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HomeMy WebLinkAbout13-0176v° ~,i`~~r ~a3r~Q~~~TAR' IN THE COURT OF COMMON PLEAS OF ~i; ~ ~ ~l~rd 1 O F,'~ 2; 1 q CUMBERLAND COUNTY, PENNSYLVANIA`f~~~~~,~~~~N~ CQUNTY ROBERT J. MISTICK, ~c~dh1"Y~'~~r~lA Plaintiff - ~~vr~ v. DOCKET NO. THOMAS R. CARBARY JANET H. CARBARY, Defendants CIVIL ACTION -LAW NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 ~~-~asi~i AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomaz accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentaz compazecencia escrita en persona o por abogado y presentaz en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABODAGO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARR AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 Craig A. Diehl, Esquire, CPA I.D. No. 52801 LAW OFFICES OF CRAIG A. DIEHL 3464 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff, Robert J. Mistick ROBERT J. MISTICK, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. DOCKET NO. THOMAS R. CARBARY JANET H. CARBARY, Defendants CIVIL ACTION -LAW COMPLAINT Plaintiff, Robert J. Mistick, by and through his undersigned counsel, files this Complaint averring as follows: 1. Plaintiff, Robert J. Mistick, is an adult individual residing at 5420 Barbara Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050-7210. 2. Defendants, Thomas R. Carbary and Janet H. Carbary, are husband and wife, residing at 10393 Boca Raton Drive, Ellicott City, Maryland 21042-2122. 3. Plaintiff and Defendant, Thomas R. Carbary, are each Fifty Percent (50.0%) shareholders of Wholesale Lumber Services, Inc. 4. On or about April 18, 2006, Plaintiff and Defendants executed a Commercial Guaranty whereby each party individually guaranteed the payment and satisfaction of certain indebtedness of Wholesale Lumber Services, Inc. to Fulton Bank, N.A. (See Exhibit "A" attached hereto and incorporated herein for true and accurate copies of the Commercial Guarantees.) 5. Wholesale Lumber Services, Inc. ceased business operations in 2012. 6. Upon cessation of business operations, there remained an indebtedness owed by Wholesale Lumber Services, Inc. to Fulton Bank, N.A. in the amount of Fifty-Three Thousand Nine Hundred Thirty Nine Dollars and Eighty-Eight Cents ($53,939.88). 7. Fulton Bank, N.A. made demand upon Plaintiff to pay the outstanding indebtedness owed by Wholesale Lumber Services, Inc. and/or Plaintiff and Defendant pursuant to the Commercial Guaranty. 8. On or about July 21, 2012, Plaintiff paid the outstanding indebtedness owed to Fulton Bank, N.A. 9. Upon payment by Plaintiff of said amount, Fulton Bank, N.A. executed an Assignment to Plaintiff assigning, transferring and setting over unto Plaintiff all of Fulton Bank, N.A.'s right, title and interest in and to the following: a. that certain Commercial Guaranty from Thomas R. Carbary and Janet H. Carbary in favor of Fulton Bank, N.A. dated April 18, 2006; and b. that certain Line of Credit Note and Agreement dated February 25, 2000 from Wholesale Lumber Services, Inc. in favor of Fulton Bank, N.A., in the original principal amount of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00), as amended and supplemented to date. (See Exhibit "B" attached hereto and incorporated herein for a true and accurate copy of the Assignment.) 10. Despite demand made by Plaintiff upon Defendants to repay one-half (1/2) of the amount so paid, they have failed and/or refuse to do so. 11. Assignment of the Commercial Guaranty entitles Plaintiff to reimbursement of reasonable attorney fees and costs. WHEREFORE, Plaintiff respectfully requests that judgment be entered in his favor and against Defendants for the amount of Twenty-Six Thousand Nine Hundred Sixty-Nine Dollars and Ninety-Four Cents ($26,969.94) plus attorney fees, costs, and such other relief this Court deems reasonable. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: _ 1 By: Craig A. iehl, Esquire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: (717) 763-7613 Fax: (717)763-8293 Attorney for Plaintiff, Robert J. Mistick EXHIBIT "A" "00001-9701951-900200060031057• COMMERCIAL GUARANTY BOrrOW9C Wholesale Lumber Services, Inc. Lender: Fulton Bank 900 Square Street Elizabethtown Office Mount Joy. PA 17552.1918 Corporate Address One Penn Square Lancaster, PA 17602 GU8r8ntOr: Robert J. Mistick Patricia A. MlsHck 5420 Barbara Drive Mechanicsburg, PA 17050 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. Guaramor 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 Nate 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, other obligations, and liabilities of Borrower, and any present or future judgments against Borrower, future advances, loans or transactions that renew, eMend, 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 ar arising from a guaranty or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or non-negotiable instrument or writing; originated by Lender or another or others; barred or unenforceable against Borrower for any reason whatsoever; for any transactions that may be voidable for any reason Isuch as infancy, insanity, ultra vires or otherwisel; and originated then reduced or extinguished and then afterwards increased or reinstated. If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties shall be cumulative. This Guaranty shall not lunless 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. CONTpiIUING 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 alf 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 net 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. k is antkipated that fluetuatfons may occur in the aggregate amount of the Indebtedness covered by this Guaranty, and GUarsMOr specifically acknowledges and agrees that reduetlons in the amount of the Indebtedness, even to zero dollars IS0.001, prior to Guarantor's written revocation of this Guaranty shell not constitute a tsrminaton of this Guaranty. This Guaranty is bindfng upon Gwrantor and Guarantor's hsbs, sucusaora and assigns so bng as any of tiro Indebtednasa remains unpaid and even though the Indebtedness may trom time to time be zero dollars IS0.001. GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice or demand and wthout lessening Guarantor's liability under this Guaranty, from time to time: (AI 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; (el 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; ICI 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; (EI to determine how, when and what application of payments and credits shall be made on the Indebtedness; IF1 to apply such security and direct the order or manner of sale thereof, including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine; IGI to sell, transfer, assign or grant particit•ations in all or any part of the Indebtedness; and IHI to assign or transfer this Guaranty in whole or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor reprQsents and warrants to Lender that IAI 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; IBI this Guaranty is executed at Borrower's request and not at the request of Lender; ICI Guarantor has full power, right and authority to enter into this Guaranty; (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; IEI 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; IF) 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; (GI no material adverse change has occurred in Guarantor's financial condition since the date of the most recent financial statements provided to Lander and no event has occurred which may materially adversely affect Guarantor's financial condition; (HI no litigation, claim, investigation, administrative proceeding or similar action lincluding those for unpaid taxes) against Guarantor is pending or threatened; III Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and IJI 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 COMMERCIAL GUARANTY Load No: 0001-9701951-9002 (Continued) Page 2 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, GUaranlOr waives any right to require Lender IA1 to continue lending money or to extend other credit to Borrower; Iel to make any presemment, 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; (DI to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; IEI 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; IFI to pursue any other remedy within Lender's power; or (GI 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 IAI 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; Iel 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; ICI 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;. IDI any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness; IEl 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 (FI any defenses given to guarantors at law or in equity other than actual payment and performance of the Indebtedness. It 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 accountl. 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 shat! be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor, from time to time to file financing statements and continuation statements and to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty: Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's costs and expenses, including Lender's attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunctionl, 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 bs governed by federal law applicabb to Lender and, to the extant not preempted by federal kw, the laws of the Commonwealth of Pennsylvania wFthout regard to its conflicts of law provisions. This Guaranty has been accepted by Lender in the Commonwsakh 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 lincluding 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 Hihere there is more than one Boro•:~?r or Gu.•mntor, 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 lunless 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 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 COMMERCIAL GUARANTY Loan No: 0001-9701951-9002 (Continued) Page 3 No Waiver by Lender. Lender shall not 6e 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 ks successors and assigns. Waive Jury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. LIMITATIONS ON GUARANTY AMOUNT. Notwithstanding anything to the contrary set forth above, this Guaranty shall be limited to the difference between lender's total aggregate commitment to Borrower, and Borrower's year end net worth, as determined by Borrower's fiscal year end financial statement and balance sheet. Borrower's fiscal year ends December 31. If Borrower should fail to provide Lender with its year end financial statement and balance sheet within 720 days of its fiscal year end, this Guaranty shall be unlimited until such time that Borrower provides said financial statement and balance sheet. DEFINITIONS. The following capitalized wards and terms shall have the following meanings when used in this Guaranty. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the content may require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means Wholesale Lumber Services, 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 Robert J. Mistick and Patricia A. Mistick, 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 Fulton Bank, 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 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 ANO 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 I10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED- INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (55001 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 ANV 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 APRIL 18, 2006. THIS GUARANTY IS GIVEN UNDER SEAL AND R IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. X Q (Seal) Pa cis A. Mistkk USER INIO L",tlnO.VS.l.]9.99.Id Cw-N"Intl Fn~,eW SMUIbn,. ae. I9B]. SDM. MRgI,nR~rW. -MR:\VLICOBK\CR\IR\FFO.FC 111-IB91B ~~~~ '00001-9701951-900200060031057` COMMERCIAL GUARANTY BOrrOwer: Wholesale Lumber Services, Inc. L@ftd@r: Fulton Bank 900 Square Sfrsst Elizabethtown Office Mount Joy, PA 17552-1918 Corporate Address One Penn Square Lancaster, PA 17602 Guarantor: Thomas R. Carbary Janet H. Carbary 1393 Boca Raton Drive Ellicott City, MD 21042 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, other obligations, and liabilities of Borrower, and any present or future judgments against Borrower, future advances, loans or transactions that renew, eMend, modify, refinance, consolidate or substitute these debts, Liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by their terms or acceleration; absolute or contingent; liquidated or unliquidated; determined or undetermined; direct or indirect; primary or secondary in nature or arising from a guaranty or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or non-negotiable instrument or writing; originated by Lender or another or others; barred or unenforceable against Borrower for any reason whatsoever; for any transactions that may be voidable for any reason (such as infancy, insanity, ultra vires or otherwisel; and originated then reduced or extinguished and then afterwards increased or reinstated. If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties. Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties. CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORflOWER TO LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACOUIflED, 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 pertarmed 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 Guatanty 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 Guarorttors under this Guaranty. k is anticipated that fluctuations may occur in the aggregate amount of the Indebtedness covered by this Guaranty, and GUaroMOr apscificaNy acknowkMgss and agrees that reductions in the amount of tM IrMsbtednesa, even to zero dogars (50.001, prior to Guarantor's wrktsn revocation of this Guaranty shah not constitute a tsrminadon of this Guaranty. This Guaranty is bbMing upon Guarantor and Guarantor's heirs, auceeasas and aasigna so long as any of the Indebtedness romaine unpaid and even though the Indebtedness may from time to time be zero dollars (40.00). GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice or demand and without lesssnkrg Guarantor's I'mbility under this Guaranty, from time to tkns: (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; IBI 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; (CI 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; IDI 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; IE) to determine how, when and what application of payments and credits shall be made on the Indebtedness; IFI to apply such security and direct the order ar manner of sale thereof, including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine; (~I to sell, transfer, assign or grant participations in all of any part of the Indebtedness; and IHI to assign or transfer this Guaranty in whole or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that IAI no representatiuns or agreements of -any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; Iel this Guaranty is executed at Borrower's request and not at the request of Lender; ICI Guarantor has full power, right and authority to enter into this Guaranty; IDI 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 violatidn of any law, regulation, court decree or order applicable to Guarantor; IEI 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; IFI 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 pro~rided 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; IGI 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; (II Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and IJ) 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 FlNANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following COMMERCIAL GUARANTY Loan No: 0001-9701951-9002 (Continued) Page 2 Annual Statements. As soon as available, but in no event later than one-hundred-twenty (1201 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 (1201 days after the applicable filing date for the taz 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 (AI to continue lending money or to extend other credit to Borrower; IBI 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; (DI to proceed directly against or exhaust any collateral held by lender from Borrower, any other guarantor, or any other person; (EI to give notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; IFI to pursue any other remedy within Lender's power; or (GI 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 (AI 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; (CI 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; IDI an_y right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness; IE) 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 IFI 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 ar 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 accounU. 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 other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's costs and expenses, including Lender's attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings lincluding efforts to modify or vacate any automatic stay or injunctionl, 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 wNl be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonweakh of Pennsylvania without regard to its confgcts 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 lincluding 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 6ne 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 lunless 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 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 COMMERCIAL GUARANTY Loan No: 0001-9701951-9002 (Continued) Page 3 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. Succeaaors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. Waive Jury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. LIMITATIONS ON GUARANTY AMOUNT. Notwithstanding anything to the contrary set forth above, this Guaranty shall be limited to the difference between Lender's total aggregate commitment to Borrower, and Borrower's year end net worth, as determined by Borrower's fiscal year end financial statement and balance sheet. Borrower's fiscal year ends December 31. if Borrower should fail to provide Lender with its year end financial statement and balance sheet within 120 days of its fiscal year end, this Guaranty shall be unlimited until such time that Borrower provides said financial statement and balance sheet. 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 Wholesale Lumber Services, 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 Thomas R. Carbary and Janet H. Carbary, 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 Fulton Bank, 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 rwtes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY ANO ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BV LENDER RELATING TO ANV 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 (55001 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 APRIL 18, 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 ~..-- 1~.- ~~ (Beall Th a R. Carbary Signs , ackn and de' Bred is t e resenca of: X Wit s X Witness ~ ` X 6 '( (Seal) Jane .Carbary i IASFPP90 Lenb,9.VPr.S.10.00.i09 COP, HMPnt FN"„til3nlu,ien"Inc 199). 1003. 1Y N91,nll~r.d. -P~M:LL0.\COML\Cf11L0.1lM.R TP~1l013 EXHIBIT "B" ASSIGNMENT For valuable consideration, the receipt and sufficiency of which is hereby acknowledged, FULTON BANK, N.A., formerly known as Fulton Bank ("Assignor") hereby assigns, transfers and sets over unto ROBERT J. MISTICK ("Assignee") all of Assignor's right, title and interest in and to the following: 1) that certain Line of Credit Note and Agreement dated February 25, 2000, from Wholesale Lumber Services, Inc. (the "Borrower") in favor of Assignor, in the original principal amount~of $1,750,000.00, as amended and supplemented to date; 2) that certain Open-End Mortgage and Security Agreement from Robert J. Mistick and Patricia A. Mistick (the "Misticks") in favor of Assignor, dated Apri126, 2010, recorded in the Cumberland County Recorder of Deeds' Office to Instrument Number 201014664, and covering property located 5420 Barbara Drive, Hampden Township, Cumberland County, Pennsylvania; 3) that certain Commercial Guaranty from the Misticks in favor of Assignor dated April 18, 2006; 4) that certain Commercial Guaranty from the Misticks in favor of Assignor dated April 26, 2010; 5) that certain Commercial Guazanty from Thomas R. Cazbary & Janet H. Cazbary in favor of Assignor dated April 18, 2006; and 6) that certain Letter Agreement dated January 22; 2009 between Assignor and Borrower. This Assignment is made by Assignor to Assignee without recourse and without warranty of any kind, whether express or implied. WITNESS the due execution hereof the ~~~ day of ~~'~S~ 2012. ~---~. ' FULT N BANK, N.A. B ~~, ~ ~C y: Title: ~~~'~-~`~ ` J~ ~,i.~ ~~ ~ ~~a, c:~~:=. COMMONWEALTH OF PENNSYLVANIA SS: ' COUNTY OF ~,~ ~ ~'L(1 cj~j~' On this the C.~~~ay of , 2012, before me the undersigned officer personally appeared , ~ , ~ ~' who acknowledged himselfflzerse~€ to be the ~~~u~> 'J~~-~- ~ ~}- of FULTON BANK, N.A., a national banking association, and that sl3e/he as such officer, being authorized to do so, executed the foregoing Assignment for the ~pyrposes therein contai ed by signing the name of FULTON BANK, N.A. by leer-self/himself as ~"~( C' rh /0 ~f ~ L~ ~e~i~(1~ IN WITNESS WHEREOF, I hereunto set my hand and official seal. r ~ } ___.. Notary Public _ Cp1~AOM1111EALTk1 OF PENNSYLVANIA Igllt L YOtINEi NOIMy Pu~Nc lancer CIS!', L~noNbr CgrNMfr IMIt Cann~iMlon lxpirrs dune 1 ~, 2015 CERTIFICATE OF RESIDENCE OF ASSIGNEE I hereby certify that the address of the within Assignee is: By: 3101591-1 VERIFICATION I, Robert J. Mistick, Plaintiff above-named, being duly sworn according to law, deposes that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. ~ , Date: ~ " ~ - /j Ro rt J. M' 'ck 01" THE�,P�0 0N7TAiR Craig A.Diehl,Esquire 2013 AUG —7 All III 34 I.D.No.52801 LAW OFFICES OF CRAIG A.DIEHL CUMBERLAND COUNTY 3464 Trindle Road PENNSYLVANIA Camp Hill,PA 17011 Attorney for Plaintiff,Robert J.Mistick ROBERT J. MISTICK IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLANIA V. NO. 13-176 Civil THOMAS R. CARBARY JANET H. CARBARY, Defendants CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I have served a true copy of the Complaint Pursuant to Pennsylvania Rule of Civil Procedure Rule 404 upon the parties, listed below: Thomas R. Carbary, 10393 Boca Raton Drive, Ellicott City, Maryland 21042-2122, by certified, number 7009 3410 0000 8759 0511; return service card attached as Exhibit "A", and Janet Carbary, 10393 Boca Raton Drive, Ellicott City, Maryland 21042-2122, by certified, number 7009 3410 0000 8759 0504; return service card attached as Exhibit`B". Dated this 50 day of August, 2013. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: / By: Craig A. Igiehl, Esquire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: (717) 763-7613 Fax: (717) 763-8293 Attorney for Plaintiff,Robert J. Mistick EXHIBIT "A" SECTION SENDER: COMPLETE THIS SECTION COMPLETE THIS DELI VERY • Complete items 1,2,and 3.Also complete A Signatu item 4 if Restricted Delivery is desired. ❑Agent • Print your name and address on the reverse X so that we can return the card to you. ❑Addressee • Attach this card to the back of the mailpiece, e ceived by(Printed Name) Date of Delivery or on the front if space permits. t.23 I ? 1. Article Addressed to: D. Is delivery address different from item 1? ❑Yes If YES,enter delivery address below: ❑ No Thomas mas R. Carbary 10393 Boca Raton Drive Ellicott City, 41) 21042-2122 "3• Service Type Dl(Certffied Mail ❑Express Mail ❑Reg6jered ❑Return Receipt for Merchandise ' ❑Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number (Transfer from service iabeq '70 0 9 3410 0 0 00 87811 0 511," PS Form 3811,February 2004 Domestic Return Receipt _ 102595-02-M-1540 EXHIBIT `B " SENDER: COMPLETE THIS SECTION COMPLETETHIS SECT101V ON DELIVERY ■ Complete items 1,2,and 3.Also complete A Signature item 4 if Restricted Delivery is desired. /�• Print your name and address on the reverse X l� ❑Agent so that we can return the card to you. ❑Addressee • Attach this card to the back of the mailpiece, B. Received by(Printed Name) C. Date of Del' or on the front if space permits. _ 3_v I. Article Addressed to: D. Is delivery address different from item I? ❑Yes If YES,enter delivery address below: ❑ No Janet-Carbary 10393 Boca Raton Drive j Ellicott City, MD 21042-2122 3. Service Type '(Certified Mail ❑ Express Mail -- ----- ❑Registered ❑Return Receipt for Merchandise ❑Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) 2. Article Number 13 Yes (Transfer from service label) _ —,. - - Y- e— --:; ,-- ——- PS Form 3811,February 2004 7 Domestic Retur d 0000 $7 5 9 11504 - -- 102595.02-M-1540 c� IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT J. MISTICK -- ! : Plaintiff NO. 2013-CV-0176 Civil = -- c� V. THOMAS R. CARBARY .JANET H. CARBARY, Defendants CIVIL ACTION- LAW PRAECIPE FOR DEFAULT JUDGMENT TO: Prothonotary of Cumberland County Please enter judgment in favor of Plaintiff and against Defendants above-named for want of an answer, and assess Plaintiff's damages as follows: 1• Amount claimed in Plaintiff's Complaint: a. Principal Balance $ 26,969.94 d. Attorney's Fees 1,000.00 2• Costs Subtotal $ 27,969.94 117.35 TOTAL $ 282087.29 _ It is certified that a written notice of intention to file this Praecipe was mailed to Defendants against whom judgment is to be entered,if any, after the default occurred and at least ten(10)days prior to the date of the filing of this Praecipe. (A true and correct copy of the Notice is attached hereto as Exhibit "A.") LAW OFFICES OF CRAIG A. DIEHL Date: 3 B 0/J By: Crehl �f✓(< aig 11i , Esquire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011 (717)763-7613 Counsel for Plaintiff EXHIBIT "A" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT J. MISTICK, ; Plaintiff NO. 13-176 Civil V. THOMAS R. CARBARY, JANET H. CARBARY, Defendants CIVIL ACTION—LAW DATE OF NOTICE: June 4, 2013 To: Janet H. Carbary 10393 Boca Raton Drive - Ellicott City, MD 21042 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE COMPLAINT SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 LAW OFFICES OF CRAIG A. DIEHL Date: (� 1. By: Craig Diehl, squire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: 717-763-7613 Fax: 717-763-8293 Counsel for Plaintiff AUG, 7. 2013 4:32PM CRAIG A DIEHL ESQ, N0, 5$20 P. 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT Y9 PENNSYLVANIA ROBERT J. MISTICK, Plaintiff NO, 13-176 Civil V. THOMAS R. CARBARY, JANET H. CARBARY, Defendants CIVIL ACTION—LAW DATE OF NOTICE: June 4, 2013 To: Thomas R. Carbary 10393 Boca Raton Drive Ellicott City,MD 21042 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE COMPLAINT SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN(10)DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS, YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE,PA 17013 1-800-990-9108 717-249-3166 LAW OFFICES OF CRAIG A.DIE14L Date: ! By: �� Craig A iehl,Esquire Attorney I.D.No. 52801 3464 Trindle Road Camp Hill,PA 17011 Tel: 717-763-7613 Fax: '717-763-8293 Counsel for Plaintiff