HomeMy WebLinkAbout10-1459IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Adams County National Bank,
Plaintiff,
VS.
Joseph K. Warner and
Cathy M. Warner,
husband and wife,
Defendants.
No.1Q?? S t v c h
Action in Mortgage Foreclosure
To: Joseph K. Warner and Cathy M. Warner, Defendants:
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice
are served, by entering a written appearance personally or by attorney, and filing in writing
with the court your defenses or objections to the claims set forth against you. You are warned
that if you fail to do so, the case may proceed without you and a judgment may be entered
against you by the court without further notice for any money claimed in the complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
' 1-800-990-9108
717-249-3166
uqe
1
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Adams County National Bank, No.
Plaintiff,
vs.
Joseph K. Warner and
Cathy M. Warner,
husband and wife,
Defendants.
Action in Mortgage Foreclosure
To: Joseph K. Warner and Cathy M. Warner, Defendants:
AVISO
USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defendersee de
las quejas expuestas en las paginas siguientes, debe tomar acci6n dentro de veinte (20) dias a
partir de la fecha en que recibi6 la demanda y el aviso. Usted debe presentar comparecencia
escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus
objeciones a las demandas en su contra.
Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede
decidir en su contra sin mas aviso o notificaci6n por cualquier dinero reclamado en al
demanda o por cualquier otra queja o compensaci6n reclamados por el Demandante. USTED
PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES
PARA USTED.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED
NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA
DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER
ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
2
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
C • J- `{
Adams County National Bank, No.
Plaintiff,
VS. Action in Mortgage Foreclosure
Joseph K. Warner and
Cathy M. Warner, :
husband and wife,
Defendants.
COMPLAINT
AND NOW, this day of , 2010, comes the Plaintiff,
Adams County National Bank, by its attorneys, Puhl, Eastman & Thrasher, who brings this
action in mortgage foreclosure against Joseph K. Warner and Cathy M. Warner, Defendants,
whereof the following is a statement:
1. The Plaintiff is Adams County National Bank, Mortgagee, a national banking
corporation organized and existing under the laws of Congress relating to national banks, with
its main office at 16 Lincoln Square, Borough of Gettysburg, Adams County, Pennsylvania
17325.
2. The Defendants are Joseph K. Warner and Cathy M. Warner, husband and wife,
adult individuals who reside at 1745 County Line Road, York Springs, York County,
Pennsylvania 17372.
3
3. Defendants, Joseph K. Warner and Cathy M. Warner, are not in the military or
naval service of the United States or its allies within the provisions of the Servicemembers
Civil Relief Act of 2005, 50 App. U.S.C.A. § 501 et seq.
4. On September 10, 2004, the Defendants, made, executed and delivered a mortgage
upon real estate hereinafter described to Plaintiff as Mortgagee, which mortgage is recorded
in the office of the Recorder of Deeds of Cumberland County, Pennsylvania in Record
Book 1881 at page 4965, a copy of said mortgage being attached hereto and marked as
Exhibit "A" and incorporated herein by reference.
6. The mortgage secures Defendants' note dated September 10, 2004, in the amount
of $100,000.00, payable to Plaintiff in monthly installments with interest adjusted as per
terms of the note, a copy of which is attached hereto as Exhibit B" and incorporated herein
by reference.
7. Said mortgage has not been assigned.
8. The real estate is described as follows:
Property Address: 442 Pine Grove Road, Gardners, PA 17324
Tax Map and Parcel No. 08-40-2641-019
ALL that certain lot of land situate in the Township of Dickinson, County
of Cumberland, and Commonwealth of Pennsylvania, more particularly
bounded and described as follows:
BEGINNING at a railroad spike in the center line of a public road
(L.R. 21005); thence along said center line North 56° 32' 10" East 54.64
feet to a point on the dividing line between Lot 52 and Lot 53 of the
hereinafter mentioned Subdivision Plan; thence along said dividing line
South 33° 27' 50" East 463.25 feet to a point; thence South 57° 36' 09"
West 196.02 feet to a point on the dividing line between Lot 53 and Lot 54
of the hereinafter mentioned Subdivision Plan; thence along said dividing
line North 33° 57' 50" West 458.35 feet to a point in the center line of said
4
public road; thence along said centerline North 56° 02' 10" East 145.36
feet to a railroad spike, the point and place of BEGINNING.
BEING Lot No. 53 on a final subdivision plan for Dickinson
Township Joint Venture dated November 4, 1983, revised February 18,
1984, and approved by the Supervisors of Dickinson Township on
February 20, 1984, which said plan was duly entered of record on March
1, 1984, and appears of record in the Office of the Recorder of Deeds in
and for Cumberland County in Plan Book 45, Page 32.
UNDER AND SUBJECT to all legal highways, easements, rights
of way, and restrictions of record.
BEING the same premises which Matthew D. Miller and Amy L.
Miller, husband and wife, by their deed dated April 15, 1997, and recorded in
the Office of the Recorder of Deeds in and for Cumberland County,
Pennsylvania, in Record Book 156, at Page 176, granted and conveyed unto
Joseph K. Warner and Cathy M. Warner, Mortgagors herein.
9. Said mortgage is in default because the payments of principal and interest, which
have become due and payable on December 10, 2009, and on the 10th day of each month
thereafter, remain due and unpaid. By the terms of said mortgage and at the option of
Plaintiff, the whole of the said mortgage debt and interest is immediately due and payable.
10. The present owners of the real estate are the Defendants, Joseph K. Warner and
Cathy M. Warner, husband and wife.
11. By reason of the aforesaid default, the following amounts are due in accordance
with the terms of the mortgage:
(a) Balance of unpaid principal $75,829.90
(b) Interest from 01/16/10 to 02/23/10 $ 773.11
(Plus $10.91 per diem thereafter)
(c) Late charges to 02/23/10 $ 49.90
(Plus $24.95 per month thereafter)
(d) Other fees $ 1,259.90
(e) Attorney's commissions 3,500.00
TOTAL $81,412.81
12. The attorney's commissions set forth above are in conformity with the mortgage
5
documents and Pennsylvania law and will be collected in the event of a third party purchaser
at Sheriff's Sale. If the mortgage is reinstated prior to the Sheriff's Sale, reasonable
attorney's fees will be charged based upon legal work actually performed.
13. The aforesaid mortgage is not a residential mortgage under the provisions of Act
91 of 1983 and Act 6 of 1974, as amended.
WHEREFORE, Plaintiff demands IN REM judgment in mortgage foreclosure for the
sum of $81,412.81, plus interest from February 24, 2010, at a per diem of $10.91, additional
late charges, costs of suit, and other charges collectible under the terms of the mortgage; for
the foreclosure and sale of the mortgaged property; and for other relief as the Court deems
appropriate.
Respectfully submitted:
PURL, EASTMAN & THRASHER
By: a J , Z'
Richard E. Thrasher, Esquire
Attorney ID Number 22904
Attorney for Plaintiff
220 Baltimore Street
Gettysburg, PA 17325
(717) 334-2159
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STATE OF PENNSYLVANIA,
COUNTY OF ADAMS
Susan M. Saylor, being duly sworn according to law, does depose and say that she is
the Assistant Vice President, Collections, of Adams County National Bank, and that the facts
set forth in the foregoing complaint are true and correct to the best of her knowledge,
information and belief.
usanM. Saylor
Sworn to and subscribed before me
this X5`0' day of FebraAN ,
2010.
Azt t. 7?. (Sjcam
Notary Public
COMMOWEALTH OF PENNSYLVANIA
NotarMll Seel
My commission expires: Lade R CATm , Noll ryPtA*
G®ltysb a B= Adwm Corny
My Conan WM Ekes Oct. 23, 2011
Member, Pennsylvania Association of Noted
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7
31
ROBERT P. ZIEGLER
RECORDER OF DEEDS
CUVi a`'RLAIVD C0U141"i'- F"t
2004 SEP 24 PM 2 0?
Commonwealth of Pennsylvania Space Above This Line For Recording Data
OPEN-END MORTGAGE
This Mortgage secures future advances
1. DATE AND PARTIES. The date of this Mortgage (Security Instrument) is
SEPTEMBER to , 2004 and the parties, their addresses and tax identification
numbers, if required, are as follows:
MORTGAGOR:
JOSEPH K WARNER
CATHY M WARNER
1745 COUNTY LINE RD
YORK SPRINGS PA 17372
?If checked, refer to the attached Addendum incorporated herein, for additional
Mortgagors, their signatures and acknowledgments.
LENDER:
ADAMS COUNTY NATIONAL BANK
PO BOX 3129
GETTYSBURG PA 17325
2. CONVEYANCE. For good and valuable consideration, the receipt and sufficiency of
which is acknowledged, and to secure the Secured Debt (defined below) and
Mortgagor's performance under this Security Instrument, Mortgagor grants, bargains,
conveys and mortgages to Lender the following described property:
SITUATED IN THE TOWNSHIP/BOROUGH OF DICKINSON MORE
PARTICULARLY DESCRIBED IN THE DEEDS(S) TO THE MORTGAGOR(S), RECORDED IN
THE OFFICE OF THE RECORDER OF SAID COUNTY IN RECORD BOOK 156 AT
PAGE 176
(INSERT ADDITIONAL DEED OR RECORD BOOK AND PAGE REFERENCE, IF APPLICABLE)
The property is located in CUMBERLAND at
(County)
442 PINE GROVE ROAD LOT 53, GARDNERS , Pennsylvania 17324
(Address) (City) (Zip Code)
Together with all rights, easements, appurtenances, royalties, mineral rights, oil and
gas rights, crops, timber, all diversion payments or third party payments made to
crop producers, all water and riparian rights, wells, ditches, reservoirs, and water
stock and all existing and future improvements, . structures, fixtures, and
replacements that may now, or at any time in the future, be part of the real estate
described above (all referred to as "Property").
PENNSYLVANIA - AORICULTORAUCOMME MAL REAL ESTATE SECURITY RLSTRUMERT INOT FOR FNMA, FHLMC, FHA 00 VA USE, AN NOT FOR CONSUMER PURPOSES) (page 1 of 14)
j ~ O 1994, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-REST-PA 1/10/2003
FORM 113
BK 8 8 f PG"4 916 5 TT °A°
3. MAXIMUM OBLIGATION LIMIT. The total principal amount secured by this Security
Instrument at any one time shall not exceed $ 100, 000.00 . This
limitation of amount does not include interest and other fees and charges validly
made pursuant to this Security Instrument. Also, this limitation does not apply to
advances made under the terms of this Security Instrument to protect Lender's
security and to perform any of the covenants contained in this Security Instrument.
4. SECURED DEBT AND FUTURE ADVANCES. The term "Secured Debt" is defined as
follows:
A. Debt incurred under the terms of all promissory note(s), contract(s),
guaranty(ies) or other evidence of debt described below and all their extensions,
renewals, modifications or substitutions. (When referencing the debts below it
is suggested that you include items such as borrowers' names, note amounts,
interest rates, maturity dates, etc.)
BORROWER: JOSEPH K WARNER AND CATHY M WARNER
LOAN AMOUNT: $ 100,000.00
INTEREST RATE: 7.000 %
MATURITY DATE: 09/10/2019
B. All future advances from Lender to Mortgagor or other future obligations of
Mortgagor to Lender under any promissory note, contract, guaranty, or other
evidence of debt existing now or executed after this Security Instrument
whether or not this Security Instrument is specifically referenced. If more than
one person signs this Security Instrument, each Mortgagor agrees that this
Security Instrument will secure all future advances and future obligations that
are given to or incurred by any one or more Mortgagor, or any one or more
Mortgagor and others. All future advances and other future obligations are
secured by this Security Instrument even though all or part may not yet be
advanced. All future advances and other future obligations are secured as if
made on the date of this Security Instrument. Nothing in this Security
Instrument shall constitute a commitment to make additional or future loans or
advances in any amount. Any such commitment must be agreed to in a
separate writing.
C. All obligations Mortgagor owes to Lender, which now exist or may later arise,
to the extent not prohibited by law, including, but not limited to, liabilities for
overdrafts relating to any deposit account agreement between Mortgagor and
Lender.
D. All additional sums advanced and expenses incurred by Lender for insuring,
preserving or otherwise protecting the Property and its value and any other
sums advanced and expenses incurred by Lender under the terms of this
Security Instrument.
This Security Instrument will not secure any other debt if Lender fails to give any
required notice of the right of rescission.
5. PAYMENTS. Mortgagor agrees that all payments under the Secured Debt will be paid
when due and in accordance with the terms of the Secured Debt and this Security
Instrument. C/?1l//,?1 (page 2 of 14/
s--xl-+E-M O 1994, 2001 Bankers Systems, Inc., St. C", MN Form AGCO-RESI-PA 1/10/2003 1! 1 ----
FORM 213
6. WARRANTY OF TITLE. Mortgagor warrants that Mortgagor is or will be lawfully
seized of the estate conveyed by this Security Instrument and has the right to grant,
bargain, convey, sell, and mortgage the Property. Mortgagor also warrants that the
Property is unencumbered, except for encumbrances of record.
7. PRIOR SECURITY INTERESTS. With regard to any other mortgage, deed of trust,
security agreement or other lien document that created a prior security interest or
encumbrance on the Property, Mortgagor agrees:
A. To make all payments when due and to perform or comply with all covenants.
B. To promptly deliver to Lender any notices that Mortgagor receives from the
holder.
C. Not to allow any modification or extension of, nor to request any future
advances under any note or agreement secured by the lien document without
Lender's prior written consent.
8. CLAIMS AGAINST TITLE. Mortgagor will pay all taxes, assessments, liens,
encumbrances, lease payments, ground rents, utilities, and other charges relating to
the Property when due. Lender may require Mortgagor to provide to Lender copies of
all notices that such amounts are due and the receipts evidencing Mortgagor's
payment. Mortgagor will defend title to the Property against any claims that would
impair the lien of this Security Instrument. Mortgagor agrees to assign to Lender, as
requested by Lender, any rights, claims or defenses Mortgagor may have against
parties who supply labor or materials to maintain or improve the Property.
9. DUE ON SALE OR ENCUMBRANCE. Lender may, at its option, declare the entire
balance of the Secured Debt to be immediately due and payable upon the creation
of, or contract for the creation of, any lien, encumbrance, transfer or sale of the
Property. This right is subject to the restrictions imposed by federal law (12 C.F.R.
591), as applicable. This covenant shall run with the Property and shall remain in
effect until the Secured Debt is paid in full and this Security Instrument is released.
10.TRANSFER OF AN INTEREST IN THE MORTGAGOR. If Mortgagor is an entity other
than a natural person (such as a corporation or other organization), Lender may
demand immediate payment if:
A. A beneficial interest in Mortgagor is sold or transferred.
B. There is a change in either the identity or number of members of a partnership
or similar entity.
C. There is a change in ownership of more than 25 percent of the voting stock of
a corporation or similar entity.
However, Lender may not demand payment in the above situations if it is prohibited
by law as of the date of this Security Instrument.
11.ENTITY WARRANTIES AND REPRESENTATIONS. If Mortgagor is an entity other than
a natural person (such as a corporation or other organization), Mortgagor makes to
Lender the following warranties and representations which shall continue as long as
the Secured Debt remains outstanding:
!page 3 of 14/
w 0 7994, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-REST-PA 1/10/2003
q)4? FORM 313
A. Mortgagor is duly organized and validly existing in Mortgagor's state of
incorporation or organization. Mortgagor is in good standing in all states in
which Mortgagor transacts business. Mortgagor has the power and authority to
own the Property and to carry on its business as now being conducted and, as
applicable, is qualified to do so in each state in which Mortgagor operates.
B. The execution, delivery and performance of this Security Instrument by
Mortgagor and the obligations evidenced by the Secured Debt are within the
power of Mortgagor, have been duly authorized, have received all necessary
governmental approval, and will not violate any provision of law, or order of
court or governmental agency.
C. Other than previously disclosed in writing to Lender, Mortgagor has not
changed its name within the last ten years and has not used any other trade or
fictitious name. Without Lender's prior written consent, Mortgagor does not and
will not use any other name and will preserve its existing name, trade names
and franchises until the Secured Debt is satisfied.
12.PROPERTY CONDITION, ALTERATIONS AND INSPECTION. Mortgagor will keep the
Property in good condition and make all repairs that are reasonably necessary.
Mortgagor shall not commit or allow any waste, impairment, or deterioration of the
Property. Mortgagor will keep the Property free of noxious weeds and grasses.
Mortgagor agrees that the nature of the occupancy and use will not substantially
change without Lender's prior written consent. Mortgagor will not permit any change
in any license, restrictive covenant or easement without Lender's prior written
consent. Mortgagor will notify Lender of all demands, proceedings, claims, and
actions against Mortgagor, and of any loss or damage to the Property.
No portion of the Property will be removed, demolished or materially altered without
Lender's prior written consent except that Mortgagor has the right to remove items
of personal property comprising a part of the Property that become worn or obsolete,
provided that such personal property is replaced with other personal property at least
equal in value to the replaced personal property, free from any title retention device,
security agreement or other encumbrance. Such replacement of personal property
will be deemed subject to the security interest created by this Security Instrument.
Mortgagor shall not partition or subdivide the Property without Lender's prior written
consent.
Lender or Lender's agents may, at Lender's option, enter the Property at any
reasonable time for the purpose of inspecting the Property. Lender shall give
Mortgagor notice at the time of or before an inspection specifying a reasonable
purpose for the inspection. Any inspection of the Property shall be entirely for
Lender's benefit and Mortgagor will in no way rely on Lender's inspection.
13.AUTHORITY TO PERFORM. If Mortgagor fails to perform any duty or any of the
covenants contained in this Security Instrument, Lender may, without notice,
perform or cause them to be performed. Mortgagor appoints Lender as attorney in
fact to sign Mortgagor's name or pay any amount necessary for performance.
Lender's right to perform for Mortgagor shall not create an obligation to perform, and
Lender's failure to perform will not preclude Lender from exercising any of Lender's
other rights under the law or this Security Instrument. If any construction on the
(page 4 of 14/
M 0 7994, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-REST-PA 1/70/2003
Mortgagor will not sublet, modify, extend, cancel, or otherwise alter the Leases, or
accept the surrender of the Property covered by the Leases (unless the Leases so
require) without Lender's consent. Mortgagor will not assign, compromise,
subordinate or encumber the Leases and Rents without Lender's prior written
consent. Lender does not assume or become liable for the Property's maintenance,
depreciation, or other losses or damages when Lender acts to manage, protect or
preserve the Property, except for losses and damages due to Lender's gross
negligence or intentional torts. Otherwise, Mortgagor will indemnify Lender and hold
Lender harmless for all liability, loss or damage that Lender may incur when Lender
opts to exercise any of its remedies against any party obligated under the Leases.
15.LEASEHOLDS; CONDOMINIUMS; PLANNED UNIT DEVELOPMENTS. Mortgagor
agrees to comply with the provisions of any lease if this Security Instrument is on a
leasehold. If the Property includes a unit in a condominium or a planned unit
development, Mortgagor will perform all of Mortgagor's duties under the covenants,
by-laws, or regulations of the condominium or planned unit development.
16-DEFAULT. Mortgagor will be in default if any of the following occur:
A. Any party obligated on the Secured Debt fails to make payment when due;
B. A breach of any term or covenant in this Security Instrument or any other
document executed for the purpose of creating, securing or guarantying the
Secured Debt;
C. The making or furnishing of any verbal or written representation, statement or
warranty to Lender that is false or incorrect in any material respect by
Mortgagor or any person or entity obligated on the Secured Debt;
D. The death, dissolution, or insolvency of, appointment of a receiver for, or
application of any debtor relief law to, Mortgagor or any other person or entity
obligated on the Secured Debt;
E. A good faith belief by Lender at any time that Lender is insecure with respect to
any person or entity obligated on the Secured Debt or that the prospect of any
payment is impaired or the value of the Property is impaired;
F. A material adverse change in Mortgagor's business including ownership,
management, and financial conditions, which Lender in its opinion believes
impairs the value of the Property or repayment of the Secured Debt; or
G. Any loan proceeds are used for a purpose that will contribute to excessive
erosion of highly erodible land or to the conversion of wetlands to produce an
agricultural commodity, as further explained in 7 C.F.R. Part 1940, Subpart G,
Exhibit M.
17.14EMEDIES ON DEFAULT. In some instances, federal and state law will require
Lender to provide Mortgagor with notice of the right to cure or other notices and may
establish time schedules for foreclosure actions. Subject to these limitations, if any,
Lender may accelerate the Secured Debt and foreclose this Security Instrument in a
manner provided by law if Mortgagor is in default.
At the option of Lender, all or any part of the agreed fees and charges, accrued
interest and principal shall become immediately due and payable, after giving notice
/-??)I ) ? (page 6 of 141
?/? 0 7994, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESFPA 7/10/2003 ( ?
Property is discontinued or not carried on in a reasonable manner, Lender may take
all steps necessary to protect Lender's security interest in the Property, including
completion of the construction.
14.ASSIGNMENT OF LEASES AND RENTS. Mortgagor assigns, grants, bargains,
conveys and mortgages to Lender as additional security all the right, title and interest
in the following (Property).
A. Existing or future leases, subleases, licenses, guaranties and any other written
or verbal agreements for the use and occupancy of the Property, including but
not limited to, any extensions, renewals, modifications or replacements
(Leases).
B. Rents, issues and profits, including but not limited to, security deposits,
minimum rents, percentage rents, additional rents, common area maintenance
charges, parking charges, real estate taxes, other applicable taxes, insurance
premium contributions, liquidated damages following default, cancellation
premiums, "loss of rents" insurance, guest receipts, revenues, royalties,
proceeds, bonuses, accounts, contract rights, general intangibles, and all rights
and claims which Mortgagor may have that in any way pertain to or are on
account of the use or occupancy of the whole or any part of the Property
(Rents).
In the event any item listed as Leases or Rents is determined to be personal property,
this Assignment will also be regarded as a security agreement.
Mortgagor will promptly provide Lender with copies of the Leases and will certify
these Leases are true and correct copies. The existing Leases will be provided on
execution of the Assignment, and all future Leases and any other information with
respect to these Leases will be provided immediately after they are executed.
Mortgagor may collect, receive, enjoy and use the Rents so long as Mortgagor is not
in default. Mortgagor will not collect in advance any Rents due in future lease
periods, unless Mortgagor first obtains Lender's written consent. Upon default,
Mortgagor will receive any Rents in trust for Lender and Mortgagor will not
commingle the Rents with any other funds. When Lender so directs, Mortgagor will
endorse and deliver any payments of Rents from the Property to Lender. Amounts
collected will be applied at Lender's discretion to the Secured Debts, the costs of
managing, protecting and preserving the Property, and other necessary expenses.
Mortgagor agrees that this Security Instrument is immediately effective between
Mortgagor and Lender and effective as to third parties on the recording of this
Assignment.
As long as this Assignment is in effect, Mortgagor warrants and represents that no
default exists under the Leases, and the parties subject to the Leases have not
violated any applicable law on leases, licenses and landlords and tenants. Mortgagor,
at its sole cost and expense, will keep, observe and perform, and require all other
parties to the Leases to comply with the Leases and any applicable law. If Mortgagor
or any party to the Lease defaults or fails to observe any applicable law, Mortgagor
will promptly notify Lender. If Mortgagor neglects or refuses to enforce compliance
with the terms of the Leases, then Lender may, at Lender's option, enforce
compliance.
l /page 5 of 14/
J5 5E. ,M O 1994, 2001 Bankers SYStsms, Inc., St. Cloud, MN Form AGCO-RESI-PA 1/10/2003 ' 11
FORM 513
$81PG4969
if required by law, upon the occurrence of a default or anytime thereafter. In
addition, Lender shall be entitled to all the remedies provided by law, the terms of
the Secured Debt, this Security Instrument and any related documents. All remedies
are distinct, cumulative and not exclusive, and the Lender is entitled to all remedies
provided at law or equity, whether or not expressly set forth. The acceptance by
Lender of any sum in payment or partial payment on the Secured Debt after the
balance is due or is accelerated or after foreclosure proceedings are filed shall not
constitute a waiver of Lender's right to require complete cure of any existing default.
By not exercising any remedy on Mortgagor's default, Lender does not waive
Lender's right to later consider the event a default if it continues or happens again.
18.EXPENSES; ADVANCES ON COVENANTS; ATTORNEYS' FEES; COLLECTION
COSTS. Except when prohibited by law, Mortgagor agrees to pay all of Lender's
expenses if Mortgagor breaches any covenant in this Security Instrument. Mortgagor
will also pay on demand any amount incurred by Lender for insuring, inspecting,
preserving or otherwise protecting the Property and Lender's security interest. These
expenses will bear interest from the date of the payment until paid in full at the
highest interest rate in effect as provided in the terms of the Secured Debt.
Mortgagor agrees to pay all costs and expenses incurred by Lender in collecting,
enforcing or protecting Lender's rights and remedies under this Security Instrument.
This amount may include, but is not limited to, attorneys' fees, court costs, and
other legal expenses. This Security Instrument shall remain in effect until released.
Mortgagor agrees to pay for any recordation costs of such release.
19. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES. As used in this section,
(1) Environmental Law means, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA, 42 U.S.C. 9601 et seq.), all
other federal, state and local laws, regulations, ordinances, court orders, attorney
general opinions or interpretive letters concerning the public health, safety, welfare,
environment or a hazardous substance; and (2) Hazardous Substance means any
toxic, radioactive or hazardous material, waste, pollutant or contaminant which has
characteristics which render the substance dangerous or potentially dangerous to the
public health, safety, welfare or environment. The term includes, without limitation,
any substances defined as "hazardous material," "toxic substances," "hazardous
waste" or "hazardous substance" under any Environmental Law.
Mortgagor represents, warrants and agrees that:
A. Except as previously disclosed and acknowledged in writing to Lender, no
Hazardous Substance has been, is, or will be located, transported,
manufactured, treated, refined, or handled by any person on, under or about the
Property, except in the ordinary course of business and in strict compliance
with all applicable Environmental Law.
B. Except as previously disclosed and acknowledged in writing to Lender,
Mortgagor has not and will not cause, contribute to, or permit the release of
any Hazardous Substance on the Property.
C. Mortgagor will immediately notify Lender if (1) a release or threatened release
of Hazardous Substance occurs on, under or about the Property or migrates or
threatens to migrate from nearby property; or (2) there is a violation of any
-'. !Page 7 of 141
EKZE.? ®1994, 2007 Bankers Systems, Inc., St. Mud, MN Forth AGCO-RESI-PA 1!10/2003
FORM 713
Environmental Law concerning the Property. In such an event, Mortgagor will
take all necessary remedial action in accordance with Environmental Law.
D. Except as previously disclosed and acknowledged in writing to Lender,
Mortgagor has no knowledge of or reason to believe there is any pending or
threatened investigation, claim, or proceeding of any kind relating to (1) any
Hazardous Substance located on, under or about the Property; or (2) any
violation by Mortgagor or any tenant of any Environmental Law. Mortgagor will
immediately notify Lender in writing as soon as Mortgagor has reason to believe
there is any such pending or threatened investigation, claim, or proceeding. In
such an event, Lender has the right, but not the obligation, to participate in any
such proceeding including the right to receive copies of any documents relating
to such proceedings.
E. Except as previously disclosed and acknowledged in writing to Lender,
Mortgagor and every tenant have been, are and shall remain in full compliance
with any applicable Environmental Law.
F. Except as previously disclosed and acknowledged in writing to Lender, there are
no underground storage tanks, private dumps or open wells located on or under
the Property and no such tank, dump or well will be added unless Lender first
consents in writing.
G. Mortgagor will regularly inspect the Property, monitor the activities and
operations on the Property, and confirm that. all permits, licenses or approvals
required by any applicable Environmental Law are obtained and complied with.
H. Mortgagor will permit, or cause any tenant to permit, Lender or Lender's agent
to enter and inspect the Property and review all records at any reasonable time
to determine (1) the existence, location and nature of any Hazardous Substance
on, under or about the Property; (2) the existence, location, nature, and
magnitude of any Hazardous Substance that has been released on, under or
about the Property; or (3) whether or not Mortgagor and any tenant are in
compliance with applicable Environmental Law.
1. Upon Lender's request and at any time, Mortgagor agrees, at Mortgagor's
expense, to engage a qualified environmental engineer to prepare an
environmental audit of the Property and to submit the results of such audit to
Lender. The choice of the environmental engineer who will perform such audit
is subject to Lender's approval.
J. Lender has the right, but not the obligation, to perform any of Mortgagor's
obligations under this section at Mortgagor's expense.
K. As a consequence of any breach of any representation, warranty or promise
made in this section, (1) Mortgagor will indemnify and hold Lender and Lender's
successors or assigns harmless from and against all losses, claims, demands,
liabilities, damages, cleanup, response and remediation costs, penalties and
expenses, including without limitation all costs of litigation and attorneys' fees,
which Lender and Lender's successors or assigns may sustain; and (2) at
Lender's discretion, Lender may release this Security Instrument and in return
Mortgagor will provide Lender with collateral of at least equal value to the
Property secured by this Security Instrument without prejudice to any of
Lender's rights under this Security Instrument.
t (', 1 /Page 8 of 14/
-+ ? 0 1994, 2001 Bankers Systems, Inc., St. Cloud. MN Form AGCO-REST-PA 1/10/2003 !Y,". y?/
L. Notwithstanding any of the language contained in this Security instrument to
the contrary, the terms of this section shall survive any foreclosure or
satisfaction of this Security Instrument regardless of any passage of title to
Lender or any disposition by Lender of any or all of the Property. Any claims
and defenses to the contrary are hereby waived.
20. CONDEMNATION. Mortgagor will give Lender prompt notice of any pending or
threatened action, by private or public entities to purchase or take any or all of the
Property through condemnation, eminent domain, or any other means. Mortgagor
authorizes Lender to intervene in Mortgagor's name in any of the above described
actions or claims. Mortgagor assigns to Lender the proceeds of any award or claim
for damages connected with a condemnation or other taking of all or any part of the
Property. Such proceeds_ shall be considered payments and will be applied as
provided in this Security Instrument. This assignment of proceeds is subject to the
terms of any prior mortgage, deed of trust, security agreement or other lien
document.
21.INSURANCE. Mortgagor agrees to maintain insurance as follows:
A. Mortgagor shall keep the Property insured against loss by fire, flood, theft and
other hazards and risks reasonably associated with the Property due to its type
and location. This insurance shall be maintained in the amounts and for the
periods that Lender requires. What Lender requires pursuant to the preceding
two sentences can change during the term of the Secured Debt. The insurance
carrier providing the insurance shall be chosen by Mortgagor subject to Lender's
approval, which shall not be unreasonably withheld. If Mortgagor fails to
maintain the coverage described above, Lender may, at Lender's option, obtain
coverage to protect Lender's rights in the Property according to the terms of
this Security Instrument.
All insurance policies and renewals shall be acceptable to Lender and shall
include a standard "mortgage clause" and, where applicable, "loss payee
clause." Mortgagor shall immediately notify Lender of cancellation or
termination of the insurance. Lender shall have the right to hold the policies and
renewals. If Lender requires, Mortgagor shall immediately give to Lender all
receipts of paid premiums and renewal notices. Upon loss, Mortgagor shall give
immediate notice to the insurance carrier and Lender. Lender may make proof
of loss if not made immediately by Mortgagor.
Unless otherwise agreed in writing, all insurance proceeds shall be applied to
restoration or repair of the Property or to the Secured Debt, whether or not then
due, at Lender's option. Any application of proceeds to principal shall not
extend or postpone the due date of scheduled payment nor change the amount
of any payment. Any excess will be paid to the Mortgagor. If the Property is
acquired by Lender, Mortgagor's right to any insurance policies and proceeds
resulting from damage to the Property before the acquisition shall pass to
Lender to the extent of the Secured Debt immediately before the acquisition.
B. Mortgagor agrees to maintain comprehensive general liability insurance naming
Lender as an additional insured in an amount acceptable to Lender, insuring
against claims arising from any accident or occurrence in or on the Property.
!page 9 of 14)
~ ®1994, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-REST-PA 1/70/2003 ?,\?y?IJ??-J?J
FORM 114 /[?Q
C. Mortgagor agrees to maintain rental loss or business interruption insurance, as
required by Lender, in an amount equal to at least coverage of one year's debt
service, and required escrow account deposits (if agreed to separately in
writing), under a form of policy acceptable to Lender.
22.ESCROW FOR TAXES AND INSURANCE. Unless otherwise provided in a separate
agreement, Mortgagor will not be required to pay to Lender funds for taxes and
insurance in escrow.
23.FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Mortgagor will provide to
Lender upon request, any financial statement or information Lender may deem
reasonably necessary. Mortgagor agrees to sign, deliver, and file any additional
documents or certifications that Lender may consider necessary to perfect, continue,
and preserve Mortgagor's obligations under this Security Instrument and Lender's lien
status on the Property.
24.JOINT AND INDIVIDUAL LIABILITY; CO-SIGNERS; SUCCESSORS AND ASSIGNS
BOUND. All duties under this Security Instrument are joint and individual. If
Mortgagor signs this Security Instrument but does not sign an evidence of debt,
Mortgagor does so only to mortgage Mortgagor's interest in the Property to secure
payment of the Secured Debt and Mortgagor does not agree to be personally liable
on the Secured Debt. If this Security Instrument secures a guaranty between Lender
and Mortgagor, Mortgagor agrees to waive any rights that may prevent Lender from
bringing any action or claim against Mortgagor or any party indebted under the
obligation. These rights may include, but are not limited to, any anti-deficiency or
one-action laws. Mortgagor agrees that Lender and any party to this Security
Instrument may extend, modify or make any change in the terms of this Security
Instrument or any evidence of debt without Mortgagor's consent. Such a change will
not release Mortgagor from the terms of this Security Instrument. The duties and
benefits of this Security Instrument shall bind and benefit the successors and assigns
of Mortgagor and Lender.
25.APPLICABLE LAW; SEVERABILITY; INTERPRETATION. This Security Instrument is
governed by the laws of the jurisdiction in which Lender is located, except to the
extent otherwise required by the laws of the jurisdiction where the Property is
located. Any provision that appoints Lender as an agent is not subject to the
provisions of 20 Pa.C.S.A. Section 5601 et seq. (Chapter 56; Decedents, Estates
and Fiduciaries Code). Lender, by exercising any of its rights under this Security
Instrument, does so for benefit of Lender. This Security Instrument is complete and
fully integrated. This Security Instrument may not be amended or modified by oral
agreement. Any section in this Security Instrument, attachments, or any agreement
related to the Secured Debt that conflicts with applicable law will not be effective,
unless that law expressly or impliedly permits the variations by written agreement. If
any section of this Security Instrument cannot be enforced according to its terms,
that section will be severed and will not affect the enforceability of the remainder of
this Security Instrument. Whenever used, the singular shall include the plural and the
(page 10 of 14)
15M 0 1894, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-REST-PA 1/1012003 --Y?
'4
plural the singular. The captions and headings of the sections of this Security
Instrument are for convenience only and are not to be used to interpret or define the
terms of this Security Instrument. Time is of the essence in this Security Instrument.
26-NOTICE. Unless otherwise required by law, any notice shall be given by delivering it
or by mailing it by first class mail to the appropriate party's address on page 1 of this
Security Instrument, or to any other address designated in writing. Notice to one
mortgagor will be deemed to be notice to all mortgagors.
27.WAIVERS. Except to the extent prohibited by law, Mortgagor waives any right to
appraisement relating to the Property.
28.WAIVER OF JURY TRIAL. To the extent not prohibited by law, Mortgagor and Lender
knowingly and intentionally waive the right, which the party may have, to a trial by
jury with respect to any litigation arising from the Secured Debt, or any other
agreement executed in conjunction with the Evidence of Debt and this Mortgage.
Mortgagor and Lender each acknowledge that this section has either been brought to
the attention of each party's legal counsel or that each party had the opportunity to
do so.
29.U.C.C. PROVISIONS. If checked, the following are applicable to, but do not limit, this
Security Instrument:
? Construction Loan. This Security Instrument secures an obligation incurred for
the construction of an improvement on the Property.
? Fixture Filing. Mortgagor grants to Lender a security interest in all goods that
Mortgagor owns now or in the future and that are or will become fixtures
related to the Property.
? Crops; Timber; Minerals; Rents, Issues and Profits. Mortgagor grants to Lender
a security interest in all crops, timber, and minerals located on the Property as
well as all rents, issues, and profits of them including, but not limited to, all
Conservation Reserve Program (CRP) and Payment in Kind (PIK) payments and
similar governmental programs (all of which shall also be included in the term
"Property").
? Personal Property. Mortgagor grants to Lender a security interest in all personal
property located on or connected with the Property, including all farm products,
inventory, equipment, accounts, documents, instruments, chattel paper,
general intangibles, and all other items of personal property Mortgagor owns
now or in the future and that are used or useful in the construction, ownership,
operation, management, or maintenance of the Property (all of which shall also
be included in the term "Property"). The term "personal property" specifically
excludes that property described as "household goods" secured in connection
with a "consumer" loan as those terms are defined in applicable federal
regulations governing unfair and deceptive credit practices.
lY 1 r I (page 11 of 14)
Ej(?j M O 1994, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESFPA 1/70!2003 ^\-?? ?)/vA-J (//cr?J
FORM 314
, c
? Filing As Financing Statement. Mortgagor agrees and acknowledges that this
Security Instrument also suffices as a financing statement and any carbon,
photographic or other reproduction may be filed of record for purposes of
Article 9 of the Uniform Commercial Code.
30.OTHER TERMS. If checked, the following are applicable to this Security Instrument:
? Line of Credit. The Secured Debt includes a revolving line of credit provision.
Although the Secured Debt may be reduced to a zero balance, this Security
Instrument will remain in effect until released.
? Agricultural Property. Mortgagor covenants and warrants that the Property will
be used principally for agricultural or farming purposes and that Mortgagor is an
individual or entity allowed to own agricultural land as specified by law.
? Purchase Money. This Security Instrument secures advances by Lender used in
whole or in part to acquire the Property. Accordingly, this Security Instrument,
and the lien hereunder, is and shall be construed as a purchase money
mortgage with all of the rights, priorities and benefits thereof under the laws of
the Commonwealth of Pennsylvania.
? Separate Assignment. The Mortgagor has executed or will execute a separate
assignment of leases and rents. If the separate assignment of leases and rents
is properly executed and recorded, then the separate assignment will supersede
this Security Instrument's "Assignment of Leases and Rents" section.
? Additional Terms.
"" (Page 12 of 141
O 1994, 2001 Berlkero Systems, Mc., St. Cloud, MN Form AGCO•IiESI-PA 1/10/2003
FORM 414
Bf 18$ ?G4976
r aI
SIGNATURES: By signing below, Mortgagor, intending to be
agrees to the terms and covenants contained in this Security
attachments. Mortgagor also acknowledges receipt of a
Instrument on the date stated on page 1.
Entity Name:
(Signature) (Date)
(Witness)
ACKNOWLEDGMENT:
Entity Name:
legally bound hereby,
Instrument and in any
copy of this Security
41141-a? 09/10/2004
1 ignat ) CATHY M WARMER (Date)
(Witness)
(Signature) (Date)
(Witness)
COMMONWEALTH OF A , CQUNTY OF I Oak ) ss.
clod ) On this, the day of %%'L , before me
the undersigned offi er, p rsonally appeared
vS?.1p ? t 1. 1 / r tLn _ - - I Q 44-4 _ ,M I A 1 'i r' i- known to the (or satisfactorily proven) to be t1% person(s) whose name(s) is
. rsubscribed to the within instrument, and acknowledged that he/she executed
tfe same for the purposes therein contained.
/r itness whereof, I hereunto set my hand and official seal.
. m nission expires:
'ILI
f J ?
< < rJ G?
?. mNo"Pdft
Adam Uu
AY CONY68iOt Expires OCL 7 ,2005
Title of Officer
O 1994, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESI-PA 1/10/2003 /page 13 of 14}
FORM 514 Mpg}
COMMONWEALTH OF , COUNTY OF
Business On this, the day of , before me
a>Wry , the undersigned officer, personally appeared
Acknowledp=)
who acknowledged himself/herself to be the of
and
that he/she as such being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of the by
as
In witness whereof, I hereunto set my hand and official seal.
My commission expires:
Title of Officer
It is hereby certified that the address of the Lender within named is:
ADAMS COUNTY NATIONAL BANK P-0. BOX 3129, GETTYSBTRf PA 17325
.'T
T Certify this to be recorded
In Cumberland County PA
EL
tit„ }
Recorder of Deeds
r l (page 14 of 141
® 1994, 2001 Bankers Systems, Ina., St. Cloud, MN Form AGCO-RESI-PA 1/10/2003 J 1Y
) ss.
t
nv.
! $8 1 PG4 978
JOSEPH,K WARNER
CATHY R WARNER
1`745 COUNTY LINE RD
YORK SPRINGS PA 17372
BORROWER'S NAME AND ADDRESS
"I" includes each borrower above, Jointly and at
ADAMS COUNTY NATIONAL BANK
PO BOX 3129
GETTYSBURG PA 17325
LENDER'S NAME AND ADDRESS
"You" means the lender, its successors and assigns.
Loan Number
Date SEPTEMBER 10 2004
Maturity Date SEPT. 10 2019
Loan Amount $ 100,000-0-0
Renewal Of 618565703062
661936, 600115577
For value received, I promise to pay to you, or your order, at your address listed above the PRINCIPAL sum of
ONE HUNDRED THOUSAND AND 00/100 Dollars $ 100. 000.00
EISingls Advance: I will receive all of this principal sum on _ 09/10/2004 . No additional advances are contemplated under this note.
? Multiple Advance: The principal sum shown above Is the maximum amount of principal I can borrow under this rote. On N/A
I will receive the amount of $ N/A and future principal advances are contemplated.
Conditions: The conditions for future advances are
? Open End Credit: You and I agree that I may borrow up to the maximum amount of principal more than one time. This feature is subject to
all other conditions and expires on N/A
? Closed End Credit: You and I agree that I may borrow up to the maximum only one time (and subject to all other conditions).
INTEREST: 1 agree to pay interest on the outstanding principal balance from 09/10/2004 at the rate of 7.000 %
? per year until XT RATE CHANGE DATE
kiVariable Rate: This rate may then change as stated below. HIGHEST BASS RATE ON CORPORATE LOANS AT
Index Rate: The future rate will be 2,000 t ABOVE the following index rate:
aRga U.S. Ho my CENTER COMMERCrar BPI= THAT THE mars. aTREtrr .mrntma7. ormt.I=S AS THE PRIME RATE.
? No Index: The future rate will not be subject to any Internal or external index. It will be entirely in your control.
Ei Frequency and Timing: The rate on this note may change as often as DAILY
A change In the Interest rate will take effect ON THE SAME DAY
? Limitations: During the term of this loan, the applicable annual interest rate will not be more than N/A % or less then
N/A %. The rate may not change more than % each
Effect of Variable Rate: A change in the interest rate will have the following effect on the payments:
The amount of each scheduled payment will change. ? The amount of the final payment will change.
ACCRUAL METHOD: Interest will be calculated on a SIMPLE INTEREST PER ANNUM basis.
POST MATURITY RATE: 1 agree to pay interest on the unpaid balance of this note owing after maturity, and until paid in full, as stated below:
? on the same fixed or variable rate basis In effect before maturity (as Indicated above).
Ri at a rate equal to 4.000 V above the highest prime rate published in the Wall Street Journal's listing of money rates
®C LATE CHARGE: If a payment is made more than 015 days after it is due, I agree to pay a late charge of 3,000 $ OF THE
PAYMENT AMOUNT OR S 20.00 WHICHEVER IS GREATER
RETURNED CHECK CHARGE: I agree to pay a fee of $ _ 35. 00 for each check, negotiable order of withdrawal or draft I issue in
connection with this loan that is returned because it has been dishonored.
? ADDITIONAL CHARGES: In addition to interest, I agree to pay the following charges which ? are ?are not included in the principal amount
above:
PAYMENTS: 1 agree to pay this note as follows:
? Interest: I agree to pay accrued interest
? Principal: I agree to pay the principal
®Clnstallmartts: 1 agree to pay this note in 180 payments. The first payment will be in the amount of $ 898.94
and will be due OCTOBER 10 , 2004 A payment of $ 898.94 will be due
MONTHLY thereafter. The final payment of the entire
unpaid balance of principal and interest will be due SEPTEMBER 10 . 2019
ro CONFESS JUDGMENT. Upon default, in addition to all other remedies and rights available to you, by signing
rizes the prothonotary, clerk, or any attorney to appear in any court of record having jurisdiction over this matter
me at any time without stay of execution. I waive notice service of process and process. 1 agree and understand
against me for any unpaid principal, accrued interest and accrued charges due on this note, plus collection costs
) to 15 percent of the judgment. The exercise of the power to confess judgment will not exhaust this warrant of
i may be done es often as you elect. I further understand that my property may be seized without prior notice to
y intentionally and voluntarily waive any and all constitutional rights 1 have to pre-deprivation notice and hearing
i7jly un er and the cons quen as of this waiver.
TERMS:
i ne imnai interest rate will De nxea ror me r ast rive to) years Etter wnlcn it will DCCOme a vanaDie rate. i fie
next rate change date will be September 10, 2009. By this reference, herein incorporated are additional loan terms, provisions,
covenants and conditions that are contained in a related commitment letter dated September 8, 2004.
PURPOSE: The purpose of this loan is REFINANCE ACNB LOANS 8661936. 600115572,t
618565703062 SIGNATURES: I AGREE TO THE TERMS OF THIS NOTE (INCLUDING
19 SECURITY: This note is separately secured by (describe separate THOSE ON PAGE 2). 1 have received a copy on today's date.
document by type and date):
MORTGAGES DATED SEPTEMBER 10, 2004
(This section is for your internal use. Failure to list s sekwate security docu nern does not msen the J EPH K WARNER
agr..mant wall not secure this note.)
Signature for Lender
CATHY WARNER
FORK 4 UNIVERSAL NOTE
sue. "?Trf? nD n
15mj ? 0 1984, 1991 Bankers Systems, Inc., St. Cloud, MN Form UN-PA 3n12002 +??++-?+11 D (page r of 2/
DEFINITIONS: As used on page 1, "®" mean ) terms that apply to
this loan. '1,' "me" or "my" means each Borrq who signs this note
and each other person or legal entity lincluding guarantors, endorsers,
and sureties) who agrees to pay this note (together referred to as "us").
"You' or 'your' means the Lender and Its successors and assigns.
APPLICABLE LAW: The law of the state of Pennsylvania will govern this
note. Any term of this noie which is contrary to applicable law will not be
effective, unless the law permits you and me to agree to such a variation.
If any provision of this agreement cannot be enforced according to Its
terms, this fact will not affect the enforceability of the remainder of this
agreement. No modification of this agreement may be made without your
express written consent. Time is of the essence in this agreement. Any
provision that appoints you as an agent is not subject to the provisions of
20 Pa.C.S.A. Section 5601 at seq. (Chapter 56; Decedents, Estates and
Fiduciaries Code). By exercising any of your rights under this note, you do
so for your sole benefit.
COMMISSIONS OR OTHER REMUNERATION: I understand and agree that
any insurance premiums paid to insurance companies as part of this note
will involve money retained by you or paid back to you as commissions or
other remuneration.
In addition, I understand and agree that some other payments to third
parties as part of this note may also involve money retained by you or
paid back to you as commissions or other remuneration.
PAYMENTS: Each payment I make on this note will first reduce the
amount I owe you for charges which are neither interest nor principal.
The remainder of each payment will then reduce accrued unpaid interest,
and then unpaid principal. If you and I agree to a different application of
payments, we will describe our agreement on this note. I may prepay a
pert of, or the entire balance of this loan without penalty, unless we
specify to the contrary on this note. Any partial prepayment will not
excuse or reduce any later scheduled payment until this note is paid in full
(unless, when I make the prepayment, you and I agree in writing to the
contrary).
INTEREST: Interest accrues on the principal remaining unpaid from time
to time, until paid in full. If I receive the- principal in more than one
advance, each advance will start to earn interest only when 1 receive the
advance. The interest rate in effect on this note at any given time will
apply to the entire principal advanced at that time. Notwithstanding
anything to the contrary, I do not agree to pay and you do not Intend to
charge any rate of interest that is higher than the maximum rate of
interest you could charge under applicable law for the extension of credit
that is agreed to here (either before or after maturity). If any notice of
Interest accrual is sent and is in error, we mutually agree to correct it,
and if you actually collect more interest than allowed by law and this
agreement, you agree to refund it to me.
INDEX RATE: The index will serve only as a device for setting the rate on
this note. You do not guarantee by selecting this index, or the margin,
that the rate on this note will be the same rate you charge on any other
loans or class of loans to me or other borrowers.
ACCRUAL METHOD: The amount of Interest that I will pay on this loan
will be calculated using the interest rate and accrual method stated on
page 1 of this note. For the purpose of interest calculation, the accrual
method will determine the number of days in a "year.' If no accrual
method is stated, then you may use any reasonable accrual method for
calculating interest.
POST MATURITY RATE: For purposes of deciding when the "Post
Maturity Rate" (shown on page 1) applies, the term 'maturity" means the
earliest of the following:
(a) the date of the last scheduled payment indicated on page 1 of this
note;
(b) the date you accelerate payment on the note; or
(c) after the entry of judgment on this note by confession or otherwise
and applies to amounts owed under this note on any such
judgment until paid in full.
SINGLE ADVANCE LOANS: If this is a single advance loan, you and I
expect that you will make only one advance of principal. However, you
may add other amounts to the principal if you make any payments
described in the "PAYMENTS BY LENDER" paragraph below.
MULTIPLE ADVANCE LOANS: If this is a multiple advance loan, you and 1
expect that you will make more than one advance of principal. If this is
closed end credit, repaying a part of the principal will not entitle me to
additional credit.
ADVANCE PROCEDURE AND MEANS: You will advance the ban
proceeds by way of check, cash, wire transfer, credit to an account or
any combination as You and I agree. The advance(s) will occur upon
consummation of the loan and as You and I agree, except that no
advancels) will occur until after three business days from the date of
consummation if the loan is rescindable pursuant to Regulation Z (12
C.F.R. § 226).
PAYMENTS BY LENDER: If you are authorized to pay, on my behalf,
charges I am obligated to pay (such as property insurance premiums),
then you may treat those payments made by you as advances and add
them to the unpaid principal under this note, or you may demand
immediate payment of the charges.
SET-OFF: I agree that you may set off any amount due and payable under
this note against any right I have to receive money from you.
"Right to receive money from you" means:
(1) any deposit account balance I have with you;
(2) any money owed to me on an item presented to you or in your
possession for collection or exchange; and
(3) any repurchase agreement or other nondeposit obligation.
Any amount due and payable under this note" means the total
amount of which you are entitled to demand payment under the terms of
this note at the time you set off. This total includes any balance the due
date for which you properly accelerate under this note.
If my right to receivr ney from you is also owned by someone who
has not agreed to pay note, your right of setoff will apply to my
interest In the obligatior. ; nd to any other amounts I could withdraw on
my sole request or endorsement. Your right of setoff does not apply to
an account or other obligation where my rights are only as a
representative. It also does' not apply to any Individual Retirement
Account or other tax-deferred retirement account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set off this debt against any of my accounts. 1 agree
to hold you harmless from any such claims arising as a result of your
exercise of your right of setoff.
REAL ESTATE OR RESIDENCE SECURITY: If this note is secured by real
estate or a residence that is personal property, the existence of a default
and your remedies for such a default will be determined by applicable
law, by the terms of any separate instrument creating the security
interest and, to the extent not prohibited by law and not contrary to the
terms of the separate security instrument, by the "Default* and
"Remedies" paragraphs herein.
DEFAULT: I will be in deteult if any one or more of the following occur:
(1) 1 fall to make a payment on time or in the amount due; (2) 1 tail to
keep the property insured, if required; (3) 1 fall to pay, or keep any
promise, on any debt or agreement I have with you; (4) any other creditor
of mine attempts to collect any debt I owe him through court pro-
ceedings; (5) 1 die, am declared incompetent, make an assignment for the
benefit of creditors, or become insolvent (either because my liabilities ex-
ceed my assets or I am unable to pay my debts as they become due); (6)
1 make any written statement or provide any financial information that is
untrue or Inaccurate at the time it was provided; (7) 1 do or fail to do
something which causes you to believe that you will have difficulty
collecting the amount I owe you; (8) any collateral securing this note is
used in a manner or for a purpose which threatens confiscation by a legal
authority; (9) 1 change my name or assume an additional name without
first notifying you before making such a change; (10) 1 fail to plant, culti-
vate and harvest crops in due season; 111) any loan proceeds are used
for a purpose that will contribute to excessive erosion of highly erodible
land or to the conversion of wetlands to produce an agricultural commod-
ity, as further explained in 7 C.F.R. Pert 1940, Subpart G, Exhibit M.
REMEDIES: If 1 am in default on this note you have, but are not limited to,
the following remedies:
11) You may demand Immediate payment of all 1 owe you under this
note (principal, accrued unpaid interest and other accrued charges).
121 You may set off this debt against any right I have to the payment
of money from you, subject to the terms of the "Set-Off"
paragraph herein.
(3) You may demand security, additional security, or additional parties
to be obligated to pay this note as a condition for not using any
other remedy.
(4) You may refuse to make advances to me or allow purchases on
credit by me.
(5) You may use any remedy you have under state or federal law.
By selecting any one or more of these remedies you do not give up
your right to later use any other remedy. By waiving your right to declare
an event to be a default, you do not waive your right to later consider the
event as a default if It continues or happens again.
COLLECTION COSTS AND ATTORNEY'S FEES: I agree to pay all costs of
collection, replevin or any other or similar type of cost if I am in default.
In addition, if you hire an attorney to collect this note, I also agree to pay
any fee you incur with such attorney plus court costs (except where
prohibited by low). To the extent permitted by the United States
Bankruptcy Code, I also agree to pay the reasonable attorney's fees and
costs you incur to collect this debt as awarded by any court exercising
jurisdiction under the Bankruptcy Code.
WAIVER: 1 give up my rights (to the extent permitted by law) to require
you to do certain things. I will not require you to:
11) demand payment of amounts due (presentment);
12) obtain official certification of nonpayment (protest); or
(3) give notice that amounts due have not been paid (notice of
dishonor).
1 waive any defenses 1 have based on suretyship or impairment of
collateral.
OBLIGATIONS INDEPENDENT: I understand that I must pay this note
even if someone else has also agreed to pay It (by, for example, signing
this form or a separate guarantee or endorsement). You may sue me
alone, or anyone else who is obligated on this rate, or any number of us
together, to collect this note. You may do so without any notice that it
has not been paid (notice of dishonor). You may without notice release
any party to this agreement without releasing any other party. If you give
up any of your rights, with or without notice, it will not affect my duty to
pay this note. Any extension of new credit to any of us, or renewal of
this rote by all or less than all of us will not release me from my duty to
pay it. (Of course, you are entitled to only one payment in full.) I agree
that you may at your option extend this rate or the debt represented by
this note, or any portion of the note or debt, from time to time without
limit or notice and for any term without affecting my liability for payment
of the note. I will not assign my obligation under this agreement without
your prior written approval.
FINANCIAL INFORMATION: I agree to provide you, upon request, any
financial statement or information you may deem necessary. I warrant
that the financial statements and information I provide to you are or will
be accurate, correct and complete.
NOTICE: Unless otherwise required by law, any notice to me shell be
given by delivering it or by mailing it by first class mail addressed to me
at my last known address. My current address is on page 1. 1 agree to
inform you in writing of any change in my address. I will give any notice
to you by mailing it first class to your address stated on page 1 of this
agreement, or to any other address that you have designated.
DATE OF
TRANSACTION PRINCIPAL
ADVANCE BORROWER'S
INITIALS
Inot rewired) PRINCIPAL
PAYMENTS PRINCIPAL
BALANCE INTEREST
RATE INTEREST
PAYMENTS INTEREST
PAID
THROUGH:
S S 9 % S
$ 9 S % S
$ $ $ % $
$ $ $ % $
$ S $ % $
$ S S % $
$ $ $ % $
$ $ $ % S
1 $ S $ % 8
$ S S % 8
6C-r "" 0 1984, 1991 Bwkus Systems, Inc., St. Ckwd, MN Form UN-PA 317/2002
?/ (page n2 _0? 2I