HomeMy WebLinkAbout11-5839McCARTER & ENGLISH, LLP
By: Rosetta B. Packer, Esq.
Christine L. Barba, Esq.
Philip D. Amoa, Esq.
Identification Nos. 28357, 206938, 310593
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
Attorneys for Plaintiff,
Wells Fargo Bank, National Association
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WELLS FARGO BANK, NATIONAL
ASSOCIATION, successor-by-merger to
Wachovia Bank, National Association
123 S. Broad Street
Philadelphia, PA 19109
Plaintiff,
vs.
HENRY L. STETLER
853 Englesville Hill Road
Boyertown, PA 19504
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 11-58 0iVii7eirm
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 an 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 or any other claim or
relief requested by the plaintiff. You may lose money or property 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:
Lawyer Referral Service
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
Telephone: 717-249-3166
ME 1 11957157v.5
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McCARTER & ENGLISH, LLP
By: Rosetta B. Packer, Esq.
Christine L. Barba, Esq.
Philip D. Amoa, Esq.
Identification Nos. 28357, 206938, 310593
Mellon Bank Center
Attorneys for Plaintiff,
Wells Fargo Bank, National Association
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
WELLS FARGO BANK, NATIONAL
ASSOCIATION, successor-by-merger to
Wachovia Bank, National Association
123 S. Broad Street
Philadelphia, PA 19109
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff,
vs.
NO.
HENRY L. STETLER
853 Englesville Hill Road
Boyertown, PA 19504
Defendant.
COMPLAINT IN MORTGAGE FORECLOSURE
Plaintiff, Wells Fargo Bank, National Association, successor-by-merger to Wachovia
Bank, National Association (the "Bank"), by and through its undersigned counsel, McCarter &
English, LLP, and by way of Complaint in Mortgage Foreclosure, avers as follows:
The Bank is a national banking association with offices located at 123 South
Broad Street, Philadelphia, Pennsylvania 19109.
2. Defendant Henry L. Stetler ("Defendant") is an adult individual with an address at
853 Englesville Hill Road, Boyertown, PA 19504.
ME] 11957157v.5 2
3. Defendant is the owner of record of a certain parcel of real property located at 150
Silver Spring Road, Mechanicsburg, in the Township of Hampden, Cumberland County,
Commonwealth of Pennsylvania (the "Property").
4. The full legal description of the Property is set forth in Exhibit A, attached hereto
and incorporated herein by reference.
On or about August 7, 2007, the Defendant executed and delivered to the Bank a
certain Promissory Note dated August 7, 2007, in the original principal amount of One Million
Seven Hundred Thousand ($1,700,000) Dollars (the "Original Note").
6. A true and correct copy of the Original Note is attached hereto at Exhibit B.
The terms and conditions of the Original Note were modified and extended, as set
forth in that certain Modification Number One to Promissory Note dated September 22, 2008
(the "First Modification").
8. A true and correct copy of the First Modification is attached hereto at Exhibit C.
9. The terms and conditions of the Original Note, as modified by the First
Modification, were further modified and extended as set forth in that certain Modification
Number Two to Promissory Note dated January 30, 2009 (the "Second Modification")
10. A true and correct copy of the Second Modification is attached hereto at Exhibit
D.
11. The terms and conditions of the Original Note, the First Modification and the
Second Modification were further modified and extended as set forth in that certain Third
Modification to Promissory Note dated March 8, 2010 (the "Third Modification").
12. A true and correct copy of the Third Modification is attached hereto at Exhibit E.
ME I 11957157v.5
13. The Original Note, the First Modification, the Second Modification and the Third
Modification are collectively referred to herein as the "Note."
14. In consideration of and as security for his obligations under the Note, Defendant
executed and delivered to the Bank a certain Open-End Mortgage and Assignment of Rents dated
August 7, 2007, and recorded on August 15, 2007, in the Office of the Recorder of Deeds of
Cumberland County, Pennsylvania as Instrument No. 200732055 (the "Mortgage")
15. A true and correct copy of the Mortgage is attached hereto at Exhibit F.
16. The Mortgage granted Bank a lien upon the Property in the principal amount of
$1,700,000, plus interest, costs and fees.
17. The Note and the Mortgage are collectively referred to herein as the "Loan
Documents."
The Default and Forbearance Agreements
18. The Bank and the Defendant made certain modifications to the Loan Documents,
as set forth in that certain First Extension of Forbearance Agreements dated July 13, 2010 (the
"First Extension")
19. A true and correct copy of the First Extension is attached hereto at Exhibit G.
20. The Bank and the Defendant agreed to further modify and extend the terms of the
Loan Documents and the First Extension, as set forth in that certain Second Extension of
Forbearance Agreements dated December 30, 2010 (the "Second Extension")
21. A true and correct copy of the Second Extension is attached hereto at Exhibit H.
22. In connection with the Second Extension, the Defendant executed and delivered
to the Bank that certain First Allonge to Promissory Note dated as of December 30, 2010 (the
"Allonge").
ME 1 11957157v.5 4
23. A true and correct copy of the Allonge is attached hereto at Exhibit I.
24. The First Extension, the Second Extension and the Allonge are collectively
referred to herein as the "Forbearance Documents."
25. In connection with the Forbearance Documents, the Defendant acknowledged and
reaffirmed, inter alia, that Defendant is absolutely liable for the repayment of all principal,
interest, costs, appraisal fees, the Bank's reasonable attorneys' fees, and all other outstanding
obligations under the Loan Documents and the Forbearance Documents (collectively, the
"Obligations"). See Exhibit G at §§ D, 1.3, 2. 1, and 2.2; and Exhibit H at §§ 1.2, 2.1 and 2.2.
26. In connection with the Forbearance Documents, the Defendant acknowledged and
reaffirmed, inter alia, that the Mortgage secures the full amount of the Obligations. See Exhibit
G at § § 1. 1, 2. 1, and 2.2; and Exhibit H at § § 2.1 and 2.2.
27. Pursuant to the terms of the Forbearance Documents, interest shall accrue on the
unpaid principal balance of the Note at the rate of Eight (8%) percent per annum (the
"Forbearance Rate"). See Exhibit G at § 3.2.1; Exhibit H at § 3.3; Exhibit I at § 3.
28. Pursuant to the terms of the Forbearance Documents, upon the occurrence of an
event of default thereunder, interest shall accrue at the Forbearance Rate plus Five (5%) percent
per annum (the "Default Rate"). See Exhibit G at §§ 3.2.2, 5.2.2; Exhibit H at §§ 3.3, 5.2.2;
Exhibit I at § 4
29. Pursuant to the terms of the Loan Documents, the Bank is entitled to collect a late
charge of Five (5%) percent of any payment past due to ten (10) or more days. See Exhibit B at
page 2.
ME J 11957157v.5 5
30. Pursuant to the terms of the Mortgage and the Forbearance Documents, the
Defendant is liable to the Bank for the costs of appraisals and environmental investigations of the
Property. See Exhibit F at pages 4-5; Exhibit G at §§ 1.3.3, 2.1; Exhibit H at §§ 1.2.3, 2.1.
31. Pursuant to the terms of the Forbearance Documents, the Defendant was
obligated, inter alia, to repay the outstanding balance of the Obligations in full on or before
February 28, 2011. See Exhibit H at §§ 3.4, 3.7; Exhibit I at § 2.
32. The Defendant failed to repay the Obligations in full on or before February 28,
2011 (the "Default")
33. The Defendant's failure to repay the Obligations in full on or before February 28,
2011 constitutes a Default under the Mortgage, the other Loan Documents and the Forbearance
Documents. See Exhibit F at page 7; Exhibit H at § 5.1.1.
34. As a result of the Default, and in accordance with the terms of the Forbearance
Documents, all sums outstanding under the Loan Documents and the Forbearance Documents
are immediately due and payable. Id. at § 5.2.1.
35. By letter dated March 4, 2011, the Bank notified the Defendant of the Default and
that the outstanding balance of the Obligations were immediately due and payable. A true and
correct copy of the Bank's March 4, 2011 letter is attached hereto at Exhibit J.
36. As a result of the Default, the following sums are immediately due and owing to
Bank for principal, interest, costs and fees:
ME] 11957157v.5 6
Principal $1,579,946.39
Interest (as of Jul 19, 2011) 122,805.17
Late Charges 1,418.37
Subtotal: $1,704,169.93
Appraisal Fees 4,320.00
Actual Attorneys' Fees and Costs
(as of Jul 19, 2011): $38,288.92
Filing Fees: 92.00
37. In addition to the amounts set forth above, pursuant to the terms of the Loan
Documents, the Bank is entitled to continuing interest from and after July 20, 2011, at the
Default Rate, continuing attorneys' fees and costs, and such other and further costs and advances
as the Bank may be required to make during the course of this action for the protection and
security of the Property, including without limitation costs associated with further appraisals and
environmental investigations of the Property.
38. Notice pursuant to the provisions of 35 P.S. §1680.401 c, et seq., is not required as
the Property is not a principal residence in the Commonwealth of Pennsylvania.
39. Notice pursuant to the provisions of 41 P. S. §401, et seq., is not required as the
original principal amount of the Note is in excess of $217,873.
WHEREFORE, plaintiff, Wells Fargo Bank, N.A., successor-by-merger to Wachovia
Bank, N.A., respectfully demands that a Judgment in Mortgage Foreclosure be entered in its
favor and against defendant, Henry Stetler, in the amount of $1,746,870.85, plus continuing
ME 1 11957157v.5 7
interest at the Default Rate from and after July 20, 2011, continuing attorneys fees and costs,
continuing costs and expenses related to the protection and security of the Property, continuing
expenses and costs of suit, and for the foreclosure and sale of the Property.
Date: July 20, 2011
spectfully submitted
A d-ek' ??
osetta B. Packer-,-sq.
Christine L. Barba, Esq.
Philip D. Amoa, Esq.
Identification Nos.: 28357, 206983, 310593
MCCARTER & ENGLISH, LLP
Mellon Bank Center
1735 Market Street, Suite 700
Philadelphia, PA 19103
Phone: (215) 979-3800
Fax: (215) 979-3899
Attorneys for Plaintiff,
Wells Fargo Bank, N.A.
ME 1 11957157v.5
VERIFICATION
I, Charles B. Cook, Senior Vice President of Wells Fargo Bank, National Association,
successor-by-merger to Wachovia Bank, National Association (the "Bank"), hereby verify that
the statements made in this Complaint are true and correct to the best of my knowledge,
information, and belief. I further verify that I am authorized to make this Verification on behalf
of the Bank. I understand that false statements herein are subject to the penalties in 18 Pa. C.S.A.
§ 4904 relating to unsworn falsification to authorities.
- 6 1
Charles B. Cook
Senior Vice President, Wells Fargo Bank, N.A.
ME1 11957157v.5
7 YO f 51 1 -r,
I
First American Title Insurance Company
Commitment No. RP-5728
SCHEDULE C
Legal Description
(continued)
TRACT NO. THREE - HAPMEN AND SILVER SPRING TOWNSHIPS:'
Beginning at an iron pin located at the southeastern corner of lands now or for merly of Donald Braun,
which pin is also at the northeastern corner of lands now or formerly of Universa l) Suppliers Realty, Inc.,;
thence eastwardly along lands now or formerly of William R. Foust and Arlen V. Foust, North seventy
degrees fifty-four minutes forty-eight seconds East, a distance of one hundr sixty-five and thirteen
hundredths (165.13) feet to a point; thence along the same, South forty-sic de em two minutes thirty-
four seconds East, thirty-one and eighty-nine hundredths (31.89) feet to a point ? thence along the same,
South nine degrees four minutes twenty-seven seconds West, thane hundred se mrity-five and fifty-nine
hundredths (375.59) feet to a point at the northeastern corner of lands now or f ly of John B. Sieck;
thence along the northern line of said lands of Sieck, South seventy-three twenty-four minutes
forty-nine seconds West, fifty-six and seventy-four hundredths (56.74) fed to a int on the northern line
of the aforementioned lands now or formerly of Universal Suppliers Realty, Inc thence along the sane,
North nine degrees two minutes two seconds West, two hundred seventy-cig -A and sixty hundredths
(278.60) feet to a point; thence along the same, North fifteen degrees seven mi tes fifty seconds West,
eighty-two and ninety-five hundredths (82.95) feet to an iron pin, the place of be inning. Being Lot No. 2
on the Final Subdivision Plan for William Foust prepared by C.W. Junkins Assoc., Inc., registered
surveyor, dated July 28, 1989(Final revision February 16, 1990) and recorded in uniberland County Plan
Book 60 at Page 65.
UNDER. AND SUBJECT to existing building restrictions, township ordinances, senerrts and rights-of-
way of roads, privileges or rights of public service companies, casements or .ctions of record and
visible upon the premises and such easements, rights-of-way, setback lines, ctions and covenants as
appear on the aforementioned Final Subdivision Plan of Lot No. 2, which plan is Ontended to be recorded;
and
FURTHER, UNDER AND SUBJECT to the reservation by William R. Foust ar?d Arlene V. Foust of an
casement or right-of way, without limitation, ova, along, across and through) the parcel hereinabove
described for the benefit of Fousts, their heirs, administrators„ executors, suce , assigns, tenants,
subtenants and any and all persons or entities who may now or hereafter bet owners or occupiers of
other lands now owned by Fousts of which the hereinabove described tract formerly fanned a part or any
part or portion thereof, and for the benefit of the guests, customers, invitees or visitors of any or all of
them, for the purposes of access, ingress and regress for any purpose from an to the other lands now
owned by Fousts of which the hereinabove described tract formerly formed a pa rt or any part or portion
thereof from and to that certain highway or roadway known as the Silver Sprat Road (L.R. 21051) as
said highway or roadway is now or may hereafter be located
BEING Parcel No. 10-20-1838-037A
BEING the same premises which Universal Suppliers Realty, Inc., A PA Busin s Corporation by Deed
dated September 5, 19% and recorded September 27, 1996 in the Office for the R]pcorder of Deeds in and
for Cumberland County in Deed Book 146 page 688, granted and conveyed unto glas W. George and
Kimberly A. George, husband and wife, in fee.
PA-3
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PROMISSORY NOTE
$1,700,000.00
August 7, 2007
Henry L. Stetler
853 Englesville Hill Road
Boyertown, Pennsylvania 19512
(Hereinafter referred to as "Borrower")
Wachovia Bank, National Association
Philadelphia, Pennsylvania 19109
(Hereinafter referred to as "Bank")
Borrower promises to pay to the order of Bank, in lawful money of the United States of America by mailing
to the address specified hereinafter or wherever else Bank may specify, the sum of One Million, Seven
Hundred Thousand and No/100 Dollars ($1,700,000.00) or such sum as may be advanced and
outstanding from time to time, with interest on the unpaid principal balance at the rate and on the terms
provided in this Promissory Note (including all renewals, extensions or modifications hereof, this "Note").
TERM LOAN (WITH DRAW PERIOD). From the date of this Note until and including August 7, 2008 (the
"Conversion Date"), Borrower may borrow and, upon the request of Borrower, Bank shall advance under
this Note from time to time (each an "Advance" and together the "Advances"), so long as the total
principal balance outstanding at any one time does not exceed the principal amount stated on the face of
this Note, subject to the limitations described in any loan agreement to which this Note is subject. Bank's
obligation to make Advances under this Note shall terminate if Borrower is in Default under this Note. As
of the date of each proposed Advance, Borrower shall be deemed to represent that each representation
made in the Loan Documents is true as of such date. Advances, once repaid, may not be reborrowed.
USE OF PROCEEDS. Borrower shall use the proceeds of the loan(s) evidenced by this Note for the
commercial purposes of Borrower, as follows: purchase owner occupied real estate.
SECURITY. (a) Borrower has granted Bank a security interest in the collateral described in the Loan
Documents, including, but not limited to, real and personal property collateral described in that certain
security instrument of even date herewith. (b) Stetler Service Corporation has granted Bank a security
interest in the collateral described in the Loan Documents, including, but not limited to, real and personal
property collateral described in that certain security instrument of even date herewith.
INTEREST RATE. Interest shall accrue on the unpaid principal balance of this Note from the date hereof
at the rate of 7.75% ("Interest Rate").
DEFAULT RATE. In addition to all other rights contained in this Note, if a Default (as defined herein)
occurs and as long as a Default continues, all outstanding Obligations, other than Obligations under any
swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) between Borrower and
Bank or its affiliates, shall bear interest at the Interest Rate plus 3% ("Default Rate"). The Default Rate
shall also apply from demand until the Obligations or any judgment thereon is paid in full.
INTEREST AND FEES(S) COMPUTATION (ACTUAL/360). Interest and fees, if any, shall be computed
on the basis of a 360-day year for the actual. number of days in the applicable period ("Actual/360
Computation"). The Actual/360 Computation determines the annual effective yield by taking the stated
(nominal) rate for a year's period and then dividing said rate by 360 to determine the daily periodic rate to
be applied for each day in the applicable period. Application of the Actual/360 Computation produces an
annualized effective rate exceeding the nominal rate.
535NO (Rev 26.0) WPS11476819585001 CDCNOTEXXX Note.doc
CNOTE
PREPAYMENT ALLOWED. This Note may be prepaid in whole or in part at any time. Any prepayment
shall include accrued interest and all other sums then due under any of the Loan Documents (as defined
below). No partial prepayment shall affect Borrower's obligation to make any payment of principal or
interest due under this Note on the date specified below in the Repayment Terms paragraph of this Note
until this Note has been paid in full.
REPAYMENT TERMS. This Note shall be due and payable as set forth hereinafter. From the date of
this Note until and including the Conversion Date, this Note shall be payable in consecutive monthly
payments of accrued interest only, commencing on September 7, 2007, and continuing on the same day
of each month thereafter. After the Conversion Date, this Note shall be payable in consecutive equal
monthly payments of principal and interest in an amount equal to $14,074.15, commencing on
September 7, 2008, and continuing on the same day of each month thereafter. In any event, all principal
and accrued interest shall be due and payable on August 7, 2013.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for application toward
payment of the Obligations shall be applied to accrued interest and then to principal. If a Default occurs,
monies may be applied to the Obligations in any manner or order deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan Documents is rescinded, avoided or for
any reason returned by Bank because of any adverse claim or threatened action, the returned payment
shall remain payable as an obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
DEFINITIONS. Loan Documents. The term "Loan Documents", as used in this Note and the other Loan
Documents, refers to all documents executed in connection with or related to the loan evidenced by this
Note and any prior notes which evidence all or any portion of the loan evidenced by this Note, and any
letters of credit issued pursuant to any loan agreement to which this Note is subject, any applications for
such letters of credit and any other documents executed in connection therewith or related thereto, and
may include, without limitation, a commitment letter that survives closing, a loan agreement, this Note,
guaranty agreements, security agreements, security instruments, financing statements, mortgage
instruments, any renewals or modifications, whenever any of the foregoing are executed, but does not
include swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time). Obligations.
The term "Obligations", as used in this Note and the other Loan Documents, refers to any and all
indebtedness and other obligations under this Note, all other obligations under any other Loan
Document(s), and all obligations under any swap agreements (as defined in 11 U.S.C. § 101, as in effect
from time to time) between Borrower and Bank, or its affiliates, whenever executed. Certain Other
Terms. All terms that are used but not otherwise defined in any of the Loan Documents shall have the
definitions provided in the Uniform Commercial Code.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to Bank a late charge
equal to 5% of each payment past due for 10 or more days. This late charge shall not apply to payments
due at maturity or by acceleration hereof, unless such late payment is in an amount not greater than the
highest periodic payment due hereunder.
Acceptance by Bank of any late payment without an accompanying late charge shall not be deemed a
waiver of Bank's right to collect such late charge or to collect a late charge for any subsequent late
payment received.
If this Note is secured by owner-occupied residential real property located outside the state in which the
office of Bank first shown above is located, the late charge laws of the state where the real property is
located shall apply to this Note and the late charge shall be the highest amount allowable under such
laws. If no amount is stated thereunder, the late charge shall be 5% of each payment past due for 10 or
more days.
535NO (Rev 26.0) Page 2
Note.doc
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's reasonable
expenses actually incurred to enforce or collect any of the Obligations including, without limitation,
reasonable arbitration, paralegals', attorneys' and experts' fees and expenses, whether incurred without
the commencement of a suit, in any trial, arbitration, or administrative proceeding, or in any appellate or
bankruptcy proceeding.
USURY. If at any time the effective interest rate under this Note would, but for this paragraph, exceed the
maximum lawful rate, the effective interest rate under this Note shall be the maximum lawful rate, and any
amount received by Bank in excess of such rate shall be applied to principal and then to fees and
expenses, or, if no such amounts are owing, returned to Borrower.
DEFAULT. If any of the following occurs, a default ("Default") under this Note shall exist: Nonpayment;
Nonperformance. The failure of timely payment or performance of the Obligations or Default under this
Note or any other Loan Documents. False Warranty. A warranty or representation made or deemed
made in the Loan Documents or furnished Bank in connection with the loan evidenced by this Note
proves materially false, or if of a continuing nature, becomes materially false. Cross Default. At Bank's
option, any default in payment or performance of any obligation under any other loans, contracts or
agreements of Borrower, any Subsidiary or Affiliate of Borrower, any general partner of or the holder(s) of
the majority ownership interests of Borrower with Bank or its affiliates ("Affiliate" shall have the meaning
as defined in 11 U.S.C. § 101, as in effect from time to time, except that the term "Borrower" shall be
substituted for the term "Debtor" therein; "Subsidiary" shall mean any business in which Borrower holds,
directly or indirectly, a controlling interest). Cessation; Bankruptcy. The death of, appointment of a
guardian for, dissolution of, termination of existence of, loss of good standing status by, appointment of a
receiver for, assignment for the benefit of creditors of, or commencement of any bankruptcy or insolvency
proceeding by or against. Borrower, its Subsidiaries or Affiliates, if any, or any general partner of or the
holder(s) of the majority ownership interests of Borrower, or any party to the Loan Documents. Material
Business Alteration. Without prior written consent of Bank, a material alteration in the kind or type of
Borrower's business. Material Adverse Change. Bank determines in good faith, in its sole discretion,
that the prospects for payment or performance of the Obligations are impaired or there has occurred a
material adverse change in the business or prospects of Borrower, financial or otherwise.
REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan Documents, Bank may at
any time thereafter, take the following actions: Bank Lien. Foreclose its security interest or lien against
Borrower's deposit accounts and investment property without notice. Acceleration Upon Default.
Accelerate the maturity of this Note and, at Bank's option, any or all other Obligations, other than
Obligations under any swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time)
between Borrower and Bank, or its affiliates, which shall be due in accordance with and governed by the
provisions of said swap agreements; whereupon this Note and the accelerated Obligations shall be
immediately due and payable; provided, however, if the Default is based upon a bankruptcy or insolvency
proceeding commenced by or against Borrower or any guarantor or endorser of this Note, all Obligations
(other than Obligations under any swap agreement as referenced above) shall automatically and
immediately be due and payable. Cumulative. Exercise any rights and remedies as provided under the
Note and other Loan Documents, or as provided by law or equity.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such information as Bank may
reasonably request from time to time, including without limitation, financial statements and information
pertaining to Borrower's financial condition. Such information shall be true, complete, and accurate.
CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A POWER OF
AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER. IN
GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER, THE
BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE
COUNSEL FOR BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY
KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WAIVES
ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN
OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE
535080 (Rev 26.0) Page 3
Note.dot
UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE
INCLUDING, WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT
OF THE BORROWER'S BANK ACCOUNT AND OTHER ASSETS. BORROWER ACKNOWLEDGES
AND UNDERSTANDS THAT BY ENTERING INTO THIS NOTE CONTAINING A CONFESSION OF
JUDGMENT CLAUSE THAT BORROWER IS VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY
GIVING UP ANY AND ALL RIGHTS, INCLUDING CONSTITUTIONAL RIGHTS, THAT BORROWER
HAS. OR MAY HAVE TO NOTICE AND A HEARING BEFORE JUDGMENT CAN BE ENTERED
AGAINST BORROWER AND BEFORE THE BORROWER'S ASSETS, INCLUDING, WITHOUT
LIMITATION, ITS BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON AND/OR
ATTACHED. BORROWER UNDERSTANDS THAT ANY SUCH GARNISHMENT, LEVY, EXECUTION
AND/OR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED, EXECUTED
UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO BORROWER. IT IS SPECIFICALLY
ACKNOWLEDGED BY BORROWER THAT THE BANK HAS RELIED ON THIS WARRANT OF
ATTORNEY AND THE RIGHTS WAIVED BY BORROWER HEREIN IN RECEIVING THIS NOTE AND
AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER.
If a Default occurs under this Note or any other Loan Documents, each Borrower hereby jointly and
severally authorizes and empowers any attorney of any court of record or the prothonotary or clerk of any
county in the Commonwealth of Pennsylvania, or in any jurisdiction where permitted by law or the clerk of
any United States District Court, to appear for Borrower in any and all actions which may be brought
hereunder and enter and confess judgment against the Borrower or any of them in favor of the Bank for
such sums as are due or may become due hereunder or under any other Loan Documents, together with
costs of suit and actual collection costs including, without limitation, reasonable attorneys' fees equal to
5% of the Obligations then due and owing but in no event less than $5,000.00, with or without declaration,
without prior notice, without stay of execution and with release of all procedural errors and the right to
issue executions forthwith. To the extent permitted by law, Borrower waives the right of inquisition on any
real estate levied on, voluntarily condemns the same, authorizes the prothonotary or clerk to enter upon
the writ of execution this voluntary condemnation and agrees that such real estate may be sold on a writ
of execution; and also waives any relief from any appraisement, stay or exemption law of any state now in
force or hereafter enacted. Borrower further waives the right to any notice and hearing prior to the
execution, levy, attachment or other type of enforcement of any judgment obtained hereunder,
including, Without limitation, the right to be notified and heard prior to the garnishment, levy,
execution upon and attachment of Borrower's bank accounts and other property. If a copy of this
Note verified by affidavit of any officer of the Bank shall have been filed in such action, it shall not be
necessary to file the original thereof as a warrant of attorney, any practice or usage to the contrary
notwithstanding. The authority herein granted to confess judgment shall not be exhausted by any single
exercise thereof, but shall continue and may be exercised from time to time as often as the Bank shall
find it necessary and desirable and at all times until full payment of all amounts due hereunder and under
any other Loan Documents. The Bank may confess one or more judgments in the same or different
jurisdictions for all or any part of the Obligations arising hereunder or under any other Loan Documents to
which Borrower is a party, without regard to whether judgment has theretofore been confessed on more
than one occasion for the same Obligations. In the event that any judgment confessed against the
Borrower is stricken or opened upon application by or on behalf of Borrower or any obligor for any reason,
the Bank is hereby authorized and empowered to again appear for and confess judgment against
Borrower for any part or all of the Obligations owing under this Note and/or for any other liabilities, as
herein provided.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and other Loan
Documents shall be valid unless in writing and signed by an officer of Bank. No waiver by Bank of any
Default shall operate as a waiver of any other Default or the same Default on a future occasion. Neither
the failure nor any delay on the part of Bank in exercising any right, power, or remedy under this Note and
other Loan Documents shall operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
Except to the extent otherwise provided by the Loan Documents or prohibited by law, each Borrower and
each other person liable under this Note waives presentment, protest, notice of dishonor, demand for
535080 (Rev 26.0) - Page 4
Nole.dot
payment, notice of intention to accelerate maturity, notice of acceleration of maturity, notice of sale and all
other notices of any kind. Further, each agrees that Bank may (i) extend, modify or renew this Note or
make a novation of the loan evidenced by this Note, and/or (ii) grant releases, compromises or
indulgences with respect to any collateral securing this Note, or with respect to any Borrower or other
person liable under this Note or any other Loan Documents, all without notice to or consent of each
Borrower and other such person, and without affecting the liability of each Borrower and other such
person; provided, Bank may not extend, modify or renew this Note or make a novation of the loan
evidenced by this Note without the consent of the Borrower, or if there is more than one Borrower, without
the consent of at least one Borrower; and further provided, if there is more than one Borrower, Bank may
not enter into a modification of this Note which increases the burdens of a Borrower without the consent
of that Borrower.
MISCELLANEOUS PROVISIONS. Assignment. This Note and the other Loan Documents shall inure to
the benefit of and be binding upon the parties and their respective heirs, legal representatives,
successors and assigns. Bank's interests in and rights under this Note and the other Loan Documents
are freely assignable, in whole or in part, by Bank. In addition, nothing in this Note or any of the other
Loan Documents shall prohibit Bank from pledging or assigning this Note or any of the other Loan
Documents or any interest therein to any Federal Reserve Bank. Borrower shall not assign its rights and
interest hereunder without the prior written consent of Bank, and any attempt by Borrower to assign
without Bank's prior written consent is null and void. Any assignment shall not release Borrower from the
Obligations. Organization; Powers. Borrower represents that Borrower (i) is (a) an adult individual and
is sui 'uris, or (b) a corporation, general partnership, limited partnership, limited liability company or other
legal entity, duly organized, validly existing and in good standing under the laws of its state of
organization, and is authorized to do business in each other jurisdiction wherein its ownership of property
or conduct of business legally requires such organization (ii) has the power and authority to own its
properties and assets and to carry on its business as now being conducted and as now contemplated;
and (iii) has the power and authority to execute, deliver and perform, and by all necessary action has
authorized the execution, delivery and performance of, all of its obligations under this Note and any other
Loan Document to which it is a party. Compliance with Laws. Borrower represents that Borrower and
any subsidiary and affiliate of Borrower and any guarantor are in compliance in all respects with all
federal, state and local laws, rules and regulations applicable to its properties, operations, business, and
finances, including, without limitation, any federal or state laws relating to liquor (including 18 U.S.C. §
3617, et seq.) or narcotics (including 21, U.S.C. § 801, et seq.) and/or any commercial crimes; all
applicable federal, state and local laws and regulations intended to protect the environment; and the
Employee Retirement Income Security Act of 1974, as amended ("ERISA" ), if applicable. None of
Borrower, or any subsidiary or affiliate of Borrower or any guarantor is a Sanctioned Person or has any of
its assets in a Sanctioned Country or does business in or with, or derives any of its operating income from
investments in or transactions with, Sanctioned Persons or Sanctioned Countries in violation of economic
sanctions administered by OFAC. The proceeds from the Loan will not be used to fund any operations in,
finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned
Country. "OFAC' means the U.S. Department of the Treasury's Office of Foreign Assets Control.
"Sanctioned Country' means a country subject to a sanctions program identified on the list maintained by
OFAC and available at http://www.treas.gov/officestenforeementtofactsanctionst, or as otherwise
published from time to time. "Sanctioned Person" means (i) a person named on the list of Specially
Designated Nationals or Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofactsdn/, or as otherwise published from time to time, or (ii) (A)
an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned
Country, or (C) a person resident in a Sanctioned Country, to the extent subject to a sanctions program
administered by OFAC. Applicable Law; Conflict Between Documents. This Note and, unless
otherwise provided in any other Loan Document, the other Loan Documents shall be governed by and
interpreted the laws of the state named in Bank's address on the first page hereof without regard to that
state's conflict of laws principles. If the terms of this Note should conflict with the terms of any loan
agreement or any commitment letter that survives closing, the terms of this Note shall control.
Borrower's Accounts. Except as prohibited by law, Borrower grants Bank a security interest in all of
Borrower's deposit accounts and investment property with Bank and any of its affiliates. Swap
Agreements. All swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time), if any,
535080 (Rev 26.0) Page 5 Note dm
between Borrower and Bank or its affiliates are independent agreements governed by the written
provisions of said swap agreements, which will remain in full force and effect, unaffected by any
repayment, prepayment, acceleration, reduction, increase or change in the terms of this Note, except as
otherwise expressly provided in said written swap agreements, and any payoff statement from Bank
relating to this Note shall not apply to said swap agreements except as otherwise expressly provided in
such payoff statement. Jurisdiction. Borrower irrevocably agrees to non-exclusive personal jurisdiction
in the state identified as the Jurisdiction above. Severability. If any provision of this Note or of the other
Loan Documents shall be prohibited or invalid under applicable law, such provision shall be ineffective but
only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Note or other such document. Payments. All payments shall be mailed
to Bank at Commercial Loan Services, P. O. Box 740502, Atlanta, GA 30374-0502; or other such
address as provided by Bank in writing. Notices. Any notices to Borrower shall be sufficiently given, if in
writing and mailed or delivered to the Borrower's address shown above or such other address as provided
hereunder, and to Bank, if in writing and mailed or delivered to Wachovia Bank, National Association, Mail
Code VA7628, P. O. Box 13327, Roanoke, VA 24040 or Wachovia Bank, National Association, Mail
Code VA7628, 10 South Jefferson Street, Roanoke, VA 24011 or such other address as Bank may
specify in writing from time to time. Notices to Bank must include the mail code. In the event that
Borrower changes Borrower's address at any time prior to the date the Obligations are paid in full,
Borrower agrees to promptly give written notice of said change of address by registered or certified mail,
return receipt requested, all charges prepaid. Plural; Captions. All references in the Loan Documents to
Borrower, guarantor, person, document or other nouns of reference mean both the singular and plural
form, as the case may be, and the term "person" shall mean any individual, person or entity. The
captions contained in the Loan Documents are inserted for convenience only and shall not affect the
meaning or interpretation of the Loan Documents. Advances. Bank may, in its sole discretion, make
other advances which shall be deemed to be advances under this Note, even though the stated principal
amount of this Note may be exceeded as a result thereof. Posting of Payments. All payments received
during normal banking hours after 2:00 p.m. local time at the office of Bank first shown above shall be
deemed received at the opening of the next banking day. Joint and Several Obligations. If there is
more than one Borrower, each is jointly and severally obligated together with all other parties obligated for
the Obligations. Fees and Taxes. Borrower shall promptly pay all documentary, intangible recordation
and/or similar taxes on this transaction whether assessed at closing or arising from time to time.
LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO,
INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR
ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM
THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN
DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR
THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY
PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE
PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY
DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY
SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY
ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. Patriot Act Notice. To help fight the
funding of terrorism and money laundering activities, Federal law requires all financial institutions to
obtain, verify, and record information that identifies each person who opens an account. For purposes of
this section, account shall be understood to include loan accounts. Final Agreement. This Note and the
other Loan Documents represent the final agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous or subsequent agreements of the parties. There are no unwritten
agreements between the parties.
WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF
535080 (Rev 26.0) Page 6
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DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH
RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ACCEPT THIS
NOTE. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE AND
REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWEEN THE
PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT
HERETOFORE EXECUTED IN CONNECTION WITH, RELATEW TO OR BEING REPLACED,
SUPPLEMENTED, EXTENDED OR MODIFIEQy9Y, THIS NOTE... //
IN WITNESS WHEREOF, Borrower, on
duly executed under seal. /
and y jLb"b /e written, has caused this Note to be
CAT - Deal # 1476207585 Facility ID 1476819585
535080 (Rev 26.0)
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MODIFICATION NUMBER ONE
TO PROMISSORY NOTE
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Henry L. Stetler'
853 Englesville Hill Rd
Boyertown, Pennsylvania 19512
(Hereinafter referred to as "Borrower")
Wachovia Bank, National Association
Philadelphia, Pennsylvania 19109
(Hereinafter referred to as "Bank")
THIS AGREEMENT is entered into as of September J' ?. 2008 by and between Bank and Borrower.
RECITALS
Bank is the holder of a Promissory Note, as modified from time to time, executed and delivered by
Borrower, dated August 7, 2007, in the original principal amount of $1,700,000.00 (the "Note");
Borrower and Bank have agreed to modify the terms of the Note.
In consideration of Bank's continued extension of credit and the agreements contained herein, the parties
agree as follows:
AGREEMENT
ACKNOWLEDGMENT OF BALANCE. Borrower acknowledges that the most recent Commercial Loan
Invoice sent to Borrower with respect to the Obligations under the Note is correct.
MODIFICATIONS.
1. The Note is hereby modified by deleting the provisions in the Note establishing the Term Loan (with
Draw Period) and substituting the following in their place and stead:
TERM LOAN (WITH DRAW PERIOD). From the date of this Note until and including December 7, 2008
(the "Conversion Date"), Borrower may borrow and, upon the request of Borrower, Bank shall advance
under this Note from time to time (each an "Advance" and together the "Advances"), so long as the total
principal balance outstanding at any one time does not exceed the principal amount stated on the face of
this Note, subject to the limitations described in any loan agreement to which this Note is subject. Bank's
obligation to make Advances under this Note shall terminate if Borrower is in Default under this Note. As
of the date of each proposed Advance, Borrower shall be deemed to represent that each representation
made in the Loan Documents is true as of such date. Advances, once repaid, may not be reborrowed.
2. The Note is hereby modified by deleting the provisions in the Note establishing the Repayment Terms
and substituting the following in their place and stead:
REPAYMENT TERMS. The Note shall be due and payable as set forth hereinafter. From the date of this
Note until and including the Conversion Date, this Note shall be payable in consecutive monthly
payments of accrued interest only, commencing on September 7, 2008, and continuing on the same day
of each month thereafter. After the Conversion Date, this Note shall be payable in consecutive equal
monthly payments of principal and interest in an amount equal to $14,074.15, commencing on January 7,
2009, and continuing on the same day of each month thereafter. In any event, all principal and accrued
interest shall be due and payable on August 7, 2013.
MOM (Rev 24.0) WPC1805005XXXX001 CDCNOTEXXX ModaW.doc
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The Note shall be due and payable as set forth hereinafter. This Note shall be payable in consecutive
monthly payments of accrued interest only, commencing on October 7, 2008, and continuing on the same
day of each month thereafter. Commencing on January 7, 2009, this Note shall be payable in
consecutive equal monthly payments of principal and interest in an amount equal to $14,074.15, and
continuing on the same day of each month thereafter. In any event, all principal and accrued interest
shall be due and payable on August 7, 2013.
ACKNOWLEDGMENTS AND REPRESENTATIONS. Borrower acknowledges and represents that the
Note and other Loan Documents, as amended hereby, are in full force and effect without any defense,
counterclaim, right or claim of set-off, that, after giving effect to this Agreement, no default or event that
with the passage of time or giving of notice would constitute a default under the Loan Documents has
occurred, all representations and warranties contained in the Loan Documents are true and correct as of
this date, all necessary action to authorize the execution and delivery of this Agreement has been taken;
and this Agreement is a modification of an existing obligation and is not a novation.
COLLATERAL. Borrower acknowledges and confirms that there have been no changes in the ownership
of any collateral pledged to secure the Obligations (the "Collateral") since the Collateral was originally
pledged; Borrower acknowledges and confirms that the Bank has existing, valid first priority security
interests and liens in the Collateral; and that such security interests and liens shall secure Borrower's
Obligations, including any modification of the Note or Loan Agreement, if any, and all future modifications,
extensions, renewals and/or replacements of the Loan Documents.
MISCELLANEOUS. This Agreement shall be construed in accordance with and governed by the laws of
the applicable state as originally provided in the Loan Documents, without reference to that state's
conflicts of law principles. This Agreement and the other Loan Documents constitute the sole agreement
of the parties with respect to the subject matter thereof and supersede all oral negotiations and prior
writings with respect to the subject matter thereof. No amendment of this Agreement, 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. The illegality, unenforceability or inconsistency of any provision of this Agreement shall
not in any way affect or impair the legality, enforceability or consistency of the remaining provisions of this
Agreement or the other Loan Documents. This Agreement and the other Loan Documents are intended
to be consistent. However, in the event of any inconsistencies among this Agreement and any of the
Loan Documents, the terms of this Agreement, and then the Note, shall control. This Agreement may be
executed in any number of counterparts and by the different parties on separate counterparts. Each such
counterpart shall be deemed an original, but all such counterparts shall together constitute one and the
same agreement. Terms used in this Agreement which are capitalized and not otherwise defined herein
shall have the meanings ascribed to such terms in the Note. LIMITATION ON LIABILITY; WAIVER OF
PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY ACCEPTANCE
HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY
CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY
WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER
AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED
HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE
LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2)
PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE •PARTIES HEREBY EXPRESSLY WAIVES
ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH
MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR
CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY
OR OTHERWISE. Final Agreement. This Agreement and the other Loan Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or
subsequent agreements of the parties. There are no unwritten agreements between the parties.
Borrower reaffirms and restates the following with respect to the Note as modified herein:
540895 (Rev 24.0)
Page 2
ModaW.doc
CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A POWER OF
AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER. IN
GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER, THE
BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE
COUNSEL FOR BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY
KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WAIVES
00 ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN
OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE
UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE
INCLUDING, WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT
U'i OF THE BORROWER'S BANK ACCOUNT AND OTHER ASSETS. BORROWER ACKNOWLEDGES
AND UNDERSTANDS THAT BY ENTERING INTO THIS AGREEMENT CONTAINING A CONFESSION
$,tl OF JUDGMENT CLAUSE THAT BORROWER IS VOLUNTARILY, INTELLIGENTLY AND
KNOWINGLY GIVING UP ANY AND ALL RIGHTS, INCLUDING CONSTITUTIONAL RIGHTS, THAT
BORROWER HAS OR MAY HAVE TO NOTICE AND A HEARING BEFORE JUDGMENT CAN BE
^l ENTERED AGAINST BORROWER AND BEFORE THE BORROWER'S ASSETS, INCLUDING,
i WITHOUT LIMITATION, ITS BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON
C) AND/OR ATTACHED. 'BORROWER UNDERSTANDS THAT ANY SUCH GARNISHMENT, LEVY,
EXECUTION AND/OR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED,
EXECUTED UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO BORROWER. IT IS
SPECIFICALLY, ACKNOWLEDGED BY BORROWER THAT THE BANK HAS RELIED ON THIS
WARRANT OF ATTORNEY AND THE RIGHTS WAIVED BY BORROWER HEREIN IN RECEIVING
THIS AGREEMENT AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE
BORROWER.
If a Default occurs under this Agreement or any other Loan Documents, each Borrower hereby jointly and
severally authorizes and empowers any attorney of any court of record or the prothonotary or clerk of any
county in the Commonwealth of Pennsylvania, or in any jurisdiction where permitted by law or the clerk of
any United States District Court, to appear for Borrower in any and all actions which may be brought
hereunder and enter and confess judgment against the Borrower or any of them in favor of the Bank for
such sums as are due or may become due hereunder or under any other Loan Documents, together with
costs of suit and actual collection costs including, without limitation, reasonable attorneys' fees equal to
5% of the Obligations then due and owing but in no event less than $5,000.00, with or without declaration,
without prior notice, without stay of execution and with release of all procedural errors and the right to
issue executions forthwith. To the extent permitted by law, Borrower waives the right of inquisition on any
real estate levied on, voluntarily condemns the same, authorizes the prothonotary or clerk to enter upon
the writ of execution this voluntary condemnation and agrees that such real estate may be sold on a writ
of execution; and also waives any relief from any appraisement, stay or exemption law of any state now in
force or hereafter enacted. Borrower further waives the right to any notice and hearing prior to the
execution, levy, attachment or other type of enforcement of any judgment obtained hereunder,
including, without limitation, the right to be notified and heard prior to the garnishment, levy,
execution upon and attachment of Borrower's bank accounts and other property. If a copy of this
Agreement verified by affidavit of any officer of the Bank shall have been filed in such action, it shall not
be necessary to file the original thereof as a warrant of attorney, any practice or usage to the contrary
notwithstanding. The authority herein granted to confess judgment shall not be exhausted by any single
exercise thereof, but shall continue and may be exercised from time to time as often as the Bank shall
find it necessary and desirable and at all times until full payment of all amounts due hereunder and under
any other Loan Documents. The Bank may confess one or more judgments in the same or different
jurisdictions for all or any part of the Obligations arising hereunder or under any other Loan Documents to
which Borrower is a party, without regard to whether judgment has theretofore been confessed on more
than one occasion for the same Obligations. In the event: that any judgment confessed against the
Borrower is stricken or opened upon application by or on behalf of Borrower or any obligor for any reason,
the Bank is hereby authorized and empowered to again appear for and confess judgment against
Borrower for any part or all of the Obligations owing under this Agreement and/or for any other liabilities,
as herein provided.
540M (Rev 24.0) Page 3 Moaagooc
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WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ACCEPT
THIS AGREEMENT. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL
SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES
BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR
AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO OR BEING
REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED BY, THIS AGREEMENT.
IN WITNESS WHEREOF, the
first above written, AND THIS
2008.
By:
Tracking #. 720782
CAT - Deal # 1029421 Facility ID 805005
540895 (Rev 24.0)
have duly ned n sealed this Agreement the day and year
IT SH?t% A ED EFFECTIVE AS OF SEPTEMBER 1,
Michele Richards SVnior Vice President
Page 4 Modegrdoc
2)
MODIFICATION NUMBER TWO
TO PROMISSORY NOTE
Henry L. Stetler
N 853 Englesville Hill Road
-i Boyertown, Pennsylvania 19512
0 (Hereinafter referred to as "Borrower")
at'r
Wachovia Bank, National Association
Philadelphia, Pennsylvania 19109
W (Hereinafter referred to as "Bank")
0) THIS AGREEMENT is entered into as of January '30, 2009 by and between Bank and Borrower.
0
Q) RECITALS
0
Bank is the holder of a Promissory Note, as modified from time to time, executed and delivered by
Borrower, dated August 7, 2007, in the original principal amount of $1,700,000.00 (the "Note");
Borrower and Bank have agreed to modify the terms of the Note.
In consideration of Bank's continued extension of credit and the agreements contained herein, the parties
agree as follows:
AGREEMENT
ACKNOWLEDGMENT OF BALANCE. Borrower acknowledges that the most recent Commercial Loan
Invoice sent to Borrower with respect to the Obligations under the Note is correct.
MODIFICATIONS.
The Note is hereby modified by deleting the provisions in the Note establishing the repayment terms and
substituting the following in their place and stead:
REPAYMENT TERMS. The Note shall be due and payable as set forth hereinbelow. From the date of
this Note until and including March 7, 2009, this Note shall be payable in consecutive monthly payments
of accrued interest only, commencing on January 7, 2009, and continuing on the same day of each month
thereafter. This Note shall be payable in consecutive equal monthly payments of principal and interest in
an amount equal to $14,074.15, commencing on April 7, 2009 and continuing on the same day of each
month thereafter. In any event, all principal and accrued interest shall be due and payable on August 7,
2013.
ACKNOWLEDGMENTS AND REPRESENTATIONS. Borrower acknowledges and represents that the
Note and other Loan Documents, as amended hereby, are in full force and effect without any defense,
counterclaim, right or claim of set-off, that, after giving effect to this Agreement, no default or event that
with the passage of time or giving of notice would constitute a default under the Loan Documents has
occurred, all representations and warranties contained in the Loan Documents are true and correct as of
this date, all necessary action to authorize the execution and delivery of this Agreement has been taken;
and this Agreement is a modification of an existing obligation and is not a novation.
COLLATERAL. Borrower acknowledges and confirms that there have been no changes in the ownership
of any collateral pledged to secure the Obligations (the "Collateran since the Collateral was originally
pledged; Borrower acknowledges and confines that the Bank has existing, valid first priority security
¦ 540895 (Rev 25.0) WPC1859504XXXX001 CDCNOTEXXX Modagr.doc
MAE
interests and liens in the Collateral; and that such security interests and liens shall secure Borrower's
Obligations, including any modification of the Note or Loan Agreement, if any, and all future modifications,
extensions, renewals and/or replacements of the Loan Documents.
MISCELLANEOUS. This Agreement shall be construed in accordance with and governed by the laws of
the applicable state as originally provided in the Loan Documents, without reference to that state's
conflicts of law principles. This Agreement and the other Loan Documents constitute the sole agreement
of the parties with respect to the subject matter thereof and supersede all oral negotiations and prior
, writings with respect to the subject matter thereof. No amendment of this Agreement, and no waiver of
U
00
00 any one or more of the provisions hereof shall be effective unless set forth in writing and signed by the
parties hereto. The illegality, unenforceability or inconsistency of any provision of this Agreement shall
U1
W not in any way affect or impair the legality, enforceability or consistency of the remaining provisions of this
I Agreement or the other Loan Documents. This Agreement and the other Loan Documents are intended
? to be consistent. However, in the event of any inconsistencies among this Agreement and any of the
0 Loan Documents, the terms of this Agreement, and then the Note, shall control. This Agreement may be
0) executed in any number of counterparts and by the different parties on separate counterparts. Each such
counterpart shall be deemed an original, but all such counterparts shall together constitute one and the
same agreement. Terms used in this Agreement which are capitalized and not otherwise defined herein
shall have the meanings ascribed to such terms in the Note. LIMITATION ON LIABILITY; WAIVER OF
PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY ACCEPTANCE
HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY
CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY
WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER
AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED
HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE
LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2)
PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES
ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH
MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR
CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY
OR OTHERWISE. Telephone Communication Monitoring. Borrower agrees that Borrower's
telephone communications with Bank may be monitored and/or recorded to improve customer service
and security. Final Agreement. This Agreement and the other Loan Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or
subsequent agreements of the parties. There are no unwritten agreements between the parties.
Borrower reaffirms and restates the following with respect to the Note as modified herein:
CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A POWER OF
AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER. IN
GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER, THE
BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE
COUNSEL FOR BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY
KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WAIVES
ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN
OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE
UNITED STATES OF AMERICA; COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE
INCLUDING, WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT
OF THE BORROWER'S BANK ACCOUNT AND OTHER ASSETS. BORROWER ACKNOWLEDGES
AND UNDERSTANDS THAT BY ENTERING INTO THIS AGREEMENT CONTAINING A CONFESSION
OF JUDGMENT CLAUSE THAT BORROWER IS VOLUNTARILY, INTELLIGENTLY AND
KNOWINGLY GIVING UP ANY AND ALL RIGHTS, INCLUDING CONSTITUTIONAL RIGHTS, THAT
BORROWER HAS OR MAY HAVE TO NOTICE AND A HEARING BEFORE JUDGMENT CAN BE
ENTERED AGAINST BORROWER AND BEFORE THE BORROWER'S ASSETS, INCLUDING,
540895 (Rev 25.0) Page 2 Modagr.dac
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WITHOUT LIMITATION, ITS BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON
AND/OR ATTACHED. BORROWER UNDERSTANDS THAT ANY SUCH GARNISHMENT, LEVY,
EXECUTION AND/OR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED,
EXECUTED UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO BORROWER. IT IS
SPECIFICALLY ACKNOWLEDGED BY BORROWER THAT THE BANK HAS RELIED ON THIS
WARRANT OF ATTORNEY AND THE RIGHTS WAIVED BY BORROWER HEREIN IN RECEIVING
THIS AGREEMENT AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE
BORROWER.
If a Default occurs under this Agreement or any other Loan Documents, each Borrower hereby jointly and
severally authorizes and empowers any attorney of any court of record or the prothonotary or clerk of any
county in the Commonwealth of Pennsylvania, or in any jurisdiction where permitted by law or the clerk of
any United States District Court, to appear for Borrower in any and all actions which may be brought
hereunder and enter and confess judgment against the Borrower or any of them in favor of the Bank for
such sums as are due or may become due hereunder or under any other Loan Documents, together with
costs of suit and actual collection costs including, without limitation, reasonable attorneys' fees equal to
5% of the Obligations then due and owing but in no event less than $5,000.00, with or without declaration,
without prior notice, without stay of execution and with release of all procedural errors and the right to
issue executions forthwith. To the extent permitted by law, Borrower waives the right of inquisition on any
real estate levied on, voluntarily condemns the same, authorizes the prothonotary or clerk to enter upon
the writ of execution this voluntary condemnation and agrees that such real estate may be sold on a writ
of execution; and also waives any relief from any appraisement, stay or exemption law of any state now in
force or hereafter enacted. Borrower further waives the right to any notice and hearing prior to the
execution, levy, attachment or other type of enforcement of any judgment obtained hereunder,
including, without limitation, the right to be notified and heard prior to the garnishment, levy,
execution upon and attachment of Borrower's bank accounts and other property. If a copy of this
Agreement verified by affidavit of any officer of the Bank shall have been filed in such action, it shall not
be necessary to file the original thereof as a warrant of attorney, any practice or usage to the contrary
notwithstanding. The authority herein granted to confess judgment shall not be exhausted by any single
exercise thereof, but shall continue and may be exercised from time to time as often as the Bank shall
find it necessary and desirable and at all times until full payment of all amounts due hereunder and under
any other Loan Documents. The Bank may confess one or more judgments in the same or different
jurisdictions for all or any part of the Obligations arising hereunder or under any other Loan Documents to
which Borrower is a party, without regard to whether judgment has theretofore been confessed on more
than one occasion for the same Obligations. In the event that any judgment confessed against the
Borrower is stricken or opened upon application by or on behalf of Borrower or any obligor for any reason,
the Bank is hereby authorized and empowered to again appear for and confess judgment against
Borrower for any part or all of the Obligations owing under this Agreement and/or for any other liabilities,
as herein provided.
WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ACCEPT
THIS AGREEMENT. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL
SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES
BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR
AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO OR BEING
REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED BY, THIS AGREEMENT.
54ON5 (Rev 25.0) Page 3 ModagrAm
IN WITNESS WHEREOF, the undersigned have duly signed and sealed this Agreement the day and year
first above written. THIS MODIFICATIC)N NUMBER ?j TO PROMISSORY NOTE IS DEEMED
EFFECTIVE AS OF JANUARY 1, 2009. 1 '1 A .
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By:
Tracking #: 872571
CAT - Deal # 1086485 Facility ID 859504
540895 (Rev 25.0)
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National
Page 4
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Modagr.doc
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A
THIRD MODIFICATION TO PROMISSORY NOTE
This THIRD MODIFICATION TO PROMISSORY NOTE (the "Third Modification") is
made this ??. day of March, 2010, among HENRY L. STETLER, an adult individual with
an address at 853 Englesville Hill Road, Boyertown, PA 19512 (the "Borrower"), CLASSIC
TRUCK ASSOCIATES, INC., a Pennsylvania corporation with offices at 191 County Line
Road, Boyertown, PA 19512 ("Classic Truck"), STETLER SERVICE CORPORATION, a
Pennsylvania corporation with offices at 191 County Line Road, Boyertown, PA 19512 ("Stetler
Corp."), YOUR BEER MAN, INC., a Pennsylvania corporation with offices at 191 County
Line Road, Boyertown, PA 19512 ("Beer Man"), 2nd ATTIC SOUTH AND SPRUCE, LLC, a
Pennsylvania limited liability company with offices at 1028 Commerce Drive, Pottstown, PA
("2nd Attic," and collectively with Stetler Corp. and Beer Man,-the "Corporate Guarantors"),
DOUG A. STETLER, an adult individual with an address at 2258 Old Route 100, Barto, PA
19504, DENISE L. CHRISTMAN, an adult individual with an address at 41 South Werstler
Avenue; Gilbertsville, PA 19525 (collectively, the "Individual Guarantors," and together with
the Corporate.Guarantors, the "Guarantors," and each a "Guarantor"), on the one hand, and
WACHOVIA0I k-NK, NATIONAL ASSOCIATION, a national banking association with
offices at 123 South Broad Street, Philadelphia, PA 19109 (the "Bank").
BACKGROUND
A. The Bank is the holder of a certain Promissory Note dated August 7, 2007, in the
original principal amount of One Million Seven Hundred Thousand ($1,700,000) Dollars, as
modified by, inter alia, that certain Modification Number One to Promissory Note dated
September 22, 2008, and that certain Modification Number Two to Promissory Note dated
January 30, 2009 (collectively and as modified, the "Note"), which was executed and delivered
by the Borrower.
B. The Note, as modified, is secured by (i) that certain Open-End Mortgage and
Assignment of Rents dated August 7, 2007, and recorded with the Cumberland County Recorder
of Deeds on August 15, 2007, at Instrument No. 200732055 (the "Cumberland County
Mortgage"), which granted the Bank a lien on that certain real property located at 150 Silver
Spring Road, Hampden and Silver Spring Townships, PA (as more fully described therein, the
"Cumberland County Property"); (ii) that certain Open-End Mortgage and Assignment of Rents
dated August 7, 2007 and recorded. with the Berks County Recorder of Deeds on August 15,
2007, at Instrument No. 2007050330 (the "Berks County Mortgage"), which granted the Bank a
lien on that certain real property located at 191 County Line Road, Boyertown, PA (as more fully
described therein, the "Berks County Property"); and (iii) that certain Open-End Mortgage and
Assignment of Rents dated February 4, 2010 (the."Pottsgove Mortgage"), which granted the
Bank a lien on that certain real property owned by Guarantor 2nd Attic and located at 1028
Commerce Drive, Upper Pottsgrove Township, Pennsylvania (as more fully described therein,
the "Pottsgrove Property," and collectively with the Cumberland County Property and the Berks
County Property, the "Collateral"). The Note, the Cumberland County Mortgage, the Berks
County Mortgage, and the Pottsgrove Mortgage, together with all related instruments, documents
and agreements, the "Loan Documents."
ME 1 9377828v.3
C. Pursuant to the terms of (i) those two certain Unconditional Guaranties each dated
March 20, 2009, executed and delivered to the Bank by Beer Man, Classic Truck and Stetler
Corp., (ii) those two certain Unconditional Guaranties each dated August 7, 2007, executed and
delivered to the Bank by each of the Individual Guarantors, and (iii) that certain Unconditional
Guaranty dated February 4, 2010, executed and delivered to the Bank by 2"d Attic (collectively,
the "Guaranties'), the Guarantors became the unconditional guarantors, as surety, of the payment
and performance of the Borrower's obligations under the Loan Documents (the "Obligations').
D. The Borrower is in default of his Obligations under the Loan Documents due to,
inter alia, the failure of the Borrower to repay a certain promissory note at the maturity thereof,
as more fully set forth in that certain. Loan Extension and Modification Agreement of even date
herewith between the Bank, the Borrower and related entities (the "Extension Agreement").
E. The Borrower has requested that the Bank waive the Existing Default and modify
the repayment terms of the Note in order to permit the Borrower to sell the Cumberland County
Property in order to repay the Note.
F. The Bank is willing to waive the Existing Default and modify the repayment
terms of the Note only on the terms and conditions set forth herein.
NOW THEREFORE, with the foregoing Background provisions deemed incorporated
herein, and in consideration of the mutual promises set forth below, and intending to be legally
bound hereby, the Borrower, the Guarantors and the Bank agree as follows:
1. Definitions. All capitalized terms used and not otherwise defined herein shall
have the meanings given them in the Note.
2. Amendment to Repayment Terms. The provision of the Note entitled
"Repayment Terms" is hereby modified as follows:
Repayment Terms. Commencing on March 7, 2010, and
continuing on the 7t' day of each consecutive calendar month
thereafter, through and including June 7, 2010, this Note shall be
payable in consecutive monthly payments of accrued interest only.
Commencing on July 7, 2010, and continuing on the 7`h day of
each consecutive calendar month thereafter, Borrower shall make
monthly payments of principal and accrued interest in the total
amount of $14,074.15 each. In any event, all principal and accrued
interest shall be due and payable on August 7, 2013.
3. Existine Default, Li Waiver. In connection with the execution of this Third
Modification, the Bank hereby waives the Existing Default. The Existing Default is the sole
Event of Default under the Loan Documents known to the Bank as of the date of this
Modification Agreement. The foregoing waiver is specifically limited to the Existing Default,
and shall not be construed as a waiver of any other existing or future default or Event of Default,
as set forth in the Loan Documents, by the Borrower or any Guarantor, nor shall it be construed
ME] 9377828v.3 2
to obligate the Bank to waive any continuing or future default or Event of Default by the
Borrower or any Guarantor.
4. Ratification. Affirmation No Other Change. Except as expressly set forth herein,
all terms and conditions of the Note and the other Loan Documents shall remain in full force and
effect. The Borrower and each Guarantor hereby ratifies, confirms and acknowledges that the
Loan Documents and the Guaranties are valid, binding and in full force and effect as of the date
hereof. The Borrower and each Guarantor further acknowledges and agrees that it has no
defense, set-off, counterclaim or challenge against the payment of any sums owing under the
Note, the other Loan Documents or the Guaranties, the validity or extent of the liens and security
interests in the Collateral granted to Bank thereby, or the enforcement of any of the terms or
conditions thereof. Neither this Third Modification, nor any of the agreements, instruments, or
documents executed in connection herewith, are in any way intended to constitute a novation of
the Note or any of the other Loan Documents.
5. Successors and Assigns. This Third Modification shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and assigns, but shall not
be assignable by the Borrower or any Guarantor without the prior written consent of the Bank.
6. Entire Agreement, Amendment, No Waiver. This Third Modification constitutes
the entire agreement between the Borrower, the Guarantors and the Bank with respect to the
subject matter set forth in this Third Modification, and supersedes all other prior agreements and
understandings, both written and oral, between the Borrower, the Guarantors, or any of them,
and the Bank with respect to such matters. This Third Modification may not be amended except
by an instrument in writing signed by all parties to this Third Modification, nor shall there be a
waiver any of the terms and conditions of this Third Modification except by writing duly signed
by the Borrower, the Guarantors and the Bank.
7. Release. The Borrower, for itself and its officers, directors, employees, agents,
successors, heirs, executors, administrators, and assigns, hereby releases and forever discharges
Bank and its officers, directors, agents, and employees from all claims and causes of actions of
any type or nature whatsoever, known or unknown, that may now exist or may exist in the future
as a result of any event or events occurring before the date of this Third Modification having
anything to do with the Loan Documents or the loan reflected thereby.
8. Headings. The section headings contained in this Third Modification are inserted
for convenience only and shall not affect in any way the meaning or interpretation of this Third
Modification.
9. Counterparts. This Third Modification may be executed in any number of
counterparts, and all such counterparts shall be deemed to be one in the same instrument.
10. Governing Law. This Third Modification shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania, without regard to
conflicts of law principles thereof.
MEI 9377828v.3 3
IN WITNESS WHEREOF, and intending to be legally bound, Borrower and Bank have
entered into this Third Modification of Promissory Note as of the date written above.
ASS C TRUCK ASSOCIATES, INC.
By:
Doug A. S e ler, resident
DENISE L. CHRISTMAN
"ML-kokkat"M
Bank:
,SJXTLER SERVICE CORP.
By:
Doug A. e ident
7
2nd ?ATTT & SPRUCE, LLC
By:
Doug A. Stetler, r ' ent
1 TLER
WAC OVIA BANK, NATIONAL ASSOCIATION
By:
LL-
Ch les B. Cook
Vice President
4
ME 19377828v.3
CORPORATE ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF ;
On this - Iq ' day of MA^t1t11 , 2010, before me, a Notary Public,
personally appeared DOUG A. STETLER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the President of CLASSIC TRUCK ASSOCIATES, INC. (the "Corporation'), and that he
executed the foregoing instrument on behalf of the Corporation, being authorized to do, so,
for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
Notar: Public
[SEAL] W,ao"AMION, fI: A 'i OF PENNSYLVANIA
L PARIAL SEAL
ANGELA S ZERN, Notary Public
CORPORATE ACKNOWLEDGMENT Boyert'&v i &)ro., Berks County
iriv Com,+ssion Expires June 8, 2010
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF
On this - day of M" , 2010, before me, a Notary Public,
personally appeared DOUG A. STETLER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the ?"?SI, o??i?X of 2ND ATTIC SOUTH AND SPRUCE, LLC (the
"Company"), and that he executed the foregoing instrument on behalf of the Corporation,
being authorized to do so, for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
14
[SEAL]
ME] 9377828v.3
Notary Public
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
ANGELA S. ZERN, Notary Public
Boyertown Boro., Berks County
My W.Prnmskm E.-pre--. June 8, 2010
5
CORPORATE ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF P(A*,-4- :
ss.
On this - day of MA? , 2010, before me, a Notary Public,
personally appeared DOUG A. STETLER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the President of STETLER SERVICE CORPORATION, a corporation (the
"Corporation"), and that he executed the foregoing instrument on behalf of the Corporation,
being authorized to do so, for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
-14
[SEAL] - NO-ARIAL SEAL
ANIGfw L A S. ZERN, Notary Public
3ryertn?.,n Sorg, Berks County
CORPORATE ACKNOWLEDGM N ?,; ^;;,r.,;;:. I z?ires June 8, 2010
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF
On this L-day of K&J- V4A , 2010, before me, a Notary Public,
personally appeared HENRY L. STETLER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the President of YOUR BEER MAN, INC., a corporation (the "Corporation"), and that he
executed the foregoing instrument on behalf of the Corporation, being authorized to do so,
for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
z4j?A - L VP- ZP,4 Jl
Notal?v Public ZI)
[SEAL]
- :'3.', :113NWEALTH OF FENN_S_1'i.VA.-`
j NOTARIAL SEAL
j ANGELA S. ZERN. Notary Pub;sc
<•Co
ME) 9377828v.3
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF 5eXk S
ss.
On this -R-- day of? , 2010, before me, a Notary Public, personally
appeared DOUG A. STETLER, known (or satisfactorily proven) to me to be the person
Who'se name is subscribed to the foregoing instrument, and who acknowledged that he
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
-2"1.A-J ?P?
NNotaj& Public
?NGTA!"AL SEAL
ANGELA S. k ..N, Notary Public
Boyertowni Roo.. Berks County
y ?r;t rr e . Jane 8, 2010
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF PCffkA
ss.
On this day of 2010, before me, a Notary Public, personally
appeared HENRY_ L. STETLER, known (or satisfactorily proven) to me to be the person
whose name is subscribed to the foregoing instrument, and who acknowledged that he
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
AIA j J
No Public
PE i'?Ns AA;
NGTA5<1,Ai. Sc.4 .
ANGELA S. ZERN, Notary Public
Boyertown Bo, a., Berks County
11;14 Commiss.o- _wMcires June 8, 2010
7
ME] 9377828v3
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
- ' ss.
COUNTY OF
On this day of , 2010, before me, a Notary Public, personally
appeared DENISE L. CHRISTMAN, known (or satisfactorily proven) to me to be the person
whose name is subscribed to the foregoing instrument, and who acknowledged that she
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
X-q-LL Not Public
.M' Y,ONWEALSH OF PENNSYLVANW
i' NOTARIAL SEAL
i ANGELA S. ZERN, Notary Public
Boyeown Sora^?EerJune 8,2010
8
ME 1 9377828v.3
F
Parcel ID 10-1838-037A-0000000-10
PREPARED BY: William Ferris
RETURN TO: Collateral Servicing Department, NC6038
Wachovia Bank, National Association
Commercial Loan Services
Collateral Servicing Department
P.O. Box 2705
Winston-Salem, NC 27199-8182
I here certify th t t d ss of the Bank (Mortgagee) stated below is correct.
e?
, X-4169 t-7
Mic bards, S for ice President
OPEN-END MORTGAGE AND ASSIGNMENT OF RENTS
This MORTGAGE AND ASSIGNMENT OF RENTS (hereafter referred to as "Mortgage") made August 7,
2007, by and between Wachovia Bank, National Association, a national banking association, whose
address is Philadelphia, Pennsylvania 19109 ("Bank"), and Henry L. Stetler, whose address is 853
Englesville Hill Road, Boyertown, Pennsylvania 19512 ("Mortgagor"). Bank is the mortgagee hereunder
for indexing purposes by the clerk of court.
WITNESSETH:
To secure payment and performance of obligations under a Promissory Note (the "Note")
dated August 7, 2007, in the amount of $1,700,000.00, made by Mortgagor payable to Bank, this
Mortgage), any present or future Letters of Credit issued by Bank for the account of Mortgagor, other loan
documents as defined in the Note (the "Loan Documents"), and swap agreements (as defined in 11
U.S.C. § 101, as in effect from time to time), all other indebtedness of Mortgagor to Bank whenever
borrowed or incurred, whether or not reasonably contemplated by the parties hereto as of the date hereof,
and any renewals, extensions, novations, or modifications of the foregoing (collectively the "Obligations"),
and in consideration of these premises and for other consideration, Mortgagor does mortgage, grant and
convey unto Bank (for itself and its affiliates), its successors and assigns all of Mortgagor's right, title and
interest now owned or hereafter acquired in and to each of the following (collectively, the "Property"): (i)
all those certain tracts of land in the Townships of Hampden and Silver Spring, County of Cumberland,
Commonwealth of Pennsylvania described in EXHIBIT A attached hereto and made part hereof (the
545724(Rev 21.U) WPS11476819585002 CDDOTMXXXX mi main.doc
f?
?^I
h?I
"Land"); (ii) all buildings and improvements now or hereafter erected on the Land; (iii) all fixtures attached
to the Land or any buildings or improvements situated thereon; and (iv) all estates, rights, tenements,
hereditaments, privileges, rents, issues, profits easements, and appurtenances of any kind benefiting the
Land; all means of access to and from the Land, whether public or private; and all water and mineral
rights.
In the event that Mortgagor is the owner of a leasehold estate with respect to any portion of the
Property and Mortgagor obtains a fee estate in such portions of the Property, then, such fee estate shall
automatically, and without further action of any kind on the part of the Mortgagor, be and become subject
to the security title and lien of this Agreement.
TO HAVE AND TO HOLD the Property and all the estate, right, title and interest, in law and in
equity, of Mortgagor's in and to the Property unto Bank, its successors and assigns, forever.
Mortgagor WARRANTS AND REPRESENTS that Mortgagor is lawfully seized of the Property, in
fee simple, absolute, that Mortgagor has the legal right to convey and encumber the same, and that the
Property is free and clear of all liens and encumbrances. Mortgagor further warrants and will forever
defend all and singular the Property and title thereto to Bank and Bank's successors and assigns, against
the lawful claims of all persons whomsoever.
PROVIDED ALWAYS that if (i) all the Obligations (including without limitation, all termination
payments and any other amounts due under or in connection with any swap agreements (as defined in 11
U.S.C. § 101, as in effect from time to time) secured hereunder) are paid in full, (ii) each and every
representation, warranty, agreement, covenant and condition of this Mortgage, and the other Loan
Documents, are complied with and abided by, and (iii) any and all swap agreements (as defined in 11
U.S.C. § 101, as in effect from time to time) secured hereunder have matured or been terminated, then
this Mortgage and the estate hereby created shall cease and be null, void, and canceled of record.
follows:
To protect the security of this Mortgage, Mortgagor further represents and agrees with Bank as
Payment of Obligations. That the Obligations shall be timely paid and performed.
Future Advances. This Mortgage is given to secure not only existing Obligations, but also future
advances, including obligations under swap agreements (as defined in 11 U.S.C. § 101, as in effect from
time to time) to the same extent as if such future advances and obligations under swap agreements (as
defined in 11 U.S.C. § 101, as in effect from time to time) are made on the date of the execution of this
Mortgage. The principal amount (including any swap agreements (as defined in 11 U.S.C. § 101, as in
effect from time to time) and future advances) that may be so secured may decrease or increase from
time to time, but the total amount so secured at any one time shall not exceed $3,400,000.00, plus all
interest, costs, reimbursements, fees and expenses due under this Mortgage and secured hereby.
Mortgagor shall not execute any document that impairs or otherwise impacts the priority of any existing or
future Obligations secured by this Mortgage.
Nothing herein obligates Bank to provide credit in excess of the Obligations.
Leases, Subleases and Easements. Mortgagor shall maintain, enforce and cause to be
performed all of the terms and conditions under any lease, sublease or easement which may constitute a
portion of the Property. Mortgagor shall not, without the consent of Bank (which consent shall not be
unreasonably withheld or delayed), enter into any new lease of all or any portion of the Property, agree to
the cancellation or surrender under any lease of all or any portion of the Property, agree to prepayment of
rents, issues or profits (other than rent paid at the signing of a lease or sublease), modify any such lease
so as to shorten the tern, decrease the rent, accelerate the payment of rent, or change the terms of any
renewal option; and any such purported new lease, cancellation, surrender, prepayment or modification
made without the consent of Bank shall be void as against Bank.
545724 (Rev 21.0) Page 2 mi main.doc
Required Insurance. Mortgagor shall maintain with respect to the Property: (i) during
construction of any improvements on the Property, "all-risk" builders risk insurance which must include
windstorm, hail damage, fire and vandalism (non-reporting Completed Value with Special Cause of Loss
40 form), in an amount not less than the completed replacement value of the improvements under
0 construction, naming Bank as mortgagee and loss payee; (ii) upon completion of construction, upon
0 occupancy of any improvements, and at all other times, insurance against loss or damage by fire and
other casualties and hazards by insurance written on an "all risks" basis, including malicious mischief
coverage, in an amount not less than the replacement cost thereof, including coverage for loss of rents or
* 1 business interruption if applicable, naming Bank as loss payee and mortgagee; (iii) if the Property is
W required to be insured pursuant to the National Flood Reform Act of 1994, and the regulations
promulgated thereunder, flood insurance is required in the amount equal to the lesser of the loan amount
or maximum available under the National Flood Insurance Program, but in no event should the amount of
coverage be less than the value of the improved structure, naming Bank as mortgagee and loss payee. If,
after closing, the Property (or any part thereof) is remapped and if the vertical improvements are
determined to be located in a special flood hazard area, Mortgagor must obtain and maintain a flood
insurance policy. If, within forty-five (45) days of receipt of notification from Bank that the Property has
been reclassified by FEMA as being located in a special flood hazard area, Mortgagor has not provided
sufficient evidence of flood insurance, Bank is mandated under federal law to purchase flood insurance
on behalf of Mortgagor, and Bank will add the associated costs to the principal balance of the Note. If the
land or any portion thereof is located in a special flood hazard area, this Agreement may be terminated by
Bank at its sole option; (iv) as applicable, insurance which complies with the workers' compensation and
employers' liability laws of all states in which Mortgagor shall be required to maintain such insurance; and
(v) liability insurance providing coverage in such amount as Bank may require but in no event less than
$1,000,000.00 combined single limit, naming Bank as an additional insured; and (vi) such other insurance
as Bank may require from time to time.
All property insurance policies shall contain an endorsement or agreement by the insurer in form
satisfactory to Bank that any loss shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of Mortgagor and the further agreement (within both the property
and liability policies) of the insurer waiving rights of subrogation against Bank, and rights of set-off,
counterclaim or deductions against Mortgagor.
All insurance policies shall be in form, provide coverages, be issued by companies and be in
amounts satisfactory to Bank. At least 30 days prior to the expiration of each such policy, Mortgagor shall
furnish Bank with evidence satisfactory to Bank that such policy has been renewed or replaced or is no
longer required hereunder. All such policies shall provide that the policy will not be canceled or materially
amended without at least 30 days prior written notice to Bank. In the event Mortgagor fails to provide,
maintain, keep in force, and furnish to Bank the .policies of insurance required by this paragraph, Bank
may procure such insurance or single-interest insurance in such amounts, at such premium, for such risks
and by such means as Bank chooses, at Mortgagor's expense; provided however, Bank shall have no
responsibility to obtain any insurance, but if Bank does obtain insurance, Bank shall have no
responsibility to assure that the insurance obtained shall be adequate or provide any protection to
Mortgagor.
Insurance Proceeds. After occurrence of any loss to any of the Property, Mortgagor shall give
prompt written notice thereof to Bank.
In the event of such loss all insurance proceeds, including unearned premiums, shall be payable
to Bank, and Mortgagor hereby authorizes and directs any affected insurance company to make payment
of such proceeds directly to Bank and not to Bank and Mortgagor jointly. Bank is hereby authorized by
Mortgagor to make proof of loss if not promptly made by Mortgagor, settle, adjust or compromise any
claims for loss or damage under any policy or policies of insurance and Mortgagor appoints Bank as its
attorney-in-fact to receive and endorse any insurance proceeds to Bank, which appointment is coupled
with an interest and shall be irrevocable as long as any Obligations remain unsatisfied. Mortgagor shall
pay the costs of collection, including attorneys' fees, of insurance proceeds payable on account of such
damage or destruction. Mortgagor shall have no claim against the insurance proceeds, or be entitled to
545724 (Rev 21.0) Page 3 mi main.doc
any portion thereof, and all rights to the insurance proceeds are hereby assigned to Bank as security for
payment of the Obligations.
In the event of any damage to or destruction of the Property, Bank shall have the option of
applying or paying all or part of the insurance proceeds to (i) the Obligations in such order as Bank may
0 determine, (i) restoration, replacement or repair of the Property in accordance with Bank's standard
NCI construction loan disbursement conditions and requirements, or (iii) Mortgagor. Nothing herein shall be
0 deemed to excuse Mortgagor from restoring, repairing and maintaining the Property as required herein.
H Impositions; Escrow Deposit. Mortgagor will pay all taxes, levies, assessments and other fees
W and charges imposed upon or which may become a lien upon the Property under any law or ordinance
(all of the foregoing collectively "Impositions") before they become delinquent and in any event in the
same calendar year in which they first become due. Upon request of Bank, Mortgagor shall add to each
periodic payment required under the Note the amount estimated by Bank to be sufficient to enable Bank
IN to pay, as they come due, all Impositions and insurance premiums which Mortgagor is required to pay
?.? hereunder. Payments requested under this provision shall be supplemented or adjusted as required by
Bank from time to time. Such funds may be commingled with the general funds of Bank and shall not
earn interest. Upon the occurrence of a Default, Bank may apply such funds to pay any of the
Obligations.
Use of Property. Mortgagor shall use and operate, and require its lessees or licensees to use
and operate, the Property in compliance with all applicable laws (including, for example, the Americans
with Disabilities Act and the Fair Housing Act) and ordinances, covenants, and restrictions, and with all
applicable requirements of any lease or sublease now or hereafter affecting the Property. Mortgagor
shall not permit any unlawful use of the Property or any use that may give rise to a claim of forfeiture of
any of the Property. Mortgagor shall not allow changes in the stated use of Property from that disclosed
to Bank at the time of execution hereof. Mortgagor shall not initiate or acquiesce to a zoning change of
the Property without prior notice to, and written consent of, Bank.
Maintenance, Repairs and Alterations. Mortgagor shall keep and maintain the Property in
good condition and repair and fully protected from the elements to the satisfaction of Bank. Mortgagor
will not remove, demolish or structurally alter any of the buildings or other improvements on the Property
(except such alterations as may be required by laws, ordinances or regulations) without the prior written
consent of Bank. Mortgagor shall promptly notify Bank in writing of any material loss, damage or adverse
condition affecting the Property.
Eminent Domain. Should the Property or any interest therein be taken or damaged by reason of
any public use or improvement or condemnation proceeding ("Condemnation"), or should Mortgagor
receive any notice or other information regarding such Condemnation, Mortgagor shall give prompt
written notice thereof to Bank. Bank shall be entitled to all compensation, awards and other payments or
relief granted in connection with such Condemnation and, at its option, may commence, appear in and
prosecute in its own name any action or proceedings relating thereto. Bank shall be entitled to make any
compromise or settlement in connection with such taking or damage. All compensation, awards, and
damages awarded to Mortgagor related to any Condemnation (the "Proceeds") are hereby assigned to
Bank and Mortgagor agrees to execute such further assignments of the Proceeds as Bank may require.
Bank shall have the option of applying or paying the Proceeds in the same manner as insurance
proceeds as provided herein. Mortgagor appoints Bank as its attorney-in-fact to receive and endorse the
Proceeds to Bank, which appointment is coupled with an interest and shall be irrevocable as long as any
Obligations remain unsatisfied.
Environmental Condition of Property and Indemnity. Mortgagor warrants and represents to
Bank, except as reported by Mortgagor to Bank in writing, that: (i) Mortgagor has inspected and is
familiar with the environmental condition of the Property; (ii) the Property and Mortgagor, and any
occupants of the Property, are in compliance with and shall continue to be in compliance with all
applicable federal, state and local laws and regulations intended to protect the environment and public
health and safety as the same may be amended from time to time ("Environmental Laws"); (iii) the
545724 (Rev 21.0) Page 4 mi main.doc
Property is not and has never been used to generate, handle, treat, store or dispose of, in any quantity,
oil, petroleum products, hazardous or toxic substances, hazardous waste, regulated substances or
hazardous air pollutants ("Hazardous Materials") in violation of any Environmental Laws; (iv) no
0 Hazardous Materials (including asbestos, mold or lead paint in any form) are located on or under the
Property or emanate from the Property; (v) there are no unregistered underground storage tanks on the
0 Property that are subject to any underground storage tank registration laws or regulations; (vi) no notice
H''i has been received with regard to any Hazardous Material on the Property; (vii) no action, investigation or
0 proceeding is pending or to Mortgagor's knowledge threatened which seeks to enforce any right or
H remedy against Mortgagor or the Property under any Environmental Law; and (viii) all licenses, permits
W and other governmental or regulatory actions necessary for the Property to comply with Environmental
0 Laws shall be obtained and maintained and Mortgagor shall assure compliance therewith.
1 Further, Mortgagor represents to Bank that no portion of the Property is a protected wetland.
Mortgagor agrees to notify Bank immediately upon receipt of any citations, warnings, orders, notices,
consent agreements, process or claims alleging or relating to violations of any Environmental Laws or to
the environmental condition of the Property and shall conduct and complete all investigations and all
cleanup actions necessary to comply with the Environmental Laws and to remove, in accordance with
Environmental Laws, any Hazardous Material from the Property.
Mortgagor shall indemnify, hold harmless, and defend Bank from and against any and all
damages, penalties, fines, claims, suits, liabilities, costs, judgments and expenses, including attorneys',
consultants' or experts' fees of every kind and nature incurred, suffered by or asserted against Bank as a
direct or indirect result of. (i) representations made by Mortgagor in this Section being or becoming
untrue in any material respect; (ii) Mortgagor's violation of or failure to meet the requirements of any
Environmental Laws; or (iii) Hazardous Materials which, while the Property is subject to this Mortgage,
exist on the Property. Bank shall have the right to arrange for or conduct environmental inspections of
the Property from time to time (including the taking of soil, water, air or material samples). The cost of
such inspections made after Default (as hereinafter defined) or which are required by laws or regulations
applicable to Bank shall be borne by Mortgagor. However, Mortgagor's indemnity shall not apply to any
negligent or intentional act of Bank which takes place after foreclosure or satisfaction of this Mortgage.
These indemnification obligations are in addition to General Indemnification provisions set forth hereafter.
Mortgagor's Obligations under this section shall continue, survive and remain in full force and effect
notwithstanding the repayment of the Obligations, a foreclosure of or exercise of power of sale under this
instrument, a delivery of a deed in lieu of foreclosure, a cancellation or termination of record of this
instrument and the transfer of the Property.
Appraisals. Mortgagor agrees that Bank may obtain an appraisal of the Property when required
by the regulations of the Federal Reserve Board or the Office of the Comptroller of the Currency, or any
other regulatory agency or at such other times as Bank may reasonably require. Such appraisals shall be
performed by an independent third party appraiser selected by Bank. The cost of such appraisals shall
be borne by Mortgagor. If requested by Bank, Mortgagor shall execute an engagement letter addressed
to the appraiser selected by Bank. Mortgagor's failure or refusal to sign such an engagement letter,
however, shall not impair Bank's right to obtain such an appraisal. Mortgagor agrees to pay the cost of
such appraisal within 10 days after receiving an invoice for such appraisal.
Inspections. Bank, or its representatives or agents, are authorized to enter at any reasonable
time upon any part of the Property for the purpose of inspecting the Property and for the purpose of
performing any of the acts it is authorized to perform under the terms of this Mortgage.
Liens and Subrogation. Mortgagor shall pay and promptly discharge all liens, claims and
encumbrances upon the Property. Mortgagor shall have the right to contest in good faith the validity of
any such lien, claim or encumbrance, provided: (i) such contest suspends the collection thereof or there
is no danger of the Property being sold or forfeited while such contest is pending; (ii) Mortgagor first
deposits with Bank a bond or other security satisfactory to Bank in such amounts as Bank shall
reasonably require; and (iii) Mortgagor thereafter diligently proceeds to cause such lien, claim or
encumbrance to be removed and discharged.
545724 (Rev 21.0) Page 5 mi main.doc
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Bank shall be subrogated to any liens, claims and encumbrances against Mortgagor or the
Property that are paid or discharged through payment by Bank or with loan proceeds, notwithstanding the
record cancellation or satisfaction thereof.
Waiver of Mortgagors Rights. To the fullest extent permitted by law, Mortgagor waives the
benefit of all laws now existing or that hereafter may be enacted providing for (i) any appraisement before
sale of any portion of the Property, (ii) in any way extending the time for the enforcement of the collection
of the Note or the debt evidenced thereby or any of the other Obligations, and any rights to hearing prior
to the exercise by Bank of any right, power, or remedy herein provided to Bank.
To the full extent Mortgagor may do so, Mortgagor agrees that Mortgagor will not at any time
insist upon, plead, claim or seek to take the benefit or advantage of any law now or hereafter in force
providing for any exemption (including homestead exemption), appraisement, valuation, stay, extension
or redemption, and Mortgagor for themselves and their respective heirs, devisees, representatives,
successors and assigns, and for any and all persons claiming any interest in the Property, to the extent
permitted by law, hereby waive and release all rights of valuation, appraisement, redemption, stay of
execution, the benefit of all exemption laws, notice of election to mature or declare due the whole of the
secured indebtedness and marshalling in the event of foreclosure of the liens hereby created. Mortgagor
further waives any and all notices including, without limitation, notice of intention to accelerate and of
acceleration of the Obligations.
Payments by Bank. In the event of Default (as hereinafter defined) in the timely payment or
performance of any of the Obligations, Bank, at its option and without any duty on its part to determine
the validity or necessity thereof, may pay the sums for which Mortgagor is obligated. Further, Bank may
pay such sums as Bank deems appropriate for the protection and maintenance of the Property including,
without limitation, sums to pay Impositions and other levies, assessments or liens, maintain insurance,
make repairs, secure the Property, maintain utility service, intervene in any condemnation and pay
attorneys' fees and other fees and costs to enforce this Mortgage or protect the lien hereof (including
foreclosure) or collect the Obligations, without limitation, including those incurred in any proceeding
including bankruptcy or arbitration. Any amounts so paid shall bear interest at the default rate stated in
the Note and shall be secured by this Mortgage.
Indemnification. Mortgagor shall protect, indemnify and save harmless Bank from and against
all losses, liabilities, obligations, claims, damages, penalties, fines, causes of action, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Damages") imposed
upon, incurred by or asserted or assessed against Bank on account of or in connection with (i) the Loan
Documents or any failure or alleged failure of Mortgagor to comply with any of the terms of, or the
inaccuracy or breach of any representation in, the Loan Documents; (ii) the Collateral or any claim of loss
or damage to the Property or any injury or claim of injury to, or death of, any person or property that may
be occasioned by any cause whatsoever pertaining to the Property or the use, occupancy or operation
thereof, (iii) any failure or alleged failure of Mortgagor to comply with any law, rule or regulation applicable
to it or to the Property or the use, occupancy or operation of the Property (including, without limitation, the
failure to pay any taxes, fees or other charges), (iv) any Damages whatsoever by reason of any alleged
action, obligation or undertaking of Bank relating in any way to or any matter contemplated by the Loan
Documents, (v) any claim for brokerage fees or such other commissions relating to the Property or any
other Obligations, or (vi) any and all liability arising from any leases related to the Property. Nothing
contained herein shall require Mortgagor to indemnify Bank for any Damages resulting from Bank's gross
negligence or its willful and wrongful acts, and such indemnity shall be effective only to the extent of any
Damages that may be sustained by Bank in excess of any net proceeds received by it from any insurance
of Mortgagor (other than self-insurance) with respect to such Damages. The indemnity provided for
herein shall survive payment of the Obligations and shall extend to the officers, directors, employees and
duly authorized agents of Bank. In the event the Bank incurs any Damages arising out of or in any way
relating to the transaction contemplated by the Loan Documents (including any of the matters referred to
in this section), the amounts of such Damages shall be added to the Obligations, shall bear interest, to
545724 (Rev 21.0) Page 6 mi main.doc
the extent permitted by law, at the interest rate bome by the Obligations from the date incurred until paid
and shall be payable on demand.
N Assignment of Rents. Mortgagor hereby absolutely assigns and transfers to Bank all the
r„t leases, rents, issues and profits of the Property (collectively "Rents'). Although this assignment is
C) effective immediately, so long as no Default exists, Bank gives to and confers upon Mortgagor the
privilege under a revocable license to collect as they become due, but not prior to accrual, the Rents and
® to demand, receive and enforce payment, give receipts, releases and satisfactions, and sue in the name
C) of Mortgagor for all such Rents. Mortgagor represents there has been no prior assignment of leases or
H Rents, and agrees not to further assign such leases or Rents. Upon any occurrence of Default, the
W license granted to Mortgagor herein shall be automatically revoked without further notice to or demand
(0 upon Mortgagor, and Bank shall have the right, in its discretion, without notice, by agent or by a receiver
appointed by a court, and without regard to the adequacy of any security for the Obligations, (i) to enter
upon and take possession of the Property, (ii) notify tenants, subtenants and any property manager to
pay Rents to Bank or its designee, and upon receipt of such notice such persons are authorized and
Q directed to make payment as specified in the notice and disregard any contrary direction or instruction by
Mortgagor, and (iii) in its own name, sue for or otherwise collect Rents, including those past due, and
apply Rents, less costs and expenses of operation and collection, including attorneys' fees, to the
Obligations in such order and manner as Bank may determine or as otherwise provided for herein.
Bank's exercise of any one or more of the foregoing rights shall not cure or waive any Default or notice of
Default hereunder.
Due on Sale or Further Encumbrance or Transfer of an Interest in Mortgagor. Without the
prior written consent of Bank in each instance, Mortgagor shall not (i) sell, convey, transfer or encumber
the Property, or any part thereof or interest therein, whether legal or equitable, (ii) cause or permit any
transfer of the Property or any part thereof, whether voluntarily, involuntarily or by operation of law, or (iii)
enter into any agreement or transaction to transfer, or accomplish in form or substance a transfer, of the
Property. A "transfer" of the Property includes: (a) the direct or indirect sale, transfer or conveyance of
the Property or any portion thereof or interest therein; (b) the execution of an installment sale contract or
similar instrument affecting all or any portion of the Property; (c) if Mortgagor or any general partner or
member of Mortgagor, is a corporation, partnership, limited liability company, trust or other business
entity, the transfer, pledge, assignment or encumbrance (whether in one transaction or a series of
transactions) of any stock, partnership, limited liability company or other ownership interests in such
corporation, partnership, limited liability company or entity including, without limitation, changes in
stockholders, partners, members, managers, trustees, beneficiaries, or their respective interests; whether
directly or indirectly; (d) if Mortgagor, or any general partner or member of Mortgagor, is a corporation, the
creation or issuance of new stock by which an aggregate of more than 10% of such corporation's stock
shall be vested in a party or parties who are not now stockholders; and (e) an agreement by Mortgagor
leasing all or a substantial part of the Property for other than actual occupancy by a space tenant
thereunder or a sale, assignment or other transfer of or the grant of a security interest in and to any
Leases.
Bank's consent to any conveyance or encumbrance may be conditioned upon an increase in the
interest rate specified in the Note (or other Obligations), an extension or curtailment of the maturity of the
Obligations, or other modification of the Note or this instrument.
Remedies of Bank on Default. Failure of Mortgagor or any other person liable to timely pay or
perform any of the Obligations is a default ("Default") under this Mortgage. Upon the occurrence of
Default the following remedies are available, without limitation, to Bank: (i) Bank may exercise any or all
of Bank's remedies under this Mortgage or other Loan Documents including, without limitation,
acceleration of the maturity of all payments and Obligations, other than Obligations under any swap
agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) with Bank or any of its affiliates,
which shall be due in accordance with and governed by the provisions of said swap agreements (as
defined in 11 U.S.C. § 101, as in effect from time to time); (ii) Bank may take immediate possession of the
Property or any part thereof (which Mortgagor agrees to surrender to Bank) and manage, control or lease
the same to such persons and at such rental as it may deem proper and collect and apply Rents to the
545724 (Rev 21.0) Page 7 mi main.doc
payment of. (a) the Obligations, together with all costs and attorneys' fees; (b) all Impositions and any
other levies, assessments or liens which may be prior in lien or payment to the Obligations, and premiums
for insurance, with interest on all such items; and (c) the cost of all alterations, repairs, replacements and
expenses incident to taking and retaining possession of the Property and the management and operation
!„t thereof, all in such order or priority as Bank in its sole discretion may determine. The taking of
0 possession shall not prevent concurrent or later proceedings for the foreclosure sale of the Property; (iii)
N? Bank may apply to any court of competent jurisdiction for the appointment of a receiver for all purposes
0 including, without limitation, to manage and operate the Property or any part thereof, and to apply the
r„I Rents therefrom as hereinabove provided. In the event of such application, Mortgagor consents to the
W appointment of a receiver, and agrees that a receiver may be appointed without notice to Mortgagor,
W without regard to whether Mortgagor has committed waste or permitted deterioration of the Property,
W without regard to the adequacy of any security for the Obligations, and without regard to the solvency of
Mortgagor or any other person, firm or corporation who or which may be liable for the payment of the
Obligations; (iv) Bank may exercise all the remedies of a mortgagee as provided by law and in equity
including, without limitation, foreclosure upon this Mortgage and sale of the Property, or any part of the
0 Property, at public sale conducted according to applicable law (referred to as "Sale") and conduct
additional Sales as may be required until all of the Property is sold or the Obligations are satisfied; (v)
With respect to any portion of the Property governed by the UCC, Bank shall have all of the rights and
remedies of a secured party thereunder. Bank may elect to foreclose upon any Property that is fixtures
under law applicable to foreclosure of interests in real estate or law applicable to personal property; (vi)
Bank may bid at Sale and may accept, as successful bidder, credit of the bid amount against the
Obligations as payment of any portion of the purchase price; and (vii) Bank shall apply the proceeds of
Sale, first to any fees or attorney fees permitted Bank by law in connection with Sale, second to expenses
of foreclosure, publication, and sale permitted Bank by law in connection with Sale, third to the
Obligations, and any remaining proceeds as required by law.
Miscellaneous Provisions. Mortgagor agrees to the following: (i) All remedies available to
Bank with respect to this Mortgage or available at law or in equity shall be cumulative and may be
pursued concurrently or successively. No delay by Bank in exercising any remedy shall operate as a
waiver of that remedy or of any Default. Any payment by Bank or acceptance by Bank of any partial
payment shall not constitute a waiver by Bank of any Default; (ii) Mortgagor represents that Mortgagor (a)
is (1) an adult individual and is sui iuris, or (2) a corporation, general partnership, limited partnership,
limited liability company or other legal entity, duly organized, validly existing and in good standing under
the laws of its state of organization, and is authorized to do business in each other jurisdiction wherein its
ownership of property or conduct of business legally requires such organization (b) has the power and
authority to own its properties and assets and to carry on its business as now being conducted and as
now contemplated; and (c) has the power and authority to execute, deliver and perform, and by all
necessary action has authorized the execution, delivery and performance of, all of its obligations under
this Mortgage and any other Loan Document to which it is a party. (iii) The provisions hereof shall be
binding upon and inure to the benefit of Mortgagor, its heirs, personal representatives, successors and
assigns including, without limitation, subsequent owners of the Property or any part thereof, and shall be
binding upon and inure to the benefit of Bank, its successors and assigns and any future holder of the
Note or other Obligations; (iv) Any notices, demands or requests shall be sufficiently given Mortgagor if in
writing and mailed or delivered to the address of Mortgagor shown above or to another address as
provided herein and to Bank if in writing and mailed or delivered to Wachovia Bank, National Association,
Mail Code VA7628, P. O. Box 13327, Roanoke, VA 24040 or Wachovia Bank, National Association, Mail
Code VA7628, 10 South Jefferson Street, Roanoke, VA 24011, or such other address as Bank may
specify from time to time and in the event that Mortgagor changes Mortgagor's address at any time prior
to the date the Obligations are paid in full, that party shall promptly give written notice of such change of
address by registered or certified mail, return receipt requested, all charges prepaid. Notices to Bank
must include the mail code. (v) All payments shall be mailed to Commercial Loan Services, P. O. Box
740502, Atlanta, GA 30374-0502; or such other address as provided by Bank in writing. (vi) This
Mortgage may not be changed, terminated or modified orally or in any manner other than by an
instrument in writing signed by the parties hereto; (vii) All references to "Bank" shall mean to "Bank (for
itself and its affiliate)% (viii) The captions or headings at the beginning of each paragraph hereof are for
the convenience of the parties and are not a part of this Mortgage; (ix) If the lien of this Mortgage is
545724 (Rev 21.0) Page 8 mi main.doc
invalid or unenforceable as to any part of the Obligations, the unsecured portion of the Obligations shall
be completely paid (and all payments made shall be deemed to have first been applied to payment of the
unsecured portion of the Obligations) prior to payment of the secured portion of the Obligations and if any
clause, provision or obligation hereunder is determined invalid or unenforceable the remainder of this
Mortgage shall be construed and enforced as if such clause, provision or obligation had not been
j contained herein; (x) This Mortgage shall be governed by and construed under the laws of the jurisdiction
where this Mortgage is recorded; (xi) Mortgagor by execution and Bank by acceptance of this Mortgage
0 agree to be bound by the terms and provisions hereof. Final Agreement. This Agreement-and the other
H Loan Documents represent the final agreement between the parties and may not be contradicted by
W evidence of prior, contemporaneous or subsequent agreements of the parties. There are no unwritten
agreements between the parties.
Minimum Standards. In addition to the requirements set forth in the Loan Documents, all surveys,
insurance, title policies, construction documents, environmental reports, payment and performance
IN bonds, and any other due diligence or additional documents required in connection with this Loan, shall
comply with Bank's minimum standards in place from time to time for such documents, which shall be
provided in writing by Bank to Borrower upon request.
CONFESSION OF JUDGMENT FOR POSSESSION. FOR THE PURPOSE OF OBTAINING
POSSESSION OF THE 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 BANK FOR THE
RECOVERY BY BANK OF POSSESSION OF THE PROPERTY, FOR WHICH THIS MORTGAGE (OR A
COPY THEREOF VERIFIED BY AFFIDAVIT) SHALL BE A SUFFICIENT WARRANT; WHEREUPON A
WRIT OF POSSESSION OF THE PROPERTY MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR
WRIT OR PROCEEDING WHATSOEVER AND WITHOUT STAY OF EXECUTION, MORTGAGOR
HEREBY RELEASING AND AGREEING TO RELEASE BANK 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 BANK SHALL HAVE FILED IN SUCH
ACTION AN AFFIDAVIT MADE ON BANK'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 PROPERTY REMAIN IN OR BE RESTORED TO
MORTGAGOR OR ANYONE CLAIMING UNDER, BY, OR THROUGH MORTGAGOR, BANK MAY,
WHENEVER AND AS OFTEN AS BANK SHALL HAVE THE RIGHT TO TAKE POSSESSION AGAIN OF
THE PROPERTY, BRING ONE OR MORE FURTHER ACTIONS IN THE MANNER HEREINBEFORE
SET FORTH TO RECOVER POSSESSION OF THE PROPERTY AND TO CONFESS JUDGMENT
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 PROPERTY.
545724 (Rev 21.0) Page 9 m. mauGdoc
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IN WITNESS WHEREOF, Mortgagor
and year first above written.
Commonwealth of Penns Ivania
County ofsrIeneEMp,N-CDh$-
signed and s96j6d this instrument as of the day
Individual Acknowledgment
I certify that Henry L. Stetler, a person(s) known to me, appeared before me this day, and being
informed of the contents thereof, acknowledged execution of the foregoing instrument.
Witness my hand and official seal, this y of.
r 'r- Y'A'j 6-1,tA gA j Notary Public
Notary Seal
(Printed Name of Notary)
CAT - Deal # 1476207585 Facility ID 1476819585
545724 (Rev 21.0)
My Comm ission.Expires:
NOTARIAL sEEAAL?•••?••
RICHARD L GEIGER
Notary Public
P07MONNBOROW4f, MONMOMERYCOLM
My Commisslon Expires Sep 23.2007
Page 10
mi main.doc
EXHIBIT A
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This Exhibit A is attached to a certain Mortgage by and between Henry L. Stetler, and Wachovia Bank,
National Association, securing that certain Promissory Note of even date herewith executed by
Henry L. Steller in the amount of $1,700,000.00 dated August 7, 2007.
Premises: 150 Silver Spring Road Townships of Hampden and Silver Spring County of
Cumberland, Commonwealth of Pennsylvania, Parcel ID 10-1838-037A-0000000-10
545724 (Rev 21.0)
mi mah.doc
First American Title Insurance Company
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Commitment No. RP-5728
SCHEDULE C
Legal Description
(continued)
TRACT NO. THREE - HAMPDEN AND SILVER SPRING TOWNSHIPS:
Beginning at an iron pin located at the southeastern corner of lands now or formerly of Donald Braun,
which pin is also at the northeastern corner of lands now or formerly of Universal Suppliers Realty, Inc.,;
thence eastwardly along lands now or formerly of William R. Foust and Arlene V. Foust, North seventy
degrees fifty-four minutes forty-eight seconds East, a distance of one hundred sixty-five and thirteen
hundredths (165.13) feet to a point; thence along the same, South forty-six degrees two minutes thirty-
four seconds East, thirty-one and eighty-nine hundredths (31.89) feet to a point; thence along the same,
South nine degrees four minutes twenty-seven seconds West, three hundred seventy-five and fifty-nine
hundredths (375.59) feet to a point at the northeastern corner of lands now or formerly of John B. Sieck;
thence along the northern line of said lands of Sieck, South seventy-three degrees twenty-four minutes
forty-nine seconds West, fifty-six and seventy-four hundredths (56.74) feet to a point on the northern line
of the aforementioned lands now or formerly of Universal Suppliers Realty, Inc.; thence along the same,
North nine degrees two minutes two seconds West, two hundred seventy-eight and sixty hundredths
(278.60) feet to a point; thence along the same, North fifteen degrees seven minutes fifty seconds West,
eighty-two and ninety-five hundredths (82.95) feet to an iron pin, the place of beginning. Being Lot No. 2
on the Final Subdivision Plan for William Foust prepared by C.W. Junkins Assoc., Inc., registered
surveyor, dated July 28, 1989(Final revision February 16, 1990) and recorded in Cumberland County Plan
Book 60 at Page 65.
UNDER AND SUBJECT to existing building restrictions, township ordinances, easements and rights-of-
way of roads, privileges or rights of public service companies, easements or restrictions of record and
visible upon the premises and such easements, rights-of-way, setback lines, restrictions and covenants as
appear on the aforementioned Final Subdivision Plan of Lot No. 2, which plan is intended to be recorded;
and
FURTHER, UNDER AND SUBJECT to the reservation by William R. Foust and Arlene V. Foust of an
easement or right-of way, without limitation, over, along, across and through the parcel hereinabove
described for the benefit of Fousts, their heirs, administrators, executors, successors, assigns, tenants,
subtenants and any and all persons or entities who may now or hereafter be the owners or occupiers of
other lands now owned by Fousts of which the hereinabove described tract formerly formed a part or any
part or portion thereof, and for the benefit of the guests, customers, invitees or visitors of any or all of
them, for the purposes of access, ingress and regress for any purpose from and to the other lands now
owned by Fousts of which the hereinabove described tract formerly formed a part or any part or portion
thereof from and to that certain highway or roadway known as the Silver Spring Road (L.R. 21051) as
said highway or roadway is now or may hereafter be located.
BEING Parcel No. 10-20-1838-037A
BEING the same premises which Universal Suppliers Realty, Inc., A PA Business Corporation by Deed
dated September 5, 1996 and recorded September 27, 1996 in the Office for the Recorder of Deeds in and
for Cumberland County in Deed Book 146 page 688, granted and conveyed unto Douglas W. George and
Kimberly A. George, husband and wife, in fee.
PA-3
Ca
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ROBERT P. ZIEGLER
RECORDER OF DEEDS
CUMBERLAND COUNTY
1 COURTHOUSE SQUARE
CARLISLE, PA 17013
717-240-6370
Instrument Number - 200732055
Recorded On 8/15/2007 At 11:49:03 AM
* Instrument Type - MORTGAGE
Invoice Number - 2210 User ID - RAK
* Mortgagor - STETLER, HENRY L
* Mortgagee - WACHOVIA BANK N A
* Customer - PENN TITLE
* FEES
STATE WRIT TAR $0.50
STATE JCS/ACCESS TO $10.00
JUSTICE
RECORDING FEES - $27.50
RECORDER OF DEEDS
AFFORDABLE HOUSING $11.50
COUNTY ARCHIVES FEE $2.00
ROD ARCHIVES FEE $3.00
TOTAL PAID $54.50
Certification Page
DO NOT DETACH
This page is now part
of this legal document.
I Certify this to be recorded
in Cumberland County PA
of c
RECORDER O /DZDS
t?ao
* - Information denoted by an asterisk may change during
the verification process and may not be reflected on this page.
* Total Pages - 13
NIRIINALIINN
C
doi
FIRST EXTENSION AND MODIFICATION
OF FORBEARANCE AGREEMENTS
This First Extension and Modification of Forbearance Agreements (the "First
Extension") is made on this 13th day of July, 2010, by and among CLASSIC TRUCK
ASSOCIATES, INC., a Pennsylvania corporation with offices at 191 County Line Road,
Boyertown, PA 19512 ("Classic Truck"); YOUR BEER MAN, INC., a Pennsylvania
corporation with offices at 191 County Line Road, Boyertown, PA 19512 ("Beer Man");
HENRY L. STETLER, an adult individual with an address at 853 Englesville Hill Road,
_Boyertown, PA 1-9504--("Henry Stetler;' and-collectively- with Classic-Truck-and-Beer-Man the
"Borrowers"); STETLER SERVICE CORPORATION, a Pennsylvania corporation with
offices at 191 County Line Road, Boyertown, PA 19512 ("Stetler Service Corp."); 2°d ATTIC
SOUTH AND SPRUCE, LLC, a Pennsylvania limited liability company with an address at
1028 Commerce Drive, Pottstown, PA 19464 ("2nd Attic," and collectively with Stetler Service
Corp., the "Corporate Guarantors"); DOUG A. STETLER, an adult individual with an address
at 2258 Old Route 100, Barto, PA 19504; DENISE L. CHRISTMAN, an adult individual with
an address at 41 South Werstler Avenue, Gilbertsville, PA 19525 (collectively, the "Individual
Guarantors," and together with the Corporate Guarantors and the Borrowers, the "Obligors") and
WELLS FARGO BANK, NATIONAL ASSOCIATION, successor-by-merger to Wachovia
Bank, National Association, a national banking association with a place of business at 123
South Broad Street, Philadelphia, Pennsylvania (the "Bank").
BACKGROUND
A. As set forth more fully below, the Obligors and the Bank have entered into certain
financing transactions (collectively, the "Loans").
The Classic Truck Loan
B. The Bank previously made certain loans and advances to Classic Truck (the
"Classic Truck Line of Credit") as evidenced by, inter alia, that certain Promissory Note dated
September 16, 2008, in the original principal amount of $2,000,000, and related instruments,
documents and agreements (collectively, the "Classic Truck Loan Documents").
C. The Individual Guarantors, the'Corporate Guarantors, Beer Man and Henry
Stetler are the joint and several unconditional guarantors of the obligations of Classic Truck to
the Bank, as set forth in (i) those certain Unconditional Guarantys, each dated October 10, 2007,
and (ii) that certain Unconditional Guaranty dated February 4, 2010 (collectively, the "Classic
Truck Guaranties").
D. On February 4, 2010, the Obligors and the Bank entered into a certain
Forbearance Agreement (the "Classic Truck Forbearance Agreement," and collectively with
related instruments, documents and agreements, the "Classic Truck Forbearance Documents")
with respect to certain defaults then existing under the Classic Truck Loan Documents and
Classic Truck Guaranties (as identified therein, the "Initial Classic Truck Defaults").
ME1 10228763v.3 1
E. The Classic Truck Forbearance Agreement expired, by its terms, on June 30,
2010.
The Beer Man Loan
F. The Bank previously made certain loans and advances to Beer Man (the "Beer
Man Line of Credit") pursuant to the terms and subject to the conditions of, inter alia, that certain
Promissory Note dated May 17, 2005, in the original principal amount of $100,000, and related
instruments, documents and agreements (collectively, the "Beer Man Loan Documents").
G. Classic Truck, Stetler Service Corp., Doug Stetler and Henry Stetler are the joint
and several unconditional guarantors of the obligations of Beer Man to the Bank, as set forth in
those certain Unconditional Guarantys, each dated October 24, 2003 (collectively, the "Beer
Man Guaranties").
H. On February 25, 2010, Beer Man, Classic Truck, Stetler Service Corp., Doug
Stetler, Henry Stetler and the Bank entered into a certain Loan Extension and Modification
Agreement (the "Beer Man Modification Agreement," and collectively with related instruments,
documents and agreements, the "Beer Man Modification Documents") which set forth the terms
and conditions on which the Bank was willing to extend the maturity date of the Beer Man Loan
Documents.
1. As set forth in the Beer Man Loan Documents and the Beer Man Modification
Documents, the Beer Man Line of Credit matured and became due and payable in full on June
30, 2010.
The Henry Stetler Loans
J. The Bank previously made certain loans and advances to Henry Stetler, including
(i) a term loan (the "Henry Stetler Term Loan") evidenced by, inter gLip, that certain Promissory
Note dated August 7, 2007, in the original principal amount of $1,700,000, and related
instruments, documents and agreements(collectively, the "Henry Stetler Term Loan
Documents") and (ii) a line of credit (the "Henry Stetler Line of Credit"), evidenced by, inter
alia, that certain Promissory Note dated March 20, 2009 in the original principal amount of
$75,000, and related instruments, documents and agreements (collectively, the "Henry Stetler
Line of Credit Loan Documents," and together with the Henry Stetler Term Loan Documents,
the "Henry Stetler Loan Documents"). The Henry Stetler Loan Documents, the Classic Truck
Loan Documents, and the Beer Man Loan Documents are collectively referred to as the "Loan
Documents."
K. Classic Truck, Beer Man, the Corporate Guarantors and the Individual Guarantors
are the joint and several unconditional guarantors of the obligations of Henry Stetler to the Bank,
as set forth in (i) those certain Unconditional Guarantys, each dated March 20, 2009, executed
and delivered by Classic Truck, Beer Man and Stetler Service Corp., (ii) those certain
Unconditional Guaranties, each dated August 7, 2007 executed and delivered by the Individual
Guarantors, and (iii) that certain Unconditional Guaranty dated February 4, 2010, executed and
delivered by 2"d Attic (collectively, the "Henry Stetler Guaranties"). The Henry Stetler
ME] 10228763v.3 2
Guaranties, the Classic Truck Guaranties and the Beer Man Guaranties are collectively referred
to as the "Guaranties."
L. The Obligors and the Bank agreed to modify and extend the terms of the Henry
Stetler Loan Documents as set forth in a certain Loan Extension and Modification Agreement
dated March 8, 2010 (the "Henry Stetler Modification Agreement") and related instruments,
documents and agreements, including but not limited to a Third Modification of Promissory Note
of even date therewith (collectively with the Henry Stetler Modification Agreement, the "Henry
Stetler Modification Documents").
M. Pursuant to the terms of the Henry Stetler Line of Credit Loan Documents and the
Henry Stetler Modification Documents, the Henry Stetler Line of Credit matured and became
due and payable in full on June 30, 2010.
Defaults
N. The Obligors are in default of the Loan Documents and the Guaranties for, inter
alia: (i) the Initial Classic Truck Defaults; (ii) failure to repay the Classic Truck Line of Credit at
the expiration of the Classic Truck Forbearance Agreement on June 30, 2010; (iii) failure to
repay the Beer Man Line of Credit at the maturity thereof on June 30, 2010, and (iv) failure to
repay the Henry Stetler Line of Credit at the maturity thereof on June 30, 2010 (collectively, the
"Existing Defaults").
0. By reason of the Existing Defaults, the Bank has determined to accelerate the
balance due under the Henry Stetler Term Loan Documents.
P. The Obligors have requested that the Bank temporarily extend the Classic Truck
Forbearance Agreement and forbear from the exercise of its rights and remedies with respect to
the Existing Defaults in order to allow the Obligors to obtain permanent refinancing of the
Loans.
Q. The Bank is willing to forbear only as set forth herein.
NOW THEREFORE, with the foregoing Background provisions deemed incorporated
herein, and in consideration of the mutual promises set forth below, and intending to be legally
bound hereby, Obligors and Bank agree as follows:
Section 1 Definitions. All capitalized terms which are used, but not otherwise defined,
herein shall have the meanings given in the Classic Truck Forbearance Agreement, the Beer
Man Modification Agreement and/or the Henry Stetler Modification Agreement. In
addition, the following terms shall have the following meanings:
1.1 "Collateral" shall mean, collectively, all Collateral, as that term is defined in each of the
Classic Truck Forbearance Agreement, the Beer Man Modification Agreement and the
Henry Stetler Modification Agreement.
1.2 "Existing Defaults" shall have the meaning given in the Background above and shall no
longer have the meaning given in the Classic Truck Forbearance Agreement.
MEl 10228763x.3 3 ;
1.3 "Obligations" means, collectively, the obligations of each of the Obligors:
1.3.1 To pay the principal and interest on the Loans in accordance with the terms of the
Loan Documents, as the same may have been modified by the Beer Man
Modification Documents and/or the Henry Stetler Modification Documents, and to
satisfy all of such Obligor's other existing and future debts, liabilities and
obligations to Bank including, without limitation, any indebtedness of such Obligor
to others which Bank may acquire by assignment or otherwise, whether matured or
un nafured-difeet-or contingent; joint-or-several-,-including, without-limitation;-any, -
extensions, modifications, renewals thereof and substitutions therefor;
1.3.2 To repay to Bank all amounts advanced by Bank hereunder or otherwise to or for
the benefit of any of the Obligors including, without limitation, advances for
principal and/or interest payments to prior secured parties, mortgagees,
beneficiaries or other lienors, or for taxes, levies, insurance, rent, repairs to or
maintenance, storage or other preservation of all or any part of the Collateral; and
1.3.3 To pay all of the Bank's reasonable fees, expenses and costs in connection with
the preparation, negotiation, administration, amendment, modification or
enforcement of the Loan Documents and this First Extension, and the Bank's rights
hereunder and under the documents required hereunder, or any proceedings
(including, without limitation, bankruptcy or other insolvency proceedings) brought
or threatened to enforce payment of any of the Obligations, including, without
limitation, reasonable fees and expenses of the Bank's legal counsel, the cost of
appraisals and environmental assessments of property owned or occupied by any
Obligor, and the extraordinary expenses incurred by Bank in the administration,
modification or enforcement of this First Extension and the transactions evidenced
hereby.
1.4 "Modification Documents" means, collectively, the Classic Truck Forbearance Documents,
the Beer Man Modification Documents and the Henry Steder Modification Documents.
Section 2 Confirmation of Debt and Ratification of Existing Loan and Security
Interests.
2.1 Confirmation of Debt. The Obligors each hereby acknowledge, agree and confirm, without
condition or reservation, that each Obligor is indebted to the Bank pursuant to the Loan
Documents and Guaranties in the following amounts, and that, as of July 2, 2010, such
amounts are due and owing without offset, defense, claim or counterclaim of any kind or
nature:
Classic Truck Loan Documents:
Princi $410,496.07
Interest as of 7/02/2010: 131.13
Subtotal: $410,627.20
Beer Man Loan Documents:
ME1 10228763v.3 4
Principal: $80,000.00
Interest as of 7/02/2010 23.06
Subtotal: $80 023.06
Henry Stetler Term Loan Documents:
Principal: $1,596,492.53
Interest as of 7/02/2010 8,592.23
Subtotal: $1605,084.76
He Stetler Line of Credit Loan Documents:
_ _...._.... .......... $74,688.84
Interest as of 7/02/2010 20.75
Subtotal: $749709.59
Fees as of 7/02/2010:
Attorneys' $56,711.09
. Total: $2,227155.70
All of the foregoing, together with accrued and continually accruing interest at the rates set forth
in this First Extension, plus accrued and hereafter accruing costs, fees (including Bank's
reasonable attorneys' fees) and expenses made to preserve the Bank's priority security interest
and liens on the Collateral are due and owing without any claim, counterclaim, right of
recoupment, defense, deduction or offset of any kind or nature. The Obligors ratify and confirm
the validity, priority and effectiveness of the security interest granted to the Bank in the
Collateral as set forth in the Loan Documents and the Guaranties.
2.2 Ratification of Loan Documents and Guaranties. The Obligors each hereby ratify,
confirm, and acknowledge that the statements contained in the foregoing Background are true,
accurate and correct and that the Loan Documents and Guaranties are valid, binding and in full
force and effect as of the date hereof. The Obligors each hereby acknowledge and agree that
they have no defense, set-off, counterclaim or phallenge against the payment of any sums owing
under the Loan Documents or the Guaranties, the validity or extent of the liens and security
interests in the Collateral granted to Bank thereby, or the enforcement of any of the terms or
conditions thereof. Neither this First Extension, nor any of the agreements, instruments, or
documents executed in connection herewith, are in any way intended to constitute a novation of
any of the Loans.
Section 3 Amendments to Forbearance Agreement.
3.1 Forbearance Term. The Bank shall forbear from the exercise of its rights and
remedies with respect to the Existing Defaults until the earlier of (i) October 31, 2010, or (ii) the
occurrence of an Event of Default (other than the Existing Defaults) under the Loan Documents
or this First Extension (the "Forbearance Term").
3.2 Modification of Interest Rates.
3.2.1 Interest Rates. Commencing on July 1, 2010, interest shall accrue on the
unpaid principal balance of each of the Loans at the rate of Eight (8%) Percent der, annum
(the "Forbearance Rate").
ME] 10228763v.3 5
3.2.2 Default Rates. Upon the occurrence of an Event of Default, other than the
Existing Defaults, under this First Extension, interest shall accrue on each of the Loans at
the Forbearance Rate plus Five (5%) Percent per annum (the "Default Rate").
3.3 Repayment Terms. The Obligors shall make monthly payments on each of the Loans
as follows:
3.3.1 Classic Truck Line of Credit. The Obligors shall continue make monthly
payments of accrued interest on the Classic Truck Line of Credit, and shall continue
to liquidate the Veliieles and the Personal Property (as those terms are -defined in the--
Classic Truck Forbearance Agreement), and shall continue to deposit the proceeds
thereof in the Borrower's Account, in accordance with the terms of the Classic Truck
Forbearance Agreement. In any event, the Obligations under the Classic Truck Loan
Documents shall be due and payable in full at the expiration of the Forbearance Term.
3.3.2 Beer Man Line of Credit. Commencing on July 17, 2010, and continuing
on the same day of each consecutive calendar month thereafter through and including
October 17, 2010, the Obligors shall make monthly payments of accrued interest only
on the Beer Man Line of Credit. In any event, the Obligations under the Beer Man
Loan Documents shall be due and payable in full at the expiration of the Forbearance
Term.
3.3.3 Hena Stetler Line of Credit. Commencing on July 28, 2010, and
continuing on the same day of each consecutive calendar month thereafter through
and including October 28, 2010, the Obligors shall make monthly payments of
accrued interest only on the Henry Stetler Line of Credit. In any event, the
Obligations under the Henry Stetler Line of Credit Loan Documents shall be due and
payable in full at the expiration of the Forbearance Term.
3.3.4 Henry Stetler Term Loan. Commencing on July 7, 2010 and continuing
on the same day of each consecutive calendar month thereafter through and including
October 7, 2010, the Obligors shall make monthly payments of principal and interest
in the amount of $14,074.15 each on the Henry Stetler Term Loan. In any event, the
Obligations under the Henry Stetler Term Loan Documents shall be due and payable
in full at the expiration of the Forbearance Term.
3.4 Permanent Refinancin. The Obligors shall aggressively seek permanent refinancing
for the full amount of the Obligations, with the proceeds of such refinancing to be received by
the Bank on or before the expiration of the Forbearance Term, in accordance with the following
terms:
3.4.1 Refinancing Applications. In order to induce the Bank to enter into this
First Extension, the Obligors hereby represent that they have submitted, or will
submit prior to July 31, 2010, no fewer than two (2) formal applications for the
permanent refinancing of the Obligations (the "Applications"). The Obligors further
represent that the Applications have been, or will be, filed with a reputable lender or
broker, acceptable to the Bank in its sole discretion.
MEl 10228763v.3 16
3.4.2 Commitment Terms. On or before September 15, 2010, the Obligors shall
deliver to the Bank a written commitment for refinancing of Obligations in full (the
"Commitment"). The Commitment must be from a reputable lender and shall provide
for refinancing of the Obligations in full on terms and conditions acceptable to the
Bank in its sole discretion.
3.4.3 Closing of Permanent Refinancins?. The refinancing contemplated in the
Commitment must close, and the Bank must receive the proceeds of such refinancing
in an amount sufficient to repay the outstanding balance of the Obligations in full (the
"Renancmg Payment"), wifliin tliiiy-(30) day§ of the ilate?f tte -but--
in no event later than the expiration of the Forbearance Term. The Obligations will
remain due and owing in full at the expiration of the Forbearance Term, whether or
not the Obligors have timely delivered a Commitment to the Bank and whether or not
the Bank timely receives the Refinancing Payment.
3.4.4 Reporting. Commencing on Friday, July 23, 2010 and continuing on the
same day of each consecutive week thereafter, the Obligors must provide the Bank
with a report on the status of the Obligors' efforts to secure refinancing of the
Obligations, including without limitation copies of all Applications, any
documentation and inquiries, formal or informal, submitted to any lender or broker,
any correspondence or letters of interest, and all other information pertaining to the
status of the refinancing of the Obligations which the Bank may deem necessary in its
sole discretion.
3.4.5 Monthly Payments. The Obligors shall continue to make the monthly
payments required pursuant to section 3.3 above, whether or not a Commitment has
been delivered to the Bank, andwhether or not the Bank has approved or accepted
such Commitment, until such time as the Bank confirms to the Borrowers in writing
that the Bank has received the Refinancing Payment and that the Obligations have
been satisfied.
3.5 Forbearance Fee. The Obligors shall pay to the Bank a forbearance fee in the amount
of One (I%) Percent of the Obligations (the "Forbearance Fee"). The Forbearance Fee shall be
due and payable at the expiration of the Forbearance Term; provided, however, that in the event
the Obligors timely deliver the Commitment and the Refinancing Payment, in accordance with
the terms of Section 3.4 above, the Bank shall waive payment of the Forbearance Fee.
3.6 ALL AMOUNTS DUE ON OCTOBER 31, 2010 UNLESS OTHERWISE
ACCELERATED. EACH OBLIGOR ACKNOWLEDGES AND AGREES THAT ALL OF
THE OBLIGATIONS UNDER THE LOAN DOCUMENTS ARE DUE AND PAYABLE IN
FULL ON OR BEFORE OCTOBER 31, 2010, UNLESS SOONER ACCELERATED
FOLLOWING THE OCCURRENCE OF AN EVENT OF DEFAULT.
Section 4 Conditions Precedent. The effectiveness of this First Extension, and the
Bank's agreement to forbear as set forth herein, are conditioned upon the satisfaction of the
following conditions precedent:
ME] 10228763v.3 7
4.1 Execution and delivery of this First Extension and all instruments, documents, and
agreements required to be executed in connection herewith; and
4.2 The Obligors shall have paid Bank for all fees applicable to the negotiation and
administration of this First Extension, including without limitation the Bank's legal fees and
costs.
Section 5 Default; Remedies.
5:1-Evenfs-6f Default. M additiotito the Defaults dentified-in the LoanDocuments an the -- .. -
Modification Documents, the following shall constitute an Event of Default under this First
Extension:
5.1.1 Any Obligor shall fail to pay, when due, any installment of principal,
interest, or fee or other charge payable hereunder or under the Loan Documents
and the Modification Documents including the failure to pay, at the expiration of
the Forbearance Term, the Obligations to the Bank as and when due;
5.1.2 Any Obligor shall fail to observe or perform any other obligation or
covenant to be observed or performed by such Obligor hereunder or under any of
the Loan Documents or Modification Documents, or under any other existing or
future agreement between Borrower and the Bank other than the Existing
Defaults, and such failure continues for twenty (20) days after written notice to
such Obligor by the Bank;
5.1.3 If any financial statement, representation, warranty, statement or
certificate made or furnished to the Bank in connection with this First Extension,
or as inducement to the Bank to enter into this First Extension, or in any separate
statement or document to be delivered hereunder to the Bank, shall be materially
false, incorrect, or incomplete, when made;
5.1.4 The validity or enforceability of this First Extension, the Guaranties, the
Loan Documents or the Modification Documents shall be contested by any
Obligor or any other Person, or any Obligor shall deny that it has any or further
liability or obligation hereunder or thereunder; or
5.1.5 The occurrence of an uncured Event of Default, or a default under any
agreement by and between any Obligor and the Bank.
5.2 Remedies. Upon the occurrence of an Event of Default, the Bank shall have the following
rights (which are not intended to diminish, alter or limit Bank's rights described in the Loan
Documents, the Modification Documents, the Guaranties, this First Extension, or any related
instruments, agreements and documents):
5.2.1 To declare the Obligors in default under this First Extension, the
Modification Documents, the Loan Documents, the Guaranties, and all other
agreements with Bank, and upon written notice to Obligors, the Bank may declare
all existing and future liabilities, indebtedness and Obligations accelerated and
ME1 10228763v.3 8
immediately due and payable, including, without limitation, interest, principal,
expenses, advances to protect Bank's position and reasonable counsel fees to
enforce this First Extension, the Modification Documents, the Loan Documents,
the Guaranties, and all related instruments, agreements and documents, Bank's
rights hereunder and thereunder, all without demand, notice, presentment or
protest, or further action of any kind, except as specified herein; and
5.2.2 Interest shall accrue on the Obligations at the Default Rate set forth herein.
Ttie foregoing nglits arid?-iemedies are-in a drtiori-to, ari not-fi -Iieu o ,- a rig -ts an remedies
of the Bank as set forth in the Modification Documents, the Guaranties and Loan Documents,
and as are available under any applicable Law.
Section 6 Successors and Assigns. This First Extension shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective successors and assigns, but
shall not be assignable by any Obligor without the prior written consent of the Bank.
Section 7 Entire Agreement; Amendment; Waiver. This First Extension
constitutes the entire agreement between the Obligors and the Bank with respect to the subject
matter set forth in this First Extension, and supersedes all other prior agreements and
understandings, both written and oral, between the Obligors and the Bank with respect to such
matters. This First Extension may not be amended except by an instrument in writing signed by
all parties to this First Extension, nor shall there be a waiver any of the terms and conditions of
this First Extension except by writing duly signed by all of the Obligors and the Bank.
Section 8 Confession of Judgment. THE FOLLOWING PARAGRAPHS SET
FORTH A POWER OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT
AGAINST EACH OF THE OBLIGORS. IN GRANTING THIS WARRANT OF ATTORNEY
TO CONFESS JUDGMENT AGAINST OBLIGORS, EACH OBLIGOR, FOLLOWING
CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL FOR
SUCH OBLIGOR AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF,
HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND
UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS SUCH OBLIGOR HAS OR MAY
HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE
RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA,
COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE INCLUDING, WITHOUT
LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT OF
SUCH OBLIGOR'S BANK ACCOUNT AND OTHER ASSETS. EACH OBLIGOR
ACKNOWLEDGES AND UNDERSTANDS THAT BY ENTERING INTO THIS
FORBEARANCE AGREEMENT CONTAINING A CONFESSION OF JUDGMENT
CLAUSE THAT SUCH OBLIGOR IS VOLUNTARILY, INTELLIGENTLY AND
KNOWINGLY GIVING UP ANY AND ALL RIGHTS, INCLUDING
CONSTITUTIONAL RIGHTS, THAT SUCH OBLIGOR HAS OR MAY HAVE TO
NOTICE AND A HEARING BEFORE J'OGMENT CAN BE ENTERED AGAINST
OBLIGOR AND BEFORE OBLIGOR'S ASSETS, INCLUDING, WITHOUT
LIMITATION, BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED
UPON AND/OR ATTACHED. EACH OBLIGOR UNDERSTANDS THAT ANY SUCH
GARNISHMENT, LEVY, EXECUTION AND/OR ATTACHMENT SHALL RENDER
ME] 10228763v.3 9
THE PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED
IMMEDIATELY UNAVAILABLE TO SUCH OBLIGOR. IT IS SPECIFICALLY
ACKNOWLEDGED BY EACH OBLIGOR THAT THE BANK HAS RELIED ON THIS
WARRANT OF ATTORNEY AND THE RIGHTS WAIVED BY OBLIGOR IN ENTERING
INTO THIS FORBEARANCE AGREEMENT AND AS AN INDUCEMENT TO GRANT
FINANCIAL ACCOMMODATIONS TO THE OBLIGORS.
If an Event of Default occurs under this First Extension, each Obligor hereby authorizes
and empowers any attorney of any court of record or the prothonotary or clerk of any county in
_ ___...
the Comm . onwealth of Pennsylvania; or in any jurisd'ict'ion wher-permitted--by-Jaw-or-the -clerk of
any United States District Court, to appear for such Obligor in any and all actions which may be
brought hereunder and enter and confess judgment against such Obligor or any of them in favor
of the Bank for such sums as are due or may become due hereunder or under any other Loan
Documents, together with costs of suit and actual collection costs including, without limitation,
reasonable attorneys' fees equal to 5% of the Obligations then due and owing but in no event less
than $5,000.00, with or without declaration, without prior notice, without stay of execution and
with release of all procedural errors and the right to issue executions forthwith. No confessed
judgment shall be entered with respect to any "consumer credit transaction" as defined in Rule
2950 of the Pennsylvania Rules of Civil Procedure, but this exclusion shall not affect any
transaction or loan not so excluded. To the extent permitted by law, each Obligor waives the
right of inquisition on any real estate levied on, voluntarily condemns the same, authorizes the
prothonotary or clerk to enter upon the writ of execution this voluntary condemnation and agrees
that such real estate may be sold on a writ of execution; and also waive any relief from any
appraisement, stay or exemption law of any state now in force or hereafter enacted. Each
Obligor further waives the right to any notice and hearing prior to the execution, levy,
attachment or other type of enforcement of any judgment obtained hereunder, including,
without limitation, the right to be notified and heard prior to the garnishment, levy,
execution upon and attachment of such Obligor's bank accounts and other property. If a
copy of this First Extension verified by affidavit of any officer of the Bank shall have been filed
in such action, it shall not be necessary to file the original thereof as a warrant of attorney, any
practice or usage to the contrary notwithstanding. The authority herein granted to confess
judgment shall not be exhausted by any single exercise thereof, but shall continue and may be
exercised from time to time as often as the Bank shall find it necessary and desirable and at all
times until full payment of all amounts due hereunder and under any other Loan Documents.
The Bank may confess one or more judgments in the same or different jurisdictions for all or any
part of the obligations arising hereunder or under any other Loan Documents to which any
Obligor is a party, without regard to whether judgment has theretofore been confessed on more
than one occasion for the same Obligations. In the event that any judgment confessed against
one or more Obligors is stricken or opened upon application by or on behalf of such Obligor for
any reason, the Bank is hereby authorized and empowered to again appear for and confess
judgment against such Obligor for any part or all of the Obligations owing under this First
Extension and/or for any other liabilities owed under the Loan Documents, as herein provided.
Section 9 Release. Each Obligor, for itself and its successors, heirs, executors,
administrators, and assigns, hereby releases and forever discharges Bank and its officers,
directors, agents, and employees from all claims and causes of actions of any type or nature
whatsoever, known or unknown, that may now exist or may exist in the future as a result of any
event or events occurring before the date of this; First Extension having anything to do with the
ME1 10228763v.3 10
Forbearance Agreement, the Beer Man Modification Documents, the Henry Steder Modification
Documents, the Loan Documents, or the Loans reflected thereby.
Section 10 Headings. The section headings contained in this First Extension are
inserted for convenience only and shall not affect in any way the meaning or interpretation of
this First Extension.
Section 11 Counterparts. This First Extension may be executed in any number of
counterparts, and all such counterparts shall be deemed to be one in the same instrument.
---- --- ----------
Section 12 Governing Law. This First Extension shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without regard
to conflicts of law principles thereof.
IN WITNESS WHEREOF, and intending to be legally bound, the Obligors and Bank
have entered into this First Extension and Modification of Forbearance Agreements as of the date
written
YC
By:
ETLER S + VICE CORP.
By:
Doug A. to er, resident
CIATES, INC.
By:
SS'AS&tTe-r7,PS?tS§0dent
Dohm"-z ?-A DmAklw
BANK:
2nd ATTIC S ND SPRUCE, LLC
By:
Doug A. t e , ent
DOUG A. STETLER
WELLS FARGO BANK, NATIONAL ASSOCIATION,
successor-by-merger to Wachovia Bank, N.A.
By:
Charles B. Cook, Vice President
ME 110228763v.3
CORPORATE ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF _
On t 1s ay o 0, a ore me, a otary a 1c;
personally appeared DOUG STETLER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the President of CLASSIC TRUCK ASSOCIATES, INC. (the "Corporation"), and that
s/he executed the foregoing instrument on behalf of the Corporation, being authorized to do
so, for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL] - - NOTMM SQL PubUc
ANGELA S. 9oZERN m
CORPORATE ACKNOWLEDGM My Expkss<Ju?g, 1
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
ss.
On this 115 day of Tj-?X , 2010, before me, a Notary Public,
personally appeared DOUG STETLER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the President of STETLER SERVICE CORPORATION (the "Corporation'), and that s/he
executed the foregoing instrument on behalf of the Corporation, being authorized to do so,
for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
Nota Public
[SEAL]
M2M ff& TM ow Pw*avLw
L ANGELA s
A?? ZE s?
??F.xpira June 8, 74
MEI 102297630
CORPORATE ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
/,,,, ss.
COUNTY OF P^/r''
On this day of Jay 2010, before me, a Notary Public,
personally appeared HENRY STETLER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, andj vY -acknowledged-th@H
is the President of YOUR BEER MAN, INC. (the "Company"), and that he executed the
foregoing instrument on behalf of the Company, being authorized to do so, for the purposes
set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF btAJ?e?
On this 117 -day of( , 2010, before me, a Notary Public,
personally appeared DOUG STETLER, own (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the President of 2°a ATTIC SOUTH AND SPRUCE, LLC (the "Company"), and that he
executed the foregoing instrument on behalf of the Company, being authorized to do so, for
the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
ME 1 10228763x.3
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF BtAky
ss.
On this 0-7 day of PA/ '2010, before me, a Notary Public, personally
appeared HENRY L. STETLER, known (or satisfactorily proven) to me to be the person
whose name is su6scri-bed to tTervforegoing instrurtierit and-wlio acknowledge "t at- e-
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
ANGELA S. ZERN, Notery Public
Boyerlo" Borc., Bake county
y Comn*slon Expires June 8, 20'
ss.
COUNTY OF
On this J"'?_ day of -?f ' 2010, before me, a Notary Public, personally
appeared DOUG A. STETLER, known (or satisfactorily proven) to me to be the person
whose name is subscribed to the foregoing instrument, and who acknowledged that he
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
I P- A0. IV AA
N--
Nofary Public'
e 6 r
NOTAR AL SEAL
ANGELA S. ZERN, Public
Boyerbrm 80M., 8erlcs
My Commbslon Dxpkes June 8, 14
ME] 102287630
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OFP441
On this ? day of , 2010, before me, a Notary Public, personally
appeared DENTIM L. own (or satisfactorily proven) to me to be the person
whose name is subscribed-to the foregoinginstcilment, and wrho ackriowiedged"that §he
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
Nota4v Public
ANGELA S. 0ZERN Pubic
M., Boyelto>Mn t3oro gerErem
v Canff*W n EVk" MEN 102287630
?X?7a/T
SECOND EXTENSION
OF FORBEARANCE AGREEMENTS
This Second Extension of Forbearance Agreements (the "Second Extension") is made
on this 30th day of December, 2010, by and among CLASSIC TRUCK ASSOCIATES, INC.,
a Pennsylvania corporation with offices at 191 County Line Road, Boyertown, PA 19512
("Classic Truck"); YOUR BEER MAN, INC., a Pennsylvania corporation with offices at 191
County Line Road, Boyertown, PA 19512 ("Beer Man"); HENRY L. STETLER, an adult
individual with an address at 853 Englesville Hill Road, Boyertown, PA 19504 ("Henry Stetler,"
and collectively with Classic Truck and Beer Man, the "Borrowers"); STETLER SERVICE
CORPORATION, a Pennsylvania corporation with offices at 191 County Line Road,
Boyertown, PA 19512 ("Stetler Service Corp."); 2"d ATTIC SOUTH AND SPRUCE, LLC, a
Pennsylvania limited liability company with an address at 1028 Commerce Drive, Pottstown, PA
19464 ("2"d Attic," and collectively with Stetler Service Corp., the "Corporate Guarantors");
DOUG A. STETLER, an adult individual with an address at 2258 Old Route 100, Barto, PA
19504; DENISE L. CHRISTMAN, an adult individual with an address at 41 South Werstler
Avenue, Gilbertsville, PA 19525 (collectively, the "Individual Guarantors," and together with
the Corporate Guarantors and the Borrowers, the "Obligors") and WELLS FARGO BANK,
NATIONAL ASSOCIATION, successor-by-merger to Wachovia Bank, National
Association, a national banking association with a place of business at 123 South Broad Street,
Philadelphia, Pennsylvania (the "Bank").
BACKGROUND
A. As set forth more fully in that certain First Extension of Forbearance Agreements
dated July 13, 2010, by and between the Obligors and the Bank (the "First Extension"), the
Obligors and the Bank have entered into certain financing transactions (as defined in the First
Extension, the "Loans"). Capitalized terms used and not otherwise defined herein shall have the
meanings given in the First Extension, which is incorporated herein by reference.
B. As more fully described in the First Extension, the Obligors are in default of their
obligations under the Loan Documents and the Modification Documents by reason of the
Existing Defaults.
C. The Obligors have not cured the Existing Defaults, nor have they repaid the
Obligations in full.
D. The First Extension expired, by its terms, on October 31, 2010.
E. The Obligors have requested that the Bank temporarily extend its agreement
forbear from the exercise of its rights and remedies with respect to the Existing Defaults in order
to allow the Obligors to (i) immediately repay the Beer Man Line of Credit in full, and (ii) obtain
permanent refinancing of the Classic Truck Loans and the Henry Stetler Loans.
F. The Bank is willing to forbear only as set forth herein.
ME1 10995750x.3
NOW THEREFORE, with the foregoing Background provisions deemed incorporated
herein, and in consideration of the mutual promises set forth below, and intending to be legally
bound hereby, Obligors and Bank agree as follows:
Section 1 Definitions. All capitalized terms which are used, but not otherwise defined,
herein shall have the meanings given in the First Extension. In addition, the following terms
shall have the following meanings:
1.1 "Forbearance Documents" means, collectively, the Modification Documents, the First
Extension and this Second Extension.
1.2 "Obligations" means, collectively, the obligations of each of the Obligors:
1.2.1 To pay the principal and interest on the Loans in accordance with the terms of the
Loan Documents, as the same may have been modified by the Forbearance
Documents, including this Second Extension, and to satisfy all of such Obligor's
other existing and future debts, liabilities and obligations to Bank including, without
limitation, any indebtedness of such Obligor to others which Bank may acquire by
assignment or otherwise, whether matured or unmatured, direct or contingent, joint
or several, including, without limitation, any extensions, modifications, renewals
thereof and substitutions therefor;
1.2.2 To repay to Bank all amounts advanced by Bank hereunder or otherwise to or for
the benefit of any of the Obligors including, without limitation, advances for
principal and/or interest payments to prior secured parties, mortgagees,
beneficiaries or other lienors, or for taxes, levies, insurance, rent, repairs to or
maintenance, storage or other preservation of all or any part of the Collateral; and
1.2.3 To pay all of the Bank's reasonable fees, expenses and costs in connection with
the preparation, negotiation, administration, amendment, modification or
enforcement of the Loan Documents and the Forbearance Documents, including
this Second Extension, and the Bank's rights hereunder and under the documents
required hereunder, or any proceedings (including, without limitation, bankruptcy
or other insolvency proceedings) brought or threatened to enforce payment of any
of the Obligations, including, without limitation, reasonable fees and expenses of
the Bank's legal counsel, the cost of appraisals and environmental assessments of
property owned or occupied by any Obligor, and the extraordinary expenses
incurred by Bank in the administration, modification or enforcement of this Second
Extension and the transactions evidenced hereby.
Section 2 Confirmation of Debt and Ratification of Existing Loan and Securitv
Interests.
2.1 Confirmation of Debt. The Obligors each hereby acknowledge, agree and confirm, without
condition or reservation, that each Obligor is indebted to the Bank pursuant to the Loan
Documents and Guaranties in the following amounts, and that, as of December 17, 2010,
such amounts are due and owing without offset, defense, claim or counterclaim of any kind
or nature:
ME1 109957500 2
Classic Truck Loan Documents:
Principal: $321,304.96
Interest as of 12/22/2010: 3,400.49
Subtotal: $324,705.45
Beer Man Loan Documents:
Principal: $79,962.22
Interest as of 12/22/2010 846.29
Subtotal: $80,808.51
Henry Stetler Term Loan Documents:
Principal: $1,579,946.39
Interest as of 12/22/2010 16,729.31
Subtotal: $1,596,675.70
-Henry Stetler Line of Credit Loan Documents:
Principal: $74,688.84
Interest as of 12/22/2010 790.45
Subtotal: $75,479.29
Attorneys' Fees (as of 12/22/2010): $73,979.63
Past Due Forbearance Fee Pursuant to Section 3.5
of the First Extension $20,621.06
Appraisal Fees $14,650.00
All of the foregoing, together with accrued and continually accruing interest at the rates set forth
in this Second Extension, plus accrued and hereafter accruing costs, fees (including Bank's
reasonable attorneys' fees) and expenses made to preserve the Bank's priority security interest
and liens on the Collateral are due and owing without any claim, counterclaim, right of
recoupment, defense, deduction or offset of any kind or nature.
The Obligors each specifically confirm and acknowledge that they are each indebted to
the Bank, without defense or setoff, for the principal, interest, costs, fees and expenses set forth
in this Section 2. 1, including, without limitation, the Attorneys' Fees, Appraisal Fees and the
Past Due Forbearance Fee identified above, and that all amounts are due and payable in full and
in strict accordance with the terms of the Loan Documents, as modified by the Forbearance
Documents, including this Second Extension.
2.2 Ratification of Loan Documents, Guaranties and Collateral. The Obligors each
hereby ratify, confirm, and acknowledge that the statements contained in the foregoing
Background are true, accurate and correct and that the Loan Documents and Guaranties are valid,
binding and in full force and effect as of the date hereof. The Obligors further ratify and confirm
the validity, priority and effectiveness of the security interest granted to the Bank in the
Collateral as set forth in the Loan Documents and the Guaranties. The Obligors each hereby
acknowledge and agree that they have no defense, set-off, counterclaim or challenge against the
payment of any sums owing under the Loan Documents or the Guaranties, the validity or extent
of the liens and security interests in the Collateral granted to Bank thereby, or the enforcement of
any of the terms or conditions thereof. Neither this Second Extension, nor any of the
agreements, instruments, or documents executed in connection herewith, are in any way intended
to constitute a novation of any of the Loans.
ME1 109957500 3
Section 3 Amendments to Forbearance Documents.
3.1 Forbearance Term. The Bank shall forbear from the exercise of its rights and
remedies with respect to the Existing Defaults until the earlier of (i) February 28, 2011, or (ii) the
occurrence of an Event of Default (other than the Existing Defaults) under the Loan Documents,
the Forbearance Documents or this Second Extension (the "Forbearance Term").
3.2 Repayment of Beer Man Line of Credit. This Second Extension shall not be effective
until the Bank has received the full Partial Payoff Amount, as that term is defined in Section
3.2.2 below, in immediately available funds sufficient to repay the full balance of principal and
interest outstanding under the Beer Man Line of Credit Note.
3.2.1 No Further Advances. Effective as of the date of this Second Extension,
the availability on the Beer Man Line of Credit is hereby reduced to its present
principal balance of $79,962.22, as set forth in Section 2.1 above. Your Beer Man
shall not request and the Bank is not obligated to make further advances on the Beer
Man Line of Credit Note.
3.2.2 Partial Payoff Amount. For the purposes of this Second Extension,
"Partial Payoff Amount" shall mean the full outstanding balance of principal and
interest due and owing under the Beer Man Line of Credit Note as of the date of this
Second Extension. As of December 22, 2010, the Partial Payoff Amount totaled
$80,808.51, as set forth in Section 2.1 above. The Partial Payoff Amount will
increase by $28.88 each day from December 23, 2010, representing continually
accruing interest, until the Partial Payoff Amount is actually received by the Bank.
Payment of the Partial Payoff Amount shall be made in immediately available funds
in accordance with the following wire instructions:
Wells Fargo Bank, successor by merger to Wachovia Bank, N.A.
CMG, formerly Special Assets Management
ABA #031201467
CoSub 3011/ RC #0800693 / GL # 113131
Notify UrsulaNicole McCarrie @215-670-6633
Philadelphia, PA
3.2.3 Effect of Partial Payoff Amount. Obligations under Beer Man Line of
Credit Note. The Obligors each acknowledge that the termination of availability
under the Beer Man Line of Credit and the acceptance of the Partial Payoff Amount
does not operate to extinguish or satisfy the obligations of Beer Man or any other
Obligor under the Beer Man Line of Credit Note and the Forbearance Documents.
The Obligors each acknowledge that other amounts, including, but not limited to,
attorneys' fees, appraisal fees and other costs and fees incurred by the Bank in
connection with the Beer Man Line of Credit and the other Obligations remain due
and payable under the Beer Man Line of Credit Note and this Second Extension.
3.2.4 Continued Liability of Obligors. In addition to the continuing liability as
set forth in Section 3.2.3 above, the Obligors each expressly acknowledge that: (i)
ME] 10995750v.3 4
Classic Truck, Henry Stetler, the Corporate Guarantors and the Individual Guarantors
each remain jointly and severally obligated as the unconditional guarantors of Beer
Man pursuant to the Beer Man Guaranties; that the Bank's acceptance of the Partial
Payoff Amount does not extinguish or satisfy their liability under the Beer Man
Guaranties; and that attorneys' fees, appraisal fees and other costs and fees incurred
by the Bank in connection with the Beer Man Line of Credit, as set forth above,
remain due and payable under the Beer Man Guaranties; and (ii) Beer Man remains
absolutely liable to the Bank as the unconditional guarantor of Classic Truck and
Henry Stetler pursuant to its Classic Truck Guaranty and its Henry Stetler Guaranty.
3.2.5 No Release of Collateral. The Obligors expressly acknowledge that the
Bank's acceptance of the Partial Payoff Amount does not constitute a release of any
portion of the Collateral, and specifically acknowledge, confirm and reaffirm that all
of the Collateral continues to secure the Obligations in accordance with the terms of
the Loan Documents and the Forbearance Documents.
3.3 Interest Rate. Interest is presently accruing on the Loans at the Default Rate, and
shall continue to accrue at the Default Rate until the execution of this Second Extension and
satisfaction of all of the conditions set forth in Section 4 below. Commencing as of the date of
this Second Extension and satisfaction of all conditions precedent to its effectiveness, and
continuing so long as no Event of Default occurs under this Second Extension, interest shall
accrue on the unpaid principal balance of each of the Loans at the Forbearance Rate, as that term
is defined in the First Extension. Immediately upon the occurrence of an Event of Default under
this Second Extension, interest shall accrue on each of the Loans at the Default Rate.
3.4 Repayment Terms. The Obligors shall continue to make monthly payments on the
Classic Truck Loan and the Henry Stetler Loans as set forth in Section 3.3 of the First Extension.
In any event, the entire outstanding balance of the Obligations, including principal, interest, costs
and fees (including but not limited to the Bank's attorneys' fees, the Appraisal Fees and the Past
Due Forbearance Fee set forth in Section 2.1 above, and all other costs and fees incurred by the
Bank in connection with the Loans) shall be due and payable in full at the expiration of the
Forbearance Term.
3.5 Permanent Refmancins?. The Obligors shall aggressively seek permanent refinancing
for the full balance of the Obligations, with the proceeds of such refinancing to be received by
the Bank on or before the expiration of the Forbearance Term, in accordance with the following
terms:
3.5.1 Refinancing Applications. In order to induce the Bank to enter into this
Second Extension, the Obligors hereby represent that they have submitted, or will
submit prior to December 31, 2010, no fewer than two (2) formal applications for the
permanent refinancing of the Obligations (the "Applications"). The Obligors further
represent that the Applications have been, or will be, filed with a reputable lender or
broker, acceptable to the Bank in its sole discretion.
3.5.2 Commitment Terms. On or before January 15, 2011, the Obligors shall
deliver to the Bank a written commitment for refinancing of Obligations in full (the
"Commitment"). The Commitment must be from a reputable lender and shall provide
ME1 10995750v.3 5
for refinancing of the Obligations in full on terms and conditions acceptable to the
Bank in its sole discretion.
3.5.3 Closing of Permanent Refinancing. The refinancing contemplated in the
Commitment must close, and the Bank must receive the proceeds of such refinancing
in an amount sufficient to repay the outstanding balance of the Obligations in full (the
"Refinancing Payment") no later than the expiration of the Forbearance Term. The
Obligations will remain due and owing in full at the expiration of the Forbearance
Term, whether or not the Obligors have timely delivered a Commitment to the Bank
and whether or not the Bank timely receives the Refinancing Payment.
3.5.4 Reporting. Commencing on Friday, December 24, 2010 and continuing
on the same day of each consecutive week thereafter, the Obligors must provide the
Bank with a report on the status of the Obligors' efforts to secure refinancing of the
Obligations, including without limitation copies of all Applications, any
documentation and inquiries, formal or informal, submitted to any lender or broker,
any correspondence or letters of interest, and all other information pertaining to the
status of the refinancing of the Obligations which the Bank may deem necessary in its
sole discretion.
3.5.5 Monthly Payents. The Obligors shall continue to make the monthly
payments required pursuant to section 3.4 above, whether or not a Commitment has
been delivered to the Bank, and whether or not the Bank has approved or accepted
such Commitment, until such time as the Bank confirms to the Obligors in writing
that the Bank has received the Refinancing Payment and that the Obligations have
been satisfied.
3.6 Forbearance Fee. Contemporaneously with the execution of this Second Extension,
the Obligors shall pay to the Bank a fully-earned, non-refundable forbearance fee in the amount
of Twenty Five Thousand ($25,000) Dollars (the "Forbearance Fee"); provided, however, that in
the event the Obligors timely deliver the Commitment and the Refinancing Payment, in
accordance with the terms of Section 3.5 above, and so long as no Event of Default has occurred,
the Bank shall, on the date the Refinancing Payment is received, apply Twenty Thousand
($20,000) Dollars of the Forbearance Fee to reduce the balance of the Obligations then
outstanding. In the event that the Obligors fail to timely deliver the Commitment and the
Refinancing Payment, the Bank shall retain the full amount of the Forbearance Fee and shall not
be obligated to apply any portion thereof to reduce the outstanding Obligations.
3.7 ALL AMOUNTS DUE ON FEBRUARY 28, 2011 UNLESS OTHERWISE
ACCELERATED. EACH OBLIGOR ACKNOWLEDGES AND AGREES THAT (i) THE
FULL AMOUNT OF PRINCIPAL AND INTEREST OUTSTANDING UNDER THE BEER
MAN LINE OF CREDIT NOTE IS DUE AND PAYABLE IN FULL
CONTEMPORANEOUSLY WITH THE EXECUTION OF THIS SECOND EXTENSION,
AND (ii) THE FULL REMAINING BALANCE OF ALL OF THE OBLIGATIONS UNDER
THE LOAN DOCUMENTS AND FORBEARANCE DOCUMENTS ARE DUE AND
PAYABLE IN FULL ON OR BEFORE FEBRUARY 28, 2011, UNLESS SOONER
ACCELERATED FOLLOWING THE OCCURRENCE OF AN EVENT OF DEFAULT.
MEl 10995750v.3 6
Section 4 Conditions Precedent. The effectiveness of this Second Extension, and
the Bank's agreement to forbear as set forth herein, are conditioned upon the satisfaction of the
following conditions precedent:
4.1 Execution and delivery of this Second Extension and all instruments, documents, and
agreements required to be executed in connection herewith;
4.2 Execution and delivery of Allonges to the Classic Truck Line of Credit Note, the
Henry Stetler Term Note, and the Henry Stetler Line of Credit Note, setting forth the Obligors'
obligations thereunder in accordance with the terms of this Second Extension;
4.3 The Obligors shall have delivered the Partial Payoff Amount to the Bank in
immediately available funds and as set forth in Section 3.2 above; and
4.4 Payment of the Forbearance Fee in immediately available funds.
Section 5 Default; Remedies.
5.1 Events of Default. In addition to the Defaults identified in the Loan Documents and the
Forbearance Documents, the following shall constitute an Event of Default under this
Second Extension, with no notice by the Bank or opportunity to cure except as specifically
set forth herein:
5. 1.1 Any Obligor shall fail to pay, when due, any installment of principal,
interest, or fee or other charge payable hereunder or under the Loan Documents
and the Forbearance Documents including without limitation (i) the failure to
deliver the Partial Payoff Amount in accordance with the terms of Section 3.2
hereof, or (ii) the failure to pay, at the expiration of the Forbearance Term, the
Obligations to the Bank as and when due;
5.1.2 Any Obligor shall fail to observe or perform any other obligation or
covenant to be observed or performed by such Obligor hereunder or under any of
the Loan Documents or Forbearance Documents, or under any other existing or
future agreement between an Obligor and the Bank other than the Existing
Defaults; provided, however, that the Obligors shall have a seven (7) day grace
period in the event that they fail to deliver the Commitment on or before January
15, 2010, and such failure to timely deliver the Commitment shall not constitute
an Event of Default until the expiration of the grace period on January 24, 2010;
5.1.3 If any financial statement, representation, warranty, statement or
certificate made or furnished to the Bank in connection with this Second
Extension, or as inducement to the Bank to enter into this Second Extension, or in
any separate statement or document to be delivered hereunder to the Bank, shall
be materially false, incorrect, or incomplete, when made;
5.1.4 The validity or enforceability of this Second Extension, the Guaranties, the
Loan Documents or the Forbearance Documents shall be contested by any
ME 1 10995750x.3 7
Obligor or any other Person, or any Obligor shall deny that it has any or further
liability or obligation hereunder or thereunder; or
5.1.5 The occurrence of an uncured event of default or a default under any
agreement by and between any Obligor and any third party.
5.2 Remedies. Upon the occurrence of an Event of Default, the Bank shall have the following
rights (which are not intended to diminish, alter or limit Bank's rights described in the Loan
Documents, the Forbearance Documents, the Guaranties, this Second Extension, or any
related instruments, agreements and documents):
5.2.1 To declare the Obligors in default under this Second Extension, the
Forbearance Documents, the Loan Documents, the Guaranties, and all other
agreements with Bank, and upon written notice to Obligors, the Bank may declare
all existing and future liabilities, indebtedness and Obligations accelerated and
immediately due and payable, including, without limitation, interest, principal,
expenses, advances to protect Bank's position and reasonable counsel fees to
enforce this Second Extension, the Forbearance Documents, the Loan Documents,
the Guaranties, and all related instruments, agreements and documents, Bank's
rights hereunder and thereunder, all without demand, notice, presentment or
protest, or further action of any kind, except as specified herein; and
5.2.2 Interest shall accrue on the Obligations at the Default Rate set forth in the
First Extension.
The foregoing rights and remedies are in addition to, and not in lieu of, the rights and remedies
of the Bank as set forth in the Forbearance Documents, the Guaranties and Loan Documents, and
as are available under any applicable Law.
Section 6 Successors and Assigns. This Second Extension shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective successors and assigns,
but shall not be assignable by any Obligor without the prior written consent of the Bank.
Section 7 Entire Agreement; Amendment; Waiver. This Second Extension
constitutes the entire agreement between the Obligors and the Bank with respect to the subject
matter set forth in this Second Extension, and supersedes all other prior agreements and
understandings, both written and oral, between the Obligors and the Bank with respect to such
matters. This Second Extension may not be amended except by an instrument in writing signed
by all parties to this Second Extension, nor shall there be a waiver any of the terms and
conditions of this Second Extension except by writing duly signed by all of the Obligors and the
Bank.
Section 8 Confession of Judgment. THE FOLLOWING PARAGRAPHS SET
FORTH A POWER OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT
AGAINST EACH OF THE OBLIGORS. IN GRANTING THIS WARRANT OF ATTORNEY
TO CONFESS JUDGMENT AGAINST OBLIGORS, EACH OBLIGOR, FOLLOWING
CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL FOR
SUCH OBLIGOR AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF,
ME1 10995750v.3 8
HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND
UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS SUCH OBLIGOR HAS OR MAY
HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE
RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA,
COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE INCLUDING, WITHOUT
LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT OF
SUCH OBLIGOR'S BANK ACCOUNT AND OTHER ASSETS. EACH OBLIGOR
ACKNOWLEDGES AND UNDERSTANDS THAT BY ENTERING INTO THIS
FORBEARANCE AGREEMENT CONTAINING A CONFESSION OF JUDGMENT
CLAUSE THAT SUCH OBLIGOR IS VOLUNTARILY, INTELLIGENTLY AND
KNOWINGLY GIVING UP ANY AND ALL RIGHTS, INCLUDING
CONSTITUTIONAL RIGHTS, THAT SUCH OBLIGOR HAS OR MAY HAVE TO
NOTICE AND A HEARING BEFORE JUDGMENT CAN BE ENTERED AGAINST
OBLIGOR AND BEFORE OBLIGOR'S ASSETS, INCLUDING, WITHOUT
LIMITATION, BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED
UPON AND/OR ATTACHED. EACH OBLIGOR UNDERSTANDS THAT ANY SUCH
GARNISHMENT, LEVY, EXECUTION AND/OR ATTACHMENT SHALL RENDER
THE PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED
IMMEDIATELY UNAVAILABLE TO SUCH OBLIGOR IT IS SPECIFICALLY
ACKNOWLEDGED BY EACH OBLIGOR THAT THE BANK HAS RELIED ON THIS
WARRANT OF ATTORNEY AND THE RIGHTS WAIVED BY OBLIGOR IN ENTERING
INTO THIS FORBEARANCE AGREEMENT AND AS AN INDUCEMENT TO GRANT
FINANCIAL ACCOMMODATIONS TO THE OBLIGORS.
If an Event of Default occurs under this Second Extension, each Obligor hereby
authorizes and empowers any attorney of any court of record or the prothonotary or clerk of any
county in the Commonwealth of Pennsylvania, or in any jurisdiction where permitted by law or
the clerk of any United States District Court, to appear for such Obligor in any and all actions
which may be brought hereunder and enter and confess judgment against such Obligor or any of
them in favor of the Bank for such sums as are due or may become due hereunder or under any
other Loan Documents, together with costs of suit and actual collection costs including, without
limitation, reasonable attorneys' fees equal to 5% of the Obligations then due and owing but in
no event less than $5,000.00, with or without declaration, without prior notice, without stay of
execution and with release of all procedural errors and the right to issue executions forthwith.
No confessed judgment shall be entered with respect to any "consumer credit transaction" as
defined in Rule 2950 of the Pennsylvania Rules of Civil Procedure, but this exclusion shall not
affect any transaction or loan not so excluded, and the Obligors expressly acknowledge that the
Loans and Loan Documents described herein are not "consumer credit transactions." To the
extent permitted by law, each Obligor waives the right of inquisition on any real estate levied on,
voluntarily condemns the same, authorizes the prothonotary or clerk to enter upon the writ of
execution this voluntary condemnation and agrees that such real estate may be sold on a writ of
execution; and also waive any relief from any appraisement, stay or exemption law of any state
now in force or hereafter enacted. Each Obligor further waives the right to any notice and
hearing prior to the execution, levy, attachment or other type of enforcement of any
judgment obtained hereunder, including, without limitation, the right to be notified and
heard prior to the garnishment, levy, execution upon and attachment of such Obligor's
bank accounts and other property. If a copy of this Second Extension verified by affidavit of
any officer of the Bank shall have been filed in such action, it shall not be necessary to file the
ME1 109957500 9
original thereof as a warrant of attorney, any practice or usage to the contrary notwithstanding.
The authority herein granted to confess judgment shall not be exhausted by any single exercise
thereof, but shall continue and may be exercised from time to time as often as the Bank shall find
it necessary and desirable and at all times until full payment of all amounts due hereunder and
under any other Loan Documents or Forbearance Documents. The Bank may confess one or
more judgments in the same or different jurisdictions for all or any part of the obligations arising
hereunder or under any other Loan Documents to which any Obligor is a party, without regard to
whether judgment has theretofore been confessed on more than one occasion for the same
Obligations. In the event that any judgment confessed against one or more Obligors is stricken
or opened upon application by or on behalf of such Obligor for any reason, the Bank is hereby
authorized and empowered to again appear for and confess judgment against such Obligor for
any part or all of the Obligations owing under this Second Extension and/or for any other
liabilities owed under the Loan Documents or Forbearance Documents, as herein provided.
Section 9 Release. Each Obligor, for itself and its successors, heirs, executors,
administrators, and assigns, hereby releases and forever discharges Bank and its officers,
directors, agents, and employees from all claims and causes of actions of any type or nature
whatsoever, known or unknown, that may now exist or may exist in the future as a result of any,
event or events occurring before the date of this Second Extension having anything to do with
the Forbearance Documents, the Loan Documents, or the Loans reflected thereby.
Section 10 Headings. The section headings contained in this Second Extension are
inserted for convenience only and shall not affect in any way the meaning or interpretation of
this Second Extension.
Section 11 Counterparts. This Second Extension may be executed in any number of
counterparts, and all such counterparts shall be deemed to be one in the same instrument.
Section 12 Governing Law. This Second Extension shall be governed by and
construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to conflicts of law principles thereof.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
WITH SIGNATURE PAGE TO FOLLOW
ME1 10995750v.3 10
IN WITNESS WHEREOF, and intending to be legally bound, the Obligors and Bank
have entered into this Second Extension of Forbearance Agreements as of the date written above.
Y V u ER STE ER SERVICE CORP.
By. By.
H . Stetler, President Doug A. dent
CLASSIC TRUCK ASSOCIATES, INC.
?U?yUt?t, ? ??tin?iW\RNL
BANK:
2`4 ATTIC SO AND SPRUCE, LLC
By
Doug A. St er, PIM&A
DOUG A. STETLER
WELLS FARGO BANK, NATIONAL ASSOCIATION,
successor-by-merger to Wachovia Bank, N.A.
By:
Charles B. Cook, Vice President
ME] 109957sw3 11
DENISE L. CHRISTMAN
CORPORATE ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA .
COUNTY OF ss.
On this P- day of D- . 2010, before me, a Notary Public,
personally appeared DOUG STETLER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the President of CLASSIC TRUCK ASSOCIATES, INC. (the "Corporation"), and that
s/he executed the foregoing instrument on behalf of the Corporation, being authorized to do
so, for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL).
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ss.
On this day of . 2010, before me, a Notary Public,
personally appeared DOUG S known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the President of ST ETL.ER SERVICE CORPORATION (the "Corporation'), and that s/he
executed the foregoing instrument on behalf of the Corporation, being authorized to do so,
for the purposes set forth in it.
IN WITNESS WHEREOF, I have hereput my hand and official seal.
(SEAL]. .
ANMA &
Bo Wkr, +
MEl 10995750v3
I COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF
?V^'?'_ ,
On this -7 day of 2010, before me, a Notary Public,
personally appeared HENRY STETLER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the President of YOUR BEER MAN, INC. (the "Company'D, and that he executed the
foregoing instrument on behalf of the Company, being authorized to do so, for the purposes
set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
QMORATEACKNOWLEMENT
COMMONWEALTH OF PENNSYLVANIA
SS.
COUNTY OF
On this day of 2010, before me, a Notary Public,
personally appeared DOUG STET I ER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged that he
is the President of 2°s ATnc SOUTH AND SPRUCE, LLC (the "Company"), and that he
executed the foregoing instrument on behalf of the Company, being authorized to do so, for
the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and-official seal.
[SEAL] Notary Public
ANWA $. ? 6EJU. pubic
ME1 1099575ov3
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OFD'
On this ?-l day of ? ?? 2010, before me, a Notary Public, personally
appeared HENRY L. STETI.Ai known (or satisfactorily proven) to me to be the person
whose name is subscribed to the foregoing instrument, and who acknowledged that he
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
ALL 4?2??
AMAMA
No SEAL
EAL
[S] ANGELA W% PLft
?14
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
SS.
COUNTY OF. Yl?
On this g'-? day of-g. 2010, before me, a Notary Public, personally
appeared DOUG A. silm ER, known (or satisfactorily proven) to me to be the person
whose name is subscribed to the foregoing instrument; and who acimowledged that he
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
I
is No Publ(SEAL] pubk
? ., Berke
.? a t4
ME1 10995750v3
COMMONWEALTH. Of PENNSYLVANIA
ss.
COUNTY OF ??Jr
On this day of TIP/ 2010, before me, a Notary Public, personally
appeared DENISE L. CHRISTMAN, known (or satisfactorily proven) to me to be the person
whose name is subscribed to the foregoing instrument, and who acknowledged that she
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
AA W
Public .,
[SEAL]
WM A S. ZMK nium Pubk
Cci"
M?1 eorory 8 ;A;
Wai
Ci011pl?pn EfmilbA 1
ME] 109957500
i?
Commonwealth of Pennsylvania
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
First Allonge as of the day of December, 2010.
CLASSIC TRUCK ASSOCIATES, INC.
NE191M47Y.1
ME1 11011526v.1
By:
Name: 0o Mt+
Title: Prtill, t
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By
Charles B. Cook
Vice President
3
CORPORATE ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA ,
&? ss.
COUNTY OF ?' ,
On this da of
day 10, before me, a Notary Public,
personally aPP? known (or satisfactorily proven) to me to be
the pezsQp whose ame 's scriW to the foregoing instrument, and who acknowledged he
is the 7 of CLASSIC TRUCK ASSOCIATES, INC. (the
"Corporation"), and that he executed the foregoing instrument on behalf of the Corporation,
being authorized to do so, for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
Public
DTARIAL SEAL.
S. ZERN. NoW Pubic
N El 919724?v.1
N El 11011326v.1
r
9. Governing Law. This First Allonge shall be governed by and construed in
accordance with the domestic internal laws (but not the law of conflict of laws) of the
A Commonwealth of Pennsylvania.
IN WTINESS WHEREOF, the parties hereto have executed and delivered this
First Allonge as of the day of December, 2010.
ATTEST: HEN
J#Y L. STE t"D
By.nry ?- • Sf?l?l cr
Title: kJ h e.(
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By
Charles B. Cook
Vice President
3
ME1919n47v.1
ME1 11011449v.1
i
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF At' ss.
'Ale
On this :1-7 day of
2010, before me, 'a Notary Public,
' personally appeared HENRY L. STETLER, known (or satisfactorily proven) to me to be the
i person whose name is subscribed to the foregoing instrument, and who acknowledged he
executed the foregoing instrument for the purposes set.forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL] Notary Public
vAMA
?? ? AREAL 1SdEoArLy Pw*
OcK
?3ft01,M 0010ry Bab 701
MY Cc+r,?,r;ssion Pxp6ee AN- 8. 4
ME 9197247x.1
ME] 11011449v.1
in accordance with the domestic internal laws (but not the law of conflict of laws) of the
.Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Second Allonge as of the day of December, 2010.
ATTEST:
By: h yv L ei-?
T
Title: d w n G?
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By
Charles B. Cook
Vice President
3
N E19197247x.1
WI 11011116x.1
M IVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
ff ss.
COUNTY OF
On this y? day of 2010, before me, a Notary Public,
personally appeared HENRY I» TETLEF, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged he
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
(SEAL] -31
Notary Public
COMMONWEALTH OF POWAXAMIA
NOTAM
ANGELA S. ZERK SEAL
N*
N
14
ME19IM47v.1
NMI 11011416x.1
December 23, 2010
Page 4 .
ACKNOWLEDGED AND AGREED:
YOUR ER C. STETLER SERVICE CORP.
gy;
By,
H L S er, President Dou A. S er; R s ent
CLASSIC TRUCK ASSOCIATES, INC.
By:
Doug A Steller, Pres ant
HE L
DENISE L. CHRISTMAN
D U ER
2nd ATTIC SOUTH AND SPRUCE,
BY.
Doug A. Steller, res t
WITNESS
By. D?.VV1,5(, agv'l5 n
True:-rrjA5ura
Z4??
By:
Title: e A89 -
WITNESS .
4.vMAJl_ UwAtwom
Trdel riq, ,r
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: Charles B. Cook
Vice President
ME1 109M7v.1
?x? ?
FIRST ALLONGE TO PROMISSORY NOTE
Borrower: Henry L. Stetler
Bank: Wells Fargo Bank, National Association,
successor-by-merger to Wachovia Bank, National
Association
Date of Note: August 7, 2007
Original Principal Amount: $1,700,000
BACKGROUND
A. Borrower heretofore executed and delivered to Bank that certain
Promissory Note dated August 7, 2007 in the original principal amount of One Million Seven
Hundred Thousand ($1,700,000) Dollars (as the same may have been modified, renewed and
extended, the "Note").
B. Borrower and Bank desire to modify and amend the Note pursuant.to and
in accordance with this First Allonge to Promissory Note (the "First Allonae").
C. Borrower and Bank have executed a Second Extension of Forbearance
Agreements of even date herewith (the "Second Extension").
NOW, THEREFORE, the following background terms incorporated herein, and
for good and valuable consideration, the receipt and legal sufficiency of which is hereby
acknowledged and intending to be legally bound, the parties hereto covenant and agree as
follows:
1. Defined Terms. Any capitalized terms used in this First Allonge or the
Background provisions hereof which are not otherwise defined, but which are defined in the
Note or the Second Extension, shall have the meanings given to those terms in the Note or the
Second Extension.
2. Modification of Repayment Terms. The provision of the Note entitled
"Repayment Terms" is hereby modified and amended in its entirety to read as follows:
"REPAYMENT TERMS. This Note shall be due
ME 19197247v. I
ME1 11011449v.1
and payable in monthly payments of principal and
interest in the amount of $14,074.15 each,
commencing on December 7, 2010, and continuing
on the 7th day of each consecutive calendar month
thereafter. In any event, all principal and accrued
interest shall be due and payable on February 28,
2011."
Modification of Interest Rate. The provision of the Note entitled "Interest
Rate" is hereby modified and amended in its entirety to read as follows:
"INTEREST RATE. Commencing as of the date
of the Second Extension, interest shall accrue on the
unpaid principal balance of the Note at rate of Eight
(8%) Percent per annum (the "Forbearance Rate")."
4. Modification of Default Rate. The provision of the Note entitled "Default
Rate" is hereby amended to delete the phase "Interest Rate plus 3%" and replace it with
"Forbearance Rate plus 5%."
5. Representations and Warranties. The Borrower hereby restates and
reaffirms all representations and warranties set forth in the Note and all related agreements,
documents, and instruments heretofore executed and delivered by the Borrower to and in favor
of Bank and further represents and warrants to Bank that no defaults have occurred thereunder
which are continuing as of the date hereof.
6. Continuing Effect. Except as expressly set forth herein, all of the terms,
covenants, and conditions of the Note shall remain in full force and effect. This First Allonge is
given as a renewal and extension of the Borrower's obligations under the Note and is not given in
substitution therefore or extinguishment thereof and is not intended to be a novation.
7. Attachment to Note. This First Allonge shall be and remain attached to
the Note and shall be an integral part thereof.
Costs and Expenses. The Borrower shall reimburse Bank for its
reasonable out-of-pocket expenses, including counsel fees, incurred by Bank in connection with
the development, preparation, and negotiation of this First Allonge and all documents executed
in connection herewith.
2
ME 1 9197247v.1
ME1 11011449v.1
9. Governing Law. This First Allonge shall be governed by and construed in
accordance with the domestic internal laws (but not the law of conflict of laws) of the
Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
First Allonge as of the day of December, 2010.
ATTEST:
By:??r L ?f I?
Title: C,' ?j 11) e- r
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By l -k-
harles B. Cook
Vice President
MEl 9197247x.1
MEl 11011449v.1
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF
t? :
On this day of LV? 010, before me, a Notary Public,
personally appeared HENRY L. STETLER, known (or satisfactorily proven) to me to be the
person whose name is subscribed to the foregoing instrument, and who acknowledged he
executed the foregoing instrument for the purposes set forth in it.
IN WITNESS WHEREOF, I have here put my hand and official seal.
[SEAL]
r?
Notary Public
",ON TM C1F I'ENNlYLVANiA
NOTARIAL SEAL
?- -;mac S. ZERN
B , Nary Public
30m., Bents County
My Cc TM _ , w;(&es June 8, 2014
MEI 9197247v.1
ME 1 11011449v.1
MCCARTER
&ENGLISH
ATTORNEYS AT LAW
March 4, 2011
VIA EMAIL AND FIRST CLASS MAIL
Frank M. Correll, Esq.
Klehr Harrison Harvey Branzburg LLP
1835 Market Street, Suite 1400
Philadelphia, PA 19103
Re: Wells Fargo Bank, N.A., successor-by-merger to Wachovia Bank, N.A. (the
"
Rosetta B. Packer
P Bank") and Your Beer Man, Inc. ("Your Beer Man"), Classic Truck Associates, Inc.
("Classic Truck")
and Henr
L
St
tl
"H
'
artner ,
.
y
e
er (
enry Stetler
), et al. (collectively, the
"
T. 215.979.3840
F. 215.988.4320 Obligors")
rpadw@rccarbermm
Dear Frank:
As you know, this firm represents the Bank in connection with those certain loans made
M
LLP
r& to and for the benefit of the Obligors, as set forth more fully in that certain Second
ellon B
ack Cant ,
B Extension and Modification of Forbearance Agreements dated as of December 30
1735 Market
735
eal-Sub
700 ,
2010 (the "Second Extension"). Capitalized terms used and not otherwise defined
herein shall have the meanings given in the Second Extension
lladelphla Pla, PA
Ph
19103 .
T. 215.979.3800
F
215
979
3899 By e-mail dated February 14, 2011, you were reminded that, pursuant to the terms of
.
.
.
www.mcca`ter.co" the Second Extension, that the Forbearance Term would expire, and the Obligations
would become due and payable in full, on February 28, 2011. No such repayment has
been made.
Your clients are in default of their obligations under the Loan Documents, the
BOSTON Modification Documents and the Second Extension for failure to make the monthly
payments due thereunder commencing in January 2011 and continuing thereafter,
failure to deliver the Commitment for refinancing of the Obligations on or before January
HARTFORD 15, 2011, and failure to repay the Obligations in full at the expiration of the Forbearance
Term on February 28, 2011 (collectively, the "Existing Defaults').
NEW YORK As a result of the Existing Defaults, the Bank has determined to exercise its rights and
remedies under the Loan Documents, the Modification Documents and the Second
NEWARK Extension. The following amounts are immediately due and payable to the Bank:
PHILADELPHIA
STAMFORD
WILMINGTON
ME1 11297123Y.1
Frank Correll, Esq.
March 4, 2011
Page 2
Classic Truck Loan Documents:
Principal $321,304.96
Interest as of 2/28/2011 8.612.75
Total $329,917.71
Henry Stetler Term Loan Documents:
Principal $1,579,946.39
Interest as of 2128/2011 42,359.53
Late Fees 1.418.37
Total $1,623,724.29
Henry Stetler Line of Credit Loan Documents:
Principal $74,688.84
Interest as of 2/28/2011 2,002.09
Late Fees 74.88
Total $76,765.81
Past Due Forbearance Fee: $20,621.06
Appraisal Fees: $14,650.00
Attorneys' Fees as of 2/28/2011: $77,849.97
Interest continues to accrue on the Obligations from the date of this letter at the
respective Default Rates, as set forth in the Loan Documents, Modification Documents
and the First Extension. In accordance with the terms of the Loan Documents, the
Modification Documents and the Second Extension, the Obligors are also liable for the
Bank's reasonable expenses incurred to enforce and collect the Obligations, including
without limitation the Bank's continuing attorneys fees and costs.
If payment of all amounts is not made or satisfactory arrangements for repayment have
not been made on or before five (5) days from the date of this letter, we have been
instructed by our client to commence appropriate actions to collect the amounts due
without further notice.
ME1 11297123v.1
Frank Correll, Esq.
March 4, 2011
Page 3
Please call me to discuss.
Very truly yours,
Z'Q4?
Rosetta B. Packer
cc: Charles B. Cook, Vice President (via e-mail only)
ME1 11297123v.1
MCCARTER cot ENGLISH, LLP
Rosetta B. Packer, Esq.
Christine L. Barba, Esq.
Identification Nos.: 28357, 206938
Mellon Bank Center
1735 Market Street, Suite 700
Philadelphia, PA 19103
Phone: (215) 979-3800
Fax: (215) 979-3899
_ _ _ _ _ _ _ _ -----------------------
WELLS FARGO BANK, N.A., successor-
by-merger to Wachovia Bank, N.A.,
Plaintiff,
-vs-
HENRY L. STETLER,
Defendant.
Attorneys for Plaintiff,
Wells Fargo Bank, National Association,
successor by merger to Wachovia Bank,
National Association
hl
L '.
COURT OF COMMON PLE2M
CUMBERLAND COUNTY r- rv
<O I
=
CIVIL ACTION
o
3?C o G
NO. 11-5839 =
ACCEPTANCE OF SERVICE
On behalf of defendant Henry L. Stetler, I accept service of the Complaint in Mortgage
Foreclosure served by plaintiff Wells Fargo Bank, N.A., successor-by-merger to Wachovia
Bank, N.A. in the above-captioned matter, and certify that I am authorized to do so.
Dated: July 16, 2011
By: Francis M. Correll, Jr., Esquire
Klehr Harrison Harvey Branzburg LLP
1835 Market Street, Suite 1400
Philadelphia, PA 19103
T (215) 569-4094
F (215) 568-6603
Counsel for Henry L. Stetler
ME] 12033541v.1
V
c
KLEHR HARRISON HARVEY BRANZBURG LLP
By: Francis M. Correll, Jr., Esquire
I.D. No. 51076
1835 Market Street, Suite 1400
Philadelphia, PA 19103
(215) 569-2700
WELLS FARGO BANK, N.A., successor-by-
merger to Wachovia Bank, N.A.,
Plaintiff,
V.
HENRY L. STETLER,
Defendant.
cCT t'p ,
_'UNBERLANp COUNTY
PENNSYLVANIA
Attorneys for Defendant
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY
CIVIL ACTION
No. 11-5839
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter this firm's appearance on behalf of Defendant, Henry L. Stetler.
KLEHR HARRISON HARVEY
BRANZBURG LLP
Date: August 29, 2011 By: _ h "-z
Franci orrell, Jr., Esquire
Counsel for Defendant
PHIL 11674818-1
C
KLEHR HARRISON HARVEY BRANZBURG LLP
By: Francis M. Correll, Jr., Esquire
I.D. No. 51076
1835 Market Street, Suite 1400
Philadelphia, PA 19103
(215) 569-2700
WELLS FARGO BANK, N.A., successor-by-
merger to Wachovia Bank, N.A.,
Plaintiff,
V.
HENRY L. STETLER,
Defendant.
Attorneys for Defendant
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY
CIVIL ACTION
No. 11-5839
CERTIFICATE OF SERVICE
I, Francis M. Correll, Jr., Esquire hereby certify that on this 29`h day of August,
2011, I served the foregoing Entry of Appearance upon the following counsel of record
via first class U.S. mail, postage prepaid:
Rosetta B. Packer, Esquire
Christine L. Barba, Esquire
McCarter and English, LLP
Mellon Bank Center
1735 Market Street, Suite 700
Philadelphia, PA 19103
Francis M. Correll, Jr., Esquire
PHIL I 1674818-1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
WELLS FARGO BANK, N.A., successor-by-
merger to Wachovia Bank, N.A.,
Plaintiff,
V.
HENRY L. STETLER,
Defendant
CIVIL ACTION
,
No. 11-5839 rnco - -
cn+" rr,
1 S k
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C*
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? 3
AGREEMENT PURSUANT TO RULE 237.2 TO
EXTEND TIME TO PLEAD FOLLOWING TEN-DAY NOTICE
It is agreed that the defendant, Henry L. Stetler, is granted an extension of time, through
and including September 13, 2011, to respond to the plaintiff's complaint. After the above date,
a judgment of non pros or by default, as may be appropriate, may be entered by praecipe without
further notice.
KLEHR HARRISON HARVEY MCCARTER & ENGLISH LLP
BRANZBURG LLP
By: By: `
Francis M. Correll, Jr., Esquire t1 etta B. Packer, Esquire
Attorney I.D. No.: 51076 itine L. Barba, Esquire
1835 Market Street, 14t1i Floor Philip D. Amoa, Esquire
Philadelphia, PA 19103 Attorney I.D. Nos.: 28357/206983/310593
(215) 569-2700 Mellon Bank Center
Attorney for the Defendant 1835 Market Street
Philadelphia, PA 19103
(215) 979-3800
Attorneys for the Plaintiff
PHIL I 1680762-1