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HomeMy WebLinkAbout98-06062 i ~ ~ . cJ ~ ,~ c) , '> .J - ~ ~ I <.(l i ~..J:: '4i ~ Q ~ ~ .~ ~.\.. :2 \l -- .:; I ~ ':- I'~J I <t ~ <::Ju a ~ ~ - . .s - ~ Ir-i ~ 1:::1 '-' I Co ~ . ~ I'"lll"~, M! 'I 1'-" '/'" I, '!llll' I', Ifl CAI'ITA" I<I-:,;IOIJ 1,:1 ''.IN!lMI(' IJI-:VI':L()I'r~I':NT ,\d<I'ol'AT I ON. iJidlllt. d f I N Till-: CDUln OF cor~r'10N i'LE^" OF CUil,lil':liJ,MlIJ ('OUNTY, l'j':NNf>YLVANIA 98---LI_~:,_J___ CIVIL TERM v CIVIL ACTION LAVl JEFFREY S. COllICK and LUANN E. CO!lTCK, Defendants ACTION OF r~ORTGAGE FORECLOSURE NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed wi thout you and a judgment may be entered against yo~ by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD o~m, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse Carlisle, PA 17013 717-240-6200 l i ~, ~, The 1>1011111 ltt ill JIl'l~; till:; .II'" I()II 1(, tlJ!'I'('I'J~:I' ,I n,ii/I'lol'.!" rj,df'd December 2'1, ]0~JG, b(!llt/(~(!ll ,Jc'ffn'~y S. Cohick lllJd I,lldfltl !':. CCdllCk, rbrtgagors, and Capital Region Economic []evc]op!l1('nl CorporaLloll, Mortgilgee, which is recorded in Mortgage Book 13',8, Page'lI'l, 1n the Office of the Recorder of Deeds in and tor Cmnberland County, Pennsylvania. a copy of ~/hich is attached hereto and lncorporaled herein and marked as Exhibit A, 4 The premises subject to the mortgage is as follows: ALL THAT CERTAIN tract of land situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described pursuant to a survey by Thomas A. Neff, Registered Surveyor, on May 8, 1967, as follows: BEGINNING at a spike in the center of Township Route No, 469 (also known as Alexander Spring Road), said spike being 200 feet in an easterly direction along the center of said road from line of land now or formerly of Robert M. Frey; thence by land formerly retained by Armeda Shughart and now or formerly of Edgar W. Shughart, et ux, North 13 degrees 20 minutes West 200 feet to a stake; thence by land now or formerly of McCoy Brothers, Inc" orth 76 degrees 40 minutes East 100 feet to a stake; thence by the same, South 13 degrees 20 minutes East 200 feet to a spike in the center of Township Road No. 469; thence by the center of said Road, South 76 degrees 40 minutes West 100 feet to the Place of BEGINNING. CONTAINING ,459 ACRE, MORE OR LESS, UNDER AND SUBJECT, NEVERTHELESS, to all ughts of way, p.:lRCrnents, re~;L r icL iOIl~ .:indIa!" condi t ions o[ record. BEING improved with a commercial office building, , , " 5 The Defendants are the owners of the premises subject to the aforesaid mortgage. 6 On December 27, 1996, the plaintiff made a loan in the principal amount of $187,930.00 (the "Loan") to S-Pro Corporation, dba Rohrer's Original Stromboli (the "Borrower"), as evidenced by a Note of same date, a copy of which is attached hereto and marked as Exhibit "B", 7 The Plaintiff was willing to make the Loan to the Borrower provided that the Defendants guaranty to the Plaintiff that in the event of defaul t by the Borrower on the payment of the Note, that the plaintiff would be able to proceed and collect ~rom the Defendants to the extent of and limited by the value of collateral securing the guaranty of the Defendants, by virtue of the Mortgage attached as Exhibit A, the balance due on the Note together with all interesc, costs, fees, and charges relating thereto. " ( -, ( ,~ ' (, II, <- , , '(I~ [" " 1',"\ 2 'is ..J'.,J ..L I. I EXIf1Il1'1' "I" MOHTGAGE THIS IN~ENTURE made this 27th day of December, 1996, between Jeffrey S. Cohick and Luann E. Cohick, of 390 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania (the "Mortgagor") and CAPITAL REGION ECONOMIC DEVELOPMENT CORPORATION, a non-profit corporation organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania (the "ALO"). WHEREAS, the Mortgagor under a Guaranty bearing even date herewith (the "Guaranty"), incorporated herein by reference thereto and made a part hereof, is obligated to guarantee payment unto the ALO to the extent of the collateral secured hereby on or before the first day of November, 2000, the principal sum of One hundred and eighty thousand nine hundred and thirty and 00/100 Dollars ($187,930.00), together with interest thereon, lawful money of the United States of America in the manner provided in a Note and in a Loan Agreement bearing even date herewith, given by S-Pro Corporation d/b/a Rohrer's Original Stromboli(hereinafter the "Borrower"), as therein and herein set forth. NOW, THEREFORE, THIS INDENTURE WITNESSETH, and to secure the payment thereof, to the extent of the collateral secured herewith, due or to become due under the Note, the Loan Agreement, the Guaranty and this Mortgage (the "Indebtedness") and the performance of all other provisions hereof and of the Note to be performed by the Mortgagor, intending to be legally bound by these presents, does hereby grant, bargain, sell, convey, release, alien, confirm and assign unto the ALa, its successors and assigns, all that certain parcel of land fully and accurately described on Exhibit A, attached hereto and made a part hereof. TOGETHER with all and singular the buildings and improvements erected or to be erected thereon, streets, alleys, passages, ways, waters, watercourses, rights, liberties, privileges, hereditament and appurtenances whatsoever, thereunto belonging or in anywise appertaining, and the reversions and remainders and rents, issues and profits thereof, including all income arising therefrom and all insurance proceeds and proceeds of condemnation awards (collectively, the "Premises"). 11 BOO, 1358 PAGE 417 EXHIBIT I A 1'0 IIAVE AND '1'0 1101.1) lhe l'reminen hereby qranled or mentioned and intended no to be unto t.he ALO, j tn r;llcceB~iorn and assigns, to and for lhe only pr()pel~ "'H! dnd behoof of the ALO, itn succeSBors and aDsigrls forever. PROVIDED, 1I0WEVER, that if the Borrower shall and does pay to the ALO the IndebtedneoB toqether wilh interest th~reon and any other sums properly payable under the terms of the Note, the Loan Agreement and this Morlgaqe, on the date and in the manner provided in the Note, the Loan Agreement and this Mortgage, and keeps all the other covenants and promises herein and therein contained, then and from thenceforth this Mortgage and the estate hereby created, granted, transferred and assigned shall be void, but otherwise shall remain in full force and effect. AND THE MORTGAGOR HEREBY FURTHER COVENANTS AND AGREES AS FOLLOWS: 1. The Mortgagor has good, valid and marketable title to the Premises. The Mortgagor has the right, full power and lawful authority to grant, bargain, sell, convey, assign, transfer, mortgage, pledge, set over and confirm the same to the ALO in the manner and form herein done. The Premises are free and clear of all liens and encumbrances except those of record which have been previously disclosed in writing to the ALD. The Mortgagor will warrant and defend the rights and title of the ALO to all of the Premises against all claims. 2. The mortgagor will immediately do or cause to be done from time to time all things necessary so as to observe, conform, obey and comply with or will cause due observation, conformance, obedience and compliance with all requirements of any court or governmental authority relative to the Premises. (a) The Mortgagor shall duly and punctually guarantee payment, or cause to be paid, the Indebtedness, and at the time and times and in the manner as provided in and by the Guaranty and shall perform all other agreements and provisions hereof and thereof, and pay when due all other obligations and debts hereby secured. (b) The Mortgagor will duly and promptly pay and discharge, as the same shall become due and payable and before they become delinquent, all taxes, water and sewer rents, assessments and other governmental charges, levied or assessed or imposed upon or against the property mortgaged hereby or upon the rents, issues, income and profits therefrom so as to prevent the same from becoming or being an enforceable lien or claim against the property mortgaged hereby or the interest 12 BOO! 1358 rAGE 418 the Mortgagor having 0 priority over the lien of this Mortgage or the obligations of Mortgagor to the ALO under the Guaranty. Upon request, the Mortgagor will furnish, or will couse to be furnished to the ALO, not lenn than fifteen (15) days prior to the date on which payment of the same would become delinquent, receipts or other evidence satisfactory to the ALO of the payment of all such taxes, rates, assessments and other governmental charges. 3. The Mortgagor shall keep all buildings and improvements now or hereafter erected upon the Premises insured for the benefit of the ALO under an all-risk hazard insurance policy with boiler coverage, in an amount not less than the full insurable value of the property mortgaged hereby (excluding foundations and other parts below the surface of the lowest floor), as determined, upon request of the ALO, not more than once annually by an appraiser or rating bureau satisfactory to the ALO. The ALO shall be listed as a mortgagee on the policy in a standard mortgagee clause. In addition, the aforesaid policy shall have attached thereto, or the Mortgagor shall provide or cause to be provided by separate policy, either insurance insuring the Mortgagor against loss of rental for a period of not less than one year in an amount equal to the gross aggregate rental receivable during that period by the Mortgagor under the Agreement, or business interruption insurance, insuring all fixed charges of the Borrower (or any other person or entity that may form time to time be the Mortgagor's lessee or purchaser of the mortgaged premises), including the amount necessary to repay this Mortgage, for a period of not less than one year, such insurance to be acceptable to the ALO. During the period of construction of the Project on the Premises, the Mortgagor shall maintain builder's risk insurance in an amount satisfactory to the ALO and shall require its contractor to maintain worker's compensation insurance. The ALO shall receive copies of all of said policies upon the execution of this Mortgage and upon each renewal, expansion or modification ther.eof, together with a current Acord Evidence of Property Insurance Certificate. Any modification of such insurance policy must be approved by the ALO in writing prior to the effective date of such modification. The ALO may settle all claims under all such policies except worker's compensation and may demand, receive and receipt for all moneys becoming payable thereunder. The proceeds under any policy shall be paid by the insurer to the ALO as the ALO' s interest may appear, and the ALO in its discretion may apply the amount so collected toward the payment of the Indebtedness or toward the alteration, reconstruction, repair or restoration of the damaged portion of the Premises or any portion thereof. The Mortgagor shall prepay the premiums for all such insurance for at least one (1) year in 13 Bood358 PAGE 419 advance and thereafter deliver to the ALO evidence of payment of ill1 premiuIns due on SUGh insurance toqcther with cet"tificates of such insurance at least thirty (30) days before payment is due. All of such polici,," "hall contain provision for notice to the ALO not less than thirty (30) days in advance of any cancellation of such policy. The Mortgagor shall also secure such certificates from public officials as are available for the purpose or otherwise demonstrate to the satisfaction of the ALO that the Premises is not located within an area identified by Federal Emergency Management Agency as having "special flood hazards," as such term is used in the National Flood Insurance Act of 1968, as amended and supplemented by The Flood Disaster Protection Act of 1973, and in regulations, interpretations and rulings thereunder or in a zoned flood plain or flood hazard area as determined by local findings, determinations, ordinances, regulations or rulings, and if located therein, the Mortgagor shall secure the amount of flood insurance required by the ALO in its discretion and demonstrate payment of all premiums due therefor. All insurance policies described in this section 4 shall be written by insurance companies licensed to do business within the Commonwealth of Pennsylvania and satisfactory to the ALO. While this Mortgage is in effect, the Mortgagor shall also maintain worker's compensation insurance and public liability and property damage insurance on the Premises in amounts satisfactory to the ALO and shall deliver copies of such policies to the ALO. 4. The Mortgagor shall keep the Premises and all improvements thereon and all equipment appliances an property thereon that are to be attached to or may become a fixture thereto in good condition and repair and shall not remove, demolish or materially alter the buildings or improvements on the Premises or any equipment, appliances and property thereon that is to be attached to or may become a fixture thereto nor commit or suffer waste with respect thereto. The Mortgagor shall maintain the Premises in compliance with all applicable governmental requirements. In the event of damage to the Premises caused by fire or other casualty or condemnation, at the ALO's option the occurrence of such damage. The Mortgagor shall permit the ALO's agents at any reasonable time, and from time to time, to enter upon the Premises and the buildings and improvements constructed thereon for the purpose of inspecting and appraising the same. While the Mortgage is outstanding and unpaid, neither the Mortgagor nor its successors shall take or permit any manner impair the ALO's security under this Mortgage, including but not limited to the creation of any additional debt secured by the property mortgaged hereby and nor shall they, without the prior written approval of the ALO, convey, transfer, encumber, hypothecate, lease or otherwise dispose of the property mortgaged hereby. 14 BOOK 1358 PAGE 420 5. If the ALO retains the services of counsel in order to cure any default under this Mortgage or the Note, an attorney's fee amounting to five percent (51) of the principal indebtedness, but in no event less than the SUllI of Five lIundred Dollarn ($500.00), shall be payable by the /10rtgilgor to the ALO and shall be sccured hereby. The Mortgagor shall also pay all costs in connection with the satisfaction of thin Mortgage of record. 6. An event of default hereunder shall be any of the following: (i) the occurrence of any Event of Default under the Loan Agreement, (ii) failure to pay any sum required to be paid by the MORTGAGOR under the Guaranty and the Mortgage within thirty (30) days after the same becomes due and payable, (iii) failure by the Mortgagor to perform any other provisions hereof or of the Guaranty. Upon the occurrence of any such event of default, at the option of the ALa: (a) the entire unpaid balance of the Indebtedness shall become due and payable immediately, without further notice to the Mortgagor, and shall be recoverable by the ALa immediately or at any time or times thereafter, without stay of execution or other process; (b) the ALO may take immediate possession of the Premises as provided hereunder; and (c) the ALa may immediately exercise and all other rights and remedies provided in this Mortgage and in the Guaranty, or which may be available to the ALO, and all such rights and remedies shall be cumulative and concurrent and may be pursued singly, successively or together in the ALO's sole discretion, and may be exercised from time to time and as often as an occasion, or occasions, therefor shall occur until the Indebtedness hereby secured is paid in full. 7. If the ALO shall take possession of the Premises as provided hereunder, the ALO may in its sole discretion; (a) hold, manage, operate and lease the same to the Mortgagor or any other person or persons, on such terms and for such periods of time as the ALa may deem appropriate and the provisions of any lease made by the ALO pursuant hereto shall be valid and binding upon the Mortgagor notwithstanding the fact that the ALO's right of possession may terminate or this Mor.tgage may be satisfied of record prior to the expiration of the term of such lease; (b) make such alterations, additions, improvements renovations, repairs and replacements thereto as the ALO may deem proper; (c) remodel such improvements so as to make the same available in whole or in part for other industrial purposes; and (d) collect the rents, issues and profits arising from the Premises, past due and thereafter becoming due, and apply the same, in such order of priority as the ALO may determine, to the payment of all charges and commissions incidental to the collection of rents and the management of the Premises and all other sums or charges required to be paid by the 15 Boor1358pioE 421 f , J Mortgagor hereunder. In addition to the payment of "uch charges ilnd commissions, the ALD shall be entitled to ",-Lain not less than fifteen percent (15(~1 of such rontn, i~isue:j ilnd profits in payment for Lhe services of the ALD. All money" advanced by the ALD for the purposes aforesaid and not repaid out of Lhe rents collected shall immediately and without demand be repaid by the Mortgagor to the ALO, together with interest thereon at the rate of fifteen percent (15%) per annum, and shall be added to the principal of the Indebtedness and be secured by this Mortgage. The production of a receipt by the ALO shall be conclusive proof of a payment or advance authorized hereby, and Lhe amount and validity thereof. The taking of possession and collection of rents by the ALO as aforesaid shall not be construed to be an affirmation of any lease of the Premises or any part thereof, and the ALO or any other purchaser at any foreclosure sale may, if otherwise entitled to do so, exercise the right to terminate any such lease as though such taking of possession and collection of rents had not occurred. 8. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE MORTGAGOR. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGEMENT AGAINST THE MORTGAGOR, THE MORTGAGOR HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF TilE MORTGAGOR, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE MORTGAGOR HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. In case of anv default in any provision of the Guarantv of this Mortqaqe as set forth therein or herein (of which an affidavit on behalf of the ALO or the Commonwealth of Pennsylvania. actinq throuqh the Department of Communi tv and Economic Development, shall be sufficient evidence), then, and in anv such event. anv attornev of any court of record of pennsvlvania or elsewhere is hereby authorized and empowered to appear for the Mortqaqor. and all persons claiminq under or throuqh the Mortqaqor, and as attorney for the Mortqaqor and all persons claiminq under or throuqh the Mortqaqor. to siqn an aqreement for enterinq an amicable action of eiectment for possession of the Premises or anv part thereof and to confess iudqment therein aqainst the Mortqaqor, in favor of the ALO, whereupon a writ for possession may immediate Iv issue for the possession of the Premises. without any prior complaint, writ or proceedinq whatsoever; and for so doinq this Mortqaqe. or a copy hereof verified bv affidavit. shall be his sufficient warrant. This power may be exercised as often as the ALO shall require and shall not be exhausted by one or more or by any imperfect exercise thereof. 16 BOOK 1358 PAGE 422 If for any reason after such action has been commenced the same shall be discontinued or possession of the Premises shall remain in or be restored to the Mortga~or, the ALO shall have the right for the same default or any subsequent default to bring one or more further amicable actions as above prov ided to recover possession of the Premises. The ALO may bring such amicable action in ejectment before or after judgement on this Mortgage or on the Note, or after a sale of the premises by the Sheriff. If after execution and return of the writ of possession, the Mortgagor shall re-enter into possession of the Premises, the Prothonotary, upon praecipe and affidavit setting forth the facts filed within three years after the return of the writ upon which execution was completed shall issue a new writ of possession. 9. The Mortgagor waives the right of inquisition on any property levied upon under a judgment obtained in proceedings to collect the Indebtedness hereby secured or in proceedings on this Mortgage, and further waives and releases any and all benefits that may accrue to the Mortgagor by virtue of any law relating to appraisements, stay of execution or exemption of the Premises from levy or sale under execution, now or hereafter in force. A foreclosure sale shall constitute a foreclosure sale of all equity whatsoever of the Mortgagor in the Premises and the ALO shall, if it is the purchaser at the sale, hold the Premises and any part thereof so purchased free of any equity of redemption by reason of any circumstances whatsoever and not as collateral for any obligation. 10. No extension or indulgence granted to the Mortgagor, and no alteration, change or modification of the Guaranty consented or agreed to by the ALO, and no other act or omission of the ALO, including the taking of additional security or the release of any security, or the waiver by the ALO or failure by the ALO to enforce any provision of this Mortgage or Guaranty or to declare a default with respect thereto, shall constitute a release of the lien and obligation of this Mortgage or be interposed as a defense against the enforcement of this Mortgage, or operate as a waiver of any subsequent defaults or otherwise affect the right of the ALO to exercise all rights or remedies stipulated herein and in the Guaranty, except an act of the ALO which constitutes an express, effective written release and satisfaction of the Note. 11. In the event of the failure of the Mortgagor to pay any taxes, water and sewer rents, charges, claims, assessments, assessments for public improvements, liens or encumbrances or to furnish and pay for the insurance required hereunder, or to keep the Premises in good condition and repair, the ALO may, at its option, pay any or all such items together with penalties and 17 BooK1358 PAGE 423 interest thereon, and procure and pay f or ouch irwurance and repairs; and the ALa may at any time and from time to time advance such additional sum or sums as the ALa in itn Dolo diocretion may deem necessary to protect the oecurity of thio Mortgage. All ouch sums !l0 paid or advanced by the ALa shall inunediately and without demand be secured hereby and be repaid by the Mortgagor to the ALa, together with interest thereon at the rate of fifteen percent (15%) per annum, and shall be added to the principal of the Indebtedness and be secured by this Mortgage. The production of a receipt by the ALa shall be conclusive proof of a payment or advance authorized hereby, and the amount and validity thereof. 12. All covenants, stipulations and agreements contained in this Mortgage by or on behalf of the Mortgagor shall be binding upon its successors in title or interest and its assigns, whether so expressed or not. 13. This Mortgage may be amended only with the written consent of the Mortgagor and the ALO. 14. Notice Mortgage shall be following: If to Mortgagor: to the Mortgagor under the Guaranty or this deemed sufficient if given in writing to the Jeffrey S. Cohick and Luann E. Cohick 390 Alexander Spring Road Carlisle, PA 17013 If to Mortgagee, in accordance with Section Il(g) of the Loan Agreement. 15. The provisions of this Mortgage are severable. In the event of the unenforceability or invalidity of anyone or more of the terms, covenants, conditions or provisions of this Mortgage under federal, state or other applicable la~l, such unenforceability or invalidity shall not render any other of the terms, covenants, conditions or provisions hereof unenforceable or invalid. In the event any waiver by Mortgagor hereunder is prohibited by law, including but not limited to the waiver of exemption from execution such waiver shall be deemed to be deleted herefrom. 18 eO(Jd358 PAGE 424 IN WITNESS WHEREOF, the Mortgagor has executed this Mortgage on the day and year first above written. WITNESS { i~ Coo ."~J#~ .ID ey . Cohick "'( rk Vv ~ ~~u \~? Ud uann E. Cohick COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND S8 /'''71/, \"e"'-I 1 96 On this, the 0 / day of -..~ L --, ~..- , 9 , bef9re me the undersigned offiqer, personally appeared Je.f.lr.J}~._c;" (I..chick. and ZIH.,.,.,., C C.:>h,(!::.., and who executed t]?6>..'....",'" , foregc6ing instrument for the purposes therein contained. "",":',-; ~~.:.? f/:;"'<, .-' :.~:'~;"~\!1:""". -t' IN WITNESS WHEREOF, I have hereunto set my hand and of!J~~l" ': ~~,;\ t;_ seal. =1U': zr :.,l~~':~~~;'::- .. '.. ,,". v "IJJ. '- c .<>/%~1:::'~'~~r.;01Ih:~~ "~" . /1 '-f,'t ..,~,;\\,," '~'!-'.:;'''"'';'~V'''' . Notartal~ K.,., F. Byn. NoIaIy PaMc: c............ -c-.o,. PA My Com-'nlon E.apIrN MIwdI ta."" My Commission Expires: Certificate of Residence of the Pennsylvania Department of Commerce: I hereby certify that the precise residence and complete post office address of Capital Region Economic Development Corporation is 214 Senate Avenue, Suite 605, C Hill, Pennsylvania 17011. ,/ / .. i" ! : ( II" 19 BooK1358 PAGE 425 ,. r .. EXHIBIT" A" ALL THAT CERTAIN tract of land situate in South Middleton Township. Cumberland County, Pennsylvania, bounded and described pursuant to a survey by Thomas A, Neff, Registered Surveyor. on May 8. 1967, as follows: " , " I' BEGINNING at a spike in the center of Towru;nip Road No, 469 (also known as Alexander Spring Road), said spike being 200 feet in an easterly direction along the center of said road from line of land now or formerly of Robert M. Frey; thence by land formerly retained by Armeda Shughart and now or formerly of Edgar W, Shughart, et ux, North 13 degrees 20 minutes West 200 feet to a stake; thence by land now or formerly of McCoy Brothers, Inc.. North 76 degrees 40 minutes East 100 feet to a stake; thence by the same, South 13 degreees 20 minutes East 200 feet to a spike in the centcr of Township Road No. 469; thence by the center of said Road. South 76 degrees 40 minutes West 100 feet to the Place of BEGINNING. CONTAINING .459 ACRE, MORE OR LESS UNDER AND SUBJECT, NEVERTHELESS, to all rights of way, easements. restrictions and/or conditions of record. BEING the same premises which became vested in Jeffrey S. and Luann E, Cohick, by virtue of deed dated 5/14/90 and recorded 5/14/90 in Cumberland County Records in deed book 0 34 at Page 31 I , Bood358 PAGE 427 EXHIBIT "C" NOTE Dated: December 27, 1996 , " At: Carlisle, Pennsylvania $187,930.00 FOR VALUE RECEIVED, the undersigned S-Pro Corporation d/b/a Rohrer's Original Stromboli, a corporation organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania (the "Maker"), does hereby irrevocably promise to pay, without defalcation, to the order of THE COMMONWEALTH OF PENNSYLVANIA, as the order of Capital Region Economic Development Corporation, a nonprofit corporation organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania (the "ALO"), at the comptroller's Office, Box 884, Federal Square Station, Harrisburg, Pennsylvania 17108, or at such other place as the Commonwealth may direct, the principal sum of One Hundred Eighty-seven thousand Nine Hundred and Thirty and 00/100 Dollars ($187,930.00) (the "Loan"), or so much thereof as shall be disbursed to the Maker pursuant to the terms of the Loan Agreement between the ALO and the Maker of even date herewith (the "Loan Agreement"), together with interest as provided below, in lawful money of the united States of America, payable in equal monthly installments, a portion of which will be interest on the outstanding principal balance at the rate of five percent (5%) per annum, and a portion of which will be a payment of principal. I I I l ~ j' i~ I I , i The monthly payments will commence on February 1, 1997, and the entire unpaid balance due will be paid on or before November I, 2000. Failure to draw down the full amount of the Loan or pre- payment of the Loan may alter the number of monthly payments required to repay the Loan. i j, ~ . , Interest on the outstanding principal balance will accrue from and including the date of this Note and such interest as accrues through January 31, 1997, shall be due and payable on the first day of February, 1997, in addition to the first monthly installment of principal and interest. The monthly installments shall be applied first to any late charges, then to interest on the unpaid principal, and the balance of said monthly installments shall be applied to principal. In addition, in the event any monthly installment provided for herein shall not be paid when due, the Maker agrees to pay a late ~ } ;', , I. I' I C1 EXHIBIT I -is charge of twelve and one-half percent (12-1/2%) per annum of any such overdue monthly installment to compensate the ALO for damages suffered because of Make~'s failure to make prompt payments. This Note is executed and delivered pursuant to the Loan Agreement, and is subject to all the terms and conditions thereof, including provisions for prepayment and the acceleration of the maturity hereof under certain circumstances. 'I'his Note is entitled to the security provided for in the Loan Agreement. THE MAKER HEREBY COVENANTS AND AGREES AS FOLLOWS: 1. All the terms, covenants, conditions and provisions of the Loan Agreement are incorporated herein by reference and are made a part hereof, and any breach or violation thereof shall constitute a breach or violation of this Note. 2. If the Maker shall fail to pay any sum required to be paid by the Maker under this Note or the Loan Agreement within thirty (30) days after the same becomes due and payable, or if the Maker shall fail to perform any other provision hereof to be performed by the Maker or if there is an event of default under the Loan Agreement, then in any such event, at the option of the ALO, the whole unpaid balance of the principal indebtedness, together with all interest thereon and all other sums due hereunder or required to be paid to the ALO thereunder, shall become due and payable immediately without notice to the Maker. I ~ " 3. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE MAKER. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGI1ENT AGAINST THE MAKER, THE MAKER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF THE MAKER, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE MAKER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. i, I, ! If the Maker is in default under the terms of this Note at the expiration of thirty (30) days after written notice thereof to the Maker (of which an affidavit on behalf of the ALO shall be sufficient evidence), then the Maker hereby irrevocably authorizes and empowers any attorney of any court of record in the Commonwealth of Pennsylvania, or elsewhere, to appear for and to enter and confess judgment against the Maker, at any time or times and as of any term, for the principal sum above mentioned, with or without declaration, with interest and costs of suit, without stay of execution, and with reasonable attorney's fees. ,II '; " , I, !: I I C2 ; ~. , ~.. The Maker agrees that any of its property may be levied upon to collect said judgment and may be sold upon a writ of execution, and hereby waives and releases all laws, now or hereafter in force, relating to exemption, appraisement or stay of execution. The authority hereby granted to confess judgment shall not be exhausted by any exercise thereof, but shall continue from time to time and at all times until the Maker has paid all sums required to be paid by the Maker under this Note, the Loan Agreement and has performed all of the other provisions hereof or thereof to be performed by the Maker. 4. Partial prepayments on the principal indebtedness may be made at any time, without premium, with the prior written consent of the ALO. Prepayments of the entire principal indebtedness may be made at any time, without premium. 5. Prepayments required to be made pursuant to the Loan Agreement shall be applied to the outstanding principal balance. 6. All of the Covenants herein contained shall accrue to the benefit of the successors and assigns, voluntary or involuntary, of the ALO. 7. Demand, grace, presentment for payment, protest, notice of dishonor or nonpayment and notice of the exercise of any option hereunder are hereby waived by the Maker and all guarantors and endorsers hereof. 8. The remedies provided in this Note, and the Loan Agreement or otherwise available to the ALO for the enforcement of the payment of the principal sum together with interest and performance of the covenants, conditions, and agreements, matters and things herein and therein contained are cumulative and concurrent and may be pursued singly or successively or together at the sole discretion of the ALO, and may be exercises from time to time as often as occasion therefor shall occur until the ALO has been paid all sums due in full. 9. The terms and provisions of this Note are severable. In the event of the unenforceability or invalidity of anyone or more of the terms, covenants, conditions or provisions of this Note under federal, state, or other applicable law, such unenforceability or invalidity shall not render any other term, covenant, condition or provision hereunder unenforceable or invalid. In the event any waiver by the Maker hereunder is prohibited by law, including but not limited to the waiver of exemption from execution, such waiver shall be and be deemed to be deleted herefrom. C3 IN WITNESS WHEREOF, intending lo be legally bound hereby, the Maker has caused lhis Nole to be duly executed, the day and year first above written. ATTES'l' : /t~~ / /h../ ,k <'y<-. c;: S-Pro Corporation d/b/a Rohrer's ::;10"1 'a ;:;:. ~ By (1!/PJLC-I<: ~'P~l {/('" ?~ "-/ (CORPOR'\TE SEAL) i , iJ" ;, II " C4 EXHIBIT "II" GUARANTY AND SURETY AGREEMENT WHEREAS, S-Pro Corporation d/b/a Rohrer's Original Stromboli, a corporation organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania and qualified to do business in the Commonwealth of Pennsylvania (the "Borrower") has made application (the "Application") to Capital Region Economic Development Corporation, an industrial development corporation with an address at 214 Senate Avenue, Camp Hill, Pennsylvania (the "ALa") for a loan in the principal amount of $187,930 (the "Loan") from the Small Business First Program; and WHEREAS, the Loan, together with interest thereon and cost and expenses relating thereto, is to be evidenced by a Note from the Borrower to the ALa dated December 27, 1997, (the "Note"), upon which the Borro~ler proposes to defray the cost of a project described in the Application (the "Project") in connection with the business carried on at the Premises; and WHEREAS, the ALa is willing to make the Loan to the Borrower in accordance with the terms of the Approval Letter of the Department, dated October 25, 1996, provided that Jeffrey S. Cohick and Luann E. Cohick (the "Guarantor") guarantees to the ALO and to the Department that in the event of default by the Borrower on the prompt payment of the Note, that the ALO may proceed and collect from the Guarantor to the extent of and limited by the value of collateral securing this guarantee, by virtue of a Mortgage dated December 27, 1996, the balance due on said Note, together with all interest, costs, fees and charges relating thereto, as more specifically set forth in the Note and the Loan Agreement between the Local Sponsor and the Borrower dated December 27, 1996. Receipt of copies of the Note and the Loan Agreement is hereby acknowledged by the Guarantor, and the terms and provisions of the Note and the Loan Agreement (hereinafter collectively referred to as the "Borrower's Agreements") are hereby approved by the Guarantor and incorporated herein by reference thereto. NOW, THEREFORE, in order to induce the ALO to make the Loan to the Borrower and to induce the Department to consent to the making of the Loan by the ALa to the Borrower, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guarantor, for the Guarantor, and the Guarantor's successors and assigns, does hereby agree, as follows: " h, , 'i ': 1. The Guarantor for the Guarantor and the Guarantor's successors and assigns, does hereby absolutely and unconditionally promise and guarantee to the ALa, and the ALa's successors and assigns, that in the event of default by Borrower of the faithful performance of all I, ," i ;. HI EXHIBIT I (I~ amounts and obligations required to be paid or performed by the Borrower pursuant to the Borrower's Agreements when and as the same shall become due and payable or subject to performance, whether at maturity, by acceleration or otherwise according to the terms thereof, that recourse may be made to the Guarantor upon this Guaranty without any requirement that the ALO proceed first against the Borrower, the Project, the Premises or any other collateral securing the Loan, if any, or any other entity having liability with respect thereto, before proceeding to collect such sums or demand such performance from the Guarantor. The extent of the guarantee of the Guarantor is limited to the extent of the value of the collateral hereby pledged to secure this Guaranty by virtue of the Mortgage of Guarantor given this date to the ALO. The liability of Guarantor shall be absolute until all claims of the ALO or against Borrower arising out of all and any of Borrower's Agreements have been paid, settled, discharged and satisfied in full. 2. This Guaranty shall inure to the benefit of the ALO and the ALO' s successors and assigns, and shall be interpreted and construed as a contract of suretyship in accordance with the laws of the Commonwealth of Pennsylvania, and shall be binding upon the Guarantor, and Guarantor's successors and assigns. 3. In addition to all of the sums payable hereunder the Guarantor agrees to pay the reasonable costs and expenses incurred by the ALO and the ALO's successors and assigns, in connection with all action taken to enforce collection under this Guaranty or any of all of the Borrower's Agreements upon default by the Borrower and the Guarantor, whether by legal proceedings or otherwise, including reasonable attorney's fees and court costs. 4. Any notice or consent required or permitted by this Agreement shall be in writing and shall be deemed delivered if deliyered in person or if sent by registered or certified mail, postage pre-paid, return receipt requested, as follows, unless such address is changed by written notice hereunder: (a) If to the Local Sponsor: Capital Region Economic Development Corporation 214 Senate Avenue Suite 60S Camp Hill, PA 17011 Attention: cc: Commonwealth of Pennsylvania Department of Commmunity and Development 433 Forum Building Harrisburg, Pennsylvania 17120 Economic !I2 I', 1, '. Jq :~ \" ~, I; ~ : I \ ' ~. .. i , i I . \ ~ . '); :! ~ ! Attention: Program Adminiutrdlor, Small Duuincus I"irst (b) If to the Guarantor: Jeffrey S. Cohick and Luann E. Cohick 390 Alexander Spring Road Carlisle, PA 17013 Notice shall be effective upon delivery if delivered in person or on the second business day following mailing if mailed. 5. The liability of the Guarantor under this Guaranty is absolute and unconditional, without regard to the liability of any other person, and shall not in any manner be affected by reason of any action taken or not taken by the ALa, which action or inaction is herein consented and agreed to, nor by the partial or complete unenforceability or invalidity of any other guaranty or surety agreement, pledge, assignment or other security for any of the obligations guaranteed hereunder. No delay in making demand on the Guarantor or satisfaction of Guarantor's liability hereunder shall prejudice the ALa' s right to enforce such satisfaction. All of the rights and remedies of the ALa shall be cumulative and any failure of the ALa to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter. 6. This Guaranty shall be a continuing one and shall be binding upon the Guarantor regardless of how long before or after the date hereof any of the obligations guaranteed hereunder were or are incurred. 7. The Guarantor agrees that this Guaranty shall be governed by the substantive law of the Commonwealth of pennsylvania, without regard to principles of conflicts of laws. 8. The Guarantor hereby: (a) Assents to all terms and agreements heretofore or hereafter made by the Borrower with the ALa; (b) Consents that the ALO may (i) Exchange, release or surrender to the Borrower or to any guarantor, pledgor, or grantor any collateral, or waive, release or subordinate any security interest, in whole or in part, now or hereafter held as security for any of the obligations guaranteed hereunder; (ii) Waive or delay the exercise of any of the rights or remedies of the ALO against the Borrower or any other person or entity, including, without limitation, the Guarantor; (iii) Release the Borrower or any other person or entity; H3 (iv) Renew, extend, or modify the terms of any of the obligatiollfJ guaranteed hereunder or any instrument or agreement evidencing the same; and (v) Apply payments by the Borrower, the Guarantor, or any other person or entity, to any of the obligations guaranteed hereunder; and (c) Waives all notices whatsoever with respect to this Guaranty or with respect to the obligations guaranteed hereunder, except as provided in paragraph 2 hereinabove, including, without limitation, notice of: (i) The acceptance hereof by the ALO or the intention to act, or the action, by the ALO, in reliance hereon; (ii) The present existence or future incurring of any of the obligations guaranteed hereunder or any terms or amounts thereof or any change therein; (iii) Any default by the Borrower or any surety, pledgor, grantor of security, or guarantor, and (iv) The obtaining or release of any guaranty or surety agreement (in addition to this Guaranty), pledge, assignment, or other security for any of the obligations guaranteed hereunder. The Guarantor waives notice of presentment, demand, protest and notice of non-payment, protest in relation to any instrument evidencing any of the obligations guaranteed hereunder, and any other demands and notices required by law, except as such waiver may be expressly prohibited by law. 9. This Guaranty is intended to take effect as a document under seal. lD. This Guaranty shall be effective from the date hereof until the earlier to occur of (i) the date 46 months from the date hereof; and (ii) payment in full of all amounts due under the Loan. IN WITNESS WHEREOF, the Guarantors, intending to be legally bound hereby, have hereunto set their hands and seals, by authority of its Board of Director, pursuant to resolution duly adopted, and attested by the undersigned duly authorized officers, this 27th day of December, 1996. ;;~~ t{J h hi'" O~lfl~~ ';/ /7/ ; (c, U';v. (' ii cohick ~'a'{li , Luann E. H4 correct. 1 llndeI-~,ldfld thrll 1<11:," ::\.tt."lm'llt:1 11'_'J"111 <II>,' 111;1<1\. .' " ~, .' f' \.,' r. F- E ~, I vf~!~ify that t.IH' ~n,ltf'l1~I'llt:; III till' !'_'II'(I()IIlq p!r'dr!lllll dIP LnH' ,Ine! subject to the penal t lef'; of IB 1\IC~j ,190,; n.ldL IIlC] to llIH,'..J,J!-n falsification to autlloritics. i, By ~ et>,dent CI'.PIT!'.L REGION ECONOMrC DEVELOPMENT CORPORATION 1\~-br)3 ~,' , I" I>:'