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HomeMy WebLinkAbout94-06947 Rohrbaugh, adult individuals residing at 430 South Frederick street, Mechanicsburg, Cumberland county, pennsylvania; Thomas C. Crabtree and Paula Crabtree, adult individuals residing at lS05 Charles street, New Cumberland, Pennsylvania; James D. Novinger, an adult individual, whose last known address was care of patrick Hospodaivs, C,P.A., 701 Melanie Lane, Middletown, Pennsylvania; Sandra K, Novinger, an adult individual residing at 2170 Mockingbird Road, Box 6, Harrisburg, Dauphin County, Pennsylvania; Gary L, Houck and Patricia Houck, adult individuals residing at 742 Wells Drive, Harrisburg, Dauphin county, pennsylvania; Christopher E, Daniels, an adult individual residing at S Fox Chase Drive, Harrisburg, Dauphin County, Pennsylvania; Scott E. Davis, an adult individual residing at 4507 Carrollton Drive, Harrisburg, Dauphin County, Pennsylvania; and Edward J. Weintraub, an adult individual residing at 2945 Green street, Harrisburg, Dauphin county, Pennsylvania. 3. Attached hereto and marked as Exhibit A is a true and correct copy of a certain Guarantee dated 30 April 1987 (the "Guarantee") authorizing confession of judgment and duly executed by the Defendants. 4. Attached hereto and marked as Exhibit B is a true and correct copy of that certain agreement modifying the terms of the Guarantee duly executed by the Defendants. 5, The attached instruments have not been assigned. 2 GUIIRIIN1'Y WHEREIIS, Pentad Enterprises, a Pennsylvania General Partnership ("Borrower"), desires to obtain credi t from The Parkway IIpartm"nts Partnership, a Pennsylvania General Partnership, its successors and assigns ("Parkway"), and WHEREIIS, Parkway is unwilling to extend the aforesaid loan or to grant credit to Borrower without this Guaranty of Carl J. Davis, G. Douglas Rohrbaugh, Thomas C. Crabtree, Christopher E. Daniels, Scot E. Davis, Gary L. Houck, James D. Novinger, and Edward J. Weintraub, they being the Partners of Borrower (collectively, "Guarantors"). ,. NOW THEREFORE, in order to induce Parkway to extend credit to Borrower, and in consideration of the premises and the sum of One Dollar ($1.00) and other good and valuable consideration, Guarantors, as sureties, subject to the limitation hereinafter set forth in paragraph 1, hereby jointly, severally, absolutely and unconditionally guarantee to Parkway prompt payment when due and at all times thereafter repayment of the prin- cipal sum and accrued interest of the Note and Mo~tgage between Borrower and Parkway, and, in addition, any and all other charges arising out of the Note and Mortgage and assessed or payable by the Borrower to Parkway, howsoever or whensoever created, arising, evidenced, or acquired. .' 1. The amount of the Guarantors' liability hereunder shall be FOUR HUNDRED THOUSAND DOLLARS ($400,000.00), plus other assessments, charges, and penalties due under the Note and Mortgage. 2. Guarantors' liability hereunder is several and is independent of any other guaranties at any time in effect with respect to all or any part of the indebtedness of Borrower to Parkway, and this Guaranty may be enf~rced regardless of the existence of any such other guaranties. 3. Guarantors waive all notices of any character whatsoever with respect to this Guaranty, including, but not limited to: notice of accep- tance hereof, notice of creation, existence or acquisition of any liability hereby guaranteed, notice of adverse change in Borrower's or any guarantor's financial condition or of any ather fact affecting Borrower's or any guarantor's ability to perform hereunder, and notice of default. Guarantors further waive any right to require Parkway to sue or otherwise enforce pay- ment of any instrument representing indebtedness covered by this Guaranty. In addition, Guarantors waive the benefit of all laws now or hereafter in effect in any way limiting or restricting its liability hereunder, and waives all defenses whatsoever other than payment. This paragraph shall not constitute a waiver by Borrower of required notices of default contained in the foregoing loan documents. No act of commission or omission of any kind or at any time upon the part of tho Borrowor, its successors or assigns, with respoct to any matter whatsoevor shall in any way impair the rights of the Parkway to enforce any right, p~wer or benefit undor thin Guaranty and no setoff, counterclaim, reduction, or diminution of any obligation, or any defense of any kind or nature which Borrower has or may have against the Borrower or any assignee or successor theroof shall bo available hereunder against the Parkway, except as may be specifically provided in this Guaranty. 0' 4. If any of Berrower's obligations to Parkway are not d~ly per- formed after any applicable grace periods, including the prompt payment when due of any amount payable under the Note and Mortgage, all of Borrower's liabilities to Parkway shall at Parkway's option be deemed to be forthwith due and payable for the purposes of this Guaranty. 5. Notwithstanding the limit set forth in paragraph 1 hereof, Guarantors also agree to pay to Parkway on demand all costs and expenses (including reasonable attorneys' fees and legal expenses) which may be incurred in the enforcement of the Borrower's liabilities to Parkway or this Guaranty . 6. Upon the occurrence of any event of dofault in the Mortgage and Note between the Borrower and Parkway bearing even date herewith, Guarantors authorize and empower any Prothonotary, Clerk or Attorn~y of any Cou~~ of Record to appear for and confess judgment against them ~n favor of Parkway, its successors or assigns, for the sums set forth 1n paragraphs 1 and 5 hereof (with l' added for collection fues) , with or without declaration filed, with interest and costs, release of error, without stay of execution; Guarantors further authorize the immediate issuing of appropriate writs of execution upon which real or personal property may be sold without delay as provided by law or the rulos of civil procedure governing the enforcement of judgments and waives the right of inquisition on any real estate that may be levied upon to collect the amount due under a judgment obtained by virtue hereof and does voluntarily condemn the same; Guarantors further waives and releases all relief from any and all appraisement, stay, exemption or homestead laws of any state, now in force, or horeafter passed, and any right ~o except to, strike off, open or appeal from the judgment so entered; and if a true copy of this instrument shall be filed in any such action, it shall not be necessary to file the original as a warrant of attorney, any rule of court to the contrary notwithstanding. No single exercise of the foregoing warrant and power to confess judgmont shall be deemed to exhaust the power, but it shall continue undiminished and may be exorcised from time to timo as often as Parkway shall elect, until all sums payable by the undersignod have been paid in full. 7. The liability of Cuarantors hereunder is absoluto and uncondi- tional and shall not be affected in any way by reason of (a) any failure to - 2 - WKS Park\~ay. 6 AGREEMENT .' THIS AGREEMENT is made this lst day of November, 1993, by and between: 931 ASSOCIATES, a Pennsylvania general partnership formerly known as Pentad Enterprises, consisting of the following partners: James D. Novinger, Gary L. Houck, and THE BARON GROUP, a Pennsylvania general partnership, consisting of Carl J. Davis, G. Douglas Rohrbaugh, and Thomas C. Crabtree (hereinafter referred to collectively as the "Mortgagors"); and CARL J. DAVIS, G. DOUGLAS ROHRBAUGH, THOMAS C. CRABTREE, JAMES D. NOVINGER and GARY L. HOUCK, each as individuals, (hereinafter referred to collectively as the "Individual Partners"),,' and CHRISTOPHER E. DANIELS, SCOTT E. DAVIS, and EDWARD J. WEINTRAUB. (hereinafter referred to collectively as the "Original Guarantors"), and DONNA M. DAVIS, BEVERLY ROHRBAUGH, PAULA CRABTREE, SANDRA X. NOVINGER, and PATRICIA HOUCK (hereinafter referred to collectively as the "New Guarantors"), and THE ~ARKWAY APARTMENTS PARTNERSHIP, a Pennsylvania general partnership (hereinafter referred to as the "Mortgagee"). Background Mortgagors and the Original Guarantors executed and delivered to Mortgagee a certain mortgage ("Mortgage") dated 30 April 19B7. The Mortgage secures Mortgagor's obligation to Mortgagee in the principal amount of Four Hundred Thousand and 00/100 ($400,000.00) Dollars, evidenced by a certain mortgage note ("Note") dated 30 April 19B7 which was executed and delivered in 1 connection with the Mortgage. The Individual Partners and the Original Guarantors also executed and delivered to Mortgagee a guaranty dated 30 April 19B7 ("Guaranty") which was executed and delivered in connection with the Mortgage and Note. The terms of the Mortgage, Guaranty and Note were clarified by an Agreement to clarify Terms of Mortgage and Guaranty Documents dated 30 April 19B7 (hereinafter collectively referred to as the "Documents"). It being the intention of the parties hereto to modify but not to supersede, supplant, or replace the Documents and the consideration for this Agreement being the mutual covenants agreed upon herein. NOW, THEREFORE, the parties hereto, intending to legally bind themselves, their heirs, successors and assigns hereby agree as follows: 1. Except as specifically provided in this Agreement, the original terms and conditions of the Documents are hereby ratified and confirmed and shall remain in full force and effect. 2. On 10 June 1992 judgments were entered in the Court of Common Pleas of Cumberland County at 2117 civil 1992 and at 21lB civil 1992 and in the Court of Common Pleas of Dauphin county at l73l N 1992 and at l732 N 1992 (hereinafter collectively referred to as the "Judgments") pursuant to the terms of the Documents. Mortgagee hereby agrees that upon the execution of this Agreement and the payment of all sums to Mortgagee immediately due 2 hereunder, including $l2,OOO.00 in attorney's fees payable to Andes, Vaughn & Bangs, to vacate but not satisfy the Judgments. The parties hereto acknowledge and agree that the vacation of the Judgments places all parties in the same position they were before Mortgagee instituted any action to confess judgment and that accordingly, Mortgagee may pursuant to the terms of the Documents or this Agreement at any time in the future, confess judgment against any of the parties hereto for any default or breach of the terms of the Documents or this Agreement which may occur subsequent to the date hereof. 3. The original terms and conditions of the Guaranty are hereby ratified and confirmed and shall remain in full force and effect except that: (a) All references in the Guaranty to the Borrower shall hereafter be deemed to refer to the Mortgagors. (b) All references in the Guaranty to the Mortgage and Note shall hereafter be deemed to refer to those documents as modified by this Agreement. (c) All references in the Guaranty to the Guarantors shall hereafter be deemed to refer to the Individual Partners, the original Guarantors, and the New Guarantors. 4. Each of the Individual Partners and original Guarantors hereby acknowledges and affirms that their liability pursuant to the terms of the Guaranty, attached hereto as Exhibit A and incorporated herein by reference, continues unaffected by this Agreement. Each of the Mortgagors and Individual Partners hereby 3 acknowledges and affirms that the indemnification of the Original Guarantors by the Mortgagors and Individual Partners continues unaffected by this Agreement. All New Guarantors hereby acknowledge and affirm that each is now jointly and severally liable as a "Guarantor" as defined by and pursuant to the terms of the Guaranty. 5. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH OF THE INDIVIDUAL PARTNERS, ORIGINAL GUARANTORS, AND NEW GUARANTORS RATIFIES AND CONFIRMS THE WARRANT OF ATTORNEY IN THE GUARANTY. 6. Tile original terms and conditions of th,e Note are hereby ratified and confirmed and shall remain in full force and effect except that: (a) All references in the Note to the Maker shall hereafter be deemed to refer to the Mortgagors. (b) All references in the Note to the Note and Mortgage shall hereafter be deemed to refer to the Note and Mortgage as modified by this Agreement. (c) Paragraphs 1 and 2 of the Note are hereby deleted in their entirety and the following language is substituted therefore: 1. Payments of principal and interest at the rate of nine (9%) percent per annum shall be made in equal monthly installments of Five Thousand and 00/100 ($5,000.00) Dollars to be applied first to interest due and any balance applied to principal, on the 4 (b) All references to the Note and Mortgage shall be deemed to refer to those documents as modified by .' this Agreement. (c) The first four sentences of Paragraph 4 of the Mortgage are hereby deleted in their entirety and the following language is substituted: Mortgagor shall on or before 1 December 1993 and annually on that date thereafter during the term of this Mortgage cause to be prepared and provided to Mortgagee annual financial statements. said statements are to be prepared in accordance with generally accepted accounting principles and certified by the Mortgagors' accountants. " (d) Aftar the final sentence of Parag!aph 4 of the Mortgage, the following language shall be added: Mortgagor as well as any and all individuals comprising Mortgagor shall on or before 1 December 1993 and annually on that date thereafter during the term of this Mortgage, provide Mortgagee with copies of their respective most recent federal tax returns. In addition all individuals comprising Mortgagor shall each, on or before 1 December 1993 and annually on that date thereafter during the term of this Mortgage, provide Mortgagee with detailed personal financial statements as prepared by their respective accountants. said statements are to be prepared in accordance with generally accepted accounting principles and certified by their respective accountants. (e) Paragraphs 12(a) and (b) of the Mortgage are hereby deleted in their entirety and the following language is substituted: 6 (a) The failure of Mortgagor to pay any installment of principal and interest as the same becomes due and payable. (b) The failure of Mortgagor to pay any other sum required to be paid in the Note or in the Mortgage. 8. Upon the occurrence of any event of default pursuant to the terms of the Documents or any breach of this Agreement, Mortgagors, the Individual Partners, the Original Guarantors, and the New Guarantors irrevocably authorize and empower any Prothonotary, clerk or attorney of any court of record to appear for and confess judgment against them jointly and severally in favor of Mortgagee, its successors or assigns for such amount as is unpaid pursuant to the terms of the Documentuwith the accrued interest together with costs and attorney's fees of five (5%) percent of the full amount pursuant to the terms of the Documents (but not less than $500.00), with or without declaration filed, with interest and costs, release of error, without stay of execution; Mortgagors, the Individual Partners, the Original Guarantors, and the New Guarantors further authorize the immediate issuing of appropriate writs of execution upon which real or personal property may be sold without delay as provided by law or the Rules of civil Procedure governing the enforcement of judgments and waives the right of inquisition on any real estate that may be levied upon to collect the amount due under a judgment obtained by virtue hereof and does voluntarily condemn the same; Mortgagors, the Individual Partners, the original 7 . Guarantors, and the New Guarantors further waives and releases all relief from any and all appraisement, stay, exemption or homestead laws of any state, now in force or hereafter passed, and any right to accept, strike off, open or appeal from the judgment so entered; and if a true copy of this instrument shall be filed in any such action, it shall not be necessary to file the original as a warrant of attorney, any rule of court to the contrary notwithstanding. No single exercise of the foregoing warrant and power to confess judgment shall be deemed to exhaust the power, but it shall continue undimini~hed and may be exercised from time to time as often as Mortgag~e shall elect, until all sums payable by the Mortgagors, the Individual Partners, the Original Guarantors, and the New Guarantors have been paid in full. 9. The words Mortgagors, -Individual Partners, Original Guarantors, and New Guarantors includes singular or plural, individuals and or other legal entities and their respective heirs, executors, administrators, successors and assigns as the case may be. As more than one party is named as Mortgagors, Individual Partners, Original Guarantors, and New Guarantors, the obligation of each such party is joint and several. Mortgagors, Individual Partners, original Guarantors and the New Guarantors intend this to be a scaled instrument and to be legally bound hereby. 8 ,lil/29/9J lG:4il REED SMITH 9-AJ & MCCLAY H!J:i.m. 717 2JJ 560'5 t<<J. J9'.J 002 931 ABSOCIATHS ~x~llL- ( SIlAL) w(lttl~ I , ( SISAL) , TIm BAROH GROUP ~~. ( BAL) .. Wl'nlESS I I Rf/!I;~ tw:ftff ) ~~ I { ~) \<IlTNESS . I: : ~~<- . Ii I fSBAL) , I ~EAL) ~lJ~ { SEAL) WITNESS I ~ , ~ ~~(' ~SEAL) !fITNESS ~';~ tu-)-dV, ( 8KAL) ! I 9 ir. co ,.- !-: r~ N :J..;. it' CJ:.,';; '...:.\;_.. L~ .,~:;:~ C', <., . 1'[': r.- . 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