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HomeMy WebLinkAbout08-5508IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TD BANK, N.A., successor-in-interest by merger to COMMERCE BANK, N.A., as successor-in-interest by merger to Commerce Bank/Central, N.A., Plaintiff Case No. 08 -SSS08 VS. BRIAN L. JOHNSON, Defendant Mortgage Foreclosure NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED 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 SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD ST. CARLISLE, PA 17013 (800) 990-9108 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TD BANK, N.A., successor-in-interest by merger to COMMERCE BANK, N.A., as successor-in-interest by merger to Commerce Bank/Central, N.A., Plaintiff VS. BRIAN L. JOHNSON, Defendant COMPLAINT Case No. Mortgage Foreclosure Plaintiff, TD Bank, N.A., by and through its legal counsel, Lesavoy Butz & Seitz LLC, states the following complaint in mortgage foreclosure: 1. Plaintiff, TD Bank, N.A., is a federally chartered banking institution with offices at One Royal Road, Flemington, NJ 08822. 2. Plaintiff is the successor-in-interest by merger to Commerce Bank, N.A., by reason of a merger which took effect on June 1, 2008. Commerce Bank, N.A., is the successor-in-interest by merger to Commerce Bank/Central, N.A., by reason of a merger that took effect on April 1, 2001. 3. Defendant is an adult individual whose last known address is 300 Stumpstown Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. 4. At all times relevant hereto, Defendant had a direct or indirect interest in Smith Auto Body Shop, Inc., d\b\a Smith's Auto (the "Company"), a Pennsylvania business corporation operating an automotive repair business at 5215 Simpson Ferry Road, Mechanicsburg, PA 17055. 5. In order to document a commercial loan from Plaintiff to the Company, the Company executed a U.S. Small Business Administration Note in Plaintiff's favor dated July 27, 2001, in the amount of $228,000 (the "Note"). A true and correct copy of the Note is attached hereto, made a part hereof, and marked as Exhibit A. 6. The $228,000 loan is also documented by a Business Loan Agreement dated July 27, 2001 (the "Loan Agreement"). A true and correct copy of the Loan Agreement is attached hereto, made a part hereof and marked as Exhibit B. 7. The $228,000 loan is secured by, inter alia, a second mortgage on Defendant's real estate known as at 300 Stumpstown Road, Monroe Township, Cumberland County, Pennsylvania, designated Tax Parcel No. 22-11-00278-054, and as more fully described in a deed to Defendant at Deed Book 167, Page 159 (the "Mortgage" and the "Mortgaged Property"). A true and correct copy of the Mortgage is attached hereto as Exhibit C. 8. The Mortgage was recorded on August 6, 2001, at Mortgage Book 1729, Page 4313. 9. Kathryn S. Wiles signed the Mortgage as a mortgagor but did not have a record interest in the Mortgaged Property when Defendant granted the Mortgage to Plaintiff. 10. Pursuant to Pa.R.C.P. 1144(b), Plaintiff releases Kathryn S. Wiles and therefore she is not named as a defendant in this action. 11. The Company is in default under the Note and the Loan Agreement by reason of its failure to make payments due under the Note. 12. As a result of the foregoing defaults, all amounts under the Note, the Loan Agreement and the Mortgage are due and owing in full. 2 13. The Note contains a waiver of demand. 14. Section 7(B) of the Note permits Plaintiff to collect its expenses, including reasonable attorneys' fees and costs. 15. The sum of $15,000, which is less than ten percent of the unpaid principal due under the Note, is a reasonable figure for attorneys' fees to be incurred in handling Defendant's bankruptcy case, handling this matter, pursuing claims against the Company, and liquidating Plaintiff's collateral. 16. After credit for all partial payments made, the amount due to Plaintiff as of August 18, 2008, plus accruing interest from and including August 19, 2008, is as follows: Principal due Interest through 8/18/08 Attorneys' fees TOTAL *per diem = $31.36 $ 155,727.41 $ 23,821.21 $ 15,000.00 $ 194,548.62 17. Plaintiff has not assigned its interests in the Note, the Loan Agreement, the Mortgage, or the obligation they secure. 18. Plaintiff served Defendant with a notice of intent to foreclose under the Homeowners' Emergency Mortgage Assistance Act of 1983, 35 P.S. §1680.401 c. 19. Upon information and belief, the Pennsylvania Housing Finance Agency denied Defendant's application for assistance on May 22, 2008. WHEREFORE, Plaintiff requests (A) the entry of a judgment in foreclosure against Defendant in the amount of $194,548.62 (which includes interest through August 18, 2008), plus additional interest at the rate stated in the Note from and including August 19, 2008, (B) the entry of an order directing the sheriff's sale of the Mortgaged Property, (C) an award of costs, and (D) such other relief as the Court deems just. BUTZ & SEITZ LLC Jack M. N J. i Attorn6LXo. 91 r19 One Windsor Plaza 7535 Windsor Drive, Suite 200 Allentown, PA 18195 (610) 530-2700 Attorneys for Plaintiff 4 VERIFICATION I, Jennifer M. Gracia, hereby state and verify that I am an Assistant Vice President of TD Bank, N.A., that I am authorized to take this verification on behalf of said organization; and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. 1 Date: - 008 TD N.A., successor-in-interest by merg to COMMERCE BANK, N.A., as successor-in-interest by merger to Commerce Bank/Central, N.A., N : Jein-nif)f M. rracia Assis t Vice President 1 modwe 331d3500006 n T ' US S%1ALL SW%E99 ADVNIVE'RATIM US Small Business AdminitAration . , M=SC . NOTE 13(0 ISO6(d-jcn7- 13(0 SBA Loan #i PLP 443-385-4007 SBA Loan Name Smith Auto Body Shop, Inc dAW2 Smith's Auto Date July 27, 2001 Loan Amount $228,00000 Interest Rate Variable Borrower Smith Auto Body Shop, Inc d/Wa Smith's Auto Operating Company Lender Commerce Bank, N A 1 PROMISE TO PAY In return for the Loan, Borrower promises to pay to the order of Lender the amount of Two Hundred Twent"ght Thousand & 00/100 Dollars, interest on the unpaid principal balance and all other amounts required by this Note 2 DEFINITIONS 'Collateral" means any property taken as security for payment of this Note or any guarantee of this Note "Guarantor' means each person or entity that signs a guarantee of payment of this Note 'Loan' means the loan evidenced by this Note 'Loan Documents' means the documents related to this ban signed by Borrower any Guarantor, or anyone who pledges collateral "SBA" means the Small Business Administration an Agency of the United States of America 3 PAYMENT TERMS Borrower must make all payments at the place Lender designates The payment terms for this Note are The interest rate on this Note will fluctuate The initial interest rate is 10 25% per year This initial rate ?s the prune rate on the date SBA received the ban application, plus 225% The initial interest rate must remain in effect until the first change period begins Interest on this note ?s computed on a 30/360 simple interest basis, that is, with the exception of odd days ?n the first payment period monthly interest is calculated by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by a month of 30 days Interest for the odd days is calculated on the basis of the actual days to the next full month and a 360-day year Borrower must pay principal and interest payments of $3 044 69 every month, beginning on the 1st day of the month after the 1st full month from date of note, payments must be made on the first calendar day in the months they are due SBA FORM 147 (10122/98) Previous editions obsolete • ± PROMISSORY NOTE Loan No 1361505642 (Continued) Page 2 Lender will apply each installment payment first to pay interest accrued to the day Lender receives the payment, then to bring principal current, then to pay any late fees, and will apply any remaining balance to reduce principal The interest rate will be adjusted on the first day of every calendar quarter (the "change period") The "Prime Rate" is the prime rate in effect on the first business day of the month in which an interest rate change occurs, as published in the Wall Street Journal on the next business day The adjusted interest rate will be 2 25% above the Prime Rate Lender will adjust the interest rate on the first calendar day of each change period The change in interest rate is effective on that day whether or not Lender gives Borrower notice of the change The initial interest rate must remain in effect until the first change period begins Lender must adjust the payment amount at least annually as needed to amortize principal over the remaining term of the note If SBA purchases the guaranteed portion of the unpaid principal balance, the interest rate becomes fixed at the rate in effect at the time of the earliest uncured payment default If there is no uncured payment default, the rate becomes fixed at the rate in effect at the time of purchase All remaining principal and accrued interest is due and payable 10 years from date of Note Late Charge If a payment on this Note is more than 15 days late, Lender may charge Borrower a late fee of up to 5% of the unpaid portion of the regularly scheduled payment 4 RIGHT TO PREPAY Borrower may prepay this Note Borrower may prepay 20 percent or less of the unpaid principal balance at any time without notice If Borrower prepays more than 20 percent and the Loan has been sold on the secondary market, Borrower must A Give Lender written notice, B Pay all accrued interest, and C If the prepayment is received less than 21 days from the date Lender receives the notice, pay an amount equal to 21 days' interest from the date Lender receives the notice, less any interest accrued during the 21 days and paid under subparagraph 8 If Borrower does not prepay within 60 days from the date Lender receives the notice, Borrower must give Lender a new notice 5 DEFAULT Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower or Operating Company A Fails to do anything required by this Note and other Loan Documents 8 Defaults on any other ban with Lender, C Does not preserve, or account to Lender's satisfaction for, any of the Collateral or its proceeds, D Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA, E Makes, or anyone acting on their behalf makes, a materially false or misleading representation to Lender or SBA F Defaults on any ban or agreement with another creditor, if Lender believes the default may materially affect Borrowers ability to pay this Note, G Fails to pay any taxes when due, H Becomes the subject of a proceeding under any bankruptcy or insolvency law I Has a receiver or liquidator appointed for any part of their business or property, J Makes an assignment for the benefit of creditors, K Has any adverse change in financial condition or business operation that Lender believes may materially affect Borrowers ability to pay this Note, L Reorganizes merges, consolidates, or otherwise changes ownership or business structure without Lender's prior written consent, or M Becomes the subject of a civil or criminal action that Lender believes may materially affect Borrower's ability to pay this Note SBA FORM 147 (10/22198) Previous editions obsolete PROMISSORY NOTE Loan No 1361505642 (Continued) 6 LENDER'S RIGHTS IF THERE IS A DEFAULT Without notice or demand and without giving up any of its rights, Lender may A Require immediate payment of all amounts owing under this Note, B Collect all amounts owing from any Borrower or Guarantor, C File suit and obtain judgement, D Take possession of any Collateral, or E Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement 7 LENDER'S GENERAL POWERS Without notice and without Borrower's consent, Lender may Page 3 A Bid on or buy the Collateral at its sale or the sale of another lienholder at any price it chooses, B Incur expenses to collect amounts due under this Note, enforce the terms of this Note or any other Loan Document, and preserve or dispose of the Collateral Among other things, the expenses may include payments for property taxes prior liens, insurance, appraisals, environmental remediation costs, and reasonable attorney's fees and costs If Lender incurs such expenses, ?t may demand immediate repayment from Borrower or add the expenses to the principal balance, C Release anyone obligated to pay this Note, O Compromise, release, renew, extend or substitute any of the Collateral, and E Take any action necessary to protect the Collateral or collect amounts owing on this Note 8 WHEN FEDERAL LAW APPLIES When SBA is the holder, this Note will be interpreted and enforced under federal taw, including SBA regulations Lender or SSA may use state or local procedures for filing papers, recording documents giving notice, foreclosing liens, and other purposes By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability As to this Note, Borrower may not claim or assert against SBA any local or state law to deny any obligation, defeat any claim of SBA, or preempt federal law 9 SUCCESSORS AND ASSIGNS Under this Note, Borrower and Operating Company include the successors of each, and Lender includes its successors and assigns 10 GENERAL PROVISIONS A All individuals and entities signing this Note are jointly and severally liable B Borrower waives all suretyship defenses C Borrower must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender's liens on Collateral D Lender may exercise any of its rights separately or together as many times and ?n any order it chooses Lender may delay or forgo enforcing any of its rights without giving up any of them E Borrower may not use an oral statement of Lender or SBA to contradict or after the written terms of this Note F If any part of this Note is unenforceable, all other parts remain in effect G To the extent allowed by law, Borrower waives all demands and notices ?n connection with this Note, including presentment, demand, protest, and notice of dishonor Borrower also waives any defenses based upon any claim that Lender did not obtain any guarantee, did not obtain, perfect, or maintain a lien upon Collateral, impaired Collateral, or did not obtain the fair market value of Collateral at a sale 11 STATE SPECIFIC PROVISIONS SBA FORM 147 (10/22/98) Previous editions obsolete PROMISSORY NOTE 0 .1 Loan No 1361505642 (Continued) Page 4 12 BORROWER'S NAME(S) AND SIGNATURE(S) By signing below, each individual or entity becomes obligated under this Note as Borrower BORROWER SMITH AUTO BODY SHOP, INC D/B/A SMITH'S AUTO BY &g??er? hld??Lr, (Seal) By // (Seal) BrWh L John , President Smith Auto Body Kathryn S Wd Vice President o Smith Auto Body Shop, Inc dro/a Smith's Auto Shop, Inc dfb/a Smith's Auto ATTEST /' f ?r J / J?, J ) (Corporate Seal j 9lLn'Secretary or Asses nt Secretary/ S "The guaranteed portion of the outstanding principal balance of this /'/T note has been transferred to a Registered Holder for value." May 9, 2002 SBA FORM 147 (10/22/98) Previous editions obsolete >4; :; ? roe ®4319A?3d; S3!H3S 00006 IIIMNIIWIIAWIIIWIIIA BUSINESS LOAN AGREEMENT ncipai Loan Oate etufity all CsU? t 1000.00 _ cctnt Ott c ` ? OT 27 2.OOi 0&dOtX>: 13?v6A :.- O?NABFltSet1 Relerenes in the shaded area are for lenders use only and do not limit the a Any item above containin PWability of this document to any particular ben or item. 9 ••••• has been omdtud dua In tort he.,.rh h;...aa.w.. Borrower: Smith Auto Body Shop, Inc. dlb/a Smith's Auto Lender: Commerce Bank, N.A. (TIN: 25.18!9523) 5215 Simpson Ferry Road 1701 Route 70 East Mechanicsburg, PA 17055 Cherry Hill, NJ 08034 THIS BUSINESS LOAN AGREEMENT dated July 27, 2001, Is made and executed between Smith Auto Body Shop, Inc. dlbla Smith's Auto ("Borrower") and Commerce Bank, N.A. ("Lender") on the following tams and conditions. Borrower has recehrod prior commercial bans from Lender or has applied to Lender for a commercial ban or loans or other financial accommodations, Including those which may be described on any exhibit or schedule attached to this Agreement (`Loan"). Borrower understands and agrees that: (A) In granting, renewing, or extending any Loan, Lender is relying upon Borrower's representations, warranties, and agreements as set forth In this Agreement, and (B) all such Loans shall be and remain subject to the terms and conditions of this Agreement. TERM. This Agreement shall be effective as of July 27, 2001, and shall continue In full force and effect until such time as all of Borrower's Loans In favor of tender have been paid in full, Including principal, interest, costs, expenses, attorneys' fees, and other fees and charges, or unfit such time as the parties may agree in writing to terminate this Agreement. CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial Advance and each subsequent Advance under this Agreement shall be subject to the fulfillment to Lender's satisfaction of all of the conditions set forth in this Agreement and in the Petaled Documents. Loan Documents. Borrower shall provide to Lender the following documents for it* Loan: (1) the Note; (2) Security Agreements granting to Lender security interests in the Collateral; (3) financing statements and all other documents perfecting Lender's Security Interests; (4) evidence of insurance as required below; (5) guaranties; (6) together with all such Related Documents as Lender may require for the Loan; all in form and substance satisfactory to Lender and Lender's counsel. Borrower's Authorization. Borrower shall have provided in form and substance satisfactory to Lender properly certified resolutions, duty authorizing the execution and delivery of this Agreement, the Note and me Related Documents. In addition, Borrower shall have provided such other resolutions, authorizations, documents and instruments as Lender or its counsel, may require. Payment of Fees and Expenses. Borrower shall have paid to Lender an fees, charges, and other expenses which we then due and payable as specified in this Agreement or any Related Document. Representations and Warranties. The representations and warranties set forth In this Agreement, In the Related Documents, and In any document or certificate delivered to Lender under this Agreement are true and correct No Event of Default There shall not exist at hate time of any Advance a condition which would constitute an Event of Default under this Agreement or under any Related Document. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as of the date of this Agreement as of the date of each disbursement of loan proceeds, as of the date of any renewal, extension or modification of any Loan, and al alllimes any Indebtedness exists: Orga?izavirtue tio oB rr wer of t corporar ? MW' and at ant times shall be, duty organized. validly existing, and in good standing under and Pennsylvania. Borrower is duly authorized to transact business in alf other states in which Borrower is doing business, having obtained all necessary filings governmental licenses and approvals for each stale in which Borrower Is doing business. Specifically. Borrower is, and at all times shall be, duty qualified as a foreign corporation in all states in which the failure to so qualify would have a material adverse effect on ks business or financial condition. Borrower has the foul power and authority to own its properties and to transact the business in which it is presently engaged or Presently proposes to engage. Borrower meinleirq an office at 5215 Simpson Road. Mechanicsburg, PA 17055. Unless Borrower has designated otherwise in writing, the principal office is the office at which Borrower kFeeps its books and records including its records concerning the Collateral. Borrower will notify Lender prior to any change In the location of Borrower's stale of organization or arty change in Borrower's name. Borrower shall do at things necessary fo preserve and to keep In full force and effect its existence, rights and privileges, and shall comply with all regulations, rules, ordinances, statutes, orders and decrees of any governmental or quasi-govemmental authority or court applicable to Borrower and Borrower's business activities. Assumed Business Names. Borrower has filed or recorded all docurnem or filings required by law relating to all assumed business names used business aer. Excluding the name of norrower, the fosowing Is a complete fist of all assumed business names under which Borrower does Smith's Auto Authorization. Borrower's execution, delivery, and performance of this Agreement and all the Related Documents have been duty authorized by an necessary action by Borrower and do not conflict with, result In a violation of, or constitute a default under (1) any Provision of Borrower's articles of ncorporation or organization, or bylaws, or any agreement or other instrument binding upon Borrower or (2) any low, govemmental regulation, court decree, or order applicable to Borrower or to Borrower's propertes. Financial Information. Each of Borrower's financial statements supplied to Lender truly and completely disclosed Borrower's financial condition as of the date of the statement, and there has been no material adverse change In Borrower's financial condition subsequent to the dais of the most recent financial statement supplied to Larder. Borrower has no material contingent obligations except as disclosed in such financial statements. Legal Effect. This Agreement constitutes, and any instrument or agreement Borrower is required to give order this Agreement when delivered will constitute legal, valid, and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms. Properties. Except as contemplated by this Agreement or as previously disclosed in Borrower's financial statements or in writing to Lender and as accepted by Lender, and except for property tax liens for taxes not presently due and payable, Borrower owns and has good title to all of Borrower's properties It" and clear of all Security Interests, and has riot executed any security documents or financing statements relating to such properties. AN of Borrower's properties are tilled in Borrower's legal name, and Borrower has not used. or filed a financing statement under. any other name for at least he last five (5) years. Hazardous Substances. Except as disclosed to and acknowledged by Lender n writing, Borrower represents and warrants that: (1) During the period of Borrower's ownership of Borrower's Collateral, there has been no use, generation manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from any of the Collateral. (2) Borrower has no knowledge of, or reason to believe that there has been (a) any breach or violation of any Environmental Laws; (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Collateral by any prior owners or occupants of any of the Collateral; or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters. (3) Neither Borrower nor any tenant, Contractor, agent Of other authorized user of any of the Collateral shah use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from any of the Collateral; and any such activity shall be conducted in compliance with all applicable federal, stale, and local laws, regulations, and ordinances, including without limitation all Environmental Laws. Borrower authorizes Lender land Its agents b enter upon the Collateral to make such inspections and tests as Lender may deem appropriate to deterrtlne compliance of th4 Collateral with this section of the Agreement. Any Inspections or tests made by Larder shall be at Borrower's expense and for Lender's purposes only and shah not be construed to create any responsibiity or liability an the pert of Lender to Borrower or to any other person. The representations and warranties contained herein are based on Borrower's due diligence in investigating the Collateral for Substances hazardous any contribution in stheaeventaBorrower becomes lie eoforwcleanup hereby (otherrcosts un err waives such laws, and (2) aagainst grees toorxkmr indemnity or harmless Lender against arty and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly, or Indirectly sustain or suffer resuitirg from a breach of this section of the Agreement or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release of a hazardous waste or substance on the Collateral. The provisions of this section of the Agreement, including the obligation to indemnify, shall survive the payment of the Indebtedness and the termination, expiration or satisfaction of INs Agreement and shall not be affected by Lenders acquisition of any interest in any of the Collateral, whether by foreclosure or otherwise. BUSINESS LOAN AGREEMENT _oan No: 1361505642 (Continued) Page 2 Taxes. To the best of Borrower's knowledge, all of Borrower's tax returns and reports that are a were required to be filed, have been filed, and all taxes, assessments and other governmental charges have been paid in full, except those presently being or to be contested by Borrower in good faith in the ordinary course of business and for which adequate reserves have been provided. Lien Priority. Unless otherwise previously disclosed to Lender in writing. Borrower has not entered Into or granted any Security Agreements, or permitted the filing or attachment of any Security Interests on or affecting any of the Collateral directly or indirectly securing repayment of Borrower's Loan and Note, that would be prior or that may in any way be superior to Lender's Security Interests and rights in and to such Collateral. Binding Effect. This Agreement, the Note, all Security Agreements (if any), and all Related Documents are binding upon the signers thereof, as well as upon their successors. representatives and assigns, and are legally enforceable in accordance with their respective terms. %FFiRMATIVE COVENANTS. Borrower covenants and agrees with tender that, so long as this Agreement remains in effect, Borrower will: Notices of Claims and Litigation. Promptly inform Lender in writing of (1) all material adverse changes in Borrower's financial condition, and (2) all existing and as threatened litigation, charms, investigations, administrative proceedings or similar actions affecting Borrower or any Guarantor which could materially affect the financial condition or Borrower or the financial condition of any Guarantor. Financial Records. Maintain its books and records in accordance with GAAP, applied on a consistent basis, and permit Lender to examine and audit Borrower's books and records at all reasonable times. Financial Statements. Fumish Lender with the following: Annual Statements. As soon as available, but in no event later than one-hundred-twenty (120) days after ft end of each fiscal year, Borrower's balance sheet and income statement for the year ended, reviewed by a certified public accountant satisfactory to Lender. Tax Rotuma. As soon as available, bul in no event later than one-hundred-twenty (120) days after the applicable filing date for the lax reporting period ended, Federal and other governmental tax returns, prepared by a certified pudic accountant satisfactory to Lender. All financial reports required to be provided under this Agreement shall be prepared in accordance with GAAP, applied on a consistent basis, and candied by Borrower as being true and correct. Additional Information. Furnish such additional information and statements, as Lender may request from.11me to time. Insurance. Maintain fire and other risk insurance, pudic liability insurance, and such other insurance as Lender may require with respect to Borrower's properties and operations, M form, amounts, coverages and with Insurance companies acceptable to Lender. Borrower, upon request of tender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least thirty (30) days prior written notice to Lender. Each insurance policy also shall include an endorsement providing that coverage in favor ol Lender will not be irrpaued in any way by any act omission or default of Borrower or any other person. In connection with all policies covering assets in which Lender holds or is offered a security Interest for the Loans, Borrower will provide Lender with such lender's loss payable or other endorsements as Lender may require. Insurance Reports. Fumish to Lender, upon request of Lender, reports on each existing insurance policy showing such information as Lender may reasonably request, including without imitation the following: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; (a) the properties insured: (5) the then current property values on the basis of which Insurance has been obtained, and the manner of determining time values; and (6) the expiration date of the poky. In addition, upon request of Lender (however not more omen than annually), Borrower will have an independent appraiser satisfactory to Lender determine, as applicable, the actual cash value or replacement cost of any Collateral. The cost of such appraisal shall be paid by Borrower. Guaranties. Prior to disbursement of any Loan proceeds, l mish executed guaranties of the Loans in favor of Lender, executed by the guarantors named below, on Lender's forms, and in the amounts and under the conditions set forth in those guaranties. Names of Guarantors Amounts Brien L Johnson Unlimited Kathryn S Wiles Unlimited Other Agreements. Comply with all terns and conditions of as other agreements, whether now or hereafter existing, between Borrower and any other party and notify Lender Immediately In writing of any default In connection with any other such agreements. Loan Proceeds. Use as Loan proceeds solely for the ?allowing specific purposes: Purchase business known as Smith Auto end working ca ittsl. Taxes, Charges and Liens. Pay and discharge when dire all of is Indebtedness and obligations, inckxflrg without limitation all assessments, taxes, governmental *charges, levies and hens, of every kind and nature, unposed upon Borrower or its properties, income, or profits, prior to the date on which penalties would attach, and all lawful claims that, i unpaid, might become a fen or charge upon any of Borrower's, properties, income, or profits. Performance. Perform and comply, in a timely manner, with all terms, conditions, and provisions eel forth in this Agreement in the Related Documents, and in all otter instruments and agreements between Borrower and Lender. Borrower shall notify Lender immediately in writing of any default in connection with any agreement. Operations. Maintain executive and management personnel with substantially the same qualsioatlons and experience as the present executive and management personnel; provide written notice to Lender of any change in executive and management personnel; conduct its business affairs in a reasonable and prudent manner. Environmental Studies. Promptly conduct and complele, at Borrowees expense, all such investigations, studies, samplings and testings as may be requested by Lender or any governmental authority relative to any substance, or any waste or by-product of any substance defined as toxic or a hazardous substance under applicable federal, state, or local law, rule, regulation, order or directive, at or affecting any property or any facility owned, leased or used by Borrower. Compliance with Governmental Requirements. Comply with all laws, ordinances, and regulations, now or hereafter in effect of all governmental authorities applicable to the conduct Of Borrower's properties, businesses and operations, and to the use or occupancy of the Collateral, including without limitation, the Americans With Disat'Aitles Act. Borrower may contest In good faith any such law, ordnance, or regulation and withhold compliance during any proceeding, Including appropriate appeals, so long as Borrower has notified Lender in writing prior to doing so and so lag as, in Lender's sole opinion, Lender's Interests in the Collateral are not )eoparwed. Lender may require Borrower to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect larder's Interest. Inspection. Permit employees or agents of Lender at any reasonable time to inspect any and all Collateral for the Loan or Loans and Borrower's other properties and to examine or audit Borrower's books, accounts, and records and to make copies and memoranda of Borrower's books, accounts, and records. If Borrower now or at any time hereafter maintains any records (including without limitation computer generated records and computer software programs for the generation of such records) in the possession of a turd parry. Borrower, upon request of Lander, shall notify such party to permit Lender free access to such records at as reasonable times and to provide Lender with copies of arty records it may request all at Borrower's expense. Compliance Certifloata. Unless waived in wreing by Lender, provide lender at least annually, with a certificate executed by Borrower's chief financial officer, or otter officer or person acceptable to Lender, ce"Ing that the representation& and warranties set forth in this Agreement are true and correct as of the date of the certificate and further certilyi g that, as of to date of the certificate, no Event of Default exists under this Agreement. Environmental Compliance end Reports. Borrower shall comply in an respects with any and all Environmental Laws; not cause or permit to exist, as a result of an IntaMbnat or unintentional action or omission on Borrower's part or on the pan of any third party, on properly owned and/or occupied by Borrower, any environmental activity where damage may result to the envkonment unless such environmental activity Is prsuam to and in compliance with the conditions of a permit issued by the appropriate federal, sate or local governmental sutiorilles; shall lumish to Lender promptly and In any event within tarry (30) days after receipt thereof a copy of am notice, summons, lien, citation, dnecilve, letter or other communication Irom any governmental agency or Instrumentality concerning any Intentional or unintentional action or omission on Borrower's part in connection with any environmental activity whether or not there is damage to the environment and/or other natural resources. Additional Assurances. Make, execute and deliver to Lender such promissory notes, mortgages, deeds of trust, security agreements, assignments, financing statements, instruments, documents and other agreements as Lender or its attorneys may reasonably request to evidence and secure the loans and to perfect as Security Interests. LENDER'S EXPENDITURES. 11 any action or proceeding is commenced that would materially affect Lender's interest in the Collateral Or it Borrower falls to comply with any provision of this Agreement or any Related Documents, including but not limited to Borrower's failure to discharge or pay when due any amounts Borrower is required to discharge or pay under this Agreement or any Related Documents, Lender on Borrower's behatl may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes. liens, security BUSINESS LOAN AGREEMENT Loan No: 1361505642 (Continued) Page 3 interests, encumbrances and other claims, at any time levied or placed on any Colateral and paying all coats for insuring, maintaining and preserving any Collateral. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the dale incurred or paid by Lender to the dale of repayment by Borrower. All such expenses will become a pan of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any Instalment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity. NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this Agreement is in effect, Borrower shall not, without the prior written consent of Lender: Indebtedness and Liens. (1) Except for trade debt Incurred In the normal course of business and Indebtedness to Lender contemplated by this Agreement, create, incur or assume indebtedness for borrowed money, including capital leases, (2) sell, transfer, mortgage, assign, pledge, lease, grant a securely interest in, or encumber any of Borrower's assets (except as allowed as Permitted Liens), or (3) sell with recourse any of Borrower's accounts, except to Lender. Continuity of Operations. (1) Engage in any business activities substantially different then those In which Borrower Is presently engaged, (2) cease operations, liquidate, merge, transfer, acquire or consolidate with any other entity, change as name, dissolve or transfer or salt Collateral out of the ordinary course of business, or (3) pay any dividends on Borrower's stock (other than dividends payable in its stock), provided, however that notwithstanding the foregoing, but orgy so tong as no Event of Default has occurred ands continuing or would result from the payment of dividends, if Borrower is a "Subchapter S Corporation' (as defined in the Internal Revenue Code of 1986, as amended), Borrower may pay cash dividends on its stock to its shareholders from lime to time in amounts necessary to enable the shareholders to pay Income taxes and make estimated income lax payments to satisfy their liabilities under federal and state law which arise solely from their status as Shareholders of a Subchapter S Corporation because of their ownership of shares of Borrower's stock, or purchase or retire any of Borrower's outstanding shares or alter or amend Borrower's capital structure. Loans, Acquisitions and Guaranties. (1) Loan, invest In or advance money of assets, (2) purchase, create or acquire any Interest in any other enterprise or entity, or (3) incur any obligation as surety or guarantor other than in the ordinary course of business. CESSATION OF ADVANCES. If Lender has made any commtment to make any Loan to Borrower, whether under this Agreement or under any other agreement, Lender shall have no obligation to make Loan Advances or to disburse Loan proceeds t: (A) Borrower or any Guarantor is in defaull under the terms of this Agreement or any, of the Related Documents or any other agreement that BorroweV or any Guarantor has with Lender; (B) Borrower or any Guarantor dies, becomes incompetent or becomes insolvent, ties a petition In bankruptcy or similar proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse change in Borrower's financial condition, to the financial condition of any Guarantor, or in the value of any Collateral securing any Loan; or (D) any Guarantor seeks, claims or otherwise attempts to limit, Loan or any other loan with Lender; or (E) Lender in good faith deems itself Insecure, even though no E nxidif or t of Defa a ghat have ra nto r sed rarity of the RIGHT OF SETOFF. To the oxford permitted by applicable law, Lender reserves a right of setoff in an Borrower's accents with Lender (whether checking, savings, or some other account). This includes an accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the Indebtedness against any and all such accounts, and, at Lender's option, to administratively freeze an such accounts to allow Lender to protect Lender's charge and setoff "a provided In this paragraph. DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: Payment Default. Borrower falls to make any payment when due under the Loan. Other Defaults. Borrower falls to comity with or to perform any other term, obligation, covenant or condition contained in this Agreement or in any of the Related Documents or to comply with or to perform any term. Obligation, covenant or condition contained in any other agreement between Lender and Borrower. Environmental Detault Failure of any party to comply with or perform when due any term, obligation, convemant OF condition contained in any environmental agreement executed in convection with any Loan. Default in Favor of Third Parties. Borrower or any Grantor defaults under any ban, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's or any Grantor's property or Borrower's or any Grantor's ability to repay the Loans or perform their respective obligations under " Agreement or any of the Related Documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Agreement or to Related Documents is false or misleading in any material respect, either now or at the time made or lurnished or becomes false or misleading at any tlrhe thereafter. Insolvency. The dissolution or lemhination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a receiver for any part of Borrower's property, any assignment for the beneilt of creditors, any type of creditor workout, or the conwrhencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Defective Collateraesation. This Agreement or any of the Related Documents ceases to be In (Wit lorce and effect (including failure of any collateral document 10 create a valid and perfected security interest or lien) at any time and for any reason. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture repossession or any Other method. proceedings, whether co judicial proceeding, seif. This a garnishment of any of Borrowers accounts, including d any gove, with l agency against any collateral se lg the Loan. This there is a g nose accountss, with Lender. However, this t Event vent it Defa iaulf shad not apply If good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of d the credits or forfeiture proceeding and it Borrower gives Lender wrtlen notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, In its sole discretion, as being an adequate reserve or bond torn tame dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. In the event of a death, Lender, at its option, may, but shad not be required to permit the Guarantor's estate to assume uncondifoneiiy, the obligations wising under the guaranty in a manner satisfactory to Lender, and, In doing so, cure any Event of Default. Change In Ownership. Any change in ownership of twenty-five percent (25%) or more of the common stock of Borrower. Adverse Change. A material adverse charge occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of the Loan is impaired. Insecurity. Lender In good faith believes isell insecure fright to Cure. If any default, other than a default on Indebtedness, is curable and it Borrower or Grantor, as the case may be, has rot been given a notice of a similar defaun within the preceding twelve (12) months, it may be cured (and no Event of Default will have occurred) t Borrower or Grantor, as the case may be, affer receiving written notice from Lender demanding cure of such defaull: (1) cure the default within ten (10) days; or (2) if the Cure requires more than ten (10) days, immediately initiate slope which Lender deems In Lender's sole discretion to be sufficient to cure the default and thereafter continue and complete an reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where otherwise provided in this Agreement or the Related Documents, all commifinenis and obligations of Lender under this Agreement or the Related Documents or any other agreement immediately will terminate (including any obligation to make further Loan Advances or disbursements), and, at Lender's option, all Indebtedness Immediately will become due and payable, an without notice of any kind to Borrower, except that in the case of an Event of Default of the type described in the 'Insolvency" subsection above, such acceleration shall be automatic and not optional. In addition, Larder shad have all the rights and remedies provided in the Related Documents or avanable at law, in equity, or otherwise. Except as may be prohibited by applicable law, all of Lender's rights and remedies shall be cumulative and may be exercised singularly or concurrently. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Borrower or of any Grantor shall not affect Lender's right to declare a default and to exercise its rights and remedies. COMMITMENT LETTER COMPLIANCE. This loan Is contingent upon Borrower's compliance with all of to terms and conditions contained in the commitment letter Issued by Lender to Borrower on or about March 23, 2001 upon breach of any term or condition contained fhereln, Lender shall have the right to declare this ban in default and demand payment In full of the principal balance remaining unpaid, together with an Interest which shall have accrued thereon. BUSINESS LOAN AGREEMENT .oan No: 1361505642 (Continued) Page 4 onnection with the loan which was incorrectly drafted and/or signed, as well as any document or instrument which should have boon signed at or nor to the closing of the Loan, but which was not so signed and delivered. Borrower agrees to comply with any written request by Lender within ten 10) days after receipt by Borrower of such request. Failure by Borrower to so comply shall, at the option of Lender, upon notice to Borrower, constitute n event of default under the Loan. EASES. All leases pursuant to which Borrower shall lease to third parties portions of any property lies) pledged as security for the repayment of this en shall be subject to prior written approval by Lender (1) as to form and content and (ii) as to the identity and financial condition of the lessees. E-APPRAISAL. In the event that during the term of this loan or any extension thereof. Lender shall deem it necessary to obtain a current appraisal of ryr propeny(ies) pledged as security for the repayment of this loan, Lender shall engage the services of an appraiser acceptable to it and Borrower gross to pay the fee charge by such appraiser in providing the current appraisal. I.S. SMALL BUSINESS ADMINISTRATION CONDITIONS. The United States Small Business Administration (SBA) has authorized a Guarantee of a an from Lender to Borrower. In consideration of the promises on this Agreement and for other good and valuable consideration, Borrower and ender shall comply with the terms and conditions of the Small Business Authorization issued on April 10, 2001, and SBA's Participating Lander Rules s defined in the Guarantee Agreement between Lander and SBA. Borrower agrees to do everything necessary for Lender to comply with the looms nd conditions of said Authorization. Failure to abide by any of the Borrower requirements wig constitute an additional event of default under the Note nd other loan documents . IOTICE. Any request notices For Accounting and Collateral Release must be directed to the Vice President of Loan Servicing at Coo merce Bank, N.A. oan Servicing Caller. 1006 Astoria Boulevard, Cherry Hill, New Jersey 08034. VSCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: Amendments. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Attorneys' Fees; Expenses. Borrower agrees to pay upon demand all of Lender's costs and expenses, including Lender's atWrneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Agreement. Lender may hire or pay someone else to help enforce this Agreement, and Borrower shat pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expanses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction). appeals, and any anticipated post-judgment collection services. Borrower also shall pay all court costs and such additional fees as may be directed by the court. Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement. Consent to Loan Participation. Borrower agrees and consents to Lander's sale or transfer, whether now or later, of one or more participation interests in the Loan to one or more purchasers, whether related or unrelated to Lender. Lender may provide, without arty limitation whatsoever, to any one or more purchasers, or potential purchasers, any information or knowledge Lender may have about Borrower or about any other mater relating to the Loan, and Borrower hereby waives any rights to privacy Borrower may have with respect to such matters. Borrower additionally waives any and all notices of sale of participation interests, as well as all notices of any repurchase of such participation interests. Borrower also agrees that the purchasers of any such participation interests will be considered as the absolute owners of such interests in the Loan and will have as the rights granted under the participation agreement or agreements governing the sale of such participation interests. Borrower further waives as rights of offset or counterclaim that it may have now or later against Lender or against any purchaser of such a participation interest and uncrxxiitbnally agrees that ether Lender or such purchaser may enforce Borrower's obligation under the Loan Irrespective of the ladure or insolvency of any holder of any interest in to Loan. Borrower further agrees that the purchaser of any such participation Interests may enforce its interests irrespective of any personal claims or defenses that Borrower may have against Lender. Applicable Law. The Loan secured by this Nan was mane under a United States Small Business Administration (SBA) nationwide program which uses tax dollars to assist small business owners. If the United States Is seeking to enforce this document, then under SBA regulations: (a) When SBA Is the holder of the Note, this document and all documents evidencing or securing this Loan will be construed In accordance with federal law. (b) Lander or SBA may use foal or state procedures for purposes such as NIMg papers, recording documents, giving notkm foreclosing liens, and other purposes. By using these procedures, SBA does not wive any federal Immunity from local or state control, penalty, tax or liability. No Borrower or Guarantor may claim or assert against SBA any local or state law to deny any obligation of Borrower, or defeat any chin of BOA with respect to this Loan. Any clause In this docun stril requiring arbitration is not enforceable when SBA Is the holder of the Note secured by this instrument. No Waiver by Lender. Lender shall not be deemed to have waived any fights under this Agreement unless such waiver is given in writing and sighed by Lender. No delay or omission on the part of Lander in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or arty other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Borrower, or between Lender and any Grantor, shell constitute a waiver of any of Lender's rights or of any of Borrower's or any Grantor's obligations as to any fuzee transactions. Whenever the consent of lender is reamed under this Agreement, the granting of such consent by Lender in arty instance shelf not constitute continuing consent to subsequent instances where such consent is requited and in all cases such consent may be granted or withheld In the sole discretion of Larder. Notices. Unless otherwise provided by applicable low, arty notice required to be given under this Agreement shall be given in writing, and shat be effective when actually delivered, when actually received by lelelacsimie (unless otherwise required by taw), when deposited with a nationally recognized overnight courier, or, N malfed, when deposited In the United States mall, as first class, certified or registered rust postage prepaid, directed to the addresses shown near the beginning of this Agreement Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Borrower agrees to keep Lender Informed at all times of Borrowers current address. Unless otherwise provided by applicable law, if there is more than one Borrower, any notice given by Lender to any Borrower is deemed to be notice given to all Borrowers. Severability. If a court of competent jurisdiction finds any provision of this Agreement to be Illegal. Invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision Illegal, Invalid. or unenforceable as to any other circumstance. 0 feasible, the offending provision shall be considered modified so Owl it becomes legal, valid and enforceable, If the offending provision cannot be so modified, s shall be considered dalMed from this Agreement. Unless otherwise required by law, the Illegality, invalidity, or unenforceabil ly of any provision of this Agreement shat not affect the legality, validity or enforceability of arty other provision of this Agreement. Subsidiaries and AflNites of Borrower. To the extent the context of any provisions of this Agreement makes It appropriate, including without imitation any representation, warranty or covenant, the word 'Borrower' as used in this Agreement shat include all of Borrower's subsidiaries and alliates. Notwithstanding the foregoing however, under no circumstances shall this Agreement be construed to require Larder to make any Loan or other financial accommodation to any of Borrower's subsidiaries or affiliates. Successors and Assigns. AN covenants and agreements contained by or on behalf of Borrower shall bind Borrower's successors and assigns and shall ewe to the benefit of Lender and ffs successors and assigns. Borrower shall not, however, have the right to assign Borrower's rights under this Agreement or any Interest therein, without the prim written consent of Lender. Survival of Representations and Warranties. Borrower understands and agrees that in making the Loan, lender is relying on all representations, warranties, and covenants made by Borrower in this Agreement or in any certificate or other Instrument delivered by Borrower to Larder under this Agreement or the Related Documents. Borrower further agrees that regardless of any invesfigelon made by Lender, all such representations, warranties and covenants will survive the making of the Loan and delivery to Lender of the Related Documents, shat be continuing in nature, and shat remain in fug force and effect until such lime as Borrower's indebtedness shat be paid In full, of until this Agreement shalt be lerminaled in the manner provided above, whichever is the last to occur. Time Is of the Essence. Time is of the essence in the performance of this Agreement. Waive Jury. All parties to this Agreement hereby waive the right to any jury trial In any action, proceeding, or counterclaim brought by any party against any other party. DERNITIONS. The Following capitalized words and terms shat have the following meanings when used in this Agreement. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Agreement shell have the meanings attributed to such terms In the Uniform Commercial Code. Accounting words and terms not otherwise defined in this Agreement shall have the meanings assigned to [hem In accordance with generally accepted accounting principles as In effect on the date of this Agreement: Advance. The word 'Advance' means a disbursement of Loan funds made, or to be made, to Borrower or on Borrower's behalf an a line of credit or. multiple advance basis under the terms and conditions of this Agreement. Loan No: 1361505642 BUSINESS LOAN AGREEMENT (Continued) Page 5 Am omens' together word ' with Agreerrhent' means this Business Loan Agreement, es this Business Loan Agreement all exhibits and schedules attached to this Business Loan Agreement from time mAy amended or modified from to time. Borrower. The word "Borrower' means Smith Auto Body Shop. Inc, dtWe Smith's Auto , and an other whatever capacity. persons and entities signing the Note in Collateral. The word 'Collateral' means au property and assets granted as collateral security for a Loan, whetter reel or whether granted directly or indirectly whether granted now or in the future, and whether granted in the form of a security Interest, mortgage, collateral personal property, mortgage, deed of trust, assignment. pledge, crop pledge, chattel mortgage equipment trust, conditional sale. !rust receipt Non, charge, lien or title retention contact, lease or coonatlal mot inter chaaal trust tatter's lien, any other security of lien interest whatsoever, whether created by law, contract, or otherwise, tgrtment intended as a security device, or Environmental Laws. The words "Environmental Laws' mean any and all state, Worst and local statutes, regulations and ordinances relating to the protection of human health or the environment, Including without limitation the Comprehensive Environmental Response. C Liability Act of 1980, as amended, 42 U.S.C. Section 9801, at seq. ('CERCLA'), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Tr orrtpertsation, and Act, 42 U.S.C. Section 6901, at seq., or otter applicable state a or federal laws, rules. r re 1801, at seq., the Resource Conservation and Recovery Agreement. Event of Default. The words 'Event of Default' mean any of the events of defatnlt?sletabrth in thlg q pursuant Agreement in default section of this GAAP. The word 'GAAP' means generally accepted accounting principles, Grantor. The word 'Grantor' means each and all of the persons or entities granting a Security Interest In any Collateral for the Loan, Including without limitation all Borrowers granting such a Security Interest. Guarantor. The word 'Guarantor' means any guarantor, surety, or accorvrodation party of any or all of the Loan. Guaranty. The word 'Guaranty* means the guaranty from Guarantor to Lender, Including Hazardous Substances. The words 'Hazardous Substances' mean materials that,, because off Ihemk uantiguaranty tr tior part of ce Note. or infectious characteristics, may cause or pose a present or q N. corwhenaan at i stored. disposed d, generated, manufactured, transported or otherrwiisezhandled. The words "Hazar vius Subs when improperly used In their chemical broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or Y used, heated, Environmental Laura. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum or listed under the Indebtednesss. The word "Indeebtedness' means the indebtedness by-products or any traction interest tres. with all other bbed tedness evidenced by the Note or Related Documents Inci the Related Documents. edness and costs and expenses for which Borrower Is responsible under this Aaeemert® a Pnnc and uding Lender. The word "Lender' means Commerce Bank, N.A., As successors and assigns. Loan. The word 'Loan' means any and all loans and financial accommodations from Lender to Borrower however evidenced, Including without limitation those loans and financial accommodations described herein schedule attached to this Agreement from time to time. whether now or harasser existing, and or described on any exhibit or Note. The word 'Note' means the Note executed by Borrower in the principal amount of $228,000.00 dated JteY 27, 2001, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the nple or credit agreement. Permitted Liens. The words "Permitted Liens" mean (1) liens and security interests securing Indebtedness owed by Borrower to Lender; (2) liens for taxes, assessments, or similar charges either not yet due or being contested in good faith: warehousemen, or carriers, or other like liens arising in the ordinary course of business and secur purchase money liens or (3) Yens of mett'riabnen mechanics, business to secure liens or d rc s omoneyy s curity interests upon or in or obligations which are not yet deMng ows; (4) Indebte tiue ness to secure and Liens"; g the date of this Agreeme tint or?? acquired c n staid n goh par in the ordinary course Agreement (5) liens and security interests which, as of the dale of this Agreement, have the been paragraph to of the Lender in writing; and (6) those liens and security interests which in the aggregate constitute an Immaterial and iris and approved b with respect to the net value of Borrower's assets. Pproved by Related Insignificant monetary amount Documents. The words 'Pelated Documents' mean all promissory notes, credit agreements, loan agreements, guaranties, security ag:s„rnents. mortgages, deeds of trust, security deeds, collateral more agreements and documents, whhethher now or hereaaer existing. executed'n connection with the Loan. gages' and all other instruments, Y 9 eement. The words 'Security Agreement' mean and Include without Ymitation any agreements, understandings or other agreements, whether created by law, contract, or o IMeresl. themre, Promises, covenants, arrange evide^oitp, governing, representing, or creating a Security y Security Interest. The words "Security Interest- mean, without limitation, any and all types of collateral security, form of a Ilan, charge, encumbrance, mortgage, deed of trust, security deed, assignment. mortgage, chattel trust, factor's lien, equipment trust, conditional sale, trust receipt. "an Ne?enpresent and future. whether in ens a security device, or any other sec op pledge, chattel mortgage, collateral chattel security or lien interest whatsoever whether created contract, by law. toe rect, lease a consignment intended as 3ORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREE sIMENT AND BORROWER AGREES TO TS TERMS, THIS BUSINESS LOAN AGREEMENT IS DATED JULY 27, 2001. THIS AGREEMENT 13 GIVEN UNDER SEAL AND R IS INTENDED 'HAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. IORROWER: MITH A BODY SHO ,INC. D/BIA SMITW'S AUTO y Brisn L Johnson , s ant of mith utodY (Seel) Shop, Inc, d/b/a 3mi 's Aulo c-NDER: ey: t Auto ody seal) *Sh7i-c- Wi-Wh-7AW". dlbla Poo *q J;MWMERCE ANN, N.A. of ized rat am) - - ®? Lonna L i7arino, Closing Coordinator I" LLLIVMC.WICYK .RYp, rwu, MOM OC s-:wdas 00006 IRECOFRDATION REQUESTED BY: Commerce Bank, N.A. 1701 Route 70 East Cherry Hill, NJ 08034 WHEN RECORDED MAIL TO: Commerce Bank N.A. 1701 Route 70 East Cherry Hill, NJ 08034 SEND TAX NOTICES TO: Commerce Bank N.A. 1701 Route 7o East COVER SHEET MORTGAGE (Participation) DATE: 07-27-2001 go-BE-R7 P. ZIEGLER Rc0 4RI OF DEEDS GUMBERL414D 00"TY-PA • pl w 6 Pill 12 56 / 9 &/6DS& MORTGAGOR: Brian L Johnson and Kathryn S Wiles, whose address is, 300 Stumpstown Road, Mechanicsburg, PA 17055 MORTGAGEE: Commerce Bank, N.A., whose address is 1701 Route 70 East, Cherry Hill, NJ 08034 MORTGAGE 136-1 SG 6 (Participation) This mortgage made and entered into this July 27, 2001 by and between Brian L Johnson and Kathryn S Wiles, whose address is, 300 Stumpstown Road, Mechanicsburg, PA 17055 (hereinafter referred to as mortgagor) and Commerce Bank, N.A. (hereinafter referred to as mortgagee). who maintains an office and place of business at 1701 Route 70 East, Cherry Hill, NJ 06034, wtTNESSETH, that for the consideration hereinafter stated, receipt of which is hereby acknowledged, the mortgagor does hereby mortgage, sell, grant, and convey unto the mortgagee, his successors and assigns, all of the following described property situated and being in Cumberland County, Commonwealth of Pennsylvania: The Real Property is designated on the official tax map for the County of Cumberland, Commonwealth of Pennsylvania as Tax Parcel #22-11-0278-054, and is more fully described in Deed Book no. 167 and Page no. 159. The Real Property or its address is commonly known as 300 Stumpstown Road, Mechanicsburg, PA 17055. The Real Property tax identification number is 22-11-0278-054. Together with and including all buildings, all fixtures, including but not limited to all plumbing, heating, lighting, ventilating, refrigerating, incinerating, air conditioning apparatus, and elevators (the mortgagor hereby declaring that it is intended that the items herein enumerated shall be deemed to have been permanently installed as part of the realty), and all improvements now or hereafter existing thereon; the hereddaments and appurtenances and all other rights thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, all rights of redemption, and the rents, issues, and profits of the above described property (provided, however, that the mortgagor shall be entitled to the possession of said property and to collect and retain the rents, issues, and profits until default hereunder). To have and to hold the same unto the mortgagee and the successors in interest of the mortgagee forever in fee simple or such other estate, 9 any, as is stated herein. , The mortgagor covenants that he is lawfully seized and possessed of and has the right to sell and convey said property: that the same is free from all encumbrances except as hereinabove recited; and that he hereby binds himself and his successors in interest to warrant and defend the title aforesaid thereto and every part thereof against the claims of all persons whomsoever. This instrument is given to secure the payment of a promissory note dated July 27, 2001 in the principal sum of $223,000.00 signed by one or more authorized officers in behalf of Smith Auto Body Shop, Inc. d/b/a Smith's Auto. SBA Form 928 (11-85) USE 2.713 EDITION UNTIL EXHAUSTED D+?? 7??f??4t 14 Said promissory note was given to secure a loan in which the Smag Business Administration, an agency of the United States of America, has participated. In compliance with section 101.1 (d) of the Rules and Regulations of the Small Business Administration (13 C.F.R. 101.1(d)j, this instrument is to be construed and enforced in accordance with applicable Federal law. 1. The mortgagor convenants and agrees as follows: I a. He will promptly pay the indebtedness evidenced by said promissory note at the times and in the mariner therein provided. b. He will pay all taxes, assessments, water rates, and other governmental or municipal charges, fines, or impositions, for which provision has not been made hereinbefore, and will promptly deliver the official receipts therefor to the said mortgagee. c. He will pay such expenses and fees as may be incurred in the protection and maintenance of said property, including the fees of any attorney employed by the mortgagee for the collection of any or all of the indebtedness hereby secured, or foreclosure by mortgagee's sale, or court proceedings, or in any other litigation or proceeding affecting said property. Attorneys' fees reasonably incurred in any other way shall be paid by the mortgagor. d. For better security of the indebtedness hereby secured, upon the request of the mortgagee, its successors or assigns, he shall execute and deliver a supplemental mortgage or mortgages covering any additions, improvements, or betterments made to the property hereinabove described and all property acquired by it after the date hereof (all in form satisfactory to mortgagee). Furthermore, should mortgagor fail to cure any default in the payment of a prior or inferior encumbrance on the property described by this instrument, mortgagor hereby agrees to permit mortgagee to cure such default, but mortgagee is not obligated to do so; and such advances shalt become part of the indebtedness secured by this instrument, subject to the same terms and conditions. e. The rights created by this conveyance shall remain in full force and effect during any postponement or extension of the time of the payment of the indebtedness evidenced by said promissory note or any part thereof secured hereby. f. He will continuously maintain hazard insurance, of such type or types and in such amounts as the mortgagee may from time to time require on the improvements now or hereafter on said property, and will pay promptty when due any premiums thereof. All insurance shall be carried in companies acceptable to mortgagee and the policies and renewals thereof shall be held by mortgagee and have attached thereto loss payable clauses in favor of and in form acceptable to the mortgagee. In event of loss, mortgagor will give immediate notice in writing to mortgagee, and mortgagee may make proof of toss if not made promptly by mortgagor, and each insurance company concerned is hereby authorized and directed to make payment for such loss directly to mortgagee instead of to mortgagor and mortgagee jointly, and the insurance proceeds, or any part thereof, may be applied by mortgagee at its option either to the reduction of the indebtedness hereby secured or to the restoration or repair of the property damaged or destroyed. In event of foreclosure of this mortgage, or other transfer of title to said properly in extinguishment of the indebtedness secured hereby, all right, title, and interest of the mortgagor in and to any insurance policies then in force shall pass to the purchaser or mortgagee or, at the option of the mortgagee, may be surrendered for a refund. g. He will keep all buildings and other improvements on said property in good repair and condition; VAI permit commit, or suffer no waste, impairment, deterioration of said property or any part thereof: in the event of failure of the mortgagor to keep the buildings on said premises and those erected on said premises, or improvements thereon, in good repair, the mortgagee may make such repairs as in its descretion it may deem necessary for the proper preservation thereof; and the full amount of each and every such payment shall be immediately due and payable: and shall be secured by the lien of this mortgage. h. He will not voluntarily create or permit to be created against the property subject to this mortgage any lien or liens inferior or superior to the lien of this mortgage without the written consent of the mortgagee; and further, that he will keep and maintain the same free from the claim of all persons supplying labor or materials for construction of any and all buildings or improvements now being erected or to be erected on said premises. i. He will not rent or assign any part of the rent of said mortgaged property or demolish, or remove, or substantially after any building without the written consent of the mortgagee. j. All awards of damages in connection with any condemnation for public use of or injury to any of the property subject to this mortgage are hereby assigned and shall be paid 10 mortgagee, who may apply the same to payment of the installments last due under said note, and mortgagee is hereby authorized, in the name of the mortgagor, to execute and deliver valid acquittances thereof and to appeal from any such award. k. The mortgagee shall have the right to inspect the mortgaged premises at any reasonable time. 2. Default in any of the covenants or conditions of this instrument or of the note or loan agreement secured hereby Shag terminate mortgagor's right to possession, use, and enjoyment of the property, at the option of the mortgagee or his assigns (it being agreed the mortgagor shall have such right until default). Upon any such default. the mortgagee shall become the owner of all of the rents and profits accruing after default as security for the indebtedness secured hereby, with the right to enter upon said property for the purpose of collecting such rents and profits. This instrument shall operate as an assignment of any rentals on sail property to that extent. 3. The mortgagor covenants and agrees that if he shall fail to pay said indebtedness or any part thereof when due, or shall fail to perform any BK171?1--1]315 covenant or agreement of this instrument or the promissory note secured hereby, the entire indebtedness hereby due, payable, and collectible without notice, at the option of the mortgagee or assigns, regardless of and secured shaft immediately become before or after entry sell said property without appraisement (the mortgagor having waived and assigned to the mortgagee all rights of appraisement): (1) at judicial sale pursuant to the provisions of 28 U.S.C. 2001 (a); or (11) at the option of the mortgagee, either by auction or by solicitation of sealed bids, for the highest and best bid complying with the terms of sale and manner of payment specified in the published notice of sale, first giving four weeks' notice of the time, terms, and place of such sale,by advertisement not less than once during each of said four weeks in a newspaper published or distributed in the county in which said property is situated, all other notice being hereby waived by the mortgagor (and said mortgagee, or any person on behalf of said mortgagee may bid with the unpaid indebtedness evidenced by said note). Said sale shall be held at or on the property to be sold or at the Federal, county, or city courthouse for the county in which the property is located. The mortgagee is hereby authorized to execute for and on behalf of the mortgagor and to deliver to the purchaser at such sale a sufficient conveyance of said property, which conveyance shall contain recitals as to the hg of the mortgagee or any agent or attorney of the mortgagee aPPenkt the default , the agent and attorney in fact of said mortgagor to make such recitals and d to execute said conveyance and hereby covenants and agrees that the recitals so made shall be effectual to bar all equity or right of redemption, homestead, dower, and all other exemptions of the mortgagor, all of which are hereby expressly waived and conveyed to the mortgagee; or (111) take any other appropriate action pursuant to state or Federal statute either in state or Federal court or otherwise for the disposition of the property. In the event of a safe as herein before provided, the mortgagor or any persons in possession under the mortgagor shalt then become and be tenants holding over and shall forthwith deliver possession to the purchaser at such sale or be summarily dispossessed, in accordance with the provisions of law applicable to tenants holding over. The power and agency hereby granted are couoled with an interest and are irrevocable by death or otherwise, and are granted as cumulative to the remedies for collection of said indebtedness provided by law_ 4. The proceeds of any sale of said property in accordance with the preceding paragraphs shalt be applied first to pay the costs and expenses of said sale, the expenses incurred by the mortgagee for the purpose of protecting or maintaining said property, and reasonable attorneys' fees; secondly, to pay the indebtedness secured hereby; and thirdly, to pay any surplus or excess to the person or persons legally entitled thereto. 5. In the event said property is sold at a judicial foreclosure sale or pursuant to the power of sale hereinabove granted, and the proceeds are not sufficient to pay the total indebtedness secured by this instrument and evidenced by said promissory note, the mortgagee will be entitled to a deficiency judgment for the amount of the deficiency without regard to appraisement. 6. In the event the mortgagor fails to pay any Federal, state, or local tax assessment, income tax or other tax lien, charge, fee or other expense charged against the property the mortgagee is hereby authorized at his option to pay the same. Any sums so paid by the mortgagee shall be added to and become a part of the principal amount of the indebtedness evidenced by said note, subject to the same terms and conditions. If the mortgagor shall pay and discharge the indebtedness evidenced by said promissory note, and shall pay such sums and shall discharge all taxes and liens and the costs, fees, and expenses of making, enforcing, and executing this mortgage, then this mortgage shall be canceled and surrendered. 7. The covenants herein contained shall bind and the benefits and advantages shall inure to the respective successors and assigns of the parties hereto. Whenever used, the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders. 8. No waiver of any covenant herein or of the obligation secured hereby shall at any time thereafter be held to be a waiver of the terms hereof or of the note secured hereby. 9. A judicial decree, order, or judgment holding any provision or'portion of this instrument invalid or unenforceable shall not in any way impair or preclude the enforcement of the remaining provisions Of portions of this instrument. 10. Any written notice to be issued to the mortgagor pursuant to the provisions of this instrument shall be addressed to the mortgagor at Brian L Johnson and Kathryn S Wiles, 300 Stumpstown Road, Mechanicsburg, PA 17055 and any written notice to be issued to the mortgagee shall be addressed to the mortgagee at Commerce Bank, N.A.; 1701 Route 70 East; Cherry Hill, NJ 06034. 11. The Loan secured by this lien was made under a United States Small Business Administration (SBA) nationwide program which uses tax dollars to assist small business owners. If the United States is seeking to enforce this document, then under SBA regulations: (a) When SBA is the holder of the Note, this document and all documents evidencing or securing this Loan will be construed in accordance with federal law. (b) Lender or SBA may use local or state procedures for purposes such as filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using these procedures, SBA does not waive any federal immunity from local or state control, penalty, tax or liability. No Borrower or Guarantor may claim or assert against SBA any local or state law to deny any obligation of Borrower, or defeat any claim of SBA with respect to this Loan_ Any clause in this document requiring arbitration is not enforceable when SBA is the holder of the Note secured by this instrument. OK 172' 9P'G131 b EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS TERMS, AND HAS ACCEPTED DELIVERY OF THIS INSTRUMENT, AS OF THE DAY AND YEAR AFORESAID. THIS MORTGAGE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS MORTGAGE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. GRANTOR: x (Seal) Brian L Johnson, I ually Signed, acknowled° and delivered in the presence of: x? +. Witness Witness x n J Ka WI P vidually (Seal) LENDER: COMMERC ANK, N.A. uthor6fed Signer (Sean Donna L Marino, Closing Coordinator CERTIFICATE OF RESIDENCE I hereby certify. that the precise address of the mortgagee, Commerce Bank, N.A., herein is as follows; 1701 Route 70 East, Cherry Hill, NJ DOM Donna L MarinOr AW1 o, Closing Coordinator INDIVIDUAL ACKNOWLEDGMENT -CQWWNWFel TNOF PFNNQVIA(AMSE/ ) SS COUNTY OF t=?= F On this, the day of _ L o _!! y 20 ?_. before me .,a ti' the undersigned Notary Pubic, personalty appeared Brian L Johnson and n satisfactorily proven) to be the person whose names are subscribed to the within instrument, and acknowledged that to i W . . Purposes therein contained. ?1 _ flle?slpne for the ' .; 61 In witness whereof, i hereunto set my hand and official seat. •. Q ,7 '; ? o ....: ? ? . ...,. I.CL yr `1 1 Notary Public in and for the State • :, e v,, NOTM PWIC OF NEWS DIY COMMISSION EXPIRES NOV. 03, 2004 BK 172 9FG-4317 LENDER ACKNOWLEDGMENT ) 6?1 may affsMMM01111"M State of New Jersey )Ss COUNTY OF Hunterdon ) On this, the 27th day of July .20 01 , before me the undersigned Notary Public, Personally appeared Dnnna T. f' who acknowledged himself or herself to be the of a lender, and that he or she as such Closi contained being authorized to do so, executed the foregoin! by signing the name of the leader by himself or herself as In witness whereof, I hereunto set my hand and official seal. Thomas J. Lanza purposes Thomas J. Lanza, Esq. Notary Public in and for the state of Attorney at Law in the State of-New Jersey SBA Form 928 (11-85) USE 2-78 EDITION UNTIL EXHAUSTED SKI 7?_'5F643 18 ALL THAT CERTAIN tract of land situate in the Township of Monroe Cumberland Pennsylvania, being more particularly bounded and described as follows, to County, > vtt. BEGINNING at a steel pin set on the southwestemmost dedicated right-of-way Stumpstown Road (T-570), said pin marking the common point of ad'oiner line of on the hereinafter mentioned plan with the Stum stown Road rig , of thence Lots ex x 1 and #12 and along said right-of-way the following three courses and distances: South tending in five minutes three seconds East (S 52 degrees 5 minutes 03 seconds E), f a distance two hundred and no hundredths feet (200.00 feet to a fib'-two of-way line by an arc or curve to the right having atradius of o thence nce continuin ng along said ri ght- - ninehundredths feet (I58.59 feet), a chord bearing of South thirty-s degrees fifty hundred fifty-eight and f fty- seven seven seconds Last (S 36 degrees 50 minutes 57 seconds E), for aichord len th minutes fifty- thirty-five hundredths feet (83.35 feet), and for an arc distance of ei h four 8th of eighty-three hundredths (84.34 feet) to a steel pin; thence continuing along said ri ht-o - and thirty-four one one degrees thirty-six minutes fifty-one seconds East (S 21 degrees 36 mina eye South twenty- E), for a distance of one hundred fifty-two and eight hundredths feet (152,08 s 51 seconds E), feet) to a steel pin at Lot #13 on the hereinafter mentioned plan of subdivision; thence departing from Road right-of-way line and extending along Lot #13, South sixty-six degrees the Stumpstown nutes twenty-nine seconds West (S 66 degrees 34 minutes 29 seconds W), for thirty a -four distance minutes of five hundred one and ninety-three hundredths feet (501.93 feet) to a steel i on the hereinafter mentioned plan of subdivision; thence extending along Lot # ln1 at the Lot #11 following two courses and distances: North four degrees six minutes fifty-six seconds West minutes 56 seconds W), for a distance of two hundred fifty-five and sev 4 decrees 6 (255.07 feet) to a steel pin; thence continuing North thirty en hundredths feet seven seconds East -seven degrees fifty-four minutes fifty- (N 37 degrees 54 minutes 57 seconds E), for a distance of three hundred and no hundredths feet (350.00 feet) to a steel pin set on the southwesternmost fifty of-way line of the Stumpstotivn Road, said pin marking the place of BEGIN dedicated right- CONTAINING 3.3127 acres, more or less, and being designated a final plan of subdivision of Monroe meadows, prepared for KimbaLot #12 on a Inc Registered Engineers, dated November 24, 1986, and- by recorded in the Office of the Recorder of Deeds in and for Cumberland Pennsylvania, in Plan Book 53, Page 34. County, I Certify this to be recorded In Cumberland County PA If• O y O Recorder of Deeds 8K ! %?t-? ?'i 43 i 9 73 c,5 SHERIFF'S RETURN - REGULAR CASE NO: 2008-05508 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TD BANK N A VS JOHNSON BRIAN L TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon JOHNSON BRIAN L the DEFENDANT at 1446:00 HOURS, on the 19th day of September, 2008 at 300 STUMPSTOWN ROAD MECHANICSBURG, PA 17055 by handing to GARY JOHNSON FATHER a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.00 Affidavit .00 Surcharge 10.00 Iujb4 68' 91, 00 38.00 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 09/22/2008 LESAVOY BUTZ SEITZ By: De ty S er' f A.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TD BANK, N.A., successor-in-interest by merger to COMMERCE BANK, N.A., as successor-in-interest by merger to Commerce Bank/Central, N.A., Plaintiff VS. BRIAN L. JOHNSON, Defendant Case No. 2008-05508 Mortgage Foreclosure PRAECIPE FOR DEFAULT JUDGMENT Please enter judgment in foreclosure in favor of Plaintiff and against Defendant for want of an answer to Plaintiffs Complaint. Judgment should be entered for $196,587.02, as set forth below, plus interest at the rate stated in the Note attached to Plaintiffs Complaint: Amount sought in Complaint (to 8/18/08): Principal due $ 155,727.41 Interest through 8/18/08 $ 23,821.21 Attorneys' fees $ 15,000.00 Total $ 194,548.62 *per diem = $31.36 Plus interest on $155,727.41 from 8/19/08 to 10/22/08 (65 days @ $31.36) $ 2,038.40 TOTAL $ 196,587.02 PAGE 1 OF 2 X I certify that the foregoing assessment of damages is for specified amounts averred to be due in the Complaint and is calculable as a sum certain from the Complaint. X Pursuant to Pa.R.Civ.P. 237 (Notice of Praecipe for Final Judgment or Decree), I certify that a copy of this Praecipe has been mailed to each other party who has appeared in this action or to his/her attorney of record. X Pursuant to Pa.R.Civ.P. 237. 1, I certify that written notice of the intention to file this Praecipe was mailed or delivered to the party against whom judgment is to be entered and to his/her attorney of record, if any, after the default occurred and at least ten (10) days prior to the date of the filing of this Praecipe and copies of the Notices and associated Certificates of Mailing are attached. Dated: j D " 2'$ f 01 LESAVOY BUTZ & SEITZ LLC ;y No.`102( indsor Plaza 7.5-M Windsor Drive, Suite 200 Allentown, PA 18195 (610) 530-2700 Attorneys for Plaintiff NOW, -qc k , 3o , 2008, JUDGMENT IS ENTERED AS ABOVE. Pro onotary/Cl o , Civil Division BY: Deputy PAGE 2 OF 2 7` ? fi IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TD BANK, N.A., successor-in-interest by merger to COMMERCE BANK, N.A., as successor-in-interest by merger to Commerce Bank/Central, N.A., Plaintiff Vs. BRIAN L. JOHNSON, Defendant Case No. 2008-05508 Mortgage Foreclosure IMPORTANT NOTICE TO: Brian L. Johnson Date of Notice: October 10, 2008 300 Stumpstown Road Mechanicsburg, PA 17055 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford St. Carlisle, PA 17013 (800) 990-9108 LESAVrOY\BKJ7?Z & SEITZ LLC Jack M 7535 inds Dr., Suite 200 Allento , A 18195 (610) 530-2700 Attorneys for Plaintiff U J , Pa LC Uj t f.". C-D . +.L Lj - C= C`V 1 4 0 4 O U- N a i . , LESAVOY BUTZ & SEITZ ATTORNEYS AT LAW i_Lc October 10, 2008 Mr. Brian L. Johnson 300 Stumpstown Road Mechanicsburg, PA 17055 Re: TD Bank, N.A. v. Brian L. Johnson Case No. 2008-05508 (Cumberland County, PA) Dear Mr. Johnson: I enclose a notice pursuant to Pa.R.C.P. 237.1 truly yours, J JMS/srb Enclosure cc (w/enc.): Jennifer M. Gracia, A.V.P. 7535 Windsor Drive • Suite 200 • Allentown, PA 18195-1034 610.530.2700 • 610.530.2727 Fax • JSeitz@LesavoyButz.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TD BANK, N.A., successor-in-interest by merger to COMMERCE BANK, N.A., as successor-in-interest by merger to Commerce Bank/Central, N.A., Plaintiff Vs. BRIAN L. JOHNSON, Defendant Case No. 2008-05508 Mortgage Foreclosure AFFIDAVIT OF NON-MILITARY SERVICE I hereby certify that, to the best of my knowledge, information and belief, Defendant is not a member of the military of the United States of America or its allies and are not entitled to relief under the provisions of the Solders and Sailors Relief Act of 1940, 50 U.S.C. § 520. Dated: LESA)E?,Y BUTZ VEITZ LL?LC Jack M. o.3 One Win or PlaXa 7535 Windsor rive, Suite 200 Allentown, PA 18195 (610) 530-2700 Attorneys for Plaintiff Sworn and subscribed to before me this v day of 52008 Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Stella Blake, Notary Public Upper Macungie Twp., Lehigh County My Commission Expires Jan. 13, 2009 Member, Pennsylvania Association of Notaries CJ ^a C.1 f..: _.d M 7-1p rr) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TD BANK, N.A., successor-in-interest by merger to COMMERCE BANK, N.A., as successor-in-interest by merger to Commerce Bank/Central, N.A., Plaintiff VS. BRIAN L. JOHNSON, Defendant Case No. 2008-05508 Mortgage Foreclosure CERTIFICATION OF PARTIES' ADDRESSES I, Jack M. Seitz, Esquire, hereby certify as follows: 1. Plaintiff's address is: TD Bank, N.A. One Royal Road Flemington, NJ 08822 2. Defendant's last known address is: Brian L. Johnson 300 Stumpstown Road Mechanicsburg, PA 17055 Dated: 1 d - z7 -,6 '? LE?VOY/?UTZ & SEITZ LLC Sworn and subscribed to before me this C2:;' day of aX?---xe? , 2008 Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Stella Blake, Notary Public Upper Macungie Twp., Lehigh County My Commission Expires Jan. 13, 2009 Member, Pennsylvania Association of Notaries ' M. eitj , Esquire Attorney c. 37026 One Wm w Plaza 7535 Windsor Drive, Suite 200 Allentown, PA 18195 (610) 530-2700 Attorneys for Plaintiff ..q? y M• .?A? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TD BANK, N.A., successor-in-interest by merger to COMMERCE BANK, N.A., as successor-in-interest by merger to Commerce Bank/Central, N.A., Plaintiff VS. BRIAN L. JOHNSON, Defendant Case No. 2008-05508 Mortgage Foreclosure NOTICE OF FILING JUDGMENT Notice is hereby given that a judgment has been entered against you in the amount of $196,587.02 on (? .,. 30 goon , 2008. Copies of all documents filed with the Prothonotary/Clerk of Courts, Civil Division, in support of the within judgment are enclosed. Pr gonottOe of C arts, Civil Division BY: If you have any questions regarding this Notice, please contact the filing party: Jack M. Seitz, Esquire Attorney No. 37026 One Windsor Plaza 7535 Windsor Drive, Suite 200 Allentown, PA 18195 (610) 530-2700 (This Notice is given in accordance with Pa.R.Civ.P. 236)