HomeMy WebLinkAbout09-2600BROWN STONE NIMEROFF LLC
,Mary Kay Brown
Jami B. Nimeroff
P.A. ID Nos. 54327 and 71696
1818 Market St., Suite 2300
Philadelphia, Pa 19103
(267)861-5330
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PHILADELPHIA PRIVATE CAPITAL, LLC
1760 Market St., Suite 900
Philadelphia, PA 19103
Plaintiff,
Attorneys for Plaintiff
Philadelphia Private Capital, LLC
COURT OF COMMON PLEAS
FOR CUMBERLAND COUNTY
V.
W. WAYDE KELLY
101 Kelly Drive
Carlisle, PA 17013
Civil Action No. 6 - G Od Cam`,
Defendant.
NOTICE TO DEFEND
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CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
AVISO
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CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
BROWN STONE NIMEROFF LLC
Mary Kay Brown
Jami B. Nimeroff
P.A. ID Nos. 54327 and 71696
1818 Market St., Suite 2300
Philadelphia, Pa 19103
(267)861-5330
Attorneys for Plaintiff
Philadelphia Private Capital, LLC
-------------------------------- -
PHILADELPHIA PRIVATE CAPITAL, LLC
1760 Market St., Suite 900
Philadelphia, PA 19103
Plaintiff,
V.
W. WAYDE KELLY
101 Kelly Drive
Carlisle, PA 17013
Defendant.
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COMPLAINT
COURT OF COMMON PLEAS
FOR CUMBERLAND COUNTY
Civil Action No. ?O 60 c u °
Plaintiff Philadelphia Private Capital, LLC, by way of complaint against Defendant W.
Wayde Kelly ("Defendant" or "Guarantor"), says:
PARTIES
1. Plaintiff Philadelphia Private Capital, LLC is a Pennsylvania limited liability
company with an address at 1760 Market Street, Suite 900, Philadelphia, Pennsylvania 19103.
2. Defendant W. Wayde Kelly is an adult individual residing at 101 Kelly Drive,
Carlisle, Pennsylvania 17013.
3. Venue is proper under Pennsylvania Rule of Civil Procedure 1006(a)(1) in that
the defendant may be served in this county.
FACTUAL BACKGROUND
The Loan, Morteaze and Guaranty
4. On or about December 22, 1999, Keith L. Plasterer and Jamie L. Plasterer
("Borrowers") borrowed the principal sum of $575,000.00 (the "Loan") from Orrstown Bank.
5. Among other documents evidencing Borrowers' obligation to repay the Loan with
interest, Borrowers executed and delivered to Orrstown Bank a Promissory Note in the principal
amount of $575,000.00 (together with all renewals, extensions, substitutions and modifications
thereof, the "Note"), payable to the order of Orrstown Bank, with variable rate of interest
accruing on the unpaid principal balance at a rate of one percentage point above the Wall Street
Prime Index per annum. A copy of the Note is attached hereto as Exhibit A.
6. The outstanding principal balance of the Note plus any and all accrued and unpaid
interest thereon became due and owing twenty-four months from the date of execution. Thus, by
its plain terms, the Note would mature and become immediately due and payable on December
22, 2001, provided there were no other defaults ("Maturity Date").
7. The Note further provides that if judgment is entered in connection with the Note,
interest will continue to accrue on the Note after judgment at the interest rate applicable to the
Note at the time judgment is entered. Note p. 1, "Lender's Rights."
8. The Loan is secured by a mortgage dated December 22, 1999 ("Mortgage") on
certain real property located at 36 Kelly Dr., Carlisle, Pennsylvania (the "Collateral") recorded
in the Recorder of Deeds Office in and for Cumberland County at Book 1589, p. 0961 et seq,
9. For valuable consideration, on or about December 22, 1999, W. Wayde Kelly (the
"Guarantor") executed a Consumer Guaranty Agreement (the "Guaranty") guaranteeing
payment of the obligations of the Borrowers to Orrstown Bank under the Note, together with all
2
renewals, extensions, modifications, refinancings, consolidations and substitutions of the Note.
A copy of the Guaranty is attached hereto as Exhibit B.
10. The Guaranty provides that, upon default of the Borrowers, Guarantor will pay in
full all amounts due under the Note, within a reasonable time period not to exceed 120 days.
Guaranty p. 1, "Upon Borrower's Default."
11. The Guaranty provides that Orrstown Bank is entitled to recover its reasonable
attorneys' fees and legal expenses incurred in protecting or enforcing its rights under the
Guaranty. Guaranty at p.1, "Attorneys' Fees; Expenses." The Guaranty further provides that it
covers all "principal, plus all interest, all collection costs, attorneys' fees, and other legal
expenses, that may become due from the Borrower, or either or any of them, to Lender in
connection with the Note." Guaranty p.1, "Guaranty."
The Event of Default and Judgments
12. An event of default under the Note occurred in that Borrowers, among other
things, failed to make the payment required under the Note (principal balance due plus all
accrued and unpaid interest) as it became due on the Maturity Date.
13. As a result of the event of default, Orrstown Bank obtained judgments against the
Borrowers in the amount of $459,288.48, filed on June 19, 2003 in the foreclosure action
appearing in the Cumberland County Court of Common Pleas at No. 2003-2914 (the
"Judgments").
14. Thereafter, on November 7, 2003, the Borrowers and Orrstown Bank entered into
a Temporary Forbearance Agreement regarding the Loan and the default thereunder, pursuant to
which Orrstown Bank agreed to forbear from executing on the Judgments and from exercising its
rights and remedies under the Loan Documents pursuant to the terms set forth in that agreement,
3
including the payment of $150,000.00 at execution and payment thereafter in accordance with a
schedule of payments.
15. On February 19, 2004, Orrstown Bank and the Guarantor entered into Consumer
Guaranty Modification Agreement ("Guaranty Modification') pursuant to which the Guarantor
acknowledged that that Borrowers had defaulted on their obligations to Orrstown Bank under the
terms of the Loan. A true and correct copy of the Guaranty Modification is attached hereto as
Exhibit C.
16. Pursuant to the Guaranty Modification, the Guarantor and Orrstown Bank agreed
to limit the principal debt for the Guaranty to $480,000.00; provided however, there was no
modification to the costs, expenses and interest as referenced in the Guaranty.
17. In all other respects, the Guaranty Modification unconditionally ratified,
confirmed and reaffirmed in all respects the terms of the Guaranty which remained unaffected by
the Temporary Forbearance Agreement with the Borrowers. The Note, Mortgage, Guaranty and
Guaranty Modification, and all other documents executed in connection with the Loan, constitute
the "Loan Documents" for the purposes of this Complaint.
The Sale and Assignment of the Loan Documents and Judgments and the Subsequent
Forbearance A reement of June 2 2006
18. The Loan Documents, all documents executed in connection with the Loan
Documents and the Judgments were sold to Philadelphia Private Capital, LLC ("the Lender")
pursuant to the terms of a Loan Sale Agreement dated May 31, 2006.
19. In connection with the Loan Sale Agreement, Orrstown Bank assigned to the
Lender all of its rights, title and interest in and to the Loan Documents via an Assignment of
Financing Agreements dated June 2, 2006. A true and correct copy of the June 2, 2006
Assignment of Financing Agreements is attached hereto as Exhibit D.
4
20. Also in connection with the Loan Sale Agreement, Orrstown Bank assigned to the
Lender all of its rights, title and interest in and to the Judgments via an Assignment of Judgment
dated May 31, 2006 and filed on or about June 9, 2006.
21. To further secure and define the terms of the acquired repayment of the Loan,
Borrowers acknowledged and agreed to the Loan Sale Agreement and also entered into a
Forbearance Agreement with the Lender on or about June 2, 2006 ("Forbearance Agreement").
A true and correct copy of the June 2, 2006 Forbearance Agreement is attached hereto as Exhibit
E.
22. Pursuant to the terms of the Forbearance Agreement, the Borrowers
acknowledged and agreed that they had defaulted on their obligations under the Loan
Documents. Forbearance Agreement at ¶2.4.
23. Borrowers further acknowledged and agreed that the principal amount
outstanding and due under the Note as of the date of the Forbearance Agreement was $450,000
plus the sum of $19,735.00 representing fees associated with the closing. Forbearance
Agreement at ¶2.1.
24. Under the Forbearance Agreement, the Lender agreed to forbear from executing
on the Judgments and from exercising its rights and remedies under the Loan Documents until
the earlier of June 2, 2007 and the date of the occurrence of any one or more Events of
Termination as defined under that agreement (the "Forbearance Termination Date").
Forbearance Agreement at ¶4.
25. Pursuant to the Forbearance Agreement, from June 2, 2006 until the Forbearance
Termination Date, the outstanding principal amount of the Loan bears interest at a rate per
annum of fourteen (14%) percent. Forbearance Agreement at ¶3.1.1.
5
26. Furthermore, the Borrowers agreed to pay interest on the first business day of the
month, computed on a simple interest basis as such calculation is set forth in the "Payment"
section of the Note. Forbearance Agreement at ¶3.1.1.
27. The Forbearance Agreement provides that in the event Borrowers fail to pay an
installment of principal or interest when due and such failure continues for a period of (ten) days,
the Lender may charge a late charge equal to five percent (5%) of the amount of such past due
payment ("Late Charges"). Forbearance Agreement at ¶3.1.1.
28. Pursuant to the terms of the Forbearance Agreement, Borrowers agreed to pay in
full in cash on the Forbearance Termination Date the outstanding principal due and owing under
the Loan Documents, together with all interest and fees. Forbearance Agreement at ¶3.2.
29. The Forbearance Agreement further provides that, on the occurrence of the
Forbearance Termination Date, the outstanding principal balance of the Loan shall commence
bearing interest at a rate per annum equal to eighteen (18%) percent ("Default Rate Interest").
Forbearance Agreement at ¶3.1.2.
30. The Forbearance Agreement provides that upon the earlier to occur of the
Forbearance Termination Date or the sale of Collateral, Borrowers agree to pay Lender a fee
equal to $4,500.00 (the "Exit Fee")
31. The Forbearance Agreement provides a number of Events of Termination,
including the failure of the Borrowers to pay any sum which they are obligated to pay under the
Loan Documents or the Forbearance Agreement. Forbearance Agreement at 16.2.
32. Upon the occurrence of an Event of Termination, the Lender may, without notice
to Borrowers or Guarantor, exercise any and all rights and remedies pursuant to the Loan
Documents in its sole discretion. Forbearance Agreement at ¶7.1.
6
The Further Events of Default and Non-Payment
33. Borrowers again failed to make payments when due under the Loan Documents.
34. Borrowers have failed and refused to pay any and all of the sums due under the
Note and Forbearance Agreement.
35. Guarantor has failed and refused to pay any and all sums due under the Guaranty
and Guaranty Modification.
36. As of April 23, 2009, Guarantor owes the Lender under the Guaranty, the
following:
a) $450,000.00 principal balance; and
b) $52,354.11 in accrued interest (through April 23, 2009, with
interest continuing to accrue thereafter at the Per Diem Rate of
$221.92), and
c) $9,450.00 in Late Fees, and
d) $60.00 in Bank Fees (returned checks), and
e) $4,500.00 Exit Fee, and
f) Attorneys' fees and costs of suit.
The Collateral Assignment of the Loan Documents and Judgments
37. On or about June 23, 2006, the Lender entered into a Business Loan Agreement
with Penn Liberty Bank, a Pennsylvania Banking Corporation.
7
38. Pursuant to that Business Loan Agreement, and by an Assignment Agreement, the
Lender made a collateral assignment for security of the Loan Documents, along with other
documents', and the Judgments to Penn Liberty Bank.
39. Penn Liberty Bank has expressly consented to the institution of this action by the
Lender. See Acknowledgement and Consent dated April 23, 2009 and attached hereto as Exhibit
F.
40. Accordingly, the Lender is the real party in interest and has standing to bring this
action.
FIRST COUNT
Breach of Guaranty
41. The allegations contained in paragraphs 1 - 40 above are incorporated by
reference as if set forth herein.
42. Borrowers were obligated to pay the principal amount plus interest on or before
the Forbearance Termination Date.
43. Borrowers have defaulted under the Note and have failed to pay the sums due and
owing there under.
44. Pursuant to the Guaranty and Guaranty Modification, an event of default has
occurred under the Guaranty by virtue of the event of default under the Note, and the Guarantor
is liable for Borrowers' obligations under the Note.
45. Defendant Guarantor has failed to perform its obligations under the Guaranty.
46. Guarantor is indebted to Lender in the amounts set forth above plus interest, fees
and costs as they continue to accrue, without offset of any kind.
' Including but not limited to the Loan Sale Agreement, the Assignment of Financing Agreement, the
Assignment of Mortgage, Warranty of Bill of Sale and the Forbearance Agreement.
8
47. Plaintiff has been damaged as a result of Guarantor's default under the Guaranty
in the principal amount of $450,000 plus interest, accruing interest, fees and costs of collection,
including reasonable attorneys' fees.
WHEREFORE, Plaintiff, Philadelphia Private Capital, LLC, demands judgment against
W. Wayde Kelly in the amount due to Plaintiff as provided in the Note and acknowledged in the
Forbearance Agreement, together with accruing interest under the Note, Forbearance Agreement
and Guaranty at the Default Rate Interest, attorneys' fees and cost of suit and post judgment
interest at the Default Rate Interest.
BROWN STONE NIMEROFF LLC
Mary Kay Brown, Esquire (54327)
Jami B. Nimeroff, Esquire (71696)
1818 Market Street, Suite 2300
Philadelphia, PA 19103
(267) 861-5330 (T)
(267)350-9059(F)
Attorneys for Plaintiff Philadelphia Private Capital,
LLC
Dated: April 24, 2009
9
A
PROMISSORY NOTE
Borrower: EI E L pLAS7ERER (S H" '81--62-3990)
36 KELLY DR
CARLISLE, PA 17013
Lender:
ORRSTOWN BANK
King Street Executive Office
P.O. Box 250
77 East King Street
Shippensburg, PA 17257
Initial Rate: 9.500% Date of Note: December 22, 1999
Principal Amount: 5575,000.00 _
PROMISE TO PAY. I promise to pay to taRRSTOd & d11011(Doltars t5676,000.00)intoge er with I terest on the unpaidtprrincipal balandce frloom
amount of Five Hundred Seventy Five Thousan
December 22,1999, until paid In full. The Interest rate will not increase above 18A00%, nts of 56,02380 each
PAYMENT. Subject to any payment changes resulting from changes in the Index, I will pay this loan In 23 regular payme rtrf $6, are due on
and one irregular last payment estimated at 5557,612.98 i My fi?tpaym nt 2001, wtln a f 2 , 2000, ipd land aUb equent pa rest not yet paid.
the same day of each month attar' that, . I final paym that s, by applying the ratio of the
payments include principai and Interest. interest on this Note Is computed mu@i ??>?6t? outstanding pnncipai balance, mrdtlP9ad by the actusi
annual interest rate over the number of days st a year (366 during leap years), P
then to pricipal,
number of days the princ?pai batanoe is outstanding. i wlil pay tender at Lender's address shown above or at such other place as Lender may
designate in writing. Unless othe ui a d cod.or r ouiore by applicable law, payments will be applied first to accrued unpaid interest,
and any remaining amount to a y P
DEMAND FEATURE. THE LOAN IS NOT PAYABLE ONO EPA ND. T lS MORE THAN 29 DAYS PAST DUE AT NANY ,TIME DUR NAG THE
CONSECUTIVE ONE YEAR TERMS, PROVIDED THA
IMMEDIATELY PRECEDING TERM.
VARIABLE INTEREST RATE. The?Interest rate o Ind Nis not nrelcject to c??g fro ime cfiti ged s Le nc ongesi an Indepen index ex whi h
is the WALL STREET PRIME (the 9ndex'?
unavailable during the term of nder ratan,. ?eloaans bad on other rates as weil.fiTheonterest rate change Itil not occur mo a oftednt'tchaneeach day.
request. k understand that Lende y
The index poi nNy is the In per djuste ,if e ry foethe m?mum rate limits ion described below, result g in anl#initial ate of 9800`N?
tot e
percentage point over the Index, adjusted
per annum. Notwlthstanding any other provision of #his Note, the variable interest rate or rates provided for in this Note wl## be subject
following maximum rate. NOTICE: Under no circumstances will the interest rate on this Note be more than the lesser of 18.000% per annumnortthe
iicable law. Unless waivd by Lender, any increase in the interest rate will increase the amounts of my pay
maximum rate allowed by app
LR der in NT. I may pay without obli ga onl to continue to ake payments u derv thehpayment schedule. PRa her,sthey will educe the principal
Lender in writng, relieve me of my a g
balance due and may result in me making fewer payments.
LATE CHARGE. if a payment is 16 days or more late, I will be charged 6.000% of the regularly scheduled payment. romise 1 have made to
DEFAULT. I will be In default if any of the following happens: (a) I fail to make any payment when due. (b) l break any p
Lender, or I fail t comply wink a to reement or'loan have witheLender.o(c) Any representation or°statement madee or furnished to Lender by me
related to this Note, or r any other ag e
on of behalf s false or misleading in anmake ant assignment forr the benefit of crieditors, or any proceeding s} commenced eitherby metor against me
appointed for any part of my property, roe on or in which Lender hs a lien or security interest. This
under any bankruptcy or any of m laws. (ts Any Le d er, trio An of the a ens described in this default section occurs with respect to any guarantor
includes a garnishment of any of my accounts with Lender. (f} y
of this Note.
{f any default, other than a ths, It in pabe cureds(and no event of defauittwill have Qoccurred?faf a er rreceiving written notice from Lender demanding
preceding twelve (12) months, it may
cure of such default: (a) cure the defaion to be sufficientto cure the(defauleand thereaftesr contin a and complete all re sonab eiandttnecessary s erns
Lender deems fn Lendr's sole dscre
sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon daei Interestt iimmeediatttelyy du nand then tl will pay that amount. Lenderf ma yhecireaor pay sormeoneaelsertooheip collect this
this Note and ail acorued unp
Note ff t e not pay. 1 also wlil pa rem alawsufta ncluding attorneys' fees and tlegal exipe ses for bank up clyy proceedings (f cluding'effortsato modify or
legal expenses whether or not the
vacate any automats, stay a injuo all o her s mis? provided byilaw. If judgment Is entered in connection with thisrNote, iinterestwll continnue to acc ure
pay any oourt cuss, in additfott to a icable to this Note at the time judgment s entered. This Note has been delivered to Lender and
on this Note after judgment C the Interest lane apps'
accepted by Leader rlatnd Count tthh Com fmonweaith of Pennsyl aniaaThis Note shall be ogoverned by and oonstru dm#n accordance iwlth the
the caurls of Cumbers tY
laws of the Commonwealth of Pennsylvania.
deliver, ledge, and transfer to Lender alt my right,
RIGHT OF SETOFF. I grant to Lender a contractual security interest in, and hereby assign, convey, P
title and interest in and to, nd a accounts I may open`in t e future excludingnhoweverr all IRA and Keogh?accounls, nid all trus atccounts o which t e
grant with someone else and a licable law, to charge or setoff all sums owing
grant of a security interest wou{d be prohibited by law. i authorize Lender, to the extent permitted by app
on this Note against any and all such accounts.
COLLATERAL. This Note is monw ath?of Pen soylvania, all therterms arnd condit oas of whichh are hereby in corporaed nd madeia pa tot thisis No en
CUMBERLAND County, Comm
PROMISSORY NOTE Page 2
? 2-22-1988 (Continued)
Loan No
Lender
Lender's ure. The
ons
inclusion
not GENERAL PROVISIONS. This Note has a demand on. Its demand. Let nder may delay or forgo enforcinguanyr of Its ghtsgorh emfedies undesha r phis Notedwitthhout losing
waW nt,
right declare payment of this Note law,
them. . 1 and any other person who signs, c as ms o his Note, dtunless otherwise exP essly tated In wriflngntn pa ty whoa s nsethis
protest and notice of dishonor. Upon any change nge In the to that Lender may renew
Note, whether as maker, guarantor, accommodation maker or endorser, shall be e?ara tfrom fi
orw tcl o?i?at?? oh l?p ? ?t?tO realize upon or perfect
or extend (repeatedly and for any length of time) this loan, or release any party gu
Lender's security interest in the collateral. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other
than the party with whom the modification is made. The obligations under this Note are joint and several. This means that the words "I", "me", and
"my" mean each and all of the persons signing below.
PRIOR TO SIGNING THIS NOTE, 1, AND EACH OF US, READ AND UNDERSTOOD ALL THE PROVISIONa DOFETHISONO?; AGRCLUDING TTHE HE
TERM SS O TOTE AND ACKNOWLEDGE RECEIPT OFTICE COOMPLETEDGCO OSET F TH EE NOTE. OW. 1,
T
THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED.
BORROWER:
X
MIE L PLASTERER
_KMTH L PLASTERER
NOTICE TO COSIGNER
You are being asked to guarantee this debt. Think carefully before you do. If the borrower doesn't pay the debt, you will have to. Be sure
you can afford to pay If you have to, and that you want to accept this responsibility.
You may have to pay up to the full amount of the debt If the borrower does not pay. You may also have to pay late fees or collection costs,
.which increase this amount. can
me co
llec The lender can collect ab this debt debt from he you without fit borrower, such es s ito collect ng you, garnthe ishing yyoourw ages etc• Ifftthis debttiisteverriin defau t, th 1 famethods st may
against you that can against
become a part of YOUR credit record.
This notice is not the contract that makes you liable for the debt.
Inc.
?B
CONSUMER GUARANTY
Guarantor: W. WAYDE KELLY
101 KELLY DR
..• Ana t 0A 77813
Lender:
ORRSTOWN BANK
King Street Executive Office
P.O. Box 250
77 East King Street 17257
Shlppensburg,
, including without limitation the principal Note amount of Five Hun re
AMOUNT OF GUARANTY. This Is a Guaranty of the Note
Thousand & 001100 Dollars ($575,000.00). payment so
" has loaned loan to Borrower is enough consideration for my giving of this
GUARANTOR'S REPRESENTATIONS. 1 know the Lender, from time to time, money to Borrower. I am making this guaranty that Lender will loan money to Borrower. i agree that Leader's willingness t make the
ds
guaranty. I will receive consideration, in the form of procee, from the Borrower used in this loan.
DEFINITIONS. The following words shall have the following meanings
The word "Borrower" means KEITH L PLASTERER and JAMIE L PLASTERER, together with every other person or entity signing the
Borrower.
Note.
ord "Guaranty' means the Guaranty between Lender and me dated December 22,1999. arson or
Guaranty. The w
Lender. The word "Lender" means ORRSTOWN BANK, Its successors or assigns. The words "successors or assigns" mean a dated
.00
company that acquires any Interest In the Note. Borrower: in the principal amount of $575,?
solidations
Note. The word "Note" means the promissory nose or credit agreement executed by
December 22, 1999, together with all renewals of, extensions of, modifications of, refinancings of, con of, and substitutions for the note
due frLender. Borrower, or
or credit agreement.
anon Borrower's may become
gal later
Note
GUARANTY. 1 guarantee payment to tender, I legal tendeomeys moounand other ts due now or
covers the principal, plus all interest, all collects
either or any of them, to Lender in connection with the Note.
hin r reasonable
BORROWER'S DEFAULT. Upon default of the Borrower, the Guarantor Lender to will: pay (a In ) full all Notice of amounts Default. due under Lender Notewill, give the Guarantor notice oft the
UPON
not to assign Note,
default by Borrowers. (b) Direct Guarantee. Lender will rpayment from Guarantor to Lender of all amounts due under
exceed 120 days. (c) Assignment of Note. Upon ay
Mortgage, Agreements and all other documents related to the Note to Guarantor.
NATURE OF GUARANTY. Lender does ective not have to accept this Guaranty to make it f efienry haviel been paid in Pullen I sign below and will continue in
effect until all amounts 1 have guaranteed or otherwise have agreed to pay under this
GUARANTOR'S FINANCIAL STATEMENTS. i hereby represent and promise to Lender that (a) the most recent financial statements I have
and correct in all respects, (b) they fairly present my financial condition as of the date shown on the statements, and (c no material
Lender are true
eouthat date.
adverse change has occurred in my financial condition since
s provisions are a part of this Guaranty:
except MISCELLANEOUS PROVISIONS. The following miscella Is my entire agreement with Lender. This. Guaranty may that
Amendments and interpretation. (a) What is written in this Guaranty not be changed
may sue any
or entity signing this Guaranty, and that, if Lender brings in any it, Lend r Th
the wards "I " "me," and "my" mean each and every person This
given t b y anther written agreement between us. (b) rovision of this are
one or more of us. I also understand Lender need not sue Borrower first, and that Borrower nee not e names
not to
'be G are for convenience e ofpo s only. TheyW ih Lender used to
courtnterpre or define the provisions my agreements . to paragraphs or sections in the Guaranty will not be valid or enforced.
this Guaranty. 1 agree that this Guaranty is the best erodenc be found valid b or invalid or ll not
uarianty a en it ahprovision of th sthis Guarranty may
the rest Guaranty Is net valid lid or should not ?estst of enforced, thee p ovis onsoofth s Gitself
Therefore, a court will enforce
unenforceable. Lender in the Commonwealth of Pennine lvvanmiia.. it tthe re Is a
Applicable Law. This Guaranty has been delivered to Lender and accepted by the lawsuit, f agree upon Lender's request to submit t construed in t
cordat a wfthrts laws at the a ?Co Commonwealth of Pennsylvania.
Pennsylvania. This Guaranty shall be governed by and f ,whether or not there is a lawsuit, above Attorneys' Fees; Expenses. In addition to to the the amount of ship GroC?dings {incoi ding e#E If orts to Lender modify pays or vacate money te to any automatic someone ?iic else to stay or help inj collet on
unction),
my Guaranty, l will pay that amount as well. foThis r banouptcy prose Lender's legal expenses and attorneys'
rovided by aw. pay
ition to
including attorneys' fees and legal expenses
from
Len appeals, and any anticipated post-judgment collection services. ri U i?T this Gt?aran yuwhetherifromdLender tot mn?ed o 9 n ght couer? or uwhen
Notices. 1 understand that all notices when required to be give
to whom the notice is to be given at the address shown
until actually delivered or addressed when to the party deposited with a nationally recog
prepaid, formal written notice to the other person or persons,
States not malt, 1, first effective class, postage
may will
abovegiven. In writing.
in Any writing- the person Notices
d change its address for notices under this Guaranty re ce to all of us unless the law 's ad
ress.
permitted that the purpose , the notice is to change t an onne ofdus and t of wilt btetconsideredtas givif? b notice ce o aIf there is ll of u to tr
person signing ess Lender
specifying this Guaranty, Lender may give notice to any
r responsibility to jell the others of the notice from Len r.
requires notcet to ail ilofsigners.
?y current address.
informed at a
ISSN: 1-•52-3990)
Borrower: KEIME L PLASTERER 8
3e KELLY OR
CARLISLE, PA 17013
1-,_22-1999
Loan No
NOTICE TO
JARANTY, INCLUDING THE T •n i01 GUARANTY iS ?EC1 IVE UPON MY -THE 1 READ AND UNDERSTOOD ALL III NiPDERSTAaNfD THA IS IS SET FORTH N THE SECTION TITLED
pRIOR TO SIGNING THIS GUARANTY, IN ADDITION,
THIS GUARANTY IS DATED DECEMBER
COSIGNER SET FORTH BEl'OW IN THIS DOCUMENT OF THIS GUARANTY'
AGREEMENT FORTH EI AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED AS
SIGNING THIS •• AGREE TO AU. THE TERMS AND CONDITIONS
NATURE OF GUARANTY . I
22,1999-
THIS GUARANTY HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED.
GUARANTOR:
yug''150% 1,
X W. AYD ELLY
NOTICE TO COSIGNER It the debt, You will have to. Be sure you
are being asked to guarantee this debt. Think carefully before You do. If Borrower doesn pay
want to accept this responsibilltY• late fees or
can afford to pay collection co" which
You if you have to, and that you You may also have to pay
act MY
You may have to pay up to the flat amount of the debt If Borrower does no the increase this amount. from you Without first trying to collect from Borrower. The coed thi can debt a ever tin default, that method'
The creditor can Borrower, such as suing You, garnishing your wages eto. if t is
coiled this deb!
against you that can be used against
edit record.
CONSUMER GUARANTY
(Continued)
Page 2
become a part of Y c
This notice is not the contract that makes you liable for the debt.
ices, (0)1999 CFI Proserv?nc. All r
_ . T se nit _ Vsr.
C
CONSUMER GUARANTY M-0M11 ,a iv • jq V4
This Consumer Guaranty Modification Agreement ("Agreement") is made this
.
2004 by and between W. wayde Kelly ("Kelly") and Orrstown Bank ("Bank")•
day of February,
BACKGROUND
On or about December 22, 1999, Kelly executed and delivered to Bank a certain
1.
•
er Guaranty («Guaraty") a true and correct copy of ?'hch is attached. hereto as Fxhibit
Consumer
"A" and is incorporated.
2. The Guaranty related to a loan being made by Bank to Keith L. Plasterer and
Jamie L. Plasterer ("Plasterers")-
on their obligations to the Bank under the terms of
3 The plasterers have defaulted
the loan.
4. Plasterers and the Bank have entered into a Temporary Forbearance Agreement
the loan and the default thereunder. Under the terms of that agreement, Plasterers are
regarding th
to ay to Bank the sum of $150,000.00 at the execution of the agreement and make payment
p
thereafter m accordance with the schedule of payments set forth therein.
NOW, THEREFORE, with the foregoing Background deemed incorporated hereinafter
by this reference and hereby made a part hereof, the parties hereto, intending to be legally bound
.
hereby, further covenant and agree as follows.
Kelly does hereby unconditionally ratify and confirm and reaffirm in all respects
1
condition, all of the terms, covenants and conditions set forth in the Guaranty and
and without
that he shall remain liable to the Bank in accordance with the respective terms, covenants
agrees
the Guaranty and that this ratification and reaffirmation shall not be effected by
and conditions of th
the Temporary Forbearance Agreement entered into by Plasterers and Bank•
2 Bank agrees to forbear from exercising its rights and remedies under the Guaranty,
is entitled to exercise as a result of the occurrence of defaults by Plasterers, during
which Bank
period commencing with the execution of this Agreement and ending on the earlier of
the p
of a default by Plasterers under the terms of the Temporary
, 2005 or the occurrence
December 31,
Forbearance Agreement.
This Agreement shall not be effective in the event that Plasterers do not make the
3.
payment required at the execution of the Temporary Forbearance Agreement as set forth above.
4 Bank and Kelly agree that the limit for the principal debt for the Guaranty shall
interest as further referenced in the
hereby be revised to be $480,000.00. Costs, expens
es and Guaranty are not modified by this Agreement.
5. Kelly has the power, authority and capacity to enter into and perform this
Agreement and all related instruments, agreement and documents.
6. The substantive laws of the Commonwealth of Pennsylvania shall govern the
construction of this Agreement and the rights and remedies of the parties hereto.
d in any number of counterparts, each of which
, This Agreement may be execute
7eemed to be an original, but all of which shall constituted but one and the same
shall be d
document.
v
8. This Agreement and all of the instruments, agreements and documents executed
n the Plasterer loan shall be construed as integrated and complementary of each
by Kelly regards g
d as au enting and not restricting Bank's rights, remedies, benefits and security.
other, an?
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto
have executed this Consumer Guaranty Modification Agreement on the dates below indicated.
SS:'/
W. de Kelly
Date: 4/' / D
Orrstown
By'
Titl . V•c?. '?te-S c? ^?r"?^?
Date:
dab.dir/orrstownbank/plastererlwaydekelly.agr
CONSUMER GUARANTY .
Guarantor: W. WAYDE KELLY
101 KELLY DR
CARLISLE, PA 17013
AMOUNT OF GUARANTY. This Is a Guarantyrof the Note, including without limitation the principal Note amount of Five Hundred Seventy Five
Thousand & 001100 Dollars ($575,000.00).
rrten so
a
consideration for my giving Pay this
GUARANTOR'S REPRESENTATIONS. I 1 owh?a L?aead? from rune gnes?g ioh ? loan ma a theloan Borrower. I am making
that Lender will loan money to Borrower. agree guaranty. I will receive consideration, In the form of proceeds, from the Borrower from this loan.
DEFINITIONS. The following words shall have the following meanings when used in this Guaranty:
Borrower. The word "Borrower" means KEITH L PLASTERER and JAMIE L PLASTERER, together with every other person or entity signing the
Note.
Guaranty. The word "Guaranty" means this Guaranty between Lender and me dated December 22, 1999.
Lender. The word "Lender" means ORRSTOWN BANK, Its successors or assigns.. The words "successors or assigns" mean any person or
company that acquires any interest In the Note. amount
00
dat Note. The or 2 199g together with all renewals of note or extensions of, modifications of,refinanc ngs of , consolliidations of, and substtt? n? foor ss f the note
December 2 ogaher
or credit agreement.
GUARANTY. principal, plus at interest, alle collection In leal costs, tattorneys' fees, and other legalrexlater on Brrower's Note to Lender. M penses, that may become due f om Bor o era, or
covers the prip > p
either or any of them, to Lender in connection with the Note.
UPON BORROWER'S DEFAULT. Upon default of the Borrower, the Lender will: (a) Notice of Default. Lender will give the Guarantor notice of the unts
able time
within
Note,
under
period default by Borrowers. (b) Direct Guarantee. Lender require will from Guarantorito Lis dear ofall amo is due under Note, Lendernwill assign Note,
not to exceed 120 days. (c) Assignment of Note. Upon payment
hlo-ugage, Agreements and -all other documents related to the Note to Guarantor. . It NATURE OF GUARANTY. Lender does not have to accept this Guaranty to make It Geffective uaranty haviel been ecti nwhen i sign below and will continue in
effect until all amounts t have guaranteed or otherwise have agreed pay that
statements
financial
recen
date shown ont the s atemen s, and i(c) no mater al
given GUARANTOR'S FINANCIAL Sil respects, S.) the (fairlrepresent nt my financrsal conditionras of thethe
Lender are true and nd correct in all reslonaial condition since that date.
adverse change has occurred in my
MISCELLANEOUS PROVISIONS. The following misceilaneous provisions are a part of this Guaranry: entire
. This
ob igationsrare joint and several Tnot his means changhat
Guaranty Amendments and Interpretation. t tw? sus nib) if In this more than one person s gns beo w, ourwith
except by another written ten agreem agreemen The names
the words "1;' "me"and "my" mean each and.every person or entity signing the Guaranty, and that, if Lender brings a lawsuit, Lender may sus an nee
not
lawsuit one or more of us. I also this Guaranty are for convenience purposes only. Borrow hey are otto be usedrto interpret or de ine(the provisions
given to paragraphs or sections in provision of this
of this Guaranty. (d) t agree that this Guaranty Is the best evidence of my agreements with Lender. If a court finds that any p nforced
lid
ill
Guaranty
the rest
not
, that
or enforced Guaranty is net valid or should not be of the provisionscof thissGuaralnty even It ahprovision of thsl Gua anty may betfoundato be invalid or
Therefore, a court will enforce the re
unenforceable. Lend
n the
. If There Applicable Law. uThis Guaranty has been pon Lender's delivered to Lender
to the jur sdiction of the courts of CumberlandalCounty, the ICommonw althsof
lawsuit, 1 agree upon Lender ance
Ivanta. Pennsylvania. This Guaranty shat be governed by and construed In Sg` fordth abo? EitA Lendaws of
paysh money to someone else to h81P collect on
whether or
Attorneys' Fees Expenses. In addition the amount this des Guaranty
or in unction), nder's
not my Guaranty, f will pay that amount es.well tl. This amount nt inclu dings (includin xefforteto^modily oryvaca e,any automatic say e is ? lawsuit,
sums
other
including attorneys' fees and legal expenses for bankruptcy
serve p o pay any co
n addition
rovid appeals, and any anticipated post-judgment collection on services. I twrlldersthis Guaragntyuwhetherlfrom Lender tolme or f om me to enderemust be
Notices. I understand that all notices when required to be glen roan ni the address shown rec
ized given in writing. Notices will not be effective until actually delivered or when deposited whom the n tree iso onbe given courier or when
to itten notice
deposited in the United States mail, first class, postage prepaid, addressed to the party
persons spec Any parson may change tice address
to change the under address. I to the a ernt permitted bytlaw, Ifhthe ee is more than one
t.?;?,spociin.si ithat the purpose of of the no give notice to any one of us and that will be considered as giving notice to all of us unless the taw
a.ras n0h1i:e this Guaranty, Lender may to all signers- it will be our responsibility ?o fell the others of the notice from Lender. For this purpose, I agree to keep Lender
a srr,2s at my current address. EXHIBIT "All
Borrower: KEITH L PLASTERER (SSN: 18142-3990) Lender: ORRSTOWN BANK
JAMIE L PLASTERER (SSN:) King Street Executive Office
36 KELLY DR P.O. Box 250
77 East King Street
CARLISLE, PA 17013 S
Shippensburp, PA 17257
I?-'12-19gg CONSUMER GUARANTY Page
N (Continued)
Login o
NUPON 1,
SET THIS GUARANTY, SDOCUMENT. AND UNIN ADDITION, I UNDRERSTAND YHA TTHS GUARANTY IS EFFECTIVE
PRIOR TO SIGNING
TITU
COSIGNER SET FORTH BELOW AND THIS i L TERMINATED
THIS GUARANTY IN THE IS DATED ECHMSE
SIGNING THIS AGREEMENT NT AGR E TO ALL GUARANTY I TTS ANWILL CONTUE UN D CONDITIONS OF. GUARANTYAS SET
"MATURE OF GUARANTY-. I AG
22,1999.
THIS GUARANTY HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED.
GUARANTOR: ``
w. WAYDFL7=1-7
esponyou . It Borrower doesn't pay the debt, you will have to. Be sure yo
NOTICE TO COSIGNER carefull You are being asked to guarantee this deb. want to accepi this before
can afford to pay If you have to, and that you
You may have to pay late tees or collection costs, whic
up to the full amount of the debt if Borrower does not pay. You may also have-to pay
some
the
can
increase this amount. rower
method The creditor can collect this debt from oryou without first r such as suing you, garnishing you wag", etcieIttthis debt ins ever I default, that act ma
against you that can be cused redNgrocord$o?ower,
become a part of YOUR This notice Is not the contract that makes you Ilabie for the debt.
___ _. , e__ c ont x T_M. Oil.. Ver. 3.26b (c)1999 CFi ProServices, inc. Ali rights reserved. IPA-E10 E3.28 F3.28 133.28a 089230L.LNi
:1)
ASSIGNMENT OF FINANCING AGREEMENTS
ECEIVED, ORRSTO" BANK, a Pennsylvania banking corporation
sy
FOR VALUE R lvania CAPITAL ssi or"), hereby assigns to PHILADELPHIA address of PRIVATE 60 Mark t St Suite 900,
(A " with an limited liability company ("Assignee ),
is PA 19106, and its successors and assigns, all of Assignor's rights, title and interest
Philadelphia
in and to the following described document: dated made b Keith L. Plasterer and Jamie L. Plasterrec
office of the
Mortgage by orded December
on certain real property located at 36 Kelly Dr.,
Book 15895p? 961, et seg.;
Recorder of Deeds fox Cumberland County other obligations described in and
the promissory note and/or the
TOGETHER with es and
orta e, and all money due and to grow due then, s ors egal interest. 'representatives HAVE
secured by said m g g
AND TO HOLD the same unto the said Assignee and to the succe .
assigns of the Assignee forever.
[Signatures appear on following page)
IN WITNESS WHEREOF, Assignor bri used this instrument
delivered by its duly authorized officers this o 2006.
. Mt
By:
ORRSTO" BANK
/W.A4
Name:
Title t,
to be executed and
LJ
'?%
4-C.Lb
jAssignment of Financing Agreements - Signature Page]
COMMONWEALTH OF PENNSYLVANIA SS
COUNTY OF ?---- the undersigned
2006, before me, a Notary Public,
On this day of 61 Wbo acknowledged him to be an officer of
officer, personally appeared instrument, and that taibeing
cribed in th foregoing se therein contained by
Orrstown Bank, the insti ent
authorized to do so, -,,cut d the foregoing 'nstrurn for the purpose
of said institution-
CLb
signing his name thereto as
han awn otan seal, the ay and year aforesaid_ .
WITNESS my -
Not Public
My Commission Expires:
GOMMONWEALSi N PENNSYLVANIA seal
Jenrnter S. Lindsay Notary PubNo
C OS% 8oro, Cuntertand County
My Coml bqW Expires Nov. 29, 2007
Member. Pennsylvania Association Of Notaries
iiAAggg?g of Financing Agreements - Acknowledgement Page
#7667$5 v1;PHLl C'?EN§A',QW1
E
FORBEARANCE AGREEMENT
This Forbearance Agreement ("Agreement") is made as of June of 36 Kelley an between EITII L.
pLASTERER and JAbHE L. PLASTERER, having a mailing address eDrive,
Pennsylvania 17013 (individually and collectively, jointly and severally, the "Borrower") and
PMLADELPE IA PRIVATE CAPITAL, LLC, a Pennsylvania limited liability company with a principal
place of business of 1760 Market Street, Suite 900, Philadelphia, Pennsylvania 19103 ("Lender"), as
successor in interest to Orrstown Bank, a Pennsylvania banking corporation with a principal place of business
of 77 East Kings Street, Shippensburg, Pennsylvania 17257 (the "Original Lender").
1. SECTION 1-- DEFINITIONS
1.1. "AMaisition Transaction" shall have the meaning set forth in Section 2.5 hereof.
1.2. „Assignment of Financing Agreements" shall mean that certain document dated as of the
date hereof by and between Orrstown Bank, as assignor, and Philadelphia Private Capital, LLC, as
assignee.
1.3. "Ass?anmeat of Judgment" shall mean that certain document dazed as of the date hereof by
and between Orrstown Bank, as assignor, and Philadelphia Private Capital, LLC, as assignee.
1.4. "Collateral" has the meaning set forth in Section 2.2 hereof
"Event of Termination" means each and every event specified in Section 6 of this
Agreement or in any other section herein.
Events of earlier ur of (a) June 2, 2007; and (b)
1.6. "Forbearance Termination Date7l means the
the date of the occurrence of any one or more
1.7. "Guarantor" means W. Wayde Kelly, together with his heirs, successors and/or assigns.
1.8, "Guaranty Agreement" means any guaranty or surety agreement heretofore, now or
. hereafter executed by Guarantor.
1.9. "Judgment" has the meaning set forth in Section 2.5 hereof.
the
1.10. "Loan" means all extensions r Original Lender, the Borrower underdthe Loan
Original Lender, or by any affiliate of the Documents.
1.11. "Loan Documents" mean the Mortgage, the Note and the Guaranty Agreement or any
other document heretofore, now or hereafter executed by Borrower and/or Guarantor to Original
Lender, together with all modifications, extensions and/or renewals thereof.
1.12. "Minimum Interest Payment Obligation" has the meaning set forth in Section 3.1.1
hereof.
"Mo " means that certain Mortgage from Borrower to original Lender dated
1.13. rt e
December 22, 1999 and recorded December 30, 1999 with the Cumberland County Recorder o
Deeds Office in Book 1589, Page 0961.
1.14. "Note" means that certain Promissory Note dated r 22, 1999 made by Borrower in
favor of Original Lender in the original principal amount of $575,000.00.
1.15. "Ob ' ations" mean all indebtedness, obligations
Lender} of every kind Borrowepho and
Guarantor to Lender (as successor in interest to Original and n,
direct or indirect, secured or unsecured, joint or. several, absolute or contingent, due or to become
due, including any overdrafts whether for paymenregardless rperformance, now existing or of how same arise or by what
arising, whether presently contemplated or not,
instrument, agreement or book account they may be evidenced, or whether evidenced by any
instrument, agreement or book account, including, but not limited this A catiment, the renewalNote,
the Mortgage, the Judgment, all loans (including any loan by modif, or ing any
ction, extension), all indebtedness, all undertakings to Borrower to of ers which Lenderamay have
,
indebtedness, liabilities or obligations owing from
obtained by purchase, negotiations discount or not uch attornY slla z?gularly taxes, fees,
charges, expenses and attorney's fee, (whether
employee of Lender, any parent corporation or any subsidiary or affiliate thereof, whether now
existing or hereafter created), chargeable to Be irower in or incurred connection by Lender under this
delivered herewith.
Agreement, or any other document or instrument
1.16. 16. "Obl'gors" shall mean collectively, the Borrower and Guarantor, each individually, an
--
"Obligor"
individual, corporation, association, partnership, trust, unincorporated
1.17. "Person" means any overnment or any governmental agency or
association, business, or other legal entity, and any g
political subdivision thereof.
1.18. "Security Interest" means any transaction which creates or provides for a lien by
agreement.
1.19. "S„ tate" means the Commonwealth of Pennsylvania.
2. SECTION 2 -- BACKGROUND Borrower and
2.1. Under -the terms and provisions of the Loan Original to that certain
Borrower borrowed from Original Lender
Promissory Note dated as of December Z2, 1999 in the original principal amount of $575,000.00
(the "Note"). Borrower and Lender agree e dand ate hereof?isg$45 ?OOO.OOpplusithe sumuof
outstanding and due under the Note as l be due
the shalNote and the
with $19,735.00 which is due pursuant to Section 3' amount sue and timelyundepaid
interest thereon as part of the unpaid principal
Judgment..
(e ndeCo# Security Interest in the
2.2. To secure repayment of the Loan, Borrower granted
Pennsylvania Original
real property located at 36 Kelley Drive, Carlisle,
2.3. Simultaneous herewith, Lender has acquired Original Lender's titlew, and interest in and to
the Wawa ty Bill
the Loa pursuant to the Assignment of Financing A 8ieements
of Sale (collectively, the "Acquisition of the Loan").
2.4. Borrower acknowledges and agrees that Borrower has defaulted on its obligations ande the Loan due
Documents by, among other things, Borrower's failure to make paym when
(collectively, the "Events of Default"). 2.5.. As a result of those Events of Default, the Original Lender exercised its r g et a he edicts fund a
the Loan Documents and commenced a foreclosure oft 2003 Mortgage. by the Court of Common Pleas of
judgment was filed against the Property . on June 19,
Cumberland County, Pennsylvania, Docket No. 2003-2914, in the amount of $459,288.48 to the
iginal
benefit of Original Lender (the "Judgment"). Simultaneous u herewith, Lender has
gnment of J figment
Lender's rights, title and interest in and to the Judgment pursuant
(the "Acquisition of the Judgment" together with the Acquisition of the Loan, the "Acquisition
Transaction").
any
2.6. Borrower acknowledges and agrees the otherwise extend1ncredit?torBonor the rrower ender. t e Loan
obligation to make additional loans or
Documents or otherwise. Borrower has now rremedies equested that the the Lender pocumentfrs as a resultiof the the the Judgment or from executing its rights a
Events of Default. The Borrower acknowledges that such request is in the best interests of
Borrower.
2.7. In response to Borrower's request, the Lender is willing to forebear from executing on the Loan
that Judgment and from exercising its rights and remeeset forth. in th s AgreemDocuments
entpand,dfurt er
such forbearance is on the terms and conditions
provided, that except as expressly waived in this Agreement, such forbearance does not
expressly waive or otherwise prejudice the rights of Lender.
3. SECTION 3 -- REPAYMENT
3.1. Interest.
3.1-1. Notwithstanding anything to the contrary set forth in the Loa Documents, from and after
the date hereof through and including the Forbearance Terminate Date, the outstanding
principal amount of the Loa shall bear interest at a rate per annum equal to the fourteen
rest
hereby acknowledges is less than the maximum
percent (14.0%) which the Borrower able monthl 'nte
on the
rate permitted under the Loan Documents. Interest shall be due and pay y>
first business day of each month, and shall be computed on a simple interest basis it such
calculation is set forth in the "Payment" section of the Note provided thaas
equivalent of three (3)
this Agreement, the Borrower agrees to pay to Lender no less than the months of interest at the interest rate set forth herein (the "Minimum Interest payment
Obligation"). Moreover, if any Obligor fails to pay any installment of principal or interest
when due and such failure continues for a period of ten (10) days after such payment
at its option, impose a delinquency or "late" charge equal to five
becomes due, Lender may,
notwithstanding the date
percent (5%) of the amount of such past due payment on which
such payment is actually paid in full, and the amount thereof shall be secured by the
Lender's Security Interests in the Collateral. Any such delinquency charges shall be in
addition to any other amounts umedhereunder
t be liquidated damages because f th diffficu ty in
interest or penalty, but shall be d
provide und computing the actual amount of damages in advance.
not affect
of such cure rpenod) shald for
the Loan Documents (without implying the existence
Lender's right to impose the delinquency charges specified above for the period prior to
expiration of the cure period for such default, as applicable.
sions of the Loan Documents to the contrary, upon the occurrence
3.1.2. Notwithstanding any provi Loan
of the Forbearance Termination Date the outstandi inapon Date, at a rate. per annum equal
bear interest, commencing on the Forbearance to eighteen (18%) percent, but not to exceed the maximum rate of interest permitted by
applicable law.
3.2. Prlnci29 Renavment. Without any prejudice or impairment whatsoever to any of the Lender's
rights and remedies contained in the Loan Documents, Borrower covenants and agrees with the
Lender as follows:
3.2.1. Notwithstanding anything to the contrary set forth in any of the Loan Documents, Borrower
agrees to pay in full in cash on the Forbearance Termination Date the outstanding principal
amount of the indebtedness due anthe Lender under the Loan Documents,
to the Minirrtum Interest Payment
together with all interest thereon (including but not l fees
ncluding Obligation, to the extent not already satisfied by Borrower)
any expenseslof the Lender incurred in
limited to the fees set forth in Section 3 . 4 erefl
connection therewith.
3.3. A ment to Sell Real Estate Collateral.
3.3.1. So long as the Forbearan ce Termination Date has not occurred, Borrower or Guarantor t?m
request that the Lender release its sum1?'Rinterest in the Collateral elease Request shall be (given 1 to Lender not less
be sold by Borrower, provided that such
than ten (10) days nor more than thirty (30) days, prior to the proposed sale date. Any
request for such a release shall be accompanied by a written statement from Borrower,
describing in reasonable detail 0) the date such a l ittenbclosing staatement,i)outl ning the
price of the Collateral to be sold and (iii) days prior to the
disposition of the proceeds of the sale, to be delivered at least five (s) approved the Release
closing. No sae of Collateral is permitted until the Lender has ranted or denied and shall be in the Lender's sole
Request (which approval may be g
discretion).
3.3.2. With respect to the sale of the Collateralhe sold Lender 100% date all hereof seeds from such sale.
3.3.1 above, the Borrower shall deliver to t
3.3.3.. Borrower shall provide a fully exa dthalo?idet such other t tle documents Lender
immediately upon receipt of same Prov
records relating to the Collateral and the sae thereof as the Lender deems necessary and
appropriate.
3.3.4. Notwithstanding anything to the contrary contained herein, upon the sale of the Collateral
mg
al,
and as a condition of the release of and ownri interest
under? including but nothl ? ted torall
Borrower shall pay all amounts due g here
fees; all costs and expenses incurred by Lender in connection with this Agreement or in
connection with the Lenders enforcement of its rights hereunder, under the Loan
Documents or under the Judgment and any unpaid amounts with respect to the Minimum
Interest Payment Obligation.
3.4. Fees and Ciosina Coats. sum Of
4.1. Within ten (10) days following the date hereof, Borrow sum?l $225.00 forderecording fees,
$19,735.00 to be applied to the payment of the following
$10.00 for search fees, $6,000 for Lender's legal fees and $13,500 for the Lender's closing
fee.
the earlier to occur of (i) the Forbearance Terminate Date or (ii) the sale of the
3 4 2 Upon Lender a fee equal to $4,500.
Collateral, Borrower agrees to pay
4. SECTION 4 - REPRESENTATIONS AND WARRANTIES OF LENDER
Lender
Forbearance Obli ations. Subject to the satisfaction of the erbearanc Te?minatioset n Date herein,
from and after the date hereof and up to but not including the Judgment or exercise or enforce
will stay the pending execution er or he Guarantor to which Lender would be entitled under
its rights or remedies against Borrow
the terms of the Loan Documents by reason of the occurrence r se of h to enforce any sulch Tight or
that such forbearance shall not act as a waiver of Le g
Date contained herein shall be
remedy after the Forbearance Termination Date. Furthermore, nothing
construed as requiring Lender to extend the Forbearance Termination
5. SECTION 5 - REPRESENTATIONS AND WARRANTIES OF OBLIGORS
of Existin A regiments. All of Borrower's obligations, indebtedness l?ad t1he1Jud1gment,
5.1. Ratification or otherwise' arising under the Loan Docu
the Lender as evidenced by a are, by Borrower's execution of this Agreement, ratified and
except as set forth in this Agreem nt,
confirmed in all respects by Borrower. Borrower acknowledges DDocuments are join and several-
indebtedness and liabilities to the Lender under
addition, by Borrower's execution of this Agreement ?Bor o'" or `is o ptstresents anding ndw arranttt tt° t n
counterclaim, right of set-off or defense of any kind Interests securing ges
that
the obligations, indebtedness and liabilities. Borrower tt ? val dllieden on the Collateral and that no Obligor
the Borrower's obligations to the Lend
shall take any action to impair or invalidate the Lender's Security Interest in the Collateral. and
res 5.2. Re resentations and Warranties. All of the representationsa hereof ntti if madpe oti and asadetl e n of
Borrower in the Loan Documents are true of sucorrect ch representations and warranties related by their
date hereof, except to the extent that any P
terms to a prior date.
5.3. Continued Com_ Hance. Borrower shall comply and continue to comply with all of the terms,
covenants and provisions contained in the Loan Documents, tterms he a fob hems' covenants and
provisions are expressly modified by this Agreement upon
t as otherwise disclosed on Schedule 1 attached hereto, Borrower represents
5.4. No LriaeOM- Excep contingency, 1111gataon, or k
and warrants to the Lender that there is no claim, loss, whether or not pending, threatened, or imminent ul against
result in a
covered byl insurance or affecting it
the possibility of any judgment or liab111ty not y
material adverse change in the condition of the Borrower or the Collateral (financial or
otherwise).
exhibit
5.5. No Material Misstatement. No information (including but not limited to any affidavits), with
the
necessaryitoA Bement
make the
negot or report furnished by Borrower to Lender in connection to stet any factiation
contains any material misstatement of fact o
statements contained therein not misleading. .
5.6. Environmental Laws. The Collateral is in compliance, and will continue to be in
local or other nvompli onmentalance
with, all requirements of all applicable federal, state, municipal,
laws, ordinances or regulations.
are
5.7. Taxes. Borrower represents and warrants to the Lender that it has ailed aalll taidreturns oh c any
required to be filed and has paid all taxes shown to be due and pay returns on
assessment received by it to the extent that such taxes and assessments have become due and
payable.
has
5.8. XWdi li on. Each of the Loan Documents executed
and each oust totes Borrol, vela, and
been duly executed and delivered by the parties thereto, with
respec
its
terms (subj binding obligation of Borrower, enforceable in acs o other stmt ar laws atffecting generally the
any applicable bankruptcy, insolvency, moratorium,
enforcement of creditors' rights).
5.9. Ne ativ` a_?e. Except as otherwise permitted hereunder' until such time as Lender has received
?
payment in fu of all obligations of Obligors to the Lender Obligors agree that they will not
lien,
voluntarily sell, lease or otherwise dispose °?the ? ?? ? ?$ oor permit or f $20,000 in or upon thetCol ateral
encumbrance, pledge, mortgage or security days except for (a) that certain mortgage
which remains undischarged for a period of thirty (30) Ys
held by BLC Commercial Capital Corp. dated December 28, 1999 and recorded on December 30,
1999 with the Cumberland County, Pennsylvania Recodheld by "Recorder of Deeds") in
dated November 22,
Book 1589 and Page 0975 and (b) that certain mortgage Y Page 1991 and recorded on November 26, 1991 with the Recorder of e i transfer o its10 teres tin the
0990. Notwithstanding the forgoing, Borrower may sell or
foregoing,
withstanding
the collateral pursuant to the terms of Section 3.3.1 hereof.
to anlien mortgage o judgment against the
commencement of any execution process with respect any
Collateral shall constitute an Event of Termination.
elease of Lender. By execution of this Agreement, Borrower acknowledges and confirms that
S .10.R offsets, defenses or claims, either jointly or severally, against the
Borrower does not have any
Lender or any of its subsidiaries, affiliates, officers, directors, employees, agents, attorneys,
predecessors, successors or assigns whether asserted or ss rteda S oily that
and rrower
may have such offsets, defenses or claims, the Borrower, jointly
discharge the Lender, its subsidiaries, affiliates?t and directors,
predecessors, successors and assigns, both pre
of and from any and all manner of action and actions, cause and causes of action, suits, debts,
controversies, damages, judgments, executions, claims and demands whatsoever, asserted or they ever had, now
unasserted, in law or in equity which against th Lender and/or Lender
defense whether Affiliates
not pr ently s spected,
have without limitation, any presently existing claim or
contemplated or anticipated.
6. SECTION 6 - EVENT'S OF TERMINATION
occurrence of any one or more of the following events sshhalllls ns iT? E Eent of
SNCE:
The
Termination hereunder, it being expressly acknowledged and agreed
6.1. A Proceeding being filed or commenced against any Obligor for dissolution or liquidation; or
or
any of the Obligors voluntarily or involuntarily terminating or dissolving
or
petition any in or being terminated Obligor, or any Bankruptcy O or for
dissolved; or a creditor's committee i appointed fort he b urines p of
makes an assignment for the benefit of
reorganization or to effect a plan of arrangement with creditors is filed by any Obligor; or any
Obli or applies for or permits the appointment of a receiver or trustee for any. or all of its
g been all
are
property, assets or rights, or any such receive?oe atrus bove actlonsaor proceeappointdingsed for
of its properly, assets or rights; or any liable for the Obligations.
commenced by or against any other party l Obli or to ay when due any sum which Obligor is required to pay, or perform
6.2. Failure of any g p y
when due any Obligation which Obligor is required to perform under any of the Loan
Documents or this Agreement (including but not limited to the fees due under Section 3 hereof).
6.3. Failure of any Obligor to perform or observe any term, covenant, warranty or agreement
contained in any of the Loan Documents (except as waived or modified in this Agreement), or
this Agreement on any Obligor's part to be performed or observed.
6.4. Any sale, transfer, or other disposition of the Collateral writteng th onsente Lender except upon
the terms and conditions set forth herein or upon the prior 6
.5. Failure of any Obligor to pay any indebtedness (other than as evidenced by the Loan Documents or within
any grace or this Agreement) or any interest or premium
shall becomenduee by scheduled maturity, by
allowed therefor, whether such and
required prepayment, by acceleration by demand or otherwise; or any Obligor shall fail the perform any term, covenant or agreement on its part to be performed under any agreement or
accelerate or to
q this instrument (other than the Loan Docum ?f r°if the effect of su lhfailureuiso a to be performed
• or within any grace period allowed there, of such indebtedness.
permit the holder(s) of such indebtedness to accelerate the maturity
time after execution and delivery and for any reason, shall
6.6. If any of the Loan Documents at any
cease to be in full force and effect or shall be declaredder be null thand e Loam Doany Onblligo which
deny that it has any or further liability or obligation any within
thr
days Obligor is a party, and the Obligor shall fail to retract Obligor's r g denialsuch
of a liab 1 ty oreobl gat on
after either Lender shall. have notified Obligor that
constitutes an Event of Termination.
6.7. Final judgment or judgments for the payment of money, not reimbursed by insurance proceeds, any
the aggregating in excess of $20,000 shall have been e for a deaoflthirty (34)Idays dur ng which
hereof, and shall have remained undischarged period
execution shall not have been effectively stayed.
6.8. Any Obligor or any person claiming by or through any Obligor commences, joins in, assists,
or as an adverse witness (subject to compulsory
cooperates in or participates as an adverse party
legal process which requires testimony) in any uit or other ther proceeding against Lender relating to
the Loan Documents, the Judgment or this Agreement.
option thereof, or any transfer of properly to Lender or'any portion of such
6.9. Any payment or any p Agreement or otherwise, is
to
property, whether paid or transferred to Lender pursuant to this rescinded, avoided, set aside, rendered void and/or undone. o to antep sentative of any Lender
Obligor or
any Obligor or to any of the creditors of any obligor y on the insolvency,
to any representative of any such obligor's creditors, or otherwise, up
Bankruptcy or reorganization of any Obligor, or otherwise.
warranties, covenants or other agreements of any Obligor contained
6.10-Any of the representations, any financial statements of any
herein (including, but not limited to, the information contained in in material respect as of the date
Obligor given to Lender) shall have been false or incorrect any
of this Agreement.
.1 1.The release of Lender set forth herein is alleged to be invalid or unenforceable by any claim or
6
proceeding initiated or commenced in favor of, through, or by any Obligor.
7. SECTION 7 -- RIGHTS AND REMEDIES
may, at its option and without notice
7.1. Upon the occurrence of any Event of Termination, Lender
and/or exercise any and all rights and
t
to Borrower or Guarantor, execute upon the Judgment
remedies pursuant to the Loan Documents in such manner as Lender in its sole and exclusive
discretion determines. lim 7.2. All of Obligors' obligations and liabilities to the Lender hee unrd r (inc oning, without
and al °it ti , Date, f such
obligors, payment obligations) shall survive the Forbearance other documents; instruments or any obligations are secured under the Loan Documents tiand
to time, grant to the Lender collateral
agreements pursuant to which Obligors may, from
security for obligors' obligations to the Lender.
8. SECTION 8 --GENERAL PROVISIONS . and all
8.1. Eg?enses. Obligors agree to pay to the Lender upon demand (a) an amount. equal to any
out-of-pocket costs or expenses (including legal fees and all recording rof thiseAs) incurred greement and all trat d
preparation and neg
the Lender in connection with the prep and all out of-pocket
matters and (b) from time to time after the Forbearance Termination Date, any appraisal and
costs, fees and expenses (including legal fees and reasonable consulting, accounting, ceder in
other similar professional fees and expenses) hereafter incurred ors otained Lender under this
connection with the preservation of or enforcement of any righb of the ors' obligations is any
Oblig Agreement, the Judgment
be deemed reasonable and payment of which shall be secured by the
the Lender, all of f which shall
Collateral.
artial payment amounts made by any Obligor or any other
8.2. Partial Payment Not Waiver. AnY P d bender will not constitute a waiver of any default,
party on such Obligor's behalf and accepte by Lender under the Judgment, the Loan
waiver of demand, or waiver of any other right held by the
Documents or this Agreement. Except as otherwise modified or amended by this Agreement, shall Judgment and the terms and conditions of the Loan D um n d and confirmed full
the force
Obligoand
e by
and all of the terms of the Loan Documents are expressly
in this
8.3. No Waiver. Except as otherwise expressly provided for in this Agreement, nothing
wa of obligors' obligations or any of the rights of
Agreement shall extend to or affect in any way any Judgment or the Loan Documents, and the
the Lender and remedies of the Lender arising under the remedies with respect to any
Lender shall not be deemed to have waived any or all of such rights or
default or event or condition which, with notice or the lapse of time, or both would
and delivery of this e a dee cult
under the Loan Documents and which upon Borrower's execution time or times any might otherwise exist or which might her by of any of the provisions, warranties, terms
hereafter to require strict performance Y
and conditions contained herein in this Agreement or in any Loan Document shall not waive,
time or times thereafter to demand strict
affect or diminish any right of Lender at any
performance thereof; and, no rights of Lender hereunder shall eb d yees, unless such w waived bs ver any act or knowledge of Lender, its agents, officers o officer of Lender and directed to the
contained in an instrument in writing sign by of its rights shall any applicable Obligor specifying such waiver.
or any of its rights onna future occasion.
operate as a waiver, of any other oft rights 84. Waivers Relatin to Collateral. In the event Lender seeks to take possession of the Collateral
irrevocably waives any
by court process, the Obligor that has pledged such Collateral statue court rule or otherwise
bonds and any surety or security relating thereto required by any rior otherwise the
as an incident to such possession, and recover said any. Collateral. demand for possession p
commencement of any suit or action to
8.5. Further Ass iver such uranees. Each Obligor shall at any time or from time to time execute an an leach case
further instruments, and take such further action as t1?ana ?e ?? reasonably ,including, without
further to effect the purposes of this Agrem hlterests. In addition, each
limitation, to create, perfect, protect or maintain the Lender's Security
Obli or will promptly furnish to Lender such additional i compliance an l or otter information as L ord
may reasonably request from time to time to verify
ascertain whether any Event of Termination has occurred.
8.6. Intentionally Omitted. le al
Borrower is represented by $
8.7. Voluntan' Agreement. Borrower represents and warrants that (1) -ement and has and
counsel of its choice, is fully aware of the terms contained in this
emend the documents elxeculted in
without coercion or duress of any kind, entered into this Agreconnection with this Agreement; or (2) Borr ower has ?othem wank re??t to'thwaived otiationhand its to
have legal counsel of its choice review and represent
Lender that Borrower had the right to
preparation of this Agreement and was informed by
representation legal counsel and representation of their choice. to Lender shall be
8..8. Rules of l(uter retation. Each reference herein or ?r fexence toDBorrower and any pronouns
deemed to include its successors and assigns, and each
referring thereto as used herein shall be construed m the conclude the heirs, legal represent at ivesr
plural as the context may require, and shall be de rovisves, the p successors and permitted assigns of Borrower, ?s orrow w;;hOana SGua be o?'?nas used herein shall,
hereof or in any Loan Document. The mean, unless this n one pa if this Agreement or any DLoan Document is sined by ocument otherwise pgovides or,unlessathe conterty,
otherwise requires,
Agreement or any Loan D promise, every
representation, the "Borrower" or "Guarantor" and each
and several eeach xcep?that the grant ng of the Security
agreement and undertaking shall be jInterest, right of set-off and lien shall be by each Obligor in each of its several respective
properties. No inferences should be made or drawn based either upon (1) earlier drafts of this Agreement or (2) the identity of the party drafting this Agreement.
action or failure to act
8.9. Limitation on Liability. Obligors shall not hold Lender liable due to any oan Document except or under any by Lender herein relating to
m onduct This provision shall survive the
gross the negligence execution or the Judgment
as a result of Lender's
termination or expiration of this Agreement or any Loan Document.
a ent, demand or communication required or permitted'to be given by any
8,10.Notices• Any notice, p ym given provision of this Agreement will be deemed to have be
business hdaydafter the same aisl the sent by
ird en
party designated to receive such notice or, on the t suc
other certified mail, postage and charges prepaid, directed to the l prior written notice to the other
additional addresses as any party might designate by ten (10) days
parties:
With a copy to:
To Purchaser:
Philadelphia Private Capital, LLC
1760 Market Street, Suite 900
Philadelphia, Pennsylvania 19106
Attention: Robert A.C. Jacoby
Facsimile: 215-893-9830
Buchanan Ingersoll PC
1835 Market Street
14th Floor
Philadelphia, PA 19103
Attention: Frederick H. Masters, Esquire
Facsimile: 215-665-8760
To Borrower:
Keith Plasterer
36 Kelly Drive
Carlisle, Pennsylvania 17013
Facsimile:
Klehr, Harrison, Harvey, Brazburg 8- EIlers LLP
260 South Broad Street
Philadelphia, Pennsylvania 19102
Attention: Anthony Tobasso, Esquire
Facsimile: (215) 568-6603
Bindin Affect. This Agreement constitutes the entire and final agreement
8.11.Entire A regiment; agreements, understandings, warranties or representations among
among the parties and there are no
the the parties except as set forth herein. This Agreement
successor tend pennntted a
respectiv ss gns of the
e heirs, administrators, executors, representatives,
remedies,
hereto and thereto an implied, is
parties hereto. Nothing in this Agreement or in the other Loan
p other than the parties
intended to confer upon any party Judgment or the Loan
obligations or liabilities under or by reason of this Agreement, the Documents. Lender 8.12.N anon of Partnershi .The relationship between the deemed to a ipartnerships that of jo n
responsible in any way for
creditor. Nothing contained in this Agreement will be venture between Obligors and Lender, or to cause Under to be liable or
Guarantor,
the actions, liabilities, debts, or obligations of Borrower
.Severabili . Wherever po ssible, each provision of this Agreement shall be interpreted in such
8.13 applicable law; if any clause or provision of this
manner as to be effective and valid under Agreement is determined to be illegal, invalid or unenforceable under any present or future law by
the final judgment of a court of competent jurisdiction, the remainder of this Agreement will not be
rema affected thereby, will continue in full force and effect aa effect un the subjectjurisdict onias if
portions of this Agreement.shall continue in full force and
is Agreement had been executed with the invalid portion illegal thereof eletedreeit is the ablee, theren
th will be
the parties that if any such provision is held to be ito suc o
added in lieu thereof a provision as similar in terms to such provision as is possible, and that such
added provision will be legal, valid and enforceable.
di s. All headings contained in this Agreement are for reference purposes only and are not
8.1 ?l.Hea n .
intended to affect in any way the meaning or interpretation of this Agreement
15.gWMM1ngLaw. This Agreement is executed and delivered in the Commonwealth of Pennsylvania
8.
the "S and it is the desire and intention of the parties
irrevocably consents to th J>?r sdiction
according to the laws of the State. Borrower specifically matter and venue of the federal and state courts of the State with respect to alof any s concerning
r S thg
Agreement, the Judgment or the Loan Documents or the
Borrower agrees that the execution and performance of this Agreement shall have a State situs and
accordingly, Borrower consents to personal jurisdiction in the State.
Bement may be executed in counterparts, each of which will be deemed an
will not be
8.16.Coa iM. This Agr
original document, but all of which will constitute a single document.
until suchtime as a counterpart
binding on or constitute evidence of a contract between the parties party
of this document has been executed by each of the parties ad a del vt red eof deliver id to a copy for
under this Agreement. Counterpart signature pages may
u oses of closing the Acquisition Transaction provided that, originals thereof must be delivered to
p rP
each party promptly following such closing.
8. of the provisions hereof can be changed, waived,
17.Amendment. Neither this Agreement nor any the arties against whom
discharged or terminated, except by an instrument in writing signed by p
enforcement of the change, waiver, discharge or termination is sought.
8.18.Restriction on Amignment. The Borrower may not assign any of its obligations hereunder or
under any related agreement to any person without the prior written consent of the Lender. The
without notice to or consent of any person, sell, assign, securitize, grant a participation
Lender may, rtion of the Judgment, the Note or the Loan Documents.
in or otherwise dispose of all or any po interests Borrower acknowledges that Lender may sell, assign, securitize or to such participate
nsurance companies,
any part of the Judgment, the Note or the Loan Documents rties or investors as may be
pension funds, trusts or other institutional lenders or entities, pa
selected by Lender in its sole and absolute discretion and on terms and conditions
toasef actory t , Lender seeks , assign
Lender in its sole and absolute discretion. In the of the Judgment, the Note or the Loan
securitize or participate interests in all or any part of any f Documents, then Borrower hereby authorizes Lend to to release all or
lendersain urance companies,
credit information provided by Obligors to Lender any such parties or investors without notice
pension funds, trusts or other institutional lenders or entities, p der in
connec
the to Obligors. Borrower agrees to cooperate in of linterests in all or aLenny part of the tiondgmentwith, the
sale, assignment, securitization or participation
Note or the Loan Documents and shall execute and. deliver such estoppel, certificates,
instruments and documents as may be requested by Lender.
9. SECTION 9 -= RELIEF FROM THE AUTOMATIC STAY
file with any Bankruptcy court
9.1. Relief fro Automatic 8ta • In the event any BouShall: nder( he Bankruptcy Code; (ii) be the
of competent jurisdiction or be the subject of any petition
Code; (iii) file or be the subject of any
subject of any order for relief issued under the Bankruptcy composition, readjustment, liquidation,
petition seeking any reorganization, arrangement, dissolution or similar relief under any present or future federal or state act or law relating to
acquiesced in
Bankruptcy, insolvency or other relief for debtors; (iv)
or liquidator; ator ( ) be nted to or of any order,
the appointment of any trustee, receiver, conservator
judgment or decree entered by any court of competent jurisdiction approving a petition filled a ainst
such party for-any reorganization, arrangement, composition, readjustment, liquidation,
or similar relief under any present or future federal or state acLender shall thereupon be
insolvency or other relief for debtors; then, subject to court approval,
entitled and Borrower irrevocably consents to relief from ao of the a ghtspoand s dr by Section 362 of
the Bankruptcy Code, or otherwise, on or against the exercise the Loan Documents, under this
available to Lender as provided pursuant to the Judgment, under
Agreement and as otherwise provided by law, and Borrower hereby irrevocably waives their rights
to object to such relief.
1.0. SECTION 10 - JURY WAIVER AND CONFESSION OF JUDGMENT
10.1. WAIVER OF JURY TRIAL. BORROWER OW OWINGLY, VOLUNTARILY AND
WANES RIGHT BORR ER MAY HAVE OR HEREAFTER
INTENTIONALLY ANY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ?ACTION THE PROCEEDING ERLYING
ARISING OUT OF OR RELATING TO THIS
TRANSACTIONS. BORROWER CERTIFIES THAT H??REpTHE 1;NTED ERXNPRE3SLY OR
ITS REPRESENTATIVES, AGENTS OR COUNSEL AS EVENT OTHERWISE, THAT THE LENDER WOULD NOT INN?TL BY JURY. OF ANY SUCH SUIT,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
p.5
IN VVjTNBSS WH the parties have exfzuted this Agroemerrt 05 an instn?mant under seal as of the
?DF
day and yeas' first written above.
LENDER.
PHILADELPHIA PRIVATE CAPITAL, LLC, a Pennsylvania
limited liability company
$Y: ?
Namc ILObert A c. jam
Title; Manager
,Signatures continue on following Pagel
[Forbearance Agreement. Signature Page]
BORROWERS:
KEITH L. PLAS9 'RER
JAWM L. PLASTERER
[Forbearance AgreemOIlt- Signature PeOl
Schedule I
Litigation
#766309-v7;PHLt GENERAL;PORTEi
RECEIPT FOR PAYMENT
Cumberl
Csle, aandliountPaProt013otary's Office.
PHILADELPHIA PRIVATE CAPITAL (VS)
Case Number 2003-02914
Received of PD BUCHANAN INGERSOLL
Total Non-Cash..... + 5.00
Total Cash......... + .00
Change ............. - .00
Receipt total...... = 5.00
Receipt Date 6/09/2006
Receipt Time 141379010
Receipt No.
PLASTERER KEITH L ET AL
Check.#
Distribution Of Payment
12298
Transaction Description Payment Amount
JDMT/ASSIGN 5.00 CUMBERLAND CO GENERAL FUND
5.00
CONSENT AND ACKNOWLEDGEMENT
THIS CONSENT AND ACKNOWLEDGEMENT (this "Consent" is mad Bank")rd day
of April, 2009 by PENN LIBERTY BANK, a Pennsylvania banking corporation
RECITAL
WHEREAS, on or about December 22, 1999, Orrstown Bank ("On'stown") extended a
loan in the original principal amount of $575,000 (the °°Loan ) to Keith L. Plasterer and Jamie. (collectively, "Borrower"), which Loan is evidenced by a certain Promissory executed by Borrower in favor of Orrstown (the "Note"); and
WHEREAS, the Loan was secured by a mortgage dated December 22,« 19o99e (the
"Mortgage"), on certain real property located at 36 Kelly Drive, Carlisle, PA (the "Property")
recorded in the Office of the Recorder of Deeds in and for Cumberland County,
Book 1589, Page 961; and
WHEREAS, the Loan was guaranteed by W. Wayde Kelly ("Guarantor") pursuant to
that certain Consumer Guaranty dated December 22, 1999, as amended by that certain Consumer
Modification Agreement dated February 19, 2004 executed by Guarantor and Orrstown
Guaranty
(the "Guaranty", and collectively with the Note, the Mortgage, and such ancillary documents
related thereto, the "Loan Documents"); and
WHEREAS, as a result of certain defaults by Borrower, O rstown dobtained ated Ju a judgm 03 on file
, 20 against Borrower in the amount of $459,288.48 p Co ? of o Coan acti mmon Pleas at Docket No. 2003-
and filed by Orrstown in the Cumberland County
2914 (the "Judgment"); and
WHEREAS, pursuant to the terms of that certain Loan Sale Agreement dated May 31,
2006 between Philadelphia Private Capital, LLC ( PPC) and Orrstown Bank ("Orrstown"), PPC
agreed to purchase the Loan from Orrstown; and
WHEREAS, pursuant to that certain Assignment of Judgment dated May 31, 2006 and
filed on June 9, 2006 with the Cumberland County Prothonotary, Orrstown assigned all of its
right, title and interest in and to the Judgment to PPC; and
WHEREAS, pursuant to that certain Assignment of Financing Agreements dated June 2,
2006, Orrstown assigned all of its right, title and interest in and to the Loan Documents to PP ;
and
WHEREAS, Borrower and PPC entered into that certain Forbearance Agreement
an andated
June 2, 2006 to further secure and define the terms of PPC acquisition
repayment thereof by Borrower (the "Forbearance Agreement"); -and
WHEREAS, pursuant to that certain Assignment Agreement dated June 23, 2006 (the
"Bank Assignment"), PPC collaterally assigned to Bank all of PPC's rights under the Loan
{00090191;1}
Documents and the Judgment as partial security for certain credit fJ mill 23, 2006 be tby n Bank
PPC as described in that certain Business Loan Agreement dated and PPC; and and the repeated WHEREAS, as a result of the expiration of the Forbearance eAgreement lBorrower and/or
the
events of default by Borrower under the Loan Documents, an
Guarantor to cure such defaults, PPC desires to (i) revive the judgment against Borrower, and
(ii) exercise its rights under the Guaranty and proceed against Guarantor for the collection of any
and all sums due to PPC under the Loan Documents as permitted by the Guaranty and to institute
an action against Guarantor in furtherance thereof (the "Suit"); and
WHEREAS, PPC has requested that Bank expressly CcazoanwloTdganed B? h?ta°g?,eePPC's
d to
revival of the Judgment and institution of the Suit against
acknowledge and consent to the same.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bank
hereby agrees as follows: 1. Consent to Revival of Judgment. Bank hereby against Boto the rrower, fandgBankeexpressly
for Writ of Revival in order to revive the judgment g
acknowledges that PPC is the real party in interest in such Judgment and has standing to revive
the same and to take any and all necessary action in connection therewith.
2. Consent to Filing of Suit Against Guarantor. Banks reu deoghee Loan he filling of Documents
the Suit by PPC against Guarantor on account of Borrower to cure such default, and
and the failure by Guarantor to perform its duties underem Guaranty 2such suit and has standing
Bank expressly acknowledges that PPC is the real party to bring the same and to take any and all necessary action in connection therewith.
3. Ratification. Bank hereby ratifies and confirms each and every provision of the
Bank Assignment. Except as expressly amended hereby, tterms. he Bank Assignment remains in full
is the intention Bank that
force and effect and is enforceable in accordance and hlereb made a part thereof.
this Consent be attached to the Bank Assignor
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
{00090191;1}
IN WITNESS WHEREOF, Bank has knowingly and voluntarily executed this Consent as
of the day and year first written above.
PENN LIBERTY BANK
By:
Name: /(vBEti=T S;-?NG
Title: Vi cc /,e iac-A17-
{00090191;1}
f
VERIFICATION
I, Richard L. Robertson, verify that I am the Chief Financial Officer of
Philadelphia Private Capital LLC, the within Plaintiff; and am authorized to make this
verification on its behalf, and that the statements made herein are true and correct, based
upon knowledge, information and belief. I understand that the statements made herein
are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to
authorities.
RICHARD L. ROBERTSON
Dated: April', 2009
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AFFIDAVIT OF PROCESS SERVER
of Common Pleas for Cumberland County - CA No. 09-2600
NAME OF COURT
Philadelphia Private Capital vs w. Wayde Kelly
PLAINTIFF/PETITIONER DEFENDANT/RESPONDENT
I declare that I am a citizen of the United States, over the age of eighteen and not a
party to this action. And that within the bounds of the state where service was
effected, I was authorized law tQ gerform Y id service.
SERVICE: I served NAMF, (jW PFRSON / ENTITY BEING SERVED
with the (documents)_ . i
by serving %% Wt d,
at HOME 1?A S75-
ON
MANNER OF SERVICE:
AT Il 4S Pt AA ,
PERSONALLY DELIVERING COPIES TO THE PERSON/AGENT
BEING SERVED.
BY LEAVING COPIES AT THE DWELLING, HOUSE OR USUAL
P ACE OF ABODE OF THE PERSON BEING SERVED, WITH A MEMBER OF
THE HOUSEHOLD, EIGHTEEN OR OLDER AND EXPLAINING THE
NATURE OF THE PAPERS.
DESCRIPTION: AGES SEX F RACE,?-
WGT SFGLASSES OTHER SC e
NON- SERVICE: AFTER DUE SEARCH, CAREFUL INQUIRY AND
DILIGENT ATTEMPTS AT THE ADDRESSES, I HAVE BEEN UNABLE TO
EFFECT SERVICE OF PROCESS UPON THE PERSON / ENTITY BEING
SERVED FOR THE FOLLOWING REASONS:
SIGNATURE O PROCESS SERVER--,
SUBSCRIBED AND SWORN BEFORE ME fl U L 6 K ? IY\
NOTARY PUBLIC
C iffirAwEA.'i'HOFPOPMR I?
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{?PMeIU K y? $AN11i, NO?ffTN1Y M W
qLv ? ?17?7 TVN w^.MjND COUNTY
w COMMON OFM FEBRUARY a 2012
OF WE P `, ? ",! .'t.A. Y
2009 MAY 22 M 2: 18