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HomeMy WebLinkAbout06-6607 KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. Dl- -UD"( (!tuL'-Tf/L-L. COMMERCE BANK/HARRISBURG, NATIONAL ASSOCIATION v. SHERMAN E. THURSTON III and SHEILA A. THURSTON CONFESSION OF JUDGMENT Defendants CONFESSION OF JUDGMENT By virtue of the authority conferred by each Guaranty, a copy of which is attached to the Complaint filed in this action, I appear for each Defendant and confess judgment in favor of the Plaintiff and against the Defendants for the sum of $56,101.46, and costs of suit. ~ Eugene E. Pepinsky, Jr. Attorney for each Defendant by virtue of the authorization contained in the Guaranty KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 COMMERCE BANK/HARRISBURG, NATIONAL ASSOCIATION Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. v. SHERMAN E. THURSTON III and SHEILA A. THURSTON CONFESSION OF JUDGMENT Defendants NOTICE OF DEFENDANT'S RIGHTS A judgment in the amount of $56,101.46 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166/ (800) 990-9108 KEEFER WOOD ALLEN & RAHAL, LLP BY:~ Eu e E. Pepinsky, Jr. Attorney 1.0. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17198-1963 (717) 255-8051 Attorneys for Commerce BanklH*risburg, National Association KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 COMMERCE BANK/HARRISBURG, NATIONAL ASSOCIATION Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO 0(.- (,t1J7 e;ULt~~ CONFESSION OF JUDGMENT v. SHERMAN E. THURSTON III and SHEILA A. THURSTON Defendants COMPLAINT 1. Plaintiff Commerce Bank/Harrisburg, National Association is a national banking association, whose address is 3801 Paxton Street, Harrisburg, Pennsylvania 17111. 2. Defendant Sherman E. Thurston III is an adult individual, whose address is 1072-4 Lancaster Boulevard, Mechanicsburg, Pennsylvania 17055. Defendant Sheila A. Thurston is an adult individual, whose address is 816 Flintlock Ridge Road, Mechanicsburg, Pennsylvania 17055. 3. On or about March 31, 2004, each Defendant, for good and valuable consideration, executed and delivered a commercial guaranty (the "Guaranty"). A true and correct copy of each Guaranty is attached hereto, made a part hereof and marked Exhibit "A". 4. The Guaranty referred to in Paragraph 3 above has not been assigned by Plaintiff to any person or organization. 5. Judgment has not been entered on the Guaranty referred to in Paragraph 3 above in any jurisdiction. 6. Each Guaranty provides that Plaintiff may confess judgment against Defendant after the amounts thereunder became due for the entire principal balance of the Guaranty and all accrued interest and late charges, together with costs of suit and an attorney's concession of ten percent (1 0%). 7. The amounts under the Guaranty have become due. 8. The amount due on the Guaranty as of November 8, 2006, is $51,001.33. Ten percent (10%) of the unpaid principal balance is $5,100.13. KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 9. This confession of judgment is not being filed against a natural person in regards to a consumer credit transaction. WHEREFORE, Plaintiff demands judgment against Defendants in the sum of $56,1 01.46, together with interest as may hereafter accrue and costs of suit. KEEFER WOOD ALLEN & RAHAL, LLP Date: November 9, 2006 By: ~~ Eugen . Peplnsky, Jr. Attorney 1.0. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 VERIFICATION The undersigned Angela Masser, hereby verifies and states that: 1. She is Vice President of Commerce Bank/Harrisburg, National Association, Plaintiff herein; 2. She is authorized to make this Verification on its behalf; 3. The facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information and belief; and 4. She is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. , 4904, relating to unsworn falsification to authorities. Dated: November~, 2006 -~ '.......F '.~ ......., ,-"'.- "-* Irll... . Reierences in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or .tem. Any item above containing....... has been omitted due to text length limitations, Maturity Loan No Calli Coil Account initials Ptinc~pai Borrower: The Montessori School & Children's House. Inc. (TIN: 90-0113194) 816 Flintlock Ridge Road Mechanicsburg, PA 17055 lender: COMMERCE BANK/HARRISBURG N.A. COMMERCIAL BUSINESS DEPARTMENT 100 SENATE AVENUE CAMP HILL. PA 17011 (717) 975-5630 Guarantor: Sherman E. Thurston. III (SSN: 036-48-2715) 816 Flintlock Ridge Road Mechanicsburg. PA 17055 AMOUNT OF GUARANTY. The amount of this Guaranty is Unlimited. CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, Sherman E. Thurston, III ("Guarantor") absolutely and unconditionally guarantees and promises to pay to COMMERCE BANKIHARRISBURG N.A, ("Lender") or its order, on demand, in legal tender of the United States of America. the Indebtedness (as that term is defined below) of The Montessori School & Children's House. Inc. ("Borrower") to Lender on the terms and conditions set forth in this Guaranty. Under this Guaranty. the liability of Guarantor is unlimited and the obligations of Guarantor are continuing. INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes any and all of Borrower's indebtedness to Lender and is used in the most comprehensive sense and means and includes any and all of Borrower's !iabilities, obligations and debts to Lender, now existing or hereinafter incurred or created, including, without limitation, all loans, adval1ces, interest, costs, debts, overdraft indebtedness, cre::!it card indebtedness, lease obligations, other obligations, and liabilities of Borrower, or any of them. and any present or future judgments against Borrower, or any of them; and whether any such Indebtedness is voluntarily or involuntarily incurred, due or not due. absolute or contingent, liquidated or unliquidated, determined or undetermined; whether Borrower may be liable individually or jointly with others, or primarily or secondarily, or as guarantor or surety; whether recovery on the Indebtedness may be or may become barred or unenforceable against Borrower for any reason whatsoever; and whether the Indebtedness arises from transactions which may be voidable on account of infancy, insanity, ultra vires. or otherwise. DURA TlON OF GUARANTY, This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any notice to Guarantor or to Borrower, and will continue in full force until all Indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have been performed in full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to Lender, by certified mail, at Lender's address listed above or such other place as Lender may designate in writing. Written revocation of this Guaranty will apply only to advances or new Indebtedness created after actual receipt by Lender of Guarantor's written revocation. For this purpose and without limitation. the term "new Indebtedness" does not include Indebtedness which at the time of notice of revocation is contingent. unliquidated. undetermined or not due and which later becomes absolute. liquidated. determined or due. This Guaranty will continue to bind Guarantor for all Indebtedness incurred by Borrower or committed by Lender prior to receipt of Guarantor's written notice of revocation, including any extensions, renewals. substitutions or modifications of the Indebtedness. All renewals. extensions, substitutions, and modifications of the Indebtedness granted after Guarantor's revocation, are contemplated under this Guaranty and. specifically will not be considered to be new Indebtedness. This Guaranty shall bind Guarantor's estate as to Indebtedness created both before and after Guarantor's death or incapacity, regardless of Lender's actual notice of Guarantor's death. Subject to the foregOing. Guarantor's executor or administrator or other legal representative may terminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect. Release of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this Guaranty. A revocation Lender receives from anyone or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. It is anticipated that fluctuations may occur in the aggregate amount of Indebtedness covered by this Guaranty, and Guarantor specifically acknowledges and agrees that reductions in the amount of Indebtedness. even to zero dollars ($0.001. prior to Guarantor's written revocation of this Guaranty shall not constitute a termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs. successors and assigns so long as any of the guaranteed Indebtedness remains unpaid and even though the Indebtedness guaranteed may from time to time be zero dollars ($O.OO), GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender. either before or after any revocation hereof, without notice or demand and without lessening Guarantor's liability under this Guaranty, from time to time: (A) prior to revocation as set forth above, to make one or more additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend additional credit to Borrower; (B) to alter. compromise. renew. extend, accelerate, or otherwise change one or more times the time for payment 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; IC) 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; (0) to release. substitute, agree not to sue, or deal with anyone or more of Borrower's sureties. endorsers, or other guarantors on any terms or in any manner Lender may choose; IE) to determine how, when and what application of payments and credits shall be made on the Indebtedness (F) to apply such security and direct the order or manner of sale thereof, including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine; (G) to sell, transfer, assign or grant partiCipations in all or any part of the Indebtedness; and (H) to assign or transfer this Guaranty in whole or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) no representations or agreements of any kind have been made to Guarantor which would limit or Qualify in any way the terms of this Guaranty; (BI this Guaranty is executed at Borrower's request and not at the request of Lender; ICI Guarantor has full power, right and authority to enter into this 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 Guarentor: lEI Guarantor has not and will not. Wltr,OUt the prior written consent of Lender, sell, lease, assign, encumber. hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets. or any interest therein; IF) upon Lender's request. Guarantor will provide to Lender financial and credit information in form acceptable to Lender, and all such financial information which currently has been, and all future financial information which will be providec 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 ad'Jers'!lv affllct Guarantor's financial C'Jndit1on; 'H) no litigation, claim. InvIlstlgatlon. administrative proceeding or similar action lincludlng those for unpaid taxIls) against Guarantor IS pend1r-:; or COMMERCIAL GUARANTY (Continued) Page 2 threatened: (II lender has made no representation tc Guarantor as to the creditworthiness of Borrower; and (J) Guarantor i"',as established adequate means of obtaining from Borrower on a contlnUIr"'g basis information regarding Borrower's f,nanc'a: 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 obiigatlon to disclose to Guarantor any information or documents acquired by lender in the course of its relationship with Borrower, GUARANTOR'S WAIVERS. Except as prOhibited by applicable law, Guarantor waives any right to require lender (AI to continue lending money or to extend otr.er credit to Borrower; tSI 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; (Cl to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor; (D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor. or any other person; tE) to give notice of the terms, time, and place of any public or private sale of personal property security held by lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; IF) to pursue any other remedy within lender's power; or IG) to commit any act or omission of any kind. or at any time, with respect to any maner whatsoever, Guarantor also waives any and all rights or defenses arising by reason of (AI 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; (BI any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement. including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (C) any disability or other defense of Borrower, of any other guarantor. or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever. other than payment in full in legal tender. of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness; lEI 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 tne 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 arts reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy. such waiver shall be effective only to the extent permined 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 all accounts Guarantor may open in the future. However. this does not include any IRA or Keogh accounts. or any trust accounts for which setoff would be prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law. to hold these funds if there is a default, and Lender may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to Lender. whether now existing or hereafter created. shall be superior to any claim t!1at 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. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty: Amendments. This Guaranty. together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No al~eration 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. Anorneys' Fees: Expenses. Guarantor agrees to pay upo.... demand all of Lender's costs and expenses. including Lender's attorneys' fees and lender's legal expenses, Incurred 10 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 enjorcement, Costs and expenses include lender's anorneys' jees and legal expenses wnether 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 Guarantv are f:lr 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. construed and enforced in accordance with federal law and the laws of the Commonwealth of Pennsylvania. This Guaranty has been accepted by Lender in the Commonwealth of Pennsylvania. Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parol eVidence is not requi'ed to interpret the terms oj this Guaranty, Guarantor hereby indemnil,es and holds lender harmless from alllosses. -----~ --~~-~ ~=- ~'~ .....,...'\vII""\L UUj..\KAI\l1 y (Continued) "' d" ~,d '0 h", bee" O"d '0 <h, P'"'' w '''' <h, 000 '''' 'od 000"'0' "," '0 "Qo", ,od w h,,, ,h,,, " mo" <h,,, 00, ''''Ow" o,m" '" ,hi, Go",,,,, " wh,o ,h" G o,,"o,V " "" o"d bv mo" <h,o 00, Go,,,,,,,,, <h, w"d, , 8",ow,,' 'Od . Go" ,,,,,,' ", P"'""V ",n m"" 01' 'od ,''V 00' " mo" " ,h'm, Th, wo<d, . Go" '0',,:' .. So "0 we<,' ,,0d'L'od,,' '0, 'od, ,h, h"", '0"","" ""go" 'od "'0"",,, of ,,,h of <hom, '" ooon "od, <h" 'ov P",,,ioo 0' <h" Go",o" " 00< 'oIid " ,hOO," '" b, 'o'''''d, <h" ,," bv ",," win OOf m"o <h" <h, '''' " "" G","o,v wiU 00' b, "'id ""'O<"d, Th,,,,o,,,, co"', w,,, ,,,"co <h, "" of <h, pm,i",,, 0' '''' Go",,,,v ,,,,, " , p"" 00 of ,"" Go""" m,V b, 'oood '" b, """r,d 0' """"0"''''" ""V 00' " mo" 0' 8o"ow" " G""",,, '" '''pO" "0 ", ""c'''''P', 10m"" lo,b,lo" OOmp'm", " ,im,'" ,,,",,,', " " OOf 0"",." '" Leod" fO "'qo'" "'fO 'h, pow", 0' Bonow" " Go,,,,,,,, 0' 0' 'h, offi"", di"""" """"', m,oo,,,,, Of ofh" 'geo" ",iog " pO'PO"iog fO '" 00 'h,i, b,h,,,, "d "V i"d,,,,,,,,,, m'd, 0< """d io "10"" oPOo fh, pm'''''d '''''''' 0 I '"Oh pow", ,h,n be '"''"'''''d oOd" 'hi, Guaranty, NOf;,,,, Uo'", Ofh"w". pfO'id'd bV 'oofi"", I,w, oov 00''', "Qoi", fo b, g'"o ood" 'hi, Go",,,,V ,h", be g'"o io w'''iog, ood, ''''p< 100 "YO, "ioo 00 <I,,, bV Go" ''''00, ,h,II " ,",,,,,, 'N hoo "'o,IIV d"i""d, w hoo "'o,nV "'''''d bv "''',epim,le 1001", Ofh"wi" "Qo'''d bV "wI. whoo d'po,i,,, w"h , O"iooollv "oogoi"d '''migh, 000",,,, 0<, if "',iI'd, whoo d""i", io th, Uhi", 5",,, m,II, " Ii,,, 01,,,, '''<lIi'd Of "gi"'''d m,II po"'g. P""id, di'''''d fo ", 'dd,,,,,, ,howo "'" 'h, b'g;omog 01 thi, Go"oo", An "YO'''ioo 00<1", bV Go""", ,h,II b, '" w'i<log ,ed ""I be ''''''i" opoo d"i",V fo Lood" " PfO'id'd '" fh, ""ioo 01 "', Go",,,,v OO<ld'd . DURA TI ON 0 F G UA RANTY," A "V "nV m,v 'hoog, i" 'dd"" IOf ooli,,, OOd" 'hi, G O"OOtv bv g""'g Io<m" w",,,oo 00'''' fo 'h, Ofh" "ni" , ""i'Viog "" 'h. pO'oo" 01 ", 00 Ii " i, fo 'hoog, fh, p",,', 'dd"" , Fo< 00"" pO'oo"', Go"oo,o< 'g"" fO ',ep Leod" iOIOfm'd " ,n <1m" 01 Go",,,,o<', '0'''", 'dd"", Uo',,, Ofh"wi" pfOvid'd bV 'ppli"b', "w, if ",,' i, mo<, than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notIce glvcn to ali Guarantors. No W.;v" bV Loo'", Lood" ,h,II OOf b, d"m'd fo hev, W""d oov "'gh" ood" "" Go"oo" 00'." 'o,h wei,,, i, giveo io w'iliog ood "gOOd bV Lood", No d",V Of omi"ioo 00 fh, p", 01 Lood" io "'''i'iog ooy fighl ,h,II op,,,,, " , w,i,,, 01 so,h ,ighi 0< ooy Ofh" figh" A w.iv" bv Lood" 01 , 'fO,i,ion 01 'hi, Go""" ,h,II OOf P"jodi" 00 00",<1'0" , w,i,,, 01 Lood,,', ,ight Ofh"wi" fO d'm"d "'i" oomplioo" with "" p,",i,iOO 00 ooy Ofh" p,",i,ioo 01 'hi, Go",,,,V, No p'ioo w,i,,, bV Lood", 000 "V 000'" 01 d"fiog b"w",o Leod" ood Go"ooto<, ,holl 'oo'<lto" , w,i,,, 01 eoV 01 Lood,,', 'ighi, 0< 0' ooy of Go,,,,,,oo', obfigOfio", " to eov 10'0" ,"oo""ioo" Whoo"" Ih, '00"", 01 Lood" i, "Qoi"d OOd" 'hi, Go",,,,V, ", 9"oliog 01 'o,h '00"01 bV Lood" i" .nv i","n" sh,II "Of '00'<1'0" OOO<looiog 000"", to 'ob"qo,", io"oo", wh", 'o,h 00""", is "qoi"d ood ie "I "''' 'o'h '00,,", m,V b, 9"""d 00 wi'hh"d i" the sole discretion of Lender. So"",so,, ood AUlg", Th, "'m, of ,"" Go,,,",V sh'" b, b'Odiog opoo Go",,,,o<, ood opoo Go",",Of', h,i" , ""00" representatives. successors. and assigns, and shall be enforceable by Lender and its successors and assigns. DEFINITIONS, Th, lonowiog "pi"li"d wo<d, ood '''m, 'h,n hev, fh, 10now'og m"oiog, wheo o"d '" "', Go",,,,V, Uo',u '''''Ii"nV '''fed fo 'h, ooo'""y, ,n "'"00''' fo dolt" 'moo"" 'h'" m",o ,mooo" ;0 "w'o' moooV 01 'h. Uol"d 5"", 01 Am.,;", WOfd, ood "'m, 0'" '" 'h, "ogo'" ,h,n ioolod, fh, p'o"l. ood fh, plo,,' ,h,1t ioolod, fhe ,iogo'", " ", '00"" moy "Qoi", Wood, OOd "'m, OOf OIh"wi" defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial COde: Bonow". Th, wood "onow,,' m,,", Th, MOO""Ofi S'hoo' & Child",,', Hoo", 100, ood ""Iod" "I oo";go", eo. pO.m",,, ,;go;og the Note. . Go."n",. Th, wo<d "Go'''oloo" m,,", "'h eod ""y pe'eon Of ooli'V ,igoiog th;, Go,,,",V, iO"odiog without limit'lioo Sh"moo E, Thurston. III. Go.,,",Y. Th, woo, "Go"ootV' m,,", th, go",",y IfOm GO""'tOf fo L""'", ioolodiog wi"ool fimi"lioo , gO""'IV of ,II 0< "" of lhe Note. 10d,bledo.". Th, wo<d "lod'bI'do",' m"" 'onow,,', iod'bledo", fO Lood" as mOf' P"Ii,ol"'v d'so';b" ;0 fhi, Go"",,,, Lender. The word "Lender" means COMMERCE BANK/HARRISBURG N.A., its Successors and assigns. NOle, Th, wOfd "No,," m,,", "'d iO"od" w;"oo, Iim"Ofioo ,II 01 'o"ow,,', 'fOmi"o<V n,,,,, "'dlOf ""it .g",moo" "idoo,;og 'onow,,', loen obligOfio", ;0 I,va, of leod", "g."" wifh ,II "oow,l, 01, ""0"00' 01, modifi'Ofio", of. "liooooiogs 01. '''eolid'';on, of and substitutions for promissory notes or credit agreements. R"'Ie' 0.'0 m",,, , The wo<d, . R"Of,d OOOOmoo,," m"o .11 'fOmi"ooV OOt... ,,,", 'g",meo". loeo "",m",,,, oo,ilOom ootal 'g",m,,,,,. go""'ti,,. "'o'ifV 'g"'m",,,. mootg'g". d",d, of ,"0", '''o'i" deeds. OOllOf"., moo'g"", "'d of' ooh.. i","om,,,,,, agreements and documents, Whether now or hereafter existing, executed in connection with the Indebtedness. CONFESSION OF JUOGMENT, GUARANTOR HEREBY IRREVOCABLY AUTHORIZES ANa EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF "NNSYLVANlA. OR ElSEWHERE. TO APPEAR AT ANY TIME FOR GUARANTOR AFTER THE AMOUNTS HEREUNOER BECOME OUE AND WITH OR WITHOUT COMPLAINT FlLEO, CONFESS OR ENTER JUOGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL 'A LANCE OF THIS GUARANTY ANa ALL ACCRUEO INTEREST, LATE CHARGES ANa ANY ANa All AMOUNTS EXPENOED OR ADVANCEO 'Y LENOER RElATING TO ANY COLLATERAL SECUR'NG THE INOEBTEDNESS, TOGETHER W'TH COSTS OF SUIT. ANa AN ATTORNEY'S COMM'SS'ON OF TEN PERCENT f'O", OF THE UNPAIO PRINCIPAL BALANCE ANa ACCRUEO INTEREST FOR COLLECTION, 'UT 'N ANY EVENT NOT LESS THAN FIVE HUNOREO OOllARS 1$5001 ON WHICH JU DG MENT OR JUOG MENTS 0 NE OR MO RE EXECUTIONS MAY'S SUE IMMEOIA TEl Y; ANa FOR SO DO'NG, TH '5 GUARANTY OR A COpy OF TH,S GUARANTY VERIFIEO BY AFFlOAVIT SHAll BE SUFF'CIENT WARRANT. THE AUTHOR'TY GRANTED IN THIS GUARANTY TO CONFESS JUOGMENT AGAINST GUARANTOR SHAll NOT BE EXHAUSTEO BY ANY EXERC'SE OF THAT AUTHORITY, BUT SHAll CONT'NUE FROM TIME TO TIME ANa AT All TIMES UNTIL PAYMENT 'N FUll OF All AMOUNTS OUE UNOER TH'S GUARANTY, GUARANTOR HEREBY WA'VES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEAR'NG IN CONNECTION W'TH ANV SUCH CONFESSION OF JUDGMENT ANa 5 TATES THA T EfTH ER A R EPR ESENT ATIVE OF LENOER 5 PEO FlCAll Y CA LLEO TH'S CON"SS'ON OF JUOGMENT PROV'S'ON TO GUARANTOR'S A TTENT'ON OR GUARANTOR HAS BEEN REPRESENTED BY 'NOEPENOENT LEGAL COUNSEl, Page 3 COMMERCIAL GUARANTY (Continued) Page 4 EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ AL~ THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADD1TION. 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 31.2004. 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. X S ISeall INDIVIDUAL ACKNOWLEDGMENT COUNTY OF r-: 0" th~. \he?' I ';" dOV O' \'--\c'-,~t..h . 20 C 4. . b.'o," m. ~ ,,- ~ C\. ,. \ (\ L . K _1\.>...1, 1 nJC,)"\ . the undersigned Notary Public. personally appeared Sherman E. Thurston. III. known to me lor satisfactorily 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 set my hand and official seal. C U.l'y\ \-;.)tr t (~nG\ ) } SS } COMMONWEALTH OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA Notarial Seal' ., , I Susanne R. Fuhrman. Notary Public East Pennsboro Twp.. Cumberhind County My Commission Expires Oct. 10.2005 Member. Pennsylvania Association Clf NlltarieS ~>L '~J1 ( C\ \. 0 C.....tV\..J'-'! " \. 1v 'O/l.. 'K\[ ~ Notary Public in and for the State of ___J~t\- LASl-,.g L....... "1._ '.lJ.JO.OCM c:.................--- ~..... '.'. JOOt. All................... . "... ":,WtN""'5\l.I'WMrf\C""'~\I.20.'C ,",""110 ..... ..., . "'-' "" .... '-' I.... . V" ,",V'll' ......,...,'V.\I V, U !UilIn....,. . . Principal $50,000.00 Loan Date 03-31-2004 Maturity Loan No 3140388 Call I Coli Account Initials References in the shaded area are for Lender's use only and do not limIt the applicability of this document to any particular tCJ" or item. Any item above containing" . . ... f,as been omitted due to text length limitations. Borrower: The Montessori School & Children's House. Inc. (TIN: 90-0113194) 816 Flintlock Ridge Road Mechanicsburg, PA 17055 Lender: COMMERCE BANK/HARRISBURG NA. COMMERCIAL BUSINESS DEPARTMENT 1 00 SENATE A VENUE CAMP HILL, PA 17011 (717) 975-5630 Affiant: Sherman E. Thurston, III ISSN: 036.48.2715) 816 Flintlock Ridge Road Mechanicsburg, PA 17055 DISCLOSURE FOR CONFESSION OF JUDGMENT /Jj I AM EXECUTING, THIS ',,: DAY OF I) ft: )('i./ , 20C/,/ A GUARANTY FOR AN UNLIMITED 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 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 ~I~~~~~ ;R31t.t~DGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFE'SSION 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 :~~~~:~~~~ANNER PERMITTED, BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY ADVANCE NOTICE, C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE. AND BY PLACING MY INITIALS NEXT TO EACH STATEMENT WHICH APPLIES. I REPRESENT THAT: INITIALS 1. I WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY. l.J;::::aJ: 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY TO MY ATTENTION. , . D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS $10,000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN I INITIALED AND SIGNED IT; AND 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. AFFIANT: x.M.,~,EJ}r~ . (Seal) ~SE'R >1110 \'''''11'''0. v... 5:3 ]000. ello, .....,...(7 ~"''''''c'.oI S".",.,,".. 1"0: 1 991.:000& "II 1'1'<1"" 1'I'I_...'Id ,II" lot 'W''''APOS',LIIWIIII'C~+'1.II!_ ,:130 ~c TIIt_ 1 , '70 ;111'1. II vVIVIIVIL.I\vIML UUMnMI'II I \ References in the shaded area are for Lender's use only a"d 00 not limit the applicability of this document to any particular loan or item, Any item above containing" . . ." ;,as been omitted due to text !ength limitations. Loan No Call I Cbll Initials Pri~C'ipal Borrower: The Montessori School & Children's House, Inc. (TIN: 90.0113194) 9 16 Flintlock Ridge Road Mechanicsburg, PA 17055 lender: COMMERCE BANK/HARRISBURG N.A. COMMERCIAL BUSINESS DEPARTMENT 100 SENATE AVENUE CAMP HILL. PA 17011 (717) 975-5630 Guarantor: Sheila A. Thurston (SSN: 079.66.25781 816 Flintlock Ridge Road Mechanicsburg, PA 17055 AMOUNT OF GUARANTY. The amount of this Guaranty is Unlimited. CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, Sheila A. Thurston ("Guarantor") absolutely and unconditionally guarantees and promises to pay to COMMERCE BANK/HARRISBURG N.A, ("Lender") or its order, on demand, in legal tender of the United States of America, the Indebtedness (as that term is defined belowl of The Montessori School & Children's House, Inc. ("Borrower") to lender on the terms and conditions set forth in this Guaranty. Under this Guaranty, the liability of Guarantor is unlimited and the obligations of Guarantor are continuing, INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes any and all of Borrower's indebtedness to Lender and is used in the most comprehensive sense and means and includes any and all of Borrower's liabilities, obligations and debts to Lender, now existing or hereinafter incurred or created, including, without limitation, all loans, advances. interest, costs, debts, overdraft indebtedness. credit card indebtedness, lease obligations, other obligations, and liabilities of Borrower. or any of them, and any present or future judgments against Borrower, or any of them; and whether any such Indebtedness is voluntarily or involuntarily incurred, due or not due, absolute or contingent. liquidated or unliquidated. determined or undetermined; whether Borrower may be liable individually or jOintly with others, or primarily or secondarily, or as guarantor or surety; whether recovery on the Indebtedness may be or may become barred or unenforceable against Borrower for any reason whatsoever; and whether the Indebtedness arises from transactions which may be voidable on account of infancy, insanity, ultra vires. or otherwise. DURATION OF GUARANTY, This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any notice to Guarantor or to Borrower, and will continue in full force until all Indebtedness incurred or contracted before receipt by lender of any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have been performed in full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to lender, by certified mail, at Lender's address listed above or such other place as Lender may de'signate in writing. Written revocation of this Guaranty will apply only to advances or new Indebtedness created after actual receipt by Lender of Guarantor's written revocation. For this purpose,and without limitation. the term "new Indebtedness" does not include Indebtedness which at the time of notice of revocation is contingent. unliquidated, undetermined or not due and which later becomes absolute, liquidated. determined or due, This Guaranty will continue to bind Guarantor for all Indebtedness incurred by Borrower or committed by Lender prior to receipt of Guarantor's. written notice of revocation, including any extensions. renewals. substitutions or modifications of the Indebtedness, All renewals. extensions, substitutions, and modifications of the Indebtedness granted after Guarantor's revocation, are contemplated under this Guaranty and, specifically will not be considered to be new Indebtedness. This Guaranty shall bind Guarantor's estate as to Indebtedness created both before and after Guarantor's death or incapacity. regardless of Lender's actual notice of Guarantor's death. Subject to the foregoing. Guarantor's executor or administrator or other legal representative may terminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect, Release of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this Guaranty. A revocation Lender receives from anyone or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. It is anticipated that fluctuations may occur in the aggregate amount of Indebtedness covered by this Guaranty. and Guarantor specifically acknowledges and agrees that reductions in the amount of Indebtedness, even to zero dollars (SO.OOI. prior to Guarantor's written revocation of this Guaranty shall not constitute a termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs. successors and assigns so long as any of the guaranteed Indebtedness remains unpaid and even though the Indebtedness guaranteed may from time to time be zero dollars (SO.OOI. GUARANTOR'S AUTHORIZATION TO lENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice or demand and without lessening Guarantor's liability under this Guaranty, from time to time: (Al prior to revocation as set forth above, to make one or more additional secured or unsecured loans to Borrower, to lease equipment or other gOOds to Borrower. or otherwise to extend additional credit to Borrower; (B) to alter, compromise. renew. extend. accelerate. or otherwise change one or more times the time for payment or other terms of the Indebtedness or any part of the Indebtedness. including increases and decreases of the rate of interest on the Indebtedness; extensions may be repeated and may be for longer than the original loan term; (CI 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 IF) to apply such security and direct the order or manner of sale thereof. including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine; (Gl to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this Guaranty in whole or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) no representations or agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this Guaranty is executed at Borrower's request and not at the request of lender; (C) Guarantor has full power, right and authority to enter into this 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 Lender. sell, lease. assign, encumber, hypothecate, transfer, or Otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein; IF) upon Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, and all such financial information which currently has been, and all future financial information which will be provided to Lender is and Will be true and correct in all material respects and fairly present Guarantor's financial condition as of the dates the financial information is provided; (G) no material adverse change has Occurred in Guarantor's financiall 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; (HI no litigation, claim. investigation, administrative proceeding or similar nction (including those for unpaid taxes) against Guarantor is pending or COMMERCIAL GUARANTY (Continued) Page 2 threatenec: (I) Lender has made no representation to Guarantor as to the creditworthiness of 50rrower; 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 ~o obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationShip with Borrower, GUARANTOR'S WAIVERS. Except as prohibited by applicable law. Guarantor waives any right to require Lender (A) to continue lending money or to extend other credit to Borrower; (Bl 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: IC) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor: (0) to proceed directly against or exhaust any collateral held by lender from Borrower, any other guarantor, or any other person; IE) to give notice of the terms, time, and place of any public or private sale of personal property security held by lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code: (F) to pursue any other remedy within lender's power; or (G) to commit any act or omission of any kind, or at any time, with respect to any matter whatsoever. Guarantor also waives any and all rights or defenses arising by reason of (AI any .one action" or "anti-deficiency. law or any other law which may prevent lender from bringing any action. including a claim for deficiency. against Guarantor. before or after lender's commencement or completion of any foreclosure action. either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights tn proceed against Borrower for reimbursement, including without limitation. any loss of rights Guarantor may suffer by reason of any law limit:ng, 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; leI any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness; IEl 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 shall 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 all accounts Guarantor may open in the future. However. this does not include any IRA or Keogh accounts. or any trust acc.ounts 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. MISCELLANEOUS PROVISIONS, The following miscellaneous provisions are a part of this Guaranty: Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guarantv. 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 ccs:s and expenses. including Lender's attorneys' fees and Lender's legal expenses. incurred ,n connection \/Iolth the er,forcement of this Gua'an:y. Lender may hire or pay someone else to help enforce thiS Guaranty, and Guarantor shall pav the costs and expenses of such enforcement. Costs and expenses include lender's attorneys' fees and legal expenses wheV',er or not there IS a laWSUit, Includ;ng a~orneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any autOrT"2tlc stay or inJunction!. a;:,oeals. and any anticipated post'Judgment collectIon services. Guara'1tor also shall pay all court costs ard s'Jch additional tees as may be Ct'ected by the court. Caption Headings. Caption headings in this Guarantv 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. construed and enforced in accordance with federal law and the laws of the Commonwealth of Pennsylvania. This Guaranty has been accepted by lender in the Commonwealth of Pennsylvania. Integration. Guarantor further agrees that Guaran'tor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attorf\ey with respect to this Guaranty: the Guaranty fully reflects Guarantor's intentions and parol evidence is not required to interpret the terms of this Guaranty. Guarantor hereby In::emnifies and holds lender harmless from all losses, --- ----- I... . __.1__ - - ....- .'. -, ..._.. ~.___......... t"';:.........._........., ......... '-'UIVIIVIl...n\JIHL.. \.JUHn,Hd\l1 (Continued) Page 3 be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectively shall mean all and anyone or more of them. The words "Guarantor." "Borrower," and "Lender" include the heirs. SUCCessors, assigns, and transferees of each of them, If a court finds that any provision of this Guaranty is not valid or should not be enforced, that fact by itself will not mean that the rest of this Guaranty WIll not be valid or enforced, Therefore, a court will enforce the rest of the provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid or unenforceable. If anyone or more of Borrower or Guarantor are corporations, partnerships, limited liability companies. or similar entities. it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on their behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Notices, Unless otherwise provided by applicable law, any notice required to be given under this Guaranty shall be given in writing, and, except for revocation notices by Guarantor, shall be effective when actually delivered. when actually received by telefacsimlle (unless otherwise required by law), when deposited With a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class. certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Guaranty. All revocation notices by Guarantor shall be In writing and shall be effective upon delivery to Lender as provided in the section of this Guaranty entItled "DURA TION OF GUARANTY." Any party may change its address for notices under this Guaranty by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address, For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicable law, if there is more than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors. 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. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America, Words and terms used in the singular shall include the plural. and the plural shall include the singular, as the context may require, Words and terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower, The word "Borrower" means The Montessori School & Children's House. Inc, and includes all co-signers and co.makers signing the Note. Guarantor. The word "Guarantor" means each and every person or entity signing this Guaranty. including without limitation Sheila A. Thurston. 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 COMMERCE BANK/HARRISBURG N.A.. its successors and assigns. Note. The word "Note" means and includes without limitation all of Borrower's promissory notes andlor credit agreements evidencing Borrower's loan obligations in favor of Lender, together with all renewals of. extensions of. modifications of. refinancings of, consolidations of and substitutions for promissory notes or credit agreements. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements. loan agreements. environmental agreements. guaranties. security agreements, mortgages. deeds of trust, security deeds, collateral mortgages. and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA. OR ELSEWHERE, TO APPEAR AT ANY TIME FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED. CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST. LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($5001 ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR A COpy OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT, THE AUTHORITY GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY. GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. COMMERCIAL GUARANTY (Continued) Page 4 EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS, IN ADDITION. EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED MARCH 31. 2004. THIS GUARANTY IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. GUARANTOR: A ~ X 1~t:2$~ Sfleila A. Thurston (Seal) INDIVIDUAL ACKNOWLEDGMENT . I COMMONWEALTH OF PENNSYlVANIA COUNTY OF t\...V\'\ \-:)Lr-' G.I}V\. ) ) SS ) r.- Ot\.,!his. the ,3 \ bt' day of ~\G...I- ch '.20 0'-\. . before me Sl~~CAJ"\ IIV k --'^-~~ 'n'o' r<, c...... ('\ . th~ undersigned Notary Public. personally appeared Sheila A. Thurston. known to me (or satisfactorily 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 set my hand and official seal. COMMONWEALTP. OF PENNSYLVANIA Notarial Seal Susanne R. Fuhrman. Notary Public East Pennsboro Twp.. Cumberland County My Commission Expires Oct. 10. 2005 Member. Pennsylvania Association nl Notaries ~ .~. -1J._ r.o ....... .~ ,\..~. 'l"' Vl,-,i.... .\.... i( \... J1...J.: ~}A.. h '\C--....... ~~.\- Notary Public in and for the State of LASEJI Me L....... v.. S.U.)O.CXM c..... ....... ,...... Selu~....... ''''.1001. .... ""Pt-......... ... ":\.....,..~~C"'-L....\l.2G.PC "'."170 N.', .....,."""'''''....'''' .,.... · '-II' '-'''''''... ........."..11.....,.'1 VI V 1\...1 I ." I L., III , . Prin~it>al $50,000.00 Loan Date 03.31.2004 Maturity Loan No 3140388 Call/Call Account Initials 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'" .... has been omitted due to text length limitations. Borrower: The Montessori School & Children's House. Inc, (TIN: 90-0113194) 816 Flintlock Ridge Road Mechanicsburg. PA 17055 Lender: COMMERCE BANK/HARRISBURG N.A. COMMERCIAL BUSINESS DEPARTMENT 100 SENATE AVENUE CAMP HILL, PA 17011 (717) 975.5630 Affiant: Sheila A, Thurston (SSN: 079-66-2578) 816 Flintlock Ridge Road Mechanicsburg. PA 17055 DISCLOSURE FOR CONFESSION OF JUDGMENT ...., , I AM EXECUTING. THIS '_ J./ 'Ja' ,/1 / )' DA Y OF ILL .tC . 20CL!. A GUARANTY FOR AN UNLIMITED 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 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 ENTERING JUDGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. INIT!ALS:~: . , 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 NOTICE. INITIALS: ',.:.'..."....:'.'.:.~...:... C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE. AND BY PLACING MY INITIALS NEXT TO EACH STATEMENT WHICH APPLIES. I REPRESENT THAT: INITIALS 1. I WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY. .~ 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY TO MY ATTENTION. D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS $10.000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN I INITIALED AND SIGNED IT; AND 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, AFFIANT: . 4;. ~~ X ~-4, &: ~i a A. Thurston (Seal) LASE III "ao -.........Q. "J.. "i :J JO QO.I ,:.,,,. ......,-" .....""<;.... :3,,'....,.'1..,. '..,. 1997 ~004 .11 Ill.",,..., ~..,.""." ".... ....IN.PCl'j ~;l>',,,,.. C" ~:.>," 8JO ~C HI '" 70 "A. I!! iQ. ~ N ~ ::0 ~ ~ 7ft . ~ ~ 8 F ;; ~ -u ~ ~ ~ p:: ~ ~ :e R2 J::- (') 1.- f' J \~! ~'D c:) .< r0 -::j -0::.;':: - Lil KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMMERCE BANK/HARRISBURG, NATIONAL ASSOCIATION v. NO. 01, - ~;tJ~ll~ SHERMAN E. THURSTON III and SHEILA A. THURSTON CONFESSION OF JUDGMENT Defendants NOTICE To: SHERMAN E. THURSTON III and SHEILA A. THURSTON, Defendants You are hereby notified that on November 1:5-, 2006, judgment by confession was entered against you in the sum of $56,101046 in the above captioned case. Dated: November --1:I-, 2006 YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166/ (800) 990-9108 I hereby certify that the following is the address of the defendant(s) stated in the certificate of residence. Sherman E. Thurston III . 1072-4 Lancaster Boulevard Mechanicsburg, PA 17055 Sheila A. Thurston 816 Flintlock Ridge Road Mechanicsburg, PA 17055 ./ ~ Attor:-;;Plaint (s) "l KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMMERCE BANK/HARRISBURG, NATIONAL ASSOCIATION v. NO, SHERMAN E. THURSTON III and SHEILA A. THURSTON CONFESSION OF JUDGMENT Defendants NOTICE SHERMAN E. THURSTON III and SHEILA A. THURSTON, Defendido Usted esta siendo notificando que el de November del 2006, se anoto en contra suya un fallo por confesion en la suma de $56,101.46 en el caso mencionado en el epigrafe. FECHA: November , 2006 USTED DE BE LLEV AR IMMEDIA T AMENTE ESTE DOCUMENTO A SU ABOGADO. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VA Y A A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-31661 (800) 990-9108 Certifico que la siguiente direccion es la del defendidola segun indicada en el certificado de residencia: Sherman E. Thurston III 1072-4 Lancaster Boulevard Mechanicsburg, PA 17055 Sheila A. Thurston 816 Flintlock Ridge Road Mechanicsburg, PA 17055 AItO~aintiff(S) KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 COMMERCE BANK/HARRISBURG, NATIONAL ASSOCIATION Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 06-6607 civil Term SHERMAN E. THURSTON III and SHEILA A. THURSTON CONFESSION OF JUDGMENT Defendants PRAECIPE .,!'i TO THE PROTHONOTARY: Please mark this judgment "Satisfied" by order of the Plaintiff. Date: November~, 2006 KEEFER WOOD ALLEN & RAHAL, LLP By: ~~k~' Attorney 1.0. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff r:;~ ~~:~:~} o~ ~ F~'" '::.:(\ s: ("'0 --0 -'" ~_"' c' o \..D