Loading...
HomeMy WebLinkAbout13-5206 THE P RO T;iON0 " t' 20QSEP--4 AM l i= CUMBERLAND COO - PENNSYLV HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042 -1140 (717) 274 -3644 METRO BANK f %k/a COMMERCE IN THE COURT OF COMMON PLEAS BANK/ HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs.. No. 13- 5,90(0 CiViITerm GINGERBREAD MAN, INC., Defendant CONFESSION OF JUDGMENT Pursuant to the authority contained in the Warrant of Attorney, a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against Defendant as follows: Principal Sum Due - $ 91,163.73 Interest to 8/17/2013 - 565.75 Late Fees 8/17/2013 - 1,536.39 Attorney's Commission (10% of unpaid principal and interest) - 9,172.95 Total - $ 102,438.82 Plus all future accruing interest after August 17, 2013 and after entry of judgment until paid in full at the:contract rate ($16.173862 per diem), additional late fees as may �4lo,00 PD UTV q5 03 IVO - Fce It 13i (eec� accrue after August 17, 2013 at the contract rate, costs of maintaining and preserving Plaintiff's collateral, additional and reasonable attorney's fees as may be incurred and costs of suit. HEW VE LLP By: SS I.D. #55774 Attorney for Defendant Prothonotary I I 2 HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 : Lebanon, PA 17042 -1140 (717) 274 -3644 METRO BANK f /k/a COMMERCE IN THE COURT OF COMMON PLEAS BANK / HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. No. GINGERBREAD' MAN, INC., Defendant COMPLAINT CONFESSION OF JUDGMENT Plaintiff files this Complaint pursuant to Pa. R.C.P. No. 2951(b) for judgment by confession and avers the following: 1. The Plaintiff is Metro Bank f /k/a Commerce Bank / Harrisburg, N.A., with an office located at 3801 Paxton Street, Harrisburg, Pennsylvania 17111. 2. The Defendant is Gingerbread Man, Inc., a Pennsylvania corporation with a last known business address of 114 East Allen Street, Mechanicsburg, Cumberland County, Pennsylvania 17055 and c/o Richard E. Phelan, President, at 735 South Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013. 3. Attached hereto as Exhibit "A" is a true and correct copy of the Promissory Note in the original principal amount of One Hundred Fifty Thousand Dollars ($150,000.00) dated, executed and delivered by Defendant to Plaintiff on or about January 4, 2007 (the "Promissory Note ") and a Change in Terms Agreement in the amount of Two Hundred Twenty -Five Thousand Dollars ($225,000.00) dated, executed and delivered by Defendant to Plaintiff on or about June 21, 2007 (the "Change in Terms Agreement "), Exhibit "B ". The Change in Terms Agreement and Promissory Note shall hereinafter collectively be referred to as the "Note" upon which judgment is being confessed herein. 4. The Note has not been assigned. 5. Judgment has not been entered on the Note in any jurisdiction. 6. Default was made by the Defendant in its failure to make the payment of the installment due o'n the Note on July 4, 2013, as well as in its failure to meet demand for payment in full of the same, whereby the entire sum is in default and immediately due and payable. 7. As a consequence of the foregoing and pursuant to the Warrant of Attorney in the Note, Defendant is liable to Plaintiff as follows: Principal Sum Due - $ 91,163.73 Interest to 8/17/2013 - 565.75 Late Fees 8/17/2013 - 1,536.39 Attorney's Commission (10% of unpaid principal 'and interest) - 9,172.95 Total - $ 102,438.82 Plus all future accruing interest after August 17, 2013 and after entry of judgment until paid in full at the contract rate ($16.173862 per diem), additional late fees as may - 2 - 4 accrue after August 17, 2013 at the contract rate, costs of maintaining and preserving Plaintiff's collateral, additional and reasonable attorney's fees as may be incurred and costs of suit. 8. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. WHEREFORE, Plaintiff demands judgment in the sum of: Principal Sum Due - $ 91,163.73 Interest to 8/17/2013 - 565.75 Late Fees 8/17/2013 - 1,536.39 Attorney's Commission (10% of unpaid principal and interest) - 9,172.95 Total - $ 102,438.82 Plus all future accruing interest after August 17, 2013 and after entry of judgment until paid in full at the,contract rate ($16.173862 per diem), additional late fees as may accrue after August 17, 2013 at the contract rate, costs of maintaining and preserving Plaintiff's collateral, additional and reasonable attorney's fees as may be incurred and costs of suit, as authorized by the Warrant of Attorney appearing in the Note. HEN V LLP By: ARC H SS I.D. #55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042 -1140 (717) 274 -3644 Attorney for Plaintiff - 3 - E ' ) PROMISSORY NOTE F y _. ::.;;;:;:::; Coll......__ ...:.::.:::::::::_ AOGOU...._.............._.... Q..... C......::: ..:- ..::::::.............:_.... LDa :......::.::E.o 11._4 t ..................._....... ..... 1..._..._... ...._:...:.:................::. Pr nci . a .............................o . :: ....... ......2........................ Y................................................................................ ............................... ................ f..:...... p ..................................................................................................:.:..:.........:....:......................................................................................................:...................................................................................:. :........... ............... .......:........,............: _:::-::::::::::::::.-::::::::::::::::::::::.::....................... ,.. ::::: :::::::: r: ......... U. t .....:....................... . . .007::.; . 0< E:- U. 4- 2f3.: 7: 7.::::::::::::::: 45.. 8.$.:::::::::::::::::.:::::.:-.::::::::..:..:.:.................:.............................. ............................... . _._ ...............,U... x..(70.............. References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing " • • •" has been omitted due to text length limitations. Borrower: Gingerbread Man, Inc Lender: COMMERCE BANK /HARRISBURG N.A. 114 East Allen Street COMMERCIAL BUSINESS DEPARTMENT Mechanicsburg, PA 17055 3801 PAXTON STREET HARRISBURG, PA 17111 (717) 975 -5630 Principal Amount: $150,000.00 Date of Note: January 4, 2007 PROMISE TO PAY. Gingerbread Man, Inc ( "Borrower ") promises to pay to COMMERCE BANK /HARRISBURG N.A. ( "Lender "), or order, in lawful money of the United States of America, the principal amount of One Hundred Fifty Thousand & 001100 Dollars ($150,000.00), together with interest on the unpaid principal balance from January 4, 2007, until paid in full. PAYMENT. Subject to any payment changes resulting from changes in the Index, Borrower will pay this loan in accordance with the following payment schedule: 60 monthly consecutive principal and interest payments in the initial amount of $1,793.66 each, beginning February 4, 2007, with interest calculated on the unpaid principal balances at an interest rate of 7.560% per annum; 59 monthly consecutive principal and interest payments in the initial amount of $1,867.35 each, beginning February 4, 2012, with interest calculated on the unpaid principal balances at an interest rate based on the Prime Rate as published in the Money Rate Section of the Wall Street Journal. If a range of rates is published, the highest will be used. (currently 8.250 %), plus a margin of 1.000 percentage points, resulting in an initial interest rate of 9.250 %; and one principal and interest payment of $1,867.01 on January 4, 2017, with interest calculated on the unpaid principal balances at an interest rate based on the Prime Rate as published in the Money Rate Section of the Wall Street Journal. If a range of rates is published, the highest will be used. (currently 8.250 %), plus a margin of 1.000 percentage points, resulting in an initial interest rate of 9.250 %. This estimated final payment is based on the assumption that all payments will be made exactly as scheduled and that the Index does not change; the actual final payment will be for all principal and accrued interest not yet paid, together with any other unpaid amounts under this Note. Unless otherwise agreed or required by applicable law, .payments will be applied first to any accrued unpaid interest; then to principal; then to any unpaid collection costs; and then to any late charges.. The annual interest rate for this Note is computed on a 365/360 basis; that is, by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. VARIABLE INTEREST RATE. The interest - rate on this Note is subject to change from time to time based on changes in an independent index which is the Prime Rate as published in the Money Rate Section of the Wall Street Journal. If a range of rates is published, the highest will be used. (the "Index "). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notifying Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each daily. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 8.250% per annum. The interest rate or rates to be applied to the unpaid principal balance during this Note will be the rate or rates set forth herein in the "Payment" section. Notwithstanding any other provision of this Note, after the j first payment stream, the interest rate for each subsequent payment stream will be effective as of the last payment date of the just- ending payment stream. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. Whenever increases occur in the interest rate, Lender, at its option, may do one or more of the following: (A) increase Borrower's payments to ensure Borrower's loan will pay off by its original final maturity date, (B) increase Borrower's payments to cover accruing interest, (C) increase the number of Borrower's payments, and (D) continue Borrower's payments at the same amount and increase Borrower's final payment. PREPAYMENT PENALTY. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Upon prepayment of this Note, Lender is entitled to the following prepayment penalty: Prepayment of any amount of the principal sum shall be subject to a penalty charge of 5% during the first year of amortization and declining 1% per year thereafter to par. Except for the foregoing, Borrower may pay all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, early payments will reduce the principal balance due and may result in Borrower's making fewer payments. Borrower agrees not to send Lender payments marked "paid in full ", "without recourse ", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: COMMERCE BANK /HARRISBURG N.A., LOAN SERVICING, PO BOX 4999 HARRISBURG, PA 17111-0999. LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by adding a 2.000 percentage point margin ( "Default Rate Margin "1. The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had there been no default. After maturity, or after this Note would have matured had there been no default, the Default Rate Margin will continue to apply to the final interest rate described in this Note. If judgment is entered in connection with this Note, interest will continue to accrue after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. DEFAULT. Each of the following shall constitute an event of default ( "Event of Default ") under this Note: Payment Default. Borrower fails to make any payment when due under this Note. Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false EXHIBIT PROMISSORY NOTE Loan No: 3452788 (Continued) Page 2 or misleading at any time thereafter. Insolvency. The dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self -help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. Change In Ownership. Any change in ownership of twenty -five percent (25 %) or more of the common stock of Borrower. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired. Insecurity. Lender in good faith believes itself insecure. Cure Provisions. If any default, other than a default in payment is curable and if Borrower has not been given a notice of a breach of the same provision of this Note within the preceding twelve (12) months, it may be cured if Borrower, after receiving written notice from Lender demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) if the cure requires more than fifteen (15) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Note has been accepted by Lender in the Commonwealth of Pennsylvania. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts. COLLATERAL. Borrower acknowledges this Note is secured by A first lien priority security interest in all business assets, including Liquor License Number R18753 and a pledge of 10,000 shares of Gingerbread Man, Inc. corporate stock. POST CLOSING COMPLIANCE. Borrower agrees to execute, re- execute, cause a Guarantor(s) or other third party(ies) involved in the loan transaction to execute and /or re- execute and to deliver to Lender or its legal counsel, as may be deemed appropriate, any document or instrument signed in connection with the Loan which was incorrectly drafted and /or signed, as well as any document or instrument which should have been signed at or prior to the closing of the Loan, but which was not so signed and delivered. Borrower agrees to comply with any written request by Lender within ten (10) days after receipt by Borrower of such request. Failure to Borrower to so comply shall, at the option of Lender, upon notice to Borrower, constitute an event of default under the Loan. OPTION TO DECLARE LOAN DUE. Although the repayment of the loan evidenced by this instrument has been designed as if it were to extend for the term established in the "Payment" section, hereinabove outlined, Borrower understands that Lender expressly reserves the right and option, exercisable at its discretion, to declare the entire unpaid principal balance under this Promissory Note together with all interest which shall have accrued thereon to be due and payable on the fifth (5th) anniversary of the date of this Promissory Note and on each succeeding Five 15) year anniversary of that date during the term hereof, hereinafter referred to as "Loan Call Date ". In the event that Lender desires to exercise its option to declare the Loan due, it shall deliver written notice thereof by regular first class mail to Borrower's last known address 90 days prior to the Loan Call Date. In the event that Lender desires to exercise its option to declare the Loan due, it shall deliver written notice thereof by hand delivery, nationally recognized overnight courier or regular first class mail to Borrower's last known address at least 90 days prior to the Loan Call Date. Borrower shall, on or before the Loan Call Date immediately following such notice, repay the entire principal balance due under the Promissory Note together with all unpaid interest which shall have accrued thereon as well as any other sums which may then be due under the Promissory Note or any other document constituting a part of the within loan transaction. Notice provided by first class mail to Borrower's Iasi known address shall be deemed to have been delivered when deposited in the mail. REQUIRED DEPOSIT ACCOUNT. All deposit accounts of Borrower and Guarantor to be maintained with Commerce Bank. NEGOTIATE NEW FIXED RATE. Upon expiration of initial Fixed Rate period Borrower shall have the option to elect a new fixed rate as offered by Lender, if a new fixed rate is not negotiated interest rate shall be the New York Prime plus 1 .00% to float. COMMITMENT LETTER COMPLIANCE.. This loan is contingent upon Borrower's compliance with all of the terms and conditions in the commitment letter issued by Lender to Borrower on or about December 26, 2006. Upon breach of any term of condition therein Lender shall have the right to declare this loan in default and demand payment in full of the principal balance remaining unpaid, together with all interest, which shall have accrued thereon. COLLATERALIZED /CROSS DEFAULTED. Thi n is Cross Collateralized /Cross Defaulted with ali ';r loans for Borrower and Guarantors. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower. and uoon Borrower's heirs. oersonal'reoresentatives. i PROMISSORY NOTE Loan No: 3452788 (Continued) Page 3 successors and assigns, and shall inure to the benefit of Lender and its successors and assigns. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if we report any inaccurate information about your account(s) to a consumer reporting agency. Your written notice describing the specific inaccuracy(ies) should be sent to us at the following address: COMMERCE BANK /HARRISBURG N.A. LOAN SERVICING 3801 PAXTON STREET HARRISBURG, PA 17111. GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10 %) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFF!C!ENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A R , SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: GINGERBREAD MAN INC C'h/(� By: ' ' (Seal{ (Seal) By .' Lindh L. Phelan, President of Gingerbread Man, Inc Richard E. Phelan, Treasurer /Secretary of Gingerbread Man, Inc LASER PRO Len 9, — 5.99 -MO C., R I-d Fwe ;c S-6.... In 1991. 2007 - AP ft­ Rvea— - PA MA-N.PP 1L-- CFI%LPL%O20.FC TA-21118 PR -19 DISCLO'' JRE FOR CONFESSION OF J: JIGMENT PrnctE:::. :l<on:D�te:;::;: M�turlt : l t� rr:ln .............. OaII° -jr. ... :At<ourtt:.:::.::::. t?f#i cer::::.> .:rikttal§ P ..:........::..:.::::.......:.....:.::..:.:.:.::..::.::::::...:::::........::......... Y........................................................................................ t................................................................................................................. ............................... ... . Q Of}'` n't. .4`2. ".. ; ...::._..<_: »:;;;;`: >.':: > '> »: ` >a >a >s» s »> ><s »> : » » >`» »;'" :`` >` >'a » >a ....> >.... » > >i ......... Q07... 07 Q4. 207.7......... 34x2. 788 ........::::::.:.::....:.:. . ... :.:.:� 1:Q1 :.: ..... . _ ._ ..._ ......._ References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing "* * *" has been omitted due to text length limitations. Declarant: Gingerbread Man, Inc ( Lender: COMMERCE BANK /HARRISBURG N.A. 114 East Allen Street COMMERCIAL BUSINESS DEPARTMENT Mechanicsburg, PA 17055 3801 PAXTON STREET HARRISBURG, PA 17111 (717) 975 -5630 DISCLOSURE FOR CONFESSION OF JUDGMENT THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS DAY OF �J 20 C�p A PROMISSORY NOTE FOR $150,000.00 OBLIGATING DECLARANT TO REPAY THAT AMOUNT. A. THE UNDERSIGNED UNDERSTANDS THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST DECLARANT IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO DECLARANT AND WITHOUT OFFERING DECLARANT AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST DECLARANT UNDER THE NOTE, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING JUDGMENT GAST DECLARANT BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INITIALS: :" B. THE UNDERSIGNED FURTHER UNDERSTANDS THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST DECLARANT WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER.ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING DECLARANT'S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN ANY MAN NERf MI ED APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING DECLARANT ANY ADVANCE NOTICE. INITIALS: `. >.... > C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, THE UNDERSIGNED REPRESENTS THAT: INITIALS 1. DECLARANT WAS REPRESENTED BY DECLARANT'S OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE NOTE. W 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE TO DECLARANT'S ATTENTION. THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. DECLARANT: GIN ERBREAD MAN, INC Linda L. Phelan, President of of Gingerbread Man, Inc Richard E. Phelan, Treasurer /Secretary of Gingerbread Man, Inc I i r �,,HANGE IN TERMS AGREEMENT .. P .:.....:. .:.:........................... Maiurtt Loat1 No n .................. .. : ... .:......... :: 5225 l.i✓on:.::;:3iu. >::... Accoun# 03ficr ...:1rai rta s 0.4.:. 2`7 • .::... . _ ..._..... 201.7. :.345: References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing "• • " has been omitted due to text length limitations. Borrower: Gingerbread Man, Inc Lender: COMMERCE BANK /HARRISBURG N.A. 114 East Allen Street COMMERCIAL BUSINESS DEPARTMENT Mechanicsburg, PA 17055 3801 PAXTON STREET HARRISBURG, PA 17111 (717) 975 -5630 Principal Amount: $225,000.00 Date of Agreement: June 21, 2007 DESCRIPTION OF CHANGE IN TERMS. To increase the loan amount from $150,000.00 to $225,000.00 and add Phelaro, Inc. ( "Guarantor") as a Corporate Guarantor. Concurrent with the signing of this Agreement, the Guarantor shall execute a Guaranty Agreement and related documents, as required by Bank. PAYMENT. Borrower will pay this loan in accordance with the following payment schedule: 55 monthly consecutive principal and interest payments in the initial amount of $2,769.26_ each, beginning July 4, 2007, with interest calculated on the unpaid principal balances at an interest rate of 7.560% per annum; 59 monthly consecutive principal and interest payments in the initial amount of $2,883.01 each, beginning February 4, 2012, with interest calculated on the unpaid principal balances at an interest rate based on the Prime Rate as published in the Money Rate Section of the Wall Street Journal (currently 8.250 %), plus a margin of 1.000 percentage points, resulting in an initial interest rate of 9.250 %; and one principal and interest payment of $2,882.96 on January 4, 2017, with interest calculated on the unpaid principal balances at an interest rate based on the Prime Rate as published in the Money Rate - Section -of the -Wall Street - Journal (currently 8.250 %), plus a margin of 1.000 percentage points, resulting in an initial interest rate of 9.250 %. This estimated final payment is based on the assumption that all payments will be made exactly as scheduled and that the Index does not change; the actual final payment will be for all principal and accrued interest not yet paid, together with any other unpaid amounts on this loan. VARIABLE INTEREST RATE. The interest rate on this loan is subject to change from time to time based on changes in an independent index which is the Prime Rate as published in the Money Rate Section of the Wall Street Journal (the "Index "). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notifying Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each daily. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 8.250% per annum. The interest rate or rates to be applied to the unpaid principal balance during this loan will be the rate or rates set forth herein in the "Payment" section. Notwithstanding any other provision of this Agreement, after the first payment stream, the interest rate for each subsequent payment stream will be effective as of the last payment date of the just- ending payment stream. NOTICE: Under no circumstances will the interest rate on this loan be more than the maximum rate allowed by applicable law. Whenever increases occur in the interest rate, Lender, at its option, may do one or more of the following: (A) increase Borrower's payments to ensure Borrower's loan will pay off by its original final maturity date, IB) increase Borrower's payments to cover accruing interest, (C) increase the number of Borrower's payments, and (D) continue Borrower's payments at the same amount and increase Borrower's final payment. CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of the original obligation or obligations, including all agreements evidenced or securing the obligation(s), remain unchanged and in full force and effect. Consent by Lender to this Agreement does not waive Lender's right to strict performance of the obligation(s) as changed, nor obligate Lender to make any future change in terms. Nothing in this Agreement will constitute a satisfaction of the obligation(s). It is the intention of Lender to retain as liable parties all makers and endorsers of the original obligation(s), including accommodation parties, unless a party is expressly released by Lender in writing. Any maker or endorser, including accommodation makers, will not be released by virtue of this Agreement. If any person who signed the original obligation does not sign this Agreement below, then all persons signing below acknowledge that this Agreement is given conditionally, based on the representation to Lender that the non - signing party consents to the changes and provisions of this Agreement or otherwise will not be released by it. This waiver applies not only to any initial extension, modification or release, but also to all such subsequent actions. THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE AGREEMENT. BORROWER: GINGERBREAD M N, INC �) 1 ' ey: �. !' t 'C� (Seal) BY J�t?�s`�J (Seal) Lin a L. Phelan, President of Ginger read Man, Inc Richard E. Phelan, Treasurer /Secretary of Gingerbread Man, Inc 115 (5 -0 L Ve, 5.]6 00.Ob Cep.. Ne•I. +d fne 1 Spl„Ik.n,. Inc tee E 2W7. an 5:pn ,Pee "veE. p51LW+IN\Cf1 TP.11 T1[ vPIE 2 ti 4 • � /� EXHIBIT bV� � ILE D -01 Fj�; } 2013 SEP --4 PM f: 0'3 CUMBERLAND COUNT PENNSYLVANIA HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042 -1140 (717) 274 -3644 METRO BANK f /k/a COMMERCE IN THE COURT OF COMMON PLEAS BANK/ HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. No. l3 -5o`t Cj(v C.iv�1�C GINGERBREAD MAN, INC., Defendant AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA: ss. COUNTY OF DAUPHIN David M. Chajkowski, Vice President, of Metro Bank, being duly sworn according to law, deposes and says that he has authority to sign this Affidavit on behalf of Metro Bank and that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and that the copies of the Promissory Note, Exhibit "A ", and Change in Terms Agreement, Exhibit "B", attached to the Complaint, are true and correct copies of the originals which are held in the files of the Plaintiff and which were executed and delivered by the Defendant to Plaintiff. METRO BANK By: �e /� David M. Chajkowski Vice President i Sworn to and subscribed to before me this A� day of' Af jnWr , 2013. COMMONWEALTH OF PENNSYLVANIA Notarial Seal Rachel Solomon, Notary Public Swatara soon Dauphin County my comm Expires FrD. 7 2016 MEMBER, PENNSYLVANIA ASSOCIATION OF NOTARIES *Noa i i i i - 2 - PLED - O f ift,ti cif ?IiE I?� OTHOI QT i 21 SEP -4 Pit 1�: 013 CUMBERLAND COUNTY PENNSYLVANIA HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street. P.O. Box 1140 Lebanon, PA 17042 -1140 (717) 274 -3644 PLEAS METRO BANK f /k/a COMMERCE CUMBERL COUN OMM OE PENNSYLVANIA BANK / HARRISBURG, N , Plaintiff :CIVIL ACTION -LAW vs.:. No. Is- 6a-06 e-ou GINGERBREAD; MAN, INC., i Defendant AFFIDAVIT AS TO NON - MILITARY SERVICE AND CERTIFICATION OF LAST KNOWN ADDRESS OF DEFENDANT AND PLAINTIFF COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF DAUPHIN i Before me the undersigned authority, personally appeared David M. Chajkowski, Vice President, of Metro Bank, who being duly sworn according to law, deposes and says that upon reasonable investigation to the best of his knowledge and belief the Defendant is not in the active Military or Naval Service of the United States of America and that the last known addresses of said Defendant areas follows: 114 East Allen I Street, Mechanicsburg, Pennsylvania 17055 and c/o Richard E. Phelan, President, 735 South Hanover Street, Carlisle, Pennsylvania 17013. The address of the above Plaintiff is 3801 Paxton. Street, Harrisburg, Pennsylvania 17111. METRO BANK By: l/ David M. Chajkowski Vice President Sworn to and subscribed to before me this 2�d�'! day of A1,I�il�,i1' 2013. COMMONWEALTH OF PENNSYLVANIA Notarial Seal Rachel Solomon, Notary Public Swatara Twp., Dauphin County My Commission Expires Feb. 7, 2016 MEMBER PENNSYMNIA ASSOCIATION p' NQTANIES *otaryy P lic i — 2 — OFFICE OF THE PROTHONOTARY - w COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TO: Gingerbread Man, Inc. ° ,. 114 East Allen Street"' Mechanicsburg, PA 17055+ --t f METRO BANK f /k/a COMMERCE IN THE COURT OF COMMON PLEAS _ BANK/ HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW � VS." No. 13 �a0(o iv►1 T£?� �" GINGERBREAD MAN, INC., Defendant I NOTICE Pursuant to Pa.R.C.P. Rule 236 please be advised that judgment by confession in the above proceeding was entered against you on , 2013, in the amount of: Principal Sum Due - $ 91,163.73 Interest to 8/17/2013 - 565.75 Late Fees 8/17/2013 - 1,536.39 Attorney's Commission (10% of unpaid principal and interest) - 9,172.95 Total - $ 102,438.82 Plus all future accruing interest after August 17, 2013 and after entry of judgment until paid in full at the'contract rate ($16.173862 per diem), additional late fees as may accrue after August 17, 2013 at the contract rate, costs of maintaining and preserving Plaintiff's collateral, additional and reasonable attorney's fees as may be incurred and costs of suit. Copies of all documents filed area the er. Prothonotary t OFFICE OF THE PROTHONOTARY'- COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TO: Gingerbread Man Inc. ° ` 7 - - C/o Richard E. Phelan, President - � Cn 735 South Hanover Street Carlisle, PA 17013 METRO BANK f /k/a COMMERCE IN THE COURT OF COMMON PLEAS BANK / HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs: No. 13 5oMa GINGERBREAD MAN, INC., Defendant NOTICE Pursuant:to Pa.R.C.P. Rule 236 please be advised that judgment by confession in the above proceeding was entered against you on t , 2013, in the amount of: Principal Sum Due - $ 91,163.73 Interest to 8/17/2013 - 565.75 Late Fees 8/17/2013 - 1,536.39 Attorney's Commission (10% of unpaid principal and interest) - 9,172.95 Total - $ 102,438.82 Plus all future accruing interest after August 17, 2013 and after entry of judgment until paid in full at the` contract rate ($16.173862 per diem), additional late fees as may accrue after August 17, 2013 at the contract rate, costs of maintaining and preserving Plaintiff's collateral, additional and reasonable attorney's fees as may be incurred and costs of suit. Copies of all documents filed are ache here 4 Prothonotary f r� rnC 7 rn- Fri M r !B CD -`` 4L 1 . HENRY & BEAVER LLP= c�1` 3 By: Marc A. Hess c Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042 -1140 (717) 274 -3644 METRO BANK f /k/a COMMERCE IN THE COURT OF COMMON PLEAS BANK / HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. No. 13- _x:jSp(4 (21vt 1 Town GINGERBREAD MAN, INC., Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF SAID COUNTY: Sir, please enter the appearance of Marc A. Hess, of the law firm of Henry & Beaver LLP, whose address is 937 Willow Street, P.O. Box 1140, Lebanon, Pennsylvania 17042 -1140 as attorney for Metro Bank, the Plaintiff in the above - captioned case. Dated: , 2013 no ARC A. HESS . D. #55774 Attorney for Plaintiff I HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 METRO BANK Vida COMMERCE BANK / HARRISBURG, N.A., Plaintiff VS. GINGERBREAD MAN, INC., Defendant TO THE PROTHONOTARY: Cdr. THE PROH7I:ONO7Ail' 2014 APR -2 14 CUMBERLAND COU PENNSYLVANTY NIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW : No. 13-5206 Civil Term PRAECIPE Please satisfy the Confessed Judgment entered to the above term and action number. HEN By: LP AR A. I.D. #55774 Attorney for Plaintiff