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HomeMy WebLinkAbout05-4455HOURIGAN, KLUGER & QUINN A PROFESSIONAL CORPORATION BY: James T. Shoemaker, Esquire IDENTIFICATION NO. 63871 ATTORNEY FOR PLAINTIFF MELLON BANK, N.A., now by assignment CITIZENS BANK OF PENNSYLVANIA 8 West Market St. Wilkes-Barre, PA 18701, vs. Plaintiff SANG HO KWAK, individually and d/b/a Young's Food Market and Say-Ford Supermarket and YON HWA KWAK 2208 Chatham Way Harrisburg, PA 17110, Defendants NOTICE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION -- LAW MORTGAGE FORECLOSURE NO. DS --O/Z YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. 677651.1 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. COURT ADMINISTRATOR Cumberland County Court House Carlisle, PA 17013 (717) 249-1133 -or- PENNSYLVANIA LAWYERS REFERRAL SERVICE P.O. Box 1086, 100 South Street Harrisburg, PA 17108 (Pennsylvania residents phone: 1-800-692-7375; out-of-state residents phone: 1-717-238-6715) HOURIGAN, KLUGER & QUINN, P.C. BY v James T. Shoemaker, Esquire Counsel for the plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania 677651.1 y JL4? yAIL AA ( lMA, IJ W UkdL ( kG Lll 1Y}Vy kg4gc aalcu eanrr_ un VWnx as llvlort.aagor(s)to_IleIIrn Bank, N. b. as Mortgagee: Adl tha, ce,.,tain panel of land situated in TOWNSHIP Of UPPER FRANKFORD being known as NORTd MOUNiAN I ROAD/!1/!)PARCEL 943.04-03S7-028N and being mere fully described in Deed Book 36-0 Page 349 recorded on 1010111993 1 among the land r=eords of CUNMERLAND County, PA ` Parcel ID Number: 43-04-0387.02SN l BQQdWrAGE 437 LZ-=Rev_(496) LC 396iD396 02'15 P 16664-3323 ' ' 1 . (7r= roii os%o Igm ?`. . c? cn E- - L0 , -n N rV .y f• . v1 . O - .. ? O - C) Y ** TOTAI pflac $ 395,000.00 Promise To Pay. FOR VALUE RECEIVED,add intending to be legally bound, Undersigned, as defined below, promises to pay to: Mellon Bank, N.A. ("Bank") or its order at Harrisburg, Pennsylvania the sum of Three Hundred Ninety Five Thousand and 00/100 Dollars ($ 395.000.00 ), with interest on the outstanding balance from the date of this Promissory Note ("Note") at the rate(s) ("Contractual Raters)") and in accordance with the repayment schedule specified below. Contractual Rate(s); Repayment Schedules. ? Interest at a rate per annum'which is % above Bank's Prime Rate, such rate to change from time to time as of the effective date of each announced change in such Prime Rate, shall be paid when principal payments are due. Principal shall be paid in consecutive monthly installments of $ each, commencing on and continuing thereafter on the day of each month with the balance of the indebtedness, ifnot ner paid, due and payable on ? Interest at a rate per annum which is % above the CD Rate, such rate to change from time to time as of the effective date of each change in or resetting of the CD Rate, shall be paid when principal payments are due. Principal shall be paid in consecutive monthly installments of $ each, commencing on and continuing thereafter on the day of each month with, the balance of the indebtedness, if not sooner paid, due and payable on ? The principal balance herieof, together with all accrued and unpaid interest, shall be paid on and interest at a rate per annum which is % above Bank's Prime Rate, such rate to change From time to time as of the effective date of each announced change in such Prime Rate, shall be paid on the day of eachi month commencing on ? The principal balance hereof, together with all accrued and unpaid interest, shall b,!* on . and interest at a rate per annum whi% above the CD Rate, such rate to change from me to time as of the effective date of each change in or resetting of the CD Rate, shall be paid on the day of each month commencing on ?In no event shall the rate charged Ion this Note exceed % per annum. ? The principal balance he eof, together with all accrued and unpaid interest, shall be psi oa and interest at the rate of % r annum shall be paid on the day of each m nth commencing on Interest shall be calculated at the sn , per annum. Principal and 'interest shall 17q - consecutive monthly installmt $ 3, ; i . 65 each, commencing on 07/01/1999 and continuing thereafter on the 1ST day of each month with the balance of the indebtedness, if not sooner paid, due and payable on 06/01/2014 . During any period that the Contractual Rate(s) is reduced by 0.25% per annum, as described elsewhere in this Note, installments of printpaI and interest shall instead be in the amount of $ 3,864.70 each. If the reduction in the Contractual Rate(s) is no longer in effect, the amount of installments of principal and interest shall return to and be the same as the amount of such installments prior to the reduction in the Contractual Rate(s). Undersigned shall pay Bank concurrently with the execution and delivery hereof, or Undersigned previously has paid Bank, an origination fee of $ 3,950.00 , to compensate Bank for its underwriting, origination and administration of the loan evidenced by this Note. Tbis fee shall be deemed fully earned by Bank on the date hereof, shall not be refunded, and is in addition to any other fees, costs or expenses which may be due and payable hereunder. Unless Undersigned has authorized Bank to take payments out of a Mellon Checking Account, as set forth below, Undersigned will mail or deliver to Bank the amount billed by Bank each month. Undersigned will mail or deliver the payments so that Bank receives all payments no later than the due date shown on each bill. ? Undersigned authorizes Bank to take alt payments of principal and/or interest and/or other amounts due under this Note out of Undersigned's Mellon Checking Account Number , titled in the name(s) of on or after the day of each month. Undersigned will keep a sufficient balance in this account to cover the full amounts of all required payments. At its option, Bank may terminate Undersigned's ability to use this service. This authorization shall remain in effect until revoked by Undersigned in writing or until the loan evidenced by this Note is paid in full or until Bank has terminated Undersigned's ability to use this service, as the case may be. Prior to maturity, while this authorization is in effect and provided that Undersigned keeps a sufficient balance in this account to cover the full amounts of all required payments, the Contractual Rate(s) shall be reduced by 0.25% per annum. This authorization will be effective even though this Note and the account may be titled in different versions of Undersigned's name. If the original principal amount of this Note is in excess of $10,000.00, or if Undersigned is a corporation, interest shall be calculated on the basis of a 360-day year and actual days elapsed. If the original principal amount of this Note is $10,000.00, or less, and Undersigned is not a corporation, interest shall be calculated on the basis of a 365-day year or 366-day year, as the case may be, and actual days elapsed. "Prime Rate" shall mean the interest rate per annum announced from time to time by Bank as its Prime Rate. The Prime Rate may be greater or less than other interest rates charged by Bank to other borrowers and is not solely based or dependent upon the interest rate which Bank may charge any particular borrower or class of borrowers. If a single certificate of deposit is held by Bank as collateral security ebtedness evidenced by this Note, as more fully 31T a Assignment of Deposit Account expressly referring "CD Rate" shall mean the interest rate paid by Bank sate of deposit (the "Certificate"), said CD Rate to be Page 1 of 5 reset by Bank at each renewal of the Cettificate. If more than one certificate of deposit is held by Bank as collateral security for the indebtedness evidenced by this Note, as more fully described in the Assignment(s) of Deposit Account expressly referring to this Note, "CD Rate" shall mean the highest of the interest rates paid by Bank on such certificates of deposit (the "Certificates"), said CD Rate to be reset at each renewal of each Certificate. Late Charge. If any payment (including without limitation any regularly scheduled payment, balloon payment or final payment) is not paid within 15 calendar days after it is due, Undersigned will pay a late charge of the greater of $25.00, or three percent (3%) of the unpaid portion of the scheduled payment due (regardless of whether the payment due consists of principal and interest, principal only or interest only). Such late charge shall be in addition to any increase made to the Contractual Rate(s) applicable to the outstanding balance hereof as a result of maturity of this Note or otherwise, as well as in addition to any other applicable fees, charges and casts. DetaultRate(s); Post-Maturity Rate(s), Upon the occurrence of any Event of Default (as defined in this Note), at Bank's option, interest shall accrue at a rate equal to two percent (201o) per annum above the Contractual Rate(s) until the earlier of the date that such Event of Default has been cured or until and including the date of maturity hereof. After maturity, whether by acceleration or otherwise, interest shall accrue at a rate equal to two percent (2%) per annum above the Contractual Rate(s) until all sums due hereunder are paid. Interest shall continue to accrue after the entry of judgment (by confession or otherwise) at the Contractual Rate(s) until all sums due hereunder and/or under the judgment are paid, except that after maturity or, at Bank's option, upon the occurrence of any Event of Default, interest shall accrue at a rate equal to two percent (20/*) per annum above the Contractual Rate(s). Books and Records; Time of Essence. So long as Bank is the holder hereof, Bank's books and records shall be presumed, except in the case of manifest error, to accurately evidence at all times all amounts outstanding under this Note and the date and amount of each advance and payment made pursuant hereto. The prompt and faithful performance of all of Undersigned's obligations hereunder, including without limitation time of payment, is of the essence of this Note. Security Interest, Setoff and Assignments. To secure all amounts at any time owing or payable under this Note and Undersigned's obligations hereunder, as well as to secure all costs and expenses incurred by Bank in the collection or enforcement of this Note or the protection of any collateral securing this Note (including without limitation all advances made by Bank for taxes, levies, insurance, filing fees, and repairs to or maintenance of said collateral), Undersigned hereby grants to Bank a security interest in, lien upon, and right of setoff against, all deposit accounts, credits, securities, moneys, or other property of Undersigned which may at any time be in the possession of, delivered to, or owed by Bank, including any proceeds or returned or unearned premiums of insurance, and the proceeds of all the foregoing property. Other property, real or personal, may secure this Note, as set forth in other documents and agreements. Undersigned acknowledges and agrees that Undersigned shall renew, or cause to be renewed, the Certificate(s), if any, until the indebtedness evidenced by this Note has been paid in full. Undersigned further agrees that Undersigned will execute, or will cause to be executed, upon demand by Bank any financing statements or other documents, including, without limitation, additional Assignments of Deposit Account, which Bank may deem necessary or desirable to evidence, perfect or maintain perfection of the security interests created in the Certificate(s) and any renewals, replacements and substitutions thereof. Additional Terms and Conditions 1. Covenants. Undersigned covenants and agrees that until all indebtedness evidenced hereby has been paid in full, Undersigned shall: (a) maintain at all times a positive tangible net worth; (b) (1) have ail Environmental Permits necessary for the conduct of each of Undersigned's businesses and operations, (2) conduct each of Undersigned's businesses and operations in material compliance with all applicable Environmental Laws and Environmental Permits, (3) not permit to exist any event or condition that requires or is likely to require Undersigned under any Environmental Law to pay or expend funds by way of fines, judgments, damages, cleanup, remediation or the like in an aggregate amount, the payment of which could reasonably be expected to interfere substantially with normal operations of Undersigned or materially adversely affect the financial condition of Undersigned, (4) notify Bank promptly upon becoming aware of any pending or threatened proceeding, suit, investigation, allegation or inquiry regarding any alleged event or condition that, if resolved unfavorably to Undersigned or any of Undersigned's subsidiaries or affiliates, is likely to cause Undersigned or any of its subsidiaries or affiliates under any Environmental Law to pay or expend funds by way of fines, judgments, damages, cleaning, remediation or the like, and (5) provide at Undersigned's cost, upon request by Bank, certifications, documentation, copies of pleadings and other information regarding the above, all in form and content satisfactory to Bank; (c) conduct each of Undersigned's businesses and operations in material compliance with all federal, state or 1=1 laws, statutes, regulations, rules, ordinances, court or administrative orders or decrees, or private agreements or interpretations, now or hereafter in existence, directly or indirectly relating to or affecting Undersigned's businesses or operations; (d) use the proceeds of the loan evidenced hereby only for business purpose(s) specified to Bank at or prior to the execution hereof; (e) promptly notify Bank in writing of any change in Undersigned's residence or Chief Executive Office; (f) purchase and maintain policies of insurance (including flood insurance) to protect against such risks and casualties, and in such amounts, as shall be required by Bank and/or applicable law, which policies shall (1) be in form and substance satisfactory to Bank, (2) at Bank's option, designate Bank as loss payee and/or as additional insured, and/or contain a leader's loss payable endorsement, and (3) be (or certificates evidencing same shall be) deposited with Bank; (g) (1) maintain and keep proper records and books of account in conformance with generally accepted accounting principles applied on a consistent basis in which full, true and correct entries shall be made of all Undersigned's dealings and business affairs, (2) provide to Bank at Undersigned's cost, upon Bank's request, financial or other information, documentation or certifications (including without limitation annual and periodic balance sheets and income statements, personal financial statements, federal income tax returns, inventory reports (including a description of raw materials, finished goods, and the aging thereof, as applicable), and accounts receivable and payable aging reports), all in form and content satisfactory to Bank, and (3) permit, upon request by Bank, any of the officers, employees or representatives of Bank to visit and inspect any of Undersigned's properties and locations and to examine its books and records and discuss the affairs, finances and accounts of Undersigned with representatives thereof, as often as Bank may request; (h) provide additional collateral at such times and having such value as Bank may request, if Bank shall have reasonable grounds for believing that the value of the collateral securing the indebtedness evidenced by this Note has become insul7"ideat to secure said indebtedness; (i) pay, upon demand by Bank, (1) all costs and fees pertaining to the filing of any financing, continuation or termination statements, mortgages, satisfaction pieces, judgments and any other type of document which Bank deems necessary or desirable to be filed with regard to security interests which secure the indebtedness evidenced hereby, regardless of whether such security interests were granted by Undersigned, and (2) all costs and expenses incurred by Bank in Page 2 of 5 connection with any collateral securing this Note (including without limitation all advances made by Bank for taxes, levies, insurance, repairs to or maintenance of said collateral, appraisal or valuation of said collateral, and determination of flood hazard), regardless of whether such collateral is owned by Undersigned; and (j) pay, upon demand by Bank, all amounts incurred by Bank in connection with any action or proceeding taken or commenced by Bank to enforce or collect this Note, including attorney's fees equal to the lesser of (1) 20% of the outstanding principal balance and interest then due hereunder or $500.00, whichever is greater, or (2) the maximum amount permitted by taw, plus attorney's costs and all costs of legal proceedings. 2. Events of Default The occurrence of any of the following shall constitute an "Event of Default" hereunder. (a) default in payment or performance of any of the indebtedness or obligations evidenced by this Note or any other evidence of liability of Undersigned to Bank; (b) the breach by any Obligor (defined as Undersigned and each surety or guarantor of any of Undersigned's liabilities to Bank as well as any person or entity granting Bank a security interest in property to secure any indebtedness) of any covenant contained in this Note or in any separate security, guarantee or suretyship agreement between Bank and any Obligor, the occurrence of any default hereunder or under the terms of any such agreement, or the discovery by Bank of any false or misleading representation made by any Obligor herein or in any such agreement or in any other information submitted to Bank by any Obligor; (c) with respect to any Obligor: (1) death or incapacity of any individual or general partner, or (2) dissolution of any partnership or corporation; (d) any assignment for the benefit of creditors by any Obligor; (e) insolvency of any Obligor; (f) the filing or commencement of any petition, action, case or proceeding, voluntary or involuntary, under any state or federal law regarding bankruptcy, insolvency, reorganization, receivership or dissolution, including the Bankruptcy Reform Act of 1978, as amended, by or against any Obligor, (g) default under the terms of any lease of or mortgage on the premises where real or personal property securing the indebtedness evidenced by this Note is located; (h) the garnishment, tax assessment, attachment or taking by governmental authority or other creditor of any property of any Obligor which is in Bank's possession or which constitutes security for any indebtedness evidenced hereby; (i) entry of judgment against any Obligor in any court of record; (j) the assessment against any Obligor by the Internal Revenue Service or any other federal, state or local taxing authority of unpaid taxes, or the issuance of a levy or the entering of a lien in connection therewith; (k) change in control of or transfer of any interest in any Obligor (other than an Obligor who is an individual); (I) a determination by Bank, which determination shall be conclusive if made in good faith, that a material adverse change has occurred in the financial or business condition of any Obligor, (m) the maturity of any life insurance policy held as collateral for the indebtedness evidenced by this Note by reason of the death of the insured or otherwise; or (n) default by Undersigned in the payment of any indebtedness of Undersigned or in the performance of any of Undersigned's obligations (other than indebtedness or obligations evidenced by this Note or any other evidence of liability of Undersigned to Bank) and such default shall continue for more than any applicable grace period. 3. Acceleration, Remedies. Upon the occurrence of any Event of Default: (a) all amounts due under this Note, including the unpaid balance of principal and interest hereof, shall become immediately due and payable at the option of Bank, without any demand or notice whatsoever; and (b) Bank may immediately and without demand exercise any of its rights and remedies granted herein, under applicable law, or which it may otherwise have, against Undersigned or otherwise. Notwithstanding any provision to the contrary contained herein, upon the occurrence of an Event of Default as described in Section 2(f) hereof, all amounts due under this Note, including w,.,,.1ut limitation the unpaid balance of principal and interest hereof, shall become immediately due and payable, without any demand, notice or further action by Bank whatsoever, and an action therefor shall immediately accrue. 4. Bank's nights. Undersigned hereby authorizes Bank, and Bank shall have the continuing right, at its sole option and discretion, to: (a) do anything which Undersigned is required but fails to do, and in particular Bank may, if Undersigned fails to do so, obtain and pay any premiums payable on any policy of insurance required to be obtained or maintained hereunder, (b) direct any insurer to make payment of any insurance proceeds, including any returned or unearned premiums, directly to Bank, and apply such moneys to any indebtedness or other amount evidenced hereby in such order or fashion as Bank may elect; (c) pay the proceeds of the ban evidenced by this Note to any or all of the Undersigned individually or jointly, or to such other person(s) as any of the Undersigned may direct, except to the extent otherwise provided in Section 6 hereof, and (d) add any amounts paid or incurred by Bank under Section 1(i), Section 10) or Section 4(a) to the principal amount of the indebtedness evidenced by this Note. 5. Authorization to Borrow. Undersigned hereby represents, warrants, certifies and covenants as follows: (a) If Undersigned is a corporation, that the person(s) signing below hold(s) the office(s) indicated below (and continue to hold such office(s) until Bank has received notice to the contrary in writing from Undersigned), and that the Board of Directors of Undersigned has adopted resolutions providing that: (1) the person(s) executing and delivering this Note on behalf of Undersigned istare authorized (i) to incur indebtedness and obligations on behalf of Undersigned by borrowing or making other financial arrangements with Bank from time to time, upon terms and conditions as they in their sole discretion deem desirable, (it) to make, execute and deliver promissory notes, letter of credit agreements, security agreements, assignments, mortgages and all other documents required by Bank in connection with the incurring of indebtedness or obligations, and (iii) to assign and pledge as collateral security for any such indebtedness or obligations, now or hereafter existing, any real or personal property of Undersigned; (2) the actions of any one or more officers of Undersigned in borrowing money from Bank heretofore for the account of Undersigned, in assigning or pledging any of Undersigned's property for the payment thereof, or in doing any other act in connection therewith are hereby ratified, confirmed and approved; and (3) said resolutions shall have the force of a continuing agreement with Bank, and shall be binding upon Undersigned until a resolution amending them shall have been duty and legally adopted and Bank furnished a certified copy thereof. (b) If Undersigned is a partnership, that (1) Undersigned's name shown below is a trade name of Undersigned's firm used in the conduct of an unincorporated business owned entirely by the persons signing this Note on behalf of said partnership; (2) the partners executing and delivering this Note are authorized (I) to incur indebtedness and obligations on behalf of Undersigned by borrowing from or making other financing or credit accommodations with Bank from time to time, upon such terms and conditions as they in their sole discretion deem desirable, (ii) to make, execute, and deliver promissory notes, letter of credit agreements, security agreements, assignments, mortgages and all other documents required by Bank in connection with the incurring of indebtedness or obligations, and (iii) to assign and pledge as collateral security for any such indebtedness or obligations, now or hereafter existing, any real or personal property of Undersigned; (3) the actions of any one or more partners of Undersigned in borrowing money from Bank heretofore for the account of Undersigned, in assigning or pledging any of Undersigned's property for the payment thereof, or in doing any other act in connection therewith are hereby ratified, confirmed, and approved; (4) notwithstanding any modification or termination of the Page 3 of 5 power of any of the partners to represent said firm, whether by expiration of the partnership agreement, by death or retirement of any partner, or the accession of one or more new partners, or otherwise, and notwithstanding any other notice thereof Bank may receive, this authority shall continue to be binding upon each of the Undersigned individually and upon their legal representatives, and upon Undersigned and its successors, until Bank has received notice in writing to the contrary signed by one of the Undersigned or by Undersigned's duly authorized agent (Receipt of such notice will not relieve any partner of any liability arising from obligations incurred prior to Bank's receipt of such notice.), and (5) nothing herein shall be construed to limit the rights granted to a partner by law or by the partnership agreement, but all rights granted herein shall be in addition to such rights. 6. Detini6'ons; Miscellaneous Provisions. (a) Undersigned waives (except where requested hereby) notice of action taken by Bank; and hereby ratifies and confirms whatever Bank may do. Bank shall be entitled to exercise any right notwithstanding any prior exercise, failure to exercise or delay in exercising any such right. (b) Bank shall retain the lien of any judgment entered on account of the indebtedness evidenced hereby. Undersigned warrants that Undersigned has no defense whatsoever to any action or proceeding that may be brought to enforce or realize on any such judgment. (c) If any provision hereof shall for any reason be held invalid or unenforceable, no other provision shall be affected thereby, and this Note shall be construed as if the invalid or unenforceable provision had never been a part of it. The descriptive headings of this Note are for convenience only and shall not in any way affect the meaning or construction of any provision hereof. (d) The rights and privileges of Bank contained in this Note shall inure to the benefit of its successors and assigns, and the duties of Undersigned shall bind all heirs, personal representatives, successors and assigns. (e) This Note shall in all respects be governed by the laws of the state in which this Note is payable (except to the extent that federal law governs). (f) Undersigned hereby irrevocably appoints Bank and each holder hereof as Undersigned's attorney-in-fact to endorse Undersigned's name to any draft or check which may be payable to Undersigned in order to collect the proceeds of any insurance or any returned or unearned premiums in respect of any policies of insurance required to be maintained hereunder. Undersigned hereby acknowledges that this appointment of Bank and each holder hereof as attorney-in-fact is irrevocable and is coupled with an interest. (g) Undersigned assigns to Bank all moneys which may become payable on any policy of insurance required to be maintained under this Note, including any returned or unearned premiums. (h) "Environmental Law" means any federal, state or local environmental law, statute, regulation, rule, ordinance, court or administrative order or decree, or private agreement or interpretation, now or hereafter in existence, relating to the manufacture, distribution, labeling, use, handling, collection, storage, treatment, disposal or otherwise of Hazardous Substances, or in any way relating to pollution or protection of the environment or public health. (i) "Environmental Permit" means any federal, state or local permit, license or authorization issued under or in connection with any Environmental Law. 0) "Hazardous Substances" means petroleum and petroleum products, radioactive materials, asbestos, radon, lead containing materials, sewage or any materials or substances defined as or included in the definition of "hazardous wastes," "hazardous substances," "hazardous materials,' -toxic substances," "hazardous air pollutants," "toxic pollutants," "pollution," or terms of similar meaning, as those terms are used in any Environmental Law. (k) "Chief Executive Office" means the place from which the main part of the business operations of an entity is managed. (l) "Undersigned" refers individually and collectively to all makers of this Note, including, in the case of any partnership, all general partners of such partnership individually and collectively, whether or not such partners sign below. Undersigned shall each be jointly and severalty bound by the terms hereof, and, with respect to any partnership executing this Note, each general partner shall be bound hereby both in such general partner's individual and partnership capacities. 7. Direction to Pay Proceads.Undersigned hereby authorizes and directs Bank to pay the proceeds of this Note by: crediting Account Number UW - t f.7 -1 V / Ain the name of SRNC? do VA tftntA- tt>n1t? plpaying lllbm R n, SZ t f I dl5 l l9 J 2!/e yS_ the amount of S , R1`parng epit-r/C!9! 2 q -G, / y V L 47 the amount of $ 8. Affidavit ofBusiness Loan. (Ibis Affidavit is not applicable if Undersigned is a corporation.) Undersigned, being duly authorized, depose(s) and say(s) under penalty of perjury that Undersigned: (a) Is/Are engaged in business asW Owner(s), ? General Partner(s) of: (name and nature of business) YOUNG'S FOOD MARKET AND SAY-FMD SUPERMARKET i /s... FOOD MARKET (b) Hereby make(s) application to Bank for a loan, the proceeds of which will be utilized for the purpose( s) of REFINANCE MELLON DEBT OTHER DEBT CONSOLIDATION & EQUIPMENT & INVOICE PURCHASE (c) Exercise(s) actual control over the managerial decisions of the business. (Remainder of page intentionally left blank) Page 4 of 5 9. Confession of Judgment UNDERSIGNED HEREBY HEREOF AND ALL OTHER AMOUNTS DUE EMPOWERS THE PROTHONOTARY OR ANY HEREUNDER, TOGETHER WITH COSTS OF LEGAL ATTORNEY OF ANY COURT OF RECORD TO APPEAR PROCEEDINGS AND AN ATTORNEY'S COMMISSION FOR UNDERSIGNED AND TO CONFESS JUDGMENT EQUAL TO THE LESSER OF (A) 20% OF THE AS OFTEN AS NECESSARY AGAINST UNDERSIGNED OUTSTANDING PRINCIPAL BALANCE AND IN FAVOR OF THE HOLDER HEREOF, REGARDLESS INTEREST THEN DUE HEREUNDER OR $500.00, OF WHETHER ANY EVENT OF DEFAULT HAS WHICHEVER IS GREATER, OR (B) THE MAXIMUM OCCURRED, AT ANY TIME AND AS OF ANY TERM, AMOUNT PERMITTED BY LAW, WITH RELEASE OF FOR THE OUTSTANDING PRINCIPAL BALANCE ALL ERRORS. UNDERSIGNED WAIVES ALL LAWS HEREOF PLUS INTEREST DUE UNDER THE TERMS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION. By signing this Note, Undersigned agrees to all terms of the Note and swears, under penalty of perjury (as set forth in 18 Pa.C.S. §4904, if governed by Pennsylvania law), to the Affidavit of Business Loan (If completed) set forth In Section 8 of this Note. r:. Witness the due execution hereof under seal. Witness: Witness: x 9 Mellon Bank, NA Mellon Bank (DE) National Association CL-4543 PW(10196) LC. 9/96 LD 9,96 0275 P 166-64.3823 1 ct4543(01) 052799,1605 -?A-- 672 B ERVILLE ROAD NEWVILLE, PA 17241 }I? S Individual: x 'K'd c'4 '= -(Seal) 672 LOSERVILLE ROAD NEWVILLE, PA 17241 Page 5 of 5 this ?R? by and from day of YON HWA DWAK (hereinafter called Wortgagor-) to (hereinafter called "Mortgagee") As used herein, the term "M ortgagor" refers individually and collectively to all Mortgagors, and all such terms hereof. Persons shall be jointly and severally bound by the Whereas, SANG_HO KWAKr INDIVIDUALLY AND indebted to Mortgagee in the principal san ofBorrr Le Hundred Ninety Five Thousand and inn Dollars (s aQS o00 00 evidenced by either a note or letter of credit application (the "Note") dated { - 5' -- To Secure the payment of all sums due or which m under said Note and all other obligations, does, become due liabilities, advances, .ud , instruments, is and choses in action, of whatever nature ands, claims, contracts owed to Mortgagee from an Borrower goner t, Present or . future, direct or indirect, absolute or ocontinga ?' present or involuntary, now due or to become due, and any . y voluntary or or renewals thereof in whole or in and all extensions Borrower or Mortgagor drawer, Part. maker, whether , endoendo ° any guarantor, sure he endorser, assignor Obligations (other than hep ttii Obligations evidenced excepting those subject to the disclosure requirements of Federal es the Note) Regulation 4 12 C.F.R. 226.1 et Board secured hereby, hereinafter piled the Obligatiof.ssuch obligations secure Mortgagor's performance under this aMo Mortgage, Mas weft as orMortgagor by b these presen, intending to be legally bound, does grant, and unto all those certain tractssoof land situatged lip 'its successors and assigns, TOWNSHIP of FRANKFORD CUMBE1tLAND County, Pennsylvania and more particular described "A", attached hereto and made apart hereoft°tbit Together INith All And Singular, the buildings and improvements, streets, lanes, alleys, passages, ways, waters, watercourses, rights, fiberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any way appertaining, and the reversions and remainders, rents, issues and profits thereof, To Have And To Hold same unto the said Mortgagee, its successors or assigns, Forever. Pmvided However, that if the Obligation is paid in full and if Borrower delivers to Mortgagee a written notification of its intention not to borrow additional sums from Mortgagee and thereby releases Mortgagee from its obligation advances to Borrower, then the estate hereby EXHIBIT discharged. represents, warrants, covenants and agrees that: First: All furniture and furnishings of every kind and description and all appliances, apparatus and equipment now or hereafter in any building or improvements now or hereafter standing on the premises herreinaboveare [hereto granted (and all substitutions therefor or additions ) ooruideredto be necessary, indispensable and especially adaptednstitute nd and appanropinteriateralto the use and operation of said premises co ag part of said real estate; and all of the same are hereby conveyed, assigned and pledged and shall be deemed and treated for all purposes of this instrument as real estate and not as personal property. This Mortgage is also a security agreement under the Pennsylvania Uniform Commercial Code by virtue of which Mortgagor does hereby grant to Mortgagee a security interest in all personal property now owned and hereinafter acquired, including furnishings, accessories, machinery and equipment (and all substitutions therefor or additions thereto), not comprehended by the Pennsylvania Industrial Plant Doctrine, plus all attachments and accessories thereto, and the proceeds (cash and non cash) of the foregoing. (All items of property granted under this paragraph First, together with the real estate, the buildings and improvements thereon and the rights and interests granted in the Granting Clauses hereinabove set forth, are hereinafter referred to as the "Mortgaged Property".) Second: Mortgagor will keep and perform all of the covenants and agreements contained herein. Third: Without prior written consent of Mortgagee, which consent may be withheld for any reason, Mortgagor shall not transfer or the change legal or equitable title ownership or control of all or part of Mortgaged P roperly , by sale. lease, stock transfer, transfer of partnership: share, operation of law -or in any other manner, whether ifMortga involuntarily. It is further understood and agreed that, as a cond lion of consents tconsent any solejudgment, deems appropriate. condition which Mortgageetin its Fourth: Mortgagor warrants that it owns fee simple title to the Mortgaged Property free and dear of all liens, claims and encumbrances except as otherwise permitted by Mortgagee in writing, and that it has full right and authority to grant this Mortgage and to perform its obligations hereunder. Mortgagor covenants that the Mortgaged property shall continue to be held free and dear of all liens, claims and encumbrances except as otherwise expressly permitted by Mortgagee in writing. - - Fifth: Mortgagor will pay when due all taxes, assessments levies and other charges on or against the mortgaged property Which may attain priority over the lien. of this Mortgage. If Mortgagor fails to do so, Mortgagee at its sole option may elect to pay such taxes, assessments, levies or other charges.. Sixth: Mortgagor shalt keep the Mortgaged property in good repair, excepting only. reasonable wear and tear. Mortgagor will permit Mortgagee's authorized representati Mortgageli ves to enter upon the property at any reasonable time for the purpose of inspecting the condition of the Mortgaged Prope Without the prior written consent of Mortgagee, Mort rty gagor will not per nit removal or demolition of improvements now or hereafter erected on the Mortgaged Property, nor will Mortgagor permit waste of the Mortgaged Property or alteration red on the of improvements now or hereafter Mortgaged property which would adversely affect its ket value as determined by Mortgagee. ti0ok "?5M P&CC AA Page t of 6 Seventh: In addition to the covenants and agreements made elsewhere in this Mortgage, Mortgagor further covenants and agrees with Mortgagee as follows: (a) Except as previously disclosed by Mortgagor to Mortgagee in writing, the Mortgaged Property is and will continue to be free of Hazardous Substances (as hereinafter defined), the presence of which Mortgagor is required to report to any federal, state or local agency or entity or the presence of which is prohibited by any Environmental Law (as hereinafter defined); (b) Except as previously disclosed by Mortgagor to Mortgagee in writing, the ownership, operation or use of the Mortgaged Property by Mortgagor or Mortgagor's tenant(s), as the rase maybe, does not require as of the date hereof, nor in the future will require, the handling, storage, location or discharge of Hazardous Substances in, on or under the Mortgaged Property, the presence of which Mortgagor or Mortgagor's tenant(s) is required to report to any federal, state or local agency or entity or the presence of which is prohibited by any Environmental Law; (c) Mortgagor and Mortgagor's tenant(s), if any, at all times have operated and maintained the Mortgaged Property, and at all times will continue to operate and maintain the Mortgaged Property, in material compliance with an Environmental Laws and Environmental Permits (as hereinafter defimedy (d) Except as previously disclosed by Mortgagor to Mortgagee in writing, no pending or threatened prooeeding, suit, investigation, allegation, or inquiry exists regarding any alleged violation of Environmental Laws or Environmental Permits with respect to the Mortgaged Property or of any alleged obligation to cleanup or remediate any Hazardous Substance in, on or under the Mortgaged Property, and Mortgagor shall notify. Mortgagee within five (5) business days in writing upon becoming aware hereafter of any such proceeding, suit, investigation, allegation, or inquiry, setting forth the details thereof, (e) There does not exist, nor will Mortgagor permit to exist, any event or condition on or with respect to the Mortgaged Property that requires or is likely to require Mortgagor under any Environmental Law to pay or expend funds by way of fines, judgments, damages, cleanup, remediation or the tike; provided, however, that Mortgagor shall notify Mortgagee promptly in writing upon becoming aware hereafter of any such event or condition; and (t) Upon request by Mortgagee, Mortgagor shall provide (at Mortgagor's cost) certifications, documentation, copies of pleadings and other information regarding the abo v, in, in form and content satisfactory to Mortgagee. Eighth: Mortgagee and its agents and representatives shall have the right at any time, (whether or not any event of default in connection with the obligations has occurred, or if any of the obligations is payable on demand, whether or not such demand has been trade,) and at its sole option and discretion, without notice, to enter and visit the Mortgaged Property for the purposes of observing the Mortgaged Property, taking and removing soil or groundwater samples, and conducting tests on any part of the Mortgaged Property, all at the cost of Mortgagor. Mortgagee is under no duty, however, to visit or observe the Mortgaged Property or to conduct tests, and any such acts by Mortgagee shall be solely for the purposes of protecting its security interests and preserving Mortgagee's rights under the Note and other documents executed and delivered in connection with the Note. No site visit, observation, or testing by Mortgagee shall result in a. waiver of any default of Mortgagor or impose any tiabdityon Mortgagee. In no event shall any site visit, observation, or testing by Mortgagee be a representation that Hazardous Substances are or are not present in, on, or under the Mortgaged Property, or that there has been or shall be compliance with any Environmental Law. Neither Mortgagor nor any other party is entitled to rely on any site visit, observation, or testing by Mortgagee, nor on any statements, representations, or any other comments made by Mortgagee to Mortgagor or any other party with respect to any Hazardous Substances or any other adverse condition affecting the Mortgaged Property. Mortgagee owes no duty of care to protect Mortgagor or any other party against, or to inform Mortgagor or any other party of, any Hazardous Substances or any other adverse condition affecting the Mortgaged Property. Mortgagee shag not be obligated to disclose to Mortgagor or any other party any report or findings made as a result of, or in connection with, any site visit, observation, or testing by Mortgagee. Ninth: Mortgagor shall indemnify, defend and hold harmless Mortgagee, its employees, agents, officers and directors from and against any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of any kind whatsoever, including but Dot limited to, attorney fees (including the reasonable estimate of the allocated cost of in-house counsel and staff), all fees of environmental consultants and laboratory costs, arising out of or in any way relating to: (a) the release or threatened release, disposal or existence of any Hazardous Substances, on or affecting the Mortgaged Property; (b) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Substances; (c) any lawsuit brought or threatened, settlement reached or governmental order issued relating to Hazardous Substances with respect to the Mortgaged Property; (d) any violation or alleged violation of laws, permits, licenses, orders, regulations, requirements or demands of government authorities or say policies or requirements of Mortgagee, which are based upon or in any way related to Hazardous Substances; or (e) the breach of any warranty, representation or covenant of Mortgagor contained herein or in any related ban document This indemnity shall survive repayment of any Obligations or any judicial foreclosure, foreclosure by power of sale, deed-in-lieu of foreclosure, or transfer of the Mortgaged Property by Mortgagor or Mortgagee. The liability covered by these indemnity provisions shall include, but not be limited to, losses sustained by Mortgagee and/or any of its successors and assigns for. (a) amounts owing as obligations including diminution in value of the Mortgaged Property, (b) amounts arising out of personal injury or death claims, (c) amounts charged to Mortgagee for any environmental or Hazardous Substances clean up costs and expenses, liens, or other such charges or impositions, (d) payment for reasonable attorneys fees and disbursements, expert witness fees, court costs, environmental tests and design studies, and (e) any other amounts expended by Mortgagee or its successors and assigns in connection with the subject [natter of Paragraphs Seventh, Eighth and Ninth. Tenth: Mortgagor shall keep the Mortgaged Property insured against lass by fire, all other hazards contemplated by the term "extended coverage", and such other risks and hazards as Mortgagee shall require, in such amounts as Mortgagee shall require, but never less than the amount required to pay the Obligations secured hereby. Mortgagor will purchase flood insurance as and to the extent required by the Mortgagee. The insurer or insurers will be chosen by Mortgagor, subject to approval by Mortgagee, and approval shall not be unreasonably withheld. Alt insurance policies shall contain loss payable clauses in favor of Mortgagee and shall be cancelable by the insurer only after prior written notice by the insurer to Mortgagee. Mortgagor shall deliver written evidence of all such insurance to Mortgagee. If Mortgagor fails to obtain and keep in force any required insurance or fails to pay the premiums on such insurance, Mortgagee at its sole wKi552rass .432 Page 2 of 6 optirm may elect to do so. In the event of loss, Mortgagor shall give prompt notice to the insurer and Mortgagee. Mortgagee at its option may elect to make proof or loss if Mortgagor does not do so promptly, and to take any action it deems necessary to preserve Mortgagor's or Mortgagee's rights under any insurance policy. Insurance proceeds shall be applied to restoration or repair of the Mortgaged Property or to reduction of the Obligation, as Mortgagee may determine in its sole discretion. Eleventh: Mortgagor hereby agrees to repay to Mortgagee on demand an sums which mortgagee has elected to pay under Paragraphs Fifth and/or Tenth, and any costs which Mortgagee has incurred in taking actieag permitted by Paragraph E1ghtL, with interest thereon at a per annum rate equal to the Contractual Rate(s) (as that term is defined in the Note), if any, and all such sums, as well as any amounts for which Mortgagor has agreed to indemnify Mortgagee under Paragraph Ninth, shall, together with interest thereon, until ropaid to Mortgagee, be part of tho Obligations and be secured hereby. TwtMh. Mortgagor hereby assigns to Mortgagee all proceeds of any award in connection with any condemnation or other taking of the Mortgaged Property or any part thereof, or payment for conveyance in lieu of condemnation. Thirteenth: If the Mortgaged Property or any portion thereof consists of a unit in a condominium or a planned unit development, Mortgagor shalt perform all of Mortgagor's Obligations under the declaration or covenants creating or governing the condominium or planned unit development, the by-laws, rules and regulations of the condominiums or planned unit development, and related documents. If a condominium or planned unit development rider is executed by Mortgagor and recorded with this Mortgage, the covenants and agreements of such rider shall be incorporated herein as if the rider were a part hereof. _ Fourteenth: In order to further secure Mortgagee in the event of default in the payment of the Obligations secured hereby, or in the performance by Mortgagor of any of the covenants, conditions or agreements contained herein, Mortgagor hereby assigns and transfers to Mortgagee, its successors and assigns, any and an leases ou the Mortgaged Property or any part thereof, now existing or which may hereafter be made at any time, together with any and all rents, issues and profits arising from the Mortgaged Property under said leases or otherwise, without obligation of Mortgagee to perform or discharge any obligation, duty or liability under such teases, but with fun authorization to co0eet an tents under the leases or otherwise and to take possession of and rent the Mortgaged Property. Mortgagor covenants not to accept the payment of any rent paid' more than ninety (90) days in advancer Fifteenth: In the event that (a) Borrower and/or Mortgagor fails to pay any Obligation or any portion thereof when due; or (b) Mortgagor breaches any warranty, covenant or agreement contained herein; or (c) any representation or warranty contained herein or otherwise made by any Mortgagor or Borrower in connection with this Mortgage or any of the Obligation proves to be false or misleading; or (d) there occurs an event of default under any agreement evidencing, securing or otherwise executed and delivered by any Borrower and/or Mortgagor in connection with the Obligation or any portion thereof,.or(e) there occurs an event of default for non-payment under the terms of any other mortgage or other instrument creating a lien on the Mortgaged Property (whether or not such ben is in favor of Mortgagee); or (f) a holder of any lien encumbering the Mortgaged Property or any portion Y"` r thereof (whether such lien is junior or superior to the lien of this Mortgage) commences a foreclosure or any other proceeding to execute on such lien; or (g) any Borrower or Mortgagor makes an assignment for the benefit of its creditors, becomes insolvent, or files or has filed against it any petition, action, case or proceeding, voluntary or involuntary, under any state or federal law regarding bankruptcy, insolvency, reorganization, receivership or dissolution, including the Bankruptcy Reform Act of 1978, as amended; or (h) Mortgagor faits to pay when due, any amount owing by Mortgagor pursuant to the terms hereof, then in addition to exercising any rights which Mortgagee may have under the terms of any agreement securing repayment of, or relating to, any portion of the Obligation, or otherwise ptoviidal by taw, Mortgagee may foreclose upon the Mortgaged PrWrty by apptopdate legal proceedings and sell the Mortgaged Property for the collection of the Obligation, together with costs of suit and attorney's commission equal to the lesser of (a) twenty percent (20%) of the total Obligation or five hundred dollars ($500,00), whichever is the larger amount or (b) the maximum amount permitted by law. Mortgagor hereby foravar waives and releases all errors in the said proceedings, waives stay of ==lien, the right of inquisition and extcasion of time of payment, agrees to condemnation of any property levied upon by virtue of any such execution, and aah-cs all exemptions from levy and sale of any property that now is or hereafter may be exempted by law. Sicteeath: The rights and remedies of Mortgagee as provided herein, or in any other agreement securing repayment of, or relating to, any portion of the Obligations, or otherwise provided by law, shall be cumulative and may be pursued singly, concurrently, or successively In Mortgagee's sole discretion, and may be exercised as often as necessary; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release of the same. Seventeenth: As-used in this Mortgage: (a) "Environmental Lawn means any federal, state or local environmental law, statute, regulation, rule, ordinance,court or administrative order or decree, or private agreement or interpretation, now or hereafter in existence, relating to the use, handling, collection, storage, treatment, disposal or otherwise of Hazardous Substances, or in any way relating to pollution or protection of the environment, including but not limited W. the Clean Air Act, 42 U.S.C. 7401 et sea.; the Comprehensive Environmental Response, Compensation and Liability Ad of 1980, 42 U.S.C. 9601 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seg ; the Hazardous Material Transportation Act, 49 U.S.C. 1801 et sea.; the Federal insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et spa.: the Resource Conservation and Reoovery Act of 1976, 42 U.S.C. 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C, 2601 et M.: all as amended. (b) "Environmental Permit" means any federal, state or local cermit, license or authorization issued- under or in connection with any Environmental Law. (c) "Hazardous Substances" includes petroleum and petroleum products, radioactive materials, asbestos or any materials or substances defined as or included in the definition of "hazardous wastes; "hazardous substances," "hazardous materials," "toxic substances," "hazardous air pollutants," and "toxic pollutants," as those tetras are used in any Environmental Law, including any state or federal law or local ordinance relating to hazardous substances now or hereafter inexistence, and in any regulations promulgated or may be promulgated thereunder. Eighteenth The covenants, conditions and agreements contained herein-shall tbiid'fbe heirs, personal representatives, and successors of Mortgagor, and the rights and privileges contained herein shall inure to the successors or assigns of Mortgagee, am1552rac? 433 Page 3 of 6 Nineteenth: The formal and essential validity hereof shall be governed in all respects by the laws of Pennsylvania. If any provision hereof shall for any reason be held invalid or unenforceable, no other provision shall be affected thereby, and this Mortgage shall be construed as if the invalid or unenforceable provision had never been part of it. Witness, x Twentieth: If any amount advanced under the Note was us*d to purchase the Mortgaged Property, then it is intended that this Mortgage be a Purchase Money Mortgage under the provisions of 42 PA C.S.A §8141. x Seal) Witness, x VILLE ROAD PA 17241 Indiv dual- f/ x RAiLt, OL?A?iE , (Seal) 672uEL0 EFR71VIL?LE ROAD `- IQ WILLE, PA 17241 Mellon Bank, W.A. Mortgagee within named, hereby certifies that its principal place of businemisat Business Banking Loan Center State of K- n n 5 county of H Lqu.p.n t o II J /t 610 On the day of 7 (;q JQ CC '' before me personally came 1 t7n ?? IV A who being duty sworn, did acknowledge that + hQ did sign the foregoing instrument, and that the same is f 1?- free act and deed- In testimony whereof, I have hereunto subscribed my name. a Notaty Public f $ooKi552FAGr A34 Page 4of6 Two Mellon Bank Center Rm. 152-0350 State of County of On the day of before me personally came who being duly sword, did achtowtedge to be the - of a and that - as such being authorized to do so, executed the foregoing instrument on behalf of said for the purpose therein contained. In testimony whereof, I have hereunto subscribed my name. My Commission Fapi,es: Notary ruhtic Commonf of Pennsylvania SS. Q County o n.rm?_2s-4?? -- ?( ? 1 Recorded in the Office of the Recorder of Deeds in and for said County on the (f f day of _• id MortgBook Volume page Witness my hand and the seal of said office the day and year aforesaid. t To Mellon Bank, N.A. t RecodermaUto Mellon Bank, N.A. Business Banking Loan Center P.O. Box 3080 Pittsburgh, PA 15230-3080 Attn: Collateral Unit 0275 02451 CG781(Pe . 3A7) LC 297 ID 297 Page 6 of 6 y 0275 P 166-64.3823 t CL281 (02) 052799,1605 -I°v 52ikc A36 From SANG HO KWAK YON HWA DWAK 'njS F`?Ihibit Arefers to that certain Mortgage dated. from SA HO W K YON WA KWAK as vlortgagot(s) toe11cn Sank N A as Mortgagee: All that certain parcel of land situated in TOWNSHIP OF LTPER FRANYTORD being blown as NORr'cl M0U1'iA2i ROAD////!!PARCEL k43.04-0387-028N and being more fully described in Deed Book 36-0 Page 349 recorded on 10/01/1993 among the land rceotds of CUMBERLAND County, PA j Parcel ID Number: 43.04-0387.02SN 1 c a c .w cz G yC' , N y' .L 2> - :3 o C< :. t-+ Z IV, -? Cn m -o v noxi5b2pr A37 LZ=Rev.(00 LC 396 tD 3N6 ovs P 16616i33Z3 "A:' ' 1 ** TOTAL PAGE.03 ** FORBEARANCE AGREEMENT 19 This forbearance agreement ("Agreement") is made this J?- day of R i 2005 by and between Sang Ho Kwak, individually and d/b/a Say-Ford Supermarket a/k/a Sayford Supermarket (hereinafter, Say-Ford Supermarket and Sayford Supermarket will be referred to as "Say-Ford Supermarket") and d/b/a Young's Food Market ("Mr. Kwak") and Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania (the "Bank"). WITNESSETH: WHEREAS, on or about May 28, 1999, the Bank made a loan to Mr. Kwak and Yon Hwa Kwak ("Mrs. Kwak") (jointly, the "Kwaks') in the amount of $395,000.00 (the "Loan"); WHERE ".S, the Loan is evidenced by a note and security agreement dated May 28, 1999 (the "Note'); WHEREAS, in order to induce partially the Bank to make the Loan, the Kwaks executed and delivered to the Bank a mortgage (the "Mortgage's on their improved real estate situate in the Township of Frankford, Cumberland County, Pennsylvania, as more particularly described in Cumberland County Mortgage Book 1552, pages 431 et seg. (the "Mortgaged Property"); WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually and d/b/a Say-Ford Supermarket granted the Bank a security interest in, among other things, his equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights (collectively, the "Say-Ford Collateral"), as evidenced by a security agreement (the "Say-Ford 646216.3 EXHIBIT 4 Security Agreement") and as perfected by certain UCC-1 financing statements (the "Say-Ford UCC-1 Financing Statements'; WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually and dlbla Young's Food Market granted the Bank a security interest in, among other things, his equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights (collectively, the "Young's Food Market Collateral"), as evidenced by a security agreement (the "Young's Food Market Security Agreement") and as perfected by certain UCC-1 financing statements (the "Young's Food Market UCC-1 Financing Statements"); WHEREAS, Mrs. Kwak is deceased; WHEREAS, Mr. Kwak defaulted under the terms of the Note for failing to make payments of principal and interest when due; WHEREAS, as a result of Mr. Kwak's defaulting under the Note, on or about December 2, 2004, the Bank confessed judgment against Mr. Kwak in the Court of Common Pleas of Cumberland County at No. 04-6040 in the amount of $384,244.24, plus interest and costs (the "Confessed Judgment"); WHEREAS, Mr. Kwak has informed the Bank of his inability to pay the Note, in accordance with its terms, and has requested the Bank to enter into this Agreement relative to this one obligation of the Kwaks to the Bank; WHEREAS, Mr. Kwak and the Bank wish to enter into this Agreement without the Bank's waiving any of its rights and remedies under the subject indebtedness, but in an effort to permit Mr. 646216.3 2 Kwak the opportunity to resolve his financial difficulties and to arrange for the repayment of his obligations to the Bank under the Note; WHEREAS, in consideration of said forbearance, the parties hereto wish to enter into this Agreement outlining the terms of the forbearance. NOW, THEREFORE, intending to be legally bound hereby, and in consideration of the mutual terms and conditions hereinafter set forth, the receipt and adequacy of such consideration being hereby acknowledged, the parties hereto mutually agree as follows: 1. Confirmation of Mr. Kwak's Indebtedness. Mr. Kwak hereby confirms and acknowledges that he is justly and truly indebted to the Bank under the Note, without any setoff or defenses thereto. There is due to the Bank under the Note as of March 23, 2005 the amount of $298,840.40, consisting of principal in the amount of $297,289.47 and interest in the amount of $1,550.93, accruing at the approximate per diem rate of $70.19. It is expressly understood that the foregoing statement of indebtedness does not include accrued interest from March 14, 2005, attorneys' fees and costs, or other expenses which may be incurred by the Bank if the Bank finds it necessary to exercise its rights or remedies under the Loan Documents (as hereinafter defined). It is further expressly understood that the aforesaid amounts shall be included in the indebtedness due to the Bank from Mr. Kwak. 2. Confirmation of Loan Documents. Mr. Kwak hereby acknowledges and agrees that the information contained in the above-referenced recitals is true, accurate and complete, and further ratifies, confirms and acknowledges that all loan documents (the Note, the Mortgage, the Say-Ford Security Agreement, the Young's Food Market Security Agreement, the Say-Ford Financing 646216.3 3 Statements, the Young's Food Market Financing Statements, and any and all addenda or supplements thereto, and other related documents executed by the Kwaks, or either of them, and delivered to the Bank (hereinafter collectively referred to as the "Loan Documents")) concerning the indebtedness as referenced hereinabove and the Confessed Judgment are valid, binding and in full force and effect as of the date hereof, and that the Kwaks have no defense, setoff, counterclaim or challenge against the payment of any and all sums owing under the terms of the Loan Documents or the enforcement or validity of any of the terms thereof. 3. Re-affirmation of Certain Collateral. Mr. Kwak hereby confirms and re-affirms that the equipment listed on Schedule A hereto is part of the Say-Ford Collateral and/or the Young's Food Market Collateral and is subject to a perfected, first lien security interest in favor of the Bank. Mr. Kwak further agrees not to move any or all of the equipment set forth on Schedule A from the location set forth on Schedule A without first obtaining the express, written consent of the Bank, which consent may not be unreasonably withheld. Mr. Kwak also agrees not to sell any of the equipment set forth on Schedule A without first obtaining the express, written consent of the Bank, which consent may be withheld for any reason. 4. Payment of Indebtedness. On or about December 29, 2004, Mr. Kwak paid the Bank $30,000.00, for all past due payments, late charges, attorneys' fees and costs due under the Note and in consideration for the Bank's agreeing to enter into this Agreement. On or before April 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before May 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before June 1, 2005, Mr, Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before 646216.3 4 July 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before August 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before September 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before October 1, 2005, Mr. Kwak shall pay the Bank a balloon payment of all principal, interest, late charges, attorneys' fees and costs, if any, then due under the Note. Forbearance Term. The Bank hereby agrees to forbear from exercising the rights and remedies available to it as a result of the defaults which have occurred prior to the date hereof until the earlier of October 1, 2005 or an Event of Default (as hereinafter defined). 6. Interest. Interest will continue to accrue on the outstanding principal balance at the contractual rate set forth in the Note. 7. Financial Statements. During the term of this Agreement, Mr. Kwak shall, upon request, provide any and all financial information the Bank may so request from time to time, including, but not limited to, a copy of his most recently filed federal income tax returns and current fully-executed financial statements. Events of Default The occurrence of any one or more of the following is an Event of Default hereunder: a) Mr. Kwak fails to observe or perform each and every provision of this Agreement, the Note, and any other loan documentation relative to the obligations of the Kwaks, including, but not limited to, the failure to make the payments as provided herein; b) Mr. Kwak files a petition under any provision of federal or state ptcy, insolvency, moratorium or similar law, or such petition is filed against him; 646216.3 C) Mr. Kwak misrepresents any warranty or representation given hereunder or misrepresents any material fact hereunder. 9. Forbearance by Barak. In consideration of this Agreement, the Bank hereby agrees that during the term of forbearance it shall take no action to collect its collateral or to enforce the within obligations or the underlying obligations so as to provide Mr. Kwak with an opportunity to resolve his financial difficulties as set forth herein. Said forbearance is conditioned upon Mr. Kwak's complying with this Agreement. 10. Binding Effect_ This Agreement shall be binding upon the parties hereto, their executors, administrators, heirs, successors and assigns. Mr. Kwak shall not have the right to assign his rights hereunder without prior written consent of the Bank. 11. Inspections and Appraisals. Mr. Kwak hereby grants to the Bank the right at any time and from time to time to conduct inspections and/or appraisals of any or all of its collateral, including the Mortgaged Property, the Say-Ford Collateral and the Young's Food Market Collateral. 12. Governing Law and Venue. This Agreement shall be governed, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. Any and all disputes hereunder shall be commenced and resolved in any of the courts of common pleas of Pennsylvania. 13. No Waiver or Novation. Nothing herein contained and no actions taken by the Bank herein or in connection herewith shall constitute or be deemed to be a waiver or release of any default by Mr. Kwak of his obligations, or of the security interests, rights, remedies or privileges afforded to the Bank thereunder. Nothing herein shall constitute a waiver by the Bank of Mr. non-compliance with the terms of his obligations, nor shall anything contained herein constitute an 646216.3 6 agreement by the Bank to enter into any further agreements with Mr. Kwak. Neither this Agreement nor any other documents to be executed in connection herewith is in any way intended to constitute a novation of or a waiver of any of the underlying obligations. The Note and any and all other agreements in writing between Mr. Kwak and the Bank shall remain in full force and effect. In the event of any inconsistency between the terns of this Agreement and the terms of the Loan Documents, the terms of this Agreement shall prevail. All other terms, conditions and covenants set forth in the Loan Documents, except as expressly modified herein, remain unchanged and in full force and effect. 14. Extension. Nothing herein shall be construed as a representation or warranty by the Bank that the forbearance term granted herein shall be extended or renewed and the parties hereto confirm and acknowledge that no further extensions or renewals have been promised. 15. Time. Time is of the essence of each provision of this Agreement. 16. Construction. The parties acknowledge that each party and each party's counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any amendments or schedules hereto. 17. Release. Mr. Kwak hereby waives and releases the Bank, its officers, employees, agents, representatives, attorneys and directors and their executors, administrators, heirs, successors and assigns from any and all claims, causes of action, set-offs, recoupments, actions, debts, damages, liabilities and expenses which they may have against the Bank in connection with the Note, any 646216.3 action or inaction of the Bank or in any way related to the Loan Documents an_ this Agreement. 18. Voluntary Agreement. Mr. Kwak represents and warrants to tl' represented by legal counsel of his choice in regard to the transaction provided and that such counsel has explained to him the significance of the terms, and t7 effect of this Agreement; (ii) he is fully aware and clearly understand all of the contained in this Agreement; (iii) he has voluntarily, with full knowledge and - distress of any kind, entered into this Agreement and the documents executed Agreement; (iv) he is not relying on any representations either written or oral, made to them by the Bank other than as set forth in this Agreement; and (v) th- received by Mr. Kwak to enter into this Agreement and the arrangement conte= Agreement is fair, reasonable, equitable, actual and adequate. 19. Modification. This Agreement may not be modified except by the parties hereto with the same formality as this Agreement. 20. Gender and Number. Unless otherwise specified, the masculin feminine and the neuter and vice versa. The singular-shall include the-plural- a- 21. Additional Instruments. Each party shall, at the request of the acknowledge and deliver whatever additional instruments may be required in c intent of this Agreement. 22. Invalidity. In the event any one or more of the provisions contz Agreement shall for any reason be held to be invalid, illegal or unenforceable a 646216.3 action or inaction of the Bank or in any way related to the Loan Documents and/or the negotiation of this Agreement. 18. Voluntary Agreement. Mr. Kwak represents and warrants to the Bank that (i) he is represented by legal counsel of his choice in regard to the transaction provided for in this Agreement and that such counsel has explained to him the significance of the terns, and the full meaning and effect of this Agreement; (ii) he is fully aware and clearly understand all of the terms and provisions contained in this Agreement; (iii) he has voluntarily, with full knowledge and without coercion or distress of any kind, entered into this Agreement and the documents executed in connection with this Agreement; (iv) he is not relying on any representations either written or oral, express or implied, made to them by the Bank other than as set forth in this Agreement; and (v) the consideration received by Mr. Kwak to enter into this Agreement and the arrangement contemplated by this Agreement is fair, reasonable, equitable, actual and adequate. 19. Modification. This Agreement may not be modified except by a writing executed by the parties hereto with the same formality as this Agreement. 20. Gender and Number. Unless otherwise specified, the masculine shall include the feminine and the neuter and vice versa. The singular-shall include, the-plural, and vice versa. 21. Additional Instruments. Each party shall, at the request of the other party, execute, acknowledge and deliver whatever additional instruments may be required in order to accomplish the intent of this Agreement. 22. Invalidity. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such 646216.3 invalidity, illegality or unenforceability shall not affect any of the provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 23. Counterparts. This Agreement may be executed in identical counterparts which together shall constitute a single agreement. 24. Complete Agreement. This is the complete agreement and there is no written or oral understanding or agreement directly or indirectly connected with this Agreement that is not specifically incorporated herein by reference. 25. Waiver of Jury Trial. Mr. Kwak and the Bank irrevocably, as an independent covenant, waive jury trial and the rights thereto in any action or proceeding between Mr. Kwak and the Bank. IN WITNESS WHEREOF, Mr. Kwak and the Bank, intending to be legally bound hereby, have executed this Agreement the day and year first above written. WITNESS: Sang vak ATTEST: MELLON BANK, N.A., now by assignment, I CITIZENS B OF PENNSYLVANIA BY: 646216.3 COMMONWEALTH OF PENNSYLVANIA COUNTY OF LUZERNE SS: ONTHIS,the 1?`dayof f92005, before me, the undersigned officer, ski ?? r ? personally appeared Joseph E. Sweeney, who acknowledged himself to be Assistant Vice President of Citizens Bank of Pennsylvania, and that he, being authorized to do so, executed the foregoing instrument for the purposes herein contained by signing the name of Citizens Bank of Pennsylvania, by himself, as Assistant Vice President. IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal. COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jane A Muscavage, NotaryPubic ?""? City Of Wilkes4lame, Luze Canty N ,.RY LIC My Commission Expires Nov. 3, 2007 Member, Pennsylvania Association Of Notaries COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS: ON THIS, the 1+h day of Apr 1T 2005, before me, the undersigned officer, personally appeared Sang Ho Kwak, known to be (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purpose therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal. NOTARY PUBLI COMMONWEALTH OF PENNSYLVANIA 646216.3 Notarial Seal Rhonda HefteKrx,7er, Notary Pubic City Of Harrisburg, Dauphin Cotatty My Commission EWres Apr. 22, 2006 Member, Pennsylvania Association Of Notarles SCHEDULE A Sayford Market Secured Equipment Sharp ER-A330 Cash Register Casio PCRT 2000 Cash Register Panasonic KX-FP121 Fax Machine Bunn Coffee Maker VPS Series Power Cooler 2 Door Beverage Air Deli Cooler True Deli Bar Refrigerator Hussman Meat Cooler Displays (3) Tafco Pre Fab Walk In Cooler 12 Door Tafco Pre Fab Walk In Freezer 12 Door TEL SL 9000 Mega Refrigerator Unit Pre Fab 10 x 12 Walk In Cooler Hobart Meat Tenderizer Bird Meat Cutter Heat Sealer 20 Inch Berkel Meat Slicer 3340 Berkel Meat Slicer 919/1 Eastern Mfg. Checkout Computer System (1) Master Computer (2) Check Out Stations Whirlpool Range Young's Market (Newville PA) Secured Equipment Powers Sliding Cooler with butcher top cover, Ser. No. B947-556 Migdi Deli Case with Bottom Refrigerator, Ser. No. 894004 21/2 x 3' Tappan Chest Freezer Sturdi-Bilt up Draft and Exhaust Fan 30" Comstock-Castle Stove, Ser. No. 7MM420 Castle Pizza 2-Shelf Oven, Ser. No. 6MM128 Westy Cash Register Sanyo, Ser. No. 63404445 Slicer Model 919-1, Ser. No. 9365-1151-09830 /J K:: Z -? SAN HO K AK Sworn to and subscribed before me this V, day of A p(- s ( 2005. COMMONWEALTH OF PENNSYLVANIA Ntaatial Seal Rhonda HeffelfinW, Notary Public City of Hartisburg, Dm pNn County My Commission Expires Apr. 22, 2008 Member, Pennsylvania Association Of Notaries AFFIDAVIT OF COMPLIANCE WITH ACT 911ACT 6 COMMONWEALTH OF PENNSYLVANIA COUNTY OF LUZERNE SS. I, Joseph E. Sweeney, Assistant Vice President for the plaintiff, being duly sworn according to law, depose and say as follows: 1. On February 16, 2005, counsel for the plaintiff mailed a Combined Act 91 /Act 6 Notice to the defendants and to the current occupant/tenant by first class mail and certified mail, return receipt requested. 2. To the best of my knowledge, information and belief, neither I, nor any representative of the plaintiff, has been contacted by defendants, or by any consumer counseling agency representing the defendants. 3. To the best of my knowledge, information and belief, neither I, nor any representative of the plaintiff, has been notified by defendants, a consumer counseling agency, or the Pennsylvania Housing Finance Agency, that any applications for assistance have been filed by E. Sworn to and subscribed before me this 4 day of 111 - cIS7- 2005. otary P blic COMMONWEALTH OF PENNSYLVANIA Notarial seal Jane A. Muscavage, Notary public City Of Wilkes-Barre, Luasrne County My Cornmission Expires Nov. 3, 2007 Member, Pennsglvenia Associahw Of Notaries 677698.1 AFFIDAVIT OF NON-MILITARY SERVICE OF DEFENDANTS COMMONWEALTH OF PENNSYLVANIA: SS COUNTY OF LUZERNE I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, being duly sworn according to law, depose and say that I did, upon the request of Citizens Bank of Pennsylvania, investigate the status of Sang Her Kwak and Yon Hwa Kwak with regard to the Soldiers' and Sailors' Civil Relief Act of 1940. To the best of my knowledge or information and belief, Sang Ho Kwak and Yon Hwa Kwak are not now, or were they, within a period of the last three (3) months, in the military or naval service of the United States within the purview of the Soldiers' and Sailors' Relief Act of 1940. E. Sworn to and subscribed before me this fLrc e day of f 1 yC? tS % 2005 otary Public COMMONWEALTH OF PENNSYLVANIA Notarial seal Jane A. Muscavage, Notary Public City Of WlIkes-Bane, Luzeme County MY Commission E)Ores Nov. 3, 2007 Member FennsYlvania ASSOCiaGon Of Notar{ea 677694.1 AFFIDAVIT OF LAST KNOWN ADDRESS COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF LUZERNE I, Joseph E. Sweeney, Assistant Vice President, of Citizens Bank of Pennsylvania, being duly sworn according to law, depose and say that the last known address of the above-captioned defendant is as follows: Sang Ho Kwak 2208 Chatham Way Harrisburg, PA 17110 Sworn to and subscribed before me this & day of fid G is % 2005. of Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jane A Muscavage, Notary Pudic City Of Wilkes-Barre, LuYane County My Commission Expires Nov. 3.2007 Member, Pennsvb,a?le Asst J3nn Of Notaries 677683.1 Yon Hwa Kwak, Deceased 2208 Chatham Way CERTIFICATION OF COMMERCIAL TRANSACTION I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, depose and say, subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities, that the underlying transaction relative to this complaint in confession of judgment is a commercial transaction to the best of my knowledge or information and belief. E. Sweeney, Assistant Vice President 677682.1 VERIFICATION I, Joseph E. Sweeney, hereby certify that I am an Assistant Vice President of Citizens Bank of Pennsylvania I have the authority to make this verification on its behalf. I hereby verify that the factual averments contained in the foregoing complaint are true upon my personal knowledge or information and belief. I understand that this verification is mad-- subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. Sweeney 677681.1 /fj1 7II -'1 U/ r' 'T ?} T? \ j I otl? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-04455 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MELLON BANK N A VS KWAK SANG HO ET AL R. Thomas Kli , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: KWAK SANG HO but was unable to locate Him deputized the sheriff of DAUPHIN in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On September 13th , 2005 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin Co Postage So 18.00 9.00 10.00 i R. 36.00 1.48 74.48 09/13/2005 HOURIGAN KLUGER QUINN Sworn and subscribed to before me this -?L day of JL GS A.D. i r thon tart' f of Cumberland County SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-04455 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MELLON BANK N A VS KWAK SANG HO ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit; KWAK SANG HO D/B/A YOUNGS FOOD MARKET & SAY-FORD SUPERMARKET but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On September 13th , 2005 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge So aryP,?ers : 6.00 00 10.00 00 .00 16.00 09/13/2005 HOURIGAN KLUGER QUINN Sworn and subscribed to before me this day of r )L ? . D . a P onota b4nas Kline ff of Cumberland County In The Court of Common Pleas of Cumberland County, Pennsylvania Mellon Bank NA v5. Sang Ho Kwak et al SERVE: Sang Ho Kwak No. 05-4455 civil Now, August 31, 2005 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. 7 Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to copy of the original the contents thereof. So answers, Sheriff of Sworn and subscribed before me this ` day of , 20 20 , at o'clock M. served the COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA In The Court of Common Plus of Cumberland County, Pennsylvania Mellon Bank NA vs. Sang Ho Kwak et al SERVE: Sang Ho Kwak d/b/a Young's Food Market and No, 05-4455 civil Say-Ford Supermarket Now, August 31, 2005 hereby deputize the Sheriff of I, SHERIFF OF CUMBERLAND COUNTY, PA, do Dauphin deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to _ a and made known to copy of the original the contents thereof. So answers, Sheriff of Sworn and subscribed before me this _ day of 20 20 , at County to execute this Writ, this o'clock M. served the COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA mma Of'4P ,* extf f Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph:(717)780-6590 fax:(717)255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania MELLON BANK NA N/B/A CITIZENS BANK OF vs County of Dauphin • KWAK SANG HO Sheriff's Return No. 1553-T - - -2005 OTHER COUNTY NO. 05-4455 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for KWAK SANG HO the DEFENDANT named in the within COMPLAINT IN MORTGAGE FORECLOSURE and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, September 2, 2005 PER CURRENT RESIDENT, AT 2208 CHATHAM WAY, HBG, STATED HE PURCHASED THE PROPERTY FROM DEF, SANG HO KWAK IN THE SPRING, 2005. NEW ADDRESS UNKNOWN. Sworn and subscribed to )efore me this 7TH day of SEPTEMBER, 2005 NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept 1, 2006 So Answers, ' r? e;l*? Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs:$36.00 PD 09/01/2005 RCPT NO 210185 Office of e S4Pxr ff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fm: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania MELLON BANK NA N/B/A CITIZENS BANK OF vs County of Dauphin KWAK SANG HO Sheriff's Return No. 1553-T - - -2005 OTHER COUNTY NO. 05-4455 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for KWAK SANG HO D/B/A YOUNGS FOOD MARKET & SAY-FORD SUPERMARKET the DEFENDANT named in the within COMPLAINT IN MORTGAGE FORECLOSURE and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, September 2, 2005 PER CURRENT RESIDENT AT, 2208 CHATHAM WAY, HBG STATED THAT THE PROPERTY WAS BOUGHT FROM THE DEFIN THE SPRING OF 2005, NEW ADDRESS UNKNOWN. Sworn and subscribed to tefore me this 7TH day of SEPTEMBER, 2005 NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept 1, 2006 So Answers, k ,t? Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs:$36.00 PD 09/01/2005 RCPT NO 210185 HOURIGAN, KLUGER & QUINN A PROFESSIONAL CORPORATION BY: James T. Shoemaker, Esquire ATTORNEY FOR PLAINTIFF IDENTIFICATION NO. 63871 LAW OFFICES 600 THIRD AVENUE KINGSTON, PA 18704 (570) 287-3000 MELLON BANK, N.A., now by assignment CITIZENS BANK OF PENNSYLVANIA 8 West Market St. Wilkes-Barre, PA 18701, vs. Plaintiff SANG HO KWAK, individually and d/b/a Young's Food Market and Say-Ford Supermarket and YON HWA KWAK 2208 Chatham Way Harrisburg, PA 17110, Defendants NOTICE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION -- LAW MORTGAGE FORECLOSURE NO. S - 4104,5 c (*0 cl. ,?JL-+ YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment maybe 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. 677651.1 aro- to ..; p,. In Ti, ,j y hdlg, Pa. a j a1:u JT... Itih 0% iq;;y{=tt'di? 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. COURT ADMINISTRATOR Cumberland County Court House Carlisle, PA 17013 (717) 249-1133 -or- PENNSYLVANIA LAWYERS REFERRAL SERVICE P.O. Box 1086, 100 South Street Harrisburg, PA 17108 (Pennsylvania residents phone: 1-800-692-7375; out-of-state residents phone: 1-717-238-6715) HOURIGAN, KLUGER & QUINN, P.C. BY: James T. Shoemaker, Esquire Counsel for the plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania 677651-1 HOURIGAN, KLUGER & QUINN A PROFESSIONAL CORPORATION BY: James T. Shoemaker, Esquire ATTORNEY FOR PLAINTIFF IDENTIFICATION NO. 63871 LAW OFFICES 600 THIRD AVENUE KINGSTON, PA 18704 (570) 287-3000 MELLON BANK, N.A., now by assignment IN THE COURT OF COMMON PLEAS CITIZENS BANK OF PENNSYLVANIA OF CUMBERLAND COUNTY 8 West Market St Wilkes-Barre, PA 18701, vs. Plaintiff CIVIL ACTION -- LAW SANG HO KWAK, individually and d/b/a Young's Food Market and Say-Ford Supermarket and YON HWA KWAK 2208 Chatham Way Harrisburg, PA 17110, MORTGAGE FORECLOSURE Defendants NO. COMPLAINT The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania (the "Bank"), by and through its counsel, Hourigan, Kluger & Quinn, P.C., complains of the defendants, Sang Ho Kwak, individually and d/b/a Young's Food Market and Say-Ford Supermarket ("Mr. Kwak") and Yon Hwa Kwak ("Mrs. Kwak") 0 ointly, the "Kwaks"), as follows: The Bank is a state chartered bank conducting business in the Commonwealth of Pennsylvania, having a principal office located at 8 West Market Street, Wilkes-Barre, PA 18701. 17110. Mr. Kwak is an adult individual with a last known address of 2208 Chatham Way, Harrisburg, PA 3. Upon information and belief, Mrs. Kwak is deceased. 677653.1 4. On or about May 28, 1999, the Kwaks were the owners in fee of improved real estate situate in the Township of Frankford, Cumberland County, Pennsylvania, as more particularly described in Cumberland County Mortgage Book 1552, pages 431 et seg. (the "Mortgaged Property"). (A true and correct copy of Cumberl:.:d County Mortgage Book 1552, pages 431 et seq. is attached hereto, incorporated herein and marked as Exhibit 5. On or about May 28, 1999, the Bank made a loan to the Kwaks in the amount of $395.Cf 0.00. 6. The aforesaid loan is evidenced by a note and security agreement dated May 28, 1999 (tits. "Note"). (A true and correct copy of the Note is attached hereto, incorporated herein and marked as Exhibit "B * ! In order to induce partially the Bank to make aforesaid loan, the Kwaks executed and vered to the Bank a mortgage (the "Mortgage") on the Mortgaged Property, obligating them to repay the entire pr1=--, ipal sum plus interest. (A true and correct copy of the Mortgage is attached hereto, incorporated herein and marks? Exhibit 11C.11) 8. As a result of Mr. Kwak's default under the terms of the Note, the Bank and Mr. Kwak ep:,gyred into a forbearance agreement dated April 12, 2005 (the "Forbearance Agreement") upon the terms and coneirions more particularly set forth therein. (A true and correct copy of the Forbearance Agreement is attached hereto z, ; Exhibit "D" and incorporated herein by reference.) 9. A default occurred under the Mortgage and Forbearance Agreement in that Mr. Kwak fsr,'?ed to make payments of principal and interest due under the Mortgage and Forbearance Agreement. 10. The Kwaks are the real owners of the Mortgaged Property. 11. There has been no assignment of the Mortgage except as stated above. 12. The amount due the Bank by the Kwaks, as of August 8, 2005, was $296,891.95 consisting of principal in the amount of $291,949.92, accrued interest in the amount of $4,706.61, and late charges in the amount of $235.42, exclusive of attorneys' fees and costs. 677653.1 WHEREFORE, the Bank demands judgment in mortgage foreclosure against the Kwaks in the amount of $296,89E95, plus accrued interest from August 8, 2005, through to the date of distribution of Sheriff's sale, accruing at the per diem rate of $68.93, attorneys' fees in the amount of 20% of the total outstanding indebtedness and costs until paid:. Respectfully submitted, HOURIGAN, KLUGER & QUINN, P.C. By./- James T. Shoemaker, Esquire I.D. No. 63871 Counsel for the plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania 677653.1 lh[s r =tnt A refers to that certain Mortgage dated. from SANG Ho lit4AK YOU WA XWAIC as Mortgagor(s) to _btellon sank N.R. as Mortgagee: Adl that certain parcel of land situated in TOWNSHIP OF LIPPER FRANKFORD being known as NORTH MOAviAU ROAD/////!PARCEL 943.04-0307 028N and being more fully described in Deed Book 36-0 Page 349 recorded on 10101/1993 among the land records of CLQBERLAND County, PA i Parcel ED Number: <3-04-0387.02SNi c? to ? w ca -? 3 c i :. m z r -; o co rn ? v 800X155wPAGE 437 ** TOTAL PRGE.03 ** $ 395,000.00 Promise To Pay. FOR VALUE RECEIVED,and intending to be legally bound, Undersigned, as defined below, promises to pay to: Mellon Bank. N.A. ("Bank") or its order at Harrisburg, Pennsylvania the sum of Three Hundred Ninety Five Thousand and 00/100 Dollars ($ 395,000.00 !with interest on the outstanding balance from the date of this Promissory Note ("Note") at the rate(s) ("Contractual Rate(s)") and in accordance with the repayment schedule specified below. Contractual Rate(s); Repayment Schedules. ? Interest at a rate per annum :which is % above Bank's Prime Rate, such rate to change from time to time as of the effective date of each announced change in such Prime Rate, shall be paid when principal payments are due. Principal shall be paid in consecutive monthly installments of $ each, commencing on and continuing thereafter on the day of each month with the balance of the indebtedneif npt sooner paid, due and payable on ? Interest at a rate per annum which is % above the CD Rate, such rate to change from time to time as of the effective date of each change in or resetting of the CD Rate, shall be paid when principal payments are due. Principal shall be paid in consecutive monthly installments of $ each, commencing on and continuing thereafter on the day of each month with the balance of the indebtedness, if not sooner paid, due and payable on ? The principal balance hereof, together with all accrued and unpaid interest, shall be paid on and interest at a rate per annum which is % above Bank's Prime Rate, such rate to change from time to time as of the effective date of each announced change in such Prime Rate, shall be paid on the day of each) month commencing on ? The principal balance he*f, together with all accrued and unpaid interest, shall be psi on and interest at a rate per annum which ' % above the CD Rate, such rate to change from a to time as of the effective date of each change in or resettir)g of the CD Rate, shall be paid on the day of each month commencing on ?In no event shall the rate charged on this Note exceed % per annum. ? The principal balance heeof, together with all accrued and unpaid interest, shall be psi l on and interest at the rate of % r annum shall be paid on the day of each m nth commencing on JIntteerest shall be calculated at the n sn % per annum. Principal and interest shall i 179 consecutive monthly installmt $ 3 . q9-4-6- each, commencing on 07/01/1999 and continuing thereafter on the 1ST day of each month with the balance of the indebtedness, if not sooner paid, due and payable on 06/01/2014 . During any period that the Contractual Rate(s) is reduced by 0.25% per annum, as described elsewhere in this Note, installments of principal and interest shall instead be in the amount of $ 3,864.70 each. If the reduction in the Contractual Rate(s) is no longer in effect, the amount of installments of principal and interest shall return to and be the same as the amount of such installments prior to the reduction in the Contractual Rate(s). Undersigned shall pay Bank concurrently with the execution and delivery hereof, or Undersigned previously has paid Bank, an origination fee of $ 3,950.00 , to compensate Bank for its underwriting, origination and administration of the loan evidenced by this Note. This fee shall be deemed fully earned by Bank on the date hereof, shall not be refunded, and is in addition to any other fees, costs or expenses which may be due and payable hereunder. Unless Undersigned has authorized Bank to take payments out of a Mellon Checking Account, as set forth below, Undersigned will mail or deliver to Bank the amount billed by Bank each month. Undersigned will mail or deliver the payments so that Bank receives all payments no later than the due date shown on each bill. ? Undersigned authorizes Bank to take all payments of principal and/or interest and/or other amounts due under this Note out of Undersigned's Mellon Checking Account Number titled in the name(s) of on or after the day of each month. Undersigned will keep a sufficient balance in this account to cover the full amounts of all required payments. At its option, Bank may terminate Undersigned's ability to use this service. This authorization shall remain in effect until revoked by Undersigned in writing or until the loan evidenced by this Note is paid in full or until Bank has terminated Undersigned's ability to use this service, as the case may be. Prior to maturity, while this authorization is in effect and provided that Undersigned keeps a sufficient balance in this account to cover the full amounts of all required payments, the Contractual Rate(s) shall be reduced by 0.25% per annum. This authorization will be effective even though this Note and the account may be titled in different versions of Undersigned's name. If the original principal amount of this Note is in excess of $10,000.00, or if Undersigned is a corporation, interest shall be calculated on the basis of a 360-day year and actual days elapsed. If the original principal amount of this Note is $10,000.00, or less, and Undersigned is not a corporation, interest shall be calculated on the basis of a 365-day year or 366-day year, as the case may be, and actual days elapsed. "Prime Rate" shall mean the interest rate per annum announced from time to time by Bank as its Prime Rate. The Prime Rate may be greater or less than other interest rates charged by Bank to other borrowers and is not solely based or dependent upon the interest rate which Bank may charge any particular borrower or class of borrowers. EXHIBIT If a single certificate of deposit is held by Bank as collateral security ebtedness evidenced by this Note, as more fully he Assignment of Deposit Account expressly referring "CD Rate" shall mean the interest rate paid by Bank sate e of deposit (the "Certificate"), said CD Rate to be Page 1 of 5 reset by Bank at each renewal of the Certificate. If more than one certificate of deposit is held by Bank as collateral security for the indebtedness evidenced by this Note, as more fully described in the Assignment(s) of Deposit Account expressly referring to this Note, "CD Rate" shalt mean the highest of the interest rates paid by Bank on such certificates of deposit (the "Certificates"), said CD Rate to be reset at each renewal of each Certificate. Late Charge. If any payment (including without limitation any regularly scheduled payment, balloon payment or final payment) is not paid within 15 calendar days after it is due, Undersigned will pay a late charge of the greater of $25.00, or three percent (3%) of the unpaid portion of the scheduled payment due (regardless of whether the payment due consists of principal and interest, principal only or interest only). Such late charge shall be in addition to any increase made to the Contractual Rate(s) applicable to the outstanding balance hereof as a result of maturity of this Note or otherwise, as well as in addition to any other applicable fees, charges and costs. Default Rate(s); Post-Maturity Rate(s). Upon the occurrence of any Event of Default (as defined in this Note), at Bank's option, interest shall accrue at a rate equal to two percent (2%) per annum above the Contractual Rate(s) until the earlier of the date that such Event of Default has been cured or until and including the date of maturity hereof. After maturity, whether by acceleration or otherwise, interest shall accrue at a rate equal to two percent (2%) per annum above the Contractual Rate(s) until all sums due hereunder are paid. Interest shall continue to accrue after the entry of judgment (try confession or otherwise) at the Contractual Rate(s) until all sums due hereunder and/or under the judgment are paid, except that after maturity or, at Bank's option, upon the occurrence of any Event of Default, interest shall accrue at a rate equal to two percent (2%) per annum above the Contractual Rate(s). Books and Records; Time of Essence. So tong as Bank is the holder hereof, Bank's books and records shall be presumed, except in the case of manifest error, to accurately evidence at all times all amounts outstanding under this Note and the date and amount of each advance and payment made pursuant hereto. The prompt and faithful performance of all of Undersigned's obligations hereunder, including without limitation time of payment, is of the essence of this Note. Security Interest, Setoff and Assignments. To secure all amounts at any time owing or payable under this Note and Undersigned's obligations hereunder, as well as to secure all costs and expenses incurred by Bank in the collection or enforcement of this Note or the protection of any collateral securing this Note (including without limitation all advances made by Bank for taxes, levies, insurance, filing fees, and repairs to or maintenance of said collateral), Undersigned hereby grants to Bank a security interest in, lien upon, and right of setoff against, all deposit accounts, credits, securities, moneys, or other property of Undersigned which may at any time be in the possession of, delivered to, or owed by Bank, including any proceeds or returned or unearned premiums of insurance, and the proceeds of all the foregoing property. Other property, real or personal, may secure this Note, as set forth in other documents and agreements. Undersigned acknowledges and agrees that Undersigned shall renew, or cause to be renewed, the Certificate(s), if any, until the indebtedness evidenced by this Note has been paid in full. Undersigned further agrees that Undersigned will execute, or will cause to be executed, upon demand by Bank any financing statements or other documents, including, without limitation, additional Assignments of Deposit Account, which Bank may deem necessary or desirable to evidence, perfect or maintain perfection of the security interests created in the Certificate(s) and any renewals, replacements and substitutions thereof. Additional Terms and Conditions 1. Covenants. Undersigned covenants and agrees that until all indebtedness evidenced hereby has been paid in full, Undersigned shall: (a) maintain at all times a positive tangible net worth; (b) (1) have all Environmental Permits necessary for the conduct of each of Undersigned's businesses and operations, (2) conduct each of Undersigned's businesses and operations in material compliance with all applicable Environmental Laws and Environmental Permits, (3) not permit to exist any event or condition that requires or is likely to require Undersigned under any Environmental Law to pay or expend funds by way of fines, judgments, damages, cleanup, remediation or the like in an aggregate amount, the payment of which could reasonably be expected to interfere substantially with normal operations of Undersigned or materially adversely affect the financial condition of Undersigned, (4) notify Bank promptly upon becoming aware of any pending or threatened proceeding, suit, investigation, allegation or inquiry regarding any alleged event or condition that, if resolved unfavorably to Undersigned or any of Undersigned's subsidiaries or affiliates, is likely to cause Undersigned or any of its subsidiaries or affiliates under any Environmental Law to pay or expend funds by way of fines, judgments, damages, cleaning, remediation or the like, and (5) provide at Undersigned's cost, upon request by Bank, certifications, documentation, copies of pleadings and other information regarding the above, all in form and content satisfactory to Bank; (c) conduct each of Undersigned's businesses and operations in material compliance with all federal, state or local laws, statutes, regulations, rules, ordinances, court or administrative orders or decrees, or private agreements or interpretations, now or hereafter in existence, directly or indirectly relating to or affecting Undersigned's businesses or operations; (d) use the proceeds of the loan evidenced hereby only for business purpose(s) specified to Bank at or prior to the execution hereof; (e) promptly notify Bank in writing of any change in Undersigned's residence or Chief Executive Office; (f) purchase and maintain policies of insurance (including flood insurance) to protect against such risks and casualties, and in such amounts, as shall be required by Bank and/or applicable law, which policies shall (1) be in form and substance satisfactory to Bank, (2) at Bank's option, designate Bank as loss payee and/or as additional insured, and/or contain a lender's loss payable endorsement, and (3) be (or certificates evidencing same shall be) deposited with Bank; (g) (1) maintain and keep proper records and books of account in conformance with generally accepted accounting principles applied on a consistent basis in which full, true and correct entries shall be made of all Undersigned's dealings and business affairs, (2) provide to Bank at Undersigned's cost, upon Bank's request, financial or other information, documentation or certifications (including without limitation annual and periodic balance sheets and income statements, personal financial statements, federal income tax returns, inventory reports (including a description of raw materials, finished goods, and the aging thereof, as applicable), and accounts receivable and payable aging reports), all in form and content satisfactory to Bank, and (3) permit, upon request by Bank, any of the officers, employees or representatives of Bank to visit and inspect any of Undersigned's properties and locations and to examine its books and records and discuss the affairs, finances and accounts of Undersigned with representatives thereof, as often as Bank may request; (h) provide additional collateral at such times and having such value as Bank may request, if Bank shall have reasonable grounds for believing that the value of the collateral securing the indebtedness evidenced by this Note has become insufficient to secure said indebtedness; (i) pay, upon demand by Bank, (1) all costs and fees pertaining to the filing of any financing, continuation or termination statements, mortgages, satisfaction pieces, judgments and any other type of document which Bank deems necessary or desirable to be filed with regard to security interests which secure the indebtedness evidenced hereby, regardless of whether such security interests were granted by Undersigned, and (2) all costs and expenses incurred by Bank in Page 2 of 5 connection with any collateral searing this Note (including without limitation all advances made by Bank for taxes, levies, insurance, repairs to or maintenance of said collateral, appraisal or valuation of said collateral, and determination of flood hazard), regardless of whether such collateral is owned by Undersigned; and (j) pay, upon demand by Bank, all amounts incurred by Bank in connection with any action or proceeding taken or commenced by Bank to enforce or collect this Note, including attorney's fees equal to the lesser of (1) 20% of the outstanding principal balance and interest then due hereunder or $500.00, whichever is greater, or (2) the maximum amount permitted by law, plus attorney's costs and all costs of legal proceedings. 2. Events ofDelault.The occurrence of any of the following shall constitute an "Event of Default" hereunder: (a) default in payment or performance of any of the indebtedness or obligations evidenced by this Note or any other evidence of liability of Undersigned to Bank; (b) the breach by any Obligor (defined as Undersigned and each surety or guarantor of any of Undersigned's liabilities to Bank as well as any person or entity granting Bank a security interest in property to secure any indebtedness) of any covenant contained in this Note or in any separate security, guarantee or suretyship agreement between Bank and any Obligor, the occurrence of any default hereunder or under the terms of any such agreement, or the discovery by Bank of any false or misleading representation made by any Obligor herein or in any such agreement or in any other information submitted to Bank by any Obligor; (c) with respect to any Obligor: (1) death or incapacity of any individual or general partner, or (2) dissolution of any partnership or corporation; (d) any assignment for the benefit of creditors by any Obligor; (e) insolvency of any Obligor; (f) the filing or commencement of any petition, action, case or proceeding, voluntary or involuntary, under any state or federal law regarding bankruptcy, insolvency, reorganization, receivership or dissolution, including the Bankruptcy Reform Act of 1978, as amended, by or against any Obligor; (g) default under the terms of any lease of or mortgage on the premises where real or personal property securing the indebtedness evidenced by this Note is located; (h) the garnishment, tax assessment, attachment or taking by governmental authority or other creditor of any property of any Obligor which is in Bank's possession or which constitutes security for any indebtedness evidenced hereby, (i) entry of judgment against any Obligor in any court of record; (j) the assessment against any Obligor by the Internal Revenue Service or any other federal, state or local taxing authority of unpaid taxes, or the issuance of a levy or the entering of a lien in connection therewith; (k) change in control of or transfer of any interest in any Obligor (other than an Obligor who is an individual); p) a determination by Bank, which determination shall be conclusive if made in good faith, that a material adverse change has occurred in the financial or business condition of any Obligor; (m) the maturity of any life insurance policy held as collateral for the indebtedness evidenced by this Note by reason of the death of the insured or otherwise; or (n) default by Undersigned in the payment of any indebtedness of Undersigned or in the performance of any of Undersigned's obligations (other than indebtedness or obligations evidenced by this Note or any other evidence of liability of Undersigned to Bank) and such default shall continue for more than any applicable grace period. 3. Acceleration, Remedies. Upon the occurrence of any Event of Default: (a) all amounts due under this Note, including the unpaid balance of principal and interest hereof, shall become immediately due and payable at the option of Bank, without any demand or notice whatsoever; and (b) Bank may immediately and without demand exercise any of its rights and remedies granted herein, under applicable law, or which it may otherwise have, against Undersigned or otherwise. Notwithstanding any provision to the contrary contained herein, upon the occurrence of an Event of Default as described in Section 2(f) hereof, all amounts due under this Note, including w,,,..lut limitation the unpaid balance of principal and interest hereof, shall become immediately due and payable, without any demand, notice or further action by Bank whatsoever, and an action therefor shall immediately accrue. 4. Bank's Rights. Undersigned hereby authorizes Bank, and Bank shall have the continuing right, at its sole option and discretion, to: (a) do anything which Undersigned is required but fails to do, and in particular Bank may, if Undersigned fails to do so, obtain and pay any premiums payable on any policy of insurance required to be obtained or maintained hereunder, (b) direct any insurer to make payment of any insurance proceeds, including any returned or unearned premiums, directly to Bank, and apply such moneys to any indebtedness or other amount evidenced hereby in such order or fashion as Bank may elect; (c) pay the proceeds of the loan evidenced by this Note to any or all of the Undersigned individually or jointly, or to such other person(s) as any of the Undersigned may direct, except to the extent otherwise provided in Section 6 hereof; and (d) add any amounts paid or incurred by Bank under Section 1(i), Section 1(j) or Section 4(a) to the principal amount of the indebtedness evidenced by this Note. 5. Authorizadon to Borrow. Undersigned hereby represents, warrants, certifies and covenants as follows: (a) If Undersigned is a corporation, that the person(s) signing below hold(s) the office(s) indicated below (and continue to hold such office(s) until Bank has received notice to the contrary in writing from Undersigned), and that the Board of Directors of Undersigned has adopted resolutions providing that: (1) the person(s) executing and delivering this Note on behalf of Undersigned is/are authorized (i) to incur indebtedness and obligations on behalf of Undersigned by borrowing or making other financial arrangements with Bank from time to time, upon terms and conditions as they in their sole discretion deem desirable, (ii) to make, execute and deliver promissory notes, letter of credit agreements, security agreements, assignments, mortgages and all other documents required by Bank in connection with the incurring of indebtedness or obligations, and (iii) to assign and pledge as collateral security for any such indebtedness or obligations, now or hereafter existing, any real or personal property of Undersigned; (2) the actions of any one or more officers of Undersigned in borrowing money from Bank heretofore for the account of Undersigned, in assigning or pledging any of Undersigned's property for the payment thereof, or in doing any other act in connection therewith are hereby ratified, confirmed and approved; and (3) said resolutions shall have the force of a continuing agreement with Bank, and shall be binding upon Undersigned until a resolution amending them shall have been duty and legally adopted and Bank furnished a certified copy thereof. (b) If Undersigned is a partnership, that (1) Undersigned's name shown below is a trade name of Undersigned's firm used in the conduct of an unincorporated business owned entirely by the persons signing this Note on behalf of said partnership; (2) the partners executing and delivering this Note are authorized (i) to incur indebtedness and obligations on behalf of Undersigned by borrowing from or making other financing or credit accommodations with Bank from time to time, upon such terms and conditions as they in their sole discretion deem desirable, (ii) to make, execute, and deliver promissory notes, letter of credit agreements, security agreements, assignments, mortgages and all other documents required by Bank in connection with the incurring of indebtedness or obligations, and (iii) to assign and pledge as collateral security for any such indebtedness or obligations, `now or hereafter existing, any real or personal property of Undersigned; (3) the actions of any one or more partners of Undersigned in borrowing money from Bank heretofore for the account of Undersigned, in assigning or pledging any of Undersigned's property for the payment thereof, or in doing any other act in connection therewith are hereby ratified, confirmed, and approved; (4) notwithstanding any modification or termination of the Page 3 of 5 power of any of the partners to represent said firm, whether by expiration of the partnership agreement, by death or retirement of any partner, or the accession of one or more new partners, or otherwise, and notwithstanding any other notice thereof Bank may receive, this authority shall continue to be binding upon each of the Undersigned individually and upon their legal representatives, and upon Undersigned and its successors, until Bank has received notice in writing to the contrary signed by one of the Undersigned or by Undersigned's duly authorized agent (Receipt of such notice will not relieve any partner of any liability arising from obligations incurred prior to Bank's receipt of such notice.), and (5) nothing herein shall be construed to limit the rights granted to a partner by law or by the partnership agreement, but all rights granted herein shall be in addition to such rights. 6. Definitions; Miscellaneous Provisions. (a) Undersigned waives (except where requested hereby) notice of action taken by Bank; and hereby ratifies and confirms whatever Bank may do. Bank shall be entitled to exercise any right notwithstanding any prior exercise, failure to exercise or delay in exercising any such right. (b) Bank shall retain the lien of any judgment entered on account of the indebtedness evidenced hereby. Undersigned warrants that Undersigned has no defense whatsoever to any action or proceeding that may be brought to enforce or realize on any such judgment. (c) If any provision hereof shall for any reason be held invalid or unenforceable, no other provision shall be affected thereby, and this Note shall be construed as if the invalid or unenforceable provision had never been a part of it. The descriptive headings of this Note are for convenience only and shall not in any way affect the meaning or construction of any provision hereof. (d) The rights and privileges of Bank contained in this Note shall inure to the benefit of its successors and assigns, and the duties of Undersigned shall bind all heirs, personal representatives, successors and assigns. (e) This Note shall in all respects be governed by the laws of the state in which this Note is payable (except to the extent that federal law governs). (f) Undersigned hereby irrevocably appoints Bank and each holder hereof as Undersigned's attorney-in-fact to endorse Undersigned's name to any draft or check which may be payable to Undersigned in order to collect the proceeds of any insurance or any returned or unearned premiums in respect of any policies of insurance required to be maintained hereunder. Undersigned hereby acknowledges that this appointment of Bank and each holder hereof as attorney-in-fact is irrevocable and is coupled with an interest. (g) Undersigned assigns to Bank all moneys which may become payable on any policy of insurance required to be maintained under this Note, including any returned or unearned premiums. (h) "Environmental Law" means any federal, state or local environmental law, statute, regulation, rule, ordinance, court or administrative order or decree, or private agreement or interpretation, now or hereafter in existence, relating to the manufacture, distribution, labeling, use, handling, collection, storage, treatment, disposal or otherwise of Hazardous Substances, or in any way relating to pollution or protection of the environment or public health. (i) "Environmental Permit" means any federal, state or local permit, license or authorization issued under or in connection with any Environmental Law. (j) "Hazardous Substances" means petroleum and petroleum products, radioactive materials, asbestos, radon, lead containing materials, sewage or any materials or substances defined as or included in the definition of "hazardous wastes," "hazardous substances," "hazardous materials," "toxic substances," "hazardous air pollutants," "toxic pollutants," "pollution," or terms of similar meaning, as those terms are used in any Environmental Law. (k) "Chief Executive Office" means the place from which the main part of the business operations of an entity is managed. (1) "Undersigned" refers individually and collectively to all makers of this Note, including, in the case of any partnership, all general partners of such partnership individually and collectively, whether or not such partners sign below. Undersigned shall each be jointly and severalty bound by the terms hereof, and, with respect to any partnership executing this Note, each general partner shall be bound hereby both in such general partner's individual and partnership capacities. 7. Direction to Pay Proceeds.Undersigned hereby authorizes and directs Bank to pay the proceeds of this Note by: ®r crediting Account Number ()a.?' tZ I in the name of i AN6Of go>i ilwl- j/V.,11ti to the amount of ? & 9. paying r bm R s"'-*cv,5z 9 00 6"/,:7 I S-I WyS A ol-?j,31,3iV2y.3¢? ftl??..Z?'I the amount of $ Kpaying belvtrlrL1912 &//q'/ of the amount 8. Affidavit of Business Loan. (This Affidavit is not applicable if Undersigned is a corporation.) Undersigned, being duly authorized, depose(s) and say(s) under penalty of perjury that Undersigned: (a) Is/Are engaged in business asW Owner(s), ? General Partner(s) of (name and nature of business) YO_UNG'$ FOOD MARKET AND SAY-FOPD SUPERMARKET /?. FOOD MARKET (b) Hereby make(s) application to Bank for a loan, the proceeds of which will be utilized for the purpose( s) of REFINANCE MELLON DEBT, OTHER DEBT CONSOLIDATION & EQUIPMENT & INVOICE PURCHASE (c) Exercise(s) actual control over the managerial decisions of the business. (Remainder of page intentionally left blank) -7 l L' Page 4 of 5 9. Confession of Judgment UNDERSIGNED HEREBY EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR UNDERSIGNED AND TO CONFESS JUDGMENT AS OFTEN AS NECESSARY AGAINST UNDERSIGNED IN FAVOR OF THE HOLDER HEREOF, REGARDLESS OF WHETHER ANY EVENT OF DEFAULT HAS OCCURRED, AT ANY TIME AND AS OF ANY TERM, FOR THE OUTSTANDING PRINCIPAL BALANCE HEREOF PLUS INTEREST DUE UNDER THE TERMS HEREOF AND ALL OTHER AMOUNTS DUE HEREUNDER, TOGETHER WITH COSTS OF LEGAL PROCEEDINGS AND AN ATTORNEY'S COMMISSION EQUAL TO THE LESSER OF (A) 20% OF THE OUTSTANDING PRINCIPAL BALANCE AND INTEREST THEN DUE HEREUNDER OR $500.00, WHICHEVER IS GREATER, OR (B) THE MAXIMUM AMOUNT PERMITTED BY LAW, WITH RELEASE OF ALL ERRORS. UNDERSIGNED WAIVES ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION. By signing this Note, Undersigned agrees to all terms of the Note and swears, under penalty of perjury (as set forth in 18 Pa.C.S. §4904, If governed by Pennsylvania law), to the Affidavit of Business Loan (if completed) set forth in Section 8 of this Note. x k Witness the due execution hereof under seal. Witness: x Witness: X Mellon Bank, N.A Mellon Bank (DE) National Association CL4543 Re .(10,96) LC 9,96 LD 9/96 0275 P 166-64-3823 1 44543 (01) 052799,1605 X OOD MARKET AND 7241D } IL l ?C Individual: Y ULM `t! q "k (Seal) 672.. LOSERVILLE ROAD NEWVILLE, PA 17241 Page 5 of 5 Pennsylvania - Commercial Property CL-181 R (3,97) LC 297 LD 297 This Mortgage is made thisday of y i x'77 , by and from SANG HO KWAK (hereinafter called "Mortgagor") to Mellon Bank. N.A. (hereinafter called "Mortgagee"). As used herein, the term "Mortgagor" refers individually and collectively to all Mortgagors, and all such persons shall be jointly and severalty bound by the terms hereof. Whereas, SANG HO KWAK, INDIVIDUALLY AND D B A YOUNG'S FOOD MARKET AND SAY-FO D SUPERMARKET YON H KWAK (hereinafter called, individually and collectively, "Borrower"), (is) (are) indebted to Mortgagee in the principal sum of Three Hundred Ninety Five Thousand and 00/100 Dollars (3 395.000.00. l evidenced by credit application (the "Note") dated either a note or letter of99 . ? ??c To Secure the payment of all sums due or which may become due under said Note and all other obligations, debts, dues, instruments, liabilities, advances, judgments, damages, losses, claims, contracts and chosen in action, of whatever nature and however arising, owed to Mortgagee from any Borrower or Mortgagor, past, present or future, direct or indirect, absolute or contingent, voluntary or involuntary, now due or tobecome due, and any and all extensions or renewals thereof in whole or in part, whether owed by any Borrower or Mortgagor as drawer, maker, endorser, assignor, guarantor, surety, or otherwise whatsoever, excepting those Obligations (other than the Obligations evidenced by the Note) subject to the disclosure requirements of Federal Reserve Board Regulation Z, 12 C.F.R. §226.1 et seq., (all of such obligations secured hereby, hereinafter called the "Obligation(s)"), as well as to secure Mortgagor's performance under this Mortgage, Mortgagor by these presents, intending to be legally bound, does grant, bargain, sell and convey unto Mortgagee, its successors and assigns, all those certain tracts of land situated in TOWNSHIP OF FRANKFORD CUMBERLAND. County, Pennsylvania and more particularly described in Exhibit "A", attached hereto and made a part hereof; Together With All And Singular, the buildings and improvements, streets, lanes, alleys, passages, ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any way appertaining, and the reversions and remainders, rents, issues and profits thereof; To Have And To Hold same unto the said Mortgagee, its successors or assigns, Forever. Provided However, that if the Obligation is paid in full and if Borrower delivers to Mortgagee a written notification of its intention not to borrow additional sums from Mortgagee and thereby releases Mortgagee from its obligation advances to Borrower, then the estate hereby ? EXHIBIT discharged. w Mortgagor represents, warrants, covenants and agrees that: First: All furniture and furnishings of every kind and description and all appliances, apparatus and equipment now or hereafter in any building or improvements now or hereafter standing on the premises hereinabove granted (and all substitutions therefor or additions thereto) are considered to be necessary, indispensable and especially adapted and appropriate to the use and operation of said premises and constitute an integral part of said real estate; and all of the same are hereby conveyed, assigned and pledged, and shall be deemed and treated for all purposes of this instrument as real estate and not as personal property- This Mortgage is also a security agreement under the Pennsylvania Uniform Commercial Code by virtue of which Mortgagor does hereby grant to Mortgagee a security interest in all personal property now owned and hereinafter acquired, including furnishings, accessories, machinery and equipment (and all substitutions therefor or additions thereto), not comprehended by the Pennsylvania Industrial Plant Doctrine, plus all attachments and accessories thereto, and the proceeds (cash and non-cash) of the foregoing. (All items of property granted under this paragraph First, together with the real estate, the buildings and improvements thereon and the rights and interests granted in the Granting Clauses hereinabove set forth, are hereinafter referred to as the "Mortgaged Property".) Second: Mortgagor will keep and perform all of the covenants and agreements contained herein. Third: Without prior written consent of Mortgagee, which consent may be, - for any reason, Mortgagor shall not transfer or change legal or equitable title, ownership or control of all or part of the Mortgaged Property by sale, lease, stock transfer, transfer of partnership: share, operation of law or in any other manner, whether voluntarily or involuntarily. It is further understood and agreed that, if Mortgagee consents to any such transfer, Mortgagee may impose as a condition of such consent any condition which Mortgagee, in its sole judgment, deems appropriate. Fourth: Mortgagor warrants that it owns fee simple title to the Mortgaged Property free and dear of all liens, claims and encumbrances except as otherwise permitted by Mortgagee in writing, and that it has full right and authority to grant this Mortgage and to perform its obligations hereunder. Mortgagor covenants that the Mortgaged Property shall continue to be held free and clear of all hens, claims. and encumbrances except is otherwise expressly permitted by Mortgagee in writing. Fifth: Mortgagor will pay when due all taxes, assessments, levies and other charges on or against the Mortgaged Property which may attain priority over the lien of this Mortgage. If Mortgagor fails to do so, Mortgagee at its sole option may elect to pay such taxes, assessments, levies or other charges. Sixth: Mortgagor shall keep the Mortgaged Property in good repair, excepting only reasonable wear and tear. Mortgagor will permit Mortgagee's authorized representatives to enter upon the Mortgaged Property at any reasonable time for the purpose of inspecting the. condition of the Mortgaged Property. Without the prior written consent of Mortgagee, Mortgagor will not permit removal or demolition of improvements now or hereafter erected on the Mortgaged Property, nor will Mortgagor permit waste of the Mortgaged Property or alteration of. improvements now or hereafter ed on the Mortgaged Property which would adversely affect its 71[ value as determined by Mortgagee, 804, x55: PRGE AA Page 1 of 6 Seventh: In addition to the covenants and agreements made elsewhere in this Mortgage, Mortgagor further covenants and agrees with Mortgagee as follows: (a) Except as previously disclosed by Mortgagor to Mortgagee in writing, the Mortgaged Property is and will continue to be free of Hazardous Substances (as hereinafter defined), the presence of which Mortgagor is required to report to any federal, state or local agency or etuity or the presence of which is prohibited by any Environmental Law (as hereinafter defined); (b) Except as previously disclosed by Mortgagor to Mortgagee in writing, the ownership, operation or use of the Mortgaged Property by Mortgagor or Mortgagor's tenant(s), as the case may be, does not require as of the date hereof, nor in the future will require, the handling, storage, location or discharge of Hazardous Substances in, on or under the Mortgaged Property, the presence of which Mortgagor or Mortgagor's tenant(s) is required to report to any federal, state or local agency or entity or the presence of which is prohibited by any Environmental Law, (c) Mortgagor and Mortgagor's tenant(s),. if any, at all tunes have operated and maintained the Mortgaged Property, and at all times will continue to operate and maintain the Mortgaged Property, in material compliance with all Environmental Laws and Environmental Permits (as hereinafter defined); (d) Except as previously disclosed by Mortgagor to Mortgagee in writing, no pending or threatened proceeding, suit, investigation, allegation, or inquiry exists regarding any alleged violation of Environmental Laws or Environmental Permits with respect to the Mortgaged Property or of any alleged obligation to cleanup or remediate any Hazardous Substance in, on or under the Mortgaged Property, and Mortgagor shall notify, Mortgagee within five (5) business days in writing upon becoming aware hereafter of any such proceeding, suit, investigation, allegation, or inquiry, setting forth the details thereof, representation that Hazardous Substances are or are not present in, on, or under the Mortgaged Property, or that there has been or shall be compliance with any Environmental Law. Neither Mortgagor nor any other party is entitled to rely on any site visit, observation, or testing by Mortgagee, nor on any statements, representations, or any other comments made by Mortgagee to Mortgagor or any other party with respect to any Hazardous Substances or any other adverse condition affecting the Mortgaged Property. Mortgagee owes no duty of care to protect Mortgagor or any other party against, or to inform Mortgagor or any other party of, any Hazardous Substances or any other adverse condition affecting the Mortgaged Property. Mortgagee shall not be obligated to disclose to Mortgagor or any other party any report or findings made as a result of, or in connection with, any site visit, observation, or testing by Mortgagee. Ninth: Mortgagor shall indemnify, defend and hold harmless Mortgagee, its employees, agents, officers and directors from and against any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of any kind whatsoever, including but not limited to, attorney fees (including the. reasonable estimate of the allocated oQrA of in-house counsel and staff), all fees of environmental consultants and laboratory costs, arising out of or in any way relating to: (a) the release or threatened release, disposal or existence of any Hazardous Substances, on or affetxing the Mortgaged Property; (b) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Substances; (c) any lawsuit brought or threatened, settlement reached or governmental order issued relating to Hazardous Substances with respect to the Mortgaged Property, (d) any violation or alleged violation of taws, permits, licenses, orders, regulations, requirements or demands of government authorities or any policies or requirements of Mortgagee, which are based upon or in any way related to Hazardous Substances; or (e) the breach of any warranty, representation or covenant of Mortgagor contained herein or in any related ban document. This indemnity shall survive repayment of my Obligations or any judicial foreclosure, foreclosure by power of sale, deed-in-lieu of foreclosure, or transfer of the Mortgaged Property by Mortgagor or Mortgagee. (e) There does not exist, nor will Mortgagor permit to exist, any event or condition on or with respect to the Mortgaged Property that requires or is likely to require Mortgagor under any Environmental Law to pay or expend funds by way of fines, judgments, damages, cleanup, remediation or the tike; provided, however, that Mortgagor shall notify Mortgagee promptly in writing upon becoming aware hereafter of any such event or condition; and (t) Upon request by Mortgagee, Mortgagor shall provide (at Mortgagor's cost) certifications, dommentation, copies of pleadings and other information regarding ibe a'oow, At in form and content satisfactory to Mortgagee. Eighth: Mortgagee and its agents and representatives shall have the right at any time, (whether or not any event of default in connection with the obligations has occurred, or if any of the obligations is payable on demand, whether or not such demand has been made,) and at its sole option and discretion, without notice, to enter and visit the Mortgaged Property for the purposes of observing the Mortgaged Property, taking and removing soil or groundwater samples, and conducting tests on any part of the Mortgaged Property, all at the cost of Mortgagor. Mortgagee is under no duty, however, to visit or observe the Mortgaged Property or to conduct tests, and any such acts by Mortgagee shall be solely for the purposes of protecting its security interests and preserving Mortgagee's rights under the Note and other documents executed and delivered in connection with the Note. No site visit, observation, or testing by Mortgagee shall result in a. waiver of any default of Mortgagor or impose airy liability on Mortgagee. in no event shall any site visit, observation, or testing by Mortgagee be a The liability covered by these. indemnity provisions shall include, but not be limited to, losses sustained by Mortgagee and/or any of its successors and assigns fora (a) amounts owing as Obligations including diminution in value of the Mortgaged Property, (b) amounts arising out of personal injury or death claims, (c) amounts charged to Mortgagee for any environmental or Hazardous Substances clean up casts and expenses, Betts, or other such charges or impositions, (d) payment for reasonable attorney's fees and disbursements, expert witness fees, court costs, environmental- tests and design studies, and (e) any other amounts expended - by Mortgaget: or its successors and assigns in connection with the subject matter of Paragraphs Seventh, Eighth and Ninth. Tenth: Mortgagor shall keep the Mortgaged Property insured against loss by fire, all other hazards contemplated by the term "extended coverage", and such other risks and hazards as Mortgagee shall require, in such amounts as Mortgagee shall require, but never I= than the amount required to pay the Obligations secured hereby. Mortgagor will purchase flood insurance as and to the extent required by the Mortgagee. The insurer or insurers will be chosen by Mortgagor, subject to approval by Mortgagee; and approval shall not be unreasonably withheld. Alt insurance policies shall contain loss payable clauses in favor of Mortgagee and shall be cancelable by the insurer only after prior written notice by the insurer to Mortgagee. Mortgagor shall deliver written evidence of all such insurance to Mortgagee. If Mortgagor fails to obtain and keep in force any required insurance or fails to pay the premiums on such insurance, Mortgagee at its sole OOOM1552 GE A32 Page 2of6 option may elect to do so. In the event of loss, Mortgagor shall give prompt notice to the insurer and Mortgagee. Mortgagee at its option may elect to make proof of loss if Mortgagor does not do so promptly, and to take any action it deems necessary to preserve Mortgagor's or Mortgagee's rights under any insurance policy. Insurance proceeds shall be applied to restoration or repair of the Mortgaged Property or to reduction of the Obligation, as Mortgagee may determine in its sole discretion. Eleventh: Mortgagor hereby agrees to repay to Mortgagee on demand all sums which Mortgagee has elected to pay under Paragraphs Fifth and/or Tenth, and any costs which Mortgagee has incurred in taking actions permitted by Paragraph Eighth, with interest thereon at a per annum rate equal to the Contractual Rate(s) (as that term is defined in the Note), if any, and aft such sums, as well as any amounts for which Mortgagor has agreed to indemnify Mortgagee under Paragraph Ninth, shall, together with interest thereon, until repaid to Mortgagee, be part of the Obligations and be severed hereby. Twelfth: Mortgagor hereby assigns to Mortgagee all proceeds of any award in connection with any condemnation or other taking of the Mortgaged Property or any part thereof, or payment for conveyance in lieu of condemnation. Thirteenth: If the Mortgaged Property or any portion thereof consists of a unit in a condominium or a planned unit development, Mortgagor shall perform all of Mortgagor's Obligations under the declaration or covenants creating or governing the condominium or planned unit development, the by-laws, rules and regulations of the condominiums or planned unit development, and related documents. If a condominium or planned unit development rider is executed by Mortgagor and recorded with this Mortgage, the covenants and agreements of such rider shall be incorporated herein as if the rider, were a part hereof. Fourteenth: In order to further secure Mortgagee in the event of default in the payment of the Obligations secured hereby, or in the performance by Mortgagor of any of the covenants, conditions or agreements contained herein, Mortgagor hereby assigns and transfers to Mortgagee, its successors and assigns, any and all leases on the Mortgaged Property or any part thereof, now existing or which may hereafter be made at any time, together with any and all rents, issues and profits arising from the Mortgaged Property under said leases or otherwise, without obligation of Mortgagee to perform or discharge any obligation, duty or liability under such leases, but with full authorization to collect all rents under the leases or otherwise and to take possession of and rent the Mortgaged Property. Mortgagor covenants not to accept the payment of any rent paid more than ninety (90) days in advancer Fifteenth: In the event that (a) Borrower and/or Mortgagor fails to pay any Obligation or any portion thereof when due; or (b) Mortgagor breaches any warranty, covenant or agreement contained herein; or (c) any representation or warranty contained herein or otherwise made by any Mortgagor or Borrower in connection with this Mortgage or any of the Obligation proves to be false or misleading; or (d) there occurs an event of default under any agreement evidencing, securing or otherwise executed and delivered by any Borrower and/or Mortgagor in connection with the Obligation or any portion thereof or (e) there occurs an event of default fornon-payment under the terms off any other mortgage or other instrument creating alien on the Mortgaged Property (whether or not such hen is in favor of Mortgagee); or (1) a holder of any hen encumbering the Mortgaged Property or any portion 4f thereof (whether such lien is junior or superior to the lien of this Mortgage) commences a foreclosure or any other proceeding to execute on such hen; or (g) any Borrower or Mortgagor makes an assignment for the benefit of its creditors, becomes insolvent, or files or has filed against it any petition, action, case or proceeding, voluntary or involuntary, under any state or federal law regarding bankruptcy, insolvency, reorganization, receivership or dissolution, including the Bankruptcy Reform Act of 1978, as amended; or (h) Mortgagor fails to pay when due, any amount owing by Mortgagor pursuant to the terms hereof, then in addition to exercising any rights which Mortgagee may have under the terms of any agreement securing repayment of, or relating to, any portion of the Obligation, or otherwise pmvvidN by taw, Mortgagee may foreclose upon the Mortgaged Property by appropriate legal proeedings and sell the Mortgaged Property for the collection of the Obligation, together with costs of suit and attorney's commission equal to the lesser of (a) twenty percent (20%) of the total Obligation or five hundred dollars ($500:00), whichever is the larger amount or (b) the maximum amount permitted by law. Mortgagor hereby forever waives and releases all errors in the said proceedings, waives stay of execution, the right of inquisition and extension of time of payment, agrees to condemnation of any property levied upon by virtue of any such execution, and gates all exemptions from levy and sale of ary property that now is or hereafter may be exempted by law. Sixteenth: The rights and remedies of Mortgagee as provided herein, or in any other agreement securing repayment of, or relating to, any portion of the Obligations, or otherwise provided by law, shall be cumulative and may be pursued singly, concurrently, or successively in Mortgagee's sole discretion, and may be exercised as often as necessary, and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release of the same., Seventeenth:. As-used in this Mortgage: (a) "Environmental Law" means any federal, state or local environmental law, statute, regulation, rule, ordinance, court or administrative orderor decree, or private agreement or interpretation, now or hereafter in existence, relating to the use, handling, collection, storage, treatment, disposal or otherwise of Hazardous Substances, or in any way relating to pollution or protection or the environment, including but not limited to: the Clean Air Act, 42 U.S.C. 7401 et see : the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. 1251 et see : the Hazardous Material Transportation Act, 49 U.S.C. 1801 etett §cq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et sea.: the Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et sea.; the Toxic Substances Control Act, 15 US.r_ 2601 et see.: all as amended. (b) "Environmental Permit" means any federal, state or total oermit, license or authorization issued under or in connection with any Environmental Law. (c) "Hazardous Substances includes petroleum and. petroleum products, radioactive materials, asbestos or any materials or substances defined as or included in the definition of "hazardous wastes," "hazardous substances," "hazardous materials," "toxic substances," "hazardous air pollutants," and "toxic pollutants," as those terms are used in any Environmental Law, including any state or federal law or local ordinance relating to hazardous substances now or hereafter in existence, and in any regulations promulgated or maybe promulgated thereunder. , Eighteenth. The covenants, conditions and agreements contained herein shall bind:& heirs, personal representatives, and successors of Mortgagor, and the rights and privileges contained herein shall inure to the successors or assigns of Mortgagee, eoox1552e1113t ,433 Page 3 of 6 Nineteenth: The formal and essential validity hereof shall be governed in all respects by the lays of Pennsylvania. If any provision hereof shall for any reason be held invalid or unenforceable, no other provision shall be affected thereby, and this Mortgage shall be construed as if the invalid or unenforceable provision had never been part of it Witness: Twentieth: If any amount advanced under the Note was us;;d to purchase the Mortgaged Property, then it is intended that this Mortgage be a Purchase Money Mortgage under the provisions of 42 PA C.S.A. §8141. (Seal) Witness: x - , 44? 672 BLSERVILLL ROAD NEWVI , PA 17241 Indio dual: )h? / z-pfl-? _h'-t?-?r. ?// 2 (Seal) 672?BLOSERVILLE ROAD NEWVILLE, PA 17241 Mellon Bank, N.A. Mortgagee within named, hereby certifies that its principal place of businessisat Business Banking Loan Center State of e n n 5 County of Aa I t n.I On the G- ( ) day of who being duty sworn, did acknowledge that is before me personally came 6o 4 U ?- did sign the foregoing instrument, and that the same free act and deed. In testimony whe rceof, I have hereunto subscribed my name. si Notary Public F No VOa N'o "r'? ?.:.... sb?r!tpa "S;Shatto, o. Nola P urg. sup 'n County tAy Cotnmissbn E?IrAS Aug. S, 2002 Member, Pat sylvan a Association of Notanes BOOK ,552 FAcr A34 Page 4 of 6 Two Mellon Bank Center. Rm. 152-0350 Staieof County of On the day of , before me personalty came who being duly sword, did acknowledge to be the of a and that -as such being authorized to do so, executed the foregoing instrument on behalf of said for the purpose therein contained. In testimony whereof, I have hereunto subscribed my name. My Commission Expires: Notary Public Common of Pennsylvania County of f. 1-,"Z-Lqn-A SS. Recorded in the Office of the Recorder of Deeds in and for said County on the itt hfortgdg Book Volume (, SYj Z , page 4. _ Witness my hand and the seal of said office the day and year aforesaid. Recorder _ /n . day of A,-,- TO Mellon Bank, N.A. RWXder=Ht0 Mellon Bank, N.A. Business Banking Loan Center P.O. Box 3080 Pittsburgh, PA 15230-3080 Attn: Collateral Unit 0275 02451 1 CL-281 (Rev. "7) LC 247 LD 247 Page 6 of 6 0775 P 16644.3823 1 CL281 (02) 057799,1605 -v15526a A36 From SANG HO KWAK YON HWA DWAK This Exhibit Arefers to that certain Mortgage dated from SANG HO KWAK YON IVA KWAX as Nlortaagor(s) to _btel lon Hank N. P,. as Mortgagee: Adl that ce.-rain parcel of land situated in TOWNSHIP OF UPPER FRANKFORD being known as NORT-d M0U I-kd4 ROAD/f////PARCEL 943-04-03V-028N and being more fully described in Deed Book 36-0 Page 349 recorded on 10101/1993 amone the land records of CUI MSRLAND County, PA 1 Parcel lD Number: 43.04-0387.02SN 000KC5,502PAGE A37 LZ42211Zm(4/N LG 3/96 LD 3N6 OVS P 166-66-332; ' 1 CL241 f011 OS16997630 ?' c, co co z t..0 r C ' ' • - Z M : O G V ?do •? u Y ** TOTAL PAGF.07 ** FORBEARANCE AGREEMENT T This forbearance agreement ("Agreement") is made this ? day of j Z) 2005 by and between Sang Ho Kwak, individually and d/b/a Say-Ford Supermarket a/k/a Sayford Supermarket (hereinafter, Say-Ford Supermarket and Sayford Supermarket will be referred to as "Say-Ford Supermarket") and d/b/a Young's Food Market ("Mr. Kwak") and Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania (the "Bank"). WITNESSETH: WHEREAS, on or about May 28, 1999, the Bank made a loan to Mr. Kwak and Yon Hwa Kwak ("Mrs. Kwak") (jointly, the "Kwaks'? in the amount of $395,000.00 (the "Loan"); WHEREAS, the Loan is evidenced by a note and security agreement dated May 28, 1999 (the "Note'; WHEREAS, in order to induce partially the Bank to make the Loan, the Kwaks executed and delivered to the Bank a mortgage (the "Mortgage") on their improved real estate situate in the Township of Frankford, Cumberland County, Pennsylvania, as more particularly described in Cumberland County Mortgage Book 1552, pages 431 et seq. (the "Mortgaged Property"); WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually and d/b/a Say-Ford Supermarket granted the Bank a security interest in, among other things, his equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights (collectively, the "Say-Ford Collateral"), as evidenced by a security agreement (the "Say-Ford 646216.3 EXHIBIT 21 21 N Security Agreement") and as perfected by certain UCC-1 financing statements (the "Say-Ford UCC-1 Financing Statements"); WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually and d/b/a Young's Food Market granted the Bank a security interest in, among other things, his equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights (collectively, the "Young's Food Market Collateral'), as evidenced by a security agreement (the "Young's Food Market Security Agreement") and as perfected by certain UCC-1 financing statements (the "Young's Food Market UCC-1 Financing Statements'); WHEREAS, Mrs. Kwak is deceased; WHEREAS, Mr. Kwak defaulted under the terms of the Note for failing to make payments of principal and interest when due; WHEREAS, as a result of Mr. Kwak's defaulting under the Note, on or about December 2, 2004, the Bank confessed judgment against Mr. Kwak in the Court of Common Pleas of Cumberland County at No. 04-6040 in the amount of $384,294.24, plus interest and costs (the "Confessed Judgment"); WHEREAS, Mr. Kwak has informed the Bank of his inability to pay the Note, in accordance with its terms, and has requested the Bank to enter into this Agreement relative to this one obligation of the Kwaks to the Bank; WHEREAS, Mr. Kwak and the Bank wish to enter into this Agreement without the Bank's waiving any of its rights and remedies under the subject indebtedness, but in an effort to permit Mr. 646216.} 2 Kwak the opportunity to resolve his financial difficulties and to arrange for the repayment of his obligations to the Bank under the Note; WHEREAS, in consideration of said forbearance, the parties hereto wish to enter into this Agreement outlining the terms of the forbearance. NOW, THEREFORE, intending to be legally bound hereby, and in consideration of the mutual terms and conditions hereinafter set forth, the receipt and adequacy of such consideration being hereby acknowledged, the parties hereto mutually agree as follows: 1. Confirmation of Mr. Kwak's Indebtedness. Mr. Kwak hereby confirms and acknowledges that he is justly and truly indebted to the Bank under the Note, without any setoff or defenses thereto. There is due to the Bank under the Note as of March 23, 2005 the amount of $298,840.40, consisting of principal in the amount of $297,289.47 and interest in the amount of $1,550.93, accruing at the approximate per diem rate of $70.19. It is expressly understood that the foregoing statement of indebtedness does not include accrued interest from March 14, 2005, attorneys' fees and costs, or other expenses which may be incurred by the Bank if the Bank finds it necessary to exercise its rights or remedies under the Loan Documents (as hereinafter defined). It is further expressly understood that the aforesaid amounts shall be included in the indebtedness due to the Bank from Mr. Kwak. 2. Confirmation of Loan Documents. Mr. Kwak hereby acknowledges and agrees that the information contained in the above-referenced recitals is true, accurate and complete, and further ratifies, confirms and acknowledges that all loan documents (the Note, the Mortgage, the Say-Ford Security Agreement, the Young's Food Market Security Agreement, the Say-Ford Financing 646216.3 3 Statements, the Young's Food Market Financing Statements, and any and all addenda or supplements thereto, and other related documents executed by the Kwaks, or either of them, and delivered to the Bank (hereinafter collectively referred to as the "Loan Documents")) concerning the indebtedness as referenced hereinabove and the Confessed Judgment are valid, binding and in full force and effect as of the date hereof, and that the Kwaks have no defense, setoff, counterclaim or challenge against the payment of any and all sums owing under the terms of the Loan Documents or the enforcement or validity of any of the terms thereof. 3. Re-affirmation of Certain Collateral. Mr. Kwak hereby confirms and re-affirms that the equipment listed on Schedule A hereto is part of the Say-Ford Collateral and/or the Young's Food Market Collateral and is subject to a perfected, first lien security interest in favor of the Bank. Mr. Kwak further agrees not to move any or all of the equipment set forth on Schedule A from the location set forth on Schedule A without first obtaining the express, written consent of the Bank, which consent may not be unreasonably withheld. Mr. Kwak also agrees not to sell any of the equipment set forth on Schedule A without first obtaining the express, written consent of the Bank, which consent may be withheld for any reason. 4. Payment oflndebtedness. On or about December 29, 2004, Mr. Kwak paid the Bank $30,000.00, for all past due payments, late charges, attorneys' fees and costs due under the Note and in consideration for the Bank's agreeing to enter into this Agreement. On or before April 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before May 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before June 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before 646216.3 4 July 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before August 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before September 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before October 1, 2005, Mr. Kwak shall pay the Bank a balloon payment of all principal, interest, late charges, attorneys' fees and costs, if any, then due under the Note. 5. Forbearance Term. The Bank hereby agrees to forbear from exercising the rights and remedies available to it as a result of the defaults which have occurred prior to the date hereof until the earlier of October 1, 2005 or an Event of Default (as hereinafter defined). 6. Interest. Interest will continue to accrue on the outstanding principal balance at the contractual rate set forth in the Note. Financial Statements. During the term of this Agreement, Mr. Kwak shall, upon request, provide any and all financial information the Bank may so request from time to time, including, but not limited to, a copy of his most recently filed federal income tax returns and current fully-executed financial statements. 8. Events of Default. The occurrence of any one or more of the following is an Event of Default hereunder: a) Mr. Kwak fails to observe or perform each and every provision of this Agreement, the Note, and any other loan documentation relative to the obligations of the Kwaks, including, but not limited to, the failure to make the payments as provided herein; b) Mr. Kwak files a petition under any provision of federal or state ptcy, insolvency, moratorium or similar law, or such petition is filed against him; 646216.3 C) Mr. Kwak misrepresents any warranty or representation given hereunder or misrepresents any material fact hereunder. 9. Forbearance by Bank. In consideration of this Agreement, the Bank hereby agrees that during the term of forbearance it shall take no action to collect its collateral or to enforce the within obligations or the underlying obligations so as to provide Mr. Kwak with an opportunity to resolve his financial difficulties as set forth herein. Said forbearance is conditioned upon Mr. Kwak's complying with this Agreement. 10. Binding Effect. This Agreement shall be binding upon the parties hereto, their executors, administrators, heirs, successors and assigns. Mr. Kwak shall not have the right to assign his rights hereunder without prior written consent of the Bank. 11. Inspections and Appraisals. Mr. Kwak hereby grants to the Bank the right at any time and from time to time to conduct inspections and/or appraisals of any or all of its collateral, including the Mortgaged Property, the Say-Ford Collateral and the Young's Food Market Collateral. 12. Governing Law and Venue. This Agreement shall be governed, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. Any and all disputes hereunder shall be commenced and resolved in any of the courts of common pleas of Pennsylvania. 13. No Waiver or Novation. Nothing herein contained and no actions taken by the Bank herein or in connection herewith shall constitute or be deemed to be a waiver or release of any default by Mr. Kwak of his obligations, or of the security interests, rights, remedies or privileges afforded to the Bank thereunder. Nothing herein shall constitute a waiver by the Bank of Mr. non-compliance with the terms of his obligations, nor shall anything contained herein constitute an 646216.3 6 agreement by the Bank to enter into any further agreements with Mr. Kwak. Neither this Agreement nor any other documents to be executed in connection herewith is in any way intended to constitute a novation of or a waiver of any of the underlying obligations. The Note and any and all other agreements in writing between Mr. Kwak and the Bank shall remain in full force and effect. In the event of any inconsistency between the terms of this Agreement and the terms of the Loan Documents, the terms of this Agreement shall prevail. All other terms, conditions and covenants set forth in the Loan Documents, except as expressly modified herein, remain unchanged and in full force and effect. 14. Extension. Nothing herein shall be construed as a representation or warranty by the Bank that the forbearance term granted herein shall be extended or renewed and the parties hereto confirm and acknowledge that no further extensions or renewals have been promised. 15. Time. Time is of the essence of each provision of this Agreement. 16. Construction. The parties acknowledge that each party and each party's counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any amendments or schedules hereto. 17. Release. Mr. Kwak hereby waives and releases the Bank, its officers, employees, agents, representatives, attorneys and directors and their executors, administrators, heirs, successors and assigns from any and all claims, causes of action, set-offs, recoupments, actions, debts, damages, liabilities and expenses which they may have against the Bank in connection with the Note, any 646216.3 action or inaction of the Bank or in any way related to the Loan Documents an_ this Agreement. 18. Voluntary Agreement. Mr. Kwak represents and warrants to t)- represented by legal counsel of his choice in regard to the transaction provided and that such counsel has explained to him the significance of the terms, and tl effect of this Agreement; (ii) he is fully aware and clearly understand all of the contained in this Agreement; (iii) he has voluntarily, with full knowledge and - distress of any kind, entered into this Agreement and the documents executed - Agreement; (iv) he is not relying on any representations either written or oral, made to them by the Bank other than as set forth in this Agreement; and (v) th. received by Mr. Kwak to enter into this Agreement and the arrangement conte- Agreement is fair, reasonable, equitable, actual and adequate. 19. Modification. This Agreement may not be modified except by the parties hereto with the same formality as this Agreement. 20. Gender and Number. Unless otherwise specified, the masculiE feminine and the neuter and vice versa. The singular-shall include the-plural a- 21. Additional Instruments. Each party shall, at the request of the acknowledge and deliver whatever additional instruments may be required in c intent of this Agreement. 22. Invalidity. In the event any one or more of the provisions contz Agreement shall for any reason be held to be invalid, illegal or unenforceable :i 646216.3 8 action or inaction of the Bank or in any way related to the Loan Documents and/or the negotiation of this Agreement. 18. Voluntary Agreement. Mr. Kwak represents and warrants to the Bank that (i) he is represented by legal counsel of his choice in regard to the transaction provided for in this Agreement and that such counsel has explained to him the significance of the terms, and the full meaning and effect of this Agreement; (ii) he is fully aware and clearly understand all of the terms and provisions contained in this Agreement; (iii) he has voluntarily, with full knowledge and without coercion or distress of any kind, entered into this Agreement and the documents executed in connection with this Agreement; (iv) he is not relying on any representations either written or oral, express or implied, made to them by the Bank other than as set forth in this Agreement; and (v) the consideration received by Mr. Kwak to enter into this Agreement and the arrangement contemplated by this Agreement is fair, reasonable, equitable, actual and adequate. 19. Modification. This Agreement may not be modified except by a writing executed by the parties hereto with the same formality as this Agreement. 20. Gender and Number. Unless otherwise specified, the masculine shall include the feminine and the neuter and vice versa. The singular_shall include- the-plural - and vice versa. 21. Additional Instruments. Each party shall, at the request of the other party, execute, acknowledge and deliver whatever additional instruments may be required in order to accomplish the intent of this Agreement. 22. Invalidity. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such 646216.3 invalidity, illegality or unenforceability shall not affect any of the provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 23. Counterparts. This Agreement may be executed in identical counterparts which together shall constitute a single agreement. 24. Complete Agreement. This is the complete agreement and there is no written or oral understanding or agreement directly or indirectly connected with this Agreement that is not specifically incorporated herein by reference. 25. Waiver of Jury Trial. Mr. Kwak and the Bank irrevocably, as an independent covenant, waive jury trial and the rights thereto in any action or proceeding between Mr. Kwak and the Bank. IN WITNESS WHEREOF, Mr. Kwak and the Bank, intending to be legally bound hereby, have executed this Agreement the day and year first above written. WITNESS: San g vak ATTEST: MELLON BANK, N.A., now by assignment, CITIZENS BA_NK OF PENNSYLVANIA BY: 646216.3 9 COMMONWEALTH OF PENNSYLVANIA COUNTY OF LUZERNE SS: Chi ON THIS, the 1,7 day of /q nP 1 J` , 2005, before me, the undersigned officer, personally appeared Joseph E. Sweeney, who acknowledged himself to be Assistant Vice President of Citizens Bank of Pennsylvania, and that he, being authorized to do so, executed the foregoing instrument for the purposes herein contained by signing the name of Citizens Bank of Pennsylvania, by himself, as Assistant Vice President. IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal. COMMONWEALTH OF PENNSYLVANIA Notarial Seal .: Jane A Muscavage, Notary Public-- City Of Wilkes-Bane, Luzeme County I.I ,RY LIC My Commission Expires Nov. 3.2007 _ Member, PennsyWania Association Of Notaries - COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS: ON THIS, the I fk day of _ n en (' I , 2005, before me, the undersigned officer, personally appeared Sang Ho Kwak, known to be (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purpose therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal. NOTARY PUBLIC 646216.3 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Rhonda Heffelfinger. Notary Public City Of Hariisburg, Dauphin County My Commission Expires Apr. 22, 2008 Member, Pennsylvania Association Of Notaries SCHEDULE A Savford Market Secured Equipment Sharp ER-A330 Cash Register Casio PCRT 2000 Cash Register Panasonic KX-FP121 Fax Machine Bunn Coffee Maker VPS Series Power Cooler 2 Door Beverage Air Deli Cooler True Deli Bar Refrigerator Hussman Meat Cooler Displays (3) Tafco Pre Fab Walk In Cooler 12 Door Tafco Pre Fab Walk In Freezer 12 Door Whirlpool Range Young's Market (Newville. PA) Secured Equipment TEL SL 9000 Mega Refrigerator Unit Pre Fab 10 x 12 Walk in Cooler Hobart Meat Tenderizer Bird Meat Cutter Heat Seater 20 Inch Berkel Meat Slicer 3340 Berkel Meat Slicer 919/1 Eastern Mfg. Checkout Computer System (1) Master Computer (2) Check Out Stations Powers Sliding Cooler with butcher top cover, Ser. No. 8947-556 Migdi Deli Case with Bottom Refrigerator, Ser. No. 894004 21/2 x 3' Tappan Chest Freezer Sturdi-Bilt up Draft and Exhaust Fan 30" Comstock-Castle Stove, Ser. No. 7MM420 Castle Pizza 2-Shelf Oven, Ser. No. 6MM128 Westy Cash Register Sanyo, Ser. No. 63404445 Slicer Model 919-1, Ser. No. 9365-1151-09830 Sworn to and subscribed before me this }h day of ARC i 1 , 2005. 4f SAN HO K AK' COMMONWEALTH OF PENNSYLVANIA Notarial Seal Rhonda Heffelfinger, Notary Pubfic City Of Harrisburg, Dauphin County My Commission Expires Apr. 22, 2008 Member, Pennsylvania Association Of Notaries AFFIDAVIT OF COMPLIANCE WITH ACT 91/ACT 6 COMMONWEALTH OF PENNSYLVANIA COUNTY OF LUZERNE SS. I, Joseph E. Sweeney, Assistant Vice President for the plaintiff, being duly sworn according to law, depose and say as follows: 1. On February 16, 2005, counsel for the plaintiff mailed a Combined Act 91/Act 6 Notice to the defendants and to the current occupant/tenant by first class mail and certified mail, return receipt requested. 2. To the best of my knowledge, information and belief, neither I, nor any representative of the plaintiff, has been contacted by defendants, or by any consumer counseling agency representing the defendants. 3. To the best of my knowledge, information and belief, neither I, nor any representative of the plaintiff, has been notified by defendants, a consumer counseling agency, or the Pennsylvania Housing Finance Agency, that any applications for assistance have been filed by E. Sworn to and subscribed before me this & day of us% 2005. G 1, l`> (,G>?/ c'am' "JC otary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jane A. Muscavage, Notary Public Oty Of Wilkes-Bane, Lucerne County My Commission Expires Nov. 3, 2007 Member. Pennsylvanla Associarmn Of Notaries 677698.1 AFFIDAVIT OF NON-MILITARY SERVICE OF DEFENDANTS COMMONWEALTH OF PENNSYLVANIA: SS COUNTY OF LUZERNE I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, being duly sworn according to law, depose and say that I did, upon the request of Citizens Bank of Pennsylvania, investigate the status of Sang Ho Kwak and Yon Hwa Kwak with regard to the Soldiers' and Sailors' Civil Relief Act of 1940. To the best of my knowledge or information and belief, Sang Ho Kwak and Yon Hwa Kwak are not now, or were they, within a period of the last three (3) months, in the military or naval service of the United States within the purview of the Soldiers' and Sailors' Relief Act of 1940. E. Sworn to and subscribed L l before me this day of /? Jia' u s %_ 2005 .Notary Pub lie J COMMONWEALTH OF PENNSYLVANIA Notanal Seal EMY?C-?=MiWion A. Muscavage, Notafy Public Wilkes-Barre, Lumme County E?ires Nov. 3, 2007 Member . Pennsylvania °•sea;+:ailorOf Notari©s 677694.1 AFFIDAVIT OF LAST KNOWN ADDRESS COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF LUZERNE I, Joseph E. Sweeney, Assistant Vice President, of Citizens Bank of Pennsylvania, being duly sworn according to law, depose and say that the last known address of the above-captioned defendant is as follows: Sang Ho Kwak 2208 Chatham Way Harrisburg, PA 17110 Sworn to and subscribed before me this day of AC) S '7-- 2005. ot2r-y Public COMMONWEALTH Of° PENNSYLVANIA Notarial Seal Jane A. Muscavage, Notary Public City Of Wilkes-Barre, Luxeme County My Commission Expires Nov. 3, 2007 Member. Penncvl,reniz A 3r..Y>s....i Of Notaries 677683.1 Yon Hwa Kwak, Deceased 2208 Chatham Way CERTIFICATION OF COMMERCIAL TRANSACTION I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, depose and say, subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities, that the underlying transaction relative to this complaint in confession of judgment is a commercial transaction to the best of my knowledge or information and belief. E. Sweeney. Assistant Vice President 677682.1 VERIFICATION I, Joseph E. Sweeney, hereby certify that I am an Assistant Vice President of Citizens Bank of Pennsylvania I have the authority to make this verification on its behalf. 1 hereby verify that the factual averments contained in the foregoing complaint are true upon my personal knowledge or information and belief. I understand that this verification is made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unswom falsification to authorities. Sweeney Pa,%' 6776811 I ; k i: !' r r r r ?y f I ?. HOURIGAN, KLUGER S QUINN A PROFESSIONAL CORPORATION BY: JAMES T. SHOEMAKER, ESQUIRE ATTORNEY FOR PLAINTIFF IDENTIFICATION NO. 63871 LAW OFFICES 600 THIRD AVENUE KINGSTON, PA 18704 (570) 287-3000 IN THE COURT OF COMMON PLEAS MELLON BANK, N.A., now by assignment IN THE COURT OF COMMON PLEAS CITIZENS BANK OF PENNSYLVANIA OF CUMBERLAND COUNTY 8 West Market St. Wilkes-Barre, PA 18701, vs. Plaintiff CIVIL ACTION -- LAW . MORTGAGE FORECLOSURE SANG HO KWAK, individually and d/b/a Young's Food Market and Say-Ford Supermarket: and YON HWA KWAK 2208 Chatham Way 05-4455 Harrisburg, PA 17110, TO: Prothonotary PRAECIPE TO DISCONTINUE CASE WITHOUT PREJUDICE Kindly discontinue the plaintiff's action in the above-referenced matter without prejudice. Thank you. Respe ubmitted HO RIG R & QUINN, P.C. By: Ja Shoemaker, Esquire Id No: 63871 Counsel for the plaintiff, Citizen Bank of Pennsylvania 600 Third Avenue Kingston, PA 18704 (570) 287-3000 Telephone (570) 287-8005 Facsimile Dated: September 29, 2008 693799.2 C= i?7 c a > a• ^GY-{_, ? ter` co