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HomeMy WebLinkAbout06-1126 .. MID PENN BANK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. !lIp' /1;;' ~ CwJ v. JOEY V'S, INC., d/b/a JOEY'S IT ALlAN GRILL, and JOEY V. SULLENBERGER, a/k/a JOSEPH V. SULLENBERGER,: Defendants CONFESSION OF JUDGMENT Pursuant to the authority contained in the Warrant of Attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against the Defendant as follows: Principal: Interest: Late Charges: Attorneys Fees and Legal Expenses: $49,205.36 $ 1,337.67 (Plus $12.30 per diem) $ 67.85 $ 500.00 Total: $51, II 0,88 plus continuing interest from February 15,2006, at the rate of$I2.30 per diem, continuing late charges, continuing costs, and continuing attorneys fees. By: it I , Es lr (PA AttyNo. 29929) . Knigh , E quire (P A Atty. No. 87365) 2320 orth Second Street Harrisburg, PA 171\0 Telephone: (717) 238-6570 Attorneys for Defendants i Date: ,'. '" 1/, ,2006 '-;.1. ;".\ ------ , () " Cunningham & Chemicoff, P,C. Marc W. Witzig, Esquire P A Attorney Ident. No. 29929 Kelly M. Knight, Esquire PA Attorney Ident. No. 87365 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 mwitziglq)cclawoc.com kkni ghtialcclawoc .com Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA J{}{)&.II~(y : NO. MID PENN BANK, v, JOEY V'S, INe., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, a/k/a JOSEPH V. SULLENBERGER,: Defendants COMPLAINT FOR CONFESSION OF JUDGMENT NOW COMES the Plaintiff, Mid Penn Bank, by and through its counsel, Cunningham & Chemicoff, P .C" and states it Complaint for Confession of Judgment as follows: l. Plaintiff, Mid Penn Bank (the "Plaintiff' or the "Bank") is a Pennsylvania banking institution with a principal place of business located at 349 Union Street, Millersburg, Dauphin County, Pennsylvania 1706l. . . 2. Defendant, Joey V's, Inc., d/b/a Joey's Italian Grill ("Borrower") is a Pennsylvania corporation with a principal place of business located at 433 North 21" Street, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Defendant, Joey V. Sullenberger (the "Guarantor") is an adult individual believed to be residing at 481 Sample Bridge Road, Enola, Cumberland County, Pennsylvania 17025, 4. Guarantor also is known as Joseph V. Sullenberger. 5. On or about May 10,2005, Borrower executed a Promissory Note in favor of the Bank in the initial principal amount of $50,000.00 (the "Note"). A true and correct copy of the Note is attached hereto as Exhibit "A" and is incorporated herein by reference, 6, On or about May 10,2005, Defendant, Joey V, Sullenberger ("Guarantor") executed his certain Commercial Guaranty (the "Guaranty"), dated May 10, 2005, absolutely and unconditionally guaranteeing and promising to pay the Bank, on demand, all indebtedness of Borrower under the Note, A true and correct copy of the Guaranty is attached hereto as Exhibit "B" and is incorporated herein by reference. 7. As set forth in the Note, the Borrower promised to pay the Bank, or order, in lawful money of the United States of America, on demand, the principal amount of $50,000.00, together 2 with interest at the initial rate of 7.250% per annum, on the unpaid balance from May 10, 2005, until paid in full. 8. In the Note, Borrower agreed to pay the Note in full immediately upon the Bank's demand. 9, By means of the Note, Borrower agreed to pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning June 1,2005, with all subsequent interest payments to be due on the same day of each month after that. 10. The Bank has made demand upon Borrower and Guarantor for payment in full of all amounts owed to the Bank under and in connection with the Note. 11. To date Defendants have refused and failed to pay in full all sums due and owing under the Note and the Guaranty. 12. According to the Note, if Borrower made any payment fifteen (15) days or more late, Borrower would be charged 10.000% ofthe regularly scheduled payment or $25.00, whichever was greater. ]3, According to the Note, if the Bank demanded payment of the Note, and Borrower did not pay the Note in full within fifteen (15) days after the Bank's demand, then Borrower would 3 also be charged either 10.000% of the sum of the unpaid principal plus accrued unpaid interest or $25.00, whichever was greater. 14. According to the Note, any failure by the Borrower to make any payment when due under the Note constitutes a default under the Note. 15. According to the Note, a material adverse change in the Borrower's financial condition, or a belief by the Bank that the prospect of payment and performance ofthe indebtedness is impaired, constitutes a default under the Note. 16. According to the Note, a default occurs if the Bank, in good faith, believes itself msecure. 17. According to the Note, upon default, including but not limited to failure to pay upon final maturity, the Bank, at its option, could increase the variable interest rate on the Note to 6.500 percentage points over the Index defined therein. 18. According to the Note, if judgment is entered in connection with the Note, then interest will continue to accrue on the Note after judgment at the interest rate applicable to the Note at the time when such judgment is entered. 4 " . 19, According to the Note, the Bank may hire or pay counsel to help collect under the Note if the Borrower does not pay. Borrower agreed to pay the Bank that amount, including but not limited to, the Bank's attorneys fees and legal expenses, whether or not their was a lawsuit, including attorneys fees. Borrower is in default under the Note in that Borrower has failed to make payments when due under the Note. 20. Borrower did not make the regular payments of all accrued and unpaid interest that were due and owing on January I, 2006, and February I, 2006, respectively. 21. There have occurred material adverse changes in the Borrower's and the Guarantor's financial condition. 22, The Bank believes the prospect of payment or performance under the Note is impaired. 23. As of February 15,2006, the sum due and owing under the Note is: Principal: $49,205,36 Interest: $ 1,337,67 (plus $12.30 per diem) Late Charges: $ 67.85 Attorneys Fees and Legal Expenses: $ 500.00 Total: $51,11 0.88 5 ,. plus continuing interest from February 15, 2006, at the rate of$12.30 per diem, continuing late charges, continuing costs, and continuing attorneys fees. 24. Borrower and Guarantor have no legal excuse or defense for failure to perform and pay their obligations under and in connection with the Note and Guaranty as hereinabove alleged. 25. Because of the Defendants' failure and refusal to perform and pay their obligations under and in connection with the Note and Guaranty and to pay the amount owed to the Bank, the Bank has been damaged in a sum not less than $51,110.88 plus continuing interest, late charges, costs, and attorneys fees. 26. The Note authorizes the Bank to confess judgment against the Borrower. 27. The Guaranty authorizes the Bank to confess judgment against the Guarantor. 28. Judgment has not been entered against either Defendant in any jurisdiction under the Note or the Guaranty. 29. Neither the Note nor the Guaranty have been assigned. 30. Judgment by confession is not being sought herein against a natural person in connection with a consumer credit transaction. 6 31. Defendants' failure to pay under the Note and Guaranty and continuing default thereunder provides the Bank with the authority to file this Complaint against both Defendants. 32. All conditions precedent to the Bank's recovery hereunder an entry of judgment by confession, in favor of the Bank, have been performed, satisfied, and/or waived. WHEREFORE, Plaintiff, Mid Penn Bank, herein prays that this Honorable Court enter Judgment by Confession against the Defendants, Joey V's, Inc. d/b/a! Joey's Italian Grill and Joey V. Sullenberger a/kla Joseph V. Sullenberger, in the amount of$51,110.88, plus continuing interest from February 15,2006, at a rate of$12.30 per diem, continuing late charges, continuing costs, and continuing attorneys fees, and further grant Plaintiff such additional relief as is just and proper. B Marc Kell . Knig , squire (PA Atty. No. 87365) 2320 North Second Street Harrisburg, P A 1711 0 Telephone: (717) 238-6570 Attorneys for Plaintiff , I'. Date: ,2006 home/tlf/complain/mid.joev 7 717 238 4809 Cunningham and Cherni 11 :03:00 a.m 02-22-2006 38/58 .' MID PENN BANK, : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff : NO. v. JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, aIkIa JOSEPH V. SULLENBERGER,: Defendants AFFIDAVIT OF LAST KNOWN ADDRESS 1, Larry L. Novinger, Collections Manager of Mid Penn Bank, hereby certify that the last known address of Defendant, Joey V's, Inc., d/b/a Joey's Italian Grill, is 433 North 21d Street, Camp Hill, Cumberland County, Pennsylvania 17011. The last known address of Defendant, Joey V. Sullenberger a!k/a Joseph V. Sullenberger, is 481 Sample Bridge Road, Enola, Cumberland County, Pennsylvania 17025. MID PENN BANK awo~ to me this ~n (lay of February, 2006 ~f" ~8mo~ JirH Of PENNSYLVA IA Notarial Seal Dixie L. Ross, Notary Public MiHersburg Boro, Dauphin County My Commission Expires May 5. 2007 Member, Pennsy\'1sroi3 Associa1ion of Nctartes MID PENN BANK, Plaintiff v. JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, a!k1a JOSEPH V. SULLENBERGER,: Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. AFFIDAVIT OF KELLY M. KNIGHT. ESOUlRE I, Kelly M. Knight, Esquire, attorney for Plaintiff, Mid Penn Bank, swear and aver as follows: I. The judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. Swom to before me this.~ day of February, 2006 , '_ ~ ~L_l jj_ < Notary Public I-~-~ .... I" _, / >_/__( :UT}\:iiJ\L SF/i(_ c)LA-J;t.,.!;\!"- A:\~::,THi\"-; ;":>'1'1 ~. By: MID PENN BANK, : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. v. JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, a!k1a JOSEPH V. SULLENBERGER,: Defendants CERTIFICATE OF RESIDENCE The address of the Plaintiff, Mid Penn Bank, is 349 Union Street, Millersburg, Dauphin County, Pennsylvania 17061. The last known address of Defendant, Joey V's, Inc., d/b/a Joey's Italian Grill, is 433 North 21 ,t Street, Camp Hill, Cumberland County, Pennsylvania 17011. The last known address of Defendant Joey V. Sullenberger a!k!a Joseph V. Sullenberger, is 481 Sample Bridge Road, Enola, Cumberland County, Pennsylvania 17025. ,1\ ' Date: ;' I. ,{,'t ^ ,2006 By: Marc Kelly, i t, Esquire (P A Atty. No. 87365) 232 North Second Street Harrisburg, PA l7110 Telephone: (717) 238-6570 Attorneys for Plaintiff 717 238 4809 Cunningham and Cherni 11 :03:44 a.m 02~22-2006 43/58 MID PENN BANK, : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. v. JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, aIkIa JOSEPH V. SULLENBERGER,: Defendants AFFIDAVIT OF NON.MILlTARY SERVICE COMMONWEALTH OF PENNSYLVANIA : ss; COUNTY OF DAUPHIN The undersigned, being duly sworn according to law, deposes and says that he, Larry Novinger, is Collections Manager of Mid Penn Bank, Plaintiff in the above captioned matter; and that he personally knows that Defendant Joey V. Sullenberger a!k/a Joseph V. Sullenberger is over tbe age of eighteen (I 8) years. The Plaintiff further avers that the Defendants are not in the Military Service or in any branch oftbe Armed Forces of the United States of America or its Allies or otherwise within the provisions of the Soldier's and Sailors' Civil Relief Act of Congress of 1940 and its Amendments. SWORN and Subscribed to Before me thi~:1Z:DdaY Ofu~v QOTAR PUBLl COMMONWEALTH Of PENNSYLVANI~ Notarial Seal Dixie L. Ross. NotaJy Public Millersburg Bom, Dauphin County My Commission Expires May 5, 2001 Member, Pennsylvania Association of Notarles 717 238 4809 Cunningham and Cherni 110336 a.m. 02-22-2006 42/58 . MID PENN BANK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff : NO. v. JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, a!k/a JOSEPH V. SULLENBERGER,: Defendants VERIFICATION I, Larry Novinger, Collections Manager of Mid Penn Bank, verify that the statements made in the foregoing Complaint for Confession of Judgment are true and correct to the best of my knowledge, information and belief: I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities. -; Date: rO)eUa ('I .2<../ ,2006 SWORN and Subscribed to Before me this 2Znd day of "b~ / ~i02--' ... ~ARY~LIC . COMMONWEALTH Of PENNSYLVANIA Notarial Seal Dixie L. Ross, Notary Public Millersburg Bom, Dauphin County My Commission Expires May 5, 2007 Member, P'?'l;'syfvZ!lli~ ,t.,!s'JoahcfI of Notaries . EXHIBIT "A" PROMISSORY NOTE ... Prinolpal. ....A. "^" AA ......~<.~~w<o:-:' ng9jriQ.,.m . (5411)._/ References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containin ...U has been omitted due to text len h limitations. Borrower: Joey V'., Inc. D/B/A Joey'. italian Grill (TIN: 03-0555654) 433 North 21.t Str881 Camp Hili, PA 17011 Lender; Mid Penn Bank Derry Str881 Office 4098 Derry Str881 Harrl.burg, PA 17111 Principal Amount: $50,000.00 Initial Rate: 7.250% Date of Note: May 10, 2005 PROMISE TO PAY. Joey V'" Inc. D/B/A Joey'. italian Grill ("Borrower") proml.... to pay to Mid Penn Bank ("Lender"), or order, In lawful money of the United Stat... of America, on demand, the prlnclpel amount of FIfty Thou.and " 00/100 Dollars ($50,000.00) or .0 muclt a. may be oul8tandlng, together with Inter...t on the unpaid outstanding principal balance of each advance. Interest .hall be c.lculated from the date of each advance until repayment of each advance. PAYMENT. Borrower will pay thlalo.n In tulllmmedlately upon Lender'. dem.nd. Borrower will pay regular monthly payment. of all accrued unp.ld Inter...t due a. of ...ch payment date, beginning June I, 2005, with all .ubsequent Interest payment. to be due on the same day of each month after that. Unl.... otI1erwlae agreed or required by applicable law, paymenta will be epplled flr.t to any accrued unpaid Interest: then to principal; then to any unpaid collection costl; and then to any late chargee. The annual Interest rate for thl. Note 18 computed on 8 3651380 beala: that I., by .pplylng the ratio of tlte annual Interest rete over a y...r of 380 daya, multiplied by the outstanding principal balance, multiplied by the actual number of day. the principal balance la out8landlng. Borrower will pay Lender 8l Lender'. addr.... .hown .bove or at auch other place a. Lender may d...lgnate In writing. VARIABLE INTEREST RATE. The interest rate on this Note is subject to cltange from time to time based on changes in an independent index which is the the Prime Rate as quoted in the Wall Street Journal (the 'Index.). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designata a substitute index after notice to Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. The Interest rate change will not occur more often than each month, on the first business day of the mootlt. Borrower understands that Lender may makeloane based on other rates as well. The Index currently la 5.750% par annum. The Interest rete to be applied to the unpaid principal belanca of tltla Note will be at a rate of 1.500 parcenl.ge polnta over tlte Index, r...ultlng In an Initial rate of 7.250% per annum. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. PREPAYMENT. Borrower may pay wilhout penalty all or a portion of 1he amount owed earlier than tt is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments of accrued unpaid interest. Rather, early payments will reduce the principal balance due. 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 1ull" 01 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: Mid Penn Bank, Derry Street Office, 4098 Derry Street, Harrisburg, PA 17111. LATE CHARGE. "a regularly sclteduled interest payment is 15 days or more late, Borrower will be cltargad 10.000% of the regularly .cheduled payment or $25.00, whichever Is greeter. If Lender demands payment of this loan, and Borrower doa8 not pay the loan In full within 15 day. after Lender'. demand, Borrower alao will be charged eltlter 10.000% of tlte .um of the unpaid principal plu. accrued unpaid Interest or $25.00, whichever 18 greater. INTEREST AFTER DEFAULT. Upon default, including lallure to pay upon tinal maturity, Lender, at its option, may, "parmitted under applicable iaw, increase the variable interest rate on this Note to 6.500 percentage points over the Index. The interest rate will not exceed the maximum rate permitted by applicable law. If judgment is entered in connectiOn with th~ Note, interest will continue to accrue on this Note aiter judgment at the interest rate applicable to this Note at the time judgment is entered. DEFAULT. Eaclt of the following shall constitute an event 01 defau~ ('Event of Defau~') 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. 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 01 any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceeding.. 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 01 the creditor or forfeiture proceeding and it Borrower gives lender written notice of the creditor or forfeiture proceeding and deposits with lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bOnd for the dtspute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. Change In Ownership. Any change in ownership of twenty-five percent (25%) or more of the common stock of Borrower. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired. Insecurity. Lender 'In good faith believes itself Insecure, LENDER'S RIGHTS. Upon default, Lender may, after giving such notrces as required by applicable law, declare the entire unpaid principal balance on Loan No: 500029863 PROMISSORY NOTE (Continued) Page 2 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, Lenders 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 Ihe right 10 any jury Irlal In any action, proceeding, or counterclaim brought by either lender or Borrower against the other. GOVERNING LAW. Thla Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the lawe of the Commonwealth of Pennsylvania without regard to It I conflicts of law provisions. This Note has been accepted by Lender In the Commonwealth of Pennsylvania. CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Dauphin County, Commonwealth of Pennsylvania. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings. or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts, 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. COLLATERAL Borrower acknowledges this Note is secured by the following collateral described in the security instrument listed herein: inventory, chattel paper, accounts, equipment and general intangibles described in a Commercial Security Agreement dated May 10, 2005. UNE OF CREDIT. This Note evidences a revolving line of credit. Advances under this Note, as well as directions for payment from Borrower's accounts, may be requested orally or in writing by Borrower or by an authorized person. Lender may, but need not, require that all oral requests be confirmed in writing. Borrower agrees to be liable for all sums either: (A) advanced in accordance with the instructions of an authorized person or (B) credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this Note at any time may be evidenced by endorsements on this Note or by Lender's internal records, including daily computer print-outs. Lender will have no obligation to advance funds under this Note if: (A) Borrower or any guarantor is in default under the terms of this Note or any agreement that Borrower or any guarantor has with Lender, including any agreement made in connection with the signing of this Note; (B) Borrower or any guarantor ceases doing business or is insolvent; (C) any guarantor seeks, claims or otherwise attempts to limit, modify or revoke such guarantor's guarantee of this Note or any other loan with Lender; (0) Borrower has applied funds provided pursuant to this Note for purposes other than those authorized by Lender; or (E) Lender in good faith believes itself insecure. PRIMARY DEPOSIT ACCOUNTS. Borrower agrees to open and maintain its primary business deposit account ("Account") with Lender so long as this Note has an outstanding balance or loan availability. If Borrower does not open or maintain the Account with Lender, Borrower authorizes Lender to increase the interest rate on this loan by one-quarter of one percent (0.250%). DEMAND LOAN MATURITY AND ANNUAL REVIEW. This loan Is written on demand with no specific malurily date. This ioan Is subject 10 an annual review by Lender of financial information and loan performance. The first annual review is scheduled for July 1, 2006. To facilitate the annual review process, Lender may use a maturity date on its computer system or systems which may appear on billing statements or other mailings and notices to Borrower. The presence of a maturity date on billing statements or other mailings and notices shall not be considered a waiver of Lenders right to demand full repayment of the loan at any time. 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. NOTIFY US OF INACCURA TE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please nOllfy us If we report any Inaccurate information about your account(s) to a consumer reporting agency. Your written notice describing the specific inaccuracy(ies) should be sent to us at the following address: Mid Penn Bank, Derry Street Office, 4098 Derry Slreet, Harrisburg, PA 17111. GENERAL PROVISIONS. This Note Is payable on demand. The inclusion of specific defau" provisions or rights of Lender shall nol preclude Lender's right to declare payment of this Note on its demand. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATiNG TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COpy OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE 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 Loan No: 500029863 PROMISSORY NOTE (Continued) Page 3 PRIOR TO SIGNING ntlS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF ntlS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO ntE TERMS OF ntE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF ntlS PROMISSORY NOTE. ntlS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED ntAT ntlS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: Seal) v.sEflPRO~v...5.i6.cnOO5Cop'~'.........~.lnc.'iIlJ1,2OOI5.AlI~Reurvecl.'PAL'CfllLPl.\02I).FCTR'3OI2Pf1-Sec..u"fe DISCL( JRE FOR CONFESSION OJ UDGMENT , PrIncIpal $5000\),00 l.oan Date ()50.1().m5 . ... l.oan NO 500029863 hlltlale References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing uu. has been omitted due to text length limitations. Declarant: Joey V's, Inc. D/B/A Joey's Ranan Grill (TIN: 03-(555554) 433 North 2181 Street Camp Hili, PA 17011 Lender: Mid Pann Bank Darry Street Office 4098 Derry Street Harrisburg, PA 17111 DISCLOSURE FOR CONFESSION OF JUDGMENT 10 M'L" THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS DAY OF !!L!!. < PROMISSORY NOTE FOR $50,000.00 OBLIGATING DECLARANT TO REPAY THAT AMOUNT. A. THE UNDERSIGNED UNDERSTANDS THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST DECLARANT IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO DECLARANT AND WITHOUT OFFERING DECLARANT AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF DECLARANrS RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST DECLARANT UNDER THE NOTE, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTl.Y, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE N TICE OF THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING JUDGMENT AI ST DECLARA T BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INITIALS: , 200f , B. THE UND RSIGNED FURTHER UNDERSTANDS THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST DECLARANT WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING DECLARANrS PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF DECLARANrS RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLlGENl1. Y AND VOLUNTARILY WAIVING THESE RIGHTS, A D THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN ANY MANN R P RMITTED B PPLlCABLE STATE AND FEDERAL LAW, WITHOUT GIVING DECLARANT ANY ADVANCE NOTICE. INITIALS: C. AFT AVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, THE UNDERSIGNED REPRESENTS THAT: INITIALS ~. DECLARANT WAS REPRESENTED BY DECLARANrS OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE NOTE. . 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE TO DECLARANT'S ATTENTION. THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. DECLARANT: JOE EY'S ITALIAN G I /C Joey V'., Inc. y V. erger. President 0 A Joey's Itanan Grill l.ASfRPRCllO<'o:lf'o;l,Y...!.2I.OQ.OQ! c.:.pt. ...._I'~ Soou_.'roc, 'WI.1OOIi. NlAoQrQ_...... f'A '-Cf"CPl'.030.FC rR_JOQ PFl-SfC_LiNE EXHIBIT "B" COMMERCIAL GUARAN'. References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containin "'u. has been omitted due to text length limitations. Borrower: Joey V'a, Inc. DIBIA Joey'a Italian Grill (TIN: 03-0555654) 433 North 210t Stroet Camp Hili, PA 17011 Guarantor: Joey V. Sullenberger (SSN: 197-60-6048) 481 Sample Bridge Rood Enole, PA 17025 Lender: Mid Penn Bank Derry Slroet Office 4098 Derry Stroet Harrisburg, PA 17111 AMOUNT OF GUARANTY. This Is a guaranty of payment of the Note, Including wllhoUlllmllotlon the principal Note amounl of Fifty Thousand <<< 0011 00 Dollaro ($50,000.00). GUARANTY. For good and valuable conslderotlon, Joey V. Sullenberger ("Guarantor") absolUlely and uncondlllonally guarant_ and promisee to pay to Mid Penn Bank ("Lender") or Ita order, on demand, In legal tender of the Unllad Stot.. of America, the Indabtadn..a (as that term la deflnad below) of Joey V'a, Inc. D/B/A Joey'a lIallan Grill ("Borrower") to Lender on the terma and condltlona aot forth In this Guaranty. MAXIMUM L1ABIUTY. The maximum liability of Guarantor under this Guaranty shall not exceed at anyone time the amount of the Indebtedness described herein, plus all costs and expenses of (A) enforcement of this Guaranty and (8) collection and sale of any collateral securing this Guaranty. The above limitation on liability is not a restriction on the amount of the Indebtedness of Borrower to Lender either in the aggregate or at anyone time. If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties shall be cumulative. This Guaranty shall not (unless specifically providad 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 unterminatad guaranties. INDEBTEDNESS GUARANTEED. The Indebtedness guarantead by lI1is Guaranty includes the Note, including (a) all principal, (b) all interest, (c) all late charges, (d) all loan fees and loan charges, and (e) all collection costs and expenses relating to lI1e Note or to any collateral for lI1e Note. Collection costs and expenses Include without limitation all of Lender's attorneys' fees. DURATION OF GUARANTY. This Guaranty will take effect when receivad by Lender without lI1e necessity of any acceptance by Lender, or any notice to Guarantor or to Borrower, and will continue in full force until all Indebtedness 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. 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 anyone or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. This Guaranty covera a revolving line of credit and It 'a specifically anticipated that fluctuations will occur In the aggregate amount of Indebtednees owing from Borrower to Lender. Guarantor specifically acknowJedgea and agrees that fluctuations In the amount of Indebtednes8, even to zero dollars ($ 0.00), shall not con8tltute a termination of this Guaranty. Guarantor'a liability under thla Guaranty ahalllermlnote only upon (A) termlnotlon In writing by Borrower and Lender of tha line of cradll, (B) paymen1 of tha Indabtadnesa In full In legal tender, and (C) payment In full In legal tender of all of Guarantor'a other obl/gallona under thla Guaranty. GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, wlthoUl notice or demand and wllhoUl '..aenlng Guarantor'a liability under this Guaranty, from time to time: (A) 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; (8) 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 lI1a rata of intarest on lI1e Indabtadness; extensions may be repeated and may be for longer lI1an 1110 original loan term; (el to taka 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; (0) to release, substitute, agree not to sue, or deal with anyone or more of Borrower's sureties, endorsers, 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. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender lI1at (A) 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; (e) 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; (F) 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; (I) 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 withll1e following: Annual Statement.. As soon as available, but in no event later than one-hundrecHwenty (120) days atter the end of each fiscal year, Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor. Tax Return.. As soon as available. but in no event later than thirty (30) 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. Loan No: 500029863 COMMERCIAL GUARANTY (Continued) Page 2 GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue iending money or to extend other credit to Borrower; (8) 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 nooaction 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: (0) 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 ot any kind, or at any time, with respect to any matter whatsoever. In addition to the waivers set forth herein, if now or hereafter Borrower is or shall become insoNent and the Indebtedness shall not at all times until paid be fully secured by collateral pledged by Borrower, Guarantor hereby forever waives and gives up in favor of Lender and Borrower, and Lender's and Borrower's respective successors, any claim or right to payment Guarantor may now have or hereafter have or acquire against Borrower, by subrogation or otherwise, so that at no time shall Guarantor be or become a .creditor" of Borrower within the meaning of 11 U.S.C. section 547(b), or any successor provision of the Federal bankruptcy taws. Guarantor also waives any and all rights or defenses arising by reason of (A) any "one action" or "antiMdeficiency" 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 judicJal1y 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, afYol 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; (0) 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 of Borrower to lender which is not barred by any applicable statute of limItations; or (F) any defenses given to guarantors at taw 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 raw or publiC policy, such waiver shall be effective only to the extent permitted by law or public poflCY. RIGHT OF SETOFF. To the extent permitted by applicable law, lender reselVes a right of setoff in all Guarantor's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointfy 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 Lendef,to the extent permitted by appltcable 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 of Borrower to Lender, whether now existing or hereafter created, shall be superior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower, through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to the payment of the claims of both Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the Indebtedness of Borrower to Lender. Guarantor does hereby assign to Lender all claims which it may have or acquire against Borrower or against any assignee Of 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 shaH 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 failowing 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 regal expenses for bankruptcy proceedings (inctuding 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 feclerallaw, 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. Choice of Venue. If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Dauphin County, Commonwealth of Pennsylvania. Integration. Guarantor further agrees that Guar8l1tor 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, Loan No: 500029863 COMMERCIAL GUARANTY' (Continued) Page 3 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 anyone 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 anyone 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 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 mall postage prepaid, directed to the addresses shown near the beginning of this 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. 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 agalnBt the other. DEFINmONS. The following capitalized words and tenns shall have the following meanings when used in this Guaranty. Unless specffically slated 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 ptural 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 Joey Vs, Inc. D/B/A Joey's Italian Grill and includes all co-signers and co-makers- signing the Note. GAAP. The word "GMP" means generally accepted accounting principles. Guarantor. The word "Guarantor" means each and every person or entity signing this Guaranty, including without limitation Joey V. Sullenberger. Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Note. Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty. Lender. The word "Lender" means Mid Penn Bank, its successors and assigns. Note. The word "Note" means the promissory note dated May 10, 2005, In the original principal amount of $501000.00 from Borrower to Lender, together with all renewals of, extensions of, modifications of, refinancings of. consolidations of, and substitutions for the promissory note or agreement. 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 (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 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 Loan No: 500029863 COMMERCIAL GUARANTY (Continued) Page 4 EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDI110N, 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 MAY 10, 2005. 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. cI V. Sullenberger Seal) X J INDIVIDUAL ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA ) )SS ) COUNTYOF ]1'f'/J flY-/' On this, the ,2041" ,before me ~~. .4.1J,~v- blic, personally appeared Joey V. Sullenberger, kno to me (or s factorily instrument, and acknowledged that he or she executed the same for the purposes day of , the undersigned Notary proven) to be the person whose name is subscribed to the w' therein contained. In witness whereof, I hereunto set my: hand and official seal. COMMONWEALTH OF PENNSYLVANIA _Sell Wer4y A. WItmyer, NoIaJy Public 0IIvet Twp., Petry County My COITrnIooIon ElcpIres Jan. 4, 2009 Member, Pennaytvanla AaaociaUon Of Notarl.. USERPAO..........V..5.21l.OIl.o:lll ~.___.I...1W7.:/OO5, ....1ligIU__ .p,," l;lCf1IU'I.\E20.FC TR-JOlI2 PA-SfC-LlNE DISCLC. JRE FOR CONFESSION OF JDGMENT PrIncipal Loan Date . Loan No Inltlaht $50000.00. 05-10<200$.. . 500029863 References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. An item above containing ....... has been omitted due to text len h limitations. Borrower: Joey V's, Inc. D/B/A Joey's italian Grill (11N: 03-05S5654) 433 North 21st Street Camp Hili, PA 17011 Declarant: Joey V. Sullenberger (SSN: 197-60-6048) 481 Sample Bridge Road Enola, PA 17025 Lender: Mid Penn Ban~ Derry Street Office 4098 Derry Street Harrisburg, PA 17111 DISCLOSURE FOR CONFESSION OF JUDGMENT viA.. <I' I AM EXECUTING, THIS I 0 DAY OF "," , OBLIGATING ME TO REPAY THAT AMOUNT. . 200 r. A GUARANTY OF A PROMISSORY NOTE FOR $50,000.1 A. I UNDERSTANO THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROYISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE GUARANTY, WITHOUT ADVANCE NOTICE TO ME AND WITHOUT OFFERING ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST ME UNDER THE GUARANTY, I AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING Y RIG T TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S ENTERING D AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. /. INITIALS: B. I FUR R UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT ADVANCE NOTICE A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, I AM KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING N THE JUDGMENT IN ANY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY ADVANCE TIC " INITIALS: C. AFTE HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, I REPRESENT THAT: INITIALS JrL 1. I WAS REPRESENTEO BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY. , 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY TO MY ATTENTION. D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS $10,000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN I INITIALED AND SIGNED IT; AND fHAT I RECEIVED A COPY AT THE TIME OF SIGNING. THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. DECLARANT: Seal) lASER p~ c.ndr9. VIt(, ~,2lI.0Il_0lliS COpt", ....._F.......... sa.._. I"". '981. ~ Ni""'" ......"'.... _ PA, L'CF~U'l',DX..fC TR.:.ot< J.'R-$EC_UMi - ~ ~ c:. ~ ~ "-. ~0 c:. \\:.. d ;--. ~ ~ ,\ (' --.\:l --':l 0 ~ ~ ?5 ~ ~ ~ '>) . ~ ,"> ~ ~ ""1-... - 6 MID PENN BANK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ,xO(p 0- i/:J(P Ci v/ NO. v. JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, a!k1a JOSEPH V. SULLENBERGER,: Defendants NOTICE OF ENTRY OF JUDGMENT TO: Joey V's, Inc. d/b/a Joey's Italian Grill 433 North 21 ,t Street Camp Hill, PA 17011 Joey V. Sullenberger a!k1a Joseph V. Sullenberger 481 Sample Bridge Road Enola, P A 17025 YOU ARE HEREBY NOTIFIED that on the following Judgment has been entered against you in the above-captioned case in the sum of $49,205.36 plus continuing interest from February 15, 2006, at the rate of$12.30 per diem, continuing late charges, continuing costs, and continuing attorneys fees. {}UA~ Protho otary /" ---- 7 I hereby certify that the name and address of the proper person to receive this notice under Pa.R.C.P. 236 is: Date: Joey V's, Inc. d/b/a Joey's Italian Grill 433 North 21" Street Camp Hill, P A 170 II Joey V. Sullenberger a!k1a Joseph V. Sullenberger 481 Sample Bridge Road Enola, PA 17025 Por este medio se Ie esta notificando que el de del 2006, el/la siguiente Fallo he sido anotado en contra suya en el caso mencionado en el epigrafe. FECHA: Protonotario Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado de residencia: Joey V's, Inc. d/b/a Joey's Italian Grill 433 North 21" Street Camp Hill, P A 17011 Joey V. Sullenberger a!k1a Joseph V. Sullenberger 481 Sample Bridge Road Enola, P A 17025 MID PENN BANK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-1126 JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, a!k/a JOSEPH V. SULLENBERGER, Defendants AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT IN EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO JOEY V'S, INC., d/b/a JOEY'S IT ALlAN GRILL, AND JOEY V. SULLENBERGER a/k/a JOSEPH V. SULLENBERGER I, Elisabeth Benecke, hereby affirm the following: I. I am an adult over the age of eighteen (18), and I am not a party to the action nor an employee of a party to the action. 2. On March 8, 2006, at approximately 3 :04 p.m., I served the Notice Under Rule 2958. I of Judgment and Execution Thereon Notice of Defendants' Rights to Joey V's, by handing a copy of the same to an individual, ofthe approximate height of five feet, five inches, an approximate age of 45-50 years, with short auburn colored hair, and who identified herself as "Bev" and claimed to be the individual in charge, at Joey's Italian Grill, located at 433 North 21,t Street, Camp Hill, Cumberland County, Pennsylvania 170 II. ( OA~o.b.dh.~IJA1@O;P ) Elisabeth Benecke Sworn to before me this 8th day of March, 2006 t~/!J)~ Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Linda B. Deaven. Notary Public CIty Of Harrisburg, Dauphin Coonty My Convnission Expires Feb. 25, 2010 Member, Pennsylvania Association 01 Notaries " ",--, MID PENN BANK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-1126 JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, aIkIa JOSEPH V. SULLENBERGER, Defendants AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958,1 OF JUDGMENT IN EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, AND JOEY V, SULLENBERGER a/k1a JOSEPH V. SULLENBERGER I, Elisabeth Benecke, hereby affirm the following: 1. I am an adult over the age of eighteen (18), and I am not a party to the action nor an employee of a party to the action. 2. On March 8, 2006, at approximately 2:34 p.m., I served the Notice Under Rule 2958.1 of Judgment and Execution Thereon Notice of Defendants' Rights to Joey V. Sullenberger, by handing a copy of the same to an individual, of the approximate height of six feet, an approximate age of38-45 years, with short curly brown hair, and who, when asked if this was the Sullenberger residence, answered, "Yes.", at the residence on Sample Bridge Road, Enola, Cumberland County, Pennsylvania 17025. u,'Q..lA'N \:\ ~ II. Q~Du. ) Elisabeth Benecke Sworn to before me this 8th day of March, 2006 I~~ If ,Au~ Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Linda B. Deaven, Nolaty Public City O! Harrisburg, Dauphin County My Commission Expires Feb. 25, 2010 Member, Pennsylvania Association of Notaries c