HomeMy WebLinkAbout03-3074COMIvlLrNITY BANKS,
f/k/a COMMUNITY BANKS, N.A.,
Plaintiff
VS.
GORDON K. BANZHOFF, M.D.,
GORDON K. BANZHOFF, JR., and
WILLIAM WITKOSKI, individually and
as partners t/d/b/a BANZHOFF, BANZHOFF
& WITKOSKI, II, a General Partnership,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKETNo. 0'3' 30'7c/ ~_~t,
CIVIL ACTION - EQUITY DOCKET
PRELIMINARY INJUNCTION
PREVIOUSLY ASSIGNED TO: N/A
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 af[er this complaint and notice are
served, by entering a written appearance personally or by attorney anc~ 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 without you and a judgment may be entered against you 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 SHOLrLD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. 117 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 South Bedford Street
Carlisle, PA 17013
(717) 249-3166 or (800) 990-9108
COMMUNITY BANKS,
f/k/a COMMUNITY BANKS, N.A.,
Plaintiff
VS.
GORDON K. BANZHOFF, M.D.,
GORDON K. BANZHOFF, JR., and
WILLIAM WITKOSKI, individually and
as partners t/d/b/a BANZHOFF, BANZHOFF
& WITKOSKI, II, a General Partnership,
Defendants
DOCKET No. 0'90- '~9~
CIVIL ACTION - EQUITY DOCKET
PRELIMINARY INJUNCTION
PREVIOUSLY ASSIGNED TO: N/A
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NOTICIA
Le han demandado a usted a la corte. Si usted quiere defenderse en contra estas demandas
expuestas en las paginas siguientes, usted tien veinte (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia escfita o en persona o por abogado
y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra suya.
Se ha avisado que si usted no se defienda, la corte tomara medidas y puede entrar una orden contra
usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de
demanda. Usted puede perder dinero o propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO
TIENE O CONOCES UN ABOGADO, VAYA EN PERSONA O LLAME POR TELEFONO A
LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRYFA ABA JO PARA AVERIGUAR
DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166 or (800) 990-9108
COMMUNITY BANKS,
fdk/a COMMUNITY BANKS, N.A.,
Plaintiff
VS.
GORDON K. BANZHOFF, M.D.,
GORDON K. BANZHOFF, JR., and
WILLIAM WITKOSKI, individually and
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: DOCKET No. (0 "t) - ~C37- c~
: CIVIL ACTION - EQUITY DOCKET
as partners t/dgo/a BANZHOFF, BANZHOFF : PRELIMINARY INJUNCTION
& WITKOSKI, 1~, a General Partnership, :
Defendants : PREVIOUSLY ASSIGNED TO: N/A
COMPLAINT FOR INJUNCTIVE RELIEF
Plaintiff, Community Banks, formerly known as Community Banks, N.A. (the "Bank"),
by and through its attorneys, Saidis, Shuff, Flower & Lindsay, petitions this Court for the
equitable relief against the Defendant pursuant to Pa.R.C.P. No. 1501 et seq., upon a cause of
action as follows:
1. The name and address of the Plaintiff is Community Banks, formerly known as
Community Banks, N.A., 150 Market Square, P.O. Box 350, Millersburg, Pennsylvania 17061.
2. Defendant Gordon K. Banzhoff, M.D., is an adult individual and general partner
t/d/b/a Banzhoff, Banzhoff & Witkoski, II, a Pennsylvania general partnership, having a last known
address of 37 Tuscany Court, Camp Hill, Cumberland County, Peunsylvania 17011.
3. Defendant Gordon K. Banzhoff, Jr., is an adult individual and general partner t/d/b/a
Banzhoff, Banzhoff & Witkoski, II, a Pennsylvania general partnership, having a last known
address of 245 North 25th Street, Camp Hill, Cumberland County, Pennsylvania 1701 I.
4. Defendant William Witkoski is an adult individual and general partner t/d/b/a
Banzhoff, Banzhoff & Witkoski, II, a Pennsylvania general partn:ership, having a last known
address of 417 Country Club Road, Camp Hill, Cumberland County, Pennsylvania 17011.
5. Defendant Banzhoff, Banzhoff & Witkoski, 1/, is a Pennsylvania general
partnership having an address of 245 North 25th Street, Camp Hi]Il, Cumberland County,
Pennsylvania 17011. Gordon K. Banzhoff, M.D., Gordon K. Baaazhoff, Jr., and William Witkoski,
individually and as general partners t/d/b/a Banzhoff, Banzhoff & Witkoski, Il, a Pennsylvania
general partnership, are referred to collectively as the "Defendant" hereinafter.
6. As evidence of a loan extended by the Bank to the Defendant (the "Loan"), on April
13, 2001, Defendant executed and delivered to the Bank a Promissory Note in the original principal
amount of Six Hundred Thousand and 00/100 Dollars ($600,000.00) (the "Note"). A copy of the
Note is attached hereto as Exhibit "A" and made a part hereof.
7. Contemporaneously with said Note, Defendant executed and delivered to the Bank a
mortgage (the "Mortgage") as security for the Loan, on that tract of land together with the buildings
and improvements erected thereon located in Lehman Township, Luzeme County, Pennsylvania,
known as Country Crest Mobile Home Park (the "Premises"), which Mortgage was recorded in the
office of the Recorder of Deeds of Luzeme County in Book 3001,, Page 67269. A copy of the
Mortgage, including a full and accurate description of the Premises, is attached hereto as Exhibit
"B" and made a part hereof.
8. Contemporaneously with said Note, Defendant executed and delivered to the
Bank an Assignment of Rents and Leases (the "Assignment of Rents") as additional security for
the Loan, which Assignment of Rents was recorded in the office of the Recorder of Deeds of
Luzerne County in Book 3001, Page 67324. A copy of the Assignment of Rents is attached hereto
as Exhibit "C" and made a part hereof.
9. Defendant is in default of Defendant's obligations to make payment to the Bank
as required in the Note, and the Bank has demanded payment in full of all outstanding amounts
as provided in the Note. A copy of PlaintifiPs demand is attached hereto as Exhibit "D" and made
a part hereof.
10.
11.
Said default remains uncured thirty days after w~ritten notice to the Defendant.
The Defendant currently owes a principal balance of $571,489.64 plus interest
through June 27, 2003 in the amount of $31,055.62. Interest cc,ntinues to accrue at the rate of
8.875%, or $140.89 per diem.
12. As a result of the uncured default, the Bank has the right under both the Mortgage
and the Assignment of Rents to collect the rents and to apply them in payment of all sums
payable under the Note.
13. On March 3, 2003, the Bank perfected its right to collect the rents by providing
notice to Defendant and to all tenants of the mortgaged premises, advising that all future rents
should be paid directly to the Bank as authorized under the Mortgage and the Assignment of
Rents. A list of the tenants and affected properties is attached hereto as Exhibit "E" and made a
part hereof.
14. On June 17, 2002, the Bank confessed judgment by complaint, an action at law,
against Defendant Bahnzoff, Bahnzoff & Witkoski, II, a general partnership, in the amount of
$605,682.33, plus additional interest and costs from the date of the complaint, which action was
docket in the Court of Common Pleas of Luzeme County, at number 1458-L-2002.
15. On April 21, 2003, a writ of execution and notice of sheriff's sale set for August
8, 2003 were issued upon the Defendant.
16. According to information previously provided by Defendant, the gross rentals on
the mortgaged property historically amount to approximately $12,000.00 per month. A copy of a
Historical Income and Expense Report prepared by Defendant is attached hereto as Exhibit "F"
and made a part hereof.
17. The Bank has received numerous phone calls from tenants in the Country Crest
Mobile Home Park that they have received letters from the Defimdant directing the tenants to
remit rents to Defendant.
18. On June 11, 2003, the Bank demanded the Defendant halt the practice of
converting rents and that it forward any rents collected to Bank immediately. A copy of the
Bank's demand is attached hereto as Exhibit "G" and made a part hereof.
Several tenants have expressed concern and contusion over the conflicting
19.
instructions.
20.
Defendant.
21.
It is believed, and therefore averred, that tenants continue to pay rent directly to
Defendant has ceased to pay its debts in the ordinary course of business. 13 Pa.
C.S.A. § 1201 (general definitions: insolvent).
22. The Bank believes, and therefore avers, that Defendant cannot pay all of its debts
as they become due.
23. In view of the insolvency of the Defendant, the Bank believes, and therefore
avers, that it will be unable to collect from the Defendant any rents paid directly to Defendant.
24. No adequate remedy at law, whether by mortgage foreclosure, confession of
judgment, award of damages or otherwise, exists.
25. As a result of the above, the Bank will be severely and irreparably harmed unless
the relief requested herein is granted.
WHEREFORE, Plaintiff, Community Banks, formerly known as Community Banks,
N.A., requests the following special relief and injunction against Defendant, Banzhoff, Banzhoff&
Witkoski, II, a Pennsylvania General Partnership, as follows:
a. That the Defendant be permanently enjoined fi.om collecting, or attempting to
collect, any rents/~om the tenants of the Premises knownt as Countxy Crest Mobile Home
Park, Lehman Township, Pennsylvania, who are further described in Exhibit "E";
b. That all tenants of the Premises at Country Crest Mobile Home Park, Lehman
Township, Pennsylvania, be directed to refi'ain from paying any rents to Defendant and
directed instead to pay their rents to Plaintiff, Community Banks, its agents, successors or
assigns, as the Plaintiff may in writing direct; and
c. That the Defendant be enjoined fi'om doing arty act to interfere with Plaintiff's
collection of the rents.
d. That the Defendant be directed to account for and turn over to Plaintiff any rents
paid directly to Defendant or it agent subsequent to March 3, 2003, within twenty days of
service, in accordance with the procedures ofPa. R.C.P. No. 1530;
Date:
Respectfully submitted,
SAIDIS, SH~F, F1
By:
Matthew J. Esheh
Geoffi'ey S. Shuff
f
IER & LINDSAY
nan, Esquire ID #72655
~ Esquire ID #24848
2109 Market Street, C~np Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, Community Banks
C0MMUNrrY BANKS,
f/k/a COMMUNITY BANKS, N.A.,
Plaindff
VS.
IN THE COLrRT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: DOCKET No.
GORDON K. BANZHOFF, M.D., :
GORDON IC BANT~IOFF, JR., and :
WILLIAM W1TKOSKI, individually and : crVIL ACTION
as partners ffd/b/a BANZI-IOFF, BANZHOFF : PREI.IMINARY INHINCTION
& WrlXOSKI, 1I, a Goneral Partnc-mhip, :
Defendants : PREVIOUSLY ASSIGNEI) TO: N/A
EQUITY DOCKET
VERIFICATION
1, Ra;~mond Crrangcr, Vice President, Special Assets, for Commmfity Banks, ~bnn~xty
known as Community Banks. N.A., being authoriztnt to do ~o on b,zhalfof Commm6ty Banks,
hereby verify that the statements made in the/bregoing pleading are true mu:l correct to thc best of
my infonnafi(m, knowledge and belief, I understand that false statenaents herein are made subject
to the penalties of 18 Pa. C.S. Section 4904, relating to u. nswom falsification to authorilies.
D~te:
COMMUNITY BANKS
~ond C~ge~' --
Vlc~ President, Special Assets
PROMISSORY NOTE.
$600,000
April [~ ,2001
Harrisburg, PA
For value received and intending to be legally bound, BANZHOFF,
BANZHOFF & WITKOSKI, II, a general partnership ("Maker"), having a place of
business at 245 N. 25~ Street, Camp Hill, PA 1701]. promises to pay to the
order of COMMUNITY BANKS, N.A., a national bant0~g association (hereinafter
called "Payee"), at 150 Market Square, P. O. Box 350, Millersburg,
Pennsylvania 17061, or such other place as Payee may designate in writing,
the principal sum of Six Hundred Thousand {$600,000) Dollars lawful money
of the United States of America together with interest on the outstanding
principal balance hereof as set forth below.
The proceeds of the loan will be utilized by the Maker to finance
the acquisition of a mobile home part known as Country Crest located in
Lehman Township, Luzerne County, Pennsylvania, more fully described in a
certain Mortgage by and between Mortgagor and Payee as Mortgagee, which
shall be recorded in the Office of the Recorder of Deeds of Luzeme County. The
loan is evidenced by this Note which is executed pursuant to the terms of a
commitment letter of the Payee to the Maker dated March 19, 2001, the terms
and conditions of which are incorporated herein by reference.
The Note shall be payable as follows:
(a) Consecutive monthly installments (each a "Scheduled Monthly
Installment") in the initial amount of Five Thousand ~rhree Hundred Ninety
Seven Dollars and Sixty-Nine Cents ($5,397.69) whic~h shall be applied fn-st to
interest accrued on the outstanding principal balance hereof at the Applicable
Rate of Interest, as hereunder defined, and then to the reduction of the
principal balance thereof. The first Scheduled Monthly Interest Installment
shall be due and payable on the date which is thirty (30) days after the date
hereof. Scheduled Monthly Installments shall continue to be due and payable
on the same day of each month thereafter until that date which is sixty (60)
months after the date of this Note (the "Conversion Date").
(b} On the Conversion Date, the then principal balance of this Note
shall bear interest at the Applicable Rate of Interes'L then in effect. From the
Conversion Date to and including the Maturity Dat,e (as hereinafter defined) the
aggregate principal balance together with interest at the Applicable Rate shall
be due and payable in consecutive monthly installments (a "Scheduled Monthly
Installment"). Scheduled Monthly Installments shall be applied first to interest
accrued on the outstanding principal balance herec,f at the Applicable Rate of
Interest then in effect and then to the reduction of the principal balance hereof.
The first Scheduled Monthly Installment shall be due and payable on the date
which is thirty (30) days after the Conversion Date. Scheduled Monthly
Installments may be adjusted to reflect any interest rate changes in the
Applicable Rate of Interest to maintain amortization of the loan repayment
within a fifteen (15) year amortization period. Scheduled Monthly
Installments shall continue to be due and payable on the same day of each
month thereafter until April ~'! , 2021 (the "Maturity Date"). On the Maturity
Date a final installment shall be due and payable which shall include all
unpaid amounts of the principal balance and interest accrued and unpaid
thereon and any and all other payments or amounts due under this Note, or
any other Loan Document as hereinbefore defined herein.
The Applicable Rate of Interest shall be fixed at Eight and Eight
Hundred Seventy Five Thousandths (8.875%) percent per annum for a period of
sixty (60) months from the date of this Note. Thereaz[ter, the Applicable Rate of
Interest shall either be (i) in the sole discretion of Payee, a fixed rate of interest;
or (ii) in the event Maker decfines the fixed rate (ff any) available on the
Conversion Date or ff Payee declines to offer Maker a fixed rate, that rate of
interest which is at all times equal to the Commercial Prime Rate of
Community Banks, N.A. as hereinafter defined in effc~ct at that time and
thereafter in effect from time to time plus One (1%) P,srcent. The Applicable
Rate of Interest shall change on the day On which an:? change in said
Community Banks, N.A.'s Commercial Prime Rate shall become effective.
When the Commercial Prime Rate of Community Banks, N.A. changes on a day
other than the first day of a calendar month, interest for the month in which
2
such change or changes are made shall be calculm:ed on a per diem basis with
the various Prime Rates in effect for that month, haterest hereunder shall be
calculated on the basis of a 360 day year.
The te~m "Commercial Prime Rate of Community Banks, N.A." as
used herein shall mean the rate which the Payee establishes as "the
Commercial Prime Rate of Community Banks, N.A.' whether or not published.
The utilization of "Prime Rate" herein is solely for the purpose of defining the
rate of interest applicable hereunder. Its utilization shall in no way preclude or
limit the Payee from lending to certain borrowers, fl:om time to time, at a rate of
interest less than the "Prime Rate" as defmed hereunder.
If any installment of principal and/or interest under this Note or
any other sum due under any other Loan Document (as hereinafter defined) is
not paid within fifteen (15) days after it is due on iits due date or if the Maker
fails to pay the entire principal balance, together with interest accrued thereon,
and all other sums due under this Note or any other Loan Document on the
Maturity Date as defined herein, interest shall be due on such overdue amount
(including overdue interest) from its due date to the: date on which it is paid at
the rate of two percent (2%) per annum above the Applicable Rate but not more
than the highest rate permitted by law (the "Default Rate"). Such interest at
the Default Rate shall (in addition to all other interest) be due on each payment
date and on the date on which the overdue amount is paid. Interest at the
Default Rate shall be due on all interest from the date on which it is due until
the date on which it is paid and any interest which is not paid at maturity
(whether stated or accelerated) shall be added to the principal balance of this
Note on the Maturity Date.
Any prepayment of principal shall be applied against the
installment of principal (by date) last due and payable. No prepayment shall
postpone or interrupt payment of future instaliments of principal and interest
which shall continue to be due and payable until payment herein hn full.
In the event any of the aforesaid payments of interest and/or
principal remain unpaid fifteen (15) days after such payments are due, Maker
shall pay a delinquency charge of five percent (5%) of' the amount so overdue to
3
cover the extra expense involved in handling delinquent payments. Provisions
for such delinquency charge shall not be construed to permit Maker to make
any payment after its due date, obligate Payee to accept any overdue
installment, or affect Payee's rights and remedies upon default.
Maker shall not be obligated to pay and Payee shall not collect
interest at a rate in excess of the maximum perndtted by law or the maximum
that will not subject Payee to any civil or criminal penalties. If, because of the
acceleration of maturity, the payment of interest in advance or any other
reason, Maker is required, under the provisions of any Loan Document, to pay
interest at a rate in excess of such maximum rate, the rate of interest under
such provisions shall immediately and automatically be reduced to such
maxLmum rate, and any payment made in excess of such maximum rate,
together with interest thereon at the rate provided herein from the date of such
payment, shall be immediately and automatically applied to the reduction of
the unpaid principal balance of this Note as of the date on which such excess
payment was made. If the amount to be so applied to reduction of the unpaid
principal balance exceeds the unpaid principal ba/[ance, the amount of such
excess shall be refunded by Payee to Maker.
This Note is secured by and entitled to all of the benefits of (i) a
Mortgage (the "Mortgage") of even date herewith from Maker as Mortgagor to
Payee as Mortgagee of Maker's interest in certain real property described
therein situate in Lehman Township, Luzerne County, Pennsylvania, together
with the additional collateral described therein (the "Mortgaged Premises"); (ii)
the Guaranty and Surety Agreement of Gordon K. ]3anzhoff, M.D., Gordon K.
Banzhoff, dr. and William Witkoski (the "Guarantors"); (j.ii) an Assignment of
Rents and Leases (the "Assignment of Leases") affecting the Mortgaged
Premises; and (iv) all additional security set forth i~n the Commitment Letter,
this Note, and the documents described in (i) - (iv) above, and any other
documents executed by Maker or any Guarantor ~md delivered to Payee in
connection with this Loan are collectively referred[ to herein as the "Loan
Documents"). Reference is made to the Loan Documents for a description of
the properties and collateral mortgaged, secured an:d pledged as security for
this Note, the nature and extent thereof, the rights of the holder of this Note
and the Maker and the Guarantors in respect of such security and otherwise,
and the terms upon which this Note is issued. Ail of the terms, covenants,
agreements, conditions, warranties and provisions contained in the Loan
Documents are hereby incorporated into this Note with the same force and
effect as ff they were fully set forth herein. Ma$:er covenants and agrees to
comply with and perform all such provisions, or cause them to be compiled
with and performed, strictly in accordance with their terms.
For purposes of this Note "Collateral Security" means any and all
goods, chattels, inventory, equipment, securities, deposits, accounts receivable,
notes, documents, instruments, money, safe deposit box contents, and other
property of Maker of whatever kind or nature which may now or hereafter be
deposited with or in the possession or control of Payee. Maker hereby pledges
the Collateral Security as security for the payment of this Note and agrees that,
in the Event of a Default under this Note, Payee may set off any of the
Collateral Security against any amount due here. under or apply any other
Collateral Security or other proceeds of the Collateral Security to any amount
due under this Note or under any other Loan Document.
"Default" under this Note shall mean any Event of Default (as
hereinafter defined) and any event which with the passage of time or the giving
of notice, or both, would become an Event of Default.
Upon default (as hereinbefore defined) Payee may collect any late
charges, interest on overdue amounts at the Default Rate and any damages or
loss to Payee by reason of the default (including consequential damages) and
may set off the Collateral Security against or apply- it to any sum due under
this Note or any other Loan Document.
Each of the following events shall constitute an "Event of Default"
under this Note, subject to any applicable notice and grace period as set forth
herein or therein: (a) Maker fails to make any payment of principal or interest
or any other sum required to be made under this Note or any other Loan
Document, and such payment is not made within fifteen (15) days after its due
date; (b) there occurs an Event of Default as defined in any other Loan
Document; (c) any Maker or Guarantor becomes insolvent or makes an
assignment for the benefit of creditors; (d) (i) a Conrt shall enter a decree or
order for relief in respect of any Maker or Guarantor in an involuntary case
under the Federal Bankruptcy Code or any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of any
Maker or Guarantor or for any of the property of any Maker. ordering the
winding up or liquidation of his/her/its/their affairs, and such decree or order
shall remain unstayed and in effect for a period of sixty (60) days; or (ii) any
Maker or Guarantor shall commence an action ir.L bankruptcy, insolvency, or
under any other similar law now or hereinafter in effect, or shall consent to the
entry of an order for relief in an involuntary case tinder any such law, or shall
consent to the appointment of or taking possession by a receiver, liquidator.
assignee, trustee, custodian, sequestrator (or similar official) of any Maker or
Guarantor or for any part of his/her/its/their property; (e) failure by the
Maker to observe or perform any other covenant, agreement, condition or term
of this Note not otherwise specillcally enumerated as an Event of Default which
remains uncured thirty (30) days after written notic, e thereof by Payee provided
that ff such failure cannot be reasonably cured within such thirty (30) day
period as aforesaid and ff Maker has diligently attempted to cure the same and
thereafter continues diligently to cure the same, then the cure period provided
for herein may be extended up to a date set by Payee; (1) breach by Maker of
any other obligation to the Payee subject to any applicable notice and/or grace
period; (g) any representation or warranty in any fnctancial or other statements,
schedule, certificate or other document of any Maker or Guarantor delivered to
Payee by or on behalf of any Maker or Guarantor shall prove to be false,
misleading, or incomplete in any material respect when made; (h) a material
adverse change occurs in the financial condition of any Maker or Guarantor; (i)
any Maker or Guarantor assigns or otherwise transfers or attempts to assign or
transfer any interest in the Mortgaged Premises (,except as~provided in the
Mortgages); or (j) Maker or any Guarantor defaults under the terms of any
other obligation of Maker or Guarantor to Payee. ~ 1,,- q. ,.~ ~y .~ .-.., o,~ a ~
At any time after occurrence of an Event of Default, Payee may, at
Payee's option and without notice or demand, do any one or more of the
following:
6
(a) without declaring the unpaid principal balance to be due,
collect all installments of principal and/or interest (at the then applicable
rate provided above to the date on which a default occurs and, thereafter,
at the Default Rate) and all other sums due under this Note or any other
Loan Document from time to time, by any action provided in this Note or
any other Loan Document or provided at law or in equity;
(b) declare the entire unpaid principal balance of this Note,
together with interest accrued thereon (at the then applicable rate
provided above to the date on which a default occurs and, thereafter, at
the Default Rate) and all other sums due from Maker under this Note or
any other Loan Document to be due and payable immediately: and/or
(c) exercise any other right or remedy as may be provided in this
Note or any other Loan Document or provided[ at law or in equity.
Payment of all or any part of the Indebtedness (as defined below)
may be recovered at any time by any one or more of the foregoing remedies.
Whether or not the entire unpaid principal balance is declared to
be due, the interest rate on the unpaid principal balance shall be the Default
Rate from the date on which a default occurs until the date on which all
defaults are cured or the entire unpaid principal balance and all other sums
due under this Note or any other Loan Document (collectively, the
"Indebtedness") are actually received by Payee. Upon the entry of any
judgment after default, interest shall continue to accrue at the Default Rate on
the judgment amount from the date of judgment until actual receipt of the
entire Indebtedness by Payee, including any period after a Sheriffs Sale of the
Mortgaged Premises.
In any action under this Note or any other Loan Document, Payee
may recover all costs of suit and other expenses in cormection with the action,
including the cost of any title search and reasonable attorneys fees, paid or
incurred by Payee.
The rights and remedies provided to Payee in this Note and the
other Loan Documents, including all warrants of attorney, (a) are not exclusive
and are in addition to any other rights and remedies Payee may have at law or
in equity, (b) shall be cumulative and concurrent, (c) may be pursued singly,
successively or together against Maker, any of thi.~ Mortgaged Premises, any of
the Collateral Security and/or any other security at the commercially
reasonable discretion of Payee, and (d) may be exercised as often as occasion
therefor shall arise. The failure to exercise or d[elay ha exercising any such
right or remedy shall not be construed as a waiver or release thereof.
Maker hereby waives and releases Payee and its attorneys from all
errors, defects and imperfections (of a procedural nature) in any proceeding
instituted or maintained by Payee under this Note or any other Loan
Document. Maker hereby, to the extent not prohibited by law, waives all
benefit of any and all present and future statutes of limitations and
moratorium laws and any and all present and future laws which (a) exempt all
or any part of the Mortgaged Premises, the Collateral Security or any other real
or personal property or any part of the proceeds of any sale of any such
property from attachment, levy, foreclosure or sale under execution, (b) provide
for any stay of execution, marshaling of assets, exemption from civil process,
redemption, extension of time for payment, or valuation or appraisement of all
or any part of the Mortgaged Premises, the Collateral Security or any other real
or personal property, or (c) confiict with any provision of this Note or any other
Loan Document. Maker agrees that the Mortgaged Premises, the Collateral
Security and any other real or personal property may be sold to satisfy any
judgment entered under this Note or any other Loam Document in whole or in
part and in any order as may be des/red by Payee.
Except as otherwise provided herein, Maker and all endorsers,
sureties and guarantors, jointly and severally: (a) waive presentment for
payment, demand, notice of demand, notice of nonpayment or dishonor,
protest and notice of protest of this Note, and all other notices (not expressly
prov/ded for in this Note) in connection with the delivery, acceptance,
performance, default, or enforcement of the payment of this Note; (b) agree that
the liability of each of them shall be unconditional without regard to the
liability of any other party and shall not be affected in any manner by any
indulgence, extension of time, renewal, waiver or modification granted or
consented to by Payee at any t/me; (c) consent tc, any and all indulgences,
extensions of time, renewals, waivers or modifications granted or consented to
by Payee at any time; (d) consent to the release of all or any part of or interest
in the Mortgaged Premises or the Collateral Security or any other collateral
described in any Loan Document, with or without substitution; and {e) agree
that additional makers, endorsers, guarantors or sureties may become parties
to this Note or any other Loan Document without notice to them or affecting
their liability under this Note or any other Loan Document.
Payee shall not be deemed, by any act: of omission or commission,
to have waived any of its rights or remedies hereurtder unless such waiver is in
writing and signed by Payee. Such a written waiver signed by Payee shall
waive Payee's rights and remedies only to the extent specifically stated in such
written waiver. A waiver as to one or more particular events or defaults shall
not be construed as continuing or as a bar to or waiver of any right or remedy
as to another or subsequent event or default.
Maker shall pay the cost of any revenue, tax or other stamps now
or hereafter required by law to be affixed to this Note. Maker shall pay any and
all taxes imposed upon Payee by reason of this Note or the ownership or
possession of this Note, including personal propen~ taxes, but excluding any
income taxes imposed by reason of interest received by Payee under this Note,
and shall reimburse Payee for the amount any such taxes paid by Payee. If
Maker fails or refuses or is not legally permitted to make such payment or
reimbursement, Payee, may, at its option, declare the Indebtedness to be
mediately due and payable, whereupon Maker shall immediately pay such
principal and other sums to Payee.
If Maker or any Guarantor shall, without in each instance the prior
written consent of Payee, sell, transfer, convey, mortgage, encumber, lease or
otherwise alienate all of any part of the Mortgaged Premises or any interest
therein (except as permitted by the Mortgage or Assigrn-nent of Leases), whether
voluntarily or by operation of law, then Payee may, at its sole option, declare
the Indebtedness to be immediately due and payable, whereupon all such
principal and other sums shall be immediately due and payable.
Notwithstanding anything to the contrary, the sale or transfer of William
Witkoski's partnership interest in Maker shall not ]be deemed to constitute a
transfer of the Mortgaged Premises.
Payee shall not be construed for any purpose to be a partner, joint
venturer or associate of Maker or of any lessee, operator, concessionaire or
licensee of Maker or of any of the Mortgaged Premises by reason of this Note or
any of the Loan Documents or of any action by Payee pursuant to any
provision of this Note or any other Loan Document:.
Time is of the essence of each and every provision of this Note.
The words "Payee" and "Maker" shall include the respective heirs,
distributees, personal representatives, successors and assigns of Payee and
Maker, respectively. The provisions of this Note shall bind and inure to the
benefit of Payee and Maker and their respective heirs, distributees, personal
representatives, successors and assigns provided that the provisions of this
paragraph are subject to all the other provisions of this Note and the other
Loan Documents, including the above due-on-sale clause.
If there is more than one Maker, the liability of each shall be joint
and several.
As to all pronouns and other terms in this Note, the singular shall
include the plural and vice versa and any gender shall include the other two
genders, as the context may require.
The phrase "any of the Mortgaged Prernises" shall mean "all or any
part of any of the Mortgaged Premises or any interest therein." The phrase
"any of the Collateral Security" shah mean "all or any part of the Collateral
Security or any interest therein."
This Note may be modified, amended, discharged or waived only by
an agreement in writing signed by the party against whom enforcement of any
such modification, amendment, discharge or waiver is sought.
This Note shah be governed by and construed according to the
laws of the Commonwealth of Pennsylvania.
l0
All notices, requests, demands and other communications given
pursuant to any provision of this Note shall be given in writing by U.S. certified
or registered marl with return receipt requested and postage prepaid, or by any
24-hour courier service with proof of delivery, addressed to the party for which
it is intended at the address of that party fn'st stated above or such other
address of which that party shall have given notice in the manner provided
herein. Any such marl notice shall be deemed to have been given when the
notice is deposited in the marl. Any such courier notice shall be deemed to
have been given on the following business day.
UPON AN EVENT OF DEFAULT BY MAKER, MAKER HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWEI~IS ANY AT'I'ORNEY OR
A'I'TORNEYS OR THE PROTHONOTARY OR CLERK OF ANY COURT OF
RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR IN ANY OTHER
JURISDICTION WHICH PERMITS THE ENTRY OF JUDGMENT BY
CONFESSION, UPON DEFAULT AS HEREIN DEFINED, TO APPEAR FOR ANY
OR ALL MAKER IN SUCH COURT IN AN APPROPRIATE ACTION THERE
BROUGHT OR TO BE BROUGHT AGAINST MAKER AT THE SUIT OF PAYEE
ON THIS NOTE, WITH OR WITHOUT COMPLAINT OR DECLARATION FILED,
AS OF ANY TERM OR TIME, AND THEREIN TO CONFESS OR ENTER
JUDGMENT AGAINST MAKER FOR ALL SUMS DUE BY MAKER TO PAYEE
UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS {WITH OR
WITHOUT ACCELERATION OF MATURITY), INCLUDING ALL COSTS AND
REASONABLE ATYORNEYS' FEES. FOR SO DOING THIS NOTE OR A COPY
HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE
AUTHORITY TO CONFESS JUDGMENT GRANTED HEREIN SHALL NOT BE
EXHAUSTED BY ANY EXERCISE THEREOF BUT MAY BE EXERCISED FROM
TIME TO TIME AND AT ANY TIME AS OF ANY TERIVl AND FOR ANY AMOUNT
AUTHORIZED HEREIN. MAKER EXPRESSLY AUTHORIZES THE ENTRY OF
REPEATED JUDGMENTS UNDER THIS PARAGRAPH NOTWITHSTANDING ANY
PRIOR ENTRY OF JUDGMENT IN THE SAME OR ANY OTHER COURT FOR
THE SAME OBLIGATION OR ANY PART THEREOF.
MAKER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY
COUNSEL IN CONNECTION WITH THE EXECU'rION AND DELIVERY OF THIS
NOTE; AND MAKER WAIVES ANY RIGHT TO NO'I~[CE OR A HEARING WHICH
IT MIGHT OTHERWISE HAVE BEFORE ENTRY OF JUDGMENT.
IN WITNESS WHEREOF. Maker has caused this Note to be
executed the [q~ day of April, 2001.
Wimess ~
Wit, s
BANZHOFF, BANZHOFF &
Gordo~ K. Ban~h~.,~M.D.~/Par~ner
G~rdon K. Banzl~ff, ~r., P~artner
William Witkoski, Partner
MORTGAGE
Securing a Term Loan in the
Principal Amount of
$600,000.00
THIS MORTGAGE (the "Mortgage") made this [~--- day of April, 2001
by and between BANZHOFF, BANZHOFF & WITKOSi~I, II, a Pennsylvania general
partnership, having an address of 245 N. 25TM Street, Camp Hill, PA 17011
(hereinafter referred to as the "Mortgagor") and COMMUNITY BANKS, N.A., a
national banking association having offices located at 150 Market Square, P. O. Box
350, Millersburg, PA 17061 (hereinafter referred to as "Mortgagee").
BACKGROUND
A. Mortgagor is the owner in fee simple of the real property hereby
mortgaged, which real property is more fully described on Exhibit "A" attached hereto
and made a part hereof.
B. Mortgagor has executed and delivered to Mortgagee a Promissory
Note of even date herewith, each of which is made payable to Mortgagee, in the
principal amount of Six Hundred Thousand Dollars ($600,000) (the "Note"), with
interest thereon payable at the rate and times, in the manner and according to the
terms and conditions specified therein, all of which are incorporated herein by
reference. The Note evidences the Mortgagor's obligation to repay among other
things tl~e principal amount to be advanced by the Mortgagee to the Mortgagor to
acquire a mobile home part located in Lehman Township, Luzerne County,
Permsylvania, more fully described on Exhibit "A" (the "Mortgaged Premises") and
.to refinance existing indebtedness of the Mortgagor and to provide capital for an
investment in the Mortgaged Premises described on Exhibit "A".
C. As security for the obligations of Mortgagor as Maker under the Note
and as security for all other sums provided for in this Mortgage and as security for
the repayment of all sums advanced or to be advanced under the Note, Mortgagee has
required Mortgagor, and Mortgagor has agreed, to execul;e and deliver this Mortgage.
The Note, this Mortgage, and any other documents executed by Mortgagor and/or
any guarantor and delivered to Mortgagee in connection 'with the Note or given as
security for the Note or the obligations of Mortgagor (including any restructuring,
refinancing, extension or modification thereof) are sometimes referred to herein
collectively as the "Loan Documents" or individually as a "Loan Doc~,ment." The
terms and conditions of the Loan Documents are hereby incorporated into this
Mortgage by reference.
CONVEYANCE
NOW, THEREFORE, Mortgagor, in consideration of the premises
recited above and the indebtedness evidenced by the Note and the other Loan
Documents, and for better securing payment of the same, with interest and in
accordance with their respective terms and conditions, 'together with all other sums
recoverable by Mortgagee under the terms of the Loan Documents and for the
performance of the agreements and covenants, contained herein and therein, does
hereby grant, assign, and convey unto Mortgagee, its successors and assigns, all of the
following real and personal property and property interests (together, the real and
personal property and the property interests described in subparagraphs (1) through
(6) below, inclusive, shall constitute the "Mortgaged Premises"):
1. All of Mortgagor's right, title and interest in and to the real property
depicted as Country Crest Mobile Home Park, Lehman Township, Luzerne County,
Pennsylvania, recorded in the Office of the Recorder of Deeds of Luzerne County,
Pennsylvania, in Deed Book ? ~l, Page ~ ~and more particularly described on
Exhibit "A" attached hereto and made a part hereof (the "Real Estate");
2. All buildings and improvements existing or hereafter erected on the
Real Estate (the "Improvements");
3. All f~xtures, machinery, equipment, supplies, tools, appliances,
accessories and other articles of property of any nature whatsoever, whether real
estate or not, owned by Mortgagor, now or at any time hereafter installed in,
attached to or situated in or upon, or used or intended to be used in connection with
or in the operation or maintenance of the Real Estate or the Improvements, or in the
operation of any buildings, improvements, plant or business now or hereafter situate
thereon, which shall include, but not be limited to, all lighting, heating, ventilating,
air conditioning, sprinkling and plumbing £~xtures and systems, irrigating, water and
power systems and fmtures, engines and machinery, boilers, ranges, furnaces, oil
burners or units thereof, elevators and motors, refrigeration plants or units,
communication systems, security systems, dynamos, transformers, generators,
electrical equipment, storm and screen windows, doors, decorations, awnings, shades,
signs, and trees, shrubbery and other plantings;
4. All accounts, contract rights, chattel paper, general intangibles and
all personal property now or hereafter owned by Mortgagor and located on the Real
Estate, together with all accessions, replacements and substitutions thereto or
therefor and the proceeds and products thereof;
~EC ~,oo~ :~001 ?~e ,~,7270
2
5. Ail proceeds from the sale, transfer, lease or other disposition of any
of the foregoing, whether voluntary or involuntary (sale, transfers and leases are,
nevertheless, subject to the provisions of paragraphs 8 and 13 hereofl, and all
proceeds of the conversion of any of the foregoing into cash or liquidated claims,
including without limitation proceeds of insurance and condemnation awards, and all
parts, fittings, accessories, accessions, substitutions and replacements therefor and
thereof; and
6. Any and all tenements, hereditaments and appurtenances belonging
to the Real Estate or any part thereof, hereby mortgaged or intended so to be, or in
any way appertaining thereto and all rents, issues, income, and profits arising
therefrom; all streets, alleys, passages, ways, watercourses, vaults; all other rights,
liberties, easements, covenants and privileges of whatsoever kind or character; the
reversions and remainders; and all the estate, right, title, interest, property,
possession, claim and demand whatsoever, as well at law as in equity, of Mortgagor,
in and to all of the foregoing or any or every part thereof, and all the estate, right,
title and interest of Mortgagor in and to each and every existing and future lease with
respect to all or any portion'of the Real Estate, including, without limitation, all
rents, issues, income, and profits arising therefrom.
TO HAVE AND TO HOLD the Mortgaged Premises hereby granted and
conveyed or mentioned and intended so to be, with the appurtenances, unto
Mortgagee, forever.
AS INDEPENDENT AND SEPARATE SECURITY for the payment of
the indebtedness and performance of the obligations, covenants and agreements
secured hereby, Mortgagor hereby (i) grants to Mortgagee a security interest under
the Pennsylvania Uniform Commercial Code in, among other things, all fnctures,
furnishings, furniture, floor coverings, equipment, trade f~xtures, appliances,
machinery, supplies, tools, accessories, operating inventory accounts, contract rights,
chattel paper, general intangibles and all other personal property now or hereafter
owned by Mortgagor and now or hereafter located on the Real Estate, and such other
items as are stated and more particularly described in the granting clauses set forth
above, and the other permitted encumbrances, (ii) assigns to Mortgagee all of
Mortgagor's right, title and interest in and to all leases, whether now in existence or
hereafter created, together with all rents, deposits and proceeds due and to become
due thereunder and, upon an Event of Default as hereinafter provided, confers upon
Mortgagee the power to enter upon and take possession of the Mortgaged Premises
and to rent the same, either in its own name or in the name of Mortgagor, and to
receive the rents, issues and profits therefrom, and to apply the same to the payment
of interest, principal, taxes, insurance premiums, repairs, alterations, improvements
and other expenses in such order of priority as Mortgagee shall determine, but such
3
collection of rents, issues and profits shall not operate as an affirmance of any tenant,
lease or sublease, in the event that title to all or any part of the Mortgaged Premises
should be acquired by Mortgagee or any other purchaser at a foreclosure sale, except
as expressly provided herein, and (iii) assigns to Mortgagee, as additional collaterai
security for all amounts secured hereby, all of Mortgagor's right, title and interest in
and to all insurance policies, all proceeds of insurance policies, all unearned
premiums paid by Mortgagor, accrued or to accrue under all insurance policies,
irrespective of who maintains such insurance, including but not limited to Mortgagor
or any tenant at the Mortgaged Premises, and all proceeds arising from
condemnation proceedings applicable to all or any part of the Mortgaged Premises.
ADDITIONAL PROVISIONS
Mortgagor represents, covenants, warrants, and agrees to and with
Mortgagee, as follows:
1. Title; Power; No Violation. Mortgagor represents that it has good
and marketable fee title to, the Real Estate and the buildings, structures,
improvements, £Lxtures, machinery, tenements and other property and property
interests which constitute the Mortgaged Premises, and. to all rents, issues and
profits therefrom, and has the right, fuil power and law,Jul authority to grant, convey
and assign the same to Mortgagee in the manner and form set forth herein and in the
other Loan Documents. The Mortgaged Premises are free and clear of all liens,
encumbrances and other charges whatsoever except such easements and
encumbrances as have been accepted by the Bank ("Per~nitted Liens"). Mortgagee, its
successors and assigns will quietly enjoy and possess the Mortgaged Premises to the
extent provided in this Mortgage. Mortgagor's grant and conveyance of Mortgagor's
title and interest in and to the Mortgaged Premises to i~[ortgagee pursuant to this
Mortgage do not and will not violate any covenant or agreement by which Mortgagor
is bound.
2. Comoliance; Env~ronmentai Matters.
2.1. Mortgagor has not treated, stored, recycled, disposed of or
discharged any hazardous, toxic or polluting substances on or into the Mortgaged
Premises in any manner which may require remediation under any applicable law or
regulation and Mortgagor, has no knowledge of any other person or entity, including,
without limitation, any previous owner or operator of the Mortgaged Premises,
having treated, stored, recycled, disposed of or discharged any hazardous, toxic or
polluting substances on or into the Mortgaged Premises in such manner.
4
2.2. Mortgagor, having made inquiry and investigation, has no
knowledge of any violation of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), tlhe Superfund Amendments
and Reauthorization Act of 1986 ("SARA"), the Resource Conservation and Recovery
Act of 1976 ("RCRA"), as amended by the Hazardous and Solid Waste Amendments of
1984, the Federal Water Pollution Control Act ("Clean Water Act"), the Toxic
Substances Control Act (TSCA), the Clean Air Act ("CA~"), the Pennsylvania
Hazardous Sites Cleanup Act of 1988 ("HSCA"), the Pennsylvania Clean Streams Law
("CSL"), the Pennsylvania Solid Waste Management Act of 1980 ("SWMA"), the
Pennsylvania Storage Tank and Spill Prevention Act of 1989 ("Act 32") or any rule or
regulation promulgated pursuant to any of the foregoing statutes or any other
applicable environmental law, statute, rule, regulation or ordinance (all of the
foregoing are hereinafter sometimes collectively referred to as the "Environmental
Laws and Regulations") by Mortgagor, any affiliate, agent or independent contractor
of Mortgugor or any other person or entity, including a previous owner or operator of
the Mortgaged Premises, with respect to the Mortgaged[ Premises, and no such
environmental liability exists on or in connection with the Mortgaged Premises.
2.3. Mortgagor has filed all applications, notifications and plans
required by law and has obtained all permits and authorizations required by law
which are necessary to carry on its business(es), and to the best of Mortgagor's
knowledge, information and belief, the Mortgaged Prernises is in compliance with all
applicable Environmental Laws and Regulations.
2.4. Mortgagor has received no notice and is unaware that the
Mortgaged Premises have been designated as a site on the National Priorities List or
similar state list, or have been or are the subject of any removal or response action,
private or governmental, under the Comprehensive Environmental Response,
Compensation or Liability Act, as amended, or the Pennsylvania Hazardous Sites
Cleanup Act or any similar state or federal law, and thai; no requests have been
received to provide information or participate in any study, remedial design or
response action under such laws.
2.5. Mortgagor, has no knowledge that any notification has been
fried with any state, federal or local agency with regard to the discharge of hazardous,
toxic, or polluting substances on or into the Mortgaged Premises which would result
in liability for clean-up under any Environmental Laws ~md Regulations, or that any
notice has been received from any governmental or quasi-goverumental entity that
the Mortgaged Premises is subject to investigation, enforcement or clean-up liabilities
under any such Environmental Laws and Regulations. Mortgagor shall immediately
notify Mortgagee of any such notice filed or reeeived by Mortgagor and shall promptly
provide Mortgagee with a copy of such notice.
~EC Book 3:001 Po-.e 67273:
5
2.6. Mortgagor has not received any claims, demands, notices of
intent to file a claim, demand or lawsuit, notices of deficiencies, or requests for
information relating to actual or potential actions brought by third parties for
violations of any Environmental Laws and Regulations for which Mortgagor may be
liable.
2.7. Mortgagor shall duly observe, conform, obey and comply
with, and shall cause its employees, agents and contracl;ors to duly observe, conform,
obey and comply with ail requirements of any federal, state or local governmental or
quasi-governmental authority affecting all or any part ef the Mortgaged Premises or
the occupancy thereof or the business or operations now or hereafter conducted
thereon, and will ensure that the present and currently contemplated future use of
the Mortgaged Premises will be in compliance with all applicable environmental
protection and land use regulations or laws including, without limitation, CERCLA,
RCRA, the Clean Water Act, TSCA, CAA, HSCA, CSL, SWMA, Act 32 and any other
federal, state or local environmental law, regulation or ordinance. Notwithstanding
the foregoing, if Mortgagor in good faith and by appropriate action, protest or
proceeding shall contest the validity of any such requirement, law, rule or regulation,
then Mortgagor shall not be required to comply with any such requirement, law, rule
or regulation so long as the contest (i) operates to prevent enforcement thereof or the
potential sale, forfeiture or loss of the Mortgaged Premises; (ii) does not interfere
with the use, occupancy, operations of, or construction of Improvements on, the
Mortgaged Premises, the rent payable by any tenants of' the Mortgaged Premises and
the timely payment of all sums due hereunder; and (iii) :is maintained and prosecuted
with diligence and shall not have been terminated or discontinued adversely to
Mortgagor.
2.8. Mortgagor shall exercise due care with respect to any
hazardous, toxic or otherwise polluting substances which may be treated, stored,
recycled, discharged, disposed of or otherwise placed on the Mortgaged Premises and
Mortgagor will take reasonable precautions against the ibreseeable acts or omissions
of third parties with regard to the treatment, storage, recycling, discharge, disposal or
placement of hazardous substances on the Premises and the environmental
consequences that could foreseeably result from such acts or omissions. Mortgagor
shall immediately notify Mortgagee and its successors in interest of any act or
omission that could give rise to liability under any Environmental Laws and
Regulations as soon as it occurs.
2.9. Mortgagor, its successors and assigns hereby agree to be
responsible for, defend, indemnify and hold harmless Mortgagee, its directors,
officers, employees, agents, successors and assigns, from and against any and all
losses, damages, expenses and costs, including reasonable attorneys' fees, consulting
6
fees, and experts' fees which Mortgagee may hereafter suffer, incur or lay out, by
reason of any liability arising out of or in relation to violations of any Environmental
Laws and Regulations, claims, causes of action, deman~ts, judgments, orders or
proceedings, including but not limited to, claims resulting from environmental
hazards, loss of life, injury to persons, property or business, and/or damage to natural
resources due to the acts or omissions of Mortgagor or any other person or entity,
including third parties who have trespassed on the Mortgaged Premises, during
Mortgagor's ownership of the Mortgaged Premises unless due to Mortgagee's gross
negligence or intentional wrongful actions. Mortgagor, its successors and assigns,
shall bear, pay and discharge, when and as the same become due and payable, any
and all such judgments or claims for contribution, indemnification, damages,
penalties and attorneys', consulting and experts' fees or' otherwise against Mortgagee,
shall hold Mortgagee harmless for such judgments or claims, and shall assume the
burden and expense of defending ail suits, administrative proceedings and
negotiations of any kind arising out of any of the occurrences set forth herein unless
due to Mortgagee's gross negligence or intentional wrongful acts. This
indemnification shall extend to any liability Mortgagee may suffer or incur in
connection with any hazardous waste clean-up ordered by any governmental agency
or court or as a result of any actions brought by third parties at law or in equity.
This indemnity shall sur~ve an event of foreclosure under this Mortgage or
conveyance of the Mortgaged Premises in lieu of foreclosure.
2.10. Mortgagor hereby covenants that it shall not construe this
Mortgage or take any action which may cause Mortgagee to be considered a generator
of hazardous substances, or an owner, operator or person in control of any facility or
part of any business of the Mortgagor.
3. Pavment and Performance. Mortgagor hereby agrees to pay to
Mortgagee, in accordance with the terms of the Note and this Mortgage, the principal
and interest and ail other sums therein and herein set forth. Mortgagor shall
perform and comply with ail the agreements, conditions, covenants, provisions and
undertakings contained in the Loan Documents and shall timely perform all of its
obligations and duties as lessor under any lease of all or any portion of the Mortgaged
Premises now or hereafter in effect.
4. Taxes and Other Charges. Mortgagor shall pay or cause to be paid
when due and payable, without any deduction, defalcation or abatement, all taxes,
assessments, water and sewer rents and all other charges or claims which may be
assessed, levied or filed at any time against Mortgagor, the Mortgaged Premises or
any part thereof or which by any present or future law may have priority over the
indebtedness secured hereby either in lien or in distribul;ion out of the proceeds of
any judicial sale. Mortgagor, if and as requested by Mortgagee, shall produce to
7
REC 5ool: 2;001 P~e 67275
Mortgagee, not later than ten (10) days prior to the dates when any of the same shall
commence to bear interest or penalties, receipts for or other evidence of the payment
thereof. Mortgagor shall not apply for or claim any deduction, by reason of this
Mortgage, from the taxable value of all or any part of tile Mortgaged Premises. It is
expressly agreed that no credit shall be claimed or allowed on the principal or interest
payable on the Note because of any taxes or other charges paid.
5. Insurance.
5.1. Mortgagor shall, from and after the date hereof and at all
times while this Mortgage is in force or either Note remains outstanding, maintain,
at Mortgagor's expense, insurance in amounts, with deductibles and with companies
reasonably satisfactory to Mortgagee. Without limiting the generality of the
foregoing, Mortgagor shall maintain the following minimum coverages, unless
otherwise agreed to in writing by Mortgagee, which cow.~rages may be included as
part of a blanket policy insuring the Mortgaged Premises and other properties:
(1) insurance which shall comply with the worker's
compensation and employer's liability laws of all states in which Mortgagor shall have
employees;
(2) comprehensive general liability insurance covering all
operations of Mortgagor and with a combined single limit of not less than $1,000,000
per occurrence for bodily injury (including death) and $1,000,000 for property
damage;
(3) fire, extended coverage, vandalism and malicious
mischief insurance in an amount not less than the full replacement value of any
Improvement now or hereafter erected on the Real Estal;e;
(4) if the Mortgaged Premises is in an area designated by
the Secretary of Housing and Urban Development as having special flood hazards,
flood insurance on the improvements on the Mortgaged ]Premises and any and all
personal property used or to be used in connection therewith, up to the maximum
limits of insuranee available under the National Flood Insurance Program as
authorized by the Flood Disaster Protection Act of 1973;
(5) such other insurance, and in such amounts, as may
from time to time be reasonably required by Mortgagee.
F:EC Boo~: 3001 P~e 67276
5.2. Upon execution hereof, Mortgagor shall furnish to
Mortgagee duplicate copies of such policies of insurance or, if acceptable to
Mortgagee, certificates of Mortgagor's insurance agent certifying to the insurance
required and including photocopies of all policies certified by such agent to be true
and correct, in each case specifying the expiration date. Not less than twenty (20)
days prior to the expiration of any such coverage, Mortgagor shall deliver to
Mortgagee a duplicate policy or certificate evidencing the renewal of such coverage
and the payment of all premiums.
5.3. Each insurance policy shall protect the Mortgagee or name
Mortgagee as an additional insured party and shall pro~]de that all proceeds payable
thereunder shall be paid to Mortgagee as loss payee or trustee for the beneficial
owners thereof. All policies shall be issued by companies acceptable to Mortgagee.
5.4 Each insurance policy shall contain a provision requiring the
insured to notify Mortgagee, in writing and at least thirty (30) days in advance, of any
cancellation or material change in the policy.
5.5. If the insurance, or any part thereof, shall expire, or be
withdrawn, or become void or inadequate, in the reasonable opinion of Mortgagee, by
reason of Mortgagor's breach of any condition thereof, or become void or inadequate,
in the reasonable opinion of Mortgagee, by reason of the failure or impairment of the
capital of any company in which the insurance shall be carried, Mortgagor shall place
new insurance on the Mortgaged Premises reasonably satisfactory to Mortgagee. All
renewal policies, with premiums paid, shall be delivered to Mortgagee at least thirty
(30) days before expiration of the existing policies.
5.6. In the event of loss to all or any portion of the Mortgaged
Premises, Mortgagor shall give immediate written and oral notice thereof to
Mortgagee, and Mortgagee may make proof of loss if not made promptly by
Mortgagor; provided, however., that any adjustment of proof of loss shall require the
prior written consent of Mortgagee. Each insurance company concerned is hereby
authorized and directed to make payment under such insurance, including return of
unearned premiums, to Mortgagee instead of to Mortgagor and Mortgagee jointly,
and Mortgagor irrevocably appoints Mortgagee as Mortgagor's attorney-in-fact to
endorse any draft thereof, which appointment, being for security, is irrevocable.
5.7. All policies of insurance contemplated in this Paragraph 5,
and all renewals thereof, are hereby assigned to Mortgagee as additional security for
payment of the indebtedness hereby secured and Mortgagor hereby agrees that any
amounts available thereunder upon cancellation or termination of any of such
policies or renewals, whether in the form of return of premiums or otherwise, shall be
REC Book 3OO1 P~i~e (~7277
9
payable to Mortgagee as assignee thereof. If Mortgagee becomes the owner of the
Mortgaged Premises, or any part thereof, by foreclosure or otherwise, such policies,
including all right, title and interest of Mortgagor thereunder, shall become the
absolute property of Mortgagee.
5.8. If an Event of Default under this Mortgage, the Note or any
other Loan Document has occurred or is continuing (other than a default which
occurred as a sole result of the loss), Mortgagee shall have the absolute right to retain
and apply the proceeds of any insurance, at its sole election, toward reduction of the
indebtedness secured hereby or to require Mortgagor to restore or repair the
damaged property according to plans and specifications approved by Mortgagee.
5.9. Notwithstanding any of the foregoing to the contrary, if(i) at
all times relevant hereto no Event of Default under this Mortgage, the Note or any
other Loan Document has occurred or is continuing (other than a default which
occurred as a sole result of the loss), (ii) Mortgagee in its reasonable judgment is
satisfied that there are sufficient net proceeds to complete restoration of the
building(s) and improvements on the Mortgaged Premises to substantially the same
value, condition and character as existed prior to such damage, and (iii) the insurers
(in the case of an insured casualty loss) do not deny liability as to the insureds,
Mortgagee shall consent to the use of the net proceeds of any insurance for any part
of Mortgaged Premises for restoration of the Mortgaged Premises in accordance with
the following conditions.
5.9.1. Prior to commencement of restoration, if the cost to
restore is anticipated to exceed $50,000, the contracts and plans and specifications for
the restoration shall have been approved in advance by lVlortgagee and Mortgagee
shall be provided with proof acceptable to Mortgagee of 1;he effective filing of a waiver
of mechanics' liens so as to prevent such liens from attaching to the Mortgaged
Premises;
5.9.2. Such restoration, repair or reconstruction is then allowed
by applicable law and all necessary permits and approvals have been obtained and are
fmal and unappealable;
5.9.3. The net proceeds of such insu::ance (the "Restoration
Fund") shall be deposited with Mortgagee, and any interest earned on such deposited
funds shall be a part of and follow the Restoration Fund;
5.9.4. At the time of any disbursement from the Restoration
Fund, no Event of Default under this Mortgage, the Note or any other Loan
Document shall have occurred or be continuing, no mechanics' or material suppliers'
rfi:.EC 6oot: 3001 P~e 67278
10
liens shall have been filed and remain undischarged, and a bringdown of title
insurance satisfactory to Mortgagee shall be delivered to Mortgagee;
5.9.5. Disbursements from the Restoration Fund shall be made
by Mortgagee from time to time in an amount not exceeding the cost of the work
completed since the last disbursement, upon receipt by lvlortgagee of satisfactory
evidence of the stage of completion and of performance of the work in a good and
workmanlike manner in accordance with the contracts and plans and specifications.
5.9.6. Mortgagee may retain five percent (5%) of all requests for
disbursements from the Restoration Fund as retainage until the restoration is fully
completed;
5.9.7. Mortgagee may impose such additional reasonable
conditions and requirements with respect to such restoration as are customarily
imposed by mortgagees of properties comparable to the Mortgaged Premises; and
5.9.8. If the estimated cost of restoration, as determined by
Mortgagee in its sole discretion from time to time, exceeds the net amount of
insurance proceeds awarded for the cost of such restoration, the amount of such
excess shall be paid promptly (but in no event later than thirty (30) days after
notification by Mortgagee) by Mortgagor to Mortgagee to be added to the Restoration
Fund.
6. Payment of Monthly Installments of Tm~es, Insurance, Assessments,
etc. Upon the occurrence of an Event of Default, Mortgagee may require Mortgagor
to pay to Mortgagee monthly, in addition to the required payments of interest and
principal payable under the Note and commencing with the first payment due after
the date of such request, monthly payments of 1/12th of the annual real estate taxes,
insurance premiums, water and sewer rents and assessments together with the entire
amount of any sums due for special assessments, charges or claims and any other
item which, at any time, may be or become a lien upon the Mortgaged Premises prior
to the lien of this Mortgage.
7. Waste; Maintenance; Alterations; Permits. Mortgagor shall abstain
from and shall not permit the commission of waste in or about the Mortgaged
Premises; shall maintain the Mortgaged Premises in good order and condition and in
a rentable and tenantable state of repair; and shall make or cause to be made, as and
when necessary, all repairs and replacements, structural and non-structural, exterior
and interior, ordinary and extraordinary, foreseen and unforeseen, whether or not
the same may be necessary by reason of fire or other casualty arid whether or not
insurance proceeds are available therefor. Mortgagor shall not remove or demolish
REC Ik, o~ ~OO1 Poge 67279
11
the buildings or other improvements now or hereafter erected upon the Real Estate,
nor alter the design or structural character of any building or other improvement
now or hereafter erected thereon so as to diminish the value thereof, unless
Mortgagee shall in-st consent thereto in writing. Mortgagor shall obtain and cause to
be kept in full force and effect all necessary licenses, peiunits, authorizations,
consents, and approvals required by all governmental or quasi-governmental
authorities having jurisdiction, including without limitation requisite certificates of
use and occupancy, elevator certificates and certificates of the local board of fire
underwriters (except to the extent Mortgagor contests any of the same in accordance
with Paragraph 2 hereof).
8. Leases.
8.1. The form and content of any and all leases for all or any part
of the Mortgaged Premises shall be subject in all respects to the prior written
approval of the Mortgagee which approval shall not be unreasonably withheld,
conditioned or delayed.
8.2. Mortgagor shall timely perform all of its obligations under
the terms and conditions of any leases (which shall inckLde any and all agreements
for the use or occupancy of any portion of the Mortgaged Premises) affecting the
Mortgaged Premises and shall not accept rent therefor in advance for a period of
more than one (1) month.
8.3. Mortgagor shall not enter into any lease for all or any
portion of the Mortgaged Premises except on commercially reasonable terms and fair
market value rentals. Mortgagor shall, in any event, provide Mortgagee with copies
of all leases and amendments, supplements, exhibits and[ riders thereto either now or
hereafter entered into.
8.4. There is no assignment or pledge of any rents, issues and
profits of or from the Mortgaged Premises now in effect, and Mortgagor shall not
make any other assignment or pledge thereof to anyone other than Mortgagee until
the indebtedness secured hereby is fully paid.
8.5. Mortgagor shall provide that all leases entered into after the
date hereof which permit any party to occupy, possess, or use in any way the
Mortgaged Premises or any part thereof shall include an express prohibition of the
storage, treatment or discharge, production, transportation or disposal of any
hazardous waste, polychiorinated biphenyls, asbestos or other hazardous substance
as defined by CERCLA unless in strict compliance with applicable laws and
12
regulations, and the failure to comply with such prohibition shall expressly constitute
a default under any such leases.
8.6. Upon the request of Mortgagee, Mortgagor shall use its best
efforts to deliver to Mortgagee, within thirty (30) days thereafter, a certificate from
each tenant certifying to the basic terms of its lease, that the lease is unmodified and
in full force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), certifying the dates to
which the basic rent and additional rent, if any, have been paid, certifying that the
landlord under the lease is not in default thereunder anti certifying that the tenant
has no defenses, setoffs, claims or counterclaims against the landlord.
9. Declaration of No Set-Off. If reqqested at any time by Mortgagee,
Mortgagor shall promptly (and in any event within ten (10) days after request
therefor) furnish Mortgagee or Mortgagee's designee with a Declaration of No
Set-Off, in form and substance satisfactory to Mortgagee or any such designee,
certifying, in a writing duly acknowledged, the amount of principal, interest and
other charges then owing under the Note, and whether there are any set-offs or
defenses against the same, and, if so, the nature thereof. Mortgagee shall promptly
issue a similar Declaration to Mortgagor upon Mortgagor's reasonable request
therefor.
10. Inspection. Mortgagee and any persons authorized by Mortgagee
shall have the right at any time, upon 24 hours advance notice to Mortgagor, to enter
upon the Mortgaged Premises during normal business hours to inspect and
photograph its condition and state of repair and occupancy. In the event
environmental contamination or the potential for contaraination is discovered,
Mortgagee and any persons authorized by Mortgagee shall have the right to
undertake environmental testing in order to determine the presence or absence of
hazardous, toxic or otherwise polluting substances and to determine whether and to
what extent remediation of the property is necessary.
11. Books and Records. Mortgagor will maintain full and complete
books of account and other records reflecting the results of its operations (in
conjunction with its operations of the Mortgaged Premises), in accordance with
generally accepted accounting principles, and furnish or cause to be furnished to
Mortgagee such financial data and other information as Mortgagee shall, from time to
time, reasonably request with respect to Mortgagor and the ownership and operation
of, and the construction of Improvements on, the Mortgaged Premises. Mortgagee
shall have the right, at reasonable times and upon 24 hours advance notice, to audit
Mortgagor's books of account and records.
RISC BooI: ~001 Po~e &7281
13
12. Required Notices. Mortgagor shall notify Mortgagee promptly upon
Mortgagor becoming aware of the occurrence of any of t!he following: (a) a fire or
other casualty causing dnmage to the Mortgaged Premises; (b) receipt of notice of
eminent domain proceedings or condemnation of all or s~y portion of the Real Estate;
(c) receipt of notice from any governmental authority relating to the structure, use,
operation or occupancy of or otherwise related to or affecting the Mortgaged
Premises, including but not limited to any notice relating to environmental or land
use regulation laws; (d) substantial change in the occup~mcy, operation or use of any
portion of the Mortgaged Premises; (e) receipt of any notice of the imposition of, or of
threatened or actual execution on, any lien on, or securi~y interest in, the Mortgaged
Premises; and (f) commencement of any litigation or notice of any threat of litigation
which materially adversely affects the Mortgaged Premises, whether or not covered
by insurance.
13. No Transfer; No Other Liens.
13.1. Without the prior written consent of Mortgagee, which
shall not be unreasonably withheld, or except as permitted in the Note, Mortgagor
shall abstain from and shall not cause or permit any conveyance, transfer or other
disposition of title to, or any legal or equitable interest in, the Mortgaged Premises or
any part thereof (other than by execution on the Note or foreclosure under this
Mortgage) voluntarily or by operation of law, or any agreement to do any of the
foregoing (including, but not limited to, any lease or installment sales contract with
respect to any or all of the Mortgaged Premises). Any sale, assignment, pledge,
encumbrance or transfer to a third party of any interest in the Mortgagor shall be
deemed to violate this prohibition on transfers notwithstanding the above
prohibitions, William Witkoski, a principal in the Mortgagor, shall be permitted to
transfer his interest in the Mortgagor to any of the other' partners or to a third party,
if applicable, without resulting in a violation of this Paragraph 13.
13.2. Mortgagor shall not, without the prior written consent of
Mortgagee, create or cause or permit to exist (voluntarily or involuntarily) any lien
(other than the lien of this Mortgage and any permitted ].iens identified in paragraph
1 of the Mortgage), encumbrance or charge on, or security interest in, all or any part
of the Mortgaged Premises, except real estate taxes whiclh are not yet due and
payable.
13.3. If any lien or encumbrance prohibited under this Paragraph
13 is filed or entered, Mortgagor shall have it removed of record within thirty (30)
days after it is filed or entered by either paying it, having' it bonded in a manner
which removes it of record or otherwise having it removed of record.
Notwithstanding the foregoing, if Mortgagor in good faith and by appropriate legal
REC ~oo~ ~001 P~e 67282
14
action shall contest the validity of any such lien, judgment or other encumbrance, or
the amount thereof, and, at the option of Mortgagee, shall have established on its
books or by deposit of cash with Mortgagee a reserve for the payment thereof in such
amount as Mortgagee may require, and, in the event this Mortgage is subordinate to
such lien, judgment or encumbrance, if Mortgagee shall have consented in writing to
such action, then Mortgagor shall not be required to have such lien, judgment or
other encumbrance removed of record while the reserve is maintained and so long as
the contest operates to stay any proceedings which may be instituted to enforce
payment or satisfaction of such lien, encumbrance or other judgment and prevent a
sale of the Mortgaged Premises to pay or satisfy such lien, encumbrance or other
judgment, such contest is maintained and prosecuted with diligence, and shall not
have been terminated or discontinued adversely to Mortgagor.
13.4. By placing a mortgage, lien or encumbrance of any type,
whether voluntary or involuntary, against the Mortgaged Premises, the holder
thereof shall be deemed to have agreed, without any further act or documentation
being required, that its mortgage, lien, or encumbrance ;shall be subordinated in lien
to any future amendments, consolidations or extensions to this Mortgage (including,
without limitation, amendments which increase the interest rate on the Note or
provide for future advances secured by this Mortgage).
13.5. The holder of any subordinate mortgage or other lien,
whether or not consented to by Mortgagee, expressly agrees by acceptance of such
subordinate mortgage or other lien that it waives and relinquishes any rights which it
may have, whether under a legal theory of marshaling of assets or any other theory at
law or in equity, to restrain Mortgagee from, or recover damages from Mortgagee as a
result of, the exercise by Mortgagee of any of its various remedies hereunder and
under any other documents or instruments evidencing or securing the indebtedness
secured hereby, in such order and with such timing as Mortgagee shall deem
appropriate in its sole and absolute discretion. Mortgagor shall have no right to
permit the holder of any subordinate mortgage or other ~mbordinate lien, whether or
not consented to by Mortgagee, to terminate any lease of all or a portion of the
Mortgaged Premises whether or not such lease is subordinate (whether by law or the
terms of such lease or a separate agreement) to the lien of this Mortgage without first
obtaining the prior written consent of Mortgagee. The holder of any subordinate
mortgage or other subordinate lien shall have no such right, whether by foreclosure
of its mortgage or lien or otherwise, to terminate any such lease, whether or not
permitted to do so by Mortgagor or as a matter of law, a~Ld any such attempt to
terminate any such lease shall be ineffective and void without first obtaining the
prior written consent of Mortgagee.
15
13.6. Mortgagee may, at any time or from time to time, renew,
extend or increase the ~rnount of this Mortgage, or alter or modify the terms of this
Mortgage or the Note in any way, or waive any of the terms, covenants or conditions
hereof or of the Note in whole or in part and may release any portion of the
Mortgaged Premises or any other security, and grant such extensions and
indulgences in relation to the indebtedness secured hereby as Mortgagee may
determine, without the consent of any junior lien or encumbrancer and without any
obligation to give notice of any kind thereto and without in any manner affecting the
priority or the liens hereof on all or any part of the Mortgaged Premises.
13.7. Any violation of any of the foragoing limitations, at the
option of Mortgagee, shall be deemed an Event of Default hereunder.
14. Cure by Mortgagee. If Mortgagor at any time (a) fails, after thirty
(30) days' written notice from Mortgagee, to pay any claim, lien or encumbrance
which shall be prior to this Mortgage, or to pay when due any tax or assessment or
any insurance premium, or (b) falls, after thirty (30) day's' written notice from
Mortgagee, to keep the Mortgaged Premises in repair, or to replace or restore as
required hereby, or (c) shall commit or permit waste, or (d) if there be commenced
any action or proceeding affecting the Mortgaged Premises or the title thereto which
Mortgagor does not defend in accordance with the provisions of paragraph 13.3,
Mortgagee, at its option, may pay such claim, lien, encumbrance, tax, assessment or
premium, with right of subrogation thereunder, may procure such abstracts or other
evidence of title as it deems necessary, may make such repairs, replacements or
restorations and take such steps as it deems advisable to prevent or cure such waste,
and may appear in any such action therein as Mortgagee deems advisable~and for any
of such purposes Mortgagee may advance such sums of money as it deems necessary;
provided, however, that any notices sent or grace periods granted to Mortgagor to
cure shall not be necessary if in Mortgagee's reasonable judgment it is necessary that
Mortgagee take immediate action in order to protect the security provided for by this
Mortgage. Mortgagor shall pay to Mortgagee immediately upon demand all sums of
money advanced by Mortgagee pursuant to this Paragraph 14, together with interest
on each advance at the Default Rate set forth in the Note, and all such sums and
interest thereon shall be secured hereby.
15. Retention of Counsel. If Mortgagee retains the services of counsel
by reason of an Event of Default hereunder or on account of any matter involving
Mortgagor's title to the Mortgaged Premises or the security interest intended to be
granted hereby, including, without limitation, condemnation proceedings, bankruptcy
proceedings, or proceedings involving defects in title which are not covered by
Mortgagee's title insurance policy, all costs of suit and reasonable attorneys' fees shall
upon demand therefor forthwith become due and payable by Mortgagor and shall be
16
secured hereby. If Mortgagee shall institute legal proceedings to foreclose this
Mortgage or enter judgment on the Note, Mortgagor shall pay all expenses, including
attorneys' fees as herein provided and court costs, of Mortgagee in connection with all
such proceedings, whether or not otherwise legally chargeable to Mortgagor, together
with interest at the Default Rate as defined in the Note, until actual payment is made
of the full amount due Mortgagee, whether before or after judgment, and all such
sums shall be secured hereby.
16. Events of Default.
16.1. Each of the following shall constitute an event of default
hereunder (an "Event of Default"):
(i) The occurrence of any Event of Default under (and as defined
in) the Note, or any other Loan Document subject to applicable notice and grace
period (if any) set forth therein.
(ii) The failure of Mortgagor to pay ~nay amount owed hereunder
within fifteen (15) days of the date when due and payable.
(iii) The occurrence of any event specified and prohibited in
paragraph 13.1 hereof.
(iv) The failure of Mortgagor to observe, perform or abide by any
non-monetary obligation, covenant, warranty, agreement, condition or provision
contained herein, excepting those enumerated in Paragraph 13.1 hereof; provided,
that an Event of Default shall not be deemed to have occurred hereunder because of
or with respect to any default or breach by Mortgagor on or of any obligation,
covenant, warranty, agreement, condition or provision described in this
subparagraph (iv) unless Mortgagee shall have first given Mortgagor written notice of
such default or breach, specifying the nature and extent thereof, and Mortgagor shall
have failed (a) to begin correcting such default or breach within a period of five (5)
days after the date of receipt of such notice, and (b) to proceed diligently with efforts
to cure the default or breach until it shall be fully cured '~ithin no more than thirty
(30) days after the date of such notice; provided, further, that if and to the extent
such default or breach cannot reasonably be cured within such thirty (30) day period
as aforesaid, and if Mortgagor has theretofore diligently .attempted to cure the same
and thereafter continues diligently to cure the same, then the cure period provided
for herein may be extended up to a date set by Mortgagee.
17
(v) The occurrence of a default on or breach of any other
monetary or non-monetary obligation secured by the Mortgaged Premises or any part
thereof which continues uncured after the expiration of any applicable cure period.
(vi) (1) The commencement by Mo~Lgagor, or any guarantor or
surety for the indebtedness secured hereby, of a voluntary case under any Chapter of
the Bankruptcy Code (Title 11 of the United States Code), as now or hereafter in
effect, or the taking by Mortgagor or any such guarantor or surety of any equivalent
or similar action by filing of a petition or otherwise under any other federal or state
law in effect at the time relating to bankruptcy or insolvency; (2) the filing of a
petition against Mortgagor or any such guarantor or surety under any Chapter of the
Bankruptcy Code (Title 11 of the United States Code), as now or hereafter in effect,
or the filing of a petition seeking any equivalent or similar relief against Mortgagor or
any such guarantor or surety under any other federal or state law in effect at the
time relating to bankruptcy or insolvency, and the failure by Mortgagor or such
guarantor or surety to secure the discharge of such petition within sixty (60) days
from the date of filing; (3) the making by Mortgagor or any such guarantor or surety
of a general assignment for the benefit of its creditors; (4) the appointment of a
receiver, trustee, custodian or similar officer for Mortgagor or any such guarantor or
surety or for the property of Mortgagor or any such guarantor or surety, and the
failure by Mortgagor or such guarantor or surety to secure the discharge of such
receiver, trustee, custodian or similar officer within sixty (60) days from the date of
appointment; or (5) the admission in writing by Mortgagor or any such guarantor or
surety of any inability to pay debts generally as they become due.
16.2. If a prior mortgagee or the holder of any junior mortgage or
any other lien on the Mortgaged Premises (without hereby implying Mortgagee's
consent to any such junior or senior mortgage or lien) institutes foreclosure or other
proceedings for the enforcement of its remedies thereunder, or if a default or an
Event of Default exists under any other mortgage or lien on the Mortgaged Premises,
such shall constitute an Event of Default under this Mortgage.
17. Remedies.
17.1. Upon the occurrence of any Event of Default, the entire
unpaid balance of the principal, accrued interest and all other sums secured by this
Mortgage shall become immediately due and payable, at the option of Mortgagee,
without further notice or demand.
17.2. When the entire indebtedness ;shall become due and
payable, either because of maturity or because of the occurrence of any Event of
~EC Baa~: 2~001 P:.e 67286
18
Default, or otherwise, then forthwith Mortgagee may, at its option, do any or all of
the following:
(i) Foreclosure. Institute an .action of mortgage
foreclosure against the Mortgaged Premises, or take such other action at law or in
equity for the enforcement of this Mortgage and realization on the mortgage security
or any other security herein or elsewhere provided for, as the law may allow, and may
proceed thereon to final judgment and execution for the entire unpaid balance of the
principal debt, with interest at the Interest Rate defined and set forth in the Note to
the date of defanlt, and thereafter at the Default Rate defined and set forth in the
Note, together with all other sums due by Mortgagor in accordance with the
provisions of the Note and this Mortgage and any other Loan Document, including all
sums which may have been loaned by Mortgagee to Mortgagor after the date of this
Mortgage pursuant to any extension or modification of the Note, this Mortgage or
any other Loan Document, and all sums which may haw; been advanced by
Mortgagee for taxes, water or sewer rents, charges or cledms, payments on prior liens,
insurance, utilities or repairs to the Mortgaged Premises, all costs of suit, together
with interest at such Default Rate on any judgment obtained by Mortgagee from and
after the date of any sheriffs sale until actual payment is made of the full amount due
Mortgagee, and reasonable attorneys' fees; and
(ii) Entry. Enter into possession of the Mortgaged
Premises, with or without legal action; lease the same; collect all rents and profits
therefrom and, after deducting all costs of collection and administration expenses,
apply the net rents and profits to the payment of any sums due under any prior lien,
taxes, water and sewer rents, charges (including but not limited to agents'
compensation and fees and costs of counsel and receivers), claims, insurance
premiums and all other carrying charges, and to the maintenance, repair or
restoration of the Mortgaged Premises, or on account and in reduction of the
principal or interest, or both, hereby secured, in such order and amounts as
Mortgagee in Mortgagee's sole discretion may elect. Mortgagee may also, at its
option, enter upon the Mortgaged Premises for the purpose of making repairs,
alterations and improvements necessary to protect or enhance its security interest
therein, including the right to undertake environmental testing in order to determine
the presence or absence of hazardous, toxic or otherwise polluting substances and to
determine whether and to what extent remediation of the property is necessary.
FOR THE PLrRPOSE OF OBTAINING POSSESSION OF THE MORTGAGED
PREMISES FOLLOWING ANY DEFAULT HEREUNDF, R OR UNDER THE NOTE,
MORTGAGOR HEREBY AUTHORIZES AND EMPOWF, RS ANY ATTORNEY OF
ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR
ELSEWHERE, AS ATTORNEY FOR MORTGAGOR AND ALL PERSONS
CLAIMING UNDER OR THROUGH MORTGAGOR, TO SIGN AN AGREEMENT
19
FOR ENTERING IN ANY COMPETENT COURT AN ACTION IN EJECTMENT
FOR POSSESSION OF THE MORTGAGED PREMISES AND TO APPEAR FOR
AND CONFESS JUDGMENT AGAINST MORTGAGOR, AND AGAINST ALL
PERSONS CLAIMING UNDER OR THROUGH MORTGAGOR, IN FAVOR OF
MORTGAGEE, FOR RECOVERY BY MORTGAGEE OF POSSESSION THEREOF,
FOR WHICH THIS MORTGAGE OR A COPY HEREOF, VERIFIED BY
AFFIDAVIT, SHALL BE SUFFICIENT W~T; AND THEREUPON A WRIT
OF POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE
MORTGAGED PREMISES, WITHOUT ANY PRIOR WECIT OR PROCEEDING
WHATSOEVER AND WITHOUT ANY STAY OF EXECUTION. If for any reason
after such action has been commenced it shall be discontinued or suspended, or
possession of the Mortgaged Premises shall remain in or' be restored to Mortgagor,
Mortgagee shall have the right for the same default or any subsequent default to
bring an amicable action in ejectment and confess judgment therein before or after
the institution of proceedings to foreclose this Mortgage or to enforce the Note, or
after entry of judgment therein or on the Note, or after a sheriffs sale or judicial sale
or other foreclosure sale of the Mortgaged Premises in which Mortgagee is the
successful bidder, it being the understanding of the parties that the authorization to
pursue such proceedings for obtaining possession and confession of judgment therein
is an essential part of the remedies for enforcement of the Mortgage and shall survive
any execution sale to Mortgagee; and
(iii) Receivership. Have a receiver appointed to enter into
possession of the Mortgaged Premises, collect the rents, issues and profits therefrom
and apply the same as the court may direct. Mortgagee shall be entitled to the
appointment of a receiver without the necessity of proving either the inadequacy of
the security or the insolvency of Mortgagor of any other person who may be legally or
equitably liable to pay moneys secured hereby, and Mortgagor and each such person
shall be deemed to have waived such proof and to have consented to the appointment
of such receiver. Should Mortgagee or any receiver collect rents, issues or profits
from the Mortgaged Premises, Mortgagee shall (after pa~,~'aent of all costs and
expenses incurred) apply such rents, issues and profits received by it to the
indebtedness secured hereby; and such rents, issues and profits shall not be used to
cure the default, without the prior written consent of Mortgagee. Mortgagee shall be
liable to account only for rents, issues and profits actually received by Mortgagee.
17.3. Upon the occurrence of an Event of Default hereunder,
Mortgagee, pursuant to the foregoing remedies, or in addition thereto, (i) shall be
entitled to resort to its several securities for the payment of the s, rns secured hereby
in such order and msuner as Mortgagee may think fit without impairing Mortgagee's
lien in or rights to any of such securities and without affecting the liability of any
person, firm or corporation for the sums secured hereby, except to the extent that the
~EC I~oo~: 3~001 P~,9e 6,7288
2O
indebtedness secured hereby shall have been reduced by the actual monetary
consideration, if any, received by Mortgagee from the proceeds of such security; (ii)
may, in Mortgagee's sole discretion, release for such consideration, or none, as
Mortgagee may require, any portion of the Mortgaged Premises without, as to the
remainder of the security, in any way impairing or affecting the lien of this Mortgage
or the priority thereof or improving the position of any subordinate lienholder with
respect thereto, except to the extent that the indebtedness secured hereby shall have
been reduced by the actual monetary consideration, if any, received by Mortgagee for
such release; and/or (iii) may accept the assignment or pledge of any other property
in place thereof as Mortgagee may require without being accountable for so doing to
any other lienor. In the event of any breach by Mortgagor of any of the covenants,
agreements, terms or conditions contained in this Mortgage, Mortgagee shall be
entitled to enjoin such breach and shall have the right to invoke any right and
remedy allowed at law or in equity or by statute or otherwise as though such other
remedies were provided for in this Mortgage.
17.4. Mortgagee shall have the right, from time to time, to bring
an appropriate action to recover any sums required to be paid by Mortgagor under
the terms of this Mortgage, as they become due, without regard to whether or not the
principal indebtedness or any other sums secured by the Note and this Mortgage
shall be due, and without prejudice to the right of Mortgagee thereafter to bring an
action of mortgage foreclosure, or any other action, for any default by Mortgagor
existing at the time the earlier action was commenced.
17.5. Any real estate sold pursuant to any writ of execution
issued on a judgment obtained by virtue of the Note or this Mortgage, or pursuant to
any other judicial proceedings under the Mortgage, may be sold in one parcel, as an
entirety, or in such parcels, and in such manner or order, as Mortgagee, in its sole
discretion, may elect.
17.6. If an Event of Default hereunder has occurred or is
continuing, Mortgagee shall have the right to set off all or any part of any amount
due by Mortgagor to Mortgagee under the Note, this Mortgage or otherwise, against
any indebtedness, liabilities or obligations owing by Mortgagee for any reason and in
any capacity to Mortgagor, including any obligation to disburse to Mortgagor or its
designee any funds or other property on deposit with or otherwise in the possession,
control or custody of Mortgagee.
18. Rights and Remedies Cumulative.
18.1. The rights and remedies of Mortgagee as provided in the
Note, this Mortgage or any other Loan Document, and in the warrants attached
21
F2EC Book, ~o0~m P~ee
thereto or contained therein, shall be cumulative and concurrent, may be pursued
separately, successively or together against Mortgagor or against the Mortgaged
Premises, or any one or more or all, at the sole discretion of Mortgagee, and may be
exercised as often as occasion therefor shall arise. The fhilure to exercise any such
right or remedy shall in no event be construed as a waiver or release thereof.
18.2. Any failure by Mortgagee to insist upon strict performance
by Mortgagor of any such terms and provisions of this Mortgage or of the Note or of
any other Loan Document shall not be deemed to be a waiver of any such terms or
provisions, and Mortgagee shall have the right thereafter to insist upon strict
performance by Mortgagor of any and all such terms or provisions thereof.
18.3. Neither Mortgagor nor any other person now or hereafter
obligated for payment of all or any part of the sums now or hereafter secured by this
Mortgage shall be relieved of such obligation by reason of the failure of Mortgagee to
comply with any request of Mortgagor or of any other person so obligated to take
action to foreclose on this Mortgage or otherwise enforce any provisions of the
Mortgage or the Note or any other Loan Document, or by reason of any agreement or
stipulation between any subsequent owner of the Mortgaged Premises and Mortgagee
extending the time of payment or modifying the terms of the Mortgage or Note
without first having obtained the consent of Mortgagor or such other person; and in
the latter event Mortgagor and all such other persons shall continue to be liable to
make payments according to the terms of any such extonsion or modification
agreement, unless expressly released and discharged in ~rriting by Mortgagee.
18.4. Mortgagee may release, regardless of consideration, any
part of the security held for the indebtedness secured by this Mortgage without, as to
the remainder of the security, in any way impairing or a:~fecting the lien of this
Mortgage or its priority over any subordinate lien.
18.5. For payment of the indebtedness secured hereby,
Mortgagee may resort to any other security therefor heki by Mortgagee in such order
and manner as Mortgagee may elect.
18.6. Except as otherwise pe~u~itted by law, the receipt by
Mortgagee of any sum from Mortgagor after the date on which Mortgagee elects to
accelerate the indebtedness secured hereby by reason of an Event of Default
hereunder or under the Note or any other Loan Document shall not constitute a cure
or waiver of such default or a reinstatement of the Note .or Mortgage or such other
Loan Document unless Mortgagee expressly agrees, by ~Titten notice to Mortgagor,
that such payment shall be accepted as a cure or waiver of the default.
REC Book ~5001 Pale ~,7290
22
19. Possession by Mortgagee. If Mortgagee shall take possession of the
Mortgaged Premises as provided herein, Mortgagee may do all or any of the following
(provided that nothing herein contained shall obligate Mortgagee to do any of the
same): (a) hold, manage, operate, lease and sublease the Mortgaged Premises to
Mortgagor or any other person or persons, on such terms and for such periods of time
as Mortgagee may deem proper, and the provisions of ar~y lease or sublease made by
Mortgagee pursuant hereto shall be valid and binding upon Mortgagor
notwithstanding the fact that Mortgagee's right of possession may terminate or this
Mortgage may be satisfied of record prior to the expiration of the term of any such
lease; (b) make such alterations, additions, improvements, renovations, repairs and
replacements to the Mortgaged Premises as Mortgagee may deem proper; (c)
demolish any part or all of the buildings, structures or other improvements on the
Real Estate; (d) remodel such buildings, structures or other improvements so as to
make them available in whole or in part for any business, dwelling, multiple dwelling
or other purposes; and (e) collect the rents, issues and profits arising from the
Mortgaged Premises, both past due and thereafter becoraing due, and apply the same,
in order of priority as Mortgagee may determine, to the payment of all charges and
commissions incidental to the collection of rents and the management of the
Mortgaged Premises and all other sums or charges required to be paid by Mortgagor
hereunder or under the Note. All moneys advanced by Mortgagee for the purposes
aforesaid and not repaid out of the rents collected shall immediately and without
demand be repaid by Mortgagor to Mortgagee, together with interest thereon at the
Default Rate defined and set forth in the Note, and shall be added to the principal
indebtedness hereby secured. The taking of possession and collection of rents by
Mortgagee as aforesaid shall not be construed to be an affirmation of any lease, or
any part thereof, and Mortgagee or any other purchaser at any foreclosure sale may,
to the extent otherwise permitted, terminate any lease either in accordance with its
terms or pursuant to its right to do so by virtue of its possession of the Mortgaged
Premises.
20. Waivers. The granting of an extension or extensions of time by
Mortgagee with respect to the performance of any provis;ion of this Mortgage on the
part of Mortgagor to be performed, or the taking of any additional security, or the
waiver by Mortgagee or failure by Mortgagee to enforce ~my provision of this
Mortgage or to declare a default with respect thereto, shall not operate as a waiver of
any subsequent default or defaults or affect the right of Mortgagee to exercise all
rights, powers or remedies set forth herein and therein.
21. Condemnation.
21.1. Mortgagee shall be entitled to receive all sums which have
been or may be awarded Mortgagor for the taking or condemnation of the Mortgaged
23
I~EC Boot: 3OO1 P[~e~ 67291
Premises or any part thereof for any public or quasi-public use or purpose, and any
sums which may be awarded Mortgagor for damages caused by public works or
construction on or near the Mortgaged Premises. All such proceeds and awards are
hereby assigned to Mortgagee, and Mortgagor, upon request by Mortgagee, agrees to
make, execute and deliver any additional assignments or documents which may be
necessary from time to time to enable Mortgagee, as its option, to collect and receive
the same. Except as otherwise provided in Paragraph 5.9. hereof, which shall also
apply to proceeds of condemnation as well as insurance, Mortgagee shall have the
right to retain and apply all such proceeds and awards, as its election, to reduction of
the indebtedness secured hereby, in such order of application as Mortgagee in its
discretion shall determine, provided that interest shall be payable only on the amount
of principal outstanding at any time after application of any such proceeds.
21.2. If the amount of the initial award of damages for the taking
or condemnation is insufficient to pay in full the indebtedness secured hereby, with
interest and other appropriate charges and other sums ~lecured hereby, Mortgagee
shall have the right to prosecute to final determination or settlement an appeal or
other appropriate proceedings in the name of Mortgagee or Mortgagor, for which
Mortgagee is hereby appointed attorney-in-fact for Mortgagor, which appointment,
being for security, is irrevocable. In that event, the expenses of the proceeding,
including attorneys' fees as aforesaid, shall be paid first out of the proceeds, and only
the excess, if any, paid to Mortgagee shall be credited against the amounts due under
this Mortgage.
21.3. Nothing herein shall limit the rights otherwise available to
Mortgagee, at law or in equity, including the right to intervene as a party to any
condemnation proceeding; and Mortgagee is hereby expressly given the right to
intervene as a party to, and otherwise participate in, any such proceeding, and, to the
extent reasonably required, to engage counsel on its behalf, and to add the reasonable
attorneys' fees of any such counsel to the amounts secured hereby.
22. Security Agreement.
22.1. This Mortgage constitutes a security agreement under the
Pennsylvania Uniform Commercial Code, and Mortgago:r hereby grants to Mortgagee
a security interest in all the property (and the proceeds thereoi0 now owned or
hereinafter acquired by Mortgagor and included in the Mortgaged Premises which
might otherwise be deemed "personal property", as well as a security interest in the
proceeds thereof (the "Collateral"). Mortgagor shall execute, deliver, file and refile
any financing statements, continuation statements, or other security agreements
Mortgagee may reasonably require from time to time to confirm the lien of this
Mortgage with respect to the Collateral. Without limiting the generality of the
REC Bo,,lc 3001 P~ 67292
24
foregoing, Mortgagor hereby irrevocably appoints Mortgagee attorney-in-fact for
Mortgagor to execute, deliver and file such continuation statements for and on behalf
of Mortgagor, which appointment, being for security, is irrevocable.
22.2. In addition to any other remedies granted in this Mortgage,
Mortgagee may, upon the occurrence of an Event of Default, proceed under the
Uniform Commercial Code as to all or any part of the Collateral and will have and
may exercise, with respect to the Collateral, all rights, remedies and powers of a
secured party under the Uniform Commercial Code, including, without limitation,
the right and power to sell at public or private sale or sales, or otherwise dispose of,
lease or utilize the Collateral or any parts thereof in any manner authorized or
permitted under the Uniform Commercial Code after default by a debtor, and to
apply the proceeds thereof in payment of any reasonable costs and expenses and
reasonable attorney's fees and legal expenses thereby incurred by Mortgagee, and to
the payment of indebtedness secured by this Mortgage in such order and manner as
Mortgagee may elect.
22.3. Among the rights Mortgagee shall have in the event of such
default, and without limitation of the foregoing, Mortgagee may take possession of
the Collateral and enter upon any premises where the same may be situated for such
purpose without being guilty of trespassing, and to take any action deemed necessary
or appropriate or desirable by Mortgagee, at its option, to repair, refurbish or
otherwise prepare the Collateral for sale, lease or other use or disposition as herein
authorized.
22.4. To the extent permitted by law, Mortgagor expressly waives
any notice of sale or other disposition of the Collateral a:ad any other rights or
remedies of a debtor or formalities prescribed by law relative to a sale or disposition
of the Collateral or exercise of any other right or remedy of Mortgagee existing after
default of Mortgagor hereunder; and to the extent any such notice is required and
cannot be waived, Mortgagee agrees that if such notice is mailed, postage prepaid, to
Mortgagor at its address provided herein at least ten (10) days before the time of sale
or disposition, such notice shall be deemed reasonable and shall fully satisfy any
statutory or other requirement for the giving of such notice. Upon the occurrence of
an Event of Default, Mortgagee shall have the right, at il~s option, to transfer at any
time to itself or its nominee the Collateral or any part thereof, and to receive the
moneys, income, proceeds or benefits attributable or acc:ming thereto and to hold the
same as security for the indebtedness or to apply it to the principal, interest and
other ~r~ounts owing on any of the indebtedness, in such order and manner as
Mortgagee may elect. All rights to marshaling of assets of Mortgagor, including any
such right with respect to the Collateral, are hereby waived.
25
22.5. Mortgagee may require Mortgagor to assemble the
Collateral and make it available to Mortgagee at a place to be designated by
Mortgagee that is reasonably convenient to both parties. All reasonable expenses of
retaking, holding, preparing for sale, lease or other use, of disposition, settling,
leasing or otherwise using or disposing of the Collateral and the like which are
incurred or paid by Mortgagee as authorized or permitted hereunder, including all
reasonable attorneys' fees, legal expenses and costs, shall be added to the
indebtedness secured by this Mortgage and Mortgagor shall be liable therefor.
23. Further Assurances. Mortgagor shall execute and deliver such
further instruments and perform such further acts as may be reasonably requested
by Mortgagee from time to time to confirm the provisions of this Mortgage, the Note
or any other Loan Document, to carry out more effectiw.~ly the purposes hereof or
thereof, or to confirm the priority of the lien created by this Mortgage on any
property, rights or interests encumbered or intended to be encumbered by the lien of
this Mortgage or the other Loan Documents securing the Note.
24. No Offset. All sums payable by Mortgagor herein shall be paid
without notice, demand, counterclaim, set-off, deduction or defense, without
abatement, suspension, deferment, diminution, or reduction, and the obligations and
liabilities of Mortgagor hereunder shall in no way be released, discharged or
otherwise affected (except as expressly provided herein) by reason of (a) any damage
to or destruction of or any condemnation or similar taking of the Mortgaged Premises
or any part thereof; (b) any restriction or prevention of or interference with any use
of the Mortgaged Premises or any part thereof; (c) any tiltle defect or encumbrance or
any eviction from the Mortgaged Premises or any part thereof by title, paramount or
otherwise; (d) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to Mortgagee, or any action
taken with respect to this Mortgage by any trustee or receiver of Mortgagee or by any
court in any such proceeding; (e) any claim which Mortgagor has or might have
against Mortgagee; or (f) any other occurrences whatsoever, whether or not
Mortgagor shall have notice or knowledge of any of the foregoing. Mortgagor waives
all rights now and hereafter conferred by statute or otherwise to any abatement,
suspension, deferment, diminution or reduction of any sum secured hereby and
payable by Mortgagor.
25. Miscellaneous Provisions.
25.1. Mortgagee as Party to Litigation. If Mortgagee shall become
a party, as plaintiff or defendant, to any suit or legal proceeding brought by any third
party affecting the lien hereby created on the Mortgaged Premises or in any way
involving Mortgagee on account of its position as mortgagee under this Mortgage, or
F(EC Boo): 3001 P(~)~ 67294-
26
as payee under the Note, Mortgagor shall indemnify, defend, and hold Mortgagee
harmless from all liability by reason of such litigation, ir~cluding reasonable attorneys'
fees and expenses incurred by Mortgagee in any such litigation, whether or not any
such litigation is prosecuted to judgment. Mortgagor agcees to pay to Mortgagee on
demand its costs, expenses and reasonable attorneys' fees as aforesaid in any such
suit or proceeding.
25.2. Stamps or Taxes on Mortgage or Note. Mortgagor agrees to
pay the cost of any revenue, tax or other stamps now or hereafter required by law at
any time to be affLxed to this Mortgage or the Note, or m~y tax directly or indirectly
on Mortgagee with respect to the Mortgaged Premises, the value of Mortgagor's
equity therein, or the indebtedness evidenced by the Nol;e or secured by this
Mortgage, but excluding any franchise or bank shares tax on the income of
Mortgagee.
25.3. Construction of Terms. The words "Mortgagor" and
"Mortgagee", whenever used herein, are intended to and shall be construed to include
the respective successors and assigns of Mortgagor and Mortgagee.
25.4. Binding Obligation. All covenants, agreements,
authorizations, waivers, releases, rights, representations and warranties contained in
this Mortgage made or given by or on behalf of Mortgagor shall be binding upon its
partners and successors in title or interest and its and their respective heirs,
executors, administrators, successors and assigns, whether so expressed or not, and
all covenants, agreements, authorizations, waivers, releases, rights, representations
and warranties contained herein shall inure to the benefit of Mortgagor and
Mortgagee and to each of their respective successors and assigns.
25.5. Communications. All communications, notices, requests,
and demands required or permitted by this Mortgage or given pursuant to it shall be
in writing, whether or not a writing is expressly required hereby, and shall be given
by: (i) personal service, (ii) first class U.S. mail, postage prepaid, (iii) overnight
delivery service, charges prepaid, or (iv) telecopier, facsi~nile or other means of
electronic transmission if confirmed promptly by any of 1;he methods specified in
clauses (i), (ii), or (iii) of this paragraph to the parties at the following addresses:
If to Mortgagor:
Banzhoff, Banzhoff & Witkoski, II
245 N. 25t~ Street
Camp Hill; PA 17011
Telecopier No.
27
With a copy to:
Steven C. Wilds, Esquire
Wix, Wenger & Weidner
508 North Second Street
P.O. Box 846
Harrisburg, PA 17108.-0846
Telecopier No. (717) 234-4224
If to Mortgagee:
Community Banks, N.A.
150 Market Square
P. O. Box 350
Millersburg, PA 17061
Telecopier No. (717) 692-5014
With a copy to:
James A. Lqsh, Esquire
Metre, Evans & Woodside
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
Telecopier No. (717) 236-1816
or to such other address as either party may designate from time to time by notice to
the other in the manner set forth herein. All such notices and communications shall
be deemed to be given or made when delivered by personal service, two (2) days after
being deposited in the U.S. mail, or one (1) day after giwm to an overnight delivery
service, or upon confirmation of transmission when sent by telecopy or other means
of electronic transmission.
25.6. Covenant Running with the Lemd. Any act or agreement to
be done or performed by Mortgagor shall be construed as a covenant running with
the land and shall be binding upon Mortgagor and its successors and assigns as if
they had personally made such agreement.
25.7. Jurisdiction; Service of Process. Mortgagor hereby consents
to the jurisdiction of the courts of Pennsylvania and/or the United States District
Court for the Middle District of Pennsylvania in any and all actions or proceedings
arising hereunder or pursuant hereto, and irrevocably agTees to service of process by
F~EC ~,oo~ ~001 Pace 67-~96
28
certified mail, return receipt requested, to its address set forth herein or such other
address as Mortgagor may direct by notice to Mortgagee.
25.8. Captions. The captions preceding the text of the sections or
subsections of this Mortgage are inserted for convenience of reference only and shall
not constitute a part of this Mortgage, nor shall they in any way affect its meaning,
construction or effect.
25.9. Partial Invalidity. The invalidity or unenforceability of a
portion of this Mortgage will not affect the validity or enforceability of the remainder
hereof.
25.10. Maximum Interest. If Interest under this Mortgage or
under the Note should ever be in an amount that would -violate any applicable laws
against usury, then the interest shall be calculated so that it is the maximum allowed
by law and so that it does not violate such laws. If Mortgagee has collected any
amounts of interest which would exceed such usury limit, then Mortgagee shall apply
the excess collected to reduce the sums borrowed (principal) portion of the amounts
due under the Note.
25.11. Governing Law. This Mortgage shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
25.12. Modifications. Neither this Mortgage nor the Note nor
any other Loan Document shall be modified, amended or otherwise changed except
by agreement in writing between Mortgagee and Mortgagor.
26. Receipt of Document. Mortgagor hereby acknowledges receipt of a
true and correct copy of the Mortgage at no charge.
27. Defeasance. If Mortgagor shall and does pay to Mortgagee the full
principal s mount of the indebtedness secured hereby, together with all interest
accrued thereon, and keeps all the other covenants and agreements contained herein,
in the Note and in each of the other Loan Documents, all in the manner and at the
times set forth herein or in the Note, and ffMortgagor shail also pay all satisfaction
costs, including, but not limited to, reasonable attorneys' fees and the cost of
recording of a discharge of this Mortgage, then and from thenceforth this Mortgage
and the estate hereby created, granted, transferred and assigned shall cease and
become void.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be
duly executed and delivered on the date first above written.
MORTGAGOR:
REC ~ook ..~OO1 Pa~e 67297
Witness'
BANZHOFF, B~.JqZHOFF &
WITK~I, II, a
P~iage7~~nership
By: ~
Gordo/f~ K..,.~/~ L ner
By: ~f)rdon K. B~flzho , r., Partner
'v~lliam Wit]~oski, Partner
Book ~001 Poee 6?298
STATE OF FLORIDA
COUNTY OF ~-(
SS:
On this, the ~ day of April, 2001, before me a Notary Public, the
undersigned, personally appeared GORDON K. BANZHOFF, M.D., who
acknowledged himself to be a Partner of BANZHOFF, BANZHOFF & WITKOSKI, II,
a Pennsylvania general partnership, and being authorized as such partner executed
the foregoing document on behalf of the partnership for the purposes therein
contained.
IN WITNESS WHEREOF, I have ht lkeunto set my hand and official seal
the day and year aforesaid.
"'l~y Commission
(SEAL) ~' JENNIFER
COMMONWEALTH OF PENNSYLVANIA :
: SS:
COUNTY OF ~:~c~, ~
:
the~ day of April, 2001, before me a Notary Public, the
On this, K~v"
undersigned, personally appeared GORDON K. BANZHOFF, JR., who acknowledged
himself to be a Partner of BANZHOFF, BANZHOFF & ~iTKOSKI, II, a
Pennsylvania general partnership, and being authorized as such partner executed the
foregoing document on behalf of the partnership for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal
the day and year aforesaid.
NOTARIAL SEAL -
LISA R. ROWE, Notary Public
City of Harrisburg, Dauphin
J , My Commission Expires JulylZ,
otary Public
My Commission Expires:
(SEAL)
I~E,C: Book ~OOi P,,ee 472?9
COMMONWEALTH OF PENNSYLVANIA :
: SS:
COUNTY OF f~_~D~k~ :
On this, the \c~-~V~ay of April, 2001, before :me a Notary Public, the
undersigned, personally appeared WILLIAM WITKOSK[, who acknowledged himself
to be a Partner of BANZHOFF, BANZHOFF & WITKOSKI, II, a Pennsylvania
general partnership, and being authorized as such partner executed the foregoing
document on behalf of the partnership for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal
the day and year aforesaid.
NOTARIAL SEAL
LISA R. ROWE Notary Public
City of Harrisburg, Dauphin County
Notary Public
My Commission Expires:
(SEAL)
(ECDRDER DF DEEDS
LiJZERNE (:OUNTY
FENNSYLVANIA
ERNE COUNTY $73.00
{q(OlNG FEE
WRIT TAX $0.50
ERNE COUNTY $1.00
HIVES FEE
ERNE RECORDER'S $1.00
HIVES FEE
AL $75.50
~ecorder of Deeds Office of
Luzerne Count, Penn
s.ylvan~a
MARY K. DYSLESK~
RECORDER OF DEEDS
:256328 _1
EEC Book 3001 Pase 67300
EXHIBIT "A"
ALL THAT CERTAIN parcel of land situate in the Township of Lehman, County of Luzerne and
Commonwealth of Pennsylvania, as described on a Preliminary Plan for Chestnut Ridge Associates titled
Country Crest-Major Subdivision dated October 17, 1991 as prepared by Michael J. Pasonick, Jr., Inc.,
Consulting Engineers and Surveyors, more particularly bounded and d.escribed as follows, to wit:
BEGINNING at a point on the southerly right-of-way line of S.R. 29 at the point of its intersection with
the westerly right-of-way line of S.R. 4026; thence along the right-of-way line of S.R. 4026 South six
degrees twenty-nine minutes forty-one seconds West (S 06° 29' 41" W) a distance of eighty-six and
forty-five hundredths (86.45) feet to a point; thence continuing along same South nineteen degrees fifty-
one minutes West (S t 9° 51' W) a distance of one hundred sixty-eight and thirty-three hundredths
(168.33) feet to a point at line of lands now or formerly of Newberry (Deed Book 1597, Page 646); thence
along said lands now or formerly of Newberry the following three (3) courses and distances: 1) North
sixty-eight degrees thirty minutes forty-two seconds West (N 68° 30' 42" W) a distance of one hundred
fifty and zero hundredths (150.00) feet to a point; 2) South twenty~one degrees twenty-nine minutes
eighteen seconds West (S 21° 29' 18" W) a distance of one hundred and zero hundredths (100.00) feet to
a point; and 3) South sixty-eight degrees thirty minutes forty-two seconds East (S 68° 30' 42" E) a
distance of one hundred fifty and zero hundredths (150.00) feet to a point on the westerly right-of-way
line of S.R. 4026; thence along said right-of-way South twenty degrees forty-two minutes thirty-five
seconds West (S 20° 42' 35" W) a distance of three hundred twenty and seventeen hundredths (320.17)
feet to a point; thence continuing along same South twenty-three degrees sixteen minutes forty-nine
seconds West (S 23° 16' 49" W) a distance of ten and two tenths (10.2) feet to a point at line of lands now
or formerly of Verfin (Deed Book 1675, Page 485); thence along said lands now or formerly of Verfin the
following two (2) courses and distances: 1) North sixty-nine degrees twenty-two minutes eleven seconds
West (N 69° 22' 11" W) a distance of one hundred forty-nine and sixty-one hundredths (149.61) feet to a
point; and 2) South twenty degrees thirty-seven minutes forty-nine seconds West (S 20° 37' 49" W) a
distance of one hundred twenty-eight and eighty hundredths (128.80) t~et to a point at the northerly right-
of-way line of Township Road 684; thence along said right-of-way line North thirty-six degrees twenty-
five minutes eleven seconds West (N 36° 25' 11" W) a distance of two hundred twenty-two and seventy-
four hundredths (222.74) feet to a point at line of lands now or formerly of Kravableski; thence along said
lands now or formerly of Kravableski the following three (3) courses and distances: 1) North fifty-seven
degrees thirty-seven minutes forty-nine seconds East (N 57° 37' 49" E) a distance of one hundred sixty-
seven and zero hundredths (167.00) feet to a point; 2) North eight degrees twenty-three minutes eleven
seconds West (N 08° 23' 11" W) a distance of two hundred twenty-eight and seventy hundredths (228.70)
feet to a point; and 3) South fifty-seven degrees thirty-seven minutes fl>rty-nine seconds West (S 57° 37'
49" W) a distance of two hundred sixty and zero hundredths (260.00) feet to a point at the northerly right-
of-way line of Township Road 684; thence along said right-of-way linc: the following four (4) courses and
distances: I) North thirty-two degrees twenty-two minutes eleven seconds West (N 32° 22' 1 I" W) a
distance of two hundred sixty-four and thirty hundredths (264.30) feet to a point; 2) North twenty-six
degrees fifty-four minutes eleven seconds West (N 26° 54' i 1" W) a distance of seventy-six and fifty-five
hundredths (76.55) feet to a point; 3) North ten degrees twenty-six minutes eleven seconds West (N 10°
26' 1 i" W) a distance of seventy-six and fifty-five hundredths (76.55) feet to a point; and 4) North five
degrees thirty-three minutes twenty-seven seconds West (N 05° 33' 27" W) a distance of eighty-three and
six hundredths (83.06) feet to a point at line of lands now or formerly of the Most Reverend Klonows 'ki
(Deed Book 1585, Page 1140); thence along said lands now or formerly of Klonowski North fifty-seven
degrees fifty-one minutes East (N 57° 51' E) a distance of three hundred thirteen and sixty-nine
hundredths (313.69) feet to a point at lands now or formerly of Edward Strenfel; thence along said lands
~EC Book ~001 Pi~ge ,67301
now or formerly of Strenfel North sixty-five degrees thirty-three minutes East (N 65° 33' E) a distance of
thirty-five and zero hundredths (35.00) feet to a point at lands now or formerly of Radginski (Deed Book
2160, Page 54); thence along lands now or formerly of Radginski the following four (4) courses and
distances: 1) South thirty-six degrees twenty-seven minutes East (S 36° 27' E) a distance of three
hundred and zero hundredths (300.00) feet to a point; 2) North twenty-eight degrees eleven minutes
twenty-two seconds East (N 28* 11' 22" E) a distance of one hundred thirty-five and twenty-one
hundredths (135.21) feet to a point; 3) South fifty-eight degrees twelve minutes fifty-two seconds East (S
58* 12' 52" E) a distance of eighty-one and twenty hundredths (81.20) feet to a point; and 4) North
twenty-seven degrees twenty minutes thirty-seven seconds East (N 27° 20' 37" E) a distance of twenty-
eight and sixty-three hundredths (28.63) feet to a point at the southerly right-of-way line of S.R. 29;
thence along said right-of-way line the following three (3) courses and distances: 1) South fifty-four
degrees two minutes thirty-seven seconds East (S 54° 02' 37" E) a distance of ninety-one and thirty
hundredths (91.30) feet to a point; 2) South fifty-nine degrees fifty-eight minutes thirty-five seconds East
(S 59° 58' 35" E) a distance of eighty-six and twenty hundredths (86.:20) feet to a point; and 3) South
sixty-five degrees one minute twenty-six seconds East (S 65° 01' 26" E) a distance of eighty-six and
twenty hundredths (86.20) feet to a point at the westerly right-of-way line of S.R. 4026, the place of
BEGINNING.
BEING Lot No. 1 (1.003 acres), Lot No. 2 (1.031 acres), Lot No. 3 (12,967.3 square feet) and Lot No. 4
(7.260 acres) as shown on the Preliminary Plan referenced aforesaid.
BEING KNOWN AS Silkworth Mobile Home Park a/k/a Country Crest Mobile Home Park.
BEING TI-rE SAME PREMISES which Robert E. Goodling, an adult individual, by deed dated April
,2001 and intending to be recorded herewith in the Luzeme County Recorder of Deeds Office
granted and conveyed unto Banzhoff, Banzhoff & Witkoski, II, a Pennsylvania general partnership,
Mortgagor herein.
ix,' ¢F
OE~,T!F!ED PFiDPEPnTY t~ZNTIFIO,ATII~N NUMBER
M U NIC i PALITY.<~.~I~'~x. ~
TRANSFER DtVI~ION
M~lpping Cleck
ASSIGNMENT OF RENTS AND I,F. ASES
THIS ASSIGNMENT, made this !~ day of April, 2001 from
BANZHOFF, BANZHOFF & WITKOSKI, II, a general partnership organized and
existing under the laws of the Commonwealth of Pennsylvania, with an address of
245 N. 25~ Street, Camp Hill, PA 17011 (hereinafter referred to as "Assignor") to
COMMUNITY BANKS, N.A., a national banking association having offices located at
150 Market Square, Millersburg, PA 17061 ("Assignee").
WITNESSETH:
WHEREAS, Assignor is the owner of certain real estate located in
Lehman Township, Luzerne County, Pennsylvania, known as Country Crest mobile
home park more fully described on Exhibit "A" which is, attached to and made a part
of a certain Mortgage ("Mortgage") of even date herewith, to be recorded in the Office
of the Recorder of Deeds of Luzerne County, Pennsylvania, by and between Assignor
as Mortgagor and Assignee as Mortgagee (the "Premises"); and
WHEREAS, Assignor has executed and delivered to Assignee as
Borrower a certain Promissory Note in the aggregate principal amount of $600,000 of
of even date herewith (the "Note") together with all other documents executed by
the Borrower and delivered to the Assignee in connection with or securing the Note
(the "Loan Documents"); and
WHEREAS, Assignor is desirous of assigning to Assignee, as additional
security for the Note all rentals and other monies due and to become due to Assignor
as Lessor under any and all existing and future leases or subleases ("Leases") of the
Premises, any part thereof or any improvements now existing or hereafter
constructed thereon.
NOW, THEREFORE, in consideration of the making of the loans
evidenced by the Note, and in further consideration of the Premises, and intending to
be legally bound, Assignor hereby covenants, promises and agrees as follows:
l. Assignor hereby sells, assigns, transfers and sets over unto
Assignee, its successors and assigns, all of the rents, income receipts, revenues, issues
and profits now due or which may hereafter become due under the Leases or any
extensions or renewals thereof and any guaranties or security agreements which may
now or hereafter exist with respect to tenants' obligations under such leases, as well
as all monies due and to become due to Assignor under the Leases for services,
materials or installations supplied, whether or not the s~une were supplied under the
terms of the Leases and any sums to which Assignor may become entitled in any
court proceeding involving the bankruptcy, insolvency or reorganization of tenants
REC B~,o[: ~001 Pase 67124
and payments made in lieu of rent, together with any mhd all rights and remedies
which Assignor may have against the tenants under the Leases or others in
possession of the Premises or any part thereof for the collection or recovery of monies
so assigned, TO HAVE AND TO HOLD the s~me unto Assignee, its successors or
assigns, for the purposes herein recited.
2. Assignor hereby represents, warrants and agrees that:
(a) Assignor has the right, power and capacity to make this
Assignment and that no person, firm or corporation other than the Assignor
has any right, title or interest in or to monies due or to become due under the
Leases.
(b) Assignor will, at Assignor's cost and expense, perfo~m and
discharge all of the obligations and undertakings of the landlord under the
Leases. Assignor will enforce or secure the performance of each and every
obligation and undertaking of the tenant under the Leases and will appear in
and prosecute or defend any action or proceeding arising under or in any
manner connected with the Leases or the obligations and undertakings of the
tenants thereunder.
(c) Assignor will not, without Assignee"s prior written consent, (i)
pledge, transfer or mortgage or otherwise encumber or assign future payments
of rentals; (ii) waive, condone or in any manner release or discharge any of the
tenants under the Leases; (iii) disaffirm, cancel, terminate or consent to any
surrender of any of the Leases; (iv) modify, extend or in any way alter the
terms of any of the Leases so as to reduce or diminish or postpone the
payments of rentals and other sums due thereunder; or (v) accept any
payments of rentals in advance, other than as required to be paid in advance
by the terms of any rental agreement.
(d) Any default by Assignor in the performance of any obligation or
undertaking hereunder, which default remains uncured thirty (30) days after
prior written notice from Assignee to Assignor, shall constitute and be deemed
to be a default under the Note and the Mortgage so as to entitle Assignee to
exercise any and all of the rights and remedies thereunder, including the right
to declare all sums payable under the Note immediately due and payable
without notice or demand.
3. Nothing in this Assignment shall be deemed or construed to
constitute Assignee as a mortgagee in possession of the Premises, nor to obligate
Assignee to take any action hereunder or to incur expenses or perform or discharge
any obligation, duty or liability hereunder or under the Leases.
2
REC Bool~ 3001 P~e 67,_7,25
4. Until the Loan shall have been paid in full, Assignor will, for the
purposes hereof, transfer and assign to Assignee any and all further rentals and
monies due or to become due Assignor under the Leases upon all or any part of the
Premises; and Assignor will from time to time execute and deliver unto Assignee
upon demand any and all writings that Assignee may deem necessary or desirable to
carry out the purpose and intent hereof, or to enable A~signee to enforce any right or
rights hereunder.
5. This Assignment is present, absolute and unconditional and,
immediately upon the execution hereof, gives Assignee the right to collect the rents
and to apply them in payment of all sums payable under the Note or any other Loan
Document. Notwithstanding the foregoing, so long as there is no Event of Default
under the Note or any other Loan Document, Assignor shall have the license to
collect for its own account all rentals and other monies assigned hereunder. From
and after the occurrence of such a default (whether or not Assignee shall have
exercised its option to declare the Loan immediately due and payable), all rentals and
other monies assigned hereunder shall be paid directly to Assignee. Assignee may
notify the tenants under the Leases or any other parties in possession of the Premises
or any part thereof to pay all monies due and to become due to Assignor directly to
Assignee, for which this Assignment shall be sufficient warrant. Monies so paid to
Assignee shall be applied by Assignee, at its uncontrolled discretion, to the payment
of the costs and expenses of the operation of the Premises and to the payment of
current interest and/or principal due under the law, all in such order and in such
respective amounts as Assignee shall from time to time determine.
6. This Assignment is given for the purpose of securing performance
by Assignor of all of its obligations under the Note and accordingly, upon payment in
full of all indebtedness secured by the Note, and discharge of all of Assignor's other
obligations under the Note, as evidenced by the recording of an instrument of
satisfaction of the Mortgage (without the recording of another mortgage in favor of
Assignee affecting the Premises), this Assignment shall automatically become null
and void.
7. The failure of Assignee to avail itseJ~f of any of the terms,
covenants and conditions hereof shall not be construed or deemed to be a waiver of
any rights or remedies hereunder. Assignee shall have the full right, power and
authority to enforce this Assignment or any of the terms, covenants or conditions
hereof at any time or times that the Assignee shall deem fit.
8. All communications, notices, reque.,~ts, and demands required or
permitted by this Assignment or given pursuant to it shall be in writing, whether or
not a writing is expressly required hereby, and shall be given by: (i) personal service,
(ii) first class U.S. mail, postage prepaid, (iii) overnight delivery service, charges
prepaid, or (iv) telecopier, facsimile or other means of electronic transmission if
confirmed promptly by any of the methods specified in clauses (i), (ii), or (iii) of this
paragraph to the parties at the following addresses:
If to Assignor:
Banzhoff, Banzhoff & Witkoski, II
245 N. 25t" Street
Camp Hill, PA 17011
With a copy to:
Steven C. Wilds, Esquire
Wix, Wenger & Weidner
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
If to Assignee:
Community Banks, N.A.
150 Market Square
Millersburg, PA 17061
or to such other address as either party may designate fi'om time to time by notice to
the other in the manner set forth herein. All such notices and communications shall
be deemed to be have been given or made when delivered by personal service, two (2)
days after being deposited in the U.S. mail, or one (1) day after given to an overnight
delivery service, or upon confirmation of transmission when sent by telecopy or other
means of electronic transmission.
9. This Assignment shall be binding upon Assignor its successors
and assigns, and shall inure to the benefit of Assignee and its successors and assigns.
IN WITNESS WHEREOF, Assignor has duly executed this Assignment
the day and year first above written.
Witness
Gordon K. Banzt~, .~.Ds_(~enerai Partner
William Witkoski, General Partner
3001 Pa~e ~7328
STATE OF FLORIDA
COUNTY OF ,~r-
SS
On this, the~.~ day of April, 2001, before me, a Notary Public, the
undersigned officer, personally appeared GORDON K. BANZHOFF, M.D., an adult
individual, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that he executed the same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(SEAL) :
COMMONWEALTH OF PENNSYLVANIA
coUNTY OF
On this, the\~C'day of April, 2001, before :me, a Notary Public, the
undersigned officer, personally appeared GORDON K. BANZHOFF, JR., an adult
individual, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that he executed the same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set ~ny hand and official seal.
NOTARIAL SEAL
LISA R. ROWE Notary Public
City of Harrisburg. Dauphin County
M~/Commission Expires July12, 2007
Notary Public
My Comnfission Expires:
:256326 _1
REC Book ,7,001 Pose /,732?
(SEAL)
COMMONWEAL~ OF PENNSYLVANIA :
: SS
COUNTY OF
;
On this, th~CL~day of April, 2001, before me, a Notary Public, the
undersigned officer, personally appeared WILLIAM WITKOSKI, an adult individual,
known to me (or satisfactorily proven) to be the person whose name is subscribed to
the within instrument, and acknowledged that he executed the snme for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set :my hand and official seal.
i(kL:OKDER DF DEEDS
LUZERNE COUN'FY
PENNSYLVANIA
LNSTR~ENT NUMBER
RE~RDEO UN
.~ 02~ 2001
p~GE:d7324
Yo~ml Pa~es: ~
NOTARIAL SEAL
LISA R. ROWE, Notary Public
City of Harrisburg, Dauphin County.
. My Corem ssion Expires July12, ~00
Notary Public
My Comr~ission Expires:
(SEAL)
;ZERNE COUNTY $23,00
:ORDIN6 FEE
WRIT TAX SO.SO
;ZERNE COON1Y $1.00
~CHIVES FEE
~ERNE ~CDRDER'S $1,00
~CHIVES FEE
$25.~U
hereby CERTIFY that this
do~nt is r~rded in ~e
Reorder of Deeds 0~ of
Luzeme Count, Pennsylvania.
MARY K. DYSLES~
RECORDER OF DEEDS
REC Book ,.ACC1 P[~le 67330
:256326 _I
EXHIBIT "A"
ALL THAT CERTAIN parcel of land situate in the Township of Letmmn, County of Luzeme and
Commonwealth of Pennsylvania, as described on a Preliminary Plan for Chestnut Ridge Associates tiffed
Country Crest-Major Subdivision dated October 17, 1991 as prepared by Michael J. Pasonick, Jr., Inc.,
Consulting Engineers and Surveyors, more particularly bounded and described as follows, to wit:
BEGINNING at a point on the southerly right-of-way line of S.R. 29 at the point of its intersection with
the westerly righi-of-way line of S.R. 4026; thence along the right-of-way line of S.R. 4026 South six
degrees twenty-nine minutes forty-one seconds West (S 06° 29' 41" W') a distance of eighty-six and
forty-five hundredths (86.45) feet to a point; thence continuing along same South nineteen degrees fifty-
one minutes West (S 19° 51' W) a distance of one hundred sixty-eight and thirty-three hundredths
(168.33) feet to a point at line of lands now or formerly of Newberry (Deed Book 1597, Page 646); thence
along said lands now or formerly of Newberry the following three (3) courses and distances: l) North
sixty-eight degrees thirty minutes forty-two seconds West (N 68° 30' 42" W) a distance of one hundred
fifty and zero hundredths (150.00) feet to a point; 2) South twenty-one degrees twenty-nine minutes
eighteen seconds West (S 21° 29' 18" W) a distance of one hundred and zero hundredths (100.00) feet to
a point; and 3) South sixty-eight degrees thirty minutes forty-two seconds East (S 68" 30' 42" E) a
distance of one hundred fifty and zero hundredths (150.00) feet to a point on the westerly right-of-way
line of S.R. 4026; thence along said right-of-way South twenty degrees for~y-two minutes thirty-five
seconds West (S 20° 42' 35" W) a distance of three hundred twenty and seventeen hundredths (320.17)
feet to a point; thence continuing along same South twenty-three degrees sixteen minutes forty-nine
seconds West (S 23° 16' 49" W) a distance of ten and two tenths (10.2) feet to a point at line of lands now
or formerly of Verfin (Deed Book 1675, Page 485); thence along said lands now or formerly of Verfin the
following two (2) courses and distances: 1) North sixty-nine degrees twenty-two minutes eleven seconds
West (N 69° 22' 11" W) a distance of one hundred forty-nine and sixty-one hundredths (149.61) feet to a
point; and 2) South twenty degrees thirty-seven minutes forty-nine seconds West (S 20° 37' 49" W) a
distance of one hundred twenty-eight and eighty hundredths (128.80) f,,'et to a point at the northerly right-
of-way line of Township Road 684; thence along said right-of-way line: North thirty-six degrees twenty-
five minutes eleven seconds West (N 36° 25' 11" W) a distance of two hundred twenty-two and seventy-
four hundredths (222.74) feet to a point at line of lands now or formerly of Kravableski; thence along said
lands now or formerly of Kravableski the following three (3) courses and distances: 1) North fifty-seven
degrees thirty-seven minutes forty-nine seconds East (N 57o 37' 49" E) a distance of one hundred sixty-
seven and zero hundredths (167.00) feet to a point; 2) North eight degrees twenty-three minutes eleven
seconds West (N 08° 23' 11" W) a distance of two hundred twenty-eight and seventy hundredths (228.70)
feet to a point; and 3) South fifty-seven degrees thirty-seven minutes forty-nine seconds West (S 57° 37'
49" W) a distance of two hundred sixty and zero hundredths (260.00) feet to a point at the northerly right-
of-way line of Township Road 684; thence along said right-of-way line the following four (4) courses and
distances: 1) North thirty-two degrees twenty-two minutes eleven seconds West (N 32° 22' i 1" W) a
distance of two hundred sixty-four and thirty hundredths (264.30) feet ~:o a point; 2) North twenty-six
degrees fifty-four minutes eleven seconds West (N 26° 54' 11" W) a distance of seventy-six and fifty-five
hundredths (76.55) feet to a point; 3) North ten degrees twenty-six minutes eleven seconds West (N l0°
26' 11" W) a distance of seventy-six and fifty-five hundredths (76.55) :Feet to a point; and 4) North five
degrees thirty-three minutes twenty-seven seconds West (N 05° 33' 27" W) a distance of eighty-three and
six hundredths (83.06) feet to a point at line of lands now or formerly of the Most Reverend Klonowski
(Deed Book 1585, Page 1 i40); thence along said lands now or formerly of Klonowski North fifty-seven
degrees fifty-one minutes East (N 57° 51' E) a distance of three hundred thirteen and sixty-nine
hundredths (313.69) feet to a point at lands now or formerly of Edward Strenfel; thence along said lands
REC ~oo~ ..~OO1 Pa~ 673~tl
now or formerly of Strenfel North sixty-five degrees thirty-three minutes East (N 65° 33' E) a distance of
thirty-five and zero hundredths (35.00) feet to a point at lands now or formerly of Radginski (Deed Book
2160, Page 54); thence along lands now or formerly of Radginski the following four (4) courses and
distances: 1) South thirty-six degrees twanty-seven minutes East (S 36° 27' E) a distance of three
hundred and zero hundredths (300.00) feet to a point; 2) North twenty-eight degrees eleven minutes
twenty-two seconds East (bl 28° 11' 22" E) a distance of one hundred thirty-five and twenty-one
hundredths (135.21) feet to a point; 3) South fifty-eight degrees twelw; minutes fifty-two seconds East (S
58° 12' 52" E) a distance of eighty-one and twenty hundredths (81.20) feet to a point; and 4) North
~o twenty-seven degrees twenty minutes thirty-seven seconds East (bi 27° 20' 37" E? a dist~ce of twenty-
· ~ eight and sixty-three hundredths (28.63) feet to a point at the southerl3 right-of-way hne of S.R. 29,
thence along said right-of-way line the following three (3) courses and distances: 1) South fifty-four
degrees two minutes thirty-seven seconds East (S 54° 02' 37" E) a dis~:ance of ninety-one and thirty
~ hundredths (91.30) feet to a point; 2) South fifty-nine degrees fifty-eight minutes thirty-five seconds East
(S 59° 58' 35" E) a distance of eighty-six and twenty hundredths (86.2;0) feet to a point; and 3) South
sixty-five degrees one minute twenty-six seconds East (S 65° 01' 26" E) a distance of eighty-six and
twenty hundredths (86.20) feet to a point at the westerly right-of-way line of S.R. 4026, the place of
BEGINNING.
BEING Lot No. 1 (1.003 acres), Lot No. 2 (1.031 acres), Lot No. 3 (12,967.3 square feet) and Lot No. 4
(7.260 acres) as shown on the Preliminary Plan referenced aforesaid.
BEING KNOWN AS Silkworth Mobile Home Park a/k/a Country Cre:~t Mobile Home Park.
BEING TIlE SAME PREMISES which Robert E. Goodling, an adult individual, by deed dated April
,2001 and intending to be recorded herewith in the Luzeme County Recorder of Deeds Office
granted and conveyed unto Banzhoff, Banzhoff & Witkoski, 1I, a Pennsylvania general partnership,
Mortgagor herein.
May 15, 2002
Mr. GordonBanzhoff
Banzhoff, BanzhoffandWRkowski
245N. 25~ St.
Camp H itl, Pa. 17011
Dear Mr. Banzhoff:
On April 4, 2002 Community Banks demanded payment for the outstanding loans fi.om
the Banzhofl~ Baanzhoffand Witkowski partnership. Althongh some payments were
received for interest due and owing on the loans, we have not received any news on your
progress towards paying loan # 45011210 in full. Loan # 45;011211 is expected to be paid
fi.om the proceeds of the Penn Dot condemnation proceedings within 30 days. Unless we
receive some indication that refinancing or payment in full will be received for the
Country Crest MHP within 5 days, we will begin legal action to collect this amount from
the partnership and guarantors. Please call me prior to May 20, 2002 to inform me of
your progress.
Sincerely,
Raymond Granger
Special Assets
Robert E. Goodling
258 West Baltimore Street
Carlisle, PA 17013
(junior lien holder)
Ronald Strohl and/or
Current Occupant(s)
6 Country Crest Lane
Hunlock Creek, PA 18621
Charles Senkus and/or
Current Occupant(s)
8 Country Crest Lane
Hunlock Creek, PA 18621
Duncan Goss and/or
Current Occupant(s)
10 Country Crest Lane
Hunlock Creek, PA 18621
Jamie West and/or
Current Occupant(s)
15 Country Crest Lane
Hunlock Creek, PA 18621
Charles Smith and/or
Current Occupant(s)
17 Country Crest Lane
Hunlock Creek, PA 18621
Tracy Snyder and/or
Current Occupant(s)
26 Country Crest Lane
Hunlock Creek, PA 18621
Robert Hale and/or
Current Occupant(s)
30 Country Crest Lane
Hunlock Creek, PA 18621
Mr. and/or Ms. Evans and/or
Current Occupant(s)
47 Country Crest Lane
Hunlock Creek, PA 18621
Scott Karc]heski and/or
Current Occupant(s)
3 Country ,Crest Lane
Hunlock Creek, PA 18621
Linda Berry and/or
Current Occupant(s)
P. O. Box 227
Hunlock Creek, PA 18621
Carl Soudex and/or
Current Occupant(s)
P. O. Box 203
Hunlock Creek, PA 18621
Loft Martin and/or
Current Occupant(s)
14 Country Crest Lane
Hunlock Creek, PA 18621
Patrick Cavanaugh and/or
Current Occupant(s)
16 Counti3r Crest Lane
Hunlock Creek, PA 18621
Florence Gower and/or
Current Occupant(s)
21 Countt3~ Crest Lane
Hunlock Creek, PA 18621
Vincent McTaque and/or
Current Occupant(s)
23 Countt3~ Crest Lane
Hunlock Creek, PA 18621
Paula Martin and/or
Current Occupant(s)
45 Country Crest Lane
Hunlock Creek, PA 18621
Rita Snell and/or
Current Occupant(s)
42 Country Crest Lane
Hunlock Creek, PA 18621
Exhibit "E"
Barry Lathrop and/or
Current Occupant(s)
51 Country Crest Lane
Hunlock Creek, PA 18621
Frank Ide and/or
Current Occupant(s)
P. O. Box 194
Hunlock Creek, PA 18621
Eleanor Hontz and/or
Current Occupant(s)
50 Country Crest Lane
Hunlock Creek, PA 18621
Gerald Harowitz and/or
Current Occupant(s)
65 Country Crest Lane
Hunlock Creek, PA 18621
Kevin Barry and/or
Current Occupant(s)
69 Country Crest Lane
Hunlock Creek, PA 18621
John Gorka and/or
Current Occupant(s)
62 Country Crest Lane
Hunlock Creek, PA 18621
Cheryl Bender and/or
Current Occupant(s)
84 Country Crest Lane
Hunlock Creek, PA 18621
Mr./Ms. Bender and Mr./Ms. Brucker
and/or Current Occupant(s)
86 Country Crest Lane
Hunlock Creek, PA 18621
James Slabinski and/or
Current Occupant(s)
90 Country Crest Lane
Hunlock Creek, PA 18621
Eric Morgan and/or
Current Oc, cupant(s)
46 Country Crest Lane
Hunlock Creek, PA 18621
Sandra Cook and/or
Current Oc, cupant(s)
57 Country Crest Lane
Hunlock Creek, PA 18621
Mr. and/or Ms. Harris and/or
Current Occupant(s)
61 Counlxy Crest Lane
Hunlock Creek, PA 18621
Barbara Ettinger and/or
Current Occupant(s)
66 County Crest Lane
Hunlock Creek, PA 18621
John McElwee and/or
Current Occupant(s)
71 Country Crest Lane
Hunlock Creek, PA 18621
Mr./Ms. Harbinger and Mr./Ms. Finogle
and/or Current Occupant(s)
64 Coun~[ Crest Lane
Hunlock Creek, PA 18621
H. Alar and/or
Current Occupant(s)
68 Coun~t Crest Lane
Hunlock Creek, PA 18621
George Bartleson and/or
Current Occupant(s)
70 Cotm~t Crest Lane
Hunlock C. reek, PA 18621
Dave Harris and/or
Current Occupant(s)
1 Deer La. rte
Hunlock C. reek, PA 18621
Bernard Dick and/or
Current Occupant(s)
2 Deer Lane
Hunlock Creek, PA 18621
Mr./Ms May and Mr./Ms. Stonier
and/or Current Occupant(s)
7 Deer Lane
Hunlock Creek, PA 18621
Jack Pierce and/or
Current Occupant(s)
11 Deer Lane
Hunlock Creek, PA 18621
Robert Lamoreaux and/or
Current Occupant(s)
104 3~a Lane
Hunlock Creek, PA 18621
Kathi Mclntosh and/or
Current Occupant(s)
110 3ra Lane
Hunlock Creek, PA 18621
Current Occupant(s)
20 Country Crest Lane
Hunlock Creek, PA 18621
Current Occupant(s)
48 Country Crest Lane
Hunlock Creek, PA 18621
Current Occupant(s)
82 Country Crest Lane
Hunlock Creek, PA 18621
Current Occupant(s)
5 Deer Lane
Hunlock Creek, PA 18621
Current Occupant(s)
102 3rd Lane
Hunlock Creek, PA 18621
Jeanette Barsh and/or
Current Occupant(s)
3 Deer Lane
Hunlock Creek, PA 18621
Earl Whiteley and/or
Current Occupant(s)
6 Deer Lane
Hunlock Creek, PA 18621
Harold Wtfitemire and/or
Current Occupant(s)
12 Deer Lane
Hunlock Creek, PA 18621
Cindy Stucker and/or
Current Occupant(s)
106 34 I.mae
Hunlock C. reek, PA 18621
Robert Miller and/or
Current Occupant(s)
36 Country Crest Lane
Hunlock Creek, PA 18621
Current Occupant(s)
32 Coun~? Crest Lane
Hunlock C, reek, PA 18621
Current Occupant(s)
54 Coun~' Crest Lane
Hunlock Creek, PA 18621
Current Oecupant(s)
4 Deer Lane
Hunlock Creek, PA 18621
Current Occupant(s)
8 Deer Lane
Hunlock C, reek, PA 18621
Current Occupant(s)
34 Country Crest Lane
Hunlock Creek, PA 18621
Country Crest Mobile Home Park
Historical Income & Expense
12131/00
12,/31/99
12/31/98
Income
Rental Income
Water & Sewer Fees
Cash Discounts
Late Fees
Pet Fees
Other Income
Total Income
Expenses
Advertising
Court Costs
Management Fees
Insurance
Water & Sewer
Maintenance
Miscellaneous
Snow Removal
Eelctric
Real Estate Taxes
Total Expense
Net Operating Income
Proposed Annual Debt Service
Proposed Debt Coverage
Proposed Annual Debt Service - Seller Note
Proposed Aggregate Debt Service
Proposed Aggregate Debt Coverage
Average Income Per Pad Per Month
$134,019
$9,765
$o
$2,850
$o
$1,465
$148,099
$1,430
$480
$2,160
$1,264
$19,396
$2,364
$898
$1,975
$5,382
$4,977
$40,326
$107,773
$64,772
1.664
$6,999
$71,771
1.502
$217
$127,991
$o
-$9,69O
$1,200
$1,940
$2,519
$123,960
$2,759
$386
$6,543
$827
$21,088
$2,421
$798
$368
$5,833
$7,043
$48,066
$75,894
$64,772
1.172
$6,999
$71,771
1.057
$181
$116,966
$o
$o
$5,870
$2,320
$1,300
$126,456
$1,395
$o
$o
$679
$20,549
$8,938
$8,195
$o
$o
$6,824
$46,580
$79,876
$64,772
1.233
$6,999
$71,771
1.113
$185
Community.Banks
June 1'1~ 2003
Gordon Banzhoff
245 N. 25m Street
Camp Hill, Pa. 17011
RE: Country Crest Rents
Dear Mr. Banzhoff
I have been rece'nring numerous phone calls from tenants in t~he Country Crest Mobile
Home Park that they have received letters from you directing them to pay their rents to
you. As you know, the Bank exercised its rights under the Assignment of Leases and
Rents and have Property Management Inc. collecting and tracking rental payments. As
the owner of the park you may still pressure those delinquent accounts to pay but the
payments must go to PMI. I expect any rents that have been collected by you to be
forwarded to me immediately. Unless you halt this practice the Bank will take any action
available to it, whether ~t be civil, criminal or both.
~il~erely,
.
Special Assets
cc: Geoff Shuff, Esq.
Gordon Banzhofl} MD
Wil~imn Witkoski
P,O. Box 350 - Millersburg, PA 17061 - Phone 1-800-331-8362
COMMUNFrY BANKS,
f/k/a COMMUNITY BANKS, N.A.,
Plaintiff
VS.
GORDON K. BANZHOFF, M.D.,
GORDON K. BANZHOFF, JR., and
WILLIAM WITKOSKI, individually and
as partners t/d/b/a BANZHOFF, BANZHOFF
& WITKOSKI, ]~, a General Partnership,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLg2qD COUNTY, PENNSYLVANIA
DOCKET No.
CIVIL ACTION - EQLrfry DOCKET
PRELIMINARY INJUNCTION
PREVIOUSLY ASSIGNED TO: N/A
PETITION FOR PRELIMINARY INJUNCTION
Plaintiff, Community Banks, formerly known as Comm~mity Banks, N.A. (the "Bank"),
by and through its attorneys, Saidis, Shuff, Flower & Lindsay, petitions this Court for the
issuance of a preliminary injunction against the Defendant pursuant to Pa.R.C.P. No. 1531, upon
a cause of action as follows:
1. The name and address of the Plaintiffis Commumty Banks, formerly known as
Community Banks, N.A., 150 Market Square, P.O. Box 350, Millersburg, Pennsylvania 17061.
2. Defendant Gordon K. BanZhoff, M.D., is an adult individual and general partner
t/d/b/a Banzhoff, Banzhoff& Witkoski, II, a Pennsylvania genera:[ parmership, having a last known
address of 37 Tuscany Court, Camp Hill, Cumberland County, Pennsylvania 17011.
3. Defendant Gordon K. Banzhoff, Jr., is an adult individual and general partner t/d/b/a
Banzhoff, Banzhoff& Witkoski, Il, a Pennsylvania general partnership, having a last known
address of 245 North 25th Street, Camp Hill, Cumberland County, Pennsylvania 17011.
4. Defendant William Witkoski is an adult individual and general partner t/d/b/a
Banzhoff, Banzhoff & Witkoski, II, a Pennsylvania general parmership, having a last known
address of 417 Country Club Road, Camp Hill, Cumberland Cormty, Pennsylvania 17011.
5. Defendant Banzhoff, Banzhoff & Witkoski, II, is a Pennsylvania general
partnership having an address of 245 North 25th Street, Camp Hill, Cumberland County,
Pennsylvania 17011. Gordon K. Banzhoff, M.D., Gordon K. Bmazhoff, Jr., and William Witkoski,
individually and as general partners t/d/b/a Banzhoff, Banzhoff & Witkoski, 1I, a Pennsylvania
general parmership, are referred to collectively as the "Defendant" hereinafter.
6. As evidence of a loan extended by the Bank to the Defendant on April 13, 2001 (the
"Loan"), Defendant executed and delivered to the Bank a Promissory Note on that date in the
original principal amount of Six Hundred Thousand and 00/100 Dollars ($600,000.00) (the "Note").
A copy of the Note is attached hereto as Exhibit "A" and made a part hereof.
7. Contemporaneously with said Note, Defendant executed and delivered to the Bank a
mortgage (the "Mortgage") as security for the Loan, on that tract of land together with the buildings
and improvements erected thereon located in Lehman Township, Luzerne County, Pennsylvania,
known as Country Crest Mobile Home Park (the "Premises"), whJ!ch Mortgage was properly
recorded in the office of the Recorder of Deeds of Luzeme County in Book 3001, Page 67269. A
copy of the Mortgage, including a full and accurate description of the Premises, is attached hereto
as Exhibit "B" and made a part hereof.
8. Contemporaneously with said Note, Defendant executed and delivered to the
Bank an Assignment of Rents and Leases (the "Assignment of Rents") as additional security for
the Loan, which Assignment of Rents was properly recorded in the office of the Recorder of Deeds
of Luzeme County in Book 3001, Page 67324. A copy of the Assignment of Rents is attached
hereto as Exhibit "C" and made a part hereof.
9. Defendant is in default of Defendant's obligations to make payment to the Bank
as required in the Note, and the Bank has demanded payment in full of all outstanding amounts
as provided in the Note. A copy of Plaintiffs demand is attached hereto as Exhibit "D" and made
a part hereof.
10.
11.
Said default remains uncured thirty days after wu:itten notice to the Defendant.
The Defendant currently owes a principal balance of $571,489.64 plus interest
through June 27, 2003 in the amount of $31,055.62. Interest continues to accrue at the rate of
8.875%, or $140.89 per diem.
12. As a result of the uncured default, the Bank has the right, under both the Mortgage
and the Assignment of Rents, to collect the rents and to apply them in payment of all sums
payable under the Note.
13. On March 3, 2003, the Bank perfected its right to collect the rents by providing
notice to Defendant and to all tenants of the mortgaged premises, advising that all future rents
should be paid directly to the Bank as authorized under the Mortgage and the Assignment of
Rents. A list of the tenants and affected properties is attached hereto as Exhibit "E" and made a
part hereof.
14.
On June 17, 2002, the Bank confessed judgment by complaint, an action at law,
against Defendant Bahnzoff, Bahnzoff & Witkoski, II, a general partnership, in the amount of
$605,682.33, plus additional interest and costs from the date of the complaint, which action was
docketed in the Court of Common Pleas of Luzeme County, at number 1458-L-2002.
15. On April 21, 2003, a writ of execution and notice of sheriff's sale of the Premises
to take place on August 8, 2003 were issued upon the Defendant.
16. According to information previously provided by Defendant, the gross rentals on
the mortgaged property historically amotmt to approximately $12,000.00 per month. A copy of a
Historical Income and Expense Report for the Premises prepared by Defendant is attached hereto
as Exhibit "F" and made a part hereof.
17. The Bank has received numerous phone calls from tenants in the Cotmtry Crest
Mobile Home Park that they have received letters from Defendant, Gordon K. Bahnzoff, Jr.,
directing the tenants to remit rents to Defendant.
18. On June 11, 2003, the Bank demanded Defendant halt the practice of converting
rents and that it forward any rents collected to Bank immediately. A copy of the Bank's demand
is attached hereto as Exhibit "G" and made a part hereof.
Several tenants have expressed concern and confiasion over the conflicting
19.
instructions.
20.
Defendant.
21.
It is believed, and therefore averred, that tenants continue to pay rent directly to
Defendant has ceased to pay its debts in the ordinary course of business. 13 Pa.
C.S.A. § 1201 (general definitions: insolvent).
22. The Bank believes, and therefore avers, that Defendant cannot pay all of its debts
as they become due.
23. In view of the insolvency of the Defendant, the Bank believes, and therefore
avers, that it will be unable to collect from the Defendant any rents paid directly to Defendant.
24. No adequate remedy at law, whether by mortgage foreclosure, confession of
judgment, award of damages or otherwise, exists.
25. As a result of the above, unless the relief requested herein is granted, the Bank
will be severely, immediately, and irreparably harmed in a manner which cannot be compensated
by damages.
26. Greater injury would result from the denial of this preliminary injunction than
from the granting of it.
27. Granting the preliminary injunction would restore the parties to the status quo as it
existed prior to the wrongful conduct of the Defendant.
VqItEREFORE, Plaintiff, Community Banks, formerly known as Community Banks,
N.A., requests the following special relief and injunction against Defendant, Banzhoff, Banzhoff&
Witkoski, II, a Pennsylvania General Parmership, as follows:
a. That the Defendant be immediately enjoined from collecting, or attempting to
collect, any rents from the tenants of the Premises known as Country Crest Mobile Home
Park, Lehman Township, Pennsylvania, who are further described in Exhibit "E" of the
Plaintiff's Petition for Preliminary Injunction;
b. That all tenants of the Premises at Country Crest Mobile Home Park, Lehman
Township, Pennsylvania, be directed to refrain from paying any rents to Defendant and
directed instead to pay their rents to Plaintiff, Community Banks, its agents, successors or
assigns, as the Plaintiffmay in writing direct; and
c. That the Defendant be enjoined from doing an:? act to interfere with Plaintiffs
collection of the rents.
d. That the Defendant he directed to account for and turn over to Plaintiff any rents
Date:
paid directly to Defendant or it agent subsequent to March 3, 2003 within twenty days of
service, in accordance with the procedures ofPa. R.C.P. No. 1530;
If determined by the Court to be necessary, that the Plaintiff be directed to file a
bond;
f.
g.
That a preliminaW heating be scheduled on tiffs matter; and
The injunction be continued in full force and effect until further order of this
Court, upon a finding that there is no restraint regarding t~eedom of expression and that
adequate cause and protection exist to extend said injunction beyond five days until a
preliminaW heating can be held.
Respectfully submitted,
SAIDI~'~. LINDSAY
By: Mla]tt~ e'~w !. ~ (~!tER~
Eshll!an, Esquire ID #72655
Geoffrey S. Shuff, Esquire ID #24848
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attomeys for Plaintiff; Community Banks
COMMUNYI"'t" BANKS,
f/k/a COMMUNITY BANKS, N.A,,
Plaintiff
GORDON K. BANZHOFF, M.D.,
GORDON K. 'BANZYIOFF, JR., and
'WII' .T.I.~M WITKO,~i~I~ individua!ly and
as part~r,~ t/d/h/a BANZHOFF, BANT/-IOFF
& WITKOSK!i, IL a General Par~ership,
Defendants
: 1N TIlE COURT OF COMMON PL/,:AS OF
: CLIMBE~ CO(JNTY~ PENNSYINANIA
DOCKET No
CIV]~ ACTION EQUITY DOCKET
PRELIMINARY iNJUNCTION
PREVIOUSLY ASSIGNED TO: N/A
VERIFICATION
I, Ra~nond {Manger, Vice President, Special Assets, for Community Banks, formerly
known as Conmaunity Banks, N.A., being authorized to do so tm behalf of Community Banks,
hereby verit~ that th, statements made in the ibregning pleading mc mJe and correct to the best of
my information, kmowledge and belief. I undemand that fa.[qc statetnenm herein are made suhjcc~
to the penalti¢:s of 18 Pa. C.S. Section 4904, rolati~tg to unswom falsification to authorities.
COMMUNITY B ANI~L~
Vice Presidenl, Spccia. Assets
PROMISSORY NOTE
$600,000
April [fl ,2001
Harrisburg, PA
For value received and intending to be legally bound, BANZHOFF,
BANZHOFF & WITKOSKI, II, a general partnership ("Maker"), having a place of
business at 245 N. 25m Street, Camp Hill, PA 17011, promises to pay to the
order of COMMUNITY BANKS, N.A., a national banking association (hereinafter
called "Payee"), at 150 Market Square, P. O. Box 35(I, Millersburg,
Pennsylvania 17061, or such other place as Payee may designate in writing,
the principal sum of Six Hundred Thousand ($600,000) Dollars lawful money
of the United States of America together with interest on the outstanding
principal balance hereof as set forth below.
The proceeds of the loan will be utilized by the Maker to finance
the acquisition of a mobile home part known as Country Crest located in
Lehman Township, Luzeme County, Pennsylvania, more fully described in a
certain Mortgage by and between Mortgagor and Payee as Mortgagee, which
shall be recorded in the Office of the Recorder of Deeds of Luzeme County. The
loan is evidenced by this Note which is executed pursuant to the tel'ms of a
commitment letter of the Payee to the Maker dated March 19, 2001, the terms
and conditions of which are incorporated herein by reference.
The Note shall be payable as follows:
(a) Consecutive monthly installments (each a "Scheduled Monthly
Inst~llment") in the initial amount of Five Thousand 'IT~ree Hundred Ninety
Seven Dollars and Sixty-Nine Cents ($5,397.69) which shall be applied/h'st to
interest accrued on the outstanding principal balance hereof at the Applicable
Rate of Interest, as hereunder defmed, and then to the reduction of the
principal balance thereof. The first Scheduled Monthly Interest Installment
shall be due and payable on the date which is thirty [30) days after the date
hereof. Scheduled Monthly Installments shall continue to be due and payable
Bxhibit 'W'
on the same day of each month thereafter until that date which is sixty (60)
months after the date of this Note (the "Conversion ]Date").
(b) On the Conversion Date, the then p:rincipal balance of this Note
shall bear interest at the Applicable Rate of Interest then in effect. From the
Conversion Date to and including the Maturity Date (as hereinafter defined) the
aggregate principal balance together with interest at: the Applicable Rate shall
be due and payable in consecutive monthly installments (a "Scheduled Monthly
Installment"). Scheduled Monthly Installments shall be applied first to interest
accrued on the outstanding principal balance hereof at the Applicable Rate of
Interest then in effect and then to the reduction of the principal balance hereof.
The first Scheduled Monthly Installment shall be due and payable on the date
which is thirty (30) days after the Conversion Date. Scheduled Monthly
Installments may be adjusted to reflect any interest rate changes in the
Applicable Rate of Interest to maintain amortization of the loan repayment
within a fifteen (15) year amortization period. Sch~;duled Monthly
Installments shall continue to be due and payable o:n the same day of each
month thereafter until April I~1 , 2021 (the "Maturity Date"). On the Maturity
Date a final installment shall be due and payable which shall include all
unpaid amounts of the principal balance and intere,,~t accrued and unpaid
thereon and any and all other payments or amounts due under this Note, or
any other Loan Document as hereinbefore defined herein.
The Applicable Rate of Interest shall be :axed at Eight and Eight
Hundred Seventy Five Thousandths (8.875%) percent per annum for a period of
sixty (60) months from the date of this Note. Thereafter, the Applicable Rate of
Interest shall either be (i) in the sole discretion of Payee, a fixed rate of interest;
or (ii) in the event Maker declines the fixed rate (ff arty) available on the
Conversion Date or ff Payee declines to offer Maker a fixed rate, that rate of
interest which is at all times equal to the Commerci~d Prime Rate of
Community Banks, N.A. as hereinafter defined in effect at that time and
thereafter in effect from time to time plus One (1%) Percent. The Applicable
Rate of Interest shall change on the day On which any change in said
Community Banks, N.A.'s Commercial Prime Rate shafl become effective.
When the Commercial Prime Rate of Community Bm~aks, N.A. changes on a day
other than the first day of a calendar month, interes~L for the month in which
such change or changes are made shall be calculated on a per diem basis with
the various Prime Rates in effect for that month. Interest hereunder shall be
calculated on the basis of a 360 day year.
The te~m "Commercial Prime Rate of Commtmity Banks, N.A." as
used herein shall mean the rate which the Payee establishes as "the
Commercial Prime Rate of Community Banks, N.A." whether or not published.
The utilization of "Prime Rate" herein is solely for the purpose of defining the
rate of interest applicable hereunder. Its utilization shall in no way preclude or
limit the Payee from lending to certain borrowers, from time to time, at a rate of
interest less than the "Prime Rate" as defmed hereunder.
If any installment of principal and/or interest under this Note or
any other sum due under any other Loan Document (as hereinafter defined) is
not paid within fifteen (15) days after it is due on its due date or if the Maker
fails to pay the entire principal balance, together with interest accrued thereon,
and all other sums due under this Note or any other Loan Document on the
Maturity Date as defined herein, interest shall be due on such overdue amount
{including overdue interest) from its due date to the: date on which it is paid at
the rate of two percent (2%) per annum above the Applicable Rate but not more
than the highest rate permitted by law (the "Default Rate"). Such interest at
the Default Rate shall (in addition to all other interest) be due on each payment
date and on the date on which the overdue amount is paid. Interest at the
Default Rate shall be due on ail interest from the date on which it is due until
the date on which it is paid and any interest which is not paid at maturity
(whether stated or accelerated) shall be added to the principal balance of this
Note on the Maturity Date.
Any prepayment of principal shall be applied against the
installment of principal (by date) last due and payable. No prepayment shall
postpone or interrupt payment of future inst~llraents of principal and interest
which shall continue to be due and payable until pa,frnent herein in full.
In the event any of the aforesaid pa,fments of interest and/or
principal remain unpaid fifteen (15) days after such payments are due, Maker
shall pay a delinquency charge of five percent (5%) of the amount so overdue to
3
cover the extra expense involved in handling delinquent payments. Provisions
for such delinquency charge shall not be construed to pem~it Maker to make
any payment after its due date, obligate Payee to accept any overdue
installment, or affect Payee's rights and remedies upon default.
Maker shall not be obligated to pay ;md Payee shall not collect
interest at a rate in excess of the maximum permitted by law or the maximum
that will not subject Payee to any civil or criminal penalties. If, because of the
acceleration of maturity, the payment of interest in advance or any other
reason, Maker is required, under the provisions of any Loan Document, to pay
interest at a rate in excess of such maximum rate, the rate of interest under
such provisions shall immediately and automatically be reduced to such
maximum rate, and any payment made in excess of such maximum rate,
together with interest thereon at the rate provided herein from the date of such
payment, shall be immediately and automatically applied to the reduction of
the unpaid principal balance of this Note as of the date on which such excess
payment was made. If the amount to be so applied to reduction of the unpaid
principal balance exceeds the unpaid principal balance, the amount of such
excess shall be refunded by Payee to Maker.
This Note is secured by and entitled to all of the benefits of (i) a
Mortgage (the "Mortgage") of even date herewith from Maker as Mortgagor to
Payee as Mortgagee of Maker's interest in certain real property described
therein situate in Lehman Township, Luzerne County, Pennsylvania, together
with the additional collateral described therein (the "Mortgaged Premises"); (il)
the Guaranty and Surety Agreement of Gordon K. Banzhoff, M.D., Gordon K.
Banzhoff, Jr. and William Witkoski (the "Guarantors"); (iii) an Assignment of
Rents and Leases (the "Assigmnent of Leases") affecting the Mortgaged
Premises; and (iv) all additional security set forth in the Commitment Letter,
this Note, and the documents described in (i) - (iv) above, and any other
documents executed by Maker or any Guarantor and delivered to Payee in
connection with this Loan are collectively referred to herein as the "Loan
Documents"). Reference is made to the Loan Docu:ments for a description of
the properties and collateral mortgaged, secured mad pledged as security for
this Note, the nature and extent thereof, the rights of the holder of this Note
and the Maker and the Guarantors in respect of such security and otherwise,
and the temps upon which this Note is issued. ,M1 of the terms, covenants,
agreements, conditions, warranties and provisions contained in the Loan
Documents are hereby incorporated into this Note with the same force and
effect as ff they were fully set forth herein. Maker covenants and agrees to
comply with and perfoim all such provisions, or cause them to be complied
with and performed, str/ctly in accordance with their temps.
For purposes of this Note "Collateral Security" means any and all
goods, chattels, inventory, equipment, securities, deposits, accounts receivable,
notes, documents, instruments, money, safe deposit box contents, and other
property of Maker of whatever kind or nature whic. h may now or hereafter be
deposited with or in the possession or control of Payee. Maker hereby pledges
the Collateral Security as security for the payment of this Note and agrees that,
in the Event of a Default under this Note, Payee may set off any of the
Collateral Security against any amount due hereunder or apply any other
Collateral Security or other proceeds of the Collateral Security to any amount
due under this Note or under any other Loan Document.
"Default" under this Note shall mean any Event of Default (as
hereinafter defined) and any event which with the passage of th-ne or the giving
of notice, or both, would become an Event of Default.
Upon default (as hereinbefore defined) Payee may collect any late
charges, interest on overdue amounts at the Default Rate and any damages or
loss to Payee by reason of the default (including consequential damages) and
may set off the Collateral Security against or apply it to any sum due under
this Note or any other Loan Document.
Each of the following events shall constitute an "Event of Default"
under this Note, subject to any applicable notice and grace period as set forth
herein or therein: (a) Maker fails to make any payment of principal or interest
or any other sum required to be made under this Note or any other Loan
Document, and such payment is not made within frfl:een (15) days after its due
date; (b) there occurs an Event of Default as defined in any other Loan
Document; (c) any Maker or Guarantor becomes insolvent or makes an
assignment for the benefit of creditors; (d) (i) a Court shall enter a decree or
5
order for relief in respect of any Maker or Guarm~tor in an involuntary case
under the Federal Bankruptcy Code or any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of any
Maker or Guarantor or for any of the property of any Maker, ordering the
winding up or liquidation of his/her/its/their affairs, and such decree or order
shall remain unstayed and in effect for a period of sixty (60) days; or (ii) any
Maker or Guarantor shall commence an action in bankruptcy, insolvency, or
under any other similar law now or hereinafter in effect, or shah consent to the
entry of an order for relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or similar official) of any Maker or
Guarantor or for any part of his/her/its/their property; (e) failure by the
Maker to observe or perform any other covenant, agreement, condition or term
of this Note not otherwise specifically enumerated as an Event of Default which
remains uncured thirty (30) days after written notice thereof by Payee provided
that ff such failure cannot be reasonably cured within such thirty (30) day
period as aforesaid and ff Maker has diligently atterapted to cure the same and
thereafter continues diligently to cure the same, then the cure period provided
for herein may be extended up to a date set by Payee; (f) breach by Maker of
any other obligation to the Payee subject to any applicable notice and/or grace
period: (g) any representation or warranty in any financial or other statements,
schedule, certificate or other document of any Maker or Guarantor delivered to
Payee by or on behalf of any Maker or Guarantor shall prove to be false,
misleading, or incomplete in any material respect when made; (h) a material
adverse change occurs in the financial condition of ~my Maker or Guarantor; (i)
any Maker or Guarantor assigns or otherwise transfisrs or attempts to assign or
transfer any interest m the Mortgaged Prermses {except as^provided in the
Mortgages); or (j) Maker or any Guarantor defaults under the terms of any
other obligation of Maker or Guarantor to Payee. r
At any time after occurrence of an Event of Default, Payee may, at
Payee's option and without notice or demand, do any one or more of the
following:
(a) without declaring the unpaid principal balance to be due,
collect all inst~llments of principal and/or interest (at the then applicable
rate provided above to the date on which a de:fault occurs and, thereafter,
at the Default Rate) and all other sums due under this Note or any other
Loan Document from time to time, by any action provided in this Note or
any other Loan Document or provided at law or in equity;
(b) declare the entire unpaid princ:ipal balance of this Note,
together with interest accrued thereon (at: the then applicable rate
provided above to the date on which a default occurs and, thereafter, at
the Default Rate) and all other sums due from Maker under this Note or
any other Loan Document to be due and payable immediately; and/or
(c) exercise any other right or remedy as may be provided in this
Note or any other Loan Document or provided at law or in equity.
Payment of all or any part of the Indebtedness (as defined below)
may be recovered at any time by any one or more of the foregoing remedies.
Whether or not the entire unpaid principal balance is declared to
be due, the interest rate on the unpaid principal balance shall be the Default
Rate from the date on which a default occurs until the date on which all
defaults are cured or the entire unpaid principal balance and all other sums
due under this Note or any other Loan Document (collectively, the
"Indebtedness") are actually received by Payee. Upon the entry of any
judgment after default, interest shall continue to accrue at the Default Rate on
the judgment amount from the date of judgment until actual receipt of the
entire Indebtedness by Payee, including any period after a Sheriffs Sale of the
Mortgaged Premises.
In any action under this Note or any other Loan Document, Payee
may recover all costs of suit and other expenses in cormection with the action,
including the cost of any title search and reasonable attorneys fees, paid or
incurred by Payee.
The rights and remedies provided to Payee in this Note and the
other Loan Documents, including all warrants of attorney, (a) are not exclusive
7
and are in addition to any other rights and remedies Payee may have at law or
in equity, (b) shall be cumulative and concurrent, (c) may be pursued singly,
successively or together against Maker, any of the Mortgaged Premises, any of
the Collateral Security and/or any other security at the commercially
reasonable discretion of Payee, and (d) may be exercised as often as occasion
therefor shall arise. The failure to exercise or dcqay in exercising any such
right or remedy shall not be construed as a waiver or release thereof.
Maker hereby waives and releases Payee and its attorneys from all
errors, defects and imperfections (of a procedural nature) in any proceeding
instituted or maintained by Payee under this Note or any other Loan
Document. Maker hereby, to the extent not prohibited by law, waives all
benefit of any and all present and future statutes of limitations and
moratorium laws and any and all present and future laws which (a) exempt all
or any part of the Mortgaged Premises, the Collateral Security or any other real
or personal property or any part of the proceeds of any sale of any such
property from attachment, levy, foreclosure or sale under execution, (b) provide
for any stay of execution, marshaling of assets, exemption from civil process,
redemption, extension of time for payment, or valuation or appraisement of all
or any part of the Mortgaged Premises, the Collateral Security or any other real
or personal property, or (c) conflict with any provision of this Note or any other
Loan Document. Maker agrees that the Mortgaged Premises, the Collateral
Security and any other real or personal property may be sold to satisfy any
judgment entered under this Note or any other Loam Document in whole or in
part and in any order as may be desired by Payee.
Except as otherwise provided herein, Maker and all endorsers,
sureties and guarantors, jointly and severally: (a) waive presentment for
payment, demand, notice of demand, notice of nonpayment or dishonor,
protest and notice of protest of this Note, and all other notices (not expressly
provided for in this Note) in cormection with the delivery, acceptance,
perfom~ance, default, or enforcement of the payment of this Note; (b) agree that
the liability of each of them shall be unconditic,nal without regard to the
liability of any other party and shall not be affected in any manner by any
indulgence, extension of time, renewal, waiver or modification granted or
consented to by Payee at any time; (c) consent to any and all indulgences,
extensions of time, renewals, waivers or modifications granted or consented to
by Payee at any time; (d) consent to the release of all or any part of or interest
in the Mortgaged Premises or the Collateral Security or any other collateral
described in any Loan Document, with or without substitution; and (e) agree
that additional makers, endorsers, guarantors or sureties may become parties
to this Note or any other Loan Document without notice to them or affecting
their liability under this Note or any other Loan Document.
Payee shall not be deemed, by any act of omission or commission,
to have waived any of its rights or remedies hereuncler unless such waiver is in
writing and signed by Payee. Such a written waiver signed by Payee shall
waive Payee's rights and remedies only to the extent specifically stated in such
written waiver. A waiver as to one or more particular events or defaults shall
not be construed as continuing or as a bar to or waiver of any right or remedy
as to another or subsequent event or default.
Maker shall pay the cost of any revenue, tax or other stamps now
or hereafter required by law to be affixed to this Note. Maker shall pay any and
all taxes imposed upon Payee by reason of this Note or the ownership or
possession of this Note, including personal property taxes, but excluding any
income taxes imposed by reason of interest received by Payee under this Note,
and shall reimburse Payee for the amount any such taxes paid by Payee. If
Maker fails or refuses or is not legally permitted to make such payment or
reimbursement, Payee, may, at its option, declare the Indebtedness to be
mediately due and payable, whereupon Maker shall immediately pay such
principal and other sums to Payee.
If Maker or any Guarantor shall, without in each instance the prior
written consent of Payee, sell, transfer, convey, mc,rtgage, encumber, lease or
otherwise alienate all of any part of the Mortgaged Premises or any interest
therein (except as permitted by the Mortgage or Assignment of Leases), whether
voluntarily or by operation of law, then Payee may, at its sole option, declare
the Indebtedness to be immediately due and pa:~able, whereupon all such
principal and other sums shall be immediately due and payable.
Notwithstanding anything to the contrary, the sale or transfer of William
Witkoski's partnership interest in Maker shall not be deemed to constitute a
transfer of the Mortgaged Premises.
Payee shall not be construed for any purpose to be a partner, joint
venturer or associate of Maker or of any lessee, operator, concessionaire or
licensee of Maker or of any of the Mortgaged Premises by reason of this Note or
any of the Loan Documents or of any action by Payee pursuant to any
provision of this Note or any other Loan Document.
Time is of the essence of each and every provision of this Note.
The words "Payee" and "Maker" shall :include the respective heirs,
distributees, personal representatives, successors and assigns of Payee and
Maker, respectively. The provisions of this Note shall bind and inure to the
benefit of Payee and Maker and their respective ]~eirs, distributees, personal
representatives, successors and assigns provided that the provisions of this
paragraph are subject to all the other provisions of this Note and the other
Loan Documents, including the above due-on-sale clause.
If there is more than one Maker, the liability of each shall be joint
and several.
As to all pronouns and other terms in this Note, the singular shall
include the plural and vice versa and any gender shall include the other two
genders, as the context may require.
The phrase "any of the Mortgaged Premises" shall mean "all or any
part of any of the Mortgaged Premises or any interest therein." The phrase
"any of the Collateral Security" shall mean "all or any part of the Collateral
Security or any interest therein."
This Note may be modified, amended, discharged or waived only by
an agreement in writing signed by the party against whom enforcement of any
such modification, amendment, discharge or waiver is sought.
This Note shall be governed by and construed according to the
laws of the Commonwealth of Pennsylvania.
l0
All notices, requests, demands and other cornmunications given
pursuant to any provision of this Note shall be given in writing by U.S. certified
or registered mail with return receipt requested and postage prepaid, or by any
24-hour courier service with proof of delivery, addressed to the party for which
it is intended at the address of that party first stated above or such other
address of which that party shall have given notice in the manner provided
herein. Any such marl notice shall be deemed to have been given when the
notice is deposited in the mail. Any such courier notice shall be deemed to
have been given on the following business day.
UPON AN EVENT OF DEFAULT BY MAKER, MAKER HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR
ATYORNEYS OR THE PROTHONOTARY OR CLERK OF ANY COURT OF
RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR IN ANY OTHER
JURISDICTION WHICH PERMITS THE ENTt~'.Y OF JUDGMENT BY
CONFESSION, UPON DEFAULT AS HEREIN DEFINED, TO APPEAR FOR ANY
OR ALL MAKER IN SUCH COURT IN AN APPROPRIATE ACTION THERE
BROUGHT OR TO BE BROUGHT AGAINST MAKER AT THE SUIT OF PAYEE
ON THIS NOTE, WITH OR WITHOUT COMPLAINT OR DECLARATION FILED,
AS OF ANY TERM OR TIME, AND THEREIN TO CONFESS OR ENTER
JUDGMENT AGAINST MAKER FOR ALL SUMS DUE BY MAKER TO PAYEE
UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS (WITH OR
WITHOUT ACCELERATION OF MATURITY), INCLUDING ALL COSTS AND
REASONABLE ATTORNEYS' FEES. FOR SO DOING THIS NOTE OR A COPY
HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE
AUTHORITY TO CONFESS JUDGMENT GRANTED HEREIN SHALL NOT BE
EXHAUSTED BY ANY EXERCISE THEREOF BUT MAY BE EXERCISED FROM
TIME TO TIME AND AT ANY TIME AS OF ANY TERM AND FOR ANY AMOUNT
AUTHORIZED HEREIN. MAKER EXPRESSLY AUTHORIZES THE ENTRY OF
REPEATED JUDGMENTS UNDER THIS PARAGRAPH NOTWITHSTANDING ANY
PRIOR ENTRY OF JUDGMENT IN THE SAME OR ANY OTHER COURT FOR
THE SAME OBLIGATION OR ANY PART THEREOF.
MAKER ACKNOWLEDGES THAT IT HAS, BEEN REPRESENTED BY
COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS
NOTE; AND MAKER WAIVES ANY RIGHT TO NOTICE OR A HEARING WHICH
IT MIGHT OTHERWISE HAVE BEFORE ENTRY OF JUDGMENT.
IN WITNESS WHEREOF, Maker has caused this Note to be
executed the [qJ~ day of April, 2001.
Witness
William Witkoski, Partner
12
MORTGAGE
Securing a Term Loan in the
Principal Amount of
$600,000.00
THIS MORTGAGE (the "Mortgage") made this [~ ~ day of April, 2001
by and between BANZHOFF, BANZHOFF & WITKOSKI, II, a Pennsylvania general
partnership, having an address of 245 N. 25TM Street, Camp Hill, PA 17011
(hereinafter referred to as the "Mortgagor") and COMMUNITY BANKS, N.A., a
national banking association having offices located at 150 Market Square, P. O. Box
350, Millersburg, PA 17061 (hereinafter referred to as "Mortgagee").
BACKGROUND
A. Mortgagor is the owner in fee simple of the real property hereby
mortgaged, which real property is more fully described on Exhibit "A" attached hereto
and made a part hereof.
B. Mortgagor has executed and delivered to Mortgagee a Promissory
Note of even date herewith, each of which is made payable to Mortgagee, in the
principal amount of Six Hundred Thousand Dollars ($600,000) (the "Note"), with
interest thereon payable at the rate and times, in the manner and according to the
terms and conditions specified therein, all of which are incorporated herein by
reference. The Note evidences the Mortgagor's obligation to repay among other
things the principal amount to be advanced by the Mortgagee to the Mortgagor to
acquire a mobile home part located in Lehman Township, Luzerne County,
Pennsylvania, more fully described on Exhibit "A" (the ':'Mortgaged Premises") and
to refinance existing indebtedness of the Mortgagor and to provide capital for an
investment in the Mortgaged Premises described on Exhibit "A".
C. As security for the obligations of Mortgagor as Maker under the Note
and as security for all other sums provided for in this Mortgage and as security for
the repayment of all sums advanced or to be advanced m~der the Note, Mortgagee has
required Mortgagor, and Mortgagor has agreed, to execute and deliver this Mortgage.
The Note, this Mortgage, and any other documents executed by Mortgagor and/or
any guarantor and delivered to Mortgagee in connection with the Note or given as
security for the Note or the obligations of Mortgagor (including any restructuring,
refinancing, extension or modification thereof) are sometimes referred to herein
collectively as the "Loan Documents" or individually as a "Loan Doc~ment." The
teems and conditions of the Loan Documents are hereby incorporated into this
Mortgage by reference.
REC Book ~lElO1 F'~e 67269
CONVEYANCE
NOW, THEREFORE, Mortgagor, in consicieration of the premises
recited above and the indebtedness evidenced by the Note and the other Loan
Documents, and for better securing payment of the same, with interest and in
accordance with their respective terms and conditions, together with all other sums
recoverable by Mortgagee under the terms of the Loan Documents and for the
performance of the agreements and covenants, contained herein and therein, does
hereby grant, assign, and convey unto Mortgagee, its successors and assigns, all of the
following real and personal property and property interests (together, the real and
personal property and the property interests described in subparagraphs (1) through
(6) below, inclusive, shall constitute the '~VIortgaged Premises"):
1. All of Mortgagor's right, title and interest in and to the real property
depicted as Country Crest Mobile Home Park, Lehman Township, Luzerne County,
Pennsylvania, recorded in the Office of the Recorder of Deeds of Luzerne Cc~unty,
Pennsylvania, in Deed Book ~. ~ ., Page~ ~,~ and more particularly described on
Exhibit "A" attached hereto and made a part hereof (the "Real Estate");
2. All buildings and improvements existing or hereafter erected on the
Real Estate (the "Improvements");
3. All f~xtures, machinery, equipment, supplies, tools, appliances,
accessories and other articles of property of any nature whatsoever, whether real
estate or not, owned by Mortgagor, now or at any time hereafter installed in,
attached to or situated in or upon, or used or intended to be used in connection with
or in the operation or maintenance of the Real Estate or the Improvements, or in the
operation of any buildings, improvements, plant or business now or hereafter situate
thereon, which shall include, but not be limited to, all lighting, heating, ventilating,
air conditioning, sprinkling and plumbing fmtures and systems, irrigating, water and
power systems and f~xtures, engines and machinery, boilers, ranges, furnaces, oil
burners or units thereof, elevators and motors, refrigeration plants or units,
communication systems, security systems, dynamos, transformers, generators,
electrical equipment, sto~-~ and screen windows, doors, ,decorations, awnings, shades,
signs, and trees, shrubbery and other plantings;
4. All accounts, contract rights, chattel paper, general intangibles and
all personal property now or hereafter owned by Mortgagor and located on the Real
Estate, together with ail accessions, replacements and substitutions thereto or
therefor and the proceeds and products thereof;
RE(:: ~oo1~ 300:1. ?~ 67270
2
5. All proceeds from the sale, transfer, lease or other disposition of any
of the foregoing, whether voluntary or involuntary (sale, transfers and leases are,
nevertheless, subject to the provisions of paragraphs 8 and 13 hereof), and all
proceeds of the conversion of any of the foregoing into cash or liquidated claims,
including without limitation proceeds of insurance and condemnation awards, and all
parts, fittings, accessories, accessions, substitutions and replacements therefor and
thereof; and
6. Any and all tenements, hereditaments snd appurtenances belonging
to the Real Estate or any part thereof, hereby mortgaged or intended so to be, or in
any way appertaining thereto and all rents, issues, income, and profits arising
therefrom; ail streets, alleys, passages, ways, watercourses, vaults; all other rights,
liberties, easements, covenants and privileges of whatsoever kind or character; the
reversions and remainders; and all the estate, right, title, interest, property,
possession, claim and demand whatsoever, as well at law as in equity, of Mortgagor,
in and to all of the foregoing or any or every part thereof, and all the estate, right,
title and interest of Mortgagor in and to each and every existing and future lease with
respect to all or any portion'of the Real Estate, including, without limitation, all
rents, issues, income, and profits arising therefrom.
TO HAVE AND TO HOLD the Mortgaged Premises hereby granted and
conveyed or mentioned and intended so to be, with the appurtenances, unto
Mortgagee, forever.
AS INDEPENDENT AND SEPARATE SECURITY for the payment of
the indebtedness and performance of the obligations, covenants and agreements
secured hereby, Mortgagor hereby (i) grants to Mortgagee a security interest under
the Pennsylvania Uniform Commercial Code in, among other things, all fixtures,
furnishings, furniture, floor coverings, equipment, trade fLxtures, appliances,
machinery, supplies, tools, accessories, operating inventory accounts, contract rights,
chattel paper, general intangibles and all other personal property now or hereafter
owned by Mortgagor and now or hereafter located on the Real Estate, and such other
items as are stated and more particularly described in the granting clauses set forth
above, and the other permitted encumbrances, (ii) assigm~s to Mortgagee all of
Mortgagor's right, title and interest in and to ail leases, whether now in existence or
hereafter created, together with all rents, deposits and proceeds due and to become
due thereunder and, upon an Event of Default as hereinafter provided, confers upon
Mortgagee the power to enter upon and take possession of the Mortgaged Premises
and to rent the same, either in its own name or in the name of Mortgagor, and to
receive the rents, issues and profits therefrom, and to apply the same to the payment
of interest, principal, taxes, insurance premiums, repairs, alterations, improvements
and other expenses in such order of priority as Mortgagee shall determine, but such
REC Boot: 3001 P~e 67271
3
collection of rents, issues and profits shall not operate as an affirmance of any tenant,
lease or sublease, in the event that title to all or any part of the Mortgaged Premises
should be acquired by Mortgagee or any other purchaser at a foreclosure sale, except
as expressly provided herein, and (iii) assigns to Mortgagee, as additional collateral
security for an amounts secured hereby, all of Mortgagor's right, title and interest in
and to all insurance policies, ail proceeds of insurance policies, all unearned
premiums paid by Mortgagor, accrued or to accrue under all insurance policies,
irrespective of who maintains such insurance, including but not limited to Mortgagor
or any tenant at the Mortgaged Premises, and all proceeds arising from
condemnation proceedings applicable to all or any part of the Mortgaged Premises.
ADDITIONAL PROVISIONS
Mortgagor represents, covenants, warrants, and agrees to and with
Mortgagee, as follows:
1. Title; Power; No Violation. Mortgagor represents that it has good
and marketable fee title to, the Real Estate and the bui][dings, structures,
improvements, fLxtures, machinery, tenements and other property and property
interests which constitute the Mortgaged Premises, and[ to all rents, issues and
profits therefrom, and has the right, full power and lawful authority to grant, convey
and assign the same to Mortgagee in the manner and form set forth herein and in the
other Loan Documents. The Mortgaged Premises are free and clear of all liens,
encumbrances and other charges whatsoever except such easements and
encumbrances as have been accepted by the Bank ("Pemmitted Liens"). Mortgagee, its
successors and assigns will quietly enjoy and possess the Mortgaged Premises to the
extent provided in this Mortgage. Mortgagor's grant and conveyance of Mortgagor's
title and interest in and to the Mortgaged Premises to Mortgagee pursuant to this
Mortgage do not and will not violate any covenant or agreement by which Mortgagor
is bound.
2. Comoliance: Environmental Matters.
2.1. Mortgagor has not treated, stored, recycled, disposed of or
discharged any hazardous, toxic or polluting substances on or into the Mortgaged
Premises in any manner which may require remediation under any applicable law or
regulation and Mortgagor, has no knowledge of any other person or entity, including,
without limitation, any previous owner or operator of the Mortgaged Premises,
having treated, stored, recycled, disposed of or discharged any hazardous, toxic or
polluting substances on or into the Mortgaged Premises in such manner.
67272
4
2.2. Mortgagor, having made inquiry and investigation, has no
knowledge of any violation of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), the Superfund Amendments
and Reauthorization Act of 1986 ("SARA"), the Resource Conservation and Recovery
Act of 1976 ("RCRA"), as amended by the Hazardous au:d Solid Waste Amendments of
1984, the Federal Water Pollution Control Act ("Clean Water Act"), the Toxic
Substances Control Act (TSCA), the Clean Air Act ("CAA"), the Pennsylvania
Hazardous Sites Cleanup Act of 1988 ("HSCA"), the Pennsylvania Clean Streams Law
("CSL"), the Pennsylvania Solid Waste Management Act of 1980 ("SWMA"), the
Pennsylvania Storage Tank and Spill Prevention Act of 1989 ("Act 32") or any rule or
regulation promulgated pursuant to any of the foregoing statutes or any other
applicable environmental law, statute, rule, regulation or ordinance (all of the
foregoing are hereinafter sometimes collectively referred to as the "Environmental
Laws and Regulations") by Mortgagor, any affiliate, agent or independent contractor
of Mortgagor or any other person or entity, including a previous owner or operator of
the Mortgaged Premises, with respect to the Mortgaged Premises, and no such
environmental liability exists on or in connection with the Mortgaged Premises.
2.3. Mortgagor has filed all applications, notifications and plans
required by law and has obtained all permits and authorizations required by law
which are necessary to carry on its business(es), and to the best of Mortgagor's
knowledge, information and belief, the Mortgaged Premises is in compliance with all
applicable Environmental Laws and Regulations.
2.4. Mortgagor has received no notice and is unaware that the
Mortgaged Premises have been designated as a site on tlhe National Priorities List or
similar state list, or have been or are the subject of any removal or response action,
private or governmental, under the Comprehensive Environmental Response,
Compensation or Liability Act, as amended, or the Pennsylvania Hazardous Sites
Cleanup Act or any similar state or federal law, and thai; no requests have been
received to provide information or participate in any study, remedial design or
response action under such laws.
2.5. Mortgagor, has no knowledge that any notification has been
filed with any state, federal or local agency with regard to the discharge of hazardous,
toxic, or polluting substances on or into the Mortgaged Premises which would result
in liability for clean-up under any Environmental Laws and Regulations, or that any
notice has been received from any governmental or quasi-governmental entity that
the Mortgaged Premises is subject to investigation, enforcement or clean-up liabilities
under any such Environmental Laws and Regulations. Mortgagor shall immediately
notify Mortgagee of any such notice filed or received by Mortgagor and shall promptly
provide Mortgagee with a copy of such notice.
REC- Booi: ~001 P~.~e 6727.7,
5
2.6. Mortgagor has not received any claims, demands, notices of
intent to file a claim, demand or lawsuit, notices of deficiencies, or requests for
information relating to actual or potential actions brought by third parties for
violations of any Environmental Laws and Regulations for which Mortgagor may be
liable.
2.7. Mortgagor shall duly observe, conform, obey and comply
with, and shall cause its employees, agents and contractors to duly observe, conform,
obey and comply with all requirements of any federal, state or local governmental or
quasi-governmental authority affecting all or any part of the Mortgaged Premises or
the occupancy thereof or the business or operations now or hereafter conducted
thereon, and will ensure that the present and currently contemplated future use of
the Mortgaged Premises will be in compliance with all applicable environmental
protection and land use regulations or laws including, without limitation, CERCLA,
RCRA, the Clean Water Act, TSCA, CAA, HSCA, CSL, SWMA, Act 32 and any other
federal, state or local environmental law, regulation or ordinance. Notwithstanding
the foregoing, if Mortgagor in good faith and by appropriate action, protest or
proceeding shall contest the validity of any such requirement, law, rule or regulation,
then Mortgagor shall not be required to comply with any such requirement, law, rule
or regulation so long as the contest (i) operates to prevent enforcement thereof or the
potential sale, forfeiture or loss of the Mortgaged Premises; (ii) does not interfere
with the use, occupancy, operations of, or construction of Improvements on, the
Mortgaged Premises, the rent payable by any tenants of' the Mortgaged Premises and
the timely payment of all sums due hereunder; and (iii) is maintained and prosecuted
with diligence and shall not have been terminated or discontinued adversely to
Mortgagor.
2.8. Mortgagor shall exercise due care with respect to any
hazardous, toxic or otherwise polluting substances which may be treated, stored,
recycled, discharged, disposed of or otherwise placed on the Mortgaged Premises and
Mortgagor will take reasonable precautions against the foreseeable acts or omissions
of third parties with regard to the treatment, storage, recycling, discharge, disposal or
placement of hazardous substances on the Premises and the environmental
consequences that could foreseeably result from such acts or omissions. Mortgagor
shall immediately notify Mortgagee and its successors in interest of any act or
omission that could give rise to liability under any Environmental Laws and
Regulations as soon as it occurs.
2.9. Mortgagor, its successors and assigns hereby agree to be
responsible for, defend, indemnify and hold harmless Mortgagee, its directors,
officers, employees, agents, successors and assigns, from and against any and all
losses, damages, expenses and costs, including reasonable attorneys' fees, consulting
REC ~,ooi: 3001 P[~e 67274
6
fees, and experts' fees which Mortgagee may hereafter suffer, incur or lay out, by
reason of any liability arising out of or in relation to violations of any Environmental
Laws and Regulations, claims, causes of action, demands, judgments, orders or
proceedings, including but not limited to, claims resulting from environmental
hazards, loss of life, injury to persons, property or business, and/or damage to natural
resources due to the acts or omissions of Mortgagor or ~my other person or entity,
including third parties who have trespassed on the Mortgaged Premises, during
Mortgagor's ownership of the Mortgaged Premises unless due to Mortgagee's gross
negligence or intentional wrongful actions. Mortgagor, its successors and assigns,
shall bear, pay and discharge, when and as the same become due and payable, any
and ail such judgments or claims for contribution, indemnification, damages,
penalties and attorneys', consulting and experts' fees or otherwise against Mortgagee,
shall hold Mortgagee harmless for such judgments or claims, and shall assume the
burden and expense of defending all suits, administrative proceedings and
negotiations of any kind arising out of any of the occurrences set forth herein unless
due to Mortgagee's gross negligence or intentional wrongful acts. This
indemnification shall extend to any liability Mortgagee :may suffer or incur in
connection with any hazardous waste clean-up ordered 'by any governmental agency
or court or as a result of any actions brought by third parties at law or in equity.
This indemnity shall survive an event of foreclosure under this Mortgage or
conveyance of the Mortgaged Premises in lieu of foreclosure.
2.10. Mortgagor hereby covenants that it shall not construe this
Mortgage or take any action which may cause Mortgagee to be considered a generator
of hazardous substances, or an owner, operator or person in control of any facility or
part of any business of the Mortgagor.
3. Payment and Performance. Mortgagor hereby agrees to pay to
Mortgagee, in accordance with the terms of the Note and this Mortgage, the principal
and interest and all other sums therein and herein set forth. Mortgagor shall
perform and comply with all the agreements, conditions, covenants, provisions and
undertakings contained in the Loan Documents and shall timely perform all of its
obligations and duties as lessor under any lease of all or any portion of the Mortgaged
Premises now or hereafter in effect.
4. Taxes and Other Charges. Mortgagor shall pay or cause to be paid
when due and payable, without any deduction, defalcation or abatement, all taxes,
assessments, water and sewer rents and all other charges or claims which may be
assessed, levied or filed at any time against Mortgagor, the Mortgaged Premises or
any part thereof or which by any present or future law may have priority over the
indebtedness secured hereby either in lien or in distribution out of the proceeds of
any judicial sale. Mortgagor, if and as requested by Mortgagee, shall produce to
7
REC [~vo~ 2;001 Pa~e ~7275
Mortgagee, not later than ten (10) days prior to the dates when any of the same shall
commence to bear interest or penalties, receipts for or other evidence of the payment
thereof. Mortgagor shall not apply for or claim any deduction, by reason of this
Mortgage, from the taxable value of all or any part of the Mortgaged Premises. It is
expressly agreed that no credit shall be claimed or allowed on the principal or interest
payable on the Note because of any taxes or other charges paid.
5. Insurance.
5.1. Mortgagor shall, from and after the date hereof and at all
times while this Mortgage is in force or either Note remains outstanding, maintain,
at Mortgagor's expense, insurance in amounts, with deductibles and with companies
reasonably satisfactory to Mortgagee. Without limiting the generality of the
foregoing, Mortgagor shall maintain the following minimum coverages, unless
otherwise agreed to in writing by Mortgagee, which coverages may be included as
part of a blanket policy insuring the Mortgaged Premises and other properties:
(1) insurance which shall comply with the worker's
compensation and employer's liability laws of all states in which Mortgagor shall have
employees;
(2) comprehensive general liability insurance covering all
operations of Mortgagor and with a combined single limit of not less than $1,000,000
per occurrence for bodily injury (including death) and $1,000,000 for property
damage;
(3) fire, extended coverage, vemdalism and malicious
mischief insurance in an amount not less than the full replacement value of any
Improvement now or hereafter erected on the Real Estate;
(4) if the Mortgaged Premises. is in an area designated by
the Secretary of Housing and Urban Development as having special flood hazards,
flood insurance on the improvements on the Mortgaged ]Premises and any and all
personal property used or to be used in connection therewith, up to the maximum
limits of insurance available under the National Flood Insurance Program as
authorized by the Flood Disaster Protection Act of 1973;
(5) such other insurance, and in such amounts, as may
from time to time be reasonably required by Mortgagee.
8
5.2. Upon execution hereof, Mortgagor shall furnish to
Mortgagee duplicate copies of such policies of insurance or, if acceptable to
Mortgagee, certificates of Mortgagor's insurance agent certifying to the insurance
required and including photocopies of all policies certified by such agent to be true
and correct, in each case specifying the expiration date. Not less than twenty (20)
days prior to the expiration of any such coverage, Mortgagor shall dehver to
Mortgagee a duplicate policy or certificate evidencing the renewal of such coverage
and the payment of all premiums.
5.3. Each insurance policy shall protect the Mortgagee or name
Mortgagee as an additional insured party and shall pro,ride that all proceeds payable
thereunder shall be paid to Mortgagee as loss payee or trustee for the beneficial
owners thereof. All policies shall be issued by companies acceptable to Mortgagee.
5.4 Each insurance policy shall contain a provision requiring the
insured to notify Mortgagee, in writing and at least thirty (30) days in advance, of any
cancellation or material change in the policy.
5.5. If the insurance, or any part thereof, shall expire, or be
withdrawn, or become void or inadequate, in the reasonable opinion of Mortgagee, by
reason of Mortgagor's breach of any condition thereof, or become void or inadequate,
in the reasonable opinion of Mortgagee, by reason of the failure or impairment of the
capital of any company in which the insurance shall be carried, Mortgagor shall place
new insurance on the Mortgaged Premises reasonably satisfactory to Mortgagee. All
renewal policies, with premiums paid, shall be delivered to Mortgagee at least thirty
(30) days before expiration of the existing policies.
5.6. In the event of loss to all or any portion of the Mortgaged
Premises, Mortgagor shall give immediate written and oral notice thereof to
Mortgagee, and Mortgagee may make proof of loss if not made promptly by
Mortgagor; nrovided, however, that any adjustment of proof of loss shall require the
prior written consent of Mortgagee. Each insurance company concerned is hereby
authorized and directed to make payment under such insurance, including return of
unearned premiums, to Mortgagee instead of to Mortgagor and Mortgagee jointly,
and Mortgagor irrevocably appoints Mortgagee as Mortgagor's attorney-in-fact to
endorse any draft thereof, which appointment, being for security, is irrevocable.
5.7. All policies of insurance contemplated in this Paragraph 5,
and all renewals thereof, are hereby assigned to Mortgagee as additional security for
payment of the indebtedness hereby secured and Mortgagor hereby agrees that any
amounts available thereunder upon cancellation or termination of any of such
policies or renewals, whether in the form of return of premiums or otherwise, shall be
REC Boo~: .7,001 Pase ~7277
payable to Mortgagee as assignee thereof. If Mortgagee becomes the owner of the
Mortgaged Premises, or any part thereof, by foreclosure., or otherwise, such policies,
including all right, title and interest of Mortgagor thereunder, shall become the
absolute property of Mortgagee.
5.8. If an Event of Default under this Mortgage, the Note or any
other Loan Document has occurred or is continuing (other than a default which
occurred as a sole result of the loss), Mortgagee shall have the absolute right to retain
and apply the proceeds of any insurance, at its sole election, toward reduction of~he
indebtedness secured hereby or to require Mortgagor to restore or repair the
d~maged property according to plans and specifications approved by Mortgagee.
5.9. Notwithstanding any of the foregoing to the contrary, if (i) at
all times relevant hereto no Event of Default under this Mortgage, the Note or any
other Loan Document has occurred or is continuing (otlier than a default which
occurred as a sole result of the loss), (ii) Mortgagee in its reasonable judgrnent is
satisfied that there are sufficient net proceeds to complete restoration of the
building(s) and improvements on the Mortgaged Premises to substantially the same
value, condition and character as existed prior to such damage, and (iii) the insurers
(in the case of an insured casualty loss) do not deny liability as to the insureds,
Mortgagee shall consent to the use of the net proceeds of any insurance for any part
of Mortgaged Premises for restoration of the Mortgaged Premises in accordance with
the following conditions.
5.9.1. Prior to commencement of restoration, if the cost to
restore is anticipated to exceed $50,000, the contracts and plans and specifications for
the restoration shall have been approved in advance by Mortgagee and Mortgagee
shail be provided with proof acceptable to Mortgagee of 1;he effective filing of a waiver
of mechanics' liens so as to prevent such liens from attaching to the Mortgaged
Premises;
5.9.2. Such restoration, repair or reconstruction is then allowed
by applicable law and all necessary permits and approva~ls have been obtained and are
final and unappealable;
5.9.3. The net proceeds of such insu:cance (the "Restoration
Fund") shall be deposited with Mortgagee, and any interest earned on such deposited
funds shall be a part of and follow the Restoration Fund;
5.9.4. At the time of any disbursement from the Restoration
Fund, no Event of Default under this Mortgage, the Note or any other Loan
Document shall have occurred or be continuing, no mechanics' or material suppliers'
10
liens shall have been filed and remain undischarged, and a bringdown of title
insurance satisfactory to Mortgagee shall be delivered to Mortgagee;
5.9.5. Disbursements from the Restoration Fund shall be made
by Mortgagee from time to time in an Amount not exceeding the cost of the work
completed since the last disbursement, upon receipt by Mortgagee of satisfactory
evidence of the stage of completion and of performance of the work in a good and
workmanlike manner in accordance with the contracts and plans and specifications.
5.9.6. Mortgagee may retain five percent (5%) of all requests for
disbursements from the Restoration Fund as retalnage until the restoration is fully
completed;
5.9.7. Mortgagee may impose such additional reasonable
conditions and requirements with respect to such resteration as are customarily
imposed by mortgagees of properties comparable to the Mortgaged Premises; and
5.9.8. If the estimated cost of restoration, as determined by
Mortgagee in its sole discretion from time to time, exceeds the net amount of
insurance proceeds awarded for the cost of such restoral;ion, the amount of such
excess shall be paid promptly (but in no event later than thirty (30) days after
notification by Mortgagee) by Mortgagor to Mortgagee tv be added to the Restoration
Fund.
6. Payment of Monthly Installments of Te~es, Insurance, Assessments,
etc. Upon the occurrence of an Event of Default, Mortgagee may require Mortgagor
to pay to Mortgagee monthly, in addition to the required payments of interest and
principal payable under the Note and commencing with the first payment due after
the date of such request, monthly payments of 1/12th of the annual real estate taxes,
insurance premiums, water and sewer rents and assessments together with the entire
amount of any sums due for special assessments, charges or claims and any other
item which, at any time, may be or become a lien upon the Mortgaged Premises prior
to the lien of this Mortgage.
7. Waste: Maintenance; Alterations; Permits. Mortgagor shall abstain
from and shall not permit the commission of waste in or about the Mortgaged
Premises; shall maintain the Mortgaged Premises in good order and condition and in
a rentable and tenantable state of repair; and shall make or cause to be made, as and
when necessary, all repairs and replacements, structural and non-structural, exterior
and interior, ordinary and extraordinary, foreseen and unforeseen, whether or not
the same may be necessary by reason of fire or other casualty and whether or not
insurance proceeds are available therefor. Mortgagor shall not remove or demolish
REC Gook 3001 P~e &7279
11
the buildings or other improvements now or hereafter erected upon the Real Estate,
nor alter the design or structural character of any building or other improvement
now or hereafter erected thereon so as to diminish the value thereof, unless
Mortgagee shall first consent thereto in writing. Mortgagor shall obtain and cause to
be kept in full force and effect all necessary licenses, per,nits, authorizations,
consents, and approvals required by all governmental or quasi-governmental
authorities having jurisdiction, including without limitation requisite certificates of
use and occupancy, elevator certificates and certificates of the local board of fire
underwriters (except to the extent Mortgagor contests emy of the same in accordance
with Paragraph 2 hereof).
8. Leases.
8.1. The form and content of any and all leases for all or any part
of the Mortgaged Premises shall be subject in all respects to the prior written
approval of the Mortgagee which approval shall not be unreasonably withheld,
conditioned or delayed.
8.2. Mortgagor shall timely perform all of its obligations under
the terms and conditions of any leases (which shall incktde any and all agreements
for the use or occupancy of any portion of the Mortgaged Premises) affecting the
Mortgaged Premises and shall not accept rent therefor in advance for a period of
more than one (1) month.
8.3. Mortgagor shall not enter into ~my lease for all or any
portion of the Mortgaged Premises except on commercially reasonable terms and fair
market value rentals. Mortgagor shall, in any event, provide Mortgagee with copies
of all leases and amendments, supplements, exhibits and riders thereto either now or
hereafter entered into.
8.4. There is no assignment or pledge of any rents, issues and
profits of or from the Mortgaged Premises now in effect, and Mortgagor shall not
make any other assignment or pledge thereof to anyone other than Mortgagee until
the indebtedness secured hereby is fully paid.
8.5. Mortgagor shall provide that all leases entered into after the
date hereof which permit any party to occupy, possess, or use in any way the
Mortgaged Premises or any part thereof shall include an express prohibition of the
storage, treatment or discharge, production, transportation or disposal of any
hazardous waste, polychlorinated biphenyls, asbestos or other hazardous substance
as defined by CERCLA unless in strict compliance with applicable laws and
Book ~001 ?o.~e &72~0
12
regulations, and the failure to comply with such prohibition shall expressly constitute
a default under any such leases.
8.6. Upon the request of Mortgagee:. Mortgagor shall use its best
efforts to deliver to Mortgagee, within thirty (30) days thereafter, a certificate from
each tenant certifying to the basic terms of its lease, that the lease is unmodified and
in full force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), certifying the dates to
which the basic rent and additional rent, ffany, have been paid, certifying that the
landlord under the lease is not in default thereunder and certifying that the tenant
has no defenses, setoffs, claims or counterclaims against the landlord.
9. Declaration of No Set-Off. If requested at any time by Mortgagee,
Mortgagor shall promptly (and in any event within ten (10) days after request
therefor) furnish Mortgagee or Mortgagee's designee with a Declaration of No
Set-Off, in form and substance satisfactory to Mortgagee; or any such designee,
certifying, in a writing duly acknowledged, the amount of principal, interest and
other charges then owing under the Note, and whether there are any set-offs or
defenses against the same, and, if so, the nature thereof. Mortgagee shall promptly
issue a similar Declaration to Mortgagor upon Mortgagor's reasonable request
therefor.
10. Inspection. Mortgagee and any persons authorized by Mortgagee
shall have the right at any time, upon 24 hours advance notice to Mortgagor, to enter
upon the Mortgaged Premises during normal business hours to inspect and
photograph its condition and state of repair and occupancy. In the event
environmental contamination or the potential for contamination is discovered,
Mortgagee and any persons authorized by Mortgagee shall have the right to
undertake environmental testing in order to determine the presence or absence of
hazardous, toxic or otherwise polluting substances and to determine whether and to
what extent remediation of the property is necessary.
11. Books and Records. Mortgagor will maintain full and complete
books of account and other records reflecting the results of its operations (in
conjunction with its operations of the Mortgaged Premises), in accordance with
generally accepted accounting principles, and furnish or cause to be furnished to
Mortgagee such financial data and other information as Mortgagee shall, from time to
time, reasonably request with respect to Mortgagor and 1;he ownership and operation
of, and the construction of Improvements on, the Mortgaged Premises. Mortgagee
shall have the right, at reasonable times and upon 24 hours advance notice, to audit
Mortgagor's books of account and records.
Book ~001 P~se 67~281
13
12. Required Notices. Mortgagor shall no~ify Mortgagee promptly upon
Mortgagor becoming aware of the occurrence of any of the following: (a) a fire or
other casualty causing damage to the Mortgaged Premises; (b) receipt of notice of
eminent domain proceedings or condemnation of all or ~my portion of the Real Estate;
(c) receipt of notice from any governmental authority relating to the structure, use,
operation or occupancy of or otherwise related to or affecting the Mortgaged
Premises, including but not limited to any notice relating to environmental or land
use regulation laws; (d) substantial change in the occup~ucy, operation or use of any
portion of the Mortgaged Premises; (e) receipt of any notice of the imposition of, or of
threatened or actual execution on, any lien on, or security interest in, the Mortgaged
Premises; and (f) commencement of any litigation or notice of any threat of litigation
which materially adversely affects the Mortgaged Premises, whether or not covered
by insurance.
13. No Transfer; No Other Liens.
13.1. Without the prior written consent of Mortgagee, which
shall not be unreasonably withheld, or except as permitted in the Note, Mortgagor
shall abstain from and shall not cause or permit any conveyance, transfer or other
disposition of title to, or any legal or equitable interest in, the Mortgaged Premises or
any part thereof (other than by execution on the Note or foreclosure under this
Mortgage) voluntarily or by operation of law, or any agreement to do any of the
foregoing (including, but not limited to, any lease or installment sales contract with
respect to any or all of the Mortgaged Premises). Any sale, assignment, pledge,
encumbrance or transfer to a third party of any interest in the Mortgagor shall be
deemed to violate this prohibition on transfers notwithstanding the above
prohibitions, William Witkoski, a principal in the Mortgagor, shall be permitted to
transfer his interest in the Mortgagor to any of the other partners or to a third party,
if applicable, without resulting in a violation of this Paragraph 13.
13.2. Mortgagor shall not, without tlhe prior written consent of
Mortgagee, create or cause or permit to exist (voluntarily or involuntarily) any lien
(other than the lien of this Mortgage and any permitted liens identified in paragraph
1 of the Mortgage), encumbrance or charge on, or security interest in, all or any part
of the Mortgaged Premises, except real estate taxes which are not yet due and
payable.
13.3. If any lien or encumbrance prohibited under this Paragraph
13 is filed or entered, Mortgagor shall have it removed of record within thirty (30)
days after it is filed or entered by either paying it, having it bonded in a manner
which removes it of record or otherwise having it removed of record.
Notwithstanding the foregoing, if Mortgagor in good fait]h and by appropriate legal
REC Boo~ 3001 Po.~ 67282
14
action shall contest the validity of any such lien, judgment or other encumbrance, or
the amount thereof, and, at the option of Mortgagee, shall have established on its
books or by deposit of cash with Mortgagee a reserve far the payment thereof in such
~mount as Mortgagee may require, and, in the event this Mortgage is subordinate to
such lien, judgment or encumbrance, if Mortgagee shall have consented in writing to
such action, then Mortgagor shall not be required to have such lien, judgment or
other encumbrance removed of record while the reserve is maintained and so long as
the contest operates to stay any proceedings which may be instituted to enforce
payment or satisfaction of such lien, encumbrance or other judgment and prevent a
sale of the Mortgaged Premises to pay or satisfy such lien, encumbrance or other
judgment, such contest is maintained and prosecuted with diligence, and shall not
have been terminated or discontinued adversely to Mortgagor.
13.4. By placing a mortgage, lien or encumbrance of any type,
whether voluntary or involuntary, against the Mortgaged Premises, the holder
thereof shall be deemed to have agreed, without any further act or documentation
being required, that its mortgage, lien, or encumbrance shall be subordinated in lien
to any future amendments, consolidations or extensions to this Mortgage (including,
without limitation, amendments which increase the interest rate on the Note or
provide for future advances secured by this Mortgage).
13.5. The holder of any subordinate mortgage or other lien,
whether or not consented to by Mortgagee, expressly agrees by acceptance of such
subordinate mortgage or other lien that it waives and relinquishes any rights which it
may have, whether under a legal theory of marshaling of assets or any other theory at
law or in equity, to restrain Mortgagee from, or recover ,images from Mortgagee as a
result of, the exercise by Mortgagee of any of its various remedies hereunder and
under any other documents or instruments evidencing or securing the indebtedness
secured hereby, in such order and with such timing as Mortgagee shall deem
appropriate in its sole and absolute discretion. Mortgagor shall have no right to
permit the holder of any subordinate mortgage or other subordinate lien, whether or
not consented to by Mortgagee, to terminate any lease of all or a portion of the
Mortgaged Premises whether or not such lease is subordinate (whether by law or the
terms of such lease or a separate agreement) to the lien of this Mortgage without first
obtaining the prior written consent of Mortgagee. The holder of any subordinate
mortgage or other subordinate lien shall have no such right, whether by foreclosure
of its mortgage or lien or otherwise, to terminate any suc, h lease, whether or not
permitted to do so by Mortgagor or as a matter of law, and any such attempt to
terminate any such lease shall be ineffective and void without first obtaining the
prior written consent of Mortgagee.
15
13.6. Mortgagee may, at any time or from time to time, renew,
extend or increase the smount of this Mortgage, or alte]: or modify the terms of this
Mortgage or the Note in any way, or waive any of the terms, covenants or conditions
hereof or of the Note in whole or in part and may release any portion of the
Mortgaged Premises or any other security, and grant such extensions and
indulgences in relation to the indebtedness secured hereby as Mortgagee may
determine, without the consent of any junior lien or encumbrancer and without any
obligation to give notice of any kind thereto and without in any manner affecting the
priority or the liens hereof on ail or any part of the Mortgaged Premises.
13.7. Any violation of any of the foregoing limitations, at the
option of Mortgagee, shall be deemed an Event of Default hereunder.
14. Cure by Mortgagee. If Mortgagor at any time (a) fails, after thirty
(30) days' written notice from Mortgagee, to pay any claim, lien or encumbrance
which shail be prior to this Mortgage, or to pay when due any tax or assessment or
any insurance premium, or (b) fails, after thirty (30) days' written notice from
Mortgagee, to keep the Mortgaged Premises in repair, or to replace or restore as
required hereby, or (c) shall commit or permit waste, or (d) if there be commenced
any action or proceeding affecting the Mortgaged Premises or the title thereto which
Mortgagor does not defend in accordance with the provisions of paragraph 13.3,
Mortgagee, at its option, may pay such claim, lien, encmnbrance, tax, assessment or
premium, with right of subrogation thereunder, may procure such abstracts or other
evidence of title as it deems necessary, may make such repairs, replacements or
restorations and take such steps as it deems advisable to prevent or cure such waste,
and may appear in any such action therein as Mortgagee deems advisablarand for any
of such purposes Mortgagee may advance such sums of raoney as it deems necessary;
provided, however, that any notices sent or grace periods granted to Mortgagor to
cure shall not be necessary if in Mortgagee's reasonable ~iudgrnent it is necessary that
Mortgagee take immediate action in order to protect the security provided for by this
Mortgage. Mortgagor shall pay to Mortgagee immediately upon demand all sums of
money advanced by Mortgagee pursuant to this Paragraph 14, together with interest
on each advance at the Default Rate set forth in the Note, and all such sums and
interest thereon shall be secured hereby.
15. Retention of Counsel. If Mortgagee retains the services of counsel
by reason of an Event of Default hereunder or on account of any matter involving
Mortgagor's title to the Mortgaged Premises or the security interest intended to be
granted hereby, including, without limitation, condemnation proceedings, bankruptcy
proceedings, or proceedings involving defects in title which are not covered by
Mortgagee's title insurance policy, all costs of suit and reasonable attorneys' fees shail
upon demand therefor forthwith become due and payable by Mortgagor and shall be
RE,C ~D[,',: .~OO1 P~l~e &7284
16
secured hereby. If Mortgagee shall institute legal proceedings to foreclose this
Mortgage or enter judgment on the Note, Mortgagor shall pay ail expenses, including
attorneys' fees as herein provided and eourt costs, of Mortgagee in connection with all
such proceedings, whether or not otherwise legally chargeable to Mortgagor, together
with interest at the Default Rate as defined in the Note, until actuai payment is made
of the full amount due Mortgagee, whether before or after judgment, and all such
SllmS shall be secured hereby.
16. Events of Default.
16.1. Each of the following shall constitute an event of default
hereunder (an "Event of Default"):
(i) The occurrence of any Event of I)efault under (and as defined
in) the Note, or any other Loan Document subject to applicable notice and grace
period (if any) set forth therein.
(ii) The failure of Mortgagor to pay any amount owed hereunder
within fifteen (15) days of the date when due and payab]e.
(iii) The occurrence of any event specified and prohibited in
paragraph 13.1 hereof.
(iv) The failure of Mortgagor to observe, perform or abide by any
non-monetary obligation, covenant, warranty, agreement, condition or provision
contained herein, excepting those enumerated in Paragraph 13.1 hereof; provided,
that an Event of Default shall not be deemed to have occurred hereunder because of
or with respect to any default or breach by Mortgagor on or of any obligation,
covenant, warranty, agreement, condition or provision described in this
subparagraph (iv) unless Mortgagee shail have first given Mortgagor written notice of
such default or breach, specifying the nature and extent thereof, and Mortgagor shail
have failed (a) to begin correcting such default or breach within a period of five (5)
days after the date of receipt of such notice, and (b) to proceed diligently with efforts
to cure the default or breach until it shall be fully cured 'within no more than thirty
(30) days after the date of such notice; provided, further, that ffand to the extent
such default or breach cannot reasonably be cured within such thirty (30) day period
as aforesaid, and ff Mortgagor has theretofore diligently .attempted to cure the same
and thereafter continues diligently to cure the same, then the cure period provided
for herein may be extended up to a date set by Mortgagee.
REC Book 3001 P~)e 6728.5
17
(v) The occurrence of a default on or breach of any other
monetary or non-monetary obligation secured by the Mortgaged Premises or any part
thereof which continues uncured after the expiration of any applicable cure period.
(vi) (1) The commencement by Mortgagor, or any guarantor or
surety for the indebtedness secured hereby, of a volunt~n-y case under any Chapter of
the Bankruptcy Code (Title 11 of the United States Code), as now or hereafter in
effect, or the taking by Mortgagor or any such guarantor or surety of any equivalent
or similar action by filing of a petition or otherwise under any other federal or state
law in effect at the time relating to bankruptcy or insolvency; (2) the filing of a
petition against Mortgagor or any such guarantor or surety under any Chapter of the
Bankruptcy Code (Title 11 of the United States Code), as now or hereafter in effect,
or the filing of a petition seeking any equivalent or similar relief against Mortgagor or
any such guarantor or surety under any other federal or state law in effect at the
time relating to bankruptcy or insolvency, and the failure by Mortgagor or such
guarantor or surety to secure the discharge of such petition within sixty (60) days
from the date of filing; (3) the making by Mortgagor or any such guarantor or surety
of a general assignment for the benefit of its creditors; (4) the appointment of a
receiver, trustee, custodian or similar officer for Mortgagor or any such guarantor or
surety or for the property of Mortgagor or any such guarantor or surety, and the
failure by Mortgagor or such guarantor or surety to secure the discharge of such
receiver, trustee, custodian or similar officer within sixty (60) days from the date of
appointment; or (5) the admission in writing by Mortgagor or any such guarantor or
surety of any inability to pay debts generally as they become due.
16.2. If a prior mortgagee or the holder of any junior mortgage or
any other lien on the Mortgaged Premises (without hereby implying Mortgagee's
consent to any such junior or senior mortgage or lien) institutes foreclosure or other
proceedings for the enforcement of its remedies thereunder, or if a default or an
Event of Default exists under any other mortgage or lien on the Mortgaged Premises,
such shall constitute an Event of Default under this Mortgage.
17. Remedies.
17.1. Upon the occurrence of any Event of Default, the entire
unpaid balance of the principal, accrued interest and all other sums secured by this
Mortgage shall become immediately due and payable, at the option of Mortgagee,
without further notice or demand.
17.2. When the entire indebtedness shall become due and
payable, either because of maturity or because of the occurrence of any Event of
REC Boot: :~001 P~l.e 67286
18
Default, or otherwise, then forthwith Mortgagee may, at its option, do any or ail of
the following:
(i) Foreclosure. Institute an action of mortgage
foreclosure against the Mortgaged Premises, or take such other action at law or in
equity for the enforcement of this Mortgage and realization on the mortgage security
or any other security herein or elsewhere provided for, as the law may ailow, and may
proceed thereon to final judg~lient and execution for the entire unpaid baiance of the
principai debt, with interest at the Interest Rate defined and set forth in the Note to
the date of default, and thereafter at the Default Rate defined and set forth in the
Note, together with ail other sums due by Mortgagor in accordance with the
provisions of the Note and this Mortgage and any other Loan Document, including ail
sums which may have been loaned by Mortgagee to Mortgagor after the date of this
Mortgage pursuant to any extension or modification of tlhe Note, this Mortgage or
any other Loan Document, and all sums which may have been advanced by
Mortgagee for taxes, water or sewer rents, charges or claims, payments on prior liens,
insurance, utilities or repairs to the Mortgaged Premises;, all costs of suit, together
with interest at such Default Rate on any judgment obtained by Mortgagee from and
after the date of any sheriffs saie until actual payment is made of the full amount due
Mortgagee, and reasonable attorneys' fees; and
(ii) Entry. Enter into possession of the Mortgaged
Premises, with or without legal action; lease the same; collect ail rents and profits
therefrom and, after deducting all costs of collection and administration expenses,
apply the net rents and profits to the payment of any suzns due under any prior lien,
taxes, water and sewer rents, charges (including but not limited to agents'
compensation and fees and costs of counsel and receivers), claims, insurance
premiums and all other carrying charges, and to the maintenance, repair or
restoration of the Mortgaged Premises, or on account and in reduction of the
principal or interest, or both, hereby secured, in such order and amounts as
Mortgagee in Mortgagee's sole discretion may elect. Mortgagee may also, at its
option, enter upon the Mortgaged Premises for the purpose of making repairs,
alterations and improvements necessary to protect or enhance its security interest
therein, including the right to undertake environmental testing in order to determine
the presence or absence of hazardous, toxic or otherwise polluting substances and to
determine whether and to what extent remediation of the property is necessary.
FOR THE PURPOSE OF OBTAINING POSSESSION OF THE MORTGAGED
PREMISES FOLLOWING ANY DEFAULT HEREUNDF, R OR UNDER THE NOTE,
MORTGAGOR HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF
ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR
ELSEWHERE, AS ATTORNEY FOR MORTGAGOR AND ALL PERSONS
CLAIMING UNDER OR THROUGH MORTGAGOR, T£) SIGN AN AGREEMENT
I~EC Boo~..~001 P~e ~7287
19
FOR ENTERING IN ANY COMPETENT COURT AN ACTION IN EJECTMENT
FOR POSSESSION OF THE MORTGAGED PREMISE;S AND TO APPEAR FOR
AND CONFESS JUDGMENT AGAINST MORTGAGOR, AND AGAINST ALL
PERSONS CLAIMING UNDER OR THROUGH MORTGAGOR, IN FAVOR OF
MORTGAGEE, FOR RECOVERY BY MORTGAGEE OF POSSESSION THEREOF,
FOR WHICH THIS MORTGAGE OR A COPY HEREOF, VERIFIED BY
AFFIDAVIT, SHALL BE SUFFICIENT W~T; AND THEREUPON A WRIT
OF POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE
MORTGAGED PREMISES, WITHOUT ANY PRIOR WRIT OR PROCEEDING
WHATSOEVER AND WITHOUT ANY STAY OF EXECUTION. If for any reason
after such action has been commenced it shall be discontinued or suspended, or
possession of the Mortgaged Premises shall remain in or be restored to Mortgagor,
Mortgagee shall have the right for the same default or any subsequent default to
bring an amicable action in ejectment and confess judgment therein before or after
the institution of proceedings to foreclose this Mortgage or to enforce the Note, or
after entry ofjudgraent therein or on the Note, or after a sheriffs sale or judicial sale
or other foreclosure sale of the Mortgaged Premises in which Mortgagee is the
successful bidder, it being the understanding of the parties that the authorization to
pursue such proceedings for obtaining possession and confession of judgment therein
is an essential part of the remedies for enforcement of the Mortgage and shall survive
any execution sale to Mortgagee; and
(iii) Receivership. Have a receiver appointed to enter into
possession of the Mortgaged Premises, collect the rents, issues and profits therefrom
and apply the same as the court may direct. Mortgagee shall be entitled to the
appointment of a receiver without the necessity of proving either the inadequacy of
the security or the insolvency of Mortgagor of any other person who may be legally or
equitably liable to pay moneys secured hereby, and Mortgagor and each such person
shall be deemed to have waived such proof and to have consented to the appointment
of such receiver. Should Mortgagee or any receiver collect rents, issues or profits
from the Mortgaged Premises, Mortgagee shall (after p~rment of all costs and
expenses incurred) apply such rents, issues and profits received by it to the
indebtedness secured hereby; and such rents, issues and profits shall not be used to
cure the default, without the prior written consent of Mortgagee. Mortgagee shall be
liable to account only for rents, issues and profits actual!y received by Mortgagee.
17.3. Upon the occurrence of an Event of Default hereunder,
Mortgagee, pursuant to the foregoing remedies, or in addlition thereto, (i) shall be
entitled to resort to its several securities for the payment of the sums secured hereby
in such order and manner as Mortgagee may think fit wil;hout impairing Mortgagee's
lien in or rights to any of such securities and without affecting the liability of any
person, firm or corporation for the sums secured hereby, except to the extent that the
2O
indebtedness secured hereby shall have been reduced by the actual monetary
consideration, ff any, received by Mortgagee from the proceeds of such security; (ii)
may, in Mortgagee's sole discretion, release for such consideration, or none, as
Mortgagee may require, any portion of the Mortgaged P'remises without, as to the
remainder of the security, in any way impairing or affecting the lien of this Mortgage
or the priority thereof or improving the position of any subordinate lienholder with
respect thereto, except to the extent that the indebtedness secured hereby shall have
been reduced by the actual monetary consideration, if any, received by Mortgagee for
such release; and/or (iii) may accept the assignment or pledge of any other property
in place thereof as Mortgagee may require without being accountable for so doing to
any other lienor. In the event of any breach by Mortgagor of any of the covenants,
agreements, terms or conditions contained in this Mortgage, Mortgagee shall be
entitled to enjoin such breach and shall have the right to invoke any right and
remedy allowed at law or in equity or by statute or otherwise as though such other
remedies were provided for in this Mortgage.
17.4. Mortgagee shall have the right, from time to time, to bring
an appropriate action to recover any sums required to be paid by Mortgagor under
the terms of this Mortgage, as they become due, without regard to whether or not the
principal indebtedness or any other sums secured by the Note and this Mortgage
shall be due, and without prejudice to the right of Mortgagee thereafter to bring an
action of mortgage foreclosure, or any other action, for any default by Mortgagor
existing at the time the earlier action was commenced.
17.5. Any real estate sold pursuant to any writ of execution
issued on a judgment obtained by virtue of the Note or this Mortgage, or pursuant to
any other judicial proceedings under the Mortgage, may be sold in one parcel, as an
entirety, or in such parcels, and in such manner or order, as Mortgagee, in its sole
discretion, may elect.
17.6. If an Event of Default hereunder has occurred or is
continuing, Mortgagee shall have the right to set off all or any part of any amount
due by Mortgagor to Mortgagee under the Note, this Mortgage or otherwise, against
any indebtedness, liabilities or obligations owing by Mortgagee for any reason and in
any capacity to Mortgagor, including any obligation to disburse to Mortgagor or its
designee any funds or other property on deposit with or otherwise in the possession,
control or custody of Mortgagee.
18. Rights and Remedies Cumulative.
18.1. The rights and remedies of Mortgagee as provided in the
Note, this Mortgage or any other Loan Document, and in the warrants attached
21
thereto or contained therein, shall be cumulative and concurrent, may be pursued
separately, successively or together against Mortgagor or against the Mortgaged
Premises, or any one or more or all, at the sole discretion of Mortgagee, and may be
exercised as often as occasion therefor shall arise. The failure to exercise any such
right or remedy shall in no event be construed as a waiver or release thereof.
18.2. Any failure by Mortgagee to insist upon strict performance
by Mortgagor of any such terms and provisions of this Mortgage or of the Note or of
any other Loan Document shall not be deemed to be a waiver of any such terms or
provisions, and Mortgagee shall have the right thereafter to insist upon strict
performance by Mortgagor of any and all such terms or provisions thereof.
18.3. Neither Mortgagor nor any otlher person now or hereafter
obligated for payment of all or any part of the sums now or hereafter secured by this
Mortgage shall be relieved of such obligation by reason of the failure of Mortgagee to
comply with any request of Mortgagor or of any other person so obligated to take
action to foreclose on this Mortgage or otherwise enforce any provisions of the
Mortgage or the Note or any other Loan Document, or by reason of any agreement or
stipulation between any subsequent owner of the Mortgaged Premises and Mortgagee
extending the time of payment or modifying the terms of the Mortgage or Note
without first having obtained the consent of Mortgagor or such other person; and in
the latter event Mortgagor and all such other persons shall continue to be liable to
make payments according to the terms of any such extension or modification
agreement, unless expressly released and discharged in writing by Mortgagee.
18.4. Mortgagee may release, regardless of consideration, any
part of the security held for the indebtedness secured by this Mortgage without, as to
the remainder of the security, in any way impairing or affecting the lien of this
Mortgage or its priority over any subordinate lien.
18.5. For payment of the indebtedness secured hereby,
Mortgagee may resort to any other security therefor held. by Mortgagee in such order
and manner as Mortgagee may elect.
18.6. Except as otherwise permitted by law, the receipt by
Mortgagee of any sum from Mortgagor after the date on which Mortgagee elects to
accelerate the indebtedness secured hereby by reason of ~m Event of Default
hereunder or under the Note or any other Loan Document shall not constitute a cure
or waiver of such default or a reinstatement of the Note or Mortgage or such other
Loan Document unless Mortgagee expressly agrees, by w.~itten notice to Mortgagor,
that such payment shall be accepted as a cure or waiver of the default.
REC ~ook ~00'1 Po~e 67290
22
19. Possession by Mortgagee. If Mortgagee shall take possession of the
Mortgaged Premises as provided herein, Mortgagee may do all or any of the following
(provided that nothing herein contained shall obligate Mortgagee to do any of the
same): (a) hold, manage, operate, lease and sublease the Mortgaged Premises to
Mortgagor or any other person or persons, on such terms and for such periods of time
as Mortgagee may deem proper, and the provisions of any lease or sublease made by
Mortgagee pursuant hereto shall be valid and binding upon Mortgagor
notwithstanding the fact that Mortgagee's right of possession may terminate or this
Mortgage may be satisfied of record prior to the expiration of the term of any such
lease; (b) make such alterations, additions, improvements, renovations, repairs and
replacements to the Mortgaged Premises as Mortgagee may deem proper; (c)
demolish any part or all of the buildings, structures or other improvements on the
Real Estate; (d) remodel such buildings, structures or other improvements so as to
make them available in whole or in part for any business, dwelling, multiple dwelling
or other purposes; and (e) collect the rents, issues and profits arising from the
Mortgaged Premises, both past due and thereafter becoming due, and apply the same,
in order of priority as Mortgagee may determine, to the payment of all charges and
commissions incidental to the collection of rents and the management of the
Mortgaged Premises and all other sums or charges required to be paid by Mortgagor
hereunder or under the Note. All moneys advanced by Mortgagee for the purposes
aforesaid and not repaid out of the rents collected shall immediately and without
demand be repaid by Mortgagor to Mortgagee, together with interest thereon at the
Default Rate defined and set forth in the Note, and shall be added to the principal
indebtedness hereby secured. The taking of possession and collection of rents by
Mortgagee as aforesaid shall not be construed to be an affirmation of any lease, or
any part thereof, and Mortgagee or any other purchaser at any foreclosure sale may,
to the extent otherwise permitted, terminate any lease either in accordance with its
terms or pursuant to its right to do so by virtue of its possession of the Mortgaged
Premises.
20. Waivers. The granting of an extension or extensions of time by
Mortgagee with respect to the performance of any provi~,;ion of this Mortgage on the
part of Mortgagor to be performed, or the taking of any additional security, or the
waiver by Mortgagee or failure by Mortgagee to enforce ;~ny provision of this
Mortgage or to declare a default with respect thereto, shall not operate as a waiver of
any subsequent default or defaults or affect the right of Mortgagee to exercise all
rights, powers or remedies set forth herein and therein.
21. Condemnation.
21.1. Mortgagee shall be entitled to receive all sums which have
been or may be awarded Mortgagor for the taking or conclemnation of the Mortgaged
23
F~EC Sook 3001 P(~e 6729].
Premises or any part thereof for any public or quasi-public use or purpose, and any
sums which may be awarded Mortgagor for damages caused by public works or
construction on or near the Mortgaged Premises. All suoh proceeds and awards are
hereby assigned to Mortgagee, and Mortgagor, upon request by Mortgagee, agrees to
make, execute and deliver any additional assignments or documents which may be
necessary from time to time to enable Mortgagee, as its option, to collect and receive
the same. Except as otherwise provided in Paragraph 5.9. hereof, which shall also
apply to proceeds of condemnation as well as insurance, Mortgagee shall have the
right to retain and apply all such proceeds and awards, as its election, to reduction of
the indebtedness secured hereby, in such order of application as Mortgagee in its
discretion shall determine, provided that interest shall be payable only on the amount
of principal outstanding at any time after application of .any such proceeds.
21.2. If the amount of the initial award of damages for the taking
or condemnation is insufficient to pay in full the indebtedness secured hereby, with
interest and other appropriate charges and other sums secured hereby, Mortgagee
shall have the right to prosecute to final determination or settlement an appeal or
other appropriate proceedings in the name of Mortgagee or Mortgagor, for which
Mortgagee is hereby appointed attorney-in-fact for Mortgagor, which appointment,
being for security, is irrevocable. In that event, the expenses of the proceeding,
including attorneys' fees as aforesaid, shall be paid first out of the proceeds, and only
the excess, if any, paid to Mortgagee shall be credited against the amounts due under
this Mortgage.
21.3. Nothing herein shall limit the rights otherwise available to
Mortgagee, at law or in equity, including the right to intervene as a party to any
condemnation proceeding; and Mortgagee is hereby expressly given the right to
intervene as a party to, and otherwise participate in, any such proceeding, and, to the
extent reasonably required, to engage counsel on its behalf, and to add the reasonable
attorneys' fees of any such counsel to the amounts secured hereby.
22. Security Agreement.
22.1. This Mortgage constitutes a security agreement under the
Pennsylvania Uniform Commercial Code, and Mortgagor hereby grants to Mortgagee
a security interest in all the property (and the proceeds thereof) now owned or
hereinafter acquired by Mortgagor and included in the Mortgaged Premises which
might otherwise be deemed "personal property", as well as a security interest in the
proceeds thereof (the "Collateral"). Mortgagor shall execute, deliver, file and refile
any financing statements, continuation statements, or other security agreements
Mortgagee may reasonably require from time to time to confirm the lien of this
Mortgage with respect to the Collateral. Without limiting the generality of the
REC Boo~ ~,001 P~ 672~2
24
foregoing, Mortgagor hereby irrevocably appoints Mortgagee attorney-in-fact for
Mortgagor to execute, deliver and file such continuation statements for and on behalf
of Mortgagor, which appointment, being for security, is irrevocable.
22.2. In addition to any other remedies granted in this Mortgage,
Mortgagee may, upon the occurrence of an Event of Default, proceed under the
Uniform Commercial Code as to all or any part of the Cellateral and will have and
may exercise, with respect to the Collateral, all rights, remedies and powers of a
secured party under the Uniform Commercial Code, including, without limitation,
the right and power to sell at public or private sale or sedes, or otherwise dispose of,
lease or utilize the Collateral or any parts thereof in any manner authorized or
permitted under the Uniform Commercial Code after defanlt by a debtor, and to
apply the proceeds thereof in payment of any reasonable costs and expenses and
reasonable attorney's fees and legal expenses thereby incurred by Mortgagee, and to
the payment of indebtedness secured by this Mortgage in such order and manner as
Mortgagee may elect.
22.3. Among the rights Mortgagee shall have in the event of such
default, and without limitation of the foregoing, Mortgagee may take possession of
the Collateral and enter upon any premises where the seaue may be situated for such
purpose without being guilty of trespassing, and to take any action deemed necessary
or appropriate or desirable by Mortgagee, at its option, to repair, refurbish or
otherwise prepare the Collateral for sale, lease or other rise or disposition as herein
authorized.
22.4. To the extent permitted by law, Mortgagor expressly waives
any notice of sale or other disposition of the Collateral ~ad any other rights or
remedies of a debtor or formalities prescribed by law relative to a sale or disposition
of the Collateral or exercise of any other right or remedy of Mortgagee existing after
default of Mortgagor hereunder; and to the extent any such notice is required and
cannot be waived, Mortgagee agrees that if such notice is mailed, postage prepaid, to
Mortgagor at its address provided herein at least ten (10) days before the time of sale
or disposition, such notice shall be deemed reasonable and shall fully satisfy any
statutory or other requirement for the giving of such notice. Upon the occurrence of
an Event of Default, Mortgagee shall have the right, at its option, to transfer at any
time to itself or its nominee the Collateral or any part thereof, and to receive the
moneys, income, proceeds or benefits attributable or accruing thereto and to hold the
same as security for the indebtedness or to apply it to the principal, interest and
other amounts owing on any of the indebtedness, in such order and manner as
Mortgagee may elect. All rights to marshaling of assets of Mortgagor, including any
such right with respect to the Collateral, are hereby waived.
25
22.5. Mortgagee may require Mortgagor to assemble the
Collateral and make it available to Mortgagee at a place to be designated by
Mortgagee that is reasonably convenient to both parties. All reasonable expenses of
retaking, holding, preparing for sale, lease or other use, of disposition, settling,
leasing or otherwise using or disposing of the Collateral ~_ud the like which are
incurred or paid by Mortgagee as authorized or permitted hereunder, including all
reasonable attorneys' fees, legal expenses and costs, shall be added to the
indebtedness secured by this Mortgage and Mortgagor shall be liable therefor.
23. Further Assurances. Mortgagor shall execute and deliver such
further instruments and perform such further acts as may be reasonably requested
by Mortgagee from time to time to confirm the provisions of this Mortgage, the Note
or any other Loan Document, to carry out more effectively the purposes hereof or
thereof, or to confirm the priority of the lien created by this Mortgage on any
property, rights or interests encumbered or intended to be encumbered by the lien of
this Mortgage or the other Loan Documents securing the Note.
24. No Offset. All sums payable by Mortgagor herein shall be paid
without notice, demand, counterclaim, set-off, deduction or defense, without
abatement, suspension, deferment, diminution, or reduction, and the obligations and
liabilities of Mortgagor hereunder shall in no way be released, discharged or
otherwise affected (except as expressly provided herein) 'by reason of (a) any damage
to or destruction of or any condemnation or similar taking of the Mortgaged Premises
or any part thereof; (b) any restriction or prevention of or interference with any use
of the Mortgaged Premises or any part thereof; (c) any title defect or encumbrance or
any eviction from the Mortgaged Premises or any part thereof by title, paramount or
otherwise; (d) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to Mortgagee, or any action
taken with respect to this Mortgage by any trustee or rec. eiver of Mortgagee or by any
court in any such proceeding; (e) any claim which Mortgagor has or might have
against Mortgagee; or (fl any other occurrences whatsoever, whether or not
Mortgagor shall have notice or knowledge of any of the foregoing. Mortgagor waives
all rights now and hereafter conferred by statute or othe:rwise to any abatement,
suspension, deferment, diminution or reduction of any sum secured hereby and
payable by Mortgagor.
25. Miscellaneous Provisions.
25.1. Mortgagee as Party to Litigation. If Mortgagee shall become
a party, as plaintiff or defendant, to any suit or legal proc, eeding brought by any third
party affecting the lien hereby created on the Mortgaged Premises or in any way
involving Mortgagee on account of its position as mortgagee under this Mortgage, or
26
as payee under the Note, Mortgagor shall indemnify, defend, and hold Mortgagee
harmless from all liability by reason of such litigation, including reasonable attorneys'
fees and expenses incurred by Mortgagee in any such litigation, whether or not any
such litigation is prosecuted to judgment. Mortgagor agrees to pay to Mortgagee on
demand its costs, expenses and reasonable attorneys' fees as aforesaid in any such
suit or proceeding.
25.2. Stamps or Taxes on Mortgage or Note. Mortgagor agrees to
pay the cost of any revenue, tax or other stamps now or hereafter required by law at
any time to be affixed to this Mortgage or the Note, or any tax directly or indirectly
on Mortgagee with respect to the Mortgaged Premises, the value of Mortgagor's
equity therein, or the indebtedness evidenced by the Note or secured by this
Mortgage, but excluding any franchise or bank shares tex on the income of
Mortgagee.
25.3. Construction of Terms. The words "Mortgagor" and
"Mortgagee", whenever used herein, are intended to and shall be construed to include
the respective successors and assigns of Mortgagor and Mortgagee.
25.4. Binding Obligation. All covenants, agreements,
authorizations, waivers, releases, rights, representations and warranties contained in
this Mortgage made or given by or on behalf of Mortgagor shall be binding upon its
partners and successors in title or interest and its and their respective heirs,
executors, administrators, successors and assigns, whether so expressed or not, and
all covenants, agreements, authorizations, waivers, releases, rights, representations
and warranties contained herein shall inure to the benefit of Mortgagor and
Mortgagee and to each of their respective successors and[ assigns.
25.5. Communications. All communications, notices, requests,
and demands required or permitted by this Mortgage or given pursuant to it shall be
in writing, whether or not a writing is expressly required hereby, and shall be given
by: (i) personal service, (ii) first class U.S. mail, postage prepaid, (iii) overnight
delivery service, charges prepaid, or (iv) telecopier, facsimile or other means of
electronic transmission if confirmed promptly by any of 'the methods specified in
clauses (i), (ii), or (iff) of this paragraph to the parties at the following addresses:
If to Mortgagor:
Banzhoff, Banzhoff & Witkoski, II
245 N. 254 Street
Camp Hill, PA 17011
Telecopier No.
RFC: ~oo~ ~OO1 Pae~ 6729~
27
With a copy to:
Steven C. Wilds, Esquire
Wix, Wenger & Weidner
508 North Second Street
P.O. Box 846
Harrisburg, PA 17108-0846
Telecopier No. (717) 234-4224
If to Mortgagee:
Community Banks, N.A.
150 Market Square
P. O. Box 350
Millersburg, PA 17061
Telecopier No. (717) 692-5014
With a copy to:
James A. Ulsh, Esquire
Mette, Evans & Woodside
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
Telecopier No. (717) 236-1816
or to such other address as either party may designate from time to time by notice to
the other in the manner set forth herein. All such notices and communications shall
be deemed to be given or made when delivered by personal service, two (2) days after
being deposited in the U.S. marl, or one (1) day after given to an overnight delivery
service, or upon confirmation of transmission when sent by telecopy or other means
of electronic transmission.
25.6. Covenant Running with the Land. Any act or agreement to
be done or performed by Mortgagor shall be construed as a covenant running with
the land and shall be binding upon Mortgagor and its successors and assigns as if
they had personally made such agreement.
25.7. Jurisdiction; Service of Process. Mortgagor hereby consents
to the jurisdiction of the courts of Pennsylvania and/or the United States District
Court for the Middle District of Pennsylvania in any and all actions or proceedings
arising hereunder or pursuant hereto, and irrevocably a~,~ees to service of process by
28
certified mail, return receipt requested, to its address set forth herein or such other
address as Mortgagor may direct by notice to Mortgagee.
25.8. Captions. The captions preceding the text of the sections or
subsections of this Mortgage are inserted for convenienc, e of reference only and shall
not constitute a part of this Mortgage, nor shall they in ~ny way affect its meaning,
construction or effect.
25.9. Partial InvalidiW. The invalidity or unenforceability of a
portion of this Mortgage will not affect the validity or enforceability of the remainder
hereof.
25.10. Maximum Interest. If Interest under this Mortgage or
under the Note should ever be in an amount that would violate any applicable laws
against usury, then the interest shall be calculated so that it is the maximum allowed
by law and so that it does not violate such laws. If Mortgagee has collected any
amounts of interest which would exceed such usury limit, then Mortgagee shall apply
the excess collected to reduce the sums borrowed (principal) portion of the amounts
due under the Note.
25.11. Governing Law. This Mortgage shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
25.12. Modifications. Neither this Mortgage nor the Note nor
any other Loan Document shall be modified, amended or otherwise changed except
by agreement in writing between Mortgagee and Mortgagor.
26. Receipt of Document. Mortgagor hereby acknowledges receipt of a
true and correct copy of the Mortgage at no charge.
27. Defeasance. If Mortgagor shall and does pay to Mortgagee the full
principal amount of the indebtedness secured hereby, together with all interest
accrued thereon, and keeps all the other covenants and agreements contained herein,
in the Note and in each of the other Loan Documents, all in the manner and at the
times set forth herein or in the Note, and if Mortgagor shall also pay all satisfaction
costs, including, but not limited to, reasonable attorneys' fees and the cost of
recording of a discharge of this Mortgage, then and from thenceforth this Mortgage
and the estate hereby created, granted, transferred and assigned shall cease and
become void.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be
duly executed and delivered on the date first above written.
MORTGAGOR:
REC ~oo~, ~O01 P~ 67297
BANZHOFF, BANZHOFF &
WITK~t~I, II, a
P~_ia ge~ ~nership
Gordo~ K. ]~. ,~VI.D., Partner
~6rdon K. B~zho~, gr., P~ner
~lli~ WitkosM, P~tner
~EC Book, ~:001 Prise 67298
STATE OF FLORIDA :
COUNTY OF ~( :
SS:
On this, the ~ day of April, 2001, before :me a Notary Public, the
undersigned, personally appeared GORDON K. BANZHOFF, M.D., who
acknowledged himself to be a Partner of BANZHOFF, B.~qZHOFF & WITKOSKI, II,
a Pennsylvania general partnership, and being authorized as such partner executed
the foregoing document on behalf of the partnership for the purposes therein
contained.
IN WITNESS WHEREOF, I have h, ~eunt__o set my hand and official seal
the day and year aforesaid. ~ !/~k
X'Niy Commission E,~x_p_ires: ~
COMMONWEALTH OF PENNSYLVANIA :
: SS:
COUNTY OF ~~ c'x :
On this, the\q~'~'day of April, 2001, before :me a Notary Public, the
undersigned, personally appeared GORDON K. BANZHOFF, JR., who acknowledged
himself to be a Partner of BANZHOFF, BANZHOFF & WITKOSK/, II, a
Pennsylvania general partnership, and being authorized as such partner executed the
foregoing document on behalf of the partnership for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal
the day and year aforesaid.
NOTARIAL S~AL
LISA. R. ROWE Notary Public
City of Harrisburg, Dauphin County
My Commission Expires July'~2,
N~'tary Public
My Commission F, xpires:
(SEAL)
COMMONWEALTH OF PENNSYLVANIA :
: SS:
COUNTY OF :
On this, the \C~-~ay of April, 2001, before :me a Notary Public, the
undersigned, personally appeared WILLIAM WITKOSI~[, who acknowledged himself
to be a Partner of BANZHOFF, BANZHOFF & WITKOSKI, II, a Pennsylvania
general partnership, and being authorized as such partner executed the foregoing
document on behalf of the partnership for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal
the day and year aforesaid.
NOTARIAL SEAL
LiSA R. ROWE Notary Public
City of Harrisburg, Dauphin County
My Commission Expires Juh, 12 2001
Notary Public
My Commission Expires:
(SEAL)
(~.C:DRDER DF DEEDS
LUZERNE COUNTY
FENNSYLVANIA
ZNSI'RUMERT NUMBER
RECORDED ON
~ O'), 2001
~:19:10 AM
~OK =
:'AGE: 67269
l'ot~l P~es~ 34
ERNE COUNTY $75.00
g~(OlNG FEE
WRIT TAX $0.50
ERNE COUNTY $1.00
HIVES FEE
ERNE RECORDER'S $1,~
HIVES FEE
AL $75.58
~*_~.~.*" ,,~ ',,~'~ % document ~s recorded
t ~,/J.F~t, ",~'~ Reorder of Deeds O~c~"n~
~ ~,~'~ ~
MARy K. DYSLESKi
RECORDER OF DEEDS
:256328 _1
F(EC Soon 3:001 P~se 673:00
EXHIBIT "A"
ALL THAT CERTAIN parcel of land situate in the Township of Lehman, County of Luzerne and
Commonwealth of Pennsylvania, as described on a Preliminary Plan fi>r Chestnut Ridge Associates titled
Country Crest-Major Subdivision dated October 17, 1991 as prepared by Michael J. Pasonick, Jr., Inc.,
Consulting Engineers and Surveyors, more particularly bounded and described as follows, to wit:
BEGINNING at a point on the southerly right-of-way line of S.R. 29 at the point of its intersection with
the westerly right-of-way line of S.R. 4026; thence along the right-of-way line of S.R. 4026 South six
degrees twentymine minutes forty-one seconds West (S 06° 29' 41" W) a distance of eighty-six and
forty-five hundredths (86.45) feet to a point; thence continuing along same South nineteen degrees fifty-
one minutes West (S 19° 51' W) a distance of one hundred sixty-eight and thirty-three hundredths
(168.33) feet to a point at line of lands now or formerly of Newberry (Deed Book 1597, Page 646); thence
along said lands now or formerly of Newberry the following three (3) courses and distances: 1) North
sixty-eight degrees thirty minutes forty-two seconds West (N 68° 30' 42" W) a distance of one hundred
fifty and zero hundredths (150.00) feet to a point; 2) South twenty-one degrees twenty-nine minutes
eighteen seconds West (S 21° 29' 18" W) a distance of one hundred and zero hundredths (100.00) feet to
a point; and 3) South sixty-eight degrees thirty minutes forty4wo seconds East (S 68° 30' 42" E) a
distance of one hundred fifty and zero hundredths (150.00) feet to a point on the westerly right-of-way
line of S.R. 4026; thence along said right-of-way South twenty degrees forty-two minutes thirty-five
seconds West (S 20° 42' 35" W) a distance of three hundred twenty and seventeen hundredths (320.17)
feet to a point; thence continuing along same South twenty-three degrees sixteen minutes forty-nine
seconds West (S 23° 16' 49" W) a distance of ten and two tenths (10.21) feet to a point at line of lands now
or formerly of Verfin (Deed Book 1675, Page 485); thence along said lands now or formerly of Verfin the
following two (2) courses and distances: 1) North sixty-nine degrees twenty-two minutes eleven seconds
West (N 69° 22' 11" W) a distance of one hundred forty-nine and sixty-one hundredths (149.61) feet to a
point; and 2) South twenty degrees thirty-seven minutes forty-nine seconds West (S 20° 37' 49" W) a
distance of one hundred twenty-eight and eighty hundredths (128.80) feet to a point at the northerly right-
of-way line of Township Road 684; thence along said right-of-way line North thirty-six degrees twenty-
five minutes eleven seconds West (N 36° 25' 11" W) a distance of twc, hundred twenty-two and seventy-
four hundredths (222.74) feet to a point at line of lands now or formerly of Kravableski; thence along said
lands now or formerly of Kravableski the following three (3) courses and distances: i) North fifty-seven
degrees thirty-seven minutes forty-nine seconds East (N 57° 37' 49" Eli a distance of one hundred sixty-
seven and zero hundredths (167.00) feet to a point; 2) North eight degrees twenty-three minutes eleven
seconds West (N 08° 23' 11" W) a distance of two hundred twenty-eight and seventy hundredths (228.70)
feet to a point; and 3) South fifty-seven degrees thirty-seven minutes forty-nine seconds West (S 57° 37'
49" W) a distance of two hundred sixty and zero hundredths (260.00) leet to a point at the northerly right-
of-way line of Township Road 684; thence along said right-of-way line the following four (4) courses and
distances: 1) North thirty-two degrees twenty-two minutes eleven seconds West (N 32° 22' 11" W) a
distance of two hundred sixty-four and thirty hundredths (264.30) feet to a point; 2) North twenty-six
degrees fifty-four minutes eleven seconds West (N 26° 54' 11" W) a distance of seventy-six and fifty-five
hundredths (76.55) feet to a point; 3) North ten degrees twenty-six minutes eleven seconds West (N 10°
26' 11" W) a distance of seventy-six and fifty-five hundredths (76.55) feet to a point; and 4) North five
degrees thirty-three minutes twenty-seven seconds West (N 05° 33' 27" W) a distance of eighty-three and
six hundredths (83.06) feet to a point at line of lands now or formerly of the Most Reverend Ktonowski
(Deed Book 1585, Page 1140); thence along said lands now or formerly of Klonowsld North fifty-seven
degrees fifty-one minutes East (N 57° 51' E) a distance of three hundred thirteen and sixty-nine
hundredths (313.69) feet to a point at lands now or formerly of Edward Strenfel; thence along said lands
I~EC I?,ook :3001 Pl~se 67:301
now or formerly of Strenfel North sixty-five degrees thirty-three minutes East (N 65° 33' E) a distance of
thirty-five and zero hundredths (35.00) feet to a point at lands now or forrrierly of Radginski (Deed Book
2160, Page 54); thence along lands now or formerly of Radginski the following four (4) courses and
distances: 1) South thirty-six degrees twenty-seven minutes East (S 136° 27' E) a distance of three
hundred and zero hundredths (300.00) feet to a point; 2) North twenty-eight degrees eleven minutes
twenty-two seconds East (N 28° 11' 22" E) a distance of one hundred thirty-five and twenty-one
hundredths (135.21) feet to a point; 3) South fifty-eight degrees twelve minutes fifty-two seconds East (S
58° 12' 52" E) a distance of eighty-one and twenty hundredths (81.21)) feet to a point; and 4) North
twenty-seven degrees twenty minutes thirty-seven seconds East (N 2'7° 20' 37" E) a distance of twenty-
eight and sixty-three hundredths (28.63) feet to a point at the southerly right-of-way line of S.R. 29;
thence along said right-of-way line the following three (3) courses and distances: 1) South fifiy-four
degrees two minutes thirty-seven seconds East (S 54° 02' 37" E) a distance of ninety-one and thirty
hundredths (91.30) feet to a point; 2) South fifty-nine degrees fifty-eight minutes thirty-five seconds East
(S 59° 58' 35" E) a distance of eighty-six and twenty hundredths (86.20) feet to a point; and 3) South
sixty-five degrees one minute twenty-six seconds East (S 65° 01' 26'" E) a distance of eighty-six and
twenty hundredths (86.20) feet to a point at the westerly right-of-way line of S.R. 4026, the place of
BEGINNING.
BEING Lot No. 1 (1.003 acres), Lot No. 2 (1.031 acres), Lot No. 3 (1.2,967.3 square feet) and Lot No. 4
(7.260 acres) as shown on the Preliminary Plan referenced aforesaid.
BEING KNOWN AS Silkworth Mobile Home Park a/Ida Country Crest Mobile Home Park.
BEING THE SAME PREMISES which Robert E. Goodling, an adult individual, by deed dated April
,2001 and intending to be recorded herewith in the Luzeme County Recorder of Deeds Office
granted and conveyed unto Banzhoff, Banzhoff & Witkoski, 1I, a Pennsylvania general partnership,
Mortgagor herein.
ix,' GF
C~.~T!!!ED PR£]PE~TY ID~-~NTIFICATI~'~ NUMBER
TRANSFER
M~ppinQ Ol~rk
REC Boo~, 2:001 P~e ~7302
ASSIGNMENT OF RENTS AND, I,F, ASES
THIS ASSIGNMENT, made this !~ ,Jay of April, 2001 from
BANZHOFF, BANZHOFF & WITKOSKI, II, a general ]partnership organized and
existing under the laws of the Commonwealth of Pennsylvania, with an address of
245 N. 25~ Street, Camp Hill, PA 17011 (hereinafter referred to as "Assignor") to
COMMLrNITY BANKS, N.A., a national banking association having offices located at
150 Market Square, Millersburg, PA 17061 ("Assignee").
WITNESSETH:
WHEREAS, Assignor is the owner of certain real estate located in
Lehman Township, Luzerne County, Pennsylvania, known as Country Crest mobile
home park more fully described on Exhibit "A" which is attached to and made a part
of a certain Mortgage ("Mortgage") of even date herewit]h, to be recorded in the Office
of the Recorder of Deeds of Luzerne County, Pennsylvania, by and between Assignor
as Mortgagor and Assignee as Mortgagee (the "Premises"); and
WHEREAS, Assignor has executed and delivered to Assignee as
Borrower a certain Promissory Note in the aggregate principal amount of $600,000 of
of even date herewith (the "Note") together with all other documents executed by
the Borrower and delivered to the Assignee in connection with or securing the Note
(the "Loan Documents"); and
WHEREAS, Assignor is desirous of assigning to Assignee, as additional
security for the Note all rentals and other monies due and to become due to Assignor
as Lessor under any and all existing and future leases or subleases ("Leases") of the
Premises, any part thereof or any improvements now existing or hereafter
constructed thereon.
NOW, THEREFORE, in consideration of the making of the loans
evidenced by the Note, and in further consideration of the Premises, and intending to
be legally bound, Assignor hereby covenants, promises and agrees as follows:
1. Assignor hereby sells, assigns, trans:?ers and sets over unto
Assignee, its successors and assigns, all of the rents, income receipts, revenues, issues
and profits now due or which may hereafter become due under the Leases or any
extensions or renewals thereof and any guaranties or se~ity agreements which may
now or hereafter exist with respect to tenants' obligations under such leases, as well
as all monies due and to become due to Assignor under the Leases for services,
materials or installations supplied, whether or not the same were supplied under the
terms of the Leases and any sums to which Assignor may become entitled in any
court proceeding involving the bankruptcy, insolvency or reorganization of tenants
REC Mok ~OOi F'{19e
and payments made in lieu of rent, together with any and all rights and remedies
which Assignor may have against the tenants under the Leases or others in
possession of the Premises or any part thereof for the collection or recovery of monies
so assigned, TO HAVE AND TO HOLD the same unto Assignee, its successors or
assigns, for the purposes herein recited.
2. Assignor hereby represents, warrants and agrees that:
(a) Assignor has the right, power and capacity to make this
Assignment and that no person, firm or corporation other than the Assignor
has any right, title or interest in or to monies due or to become due under the
Leases.
(b) Assignor will, at Assignor's cost and expense, perform and
discharge all of the obligations and undertakings of the landlord under the
Leases. Assignor will enforce or secure the performance of each and every
obligation and undertaking of the tenant under the Leases and will appear in
and prosecute or defend any action or proceeding arising under or in any
manner connected with the Leases or the obligations and undertakings of the
tenants thereunder.
(c) Assignor will not, without Assignee's prior written consent, (i)
pledge, transfer or mortgage or otherwise encumber or assign future payments
of rentals; (ii) waive, condone or in any manner release or discharge any of the
tenants under the Leases; (iii) disaffirm, cancel, terminate or consent to any
surrender of any of the Leases; (iv) modify, extend or in any way alter the
terms of any of the Leases so as to reduce or diminish or postpone the
payments of rentals and other sums due thereunder; or (v) accept any
payments of rentals in advance, other than as required to be paid in advance
by the terms of any rental agreement.
(d) Any default by Assignor in the perfi)rmance of any obligation or
undertaking hereunder, which default remains uncured thirty (30) days after
prior written notice from Assignee to Assignor, shall constitute and be deemed
to be a default under the Note and the Mortgage so as to entitle Assignee to
exercise any and all of the rights and remedies thereunder, including the right
to declare all sums payable under the Note immediately due and payable
without notice or demand.
3. Nothing in this Assignment shall be deemed or construed to
constitute Assignee as a mortgagee in possession of the Premises, nor to obligate
Assignee to take any action hereunder or to incur expenses or perform or discharge
any obligation, duty or liability hereunder or under the Leases.
2
REC t~oot: 3OO1 ?a~e &7~25
4. Until the Loan shall have been paid[ in full, Assignor will, for the
purposes hereof, transfer and assign to Assignee any and all further rentals and
monies due or to become due Assignor under the Leases upon all or any part of the
Premises; and Assignor will from time to time execute and deliver unto Assignee
upon demand any and all writings that Assignee may deem necessary or desirable to
carry out the purpose and intent hereof, or to enable Assignee to enforce any right or
rights hereunder.
5. This Assignment is present, absolute and unconditional and,
immediately upon the execution hereof, gives Assignee the right to collect the rents
and to apply them in payment of all sums payable under the Note or any other Loan
Document. Notwithstanding the foregoing, so long as there is no Event of Default
under the Note or any other Loan Document, Assignor shall have the license to
collect for its own account all rentals and other monies assigned hereunder. From
and after the occurrence of such a default (whether or not Assignee shall have
exercised its option to declare the Loan immediately due and payable), all rentals and
other monies assigned hereunder shall be paid directly to Assignee. Assignee may
notify the tenants under the Leases or any other parties in possession of the Premises
or any part thereof to pay all monies due and to become due to Assignor directly to
Assignee, for which this Assignment shall be sufficient warrant. Monies so paid to
Assignee shall be applied by Assignee, at its uncontrolled discretion, to the payment
of the costs and expenses of the operation of the Premises and to the payment of
current interest and/or principal due under the law, all in such order and in such
respective amounts as Assignee shall from time to time determine.
6. This Assignment is given for the purpose of securing performance
by Assignor of all of its obligations under the Note and accordingly, upon payment in
full of all indebtedness secured by the Note, and discharge of all of Assignor's other
obligations under the Note, as evidenced by the recording of an instrument of
satisfaction of the Mortgage (without the recording of another mortgage in favor of
Assignee affecting the Premises), this Assignment shall automatically become null
and void.
7. The failure of Assignee to avail itself of any of the terms,
covenants and conditions hereof shall not be construed or deemed to be a waiver of
any rights or remedies hereunder. Assignee shall have 'the full right, power and
authority to enforce this Assignment or any of the terms, covenants or conditions
hereof at any time or times that the Assignee shall deem fit.
8. All communications, notices, requests, and demands required or
permitted by this Assignment or given pursuant to it sb~ll be in writing, whether or
not a writing is expressly required hereby, and shall be given by: (i) personal service,
(ii) first class U.S. mail, postage prepaid, (iii) overnight delivery service, charges
RE(: Booi~ 3001 ?~e &732,~,
3
prepaid, or (iv) telecopier, facsimile or other means of electronic transmission if
confirmed promptly by any of the methods specified in clauses (i), (ii), or (iii) of this
paragraph to the parties at the following addresses:
If to Assignor:
Banzhoff, Banzhoff & Witkoski, II
245 N. 25~ Street
Camp Hill, PA 17011
With a copy to:
Steven C. Wilds, Esquire
Wix, Wenger & Weidner
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
If to Assignee:
Community Banks, N.A.
150 Market Square
Millersburg, PA 17061
or to such other address as either party may designate i¥om time to time by notice to
the other in the manner set forth herein. All such notices and communications shall
be deemed to be have been given or made when delivered by personal service, two (2)
days after being deposited in the U.S. mail, or one (1) day after given to an overnight
delivery service, or upon confirmation of transmission when sent by telecopy or other
means of electronic transmission.
9. This Assignment shall be binding upon Assignor, its successors
and assigns, and shall inure to the benefit of Assignee and its successors and assigns.
IN WITNESS WHEREOF, Assignor has duly executed this Assignment
the day and year first above written.
Witness
EEC Eook 3001 P~se 67327
' Will'am Witkosld, General Partner
RE(:: Book :3001
STATE OF FLORIDA
COUNTY OF ,~r
SS
On this, the~.~ day of April, 2001, before me, a Notary Public, the
undersigned officer, personally appeared GORDON K. BANZHOFF, M.D., an adult
individual, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that he executed the same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(SEAL)
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF ~
On this, theY'd- day of April, 2001, before me, a Notary Public, the
undersigned officer, personally appeared GORDON K. BANZHOFF, JR., an adult
individual, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that he executed the same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set :my hand and official seal.
NOTARIAL SEAL
LISA R, ROWE, Notary Public
City of Harrisburg, Dauphin County
, M~/Commission Expires July12, 2001
Notary Public
My Comu~ission Expires:
:256326 _1
i~EC Book :~001 Pr~se 67329
(SEAL)
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF
;
On this, th~C~clay of April, 2001, before me, a Notary Public, the
undersigned officer, personally appeared WILLIAM WITKOSKI, an adult individual,
known to me (or satisfactorily proven) to be the person whose name is subscribed to
the within instrument, and acknowledged that he executed the ss~ne for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
~<EL:ORDER DF DEEDS
LUZERNE COUNTY
PENNSYLVANIA
iNSTRUMENT N~BER
5372~62
RECORDED ON
027 200i
9:25:10 AM
PSGE:67324
¥otal P~es: ~
I NOTARIAL SEAL
LiSA R. ROWE, Notary Public
City of Harrisburg, Dauphin County,
·. My Commission Ex._pire_.~s ;Jul_,i~_.2,_~.60_
Notary Public
My Comznission Expires:
(SEAL)
:ZERNE COUNTY $23,00
:DRDING FEE
~ WRIT TAX $0.50
;ZERNE CDUN1Y $1.00
~CRIVES FEE
~ZERNE RECORDER'S $1.gO
(CHIVES FEE
$25,~U
I hereby CERTIFY that this
document m recorded m the
Reorder of Deeds Office of
Luzeme Count, Pennsylvama.
MARY K. DYS~S~
RECORDER OF DEEDS
:256326 _1
EXHIBIT "A"
ALL TI/AT CERTAIN parcel of land situate in the Township of Letunan, County of Luzeme and
Commonwealth of Pennsylvania, as described on a Preliminary Plan for Chestnut Ridge Associates titled
Country Crest-Major Subdivision dated October 17, 1991 as prepared by Michael J. Pasonick, Jr., Inc.,
Consulting Engineers and Surveyors, more particularly bounded and described as follows, to wit:
BEGINNING at a point on the southerly fight-of-way line of S.R. 29 at the point of its intersection with
' the westerly rlghi-of-way line of S.R. 4026; thence along the right-of-way line of S.R. 4026 South six
degrees twenty-nine minutes forty-one seconds West (S 06° 29' 41" W) a distance of eighty-six and
forty-five hundredths (86.45) feet to a point; thence continuing along :same South nineteen degrees fifty-
one minutes West (S 19° 51' W) a distance of one hundred sixty-eight and thirty-three hundredths
(168.33) feet to a point at line of lands now or formerly of Newberry (Deed Book 1597, Page 646); thence
along said lands now or formerly of Newberry the following three (3) courses and distances: 1) North
sixty-eight degrees thirty minutes forty-two seconds West (N 68° 30' 42" W) a distance of one hundred
fifty and zero hundredths (150.00) feet to a point; 2) South twenty-one degrees twenty-nine minutes
eighteen seconds West (S 21° 29' 18" W) a distance of one hundred and zero hundredths (100.00) feet to
a point; and 3) South sixty-eight degrees thirty minutes forty-two seconds East (S 680 30' 42" E) a
distance of one hundred fifty and zero hundredths (150.00) feet to a point on the westerly right-of-way
line of S.R. 4026; thence along said right-of-way South twenty degrees forty-two minutes thirty-five
seconds West (S 20° 42' 35" W) a distance of three hundred twenty and seventeen hundredths (320.17)
feet to a point; thence continuing along same South twenty-three degrees sixteen minutes forty-nine
seconds West (S 23° 16' 49" W) a distance of ten and two tenths (10.2) feet to a point at line of lands now
or formerly of Verfin (Deed Book 1675, Page 485); thence along said lands now or formerly of Verfin the
following two (2) courses and distances: I) North sixty-nine degrees twenty-two minutes eleven seconds
West (N 69° 22' 11" W) a distance of one hundred forty-nine and sixty-one hundredths (149.61) feet to a
point; and 2) South twenty degrees thirty-seven minutes forty-nine seconds West (S 20° 37' 49" W) a
distance of one hundred twenty-eight and eighty hundredths (128.80) f~et to a point at the northerly right-
of-way line of Township Road 684; thence along said right-of-way line North thirty-six degrees twenty-
five minutes eleven seconds West (N 36° 25' i1" W) a distance of two hundred twenty-two and seventy-
four hundredths (222.74) feet to a point at line of lands now or formerly of Kravableski; thence along said
lands now or formerly of Kravableski the following three (3) courses and distances: 1) North fifty-seven
degrees thirty-seven minutes forty-nine seconds East (N 57° 37' 49" E) a distance of one hundred sixty-
seven and zero hundredths (167.00) feet to a point; 2) North eight degrees twenty-three minutes eleven
seconds West (N 08° 23' 11" W) a distance of two hundred twenty-eight and seventy hundredths (228.70)
feet to a point; and 3) South fifty-seven degrees thirty-seven minutes forty-nine seconds West (S 57° 37'
49" W) a distance of two hundred sixty and zero hundredths (260.00) feet to a point at the northerly right-
of-way line of Township Road 684; thence along said right-of-way line: the following four (4) courses and
distances: i) North thirty-two degrees twenty-two minutes eleven seconds West (N 32° 22' 11" W) a
distance of two hundred sixty-four and thirty hundredths (264.30) feet to a point; 2) North twenty-six
degrees fifty-four minutes eleven seconds West (N 26° 54' 1 i" W) a distance of seventy-six and fifty-five
hundredths (76.55) feet to a point; 3) North ten degrees twenty-six minutes eleven seconds West (N 10°
26' i 1" W) a distance of seventy-six and fifty-five hundredths (76.55) feet to a point; and 4) North five
degrees thirty-three minutes twenty-seven seconds West (N 05° 33' 27" W) a distance of eighty-three and
six hundredths (83.06) feet to a point at line of lands now or formerly of the Most Reverend Klonowski
(Deed Book 1585, Page 1140); thence along said lands now or formerly of Klonowski North fifty-seven
degrees fifty-one minutes East (N 57° 5 I' E) a distance of three hundred thirteen and sixty-nine
hundredths (313.69) feet to a point at lands now or formerly of Edward Strenfel; thence along said lands
now or formerly of Strenfel North sixty-five degrees thirty-three mim,tes East (N 65° 33' E) a distance of
thirty-five and zero hundredths (35.00) feet to a point at lands now or formerly of Radginski (Deed Book
2160, Page 54); thence along lands now or formerly of Radginsld the following four (4) courses and
distances: 1) South thirty-six degrees twenty-seven minutes East (S 36° 27' E) a distance of three
hundred and zero hundredths (300.00) feet to a point; 2) North twenty-eight degrees eleven minutes
twanty-two seconds East (N 28° 1 I' 22" E) a distance of one hundred thirty-five and twenty-one
hundredths (135.21 ) fe~t to a point; 3) South fifty-eight degrees twelve minutes fifty-two seconds East (S
58° 12' 52" E) a distance of eighry-one and twenty hundredths (81.20) feet to a point; and 4) North
t~enty?even degrees twenty minutes thirty-seven seconds East (Iq 27_° 20'. 37"..E,)a dis~ce of,twenty-~,..
~h~ ~d'~i~t~ hundredths (28.63) feet to ~ i~oint'at th~'~'~uthe~:lY figlit/~f'~i~"li~'~f S.R. 2~i ' ~'~
thence along said fight-of-way line the following three (3) courses and distances: 1) South fifty-four
degrees two minutes thirty-seven seconds East (S 54° 02' 37" E) a distance of ninety-one and thirty
hundredths (91.30) feet to a point; 2) South fifty-nine degrees fifty-eight minutes thirty-five seconds East
(S 59° 58' 35" E) a distance of eighty-six and twenty hundredths (86.20) feet to a point; and 3) South
sixty-five degrees one minute twenty-six seconds East (S 65° 01' 26" E) a distance of eighty-six and
twenty hundredths (86.20) feet to a point at the westerly fight-of-way line of S.R. 4026, the place of
BEGINNING.
BEING Lot No. 1 (1.003 acres), Lot No. 2 (1.031 acres), Lot No. 3 (1:2,967.3 square feet) and Lot No. 4
(7.260 acres) as shown on the Preliminary Plan referenced aforesaid.
BEING KNOWN AS Silkworth Mobile Home Park a/k/a Country Crest Mobile Home Park.
BEING THE SAME PREMISES which Robert E. Goodling, an adult individual, by deed dated April
,2001 and intending to be recorded herewith in the Luzeme County Recorder of Deeds Office
granted and conveyed unto Banzhoff, Banzhoff & Witkoski, 1I, a Penrtsylvania general partnership,
Mortgagor herein.
May 15, 2002
Mr. Gordon Banzhoff
Banzhoff, Banzhoffand Witkowski
245 N. 25t~ St.
Camp Hill, Pa. 17011
Dear Mr. Banzhoff:
On April 4, 2002 Community Banks demanded payment for the outstanding loans fi.om
the Banzhoff, Baanzhoff and Witkowski partnership. Although some payments were
received for interest due and owing on the loans, we have ntot received any news on your
progress towards paying loan # 45011210 in full. Loan # 45011211 is expected to be paid
fi'om the proceeds of the Penn Dot condemnation proceedings within 30 days. Unless we
receive some indication that refinancing or payment in full x~ll be received for the
Country Crest MI-I? within 5 days, we will begin legal action to collect this mount fi.om
the partnership and guarantors. Please call me prior to May 20, 2002 to inform me of
your progress.
Sincerely,
Raymond Granger
Special Assets
Fodxibit "D"
Robert E. Goodling
258 West Baltimore Street
Carlisle, PA 17013
(junior lien holder)
Ronald Strohl and/or
Current Occupant(s)
6 Country Crest Lane
Hunlock Creek, PA 18621
Charles Senlms and/or
Current Occupant(s)
8 Country Crest Lane
Hunlock Creek, PA 18621
Duncan Goss and/or
Current Occupant(s)
10 Country Crest Lane
Hunlock Creek, PA 18621
Jamie West and/or
Current Occupant(s)
15 Country Crest Lane
Hunlock Creek, PA 18621
Charles Smith and/or
Current Occupant(s)
17 Country Crest Lane
Hunlock Creek, PA 18621
Tracy Snyder and/or
Current Occupant(s)
26 Country Crest Lane
Hunlock Creek, PA 18621
Robert Hale and/or
Current Occupant(s)
30 Country Crest Lane
Hunlock Creek, PA 18621
Mr. and/or Ms. Evans and/or
Current Occupant(s)
47 Country Crest Lane
Hunlock Creek, PA 18621
Scott Karcheski and/or
Current Occupant(s)
3 Country Crest Lane
Hunlock Creek, PA 18621
Linda Berry and/or
Current Occupant(s)
P. O. Box 227
Hunlock Creek, PA 18621
Carl Souder and/or
Current Occupant(s)
P. O. Box 203
Hunlock Creek, PA 18621
Loft Ma~irt and/or
Current Occupant(s)
14 Country Crest Lane
Hunlock Creek, PA 18621
Patrick Cavanaugh and/or
Current Occupant(s)
16 Country Crest Lane
Hunlock Ca~eek, PA 18621
Florence Gower and/or
Current Occupant(s)
21 Country Crest Lane
Hunlock Creek, PA 18621
Vincent McTaque and/or
Current Occupant(s)
23 Country Crest Lane
Hunlock Creek, PA 18621
Paula Martin and/or
Current Occupant(s)
45 Country ,Crest Lane
Hunlock Creek, PA 18621
Rita Snell mad/or
Current Occupant(s)
42 Country Crest Lane
Hunlock Creek, PA 18621
Exhibit "E"
Barry Lathrop and/or
Current Occupant(s)
51 Country Crest Lane
Hunlock Creek, PA 18621
Frank Ide and/or
Current Occupant(s)
P. O. Box 194
Hunlock Creek, PA 18621
Eleanor Hontz and/or
Current Occupant(s)
50 Country Crest Lane
Hunlock Creek, PA 18621
Gerald Harowitz and/or
Current Occupant(s)
65 Country Crest Lane
Hunlock Creek, PA 18621
Kevin Barry and/or
Current Occupant(s)
69 Country Crest Lane
Hunlock Creek, PA 18621
John Gorka and/or
Current Occupant(s)
62 Country Crest Lane
Hunlock Creek, PA 18621
Cheryl Bender and/or
Current Occupant(s)
84 Country Crest Lane
Hunlock Creek, PA 18621
Mr./Ms. Bender and Mr./Ms. Brucker
and/or Current Oeoupant(s)
86 Country Crest Lane
Hunlock Creek, PA 18621
James Slabinski and/or
Current Occupant(s)
90 Country Crest Lane
Hunlock Creek, PA 18621
Eric Morgan and/or
Currem Occupant(s)
46 Country Crest Lane
Hunlock Creek, PA 18621
Sandra Cook and/or
Current Occupant(s)
57 Country Crest Lane
Hunlock Creek, PA 18621
Mr. and/or Ms. Harris and/or
Current Occupant(s)
61 Country' Crest Lane
Hunlock C:reek, PA 18621
Barbara Etfinger and/or
Current Occupant(s)
66 County Crest Lane
Hunlock Creek, PA 18621
John McElwee and/or
Current Occupant(s)
71 Country Crest Lane
Hunlock Creek, PA 18621
Mr./Ms. Harbinger and Mr./Ms. Finogle
and/or Current Occupant(s)
64 Country Crest Lane
Hunlock Creek, PA 18621
H. Alar and/or
Current Occupant(s)
68 Country Crest Lane
Hunlock Creek, PA 18621
George BanIleson and/or
Current Occupant(s)
70 Country Crest Lane
Hunlock Creek, PA 18621
Dave Harris and/or
Current Occupant(s)
1 Deer Lane,
Hunlock Creek, PA 18621
Bernard Dick and/or
Current Occupant(s)
2 Deer Lane
Hunlock Creek, PA 18621
Mr./Ms May and Mr./Ms. Stonier
and/or Current Occupant(s)
7 Deer Lane
Hunlock Creek, PA 18621
Jack Pierce and/or
Current Occupant(s)
11 Deer Lane
Hunlock Creek, PA 18621
Robert Lamoreaux and/or
Current Occupant(s)
104 3ra Lane
Hunlock Creek, PA 18621
Kathi Mclntosh and/or
Current Occupant(s)
110 3rd Lane
Hunlock Creek, PA 18621
Current Occupant(s)
20 Country Crest Lane
Hunlock Creek, PA 18621
Current Occupant(s)
48 Country Crest Lane
Hunlock Creek, PA 18621
Current Occupant(s)
82 Country Crest Lane
Hunlock Creek, PA 18621
Current Occupant(s)
5 Deer Lane
Hunlock Creek, PA 18621
Current Occupant(s)
102 3~a Lane
Hunlock Creek, PA 18621
Jeanette Barsh and/or
Current Occupant(s)
3 Deer Lmle
Hunlock Creek, PA 18621
Earl Whiteley and/or
Current Occupant(s)
6 Deer Lane
Hunlock Creek, PA 18621
Harold Wl~dtem/re and/or
Current Occupant(s)
12 Deer Lane
Hunlock Creek, PA 18621
Cindy Stucker and/or
Current Occupant(s)
106 3~d Lane
Hunlock Creek, PA 18621
Robert Miller and/or
Current Occupant(s)
36 Count~' Crest Lane
Hunlock Creek, PA 18621
Current Occupant(s)
32 Country Crest Lane
Hunlock Creek, PA 18621
Current Oc eupant(s)
54 Country Crest Lane
Hunlock Creek, PA 18621
Current Occupant(s)
4 Deer Lane
Hunlock Creek, PA 18621
Current Occupant(s)
8 Deer Lane
Hunlock Creek, PA 18621
Current Oc{mpant(s)
34 Country Crest Lane
Hunlock Creek, PA 18621
Country Crest Mobile Home Park
Historical income & Expense
income
Rental Income
Water & Sewer Fees
Cash Discounts
Late Fees
Pet Fees
Other Income
Total Income
Expenses
Advertising
Court Costs
Management Fees
Insurance
Water & Sewer
Maintenance
Miscellaneous
Snow Removal
Eelctric
Real Estate Taxes
Total Expense
Net Operating Income
Proposed Annual Debt Service
Proposed Debt Coverage
Proposed Annual Debt Service - Seller Note
Proposed Aggregate Debt Service
Proposed Aggregate Debt Coverage
Average Income Per Pad Per Month
12/31/00
$134,019
$9,765
$0
$2,850
$o
$1,465
$148,099
$1,430
$48O
$2,160
$1,264
$19,396
$2,364
$898
$1,975
$5,382
$4,977
$4O,326
$107,773
$64,772
1.664
$6,999
$71,771
1.502
$217
12/31/99
$127,991
$o
-$9,690
$1,200
$1,940
$2,519
$123,960
$2,759
$386
$6,543
$827
$21,088
$2,421
$798
$368
$5,833
$7,043
$48,066
$75,894
$64,772
1.172
$6,999
$71,771
1.057
$181
12/31/98
$116,966
$0
$o
$5,870
$2,320
$1,300
$126,456
$1,395
$o
$o
$679
$20,549
$8,938
$8,195
$o
$o
$6,824
$46,580
$79,876
$64,772
1.233
$6,999
$71,771
1.113
$185
003 15:22 FAX 888 821 4115 uommunlcy Daii½b
Banks
June 11, 2003
Gordon Banzhoff
245N. 25a Stre~
Camp Hffi, Pa. 17011
RE: Country Crest Rents
Dear Mr. Banzhoff
I have heen receiving numerous phone calls fimm tenants in fl~e Country Crest Mobile
Home Park that they have received letters from you directing them to pay their rents to
you. AS you know, the Bank exercised its rights under the Assignment of Leases and
Rents and have Property Management Inc. collecting and trax:king rental payments. As
the owner of the park you my still pressure those delinquent accounts to pay but the
payments must go to PMI. I expect any rents that have been collected by you to be
forwarded to me immediately. Unless you halt this practice taste Bank will take any action
available to it, whether it be civil, criminal or both.
-~t°ndviee Pres~
Special Assets
cc: Ge, off Shuff, Esq.
Gordon Banzhoff, MD
William Witkoski
P,O. Box 350 - Millersburg, PA 17061 . Phone 1-800-331-8362
Exhibit '~"
COMMUNITY BANKS,
ffk/a COMMUNITY BANKS, N.A.,
Plaintiff
VS.
GORDON K. BANZHOFF, M.D.,
GORDON K. BANZHOFF, JR., and
WILLIAM WlTKOSKI, individually and
as partners t/d/b/a BANZHOFF, BANZHOFF
& WlTKOSKI, II, a General Partnership,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET No.
CIVIL ACTION - EQUITY DOCKET
PRELIMINARY INJUNCTION
PREVIOUSLY ASSIGNED TO: N/A
CERTIFICATE OF SERVICE
AND NOW, thisO/~ day of ._),0'o,_O.~ 2003, I, Malthew J. Eshelman, Esquire, of
the firm of Saidis, Shuff, Flower and Lindsay, hereby certify that I this day served a true and correct
copy of Petition for Preliminary Injunction upon the parties listed below via United States Mail,
postage prepaid, addressed as follows:
Gordon K. Banzhoff, M.D.
37 Tuscany Court
Camp Hill, PA 17011
Gordon K. Banzhoff, Jr.
245 North 25th Street
Camp Hill, PA 17011
William Witkoski
417 Country Club Road
Camp Hill, PA 17011
Bahnzoff, Bahnzoff & Witkowski
245 N. 25th Street
Camp Hill, PA 17011
Wix,, Wenger & Weidner
P.O. Box 845
Harrisburg, PA 17108-0845
(courtesy copy)
Respectfully submitted,
SAIDIS, SHUI~F
By: ~~
Matthew J. Es
Geoffrey S. Sh
i .~ER & LINDSAY
.
~lman, Esquire ID #72655
~ff, Esquire ID #24848
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attomeys for Plaintiff, Community Banks
COMMUNITY BANKS,
f/k/a COMMUNITY
BANKS, N.A.,
Plaintiff
GORDON K. BANZHOFF,
M.D., GORDON K.
JR., and WILLIAM WITKOSKI,
individually and as partners
t/d/b/a BANZHOFF,
BANZHOFF & WITKOSKI, II,
a General Partnership,
Defendants
IN THE COURT OF' COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 03-3074 EQUITY TERM
ORDER OF COURT
AND NOW, this 2nd day of July, 2003, upon consideration of Plaintiff's petition
for an ex parte preliminary injunction, it is hereby ordered and directed as follows:
1. Defendants are enjoined from collecting, or attempting to
collect, any rents from tenants of the premises known as Country
Crest Mobile Home Park, Lehman Township, Pennsylvania, who are
further described in Exhibit "E" of the Plaintiff's Petition for
Preliminary Injunction;
2. Such rents as are collected by Defendants shall be deposited
with the Cumberland County Prothonotary pending further order of
court.
This ex parte preliminary injunction shall not be.effective until Plaintiff has filed a
bond or deposited legal tender with the Cumberland County Prothonotary in the amount
of $25,000.00 in accordance with Pennsylvania Rule of Civil Procedure 1531(b). A
hearing on whether this injunction should be dissolved, continued or modified is
scheduled for Monday, July 7, 2003, at 1:30 p.m., befc,re the Honorable George E.
Hoffer, Courtroom No. 3, Cumberland County Courthouse, Carlisle, Pennsylvania.
Plaintiff's counsel shall promptly provide notice .of this hearing to Defendants.
BY THE COURT,
/4~atthew J. Eshelman, Esq.
Geoffrey S. Shuff, Esq.
2109 Market Street
Camp Hill, PA 17011
Attorneys for Plaintiff
:rc
esley Ola~ ~
COMMUNITY BANKS,
f/Fda COMMUNITY BANKS, N.A.,
Plaintiff
VS.
GORDON K. BANZHOFF, M.D., et al.,
Defendants
: IN THE COURT OF COIVlMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: DOCKET No. 03 - 3074
:
: CWIL ACTION - EQUITY DOCKET
on Defendants Gordon K. Banzhoff, M.D, Gordon~i
Banzhoff, Jr., and William Witkoski,
individually and t/dgo/a Banzhoff, Banzhoff & Witkoski, II, a General Parmership, of Plaintiff's
complaint in equity, petition for preliminary injunction, and Order of Court dated July 2, 2003, and
after hearing and consideration thereof,
IT IS ORDERED AND DECREED that the preliminary injunction issued July 2, 2003, be,
and the same is, continued until the final hearing of this case or until further order of this Court.
The security previously entered by the Plaintiffis also continued.
The Plaintiff is specifically authorized to notify the tenants of the premises known as
Country Crest Mobile Home Park, Lehman Township, Pennsylvania, who are further described in
Exhibit "E" of the Plaintiff's Petition for Preliminary Injunction should refxain fitom paying any
rents to Defendant and should instead pay their rents to Plaintiff, Community Banks, its agents,
successors or assigns, as the Plaintiff may in writing direct.
BY THE COURT:
~ COMMUNITY BANKS,
f/kda COMMUNITY BANKS, N.A.,
Plaintiff
VS.
GORDON K. BANZHOFF, M.D., et al.,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: DOCKET No. 03 - 3074
:
: CIVIL ACTION- EQLrITY DOCKET
: PREVIOUSLY' ASSIGNED TO: J. OLER
RETURN OF SERVICE
ANONOW, this :~ dayof ~)k7 2003, I, TeresaM. Hoover, beinga
competent adult above eighteen years of age, hereby certify that, pursuant to Pa.R.C.P. No. 400(b), I
served a tree and correct copy of the Complaint for Injunctive Relief and of the Order of Court
dated July 2, 2003 in the above-captioned matter on the 2nd day of July, 2003, by hand-delivery
between the hours of 3:00 and 4:00 o'clock p.m., as follows:
Gordon K. Banzhoff, M.D., in person delivery at 37 Tuscany Court, Camp Hill, PA
Gordon K. Banzhoff, Jr., copies deposited with mail at 245 North 25th Street, Camp Hill, PA
William Witkoski, in person delivery at 417 Country Club Road, Camp Hill, PA
Banzhoff, Banzhoff & Witkoski, General Partnership, in person delivery upon partner, Gordon K.
Banzhoff, M.D., at 37 Tuscany Court, Camp Hill, PA per Pa. R.C.P. No. 423(1)
Teresa M. Hoover
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF CUMBERLAND
On this, the 7'[ h day of July 2003, before me a notary public, the undersigned
officer, personally appeared Teresa M. Hoover, known to me (or satisfactorily proven) to the be
person whose name is subscribed to the within instrument, and acknowledged that she executed
the same for the purposes herein contained. In witness w. her~,of, I hereunto s~t my hand and
official seal. [~ l~~[~t,Ob~,~...~_~
Notary Public vj
Matfllew J. EMlelman, No~,P/Pulffio
Caanp HUt Boro, Cumbedand'County
~ Commission Expire., Nov. 24, 2008
Maf'n~r, Pennsylvanra ^aaoclat~on of Notar~e~
COMMUNITY BANKS,
f/k/a COMMUNITY BANKS, N.A.,
Plaintiff
VS.
GORDON K. BANZHOFF, M.D., et al.,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: DOCKET No. 03 - 3074
: CIVIL ACTION - EQUITY DOCKET
: PREVIOUSLY ASSIGNED TO: J. OLER
RETURN OF SERVICE
AND NOW, this .,t J'~ay of ~_~ ~t 2003, I, Gerald R. Henneman, being a
competent adult above eighteen years of age, hereby certify that, pursuant to Pa. R.C.P. No. 400(b),
I served a tree and correct copy of the Complaint for Injunctive Relief and of the Order of Court
dated July 7, 2003 in the above-captioned matter on the 18th day of July, 2003, by hand-delivery
between the hours of 12:30 and 1:00 o'clock p.m., to Gordon K. Banzhoff, Jr., at 245 North 25th
Street, Camp Hill, Pennsylvania.
4~erald R. Henner~an
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF CUMBERLAND
h
On this, the [ ~ day of July 2003, before me a notary public, the undersigned
officer, personally appeared Gerald R. Henneman, known to me (or satisfactorily proven) to the
be person whose name is subscribed to the within instrument, and acknowledged that she
executed the same for the purposes herein contained.and official seal. In w~t~ess .~ere~ ~~hand~ ~ ~1 (!
Notary lhabli'c I