HomeMy WebLinkAbout09-3606
FAFILESTheritsNemberslstI 1470TILESTurrent\9\11470.9c Defeuh\l 1470.9.cwm.conf2.wpd
Christopher E. Rice, Esquire
Attorney I.D. No. 90916
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
MEMBERS l I FEDERAL CREDIT
UNION,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
COLISEUM REAL ESTATE GROUP,
INC.,
Defendant
NO. 09 - 311 # CIVIL TERM
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Mortgage attached as Exhibit "B" to the Complaint
filed in the above-captioned case, we appear for the Defendant, Coliseum Real Estate Group, Inc.,
and confess judgment in ejectment in favor of Members I" Federal Credit Union against Coliseum
Real Estate Group, Inc., for possession of the real property having addresses at 410 St. Johns Church
Road, Camp Hill, Hampden Township, Cumberland County, Pennsylvania, and 4610 East Trindle
Road, Camp Hill, Hampden Township, Cumberland County, Pennsylvania, and described more
specifically on the legal description attached hereto as Exhibit "A."
Respectfully submitted:
MARTSON LAW OFFICES
By: ?? 5- tL__
Christopher E. Rice, Esquire
Attorney I.D. No. 90916
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
Exhibit "A"
Tract No. 1: ALL that certain parcel of land, situate in Hampden Township, Cumberland County,
Pennsylvania, bounded and described in accordance with a survey prepared by Hoover Engineering
Services, Inc., dated January 21, 2002, File No. 202005, as follows:
BEGINNING at a point located along the Western Legal Right-of-Way Line of St. John's Church
Road (S.R. 2029), at land now or late of Atlantic Refining and Marketing Corp.; thence along St.
John's Church Road, South 40 degrees 43 minutes 04 seconds East, a distance of 245.72 feet to a
point; thence along lands now or late of James Yaple, South 49 degrees 16 minutes 56 seconds West,
a distance of 351.05 feet to a steel pin; thence along lands now or late of Realm, on a curve, curving
to the left, having a radius of 320.00 feet and an arc length of 366.58 feet (a chord bearing of North
65 degrees 10 minutes 58 seconds West, and a chord distance of 346.86 feet) to a steel pin; thence
along lands now or late of Barone Enterprises and Frontier Partners L.P., North 60 degrees 13
minutes 56 seconds East, a distance of 219.29 feet to a point; thence along lands previously
referenced North 30 degrees 13 minutes 04 seconds West, a distance of 49.34 feet to a point; thence
along lands now or late of Atlantic Refining and Marketing Corp., North 65 degrees 08 minutes 56
seconds East, a distance of 281.12 feet to a point, the place of Beginning.
CONTAINING 108,319.51 square feet or 2.4867 acres.
BEING the same premises which Cecelia R. Spera, Trustee of Trust Under Item IV of the Will of
Joseph J. Spera f/b/o Katheryne T. Spera and Alex Grass, Co-Partners, by their Deed dated June 1,
2005, and recorded in Cumberland County, Pennsylvania Deed Book 269, Page 1994, granted and
conveyed unto Coliseum Real Estate Group, Inc.
Tract No. 2: ALL that certain tract of land with improvements thereon erected, situate in Hampden
Township, Cumberland County, Pennsylvania, bounded and described in accordance with Plan
#500532 prepared by D.P. Raffensberger Associates, Engineers & Surveyors dated November 30,
1977, as follows:
BEGINNING at a point on the southern right-of-way line of Trindle Road at line of lands now or late
of Sibarco Corporation and lands now or late of Spera Industrial Co.; thence along said line of lands
now or late of Sibarco Corporation and lands now or late of Spera Industrial Co., South twenty-nine
degrees forty-four minutes East a distance of two hundred fee (South 29 ° 44' East 200') to a point;
thence continuing along lands now or late of Spera Industrial Co., South sixty degrees forty-three
minutes West, a distance of one hundred twenty-two and twenty-nine hundredths feet (South 60°
43' West 122.29') to a point in line of lands now or late of Roy E. Prescott et ux; thence along lands
now or late of Roy E. Prescott et ux., North twenty-six degrees fourteen minutes thirty-eight seconds
West, a distance of two hundred nine and fifty hundredths feet (North 26 ° 14'38" West 209.50') to
a point on th said southern right-of-way line of Trindle Road; thence along the said southern right-of-
way line of Trindle Road, North sixty-five degrees thirty-eight minutes East, a distance of one
hundred ten feet (North 65 ° 38' East 110') to a point, the place of BEGINNING.
BEING the same premises which Elie-Joe Khouri, by Deed dated January 3, 2006, and recorded in
Cumberland County, Pennsylvania Deed Book 272, Page 3459, granted and conveyed unto Coliseum
Real Estate Group, Inc.
FARLES\Clients\Memberslstl 1470\FILES\Cur=t\9\11470.9c Defauh\11470.9.com.conf2.wpd
Christopher E. Rice, Esquire
Attorney I.D. No. 90916
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
MEMBERS 1ST FEDERAL CREDIT : IN THE COURT OF COMMON PLEAS OF
UNION, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
: NO. 09 -,3,4 0 G CIVIL TERM
COLISEUM REAL ESTATE GROUP,
INC.,
Defendant
COMPLAINT FOR CONFESSION OF JUDGMENT
FOR POSSESSION OF REAL PROPERTY
Members 1 ` Federal Credit Union, by and through its undersigned counsel, hereby files this
Complaint for Confession of Judgment for Possession of Real Property pursuant to Pa. R.C.P. No.
2971 and in support thereof, avers the following:
1. Plaintiff, Members ls` Federal Credit Union, ("Plaintiff') is a federally chartered
credit union located at 5000 Louise Drive, Mechanicsburg, Pennsylvania 17055.
2. Defendant, Coliseum Real Estate Group, Inc., ("Defendant") is a Pennsylvania
corporation with an address of 410 St. Johns Church Road, Camp Hill, Pennsylvania 17011.
3. On June 12, 2007, and modified on July 30, 2007, Coliseum Entertainment Group,
Inc., as borrower, entered into certain loan documents with Plaintiff to borrow a total of
$5,838,424.00 ("Loan"), which loan documents included, but were not limited to, a Loan Agreement
and notes.
4. Defendant executed certain loan documents in connection with the Loan, including,
but not limited to, the Loan Agreement pursuant to which Plaintiff agreed to loan to Coliseum
Entertainment Group, Inc., the Loan, and Defendant guaranteed and provided collateral to Plaintiff
to ensure repayment of the Loan. A true and correct copy of the executed Loan Agreement is
attached hereto as Exhibit "A" and is incorporated herein by reference.
5. As further consideration for the Loan, Defendant executed an Open-End Mortgage
("Mortgage") in favor of Plaintiff encumbering the real property located at 410 St. Johns Church
Road, Camp Hill, Hampden Township, Pennsylvania, and 4610 East Trindle Road, Camp Hill,
Hampden Township, Pennsylvania. A true and correct copy of the Mortgage is attached hereto and
incorporated as Exhibit "B."
6. On June 12, 2007, Defendant executed a Continuing Guaranty and agreed to, among
other things, guarantee full and prompt payment and performance of all of the obligations of
Coliseum Entertainment Group, Inc., including, but not limited to, the Loan, payments under the
Loan Agreement and any notes ("Obligations"). A true and correct copy of the Continuing Guaranty
is attached hereto as Exhibit "C" and is incorporated herein by reference.
7. Per the loan documents, including the Loan Agreement, Coliseum Entertainment
Group, Inc., was required to, among other things, make monthly payments until the principal sum
was paid in full.
8. Per the Continuing Guaranty, Defendant guaranteed full and prompt payment and
performance of all of the obligations of Coliseum Entertainment Group, Inc., pursuant to, and
including, the Loan Agreement.
9. Coliseum Entertainment Group, Inc., defaulted under the Loan Agreement by and
including, but not limited to, allowing a material adverse change in its financial condition, filing
Chapter 11 bankruptcy, and failing to make payments as required under the loan documents
(collectively the "Events of Default")
10. The Mortgage provides that Plaintiff, after the Events of Default have occurred, may
confess judgment against Defendant for possession of the real property located at 410 St. Johns
Church Road, Camp Hill, Hampden Township, Cumberland County, Pennsylvania, and 4610 East
Trindle Road, Camp Hill, Hampden Township, Cumberland County, Pennsylvania. True and correct
copies of the Deeds for the properties located at 410 St. Johns Church Road and 4610 East Trindle
Road are attached hereto as Exhibit "D" and are incorporated herein by reference.
11. The total sum due and owing for the Obligations as of April 1, 2009, is itemized as
follows:
Principal
Late Fees
Interest (through 4/1/09)
Costs of Suit (estimated)
Attorney Fees
$5,797,073.51
$15,130.64
$258,341.81
$2,000.00
$200.000.00
Total:
$6,272,545.96*
*Plus interest per diem at $1,151.47 from April 1, 2009, along with additional costs and
fees incurred, until paid in full.
12. All conditions precedent have been satisfied to allow Plaintiff to confess judgment
for possession against Defendant under the Mortgage.
13. Judgment has not been confessed for possession against Defendant in any other
jurisdiction under the Mortgage.
14. Plaintiff is the holder of the Continuing Guaranty and is the mortgagee under the
Mortgage.
15. The Continuing Guaranty and Mortgage were executed and delivered in connection
with a commercial transaction, and judgment is not being entered by confession against a natural
person in connection with a residential lease.
16. Neither the Continuing Guaranty nor the Mortgage have been assigned.
WHEREFORE, Members I" Federal Credit Union requests that this Court enter judgment
by confession against Coliseum Real Estate Group, Inc., for possession of the real property located
at 410 St. Johns Church Road, Camp Hill, Hampden Township, Cumberland County, Pennsylvania,
and 46 10 East Trindle Road, Camp Hill, Hampden Township, Cumberland County, Pennsylvania,
and any other relief this Court deems appropriate.
Respectfully submitted,
MARTSON LAW OFFICES
Christopher E. Rice, Esquire
Attorney I.D. No. 90916
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
10 East High Street
Carlisle, PA 17013
Date: (? - 2 - 0 9 (717) 243-3341
Attorneys for Plaintiff
EXHIBIT A
LOAN AGREEMENT
THIS AGREEMENT, made the 12th day of June, 2007, in Cumberland County,
Pennsylvania, by and between Members Ist Federal Credit Union, a federally chartered credit
union, having an office at 5000 Louise Drive, Mechanicsburg, Pennsylvania 17055 (hereinafter
designated "Lender") Coliseum Entertainment Group, Inc., a Pennsylvania corporation with an
address of 518 Katrina Court, Mechanicsburg, Pennsylvania 17050 (hereinafter designated
"Borrower"); and Coliseum Real Estate Group, Inc., a Pennsylvania corporation with an address
of 518 Katrina Court, Mechanicsburg, Pennsylvania 17050 (hereinafter designated "Guarantor").
BACKGROUND
The Guarantor is the fee simple owner of certain real property located at 410 St. Johns
Church Road, Camp Hill, Hampden Township, Cumberland County, Pennsylvania (Tax parcel
number 10-22-0529-015), as evidenced by a deed recorded in the Office of Recorder of Deeds,
Cumberland County, Pennsylvania, at Deed Book 269, Page 1994, and 4610 East Trindle Road,
Camp Hill, Hampden Township, Cumberland County, Pennsylvania (Tax parcel number 10-22-
0529-002), as evidenced by a deed recorded in the Office of Recorder of Deeds, Cumberland County,
Pennsylvania, at Deed Book 272, Page 3459 (collectively, the "Real Property"). Borrower intends
to satisfy the loan from Lender to Guarantor and obtained permanent financing from Lender.
Borrower desires to borrow from the Lender and the Lender, subject to the terms and conditions set
forth herein, is prepared to lend to Borrower an amount not to exceed the principal sum of Five
Million Eight Hundred Thirty-Eight Thousand Four Hundred Twenty-Four and 00/100
Dollars (US $5,838,424.00). Guarantor will guarantee and provide certain collateral to Lender to
ensure repayment of the Loan (hereinafter defined).
NOW THEREFORE, in consideration of the mutual promises and undertakings of the
parties set forth herein, and with the intention of being legally bound hereby, the parties hereto agree
as follows:
The Loan.
(A) Purpose and Amount. The Lender shal l lend to the Borrower an amount not to exceed
the principal sum of Five Million Eight Hundred Thirty-Eight Thousand Four Hundred Twenty-Four
and 00/100 Dollars (US $5,838,424.00) (the "Loan"). The Loan shall be advanced to Borrower by
the Lender for the purpose of paying off the construction loan with Lender to Guarantor, along with
paying a guarantee fee to the United States Department of Agriculture ("USDA"), and in accordance
with and subject to the terms and conditions set forth herein.
(B) Loan Documents.
(i) The Borrower's obligation to repay the Loan is evidenced by the Borrower's
mortgage note dated this date in the principal amount of the Loan ("Note"), providing for the
payment of principal, together with interest thereon at the rate set forth therein, in such installments,
at such times, and according to such further terms as set forth in the Note.
(ii) As security for the Note and all of the Borrower's obligations thereunder and
hereunder, the Borrower shall execute and deliver to the Lender or has or shall cause to be executed
and delivered to the Lender by the Guarantor, as the case may be, the following documents
(hereinafter, the "Collateral Documents"): an open-end mortgage and security agreement
("Mortgage") covering the Real Property and the improvements (which shall consists of the
buildings, fixtures, machinery, and equipment) of Borrower or Guarantor now or hereafter attached
to or installed in the Real Property or necessary or incidental to the general operation and
maintenance of the Real Property and all renewals and replacements thereof or additions thereto, all
as more specifically described in the Mortgage.
The Borrower and Guarantor shall execute and deliver such additional documents and
instruments as the Lender shall reasonably require in order to perfect the Lender's interest in any of
the foregoing property. The Note, Mortgage, and other documents and instruments referred to above
(all of which, together with this Agreement, are hereinafter collectively referred to as the "Loan
Documents") shall be in form and substance satisfactory to the Lender, and all necessary filing and
recording fees with respect thereto shall be paid by the Borrower.
2. Representations and Warranties. The Borrower and Guarantor hereby represent and warrant
to the Lender (which representations and warranties shall survive until the Loan has been paid in
full) that:
(A) The execution, delivery, and performance of this Agreement, the Loan Documents,
and all other documents and instruments related thereto to be issued hereunder will not, at the time
of execution and delivery thereof, or at any time thereafter, violate any provision of law or result in
the breach of or constitute a material default or require any consent under any agreement, indenture,
or instrument to which Borrower or Guarantor is a party, or their property may be bound or affected,
nor create or result in the imposition or any lien, charge, security interest or other encumbrance
(other than pursuant to this Agreement and the Loan Documents) upon or with respect to any of their
properties pursuant to any agreement, indenture, instrument, judgment, decree, or order to which
Borrower or Guarantor is a party or subject or by which their property may be bound or affected.
(B) This Agreement, the Loan Documents, and all other documents and instruments
related thereto to be issued hereunder have been properly authorized and are the legal, valid and
binding obligations of Borrower and Guarantor, enforceable against Borrower and Guarantor in
accordance with their respective terms.
(C) All financial statements and information heretofore furnished by Borrower or
Guarantor to Lender have been prepared in accordance with generally accepted accounting principles
and practices consistently applied, are substantially complete and correct, and fully and fairly present
the financial condition of Borrower and Guarantor as of the date or dates thereof and the results of
their operations for the periods ending on said date(s), and as of this date there has been no material
adverse change in the financial condition of Borrower or Guarantor from that set forth in the most
recent financial statements so furnished or in the business, operations, or assets of Borrower or
Guarantor.
(D) Borrower and Guarantor have filed all Federal, State and local tax returns and other
reports which are required to be filed and has paid or made provision for the payment of all taxes
which have or may become due under and pursuant to said tax returns, or under or pursuant to any
assessment received from any taxing authority or authorities to which Borrower or Guarantor is
2
subject; has made adequate provision for the payment of such taxes, assessments or other charges
accruing but not yet payable; and has no knowledge of any deficiency or additional assessment in
connection with any taxes, assessments or charges not provided for in their books.
(E) Borrower and Guarantor are in substantial compliance with all laws, regulations,
ordinances, statutes, rules, orders and decrees applicable with respect to (1) any restrictions,
specifications or other requirements pertaining to the conduct of its businesses; and (2) the use,
maintenance and operation of the personal and real properties owned or leased by Borrower or
Guarantor in the conduct of its businesses.
(F) No representation or warranty by the Borrower or Guarantor contained herein or in
any certificate or other document furnished by the Borrower or Guarantor pursuant hereto or as an
inducement hereto contains any untrue statement of fact or omits to state a fact necessary to make
such representation or warranty not misleading in light of the circumstances under which it was
made.
(G) There are no claims, suits, actions or legal proceedings pending, or to the knowledge
of Borrower or Guarantor threatened, against or affecting Borrower, Guarantor or the properties or
assets owned by Borrower or Guarantor, or used in the conduct of the businesses of Borrower or
Guarantor which, if adversely determined, would materially and adversely affect the financial
condition of Borrower, Guarantor or either of their normal method of doing business, and there are
no proceedings by or before any governmental commission, board, bureau, arbitrator or
administrative agency, pending or, to the knowledge of Borrower or Guarantor, threatened against
Borrower or Guarantor.
(H) No consent, approval or other authorization of or by any court, administrative agency
or other governmental authority is required in connection with the Borrower's or Guarantor's
execution and delivery of or compliance with any of the Loan Documents or any other document or
instrument relating to the Loan executed by the Borrower or Guarantor.
(I) The Plans and Specifications are identical in all respects to those on which were based
all approvals from governmental and quasi-governmental authorities having jurisdiction over the
Real Property and construction of any and all improvements on the Real Property.
3. Affirmative Covenants. The Borrower and Guarantor covenant and agree that, until the Loan
has been paid in full (certain subparagraphs are highlighted to emphasize the USDA requirements):
(A) The Lender shall have the right to require Borrower to provide the Lender with an "as
built" survey of the Real Property showing the location of all property lines, the location of all
improvements created thereon, and any easements affecting the Real Property.
(B) The construction of any and all improvements were performed in strict accordance
with the plans and specifications, with all applicable statutes, laws, and ordinances with the rules,
regulations and requirements of all public authorities having jurisdiction over the Real Property and
any improvements, and with requirements of fire underwriters.
C The Borrower and Guarantor have and shall pay or discharge any mechanic's liens
or other encumbrances which may be filed or recorded against the Real Property or any
improvements within ten (10) days after it receives notice thereof, from the Lender or otherwise.
3
(D) During the term of the Loan, the Borrower and Guarantor shall maintain their main
• deposit account(s) with Lender and will grant the Lender an unconditional, unlimited, and self-
operating right to debit its deposit account(s) without notice and at any time payment(s) become due
to the Lender under the Loan.
(E) Any and all guarantors of the Loan, including the Guarantor, shall remain in effect
during the term of the Loan.
(F) Borrower and Guarantor shall duly and timely pay and discharge all taxes or other
claims-which might become a lien upon any of their property except to the extent that such items are
being in good faith appropriately contested with adequate reserves therefor having been set aside and
with security satisfactory to the Lender.
(G) Borrower and Guarantor shall maintain, preserve, and keep their properties in good
repair, working order and condition, reasonable wear and tear excepted, and make all reasonable
repairs, replacements, additions, betterments and improvements thereto.
(H) Borrower and Guarantor shall maintain all licenses, permits and approvals necessary
or useful in the conduct of the business, and substantially comply with all statutes, rules and
regulations, the non-compliance of which would adversely affect their business, assets or condition,
financial or otherwise.
(I) The Borrower must obtain reviewed financial statements annually, prepared by
a Certified Public Accountant in accordance with Generally Accepted Accounting Principles,
and submit them to the Lender within 90 days of business fiscal year end. Financial Statements
shall contain, at a minimum, a balance sheet and a profit and loss statement reflecting the
financial condition of the Borrower as of its year end. The Lender is responsible for obtaining
all required financial statements form the Borrower, analyzing them, and providing copies of
statements with a detailed written analysis to USDA within 120 days. Borrower and Guarantor
shall furnish or cause to be furnished to Lender any other information regarding the business affairs
and condition (financial or otherwise) of or with respect to Borrower and Guarantor that Lender shall
reasonably request, and permit periodic examination of the making of copies and abstracts from their
books, accounts, records, ledgers and assets of every kind and description, at all reasonable times
upon oral or written request of Lender, by Lender's authorized attorneys, accountants and
representatives, and permit the Lender or its agents or representatives to discuss the affairs, finances
and accounts of the Borrower and Guarantor with its officers.
All personal and commercial guarantors of the Loan must provide compiled financial
statements to the Lender within 90 days of guarantor's fiscal or calendar year.
(J) The Borrower and Guarantor will not create, incur, assume or suffer to exist any
mortgage, pledge, assignment, conditional sale or other title retention agreement, lien, charge or
encumbrance of or upon, or security interest in, or with respect to Real Property, any improvements
or any of their properties or assets, now owned or hereafter acquired, securing any indebtedness or
other obligations, except (i) in favor of Lender or (ii) items acquired by purchase money financing
from another lender(s). Similarly, the Borrower and Guarantor shall not sell, lease, transfer or
otherwise dispose of all or a substantial part of Borrower's or Guarantor's property, business, or
assets, without the prior written consent of the Lender. In addition, Borrower and Guarantor shall
4
not provide outside investments, loans, or advances to stockholders, owners, officers, or affiliates
without the prior written consent of the Lender.
(K) The Borrower and Guarantor will not make or permit to be made any change(s) in
ownership or management without the Lender's prior written consent.
(L) Borrower and Guarantor shall notify Lender promptly of any default or any event or
occurrence that but for the passage of time or giving of notice or both would constitute a default.
(M) 'At anytime upon request of Lender, Borrower and Guarantor will execute and deliver
to Lender, in form to be reasonably satisfactory to Lender, such additional documentation with
respect to the indebtedness and liability of Borrower or Guarantor to Lender as Lender shall deem
necessary or desirable, in the exercise of reasonable business judgment.
(O) Borrower and Guarantor shall not co-sign, serve as a guarantee, or otherwise
becoming liable for debts or obligations of others.
(P) Borrower, and Guarantor if the Lender requires the same, will maintain a tangible
balance sheet equity of not less than 20%. Tangible balance sheet equity will be determined in
accordance with Generally Accepted Accounting Principles and will not include subordinated debt
or appraisal surplus. Lender will require and Borrower will provide, a pro forma balance sheet
prepared by an independent Certified Public Accountant, reflecting new debt and a certification that
the Borrower meets the minimum tangible balance sheet equity requirement to be provided to the
USDA.
(Q) The Borrower, and Guarantor if the Lender requires the same, shall maintain at least
$100,000.00 working capital at all times.
® The facility, a restaurant and family entertainment center complex, located at the Real
Property, is fully operational and the appropriate official(s) have certified the same.
(S) Dividends payments will be limited to an amount that, when taken, will not
adversely affect the repayment ability of the Borrower. No dividend payments will be made
unless:
(1) an after-tax profit was made in the preceding fiscal year;
(2) the Borrower is and will remain in compliance with covenants of this
Agreement, the Conditional Commitment with USDA, and any other
covenant made by the Borrower;
(3) all Borrower debts are paid to a current status; and
(4) prior written concurrence of the Lender is obtained.
This is not intended to apply to dividend payments to cover personal tax liability
resulting from profitability of the business.
(T) Borrower will not invest in additional fixed asset purchases in an annual
aggregate of more than $50,000.00 without concurrence of the Lender and USDA. Borrower
will not lease, sell, transfer, or otherwise encumber fixed assets without the concurrence of the
Lender. Dispositions of fixed assets serving as collateral for this Loan must also have the
concurrence of USDA Rural Development.
5
(U) Compensation of officers and owners will be limited to an amount that, when
taken, will not adversely affect the repayment ability of the Borrower. This amount may not
be increased year to year unless:
(1) an after-tax profit was made in the preceding fiscal year;
(2) the Borrower is and will remain in compliance with covenants of this
Agreement, the Conditional Commitment with USDA, and any other
covenant made by the Borrower;
(3) all Borrower debts are paid to a current status; and
(4) prior written concurrence of the Lender is obtained.
(V) Borrower's debt-to-net worth, based upon year end financial statements and as
defined by Generally Accepted Accounting Principles, shall not exceed 5 to 1, and the
Borrower's current ratio, similarly defined, shall not fall below 1 to 1.
(W) Borrower shall not enter into any merger or consolidation or sell the business
without prior written concurrence of the Lender.
(X) Outside investment and loans/advances to stockholders, owners, officers, or
affiliates require the prior written consent of the Lender. Loans from stockholders, owners,
officers or affiliates must be subordinate to the guaranteed loan or converted to stock. No
payments are to be made on these debts unless the B&I loan is current and in good standing.
4. Conditions Precedent. The obligation of the Lender to fund the Loan to the Borrower is
subject to the satisfaction of the following conditions precedent at the time of each such advance:
(A) Each and all of the representations and warranties set forth in paragraph 2 hereof shall
be true and correct in all respects, as though separately and independently made on and as of the date
of each such funding.
(B) Each and all of the covenants set forth in paragraph 3 hereof shall have been
performed and complied with in all respects.
(C) There shall be no event of default in existence under any of the Loan Documents.
(D) The Borrower and Guarantor shall have paid for all premiums on insurance policies
and the legal fees and disbursements of the Lender's counsel in connection with the Loan and provide
proof of the same.
(E) The Loan Documents shall have been duly executed and delivered to the Lender and,
where applicable, shall have been recorded or filed in the appropriate public office.
(F) The following documents shall have been delivered by or on behalf of the Borrower
or Guarantor to the Lender:
(I) An ALTA Mortgage Policy of title insurance acceptable to the Lendcr (thc
"Title Policy") which shall include extended coverage and all other endorsements which the Lender
may require issued in an amount not less than the amount of the Loan, ensuring that the Mortgage
on the Real Property as more fully described in the Mortgage, is a valid first mortgage securing the
6
Loan and subject only to title exceptions approved by the Lender. The Title Policy shall contain
Pennsylvania Endorsements 100, 300, 710 and 1030, and 1200 and shall insure against any and
all mechanics' or artisans' liens. The Title Policy shall contain only such exceptions as are acceptable
to Lender. Tax liens for taxes due or claimed by the Commonwealth of Pennsylvania shall not be
acceptable exceptions.
(iii) Evidence of such insurance as the Lender or USDA may reasonably require,
covering any loss, damage or defect to the Real Property and any improvements or to persons or
other property in, on, or about the Real Property and any improvements during the term of thee Loan,
including hazard and liability insurance as required by Lender and the USDA. A flood plain
certification satisfactory to Lender showing that none of the Real Property or improvements are
located in a flood hazard area and, if the same is located in a flood hazard area, the proper flood
insurance is obtained. All required insurance policies must be maintained in full force until the Loan
is paid in full.
(iv) A stipulation against liens executed by the general contractor and binding
upon all subcontractors shall have been filed with the appropriate public office prior to
commencement of any demolition or construction work or appropriate waivers/releases of liens must
be furnished to Lender.
(v) Borrower or Guarantor shall supply to the Lender satisfactory evidence of all
necessary or appropriate municipal and quasi-municipal agreements and of the availability of all
utility services.
(vi) A written opinion of Borrower's counsel directed to the Lender, which shall
be satisfactory in form and substance to the Lender, which will, inter alia, certify the legitimacy of
each lien on real property of Borrower created by the Mortgage and order in which each lien will take
priority.
(vii) Borrower shall supply to the Lender proof of a "Key Person Life and
Disability" policy in the amount of $250,000.00 on Patrick K. Myers, President of Borrower, with
Lender as the sole beneficiary. The policy must be acceptable to Lender in its sole discretion.
(G) An appraisal of the Real Property acceptable to the Lender, in its sole discretion, in
an amount not less than $5,955,000.00.
(H) There have been no changes, occurrences, or development that could in Lender's sole
opinion have a material adverse effect on the business, assets, liabilities, operations, conditions, or
prospects of Borrower or Guarantor.
(I) Because the Permanent Loan will be guaranteed under the USDA Business and
Industry Loan Program in an amount not less than 80% of the Loan, Borrower, and
Guarantor so required by Lender, must abide by all requirements of the USDA before, during,
and after the funding of the Loan. Borrower acknowledges that it has received all
requirements of the USDA and understands the same.
(J) All requirements of the USDA as outlined in any agreement or commitment with
the USDA are satisfied so that the Loan will be guaranteed by the USDA. If the USDA
7
determines that any requirement is not satisfied, Borrower will ensure that the same is
satisfied immediately.
(K) Borrower shall provide to the Lender a guarantee fee in the amount of $76,224.00 to
be held by Lender while the Loan remains outstanding and which will be paid to USDA. Said fee
shall be paid out of the Loan.
(L) All other requirements as set forth in Lender's commitment letters issued and agreed
to by the parties or any combination of the parties that pertain to the Loan or any preceding financing
with the Lender for the improvements at the Real Property (i.e., the construction loans), and any
amendments thereto, including, but not limited to, any and all commitments, agreements, and letters
with the USDA.
5. Disbursement of the Loan. The Loan shall be disbursed and funding according to the terms
and conditions herein.
6. No Hazardous Substances. Borrower and Guarantor shall not store or discharge, or cause
to be stored or discharged, upon the Real Property any toxic or hazardous substances except in
accordance with applicable laws and regulations. Borrower and Guarantor shall defend, indemnify
and hold the Lender harmless from any loss, claim, damages, proceedings or liability of any type
which they may incur as a result of a violation or alleged violation of any environmental law or
regulation or as a result of any action of an environmental enforcement agency with regard to the
Real Property. Further, Borrower and Guarantor shall comply with all USDA environmental
requirements.
7. Inspection. Although the Lender and its agents may have inspected the plans and
specifications, the course of renovations and other matters pertaining to the renovations to any
improvements, such inspections are solely for the protection of the Lender as lender, and the
Borrower and Guarantor hereby confirm that the Lender has not made and will not be deemed to
make any representations or warranties as to any matters pertaining to any improvements by reason
of such inspections.
8. Limitation of Lender's Liability. The rights and benefits of this Agreement shall not inure
to the benefit of any third party. Notwithstanding anything to the contrary contained in this
Agreement or in any of the other Loan Documents, or any conduct or course of conduct by the
Borrower or the Lender or their respective affiliates, agents or employees, neither this Agreement
nor any such Loan Documents shall be construed as creating any rights, claims or causes of action
against the Lender in favor of the general contractor or any other persons furnishing services or
materials to or for the construction of any improvements, or their respective creditors or any other
person or entity other than the Borrower. Without limiting the generality of the foregoing,
disbursements or advances made directly to the general contractor, the architect or any other
contractor, subcontractor, laborer, materialman or any third parties pursuant to this Agreement shall
not be deemed a recognition by the Lender of a third part beneficiary status for any such person or
entity.
9. Indemnity. The Borrower and Guarantor, for themselves and all those claiming under or
through them, agrees to protect, indemnify, defend and hold harmless the Lender, its directors,
officers and employees, from and against any and all liability, expense, or damage of any kind or
nature and from any suits, claims or demands, including reasonable legal fees and out-of-pocket
8
expenses, arising out of this Agreement or in connection therewith. This obligation specifically shall
survive the completion of all improvements and the repayment of the Loan.
10. Defaults.
(A) The occurrence of any one or more of the following events shall, at the sole option
of the Lender, constitute an event of default hereunder:
(I) The Borrower shall fail to make any payment of principal and/or interest due
to the Lender under the Note or under any of the other Loan Documents on its due date, whether at
maturity or by acceleration or otherwise, and such failure continues for fifteen (15) days from written
notice; or
(ii) The Borrower or Guarantor shall fail to observe and perform any of the
covenants or agreements on their part to be observed and performed under this Agreement or under
any of the other Loan Documents (other than as set forth in section (I) hereof) and such failure
continues for fifteen (15) days after written notice; or
(iii) Any representation or warranty of the Borrower or Guarantor under this
Agreement or under any of the other Loan Documents shall be untrue in any material respect; or
(iv) Any event of default shall occur under any of the other Loan Documents and
shall continue for fifteen (15) days after written notice, provided, however, that in the event of any
inconsistency between the terms of this Agreement and any other Loan Document, this Agreement
shall control; or
(v) Any requirement of the USDA is not satisfied or fails to remain in effect.
(vi) Any of the improvements shall be materially injured or destroyed by fire or
other casualty for which the cost of restoration is not fully insured; or
(vii) The Borrower or Guarantor shall fail to comply with any requirements of
governmental or quasi-governmental authorities having jurisdiction over the Real Property or any
improvements within any applicable grace or cure period(s), after notice of such requirement has
been given to the Borrower or Guarantor; or
(viii) Any permit or approval necessary for the occupancy of any improvement shall
be revoked; or
(ix) Failure to perform any material term, condition or covenant of any note, loan
agreement, guaranty, mortgage or other instrument or agreement in connection with the borrowing
of money or the obtaining of advances or credit to which the Borrower or Guarantor is a party or by
which it is bound, or by which any of its properties or asset may be affected (a "Debt Instrument"),
so that, as a result of any such failure to perform the indebtedness included therein or secured or
covered thereby is declared due and payable prior to the date on which such indebtedness would
otherwise become due and payable; or (ii) any indebtedness included in any Debt Instrument or
secured or covered thereby is not paid when due, or
9
(x) The Borrower or Guarantor shall make an assignment for the benefit of
• creditors, file a petition under the Federal Bankruptcy Code or any similar law, state or federal, be
adjudicated insolvent or bankrupt, petition or apply to any tribunal for the appointment of a receiver,
or trustee or a custodian for it or a substantial part of its assets, or shall commence any proceeding
under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or if there shall have been filed
any such petition or application, or any such proceeding shall have been commenced against it,
which remains undismissed for a period of thirty (30) days or more; or the Borrower by any act or
omission shall indicate their consent to approval of or acquiescence in any such petition, application
or proceeding or the appointment of a receiver or trustee or a custodian for them or any substantial
part of any of their properties, or shall suffer any such receivership, trusteeship, or custodianship to
continue undischarged for a period of thirty (30) days or more; or
(xi) The Borrower or Guarantor shall be unable, or admit their inability, to meet
their obligations as they come due or failure of Borrower or Guarantor generally to pay their debts
as they become due.
(B) Acceleration and Remedies. Upon the occurrence and continuance of any event of
default hereunder, in addition to any other rights or remedies available to it hereunder or under any
other Loan Document or at law or in equity, the Lender may exercise any or all of the following
rights and remedies as it may deem necessary or appropriate, provided that there shall be required
a forty-eight (48) hour opportunity to cure after written notice for a default in the payment of any
installment of principal or interest:
(I) declare the outstanding principal balance of the Loan, together with all
accrued and unpaid interest thereon and all other sums due hereunder or under any of the other Loan
Documents, and all other obligations of Borrower to Lender to be immediately due and payable in
full;
(ii) cease making any further disbursements or advances hereunder;
(iii) enter upon the Real Property and take possession thereof, together with the
any improvements and all materials, supplies, tools, equipment and construction facilities and
appliances located thereon, and proceed either in the name of the Lender or in the name of the
Lender as the attomey-in-fact of the Borrower and Guarantor (which authority is coupled with an
interest and is irrevocable by the Borrower and Guarantor) as the Lender shall elect, to operate the
same at the cost and expense of the Borrower and Guarantor.
O v) set off all property of the Borrower and Guarantor now or hereafter at any time
in their possession in any capacity whatsoever including, but not limited to, any balance or share of
any deposit, trust or agency account, as to all of which property the Borrower or Guarantor hereby
grants the Lender a lien and security interest.
(C) Remedies cumulative, etc.
(I) No right or remedy conferred upon or reserved to the Lender under any, of the
Loan Documents, or with respect to any guaranty of payment of the Loan or of performance of any
of the Borrower's obligations under any of the Loan Documents or any collateral securing the
payment of the Loan under any of the Loan Documents (such other collateral, collectively, the
"Collateral"), now or hereafter existing at law or in equity or by statute or other legislative
10
enactment, is intended to be or shall be deemed exclusive of any other such right or remedy, and each
• and every such right or remedy shall be cumulative and concurrent, and shall be in addition to every
other such right or remedy, and may be pursued singly, concurrently, successively or otherwise, at
the sole discretion of the Lender, and shall not be exhausted by any one exercise thereof but may be
exercised as often as occasion therefore shall occur. No act of the Lender shall be deemed or
construed as an election to proceed under any one such right or remedy to the exclusion of any other
such right or remedy; furthermore, each such right or remedy of the Lender shall be separate, distinct
and cumulative and none shall be given effect to the exclusion of any other. The failure to exercise
or delay in exercising any such right or remedy, or the failure to insist upon strict performance of any
term of any of the Loan Documents, shall not be construed as a waiver-or release of the same, or of
any event of default thereunder, or of any obligation or liability of the Borrower thereunder. Nothing
herein, however, shall be construed to prevent the Lender from waiving any condition, obligation
or default it should do elect. In the event of such election by the Lender, any waiver, in order to be
effective, must be in writing and signed by the Lender, and any such waiver shall be strictly limited
in its effect to the condition, obligation or default specified therein and shall not extend to any
subsequent condition, obligation or default or impair any right of the Lender with respect thereto.
(ii) The recovery of any judgment by the Lender and/or the levy of execution
under any judgment shall not affect in any manner or to any extent, liens or other security interests
in any Collateral, or any rights, remedies or powers of the Lender under any of the Loan Documents
or with respect to any Collateral, but such liens and security interests, and such rights, remedies and
powers of the Lender shall continue unimpaired as before. Further, the entry of any judgment by the
Lender shal l not affect in any way the interest rate payable under any of the Loan Documents on any
amounts due to the Lender, but interest shall continue to accrue on such amounts.
(iii) Except as otherwise provided in this Agreement and the other Loan
Documents, the Borrower and Guarantor hereby waives presentment, demand, notice of nonpayment,
protest, notice of protest, or other notice of dishonor, and any and all other notices in connection with
any default in the payment of, or any enforcement of the payment of, the Loan. The Borrower and
Guarantor further waives and releases all procedural errors, defects and imperfections in any
proceedings instituted by the Lender under the terms of any of the Loan Documents or with respect
to any Collateral.
(iv) The Borrower agrees that the Lender may release, compromise, forbear with
respect to, waive, suspend, extend or renew any of the terms of the Loan Documents (and the
Borrower hereby waives any notice of any of the foregoing), and that the Loan Documents may be
amended, supplemented or modified by the Lender and the other signatory parties and that the
Lender may resort to any Collateral in such order and manner as it may think fit, without in any way
affecting the validity of any liens over or other security interest in the remainder of any such
Collateral (or the priority thereof or the position of any subordinate holder of any lien or other
security interest with respect thereto); and any action taken by the Lender pursuant to the foregoing
shall in no way be construed as a waiver or release of any right or remedy of the Lender, or of any
event of default, or of any liability or obligation of the Borrower, under any of the Loan Documents.
(D) Cost and Expenses. Following the occurrence of any event of default, the Borrowcr
shall pay upon demand all reasonable out-of-pocket costs and expenses (including all amounts paid
to attorneys, accountants, real estate brokers and other advisors employed by the Lender and/or to
any contractors for labor and materials), incurred by the Lender in the exercise of any of its rights,
remedies or powers under any of the Loan Documents or with respect to any Collateral with respect
' to such event of default, and any amount thereof not paid promptly following demand therefor
• together with interest thereon, shall become part of the Loan and shall be secured by the Mortgage
and all other Collateral.
11. Miscellaneous
(A) Time of the Essence. All dates and times for the performance of the Borrower's
obligations set forth herein shall be deemed to be of the essence of this Agreement.
(B) Publicity. The Lender may announce and publicize the source of the financing for
any improvements. In conjunction therewith, the Lender may deliver to the Real Property signs for
display indicating that it is providing financing for any improvements, subject, however, to
Borrower's reasonable approval.
(C) Seve_ rability. In the event that for any reason one or more of the provisions of this
Agreement or their application to any person or circumstance shall be held to be invalid, illegal or
unenforceable in any respect or to any extent, such provisions shall nevertheless remain valid, legal
and enforceable in all other respects and to such extent as may be permissible. In addition, any such
invalidity, illegality or unenforceability shall not affect any other provision hereof, but this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
(D) Successors and Assigns. This Agreement inures to the benefit ofand binds the parties
hereto and their respective successors, heirs, and assigns, and the words "Borrower," "Guarantor"
and "Lender" whenever occurring herein shall be deemed to include such successors, heirs, and
assigns. However, the Borrower and Guarantor shall not voluntarily, or by operation of law, assign
or transfer any interest which they may have under this Agreement or convey the Real Property or
any improvements, or any part thereof, without the prior written approval of the Lender. The Lender
may assign or otherwise transfer the Loan and any or all of the Loan Documents to any other person,
and such other person shall thereupon become vested with all of the benefits in respect thereof
granted to the Lender herein or otherwise.
(E) Notices. All notices required or desired to be given to either of the parties hereunder
shall be in writing and shall be deemed to have been sufficiently given for all purposes when
presented personally to such party or sent by certified or registered mail, return receipt requested, to
such party at its address set forth below.
Borrower/ Coliseum Entertainment Group, Inc.
Guarantor: Coliseum Real Estate Group, Inc.
Attn: Mr. Patrick K. Myers, President/CEO
518 Katrina Court
Mechanicsburg, Pennsylvania 17050
Lender: Members 1 st Federal Credit Union
Attn: Mr. Mark Ritter, AVP
5000 Louise Drive
Mechanicsburg, PA 17055
12
Such notice shall be deemed to be given when received if delivered personally or two days after the
date mailed if sent by certified or registered mail, return receipt requested. Any notice of any change
in such address shall also be given in the manner set forth above. Whenever the giving of notice is
required, the giving of such notice may be waived in writing by the party entitled to receive such
notice.
(F) Definitions; Number and Gender. Because the Borrower and Guarantor consist of
corporations, the obligations and liabilities hereunder of this corporation shall be joint and several
to the corporation, and the word "Borrower" and "Guarantor" shall mean the corporation. For
purposes of this Agreement, the singular shall be deemed to include the plural and the neuter shall
be deemed to include the masculine and feminine, as the context may require.
(G) Conflicts Between Instruments. The terms and conditions of Lender's written
Commitments dated January 9, 2006, and an amendment dated March 2, 2006, along with a letter
dated June 16, 2006, and the USDA Conditional Commitment dated February 24, 2006, and USDA
Lender's Agreement are incorporated herein by reference and made a part hereof (collectively, the
"Commitments"). All obligations and requirements of the commitment and Borrower's obligations
to perform same shall survive the execution of this Agreement and the closing of the Loan and shall
continue in full force and effect until the Loan is paid in full and shall apply with respect to all future
advances hereunder. Whenever possible, the provisions of the Commitments shall be deemed
supplemental to and not in derogation of the Note, Mortgage, this Agreement and the documents
related thereto. However, to the extent of any conflict between the terms of this Agreement and the
Commitments, this Agreement shall govern and control.
(H) Captions. The captions or headings of the paragraphs of this Agreement are for
convenience only and shall not control or affect the meaning or construction of any of the terms or
provisions of this Agreement.
(I) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania and jurisdiction over any dispute shall lie in
the Court of Common Pleas of Cumberland County, Pennsylvania.
Attest:
-Jelc? k
Name: Lc9msyu tC e137
Title:
Borrower:
Coliseum E ainment Group, Inc., a
Pennsylva corporation
By,
ck K.
Attest:
14-- C-
nLPA.
Name:
Title:
President/CEO
Guarantor:
Coliseum R Estate Group, Inc., a
Pennsylva ' corporation
By:
4 tAck K. Myers, President/CEO
13
Attest:
F \FILESWemberslstl 1470\FILES\Current`,10\10.LoanAgr
Lender:
Members st Federal C dit Union
BY:
Mark Ritter
14
EXHIBIT B
,?LJHII
Record and Return to:
Members 1' Federal Credit Union
5000 Louise Drive
Mechanicsburg, PA 17055
Attn: Mark Ritter
OPEN-END MORTGAGE
THIS IS AN OPEN-END MORTGAGE
SECURING FUTURE ADVANCES UP TO
A MAXIMUM PRINCIPAL AMOUNT OF
$59838,424.00 PLUS ACCRUED INTEREST
AND OTHER INDEBTEDNESS
AS DESCRIBED IN 42.PA. C.S.A.§8143
THIS MORTGAGE, ASSIGNMENT OF LEASES, and SECURITY AGREEMENT (this "Mortgage") dated
June 12, 2007, is made by COLISEUM REAL ESTATE GROUP, INC., a Pennsylvania corporation, whose
address is 518 Katrina Court, Mechanicsburg, Pennsylvania 17050 (the "Mortgagor") in favor of MEMBERS PT
.'EDERAL CREDIT UNION (the "Lender"), a federally chartered credit union, with an address of 5000 Louise
Drive, Mechanicsburg, Pennsylvania 17055..
A. Obligations Secured This Mortgage is executed, acknowledged and delivered by the Mortgagor to secure and
enforce the following obligations and liabilities:
1. Present and Future Obligations. ANY AND ALL PRESENT AND FUTURE OBLIGATIONS AND
INDEBTEDNESS OF EVERY KIND AND DESCRIPTION OF THE MORTGAGOR AND COLISEUM
ENTERTAINMENT GROUP, INC., A PENNSYLVANIA CORPORATION, TO THE LENDER OR
ANY AFFILIATE(as herein defined), including (i) all sums due under the Loan Documents (as herein
defined) in connection with financial accommodations in the principal amount of up to FIVE MILLION
EIGHT HUNDRED THIRTY-EIGHT THOUSAND FOUR HUNDRED TWENTY-FOUR AND 00/100
Dollars ($5,838,424.00); and (ii) any other indebtedness and obligations for the payment of money now
existing or arising in the future, direct or indirect, absolute, absolute or contingent (including those arising
by operation of law), due or to become due, contractual or tortious, liquidated or unliquidated, now or
hereafter owing by the Mortgagor or any Obligor to the Lender, or its successors or assigns, or its Affiliates,
whether or not allowed as a claim against the Mortgagor in bankruptcy, all extensions, renewals,
refinancings, modifications and replacements and all interest and related charges, and reinstated
Obligations, fees, late fees, expenses, attorneys' fees and costs or allocated fees and costs of the Lender's
in-house legal counsel, that have been or may hereafter be contracted or incurred (collectively, the
"Obligations"); and
2. Performance; Loan Documents. The performance of all of the terms, covenants, conditions, agreements,
obligations and liabilities of the Mortgagor or any Obligor under this Mortgage or any and all credit
accommodations, loan agreements, notes, guaranties and any other agreements and documents, now or
hereafter existing, creating, evidencing, guarantying, securing or relating to any or all of the Obligations,
BK1995PG s-318
together with all amendments, modifications, substitutions, renewals or extensions thereof(all of the
foregoing collectively referred to as the "Loan Documents").
The Obligations secured by this Mortgage were obtained solely for the purpose of carving on or acquiring a
business or commercial investment and not for residential, consumer or household purposes. If the Obligations
are residential, consumer or household in nature, then the Confession of Judgment in Paragraph L(3) is not
applicable. This Mortgage secures payment of any and all of the Obligations, but the maximum principal
amount of the Indebtedness secured, or which by any contingency may be secured hereby, is the amount first
stated above and if the amount of the Obligations outstanding at any time exceeds said maximum amount
secured, all payments in reduction of the Obligations shall be applied first to such excess not secured hereby and
the lien of this Mortgage shall continue until all Obligations secured hereby, including outstanding contingent
liabilities, if any, are finally and irrevocably paid in full.
B. Definitions. As used herein, the following terms shall have the following meanings:
1. Affiliate. The term "Affiliate" means any of Members 1 st Federal Credit Union's direct and indirect
affiliates and subsidiaries.
2. Obligor. The term "Obligor" means the Mortgagor and each and every other maker, endorser, guarantor
or surety of or for the Obligations, and any other party granting a security interest or other lien or
encumbrance on any of its property to secure the Obligations. If the name of the person(s) or entity(ies)
inserted in the space at the end of this paragraph is different from the name of Mortgagor identified on page
one of this Mortgage, then this Mortgage has been granted to the Lender to secure, in part, one or more
guaranties of the following person(s) or entity(ies) or the Mortgagor has granted the Mortgage to the Lender
to secure, in part, the following person's or entity's obligations to the Lender without a guaranty, and the
term "Obligor" shall also include the following person(s) or entity(ies): Coliseum Entertainment Group,
Inc., a Pennsylvania corporation.
3. Uniform Commercial Code. The term "Uniform Commercial Code" means the Uniform Commercial Code
as the same may be in effect in the Commonwealth of Pennsylvania, as amended from time to time.
C. Grant of Mortgage. To secure the payment and performance of all Obligations, the Mortgagor hereby
mortgages, grants, conveys and assigns to the Lender, and grants to the Lender a lien on and a security interest
in, all of the land, buildings, improvements, fixtures, equipment, easements, rights, appurtenances, leases, rents,
contract rights and all of the following property, whether presently in existence or to come into existence at some
future time (collectively, the "Mortgaged Property"):
1. Real Property.
410 St. Johns Church Road, Camp Hill, Hampden Township, Cumberland County, Pennsylvania (Tax parcel
Number 10-22-0529-015), as evidenced by a deed recorded in the Office of the Recorder of Deeds,
Cumberland County, Pennsylvania, at Deed Book 269, Page 1994, and 4610 East Trindle Road, Camp Hill,
Hampden Township, Cumberland County, Pennsylvania, (Tax parcel Number 10-22-0529-002), as
evidenced by a deed recorded in the Office of the Recorder of Deeds, Cumberland County, Pennsylvania,
at Deed Book 272, Page 3459 (the "Property") as more fully described in the attached Schedule A, together
with all buildings, structures and improvements of every kind erected thereon (the "Real Property");
?. Fixtures; Leases; Estates, etc. All fixtures, machinery, equipment and other articles of real, personal or
mixed property attached to, situate or installed in or upon, or used in the operation or maintenance of, the
Real Property or any plant or business situated thereon, whether or not such real, personal or mixed property
is or shall be affixed to the Real Property, and all replacements, substitutions, accretions and proceeds of
the foregoing (collectively, "Fixtures"). All leases, licenses, occupancy agreements or agreements to lease
all or any part of the Real Property and all extensions, renewals, amendments, and modifications thereof,
and any options, rights of first refusal or guarantees relating thereto (collectively, "Leases"); all rents,
9
income, receipts, revenues, security deposits, escrow accounts, reserves, issues, profits, awards and payments
of any kind payable under the Leases or otherwise arising from the Real Property (collectively, the
"Income"); all contract rights, accounts, investment property and general intangibles relating to the Real
Property or the use, occupancy, maintenance, construction, repair or operation thereof; all management
agreements, franchise agreements, utility agreements and deposits, all maps, plans, surveys and
specifications; all warranties and guaranties; all permits, licenses and approvals; all insurance policies. All
estates, rights, tenements, hereditaments, privileges, easements, and appurtenances of any kind benefitting
the Real Property; all means of access to and from the Real Property, whether public or private; all water
and mineral rights; all rights of the Mortgagor as grantor, declarant or unit owner under any condominium
master deed, declaration or by-laws or in any association applicable to the Real Property; and
3. Proceeds. All "Proceeds" of any of the above-described property, which term shall have the meaning given
to it in the Uniform Commercial Code and shall additionally include whatever is received upon the use,
lease, sale, exchange, collection, or other utilization or any disposition of any of the foregoing property,
voluntary or involuntary, whether cash or non-cash, including proceeds of insurance and condemnation
awards, rental or lease payments, accounts, chattel paper, instruments, documents, contract rights, general
intangibles, equipment and inventory.
D. Extent and Priority of Lien of Mortgage
1. Purchase Money Mortgage. If all or any part of the Obligations secured by this Mortgage were used in
whole or in part to fund the acquisition of all or any part of the Mortgaged Property, this Mortgage shall
constitute a purchase money mortgage and shall be entitled to all benefits as such under applicable laws of
the state in which the Mortgaged Property is located.
2. Open-End Mortgage. This Mortgage secures all existing and future advances and readvances under the
Loan Documents all of which shall be entitled to the lien priority and benefits of an Open-End Mortgage
under 42 Pa. C.S.A. §8143, as it may be amended from time to time, (the "Open-End Mortgage Statute").
Without limiting anything contained in any provision of this Mortgage, this Mortgage secures the
Mortgagor's obligation to repay all advances and readvances of principal under the Obligations made at
closing or thereafter and all interest, late charges, fees, and other amounts due under the Obligations or this
Mortgage, and in addition thereto: (i) all advances by the Lender to the Mortgagor or any other person to pay
costs of erection, construction, alteration, repair, restoration, and completion of any part of any
improvements situated on the Mortgaged Property; (ii) any and all advances made or costs incurred by the
Lender for the payment of taxes, assessments, maintenance charges, insurance premiums, and similar
charges with respect to the Mortgaged Property; (iii) any and all costs incurred for the protection of all or
any part of the Mortgaged Property or the lien of this Mortgage; and (iv) any and all legal fees, costs, and
other expenses incurred by the Lender by reason of any default or otherwise in connection with the
Obligations.
3. Industrial Plant Mortgage. This Mortgage is intended to be an industrial plant mortgage within the
broadest interpretation of the "industrial plant mortgage doctrine" under the laws of the Commonwealth of
Pennsylvania.
4. Changes in Mortgage. The Mortgagor and the Lender may agree to change the interest rate or the maturity
date applicable to the Obligations, release collateral for the Obligations or otherwise alter any other term of
the Loan Documents; none of such changes shall affect the priority of the lien on this Mortgage.
5. Defeasance. This Mortgage shall terminate upon indefeasible payment and performance in full of the
Obligations. Thereupon, the Lender shall release the Mortgaged Property and shall execute at the request
of the Mortgagor a release of this Mortgage and any other instrument to that effect deemed necessary or
desirable.
BK1 ?55;PUG r:;20
E. A§signment of Leases The Mortgagor hereby assigns and pledges to the Lender, as further security for the
payment of the Obligations, all existing and future Leases and Income. The Mortgagor shall, upon demand,
deliver to the Lender the original or an executed copy of each such Lease. The Mortgagor grants to the Lender
.he right to (i) enter the Mortgaged Property and collect the Income with or without taking possession of the
Mortgaged Property; (ii) with or without legal process, dispossess by usual summary proceeding any tenant
defaulting in the performance of its obligations under its lease; (iii) let the Mortgaged Property or any part
thereof, and (iv) apply the Income to the payment of any charges and expenses of the Mortgaged Property or to
the repayment of the Obligations in such order and amounts as the Lender shall determine in its sole discretion.
This assignment shall continue in effect until this Mortgage is paid in full and discharged of record; however,
so long as there shall exist no Event of Default (hereinafter defined), the Mortgagor shall have a license to
collect the Income as it becomes due, but not prior to accrual. Without the prior written consent of the Lender,
the Mortgagor shall not enter into, or amend, modify or terminate, any Lease of the Mortgaged Property. If the
Mortgagor requests the Lender's consent pursuant hereto, but if the Lender does not respond to such request
within ten (10) business days of receipt by the Lender of the request, the Lender's consent shall be deemed to
have been given. The Mortgagor shall not collect any of the rent from the Mortgaged Property in advance of
the time when the same shall become due under any lease or tenancy arrangement or, in any event, more than
one (1) month in advance. The provisions of this Paragraph are for the sole benefit of the Lender and are not
for the benefit of any other person or entity.
F. Security Agreement This Mortgage constitutes a security agreement under the Uniform Commercial Code and
shall be deemed to constitute a financing statement. The Mortgagor hereby grants to the Lender a security interest
in all equipment and fixtures and other personal property included in the Mortgaged Property, whether now owned
or hereafter acquired, and all replacements of, substitutions for, and additions to, such property, and the Proceeds
thereof. The Mortgagor shall, at the Mortgagor's own expense, execute, deliver, and file any financing or
continuation statements or other security agreements the Lender may require from time to time, to perfect, confirm,
ind maintain the lien of this Mortgage with respect to such property. Without limiting the foregoing, the
Mortgagor hereby irrevocably appoints the Lender (and any of its attorneys, officers, employees or agents) as the
Mortgagor's true and lawful attomey-in-fact, said appointment being coupled with an interest, with full power of
substitution in the name of the Mortgagor, the Lender or otherwise, for the sole use and benefit of the Lender in
its sole discretion but at the Mortgagor's expense, to exercise to the extent permitted by law, in its name or in the
name of the Mortgagor or otherwise, the powers set forth herein, whether or not any of the Obligations are due
(i) to execute, deliver or file financing statements and other agreements for or on behalf of the Mortgagor; (ii) to
notify lessees under any Lease of the Lender's interest therein and require such lessees to pay all sums due
thereunder to the Lender; and (iii) to correspond and negotiate directly with insurance carriers.
G. Representations and Covenants
1. Payment and Performance. The Mortgagor shall pay and perform promptly as and when due (i) the
Obligations in accordance with their stated terms and conditions; (ii) all obligations and liabilities under any
Permitted Encumbrances (hereinafter defined); and (iii) all of its obligations as landlord under the Leases.
2. Warranty of Title. The Mortgagor warrants to the Lender that the Mortgagor has good and marketable fee
simple absolute title to the Mortgaged Property subject only to those exceptions to title which are more
particularly described in the title report issued to the Lender and which exceptions are accepted by the
Lender in connection with this transaction (the "Permitted Encumbrances"). The Mortgagor hereby
covenants that the Mortgagor shall (i) preserve such title and the validity and priority of the lien of this
Mortgage and shall forever warrant and defend the same to the Lender against all lawful claims whatsoever
excepting only those claiming under Permitted Encumbrances; and (ii) execute, acknowledge, and deliver
all such further documents or assurances, cause to be done all such further acts as may at any time hereafter
be required by the Lender to protect fully the lien of this Mortgage and pay all costs related thereto.
3. Insurance. The Mortgagor hereby covenants to obtain and maintain at all times, throughout the term of this
Mortgage, insurance covering the Mortgaged Property, in such amounts, on such forms and written by such
BI(I ???fb1f42 1
companies, as the Lender may require from time to time, including (i) comprehensive general public liability
insurance; (ii) an "All-Risk" policy covering damage due to fire and extended hazard insurance (together
with vandalism and malicious mischief endorsements); (iii) if the Mortgaged Property is required or eligible
to be insured pursuant to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of
1968, flood insurance; and (iv) business interruption or rental loss coverage. Each insurance policy required
under this Paragraph shall be written or endorsed so as to (i) contain a standard mortgagee or lender's loss
payable endorsement, as the case may be, or its equivalent; (ii) make all losses and all returns of unearned
premiums payable directly to the Lender, without contribution; (iii) with respect to public liability coverage,
name the Lender as an additional insured, as its interest may appear; and (iv) waive all rights of set off,
counterclaim, deduction, or subrogation against the Mortgagor (so as not to interfere with the Lender's
rights). Each insurance policy required under this Paragraph shall contain a provision to the effect that such
policy shall not be canceled, altered, in any way limited in coverage, or reduced in amount unless the Lender
is notified in writing at least thirty (30) days prior to such change. At least thirty (30) days prior to the
expiration of any such policy, the Mortgagor shall furnish evidence satisfactory to the Lender that such
policy has been renewed, replaced, or is no longer required by this Paragraph, together with proof of
payment of any premiums then owing. At the request of the Lender, the Mortgagor shall deliver all original
insurance policies to the Lender. The Mortgagor shall not take out any separate or additional insurance with
respect to the Mortgaged Property which is contributing in the event of loss, unless it is properly compatible
with all of the requirements of this Paragraph.
4. Taxes and Other Charges. The Mortgagor shall prepare and timely file all federal, state, and local tax returns
required to be filed by the Mortgagor and promptly pay and discharge all taxes, assessments, water and sewer
rents, and other governmental charges or claims of any kind imposed upon the Mortgagor, the Mortgaged
Property, or on any of the Mortgagor's other property before the same shall become in default or become a lien
upon such property except for those taxes, assessments, and other governmental charges then being contested
in good faith by the Mortgagor by appropriate proceedings and for which the Mortgagor has maintained
adequate reserves in the sole judgment of the Lender. The Mortgagor shall submit to the Lender, upon request,
an affidavit signed by the Mortgagor certifying that all federal, state, and local tax returns have been filed to
date and all real property taxes, assessments, and other governmental charges with respect to the Mortgagor's
properties have been paid to date.
5. Escrows. The Mortgagor shall, if requested by the Lender, pay to the Lender at the time of each installment
of principal and interest due under any of the Loan Documents, one twelfth (1/12) of the annual taxes and
assessments levied or assessed against the Mortgaged Property and any premium for applicable insurance, as
estimated by the Lender, from time to time, unless the Mortgagor demonstrates to the Lender that it is paying
such taxes, assessment or insurance to a holder of a prior Permitted Encumbrance. Such payment shall be held
by the Lender to be used by the Lender in payment of such taxes, assessments or insurance premium. If such
escrow funds are not sufficient to pay such taxes and assessments, as the same become payable, the Mortgagor
shall pay to the Lender, upon request, such additional amounts as the Lender shall estimate to be sufficient to
make up any such deficiency. No amount paid to the Lender hereunder shall be deemed to be trust funds but
may be commingled with general funds of the Lender, and no interest shall be payable thereon. If the
Mortgagor is not required to pay such tax escrows pursuant to this section, the Mortgagor shall provide to the
Lender, not later than the last date such payment is due and payable without interest or penalty, official
receipted tax bills, canceled checks, or other evidence satisfactory to the Lender evidencing that such taxes and
assessments have been paid in a timely manner.
6. Transfer of Title. Without the prior written consent of the Lender in each instance, which consent may be
given or withheld in the I,ender's sole discretion, the Mortgagor shall not voluntarily or involuntarily cause
or permit, any transfer of the Mortgaged Property or any portion thereof, whether voluntary, involuntary, by
operation of law, or otherwise, nor shall the Mortgagor enter into any agreement or transaction to transfer,
or accomplish in form or substance a transfer, of the Mortgaged Property. A "transfer" of the Mortgaged
Property includes (i) the direct or indirect sale, transfer or conveyance of the Mortgaged Property or any
SKi?JZ)'b?.3?2
portion thereof or interest therein; (ii) the execution of an installment sale contract or similar instrument
affecting all or a portion of the Mortgaged Property; (iii) the transfer (whether in one transaction or a series
of transactions) of stock, partnership or other ownership interests constituting a controlling interest in the
Mortgagor (if the Mortgagor is a partnership, joint venture, limited liability company or corporation); and
(iv) a lease or leases which, separately or in the aggregate, cover cumulatively more than twenty percent
(20%) of the usable space on the Mortgaged Property.
7. No Liens; Removal of Fixtures. At no time during the term of this Mortgage shall the Mortgagor create or
suffer to exist any mortgage, lien, security interest, encumbrance, attachment, levy, distraint, or other judicial
process or burden of any kind on the Mortgaged Property or any part thereof, whether superior or inferior to
the lien ofthis Mortgage, without the prior written consent of the Lender, which consent may be given or
withheld in the Lender's sole discretion. The Mortgagor shall not remove or suffer to be removed from the
Mortgaged Property any fixtures presently or in the future located on the Mortgaged Property (unless such
fixtures have been replaced with similar fixtures of equal or greater utility and value).
Maintenance and Repair; Compliance with Laws. The Mortgaged Property shall, at the Mortgagor's own
cost and expense, be kept and maintained in good repair, working order, and condition, and in compliance with
all applicable laws, ordinances, codes, rules and regulations (collectively, "Legal Requirements") of any
federal, state or local governmental entity or authority having jurisdiction (collectively "Governmental
Authorities"). The Mortgagor agrees to comply, and to cause its tenants to comply with all Legal
Requirements made or promulgated by any Governmental Authority now or hereafter applicable to the
Mortgaged Property. The Mortgagor shall from time to time make, or cause to be made, all necessary and
proper repairs and replacements required under Legal Requirements, the Leases, or otherwise required to keep
the Mortgaged Property in good condition and the Mortgagor shall abstain from and shall not permit the
commission of waste on or about the Mortgaged Property. The Mortgagor shall not remove, demolish,
materially alter, or discontinue the use of the Mortgaged Property, or permit the Mortgaged Property to become
vacant, deserted, or unguarded. The Lender shall have the right, but not the obligation, to enter upon and
inspect the Mortgaged Property at any reasonable hour.
9. Damage, Destruction and Condemnation. If all or any part of the Mortgaged Property shall be partially or
totally damaged or destroyed, or if title to or the use of the whole or any part of the Mortgaged Property shall
be taken or condemned by a competent authority for any public use or purpose, then (i) there shall be no
abatement or reduction in the amounts payable by the Mortgagor under the Loan Documents, and the
Mortgagor shall continue to be obligated to make such payments; (ii) the Mortgagor shall immediately give
notice thereof to the Lender in accordance with the terms of this Mortgage; (iii) the Mortgagor hereby
authorizes and directs any affected insurance company or condemning authority to make payment of such
proceeds directly to the Lender as its interest appears; and (iv) the Mortgagor hereby authorizes and empowers
the Lender to settle, adjust or compromise, any claims for loss, damage, destruction to or condemnation of the
Mortgaged Property. The Mortgagor shall pay all costs of collection of insurance proceeds payable on account
of such damage or destruction. The Mortgagor shall, at its sole cost and expense, diligently prosecute any
condemnation proceeding and shall consult with the Lender, its attorneys, and experts and cooperate with it
in the defense of any such proceedings. The Lender shall have the right, in any condemnation proceedings, to
do or refrain from doing whatever it deems necessary or convenient. The Mortgagor shall have no claim
against the insurance proceeds or condemnation proceeds, or be entitled to any portion thereof, and all rights
to insurance or condemnation proceeds are hereby assigned to the Lender to the extent of the Obligations as
remain unpaid. The Lender shall have the option, in its sole discretion, of paying or applying all or any part
of the insurance proceeds or condemnation proceeds payable to the Lender hereunder to (i) reduction of the
Obligations; (ii) restoration, replacement and rebuilding of the Mortgaged Property or (iii) payment to the
Mortgagor.
10. Required Notices. The Mortgagor shall immediately notify the Lender of (i) the receipt of notice from any
Governmental Authority relating to the Mortgaged Property or alleging a violation of Legal Requirements;
4 - -, r , 1)
' (ii) a substantial change in the occupancy or use of all or any part of the Mortgaged Property; (iii) the receipt
of any notice from the holder of any Permitted Encumbrance; (iv) the commencement of any litigation
affecting or potentially affecting in a material and adverse way the financial condition of the Mortgagor or
the value of the Mortgaged Property; or (v) the discovery, discharge or release for which the Mortgagor is
or may be responsible under Applicable Environmental Laws (hereinafter defined).
11. Financial Statements. Mortgagor shall so provide (a) if such Mortgagor is an individual, at least once during
each period of twelve (12) consecutive months, a personal financial statement of such Mortgagor for a year
ending not more than sixty (60) days earlier, in reasonable detail and certified by such Mortgagor to be
complete and accurate and (b) if such Mortgagor is not an individual, (i) promptly copies of all annual reports,
proxy statements and similar information distributed to shareholders, partners or other owners and of all filings
with the Securities and Exchange Commission and the Pension Benefit Guaranty Corporation, (ii) within sixty
(60) days after the end of each of its first three fiscal quarters, consolidating and consolidated statements of
income and cash flows for the quarter, for the corresponding quarter in the previous fiscal year and for the
period from the end of the previous fiscal year, with a consolidating and consolidated balance sheet as of the
quarter end, (iii) within ninety (90) days after the end of each fiscal year, consolidating and consolidated
statements of such Mortgagor's income and cash flows and its consolidating and consolidated balance sheet
as of the end of such fiscal year, setting forth comparative figures for the preceding fiscal year and to be ?
audited ? reviewed ? compiled by an independent certified public accountant acceptable to the Mortgagee,
all such statements to be certified by such Mortgagor's chief financial officer or partner to be correct and in
accordance with such Mortgagor's records and to present fairly the results of such Mortgagor's operations and
cash flows and its financial position at year end in conformity with generally accepted accounting principles,
and (iv) with each statement of income, a certificate executed by such Mortgagor's chief executive and chief
financial officers or managing partners (A) stating that the signers of the certificate have reviewed this
Mortgage and the operations and condition (financial or other) of such Mortgagor and any subsidiaries during
the relevant period and (B) stating that no Event of Default occurred during the period, or if an Event of Default
did occur, describing its nature, the date(s) of its occurrence or period of existence and what action such
Mortgagor has taken with respect thereto. If no box is checked above, Mortgagor shall supply financial reports
immediately upon the Mortgagee's request in the form and number of copies and at the times satisfactory to
the Mortgagee. The Mortgagor shall keep and maintain complete and accurate books and records and shall
permit representatives or agents of the Lender to examine and audit the Mortgagor's (and its parent's and
subsidiaries', if applicable) books, records and financial information and to inspect the Mortgagor's facilities
and properties. Promptly upon request of the Lender the Mortgagor shall supply, or cause to be supplied, any
additional information respecting the operations, financial or otherwise, of the Mortgagor, each Obligor and
shall use its best efforts to cause each lessee of the Mortgaged Property or any material portion thereof as the
Lender may from time to time reasonably request. The Mortgagor shal l prepare and timely file al l federal, state
and local tax returns required to be filed by the Mortgagor and shall submit to the Lender a copy of its federal
tax return immediately after filing same with the Internal Revenue Service. The Mortgagor shall furnish to the
Lender, at its request, certified rent rolls and leases, as applicable, with respect to the Mortgaged Property
within ninety (90) days after the end of each fiscal year.
H. Environmental Representations and Covenants.
1. Applicable Environmental Laws.
a. The term "Applicable Environmental Laws" means (i) all Legal Requirements of any Governmental
Authority pertaining to the preservation or enhancement of the quality of the environment or regulating
or restricting the use, transfer, storage, disposal, release, discharge, production or remediation of any
substance or material deemed by such Governmental Authority to be hazardous to the environment;
(ii) any and all laws, regulations, and executive orders, whether federal, state or local, pertaining to
environmental matters, as the same may now exist or hereafter exist or be amended or supplemented
from time to time. Any terms mentioned in this Mortgage which are defined in any Applicable
BK 24
i9 %jIU
Environmental Law shall have the meanings ascribed to such terms in said laws; provided, however, that
if any of such laws are amended so as to broaden any term defined therein, such broader meaning shall
apply subsequent to the effective date of such amendment.
b. The Mortgagor represents and warrants that neither the Mortgagor nor the Mortgaged Property are in
violation of any Applicable Environmental Law, or subject to any existing, pending, or threatened
investigation or inquiry by any Governmental Authority pertaining to an alleged violation of any
Applicable Environmental Law.
2. Covenants. The Mortgagor shall not cause or permit the Mortgaged Property to be in violation of, or do
anything which would subject the Mortgagor or the Mortgaged Property to any remedial obligations under,
any Applicable Environmental Law, and shall promptly notify the Lender in writing of any existing, pending,
or threatened investigation or inquiry by any Governmental Authority in connection with any Applicable
Environmental Law:
a. The Mortgagor shall immediately take all steps necessary to determine whether hazardous materials have
been disposed of or otherwise released or discharged on, from or affecting the Mortgaged Property;
b. The Mortgagor will not install, suffer, or permit in the Mortgaged Property any substance deemed
hazardous by federal or state regulations. If any such materials are found to be present in the Mortgaged
Property, the Mortgagor agrees to remove the same promptly upon discovery at its sole cost and expense;
c. The Mortgagor shall duly file or cause to be duly filed with all Governmental Authorities having
jurisdiction such reports or information returns as may be required or appropriate under all Applicable
Environmental Laws;
d. If any lien or judgment shall be filed with respect to the Mortgaged Property arising from a violation of
Applicable Environmental Laws, then the Mortgagor shall, within thirty (30) days from the date that the
Mortgagor is given notice of such lien or judgment (or within such shorter period of time if any
Governmental Authority has commenced steps to have the Mortgaged Property sold), pay the claim and
remove the lien from the Mortgaged Property;
e. If there shall occur any releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of
hazardous materials on, from or affecting the Mortgaged Property, or otherwise caused or permitted by the
Mortgagor in violation of Applicable Environmental Laws, the Mortgagor shall promptly clean it up in
accordance with the provisions of all Applicable Environmental Laws and to the satisfaction of the Lender;
and
3. Right to Inspect and Cure. The Lender shall have the right to conduct or have conducted by its agents or
contractors such environmental inspections, audits, and testing as the Lender shall deem necessary or
advisable from time to time at the sole cost and expense of the Mortgagor. The cost of such tests shall be
added to the Obligations and shall be secured by this Mortgage. If the Mortgagor fails to comply with any
Applicable Environmental Law, then the Lender may, at its sole discretion, in addition to any of its other
remedies under this Mortgage, cause the Mortgaged Property to be in compliance with such laws and the
cost of such compliance shall be added to the sums secured by this Mortgage and shall bear interest at the
Default Rate (hereafter defined).
4. Environmental Easement. The Mortgagor hereby grants and conveys to the Lender an irrevocable easement
to enter on and upon the Mortgaged Property at any time and from time to time for the purpose of making such
audit tests, inspections, and examinations, including subsurface exploration and testing, as the Lender deems
necessary, convenient, or proper to determine whether the ownership, use, and operation of the Mortgaged
Property and the conduct of the activities engaged in thereon are in compliance with federal, state, and local
environmental laws, rules, and regulations. The Lender, or its designated agents, shall have the right to inspect
and copy all of the Mortgagor's records relating to environmental matters and to enter all buildings or facilities
of the Mortgagor for such purpose. In confirmation of the Lender's right to inspect and copy all of the
Mortgagor's records relating to environmental matters and to secure the Mortgagor's obligations to the Lender
in connection with the Loan Documents, and under this Environmental Inspection Easement, the Mortgagor
hereby grant to the Lender a continuing security interest in and to all of the Mortgagor's existing and future
records with respect to environmental matters, whether or not located at the Mortgaged Property or elsewhere,
whether or not in the possession of the Mortgagor or some third party (including any federal, state, or local
agency or instrumentality), and whether or not written, photographic, or computerized, and the proceeds and
products thereof. The Lender, or its designated agent, may interview any or all of the Mortgagor's agents and
employees regarding environmental matters, including any consultants or experts retained by the Mortgagor,
all of whom are directed to discuss environmental issues fully and openly with the Lender or its designated
agent and to provide such information -as may be requested. All of the costs and expenses incurred by the
Lender with respect to the audits, tests, inspections, and examinations which the Lender may conduct, including
the fees of the engineers, laboratories, and contractors, shall be paid by the Mortgagor. The Lender may, but
shall not be required to, advance such costs and expenses on behalf of the Mortgagor. All sums so advanced
shall bear interest at the highest rate provided with respect to the Loan Documents.
a. The easement granted hereby shall exist and continue until such time as all sums owed by the Mortgagor
to the Lender in connection with the Loan Documents or otherwise have been repaid in full and the
mortgage granted to the Lender to secure the Loan Documents has been released of record. A release
of this Mortgage shall evidence a termination of the easement.
b. The Mortgagor acknowledges that no adequate remedy at law exists for a violation of the easement
granted hereby by equitable writ or decree, including temporary and preliminary injunctive relief. In the
event the Lender is required to enforce it hereunder the Mortgagor shall pay all of the Lender's costs and
expenses in connection therewith, including all attorney's fees incurred by the Lender.
c. This easement shall be assignable and shall be considered assigned to whomever holds the indebtedness
secured by the mortgage.
d. The exercise of the rights granted hereunder shall not constitute the Lender a "mortgagee in possession"
with respect to the Mortgaged Property.
e. This easement is intended to be and shall be construed as an interest in the Mortgaged Property and as
an easement in gross. It is not intended to be a personal right of the Lender or a mere license.
1. Indemnification. The Mortgagor hereby agrees to and does hereby indemnify, protect, defend, and hold harmless
the Lender, and any entity which "controls" the Lender, within the meaning of Section 15 of the Securities Act of
1933, as amended, any member, officer, director, official, agent, employee, or attorney of the Lender, and their
respective heirs, successors, and assigns (collectively the "Indemnified Parties"), from and against any and all
losses, damages, expenses, or liabilities of any kind or nature, and from any suits, claims, or demands, including
counsel fees incurred in investigating or defending such claim, suffered by any of them and caused by, relating to,
arising out of, resulting from, or in any way connected with the Loan Documents or the transactions contemplated
therein (unless determined by a final judgment of a court of competent jurisdiction to have been caused solely by
the gross negligence or willful misconduct of the Indemnified Parties). In case any action shall be brought against
the Lender or any other Indemnified Party in respect to which indemnity may be sought against the Mortgagor, the
Lender or such other Indemnified Party shall promptly notify the Mortgagor; provided however, that the failure
to so notify the Mortgagor shall not relieve the Mortgagor of any liability it may have under these indemnification
provisions or from any liability which it may otherwise have to the Lender or such other Indemnified Party.
Promptly following such notification, the Mortgagor shall assume the defense thereof, including the employment
of counsel selected by the Mortgagor and satisfactory to the Lender or such other Indemnified Party, and the
payment of all costs and expenses relating thereto. The Lender shall have the right, at its sole option, but at the
Mortgagor's sole cost and expense, to employ separate counsel in any such action and to participate in the defense
thereof. The Mortgagor shall not be liable for any settlement of any such action unless the Mortgagor consents,
which consent shall be reasonably given, but if settled with the Mortgagor's consent, or if there be a final judgment
BK ?s, 9 5iu? 2 6
for the claimant in any such action, the Mortgagor agrees to indemnify and hold harmless the Lender from and
against any loss or liability by reason of such settlement or judgment. The provisions of this Section shall survive
the repayment of the Obligations.
No Release; No Waiver. Any extension of the time for payment, or any modification of the amortization of the
sums secured by this Mortgage or any release of any Obligor or all or any part of the Mortgaged Property,
granted by the Lender to the Mortgagor or any other Obligor shall not operate to release the liability of the
Mortgagor, any other Obligor under the terms of the Loan Documents or this Mortgage or any other collateral
for the Obligations. Any forbearance by the Lender in exercising any right or remedy hereunder or otherwise
afforded by applicable law shall not be a waiver of, or preclude the exercise of, any right or remedy.
K. Events of Default. The occurrence of any one of the following shall constitute an event of default ("Event of
Default") under this Mortgage:
Breach. A breach by the Mortgagor or any Obligor of any term, obligation, provision, covenant,
representation or warranty, arising under (i) this Mortgage or any other Loan Document, including failure
to pay when due (whether at stated maturity, by acceleration or otherwise) the Obligations or any portion
thereof or there occurs any event which after notice or lapse of time, or both, will permit such acceleration;
(ii) any present or future agreement with or in favor of the Lender or any Affiliate, including the failure to
make any payment when due (whether at stated maturity, by acceleration or otherwise) or any portion thereof
or there occurs any event which after notice or lapse of time, or both, will permit such acceleration; or
(iii) any present or future agreement or instrument for borrowed money or other financial accommodations
with any person or entity;
2. Bankruptcy; Insolvency. (i) The Mortgagor or any Obligor commences any bankruptcy, reorganization,
debt arrangement, or other case or proceeding under the United States Bankruptcy Code or under any similar
foreign, federal, state, or local statute, or any dissolution or liquidation proceeding, or makes a general
assignment for the benefit of creditors, or takes any action for the purpose of effecting any of the foregoing;
(ii) any bankruptcy, reorganization, debt arrangement, or other case or proceeding under the United States
Bankruptcy Code or under any similar foreign, federal, state or local statute, or any dissolution or liquidation
proceeding, is involuntarily commenced against or in respect of the Mortgagor or any Obligor and such
involuntary petition is not dismissed within 30 days or an order for relief is entered in any such proceeding;
(iii) the appointment, or the filing of a petition seeking the appointment, of a custodian, receiver, trustee, or
liquidator for the Mortgagor or any other Obligor or any of its property, or the taking of possession of any
part of the property of the Mortgagor or any other Obligor at the instance of any governmental authority; or
(iv) the Mortgagor or any other Obligor becomes insolvent (however defined), is generally not paying its
debts as they become due, or has suspended transaction of its usual business;
3. Death; Reorganization. The death or incompetence (if an individual) or the dissolution, merger,
consolidation, or reorganization of the Mortgagor or any other Obligor;
4. Material Misstatement. Any statement, representation or warranty made in or pursuant to this Mortgage
or any other Loan Document or to induce the Lender to accept this Mortgage or to enter into or accept any
other Loan Document shall prove to be untrue or misleading in any material respect or, if upon the date of
execution of this Mortgage, there shall have been any materially adverse change in any of the facts disclosed
in any financial statement, representation or warranty that was not disclosed in writing to the Lender at or
prior to the time of execution hereof,
5. Additional Debt; Granting of Security Interest. The Mortgagor or any Obligor (i) incurs or assumes
additional debt other than debt incurred for normal consumer purposes, debt to the Lender or an Affiliate
or trade debt in the ordinary course of its business; or (ii) creates, permits or grants any lien or security
interest in any of its property on which the Lender has a lien or security interest;
6K19195?G`Y327
6.. Entry of Judgment. The filing, entry, or issuance of any judgment, execution, garnishment, attachment,
distraint, or lien against the Mortgagor or any Obligor or its property; the entry of any order enjoining or
restraining the Mortgagor or any Obligor or restraining or seizing any property of the Mortgagor or any
Obligor or the Mortgagor or any Obligor is convected of a felony;
7. Transfer of Assets. The Mortgagor transfers all or any part of the Mortgaged Property or the Mortgagor
or any other Obligor transfers or sells all or substantially all of its assets, without the prior written consent
of the Lender;
8. Loan Documents. Any Loan Document ceases to be in full force and effect or the validity or enforceability
thereof is contested by any Obligor or any representative thereof, or
9. Pension Plan; Change in Management. Any pension plan of any Mortgagor or Obligor fails to comply
with applicable law or has vested unfunded liabilities that, in the opinion of the Lender, might have a
material adverse effect on any Mortgagor's or Obligor's ability to repay its debts; there occurs any change
in the management of any Mortgagor or Obligor which is, in the opinion of the Lender materially adverse
to its interest and which remains uncorrected for thirty (30) days after the Lender notifies the Mortgagor or
the respective Obligor of its opinion.
L. Remedies. Upon and following the occurrence of an Event of Default:
Advances. The Lender shall have the right, at its election, but not the obligation, to make any payment or
expenditure and to take any action which the Mortgagor should have made or taken or which the Lender deems
advisable to protect the security of this Mortgage or the Mortgaged Property. Such action shall be without
prejudice to any of the Lender's rights or remedies available under this Mortgage or the other Loan Documents
or otherwise at law or in equity. All such sums, as well as costs and expenses, advanced by the Lender shall
be immediately due from the Mortgagor to the Lender, shall become part of the Obligations secured by this
Mortgage and the other Loan Documents, and shall bear interest (including after any judgment obtained on
account of any of the Obligations) at the applicable rate provided in the Loan Documents in effect after maturity
or default (the "Default Rate") until repayment in full to the Lender. The Mortgagor agrees that all of the
Obligations and other obligations of the Mortgagor to the Lender under the Loan Documents, including
obligations to reimburse the Lender for advances, shall survive the entry of any judgment lien on account of
the Obligations or any judgment in mortgage foreclosure, whether such obligations arise before or after the
entry of judgment.
2. Other Remedies. The Lender shall have the right, at its election, to take any one or more of the following
actions: (i) to declare all the Obligations secured by this Mortgage to be immediately due and payable (except
that upon the occurrence of any Event of Default described in Paragraph K(2), such Obligations shall
automatically be due and payable without notice or demand); (ii) to obtain judgment for the Obligations
together with interest on such judgment at the Default Rate until payment in full is received by the Lender and
to obtain execution upon the Mortgaged Property or other property of the Mortgagor on account of such
judgment; (iii) to obtain possession of the Mortgaged Property and (with or without obtaining possession) to
enforce the Leases, collect the Income and rent the Mortgaged Property, either in its name or in the name of
the owner, and apply the Income and rents, at the Lender's option, to the payment of any charges and expenses
of the Mortgaged Property in such order and amounts as the Lender in its sole discretion may determine, being
accountable only for such rents and profits collected by it while in possession; (iv) to foreclose this Mortgage;
(v) to obtain appointment of a receiver of the Mortgaged Property without the necessity of proving either
inadequacy of the security or insolvency of the Mort gagor or any other Obligor, and the Mortgagor and each
such person waive such proof and consent to the appointment of such receiver; (vi) to apply on account of the
Obligations, in any order and amounts as the Lender may determine and whether or not a deficiency action shall
have been instituted, any unexpended money still retained by the Lender that was paid by the Mortgagor to the
Lender for the payment of, or as security for the payment of, taxes, assessments, municipal or governmental
rates, charges, impositions, liens, water or sewer rents, or insurance premiums, if any, or in order to secure the
„ BK 19 9` F1i` -??8
'performance of some act by the Mortgagor; (vii) to collect from the Mortgagor monthly, in advance, so long
as the Mortgagor remains in possession of all or any part of the Mortgaged Property, the fair and reasonable
market value for the Mortgagor's use and occupation of the Mortgaged Property; or (viii) to exercise all rights
of a secured party under the Uniform Commercial Code. If the Obligations, as evidenced by a single note or
other written instrument shall exceed the amount secured by this Mortgage, or as evidenced by a combination
of same that singularly or in any part collectively may be less than said secured amount but combined exceed
said secured amount, the Lender, in any foreclosure hereof, shall have the right to sue and collect the excess
in the same action as commenced for the foreclosure hereof, and recover a money judgement for said excess
with all the rights attendant thereto, including the issuance of an execution to the Sheriff for collection thereof,
and Mortgagor and any Obligor hereby waives any defense based upon a claim that in doing so, the Lender is
splitting its cause of action if it seeks to foreclose this Mortgage for part of the Obligations and recover at law
for another part.
3. Confession of Judgment for Possession. THE FOLLOWING PARAGRAPH SETS FORTH A
WARRANT OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE
MORTGAGOR. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT
AGAINST THE MORTGAGOR. THE MORTGAGOR HEREBY KNOWINGLY.
INTELLIGENTLY AND VOLUNTARILY. AND ON ADVICE OF SEPARATE COUNSEL OF THE
MORTGAGOR. UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE MORTGAGOR
HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER
THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE
COMMONWEALTH OF PENNSYLVANIA.
FOR THE PURPOSE OF OBTAINING POSSESSION OF THE MORTGAGED PROPERTY UPON
THE OCCURRENCE OF ANY EVENT OF DEFAULT, MORTGAGOR HEREBY AUTHORIZES
AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD, IN THE
COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR
MORTGAGOR, AS WELL AS FOR THE PERSONS CLAIMING UNDER, BY, OR THROUGH
MORTGAGOR, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST MORTGAGOR AND
ALL PERSONS CLAIMING UNDER, BY, OR THROUGH MORTGAGOR, IN FAVOR OF THE
LENDER FOR THE RECOVERY BY THE LENDER OF POSSESSION OF THE MORTGAGED
PROPERTY, FOR WHICH THIS MORTGAGE (OR A COPY THEREOF VERIFIED BY
AFFIDAVIT) SHALL BE A SUFFICIENT WARRANT; WHEREUPON A WRIT OF POSSESSION
OF THE MORTGAGED PROPERTY MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR
WRIT OR PROCEEDING WHATSOEVER AND WITHOUT STAY OF EXECUTION,
MORTGAGOR HEREBY RELEASING AND AGREEING TO RELEASE THE LENDER AND ANY
SUCH ATTORNEY FROM ALL PROCEDURAL ERRORS AND DEFECTS WHATSOEVER IN
ENTERING SUCH ACTION OR JUDGMENT OR IN CAUSING SUCH WRIT OR PROCESS TO
BE ISSUED OR IN ANY PROCEEDING THEREON OR CONCERNING THE SAME, PROVIDED
THAT THE LENDER SHALL HAVE FILED IN SUCH ACTION AN AFFIDAVIT MADE ON THE
LENDER'S BEHALF SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY
OF SUCH JUDGMENT ACCORDING TO THE TERMS OF THIS INSTRUMENT, OF WHICH
FACTS SUCH AFFIDAVIT SHALL BE PRIMA FACIE EVIDENCE. IT IS HEREBY EXPRESSLY
AGREED THAT IF FOR ANY REASON AFTER ANY SUCH ACTION HAS BEEN COMMENCED,
THE SAME SHALL BE DISCONTINUED, MARKED SATISFIED OF RECORD, OR BE
TERMINATED, OR POSSESSION OF THE MORTGAGED PROPERTY REMAIN IN OR BE
RESTORED TO MORTGAGOR OR ANYONE CLAIMING UNDER, BY, OR THROUGH
MORTGAGOR, THE LENDER MAY, WHENEVER AND AS OFTEN AS THE LENDER SHALL
HAVE THE RIGHT TO TAKE POSSESSION AGAIN OF THE MORTGAGED PROPERTY, BRING
ONE OR MORE FURTHER ACTIONS IN THE MANNER HEREINBEFORE SET FORTH TO
RECOVER POSSESSION OF THE MORTGAGED PROPERTY AND TO CONFESS JUDGMENT
12 Bk 1 995FFG4, '-?` ?9
' THEREIN AS HEREINABOVE PROVIDED, AND THE AUTHORITY AND POWER ABOVE
GIVEN TO ANY SUCH ATTORNEY SHALL EXTEND TO ALL SUCH FURTHER ACTIONS IN
EJECTMENT AND CONFESSION OF JUDGMENT THEREIN AS HEREINABOVE PROVIDED
WHETHER BEFORE OR AFTER AN ACTION OF MORTGAGE FORECLOSURE IS BROUGHT
OR OTHER PROCEEDINGS IN EXECUTION ARE INSTITUTED UPON THIS MORTGAGE OR
ANY INSTRUMENT THEN EVIDENCING ANY OF THE OBLIGATIONS, AND AFTER
JUDGMENT THEREON OR THEREIN AND AFTER A JUDICIAL SALE OF THE MORTGAGED
PROPERTY.
4. Uniform Commercial Code Disposition. With respect to that portion of the Mortgaged Property governed
by the Uniform Commercial Code, the Lender shall have the right, upon five (5) calendar days' prior written
notice to the Mortgagor (or one (1) day notice by telephone with respect- to Mortgaged Property that is
perishable or threatens to decline rapidly in value), which the Mortgagor hereby acknowledges to be sufficient,
commercially reasonable and proper, to sell, lease or otherwise dispose of any or all of the Mortgaged Property
at any time and from time to time at public or private sale, with or without advertisement thereof, and apply
the proceeds of any such sale first to the Lender's expenses in preparing the Mortgaged Property for sale
(including reasonable attorneys' fees) and second to the complete satisfaction of the Obligations. The
Mortgagor waives the benefit of any marshaling doctrine with respect to the Lender's exercise of its rights
hereunder. The Mortgagor grants a royalty-free license to the Lender for all patents, service marks, trademarks,
trade names, copyrights, computer programs and other intellectual property and proprietary rights to permit the
Lender to exercise all rights granted to the Lender under this Paragraph. The Lender or anyone else may be
the purchaser of any or all of the Mortgaged Property so sold and thereafter hold such Mortgaged Property
absolutely, free from any claim or right of whatsoever kind, including any equity of redemption of the
Mortgagor, any such notice, right or equity of redemption being hereby expressly waived and released.
5. No Marshaling. In the event of a foreclosure or other judicial sale of the Mortgaged Property, the
Mortgaged Property may be sold in one or several parcels in any order the Lender, in its sole discretion, may
determine and without regard to principles of marshaling.
6. Remedies Cumulative; No Waiver. The rights, powers and remedies hereunder and under the other Loan
Documents and cumulative and concurrent, and are not exclusive of any other rights, powers or remedies
available to the Lender. No failure or delay on the part of the Lender in the exercise of any right, power or
remedy shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or
remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy.
7. Continuing Enforcement of the Loan Documents. If, after receipt of any payment of all or any part of
the Obligations, the Lender is compelled or agrees, for settlement purposes, to surrender such payment to
any person or entity for any reason, then this Mortgage and the other Loan Documents shall continue in full
force and effect or be reinstated, as the case may be. The provisions of this Paragraph shall survive the
termination of this Mortgage and the other Loan Documents and shall be and remain effective
notwithstanding the payment of the Obligations, the release of any security interest, lien or encumbrance
securing the Obligations or any other action which the Lender may have taken in reliance upon its receipt
of such payment.
8. Right of Setoff. The Lender shall have the right to set off against the Obligations any property held in a
deposit or other account with the Lender or any of its Affiliates or otherwise owing by the Lender or any of
its Affiliates in any capacity to Mortgagor or any Obligor. Such set-off shall be deemed to have been
exercised immediately at the time the Lender or such Affiliate elect to do so.
Miscellaneous
1. Notices. Any demand or notice hereunder or under any applicable law pertaining hereto shall be in writing
and duly given if delivered to Mortgagor (at its address on the Lender's records) or to the Lender (at the
address on page one and separately to the Lender officer responsible for Mortgagor's relationship with the
13 SKI 995PG'? 3) 30
Lender). Such notice or demand shall be deemed sufficiently given for all purposes when delivered (i) by
personal delivery and shall be deemed effective when delivered, or (ii) by mail or courier and shall be
deemed effective three (3) business days after deposit in an official depository maintained by the United
States Post Office for the collection of mail or one (1) business day after delivery to a nationally recognized
overnight courier service (e.g., Federal Express). For any notice under 42 Pa C.S.A. §8143 being delivered
by personally delivery, such personally delivered notice must be delivered to the Lender at: Members 1 st
Federal Credit Union, 5000 Louise Drive, Mechanicsburg, Pennsylvania 17055. Notice by e-mail is not
valid notice under this or any other agreement between Mortgagor and the Lender.
2. Costs, Expenses and Professional Fees. Whether or not the transactions contemplated by this Mortgage
or any of the other Loan Documents are fully consummated, the Mortgagor shall promptly pay (or reimburse,
as the Lender may elect) all costs and expenses which the Lender has incurred or-may hereafter incur in
connection with the negotiation, preparation, reproduction, interpretation, perfection, protection of the
Mortgaged Property, administration and enforcement of this Mortgage or any of the other Loan Documents,
the collection of all amounts due under the Loan Documents, and all amendments, modifications, consents
or waivers, if any, to the Loan Documents. Such costs and expenses shall include, without limitation, the
fees and disbursements of counsel to the Lender (including the Lender's in-house counsel), the costs of
appraisals, searches of public records, costs of filing and recording documents with public offices, internal
or external audit or examination fees and costs, stamp, excise and other taxes, the fees of the Lender's
accountants, consultants or other professionals, costs and expenses from any actual or attempted sale of all
or any part of the Mortgaged Property, and for the care and preparation for sale of the Mortgaged Property
(including insurance costs) and defending and asserting the rights and claims of the Lender in respect
thereof, by litigation or otherwise. The Mortgagor's reimbursement obligations under this Paragraph shall
survive any termination of the Loan Documents. Costs, expenses and fees shall accrue interest at the
highest default rate set forth in the respective Loan Documents evidencing the Obligations from the date of
demand until payment is actually received by the Lender. Each such cost, expense and fees and any interest
thereon shall constitute part of the Obligations and be secured by this Mortgage and may be added to the
judgment in any suit brought by the Lender against Mortgagor on this Mortgage.
3. Governing Law and Jurisdiction. This Mortgage has been delivered to and accepted by the Lender and
will be deemed to be made in the Commonwealth of Pennsylvania. Except as otherwise provided under
federal law, this Mortgage will be interpreted in accordance with the laws of the Commonwealth of
Pennsylvania excluding its conflict of laws rules. MORTGAGOR HEREBY IRREVOCABLY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN
THE COMMONWEALTH OF PENNSYLVANIA IN A COUNTY OR JUDICIAL DISTRICT
WHERE THE LENDER MAINTAINS A BRANCH AND CONSENTS THAT THE LENDER MAY
EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT MORTGAGOR'S ADDRESS
SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING
CONTAINED IN THIS MORTGAGE WILL PREVENT THE LENDER FROM BRINGING ANY
ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS
AGAINST MORTGAGOR INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY
PROPERTY OF MORTGAGOR WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN
OR DOMESTIC JURISDICTION. Mortgagor acknowledges and agrees that the venue provided above
is the most convenient forum for both the Lender and Mortgagor. Mortgagor waives any objection to venue
and any objection based on a more convenient forum in any action instituted under this Mortgage.
4. Integration; Amendment. This Mortgage and the other Loan Documents constitute the sole agreement of
the parties with respect to the subject matter hereof and thereof and supersede all oral negotiations and prior
writings with respect to the subject matter hereof and thereof. No amendment of this Mortgage, and no
waiver of any one or more of the provisions hereof shall be effective unless set forth in writing and signed
by the parties hereto. No course of dealing or other conduct, no oral agreement or representation made by
the Lender or usage of trade shall operate as a waiver of any right or remedy of the Lender. No single, partial
14 6K 1995PG433
or delayed exercise by the Lender of any right or remedy shall preclude full and timely exercise by the
Lender at any time of any right or remedy of the Lender without notice or demand, at the Lender's sole
option.
5. Successors and Assigns. This Mortgage (i) shall be binding upon the Mortgagor and the Lender and, where
applicable, their respective heirs, executors, administrators, successors and permitted assigns; and (ii) shall
inure to the benefit of the Mortgagor and the Lender and, where applicable, their respective heirs, executors,
administrators, successors and permitted assigns; provided, however, that the Mortgagor may not assign its
rights or obligations hereunder or any interest herein without the prior written consent of the Lender, and
any such assignment or attempted assignment by the Mortgagor shall be void and of no effect with respect
to the Lender. The Lender may from time to time sell or assign, in whole or in part, or grant participation
in some or all of the LoanlDocuments or the obligations evidenced thereby. The Mortgagor authorizes the
Lender to provide information concerning the Mortgagor to any prospective purchaser, assignee or
participant.
6. Severability and Consistency. The illegality, unenforceability or inconsistency of any provision of this
Mortgage or any instrument or agreement required hereunder shall not in any way affect or impair the
legality, enforceability or consistency of the remaining provisions of this Mortgage or any instrument or
agreement required hereunder. The Loan Documents are intended to be consistent. However, in the event
of any inconsistencies among any of the Loan Documents, such inconsistency shall not affect the validity
or enforceability of any Loan Document. The Mortgagor agrees that in the event of any inconsistency or
ambiguity in any of the Loan Documents, the Loan Documents shall not be construed against any one party
but shall be interpreted consistent with the Lender's policies and procedures. In this Mortgage, the singular
includes the plural and the plural the singular; references to statutes and rules are to be construed as
including all statutory provisions consolidating, amending or replacing the statute referred to; the word "or"
shall be deemed to include "and/or", the words "including", "includes" and "include" shall be deemed to
be followed by the words "without limitation"; and references to sections or exhibits are to those of this
Agreement unless otherwise indicated.
7. Joint and Several Liability. In the event that the Mortgagor consists of more than one person or entity, the
obligations hereunder (including performance obligations) of each such person or entity shall be joint and
several and the word "Mortgagor" means each of them, any of them or all of them.
8. Judicial Proceeding; Waivers.
THE MORTGAGOR AND THE LENDER ACKNOWLEDGE AND AGREE THAT (i) ANY SUIT,
ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR
INSTITUTED BY THE LENDER OR THE MORTGAGOR OR ANY SUCCESSOR OR ASSIGN
OF THE LENDER OR THE MORTGAGOR, ON OR WITH RESPECT TO THIS MORTGAGE,
ANY OTHER LOAN DOCUMENT, THE MORTGAGED PROPERTY OR THE DEALINGS OF
THE PARTIES WITH RESPECT HERETO, OR THERETO, SHALL BE TRIED ONLY BY A
COURT AND NOT BY A JURY AND EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY;
(ii) EACH WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES; AND (iii) THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF
THIS MORTGAGE AND THE LENDER WOULD NOT EXTEND CREDIT TO THE
MORTGAGOR IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF
THIS MORTGAGE.
15 BK i 995FG? 302
IN WITNESS WHEREOF, the Mortgagor, intending to be legally bound hereby, has executed and sealed this
Mortgage on the day and year first above written.
COLISEUM REAL ESTATE GROUP, INC., a
Pennsylvania cgioration
By: _
Nam
Title
Rauick K. Myers
President/CEO
Address: 518 Katrina Court
Mechanicsburg, PA 17050
Attest:
Print Name: Lomgy- A/ty?l?S
CORPORATE ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA, COUNTY OF c,urn&r&z1;V, SS.:
On the 12th day of June, in the year 2007, before me, the undersigned, a Notary Public in and for said
Commonwealth, personally appeared PATRICK K. MYERS, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed
the instrument.
GQ-W0NVffALTH NotarW? NNSVLVANIA 90-al? cc
UWraLWoke,Notary PtA* yyy ??`Notary Public
Upper Mw Twp., Curtberland Comity
My Carirr iesion Eon Jan. 25, 2011
Member, Pennsylvania Association of Notaries
16 BX,199-5 PGiJ3 3
F: WUXS\Memban I K 1147("FU.ESkAmMveM91k\Exh&KCobmm)
Exhibit "A"
Tract No. 1: ALL that certain parcel of land, situate in Hampden Township, Cumberland County,
Pennsylvania, bounded and described in accordance with a survey prepared by Hoover Engineering Services,
Inc., dated January 21, 2002, File No. 202005, as follows:
BEGINNING at a point located along the Western Legal Right-of-Way Line of St. John's Church Road (S.R.
2029), at land now or late of Atlantic Refining and Marketing Corp.; thence along St. John's Church Road,
South 40 degrees 43 minutes 04 seconds East, a distance of 245.72 feet to a point; thence along lands now
or late of James Yaple, South 49 degrees 16 minutes 56 seconds West, a distance of 3 51.05 feet to a steel pin;
thence along lands now or late of Realm, on a curve, curving to the left, having a radius of 320.00 feet and
an arc length of 366.58 feet (a chord bearing of North 65 degrees 10 minutes 58 seconds West, and a chord
distance of 346.86 feet) to a steel pin; thence along lands now or late of Barone Enterprises and Frontier
Partners L.P., North 60 degrees 13 minutes 56 seconds East, a distance of 219.29 feet to a point; thence along
lands previously referenced North 30 degrees 13 minutes 04 seconds West, a distance of 49.34 feet to a point;
thence along lands now or late of Atlantic Refining and Marketing Corp., North 65 degrees 08 minutes 56
seconds East, a distance of 281.12 feet to a point, the place of Beginning.
CONTAINING 108,319.51 square feet or 2.4867 acres.
BEING the same premises which Cecelia R. Spera, Trustee of Trust Under Item IV of the Will of Joseph J.
Spera f/b/o Katheryne T. Spera and Alex Grass, Co-Partners, by their Deed dated June 1, 2005, and recorded
in Cumberland County, Pennsylvania Deed Book 269, Page 1994, granted and conveyed unto Coliseum Real
Estate Group, Inc.
Tact No. 2: ALL that certain tract of land with improvements thereon erected, situate in Hampden Township,
Cumberland County, Pennsylvania, bounded and described in accordance with Plan #500532 prepared by D.P.
Raffensberger Associates, Engineers & Surveyors dated November 30, 1977, as follows:
BEGINNING at a point on the southern right-of-way line of Trindle Road at line of lands now or late of
Sibarco Corporation and lands now or late of Spera Industrial Co.; thence along said line of lands now or late
of Sibarco Corporation and lands now or late of Spera Industrial Co., South twenty-nine degrees forty-four
minutes East a distance of two hundred fee (South 29 ° 44' East 2001) to a point; thence continuing along lands
now or late of Spera Industrial Co., South sixty degrees forty-three minutes West, a distance of one hundred
twenty-two and twenty-nine hundredths feet (South 60 ° 43' West 122.29') to a point in line of lands now or
late of Roy E. Prescott et ux; thence along lands now or late of Roy E. Prescott et ux., North twenty-six
degrees fourteen minutes thirty-eight seconds West, a distance of two hundred nine and fifty hundredths feet
(North 26° 14' 38" West 209.50') to a point on th said southern right-of-way line of Trindle Road; thence
along the said southern right-of-way line of Trindle Road, North sixty-five degrees thirty-eight minutes East,
a distance of one hundred ten feet (North 65 ° 38' East 110) to a point, the place of BEGINNING.
BEING the same premises which Elie-Joe Khouri, by Deed dated January 3, 2006, and recorded in
Cumberland County, Pennsylvania Deed Book 272, Page 3459, granted and conveyed unto Coliseum Real
Estate Group, Inc.
-1-
BK 1995PG- 334
EXHIBIT C
CONTINUING GUARANTY
GUARANTOR: Coliseum Real Estate Group, Inc., a Pennsylvania corporation
518 Katrina Court, Mechanicsburg, PA 17050
BORROWER: Coliseum Entertainment Group, Inc., a Pennsylvania corporation
518 Katrina Court. Mechanicsburg, PA 17050
LENDER: Members Ist Federal Credit Union, a federally chartered credit union
5000 Louise Drive, Mechanicsburg, PA 17055.
1. Guaranty.
(a) Guarantor, intending to be legally bound, hereby unconditionally guarantees the full and payment and performance of any and all of Borrower's Obligations (as defined below) tot the Lender rwhen
t
due, whether at stated maturity, by acceleration or otherwise. As used in this Guaranty, the term
"Obligations" shall mean any and all obligations, indebtedness and other liabilities of Borrower to the
Lender now or hereafter existing, of every kind and nature and all accrued and unpaid interest thereon and
all Expenses (as defined below) including without limitation, whether such obligations, indebtedness and
other liabilities (i) are direct, contingent, liquidated, unliquidated, secured, unsecured, matured or unmatured;
(ii) are pursuant to a guaranty or surety in favor of the Lender; (iii) were originally contracted with the
Lender or with another party (including obligations under a guaranty or surety originally in favor of such
other party); (iv) are contracted by Borrower alone or jointly with one or more other parties; (v) are or are
not evidenced by a writing; (vi) are renewed, replaced, modified or extended; and (vii) are periodically
extinguished and subsequently reincurred or reduced and thereafter increased. Guarantor will pay or perform
his or her obligations under this Guaranty upon demand. This Guaranty is and is intended to be a continuing
guaranty of payment (not collection) of the Obligations (irrespective of the aggregate amount thereof and
whether or not the Obligations from time to time exceeds the amount of this Guaranty, if limited),
independent of, in addition and without modification to, and does not impair or in any way affect, any other
guaranty, indorsement, or other agreement in connection with the Obligations, or in connection with any
indebtedness or liability to the Lender or collateral held by the Lender therefor or with respect thereto,
whether or not furnished by Guarantor. Guarantor understands that the Lender can bring an action under
this Guaranty without being required to exhaust other remedies or demand payment first from other parties.
(b) Guarantor acknowledges the receipt of valuable consideration for this Guaranty and
acknowledges that the Lender is relying on this Guaranty in making a financial accommodation to Borrower,
whether a commitment to lend, extension, modification or replacement of, or forbearance with respect to,
any Obligation, cancellation of another guaranty, purchase of Borrower's assets, or other valuable
consideration.
'. Continuing, Absolute, Unconditional. This Guaranty is irrevocable, absolute, continuing,
unconditional and general without any limitation. This Guaranty is unlimited in amount. Further,
Guarantor hereby unconditionally guarantees the prompt and full pa. ment and performance fo
borrow is present and future, joint, and/or several, direct and indirect, absolute and contingent,
express and implied, indebtedness, liabilities, obligations and covenants to Lender, including any
amendments, extensions, modifications, renewals, or substitutions hereto (cumulatively
"Obligations"). Guarantor must pay all amounts due under the Note, ii hen the Lender makes written
demand upon Guarantor.
3. Guarantor's Waivers & Authorizations. (a) Guarantor's obligations shall not be released, impaired
or affected in any way including by any of the following, all of which Guarantor hereby waives (i) any
bankruptcy, reorganization or insolvency under any law of Borrower or that of any other party, or by any
action of a trustee in any such proceeding; (ii) any new agreements or obligations of Borrower or any other
party with the Lender; (iii) any adjustment, compromise or release of any Obligations of Borrower, by the
Lender or any other party; the existence or nonexistence or order of any filings, exchanges, releases,
impairment or sale of. or failure to perfect or continue the perfection of a security interest in any collateral
for the Obligations, (iv) any failure of Guarantor to receive notice of any intended disposition of such
collateral; (v) any fictitiousness, incorrectness, invalidity or unenforceability, for any reason, of any
instrument or other agreement which may evidence any Obligation; (vi) any composition, extension, stay
or other statutory relief granted to Borrower including, without limitation, the expiration of the period of any
statute of limitations with respect to any lawsuit or other legal proceeding against Borrower or any person
in any way related to the Obligations or a part thereof or any collateral therefor; (vii) any change in form of
organization, name, membership or ownership of Borrower or Guarantor; (viii) any refusal or failure of the
Lender or any other person prior to the date hereof or hereafter to grant any additional loan or other credit
accommodation to Borrower or the Lender's or any other party's receipt of notice of such refusal or failure;
(ix) any setoff, defense or counterclaim of Borrower with respect to the obligations or otherwise arising,
either directly or indirectly, in regard to the Obligations; or (x) any other circumstance that might otherwise
constitute a legal or equitable defense to Guarantor's obligations under this Guaranty.
(b) Guarantor waives acceptance, assent and all rights of notice or demand including without
limitation (i) notice of acceptance of this Guaranty, of Borrower's default or nonpayment of any Obligation,
and of changes in Borrower's financial condition; (ii) presentment, protest, notice of protest and demand for
payment; (iii) notice that any Obligations has been incurred or of the reliance by the Lender upon this
Guaranty; and (iv) any other notice, demand or condition to which Guarantor might otherwise be entitled
prior to the Lender's reliance on or enforcement of this Guaranty. Guarantor further authorizes the Lender,
without notice, demand or additional reservation of rights against Guarantor and without affecting
Guarantor's obligations hereunder, from time to time: (i) to renew, refinance, modify, subordinate, extend,
increase, accelerate, or otherwise change the time for payment of, the terms of or the interest on the
Obligations or any part thereof;(ii) to accept and hold collateral from any party for the payment of the any
or all of the Obligations, and to exchange, enforce or refrain from enforcing, or release any or all of such
collateral; (iii) to accept any indorsement or guaranty of any or all of the Obligations or any negotiable
instrument or other writing intended to create an accord and satisfaction with respect to any or all of the
Obligations; (iv) to release, replace or modify the obligation of any indorser or guarantor, or any party who
has given any collateral for any of all of the Obligations, or any other party in any way obligated to pay any
or all of the Obligations, and to enforce or refrain from enforcing, or compromise or modify, the terms of
any obligation of any such indorser, guarantor or party; (v) to dispose of any and all collateral securing the
Obligations in any manner as the Lender, in its sole discretion, may deem appropriate, and to direct the order
and the enforcement of any and all indorsements and guaranties relating to the Obligations in the Lender's
sole discretion: and (vi) to determine the manner, amount and time of application of payments and credits,
if am to be made on all or any part of the Obligations including, without limitation, if this Guaranty is
limited in amount, to make any, such application to Obligations, if any, in excess of the amount of this
Guarant,,.
(c) Notwithstanding any other provision in this Guaranty. Guarantor irrevocably waives, without
notice. any right he or she may have at law or in equity (including without limitation any law subrogating
Guarantor to the rights of the Lender) to seek contribution, indemnification or any other form of
reimbursement from Borrower or any other obligor or guarantor of the Obligations for any disbursement
made under this Guaranty or otherwise.
4. Termination. This Guaranty shall remain in full force and effect as to each Guarantor until actual
receipt by the Lender officer responsible for Borrower's relationship with the Lender of written notice of
Guarantor's intent to terminate (or Guarantor's death or incapacity) plus the lapse of a reasonable time for
the Lender to act on such notice (the "Receipt of Notice'); provided, however, this Guaranty shall remain
in full force and effect thereafter until all Obligations outstanding, or contracted or committed for (whether
or not outstanding), before such Receipt of Notice by the Lender, and any extensions, renewals or
replacements thereof (whether made before or after such Receipt of Notice), together with interest accruing
thereon after such Receipt of Notice, shall be finally and irrevocably paid in full. Discontinuance of this
Guaranty as to one Guarantor shall not operate as a discontinuance hereof as to any other Guarantor.
Payment of all of the Obligations from time to time shall not operate as a discontinuance of this Guaranty,
unless a Receipt of Notice as provided above has been received by the Lender. Guarantor agrees that, to the
extent that Borrower makes a payment or payments to the Lender on the Obligations, or the Lender receives
any proceeds of collateral to be applied to the Obligations, which payment or payments or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set aside or otherwise are required
to be repaid to Borrower, its estate, trustee, receiver or any other party, including, without limitation, under
any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such
repayment, the obligation or part thereof which has been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction
occurred, notwithstanding any contrary action which may have been taken by the Lender in reliance upon
such payment or payments. As of the date any payment or proceeds of collateral are returned, the statute
of limitations shall start anew with respect to any action or proceeding by the Lender against Guarantor
under this Guaranty. Likewise, any acknowledgment, reaffirmation or payment, by Borrower or any third
party, of any portion of the Obligations, shall be deemed to be made as agent for the Guarantor, strictly for
the purposes of tolling the running of (and/or preventing the operation of) the applicable statute of
limitations with respect to any action or proceeding by the Lender against Guarantor under this Guaranty.
5. Expenses. Guarantor agrees to reimburse the Lender on demand for all the Lender's expenses,
damages and losses of any kind or nature, including without limitation costs of collection and actual
attorneys' fees and disbursements whether for internal or external counsel incurred by the Lender in
attempting to enforce this Guaranty, collect any of the Obligations including any workout or bankruptcy
proceedings or other legal proceedings or appeal, realize on any collateral, defense of any action under the
prior paragraph, or for any other purpose related to the Obligations (collectively, "Expenses"). Expenses
will accrue interest at the highest default rate in any instrument evidencing the Obligations until payment
is actually received by the Lender.
6. Financial and Other Information. Guarantor shall provide annual personal financial statements
and any other financial information requested by the Lender in form satisfactory to the Lender. Guarantor
represents that his or her assets are not subject to any liens, encumbrances or contingent liabilities except
as fully disclosed to the Lender in such statements. Guarantor warrants that all information Guarantor gives
to the Lender at any time is correct, complete and not misleading. Guarantor resides at the above address
and %Nill notifj the Lender officer named above immediately in %kriting upon an) change in address.
Guarantor understands this Guaranty and has satisfied himself or herself as to its meaning and consequences
and ackno%%ledges that it has made its own arrangements for keeping informed of changes or potential
changes affecting the Borrower including the Borrower's financial condition.
7. Security; Right of Setoff. As further security for payment of the Obligations. Expenses and any
other obligations of Guarantor to the Lender, Guarantor hereby grants to the Lender a security interest in all
money. securities and other property of Guarantor in the actual or constructive possession or control of the
Lender or its affiliates including %N ithout limitation all deposits and other accounts w,%ing at any time by the
Lender or any of its affiliates in any capacity to Guarantor in any capacity (collectively, "Property" ). The
Lender shall have the right to set off Guarantor's Property against any of Guarantor's obligations to the
Lender. Such set-off shall be deemed to have been exercised immediately at the time the Lender or such
affiliate elect to do so. The Lender shall also have all of the rights and remedies of a secured party under
the Uniform Commercial Code, as the same may be in effect in the Commonwealth of Pennsylvania, as
amended from time to time, as of the date of this Guaranty in addition to those under this Guaranty and other
applicable law and agreements.
8. No Transfer of Assets. Guarantor shall not transfer, reinvest or otherwise dispose of his or her
assets in a manner or to an extent that would or might impair Guarantor's ability to perform his or her
obligations under this Guaranty.
9. Nonwaiver by the Lender; Miscellaneous. This Guaranty is intended by Guarantor to be the final,
complete and exclusive expression of the agreement between Guarantor and the Lender. This Guaranty may
be assigned by the Lender, shall inure to the benefit of the Lender and its successors and assigns, and shall be
binding upon Guarantor and his or her legal representative, successors and assigns and any participation may
be granted by the Lender herein in connection with the assignment or granting of a participation by the Lender
in the Obligations or any part thereof. All rights and remedies of the Lender are cumulative, and no such right
or remedy shall be exclusive of any other right or remedy. This Guaranty does not supersede any other
guaranty or security granted to the Lender by Guarantor or others (except as to Guarantor's Waiver of
Subrogation rights above). No single, partial or delayed exercise by the Lender of any right or remedy shall
preclude exercise by the Lender at any time at its sole option of the same or any other right or remedy of the
Lender without notice. Guarantor expressly disclaims any reliance on any course of dealing or usage of trade
or oral representation of the Lender including, without limitation, representations to make loans to Borrower
or enter into any other agreement with Borrower or Guarantor. No course of dealing or other conduct, no oral
agreement or representation made by the Lender or usage of trade shall operate as a waiver of any right or
remedy of the Lender. No waiver or amendment of any right or remedy of the Lender or release by the Lender
shall be effective unless made specifically in writing by the Lender. Each provision of this Guaranty shall be
interpreted as consistent with existing law and shall be deemed amended to the extent necessary to comply with
any conflicting law. If any provision nevertheless is held invalid, the other provisions shall remain in effect.
Guarantor agrees that in any legal proceeding, a copy of this Guaranty kept in the Lender's course of business
may be admitted into evidence as an original. Captions are solely for convenience and not part of the substance
of this Guaranty. If this Guaranty is limited pursuant to Paragraph 2 hereof, until the Obligations are
indefeasibly paid in full, the Guaranteed Amount shall not be reduced in any manner whatsoever by any
amounts which the Lender may realize before or after maturity of the Obligations (by acceleration, demand or
otherwise), as a result of payments made by or on behalf of Borrower or by or on behalf of any other person
or entity other than Guarantor primarily or secondarily liable for the Obligations or any part thereof, or
otherwise credited to Borrower or such person or entity, or as a result of the exercise of the Lender's rights with
respect to any collateral for the Obligations or any part thereof. Payments made to the Lender by Guarantor
(other than, directly or indirectly. from collateral or other persons or entities liable for any portion of the
Obligations) after maturity of the Obligations, by acceleration or otherwise, shall reduce the Guaranteed
Amount.
10. Joint and Several. It' there is more than one Guarantor, each Guarantor jointly and severally
guarantees the payment and performance in full of all obligations under this Guaranty and the term
"Guarantor" means each as well as all otthem. Guarantor also agrees that the Lender need not seek payment
from any source other than the undersigned Guarantor. This Guaranty is a primary obligation. Guarantor's
obligations hereunder are separate and independent of Borrox\er's, and a separate action may be brought
against Guarantor whether or not action is brought or joined against or with Borrower or any other party.
11. Notices. Any demand or notice hereunder or under any applicable law pertaining hereto shall be
in writing and duly given if delivered to Guarantor (at its address on the Lender's records) or to the Lender
(at the address on page one and separately to the Lender officer responsible for Borrower's relationship with
the Lender). Such notice or demand shall be deemed sufficiently given for all purposes when delivered (i)
by personal delivery and shall be deemed effective when delivered, or (ii) by mail or courier and shall be
deemed effective three (3) business days after deposit in an official depository maintained by the United
States Post Office for the collection of mail or one (1) business day after delivery to a nationally recognized
overnight courier service (e.g., Federal Express). Notice by e-mail is not valid notice under this or any other
agreement between. Guarantor and the Lender.
12. Governing Law and Jurisdiction. This Guaranty has been delivered to and accepted by the Lender
and will be deemed to be made in the Commonwealth of Pennsylvania. Except as otherwise provided under
federal law, this Guaranty will be interpreted in accordance with the laws of the Commonwealth of
Pennsylvania excluding its conflict of laws rules. GUARANTOR HEREBY IRREVOCABLY CONSENTS
TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE
COMMONWEALTH OF PENNSYLVANIA IN A COUNTY OR JUDICIAL DISTRICT WHERE
THE LENDER MAINTAINS A BRANCH AND CONSENTS THAT THE LENDER MAY EFFECT
ANY SERVICE OF PROCESS IN THE MANNER AND AT GUARANTOR'S ADDRESS SET
FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING
CONTAINED IN THIS GUARANTY WILL PREVENT THE LENDER FROM BRINGING ANY
ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS
AGAINST GUARANTOR INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY
PROPERTY OF GUARANTOR WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN
OR DOMESTIC JURISDICTION. Guarantor acknowledges and agrees that the venue provided above is
the most convenient forum for both the Lender and Guarantor. Guarantor waives any objection to venue and
any objection based on a more convenient forum in any action instituted under this Guaranty.
13. Waiver of Jury Trial. GUARANTOR AND THE LENDER HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY
GUARANTOR AND THE LENDER MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW
OR IN EQUITY, IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS
RELATED HERETO. GUARANTOR REPRESENTS AND WARRANTS THAT NO
REPRESENTATIVE OR AGENT OF THE LENDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE LENDER WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THIS JURY TRIAL WAIVER. GUARANTOR ACKNOWLEDGES THAT THE
LENDER HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER
THINGS, THE PROVISIONS OF THIS SECTION.
14. Power to Confess Judgment. GUARANTOR HEREBY EMPOWERS ANY ATTORNEY OF
ANY COURT OF RECORD TO APPEAR FOR GUARANTOR AND, WITH OR WITHOUT
COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINST
G t..'ARANTOR IN FAVOR OF THE LENDER OR ANY HOLDER HEREOF FOR ALL AINIOUNTS
DUE IIEREUNDER, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S
COMMISSION OF THE GREATER OFTEN PERCENT (10%) OF SUCH AMOUNTS OR SI,000
ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO THIS GUARANTY OR
A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. GUARANTOR
HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND
ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY
OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED.
INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT THE DEFAULT RATE SET
FORTH IN ANY OF THE DOCUMENTS EVIDENCING THE OBLIGATIONS OF BORROWER.
NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT, OR A
SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR
NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE,
OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS THE LENDER SHALL ELECT UNTIL
SUCH TIME AS THE LENDER SHALL HAVE RECEIVED PAYMENT IN FULL OF ALL
AMOUNTS DUE HEREUNDER.
15. Guarantor acknowledges that it has read and understands all the provisions of this Guaranty,
including the Confession of Judgment, Governing Law, Jurisdiction and Waiver of Jury Trial, and has
been advised by counsel as necessary or appropriate.
Tax lD # c;X0 - ag S 988 7
GUARANTOR:
Coliseum Re Estate Group, Inc., a
Pennsylvania orporation
By: C "
trick K. Myers, President/CEO
NOTICE: FOR PURPOSES OF THIS AGREEMENT Dated: June 12, 2007
"OBLIGATIONS" IS NOT LIMITED TO
PRESENTLY EXISTING INDEBTEDNESS,
LIABILITIES AND OBLIGATIONS.
ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA )
: SS.
COUNTY OF CUMBERLAND )
On the 12`h day of June, in the year 2007, before me, the undersigned, a Notary Public in and for said
Commomvealth, personally appeared Patrick K. Myers, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he,she.'they executed the same in his/her; their capacity(ies). and that by his, her1heir
signature(s) on the instrument, the individual(s), or the person upon behalf of N?hich the individual(s) acted.
executed the instrument.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Laura L Hoke, Notary Public
Upper Allen Twp., Cumberland County
My Conartission Expires Jan. 25, 2011
Member, Pennsylvania Association of Notaries
t/i
Notary Public
III f %%I,rae?.?•i!14-11FII.15Cunr 1 10 W61,-11 amn Cony('Kl 61
DISCLOSURE FOR CONFESSION OF JUDGMENT
Undersigned: Coliseum Real Estate Group, Inc., a Pennsylvania corporation (the "Undersigned")
518 Katrina Court
Mechanicsburg, PA 17050
Credit Union: Members 1st Federal Credit Union (the "Lender"), a federally chartered credit union
5000 Louise Drive
Mechanicsburg, Pennsylvania 17055.
The Undersigned has executed, and/or is executing, on or about the date hereof, the following documents, instruments or other
agreements (collectively, the "Document(s)"), under which the Undersigned is obligated to repay monies to the Lender:
A Mortgage and Guaranty of the obligations of Coliseum Entertainment Group, Inc. (Borrower), to the Lender
dated June 12, 2007.
A. The Undersigned understands that the Document(s) contain a Confession of Judgment provision that would permit the
Lender to enter judgment against it in court, after a default on the Document(s), without advance notice to it and without
offering it an opportunity to defend against the entry of judgment. In executing the Document(s), being fully aware of its
rights to advance notice and to a hearing to contest the validity of any judgment or other claims that the Lender may assert
against it under the Document(s), the Undersigned is knowingly, intelligently and voluntarily waiving these rights, including
any right to advance notice of the entry of judgment, and the Undersigned expressly agrees and consents to the Lender's
entering judgment against it by confession as provided for in the Confession of Judgment provision.
B. The Undersigned further understands that in addition to giving the Lender the right to enter judgment against it without
advance notice or a hearing, the Confession of Judgment provision in the Document(s) also contain language that would
permit the Lender, after entry of judgment, to execute on the judgment by foreclosing upon, attaching, levying on, taking
possession of or otherwise seizing its property, in full or partial payment of the judgment. In executing the Document(s),
being fully aware of its rights to advance notice and a hearing after judgment is entered and before execution on the j udgment,
the Undersigned is knowingly, intelligently and voluntarily waiving these rights, and the Undersigned expressly agrees and
consents to the Lender's executing on the judgment, in any manner permitted by applicable state and federal law.
C. The Undersigned certifies that a representative of the Lender specifically called the Confession of Judgment provisions
in the Document(s) to the attention of the Undersigned, and/or that the Undersigned was represented by legal counsel in
connection with the above documents.
D. The Undersigned hereby certifies: that its annual income exceeds $10,000; that all references to "the Undersigned" above
refer to all persons and entities signing below; and that the Undersigned received a copy hereof at the time of signing.
Witness:
Print Name: u- ?,sd(6
COLISEUM ROL ESTATE GROUP, INC., a Pennsylvania
corporation
By: - l j
Name: Patrick K. Myers
Title: President/CEO
DATED: June 12, 2007
F TILES'Members I sr l 14701FILESTurrenr'.10 10 DisdConfessGwr (CREG)
EXHIBIT "D"
ORIGINAL
Prepared By: Heritage Land Tram[er
1576 McDaoid Dr
West Crater PA 19300
610429-9200
<•?ssai
Return To: Heritage Lased Transfer
1576 McDamW Dr
West Charter PA 19300
Presaisee: 4610 Triadk Rd.
Camp Hiu, PA
FolWparcel # #10-22-0529-002
BL13852
L
J
DEED
THIS INDENTURE made this 3rd day of January, 2006
BETWEEN
Elio-Joe KhosA an adult individual
hereinafter called the Crantor(s)
AND
Coliseum Real Estate Group, Inc.
hereinafter called the Grantee(s),
-? ,LAI
C'Z AN 9
WITNESSETH that the said Grantor(s) in consideration of the sum of $365,000.00
Three Hundred Sixty Five Thousand dollars and Zero cents
7
lawfully money of the United States of America unto them well and truly paid by the said Grantoe(s), at or before
the sealing and delivery themof, the reoeipt whereof a hemby admowle ftK has gaoled, bargained and sold,
released and confirmed, and by these presents does grant, bargain and sell, mleae and oo?icm unto the said
Grantee(s), its successors and assigns,
8009 272 FACE3459
ALL THAT CERTAIN tract of land with imps thereon erected, sitwto in Hampden Township,
Cumberland County, Peamaylvania, bounded ad described in accordance with Plan #500532 prepared by D.P.
Raiiensbarger Associates, Engineers dt &wicyors dated November 30,1977, as follows:
BEGINNING at a point on the southern right-cf way line of Trindle Road at line of land: now or late of S'barco
Corporation and lands now or late of Spew Iadustrial Co., thence along said line of lands raw Of late of Sibarco
Corporation and lands now or late of Spero Ira trial Co. south twenty-Trine degrees 8ady4m mmutes east a
distance of two hundred feet (south 290 44' east 200') to a point; thence rousting along lands now or Iate of
Spera Industrial Co. south sixty degrees forty-three minutes west, a distance of one I -, I I twenty-two and
twenty-nine hundredths Beet (south 60° 43' west 122.29') to a point in lime of lands now or late of Roy E. Prescott
et ux.; thence along lands now or late of Roy E. Prescott et ux. North twenty-six degree 6 r I P, n mindo thirty-
eight seconds wet, a distance of two hundred nine and 11Ay humdmildis he (north 260 14'3r wart, 209.50') to a
point on the said souathern righter way live of Trindle Road, them along the said anthem right-of-way line of
Trindle Road north abdy five degrees thirty-eight mimes east, a distance of one hundred ten feet (north 650
38'eM 110') to a point, the place of BEGINNING.
CONTAINING approximately 0.54 acres.
BEING PARCEL 410-22-0529-002.
BEING THE SAME PREMISES WHICH Frontier Partners, IF, a Peunsylvmia Limited Partnership, granted sad
conveyed unto Elie-Joe Khouri an adult individual on 8808002 recorded in Cumberland County on 8/268002 in
Deed Boric 253 page 1476.
6099094901 S?
M w. ago '
r ?_ Q
BOOK 272 PACE3460 --
S ol
?j s+ r ?W N
ai3 ~???ii ?r+
NN MN?ppp NN Od ?-+p pppp NN
O O O O O d? 6 O O? O ?
TOGETHER with all and singohttr the building, Wvovemema, ways, streets, alley, driveways, passages,
waters, water-0ourees, rights, liberties, privileges, tiered itsmeNs and appurtenances, whoever unto the hereby
granted premises belonging, or m any wise appertauft and the reverdoos and remainders, rants, issues and
profits thereof, and all the eatate, right, title, inmost, property, claim and demand whoever of Grantor(s), as
well at haw as in eVity, of in and to the same.
TO HAVE AND TO HOLD the lot or piece of graand deantW above the messuage or tenement thereon
erected hereditaments and prraaises hereby grayed, or mpintained and intended so to be, with the apportawwas,
unto Grantee(s), its sucoeseas and assigns, to and for the only prWa use and behod of Grantee(s), their heirs and
assigns, forever.
AND GranWs), their heirs, ==Ms and adiumbb-ators do covenant, promise and agree, to and with
Grantee(s), its mmmors and assigns, by those presents, that GranW(s) and their hare, all and wngalar the
.., , litaments and premises hereby granted or mentioned and intended so to be, with the gVurienanoas, to
Grantee(s), its and asdps, against them, the Grantor(s) and than heirs, and aping every person
whomsoever lawfully claiming or to claim the same or any part thaeA by, fom or under him, her, them or any of
them, shall and will SPECIALLY WARRANT and forever DEFEND.
IN WITNESS WHEREOF, the undersigned Grantor(s) have awned this Deed the date and year first above
written.
WITNESS:
Witness BJkJoe
witness Certify? this to be recorded
In Cumberland County PA
COMMONWEALTH OF PENNSYLV
COUNTY OF ?wrr? Recorder of Deeds
On this the 3rd day of Jamrary, 2006, befae ne, the uaderdgaod ofilea, persoodly appeared
Elie-Joe Khourt an adopt individual
i mown to be (or safifttory proven) to be the person(s) whose name(s) are subscribed our the foroving Indeatdue,
and adwowledged that they wwded the same for the purposes therein contained, and desired the same might be
recorded as such, a=rding to law.
Wit I set my hand and offmial s
&* J. F Wd% Netary Pd*
Nswbwn T%%j)., Oatswrrr Ca u*
My Camdebrt &0@* 0e t. a 2W9 Notary Public
Member. PenrwAw t Aaodison of Note w
"Tbe Predw Reddemee and the complete Past Oflke address of #cb Grantee"
I certify that the corr+ecx address ofArV raatee(s) is: S/ fr ;Q.Pih ?. 0. I M LA 9A) c S ??? p?1
11aS?
Grantee or Agent
eoOK 272 PAGE3461
`> 1 HERITAGE LAND TRANSF R
1 °1 1 1576 MCCFaniel Drive
West Chester, PA 19380
610-429.9200 ^
Cr!r P. AI?rECLE;%
"_;uRDER OF DEEPS
THIS DEED 2005 JUN 16 RM 10 32
Tax Parcel No. 10-22-0529-015
Made the I day of , in the year of our Lord two thousand five (2005)
Between CECELIA R. SPERA, TRUSTEE OF TRUST UNDER ITEM IV OF THE
WILL OF JOSEPH J. SPERA F/1310 KATHERYNE T. SPERA AND ALEX
GRASS, CO-PARTNERS, party of the first part ("Grantor')
AND
COLISEUM REAL ESTATE GROUP, INC., a Pennsylvania corporation,
party of the second part ("Grantee')
Mllnesseth, that the said Grantor, for and in consideration of the sum of Four Hundred
Fifty Thousand and 00/100 ($450,000.00) Dollars lawful money of the United States
unto Grantor well and truly paid by the Grantee, the receipt of which is hereby
acknowledged, does hereby grant, bargain, sell, alien, enfeoff, release, convey and
confirm unto the said Grantee, Grantee's successors and assigns,
All that certain parcel of land, situate in Hampden Township, Cumberland
County, Pennsylvania, bounded and described in accordance with a survey prepared
by Hoover Engineering Services, Inc. dated January 21, 2002, File No. 202005, as
follows:
Beginning at a point located along the Western Legal Right-of-Way Line of St.
John's Church Road (S.R. 2029), at lands now or late of Atlantic Refining and
Marketing Corp.; thence along St. John's Church Road, South 40 degrees 43 minutes
04 seconds East, a distance of 245.72 feet to a point; thence along lands now or late of
James Yaple, South 49 degrees 16 minutes 56 seconds West, a distance of 351.05
feet to a steel pin; thence along lands now or late of Realm, on a curve, curving to the
left, having a radius of 320.00 feet and an are length of 366.58 feet (a chord bearing of
North 65 degrees 10 minutes 58 seconds West, and a chord distance of 346.86 feet) to
a steel pin; thence along lands now or late of Barone Enterprises and Frontier Partners
L.P., North 60 degrees 13 minutes 56 seconds East, a distance of 219.29 feet to a
point; thence along lands previously referenced North 30 degrees 13 minutes 04
seconds West, a distance of 49.34 feet to a point; thence along lands now or late of
Atlantic Refining and Marketing Corp., North 65 degrees 08 minutes 56 seconds East, a
distance of 281.12 feet to a point, the place of (beginning.
Containing 108,319.51 square feet or 2.4867 acres.
BEING known and numbered as 415 St. Johns Church Road, Camp Hill, Pennsylvania.
600K 269 PACED%
? r
BEING the same premises which Spera Industrial Co., a Pennsylvania corporation, by
deed dated March 23, 1973, recorded March 23, 1973, in Cumberland County Deed
Book B, Volume 25, Page 469, granted and conveyed unto Joseph J. Spera and Alex
Grass, Copartners. The said Joseph J. Spera died and Cecelia R. Spera, Executrix of
the Estate of Joseph J. Spera, transferred his interest to Cecelia R. Spers, Trustee of
Trust Under Item IV of the Will of Joseph J. Spera f/b/o Katheryne T. Spera, Grantors
herein.
UNDER AND SUBJECT, HOWEVER, to:
1. The rights of the public in St. John's Church Road (Legislative Route 21079).
2. Easements for sanitary sewers.
FURTHER UNDER AND SUBJECT to any and all restrictions, reservations, easements,
covenants, conditions and rights-of-way of record.
Together with all and singular the hereditaments and appurtenances thereunto
belonging or in anywise appertaining and the reversions and remainders, rents, issues
and profits thereof and all the estate, right, title, interest, property, claim and demand
whatsoever of the Grantor, in law, equity or otherwise, of, in and to the same and every
part thereof.
To Have and to Hold the above-described premises with the appurtenances unto the
Grantee, Grantee's successors and assigns, forever.
And the said Grantor hereby covenants and agrees that they will warrant specially the
property hereby conveyed.
$ log F
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In Witness Whereof, the Grantor has hereunto set its hand and seal the day and year
first above written.
WITNESS:
24??? & '.0 A. -
Alex Grass
Trust Under Item IV of the Will of Joseph
J. Spero fib/o Katheryne T. Spero
By=
Cecelia R. Spera, rustee
Commonwealth of Pennsylvania
County of Dauphin
. SS..
6+
On this, the day of 2005, before me, a Notary Public, the
undersigned officer, personally peared Cecelia R. Spero, Trustee of Trust Under Item
IV of the Will of Joseph J. Spero f/b/o Katheryne T. Spero, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within deed and
acknowledged that she as Trustee executed the same for the purposes therein
contained on behalf of the Trust.
In Witness Whereof, 1 hereunto set my hand and official seal.
(SEAL) MMMRjVALUL-jQF P &wce?...*
C?> Alk'Ll cvA46 - -) -
Notary Public
My Commission Expires:
V
Farah S.NotwWM}' Can?isiQO B IMam6ar, Pannay * of NoMfti
1W vMMEMOR F N Public
E**= Nov. 14,2ft
Moldw• PWMYM* Anodedon of F* faF
aft 26SPAGEIWS
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Commonwealth of Pennsylvania
. SS..
County of Dauphin .
On this, the ?? day of , 2005, before me, the undersigned
officer, personally appeared Alex Grass, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument, and acknowledged that he
executed the same for the purposes therein contained.
In Witness Whereof, I hereunto set my hand and official seal.
Notary Public
My Commission Expires:
(SEAL) Q0WOM&TH OF-PWM
v
Nofarw Sew
F ?40twy Public
moubmw
my cm"w Bxpira Nov. 14,
MN dw Pavoylve Aembdoe of Nmh
I Hereby Certify that the precise residence of the Grantee is
Act, ftro
Attorney for Grantee
I C'el-tify this to be recorded
In C'uil berb..nd County PA
Recorder of Deeds
f
VERIFICATION
I, Robert Marquette, President and CEO of Members 1"Federal Credit Union, acknowledge
that I have the authority to execute this Verification on behalf of Members 1' Federal Credit Union
and certify that the foregoing Complaint for Confession of Judgment for Possession of Real Property
is based upon information which has been gathered by my counsel in the preparation of the lawsuit.
The language of this document is that of counsel and not my own. I have read the document and to
the extent the Complaint for Confession of Judgment for Possession of Real Property is based upon
information which I have given to my counsel, it is true and correct to the best of my knowledge,
information and belief. To the extent the content of the Complaint for Confession of Judgment for
Possession of Real Property is that of counsel, I have relied upon counsel in making this
Verification.
This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904
relating to unsworn falsification to authorities, which provides that if I knowingly make false
averments, I may be subject to criminal penalties.
Christopher E. Rice, Esquire
Attorney I.D. No. 90916
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
MEMBERS 1ST FEDERAL CREDIT
UNION,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
: NO. 09 - CIVIL TERM
COLISEUM REAL ESTATE GROUP,
INC.,
Defendant
NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION
REQUIRED BY 42 PA. C.S.A. §2737.1. (Act 105 of 2000)
To: Coliseum Real Estate Group, Inc.
PURSUANT TO 42 PA. C.S.A. SECTION 2737.1, IF YOU HAVE BEEN INCORRECTLY
IDENTIFIED AND HAD A CONFESSION OR JUDGMENT ENTERED AGAINST YOU,
YOU ARE ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS
DETERMINED BY THE COURT.
INSTRUCTIONS REGARDING THE PROCEDURE TO STRIKE THE CONFESSED
JUDGMENT ARE SET FORTH BELOW:
Pennsylvania Rule of Civil Procedure 2959 - Striking Off Judgment
(a) (1) Relief from a judgment by confession shall besought by petition. Except as provided in
subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be
asserted in a single petition. The petition may be filed in the county in which the judgment was
originally entered, in any county to which the judgment has been transferred or in any other county
in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment.
(2) The ground that the waiver of the due process rights of notice and hearing was not
voluntary, intelligent and knowing shall be raised only:
(1) in support of a further request for a stay of execution where the court has not
stayed execution despite the timely filing of a petition for relief from the judgment and the
presentation of prima facie evidence of a defense; and
(ii) as provided by Pennsylvania Rule of Civil Procedure 2958.3 or Rule 2973.3.
(3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule
2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can
demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be
denied.
(b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and
may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file
an answer on or before the return of the rule. The return day of the rule shall be fixed by the court
by local rule or special order.
(c) A party waives all defenses and objections which are not included in the petition or answer.
(d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440.
(e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions,
admissions and other evidence. The court for cause shown may stay proceedings on the petition
insofar as it seeks to open the judgment pending disposition of the application to strike off the
judgment. If evidence is produced which in a jury trial would require the issues to be submitted to
the jury the court shall open the judgment.
(f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings
to strike off or open the judgment are pending.
(g) (1) A judgment shall not be stricken or opened because of a creditor's failure to provide a
debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to
strike a judgment or regarding any rights available to an incorrectly identified debtor.
(2) Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of
subdivision (g) which have not been stricken or opened as of the effective date and (2) judgments
entered on or after the effective date.
You may have other rights available to you other than as set forth in this notice. You
should take this paper to your lawyer at once. If you do not have a lawyer, go to or telephone
the office set forth below. This office can provide you with information about hiring a lawyer.
If you cannot afford to hire a lawyer, this office may be able to provide you with
information about agencies that may offer legal services to eligible persons at a reduced fee or
no fee.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania
(717) 249-3166
Christopher E. Rice, Esquire
Attorney I.D. No. 90916
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
MEMBERS 1ST FEDERAL CREDIT
UNION,
Plaintiff
V.
COLISEUM REAL ESTATE GROUP,
INC.,
Defendant
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 09 - CIVIL TERM
CERTIFICATE OF RESIDENCE
We hereby certify that the last known address of the Defendant is:
Coliseum Real Estate Group, Inc.
410 St. John's Church Road
Camp Hill, PA 17011
The address of Plaintiff is: 5000 Louise Drive, Mechanicsburg, PA 17055
MARTSON LAW OFFICES
-04 ?f/r?
Y
Christopher E. Rice, Esquire
Date: / " Z Attorneys for Plaintiff
f
f
Christopher E. Rice, Esquire
Attorney I.D. No. 90916
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
MEMBERS 1ST FEDERAL CREDIT
UNION,
Plaintiff
V.
COLISEUM REAL ESTATE GROUP,
INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 09 -
AFFIDAVIT
CIVIL TERM
I, Christopher E. Rice, Esquire, attorney for Plaintiff, hereby certify, that to the best of my
knowledge, that the Confession of Judgment for Possession of Real Property attached is not being
entered against a natural person in connection with a residential lease.
0
Christopher E. Rice, Esquire
Sworn to and sub cribed
before me this day of June, 2009.
ublic
Nqar
COMMONWMTH OF PENNSYLVANIA
L= Saw
MMy M. Plot Nobly Pubic
A"11 awwo Aum. A 2011
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.46
Christopher E. Rice, Esquire
Attorney I.D. No. 90916
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
MEMBERS 1ST FEDERAL CREDIT
UNION,
Plaintiff
V.
COLISEUM REAL ESTATE GROUP,
INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 09 - CIVIL TERM
AFFIDAVIT AS TO MILITARY SERVICE
COMMONWEALTH OF PENNSYLVANIA )
:SS.
COUNTY OF CUMBERLAND )
Christopher E. Rice, Esquire, being duly sworn according to law, deposes and says that he
has authority to make this affidavit on behalf of his client, and to the best of his knowledge,
information and belief, the Defendant Coliseum Real Estate Group, Inc., is an entity and, therefore,
is not in the military service of the United States of America, that he has knowledge that the said
Defendant is now located at: 410 St. Johns Church Road, Camp Hill, Pennsylvania.
Christopher E. Rice, Esquire
Sworn t and subscribed before me
this day of June, 2009.
II N t Public
COMMONWEALTH OF PENNSYLVANIA
Notarial Seel
Mary M. prim Notary PL M
Carne eoro, Cunberland County
My cmwrUeelon E)q*w Aug.1 S. 2011
Member, Pennsylvems AssMI"On of NoHrles
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Christopher E. Rice, Esquire
Attorney I.D. No. 90916
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
MEMBERS 1ST FEDERAL CREDIT
UNION,
Plaintiff
V.
COLISEUM REAL ESTATE GROUP,
INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 09 - S CIVIL TERM
NOTICE OF ENTRY OF JUDGMENT
PURSUANT TO PA. R.C.P. NO. 236
TO: Coliseum Real Estate Group, Inc.
410 St. John's Church Road
Camp Hill, PA 17011
You are hereby notified that on , judgment by confession for
possession of real property located at 410 St. John's Church Road, Camp Hill, Hampden Township,
Cumberland County, Pennsylvania, and 4610 East Trindle Road, Camp Hill, Hampden Township,
Cumberland County, Pennsylvania, was entered against you in the above-captioned case in favor of
Members 1't Federal Credit Union.
hdh:7
A44 k 4
Date: ?IXW?1 y p onot
ary
Sheriffs Office of Cumberland County
R Thomas Kline °???tit ofugrrf.? Edward L Schorpp
Sheri 4 Solicitor
V
Ronny R Anderson Jody S Smith
Chief Deputy WCE )F 7HE S-ERIFF Civil Process Sergeant
SHERIFF'S RETURN OF SERVICE
06/03/2009 12:47 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on June
3, 2009 at 1247 hours, she served a true copy of the within Confession of Judgement, upon the within
named defendant, to wit: Coliseum Real Estate Group, Inc., by making known unto Patrick Myers, owner
at 410 Saint Johns Road Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the
same time handing to him personally the said true and correct copy of the same.
06/03/2009 03:01 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on June
3, 2009 at 1501 hours, she served a true copy of the within Confession of Judgement, upon the within
named defendant, to wit: Coliseum Real Estate Group, Inc., by making known unto Kevin Benton, adult in
charge at 401 East Louther Street Carlisle, Cumberland County, Pennsylvania 17013 its contents and at
the same time handing to him personally the said true and correct copy of the same.
06/03/2009 03:13 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on June
3, 2009 at 1513 hours, she served a true copy of the within Confession of Judgement, upon the within
named defendant, to wit: Coliseum Real Estate Group, Inc., by making known unto Wayne Powell, adult it
charge at 252 West Pomfret Street Carlisle, Cumberland County, Pennsylvania 17013 its contents and at
the same time handing to him personally the said true and correct copy of the same.
SHERIFF COST: $84.74
SO ANS ,
June 04, 2009
2009-3606
Members 1st Credit Union
V
Coliseum Real Estate Croup
R THOMAS KLINE, SHERIFF
LIE:1?
Deputy Sheriff
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