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HomeMy WebLinkAbout01-6187MID PENN BANK Vs. Plaintiff GORDON K. BANZHOFF AND MARY L. BANZHOFF, husband and wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Ol- 6,177 CIVIL ACTION - LAW CONFESSION OF JUDGMENT AND NOW, this d~3 tdday of 0~'~o b e lr' ,2001, Christian S. Daghir, Attorney for Plaintiff, pursuant to the warrant of attorney in the Promissory Note, the original or a copy of which is attached to the Complaint in Confession of Judgment, does hereby appear for and confess judgment in favor of the Plaintiff and against Defendants, Gordon K. Banzhoff and Mary L. Banzhoff, as a result of the default as alleged in the Complaint as follows: Balance of principal as of October 8,2001 Interest on unpaid balance Late fees and charges Attorney collection fee TOTAL $42,900.00 0 $42,900.00 Christian §. D~gh',r,(/Esquire Judgment in the amount of $42,900.00 entered as above ~ 2001. ~_F~rOthOnOtary ~ MID PENN BANK Vs. Plaintiff GORDON K. BANZHOFF AND MARY L. BANZHOFF, husband and wife, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA ; .. : NO. 01- _. _, : CIVIL ACTION - LAW COMPLAINT IN CONFESSION OF JUDGMENT 1. The Plaintiff, Mid Penn Bank, is a financial institution organized and existing under the laws of the Commonwealth of Pennsylvania with offices located at 349 Union Street, Millersburg, Dauphin County, Pennsylvania. 2. Defendants, Gordon K. Banzhoff and Mary L. Banzhoff, husband and wife, are adult individuals residing at 245 25"~ Street, Camp Hill, Cumberland County, PA 17011. 3. On or about April 1, 1993, Plaintiffmade a loan to Gordon K. Banzhoff, t/a 225 Associates, in the principal amount of $75,616.36, (hereinafter referred to as the "Loan"), as evidenced by that certain Term Note (the "Note"), a true and correct copy of which is attached hereto as Exhibit "A" and is incorporated herein by reference. 4. The Note cuntains a cunfession ofjudgment provision that allows plaintiffto enter judgment against Gordon K. Banzhoff after default on the Note without advance notice or an opportunity to defend against the entry of judgment. 5. On or about March 30, 1993, as security for the Note, Defendants executed and delivered a mortgage to Plaintiff in an amount equal to the Note and all sums due thereunder upon certain real property located at Unit No. 10751-1, Swingold Condominiums, Upper Allen Township, Cumberland County, Pennsylvania, for the purpose of securing the payment of the Note and the performance and observance of the terms, conditions and covenants of the Note (hereinafter referred to as the "Mortgage (II)"). A true and correct copy of Mortgage (II) is attached hereto as Exhibit "B" and is incorporated herein by reference. 6. The Mortgage (II) contains a confession ofjudgment provision that allows Plaintiff to enter judgment against Defendants at, er default of the Note without advanced notice or an oppommity to defend against the entry of judgment. 7. Defendants are in default of the Note as a result of, inter alia. Gordon K. Banzhoff's, failure to make payments on the Note when due. 8. The last payment on th Note was made on or about August 10, 2001 in the amount of $2,722.62. 9. All notice requirements have been fulfilled and the Note and the Mortgage (II) have been accelerated. 10. Pursuant to the terms of the Mortgage (II), Defendants, Gordon K. Banzhoffand Mary L. Banzhoff, are liable to Plaintifffor the sum of $42,900.00. 11. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 12. The Note and the Mortgage (II) have not been assigned, and Plaintiffis the holder of the Note and Mortgage (II). 13. Judgment has not been entered against Defendants in any jurisdiction for their failure to make the required payments on the Note and the Mortgage (II). WHEREFORE, Plaintiff demands judgment against Defendants in the sum of $42,900.00 with applicable judgment interest. Dated: October o~3 ,2001 Christian S. Daghir, Esquiref_/ Supreme Court ID~47741 105 North Front Street Ha~isburg, PA 17101 (717) 234-5600 CERTIFICATION 17061. I hereby certify that the precise address of Plaintiff is 349 Union Street, Millersburg, PA I further certify that the last known address of the Defendants are: Gordon K. Banzhoff Mary L. Banzhoff 245 25* Street Camp Hill, PA 17011 I further certify that the underlying transaction, as evidenced in part by the exhibits attached to the Complaint in Confession of Judgment is a commercial transaction. Dated: Dd.~>/9~r- ~ , 2001 Christiar~ g. Dag'~ir,~q~uire Supreme Court ID 2r7741 105 North Front Street Harrisburg, PA 17101 Attorney for Plaintiff 007-17-200! WED I0:38 ~.~ MID PENN B.~NK ,, , . FD.X NO, 717592486I P, OI I v~,~, *~t thc statements mad,.* in thi~ Complaint a~ u~e and cortez ! tmcle~,~d tlu~t ~t~ sta~m~ ~erein a~ made subj.~ ~o ~he pe~l~.~ of 1 $ P~. C.$~. ~4904 ~ela~g ~o mu~orn fals~c~tion to a~thorifles. ~: OCTOBZ~ ~7~ 2001 MID PENN BANK Vs. Plaintiff GORDON K. BANZHOFF AND MARY L. BANZHOFF, husband and wife, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01- ; : CIVIL ACTION - LAW AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA :SS. COUNTY OF DAUPHTN Christian S. Daghir, Esquire, being duly sworn according to law deposed and says that he makes this affidavit on behalf of the within Plaintiff, being authorized so to do, and that he avers that defendants are not in the military or naval service of the United States or its Allies, or otherwise within the provisions of the Soldiers and Sailors Civil Relief Act of Congress of 1940 and its amendments. Respectfully Submitted, ETZWEILER AND ASSOCIATES By: C~h'ristian S'~ l~a~'hir, Esq. Sup. Ct. I.D. No. 47741 105 North Front Street Harrisburg, PA 17101 (717) 234-5600 Sworn and Subscribed to before me this c~'3¢~ay of October, 2001. Notary Public ($75,616.36) FOR V OE . ~ORDDN K, B~N~HOF~ JR. ~ _ _ ,' ~'~ ~IN~ AB 225 ~s~I?~~a _. , promises to pay to the order of ~ID p~ ~ ("Lender") ~e principal s~ of Seventy-Five ~ousand Six H~ed Sixteen and 36/100~s ($75,616.36), together with interest ~ereon at the rate of eight p~cent (8.00%) per annum, based on a year of 360 days ("Contractual Rate'i) , fl~om the date hereof. For the period ~rom the date hereof ("Beginning Date)'), the undersigned shall pay equal monthly installments of principal and interest in the amount of $722.62. All such payments of principal and interest shall co~l~nce on May 1, 1993 and continue on t-he first (1st) day of each month thereafter through to and including April 1, 2008, if not sooner paid. 1. ate~. If the Undersigned, or any one of them, fails to make any payme.nt of principal or interest due and owing hereunder within fifteen (15) days of t~e due date, an additional late charge of foUr percent (4%) per month of the amount of such pa~rment or payments shall be immediately due and payable. 2. ~. After maturity, whether by acceleration or otherwise, interest shall accrue at a rate of three percent (3%) per annum above the contractual rate ("Default Rate") until all sums due hereunder are paid in full. Interest shall continue to accrue after entry of judqment at the Default Rate to all s%uns due hereunder until the judgment is paid. 3. T~~sence. The prompt and faithful performance of all obligations of the Undersigned's, or any one of them, hereunder, including, but not limited to, time of payment, is of the essence of this Note. 4. Lender's Rec~rds. so long as Lender is the holder hereof, Lender's books and records shall be presumed, except in t21e case of manifest error, to accurately evidence at all times all amounts outstanding under this Note and the date and amount of each advance and payment made hereto. At the request o~ Undersigned, but not more than once in any calendar year, Lender shall provide the Undersigned with evidence of its records of this Note in the form of an account history or similar report. Exhibit "A" 5, Events of Default. Any one cf the following occurrences shall constitute an ~l'ent of Default pursuant to this Note (collectively referred to hereinafter as t_he "~vents of Default"): (A) The failure to pay any installments of principal or interest or any other sums due hereunder for a period of thirty (30) d~ys after the date due; (B) The failure t:o per£or~ any other term, condition or covenant hereu:nder, which failure remains uncured thirty (30) days aft~:r ~-ritten notice of same from Lander; (C) The issuance cf a writ or warrant of attachment, garnishment, execution, distrainn or similar process against Under~igned, or any one of them, which shall have remained undischarged and unstayed for a period cf twenty (20) consecutive days; (D) The filing, eli.ther voluntarily or involuntarily, or any proceeding of bankruptcy or for reorganization of Undersigned, or any one of them, or for the readjustment of any of thei. r debts under the United States Bankl~/ptcy Code, as amen=~.ed, or any part thereof, or under any other laws, whether stats or federal for the relief of debtors, now or hereinafter existing and which proceeding shall not be dischal.-ged or stayed wit_kin sixty (60) days from the date of tl~eir commencement; (~) The appointment of a receiver or trustee for Undersigned, or any one ~:,f them, of any substantial par= of its assets, and such receiver or trustee shall not be discharged wi=bin sixty (60) days of hie or her appointment or proceeding to dismiss such receiver or trustee are not instituted within thirty (30) days; and (F) A default un,.er the terms of the Mortgage dated of even date hereof, by and between Gordon K. Banzhoff and Mary L. Banzhoff and Lender (Mortgage "A") or the Mortgage dated of eve:n date hereof, by and between ~ordon K. Banzhoff, Jr.. and Lender (Mortgage "B") , including but not limited to, Gordon K. Banzheff, Jr.'s failure to cause Mortga,~e "B" to be in a first lien priority position on the real property secured by Mortgage "B", on or before May 31, 199~. 6. RiGhts and Remedies of Lender Upon Default. Upon the occurrence of any Event of Default hereunder, all amounts due under this Note, including the unpaid balance of principal and interest hereof~ shall become i~.ediately due and payable at the option of Lender without any dem~nd or notice whatsoever and Lender may immediately thereafter exercise any one or more of the remedies available to Lender un¢[er any applicable law or in equity and institute such legal, e~iLitahle or other proceedings in the name of the Undersigned, or any one of them, or Lender as Lender deems appropriate. In the event Lender, in exercising any rights and remedies upon the occurrence of any Event of Default, makes any disbursements or incurs any costs therefor, the amount of such costs shall be added to the principal a~cunt of the Note, and collected as part of this Note. If an Event of Default shall occur, the delay or failure cf Lender to promptly exercise its rights to declare ~his Note immediately due and payable or to exercise any rights and remedies upon the occurrence of ~Ln Event of Default, shall not affect such rights and remedies, nor shall any single or partial exercise constitute a waiver of such rights and remedies with respect to such Event of Default or any future Event of Default. Any waiver or release cf any one Event of Default by Lender shall not be construed as continuing as a bar to, or as a waiver or release of, any subsequent rights, reamed±es, or reco%Lrse as to subsequent or other Events of Default.. Any rights or remedies of Lender may be asserted concurrently, cumulatively or successively, from time to time es long as the Und~ersigned, or any one of t_hem, is indebted u3ader this Note. 7. Prepayment. 't~is Note may be prepaid in full or in part without premium or penalty, with all such prepalrments being applied in inverse order of maturity. 8. Pewnent~. Payments of principal and interest are to be made payable to Mid Penn Bank, at 349 Union Street, Millersburg, Pennsylvania 17061, or at such place as Lender may designate in ~riting, in lawful money of the United States of America and in immediately available funds. 9. Governin~ La:~. This Note she1! be governed by and construed in accordance with the laws cf the Commonwealth of Pennsylvania. 10. Waiver. The Undersigned, or any one of them, here~y waives diligence, demand, presentment, notice of nonpayment, protest and all o~her demands and notices in connection with the delivery, acceptance, ~erformance, default or enforcemen= of this Note. 11. ~~_~_s. In the event that this Note is placed in the hands of an attor~:~ey at law for collection after maturity or upon the occurrence of ~Ln Event of Default, or to enforce any of the righ=s~ remedie~ or requirements of Lender under this Note, including any action~ Or proceedings in bankruptcy, the Undersigned, or any on~-~ of them, agrees to pay all costs and expenses incurred by Lender, including, but not limited to, all attorneys' fees and cos'Its, regardless of whether the maturity of this Note has been accelerated or any other action instituted. 12. ~. This Note may not be amended, modified or changed, nor shall any ~aiver of any of =he provisions Hereof be effeC=ive, except only by an instrument in writing, signed by the parties against whom enforcement, any waiver, amendment, change, modification or ~ischar,~;e is sought. 13. Headincs. Th~: sectional headings contained in this Note are for reference purpo~:es only and shall not control or affect its construction or interpret-tailon in any rmspect. 14. ~. A~y provisions of this Note which are held 'to be prohibited or un:~-nfor=eable in any j~risdic~ion, shall be ineffective to the ex~e:nt of such prohibition or unenforce&bility without invalidating th.- remaining provision~ hereof or affecting the validity or enforc-~ability of suc~h provisions in any other jurisdiction. 15. ON~~__~. UPON AN EVENT OF DEFAULT, THE UNDERSIGNED, OR A/~Y ON]!: OF THEM, H]~REBY IRREVOCABLY ~OWERS ANY ATTORNEY OF ANY COURT Cji' RECORD WITHIN TH~. UNITED STATES OF Ah~ICA OR ELSEWPiER~ TO A~PEAR FOR IINDERSIGNED, OR ANY ONE OF THEM, AND, WITH OR WITHOUT COM~LAINT FILED, CON~ESS JUDGMENT AGAINST UNDERSIGNED, OR ANY ONE OF TH~M, IN FAVOR OF A~Y HOLDER H~REOF AS OF ANY TERM, FOR TH~. UNPAID BALANCE OF THE PRINCIPA~ DEBT, ADDITtON/~L LOANS AND ADVANCES AND ALL 0THOR SUMS PAID BY HOLDER TO OR ON BEHALF OF UNDERS].'.GNED, OR ANY ONE OF TH22(, pUltSUABT TO THE TERMS OF THIS NOTE, TOG]!~THER wIT~ UNPAID INTEREST THER~0N, COSTS OF SIIIT AND AN ATTORNEYS" cOM2~ISSION OF TEN ~ERcENT (10%) OF A/(.OUNTS DUE OR $1,500.00~ W~ICHEVER IS GREATER. TPi~ UNDERSIGNED, OR A-NY ONE oF THEM, HEq;,~.RY FOREVER WAIVES AND ltELEAS]~S ALL ERRORS IN SAID PROCEEDINGS, ~iAIV~S THE STAY OF EXECUTION, THE RIGHT OF INQUISITION AND EXTENS:I:ON OF TIME OF PAY/~ENT. NO SINGLE EX]~R¢ISE OF TPiE FOREGOING pOW2~i{ TO CONFESS THE J~IDGM~NT OR A S~RIES OF JTrDGMENTS SHALL BE DEE/~ED TO EXHAUST THE POWER OF WHETHER OR NOT AN~ SUCH EXERCISE SHAI~I~ BE HELD BY ANY COURT UNDI/~!N!SHED, AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE HOLDER HEREOF SHA?.T. ELECT UNTIL SUCH TIME AS THE HOLDER SHALL HAVE RECEIVED PA%rMENT IN FULL OF ~.'HE PRINCIPAL DEBT, ADDITION/fL LOANS AND ADVANCES ~ SUMS PAID, I~I{TEREST AND COSTS. 4 pROVISION ~IN CONT~NED ~ ~'~'~ c~T~N ~GAL '~IG~S OF ~D~SIGNED, OR ~Y O~ OF TH~, ~S BE~ ~D, ~D~STOOD ~D VOL~ILY AGREED ~ BY ~. 16. WAI~R OF ~I;,L BY ~Y. IN R~COGNITION OF THE HIGH~ cOST ~D DE~Y ~ZCH ~Y ~S~T FROH A ~u~Y TRI~ ~E ~DE~IGNED H~ETO WAIVE ~Y RIG~ TO T~ BY ~Y OF ~ c~IM, D~D, ACTION OR ~USE OF ACTIO]~ (1) ~ISING H~E~ER, 0R (2) IN ~Y WAY CON~CT~D WI~ OR ~T~ OR INCID~ TO ~E D~INGS OF ~SIG~, OR ~ ONE OF ~, ~ L~D~ WITH ~SPECT ~TO, ~CH ~SE ~ NOW EXISTING OR n~ ~SING, ~D SO~DI~G IN CO~CT OSL TORT OR oT~WISE; ~ ~E H~BY AGREE ~ CONS~T T~T ~Y SU~ C~, D~, ACTION OR CAUSE OF A~ION s~L BE DECIDED BY CO~T T~ WITHO~ A ~Y, ~D T~T L~ ~Y FILE ;~ oRIGIN~ CO~E~ OR COPY SE~ION WI~ ~ CO~T .~ ~I~ ~ID~CE OF ~E CONS~T ~IGNED TO THE WAI~{~ OF ~IR RIG~ TO ~I~ BY ~Y. WITNESS, the du~ ~xe~tlon hereof on the day and year first a~ove WITNESS ? / 225 ~SoCIATES, a penms~lvanla BY: GORDON K. B~F ,&' JR. 5 WITN~S~~ ~ ~ / WITN~S S ~ J~ F. HAND ' HASBROUC~ S. WRIGn£ ~] ) ss: cotmTY oF ~ 0 ~ ,~-o ~.'- ) on T.his date, before me a Notary Public, personally appeared Haebrouck S. wright kno~n to me or satisfactorily proven to ba the person whose name is sub=~3cribed to this instrument and acknowledge~ that he executed ~hs sane. If this person's name is subscribed in a representative capacity, it is fort he principal named and in the capacity indicated. WHO J$ PERSONALLY KNOWN TO ME, My Commission Expires: 10 o EDG STATE OF PENNSYLVANIA: : COUNTY OF DAUPHIN : SS: On this let day of April, 1993, before me, a Notary Public, the undersigne¢l, officer, personally appeared Gordon K. Ba~zhoff, Sr., Gordon ]~i. Banzhoff, Jr. and JonaThan F. Hand, known to me or satisfa~::torily proven to be ~hs persons whose names are subscribe~ t~:~ This instr~en=, that they are the qeneral partners of 225 Associates, a Pennsylvania genaral par~ersh£p, and ack.no%~,ledged that t/%sy executed the same for the purposes contained therein. Notary Public My Commission MORTGAGE }~,ND SECURITY }.~REEHEI~ ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY-PA '92 20 12 05 THIS MORTGAGE AND SECURITY AGREEMENT ("Mortgage") is made this ~ day of ~ , 1993, between GORDON K. BANZHOFF /%ND MARY L. B~NZHOFF, individuals residing at 245 North 25th Street, Camp Hill, Pennsylvania 17011 (collectively referred to as "Mortgagors") and MID PENN B/%NK having offices at 349 Union Street, Millersburg, Pennsylvania 17061 (hereinafter called "Mortgagee"). WTTNES SETH: WHEREAS, Mortgagor Gordon K. Banzhoff, Gordon K. Banzhoff, Jr., Jonathan F. Hand and Hasbrouck S. Wright, trading as 225 Associates, a Pennsylvania general partnership have executed and delivered to Lender a certain Term Note, dated of even date hereof, in the original principal amount of $75,616.36 ("Term Note"); and WHERe, as security for the Term Note, Mortgagors hereby execute and deliver to Mortgagee a certain Mortgage in an amount equal to the Term Note and all sums due thereunder, upon certain real property located in Upper Allen Township, Cumberland County, Pennsylvania. NOW, THEREFORE, for the purpose of securing the pa!rment of the Term Note and the performance and observance of the terms, conditions and covenants of the Term Note, this Mortgage and any agreements, documents or instruments executed in connection therewith (hereinafter collectively referred to as the "Obligations") and intending to be legally bound hereby, Mortgagors do hereby grant, bargain, sell, pledge, convey and mortgage unto Mortgagee, its successors and assigns, all that certain tract of land situate in Cumberland County, Pennsylvania, and more particularly described in Exhibit "A", attached hereto and made a part hereof ("Land"); TOGETHER WITH ALL AND SINGULAR the fixtures, buildings and improvements, streets, lanes, alleys, passages, way, waters, water courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any way appertaining, and the revisions and remainders, rents, issues and profits thereof (hereinafter collectively referred to together with the Land as the "Mortgaged Premises"); TO HAVE AND TO HOLD the same unto the said Mortgagee, its successors or assigns, FOREVER. PROVIDED, HOWEVER, that the total principal, interest and other charges due under the Obligations secured by t~i$ Mortgage shall be limited to a maximum of $42,900.00; and Exhibit "C" oo 1128 151 PROVIDED, that upon satisfaction in full of the Obligations and Mortgagors' obligations herein to Mortgagee, then this Mortgage and the estate hereby granted shall be discharged. MORTGAGORS represent, warrant, covenant and agree that: FIRST: Mortgagors will pay or cause to be paid to Mortgagee the Term Note secured hereby as and when due and will fully and faithfully comply with all of its other Obligations and will keep and perform all the covenants and agreements contained in the Term Note and this Mortgage, in the manner and form as therein and herein set out. SECOND: Mortgagors agree not to transfer title to the Mortgaged Premises unless Mortgagee consents in writing prior to such transfer. THIRD: Mortgagors specially warrant title to the Mortgaged Premises. Mortgagors further warrant that the Mortgaged Premises is held and shall continue to be held free and clear of all liens, claims and encumbrances, except those set forth in a certificate of title of Wix, Wenger & Weidner, dated ~s~ ~ , 1993. FOURTH: Mortgagors will pay or cause to be paid when due all taxes, assessments, levies, impositions and other charges on or against the Mortgaged Premises. If Mortgagors fail to do so, Mortgagee at its sole option may elect to pay such taxes, assessments, levies, impositions or other charges. Upon request by Mortgagee, Mortgagors shall provide to Mortgagee, in a form and substance satisfactory to Mortgagee, evidence of payment of all such taxes, assessments, levies, impositions or other charges. FIFTH: Mortgagors shall keep or cause to be kept the Mortgaged Premises in good repair, excepting only reasonable wear and tear. Mortgagor will permit Mortgagee's authorized representatives to enter upon the Mortgaged Premises at any reasonable time for the purpose of inspecting the condition of the Mortgaged Premises and conducting any appraisals or environmental audits. Mortgagors will not permit removal or demolition of improvements now or hereafter erected on the Mortgaged Premises without the prior written consent of Mortgagee, nor will Mortgagors permit waste of the Mortgaged Premises or alteration of improvements now or hereafter erected on the Mortgaged Premises which would materially and adversely affect its market value as determined by Mortgagee, in its reasonable discretion. SIXTH: Mortgagors shall keep or cause to be kept the Mortgaged Premises insured against such hazard and casualty and in such amounts as Mortgagee shall so require from time to time, but 2 under no circumstances shall such insurance be for an amount less than $42,900.00. All such policies of insurance shall prohibit termination without thirty (30) days prior written notice to Mortgagee and shall identify Mortgagee as a loss payee under a standard mortgagee/loss payee clause. If Mortgagors fail to obtain and keep in force any required insurance or fail to pay the premiums on such insurance, Mortgagee at its sole option may elect to do so. In the event of loss, Mortgagors shall give prompt notice to the insurer and Mortgagee. Mortgagee at its option may elect to make proof of loss if Mortgagors do not do so promptly, and to take any action it deems necessary to preserve Mortgagors' or Mortgagee's rights under any insurance policy. Subject to the requirements of any prior mortgagee, insurance proceeds shall be applied to the restoration or repair of the Mortgaged Premises or, if Mortgagors are in default hereunder, to reduction of the Obligations secured hereby, at the option of Mortgagee, in its sole discretion. SEVENTH: Mortgagors hereby agree to repay or cause to be repaid to Mortgagee on demand all sums which Mortgagee has paid at its sole option under Paragraphs Fourth and Sixth, with interest thereon at the contractual rate then due on said Term Note; and all sums, together with interest thereon, until repaid to Mortgagee, shall be part of the Obligations and be secured hereby. EIGHTH: Subject to the rights of any prior mortgagee, Mortgagors hereby assign to Mortgagee all proceeds up to an aggregate of any award in connection with any condemnation or other taking of the property or any part thereof, or payment for conveyance in lieu of condemnation. NINTH: In order to further secure Mortgagee in the event of default in the payment or performance of the Obligations secured hereby, Mortgagors hereby assign and transfer to Mortgagee, its successors and assigns, any and all leases on the Mortgaged Premises or any part thereof, now existing or which may hereafter be made at any time, together with any and all rents, issues and profits arising from the Mortgaged Premises under said leases or otherwise, without obligation of Mortgagee to perform or discharge any obligation, duty or liability under such leases, but with full authorization to collect all rents under the leases or otherwise upon the occurrence of an Event of Default and apply the rents as it deems appropriate, in its sole discretion, and to take possession of and rent the Mortgaged Premises. 3 TENTH: In the event of any breach of warranty, covenant, condition or agreement of this Mortgage which is not cured within thirty (30) days after written notice from Mortgagee, or in the event that any representation or warranty contained herein proves to be false, inaccurate or misleading at the time it was made, or upon the filing by Mortgagors, or either one of them, of any proceeding in bankruptcy, either voluntarily or involuntarily, under the United States Bankruptcy Code, as amended, or under any other laws, whether state or federal for the relief of debtors, now or hereinafter existing and which proceeding shall not be discharged or stayed within sixty (60) days from the date of their commencement, or upon the occurrence of an Event of Default under the Ter~ Note (hereinafter collectively referred to as an "Event of Default"), Mortgagee may, in addition to exercising any rights which Mortgagee may have under the applicable law, the Note or this Mortgage, foreclose upon the Mortgaged Premises by appropriate legal proceedings and sell the Mortgaged Premises for the collection of the Obligations secured hereby, together with costs of suit and a reasonable attorneys' commission. Mortgagors hereby forever waive and release all errors in said proceedings, waives stay of execution, the right of inquisition and extension of time of payment, agree to condemnation of any property levied upon by virtue of any such extension, and waive all exemptions from levy and sale of any property that now is or hereafter may be exempted by law. ELEVENTH: In the event of an occurrence of an Event of Default hereunder, Mortgagors hereby authorize and empower the clerk of any court or any attorney of any court of record in the Commonwealth of Pennsylvania or elsewhere as attorney for the Mortgagors, or against all persons claiming under or through the Mortgagors to appear for and confess judgment against the Mortgagors, for recovery by Mortgagee of possession of the same, without any stay of execution, for which this Mortgage or a copy thereof verified by affidavit shall be sufficient warrant; and thereupon a writ of possession may be issued forthwith, without any prior writ or proceeding whatsoever. Mortgagors hereby release the Mortgagee from all errors and defects whatsoever in entering such action in judgment and in causing such writ or writs to be issued and hereby agrees that no writ or error, appeal, petition to open and/or strike judgment or other objection shall be filed or made with respect thereof. If, for any such reason, such action has been commenced and the same shall be discontinued or possession of the Mortgaged Premises which is the subject of this Mortgage shall remain in or be restored to the Mortgagors, Mortgagee shall have the right to the same default or any subsequent default to bring one or more further amicable actions as above-provided to recover possession of the Mortgaged Premises which is subject to this Mortgage. Mortgagee may bring such amicable action in ejectment 4 before or after the institution of foreclosure proceedings upon this Mortgage, or after judgment thereon, or after sale of the Mortgaged Premises which is the subject of the Mortgage by the Sheriff. TWELFTH: The rights and remedies of Mortgagee as provided herein or in the Note, relating to any portion of the Obligations secured hereby shall be cumulative and may be pursued singily, concurrently, or successively at Mortgagee's sole discretion, and may be exercised as often as necessary; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release of the same. THIRTEENTH: At Mortgagors' sole cost and expense, Mortgagors shall comply in all material respects with all federal, state and local laws, rules, regulations and orders with respect to the discharge, generation, removal, transportation, storage and handling of hazardous or toxic waste or substances; pay immediately when due the cost of removal of any such waste or substances; and keep the Mortgaged Premises free from any lien imposed pursuant to such laws, rules, regulations and orders. In the event Mortgagor fails to do so, Mortgagee may declare the Mortgage to be in default. Mortgagors shall indemnify Mortgagee and hold Mortgagee harmless against all losses, costs, damages and expenses, including without limitation attorneys' fees and costs incurred in the investigation, defense and settlement of claims that Mortgagee may incur as a result of or in connection with the assertion against Mortgagee of any claim relating to the presence or removal of any hazardous waste or substance referred to in this paragraph, or in compliance with any federal, state or local laws, rules, regulations or orders relating thereto. FOURTEENTH: Mortgagors shall not install, or permit to be installed in or on the Mortgaged Premises, asbestos or any other substance containing asbestos and any other substances deemed to be hazardous by federal, state or local laws, rules, regulations or orders respecting such material. With respect to such material currently present in the Mortgaged Premises, Mortgagors shall promptly comply in all material respects with such federal, state or local laws, rules, regulations or orders at Mortgagors' expense. If Mortgagors shall fail to so comply, Mortgagee may declare the Mortgage to be in default. Mortgagors shall indemnify Mortgagee and hold Mortgagee harmless from and against all loss, costs, damage and expense, including without limitation attorneys' fees and costs incurred in the investigation, defense and settlement of claims, that Mortgagee may incur as a result of, or in connection with the assertion against Mortgagee of any claim relating to the presence or removal of any asbestos substance referred to in this paragraph, or in compliance with any federal, state or local laws, rules, regulations or orders relating thereto. FIFTEENTH: Mortgagors hereby grant to and create in favor of Mortgagee a security interest in and to any and all fixtures, as that term is defined in the Uniform Commercial Code, as adopted in the Commonwealth of Pennsylvania ("Code"), to the Mortgaged Premises and hereby agrees to execute any and all agreements, documents or instruments which Mortgagee, in its sole discretion, deems necessary to perfect and continue perfection of its interest therein. Upon an Event of Default, Mortgagee shall be entitled to any and all remedies available to a secured creditor under the Code, or as may exist under any applicable law or at equity. Mortgagors shall pay to Mortgagee upon demand all reasonable costs, including reasonable attorneys' fees and costs incurred in connection with the perfection and continuance of its interest granted hereunder or to the collection or enforcement thereof, with all such sums to bear interest at the contractual rate under the Note and secured hereby. SIXTEENTH: Any notice required to be given hereby shall be deemed to have been given when mailed by certified mail, return receipt requested to the addresses set forth below unless such other address is hereafter designated in writing by either party: To Mortgagee: Mid Penn Bank 349 Union Street Millersburg, Pennsylvania 17061 ATTENTION: Kim Allen Heim Adjustment Supervisor To Mortgagors: Gordon K. Banzhoff and Mary L. Banzhoff 245 North 25th Street Camp Hill, Pennsylvania 17011 With A Copy To: Steven C. Wilds, Esquire WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, Pennsylvania 17108-0845 SEVENTEENTH: The covenants, conditions and agreements contained herein shall bind the successors and assigns of Mortgagors, and the rights and privileges contained herein shall inure to the successors of Mortgagee. Mortgagors may not assign, transfer or delegate any of its obligations, duties or liabilities hereunder without the prior written consent of Mortgagee. 6 EIGHTEENTH: This Mortgage shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. If any provision hereof shall for any reason be held invalid or unenforceable, no other provision shall be affected thereby, and this Mortgage shall be construed as if the invalid or unenforceable provision had never been part of it. NINETEENTH: Unless otherwise specifically provided herein or as otherwise provided by the context herein, all terms set forth herein shall have the same meaning as those defined terms as they are used in the Note. TWENTIETH: In recognition of the higher costs and delay which may result from a jury trial, the Mortgagors, or any one of them, hereto waive any right to trial by jury of any claim, demand, action or cause of action (1) arising from the Obligations, or (2) in any way connected with or related or incidental to the dealings of the Mortgagors, or any one of them, and Mortgagee with respect hereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise; and Mortgagors, or any one of them, hereby agree and consent that any such claim, demand, action or cause of action shall be decided by court trial without a jury, and that Mortgagee may file an original counterpart or copy of this section with any court as written evidence of the consent of Mortgagors, or any one of them, to the waiver of their right to trial by jury. WITNESS the due execution and first above written. / sealing hereof the day and year RECEIPT OF A TRUE COPY OFT HIS INETRUMENTt PROVIDED WITHOUT CHARGE, IE HEREBY ACKNOWLEDGED. 7 ACKNOWLED61MENT COMMONWEALTH OF PENNSYLVANIA ) ) SS: ) of~~ , 1993, before me, the undersigned officer, a Notary Public, personally appeared Gordon K. Banzhoff, who acknowledged that he has executed the foregoing instrument for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and notarial seal. co TY oF My Commission Expires: Lower Pa.~o¢l Twp. Dauphin County /dy Co~nmission E. xpmes JLdy 12, 1993 Notary Public 8 t58 ACKNOWLBDGMENT COMMONWEALTH OF PENNSYLVANIA ) x ) ss: COUNTY OF c~ ) On this, th~ day of~O-~J-t-~ , 1993, before me, the undersigned officer, a Notary Public, personally appeared Mary L. Banzhoff, who acknowledged that she has executed the foregoing instrument for the purposes therein contained. IN WITNESS ~EOF, I hereunto set my hand and notarial seal. Notary Public ~ ~ ~ My Co~ission E~lr~s. ~ ~ ~/~.-~. ~. / ~rP~T~ O~n~ I '", , ~1~ Penn Ba~, hereby certify that the precise residence of Mortgagee is 349 Union Street, Millersburg, Pennsylvania 17061. COMMONWEALTH OF PENNSYLVANIA c o TY or SS: Recorded in the office of the R~corder of said county, on the ~ day of Book Volume //~ , Page /~/ Deeds in and for , 1993, in~ WITNESS my aforesaid. hand and seal of said office the day and year Recorder 10 EXHI[BTT "A" ALL THAT CERTAIN apartment dwelling unit situated in Sunguild Condominium, Upper Allen Township, Cumberland County, Pennsylvania, being designated as Unit No. 1075-1 in the Declaration, Code of Regulations and Declaration Plans of said condominium, recorded in the Recorder of Deeds Office of Cumberland County, Pennsylvania in Miscellaneous Book 249, Page 784, and Miscellaneous Book 249, Page 810 and Plan Book 37, Page 23, respectively under the provisions of the Unit Property Act of July 3, 1963, P.L. 196. TOGETHER with all right of title and interest, being a 1.4416% interest, of, in and to the Common Elements as more fully set forth in the aforesaid Declaration of Condominium and Declaration Plans. UNDER AND SUBJECT to all agreements, conditions, easements and restrictions of record and to the provisions, easements, covenants, and restrictions as contained in the Declaration, the Code of Regulations and the Declaration Plans. ?;rev of Cumb~r end ~' SS 161 MID PENN BANK Vs. Plaintiff GORDON K. BANZHOFF AND MARY L. BANZltOFF, husband and wife, Defendants : IN TIlE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 0I- 6, t77 CIVIL ACTION - LAW To: Gordon K. Banzhoff and Mary L. Banzhoff, Defendants You are hereby notified that on O('~L~ ~%, 2001, the following Judgment has been entered against you in the above-captioned case. Judgment in the amount of $42,900.00 which includes interest to October 8, 2001. Prothonotary- E~----~ I hereby certify that the name and address of the proper persons to receive this notice under Pa. R. Civ. P. 236 is: Gordon K. Banzhoff Mary L. Banzhoff 245 25~ Street Camp Hill, PA 17011 Chr'istian'$. Da~hir,. ]~sX~i~. Attorney for Mid Penn Bank A Gordon K. Banzhoff and Mary L. Banzhoff, Defendido/a Defendidos/as Pot este medio se le esta notificando ue el __ de del 2001, el/la siguiente (Orden), (Decreto), (Fallo) ha sido anotado en contra suya en el caso mencionado en el epigrafe. FECHA: Protonotario Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado de residencia: Judgment in the amoum of $42,900.00 which includes interest to October 8, 2001. Gordon K. Banzhoff Mary L Banzhoff 245 25th Street Camp Hill, PA 17011 Christian S. I~tghir, E~I)/ Abogado del Demand~nte MID PENN BANK Vs. Plaintiff GORDON K. BANZHOFF AND MARY L. BANZHOFF, husband and wife, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-6187 Civil Term : CIVIL ACTION - LAW PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Dated: February ~ 2003 Kindly mark the judgement in the matter above-captioned satisfied and discontinued. 105 North Front Street Harrisburg, PA 17101 (717) 234-5600