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HomeMy WebLinkAbout08-5416IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, V. CIVIL DIVISION r No. 05:- .5VII COMPLAINT IN MORTGAGE FORECLOSURE AH&T INVESTMENTS, LLC, Defendant. I hereby certify the address of Plaintiff is 200 West Second Street, Third Floor Legal Winston Salem, NC 27101 CERTIFICATE OF LOCATION I hereby certify that the location of the real estate affected by this lien is: Parcel C and Lot 6 containing 62.33313 acres, Shippensburg, PA 17257 Filed on behalf of Plaintiff, Branch Banking and Trust Company Counsel of Record for this Party: Robert A. Graci, Esq. Pa. I.D. #26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6000 (717) 237-6019 facsimile and Peter N. Pross, Esq. Pa. I.D. #36890 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street 44th Floor Pittsburgh, PA 15219 (412) 566-5934 (412) 566-6099 facsimile IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION Plaintiff, V. No. AH&T INVESTMENTS, LLC, Defendant. 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 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 Lawyer Referral (717) 249-3166 or (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION Plaintiff, No. o Y- 5g1G V. AH&T INVESTMENTS, LLC, Defendant. COMPLAINT IN MORTGAGE FORECLOSURE Plaintiff, Branch Banking and Trust Company, by its attorneys, Eckert Seamans Cherin & Mellott, LLC, files this Complaint in Mortgage Foreclosure, and avers as follows: 1. Plaintiff Branch Banking and Trust Company ("Plaintiff') is a North Carolina banking corporation and successor by merger to Branch Banking and Trust Company of Virginia. Plaintiff has its principal place of business at 200 West Second Street, Third Floor Legal, Winston, Salem, North Carolina 27101. 2. Defendant AH&T Investments, LLC ("Defendant") is a Virginia limited liability company with its registered office located at 126 E. King Street, Shippensburg, Pennsylvania 17257. 3. On May 5, 2005, Defendant executed and delivered to Plaintiff a Mortgage Note in the original principal amount of $2,792,530 (the "$2,792,530 Note") and a Mortgage Note in the original principal amount of $2,000,000 (the "$2,000,000 Note"). True and correct copies of the $2,792,530 Note and the $2,000,000 Note (collectively the "Notes") are attached as Exhibits "A" and "B," respectively. 4. The Notes are secured by, inter alia, a first lien position, purchase money mortgage dated'May 5, 2005 (the "First Mortgage") and by a second lien position, purchase money mortgage also dated May 5, 2005 (the "Second Mortgage"). True and correct copies of the First Mortgage and the Second Mortgage (collectively, the "Mortgages"), as recorded in the Recorder of Deeds Office of Cumberland County, Pennsylvania, are attached as Exhibits "C" and "D," respectively. 5. Additionally, Plaintiff has issued various letters of credit totalling approximately $1,100,000 in connection with Defendant's development and improvement of the Mortgaged Premises (the "Letters of Credit"). 6. On July 19, 2006, the $2,792,530 Note and the First Mortgage were modified pursuant to an Allonge and Modification Agreement made and executed by Defendant and delivered to Plaintiff (the "2006 Allonge"). A true and correct copy of the 2006 Allonge, as recorded in the Recorder of Deeds Office of Cumberland County, Pennsylvania, is attached as Exhibit "E." 7. On April 17, 2007, the Notes and the Mortgages were modified pursuant to two (2) Allonge and Modification Agreements made and executed by Defendant and delivered to Plaintiff (the "2007 Allonges") (hereafter the July 19, 2006 Allonge and the April 17, 2007 Allonges will be referred collectively as the "Allonges"). True and correct copies of the 2007 Allonges, as recorded in the Recorder of Deeds Office of Cumberland County, Pennsylvania, are attached as Exhibits "F" and "G," respectively. 2 8. The description of the land subject to the Mortgages and the Allonges (the "Mortgaged Premises") is attached hereto as Exhibit "H". 9. Defendant is the record and real owner of the Mortgaged Premises. 1`0. Defendant is in default under the terms of the Notes, the Mortgages and the Allonges due to Defendant's failure to pay the Notes in full upon their maturity on May 5, 2008. 11. On August 14, 2008, Plaintiff sent a demand letter to Defendant notifying it that it was in default and demanding payment in full. A true and correct copy of the August 14, 2008 demand letter sent to Defendant is attached as Exhibit "I". 12. Plaintiff was not required to send Defendant written notice pursuant to 35 P.S. § 1680.403C (Homeowners Emergency Mortgage Assistance Act of 1983 - Act 91 of 1983) because the Mortgaged Premises are not the principal residence of Defendant. Likewise, the Mortgaged Prerfiises are not a one or two family owner-occupied residence. 13. Notice of Intention to Foreclose Mortgage under Act 6 of 1974, 41 P.S. § 101, et seq., is not required because Defendant is not a "Residential mortgage debtor" and the Mortgage is not a "Residential mortgage" as defined in Act 6, 41 P.S. § 101. 14. As of the date of this Complaint, the amounts due and owing under the Notes, the Mortgages and the Allonges are as follows: $2,792,530 Note Principal Balance Unpaid Interest (as of 8/10/08) Current Late Charges SUBTOTAL $3,854,577.08 122,120.21 6,169.47 $3,982,866.76 3 $2,000,000 Note Principal Balance Unpaid Interest (as of 8/10/08) Current Late Charges $1,268,425.00 40,281.30 1,684.63 SUBTOTAL $1,310,390.93 GRAND TOTAL $5,293,257.69 15. Moreover, Plaintiff is entitled to additional interest on the $2,792,530 Note at the rate of $642.43 per day and additional interest on the $2,000,000 Note at the rate of $211.40 per day plus reasonable attorneys fees and a Trustee's commission of 5% of the gross proceeds of any foreclosure sale. 16. As of the date of this Complaint, the beneficiaries of the Letters of Credit have not "called" the Letters of Credit. In the event the foreclosure sale of the Mortgaged Premises occurs before the Letters of Credit are "called", Plaintiff will ask the court to permit the sale of the Mortgaged Premises subject to the advertised condition that any third party purchaser must replace the Letters of Credit. WHEREFORE, Plaintiff Branch Banking and Trust Company demands judgment in mortgage foreclosure for the amount of $5,293,257.69 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees, against Defendant AH&T Investments and for the foreclosure and "Sale of the Mortgaged Premises. [SIGNATURES CONTAINED ON NEXT PAGE] 4 Respectfully submitted, Robert A. Graci, q. Pa. I.D. #26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6000 (717) 237-6019 facsimile and Peter N. Pross, Esq. Pa. I.D. #36890 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44th Floor Pittsburgh, PA 15219 (412) 566-5934 (412) 566-6099 Facsimile Attorneys for Plaintiff, Branch Banking and Trust Dated: September /0, 2008 Company 5 f ? ij ?- EXHIBIT A MORTGAGE NOTE $2,792,530.00 M ay 3 , 2005 Virginia IN RETURN FOR A LOAN RECEIVED CONTEMPORANEOUSLY BY THE UNDERSIGNED (the "Loan") and for other good value received, the undersigned, (individually or collectively herein called "Maker") jointly and severally hereby promises to pay to the order of BRANCH BANKING AND TRUST COMPANY OF VIRGINIA, its successors and/or assigns (herein called "Lender") the principal sum of TWO MILLION SEVEN HUNDRED NINETY TWO THOUSAND FIVE HUNDRED THIRTY AND NO/100THS DOLLARS ($2,792,530.00), without offset, or so much thereof as may be advanced in accordance with that certain Acquisition, Development and Disbursement Loan Agreement, executed by Maker of even date herewith (the "Loan Agreement"), in immediate available funds in lawful money of the United States of America. The Maker shall pay this Mortgage Note ("Note"), at the Lender's office at 1308 Devil's Reach Road, Woodbridge, Virginia, or at such other address as Lender maydesignate from time-to-time, together with interest from the date of the Note on the principal advanced under the Loan ("Principal"), and on the terms, as hereinafter provided. Interest shall accrue on the Principal at a per annum rate equal to the Prime Rate, (as defined below) plus a gross margin of ONE PERCENT (1.00%) (collectively the "Interest Rate"), and monthly installments of interest shall commence and be immediately due and payable one month from the date of this Note and shall continue to be due and payable on the same dayofeach consecutive, successive month thereafter. Interest shall be paid out of a $360,000.00 interest reserve established from the Loan proceeds. The Prime Rate is the index herein and is established by Branch Banking and Trust Company of Virginia, or any successor financial institution as its base lending rate on commercial or corporate loans. In the event the index is not available, Lender may choose any comparable rate, or new rate, in Lenders sole discretion. The Interest Rate shall adjust from time-to-time and be deemed effective without notice to the Maker, the same day of any change to the Prime Rate if announced that day prior to 2:00 p.m. E.S.T., and deemed effective the next day after any change to the Prime Rate if announced that day after 2:00 p.m. E.S.T. If not sooner paid or demanded, the unpaid Principal of this Note, together with all accrued interest, costs and fees, if any, will become due and payable on May -F 2008. Interest shall be calculated on the basis of a three hundred sixty (360) day year regardless of the number ofdays in a year. The Maker shall have the right to pre-pay this Note, in whole or in part, without penalty, at any time during the term of this Note. The Lender may make any advancement of funds at any time, or from time-to-time, pursuant to the Loan Agreement, and any such advancement shall be deemed to be: (i) an obligation evidenced and memorialized by this Note, (ii) subject to the terms and limitations set forth in the Loan Agreement, and (iii) completely secured by the Mortgage executed by the Maker of even date herewith (the "Mortgage"). If at any time the Maker fails to make any scheduled payment within FIFTEEN (15) days after it is due, the Lender may charge a late fee of FIVE PERCENT (5.00%) of the amount of each such payment. In addition, if repayment of the Loan in full is not made immediately as of the date of maturity, whether by acceleration or otherwise, the Lender may charge a "default rate" of interest that is equal to FIVE PERCENT (5.00%) above the Interest Rate. The Maker agrees to pay all fees and other costs and expenses which the Lender may incur in connection with T 190- CDaV (,,V?1 the collection or enforcement of this Note or the preservation or disposition of any collateral securing the payment thereof, including, but not limited to, a reasonable attorney's fee. If the Lender: (i) incurs any cost, expense or fee in connection with the Loan; (ii) makes any advances under any other loan documents executed by the Maker, or (iii) disburses funds in connection with its rights to preserve and protect its collateral, then any.payments made to the Lender on this Note may be applied, at the sole option of the Lender, first to the payment of such other reasonable cost, expense, fee, advance or disbursement and all interest due thereon, and the balance, if any, of such payment thereafter applied to the payment of the amounts then due and payable under this Note, as follows: first, to any cost, expense or fees due the Lender hereunder, if any; then to pay late charges due hereunder, if any; then to accrued and unpaid interest due hereunder; and then to the unpaid principal balance of this Note. All payments shall be made by the Maker in lawful money of the United States which shall be legal tender for public and private debts at the time of payment. Any check given in payment of any amounts due hereunder will constitute payment only when collected. Each person liable on this Note in any capacity, whether as Maker, endorser, surety, guarantor, or otherwise (collectively, the "Obligor") waives the benefit of the homestead exemption and ofall other exemptions available to said person to the extent it may be lawfully waived. Each Obligor agrees that the Lender may on one or more occasions whether before or after maturity: (a) grant any extension, renewal or indulgence, (c) release or substitute any or all collateral, (d) discharge any Obligor, or (e) agree with the Maker to vary any terms or conditions, hereunder, and/or under any other loan documents, including the Loan commitment, the Loan Agreement, the Mortgage, or any, development loan agreement, unconditional guaranty agreement, Mortgage, assignment of interests, contracts, plans, and permits, or other document or instrument executed by the Maker in connection with the Loan (the Note and said documents are collectively referred to as the "Loan Documents"), without releasing or discharging Maker or any other Obligor from liability hereunder, whatsoever, and without notice to, or consent from, Maker or any Obligor. Any delay or failure by the Lender to act upon any right or remedy hereunder, or insist upon strict performance by the Maker of any terms or conditions hereunder, at any time or from time-to-time, shall not constitute a waiver of the right, remedy, terms or conditions hereunder, and Lender shall have the right to thereafter act or insist upon the strict terms hereof. In the event: (a) any monthly installment of interest or Principal is not paid within TEN (10) days of written notice from Lender, (b) any non-monetary performance under any of the other Loan Documents between the Lender and the Maker is not provided within TWENTY (20) days of written notice from Lender, (c) any Obligor becomes insolvent or makes an assignment for the benefit of creditors, (d) any Obligor files any petition or other pleading for relief under the Federal bankruptcy laws, or any state insolvency statute, (e) any petition or other pleading is filed against any Obligor for any relief under the Federal Bankruptcy Laws or state insolvency laws, and remains pending and undismissed for a period of thirty (30) days, (f) a receiver is appointed for, or a writ or order of attachment, levy or garnishment is issued against any Obligor or any collateral of the Lender, or (g) the Maker is in default under any of the other Loan Documents, then in any such event, the Maker shall be in default of this Note and the entire unpaid balance hereof, together with any interest, costs and fees, shall become immediately due and payable, in full at the option of the Lender, without further notice to the Maker. In the event any covenant, term or condition of this Note shall be held for any reason to be invalid, illegal or unenforceable in any respect, the invalidity, illegality or unenforceability of such covenant, term or condition shall not affect the validity, legality or enforceability of the remaining covenants, terms, and conditions hereof. The Maker and the Lender intend that the interest payable under this Note shall never exceed the maximum lawful rate of interest applicable to a note of this type. In the event the interest payable under this Note shall exceed such maximum lawful rate of interest, the rate of interest of the Note shall be reduced to such maximum lawful rate of interest and any other interest previously paid to the Lender in excess of the amount of interest payable under such maximum lawful rate of interest shall be deemed to have been prepayments of principal on this Note. Time is of the essence with regard to the payment of any amounts due hereunder and the performance of the covenants, terms, and conditions hereof. NOTE 2 The covenants, terms, and conditions of this Note shall be binding upon the heirs, personal representatives, successors, and assigns of each Obligor and shall inure to the benefit of the Lender, its successors, and assigns. In this Note, the term "person" means and includes natural person, corporations, partnerships, trusts, estates and all other legal entities. The singular gramrrrar includes the plural, and the masculine gender includes the feminine and neuter genders. The term "Lender" means and includes any holder of this Note. Notwithstanding any other provision contained herein, Maker's obligation hereunder shall be an independent undertaking to pay, and not merely an acknowledgment of an obligation. The Maker represents that this Loan is for commercial or investment purposes. This Note shall be construed in all respects and enforced according to the laws of the Commonwealth of Pennsylvania. EACH OF THE OBLIGORS HEREBY EXPRESSLY RELINQUISHES AND WAIVES EACH AND EVERY RIGHT, DEFENSE OR CLAIM THAT FOLLOWS: (a) ANY RIGHT TO REQUIRE LENDER TO FIRST ENFORCE ITS REMEDIES AGAINST THE MAKER; (b) ANY RIGHT TO REQUIRE LENDER TO FIRST PROCEED AGAINST OR EXHAUST ANY SECURITY HELD OR NOT HELD BY THE MAKER; (c) ANY AND ALL RIGHTS UNDER OR PURSUANT TO THE CODE OF PENNSYLVANIA AS AMENDED; (d) ANY DEFENSE ARISING BY REASON OF ANY DISABILITY, OR THE DISABILITY OF ANY OF THE OTHER OBLIGORS; (e) ALL RIGHTS OF SUBROGATION AS AMONG THE OBLIGORS, UNTIL ALL INDEBTEDNESS OF THE MAKER TO LENDER SHALL HAVE BEEN PAID IN FULL, EVEN THOUGH SUCH INDEBTEDNESS IS IN EXCESS OF ANY LIABILITY HEREUNDER; (f) ALL RIGHTS OF OR TO PRESENTMENTS, DEMANDS FOR PERFORMANCE, NOTICES OF NONPERFORMANCE, PROTESTS, NOTICES OF PROTEST, DEMANDS, NOTICES OF DEMANDS, NOTICES OF DISHONOR, NOTICES OF NON-PAYMENT AND OF THE EXISTENCE, CREATION, OR INCURRING OF NEW OR ADDITIONAL INDEBTEDNESS OF THE MAKER; (g) ALL RIGHTS TO REQUIRE WRITTEN ACCEPTANCE OF THIS NOTE; (h) ALL RIGHTS TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIMS OR COUNTERCLAIMS BROUGHT HEREUNDER; (i) THE RIGHT TO INTERPOSE ANY DEFENSE BASED UPON ANY CLAIM OF LACHES, INDULGENCES, DETERIORATION OF SECURITY, EXTENSION OF TIME OF PAYMENT, RENEWALS AND MODIFICATIONS; AND 0) THE RIGHT TO ASSERT THEREIN ANY SET-OFF IN FAVOR OF ANY OBLIGOR. EACH OF THE OBLIGORS REPRESENTS AND WARRANTS THAT LEGAL COUNSEL OF CHOICE HAS BEEN RETAINED TO REVIEW AND INTERPRET THIS NOTE AND ALL WAIVERS AND RELEASES CONTAINED HEREIN, SAID COUNSEL HAVING EXPLAINED AND ADVISED EACH OF THE OBLIGORS AS TO THE NOTE'S CONTENTS AND MEANING. MOREOVER, EACH OF THE OBLIGORS FURTHER REPRESENTS AND WARRANTS THAT EACH COMPLETELY UNDERSTANDS THIS NOTE HAVING SEEN AND READ ITS CONTENTS, AND IS EXECUTING THIS NOTE VOLUNTARILY AND WITH THE FREE CONSENT AND DESIRE OF EACH OBLIGOR FOR GOOD AND VALUABLE CONSIDERATION. MOREOVER, EACH OBLIGOR HAS REVIEWED AND APPROVED EACH OF THE ABOVE WAIVERS, AND HAS BEEN ADVISED BY COUNSEL OF THE CHOICES AVAILABLE TO EACH OBLIGOR AS TO THE MEANING AND EFFECT OF EACH OF THE RELEASES AND WAIVERS AND HAS FREELY AGREED TO EXECUTE THIS NOTE. This Note is secured by that certain Mortgage of even date herewith, encumbering certain real property located in Shippensburg Township and Southampton Township both in Cumberland County, Pennsylvania, which Mortgage is intended to be recorded among the proper land records where the said real property is located. The signature of a notary below is solely for the purpose of identifying this Note as the Mortgage Note described in the aforesaid Mortgage. NOTE WITNESS the following signatures(s) and seal(s): AH&T Investments, LLC, a Virginia limited liability company By: a' : Frank Tramer tie: Manager ABSOLUTE GUARANTEE The undersigned hereby acknowledge that they have read this Note and agree to jointly and severally, unconditionally and absolutely guarantee payment and performance of all of the terms and conditions hereof. Frank Tramer Donald H COMMONWEAL OF?VII,R?GIIN_IAA COUNTY OF °-' to-wit: For the purposes of identification only this is the Mortgage Note referred to in that certain Mortgage which is a Mortgage, dated of even date herewith, executed by the Maker and mortgaging real property located in Cumberland County, Pennsylvania: My commission expires: ?/,3 / I0 F- NOTE 4 NOTARY PUBLIC COMMONWEALTV OF VIRGINIA COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this _t? day of May, 2005, by Frank Trainer as Manager of AH&T Investments, LLC, a Virginia limited liability company NOTA LIC My commission expires: 431'0 COMMONWEALTH 031 VIRGINIA COUNTY OF to-wit: The foregoing instrument was acknowledged before me this 5-K- day of May, 2005, by Frank Tramer, Guarantor(s). NOTAR IC My commission expires: S?'?31 05 COMMONWEAL VF VIRGINIA COUNTY OF / to-wit: The foregoing instrument was acknowledged before Guarantor(s). My commission expires: 8/' 4711,01y me this day of May, 2005, by Spencer Ault, NOTARY PUBLIC COMMONWEALTH O VIRGINIA COUNTY OF 1kt^ , to-wit: The foregoing instrument was acknowledged before me this day of May, 2005, by Donald Harding, Guarantor(s). NOTARY PUBL C My commission expires: $ ?j ((Q S NOTE Exti-,bJ B EXHIBIT B MORTGAGE NOTE $2,000,000.00 Z May , 2005 Virginia IN RETURN FOR A LOAN RECEIVED CONTEMPORANEOUSLY BY THE UNDERSIGNED (the "Loan") and for other good value received, the undersigned, (individually or collectively herein called "Maker") jointly and severally hereby promises to pay to the order of BRANCH BANKING AND TRUST COMPANY OF VIRGINIA, its successors and/or assigns (herein called "Lender") the principal sum of TWO MILLION AND NO/100THS DOLLARS ($2,000,000.00), without offset, or so much thereof as may be advanced in accordance with that certain Disbursement and Construction Loan Agreement, executed by Maker of even date herewith (the "Loan Agreement"), in immediate available funds in lawful money of the United States of America. The Maker shall pay this Mortgage Note ("Note"), at the Lender's office at 1308 Devil's Reach Road, Woodbridge, Virginia, or at such other address as Lender may designate from time-to-time, together with interest from the date of the Note on the principal advanced under the Loan ("Principal'), and on the terms, as hereinafter provided. Interest shall accrue on the Principal at a per annum rate equal to the Prime Rate, (as defined below) plus a gross margin of ONE PERCENT (1.00%) (collectively the "Interest Rate"), and monthly installments of interest shall commence and be immediately due and payable thirty (30) days from the date of this Note, and shall continue to be due and payable on the same day of each consecutive, successive month thereafter. The Prime Rate is the index herein and is established by Branch Banking and Taut Company of Virginia, or any successor financial institution as its base lending rate on commercial or corporate loans. In the event the index is not available, Lender may choose any comparable rate, or new rate, in Lenders sole discretion. The Interest Rate shall adjust from time-to-time and be deemed effective without notice to the Maker, the same day of any change to the Prime Rate if announced that day prior to 2:00 p.m. E.S.T., and deemed effective the next day after any change to the Prime Rate if announced that day after 2:00 p.m. E.S.T. If not sooner paid or demanded, the unpaid Principal of this Note, together with all accrued interest, costs and fees, if any, will become due and payable on May _?_, 2007. Interest shall be calculated on the basis of a three hundred sixty (360) day year regardless of the number of days in a year. The Maker shall have the right to pre-pay this Note, in whole or in part, without penalty, at any time during the term of this Note. The Lender may make any advancement of funds and/or any re-advancements or re-disbursements of funds at any time, or from time-to-time, pursuant to the Loan Agreement, and any such advancement, re-advancement or re- disbursement shall be deemed to be: (i) an obligation evidenced and memorialized by this Note, (ii) subject to the terms and limitations set forth in the Loan Agreement, and (iii) completely secured by the Mortgageexecuted by the Maker of even date herewith (the "Mortgage"). If at any time the Maker fails to make any scheduled payment within FIFTEEN (15) days after it is due, the Lender may charge a late fee of FIVE PERCENT (5.00%) of the amount of each such payment. In addition, if repayment of the Loan in full is not made immediately as of the date of maturity, whether by acceleration or otherwise, the Lender may charge a "default rate" of interest that is equal to FIVE PERCENT (5.00%) above the Interest Rate. The Maker agrees to pay all fees and other costs and expenses which the Lender may incur in connection with the collection or enforcement of this Note or the preservation or disposition of any collateral securing the payment T thereof, including, but not limited to, a reasonable attorney's fee If the Lender: (i) incurs any cost, expense or fee in connection with the Loan; (ii) makes any advances under any other loan documents executed by the Maker, or (iii) disburses funds in connection with its rights to preserve and protect its collateral, then any payments made to the Lender on this Note maybe applied, at the sole option of the Lender, first to the payment of such other reasonable cost, expense, fee, advance or disbursement and all interest due thereon, and the balance, if any, of such payment thereafter applied to the payment of the amounts then due and payable under this Note, as follows: first, to any cost, expense or fees due the Lender hereunder, if any; then to pay late charges due hereunder, if any; then to accrued and unpaid interest due hereunder; and then to the unpaid principal balance of this Note. All payments shall be made by the Maker in lawful money of the United States which shall be legal tender for public and private debts at the time of payment. Any check given in payment of any amounts due hereunder will constitute payment only when collected. Each person liable on this Note in any capacity, whether as Maker, endorser, surety, guarantor, or otherwise (collectively, the "Obligor") waives the benefit of the homestead exemption and of all other exemptions available to said person to the extent it may be lawfully waived. Each Obligor agrees that the Lender may on one or more occasions whether before or after maturity: (a) grant any extension, renewal or indulgence, (c) release or substitute any or all collateral, (d) discharge any Obligor, or (e) agree with the Maker to vary any terms or conditions, hereunder, and/or under any other loan documents, including the Loan commitment, the Loan Agreement, the Mortgage, or any, development loan agreement, unconditional guaranty agreement, Mortgage, security agreement, assignment of leases, rents, and profits, assignment of interests, contracts, plans, and permits, or other document or instrument executed by the Maker in connection with the Loan (the Note and said documents are collectively referred to as the "Loan Documents"), without releasing or discharging Maker or any other Obligor from liability hereunder, whatsoever, and without notice to, or consent from, Maker or any Obligor. Any delay or failure by the Lender to act upon any right or remedy hereunder, or insist upon strict performance by the Maker of any terms or conditions hereunder, at any time or from time-to-time, shall not constitute a waiver of the right, remedy, terns or conditions hereunder, and Lender shall have the right to thereafter act or insist upon the strict terms hereof. In the event: (a) any monthly installment of interest or Principal is not paid within TEN (10) days of written notice from Lender, (b) any non-monetary performance under any of the other Loan Documents between the Lender and the Maker is not provided within TWENTY (20) days of written notice from Lender, (c) any Obligor becomes insolvent or makes an assignment for the benefit of creditors, (d) any Obligor files any petition or other pleading for relief under the Federal bankruptcy laws, or any state insolvency statute, (e) any petition or other pleading is filed against any Obligor for any relief under the Federal Bankruptcy Laws or state insolvency laws, and remains pending and undismissed for a period of thirty (30) days, (f) a receiver is appointed for, or a writ or order of attachment, levy or garnishment is issued against any Obligor or any collateral of the Lender, or (g) the Maker is in default under any of the other Loan Documents, then in any such event, the Maker shall be in default of this Note and the entire unpaid balance hereof, together with any interest, costs and fees, shall become immediately due and payable, in full at the option of the Lender, without further notice to the Maker. In the event any covenant, term or condition of this Note shall be held for any reason to be invalid, illegal or unenforceable in any respect, the invalidity, illegality or unenforceability of such covenant, term or condition shall not affect the validity, legality or enforceability of the remaining covenants, terms, and conditions hereof. The Maker and the Lender intend that the interest payable under this Note shall never exceed the maximum lawful rate of interest applicable to a note of this type. In the event the interest payable under this Note shall exceed such maximum lawful rate of interest, the rate of interest of the Note shall be reduced to such maximum lawful rate of interest and any other interest previously paid to the Lender in excess of the amount of interest payable under such maximum lawful rate of interest shall be deemed to have been prepayments of principal on this Note. Time is of the essence with regard to the payment of any amounts due hereunder and the performance of the covenants, temis, and conditions hereof. NOTE The covenants, terms, and conditions of this Note shall be binding upon the heirs, personal representatives, successors, and assigns of each Obligor and shall inure to the benefit of the Lender, its successors, and assigns. In this Note, the term "person" means and includes natural person, corporations, partnerships, trusts, estates and all other legal entities. The singular grammar includes the plural, and the masculine gender includes the feminine and neuter genders. The term "Lender" means and includes any holder of this Note. Notwithstanding any other provision contained herein, Maker's obligation hereunder shall be an independent undertaking to pay, and not merely an acknowledgment of an obligation. The Maker represents that this Loan is for commercial or investment purposes. This Note shall be construed in all respects and enforced according to the laws of the Commonwealth of Pennsylvania. EACH OF THE OBLIGORS HEREBY EXPRESSLY RELINQUISHES AND WAIVES EACH AND EVERY RIGHT, DEFENSE OR CLAIM THAT FOLLOWS: (a) ANY RIGHT TO REQUIRE LENDER TO FIRST ENFORCE ITS REMEDIES AGAINST THE MAKER; (b) ANY RIGHT TO REQUIRE LENDER TO FIRST PROCEED AGAINST OR EXHAUST ANY SECURITY HELD OR NOT HELD BY THE MAKER; (c) ANY AND ALL RIGHTS UNDER OR PURSUANT TO THE CODE OF PENNSYLVANIA AS AMENDED; (d) ANY DEFENSE ARISING BY REASON OF ANY DISABILITY, OR THE DISABILITY OF ANY OF THE OTHER OBLIGORS; (e) ALL RIGHTS OF SUBROGATION AS AMONG THE OBLIGORS, UNTIL ALL INDEBTEDNESS OF THE MAKER TO LENDER SHALL HAVE BEEN PAID IN FULL, EVEN THOUGH SUCH INDEBTEDNESS IS IN EXCESS OF ANY LIABILITY HEREUNDER; (f) ALL RIGHTS OF OR TO PRESENTMENTS, DEMANDS FOR PERFORMANCE, NOTICES OF NONPERFORMANCE, PROTESTS, NOTICES OF PROTEST, DEMANDS, NOTICES OF DEMANDS, NOTICES OF DISHONOR, NOTICES OF NON-PAYMENT AND OF THE EXISTENCE, CREATION, OR INCURRING OF NEW OR ADDITIONAL INDEBTEDNESS OF THE MAKER; (g) ALL RIGHTS TO REQUIRE WRITTEN ACCEPTANCE OF THIS NOTE; (h) ALL RIGHTS TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIMS OR COUNTERCLAIMS BROUGHT HEREUNDER; (i) THE RIGHT TO INTERPOSE ANY DEFENSE BASED UPON ANY CLAIM OF LACHES, INDULGENCES, DETERIORATION OF SECURITY, EXTENSION OF TIME OF PAYMENT, RENEWALS AND MODIFICATIONS; AND 0) THE RIGHT TO ASSERT THEREIN ANY SET-OFF IN FAVOR OF ANY OBLIGOR. EACH OF THE OBLIGORS REPRESENTS AND WARRANTS THAT LEGAL COUNSEL OF CHOICE HAS BEEN RETAINED TO REVIEW AND INTERPRET THIS NOTE AND ALL WAIVERS AND RELEASES CONTAINED HEREIN, SAID COUNSEL HAVING EXPLAINED AND ADVISED EACH OF THE OBLIGORS AS TO THE NOTE'S CONTENTS AND MEANING. MOREOVER, EACH OF THE OBLIGORS FURTHER REPRESENTS AND WARRANTS THAT EACH COMPLETELY UNDERSTANDS THIS NOTE HAVING SEEN AND READ ITS CONTENTS, AND IS EXECUTING THIS NOTE VOLUNTARILY AND WITH THE FREE CONSENT AND DESIRE OF EACH OBLIGOR FOR GOOD AND VALUABLE CONSIDERATION. MOREOVER, EACH OBLIGOR HAS REVIEWED AND APPROVED EACH OF THE ABOVE WAIVERS, AND HAS BEEN ADVISED BY COUNSEL OF THE CHOICES AVAILABLE TO EACH OBLIGOR AS TO THE MEANING AND EFFECT OF EACH OF THE RELEASES AND WAIVERS AND HAS FREELY AGREED TO EXECUTE THIS NOTE. This Note is secured by that certain Mortgage of even date herewith encumbering certain real property located in Shippensburg Township and Southampton Township both in Cumberland County, Pennsylvania, which Mortgage is intended to be recorded among the proper land records where the said real property is located. The signature of a notary below is solely for the purpose of identifying this Note as the Mortgage Note described in the aforesaid Mortgage. WITNESS the following signatures(s) and seal(s): AH&T Investments, LLC, a Virginia limited NOTE ABSOLUTE GUARANTEE The undersigned hereby acknowledge that they have read this Note and agree to jointly and severally, unconditionally and absolutely guarantee payment and performance of all of the teens and conditions hereof. GU COMMONWEALTI? ?F VII GINIA COUNTY OF (?"Sk-r ' , to-wit: For the purposes of identification only this is the Mortgage Note referred to in that certain Mortgage which is a Mortgage, dated of even date herewith, executed by the Maker and conveying real property located in Cumberland County, Pennsylvania, to the Mortgagee identified therein: My commission expires: 913116X I&I, ?'V'7 NOT Y PUBLIC COMMONWEAL' F RGINIA COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this _ day of May, 2005, by Frank Tramer as NOTE liability company Manager of AH&T Investments, LLC, a Virginia limited liability comp y. NOTARY UBLIC My commission expires: Y19 t I Og COMMONWEA OF VIRGINIA COUNTY OF (&U n , to-wit: The foregoing instrument was acknowledged before Guarantor(s). My commission expires: el-3 ( 1 a COMMONWEALT OF VIRGINIA COUNTY OF _(? , to-wit: The foregoing instrument was acknowledged before Guarantor(s). My commission expires:/3l ?O me this 611day of May, 2005, by Frank Tramer, NOTA PUBLIC me this day of May, 2005, by Spencer Ault, 4" "! " - ?_&_ J, NOTA UBLIC COMMONWEALT VIRGINIA COUNTY OF AWAI-il- to-wit: I* i ne foregoing instrument was acknowledged before me this day f May, 2005, by Donald Harding, Guarantor(s). NOTARY PUBLIC My commission expires: v-_; I la NOTE lf? ?,, i", d EXHIBIT C 09/07/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 02/26 (firr MORTGAGE P5 AAL? Z? . AXIMUM AGGRT:GATE AMOUNT OF PRINCi1PAL TO BI SECURED AT ANY OI?E F WS THE , BE $2,792,530.08. NAME AND ADDRESS OP NOT'EROLDER FOR NOTICES BRANCH BANKING AND TRUST and CURRAN & WHrrITNGTON, P.C. 1305 Devil's Reach Road Attorneys at Law Suite 200 9214 Center Street, Third Floor Woodbridge, Virginia 22192 Manassas, Virginia 20110 Attu; Brian. J. Gormley Attnt Joseph F. Curran TMr, MORTGAGE ("Mortgage") is made this _j_ day, of M%y, 2*5, by AR&T Investments, LLC, a Virginia Ilmlted liability company, who is the mortgagor herein having an address of 15051 Taylors Mill Place, Tdaymsrket, Virginia 20169 (hereinafter individually or collectively referred to as the "Mortgagor") and BRANCH BANKING AND TRUST COMPANY OF VIRGINIA, organized and existing wilder the laws of the United States of AmcriM its suocessors and/or assigns, and having an address of 1303 Devil's Reach Road, Woodbridge, Virginia 22192 (lroreinaPoe referred to as the "Mortgagee'). WITNESSETH: That in consideration of the prenvses hereof and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Mortgagor does hereby grant, bargain, sell, convey, assign and transfer with Cxenesal Warranty and English Covenants of Title unto Mortgagee, the real property described in Exbibit A, attached hereto and expressly made a part hereof (the "Real Property"); TOGETHER WTCH ALL OF THE FOLLOWING GOODS OR COLLATERAL WIRCH ARE AFFLCED OR TO BECOME AFFIXED TO THE REAL PROPER'T'Y: All machinery, apparatus, equipmenrt, appliances, fittings, including without limitation all engines, furnaces, boilers, stokers, pumps, heaters, water heaters, incinerators, heat pumps, fans, heating systems, air conditioning systems, ventilation systcur, power equ*r&nt, laundry equipment, all buried ranks, above ground tanks, water tanks, pools, dynamos, motors, condui% generators, switchboards, phone systems, including support relay, imagery, computers and electrical apparatus and equipment, all storage cubicles, billboards, lighting futtures, li& switches, incinerating and plumbing apparatus and equiptem all compressors and exhaust fans, all elevators and escalators, all venetian blinds, shades, awnings, blinds, draperies and drapery/curtain rods, all fire prevention and fire extinguishing apparatus and equipment, all plumbing fixtures, all vacuum cleaners and systems, all floor maintenance apparatus and equipment, all carpeting, carpet padding, rugs, linolcuur and other floor coverin& an ref[igerating and cooling apparatus and cquomcnt, all sales, cabinets, lockers and shelving, all screens4 and screen doors, all doors, all refrigerators, ranges, ovens, microwave ovens, garbage disposals, dishwashers, trash compactors, washing machines, clothes drycrs, and other appliances, all electric signs, mirrors, all call systems, burglar alarms and security systems, and all keys, codes and access cards used in connection with any ofthe above, wherein all interests in said goods shall be deemed to be purchase money security interests, and all of said goods listed herein are hereby understood and agreed to be deemed fixtures or deemed to become fixtures and forming a part of the Real Property to the extentpmmitted by law (collectively, the "Fixtures"); TOGETHER WITH all foundations, structures, buildings and improvements, including glass, materials, trees, shrubs, plants, minerals, timber, wood or dirt now located on, or hereafter placed on, in, under, or above the Real Property (the "Improvements"); 'T'OGETHER WITH all personal property, inventory and equipment, including but not limited to furniture, fum3shings, lamps, desks, chairs, typewriters, computers, computer disks, printers, key boards, goods, supplies, books, charts, paper, copiers, fax macbines, tclepbones, stored building materials, tools, floor maintenance apparatus and equipment, lobby and public space f u-niabiangs, bulbs, ornaments, pictures, art work, paintings, decorations, and sigaage TW&T %t9aGK3G26 CUMBERLAND COUNTY 1AV4 200516224 - Page I of TI 09/97/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 03/26 of any type (collectively the "Personalty" ), now located on, or hereafter placed on, in, under, or above the Real Property or acquired with loan proceeds secured by this Trust; TOGETHER WTIH all building plans, renderings, drawings, architectural plans, site plans, subdivision plans, engineering plans, engineering plats, interior plans, configurations, surveys, survey letters and certificates, building permits, electrical permits, heating and air conditioning permits, health permits, environmental pcnnits, government approval letters, variance letters, zoning letters, zoning approvals, zoning resolutions, water approvals, top-in approvals, sewer approvals, letters of credit, performance bonds, security bonds, development bonds, county atui/or city required security bonds, set-aside letters or loners of credit, and all application fees, filing fees, plan fees, permit tees, deposits, cash and credit posted in connection with any of the above, and any and all other papers, drawings, government communications, permits, approvals, proffers and security posted in correction with the development of the Real Property (the "Plans and Approvals'l; TOGETHER WITH all easements, rights of way, privileges, rights, tenements, hereditaments, appurtenances and all other estate, right, title and interest of the Mortgagor, now owned or hereafter acquired and appertaining, belonging, or relating to all of any portion of the Real Property (the "Rights"); TOGETHER WITH all right, title and interest of Mortgagor, now owned or hereafter acquired, in and to any land lying in any public and private streets and roads adjoining the Real Property and in and to any sidewalks, alleys, or strips of land adjacent to or used in connection with, the Real Property (the "Roadways"); TOGETHER WITH all leasehold estate, right, title and interest of the Mortgagor, now owned m hereafter acquired, in and to all leases or subleases of all or any portion of the Real Property (the "Leasehold"); TOGETHER VVn R all rents, issues, profits, royalties, income and other money or benefits now or hereafter derived from the Real Property (the "Rents"); and TOGETHER WMi allthe estate, right, title and interest ofthe Mortgagor, now owned or I=caftcr acquhed, in or with respect to all payments, condemnation awards, insurance proceeds, and other sums of money and proceeds ineludimg interest thereon which shall be due the Mortgagor as a result of any casualty affecting all or acyportion of the Real property, any coladetmtation or other exercise of the right of erninent dovoin affecting all or any portion of the Real Property hereby conveyed, any alteration of the grade of any public street aff=ting an or any portion of the Real Property, or any other injury to or diminution in value of all of any portion of the Real property (the "Proceeds"); WHEREIN all of the Real Property, the Fixtures, the lnoprovements, the Personalty, the Plans and Approvals, the Rights, the Roadways, the Leasehold, the Rents and the Proceeds am bereaftcr collectively referred to in this Mortgage as the "Property", and are hereby; CONVEYED IN TRUST for the benefit of the Mortgagee, its successors and assigns, and to secure the Mortgagee in connection with all of the following: (A) The repayment in full of that certain loan in the face amount of TWO MILLION SEVEN BUNDRED NLY TY TWO THOUSAND FIVE HUNDRED TSIRTY AND NO/100THS DOLLARS ($2,792,530.00), (the "Loan"); (B) That certain Mortgage Note in the face amount of the Loan, of even date herewith, evidencing the Loan and executed by Mortgagor and guaranteed by Frank framer, Spencer Aria, And Donald Harding (individually or collectively referred to as the "Guarantors") for the benefit of Mortgagee, together with any and all amendments, modifications, accords, allonges, substitutions, bifurcations, consolidations or restructurings thereto (collectively referred to hereafter as the "Note"); (C) The repayment of all indebtedness, and all performance, promises and covenants set forth in the Note and in this Mortgage; TRUST BK 1906PG3627 nn-MMAMA o,,A•e, MA CUMBERLAND COUNTY InsL# 200516224 • Page 2 of 1f . 09/07/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 04/26 (D) The repayment of any and all sums of money that the Mortgagee may now or hereafter advance, loan, readvance, fund or disburse to or for the benefit of dot Property or Mortgagor, regardless ofwbether any such advance, loan, readvance, funding or disbursement shall be: (i) pursuant to the provisions of the Note, or this Mortgage, or otherwise, (ii) evidenced by any document or agreement, (iii) matured or unmatur4 or (iv) by mistake or otherwise, together with interest thereon at the interest rate set forth in the Note; (E) The payment or repaymem of all costs, expenses, cltargrs, conmrissions of trustees, interest, premiums, attorneys fees, and other commissions, fees, charges end obligations direct or iadircM absolute or contingent, now or hereafter dur (i) pursuant to any ofthe loan documents exeeut+edbyMortgagorin favor ofMortgagee ineludingbut not limited to the Note, this Mortgage, the Commitment Letter dated April 5, 2005, from the Mortgagee and executed by the Mortgagor, and army and all amendments thereto (the "Comrnitrnent I.ettee), the Hazardous Waate Indemnity Agreement in favor of Mortgagee (the "Indemnity Agmczned }, the Unconditional Guaranty Agreement ofeven date herewith (the "Unconditional Guaranty") executed by the Gttaz=tors, and each and every one of such other agreetneents and loan documents executed by Mortgagor and/or Guarantors: (as the case may be) in connection with the Loan, and arty and all amendments or modificatiorts thereto, (collectively hereafter referred to as the "Loan Documents"); and (ii) pursuant to applicable law, statute or rules of equity; (F) All renewals, curtailments, and extensions of the Note (and this Mortgage), as well as any note and Mortgage given in replacement of the Note and Mortgage (unlimited renewals, eartailments, extensions and replaoetneats being expressly permitted in the sole and absolute discretion of the Mortgagee); (G) The repayment of all funds disbursed by Mortgagee in connection with the Loan to any other party whatsoever, for the direct or indirect benefit of Mortgagor; (H) All ailonges, bifurcations, amendments, modifications, replacements, supplements or substitutions to the Notc; and (I) The disbursement of funds by Mortgagee in accordance with any of the Loan Documents, deemed necessary or desirable by Mortgagee to: (i) preserve and protect the Property, (ii) complete development of the Real Property, and (iii) compel the Mortgagor to act in accordance with its obligations folder any of the Loan Documents. ALL MATTERS SET FORTH IN PARAGRAPHS (A) THROUGH (1) ABOVE ARE HEREBY SECURED BY THIS MORTGAGE. ALL AMOUNTS OUTSTANDING IN CONNECTION WITH THE LOAN, TOGETM WITH INTEREST THEREON, AS WELL AS THOSE MA'T'TERS AND ITEMS PROVIDED 13Y THE CODE OF PENNSYLVANIA, AS AMENDED, SHALL CONTINUE TO HAVE PRIORITY UNTIL PAID OR. CURTAILED. THE MATURITY DA'T'E UNDER THIS MORTGAGE IS MAY E-, 2008. The Mortgagor flt iher covenants and agrees as follows: t. The Mortgagor will pay or cause to be paid, when due and payable, all principal, interest, late charges, expenses, and other awounts due the Mortgagee and the Trustee under the Loan, the Note and this Mortgage. 2. The Mortgagor will pay, when due and payable,, all real estate taxes, assessments, general and special taxes, land use taxes and deferred taxes (collectively the "Taxes") in connection with the property. At the request of Mortgagee at any time, or from titne-to-time, Mortgagor agrees to escrow with the Mortgagee an amount equal to two months of the annual amount of the Taxes coming due, plus an additional fifteen (15) percent more of the taxes and subsequently escrow with the Mortgagee one-twelfth (1/12) of the annual amount of the taxes coming due, each successive month thereafter. All amounts deposited in to escrow shall bear no interest and may be eonnningled with other funds held by the Mortgagee. All escrows held by the Mortgagee may, at Mortgagee's sole option, be applied to the payment of any TRUST SK 1 906PG3628. ----e .f. A .- .1 A CUMBERLAND COVE Inst.# 200516774 - Page 3 of V 09/x7/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 05/26 fees or expenses, late charges, interest, or principal, or other amounts due and payable underthe Note or this Mortgage. In addition, the Mortgagor will pay or cause to be paid, when due and payable, arty indebtedness to any other person which may give rise to or create a mechanic's lien, a matetialmen's lien or other lien, charge, judgment or encumbrance upon all or any portion ofthe Property. However, nothing herein shall be construed as authorizing Mortgagor to further encumber the Property without the express written consent of Mortgagee. 4. The Mortgagor will obtain and maintain on the Property Fare and extended coverage insurance, and such other types of insurance as the Mortgagee, in its sole discretion, may require from time to time. The Mortgagor will also keels the Property insured for the benefit ofthe Mortgagee against loss from such other hazards or casualties, and in such amounts as may be specified by the Mortgagee in its sole discretion. Specifically: (a) The Mortgagor shall keep the Property insured for the benefit of the Mortgagee and the Mortgagor as their respective interests may appear, against loss or damage from abatement of rental income or business interruption (for periods of up to and including twelve (12) consecutive months in duration, and consecutive renewals thereof) resulting from (i) fire, lighting, windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles, smoke, vandalism, malicious mischief, water damage and all other conventional Hazards, (ii) flood (if and when any or all of the Property is located in an irea which is now or hereafter designated by the Secmury of Housing and Urban Development, or any samccessor goverontent agency, as having flood and mudslide hazards, and for which flood insurance is made available under the National Flood Insurance Act of 1986, or any other law, and (iii) when and to the extent required by the Mortgagee, any other risks or hazards which now or hereafter are customarily insured against by persons operating properties with similar characteristics to the Property, in such amounts and for suehporiods as the Mortgagee may from timo.to- time require and approve. In no event &hall the insurance coverage be less than the face amount of the Now, or the amount necessary to comply with any coinsurance percentage stipulated in the policy or policies, whickver is greater. The policy shall contain a one hundred percent (100%) "replacement cost" feature with respect to ali buildings, swxtures and improvements located on the Property, and Mortgagor shall pay promptly, when due, all premiums for such irmutaim. (b) The Mortgagor shall carry and maintain such liability and indemnity insurance (including, by way of example rather than of limitation, coverage for water damage and so-called asstmted and contractual liability), in form and amounts which are reasonably satisfactory to time Mortgagee and which shall name the Mortgagee as an additional insured (which humace shall In vo event be in amounts less than $2,000,000.00 for aggregate personal injury or accident; $1,000,000.00 for any one accident or personal iAiury; and at least the amount of the Loan as the amount for property damage. (e) The orlgirW executed certificates of all such policies and renewals thereof, together with receipts evidencing payment of the current premiums thereof, shall be delivered to and held by the Mortgagee_ Each such policy shall remain in effect for so long as the Loan remains outstanding, and coverage cannot be terminated. No substitutions of coverage are allowed except upon thirty (30) days prior written notice to the Mortgagee. All policies shall contain a standard non-contributing mortgagee clause (in favor of the Mortgagee and entitling it to collect any and all of the proceeds payable under all such insurance), as well as a standard waiver of subrogation endorsement all in such form as is acceptable to the Mortgagee. (d) All such insurance and substitutions referenced herein shall be written in form, amounts and by such companies as shall be satisfactory to the Mortgagee in its sole discretion. All insurance proceeds under such insurance policies shall be payable to the Mortgagee and shall be used, to replace or restore the Property, in part or in full, to a condition satisfactory to the Mortgagee, wherein the Mortgagor agrees to cooperate with the Mortgagee in its application ofi,nsurance proceeds and the Mortgagor will promptly repair, restore, replace or rebuild any part of the Propertydamaged, whether or not any available insurance proceeds are sufhCicnt for such purpose; provided however, that the Mortgagee shall pay over or make available to the Mortgagor only that amount of insurance proceeds received by it, less the application of said funds for any other purpose set forth herein Nothing herein shallrelieve the Mortgagor from its obligations hereunder, and in the event the Property cannot bo replaced or restored to its former value as reasonably determined by the Mortgagee lion an TRUST 8K 1906PG3629 )/05/2008 2:48:45 PM CUMBERLAND COUNTY Inat.# 200516224 - Page 4 of 16 • 09/07/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 06/26 appraisal, then the Mortgagee may in the alternative, use the proceeds in anyone or more of the following ways (i) To the payment of amounts due under the Note and this Mortgage, whether or not then due and payable, first to fees or expenses doe the Mortgagee, if any, then to We charges, if any, then to accrued interest, if any, and then to principal outstanding; (ii) To pre-pay the principal balance due under the Note, in part or in full, with any portion of the proceeds; (iii) To fulfill any of the /Mortgagor's covenants and agreements contained in the Note and this Mortgage; and/or (iv) To be released to the Mortgagor. (e) The Mortgagor hereby authorizes and empowers the Mortgagee to act in the place and stead of Mortgagor, and hereby irrevocably wakes, constitutes and appoints the Mortgagee to act as attorney in fact for the Mortgagor under a special power of attorney coupled with an interest, with the express power, authority and right to settle, adjust, compromise, receive, endorse and transfer payment for all claimos for lass, damage or destruction of all or any portion of the Property under all policies of insurance relating to the Property, for amounts deemed reasonable by the Mortgagee, and this special power of attorney shall not terminate upon the disability of the Mortgagor as provided for w the Code of Pennsylvania, as amended. Provided. Mortgagee shall not exercise such power so long as Mortgagor is not in default beyond any applicable cure period. (f) The Mortgagor will deliver to the Mortgagee the original executed certificates, are duplicate original of each insurance policy. No less than thirty (30) days before the expiration date of any insurance policy required of the Mortgagor pursuant to this paragraph, the Mortgagor will finish to the Mortgagee a certificate of renewal of such insurance policy along with, a paid receipt In the event the Mortgagor Ails or refuses to provide, maintain, or deliver and furnish to the Mortgagee the renewal certificates, orthe policies of insurance required by this paragraph and/or the paid receipt, the Mortgagee my but is not required to obtain and maintain, at the expense of the Mortgagor, such insurance or lendees single-interest insurance as the Mortgagee may deem appropriate and all sum advanced or expended shall be deemed secured by this Mortgage and repayable to Mortgagee upon demand. The Mortgagee shall have the right, exercisable at any time for so long as any portion of the Loan is outstanding, to require the Mortgagor to deposit with the Mortgagee such monthly or yearly amount of funds as the Mortgagee, in its sole discretion, shall deem necessary to enable the Mortgagee to pay, when due and payable, the premiums on the policies of insurance which shall be required of the Mortgagor pursuant to this paragraph. All MWb amounts so deposited with the Mortgagee shall bear no interest and may be commingled with any other finds held by the /Mortgagee, In the event of a Trustee's We of all or any part of the Property by the Trustee wider this Mortgage, the Mortgagee shall succeed to all rights of the Mortgagor (including the right to unearned premituns) in and to all policies of insurance maintained by the Mortgagor with respect to the Property. (g) Nothing in this Mortgage shall be construed to impose any obligation upon either the Mortgagee or the Trustee to: (a) procure insurance on the Property, (b) to expend any aunts ofrmney, to protect or serve the properly, or (c) to take any other discretionary action under this Mortgage. 5. The Mortgagee and the Trustee shall not be held liable whatsoever, for any action or non-action resulting in; (a) the refusal or failure to obtain any insurance, expend any stuns of money or take any such discretionary action, (b) for any delay in the performance of any of the foregoing acts, (c) for the existence or nonexistence of such insurance, or the form or legal sufficiency thereof, (d) the solvency of any insurer in the paymcnt of tosses, or (e) negotiating, compromising, resolving, settling or agreeing with the insurance company in connection with any policy claim pertaining to the Mortgagor or the Property. If the Mortgagor shall fail to make any payment or perform any act required to be made or performed TRUST BK # 906PG3630 1105/2008 2'48:45 PM CUMBERLAND COUNTY fnst.# 200516224 - Page 5 of 16 . 09/07/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 07/26 under this Martgagc, the mortgagee, without notice to or demand upon the Mortgagor and without waiving or releasing any obligation or. default under this Mortgage, at any time thereafter may (but shall be under no obligation to) make such payment or perform such act for the aecount and at the expense of the Mortgagor and nay enter upon the Property for such purposes and take all such action thereon or with respect thereto as the Mortgagee in its sole discretion may deem necessary or appropriate. The Mortgagor imtrediately and without demand shall reimburse the Mortgagee for all payments, costs std expenses incurred, by the Mortgagee in connection with the performance of nay such act, together with interest thereon from the date of any such payment to the date of reimbursement by the Mortgagor at the "default rate" of interest as specified in the Note during each period, and all such payments, costs, and expenses, together with all accrued interest thereon, shall be secured hereby as a further charge and lien upon the Property. 7, The Mortgagor at its expense will cause this Mortgage to be recorded and tiled in the proper public offices to perfect Mortgagee's interests and will pay all the costs of such recordung and filing. The Mortgagor will cotnply with all laws necessary to establish, preserve and protect this Mortgage as a valid purchase money first Mortgage lien on the Property and to establish, preserve and protect the rights of the Trustee and the Mortgagee hereunder. The Mortgagor upon demand will execute and deliver (and pay the costs of preparation and recording thereof) to the Mortgagee from timc-to-dme any further written assurances, documents, instruments and agreements, including, but not limited to, deeds of trust, security agreements, modifications to this Mortgage, financing statements, amignmeris, notes and renewals and substitutions thereto that may be necessary to reaffirm, to correct, modify and to perfect the lien of this Mortgage upon all or any part of the Property. s- Without the prior written consent of the Mortgagee, the Mortgagor will not create, permit or suffer to exist on or with respect to the Property any Bert or encumbrance, whether inferior or superior in right to the lien and rights created by ibis Mortgage, and by any other Loan Documents. The Mortgagor shall comply with all other obligations and agreements that Mortgagor enters into in connection with the Property, and will promptly furnish to the Mortgagee any information requested by the Mortgagee concerning such performance and compliance by the Mortgagor. 9. The Mortgagor ww maintain the Property in good condition and repair, will not commit any waste or suffer any waste to occur witb respect to the Property, and will not create any nuisance or suffer or permit any nuisance to exist on or with respect to the Property or commit, suffer or permit any act to be done in or upon the Property in violation of any law, ordinance, planned unit developmAnt covenam or regulations. The Mortgagor will comply with, or cause to be complied with, all statutes, ordinances and rcquk==ts of any public Utility relating to sewage disposal, water supplies, electrical service, gas service and all otber utility services for the Property. 10. The Mortgagor shall not ini#iate, join in, or consent to any cbnngo in my zoning ordinance, zoning proffer or ether public or private restriction or condition limiting or defining the uses of all or any portion ofthe Property without the prior written consent of the Mortgagee. 11, The Mortgagor will ratify the Mortgagee iumudiately in writing of any condemnation proceedings affecting the Property. At Mortgagee's election, all condemnation awards subsequently to be paid to the Mortgagor in connection with the Property shall be paid over to the Mortgagee to be applied toward repayment of the Loan. 12. The Mortgagor agrees, represents, certifies and warrants as follows, (a) The Mortgagor and any other person liable for the repayment ofthe indebtedness secured hereby shall be personally liable for all costs and expenses incurred in the enforceruent of this Mortgage, including reasonable attorneys fees, even if such costs and expenses exceed the amount of the Loan seevred by this Mortgage, subject to the term and conditions ofthat certain absolute guaranty agreement of even date berewidL All covenants, representations, certification, and warranties set forth herein, shall survive any transfer of ownership or title, any foreclosure of the Property, and any Deed in Lieu of Foreclosure or any other transaction. . (b) Any amounts disbursed by the Mortgagee pursuant to the provisions of the Loan Documents shall be added to, and shall be deemed a part Of, the indebtedness secured by this Mortgage, sball be secured in TRUST BKI906PG363I MMM19n08 2:48:45 PM CUMBERLAND COUNTY In3t.# 200516224 - Page 6 of 1 E 09/0.7/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 08/26 the same manner as the Note is secured, shall bear interest from the date of the disbursement thereof to the date of repayment at the "default rate" of interest as defined under the Note during such period and allofwhich shall be repsid to Mortgagee by Mortgagor irrowdiately, without demand 13. The Mortgagor shall be in default under this Mortgage if the Mortgagor breaches any of the provisions herein, or if one or more of the following events (herainafter collectively referred to as the "1?vettts of Default") shall Occuur for any reason whatsoever, wbethersuch occurrence sb&n be voluntary or involuntary or coax about or be effected by operation of law or pursuant to or in compliance with any judgment, decree, or order of any court or any order. Wile or regulation of any administrative body, or otherwise: (a) If there has been stay am payment of any rnonthlypayments due on the first day of the mouth as required pursuant to the Note, after the expiration of any applicable grace period, or any non-payment ofany installment or payment of principal, interest andlor other expenses or costs due under the Note or this Mortgage, when and as the same shall become due and payable; (b) If there shall be a failure by the Mortgagor to timely snake any payment of the taxes or insurance premiums with respect to anyobligations of the Mortgagor to any person, entity or government under any assessment, agreem®nt, policy, or instrument pursuant to which any such indebtedness arose, or may have been issued, created, assumed, or guaranteed by the Mortgagor in connections with the property, and which continues fur more than any applicable period of grace; (c) If there shall be a fhilure to perform any non-monotary provision or requirement, after the expiration of a period of thirty (30) days after written notice of the failure has been provided to the Mortgagor and the Guarantors, without the defltult having been cured: (i) under the Note, or (ii) under any covenant, term or condition of this Mortgage, or under any of the other Loan documents executed in connections herewith; (d) If any representation, warranty or any other statement of fact, contained in any of the loan Documents or in any writing, certificate, report statement or applications furnished to the Mortgagee at any time pursuant to or in connection with the Loan, this Mortgage, The Note, or the Property shall prove to have been false, misleading or incomplete in any material respect at the time when such representation, warranty or statement of fact was made or furnished to the Mortgagee; (e) if the Mortgagor or any obligor on the Note shall admit orally or in writing ass inability to pay debts generally as they become due; make an assignment fox the benefit of creditors; or commence a proceeding for the appointment of a receiver, trustee, liquidator, or conservator for Mortgagor or any obligor, or for any part of the Property; (1) If the Mortgagor of any obligor on the Note shalt file a petition under any chapter of the Unitcd States Bankruptcy Code, in bankruptcy or a petition to take advantage of anyinsolvency actor any other statute, federal law or state law relating to beak uptcy, insolvency, homestead relief, or the relief of debtors, or obtain an "order for relief" nder any bankruptcy court; or a court of competent jurisdiction shall assume custody or control of the Mortgagor, any obligor on the Note or of the whole or any substantial part of their assets, or if there is corm emoed against the Mortgagor or any obligor on the Notc, an involunt uypetition in bankruptcy and suchpt+occeding orpetition remains undiswissed for a period ofseventy-five (75) days, or ifthe Mortgagor or any obligor on the Note by any act indicates his consent to, approval of or acquiescence in any such proceeding or potation; (g) if any judgment against the Mortgagor or any obligor on the Note or any post-judgment attachment or execution against any of the property of the Mortgagor or any obligor; on the Note remains unpaid, unstayed, or undfsmissed after any appeal periods have expired for a period of more than thirty (30) days; (b) If, in the opinion of the Mortgagee in its sole discretion, any substantial portion of the TRUST BK 1906PG3632 !0512008 2:48:45 PM CUMBERLAND COUNTY Instl 200596224 - Page 7 cf 16 • 09/0m7/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 09/26 Property shall be lost, stolen, abandoned damaged or destroyed other than in the ordinary course of business, and is not covered under the insurance policies required to be maintained pursuant to the Mortgage; (1) If Mortgagor fails to keep the Property insured as required hereunder; or 6) if Mortgagor fails to timely perform or complete any of its obligations, duties, promises, warranties, payments, responsibilities and promises set forth in the Note or this Mortgage, after passage of the applicable grace period. 14. Upon the occurrence of any one of the Events of Default, and the passage of any applicable grace period contained in the Loan Documents, without the defaulthaving been cured, the Mortgagee and/or the Trustee may, but is wader no obligation to so act, do arty one or more of the following: (a) The Mortgagee may accelerate the Note, and declare all stuffs due under ft Note and this Mortgage to be immediately due and payable, and such sums shall thereupon become due and payable without prcmtnf=a demand, protest, notice of dishonor or any other notice of any kind, all of which the Mortgagor hereby expressly waives; (b) Regardless of whether the Mortgagee accelerates the maturity of the Note and all sums due hereunder, the Mortgagee, or the Trustee upon the request of the Mortgagee, may enter upon and take possession of the Property without the appointment of a receiver or an application therefor, and without any advance notice to the Mortgagor. and may perform any and all acts, including, without limitation, the employment of a managing agent for the Property and the leasing of the Property, which the Mortgagee deems necessary or proper to conserve or operate the Property. The Mortgagee may collect and receive the rents, issues, and profits from the Property and rtray apply the same. (i) to pay all ongoing cows, charges, expanses, fees, commissioam and insurance premiums incurred or suffered by the Trustee and/or the Mortgagee in connection with such action and (ii) to pay all ongoing operating costs, trade creditors, management fees, repairs or maintensocc, and (iii) any assessments or other charge which may have priority in lien rights over the Gen of this Mortgage, and (iv) to the prepayment of principal due under the Note and this Mortgage, whether or not immediately due and payable, and (v) to the payment of any monthly installments past due, or that are coming due under the Note as the Mortgagee in its sole discretion may deem appropriate. The Mortgagee shalt apply such proceeds in such order or priority as Mortgagee shall determine in its sole judgment, and shall apply only such rents, issues and profits as shall actually be received; (c) Upon taking possession of the property, the Mortgagee at the expense of the Mortgagor and the Property, may gem time-to-time (i) take such steps and expend such sums as are reasonably necessary to preserve and protect the Property, including, but not limited to completion of the development of the Real Property, and (ii) make all necessary and proper repairs, renewals, replacentants and useful or required alterations, improvements and changes to the Property and/or specifically to the Improvements as, in the Mortgagee's sole judgment and discretion, may be reasonably necessary or desirable. (d) (titre any Event of Default at any time, and fl'om timo-to-thne without releasing the Mortgagor from any obligation hereunder, and without waiving the default. (e) Commence and maintain one or more actions at law or in equity or by any other appropriate remed)r (i) to protect and enforce the Mortgagee's rights, whether for the specific performance of any covenant or agreement herein contained (which covenants and agreements the Mortgagor agrees shall be specifically enforceable by injunctive relief or other appropriate equitable remedy), or (ii) to collect any sum then due heretmder, or (iii) to aid the execution ofanypower herein granted, or (iv) to foreclose this Mortgage and/or to sell the Property, without regard to whether or not any stmt secured by this Mortgage is then due and payable and without prejudice to the right of the Mortgagee thereafter to pursue and enforce any other appropriate remedy against the Mortgagor, whether such remedy is provided for hereunder or by any applicable law. TRUST BULK 1906PG3633 )/0512008 2:43:45 PM CUMBERLAND COUNTY Inst.# 200516224 . Page 8 of 16 09/0-7/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 10/26 15. In addition to all other rights and privileges Mortgagee and Trustee enjoy hereunder, Mortgagor, upon the occurrence of an Event of Default, and the passage of any applicable grace period contained in the Loan Documents, without the default having been cured, hereby: (a) Authorizes and empowers the 't'rustee to take possession of any or all of the Property, to foreclose under the Mortgage, including any atnendments thereof or additions thereto and to sell any or all of the Property or any estate or interest therein in aeoordanca with the terms of this Mortgage, and in accordance with the legal requirements governing foreclosure under deeds of trust, security trusts and/or security agreements, and/or (b) Consents to the passing of a decree for the sale of any or all of the Property or auy estate or interest therein by any court Craving jurisdiction over the sale of the Property. I6. If any or all of the Property or any estate or interest tberein is to be sold under the provisions of ibis Mortgage, by foreclosure of this Mortgage or otherwise, it may be sold at public or private auction with such postponernent of any such We as the Trustee may deem appropriate and without regard to any right of the Mortgagor or any other person to the marshaling of assets. Any such sale or sales shall be held at such time or times aril at such place or places, and shall be made upon such terms and conditions, as the Trustee tray deem appropriate. The Mortgagee may bid and become the purchaser at any such sale, and shall, upon presentation ofthe Note or a true copy thereof be credited for the unpaid balance due under the Note and any interest accrued and unpaid thereon, or such portion of such unpaid balance or interest as the Mortgagee may specify, against the price bid by the Mortgagee. The terms of sale being complied with, the Trustee may convey the Property "as is" "where is", free of and discharged from all estate, right, titlc or interest of the Mortgagor at law or in equity. Advertisement required for aTrustee foreclosure sale: Once a week for (2) successive weeks. No other advettimmmt shall be necessary, 17. If the Trustee shall postpone or continue the sale *fall or any portion of the Property at any time or from tithe-to-time, the Trustee shall advertise the postponed sale in the sme manner provided in this Mortgage for the advertiserhrent of the original sale. I il. All of the provisions setforrh inthc Code of Permaylvania, as amended (the "Perasylvania Codc"), as they exist as of the date of this Mortgage, are expressly incorporated herein by reference as if fully set forib and stated in the body of this Mortgage, and the following complete provisions of Pennsylvania Code, are expressly incorporated herein by reference to them in "short form": Exemptions Waived; Subject to all upon default; Any Trustee may act; Deferred Purchuc Money; Renewal, Extension or ReinsWertneat permitted; Insurance Required; Substitution of Trustee Pertnitted - for any reason and without prior notice to the Mortgagor; Bidder's deposit of not more short twenty percent (20%) of the We price maybe required. 19. No Purchaser of all or airy portion of the Property shall be required to see to the proper application of the purchase money. If any obligations and liabilities of the Mortgagor or any obligor on the Note to the !Mortgagee shall constitute contingent obligations or liabilities as of time date of any sale under this Mortgage, the Mortgagee shall be entitled to receive from the proceeds of any such sale, before the payrneW ofany residue to the persons entitled to receive it, a sum equal to the maximums amount of such contingent liabilities and obligations of the Mortgagor and the obligors on the Note, and the Mortgagee shall be entitled to hold or apply such suns without the payment of interest theroon, to or for the account of the Mortgagor until such time as all sueb contingent obligations and liabilities either shall become absolute and unconditional obligations and liabilities of the Mortgagor to the Mortgagee or shall be eliminated as obligations and liabilities to the Mortgagee. The Mortgagee shall be entitled to of hat imutmediately against the sum so held and set aside from ft proceeds of any such sale any such contingent obligations and liabilities which become TRUST BK t 906PG3634 3/0512008 2:46:45 PM CUMBF4RLaND COUNTY inst.# 200516224 • Page 9 of 16 • 09/0.7/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 11/26 absolute and unconditional and, after the elimination of all contingencies and conditions, sball pay over the excess, if arty, of such sum to the person or persons entitled to receive it. 20. (a) The Mortgagee shall bwm, and is hereby granted by the Mortgagor with a warranty offurther assurances, the irrevocable power to appoint a substitute trustee or trustees hereunder and to remove the Trustee, or any of them from time to time without notice and without spooifying any reason therefor, by filing for record a deed ofappoiatnrwt in the office inwhich this Mortgage is recorded. Such power oftemoval and appointment may be exercised as often and whenever the Mortgagee deemv it advisable, and the exercise of such power, no matter how often, shall not result in an exhaustion of such power. Upon the recordation ofeach such deed ofappointment or removal, each Trustee so appointed shall become fully vested with identically the same title and estate in and to d%e Property and with all of the identical rights, powers, trusts and dudes of his predecessor or predecessors in the Property, Al ifosiginally manned as the Trustee hereunder. Whenever, in this Mortgage, reference is made to the Trustee, it shall be construed to mean the Trustee or trustees for the time being, whether the original or any successor Trustee. All title, estate, rights, powers, trusts and duties hereunder given, appertaining to or vesting into the Trustee shall be in each Trustee, so that any action here=der or purported to be hereunder of either one of the original or guy successor trustees shall for all purposes be considered to be, and shall ben effective as, the action of both trustees. The requirement that any trustee must post bond or qualify for bond to act in the capacity of truaDee, is hereby expressly waived. (b) If a sale of the Property and the Mortgagor's interest therein: (i) occurs by foreclosure, then the proceeds of such sale, together with any other sum then held as security hereunder or due under any of the provisions hereof in connection with the Property, shall be applied as set forth and required in the Pennsylvania Code, after paying all expenses of sale, including reasonable attorneys fees and a commission to the Trustee equal to five percent (5%) of the gross proceeds of such sale, or (ii) occurs by judicial We or otherwise, then the proceeds of such sate, together with any other sum then held as securitybercundet or due under any of the provisions hereof in connection with the property, shall be applied first, to all expenses of sale, inehhding reasonable attorneys fees, second, to pay the Trustee a commission equal to five percent (596) of the gross proceeds of such sale, third, to all Taxes which the Trustee or the Mortgagee deem advisable or expedient to pay, and fourth to all outstanding indebtedness due the Mortgagee, together with interest thereon, as herein provided, to the payment of the cumulative and aggregate indebtedness secured hereby, paying over the surplus, if any. The Trustee is under no duty to evict any tenants or to obtain possession of the Property for any new purchaser. 2). Each power, right and remedy of the Mortgagee under this Mortgage shall be separate, distinct and cumulative of the other powers, rights, and remedies ofthe Mortgagee under this Mortgage, the Mote, and applicable law. No act of the Mortgagee shall be construed as as election of remedies to prevent the Mchgagee from exercising any other right or remedy of the Mortgagee loader this Mortgage, the Note, or applicable law. 22. Any delay or failure by the Mortgagee to insist upon the strict performance by the Mortgagor of any of the terms and conditions of this Mortgage or the Note, at any time or from time-to-time, slwll A constitute: (i) a waiver of any of Motgagce's rights, privileges, or remedies hereunder, or (h) a waiver of the tern and conditions of this Mortgage, and the Mortgagee, notwithstanding any such delay or failure, shall have the right thereafter w insist upon the strict performance by the Mortgagor of all of the terns and conditions of this Mortgage to be performed by the Mortgagor. The Mortgagee may take any one or more of the following acts without notice to the Mortgagor or any obligor on the Note, withoutany Rather consent of the Mortgagor or any obligor on the Note, without adversely affecting Mortgagee's rights hereunder or under any of the Loan Documents, without discharging or releasing the Mortgagor, any Guarantor or any other person fmm liability under the loan Documents and without impairing or affecting the validity and enforceability of this Mortgage: (a) The Mortgagee may fail or refuse to comply with any request ofthe Mortgagor or any obligor on the Note to take action to foreclose this Mortgage or otherwise to enforce any of the provisions of the Note or this Mortgage; TRUST $K 1906PG3635 )/05/2008 2:48:45 PM 10 CUMBERLAND COUNTY Inst.# 200596224 - Page 10 of 16 • 09/07/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 12/26 (b) The Mortgagee may release, with or without consideration, all or any portion of the property &onn the lieu of this Mortgage or any other collateral securing the payment of any of the indebtedness secured by the lien of this Mortgage; (c) The Mortgagee may release, with or without consideration, any obligor on the Nate or this Mortgage, or any Guarantor under the Guaranty; (d) The Mortgagee may enter into any agreement or stipulation to extend the maturity afthe Note, modify the terms of the Note or this Mortgage, or reinstate the indebtedness evidenced by the Note in accordanoe either with the schedule of maturities as of the tithe of any acceleration of tho Note or with such new schedule of maturities as may be agreed upon. If the Mortgagor is not the doer of the Note, the Mortgagor consents to, and waives notice o4 all loans and/or advances of fluids to the maker of the Note and agrees that the Mortgagee, without notice to the Mortgagor and without any further consent of the Mortgagor, nay grant extensions of time and other indulgences to the maker of the Note and any other obligor on the Note, including, without limitation, the maturity date and interest rate of the Note, and may renew the Note, in whole or in part, without releasing any obligor under the Note, or any of the Guarantors under the Note or Guaranty. 23. if the Trustee and/or the Mortgagee: (i) shall be trade parties to any action, suit, or other legal or governmental proceeding relating to or Affecting the Property, the title to the Property, and/or the validity and/orpriority of the lien of this Mortgage, (u) in their sole discretion shall consider it necessary our advisable to commence or intervene in any such action, suit, or other legal or governmental proceeding, or (iii) shall employ attorneys to devise and represent them in the enforcement of any of the provisions of the Note and/or this Mortgage, then in any and all such events, the Mortgagor shall reimburse the Trustee and/or the Mortgagee, immediately and without demand, for all reasonable attorney's fees and court costs incurred in any and all such events, together with interest thereon from tho date of expenditure to the date of payment at the "default rate" of interest as set forth in the Note daring such period and all such costs, cbarges and expenses together with all accrued interest thereon shall be secured hereby as a further charge and lien upon the Property. The Trustee shall not be required to see that this Mortgage is recorded and shall not be liable for the default or misconduct of arty agent or attlomeyappointed by it or for any outer act or failure or refusal to act in connection with this Trust, except wilful misconduct. The Tbista?n may act upon any instnun w believed in good faith to be genuine and to be signed by the proper party or parties and shall not be liable for any action taken or sut£ered by it in reliance thereon. The Trustee in its discretion may coosah counsel from titno-to-time in connection with ttris Mortgage at the sak expense of Mortgagor and shall not be liable for any action taken by it in accordance with t1w advice of such counsel. 24. The Mortgagor will permit the Mortgagee and its officers, employees, agents and independent contractors to make entry upon and inspections of the Property without prior notice to the Mortgagor and without commuting any trespass. 25. All amounts due under the Note and this Mortgage shall become immediately due and payable, at the option of the Mortgagee, ifthere should be any sale, conveyance, transfer, encumbrance, assignment, or other change in the legal or beneficial ownership of all or any portion of the Mortgagor (if Mortgagor is not a natural person) or the Property without the prior written consent of the Mortgagee, regardless whether any such sale, conveyance, transfer, encumbrance, assignment or any other change in the legal or beneficial ownership of all or any portion of the Mortgagor or Property adversely affects the interests of Mortgagee. NOTICE - THE DEBT SECURED HERESY IS SUBJECT TO CALL IN FULL OR TIM 'PERMS THEREOF BEING MODIMEA IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY CONVEYED. 26, (a) So long as these is no default under the Note, Mortgage or the Loan Documents executed by Mortgagor as security for this Loan, Mortgagot Shall not be entitled to release all or any portion of the Property from the lien hereof except on the following conditions precedent thereto, which must be satisfactory to Mortgagee: TRUST BK 1906PG3636 11 3105/2008 2:48:45 PM CUMBERLAND COUNTY InstA 200516224 - Page 11 of 16 09/!37/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 13/26 W that no part of the Property either before or after the proposed partial release, shall leave any pat of the remaining property landloeimd. In no event shall Trustee consent to any release which would leave any part of the secured property landlocked, or wbicb in the opinion of the Mortgagee would negatively affect the value of the property, until Mortgagee has received adequate additional compensation fbr said release, as determined solely, but reasonably, by Mortgagee. The Trustee shall join in any subdivision or resubdivision of said Property reasonably necessary to the development thereof, which shalI constitute a release from the lien of this Mortgage for any street or alley shown thereon provided; (ii) that such releases do not restrict ingress and egress to the remaining Property; (iii) that the granting of the requested releases will not negatively impact the value of Mortgagee's remaining security Property, as Mortgagee in its sole, but reasonable, discretion and authority shall determine; (iv) that no Event of Default exists under the Mortgage, no other default exists under any Loan Doeume ta, and thatno event has occurred and is continuing which, withnotiee or the passage of time, or both, would constitute an Event of Default with respect to the Mortgage; (v) that the lot or parcel to be released is legally, validly and properly subdivided and such subdivision has been approved by all proper governmental authority, and all necessary plats b ive been properly recorded: (vi) that all requisite loan fees due the Mortgagee in accordance withthe Cornmitment or. any other Loan Documents have been paid to Mortgagee, in full; (vii) at the option of the Mottgageo, the Mortgagee orders and obtains an appraisal at the sole cost of the Mortgagor for the purpose of ealeula ring the amount of the Loan that is to be curtailed and which is attributable to the parcel or lot to be released; and (viii) the Mortgagee has received an amount equal to the greater o#1 (a) one hundred perocot (100°x6) of all funds disbursed by Mortgagee in connection with said lot or parcel, and all improvements thereon; (b) one hundred pcreent (100°10) of tlat portion of the Loan that is reasonably deemed secured by the improved lot as determined by the Mortgagee; or (c) FORTY FOUR THOUSAND AND NO/100T$S DOLLARS (544,000.00) per lot, together with any accrued interest, fees and charges due in, connection with the Loan, all as determined solely by the Mortgagee (the "Pay-Down"); (b) Upon satisfactory compliance with the above conditions as determined by the Mortgagee, Mortgagee shall, at the expense of the Borrower, and after payment to Mortgagee of Mortgagees reasonable costs and fees incurred, and after payment by the Borrower of the Pay-Down, consent to such release, (c) If the Borrower does not comply with all conditions set forth herein, no release of the Property shall be granted. 27. Upon full payment of all amounts due under the Note and this Mortgage, the Trustec, upon the request of and at the expense of the Mortgagor, will exec= a proper release of this Mortgage. 28, Any person executing this Mortgage in the capacity of an agent, officer, employee or partner of the Mortgagor represents and wan-ants that he has the authority to execute this Mortgage on behalf of the Mortgagor, If the Mortgagor is a partnership or company, the Mortgagor and each individual executing this Mortgage on its behalf represent and warrant that the entity was duly formed and organized and validly exists under the laws of the state in which it was created and that the execution of this Mortgage has been authorized by the entity and will not violate any provision of the partnership or operating agreement. If the ]Mortgagor is a corporation, the Mortgagor and each TRUST BK 1906PG3637 12 39/0512008 2:48;45 PM CUMBERLAND COUNTY Inst.# 200516224 - Page 12 of 16 4 09/0?/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 14/26 individual executing this Mortgage on behalf of the corporation represent and warrant that the Mortgagor was duly incorporated and organized, and validly exists under the laws of the state in which it was created and that the execution of this Mortgage has boon authorized by the Mortgagor's Board of Directors and will not violate its charter or bylaws. All persons executing ibis Mortgage in the capacity of agents, officers, employees or partners of the Mortgagor, jointly sod severally agree, in their capacity as individuals, to indemnify the Mortgagee for any violation of the warranties and representations of this paragraph. If the Mortgagor consists of more then one person, each person who is a Mortgagor shall be jointly and severally liable under all obligations, indebtedness and liabilities of the Mortgagor under, this Mortgage. 29. The Mortgagor shall notify the Mortgagee in the manner prescribed below of (i) the institution ofany suit, action or other legal proceeding affecting or relating to all or any portion of the Property, (ii) the institution of any suit, action or other legal proceeding against the Mortgagor or any obligor on the Note, (iii) any actual or threatened taldug of, or damage to, all or any portion of the Property by condemnation or other exercise of the power of event dotnain, (iv) any damage to, destruction oij or loss of all or any portion ofthe Property, and (v) any other matter, event of occurrence which constitutes any of the Events of Default or which, upon the passage of time or the giving of notice or both, would constitute an Event of Default Such notice shall be given to the Mortgagee within five (5) days after the date on which the Mortgagor shall first receive notice of any matter, event or occurrence with respect to which notice must be given under this paragraph. 34. Any notice which may be given by it party to this Mortgage must be in writing and shall be deemed to have been given by the sending party and received by the receiving party when any such notice shall have been hand- dchvcrod to the receiving party at the address designated herein for such receiving parry, or when any such notice shall have been posted in the oinUed mail of the United States, return receipt requested and postage prepaid, and addressed to the receiving party at the address designated herein for such receiving party. The Mortgagor hereby designates as its address for the purpose of receiving any such notice, the address stated in this Mortgage. Any party may change its designated address stated herein, at any time, by giving notice of such change to the other parties to this Mortgage in the manner set fortb in this paragraph. 31. The cov-2nts, tenor and conditions of this Mortgage eW be binding upon, and inure to the benefit of, the parties to this Mortgage and their respective heirs, personal representatives, successors and assigns and successor; in title. In this Mortgage, the singular number" include the plural and the phial number shall include the singular. The use of any gender in this Mortgage shall be applicable to all genders. The words "person" and "persons" in his Mortgage mean and include all natural persons, corporations, partnerships, companies, unincorporated associations, governmental agencies, trusts, guarantors, owners, estates and all other legal entities. 32- Time is of the essence with respect to each and every covenant, agreon=t and obligation of the Mortgagor under this Mortgage. 33. If any provision of this Mortgage shall be or become invalid, illegal or unenforceable, the validity, legality and enforceability of the other provisions of this Mortgage shall in no way be affected thereby. 34. Mortgagor hereby stipulates and warrants that the Loan secured hereby is a connnercial loan, and that the proceeds of the Loan will be used for invesitnent or commercial purposes. 35. This "Mortgage" shall mean this MORTGAGE and all suppletn,ents hereto and amendments hereof. 36. The "Mortgagor" shall mean the persons hereinabove named as such, its/their successors and assigns, successors in title, and owners of any or all of tits Property. 37. The Property being located in the Commonwealth of Pennsylvarda, this Mortgage and the rights and indebtedness secured hereby shall, without regard to the place of payrnerrt of any sum paid hereunder, be given effect and construed by application of the law of the Connazonwealth of Pamsylvania. TRUST 13 BK 1906PG3638 rt0=D08 2;45;45 PM CUMBERLAND COUNTY InstA 200516224 - Page 13 of 16 • 09/07/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 15/26 38. IN ADDITION TO ANY OTHER WAIVERS CONTAMD IN THIS MORTGAGE, THE MORTGAGOR HEREBY REPRESENTS, WARRANTS AND CONSENTS TO AN EXPRESS RELEASE, RELINQUISHMENT AND UNCONDITIONAL WAIVER OF, (1) ANY AND ALL RIGHTS TO RECEIVE AN ACCOUNTING OF ANY SURPLUS COLLATERAL, (II) TIE RIGHT TO A TRIAL BY JURY, AND (III) ANY AND ALL CLAIMS OR THEOMES OF LIABUX Y AGAINST THE MORTGAGEE IN FURTHERANCE OF ITS REMEDIES UNDER THIS MORTGAGE WITI3 RESPECT TO THE PROPERTY. THE MORTGAGOR REPRESENTS AND WARRANTS THAT LEGAL COUNSEL OF CHOICE HAS BEEN AVAILABLE OR RETAINED TO REVIEW AND INTERPRET THIS MORTGAGE AND ALL WAIVERS AND RELEASES CONTAINED HEREIN, SAID COUNSEL DEING AVAILABLE, ORHAVING EXPLAINBD AND ADVISED THE MORTGAGOR, AS TO TIM MORTGAGE CONTENTS AND MEANING. MOREOVER MORTGAGOR FURTHER REPRESENTS AND WARItAN`I'S THAT MORTGAGOR COMPLETELY UNDERSTANDS THIS MORTGAGE HAVING SEEN AND READ ITS CONTENTS, AND IS MCUTING TICS. MORTGAGE VOLUNTARILY AND WITH MORTGAGOR'S FREE CONSENT AND DBMS. MOREOVER, THE MORTGAGOR HAS REVIEWED ANDAPPROVED THE RELEASESAND WAIVE M SMEIN, AND HAS BEEN ADVISED BY COUNSEL OF THE CHOICES AVAILABLE TO MORTGAGOR AS TO THE MEANING AND EFFECT OF THE RELEASES AND WAIVERS AND HAS FREELY AND WITHOUT DURESS AGREED TO EXECUTE TIES MORTGAGE. 39. The grants, rights, privileges, and remedies in favor ofthe Mortgagee and Trt+stee hercin, shall be a covenant running with the land, and shall inure to the benefit of We Trustee, its successors and/orsuccessors-yin tide, and to the Mortgagee, its successors, assigns. and/or its successors-in-title. WITNESS the following siguatur+ea(s) and seal(s): AH&T Investments, LLC, a Virginia limited liability company Frank Tramer Manager COMMONWEAL. E,?FGINIA COUNTY OF { _ to-Wit, The fcoegoing instru mm t was acknowledged before me tllw? day Manager of AH&T Inveatmc,t% LLC, a Virginia liabted liability company j my commission expires: 8/31?a g TRUST BK 1906PG3639 14 YOSY2008 2:48.46 PM CUMBERLAND COUNTY Inst_ff 200516224 . Page 14 of 16 . 09/0.7/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 16/26 Exhibit A ALL THAT certain tract of land situate partly in Southampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a corner of lands an at an iron pin now or formerly of The Shippensburg University Foundation; thence along lands of the same, South 74 degrees 12 minutes 11 seconds West 610,05 feet to an existing iron pin; dtcnce along lands now or formerly of The Shippensburg University Foundation, South 74 degrees 45 minutes 44 seconds West, 696.10 feet to an existing iron pin at the corner of lands now or formerly of The Shippensburg University Foundation and lands now or formerly of Mercy Place Ministries; thence along lands now or formerly of Timothy M. Nye, North 42 degrees 02 minutes 11 seconds West 950.75 feet to an existing iron pin; thence along the same, South 74 degrees 52 minutes 08 seconds West 168.73 feet to an existing iron pin; thence along lands now or formerly of Peter T. Nye, Nortb 43 degrees 02 minutes 30 seconds West, 791.73 feet to a eul de sac along Lot No. 7 to an iron pin; thence along a curve to the left having a radius of 330.00 feet and a chord bearing of North 62 degrees 36 minutes 26 seconds West 221.02 feet; thence along land of Lot No. 5 and land now or formerly of The Shippenssburg Auction Center, LLC, North 53 degrees 23 minutes 55 seconds East, 722.19 feet to an existing iron pin; thence by lands now or formerly of Paul W. Leinbach, North 42 degrees 55 minutes 48 seconds West, 758.04 feet to an existing iron pin; thence by the same, South 51 degrees 47 minutes 20 seconds West, 55.02 feet to an existing iron pin; thence by the same, North 42 degrees 46 minutes 39 seconds West, 274.38 feet to a point in U. S. Route 11; thence along U.S. Route 11, North 53 degrees 25 minutes 37 seconds East, 10.06 feet to a point; thence along lands now or formerly of Dennis R. Swan, South 42 degrees 46 minutes 39 seconds East, 264.06 feet to an existing iron pia,; thence along the same, North 51 degrees 47 minutes 20 seconds East, 55.00 feet to an existing iron, pin; thence along lands now or formerly of James D. Willis, Jr., South 42 degrees 55 minutes 48 seconds East, 1,008.52 feet to an existing iron pin; thence along lands now or formerly of James D. Willis, Jr., South 43 degrees 51 minutes 07 seconds East, 810.42 feet to an existing iron pin; thence along the same, North 45 degrees 12 minutes 15 seconds East, 1108.71 feet to an existing iron pin; thence along lands now or formerly of Randall A. Gilbert, North 45 degrees 42 minutes 03 seconds East, 300.43 feet to an existing iron pin at the comer of lands now or formerly of The Beistle Company; thence along lands now or formerly of The Beistle Company, South 44 degrees 27 minutes 51 seconds East, 746.23 feet to an iron pin at the corner of lands now or formerly of The Beistle Company and lands now or formerly of The Shippersburg University Foundation; thence along lands now or formerly of The Shippensburg University Foundation, South 45 degrees 39 minutes 00 seconds West, 753.03 feet to an existing iron pin; thence along lauds of the some, South 39 degrees 29 minutes 20 seconds East, 779.75 feet to an iron pin, at the point and place of BEGINNING. CONTAINING 62.33133 Acres, more or less, according to a subdivision plan prepared by Carl D. Bert and Associates, dated January 3, 2005 and recorded in the Office of the BNB 1906PG364O N05/2008 2:48:45 PM CUMBERLAND COUNTY Inst* 200596224 - Pape 15 of 16 09/0*7/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 17/26 Recorder of Deeds of Cumberland county, Pennsylvania, in Play Book 90 at Page 71. Being Lot No. 6. BF ',No the same real estate dlat The Estate of Frank E. Hollar, Jr., by its deed datedMay 5, 2005, and intended to be recorded Fior hereto in the Office of the Recorder of Deeds in and for Cwnberland County, Pmwylvan* granted and conveyed to A H&T Inven nests, LLC, the Mortgagor berein. to be recorded n ..it '].,.-nd County PA r i2. ec order of Deeds ON 1906PG3641 CUMBERLAND COUNTY Insi# 200516224 . Page 16 of It x???a?+ ? EXHIBIT D Wecyl?C MORTGAGE -1Fy 10 THE MAXIMUM AGGREGATE AMOUNT OF PRINCIPAL TO BE SECURED AT ANYONE TIME SHALL BE $2,000,000.00. NAME AND ADDRESS OF NOTEHOLDER FOR NOTICES BRANCH BANKING AND TRUST and CURRAN & WHITTINGTON, P.C. 1308 Devil's Reach Road Attorneys at Law Suite 200 9214 Center Street, Third Floor Woodbridge, Virginia 22192 Manassas, Virginia 20110 Attn: Brian J. Gormley Attn: Joseph F. Curran THIS MORTGAGE ("Mortgage") is made this -C' day of May, 2005, by AH&T Investments, LLC, a Virginia limited liability company, who is the debtor herein having an address of 15051 Taylors Mill Place, Haymarket, Virginia 20169 (hereinafter individually or collectively referred to as the "Mortgagor") and BRANCH BANKING AND TRUST COMPANY OF VIRGINIA, organized and existing under the laws of the United States of America, its successors and/or assigns, and having an address of 1308 Devil's Reach Road, Woodbridge, Virginia 22192 (hereinafter referred to as the "Mortgagee"). WITNESSETH: That in consideration of the premises hereof and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Mortgagor does hereby grant, bargain, sell, convey, assign and transfer with General Warranty and English Covenants of Title unto the Mortgagee, their successors and substitutes, the real property described in Exhibit A, attached hereto and expressly made a part hereof (the "Real Property"); TOGETHER WITH ALL OF THE FOLLOWING GOODS OR COLLATERAL WHICH ARE AFFIXED OR TO BECOME AFFIXED TO THE REAL PROPERTY: All machinery, apparatus, equipment, appliances, fittings, including without limitation all engines, furnaces, boilers, stokers, pumps, heaters, water heaters, incinerators, heat pumps, fans, heating systems, air conditioning systems, ventilation systems, power equipment, laundry equipment, all buried tanks, above ground tanks, water tanks, pools, dynamos, motors, conduits, generators, switchboards, phone systems, including support relay, imagery, computers and electrical apparatus and equipment, all storage cubicles, billboards, lighting fixtures, light switches, incinerating and plumbing apparatus and equipment, all compressors and exhaust fans, all elevators and escalators, all venetian blinds, shades, awnings, blinds, draperies and drapery/curtain rods, all fire prevention and fire extinguishing apparatus and equipment, all plumbing fixtures, all vacuum cleaners and systems, all floor maintenance apparatus and equipment, all carpeting, carpet padding, rugs, linoleum and other floor covering, all refrigerating and cooling apparatus and equipment, all safes, cabinets, lockers and shelving, all screens and screen doors, all doors, all refrigerators, ranges, ovens, microwave ovens, garbage disposals, dishwashers, trash compactors, washing machines, clothes dryers, and other appliances, all electric signs, mirrors, all call systems, burglar alarms and security systems, and all keys, codes and access cards used in connection with any of the above, wherei, all interests in said goods shall be deemed to be purchase money security interests, and all of said goods listed herein are hereby understood and agreed to be deemed fixtures or deemed to become fixtures and forming a part of the Real Property to the extent permitted by law (collectively, the "Fixtures"); TOGETHER WITH all foundations, structures, buildings and improvements, including glass, materials, trees, shrubs, plants, minerals, timber, wood or dirt now located on, or hereafter placed on, in, under, or above the Real Property (the "Improvements"); TOGETHER WITH all personal property, inventory and equipment, including but not limited to fumiuue, furnishings, lamps, desks, chairs, typewriters, computers, computer disks, printers, key boards, goods, supplies, books, charts, paper, copiers, fax machines, telephones, stored building materials, tools, floor maintenance apparatus and equipment, lobby and public space furnishings, bulbs, ornaments, pictures, art work, paintings, decorations, and signage TRUST BKI906PG3642 bf any type (collectively the "Personalty"), now located on, or hereafter placed on, in, under, or above the Real Property or acquired with loan proceeds secured by this Mortgage; TOGETHER WITH all building plans, renderings, drawings, architectural plans, site plans, subdivision plans, engineering plans, engineering plats, interior plans, configurations, surveys, survey letters and certificates, building permits, electrical permits, heating and air conditioning permits, health permits, environmental permits, government approval letters, variance letters, zoning letters, zoning approvals, zoning resolutions, water approvals, tap-in approvals, sewer approvals, letters of credit, performance bonds, security bonds, development bonds,.county and/or city required security bonds, set-aside letters or letters of credit, and all application fees, filing fees, plan fees, permit fees, deposits, cash and credit posted in connection with any of the above, and any and all other papers, drawings, government communications, permits, approvals, proffers and security posted in connection with the construction of Improvements on the Real Property (the "Plans and Approvals"); TOGETHER WITH all easements, rights of way, privileges, rights, tenements, hereditaments, appurtenances and all other estate, right, title and interest of the Mortgagor, now owned or hereafter acquired and appertaining, belonging, or relating to all of any portion of the Real Property (the "Rights"); TOGETHER WITH all right, title and interest of Mortgagor, now owned or hereafter acquired, in and to any land lying in any public and private streets and roads adjoining the Real Property and in and to any sidewalks, alleys, or strips of land adjacent to or used in connection with the Real Property (the "Roadways"); TOGETHER WITH all leasehold estate, right, title and interest of the Mortgagor, now owned or hereafter acquired, in and to all leases or subleases of all or any portion of the Real Property (the "Leasehold"); TOGETHER WITH all rents, issues, profits, royalties, income and other money or benefits now or hereafter derived from the Real Property (the 'Rents"); and TOGETHER WITH all the estate, right, title and interest of the Mortgagor, now owned or hereafter acquired, in or with respect to all payments, condemnation awards, insurance proceeds, and other sums of money and proceeds including interest thereon which shall be due the Mortgagor as a result of any casualty affecting all or any portion of the Real Property, any condemnation or other exercise of the right of eminent domain affecting all or any portion of the ]teal Property hereby conveyed, any alteration of the grade of any public street affecting all or any portion of the Real Property, or any other injury to or diminution in value of all of any portion of the Real Property (the "Proceeds"); WHEREIN all of the Real Property, the Fixtures, the Improvements, the Personalty, the Plans and Approvals, the Rights, the Roadways, the Leasehold, the Rents and the Proceeds are hereafter collectively referred to in this Mortgage as the "Property", and are hereby, CONVEYED IN TRUST for the benefit of the Mortgagee, its successors and assigns, and to secure the Mortgagee in connection with all of the following: (A) The repayment in full of that certain loan in the face amount of TWO MILLION AND NO1100THS DOLLARS ($2,000,000.00), (the "Loan"); (B) That certain Mortgage Note in the face amount of the Loan, of even date herewith, evidencing the Loan and executed by Mortgagor and guaranteed by Frank Tramer, Spencer Ault and Donald Harding (individually or collectively referred to as the "Guarantors") for the benefit of Mortgagee, together with any and all amendments, modifications, accords, allonges, substitutions, bifurcations, consolidations or restructurings thereto (collectively referred to hereafter as the 'Note"); (C) The repayment of all indebtedness, and all performance, promises and covenants set forth in the Note and in this Mortgage; TRUST BK 1906PG3643 (D) The repayment of any and all sums of money that the Mortgagee may now or hereafter advance, loan, readvance, fund or disburse to or for the benefit of the Property or Mortgagor, regardless of whether any such advance, loan, readvance, funding or disbursement shall be: (i) pursuant to the provisions of the Note, or this Mortgage, or otherwise, (ii) evidenced by any document or agreement, (iii) matured or unmatured, or (iv) by mistake or otherwise, together with interest thereon at the interest rate set forth in the Note; (E) The payment or repayment of all costs, expenses, charges, commissions of trustees, interest, premiums, attorneys fees, and other commissions, fees, charges and obligations direct or indirect, absolute or contingent, now or hereafter due: (i) pursuant to any of the loan documents executed by Mortgagor in favor of Mortgagee including but not limited to the Note, this Mortgage, the Commitment Letter dated April 7, 2005, from the Mortgagee and executed by the Mortgagor, and any and all amendments thereto (the "Commitment Letter"), the Hazardous Waste Indemnity Agreement in favor of Mortgagee (the "Indemnity Agreement"), the Unconditional Guaranty Agreement of even date herewith (the "Unconditional Guaranty") executed by the Guarantors, and each and every one of such other agreements and loan documents executed by Mortgagor and/or Guarantors (as the case may be) in connection with the Loan, and any and all amendments or modifications thereto, (collectively hereafter referred to as the "Loan Documents"); and (ii) pursuant to applicable law, statute or rules of equity, (F) All renewals, curtailments, and extensions of the Note (and this Mortgage), as well as any note and Mortgage given in replacement of the Note and Mortgage (unlimited renewals, curtailments, extensions and replacements being expressly permitted in the sole and absolute discretion of the Mortgagee); (G) The repayment of all funds disbursed by Mortgagee in connection with the Loan to any other party whatsoever, for the direct or indirect benefit of Mortgagor; (H) All allonges, bifurcations, amendments, modifications, replacements, supplements or substitutions to the Note; and (I) The disbursement of funds by Mortgagee in accordance with any of the Loan Documents, deemed necessary or desirable by Mortgagee to: (i) preserve and protect the Property, (ii) complete construction of Improvements to the Real Property, and (iii) compel the Mortgagor to act in accordance with its obligations under any of the Loan Documents. ALL MATTERS SET FORTH IN PARAGRAPHS (A) THROUGH (I) ABOVE ARE HEREBY SECURED BY THIS MORTGAGE. ALL AMOUNTS OUTSTANDING IN CONNECTION WITH THE LOAN, TOGETHER WITH INTEREST THEREON, AS WELL AS THOSE MATTERS AND ITEMS PROVIDED BY THE CODE OF PENNSYLVANIA, AS AMENDED, SHALL CONTINUE TO HAVE PRIORITY UNTIL PAID OR CURTAILED. THE MATURITY DATE UNDER THIS MORTGAGE IS MAY _?, 2007. The Mortgagor further covenants and agrees as follows: 1. The Mortgagor will pay or cause to be paid, when due and payable, all principal, interest, late cha re s, expenses, and other amounts due the Mortgagee under the Loan, the Note and this Mortgage. 2. The Mortgagor will pay, when due and payable, all real estate taxes, assessments, general and special taxes, land use taxes and deferred taxes (collectively the "Taxes") in connection with the Property. At the request of Mortgagee at any time, or from time-to-time, Mortgagor agrees to escrow with the Mortgagee an amount equal to two months of the annual amount of the Taxes coning due, plus an additional fifteen (15) percent more of the taxes and subsequently escrow with the Mortgagee one-twelfth (1/12) of the annual amount of the taxes coming due, each successive month thereafter. All amounts deposited in to escrow shall bear no interest and may be commingled with other funds held by the Mortgagee- 3. All escrows held by the Mortgagee may, at Mortgagee's sole option, be applied to the payment of any fees or expenses, late charges, interest, or principal, or other amounts due and payable under the Note or this Mortgage. TRUST 3 BK ! 906PG3644 ,In addition, the Mortgagor will pay or cause to be paid, when due and payable, any indebtedness to any other person which may give rise to or create a mechanic's lien, a materialmen's lien or other lien, charge, judgment or encumbrance upon all or any portion of the Property. However, nothing herein shall be construed as authorizing Mortgagor to further encumber the Property without the express written consent of Mortgagee. 4. The Mortgagor will obtain and maintain on the Property fire and extended coverage insurance, and such other types of insurance as the Mortgagee, in its sole discretion, may require from time to time. The Mortgagor will also keep the Property insured for the benefit of the Mortgagee against loss from such other hazards or casualties, and in such amounts as may be specified by the Mortgagee in its sole discretion. Specifically: (a) The Mortgagor shall keep the Property insured for the benefit of the Mortgagee and the Mortgagor as their respective interests may appear, against loss or damage from abatement of rental income or business interruption (for periods of up to and including twelve (12) consecutive months in duration, and consecutive renewals thereof) resulting from (i) fire, lighting, windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles, smoke, vandalism, malicious mischief, water damage and all other conventional hazards, (ii) flood (if and when any or all of the Property is located in an area which is now or hereafter designated by the Secretary of Housing and Urban Development, or any successor government agency, as having flood and mudslide hazards, and for which flood insurance is made available under the National Flood Insurance Act of 1486, or any other law, and (iii) when and to the extent required by the Mortgagee, any other risks or hazards which now or hereafter are customarily insured against by persons operating properties with similar characteristics to the Property, in such amounts and for such periods as the Mortgagee may from time-to- time require and approve. In no event shall the insurance coverage be less than the face amount of the Note, or the amount necessary to comply with any coinsurance percentage stipulated in the policy or policies, whichever is greater. The policy shall contain a one hundred percent (100%) "replacement cost" feature with respect to all buildings, structures and improvements located on the Property, and Mortgagor shall pay promptly, when due, all premiums for such insurance. (b) During the period of any construction, repair, restoration or replacement of the Property, the Mortgagor shall obtain and keep in effect for the benefit of the Mortgagor and the Mortgagee, as their respective interests may appear, a standard builder's risk policy with extended coverage at least in the amount of one hundred percent (100%) of the replacement cost of the Property. (c) The Mortgagor shall carry and maintain such liability and indemnity insurance (including, by way of example rather than of limitation, coverage for water damage and so-called assumed and contractual liability), in form and amounts which are reasonably satisfactory to the Mortgagee and which shall name the Mortgagee as an additional insured (which insurance shall in no event be in amounts less than $2,000,000.00 for aggregate personal injury or accident; $1,000,000.00 for any one accident or personal injury; and at least the amount of the Loan as the amount for property damage. (d) During the period of any construction, repair, restoration or replacement of improvements on the Property, the Mortgagor shall cause all contractors and subcontractors (including the Mortgagor, if the Mortgagor acts as a contractor) to obtain and keep in effect workmen's compensation and disability insurance covering, to the fullest extent required by applicable law, all employees of each contractor and subcontractor. (e) The original executed certificates of all such policies and renewals thereof, together with receipts evidencing payment of the current premiums thereof, shall be delivered to and held by the Mortgagee. Each such policy shall remain in effect for so long as the Loan remains outstanding, and coverage cannot be terminated. No substitutions of coverage are allowed except upon thirty (30) days prior written notice to the Mortgagee. All policies shall contain a standard non-contributing mortgagee clause (in favor of the Mortgagee and entitling it to collect any and all of the proceeds payable under all such insurance), as well as a standard waiver of subrogation endorsement all in such form as is acceptable to the Mortgagee. (f) All such insurance and substitutions referenced herein shall be written in form, amounts and TRUST BK1906PG3645 r ' by such companies as shall be satisfactory to the Mortgagee in its sole discretion. All insurance proceeds under such insurance policies shall be payable to the Mortgagee and shall be used, to replace or restore the Property, in part or in full, to a condition satisfactory to the Mortgagee, wherein the Mortgagor agrees to cooperate with the Mortgagee in its application of insurance proceeds and the Mortgagor will promptly repair, restore, replace or rebuild any part of the Property damaged, whether or not any available insurance proceeds are sufficient for such purpose; provided however, that the Mortgagee shall pay over or make available to the Mortgagor only that amount of insurance proceeds received by it, less the application of said funds for any other purpose set forth herein.' Nothing herein shall relieve the Mortgagor from its obligations hereunder, and in the event the Property cannot be replaced or restored to its former value as reasonably determined by the Mortgagee from an appraisal, then the Mortgagee may in the alternative, use the proceeds in any one or more of the following ways: (i) To the payment of amounts due under the Note and this Mortgage, whether or not then due and payable, first to fees or expenses due the Mortgagee, if any, then to late charges, if any, then to accrued interest, if any, and then to principal outstanding; (ii) To pre-pay the principal balance due under the Note, in part or in full, with any portion of the proceeds; (iii) To fulfill any of the Mortgagor's covenants and agreements contained in the Note and this Mortgage; and/or (iv) To be released to the Mortgagor. (g) The Mortgagor hereby authorizes and empowers the Mortgagee to act in the place and stead of Mortgagor, and hereby irrevocably makes, constitutes and appoints the Mortgagee to act as attorney in fact for the Mortgagor under a special power of attorney coupled with an interest, with the express power, authority and right to settle, adjust, compromise, receive, endorse and transfer payment for all claims for loss, damage or destruction of all or any portion of the Property under all policies of insurance relating to the Property, for amounts deemed reasonable by the Mortgagee, and this special power of attorney shall not terminate upon the disability of the Mortgagor as provided for in the Code of Pennsylvania, as amended. Provided, Mortgagee shall not exercise such power so long as Mortgagor is not in default beyond any applicable cure period. (h) The Mortgagor will deliver to the Mortgagee the original executed certificates, or a duplicate original of each insurance policy. No less than thirty (30) days before the expiration date of any insurance policy required of the Mortgagor pursuant to this paragraph, the Mortgagor will furnish to the Mortgagee a certificate of renewal of such insurance policy along with a paid receipt. In the event the Mortgagor fails or refuses to provide, maintain, or deliver and furnish to the Mortgagee the renewal certificates, or the policies of insurance required by this paragraph and/or the paid receipt, the Mortgagee may but is not required to obtain and maintain, at the expense of the Mortgagor, such insurance or lenders single-interest insurance as the Mortgagee may deem appropriate and all sums advanced or expended shall be deemed secured by this Mortgage and repayable to Mortgagee upon demand. The Mortgagee shall have the right, exercisable at any time for so long as any portion of the Loan is outstanding, to require the Mortgagor to deposit with the Mortgagee such monthly or yearly amount of funds as the Mortgagee, in its sole discretion, shall deem necessary to enable the Mortgagee to pay, when due and payable, the premiums on the policies of insurance which shall be required of the Mortgagor pursuant to this paragraph. All such amounts so deposited with the Mortgagee shall bear no interest and may be commingled with any other funds held by the Mortgagee. In the event of a Trustee's sale of all or any part of the Property by the Trustee under this Mortgage, the Mortgagee shall succeed to all rights of the'Mortgagor (including the right to unearned premiums) in and to all policies of insurance maintained by the Mortgagor with respect to the Property. (i) Nothing in this Mortgage shall be construed to impose any obligation upon either the Mortgagee or the Trustee to: (i) procure insurance on the Property, (ii) to expend any sums of money, to protect or serve the Property, or (iii) to take any other discretionary action under this Mortgage. TRUST BK 1906PG3646 5. The Mortgagee shall not be held liable whatsoever, for any action or non-action resulting in: (a) the refusal or failure to obtain any insurance, expend any sums of money or take any such discretionary action, (b) for any delay in the performance of any of the foregoing acts, (c) for the existence or nonexistence of such insurance, or the form or legal sufficiency thereof, (d) the solvency of any insurer in the payment of losses, or (e) negotiating, compromising, resolving, settling or agreeing with the insurance company in connection with any policy claim pertaining to the Mortgagor or the Property. 6. If the Mortgagor shall fail to make any payment or perform any act required to be made or performed under this Mortgage, the Mortgagee, without notice to or demand upon the Mortgagor and without waiving or releasing any obligation or default under this Mortgage, at any time thereafter may (but shall be under no obligation to) make such payment or perform such act for the account and at the expense of the Mortgagor and may enter upon the Property for such purposes and take all such action thereon or with respect thereto as the Mortgagee in its sole discretion may deem necessary or appropriate. The Mortgagor immediately and without demand shall reimburse the Mortgagee for all payments, costs and expenses incurred, by the Mortgagee in connection with the performance of any such act, together with interest thereon from the date of any such payment to the date of reimbursement by the Mortgagor at the "default rate" of interest as specified in the Note during such period, and all such payments, costs, and expenses, together with all accrued interest thereon, shall be secured hereby as a further charge and lien upon the Property. 7. The Mortgagor at its expense will cause this Mortgage to be recorded and filed in the proper public offices to perfect Mortgagee's interests and will pay all the costs of such recording and filing. The Mortgagor will comply with all laws necessary to establish, preserve and protect this Mortgage as a valid second mortgage lien on the Property and to establish, preserve and protect the rights of the Mortgagee hereunder. The Mortgagor upon demand will execute and deliver (and pay the costs of preparation and recording thereof) to the Mortgagee from time-to-time any further written assurances, documents, instruments and agreements, including, but not limited to, mortgages, security agreements, modifications to this Mortgage, financing statements, assignments, notes and renewals and substitutions thereto that may be necessary to reaffirm, to correct, modify and to perfect the lien of this Mortgage upon all or any part of the Property. 8. Without the prior written consent of the Mortgagee, the Mortgagor will not create, permit or suffer to exist on or with respect to the Property any lien or encumbrance, whether inferior or superior in right to the lien and rights created by this Mortgage, and by any other Loan Documents. The Mortgagor shall Comply with all other obligations and agreements that Mortgagor enters into in connection with the Property, and will promptly furnish to the Mortgagee any information requested by the Mortgagee concerning such performance and compliance by the Mortgagor. 9. The Mortgagor will maintain the Property in good condition and repair, will not commit any waste or suffer any waste to occur with respect to the Property, and will not create any nuisance or suffer or permit any nuisance to exist on or with respect to the Property or commit, suffer or permit any act to be done in or upon the Property in violation of any law, ordinance, planned unit development covenant or regulation. The Mortgagor will comply with, or cause to be complied with, all statutes, ordinances and requirements of any public utility relating to sewage disposal, water supplies, electrical service, gas service and all other utility services for the Property. 10. The Mortgagor shall not initiate, join in, or consent to any change in any zoning ordinance, zoning proffer or other public or private restriction or condition limiting or defining the uses of all or any portion of the Property without the prior written consent of the Mortgagee. 11. The Mortgagor will notify the Mortgagee immediately in writing of any condemnation proceedings affecting the Property. At Mortgagee's election, all condemnation awards subsequently to be paid to the Mortgagor in connection with the Property shall be paid over to the Mortgagee to be applied toward repayment of the Loan. 12. The Mortgagor agrees, represents, certifies and warrants as follows: (a) The Mortgagor and any other person liable for the repayment of the indebtedness secured hereby TRUST BK ! 906PG3647 shall be personally liable for all costs and expenses incurred in the enforcement of this Mortgage, including reasonable attorneys fees, even if such costs and expenses exceed the amount of the Loan secured by this Mortgage, subject to the terms and conditions of that certain absolute guaranty agreement of even date herewith. All covenants, representations, certifications, and warranties set forth herein, shall survive any transfer of ownership or title, any foreclosure of the Property, and any Deed in Lieu of Foreclosure or any other transaction. (b) Any amounts disbursed by the Mortgagee pursuant to the provisions of the Loan Documents shall be added to, and shall be deemed a part of, the indebtedness secured by this Mortgage, shall be secured in the same manner as the Note is secured, shall bear interest from the date of the disbursement thereof to the date of repayment at the "default rate" of interest as defined under the Note during such period, and all of which shall be repaid to Mortgagee by Mortgagor immediately, without demand. 13. The Mortgagor shall be in default under this Mortgage if the Mortgagor breaches any of the provisions herein, or if one or more of the following events (hereinafter collectively referred to as the "Events of Default") shall occur for any reason whatsoever, whether such occurrence shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree, or order of any court or any order, rule or regulation of any administrative body, or otherwise: (a) If there has been any non-payment of any monthly payments due on the fast day of the month as required pursuant to the Note, after the expiration of any applicable grace period, or any non-payment of any installment or payment of principal, interest and/or other expenses or costs due under the Note or this Mortgage, when and as the same shall become due and payable; (b) If there shall be a failure by the Mortgagor to timely make any payment of the taxes or insurance premiums with respect to any obligations of the Mortgagor to any person, entity or government under any assessment, agreement, policy, or instrument pursuant to which any such indebtedness arose, or may have been issued, created, assumed, or guaranteed by the Mortgagor in connection with the Property, and which continues for more than any applicable period of grace; (c) If there shall be a failure to perform any non-monetary provi or rirement, after the expiration of a period of thirty (30) days after written notice of the failure has emvA?Zvd to the Mortgagor and the Guarantors, without the default having been cured: (i) under the Note, or (ii) under any covenant, term or condition of this Mortgage, or under any of the other Loan documents executed in connection herewith; (d) if any representation, warranty or any other statement of fact, contained in any of the Loan Documents or in any writing, certificate, report statement or application famished to the Mortgagee at any time pursuant to or in connection with the Loan, this Mortgage, the Note, or the Property shall prove to have been false, misleading or incomplete in any material respect at the time when such representation, warranty or statement of fact was made or furnished to the Mortgagee; (e) If the Mortgagor or any obligor on the Note shall admit orally or in writing an inability to pay debts generally as they become due; make an assignment for the benefit of creditors; or commence a proceeding for the appointment of a receiver, trustee, liquidator, or conservator for Mortgagor or any Obligor, or for any part of the Property; (f) If the Mortgagor or any obligor on the Note shall file a petition under any chapter of the United States Bankruptcy Code, in bankruptcy or a petition to take advantage of any insolvency act or any other statute, federal law or state law relating to bankruptcy, insolvency, homestead relief, or the relief of debtors; or obtain an "order for relief" under any bankruptcy court; or a court of competent jurisdiction shall assume custody or control of the Mortgagor, any obligor on the Note or of the whole or any substantial part of their assets, or if there is commenced against the Mortgagor or any obligor on the Note, an involuntary petition in bankruptcy and such proceeding or petition remains undismissed for a period of seventy-five (75) days, or if the TRUST 7 SKI906P63648 Mortgagor or any obligor on the Note by any act indicates his consent to, approval of or acquiescence in any such proceeding or petition; (g) If any judgment against the Mortgagor or any obligor on the Note or any post judgment attachment or execution against any of the property of the Mortgagor or any obligor on the Note remains unpaid, unstayed, or undismissed after any appeal periods have expired for a period of more than thirty (30) days; (h) If, in the opinion of the Mortgagee in its sole discretion, any substantial portion of the Property shall be lost, stolen, abandoned damaged or destroyed other than in the ordinary course of business, and is not covered under the insurance policies required to be maintained pursuant to the Mortgage; (i) if Mortgagor fails to keep the Property insured as required hereunder; or 6) If Mortgagor fails to timely perform or complete any of its obligations, duties, promises, warranties, payments, responsibilities and promises set forth in the Note or this Mortgage, after passage of the applicable grace period. 14. Upon the occurrence of any one of the Events of Default, and the passage of any applicable grace period contained in the Loan Documents, without the default having been cured, the Mortgagee may, but is under no obligation to so act, do any one or more of the following: (a) The Mortgagee may accelerate the Note, and declare all sums due under the Note and this Mortgage to be immediately due and payable, and such sums shall thereupon become due and payable without presentment, demand, protest, notice of dishonor or any other notice of any kind, all of which the Mortgagor hereby expressly waives; (b) Regardless of whether the Mortgagee accelerates the maturity of the Note and all sums due hereunder, the Mortgagee, may enter upon and take possession of the Property without the appointment of a receiver or an application therefor, and without any advance notice to the Mortgagor, and may perform any and all acts, including, without limitation, the employment of a managing agent for the Property and the leasing of the Property, which the Mortgagee deems necessary or proper to conserve or operate the Property. The Mortgagee may collect and receive the rents, issues, and profits from the Property and may apply the same: (i) to pay all ongoing costs, charges, expenses, fees, commissions and insurance premiums incurred or suffered by the Mortgagee in connection with such action and (ii) to pay all ongoing operating costs, trade creditors, management fees, repairs or maintenance, and (iii) any assessments or other charge which may have priority in lien rights over the lien of this Mortgage, and (iv) to the prepayment of principal due under the Note and this Mortgage, whether or not immediately due and payable, and (v) to the payment of any monthly installments past due, or that are coming due under the Note as the Mortgagee in its sole discretion may deem appropriate. The Mortgagee shall apply such proceeds in such order or priority as Mortgagee shall determine in its sole judgment, and shall apply only such rents, issues and profits as shall actually be received; (c) Upon taking possession of the Property, the Mortgagee at the expense of the Mortgagor and the Property, may from time-to-time: (i) take such steps and expend such sums as are reasonably necessary to preserve and protect the Property, including, but not limited to completion of any construction of Improvements, and (ii) make all necessary and proper repairs, renewals, replacements and useful or required alterations, improvements and changes to the Property and/or specifically to the Improvements as, in the Mortgagee's sole judgment and discretion, may be reasonably necessary or desirable. (d) Cure any Event of Default at any time, and from time-to-time without releasing the Mortgagor from any obligation hereunder; and without waiving the default. (e) Commence and maintain one or more actions at law or in equity or by any other appropriate TRUST BK 1 9001 G3649 remedy: (i) to protect and enforce the Mortgagee's rights, whether for the specific performance of any covenant or agreement herein contained (which covenants and agreements the Mortgagor agrees shall be specifically enforceable by injunctive relief or other appropriate equitable remedy), or (ii) to collect any sum then due hereunder, or (iii) to aid the execution of any power herein granted, or (iv) to foreclose this Mortgage and/or to sell the Property, without regard to whether or not any sum secured by this Mortgage is then due and payable and without prejudice to the right of the Mortgagee thereafter to pursue and enforce any other appropriate remedy against the Mortgagor, whether such remedy is provided for hereunder or by any applicable law. 15. In addition to all other rights and privileges Mortgagee enjoy hereunder, Mortgagor, upon the occurrence of an Event of Default, and the passage of any applicable grace period contained in the Loan Documents, without the default having been cured, hereby: (a) Authorizes and empowers the Trustee to take possession of any or all of the Property, to foreclose under the Mortgage, including any amendments thereof or additions thereto and to sell any or all of the Property or any estate or interest therein in accordance with the terms of this Mortgage, and in accordance with the legal requirements governing foreclosure under mortgages, security trusts and/or security agreements, and/or (b) Consents to the passing of a decree for the sale of any or all of the Property or any estate or interest therein by any court having jurisdiction over the sale of the Property. 16. If any or all of the Property or any estate or interest therein is to be sold under the provisions of this Mortgage, by foreclosure of this Mortgage or otherwise, it may be sold at public or private auction, with such postponement of any such sale as the Mortgagee may deem appropriate and without regard to any right of the Mortgagor or any other person to the marshaling of assets. Any such sale or sales shall be held at such time or times and at such place or places, and shall be made upon such terms and conditions, as the Mortgagee may deem appropriate. The Mortgagee may bid and become the purchaser at any such sale, and shall, upon presentation of the Note or a true copy thereof be credited for the unpaid balance due under the Note and any interest accrued and unpaid thereon, or such portion of such unpaid balance or interest as the Mortgagee may specify, against the price bid by the Mortgagee. The terms of sale being complied with, the Mortgagee may convey the Property "as is" "where is", free of and discharged from all estate, right, title or interest of the Mortgagor at law or in equity. Advertisement required for a Mortgagee foreclosure sale: Once a week for (2) successive weeks. No other advertisement shall be necessary. 17. If the Mortgagee shall postpone or continue the sale of all or any portion of the Property at any time or from time-to-time, the Mortgagee shall advertise the postponed sale in the same manner provided in this Mortgage for the advertisement of the original sale. 18. All of the provisions set forth in the Code of Pennsylvania, as amended (the "Pennsylvania Code"), as they exist as of the date of this Mortgage, are expressly incorporated herein by reference as if fully set forth and stated in the body of this Mortgage, and the following complete provisions of the Pennsylvania Code, are expressly incorporated herein by reference to them in "short form": Exemptions Waived; Subject to all upon default; Deferred Purchase Money; Renewal, Extension or Reinstatement permitted; Insurance Required; Substitution of Trustee Permitted - for any reason and without prior notice to the Mortgagor; Bidder's deposit of not more than twenty percent (20%) of the sale price maybe required. 19. No Purchaser of all or any portion of the Property shall be required to see to the proper application of the loan proceeds. If any obligations and liabilities of the Mortgagor or any obligor on the Note to the Mortgagee shall constitute contingent obligations or liabilities as of the date of any sale under this Mortgage, the Mortgagee shall be TRUST S BK 1906PG30 -entitled to receive from the proceeds of any such sale, before the payment of any residue to the persons entitled to receive it, a sum equal to the maximum amount of such contingent liabilities and obligations of the Mortgagor and the obligors on the Note, and the Mortgagee shall be entitled to hold or apply such sum, without the payment of interest thereon, to or for the account of the Mortgagor until such time as all such contingent obligations and liabilities either shall become absolute and unconditional obligations and liabilities of the Mortgagor to the Mortgagee or shall be eliminated as obligations and liabilities to the Mortgagee. The Mortgagee shall be entitled to offset immediately against the stun so held and set aside from the proceeds of any such sale any such contingent obligations and liabilities which become absolute and unconditional and, after the elimination of all contingencies and conditions, shall pay over the excess, if any, of such sum to the person or persons entitled to receive it. 20. (a) The Mortgagee shall have, and is hereby granted by the Mortgagor with a warranty of further assurances, the irrevocable power to appoint a substitute trustee or trustees hereunder and to remove the Trustee, or any of them from time to time without notice and without specifying any reason therefor, by filing for record a deed of appointment in the office in which this Mortgage is recorded. Such power of removal and appointment may be exercised as often and whenever the Mortgagee deems it advisable, and the exercise of such power, no matter how often, shall not result in an exhaustion of such power. Upon the recordation of each such deed of appointment or removal, each Trustee so appointed shall become fully vested with identically the same title and estate in and to the Property and with all of the identical rights, powers, trusts and duties of his predecessor or predecessors in the Property, as if originally named as the Trustee hereunder. Whenever, in this Mortgage, reference is made to the Trustee, it shall be construed to mean the Trustee or trustees for the time being, whether the original or any successor Trustee. All title, estate, rights, powers, trusts and duties hereunder given, appertaining to or vesting into the Trustee shall be in each Trustee, so that any action hereunder or purported to be hereunder of either one of the original or any successor trustees shall for all purposes be considered to be, and shall be as effective as, the action of both trustees. The requirement that any trustee must post bond or qualify for bond to act in the capacity of trustee, is hereby expressly waived. (b) If a sale of the Property and the Mortgagor's interest therein: (i) occurs by foreclosure, then the proceeds of such sale, together with any other sum then held as security hereunder or due under any of the provisions hereof in connection with the Property, shall be applied as set forth and required in the Virginia Code, after paying all expenses of sale, including reasonable attorneys fees and a commission to the Trustee equal to five percent (5%) of the gross proceeds of such sale, or (ii) occurs by judicial sale or otherwise, then the proceeds of such sale, together with any other sum then held as security hereunder or due under any of the provisions hereof in connection with the Property, shall be applied first, to all expenses of sale, including reasonable attorneys fees, second, to pay the Trustee a commission equal to five percent (5%) of the gross proceeds of such sale, third, to all Taxes which the Trustee or the Mortgagee deem advisable or expedient to pay, and fourth to all outstanding indebtedness due the Mortgagee, together with interest thereon, as herein provided, to the payment of the cumulative and aggregate indebtedness secured hereby, paying over the surplus, if any. The Trustee is under no duty to evict any tenants or to obtain possession of the Property for any new purchaser. 21. Each power, right and remedy of the Mortgagee under this Mortgage shall be separate, distinct and cumulative of the other powers, rights, and remedies of the Mortgagee under this Mortgage, the Note, and applicable law. No act of the Mortgagee shall be construed as an election of remedies to prevent the Mortgagee from exercising any other right or remedy of the Mortgagee under this Mortgage, the Note, or applicable law. 22. Any delay or failure by the Mortgagee to insist upon the strict performance by the Mortgagor of arty of the terms and conditions of this Mortgage or the Note, at any time or from time-to-time, shall not constitute: (i) a waiver of any of Mortgagee's rights, privileges, or remedies hereunder, or (ii) a waiver of the terms and conditions of this Mortgage, and the Mortgagee, notwithstanding any such delay or failure, shall have the right thereafter to insist upon the strict performance by the Mortgagor of all of the terms and conditions of this Mortgage to be performed by the Mortgagor. The Mortgagee may take any one or more of the following acts without notice to the Mortgagor or any obligor on the Note, without any further consent of the Mortgagor or any obligor on the Note, without adversely affecting Mortgagee's rights hereunder or under any of the Loan Documents, without discharging or releasing the Mortgagor, any TRUST 10 8K1°006PG365I Guarantor or any other person from liability under the Loan Documents and without impairing or affecting the validity and enforceability of this Mortgage: (a) The Mortgagee may fail or refuse to comply with any request of the Mortgagor or any obligor on the Note to take action to foreclose this Mortgage or otherwise to enforce any of the provisions of the Note or this Mortgage; (b) The Mortgagee may release, with or without consideration, all or any portion of the Property from the lien of this Mortgage or any other collateral securing the payment of any of the indebtedness secured by the lien of this Mortgage; (c) The Mortgagee may release, with or without consideration, any obligor on the Note or this Mortgage; or any Guarantor under the Guaranty; (d) The Mortgagee may enter into any agreement or stipulation to extend the maturity of the Note, modify the terms of the Note or this Mortgage, or reinstate the indebtedness evidenced by the Note in accordance either with the schedule of maturities as of the time of any acceleration of the Note or with such new schedule of maturities as may be agreed upon. If the Mortgagor is not the maker of the Note, the Mortgagor consents to, and waives notice of, all loans and/or advances of funds to the maker of the Note and agrees that the Mortgagee, without notice to the Mortgagor and without any further consent of the Mortgagor, may grant extensions of time and other indulgences to the maker of the Note and any other obligor on the Note, including, without limitation, the maturity date and interest rate of the Note, and may renew the Note, in whole or in part, without releasing any obligor under the Note, or any of the Guarantors under the Note or Guaranty. 23. If the Trustee and/or the Mortgagee: (i) shall be made parties to any action, suit, or other legal or governmental proceeding relating to or affecting the Property, the title to the Property, and/or the validity and/or priority of the lien of this Mortgage, (ii) in their sole discretion shall consider it necessary or advisable to commence or intervene in any such action, suit, or other legal or governmental proceeding, or (iii) shall employ attorneys to devise and represent them in the enforcement of any of the provisions of the Note and/or this Mortgage, then in any and all such events, the Mortgagor shall reimburse the Trustee and/or the Mortgagee, immediately and without demand, for all reasonable attorney's fees and court costs incurred in any and all such events, together with interest thereon from the date of expenditure to the date of payment at the "default rate" of interest as set forth in the Note during such period and all such costs, charges and expenses together with all accrued interest thereon shall be secured hereby as a further charge and lien upon the Property. The Trustee shall not be required to see that this Mortgage is recorded and shall not be liable for the default or misconduct of any agent or attorney appointed by it or for any other act or failure or refusal to act in connection with this Trust, except wilful misconduct. The Trustee may act upon any instrument believed in good faith to be genuine and to be signed by the proper party or.parties and shall not be liable for any action taken or suffered by it in reliance thereon. The Trustee in its discretion may consult counsel from time-to-time in connection with this Mortgage at the sole expense of Mortgagor and shall not be liable for any action taken by it in accordance with the advice of such counsel. 24. The Mortgagor will permit the Mortgagee and its officers, employees, agents and independent contractors to make entry upon and inspections of the Property without prior notice to the Mortgagor and without comrnitting any trespass. 25. All amounts due under the Note and this Mortgage shall become immediately due and payable, at the option of the Mortgagee, if there should be any sale, conveyance, transfer, encumbrance, assignment, or other change in the legal or beneficial ownership of all, or any portion of the Mortgagor (if Mortgagor is not a natural person) or the Property without the prior written consent of the Mortgagee, regardless whether any such sale, conveyance, transfer, encumbrance, assignment or any other change in the legal or beneficial ownership of all or any portion of the Mortgagor or Property adversely affects the interests of Mortgagee. NOTICE - THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL OR THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY TRUST II SKi906PG3652 28. Any person executing this Mortgage in the capacity of an agent, officer, employee or partner of the Mortgagor represents and warrants that he has the authority to execute this Mortgage on behalf of the Mortgagor. If the Mortgagor is a partnership or company, the Mortgagor and each individual executing this Mortgage on its behalf represent and warrant that the entity was duly formed and organized and validly exists under the laws of the state in which it was created and that the execution of this Mortgage has been authorized by the entity and will not violate any provision of the partnership or operating agreement. If the Mortgagor is a corporation, the Mortgagor and each individual executing this Mortgage on behalf of the corporation represent and warrant that the Mortgagor was duly incorporated and organized, and validly exists under the laws of the state in which it was created and that the execution of this Mortgage has been authorized by the Mortgagor's Board of Directors and will not violate its charter or bylaws. All persons executing this Mortgage in the capacity of agents, officers, employees or partners of the Mortgagor, jointly and severally agree, in their capacity as individuals, to indemnify the Mortgagee for any violation of the warranties and representations of this paragraph. If the Mortgagor consists of more then one person, each person who is a Mortgagor shall be jointly and severally liable under all obligations, indebtedness and liabilities of the Mortgagor under this Mortgage. 29. The Mortgagor shall notify the Mortgagee in the manner prescribed below of (i) the institution of any suit, action or other legal proceeding affecting or relating to all or any portion of the Property, (ii) the institution of any suit, action or other legal proceeding against the Mortgagor or any obligor on the Note, (iii) any actual or threatened taking of, or damage to, all or any portion of the Property by condemnation or other exercise of the power of eminent domain, (iv) any damage to, destruction of, or loss of all or any portion of the Property, and (v) any other matter, event or occurrence which constitutes any of the Events of Default or which, upon the passage of time or the giving of notice or both, would constitute an Event of Default. Such notice shall be given to the Mortgagee within five (5) days after the date on which the Mortgagor shall first receive notice of any matter, event or occurrence with respect to which notice must be given under this paragraph. 30. Any notice which may be given by a party to this Mortgage must be in writing and shall be deemed to have been given by the sending party and received by the receiving party when any such notice shall have been hand- delivered to the receiving party at the address designated herein for such receiving party, or when any such notice shall have been posted in the certified mail of the United States, return receipt requested and postage prepaid, and addressed to the receiving party at the address designated herein for such receiving party. The Mortgagor hereby designates as its address for the purpose of receiving any such notice, the address stated in this Mortgage. Any party may change its designated address stated herein, at any time, by giving notice of such change to the other parties to this Mortgage in the manner set forth in this paragraph. 31. The covenants, terms and conditions of this Mortgage shall be binding upon, and inure to the benefit of, the parties to this Mortgage and their respective heirs, personal representatives, successors and assigns and successors in title. In this Mortgage, the singular number shall include the plural and the plural number shall include the singular. The use of any gender in this Mortgage shall be applicable to all genders. The words "person" and "persons" in his Mortgage mean and include all natural persons, corporations, partnerships, companies, unincorporated associations, governmental agencies, trusts, guarantors, owners, estates and all other legal entities. 32. Time is of the essence with respect to each and every covenant, agreement and obligation of the Mortgagor under this Mortgage. 33. If any provision of this Mortgage shall be or become invalid, illegal or unenforceable, the validity, legality and enforceability of the other provisions of this Mortgage shall in no way be affected thereby. 34. Mortgagor hereby stipulates and warrants that the Loan secured hereby is a commercial loan, and that the proceeds of the Loan will be used for investment or commercial purposes. 35. This "Mortgage" shall mean this MORTGAGE and all supplements hereto and amendments hereof. 36. The "Mortgagor" shall mean the persons hereinabove named as such, its/their successors and assigns, successors in title, and owners of any or all of the Property. TRUST 13 09 19 0oPG30" 5 4 37. The Property being located in the Commonwealth of Pennsylvania, this Mortgage and the rights and indebtedness secured hereby shall, without regard to the place of payment of any sum paid hereunder, be given effect and construed by application of the law of the Commonwealth of Pennsylvania. 38. IN ADDITION TO ANY OTHER WAIVERS CONTAINED IN THIS MORTGAGE, THE MORTGAGOR HEREBY REPRESENTS, WARRANTS AND CONSENTS TO AN EXPRESS RELEASE, RELINQUISHMENT AND UNCONDITIONAL,WAIVER OF: (1) ANY AND ALL RIGHTS TO RECEIVE AN ACCOUNTING OF ANY SURPLUS COLLATERAL, (II) THE RIGHT TO A TRIAL BY JURY, AND (III) ANY AND ALL CLAIMS OR THEORIES OF LIABILITY AGAINST THE MORTGAGEE IN FURTHERANCE OF ITS REMEDIES UNDER THIS MORTGAGE WITH RESPECT TO THE PROPERTY. THE MORTGAGOR REPRESENTS AND WARRANTS THAT LEGAL COUNSEL OF CHOICE HAS BEEN AVAILABLE OR RETAINED TO REVIEW AND INTERPRET THIS MORTGAGE AND ALL WAIVERS AND RELEASES CONTAINED HEREIN, SAID COUNSEL BEING AVAILABLE, OR HAVING EXPLAINED AND ADVISED THE MORTGAGOR, AS TO THE MORTGAGE CONTENTS AND MEANING. MOREOVER, MORTGAGOR FURTHER REPRESENTS AND WARRANTS THAT MORTGAGOR COMPLETELY UNDERSTANDS THIS MORTGAGE HAVING SEEN AND READ ITS CONTENTS, AND IS EXECUTING THIS MORTGAGE VOLUNTARILY AND WITH MORTGAGOR'S FREE CONSENT AND DESIRE. MOREOVER, THE MORTGAGOR HAS REVIEWED AND APPROVED THE RELEASES AND WAIVERS HEREIN, AND HAS BEEN ADVISED BY COUNSEL OF THE CHOICES AVAILABLE TO MORTGAGOR AS TO THE MEANING AND EFFECT OF THE RELEASES AND WAIVERS AND HAS FREELY AND WITHOUT DURESS AGREED TO EXECUTE THIS MORTGAGE. 39. The grants, rights, privileges, and remedies in favor of the Mortgagee and Trustee herein, shall be a covenant running with the land, and shall inure to the benefit of the Trustee, its successors and/or successors-in-title, and to the Mortgagee, its successors, assigns, and/or its successors-in-title. [SIGNATURE(S) ON FOLLOWING PAGE(S)] TRUST 14 9K 1906PG3655 WITNESS the following signatures(s) and seal(s): AH&T Investments, LLC, a Virginia limited liability company By: COMMONWEALTH OF/VIRGINIA Frank Tramer Manager COUNTY OF to-wit: The foregoing instrument was acknowledged before me this day of May, 2005, by Frank Tramer as Manager of AH&T Investments, LLC, a Virginia limited liability My commission expires: 0311 0? TRUST 15 Bit f 906PG3656 Exhibit A ALL THAT certain tract of land situate partly in Southampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania, bounded and described as.follows, to wit: BEGINNING at a corner of lands an at an iron pin now or formerly of The Shippensburg University Foundation; thence along lands of the same, South 74 degrees 12 minutes i 1 seconds West 610.05 feet to an existing iron pin; thence along lands now or formerly of The Shippensburg University Foundation, South 74 degrees 45 minutes 44 seconds West, 696.10 feet to an existing iron pin at the comer of lands now or formerly of The Shippensburg University Foundation and lands now or formerly of Mercy Place Ministries; thence along lands now or formerly of Timothy M. Nye, North 42 degrees 02 minutes 11 seconds West 950.75 feet to an existing iron pin; thence along the same, South 74 degrees 52 minutes 08 seconds West 168.73 feet to an existing iron pin; thence along lands now or formerly of Peter T. Nye, North 43 degrees 02 minutes 30 seconds West, 791.73 feet to a cut de sac along Lot No. 7 to an iron pin; thence along a curve to the left having a radius of 330.00 feet and a chord bearing of North 62 degrees 36 minutes 26 seconds West 221.02 feet; thence along land of Lot No. 5 and land now or formerly of The Shippensburg Auction Center, LLC, North 53 degrees 23 minutes 55 seconds East, 722.19 feet to an existing iron pin; thence by lands now or formerly of Paul W. Leinbach, North 42 degrees 55 minutes 48 seconds West, 758.04 feet to an existing iron pin; thence by the same, South 51 degrees 47 minutes 20 seconds West, 55.02 feet to an existing iron pin; thence by the same, North 42 degrees 46 minutes 39 seconds West, 274.38 feet to a point in U.S. Route 11; thence along U.S. Route 11, North 53 degrees 25 minutes 37 seconds East, 10.06 feet to a point; thence along lands now or formerly of Dennis R. Swan, South 42 degrees 46 minutes 39 seconds East, 264.06 feet to an existing iron pin; thence along the same, North 51 degrees 47 minutes 20 seconds East, 55.00 feet to an existing iron pin; thence along lands now or formerly of James D. Willis, Jr., South 42 degrees 55 minutes 48 seconds East, 1,008.52 feet to an existing iron pin; thence along lands now or formerly of James D. Willis, Jr., South 43 degrees 51 minutes 07 seconds East, 810.42 feet to an existing iron pin; thence along the same, North 45 degrees 12 minutes 15 seconds East, 1108.71 feet to an existing iron pin; thence along lands now or formerly of Randall A. Gilbert, North 45 degrees 42 minutes 03 seconds East, 300.43 feet to an existing iron pin at the comer of lands now or formerly of The Beistle Company; thence along lands now or formerly of The Beistle Company, South 44 degrees 27 minutes 51 seconds East, 746.23 feet to an iron pin at the corner of lands now or formerly of The Beistle Company and lands now or formerly of The Shippensburg University Foundation; thence along lands now or formerly of The Shippensburg University Foundation, South 45 degrees 39 minutes 00 seconds West, 753.03 feet to an existing iron pin; thence along lands of the same, South 39 degrees 29 minutes 20 seconds East, 779.75 feet to an iron pin at the point and place of BEGINNING. CONTAINING 62.33133 Acres, more or less, according to a subdivision plan prepared by Carl D. Bert and Associates, dated January 3, 2005 and recorded in the Office of the OR 190oPG 3657 Recorder of Deeds of Cumberland County, Pennsylvania, in Plan Book 90 at Page 71. Being Lot No. 6. BEING the same real estate that The Estate of Frank E. Hollar, Jr., by its deed datedMay 5, 2005, and intended to be recorded prior hereto in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, granted and conveyed to AH&T Investments, LLC, the Mortgagor herein. i Certify this to be recorded In Cumberland C-ounty PA 8'KI906PG36058 ALL-STATES LEGAL 800-222-0510 ED11 RECYCLED EXHIBIT E ?; . X33 .J a?. CPT ?j?i,,, FRS` 1,,0 of. cCR. ALLONGE AND MODIFICATION AGREEMENT TO THE`f?0 Co. CO J MORTGAGE, ASSIGNMENT, AND GUARANTY C ?? ?'?'T y,'P?m 4 THIS ALLONGE AND MODIFICATION AGREEMENT ("Agreement") is made this J- day 103 of July, 2006, by and between AH&T Investments, LLC, a Virginia limited liability company (the "Maker"), Frank Tramer and Donald Harding (collectively the "Guarantor') and BRANCH BANKING AND TRUST COMPANY OF VIRGINIA, its successors and/or assigns (the "Lender"). WITNESSETH: WHEREAS, the Maker obtained a loan from the Lender in a maximum amount of principal not to exceed TWO MILLION SEVEN HUNDRED NINETY TWO THOUSAND FIVE HUNDRED THIRTY AND NO/100THS DOLLARS ($2,792,530.00) (the "Loan"). WHEREAS, the Maker and the Lender herein are the parties to that certain Mortgage Note dated May 5, 2005, obligating the Maker to pay back the Loan to the Lender the original face amount of TWO MILLION SEVEN HUNDRED NINETY TWO THOUSAND FIVE HUNDRED THIRTY AND NO/100THS DOLLARS ($2,792,530.00) (hereinafter referred to as the "Note"); and WHEREAS, the Note is secured by, among other Loan Documents, that certain Mortgage executed by the Maker dated May 5, 2005 and recorded May 10, 2005 in Volume 1906 at Page 3626, among the land records of Cumberland County, Pennsylvania (the "Mortgage"); that certain Unconditional Guaranty Agreement of even date therewith executed by each of the Guarantors and Spencer Ault (the "Guaranty"); that certain Assignment of Interests, Contracts, Plans, and Permits of even date therewith (the "Assignment"); and all such other Loan Documents contemplated in the Commitment Letter and executed by the Maker in connection with the Loan (all of the Loan Documents contemplated in the Commitment Letter, including but not limited to the Commitment Letter, the Note, the Mortgage, the Guaranty, and the Assignment (the "Loan Documents"); and . WHEREAS, the parties hereto desire to increase the Loan Amount from $2,792,530.00 to $3,887,168.00; WHEREAS, the parties hereto desire to increase the lot release price described in paragraph 26(a)(viii)(c) of the Mortgage from $44,000.00 per lot to $56,336.00 per lot; and WHEREAS, the parties hereto desire to release Spencer Ault from the Guaranty; NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto do hereby agree as follows: 1. All of the recitals stated above are hereby incorporated herein by reference as if fully set forth in the body of this Modification. 2. The Loan Amount is hereby increased from $2,792,530.00 to $3,887,168.00. The face amount of the Mortgage is increased from $2,792,530.00 to $3,887,168.00. The Maker shall pay a Loan commitment fee in the amount of $5,000.00 which shall be deemed completely earned by Lender at the closing of this Agreement. 3. The lot release price described in paragraph 26(a)(viii)(c) of the Mortgage is increased from $44,000.00 per lot to $56,336.00 per lot. Spencer Ault is released from the Guaranty. 5. Maker consents to a continued first Mortgage lien on the Real Property more particularly described in Exhibit A, in favor of the Lender. BK0729PG3774 1 I10 -- OoQa el G LIA 6. Maker is the owner in fee simple title of the Real Property, and Maker has no actual knowledge of any threatened or pending law suits, judgments, arbitration proceedings, executions or other legal or equitable actions or proceedings in connection therewith. 7. Nothing herein shall be construed to release Maker from any of the obligations set forth in the Note, Mortgage, and/or under any of the other Loan Documents executed by the Maker in connection with the Loan (the "Loan Documents"). 8. This Agreement shall not be deemed or construed to be a novation or release of any of the Loan Documents, or any parties thereto, and each of the Guarantors by executing this Agreement consents to remain unconditionally bound by the terms of the Guaranty, as may be modified by this Agreement. 9. This Agreement shall be deemed to be incorporated into and become a part of the Note, the Mortgage, the Assignment, and the Guaranty, as if fully set forth therein, and may be attached to the aforementioned Note. 10. Each of the undersigned hereby certify that the execution, delivery and performance of this agreement has been properly authorized, consented to and approved by all requisite and necessary parties. IL The Guaranty constitutes the valid, legal and binding obligation of each of the Guarantors, enforceable against Guarantors in accordance with the terms thereof, and the liability of the Guarantors under each of the Loan Documents, shall not be diminished in any way by the execution and delivery of this Agreement or by the consummation of any of the transactions contemplated hereby or thereunder. 12. The Guarantors acknowledge and agree that the release of Spencer Ault from the Guaranty shall in no way diminish their guaranty and the Guarantors confirm and ratify the Guaranty. 13. This Agreement constitutes the entire agreement among the parties hereto, supersedes all prior discussions and agreements, and is binding on the parties hereto, their heirs, successors, assigns and successors in title. 14. All references herein to the Note, the Mortgage, the Assignment, and the Guaranty, and any or all of the Loan Documents shall include in each case any and all prior amendments or modifications thereto. 15. This Agreement is hereby deemed to amend the Note, the Mortgage, the Assignment, and the Guaranty, and each and every one of the other Loan Documents to the extent applicable. Except as modified herein, all other terms and conditions in the Note, the Mortgage, the Assignment, and the Guaranty, and each and every one of the other Loan Documents, shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Agreement for the purposes hereinabove set forth. MAKER: AN&T Investments, LLC, a Virginia limited liability company : Frank Tramer Manager BK0729PG3"5 2 GUARANTOR(S): COMMONWE TH OF COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this ?`?day of July, 2006, by Frank Tramer as Manager of AH&T Investments, LLC, a Virginia limited liability company. COMMONWEALTH OF PENNSYLVANIA LL. NotaMSeW NOTARY PUBLIC My commi SftfflOff"WW ftq Rtglon Fires Apr. 29, 2008 Member, Pennsytvarda A ^ anon Of Notaries COMMONWEA THOF IA -ZA.AA401Z- ? COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this /q"-day of July, 2006, by Frank Tramer, Guarantor(s). COMMONWEALTH OF PENNSYLVANIA Notarial Seal RebeocaLHolby,NotaryPdak NO ARY PUBL SNpppensb Y9 Bora. Ckrnbwtww Courtly Mycommis on trossiortEgriresApr. 2t,209$ Member, Pennsyivanla don Of Notedes COMMONWEA OF COUNTY OF to-wit: . The foregoing instrument was acknowledged before me this _L??day of July, 2006, by Donald Harding, Guarantor(s). Q/4 ?? My commission expires: NOTARY COMMONWEALTH OF PENNSYLVANIA Notow Seat Rebecca L Holhy. Notary Pdit My Coon F.xQires Apr. 29 2008 Member, Pennsykanb AsaociatW Of Notades 3 BK0729PG3776 ALL THAT certain tract of land situate partly in Southampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a corner of lands an at an iron pin now or formerly of The Shippensburg University Foundation; thence along lands of the same, South 74 degrees 12 minutes I 1 seconds West 610.05 feet to an existing iron pin; thence along lands now or formerly of The Shippensburg University Foundation, South 74 degrees 45 minutes 44 seconds West, 696.10 feet to an existing iron pin at the corner of lands now or formerly of The Shippensburg University Foundation and lands now or formerly of Mercy Place Ministries; thence along lands now or formerly of Timothy M. Nye, North 42 degrees 02 minutes 1 i seconds West 950.75 feet to an existing iron pin; thence along the same, South 74 degrees 52 minutes 08 seconds West 168.73 feet to an existing iron pin; thence along lands now or formerly of Peter T. Nye, North 43 degrees 02 minutes 30 seconds West, 791.73 feet to a cut de sac along Lot No. 7 to an iron pin; thence along a curve to the left having a radius of 330.00 feet and a chord bearing of North 62 degrees 36 minutes 26 seconds West 221.02 feet; thence along land of Lot No. 5 and land now or formerly of The Shippensburg Auction Center, LLC, North 53 degrees 23 minutes 55 seconds East, 722.19 feet to an existing iron pin; thence by lands now or formerly of Paul W. Leinbach, North 42 degrees 55 minutes 48 seconds West, 758.04 feet to an existing iron pin; thence by the same, South 51 degrees 47 minutes 20 seconds West, 55.02 feet to an existing iron pin; thence by the same, North 42 degrees 46 minutes 39 seconds West, 274.38 feet to a point in U. S. Route 11; thence along U. S. Route 11, North 53 degrees 25 minutes 37 seconds East, 10.06 feet to a point; thence along lands now or formerly of Dennis R. Swan, South 42 degrees 46 minutes 39 seconds East, 264.06 feet to an existing iron pin; thence along the same, North 51 degrees 47 minutes 20 seconds East, 55.00 feet to an existing iron pin; thence along lands now or formerly of James D. Willis, Jr., South 42 degrees 55 minutes 48 seconds East, 1,008.52 feet to an existing iron pin; thence along lands now or formerly of James D. Willis, Jr., South 43 degrees 51 minutes 07 seconds East, 810.42 feet to an existing iron pin; thence along the same, North 45 degrees 12 minutes 15 seconds East, 1108.71 feet to an existing iron pin; thence along lands now or formerly of Randall A. Gilbert, North 45 degrees 42 minutes 03 seconds East, 300.43 feet to an existing iron pin at the corner of lands now or formerly of The Beistle Company; thence along lands now or formerly of The Beistle Company, South 44 degrees 27 minutes 51 seconds East, 746.23 feet to an iron pin at the corner of lands now or formerly of The Beistle Company and lands now or formerly of The Shippensburg University Foundation; thence along lands now or formerly of The Shippensburg University Foundation, South 45 degrees 39 minutes 00 seconds West, 753.03 feet to an existing iron pin; thence along lands of the same, South 39 degrees 29 minutes 20 seconds East, 779.75 feet to an iron pin at the point and place of BEGINNING. CONTAU41NG 62.33133 Acres, more or less, according to a subdivision plan prepared by Carl D. Bert and Associates, dated January 3, 2005 and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Plan Book 90 at Page 71. Being Parcel C and Lot No. 6. I CCrtifV 1':is t-C rcCOrac:d In Cur.-dand County PA BK 0 7 2 9 PG 3 7 7 7 Recorder of Deeds ALL-STATE' LEGAL 800-222-0510 ED11 RECYCLED = .f i ?KV"b ? r EXHIBIT F 09/07/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 22/26 ALLONGE AND MODI1r1CATION AQUOU "Ni`'JPO?'H13!Niv 1 ,JT'l MORTGAGE AND ASSIG2giit~ R 19 P f 15 THIS ALLONGE AND MODIFICATION AGR1i6MENT C Agmemeett') is made this/ day of April, 2007, by and between AR& T laveatments, LLC, a VlrZWn limited liability compalay (the "Maker'-), Frank Timmer and Donald Handing (collectively dw "Guwantor-) and BR"CH BANING AND TRUST COMPANY, a North Carolina banking corporation as s umeasor by mergcrc to BRANCH BANKING AND TRUST COMPANY OF VIRGINIA, its successors mod/or assigns (the "Lander"), WITNESSETH: WHEREAS, the Maker obtained a load &vm the Leader in a maxim- nt sonoamt of principal not to exceed TWO MILLION SEVEN EMV DS= NMZTY TWO THOUSAND FM RUNDAED THIRTY ANA N0110nWS DOLLARS (33,792,530.00) that was m*seguently umvessed to THREE MILLION RIGHT HUNDRED WCE2'X SEVEN THOUSAND ONE HUNDRED SIXTY EIGHT AND NO/100THS DOLLARS (33,887,16880) (the'Imse). WIEMURAS, the Maker and the Lender bemin are the patties to that certain Mortgage Note dated blay S, 2005, obligating the Maker to pay back do Lon to the Leader the original face amount of TWO MILLION SEVEN HUNDRED NINETY TWO THOUSAND FIVE HUNDRED THIRTY AND NO/100THS DOLLARS (I14M,430.00) that was wAwgQemtlj• increased to TffieEE MR.LION LIGHT HUNDRED EIGHTY SEVEN THOUSAND ONE HUNDRED 13I71C1'Y EIGHT AND NO/109THS DOLLARS ($3,U7,168.00) (bacei after referred to as the "Nona"); and WIIRREAS, the Now is secured by, among other Loan Documents„ that certain Mortgage executed by the Molter dated Mat 5t, 2005 and recorded May 10, 2005 in Volume 1906 at Page 3626, as modi£ed by that eartain Allorege and Modification Agreement to the Note, Mortgage, Ase4mment and Guaranty dated July 19, 2006 and recorded in Deed Book 729 at Pasco 3774 among the land records of Cumberland County, >Pemsylvants (the "Mortgage"); that certain Unconditional Gun mty Agreement of even date therewith execntad by each of the Guarantors (the "Ovarane); that certain Assignment of lntarsts, Contracts, Plans, and Peamits of even date therewith (the "Assigtitrme); and all such other Lou Documents eontemtplataxi in the Commitment Letter acrd executed by the Maker in connection with the Loan (all of the Loan Do am=ts eon mVh tad in the Commitment Letter, including but not limited to the dommitmint Letter, the Note, the Mortgage, the Guaranty, and the Assignment (the "Loan Documents); and WHEPJW, the parties hereto desire to i rcrew the Loan Amount fi m $3,897,168.00 to 54,772,168.00; WHEREAS, the parties hnem desire to ineaesse the lot release price described in paragraph 26(s)(viiixo) of the Mortgage from $56,336.00 per lot to $69,200.00 per lot; and NOW THEREFOR$ for good and valuable consideration, the receipt and sufficirmcy of which are be? mutually acknowledged, the parties hereto do beteby agree as follows: 1. All of the recitals stated above are horoby incorporated he mk by r etxnenco as if fully aft forth in the body of this Modification. 2. The Loan Amount is berreby increased from $3,887,168.00 to 54,7727160.00. The face amount of the Mortgage is increased from $3,887,168.00 to $4,772,168.00. The Maker shall pay a Loan commitment fee in the amount of $2,200,00 which shall be deamed completely darned by L under at the closing of this Agreement. 3. The lot release price described in parasx b 26(aXvii)(c) of the Mortgage is increased from $56,336.00 pcr lot to $69,200.00 per lot OR 0736PG0868 V0512008 2:52;33 PM CUMBERLAND COUNTY InstA 200713115. Pago t of 5 • 09/0'7/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 23/26 a 4. Maker contents to a oontitmed first Mortgage lien on the Real Property more particularly described In Exhibit A, in favor of the Lender. 5_ Maker is the Owner in The simple title of the Real Property, atoll Maker has no actual knowledge of any threatened or pending law snits, judgeaaota, arbitration proceedings, executions or other legal or equitable actions or proceedings in connection them»arith, 6. Nothing herein shall be construed to release Maker from any of the obligations set forth in the Note, Mortgage, and/or under soy of the other Loan Documents executed by the Maker in connection with, the Loan (the "Low Documents"). 7. , This Agmement shall not be deemed or construed to be a nervation or release of any of the Loan Documents, or any parties thereto, and each of the Guarantors by executog this Agreement conaenb to remain uncondWonalty bound by the terms of the Guacarhty, as may be modified by this Agreement. $. This Agro meat .hail be domed to be incorporated into and become a part of the Note, the Mortgage, the A309=e4 and the Guaranty. as if fihlly set forth thereiu, and may be attached tO the aforementioned Mote. 9. Each of the undersigned hereby oatify that the execution,, delivery and performance of this agreement has been pmperly authorized, consented to and approved by all requisite and necessary parties. 14. The Guaranty constitutes' the valid, legal and binding obligation of each of the guarantors, cnfm=abb against Guarantors in accordance with the tatme thereof, and the liability of the Guarantors wader each of the Loan Documents, shall not be diminished in any way by the execution and delivery Of Us Agreement or by the =011mi adon of say of the transacdons eonicmplated hereby or thereunder. it. The Guarantors acknowledge and agree that the to ease of Spencer Ault fi'.vm the Guaranty shall in no way diminish their guaranty and the Guarantors confirm and ratify the Gua sty. 12, This Agreement cotadtutes the entice agreement among the pattiej hereto, supersedes all prior discussions and agreements, and is binding on the parties hereto, their heirs, successors, assigns and successors in title. 13. All refiGrenees herein to the Note, the Mortgage, the Assignment, and the Ouaraaty, and .try Or all of the Loan Docwnpe41% shall include in each case any and an prior amendments or modifications thereto. 14. This Agreeraont is hereby deemed to amend the Note, the Mortgage, the Aaslgnaten% and the Guaranty, and each and every one of the other Loan Docwmreuts to the extent applicable. Except as modified herein, all other tease and conditions in the Note, the Mortgage, the Assignment, and the Gissranty, and arch and every one of the other Loan Dommnenta, shall remain unchanged and in full force and effect. OK0736F608,69 2- 1105/2008 2:52:33 PM CUMBERLAND COUNTY Intl 200713115 - Page 2 of 5 09/07/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 24/26 r IN Wn-Np.SS WHEREOF, the parties hateto have executed this Aareewaat for the Pumow hereiuasbove set forth. MAKM AHAT lavesbnen% LLC, a Vk&k Hmittd tiahldty company By: Manager GUARANTOR(S): The foregoing nwitument was w- mowWpd beforo me this `day of April, 2007, by Frank Trainer as Manager of AH&T Investmenui LLC, a VlrtWa limited HlabWty company. COMMONveft- -OF ft6MtIkL "*y. bldWyPvob NOTARY PUB S? Eo?g CvmissAStlO Lbur?r My 2a iXtOE hammer, *Mry - aµ:nn C$ N Uffka NOTARY PUBU My oommission e-Vi ra: COMMONWEALTH OF VRW Pl "b rLVAAIA COUNTY OF , to-wit: -CVAGOMMAND The foregoing bu mmentt was acknowledged before me that /Uvo?o'day of Aprik 2007, by Prank Trainer, Guarantor(s). ,-H OF WcerwOsd soror]d(bW }I nAlrcbrm?l.wx,?1? WAPCft2W ON0736PGO870 9 )/05/2DD9 2'52:33 PM CUMBERLAND COUNTY InsTA 200713115 • Page 3 of 5 COMMONWEALTH OF vmepa* rzomiLVANrIA COUNTY OF to-wit: 09/0.7/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 25/26 COMMO TH OF CDU1dTY 01= to-wit: The iQM90itt6 instr=cut was ac)mwo dged before me this -o 1 of April, 2007, by Donald Hardint, Guwwt*s). _ Z My commission expjM NOT X 1'CJBLI ftd M? n6{liiwA$K29 tM sw A.aeratbn atllorl.. ON©736PG087I 4 V0512008 2:52,33 PM CUMBERLAND COUNTY Inst.# 200713115 • Page 4 of 5 09/067/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 26/26 ALL THAT certain tract of land situate partly in Southampton 't'ownship and partly in Sbippensburg Township, County of Cumberland and Commonwealth of Pennsylvania, bounded and described as follows, to wit. BEGINNING at a comer of lands an, at an iron pin now or formerly of The Shippeasburg University Foundation.; thence along lands of the same, South 74 degrees 12 minutes 11 seconds West 610.05 feet to an existing iron pin; thence along lands now or foxmcily of The Shippemburg University Foundation, South 74 degrees 45 minutes 44 seconds West, 696.10 fleet to an existing imon pin at the comer of lands now or formerly of Ao Shippensburg University Foundation and lands now or formerly of Mercy Plaoe Ministries; tbolnce along Iands now or formerly of Timothy M. Nye, North 42 degrees 02 minutes 11 seconds West 950.75 feet to an existing iron pin; thence along the same, South 74 degrees, 52 mimtes 08 seconds West 168.73 feet to an existing iron pin; thence along lands not,,, or formerly of Peter T. Nye, North 43 degrees 02 minutes 30 seconds West, 791.73 feet to a cul de sac along Lot No. 7 to an iron pin; thence along a curve to the left having a radius of 330.00 feet and.a chord bearing of North 62 degrees 36 minutes 26 seconds West 221.02 feet; thence along land of Lot No. 5 and land now or formerly of The Sbippensburg Auction Center, LLC, North 53 degrees 23 minutes 55 seconds East, 722.19 feet to an existing iron pin; thet m by lands now or formerly of Paul W. Leinbach, North 42 degrees 55 minutes 48 seconds West, 758.04 fleet to an existing iron pin; thence by the same, South 51 degrees 47 minutes 20 seconds West, 55.02 feet to an existing iron pin; thence by the same, North 42 degrees 46 minutes 39 seconds West, 274.38 foot to a point in U.S. Route 11; thence along U.S. Route 11, North 53 degrees 25 minutes 37 seconds East, 10.06 feet to a point; thence along lands now or formerly of Dennis R. Swan, South 42 degrees 46 minutes 39 seconds East, 264.06 feet to an existing iron pin; thence along the same, North 51 degrees 47 minutes 20 seconds East, 55.00 feet to an existing iron pin; thence along lauds now or fomnerly of James D. Willis, Jr., South 42 degrees 55 minutes 48 seconds East, 1,008.52 feet to an existing iron pin; thence along lands now or formerly of James D. Willis, Jr., South 43 degrees 51 minutes 07 seconds East, 810.42 feet to an existing iron pin; thence along the same, North 45 degrees 12 minutes 15 seconds East, 1108.71 feet to an existing iron pin; thence along lands now or formerly of Randall A. Gilbert, North 45 degrees 42 minutes 03 seconds East, 300.43 feet to an existing iron pin at the cornet of lands now or formerly of The Beistle Company; thence along lands now or formerly of The Beistle Company, South 44 degrees 27 minutes 51 seconds East, 746.23 feet to an iron pin at the corner of lands now or formerly of The Bedstle Company and lands now or formerly of no Shippeusburg University Foundation; thence along lands now or formerly of The Sbdppenfiburg University Foundation, South 45 degrees 39 minutes 00 seconds West, 753.03 fed to an existing iron pica; thence along lands of the. same:, South 39 degrees 29 minutes 20 seconds East, 779.75 feet to an iron pin at the point and place of BEGINNING. CONTAINING 62.33133 Acres, more or less, according to a subdivision plan prepared by Carl D. Bcrt and Associates, dated January 3, 2005 and recorded in the Ofice of the Recorder of Deeds of Cumberland County, Pennsylvania, in Plan Book 90 at Page 71. Being Parcel C and Lot No. 6. I Certify this to be recorded In Cumberland County PA 010736PGOB72 '. T' ???rcicr of nr?ri /05/2008 2;52:33 PM CUMBERLAND COUNTY rnst.# 200713115 - Page 5 of 5 ALL-STATED LEGAL 800-222-0510 ED11 RECYCLED e rx?)?if & EXHIBIT G IJWh8/2bb8 18:40 11123b2995 CENTRAL PA ABSTRACT PAGE 02/05 -311 ?D e 05ERT P: ZIESLER- W,XZ"- %V-- .Ea6,0RI.1 P. OF 0't ALLONGE AND MODUaCATION' nTr, MORTGAGE AND ASISI TEUS ALLON0E AND MODIFICATION .A,GA A iA L& this daY of April, 20117. by and between AHH&T Iaveatmaat4 LLC+ s VIVSmla Ilmlted Ilabitity Comp3107 (the "Makee ), ]Frank Trainer and Donald Harding (collectively the "Ciuetaaton and BRANCH BAXNG AND TRUST COMPANY, a North Carolina bau dag cxrpoxation as saecessor by merger to BRANCH BANKING AND TRUST COMPANY OF VIRGDUA, its successors and/or assigns (the "Leader"). WITNLSSETH; WIJEREAS, the Maker obtained a loan fi v m the Lender maximum amount of principal not to exceed TWO Mj(LLION AND N011WTRS DOLLAM ($2,000,. WHEREAS, the Maker ttnd the Lender herein are the pates to that certain Mortgage Note dated May 5, 2005, obligating tltc Maker to pay back Loam le Lender ?tie original, face ? as amount of TWO 11+5 JJON AND NOt'100THS DOLLARS ($& A? ) (hereinafter WHMREAS, the Note is secured by, among other Lawn Documents, that eartsin Mortgage executed by the Maker dated May 5, ZOOS and morded May 10, 2005 in Vetmne 1906 at Page 3642, among the land records of Cu nberlmW County, Pennsylvanla (the "Mortgage"); that certain thwonditionel Guaranty Agreement of even date t wrewith executed by each of the auw=tota (the "Guernuly"); that certain Assignment of Interests, Coattacts, Plans. and Permits of even date therewith (the 'pmdgnmeot"); and all such other Loan Documents contemplated in the Commitment Letter and executed by the Maker in connection with the Loan (all of the Loan Documents contmplated in the Commitment Letter, including but not limited to the Commitment Letter, the Note, the Mortgage, the Guaranty, and the Assignment (the "Loan Documents"); and WHEREAS, the parties hetetao desire to extend the Maturity Data of the Note twelve (12) months from May 5, 2007 to May 5, 2008; NOW THEREFORE, for good and valuable opusidenttion, the receipt and sufficieocy of which are hereby mutually acknowledged, the patties hereto do hweby agree as follows; 1. All of the recitals stated above are hereby incorporated herein by reference as if fully set forth in the body of this Modification. 2. I1io Maturity Date under the Note is extended twelve (12) months from May 5, 2007 to May 5, 2008. The new Maturity Data is May 5, 2008. 3. ]Maker consents to a continued first Mortgage lien on the Real Property more particularly described in Exhibit A, in favor of die Lender. 4. Maker is the owner in fee simple titla of the Real Property, and Maker has no actual knowledge of any threatened or pending law suits, judgmaeuts, arbit m*m prooeedinga, executions of other legal or equitable actions or proceedings in connection therewith. 5. Nothing hernia awl be cmalrued to release AbIcer fiiomi any of the obligations act forth in the Note, Mortgage, anVor under any of the other Loan Doc=ents executed by the Maker in connection with the Loan (the "Loan Documents" ). 6. This Agreement shall not be doomed or construed to. be a novation or release of any of the Loan Mc u:ments, or any parties tberato, and each of rho Ouar?l" by executing this Agreement consents to remain unconditionally bound by the terms of the Guaranty, as may be modified by this Agreement. RK-0736PG0873 09/0512008 2:59:59 PM CUMBERLAND COUNTY Inst.s 200713115 - Page 1 of 4 09!08!2008 18:40 7172362995 CENTRAL PA ABSTRACT PAGE 03/05 7. This Agreement abal! be doemed to be incotporated into and become a peat of the Note, the Mortgage, the Assignmeat, and the Guaremty, as if fully set forth therein, add may be attached to the aforemendened Note. 8. Each of the undersigned bmeby certify that the execution, deliveery and peeoemance of this agteeaaent has been properly wihotized, consented to a d approved by ag requisite and necessary parties. 9. The Guaranty constitaten the valid, legal and bind;Ag obligation of each of the Guarantom enforceable against Gummours in accotdatsce with the terms therw& and the liability of the Guarantors under each of the Loan Documents, shoo not be dimiaid od Its any way by the execution and delivery of this Agreement or by the consummation of any of the transactions contemplated berebyr or thereunder. 10. This AAgroo mew constitutes the entire agreement among the parties hereto, supersedes all prior discussions and agreanaents, and is binding on the parties hereto, tbeir beirs, sueeessore, assigns and aucomors in title. 11. All refecenoes herein to the Note, the Mortgage, the Assignment, and the Guaranty, and arty or all of the Loan Doenmonts sban include in each a sae any and all prior amendments or modifications thereto. 12. This Agreement is hereby deemed to anted the Note? the ,ilttmWge, the Assignment, and the Ouaraaty, and oath and every one of the other Loan Documents to the extent appUcable. Except as modified heteio, all other tetras and oonditioms in the Note, tlse Mortgage, the Assignment, turd the G3uaramry, and each and every one of the other Loan Documents, shall remain unchanged and in fa11 force and effect. IN WrINESS WHMEOF, the parties bereto have executed this Agreement for the purposes bereinabove set forth. MAKER: AH&T Invatmente, LLC, a Virginia United IirrUQlty ???Y BY= Tramer Manager Br0736PG0874 2 9/O512DOO 2:59:59 PM CUMBERLAND COUNTY Inst# 20DT13116 - Page 2 of 4 09/0b/2008 18:40 7172362995 CENTRAL PA ABSTRACT PAGE 04/05 COMMONWEAx,TR OF VR6$ff?r Pli MMMVANTA COUN!'Y OF ct>lgyj A= . to-wit: The foregoing iaatrumeat waa w3mowtedgod before me this ft'd sy of Apr* 2007, by Frank Trainer as Afanwer of AHdaT Uvest may LLCy a Virginia lbdbed &iMty emptily. COMMONWEALTH OF PENNS-YLVAMA NirbfBed NOTARY PUS Rim ILtloftNMyFkM My AR'r$2M Nkftber, PGMWA--I' ' "',^T*HOn Of NOW" COMMONWEALTH OF Wtei? PSl E MVAltl.A COUNTY OF C?8lLA1Sm . to-wit, The foregoing indroment was acknowledged beforo me this N day of April, 2007, by Frier Framer Guaraut*ai). ONNM&7H OF P? I Dom-R01D NOTARY PUS M sA?r 29,? COMMO TH OF cOurnY OF IN ?J[A to-wat The foregoing walrumcot was acknowledged befom me this of April, 2007, by Dowd RAWID , Ciuara ftr(s). MOxARY Pt W My coin miission e:?ires: AQNIMjFM0FPWMtI MIMI Sod I?iOson7?in D???d? I?Ei?k>4g0.? Aten?het, Pann?.rv,NA a 01 Nognlss IN0736PGO875 3 V0512006 2.59:59 PM CUMBERLAND COUNTY . InSL# 200713178 - Page 3 of 4 09/08/2008 18:40 7172362995 CENTRAL PA ABSTRACT PAGE 05/05 ALL THAT certain tract of land situate partly in Southampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania, bounded and described as follows, to wit; BEGINNING at a comer of lands an at an iron pin now or formerly of The Shippensburg University Foundation; thence along lands of the same, South 74 degrees 12 minutes I 1 seconds West 610.05 feet to an existing iron pin; thence along lauds now or formerly of The Shippensburg University Foundation, South 74 degrees 45 minutes 44 seconds West, 696.10 feet to an existing iron piss at the corner of lands now or formerly of The Shippensburg University: Foundation and lands now or formerly of Mercy Place Ministries; thence along lands now or formerly of Timothy K Nye, North 42 degrees 02 minutes i i seconds West 950.75 feet to an existing iron pin; thence along the same, South 74 degrees 52 minutes 08 sevoa& West 168.73 feet, to an existing iron pin; thence along lands now or formerly of 'Peter T. Nye, North 43 degrees 02 minutes 30 seovru st West, 791.73 feet to a cul de sac along Lot No. 7 to an iron pin; thence along a curve to the left having a radius of 330.00 feet and a chord bearing of North 62 degrces 36 minutes 26 seconds West 221.02 feet; thence along land of Lot No. 5 and land now or formerly of The Shippensburg Auction Center, LLC, North 53 degrees 23 minutes 55 seconds East, 722.19 feet to an existing iron pin; thence by lands now or formerly of Paul W. L.einbacli, North 42 degrees 55 minutes 48 seconds West, 758.04 feet to an existing iron pin; thence by the same, South 51 degrees 47 minutes 20 seconds West, 55.02 feet to an existing iron pin; thence by the same, North 42 degrees 46 minutes 39 seconds West, 274.38 feet to a point in U.S. Route 11; thence along U.S. Route 11, North 53 degrees 25 minutes 37 seconds East, 10.06 feet to a point; thence along lands now or fonjnnerly of Dennis R. Swan, South 42 degrees 46 minutes 39 seconds East, 264.06 feet to an existing iron pin; thence along the same, North 51 degrees 47 minutes 20 seconds )fast, 55.00 feet to an existing iron pin; thence along lands now or formerly of James D. Willis, Jr., South 42 degrees 55 minutes 48 seconds East, 1,008.52 feet to an existing iron pin; thence along lands now or formerly of James D. Willis, Jr., South 43 degrees 51 minutes 07 seconds East, 810.42 feet to sn existing iron pin; thence abets the same; North 45 degrees 12 minutes 15 seconds East, 1108.71 feet to an existing iron pin; thence along lands now or formerly of Randall A. Gilbert, North 45 degrees 42 minutes 03 seconds East, 300.43 feet to an existing iron pin at the comer of lands now or formerly of The Beistle Company; thence along lands now or formerly of The Beistle Company, South 44 degrees 27 minutes 51 seconds East, 746.23 feet to an iron pin at the comer of lauds now or formerly of The Beistle'Con4my and lands now or formerly of A* Shippensburg University Foundation; thence along lands now or formerly Of The STuppensburg University Foundation, South 45 degrees 39 minutes 00 seconds West, 753.03 feet to su existing iron pin; thence along lands of the same, South 39 degrees 29 minutes 20 seconds East, 779.75 feet to an iron pin at the point and place of BEGINNING. CONTAINING 62.33133 Acres, more or less, according to it subdivision plan px+vpared by Carl D. Bert and Associates, dated January 3, 2005 and recorded in the office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Plan Book 90 at Page 71. Being Parcel C and Lot No. 6. T Certify this to be reeordeo In Cumberland County PA 10512008 2:59:59 PM CUMBERLAND COUNTY Inst# 20U713116 -Pape 4 Of 4 Aink ALL-STATE°LEGAL B -222-0510 ED11 RECYCLED IW ?x l,, b; I N EXHIBIT H Q9/0.7/2008 23:27 7172362995 CENTRAL PA ABSTRACT PAGE 26/26 ALL THAT certain tract of land sitaate partly in Southamptm Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania, bounded and described as follows, to wit. BEGINNING at a comer of lands an at an iron pin now or fortneerly of The Shippensburg University Foundation; thence along laoeds of the same, South 74 degrees 12 minutes i i seconds West 610.05 feet to an existing iron, pin; thence along lands now or formerly of The Shippeasburg University Foundation, South 74 degrees 4S minutes 44 seconds West, 696.10 fleet tD an existing iron pin at the comer of lands now or formerly of Ao Shippcoshu rg University Foundation and lands now or formerly of Mercy Place Ministries; thence along lands now or fornteerly of Timothy X Nye, North 42 degrees 02 minutes 11 seconds West 950.75 feet to an existing iron pin; thence along the same, South 74 degrees 52 minutes 08 seconds West 168.73 feet to an existing iron pin; thence along lands now or form rly of Peter T. Nye, North 43 degrees 02 minutes 30 seconds West, 791.73 feet to a cul de sac along Lot No. 7 to an iron pin; thence along a curve to the left having a radius of 330.00 feet and a chord bearing of North 62 degrees 36 minutes 26 seconds West 221,02 feet; thence along land of Lot No. 5 and land now or formerly of The Sbippe nsburg Auction Center, LLC, North 53 degrees 23 to iwows 55 seconds Bast, 722.19 feet to an existing iron pin; thence by lands now or formerly of Paul W. Leinbach, North 42 degrees 55 minutes 48 seconds West, 758.04 fleet to an existing iron pin; thence by the same, South 51 degrees 47 minutes 20 seconds West, 55.02 feet to an existing iron pia; thence by the same, North 42 degrees 46minutbes 39 seconds W684 274.38 feet to a point in U.S. Route 11; thence along U.S. Route 11, North 53 degrees 25 minutes 37 seconds East, 10.06 feet to a point; thence along lands now or formerly of Dennis R. Swan, South 42 degrees 46 minutes 39 seconds East, 264.06 feet to an existing iron pile; thence along the saute, North 51 degrees 47 minutes 20 seconds East, 55.00 feet to an existing iron pin; thence along lands now or formerly of James D. Willis, Jr., South 42 degrees 55 minutes 48 seconds East, 1,008.52 feet to an existing iron pin; thence along lands now or formerly of James D. Willis, Jr., South 43 degrees 51 minutes 07 seconds East, 810.42 feet to an existing iron pity; thence along the same, North 45 degrees 12 minutes 15 seconds East, 1108.71 feet to an existing iron pin; thence along lands now or formerly of Randall A. (Albert, North 4S degrees 42 mminutes 03 seaconds Fast, 300.43 feet to an existing iron pin at the corner of lands now or formerly of The Beistle Company; thence along lands now or formerly of The Beistle Company, South 44 degrees 27 minutes 51 seconds ]last, 746.23 feet to an iron pin at the comer of lands now or formerly of The Beistle Company and lands now or formerly of no Shippensburg University Foundation; thence along lands now or formerly of The Sbiippmsburg University Foundation, South 45 degrees 39 minutes 00 seconds West, 753.03 feet to an existing iron pin; thence along lairds of dw. same, South 39 degrees 29 minutes 20 seconds East, 779.75 feet to an iron pion at the point and place of BEGINNMG. CONTAINING 62.33133 Acres, more or less, according to a subdivision plan prepared by Carl D. Bcrt and ,Associates, dated January 3, 2005 and recorded in the d#Etco of the Recorder of Deeds of Cumberland County, Pennsylvania, in Plan Book 90 at Page 71. Being Parcel C and Lot No. 6. I Certify this to be recorded In Cumberland County PA BRO736PGO872 T'-carrier of T-1,-od c /0512008 2:52:33 PM CUMBERLAND COUNTY f net.# 20OT13115 - Page 5 of 5 ALL-STATE LEGAL SUPPLY CO., 1-800-222-0510 EDit RECYCLED E u?,h",F S EXHIBIT I 1 r t Y 1 Lawrence A. Shulman Douglas K. Hirsch Simon M. Nadler Meredith S. Campbell OfCoaax! SHULMAN Donald R. Rogers Glenn C. Etelson Karl W. Means Leslie G. Moylan- Larry N. Gandal David A. Portly* Kul J. Pmtil, Jr.* Mimi L. Magyar Anne Marie V»sallo• Jeffrey A. Shane j1?1?Y David D. Frc Timothy Dugan Glenn W.D. Goldin * Matthew D. Alegi- Lary Gordon- C ? Martin Martin P. Schaafffet er Kim Yui Fiorcnti no * Matthew M. Monte Melanie A. Keegan Thomas A Gravely Lawrence Eisenberg D Christopher C. Roberts Sean P. Shemtsn * Jeannie Eon Cho . Rebekah eborah L. Moran Edward M. Hanson, Jr. Gregory D. Grant David S. Wachen [ OBbwrt !C Debra S. Friedman- David M. KocMraki Jacob S. Frcnkcl• Stephen A. Metz , William B Schroeder* Laura L. Smithn Robert B. Cancer William C. Davis, III Patrick J. Howley . Lawrence M. Kramer Ira E. Hoffmann V [Q?(& 1 Vv Daniel S. n Kkower Kevin P. Keenneddy edy Nancy P. Regelin Michael L. Muscles Kabik Scat D. Museks Michelle R. Curtis. Jacob A. Ginsberg Christine P. 'Tim" Hsu Aaron A. Ghais Alexander C. w e Smcey G Schwababer- Counney R. Sydnort 40641 Cooae! Philip R. Hochberg- ?{???'1 Samuel iii, s* Mattn La evine Michael J. Lichte ss* nscein Michael Howard J. Rcas* Eric J. von Vorys Hong Suk "Paul" Chung* Michelle Hunter HeGmeno pburn- ??ka O. Hepbum• eturn K l L E R ''( ? DA ' Worthington H. Talcaq Jr.* Jeremy W Schulman Debomah A. Klis ark R. Mannt ar . cker \.LL?.L/ 1. L• Fred S. Sommer Morton A. Faller Rebecca oshoway Alan S Heather L. Howard* Kristin E. Draper. Max R. Mummr- Sutton° Alan B. Eli b • awad eedD.C. amw ° as D * Mo V i i l C Alan S. Titles Michael J. . Froehlich Melisaa G. Bernstein- za eth T. P usyn- Rachel E. Solomon- a A irg n an . . only • Maryland only ¦ VA only jam" M. Hoffman Sandy David Baron John D. Sadler Reza Golesorkhi- A D.C, and VA only Michael V. Nakamura Christine M. Sorge Marc E. Pasekoff Edward P. Hetmeberrya t MD and VA only Jay M. Eisenberg* Jeffrey W. Rubin Alexis H. Peters. SaMotma L. Watts- A MD and D.C. only Writer's Direct Dial Number. August 14, 2008 VIA FFDRX AH &T Investments LLC c/o David R. Young, Jr., R.A. 15 Loudoun Street SW, Suite C Leesburg, VA 20175-0000 Re: Mortgage dated May 5, 2005 in the original principal amount of Two Million Seven Hundred Ninety Two Thousand Five Hundred Thirty Dollars ($2,792,530.00), as amended, modified or extended (the "First Mortgage"); and Mortgage dated May 5, 2005 in the original principal amount of Two Million Dollars ($2,000,000.00), as amended, modified or extended (the "Second Mortgage") (the First Mortgage and the Second Mortgage are referred to collectively herein as the "AH&T Mortgages") by and among AH&T Investments, LLC (the "Borrower") and Branch Banking and Trust Company of Virginia ("Lender") and the guarantees by, inter alia, Frank Trainer and Donald Harding Dear Sir/Madam: This Firm represents Branch Banking and Trust Company, a North Carolina banking corporation, successor to Branch Banking and Trust Company of Virginia. Reference is made to the AH&T Mortgages that the Borrower executed in favor of the Lender. This letter constitutes formal notice that the Event of Defaults have not been timely cured. Additionally, by the express terms of the AH&T Mortgages each matured on May 5, 2008. Demand is hereby made for the full amount owed under the AH&T Mortgages. Please be advised that, as of the date of this letter, the amounts immediately due and payable are as follows First Mortgage $3,985,436.48 with a per diem of $642.43 Second Mortgage $1,311,236.53, with a per diem of $211.40 11921 Rockville Pike, Rockville, Maryland 20852-2743 • Tel: (301) 230-5200 a Fax: (301) 230-2891 Washington, D.C. Office: (202) 872-0400 • Greenbelt, Maryland Office: (301) 699-9883 • Tyson Corner, Virginia Office: (703) 684-5200 E-mail: lawfirm@srgpe.com a Internet: www.shulmanrogers.com 1, '" SHULMAN ROGERS CA E AL POREW& ECKM PA. AH&T Investments, LLC August 14, 2008 Page 2 The Lender reserves any and all rights and remedies to which Lender is entitled under the AH&T Mortgages, applicable law and in equity. This letter is notice that Lender intends to exercise its remedies under the AH&T Mortgages, including a sale of the collateral secured thereby. j ruly yours, Hepburn tted in PA) cc: AH &T Investments LLC VIA FEDEX 15051 Taylors Mill Place Haymarket, VA 20169-1034 Attn: Frank Tramer, Manager Frank Tramer VIA FEDEX 15021 Taylors Mill Place Haymarket, VA 20169-1034 (Guarantor) Donlad Harding VIA FEDEX 1331 Apgar Place Herndon, VA 20170-0000 (Guarantor) GA751CL[ENTS\13B&T-111059.70 (AH&T Investments)\default letter 5-01-08.doc i r, '% VERIFICATION I, Warren Sandberg, Vice President, Business Loan Administration, of Branch Banking and Trust Company, certify that I am authorized to make this Verification on its behalf. I hereby verify that the averments trade in the foregoing Complaint in Civil Action - Mortgage Foreclosure are true and correct to the best of my knowledge, information and belief. I under that this Verification is made subject to the penalties provided in 18 Pa.. C.S.A. §4904, relating to sworn falsification to authorities. arren Sa c-rg Title: Vice President, Business Loan Administration {31'221 8611 j v °? \? ?'. ' ? ?. ?:,m ?:. ?t'? ?{ ; 3 -?. ,q r? A IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Branch Banking and Trust Company Plaintiff V. AH&T Investments, LLC Defendant CIVIL DIVISION No. 08-5416 Civil PROOF OF SERVICE The Complaint in Mortgage Foreclosure in the above-captioned matter certified mail, return receipt required, on September 24, 2008, and signed for by September 26, 2008. See attached certified mail receipt. Dated: October 1, 2008 Robert A. Grad Esquire I.D. No. 26722 Eckert Seamans Cherin & Mellott, 213 Market Street, Eighth Floor Harrisburg, PA 17101 Telephone: 717-237-6000 Facsimile: 717-237-6019 Peter N. Pross, Esquire I.D. No. 36890 Eckert Seamans Cherin & Mellott, 600 Grant Street, 44 h Floor Pittsburgh, PA 15219 Telephone: 412-566-5934 Facsimile: 412-566-6099 Counsel for Plaintiff served by on (L0364958.1) A CERTIFICATE OF SERVICE I certify that on the 1St day of October, 2008, I served a copy of PLAINT] BANKING AND TRUST COMPANY'S PROOF OF SERVICES via U.S. Mail, prepaid, addressed to: Frank Tramer, Manager AH & T Investments LLC 15051 Taylors Mill Place Haymarket, VA 20169-1034 BRANCH Robert A. Graci, Esquire Counsel for Plaintiff ,, . ¦ jCompb% items 1, 2, and 3. Also correlate Rear 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you.' t Attach this card to the back of the malpieos, or on the front if space permits. 298647 . 1. Article Addressed to: Frank Tramer, Manager AN & T Investments LLC 15051 Taylors Mill Place Haymarket, VA 20169-1034 & Adicle (anal 1Fgm service bw 1i,ftwwryrw" Is dNhrory address dNkm fiom Poem 1? ? e N YES, enter delivery address below 3. Service Type M owutbd Mdl ? Express Mail 17 Registered M Return Receipt for Me dwWbn 13 Irrsaed Mail ? C.O.D. 4. Red**ed DeMvsry9 Pft feel O Yes -3nnr_ nai.n nnnn 1.1.7; 7662 2 r?g cn SHERIFF'S RETURN - NOT FOUND CASE NO: 2008-05416 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRANCH BANKING AND TRUST COMPA VS AH&T INVESTMENTS LLC R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT AH&T INVESTMENTS LLC but was unable to locate Him in his bailiwick. He therefore returns the COMPLAINT - MORT FORE NOT FOUND , as to the within named DEFENDANT , AH&T INVESTMENTS LLC 126 E KING STREET SHIPPENSBURG. PA 17257 ATTORNEY JERRY WEIGLE ADVISED THAT HE WOULD NOTACCEPT THE PAPER UNLESS HE WAS INSTRUCTED TO DO SO. Sheriff's Costs: Docketing 18.00 Service 20.00 Not Found 5.00 Surcharge 10.00 00 Jbfaa)d4 ? 53.00 So answers- R. ..._-- Thomas Kline Sheriff of Cumberland County ECKERT SEAMANS CHERIN MELLOTT 10/15/2008 Sworn and Subscribed to before me this day of A. D. BRANCH BANKING AND TRUST COMPANY, Plaintiff V. AH&T INVESTMENTS, LLC Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL DIVISION No. 08-5416 PRAECIPE FOR ENTRY OF APPEARANCE OF COUNSEL To the Prothonotary: Please enter my appearance on behalf of the Defendant, AH&T Investments, LLC. - Dated: -3Q-OT-Dated: It)-30-00 By: WEIGLE & ASSOCIATES, P, J-z^? `-elf rry A. Wei Esquire Attorney ID # 01624 126 East King Street Shippensburg, PA 17257 717-532-7388 Joseph P. wane, Esquire ttorne # 71577 1 t King Street Shippensburg, PA 17257 717-532-7388 WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 r-a- 0. BRANCH BANKING AND TRUST COMPANY, Plaintiff V. AH&T INVESTMENTS, LLC Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL DIVISION No. 08-5416 NOTICE TO PLEAD To: Branch Banking and Trust Company, Plaintiff c/o Robert A. Graci, Esquire Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 and Peter N. Pross, Esquire Eckert Seamans Cherin & Mellott, LLC 600 Grant Street 44" Floor Pittsburgh, PA 15219 You are hereby notified to file a written response to the enclosed Defendant's Preliminary Objections to Plaintiff's Complaint in Mortgage Foreclosure within twenty (20) days from service hereof or a default judgment may be entered against you. WEIGLE & ASSOCIATES, P.C. Date: C ©- 3 y OF .idrry A. Weigle, Esquire Attorney ID # 01624 126 East King Street Shippensburg, PA 17257 717-532-7388 WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 L BRANCH BANKING AND TRUST COMPANY, Plaintiff V. AH&T INVESTMENTS, LLC Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL DIVISION No. O&5416 DEFENDANT'S PRELEWWARY OBJECTIONS TO PLAINTIFF'S COMPLAINT IN MORTGAGE FORECLOSURE The Defendant, AH&T Investments, LLC, by and through its attorneys, Jerry A. Weigle, Esquire, and Joseph P. Ruane, Esquire, of Weigle and Associates, P.C., preliminarily object to the Plaintiffs Complaint pursuant to Pa.R.C.P. § 1028 as follows: DEFENDANT'S PRELIMINARY OBJECTION RAISING PENDENCY OFA PRIOR ACTIONPURSUANT TO PA.R.C.P.1028(a)(6) 1. The Plaintiff, Branch Banking and Trust Company, has initiated and is pursuing a prior action titled a Bill of Complaint, in the Circuit Court of Prince William County, Commonwealth of Virginia, filed on or about July 10, 2008 to Case Number CL82930, against the Defendant, pursuant to the same transaction and occurrence and demanding similar relief to this mortgage foreclosure action. 2. The Defendant has been forced to retain counsel and defend itself in two separate jurisdictions (Virginia and Pennsylvania) simultaneously concerning the same transaction and occurrence. WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 3. The Defendant is unduly prejudiced and burdened by having to defend itself in two separate jurisdictions. WHEREFORE, Defendant respectfully requests that its preliminary objections be sustained and Plaintiff's Complaint be dismissed since the Commonwealth of Virginia action predates the Cumberland County Pennsylvania action. DEFENDANT'S PRELIMINARY OBJECTION RAISING INSUFFICIENT SPECIFICITY IN A PLEADING PURSUANT TO PA.R.C.P. 1028(a) (3) 4. Pennsylvania Rule of Civil Procedure 1147 requires a Plaintiff to set forth in a Complaint in Mortgage Foreclosure a description of the land subject to the mortgage (Pa.R.C.P. 1147(a)(2). 5. Plaintiff's Complaint in Paragraph 8 alleges the description of the land subject to the mortgages is attached in Exhibit H. 6. The legal description attached as Exhibit H is a metes and bounds description of a tract of land containing 62.33133 acres, more or less, according to a Subdivision Plan dated January 3, 2005 and recorded in the Office of the Recorder of Deeds of Cumberland County, as stated therein. 7. Numerous lots with improvements have been sold out of said subdivision since 2005 and should have been released from the mortgages. 8. Plaintiff's Complaint fails to allege which lots have been released from the mortgages thereby not providing sufficient specificity in the pleading as to description of the land still subject to the mortgages and being foreclosed upon. WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 WHEREFORE, Defendant respectfully requests that this Honorable Court order Plaintiff to more specifically plead the averments of Paragraph 8 of its Complaint. Respectfully submitted, WEIGLE AND ASSOCIATES, P.C. f- Date: /0_ ??_0,j7 v` ? A. Weig ,Esquire Date: A66mey ID # 01624 j? 126 East King Street / Shippensburg, PA 17257 717-532-7388 Attorney for AH&T Investments, LLC Joseph P. cane, Esquire Attome D # 71577 t King Street Shippensburg, PA 17257 717-532-7388 Attorney for AH&T Investments, LLC WEIGLE & ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397 VERIFICATION I, Jerry A. Weigle, Esquire, do hereby verify that the facts made in the foregoing Defendant's Preliminary objections to Plaintiffs Complaint in Mortgage Foreclosure are true and correct to the best of my knowledge, information, and belief. This verification is being made as no other representative of AH&T Investments, LLC. is available and time is of the essence. Counsel will substitute a verification of an authorized representative of Defendant as soon as it becomes available. I understand that any false statements herein are made subject to the penalties contained in Title 18 of the Pennsylvania Consolidated Statutes Section 4904, relating to unworn falsification to authorities. Date: 1 Q 3(? WEIGLE AND ASSOCIATES, P.C. Perry A. *eigle, Esquire Attorney ID # 01624 126 East King Street Shippensburg, PA 17257 717-532-7388 Attorney for AH&T Investments, LLC WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 CERTIFICATE OF SERVICE AND NOW, this 31" day of October, 2008, I, Jerry A. Weigle, Esquire, hereby certify that I have this day served the following person with a copy of the foregoing document, by depositing same in the United States Mail, First Class, Postage Prepaid, addressed as follows: Robert A. Graci, Esquire Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 Attorney for Branch Bank and Trust Company Peter N. Pross, Esquire Eckert Seamans Cherin & Mellott, LLC 600 Grant Street 44d' Floor Pittsburgh, PA 15219 Attorney for Branch Bank and Trust Company WEIGLE & ASSOCIATES, P.C. Q 01 Jet(y A. Weigle, Esquire 126 East King Street Shippensburg, PA 17257 Telephone: (717)532-7388 WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - 5HIPPENSBURG, PA 17257-1397 c? ? -„ -: ? '= a ? `- ? ? - w -- `-? c r <.;.. '... ..T.. -?-a - ? `_? ?? '?, , C:: -- `--? iU --?.i BRANCH BANKING AND TRUST COMPANY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. AH&T INVESTMENTS, LLC., CIVIL DIVISION No. 08-5416 Defendant. PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT IN MORTGAGE FORECLOSURE Plaintiff, Branch Banking and Trust Company, by its attorneys, Eckert Seamans Cherin & Mellott, LLC, responds to Defendant's Preliminary Objections to Plaintiff's Complaint in Mortgage Foreclosure as follows: On or about July 10, 2008, Plaintiff Branch Banking and Trust Company ("Plaintiff') filed a Bill of Complaint in the Circuit Court of Prince William County, Virginia against AH&T Investments, LLC, Frank Tramer and Donald Harding ("Bill of Complaint"). 2. Plaintiff's Bill of Complaint was assigned Case No. CL 82930 ("Commonwealth of Virginia Action"). True and correct copies of Plaintiff's Bill of Complaint and the Docket for the Commonwealth of Virginia Action are attached to this Response as Exhibits "A" and "B", respectively. 3. On September 11, 2008, Plaintiff initiated this civil action by filing a Complaint in Mortgage Foreclosure ("Foreclosure Complaint") against AH&T Investments, LLC ("AH&T"). (J1239802.1) 4. On October 30, 2008, AH&T filed its Preliminary Objections to Plaintiff's Foreclosure Complaint ("Preliminary Objections") Response to Preliminary Objection Raising Pendency of a Prior Action Pursuant to Pa. R.C.P. 1028(a)(6) 5. For its first Preliminary Objection, AH&T avers that the Foreclosure Complaint should be dismissed since it was "predated" by the Bill of Complaint in the Commonwealth of Virginia Action. 6. In order to successfully prevail on its preliminary objection under Pa. R.C.P. Rule 1028(a)(6), AH&T must show that the Commonwealth of Virginia Action and this mortgage foreclosure action are the same, the parties are the same, and the relief requested is the same. See Hessenbruch v. Markle, 194 Pa. 581, 45 A. 669, 671 (1900); Meinhart v. Heaster, 424 Pa. Super. 433, 622 A.2d 1380, 1382 (1993). 7. When any of these three elements is missing, a preliminary objection on the ground of a prior pending action or lis pendens cannot be sustained. 5 Standard Pennsylvania Practice 2d § 25:103 at 210 (West 2001). As this Honorable Court will readily ascertain from a review of the Bill of Complaint and the Foreclosure Complaint, the Commonwealth of Virginia Action and this foreclosure action are not the same. Specifically, the Bill of Complaint seeks a money judgment against AH&T and two guarantors, Mr. Tramer and Mr. Harding. Conversely, the Foreclosure (J1239802.1) 2 Complaint seeks an in rem judgment in foreclosure against AH&T only. Compare Bill of Complaint, ¶ 7-28 with Foreclosure Complaint, ¶ 1-16.1 9. Moreover, the parties are not the same in the Commonwealth of Virginia Action and this mortgage foreclosure action. 10. Finally, the prayers for relief in the Bill of Complaint and the Foreclosure Complaint do not seek the same relief. 11. Therefore, Plaintiff respectfully submits that this Honorable Court deny AH&T's preliminary objection under Pa. R.C.P. Rule 1028(a)(6). Response to Preliminary Objection Raising Insufficient Specificity in a Pleading Pursuant to Pa. R.C. P. 1028(a)(3) 12. According to AH&T, "numerous lots with improvements have been sold out of [AH&T's] subdivision since 2005 and should have been released from the mortgages." See Preliminary Objections, ¶ 7. 13. For its second Preliminary Objection, AH&T avers that "Plaintiff's Complaint fails to allege which lots have been released from the mortgages thereby not providing sufficient specificity in the pleadings as to description of the land still subject to the mortgages and being foreclosed upon." See Preliminary Objections, at ¶8.2 ' The exhibits to the Bill of Complaint are not attached to Exhibit 1 to this Response because the exhibits are voluminous. Moreover, some of exhibits to the Bill of Complaint are already attached as exhibits to the Foreclosure Complaint. s Pa. R.C.P. Rule 1147(a) sets forth the specific pleading requirements for a complaint in mortgage foreclosure. One of the requirements is "a description of the land subject to the mortgage." Pa.R.C.P. 1147(a)(2). (J 1239802.1) 3 14. Based on this make weight argument, AH&T requests that this Honorable Court order Plaintiff to more specifically plead the averments of Paragraph 8 of its Complaint. 15. A motion for a more specific complaint is available so that a defendant's right and ability to answer and defend will not be unduly impaired by a plaintiffs vagueness in stating the grounds of his lawsuit. Local No. 163, Intern. Union of United Brewery Flour Cereal, Soft Drink & Distillery Workers of America v. Watkins, 417 Pa. 120, 207 A.2d 776, 778 (1965). In other words, Pa. R.C.P. Rule 1019(a) and Pa. R.C.P. Rule 1028(a)(3) require a plaintiff to disclose the material facts sufficient to enable the defendant to prepare their case. 16. However, a motion for a more specific pleading should be denied if the averments of the complaint are sufficient to enable the defendant to prepare a defense or to address the matters that are essentially evidentiary. Likewise, a preliminary objection on the ground of insufficient specificity of a complaint should be denied where the defendant may be presumed to have at least as much information as plaintiff. Id. at 778; 5 Standard Pennsylvania Practice 2d su ra, § 25.67 at 180 and § 25.70 at 183. 17. Plaintiff respectfully submits that Paragraph 8 of the Foreclosure Complaint sufficiently pleads the "description of the land subject to the mortgage(s)". Moreover, Plaintiff s so-called failure to allege which lots have been released from the mortgages does not unduly impair AH&T's ability to answer and defend the Foreclosure Complaint. 18. Specifically, and as noted by AH&T in its Preliminary Objections, the Foreclosure Complaint incorporates by reference a detailed metes and bounds description of the land subject to the Plaintiff's mortgages. See Foreclosure Complaint, ¶ 8 and Exhibit H. The (J1239802.1) 4 legal description also includes a specific reference to a recorded subdivision plan and to a specific parcel and lot. See McClintock v. Ca ip tal Apartments Inc., 9 Cumb. 25, 26 (C.P. 1958) (description of land by lot number according to plan of lots was sufficiently specific to enable defendant to file an answer to complaint for injunction). 19. Of greater significance, as the owner of the land subject to Plaintiff's mortgages, AH&T may be presumed to have at least as much information as Plaintiff as to the lots that AH&T has sold out of its subdivision since 2005 and the lots that are still subject to Plaintiff's mortgages. 20. Accordingly, this Honorable Court should deny AH&T's preliminary objection under Pa.R.C.P. 1028(a)(3). WHEREFORE, for the reasons stated above, Plaintiff respectfully requests that this Honorable Court enter an Order denying Defendant's Preliminary Objections to Plaintiff's Complaint in Mortgage Foreclosure and directing Defendant to answer Plaintiff s Complaint within ten (10) days of its Order. submitted, Pa. I.D. #26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6000 (717) 237-6019 facsimile and (J1239802.1) 5 Peter N. Pross, Esq. Pa. I.D. #36890 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street 44th Floor Pittsburgh, PA 15219 (412) 566-5934 (412) 566-6099 facsimile Dated: November 13, 2008 Attorneys for Plaintiff, Branch Banking and Trust Company (J1239802.1) 6 VERIFICATION I, Warren Sandberg, Vice President, Business Loan Administration, of Branch Banking and Trust Company, certify that I am authorized to make this Verification on its behalf. I hereby verify that the averments made in the foregoing Plaintiff's Response to Defendant's Preliminary Objections to Plaintiff's Complaint in Mortgage Foreclosure are true and correct to the best of my knowledge, information and belief. I under that this Verification is made subject to the penalties provided in 18 Pa. C.S.A. §4904, relating to sworn falsification to authorities. ,e4W?arren San erg Title: Vice President, Business Loan Administration {JI239802.1) EXHIBIT A ,t DATE VIRGINIA: %A1wP Y IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY BRANCH BANKING AND TRUST COMPANY 6400 Arlington Boulevard Falls Church, VA 22042 Petitioner, II???II?II??? V. - CL82930 AH&T INVESTMENTS, LLC 15051 Taylors Mill Place Haymarket, Virginia 20169-1034 and FRANK TRAMER 15051 Taylors Mill Place Haymarket, Virginia 20169 and DONALD HARDING 13331 Apgar Place Herndon, Virginia 20180 ; Respondent. BILL OF COMPLAINT Petitioner Branch Banking And Trust Company, by its undersigned counsel, Shulman, Rogers, Gandal, Pordy & Ecker, P.A., hereby sues Defendants AH&T Investments, LLC, Frank Tramer and Donald Harding and for a cause of action states: Y PARTIES 1. Petitioner Branch Banking And Trust Company (`BB&T") is a North Carolina banking corporation. 2. Respondent AH&T Investments, LLC ("AH&T") is a Virginia limited liability company with its principal place of business located in Haymarket, Virginia. 3. Respondent Frank Tramer ("Tramer") is an adult resident of Haymarket, Virginia. 4. Respondent Donald Harding ("Harding") is an adult resident of Herndon, Virginia. JURISDICTION AND VENUE 5. This Court has personal jurisdiction over the Defendants Tramer and Harding because they are residents and citizens of the Commonwealth of Virginia. This Court has personal jurisdiction over AH&T because it is a Virginia corporation and it regularly conducts business in Virginia. 6. Venue lies properly in this Court pursuant to Va. Code Ann. 8.01-262 (1)(2)(3) and (4) Count I (Breach of Contract - AH&T) 7. The allegations set forth in the foregoing paragraphs are incorporated by reference in this Count as if fully set forth herein. 8. On May 5, 2005, AH&T executed a Promissory Note ("AH&T Note") in favor of BB&T in the amount of Two Million Seven Hundred Ninety Two Thousand Five Hundred Thirty and No/100 Dollars ($2,792,530.00). A true and accurate copy of the AH&T Note is attached hereto as Exhibit 1 and is incorporated by reference herein. 2 9. On July 19, 2006, AH&T entered into an Allonge and Modification Agreement to the Note, Mortgage, Assignment, and Guaranty with BB&T ("AH&T Modification"). The AH&T Modification increased the amount of AH&T's indebtedness to BB&T to the sum of Three Million Eight Hundred Eighty-Seven Thousand One Hundred Sixty-Eight and No/100 Dollars ($3,887,168.00). A true and accurate copy of the AH&T Modification is attached hereto as Exhibit 2 and is incorporated by reference herein. 10. On April 13, 2007, AH&T entered into a second Allonge and Modification Agreement to the Note, Mortgage, Assignment, and Guaranty with BB&T ("Second AH&T Modification") (the AH&T Note, AH&T Modification and the Second AH&T Modification are hereinafter collectively referred to as the "AH&T Note"). The Second AH&T Modification increased the amount of AH&T's indebtedness to BB&T to the sum of Four Million Seven Hundred Seventy-Two Thousand One Hundred Sixty-Eight and No/100 Dollars ($4,772,168.00). A true and accurate copy of the Second AH&T Modification is attached hereto as Exhibit 3 and is incorporated by reference herein. 11. AH&T is in default under the terms of the AH&T Note for, inter alia, failing to make payments when due. 12. BB&T is entitled to damages in the amount of Three Million Nine Hundred Forty-Eight Thousand Four Hundred Ninety-Five and 38/100 Dollars ($3,948,495.38) against AH&T pursuant to AH&T Note. 13. Pursuant to the AH&T Note, BB&T is entitled to recover all costs and expenses, including reasonable attorney's fees, incurred by BB&T to enforce its rights under the AH&T Note. 3 14. As a result of AH&T's default under the AH&T Note, BB&T has suffered direct pecuniary damages. WHEREFORE, Plaintiff Branch Banking and Trust Company respectfully requests that this Court: A. Enter judgment in favor of Plaintiff Branch Banking and Trust Company and against Defendant AH&T Investments, LLC as to Count I in the amount of Three Million Nine Hundred Forty-Eight Thousand Four Hundred Ninety-Five and 38/100 Dollars ($3,948,495.38), reasonable attorney's fees, interest and court costs; and B. Grant Plaintiff such other relief as may be appropriate. Count II (Breach of Contract - AH&T) 15. The allegations set forth in the foregoing paragraphs are incorporated by reference in this Count as if fully set forth herein. 16. On May 5, 2005, AH&T executed a Promissory Note ("AH&T Note 2") in favor of BB&T in the amount of Two Million and No/100 Dollars ($2,000,000.00). A true and accurate copy of the AH&T Note 2 is attached hereto as Exhibit 4 and is incorporated by reference herein. 17. On April 13, 2007, AH&T entered into an Allonge and Modification Agreement to the Note, Mortgage, Assignment, and Guaranty with BB&T ("AH&T Modification to Note 2"). The AH&T Modification to Note 2 extended the maturity date under Note 2 until May 5, 2008. A true and accurate copy of the AH&T Modification to Note 2 is attached hereto as Exhibit 5 and is incorporated by reference herein. 4 f 18. AH&T is in default under the terms of the AH&T Note 2 for, inter alia, failing to make payments when due. 19. BB&T is entitled to damages in the amount of One Million Three Hundred Two Thousand Three Hundred Fifty-Seven and 57/100 Dollars ($1,302,357.57) against AH&T pursuant to AH&T Note 2. 20. Pursuant to the AH&T Note 2, BB&T is entitled to recover all costs and expenses, including reasonable attorney's fees, incurred by BB&T to enforce its rights under the AH&T Note. 21. As a result of AH&T's default under the AH&T Note 2, BB&T has suffered direct pecuniary damages. WHEREFORE, Plaintiff Branch Banking and Trust Company respectfully requests that this Court: A. Enter judgment in favor of Plaintiff Branch Banking and Trust Company and against Defendant AH&T Investments, LLC as to Count II in the amount of One Million Three Hundred Two Thousand Three Hundred Fifty-Seven and 57/100 Dollars ($1,302,357.57), reasonable attorney's fees, interest and court costs; and B. Grant Plaintiff such other relief as may be appropriate. Count III (Breach of Guaranty - Tramer and Harding) 22. The allegations set forth in the foregoing paragraphs are incorporated by reference in this Count as if fully set forth herein. 23. On May 5, 2005, Tramer and Harding executed two Unconditional Guaranty Agreements (hereinafter collectively referred to as the "Guaranty") in favor of BB&T. Pursuant to the terms of the Guaranty, Tramer and Harding guaranteed AH&T's performance of its 5 obligations under the AH&T Note and AH&T Note 2. A true and accurate copy of the Guaranty is attached hereto as Exhibit 6 and is incorporated by reference herein. 24. Trainer and Harding reaffirmed their personal guarantees of AH&T's obligations to BB&T under the AH&T Note and AH&T Note 2. See, AH&T Modification at Exhibit 2, Second AH&T Modification at Exhibit 3 and AH&T Modification to Note 2 at Exhibit 5. 25. AH&T is in default under the terms of the AH&T Note and AH&T Note 2 for, . inter alia, failing to make payments when due. 26. BB&T is entitled to damages in the amount of Five Million Two Hundred Fifty Thousand Eight Hundred Fifty-Two and 95/100 Dollars ($5,250,852.95) against Trainer and Harding, jointly and severally, pursuant to the Guaranty. 27. Pursuant to the AH&T Note and AH&T Note 2, BB&T is entitled to recover all costs and expenses, including reasonable attorney's fees, incurred by BB&T to enforce its rights under the AH&T Note AH&T Note 2. 28. As a result of AH&T's default under the AH&T Note and AH&T Note 2, BB&T has suffered direct pecuniary damages. WHEREFORE, Plaintiff Branch Banking and Trust Company respectfully requests that this Court: A. Enter judgment in favor of Plaintiff Branch Banking and Trust Company and against Defendants Frank Trainer and Donald Harding, jointly and severally, as to Count III in the amount of Five Million Two Hundred Fifty Thousand Eight Hundred Fifty-Two and 95/100 Dollars ($5,250,852.95), reasonable attorney's fees, interest and court costs; and 6 i 1 B. Grant Plaintiff such other relief as may be appropriate. Respectfully submitted, SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A. By: Worthington H. Talcott, Jr. (Va. B 11921 Rockville Pike, Suite 300 Rockville, Maryland 20852-2743 TEL: (301) 230-5257 TEL: (301) 230-5231 Counsel for Branch Banking And Trust Company 7 EXHIBIT B CMS:: Main Case View Case Number: Grr Print MMn Case ir16';'" c . , Y) 1 ,;._ ' :CJCt4ii!4'v4?fF UhW. Main Case Parties Service Info Case Schedule Orders Related Cases CL82930 BRANCH BANKING AND TRUST COMPANY vs. AH AND T INVE -Case Information ............................................................... ....... Status: Open Begin Date: 7/102008 End Date: Case Type: Civil - Begin Code: B1 End Code: Complaint - (Miscellaneous) ................................................ Case Log information Page I of 1 Begin: 711012008 End: Location: FILERM Judge: MGO Reinstate Reinstate Date: End Date: Reinstate Reinstate Code: End Code: No Fifter j .......................... Date Description Log Code 2/3/2009 Term Day 2:00 PM System 9/5/2008 PLEA IN BAR AH&T, LLC 9/3/2008 ANSWER & GROUNDS OF DEFENSE D HARDING 8/11/2008 P/B -AH&T,LLC 8/11/2008 ANSWER & G/D -FRANK TRAMER 1 http://ccourt.pwcgov.org/maincaseinfocv.aspx 11/6/2008 Case Scheduler Page 1 of 1 Case Number: Gf Print ddlMn Case Fr4b .' .:< Main Case Parties Service Info Case Schedule Orders Related Cases CL82930 BRANCH BANKING AND TRUST COMPANY vs. AH AND T INVE Begin: 7/10/2008 End: Location: FILERM Judge: MGO Case Schedule ........................................................................................................................................................................................................................ http://ccourt.pwcgov.org/casescheduler.aspx 11/6/2008 CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Plaintiff's Response to Defendant's Preliminary Objections to Plaintiff's Complaint in Mortgage Foreclosure was served ?-day of November, 2008, via first class mail, postage prepaid on the following: this Jerry A. Weigle, Esq. 126 East King Street Shippensburg, Pa 17257 Joseph P. Ruane, Esq. 126 East King Street Shippensburg, Pa 17257 ?s/x Robert A. GrXci, Esq. {J 1239802.11 ?; ? ? _ ?? ?? ?? .xis-? ..?-' k w^? ." J?? ' ??: w J h ?? t ? .?' ?? "t PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. BRANCH BANKING AND TRUST IN THE COURT OF COMMON COMPANY, PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. CIVIL DIVISION AH&T INVESTMENTS, LLC., No. 08-5416 Defendant. 1. The matter to be argued is the Preliminary Objections filed on October 31, 2008 by Defendant AH&T Investments, LLC. 2. Attorneys who will argue cases: (a) for Plaintiff Branch Banking and Trust Company: Robert A. Graci, Esq. Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 (J1240124.1) (b) for Defendant AH&T Investments, LLC Jerry A. Weigle, Esq. or Joseph P. Ruane, Esq. 126 East King Street 126 East King Street Shippensburg, PA 17257 Shippensburg, PA 17257 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 3 2008 Respectfully submitted, Kobert A. Grdci, Esquire Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 Phone: 717.237.6000 Fax: 717.23 7.6019 E-mail: rgraci@eckertseamans.com Date: November/3, 2008 Attorneys for Plaintiff Branch Banking and Trust Company (J1240124.1) 2 CERTIFICATE OF SERVICE I hereby certify that a true copy of Plaintiffs Praecipe for Listing Case for Argument was served by first class, postage prepaid U.S. mail, addressed to the following counsel of record on this ? day of November, 2008. Jerry A. Weigle, Esq. 126 East King Street Shippensburg, PA 17257 Joseph P. Ruane, Esq. 126 East King Street Shippensburg, PA 17257 Attorneys for Defendant AH&T Investments, LLC Robert A. Graci, Esq. (J1240124.1) ?? ? -?.;? -" ?? ;? ;'?'=.v ?t f'?F d? ?-rr -..d. .? IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION No. 08-5416 Civil ORDER r2 y w AND NOW, this L? day of December, 2008, pursuant to Rule 1028(c)(5 of the Branch Banking and Trust Company Plaintiff V. AH&T Investments, LLC Defendant Cumberland County Rules of Procedure, the Defendant, AH&T Investments, LLC, through counsel, having filed Preliminary Objections to the Complaint in Mortgage Foreclosure filed by Plaintiff, Branch Banking and Trust Company, and the Defendant, having advised the Court, through counsel, that it was not filing a brief on the Preliminary Objections with the understanding that an Order would be entered denying the Preliminary Objections of the failure to file the brief as provided in Rule 1028(c)(5), it is hereby ORDERED, that the Preliminary Objections filed by Defendant are hereby DENIED and the Defendant is directed to file an Answer to the Complaint in Mortgage Foreclosure within ttir"'drdays of the date of this Order. tm 0 Iva a nS ` a yl ?J ij r 1 •y L?j ? Adf IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Branch Banking and Trust Company Plaintiff CIVIL DIVISION v No. 08-5416 Civil AH&T Investments, LLC Defendant SUGGESTION OF BANKRUPTCY PLEASE TAKE NOTICE that on December 23, 2008, Defendants AH&T Investments, LLC (the "Debtors"), through separate counsel, filed a Voluntary Petition for Relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 101 et. sea., in the United States Bankruptcy Court for the Eastern District of Virginia, at Bankruptcy Case No. 08-18034. A copy of the Notice of Bankruptcy Case Filing is attached hereto as Exhibit "A." Robert aci, squire I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101 Telephone: 717-237-6000 Facsimile: 717-237-6019 Peter N. Pross, Esquire I.D. No. 36890 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44th Floor Pittsburgh, PA 15219 Telephone: 412-566-5934 Facsimile: 412-566-6099 (L0370187.1) Date: January 9, 2009 Counsel for Plaintiff Branch Banking and Trust Company Exhibit A At lz/ 23/zO08 15:02 FAX Eastern District of Virginia - LIVE Open New Bankruptcy Case U.S. Bankruptcy Court Eastern District of Virginia _ Lice of Bankru tccy Case Filing Q002/002 Page 1 of 1 The following transaction was received from Young, David R. entered on 12/23/2008 at 1:48 PM EST and filed on 12/23/2008 Case Name: AH&T Investments, LLC Case Number: 08-1 $9M4 Document Number: 1 Docket Text: Voluntary Petition Under Chapter 11 Filed by David R. Young Jr. of Young & Ault on behalf of AH&T Investments, LLC: (Young, David) The following document(s) are associated with this transaction: Document description:Main Document Original #Rename:c:WAah&f*tition.pdf Electronic document Stamp: [STAMP VAEBStamp_ID=875559604 [Date=12/23/2008] [FileNumber=12225546-0 I(2b2blf8b7c749d906364a475892c6a27ab8bfDa86606820adbe47f2345d305cdalb b3c56d375890bla5cbef66019916a4de33c82edO47de6bl4a4e46dObbd4f1] 08-18034 Notice will be electronically mailed to: W. Clarkson McDow, Jr. ustpregionO4.ax.ecf@usdoj.gov David R. Young davidyounglaw@yahoo.com, davidyounglaw@yahoo.com 08-18034 Notice will not be electronically mailed to: file://(':\ECF\AH&T\Filed;Emerltency}1Ecf Receipt Case 2008-12-23W, 148pm.httn 12/23/2008 CERTIFICATE OF SERVICE I certify that on this day I served a copy of the foregoing Suggestion of Bankruptcy via via U.S. Mail, postage prepaid, addressed to: Jerry A. Weigle, Esq. 126 East King Street Shippensburg, PA 17257 Joseph P. Ruane, Esq. 126 East King Street Shippensburg, PA 17257 Attorneys for Defendant AH&T Investments, LLC 21,14 Date: January 9, 2009 Robert A. Grp6i, Esquire Counsel for Plaintiff Branch Banking and Trust Company .,vv ' ?.. ,o t) ?i .? ? J c N VIRGINIA: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST ) COMPANY ) Petitioner ) V. ) Case No.:08-5416 AH&T INVESTMENTS, LLC, et al. ) Respondents ) SUGGESTION OF BANKRUPTCY COMES NOW the Defendant, AH&T Investments, LLC , through his/her undersigned attorney, and would show the Court: 1. AH & T Investments, LLC has filed a petition for relief under Title 11, United States Code, in the United States Bankruptcy Court for the Eastern District of Virginia , which bears the case number. 08-18034 . 2. Relief was ordered on December 23, 2008. 3. This action is founded on a claim from which a discharge would be a release or that seeks to impose a charge on the property of the estate. 4. This is for informational purposes only, and does not constitute a notice of appearance by the undersigned. WHEREFORE, the defendant suggests that this action has been stayed by the operation of 11 U.S.C. § 362. David R. Young, Jr. Law Offices of David R. Young, Jr. 15 Loudoun Street, S.W., Suite C Leesburg, Virginia 20175 (703) 777-8824 phone (703) 286-7584 facsimile Counsel for Defendant CERTIFICATE OF SERVICE IT IS HERBY CERTIFIED that a copy of the foregoing Suggestion of Bankruptcy was delivered by first class postage paid mail to BB&T c/o , this /. day of January 2009. Robert A. Graci, Esq. Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 And Peter N. Pross, Esq. Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 David R. Youn r. Ail r N ccf?, :X Z45 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST CIVIL DIVISION COMPANY, No. 08-5416 V. Plaintiff, MOTION FOR ENTRY OF CONSENT IN REM JUDGMENT IN MORTGAGE FORECLOSURE AH&T INVESTMENTS, LLC, Filed on behalf of Plaintiff, Branch Banking Defendant. and Trust Company Counsel of Record for this Party: Robert A. Graci, Esq. Pa. I.D. #26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6000 (717) 237-6019 facsimile and Peter N. Pross, Esq. Pa. I.D. #36890 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street 44th Floor Pittsburgh, PA 15219 (412) 566-5934 (412) 566-6099 facsimile IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION Plaintiff, No. 08-5416 v. AH&T INVESTMENTS, LLC, Defendant. MOTION FOR ENTRY OF CONSENT IN REM JUDGMENT IN MORTGAGE FORECLOSURE Plaintiff Branch Banking & Trust Company ("Plaintiff'), by its attorneys, Eckert Seamans Cherin & Mellott, LLC files this Motion for Entry of Consent in Rem Judgment in Mortgage Foreclosure pursuant to Pa.R.C.P. 1037(c) and avers as follows: 1. On September 11, 2008, Plaintiff filed its Complaint in Mortgage Foreclosure (the "Complaint";) in the above referenced case against Defendant AH&T Investments, LLC ("Defendant"). 2. The Complaint seeks the foreclosure and sale of Defendant's real property consisting of parcels containing 62.33133 acres, more or less, situate partly in Southampton Township and partly in Shippensburg Township, Cumberland County, Commonwealth of Pennsylvania (the "Mortgaged Premises"). 3. On October 30, 2008, Defendant filed Preliminary Objections to the Complaint. 4. On November 13, 2008, Plaintiff filed a Response to Defendant's Preliminary Objections. 5. On December 3, 2008, the Honorable Edgar B. Bayley, President Judge of this Honorable Court, entered an Order denying the Preliminary Objections and directing Defendant to file an answer to the Complaint within twenty (20) days. 6. On December 23, 2008, Defendant filed a petition for relief under Title 11, United States Code, in the United States Bankruptcy Court for the Eastern District of Virginia at Bankruptcy Case No. 08-18034 SSM (the "Bankruptcy Court") 7. On or about January 6, 2009, Defendant filed a Suggestion of Bankruptcy with this Honorable Court. 8. On March 24, 2009, the Bankruptcy Court entered a Consent Order Modifying Automatic Stay as to Debtor and its Real Property (the "Bankruptcy Consent Order"). A true and correct copy of the Bankruptcy Consent Order, as docketed, is attached as Exhibit "A". 9. Pursuant to paragraph 7 of the Bankruptcy Consent Order, Defendant has consented to a non-appealable judgment in mortgage foreclosure with respect to the Mortgaged Premises. A true and correct copy of the Consent in Rem Judgment in Mortgage Foreclosure signed by Defendant is attached as Exhibit "B". 10. Pursuant to Paragraph 7 of the Bankruptcy Consent Order, Plaintiff is entitled to request that the Consent in Rem Judgment in Mortgage Foreclosure be entered by this Honorable Court. 11. Pursuant to paragraph 7 of the Bankruptcy Consent Order, the foreclosure sale of the Mortgaged Premises shall not occur before August 17, 2009. 12. Pursuant to Rule 208.2(d) of the Cumberland County Rules of Procedure, concurrence in this motion was sought from counsel for the Defendant, Jerry A. Weigle, Esquire, who concurred in its filing and the relief sought as reflected in the Bankruptcy Consent Order as set forth above. WHEREFORE, Plaintiff Branch Banking and Trust Company moves this Honorable Court to enter the attached Consent in Rem Judgment in Mortgage Foreclosure. y)submitted, Robert A. ci, Esquire Pa. I.D. #26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6000 (717) 237-6019 facsimile and Peter N. Pross, Esquire Pa. I.D. 936890 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44`h Floor Pittsburgh, PA 15219 (412) 566-5934 (412) 566-6099 facsimile Attorneys for Plaintiff Branch Banking & Trust Co. Date: April J, 2009 EXHIBIT A Case 08-18034-SSM Doc 39 Filed 03/24/09 Entered 03/24/09 17:22:32 Desc Main Document Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF VIRGINIA (Alexandria Division) IN RE: AH&T INVESTMENTS, LLC Debtor BRANCH BANKING AND TRUST COMPANY Movant V. AH&T INVESTMENTS, LLC Respondent Case No. 08-18034 SSM Chapter 11 CONSENT ORDER MODIFYING AUTOMATIC STAY AS TO DEBTOR AND ITS REAL PROPERTY Upon consideration of the Motion for Relief from the Automatic Stay (the "Motion") tiled herein by Branch Banking and Trust Company, successor by merger to Branch Banking and Trust Company of Virginia ("Movant"), the consent of the Debtor hereto, and it appearing that cause exists to grant the relief requested, it is by the Court hereby ORDERED: The automatic stay of I I U.S.C. Section 362(a) is modified pursuant to I 1 U.S.C. Section 362(d), as hereinafter set forth. 2. Movant shall take no further action against the Debtor, the guarantors of the debt owed to the Movant (the "Guarantors") or the property that is described in the Motion (the "Property") until August 15, 2009. 3. If the Debtor has not repaid the Movant in full on or before August 15, 2009, either through a sale of the Property or otherwise, then without further order of this Court, the Movant shall be entitled to exercise all of its legal and contractual remedies under the loan documents and at law against the Debtor, the Property and the Guarantors. Case 08-18034-SSM Doc 39 Filed 03/24/09 Entered 03/24/09 17:22:32 Desc Main Document Page 2 of 4 4. The Movant is hereby authorized to make or order any repairs necessary to retain the value of the Property, which expenses, if paid by the Movant, shall be added to the indebtedness owed by the Debtor to the Movant and, to the extent necessary, the Movant is authorized to execute any documents required by the local authorities where the Property is located. Upon entry of this Order, the Debtor shall provide the Movant with a set of keys to the unoccupied units at the Property which units the Movant may enter upon 24 hours notice to the Debtor for the purpose of inspection and protection of the Property. 5. Within 5 business days after any request by Movant, Debtor agrees to execute any documents required by any local government authority for acceptance of streets and any other improvements related to the Property. 6. The Debtor agrees to deliver to the Movant copies of any current leases at the Property and all rent proceeds, if any, shall be turned over to the Movant. The Debtor agrees not to: extend any existing lease, if any; to lease any currently unoccupied unit; or to allow anyone to occupy an unoccupied unit at the Property. 7. The Debtor hereby consents to a non appealable judgment in the foreclosure action currently pending in Cumberland County, Pennsylvania, which judgment may be entered upon entry of this order, with a foreclosure sale not to occur before August 17, 2009 and the automatic stay is modified to allow the litigation involving South Central Home Settlement, Inc. and AH&T Investments, LLC to proceed. 8. Until the later of the date the Property is sold or August 17, 2009, the Debtor shall maintain an insurance policy on the Property and shall ensure that all utilities are maintained. 9. The terms of this Order shall ensure to the benefit of Movant's successors and assigns and shall survive the conversion of this case to a case under a different chapter and shall be binding on the Debtor, any trustee appointed in this case and the Property. Case 08-18034-SSM Doc 39 Filed 03/24/09 Entered 03/24/09 17:22:32 Desc Main Document Page 3 of 4 Mar 24 2009 Dated: _ 1 2009 WE ASK FOR THIS: BY THE COURT: /s/ Stephen S. Mitchell UNITED STATES BANKRUPTCY JUDGE Entered on the docket Mar 24 2009 /s/ Matthew M. Moore Matthew M. Moore (VSB No. 44953) Michael J. Lichtenstein Shulman, Rogers, Ganda], Pordy & Ecker, P.A. 1 1921 Rockville Pike, Third Floor Rockville, Maryland 20852-2743 TEL: (')01)230-5200 Counsel for Branch Banking and Trust Company SEEN AND AGREED: /s/ David R. Young. Jr David R. Young, Jr. (VSB No. 20127) Law Offices of David R. Young, Jr. 15 Loudoun Street, S.W., Suite C Leesburg, Virginia 20175 TEL: (703) 777-8824 Counsel for the Debtor LOCAL RULE 9022-1(C) CERTIFICATION The foregoing Consent Order was endorsed by and/or served upon all necessary parties pursuant to Local Rule 9022-1(C). /s/ Matthew M. Moore Matthew M. Moore Case 08-18034-SSM Doc 39 Filed 03/24/09 Entered 03/24/09 17:22:32 Desc Main Document Page 4 of 4 PARTIES TO RECEIVE COPIES: Michael J. Lichtenstein, Esquire Matthew Moore., Esquire Shulman, Rogers, Gandal, Pordy & Ecker, P.A. H 921 Rockville Pike, Suite 300 Rockville, MD 20852 David R. Young, Jr. Esquire Law Offices of David R. Young, Jr. 15 Loudoun St., S.W., Suite C Leesburg, VA 20175 AH&T Investments, LLC 15051 Taylors Mill Place Haymarket VA 20169 Frank Tramer c/o AH&T Investments, LLC 15051 Taylors Mill Place Haymarket, VA 20169 W. Clarkson McDow, Jr., Esquire Office of the U.S. Trustee 115 South Union Street Alexandria, VA 22314 13331 Apgar Place Herndon, Virginia 20180 EXHIBIT B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION Plaintiff, No. 08-5416 V. AH&T INVESTMENTS, LLC, Defendant. CONSENT IN REM JUDGMENT IN MORTGAGE FORECLOSURE AND NOW, this day of , 2009, upon consent of Defendant AH&T Investments, LLC ("Defendant"), it is hereby ORDERED, ADJUDGED and DECREED that an in rem judgment be entered in favor of Plaintiff Branch Banking & Trust Company ("Plaintiff') and against the Defendant for foreclosure and sale of the mortgaged real property of Defendant consisting of 3 parcels containing 62.33133 acres, more or less, situate partly in Southhampton Township and partly in Shippensburg Township, Cumberland County, Commonwealth of Pennsylvania (the "Mortgaged Premises"). The Prothonotary is hereby directed to enter an in rem judgment in the amount of $5,293,257.69 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees, and for foreclosure and sale of the Mortgaged Premises, all as demanded in Plaintiff's Complaint in Mortgage Foreclosure. BY THE COURT Judge Consented to: AH&T INVESTMENTS, LLC ra?Tramer, anager CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Motion for Entry of rk Consent in Rem Judgment in Mortgage foreclosure was served this day of April, 2009 via first class mail, postage prepaid on the following: Jerry A. Weigle, Esquire Weigle & Associates, PC 236 East King Street Shippensburg, PA 17257 David R. Young, Jr., Esquire Law Offices of David R. Young, Jr. 125 Loudoun Street, S. W., Suite C Leesburg, VA 20175 Robert A. Graci, Esquire 7y APR 0 9 20090 - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION Plaintiff, V. AH&T INVESTMENTS, LLC, Defendant. CONSENT IN RE AND NOW, this 13 da 2009, upon consent of Defendant AH&T Investments, LLC ("Defendant"), it is hereby ORDERED, ADJUDGED and DECREED that an in rem judgment be entered in favor of Plaintiff Branch Banking & Trust Company ("Plaintiff ') and against the Defendant for foreclosure and sale of the mortgaged real property of Defendant consisting of 3 parcels containing 62.33133 acres, more or less, situate partly in Southhampton Township and partly in Shippensburg Township, Cumberland County, Commonwealth of Pennsylvania (the "Mortgaged Premises"). The Prothonotary is hereby directed to enter an in rem judgment in the amount of $5,293,257.69 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees, and for foreclosure and sale of the Mortgaged Premises, all as demanded in Plaintiff's Complaint in Mortgage Fo=COURX BY T Consented to: AH&T INVESTMENTS, LLC rank Tramer, Manager No. 08-5416 lk=:il , %? . , Judge CIS J r •'! 1 i?l.? , w I Copies to: Robert A. Graci, Esquire Peter N. Pross, Esquire Jerry A. Weigle, Esquire David R. Young, Jr., Esquire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION Plaintiff, V. No. 08-5416 AH&T INVESTMENTS, LLC, Defendant. NOTICE OF ENTRY OF CONSENT IN REM JUDGMENT IN MORTGAGE FORECLOSURE TO: AH&T Investments, LLC, Defendant You are hereby notified that on August /,f , 2009, the following consent in rem judgment in mortgage foreclosure has been entered against you in the above-captioned case: Consent in rem judgment in favor of Plaintiff Branch Banking & Trust Company and against Defendant AH&T Investments, LLC in the amount of $5,293,257.69 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees, and for foreclosure and sale of the Mortgaged Premises described in Plaintiff's Complaint inMortgage Foreclosure. Prot notary I hereby certify that the name and address of the proper persons to receive notice is: Frank Trainer, Manager Jerry A. Weigle, Esq. AH&T Investments, LLC Weigle & Associates, P.C. 15051 Taylors Mill Place 236 East King Street Haymarket, VA 20169-1034 Shippensburg, PA 17257 Counsel of record for AH&T Investments, LLC e- IV, Peter N. Pross Attorney for Plaintiff ;J 1317212.1; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION No. 08-5416 Defendant. PRAECIPE FOR ENTRY OF CONSENT IN REM JUDGMENT IN MORTGAGE FORECLOSURE Filed on Behalf of Plaintiff, BRANCH BANKING AND TRUST COMPANY Counsel of Record for This Party: Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. T.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 44`h Floor, U.S. Seel Tower 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 (412) 566-6099 facsimile and Robert A. Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 (717) 237-6019 facsimile Counsel for Plaintiff V. Plaintiff, AH&T INVESTMENTS, LLC, ;.11317212.1; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, CIVIL DIVISION V. No. 08-5416 AH&T INVESTMENTS, LLC, Defendant. PRAECIPE FOR ENTRY OF CONSENT IN REM JUDGMENT IN MORTGAGE FORECLOSURE To the Prothonotary: Pursuant to the Order of Court dated April 13, 2009 (Exhibit "A"), kindly enter a consent in rem judgment in mortgage foreclosure in favor of Plaintiff Branch Banking & Trust Company ("Plaintiff') and against the Defendant AH&T Investments, LLC in the amount of $5,293,257.69 with interest thereon from August 10, 2008, plus costs and reasonable attorney's fees, and for foreclosure and sale of the Mortgaged Premises described in Plaintiff's Complaint in Mortgage Foreclosure. Dated: August 18, 2009 Respectfully submitted, Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44`h Floor Pittsburgh, PA 15219 (412) 566-6000 (412) 566-6099 Facsimile and ;J1317212.11 Robert A.Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 (717) 237-6019 facsimile Attorneys for Plaintiff ;11317212.1; 2 EXHIBIT A X31317212.1) APR 0 9 2009 ,?, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, V. AH&T INVESTMENTS, LLC, Defendant. CONSENT IN REM JU AND NOW, this 0- day of J CIVIL DIVISION No. 08-5416 2009, upon consent of Defendant AH&T Investments, LLC ("Defendant'), it is hereby ORDERED, ADJUDGED and DECREED that an in rem judgment be entered in favor of Plaintiff Branch Banking & Trust Company ("Plaintiff) and against the Defendant for foreclosure and sale of the mortgaged real property of Defendant consisting of 3 parcels containing 62.33133 acres, more or less, situate partly in Southhampton Township and partly in Shippensburg Township, Cumberland County, Commonwealth of Pennsylvania (the "Mortgaged Premises"). The Prothonotary is hereby directed to enter an in rem judgment in the amount of $5,293,257.69 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees, and for foreclosure and sale of the Mortgaged Premises, all as demanded in Plaintiff's Complaint in Mortgage Foreclosure. BY THE COURT 4 (11 Lh-1Judge Consented to: AH&T INVESTMENTS, LLC rank Tramer, Manager 1 CERTIFICATE OF SERVICE It is hereby certified that true and correct copies of the foregoing PRAECIPE FOR ENTRY OF CONSENT IN REM JUDGMENT IN MORTGAGE FORECLOSURE were served this Li7xy of August, 2009, by first class U.S. Mail upon the following: Frank Tramer, Manager AH&T Investments, LLC 15051 Taylors Mill Place Haymarket, VA 20169-1034 David R. Young, Jr., Esq. Law Offices of David R. Young, Jr. 125 Loudoun Street, SW, Suite C Leesburg, VA 20175 Jerry Weigle, Esq. Weigle & Associates, PC 236 East King Street Shippensburg, PA 17257 /?? 4/ Peter N. Pross Attorney for Branch Banking & Trust Co. ;.11317212.1 i ; FILED-4:F OF THE PR+ T- ,-Y'OTARY 2009 AUG 19 AM !Q: U 7 l )w 6,* 9 Iy: vo C&- 3,Fs si o IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST ) CIVIL DIVISION COMPANY, ) No. 08-5416 Plaintiff, ) } PRAECIPE FOR WRIT OF EXECUTION V. ) - MORTGAGE FORECLOSURE } AH&T INVESTMENTS, LLC, ) Defendant. ) Filed on Behalf of Plaintiff, BRANCH BANKING AND TRUST COMPANY Counsel of Record for This Party: Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 44th Floor, U.S. Steel Tower 600 Grant Street Pittsburgh, Pennsylvania 15219 } (412) 566-6000 (412) 566-6099,facsimile and Robert A. Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 (717) 237-6019 facsimile Counsel for Plaintiff J 1346756. I ; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION Plaintiff, V. No. 08-5416 AH&T INVESTMENTS, LLC, Defendant. PRAECIPE FOR WRIT OF EXECUTION - MORTGAGE FORECLOSURE To the Prothonotary: Kindly issue a Writ of Execution on Consent in Rem Judgment in Mortgage Foreclosure with respect to the above-referenced action, directed to the Sheriff of Cumberland County, Pennsylvania; 2. against AH&T Investments, LLC 15051 Taylors Mill Place Haymarket, VA 20169-1034 3. to levy upon and sell that certain tract of land situate partly in Southampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania and more fully described on the attached Exhibit «A"; 5. In the amount of: Judgment amount $5,293,257.69 Plus interest from 8/10/08 to 12/9/091 Plus reasonable attorney's fees and costs Total $5,293,257.69 ' The judgment amount includes unpaid interest through August 10, 2008. The anticipated sale date is December 9, 2009. Plaintiff will file a Petition to Reassess Damages and to Modify Judgment to update the amount of unpaid interest and to include Plaintiff's reasonable attorney's fees and costs.. J1306756.1; Dated: August 17, 2009 ,J M6756. I Respectfully submitted, /V Peter . Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44th Floor Pittsburgh, PA 15219 (412) 566-6000 (412) 566-6099 Facsimile and Robert A.Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 (717) 237-6019 facsimile Attorneys for Plaintiff 2 EXHIBIT A Description of Property ALL THAT certain tract of land situate partly in Southampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania. Being Phases 1, 2 and 3. Final Land Subdivision and Development Plan for Meadowsgreen Development, Plan Book 92-123. Also known as Lot 6. Land Subdivision Plan for Frank E. Hollar, Jr. Estate, Plan Book 90-71. Tract of land containing 62.33133 Acres, more or less Being the same real estate that The Estate of Frank E. Hollar, Jr., by its deed dated May 5, 2005 and recorded in Cumberland County Deed Book 268, page 4069, conveyed to AH&T Investments, LLC. Excepting therefrom the property described in the following deeds recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania Deed Book 277-3054 (Lot C12) Deed Book 278-210 (Lot C 16) Deed Book 278-216 (Lot C 11) Deed Book 278-1762 (Lot C13) Deed Book 278-1960 (Lot C 15) Deed Book, 278-1964 (Lot B37) Deed Book 278-3834 (Lot B35) Deed Book 278-4233 (Lot 1336) Deed Book 279-357 (Lot B38) Deed Book 279-464 (Lot C 19) Deed Book 279-556 (Lot C14) Deed Book 279-559 (Lot B34) Deed Book 279-1318 (Lot B33) Deed Book 280-3354 (Lot C17) Instrument Number 2007-37928 (Lot 132) Instrument Number 2007-38813 (Lot C8) ;11306756.1; CERTIFICATE OF SERVICE It is hereby certified that true and correct copies of the foregoing PRAECIPE FOR WRIT OF EXECUTION were served this nAy of August, 2009, by first class U.S. Mail upon the following: Frank Tramer, Manager AH&T Investments, LLC 15051 Taylors Mill Place Haymarket, VA 20169-1034 David R. Young, Jr., Esq. Law Offices of David R. Young, Jr. 125 Loudoun Street, SW, Suite C Leesburg, VA 20175 Jerry Weigle, Esq. Weigle & Associates, PC 236 East King Street Shippensburg, PA 1725? /:? /1/, /'/t"? Peter N. Pross Attorney for Branch Banking & Trust Company tom. za 938oZ- 7 k. Sb Pd. ,tLf• u-o , 40 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, V. AH&T INVESTMENTS, LLC, Defendant. CIVIL DIVISION No. 08-5416 AFFIDAVIT PURSUANT TO PA. R.C.P. RULE 3129.1 Filed on Behalf of Plaintiff, BRANCH BANKING AND TRUST COMPANY Counsel of Record for This Party: Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 44th Floor, U.S. Steel Tower 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 (412) 566-6099 facsimile and Robert A. Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 (717) 237-6019 facsimile Counsel for Plaintiff ;,11307551.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, CIVIL DIVISION V. No. 08-5416 AH&T INVESTMENTS, LLC, Defendant. AFFIDAVIT PURSUANT TO PA R.C.P. RULE 3129.1 COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF ALLEGHENY ) BRANCH BANKING AND TRUST COMPANY, Plaintiff in the above action, sets forth as of the date the Praecipe for Writ of Execution - Mortgage Foreclosure was filed, the following information concerning the real property of Defendant AH&T INVESTMENTS, LLC, situate partly in Southhampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania, being Phases 1,2 and 3. Final Land Subdivivion and Development Plan for Meadowsgreen Development, Plan Book 92-123, and more particularly described on the attached Exhibit "A": 1. The name and addresses of the owners or the reputed owners: AH&T Investments, LLC 15051 Taylors Mill Place Haymarket, VA 20169-1034 AH&T Investments, LLC c/o Jerry A. Weigle, Esq. Weigle & Associates, PC 236 East King Street Shippensburg, PA 17257 AH&T Investments,LLC c/o David R. Young, Jr., Esq. Law Offices of David R. Young, Jr. 125 Loudoun Street, SW Suite C Leesburg, VA 20175 ;,11307551.1 : r 2. The name and addresses of the Defendant in the judgment: AH&T Investments, LLC 15051 Taylors Mill Place Haymarket, VA 20169-1034 AH&T Investments, LLC c/o Jerry A. Weigle, Esq. Weigle & Associates, PC 236 East King Street Shippensburg, PA 17257 AH&T Investments,LLC c/o David R. Young, Jr., Esq. Law Offices of David R. Young, Jr. 125 Loudoun Street, SW Suite C Leesburg, VA 20175 3. The name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Branch Banking and Trust Company Pennsy Supply, Inc 200 West Second Street 1001 Paxton Street Third Floor, Legal P.O. Box 3331 Winston Salem, NC 27101 Harrisburg, PA 17105 4. The name and address of the last record holder of every mortgage of record: Branch Banking and Trust Company 200 West Second Street Third Floor, Legal Winston Salem, NC 27101 5. The name and address of every person who has any record lien on the property: None 6. The names and addresses of every other person who has any record interest in the property and whose interest may be affected by the sale: None 7. The names and addresses of every other person whom Plaintiff has knowledge who has any interest in the property which may be affected by the sale: J 1307551.1 2 Cumberland County Tax Claim 1 Courthouse Square Carlisle, PA 17013-3387 Cumberland Franklin Joint Municipal Authority 725 Municipal Drive Shippensburg, PA 17257 James Robinson, Esq. Authority-Solicitor Cumberland-Franklin Joint Municipal Authority 28 South Pitt Street Carlisle, PA 17013 Thomas Lion 119 Black Bird Lane Shippensburg, PA 17257 Todd E. Mummert 119 Black Bird Lane Shippensburg, PA 17257 Paul S. Bawice 119 Black Bird Lane Shippensburg, PA 17257 Barry L. Negley, Tax Collector, Shippensburg Twp. 2 Patridge Trail Shippensburg, PA 17257 Vivian F. Coy, Tax Collector, Southampton Twp. 200 Airport Road Shippensburg, PA 17257 W. Scott Henning, Esq. Attorney for Pennsy Supply, Inc. Hendler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Pennsy Supply, Inc. 1001 Paxton Street P.O. Box 3331 Harrisburg, PA 17105 ;J)307551.11 3 i I verify that the statements made in this Affidavit are true and correct to the best of my personal knowledge, information and belief I understand that false statements herein are made subject to the penalties of 18 Pa. Stat. Ann. § 4904 relating to the unsworn falsification to authorities. Sworn to and subscribed Before me this // day of .2009. Notary Public .[ 1307» 1.1 } Peter N. Pross Attorney for Plaintiff COMMONWEALTH OF PENNSYLVANIA Notarial Seal Geraldine C. Allison, Notary Public City Of Pittsburgh, Ail gheny County My COfnS?±iegir,tt i-T's'fc,r r??;pt. 10, ?Q03 Member 4 ?{l.?G?.???=fir E OF THE V 0 P(`IIIJTARY 2069 AUG 19 AM 10: 3 5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST ) CIVIL DIVISION COMPANY, ) No. 08-5416 Plaintiff, ) V. ) NOTICE OF SHERIFF'S SALE OF REAL ESTATE AH&T INVESTMENTS, LLC, ) Defendant. ) Filed on Behalf of Plaintiff, BRANCH BANKING AND TRUST COMPANY Counsel of Record for This Party: Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 44`h Floor, U.S. Steel Tower 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 (412) 566-6099 facsimile and } Robert A. Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 (717) 237-6019 facsimile Counsel, for Plaintiff ?31307327.1i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, CIVIL DIVISION V. No. 08-5416 AH&T INVESTMENTS, LLC, Defendant. NOTICE OF SHERIFF'S SALE OF REAL ESTATE To: DEFENDANT AND ALL OTHER INTERESTED PERSONS OR PARTIES TAKE NOTICE that by virtue of a Writ of Execution issued out of the Court of Common Pleas of Cumberland County, Pennsylvania and to the Sheriff of Cumberland County directed, there will be exposed to Public Sale in the Cumberland County Courthouse, I Courthouse Square, Carlisle, Pennsylvania, on December 9, 2009 at 10:00 a.m, the following described real estate of which the Defendant is the owner or reputed owner: ALL THAT certain tract of land situate partly in Southampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania. Being Phases 1, 2 and 3. Final Land Subdivision and Development Plan for Meadowsgreen Development:, Plan Book 92-123. Also known as Lot 6. Land Subdivision Plan for Frank E. Hollar, Jr. Estate, Plan Book 90-71. Tract of land containing 62.33133 Acres, more or less Being the same real estate that The Estate of Frank E. Hollar, Jr., by its deed dated May 5, 2005 and recorded in Cumberland County Deed Book 268, page 4069, conveyed to AH&T Investments, LLC. Excepting therefrom the property described in the following deeds recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania: Deed Book 277-3054 (Lot C12) Deed Book 278-216 (Lot C 11) Deed Book 278-1960 (Lot C15) Deed Book 278-3834 (Lot B35) Deed Book 279-357 (Lot B38) Deed Book 278-210 (Lot C16) Deed Book 278-1762 (Lot C13) Deed Book, 278-1964 (Lot B37) Deed Book 278-4233 (Lot B36) Deed Book 279-464 (Lot C 19) .11307327.1 ; Deed Book 279-556 (Lot C14) Deed Book 279-1318 (Lot B33) Instrument Number 2007-37928 (Lot 132) Deed Book 279-559 (Lot B34) Deed Book 280-3354 (Lot C17) Instrument Number 2007-38813 (Lot C8) Said Writ of Execution has been issued on a judgment in the mortgage foreclosure action of Branch Banking and Trust Company v. AH&T Investments LLC in the amount of $5,293,257.69 plus interest from August 10, 2008 and reasonable attorneys' fees and costs. Claims against the property must be filed at the Office of the Sheriff before the above sale date. Claims to proceeds must be made at the Office of the Sheriff before distribution. Schedule of distribution will be filed at the Office of the Sheriff no later than thirty (30) days from the sale date. Exceptions to distribution or a petition to set aside the sale must be filed at the Office of the Sheriff no later than ten (10) days from the date when scheduled distribution is filed in the Office of the Sheriff. Attached hereto is a copy of the Writ of Execution that has been issued because there is a judgment against you. It may cause your property to be held or taken to pay the judgment. You may have legal rights to prevent your property from being taken. 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 NOTICE AND THE WRIT OF EXECUTION TO A 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 ADVICE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 You may have legal rights to prevent the Sheriffs sale and the loss of your property. In order to exercise those rights., prompt action on your part is necessary. In order to prevent or delay the Sheriff s sale by filing, before the sale occurs, a petition to open or strike the judgment or a petition to stay the execution. If the judgment is entered because you did not file with the court any defense or objection, you might have the right to have the judgment opened if you promptly file a petition with the court alleging a valid defense and reasonable excuse for failing to file the defense on time. If the judgment is opened, the Sheriffs Sale would ordinarily be delayed pending a trial on the issue if referenced plaintiff had a valid claim to the legal judgment. You may also have the right to have the judgment stricken if the Sheriff has not made a valid return of service of the Complaint and Notice to Defend or if the judgment was entered before twenty (20) days after service or in certain other events. To exercise this right, you will have to file a petition to strike the judgment. 111307327.1; 2 l? You may also have the right to petition the court to stay or delay the execution in the Sheriff's sale if you can show a defect in the Writ of Execution of Service or demonstrate a legal equitable right. YOU MAY ALSO HAVE THE RIGHT TO HAVE THE SHERIFF'S SALE SET ASIDE IF THE PROPERTY IS SOLD FOR A GROSSLY INADEQUATE PRICE OR, IF THERE ARE DEFECTS IN THE SHERIFF'S SALE. TO EXERCISE THIS RIGHT, YOU SHOULD FILE A PETITION WITH THE COURT AFTER THE SALE AND BEFORE THE SHERIFF HAS DELIVERED THE DEED TO THE PROPERTY. THE SHERIFF WILL DELIVER THE DEED IF NO PETITION TO SET ASIDE THE SALE IS FILED WITHIN TEN (10) DAYS FROM THE DATE WHEN THE SCHEDULE OF DISTRIBUTION IS FILED IN THE OFFICE OF THE SHERIFF. Dated: August 17, 2009 r?Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 44th Floor, U.S. Steel Tower 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 (412) 566-6099 Facsimile and Robert A.Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 (717) 237-6019,facsimile Attorneys for Plaintiff t J 1307327.1 ; 3 OF TNF P;: T : 2009 AUG 19 AM !G: ^ J CUMi` i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION No. 08-5416 Plaintiff, V. AFFIDAVIT OF COMPLIANCE WITH ACT 6 AND 91 AH&T INVESTMENTS, LL C, Defendant. Filed on Behalf of Plaintiff, BRANCH BANKING AND TRUST COMPANY Counsel of Record for This Party: Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 44'h Floor, U.S. Steel Tower 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 (412) 566-6099 facsimile and Robert A. Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 .I 1309000A } (717) 237-6019 facsimile Counsel for Plaintiff 0 f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL DIVISION V. No. 08-5416 BRANCH BANKING AND TRUST COMPANY, AH&T INVESTMENTS, LLC, Defendant. AFFIDAVIT OF COMPLIANCE WITH ACT 6 AND 91 COMMONWEALTH OF PENNSYLVANIA ) j ss: COUNTY OF ALLEGHENY ) BRANCH BANKING AND TRUST COMPANY, Plaintiff in the above action, sets forth that it has complied with all provisions of Acts 6 and 91, as follows: For the following reasons, Plaintiff was not required to send Defendant written notices pursuant to Act 6, 41 P.S. Section 101 et seq. and Act 91, 35 P.S. § 1680.401, et seq.: 1. The original principal amounts of the loans secured by Plaintiff's mortgages were in excess of $50,000. 2. The real property involved is not the principal residence of the Defendant. 3. The real property involved is not a one or two family owner-occupied residence. I verify that the statements made in this Affidavit are true and correct to the best of my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. Stat. Ann. § 4904 relating the unsworn falsification to authorities. 12& /'. P'400a?--- Peter N. Pross Attorney for Plaintiff Sworn to and subscribed Before me this / ? day of _?uy psi , 2009. Notary Public COMMONWEALTH OF PENNSYLVANIA My commission expires: Notarial Seal Geraldine C Allison: Notary Public City of PittsN 111E*0heny County ;.11308000.1: MyC:cmm;ss. r_? > r.1G',2009 ALEC '0F ICE" OF THEM PR,-) Ii-;?!7, 2099 AUI 19 AM 10: 3 5 It.2,\ WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) N008-5416 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due BRANCH BANKING AND TRUST COMPANY Plaintiff (s) From AH&T INVESTMENTS LLC 15051 TAYLORS MILL PLACE HAYMARKET, VA 20169-1034 (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 $ 5,293,257.69 Interest FROM 8/10/08 TO 12/09/09 Atty's Comm % Atty Paid $ 172.00 Plaintiff Paid Date: August 19, 2009 L.L.$0.50 Due Prothy $2.00 Other Costs C s . Long, Pro (Seal) REQUESTING PARTY: Name PETER N PROSS ESQ ECKERT SEAMANS CHERIN & MELLOTT, LLC Address: 44TH FL, U S STEEL TOWER 600 GRANT STREET PITTSBURGH, PA. 15219 Attorney for: PLAINTIFF Telephone: (412)0566-6000 Supreme Court ID No. 36890 By: Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, V. AH&T INVESTMENTS, LLC, CIVIL DIVISION No. 08-5416 MOTION FOR AN ORDER REQUIRING THIRD PARTY BIDDERS TO REPLACE LETTERS OF CREDIT ISSUED BY PLAINTIFF Defendant. Filed on behalf of Plaintiff, Branch Banking and Trust Company Counsel of Record for this Party: Robert A. Graci, Esq. Pa. I.D. #26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6000 (717) 237-6019 facsimile and Peter N. Pross, Esq. Pa. I.D. #36890 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street 44th Floor Pittsburgh, PA 15219 (412) 566-5934 (412) 566-6099 facsimile {]1341974.1) BRANCH BANKING AND TRUST COMPANY, Plaintiff, V. AH&T INVESTMENTS, LLC, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO. 08-5416 MOTION FOR AN ORDER REQUIRING THIRD PARTY BIDDERS TO REPLACE LETTERS OF CREDIT ISSUED BY PLAINTIFF Plaintiff, Branch Banking and Trust Company, by its attorneys, Eckert Seamans Cherin & Mellott, LLC, files this Motion for an Order Requiring Third Party Bidders to Replace Letters of Credit Issued by Plaintiff, and avers as follows: 1. Plaintiff Branch Banking and Trust Company ("Plaintiff') is a North Carolina banking corporation and successor by merger to Branch Banking and Trust Company of Virginia. Plaintiff has its principal place of business at 200 West Second Street, Third Floor, Legal, Winston Salem, North Carolina 27101. 2. Defendant AH&T Investments, LLC ("Defendant") is a Virginia limited liability company with its principal place of business at 15051 Taylors Mill Place, Haymarket, Virginia 20169. 3. The Defendant is the owner of a certain tract of land containing 62.33133 acres, more or less, situate partly in Southhampton Township and partly in Shippensburg Township, Cumberland County, Pennsylvania, being Phases 1, 2 and 3 of the Final Land (J1341974.1) Subdivision and Development Plan for Meadowsgreen Development Plan, Book 92-123 (the "Property". 4. On or about May 5, 2005, Plaintiff lent $5,792,530 to Defendant for the purpose of purchasing and developing the Property. Plaintiff's loans were evidenced by a Mortgage Note in the original principal amount of $2,792,530 (the "$2,792,530 Note") and a Mortgage Note in the original principal amount of $2,000,000 (the "$2,000,000 Note").' 5. The Notes are secured by, inter alia, a first lien position, purchase money mortgage and by a second lien position, purchase money mortgage against the Property (the "Mortgages" ).2 6. The Notes and the Mortgages were modified pursuant to three (3) Allonges and Modification Agreements between Plaintiff and Defendant (the "Allonges").3 7. Additionally, Plaintiff has extended credit to the Defendant in the form of various irrevocable letters of credit issued by Plaintiff in connection with Defendant's development and improvement of the Property (the "Letters of Credit"). 8. On September 11, 2008, Plaintiff filed its Complaint which sought a judgment in mortgage foreclosure in the amount of $5,293,257.69 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees. 9. As of the filing of the Complaint, none of the Letters of Credit had been presented to Plaintiff for payment. ' True and correct copies of the $2,792,530 Note and the $2,000,000 Note (collectively the "Notes") are attached to Plaintiffs Complaint in Mortgage Foreclosure (the "Complaint") as Exhibits "A" and "B", respectively. 2 True and correct copies of the Mortgages are attached to the Complaint as Exhibits "C" and "D", respectively. 3 True and correct copies of the Allonges are attached to the Complaint as Exhibits "E", "F" and "G", respectively. {J 1341974.1} 2 10. In Paragraph 16 of the Complaint, Plaintiff reserved the right to ask this Honorable Court to permit the foreclosure sale of the Property subject to the advertised condition that any third party purchaser must replace the Letters of Credit. 11. On December 3, 2008, the Honorable Edgar B. Bayley, President Judge of this Honorable Court entered an Order denying the Preliminary Objections which had previously been filed by Defendant and directed the Defendant to file an answer to the Complaint within 20 days. 12. On December 23, 2008, Defendant filed a petition for relief under Title 11, United States Code, in the United States Bankruptcy Court for the Eastern District of Virginia at Bankruptcy Case No. 08-18034 SSM (the "Bankruptcy Court"). 13. On or about January 6, 2009, Defendant filed a Suggestion of Bankruptcy with this Honorable Court. 14. On March 24, 2009, the Bankruptcy Court entered a Consent Order Modifying Automatic Stay as to Debtor and its Real Property (the "Bankruptcy Consent Order") A true and correct copy of the Bankruptcy Consent Order, as docketed, is attached as Exhibit "A„ 15. On April 8, 2009, Plaintiff filed a Motion for Entry of Consent in Rem Judgment in Mortgage Foreclosure. 16. On April 13, 2009, President Judge Bayley approved the entry of a Consent in Rem Judgment in Mortgage Foreclosure in favor of Plaintiff and against Defendant in the amount of $5,293,257.89 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees, and for foreclosure of the Property, all as demanded in the Complaint (the "Consent Judgment"). (J1341974.1) 3 17. Upon Plaintiff's Praecipe, on August 19, 2009, the Prothonotary entered the Consent Judgment and issued a Writ of Execution - Mortgage Foreclosure ("Writ of Execution") in the amount of $5,293,257.69 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees. 18. The Sheriff Sale of the Property is scheduled to take place on December 9, 2009 at 10:00 a.m. 19. As of November 11, 2009, the following Letters of Credit have not been presented to Plaintiff for payment: LC No. 072106-A Beneficiary: Shippensburg Borough Authority $ 550,000.00 LC No. 072106-B Beneficiary: Shippensburg Borough Authority $ 90,052.00 LC No. 072106-D Beneficiary: Southampton Township Supervisors $ 479,819.40 TOTAL $1,119,871.40 20. Any third parties bidding at the Sheriff Sale of the Property should be required to replace the outstanding Letters of Credit. 21. Requiring third parties to replace the outstanding Letters of Credit is appropriate and equitable under the circumstances. Specifically, third party bidders should be responsible for obtaining their own letters of credit in favor of the beneficiaries of the outstanding Letters of Credit. 22. Pursuant to Local Rule 208.2(d), concurrence of opposing counsel of record was sought in this Motion and such concurrence was denied. {11341974.1 } 4 WHEREFORE, Plaintiff Branch Banking and Trust Company requests this Honorable Court to grant Plaintiff's Motion for an Order Requiring Third Parry Bidders to Replace Letters of Credit Issued by Plaintiff. Robert A. Graci,,Esq. Pa. I.D. #26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6000 (717) 237-6019 facsimile and Peter N. Pross, Esq. Pa. I.D. #36890 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44th Floor Pittsburgh, PA 15219 (412) 566-5934 (412) 566-6099 Facsimile Attorneys for Plaintiff, Branch Banking and Trust Company Dated: November 13 , 2009 {11341974.1 } 5 CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Motion to Reassess Damages and to Modify Consent Judgment in Mortgage Foreclosure was served this ?3 day of November, 2009 addressed as follows: By first class mail, postage prepaid: Jerry A. Weigle, Esq. Joseph P. Ruane, Esq. Weigle & Associates, PC 236 East King Street Shippensburg, PA 17257 Counsel of Record for Defendant By first class mail, postage prepaid, and by certified mail, return receipt requested: Frank Trainer, Manager AH&T Investments, LLC 15051 Taylors Mill Road Haymarket, VA 20169 rtwll??e'l Robert A. Grad, Esq. Attorney for Plaintiff {J 1341974.1} OF THE FF I: M9 NOV 13 Fli 4: 02 CU i? ? N }; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST CIVIL DIVISION COMPANY, No. 08-5416 Plaintiff, MOTION TO REASSESS DAMAGES AND V. TO MODIFY CONSENT JUDGMENT IN MORTGAGE FORECLOSURE AH&T INVESTMENTS, LLC, Filed on behalf of Plaintiff, Branch Banking Defendant. and Trust Company Counsel of Record for this Party: Robert A. Graci, Esq. Pa. I.D. #26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6000 (717) 237-6019 facsimile and Peter N. Pross, Esq. Pa. I.D. #36890 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street 44`h Floor Pittsburgh, PA 15219 (412) 566-5934 (412) 566-6099 facsimile (J1341853.1) BRANCH BANKING AND TRUST COMPANY, Plaintiff, V. AH&T INVESTMENTS, LLC, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO. 08-5416 MOTION TO REASSESS DAMAGES AND TO MODIFY CONSENT JUDGMENT IN MORTGAGE FORECLOSURE Plaintiff, Branch Banking and Trust Company, by its attorneys, Eckert Seamans Cherin & Mellott, LLC, files this Motion to Reassess Damages and to Modify Consent Judgment in Mortgage Foreclosure, and avers as follows: 1. Plaintiff Branch Banking and Trust Company ("Plaintiff') is a North Carolina banking corporation and successor by merger to Branch Banking and Trust Company of Virginia. Plaintiff has its principal place of business at 200 West Second Street, Third Floor, Legal, Winston Salem, North Carolina 27101. 2. Defendant AH&T Investments, LLC ("Defendant") is a Virginia limited liability company with its principal place of business at 15051 Taylors Mill Place, Haymarket, Virginia 20169. 3. The Defendant is the owner of a certain tract of land containing 62.33133 acres, more or less, situate partly in Southhampton Township and partly in Shippensburg Township, Cumberland County, Pennsylvania, being Phases 1, 2 and 3 of the Final Land {J1341853.1 } Subdivision and Development Plan for Meadowsgreen Development Plan, Book 92-123 (the "Property". 4. On or about May 5, 2005, Plaintiff lent $5,792,530 to Defendant for the purpose of purchasing and developing the Property. Plaintiff's loans were evidenced by a Mortgage Note in the original principal amount of $2,792,530 (the "$2,792,530 Note") and a Mortgage Note in the original principal amount of $2,000,000 (the 12,000,000 Note").' 5. The Notes are secured by, inter alia, a first lien position, purchase money mortgage and by a second lien position, purchase money mortgage against the Property (the "Mortgages ").2 6. The Notes and the Mortgages were modified pursuant to three (3) Allonges and Modification Agreements between Plaintiff and Defendant (the "Allonges").3 7. On September 11, 2008, Plaintiff filed its Complaint which sought a judgment in mortgage foreclosure in the amount of $5,293,257.69 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees. 8. Specifically, and as set forth in paragraph 14 of the Complaint, the amounts due and owing under the Notes and Mortgages and the Allonges as of the date of the Complaint were as follows: $2,792,530 Note Principal Balance $3,854,577.08 Unpaid Interest (as of 8/10/08) 122,120.21 Current Late Charges 6,169.47 SUBTOTAL $3,982,866.76 1 True and correct copies of the $2,792,530 Note and the $2,000,000 Note (collectively the "Notes") are attached to Plaintiff's Complaint in Mortgage Foreclosure (the "Complaint") as Exhibits "A" and "B", respectively. z True and correct copies of the Mortgages are attached to the Complaint as Exhibits "C" and "D", respectively. 3 True and correct copies of the Allonges are attached to the Complaint as Exhibits "E", "F" and "G", respectively. {J 1341853.1} 2 $2,000,000 Note Principal Balance Unpaid Interest (as of 8/10/08) Current Late Charges $1,268,425.00 40,281.30 1,684.63 SUBTOTAL $1,310,390.93 GRAND TOTAL $5,293,257.69 9. In addition, and as set forth in paragraph 15 of the Complaint, Plaintiff was entitled to additional interest on the $2,792,530 Note at the rate of $642.43 per day and additional interest on the $2,000,000 Note at the rate of $211.40 per day plus reasonable attorneys fees and a Trustee's commission of 5% of the gross proceeds of any foreclosure sale. 10. On December 3, 2008, the Honorable Edgar B. Bayley, President Judge of this Honorable Court entered an Order denying the Preliminary Objections which had previously been filed by Defendant and directed the Defendant to file an answer to the Complaint within 20 days. 11. On December 23, 2008, Defendant filed a petition for relief under Title 11, United States Code, in the United States Bankruptcy Court for the Eastern District of Virginia at Bankruptcy Case No. 08-18034 SSM (the "Bankruptcy Court"). 12. On or about January 6, 2009, Defendant filed a Suggestion of Bankruptcy with this Honorable Court. 13. On March 24, 2009, the Bankruptcy Court entered a Consent Order Modifying Automatic Stay as to Debtor and its Real Property (the "Bankruptcy Consent Order"). 14. On April 8, 2009, Plaintiff filed a Motion for Entry of Consent in Rem Judgment in Mortgage Foreclosure. A true and correct copy of the Bankruptcy Consent Order, 131341853.1} as docketed, is attached as Exhibit "A" to the Motion for Entry Consent in Rem Judgment in Mortgage Foreclosure. 15. On April 13, 2009, President Judge Bayley approved the entry of a Consent in Rem Judgment in Mortgage Foreclosure in favor of Plaintiff and against Defendant in the amount of $5,293,257.89 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees, and for foreclosure of the Property, all as demanded in the Complaint (the "Consent Judgment"). 16. Upon Plaintiff's Praecipe, on August 19, 2009, the Prothonotary entered the Consent Judgment and issued a Writ of Execution - Mortgage Foreclosure ("Writ of Execution") in the amount of $5,293,257.69 with interest thereon from August 10, 2008 plus costs and reasonable attorney's fees. 17. The Sheriff Sale of the Property is scheduled to take place on December 9, 2009 at 10:00 a.m. 18. Plaintiff is entitled to demand and collect additional interest from August 10, 2008 through the date of the Sheriff Sale of the Property. See page 1 of the Notes and pages 2 and 3 of the Mortgages. 19. Additionally, Plaintiff is entitled to demand and collect all fees and other costs and expenses which Plaintiff may incur in the connection with the collection or enforcement of the Notes and the Mortgages or the preservation or disposition of the Property, including but not limited to reasonable attorney's fees. See pages 1 and 2 of the Notes and pages 2-3, 8-10 of the Mortgages. 20. Moreover, Plaintiff is entitled to a Trustee's commission of 5% of the gross proceeds of any foreclosure sale. See page 10 of the Mortgages. (J1341853.1) 4 21. Provided the Defendant does not satisfy its obligations to Plaintiff prior to the Sheriff Sale on December 9, 2009, the Defendant will owe the following amounts of principal, interest and late charges to the Plaintiff: $2,792,530 Note Principal Balance $3,854,577.08 Unpaid Interest as of 12/09/09 $199,211.81 Late Charges $6,169.47 SUBTOTAL $4,059,958.36 $2,000,000 Note Principal Balance $1,268,425.00 Unpaid Interest as of 12/09/09 $65,649.30 Late charges $1,684.63 SUBTOTAL $1,376,040.23 GRAND TOTAL $5,435,998.59 22. Additionally, through October 31, 2009, Plaintiff has incurred actual, unreimbursed attorney's fees and costs totaling approximately $140,000.00 in connection with the collection and enforcement of the Notes and Mortgages. 23. Additionally, through October 31, 2009, Plaintiff has incurred actual unreimbursed fees and costs totaling $50,000.00 in connection with preservation or disposition of the Property. 24. Moreover, from October 31, 2009 through December 9, 2009, it is estimated that Plaintiff will incur an additional $30,000.00 in attorney's fees and costs and an additional $175,000.00 in costs and expenses to preserve and dispose of the Property. 25. As more fully described in Plaintiff's Brief in Support of Motion to Reassess Damages and to Modify Consent Judgment in Mortgage Foreclosure, which is being (J1341853.1) 5 filed contemporaneously herewith, Plaintiff is entitled under Pennsylvania law to request this Honorable Court to reassess Plaintiff s damages and to amend the amount of the Consent Judgment in mortgage foreclosure to include additional sums due under the Notes, the Mortgages and the Allonges. 26. Accordingly, Plaintiff moves this Honorable court to reassess Plaintiff s damages and to amend the amount of the Consent Judgment in mortgage foreclosure as follows: Total Principal Balance $5,123,002.08 Unpaid Interest as of 12/09/09 264,861.11 Total Late Charges 7,854.10 Attorney's Fees and Costs as of 10/31/09 140,000.00 Costs and Expenses to Preserve Property as of 10/31/09 50,000.00 Additional Attorney's Fees and Costs (11/1/09 to 12/9/09) 30,000.00 Additional Costs and Expenses to Preserve Property (11/1/09 to 12/9/09) 175,000.00 TOTAL $5,790,717.29 27. Pursuant to Local Rule 208.2(d), concurrence of opposing counsel of record was sought in this Motion and such concurrence was denied. WHEREFORE, Plaintiff Branch Banking and Trust Company requests this Court to grant Plaintiff s Motion to Reassess Damages and to Modify Consent Judgment in Mortgage Foreclosure. R'esf ctfull submitted, Robert A. Graci sq. Pa. I.D. #26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (J1341853.1) 6 (717) 237-6000 (717) 237-6019 facsimile and Peter N. Pross, Esq. Pa. I.D. #36890 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44th Floor Pittsburgh, PA 15219 (412) 566-5934 (412) 566-6099 Facsimile Attorneys for Plaintiff, Branch Banking and Trust Company Dated: November /3 , 2009 {J 1341853.11 7 CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Motion to Reassess zz Damages and to Modify Consent Judgment in Mortgage Foreclosure was served this. day of November, 2009 addressed as follows: By first class mail, postage prepaid: Jerry A. Weigle, Esq. Joseph P. Ruane, Esq. Weigle & Associates, PC 236 East King Street Shippensburg, PA 17257 Counsel of Record for Defendant By first class mail, postage prepaid, and by certified mail, return receipt requested: Frank Tramer, Manager AH&T Investments, LLC 15051 Taylors Mill Road Haymarket, VA 20169 L I 6- A. i Attorney for Plaintiff (J1341853.1) Cc THE PRI ?; "It1r TAPY 2003 NOY 13 °M 4: 31 1 ; BRANCH BANKING AND TRUST COMPANY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. AH&T INVESTMENTS, LLC., DEFENDANT : 08-5416 CIVIL TERM ORDER OF COURT AND NOW, this 1?9 day of November, 2009, a Rule is entered against AH&T Investments, LLC, to show cause why the motion to reassess damages and to modify consent judgment in mortgage foreclosure should not be granted. Rule returnable at a hearing to be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 2:30 p.m., Wed the Edgar B. ZRobert A. Graci, Esquire For Plaintiff ,Jerry A. Weigle, Esquire ?eph P. Ruane, Esquire For Defendant sal 120P tks M42A?L /l/l e/cf r 2, 2009. J. OF 7 P^T!-MTARY 2009 NOV IS PH 3: 26 CUM - ?- aJ ? J PENNSYLVANIA VANIA BRANCH BANKING AND TRUST COMPANY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. AH&T INVESTMENTS, LLC., DEFENDANT : 08-5416 CIVIL TERM ORDER OF COURT AND NOW, this 1? day of November, 2009, a Rule is entered against AH&T Investments, LLC, to show cause why the motion to require third party bidders to replace letters of credit issued by plaintiff should not be granted. Rule returnable at a hearing to be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 2:30 p.m., Wednesday, December 2, 2009. Robert A. Graci, Esquire For Plaintiff /Jerry A. Weigle, Esquire ,-Joseph P. Ruane, Esquire For Defendant :sal GT t O.-V rvLa I LCL 8/of OF nHEo MrARr 2009 NOV 18 PM 3: 26 CUMb :? ?- 4uc COUNTY PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, V. AH&T INVESTMENTS, LLC, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO. 08-5416 ORDER GRANTING MOTION TO REASSESS DAMAGES AND TO MODIFY CONSENT JUDGMENT IN MORTGAGE FORECLOSURE AND NOW, this?Mday of Y. A z009, upon consideration of Plaintiff's Motion to Reassess Damages and to Modify Consent Judgment in Mortgage Foreclosure (the "Motion'), and it appearing to the Court that there is sufficient cause therefore, it is hereby ORDERED that the Motion is GRANTED. It is further ORDERED that the amount of Plaintiff's judgment in mortgage foreclosure is hereby reassessed and amended as follows: Total Principal Balance $5,163,893.91 Unpaid Interest as of 12/09/09 486,673.27 Total Late Charges 7,854.10 Attorney's Fees and Costs 175,755.44 Costs and Expenses to Preserve Property Local Taxes (2007 and 2008) $98,854.10 Local Taxes (2009) 46,740.10 Professional Engineer 38,773.75 Lawn Maintenance 3,750.00 Paving 155,973.42 TOTAL J. Distribution: /Robert A. Graci, Esquire For Plaintiff ?rry A. Weigle, Esquire ,,-To"seph P. Ruane, Esquire For Defendant C-Of ,;cz emw Lf-C-L r L t py 2003 GEC -L F`i'g ?= ? I BRANCH BANKING AND TRUST COMPANY, Plaintiff, V. AH&T INVESTMENTS, LLC, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO. 08-5416 ORDER GRANTING MOTION TO REQUIRE THIRD PARTY BIDDERS TO REPLACE IRREVOCABLE LETTERS OF CREDIT AND NOW, tht-W3 day of , 2009, upon consideration of Plaintiff's Motion for an Order Requiring Third Party Bidders to Replace Irrevocable Letters of Credit Issued by Plaintiff (the "Motion'), and it appearing to the Court that there is sufficient cause therefore, it is hereby ORDERED that the Motion is granted. It is further ORDERED that any third party bidders at the Sheriff Sale of the Property described in the Motion shall be required to replace the outstanding Letters of Credit issued by Plaintiff. It is further Ordered that the Sheriff is directed to advertise and announce this condition of sale of the Property. J. Distribution: ?Robert A. Graci, Esquire For Plaintiff GOP1 ES ?t't? t lC?, {J 1341974.1 'Jerry A. Weigle, Esquire Tseph P. Ruane, Lsquire For Defendant _ I U: a- r ,.4("t' ,APy 2009 DEC -2 PH 3: Lf f SHERIFF'S OFFICE OF CUMBERLAND COYTY Ronny R Anderson t r j ;`< Sheriff?tr of 444 --, t Jody S Smith LdI t.? ?i " _ ?' L Chief Deputy r rt a. Edward L Schorpp Solicitor f `I Branch Banking & Trust Co. Case Number vs. AH&T Investments LLC 2008-5416 SHERIFF'S RETURN OF SERVICE 10/09/2009 10:15 AM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on 10/9109 at 1015 hours, he posted a true copy of the within Real Estate Writ, Notice, Poster and Description, in the above entitled action, upon the property of AH&T Investments, LLC, located at, Ritner Highway-Meadowsgreen Development, Shippensburg, Cumberland County, Pennsylvania according to law. 10/00/2009 10:00 AM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on 10/9/09 at 1000 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: AH&T Investments, LLC, by making known unto, Jerry Weigle, Attorney for Defendant, personally, at, Weigle & Associates, PC, 136 East King Street, Shippensburg, Cumberland County, Pennsylvania its contents and at the same time handing to him personally the said true and correct copy of the same. R. Thomas Kline, Sheriff, who being duly sworn according to law, states he served the above Real Estate Writ, Notice of Sale and Description in the following manner: The Sheriff mailed a notice of the action by certified mail, return receipt requested to the within named defendant to wit: AH&T Investments, LLC, to their last known address of, 15051 Taylors Mill Place, Haymarket, VA 20169-1034. The return receipt card(s) were signed by, Signature Illegible, on October 5, 2009 and returned to the Cumberland County Sheriffs Office. R. Thomas Kline, Sheriff, who being duly sworn according to law, states he served the above Real Estate Writ, Notice of Sale and Description in the following manner: The Sheriff mailed a notice of the action by certified mail, return receipt requested to the within named defendant, to wit: AH&T Investments, LLC, to their last known address of, 125 Loudoun Street, SW, Suite C, Leesburg, VA 20175. The return receipt card was signed by, Signature Illegible, on October 5, 2009 and returned to the Cumberland County Sheriffs Office. 12/0912009 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states 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 December 9, 2010 at 10:00 o'clock A.M. He sold the same for the sum of $1.00 to Attorney Peter N. Pross, on behalf of, Fountainhead SPE, Inc., 150 Fayetteville Street, Box 1011, Raleigh, Nc 27601, being the buyer in this execution, paid to Sheriff Ronny R. Anderson, the sum of $ 1007.26 SHERIFF COST: $1,183.11 SO ANSWERS, March' 22, 2010 RON R ANDERSON, SHERIFF ,too "j, it-k S-0 I-& Pd n ci 04I'l'y JUlle ShP,?1}f, 7P.i I?GStitt. f':C. l(/r/C- _e / /?ft -2 (aq?V 4 S g </ 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND C oUN'FY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION No. 08-5416 Plaintiff, V, AFFIDAVIT PURSUANT TO PA. R.C.P. RULE 3129.1 AH&T INVESTMENTS, LLC, Defendant. Filed on Behalf of Plaintiff, BRANCH BANKING AND TRUST COMPANY Counsel of Record for This Party: Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 44'h Floor, U.S. Steel Tower 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 (412) 566-6099 facsimile and Robert A. Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 (717) 237-6019 facsimile Counsel for Plaintiff ;.11307551.1: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, CIVIL DIVISION Plaintiff, V. No. 08-5416 AH&T INVESTMENTS, LLC, Defendant. AFFIDAVIT PURSUANT TO PA R.C.P. RULE 3129.1 COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF ALLEGHENY ) BRANCH BANKING AND TRUST COMPANY, Plaintiff in the above action, sets forth as of the date the Praecipe for Writ of Execution - Mortgage Foreclosure was filed, the following information concerning the real property of Defendant AH&T INVESTMENTS, LLC, situate partly in Southhampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania, being Phases 1,2 and 3. Final Land Subdivivion and Development Plan for Meadowsgreen Development, Plan Book 92-123, and more particularly described on the attached Exhibit "A": 1. The name and addresses of the owners or the reputed owners: AH&T Investments, LLC 15051 Taylors Mill Place Haymarket, VA 20169-1034 AH&T Investments, LLC c/o Jerry A. Weigle, Esq. Weigle & Associates, PC 236 East King Street Shippensburg, PA 17257 AH&T Investments,LLC c/o David R. Young, Jr., Esq. Law Offices of David R. Young, Jr. 125 Loudoun Street, SW Suite C Leesburg, VA 20175 ,.) 1307551.1; 2. The name and addresses of the Defendant in the j udgment: AH&T Investments, LLC 15051 Taylors Mill Place Haymarket, VA 20169-1034 AH&T Investments, LL c/o Jerry A. Weigle, Esq. Weigle & Associates, PC 236 East King Street Shippensburg, PA 17257 AH&T Investments,LLC c/o David R. Young, Jr., Esq. Law Offices of David R. Young, Jr. 125 Loudoun Street, SW Suite C Leesburg, VA 20175 3. The name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Branch Banking and Trust Company Pennsy Supply, Inc 200 West Second Street 1001 Paxton Street Third Floor, Legal P.O. Box 3331 Winston Salem, NC 27101 Harrisburg, PA 17105 4. The name and address of the last record holder of every mortgage of record: Branch Banking and Trust Company 200 West Second Street Third Floor, Legal Winston Salem, NC 27101 5. The name and address of every person who has any record lien on the property: None 6. The names and addresses of every other person who has any record interest in the property and whose interest may be affected by the sale: None 7. The names and addresses of every other person whom Plaintiff has knowledge who has any interest in the property which may be affected by the sale: ,.11307551.11 2 Cumberland County Tax Claim 1 Courthouse Square Carlisle, PA 17013-3387 Cumberland Franklin Joint Municipal Authority 725 Municipal Drive Shippensburg, PA 17257 James Robinson, Esq. Authority-Solicitor Cumberland-Franklin Joint Municipal Authority 28 South Pitt Street Carlisle, PA 17013 Thomas Liott 119 Black Bird Lane Shippensburg, PA 17257 Todd E. Mummert 119 Black Bird Lane Shippensburg, PA 17257 Paul S. Bawice 119 Black Bird Lane Shippensburg, PA 17257 Barry L. Negley, Tax Collector, Shippensburg Twp. 2 Patridge Trail Shippensburg, PA 17257 Vivian F. Coy, Tax Collector, Southampton Twp. 200 Airport Road Shippensburg, PA 17257 W. Scott Henning, Esq. Attorney for Pennsy Supply, Inc. Hendler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Pennsy Supply, Inc. 1001 Paxton Street P.O. Box 3331 Harrisburg, PA 17105 J 1307551.1; 3 I verify that the statements made in this Affidavit are true and correct t to the best of my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. Stat. Ann. § 4904 relating to the unswc?rn falsification to authorities. ?•G?--- Peter N. Pross Attorney for Plaintiff Sworn to and subscribed Before me this / 7 day Of9 2009. COMMONWEALTH OF PENNSYLVANIA Notarial Seal Geraldine C. Allison, Notary Public City Of Pittsburgh, ail=;?heny County /'`'` My (,(?mtl?i ?r r# ? ?-? r£ ?(;?t 10, ZOQ9 Notary Public 5-0 er. 71.71 o` Nola 7, 11307551.1) 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST ) CIVIL DIVISION COMPANY, ) No. 08-5416 Plaintiff, V. AH&T INVESTMENTS, LLC, Defendant. AFFIDAVIT OF COMPLIANCE WITH ACT 6 AND 91 Filed on Behalf of Plaintiff, BRANCH BANKING AND TRUST COMPANY Counsel of Record for This Party: Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 44th Floor, U.S. Steel Tower 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 (412) 566-6099 facsimile and Robert A. Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 1.11308000.1 1 (717) 237-6019 facsimile Counsel.for Plainti f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT', PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, CIVIL DIVISION V. No. 08-5416 AH&T INVESTMENTS, LLC, Defendant. AFFIDAVIT OF COMPLIANCE WITH ACT 6 AND 91 COMMONWEALTH OF PENNSYLVANIA ) ) ss: COUNTY OF ALLEGHENY ) BRANCH BANKING AND TRUST COMPANY, Plaintiff in the above action, sets forth that it has complied with all provisions of Acts 6 and 91, as follows: For the following reasons, Plaintiff was not required to send Defendant written notices pursuant to Act 6, 41 P.S. Section 101 et seq. and Act 91, 35 P.S. § 1680.401, et seq.: 1. The original principal amounts of the loans secured by Plaintiffs mortgages were in excess of $50,000. 2. The real property involved is not the principal residence of the Defendant. 3. The real property involved is not a one or two family owner-occupied residence. I verify that the statements made in this Affidavit are true and correct to the best of my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. Stat. Ann. § 4904 relating the unsworn falsification to authorities. P"& /V. ? Peter N. Pross Attorney for Plaintiff Sworn to and subscribed Before me this 19 day of ?u9u.sT .2009. /xNoootar?y Public L My commission expires: J1308000.11 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Geraldine C Alison, Notary Public City of ;A"Je9heny County My Cxrnrni°'.si ' i by. r , tiF; t. 10, 2009 hA ,muur, 1 IN THE COURT OF COMMON PLEAS OF CUIV19ERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST ) CIVIL DIVISION COMPANY, ) No. 08-5416 Plaintiff, } V. ) NOTICE OF SHERIFF'S SALE OF REAL ESTATE AH&T INVESTMENTS, L.LC, ) Defendant. ) Filed on Behalf of Plaintiff, BRANCH BANKING AND TRUST COMPANY Counsel of Record for This Party: Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott; LLC 44th Floor, U.S. Steel Tower 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 (412) 566-6099 facsimile and Robert A. Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 (717) 237-6019 facsimile Counsel for Plaintiff ;11307327.1) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, CIVIL DIVISION V. No. 08-5416 AH&T INVESTMENTS, LLC, Defendant. NOTICE OF SHERIFF'S SALE OF REAL ESTATE To: DEFENDANT AND ALL OTHER INTERESTED PERSONS OR PARTIES TAKE NOTICE that by virtue of a Writ of Execution issued out of the Court of Common Pleas of Cumberland County, Pennsylvania and to the Sheriff of Cumberland County directed, there will be exposed to Public Sale in the Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania, on December 9, 2009 at 10:00 a.m, the following described real estate of which the Defendant is the owner or reputed owner: ALL THAT certain tract of land situate partly in Southampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania. Being Phases 1, 2 and 3. Final Land Subdivision and Development Plan for Meadowsgreen Development, Plan Book 92-123. Also known as Lot 6. Land Subdivision Plan for Frank E. Hollar, Jr. Estate, Plan Book 90-71. Tract of land containing 62.33133 Acres, more or less Being the same real estate that The Estate of Frank E. Hollar, Jr., by its deed dated May 5, 2005 and recorded in Cumberland County Deed Book 268, page 4069, conveyed to AH&T Investments, LLC. Excepting therefrom the property described in the following deeds recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania: Deed Book 277-3054 (Lot C 12) Deed Book 278-216 (Lot C 11) Deed Book 278-1960 (Lot C15) Deed Book 278-3834 (Lot B35) Deed Book 279-357 (Lot 1338) Deed Book 278-210 (Lot C 16) Deed Book 278-1762 (Lot C13) Deed Book, 278-1964 (Lot B37) Deed Book 278-4233 (Lot 1336) Deed Book 279-464 (Lot C 19) ;J 1307327.1; Deed Book 279-556 (Lot C14) Deed Book 279-1318 (Lot B33) Instrument Number 2007-37928 (Lot 132) Deed Book 279-559 (Lot B34) Deed Book 280-3354 (Lot C 17) Instrument Number 2007-38813 (Lot C8) Said Writ of Execution has been issued on a judgment in the mortgage foreclosure action of Branch Banking and Trust Company v. AH&T Investments, LLC in the amount of $5,293,257.69 plus interest from August 10, 2008 and reasonable attorneys' fees and costs. Claims against the property must be filed at the Office of the Sheriff before the above sale date. Claims to proceeds must be made at the Office of the Sheriff before distribution. Schedule of distribution will be filed at the Office of the Sheriff no later than thirty (30) days from the sale date. Exceptions to distribution or a petition to set aside the sale must be filed at the Office of the Sheriff no later than ten (10) days from the date when scheduled distribution is filed in the Office of the Sheriff. Attached hereto is a copy of the Writ of Execution that has been issued because there is a judgment against you. It may cause your property to be held or taken to pay the judgment. You may have legal rights to prevent your property from being taken. 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 NOTICE AND THE WRIT OF EXECUTION TO A 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 ADVICE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 You may have legal rights to prevent the Sheriffs sale and the loss of your property. In order to exercise those rights, prompt action on your part is necessary. In order to prevent or delay the Sheriff's sale by filing, before the sale occurs, a petition to open or strike the judgment or a petition to stay the execution. If the judgment is entered because you did not file with the court any defense or objection, you might have the right to have the judgment opened if you promptly file a petition with the court alleging a valid defense and reasonable excuse for failing to file the defense on time. If the judgment is opened, the Sheriff s Sale would ordinarily be delayed pending a trial on the issue if referenced plaintiff had a valid claim to the legal judgment. You may also have the right to have the judgment stricken if the Sheriff has not made a valid return of service of the Complaint and Notice to Defend or if the judgment was entered before twenty (20) days after service or in certain other events. To exercise this right, you will have to file a petition to strike the judgment. J 1307327.1 2 You may also have the right to petition the court to stay or delay the execution in the Sheriff's sale if you can show a defect in the Writ of Execution of Service or demonstrate a legal equitable right. YOU MAY ALSO HAVE THE RIGHT TO HAVE THE SHERIFF'S SALE SET ASIDE IF THE PROPERTY IS SOLD FOR A GROSSLY INADEQUATE PRICE OR, IF THERE ARE DEFECTS IN THE SHERIFF'S SALE. TO EXERCISE THIS RIGHT, YOU SHOULD FILE A PETITION WITH THE COURT AFTER THE SALE AND BEFORE THE SHERIFF HAS DELIVERED THE DEED TO THE PROPERTY. THE SHERIFF WILL DELIVER THE DEED IF NO PETITION TO SET ASIDE THE SALE IS FILED WITHIN TEN (10) DAYS FROM THE DATE WHEN THE SCHEDULE OF DISTRIBUTION IS FILED IN THE OFFICE OF THE SHERIFF. Dated: August 17, 2009 Peter N. Pross, Esq. Pa. I.D. No. 36890 Harry A. Readshaw, Esq. Pa. I.D. No. 204287 Eckert Seamans Cherin & Mellott, LLC 44th Floor, U.S. Steel Tower 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 (412) 566-6099 Facsimile and Robert A.Graci, Esq. Pa. I.D. No. 26722 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6067 (717) 237-6019 facsimile Attorneys for Plaintiff {J 1307327.1) 3 . P EXHIBIT A SHORT FORM DESCR IPTION ALL THAT certain tract of land situate partly in Southampton Township and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylvania. Being Phases 1, 2 and 3. Final Land Subdivision and Development Plan for Meadowsgreen Development, Plan Book 92-123. Also known as Lot 6. Land Subdivision Plan for Frank E. Hollar, Jr. Estate, Plan Book 90-71. Tract of land containing 62.33133 Acres, more or less Being the same real estate that The Estate of Frank E. Hollar, Jr., by its deed dated May 5, 2005 and recorded in Cumberland County Deed Book 268, page 4069, conveyed to AH&T Investments, LLC. Excepting therefrom the property described in the following deeds recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania: Deed Book 277-3054 (Lot C 12) Deed Book 278-210 (Lot C 16) Deed Book 278-216 (Lot C 11) Deed Book 278-1762 (Lot C13) Deed Book 278-1960 (Lot C15) Deed Book, 278-1964 (Lot B37) Deed Book 278-3834 (Lot B35) Deed Book 278-4233 (Lot B36) Deed Book 279-357 (Lot B38) Deed Book 279-464 (Lot C 19) Deed Book 279-556 (Lot C14) Deed Book 279-559 (Lot B34) Deed Book 279-1318 (Lot B33) Deed Book 280-3354 (Lot C 17) Instrument Number 2007-37928 (Lot 132) Instrument Number 2007-38813 (Lot C8) ;.11307551.11 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) N008-5416 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due BRANCH BANKING AND TRUST COMPANY Plaintiff (s) From AH&T INVESTMENTS LLC 15051 TAYLORS MILL PLACE HAYMARKET, VA 20169-1034 (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 $ 5,293,257.69 L.L.$0.50 Interest FROM 8/10/08 TO 12/09/09 Atty's Comm % Due Prothy $2.00 Atty Paid $ 172.00 Other Costs Plaintiff Paid Date: August 19, 2009 C s R. Long, no (Seal) By: Deputy REQUESTING PARTY: Name PETER N PROSS ESQ ECKERT SEAMANS CHERIN & MELLOTT, LLC Address: 44TH FL, U S STEEL TOWER 600 GRANT STREET PITTSBURGH, PA. 15219 Attorney for: PLAINTIFF Telephone: (412)0566-6000 Supreme Court ID No. 36890 On October 2, 2009 the Sheriff levied upon the defendant's interest in the real property situated in Southampton Township and Shippensburg Township Cumberland County, PA, Known and numbered as Ritner Highway- Meadowsgreen Development, Shippensburg, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: October 2, 2009 By: k eal Estate oordinator PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 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 the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: October 23, October 30 and November 6, 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 interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. for SW&KN TO AND SUBSCRIBED before me this Ida of November 2009 zr?? Notary NOTARIAL SEAL DEBORAH A COLLINS Notary Public CARLISLE BORO, CUMBERLAND COUNTY My Commission Expires Apr 28, 2010 writ NO. 9008-416 civil Branch Banking and Trust Company VS. AH&T Investments, LLC Atty: Peter Pross ALL THAT certain tract of land situate partly in Southampton Town- ship and partly in Shippensburg Township, County of Cumberland and Commonwealth of Pennsylva- nia. Being Phases 1, 2 and 3. Final Land Subdivision and Development Plan for Meadowsgreen Development, Plan Book 92-123. Also known as Lot 6. Land Subdivision Plan for Frank E. Hollar, Jr. Estate, Plan Book 90-71. Tract of land containing 62.33133 Acres, more or less. Being the same real estate that The Estate of Frank E. Hollar, Jr., by its deed dated May 5, 2005 and re- corded in Cumberland County Deed Book 268, page 4069, conveyed to AH&T.Investments, LLC. Excepting therefrom the property described in the following deeds re- corded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania: Deed Book 277-3054 (Lot C12) Deed Book 278-210 (Lot C16) Deed Book 278-216 (Lot CI1) Deed Book 278-1762 (Lot C13) Deed Book 278-1960 (Lot CIS) Deed Book, 278-1964 (Lot B37) Deed Book 278-3834 (Lot B35) Deed Book 278-4233 (Lot B36) Deed Book 279-357 (Lot B38) Deed Book 279-464 (Lot C19) Deed Book 279-556 (Lot C14) Deed Book 279-559 (Lot B34) Deed Book 279-1318 (Lot B33) Deed Book 280-3354 (Lot C17) Instrument Number 2007-37928 (Lot B2) Instrument Number 2007-38813 (Lot C8). The Patriot-News Co. 812 Market St. Harrisburg, PA 17101 Inquiries - 717-255-8213 CUMBERLAND CO. SHERIFFS OFFICE CUMBERLAND COUNTY COURT HOUSE CARLISLE PA 17013 Z4tPatriot 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 Leslie Kramer, being duly sworn according to law, deposes and says: Thai: she is a Staff Accountant 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 she 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 she 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 This ad ran on the date(s) shown below: 10/23/09 .......... r< Sworn to and subscribed before men this ,16 day of November, 2009 A.D. Notary Public i.OMN1ONW - r-- CAS Tei OF PENNSyLVAW Sherrie L. Ki3rer tary Public City of htv,?Uu . NDauphin Lkly ?u'nission County Expires Nov. 26.2011 anon Of ""otarie" 10/30/09 11/06/09 / Writ No. 2108.5416 Clv?lTerm Bnnih 66ftg and trust Compsny Vs AHST Investments, LLC il?tty: Pstsr Bross ALL THAT certain tract of land situate partly in Southampton Township and partly in Shippensbnu; Township, County of Cumberland and Commonwealth of Pennsylvania. Being Phases 1, 2 and 3. Final Land Subdivision and Development Plat for Meadowsgreen DeveWPOM , ft Book 92-123. Also known as Lot 6. Laad Subdivision Plan for Frank E. Hollar, Jr. Estate, Plan Book 90.71. Tract of land c U02ing 62.33133 Acres, more or less Being the same real estate that The Estate of Frank E. Hollar, Jr., by its 'deed dated May 5. 2005 a ndocotded in Cumberland County Deed Book` 24, page 4069, conveyed to AH&T Investments, LLC. Exceptmg therefrom the property described in the Hawing deals recoiled in the Office of the Recorder of Detds of Cumberland County, Pennsylvania; Deed Bopk 277-3054 (Lot C12) Deed Book 278.210 (Lot C16) Deed Bonk 278-216 (Lot C1) Deed Book 278-1762 (Lot C13) Deed Book 278-1960 (Lot 0) Deed Book, 279-1964 (Lot B37) Deed Book 278-3834 (Lot B35) Deed: Book 2784233 (Lot B36) Deed Book 279-357 (Lot B36) Deed Book 279464 (Lot C19) Deed Book 279-556 (Lot C14) Deed Book 279-559 (Lot B34) Deed Book 279-1318 (Lot B33) " Deed Book 280-3354 (Lot C17) Instrument Number 2007-37928 (Lot B2) Instrument Number 2007-38813 (Lot C8) 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 Sheriff's Deed in which FOUNTAINHEAD SPE INC is the grantee the same having been sold to said grantee on the 9TH day of DEC A.D., 2009, under and by virtue of a writ Execution issued on the 19TH day of AUG, A.D., 2009, out of the Court of Common Pleas of said County as of Civil Term, 008 Number 5416, at the suit of BRANCH BANKING & TRUST CO against AH&T INVESTMENTS LC is duly recorded as Instrument Number 201007909. IN TESTIMONY WHEREOF, I have hereunto set my hand and seal of said office this day of A.D. oC O /0 Reco cjir of Deeds R?cadrdOiYd? f?b?nd0a? ?M?, M Ay OaemiNion 6? b F4t Motly d in. X14