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HomeMy WebLinkAbout13-0276ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT Defendant `"' -~ ~~ a ~ r CONFESSION OF JUDGMENT ~ ~ ~ Z~ 3 ~~ Pursuant to the authority contained in the warrant of attorney, the original aGop~Df ° `r' --i rv ~' -~ ~ r., which is attached to the complaint filed in this action, I appeaz for the plaintiff and confess "'~ judgment in favor of the plaintiff and against defendant as follows: Principal $83,922.13 Interest (to 01/09/13) per diem of $11.65 $ 303.05 Other Chazges $ 5,589.37 Attorney fees (fixed for purposes of this complaint at 5% of principal debt) 4 196.11 $94,010.66 (i(/. David A. Baric, Esquire Attorney for Plaintiff %a ck~ /96~ CJ ~ a~s~t70 ~a~ tce ~~.. %~ ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA _ v. NO. ! .~ ,.~ ~ ~ ~ 3 _;,~: ~ w --~ AES HEARTHPLACE, INC., CIVIL ACTION-LAW =~ z ~ Defendant ~ z ~ ~~ ~~ ~ ~; ~ w ~ `-' ~ ~, -~ N NOTICE TO DEFEND ~ ~' .~:: _, ~~ You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice aze served, by entering a written appeazance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Baz Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT Defendant COMPLAINT IN CONFESSION OF JUDGMENT NOW, comes Plaintiff, Orrstown Bank, by and through its attorneys, BARIC SCHERER LLC, and files the within complaint and, in support thereof, sets forth the following: 1. The Plaintiff is Orrstown Bank, a Pennsylvania corporation with a place of business located at 77 East King Street, Shippensburg, Cumberland County, Pennsylvania 17257. 2. On or about July 14, 2009, Defendant, AES Hearthplace, Inc. made, executed and delivered the same day to Orrstown Bank in the original principal sum of One Hundred Thousand ($100,000.00) dollars a written Promissory Note ("Promissory Note") 3. A true and correct copy of Promissory Note is attached hereto as Exhibit "A" and is incorporated by reference. 4. Defendant, AES Hearthplace, Inc. has defaulted under the terms and conditions of Promissory Note. In November, 2012, counsel for Plaintiff called upon Defendant to pay the loan and the Defendant has failed to do so. 5. The Promissory Note provides for the recovery of attorney fees and costs incurred by Orrstown Bank to collect the debts due and owing. 6. Judgment is not being entered by confession against natural persons in connection with a consumer transaction. 7. Judgment has not been entered on the Promissory Note in any other jurisdiction. 8. The following amounts aze presently due under the respective Promissory Notes: Principal $83,922.13 Interest (to 01 /09/ 13 ) per diem of $11.65 $ 303.05 Other Charges $ 5,589.37 Attorney fees (fixed for purposes of this complaint at 5% of principal debt) 4 196.11 $94,010.66 COUNTI BREACH OF CONTRACT ORRSTOWN BANK v. AES HEARTHPLACE INC. 9. Plaintiff incorporates by reference pazagraphs one (1) through eight (8) as though set forth at length. 10. AES Hearthplace Inc. has breached the Promissory Note by failing and refusing to pay the amounts due thereunder. 11. All conditions precedent to recovery have been fulfilled. 12. As a direct and proximate result of the breaches of the Defendants, Orrstown Bank has incurred damages of $94,010.66 and these damages will continue to accrue. WHEREFORE, Plaintiff requests judgment in its favor and against Defendants for the sum of $94,010.66 plus additional interest, costs, expenses and attorney fees all in an amount in excess of the limits requiring compulsory azbitration. Respectfully submitted, B S'e L David A. Baric, Esquire ID # 44853 19 West South Street Cazlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff VERIFICATION The statements in the foregoing Complaint are based upon information that has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information that I have given to my counsel, they are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsifications to authoriti~ DATE ~11U I V ~ ~~ Assistant Vice President Senior Consumer Collector Orrstown Bank Lmaa x. Mowen PROMISSORY NOTE Aa<I1a~i ~ci~a~ $ Nf:Bturi~y Ldan No ~ Bali r soli A~dt;i~f .~' tt8k8 . ~'.Q~ . 47-4~4-S~QE~9 Z64~~QOO~t31 / 30o a~'~~ References in the boxes above are for lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing """" has been omitted due to text length limitations. Borrower: AES Hearthplace Inc. 1743 Pine Rd Newville, PA 17241 Lender: ORRSTOWN BANK KING STREET OFFICE 77 EAST KING STREET SHIPPENSBURG, PA 17257 Principal Amount: S 100,000.00 Date of Note: July 14, 2009 PROMISE TO PAY. AES Hearthplace Inc. ("Borrower") promises to pay to ORRSTOWN BANK ("Lander"1, or order, in lawful money of the Unksd States of America, on demand, the principal amount of One Hundred Thousand & 00/100 DoNars [5100,000.00) or so much as may be outstanding, together with interest on the unpaid outstanding principal balance of each advance. Interest shall be calculated from the date of each advance until repayment of each advance. PAYMENT. Borcower will pay this loan in fuU imm®diately upon Lender's demand. Borrower will pay regular monthly paymartts of all accrued unpaid interest due as of each paymsrtt data, beginning. August 14, 2009, with aN subsequent ir-tsrest payments to bs due on the same day of each month after that. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest; then to principal; then to any late charges; and then to any unpaid collection costs. Borrower will pay Lender at Lender's address shown above or at such other place as Lander may designate in writing. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based an changes in an independent index which is the Wall Street Prime (the "Index"). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notifying Borrower. lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each day. Borrower understands that Lender may make loans based on other rates as wall. The Index curcerrtly is 3.250% per annum. Interest on the unpaid principal balance of this Nota will be calculated as described in the "INTEREST CALCULATION METHOD" paragraph using a rate of 1.000 percentage paint over the Index, adjusted if necessary for any minimum and maximum rate limitations described below, resulting in an initial rate of 5.OOb% per annum based on a year of 360 days. NOTICE: Under no circumstances will the interest rate on this Note be less than 5.000% per annum or more than the maximum rate allowed by applicable law. INTEREST CALCULATION METHOD. Interest on this Note is computed on a 385/360 basis; that. is, by applying the ratio of the interest rate over a year of 360 days, mult~liad by the outstanding. principal balance, muldplfed by the actual number of days the principal balance is outstanding. All interest payable under this Note is computed using this method. PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Except for the foregoing, Borrower may pay without penalty all ar a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments of accrued unpaid interest. Rather, early payments will reduce the principal balance due. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: ORRSTOWN BANK, 77 EAST KING STREET, P.O. BOX 250 SHIPPENSBURG, PA 17257. LATE CHARGE. If a regularly scheduled interest payment is 16 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment or 850.00, whichever is greater. If Lender demands payment of this loan, and Borrower does not pay the loan in full within 16 days after Lender's demand, Borrower also will be charged either 5.000% of the sum of the unpaid principal plus accrued unpaid interest or S50.00, whichever is greater. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by adding a 3.000 percentage point margin ("Default Rate Margin"), The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had there been no default. If judgment is entered in connection with this Note, interest will continue to accrue after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, lender's reasonable attorneys' fees and lender's legal expenses, whether or not there is a lawsuit, including reasonable attorneys' tees, expenses for bankruptcy proceedings (including efforts to mod(fy or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. DISHONORED ITEM FEE: Borrower will pay a fee to Lender of 520.00 if Borrower makes a payment on Borrower's loan and the check or preauthorized charge with which Borrower pays is later dishonored, RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts, and, at Lender's option, to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights provided in this paragraph. COLLATERAL. Borrower acknowledges this Note is secured by the following collateral described in the security instruments listed herein: (A) a Mortgage dated July 14, 2009, to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania. EXHIBIT "A" PROMISSORY NOTE Loan No: 26425000301 (Continued) Page 2 fB) inventory, chattel paper, accounts, equipment and general intangibles described in a Commercial Security Agreement dated July 14, 2009. PROPERTY INSURANCE. Borrower understands that Borrower is required to obtain insurance for the collateral securing this Note. Further information concerning this requirement is set forth in the Security Agreement and Mortgage and in the Agreement to Provide Insurance, ail the terms and conditions of which are hereby incorporated and made a part of this Note. LINE OF CREDIT. This Note evidences a revolving Ilne of credit. Advances under this Note, as well as directions for payment from Borrower's accounts, may be requested orally or in writing by Borrower or by an authorized person. Lender may, but need not, require that all oral requests be confirmed in writing. Borrower agrees to be liable for all sums either: (A) advanced in accordance with the instructions of an authorized person or (B) credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this Note at any time may be evidenced by endorsements on this Note or by Lender's internal records, including daily computer print-outs. FINANCIAL INFORMATION. The Borrower agrees to provide the Lender with Federal Tax Returns andlor CPA prepared Financial Statements and any other financial intorrnation, required by the Lender's Original Commitment Letter to the Borrower, on an annual basis. If the Lender does not receive the required financial information within two hundred seventy (270) days of the Borrower's fiscal year end, the Lender has the right to increase the interest rate charged on this Note by 0.25%. The Borrower shall receive written notification ten (10) days prior to the Lender increasing the interest rate charged on this Note. OVERDRAFT PROTECTION. You may obtain credit advances under your Credit Line by writing a check on your checking account(s) 106110092 with us in excess of the available collected balance in the account(s). SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender end its successors and assigns. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if we report any inaccurate information about your accounttsl to a consumer reporting agency. Your written notice describing the specific inaccuracylies) should be sent to us at the following address: ORRSTOWN BANK 77 EAST KING STREET P.O. BOX 250 SHIPPENSBURG, PA 17257. GENERAL PROVISIONS. This Note is payable on demand. The inclusion of specific default provisions or rights of Lender shall not preclude Lender's right to declare payment of this Note on its demand. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Lender may delay or forgo enforcing any of Its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether es maker, guarantor, accommodation maker or endorser, shall be released from Iiabfiity. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. Ail such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND 1IVITH OR WITHOUT COMPLAINT FILED, CONFESSOR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OFTEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE-AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (S500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING; THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT ANO STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS. OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: AES HEA P CE INC. BY- ,. (Seep ichard M. occio, President of AES Hearthplace Inc. uses nq w~aM, v 0.e.oo.ow Coa• Nu4nd fnn.r s.wrna w... 1pi. 200e. ,u ll,y,n ea..wa ~ M e:lCflllrllDm.FC rMxtus na, ORRSTOWN BANK, Plaintiff v. AES HEARTHPLACE, INC., Defendant CERTIFICATION OF ADDRESSES IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PEN/NSYLVANIA NO. l ~ i ~. ~ c~ G~"v-/ 1 CONFESSION OF JUDGMENT c 4 ~~ ~e -~.: -r n3 --~ w ~:~ COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ss. David A. Baric, Esquire, being duly sworn according to law, deposes and says that to the best of his knowledge, information and belief, the addresses of the judgment creditor and the judgment debtor in the above-captioned case are as follows: Plaintiff: Orrstown Bank 77 East King Street Shippensburg, Pennsylvania 17257 Defen ant: AES Hearthplace, Inc. 1743 Pine Road Newville, Pennsyly a 17241 David A. Baric, Esquire Swo hand subscribed before me this ~ day of January, 2013. ~~w- ~ P, ENNSYI,viU~{Iq ~er-Nrer s. unsay, n ca~we ~, rlrn~d ca+~rny~ M~ . ~s, zois or ,~ ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA . r~ ~ v. NO. L 3 ~ ~7 ~ GIy ~ ( '~`~~" ~ '~ AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT ~ ~ ~ ~~~'.a' Defendant ~z ~~ ., -+~ x -mot ,p, AFFIDAVIT OF COMMERCIAL TRANSACTION ~ ~ ,w ~ r'a -# N -~'` I hereby certify that I am counsel for Orrstown Bank, the Plaintiff herein, and he~eb~'' -< certify that judgment is not being entered against a natural person in a consumer transaction. BARIC SCHERER C ~'(~ David A. Baric, Esquire ORRSTOWN BANK, v. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA No. C3vz~~crJal CIVIL ACTION-LAW AES HEARTHPLACE, INC. Defendant NO C 9 .2 OF ~MENT AND EXECUTION THEREON TO: AES Hearthplace, Inc. 1743 Pine Road Newville, Pennsylvania 17241 ~- ti~ ~< ~ z ~ r _ ~ ~~ ~ ~-' - ---" ~ ~,,, z0 ~ ~t 4~~ --! ~ 4 F 1 Y ..V ~ ~ ~+ A judgment in the amount of $94,010.66 has been entered against you and in favor of the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Baz Association 32 South Bedford Street Cazlisle, Pennsylvania 17013 (717) 249-3166 David A. Baric, Esquire 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff ORRSTOWN BANK, IN THE COURT OF CpMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT Defendant NOTICE OF JUDGMENT PURSUANT TO Pa.R.C P 236 TO: AES Hearthplace, Inc. 1743 Pine Road Nevwille, Pennsylvania 17241 Notice is hereby given to you of entry of a judgment against you in the above matter. Prothonotary Date: ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2013-00276 T AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT ' ' ° T' ;;a Defendant "�. r- CJ) N Y3> Cn -T r a-'C- PRAECIPE TO ATTACH SUBSTITUTE VERIFICATION Please attach the following Substitute Verification to the Answer To Defendant's PeTition To Strike Off/Open Confessed Judgment filed in this matter on March 7, 2013. Respectfully submitted, BARIC SCHERER LLC David A. Baric, Esquire Date: March 26, 2013 I.D. #44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 J13/2013 04:16 7172495755 BARIC SCHERER LLC PAGE 06 VERIFICATION I, Linda K. Mowen, verify that the statements made in the foregoing Answer To Defendant's Petition To Strike Off/Open Confessed Judgment are true and correct to the best of my knowledge, information and belief. I hereby ratify the verification previously supplied by my attorney,David A. Baric, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. Date: J Linda K. o Assistant Vice President Senior Consumer Collector Orrstown Bank J ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2013-00276 c ' Mw -� AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT ; Defendant <o C) rio MOTION TO SET HEARING ='�-? r j -< cA 1. The Plaintiff, Orrstown Bank, is represented in this matter by David A. Baric, Esquire. 2. The Defendant, AES Hearthplace, Inc., is represented by Marcus A. McKnight, III, Esquire. 3. Plaintiff requests that the Court set a hearing to take testimony in this matter. Respectfully submitted, BARIC SCHERER LC David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249- 6873 CERTIFICATE OF SERVICE I hereby certify that on April a� ,2013,I,David.A.Baric,Esquire of Baric Scherer LLC, did serve a copy of the Motion To Set Hearing,by first class U.S.mail,postage prepaid,to the party listed below, as follows: Marcus A. McKnight,III, Esquire Irwin&McKnight, P.C. 60 West Pomfret Street Carlisle, Pennsylvania 17013 David A. Baric, Esquire F ORRSTOWN BANK, IN THE COURT OF COMMON PLEA�-,OF, Plaintiff CUMBERLAND COUNTY, PENNSYa.Al _.. rnn, rt,,__�,. V. NO. 2013-00276 can AES HEARTHPLACE INC. CONFESSION OF JUDGMENT �� = vn - - .i Defendant :Z c:) C71 ^{ vi CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A notice of intent to serve the subpoena with a copy of the attached subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) No objection to the subpoena has been received; and, (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve. J David A. Baric, Esquire Date: February 27, 2013 ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2013-00276 AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT Defendant NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, Orrstown Bank, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: (( David A. Baric, Esquire Baric Scherer LLC 19 West South Street Carlisle, PA 17013 (717) 249-6873 ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2013-00276 AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT Defendant NOTICE TO: Irwin& McKnight, P.C. 60 West Pomfret Street Carlisle, Pennsylvania 17013 You are required to complete the following Certificate of Compliance when producing documents or things pursuant to Subpoena. ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2013-00276 AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT Defendant CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the subpoena issued on have been produced. Date: ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2013-00276 AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Irwin& McKnight, P.C. 60 West Pomfret Street Carlisle, Pennsylvania 17013 Within twenty (20) days after service of this subpoena,you are ordered by the court to produce the following documents or things: Any and all documents which reflect, refer or relate to the refinancing transaction of June 14, 2011 in which Members First Federal Credit Union extended a loan to AES Hearthplace, Inc. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the following address: Baric Scherer LLC 19 West South Street Carlisle, PA 17013 c/o David A. Baric, Esquire You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20)days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: David A. Baric, Esquire I.D. #44853 19 West South Street Carlisle, Pennsylvania 17013 (717)249-6873 Attorney for Plaintiff BY THE COURT, DATE: BY: Prothonotary SEAL OF THE COURT ORRSTOWN BANK, Plaintiff �� all V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT AES HEARTHPLACE, INC., Defendant 2013-00276 CIVIL ACTION IN RE: MOTION TO SET HEARING ORDER OF COURT AND NOW, this 7th day of May 2013, upon consideration of the Motion to Set Hearing, a HEARING on Defendant's Petition to Strike Off/Open Confessed Judgment is scheduled for 24 June 2013 at 1:30 p.m., in Courtroom Number Six of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Thoma A. Placey C.P.J. Distribution: c rn Co (David A. Baric, Esq. .< ,�. �� Marcus A. McKnight, III, Esq. <i� c ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA rIJ C V. N0.2013 -276 ' ' C_ AES HEARTHPLACE,INC., CI)r— r DEFENDANTS CIVIL ACTION—LAW � MOTION FOR CONTINUANCE AND NOW, this 24th day of June 2013, comes the Defendant, AES HEARTHPLACE, INC., by its attorneys, Irwin & McKnight, P.C., and moves for continuance as follows: 1. The above-captioned matter.is currently scheduled for a hearing on Monday, June 24, 2013 at 1:30 p.m. in Courtroom#6 before the Honorable Thomas A. Placey. 2. The Defendant in this case is AES Hearthplace, Inc. represented by Marcus A. McKnight, III, Esq. 3. The Plaintiff in this case is Orrstown Bank represented by David A. Baric, Esq. 4. This proceeding has not been previously continued. 5. Marcus A. McKnight, III, Esq., counsel for the Defendants, has incurred a back injury and is unable to attend the Hearing on Monday, June 24, 2013 at 1:30 p.m. 6. David A. Baric, Esq., counsel for the Plaintiff, has been contacted and has no objection to the rescheduling of this Hearing. 2 7. I hereby certify that if a continuance is granted, all parties will be notified of said rescheduling. Respectfully submitted, IRWIN & MCKNIGHT,P.C. By: Marcus X. McKnight III, quire 60 West Pomfret Stree Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for Defendant Date: June 24, 2013 3 ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA V. NO.2013-276 AES HEARTHPLACE,INC., DEFENDANTS CIVIL ACTION—LAW CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: David A. Baric, Esq. 19 West South Street Carlisle, PA 17013 IRWIN & McKNIGHT, P.C. By: Marcus . Mc ig III, Esquire 60 West Pomfr eet Carlisle, PA 17013 (717)249-2353 Supreme Court I.D. No. 25476 Date: June 24, 2013 4 6 ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA V. NO.2013 -276 AES HEARTHPLACE,INC., DEFENDANTS CIVIL ACTION—LAW ORDER OF COURT AND NOW,this 24`" day of June 2013, upon consideration of the Defendant's attached Motion for Continuance, it hereby Ordered and Directed that the Hearing scheduled for Monday, June 24, 2013 at 1:30 p.m. be continued. The new date and time for the Hearing is Thursday, August 29, 2013, at 1:30 p.m. Defendant's counsel shall promptly notify all interested parties of this Order. BY THE-ffMR: Thomas A. P acey, C.P.J. -v 0 -- r n Co c_ c" ry :`OCLi / _Cl ✓David A.Baric,Esq. Attorney for Plaintiff ✓Marcus A. McKnight, III, Esq. Attorney for Defendant ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF C, Plaintiff CUMBERLAND COUNTY, PENNSYLVO,4qlk, V. NO. 2013-00276 cnr- -o> co AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT Defendant CD C-- c,;, Po _j MOTION FOR CONTINUANCE NOW, comes Plaintiff, Orrstown Bank,by and through its attorneys, BARIC SCHERER LLC, and files the within Motion for Continuance and, in support thereof, sets forth the following: I This matter is currently scheduled for a hearing before the Honorable Thomas A. Placey on Thursday, August 29, 2013 at 1:30 p.m. 2. Undersigned counsel is requesting a continuance of the hearing scheduled in this matter so that the parties may attempt to resolve this matter 3. Undersigned counsel has been in contact with Marcus A. McKnight, 111, counsel for the Defendant and he concurs in undersigned counsel's request for a continuance WHEREFORE, Plaintiff requests this matter be continued to a later date to allow the parties to attempt to resolve this matter. Respectfully submitted, BARIC SCHERER L David A. Baric, Esquire I.D. #44853 19 West South Street Carlisle,Pennsylvania 17013 (717) 249-6873 CERTIFICATE OF SERVICE I hereby certify that on August 28, 2013, 1, David A. Baric, Esquire of Baric Scherer LLC, did serve a copy of the Motion For Continuance,by first class U.S. mail,postage prepaid, to the party listed below, as follows: Marcus A. McKnight, 111,Esquire Irwin& McKnight, P.C. 60 West Pomfret Street Carlisle, Pennsylvania 17013 David A. Baric, Esquire ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2013-00276 AES HEARTHPLACE, INC., CONFESSION OF JUDGMENT Defendant ORDER OF COURT AND NOW,this day of AjjQLUj,. 2013,upon consideration of the within Motion For Continuance,this matter is continued to Thaim Jai the L4 (Z-i day of 2013 at Up.m. BY THE COURT, Thomas A. Placey, J. ✓ZDavid A. Baric, Esquire Baric Scherer LLC 19 West South Street Carlisle,Pennsylvania 17013 arcus A. McKnight, III,Esquire Irwin&McKnight, P.C. 60 West Pomfret Street Carlisle, Pennsylvania 17013 co rn C5 -T! =C) Zr 5>- -< cm ORRSTOWN BANK, Plaintiff �,,�un uir` °l ,1� � Nat V. •��► `: ► IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT AES HEARTHPLACE, INC., Defendant 2013-00276 CIVIL ACTION IN RE: MOTION TO STRIKE ORDER OF COURT AND NOW, this 7th day of November 2013, upon agreement of the parties, the scheduled hearing on the Motion to Strike is continued generally. Either party may request the court to reschedule the matter upon written application. BY THE COURT, Thomas A. Placey C.P.J. Distribution: .../ )avid A. Baric, Esq. /1-Marcus A. McKnight, Ill, Esq. le; *e_S tra.at I.EcL - th M rnt.-:: cry w --t ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA v. ,.._, . NO. 2013 - 276 74 AES HEARTHPLACE, INC., 3 ._ DEFENDANTS CIVIL ACTION - LAW rn rn i== ..!-rt cnr. MOTION TO HOLD A STATUS CONFERENCE r ` :.I: _, AND SCHEDULE A HEARING y c") C N _. 0,4 AND NOW, this 1st day of December 2014, comes the Defendant, AES HEARTHPLACE, INC., by its attorneys, Irwin & McKnight, P.C., and moves for a Status Conference and schedule a hearing to open the Judgment entered by Orrstown Bank in this action as follows: 1. The Defendant in this case is AES Hearthplace, Inc. represented by Marcus A. McKnight, III, Esq. 2. The Plaintiff in this case is Orrstown Bank represented by David A. Baric, Esq. 3. The hearing of the Petition of the Defendant to Strike or Open the Judgment of Orrstown Bank in this action was continued generally by Order of Court dated November 13, 2013. A Copy is attached and marked as Exhibit "A". 4. The parties entered into a Temporary Forbearance Agreement dated November 6, 2013 in which the Defendant agreed to make additional principal payments as well as interest for a period of one year. The outstanding principal and loan interest was paid in full by the Defendant to the Plaintiff. The Plaintiff has refused to satisfy its Judgment, Mortgage on the property, or satisfy its outstanding security interest. The Plaintiff claims additional attorney fees and costs which my client never agreed to pay and were never required to incur in order for the Defendant to repay the outstanding loan balance. 2 5. The Plaintiff has acted in bad faith and damaged the reputation and credit rating of the Defendant. The Defendant, AES Hearthplace, Inc., is seeking a Status Conference and hearing in order to force the Plaintiff to open or satisfy its Lien, Judgment, and Mortgage. The Defendant is also seeking payment of its own legal fees with damages. Respectfully submitted, IRWIN & MCKNIGHT, P.C. By: Marc . A. McK', Esquire 60 We Pomfret ' t Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for Defendant Date: December 1, 2014 3 EXHIBIT "A" ORRSTOWN BANK, Plaintiff v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT AES HEARTHPLACE, INC., Defendant 2013-00276 CIVIL ACTION IN RE: MOTION TO STRIKE ORDER OF COURT AND NOW, this 7th day of November 2013, upon agreement of the parties, the scheduled hearing on the Motion to Strike is continued generally. Either party may request the court to reschedule the matter upon written application. BY THE COURT, Distribution: David A. Baric, Esq. Marcus A. McKnight, III, Esq. Thomas A. Placey C.P.J. EC VE NOV 0 8 2013 IRWIN & McKNIGHT LAW OFFICES stzb 0.41 $a. a W ORRSTOWN BANK, PLAINTIFF v. AES HEARTHPLACE, INC., DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 2013 - 276 CIVIL ACTION — LAW CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: David A. Baric, Esq. 19 West South Street Carlisle, PA 17013 IRWIN & IGHT, P.C. By: Marcus Mc t, III, Esquire 60 West Pomfret ' reet Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: December 1, 2014 4 ORRSTOWN BANK, Plaintiff v. AES HEARTHPLACE, INC., Defendant .'LED -OFF ICS. 1r THE PRO THONG 2C !'DEC -D PH 3: 37 CUMBERLAND COUNTY PENNSYLVANIA Count? of QCumbtrianb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13-276 CIVIL TERM - IN RE: MOTION TO HOLD A STATUS CONFERENCE AND SCHEDULE A HEARING ORDER OF COURT AND NOW, this 8t" day of December 2014, upon consideration of the Defendant's Motion to Hold a Status Conference and Schedule a Hearing, a STATUS CONFERENCE in the above -captioned matter is hereby scheduled for 8 January 2015 at 10:30 a.m. in Courtroom Six of the Cumberland County Courthouse, Carlisle, Pennsylvania. DEFENDANT shall effectuate service of this Order of Court upon Plaintiff. Dom' ribution: ✓D vid A. Baric, Esq. rcus A. McKnight, III, Epq. c7 cgs 8 Lf Thoma . Placey C.P.J. ORRSTOWN BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO.2013-00276 AES HEARTHPLACE, INC., CIVIL ACTION -LAW = , Defendant -0' -�= "1W CI :i, -n R C-)-.:,:),:1 U)E - :'y �--z REPLY TO MOTION TO HOLD STATUS -- a ea _ CONFERENCE AND SCHEDULE HEARING <=, -I AND NOW, comes Orrstown Bank ("Orrstown"), by and through its attorneco .w ys,BARIC 'y SCHERER LLC, and files the within Reply to Motion to Hold Status Conference and Schedule Hearing and, in support thereof, sets forth the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. It is admitted only that the parties entered into a Temporary Forbearance Agreement, a true and correct copy of which is attached hereto as Exhibit "A" and made a part hereof by reference. The remainder of the averments are denied. To the contrary, Defendant has not satisfied the outstanding debt. The underlying loan documents relating to this matter specifically stated: If Lender institutes any suit or action to enforce any of the terms of this Mortgage, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expense Lender incurs that in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the indebtedness. Additionally, Orrstown specifically reserved the right to pursue collection of its fees and costs in the Temporary Forbearance Agreement which provides, in relevant part, as follows: "Bank also contends and reserves the right to pursue collection of all fees and costs including but not limited to attorney fees." 5. Denied. To the contrary, the only "bad faith" evident in this matter has been the acts of Defendant in wrongfully pulling $90,000.00 from the equity line of credit extended by Orrstown after Defendant believed he had closed the account and the unsupportable legal and factual positions taken by Defendant prior to and during the pendency of this litigation. There is no basis whatsoever for Defendant's claim that he is entitled to seek payment of its legal fees or other damages. Respectfully submitted, BARIC SCHERER David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 C; . TEMPOARARY FORBEARANCE AGREEMENT t 1 THI TEMPORARY FORBEARANCE AGREEMENT is made this day of Mev e,c,, , 2013, by and between AES Hearthplace, Inc. ("Borrower"), Richard Soccio and Monica Soccio ("Guarantors") and ORRSTOWN BANK ("the Bank"). BACKGROUND ► A. On or about July 14, 2009, Borrower and Guarantors executed and delivered to the Bank Commercial Guaranty Agreements in the original principal amount of $100,000.00. B. On or about July 14, 2009, Guarantors executed and delivered to the Bank a Mortgage in the original principal amount of $100,000.00. C. Payment of the Note is secured by, inter alia, a Mortgage dated the same date in the original principal amount of $100,000.00, covering all that certain real estate together with improvements erected or to be erected to thereon situate in Cumberland :County, Pennsylvania as referenced in the Mortgage (the "Property"). The Mortgage, the Note and any and all other documents executed by Borrower and Guarantors in connection with the loans evidenced by the Mortgage, Guarantees and the Note are collectively referred to herein as (the "Loan Documents"). D. Borrower and Guarantors dispute that they are in default with the Bank and have continued to make monthly payments to the Bank. Bank contends there has been a default. E. The Bank filed a Complaint (the "Complaint") before the Court of Common Pleas of Cumberland County, Commonwealth of Pennsylvania to Docket No. 2013-276 on January 16, 2013 against Borrower as the named Defendant to enforce the Bank's rights and remedies against Borrower in connection with the Note (the "Note Action") and has entered a judgment by confession. Further, the Bank has filed an action in mortgage foreclosure against Guarantors docketed to No. 2013-276 in the Court of Common Pleas of Cumberland County, Pennsylvania. F. Borrower has requested the Bank forbear at this time from the continued exercise and enforcement of the Bank's rights and remedies against Borrower and the Guarantors' Property as a result of the Borrowers' and Guarantors' defaults, and to rnodify the terms of the Loan evidenced by the Note, and the Bank has agreed to Borrowers' request, subject to the provisions of this Agreement. AGREEMENT NOW THEREFORE, in consideration of the foregoing Recitals, which constitute an integral part of this Agreement and are expressly incorporated as part of this Agreement, and of the agreements hereinafter set forth, and intending to be legally bound, Borrower and Guarantors' and the Bank agree as follows: . 1. Borrower and Guarantors' hereby specifically acknowledge Borrowers' and Guarantors' consent to, and agreement with, the Bank's right to bring a Note action if a default occurs and hereby specifically reaffirm, affirm, ratify and confirm the validity and enforceability of the Loan Documents if and when a default occurs. They specifically dispute that any default has occurred in this case. Bank contends that there pas.been a default, however, Bank is willing to enter into this Agreement in an attempt • to resolve this matter. Bank also contends and reserves the right to pursue collection of all fees and costs including but not limited to attorney fees. • EXHIBIT "A" 2. Borrower hereby specifically acknowledges and agrees the amounts due to the Bank under the Note, Guarantees and the Mortgage as of November 5, 2013 is stated as a principal balance of $77,600.00. Borrower and Guarantors unconditionally acknowledge and confirm the foregoing indebtedness together with continually accruing interest and related costs, fees and expenses is, as of the date hereof, owing. In addition to the above payments and obligations, Borrowers shall pay all costs. (_associated with the preparation of this forbearance agreement. For a period of one (1) year from the date of this Agreement (the "Forbearance Period"), Borrowers and Guarantors shall make a monthly note and mortgage payment in the amount of two thousand five hundred ($2,500.00) dollars to the Bank. Payments . to begin November 14, 2013. This payment shall be applied against the principal balance and interest which shall accrue at the rate of four (4%) percent amortized over 'a period of twenty (20) years. It being understood, however, that the entire indebtedness is to be paid in one (1) years time. Before the conclusion of the one (1) year from, the date of this agreement, the Borrowers and Guarantors shall pay all remaining principal and interest. If the indebtedness is to be repaid by sale of property then at least sixty (60) days prior to the expiration of the forbearance period, Borrower shall produce an executed Agreement of Sale to Bank for the Property or provide a commitment from a lender with a payoff to the Bank, with such payoff occurring on or before the expiration of this Forbearance Agreement. 3. In exchange for payment and Borrowers' and Guarantors' agreements as set.forth herein, the Bank agrees, without waiving any existing default of Borrowers or Guarantors, or any declaration of any existing default of Borrowers, or any demand for payment of all or any part of Borrowers' or Guarantors' indebtedness to the Bank, or any acceleration of Borrowers' or Guarantors' indebtedness to the Bank, or any of the .: :Bank's rights or remedies against Borrower or Guarantors property, to forbear from proceeding against Borrowers or Guarantors or the Guarantor's property for one (1) year from the date of this agreement provided Borrowers perform all of their obligations under this Agreement and all loan documents. 4. Borrowers and Guarantors hereby reaffirm, affirm, ratify and confirm Borrowers' and Guarantors' absolute and unconditional liability to make all payments and to observe and perform all of the duties, obligations and other agreements of Borrowers and Guarantors under or in connection with the Loan Documents including, but not limited to, the Notes and Mortgages and all other instruments, agreements and documents evidencing and/or securing the indebtedness subject only to any express modification contained in this Agreement. Except as expressly set forth herein, nothing contained in this Agreement releases, limits or otherwise affects in any way or at any time the liability of Borrowers or Guarantors for or with respect to the Borrowers' obligations and agreements under and in connection with the Loan Documents. This .Agreement does not evidence or represent in any way new indebtedness or satisfaction 'Of Borrowers' and Guarantors' obligations to Bank. All provisions of the Loan Documents remain in full force and effect, enforceable by Bank in accordance with the provisions of each of them, except as expressly modified hereby. Nothing contained in this Agreement waives or should be construed as a waiver of any of Bank's rights and remedies under the Loan Documents or at law or equity. Borrowers and Guarantors agree that each and all of the Mortgage and Note are collateral and security for the Loans. 5. All of the provisions of the Loan Documents are incorporated herein by reference and made a part hereof as if set forth in full herein, and all of the provisions of this Agreement are incorporated into the Loan Documents and made a part thereof as if set forth in full therein. The provisions of this Agreement are and will, be deemed to be • supplemental to, and not in derogation of, the provisions of the Loan Documents, whenever possible. However, if there is any conflict or inconsistency between or among the,provisions of the Loan Documents and this Agreement, the provision(s) determined by Bank in its sole discretion to be applicable will govern and control the resolution of any such conflict or inconsistency, and Borrowers agree to be bound by Bank's determination. 6. Bank's agreements contained herein are conditioned upon and subject to the following representations, warranties, covenants and agreements of Borrowers: a. Bank's agreements contained herein are specifically contingent upon the. receipt by the law office of Baric Scherer LLC of a copy of this Agreement and all other Loan Documents including, but not limited to, Note, Mortgage as required by this Agreement, bearing the original signatures of the Borrowers. b. The Property encumbered by the Mortgage shall not at any time be used in any manner so as to cause any contamination of the environment or any environmentally threatening condition in violation of, or which may require remediation under, any applicable law, regulation, rule, ordinance, requirement, restriction, ti. covenant, order or decree; and c. The Property encumbered by the Mortgage have not been or will not at any time be used in violation of any law, regulation, ordinance, requirement, restriction, covenant, order or decree which may result in the forfeiture of the properties encumbered by the Mortgages. d. Borrowers and Guarantors have the power, authority and capacity to enter into and perform this Agreement and all related instruments, agreements and documents, and to incur the liabilities herein and therein provided for, and the Borrowers and Guarantors have taken all proper and necessary action to authorize the execution, delivery and performance of this Agreement and related instruments, agreements and documents. 7. This Agreement is valid, binding and enforceable against the Borrowers and Guarantors in accordance with its terms. 8. No consent, approval or authorization of, or filing, registration or qualification with, any person is required to be obtained by Borrowers and Guarantors in connection with the execution and delivery of this Agreement, or any related instrument, agreement or document, or undertaking or performance of any liability hereunder or thereunder. 9. The Borrowers and Guarantors shall not, during the term of this Agreement, pledge, alienate, mortgage or further encumber the real property given as security for the Loans or further encumber that property known as 1743 Pine Road, Newville, Cumberland County, Pennsylvania without the written consent of Bank. The occurrence of any one or more of the following is a default under this Agreement: a. Borrowers' or Guarantors' failure to make payment required under t`he.provisions of this Agreement on or before the due date; b. Borrowers' or Guarantors' failure to observe or perform each and every one of the provisions on Borrowers' part to be observed or performed under this Agreement, or under the Notes, Mortgages or Change In Terms Agreements; c. Commencement by Borrowers of any proceedings in bankruptcy or proceedings for an arrangement or reorganization, or for the readjustment of debts under any law, whether state or federal, for the relief of debtors, now or hereafter existing, or commencement of any such proceeding against Borrowers; d. Application by Borrowers or Guarantors for the appointment of a receiver or appointment of a receiver for Borrowers; e. Making of an assignment by Borrowers or Guarantors for the benefit of creditors; f. Entry of any judgment or issuance of any execution process .against Borrowers or Guarantors, or any of Borrowers' or Guarantors' respective assets ,(other than by Bank) which is not removed or satisfied within twenty (20) days; g. If any representation, warranty, or financial statement or presentation of Borrowers or Guarantors at any time made to Bank in connection with Borrowers' or Guarantors' indebtedness to Bank is determined by Bank to be materially incorrect or misleading, including without limitation any financial statements provided by Borrowers or Guarantors to Bank in accordance with this Agreement. h. Any action is taken against the real properties given as security for the Loans by any party including, but not limited to, execution against the real property or institution of foreclosure proceedings against the real property. i. Death or incapacitation of any of the Borrowers or Guarantors. 10. Upon the occurrence any default under this Agreement, the entire .outstanding principal balance under the Note and the Mortgage, together with all accrued and unpaid interest thereon, and fees provided therein shall become immediately due and payable, unless otherwise elected by Bank, and Bank may jrnrnediately and without notice or demand exercise or proceed to enforce any or all of the rights or remedies available to Bank at law or in equity, or under this Agreement, or under the Note, the Mortgage, the Loan Documents, or any or all of them, including without limitation the right to proceed in the pending action and/or take any other action . the Bank deems appropriate. Bank may exercise or proceed to enforce Bank's rights and remedies independently or cumulatively, concurrently or successively, against Borrowers or Guarantors, or any property of Borrowers or Guarantors, in connection with all of the indebtedness of Borrowers or Guarantors to Bank at any time or times and in any order as Bank may elect. Failure of Bank to exercise any right or remedy as provided herein at any time will not constitute a waiver of any such remedy or preclude the Bank from the subsequent exercise of any such remedy. 11. Borrowers and Guarantors agree that a default under the Note, the Mortgage, the Loan Documents, this Agreement, or under any other agreement or document evidencing or securing any other indebtedness or obligation of Borrowers or Guarantors to Bank, is a default under all of the Loan Documents, this Agreement and pil.such other agreements and documents. 12. Borrowers and Guarantors will execute or deliver to Bank such additional documents, agreements or materials, or will take such further action, as Bank may reasonably request at any time and from time to time to give effect to the purposes or provisions of this Agreement. 13. All documents, agreements and materials of any nature whatsoever required at any time to be executed or delivered to Bank in connection with any of the obligations of Borrowers or Guarantors to Bank under this Agreement will be in form 'and substance satisfactory to Bank in Bank's sole discretion. • 14. No modification of any provision of this Agreement or the Note or the Mortgage or the Loan Documents shall be effective unless in writing and signed by all of the parties. 15. If at any time or times Bank believes it to be necessary or desirable to refer any aspect of the administration of this Agreement, or the enforcement of any 'provision of this Agreement, to any attorney, Borrowers and Guarantors will be liable to pay or reimburse Bank for all reasonable attorneys' fees and costs incurred or paid by Bank as a result of such referral, which fees and costs will be due when incurred and payable immediately upon demand therefor. 16. Time is of the essence of Borrowers and Guarantors obligations under this Agreement 17. The provisions of this Agreement are severable and the invalidity or unenforceability of any provision will not affect or impair the remaining provisions, which ;shall remain in full force and effect. 18. CONFESSION OF JUDGMENT FROM ORIGINAL NOTE AND AGREEMENTS ARE STILL IN FULL FORCE AND EFFECT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OF ANY COURT IN THE COMMONWEALTH 'OF. PENNSYLVANIA, OR ELSEWHERE TO APPEAR AT ANY TIME FOR .BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST,LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500.00) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES ,UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. :BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE 'CSR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPESENTED BY INDEPENDENT LEGAL COUNSEL. • 19. In the event of a default by Borrower or Guarantors on any of their obligations or duties under this Agreement, Bank shall, within thirty (30) days of the default notify Members First Federal Credit Union of the default. By providing written notice to: ATTN: Ryan P. Siney, Esquire Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, Pennsylvania 17043 20. This Agreement shall be interpreted and construed under the laws of the Commonwealth of Pennsylvania. Borrowers and Guarantors consent to the jurisdiction of the Court of Common Pleas of Cumberland County, Pennsylvania and the United States District Court for the Middle District of Pennsylvania over all matters arising from or related to the Note, the Mortgage, the Loan Documents and this Agreement. Borrowers and Guarantors agree that any dispute or controversy between Borrowers and/or Guarantors and Bank would not lend itself to resolution or determination in trial by.jury. Therefore, Borrowers and Guarantors and Bank each hereby voluntarily, knowingly and understandingly waive the right to trial by jury in any action or proceeding with respect to any dispute or controversy which may arise between them under or in connection with this Agreement and the subject matter of this Agreement. 21. The Bank agrees that it shall permit Members First Federal Credit Union to enter the action docketed to No. 2013-276 as a party. 22. This Agreement shall inure to the benefit of Bank, its predecessors, successors and assigns, and the affiliates, stockholders, directors, officers, employees, agents and attomeys of any of them, and all obligations of Borrowers shall bind their respective heirs, personal representatives, successors and assigns. 23. THE UNDERSIGNED HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS FORBEARANCE AGREEMENT AND HAVE RECEIVED THE ADVICE OF INDEPENDENT LEGAL COUNSEL OF THEIR CHOICE, OR HEREBY WAIVE THE ADVICE OF LEGAL COUNSEL, IN EXECUTING THIS FORBEARANCE AGREEMENT, AND THE UNDERSIGNED HEREBY KNOWINGLY, UNDERSTANDINGLY AND VOLUNTARILY EXECUTE THIS FORBEARANCE AGREEMENT. IN WITNESS WHEREOF, and inte ing to be legally bound hereby, Borrowers have executed this Agreeme j' •f t ' e date first written above. Richard Soccio occio (SEAL) AES Hearthplace, Inc. (SEAL) r (SEAL) Orrstown Bank (SEAL) By: 774v,b'h,t , EVA-I/LE Title: 1k V 1 dv r 41) et, w 4- CERTIFICATE OF SERVICE I hereby certify that on December 10, 2014, I, David A. Baric, Esquire of Baric Scherer LLC, did serve a copy of a Reply To Motion To Hold Status Conference and Schedule Hearing by first class U.S. mail, postage prepaid, to the party listed below, as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, Pennsylvania 17013 1 David A. Baric, Esquire THE ,v'edU [i-3e1.f 211!5 JAN 16 PI ga 09 CUMBERLAND COUNTY PENNSYLVANIA ORRSTOWN BANK, Plaintiff. v. AES HEARTHPLACE, INC., Defendant Countp of eittitheritut IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2013---00276 CIVIL TERM IN RE: HEARING ORDER OF COURT AND NOW, this 15th day of January 2015, following a Status Conference with counsel, the hearing is scheduled for 18 February 2015 at 3:00 p.m. in Courtroom Six of the Cumberland County Courthouse, Carlisle, Pennsylvania Qistribution: ✓DJavid A. Baric, Esq. arcus A. McKnight, III, Esq. 041 -pies 1'l,4, l t®/IS BY T Thomas ' . Placey C.P.J.