect. Raleaae of any other guarantor o- terminatbn of any other pwranty of the lndebtsdrtaas shall nat affect the IiabiNty of Guwantor under this Guaranty. A revocation Lender rses{ves from arty one or more Gwrarrtoro ahaN not effect the NabNity of any remaining Guarantors under thle Gwrsnty. n le anddpabd that fluetuatlons may occur h tM anrowtt of the Irsifabbdnes: covered by tirle Owrarrty, end Gwrarrtor spscHicaBy s~cknowledgea and agrees Chet roduetbns b the amount of tMre inde~edness, even !n zero dollars iiO.OD), Prior to Guarantor's wr[Rtsn rsvocatlon of tfib Guaranty shat not conalitrrta a termbstion of thle Guaeanly. This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and assigns so Long as arty of the lndebpdness rarrrekts unpale end aver tlwugh the Indsbtedrraas may from tLrra to time be zero dollars {!0.001. GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Candor, either before ar after any revocation hereof, witlwut notice or demand and witlwut leseenirg Guarantor's NabiRty order this Guaranty, from t2rre to time: {A) prior to revocation as set forth above, to make one or moro additional secured or unsecured loans to Borrower, to lease equipmaM or other goods to Borrower, or otherwise to extend additional erodit to Borrower; IB) to altar, compromise, renew, extend, accelerate, or otharwlae change one or moro times the tkna for payment or other terms of the Indebtedness or any part of the Indebtedness, including incrouea and decreases of the rate of intsrost on the lndebtednesa; extensions may be ropeated and may be for bngar than the original ban term; iC) to take end hold security for the payment of this Guaranty or the indebtedness, and exchange, enforce, waive, subordinate, fail or decide not m perfect, end 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, endorsaro, or other guarantors on arry terms or in any manner Lender may choose; IEj to determine how, when and what appNeation 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 nonjudiciel sale permitted by the farms of the controlling securtry agreement or deed of trust, as Lender in its discretion COMMERCIAL GUARANTY Loan No: 18791150-00 (Confinued~ Page 2 may determine; 1G! to sail, transfer, assign or grant participations in ail or any part of the tndeb~dness; and (H} to assign or transfer this Guaranty In whole or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represerrts and warrants to Lender that (A} no rspreswttations or agreements of arty kind have bean made to Gwrantor which would NmFt or quality in any way the terms of this Guaranty; 4B! this Guaranty is executed at ecrrower's request end tort at the request of Lender; {C} Guarerrtor has fuN power, right and authority to snar into this Guararty; {D) the provisions of this Gwrsrtty do net conflict with or result in a default under any agreement or other instrument bindtnq upon Guarantor and do not result in a violation of arty law, regulation, court decree or order applicable to Guarantor, (E) Guarartor has not and will not, without the prior written consent of Lander, aeN, leave, assign, encumber, hypothecate, trsrtsfar, or otherwise dispose of ~ or substantially all of Guarantor's assets, ar any interest tttarein; (F) upon Lender'a request, Guarantor wiN provide to Lender financial and credit information in form acceptable to Lender, and all such finar~ial informatlon which currontly has been, and all ftt4.rre financial information which wiN ba provided to Lender b and will bs trw and correct in all material reapscta and fairly present Guarantor's financia{ condition as of the dates the finartcbl information is provided; {G} no material adverse change has occtmed in Guarsntor'a financial condition since the date of the most recent financial statemsrtts proves in Lander and no event has occurred which may materiaNy adversely affect Gwrerttor's finartciat condition; IH! no litigation, claim, investigation, administrative proceeding or similar action iincludirtg those far unpaid taxes] against Guarantor is pending or threatened; {U Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and (J) Guarantor has establiahad adequate means of obtaining from Borrower on a continuing basis information regarding Borcowor'a financial condhion. Gwrarttor agrees to keep adequately informed from such means of any facto, events, or circtxrtstances which might in any way sftsct Gwrsntar's risks under this Guaranty, and Guarantor further agrees that Lander shall have no obligation ~ disclose to Guarantor any information or documents acquirod by Lender in the course of its relatlonahip with Borrower. GUARANTOR'S FNdANC1AL S7ATEIYIENTS. Guarantor agrees to famish Lender with the following: Annual Staterrtertts. As soon as available, but in nor event later than one-hundcsd-twenty (720) days .after the end of each fiscal year, Gwrantor'e balance shoat end income atatemerrt for the year ended, prepared by twrentar. Tax Retains. As soon as available, but in no event later than one-hundred-twenty (S20} days after the applicable filing date for the tax reporting period ended, Federal and other governmental tax retains, proparod by Guarantor. Ail financial reports regtired to be provided under this Guaranty ahatl be prepared in accordance with GAAP, applied on a consistent basis, and certified by Guarantor as being true and correct. GUARANTOR'S WAIVERS. Extept as prohibited by appNcable law, Guarantor waives any right -to require Lender (A! to continue lending money or to extend other credit m Borrower, (B} to make any proserttment, protest, demand, or -notice of any kind, including notice of airy nonpayment of the indebtedness or. of any. nonpaymart relatadtoi lily coNaterdl,- or rt`e~de M'any' action> or nonaction on the part of Barrower, Lender, any surerty, endorser, or other guarantor in connection with the Indebtedness or in connectbri with the creation of new ar additional loans or obligations; (C) to resort for payment or m proceed directly or at once against any person, including Borrower or any other guarantor; {D} to proceed directly against w e~dtauat any colkteral hski by Lenderfrom Borrower, any other guarartor, or any other person; fE! to give notice of the ferrite, time, and place of any pubNC or .privets. sale. of ps_r4ioctal_ property security halo by Lander from Borrower or to comply with any ottter applicsbb provisions of the Uniform Commercial Code; {A to pursue any other remedy within Lender's power; or {G1 to commit arty act or ombsian of any kind, or st any time, with respect to any matter whatsoever. Guarantor also waives any and aN rights or defenses based on suretyship or impairment of collateral including, but not Cunited to, any rights ar defenses arising by mason of {Al any `one action" or 'sntl-deficiency" law or any other law which may prevent Lender from bringing wty action, Inclttdir~g a chtkrt for deficiency, against Guarorrtor, before or after Lender's commencement or completion of any foreclosure action, either )udicialty or by exercise of a power of sale; (ei any election of remedies by Lender which destroys or otherwbe adversely affects Gtlar8nt0-'8 subrogatiOn.,[~Itte.. M,,Guacantar's..rights to proceed against Borrower for roimburaement, inCltxiing without Nmitstion, any lose of rights Gwrantor may suffer by reason of any law limiting, qualitymg, or discharging the Irtdabtednesa; {C! airy disabNity or other dafanae of Borrower, of arty other guarantor, or of any other person, or by reason of the cessation of Borrower's iiabNity from any cause whatsoever, other than payment in full in legal tender, of the Indebtedness; ID] arty right to claim discharge of the Indebtedness on the basis of unjustified impairrrront of any collateral for the Indebtedness; I4 any statute of iinirtatlona, 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 g'nren to guarantors at law or in equity other than actual payment and performance of the Indebtedness. If payment b made by Borrower, whether voluntarily or otherwise, ar by any third parry, on the Indebtedness and thereafter Lender is forced t0 remit the amount of that payment to Borrower's trustee in bankruptcy or to any similar parson under any federal or state bankruptcy !aw 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 cbim at any lima any deductions to the amount gwrartteed tinder this Guaranty for any claim of setoff, cotxtterclaim, counter demand, recoupmertt or aimiar r~ht, whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both. GUARANTOR'S UNDERSTANDNVG WfTH RFJSPECT TO WAIVERS. Guarantor warcants and agrees that each of the waivers set forth above is made with Guarantor's fuH knowledge of its significance and consequences and that, under the circumstances, the waivers ere reasonable and not contrary to public policy or taw. If any such wa'nrer is determined to be contrary to any applicable law or pubNc 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 Lander (whether checking, savings, or some other accourttl. This inckxiea ell accounts Guarantor holds jointly with someone alas and all accounts Guarantor may open in the ftrttue. However, this does not include any IRA ar Keogh accounts, or any trust accounts for which setoff would be prohibited by taw. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these {ands if there is a defauh, and Loader may apply the funds in these acoounts to pay what Guererttor owes under the terms of this Guaranty. SUBORDNYATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indobtadneas, 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 Inaohrertt. GuararKOr hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim that Lender may now ar hereafter have against Borrower. M the event of insolvency and consegwrrt IkKtidatian of the esaets of Borrower, through bankruptcy, by an aaaignment for the benefit of creditors, by voluntary 5quidatkan, ar 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 fkst applbd by Lender to the Indebtedness. Guarantor does hereby assign to Lander all claims which it may have or acquire against Borrower or against any aasignse or truatea in bankruptcy of 8orcower; provided however, that such aasignmern shall be effective only for the purpose of assuring to Lsndar full payment in legal tender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or oh[igations of Borrower to Guarantor shah be marked with -legend that the same aro subject to fhb Guaronr •nd shall be defrvared to Lender. Guarantor agretir, and Lender is hereby authorixed, in= name of Guarantor, from time to time to fife find ~g statements and eorrtiriuation statements and to execute documents and to take such ~.ner actions as Lender deems necesaarv or appropn~te to perfect, preserve and enforce ib riahts COMMERCIAL GUARANTY Loan No: 16791150-Of) (Confinued) Page 3 under this Guaranty. 0 ~~ MISCELLANEOUS PROVISIONS. The following miscellaneous provisicns are a part of this Guaranty: • v AmsndmsrKS. This Guaranty, ;ogather with arty Related Documents, constitutes the entire understand'mg regiment of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shaft be affective unless given in wrfting anef signed by the party or parties sought to be charged or bound by the aksration or amendment. Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand aN of lender's costs end exparu:as, including Lender's attorneys' foes and Lender's legal expenses, incurred in connection with the ertforoemant of this Guaranty. Lender may hire or pay someone ales to help enforce this Guaranty. and Guarantor shah pay the costa end expanses of such enforcement. Coats and expenses include Lender's attorneys' fees and legal expanses whether or not there.. k a lawsuit, inGuding attorneys' fees and legal expanses for bankruptcy proceedings tirx.lutSng efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post judgment cdlaciion services. Guarantor also shall pay al[ court costs and such additional fees as may be directed by the court. Caption Hsadirrps. 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 wNl be governed by fsdsrel law appika6le to Lender and, to the extent not prsempbd by federal law, the laws of the Commonwealth of Pennsylvania wthout regard to its confNcts of law provisions. This Guaranty ha bean accspted by Lender in the Commonwealth of Psnnsylwnia. Irrtegratlon. Guararrtor further agrees that Guarantor has read and fully understands the farms of this Guaranty; Guarantor has had the opportunity to be adv~ed by Guararrtor's attorney with respect to this Guaranty; the Guaranty fully reflscta Guarantor's intentions and parol evidence is not required to interpret the farms of this Guaranty. Guarantor horsby indemnifies end holds Lender harmless from aN losses, claims, damages, and costa (including Lender's attorneys' fees) suffered or incurred by Lander as a reauh of any breach by Guarantor of the warranties, represantadans and agreements of this paragraph. Irrtsrpretatlon. In all cases where there is more than one Borrower or Guarantor, then ail words used in this Guaranty in the singular shall be deemed to have been used in the plural where the context and construction ao require; and where there is more than one Borrower named in this Guaranty or when this Guaranty is executed by more then one. Guarantor, the words "Borrower" and "Guarantor` rospectively ahaN mean all and any one or more of them. The words "GuarantOr," "Borrower," and 'Lender' inckide the hairs, succeasore, assigns, and tnmsferees of each of them. If a court finds tiller any provision of the Guaranty is not vaNd or shoukf not be enforced, that fact. by itself will not mean that the rest of this Guaranty NriN net be valid or erdoresd. Thereforo, a_court wN enforce the rest of the provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid of unikiforceable. If any one or more of` Borrower or Guarantor are corporations, partnerships, limited liability companies, or aimNsr entitles, it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the oificers~ drcectors, partners, menagero, or other agents acdng 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. Notkss. Unbss otherwise provided by appbcable law, any notice required to be given under this Guarenty shall be given in writing, and, except for revocation .notices by Guarantor, shall ba effective when actuaNy delivered, when actusgy received by tslefacsimile (unless athsrwise required by law}, vrhen deposited with a nstionplly recognized overnight courier, or, if maNed, when deposited in the United States mail, ea first class, certfied or rsgiatered meal postag0 prepaid, directed to the addreassa shown near the bogirmirp of this Guaranty. AA revocation notices by Guarantor shall be in wrRirq and shag bs effective upon delivery to Lender as provided In the sectbn of this Guaranty entitled 'DURATION OF GUARANTY.' Any party may change its address for notices under this Guarerrty by giving formal written notice to the 'ot'ltei' parties, speciTyiirip 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 Currant address. Unless otherwise provided by sppNcable hw, if there is more than one Guarantor, any note given by Lander to any Guarantor is deemed to 6e notice given to all Guarantors. No-Waiver by Lender. Lender. shah not be deemed to have waived any rights under this Guararty unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exerc}sing any right shall operate as a waive of such right or any other right. A wai~rer by Lender of s provision of this Guaranty shall not prejudice or constitute a waiver of Lender's right othemiss to demand strict cornptiancn with ihsi provision or any other provision of this Guaranty. No prior waiver by lender, rxrr any course of deaNng between lender and Guarantor, shah constitute a waiver of any of Lender's rights or of arty of Guarantor's obligations ~ 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 subaequant instances where such consent is required and in aN cases such conaant may be granted or withheld in the sole discretion of Lender. Successors and Assigns. Tho forms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal repr~entativos, auccassore, and assigns, arxl shall be enforceable by Lender and its successors and assigns. DEFINiTK)NS. The following capkelizad words and farms shell have the following meanings when used in this Guaranty. Unieas specifically stated to the contrary, ail references to dollar amounts shah mean amounts in lawful money of the UniUd States of America. Words and terms used in the singular shall include the plural, and the plural shall intludo 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 Tammy S. Brinkley and includes all co-signers and cc-makers signing the Note end elf 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 David J. Brinkley, end in each Caso, any signer's successors and assigns. Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lander. Indebtedness. The word "Indebtedness" meena Borrower's indebtedness to Lender as more paRicularly described in this Guaranty. !.ender. The word "Lander" means COMMERCE BANK/HARRISBURG N.A., its successors and assigns. Nora. The word "Note" means and includes without Nmitetion all of Borrower's promissory rwtes and/or credit agreemarrts evidencing Borrower's loan obligations in favor of Lender, together with ad renawela of, extensions of, modifications of, refinancings of, conaofidationa of and substitutions for promissory notes or credit agreement. Related Documsrrts. The words 'Related Documents" mean all promissory notes, credit agremr-enta, loan agreernerrts, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and aN other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Mdebtednsss. COMMERCIAL GUARANTY Loran Na: 16791150-00 (COntinu8d) Page 4 CONFESSON 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 OA 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 (1096} OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTK)N, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (5600} 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 SUFFIgENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXEAgSE 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 HA5 BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. EACH UNDERSK3NED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISK~NS OF THIS GUARANTY AND AGREES TO RS TERMS. IN ADD(iTON, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTK)N AND DELIVERY OF TENS GUARANTY TO LENDER AND THAT THE GIUARANTY WU.L CONTNYUE UNTN. TERIYINrATED W THE MANNER SET FORTH NV THE SECTK~N 7TfLED "DURATION OF GUARikNTY'. NO FORMAL ACCEPTANCE 8Y LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED MARCH 70, 2006. THIS GUARANTY IS GIVEN UNDER SEAL AND R IS INTENDED THAT TH[S GUARANTY IS AND 8HALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED NYSTRUfiAENT ACCORDING TO LAW. GUARANTOR: ~~ X Seep ~: . J. Grin .y INDIVIQUAL'' - ACKN~1lItLEDGMENT COMMONWEALTH OF PENNSYLVANIA } SS COUNTY OF ~/TT\Y ~~ } On thia, the _r___,~, day of `~ ~[ pt.6t,.'~ uV~ , 20 ~, before mo ~ . the underei{~ed Notarir Public, personally appeared Dwld J. Brkrklhr, sown ma for satlsfai:tariiy provenl to be the person whose name is subscribed to the within instrunlerrt, and acknowledged that he or she executed the same for the purposes therein ~orrtained. In wibass whereof, I hereurKo sit mx.fiand-mod ofYicW seal. S ` s i..., H~e,E Bayer, i~~~ryP1~4 ~ ( tit'~:;~~c:~tiwp.,GUtltlatiat~C~.~~,~ . ~•~~('~~, rte::::- Fx•~ir~Jw'ie5,2C1~3~ Notary i in and for the State of ~,~ lV,.....:L . ~L1:i ~~1~~ .. Wtll lIIO LMi~. Ys. i.76ROW C~R• IY11,M A.~Y MIYtl"R Ir iM7. 771 M IYpu II~rwL -111 M:11111YMTUMMWII{N1tiK 1R1~1Y lRil DISCLCI. .IRE FOR CONFESSION OF Jt ~GMENT ~~ ~ _ ~. ~ ~- t~ ~ References to the shaded area ere for Lander'. use ordy and do not Nmh the applicabNlty of this document to any particular loan or hem. Any item above containing has been omitted due to text length Ilmitstior~s. Borrower: Tammy S. Brinkley ISSN: Slolat Mornerrts Photograpny 3121 DiokMaan Awnus Camp HIII, PA 17011 Declarant: David J. Br{rrkley ISSN: 3121 Old:lnaon Avenw Camp HIS, PA 17011 DBA: Lender: COMMERCE BANKIHARRNIBURG NA. COMMERCIAL BUSNES8 DEPARTMENT 100 SENATE AVENUE CAMP HtLL , PA 17011 17171 976-6830 DISCLOSURE FOR CONFESSION OF JUDGMENT n~ f AM EXECUTNIG, THIS ~ +~ DAY OF ~{ ~-~' ` 20 ~ A GUARAN TY OF A PROMISSORY NOTE FOR S 10,000.00 OBLIGATING ME TO REPAY THAT AMOUNT. A. I UNDERSTAND THAT THE GUARANTY C~IITAIN8 A CONFESSION OF JUDQMENT PROVISION THAT WOULD PERMR LENDER TO ENTER JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE GUARANTY, Wfi'IfOLiT ADVANCE NOTICE TO ME AND WITHOUT OFFERBYG ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDQMENT. IN EXECUTING THE GUARANTY, BEWG FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE YALIDRY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGANMST ME UNDER THE GUARANTY, I AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAMMG THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO LEN G~tJDGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISKIN._ _ ; . INtT1Al ~ ~~;~ _ _ . B. 1 FURTHER UNDERSTAND THAT W ADDITION TO GMNG LENDER THE RIGHT TO ENTER JUDGMENT AQANIIST ME WITHOUT ADVANCE NOTK:E OR A HEARBG, THE CONFESSION OF JUDGMENT PROVISION N THE GUARANTY ALSO CONTANS LANQUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WR'HOUT EITHER ADYANGE NOTICE OR A HEARMG, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON. TAKING POSSESSION OF OR OTHERWISE SEQMKi MY PROPERTY, NV FULL OR PARTIAL PAYMENT OF THE JUDGMENT. Illl EXECUTING THE GUARANTY, BBNG FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND A HEARNIG AFTER JUDGMENT M ENTERER AND BEFORE EXECUTKNI ON THE JUDGMENT, I AM KNOWBiIGLY, INTELLK?ENTRY AND VOLUNTARILY WAMNG THESE RIGHTS, AND i EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING ON THE -- ~ - JUDG _ MI ANY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GMNG NS= ANY ADVANCE NOTICE. INITIALS I,~ ~~~ C. .AFTER HAVING READ AHD DETERMINED WHK:H OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, I REPRESENT THAT: INITIALS 1. !WAS REPRESENTED BY MY OWN MIIDEPENDENT LEGAL COUNSEL N CONNECTK)N WITH THE GUARANTY. ~~~ 2. A REPRESENTATIVE OF LENDER BPECg7CALLY CALLED THE CONFESSION OF JUDGMENT PROVISKXII IN THE GUARANTY TO MY ATTENTKNI. D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS E70,000; THAT THE BLANKS IN THIS DMCLOSURE WERE FILLED IN WHEN 1 INITIALED AND SIGNm IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGN9YG. THIS DISCLOSURE ~ 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: ,~ „j, •• ` fit,. - .~\ ~ D J. y wm nw i..a.M w. ~.soama aw. h.rr ti~.r ri.r. r,. ors, ~ ~. ww.~....r...w w 1Rm~ nFn ~~~~ k3AIV !~C October 5, 2012 3801 Paxton Street 888.937.0004 Harrisburg, PA 17111 mymetrobank.com CERTIFIED MAIL, RETURN RECEIPT REQUESTED Tammy S. Brinkley dba Tammy S. Brinkley Stolen Moments Photography 367 N. 24a' Street 367 N. 24a' Street Camp Hill, PA17011 Camp Hill, PA 17011 David J. Brinkley 367 N. 24~' Street Camp Hill, PA 17011 Re: Indebtedness of Tammy S. Brinkley dba Stoke Moments Photography (the `Borrower") to Metro Bank iua Commerce Bank/ Harria6urg, N.A. (the ~~Bank") as guarantied by David J. Brinkley (collectively, the uGaarantors'~ Dear Ms. Tammy Brinkley and Mr. David Brinkley; Responsibility for the loan arrangements between the Bank and the Borrower has been transferred. All communications from the Borrower and/or Guarantors to the Bank are to be addressed to Melissa Auman, Officer Title, P O Boi 4999, Harrisburg PA 17111, until further written notice from the Bank. Reference is made to the Promissory Note of the Borrower in the original principal amount of $10,000.00, dated March 10, 2006 and payable to the order of Metro Bank flca Commerce Bank/ Harrisburg/ N.A.{the "Term Note"). The Borrower is in default under the Term Note in that the Borrower has failed to, among other things, make payments when due and cessation of operations {the "Term Note Default"). This letter constitutes formal notice to the Borrower and Guarantors of the occurrence of the Term Note Default. Effective immediately, the Bank has elected to increase the rate of interest charged on the unpaid principal balance of the Term Note to the default rate of interest provided for in the Term Note, which the interest rate duc and payable under the Term Note plus 4.00`/o per annum {the "Term Note Default Interest Rate"). The Borrower may continue to receive invoices for payments under the Term Note that do not reflect this change in interest rate. The failure of the Bank to forward invoices to the Borrower reflecting payments at the Term Note Default Interest Rate is in no evern a waive* of the imposition by the Bank of the Term Note Default Interest Rate under tbe Term Note as of the date set forth herein. As a result of the Borrower's default, the Bank has elected to exercise its option to declare the entire unpaid principal balance of the Term Note and all accrued and unpaid interest to be immediately due and payable. As of October 5, 2012, there is unpaid, due and owing to the Bank under the Term Note the amount of 58,367.29. Demand is hereby made for the immediate payment in full of all amounts which are due and which may become due under the Term Note. The balance due under the Term Note may increase or decrease as a result of the receipt of payments and the proceeds of collateral securing the Term Note and the accrual of interest, late charges, costs of collection and other fees, costs and expenses. Therefore, immediately prior to remitting payment, please contact Melissa Amman at (717) 412-6317 to obtain final payoff amounts and remittance. instructions. Nothing contained in this letter constitutes a waiver or release of any of the terms or provisions of the Team Note, The Demand Note or of any and all other notes, instruments or agreements between the Bank arai the Borrower and/or Guarantors (the "Loan Documents"}. The Bank reserves all rights and remedies available to it under the Loan Documents and applicable law, all ofwhich are expressly hereby reserved. No discussions between the Bank and the Borrower and/or Guarantors concerning this notification, other Loan relationships between the Bank and the Borrower and/or Guarantors, or any other matter shall imply ~ agreement on the part of the Bank to waive any of its rights and remedies or to forbear from taking any action authorized by the Loan Documents or applicable law, whether or not such discussions play be continuing. Any communications with any representative of the Bank, whether oral or written, will be mere discussions only and will not in any way commit or be binding upon the Bank unless reduced to a writing signed by an authorized officer of the Bank. Such communications will not represent any course of dealing, and in no manner shall you rely in any way on any such discussions unless such communications are reduced to a writing signed by an authorized officer of the Bank The acceptance of any partial payment of any of the obligations of the Borrower and/or Guarantors to the Bank shall not be deemed a waiver or limitation of any of the Bank's rights reserved herein as to the full amount of any unpaid balance. Any delay or forbearance by the Bank in the enforcement or pursuit of any of its rights and remedies under the Loan Documents or applicable law shall not constitute a waiver thereof, nor shall it be a bar to the exercise of the Bank's rights or remedies at a later date. Should you have any questions, please do not hesitate to contact me. Sincerely, METRO BANK Melissa Auman Commercial Asset Recovery Specialist ~~ A ! ~ 3t?01 Paxton Street 888.937.0004 t V Harrisburg, PA 17111 myr+cbank.com October 8, 2012 CERTIFIED MAIL, RETURN RECEIPT REQUESTED Tammy S. Brinkley dba Staten Moments Photography 367 N. 24`~ Street Camp Hill, PA 17011 Tammy S. Brinkley 367 N. 24~' Street Camp Hill, PA17011 David J. Brinkley 1903 Princeton Ave. Camp Hill, PA 17011 Re: Indebtedness of Tammy S. Brinkley dba Stolen Moments Photography (the "Borrawer") to Metro Bank fka Commerce Banal Harrisburg, N.a. (the "Bank") as guarantied by Da~-id J. Brinkley (collectively, the "Guarantors") Deaz Nls. Tammy Brinkley and IVir. David Brinkley; Responsibility for the loan arrangements between the Bank and the Borrower has been transferred. All communications from the Borrower and/or Guarantors to the Bank are to be addressed to Melissa Auman, Officer Title, P O Box 4999, Harrisburg PA ].7111, until further written notice from the Bank. Reference is made to the Promissory Note of the Borrower in the original principal amount of $10,000.00, dated March 10, 2006 and payable to the order of Metro Bank flca Commerce Bank' Harrisburg/ N.A.(the "Term Note"). The Borrower is in default under the Term Note in that the Borrower has failed to, among other things, make payments when due and cessation of operations (the "Term Note Default"). This letter constitutes formal notice to the Borrower and Gruarantors of the occurrencz of the Term Note Default. Effecti~+e immediately, the Bank has elected to increase the rate of interest charged on thz unpaid principal balance of the Term Note to the default rate of interest provided for in the Term Note, which the interest rate due and payable under the Term Note plus 4.00°.ro per annum (the "Term Note Default Interest Rate"). The Borrower may continue to receive in~•oices for payments under the Term Note that do not reflect this change in interest rate. The failure of the Bank to forv~°ard invoices. to the Borrower reflecting payments at tEie Term Note Default Interest Rate is in no event a waiver of the b imposition by the Bank of the Term Note Default Interest Rate under the Term Note as of the date set forth herein. As a result of the Borrower's default, the Bank has elected to exercise its option to declaze the entire unpaid principal balance of the Term Note and all accrued and unpaid interest to be immediately due and payable. As of October ~, 2012, there is unpaid, due and owing to the Bank under the Term Note the amount of X8,367.29. Demand is hereby made for the immediate payment in full of alI amounts which aze due and which may become due under the Term Note. The balance due under the Term Note may increase or decrease as a result of the receipt of payments and the proceeds of collateral securing the Term Note and the accrual of interest, late chazges, costs of collection and other fees, costs and expenses. Therefore, immediately prior to remitting payment, please contact Melissa Auman at {717) 412-6317 to obtain final payoff amounts and remittance. instructions. Nothing contained in this letter constitutes a waiver or release of any of the terms or provisions of the Term Note, The Demand Note or of any and all other notes, instruments or agreements between the Bank and the Barrower and/or Guarantors (the "Loan Documents"}. The Bank reserves all rights and remedies available to it under the Loan Documents and applicable law, all of which are expressly hereby reser~~ed. No discussions between the Bank and the Borrower and/or Guarantors concerning this notification, other loan relationships between the Bank and the Borrower and/or Guarantors, or any other matter shall imply an agreement on the part of the Bank to waive any of its rights and remedies or to forbear from taking any action authorized by the Loan Documents or applicable law, whether or not such. discussions may be continuing. ~.ny communications v~~ith any representative of the Bank, whether oral or written, will be mere discussions only and will not in any way commit or bz binding upon the Bank unless reduced to a writing signed by an authorized officer of the Bank. Such communications will not r~~prCSent any course of dealing, and in no manner shall you rely in any way on any such discussions unless such communications are reduced to a writing signed by an authorized officer of the Bank. The acceptance of any partial payment of any of the obligations of the Borrower and/or Guarantors to the Bank shall not be deemed a waiver or limitation of any of the Bank's rights reserved herein as to the full amount of any unpaid balance. Any delay or forbearance by the Bank in the enforcement or pursuit of any of its rights and remedies under the Loan Documents or applicable law shall not constitute a waiver thereof, nor shall it be a baz to the exercise of the Bank's rights or remedies at a Iater date. Should y ou have any questions, please do not hesitate to contact me. Sincerely, METRO BAN1: Melissa Auman Commercial Asset Recovery Specialist {~ Bf~ ~ ~ Harrisburg A 17111 mymetro .com October 8, 2012 CERTIFIED MAIL, RETURN RECEIPT REQUESTED Tammy S. Brinkley dba Tammy S. Brinkley David J. Brinkley Stolen Moments PhotographS~ 367 N. 24~h Street PO Box 1214 367 N. 24a' Street Camp Hill, PA17011 Camp Hill, PA 17011 Camp HiII, PA 17011 Re: Indebtedness of Tammy S. Brinkley dba Stolen Moments Photography (the "Borrower"} to Metro Bank flea Commerce Bank/ Harrisburg, N.A. (tbe "Bank") as guarantied by David J. Brinkley (collectively, the "Guarantors"} Dear Ms. TammyF Brinkley and Mr. David Brinkley; Responsibility for the loan arrangements between the Bank and the Borrower has been transferred. All communications from the Borrower andlor Guarantors to the Bank are to be addressed to Melissa Auman, Officer Tine, P O Box 4999, Harrisburg PA 17111, until further written notice from the Bank. Reference is made to the Promissor3~ Note of the Borrower in the original principal amount of $10,000.00, dated March 10, 2006 and pa}able to the order of Metro Bank flea Commerce Bank/ Harrisburg/ N.A.(the "Term Notc"). The Borrower is in default under the Term Note in that the Borrower has failed to, among other things, make payments when due and cessation of operations'(the "Tenn Note Default"}. This letter constitutes formal notice to the Borrower and Guarantors of the occurrence of the Term Nate Default. Effective immediatel}•, the Bank has elected to increase the rate of interest charged on the unpaid principal balance of the Term Note to the default rate of interest provided for in the Term Note, which the interest rate due and payable under the Term Note plus 4.00% per annum (the "Term Note Default Interest Rate"}. The Borrower may continue to receive invoices for payments under the Term Note that do not reflect this change in interest rate. The failure of the Bank to forward invoices to the Borrower reflecting payments at the Term Note Default Interest Rate is in no event a waititer of the imposition by the Bank of the Term Note Default Interest Rate under the Term Note as of the date set forth herein. As a result of the Borrower's default, the Bank has elected to exercise its option to declaze the entire unpaid principal balance of the Term Note and all accrued and unpaid uiterest to be immediately due and payable. As of October 5, 2012, there is unpaid, due and owing to the Bank under the Term Note the amount of $8,367.29. Demand is hereby made for the immediate payment in full of all amounts which are due and which may become due under the Term Note. The balance due under the Term Note may increase or decrease as a result of the receipt of payments and the proceeds of collateral securing the Term Note and floe accrual of interest, late charges, costs of collection and other fees, costs and expenses. Therefore, immediately prior to remitting payment, please contact 14ie~issa Auman at (717 412-6317 to obtain final payoff amounts and remittance. instructions. Nothing contained in this letter constitutes a waiver or release of any of the terms or provisions of the Term Note, The Demand Note or of any and all other notes, instruments or agreements between the Bank and the Borrower and/or Guarantors (the "Loan Documents'. The Batik reserves alI rights and remedies a~~ailable to it under the Loan Documents and applicable law, all of which are expressly hereby reserved. No discussions between the Bank and the Borrower and/or Guarantors concerning this notification, other loan relationships between the Bank and the Borrower and/or Guarantors, or any other matter shall imply an agreement on the part of the Bank to waive any of its rights and remedies or to forbear from taking any action authorized by the Loan Documents or applicable law, whether-or not such discussions may be continuing. . Any communications with any representative of the Bank, whether oral or v~ritten, will be mere discussions only and will not in any wa3• commit or be binding upon the Bank unless reduced to a writing signed by an authorized officer of the Bank. Such communications will not represent any course of dealing, and in no manner shall you rely in airy way on any such discussions unless such communications are reduced to a writing signed by an authorized officer of the Bank. The acceptance of any partial payment of any of the obligations of the Borrower and/or Guarantors to the Bank shall not be deemed a waiver or limitation of any of the Bank's rights reserved herein as to the full amount of any unpaid balance. Any dela}g'or forbearance by the Bank in the enforcement or pursuit of aay of its rights and remedies under the Loan Documents or applicable law shall not constitute a waiver thereof, nor shall it be a bar to the exercise of the Bank's rights or remedies at a later date. Should ybu have any questions, please do not hesitate to contact me. Sincerely, METRO BANK Melissa Auman Commercial Assei Recovery Specialist .. !_:- ~ f tte~{ffL~~~~'~r, n, Y ~ ~ ~. 4 M1 ,~ ~~ ~;'` Y~ A METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellY((a~mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce IN THE COURT OF COMMON PLEAS OF Bank/Harrisburg, N.A. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff . v. a 3 ~~il DOCKET NO. ~ °~ ` ~' DAVID J. BRINKLEY, . Defendant _ Certificate of Address I hereby certify that the Defendant maintains an address at: David J. Brinkley 1903 Princeton Avenue Camp Hill, PA 17011 Respectfully submitted, METTE, EVANS & WOODSIDE By: Heather Z. Kelly, squire I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: November 19, 2012 t ~~ ~'` ~~,`~r ~~ ~Q ~~~'`~ 1 .i,. METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkelly(a),mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce 1N THE COURT OF COMMON PLEAS OF Bank/Harrisburg, N.A. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. a_~~a3 ~~~~~1 DOCKET NO. DAVID J. BRINKLEY, Defendant . AFFIDAVIT OF NON-MILITARY SERVICE I am the attorney for Metro Bank, f/k/a Commerce Bank/Harrisburg, N.A., and according to the best of my information and belief, the Defendant is an adult individual and is not in the United States Military Service. David J. Brinkley 1903 Princeton Avenue Camp Hill, PA 17011 Respectfully submitted, METTE, EVANS & WOODSIDE By: .~. ~ ~pl~-. Heather Z. Kelly, squire I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: November 19, 2012 _i i~ ft /~ ++n+ b .~ +~ .~.,~~,.. AFp ~ j ~~s~'`~t~}~~.~f~~f~,~t' ~r METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellvna,mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff v. DAVID J. BRINKLEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. I ~' c~~~~ ~~a~ Notice Under Pa R.C.P. 2958.1 Of Judgment And Execution Thereon Notice of Defendant's Rights TO: David J. Brinkley 1903 Princeton Avenue Camp Hill, PA 17011 A judgment in the amount of $9,213.27 has been entered against you in favor of the plaintiffwithout any prior notice or hearing, based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 Respectfully submitted, METTE, EVANS & WOODSIDE By: Heather Z. Kelly, squire I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: November 19, 2012 METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellyna,mette.com Attorneys for Plaintiff`' METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff v. DAVID J. BRINKLEY, Defendant .., -~ ~ r . ~ -, ` I- r y (( ! t ~ ~,~5 YLY~~f1~A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. ,~ a' NOTICE UNDER 42 Pa. C.S.A. 2737.1 OF RIGHT TO RECOVER ATTORNEY FEES AND COSTS AND PROCEDURE TO FOLLOW TO STRIKE OFF OR OPEN A CONFESSED JUDGMENT TO: David J. Brinkley 1903 Princeton Avenue Camp Hill, PA 17011 Pursuant to 42 Pa.C.S.A. 2737.1, you are hereby notified that a debtor who has been incorrectly identified and had a confession of judgment entered against him shall be entitled to costs and reasonable attorney fees as determined by the court. Pursuant to 42 Pa.C.S.A. § 2737.1, you aze hereby notified of the instructions regazding the procedure to follow to strike off or open a confessed judgment under Pennsylvania Rule of Civil Procedure 2959, which is reproduced in full, on the following page. Respectfully submitted, METTE, EVANS & WOODSIDE By: Heather Z. Kelly, quire I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: November 19, 2012 PENNSYLVANIA RULE OF CIVIL PROCEDURE 2959 STRIKING OFF OR OPENING JUDGMENT: PLEADINGS AND PROCEDURE (a)(1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike offthe judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment. (fj The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. (g) (1) A judgment shall not be stricken or opened because of a creditor's failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g)(1) shall apply to (1) judgment entered prior to the effective date of a subdivision (g) which have not been stricken or opened as of the effective date and (2) judgment entered on or after the effective date. METRO BANK, f/k/a Commerce IN THE COURT OF COMMON PLEAS OF Bank/Harrisburg, N.A. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff . ~. a~ ~U;~ DOCKET NO. ~~(" ~/ DAVID J. BRINKLEY, . Defendant . ENTRY OF JUDGMENT Judgment has been entered against you in the amount of $9,213.27, as provided in the Note and Guaranty referenced in the Complaint plus continuing interest, attorney fees and costs. Date ~ ('~1 Prothonotary of Cumberland County ~ SEAL By: METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkelly~,mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA a~ ~i~~ DOCKET NO. ~ ~` ~ DAVID J. BRINKLEY, Defendant NOTICE OF ENTRY OF JUDGMENT TO: David J. Brinkley 1903 Princeton Avenue Camp Hill, PA 17011 You aze hereby notified pursuant to Rule 236 of the Pennsylvania Rules of Civil Procedure that Judgment has been entered against you in the amount of $9,213.27 as provided in the Note and Guazanty referenced in the Complaint plus all interest after the entry of such judgment at the rate permitted by law. Prothono of C berl ounty ~ ~a • SEAL Date By: SHERIFF'S OFFICE OF CUMBERLAND COUNTY ~, Ronny R Anderson ~ ~ ra '~~ ._.,. _~ Sheriff ., jt',1L4' 0~ 1.471f!(t.~n~,~~ . rT, r~ ~ r'~'~ qY.: Jody S Smith i~~ ~ ~ :~ ~~ LL '~ Chief Deputy c.~' ~ <~~'~ ~ --~ Richard W Stewart _ ' - c~ --r ...-~ ^'~' ~ _ = i Solicitor ~~~ - = c~* "'~ Metro Bank F/K/A Commerce Bank/Harrisburg N.A. Case Number vs. David J Brinkley 2012-7123 SHERIFF'S RETURN OF SERVICE 11/26/2012 Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: David J Brinkley, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint in Confession of Judgment as "Not Found" at 1903 Princeton Avenue, Camp Hill Borough, Camp Hill, PA 17011. Deputies were advised by current resident, Caliph White that they do not know where defendant resides. SHERIFF COST: $43.00 November 26. 2012 SO ANSWERS, RON R ANDERSON, SHERIFF