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HomeMy WebLinkAbout09-3293YROWN STONE NIMEROFF LLC ary Kay Brown Jami B. Nimeroff P.A. ID Nos. 54327 and 71696 1818 Market St., Suite 2300 Philadelphia, Pa 19103 (267)861-5330 PHILADELPHIA PRIVATE CAPITAL, LLC 1760 Market St., Suite 900 Philadelphia, PA 19103 Plaintiff, V. Attorneys for Plaintiff Philadelphia Private Capital, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO. 01, 3,IeS KEITH L. PLASTERER and JAMIE L. PLASTERER, h/w 36 Kelly Drive Carlisle, PA 17013 Defendants. --------------------------------------------------------------- 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas ex-puestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. 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. KEITH L. PLASTERER and JAMIE L. PLASTERER, h/w 36 Kelly Drive Carlisle, PA 17013 Defendants. COMPLAINT COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO.09- 393 04x;Ll -7;4, Plaintiff Philadelphia Private Capital, LLC, by way of complaint against Defendants Keith L. Plasterer and Jami L. Plasterer ("Defendants" or "Borrower"), 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 Keith L. Plasterer is an adult individual residing at 36 Kelly Drive, Carlisle, Pennsylvania 17013. 3. Defendant Jamie L. Plasterer is an adult individual residing at 36 Kelly Drive, Carlisle, Pennsylvania 17013. 4. Defendants are husband and wife. 5. Venue is proper under Pennsylvania Rule of Civil Procedure 1006(a)(1) in that the defendants may be served in this county. FACTUAL BACKGROUND The Loans 6. On or about December 22, 1999, Borrowers borrowed the principal sum of $575,000.00 (the "Loan") from Orrstown Bank. 7. 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. 8. 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"). 9. 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." 10. 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. 2 The Event of Default and Judgments 11. 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. 12. 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"). 13. 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, including the Borrowers' payment of $150,000.00 at execution and payment thereafter in accordance with a schedule of payments. The Note, Mortgage, and all other documents executed in connection with the Loan, l constitute the "Loan Documents" for the purposes of this Complaint. The Sale and Assignment of the Loan Documents and Judgments and the Subsequent Forbearance Agreement of June 2. 2006 14. 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. 15. 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 ' Such document would include, without limitation, the Consumer Guaranty Agreement, the Consumer Guaranty Modification Agreement and the Temporary Forbearance Agreement. Financing Agreements dated May 31, 2006. A true and correct copy of the May 31, 2006 Assignment of Financing Agreements is attached hereto as Exhibit B. 16. 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. 17. 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 C. 18. 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 12.4. 19. 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. 20. 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. 4 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 26. 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"). 27. 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 ¶6.2- 5 28. Upon the occurrence of an Event of Termination, the Lender may, without notice to Borrowers, exercise any and all rights and remedies pursuant to the Loan Documents in its sole discretion. Forbearance Agreement at ¶7.1. The Further Events of Default and Non-Payment 29. Borrowers again failed to make payments when due under the Loan Documents. 30. Borrowers have failed and refused to pay any and all of the sums due under the Note and Forbearance Agreement. 31. As of April 23, 2009, Borrowers owe the Lender under the Note and the Forbearance Agreement, the: 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 32. On or about June 23, 2006, the Lender entered into a Business Loan Agreement with Penn Liberty Bank, a Pennsylvania Banking Corporation. 33. 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 documents2, and the Judgments to Penn Liberty Bank. z 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. 6 34. Penn Liberty Bank has expressly consented to the institution of this action by the Lender. See Consent and Acknowledgement dated April 23, 2009 and attached hereto as Exhibit D. 35. Accordingly, the Lender is the real party in interest and has standing to bring this action. FIRST COUNT Breach of Contract 36. The allegations contained in paragraphs 1 - 35 above are incorporated by reference as if set forth herein. 37. Borrowers were obligated to pay the principal amount plus interest on or before the Forbearance Termination Date. 38. Borrowers have defaulted under the Note and the Forbearance Agreement and have failed to pay the sums due and owing there under. 39. Borrowers are indebted to Lender in the amounts set forth above plus interest, fees and costs as they continue to accrue, without offset of any kind. 40. Plaintiff has been damaged as a result of Borrowers' default under the Note and the Forbearance Agreement 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 Keith L. Plasterer and Jamie L. Plasterer in the amount due to Plaintiff as provided in the Note and acknowledged in the Forbearance Agreement, together with accruing interest under the Note and Forbearance Agreement at the Default Rate Interest, attorneys' fees and cost of suit and post- 7 judgment interest at the Default Rate Interest. BROWN STONE NIMEROFF LLC Mary K Brown, Esquire (54327) Jami B. Nimeroff, Esquire (71696) 1818 Market Street, Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiff Philadelphia Private Capital, LLC Dated: May22, 2009 8 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 unswom falsification to authorities. RICHARD L. ROBERTSON Dated: May 4 2-- 2009 9 A PROMISSORY NOTE Principal Amount: $575,000.00 Initial Rate: 9.500° Date of Note: December 22, 1999 PROMISE TO PAY. I promise to pay to ORRSTOWN BANK ("Lender"), or order, in lawful money of the United States of America, the principal amount of Five Hundred Seventy Five Thousand & 001100 Dollars ($676,000.00), together with interest on the unpaid principal balance from December 22, 1999, until paid in full. The interest rate will not increase above 18.000%. PAYMENT. Subject to any payment changes resulting from changes in the Index, I will pay this loan in 23 regular payments of $6,023.60 each and one Irregular last payment estimated at $567,612.88. My first payment Is due January 22, 2000, and all subsequent payments are due on the same day of each month after that. My final payment due December 22, 2001, will be for all principal and all accrued interest not yet paid. Payments include principal and interest. Interest on this Note Is computed on a 3661365 simple interest basis; that is, by applying the ratio of the annual interest rate over the number of days in a year (366 during leap years), multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. I will pay Lender at Lender's address shown above or at such other plat as Lender may designate fn writing. Unless otherwise agreed or required by applicable law, payments will be applied first to accrued unpaid interest, then to principal, and any remaining amount to any unpaid collection costs and late charges. DEMAND FEATURE. THE LOAN IS NOT PAYABLE ON DEMAND. THE LOAN WILL BE EXTENDED, BY THE LENDER, FOR A THREE (3) CONSECUTIVE ONE YEAR TERMS, PROVIDED THAT NO PAYMENT IS MORE THAN 29 DAYS PAST DUE AT ANY TIME DURING THE IMMEDIATELY PRECEDING TERM. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index which Is the WALL STREET PRIME (the index"). The Index is not necessarily the lowest rate charged by Lender on Its loans. If the Index becomes unavailable during the term of this Ioan,.Lender may designate a substitute index after notice to me. Lender will tell me the current Index rate upon my request. I understand that Lender may make loans based on other rates as well. The interest rate change will not occur more often than each day. The index currently Is 8.600% per annum. The interest rate to be applied to the unpaid principal balance of this Note will be at a rate of 1.000 percentage point over the Index, adjusted 9 necessary for the maximum rate limitation described below, resulting in an initial rate of 9.600% per annum. Notwithstanding any other provision of this Note, the variable interest rate or rates provided for in this Nate will be subject to the following maximum rate. NOTICE: Under no circumstances will the interest rate on this Note be more than the lesser of 18.000% per annum or the maximum rate allowed by applicable law. Unless waived by Lender, any Increase in the interest rate will Increase the amounts of my payments. PREPAYMENT. I may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve me of my obligation to continue to make payments under the payment schedule. Rather, they will reduce the principal 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 5.000% of the regularly scheduled payment. DEFAULT. 1 will be in default if any of the following happens: (a) I fail to make any payment when due. (b) 1 break any promise I have made to Lender, or I fall to comply with or to perform when due any other term, obligation, covenant, or condition contained in this Note or any agreement related to this Note, or in any other agreement or loan I have with Lender. (c) Any representation or statement made or furnished to Lender by me or on my behalf is false or misleading in any material respect either now or at the time made or furnished. (d) I die or become insolvent, a receiver is appointed for any part of my property, I make an assignment for the benefit of creditors, or any proceeding Is commenced either by me or against me under any bankruptcy or insolvency laws, (e) Any creditor tries to take any of my property on or In which Lender has a lien or security interest. This includes a garnishment of any of my accounts with Lender. (i') Any of the events described in this default section occurs with respect to any guarantor of this Note. If any default, other than a default In payment, is curable and If I have not been given a notice of a breach of the same provision of this Note within the preceding twelve (12) months, it may be cured (and no event of default will have occurred) if I, after receiving written notice from Lender demanding cure of such default: (a) cure the default within fifteen (16) days; or (b) if the cure requires more than fifteen (15) days, Immediately Initiate steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continue and complete all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required, by applicable law, declare the entire unpaid principal balance on this Note and all accrued unpaid interest immediately due, and then I will pay that amount. Lender may hire or pay someone else to help collect this Note If I do not pay. I also will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. If not prohibited by applicable law, I also will pay any court costs, in additioni to all other sums provided by law. If judgment is entered in connection with this Note, interest will continue to accrue on this Note after judgment at the interest rate applicable to this Note at the time judgment is entered. This Note has been delivered to Lender and accepted by Lender in the Commonwealth of Pennsylvania. If there Is a lawsuit, I agree upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, the Commonwealth of Pennsylvania. This Note shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. RIGHT OF SETOFF. I grant to Lender a contractual security Interest in, and hereby assign, convey, deliver, pledge, and transfer to Lender all my right, title and interest in and to, my accounts with lender (whether checking, savings, or some other account), including without limitation all accounts held jointly with someone else and all accounts I may open in the future, excluding however all IRA and Keogh accounts, and all trust accounts for which the grant of a security interest would be prohibited by law. I authorize Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on this Note against any and all such accounts. COLLATERAL. This Note is secured by, in addition to any other collateral, a Mortgage dated December 22, 1999, to Lender on real property located in CUMBERLAND County, Commonwealth of Pennsylvania, all the terms and conditions of which are hereby incorporated and made a part of this Note. Borrower: KEITH L PLASTERER (SSN: 181-52-3990) tender: ORRSTOWN BANK JAMIE L PLASTERER (SSN:) King Street Executive Office 36 KELLY DR P.O. Box 260 CARLISLE, PA 17013 77 East King Street Shippensburg, PA 17257 12_22_1999 PROMISSORY NOTE Page Loan No (Continued) GENERAL PROVISIONS. This Note has a demand feature. The inclusion of specific default provisions or rights of Lender shall not preclude Lender' right to declare payment of this Note on Its demand. Lender may delay or'forgo enforcing any of its rights or remedies under this Note without losing them. I and any other person who signs, guarantees or endorses this -Note, to the extent allowed by law, waive presentment, demand for payment protest and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated In writing, no party who signs thi! Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renev or extend (repeatedly and for any length of time) this loan, or release any party or guarantor or collateral; or impair, fall to realize upon or perlec 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 othe 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", anc "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 PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS AND THE NOTICE TO COSIGNER SET FORTH BELOW. 1, AND EACH OF US, AGREE TO THE TERMS OF THE NOTE AND ACKNOWLEDGE RECEIPT OF A COMPLETED COPY OF THE NOTE. THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED, BORROWER: X? TH L PLASTERER X MIE L PLA RER NOTICE TO COSIGNER You are being asked to guarantee this debt. Think carefully before you do. It 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. The lender can collect this debt from you without first trying to collect from the borrower. The lender can use the some collection methods against you That can be used against the borrower, such as suing you, garnishing your wages, etc. If this debt is ever in default, that fact may become a part of YOUR credit record. This notice Is not the contract that makes you liable for the debt. Variable Rate. Balloon. LASER PRO, Reg. U.S. Pat. & T.M. Off., Ver, 3.28b (c) t 999 CFI ProServlces, Inc. All rights reserved. IPA-D2o E3.28 Fe. 28a P3.28a osg23CL.I. NJ 3 ASSIGNMENT OF FINANCING AGREEMENTS FOR VALUE RECEIVED, ORRSTOWN BANK, a Pennsylvania banking corporation ("Assignor"), hereby assigns to PHILADELPHIA PRIVATE CAPITAL, LLC a Pennsylvania limited liability company ("Assignee"), with an address of 1760 Market St. Suite 900, Philadelphia PA 19106, and its successors and assigns, all of Assignor's rights, title and interest in and to the following described document: Mortgage made by Keith L. Plasterer 6 KellT C?arlislepPA?recorded in the Office,of 1999, the on certain real property located at y Dr., 0961, et se Recorder of Deeds for'Cumberland County at Book 1589, p. ?•; TOGETHER with the promissory note and/or the other obligations described in- and secured by said.mortgage, and all money due and to grow due thereon, with interest. TO HAVE AND TO HOLD the same unto the said Assignee and to the successors, legal representatives and assigns of the Assignee forever. [Signatures appear on following page] IN WITNESS WHEREOF, Assignor has caused this instrument to be executed and delivered by its duly authorized officers this of 14, 2006. ORRSTOWN BANK L By: Narne: Title: to Assignment of Financing Agreements - Signature Page] COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF lJ??u1 w°" On this n` day of , 2006, before me, a Notary Public, the undersigned ,III)% Uk- , who acknowledged him to be an officer of officer, personally appeared Orrstown Bank, the institu cribed in th foregoing instrument, and that he, being authorized to do so, execut d the foregoing instrument for the purpose therein contained by signing his name thereto as of said institution. WITNESS my hand ?an Notarra seal, the day and year aforesaid. Nota Public My Commission Expires: COMMONWEALTH OF PENNSYLVANIA L Notarial Seal Public Jennifer S. Lindsay, Notary Cedisle Boro, Cumbodand County My Corr>rnission Expires Nov. 29.2007 Member, Pennsyivanis Association Of Notaries ci1?iof Financing Agreements - Acknowledgement Page] c FORBEARANCE AGREEMENT This Forbearance Agreement ("Agreement") is made as of June 2, 2006 by and between KEITH L. PLASTERER and JAMIX L. PLASTERER, having a mailing address of 36 Kelley Drive, Carlisle, Pennsylvania 17013 (individually and colleatively, jointly and severally, the "Borrower") and PHILADELPHIA 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. "Acquisition Transaction" shall have the meaning set forth in Section 2.5 hereof. 1 1.2. "Assignment of Financine 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. "Assignment of Judgment" 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. 1.4. "Collateral' has the meaning set forth in Section 2.2 hereof 1.5. "Event of Termination" means each and every event specified in Section 6 of this Agreement or in any other section herein. 1.6. "Forbearance Termination Date" means the earlier to occur of (a) June 2, 2007; and (b) the date of the occurrence of any one or more Events of Termination. 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. 1.10. "Loan" means all extensions of credit and financial accommodations made by the Original Lender, or by any affiliate of the Original Lender, to the Borrower under the Loan 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 Oblieation" has the meaning set forth in Section 3.1.1 hereof. 1.13. "Mortaaae I means that certain Mortgage from Borrower to Original Lender dated December 22, 1999 and recorded December 30, 1999 with the Cumberland County Recorder of Deeds Office in Book 1589, Page 0961. 1.14. "Note" means that certain Promissory Note dated December 22, 1999 made by Borrower in favor of Original Lender in the original principal amount of $575;000.00. 1.15. "Obli_ ations" mean all indebtedness, obligations and liabilities of Borrower and Guarantor to Lender (as successor in interest to Original Lender) of every kind and description, direct or indirect, secured or unsecured, joinf or.seveml, absolute or contingent, due or to become due, including any overdrafts whether for payment or performance, now existing or hereafter arising, whether presently contemplated or not, regardless of how same arise or by what instrument, agreement or book account they may be evidenced, or whether evidenced by any instrument, agreement or book account, including, but not limited to this Agreement, the Note, the Mortgage, the Judgment, all loans (including any loan by modification, renewal or extension), all indebtedness, all undertakings to take or refrain from taking any action, all indebtedness, liabilities or obligations owing from Borrower to others which Lender may have obtained by purchase, negotiation, discount, assignment or otherwise; and all interest, taxes, fees, charges, expenses and attorney's fees, (whether or not such attorney is a regularly salaried employee of Lender, any parent corporation or any subsidiary or affiliate thereof, whether now existing or hereafter created), chargeable to Borrower or incurred by Lender under this Agreement, or any other document or instrument delivered in connection herewith. 1.16. "Obligors" shall mean collectively, the Borrower and Guarantor, each individually, an "Obligor" 1.17. "Person" means any individual, corporation, association, partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof. 1.18. "Security Interest" means any transaction which creates or provides for a lien by agreement. 1.19. "State" means the Commonwealth of Pennsylvania. 2, SECTION 2 - BACKGROUND 2.1. Under -the terms and provisions of the Loan Documents, Original Lender lent to Borrower and Borrower borrowed from Original Lender certain sums of money pursuant to that certain Promissory Note dated as of December 22, 1999 in the original principal amount of $575,000.00 (the "Note"). Borrower and Lender agree and acknowledge that the principal amount outstanding and due under the Note as of the date hereof is $450,000.00 plus the sum of $19,735.00 which is due pursuant to Section 3.43 hereof and if not timely paid shall be due with interest thereon as part of the unpaid principal amount due and owing under the Note and the Judgment.. 2.2. To secure repayment of the Loan, Borrower granted Original Lender a Security Interest in the real property located at 36 Kelley Drive, Carlisle, Pennsylvania (the "Collateral"). 2.3. Simultaneous herewith, Lender has acquired Original. Lender's rights, title and interest in and to the Loan pursuant to the Assignment of Financing Agreements together with the Warranty Bill of Sale (collectively, the "Acquisition of.the Loan"). 2.4. Borrower acknowledges and agrees that Borrower has defaulted on its obligations under the Loan Documents by, among other things, Borrower's failure to make payments as and when due (collectively, the "Events of Default"). 2.5. As a result of those Events of Default, the Original Lender exercised its rights and remedies under the Loan Documents and commenced a foreclosure of the Mortgage. Pursuant to the foregoing, a judgment was filed against the Property. on June 19, 2003 by the Court of Common Pleas of Cumberland County, Pennsylvania, Docket No. 2003-2914, in the amount of $459,288.48 to the benefit of Original Lender (the "Judgment"). Simultaneous herewith, Lender has acquired Original Lender's rights, title and interest in and to the Judgment pursuant to the Assignment of Judgment (the "Acquisition of the Judgment" together with the Acquisition of the Loan, the "Acquisition Transaction"). 2.6. Borrower acknowledges and agrees that neither the Original Lender nor the Lender have any obligation to make additional loans or otherwise extend credit to Borrower under the Loan Documents or otherwise. Borrower has now requested that the Lender forbear from executing on the Judgment or from executing its rights and remedies under the Loan Documents as a result of the 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 Judgment and fr6m exercising its rights and remedies under the Loan Documents provided that such forbearance is on the terms and conditions set forth in this Agreement and, further 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. 31.1. Notwithstanding anything to the contrary set foith in the Loan Documents, from and after the date hereof through and including the Forbearance Terminate Date, the outstanding principal amount of the Loan shall bear interest at a rate per annum equal to the fourteen percent (14.0%) which the Borrower hereby acknowledges is less than the maximum interest rate permitted under the Loan Documents. Interest shall be due and payable monthly, on the first business day of each month, and shall be computed on a simple interest basis as such calculation is set forth in the "Payment" section of the Note provided that, as a condition to this Agreement, the Borrower agrees to pay to Lender no less than the equivalent of three (3) 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 of interest when due and such failure continues for a period of ten (10) days after such payment becomes due, Lender may, at its option, impose a delinquency or "late" charge equal to five percent (5%) of the amount of such past due payment notwithstanding the date 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 due hereunder and shall not be deemed to be additional interest or penalty, but shall be deemed to be liquidated damages because of the difficulty in computing the actual amount of damages in advance. Any cure period provided for under the Loan Documents (without implying the existence of such cure period) shall not affect 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. 3.1.2. Notwithstanding any provisions of the Loan Documents to the contrary, upon the occurrence of the Forbearance Termination Date the outstanding principal balance of the Loan shall bear interest, commencing on the Forbearance Termination Date, at a rate per annum equal to eighteen (18%) percent, but not to exceed the maximum rate of interest permitted by applicable law. 3.2. Principal Repayment. 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 and owing to the Lender under the Loan Documents, together with all interest thereon (including but not limited to the Minintum Interest Payment Obligation, to the extent not already satisfied by Borrower) and all fees (including but not limited to the fees set forth in Section 3.4 hereof] and any expenses of the Lender incurred in connection therewith. 33. Agreement to Sell Real Estate Collateral. 3.3.1. So long as the Forbearance Termination Date has not occurred, Borrower or Guarantor may request that the Lender release its security interest in the Collateral (a "Release Request's to be sold by Borrower, provided that such Release Request shall be given to Lender not less 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 (i) the date such sale is to be consummated, (ii) the purchase price of the Collateral to be sold and (iii) a written closing statement, outlining the disposition of the proceeds of the sale, to be delivered at least five (S) days prior to the closing. No sale of Collateral is permitted until the Lender has approved the Release Request (which approval may be granted or denied and shall be in the Lender's sole discretion). 3.3.2. With respect to the sale of the Collateral sold after the date hereof pursuant to paragraph 3.3.1 above, the Borrower shall deliver to the Lender 100% of all proceeds from such sale. 3.3.3.. Borrower shall provide a fully executed copy of the contract of sale to Lender immediately upon receipt of same and shall provide such other title documents and records relating to the Collateral and the sale thereof as the Lender deems necessary and appropriate. 3.3.4. Notwithstanding anything to the contrary contained herein, upon the sale of the Collateral and as a condition of the release of the security interest of the Lender in the Collateral, Borrower shall pay all amounts due and owing hereunder, including but not limited to all fees; all costs and expenses incurred by Lender in connection with this Agreement or in connection with" the Lender's 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 Closing Costs. 3.4.1. Within ten (10) days following the date hereof, Borrower shall pay to Lender the sum of $19,735.00 to be applied to the payment of the following sums; $225.00 for recording fees, $10.00 for search fees, $6,000 for Lender's legal fees and $13,500 for the Lender's closing fee. 3.4.2. Upon the earlier to occur of (i) the Forbearance Terminate Date or (ii) the sale of the Collateral, Borrower agrees to pay Lender a fee equal to $4,500. 4. SECTION 4 - REPRESENTATIONS AND WARRANTIES OF LENDER Forbearance Obligations. Subject to the satisfaction of the terns and conditions set forth herein, from and after the date hereof and up to but not including the Forbearance Termination Date, Lender will stay the pending execution sale and will not execute on the Judgment or exercise or enforce its rights or remedies against Borrower or the Guarantor to which Lender would be entitled under the terms of the Loan Documents by reason of the occurrence of the Events of Default; provided that such forbearance shall not act as a waiver of Lender's right to enforce any such right or remedy after the Forbearance Termination Date. Furthermore, nothing contained herein shall be construed as requiring Lender to extend the Forbearance Termination Date. 5. SECTION 5 - REPRESENTATIONS AND WARRANTIES OF OBLIGORS 5.1. Ratification of Existing Agreements. All of Borrower's obligations, indebtedness and liabilities to the Lender as evidenced by or otherwise-arising under the Loan Documents and the Judgment, except as set forth in this Agreement, are, by Borrower's execution of this Agreement, ratified and confirmed in all respects by Borrower. Borrower acknowledges that all of Borrower's obligations, indebtedness and liabilities to the Lender under the Loan Documents are joint and several. In addition, by Borrower's execution of this Agreement, Borrower represents and warrants that no counterclaim, right of set-off or defense of any kind exists or is outstanding with respect to such obligations, indebtedness and liabilities. Borrower acknowledges that the Security interests securing the Borrower's obligations to the Lender constitute a valid lien on the Collateral and that no Obligor shall take any action to impair or invalidate the Lender's Security Interest in the Collateral. 5.2. Representations and Warranties. All of the representations and warranties respectively made by Borrower in the Loan Documents are true and correct on the date hereof as if made on and as of the date hereof, except to the extent that any of such representations and warranties related by their terms to a prior date. 5.3. Continued Compliance. Borrower shall comply and continue to comply with all of the terms, covenants and provisions contained in the Loan Documents, except as such terms, covenants and provisions are expressly modified by this Agreement upon the terms set forth herein. 5.4. No Litigation. Except as otherwise disclosed on Schedule I attached hereto, Borrower represents and warrants to the Lender that there is no claim, loss, contingency, litigation, or proceeding whether or not pending, threatened, or imminent against or otherwise affecting it that involves the possibility of any judgment or liability not fully covered by insurance or that may result in a material adverse change in the condition of the Borrower or the Collateral (financial or otherwise). 5.5. No Material Misstatement. No information (including but not limited to-any affidavits), exhibit or report furnished by Borrower to Lender in connection with the negotiation of this Agreement contains any material misstatement of fact or omits to state any fact necessary to make the statements contained therein not misleading. 5.6. Environmental Laws. The Collateral is in compliance, and will continue to be in compliance with, all requirements of all applicable federal, state, municipal, local or other environmental laws, ordinances or regulations. 5.7. Taxes. Borrower represents and warrants to the Lender that it has filed all tax returns which are required to be filed and has paid all taxes shown to be due and payable on said returns or on any assessment received by it to the extent that such taxes and assessments have become due and payable. 5.8. Binding Obligation. Each of the Loan Documents executed by or on behalf of Borrower and has been duly executed and delivered by the parties thereto, and each constitutes a legal, valid, and binding obligation of Borrower, enforceable in accordance with its respective terms (subject to any applicable bankruptcy, insolvency, moratorium, or other similar laws affecting generally the enforcement of creditors' rights). 5.9. Negative Pledge. Except as otherwise permitted hereunder, until such tune as Lender has received payment in full of all obligations of Obligors to the Lender Obligors agree that they will not voluntarily sell, lease or otherwise dispose of the Collateral, or permit or suffer to exist any lien, encumbrance, pledge, mortgage or security interest in excess of $20,000 in or upon the Collateral which remains undischarged for a period of thirty (30) days except for (a) that certain mortgage held by BLC Commercial Capital Corp. dated December 28, 1999 and recorded on December 30, 1999 with the Cumberland County, Pennsylvania Recorder of Deeds (the "Recorder of Deeds") in Book 1589 and Page 0975 and (b) that certain mortgage held by Dollar Bank dated November 22, 1991 and recorded on November 26, 1991 with the Recorder of Deeds in Book 1036 and Page 0990. Notwithstanding the forgoing, Borrower may sell or otherwise transfer its interest in the Collateral pursuant to the terms of Section 3.3.1 hereof. Notwithstanding the foregoing, the commencement of any execution process with respect to any lien, mortgage or judgment against the Collateral shall constitute an Event of Termination. 5.10.Release of Lender. By execution of this Agreement, Borrower acknowledges and confirms that Borrower does not have any offsets, defenses or claims, either jointly or severally, against the Lender or any of its subsidiaries, affiliates, officers, directors, employees, agents, attorneys, predecessors, successors or assigns whether asserted or unasserted. To the extent that Borrower may have such offsets, defenses or claims, the Borrower, jointly and severally, release and forever discharge the Lender, its subsidiaries, affiliates, officers, directors, employees, agents, attorneys, predecessors, successors and assigns, both present and former (collectively the "Lender Affiliates") 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 unasserted, in law or in equity which against the Lender and/or Lender Affiliates they ever had, now have without limitation, any presently existing claim or defense whether or not presently suspected, contemplated or anticipated. 6. SECTION 6 --- EVENTS OF TERMINATION The occurrence of any one or more of the following events shall constitute an Event of Termination hereunder, it being expressly acknowledged and agreed that TIME IS OF THE ESSENCE: 6.1. A proceeding being filed or commenced against any Obligor for dissolution or liquidation; or any of the Obligors voluntarily or involuntarily terminating or dissolving or being terminated or dissolved; or a creditor's committee is appointed for the business of any Obligor, or any Obligor makes an assignment for the benefit of creditors, or a petition in Bankruptcy or for reorganization or to effect a plan of arrangement with creditors is filed by any Obligor; or any Obligor applies for or permits the appointment of a receiver or trustee for any. or all of its property, assets or rights, or any such receiver or trustee shall have been appointed for any or all of its property, assets or rights; or any of the above actions or proceedings whatsoever are commenced by or against any other party liable for the Obligations. 6.2. Failure of any Obligor to pay when due any sum which Obligor is required to pay, or perform 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 securing the Obligations, except upon the terms and conditions set forth herein or upon the prior written consent of Lender. 6.5. Failure of any Obligor to pay any indebtedness (other than as evidenced by the Loan Documents or this Agreement) or any interest or premium thereon, when due or within any grace period allowed therefor, whether such indebtedness shall become due by scheduled maturity, by 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 instrument (other than the Loan Documents or this Agreement) when required to be performed or within any grace period allowed therefor, if the effect of such failure is to accelerate or to permit the holder(s) of such indebtedness to accelerate the maturity of such indebtedness. 6.6. If any of the Loan Documents at any time after execution and delivery and for any reason, shall cease to be in full force and effect or shall be declared to be null and void, or any Obligor shall deny that it has any or further liability or obligation under any of the Loan Documents to which Obligor is a party, and the Obligor shall fail to retract in writing such denial within three (3) days after either Lender shall. have notified Obligor that Obligor's denial of liability or obligation constitutes an Event of Termination. 6.7. Final judgment or judgments for the payment of money, not reimbursed by insurance proceeds, aggregating in excess of $20,000 shall have been rendered against any Obligor, after the date hereof, and shall have remained undischarged for a period of thirty (30) days during which execution shall not have been effectively stayed. 6.8. Any Obligor or any person claiming by or through any Obligor commences, joins in, assists, cooperates in or participates as. an adverse party or as an adverse witness (subject to compulsory legal process which requires testimony) in any suit or other proceeding against Lender relating to the Loan Documents, the Judgment or this Agreement. 6.9. Any payment or any portion thereof, or any transfer of property to Lender or'any portion of such property, whether paid or transferred to Lender pursuant to this Agreement or otherwise, is rescinded, avoided, set aside, rendered void and/or undone or otherwise is restored by Lender to any Obligor or to any of the creditors of any Obligor or to any representative of any Obligor or to any representative of any such Obligor's creditors, or otherwise, upon the insolvency, Bankruptcy or reorganization of any Obligor, or otherwise. 6.10.Any of the representations, warranties, covenants or other agreements of any Obligor contained herein (including, but not limited to, the information contained in any financial statements of any Obligor given to Lender) shall have been false or incorrect in any material respect as of the date of this Agreement. 6.11.The release of Lender set forth herein is alleged to be invalid or unenforceable by any claim or proceeding initiated or commenced in favor of, through, or by any Obligor. 7. SECTION 7 - RIGHTS AND. REMEDIES 7.1. Upon the occurrence of any Event of Termination, Lender may, at its option and without notice to Borrower or Guarantor, execute upon the Judgment and/or exercise any and all rights and remedies pursuant to the Loan Documents in such manner as Lender in its sole and exclusive discretion determines. 7.2. All of Obligors' obligations and liabilities to the Lender hereunder (including, without limitation, Obligors' payment obligations) shall survive the Forbearance Termination Date, and all of such obligations are secured under the Loan Documents and any other documents, instruments or agreements pursuant to which Obligors may, from time to time, grant to the Lender collateral security for Obligors' obligations to the Lender. 8. SECTION 8 - GENERAL PROVISIONS. 8.1. Expenses. Obligors agree to pay to the Lender upon demand (a) an amount, equal to any and all out-of-pocket costs or expenses (including legal fees and all recording fees) incurred or sustained by the Lender in connection with the preparation and negotiation of this Agreement and all related matters and (b) from time to time after the Forbearance Termination Date, any and all out-of=pocket costs, fees and expenses (including legal fees and reasonable consulting, accounting, appraisal and other similar professional fees and expenses) hereafter incurred or sustained by the Lender in connection with the preservation of or enforcement of any rights of the Lender under this Agreement, the Judgment and the Loan Documents. or in respect of any of Obligors' obligations to the Lender, all of which shall be deemed reasonable and payment of which shall be secured by the Collateral. 8.2. Partial Payment Not Waiver. Any partial payment amounts made by any Obligor or any other party on such Obligor's behalf and accepted by Lender will not constitute a waiver of any default, waiver of demand, or waiver of any other right held by Lender under the Judgment, the Loan Documents or this Agreement. Except as otherwise modified or amended by this Agreement, the Judgment and the terms and conditions of the Loan Documents shall remain in full force and effect and all of the terms of the Loan Documents are expressly ratified and confirmed by the Obligors. 8.3. No Waiver. Except as otherwise expressly provided for in this Agreement, nothing in this Agreement shall extend to or affect in any way any of Obligors' obligations or any of the rights of the Lender and remedies of the Lender arising under the Judgment or the Loan Documents, and the Lender shall not be deemed to have waived any or all of such rights or remedies with respect to any default or event or condition which, with notice or the lapse of time, or both would become a default under the Loan Documents and which upon Borrower's execution and delivery of this Agreement might otherwise exist or which might hereafter occur. The failure of Lender at any time or times hereafter to require strict performance by Obligors of any of the provisions, warranties, terms and conditions contained herein in this Agreement or in any Loan Document shall not waive, affect or diminish any right of Lender at any time or times thereafter to demand strict performance thereof; and, no rights of Lender hereunder shall be'deemed to have been waived by any act or knowledge of Lender, its agents, officers or employees, unless such waiver is contained in an instrument in writing signed by an officer of Lender and directed to the applicable Obligor specifying such waiver. No 'waiver by Lender of any of its rights shall operate as a waiver, of any other of its rights or any of its rights on a future occasion. 8.4. Waivers Relating to Collateral. In the event Lender seeks to take possession of the Collateral by court process, the Obligor that has pledged such Collateral hereby irrevocably waives any bonds and any surety or security relating thereto required by any statute, court rule or otherwise as an incident to such possession, and waives any. demand for possession prior to the commencement of any suit or action to recover said Collateral. 8.5. Further Assurances. Each Obligor shall at any time or from time to time execute and deliver such further instruments, and take such further action as the Lender may reasonably request, in each case further to effect the purposes of this Agreement and the Loan Documents, including, without limitation, to create, perfect, protect or maintain the Lender's Security hiterests. In addition, each Obligor will promptly furnish to Lender such additional financial or other information as Lender may reasonably request from time to time to verify compliance with this Agreement, or to ascertain whether any Event of Termination has occurred. 8.6. Intentionally Omitted. 8.7. Voluntary Agreement. Borrower represents and warrants that (1) Borrower is represented by legal counsel of its choice, is fully aware of the terms contained in this Agreement and has voluntarily and without coercion or duress of any kind, entered into this Agreement and the documents executed in connection with this Agreement; or (2) Borrower has knowingly and intentionally waived its right to have legal counsel of its choice review and represent them with respect to the negotiation and preparation of this Agreement and was informed by Lender that Borrower had the right to representation legal counsel and representation of their choice. 8.8. Rules of Interpretation. Each reference herein or in any Loan Document to Lender shall be deemed to include its successors and assigns, and each reference to Borrower and any pronouns referring thereto as used herein shall be construed in the masculine, feminine, neuter, singular or plural as the context may require, and shall be deemed to include the heirs, legal representatives, successors and permitted assigns of Borrower, all of whom shall be bound by the provisions hereof or in any Loan Document. The terms "Borrower" and "Guarantor" as used herein shall, if this Agreement or any Loan Document is signed by more than one party., mean, unless this Agreement or any Loan Document otherwise provides or unless the context otherwise requires, the "Borrower" or "Guarantor" and each of them and each and every representation, promise, agreement and undertaking shall be joint and several, except that the granting of the Security Interest, 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. 8.9. Limitation on Liability. Obligors shall not hold Lender liable due to any action or failure to act by Lender herein relating to the execution of the Judgment or under any Loan Document except as a result of Lender's gross negligence or willful misconduct. This provision shall survive the termination or expiration of this Agreement or any Loan Document. 8.10.Notices. Any notice, payment, demand .or communication required or permitted'to be given by any provision of this Agreement will be deemed to have been given when delivered personally to the party designated to receive such notice or, on the third business day after the same is sent by certified mail, postage and charges prepaid, directed to the following addresses or to such other or additional addresses as any party might designate by ten (10) days prior written notice to the other parties: To Purchaser: Philadelphia Private Capital, LLC 1760 Market Street, Suite 900 Philadelphia, Pennsylvania 19106 Attention: Robert A.C. Jacoby Facsimile: 215-893-9830 With a copy to: Buchanan Ingersoll PC 1835 Market Street 14th Floor Philadelphia, PA 19103 Attention: Frederick H. Masters, Esquire Facsimile: 215-665-8760 To Borrower: Keith Plasterer Klehr, Harrison, Harvey, Brazburg & Ellers LLP 36 Kelly Drive 260 South Broad Street Carlisle, Pennsylvania 17013 Philadelphia, Pennsylvania 19102 Facsimile: Attention: Anthony Tobasso, Esquire Facsimile: (215) 568-6603 8.11.Entire Agreement; Binding Affect. This Agreement constitutes the entire and final agreement among the parties and there are no agreements, understandings, warranties or representations among the parties except as set forth herein. This Agreement will inure to the benefit and bind the respective heirs, administrators, executors, representatives, successors and permitted assigns of the parties hereto. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any party other than the parties hereto and thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement, the Judgment or the Loan Documents. 8.12.Negation of Partnership. The relationship between the Obligors and Lender is that of debtor and creditor. Nothing contained in this Agreement will be deemed to create a partnership or joint venture between Obligors and Lender, or to cause Lender to be liable or responsible in any way for the actions, liabilities, debts, or obligations of Borrower and/or Guarantor. 8.13.Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law; if any clause or provision of this 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 affected thereby, will continue in full force and effect in all other jurisdictions and said remaining portions of this Agreement.shall continue in full force and effect in the subject jurisdiction as if this Agreement had been executed with the invalid portions thereof deleted. It is the intention of the parties that if any such provision is held to be invalid, illegal or unenforceable, there will be 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. 8.14.Headinss. All headings contained in this Agreement are for reference purposes only and are not intended to affect in any way the meaning or interpretation of this Agreement. 8.1 S.Governing Law. This Agreement is executed and delivered in the Commonwealth of Pennsylvania (the "State") and it is the desire and intention of the parties that it be in all respects interpreted according to the laws of the State. Borrower specifically and irrevocably consents to the jurisdiction and venue of the federal and state courts of the State with respect to all matters concerning this Agreement, the Judgment or the Loan Documents or the enforcement of any of the foregoing. 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. 8.16.Counternarts. This Agreement may be executed in counterparts, each of which will be deemed an original document, but all of which will constitute a single document. This document will not be binding on or constitute evidence of a contract between the parties until such time as a counterpart of this document has been executed by each of the parties and a copy thereof delivered to each party under this Agreement. Counterpart signature pages may be delivered by facsimile copy for purposes of closing the Acquisition Transaction provided that originals thereof must be delivered to each party promptly following such closing. 8.17.Amendin Neither this Agreement nor any of the provisions hereof can be changed, waived, discharged or terminated, except by an instrument in writing signed by the parties against whom enforcement of the change, waiver, discharge or terrinination is sought. 8.18.Restriction on Assignment. 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 Lender may, without notice to or consent of any person, sell, assign, securitize, grant a participation in or otherwise dispose of all or any portion of the Judgment, the Note or the Loan.Documents. Borrower acknowledges that Lender may sell, assign, securitize or participate interests in all or any part of the Judgment, the Note or the Loan Documents to such lenders, insurance companies, pension funds, trusts or other institutional lenders or entities, parties or investors as may be selected by Lender in its sole and absolute discretion and on terms and conditions satisfactory to Lender in its sole and absolute discretion. In the event that Lender seeks to sell, assign, securitize or participate interests in all or any part of the Judgment, the Note Or the Loan Documents, then Borrower hereby authorizes Lender to release all or part of any financial or credit information provided by Obligors to Lender to any such lenders, insurance companies, pension funds, trusts or other institutional lenders or entities, parties or investors without notice to Obligors. Borrower agrees to cooperate in all respects with. Lender in connection with the sale, assignment, securitization or participation of interests in all or any part of the Judgment, the 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 9.1. Relief from Automatic-Stu , In the event any Borrower shall: (i) file with any Bankruptcy court of competent jurisdiction or be the subject of any petition under the Bankruptcy Code; (ii) be the subject of any order for relief issued under the Bankruptcy Code; (iii) file or be the subject of any petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal or state act or law relating to Bankruptcy, insolvency or other relief for debtors; (iv) has sought or consented to or acquiesced in the appointment of any trustee, receiver, conservator or liquidator; or (v) be the subject of any order, judgment or decree entered by any court of competent jurisdiction approving a petition filed against such party for-any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal or state act or law relating to Bankruptcy, insolvency or other relief for debtors; then, subject to court approval, Lender shall thereupon be entitled and Borrower irrevocably consents to relief from automatic stay imposed by Section 362 of the.Bankruptcy Code, or otherwise, on or against the exercise of the rights and remedies otherwise available to Lender as provided pursuant to the Judgment, under the Loan Documents, under this Agreement and as otherwise provided by law, and Borrower hereby irrevocably waives their rights to object to such relief. 10. SECTION 10 -- JURY WAIVER AND CONFESSION OF JUDGMENT 10. 1, WAIVER OF JURY TRIAL. BORROWER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT BORROWER MAY HAVE OR HEREAFTER HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE UNDERLYING TRANSACTIONS. BORROWER CERTIFIES THAT NEITHER THE LENDER NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDER WOULD NOT IN THE EVENT OF ANY SUCH SUIT, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY. F.5 iN WITNESS WTMWF, the parties have executed this Agreement as an instrument under seal as of the day and year first written above. LENDER: PHILADELPHIA PRIVATE CAPITAL, LIZ, a Pennsylvania limited liability company By., Name: Robert A.C. Jacoby Title: Manager [Signatures continue on following page] [Forbearance Agreement- Signature Page] BORROWERS: KEITH L. PLAS RER JAMIE L. PLASTERER [Forbearance Agreement Signature Page] Schedule I Litigation RECEIPT FOR PAYMENT Cumberland County Prothonotary's Office. Receipt Date 6/09/200( Carlisle, Pa 17013 Receipt Time 14:35:2: Receipt No. 17901( PHILADELPHIA PRIVATE CAPITAL (VS) PLASTERER KEITH L ET AL Case Number 2003-02914 Received of PD BUCHANAN.INGERSOLL Total Non-Cash..... + 500 Check.# 1.2298 Total Cash......... + .00 Change ............. - .00 Receipt total...... = 5.00 ------------------------ Distribution Of Payment ---------------------------- Transaction Description Payment Amount JDMT/ASSIGN 5.00 CUMBERLAND CO GENERAL FUND 5.00 p CONSENT AND ACKNOWLEDGEMENT THIS CONSENT AND ACKNOWLEDGEMENT (this "Consent") is made this 23`d day of April, 2009 by PENN LIBERTY BANK, a Pennsylvania banking corporation (`Bank"). RECITAL WHEREAS, on or about December 22, 1999, Orrstown Bank ("Orrstown") extended a loan in the original principal amount of $575,000 (the "Loan") to Keith L. Plasterer and Jamie L. Plasterer (collectively, "Borrower"), which Loan is evidenced by a certain Promissory Note executed by Borrower in favor of Orrstown (the "Note"); and WHEREAS, the Loan was secured by a mortgage dated December 22, 1999 (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, Pennsylvania at 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 Guaranty Modification Agreement dated February 19, 2004 executed by Guarantor and Orrstown (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, Orrstown obtained a judgment against Borrower in the amount of $459,288.48 pursuant to an action filed dated June 19, 2003 and filed by Orrstown in the Cumberland County Court of Common Pleas at Docket No. 2003- 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 PPC; and WHEREAS, Borrower and PPC entered into that certain Forbearance Agreement dated June 2, 2006 to further secure and define the terms of PPC's acquisition of the Loan and the repayment thereof by Bonover (tlie "Forbearance Agreement ; ari -" "-- 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 facilities extended by Bank to PPC as described in that certain Business Loan Agreement dated June 23, 2006 between Bank and PPC; and WHEREAS, as a result of the expiration of the Forbearance Agreement and the repeated events of default by Borrower under the Loan Documents, and the failure of Borrower and/or 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 acknowledge and consent to PPC's revival of the Judgment and institution of the Suit against Guarantor, and Bank has agreed to 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 consents to the filing of the Praecipe for Writ of Revival in order to revive the Judgment against Borrower, and Bank expressly 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. Bank hereby consents to the filing of the Suit by PPC against Guarantor on account of Borrower's default under the Loan Documents and the failure by Guarantor to perform its duties under the Guaranty to cure such default, and Bank expressly acknowledges that PPC is the real party in interest in such suit and has standing 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, the Bank Assignment remains in full force and effect and is enforceable in accordance with its terms. It is the intention of Bank that this Consent be attached to the Bank Assignment and thereby made a part thereof. [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: Title: ?/, ac /94 /'V {00090191;1} 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 29 Vim ?t r:? s Pct 71 ro ,b? P -11 a a 5 oa y AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania Case Number: 09-3293 Plaintiff: PHILADELPHIA PRIVATE CAPITAL, LLC. County of Cumberland vs. Defendant: KEITH L. PLASTERER AND JAMIE L. PLASTERER, H/W For: Mary Kay Brown BROWN STONE NIMEROFF LLC 1818 Market Street Suite 2300 Philadelphia, PA 19103 Common Pleas Court Received by C & E LEGAL COURIER SERVICE, INC. on the 7th day of June, 2009 at 2:59 pm to be served on KEITH L PLASTERER, 36 KELLY DRIVE, CARISLE, PA. 17013. I, Russell D'alonzo, being duly sworn, depose and say that on the 7th day of June, 2009 at 5:41 pm, I: Individually Served the above mentioned with a true copy of this COMPLAINT AND NOTICE TO DEFEND with the date and hour endorsed thereon by me, pursuant to State Statutes. I certify that I am over the age of 18, have no interest in the above action, and am a Process Server, in good standing, in the judicial circuit in which the process was served. Subscribed and Sworn to before me on the 15th day of rmp ho i erso ly known to NOTARY PUBLIC S C & 91-MAL COURIER SERVICE, INC. 1341 N. Delaware Avenue Suite 303 Philadelphia, PA -19125 (215) 739-7050 Our Job Serial Number: 2009000346 ' '•'?F:ALTHiDF,PENN&YL? NOTARIAL SM CELESTE SOSE .NoWy Pubiic _ty of P &j ht ®1 2-2001 Database Services, Inc. - Process Server's Toolbox V5.5f ' ' Commi """`' 3 206.9 3UNI 1 9 Ni 0 39 r"'.:- t .!l.1 r t AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania Case Number: 09-3293 Plaintiff: PHILADELPHIA PRIVATE CAPITAL, LLC. County of Cumberland vs. Defendant: KEITH L. PLASTERER AND JAMIE L. PLASTERER, H1W For: Mary Kay Brown BROWN STONE NIMEROFF LLC 1818 Market Street Suite 2300 Philadelphia, PA 19103 Common Pleas Court Received by C & E LEGAL COURIER SERVICE, INC. on the 7th day of June, 2009 at 3:00 pm to be served on JAMIE L PLASTERER, 36 KELLY DRIVE, CARISLE, PA. 17013. I, Russell D'alonzo, being duly sworn, depose and say that on the 7th day of June, 2009 at 5:41 pm, I: Substitute Served by leaving a true copy of this COMPLAINT AND NOTICE TO DEFEND with the date and hour of service endorsed thereon by me, at the within named person's usual place of abode, to a person residing therein who is 18 years of age or older to wit: KEITH L PLASTERER, HUSBAND and informing said person of the contents thereof. Description of Person Served: Age: 58, Sex: M, Race/Skin Color: White, Height: 6'3, Weight: 200, Hair: Blonde, Glasses: N I certify that I am over the age of 18, have no interest in the above action, and am a Process Server, in good standing, in the judicial circuit in which the process was served. efore me on the 15th day of Subscribed and SworDAq J by the t wh ' per ally known to e. NOTARY PUBLIC G da r- LM2AL %oVUM1r-M OCRVIVC, 1m- 1341 N. Delaware Avenue Suite 303 Philadelphia, PA 19125 (215) 739-7050 Oo ONW-NAL +fM P wftYOMW Our Job Serial Number: 2009000347 NOTM&SIM CELEM SOW N01INY POW z?t ® 92-2001 Database Services, Inc. - Process Servers Toolbox V5.5f FILE L OF THEE . CRY 2009 . UIN, 19 Pill i2: n AMdtY.llrK40 HrawVlM4MH3 JAIF ,;A;?A.T€ amofaw 1: 1 111 Et L