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HomeMy WebLinkAbout14-6574 'Supreme Co o ennsylvania Cour . 'Calhino . Meas For Prothonotary Use Only: Tj Docket No: Sr CU LAND y� County The information collected on this form is used solely for court administration purposes. This form does not supplement or•replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S Mx1 Complaint D Writ of Summons Petition E r-il Transfer from Another Jurisdiction Declaration of Taking 1 C Lead Plaintiff's Name: Lead Defendant's Name: T Acquired Capital II, LP Russell K. Dingeldein Dollar Amount Requested: Owithin arbitration limits I Are money damages requested? 0 Yes No 0 (check one) outside arbitration limits j N Is this a Class Action Suit? EJ Yes IM No Is this an MDJAppeal? F-71 Yes El No A Name of Plaintiff/Appellant's Attorney: Amar A.Aqrawal, Esquire M Check here if you have no attorney(are a Self-Represented [Pro Se] Litigant) i Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that i you consider most important. I TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS ii ® Intentional Ul Buyer Plaintiff Administrative Agencies I rl Malicious Prosecution [3 Debt Collection:Credit Card ® Board of Assessment i ® Motor Vehicle r-3 Debt Collection:Other Q Board of Elections Nuisance 0 Dept.of Transportation Premises Liability Statutory Appeal:Other S ® Product Liability(does not include E mass tort) ' © Employment Dispute: � ® Slander/Libel/Defamation Discrimination C ® Other: ® Employment Dispute:Other ® Zoning Board T ® Other: I ® Other: I o MASS TORT Asbestos N [2 Tobacco Cil Toxic Tort-DES ® Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS E © Toxic Waste ® Other: ® Ejectment ® Common Law/Statutory Arbitration Br n Eminent Domain/Condemnation ® Declaratory Judgment t n Ground Rent Mandamus I Landlord/Tenant Dispute ®Non-Domestic Relations M Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY Q Mortgage Foreclosure:Commercial ®Quo Warranto J Dental ® Partition 0 Replevin © Legal M Quiet Title 0 Other: 1 [3 Medical Other: ® Other Professional: Ll Updated 111/2011 r l� IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA Acquired Capital II, LP Plaintiff vs 7V. Russell K. Dingeldein & Laurie J. Dingeldein Defendant c3 n � � NOTICE TO DEFEND r- _` YOU HAVE BEEN SUED IN COURT. 1F YOU WISH TO DEFEND AGAINST THE CLALMS W 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH 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 REDUECED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE,PA 17013 1-800-990-9108 717-249-3166 US, Bpd a � a �4 31 3��� Y Amar A. Agrawal, Esquire Eisenberg, Gold, Cettei &Agrawal, P.C. 1040 North Kings Highway, Suite 200 Cherry Hill,New Jersey 08034 (856) 330-6200 Attorney for Plaintiff Attorney I.D. # 308159 File No.: AF-270-A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA CIVIL ACTION-LAW Acquired Capital II, LP, Plaintiff, VS. No. Russell K. Dingeldein& Laurie J. Dingeldein, COMPLAINT Defendant(s). PARTIES 1. The Plaintiff is Acquired Capital II, LP, a duly organized and subsisting Limited Partnership existing under the laws of the State of Texas, Mortgagee with its principal place of business located at 4100 Greenbriar Drive, Suite 120, Stafford, TX 77497. 2. The Defendants are Russell K.Dingeldein and Laurie J. Dingeldein,Mortgagors and real owners of the premises hereinafter described in Exhibit"A"and commonly known as 314-316 Bridge Street, New Cumberland, PA 17070. The Defendants have a last known address of 622 Strites Road, Harrisburg, PA 17111. 3. On June 19,2012,Defendants filed a Chapter 13 Bankruptcy in the Middle District of Pennsylvania under case number 1:12-bk-03667. Subsequently on May 8,2013,the bankruptcy was dismissed for failure to make plan payments. FIRST COUNT 4. On September 19, 2006, The Dingeldein Bakery, Inc. executed a Promissory Note (the "2006 Bakery Note") evidencing a certain loan in the principal amount of$240,000.00 from Fulton Bank to The Dingeldein Bakery, Inc. (the "2006 Bakery Loan"). A copy of the Note is attached hereto as Exhibit "B". Said 2006 Bakery Note was transferred to Plaintiff by Allonge, a copy of which is attached hereto as Exhibit "C". 5. On September 19, 2006, the Defendants Russell K. Dingeldein and Laurie J. Dingeldein executed a Commercial Guaranty in favor of Fulton Bank unconditionally guaranteeing the obligations of The Dingeldein Bakery,Inc. in connection with the 2006 Bakery Loan. A copy of the Commercial Guaranty is annexed hereto as Exhibit "D". 6. On the 19th day of September,2006,the Defendants made,executed and delivered a Mortgage upon the premises hereinafter described to Fulton Bank which mortgage is recorded on September 28, 2006 in the Office of the Recorder of Deeds of Cumberland County in Mortgage Book 1967 at Page 2506 & c (the 1240,000.00 Mortgage"). Said $240,000.00 Mortgage was assigned to Plaintiff,Acquired Capital 1I,LP by assignment dated September 24,2012 and recorded in the Office of the Recorder of Deeds of Cumberland County on October 9,2012 as Instrument No. 201231061. Acquired Capital II, LP remains the holder of said $240,000.00 Mortgage. 7. The premises subject to the said$240,000.00 Mortgage is fully described in Exhibit "A" which is attached hereto, incorporated herein and made a part hereof. The $240,000.00 Mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 8. This action is exempt from the Homeowners Emergency Mortgage Assistance Act, Act 91 because the real estate which is the subject of this action is not owner occupied. 9. This action is exempt from the provisions of Section 403 of Act 6 of 1974 (41 4 Purden's Statutes, Section 403):because the amount of the loan is in excess of the base figure provided for in that statute and the premises have more than two (2)residential units. 10. The said Mortgage is in default because the monthly interest and principal payments due have not been paid current since February 29, 2012, and by ;the terms of said. $240,000.00 Mortgage upon default in such payments of interest and principal for a period of thirty(30)days,the principal and all interest due thereon is collectible forthwith. 11. The following amount are due on the $240,000.00 Mortgage: (a) . Principal $211,716.48 (b) Interest to 11/05/14 at $35.29 p.d. $ 6,428.09 (c) Attorney's Commission $ 3,500.00 (d) Late Charges $ 183.86 TOTAL: $221,828.43 Plaintiff agrees to adjust its demand for attorney's fees,if applicable,at the time payment is made on any judgment. 12. Pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., Defendant may dispute the validity of the debt or any portion thereof. If Defendant does so in writing within thirty (30) days of receipt of this pleading, Counsel for Plaintiff will obtain and provide Defendant with written verification thereof,otherwise,the debt will be assumed to be valid. Likewise, if requested within thirty (30) of receipt of this pleading, Counsel for Plaintiff will send Defendant the name and address of the original creditor if different from above. WHEREFORE,the Plaintiff demands Judgment against the Defendant for foreclosure and sale of the mortgaged premises in the amounts due as set forth in paragraph 11,namely$221,828.43 plus the following amounts accruing after November 5, 2014 to the date of judgment: 16. This action is exempt from the Homeowners Emergency Mortgage Assistance Act, Act 91 because the real estate which is the subject of this action is not owner occupied. 17. This action is exempt from the provisions. of Section 403 of Act 6 of 1974 (41 Purden's Statutes, Section 403) because the amount of the loan is in excess of the base figure provided for in that statute and the premises have more than two (2) residential units. 18. The said $230,000.00 Mortgage is in default because the monthly interest and principal payments due have not been paid current since November 15, 2011., and by the terms of said $230,000.00 Mortgage upon default in such payments of interest and principal for a period of thirty(30) days, the principal and all interest due thereon is collectible forthwith. 19. The following amount are due on the $230,000.00 Mortgage: (a) Principal $195,952.21 (b) Interest to 11/05/14 at$32.66 p.d. $ 9,488.71 (c) Attorney's Commission $ 3,500.00 (d) Late Charges $ 168.80 TOTAL: $209,109.72 Plaintiff agrees to adjust its demand for attorney's fees, if applicable,at the time payment is made on any judgment. 20. Pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., Defendant may dispute the validity of the debt or any portion thereof. If Defendant does so in writing within thirty (30) days of receipt of this pleading, Counsel for Plaintiff will obtain and provide Defendant with written verification thereof,otherwise,the debt will be assumed to be valid. Likewise, if requested within thirty (30) of receipt of this pleading, Counsel for Plaintiff will send Defendant the name and address.of the original creditor if different from above. s WHEREFORE,the Plaintiff demands Judgment against the Defendant for foreclosure and sale of the mortgaged premises in the amounts due as set forth in paragraph 19,namely$209,109.72 plus the following amounts accruing after November 5, 2014 to the date of judgment: (a) Interest of$32.66 per day; (b) Late Charges of$84.40 per month; (c) Advances for taxes,insurance or other expenses relating to the real estate,plus interest at the legal rate allowed on judgments after the date of judgment,additional attorneys fees(if any) hereafter incurred and costs of suit. THIRD COUNT 21. On March 17, 2007, The Dingeldein Bakery, Inc. executed a Promissory Note (the "2007 Bakery Note")evidencing a certain loan in the principal amount of$69,000.00 from Fulton Bank to The Dingeldein Bakery,Inc.(the"2007 Bakery Loan"). A copy of the 2007 Bakery Note is attached hereto as Exhibit "G". Said 2007 Bakery Note was transferred to Plaintiff by Allonge, a copy of which is attached hereto as Exhibit"H". .22. On March 17,2007,the Defendants Russell K. Dingeldein and Laurie J. Dingeldein executed a Commercial Guaranty in favor of Fulton Bank unconditionally guaranteeing the obligations of The Dingeldein Bakery,Inc. in connection with the 2007 Bakery Loan. A copy of the Commercial Guaranty is annexed hereto as Exhibit"I". 23. On the 17th day of March, 2007, the Defendants made, executed and delivered a Mortgage upon the premises hereinafter described to Fulton Bank which mortgage is recorded on April 20, 2007 in the Office of the Recorder of Deeds of Cumberland County as Instrument No. 200912439 (the "$69,000.00 Mortgage"). Said $69,000.00 Mortgage was assigned to Plaintiff, Acquired Capital II, LP by assignment dated January 23, 2013 and recorded in the Office of the Recorder of Deeds of Cumberland County as Instrument No. 201304545. Acquired Capital II, LP remains the holder of said $69,000.00 Mortgage. 24. The premises subject to the said $69,000.00 Mortgage is fully described in Exhibit "A"which is attached hereto,incorporated herein and made a part hereof. The$69,000.00 Mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 25. This action is exempt from the Homeowners Emergency Mortgage Assistance Act, Act 91 because the real estate which is the subject of this action is not owner occupied. 26. This action is exempt from the provisions of Section 403 of Act 6 of 1974 (41 Purden's Statutes, Section 403) because the amount of the loan is in excess of the base figure provided for in that statute and the premises have more than two (2)residential units. 27. The said$69,000.00 Mortgage is in default because the monthly interest and principal payments due have not been paid current since January 17,2013,and by the terms of said$69,000.00 Mortgage upon default in such payments of interest and principal for a period of thirty(30)days,the principal and all interest due thereon is collectible forthwith. 28. The following amount are due on the $69,000.00 Mortgage: (a) Principal $64,280.01 (b) Interest to 11/05/14 at$13.39 p.d. $ 1,499.68 (c) Attorney's Commission $ 2,500.00 (d) Late Charges $ 0.00 TOTAL: $68,279.69 Plaintiff agrees to adjust its demand for attorney's fees, if applicable,at the time payment is made on any judgment. 29. Pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., Defendant may dispute the validity of the debt or any portion thereof. If Defendant does so in writing within thirty (30) days of receipt of this pleading, Counsel for Plaintiff will obtain and provide Defendant with written verification thereof,otherwise,the debt will be assumed to be valid. Likewise, if requested within thirty(30) of receipt of this pleading, Counsel for Plaintiff will send Defendant the name and address of the original creditor if different from above. WHEREFORE,the Plaintiff demands Judgment against the Defendant for foreclosure and sale of the mortgaged premises in the amounts due as set forth in paragraph 28,namely$68,279.69 plus the following amounts accruing after November 5, 2014 to the date of judgment: (a) Interest of$13.39 per day; (b) Advances for taxes,insurance or other expenses relating to the real estate,plus interest at the legal rate allowed on judgments after the date of judgment,additional attorneys fees(if any) hereafter incurred and costs of suit. EISENBERG,GOLD,CETTEI&AGRAWAL,P.C. Attorneys for Plaintiff By: /V— t Amar A. Agrawal, Esquire Dated: 1\ V%1;-OvA EXHIBIT "A" r EXHIBIT "A" ALL THAT CERTAIN tract of land located in the Borough of New Cumberland,Cumberland County, Pennsylvania, and being Nos. 314-316 Bridge Street, and more particularly bounded and described as follows,to wit" BEGINNING at a point on the south side of Bridge Street at intersection of an alley;thence along south side of Bridge Street in a southeasterly direction fifty(50)feet to a point at line of Lot No. 189 in the General Plan of New Cumberland; thence south forty(40)degrees west by the same one hundred seventy-five(175)feet to the northern side of a ten (10)foot alley; thence by the same in a northwesterly direction fifty (50)feet to the eastern side of an alley; thence by the same north forty(40) degrees east, one hundred seventy-five(175)feet to a point the place of beginning. HAVING thereon erected a three story brick store and apartment building and large frame garage. Being Lot No. 190 in the General Plan of Lots of New Cumberland. BEING the same premises which Land Holding Corp. of PA,by Deed dated April 9, 1999, and recorded April 13, 1999, in the Office of the Recorder of Deeds in and for the County of Cumberland, Pennsylvania, in Book 197,Page 393,granted and conveyed unto Russell K. Dingeldein and Laurie J. Dingeldein,husband and wife, Mortgagors herein. Property Address: 314-316 Bridge Street,New Cumberland,PA 17070 Tax ID: 25-24-0813-098 EXHIBIT " B° - IIIIi�I�IIiII�IIIIIdIIII�IN11111111��lllll►ll I�IIUI�911�11l�IIIII� I � � I - — -- �D Illl�lllff�ll�l�►1111►lallllllll llllllilllallllll�llllllll�lll�llllllllll 00001-9708275-900100010031057' ilillllll • PROMISSORY NOTE Borrower. The Dingeldeln Bakery,Inc. Lender: Fulton Bank 316 Bridge Street Now Cumberland Office Now Cumberland,PA 17070 Corporate Address One Ponn-Square Lancaster,PA 17602 Principal Amount: $240,000.00 Date of Note: September 19,2006 PROMISE TO PAY. The Dingoldein Bakery,Inc.("Borrower")promises to pay to Fulton Bank("Lender"),or order,in lawful money of the United States of America,the principal amount of Two Hundred Forty Thousand&001100 Dollars($240,000.00).together with interest on tate unpaid principal balance from September 19,2006,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: 239 consecutive monthly installments on account of principal and Interest in the amount of$1,994.45 each, beginning on October 19, 2006 and continuing on the 19th day of each month thereafter. One final payment of oil unpaid principal and all unpaid accrued interest shall be due and payable on September 19,2026. INTEREST RATE. The interest rate applicable hereunder is the annual fixed rate of 7.80%for a period of 60 months from the date hereof, followed by the annual variable rate of the Index,as hereinafter defined. Unless otherwise agreed or required by applicable law,payments will be applied first to any accrued unpaid interest;then to principal;then to any late charges;and then to any unpaid collection costs. 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 designato.in writing. VARIABLE INTEREST RATE. The Interest rate on this Note Is subject to change from time to time based on changes in an index which is the Fulton Bank Prime Rate(the"Index"). The Index is not necessarily the lowest rate charged by Lender on Its loans and is set by Lender in Its sole discretion. If the Index becomes unavailable during the term of this loan, Lender mny 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 day. Borrower understands that Lender may make loans based on other rates as well. The interest rate to be applied to the unpaid principal balance during this Note will be at a rate equal to the Index. 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. Upon prepayment of this Note,Lender is entitled to the following prepayment penalty: The Borrower shall have the right to prepay the whole or any part of the principal and interest hereunder-provided that: (a)at the time of prepayment no event of default hereunder shall have occurred;IN any prepayment during any fixed rate period shall be accompanied by a prepayment penalty equal to two (2%)percent of the amount;(c)any partial prepayment shall be applied to the unpaid principal balance,and no prepayment shall reduce the amount of the scheduled installments nor relieve the Borrower from paying the scheduled Installments on each due date, until the entire indebtedness0isopthe original anything to the contrary set forth above,the Prepayment penalty will not be charged if up to twenty P g' principal amount is prepaid from internally generated funds within any loan year. The term"loan year"as used herein is defined as any period of one year commencing on the date hereof or on any anniversary of such date. Except for the foregoing, Borrower may pay all or a portion of the amount owed earlier than it Is duo. 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: Fulton Bank, New Cumberland Office,Corporate Address,One Penn Square,Lancaster,PA 17602. LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 5.000% of the unpaid portion 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 5.000 percentage point margin ("Default Rete Margin"). The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had there been no default. if judgment is entered in connection with this Note,interest will continue to accrue after the date of judgment at the rete in effect at the time judgment is entered. However,in no event will the interest rate exceed the maximum interest rote 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 chis 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 pq!,form 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 behalfunder this Note or the related documents is false or misleading in any material respect,either now or at the time made or furnished or becomes false or misleading at any time thereafter. Insolvency. The dissolution or termination of Borrower's existence as a going business,the insolvency of Borrower,the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditou"worlcout, 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 o 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 end deposits with Lender monies or ':e surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, In its reserve or bond for the dispute. sole discretion,,,as being an adequate' 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 iltdeuiiiu'ness 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. Insecurfty. Lender in good faith believes itself insecure. PROMI ORY NOTE Loan No: 9001 (C tinued) Page 2 Cure Provisions. If any default,other than a default in payment is curable and if Borrower has not been given a notice of o 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 115)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. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action,proceoding,or counterclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Note will be governed by federal law applicable to Lender and,to the extent not preempted by fedora?law, tho laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Note has been ecceptod by Lender in the Commonwealth of Pennsylvania. RIGI4T 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,and,at Lender's option,to administratively freeze ell such accounts to allow Lender to protect Lender's charge and setoff rights provided in this paragraph. - COLLATERAL. Borrower acknowledges this Note is secured by Mortgage on 314-316 Bridge Street,Borough of New Cumberland, Cumberland County,PA; Guaranties of Russell K.Dengeldein and Laurie J.Dingeldeln. CROSS DEFAULT.Any event of default under any loan due and owing to Lender by Borrower,at any time,shall constitute an event of default under all loans due and owing to Lender by Borrower. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns,and shall inure to the benefit of Lender and its successors and assigns. 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 ondorser,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,fell to realize upon or perfect Lendar's security interest In the collateral;and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification Is made. The obligations under this Note are joint and several. If any portion of this Note is for,any reason determined to be unenforceable,it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA,OR ELSEWHERE,TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST,LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE,TOGETHER WITH COSTS OF SUIT,AND AN ATTORNEY'S COMMISSION OF TEN PERCENT(10%)OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY;AND FOR SO DOING,THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY,BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY(NAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS NOTE,BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE,INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW, BORROWER: n,, , TH DIN DEIN BAKERY, INC. / C 'e J. i eldein, ocretary/Treasurer of The all (� Dingoldofn akory,Inc. -Al3•fs'f Witness Secran, ss s ry OtPO�F6-5681) c s s r oos to P PA aunrco�cvravuomsc mrmr EXHIBIT "C" i, ALLONGE This Allonge is attached and made a part of that certain evidence of indebtedness dated September 19,2006,togetherwith all renewals,extensions and modifications,if any,executed and given by The Dingeldein Bakery, Inc. in the original amount of$240,000.00. It-is to be read together with and is hereby incorporated by reference in the attached instrument and constitutes an integral part thereof. Pay to the order of Acquired Capital H, L.P., its successors and assigns as is, where is, with all faults and without recourse and without representations or warranties of any kind,whether express or implied, oral or written, except as provided in that certain Loan Purchase and Sale Agreement dated June 21, 2012. Executed this` "`day of September, 2012. Fulton Bank Brad A. Hre Authorized Signatory EXHIBIT " D" �' �' � � � � ' { I I III NhIII Il�llull��ll�illl�I�i 111 I�111111 ILII.II�II��ILI�I�II{I L�II III III I�III I I�IIIII� 00001-9708275-900100060031057' COMMERCIAL GUARANTY Borrower: The Dingeldein Bakery,Inc. Lender: Fulton Bank 316 Bridge Street Now Cumberland Office New Cumberland.PA .17070 Corporate Address One Penn Square Lancaster.PA 17602 Guarantor: Russell K.Dingeldoin Laurie J.Dingeldein 622 Strites Road Harrisburg.PA 17111 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 d will make any payments to Lender or its order,on demand,in legal tender of the United States of America,in same-day funds,without set-off or deduction or counterclaim, and will otherwise perform Borrower's obligations under the Note and Related Documents. Under this Guaranty, Guarantor's liability is unlimited and Guarantor's obligations are continuing. INDEBTEDNESS. The word"Indebtedness"as used in this Guaranty means all of the principal amount outstanding from time to time and at any one or more times,accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, attorneys'fees, arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired,that Borrower individually or collectively or interchangeably with others,owes or will owe Lender."Indebtedness"includes,without limitation,loans,advances, debts, overdraft indebtedness, credit card indebtedness, lease obligations, liabilities and obligations under any interest rate protection apreements or foreign currency exchange agreements or commodity price protection agreements, other obligations, and liabilities of Borrower, and any present or future judgments against Borrower,future advances,loans or transactions that renew,extend,modify,refinance,consolidate or substitute these debts, liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by their terms or acceleration;absolute or contingent;liquidated or unliquidated;determined or undetermined;direct or indirect; primary or secondary in nature or arising from a guaranty or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or non-negotiable instrument or writing;originated by Lender or another or others;barred or unenforceable against Borrower for any reason whatsoever;for any transactions that may be voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated then reduced or extinguished and then afterwards Increased or reinstated. It Lender presently holds one or more guaranties,or hereafter receives additional guaranties from Guarantor,Lender's rights under all guaranties shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary)affect or invalidate any such other guaranties. Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties. CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO TIME. DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender,or any notice to Guarantor or to Borrower, and will continue in full force until all the Indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have been performed in full. It Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to Lender,by certified mail,at Lender's address listed above or such other place as Lender may designate in writing. Written revocation of this Guaranty will apply only to advances or new Indebtedness created after actual receipt by Lender of Guarantor's written revocation. For this purpose and without limitation,the term"new Indebtedness"does not include the Indebtedness which at the time of notice of revocation is contingent, unliquidated, undetermined or not due and which later becomes absolute, liquidated, determined or due. This Guaranty will continue to bind Guarantor for all the Indebtedness incurred by Borrower or committed by Lender prior to receipt of Guarantor's written notice of revocation,including any extensions,renewals, substitutions or modifications of the Indebtedness. All renewals, extensions, substitutions, and modifications of the Indebtedness granted after Guarantor's revocation,are contemplated under this Guaranty and, specifically will not be considered to be new Indebtedness. This Guaranty shall bind Guarantor's estate as to the Indebtedness created both before and after Guarantor's death or incapacity, regardless of Lender's actual notice of Guarantor's death. Subject to the foregoing, Guarantor's executor or administrator or other legal representative may terminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect. Release of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this Guaranty. A revocation Lender receives from any one or.more Guarantors shell not affect the liability of any.remaining Guarantors under this Guaranty. It is anticipated that fluctuations may occur in the aggregate amount of the Indebtedness covered by this Guaranty,and Guarantor specifically acknowledges and agrees that reductions in the amount of the Indebtedness,even to zero dollars 1$0.00),prior to Guarantor's written revocation of this Guaranty shall not constitute a termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs,successors and assigns so long as any of the Indebtedness remains unpaid and even though the Indebtedness may from time to time be zero dollars($0.00). GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender,either before or after any revocation hereof, without notice or demand and without lessening Guarantor's liability under this Guaranty,from time to time: (A) prior to revocation as set forth above,to make one or more additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend additional credit to Borrower; (B) to alter,compromise,renew,extend,accelerate,or otherwise change one or more times the time for payment r other terms of the Indebtedness or any part of the Indebtedness, including increases and decreases of the rate of interest on the oIndebtedness;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; ID) 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; (F) to apply such security and direct the order or manner of sale thereof, including without limitation,any nonjudicW sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine; (G) to sell,transfer, assign or grant participations in all or any pan of the Indebtedness; and (H) to assign or transfer this Guaranty in whole or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that JAI no representations or agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this Guaranty is executed at Borrower's request and not at the request of Lender; (C) Guarantor has full power,right and authority to enter into this Guaranty; (D) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law,regulation,court decree or order applicable to Guarantor; (E) Guarantor has not and will not,without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets,or any interest therein; 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; (G) no material adverse change has occurred in Guarantor's financial condition since the date of the most recent financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's financial condition; (H) no litigation,claim, investigation,administrative proceeding or similar action(including those for unpaid taxes)against Guarantor is pending or threatened; 11) Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and (J) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events,or circumstances which might in any way affect Guarantor's risks under this Guaranty,and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower. GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following: COMMERCIAL GUARANTY Loan No: 0001-9708275-9001 (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 020)days after the applicable filing date for the tax reporting period ended,Federal and other governmental tax returns,prepared by Guarantor. All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP,applied on a consistent basis,and certified by Guarantor as being true and correct. - GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue lending money or to extend other credit to Borrower; (B) to make any presentment, protest,demand, or notice of any kind, including notice of any nonpayment of the Indebtedness or of any nonpayment related to any collateral,or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser,or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations; (C) to resort for payment or to proceed directly or at once against any person,including Borrower or any other guarantor; (D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor,or any other person; (E) to give notice of the terms,time,and place of any public or private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lender's power;or (G) to commit any act or omission of any kind,or at any time,with respect to any matter whatsoever. Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any rights or defenses arising by reason of (A) any "one action" or"anti-deficiency" law or any other law which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying,or discharging the Indebtedness; (C) any disability or other defense of Borrower,of any other guarantor,or of any other person,or by reason of the cessation of Borrower's liability from any cause whatsoever,other than payment in full in legal tender, of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness; (E) any statute of limitations, if at any time any action or suit brought by Lender against Guarantor is commenced,there is outstanding Indebtedness which is not barred by any applicable statute of limitations;or.(F) any defenses given to guarantors at law or in equity other than actual payment and performance of the Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise,or by any third party,on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors,the Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty. Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower,the Guarantor,or both. GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made with Guarantor's full knowledge of its significance and consequences and that,under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the extent permitted by law or public policy. COLLATERAL. This Guaranty is secured by Mortgage on 314-316 Bridge Street,Borough of New Cumberland,Cumberland County,PA. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open in the future. However,this does not include any IRA or Keogh accounts,or any trust accounts for which setoff would be prohibited by law. Guarantor authorizes Lender,to the extent permitted by applicable law,to hold these funds if there is a default,and Lender may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, whether now existing or hereafter created,shall be superior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any - claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrowdr, 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(including efforts to modify or vacate any automatic stay or injunction),appeals,and any anticipated post-judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the court. Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the provisions of this Guaranty. Governing Law. This Guaranty will be governed by federal law applicable to Lender and,to the extent not preempted by federal law,the laws of the Commonwealth of Pennsylvania without regard to Its conflicts of law provisions. This Guaranty has been accepted by Lender in the Commonwealth of Pennsylvania. Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attorney with respect to this Guaranty;the Guaranty fully reflects Guarantor's intentions and parol evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses, claims,damages,and costs(including Lender's attorneys'fees)suffered or incurred by Lender as a result of any breach by Guarantor of the warranties,representations and agreements of this paragraph. Interpretation. In all cases where there is more than one Borrower or Guarantor,then all words used In this Guaranty in the singular shall be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty Is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectively shall mean all and any one or more of them. The words"Guarantor," "Borrower,"and"Lender"include the heirs,successors, assigns,and transferees of each of them. If a court finds that any provision of this Guaranty is not valid or should not be enforced,that fact by itself will not mean that the rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid or unenforceable. If any one or more of Borrower or Guarantor are corporations,partnerships,limited liability companies,or similar entities,it Is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers,directors,partners,managers,or other agents acting or purporting to act on their behalf,and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Notices. Unless otherwise provided by applicable law,any notice required to be given under this Guaranty shall be given in writing,and, except for revocation notices by Guarantor, shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail,as first class,certified or registered mail postage prepaid,directed to the addresses shown near the beginning of this Guaranty. All revocation notices by Guarantor shall be in writing and shall be effective upon delivery to Lender as provided in the section of this Guaranty entitled"DURATION OF GUARANTY." Any party may change its address for notices under this Guaranty by giving formal written notice to the other parties, specifying that the purpose of thgl 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: 0001-9708275-9001 (Continued) Page 3 �. than one Guarantor,any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors. No Waiver by Lender. lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and Guarantor,shall constitute a waiver of any of Lender's rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Guaranty,the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Successors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal representatives,successors,and assigns,and shall be enforceable by Lender and its successors and assigns. 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. 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 The Dingeldein Bakery,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 Russell K.Dingeldein and Laurie J. Dingeldein,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 AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT-00%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY;AND FOR SO DOING,THIS GUARANTY OR A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY TO.CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY. GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED"DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED SEPTEMBER 19,2006. 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. l GUARANTOR: - n �l 9J (Seal) cC4vwL'Lw LL �r ' (Seal) / sell K.Dingeldein La He J.Dig ein Signed,ack and d d in the presence of: X Witness X Witness VSCN P"O U"a}p,vw.6.L.00AJ"cep.X.'ina ruune+5auwm."".,bfl.lWG.Ap N2nu n......d. •PT.1 Pu[OBUc-p c 7.21777 EXHIBIT " E" . 111111'III�ll�il�llll�llll�lll�llll�ll��I�11�11�1111111�1119111�I�11 II'�N�II�I�II��IIII�I�I�Illfl�. II II - 0000019706276-900100010031057• PROMISSORY NOTE Borrow Br: Russell K.Dingoldein Lender: Fulton Bank Laurie J.Dingeldein New Cumberland Office 622 Stritos Road Corporate Address Harrisburg,PA 17111 One Penn Square Lancaster,PA 17602 -Principal Amount: $230,000.00 Date of Note: September 19, 2006 PROMISE TO PAY. Russell K.Dingeldoin and Laurie J.Dingeldoin("Borrower")jointly and severally promise to pay to Fulton Bank i"Lender").or order, in lawful money of the United States of America, the principal amount of Two Hundred Thirty Thousand & 00/100 Dollars ($230,000.00),together with into rest on the unpaid principal balance from September 19.2006,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: - 179 consecutive monthly installments on account of principal and interest in the amount of$2,179.70 each,beginning on October 19. 2006 and continuing on the 19th day of each month thereafter. One final payment of all unpaid principal and all unpaid accrued interest shall be due and payable on September 19.2021. INTEREST RATE. The interest rate applicable hereunder is the annual fixed rate of 7.75%for a period of 60 months from the date hereof, followed by the annual vadablo rate of the Index.as hereinafter defined. Unless otherwise agreed or required by applicable low, payments will be applied first to any accrued unpaid interest;then to principal;then to any late charges;and then to any unpaid collection costs. The annual interest rete 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 index which is the Fulton Bank Prime Rate(the"Index"). The Index Is not necessarily the lowest rete charged by Lender on its loans and is set by Lender in its sole discretion. 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 then each day. Borrower understands that Lender may make loans based on other rates as well. The interest rate to be applied to the unpaid principal balance during this Note will be at a rate equal to the Index. 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 rete, 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. Upon prepayment of this Note,Lender Is entitled to the following prepayment penalty: The Borrower shall have the right to prepay the whole or any part of the principal and interest hereunder provided that:(a)at the time of prepayment no event of default - hereunder shall have occurred:(b)any prepayment during any fixed rate period shall be accompanied by a prepayment penalty equal to two (2%)percent of the amount;(c)any partial prepayment shall be applied to the unpaid principal balance,and no prepayment shall reduce the amount of the scheduled installments nor relieve the Borrower from paying the scheduled installments on each duo date, until the entire indebtedness is paid.Notwithstanding anything to the contrary set forth above,the prepayment penalty will not be charged if up to twenty (20%)percent of the original principal amount is prepaid from internally generated funds within any loan year. The term"loan year"as used herein is defined as any period of one year commencing on the data hereof or on any anniversary of such date. Except for the foregoing, Borrower may pay all or a portion of the amount owed earlier than it is duo. 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: Fulton Bank, New Cumberland Office,Corporate Address,One Penn Square,Lancaster,PA 17602. LATE CHARGE. If a payment is 15 days or more tate, Borrower will be charged 5.000% of the unpaid portion 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 5.000 percentage point margin ("Default Rate Margin"). The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had there been no default. If judgment is entered in connection with this Note,interest will continue to accrue after the dote 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 shell 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 or misleading at any time thereafter. Death or Insolvency. The death of Borrower or the dissolution or termination of Borrower's existence as a going business,the insolvency of Borrower,the appointment of o receiver for any part of Borrower's property, any assignment for the benefit of creditors,any type of creditor workout,or the commencement of.eny 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 at n 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. •r Events'Affecting Guarantor.'Any of the preceding events occurs with respect to any guarantor;'endorser}:aufe ;:or:accommodation party. t -.... . . of env of the indebtedness or any guarantor, endorser; surety, or accommodation Party dies or becomes incompetent, or revokes or disputes the validity of,or liability under,any guaranty of the Indebtedness evidenced by this Note. In the event of a death, Lender,at its option,may,but shell 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. 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 some provision of this Note within the preceding twelve 021 months, it may be cured if Borrower, after receiving written notice from PROMISSORY NOTE _9001 (Continued) Page 2 Loan�•lo: • Lender demanding cure of such default: (11 cures the default within fifteen(15)days;or (2) If the cure requires more than fifteen 05) 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 low, 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'hlre 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 low,Borrower also will pay any court costs,in addition to all other sums provided by law. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action,proceeding,or counterclaim brought by either Lender or Borrower against the other. 'GOVERNING LAW. This Note will be governed by federal law applicable to Lender and,to the extent not preempted by federal law,the lows 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 low,to charge or setoff all sums owing on the Indebtedness against any and all such accounts,and,at Lender's option,to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights provided in this paragraph. ge on 314-316 Bridge Street,Borough of New Cumberland,Cumberland COLLATERAL. Borrower acknowledges this Note is secured by Mortga County,PA. CROSS DEFAULT.Any event of default under any loan due and owing to Lender by Borrower,at any time,shall constitute an event of default under all loans due and owing to Lender by Borrower. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns,and shall Inure to the benefit of Lender and its successors and assigns. 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. Each Borrower understands and agrees that,with or without notice to Borrower,Lender may with respect to any other Borrower la)make one or more additional secured or unsecured loans or otherwise extend additional credit; (b)alter,compromise,renew,extend,accelerate,or otherwise change one or more times the time for payment or other terms of any indebtedness,including increases and decreases of the rate of interest on the indebtedness; (c)exchange,enforce,waive,subordinate, fail or decide not to perfect,and release any security, with or without the substitution of new collateral; Id) apply such security and direct the order or manner of sale thereof,including without limitation,any non-judicial sale permitted by the terms of the controlling security agreements, as Lender in its discretion may determine; (e) 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; end (f)determine how, when and what application of payments and credits shall be made on any other indebtedness owing by such other Borrower. 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 mode. 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. R HEREBY I I FIREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OTHE PCONFESSION ROTHONOTARYFORUCD ERKNOF ANT. YCOURTN 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 AND ALL AMOUNTS OE EXPENDED OR ADVANCED BY FOR THE ENTIREP EAL NDER RELATINGBALANCE OFHIS TONOTE ANY COLLA ERALAND ALLCRUED SECUR NG THIS NOTE,TOGINTEREST,LATERETHER GES WITHANDNCOSTS OF SUIT,AND AN ATTORNEY'S COMMISSION OF TEN PERCENT 110%)OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($5001 ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY;AND FOR SO DOING,THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY,BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS NOTE; EACH BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. EACH BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. ewER: Com' ( ii (Seal) (seat) sell C. In in ALaDin el cin Signed,acknowledged-End deli red in the presence of: X Witness X Whnass 4f[�MO[,n�NO.vv.iO1.00AW Cen.NrinE ir,mbt Sr,nN�,u,s.[YID.NOG •n,IrM,e„wC•M N:1VlNO,A09iLLM1PNIC TWitIN _ EXHIBIT " F" ALLONGE This Allonge is attached and made a part of that certain evidence of indebtedness dated September 19,2006,together with all renewals,extensions and modifications,if any,executed and given by Russell K. Dingeldein and Laurie J.Dingeldein in the original amount of$230,000.00. It is to be read together with and is hereby incorporated by reference in the attached instrument and constitutes an integral part thereof. Pay to the order of Acquired Capital H, L.P., its successors and assigns as is, where is, with all faults and without recourse and without representations or warranties of any land,whether express or implied, oral or written, except as provided in that certain Loan Purchase and Sale Agreement dated June 21, 2012. Executed this day of September, 2012. Fulton Bank By: - Brad A. Hreb Authorized Signatory EXHIBIT "G " . I I� �'I � j I I� I ►! I I i�, I',, '� � i Ij ,I I N �► .►I I I II I I n 1�11�8�IIil�ll191111�1 jil�l l�llll�llll�ll lll!(Illll��lll�l lllll�liIGlaII�III,lIIII�I�l1�111111�61I►►lIIIIII�►Ilall� a. '00001-9708275-90020"0010031057* PROMISSORY NOTE �y7f orrower: The Dingeldein Bakery,.Inc. Lender: Fulton Bank 316 Bridge Street New Cumberland Office New Cumberland,PA 1V070 One Penn Square Corporate Address ' Lancaster,PA 17602_ Principal Amount: $69,000.00 Date of Note: March 17, 2009 PROMISE TO PAY..The Dingeldein Bakery, Inc.("Borrower")promises to pay to Fulton Bank("Lender"),or order,in lawful money of the United States of America,the principal amount of Sixty-nine Thousand&001100 Dollars($69,000.00),together with interest on the unpaid principal balance from March 17,2009,calculated as described in the"INTEREST CALCULATION METHOD"paragraph using an interest rate of 7.500% • per annum based on a year of 360 days, until paid in full. The interest rate may change under the terms and conditions of the "INTEREST AFTER DEFAULT"section. PAYMENT. Borrower will pay this loan in accordance with the following payment schedule: 59 consecutive monthly installments on amount of principal and interest in the amount of$560.57 each,beginning on April 17, 109 and continuing on the 17th day of each month t.hereafter. One final payment of all unpaid principal and all unpaid accrued interest shall be due and payable on March 17,2014. Unless otherwise agreed or required by applicable law, payments will be applied,first to any accrued unpaid interest;then to principal;then to any late charges;and then to any unpaid collection costs. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. INTEREST CALCULATION METHOD. Interest on thtis Note is computed on a 365/360 basis;that is,by applying the ratio of the interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. All interest payable under this Note is computed using this method. PREPAYMENT PENALTY. Upon prepayment of this N(tte,Lender is entitled to the following prepayment penalty: The Borrower shall have the right prepay the whole or any part of the principal and interest hereunder provided that: (a)at the time of prepayment no event of default '�;re-�•:tier shall have occurred; (b) any prepayment during any fixed rate period shall be accompanied by a prepayment penalty equal to two •;'%:!"-scent of the amount; (c)any partial prepayment shall be applied to the unpaid principal balance,and no prepayment shall reduce the -rmou•:.: of the scheduled installments nor relieve the'Borrower from paying the scheduled installments on each due date, until the entire 'indebtedness is paid. Notwithstanding anything to the contrary set forth above,the prepayment penalty will not be charged if up to twenty (20%)percent of the original principal amount is prepaid from internally generated funds within any loan year. The term "loan year"as used herein is defined as any period of one year commencing (in the date hereof or on any anniversary of such date. 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: Fulton Bank, New Cumberland Office,One Penn Square,Corporate Address, Lancaster,PA 17602. LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 5.000% of the unpaid portion 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 5.000 percentage points. 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: ?,mment Default. Borrower fails to make any payment when due under this Note. Wier Defaults. Borrower fails to comply with or to perform any other term,obligation,covenant or condition contained in this Note or in e;•y of the related documents or to comply with or to perform any term,obligation,covenant or condition contained in any other agreement bstween 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 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 • ,, no 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 band 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. Et-rats Affecting Guarantcr. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any 3rantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness fenced by this Note. (.,-.ange In Ownership. Any change in ownership of twenty-five percent(25%)or more of the common stock of Borrower. (: Alverse 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 reasonable attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including reasonable attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction); and appeals. If not prohibited by applicable law,Borrower also will pay any court costs,in addition to all other sums provided by law. PROMISSORY NOTE Loan No:0001-9708275-9002 (Continued) Page 2 • �►. JURY WAIVER. Lender and Borrowe r hereby waive the right to any jury trial in any action,proceeding,or counterclaim brought by either.L-eiidf:e; or Borrower against the other. GOVERNING LAW. This Note will be governed by federal law applicable to Lender arid,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 perm°tted 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 r tot include any IRA or Keogh accounts,or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender,to the a xtent permitted by applicable law,to charge or setoff all sums owing on the indebtedness against any and all such accounts,and,at Lender's opt ion,to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights provided in this paragraph. COLLATERAL. Borrower acknowledges this Note is secured by Mortgage on 314-316 Bridge Street,Borough of New Cumberland.Cumberland County,PA; Accounts receivable,inventory,general intangibles,machinery and equipment pledged by Borrower; Guaranties of Russell K.Dingeldein and Laurie J.-Dingeldein. CROSS DEFAULT.Any event of default under an Y loan due and owing to Lender by Borrower, at any time, shall constitute an event of default under all loans due and owing to Lender by Borrov4,er. SUCCESSOR INTERESTS. The terms of this Noi a shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns,and shall inure to the benefit of Lender and its successors and assigns. GENERAL PROVISIONS. If any part of this Note canrtot be enforced,this fact will not affect the rest of the Note. Lender may delay or:forge, enforcing any of its rights or remedies under this Note without Rising them. Borrower and any other person who signs,guarantees or eriuursgG - this Note,to the extent allowed by law,waive presentm'ent,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 partiets 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 IFIREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERIC OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE ANLL WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE O,F THIS NOTE AND ALL ACCRUED INTEREST,LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATONG 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 HUMORED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY;AND FOR SO DOING,THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY,BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HI=REBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JIJDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PR'OVISION 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. BORROWER AGREES.T.O.THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: THE DINID BAKERY,INC. -By, -�C7C�-eiL.� (Seal) By. , (Seal) Russell K. Din cin, President of The Dingeldein Lauriede- Dingeldein, Vice President of The Bakery,Inc. Dingel in Bakery,Inc. - ATTEST: I Corporate Seal Secretary or Assistant Secretary - c• U:FR RqO✓.Oy.v..e.r.m.aw ean,.,�eY+a fwmRM].Mean.,a..t]]r,:V O]. iJ Ry,n,.R.,u..d. .Rw 0:11.0.1rofAV114A0]4I[TI,.>ct]e ---- i1. :1 1j,J" EXHIBIT " H" ALLONGE This Allonge is attached and made a part of that certain evidence of indebtedness dated March 17,2009,together with all renewals, extensions and modifications,if any, executed and given by The Dingeldein Bakery,Inc. in the original amount of$69,000.00. It is to be read together with and is hereby incorporated by'reference in the attached instrument and constitutes an integral part thereof. Pay to the order of Acquired Capital 1I,L.P.,its successors and assigns as is,where is,with all faults and without recourse and without representations or warranties of any kind,whether express or implied,oral or written, except as provided in that certain Addendum to Loan Purchase and Sale Agreement dated January 18, 2013. Executed this J3 day of January, 2013. Fulton Bank By: , Brad A. Hre- r Authorized Signatory EXHIBIT " I " V IIIL,ii�all��lll�lllll�l�ll(III(IaIII�IIIIII��IVI�1111�6��11�I��,Ii�ll,1�1,111��11�111,16��IINIIIII�J G►�III�(�I�IIIIIII� '00001-9708275-900200060031057` COMMERCIAL GUARANTY Rorrower: The Dingoldein Bakery,Inc. Lender: Fulton Bank 316 Bridge Street New Cumberland Office New Cumberland,PA 17070 One Penn Square Corporate Address Lancaster,PA 17602 larantor: Russell K.Dingeldein Laurie J.Dingeldein 622 Strifes Road Harrisburg,PA 17111 -N ',MNG GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionally •Jarz;.sues full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the performance and discharge of all =urro�-','s obligations under the Note and the Related Documents. This is a guaranty of payment and performance and not of collection,so ender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against anyone else obligated'to Jay the Indebtedness or against any collateral securing the Indebtedness,this Guaranty or any other guaranty of the Indebtedness. Guarantor ,ill 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 Seduction or counterclaim, and will otherwise perform Borrower's obligations under the Note and Related Documents. Under this Guaranty, 3uarantor's liability is unlimited and Guarantor's obligations are continuing. INDEBTEDNESS. The word"Indebtedness"as used in this Guaranty means all of the principal amount outstanding from time to time and at any one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, reasonable attorneys'fees, arising from any and all debts,liabilities and obligations of every nature or form,now existing or hereafter arising or acquired, that Borrower individually orcollectively or interchangeably with others,owes or will owe Lender. "Indebtedness"includes,without limitation, loans, advances, debts,overdraft indebtedness, credit card indebtedness, lease obligations, liabilities and obligations under any interest rate protection agreements or foreign currency exchange agreements or commodity price protection agreements, other obligations, and liabilities of Borrower,and any present or future judgments against Borrower,future advances,loans or transactions that renew, extend,modify,refinance, consolidate or substitute these debts, liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by their terms or acceleration;absolute or contingent; liquidated or unliquidated;determined or undetermined;direct or indirect;primary or secondary in iature or arising from a guaranty or surety; secured or unsecured; joint or.several or joint and several; evidenced by a negotiable or ton-negotiable instrument or writing; originated by Lender or another or others; barred or unenforceable against Borrower for any reason whatsoever;for any transactions that may be voidable for any reason(such as infancy, insanity,ultra vires or otherwise); and originated then educed or extinguished and then afterwards increased or reinstated. Lender presently holds one or more guaranties,or hereafter receives additional guaranties from Guarantor,Lender's rights under all guaranties hall h:.cumulative. This Guaranty shall not (unless specifically provided below to the contrary)affect or invalidate any such other guaranties. ••.'ar`•:: -:r's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties. )N: 'AiNG GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND UNCT iAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR `iEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE NDEBTEDNESS 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 .3ALANCE FROM TIME TO TIME. DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender,or any notice to Guarantor or to Borrower, and will continue in full force until all the Indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have been performed in full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to Lender,by certified mail, at Lender's address listed above or such other place as Lender may designate in writing. Written revocation of this Guaranty will apply only to new Indebtedness created after actual receipt by Lender of Guarantor's written revocation. For this purpose and without limitation, the term "new Indebtedness" does not include the Indebtedness which at the time of notice of revocation is contingent, unliquidated, undetermined or not due and which later becomes absolute, liquidated, determined or due. For this purpose and without limitation, "new Indebtedness" does not include all or part of the Indebtedness that is: incurred by Borrower prior to 'evocation;incurred under a commitment that became binding before revocation; any renewals,extensions,substitutions,and modifications of ':he Indebtedness. This Guaranty shall bind Guarantor's estate as to the Indebtedness created both before and after Guarantor's death or ncapacity, regardless of Lender's actual notice of Guarantor's death. Subject to the foregoing,Guarantor's executor or administrator or other .egal representative may terminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect. ielease of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this ­3uaran�r. A revocation Lender receives from any one or more Guarantors shall not affect the liability of any remaining Guarantors under this ivaral;5,�. It is anticipated that fluctuations may occur in the aggregate amount of the Indebtedness covered by this Guaranty, and Guarantor c'r y acknowledges and agrees that reductions in the amount of the Indebtedness,even to zero dollars(50.001, shall not constitute a myon of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and assigns so long as any of the -idebL::ness remains unpaid and even though the Indebtedness may from time to time be zero dollars($0.00). .3UARA.NTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice or Semand and without lessening Guarantor's liability under this Guaranty,from time to time: (A) prior to revocation as set forth above,to make one or more additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend 'additional credit to Borrower; (B) to alter,compromise,renew,extend,accelerate,or otherwise change one or more times the time for payment or other terms of the Indebtedness or any part of the Indebtedness, including increases and decreases of the rate of interest on the Indebtedness;extensions may be repeated and may be for longer than the original loan term; (C) to take and hold security for the payment of this Guaranty or the Indebtedness,and exchange,enforce,waive,subordinate,fail or decide not to perfect, and release any such security,with or without the substitution of new collateral; (D) to release,substitute,agree not to sue,or deal with any one or more of Borrower's sureties, an or other guarantors on any terms or in any manner Lender may choose; (E) to determine how, when and what application of payments and credits shall be made on the Indebtedness; (F) to apply such security and direct the order or manner of sale thereof,including without limitation,any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as lender in its discretion may determine; (G) to sell,transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this Guaranty in whole or in part. ,31JARA.NTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) -no representations or agreements of any kind have been made to Guarantor which would fimit or qualify in any way the terms of this Guaranty; (B) this Guaranty is - .executed at Borrower's request and not at the request of Lender; (C) Guarantor has full power,right and authority to enter into this Guaranty; :D) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law,regulation,court decree or order applicable to Guarantor; (E) Guarantor has not and will not,without -''he pri'- written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of '4uarP`!nr's assets,or any interest therein; (F) upon Lender's request,Guarantor will provide to Lender financial and credit information in form :ce'i"'.'le to Lender, and all such financial information which currently has been,and all future financial information which will be provided to ,'.;nC- and will be true and correct in all material respects and fairly present Guarantor's financial condition as of the dates the financial Jform:.ion is provided; (GI no material adverse change has occurred in Guarantor's financial condition since the date of the most recent :inancil statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's financial condition; (H) .io litigation,claim, investigation,administrative proceeding or similar action(including those for unpaid taxes) against Guarantor is pending or threatened; (1) Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and (J) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events,or circumstances which might in any way affect Guarantor's risks under this Guaranty,and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower. GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following: Annual Statements. As soon as available,but in no event later than one-hundred-twenty (120) days after the end of each fiscal year, COMMERCIAL GUARANTY Loan No: 0001-9708275-9002 (Continued) 'r Page 2 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-twen[Y(720) days after the applicable filing date for the tar, 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 money or to extend other credit to Borrower; (8) to make any presentment, nonpayment of the Indebtedness or of any nonpayment related to any collateral,or notice of any action or nonaction onthe)clu part o Be of any' protest, demand, or notice of continue lendincl any kind, including notice Borrower.,any Lender, any surety,endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of ew or additional n loans or obligations; (C) to resort for payment or to proceed directly or at once against any person,including Borrower or any other guarantor; (D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to ivr: 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-witt; any other applicable provisions of the Uniform Commercial Code; F g act or omission of any kind,or at any time,with respect to any matter whatsoever. other remedy within Lender's power;or (G) to commit anv Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including,but not limited to, any rights or defenses arising by reason of (A) any "one action" or "anti-deficiency" law or any other law which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action; either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting,qualifying, or discharging the Indebtedness; (C) any disability or Other defense of Borrower,of any other guarantor,or of any other person,or by reason of the cessation of Borrower's liability from any cause whatsoever,other than payment in full in legal tender, of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness; (E) any statute of limitations, if at any time any action or suit brought by Lender against Guarantor is commenced,there is outstanding Indebtedness which is not barred by any applicable statute of limitations; or (F) any defenses given to guarantors at law or in equity other than actual payment and performance of the Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise,or by any third party,on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty. Guarantor further waives and agrees not to assert or claim at any time any deductions tD the amount guaranteed under this Guaranty for anv 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. COLLATERAL. This Guaranty is secured by Mortgage on 314-316 Bridge Street,Borough of New Cumberland, Cumberland County,PA.. 1 RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open in the future. However,this does not include any IRA or Keogh account ,or any trust accounts for which setoff would be s 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 evend of insolvency and consequent liquidation of the assets of Borrower, through bankruptcy, by an assignmept 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 right, 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 Lencier's costs and expenses, including Lender's reasonable attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs arnd expenses of such enforcement. Costs and expenses include Lender's reasonable attorneys' fees and legal expenses whether or not there`is a lawsuit,including reasonable attorneys'fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate ,any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all court costst and such additional fees as may be directed by the court. Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the Provisions of this Guaranty. Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to the extent not preempted by federal law,the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attorney with respect to this Guaranty;the Guaranty'fully reflects Guarantor's intentions and parol evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifie.s and holds Lender harmless from all losses, claims,damages,and costs(including Lender's attorneys'fees)suffered or incurred by Lender aos a result of any breach by Guarantor of the warranties,representations and agreements of this paragraph. interpretation. In all cases where there is more than one Borrower or Guarantor,then all words used in this Guaranty in the singular shall. be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectively shall mean all and any one or more of them. The words"Guarantor," "Borrower,"and "Lender"include the heirs,successors, assigns, and transferees of each of them. If a court finds that any provision of this Guaranty is mot 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 Gua ranty shall be givenin writing, and, except for revocation notices by Guarantor, shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, oar, if mailed, when deposited in the United States mail,as first class,certified or registered mail postage prepaid,directed to the addresses shbwn n ear the beginning of this Guaranty. All revocation notices by Guarantor shall be in writing and shall be effective upon delivery to Lender as provided in the section of this Guaranty entitled"DURATION OF GUARANTY." Any party may change its address for notices under this Guaranty by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise;provided by applicable law,if there is more than one Guarantor,any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors. Loan No: 0001-9708275-9002 COMMERCIAL GUARANTY (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. Successors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal representatives,successors,and assigns,and shall be enforceable by Lender and its successors and assigns. W:lve Jury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either .. Lc:,-fer or Guarantor against the other. :Flt t ':SNS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically . .ateu •the contrary,all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms sed in,he singular shall include the plural,and the plural shall include the singular,as the context may require. Words and terms not othorwise .efined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word"Borrower"means The Dingeldein Bakery,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 Russell K. Dingeidein and Laurie J. Dingeldem,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. ONFF^TION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE :,0:..:NOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME :R .kRANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER .JDGP.•_NT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE HARGIS AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE NOEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID JRINCIPAL BALANCE AND ACCRUED INTEREST FOR WHICH JUDGMENT OR JUDGMENTS ONE OR MORECOLLECTION, EX CUTONS MAY ISSUE I AMED ATE Y SAN FOR SOEDOING, ED DOLLARS($500) TNTHIS 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 :N THE SECTION TITLED"DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY UYNDER IS NECESSARY TO MAKE THIS GUARANTY .FFECTIVE. THIS GUARANTY IS DATED MARCH 17,2009. THIS GUARANTY IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS GUARANTY IS A,ND SHALL CONSTITUTE AND HAVE THE EFFECT :JF A SEALED INSTRUMENT ACCORDING TO LAW. .9 SUARA`1TOR: Russ g ingei rn (Seal) X /� j�� (Seal) ( Laurie in ein Signed,aj✓/cn.wlee ged anddelivered M the presence of: Witness X Witness L °A° cew wn.,,e ." s.w„w,..w..,en.:ma. ..wp,,,.n...",e, .r•o.nncoMucmwcto.rc m +cve , .r: ASSIGNMENT OF COMMERCIAL GUARANTY This Assignment of Commercial Guaranty is made as of January 23,2013 by FULTON BANK' ("Assignor") whose address is One Penn Square, Lancaster, PA 17602, for good and valuable consideration, in favor of ACQUIRED CAPITAL II, L.P. ("Assignee"), whose address is 4100 Greenbriar Drive,Suite 120,Stafford,TX 77477,pursuant to a certain Addendum to Loan Purchase and Sale Agreement between, inter alia, Seller and Purchaser, dated January 18, 2013, which is hereby incorporated by reference("Agreement"). All capitalized terms used but not defined herein are defined in the Agreement. Seller hereby assigns,transfers and sets over to Purchaser,its successors and assigns,WITHOUT RECOURSE, REPRESENTATION OR WARRANTY OF ANY NATURE WHATSOEVER, WHETHER EXPRESSED OR IMPLIED, except and only to the extent otherwise provided in the , Agreement,all Seller's right,title and interest in and to the Commercial Guaranty dated March l 7,2009 f by the Dingeldein Bakery,Inc. executed by Russell K.Dingeldein in favor,of Fulton Bank. FULTTOON,B�ANK By. a�,: Bra3A.Hrebenar Authorized Signatory STATE OF TEXAS ) COUNTY OF FORT BEND ) BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, personally appeared Brad A.Hrebenar known to me to be the person whose name is subscribed to the foregoing instrument,as Authorized Signatory of Fulton Bank and acknowledged to me that he executed the same as the act of Fulton Bank, for the purposes and. consideration therein expressed, and in the capacity therein stated. Given under my hand and seal of office on this the)3-"Gday of January, 2013. Notary Public My commission expires: Y.zz-poi 7 `�.Y'F116iC ANN GOOD MY COMMISSION EXPIRES August 22,2013 v�".FT.9C(iSJ Ronny R Anderson Sheriff Jody S Smith Chief Depu Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY F// 7A --E~ ~ '/CE '`'� PROTHCQO TA - .1 trminherr 7A/6NOV 20 �� 3:� /1 �'',` CUMBER/A�nrn/'*�`' OFFICE wrnew�n� PENNSYLVANIA'°� / y Acquired Capital 11, LP vs Russell KDingaldan(et ai) Case Number 2014-6574 SHERIFF'S RETURN OF SERVICE 11/13/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Russell K Dingeldein, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Dauphin County, Pennsylvania to serve the within Comptaint in tvlortgage Foreclosure according to Iaw. 11/13/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Laurie J Dingeldein, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Dauphin County, Pennsylvania to serve the within Complaint in Mortgage Foreclosure according to Iaw. 11/17/2014 09:03 AM - The requested Complaint in Mortgage Foreclosure served by the Sheriff of Dauphin County upon Sarah Din|d in.adu1tdaughher.vxhoocoep8edhorLauhaJDingoidein.at822SthhsoRood. Harrisburg, PA 17111 Jack Lotwick, Sheriff, Return of Service attached to and made part of the within record. 11/17/2014 09:03 AM - The requested Complaint in Mortgage Foreclosure served by the Sheriff of Dauphin County upon Sarah Din|d in.adu|tdaughta,.vvh000ueph*dhzrRu$oeUKDinge|dein.at622ShihesRond. Harrisburg, PA 17111. Jack Lotwick, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $53.00 SO ANSWERS, November 19, 2014 RnNIVRANDERSON, SHERIFF CounlySuile Sheriff, Teleasoft. Inc. Shelley Ruhl Real Estate Deputy Matthew L. Owens Solicitor Commonwealth of Pennsylvania County of Dauphin Dauphin County 101 Market Street Harrisburg, Pennsylvania 17101-2079 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Jack Duignan Chief Deputy Michael W. Rinehart Assistant Chief Deputy ACQUIRED CAPITAL II, LP VS RUSSELL K. DINGELDEIN Sheriffs Return No. 2014-T-2979 OTHER COUNTY NO. 2014-6574 And now: NOVEMBER 17, 2014 at 9:03:00 AM served the within COMPLAINT IN MORTGAGE FORECLOSURE upon RUSSELL K. DINGELDEIN by personally handing to SARAH DINGELDEIN * 1 true attested copy of the original COMPLAINT IN MORTGAGE FORECLOSURE and making known to him/her the, contents thereof at 622 STRITES ROAD HARRISBURG PA 17111 * DAUGHTER OF DEFENDANT WHO ACCEPTED AS ADULT PERSON IN CHARGE AT TIME OF SERVICE. Sworn and subscribed to before me this 18TH day of November, 2014 COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Karen M. Hoffman, Notary Public City of Harrisburg, Dauphin County My Commission Expires January 8, 2018 So Answers, By Depu Sheriff Deputy: JESSICA KARL Sheriffs Costs: $66.5 11/14/2014 - fit Shelley Ruhl Real Estate Deputy Matthew L. Owens Solicitor Commonwealth of Pennsylvania County of Dauphin Dauphin County 101 Market Street Harrisburg, Pennsylvania 17101-2079 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Jack Duignan Chief Deputy Michael W. Rinehart Assistant Chief Deputy ACQUIRED CAPITAL II, LP VS RUSSELL K. DINGELDEIN Sheriffs Return No. 2014-T-2979 OTHER COUNTY NO. 2014-6574 And now: NOVEMBER 17, 2014 at 9:03:00 AM served the within COMPLAINT IN MORTGAGE FORECLOSURE upon LAURIE J. DINGELDEIN by personally handing to SARAH DINGELDEIN * 1 true attested copy of the original COMPLAINT IN MORTGAGE FORECLOSURE and making known to him/her the contents thereof at 622 STRITES ROAD HARRISBURG PA 17111 * DAUGHTER OF DEFENDANT WHO ACCEPTED AS ADULT PERSON IN CHARGE AT TIME OF SERVICE. Sworn and subscribed to before me this 18TH day of November, 2014 COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Karen M. Hoffman, Notary Public City of Harrisburg, Dauphin County My Commission Expires January 8, 2018 So Answers, AaA/C__ By Depu Sheriff Deputy: JESSICA KARL Sheriffs Costs: $66.5 11/14/2014 CALDWELL & KEARNS, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766/Fax Attorneys for Defendants c' -gip Jessica E. Mercy, Esquire ju crcy t@cklegal.net ACQUIRED CAPITAL II, LP, v. IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA RUSSELL K. DINGELDEIN & LAURIE J. DINGELDEIN, Defendants. NO. 14-6574 Civil NOTICE TO PLEAD To: Acquired Capital II, LP c/o Amar A. Agrawal, Esquire Eisenberg, Gold, Cettei & Agrawal, P.C. 1040 North Kings Highway, Suite 200 Cherry Hill, NJ 08034 You are hereby advised to file a written response to the en New Matter to Plaintiffs Complaint within twenty (20) days from be entered against you. Dated: 12/16/14 By: closed Defendants' Answer with service hereof, or judgment may CALDWELL & KEARNS, P.C. a E. Mercy, 1 North Front eet Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendants e — I.D. # 206405 CALDWELL & KEARNS, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766/Fax Attorneys for Defendants Jessica E. Mercy, Esquire jmercy@cklegal.net ACQUIRED CAPITAL II, LP, IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA v. RUSSELL K. DINGELDEIN & LAURIE J. DINGELDEIN, Defendants. NO. 14-6574 Civil DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW comes, Defendants Russell K. Dingeldein and Laurie J. Dingeldein (hereinafter "Defendants"), by and through their attorneys, Caldwell & Kearns, P.C., to file the following Answer with New Matter to Acquired Capital II, LP's (hereinafter "Plaintiff') Complaint by averring as follows: PARTIES 1. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and the averments are therefore specifically denied, with strict proof thereof demanded at trial. 2. Admitted in part and denied in part. It is admitted that Defendants are Russell K. Dingeldein and Laurie J. Dingeldein and that their address is 622 Strites Road, Harrisburg, PA 17111. By way of further denial, the remaining averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. In addition, Exhibit A that Plaintiff references is a writing which 1 speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. 3. Admitted. FIRST COUNT 4. Denied. The 2006 Bakery Note that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the Allonge that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. 5. Denied. The Commercial Guaranty that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 6. Denied. The $240,000.00 Mortgage that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. In addition, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and the averments are therefore specifically denied, with strict proof thereof demanded at trial. 2 7. Denied. Exhibit A that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 8. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 9. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 10. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, the $240,000.00 Mortgage that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. 11. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, after reasonable investigation, Defendants are without 3 knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and the averments are therefore specifically denied, with strict proof thereof demanded at trial. In addition, since the time that the $240,000.00 Mortgage was allegedly assigned to Plaintiff, Defendants have not received any statements or other documents from Plaintiff or any other entity evidencing the amount due on the $240,000.00 Mortgage. 12. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. WHEREFORE, Defendants Russell K. Dingeldein and Laurie J. Dingeldein respectfully request that this Honorable Court dismiss Plaintiff Acquired Capital II, LP's Complaint and enter judgment in their favor and against Plaintiff Acquired Capital II, LP, together with any costs associated therewith. SECOND COUNT 13. Denied. The Dingeldein Note that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiffs summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the Allonge that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiffs summaries, conclusions or characterizations made regarding that writing are specifically denied. 14. Denied. The $230,000.00 Mortgage that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiffs summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the 4 averments are specifically denied, with strict proof thereof demanded at trial. In addition, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and the averments are therefore specifically denied, with strict proof thereof demanded at trial. 15. Denied. Exhibit A that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 16. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 17. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 18. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, the $230,000.00 Mortgage that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. 5 19. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and the averments are therefore specifically denied, with strict proof thereof demanded at trial. In addition, since the time that the $230,000.00 Mortgage was allegedly assigned to Plaintiff, Defendants have not received any statements or other documents from Plaintiff or any other entity evidencing the amount due on the $230,000.00 Mortgage. 20. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. WHEREFORE, Defendants Russell K. Dingeldein and Laurie J. Dingeldein respectfully request that this Honorable Court dismiss Plaintiff Acquired Capital II, LP's Complaint and enter judgment in their favor and against Plaintiff Acquired Capital II, LP, together with any costs associated therewith. THIRD COUNT 21. Denied. The 2007 Bakery Note that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the Allonge that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. 6 22. Denied. The Commercial Guaranty that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 23. Denied. The $69,000.00 Mortgage that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. In addition, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and the averments are therefore specifically denied, with strict proof thereof demanded at trial. 24. Denied. Exhibit A that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 25. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that 7 a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 26. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 27. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, the $69,000.00 Mortgage that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. 28. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and the averments are therefore specifically denied, with strict proof thereof demanded at trial. In addition, since the time that the $69,000.00 Mortgage was allegedly assigned to Plaintiff, Defendants have not received any statements or other documents from Plaintiff or any other entity evidencing the amount due on the $69,000.00 Mortgage. 29. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that 8 a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. WHEREFORE, Defendants Russell K. Dingeldein and Laurie J. Dingeldein respectfully request that this Honorable Court dismiss Plaintiff Acquired Capital II, LP's Complaint and enter judgment in their favor and against Plaintiff Acquired Capital II, LP, together with any costs associated therewith. NEW MATTER 30. Defendants hereby incorporate by reference Paragraphs 1 through 29 of this Answer with New Matter as if fully set forth herein. 31. Plaintiff's Complaint fails to state a claim against Defendants for which releif can be granted. 32. Plaintiff's claims may be barred, in whole or in part, by the doctrines of waiver and estoppel. 33. Plaintiff's claims may be barred, in whole or in part, by the doctrine of laches. 34. Plaintiff's claims may be barred, in whole or in part, by the doctrine of unclean hands. 35. Plaintiff's claims may be barred, in whole or in part, by its failure to comply with conditions precedent. 36. Plaintiff failed to provide appropriate and required notices under the Mortgages in question. WHEREFORE, Defendants Russell K. Dingeldein and Laurie J. Dingeldein respectfully request that this Honorable Court dismiss Plaintiff Acquired Capital II, LP's Complaint and enter judgment in their favor and against Plaintiff Acquired Capital II, LP, together with any costs associated therewith. Dated: 12/16/14 Respectfully submitted, CALDWELL & KEARNS, P.C. By: J 10 ca E. Mer uire — I.D. # 206405 3631 North Fronn Street Harrisburg, PA 17110 (717) 232-7661 Attorneyfor Defendants Dec. 16. 2014 10:49AM No. 0236 P. 3 VERIFICATION I, Russell K. Dingeldein, verify that the statements contained in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities Dec. 16. 2014 10:49AV1 No. 0236 P. 2 VERIFICATION I, Laurie J. Dingeldein, verify that the statements contained in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities, Date: /.2-4//:3-- ACQUIRED CAPITAL II, LP, IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA v. RUSSELL K. DINGELDEIN & LAURIE J. DINGELDEIN, Defendants. NO. 14-6574 Civil CERTIFICATE OF SERVICE I, Jessica E. Mercy, attorney for the Defendants in the above -captioned matter, certify that I this day served a copy of the foregoing Answer with New Matter upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Amar A. Agrawal, Esquire Eisenberg, Gold, Cettei & Agrawal, P.C. 1040 North Kings Highway, Suite 200 Cherry Hill, NJ 08034 Dated: 12/16/14 By: CALDWELL & KEARNS, P.C. Je€a E. Mercy, e — I.D. # 206405 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendants `i Anjar A. Agrawal, Esquire PA Attorney I.D. No. 308159 Eisenberg, Gold, Cettei & Agrawal, P.C. 1040 North Kings Highway, Suite 200 Cherry Hill,New Jersey 08034 Tel: (856) 330-6200 Fax: (856) 330-6207 Email: aagrawal@egclawfirm.com Attorney for Plaintiff File No.: AF-270-A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA CIVIL ACTION-LAW Acquired Capital II, LP, Plaintiff, Vs. No. 2014-06574 Russell K. Dingeldein & Laurie J. Dingeldein, Defendant(s). PLAINTIFF'S REPLY TO NEW MATTER IN DEFENDANT'S ANSWER Reply to New Matter 30. Plaintiff hereby incorporates all allegations set forth in its Complaint as if fully set forth herein. 31. The averments of Paragraph 31 in Defendants' New Matter are denied. Defendant fails to state any facts and pleads general averments. By way of further response, averments in this paragraph are conclusions of law to which no response is required. 32. The averments of Paragraph 31 in Defendants' New Matter are denied. Defendant fails to state any facts and pleads general averments. By way of further response, averments in this paragraph are conclusions of law to which no response is required. rvia-..o-..,...xrsa++.Y'iwarys�'.�++z>: sae'..w.-s'rw.x.✓.w'ee?a.>�Y.+�*+ws=�..-:_+.:x.:.--e._<�so=....sfl^£+.r ..._u_ a.m�+temr,,. �.�-_„g, .ew., .e.,°e�.r, v 33. The averments of Paragraph 31 in Defendants' New Matter are denied. Defendant fails to state any facts and pleads general averments. By way of further response, averments in this paragraph are conclusions of law to which no response is required. 34. The averments of Paragraph 31 in Defendants' New Matter are denied. Defendant fails to state any facts and pleads general averments. By way of further response, averments in this paragraph are conclusions of law to which no response is required. 35. The averments of Paragraph 31 in Defendants' New Matter are denied. Defendant fails to state any facts and pleads general averments. By way of further response, averments in this paragraph are conclusions of law to which no response is required. 36. Denied. WHEREFORE, the Plaintiff demands Judgment against Defendants: on Count One of the Complaint for foreclosure in the amount of$221,828.43 as of November 5, 2014, on Count Two of the Complaint for foreclosure in the amount of$209,109.72 as of November 5, 2014, and on Count Three of the Complaint for foreclosure in the amount of $68,279.69 as of November 5, 2014 for a total Judgment of$499,217.84 as of November 5, 2014, together with continuing interest at the daily rate of$81.34, plus any advances for tax and insurance or other allowable charges, and costs of suit. EISENBERG, GOLD, CETTEI & AGRAWAL, P.C. Attorneys for Plaintiff, Acquired Capital II, LP By: Amar A. Agrawal, Esquire (308159) Date: a ao�5 VERIFICATION I verify that the facts set forth in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 PA C.S.A. Sec. 4904 relating to unsworn falsification to authorities. Walter Hanson Amar A. Agrawal, Esquire PA Attorney I.D. No. 308159 Eisenberg, Gold, Cettei & Agrawal, P.C. 1040 North Kings Highway, Suite 200 Cherry Hill,New Jersey 08034 Tel: (856) 330-6200 Fax: (856) 330-6207 Email: aagrawal@egclawfirm.com Attorney for Plaintiff File No.: AF-270-A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA CIVIL ACTION-LAW Acquired Capital II, LP, Plaintiff, vs. No. 2014-06574 Russell K. Dingeldein & Laurie J. Dingeldein, Defendant(s). CERTIFICATE OF SERVICE I, Amar A. Agrawal, Esquire, caused to mail to the following Defendants at their last known addresses listed below a copy of Plaintiff's Reply to New Matter in Defendants' Answer by way of certified mail, return receipt requested and regular mail: Jessica E. Mercy, Esquire CALDWELL & KEARNS, P.C. 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendants, Russell K Dingeldein &Laurie J. Dingeldein I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. /[-I— P--�J Dated: 1 J 6 I x,015 Amar A. Agrawal, Esquire(308159)