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HomeMy WebLinkAbout14-3664 FAF1LES\Clients\11527 CCED\11527.14 Cumberland Fulfillment\l 1527.14.com.confl.wpd Christopher E. Rice, Esquire ' '? Attorney I.D. No. 90916 r- Y i f" 0 11 A , Seth T. M uire Attorney I D No. 203046 L `� 4 j% ! PM J: 114 MARTSON LAW OFFICES 1 #t Ei�L�"� t� � 10 East High Street p�'�'+ ��=L4�A���,^� Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CUMBERLAND AREA ECONOMIC : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. (,f : NO. 2014 - �j 1 CIVIL TERM CUMBERLAND FULFILLMENT, LLC, ROBERT F. COSTELLO, and JANICE M. COSTELLO, Defendants CONFESSION OF JUDGMENT Pursuant to the authority contained in the Note and Guaranty attached as Exhibits "A" and "B" to the Complaint filed in the above-captioned case, we appear for Defendants Cumberland Fulfillment, LLC, Robert F. Costello, and Janice M. Costello and confess judgment in favor of Cumberland Area Economic Development Corporation against Cumberland Fulfillment, LLC, Robert F. Costello, and Janice M. Costello as of June 6, 2014, as follows: Principal $12,185.73 Late Fees $ 566.00 Interest (through 6/6/2014) $ 395.67 Costs of Suit(estimated) $ 500.00 Attorney Fees $ 2,000.00 Total: $15,647.40* *Plus interest per diem at$1.66,along with additional costs and fees incurred, until paid in full. Respectfully submitted: MARTSON LAW OFFICES By: U, Christopher E. Rice, Esquir Attorney I.D. No. 90916 61 Seth T. Mosebey, Esquire rJA Attorney I.D. No. 203046 -(yy 10 East High Street Carlisle, PA 17013 (717) 243-3341 i -1 ^l r---•r,r- Christopher E. Rice, Esquire Attorney I.D. No. 90916 3): ,� Seth T. Mosebey, Esquire 17 P11 Attorney I.D. No. 203046 CIJN,SIRLAND GOUT,T y MARTSON LAW OFFICES PEI,'NSYLV( NIA 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CUMBERLAND AREA ECONOMIC : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2014 - L36 4 CIVIL TERM CUMBERLAND FULFILLMENT, LLC, ROBERT F. COSTELLO, and JANICE M. COSTELLO, Defendants COMPLAINT FOR CONFESSION OF JUDGMENT Cumberland'Area Economic Development Corporation, by and through its undersigned counsel, hereby files this Complaint for Confession of Judgment pursuant to Pa. R.C.P. Rule 2951 et seq., and in support thereof, avers the following: 1. Cumberland Area Economic Development Corporation("Plaintiff')is a Pennsylvania corporation located at 53 West South Street, Suite 1, Carlisle, Pennsylvania 17013. 2. Defendant Cumberland Fulfillment,LLC,is a Pennsylvania limited liability company with a registered address of 507 North York Street, Suite 2c, Mechanicsburg,Pennsylvania 17055. 3. Defendant Robert F.Costello is an adult individual with a last known address of 307 Mercury Drive, Mechanicsburg, Pennsylvania 17050. 4. Defendant Janice M.Costello is an adult individual with a last known address of 307 Mercury Drive, Mechanicsburg, Pennsylvania 17050. 5. On or about April 7,2011,Defendant Cumberland Fulfillment,LLC,executed various loan documents, including a Note in the principal amount of$20,000.00, in favor of Plaintiff and, among other things,agreed to make monthly payments of$377.33,with the entire remaining principal balance and any outstanding interest due on or before April,2016. A true and correct copy of the Note is attached hereto and 'incorporated herein as Exhibit "A." 6. On or about April 15,2011,Defendants Robert F.Costello and Janice M.Costello each executed a Guaranty,and Surety Agreement and agreed to,among other things,guarantee full payment and satisfaction of all of Defendant Cumberland Fulfillment, LLC's indebtedness to Plaintiff (collectively, the "Guaranty"). True and correct copies of the Guaranty and Surety Agreements are attached hereto as Exhibit `B" and are incorporated herein by reference. 7. Defendant Cumberland Fulfillment, LLC, has defaulted under the Note, by and including, but not limited to, failing to make payments as required under the Note (the"Events of Default"). 8. The Note and Guaranty provide that Plaintiff,after any of the Events of Default have occurred, may confess judgment against Defendants for all sums due and owing thereunder. 9. The total sum due and owing under the Note as of June 6, 2014, is itemized as follows: Principal $12,185.73 Late Fees $ 566.00 Interest (through 6/6/2014) $ 395.67 Costs of Suit (estimated) $ 500.00 Attorney Fees $ 2,000.00 Total: $15,647.40* *Plus interest per diem at$1.66, along with additional costs and fees incurred,until paid in full. 10. All conditions precedent have been satisfied to allow Plaintiff to confess judgment against Defendants under the Note and Guaranty. 11. Judgment has not been confessed against Defendants in any other jurisdiction under the Note or Guaranty. 12. Plaintiff is the holder of the Note and Guaranty. 13. The Note and Guaranty were executed and delivered in connection with a commercial transaction, and judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 14. The Note and Guaranty have not been assigned. WHEREFORE, Cumberland Area Economic Development Corporation requests that this Court enter judgment by confession against Cumberland Fulfillment,LLC,Robert F. Costello,and Janice M. Costello in the amount of$15,647.40,along with interest accruing at the per diem rate of $1.66, and additional fees and costs as prayed for in the Complaint. Respectfully submitted, MARTSON LAW OFFICES By: Christopher E. Rice, Esquire Attorney I.D.No. 90916 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 10 East High Street Carlisle, PA 17013 /�7�1Y (717) 243-3341 Date: Attorneys for Plaintiff li EXHIBIT "A " NOTE Dated: April T1 2011 $20,000.00 Carlisle, Pennsylvania FOR VALUE RECEIVED, the undersigned CUMBERLAND FULFILLMENT, LLC, a Pennsylvania limited liability company, of 507 N. York Street, Suite 2C, Mechanicsburg, Cumberland County, Pennsylvania 17055 (the "Maker"), irrevocably promises to pay to the order of the CUMBERLAND AREA ECONOMIC DEVELOPMENT CORPORATION, with its principal place of business at 401 E. Louther Street, Suite 209, Carlisle, Cumberland County, Pennsylvania 17013 (the "Corporation"), the principal sum of TWENTY THOUSAND and 00/100 Dollars ($20,000.00) (the "Loan"), or so much thereof as will be disbursed to the Maker pursuant to the terms of the Loan Agreement between the Corporation and the Maker dated the same date as this Note (the "Loan Agreement"), upon the terms as set forth herein and the Loan Agreement for working capital. This note bears a Four and Ninety-Nine hundredths percent (4.99%) rate of interest amortized over a term of Five (5) years. Beginning on the 15 day of nAy , 2011', and continuing monthly thereafter on the I-day of each and every month, payments of Three Hundred Seventy-Seven and 33/100 Dollars ($377.33) shall be due with the 'entire principal balance, plus any outstanding interest and other charges, if any, being due 15 , 2016.. The Maker may prepay the principal without peno, This Note is executed and delivered pursuant to the Loan Agreement, and is subject to all the terms and conditions thereof. This Note is entitled to the security provided for in the Loan Agreement, including the Personal Guarantees of Robert F. Costello and Janice M. Costello (hereinafter the Note, Loan Agreement, and Personal Guarantees are referred to as the "Loan Documents"). Payments not received five (5) days after they are due, will be assessed a late fee in an amount equal to the greater of fifteen percent (15%) of the monthly payment or Twenty- Five Dollars ($25). A non-sufficient funds (NSF) payment will be charged a penalty of Twenty-Five Dollars ($25) plus the late fee. THE MAKER HEREBY COVENANTS AND AGREES AS FOLLOWS: 1. All the terms, covenants, conditions and provisions of the Loan Documents are incorporated herein by reference and are made a part hereof, and any breach or violation thereof will.constitute a breach or violation of this Note. 2. It shall be an Event of Default under this Note if there is an Event of Default 1 under the Loan Documents. Upon the occurrence of an Event of Default, the Corporation at its option may declare that the whole unpaid balance of the principal indebtedness, together with interest and all other sums due hereunder or required to be paid to the Corporation thereunder, is due and payable immediately without notice to the Maker. 3. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE MAKER. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST THE MAKER, THE MAKER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF THE MAKER, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE MAKER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. Upon the occurrence of an Event of Default under this Note (of which an affidavit on behalf of the Corporation will be sufficient evidence), the Maker hereby irrevocably authorizes and empowers any attorney of any court of record in the Commonwealth of Pennsylvania, or elsewhere, to appear for and to enter and confess judgment against the Maker, at any time or times and as of any term, for the principal sum above mentioned, with or without declaration, with interest and costs of suit, without stay of execution, and with reasonable attorney's fees: The Maker agrees that any of their property may be levied upon to collect said judgment and may be sold upon a writ of execution, and hereby waives and releases all laws, now or hereafter in force, relating to exemption, appraisement or stay of execution. The authority hereby granted to confess judgment will not be exhausted by any exercise thereof, but will continue from time to time and at all times until the Maker has performed all of the other provisions hereof or of the Loan Documents to be performed by the Maker. 4. All of the covenants herein contained will accrue to the benefit of the successors and assigns, voluntary or involuntary, of the Corporation. 5. The Maker hereby waives the technical requirements of demand, grace, presentment for payment, protest, notice of dishonor or nonpayment and notice of the exercise of any option hereunder, except as notice and grace are specifically provided for in this Note or the Loan Agreement. 6. The remedies provided in this Note and the Loan Documents or otherwise available to the Corporation for the�enforcement of the payment of the principal sum and the performance of, the covenants, conditions, and agreements, matters and things herein and therein contained are cumulative and concurrent and the Corporation at its sole discretion may pursue them singly or successively or together and the Corporation may exercise them from time to time as often as occasion occurs until the Corporation has been paid all sums due in full. 2 7. The terms and provisions of this Note are severable. This means that if any of the terms, covenants, conditions or provisions of this Note are unenforceable or invalid under federal, state or other applicable law, such unenforceability or invalidity will not make any other of the terms, covenants, conditions or provisions hereof unenforceable or invalid. If law ,prohibits any waiver by Maker in this Note, including but not limited to the waiver of exemption from execution, such waiver will be and be deemed to be deleted herefrom. IN WITNESS WHEREOF, intending to be legally bound hereby, the Maker has caused this Note to be duly executed, the day and year first above written. WITNESS: CUMBERLAND FULFILLMENT, LLC, a Pennsylvania limited liability company By._ Robert F. Costello, Sole Member i I 1 i - ------- --IIS - -- - 3 EXHIBIT "B" i GUARANTY AND SURETY AGREEMENT THIS GUARANTY AND SURETYSHIP AGREEMENT is being made on this w_day of April, 2011 by, Robert F. Costello, with an address of 307 Mercury Drive, Mechanicsburg, PA 17050 (the"Guarantor")to the Cumberland Area Economic Development Corporation, with an address at 401 E. Louther Street, Suite 209, Carlisle, PA 17013 (the "Corporation"). BACKGROUND OF AGREEMENT A. Cumberland Fulfillment, LLC (the"Borrower")has entered into a Loan Agreement with the Corporation dated today's date (the "Loan Agreement") for a loan from the Corporation to the Borrower in the principal amount of Twenty Thousand 00/100 Dollars ($20,000.00) (the "Loan"). B. The Loan and the obligations of the Borrower to repay the Loan with interest are contained in a Note from the Borrower to the Corporation dated today's date(the"Note"). The Loan Agreement and the Note are sometimes collectively called the "Borrower's Agreements." C. The proceeds of the Loan will be used bythe Borrower towards working capital for the Borrower's business(the "Business"). D. The Corporation would not make the Loan without this Guaranty from the Guarantor. The Loan and the Project will benefit the Guarantor because of the Guarantor's ownership interests in the Borrower. NOW, THEREFORE, in order to induce the Corporation to make the Loan to the Borrower to the Borrower, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guarantor does hereby agree as follows: 1. Unconditional Guaranty of Payment and Performance. The Guarantor absolutely and unconditionally promises and guarantees to the Corporation the due and punctual payment and full and faithful performance of all amounts and obligations required to be paid or performed by the Borrower pursuant t� the Borrower's Agreements when and as the same shall become due and payable or subject to performance, whether at maturity,by acceleration or otherwise according to the terms of the Bor'rower's Agreements. 2. Guaranty Not Affected. The Guarantor agrees that neither an assignment nor a sale of any property will have any affect on the obligations assumed and guaranteed by the Guarantor, which shall continue with the same force and effect as if the assignment or sale had not been made. The Guarantor also agrees that the Corporation may make a claim against the Guarantor under this Guaranty and demand payment and performance by the Guarantor without any requirement that the i Corporation proceed first against the Borrower or any collateral securing the Loan or any other entity having liability for the Loan. The Guarantor agrees that the Corporation may make changes in any or all of the Borrower's Agreements(provided that those changes do not include an increase in the principal amount of the Loan, except by reason of increases to the principal from accrued and unpaid interest or other reimbursement obligations of the Borrower) and such changes will not discharge the obligations of the Guarantor under this Guaranty,which shall continue with the same force and effect as if the changes had not been made. 3. CONFESSION OF JUDGMENT AGAINST THE GUARANTOR IF ANY AMOUNT DUE TO THE CORPORATION UNDER THE NOTE, THE MORTGAGE OR THE LOAN AGREEMENT REMAINS UNPAID OR IF THE BORROWER IS IN DEFAULT UNDER ANY OF THE TERMS OF THE BORROWER'S AGREEMENTS, THEN THE GUARANTOR HEREBY AUTHORIZES AND EMPOWERS IRREVOCABLY,THE PROTHONOTARY, CLERK OF COURT OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR THE GUARANTOR IN SUCH COURT, IN TERM, OR VACATION,AT ANY TIME AND CONFESS JUDGMENT WITH OR WITHOUT THE FILING OF AN AVERMENT OR DECLARATION OF DEFAULT, FOR SUCH AMOUNT AS MAY APPEAR TO BE UNPAID, ALL INTEREST DUE THEREON AND ALL REASONABLE COSTS INCURRED IN CONNECTION WITH THE COLLECTION OF SUCH AMOUNT, TOGETHER WITH REASONABLE ATTORNEY'S FEES, THE GUARANTOR SHALL NOT CAUSE ANY BILL IN EQUITY TO BE FILED TO INTERFERE IN ANY MANNER WITH THE OPERATION OF SUCH JUDGMENT, HEREBY RATIFYINGAND CONFIRMINGALL THAT SAID ATTORNEY MAY DO BY VIRTUE HEREOF. THE AUTHORITY HEREINABOVE GRANTED SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AND AS OFTEN AS ANY DEFAULT SHALL OCCUR HEREUNDER. CONFESSION OF JUDGMENT MAY BE MADE BY FILING COPIES OF THE BORROWER'S AGREEMENTS AND THIS GUARANTY AGREEMENT IN LIEU OF ORIGINALS THEREOF. THE GUARANTOR ACKNOWLEDGES THAT GUARANTOR UNDERSTANDS THE MEANING AND EFFECT OF THE CONFESSION CONTAINED IN THE FOREGOING PARAGRAPH. SPECIFICALLY, THE GUARANTOR UNDERSTANDS AMONG OTHER THINGS THAT (1) GUARANTOR IS RELINQUISHING THE RIGHT TO HAVE NOTICE EXCEPT AS PROVIDED HEREIN, AN OPPORTUNITY TO BE HEARD AND THE RIGHT TO HAVE THE BURDEN OF PROOF OF DEFAULT REST ON THE CORPORATION PRIOR TO THE ENTRY OF JUDGMENT, (2) THE ENTRY OF JUDGMENT MAY RESULT IN A LIEN ON GUARANTOR'S PROPERTY, (3) GUARANTOR WILL BEAR THE BURDEN AND EXPENSE OF ATTACKING THE JUDGMENT AND CHALLENGING EXECUTION ON THE LIEN AND SALE OF THE PROPERTY 2 i 1 COVERED THEREBY, AND (4) ENOUGH OF GUARANTOR'S PROPERTY MAY BE TAKEN TO PAY THE PRINCIPAL AMOUNT, INTEREST, COSTS AND ATTORNEY'S FEES. 4. Guaranty as Suretyship Agreement. This Guaranty will be interpreted and construed as a contract of suretyship in accordance with the laws of the Commonwealth of Pennsylvania. 5. Costs of Collection and Legal Fees. In addition to all of the sums payable hereunder the Guarantor agrees to pay the reasonable costs and expenses incurred by the Corporation in connection with all action taken to enforce collection under this Guaranty or any or all of the Borrower's Agreements upon default by the Borrower and the Guarantor, whether by legal proceedings or otherwise, including reasonable attorney's fees and court costs. 6. Guarantor's Review of the Borrower Agreements. The Guarantor has examined and reviewed the Borrower Agreements and understands the obligations of the Borrower which the Guarantor is agreeing to pay and perform. 7. Subordination of the Guarantor's Interests. The Guarantor agrees that whatever right, title and interest the Guarantor may have in and to the Business shall be, and the same is hereby made, subject and subordinate to the interest of theCorporation. 8. Notices. Any notice or consent required or permitted by this Agreement shall be in writing and shall be deemed delivered if delivered in person or if sent by registered or certified mail, postage pre-paid, return receipt requested, as follows, unless such address is changed by written notice hereunder: (a) If to the Corporation: Cumberland Area Economic Development Corporation 401 E. Louther Street, Suite 209 Carlisle, PA 17013 (b) If to the Guarantor: Robert F. Costello 307 Mercury Drive Mechanicsburg, PA 17050 i Notice shall be effective upon delivery if delivered in person or on the second business day following mailing if mailed. 9. Absolute and Unconditional Nature of Guarantor's Obligations. The liability of the Guarantor under this Guaranty is absolute and unconditional, without regard to the liability of any other person. The Guarantor's liability will not in any manner be affected by reason of any action taken or not taken by the Corporation, which action or inaction is herein consented and agreed to, nor by the partial or complete unenforceability or invalidity of the Borrower Agreements or any other guaranty or surety agreement, pledge, assignment or other security for any.of the obligations 3 I i guaranteed hereunder. No delay in making demand on the Guarantor or satisfaction of Guarantor's liability hereunder will prejudice the Corporation's right to enforce such satisfaction. All of the rights and remedies of the Corporation will be cumulative. Any failure of the Corporation to exercise any right hereunder will not be construed as a waiver of the right to exercise the same or any other right at any time or times thereafter. 10. Pennsylvania Law Governs. The Guarantor agrees that this Guaranty will be governed by the substantive law of the Commonwealth of Pennsylvania,without regard to principles of conflicts of laws. The Guarantor hereby consents to the application of Pennsylvania law to this Guaranty and to the jurisdiction of the courts of the Commonwealth of Pennsylvania including, without limitation, the Common Pleas Courts ofCumberland County. 11. The Guarantor's Consents and Waivers. The Guarantor hereby: (a) Consents that the Corporation may without the Guarantor's consent and without affecting the Guarantors obligation: (i) Exchange, release or surrender any collateral under the Borrower's Agreements, or waive, release or subordinate any security interest, in whole or in part, now or hereafter held as security for any of the obligations guaranteed hereunder; (ii) Waive or delay the exercise of any of the rights or remedies of the Corporation against the Borrower or any other person or entity, including, without limitation, the Guarantor; (iii) Release the Borrower or any other person or entity; (iv) Renew, extend, or modify the terms of any of the obligations guaranteed hereunder or any instrument or agreement evidencing the same; and (v) Apply payments by the Borrower,the Guarantor, or any other person or entity, to any of the obligations guaranteed hereunder. (b) Waive all notices whatsoeverwith respect to this Guaranty or with respect to the !obligations guaranteed hereunder, except as provided in paragraph 2 hereinabove, including, without limitation, notice of: (i) The acceptance hereof by the Corporation or the intention to act, or the action, by the Corporation, in reliance hereon; (ii) The present existence or future incurring of any of the obligations guaranteed hereunder or any terms or amounts thereof or any change therein; (iii) Any default by the Borrower or any surety, pledgor, grantor of security, or Guarantor, and 4 i (iv) The obtaining or release of any guaranty or surety agreement (in addition to this Guaranty), pledge, assignment, or other security for any of the obligations guaranteed hereunder. The Guarantor waives notice of presentment, demand, protest and notice of non-payment, protest in relation to any instrument evidencing any of the obligations guaranteed hereunder, and any other demands and notices required by law, except as such waiver may be expressly prohibited by law. 12. Successors and Assigns. This Guaranty will inure to the benefit of the Corporation and the Corporation's successors and assigns and will be binding upon the Guarantor, and Guarantor's successors and assigns. 13. Document under Seal. This Guaranty is intended to take effect as a document under seal. 14. Term of Guaranty. This Guaranty shall be effective from the date hereof until the payment in full of all amounts due under the Loan or any of the Borrower's Ageements. IN WITNESS WHEREOF, the Guarantor, intending to be legally bound hereby, have executed this Guaranty Agreement for the purposes herein stated,the year and date above written. WITNESS: Robert F. Costello i i i 5 I GUARANTY AND SURETY AGREEMENT THIS GUARANTY AND SURETYSHIP AGREEMENT is being made on this�_day of April, 2011 by, Janice M. Costello, with an address of 307 Mercury Drive, Mechanicsburg, PA 17050 (the "Guararitor")to the Cumberland Area Economic Development Corporation, with an address at 401 E. Louther Street, Suite 209, Carlisle, PA 17013 (the "Corporation"). i BACKGROUND OF AGREEMENT i A. Cumberland Fulfillment, LLC (the"Borrower")has entered into a Loan Agreement with the Corporation dated today's date (the "Loan Agreement") for a loan from the Corporation to the Borrower in the principal amount of Twenty Thousand 00/100 Dollars ($20,000.00) (the "Loan"). B. The Loan and the obligations of the Borrower to repay the Loan with interest are contained in a Note from the Borrowerto the Corporation dated today's date(the"Note"). The Loan Agreement and the Note are sometimes collectively called the "Borrower's Agreements." C. The proceeds of the Loan will be used bythe Borrower towards working capital for the Borrower's business (the "Business"). D. The Corporation would not make the Loan without this Guaranty from the Guarantor. The Loan and the Business will benefit the Guarantor. NOW, THEREFORE, in order to induce the Corporation to make the Loan to the Borrowerto the Borrower, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guarantor does hereby agree as follows: 1. Unconditional Guaranty of Payment and Performance. The Guarantor absolutely and unconditionally promises and guarantees to the Corporation the due and punctual payment and full and faithful performance of all amounts and obligations required to be paid or performed by the Borrower pursuant to the Borrower's Agreements when and as the same shall become due and payable or subject to performance, whether at maturity,by acceleration or otherwise according to the terms of the Borrower's Agreements. 2. _Guaranty Not-Affected. The Guarantor agrees that-neither an assignment nor a sale of any property will have any affect on the obligations assumed and guaranteed by the Guarantor, which shall continue with the same force and effect as if the assignment or sale had not been made. The Guarantor also agrees that the Corporation may make a claim against the Guarantor underthis Guaranty and demand payment and performance by the Guarantor without any requirement that the Corporation proceed first against the Borrower or any collateral securing the Loan or any other entity ` 1 having liability for the Loan. The Guarantor agrees that the Corporation may make changes in any or all of the Borrower's Agreements(provided that those changes do not include an increase in the principal amount of the Loan, except by reason of increases to the principal from accrued and unpaid interest or other reimbursement obligations of the Borrower) and such changes will not discharge the obligations of the Guarantor under this Guaranty,which shall continue with the same force and effect as if the changes had not been made. 3. CONFESSION OF JUDGMENT AGAINST THE GUARANTOR IFANYAMOUNT DUE TO THE CORPORATION UNDER THE NOTE, THE MORTGAGE OR THE LOAN AGREEMENT REMAINS UNPAID OR IF THE BORROWER IS IN DEFAULT UNDER ANY OF THE TERMS OF THE BORROWER'S AGREEMENTS, THEN THE GUARANTOR HEREBY AUTHORIZES AND EMPOWERS IRREVOCABLY,THE PROTHONOTARY, CLERK OF COURT OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR THE GUARANTOR IN SUCH COURT, IN TERM, OR VACATION, AT ANY TIME AND CONFESS JUDGMENT WITH OR WITHOUT THE FILING OF AN AVERMENT OR DECLARATION OF DEFAULT, FOR SUCH AMOUNT AS MAY APPEAR TO BE UNPAID, ALL INTEREST DUE THEREON AND ALL REASONABLE COSTS INCURRED IN CONNECTION WITH THE COLLECTION OF SUCH AMOUNT, TOGETHER WITH REASONABLE ATTORNEY'S FEES. THE GUARANTOR SHALL NOT CAUSE ANY BILL IN EQUITY TO BE FILED TO INTERFERE IN ANY MANNER WITH THE OPERATION OF SUCH JUDGMENT, HEREBY RATIFYINGAND CONFIRMINGALL THAT SAID ATTORNEY MAY DO BY VIRTUE HEREOF. THE AUTHORITY HEREINABOVE GRANTED SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AND AS OFTEN AS ANY DEFAULT SHALL OCCUR HEREUNDER. CONFESSION OF JUDGMENT MAY BE MADE BY FILING COPIES OF THE BORROWER'S AGREEMENTS AND THIS GUARANTY AGREEMENT IN LIEU OF ORIGINALS THEREOF. THE GUARANTOR ACKNOWLEDGES THAT GUARANTOR UNDERSTANDS THE MEANING AND EFFECT OF THE CONFESSION CONTAINED IN THE FOREGOING PARAGRAPH. SPECIFICALLY,THE GUARANTOR UNDERSTANDS AMONG OTHER THINGS THAT (1) GUARANTOR IS RELINQUISHING THE RIGHT TO HAVE NOTICE EXCEPT AS PROVIDED -HEREIN, AN OPPORTUNITY TO BE HEARD AND THE RIGHT TO HAVE THE BURDEN OF PROOF OF DEFAULT REST ON THE CORPORATION PRIOR TO THE ENTRY OF JUDGMENT, (2) THE ENTRY OF JUDGMENT MAY RESULT IN A LIEN ON GUARANTOR'S PROPERTY, (3) GUARANTOR WILL BEAR THE BURDEN AND EXPENSE OF ATTACKING THE JUDGMENT AND CHALLENGING EXECUTION ON THE LIEN AND SALE OF THE PROPERTY 2 i i COVERED THEREBY, AND (4) ENOUGH OF GUARANTOR'S PROPERTY MAY BE TAKEN TO PAY THE PRINCIPAL AMOUNT, INTEREST, COSTS AND ATTORNEY'S FEES. 4. Guaranty as Suretyship Agreement. This Guaranty will be interpreted and construed as a contract of suretyship in accordance with the laws of the Commonwealth of Pennsylvania. 5. Costs of Collection and Legal Fees. In addition to all of the sums payable hereunder the Guarantor agrees to pay the reasonable costs and expenses incurred by the Corporation in connection with all action taken to enforce collection under this Guaranty or any or all of the Borrower's Agreements upon default by the Borrower and the Guarantor, whether by legal proceedings or otherwise, including reasonable attorney's fees and court costs. 6. Guarantor's Review of the Borrower Agreements. The Guarantor has examined and reviewed the Borrower Agreements and understands the obligations of the Borrower which the Guarantor is agreeing to pay and perform. 7. Subordination of the Guarantor's Interests. The Guarantor agrees that whatever right, title and interest the Guarantor may have in and to the Business shall be, and the same is hereby made, subject and subordinate to the interest of the Corporation. 8. Notices. Any notice or consent required or permitted by this Agreement shall be in writing and shall beldeemed delivered if delivered in person or if sent by registered or certified mail, postage ,pre-paid, return receipt requested, as follows, unless such address is changed by written notice hereunder.- (a) ereunder:(a) If to the Corporation: Cumberland Area Economic Development Corporation 401 E. Louther Street, Suite 209 Carlisle, PA 17013 (b) ; If to the Guarantor: Janice M. Costello 307 Mercury Drive Mechanicsburg, PA 17050 Notice shall be effective upon delivery if delivered in person or on the second business day following mailing if mailed. 9. ------Absolute-and-Unconditional Nature-of Guarantor's Obligatians.-The-liability of the Guarantor under this Guaranty is absolute and unconditional, without regard to the liability of any other person. The Guarantor's liability will not in any manner be affected by reason of any action taken or not taker! by the Corporation, which action or inaction is herein consented and agreed to, nor by the partial or complete unenforceability or invalidity of the Borrower Agreements or any other guaranty or surety agreement, pledge, assignment or other security for any of the obligations 3 I i guaranteed hereunder. No delay in making demand on the Guarantor or satisfaction of Guarantor's liability hereunder will prejudice the Corporation's right to enforce such satisfaction. All of the rights and remedies of the Corporation will be cumulative. Any failure of the Corporation to exercise any right hereunder will not be construed as a waiver of the right to exercise the same or any other right at any time or times thereafter. 10. Pennsylvania Law Governs. The Guarantor agrees that this Guaranty will be governed by the substantive law of the Commonwealth of Pennsylvania,without regard to principles of conflicts of laws. The Guarantor hereby consents to the application of Pennsylvania law to this Guaranty and to the jurisdiction of the courts of the Commonwealth of Pennsylvania including, without limitation, the Common Pleas Courts ofCumberland County. 11. The(Guarantor's Consents and Waivers. The Guarantor hereby: (a) Consents that the Corporation may without the Guarantor's consent and without affecting the Guarantor's obligation: (i) Exchange, release or surrender any collateral under the Borrower's Agreements, or waive, release or subordinate any security interest, in whole or in part, now or hereafter held as security for any of the obligations guaranteed hereunder; (ii) Waive or delay the exercise of any of the rights or remedies of the Corporation against the Borrower or any other person or entity, including, without limitation, the Guarantor; (iii) Release the Borrower or any other person or entity; (iv) Renew, extend, or modify the terms of any of the obligations guaranteed hereunder or any instrument or agreement evidencing the same; and (v) Apply payments by the Borrower,the Guarantor, or any other person or entity, to any of the obligations guaranteed hereuncbr. (b) Waive all notices whatsoever with respect to this Guaranty or with respect to I thei obligations guaranteed hereunder, except as provided in paragraph 2 her leinabove, including, without limitation, notice of: i (i) The acceptance hereof by the Corporation or the intention to act, or — the action;-by-the Corporation,in reliance hereon; - (ii) The present existence or future incurring of any of the obligations guaranteed hereunder or any terms or amounts thereof or any change therein; (iii) Any default by the Borrower or any surety, pledgor, grantor of security, or Guarantor, and i i 4 I i (iv) The obtaining or release of any guaranty or surety agreement (in addition to this Guaranty), pledge, assignment, or other security for any of the obligations guaranteed hereunder. The Guarantor waives notice of presentment, demand, protest and notice of non-payment, protest in relation to any instrument evidencing any of the obligations guaranteed hereunder, and any other demands and notices required by law, except as such waiver may be expressly prohibited by law. 12. Successors and Assiqns. This Guaranty will inure to the benefit of the Corporation and the Corporation's successors and assigns and will be binding upon the Guarantor, and Guarantor's successors and assigns. 13. Document under Seal. This Guaranty is intended to take effect as a document under seal. 14. Term of Guaranty. This Guaranty shall be effective from the date hereof until the payment in full of all amounts due under the Loan or any of the Borrower's Agreemerhs. IN WITNESS WHEREOF, the Guarantor, intending to be legally bound hereby, have executed this GuarantyAgreement for the purposes herein stated,the year and date above written. WITNESS: 1� ; 1 Janic . Costello i i I i i i i 5 I i VERIFICATION I, Stephanie Boehm, Finance Manager for Cumberland Area Economic Development Corporation,acknowledge I have the authority to execute this Verification on behalf of Cumberland Area Economic Development Corporation and certify that the foregoing Complaint for Confession of Judgment is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of this document is that of counsel and not my own. I have read the document and to the extent the Complaint for Confession of Judgment is based upon information which I have given to my counsel,it is true and correct to the best of my knowledge,information and belief. To the extent the content of the Complaint for Confession of Judgment is that of counsel,I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Cumbe and Area Economic Development Corporation &Ch�— By. teph ie Boehm, a Manager FARLESTIlertltU 1527 CCEMI1527.14 Cumbmlu+d FulfillmenAl1527.14.com.c=n.wpd _r Christopher E. Rice;Esquire i HF PROT H b N Attorney I.D. No. 90916 Seth T. Mosebey, Esquire ;i 4 JUN 17 PM 3: 114 Attorney I.D. No. 203046 MARTSON LAW OFFICES CUMBERLAND COUNTTY 10 East High Street PENNSYLVANIA Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CUMBERLAND AREA ECONOMIC : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2014 - ����,% CIVIL TERM CUMBERLAND FULFILLMENT, LLC, ROBERT F. COSTELLO, and JANICE M. COSTELLO, Defendants CERTIFICATE OF RESIDENCE We hereby certify that the last known addresses of the Defendants are: Cumberland Fulfillment, LLC 507 North York Street Suite 2c Mechanicsburg, PA 17055 Robert F. Costello 307 Mercury Drive Mechanicsburg, PA 17050 Janice M. Costello 307 Mercury Drive Mechanicsburg, PA 17050 The address of Plaintiff is: 53 West South Street, Suite 1, Carlisle, PA 17013. i MARTSON LAW OFFICES Christopher E. Rice, Esquir Seth T. Mosebey, Esquire Date: Attorneys for Plaintiff 1*111 JUN 17 PH 3: 14 Christopher E. Ride, Esquire CUMBERLAND COUNTY. Attorney I.D. No. 90916 PENNSYLVANIA Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CUMBERLAND AREA ECONOMIC : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff i V. : NO. 2014 - 36 CIVIL TERM CUMBERLAND FULFILLMENT, LLC, ROBERT F. COSTELLO;and JANICE M. COSTELLO, Defendants AFFIDAVIT AS TO MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA ) :SS. COUNTY OF CUMBERLAND ) Seth T. Mosebey,Esquire,being duly sworn according to law, deposes and says that he has authority to make this affidavit on behalf of his client,and to the best of his knowledge,information and belief,the Defendants Robert F. Costello and Janice M. Costello are not in the military service of the United States'of America,that the last known addresses for the Defendants are set forth in the Certificate of Residence. Affiant believes that Cumberland Fulfillment, LLC, is a Pennsylvania limited liability company and is not in the military service of the United States of America. Seth T. Mosebey, Esquire i Sworn to and subscribed before me this day of June, 2014. a Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Mary M.Price,Notary Public Carlisie Boro,Cumberland County My Commission Expires Aug.18,2015 OF NOTARIES MEMBER,PENNSYLVANIA ASSOCIATION i 11C'rPtit lis; Christopher E. Rice, Esquire iri,SUN 17 Attorney I.D. No. 90916 1 o° 14 Seth T. Mosebey, Esquire CMBERLAtjoU Attorney I.D. No. 203046 PENINS YL VA 1��'� � MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CUMBERLAND AREA ECONOMIC : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2014 - (�(p CIVIL TERM CUMBERLAND FULFILLMENT, LLC, ROBERT F. COSTELLO, and JANICE M. COSTELLO, Defendants AFFIDAVIT I, Seth T. Mosebey, Esquire, attorney for Plaintiff, hereby certify, that to the best of my knowledge, that the,Confession of Judgment for Money attached is not being entered against a natural person in connection with a consumer credit transaction. I Christopher E. Rice, Esq r Seth T. Mosebey, Esqui Sworn to and subscribed before me this Lj&day of June, 2014. L/U�) A COMMONWEALTH OF PENNSYLVANIA No ary ublic Notarial seal Mary M.Price,Notary Public Carlisle Boro,Cumberland County My Commission Expires Aug.18,2015 MEMBER,PENNSYLVANIA ASSOCIATION OF NOTARIES i Christopher E. Rice, Esquire Attorney I.D. No. 90916 i Seth T. Mosebey, Esquire '� I "� ' Attorney I.D. No. 203046 MARTSON LAW OFFICES JUN17 PH i 4 10 East High Street ;UMBER AIND CCIU�T y Carlisle, PA 17013 PENNSYLVANIA (717) 243-3341 Attorneys for Plaintiff CUMBERLAND AREA ECONOMIC : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2014 - (o�r CIVIL TERM CUMBERLAND FULFILLMENT, LLC, ROBERT F. COSTELLO, and JANICE M. COSTELLO, Defendants NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION REQUIRED BY 42 PA. C.S.A. §2737.1. (Act 105 of 2000) To: Defendants PURSUANT TO 42 PA. C.S.A. SECTION 2737.1, IF YOU HAVE BEEN INCORRECTLY IDENTIFIED AND HAD A CONFESSION OR JUDGMENT ENTERED AGAINST YOU, YOU ARE ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS DETERMINED BY THE COURT. INSTRUCTIONS REGARDING THE PROCEDURE TO STRIKE THE CONFESSED JUDGMENT ARE SET FORTH BELOW: Pennsylvania Rule of Civil Procedure 2959 - Striking Off Judgment (a) (1)Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all,grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only: (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Pennsylvania Rule of Civil Procedure 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c),the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b)If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. (g) (1) A judgment shall not be stricken or opened because of a creditor's failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of subdivision (g) which have not been stricken or opened as of the effective date and (2)judgments entered on or after the effective date. You may have other rights available to you other than as set forth in this notice. You should take this paper to your lawyer at once. If you do not have a lawyer, go to or telephone the office set forth,below. This office can provide you with information about hiring a lawyer. If you cannot afford to hire a lawyer, this office may be able to provide you with information about agencies that may offer legal services to eligible persons at a reduced fee or no fee. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone No. (717) 249-3166 I Christopher E. Rice, Esquire Attorney I.D. No. 90916 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CUMBERLAND AREA ECONOMIC : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2014 - 7 CIVIL TERM CUMBERLAND FULFILLMENT, LLC, / ROBERT F. COSTELLO, and JANICE M. COSTELLO, Defendants NOTICE OF ENTRY OF JUDGMENT PURSUANT TO PA. R.C.P. NO. 236 To: Cumberland Fulfillment, LLC 507 North York Street Suite 2c Mechanicsburg, PA 17055 / (� You are hereby notified that on / // , judgment by confession was entered against you in the above-captioned case in favor of Cumberland Area Economic Development CorporIation as follows: Principal $12,185.73 Late Fees $ 566.00 Interest(through 6/6/2014) $ 395.67 Costs of Suit (estimated) $ 500.00 Attorney Fees $ 2,000.00 Total: $15,647.40* *Plus interest per diem at$1.66, along witlbadditional costs and fees incurr ,until paid in full. NDate: 17 . E Prothonotary Christopher E. Rice, Esquire Attorney I.D. No..90916 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 1701'3 (717) 243-3341 Attorneys for Plaintiff CUMBERLAND AREA ECONOMIC : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2014 - 3G G CIVIL TERM CUMBERLAND FULFILLMENT, LLC, ROBERT F. COSTELLO, and JANICE M. COSTELLO, Defendants NOTICE OF ENTRY OF JUDGMENT PURSUANT TO PA. R.C.P. NO. 236 To: Robert F. Costello 307 Mercury Drive Mechanicsburg, PA 17050 You are hereby notified that on to , judgment by confession was entered against you in the above-captioned case in favor of Cumberland Area Economic Development Corporation as follows: Principal $12,185.73 Late Fees $ 566.00 Interest (through 6/6/2014) $ 395.67 Costs of Suit (estimated) $ 500.00 Attorney Fees $ 2,000.00 Total: $15,647.40* *Plus interest per diem at$1.66,along with additional costs and fees incurred,until paid in full. Date: Prothonotary Christopher E. Rice, Esquire Attorney I.D. No. 90916 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CUMBERLAND AREA ECONOMIC : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : : NO. 2014 - 3& C V CIVIL TERM CUMBERLAND FULFILLMENT, LLC, ROBERT F. COSTELLO, and JANICE M. COSTELLO, Defendants NOTICE OF ENTRY OF JUDGMENT PURSUANT TO PA. R.C.P. NO. 236 To: Janice M. Costello 307 Mercury Drive Mechanicsburg, PA 17050 You are hereby notified that on 61171 1Y , judgment by confession was entered against you in the above-captioned case in favor of Cumberland Area Economic Development Corporation as follows: Principal $12,185.73 Late Fees $ 566.00 Interest (through 6/6/2014) $ 395.67 Costs of Suit (estimated) $ 500.00 Attorney Fees $ 2,000.00 Total: $15,647.40* *Plus interest per diem at$1.66, along with additional costs and fees incurred,until paid in full. Date: Prothoho' �.