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HomeMy WebLinkAbout06-1128 , - Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. a. /I;;!'i/ (!, I.! I I 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 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: $49,204.13 $ 3,239.34 (plus $10.93 per diem) $ 981.12 $ 500.00 Total: $53,924,59 plus continuing interest from February 15, 2006, at the rate of$10.93 per diem, continuing late charges, continuing costs, and continuing attorneys fees. I, Date:! ' ".1,/', ,2006 By: Marc Kelly 2320 orth Second Street Harrisburg, PA l7110 Telephone: (717) 238-6570 Attorneys for Defendants ;\ ~. --~ -- ..) I.!,-) -, -j! :--J D . Cunningham & Chemicoff, P,C. Marc W. Witzig, Esquire P A Attorney Ident. No. 29929 Kelly M. Knight, Esquire P A Attorney Ident. No. 87365 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 mwitzi~@cclawpc.com kknight@cclawDc.com Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. blt1Jfo --/idfCr'v,l 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: 1. 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 March 25, 2005, Borrower executed a Promissory Note in favor of the Bank in the 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 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$50,000.00, together with interest at the initial rate of 8.000% per annum, on the unpaid balance from March 25, 2005, until paid in full. 2 8. As set forth in the Note, Defendant agreed to pay the Note in forty-seven (47) payments of $1 ,226.42 each payment, with the first being due on March 5, 2005, and all subsequent payments due on the same day of each month after that, with an irregular last payment estimated at $1,226,32 due on AprilS, 2009. 9. The Bank has made demand upon Borrower and Guarantor for payment in full of all amounts owed to Plaintiff under and in connection with the Note. 10. To date Defendants have refused and failed to pay in full all sums due and owing under the Note and Guaranty. 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, any failure by the Borrower to make any payment when due under the Note constitutes a default under the Note. 13, 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 of the indebtedness is impaired, constitutes a default under the Note. 3 14. Borrower and Guarantor have failed to make payment when due under the Note. Specifically, the installments of $1,226.42 that came due on June 5, 2005, July 5,2005, August 5,2005, September 5, 2005, October 5, 2005, November 5, 2005, December 5,2005, January 5 2006, and February 6,2006, 15, There has occurred material adverse change in Borrower's and Guarantor's financial conditions, and the Bank believes the prospect of payment or performance of the Note is impaired. 16. The Bank, in good faith, believes itself to be "insecure." 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. 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 and Guarantor agreed to pay the Bank that amount, 4 including but not limited to, the Bank's attorneys' fees and legal expenses, whether or not there was a lawsuit, including attorneys' fees. 20, There have occurred material adverse changes in the Borrower's and the Guarantor's financial condition. 21. The Bank believes the prospect of payment or performance under the Note is impaired. 22. As of February 15, 2006, the sum due and owing under the Note is: Principal: $49,204.13 Interest: $ 3,239.34 (plus $10.93 per diem) Late Charges: $ 981.12 Attorneys Fees and Legal Expenses: $ 500,00 Total: $53,924.59 plus continuing interest from February 15, 2006, at the rate of$10,93 per diem, continuing late charges, continuing costs, and continuing attorneys fees. 23. 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, 5 24. 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 $53,924.59 plus continuing interest, late charges, costs, and attorneys fees, 25. The Note authorizes the Bank to confess judgment against the Borrower. 26, The Guaranty authorizes the Bank to confess judgment against the Guarantor. 27, Judgment has not been entered against either Defendant in any jurisdiction under the Note or the Guaranty, 28. Neither the Note nor the Guaranty have been assigned. 29, Judgment by confession is not being sought herein against a natural person in connection with a consumer credit transaction. 30. 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, 31. 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. 6 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 $53,924.59, plus continuing interest from February IS, 2006, at a rate of$10,93 per diem, continuing late charges, continuing costs, and continuing attorneys fees, and further grant Plaintiff such additional relief as is just and proper. By: /, ,,' Date: ' " I -' I , ,. " , 2006 home!llf/complain/mid.joe3 7 717 238 4809 Cunningham and Cherni 1058:35 am 02-22-2006 9/011 MID PENN BANK, : IN THE CO'URT OF COMMON PLEAS : aF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff : NO. v. JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, a/kIa JaSEPH V. SULLENBERGER,: Defendants AFFlDA VIT OF LAST KNOWN ADDRESS I, 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 17011. The last known address of Defendant, Joey V. Sullenberger aIkIa Joseph V. Sullenberger, is 481 Sample Bridge Road, Enola, Cumberland County, Pennsylvania 17025. MID PENN BANK Sworn to me this ~day of February, 2006 c;;;g-", ~ . . LL~/ ~ otary Puo1ic COMMONWEALrH OF PENNSYLVANJA Notarial Seal Dixie L Ross, Notary Public MiHersburg Bom, Dauphin County My Commission Expires May 5, 2001 Member, Pennsylvania Association of Notalies 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/kla JOSEPH V. SULLENBERGER,: Defendants AFFIDAVIT OF KELLY M. KNIGHT. ESQUIRE 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 ~~day of February, 2006 I /1,,( /. 1.._ _ ,_ / ~ I! Notary Public :Ui,uJiiAL C';FJ,; .,:uu:::AN~iE l\N!;~TFlA~j: , \H'i ~>i_:- n1' 1~'l,;;i': ':n f',- f". 'e,;'l,r' :~".~ '- ':"->":1,,:.::"1\;:'- 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 IT ALlAN 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, lne" 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 a/k/a Joseph V. Sullenberger, is 481 Sample Bridge Road, Enola, Cumberland County, Pennsylvania 17025, C o. 29929) A Atty, No, 87365) / Date: ; ; . ',;(<1/ ,2006 717 238 4809 Cunningham and Cherni 105911 a.m 02-22-2006 13/5H MID PENN BANK. : IN THE CaURT OF COMMaN 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-MILITARY SERVICE COMMONWEALTH O'F PENNSYLVANIA : ss; COUNTY aF DAUPlllN 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 aIkIa Joseph V. Sullenberger is over the age of eighteen (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. COMMONWcAUlI cr PENNSYLVANIA Notarial Seal . Dixie L. Ross, Notary Public MlIlersburg Boro, Dauphin County My Commission Expires May 5, 2007 Member, PennSylv;:mi~ Association of Notanes 717 238 4809 Cunningham and Chern] 10:59:03 a.m 02-22-2006 12 {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 GRlLL, 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, information and belief. I unden;tand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities. Date: F(boJa(Y aJ/ ,2006 SWORN and Subscribed to Before me this 22nd day of February, 2006 ~ NOTARY PUBLIC COMMONWEALrH OJ' PENNSYLVANIA Notarial Seal Dixie L. Ross, Nouny Public MiUersburg Boro, Dauphin County My Commission Expires May 5, 2007 Member, PennsylvanIa Association of Notaries EXHIBIT "A" PROMISSORY NOTE I Principal 50000,00 .. Loan Date 03-25-2005 Maturity 04'-0~2009 L.oan No 500029319 References in the shaded ares are for Lender's use only and do not limit the applicability of this document to any particular rosn or item. An item above containin II..." has been omitted due to text len th limitations. Borrower: Joey V's, Inc. (TIN: 03-(555654) 433 North 21 st Street Camp Hili, PA 17011 L.ender: Mid Penn Bank Derry Street OfIIce 4091 Derry Street Harrisburg, PA 17111 Principal Amount: $50,000.00 Interest Rate: 8.000% Date of Note: March 25, 2005 PROMISE TO PAY. Joey V's, Inc. ("Borrower") promises to pay to Mid Penn Bank ("Lender"), or order,ln lawlul money 01 the United Stetes 01 Amertce, the principal amount 01 Ftlly Thousand & 001100 Doltars ($50,000.00), together with Interest at the rate 01 1.000% per annum on the unpaid principal balance from March 25, 2005. until paid In lull. PAYMENT. Borrower will pay this loan In 47 payments 01 $1,226.42 each payment and an Irregular last payment estimated at $1,226.32. Borrower's IIrst payment Is due May 5, 2005, and all subsequent payments are due on the same day 01 each month aIIer that. Borrower's IInal payment will be due on April 5, 2009, and will be lor all prtnclpal and all accrued Interest not yet paid. Payments Include principal and Interest. Unless otherwise agreed or required by applicable law, payments will be applied IIrstto any accrued unpaid Interest: then to principal: then to any unpaid collecllon costs: and then to any late charges. The annual Interest rate lor this Note Is computed on a 3651360 basis: that Is, by applying the ratio 01 the annual Interest rate over a year 01 360 days, multiplied by the outstanding principal balance, mulllplled by the actual number 01 days the principal balance Is outstanding. Borrower will pay Lender at Lender's address shown above or at such other placa as Lender may designate In wrtllng. PREPAYMENT PENALTY. Upon prepayment 01 this Note, Lender Is entitled to the lollowlng prepayment penally: A penally 01 live percent (5.00%) 01 the outstanding loan principal balance", the time 01 prepayment lithe prepayment occurs durtng the IIrstloan year: a penally 01 lour percent (4.00%) 01 the outstanding loan principal balance at the lime 01 prepayment II the prepayment occurs durtng the second loan year; a penally 01 three percent (3.00%) 01 the outstanding loan prtnclpal balance at the lime 01 prepayment" the prepayment occurs durtng the third loan year; a penally 01 two percent (2,00%) 01 the outstanding loan principal balance at the lime 01 prepayment" the prepayment occurs durtng the Iourth loan year. The prepayment penally shall be In ellectlor the original lour (4) year Interest rate period, unless modllled In writing. Notwithstanding anything to the contrary, Borrower may prepay this loan, without penally, from Internally generated Iunds. Except lor the Ioregolng, Borrower may pay all or a portion 01 the amount owed earlier than It IS due. Early payments will not. unless agreed 10 by Lender in writing, relieve Borrower of Borrower's obligation to continue .to make payments under the payment schedule. Rather, early payments will reduce the principal balance due and may result in Borrower's making fewer payments. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. AJI wriUen communications concerning disputed amounts. including any check or other payment instrument that Indicates that the payment constitutes "payment in full" of the amount owed or that Is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: Mid Penn Bank, Derry Street Office, 4098 Derry Street, Harrisburg, PA 17111, LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 10.000% of the regularly scheduled payment or $25.00, whichever Is greater. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity. Lender. at its option, may. if permilled under applicable law, increase the interest rate on this Note 5.000 percentage points. The interest rate will not exceed the maximum rate permiUed by applicable law. If judgment is entered In connection with this Note, interest will continue to accrue on this Note after judgment at the existing interest rate provided for in this Note. DEFAULT. Each of the following shall conslltute an event of default ("Event of Default") under this Note: Payment Default. Borrower fails to make any payment when due under this Note. Other Defaults. Borrower fails.JG--comply with QJ' 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 turnished 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 taws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Aff~tlng 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. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender Loan No: 500029319 PROMISSORY NOTE (Continued) Page 2 that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether ornot there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings (including.effo~ .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 rlghllo any jury trial In any acllon. proceeding, or counlerclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Nole will be governed by lederal law applicable to Lender and, to the extenl nol preempted by lederallaw. Ihe laws 01 the Commonwealth 01 Pennsylvania wilhoul regard 10 ils conlllcts 01 law provisions. This Nole has been accepled by Lender In Ihe Commonwealth 01 PennsylvanIa, CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lende(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 alJ 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 permiUed 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 thls paragraph. COLLATERAL. Borrower acknowledges this Note is secured by the following collateral described in the security instrument listed herein: motor vehicles described in a Commercial Security Agreement dated March 25, 2005. INCORPORATION OF COMMITMENT LETTER. The terms and conditions of a Commitment Letter dated March 23. 2005, between lender. Borrower. and Guarantor, together with any modifications and amendments, are hereby incorporated into this Agreement as if the Commitment LeUer were restated herein in its entirety. PRIMARY DEPOSIT ACCOUNTS. Borrower agrees to open and maintain ils 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 on~uarter of one percent (0.250%). SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Bqrrower, and upon Borrower's heirs, personal representatives, successors and assjgns, 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 notity us if we report any inaccurate information about your account{s) to a consumer reporting agency. Your wriUen notice describing the specific inaccuracy(ies) should be sent to us at the following address: Mid Penn Bank, Derry Street Office, 4098 Derry Street, Harrisburg, PA 17111. GENERAL PROVISIONS. 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 tor 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 fiability. Aft such parties agree tllat 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 arB joint and several. If any portion at 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 AlTORNEY 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 AlTORNEY'S COMMiSSION OF TEN PERCENT (10%) OF THE UNPAIO 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 AlTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD AlL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAl AND IT IS INTENDED THAT THIS NOTE IS AND SHAlL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: JOEY V'S. INC. (Seal) By: lASER PRO LOnd,nll. ~or_ S,Z',JO.OOl Cop'.liorludf'nonc..1 SOluHon., Inc. 1~~7, <00', "'II Rogn'. Ro.orvd. . P'" L.\CfIILPLID20.fC TR-<l99f> PR_SECDTERM DISCLC JRE FOR CONFESSION 0' UDGMENT Principal 50 000.00 loan Date Maturity 03-25-2005 04-05-200& loan No 50002&31& 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 .... *" has been omitted due to text len th limitations. Declarant: Joey V's, Ine, (TIN: 03-(555654) 433 North 21st Street Camp Hili, PA 17011 Lender: Mid Penn Bank Derry Street Olllee 4098 Derry Street Harrisburg, PA 17111 DISCLOSURE FOR CONFESSION OF JUDGMENT THE UNDERSIGNED IS EXECUTING ON BEHALF OF DEClARANT, THIS A~ OAY OF ~4_(>J-. PROMISSORY NOTE FOR $50,000.00 OBLIGATING DECLARANT TO REPAY THAT AMOUNT. A. THE UNDERSIGNED UNDERSTANOS 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 RIGIfTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST DECLARANT UNDER THE NOTE, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGIfTS, INClUDING ANY RIGIfT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING ~~~::~~~.ECLARANT BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. B. THE UNDERSIGNED FURTHER UNDERSTANDS THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST DEClARANT WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE ALSO CONTAINS LANGUAGE THAT WOlLD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING DEClARANT'S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE NOTE, BEING FULlY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, THE UNDERSIGNED, ON BEHALF OF THE DEClARANT, IS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN ~N~;I:'As~Nr';;1'0~ BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING DEClARANT ANY ADVANCE NOTICE. C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, THE UNDERSIGNED REPRESENTS THAT: , 20 e>S;- A INITIALS 1, DECLARANT WAS REPRESENTED BY DECLARANT'S OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE NOTE. 'I-- \ '-~. 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: JO Seal) LASER PAD Llnd,ng. V... '_,',J9.QQ. Copr. Marl.n',.'n......1 Solullanl, Inc. "l97, 20'1'. "'1l1l'On.. R..lrvlcl, _ FA L ',CfIlLPlIDJO.FC TA-2~1HI PIl_SECDTEAIoII EXHIBIT "B" COMMERCIAL GUARANl References in the shaded area arB for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above conlainin "u... has been omitted due to text len th limitations. Borrower: Joey V's, Inc. (TIN: 03-4555654) 433 North 21 st Street Camp Hili, PA 17011 Lender: Mid Penn Bank Derry Slreet Office 4098 Derry Street Harrisburg, PA 17111 Guarantor: Joey V, Sullenberger (SSN: 197-61l-6048) 481 Sample Bridge Road Enola, PA 17025 AMOUNT OF GUARANTY. This Is a guaranty 01 paymenl 01 the Note, Including wlthoutllmllatlon the principal Note amount 01 Filly Thousand & 00/100 Dollars ($50,000,00). GUARANTY. For good and valuable conslderatlon, Joey V. Sullenberger ("Guarantor") absolutely and unconditionally guarantee8 and promises to pay to Mid Penn Bank ("Lender") or lis order, In legal tender 01 the Unlled States 01 America, the Indebtedness (as that term IS detlned below) ot Joey V's, Inc. ("Borrower") to Lender on the terms.and conditions set forth In this Guaranty. MAXIMUM LIABILITY. 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 provided below to the contrary) affect or invalidate any such other guaranties. Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties. INDEBTEDNESS GUARANTEED. The Indebtedness guaranleed by Ihis Guaranty includes the Nole, including (a) all principal, (b) all interest, (c) all lale charges, (d) all loan fees and losn charges, and (e) all collection costs and expenses relating to Ihe Note or 10 any collaleral for Ihe Nole. Collection costs and expenses include without limitation all of Lender's attorneys' fees. DURATION OF GUARANTY. This Guaranty will take effect when received by Lender wilhoul 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 Lender receives from anyone or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. GUARANTOR'S AUTHORIZATION TO LENOER. Guarantor authorizes Lender, without notice or demand and without lessening Guarantor's 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 the rate of interest on the Indebtedness; extensions may be repeated and may be for longer than the original loan term; (C) to take and hold security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such security, with or without the substitution of new collateral; (D) to release, substitute, agree not to sue, or deal with 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 direcl the order or manner of salelhereof, 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. Guaranlor represents snd wsrrants 10 Lender Ihal (A) no representalions or agreements of any kind have been made 10 Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this Guaranty is executed at Borrower's request and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into this Guaranty; (D) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has not and will not, without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein; (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. Guaranlor agrees to furnish Lender with the foiiowing: Annua. Statements. As soon as available, but in no event later than one-hundred-twenty (120) days after the end at each fiscal year, Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor. Tax Returns. As soon as available, but in no event later than 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 GMP, applied on a consistent basis, and certified by Guarantor as being true and correct. GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue fending money or to extend other credit to Borrower; (B) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor; (D) to proceed directly against or exhaust Loan No: 500029319 COMMERCIAL GUARANTY (Continued) Page 2 any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give notice ~f the term~. .time, and plac~ of any public ~r private sale at 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 aJllimes until paid be fully secured by collateral pledged by Borrower, Guarantor hereby forever waives and gives up in favor of Lender and Bo~rower, .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 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; (B) .any election of rem~dies by Lende.r Whic.h des.troys o~ o.thE!rwise adversely affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, Including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (C) any disability or other defense of Borrower, of any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in full in legal tender, of the Indebtedness; (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 law or in equity other than actual payment and performance of the Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise, or by any third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty. Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both. GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shalt be effective only to the extent permitted by law or public policy. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and aU accounts Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness 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 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. MISCB.LANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty: Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Attorneys' Feesj 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 aU court costs and such additional fees as may be directed by the court. Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the provisions of this Guaranty. Governing Law, This Guaranty will be governed by federal law applicable to Lender and, to the extent not preempted by federal law. the laws of the Commonwealth of Pennsylvania without regard to Its connlcts 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 at Dauphin County, Commonwealth of Pennsylvania. Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunio/ to be a~vised .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. Guarant,or hereby indemnifies and holds Lender harmless from all losses, claims, damages, and costs (including Lender's attorneys' fees) suffered or incurred by Lender as a result of any breach by Guarantor of the warranties representations and agreements of this paragraph. ' Interpretation. In all cases where there is more than one Borrower or Guarantor. then all words used in this Guaranty in the singular shall be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectively shall mean aU and Loan No: 500029319 COMMERCIAL GUARANTY' (Continued) Page 3 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 jf a provision of this Guaranty may be found to be invalid or unenforceable. If anyone or more of Borrower or Guarantor arB 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 mail 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. Lendar and Guaranlor hereby waive Ihe rlghllo any jury Irlalln any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means Joey V's, Inc. and includes all co-signers and co-makers signing the Note. GAAP. The word "GAAP" 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 March 25, 2005, In the original principal amount at $50,000.00 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 aU promissory notes, credit agreements, Joan 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 GUARAN1Y 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 GUARAN1Y 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: 500p29319 COMMERCIAL GUARANTY (Continued) Page 4 EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ AlL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAl ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED MARCH 25, 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. GUARANTOR: x~Ys~ (Seal) INDIVIDUAL ACKNOWLEDGMENT COMMONWEAlTH OF PENNSYLVANIA COUNTY OF C 1>...-.-.. ~e.t tl...4 ) )SS ) On this. the bl.6+-h day of ~ll J~ . 20 tl....':; . before me . the undersigned Notary Public, personally appeared Joey V. Sullenberger, kno n to me (or salis ctorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he or she executed the same for the purposes therein contained. In witness whereof, I hereunto ~~ML'l'1l~ ~SYLVANlA NctarlaISeeI Wendy A WJrnyer, Nc:UIy PubIc ORverTv.p" Peny CcunIy My CommIs8lon ElcpIreo Jan. 4. alO9 Member, Penn.y1vanla AslOdaUon Of Notartee 10... LASER PRO L'~dinll. V.f. $.l!5.30.001 Co~r_ H.rlan<:lF,nancial solUIIGnl, Inc. 19117. 2005. All R'\Ihl. R.nrvld. _ PA UCfIILPLIE20.fC TR-29!Hl PR-SECDrERM DISCLC JRE FOR CONFESSION O' UDGMENT Loan Date Maturity 03-25-2005 04-05-2009 Loan No 500029319 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 "*..,, has been omitted due to text length limitations. Borrower: Joey V's, Inc. (TIN: 0~555654) 433 North 21 sl Slreel Camp Hili, PA 17011 lender: Mid Penn Bank Derry Slreel Office 4098 Derry Street Harrisburg, PA 17111 Declarant: Joey V, Sullenberger (SSN: 197-60-&048) 481 Sample Bridge Road Enola, PA 17025 DISCLOSURE FOR CONFESSION OF JUDGMENT I AM EXECUTING, 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 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 AOVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF AllY 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 ADVAIlCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S ~N~;:::G ~~AGAINST 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 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 ON THE JUDGMENT IN ANY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY ADVANCE~t~. E.;...,.....'............. INITIALS:'.: C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOlLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES,I REPRESENT THAT: , 20".>;"'A GUARANTY OF A PROMISSORY NOTE FOR $50,000.00 INITIALS 1. I WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY. !:;7.P-----2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ~ ~O 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 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 CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. DEClARANT: ~ , ~,L~, (Seal) l"SER PRO l.nd'"lI, V.r. ~.1~ lO.OO. CGPr. Hulond FIno""., Solu"on.. In<, ,q'H, 20M. "'1I11,'iI~" R.uru'd. . PA L.\Cfl\lPl\DJQ,fC TR_2\l1Hl PR_SECDHRM , ' n c:. ~ --< ~ G ., n *- ~ '-, :r- ;t) ,~ ,~ ~ ---' ~ """,,--, ~ ~:;? "-l -:-R '\) ~ d : , ~ .- ~ , <:>Q --, .. ,.) ~ "\ 'Q- ~ ~ ~ . o Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 200&.-- (filPClv:f 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 'I Street Camp Hill, PA 17011 Joey V. Sullenberger alkla Joseph V. Sullenberger 481 Sample Bridge Road Enola, P A 17025 YOU ARE HEREBY NOTIFIED that on /). ~ ;Jt!-f)OOl: 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. ~wk~ Prot onotary /,/ . I hereby certify that the name and address of the proper person to receive this notice under PaRC.P, 236 is: Date: Joey V's, Inc. d/b/a Joey's Italian Grill 433 North 21'1 Street Camp Hill, P A 170 II Joey V. Sullenberger alkla Joseph V. Sullenberger 481 Sample Bridge Road Enola, P A 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, PA 17011 Joey V. Sullenberger 481 Sample Bridge Road Enola, PA 17025 MID PENN BANK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-1128 JOEY V'S, INC., d/b/a JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, a/kla 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 2958.1 of Judgment 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 offive 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. fl1N1 ~r.th..- ~Q~~lI ~ Elisabeth Benecke Sworn to before me this 8th day of March, 2006 ,~$,1mj~ Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Unda 8. Oeaveo, Notary Public City Of Hanisburg, Dauphin County My Commission Expires Fob. 25. 2010 Member, Pennsylvania AssociatJon of Notaries "~,I --\ I", MID PENN BANK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-1128 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/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 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 of 38-45 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. , ~OlM~ lbw~Y10 Elisabeth Benecke Sworn to before me this 8th day of March, 2006 cd;~ -<f /(}?hj~ Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Unda B. Deaven, Notary Public City Of Hanisburg. Dauphin County My CommissIon Expires Feb. 25, 2010 Member, Pennsylvania Association of Notaries ..-' . '" " t/I' MID-PENN BANK, : IN THE COURT OF COMMON PLEAS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : NO. 06-1128 v. : CNIL ACTION - LAW JOEY V'S, INC., d/b/a! JOEY'S ITALIAN GRILL, and JOEY V. SULLENBERGER, alk/a JOSEPH V. SULLENBERGER, Defendants AMENDED NOTICE OF ENTRY OF JUDGMENT TO: Joey V's, Inc. d/b/a Joey's Italian Grill Registered address: 433 North 21 st Street Camp Hill, PA 17011 YOU ARE HEREBY NOTIFIED that on ;2.. :2. 7 -C}~ the following Judgment has been entered against you in the above captioned case in the sum of $53,924.59 plus continuing interest from February 15, 2006, at the rate of$1O.93 per diem, continuing late charges, continuing costs, and continuing attorney's fees. Joey V. Sullenberger a/k/a Joseph V. Sullenberger 481 Sample Bridge Road Enola, P A 17025 Prothonotary ~ I hereby certify that the name and address of the proper person to rJ.c'eive this notice under Pa.R.C.P. 236 is: Date: .3 - /'V-oJ Joey V's, Inc. d/b/a Joey's Italian Grill Registered Address: 433 North 21 st Street Camp Hill, P A 17011 Joey V. Sullenberger alk/a Joseph V. Sullenberger 481 Sample Bridge Road Enola, P A 17025 I - /' .. ~ Por este medio se Ie esta notificando que el de del 2007, eVla 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 Registered Address: 433 North 2pt Street Camp Hill, PA 17011 Joey V. Sullenberger alk/a Joseph V. Sullenberger 481 Sample Bridge Road Enola, P A 17025