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Home My WebLink About07-7357-r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LEZZER CAPITAL RESOURCES, INC., Plaintiff vs. FCM BUILDERS, INC., Defendant Docket No. Cq - 7357 '(t-v; t7e.ryq Type of Case: Mortgage Foreclosure Complaint Filed on behalf of Plaintiff Counsel of Record for Plaintiff: Elizabeth A. Dupuis, Esquire Babst Calland Clements Zomnir, PC PA I.D. Number: 80149 ? T IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) vs. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007- 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 S. Bedford Street Carlisle, PA 17013 TELEPHONE NO. 717-249-3166 or 800-990-9108 BABST CALLAND CLEMENTS ZOMNIR, PC By: liz eth A. Dupuis, Esq re { IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., Plaintiff, Case No. 2007- 73s'7 CAva Te""' vs. FCM BUILDERS, INC., Defendant. MORTGAGE FORECLOSURE COMPLAINT AND NOW COMES the Plaintiff, Lezzer Capital Resources, Inc., by and through its attorneys, Babst, Calland, Clements, Zomnir, PC, to hereby bring this action in Mortgage Foreclosure, and states in support thereof as follows: 1. The Plaintiff is Lezzer Capital Resources, Inc. (hereinafter referred to as "Lezzer"), a Pennsylvania Corporation, with offices and a principal place of business at Schofield Street, P.O. Box 217, Curwensville, Pennsylvania, 16833. 2. Defendant FCM Builders, Inc. (hereinafter referred to as "FCM"), a Pennsylvania corporation, who is also the real owner of the premises hereinafter described, has principal offices located at 13 Mt. Allen Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 3. On June 30, 2006, Defendant executed a executed an Adjustable Rate Note through which it promised to pay Plaintiff Lezzer the sum of $430,000.00 plus interest at Lenders' Prime Rate plus one (1%) percent per annum. Also pursuant to said Note of June 30, 2006, Defendant promised to pay the principal and interest on the loan in full on the maturity date, July 1, 2007. A true and correct copy of the above described Note is attached hereto as Exhibit "1" and made a part hereof by reference. 4. On June 3, 2006, Defendant made, executed and delivered a Mortgage in the amount of $430,000.00 which was recorded in the Recorder's Office of Cumberland County in Record Book 1959, Page 289, on July 20, 2006. A true and correct copy of said Mortgage is attached hereto as Exhibit "2", and made a part hereof by reference. 5. Even though not required by the terms of the instruments, by letter dated August 16, 2007, and served upon Defendant, the Defendant was notified that it was approaching the extended maturity date on the Note and Mortgage and that all payment must be received by the extended maturity date. Nevertheless, Defendant has failed to cure its default on said Note and Mortgage, namely payment in full as of the maturity date. A copy of the Notice that was served upon Defendant is marked as Exhibit "3" is attached hereto and made a part hereof by reference. 6. The premises subject to said Mortgage are located at 2 Ridge Drive, Arlisle, Pennsylvania, and more fully described as follows: ALL THAT CERTAIN tract of land situate in Middlesex Township, Cumberland County, Pennsylvania, being identified as Lot 8 as shown on a plan of lots; known as Ridge Estates, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Plan Book 91 on page 8, and being more fully described as follows, to wit: BEGINNING at a point in Ridge Drive (T-571), at a common corner of Lot #8 and Lot #9 of the Final Subdivision Plan for Ride Estates; thence through said Ridge Drive (T-571) and along said Lot #9, South 08 27; 59" East, a distance of 496.19 feet to a point at a common property corner of Lot #8, Lot #9 and lands now or late of George C. Wolfe, Jr.; thence along said lands now or late of George C. Wolfe, Jr., South 83 45' 17" West, a distance of 199.86 feet to a point in South Middlesex Road (T-590); thence through said South Middlesex Road (T-590), North 08 30' 00" West, a distance of 488.94 feet to an intersecting point in South Middlesex Road (T-590) and Ridge Drive (T-571); thence through said Ridge Drive, the following two (2) courses: (1) North 82 20' 44" East, a distance of 133.71 feet to a point; thence (2) North 80 19' 39" East, a distance of 66.32 feet to a point, at a common property corner of Lot #8 and Lot #9, said point being the point of BEGINNING. 2 SAID LOT CONTAINING a gross area of 98,285.92 square feet or 2.2563 acres and net area of 76,230.25 square feet or 1.7500 acres to the Dedicated Right-of-Way Lines of South Middlesex Road (T-590) and Ridge Drive (T-571). ALSO BEING KNOWN and numbered as 2 Ridge Drive, Carlisle, Pennsylvania, and BEING KNOWN and identified by the Cumberland County Tax Assessment Office as May and Parcel Number 21-08-0573-031. BEING the same premises which became vested in FCM Builders, Inc. by deed of Land Market Incorporated dated June 7, 2006 and recorded in Cumberland County Record Book 275 at Page 3710. 7. The foregoing Note and Mortgage are in default because: a. Defendant has failed to pay the principal and interest due on the Note at the date of Maturity; b. Defendant has failed to pay the same for a period in excess of thirty (30) days from the date the same were due and payable. C. By the terms of said Mortgage and accompanying Note, upon default on payment, or any part thereof, for thirty (30) days after the same falls due, the whole of the said debt, together with interest shall, at the option of the Mortgagee, Plaintiff Lezzer, become due and payable. 8. As of November 30, 2007 the following amounts are currently due on said Mortgage given to Plaintiff Lezzer by Defendant: Unpaid Principal on Note $ 391,266.81 Interest through November 30, 2007 (per diem $91.12) 30,574.01 Late Charges 11,738.00 Attorney's Commission 21,678.94 Total Amount $ 455,257.76 3 WHEREFORE, Plaintiff Lezzer Capital Resources, Inc. demands judgment against Defendant FCM Builders, Inc. in the amount of $455,257.76, in addition to contractual interest at a per diem rate of $91.12 from November 30, 2007 to the date of sale or until paid in full, along with attorneys' fees, costs of suit and other charges collectible under the Mortgage, and for the possession, foreclosure and sale of the mortgaged property. BABST CALLAND CLEMENTS ZOMNIR PC Dated: w4l0q By: Elizab A. Dupuis, Esqui Attorney for Plaintiff Omega Bank 328 Innovation Blvd., Suite 200 State College, PA 16803 (814) 867-8055 Attorney I.D. No. 80149 4 VERIFICATION I, THOMAS YONTOSH, Credit Manager for LEZZER CAPITAL RESOURCES, INC., verify that the statements contained in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Thomas Y Credit Manager Lezzer Capital Resources, Inc. Dated: - ?{ ??- NOTE Amount: $430,000.00 Date: June 30, 2006 1. BORROWER'S PROMISE TO PAY. FOR VALUE RECEIVED, the undersigned FCM Builders, Inc., a Pennsylvania corporation whose mailing address is 13 Mt. Allen Drive Mechanicsburg. Pennsylvania 17055 (hereinafter "Borrower(s)"), promises to pay to the order of LEZZER CAPITAL ;RESOURCES, INC., a Pennsylvania corporation, its successors and assigns (hereinafter "Lender" ).,whose address is 332 Schofield Street, P.O. Box 217, Curwensville, Pennsylvania, 16833, in lawful money of the United States, the principal sum of Four Hundred Thirty Thousand and no/100 ($430,000.00), Dollars (the "Loan") with interest thereon from the date hereof at the rates set forth hereinafter, computed on the actual number of days elapsed over a three hundred sixty-five (365) day year and payable in accordance with the terms set forth hereinafter. J1 2. SECURITY. This Note is secured by a mortgage of even date herewith from Borrower to Lender encumbering certain property located at Middlesex Township Cumberland Counly, Pennsylvania with an address of Lot No. 8 of the Ride Estates Subdivision 2 Ride Drive Carlisle Pennsylvania, 17013 which togetheeVith this Note, a Construction Loan Agreement between Borrower and Lender, UCC-1 Financing Statements, and other documents or instruments which evidence or secure the Loan or have been or hereafter are executed in connection therewith, are referred to herein as the "Loan Documents." c 3. INTEMEST AND REPAYMENT SCHEDULE. Interest on the outstanding balance of the Loan from day to day `shall accrue at a fluctuating rate of interest equal to Lender's Prime Rate plus One Percent (1) per annurri! For purposes of this Note, Lender's Prime Rate shall be, on any day, that rate of interest declared as the highest Prime Rate as published in the Wall Street Journal. Each time Lender's Prime Rate changes,-the per annum rate of interest on this Note shall change immediately and contemporaneously with such change in Lender's Prime Rate. At no time during the duration of this loan shall the interest rate `e less than the Prime Rate on the date the documents are executed. If the Wall Street Journal ceases do report such a prime rate, the Lender's Prime Rate shall thereafter be determined by such alternate metld as may be reasonably selected by Lender. Until all principal and accrued interest owing on this Note shall have been fully paid and satisfied, accrued interest on the outstanding principal shall be due and payable to Lender monthly. 4. CERT,0- N PROVISIONS REGARDING PAYMENTS. All payments made under this Note shall be applied;, to the extent thereof, to late charges, to accrued but unpaid interest, to unpaid principal, and to any ether sums due and unpaid to Lender under the Loan Documents, in such manner and order as Lender spay elect in its sole discretion. All permitted prepayments on this Note shall be applied, to the extenAhereof, to accrued but unpaid interest on the amount prepaid, to the remaining principal installments and any other sums due and unpaid to lender under the Loan Documents, in such manner and order as tender may elect in its sole discretion, including but not limited to application to principal installments``n inverse order of maturity. Except to the extent that specific provisions are set forth in this Note or `another Loan Document with respect to application of payments, all payments received by Lender shall be applied, to the extent thereof, to the indebtedness secured by the Security Instrument in such m`nner and order as Lender may elect in its sole discretion, any instructions from Borrower or anyone else to the contrary notwithstanding. Remittances in payment of any part of the indebtedness other than in the required amount in immediately available U.S. funds shall not, regardless of any receipt or credit issued therefore, constitute payment until the required amount is actually received by lender in immedialy available U.S. funds and shall be made without offset, demand, counterclaim, deduction, or recoupnnt (each of which is hereby waived) and accepted subject to the condition that any check or draft may bq handled for collection in accordance with the practice of the collecting bank or banks. Acceptance by ;the holder hereof of any payment in an amount less than the amount then due on any indebtedness shah be deemed an acceptance on account only, notwithstanding any notation on or accompanying such partial payment to the contrary, and shall not in any way excuse the existence of a Default. Payments received after 2:00 p.m. eastern time shall be deemed to be received on, and shall be posted as of, the follb r wing business day. Whenever any payment under this Note or any other Loan Document falls due oil a day on which the offices of Lender are not open for the conduct of its business, such payment may be`nade on the next succeeding day on which the offices of Lender are open for such business, and the extepsion of time in such case shall be included in the computation of interest. EXHIBIT j Ci I ?, s? Borrower agrees to pay interest in accordance with terms of this Note. Borrower acknowledges that a portion of the loan proceeds in the amount of $27,090.00 will be disbursed only for payment of interest on the loan and, until =such disbursement, will be considered an interest reserve on which interest will not accrue. Lender is hereby authorized to pay accrued interest to itself on the Loan from such interest reserve as and when due and `to increase outstanding Loan principal by the amount of such payments, provided Lender gives Borrower written notice of each such payment. Upon exhaustion of such interest reserve, Borrower will be oblijated to pay all interest from its own funds. 5. MATURITY. The entire outstanding principal balance plus all accrued interest then unpaid shall be due and payable on July 1, 2007 (the "Maturity Date"). 6. PREPAYMENT. This note may be prepaid in whole or in part at any time without penalty. a 7. DEFAULT. Borrower hereby agrees that it shall be in default under this Note if at any time: (a) any installn4nt due hereunder shall not be fully paid within ten (10) days after the due date thereof, or (b) the Borrower breaches or is in default under any other term of this Note or any of the Loan Documents or any otlbr instrument or document given in connection with or to secure payment of this Note, which is not cared within fifteen (15) days following written notice thereof to Borrower from Lender. 8. REMEIJIES. In the event that Borrower shall become in default, and at any time thereafter so long as the Borrower shall remain in default, at the option of Lender, the entire outstanding principal sum then remaining unpaid hereunder, together with all interest accrued thereon (whether billed or unbilled), shall immediately become due and payable in full, without further notice, and the Lender shall have the right to institute any proceedings on this Note, the Loan Documents, or any of them, or any other collateral given to secure the same, without limitation, for the purposes of collecting the indebtedness due hereunder, and the Brrower agrees to pay all costs and expenses incurred thereby, including without limitation, reasonable '9ttorneys' fees. AP 9. DEFA#LT INTEREST. Any unpaid balance due hereunder shall continue to bear interest after default, after this Note matures either according to its terms or as the result of acceleration and a declaration of matunt : and/or after the unpaid balance has been reduced to judgment, at a rate equal to three (3%) percent pe - um over the repayment interest rate specified in paragraph 3 above. 10. LATE CHARGES. If Borrower shall fail to make any payment under the terms of this Note within ten (10) ac ys after the date such payment is due, Borrower shall pay to Lender on demand a late charge equal to fie percent (5%) of the amount of such payment. Such ten (10) day period shall not be construed as in anway extending the due date of any payment. The late charge is imposed for the purpose of defraying a expenses of Lender incident to handling such delinquent payment. This charge shall be in addition to,°Iand not in lieu of, any other remedy Lender may have and is in addition to any fees and charges of any a`g'ents or attorneys which Lender may employ upon the occurrence of a default, whether authorized heein or by law. 11. REME ;F IES CUMULATIVE. The remedies provided herein and in any Loan Document or other instrument given to secure the payment of this Note shall be cumulative and no one is exclusive, and such remedies may be exercised concurrently or consecutively at the option of the Lender. Any waiver, failure, or defy be Lender in exercising any right or remedy provided in this Note or in any Loan Document, in the evert of any default, shall not constitute a waiver of such right of remedy or preclude its future exercise or thatof any other right or remedy in the event of any subsequent default, whether of the same or different nature. 12. WAIV MS. The Borrower for itself, its legal representatives, successors and assigns, respectively, expressl „'waives presentment, demand, protest, notice of dishonor, notice of protest, notice of non-payment, noticr6 of maturity, notice of intent to accelerate notice of acceleration, and all other notices (except any notices which are specifically required by this Note or any other Loan Document) and consents to the extenson of time of payment or other modification of the terms of payment of any portion of the debt evidenced hereby, upon request of any other person liable hereon, which extension or modification shall not Ater or diminish the liability of any other person hereon. I; 13. GOVEIING LAW. This Note shall be governed and construed in accordance with the laws of the Commor0ealth of Pennsylvania (without regard to any conflict of law principles) and applicable U.S. federal law, and shall be enforceable in the Courts of such state, to which jurisdiction the 4. +s Borrower, by execution hereof, hereby consents. 14. EXCESSIVE INTEREST. It is expressly stipulated and agreed to be the intent of Borrower and Lender at all times to comply with applicable state law or applicable United States federal law (to the extent that it permits Lender to contract for, charge, take, reserve, or receive a greater amount of interest than understate law) and that this Section shall control every other covenant and agreement in this Note and the other Loan Documents. If applicable state or federal law should at any time be judicially interpreted so as to render usurious any amount called for under this Note or under any of the other loan Documents, or contrOcted for, charged, taken, reserved, or received with respect to the Loan, or if Lender's exercise of the option to accelerate the Maturity Date, or if any prepayment by Borrower results in Borrower having paid any interest in excess of that permitted by applicable law, then it is lender's express intent that all `excess amounts theretofore collected by lender shall be credited on the principal balance of this Note acid all other indebtedness secured by the Security Instrument, and the provisions of this Note and the other loan Documents shall immediately be deemed reformed and the amounts thereafter collectible lreunder and thereunder reduced, without the necessity of the execution of any new documents, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder or thereunder. All sums paid or agreed to be paid to Lender for the use or forbearance of the LoA shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan. If any such excessive interest exceeds the unpaid principal balance hereof, the amount of such excessive interest that exceeds the unpaid principal balance shall be refunded to thO Borrower. It 15. COMM RCIAL PURPOSE. Borrower warrants that the Loan is being made for a COMMERCIAL PURPOSE, specifically for the acquisition of land and/or the construction of a residential dwelling f sale and/or that Borrower is operating as a business or commercial organization. • Borrower further warrants that all of the proceeds of this Note shall be used for such commercial purposes and is made for otherthan personal, family, personal household or agricultural purposes, and Borrower stipulates that the Loam. shall be construed for all purposes as a commercial loan. kv, 16. HEIRSf? SUCCESSORS AND ASSIGNS. The terms of this Note and of the other Loan Documents shall bind and inure to the benefit of the heirs, devisees, representatives, successors and assigns of the parties':The foregoing sentence shall not be construed to permit Borrower to assign the Loan except as othefwise permitted under the Loan Documents. As further provided in the Loan Agreement, Lender may, at any time, sell, transfer, or assign this Note, the Security Instrument and the other Loan Documents,; and any or all servicing rights with respect thereto, or grant participations therein or issue mortgage pass throu gh certificates or other securities evidencing a beneficial interest in a rated or unrated public offering"2or private placement. 17. GENERAL PROVISIONS. Time is of the essence with respect to Borrower's obligations under this Note. If mare than one person or entity executes this Note as Borrower, all of said parties shall be jointly and severally liable for payment of the indebtedness evidenced hereby. Borrower and all sureties, endorsers, guarantors and any other party now or hereafter liable for the payment of this Note in whole or in part, here} y severally (a) agree to any substitution, subordination, exchange or release of any such security or the release of any party primarily or secondarily liable hereon; (b) agree that Lender shall not be required first td"institute suit or exhaust its remedies hereon against Borrower or others liable or to become liable hereon Or to perfect or enforce its rights against them or any security herefor; (c) consent to any extensions or postponements of time of payment of this Note for any period or periods of time and to any partial payments, ,before or after maturity, and to any other indulgences with respect hereto, without notice thereof to any of them; and (d) submit (and waive all rights to object) to non-exclusive personal jurisdiction of any state or federal court sitting in the Commonwealth of Pennsylvania, and venue in the county in which payment is to be made as specified in Section 1 of this Note, for the enforcement of any and all obligations under this Note and the Loan Documents; (e) waive the benefit of all homestead and similar exemptions asa to this Note; (f) agree that their liability under this Note shall not be affected or impaired by any determination that any title, security interest or lien taken by Lender to secure this Note is invalid or unperfected; and (g) hereby subordinate to the Loan and the Loan Documents any and all rights against Borrower and any of the security for the payment of this Note, whether by subrogation, agreement or otherwise, until this Note is paid in full. A determination that any provision of this Note is unenforceable or invalid shall not affect the enforceability or validity of any other provision and the determination that the' plication of any provision of this Note to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstarides. This Note may not be amended except in a writing specifically intended for such purpose and executed by the party against whom enforcement of the amendment is sought. Lender is hereby authorized to disseminate any information it now has or hereafter obtains pertaining to the Loan, including, without limitation, any security for this Note and credit or other information on Borrower, any of its principals and any guarantor of this Note, to any actual or prospective assignee or participant with respect to the Loan, to any of Lender's affiliates, to any regulatory body having jurisdiction over Lender, and to any other parties as necessary or appropriate in Lender's reasonable judgment, as further provided in the Loan Agreement. Captions and headings in this Note are for convenience only and shall be disregarded in construing it. 18. NOTICES. All notices, requests, consents, approvals or demands (collectively, "Notice") required or permitted: by this Note to be given by any party to any other party hereunder shall, unless specified otherwise, be in writing and shall be given to such party at its address listed herein, or such other address as such party may hereafter specify for the purpose by Notice to the other party. Each such Notice shall be effective if given by hand delivery, certified mail, return receipt requested, overnight courier, when actually received by the addressee or when the attempted initial delivery is refused or when it cannot be made becakise of a change of address of which the sending party has not been notified; provided, that notices to Lender of changed address, shall not be effective until received. Whenever a time of day is referred to herein, unless otherwise specified, such time shall be the local time in the city in which this Note is pay#ble. I.f THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND 1IAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANE&S OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. C THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES. 73 IN WITNESS WHEREOF, the Borrower has duly executed this Note under seal as of the date first above written.' FCM Builders, Inc. ?d ATTEST:> f By. Secretary President "Corporate Seal" .?C Record and return to: Lezzer Capital Resources, Inc. emu` AL 7 332 Schofield Street, P.O. Box 217 Curwensville, PA 16833 OPEN-END MORTGAGE AND SECURITY AGREEMENT (THIS MORTGAGE SECURES FUTURE ADVANCES.) (This is a "construction mortgage" within the meaning of 13 Pa. C.S.A. §2A309) THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as "this Security Instrument") made and entered into as of June_ 3. 2006, by and among FCM Builders. Inc., a Pennsylvania corporation whose mailing address is 13 Mt. Allen Drive Mechanicsburg, Pennsylvania, 17055 (hereinafter referred to as "Borrower"); and Lezzer Capital Resources, Inc., a Pennsylvania corporation, having a mailing address of 332 Schofield Street, P.O. Box 217, Curwensville, PA 16833 (hereinafter referred to as "Lender") covering the property described in this Security Instrument and located at Middlesex Township Cumberland County Pennsylvania with an address of Lot No. C'of the Ride Estates Subdivision 2 Ride Drive Carlisle Pennsylvania, 17013 ("Land"). ' WITNESSETH: WHEREAS, the Borrower is indebted to the Lender in the principal sum of Four Hundred Thirty Thousand and'no/100 ($430.000.00) Dollars, as evidenced by a Note of even date herewith, the terms of which are incorporated herein by reference. The final due date for payment of said Note, if not sooner paid, is July 1. 2007. The Note evidences the Borrower's obligation to pay the maximum principal sum of Four Hundred Thirty Thousand and no/100 ($430.000.00) Dollars which Lender has agreed to advance to Borrower to apply toward the cost of constructing a residence dwelling on the Premises for sale. The principal is to be advanced from time to time by Lender in proportion to the agreed stages of progress of the work done and/or as provided in a separate Construction Loan Agreement executed by Lender and Borrower. This Mortgage is intended to cover all future advances which Lender is obliged to make to Borrower, up to the maximum amount of principle that may be out standing at any time to construct a residence `dwelling on the Land and, during this period, this mortgage shall be an Open-End Mortgage pursuant to Pennsylvania law. NOW, THEREFORE, as security for said indebtedness, advancements and other sums expended by Lender ,pursuant to this Security Instrument and costs of collection (including reasonable attorneys fees as prodded in the Note) and other valuable consideration, the receipt of which is hereby acknowledged, the Borrower has bargained, sold, given, granted and conveyed and does by theses presents bargain, sell, give, grant and convey to Lender, its successors, and/or assigns, all of the following described land and interests in land, estates, easements, rights, improvements, property, fixtures, equipment,`' furniture, furnishings, appliances and appurtenances (hereinafter collectively referred to as the "Premises"): (a) All that certain tract, piece or parcel of land more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof (hereinafter referred to as the "Land"). (b) All buildings, structures and improvements of every nature whatsoever now or hereafter situated or constructed on the Land. r (c) All construction supplies and materials, vehicles and other rolling stock, gas and electric fixtures, radiators, heaters, engines and machinery, boilers, ranges, plumbing and heating fixtures, draperies, carpeting and other floor coverings, fire extinguishers and any other safety equipment, washers, dryers, water heaters, water fountains, mirrors, mantels, air conditioning apparatus, refrigerators, cooking apparatus and appurtenances, window screens, awnings and storm sashes, and all other furnishings, furniture, and goods which are or are to become fixtures; machinery, equipment, inventory, supplies, appliances, and tangible personal property of every kind and nature whatsoever now or hereafter owned by Borrower and located in, on or about, or used or intended to be used with or in connection with the use, operation or enjoyment of the Premises, and all extensions, additions, EXHIBIT ac2 , emu% ! 959P 0289 improvement, betterments, after-acquired property, renewals, proceeds and replacements of any of the foregoing; together with the benefit of any deposits or payments now or hereafter made by Borrower or on behalf of Borrower, all of which are hereby declared and shall be deemed to be fixtures and accessions to the freehold and a part of the Premises as between the parties hereto and all persons claiming by, through or under them, and which shall be deemed to be a portion of the security for the indebtedness herein described and to be secured by this Security Instrument. (d) All of Borrower's rights, but not liability for any breach by Borrower, under all contracts for the purchase and sale of the Premises or any part thereof and all commitments (including any commitments for financing to pay any of the indebtedness secured hereby), insurance policies, contracts and agreements for the design, construction, operation or inspection of the Improvements and other contracts and general intangibles (including but not limited to trademarks, trade names, goodwill and symbols) related' to the Premises or the operation thereof. (e) All easements, rights-of-way, strips and gores of land, vaults, streets, ways, alleys, passages, sewer rights, waters, water courses, water rights and powers, and. all estates, rights, titles, interests, privileges,' liberties, tenements, hereditaments and appurtenances whatsoever, in any way belonging, relating or appertaining to the Premises or any part thereof, or which hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned or hereafter acquired by Borrower; prepaid insurance premiums, condemnation payments, rents and tenant security deposits, escrow funds and any other fees orpayments accruing to Borrower in connection with the Premises. TO HAVE AND TO HOLD the said Premises and all parts, rights, members and appurtenances thereof unto the Lender and the successors and assigns of the Lender until the indebtedness hereinafter described is paid in'full. Borrower covenants that Borrower is lawfully seized and possessed of the Premises as aforesaid, and has good right to convey the same, that the same is unencumbered except for (i) the matters, if, any, set forth under the heading "Permitted Exceptions" in Exhibit "B" hereto, which are Permitted'' Exceptions only to the extent the same are valid and subsisting and affect the Property, (ii) the liens and security interests evidenced by this Security Instrument; and (iii) other liens and security interests'"(if any) in favor of Lender (the matters described in the foregoing clauses (i), (ii) and (iii) being herein called the "Permitted Encumbrances"). Borrower warrants and will defend generally the title to„ the Premises against all claims and demands. Borrower will punctually pay, perform, observe and keep all covenants, obligations and conditions in or pursuant to any Permitted Encumbrance and will not modify or permit modification of any Permitted Encumbrance without the prior written consent of Lender. Inclusion of any matter as a Permitted Encumbrance does not constitute approval or waiver by Lender of any existing or future violation or other breach thereof by Borrower, by the Property or otherwise. No part of the Property constitutes all or any part of the principal residence Of Borrower if Borrower is an individual. If any right or interest of Lender in the Property or any pat?t thereof shall be endangered or questioned or shall be attacked directly or indirectly, Lender (whether or not named as a party to legal proceedings with respect thereto), is hereby authorized and empowered to take such steps as in its discretion may be proper for the defense of any such legal proceedings or the protection of such right or interest of Lender, including but not limited to the empl4ment of independent counsel, the prosecution or defense of litigation, and the compromise or discharge of adverse claims. All expenditures so made of every kind and character shall be a demand obligation (which obligation Borrower hereby promises to pay) owing by Borrower to Lender, and Lender shall be subrogated to all rights of the person receiving such payment. Borrower does warrant and will forever defend the title thereto against the claims of all persons whomsoever, except as to the Permitted Exceptions. This SecurityInstrument is given to secure the following described indebtedness: t (aThe debt evidenced by that certain Note dated of even date herewith, made by Borrower, payable to the order-of Lender in the principal face amount of Four Hundred Thirty Thousand and no/100 ($430,000.00) Dollars, with the final payment being due on July 1, 2007; together with any and all amendments;- modifications, reinstatements, substitutions, renewals and/or extensions of the said note (hereinafter referred to as the "Note" and to which Note reference is hereby made for all purposes); -' (b) Any and all additional future advances and readvances made by Lender under the Note or to protect or pres6rve the Premises or the lien or security title hereof on the premises, or for taxes, assessments or insurance premiums as hereinafter provided (whether or not the original Borrower remains the owner of the Premises at the time of such advances); 1959111PG02*910 (c) Any and all other sums owed by Borrower to Lender hereunder, under the Note, this Security Instrument, the Loan Agreement between Borrower and Lender of even date herewith (the "Loan Agreement"), or under any other instrument evidencing, securing or in any way concerning the debt evidenced by the Note (collectively the "Loan Documents") except that this Security Instrument does not secure Borrower's obligations under that certain Environmental Indemnity Agreement of even date herewith from Borrower to Lender; and (d) Any and all other indebtedness, liabilities, or obligations of Borrower to Lender, of any nature whatsoever, whether now existing or hereafter created, whether direct, indirect or secondary, and any and all modifications, extensions and/or renewals thereof. BORROWER HEREBY FURTHER COVENANTS AND AGREES WITH LENDER AS FOLLOWS: ARTICLE I 1.01 Pavm&'nt of Indebtedness Borrower will pay the Note according to the tenor thereof and all other sums ndw or hereafter secured hereby promptly as the same shall become due. 1.02 Taxes: Liens and Other Charges. (a) Borrower will pay (to the extent same are not paid from the escrowed funds provided for in Paragraph 1.04), before the same become delinquent, all taxes, liens, assessments and charges of every character including all utility charges, whether public or private, already levied or assessed or that may hereafter be levied or assessed upon or against the Premises; and upon demand will furnish Lender receipted bills evidencing such payments. (b) Borrower will not suffer any mechanic's, materialman's, laborer's, statutory or other lien which might or could be prior to or equal to the lien of this Security Instrument to be created and to remain outstanding upon all or any part of the Premises. 1.03 Insurance. Borrower shall procure for, deliver to and maintain for the benefit of Lender during the term of this Security Instrument, policies of insurance in amounts, in form and in substance as set forth in and`"required by the separate Construction Loan Agreement between Lender and Borrower. 1.04 Monthly Deposits. At the option of Lender, and to further secure the payment of the taxes and assessments referred to in Paragraph 1.02 and the premiums on the insurance referred to in Paragraph 1.03, Borrower will deposit with Lender, on the due date of each monthly installment under the Note, a sum which, in the estimation of Lender, shall be equal to one-twelfth (1/12) of the annual taxes, assessments and insurance premiums on the Premises; said deposits to be held by Lender, free of interest, and free of any liens or claims on the part of creditors of Borrower and as part of the security of Lender, and to be used by Lender to pay current taxes and assessments and insurance premiums on the Premises as the same accrue and are payable. Said deposits shall not be, nor be deemed to be, trust funds but may be corhmingled with the general funds of Lender. If said deposits are insufficient to pay the taxes and assessments and insurance premiums in full as the same become payable, Borrower will deposit with Lender such additional sum or sums as may be required in order for Lender to pay such taxes and assessments and insurance premiums in full. Upon any default in the provisions of this Security Instrument or the Note, Lender may, at its option, apply any money in the fund resulting from said deposits to the payment of the indebtedness secured hereby in such manner as it may elect. 1.05 Condemnation. If all or any material portion of the Premises shall be damaged or taken through condemnation (which term when used in this Security Instrument shall include any damage or taking by any governmental authority and any transfer by private sale in lieu thereof), either temporarily or permanently, then the entire indebtedness secured hereby shall, at the option of Lender, become immediately' due and payable. Lender shall be entitled to receive. all compensation, awards and other payments or relief thereof. Lender is hereby authorized, at its option, to commence, appear in and prosecute, in its own or in Borrower's name, any action or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith. All such compensation awards, damages, claims, rights of action and proceeds and the right thereto are hereby assigned by Borrower to Lender.' Unless Borrower is required to restore the Premises to substantially the same condition as existed prior to condemnation by Lender, the net proceeds after deducting all of Lender's expenses incurred in the collection and administration of such sums, including reasonable attorneys' 1959029 I fees, may be applied, at Lender's option (a) to the payment of the indebtedness hereby secured, whether or not due and in whatever order Lender elects, (b) to the repair and/or restoration of the Premises or (c) for any other purposes or objects for which Lender is entitled to advance funds under this Security Instrument, all without affecting the lien or priority of this Security Instrument; and any balance of such moneys then remaining shall be paid to Borrower. 1.06. Compliance with Laws• Repairs; Damage by Fire or other Casualty. (a) Borrower will keep the buildings; parking areas, roads and walkways, landscaping and all other improvements of any kind now or hereafter erected on the Land or any part thereof, and the fixtures, furnishings and equipment therein and thereon, in first class condition and repair, will not commit or suffer any waste and will not do or suffer to be done anything which will increase the risk of fire or other hazard to the Premises or any part thereof. Borrower will take appropriate and necessary measures to secure the Premises against burglars, thieves, arsonists, and other parties who might steal, damage or destroy 'improvements, materials, equipment and other items built, stored, or located thereon. (b) Borrower will not remove or demolish nor alter the structural character of any improvement prese4ly located or hereafter constructed on the Land without the written consent of Lender. (c) If the'Premises or any part thereof is damaged by fire or any other cause, Borrower will give immediate written notice thereof to Lender. (d) Lender or its representative is hereby authorized to enter upon and inspect the Premises at any time during normal business hours. (e) Borrower will promptly comply with all present and future laws, ordinances, rules and regulations of any governmental authority affecting the Premises or any part thereof. Borrower will deliver to Lender within ten (10) days after Borrower's receipt thereof copies of any additional governmental permits, approvals, disapprovals or other notices issued with regard to the Premises or any portion thereof. M If all or any part of the Premises shall be damaged by fire or other casualty, Borrower will promptly restore the Premises to the equivalent of its original condition, or, if the damaged improvements are under construction at the time, will initiate and diligently pursue restoration and the remainder of constrdction; and if a part of the Premises shall be damaged through condemnation, Borrower will promptly restore, repair or alter the remaining portions of the Premises in a manner satisfactory to Lender. Notwithstanding the foregoing, Borrower shall not be obligated to so restore unless in each instance, Lender agrees to make available to Borrower (pursuant to the procedures set forth in Paragraphs " 1.03 and 1.05 hereof) any net insurance or condemnation proceeds actually received by Lender hereunder in connection with such casualty loss or condemnation, to the extent such proceeds are required to defray the expense of such restoration. In the event all or any portion of the Premises shall be damaged or destroyed by fire or other casualty or by condemnation, Borrower shall promptly deposit with Lender a sum equal to the amount by which the estimated cost of the restoration of the Premises (as determined by an independent contractor which will be chosen by Lender in Lender's sole discretion and the expense of which will be paid by Borrower) exceeds the actual net insurance or condemnation proceeds received by Lender in connection with such damage or destruction. 1.07 Security Agreement Insofar as (i) any of the property listed in paragraphs (b) through (d) on page 2 hereof, (ii) all other personal property either referred to or described in this Security Instrument, or in any way connected with the use or enjoyment of the Premises, and (iii) any and all building permits, zoning certificates, occupancy arrangements and permits, licenses, concessions, other agreements which grant a possessory interest, rents, issues, profits, revenues, proceeds, awards, accounts, security deposits and other benefits now or hereafter arising from the use and enjoyment of the Premises or any part thereof is concerned, this Security Instrument is hereby made and declared to be a security agreement, encumbering each and every item of personal property or fixtures described herein, in compliance with the provisions of the Uniform Commercial Code as enacted in the state in which the Premises ` are located, and Borrower does hereby grant to Lender a continuing lien and security interest in and to all of said property and the proceeds thereof and all after-acquired property relating thereto to further secure the obligations of Borrower under the Note and the other Loan Documents and all other indebtedness secured hereby. A financing statement or statements reciting this 1959IG92 52 Security Instrument to be a security agreement, affecting all of said property aforementioned, shall be executed by Borrower and Lender and appropriately filed. Borrower covenants and agrees that, prior to changing its name, identity or structure, it will so notify Lender and will promptly execute any financing statements or other instruments deemed necessary by Lender to prevent any filed financing statement from becoming seriously misleading or losing its perfected status. The remedies for any violation of the covenants, terms and conditions of the security agreement herein contained shall be (i) as prescribed herein, or (ii) as prescribed by general law, or (iii) as prescribed by the specific statutory consequences now or here after enacted and specified in said Uniform Commercial Code, all at Lender's sole election. Borrower and Lender agree that the filing of such financing statement(s) in the records normally having to do with personal property shall never be construed as in anywise derogating from or impairing this declaration and hereby stated intention of Borrower and Lender that every thing used in connection with the production of income from the Premises and/or adapted for use therein and/or which is described or reflected in this Security Instrument, is, and at all times and for all purposes and in all proceedings both legal or equitable shall be, regarded as part of the real estate irrespective of whether (a) any such item is physically attached to the improvements, (b) serial numbers are used for the better identification of certain items capable of being thus identified in a recital contained herein, or (c) any such item is referred to or reflected in any such financing statement(s) so filed at any time. The information contained herein is provided in order that this Security Instrument shall comply with the requirements of the Uniform Commercial Code, as enacted in the state in which the Premises are located, for instruments to be filed as financing statements. The "Debtor" is the Borrower hereunder; the Secured Party is the Lender herein, the principal place of business of the "Debtor" is as set forth on Page 1 of this Security Instrument, the mailing addresses of the "Debtor" and the' "Secured party" are as set forth on page 1 of this Security Instrument, and the types or items of collateral are as described hereinabove. 1.08 Expenses. Borrower will pay or reimburse Lender, upon demand therefore, for all attorneys' fees, costs and expenses incurred by Lender in connection with administering or dealing with the loan secured by this Security Instrument, in connection with any amendment, extension or renewal thereof, or in connection with any suit, action, legal proceeding or dispute of any kind in which Lender is made a party or appears as party plaintiff or defendant, affecting the indebtedness secured hereby, this `Security Instrument or the interest created herein, or the Premises, including, but not limited to, any condemnation action involving the Premises or any action to protect the security hereof; and any such` amounts paid by Lender shall be added to the indebtedness secured by the lien of this Security Instrument. 1.09 Subr ) ation. Lender shall be subrogated to the claims and liens of all parties whose claims or liens are discharged or paid with the proceeds of the indebtedness secured hereby. 1.10 Books. Records._ Accounts and Annual Reports Borrower will keep and maintain or will cause to be kept and maintained proper and accurate books, records and accounts reflecting all receipts (including Loan proceeds) and all expenses related to the construction and operation of the Premises or in connection with any services, equipment or furnishings provided in connection with the construction or operation of the Premises. Lender shall have the right from time to time at all times during normal business hours to examine such books, records and accounts at the office of Borrower or such other person or entity maintaining such books, records and accounts and to make copies or extracts thereof as Lender shall desire. 1.11 Limit 'of Validity. If from any circumstances whatsoever fulfillment of any provision of this Security Instrument or of the Note, at the time performance of such provision shall be due, shall involve transcending the limit of validity presently prescribed by any applicable usury statute or any other applicable law, with regard to obligations of like character and amount, then ipso facto the obligation to be fulfilled shall be reduced to the limit of such validity, so that in no event shall any exaction be possible under this Security Instrument or under the Note that is in excess of the current limit of such validity, but such obligation shall be fulfilled to the limit of such validity. The provisions of this Paragraph 1.11 shall control every other provision of this Security Instrument and of the Note. 1.12 No Further Encumbrances. Borrower shall not, directly or indirectly (including, without limitation, by equipment leasing or similar arrangements, or by pledge or hypothecation of stock, bonds, partnership interests in Borrower, or by pledge or hypothecation of any interest in any partner of Borrower), further encumber the Premises, or any part thereof, it being understood by Borrower that the Premises, and all parts thereof, shall remain free and clear of any and all debt instruments or other obligations securing the repayment of money or any other obligations. 1.13 Restrictions on Transfers; Prohibition A ainst Occu anc . Borrower shall not, without I959rG0 93 first obtaining the prior written consent of Lender (which may be given or withheld by Lender in Lender's sole discretion), whether by operation of law or otherwise and whether with or without consideration, (i) transfer, sell, conveyor assign all or any portion of the Premises, or contract to do any of the foregoing, including, with out limitation, options to purchase and so called "installment sales contracts", "land contracts", "bonds for title", or "contracts for deed", (ii) ground lease or sublease all or any substantial portion of the Premises or change the legal possession or use thereof, or (iii) permit the dilution, transfer, pledge, hypothecation or encumbrance of any general partner's partnership interest in Borrower; or of any stock, partnership or beneficial interests in any general partner of Borrower which is a corporation, partnership or a trust. Without limiting the generality of the preceding sentence, the prior written consent of Lender shall be required for any transfer made to a subsidiary or affiliate entity of Borrower, any transfer made to a reconstituted general or limited partnership, transfers by any partnership to its individual partners or vice versa, any transfer by any corporation to its stockholders or vice versa, and any corporate merger or consolidation. In the event that Lender, in Lender's sole discretion, is willing to consent to a transfer which would otherwise be prohibited by this paragraph, Lender may condition its consent on such terms as it desires, including, without limitation, an increase in the interest rate of the Note (and recalculation of the amortization provisions thereof), and the requirement that Borrower pay a transfer fee, together with any expenses incurred by Lender in connection with the granting of such consent (including, without limitation, attorneys' fees) . Borrower will not allow the purchaser of the residence to be built on the Premises, nor any tenant or any other party, to take possession of, reside in, or otherwise gain possessory rights on or over the Premises until the Note has been paid and satisfied in full. ARTICLE II 2.01 Events of Default. The terms "Default", "Event of Default" or "Events of Default", wherever used in this Security Instrument, shall mean anyone or more of the following events: (a) Default in the payment of any principal, interest or other charges in respect of any of the indebtedness secured hereby for more than ten (10) days after the due date thereof, (b) Default in the observance or performance of any covenant or agreement of Borrower [other than those set forth in Paragraph 2.01(a) above] herein set forth or set forth in any of the Loan Documents or any other agreement, note or instrument heretofore or hereafter executed by Borrower in favor of Lender for more than fifteen (15) days after written notice from Lender to Borrower of such default; (c) Any warranty or representation of Borrower herein contained, or contained in any instrument, transfer,' certificate, statement, conveyance, assignment or loan agreement given with respect to the Indebtedness hereby, shall prove untrue or misleading in any material aspect; (d) Should the Premises be subject to actual or threatened waste, or any part thereof be removed, demolished or materially altered so that the value of the Premises be materially diminished except as provided for in Paragraphs 1.03 and 1.05 herein; (e) Should any federal tax lien or claim of lien for labor or material be filed of record against Borrower or,the Premises and not be removed by payment or bond within ten (10) days from date of recording; (0 Should any claim of priority to this Security Instrument by title, lien or otherwise be asserted in any legal or equitable proceeding; (g) Should Borrower make any assignment for the benefit of creditors, or should a receiver, liquidator or trustee of Borrower or of any of Borrower's property be appointed, or should any petition for the bankruptcy, reorganization or arrangement of Borrower, pursuant to the Federal Bankruptcy Act or any similar statute, be filed, or should Borrower be adjudicated a bankrupt or insolvent, or should Borrower in any proceeding admit his insolvency or inability to pay his debts as they fall due or should Borrower, if a?corporation, be dissolved or partitioned, or, if a trust, be terminated or expire; or (h) Should any event occur under any instrument, security instrument or agreement, given or made by Borrower to or with any third party, which would authorize the acceleration of any secured indebtedness to any, ,such third party the acceleration of which would materially affect Borrower's ability to pay when due any amounts owed to lender. 1959PGO294 (i) Borrower shall at any time deliver or cause to be delivered to lender a notice pursuant to 42 Pa, C.SA § 8143 electing to limit the indebtedness secured by this Mortgage. 2.02 Acceleration of Maturity If an Event of Default shall have occurred, then the entire indebtedness secured hereby shall, at the option of lender, immediately become due and payable without notice or demand, time being of the essence of this Security Instrument; and no omission on the part of lender to exercise such option when entitled to do so shall be construed as a waiver of such right. 2.03 Lender's Right to Enter and Take Possession Complete Construction Sell and/or O erate (a) If an Event of Default shall have occurred, Borrower, upon demand of lender, shall forthwith surrender to Lender the actual possession of the Premises, and Lender itself, or by such officers, agents, or independent contractors as it may appoint, may enter and take possession of the Premises without the appointment of a receiver, or an application therefore, and may exclude Borrower and its agents, employees, and representatives wholly therefrom, and may have joint access with Borrower to theibooks, papers and accounts of Borrower, relating to the Premises. c,. (b) If Borrower shall for any reason fail to surrender or deliver the Premises or any part thereof after such demand by Lender, lender may obtain a judgment or decree conferring upon Lender the right to immediate possession or requiring Borrower to deliver immediate possession of the Premises to Lender, to the entry of which judgment or decree Borrower hereby specifically consents. Borrower will pay to lender, upon demand, all expenses of obtaining such judgment or decree, including reasonable compensation to Lender, its attorneys and agents; and all such expenses and compensation shall, until paid, be secured by the lien of this Security Instrument. FOR SUCH PURPOSES, BORROWER HEREBY AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR BORROWER, TO SIGN AN AGREEMENT FOR ENTERING AN AMICABLE ACTION OF EJECTMENT FOR POSSESSION OF THE PREMISES, AND TO CONFESS JUDGMENT THEREIN AGAINST BORROWER IN FAVOR OF LENDER, WHEREUPON A WRIT MAY FORTHWITH ISSUE FOR THE IMMEDIATE POSSESSION OF THE PREMISES, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER; AND FOR SO DOING THIS SECURITY INSTRUMENT OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. BORROWER ACKNOWLEDGES THAT BY GRANTING THE FOREGOING RIGHT TO CONFESS JUDGMENT AGAINST BORROWER, BORROWER HAS KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND, ON THE ADVICE OF SEPARATE COUNSEL OF BORROWER, UNCONDITIONALLY WAIVED ANY AND ALL RIGHTS BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR A HEARING PRIOR TO THE ENTRY OF A JUDGMENT IN EJECTMENT AGAINST BORROWER; (c) Upon every such entering upon or taking of possession, Lender may hold, store, use, operate, manage and` control the Premises and conduct the business thereof, and, from time to time (i) make all necessary and proper maintenance, repairs, renewals, replacements, additions, betterments and improvements `thereto and thereon and purchase or otherwise acquire additional fixtures, personalty and other` property; (ii) assume complete control over construction of the improvements to be built on the Premises; (iii) assume all rights under and fully utilize the plans, specifications, building permits, licenses, occupancy certificates, subcontracts, supplier agreements, service agreements, and all similar agreements and intangible assets associated with the Premises and the construction of improvements thereon, with full authority to amend, terminate, and replace any and all such agreements and arrangements as lender shall deem appropriate; (iv) insure or keep the Premises insured; (v) manage and operate the Premises and exercise all the rights and powers of Borrower to the same extent as Borrower could in its own name or otherwise with respect to the same; (vi) enter into contracts for the sale of all or a portion of the Premises and improvements constructed or to be constructed thereon, including the right to assume and exercise contracts of sale previously executed by or on behalf of Borrower; (vii) enter into any and all agreements with respect to the exercise by others of any of the powers herein granted Lender, all as Lender from time to time may determine to be in its best interest. Lender may collect and receive any and all rents, issues, profits and revenues from the Premises, including those past due as well as those accruing thereafter, and shall have the benefit of all operating expenses and deposits prepaid by Borrower. (d) If and when requested to do so by lender, Borrower will execute and deliver to Lender or its agent a deed in lieu of public sale or foreclosure, transferring fee simple title to the Premises and ! 99PG929' all improvements thereon to lender or its designee, without payment of any consideration and without reserving any rights to the Premises. Following such conveyance, lender shall have complete authority to complete construction of the improvements on the Premises and to sell the Premises and all improvements thereon at such price or prices as lender may deem reasonable and appropriate under market circumstances then prevailing. In the event the net proceeds of such sale or sales shall be less than the total outstanding principal balance of this loan, plus all accrued and unpaid interest and default interest, plus expenses paid or incurred by lender and additional advances made by lender in order to complete construction of the improvements, then Lender, upon notice to Borrower, shall have the right to assert a claim for deficiency against Borrower, in which event Borrower shall be obligated to pay the full amount of such deficiency not later than thirty (30) days after receipt of such notice. In the event Borrower shall fail to pay the full amount of said deficiency as and when required hereunder, then lender shall have all rights and remedies set forth in this Security Instrument, in the Note secured hereby, and in all other loan Documents in its efforts to collect said deficiency. 2.04 Performance by Lender of Defaults by Borrower If Borrower shall default in the payment, performance or observance of any term, covenant or condition of this Security Instrument, lender may, at its option, without waiving the right to accelerate the maturity of the indebtedness secured hereby, pay; perform or observe the same, and all payments made or costs or expenses incurred by lender in connection therewith, shall be secured hereby and shall be, without demand, immediately repaid `'by Borrower to lender with interest thereon at the default interest rate then applicable under the Note. Lender shall be the sole judge of the necessity for any such actions and of the amounts to be paid. Lender is hereby empowered to enter and to authorize others to enter upon the Premises or any part thereof for the purpose of performing or observing any such defaulted term, covenant or condition without thereby becoming liable to Borrower or any person in possession holding under Borrower. 2.05 Receiver. If an Event of Default shall occur, lender, upon application to a court of competent jurisdiction, shall be entitled as a matter of strict right, without regard to the value. of any security for the indebtedness secured hereby or the solvency of any party bound for its payment, to the appointment of a receiver to take possession of the Premises, and Borrower does hereby irrevocably consent to the appointment of such receiver or receivers, waives notice of such appointment, of any request therefor or hearing in connection therewith, and any and all defenses to such appointment, agrees not to oppose„ any application therefor by lender, and agrees that such appointment shall in no manner impair, prejudice or otherwise affect the rights of lender to application of rents as provided in this Security Instrument. Nothing herein is to be construed to deprive lender of any other right, remedy or privilege it may have under the law to have a receiver appointed. The receiver shall have all of the rights and powers permitted under the laws of the state wherein the land is situated. Borrower will pay to lender upon demand all expenses, including receiver's fees, attorney's fees, costs and agent's compensation, incurred pursuant to the provisions of this Paragraph 2.05; and all such expenses shall be secured by this Security Instrument 2.06 Enforcement (a) If an Event of Default shall have occurred, Lender may proceed with the commencement of foreclosure proceedings, as provided in Paragraph 5.02 of this Security Instrument. The Borrower consents to adjournment from time to time of any sale made in such foreclosure proceeding under or by virtue of this Security Instrument by announcement at the time and place appointed for such sale or for such adjourned sale or sales. Upon completion of any sale or sales made by the Lender under 'or by virtue of this Security Instrument, the Lender, or any officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold. Any such sale or sales made under or by virtue of this Security Instrument shall operate to divest all of the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the Borrower in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against the Borrower and against any and all persons claiming or who may claim the same, or any part thereof, from, through or under the Borrower. (b) If an "Event of Default shall have occurred, lender may, in addition to and not in abrogation of the rights covered under subparagraph (a) of this Paragraph 2.06, either with or without entry or taking possession as herein provided or otherwise, proceed by a suit or suits in law or in equity or by any other appropriate proceeding or remedy to pursue any other remedy available to it, all as lender shall determine most effectual for such purposes. 'U1111% 1959PPU 0296 2.07 Purchase by Lender. Upon any public auction or foreclosure sale, Lender may bid for and purchase the Premises and shall be entitled to apply all or any part of the indebtedness secured hereby as a credit to the purchase price. 2.08 Application of Proceeds of Sale. In the event of a public sale or foreclosure sale of the Premises, the proceeds of said sale shall be applied, unless otherwise required by law, first, to the expenses of such sale and of all proceedings in connection therewith, including attorney's and trustee's fees, then to insurance premiums, liens, assessments, taxes and charges including utility charges advanced by Lender, then to payment of all other sums due lender except principal and interest, then to payment of accrued interest, then to payment of principal, and finally the remainder, if any, shall be paid to Borrower. 2.09 Borrower as Tenant Holding Over. In the event of any such foreclosure sale by lender, Borrower shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. 2.10 Waiver of Annraisement Valuation Stay. Homestead Extension and Redemption Laws Borrower, for Borrower, Borrower's heirs, devisees, representatives, successors and assigns, and for any and all persons ever claiming any interest in the Property, agrees to the full extent permitted by law, that in case of a default on the part of Borrower hereunder, neither Borrower nor anyone claiming through or under it shall or will set up, claim or seek to take advantage of any- appraisement, valuation, stay, extension, homestead, moratorium, reinstatement, or forebearance, exemption or redemption Jaws now or hereafter in force, in order to prevent or hinder the enforcement or foreclosure of this.Security Instrument, or the absolute sale of the Premises, or the final and absolute putting into possession thereof, immediately after such sale, of the purchasers thereof, and Borrower, for itself and all who may at any time claim through or under it, hereby waives to the full extent that it may lawfully so do, notice of intention to mature or declare due the whole of the indebtedness secured hereby, notice of election to mature or declare due the whole of the indebtedness secured hereby, and the benefit of all such laws, and any and all right to have the assets comprised in the security intended to be created hereby marshaled upon any foreclosure of the lien hereof. 2.11 Uniform Commercial Code. Without limitation of Lender's rights of enforcement with respect to the property described in Paragraph 1.07 hereof (hereafter the Collateral) or any part thereof in accordance with the procedures for foreclosure of real estate, Lender may exercise its rights of enforcement with respect to the Collateral or any part thereof under the Uniform Commercial Code of the state in which the Collateral is located as amended (or under the Uniform Commercial Code in force in any other state to the extent the same is applicable law) and in conjunction with, in addition to or in substitution for those rights and remedies: (1) Lender may enter upon Borrower's premises to take possession of, assemble and collect the Collateral or, to the extent and for those items of the Collateral permitted under applicable law, to render it unusable; (2) Lender may require Borrower to assemble the Collateral and make it available at a place Lender designates which is mutually convenient to allow Lender to take possession or dispose of the Collateral; (3) written notice mailed to Borrower as provided herein at least five (5) days prior to the date of public sale of the Collateral or prior to the date after which private sale of the Collateral will be made shall constitute reasonable notice; (4) any sale made pursuant to the provisions of this paragraph shall be deemed to have been a public sale conducted in a commercially reasonable manner if held contemporaneously with and upon the same notice as required for the sale of the Property under power of sale as provided in this Security Instrument; (5) in the event of a foreclosure sale, whether made by Lender under the terms hereof, or under judgment of a court, the Collateral and the other Premises may, at the option of Lender, be sold as a whole; (6) it shall not be necessary that Lender take possession of the Collateral or any part thereof prior to the time that any sale pursuant to the provisions of this Paragraph is conducted and it shall not be necessary that the Collateral or any part' thereof be present at the location of such sale; (7) with respect to application of proceeds from disposition of the Collateral under Paragraph 2.08 hereof, the costs and expenses incident to disposition shall include the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and the reasonable attorneys' fees and legal expenses incurred by Lender; (8) any and all statements of fact or other recitals made in any bill of sale or assignment or other instrument evidencing any foreclosure sale hereunder as to nonpayment of the indebtedness secured hereby or as to the occurrence of any default, or as to Lender having declared all of such indebtedness to be due and payable, or as to notice of time, place and terms of sale and of the properties to be sold having been duly given, or as to any other act or thing having been duly done by Lender, shall be taken as prima facie evidence of the truth of the facts so stated and recited; and (9) Lender may appoint or delegate anyone or more persons as agent to perform any act or acts necessary or incident to any sale held by Lender, including the sending of notices and the conduct of the sale, but in the name and on behalf of Lender. 2.12 Discontinuance of Proceedings and Restoration of the Parties In case Lender shall have proceeded to enforce any right, power or remedy under this Security Instrument by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to Lender, then and in every such case Borrower and Lender shall be restored to their former positions and rights hereunder, and all rights, powers and remedies of Lender shall continue as if no such proceeding had been undertaken. 2.13 Remedies Cumulative. No right, power or remedy conferred upon or reserved to Lender by this Security Instrument is intended to be exclusive of any other right, power or remedy, but each and every right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity or by statute. 2.14 Waiver (a) No delay or omission of Lender or of any holder of the Note to exercise any right, power or remedy accruing upon any default shall exhaust or impair any such right, power or remedy or shall be construed to' be a waiver of any such default or acquiescence therein; and every right, power and remedy given by this Security Instrument to Lender may be exercised from time to time and as often as may be deemed expedient by Lender. No consent or waiver, express or implied, by Lender to or of any breach or default by Borrower in the performance of the obligations here under shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of Borrower hereunder. Failure on the part of Lender to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by Lender of its rights hereunder or impair any rights, powers or remedies arising by virtue of any breach or default by Borrower. (b) If Lender (i) grants forbearance or an extension of time for the payment of any sums secured hereby; (ii) takes other or additional security for the payment of any sums secured hereby; (iii) waives or does not exercise any right granted herein or in the Note; (iv) releases any part of the Premises from the lien or security title of this Security Instrument or otherwise changes any of the terms, covenants, conditions or agreements of the Note or this Security Instrument; (v) consents to the filing of any map, plat or replat affecting the Premises; (vi) consents to the granting of any easement or other right affecting the Premises; or (vii) makes or consents to any agreement subordinating the lien or security title hereof, any such act or omission shall not release, discharge, modify, change or affect the original liability under the Note, this Security Instrument or any other obligation of Borrower or any subsequent purchaser of the Premises or any part thereof, or any maker, co-signer, endorser, surety or guarantor; nor shall any such act or omission preclude Lender from exercising any right, power or privilege herein granted or intended to be granted in the event of any default then made or of any subsequent default; nor, except as otherwise expressly provided in an instrument or instruments executed by Lender, shall the lien or security title of this Security Instrument be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or any part of the Premises, Lender, without notice, is hereby authorized and empowered to deal with any such vendee or transferee with reference to the Premises or the indebtedness secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the original parties hereto and without in any way releasing or discharging any liabilities, obligations or undertakings. 2.15 Suits to Protect the Premises Lender shall have power (a) to institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Premises by any acts which may be unlawful or any violation of this Security Instrument, (b) to preserve or protect its interest in the Premises and in the rents, issues, profits and revenues arising therefrom, and (c) to restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be' unconstitutional or otherwise invalid, if the enforcement of or compliance with such enactment, rule `or order would impair the security hereunder or be prejudicial to the interest of Lender. 2.16 Lender May File Proofs of Claim In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting Borrower, or any of its creditors or property, Lender, to the extent permitted by law, shall be entitled to 19`59PG0298 file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of Lender allowed in such proceedings for the entire amount due and payable by Borrower under this Security Instrument at the date of the institution of such proceedings and for any additional amount which may become due and payable by Borrower hereunder after such date. ARTICLE IIII 3.01 Successors and Assigns This Security Instrument shall inure to the benefit of and be binding upon Borrower and Lender and their respective heirs, executors, legal representatives, successors and permitted assigns. Whenever a reference is made in this Security Instrument to Borrower or Lender such reference shall be deemed to include a reference to the heirs, executors, legal representatives, successors and permitted assigns thereof. 3.02 Terminology. All personal pronouns used in this Security Instrument whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural, and vice versA. Titles and Articles are for convenience only and neither limit nor amplify the provisions of this Security Instrument itself, and all references herein to Articles, Paragraphs or subparagraphs thereof, shall refer to the corresponding Articles, Paragraphs or subparagraphs thereof, of this Security Instrument unless specific reference is made to such Articles, paragraphs or sub paragraphs thereof of another document or instrument. 3.03 Severability. If any provision of this Security instrument or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Security Instrument and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. 3.04 Applicable Law. Borrower agrees that this Security Instrument shall be construed, interpreted and enforced with the laws of the state in which the Premises are located; provided. however, that if the conflict or choice of law rules of such state would choose the law of another state, Borrower waives such rules and agrees that the substantive, procedural and constitutional law of the state in which the Premises are located shall nonetheless govern. 3.05 Demands or Notices. Any demand or notice required or permitted to be given hereunder shall be given in writing and shall be deemed given and received in accordance with the requirements of Paragraph 18 of the Note and shall otherwise comply with such requirements. 3.06 Time of the Essence. Time is of the essence with respect to each and every covenant, agreement and obligation of Borrower under this Security Instrument. 3.07 Interest on Advances: Compliance with Usu Laws If Lender advances any sum under this Security Instrument, such sum shall bear interest from the date advanced until paid at the then applicable default interest rate under the Note. It is the intent of Borrower and Lender and all other parties to the Loan Documents to conform to and contract in strict compliance with applicable usury law from time to time in effect. All agreements between Lender and Borrower (or any other party liable with respect to any indebtedness under the Loan Documents) are hereby limited by the provisions of this Section which shall override and control all such agreements, whether now existing or hereafter arising.' In no way, nor in any event or contingency (including but not limited to prepayment, default, demand for payment, or acceleration of the maturity of any obligation), shall the interest taken, reserved, contracted for, charged, chargeable, or received under this Deed, the Note or any other Loan Document or otherwise, exceed the maximum nonusurious amount permitted by applicable law (the "Maximum Amount"). If, from any possible construction of any document, interest would otherwise be payable in excess of the Maximum Amount, any such construction shall be subject to the provisions of this Section and such document shall ipso facto be automatically reformed and the interest payable shall be automatically reduced to the Maximum Amount, without the necessity of execution of any amendment or new document. If Lender shall ever receive anything of value which is characterized as interest under applicable law and which would apart from this provision be in excess of the Maximum Amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Secured Indebtedness in the inverse order of its maturity and not to the payment of interest, or refunded to Borrower or the other payor thereof if and to the extent such amount which would have been excessive exceeds such unpaid principal. The right to accelerate maturity of the Note or any other Secured Indebtedness does not include the right to accelerate any interest which has not otherwise accrued on the date of such acceleration, and Lender does not intend to charge or receive any unearned interest in Ouft 1959PG0299 the event of acceleration. All interest paid or agreed to be paid to Lender shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full stated term (including any renewal or extension) of such indebtedness so that the amount of interest on account of such indebtedness does not exceed the Maximum Amount. As used in this Section, the term "applicable law" shall mean the laws of the Commonwealth of Pennsylvania or the federal laws of the United States applicable to this transaction, whichever laws allow the greater interest, as such laws now exist or may be changed or amended or come into effect in the future. 3.08 Modification or Termination The Loan Documents may only be modified or terminated by a written instrument or instruments intended for that purpose and executed by the party against which enforcement of the modification or termination is asserted. Any alleged modification or termination which is not so documented shall not be effective as to any party. 3.09 No Partnership Etc The relationship between Lender and Borrower is solely that of Lender and Borrower. Lender has no fiduciary or other special relationship with Borrower. Nothing contained in the Loan Documents is intended to create any partnership, joint venture, association or special relationship between Borrower and Lender or in any way make Lender a co-principal with Borrower with reference to the Premises. All agreed contractual duties between Borrower and Lender are set forth herein and in the other Loan Documents and any additional implied covenants or duties are hereby disclaimed. Any inferences to the contrary of any of the foregoing are hereby expressly negated. 3.10 Further Assurances. Borrower will, promptly on request of Lender, (i) correct any defect, error or omission which may be discovered in the contents, execution or acknowledgment of this Security Instrument or any other Loan Document; (ii) execute, acknowledge, deliver, procure and record and/or file such further documents (including, without limitation, further mortgages, deeds of trust, deeds to secure debt, security agreements, financing statements, continuation statements, and assignments of rents or leases) and do such further acts as may be necessary, desirable or proper to carry out more effectively the purposes of this Security Instrument and the other Loan Documents, to more fully identify and subject to the title, liens and security interests hereof any property intended to be covered hereby (including specifically, but without limitation, any renewals, additions, substitutions, replacements, or appurtenances to the Premises) or as deemed advisable by Lender to protect the title, the lien or the security interest hereunder against the rights or interests of third persons; and (iii) provide such certificates, documents, reports, information, affidavits and other instruments and do such further acts as may be necessary, desirable or proper in the reasonable determination of Lender to enable Lender to comply with the requirements or requests of any agency having jurisdiction over Lender or any examiners of such agencies with respect to the indebtedness secured hereby, Borrower or the Premises. Borrower shall pay all costs connected with any of the foregoing, which shall be a demand obligation owing by Borrower (which Borrower hereby promises to pay) to Lender pursuant to this Security Instrument. 3.11 Fees and Expenses Without limitation of any other provision of this Security Instrument or of any other Loan Document and to the extent not prohibited by applicable law, Borrower will pay, and will reimburse to Lender on demand to the extent paid by Lender: (i) all appraisal fees, filing, registration and recording fees, recordation, transfer and other taxes, brokerage fees and commissions, abstract fees, title search or examination fees, title policy and endorsement premiums and fees, uniform commercial code search fees, judgment and tax lien search fees, escrow fees, reasonable attorneys' fees actually incurred, architect fees, engineer fees, construction consultant fees, environmental inspection fees, survey fees, and all other costs and expenses of every character incurred by Borrower or Lender in connection with the preparation of the Loan Documents, the evaluation, closing and funding of the loan evidenced by the Loan Documents, and any and all amendments and supplements to this Security Instrument, the Note or any other Loan Documents or any approval, consent, waiver, release or other matter requested or required hereunder or thereunder, or otherwise attributable or chargeable to Borrower as owner of the Premises; and (ii) all costs and expenses, including reasonable attorneys' fees and expenses, actually incurred or expended in connection with the exercise of any right or remedy, or the defense of any right or remedy or the enforcement of any obligation of Borrower, hereunder or under any other Loan Document. 3.12 Taxes on Note or Deed. Borrower will promptly pay all income, franchise and other taxes owing by Borrower and any stamp, documentary, recordation and transfer taxes or other taxes (unless such payment by Borrower is prohibited by law) which may be required to be paid with respect to the Note, this Security Instrument or any other instrument evidencing or securing any of the indebtedness secured hereby. In the event of the enactment after this date of any law of any OK1959rG0 0 governmental entity applicable to Lender, the Note, the Premises or this Security Instrument deducting from the value of property for the purpose of taxation any lien or security interest thereon, or imposing upon Lender the payment of the whole or any part of the taxes or assessments or charges or liens herein required to be paid by Borrower, or changing in any way the laws relating to the taxation of deeds to secure debt, deeds of trust or mortgages or security agreements or debts secured by deeds to secure debt or mortgages or security agreements or the interest of the grantee or secured party in the property covered thereby, or the manner of collection of such taxes, so as to affect this Security Instrument or the indebtedness secured hereby or Lender, then, and in any such event, Borrower, upon demand by Lender, shall pay such taxes; assessments, charges or liens, or reimburse Lender therefor; provided, however, that if in the opinion of counsel for Lender (i) it might be unlawful to require Borrower to make such payment or (ii) the making of such payment might result in the imposition of interest beyond the maximum amount permitted by law, then and in such event, Lender may elect, by notice in writing given to Borrower, to declare all of the indebtedness secured hereby to be and become due and payable sixty (GO) days from the giving of such notice. 4.13 Estoppel Certificate Borrower shall at any time and from time to time furnish within seven (7) days of request by Lender a written statement in such form as may be required by Lender stating that (i) the Note, this Security Instrument and the other Loan Documents are valid and binding obligations of Borrower, enforceable against Borrower in accordance with their terms; (ii) the unpaid principal balance of 'the Note; (iii) the date to which interest on the Note is paid; (iv) the Note, this Security Instrument And the other Loan Documents have not been released, subordinated or modified; and (v) there are no offsets or defenses against the enforcement of the Note, this Security Instrument or any other Loan Document. If any of the Foregoing statements in clauses (i),(iv) and (v) are untrue, Borrower shall, alternatively, specify the reasons therefore. 4.14 WAIVER OF JURY TRIAL. BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, CLAIM OR PROCEEDING OF `'ANY NATURE RELATING TO THIS SECURITY INSTRUMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS SECURITY INSTRUEMNT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. BORROWER ACKNOWLEDGES, THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. ARTICLE IV 5.01 Defeasanc -/Cancellation If the Borrower shall pay the Note secured hereby in accordance with its terms, together with interest thereon, and any renewals or extensions thereof in whole or in part, all other sums secured hereby and shall comply with all of the covenants, terms and conditions of this Security Instrument, then this conveyance shall be null and void and may be canceled of record at the request and the expense of the Borrower. 5.02 Foreclosure Provisions. The Lender may institute an action of mortgage foreclosure, or take such other action as the law may allow for the enforcement thereof and realization on the mortgage security or any other security which is herein or elsewhere provided for, and proceed thereon to final judgment and execution thereon for the entire unpaid balance of the obligations, with interest, at the rates and pursuant to the methods of calculation specified in the Note and this Security Instrument to the date of default and thereafter at the post-maturity rates provided in the Note together with all other sums secured by this Security Instrument, all costs of suit, with interest at the post- maturity rates provided in the Note and this Security Instrument, on any judgment obtained by Lender from and after the date of any sheriffs sale of the Premises (which may be sold in one parcel or in such parcels, manner or order as Lender shall elect) until actual payment is made by the sheriff of the full amount due Lender and with all reasonable attorney's fees and expenses and a reasonable attorney's commission, without further stay, any law, usage or custom to the contrary notwithstanding. In the event that Lender shall have the right to foreclose this Security Instrument, Borrower authorizes Lender at its option to foreclose this Security Instrument subject to the rights of any tenants parties defendant to any such foreclosure proceeding and to foreclose their rights will not be asserted by Borrower as a defense to any proceeding instituted by Lender to collect all or any part of the obligations or any deficiency remaining unpaid after the foreclosure sale of the Premises. After application of payment of proceeds pursuant to law, the remaining proceeds of such sale or sales under this Security Instrument, whether under the assent to a decree, the power of sale, or by equitable foreclosure, shall be held by the Lender and applied in such order of priorities as the Lender in its sole discretion shall determine and the surplus, if any, to the Borrower or any person entitled thereto upon surrender and delivery to the purchaser or purchasers of the Premises, and less the enforcement costs, if any, of obtaining possession. 8KI95 fG0301 IN WITNESS WHEREOF, Borrower has executed this Security Instrument under seal, as of the day and year first above written. ATTEST: FCM BUILDERS, INC. By:,?? President Secretary "Corporate Seal" COMMONWEALTH OF PENNSYLVANIA 5 S. S. COUNTY OF ; On this the _ day of , 20Q_ before me the undersigned authority personaUy appeared, -. k iC?... _ .f C who acknowledged himself/herself to be the y `'?-j - and that as such, heA&be-- being authorized to do so, executed the foregoing ins rument for the purpose therein contained by signing his/leer name thereon as such officer and subscribed before me the day and year aforesaid. IN WITNESS WHEREOF, I have hereunto subscribed my hand and official seal. Notary u lc COMMONWEALTH OF PENNSYLVANIA MY Commission Ex ire : Michael J Notarial Seal p Pykosh, Notary Public Camp Hill Boro, Cumberland County My Commission Expires Mar. 27, 2010 Member, Pennsylvania Association of Npt-,fleq 9I959PGO302 EXHIBIT "A" ALL that certain tract of land situate in MIDDLESEX TOWNSHIP, Cumberland County, Pennsylvania, being identified as Lot 8 as shown on a plan of lot; known as Ridge Estates, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Plan Book 91 on page 8, and being more fully described as follows, to wit: BEGINNING at a point in Ridge Drive (T-571), at a common property corner of Lot #8 and Lot #9 of the Final Subdivision Plan for Ridge Estates; thence through said Ridge Drive (T-571) and along said Lot #9, South 08 degrees 27 minutes 59 seconds East, a distance of 496.19 feet to a point at a common property corner of Lot #8, Lot #9 and lands now or late of George C. Wolfe, Jr.; thence along said lands now or late of George C. Wolfe, Jr., South 83 degrees 45 minutes 17 seconds West, a distance of 199.86 feet to a point in South Middlesex Road (T-590); thence through said South Middlesex Road (T-590), North 08 degrees 30 minutes 00 seconds West, a distance of 488.94 feet to an intersecting point in South Middlesex Road (T-590) and Ridge Drive (T-571); thence through said Ridge Drive the following two (2) courses: 1. " North 82 degrees 20 minutes 44, seconds East, a distance of 133.71. feet to a point; thence 2. North 80 degrees 19 minutes 39 seconds East, a distance of 66.32 feet to a point, at a common property corner of Lot #8 and Lot #9, said point being the point of BEGINNING. SAID LOT CONTAINING a gross area of 98,285.92 square feet (2.2563) acres and a net area of 76,230.25 square feet (1.7500 acres) to the Dedicated Right-of-Way Lines of South Middlesex Road (T-590) and Ridge Drive (T-571) ALSO BEING KNOWN and numbered as 2 Ridge Drive, Carlisle, Pennsylvania, 17013. ALSO BEING KNOWN and identified by the Cumberland County Tax Assessment Office as Map and Parcel number 21-08-0573-031. FUTHER UNDER AND SUBJECT to the Protective Covenants, Restrictions and Reservations of Ridge Estates set forth in that certain instrument in the Office of the Recorder of Deeds in and for Cumberland County in Record Book 719, Page 2157. if trls to be recorded Cec y co-unty "A In C A. I959PG0303 August 16, 2007 FCM Builders, Inc Spec Home Lot 8 Ridge Drive 13 Mt. Allen Drive Mechanicsburg, PA 17055 Lezzer Capital Resources, Inc. 332 Schofield Street, P.O. Box 217 Curwensville, PA 16833 (814) 236-0220 Fax: (814) 236-2967 www.lezzerlumber.com RE: Loan Amount: $430,000.00 Maturity Date: 6/30/2007 Dear Builder: As you approach the maturity date of your loan, we wish to express our appreciation for your use of Lezzer Capital Resources Construction Lending Program. Your loan is due and payable before 9/15/2007. As a courtesy, we would ask you notify us of the method you selected to pay the loan at maturity date. Please contact us if we can assist you in assuring that the payment is received by us by the maturity date. Again, thank you for your interest in Lezzer Capital Resources and Lezzer Lumber. ger EXHIBIT 3 O •6+- O DO -? b 00 r_--7 -? Fri C?"1 ., i CO =:i7 C%A) SHERIFF'S RETURN - REGULAR CASE NO: 2007-07357 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LEZZER CAPAITAL RESOURCES INC VS FCM BAUILDERS INC TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon FCM BUILDERS INC the DEFENDANT at 1749:00 HOURS, on the 13th day of December , 2007 at 1510 THOMPSON LANE MECHANICSBURG, PA 17055 FRED C MILLER by handing to PRINCIPAL OFFICER a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 21.12 Postage .58 Surcharge 10.00 R. Thomas Kline / .00 1al`'?b7-- 49.70 12/14/2007 BCCZ Sworn and Subscibed to By: .-- p? , before me this day De uty She ff of A.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) Case No. 2007-7357 vs. ) MORTGAGE FORECLOSURE FCM BUILDERS, INC., ) Defendant. ) TO: FCM Builders, Inc. 13 Mt. Allen Drive Mechanicsburg, PA 17055 Date of Notice: January 11, 2008 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR'S OFFICE CENTRE COUNTY COURTHOUSE Room 228 BELLEFONTE, PA 16823 TELEPHONE NO. 814-355-6728 BABST CALLAND CLEMENTS ZOMNIR By: iz eth A. upuis, Esquire Attorney for Plaintiff 328 Innovation Blvd., Suite 200 State College, PA 16803 (814) 867-8055 44 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) vs. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7356 MORTGAGE FORECLOSURE CERTIFICATE OF SERVICE I, Elizabeth A. Dupuis, Esquire, of Babst Calland Clements Zomnir, do hereby certify that on this 1 Ith day of January, 2008, I served a true and correct copy of the within 10- Day Default Notice on the following persons by depositing the same in the United States Mail, postage prepaid, addressed as follows: FCM Builders, Inc. 13 Mt. Allen Drive Mechanicsburg, PA 17055 - Q14 wk A A h A L(- El be A. Dupuis, Esq ire cc: Thomas Yontosh, Lezzer Capital Respirces ?? '? ' _ _ cs.. -r, _ ?- =-? ?; ?- -rs ;c _- =? :?€_ .. ? --< M ? Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 13Shook a dcdlaxv.net Attorney for Defendant LEZZER CAPITAL RESOURCES, INC.: IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v FCM BUILDERS, INC., Defendant : No: 2007-7357 - CIVIL TERM : CIVIL ACTION: MORTGAGE FORECLOSURE NOTICE TO DEFEND AND CLAIM RIGHTS NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice 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 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas signuientes, usted tiene vienta (20) dias de plazo al partir de al fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona a por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a [as demandas en contra de su persona. Sea avisado que si usted no se fefiende, la corte tomara medidas y puede una orden contra usted sin previo aviso o notificacion y por cualquier queja o akuvui que es pedido en la peticion de demanda. Usted puedo parder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA CUYA DIRECCION SE EMCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSSGUTA ASISTENCIA LEGAL: CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Date: I- ?1- aoc)y Respectfully Submitted By: &t1-4t-v Brya . Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 Attorney for Plaintiff LEZZER CAPITAL RESOURCES, INC.: IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v No: 2007-7357 - CIVIL TERM FCM BUILDERS, INC., Defendant CIVIL ACTION: MORTGAGE FORECLOSURE DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, FCM Builders, Inc., by and through its attorneys, THE LAW OFFICE OF DARRELL C. DETHLEFS, by Bryan W. Shook, Esquire, who answers Plaintiff's Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted in Part and Denied in Part. It is admitted that Paragraph 3 of Plaintiff's Complaint does reference as Exhibit 1" as a Note and that the Note is attached to Plaintiff's Complaint. The remaining averments in Paragraph 3 of Plaintiff's Complaint contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. 4. Admitted in Part and Denied in Part. It is admitted that Paragraph 4 of Plaintiff's Complaint does reference as Exhibit "2" as a Mortgage and that the Mortgage is attached to Plaintiff's Complaint. The remaining averments in Paragraph 4 of Plaintiff's Complaint contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. 5. Denied. The averments in Paragraph 5 of Plaintiff's Complaint contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. 6. Admitted. 7. Denied. The averments in Paragraph 7 of Plaintiff's Complaint contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. 8. Denied. The averments in Paragraph 8 of Plaintiff's Complaint contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. WHEREFORE, Defendant, FCM Builders, Inc., respectfully requests that this Honorable Court dismiss Plaintiff's Complaint and enter judgment in its favor. NEW MATTER 9. The Defendant incorporates its answers to the preceding paragraphs as though fully set forth herein. 10. The Plaintiff's actions are barred or limited by the doctrine of estoppel. 11. The Plaintiff's actions are barred or limited by the doctrine of laches. 12. The Plaintiffs actions are barred or limited by the doctrine of release. 13. The Plaintiff's actions are barred or limited by the doctrine of res judicata. 14. The Plaintiff's actions are barred or limited by the doctrine of statute of frauds. 15. The Plaintiff's actions are barred or limited by the doctrine of waiver. 16. The Plaintiff has failed to provide, to Plaintiff, the notices required under Pennsylvania law prior to filing this action. WHEREFORE, Defendant, FCM Builders, Inc., demands judgment in its favor and against Plaintiff plus any other relief that this Honorable Court deems just. Respectfully Submitted, Dated: /-? I- ? ODT By: Bryan/A. Shook, Esquire I. D.# 03250 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Verification I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. FCM Builders, Inc. , Name: 1.'2i•? V LEZZER CAPITAL RESOURCES, INC.: IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v No: 2007-7357 - CIVIL TERM FCM BUILDERS, INC., Defendant CIVIL ACTION: MORTGAGE FORECLOSURE CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer with New Matter, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Lezzer Capital Resources, Inc. c/o Elizabeth A. Dupuis, Esquire 328 Innovation Blvd., Ste. 200 State College, PA 16803 Respectfu Submitted, Dated: By: W AZ,- Bryqt6%. Shook, Esquire I.D.# 203250 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiff c-> po r? C?. 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., Plaintiff, ) Case No. 2007-7357 VS. ) MORTGAGE FORECLOSURE FCM BUILDERS, INC., ) Defendant. ) TO: FCM Builders, Inc. 1510 Thompson Lane Mechanicsburg, PA 17055 Date of Notice: January 16, 2008 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR'S OFFICE CENTRE COUNTY COURTHOUSE Room 228 BELLEFONTE, PA 16823 TELEPHONE NO. 814-355-6728 BABST CALLAND CLEMENTS ZOMNIR By: izab A. Du uis, s uire Attorney for Plaintiff 328 Innovation Blvd., Suite 200 State College, PA 16803 (814) 867-8055 ?. .,," IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE CERTIFICATE OF SERVICE I, Elizabeth A. Dupuis, Esquire, of Babst Calland Clements Zomnir, do hereby certify that on this 16th day of January, 2008, I served a true and correct copy of the within 10- Day Default Notice on the following persons by depositing the same in the United States Mail, postage prepaid, addressed as follows: FCM Builders, Inc. 1510 Thompson Lane Mechanicsburg, PA 17055 1 L40 itp4p A4, n_4 E ' A. Dupuis, Es ire cc: Thomas Yontosh, Lezzer Capital Resources f"T7 N c? ? C? N? '?C1 Cs;a G.... '1" ?,? a1i?- _.:7!?? i`4J ,.7 s,..? t.?.r t,;",; ,. ?? ' .? f..: W? dk. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LEZZER CAPITAL RESOURCES, INC., Plaintiff vs. FCM BUILDERS, INC., Defendant Docket No. 2007-7357 Type of Case: Mortgage Foreclosure Reply to New Matter Filed on behalf of Plaintiff Counsel of Record for Plaintiff Elizabeth A. Dupuis, Esquire Babst Calland Clements Zomnir, PC PA I.D. Number: 80149 C. ? 7 T 1 ?y. a l IA ` ?y ;.i A ) C J n am. . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE REPLY TO NEW MATTER AND NOW here comes the Plaintiff, Lezzer Capital Resources, Inc., by and through its attorneys, Babst, Calland, Clements and Zomnir, P.C., to file the within reply to Defendant's New Matter averring as follows: 9. No response to an incorporation paragraph is required under Pennsylvania Rules of Civil Procedure. 10. Denied. Defendant states a conclusion of law for which no response is required by the Pennsylvania Rules of Civil Procedure. By way of further answer, Defendant's Answer and New Matter is devoid of any facts which would support any defense of estoppel. The amounts demanded in the Complaint remain due and owing and have been due and owing for some time. 11. Denied. Defendant states a conclusion of law for which no response is required by the Pennsylvania Rules of Civil Procedure. By way of further answer, Defendant's Answer and New Matter is devoid of any facts which would support any defense of laches. The amounts demanded in the Complaint remain due and owing and have been due and owing for some time. 12. Denied. Defendant states a conclusion of law for which no response is required by the Pennsylvania Rules of Civil Procedure. By way of further answer, Defendant's Answer and New Matter is devoid of any facts which would support any defense of release. The amounts demanded in the Complaint remain due and owing and have been due and owing for some time. 13. Denied. Defendant states a conclusion of law for which no response is required by the Pennsylvania Rules of Civil Procedure. By way of further answer, Defendant's Answer and New Matter is devoid of any facts which would support any defense of res judicata. The amounts demanded in the Complaint remain due and owing and have been due and owing for some time. 14. Denied. Defendant states a conclusion of law for which no response is required by the Pennsylvania Rules of Civil Procedure. By way of further answer, Defendant's Answer and New Matter is devoid of any facts which would support any defense of statute of frauds. The amounts demanded in the Complaint remain due and owing and have been due and owing for some time. 15. Denied. Defendant states a conclusion of law for which no response is required by the Pennsylvania Rules of Civil Procedure. By way of further answer, Defendant's Answer and New Matter is devoid of any facts which would support any defense of waiver. The amounts demanded in the Complaint remain due and owing and have been due and owing for some time. 16. Denied. Defendant states a conclusion of law for which no response is required by the Pennsylvania Rules of Civil Procedure. By way of further answer, Plaintiff did attach to its Complaint a notice of the default under the Note and Mortgage instrument. The Note and Mortgage instruments are commercial obligations, the funds being used for the construction of spec homes, and no further notices are required under Pennsylvania law. 2 WHEREFORE, Plaintiff respectfully requests that the Defendant's New Matter be dismissed with prejudice. BABST CALLAND CLEMENTS ZOMNIR, PC By: 54 ?/ Elizabet . Dupuis, Esqu e Attorney for Plaintiff 328 Innovation Boulevard, Suite 200 State College, PA 16803 (814) 867-8055 Attorney I.D. No. 80149 3 VERIFICATION I, THOMAS YONTOSH, Credit Manager for LEZZER CAPITAL RESOURCES, INC., verify that the statements contained in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Dated: ) -Z.08 ureait manager Lezzer Capital Resources, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Reply to New Matter was served on the following by depositing the same within the custody of the United States Postal Service, first-class mail, postage prepared, addressed to: Bryan W. Shook, Esquire 2132 Market Street Camp Hill, PA 17011 BABST CALLAND CLEMENTS ZOMNIR, PC By: h4l& Elizabe A. Dupuis, E quire Attorney for Plaintiff 328 Innovation Boulevard, Suite 200 State College, PA 16803 (814) 867-8055 Attorney I.D. No. 80149 Date: J-aq-0ff (-' f1'? !'.? ^?? ?Z ! ?`? '? t '.. ._. .1.. r -- .t?i X71 _?. ..... r ?? ' ^n ?. f :7 .,? ?.... y 1 ? ?, .? <w• Robert E. Chernicoff, Esquire PA Supreme Court ID # 23380 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEZZER CAPITAL RESOURCES INC., Plaintiff VS. CIVIL ACTION - LAW No. 07-7357 FCM BUILDERS, INC., Defendant NOTICE OF STAY NOTICE IS HEREBY GIVEN that FCM Builders, Inc., above-named Defendant, has filed a Petition under Chapter 11 of the United States Bankruptcy Code to Case No. 1-08-00711 and as a result thereof, the above-captioned action is stayed until further Order of the United States Bankruptcy Court. The undersigned executes this Notice for purposes of giving notice only; and the providing of this Notice is not intended to enter an appearance in the within case. Respectfully submitted, & CHERNICOFF, P.C. Date: March 13, 2008 B Robert E. Chernic s I.D. #23380 2320 North Second Street C P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 Robert E. Chernicoff, Esquire PA Supreme Court ID # 23380 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEZZER CAPITAL RESOURCES INC., Plaintiff CIVIL ACTION - LAW No. 07-7357 VS. FCM BUILDERS, INC., Defendant CERTIFICATE OF SERVICE I, Lisa Fuge, do hereby certify that a true and correct copy of the NOTICE OF STAY was sent by first class mail, postage prepaid on this day to the following: Elizabeth A. Dupuis, Esquire Babst Calland Clements Zomnir, P.C. 328 Innovation Blvd. Suite 200 State College, PA 16803 Respectfully submitted, CUNNINGHAM & CHERNICOFF, P.C. Date: March 13, 2008 FAHome\LFUGE\FCM BUILDERS\N0TICEBK4.wpd B 6aujeevNralegal 2 7D _ IWO L A AW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE STIPULATION TO ENTER JUDGMENT ENTERED INTO BETWEEN PLAINTIFF. LEZZER CAPITAL RESOURCES. AND DEFENDANT. FCM BUILDERS. INC. AND NOW comes Plaintiff, Lezzer Capital Resources, Inc., by and through its attorneys, Babst, Calland, Clements & Zomnir, P.C., and Defendant, FCM Builders, Inc., by and through its attorneys, Cunningham and Chemicoff, P.C., to hereby stipulate and agree as follows: 1. Plaintiff Lezzer Capital Resources ("Lezzer") filed a Complaint in Mortgage Foreclosure, to the above number and term on December 5, 2007, and named as Defendant FCM Builders, Inc. ("FCM"). 2. On or about January 22, 2008, Defendant FCM filed an Answer and New Matter to which Plaintiff Lezzer filed a reply in February, 2008. 3. On or about February 29, 2008, Defendant FCM filed for protection under the U.S. Bankruptcy Code, Chapter 11. All further actions against Defendant FCM were, therefore, stayed by action of the Bankruptcy Court. 4. On or about July 10, 2008, Plaintiff Lezzer filed a Motion for Relief from Stay with the Bankruptcy Court, which relief was granted by Order of Bankruptcy Court dated August 11, 2008. . 5. Defendant FCM has no objection to Plaintiff Lezzer obtaining a default judgment in its favor in order to pursue foreclosure of the property provided that Plaintiff Lezzer agree to not seek a deficiency judgment against Defendant FCM or it's guarantor, Fred Miller, for amounts remaining due under the Note and Mortgage which is the subject of the within action. Plaintiff Lezzer has so agreed. 6. Defendant FCM hereby agrees to enter into this Stipulation with Plaintiff Lezzer for the entry of a default judgment and mortgage foreclosure pursuant to the language contained in the Complaint, which is hereby the following: WHEREFORE, Plaintiff Lezzer Capital Resources, Inc. demands judgment against Defendant FCM Builders, Inc. in the amount of $455,257.76, in addition to contractual interest at a per diem rate of $91.12 from November 30, 2007 to the date of sale or until paid in full, along with attorneys' fees, costs of suit and other charges collectible under the Mortgage, and for the possession, foreclosure and sale of the mortgaged property. 7. The parties to this Stipulation agree that an appropriate Order of Court shall be entered confirming the Stipulation and the entry of a judgment in favor of Plaintiff Lezzer pursuant to the demand in the Complaint. 8. The parties to this Stipulation shall bear their respective costs in the proceeding. BABST, CALLAND, CLEMENTS & ZOMNIR, PC By: 11"Ap" NJ AM - Elizab A. (Betsy) Du uis, Esquire L "0,4 Attorney for Plaintiff 330 Innovation Boulevard, Suite 302 State College, PA 16803 (814) 867-8055 CUNNINGHAM AND CHERNICOFF, PC By Robert E. Cho're Attorney for Defen 2320 North Second Street Harrisburg, PA 17110 (717) 238-6570 o f5 ' 7 . ? t F f; t ;i i r"o ? ti r t"CJC?' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7356 MORTGAGE FORECLOSURE ORDER 2008, pursuant to a AND NOW this day of?Gc? Stipulation entered into between Plaintiff, Lezzer Capital Resources, Inc., and Defendant, FCM Builders, Inc., the following Order is hereby entered: 1. Judgment in favor of Plaintiff, Lezzer Capital Resources, Inc., and against Defendant, FCM Builders, Inc., in accordance with Plaintiffs Complaint filed of record December 5, 2007, for the foreclosure and sale of the mortgaged property located at 2 Ridge Drive, Mechanicsburg, Pennsylvania, in the amount of $422,880.65, including interest for each day beyond November 30, 2007, at a daily per diem rate of $83.61, plus interest, penalties, attorney's fees, court costs and other charges collectible under the Mortgage and for the foreclosure sale and possession of the mortgaged property. 2. Pursuant to the terms of the Stipulation between the parties, Plaintiff will not pursue a deficiency judgment against Defendant or its Guarantor of the obligations which are the subject of the within action. • -Zf-tJ ? ?..??.?[? '''r W'i???j'?J' r goI irlu VI {Vl1IASN AJNncr S Z sC Wd I ! d3S D40Z n 31vl, r + V VP I I'D Lev IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) ORDER Case No. 2007-7357 MORTGAGE FORECLOSURE AND NOW this // ` day of , 2008, pursuant to a Stipulation entered into between Plaintiff, Lezzer Capital Resources, Inc., and Defendant, FCM Builders, Inc., the following Order is hereby entered: 1. Judgment in favor of Plaintiff, Lezzer Capital Resources, Inc., and against Defendant, FCM Builders, Inc., in accordance with Plaintiffs Complaint filed of record December 5, 2007, for the foreclosure and sale of the mortgaged property located at 3403 Choco Chase, Mechanicsburg, Pennsylvania, in the amount of $455,257.76, including interest for each day beyond November 30, 2007, at a daily per diem rate of $91.12, plus interest, penalties, attorney's fees, court costs and other charges collectible under the Mortgage and for the foreclosure sale and possession of the mortgaged property. 2. Pursuant to the terms of the Stipulation between the parties, Plaintiff will not pursue a deficiency judgment against Defendant or its Guarantor of the obligations which are the subject of the within action. BY THE OURT: J. H ,0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) vs. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE PRAECIPE FOR WRIT OF EXECUTION TO: Prothonotary of Cumberland County Kindly issue a Writ of Execution in the above matter directed to the Sheriff of Centre County, and index this writ against Defendant, FCM BUILDERS, INC., whose property is located at 2 Ridge Drive, Carlisle, Cumberland County, Pennsylvania, as follows: Amount Due $ 455,257.76 Interest from November 30, 2007 to date of $ 26,698.16 Praecipe for Writ (9/18/2008) at a rate of $91.12 per diem Interest from date of Writ to sale at $91.12 $ Per diem TOTAL $ BABST, CALLAND, CLEMENTS & ZOMNIR, PC By: izab A. (Betsy) Dupuis, squire Attorney for Plaintiff 330 Innovation Boulevard, Suite 302 State College, PA 16803 (814) 867-8055 Attorney I.D. No. 80149 Dated: ?-q,3-6Y c 00 -U' _ Sb p° 0 0 0 -a 0 0 b _ c?A G D 7y cx? or ` 4' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC.; ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE AFFIDAVIT PURSUANT TO RULE 3129.1 I, Elizabeth A. Dupuis, attorney for Lezzer Capital Resources, Inc., Plaintiff in the above action, set forth as of the date of the Praecipe for Writ of Execution 2 Ridge Drive, Carlisle, Cumberland County, Pennsylvania. (Description of said real property is attached hereto as Exhibit "A" and made a part hereof.) 1. Name and last known address of reputed owner: FCM Builders, Inc. 13 Mt. Allen Drive Mechanicsburg, PA 17055 OR 1510 Thompson Lane Mechanicsburg, PA 17055 (Defendant will be served at both addresses) II. Name and last known address of Defendant: FCM Builders, Inc. 13 Mt. Allen Drive Mechanicsburg, PA 17055 III. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: 84 Lumber Company P.O. Box 365 Eighty Four, PA 15330 OF Bernstein Law Firm Counsel to 84 Lumber Suite 2200, Gulf Tower Pittsburgh, PA 15219 Berkheimer Excavation 1120 Baish Road Mechanicsburg, PA 17055 Clyde W. Vedder, Esquire Counsel to Berkheimer Excavation Morris & Vedder P.O. Box 544 York, PA 17405 Lezzer Capital Resources, Inc. P.O. Box 217 Curwensville, PA 16833 M & J Explosives, Inc. Attn: Mike Oyler 670 Longs Gap Road P.O. Box 608 Carlisle, PA 17013 Lawrence G. Frank, Esquire Counsel to M&J Explosives 2023 North Second Street Harrisburg, PA 17102 Commonwealth of PA Department of Revenue Bankruptcy Division Dept. 280946 Harrisburg, PA 17128-0496 Commonwealth of PA Department of Revenue P.O. Box 12051 Philadelphia, PA 19105 Internal Revenue Service P.O. Box 21126 Philadelphia, PA 19114-0326 2 R. or ' Cumberland County Tax Claim Bureau One Courthouse Square Carlisle, PA 17013 IV. Name and address of the last recorded holder of every mortgage of record: Lezzer Capital Resources, Inc. P.O. Box 217 Curwensville, PA 16833 V. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: C2 Construction, LLC RR 4, Box 4130 Duncannon, PA 17020 Wilson Drywall 100 Mountain View Road Shermans Dale, PA 17090 Lower Allen Township 1993 Hummel Avenue Camp Hill, PA 17011 Integrity Bank 3314 Market Street Camp Hill, PA 17011 Clayton W. Davidson, Esquire Counsel for Integrity Bank 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Leon P. Haller, Esquire Chapter 7 Bankruptcy Trustee 1719 North Front Street Harrisburg, PA 17102 Acting U.S. Trustee c/o Gregory R. Lyons, Esquire 228 Walnut Street P.O. Box 969 Harrisburg, PA 17108 3 ,. , '.} Robert E. Chernicoff, Esquire Cunningham and Chernicoff, PC 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Daniel Deckman Prudential Home Sales Service Group 3435 Market Street Camp Hill, PA 17011 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. BABST, CALLAND, CLEMENTS, ZOMNIR, PC By: ?- Eli eth A. Dupuis, E Wire Sworn to and subsc 'bed before me this day of 2008 Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jacquetyn R. Carpenter, Notary Public C04ege TWp.. Con" Cornty My Commission E)ires Jan. 23.2011 Member, Pennsylvanla Association of Notaries 4 rv rr" .13 t = c- d, C-n d .I, , PROPERTY DESCRIPTION ALL THAT CERTAIN tract of land situate in Middlesex Township, Cumberland County, Pennsylvania, being identified as Lot 8 as shown on a plan of lots; known as Ridge Estates, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Plan Book 91 on page 8, and being more fully described as follows, to wit: BEGINNING at a point in Ridge Drive (T-571), at a common corner of Lot #8 and Lot #9 of the Final Subdivision Plan for Ride Estates; thence through said Ridge Drive (T-571) and along said Lot #9, South 08 27; 59" East, a distance of 496.19 feet to a point at a common property corner of Lot #8, Lot #9 and lands now or late of George C. Wolfe, Jr.; thence along said lands now or late of George C. Wolfe, Jr., South 83 45' 17" West, a distance of 199.86 feet to a point in South Middlesex Road (T-590); thence through said South Middlesex Road (T-590), North 08 30' 00" West, a distance of 488.94 feet to an intersecting point in South Middlesex Road (T-590) and Ridge Drive (T-571); thence through said Ridge Drive, the following two (2) courses: (1) North 82 20' 44" East, a distance of 133.71 feet to a point; thence (2) North 80 19' 39" East, a distance of 66.32 feet to a point, at a common property corner of Lot #8 and Lot #9, said point being the point of BEGINNING. SAID LOT CONTAINING a gross area of 98,285.92 square feet or 2.2563 acres and net area of 76,230.25 square feet or 1.7500 acres to the Dedicated Right-of-Way Lines of South Middlesex Road (T-590) and Ridge Drive (T-571). ALSO BEING KNOWN and numbered as 2 Ridge Drive, Carlisle, Pennsylvania, and BEING KNOWN and identified by the Cumberland County Tax Assessment Office as May and Parcel Number 21-08-0573-031. BEING the same premises which became vested in FCM Builders, Inc. by deed of Land Market Incorporated dated June 7, 2006 and recorded in Cumberland County Record Book 275 at Page 3710. EXHIBIT a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) vs. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE NOTICE OF SHERIFF'S SALE OF REAL PROPERTY PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 3129 TO: FCM Builders, Inc. TAKE NOTICE: That the Sheriffs Sale of Real Property (real estate) will be held: DATE: TIME: LOCATION: Sheriffs Office Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 THE PROPERTY TO BE SOLD is delineated in detail in a legal description mainly consisting of a statement of the measured boundaries of the property, together with a brief mention of the buildings and any other major improvements erected on the land, as follows: ALL THAT CERTAIN tract of land situate in Middlesex Township, Cumberland County, Pennsylvania, being identified as Lot 8 as shown on a plan of lots; known as Ridge Estates, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Plan Book 91 on page 8, and being more fully described as follows, to wit: BEGINNING at a point in Ridge Drive (T-571), at a common corner of Lot #8 and Lot #9 of the Final Subdivision Plan for Ride Estates; thence through said Ridge Drive (T-571) and along said Lot #9, South 08 27; 59" East, a distance of 496.19 feet to a point at a common property corner of Lot #8, Lot #9 and lands now or late of George C. Wolfe, Jr.; thence along said lands now or late of George C. Wolfe, Jr., South 83 45' 17" West, a distance of 199.86 feet to a point in South Middlesex wr Road (T-590); thence through said South Middlesex Road (T-590), North 08 30' 00" West, a distance of 488.94 feet to an intersecting point in South Middlesex Road (T-590) and Ridge Drive (T-571); thence through said Ridge Drive, the following two (2) courses: (1) North 82 20' 44" East, a distance of 133.71 feet to a point; thence (2) North 80 19' 39" East, a distance of 66.32 feet to a point, at a common property corner of Lot #8 and Lot #9, said point being the point of BEGINNING. SAID LOT CONTAINING a gross area of 98,285.92 square feet or 2.2563 acres and net area of 76,230.25 square feet or 1.7500 acres to the Dedicated Right-of-Way Lines of South Middlesex Road (T-590) and Ridge Drive (T-571). ALSO BEING KNOWN and numbered as 2 Ridge Drive, Carlisle, Pennsylvania, and BEING KNOWN and identified by the Cumberland County Tax Assessment Office as May and Parcel Number 21-08-0573-031. BEING the same premises which became vested in FCM Builders, Inc. by deed of Land Market Incorporated dated June 7, 2006 and recorded in Cumberland County Record Book 275 at Page 3710. THE LOCATION of your property to be sold is: 2 Ridge Drive Carlisle, PA THE JUDGMENT under or pursuant to which your property is being sold is docketed in the within Commonwealth and County to: No. 2007-7357 THE NAMEOF THE OWNERS OR REPUTED OWNERS of this property are: FCM Builders, Inc. 13 Mt. Allen Drive Mechanicsburg, PA 17055 OR 1510 Thompson Lane Mechanicsburg, PA 17055 A SCHEDULE OF DISTRIBUTION, being a list of the persons, and/or governmental or corporate entities or agencies being entitled to receive part of the proceeds of the sale received and to be disbursed by the Sheriff (for example to banks that hold mortgages and municipalities that are owed taxes) will be filed by the Sheriff of this County thirty (30) days after the sale and distribution of the proceeds of sale in accordance with this scheduled will, in fact, be made unless someone objects by filing exceptions to it within ten (10) days of the date it is filed. Information about the Schedule of Distribution may be obtained from the Sheriff of the Court of Common Pleas of the within County at the Courthouse address specified herein. THIS PAPER IS A NOTICE OF THE TIME AND PLACE OF THE SALE OF YOUR PROPERTY. It has been issued because there is a judgment against you. It may cause your property to be held to be sold or taken to pay the judgment. You may have legal rights to prevent your property from being taken away. A lawyer can advise you more specifically of these rights. If you wish to exercise your rights you MUST ACT PROMPTLY. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET FREE LEGAL ADVICE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 TELEPHONE NO. 717-249-3166 or 800-990-9108 BABST CALLAND CLEMENTS ZOMNIR, PC By: liz th A. Du uis, s ire Attorney for Plaintiff 328 Innovation Blvd., Suite 200 State College, PA 16803 (814) 867-8055 Attorney I. D. No. 80149 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 07-7357 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due LEZZER CAPITAL RESOURCES, INC., Plaintiff (s) From FCM BUILDERS, INC. (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $455,257.76 L.L.$ 0.50 Interest from 11130/07 to date of Praceipe for Writ (9/18/08) at a rate of $91.12 per diem - $26,698.16 Atty's Comm % Atty Paid $168.70 Plaintiff Paid Date: 10/03/08 (Seal) REQUESTING PARTY: Due Prothy $2.00 Other Costs Prothono By: Deputy Name: ELIZABETH A. (BETSY) DUPUIS, ESQUIRE Address: BABST, CALLAND, CLEMENTS & ZOMNIR, PC 330 INNOVATION BOULEVARD, SUTIE 302 STATE COLLEGE, PA 16803 Attorney for: PLAINTIFF Telephone: 814-867-8055 Supreme Court ID No. 80149 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE PRAECIPE FOR ENTRY OF JUDGMENT TO THE PROTHONOTARY: Please enter judgment against FCM Builders, Inc. in accordance with the Order by Judge Kevin A. Hess dated September 11, 2008, in the amount of $455,257.76, including interest for each day beyond November 30, 2007, at a daily per diem rate of $91.12. BABST CALLAND CLEMENTS ZOMNIR, PC By: Ehzab A. Dupuis, Esquir Attorney for Plaintiff 328 Innovation Boulevard, Suite 200 State College, PA 16803 (814) 867-8055 Attorney I.D. No. 80149 Date: October 2, 2008 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Praecipe for Entry of Judgment was served on the following by depositing the same within the custody of the United States Postal Service, first-class mail, postage prepared, addressed to: Robert E. Chernicoff Cunningham and Chernicoff, PC 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 BABST, CALLAND, CLEMENTS & ZOMNIR, PC By: E izabeth . (Betsy) upuis, E uire Attorney for Plaintiff 330 Innovation Boulevard, Suite 302 State College, PA 16803 (814) 867-8055 Attorney I.D. No. 80149 Date: October 2, 2008 CD -? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., Plaintiff, VS. FCM BUILDERS, INC., Defendant. Case No. 2007-7357 MORTGAGE FORECLOSURE TO: FCM Builders, Inc. 13 Mt. Allen Drive Mechanicsburg, PA FCM Builders, Inc. 1510 Thompson Lane Mechanicsburg, PA 17055 NOTICE OF JUDGMENT Pursuant to Rule 236, please be advised that judgment has been entered against you in the above-captioned matter in the amount of $455,257.76, including interest for each day beyond November 30, 2007, at a daily per diem rate of $91.12. J 06W h Jgd Prot ary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) vs. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE AFFIDAVIT OF SERVICE I, Elizabeth A. Dupuis, Esquire, counsel for Plaintiff, hereby certify that service of Notice of Sheriffs Sale was made upon Defendant, FCM Builders, Inc., by United States mail, certified mail numbers 7007 3020 0003 1845 4172 and 7007 3020 0003 1845 4257, return receipt requested, as well as by first-class mail, postage prepaid, on January 16, 2009. Additionally, all parties identified in the Affidavit Pursuant to Rule 3129. 1, were served by depositing the same in the United States mail, postage prepaid on January 16, 2009. Copies of the certified mail receipts and United States Postal Service Form Mailing Book for Accountable Mail (PS Form 3877) to Defendant and all interested parties are attached hereto as Exhibit A. BABST, CALLAND, CLEMENTS & ZOMNIR, PC By: Elizabet A. (Betsy) Dupuis, E quire Attorney I.D. No. 80149 Attorney for Plaintiff 330 Innovation Boulevard, Suite 302 State College, PA 16803 (814) 867-8055 Dated: January 16, 2009 •. ru (Domestic Provided) r%. For delivery information visit our website at www.usps.com, s ep Postage $ r-4 Certified Fee M Postmark O Return Receipt Fee Here O (Endorsement Required) ,•° % C3 Restricted Delivery Fee O (Endorsement Required) O Total Postage & Fees m Sent To i S4ieet. Apt. No; O or PO Box No I r'j , ----------- --_s ) .....----- Crty. State, ZIP+4 + } (Domestic Only; No Insurance Coverage Provided) u7 ru . delivery information ? i.. '.,tea?'?-sNew,z CO Postage $ , j Certified Fee M I Postmark O Return Receipt Fee M/?ie C3 (Endorsement Required) O Restricted Delivery Fee } O (Endorsement Required) ru p Total Postage & Fees $ .- , z. cti { M Sent To ; - C"? t , $ .: 1 - 1..,. 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' m I Oho°2 D .rz L L L s (b? °ayx d (J (; C> (D '03 m a , m q q! 7-- IF ?2: V7 C')?, m m I d -m g °I o'. m -n C S T ? -n ?1 (IDD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) vs. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Affidavit of Service was hereby served by depositing the same within the custody of the United States Postal Service by first-class mail, postage prepaid, addressed as follow: FCM Builders, Inc. 1510 Thompson Lane Mechanicsburg, PA 17055 FCM Builders, Inc. 13 Mt. Allen Drive Mechanicsburg, PA 17055 BABST, CALLAND, CLEMENTS & ZOMNIR, PC By: Eliza eth (Betsy) Dupuis, Esq re Attorney for Plaintiff 330 Innovation Boulevard, Suite 302 State College, PA 16803 (814) 867-8055 Attorney I.D. No. 80149 Date: January 16, 2009 ? `?' iu7 t V i,. ?. n 4 - fV IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE AFFIDAVIT OF SERVICE I, Elizabeth A. Dupuis, Esquire, counsel for Plaintiff, hereby certify that service of Notice of Sheriffs Sale was made upon the Commonwealth of Pennsylvania, Department of Revenue, by depositing the same in the United States mail, postage prepaid on February 6, 2009, and upon C2 Construction, LLC by depositing the same in the United States mail, postage prepaid on February 9, 2009. Copies of the Certificates of Mailing are attached hereto as Exhibit "A." BABST, CALLAND, CLEMENTS & ZOMNIR, PC By:_ K%11?z Elizabet A. (Betsy) Dupuis, quire Attorney I.D. No. 80149 Attorney for Plaintiff 330 Innovation Boulevard, Suite 302 State College, PA 16803 (814) 867-8055 Dated: .2 1 q' 0 4 MAYBE USED FOR DOMESTIC AND INTER.1w,- r- r AILG NATIONAVMAItIn DOES NOT PROVIDE FOR INSURANCE-POSTMASTER Receive, Elizabeth A. Dupuis, Es Babst, Calland, Clements i 330 Innovation Blv r? r State College, P 1103 02 One piece of ordinary mail addressed to: ~P? v` rr 1 dl t t PS Form 3817, Mar. 1989 Ire in stamps Ostage and Inquire of for current 1 U.S. POSTAL SERVICE CERTIFICATE OF MAILING re in stamps MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT ostage and PROVIDE FOR INSURANCE-POSTMASTER Inquire of r for current Elizabeth A. Dupuis, Esquire BELL Babst, Calland, Clements, Zomnir, 330 Innovation Blvd., Suite 30 r. oar State College, PA 16803 C1 One piece of ordinary mail addressed to: tp ? %--III l ILA fit-3i - n. ' r-U Ayx ago1-4to ? t. PS Form 3817, Mar. 1999 4 17' 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Affidavit of Service was hereby served by depositing the same within the custody of the United States Postal Service by first-class mail, postage prepaid, addressed as follow: FCM Builders, Inc. 1510 Thompson Lane Mechanicsburg, PA 17055 BABST, CALLAND, CLEMENTS & ZOMNIR, PC By: S-e tdgg y) Dupuis, Esqui Elizabeth A. taintiff Attorney for 330 Innovation Boulevard, Suite 302 State College, PA 16803 (814) 867-8055 Attorney I.D. No. 80149 Date: aigl a9' ' ° C a ? ? ? ? -v ?.. ?? -?-r { ?'; - ..-- _? , "" ?5 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ISS: I, Robert P. Ziegler; Recorder of Deeds in and for said County and State do hereby certify that the Sheriffs Deed in which LEZZER CAPITAL RESOURCES INC is the grantee the same having been sold to said grantee on the 4TH day of MARCH A.D., 2009, under and by virtue, of a writ Execution issued on the 3RD day of OCT. A.D., 2008, out of the Court of Common Pleas of said County as of Civil Term, 2007 Number 7357, at the suit of LEZZER CAPITAL RESOURCE$ INC against FCM BUILDERS INC is duly recorded as Instrument Number 200910102. IN TESTIMONY WHEREOF, I halve hereunto set my hand and seal of said office this Q day of A.D. of Deeds 0--A& C C=V. CL*. AA ?M Cn E+iw #* FW Mw,*,W j. ** Lezzer Capital Resources, Inc. In The Court of Common Pleas of VS Cumberland County, Pennsylvania FCM Builders, Inc. Writ No. 2007-7357 Civil Term Kenneth E. Gossert, Deputy Sheriff, who being duly sworn according to law, states that on December 04, 2008 at 1710 hours, he served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendant, to wit: FCM Builders, Inc., by making known unto Fred Miller, adult in charge, at 1510 Thompson (Lane, Mechanicsburg, Cumberland County, Pennsylvania its contents and at the same time handing to him personally the said true and correct copy of the same. Valerie Weary, Deputy Sheriff, who being duly sworn according to l #w, states that on January 16, 2009 at 1315 hours, she posted a true copy of the within Real Estate Writ, Notice, Poster and Description, in the above entitled action, upon the property of FC Builders, Inc. located at 2 Ridge Drive, Carlisle, Cumberland County, Pennsylvania according to law. R. Thomas Kline, Sheriff, who being duly sworn according to law, states he served the above Real Estate Writ, Notice, Poster and Description in the following manner: The Sheriff mailed a notice of the pendency of the action to the within named defendant,; to wit: FCM Builders, Inc., by regular mail to their last known address of 1510 Thompson Lane, Mechanicsbur, PA 17055. This letter was mailed under the date of January 9, 2009 and never returned to the-Sheriff s Office. R. Thomas Kline, Sheriff, who being duly sworn according to law, ses that after due and legal notice had been given according to law, he exposed the within described premises at public venue or outcry at the Courthouse, Carlisle, Cumberland County, Pennsylvania on March 4, 2009 at 10:00 o'clock A.M. He sold the same for the sum of $1.00 to Attorney Elizabeth Dupuis, on behalf of Lezzer Capital Resources, Inc. It being the highest bid and best price received for the same, Lezzer Capital Resources, Inc., of, P.O. Box 118, Curwensville, PA 16833 being the buyer in this execution, paid to Sheriff R. Thomas Kline the sum of $1,102.31 Sheriffs Costs: Docketing $30.00 Poundage 21.61 Posting Bills 15.00 Advertising 15.00 Acknowledging Deed 48.00 Auctioneer 10.00 Law Library .50 Prothonotary 2.00 Mileage 17.10 Levy 15.00 Surcharge 20.00 Law Journal 407.00 Patriot News Share of Bills Distribution of Proceeds Sheriffs Deed 411.08 15.52 25.00 49.50 $1,102.31 So Answers: -0000"1 -1 'AOege lee dpww-- 44"&# R. Thomas Kline, heriff B Real Estate Coordinator ?r404 Sys ?12.3 tiE X41 'NARY QF ' 2009 APR -3 PM 3: 21 9?y VA?hA NTY T COPY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., ) Plaintiff, ) VS. ) FCM BUILDERS, INC., ) Defendant. ) Case No. 2007-7357 MORTGAGE FORECLOSURE AFFIDAVIT PURSUANT TO RULE 3129.1 I, Elizabeth A. Dupuis, attorney for Lezzer Capital Resources, Inc., Plaintiff in the above action, set forth as of the date of the Praecipe for Writ of Execution 2 Ridge Drive, Carlisle, Cumberland County, Pennsylvania. (Description of said real property is attached hereto as Exhibit "A" and made a part hereof.) 1. Name and last known address of reputed owner: FCM Builders, Inc. 13 Mt. Allen Drive Mechanicsburg, PA 17055 OR 1510 Thompson Lane Mechanicsburg, PA 17055 (Defendant will be served at both addresses) II. Name and last known address of Defendant: FCM Builders, Inc. 13 Mt. Allen Drive Mechanicsburg, PA 17055 III. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: 84 Lumber Company P.O. Box 365 Eighty Four, PA 15330 ???>>? Bernstein Law Firm Counsel to 84 Lumber Suite 2200, Gulf Tower Pittsburgh, PA 15219 Berkheimer Excavation 1120 Baish Road Mechanicsburg, PA 17055 Clyde W. Vedder, Esquire Counsel to Berkheimer Excavation Morris & Vedder P.O. Box 544 York, PA 17405 Lezzer Capital Resources, Inc. P.O. Box 217 Curwensville, PA 16833 M & J Explosives, Inc. Attn: Mike Oyler 670 Longs Gap Road P.O. Box 608 Carlisle, PA 17013 Lawrence G. Frank, Esquire Counsel to M&J Explosives 2023 North Second Street Harrisburg, PA 17102 Commonwealth of PA Department of Revenue Bankruptcy Division Dept. 280946 Harrisburg, PA 17128-0496 Commonwealth of PA Department of Revenue P.O. Box 12051 Philadelphia, PA 19105 Internal Revenue Service P.O. Box 21126 Philadelphia, PA 19114-0326 2 t Cumberland County Tax Claim Bureau One Courthouse Square Carlisle, PA 17013 IV. Name and address of the last recorded holder of every mortgage of record: Lezzer Capital Resources, Inc. P.O. Box 217 Curwensville, PA 16833 V. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: C2 Construction, LLC RR 4, Box 4130 Duncannon, PA 17020 Wilson Drywall 100 Mountain View Road Shermans Dale, PA 17090 Lower Allen Township 1993 Hummel Avenue Camp Hill, PA 17011 Integrity Bank 3314 Market Street Camp Hill, PA 17011 Clayton W. Davidson, Esquire Counsel for Integrity Bank 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Leon P. Haller, Esquire Chapter 7 Bankruptcy Trustee 1719 North Front Street Harrisburg, PA 17102 Acting U.S. Trustee c/o Gregory R. Lyons, Esquire 228 Walnut Street P.O. Box 969 Harrisburg, PA 17108 3 i Robert E. Chernicoff, Esquire Cunningham and Chemicoff, PC 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Daniel Deckman Prudential Home Sales Service Group 3435 Market Street Camp Hill, PA 17011 i I verify that the statements made in this affidavit are true and orrect to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. BABST, CALLAND, CLEMEI TS, ZOMNIR, PC By: L (? f Elizabeth A. Dupuis, Es uire Sworn to and subscribed before me this day of 2008 otary Public COMMONWEAL Tli OE F?ENNSYLVANIA Notarial Seal Jacquelyn R. Carpenter. Notary Public Coege Twp., Centre Cowity My r 5- jImi;?,;ion E)#res Jan. 23.2011 MembE,,Jre:u: ,: an : Assn^iation of Notaries 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW LEZZER CAPITAL RESOURCES, INC., Plaintiff, ) Case No. 2007-7357 j VS. ) MORTGAGE FORECLOSURE FCM BUILDERS, INC., ) Defendant. ) NOTICE OF SHERIFF'S SALE OF REAL PROPERTY PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 3129 TO: FCM Builders, Inc. TAKE NOTICE: That the Sheriff s Sale of Real Property (real estate) will be held: DATE: NA C% -r e V, 3 7,009 TIME: [0-cc) A m LOCATION: Sheriff s Office Cumberland County Courthouse '. One Courthouse Square Carlisle, PA 17013-3387 THE PROPERTY TO BE SOLD is delineated in detail in a legal description mainly consisting of a statement of the measured boundaries of the property, together with a brief mention of the buildings and any other major improvements erected on the land, as follows: ALL THAT CERTAIN tract of land situate in Middlesex Township, Cumberland County, Pennsylvania, being identified as Lot 8 as shown on a pan of lots; known as Ridge Estates, recorded in the Office of the Recorder of eeds in and for Cumberland County, Pennsylvania in Plan Book 91 on page , and being more fully described as follows, to wit: BEGINNING at a point in Ridge Drive (T-571), at a common col er of Lot #8 and Lot #9 of the Final Subdivision Plan for Ride Estates; thence t ough said Ridge Drive (T-571) and along said Lot #9, South 08 27; 59" East, a istance of 496.19 feet to a point at a common property corner of Lot #8, Lot #9 and lands now or late of George C. Wolfe, Jr.; thence along said lands now or late of eorge C. Wolfe, Jr., South 83 45' 17" West, a distance of 199.86 feet to a point in South Middlesex ill Road (T-590); thence through said South Middlesex Road (T-590), North 08 30' 00" West, a distance of 488.94 feet to an intersecting point in South Middlesex Road (T-590) and Ridge Drive (T-571); thence through said Ridge Drive, the following two (2) courses: (1) North 82 20' 44" East, a distance of 133.71 feet to a point; thence (2) North 80 19' 39" East, a distance of 66.32 feet to a point, at a common property corner of Lot #8 and Lot #9, said point, being the point of BEGINNING. SAID LOT CONTAINING a gross area of 98,285.92 square ?eet or 2.2563 acres and net area of 76,230.25 square feet or 1.7500 acres to the Dedicated Right-of-Way Lines of South Middlesex Road (T-590) and Ridge Drive (T-571). t ALSO BEING KNOWN and numbered as 2 Ridge Drive, Carlisle, Pennsylvania, and BEING KNOWN and identified by the Cumberland County Tax Assessment Office as May and Parcel Number 21-08-0573-031. BEING the same premises which became vested in FCM Builders, Inc. by deed of Land Market Incorporated dated June 7, 2006 and recorded in Cumberland County Record Book 275 at Page 3710. THE LOCATION of your property to be sold is: 2 Ridge Drive Carlisle, PA THE JUDGMENT under or pursuant to which your property is (being sold is docketed in the within Commonwealth and County to: No. 2007-7357 THE NAMEOF THE OWNERS OR REPUTED OWNERS of this property are: FCM Builders, Inc. 13 Mt. Allen Drive Mechanicsburg, PA 17055 OR 1510 Thompson Lane Mechanicsburg, PA 17055 A SCHEDULE OF DISTRIBUTION, being a list of the persons and/or governmental or corporate entities or agencies being entitled to receive part of the proceeds of the sale received and to be disbursed by the Sheriff (for example to banks that hold mortgages and municipalities that are owed taxes) will be filed by the Sheriff of this County thi y (30) days after the sale and distribution of the proceeds of sale in accordance with this scheduled will, in fact, be made unless someone objects by filing exceptions to it within ten (10) days of the date it is filed. Information about the Schedule of Distribution may be obtained from the Sheriff of the Court of Common Pleas of the within County at the Courthouse address specified herein. PROPERTY. F It has been issued because there is a judgment against you. It may cause your property to be held to be sold or taken to pa? the judgment. You may have legal rights to prevent your property from being taken away. A lawyer can advise you more specifically of these rights. If you wish to exercise your rights you MUST ACT PROMPTLY. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET FREE LEGAL ADVICE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 TELEPHONE NO. 717-249-3166 or 800-990-9108 BABST CALLAND CLEMENTS ZOMNIR, PC By: ' liz th A. Du s, s ire Attorney for Plain 'ff 328 Innovation Blvd., Suite 200 State College, PA 16803 (814)'867-8055 Attorney I. D. No. 180149 PROPERTY DESCRIPTION ALL THAT CERTAIN tract of land situate in Middlesex Township, Cumberland County, Pennsylvania, being identified as Lot 8 as shown on a plan of lots; knolvn as Ridge Estates, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Plan Book 91 on page 8, and being more fully described as follows, to wit: BEGINNING at a point in Ridge Drive (T-571), at a common corner of Lot #8 and Lot #9 of the Final Subdivision Plan for Ride Estates; thence through said Ridge Drive (' -571) and along said Lot #9, South 08 27; 59" East, a distance of 496.19 feet to a point at a common property corner of Lot #8, Lot #9 and lands now or late of George C. Wolfe, Jr.; thence along said lands now or late of George C. Wolfe, Jr., South 83 45' 17" West, a distance of 199.86 feet to a point in South Middlesex Road (T-590); thence through said South Middlesex Road (T-590), North 08 30' 00" West, a distance of 488.94 feet to an intersecting point in South Middles x Road (T-590) and Ridge Drive (T-571); thence through said Ridge Drive, the following two (2) courses: (1) North 82 20' 44" East, a distance of 133.71 feet to a point; thence (2) North 80 19' 39" East, a distance of 66.32 feet to a point, at a common property corner of Lot #8 and Lot #9, said point being the point of BEGINNING. SAID LOT CONTAINING a gross area of 98,285.92 square feet or 2.2563 acres and net area of 76,230.25 square feet or 1.7500 acres to the Dedicated Right-of-Way Lines of South Middlesex Road (T-590) and Ridge Drive (T-571). ALSO BEING KNOWN and numbered as 2 Ridge Drive, Carlisle, Penns lvania, and BEING KNOWN and identified by the Cumberland County Tax Assessment Offic as May and Parcel Number 21-08-0573-031. i BEING the same premises which became vested in FCM Builders, Inc. by eed of Land Market Incorporated dated June 7, 2006 and recorded in Cumberland County Reco d Book 275 at Page 3710. EXHIBIT WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 07-7357 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due LEZZER CAPITAL RESOURCES, Ir4C., Plaintiff (s) From FCM BUILDERS, INC. (1) You are directed to levy upon the property of the defendant (s)and to sell S) E LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee() is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $455,257.76 L.L.$ 0.50 1 Interest from 11/30/07 to date of Praceipe for Writ (9/18/08) at a rate of $91.12 per diem - $26,698.16 Atty's Comm % Due Prothy $2.00 Atty Paid $168.70 Other Costs Plaintiff Paid Date: 10/03/08 Prothonotary (Seal) By: Deputy REQUESTING PARTY: Name: ELIZABETH A. (BETSY) DUPUIS, ESQUIRE Address: BABST, CALLAND, CLEMENTS & ZOMNIR, PC 330 INNOVATION BOULEVARD, SUTIE 302 STATE COLLEGE, PA 16803 Attorney for: PLAINTIFF Telephone: 814-867-8055 Supreme Court ID No. 80149 Real Estate Sale #39 On November 14, 2008 the Sheriff levied upon the defendant's interest in the real property situated in Middlesex Township, Cumberland County, PA Known and numbered as 2 Ridge Drive, Carlisle more fully described on Exhibit "A" filed with this writ and by this reference W-V wv? 29 incorporated herein. (90 0 Date: November 14, 2008 By: Real Estat irgeant PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.17841 COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF CUMBERLAND Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that th Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the Count) and State aforesaid, was established January 2, 1952, and designated by the local courts as the o >cial legal periodical for the publication of all legal notices, and has, since January 2, 1 52, been regularly issued weekly in the said County, and that the printed notice or publication a ached hereto is exactly the same as was printed in the regular editions and issues of the said umberland Law Journal on the following dates, January 30, February 6, and February 13, 2009 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not inter sted in the subject matter of the aforesaid notice or advertisement, and that all allegations in th foregoing statements as to time, place and character of publication are true. C L Marie Coyto, Editor SWORN TO AND SUBSCRIBE before me this 13 day of February 13 009 Notary NOTARIAL S DEBORAH A CO INS Notary Public CARLISLE BORO, CUMBER D COUNTY My Commission Expires r 28, 2010 FA6L IMAM *AW 110. SO Writ No. 2007-7357 Civil Lezzer Capital Resources, Inc. VS. FCM Builders, Inc. Atty.: Elizabeth Dupuis EXHIBIT "A" PROPERTY DESCRIPTION ALL THAT CERTAIN tract of land situate in Middlesex Township, Cum- berland County, Pennsylvania, being identified as Lot 8 as shown on a plan of lots; known as Ridge Estates, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Plan Book 91 on page 8, and being more fully described as follows, to wit: BEGINNING at a point in Ridge Drive (T-571), at a common comer of Lot #8 and Lot #9 of the Final Subdi- vision Plan for Ride Estates; thence through said Ridge Drive (T-571) and along said Lot #9, South 08 27; 59" East, a distance of 496.19 feet to a point at a common property corner of Lot #8, Lot #9 and lands now or late of George C. Wolfe, Jr.; thence along said lands now or late of George C. Wolfe, Jr., South 83 45' 17" West, a distance of 199.86 feet to a point in South Middlesex Road (T-590); thence through said South Middle- sex Road (T-590), North 08 30'00" West., a distance of 488.94 feet to an print in Swth Middlesex R10d a send Drive (T-571); thanes through said Ridge Drive, the fogg"bW two (2) courses: (1) North ,32 2(y 44' East, a distance of 133.71 feet to a point; thence (2) North 80 19' 39" East, a distance of 66.32 feet to a point, at a common property corner of Lot #8 and Lot #9, said point being the point of BEGINNING. SAID LOT CONTAINING a gross area of 98,285.92 square feet or 2.2563 acres and net area of 76,230.25 square feet or 1.7500 acres to the Dedicated Right-of-Way Lines of South Middlesex Road (T- 590) and Ridge Drive (T-571). ALSO BEING KNOWN and num- bered as 2 Ridge Drive, Carlisle, Pennsylvania, and BEING KNOWN and identified by the Cumberland County Tax Assessment Office as May and Parcel Number 21-08- 0573-031. BEING the same premises which became vested in FCM Builders, Inc. by deed of Land Market incorporated dated June 7, 2006 and recorded in Cumberland County Record Book 275 at Page 3710. T'he Patriot-News Co. 812 Market St. Harrisburg, PA 17101 Inquiries - 717-255-8213 CUMBERLAND COUNTY SHERIFFS OF CUMBERLAND COUNTY COURT HOUSE CARLISLE PA 17013 Z4rPatriot News Now you know THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin) ss Joseph A. Dennison, being duly sworn according to law, deposes and says: That he is the Assistant Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the date(s) indicated below. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY REAL ESTATE SALE NO. 39 writ No. 2007-7357 Civil Term Lezzer Capital Resources, Inc. VS FCM Builders, Inc. Attorney Elizabeth Dupuis LEGAL DESCRIPTION PROPERTY DESCRIPTION ALL THAT CERTAIN tract of land situate in Middlesex Township, Cumberland County, Pennsylvania, being identified as Lot 8 as shown on a plan of lots; known as Ridge Estates, recorded in the Office of the Recorder of Deeds m and for Cumberland County, Pennsylvania in Plan Book 91 on page 8, and being more fully described as follows, to wit: BEGINNING at a point in Ridge Drive (T-571), at a common comer of Lot #8 and Lot #9 of the Final Subdivision Plan for Ride Estates; thence through said Ridge Drive (T-971) and along said Lot #9, South 08 27; 59" East, a distance of 4%.19 feet to a point at a common property coiner of Lot #8, Lot #9 and lands now or late of George C. Wolfe, Jr.; thence along said lands now or late of George C. Wolfe, Jr., South 83 45' 17" West, a distance of 199.86 feet to a point in South Middlesex Road (T-590); thence through said South Middlesex Road (T-590), North 08 30' W' West, a distance of 488.94 feet to an intersecting point in South. Middlesex Road (T-590) and Ridge Drive (T--571); thence through said Ridge Drive, the following two (2) courses: (1) North 82 20' 44" East, a distance of 133.71 feet to a point;,thence (2) North 80 19' 39" East, a distance of 66.32 feet to a point, at a common pgverty,cor4er of Lot 08 and Lot #9, said point being the point of BEGINNING. SAID LOT CONTAINING a gross area of 98,285.92 square fcet'or 2.2563 acres and net area of 76,230.25 square feet or 1.7500 acres to the Dedicated Rightof-Way Lines of South Middlesex Road (T-590) and Ridge Drive (T- 571). ALSO BEING KNOWN and numbered as 2 Ridge Drive, Carlisle, Pennsylvania, and BEING KNOWN and identified by the Cumberland County Tax Assessment Office as May and Parcel Number 21-08-0573-031. BEING the same premises which became vested in FCM Builders, Inc. by deed of Land Market Incorporated dated June 7, 2006 and recorded in Cumberland County Record Book 275 at Page 3710. This ad ran on the date(s) shown below: 01 /21 /09 01/28/09 02/04/09 Sworn to and ub bed before me this 25 Ciazy of"February, 2009 A.D. Notary Public ?XMIMONVVFA'_1"" OF- DENNSYLVANIA Rlnt?,?l ?Q?l i Sherrie L. Kisr`3? Notary Public City Of Harrisburg, Dauphin County My Commission Expires Nov. 28, 2011 Member, Pennsylvania : -iociatlon of Notaries