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HomeMy WebLinkAbout07-3416KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS TRUST COMPANY Plaintiff V. RICHARD D. CRIDER and DONNA M. CRIDER Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. ol MORTGAGE FORECLOSURE NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET Carlisle, PA 17013 Telephone: (800) 990-9108 KEEFER, WOOD, ALLEN & RAHAL Date: June 6, 2007 By: Eugene E. Pepinsky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff KEEFER WOOD ALLFN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO. RICHARD D. CRIDER and MORTGAGE FORECLOSURE DONNA M. CRIDER Defendants NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar Una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar Una Orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O Sl NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET Carlisle, PA 17013 Telephone: (800) 990-9108 KEEFER, WOOD, ALLEN & RAHAL Date: June 6, 2007 By: Eugene E. pinsky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. RICHARD D. CRIDER and DONNA M. CRIDER Defendants CIVIL ACTION - LAW NO. 0-7-301, MORTGAGE FORECLOSURE COMPLAINT 1. Plaintiff Manufacturers and Traders Trust Company is a New York banking corporation, with an address at 213 Market Street, Harrisburg, Pennsylvania 17101. 2. Defendants Richard D. Crider and Donna M. Crider are adult individuals, whose last known address is 47 Fleisher Road, Marysville, Pennsylvania 17053. 3. Defendants are the owners of a tract(s) or parcel(s) of land with buildings and other improvements thereon located at 555 Bosler Avenue, Lemoyne, Pennsylvania (the "Premises"). The Premises are more fully described hereinafter. 4. On or about January 19, 2005, Defendants executed a Mortgage in favor of Plaintiff (the "Mortgage"), which Mortgage was duly recorded in the Office of the Recorder of Deeds, in and for Cumberland County, Pennsylvania, in Book 1896, page 648. A true and correct copy of the Mortgage is attached hereto, made a part hereof and marked Exhibit A. 5. The failure of the Defendants, among other things, to pay when due and payable the payments under the Obligation constitutes a "default" as defined under the terms of the Mortgage. 6. The Defendants have failed and refused, among other things, to make payments due and payable under the Obligation. 7. The terms of the Mortgage provide that upon the occurrence of a default by the Defendants, the Plaintiff may accelerate and demand immediate payment of all sums due under the Mortgage. KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 8. The sum presently due and payable to Plaintiff by Defendants which is secured by the Mortgage is computed as follows: a. Unpaid Principal $ 111,308.08 b. Accrued Interest through 06/06/07 $ 2,193.76 C. Late charges through 06/06/07 $ 122.14 d. Attorney's Fees $ 10,000.00 TOTAL $ 124,623.98 11. Notice of the availability of mortgage assistance under the Homeowners Emergency Mortgage Disclosure Act of 1993 ("Act 91 ") was not required. 12. Notice of Intention to Foreclose pursuant to Section 403 of Act 6 was not required. WHEREFORE, Plaintiff demands judgment in the sum of $124,623.98, togetherwith interest as may accrue from and after June 7, 2007, and costs of suit, and for foreclosure of the Mortgage and judicial sale of the Premises. KEEFER, WOOD, ALLEN & RAHAL Date: June 6, 2007 By: Eugene . Pepinsky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff 06-06-07 10:26AM FROM-Keefer Wood Allen & Rahal 7172558050 T-435 P.006/006 F-372 KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG. PA 17108-1963 VERIFICATION The undersigned Jeffrey S. Linden, hereby verifies and states that: 1. He is Assistant Vice President of Manufacturers and Traders Trust Company, Plaintiff herein; 2. He is authorized to make this Verification on its behalf; 3. The facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and 4. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. i Je ey S. Linden Dated: June ?Q , 2007 R M&T 071**1] Manufacturers and Traders Trust Company 1 hereby certify that the address of the Bank is: Manufacturers and Traders Trust Company One M & T Plaza New York 14240 But Atene ral Counsel' ffice vvL On , half of Bank 0 THIS IS AN OPEN-END MORTGAGE SECURING FUTURE ADVANCES UP TO A MAXIMUM PRINCIPAL AMOUNT OF $100,000.00 PLUS ACCRUED INTEREST AND OTHER INDEBTEDNESS AS DESCRIBED IN 42.PA. C.S.A.§8143 Record and Return to: (OPEN ENDED) MORTGAGE BUSINESS EVFIJG CENTER P,1nnsylvania fTl C':3 IAA G7 rA r11 M&T BANK P.O. BOX 1358 BUFFALO, NEW YORK 14240 n _. .. r~1 fn THIS MORTGAGE, ASSIGNMENT OF LEASES, and SECURITY AGREEMENT (this "Mortgage") dated G " / % , 2005, is made by RICHARD D. CRIDER and DONNA M. CRIDER, whose address is 47 Fleisher Road, Marysville, Pennsylvania 17053 (the "Mortgagor") in favor of MANUFACTURERS AND TRADERS TRUST COMPANY (the "Bank"), a New York banking corporation with banking offices at One M&T Plaza, Buffalo, New York 14240 Attention: Office of General Counsel A. Obligations Secured. This Mortgage is executed, acknowledged and delivered by the Mortgagor to secure and enforce the following obligations and liabilities: 1. Present and Future Obligations. ANY AND ALL PRESENT AND FUTURE OBLIGATIONS AND INDEBTEDNESS OF EVERY KIND AND DESCRIPTION OF THE MORTGAGOR TO THE BANK OR ANY AFFILIATE (as herein defined), including (1) all sums due under the Loan Documents (as herein defined) in connection with financial accommodations in the principal amount of up to ONE HUNDRED THOUSAND DOLLARS AND NO CENTS ($100,000.00); and (ii) any other indebtedness and obligations for the payment of money now existing or arising in the future, direct or indirect, absolute, absolute or contingent (including those arising by operation of law), due orto become due, contractual or tortious, liquidated or unliquidated, now or hereafter owing by the Mortgagor or any Obligor to the Bank, or its successors or assigns, or its Affiliates, whether or not allowed as a claim against the Mortgagor in bankruptcy, (i) all extensions, renewals, refinancings, modifications and replacements and all interest and related charges, and reinstated Obligations, fees, late fees, expenses, attomeys' fees and costs or allocated fees and costs of the Bank's in-house legal counsel, that have been or may hereafter be contracted or incurred (collectively, the "Obligations"); and 2. Performance; Loan Documents. The performance of all of the terms, covenants, conditions, agreements, obligations and liabilities of the Mortgagor or any Obligor under this Mortgage or any and all credit accommodations, loan agreements, notes, guaranties and any other agreements and documents, now or hereafter existing, creating, evidencing, guarantying, securing or relating to any or all of the Obligations, together with all amendments, modifications, substitutions, renewals or extensions thereof(all of the foregoing collectively referred to as the "Loan Documents"). The Obligations secured by this Mortgage were obtained solely for the purpose of carrying on or acquiring a business or commercial investment and not for residential, consumer or household purposes. If the Obligations are residential, consumer or household in nature, then the Confession of Judgment in Paragraph L(3) is not applicable. This Mortgage secures payment of any and all of the Obligations, but the maximum principal amount of the Indebtedness secured, or which by any contingency may be secured hereby, is the amount first stated above and if the amount of the Obligations outstanding at any time exceeds said maximum amount secured, all payments in reduction of the Obligations shall be applied first to such excess not secured hereby and the lien of this Mortgage shall continue until all Obligations secured hereby, including outstanding contingent liabilities, if any, are finally and irrevocably paid in full. B. Definitions. As used herein, the following terms shall have the following meanings: 1. Affiliate. The term "Affiliate" means M&T Bank Corporation and any of its direct and indirect affiliates and subsidiaries. 2. Obligor. The term "Obligor" means the Mortgagor and each and every other maker, endorser, guarantor or surety of or for the Obligations, and any other party granting a security interest or other lien or encumbrance on any of its property to secure the Obligations. If the name of the person(s) or entity(ies) inserted in the space at the end of this paragraph is different from the name of Mortgagor identified on page one of this Mortgage, then this Mortgage has been granted to the Bank to secure, in part, one or more guaranties of the following person(s) or entity(ies) or the Mortgagor has granted the Mortgage to the Bank to secure, in part, the following person's or entity's obligations to the Bank without a guaranty, and the term "Obligor" shall also include the following person(s) or entity(ies): CRIDER EXCAVATING, INC. 3. Uniform Commercial Code. The term "Uniform Commercial Code" means the Uniform Commercial Code as the same may be in effect in the Commonwealth of Pennsylvania, as amended from time to time. C. Grant of Mortgage. To secure the payment and performance of all Obligations, the Mortgagor hereby mortgages, grants, conveys and assigns to the Bank, and grants to the Bank a lien on and a security interest in, all of the land, buildings, improvements, fixtures, equipment, easements, rights, appurtenances, leases, rents, contract rights and all of the following property, whether presently in existence or to come into existence at some future time (collectively, the "Mortgaged Property"): BKI896PGO648 1. Real Property. Street Address: 555 Bosler Avenue Borough of LEMOYNE Municipality/County/State: Lemoyne, Pennsylvania 17043, Cumberland County Tax Lot and Block/Parcel ID No.: 12-21-0265-211 Deed Book 108, Page 842 2. Roal ProRerty. Street Address: 601 Pear Street Borough of Lemoyne Municipality/County/State: Lemoyne, Pennsylvania 17043, Cumberland County Tax Lot and Block/Parcel ID No.: 12-21-0267-397 Deed Book 108, Page 842 as more fully described in the attached Schedule A, together with all buildings, structures and improvements of every kind erected thereon (the "Real Property"); 2. Fixtures; Leases; Estates, etc. All fixtures, machinery, equipment and other articles of real, personal or mixed property attached to, situate or installed in or upon, or used in the operation or maintenance of, the Real Property or any plant or business situated thereon, whether or not such real, personal or mixed property is or shall be affixed to the Real Property, and all replacements, substitutions, accretions and proceeds of the foregoing (collectively, "Fixtures"). All leases, licenses, occupancy agreements or agreements to lease all or any part of the Real Property and all extensions, renewals, amendments, and modifications thereof, and any options, rights of first refusal or guarantees relating thereto (collectively, "Leases"); all rents, income, receipts, revenues, security deposits, escrow accounts, reserves, issues, profits, awards and payments of any kind payable underthe Leases or otherwise arising from the Real Property (collectively, the "income"); all contract rights, accounts, investment property and general intangibles relating to the Real Property or the use, occupancy, maintenance, construction, repair or operation thereof; all management agreements; franchise agreements, utility agreements and deposits, all maps, plans, surveys and specifications; all warranties and guaranties; all permits, licenses and approvals; all insurance policies. All estates, rights, tenements, hereditaments, privileges, easements, and appurtenances of any kind benefitting the Real Property; all means of access to and from the Real Property, whether public or private; all water and mineral rights; all rights of the Mortgagor as grantor, declarant or unit owner under any condominium master deed, declaration or by-laws or in any association applicable to the Real Property; and 3. Proceeds. All "Proceeds" of any of the above-described property, which term shall have the meaning given to it in the Uniform Commercial Code and shall additionally include whatever is received upon the use, lease, sale, exchange, collection, or other utilization or any disposition of any of the foregoing property, voluntary or involuntary, whether cash or non-cash, including proceeds of insurance and condemnation awards, rental or lease payments, accounts, chattel paper, instruments, documents, contract rights, general intangibles, equipment and inventory. D. Extent and Priority of Lien of Mortgage. 1. Purchase Money Mortgage. If all or any part of the Obligations secured by this Mortgage were used in whole or in part to fund the acquisition of all or any part of the Mortgaged Property, this Mortgage shall constitute a purchase money mortgage and shall be entitled to all benefits as such under applicable laws of the state in which the Mortgaged Property is located. 2. Open-End Mortgage. This Mortgage secures all existing and future advances and readvances under the Loan Documents all of which shall be entitled to the lien priority and benefits of an Open-End Mortgage under 42 Pa. C.S.A. §8143, as it may be amended from time to time, (the "Open-End Mortgage Statute"). Without limiting anything contained in any provision of this Mortgage, this Mortgage secures the Mortgagor's obligation to repay all advances and readvances of principal under the Obligations made at closing oi? thereafter and all interest, late charges, fees, and other amounts due under the Obligations or this Mortgage, and in addition thereto: (1) all advances by the Bank to the Mortgagor or any other person to pay costs of erection, construction, alteration, repair, restoration, and completion of any part of any improvements situated on the Mortgaged Property; (ii) any and all advances made or costs incurred by the Bank for the payment of taxes, assessments, maintenance charges, insurance premiums, and similar charges with respect to the Mortgaged Property; (iii) any and all costs incurred for the protection of all or any part of the Mortgaged Property or the lien of this Mortgage; and (iv) any and all legal fees, costs, and other expenses incurred by the Bank by reason of any default or otherwise in connection with the Obligations. 3. Industrial Plant Mortgage. This Mortgage is intended to be an industrial plant mortgage within the broadest interpretation of the "industrial plant mortgage doctrine" under the laws of the Commonwealth of Pennsylvania. 4. Changes in Mortgage. The Mortgagor and the Bank may agree to change the interest rate or the maturity date applicable to the Obligations, release collateral for the Obligations or otherwise alter any other term of the Loan Documents; none of such changes shall affect the priority of the lien on this Mortgage. 5. Defeasance. This Mortgage shall terminate upon indefeasible payment and performance in full of the Obligations. Thereupon, the Bank shall release the Mortgaged Property and shall execute at the request of the Mortgagor a release of this Mortgage and any other instrument to that effect deemed necessary or desirable. E. Assignment of Leases. The Mortgagor hereby assigns and pledges to the Bank, as further security for the payment of the Obligations, all existing and future Leases and Income. The Mortgagor shall, upon demand, deliver to the Bank the original or an executed copy of each such Lease. The Mortgagor grants to the Bank the right to (i) enter the Mortgaged Property and collect the Income with or without taking possession of the Mortgaged Property; (ii) with or without legal process, dispossess by usual summary proceeding any tenant defaulting in the performance of its obligations under its lease; (iii) let the Mortgaged Property or any part thereof, and (iv) apply the Income to the payment of any charges and expenses of the Mortgaged Property or to the repayment of the Obligations in such order and amounts as the Bank shall determine in its sole discretion. This assignment shall continue in effect until this Mortgage is paid in full and discharged of record; however, so long as there shall exist no Event of Default (hereinafter defined), the Mortgagor shall have a license to collect the Income as it becomes due, but not prior to accrual. Without the prior written consent of the Bank, the Mortgagor shall not enter into, or amend, modify or terminate, any Lease of the Mortgaged Property. If the Mortgagor requests the Bank's consent pursuant hereto, but if the Bank does not respond to such request within ten (10) business days of receipt by the Bank of the request, the Bank's consent shall be deemed to have been given. The Mortgagor shall not collect any of the rent from the Mortgaged Property in advance of the time when the same shall become due under any lease or tenancy arrangement or, in any event, more than one (1) month in advance. The provisions of this Paragraph are for the sole benefit of the Bank and are not for the benefit of any other person or entity. MIS ! A A - F. Security6greement. This Mortgage constitutes a security agreement underthe Uniform Commercial Code and shall be deemed to constitute a financing statement. The Mortgagor hereby grants to the Bank a security interest in all equipment and fixtures and other personal property included in the Mortgaged Property, whether now owned or hereafter acquired, and all replacements of, substitutions for, and additions to, such property, and the Proceeds thereof. The Mortgagor shall, at the Mortgagor's own expense, execute, deliver, and file any financing or continuation statements or other security agreements the Bank may require from time to time, to perfect, confirm, and maintain the lien of this Mortgage with respect Jo such property. Without limiting the foregoing, the Mortgagor hereby irrevocably appoints the Bank (and any of its attorneys, officers, employees or agents) as the Mortgagor's true and lawful attorney-in-fact, said appointment being coupled with an interest, with full power of substitution in the name of the Mortgagor, the Bank or otherwise, for the sole use and benefit of the Bank in its sole discretion but at the Mortgagor's expense, to exercise to the extent permitted by law, in its name or in the name of the Mortgagor or otherwise, the powers set forth herein, whether or not any of the Obligations are due (i) to execute, deliver or file financing statements and other agreements for or on behalf of the Mortgagor; (ii) to notify lessees under any Lease of the Bank's interest therein and require such lessees to pay all sums due thereunder to the Bank; and (iii) to correspond and negotiate directly with insurance carriers. G. Representations and Covenants. 1. Payment and Performance. The Mortgagor shall pay and perform promptly as and when due (i) the Obligations in accordance with their stated terms and conditions; (ii) all obligations and liabilities under any Permitted Encumbrances (hereinafter defined); and (iii) all of its obligations as landlord under the Leases. 2. Warranty of Title. The Mortgagor warrants to the Bank that the Mortgagor has good and marketable fee simple absolute title to the Mortgaged Property subject only to those exceptions to title which are more particularly described in the title report issued to the Bank and which exceptions are accepted by the Bank in connection with this transaction (the "Permitted Encumbrances"). The Mortgagor hereby covenants that the Mortgagor shall (i) preserve such title and the validity and priority of the lien of this Mortgage and shall forever warrant and defend the same to the Bank against all lawful claims whatsoever excepting only those claiming under Permitted Encumbrances; and (ii) execute, acknowledge, and deliver all such further documents or assurances, cause to be done all such further acts as may at any time hereafter be required by the Bank to protect fully the lien of this Mortgage and pay all costs related thereto. 3. Insurance. The Mortgagor hereby covenants to obtain and maintain at all times, throughout the term of this Mortgage, insurance covering the Mortgaged Property, in such amounts, on such forms and written by such companies, as the Bank may require from time to time, including (i) comprehensive general public liability insurance; (ii) an "All-Risk" policy covering damage due to fire and extended hazard insurance (together with vandalism and malicious mischief endorsements); (iii) if the Mortgaged Property is required or eligible to be insured pursuant to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of 1968, flood insurance; and (iv) business interruption or rental loss coverage. Each insurance policy required under this Paragraph shall be written or endorsed so as to, (i) contain a standard mortgagee or lender's loss payable endorsement, as the case may be, or its equivalent; (ii) make all losses and all returns of unearned premiums payable directly to the Bank, without contribution; (iii) with respect to public liability coverage, name the Bank as an additional insured, as its interest may appear; and (iv) waive all rights of set off, counterclaim, deduction, or subrogation against the Mortgagor (so as not to interfere with the Bank's rights). Each insurance policy required under this Paragraph shall contain a provision to the effect that such policy shall not be canceled, altered, in any way limited in coverage, or reduced in amount unless the Bank is notified in writing at least thirty (30) days prior to such change. At least thirty (30) days prior to the expiration of any such policy, the Mortgagor shall furnish evidence satisfactoryto the Bank that such policy has been renewed, replaced, or is no longer required by this Paragraph, togetherwith proof of payment of any premiums then owing. At the request of the Bank, the Mortgagor shall deliver all original insurance policies to the Bank. The Mortgagor shall not take out any separate or additional insurance with respect to the Mortgaged Property which is contributing in the event of loss, unless it is properly compatible with all of the requirements of this Paragraph. 4. Taxes and Other Charges. The Mortgagor shall prepare and timely file all federal, state, and local tax returns required to be filed by the Mortgagor and promptly pay and discharge all taxes, assessments, water and sewer rents, and other governmental charges or claims of any kind imposed upon the Mortgagor, the Mortgaged Property, or on any of the Mortgagor's other property before the same shall become in default or become a lien upon such property except forthose, taxes, assessments, and other governmental charges then being contested in good faith bythe Mortgagor by appropriate proceedings and for which the Mortgagor has maintained adequate reserves in the sole judgment of the Bank. The Mortgagor shall submit to the Bank, upon request, an affidavit signed by the Mortgagor certifying that all federal, state, and local tax returns have been filed to date and all real property taxes, assessments, and other governmental charges with respect to the Mortgagor's properties have been paid to date. 5. Escrows. The Mortgagor shall, if requested by the Bank, pay to the Bank at the time of each installment of principal and interest due under any of the Loan Documents, one twelfth (1112) of the annual taxes and assessments levied or assessed against the Mortgaged Property and any premium for applicable insurance, as estimated by the Bank, from time to time, unless the Mortgagor demonstrates to the Bank that it is paying such taxes, assessment or insurance to a holder of a prior Permitted Encumbrance. Such payment shall be held by the Bank to be used by the Bank in payment of such taxes, assessments or insurance premium. If such escrow funds are not sufficient to pay such taxes and assessments, as the same become payable, the Mortgagor shall pay to the Bank, upon request, such additional amounts as the Bank shall estimate to be sufficient to make up any such deficiency. No amount paid to the Bank hereunder shall be deemed to be trust funds but may be commingled with general funds of the Bank, and no interest shall be payable thereon. If the Mortgagor is not required to pay such tax escrows pursuant to this section, the Mortgagor shall provide to the Bank, not later than the last date such payment is due and payable without interest or penalty, official receipted tax bills, canceled checks, or other evidence satisfactory to the Bank evidencing that such taxes and assessments have been paid in a timely manner. 6. Transfer of Title. Without the prior written consent of the Bank in each instance, which consent may be given or withheld in the Bank's sole discretion, the Mortgagor shall not voluntarily or involuntarily cause or permit, any transfer ofthe Mortgaged Property orany portion thereof, whether voluntary, involuntary, by operation of law, or otherwise, nor shall the Mortgagor enter into any agreement or transaction to transfer, or accomplish in form or substance a transfer, of the Mortgaged Property. A "transfer" of the Mortgaged Property includes (i) the direct or indirect sale, transfer or conveyance of the Mortgaged Property or any portion thereof or interest therein; (ii) the execution of an installment sale contract or similar instrument affecting all or a portion of the Mortgaged Property; (iii) the transfer (whether in one transaction or a series of transactions) of stock, partnership or other ownership interests constituting a controlling interest in the Mortgagor (if the Mortgagor is a partnership, joint venture, limited liability company or corporation); and (iv) a lease or leases which, separately or in the aggregate, cover cumulatively more than twenty percent (20%) of the usable space on the Mortgaged Property. RK 1 RglnPl.nrq 1 7. No Liens; Removal of Fixtures. At no time during the term of this Mortgage shall the Mortgagor create or suffer to exist any mortgage, lien, security interest, encumbrance, attachment, levy, distraint, or other judicial process or burden of any kind on the Mortgaged Property or any part thereof, whether superior or inferior to the lien of this Mortgage, without the prior written consent of the Bank, which consent may be given or withheld in the Bank's sole discretion. The Mortgagor shall not remove or suffer to be removed from the Mortgaged Property any fixtures presently or in the future located on the Mortgaged Property (unless such fixtures have been replaced with similar fixtures of equal or greajer utility and value). 8. Maintenance and Repair; Compliance with Laws. The Mortgaged Property shall, at the Mortgagor's own cost and expense, be kept and maintained in good repair, working order, and condition, and in compliance with all applicable laws, ordinances, codes, rules and regulations (collectively, "Legal Requirements") of any federal, state or local governmental entity or authority having jurisdiction (collectively "Governmental Authorities"). The Mortgagor agrees to comply, and to cause its tenants to comply with all Legal Requirements made or promulgated by any Governmental Authority now or hereafter applicable to the Mortgaged Property. The Mortgagor shall from time to time make, or cause to be made, all necessary and proper repairs and replacements required under Legal Requirements, the Leases, or otherwise required to keep the Mortgaged Property in good condition and the Mortgagor shall abstain from and shall not permit the commission of waste on or about the Mortgaged Property. The Mortgagor shall not remove, demolish, materially alter, or discontinue the use of the Mortgaged Property, or permit the Mortgaged Property to become vacant, deserted, or unguarded. The Bank shall have the right, but not the obligation, to enter upon and inspect the Mortgaged Property at any reasonable hour. 9. Damage, Destruction and Condemnation. If all or any part of the Mortgaged Property shall be partially or totally damaged or destroyed, or if title to or the use of the whole or any part of the Mortgaged Property shall be taken or condemned by a competent authority for any public use or purpose, then (i) there shall be no abatement or reduction in the amounts payable by the Mortgagor under the Loan Documents, and the Mortgagor shall continue to be obligated to make such payments; (ii) the Mortgagor shall immediately give notice thereof to the Bank in accordance with the terms of this Mortgage; (iii) the Mortgagor hereby authorizes and directs any affected insurance company or condemning authority to make payment of such proceeds directly to the Bank as its interest appears; and (iv) the Mortgagor hereby authorizes and empowers the Bank to settle, adjust or compromise, any claims for loss, damage, destruction to or condemnation of the Mortgaged Property. The Mortgagor shall pay all costs of collection of insurance proceeds payable on account of such damage or destruction. The Mortgagor shall, at its sole cost and expense, diligently prosecute any condemnation proceeding and shall consult with the Bank, its attorneys, and experts and cooperate with it in the defense of any such proceedings. The Bank shall have the right, in any condemnation proceedings, to do or refrain from doing whatever it deems necessary or convenient. The Mortgagor shall have no claim against the insurance proceeds or condemnation proceeds, or be entitled to any portion thereof, and all rights to insurance or condemnation proceeds are hereby assigned to the Bank to the extent of the Obligations as remain unpaid. The Bank shall have the option, in its sole discretion, of paying or applying all or any part of the insurance proceeds or condemnation proceeds payable to the Bank hereunder to (1) reduction of the Obligations; (ii) restoration, replacement and rebuilding of the Mortgaged Property or (iii) payment to the Mortgagor. 10. Required Notices. The Mortgagor shall immediately notify the Bank of (i) the receipt of notice from any Governmental Authority relating to the Mortgaged Property or alleging a violation of Legal Requirements; (ii) a substantial change in the occupancy or use of all or any part of the Mortgaged Property; (iii) the receipt of any notice from the holder of any Permitted Encumbrance; (iv) the commencement of any litigation affecting or potentially affecting in a material and adverse way the financial condition of the Mortgagor or the value of the Mortgaged Property; or (v) the discovery, discharge or release for which the Mortgagor is or may be responsible under Applicable Environmental Laws (hereinafter defined). 11. Financial Statements. Mortgagor shall so provide (a) if such Mortgagor is an individual, at least once during each period of twelve (12) consecutive months, a personal financial statement of such Mortgagor for a year ending not more than sixty (60) days earlier, in reasonable detail and certified by such Mortgagor to be complete and accurate and (b) if such Mortgagor is not an individual, (i) promptly copies of all annual reports, proxy statements and similar information distributed to shareholders, partners or other owners and of all filings with the Securities and Exchange Commission and the Pension Benefit Guaranty Corporation, (ii) within sixty (60) days after the end of each of its first three fiscal quarters, consolidating and consolidated statements of income and cash flows for the quarter, for the corresponding quarter in the previous fiscal year and for the period from the end of the previous fiscal year, with a consolidating and consolidated balance sheet as of the quarter end, (iii) within ninety (90) days afterthe end of each fiscal year, consolidating and consolidated statements of such Mortgagor's income and cash flows and its consolidating and consolidated balance sheet as of the end of such fiscal year, setting forth comparative figures for the preceding fiscal year and to be ? audited ? reviewed ? compiled by an independent certified public accountant acceptable to the Bank, all such statements to be certified by such Mortgagor's chief financial officer or partner to be correct and in accordance with such Mortgagor's records and to present fairly the results of such Mortgagor's operations and cash flows and its financial position at year end in conformity with generally accepted accounting principles, and (iv) with each statement of income, a certificate executed by such Mortgagor's chief executive and chief financial officers or managing partners (A) stating that the signers of the certificate have reviewed this Mortgage and the operations and condition (financial or other) of such Mortgagor and any subsidiaries during the relevant period and (B) stating that no Event of Default occurred during the period, or if an Event of Default did occur, describing its nature, the date(s) of its occurrence or period of existence and what action such Mortgagor has taken with respect thereto. If no box is checked above, Mortgagor shall supply financial reports immediately upon the Bank's request in the form and number of copies and at the times satisfactory to the Bank. The Mortgagor shall keep and maintain complete and accurate books and records and shall permit representatives or agents of the Bank to examine and audit the Mortgagor's (and its parent's and subsidiaries', if applicable) books, records and financial information and to inspect the Mortgagor's facilities and properties. Promptly upon request of the Bank the Mortgagor shall supply, or cause to be supplied, any additional information respecting the operations, financial or otherwise, of the Mortgagor, each Obligor and shall use its best efforts to cause each lessee of the Mortgaged Property or any material portion thereof as the Bank may from time to time reasonably request. The Mortgagor shall prepare and timely file all federal, state and local tax returns required to be filed by the Mortgagor and shall submit to the Bank a copy of its federal tax return immediately after filing same with the Internal Revenue Service. The Mortgagor shall furnish to the Bank, at its request, certified rent rolls and leases, as applicable, with respect to the Mortgaged Property within ninety (90) days after the end of each fiscal year. 12. Certain Rights and Obligations. Mortgagor agrees that Mortgagee may take such action as Mortgagee deems appropriate to protect the Mortgaged Property or the status or priority of the lien of this Mortgage, including: entry upon the Mortgaged Property to protect the Mortgaged Property from deterioration or damage, or to cause the Mortgaged Property to be put in compliance with any governmental, insurance rating or contract requirements; payment of amounts due on liens having priority over this Mortgage; payment of any tax or charge for purposes of assuring the priority or enforceability of this Mortgage; obtaining, and/or taking such action so as to maintain uninterrupted, insurance on the Mortga ed Pro e i c ti fl insurance); or commencement or defense of any legal action or proceeding to assess I-???tbay or protect the validity or priority of the lien of this Mortgage. On demand, Mortgagor shall reimburse Mortgagee for all expenses in taking any such action, with interest, and the amount thereof shall be secured by, this Mortgage and shall, to the extent permitted by law, be in addition -to the maximum amount of the Obligations evidenced by the Loan Documents. H. Environmental Representations and Covenants. 1. applicable Environmental Laws. a. The term "Applicable Environmental Laws" means (i) all Legal Requirements of any Governmental Authority pertaining to the preservation or enhancement of the quality of the environment or regulating or restricting the use, transfer, storage, disposal, release, discharge, production or remediation of any substance or material deemed by such Governmental Authority to be hazardous to the environment; (ii) any and all laws, regulations, and executive orders, whether federal, state or local, pertaining to environmental matters, as the same may now exist or hereafter exist or be amended or supplemented from time to time. Any terms mentioned in this Mortgage which are defined in any Applicable Environmental Law shall have the meanings ascribed to such terms in said laws; provided, however, that if any of such laws are amended so as to broaden any term defined therein, such broader meaning shall apply subsequent to the effective date of such amendment. b. The Mortgagor represents and warrants that neither the Mortgagor nor the Mortgaged Property are in violation of any Applicable Environmental Law, or subject to any existing, pending, or threatened investigation or inquiry by any Governmental Authority pertaining to an alleged violation of any Applicable Environmental Law. 2. Covenants. The Mortgagor shall not cause or permit the Mortgaged Property to be in violation of, or do anything which would subject the Mortgagor or the Mortgaged Property to any remedial obligations under, any Applicable Environmental Law, and shall promptly notify the Bank in writing of any existing, pending, or threatened investigation or inquiry by any Governmental Authority in connection with any Applicable Environmental Law: a. The Mortgagor shall immediately take all steps necessary to determine whether hazardous materials have been disposed of or otherwise released or discharged on, from or affecting the Mortgaged Property; b. The Mortgagor will not install, suffer, or permit in the Mortgaged Property any substance deemed hazardous by federal or state regulations. If any such materials are found to be present in the Mortgaged Property, the Mortgagor agrees to remove the same promptly upon discovery at its sole cost and expense; c. The Mortgagor shall duly file or cause to be duly filed with all Governmental Authorities having jurisdiction such reports or information returns as may be required or appropriate under all Applicable Environmental Laws; d. If any lien or judgment shall be filed with respect to the Mortgaged Property arising from a violation of Applicable Environmental Laws, then the Mortgagor shall, within thirty (30) days from the date that the Mortgagor is given notice of such lien or judgment (or within such shorter period of time if any Governmental Authority has commenced steps to have the Mortgaged Property sold), pay the claim and remove the lien from the Mortgaged Property; e. If there shall occur any releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of hazardous materials on, from or affecting the Mortgaged Property, or otherwise caused or permitted by the Mortgagor in violation of Applicable Environmental Laws, the Mortgagor shall promptly clean it up in accordance with the provisions of all Applicable Environmental Laws and to the satisfaction of the Bank; and 3. Right to Inspect and Cure. The Bank shall have the right to conduct or have conducted by its agents or contractors such environmental inspections, audits, and testing as the Bank shall deem necessary or advisable from time to time at the sole cost and expense of the Mortgagor. The cost of such tests shall be added to the Obligations and shall be secured by this Mortgage. If the Mortgagor fails to comply with any Applicable Environmental Law, then the Bank may, at its sole discretion, in addition to any of its other remedies under this Mortgage, cause the Mortgaged Property to be in compliance with such laws and the cost of such compliance shall be added to the sums secured by this Mortgage and shall bear interest at the Default Rate (hereafter defined). 4. Environmental Easement. The Mortgagor hereby grants and conveys to the Bank an irrevocable easement to enter on and upon the Mortgaged Property at any time and from time to time for the purpose of making such audit tests, inspections, and examinations, including subsurface exploration and testing, as the Bank deems necessary, convenient, or proper to determine whether the ownership, use, and operation of the Mortgaged Property and the conduct of the activities engaged in thereon are in compliance with federal, state, and local environmental laws, rules, and regulations. The Bank, or its designated agents, shall have the right to inspect and copy all of the Mortgagor's records relating to environmental matters and to enter all buildings or facilities of the Mortgagor for such purpose. In confirmation of the Bank's right to inspect and copy all of the Mortgagor's records relating to environmental matters and to secure the Mortgagor's obligations to the Bank in connection with the Loan Documents, and under this Environmental Inspection Easement, the Mortgagor hereby grant to the Bank a continuing security interest in and to all of the Mortgagor's existing and future records with respect to environmental matters, whether or not located at the Mortgaged Property or elsewhere, whether or not in the possession of the Mortgagor or some third party (including any federal, state, or local agency or instrumentality), and whether or not written, photographic, or computerized, and the proceeds and products thereof. The Bank, or its designated agent, may interview any or all of the Mortgagor's agents and employees regarding environmental matters, including any consultants or experts retained by the Mortgagor, all of whom are directed to discuss environmental issues fully and openly with the Bank or its designated agent and to provide such information as may be requested. All of the costs and expenses incurred by the Bank with respect to the audits, tests, inspections, and examinations which the Bank may conduct, including the fees of the engineers, laboratories, and contractors, shall be paid by the Mortgagor. The Bank may, but shall not be required to, advance such costs and expenses on behalf of the Mortgagor. All sums so advanced shall bear interest at the highest rate provided with respect to the Loan Documents. a. The easement granted hereby shall exist and continue until such time as all sums owed by the Mortgagor to the Bank in connection with the Loan Documents or otherwise have been repaid in full and the mortgage granted to the Bank to secure the Loan Documents has been released of record. A release of this Mortgage shall evidence a termination of the easement. b. The Mortgagor acknowledges that no adequate remedy at law exists for a violation of the easement granted hereby by equitable writ or decree, including temporary and preliminary injunctive relief. In the event the Bank is required to enforce it hereunder the Mortgagor shall pay all of the Bank's costs and expenses in connection therewith, including all attorney's fees incurred by the Bank. BK 1896PGO652 c. This easement shall be assignable and shall be considered assigned to whomever holds the indebtedness secured by the mortgage. d. THe exercise of the rights granted hereunder shall not constitute the Bank a "mortgagee in possession" with respect to the Mortgaged Property. e. This easement is intended to be and shall be construed as an interest in the Mortgaged Property and as an easement in gross. It is not intended to be a personal right of the Bank or a mere license. 1. Indemnification. The Mortgagor hereby agrees to and does hereby indemnify, protect, defend, and hold harmless the Bank, and any entity which "controls" the Bank, within the meaning of Section 15 of the Securities Act of 1933, as amended, any member, officer, director, official, agent, employee, or attorney of the Bank, and their respective heirs, successors, and assigns (collectively the "Indemnified Parties"), from and against any and all losses, damages, expenses, or liabilities of any kind or nature, and from any suits, claims, or demands, including counsel fees incurred in investigating or defending such claim, suffered by any of them and caused by, relating to, arising out of, resulting from, or in any way connected with the Loan Documents or the transactions contemplated therein (unless determined by a final judgment of a court of competent jurisdiction to have been caused solely by the gross negligence or willful misconduct of the Indemnified Parties). In case any action shall be brought against the Bank or any other Indemnified Party in respect to which indemnity may be sought against the Mortgagor, the Bank or such other Indemnified Party shall promptly notify the Mortgagor; provided however, that the failure to so notify the Mortgagor shall not relieve the Mortgagor of any liability it may have under these indemnification provisions or from any liability which it may otherwise have to the Bank or such other Indemnified Party. Promptly following such notification, the Mortgagor shall assume the defense thereof, including the employment of counsel selected by the Mortgagor and satisfactory to the Bank or such other Indemnified Party, and the payment of all costs and expenses relating thereto. The Bank shall have the right, at its sole option, but at the Mortgagor's sole cost and expense, to employ separate counsel in any such action and to participate in the defense thereof. The Mortgagor shall not be liable for any settlement of any such action unless the Mortgagor consents, which consent shall be reasonably given, but if settled with the Mortgagor's consent, or if there be a final judgment for the claimant in any such action, the Mortgagor agrees to indemnify and hold harmless the Bank from and against any loss or liability by reason of such settlement or judgment. The provisions of this Section shall survive the repayment of the Obligations. J. No Release; No Waiver. Any extension of the time for payment, or any modification of the amortization of the sums secured by this Mortgage or any release of any Obligor or all or any part of the Mortgaged Property, granted by the Bank to the Mortgagor or any other Obligor shall not operate to release the liability of the Mortgagor, any other Obligor under the terms of the Loan Documents or this Mortgage or any other collateral for the Obligations. Any forbearance by the Bank in exercising any right or remedy hereunder or otherwise afforded by applicable law shall not be a waiver of, or preclude the exercise of, any right or remedy. K. Events of Default. The occurrence of any one of the following shall constitute an event of default ("Event of Default") under this Mortgage: 1. Breach. A breach by the Mortgagor or any Obligor of any term, obligation, provision, covenant, representation orwarranty, arising under (i) this Mortgage or any other Loan Document, including failure to pay when due (whether at stated maturity, by acceleration or otherwise) the Obligations or any portion thereof orthere occurs any event which after notice or lapse of time, or both, will permit such acceleration; (ii) any present or future agreement with or in favor of the Bank or any Affiliate, including the failure to make any payment when due (whether at stated maturity, by acceleration or otherwise) or any portion thereof or there occurs any event which after notice or lapse of time, or both, will permit such acceleration; or(iii) any present orfuture agreement or instrument for borrowed money or otherfinancial accommodations with any person or entity; 2. Bankruptcy; Insolvency. (i) The Mortgagor or any Obligor commences any bankruptcy, reorganization, debt arrangement, or other case or proceeding under the United States Bankruptcy Code or under any similar foreign, federal, state, or local statute, or any dissolution or liquidation proceeding, or makes a general assignment for the benefit of creditors, or takes any action for the purpose of effecting any of the foregoing; (ii) any bankruptcy, reorganization, debt arrangement, or other case or proceeding under the United States Bankruptcy Code or under any similar foreign, federal, state or local statute, or any dissolution or liquidation proceeding, is involuntarily commenced against or in respect of the Mortgagor or any Obligor and such involuntary petition is not dismissed within 30 days or an order for relief is entered in any such proceeding; (iii) the appointment, or the filing of a petition seeking the appointment, of a custodian, receiver, trustee, or liquidatorfor the Mortgagor or any other Obligor or any of its property, or the taking of possession of any part of the property of the Mortgagor or any other Obligor at the instance of any governmental authority; or (iv) the Mortgagor or any other Obligor becomes insolvent (however defined), is generally not paying its debts as they become due, or has suspended transaction of its usual business; 3. Death; Reorganization. The death or incompetence (if an individual) or the dissolution, merger, consolidation, or reorganization of the Mortgagor or any other Obligor; 4. Material Misstatement. Any statement, representation or warranty made in or pursuant to this Mortgage or any other Loan Document or to induce the Bank to accept this Mortgage or to enter into or accept any other Loan Document shall prove to be untrue or misleading in any material respect or, if upon the date of execution of this Mortgage, there shall have been any materially adverse change in any of the facts disclosed in any financial statement, representation or warranty that was not disclosed in writing to the Bank at or prior to the time of execution hereof; 5. Additional Debt; Granting of Security Interest. The Mortgagor or any Obligor (i) incurs or assumes additional debt other than debt incurred for normal consumer purposes, debt to the Bank or an Affiliate or trade debt in the ordinary course of its business; or (ii) creates, permits or grants any lien or security interest in any of its property on which the Bank has a lien or security interest; 6. Entry of Judgment. The filing, entry, or issuance of any judgment, execution, garnishment, attachment, distraint, or lien against the Mortgagor or any Obligor or its property; the entry of any order enjoining or restraining the Mortgagor or any Obligor or restraining or seizing any property of the Mortgagor or any Obligor or the Mortgagor or any Obligor is convected of a felony; 7. Transfer of Assets. The Mortgagor transfers all or any part of the Mortgaged Property or the Mortgagor or any other Obligor transfers or sells all or substantially all of its assets, without the prior written consent of the Bank; 8. Loan Documents. Any Loan Document ceases to be in full force and effect or the validity or enforceability thereof is contested by any Obligor or any representative thereof; or 9. Pension Plan; Change in Management. Any pension plan of any Mortgagor or Obligor fails to comply with applicable law or has vested unfunded liabilities that, in the opinion of the Bank, might have a material adverse effect on any Mortgagor's or Obligor's ability to repay its ON% 1896PGO658 debts; there occurs any change in the management of any Mortgagor or Obligor which is, in the opinion of the Bank materially adverse to its interest and which remains uncorrected for thirty (30) days after the B9nk notifies the Mortgagor or the respective Obligor of its opinion. Remedies. Upon and following the occurrence of an Event of Default: 1. Advances. The Bank shall have the right, at its election, but not the obligation, to make any payment or expenditure and to take any action which the Mortgagor should have made or taken or which the Bank deems advisable to protect the security of this Mortgage or the Mortgaged Property. Such action shall be without prejudice to any of the Bank's rights or remedies available under this Mortgage or the other Loan Documents or otherwise at law or in equity. All such sums, as well as costs and expenses, advanced by the Bank shall be immediately due from the Mortgagor to the Bank, shall become part of the Obligations secured by this Mortgage and the other Loan Documents, and shall bear interest (including after any judgment obtained on account of any of the Obligations) at the applicable rate provided in the Loan Documents in effect after maturity or default (the "Default Rate") until repayment in full to the Bank. The Mortgagor agrees that all of the Obligations and other obligations of the Mortgagor to the Bank under the Loan Documents, including obligations to reimburse the Bank for advances, shall survive the entry of any judgment lien on account of the Obligations or any judgment in mortgage foreclosure, whether such obligations arise before or after the entry of judgment. 2. Other Remedies. The Bank shall have the right, at its election, to take any one or more of the following actions: (i) to declare all the Obligations secured by this Mortgage to be immediately due and payable (except that upon the occurrence of any Event of Default described in Paragraph K(2), such Obligations shall automatically be due and payable without notice or demand); (ii) to obtain judgment for the Obligations together with interest on such judgment at the Default Rate until payment in full is received by the Bank and to obtain execution upon the Mortgaged Property or other property of the Mortgagor on account of such judgment; (iii) to obtain possession of the Mortgaged Property and (with or without obtaining possession) to enforce the Leases, collect the Income and rent the Mortgaged Property, either in its name or in the name of the owner, and apply the Income and rents, at the Bank's option, to the payment of any charges and expenses of the Mortgaged Property in such order and amounts as the Bank in its sole discretion may determine, being accountable only for such rents and profits collected by it while in possession; (iv) to foreclose this Mortgage; (v) to obtain appointment of a receiver of the Mortgaged Property without the necessity of proving either inadequacy of the security or insolvency of the Mortgagor or any other Obligor, and the Mortgagor and each such person waive such proof and consent to the appointment of such receiver; (vi) to apply on account of the Obligations, in any order and amounts as the Bank may determine and whether or not a deficiency action shall have been instituted, any unexpended money still retained by the Bank that was paid by the Mortgagor to the Bank for the payment of, or as security for the payment of, taxes, assessments, municipal or governmental rates, charges, impositions, liens, water or sewer rents, or insurance premiums, if any, or in order to secure the performance of some act by the Mortgagor; (vii) to collect from the Mortgagor monthly, in advance, so long as the Mortgagor remains in possession of all or any part of the Mortgaged Property, the fair and reasonable market value for the Mortgagor's use..and occupation of the Mortgaged Property; or (viii) to exercise all rights of a secured party under the Uniform Commercial Code. If the Obligations, as evidenced by a single note or other written instrument shall exceed the amount secured by this Mortgage, or as evidenced by a combination of same that singularly or in any part collectively may be less than said secured amount but combined exceed said secured amount, the Bank, in any foreclosure hereof, shall have the right to sue and collect the excess in the same action as commenced for the foreclosure hereof, and recover a money judgement for said excess with all the rights attendant thereto, including the issuance of an execution to the Sheriff for collection thereof, and Mortgagor and any Obligor hereby waives any defense based upon a claim that in doing so, the Bank is splitting its cause of action if it seeks to foreclose this Mortgage for part of the Obligations and recover at law for another part. 3. Confession of Judgment for Possession. THE FOLLOWING PARAGRAPH SETS FORTH nTTr)PMI=v Tr) nnNFr=.qs .n rnr.mPNT AGAINST THE MORTGAGOR. IN GRANTING THIS W FOR THE PURPOSE OF OBTAINING POSSESSION OF THE MORTGAGED PROPERTY UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT, MORTGAGOR HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD, IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR MORTGAGOR, AS WELL AS FOR THE PERSONS CLAIMING UNDER, BY, OR THROUGH MORTGAGOR, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST MORTGAGOR AND ALL PERSONS CLAIMING UNDER, BY, OR THROUGH MORTGAGOR, IN FAVOR OF THE BANK FOR THE RECOVERY BY THE BANK OF POSSESSION OF THE MORTGAGED PROPERTY, FOR WHICH THIS MORTGAGE (OR A COPY THEREOF VERIFIED BY AFFIDAVIT) SHALL BE A SUFFICIENT WARRANT; WHEREUPON A WRIT OF POSSESSION OF THE MORTGAGED PROPERTY MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT STAY OF EXECUTION, MORTGAGOR HEREBY RELEASING AND AGREEING TO RELEASE THE BANKAND ANY SUCH ATTORNEY FROM ALL PROCEDURAL ERRORS AND DEFECTS WHATSOEVER IN ENTERING SUCH ACTION OR JUDGMENT OR IN CAUSING SUCH WRIT OR PROCESS TO BE ISSUED OR IN ANY PROCEEDING THEREON OR CONCERNING THE SAME, PROVIDED THAT THE BANK SHALL HAVE FILED IN SUCH ACTION AN AFFIDAVIT MADE ON THE BANK'S BEHALF SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF SUCH JUDGMENT ACCORDING TO THE TERMS OF THIS INSTRUMENT, OF WHICH FACTS SUCH AFFIDAVIT SHALL BE PRIMA FACIE EVIDENCE. IT IS HEREBY EXPRESSLY AGREED THAT IF FOR ANY REASON AFTER ANY SUCH ACTION HAS BEEN COMMENCED, THE SAME SHALL BE DISCONTINUED, MARKED SATISFIED OF RECORD, OR BE TERMINATED, OR POSSESSION OF THE MORTGAGED PROPERTY REMAIN IN OR BE RESTORED TO MORTGAGOR OR ANYONE CLAIMING UNDER, BY, OR THROUGH MORTGAGOR, THE BANK MAY, WHENEVER AND AS OFTEN AS THE BANK SHALL HAVE THE RIGHT TO TAKE POSSESSION AGAIN OF THE MORTGAGED PROPERTY, BRING ONE OR MORE FURTHER ACTIONS IN THE MANNER HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE MORTGAGED PROPERTY AND TO CONFESS JUDGMENT THEREIN AS HEREINABOVE PROVIDED, AND THE AUTHORITY AND POWER ABOVE GIVEN TO ANY SUCH ATTORNEY SHALL EXTEND TO ALL SUCH FURTHER ACTIONS IN EJECTMENT AND CONFESSION OF JUDGMENT THEREIN AS HEREINABOVE PROVIDED WHETHER BEFORE OR AFTER AN ACTION OF MORTGAGE FORECLOSURE IS BROUGHT OR OTHER PROCEEDINGS IN EXECUTION ARE INSTITUTED UPON THIS MORTGAGE ORANY INSTRUMENT THEN EVIDENCING ANY OF THE OBLIGATIONS, AND AFTER JUDGMENT THEREON OR THEREIN AND AFTER A JUDICIAL SALE OF THE MORTGAGED PROPERTY. BKI896PGO654 4. Uniform Commercial Code Disposition. With respect to that portion of the Mortgaged Property governed by the Uniform Commercial .Code, the Bank shall have the right, upon five (5) calendar days' prior written notice to the Mortgagor (or one (1) day notice by telephone with respect to Mortgaged Property that is perishable or threatens to decline rapidly in value), which the Mortgagor hereby acknowledges to be sufficient, commercially reasonable and proper, to sell, lease or otherwise dispose of any or all of the Mortgaged Property at any time and from time to time at public or private sale, with orwithout advertisement thereof, and apply the proceeds of any such sale first to the Bank's expenses in prpparing the Mortgaged Property for sale (including reasonable attorneys' fees) and second to the complete satisfaction of the Obligations. The Mortgagorwaives the benefit of any marshaling doctrine with respect to the Bank's exercise of its rights hereunder. The Mortgagor grants a royalty-free license to the Bank for all patents, service marks, trademarks, trade names, copyrights, computer programs and other intellectual property and proprietary rights to permit the Bank to exercise all rights granted to the Bank under this Paragraph. The Bank or anyone else may be the purchaser of any or all of the Mortgaged Property so sold and thereafter hold such Mortgaged Property absolutely, free from any claim or right of whatsoever kind, including any equity of redemption of the Mortgagor, any such notice, right or equity of redemption being hereby expressly waived and released. 5. No Marshaling. In the event of a foreclosure or other judicial sale of the Mortgaged Property, the Mortgaged Property may be sold in one or several parcels in any order the Bank, in its sole discretion, may determine and without regard to principles of marshaling. 6. Remedies Cumulative; No Waiver. The rights, powers and remedies hereunder and under the other Loan Documents and cumulative and concurrent, and are not exclusive of any other rights, powers or remedies available to the Bank. No failure or delay on the part of the Bank in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. 7. Continuing Enforcement of the Loan Documents. If, after receipt of any payment of all or any part of the Obligations, the Bank is compelled or agrees, for settlement purposes, to surrender such payment to any person or entity for any reason, then this Mortgage and the other Loan Documents shall continue in full force and effect or be reinstated, as the case may be. The provisions of this Paragraph shall survive the termination of this Mortgage and the other Loan Documents and shall be and remain effective notwithstanding the payment of the Obligations, the release of any security interest, lien or encumbrance securing the Obligations or any other action which the Bank may have taken in reliance upon its receipt of such payment. 8. Right of Setoff. The Bank shall have the right to set off against the Obligations any property held in a deposit or other account with the Bank or any of its Affiliates or otherwise owing by the Bank or any of its Affiliates in any capacity to Mortgagor or any Obligor. Such set-off shall be deemed to have been exercised immediately at the time the Bank or such Affiliate elect to do so. M. Miscellaneous. 1. Notices. Any demand or notice hereunder or under any applicable law pertaining hereto shall be in writing and duly given if delivered to Mortgagor (at its address on the Bank's records) or to the Bank (at the address on page one and separately to the Bank officer responsible for Mortgagor's relationship with the Bank). Such notice or demand shall be deemed sufficiently given for all purposes when delivered (i) by personal delivery and shall be deemed effective when delivered, or (ii) by mail or courier and shall be deemed effective three (3) business days after deposit in an official depository maintained by the United States Post Office for the collection of mail or one (1) business day after delivery to a nationally recognized overnight courier service (e.g., Federal Express). For any notice under 42 Pa C.S.A. §8141 being delivered by personally delivery, such personally delivered notice must be delivered to the Bank at: M&T Bank, One M&T Center, Fountain Plaza, Buffalo, New York, attn: Collateral and Documentation Department. Notice by e-mail is not valid notice under this or any other agreement between Mortgagor and the Bank. 2. Costs, Expenses and Professional Fees. Whether or not the transactions contemplated by this Mortgage or any of the other Loan Documents are fully consummated, the Mortgagor shall promptly pay (or reimburse, as the Bank may elect) all costs and expenses which the Bank has incurred or may hereafter incur in connection with the negotiation, preparation, reproduction, interpretation, perfection, protection of the Mortgaged Property, administration and enforcement of this Mortgage or any of the other Loan Documents, the collection of all amounts due under the Loan Documents, and all amendments, modifications, consents or waivers, if any, to the Loan Documents. Such costs and expenses shall include, without limitation, the fees and disbursements of counsel to the Bank (including the Bank's in-house counsel), the costs of appraisals, searches of public records, costs of filing and recording documents with public offices, internal or external auditor examination fees and costs, stamp, excise and other taxes, the fees of the Bank's accountants, consultants or other professionals, costs and expenses from any actual or attempted sale of all or any part of the Mortgaged Property, and for the care and preparation for sale of the Mortgaged Property (including insurance costs) and defending and asserting the rights and claims of the Bank in respect thereof, by litigation or otherwise. The Mortgagor's reimbursement obligations under this Paragraph shall survive any termination of the Loan Documents. Costs, expenses and fees shall accrue interest at the highest default rate set forth in the respective Loan Documents evidencing the Obligations from the date of demand until payment is actually received by the Bank. Each such cost, expense and fees and any interest thereon shall constitute part of the Obligations and be secured by this Mortgage and may be added to the judgment in any suit brought by the Bank against Mortgagor on this Mortgage. 3. Governing Law; Jurisdiction. This Mortgage has been delivered to and accepted by the Bank and will be deemed to be made in the Commonwealth of Pennsylvania. Unless provided otherwise under federal law, this Mortgage will be interpreted in accordance with the laws of the Commonwealth of Pennsylvania excluding its conflict of laws rules. MORTGAGOR HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COMMONWEALTH OF PENNSYLVANIA IN A COUNTY OR JUDICIAL DISTRICT WHERE THE BANK MAINTAINS A BRANCH AND CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT MORTGAGOR'S ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS MORTGAGE WILL PREVENT THE BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST MORTGAGOR INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF MORTGAGOR WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION. Mortgagor acknowledges and agrees that the venue provided above is the most convenient forum for both the Bank and Mortgagor. Mortgagor waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Mortgage. 4. Integration; Amendment. This Mortgage and the other Loan Documents constitute the sole agreement of the parties with respect to the subject matter hereof and thereof and supersede all oral negotiations and prior writings with respect to the subject matter hereof and thereof. No amendment of this Mortgage, and no waiver of any one or more of the provisions hereof shall be effective unless set forth in writing and signed by the parties hereto. No course of dealing or other conduct, no oral agreement or representation made by the Bank or usage of trade SKI896PGO655 shall operate as a waiver of any right or remedy of the Bank.. No single, partial or delayed exercise by the Bank of any right or, remedy shall .preclude full and timely exercise by the Bank at anytime of any right or rl;medy of the Bank without notice or demand, at the Bank's sole option. 5. Successors and Assigns. This Mortgage (i) shall be binding upon the Mortgagor and the Bank and, where applicable, their respective heirs, executors, administrators, successors and permitted assigns; and (ii) shall inure to the benefit of the Mortgagor and the Bank and, where applicable, their respective heirs, executors, administrators, successors and permitted assigns; provided, however, that the Mortgagor may not assign its, rights or obligations hereunder or any interest herein without the prior written consent of the Bank, and any such assignment or attempted assignment by the Mortgagor shall be void and of no effect with respect to the Bank. The Bank may from time to time sell or assign, in whole or in part, or grant participation in some or all of the Loan Documents or the obligations evidenced thereby. The Mortgagor authorizes the Bank to provide information concerning the Mortgagor to any prospective purchaser, assignee or participant. 6. Severability and Consistency. The illegality, unenforceability or inconsistency of any provision of this Mortgage or any instrument or agreement required hereunder shall not in any way affect or impair the legality, enforceability or consistency of the remaining provisions of this Mortgage or any instrument or agreement required hereunder. The Loan Documents are intended to be consistent. However, in the event of any inconsistencies among any of the Loan Documents, such inconsistency shall not affect the validity or enforceability of any Loan Document. The Mortgagor agrees that in the event of any inconsistency or ambiguity in any of the Loan Documents, the Loan Documents shall not be construed against any one party but shall be interpreted consistent with the Bank's policies and procedures. In this Mortgage, the singular includes the plural and the plural the singular; references to statutes and rules are to be construed as including all statutory provisions consolidating, amending or replacing the statute referred to; the word "or" shall be deemed to include "and/or", the words "including", "includes" and "include" shall be deemed to be followed by the words "without limitation"; and references to sections or exhibits are to those of this Agreement unless otherwise indicated. 7. Joint and Several Liability. In the event that the Mortgagor consists of more than one person or entity, the obligations hereunder (including performance obligations) of each such person or entity shall be joint and several and the word "Mortgagor" means each of them, any of them or all of them. 8. Judicial Proceeding; Waivers. THE MORTGAGOR AND THE BANK ACKNOWLEDGE AND AGREE THAT (1) ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR INSTITUTED BY THE BANK OR THE MORTGAGOR OR ANY SUCCESSOR OR ASSIGN OF THE BANK OR THE MORTGAGOR, ON OR WITH RESPECT TO THIS MORTGAGE, ANY OTHER LOAN DOCUMENT, THE MORTGAGED PROPERTY OR THE DEALINGS OF THE PARTIES WITH RESPECT HERETO, OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY AND EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY; (ii) EACH WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; AND (iii) THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS MORTGAGE AND THE BANK WOULD NOT EXTEND CREDIT TO THE MORTGAGOR IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS MORTGAGE. IN WITNESS WHEREOF, the Mortgagor, intending to be legally bound hereby, has executed and sealed this Mortgage on the day and year first above written. Richa D. Crider Donna M. Crider ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS. / On the 1 day of Lk: \ . , in the year 2005, before me, the undersigned Notary Public, personally appeared RICHARD D. CRIDER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within said instrument, and who acknowledged that he/she executed the same for the purposes therein contained. seal t e day',and year aforesaid. Notaw ,N 1K11310srty A, Ira9mollNoMy Public ch"icrburg Moro, Cumberlud County MY Co M Expires Aug. 8, M BKI896PGO656 ACKNOWLEDGMENT COMMONWEAL. j OF PENNSYLVANIA ) SS. COUNTY On the day of (s ?1 in the year 2005, before me, the undersigned Notary Public, personally appeared DONNA M. CRIDER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within said instrument, and who acknowledged that he/she executed the same for the purposes therein contained. WITNE S . "y hand.an0,seal t e day and year a s c) ?? %hQ i'•V M O' " A Piotetial Sea! Public A. In?oll, Notary Bow, Cumberland Con „ a rr?``r, My ^« Expirm Aug. 8, 2005ry BK1896PG8557 SCHEDULE A DESCRIPTION OF PREMISES commonly known as: 555 Bosler Avenue Lemoyne, Pennsylvania 17043 and 601 Pear Street Lemoyne, Pennsylvania 17043 BULK 1896PGO658 01/14/2005 16:06 N0.963 •001 006 Parcel 1 12-21-267-397 sort ?. TMS DEED 12-21-265-211 E MADE the /$A'y of 0 -"If in the year of our Lord one thousand nine hundred and ninety-four (1994) 139MEN DAUPHIN NATIONAL BANK, a Pennsylvania Corporation with its principal office in Dauphin County, Commonwealth of Pennsylvania, GRANTOR. AND RICHARD D. CRIDER and DONNA M. CRIDER, husband and wife. GRANTERS, WITNIMSIg Et, that In consideration of TWO HUNDRED FIVE THOUSAND AND N01100 (6205,000.00) DOLLARS, In hand paid, the receipt whereof is herby acknowkdgcd; the said Grantor does hereby grant and convey to the said Grantees, their Heirs and Assigns, the following described properly io-vvit: ALL THAT CERTAIN piece or parcel a land, with the Improvements thereon, known ad Lot I and situate in the Borough of Lemoyne. County of Cumberland sod Commonwealth of Pennsylvania, being more particularly bounded and described in aceordance with a Plat of Survey prcpaed by Remold S. Rallensperger, Registered Land Surveyor No. 12229•E, of D. P. Raffenaparger, Associates, Engineers end Surveyors, Comp Hill, Pennsylvania, dated November 25, 1995; as fOllowC BEGINNING at a concrete monument which is located on the northerly right of way line of pear Alley (15 feet wide), said monur. I being at a distance of 320 feet measured in is wemwly direction olwrg laid alley from a stake, at the interacction of the northerly line of said alley with the wenerly line of Fifth Street extended; thence, on a line along lamb now or formerly or Mary E. Danner, North 38 degraa 33 minutes Went, 30 feet to a concrete monument;, thence continuing along lands of Mary U. Donner, on a line parallel with said alley, South 51 dagroes Cis minutes West, 30 feet to a point; thence along lands now or lormarly of Franklinlk. Shaffer. John S. Kogut, and Bruce I. Kogan, Trustees under Agreement of Trust dated May 21, 1976 with Franklin IL Shaffar, Settlor, on the continuing line parallel to said alley, South 51 da rasa 05 minutca West, 200 feet to an iron pin; thence along lands now or formerly of H. Mark Come and Terry J. Cue, North 39 degrees 55 minutes West, 21.63 feet to a point; thence continuing along lands of H. Mark Case and eo6z 10B reef 892 BK1896PGO659 01/14/2005 16:06 NO.963 D02 ."O'w Terry J. Case, South 53 degrees 52 minutes 15 seconds West, 195.56 fat to an iron pin; thence continuing along lands now or formerly of H. Marls Case and Terry J. Cane, South 58 degrees 44 minutes 50 seconds West, 50.09 feet to an von pin; thence along right of way for footbridge over tracks of Consolidated Rail Corporation, North 33 degrees 27 minutes 10 secondis West, 85.13 fat to an iron pin; then= along lands now or formerly of Consolidated Rail Corporation on a line parallel to the railroad tracks, North 53 degrees 32 minutes 10 seconds Sari, 835.75 feet to an iron pin; (home Along lands now or formerly of Roland W. Bair and Barbara L Bair, South 39 deyaat 05 minutes 10 saepnds East, 95.82 feet to an Iron pin; thence continuing on the line, South 39 degrees 05 minutes 10 seconds Bast, 8.71 feet to a point; thence along land now or formerly of Liquid Carbonic Corporation, by a curve having a radio of 1,4S1.00 feet, an arc distance of9.51 ket to an iron pin. thence continuing along lands of Liquid Carbonic Corporation, South 38 degrees 35 minutes 30 eeeonds East, 30.92 feel to a railroad spike; thence along the northerly right of way line of Pear Alloy, South 51 degrees 05 minutes West, 308.62 feet to a concrete monument, the place of BEGINNING. CONTAINING 92,500 square feet, more or less, or 2.123 acres, more or less. BEING THE SWE PREMISES which Franklin R. Shaffer and Patricia K.L. Shaffer, Tnutees, under an Asreement of Tnat dated h/ay Z. 1976, with Franklin R. Shaffer, Settler, by their Deed dated and recorded November 27,1992, In the Office of the Recorder of Deeds in and for Cumberland County, Pa irwiri anis, in Dead Rook 35-Z, Page 1190, granted and conveyed unto Dauphin National Bank, a Pennsylvania corporation, Grantor herein. TRACT NO-2 ALL THAT CERTAIN lot or parcel of ground situate in the Borough of Lemoyne. County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the northerly Hot of a fifteen foot alley, Said poilit being at a distance of three hndred seventy (370) feet massurad in a westerly direction along slid alley from a suite, at the intersection of the northerly line of aid alley with the westerly line of Fifth Street wended. thence along said alley South 31 degrees 05 minutes west, two hundred (200) feet to an iron pin; thence along lands now or formerly of the Pennsylvania Railroad Company North 38 degrees 55 minutes West, fifty (5(j) feet to a point; thence along lands of this Pennsylvania Railroad Company on a lino parallel with said line of alloy North 51 degrees 05 minutes East, two hwhdred (200) feel to a point; thence along other lands of the Lemoyne Trust Company South 36 degreza 55 minutes Fast, fifty (50) foci to a point, the place of BEGINNING. HAVING THEREON ERECTED a cement block factory building known and numbered as 601 Bosler Avenue, Rear, Lemoyne, Pennsylvania. BEING Tilt SAME PREMISES which Franklin R. Shaffer and Patricia K.L Shaffer, Trwleea, under an Agreement of Trial dated May 21. 1976, with Franklin R. Shaffer. Setllor, by their Deed dated and recorded November 27. 1994 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Hook 35-4 Page 1200, granted and conveyed unto Dauphin National Bank, a Pennsylvania corporation, Grantor herein. boot iQ8 fAcf $43 BKI896PGO660 01/14/2005 16:06 MMQ NO.3. ALL that certain tract of land with the improvements thereon emclid situate in the 1loyough of Lemoyne, Cumberland County, Pennsylvania, bounded and described as follows: BBINC W No. 121, Section 'D•, in a Plan of Lots known as Plan No. 1, Riverton, Pemsylvania; said Plan being recorded in the Office of the Recorder of Deeds for Cumberland County In Deed Book "D", Volume 4, Page 40. SAID Lot No. 121, Section "D", fronts 40 feet on Beeler Avenue and extends beck 150 feet to an alley. HAVING THER$ON ERECTED a commercial building known as and numbered 549 Bosley Avenue, Lemoyne, Pen mylvanla. TIEING T119 GAME PRO41693 which Franklin R. Shaffer and Patricia K.i.. Shaffer, Trustees, under an Agreement of Ttmt dated May 21, 1976, with Franklin R. Shaffer, Senior, by their Deed dated and recorded November 27, 1992, in the ORiea of the Reorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book 33.7, Page 1195, granted and conveyed onto Dauphin National Bank, a Pennsylvania amp., talon, Grantor herein. AND The said Grantor Will Specially WARRANTAND FOREVER DEFEND the property hereby conned. IN WITNUS WHIjOF, the Grantor ban caused this Deed to be signed by Its Presidenk and also attested to by its Secretory, and Its Corporate Seal to be hereunto axed, the day and yaw firm above written. SIGrM, S13ALBD AND DMJVERBD IN THE PRdEmcg OF ATIESTt $eeredry DAUPHIN NATIONAL BANS laY• ' (Vice) Prealdent fill 11990 i* 108 FACE 844 gay: s?s?o M let 5 N NO. %3 b03 ti i ft,&,,. Bx1896PG466I 01/14/2005 16:06 k1- A BKI896K0662 • NO. %:3 W4 C-OMMONWEALTR OF PENNSYLVANIA ) COUNTY OF On Ihis."Ibb -1,1" d y of A.D' l4 4, before me, a Notary Public, thc'urtdctalgrted officer; pclaar y' eat who acknowledged him" w be the (Vice)'Prssident of. DAM MIN NATION : *,U , the foregoing corporation, and that as such, be, ba4 mdhorlred byaueh corporation to do so, eaeeuted the foregoing Deed tar the purpose therein contained by signing his name thcrwn m such. '1N WITNESS WIIMMF J hereunto sat my hand and official acal. • ' MY Commission papirm now 1 HEREBY CEI TWX that the precise residw a of the Grantee is: cc cy ? c r' 0 c ??n • Q, 70 'O tt may or Agent for Grantcc'u C v 8 N .a G COMMONWEALTH OF PENNSYLVANIA r COUNTY OF?,j eb??a ) 1 Retarded on this Y, day of • ? ' A p .D. 1944 , In.lhe Recorder's Office of the said Count In Deed Sook(f,9 Volume , Page 8lt' . Given under aw hand and the seal of OLOWOffice. the date above writ en. l? t 4&f-& ???r..._.....Recorder i Certify i1;i 6 108 WE 845 s to be recorded 111 C:u1311 eriand County Ply ,. (",.ecorder of Deeds 1" ?a ?b s .3 r ? 7 ro L SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-03416 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MANUFACTURERS AND TRADERS TRUS VS CRIDER RICHARD D 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: CRIDER RICHARD D but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of PERRY serve the within COMPLAINT & NOTICE County, Pennsylvania, to On June 20th , 2007 , this office was in receipt of the attached return from PERRY Sheriff's Costs: So rs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 R mas ine Dep Perry County 72.80 he ff of Cumberland County Postage 3.25 113.05 ? ?/z? b1 06/20/2007 KEEFER WOOD ALL RAHAL Sworn and subscribe to before me this day of , A. D. SHERIFF'S RETURN - OUT OF COUNTY VASE 'NO: 2007-03416 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MANUFACTURERS AND TRADERS TRUS VS CRIDER RICHARD D 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: CRIDER DONNA M but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of PERRY serve the within COMPLAINT & NOTICE On June 20th , 2007 , this offi attached return from PERRY . Sheriff's Costs: S a Docketing 6.00 Out of County .00 County, Pennsylvania, to ce was in receipt of the Surcharge 10.00 (k- R o as Kline .00 ' er' f of Cumberland County .00 ? 6?? ??b 16.00 06/20/2007 KEEFER WOOD ALLEN RAHAL Sworn and subscribe to before me this day of , A. D. In The Court of Common Pleas of Cumberland County, Pennsylvania Manufacturers and Traders Trust Company VS. Richard D. Crider et al SERVE: Richard D. Crider No. 07-3416 civil Now, June 12, 2007 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Perry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, June 14, , 20 0 7 at 7: 3 8 o'clock P M. served the within Notice & Complaint upon Richard D. Crider at 47 Fleisher Rd. (Rye Twp) Marysville, PA 17053 by handing to a True & Attested and made known to Richard D. Crider, Defendant Him copy of the original Notice & Complaint- the contents thereof. So answers, Aaron D. Richards Z?14? - 445ti-l'o - Deputy Sheriff of Perry County, PA Sworn and subscribed before me this 12Nay of ?J-tt je- , 20 )NOTARIAL MARGARET . FLICKINGER, NOTARY PUBLIC BLOOMF16 BORO., PERRY COUNTY MV COMMlSS104 EXPIRES FEB. 16, 2008 COSTS SERVICE MILEAGE _ AFFIDAVIT In The Court of Common Pleas of Cumberland County, Peninsylvania Manufacturers and Traders Trust Company vs. Richard D. Crider et al SERVE: Donna M. Crider No 07-3416 civil No. Now, June 12, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Perry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, June 14, '20 07 at 7:38 o'clock P M. served the within Notice & Complaint upon Donna M. Crider at 47 Fleisher Rd. (Rye Twp) Marysville, PA 17053 by handing to Richard D. Crider, Defendants Husband a True & Attested copy of the original Notice & Complaint and made known to Him the contents thereof. So answers, Aaron D. Richards d4pl, i Deputy Sheriff of Perry County, PA Sworn and subscribed before me this 15-WI day of SCc rv-- , 20 ? NOTARIAL SEAL EMARG:AREr FLICKINGER. NOTARY PUP Ic LD BORO., PERRY OUNT Y SION EXPIRES FE8.16, 20D8 COSTS SERVICE $ MILEAGE AFFIDAVIT MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff V. RICHARD D. CRIDER and DONNA CRIDER, Defendants In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Action - Law No. 07-3416 Civil Term MORTGAGE FORECLOSURE ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Anthony W. Parker, Esquire and Kelly, Parker & Cohen, LLP on behalf of Defendants in the above-referenced matter. Respectfully submitted, ezlz: ? ?' I - thong W. Parker ltey I.D. No. 81251 KELLY, PARKER & COHEN, LLP Commerce Towers, 10th Floor 300 North Second Street Harrisburg, PA 17101 (717) 920-2220 aparker@kpc-law.com Dated: ' U CERTIFICATE OF SERVICE On this 3rd day of January, 2008, I, Patricia Z. Glusko, a secretary in the law offices of Kelly, Parker & Cohen, LLP, hereby certify that I have served this day, true and correct copies of the foregoing document in the above matter, by depositing the same in the United States First Class Mail, postage prepaid, in Harrisburg, Pennsylvania, to those person(s) and address(es) indicated below: Eugene E. Pepinsky, Jr. Keefer, Wood, Allen & Rahal 210 Walnut Street Post Office Box 11963 Harrisburg, PA 17108-1963 Patrici lusko -r? ? ?r ? r ;> ?. -? ? -? 7 -? > ? ? ? --? MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff V. RICHARD D. CRIDER and DONNA CRIDER, Defendants In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Action - Law No. 07-3416 Civil Term MORTGAGE FORECLOSURE NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, 17 oAI&Ahony)V. Parker A .D. No. 81251 KELLY, PARKER & COHEN, LLP Commerce Towers, 10'h Floor 300 North Second Street Harrisburg, PA 17101 (717) 920-2220 aparkergkpc-law.com Dated: 1 Njo,:) MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff V. RICHARD D. CRIDER and DONNA M. CRIDER, Defendants In the Court of Common Pleas of Cumberland County, Pennsylvania : Civil Action - Law No. 07-3416 Civil Term MORTGAGE FORECLOSURE DEFENDANTS RICHARD D. CRIDER'S AND DONNA M. CRIDER'S ANSWER WITH NEW MATTER TO COMPLAINT AND NOW, come Defendants Richard D. Crider and Donna M. Crider, by and through their attorneys, Kelly, Parker & Cohen, LLP, and respectfully submit this Answer with New Matter to the Complaint of Manufacturers and Traders Trust Company, and in support thereof, aver as follows: 1. The averments in Paragraph I are ADMITTED on the basis of information and belief. 2. ADMITTED. 3. ADMITTED. 4. ADMITTED. 5. DENIED. The allegations contained in Paragraph 5 of Plaintiff's Complaint consist of legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, it is denied Defendants defaulted under the terms of the mortgage. 6. DENIED. The allegations contained in Paragraph 6 of Plaintiff's Complaint consist of legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, it is denied that Defendants have failed and refused to make payments due and payable under the mortgage. 7. DENIED. The allegations contained in Paragraph 7 of Plaintiff's Complaint consist of legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the mortgage is a written document which speaks for itself. By way of further response, it is denied that a default occurred which permits Plaintiff to accelerate and demand immediate payment of all sums due and owed under the mortgage. 8. DENIED. The allegations contained in Paragraph 8 of Plaintiff's Complaint constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, it is denied Plaintiff has accurately calculated the amounts due under the mortgage. It is further denied that Plaintiff is entitled to attorney's fees of $10,000.00. 11. DENIED. The allegations contained in Paragraph 11 of Plaintiff s Complaint constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, it is denied that the Homeowners Emergency Mortgage Disclosure Act of 1993 ("Act 91 ") does not apply to this situation. 12. DENIED. The allegations contained in Paragraph 12 of Plaintiffs Complaint consist of legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, it is denied that Notice of Intention to Foreclose pursuant to Section 403 of Act 6 is not required. WHEREFORE, Defendants Richard D. Crider and Donna M. Crider request this Court enter judgment in their favor and against Plaintiff and award reasonable attorney's fees, costs and such other relief that this Court deems appropriate and just. . r NEW MATTER 13. Plaintiff's Complaint fails to state a claim against Defendants upon which relief can be granted. 14. Plaintiff's claims against Defendants are barred by the principles of waiver. 15. Defendants at all times relevant hereto fully complied with the terms of the mortgage. 16. Plaintiff's claims are barred by the principles of estoppell. 17. Plaintiff's claims are barred by the doctrine of unclean hands. 18. Plaintiff's claims are barred by the principles of laches and/or are time barred by a statute of limitations. 19. Plaintiff's claims are barred in whole or in part by accord and satisfaction. 20. Notice of Intention to Foreclose and/or Notice of Default, as required by the mortgage document, as applicable, has not been sent. 21. Plaintiff failed to provide notice of default, as required by Paragraph k of the mortgage, which would permit it to accelerate and declare the entire unpaid principal balance on the mortgage due. 22. Plaintiff failed to properly serve Notice of Intent to Commence Foreclosure Proceedings. Respectfully submitted, Dated: I on W. Parker Atto ey I.D. No. 81251 KELLY, PARKER & COHEN, LLP Commerce Towers, 10t' Floor 300 North Second Street Harrisburg, PA 17101 (717) 920-2220 aparker@kpc-law.com VERIFICATION I, Richard A Crider, hereby state that I have read the foregoing document, which has been drafted by counsel. The factual statements contained therein are true and correct to the best of my information, knowledge, and belief, although the language is that of counsel and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. L) , -20'ok 2 ?j ate Richard D. Crider CERTIFICATE OF SERVICE On this 3rd day of January, 2008, I, Patricia Z. Glusko, a secretary in the law offices of Kelly, Parker & Cohen, LLP, hereby certify that I have served this day, true and correct copies of the foregoing document in the above matter, by depositing the same in the United States First Class Mail, postage prepaid, in Harrisburg, Pennsylvania, to those person(s) and address(es) indicated below: Eugene E. Pepinsky, Jr. Keefer, Wood, Allen & Rahal 210 Walnut Street Post Office Box 11963 Harrisburg, PA 17108-1963 z4sz-? Patricia . Glusko C> .v 1 Z? ...LLB ' Mg " KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO. 07-3416 CIVIL TERM RICHARD D. CRIDER and MORTGAGE FORECLOSURE DONNA M. CRIDER Defendants REPLY TO NEW MATTER 13. DENIED. The allegations contained in Paragraph 13 of Defendants' New Matter constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the same are denied. 14. DENIED. The allegations contained in Paragraph 14 of Defendants' New Matter constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the same are denied. 15. DENIED. The allegations contained in Paragraph 15 of Defendants' New Matter constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the same are denied. 16. DENIED. The allegations contained in Paragraph 16 of Defendants' New Matter constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the same are denied. 17. DENIED. The allegations contained in Paragraph 17 of Defendants' New Matter constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the same are denied. 18. DENIED. The allegations contained in Paragraph 18 of Defendants' New Matter constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the same are denied. 19. DENIED. The allegations contained in Paragraph 19 of Defendants' New Matter constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the same are denied. 20. DENIED. The allegations contained in Paragraph 20 of Defendants' New Matter constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the same are denied. 21. DENIED. The allegations contained in Paragraph 21 of Defendants' New Matter constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the same are denied. 22. DENIED. The allegations contained in Paragraph 22 of Defendants' New Matter constitute legal conclusions which require no response. To the extent the averments are deemed to be factual in nature, the same are denied. WHEREFORE, Plaintiff demands judgment in the sum of $124,623.98, together with interest as may accrue from and after June 7, 2007, and costs of suit, and for foreclosure of the Mortgage and judicial sale of Premises. KEEFER, WOOD, ALLEN & RAHAL, LLP Date: January 4, 2008 By: Eugene E. Pepinsky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff r-D y t-- 5 1 =- - -n - , , r co ^ j