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HomeMy WebLinkAbout06-1127 " .. MID PENN BANK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. L~' /1;2.7 ~J v, JOEY V'S, INC., d/b/a JOEY'S ITALIAN 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 Defendants and confess judgment in favor of the Plaintiff and against the Defendants as follows: Principal: Interest: Late Charges: Attorneys Fees and Legal Expenses: $20,000,00 $ 1,168,02 (plus $5.00 per diem) $ 2,000.00 $ 500.00 Total: $23,668.02 plus continuing interest from February 15, 2006, at the rate of$5,OO per diem, continuing late charges, continuing costs, and continuing attorneys fees. By: C Date: i .1./ < ,2006 " :'3 :~'.) ~_J (... o . Cunningham & Chernicoff, 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, P A 17110 Telephone: (717) 238-6570 mwitzig@cclawpc,com kknightlal.cclawPc.com , ; .-, ') .:on :j T' .',) Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA. ('."\ : NO, ()-/)Of/-- fJ'd..1 c"lv,1 ..J .< MID PENN BANK, v. JOEY V'S, INC" 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 & Chernicoff, P.C" and states its Complaint for Confession of Judgment as follows: I. 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 17061. 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 June 3, 2005, Borrower executed a Promissory Note in favor of the Bank in the principal amount of $20,000.00 (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 March 25, 2005, Guarantor executed a Commercial Guaranty (the "Guaranty") absolutely and unconditionally guaranteeing and promising to pay the Bank the indebtedness of Borrower under the Note. A true and correct copy of the Guaranty is attached hereto as Exhibit "B" and is incorporated 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 $20,000,00, together with interest at the initial rate of 7.500% per annum, on the unpaid balance from June 3, 2005, until paid in full. 8. To date Defendants have refused and failed to pay in full all sums due and owing under the Note and the Guaranty. 9. Borrower agreed to pay the Note, in full, immediately upon the Bank's demand, 10. If no demand for payment was made by the Bank then, according to the Note, Borrower agreed to pay one principal payment of $20,000.00 plus interest on July 3, 2005. 2 II. According to the Note, if Borrower made any payment fifteen (15) days or more late, Borrower would be charged 10,000% of the regularly scheduled payment or $25.00, whichever was greater. 12. 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. \3. 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. 14. According to the Note, the Bank may hire or pay sounel 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 there was a lawsuit, including attorneys fees, 15. The Bank has made demand for payment in full of all amounts owed to the Bank under and in connection with the Note. 16. Borrower is in default under the Note in that Borrower has failed to make payments when due under the Note. 17. Borrower did not make the regular payments of all accrued and unpaid interest that were due and owing on January I, 2006, and February 1, 2006, respectively. 18. The Bank believes the prospect of payment or performance under the Note is impaired. 3 19. As of February 15,2006, the sum due and owing under the Note is: Late Charges: $20,000.00 $ 1,168.02 (plus $5,00 per diem) $ 2,000,00 Principal: lnterest: Attorneys Fees and Legal Expenses: $ 500.00 Total: $23,668,02 plus continuing interest from February 15, 2006, at the rate of$5.00 per diem, continuing late charges, continuing costs, and continuing attorneys fees. 20. 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. The Bank has demanded that Borrower and Guarantor immediately pay in full all indebtedness under the Note. 21. 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 $23,668.02 plus continuing interest, late charges, costs, and attorneys fees, 22, The Note authorizes the Bank to confess judgment against the Borrower. 23, The Guaranty authorizes the Bank to confess judgment against the Guarantor. 24. Judgment has not been entered against either Defendant in any jurisdiction under the Note or the Guaranty. 25. Neither the Note nor the Guaranty have been assigned. 4 26. Judgment by confession is not being sought herein against a natural person in connection with a consumer credit transaction. 27. 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. 28. All conditions precedent to the Bank's recovery hereunder and 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!k/a Joseph V. Sullenberger, in the amount of $23,668.02, plus continuing interest from February 15, 2006, at a rate of $5.00 per diem, continuing late charges, continuing costs, and continuing attomeys fees, and further grant Plaintiff such additional relief as is just and proper. Date: ( , i/ ' ,2006 home/tlf/complain/mid-joe2 5 717 2384809 Cunningham and Cherni 11 :05:07 8.m. 02-22-2006 51/M 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 AFFIDA VIr 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 21" Street, Camp Hill, Cumberland County, Pennsylvania 170 II. The last known address ofDefenclant, Joey V. Sullenberger aIkIa Joseph V. Sullenberger, is 481 Sample Bridge Road, Bnola, Cumberland County, Pennsylvania 17025. MID PENN BANK Br~~ ame: ' vin Title: Collections anager Sworn to me this ~ day of February, 2006 (/{)~~;JIt~ 'N~ he l'OMMONWEALTf/ C' PENNSYLVANIA Notarial Seal . Dixie L. Ross, Notary Public Ml11ersbll:rg Boro, Dauphin County My Commission Expires May 5, 2007 Member. PennSYlvnm"l Association of N01aries 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, alk/a JOSEPH V. SULLENBERGER,: Defendants AFFIDAVIT OF KELLY M. KNIGHT. ESOUIRE 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 a ainst a natural person in connection with a consumer credit transaction. Sworn to before me this ':.c..~ day of February, 2006 / , , ,'. ''''-'--'. (,.'."./..' . ,_ I ,~ Notary Pul;>lie- ~._~-~__ _,~.. NOiARIAL SEAl-" - .1iJLiL::AM0E AM[T~lANO. I\!Ot2:;'i p'J';' r) Hsrnsburg, P/" _02Y (~,~!~~~:~~?~l .~~:~:~,2;, ; .,r 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/k/a 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" Street, Camp Hill, Cumberland County, Pennsylvania 17011. The last known address of Defendant Joey V. Sullenberger a1k/a Joseph V. Sullenberger, is 481 Sample Bridge Road, Enola, Cumberland County, Pennsylvania 17025. By: I) Date:" !.;, . Ii.' ,2006 7172384809 Cunningham and Cherni 11 :05:51 a.m 02-22-2006 b6 (!)ij 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 AFFIDA VIr OF NON-MTI.ITARY SERVICE COMMONWEALTH OF PENNSYLVANIA : 55; COUNTY OF DAUPHlN The undersigned, being duly swom 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 aIkIa Joseph V. Sullenberger is over the age ofeigb.teen (18) years, The Plaintiff further avers that the Defendants are not in the Military Service or in any branch of the 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, MID PENN BANK SWORN and Subscribed to Before me thi~~y ~~#~ NOTARY UBLlC COMMONWEALTH ()F PINNSYLVANltl I Notarial Seal . Dixie 1.. Ross, Notary Public Mdlersburg Bora, Dauphin County My Commission Expires May 5, 2007 Member, Pennsvjvi'lI"!"1l Association of Notaries 717 238 4809 Cunningham and Cherni 11 :05:43 a.m. 02~22-2006 55/58 MID PENN BANK, : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLV ANlA Plaintiff : NO. v. JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, aIkIa 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, infonnation 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. ': t b( I.la ( \ I :),~ I SWORN and Subscribed to Before me this 22nd day of February, 200Ei<l C&ti)~~ NOTARY PUBLIC Date: ,2006 COMMONWE!\LTlI C.F eENNSYLVANJA Notarial Seal Dixie L Ross, Notary Public MilIersburg Boro, Dauphin County My Commission Expires May 5, 2007 Member, Pennsylvania Association of Notaries EXHIBIT "A" PROMISSORY NOTE .. i@iUnliL9linNPnlnli ;.Z5bl103mI94nlr/ 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 N_.U has been omitted due to text Ian limitations. Borrower: Joey V's, Inc. DIBfA Joey's italian Grill (TIN: 03-()S556S4) 433 North 2111 Street Camp Hili, PA 17011 Lender: Mid Penn Bank Carlisle Pike Office 4622 Carlisle Pike Mechanlcaburg, PA 17055 Principal Amount: $20,000.00 Initial Rate: 7.500% Date of Note: June 3, 2005 PROMISE TO PAY. Joey V's, Ine. D/B/A Joey's Italian Grill ("Borrower") promises to pay to Mid Penn Bank ("Lender"), or order, In lawful money 01 the United Stat.. 01 America, the principal amount 01 Twenty Thousand . 0011 00 Dollars ($20,000,00), together with Interest on the unpaid principal balance Irom June 3, 2005, until paid In lull. PAYMENT. Borrower will pay this loan In Iulllmmedlalely upon Lender's demand. II no demand II made, Borrower will pay thll loan In one principal payment 01 $20,000.00 plul In_t on July 3, 2005, Thll payment due on July 3, 2005, will be lor all principal and all accrued In_ not yet paid. Unl... otherwise agreed or required by applicable law, paymenta will be applied IIrst to any accrued unpaid Inter..t: then to principal; then to any unpaid collection COlta: and then to any late charges. The annuallntereat rate lor thll Note II computed on a 3651360 balll; that II, by applying the ratio 01 the annual Interest rate over a y..r 01 360 days, multiplied by the outatandlng principal balance, multiplied by the actual number 01 days the principal balance II outatandlng. Borrower will pay Lender at Lender'l addr..s Ihown above or at IUch other place as Lender may designate In writing. VARIABLE INTEREST RATE, The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the the prtme Rate as quoted in the Wall Street Joumal (the 'Index'), The Index is not necessartly the lowest rate charged by Lender on Its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substttute 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 eech month, on tha first business day of the month, Borrower understands that Lender may make loans based on other rates as well. The Index currently II 6.000% per annum. The In_t rate to be applied to the unpaid principal balance 01 thll Note will be at a rate 011.500 percentage polnta over the Index, r..ultlng In an Initial rata 01 7.500% per annum. NOTICE: Under no circumstances will the Interest rate on this Note ba more than the maximum rate allowed by applicable law. PREPAYMENT. Borrower agrees that all loan fees and other prepaid finence charges are ..med fully as of the date 01 the loan and will not ba subject to refund upon eerty payment (whether VOluntary or as a resull of defaulI), except as otharwise required by law. Except for the foregoing, Borrower may pay without penalty all or a portion of the amount owed eertler than tt Is due. Early payments will not, unless agreed to by Lender In wrillng, relieve Borrower of Borrowe(s obligation to continue to make payments under the payment schedule. Rather, eerty payments will reduce the prtncipal 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 tt without losing any of Lende(s rtghts 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 ba mailed or delivered to: Mid Penn Bank, Cartlsle Pike Office, 4622 Cartlsle Pike, Mechanicsburg, PA 17055. LATE CHARGE. II a payment is 15 days or more late, Borrower will ba charged 10.000% 01 the regularly scheduled payment or $25,00, whichever Ilgr_. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at Its option, may, ff permitted under app;icable law, increase the variable interest rate an 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 this Note, Interest will continue to accrue on this Note after judgment at the interest rate app;lcable to this Note at the time judgment Is entered. DEFAULT. Each of the following shall constitute an event of dalaull ("Event of Default") under this Note: Payment Default. Borrower fails to make any payment whan due under this Note. Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Nota 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 of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forleiture 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 forleiture proceeding and deposits with lender monies or a surety bond for the creditor or forleiture proceeding, in an amount determined by lender, in its soJe discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. 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 notices as required by applicable law, declare the entire unpaid principal balance on this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. Loan No: 500030994 PROMISSORY NOTE (Continued) Page 2 ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note n Borrower does not pay. Borrower wili pay Lender that amount. This includes. subject to any limitS undor applicable law, lender's attorneys' fees and lender's legaJ expenses, whether or not there is a lawsuit, including attomeys' fees, expenses for benkruptcy proceedings (Including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prol1ib~ed by applicable law, Borrower also wili pay any court costs, in add~1on 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 _sllaw applicable to Lender and, to the extent not preempted by lederal law, the lews of the Commonwealth 01 Pennsylvania without regard to Its conlllcts of law provisions. This Note has been accepted by Lender In the Commonwealth 01 Pennsylvanle. CHOICE OF VENUE. If there is a lawsun, Borrower agrees upon Lender's request to submn to the jurisdiction of the courts 01 Cumberland County, Commonwealth of Pennsylvania. RIGHT OF SETOFF, To the extent permitted by applicable law, Lender reserves a right 01 setoff in all Borrowe~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 pannitted by applicable law, to charge or setoff all sums owing on the indebtedness against any end all such accounts, and, et Lender's option, to administratively Ireeze all such accounts to allow Lender to protect Lende~s charge and setoff rights provided In this paragraph. COLLATERAL Borrower acknowledges this Note is secured by the foUowing collateral described in the security instrument listed herein: inventory I chattel papar, accounts, equipment and general intangibles described in e Commercial Security Agreement dated June 3, 2005. SUCCESSOR INTERESTS. The terms 01 this Note shail be binding upon Borrower, and upon Borrowe~s hei"" pe",onal representatives, successors and assigns, and shall inure to the benefit of lender and its successors and assigns. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us il we report eny 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, Carlisle Pike Office, 4622 Carlisle Pike, Mechanlcsburg, PA 17055, GENERAL PROVISIONS. This Note is payable on demand. The inclusion 01 specnic delauil provisions or rights 01 Lender shall not preclude Lender's right to declare payment 01 this Note on its demand, Lender may deley or lorgo enlorclng eny of its rights or remedies under this Note without losing them. Borrower and any other pa",on 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 tenns of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodetion maker or endo",er, shall be released from liability, All such parties agree that Lender may renew or extend (repeatedly and for any length 01 time) this loan or release any party or guarantor or coilateral; or impair, fail to realize upon or parfect Lende~s security interest in the collateral; and take any other action deemed necessary by Lender without the consent 01 or notice to anyone. All such parties also agree that Lender may modify this loan without the consent 01 or notice to anyone other then the party with whom the modification is made. The obligations under this Note ere joint end several. II any portion 01 this Note Is lor any reeson determined to be unenforceable, it will not affect the enforceability 01 any other provisions 01 this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARV 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 ANO WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUEO INTEREST, LATE CHARGES AND ANY ANO 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 HUNORED 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 VERIFIEO BY AFFIOAVIT SHALL BE SUFFICIENT WARRANT, THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHAILL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME ANO 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 SPECIFICAILL Y 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 REAO ANO UNOERSTOOD ALL THE PROVfSIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETEO COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSmUTE ANO HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: Seal) VoSERPAOUondnJ,Vot,12II,1I00CIl Copr_Ho_F~_,I..._,-.7,2lIOI_ AJAo,jlu__, .PA C.\CFr.t.PI.\020FC TR-3127 f'R.5fCDTERM DISCL(. A.lRE FOR CONFESSION OF JDGMENT 'ili,gijiif:l"g,Ii.. 5bbb30994WX 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 "..n has been omitted due to text Ian limitations. Declarant: Joey v's, Inc. D/B/A Joey'sltaUan Grill (TIN: 03-0555654) 433 North 21st Street Camp Hili, PA 17011 Lender: Mid Penn Bank CarUsle Pike Office 4622 Cartlsle Pike Mechanlcsburg, PA 17055 DISCLOSURE FOR CONFESSION OF JUDGMENT THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS DAY OF PROMISSORY NOTE FOR $20,000.00 OBUGATlNG DECLARANT TO REPAY THAT AMOUNT. A. THE UNDERSIGNED UNDERSTANDS THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST DECLARANT IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO DECLARANT AND WITHOUT OFFERING DECLARANT AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VAUDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST DECLARANT UNDER THE NOTE, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELUGENTL Y, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE OTlCE F THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING JUDGME G T DECLARANT BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INITIALS: .20_, B. THE UN ERSIGNED 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, AlTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING DECLARANT'S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELUGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, A D THE U ERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN ANY MAN PER Y APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING DECLARANT ANY ADVANCE NOTICE. INITIALS: C. AFTER AVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPUCABLE, BY INITIAUNG EACH STATEMENT THAT APPUES, THE UNDERSIGNED REPRESENTS THAT: INITIALS _ 1. DECLARANT WAS REPRESENTED BY DECLARANT'S OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE ~NO. 2. A REPRESENTATIVE OF LENDER SPECIRCALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE TO . DECLARANT'S AlTENTlON. 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: 'S IT AUAN GRILL ~ (Seal) LAlIERPI'IOL.on<Int.'"-_ta.IXIOlllCoprHoriandF__.l....,1.,,2lIllt. "'~_ . "'A L\CI'l\LPI.\DxI.FC r,..,.;rrPA>SfiCOTERIol EXHIBIT "B" COMMERCIAL GUARANl Borrower: Joey V'., Inc, D/B/A Joey'. Italian Grill (TIN: 03-0555654) 433 North 211\ S1raet Camp HIli, PA 17011 Guarantor: Joey V. Sullenberger (SSN: 197-60-6048) 481 Sample Bridge Road EnoIe, PA 17025 Lender: Mid Penn Bank Carll.le Pike Office 4622 Carll.le Pike Mechanlc.burg, PA 17055 AMOUNT OF GUARANTY. Thl. I. a guaranty 01 payment 01 the Note, Including without limitation the principal Note amount 01 Twenty Thou.and & 0011 00 Dollars ($20,000.00), GUARANTY. For good and valuable con.lderatlon, Joey V, Sullenberger ("Guarantor") ab.olutely and unconditionally guarant_ and promises to pay to Mid Penn Bank ("Lender") or Ita order, on demand, In legal tendet 01 the United Slatea 01 America, the 1__ (u that term I. dellnecl below) 01 Joey V'" Inc. DJ8IA Joey" Italian Grill ("Borrower") to Lendet on the term. and condition. .et lorth In thl. Guaranty. MAXIMUM UABIUTY, The maximum liability of Guarantot 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 (B) collection and sale of any collateral securing this Guaranty. The above limitation on liability is not a restriction on the amount 01 the Indebtedness of Borrower to Lender either in the aggregate or at any one time. II Lender presentiy holds one or more guaranties, or hereafter receives addltfonal guaranties from Guarantor, Lenda(s rights under all guarantles shall be cumulative. This Guaranty shall not (unless specffically provided below to the contrary) affect or invalidate any such other guaranties, Guaranto(s liability will be Guaranto(s aggregate liability under the terms of this Guaranty and any such other untermlnated guaranties. INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by thia Guaranty includes the Note, including (a) all principal, (b) all Interest, (c) all late charges, (d) all loan lees and loan charges, and (e) all collection costs and expenses relating to the Note or to any collateral for the Note, Collection costs and expenses include without limitation all of Lender's attomeys' fees. DURATION OF GUARANTY. This Guaranty wlil take effect whan 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 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 Lander receives from anyone or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lendar, without notice or demand and without I...enlng Guarantor'. liability undar thl. Guaranty, from time to time: (A) to make one or more addnlonal secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to axtend additional credn to Borrower; (B) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for peyment or other terms of the Indebtedness or any pert 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 orlglnalloen term; (C) to take and hold security for the peyment of this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fali or decide not to perfect, and release any such security, with or without the substitUtion of new coIlaterel; (D) to release, substitute, agree not to sue, or deal with anyone or more of Borrower's suraties, endorsers, or other guarantors on any terms or in any manner Lender may choose; (E) to determine how, when and what application of payments end credits shall be made on tha Indebtedness; (F) to apply such security and direct the order or manner of sale thareof, 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, transfar, assign or grant perticipatiOns in all or any pert of the Indebtedness; and (H) to assign or transfer this Guaranty in wools or in pert. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and werrants to Lender thet (A) no representations or agreements of any kind have been made to Guarantor which would limn or qualify in any way the terms of this Guaranty; (B) this Guaranty is executed at Borrowe(s request and not at the request of Lender; (el Guarantor has fuli power, right and authority to enter Into \his Guaranty; (0) 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 Lander, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any Interest therein; (F) upon Lende(s request, Guarantor will provide to Lender financial and croon information in form acceptable to Lender, and ail such financial information which currentiy has been, and ail 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 financlaJ 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 infonnation or documents acquired by Lender in the course of its relationship with Borrower. GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to fumish Lender with !he following: Annua' Statements. As soon as availabie, but in no event later than one-hundred.lwenty (120) days after 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, Federai and other govemmental tax returns, prepared by Guarantor. All financiaJ 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 prohiMed by applicable law, Guarantor waives any right to reqtlire 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 Loan No: 500030994 COMMERCIAL GUARANTY (Continued) Page 2 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, timo, 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. In addition to the waivers set forth herein, if now or hereafter Borrower is or shall become insolvent 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 McreditorM of Borrower within the meaning of 11 U.S.C. section 547(b), or any successor provision of the Federal bankruptcy laws. Guarantor also waives any and all 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; (8) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rig,ts 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 dr..charga of the Indebtedness on the basis of unjustified impairmant 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 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 benkruptcy law or law for the relief of debtors, the Indebtedness shell be considered unpaid for the purpose of the enforcement of this Gueranty. Guarantor further waives and agrees not to assert or claim at any time any deductions to the aroount 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 eech 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 eny applicable law or public policy, such waiver shall be effective only to the extent parmilled by iaw or public policy. RIGtfT OF SETOFF. To the extent parmilled 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 joinUy 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 applicabfelaw, 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 benkruptcy, by an assignment for the benef~ of creditors, by voluntary liquidation, or otherwise, the assets of Borrower epplicable to the payment of the claims of both Lender and Guarantor shall be paid to Lender end 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 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 foliowlng 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 axtent 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. Choice of Venue. If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, 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 fuUy 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 resuR 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 Loan No: 500030994 COMMERCIAL GUARANTY (Continued) Page 3 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,u and "Lender" include the heirs, successors, assigns, and transferees of each of them. If a court finds that eny provision of this Guaranty is not valid or should not ba enforcad, 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 unenforceabfe. 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. Notlceo. Unless otherwise providad by applicable law, any notice requirad to ba given under this Guaranty shall ba given in wr~ing, and shall ba effective when actually deliverad, when actually receivad by telefacsimile (unless otherwise requirad by law), when depos~ad with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepa)d, directad to the addresses shown near the beginning of this Guaranty, Any parly 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 shaJl not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provisk>n or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and Guarantor, shaJI 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 sofe discretion of Lender. Successors and Assigns. The terms of this Guaranty shaJl 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. DEFINmONS. The following capitallzad words and terms shall have the following meanings when usad in this Guaranty. Unless spacfficelly statad 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 Unifonn Commercial Code: Borrower. The word "Borrower" means Joey V's, Inc. D/B/A Joey's Italian Grill and includes all co-slgners and co-makers signing the Note. GAAP. The word "GAAP' means generally acceptad accounting principles, Guarantor. The word "Guarantor" means each and every person or entity signing this Guaranty, incluc:llng without IlrnltatiQfl 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. Indebtadn..... The word 'Indebtadness" means Borrowe(s indebtadness to Lender as mora particularly described In thi~ "Guaran'):: Lender. The word "lender. means Mid Penn Bank, its successors and assigns. Note, The word 'Note' means tha promissory note datad June 3, 2005, In the original principal amount 01 $20,000.00 ftOlJl 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 aJl 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 PAVMENT 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 SPECIFICALL V CALLED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BV INDEPENDENT LEGAL COUNSEL. . Loan No: 500030994 COMMERCIAL GUARANTY (Continued) Page 4 EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS, IN ADDmON, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DEUVERY 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 JUNE 3, 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. Seal) INDIVIDUAL ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA ) JJ4"PJ1IN :SS f/ j!.~ J Q 01) this("thllo ...) day of . ;It'; .!' , 20 A, before me IXiJt.jL G I. ,S t---4 , the undersigned Notary Public, personally appeared Joey V. Sullenberger, known to me (or satisfactorily proven) to be the person whose nama is subscribed to the within instrument, and acknowledged that he or she e for the purposes therein contained. COUNTY OF In witness wh ". " sal. eot NaIarlaI Seal 8KlckJ. GJassford. Notary NlIlc CIV Of HanlsbUrg, DauphIn County My eorrmss;on Exp;res Mer. 4, 2006 \t!n'I&. Pt.a_)MwiI ~OfNcDdll l.AllS;PAo:l~,V.,52l1,IIlOOl Copt._FInMoWII_.tno.ll1l17,lIOOI. M"siNo_ .PA L~LPI.\E20,FC Tfl-31%1' f'lHE(:crrEFII,l DISCLC....JRE FOR CONFESSION OPJDGMENT ...... $20.00... .~:~. 07~~...... ... ... ~=4.. ... O:.,r References in the shaded area are for Lender's use only and do not limli the applicability of this document to any particular loan or item. Any item above containing ..... has been ommed due to text length Iimllations. "lltl81"" "" " . n a ...........-"..--.."...----.. Borrower: Joey V's, Inc. D/B/A Joey's Italian Grill (TIN: 03-0555654) 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 Bank Carlisle Pike Office 4622 Carlisle Pike Mechanlcsburg, PA 17055 DISCLOSURE FOR CONFESSION OF JUDGMENT I AM EXEClffiNG, THIS DAY OF OBLIGATING ME TO REPAY THAT AMOUNT. A. I UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUOGMENT AGAJNST 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 ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S ~r;::;~:G~?;;WtGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. B. I FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WrrHOUT EITHER ADVANCE NOnCE 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 NonCE ANO A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXEClffiON ON THE JUDGMENT, I AM KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN ANY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY :~:~:~!~:EAD AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLlES,I REPRESENT THAT: . 2O~ A GUARANTY OF A PROMISSORY NOTE FOR $20,000.0 INITIALS - 1. I WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION wrrH THE GUARANTY. ~..' 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY "1> - 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 rr: AND THAT 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 CONSTrrUTE AND HAVE THE EFFECT OF A SEALED IN~STRUMENT ACCORDING TO LAW. ~ Seal) lAS(Il Pl'IO ~ v. 5.;011.011_ Copt. _ F........... '""-. I"". ,..., 2OOt. All RlQnIo __ _ P'" 1.\Cf1lLPl.\D3ll.F<:: T'l-3\Z'I ~SECOTEI'IIIol 1''''''1 \~') C," ....,..,. , C:- ~-, ". (;) - C> -~ -D ->,-. *==- ""'('" ~' -, 1(', ~ ""6 -. ...--0 --:::::-:, ...u -0 ~'"O .::::s -t::... '-~ ~ ;;:, , ~ .0_ _. ""> CN ~ ~ "" ~, ;:s- -;-. o I Plainti ff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. blcXl(J'-II17 c/'.II MID PENN BANK, v. JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, a/kla JOSEPH V. SULLENBERGER,: Defendants NOTICE OF ENTRY OF JUDGMENT TO: Joey V's, Inc. d/b/a Joey's Italian Grill 433 North 21" Street Camp Hill, PA 1701\ Joey V. Sullenberger a/k/a Joseph V. Sullenberger 481 Sample Bridge Road Enola, PA 17025 YOU ARE HEREBY NOTIFIED that on the following Judgment has been entered against you in the above-captioned case in the sum of $23,668,02 plus continuing interest from February 15, 2006, at the rate of$5,OO per diem, continuing late charges, continuing costs, and continuing attorneys fees. Date: fA ,'~ ~ffE!!t , prot\l6i1otary. ...--' I hereby certify that the name and address of the proper person to receive this notice under Pa.R,C.P. 236 is: Joey V's, Inc. ,\ d/b/a Joey's Italian Grill 433 North 21" Street Camp Hill, PA 17011 Joey V. Sullenberger a/kla Joseph V. Sullenberger 481 Sample Bridge Road Enola, P A 17025 " Por este medio se le 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, PA \7011 Joey 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, 06-1127 JOEY V'S, INC., d/b/a JOEY'S IT ALlAN GRILL, and JOEY V. SULLENBERGER, aIk/a JOSEPH V. SULLENBERGER, Defendants AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT IN EXECL'TION THEREON NOTICE OF DEFENDANT'S RIGHTS TO JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, AND JOEY V. SULLENBERGER a/kJa 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 ofJudgment and Execution Thereon Notice of Defendants' Rights to Joey V, Sullenberger, by handing a copy ofthe 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'lfj).~\\. t6~JrJ"VlD Elisabeth Benecke Sworn to before me this 8th day of March, 2006 ~il,a/~~ otary Public COMM! . rl1 OF PENNSYLVANIA I'/g(artaISeal Linda S, O~8V.n, Notary Public City 01 Harnsburg, Dauphin Coonly My Cort1M1ies1On El<pirlS FGb. 25, 2010 Member, Pennsylvania Assoclatlon of Notaries . , ___I _._.~--- MID PENN BANK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO. 06-1127 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 IT ALlAN GRILL, AND JOEY V. SULLENBERGER a/kla JOSEPH V. SULLENBERGER I, Elisabeth Benecke, hereby affirm the following: 1. [am an adult over the age of eighteen (18), and 1 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 2958.1 ofJudgment and Execution Thereon Notice of Defendants' Rights to Joey V's, by handing a copy of the same to an individual, of the 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" Street, Camp Hill, Cumberland County, Pennsylvania 17011. . 8l.L\0~~ tL Q:;Q N\..Qjl1lNU ') Elisabeth Benecke Sworn to before me this 8th day of March, 2006 #~A ...aa~ Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Linda B. Deaven. Notary Public City Of Hanisburg, Dauphin Coonty My Commission Exj:>res Feb. 25, 2010 Member, Pennsylvania AssociaUon of Notaries -~~, c~'