HomeMy WebLinkAbout09-8098McCARTER & ENGLISH, LLP
By: Robert J. Hoelscher
Christine L. Barba
Identification Nos. 26746, 206938
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
Attorneys for Plaintiff,
Wachovia Bank, National Association
WACHOVIA BANK, NATIONAL COURT OF COMMON PLEAS
ASSOCIATION CUMBERLAND COUNTY, PA
600 Penn St., P.O. Box 1192
Reading, PA 19603
Plaintiff,
vs.
RAMA DEVELOPMENT, LLC
4209 York Road
New Oxford, PA 17350
Defendant.
NO. D r ?(? c ?? T ?'?
NOTICE
You have been sued in Court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by an 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 or any other claim or
relief requested by the plaintiff. You may lose money or property 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:
Lawyer Referral Service
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
1-800-990-9108
717-249-3166
ME] 9265779v.1
McCARTER & ENGLISH, LLP
By: Robert J. Hoelscher
Christine L. Barba
Identification Nos. 26746, 206938
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
WACHOVIA BANK, NATIONAL
ASSOCIATION
600 Penn St., P.O. Box 1192
Reading, PA 19603
Plaintiff,
vs.
RAMA DEVELOPMENT, LLC
4209 York Road
New Oxford, PA 17350
Attorneys for Plaintiff,
Wachovia Bank, National Association
: COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. f?f o,i rc?ti
Defendant.
COMPLAINT IN MORTGAGE FORECLOSURE
Plaintiff Wachovia Bank, National Association, by and through its attorneys, for its
Complaint in Mortgage Foreclosure against defendant Rama Development, LLC, avers as
follows:
1. Plaintiff Wachovia Bank, N.A. ("Wachovia") is a national banking association,
with an office located at 600 Penn Street, Reading, PA 19603.
2. Defendant Rama Development, LLC ("Defendant") is a limited liability company
organized and existing under the laws of Pennsylvania with offices at 4209 York Road, New
Oxford, PA 17350.
3. Defendant is the owner of record of certain parcels of real property located in the
South Middleton Township, Cumberland County, Commonwealth of Pennsylvania (the
ME 1 9265779v.1
"Property"). The full legal description of the Property is set forth in Exhibit A, which is attached
hereto and incorporated herein by reference.
4. On or about October 16, 2007, Wachovia and the Borrower entered into a
financing transaction (the "Loan.") evidenced by, inter alia, a Promissory Note dated October 16,
2007 in the original principal amount of Two Million Seven Hundred Thousand ($2,700,00)
Dollars (the "Note," a true and correct copy of which is attached hereto at Exhibit B), which was
subject to the terms and conditions of that certain Loan Agreement of even date therewith (the
"Loan Agreement," a true and correct copy of which is attached hereto at Exhibit Q.
5. In consideration of and as partial security for its obligations under the Note and
the Loan Agreement, the Defendant executed and delivered to Wachovia a certain Open-End
Purchase Money Mortgage and Assignment of Rents dated October 16, 2007 (the "Mortgage"),
which granted Wachovia a lien upon the Property in the amount of $2,700,000. The Mortgage
was duly recorded with the Cumberland County Recorder of Deeds on July 22, 2008 as
Instrument No. 200740004. A true and correct copy of the Mortgage is attached hereto at
Exhibit D. The Note, the Mortgage, the Loan Agreement, and all other instruments, documents
and agreements by and between Wachovia and the Defendant in connection with the Loan are
collectively referred to as the "Loan Documents."
6. Wachovia is the holder of the Note, the Mortgage and the other Loan Documents.
7. Pursuant to the terms of the Loan Documents, the Borrower was obligated, inter
alia, to repay the full outstanding balance of principal and interest under the Note on or before
November 1, 2009 (the "Maturity Payment"). (See Exhibit B at page 2; Exhibit C at page 5.)
8. Defendant failed to meet its obligations under the Loan Documents by, inter alia,
failing to make the Maturity Payment, which constitutes default under the terms of the Mortgage
2
ME 1 9265779v. I
and the other Loan Documents. (See Exhibit B at page 4, Exhibit C at page 20 and Exhibit D at
page 10.)
9. As a result of the foregoing defaults, all sums outstanding under the Note and the
other Loan Documents are immediately due and payable.
10. Pursuant to the terms of the Loan Documents, interest accrued on the unpaid
principal balance of the Note at the Bank's Prime Rate (as defined therein) (the "Note Rate").
(Exhibit B at page 1.)
11. Pursuant to the terms of the Loan Documents, upon default thereunder, interest
accrues at the Note Rate plus 3% (the "Default Rate"). (Id. at page 2.)
12. Pursuant to the terms of the Loan Documents, the Defendant is liable for all of
Wachovia's costs and fees incurred in connection with the collection of the Loan and the
enforcement of the Loan Documents, including without limitation Wachovia's attorneys' fees
and costs. (Id. at pages 3-4.)
13. By letter dated November 3, 2009, Wachovia notified the Defendant of, inter alia,
the defaults under the Loan Documents, and that the outstanding balance of the Loan was
immediately due and payable.
14. As a result of the aforementioned defaults, the following sums are immediately
due and owing to Wachovia for principal, interest, costs and fees:
Principal $2,330,490.32
Interest (as of November 18, 2009) 0
Subtotal: $2,330,490.32
Actual attorneys' fees and costs
(as of November 1, 2009): $ 1,967.25
Filing and service fees: 328.50
TOTAL OBLIGATIONS $293329785.07
3
MEl 9265779v.1
15. In addition to the amounts set forth above, pursuant to the terms of the Loan
Documents, Wachovia is entitled to continuing interest from November 18, 2009, and continuing
attorneys' fees and costs.
16. Notice pursuant to the provisions of 35 P.S. §1680.401c, et seq., is not required
because the Property is not a principal residence in the Commonwealth of Pennsylvania.
17. Notice pursuant to the provisions of 41 P.S. §401, et seq., is not required because
the original principal amount of the Note is in excess of $50,000.
WHEREFORE, plaintiff, Wachovia Bank, N.A., respectfully demands that a Judgment in
Mortgage Foreclosure be entered in its favor and against defendant Rama Development, LLC, in
the amount of $2,332,786.07, plus continuing interest at the Default Rate from November 18,
2009, continuing attorneys fees and costs, continuing expenses and costs of suit, and for the
foreclosure and sale of the Property.
Respectfully submitted,
Robert. Hoelscher
Christine L. Barba
Identification Nos.: 26746, 206983
MCCARTER & ENGLISH, LLP
Mellon Bank Center
1735 Market Street, Suite 700
Philadelphia, PA 19103
Phone: (215) 979-3800
Fax: (215) 979-3899
Attorneys for Plaintiff,
Date: November 19, 2009 Wachovia Bank, National Association
4
ME1 9265779v.1
VERIFICATION
I, Patricia Miele, an Assistant Vice President of Wachovia Bank, N.A., hereby verify that
the statements made in this Complaint are true and correct to the best of my knowledge,
information, and belief. I further verify that I am authorized to make this Verification on behalf
of Wachovia Bank, N.A. I understand that false statements herein are subject to the penalties in
18 Pa. C.S.A. §4904 relating to unsworn falsifications to authorities.
Dated: November _LJ, 2009
Patricia Miele
Assistant Vice President
Wachovia Bank, N.A.
5
ME I 9265779v.1
?X?,?b?+ f1'
Rev. 10/16107
EXHIBIT "A"
ALL THAT CERTAIN tract of land situate in the Township of South Middleton,
Cumberland County, Pennsylvania known as Lot 1 on the plan for Ralph C. Otto,
recorded in Plan Book 40, page 91, bounded and described as follows:
BEGINNING at a point on the north side of Lisburn Road (T-511) at lands of No
Otto; thence along the north side of said road, North 72 degrees 10 minutes West three
hundred seventy-one and nineteen one-hundredths feet; thence along same North 73
degrees 02 minutes 06 seconds West one thousand two hundred twenty-one and
seventeen one-hundredths feet; thence along same North 68 degrees 12 minutes 55
seconds West three hundred and twenty-eight one-hundredths feet; thence along same
North 67 degrees forty minutes West three hundred eighty-nine and twenty-nine one-
hundredths feet to a point at Lot 2; thence along said lot North 22 degrees 20 minutes
East five hundred eighty-four and fifteen one-hundredths feet to a point at lands now or
formerly of Beamer; thence along said lands North 86 degrees 00 minutes East one
thousand and ninety-one one-hundredths feet to a point at lands now or formerly of
Anna Kahn; thence along said lands South 81 degrees 00 minutes East one thousand
thirty-two and eighty-nine one-hundredths feet to lands of No Otto; thence along said
lands South 08 degrees 45 minutes West one thousand one hundred seventy-five and
twenty one-hundredths feet to a point and place of BEGINNING.
BEING part of Tract 10 of the same premises which the Court of Common Pleas
by order dated 04/03/78 and recorded 04/05/78 in the Office of the Recorder of Deeds
in and for Cumberland County, Pennsylvania, in Deed Book 27-S-476, awarded unto
Ralph C. Otto.
THE SAID Ralph C. Otto died 03/07/96 leaving Last Will and Testament fled and
remaining of record in the Register of Wills Office of Cumberland County to No. 21-96-
00245, wherein he appointed Michael Guy Executor to whom letters testamentary were
granted.
?008 12:45:00 PM CUMBERLAND COUNTY
" ?, ?' f i?
0
PROMISSORY NOTE
$2,700,000.00
RAMA DEVELOPMENT, LLC
4209 York Road
New Oxford, Pennsylvania 17350
(Hereinafter referred to as "Borrower")
Wachovia Bank, National Association
Reading, Pennsylvania 19603
(Hereinafter referred to as "Bank")
October 16 , 2007
Borrower promises to pay to the order of Bank, in lawful money of the United States of
America by delivering to the address specified hereinafter or wherever else Bank may
specify, the sum of Two Million, Seven Hundred Thousand and No/100 Dollars
($2,700,000.00) or such sum as may be advanced and outstanding from time to time,
with interest on the unpaid principal balance at the rate and on the terms provided in
this Promissory Note (including all renewals, extensions or modifications hereof, this
"Note").
LOAN AGREEMENT. This Note is subject to the provisions of that certain Loan
Agreement between Bank and Borrower dated contemporaneously herewith, as
modified from time to time (the "Agreement"). All terms defined in the Agreement shall
have the same meanings when used in this Note.
USE OF PROCEEDS. Borrower shall use the proceeds of the loan evidenced by this
Note for commercial purposes, specifically to finance a portion of the acquisition costs
of certain real estate located in South Middleton Township, Cumberland County, PA.
SECURITY. Borrower has granted or will grant Bank a security interest in the collateral
described in the Loan Documents and such other security instruments as are executed
from time to time, including, but not limited to, real and personal property collateral
described in those certain security instruments, of even date herewith, as modified,
restated or replaced from time to time.
INTEREST RATE. Interest shall accrue on the unpaid principal balance of this Note
from the date hereof at the Bank's Prime Rate, as that rate may change from time to
time in accordance with changes in the Bank's Prime Rate ("Interest Rate"). "Bank's
Prime Rate" means that rate announced by Bank from time to time as its prime rate and
is one of several interest rate bases used by Bank. Bank lends at rates both above and
below Bank's Prime Rate, and Borrower acknowledges that Bank's Prime Rate is not
282007
represented or intended to be the lowest or most favorable rate of interest offered by
Bank.
DEFAULT RATE. In addition to all other rights contained in this Note, if a Default (as
defined herein) occurs and as long as a Default continues, all outstanding Obligations,
other than Obligations under any swap agreements (as defined in 11 U.S.C. § 101, as
in effect from time to time) between Borrower and Bank or its affiliates, shall bear
interest at the Interest Rate plus 3% ("Default Rate"). The Default Rate shall also apply
from acceleration until the Obligations or any judgment thereon is paid in full.
INTEREST AND FEE(S) COMPUTATION (ACTUAL/360). Interest and fees, if any,
shall be computed on the basis of a 360-day year for the actual number of days in the
applicable period ("Actual/360 Computation"). The Actual/360 Computation determines
the annual effective interest yield by taking the stated (nominal) rate for a year's period
and then dividing said rate by 360 to determine the daily periodic rate to be applied for
each day in the applicable period. Application of the Actual/360 Computation produces
an annualized effective rate exceeding the nominal rate.
REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only, commencing on December 1, 2007, and continuing
on the 1 st of each consecutive month thereafter until this Note is fully paid. Additionally,
Borrower shall pay to Bank the proceeds of sales of all or any portion of the mortgaged
real estate in accordance with the terms of the Agreement. In any event, all principal
and accrued interest shall be due and payable on November 1, 2009, which is the
Maturity Date of this Note.
RESERVE ACCOUNT. At or prior to Closing, Borrower shall fund a reserve account
with Bank in an amount equal to 24 months of interest payments, (calculated at the
current interest rate and based on the entire original principal balance due), plus
$200,000.00. Bank shall maintain control of the reserve account in accordance with
the terms set forth in the Agreement. Bank may charge the reserve account for interest
payments and other sums due under this Note or under the Loan Documents, as set
forth in the Agreement. Borrower authorizes Bank to debit the Reserve Account, that
being Demand Deposit Account No. 2000030235160 or any other account owned by
Borrower at Bank (Routing Number 031000503) designated in writing by Borrower,
beginning on the first date an interest payment is due under this Note and continuing so
long as any balance of this Note remains unpaid and outstanding. Borrower further
certifies that Borrower holds legitimate ownership of the Reserve Account and any other
account designated by Borrower to be charged for payments by Bank, and
preauthorizes this periodic debit as part of its right under said ownership.
LOAN FEE. Borrower shall pay to Bank a one-time Loan Fee at Closing in the amount
of $6,750.00 as of the date of this Note.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for
application toward payment of the Obligations shall be applied to accrued interest and
282007
then to principal. If a Default occurs, monies may be applied to the Obligations in any
manner or order deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse claim or
threatened action, the returned payment shall remain payable as an obligation of all
persons liable under this Note or other Loan Documents as though such payment had
not been made.
DEFINITIONS. Agreement. The term "Agreement", as used in this Note means that
certain Loan Agreement between Borrower and Bank dated contemporaneously
herewith and as described above. Loan Documents. The term "Loan Documents", as
used in this Note shall mean the Agreement, this Note and all other documents
identified as Loan Documents as set forth in the Agreement, but does not include swap
agreements (as defined in 11 U.S.C. §101, as in effect from time to time). Obligations.
The term "Obligations", as used in this Note and the other Loan Documents, refers to
any and all indebtedness and other obligations under this Note, all other obligations
under any other Loan Document(s), and all obligations under any swap agreements (as
defined in 11 U.S.C. § 101, as in effect from time to time) between Borrower and Bank,
or its affiliates, whenever executed. Certain Other Terms. All terms that are used but
not otherwise defined in this Note shall have the definitions provided in the Agreement
or in the other Loan Documents. All terms that are used but not otherwise defined in
any of the Loan Documents shall have the definitions provided in the Uniform
Commercial Code.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to Bank
a late charge equal to 5% of each payment past due for 10 or more days. This late
charge shall not apply to payments due at maturity or by acceleration hereof, unless
such late payment is in an amount not greater than the highest periodic payment due
hereunder.
Acceptance by Bank of any late payment without an accompanying late charge shall not
be deemed a waiver of Bank's right to collect such late charge or to collect a late charge
for any subsequent late payment received.
If this Note is secured by owner-occupied residential real property located outside the
state in which the office of Bank first shown above is located, the late charge laws of the
state where the real property is located shall apply to this Note and the late charge shall
be the highest amount allowable under such laws. If no amount is stated thereunder,
the late charge shall be 5% of each payment past due for 10 or more days.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of
Bank's reasonable expenses actually incurred to enforce or collect any of the
Obligations including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of a suit,
3 282007
in any trial, arbitration, or administrative proceeding, or in any appellate or bankruptcy
proceeding.
USURY. If at any time the effective interest rate under this Note would, but for this
paragraph, exceed the maximum lawful rate, the effective interest rate under this Note
shall be the maximum lawful rate, and any amount received by Bank in excess of such
rate shall be applied to principal and then to fees and expenses, or, if no such amounts
are owing, returned to Borrower.
DEFAULT. If any of the following occurs, a default ("Default") under this Note shall
exist: Nonpayment; Nonperformance. The failure of timely payment or performance
of the Obligations or Default under this Note or any other Loan Documents. False
Warranty. A warranty or representation made or deemed made in the Loan Documents
or furnished Bank in connection with the loan evidenced by this Note proves materially
false, or if of a continuing nature, becomes materially false. Cross Default. At Bank's
option, any default in payment or performance of any obligation under any other loans,
contracts or agreements of Borrower, any Subsidiary or Affiliate of Borrower, any
general partner of or the holder(s) of the majority ownership interests of Borrower with
Bank or its affiliates ("Affiliate" shall have the meaning as defined in 11 U.S.C. § 101, as
in effect from time to time, except that the term "Borrower" shall be substituted for the
term "Debtor" therein; "Subsidiary" shall mean any business in which Borrower holds,
directly or indirectly, a controlling interest). Cessation; Bankruptcy. The death of,
appointment of a guardian for, dissolution of, termination of existence of, loss of good
standing status by, appointment of a receiver for, assignment for the benefit of creditors
of, or commencement of any bankruptcy or insolvency proceeding by or against
Borrower, its Subsidiaries or Affiliates, if any, or any general partner of or the holder(s)
of the majority ownership interests of Borrower, or any party to the Loan Documents.
Material Business Alteration. Without prior written consent of Bank, a material
alteration in the kind or type of Borrower's business. Material Adverse Change. Bank
determines in good faith, in its sole discretion, that the prospects for payment or
performance of the Obligations are impaired or there has occurred a material adverse
change in the business or prospects of Borrower, financial or otherwise.
REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan
Documents, Bank may at any time thereafter, take the following actions: Bank Lien.
Foreclose its security interest or lien against Borrower's deposit accounts and
investment property without notice. Acceleration Upon Default. Accelerate the
maturity of this Note and, at Bank's option, any or all other Obligations, other than
Obligations under any swap agreements (as defined in 11 U.S.C. § 101, as in effect
from time to time) between Borrower and Bank, or its affiliates, which shall be due in
accordance with and governed by the provisions of said swap agreements; whereupon
this Note and the accelerated Obligations shall be immediately due and payable;
provided, however, if the Default is based upon a bankruptcy or insolvency proceeding
commenced by or against Borrower or any guarantor or endorser of this Note, all
Obligations (other than Obligations under any swap agreement as referenced above)
shall automatically and immediately be due and payable. Remedies in Agreement.
4 282007
Exercise all other rights and remedies provided to Bank under the terms of the
Agreement or under any of the other Loan Documents. Cumulative. Exercise any
rights and remedies as provided under the Note and other Loan Documents, or as
provided by law or equity.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such
information as shall be required under the terms of the Agreement and such additional
financial information as Bank may reasonably request from time to time, including but
without limitation information pertaining to the mortgaged real estate or prospective
sales of the mortgaged real estate or any part thereof. Such information shall be true,
complete and accurate.
FINANCIAL COVENANTS. Borrower agrees to the following provisions from the date
hereof until final payment in full of the Obligations, unless Bank shall otherwise consent
in writing, using the financial information for Borrower, its subsidiaries, affiliates and its
holding or parent company, as applicable: Deposit Relationship. Borrower shall
maintain its primary depository account with Bank.
CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A
POWER OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT
AGAINST BORROWER. IN GRANTING THIS WARRANT OF ATTORNEY TO
CONFESS JUDGMENT AGAINST BORROWER, THE BORROWER, FOLLOWING
CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL
FOR BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF,
HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND
UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE BORROWER HAS OR
MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER
THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF
AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE INCLUDING,
WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND
ATTACHMENT OF THE BORROWER'S BANK ACCOUNT AND OTHER ASSETS.
BORROWER ACKNOWLEDGES AND UNDERSTANDS THAT BY ENTERING INTO
THIS NOTE CONTAINING A CONFESSION OF JUDGMENT CLAUSE THAT
BORROWER IS VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY GIVING UP
ANY AND ALL RIGHTS, INCLUDING CONSTITUTIONAL RIGHTS, THAT
BORROWER HAS OR MAY HAVE TO NOTICE AND A HEARING BEFORE
JUDGMENT CAN BE ENTERED AGAINST BORROWER AND BEFORE THE
BORROWER'S ASSETS, INCLUDING, WITHOUT LIMITATION, ITS BANK
ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON AND/OR
ATTACHED. BORROWER UNDERSTANDS THAT ANY SUCH GARNISHMENT,
LEVY, EXECUTION AND/OR ATTACHMENT SHALL RENDER THE PROPERTY
GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED IMMEDIATELY
UNAVAILABLE TO BORROWER. IT IS SPECIFICALLY ACKNOWLEDGED BY
BORROWER THAT THE BANK HAS RELIED ON THIS WARRANT OF ATTORNEY
AND THE RIGHTS WAIVED BY BORROWER HEREIN IN RECEIVING THIS NOTE
5 282007
AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE
BORROWER.
If a Default occurs under this Note or any other Loan Documents, each Borrower hereby
jointly and severally authorizes and empowers any attorney of any court of record or the
prothonotary or clerk of any county in the Commonwealth of Pennsylvania, or in any
jurisdiction where permitted by law or the clerk of any United States District Court, to
appear for Borrower in any and all actions which may be brought hereunder and enter
and confess judgment against the Borrower or any of them in favor of the Bank for such
sums as are due or may become due hereunder or under any other Loan Documents,
together with costs of suit and actual collection costs including, without limitation,
reasonable attorneys' fees equal to 5% of the Obligations then due and owing but in no
event less than $5,000.00, with or without declaration, without prior notice, without stay
of execution and with release of all procedural errors and the right to issue executions
forthwith. To the extent permitted by law, Borrower waives the right of inquisition on any
real estate levied on, voluntarily condemns the same, authorizes the prothonotary or
clerk to enter upon the writ of execution this voluntary condemnation and agrees that
such real estate may be sold on a writ of execution; and also waives any relief from any
appraisement, stay or exemption law of any state now in force or hereafter enacted.
Borrower further waives the right to any notice and hearing prior to the execution,
levy, attachment or other type of enforcement of any judgment obtained
hereunder, including, without limitation, the right to be notified and heard prior to
the garnishment, levy, execution upon and attachment of Borrower's bank
accounts and other property. If a copy of this Note verified by affidavit of any officer
of the Bank shall have been filed in such action, it shall not be necessary to file the
original thereof as a warrant of attorney, any practice or usage to the contrary
notwithstanding. The authority herein granted to confess judgment shall not be
exhausted by any single exercise thereof, but shall continue and may be exercised from
time to time as often as the Bank shall find it necessary and desirable and at all times
until full payment of all amounts due hereunder and under any other Loan Documents.
The Bank may confess one or more judgments in the same or different jurisdictions for
all or any part of the Obligations arising hereunder or under any other Loan Documents
to which Borrower is a party, without regard to whether judgment has theretofore been
confessed on more than one occasion for the same Obligations. In the event that any
judgment confessed against the Borrower is stricken or opened upon application by or
on behalf of Borrower or any obligor for any reason, the Bank is hereby authorized and
empowered to again appear for and confess judgment against Borrower for any part or
all of the Obligations owing under this Note and/or for any other liabilities, as herein
provided.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this
Note and other Loan Documents shall be valid unless in writing and signed by an officer
of Bank. No waiver by Bank of any Default shall operate as a waiver of any other
Default or the same Default on a future occasion. Neither the failure nor any delay on
the part of Bank in exercising any right, power, or remedy under this Note and other
Loan Documents shall operate as a waiver thereof, nor shall a single or partial exercise
6 282007
thereof preclude any other or further exercise thereof or the exercise of any other right,
power or remedy.
Except to the extent otherwise provided by the Loan Documents or prohibited by law,
each Borrower and each other person liable under this Note waives presentment,
protest, notice of dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and all other notices of any
kind. Further, each agrees that Bank may (i) extend, modify or renew this Note or make
a novation of the loan evidenced by this Note, and/or (ii) grant releases, compromises
or indulgences with respect to any collateral securing this Note, or with respect to any
Borrower or other person liable under this Note or any other Loan Documents, all
without notice to or consent of each Borrower and other such person, and without
affecting the liability of each Borrower and other such person; provided, Bank may not
extend, modify or renew this Note or make a novation of the loan evidenced by this
Note without the consent of the Borrower, or if there is more than one Borrower, without
the consent of at least one Borrower; and further provided, if there is more than one
Borrower, Bank may not enter into a modification of this Note which increases the
burdens of a Borrower without the consent of that Borrower.
MISCELLANEOUS PROVISIONS. Assignment. This Note and the other Loan
Documents shall inure to the benefit of and be binding upon the parties and their
respective heirs, legal representatives, successors and assigns. Bank's interests in and
rights under this Note and the other Loan Documents are freely assignable, in whole or
in part, by Bank. In addition, nothing in this Note or any of the other Loan Documents
shall prohibit Bank from pledging or assigning this Note or any of the other Loan
Documents or any interest therein to any Federal Reserve Bank. Borrower shall not
assign its rights and interest hereunder without the prior written consent of Bank, and
any attempt by Borrower to assign without Bank's prior written consent is null and void.
Any assignment shall not release Borrower from the Obligations. Applicable Law;
Conflict Between Documents. This Note and, unless otherwise provided in any other
Loan Document, the other Loan Documents shall be governed by and interpreted in
accordance with federal law and, except as preempted by federal law, the laws of the
state named in Bank's address on the first page hereof without regard to that state's
conflict of laws principles. If the terms of this Note should conflict with the terms of any
loan agreement or any commitment letter that survives closing, the terms of this Note
shall control. Borrower's Accounts. Except as prohibited by law, Borrower grants
Bank a security interest in all of Borrower's deposit accounts and investment property
with Bank and any of its affiliates. Swap Agreements. All swap agreements (as
defined in 11 U.S.C. § 101, as in effect from time to time), if any, between Borrower and
Bank or its affiliates are independent agreements governed by the written provisions of
said swap agreements, which will remain in full force and effect, unaffected by any
repayment, prepayment, acceleration, reduction, increase or change in the terms of this
Note, except as otherwise expressly provided in said written swap agreements, and any
payoff statement from Bank relating to this Note shall not apply to said swap
agreements except as otherwise expressly provided in such payoff statement.
Payments. Subject to the terms of the Agreement, all payments shall be due to the
282007
Bank at Wachovia Bank, National Association, 600 Penn Street, P.O. Box 1102,
Reading, PA 19603; or other such address as provided by Bank in writing. Notices.
Any notices to Borrower shall be sufficiently given, if in writing and mailed or delivered
to the Borrower's address shown above or such other address as provided hereunder,
and to Bank, if in writing and mailed or delivered to Wachovia Bank, National
Association, ATTN: Gary Moyer, Mail Code PA6466, P.O. Box 1102, 600 Penn Street,
Reading, PA 19603 or such other address as Bank may specify in writing from time to
time. Notices to Bank must include the mail code. In the event that Borrower changes
Borrower's address at any time prior to the date the Obligations are paid in full,
Borrower agrees to promptly give written notice of said change of address by registered
or certified mail, return receipt requested, all charges prepaid. Plural; Captions. All
references in the Loan Documents to Borrower, guarantor, person, document or other
nouns of reference mean both the singular and plural form, as the case may be, and the
term "person" shall mean any individual, person or entity. The captions contained in the
Loan Documents are inserted for convenience only and shall not affect the meaning or
interpretation of the Loan Documents. Advances. Bank may, in its sole discretion,
make other advances which shall be deemed to be advances under this Note, even
though the stated principal amount of this Note may be exceeded as a result thereof.
Posting of Payments. All payments received during normal banking hours after
2:00 p.m. local time at the office of Bank first shown above shall be deemed received at
the opening of the next banking day. Fees and Taxes. Borrower shall promptly pay all
documentary, intangible recordation and/or similar taxes on this transaction whether
assessed at closing or arising from time to time. LIMITATION ON LIABILITY; WAIVER
OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY
ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR
ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR
AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH
THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR
DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED
HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A
REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES.
EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO
PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN
THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR
CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION,
MEDIATION, JUDICIALLY OR OTHERWISE. Patriot Act Notice. To help fight the
funding of terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies each person who
opens an account. For purposes of this section, account shall be understood to include
loan accounts. Final Agreement. This Note and the other Loan Documents represent
the final agreement between the parties and may not be contradicted by evidence of
prior, contemporaneous or subsequent agreements of the parties. There are no
unwritten agreements between the parties.
8 282007
WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE
HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT
EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE
LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT TO BANK TO ACCEPT THIS NOTE. EACH OF THE PARTIES
AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE AND REPLACE ANY
PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWEEN THE
PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR
AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO
OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED BY, THIS
NOTE.
IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be duly executed under seal.
WITNESS: RAMA DEVELOPMENT, LLC
By:
Ramesh S. Rao, Member
9 282007
STATE OF MASSACHUSETTS
COUNTY OF WORCESTER
: SS
On this /(n day of GAO , 2007, before me, a notary public,
the undersigne officer, personally appeared RAMESH S. RAO, who acknowledged
himself to be a member of RAMA Development, LLC, and that he as such member,
being authorized to do so, executed the foregoing Promissory Note for the purposes
therein contained, by signing the name of the limited liability company by himself as
such member.
IN WITNESS WHEREOF, I hereunto set my han and official seal.
T
(NOTARIAL SEAL)
otary Pubic 4czA?? L
LMAI?Mt??" y Commission Expires: V2116
NO" PUWla
Cmvnmwe#mof m?o&t"b
My Qonxnteelon E?opNw ApfN $, ?0
10 282007
r5
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") dated this /46' day of
In , 2007, between RAMA DEVELOPMENT, LLC, a Pennsylvania limited
liability company, maintaining an address of 4209 York Road, New Oxford, PA 17350
(the "Borrower") and WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, maintaining an office at 600 Penn Street, P.O. Box 1102, Reading,
PA 19603 (the "Bank").
BACKGROUND
The Borrower has requested financing from the Bank, and the Bank has agreed
to extend financing subject to the terms and conditions set forth in this Agreement. As
more fully set forth herein, the Bank financing represents a real estate acquisition loan
under which $2,700,000.00 will be advanced for purposes of acquisition of 48 ± acres of
land located north of Lisburn Road, South Middleton Township, Cumberland County, PA
under the terms and conditions set forth herein.
AGREEMENT
THEREFORE, intending to be legally bound, the Bank and the Borrower agree
as follows:
SECTION 1. DEFINITIONS.
1.1 General Provisions. Unless expressly provided in this Agreement, or
unless the context requires otherwise:
(a) terms used in this Agreement without definition which are defined in
the Uniform Commercial Code as enacted in Pennsylvania shall have the meanings
assigned to them in the Pennsylvania Uniform Commercial Code; and
(b) all accounting terms used in this Agreement without definition shall
have the meanings assigned to them in accordance with generally accepted accounting
principles, as applied in the preparation of the latest financial statements delivered to
the Bank pursuant to this Agreement.
1.2 Defined Terms - General. The following terms shall have the following
meanings:
(a) Agreement. This Loan Agreement and any future amendments or
supplements to this Loan Agreement.
assigns.
stated above.
(b) Bank. Wachovia Bank, National Association, its successors and/or
(c) Borrower. RAMA Development, LLC, maintaining the address as
282062
(d) Business Day. A day which the Bank is open for the transaction of
banking business.
(e) Default. Any event specified in Paragraph 9.1 of this Agreement,
whether or not any requirement for notice or lapse of time or any other condition has
been satisfied.
(f) Event of Default. Any event specified in Paragraph 9.1 of this
Agreement, provided that any requirement for notice or lapse of time or any other
condition has been satisfied.
(g) Guarantors. Collectively, (i) Penndel Land Co., a Delaware
business corporation, its successors and/or assigns and (ii) Ramesh S. Rao, an adult
individual, his heirs, executors, administrators and personal representatives.
(h) Guaranty Agreements. Those certain Unlimited Guaranty
agreements, executed and delivered by the Guarantors to the Bank
contemporaneously with the execution and delivery of this Agreement as set forth in
Section 4 hereof.
(i) Liabilities. The principal and interest evidenced by the Note, and all
other liabilities of Borrower to Bank, whether hereunder or otherwise, whether now
existing or hereafter incurred, matured or unmatured, non-contingent or contingent,
created directly by Bank but not acquired by Bank from others by assignment or
otherwise, including all past and future advances or re-advances, any extensions,
modifications or renewals thereof in substitution therefor; all amounts advanced by Bank
under the Note or hereunder or on behalf of Borrower hereunder; all late charges,
penalties, fees and other such sums due under the Note; all liabilities (including
reasonable attorneys fees and other professional fees, and costs) incurred by Bank
arising from or related to any hazardous materials or dangerous environmental
conditions at the Real Estate; and all of Bank's costs and expenses incurred in
connection with the enforcement and collection of the foregoing liabilities, whether or
not suit is instituted, and whether or not bankruptcy or insolvency proceedings have
been instituted by or against Borrower, including without limitation, reasonable fees and
costs of attorneys, appraisers, accountants, consultants and other professionals.
(j) Loan Documents. This Agreement, the Note, the Mortgage, the
Guaranty Agreements, the Pledge Agreement, the Subordination Agreements, and all
resolutions and other documents executed in conjunction with any of the foregoing,
together with all amendments, supplements, replacements and substitutions thereof.
(k) Loan. The loan to be made to Borrower as set forth in this
Agreement at Section 2.
2 282062
(1) Lot. A portion of the Real Estate for which subdivision approval
has been obtained and which has become, through the subdivision and land
development process in the Township, a separately conveyable parcel of real estate.
(m) Maturity Date. November 1, 2009, which is the date all principal,
interest and other sums due under the Note are repayable in full, unless that date is
extended, in writing, by the Bank in accordance with the terms of this Agreement.
(n) Mortgage. That certain Open-End Purchase Money Mortgage and
Assignment of Rents in the amount of $2,700,000.00 bearing this date executed and
delivered by the Borrower to the Bank as more fully described at Paragraph 4.1 hereof.
(o) Note. That certain Promissory Note in the original principal amount
of $2,700,000.00, executed and delivered by Borrower to Bank contemporaneously
herewith, together with all amendments thereto.
(p) Pledge Agreement. That certain Pledge Agreement executed and
delivered to the Bank by Borrower contemporaneously herewith by which Borrower
pledges and assigns to the Bank all funds held in the Reserve Account as more fully set
forth therein, which Pledge Agreement is identified at Paragraph 4.2 hereof.
(q) Prime Rate. The rate announced by Bank from time to time as its
prime rate and is one of several interest rate bases used by Bank. Bank lends at rates
both above and below Bank's Prime Rate, and Borrower acknowledges that Bank's
Prime Rate is not represented or intended to be the lowest or most favorable rate of
interest offered by Bank.
(r) Obligations. All sums due by Borrower to the Bank under the Note,
this Agreement, or any of the Loan Documents (exclusive of obligations under any swap
agreements as defined in 11 U.S.C. § 101, as in effect from time to time).
(s) Real Estate. That certain tract of land located north of Lisburn
Road, situate in South Middleton Township, Cumberland County, Pennsylvania, being
further described on Exhibit "A" attached to the Mortgage and incorporated by
reference, together with all improvements now or to be constructed thereon.
(t) Reserve Account. A deposit account to be maintained by Borrower
at Bank which shall not be subject to withdrawal, check or charge by Borrower, and
which shall be subject to the terms and conditions set forth at Section 2.3 hereof.
(u) Settlement. The date on which this Agreement and the Loan
Documents are executed by the Bank, the Borrower, and the Guarantors in accordance
with Section 3.1 below.
(v) Subordinated Creditor(s). Collectively, Penndel Land Co. and the
Estate of Ralph C. Otto, their respective successors and assigns.
3 282062
(w) Subordination Agreements. Those certain Power of Attorney and
Subordination Agreements, executed in accordance with the terms of Paragraph 4.1
hereof by Penndel Land Co. and by the Estate of Ralph C. Otto, confirming the
subordination of mortgages to be granted by Borrower in favor of Penndel Land Co. and
Ralph C. Otto to the first lien priority mortgage in favor of Bank, confirming the
subordination of the indebtedness of Borrower to Penndel Land Co. and the Estate of
Ralph C. Otto to the indebtedness of Borrower to Bank, and appointing Bank as
attorney-in-fact for the purposes set forth therein.
(x) Township. South Middleton Township, Cumberland County, PA.
SECTION 2. REAL ESTATE ACQUISITION LOAN
2.1 General Loan Terms. Subject to the terms of this Agreement, Bank
agrees to provide a credit accommodation to Borrower in the principal sum of
$2,700,000.00 to finance the acquisition of the Real Estate, on a non-revolving basis.
2.2 Note. At Settlement, the Borrower shall execute and deliver to the Bank
its promissory note in the amount of $2,700,000.00, and which promissory note shall
(a) be dated the date of Settlement; (b) provide that the principal balance outstanding
shall bear interest at the Prime Rate; (c) provide that interest on the outstanding amount
due shall be payable monthly until such time as the Note has been permanently repaid
in full; (d) provide that principal shall be paid, from the settlement of the sale of the Real
Estate or any Lot, in an amount equal to at least 80% of the gross sales price of the
Real Estate or any Lot; and (e) shall provide that, unless demand therefor has
previously been made due to the occurrence of an Event of Default, the entire balance
due, including all principal, interest and other sums due thereon shall be due and
payable by Borrower to Bank on or by November 1, 2009, which is the Maturity Date of
the Note.
2.3 Reserve Account. At or prior to Settlement hereunder, Borrower shall
establish a Reserve Account, being a deposit account maintained at the Bank and
owned by Borrower subject to the following conditions. The original balance to be
deposited into the Reserve Account shall equal or exceed the amount of 24 months of
interest under the Note (calculated at the current rate of interest and based on the
original principal amount of the Note), plus $200,000.00. The Reserve Account shall
not be subject to withdrawal, check or charge by Borrower. Bank is entitled to debit the
Reserve Account for all payments of interest which come due under the Note, together
with all other liabilities of Borrower to Bank as and when such become due. The
Reserve Account, and Borrower's interest therein, shall be subject to a separate Pledge
Agreement, which shall not impair the Bank's general rights of offset against the entire
balance held in the Reserve Account, from time to time. Notwithstanding the foregoing,
if a balance remains in the Reserve Account following permanent repayment in full of all
of Borrower's Liabilities and Obligations to the Bank, said balance shall be released by
Bank to Borrower.
4 282062
SECTION 3. GENERAL LOAN TERMS.
3.1 Settlement. Settlement on the Loan shall occur contemporaneously with
the execution and delivery of this Agreement.
3.2 Late Charges. The Borrower acknowledges that it shall be responsible to
the Bank for late charges in accordance with the provisions of the Note.
3.3 Payments.
(a) General. Borrower acknowledges its primary obligation and
responsibility to make all payments on the Note when due, notwithstanding Bank's right
to debit the Reserve Account as set forth herein.
(b) Real Estate Sale. All payments of principal derived from the sale of
the Real Estate or the sale of a Lot shall be made directly payable to the Bank, and paid
at settlement of each as a condition of the Bank's release of its Mortgage to permit clear
title to be conveyed. Upon the sale of the Real Estate (in its entirety), the Bank shall not
be obliged to release the lien of its Mortgage for less than payment in full of the
Liabilities and Obligations due under the Loan Documents. Upon the sale of any Lot,
the Bank shall not be obliged to release the lien of its Mortgage for less than eighty
(80%) percent of the gross sale proceeds of such Lot, provided that the Bank shall have
approved the sales price of any such Lot in writing and in advance of the execution of
an agreement of sale for such lot. The Bank's consent to any Lot sale shall be
conditional upon the purchase price equaling $115,000.00 per acre for the parcel to be
conveyed.
(c) Maturity. If the Bank has not been paid in full prior to the Maturity
Date, Borrower shall pay an amount sufficient to pay the Obligations in full, on or by the
Maturity Date. The Bank shall be entitled to charge the Reserve Account for all sums
remaining due as of the Maturity Date, and to the extent the Reserve Account balance
is insufficient to pay the Obligations in full, Borrower is responsible for payment from its
separate funds.
3.4 Additional Conditions of Advance. The Bank shall not advance credit
under the Note unless and until the following additional conditions are met:
(a) Borrower shall provide the Bank at Settlement with written evidence
of its fee simple ownership of the Real Estate and repayment of prior indebtedness
secured by that Real Estate, with any prior mortgage or lien to have been marked
satisfied on the public records;
(b) Borrower shall have executed and delivered to the Bank the
Mortgage ($2,700,000.00), which shall have been recorded in the public records of
Cumberland County, PA;
282062
(c) Borrower shall have provided the Bank at Settlement with title
insurance, or a marked-up title insurance commitment representing the title company's
intention of, insuring its first mortgage lien priority on the Real Estate, at Borrower's sole
expense, and subject only to such conditions and exceptions as are satisfactory to
Bank;
(d) No Default shall have occurred hereunder or under any of the Loan
Documents, and
(e) All conditions precedent set forth in Section 6 hereof shall have
been satisfied.
3.5 Real Estate Sales.
(a) The parties contemplate that the Real Estate purchased with the
proceeds of the Loan will be marketed for sale, and that the Obligations of Borrower
shall be repaid in full before the Maturity Date from proceeds of sale of the Real Estate,
or Lots subdivided from the Real Estate. All costs and expenses associated with
marketing the Real Estate or portions thereof, together with all costs and expenses
related to the land development and subdivision plan process within the Township, as
well as compliance with any local municipal authority, state agency or other regulatory
bureau with jurisdiction shall be the sole responsibility of Borrower.
(b) Borrower acknowledges and agrees that all earnest money or down
money paid on account of any agreement of sale for the transfer and sale of the Real
Estate or any Lot subdivided from the Real Estate shall be deposited in a deposit
account maintained at the Bank. In conjunction with, or prior to, the deposit of down
money into such deposit account, Borrower shall provide the Bank with a fully signed
copy of the agreement of sale to which such deposit relates.
(c) Borrower acknowledges and agrees that the Bank will release the
Real Estate from the lien of its Mortgage (or a Lot or Lots within the Real Estate from
the lien of its Mortgage) only on conditions satisfactory to Bank, as elsewhere set forth
in this Agreement. Provided no Default or Event of Default exists, and provided other
terms and conditions presented to the Bank are satisfactory to the Bank, the Bank shall
be paid at least 80% of the gross sale proceeds of every sale of a Lot subdivided from
the Real Estate; provided, however, that Borrower shall be responsible for payment of
all commissions, realty transfer taxes, fees, costs and other associated expenses from
the remaining 20%, and provided further that if all such taxes, fees and expenses are
paid and there remains a balance available for distribution at Settlement, such balance
shall be paid to the Bank until the Obligations to the Bank are paid in full (and not to any
Subordinated Creditor or on account of any subordinated mortgage).
3.6 No Further Commitment. Borrower acknowledges and agrees that no
provision hereof, nor any course of dealing by the Bank in connection herewith, shall be
6 282062
deemed to create or imply the existence of any commitment or obligation by the Bank to
extend credit to Borrower except as provided and under all terms and conditions set
forth herein.
SECTION 4. COLLATERAL/GUARANTY/DEBT SUBORDINATION.
4.1 Real Estate Collateral. The Loan as set forth herein is and shall be
secured upon a perfected first lien mortgage on the Real Estate. It is contemplated that
two subordinate mortgages shall be filed encumbering the Real Estate, subject to
specific subordination terms and conditions. In that regard, the following documents
shall be delivered at Settlement:
(a) Mortgage. At Settlement, the Borrower will execute and deliver
to the Bank its Open-End Purchase Money Mortgage and Assignment of Rents in the
amount of $2,700,000.00, encumbering the Real Estate (the "Mortgage"). Said
Mortgage will be recorded in the Office of the Recorder of Deeds of Cumberland
County, PA, thereby granting Bank a first lien priority purchase money mortgage on the
Real Estate.
(b) Limited Power of Attorney and Subordination Agreement - Penndel
Land Co. At Settlement Penndel Land Co. shall execute its Limited Power of Attorney
and Subordination Agreement, in recordable form, evidencing and confirming that the
lien of the mortgage of Borrower in favor of Penndel Land Co. is subordinate in lien
priority to the Mortgage in favor of Bank, and confirming that all indebtedness due from
Borrower to Penndel Land Co. under any promissory note or other evidence of
indebtedness secured by the Penndel Land Co. mortgage is subordinate, both in
payment and priority, to all of the Obligations of Borrower to Bank, and under which
Penndel Land Co. grants Bank a power of attorney to release the Real Estate, or any
Lot created from any portion of the Real Estate, from the lien of the mortgage in favor of
Penndel Land Co. in order to clear title to permit a sale of the Real Estate, or a Lot
created within the Real Estate, in accordance with the terms set forth therein.
(c) Limited Power of Attorney and Subordination Agreement- Estate of
Ralph C. Otto. At Settlement the Estate of Ralph C. Otto shall execute its Limited
Power of Attorney and Subordination Agreement, in recordable form, evidencing and
confirming that the lien of the mortgage of Borrower in favor of the Estate of Ralph C.
Otto is subordinate in lien priority to the Mortgage in favor of Bank, and confirming that
all indebtedness due from Borrower to the Estate of Ralph C. Otto under any
promissory note or other evidence of indebtedness secured by the Estate of Ralph C.
Otto mortgage is subordinate, both in payment and priority, to all of the Obligations of
Borrower to Bank, and under which the Estate of Ralph C. Otto grants Bank a power of
attorney to release the Real Estate, or any Lot created from any portion of the Real
Estate, from the lien of the mortgage in favor of the Estate of Ralph C. Otto in order to
clear title to permit a sale of the Real Estate, or a Lot created within the Real Estate, in
accordance with the terms set forth therein.
7 282062
4.2 Reserve Account/Pledge Agreement. At Settlement, Borrower shall
deliver to Bank its Pledge Agreement whereby all funds held in the Reserve Account
shall be pledged to the Bank as collateral for Borrower's Obligations under the Note and
Loan Documents.
4.3 Guaranty Agreements. All of the Obligations of Borrower to Bank shall be
subject to the guaranty of payment and contract of surety of Penndel Land Co. and
Ramesh S. Rao, and in that regard the following documents shall be delivered at
Settlement:
(a) At Settlement, Penndel Land Co. shall execute and deliver to Bank
its Unconditional Guaranty agreement by which it guaranties payment of, and becomes
surety for, repayment of all of the Obligations and Liabilities of the Borrower to the Bank
under the Note and under this Agreement; and
(b) At Settlement, Ramesh S. Rao shall execute and deliver to Bank
his Unconditional Guaranty agreement by which he guaranties payment of, and
becomes surety for, repayment of all of the Obligations and Liabilities of the Borrower to
the Bank under the Note and under this Agreement.
4.4 Supplemental Document Requirements.
the Obligations have been paid in full, the Borrower
execute all documents reasonably requested by Bar
priority of the liens granted hereunder, or to pro)
Borrower's expense. In that regard, Borrower grar
officers a limited power of attorney to execute any sui
behalf.
From this date forward until all of
shall, upon the request of Bank,
k to continue the lien, force and
ide notice of such liens, all at
is Bank and its duly authorized
h supplemental documents on its
SECTION 5. REPRESENTATIONS AND WARRANTIES.
In order to induce Lender to enter into this Agreement and to make the Loan, the
Borrower represents and warrants to Lender that:
5.1 Organization and Qualification. The Borrower is a limited liability company
duly organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation, which is the Commonwealth of Pennsylvania, and is duly qualified to
conduct business in the Commonwealth of Pennsylvania and in any other jurisdiction in
which its conduct of business or its ownership of assets requires such qualification.
5.2 Power and Authority. The Borrower has the legal power to execute, deliver
and perform this Agreement and the Loan Documents, and has taken all necessary
corporate action to authorize the borrowings hereunder on the terms and conditions of this
Agreement and the execution, delivery and performance of this Agreement and the Loan
Documents. No consent of any other party (including members or officers of the
Borrower) and no consent, license, approval or authorization of, or registration or
declaration with, any governmental authority, bureau or agency is required in connection
282062
with the execution, delivery, performance, validity or enforceability of this Agreement and
the Loan Documents.
5.3 Enforceability. This Agreement constitutes, and the Loan Documents, when
executed and delivered to Lender pursuant to the provisions of this Agreement, will
constitute valid obligations of the Borrower legally binding upon it and enforceable in
accordance with their respective terms, except as their enforceability may be limited by
bankruptcy, insolvency or other laws of general application relating to or affecting the
enforcement of creditors' rights.
5.4 Conflict with Other Instruments. The execution, delivery and performance of
this Agreement and the Loan Documents, will not violate or contravene any provision of
any existing law or regulation or decree of any court, governmental authority, bureau or
agency having jurisdiction in the premises or of the certificate of incorporation or of the by-
laws of the Borrower or of any mortgage, indenture, security agreement, contract
undertaking or other agreement to which the Borrower is a party or which purports to be
binding upon it or any of its properties or assets except to the extent a written waiver
regarding any such violation shall have been delivered to Lender concurrently with the
execution hereof, and will not result in the creation or imposition of any lien, charge, or
encumbrance on, or security interest in, any of its properties or assets pursuant to the
provisions of any such mortgage, indenture, security agreement, contract, undertaking or
other agreement.
5.5 Litigation. There are no actions, suits or proceedings before any court or
governmental department or agency (whether or not purportedly on behalf of the
Borrower) pending or, to the knowledge of the Borrower threatened in writing (a) with
respect to any of the transactions contemplated by this Agreement or (b) against or
affecting the Borrower or any of its properties which, if adversely determined, would have a
material adverse effect upon the financial condition, business or operations of the
Borrower or the ability of Borrower to repay the Note.
5.6 Properties. Borrower has legally enforceable leases of, or good and
marketable title to and all its properties and assets, real and personal, and (except for
defects of title to real property which may affect marketability but which do not materially
impair the value or usefulness thereof), subject to no mortgage, security interest, pledge,
lien, charge, encumbrance or title retention or other security agreement or arrangement of
any nature whatsoever, except as permitted by this Agreement.
5.7 Default. The Borrower is not in default under any material existing
agreement which would have a material adverse effect on the business properties or
financial condition of Borrower, and no Default hereunder has occurred and is continuing.
5.8 Taxes. The Borrower has filed or caused to be filed all tax returns
(including, without limitation, those relating to Federal and state income taxes) required to
be filed and has paid all taxes shown to be due and payable on said returns or on any
assessments made against it (other than those being contested in good faith by
9 282062
appropriate proceedings for which adequate reserves have been provided on its books).
No tax liens have been filed against the property or assets of the Borrower and no claims
are being asserted with respect to such taxes which, if adversely determined, would have
a material adverse effect upon the financial condition, business or operations of the
Borrower.
5.9 Financial Condition. The financial information with respect to the Borrower
which has been delivered to Bank is true and correct and presents fairly, accurately and
completely the financial position of the Borrower as of dates and for the periods for which
the information is furnished. All financial statements delivered in accordance with this
Agreement shall have been prepared in accordance with generally accepted accounting
principles and practices applied on a consistent basis, except as indicated to such financial
statements or a note thereto. There have been no materially adverse changes in the
financial condition, business or operations of the Borrower, except as disclosed in writing
to Lender heretofore or concurrently herewith. No event has occurred which could
reasonably be expected to interfere substantially with the normal business operations of
the Borrower.
5.10 Lien Priority. Borrower warrants to Bank that the mortgage lien granted to
Bank by the Mortgage represents a first lien mortgage on the Real Estate, subject to no
adverse claim of ownership or prior lien, mortgage lien, judgment, tax lien (accrued, filed or
otherwise) or other rights or interests. Borrower further warrants that no junior lien
mortgage shall be suffered or granted by Borrower so long as any amount remains due
the Note, except the permitted Subordinate Mortgage liens as permitted herein.
5.11 Regulation U. The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System), and no part of
the proceeds of the Loan will be used by any Borrower to purchase or carry any margin
stock or to reduce or retire any indebtedness incurred for such purpose or to extend credit
to others for such purpose. The Borrower is not a "holding company", or a "subsidiary
company" of a "holding company" or "affiliate" or a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility Holding
Company Act of 1935 and is not required to be registered as a "investment company"
under the Investment Company Act of 1940. Borrower is not (a) an "investment company"
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940 as
amended; or (b) subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act or any other federal or state
statute that restricts or limits Borrower's ability to incur indebtedness, pledge its assets or
to perform its obligations hereunder, or under any other Loan Document; and the making
of the advances on the Loan, the application of the proceeds and repayment thereof by
Borrower, and the consummation of the transactions contemplated by this Agreement and
the other Loan Documents, will not violate any provision of any such statute or any rule,
regulation or order issued by the Securities and Exchange Commission.
10 282062
5.12 Compliance with Laws. Borrower is in compliance in all respects with all
federal, state and local laws, rules and regulations applicable to its properties,
operations, business, and finances, except to the extent the failure to so comply would
not result in a material adverse effect in Borrower's financial condition. The Borrower is
in compliance with all laws, orders, writs, injunctions and decrees applicable to it or to
its properties, except (i) to the extent the failure to so comply would not result in a
material adverse effect in Borrower's financial condition, and (ii) in such instances in
which such applicable law or order, writ, injunction or decree is being contested in good
faith by appropriate proceedings diligently conducted or the failure to comply therewith,
either individually or in the aggregate, could not reasonably be expected to have a
material adverse affect on the financial condition and business operations of the
Borrower.
5.13 Governmental Approvals. All necessary approvals from governmental or
quasi-governmental authorities having jurisdiction over the Borrower's business
operations including zoning or use permits, variances or special exceptions, zoning
reclassifications, land development plans, sewer permits, environmental permits and
approvals, and approvals of fire underwriters, have been obtained, are in full force and
effect, are final and the time for appeal from the granting of all such permits and
approvals has run with no appeal having been taken therefrom except, in each case, to
the extent the failure to so obtain could not be reasonably expected to have a material
adverse effect on the financial condition and business operations of Borrower. The
Borrower's use of its business property under the Lease substantially complies with
zoning, building, environmental and other applicable laws, ordinances, rules and
regulations except, in each case, to the extent the failure to so comply could not be
reasonably expected to have a material adverse effect on the financial condition and
business operations of Borrower.
5.14 Relationship of Parties. The relationship between the Bank and the
Borrower is solely that of debtor and creditor, and Bank has no fiduciary or other special
relationship with Borrower, and no term or condition of this Agreement or any of the
other Loan Documents shall be construed so as to deem the relationship between
Borrower and Bank to be other than that of debtor and creditor.
5.15 Anti-Terrorism Law. The Borrower, and to the knowledge of the Borrower,
none of its affiliates or subsidiaries is in violation of any applicable law relating to terrorism
or money laundering ("Anti-Terrorism Laws"), including Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001 (the "Executive Order"), and the USA
Patriot Act Title III of Pub. L. 107-56, signed into law October 26, 2001. The Borrower, and
to the knowledge of Borrower, no affiliate, broker or other agent of Borrower, acting or
benefiting in any capacity in connection with the Loan is any of the following:
(i) a person that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order;
11 282062
(ii) a person owned or controlled by, or acting for or on behalf of, any
person that is listed in the annex to, or is otherwise subject to the provisions of, the
Executive Order;
(iii) a person with which any Bank is prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law;
(iv) a person that commits, threatens or conspires to commit or supports
"terrorism" as defined in the Executive Order; or
(v) a person that is named as a "specially designated national and
blocked person" on the most current list published by the U.S. Treasury Department Office
of Foreign Assets Control ("OFAC") at its official website or any replacement website or
other replacement official publication of such list.
Neither Borrower nor, to the knowledge of the Borrower, any broker or other agent of
Borrower acting in any capacity in connection with the Loan conducts any business or
engages in making or receiving any contribution of funds, goods or services, to or for the
benefit of any person described above, deals in or otherwise engages in a transaction
relating to any property or interests in property blocked pursuant to the Executive Order
described above, or engages in or conspires to engage in any transaction that aids or
avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.
5.16 Binding Effect. This Agreement has been, and each of the Loan
Documents, when delivered hereunder, will have been duly executed and delivered by
Borrower. This Agreement constitutes, and each of the Loan Documents when so
delivered will constitute, a legal, valid and binding obligation of Borrower enforceable
against Borrower in accordance with its terms.
5.17 Full Disclosure. The Borrower has disclosed to the Bank all agreements,
instruments or corporate or other restrictions to which it is subject, and all other matters
known to it that individually or in the aggregate could reasonably be expected to result in a
material adverse effect on its financial condition. No report, financial statement, certificate
or other information furnished, whether orally or in writing, by or on behalf of Borrower to
the Bank, in connection with the transactions contemplated hereby and negotiation of this
Agreement are delivered hereunder or pursuant to any other Loan Document, when taken
as a whole, contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
5.18 Tax Status. The Borrower has made adequate provision in accordance
with generally accepted accounting principles for all material taxes not yet due and
payable. Borrower has never been a party to any understanding or arrangement
constituting a tax shelter within the meaning of Section 6662(d)(2)(C)(iii) of the Internal
Revenue Code or within the meaning of Section 6111(c) or (d) of the Internal Revenue
12 282062
Code as in effect, or has ever participated in a reportable transaction within the meaning
of Treasury Regulation Section 1.6011-4. The Borrower is not party to any tax sharing
plan.
5.19 Solvency. After giving effect to the transactions contemplated by this
Agreement, the Borrower will have capital and assets sufficient to carry on the business in
which it is engaged or about to be engaged, will be solvent and able to pay its debts and
other liabilities as they become due, and will own property, the present value of which on a
going concern basis is greater than the amount required to pay its debts and other
liabilities. The Borrower does not intend to incur, and does not believe that it is incurring,
obligations beyond its ability to repay as they mature.
5.20 Survival. The foregoing representations and warranties are made by the
Borrower with the knowledge and intention that Bank will rely on them in extending credit
hereunder. The Borrower acknowledges and agrees that these representations and
warranties constitute a material inducement to Bank to extend the credit accommodations
described herein. The Borrower acknowledges and agrees that these representations and
warranties will survive the execution and delivery of this Agreement and repayment of the
Obligations.
5.21 Condemnation. There is no pending condemnation, eminent domain or
similar proceeding affecting the Real Estate, and Borrower is not aware that any such
proceeding is contemplated.
5.22 No Broker's Lien or Commission. Borrower has engaged no broker, finder,
Realtor or other agent with respect to the acquisition transaction contemplated by this
Agreement, and no such broker, finder, Realtor or other agent shall have or assert any
claim or lien on the Real Estate or any of the other collateral granted to the Bank under the
terms of this Agreement. No party engaged by Borrower is entitled to any commission or
fee with respect to the transactions contemplated by this Agreement.
SECTION 6. CONDITIONS PRECEDENT TO SETTLEMENT.
The obligation of Bank to advance the Loan is subject to the following conditions
precedent:
6.1 No Default. There shall exist no Event of Default or condition which, with
either or both the giving of notice or the lapse of time, would result in an Event of
Default upon consummation of the Loan, and under any and all of Borrower's
Obligations.
6.2 Reserve Account. Borrower shall have funded the Reserve Account in an
amount sufficient to meet the requirements of Paragraph 2.3 hereof, and Bank shall
have confirmed that all funds deposited into the Reserve Account have cleared and are
immediately available.
13 282062
6.3 Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Agreement and all documents incident thereto shall
be reasonably satisfactory in substance and in form to the Bank and its counsel, and the
Bank or its counsel shall have received all information and such originals or certified or
other copies of such documents as the Bank or its counsel may reasonably request.
6.4 Financial Condition - Borrower. Guarantors. The financial condition of
both Borrower and Guarantors shall be substantially as existed as of the last reported
financial information reviewed by Bank, and neither Borrower nor Guarantors, or any of
them, shall have suffered a deterioration of financial condition which, in Bank's sole
judgment and discretion, shall have the effect of materially decreasing the credit
worthiness of Borrower or Guarantors, or any of them.
6.5 Real Estate. The Borrower shall have, as of Settlement, good and
marketable title to the Real Estate and all its other properties and assets, real and
personal, and (except for defects of title to real property which do not affect
marketability and which do not materially impair the value or usefulness thereof),
subject to no mortgage, security interest, pledge, lien, encumbrance or title retention, or
other security agreement or arrangement of any nature whatsoever, except those in
favor of the Bank and those liens subordinated to Bank referenced at Paragraph 4.1
hereof.
6.6 Flood Zone Certification/Wetlands. Bank shall have received proof,
satisfactory to Bank, that the Real Estate is not, in whole or in part, located in any
federal or state designated flood zone, and that the Real Estate contains no wetlands
and that the Real Estate is not subject, for financing purposes, to mandatory flood
insurance.
6.7 Insurance Coverages. All insurance coverages required by the Mortgage,
including but not limited to property/hazard coverage and liability coverage, shall have
been obtained, with premiums paid and copies of policies including coverages as
required hereunder naming the Bank as mortgagee and loss payee shall have been
delivered to the Bank at or prior to Settlement.
6.8 Appraisal. As a condition of Settlement, the Bank shall have received an
appraisal of the Real Estate, prepared by a licensed appraiser satisfactory to the Bank
and performed by and certified to the Bank to be in accordance with Uniform Standards
of Professional Appraisal Practice ("USPAP"). Such appraisal report shall indicate an
opinion of value, utilizing an income approach on an "as is" basis which shall be
satisfactory to Bank in its sole discretion.
6.9 Title Insurance. Contemporaneously with Settlement, Borrower shall
provide Bank with satisfactory evidence of its fee simple title to the Real Estate,
together with a mortgagee title insurance policy (or a marked-up commitment) in favor
of the Bank on a standard ALTA loan policy form, procured at Borrower's sole expense,
insuring the first lien priority of the Bank's Mortgage in an amount equal to at least
14 282062
$2,700,000.00, and including no mechanics lien exception, and including lender's
endorsements numbers 100, 300, 710, 8.1 and 1000.
6.10 Reimbursement of Costs. The Borrower shall reimburse the Bank for all
costs and expenses incurred.
6.11 Principal Documents: Borrower. At Settlement, the Borrower shall have
executed and delivered to the Bank:
(a) this Agreement;
(b) the Note ($2,700,000.00);
(c) the Mortgage ($2,700,000.00);
(d) the Pledge Agreement;
(e) W-9 Taxpayer Identification Certificate; and
(f) all related financing statements and other documents executed in
conjunction with this Agreement.
6.12 Principal Documents: Guarantors. At Settlement, each of the Guarantors
shall have executed and delivered to the Bank:
(a) its Unconditional Guaranty agreement by which each Guarantor
guaranties payment of, and becomes surety for Borrower's Obligations under the Note;
(b) its W-9 Taxpayer Identification Certificate; and
(c) all related resolutions, and other documents executed in
conjunction with this Agreement which the Bank may
require.
6.13 Subordination Agreements. The Subordination Agreements contemplated
at Paragraph 4.1 hereof shall have been delivered by Penndel Land Co. and the Estate
of Ralph C. Otto, in recordable form.
6.15 Review of Organizational Documents - Borrower. Penndel Land Co. The
Bank shall have completed its review of all organizational documents of Borrower and
Guarantor Penndel Land Co. and found them to be satisfactory.
6.16 Environmental Report. The Bank shall have examined an environmental
transaction screen covering the Real Estate and found it to be satisfactory and no
adverse change shall have occurred with respect to the environmental condition of the
Real Estate, or any part of it, between the date of that report and the date of Settlement
15 282062
hereunder.
6.17 Performance. The Borrower shall have performed and complied with all
terms and conditions required by this Agreement to be performed or complied with by
the Borrower prior to or at the time of Settlement.
SECTION 7. AFFIRMATIVE COVENANTS.
Borrower covenants and agrees that from and after the effective date of this
Agreement and so long as the Note remains outstanding and unpaid, in whole or in part,
it will observe the following covenants unless the Bank shall otherwise consent in
writing:
7.1 Payment of Taxes, etc.
(a) Borrower shall pay before the date on which they would become
delinquent all taxes, assessments, water rates, sewer rents, governmental impositions,
and other charges, including, without limitation, license fees for the Real Estate, now or
hereafter levied or assessed or imposed against the Real Estate or any part thereof (the
"Taxes"), all ground rents, maintenance charges and similar charges now or hereafter
levied or assessed or imposed against the Real Estate or any part thereof (the "Other
Charges"), and all charges for utility services provided to the Real Estate as same
become due and payable. Borrower will deliver to Bank reasonably soon after payment
thereof, evidence satisfactory to Bank that the Taxes and Other Charges have been so
paid or are not then delinquent. Borrower shall not suffer and shall promptly cause to
be paid and discharged any lien or charge whatsoever which may be or become a lien
or charge against the Real Estate. Borrower shall furnish to Bank paid receipts for the
payment of the Taxes and Other Charges prior to the date the same shall become
delinquent.
(b) After prior written notice to Bank, Borrower, at its own expense,
may contest by appropriate legal proceeding, promptly initiated and conducted in good
faith and with due diligence, the amount or validity or application in whole or in part of
any of the Taxes, provided that (i) no Event of Default has occurred and is continuing
under the Note, this Agreement or any of the other Loan Documents, (ii) Borrower is
permitted to do so under the provisions of the Mortgage, (iii) such proceeding shall
suspend the collection of the Taxes from Borrower and from the Real Estate or
Borrower shall have paid all of the Taxes under protest, (iv) such proceeding shall be
permitted under and be conducted in accordance with the provisions of any other
instrument to which Borrower is subject and shall not constitute a default thereunder, (v)
neither the Real Estate nor any part thereof or interest therein will be in danger of being
sold, forfeited, terminated, cancelled or lost (vi) Borrower shall have furnished the
security as may be required in the proceeding, or as may be reasonably requested by
Bank to insure the payment of any contested Taxes, together with all interest and
penalties thereon.
16 282062
7.2 Maintenance of Real Estate.
maintained, at its cost, the Real Estate in
statutory and regulatory requirements.
Borrower shall maintain and cause to be
compliance with all local, state and federal
7.3 Financial Information. Borrower and Guarantors shall furnish to the Bank
the following:
(a) within fifteen (15) days of filing, but in no event later than April 30th
of each year, Borrower shall provide Bank with a copy of its federal tax return, as filed,
together with all exhibits and schedules thereto;
(b) within fifteen (15) days of filing, but in no event later than April 30th
of each year, Guarantor Penndel Land Co. shall provide Bank with a copy of its federal
tax return, as filed, together with all exhibits and schedules thereto;
(c) within fifteen (15) days of filing, but in no event later than May 30th
of each year, Guarantor Ramesh S. Rao shall provide Bank with a copy of his federal
tax return, as filed, together with all exhibits and schedules thereto;
(d) concurrently with the delivery of a copy of his personal tax return
each year, Guarantor Ramesh S. Rao shall provide the Bank with an updated personal
financial statement, separately listing (i) assets and debts held by Ramesh S. Rao
personally, and (ii) assets and debts of Ramesh S. Rao held jointly with a spouse or any
other person, all in such detail as shall be satisfactory to Bank; and
(e) from time to time, such additional financial and other information as
the Bank may reasonably request.
7.4 Insurance Coverages. The Borrower shall continuously comply, in all
respects, with the provisions set forth in the Mortgage with regard to insurance on the
Real Estate and other insurance coverages required by the Bank.
7.5 Entity Existence, Properties. Borrower and Guarantor Penndel Land Co.
will each maintain (a) its entity existence, its qualification to do business and its good
standing in each jurisdiction in which qualification is necessary for the proper conduct of
its business, (b) all material licenses, permits and other authorizations necessary for the
ownership and operation of its properties and businesses, and (c) its material properties
in good repair, working order and condition and will make all necessary or appropriate
repairs, renewals, replacements and substitutions, so that the efficiency of all such
property shall at all times be reasonably preserved and maintained.
7.6 Books and Records. The Borrower will maintain, accurate and complete
records and books of account with respect to all its operations in accordance with the
accounting principles on which it prepares its annual financial statements, and will
permit, officers or representatives of the Bank to examine and make excerpts from such
books and records and to visit and inspect its properties, both real and personal, at all
17 282062
reasonable times upon at least twenty-four (24) hours prior notice to Borrower.
7.7 Access. The Borrower shall allow the Bank or its representatives or
designees access to the Real Estate at all reasonable times during regular business
hours for the purposes of inspection or appraisal.
7.8 Environmental Matters.
(a) As used in this Agreement, the following terms shall have the
following meanings: (i) "Environmental Laws" means any and all applicable federal, state
and local environmental laws, rules and regulations whether now existing or hereafter
enacted together with all amendments, modifications and supplements thereof, and (ii)
"Hazardous Materials" means any contaminants, hazardous substances, regulated
substances or hazardous wastes which could reasonably be expected to form the basis of
material liability pursuant to any Environmental Law.
(b) The Borrower represents and warrants that, to the best of its
knowledge, no property owned or leased by the Borrower or any subsidiary of the
Borrower is in violation of any Environmental Laws except to the extent such violation
could not reasonably be expected to have a material adverse effect of Borrower's
financial condition, no Hazardous Materials are present on said property and Borrower
has not been identified in any litigation, administrative proceedings or investigation as a
responsible party for any liability under any Environmental Laws. Lender acknowledges
receipt of a copy of that certain Phase 1 environmental site assessment shall be
separately provided by Borrower to Lender at or before Settlement.
(c) The Borrower shall not use, generate, treat, store, dispose of or
otherwise introduce, or permit any subsidiary to use, generate, treat, store, dispose of or
otherwise introduce, any Hazardous Materials into or on any property owned or leased
by the Borrower and will not, and will not permit any subsidiary to, cause, suffer, allow
or permit anyone else to do so, except in an environmentally safe manner through
methods which have been approved by and meet all of the standards of the federal
Environmental Protection Agency and any other federal, state or local agency with
authority to enforce Environmental Laws. The Borrower hereby agrees to indemnify,
reimburse, defend and hold harmless Lender and its directors, officers, agents and
employees ("Indemnified Parties") for, from and against all demands, liabilities,
damages, costs, claims, suits, actions, legal or administrative proceedings, interest,
losses, expenses and reasonable attorney's fees (including any such fees and
expenses incurred in enforcing this indemnity) asserted against, imposed on or incurred
by any of the Indemnified Parties, directly or indirectly pursuant to or in connection with
the application of any Environmental Law to acts or omissions occurring at any time on
or in connection with any property owned or leased by the Borrower or any subsidiary of
the Borrower or any business conducted thereon.
7.9 Marketing of Real Estate. Borrower shall provide status reports to Bank,
as requested by Bank, but no less frequently than quarterly, with respect to its efforts to
18 282062
market the Real Estate or portions thereof. In that regard Borrower shall provide Bank
with any written proposals, offers, term sheets or other evidences of interest by
prospective third-party purchasers in acquiring some or all of the Real Estate. Borrower
shall provide Bank with copies of all drawings, plots, plans, agreements or other
documentation in preparation for or in conjunction with all land development or
subdivision plans proposed with respect to the Real Estate. Borrower shall advise Bank
of the status of any and all municipal approvals sought by Borrower, or any third-party
purchaser with whom Borrower has reached agreement with regard to sale of the Real
Estate or any Lot within the Real Estate.
SECTION 8. NEGATIVE COVENANTS.
The Borrower covenants and agrees that from and after the effective date of this
Agreement and so long as any amount remains due under the Note, or the Obligations
remains outstanding and unpaid, in whole or in part, it will observe the following
covenants unless the Bank shall otherwise consent in writing:
8.1 Liens. The Borrower will not create, assume or suffer to exist any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind upon the
Real Estate or any personal property encumbered as part of the Real Estate, whether
now owned or hereafter acquired, except (a) the liens and security interests created in
favor of the Bank and the subordinated mortgages referenced herein, (b) liens for taxes
not yet payable or being contested in good faith by appropriate proceedings and for
which adequate reserves have been provided on the books of the Borrower, arising with
respect to obligations which are not overdue for a period longer than 30 days or which
are being contested in good faith by appropriate proceedings and for which adequate
reserves have been provided on the books of the Borrower, (c) deposits or pledges to
secure the performance of bids, tenders, contracts, leases, public and statutory
obligations, surety or appeal bonds or other deposits or pledges for purposes of a like
general nature or given in the ordinary course of business by the Borrower, and (d)
other encumbrances consisting of zoning restrictions, easements, restrictions on the
use of the Real Estate or minor irregularities in the title thereto, which do not arise in
connection with the borrowing of, or any obligation for the payment of, money and
which, in the aggregate, do not materially detract from the value of the Real Estate.
8.2 Due on Sale Provisions. Borrower agrees that it shall not sell, transfer or
convey either by agreement of sale, installment sale or other transfer, exchange or
attempt to transfer or exchange of title to the Real Estate or any portion thereof without
the prior written consent of the Bank. The Borrower further agrees that the Bank may
withhold its written consent to any such transfer, or may condition its consent to any
such transfer, in the Bank's sole discretion, and Borrower further acknowledges that
Bank expects that all sales shall be at a price equivalent to $115,000.00 per acre or
greater. Any transfer or attempt to transfer in violation of this provision shall constitute a
default hereunder and under the Loan Documents.
8.3 Disposition of Assets. The Borrower will not liquidate or convey, sell,
19 282062
pledge, or otherwise transfer or dispose of all or any substantial part of the Real Estate
except in accordance with Paragraph 8.2 above. Borrower shall not sell the Real Estate
under any installment sale agreement or enter into any agreement transferring
management or control of the Real Estate. Borrower shall not otherwise agree to sell or
transfer the Real Estate except under terms providing for payment in full of all
Obligations due to the Bank at or prior to the time of settlement with a third party
purchaser.
8.4 Contingent Liabilities. The Borrower will not become or remain liable,
directly or indirectly, in connection with the obligations, stock or dividends of any person,
firm, corporation or other entity, whether by guarantee, endorsement, agreement to
supply or advance funds, agreement to maintain working capital or net worth,
agreement to purchase or repurchase goods or services whether or not such goods or
services are actually acquired, or otherwise, except that the Borrower may endorse
negotiable instruments for collection in the ordinary course of its business and take
other actions in the ordinary course of business, and except with respect to those
liabilities which have been previously disclosed in writing and consented to the Bank,
and except for Borrower's own liabilities and those of Borrower's affiliates.
SECTION 9. EVENTS OF DEFAULT; REMEDIES.
9.1 Events of Default. The following shall constitute an Event of Default or
Events of Default:
(a) Non-Payment. Failure by the Borrower to make any payment to
Bank by the date payment is due under any of the Loan Documents, whether by
acceleration, at maturity or otherwise.
(b) Judgment/Garnishment/I.R.S. Levy. It shall be an Event of Default
if any creditor of the Borrower or any governmental unit (including without limitation, any
department, commission or agency of federal, state and local government, which is not
a taxing body), or any other party claiming to be a creditor or any other person causes
judgment to be entered against the Borrower, or causes to be entered or attempts to
issue any such attachment, garnishment, levy, writ of execution or any other
enforcement action against the Borrower, which is not removed by the Borrower within
ten (10) days of its filing.
(c) Failure to Perform Other Covenants. Failure by the Borrower to
observe or perform any other covenants, conditions or provisions contained in this
Agreement or in the other Loan Documents.
(d) Falsity of Representations and Warranties. If any representation or
warranty made by Borrower herein or under the Note or under any of the other Loan
Documents, or in any statement made by Borrower in any tax return, certificate, report,
exhibit or document furnished by Borrower to Bank pursuant to or in connection with this
Agreement, the Note or any of the other Loan Documents shall prove to have been
20 282062
false or misleading in any material respect as of the time when made (including by
omission of material information necessary to make such representation, warranty or
statement not misleading);
(e) Voluntary Bankruptcy, Etc. Filing by the Borrower and/or by
Guarantors, or any of them, of a voluntary petition in bankruptcy or a voluntary petition
or any answer seeking reorganization, arrangement, readjustment of its debts or for any
other relief under the United States Bankruptcy Code, as amended, or under any other
insolvency act or law, state or federal, now or hereafter existing, or any formal written
consent to, approval of, or acquiescence in, any such petition or proceeding by the
Borrower or Guarantors, or any of them; the application by the Borrower or Guarantors,
or any of them, for, or the appointment by consent or acquiescence of, a custodian,
receiver or trustee of, the Borrower or Guarantors, or any of them, or for all or a
substantial part of its property; the making by the Borrower or Guarantors, or any of
them, of an assignment for the benefit of creditors; the inability of the Borrower or
Guarantors, or any of them, or the admission by the Borrower or Guarantors, or any of
them, in writing of its inability, to pay its debts as they mature;
(f) Involuntary Bankruptcy, Etc. Filing of any involuntary petition
against the Borrower and/or Guarantors, or any of them, in bankruptcy or seeking
reorganization, arrangement or readjustment of its debts or for any other relief under the
United States Bankruptcy Code, as amended, or under any other insolvency act or law,
state or federal, now or hereafter existing; or the involuntary appointment of a custodian,
receiver or trustee of the Borrower and/or Guarantors, or any of them, or for all or a
substantial part of the property of the Borrower; and the continuance of any of such
events for a period of 60 days undismissed, unbonded or undischarged;
(g) Liens. The recordation of any additional liens on the Real Estate
without the written consent of Bank, not removed or otherwise disposed of in
accordance with other provisions of the Loan Documents.
(h) Default in Payment of Real Estate Taxes. Any default by the
Borrower in payment, when due, of any real estate taxes due on the Real Estate, or any
part or portion of it, unless contested as allowed by other provisions in the Loan
Documents.
(i) Default by Guarantors. Any default by either Guarantor under its
Guaranty Agreement shall constitute a default hereunder.
(j) Default Under Loan Documents. Any default by Borrower or
Guarantors under any of the Loan Documents.
9.2 Cross-Default/Cross-Collateralization. The Borrower acknowledges that
any default under any of its other obligations to the Bank shall constitute an Event of
Default under all of the Obligations evidenced by this Agreement. Any defaults under
any of the Loan Documents shall constitute an Event of Default under all of the Loan
21 282062
Documents. The Obligations of the Borrower as evidenced by this Agreement are fully
cross-collateralized, with all other indebtedness to Bank, primary, secondary or
contingent, now existing or hereafter incurred.
9.3 Remedies upon Default. If an Event of Default shall occur and be
continuing, the Bank, by written notice to the Borrower, may exercise any or all of the
following rights and remedies:
(a) Acceleration. The Bank may declare the Loan and all Obligations
of the Borrower to the Bank to be immediately due and payable in full, whereupon the
principal amount of all outstanding Obligations of the Borrower to the Bank, together
with accrued interest, costs and fees due thereon, shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything contained herein or in the documents evidencing
the same to the contrary notwithstanding.
(b) No Obligation to Release. The Bank shall not be obligated to
release the lien of its Mortgage unless and until the Obligations, together with all costs,
expenses and attorney's fees incurred by the Bank, have been paid in full. The Bank's
agreement to accept 80% of gross sales proceeds in exchange for release of Mortgage
shall cease and terminate.
(c) Enforcement of Mortgage. The Bank may enforce the Mortgage
and exercise the remedies set forth therein, including but not limited to appointment of a
receiver to take possession of or to proceed with foreclosure of the Real Estate, under
any applicable provision of law in which case the Real Estate or any interest therein
may be sold at judicial sale. The Bank may also institute proceedings for the partial
foreclosure of the Mortgage for the portion of the liabilities then due and payable subject
to the continuing lien and security interest of the Mortgage for the balance of the debt
not then due, unimpaired and without loss of priority. The Bank may sell for cash or
credit the Real Estate or any part thereof and all estate, claim, demand, right, title and
interest of Borrower therein and rights of redemption thereof, at one or more sales, as
an entity or in parcels at such time and place, upon such terms and after such notice
thereof as may be required or permitted by law. In the event of a sale by foreclosure or
otherwise of less than all of the Real Estate the Mortgage shall continue as a lien and
security interest on the remaining portion of the Real Estate unimpaired and without loss
of priority.
(d) Enforcement of Pledge Agreement. The Bank shall be free to
enforce all its remedies in collateral pledged under the Pledge Agreement, and shall be
free to apply the entire balance in the Reserve Account as well as any other deposit
account maintained by Borrower (or either of the Guarantors) with the Bank on account
of the Obligations.
(e) Enforcement of Guaranty Agreements. The Bank may demand
immediate payment in full of all the Obligations and all costs and attorneys fees
22 282062
associated therewith from each of the Guarantors, and may confess judgment therefor
and may exercise all other rights and remedies provided for in the Guaranty
Agreements.
(f) Appointment of Receiver. The Bank may apply for the
appointment of a receiver, trustee, or conservator of the Real Estate, without notice and
without regard for the adequacy of the security for the debt and without regard for the
solvency of Borrower, and Borrower consents to the appointment of a Receiver and
acknowledges that this Agreement constitutes full and complete consent to not only the
appointment of a Receiver, but to all conduct or marketing efforts of such receiver,
within the reasonable business judgment of Receiver.
(g) Specific Performance. The Bank may institute an action, suit or
proceeding in equity for the specific performance of any covenant, condition or
agreement contained herein, in the Note, the Mortgage or other Loan Documents.
(h) Possession. The Bank may enter into or upon the Real Estate,
either personally or by its agents, nominees or attorneys and dispossess Borrower and
its agents and servants therefrom, without liability for trespass, damage or otherwise,
and exclude Borrower and its agents or servants wholly therefrom, and take possession
of all books, records and accounts relating thereto and Borrower agrees to surrender
possession of the Real Estate and of such books, records and accounts to Bank upon
demand. Thereafter, the Bank may (i) proceed either in the name of the Bank or in the
name of the Borrower as attorney-in-fact of the Borrower (which authority is coupled
with an interest and is irrevocable by the Borrower) as the Bank shall elect, to complete
any obligations or commitments of Borrower with respect to any sale to a third-party, or
with respect to satisfaction of any conditions, covenants or commitments made by
Borrower in order to commit, foster or enable a sale of the Real Estate or any Lot within
the Real Estate. If the Bank elects to complete any commitments of Borrower, it may do
so according to the terms of any contract previously entered by Borrower or according
to such changes, alterations or modifications as Bank shall deem expedient or
necessary, and the Bank may enforce or cancel any contracts entered into as aforesaid
or make other contracts which the Bank, in its sole discretion, may deem advisable.
The Borrower shall be liable to pay the Bank upon demand any amounts reasonably
expended by the Bank or its representatives for such performance, together with any
reasonable costs, charges or expenses incident thereto or otherwise incurred or
expended by the Bank or its representatives on behalf of the Borrower, any amounts so
expended shall bear interest at the rate set forth in the Note and shall be considered
part of the indebtedness evidenced by the Note and secured by all collateral documents
securing Borrower's Obligations; (ii) use, operate, manage, control, ensure, maintain,
repair, restore and otherwise deal with all and every part of the Real Estate and conduct
business thereat; (iii) make alterations, additions, replacements and improvements to or
on the Real Estate; (iv) exercise all rights and powers of Borrower with respect to the
Real Estate, whether in the name of Borrower or otherwise, including, without limitation,
the right to make, cancel, enforce or modify leases, obtain and evict tenants, and
demand, collect and receive all rents of the Real Estate and every part thereof; (v)
23 282062
require Borrower to pay monthly in advance to Bank, or any Receiver appointed to
collect the rents, fair and reasonable rental value for the use and occupancy of such
part of the Real Estate as may be occupied by Borrower; require Borrower to vacate
and surrender possession of the property to Bank or to such Receiver and in default
thereof Borrower may be evicted by summary proceedings or otherwise; and (vii) to
apply the receipts from the Real Estate to payment of the debt in such order and priority
as Bank shall deem appropriate in its sole discretion after deducting therefrom all
reasonable expenses, including attorneys' fees, incurred in connection with the
aforesaid operations and all amounts necessary to pay taxes, insurance, and other
expenses incurred in connection with the Real Estate as well as just and reasonable
compensation for the services of Bank, its outside counsel, agents and employees.
(i) Insurance Policies. Borrower shall surrender insurance policies
maintained pursuant hereto to Bank and shall be entitled to collect the unearned
insurance premiums and apply such sums as a credit on the Obligations in such order
and priority as Bank in its discretion shall deem proper. In connection therewith,
Borrower hereby appoints Bank as its agent and attorney in fact, which power is
coupled with an interest and is therefore irrevocable, for Borrower to collect and apply
such insurance proceeds.
Q) Examination of Books and Records. The Bank, its agents,
accountants and attorneys shall have the right without prior notice to examine the
books, records, management and other papers of Borrower which reflect upon its
financial condition at any office regularly maintained by Borrower where the books and
records are located. The Bank and its agents shall have the right to make copies and
extracts from the foregoing records and other papers.
(k) Risk of Loss. After occurrence of an Event of Default it is agreed
that the risk of loss or damage to the Real Estate shall remain on Borrower and Bank
shall have no liability whatsoever for decline in value of the Real Estate, for failure to
maintain insurance, or for failure to determine whether insurance in force is adequate as
the amount of risks insured. Possession by the Bank shall not be deemed an election
to pursue judicial relief.
(1) Violation of Laws. If the Real Estate is not in compliance with
applicable laws, the Bank may impose additional requirements upon Borrower in
connection therewith, including, without limitation, monetary reserves or financial
equivalents.
(m) Right to Release any Portion of the Real Estate. The Bank
may release any portion of the Real Estate for such consideration as Bank may require
without, as to the remainder of the Real Estate, in any way impairing or affecting the lien
or priority of the Mortgage or improving the position of any subordinate lien holder with
respect thereto, except to the extent that the debt hereunder shall have been reduced
by actual monetary consideration, if any, received by Bank for such release, and Bank
may accept by assignment, pledge or otherwise any other property in place thereof as
24 282062
Bank may require without being accountable for so doing to any other lien holder.
(n) Other Remedies. The Bank shall be entitled to exercise all its
rights and remedies otherwise afforded to it, in law or equity.
(o) Attorneys Fees and Costs. The Borrower and the Guarantors shall
be obligated and liable to the Bank for all reasonable attorney's fees incurred by the
Bank to enforce its rights or remedies or to protect its interests, as well as for all costs
incurred by the Bank, including but not limited to appraisal costs, sales commissions,
environmental reports, environmental remediation, search costs, credit report costs or
other costs. The Bank's entitlement to such costs and fees and the Borrower's and
Guarantors' liability therefor shall be unconditional and shall not depend on the Bank
taking or exercising any particular right or remedy, or the filing of suit, or taking any
other particular action.
9.4 No Marshalling, Etc., Required. If an Event of Default shall have occurred
and be continuing, the Bank shall not be required to marshal any present or future
security for, or guarantees of, the Note held by it or to resort to any such security or
guarantees in any particular order and the Borrower waives, to the fullest extent that it
lawfully can, (i) any right it may have to require the Bank to pursue any particular
remedy before proceeding against it and (ii) any right to the benefit of, or to direct the
application of the proceeds of, any collateral until all sums due under the Note have
been paid in full.
9.5 CONFESSION OF JUDGMENT. THE BANK MAY EXERCISE ITS
RIGHTS TO CONFESS JUDGMENT AGAINST THE BORROWER AND/OR EITHER
OR BOTH OF THE GUARANTORS, UNDER THE TERMS AND PROVISIONS SET
FORTH IN THE CONFESSION OF JUDGMENT PROVISIONS OF THE NOTE AND IN
THE GUARANTY AGREEMENTS.
9.6 Right of Setoff. Upon the occurrence of an Event of Default, the Bank
shall have the right, in addition to all other rights and remedies available to it, to set off
against the unpaid balance of the Note, any debt owing to the Borrower by the Bank
including, without limitation any funds in any deposit account maintained by the
Borrower with the Bank. Nothing in this Agreement shall be deemed any waiver or
prohibition of the Bank's right of banker's lien or setoff.
9.7 No Waiver; Cumulative Remedies. No failure or delay on the part of the
Bank in exercising any right, power or privilege hereunder or under the Note or the Loan
Documents shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege hereunder or thereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege at any time and
from time to time. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
25 282062
SECTION 10. MISCELLANEOUS
10.1 Notices. Except as specifically set forth elsewhere in the Loan
Documents, any demand or notice hereunder or under any of the Loan Documents or
under any applicable law pertaining hereto shall be in writing and duly given if delivered
to Borrower as set forth below in this section or to the Bank as set forth below in this
section. Such notice or demand shall be deemed sufficiently given for all purposes
when delivered (i) by personal delivery and shall be deemed effective when delivered,
or (ii) by mail or courier and shall be deemed effective three (3) business days after
deposit in an official depository maintained by the United States Post Office for the
collection of mail, postage prepaid, certified mail return receipt requested, or (iii) one (1)
business day after delivery to a nationally recognized overnight courier service (e.g.,
Federal Express) marked for next-day delivery. Notice by e-mail is not valid notice
under any of the Loan Documents unless and until confirmed in a manner as set forth
above. The addresses are as follows except that the respective parties may hereafter
from time to time designate other addresses by notice as set forth herein:
The Borrower: RAMA Development, LLC
ATTN: Ramesh S. Rao
4209 York Road
New Oxford, PA 17350
The Bank: Wachovia Bank, National Association
600 Penn Street, P.O. Box 1102
Reading, PA 19603
ATTN: Gary Moyer
10.2 Indemnification. Borrower hereby agrees to indemnify, defend and
hold harmless Bank, its successors and assigns, from and against and in respect of,
any and all damages, liabilities, fees, costs, expenses (and including, without limitation,
reasonable attorney's fees and expenses) of every kind, nature or description incurred
or suffered by Bank by reason of or resulting from or arising out of this Agreement
including, but not limited to, any and all investigations, litigation, actions, suits,
proceedings, demands, assessments, costs, fees, expenses or judgments under any
state or federal laws, including securities laws, except those resulting from the willful
misconduct of the Bank or its attorney's, agents and employees.
10.3 Reimbursement of Bank. The Borrower hereby agrees to reimburse the
Bank, by payment to the Bank at Settlement hereunder for Bank's out-of-pocket
expenses including search costs, filing fees, appraisal costs, environmental reports or
studies and counsel fees incurred with the negotiation and preparation of this
Agreement and the Loan Documents, and any other costs incurred by the Bank in that
regard. The Borrower further agrees to reimburse the Bank within 15 days after notice,
for any out-of-pocket expenses or reasonable attorneys fees incurred by the Bank in the
future in connection with review, enforcement or amendment of this Agreement, the
26 282062
Note or any of the Loan Documents.
10.4 Conflict Among Loan Documents. If there is any conflict between the
provisions of this Agreement and those of any of the other Loan Documents, the
provisions of this Agreement shall prevail.
10.5 Survival of Representations and Warranties. All representations,
warranties, covenants and agreements made in this Agreement and in any certificates
delivered pursuant hereto shall survive the execution and delivery of this Agreement,
the making of the Loan hereunder and the issuance of the Note, and shall survive
payment of the Note and all other instruments evidencing obligations of the Borrower to
the Bank.
10.6 Construction. This Agreement, the Note, the Loan Documents and the
rights and obligations of the parties hereunder and thereunder shall be governed by,
and construed and interpreted in accordance with, the laws of the Commonwealth of
Pennsylvania.
10.7 Entire Agreement. This Agreement, together with the other Loan
Documents, represents the entire agreement and understanding of the parties, and may
not be modified subsequently by oral statements of or courses of dealing between the
parties.
10.8 Severability. Any provision contained in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in any other
jurisdiction.
10.9 Successors. This Agreement shall be binding upon and inure to the
benefit of the Borrower and the Bank and their respective heirs, administrators,
successors and assigns, except that the Borrower may not assign or transfer any of its
rights hereunder without the prior written consent of the Bank.
10.10 Public Notification. The Borrower hereby consents to the public
advertisement or erection of a sign on the Project premises by the Bank of its role in the
financing of the Real Estate.
10.11 Waiver of Exemplary Damages. The parties agree that they shall not
have a remedy of punitive or exemplary damages against other parties in any dispute
and hereby waive any right or claim to punitive or exemplary damages they have not or
which may arise in the future in connection with any dispute whether the dispute is
resolved by arbitration or judicially.
10.12 WAIVER OF JURY TRIAL. THE BORROWER AGREES THAT ANY
27 282062
SUIT, ACTION OR PROCEEDING, WHETHER BY CLAIM OR COUNTERCLAIM,
BROUGHT OR INSTITUTED BY ANY PARTY HERETO OR ANY SUCCESSOR OR
ASSIGN WITH RESPECT TO THIS AGREEMENT, OR ANY OTHER DOCUMENT
WHICH RELATES, DIRECTLY OR INDIRECTLY, TO THE LOAN OR ANY EVENT,
TRANSACTION OR OCCURRENCE ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THE LOAN, OR THE DEALINGS OF THE PARTIES WITH
RESPECT THERETO SHALL BE TRIED BY A COURT PRESIDING NON-JURY AND
NOT BY A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO
TRIAL BY JURY. THE BORROWER ACKNOWLEDGES AND AGREES THAT: THIS
PARAGRAPH IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT;
THE TRANSACTION IS OF A COMPLICATED NATURE AND NOT EASILY
SUSCEPTIBLE TO TRIAL BY JURY; AND WOULD NOT EXTEND THE LOAN TO
BORROWER IF THIS ACTION WERE NOT A PART OF THIS AGREEMENT.
10.13 Governing Law/Jurisdiction. This Agreement has been delivered to and
accepted by the Bank and will be deemed to be made in the Commonwealth of
Pennsylvania. This Agreement will be interpreted in accordance with the laws of the
Commonwealth of Pennsylvania excluding its conflict of laws rules. BORROWER
HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE BERKS
COUNTY COURT OF COMMON PLEAS, AND THE U.S. DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA AND CONSENTS THAT THE BANK MAY
EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT BORROWER'S
ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND;
PROVIDED THAT NOTHING CONTAINED IN THIS AGREEMENT WILL PREVENT
THE BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR
JUDGMENT OR EXERCISING ANY RIGHTS AGAINST BORROWER INDIVIDUALLY,
AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF BORROWER WITHIN
ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC
JURISDICTION. Borrower acknowledges and agrees that the venue provided above is
the most convenient forum for both the Bank and Borrower. Borrower waives any
objection to venue and any objection based on a more convenient forum in any action
instituted under this Agreement.
Acknowledgment. Borrower acknowledges that it has read and understands all
of the provisions of this Loan Agreement including the Confession of Judgment
provisions, the Governing Law/Jurisdiction provisions and the Waiver of Jury Trial
provisions, and has been advised by counsel as necessary or appropriate.
28 282062
IN WITNESS WHEREOF, the parties, intending to be legally bound, have set
their hands and seals the day and year first above written.
Borrower:
RAMA DEVELOPMENT, LLC
eA (111
/ C-0??
By:
?s?/??w-
Ramesh S. Rao, Member
Bank:
WACHOVIA BANK, NATIONAL
A OCIATION
By: at C4- LLJ
Har errick, ice President
29 282062
JOINDER OF PENNDEL LAND CO. AND RAMESH S. RAO AS GUARANTORS OF
THE INDEBTEDNESS DUE FROM RAMA DEVELOPMENT, LLC TO BANK
Intending to be legally bound hereby, the undersigned acknowledge and agree
as follows:
PENNDEL LAND CO. and RAMESH S. RAO, guarantors of payment to the Bank
of a Note in the original principal amount of $2,700,000.00 executed and delivered by
Rama Development, LLC to Wachovia Bank, National Association contemporaneously
herewith, hereby acknowledge receipt of a true and correct copy of the Loan Agreement
and the Promissory Note ($2,700,000.00) and agree to the terms and conditions thereof,
and agree to be bound to the Bank in strict accordance with the terms thereof and with
the terms and conditions of their respective Unconditional Guaranty agreements, dated
contemporaneously herewith.
EXECUTED this day ofd, 2007.
WITNESS:
PENNDEL LAND CO.
By.?
?Liu u-?- Title: PrP ,"? y
Ramesh S. Rao
30 282062
STATE OF MASSACHUSETTS
COUNTY OF WORCESTER
SS
On this day of 1}6? -(u4!WZ. , 2007, before me, a notary public,
the undersigned officer, personally appeared RAMESH S. RAO, who acknowledged
himself to be a member of RAMA Development, LLC, and that he as such member,
being authorized to do so, executed the foregoing Loan Agreement for the purposes
therein contained, by signing the name of the limited liability company by himself as
such member.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(NOTARIAL SEAL)
otary Public's nCCUMNK L. TONBLU
Ng
wwwoam a awle
wwbaon ER*p APrV 2,2610
My Commission Expires: ??-12- 1 r1l C
31
282062
STATE OF MASSACHUSETTS
COUNTY OF WORCESTER
: SS
On this, the day of_???? , 2007, before me, the undersigned
officer, a notary public in and for said county and state, personally appeared RAMESH
S. RAO, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the foregoing Loan Agreement and acknowledged that he executed the
same for the purposes contained therein.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
otary Pu I i c
it DIANE L TONELL.I
?(I Notary Pubis
Cornmorm"alM of Massachusetts
My Commission Expires April 2, 2010
32 282062
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF SS
On this 17*- day of O cA-f e, , 2017, before, me, a notary
public, the undersigned officer, personally appeared Sfe y er L. +r Q +- , who
acknowledged himself to be a duly authorized officer of Penndel Land Co., and that he
as such officer, being authorized to do so, executed the foregoing Loan Agreement for
the purposes therein contained, by signing the name of the corporation by himself as
such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(NOTARIAL SEAL)
Notary Public
My Commission Expires:
,
L,OPV1iYON'V" F-ALTH CF PENNSYLVANi,"
NOTARIAL SEAL
PATRICiA L. SC:HELL, Notary Public
York Git'?, York County
My Commission Expires May 7, 2009
33 282062
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF
On this (1_(Al day of C LL A 2007, before me, a notary
public, the undersigned officer, personally appeared Harry Derrick, who acknowledged
himself to be a duly authorized officer of Wachovia Bank, National Association, and that
he as such officer, being authorized to do so, executed the foregoing Loan Agreement
for the purposes therein contained, by signing the name of the bank by himself as such
officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
C ?e ""-w
(NOTARIAL SEAL)
Notary Public
My Commission Expires:
COMMONWEALTH OF PENNSYLVANii.
NOTARV,L SEAL
PATRICIA L. SCHELL, Notary Public
York City, York County
My Commission Expires May 7, 2009
34 282062
fy
PREPARED BY: Mark G. Yoder, Esquire
Bingaman Hess
Treeview Corporate Center
2 Meridian Boulevard, Suite 100
Wyomissing, PA 19610
610-374-8377
RETURN TO: Mark G. Yoder, Esquire
Treeview Corporate Center
2 Meridian Boulevard, Suite 100
Wyomissing, PA 19610
Premises: 48 +/- acres of land located north
of Lisburn Road in South Middleton
Township, Cumberland County, PA
PIN: 40-09-0533-014 (40-09-0533-014./02)
Rev. 10/16/07
C.MONwEALTH of PENNSYLVANIA
ty of CUMBERLAND s$
i Robert P ZI`140r, Recorder, do hereby
Certify that the foregoing Is a true and
y, , esJe Ora i ?_? U
_ ?PItrn_ my asst rw: '_3 1
My i?ommison ? e
January2010
OPEN-END PURCHASE MONEY MORTGAGE
AND ASSIGNMENT OF RENTS
This OPEN-END PURCHASE MONEY MORTGAGE AND ASSIGNMENT OF
RENTS (hereafter referred to as "Mortgage") made this JAI'- day of
2007, by and between WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, whose address is 600 Penn Street, P.O. Box 1102, Reading,
Pennsylvania 19603 ("Bank"), and RAMA DEVELOPMENT, LLC, whose address is
4209 York Road, New Oxford, PA 17350 ("Mortgagor"). Bank is the mortgagee
hereunder for indexing purposes by the clerk of court.
WITNESSETH:
To secure payment and performance of obligations under a Promissory Note (the
"Note") dated contemporaneously herewith, in the amount of $2,700,000.00, made by
Mortgagor payable to Bank, any present or future Letters of Credit issued by Bank for
the account of Mortgagor, other loan documents as defined in the Loan Agreement
between Bank and Borrower dated contemporaneously herewith (the "Loan Agreement"
), or in the Note (collectively, the "Loan Documents") and swap agreements (as defined
in 11 U.S.C. § 101, as in effect from time to time), all other indebtedness of Mortgagor
to Bank whenever borrowed or incurred, whether or not reasonably contemplated by the
parties hereto as of the date hereof, and any renewals, extensions, novations, or
modifications of the foregoing (collectively the "Obligations"), and in consideration of
these premises and for other consideration, Mortgagor does mortgage, grant and
convey unto Bank (for itself and its affiliates), its successors and assigns all of
281975
12008 12:45:00 PM CUMBERLAND COUNTY i,,.,
Mortgagor's right, title and interest now owned or hereafter acquired in and to each of
the following (collectively, the "Property"): (i) 48 +/- acres of land located north of
Lisburn Road in South Middleton Township, County of Cumberland, Commonwealth of
Pennsylvania more fully described on EXHIBIT "A" attached hereto and made part
hereof (the "Land"); (ii) all buildings and improvements now or hereafter erected on the
Land; (iii) all fixtures attached to the Land or any buildings or improvements situated
thereon; and (iv) all estates, rights, tenements, hereditaments, privileges, rents, issues,
profits easements, and appurtenances of any kind benefiting the Land; all means of
access to and from the Land, whether public or private; and all water and mineral rights.
In the event that Mortgagor is the owner of a leasehold estate with respect to any
portion of the Property and Mortgagor obtains a fee estate in such portions of the
Property, then, such fee estate shall automatically, and without further action of any kind
on the part of the Mortgagor, be and become subject to the security title and lien of this
Agreement.
TO HAVE AND TO HOLD the Property and all the estate, right, title and interest,
in law and in equity, of Mortgagor's in and to the Property unto Bank, its successors and
assigns, forever.
Mortgagor WARRANTS AND REPRESENTS that Mortgagor is lawfully seized of
the Property, in fee simple, absolute, that Mortgagor has the legal right to convey and
encumber the same, and that the Property is free and clear of all liens and
encumbrances other than those disclosed in writing and subordinated to Bank.
Mortgagor further warrants and will forever defend all and singular the Property and title
thereto to Bank and Bank's successors and assigns, against the lawful claims of all
persons whomsoever.
This Mortgage is a Purchase Money Mortgage, and the debt secured by this
Mortgage is borrowed by Mortgagor for purposes of acquiring the Real Estate
identified in this Mortgage as the "Property" as described on Exhibit "A" hereto.
PROVIDED ALWAYS that if (i) all the Obligations (including without limitation, all
termination payments and any other amounts due under or in connection with any swap
agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) secured
hereunder) are paid in full, (ii) each and every representation, warranty, agreement,
covenant and condition of this Mortgage, and the other Loan Documents, are complied
with and abided by, and (iii) any and all swap agreements (as defined in 11 U.S.C. §
101, as in effect from time to time) secured hereunder have matured or been
terminated, then this Mortgage and the estate hereby created shall cease and be null,
void, and canceled of record.
To protect the security of this Mortgage, Mortgagor further represents and agrees
with Bank as follows:
?RBI Q7F
2008
Payment of Obligations. That the Obligations shall be timely paid and
performed.
Future Advances. This Mortgage is given to secure not only existing
Obligations, but also future advances, including obligations under swap agreements (as
defined in 11 U.S.C. § 101, as in effect from time to time) to the same extent as if such
future advances and obligations under swap agreements (as defined in 11 U.S.C. §
101, as in effect from time to time) are made on the date of the execution of this
Mortgage. The principal amount (including any swap agreements (as defined in 11
U.S.C. § 101, as in effect from time to time) and future advances) that may be so
secured may decrease or increase from time to time, but the total amount so secured at
any one time shall not exceed $5,400,000.00, plus all interest, costs, reimbursements,
fees and expenses due under this Mortgage and secured hereby. Mortgagor shall not
execute any document that impairs or otherwise impacts the priority of any existing or
future Obligations secured by this Mortgage.
Nothing herein obligates Bank to provide credit in excess of the Obligations.
Leases, Subleases and Easements. Mortgagor shall maintain, enforce and
cause to be performed all of the terms and conditions under any lease, sublease or
easement which may constitute a portion of the Property. Mortgagor shall not, without
the consent of Bank (which consent shall not be unreasonably withheld or delayed),
enter into any new lease of all or any portion of the Property, agree to the cancellation
or surrender under any lease of all or any portion of the Property, agree to prepayment
of rents, issues or profits (other than rent paid at the signing of a lease or sublease),
modify any such lease so as to shorten the term, decrease the rent, accelerate the
payment of rent, or change the terms of any renewal option; and any such purported
new lease, cancellation, surrender, prepayment or modification made without the
consent of Bank shall be void as against Bank.
Required Insurance. Mortgagor shall maintain with respect to the Property: (i)
during construction of any improvements on the Property, "all-risk" builders risk
insurance which must include windstorm, hail damage, fire and vandalism (non-
reporting Completed Value with Special Cause of Loss form), in an amount not less
than the completed replacement value of the improvements under construction, naming
Bank as mortgagee and loss payee; (ii) upon completion of construction, upon
occupancy of any improvements, and at all other times, insurance against loss or
damage by fire and other casualties and hazards by insurance written on an "all risks"
basis, including malicious mischief coverage, in an amount not less than the
replacement cost thereof, including coverage for loss of rents or business interruption if
applicable, naming Bank as loss payee and mortgagee; (iii) if the Property is required to
be insured pursuant to the National Flood Reform Act of 1994, and the regulations
promulgated thereunder, flood insurance is required in the amount equal to the lesser of
the loan amount or maximum available under the National Flood Insurance Program,
but in no event should the amount of coverage be less than the value of the improved
structure, naming Bank as mortgagee and loss payee. If, after closing, the Property (or
281975
'2008 12:45:00 PM
any part thereof) is remapped and if the vertical improvements are determined to be
located in a special flood hazard area, Mortgagor must obtain and maintain a flood
insurance policy. If, within forty-five (45) days of receipt of notification from Bank that
the Property has been reclassified by FEMA as being located in a special flood hazard
area, Mortgagor has not provided sufficient evidence of flood insurance, Bank is
mandated under federal law to purchase flood insurance on behalf of Mortgagor, and
Bank will add the associated costs to the principal balance of the Note. If the land or
any portion thereof is located in a special flood hazard area, this Agreement may be
terminated by Bank at its sole option; (iv) as applicable, insurance which complies with
the workers' compensation and employers' liability laws of all states in which Mortgagor
shall be required to maintain such insurance; and (v) liability insurance providing
coverage in such amount as Bank may require but in no event less than $1,000,000.00
combined single limit, naming Bank as an additional insured; and (vi) such other
insurance as Bank may require from time to time.
All property insurance policies shall contain an endorsement or agreement by the
insurer in form satisfactory to Bank that any loss shall be payable in accordance with
the terms of such policy notwithstanding any act or negligence of Mortgagor and the
further agreement (within both the property and liability policies) of the insurer waiving
rights of subrogation against Bank, and rights of set-off, counterclaim or deductions
against Mortgagor.
All insurance policies shall be in form, provide coverages, be issued by
companies and be in amounts satisfactory to Bank. At least 30 days prior to the
expiration of each such policy, Mortgagor shall furnish Bank with evidence satisfactory
to Bank that such policy has been renewed or replaced or is no longer required
hereunder. All such policies shall provide that the policy will not be canceled or
materially amended without at least 30 days prior written notice to Bank. In the event
Mortgagor fails to provide, maintain, keep in force, and furnish to Bank the policies of
insurance required by this paragraph, Bank may procure such insurance or single-
interest insurance in such amounts, at such premium, for such risks and by such means
as Bank chooses, at Mortgagor's expense; provided however, Bank shall have no
responsibility to obtain any insurance, but if Bank does obtain insurance, Bank shall
have no responsibility to assure that the insurance obtained shall be adequate or
provide any protection to Mortgagor.
Insurance Proceeds. After occurrence of any loss to any of the Property,
Mortgagor shall give prompt written notice thereof to Bank.
In the event of such loss all insurance proceeds, including unearned premiums,
shall be payable to Bank, and Mortgagor hereby authorizes and directs any affected
insurance company to make payment of such proceeds directly to Bank and not to Bank
and Mortgagor jointly. Bank is hereby authorized by Mortgagor to make proof of loss if
not promptly made by Mortgagor, settle, adjust or compromise any claims for toss or
damage under any policy or policies of insurance and Mortgagor appoints Bank as its
attorney-in-fact to receive and endorse any insurance proceeds to Bank, which
1)0-1 n7c
2008 12:45:00 PM
appointment is coupled with an interest and shall be irrevocable as long as any
Obligations remain unsatisfied. Mortgagor shall pay the costs of collection, including
attorneys' fees, of insurance proceeds payable on account of such damage or
destruction. Mortgagor shall have no claim against the insurance proceeds, or be
entitled to any portion thereof, and all rights to the insurance proceeds are hereby
assigned to Bank as security for payment of the Obligations.
In the event of any damage to or destruction of the Property, Bank shall have the
option of applying or paying all or part of the insurance proceeds to (i) the Obligations in
such order as Bank may determine, (a) restoration, replacement or repair of the
Property in accordance with Bank's standard construction loan disbursement conditions
and requirements, or (iii) Mortgagor. Nothing herein shall be deemed to excuse
Mortgagor from restoring, repairing and maintaining the Property as required herein.
Impositions; Escrow Deposit. Mortgagor will pay all taxes, levies,
assessments and other fees and charges imposed upon or which may become a lien
upon the Property under any law or ordinance (all of the foregoing collectively
"Impositions") before they become delinquent and in any event in the same calendar
year in which they first become due. Upon request of Bank, Mortgagor shall add to
each periodic payment required under the Note the amount estimated by Bank to be
sufficient to enable Bank to pay, as they come due, all Impositions and insurance
premiums which Mortgagor is required to pay hereunder. Payments requested under
this provision shall be supplemented or adjusted as required by Bank from time to time.
Such funds may be commingled with the general funds of Bank and shall not earn
interest. Upon the occurrence of a Default, Bank may apply such funds to pay any of
the Obligations.
Use of Property. Mortgagor shall use and operate, and require its lessees or
licensees to use and operate, the Property in compliance with all applicable laws
(including, for example, the Americans with Disabilities Act and the Fair Housing Act)
and ordinances, covenants, and restrictions, and with all applicable requirements of any
lease or sublease now or hereafter affecting the Property. Mortgagor shall not permit
any unlawful use of the Property or any use that may give rise to a claim of forfeiture of
any of the Property. Mortgagor shall not allow changes in the stated use of Property
from that disclosed to Bank at the time of execution hereof. Mortgagor shall not initiate
or acquiesce to a zoning change of the Property without prior notice to, and written
consent of, Bank.
Maintenance, Repairs and Alterations. Mortgagor shall keep and maintain the
Property in good condition and repair and fully protected from the elements to the
satisfaction of Bank. Mortgagor will not remove, demolish or structurally alter any of the
buildings or other improvements on the Property (except such alterations as may be
required by laws, ordinances or regulations) without the prior written consent of Bank.
Mortgagor shall promptly notify Bank in writing of any material loss, damage or adverse
condition affecting the Property.
,)AIQ7r,
/2008 12:45:00 PM CUMBERLAND COUNTY
Inst it 9n07dnnne - o.,,.., c s 4 ?
Eminent Domain. Should the Property or any interest therein be taken or
damaged by reason of any public use or improvement or condemnation proceeding
("Condemnation"), or should Mortgagor receive any notice or other information
regarding such Condemnation, Mortgagor shall give prompt written notice thereof to
Bank. Bank shall be entitled to all compensation, awards and other payments or relief
granted in connection with such Condemnation and, at its option, may commence,
appear in and prosecute in its own name any action or proceedings relating thereto.
Bank shall be entitled to make any compromise or settlement in connection with such
taking or damage. All compensation, awards, and damages awarded to Mortgagor
related to any Condemnation (the "Proceeds") are hereby assigned to Bank and
Mortgagor agrees to execute such further assignments of the Proceeds as Bank may
require. Bank shall have the option of applying or paying the Proceeds in the same
manner as insurance proceeds as provided herein. Mortgagor appoints Bank as its
attorney-in-fact to receive and endorse the Proceeds to Bank, which appointment is
coupled with an interest and shall be irrevocable as long as any Obligations remain
unsatisfied.
Environmental Condition of Property and Indemnity. Mortgagor warrants
and represents to Bank, except as reported by Mortgagor to Bank in writing, that: (i)
Mortgagor has inspected and is familiar with the environmental condition of the
Property; (ii) the Property and Mortgagor, and any occupants of the Property,
compliance with and shall continue to be in compliance with all applicable ederalastate
and local laws and regulations intended to protect the environment and public health
and safety as the same may be amended from time to time ("Environmental Laws"); (iii)
the Property is not and has never been used to generate, handle, treat, store or dispose
of, in any quantity, oil, petroleum products, hazardous or toxic substances, hazardous
waste, regulated substances or hazardous air pollutants ("Hazardous Materials") in
violation of any Environmental Laws; (iv) no Hazardous Materials (including asbestos,
mold or lead paint in any form) are located on or under the Property or emanate from
the Property; (v) there are no unregistered underground storage tanks on the Property
that are subject to any underground storage tank registration laws or regulations; (vi) no
notice has been received with regard to any Hazardous Material on the Property; (vii) no
action, investigation or proceeding is pending or to Mortgagor's knowledge threatened
which seeks to enforce any right or remedy against Mortgagor or the Property under
any Environmental Law; and (viii) all licenses, permits and other governmental or
regulatory actions necessary for the Property to comply with Environmental Laws shall
be obtained and maintained and Mortgagor shall assure compliance therewith.
Further, Mortgagor represents to Bank that no portion of the Property is a
protected wetland. Mortgagor agrees to notify Bank immediately upon receipt of any
citations, warnings, orders, notices, consent agreements, process or claims alleging or
relating to violations of any Environmental Laws or to the environmental condition of the
Property and shall conduct and complete all investigations and all cleanup actions
necessary to comply with the Environmental Laws and to remove, in accordance with
Environmental Laws, any Hazardous Material from the Property.
IPI07F
'2008 12:45:00 PM CUMBERLAND COUNTY
Inef i1 9M7A nnnA
Mortgagor shall indemnify, hold harmless, and defend Bank from and against any
and all damages, penalties, fines, claims, suits, liabilities, costs, judgments and
expenses, including attorneys', consultants' or experts' fees of every kind and nature
incurred, suffered by or asserted against Bank as a direct or indirect result of: (i)
representations made by Mortgagor in this Section being or becoming untrue in any
material respect; (ii) Mortgagor's violation of or failure to meet the requirements of any
Environmental Laws; or (iii) Hazardous Materials which, while the Property is subject to
this Mortgage, exist on the Property. Bank shall have the right to arrange for or conduct
environmental inspections of the Property from time to time (including the taking of soil,
water, air or material samples). The cost of such inspections made after Default (as
hereinafter defined) or which are required by laws or regulations applicable to Bank
shall be borne by Mortgagor. However, Mortgagor's indemnity shall not apply to any
negligent or intentional act of Bank which takes place after foreclosure or satisfaction of
this Mortgage. These indemnification obligations are in addition to General
Indemnification provisions set forth hereafter. Mortgagor's Obligations under this
section shall continue, survive and remain in full force and effect notwithstanding the
repayment of the Obligations, a foreclosure of or exercise of power of sale under this
instrument, a delivery of a deed in lieu of foreclosure, a cancellation or termination of
record of this instrument and the transfer of the Property.
Appraisals. Mortgagor agrees that Bank may obtain an appraisal of the
Property when required by the regulations of the Federal Reserve Board or the Office of
the Comptroller of the Currency, or any other regulatory agency or at such other times
as Bank may reasonably require. y uch appraisals shall be performed by an
independent third party appraiser selected by Bank. The cost of such appraisals shall
be borne by Mortgagor. If requested by Bank, Mortgagor shall execute an engagement
letter addressed to the appraiser selected by Bank. Mortgagor's failure or refusal to
sign such an engagement letter, however, shall not impair Bank's right to obtain such an
appraisal. Mortgagor agrees to pay the cost of such appraisal within 10 days after
receiving an invoice for such appraisal.
Inspections. Bank, or its representatives or agents, are authorized to enter at
any reasonable time upon any part of the Property for the purpose of inspecting the
Property and for the purpose of performing any of the acts it is authorized to perform
under the terms of this Mortgage.
Liens and Subrogation. Mortgagor shall pay and promptly discharge all liens,
claims and encumbrances upon the Property. Mortgagor shall have the right to contest
in good faith the validity of any such lien, claim or encumbrance, provided: (i) such
contest suspends the collection thereof or there is no danger of the Property being sold
or forfeited while such contest is pending; (ii) Mortgagor first deposits with Bank a bond
or other security satisfactory to Bank in such amounts as Bank shall reasonably require;
and (iii) Mortgagor thereafter diligently proceeds to cause such lien, claim or
encumbrance to be removed and discharged.
'008 12:45:00 PM CUMBERLAND COUNTY
Bank shall be subrogated to any liens, claims and encumbrances against
Mortgagor or the Property that are paid or discharged through payment by Bank or with
loan proceeds, notwithstanding the record cancellation or satisfaction thereof.
Waiver of Mortgagor's Rights. To the fullest extent permitted by law,
Mortgagor waives the benefit of all laws now existing or that hereafter may be enacted
providing for (i) any appraisement before sale of any portion of the Property, (ii) in any
way extending the time for the enforcement of the collection of the Note or the debt
evidenced thereby or any of the other Obligations, and any rights to hearing prior to the
exercise by Bank of any right, power, or remedy herein provided to Bank.
To the full extent Mortgagor may do so, Mortgagor agrees that Mortgagor will not
at any time insist upon, plead, claim or seek to take the benefit or advantage of any law
now or hereafter in force providing for any exemption (including homestead exemption),
appraisement, valuation, stay, extension or redemption, and Mortgagor for themselves
and their respective heirs, devisees, representatives, successors and assigns, and for
any and all persons claiming any interest in the Property, to the extent permitted by law,
hereby waive and release all rights of valuation, appraisement, redemption, stay of
execution, the benefit of all exemption laws, notice of election to mature or declare due
the whole of the secured indebtedness and marshalling in the event of foreclosure of
the liens hereby created. Mortgagor further waives any and all notices including,
without limitation, notice of intention to accelerate and of acceleration of the Obligations.
Payments by Bank. In the event of Default (as hereinafter defined) in the timely
payment or performance of any of the Obligations, Bank, at its option and without any
duty on its part to determine the validity or necessity thereof, may pay the sums for
which Mortgagor is obligated. Further, Bank may pay such sums as Bank deems
appropriate for the protection and maintenance of the Property including, without
limitation, sums to pay Impositions and other levies, assessments or liens, maintain
insurance, make repairs, secure the Property, maintain utility service, intervene in any
condemnation and pay attorneys' fees and other fees and costs to enforce this
Mortgage or protect the lien hereof (including foreclosure) or collect the Obligations,
without limitation, including those incurred in any proceeding including bankruptcy or
arbitration. Any amounts so paid shall bear interest at the default rate stated in the Note
and shall be secured by this Mortgage.
Indemnification. Mortgagor shall protect, indemnify and save harmless Bank
from and against all losses, liabilities, obligations, claims, damages, penalties, fines,
causes of action, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) (collectively, "Damages") imposed upon, incurred by or
asserted or assessed against Bank on account of or in connection with (i) the Loan
Documents or any failure or alleged failure of Mortgagor to comply with any of the terms
of, or the inaccuracy or breach of any representation in, the Loan Documents; (ii) the
Collateral or any claim of loss or damage to the Property or any injury or claim of injury
to, or death of, any person or property that may be occasioned by any cause
whatsoever pertaining to the Property or the use, occupancy or operation thereof, (iii)
-,o-1 n7F
Y2008 12:45:00 PM
any failure or alleged failure of Mortgagor to comply with any law, rule or regulation
applicable to it or to the Property or the use, occupancy or operation of the Property
(including, without limitation, the failure to pay any taxes, fees or other charges), (iv) any
Damages whatsoever by reason of any alleged action, obligation or undertaking of Bank
relating in any way to or any matter contemplated by the Loan Documents, (v) any claim
for brokerage fees or such other commissions relating to the Property or any other
Obligations, or (vi) any and all liability arising from any leases related to the Property.
Nothing contained herein shall require Mortgagor to indemnify Bank for any Damages
resulting from Bank's gross negligence or its willful and wrongful acts, and such
indemnity shall be effective only to the extent of any Damages that may be sustained by
Bank in excess of any net proceeds received by it from any insurance of Mortgagor
(other than self-insurance) with respect to such Damages. The indemnity provided for
herein shall survive payment of the Obligations and shall extend to the officers,
directors, employees and duly authorized agents of Bank. In the event the Bank incurs
any Damages arising out of or in any way relating to the transaction contemplated by
the Loan Documents (including any of the matters referred to in this section), the
amounts of such Damages shall be added to the Obligations, shall bear interest, to the
extent permitted by law, at the interest rate borne by the Obligations from the date
incurred until paid and shall be payable on demand.
Assignment of Rents. Mortgagor hereby absolutely assigns and transfers to
Bank all the leases, rents, issues and profits of the Property (collectively "Rents").
Although this assignment is effective immediately, so long as no Default exists, Bank
gives to and confers upon Mortgagor the privilege under a revocable license to collect
as they become due, but not prior to accrual, the Rents and to demand, receive and
enforce payment, give receipts, releases and satisfactions, and sue in the name of
Mortgagor for all such Rents. Mortgagor represents there has been no prior assignment
of leases or Rents, and agrees not to further assign such leases or Rents. Upon any
occurrence of Default, the license granted to Mortgagor herein shall be automatically
revoked without further notice to or demand upon Mortgagor, and Bank shall have the
right, in its discretion, without notice, by agent or by a receiver appointed by a court, and
without regard to the adequacy of any security for the Obligations, (i) to enter upon and
take possession of the Property, (ii) notify tenants, subtenants and any property
manager to pay Rents to Bank or its designee, and upon receipt of such notice such
persons are authorized and directed to make payment as specified in the notice and
disregard any contrary direction or instruction by Mortgagor, and (iii) in its own name,
sue for or otherwise collect Rents, including those past due, and apply Rents, less costs
and expenses of operation and collection, including attorneys' fees, to the Obligations in
such order and manner as Bank may determine or as otherwise provided for herein.
Bank's exercise of any one or more of the foregoing rights shall not cure or waive any
Default or notice of Default hereunder.
Due on Sale or Further Encumbrance or Transfer of an Interest in
Mortgagor. Without the prior written consent of Bank in each instance, Mortgagor shall
not (i) sell, convey, transfer or encumber the Property, or any part thereof or interest
therein, whether legal or equitable, (ii) cause or permit any transfer of the Property or
,>nnn 19-Ar-nn vnA
any part thereof, whether voluntarily, involuntarily or by operation of law, or (iii) enter
into any agreement or transaction to transfer, or accomplish in form or substance a
transfer, of the Property. A "transfer" of the Property includes: (a) the direct or indirect
sale, transfer or conveyance of the Property or any portion thereof or interest therein;
(b) the execution of an installment sale contract or similar instrument affecting all or any
portion of the Property; (c) if Mortgagor or any general partner or member of Mortgagor,
is a corporation, partnership, limited liability company, trust or other business entity, the
transfer, pledge, assignment or encumbrance (whether in one transaction or a series of
transactions) of any stock, partnership, limited liability company or other ownership
interests in such corporation, partnership, limited liability company or entity including,
without limitation, changes in stockholders, partners, members, managers, trustees,
beneficiaries, or their respective interests; whether directly or indirectly; (d) if Mortgagor,
or any general partner or member of Mortgagor, is a corporation, the creation or
issuance of new stock by which an aggregate of more than 10% of such corporation's
stock shall be vested in a party or parties who are not now stockholders; and (e) an
agreement by Mortgagor leasing all or a substantial part of the Property for other than
actual occupancy by a space tenant thereunder or a sale, assignment or other transfer
of or the grant of a security interest in and to any Leases.
Bank's consent to any conveyance or encumbrance may be conditioned upon an
increase in the interest rate specified in the Note (or other Obligations), an extension or
curtailment of the maturity of the Obligations, or other modification of the Note or this
instrument.
Remedies of Bank on Default. Failure of Mortgagor or any other person liable
to timely pay or perform any of the Obligations or a violation of the preceding section is
a default ("Default") under this Mortgage. Upon the occurrence of Default the following
remedies are available, without limitation, to Bank: (i) Bank may exercise any or all of
Bank's remedies under this Mortgage or other Loan Documents including, without
limitation, acceleration of the maturity of all payments and Obligations, other than
Obligations under any swap agreements (as defined in 11 U.S.C. § 101, as in effect
from time to time) with Bank or any of its affiliates, which shall be due in accordance
with and governed by the provisions of said swap agreements (as defined in 11 U.S.C.
§ 101, as in effect from time to time); (ii) Bank may take immediate possession of the
Property or any part thereof (which Mortgagor agrees to surrender to Bank) and
manage, control or lease the same to such persons and at such rental as it may deem
proper and collect and apply Rents to the payment of: (a) the Obligations, together with
all costs and attorneys' fees; (b) all Impositions and any other levies, assessments or
liens which may be prior in lien or payment to the Obligations, and premiums for
insurance, with interest on all such items; and (c) the cost of all alterations, repairs,
replacements and expenses incident to taking and retaining possession of the Property
and the management and operation thereof; all in such order or priority as Bank in its
sole discretion may determine. The taking of possession shalt not prevent concurrent or
later proceedings for the foreclosure sale of the Property; (iii) Bank may apply to any
court of competent jurisdiction for the appointment of a receiver for all
including, without limitation, to manage and operate the Pro a purposes
p rty or any part thereof,
1 f1
r.ow nor
2008 12:45:00 PM
and to apply the Rents therefrom as hereinabove provided. In the event of such
application, Mortgagor consents to the appointment of a receiver, and agrees that a
receiver may be appointed without notice to Mortgagor, without regard to whether
Mortgagor has committed waste or permitted deterioration of the Property, without
regard to the adequacy of any security for the Obligations, and without regard to the
solvency of Mortgagor or any other person, firm or corporation who or which may be
liable for the payment of the Obligations; (iv) Bank may exercise all the remedies of a
mortgagee as provided by law and in equity including, without limitation, foreclosure
upon this Mortgage and sale of the Property, or any part of the Property, at public sale
conducted according to applicable law (referred to as "Sale") and conduct additional
Sales as may be required until all of the Property is sold or the Obligations are satisfied;
(v) With respect to any portion of the Property governed by the UCC, Bank shall have all
of the rights and remedies of a secured party thereunder. Bank may elect to foreclose
upon any Property that is fixtures under law applicable to foreclosure of interests in real
estate or law applicable to personal property; (vi) Bank may bid at Sale and may accept,
as successful bidder, credit of the bid amount against the Obligations as payment of any
portion of the purchase price; and (vii) Bank shall apply the proceeds of Sale, first to any
fees or attorney fees permitted Bank by law in connection with Sale, second to
expenses of foreclosure, publication, and sale permitted Bank by law in connection with
Sale, third to the Obligations, and any remaining proceeds as required by law.
Miscellaneous Provisions. Mortgagor agrees to the following: (i) All remedies
available to Bank with respect to this Mortgage or available at law or in equity shall be
cumulative and may be pursued concurrently or successively. No delay by Bank in
exercising any remedy shall operate as a waiver of that remedy or of any Default. Any
payment by Bank or acceptance by Bank of any partial payment shall not constitute a
waiver by Bank of any Default; (ii) Mortgagor represents that Mortgagor (a) is (1) an
adult individual and is sui iuns, or (2) a corporation, general partnership, limited
partnership, limited liability company or other legal entity, duly organized, validly existing
and in good standing under the laws of its state of organization, and is authorized to do
business in each other jurisdiction wherein its ownership of property or conduct of
business legally requires such organization (b) has the power and authority to own its
properties and assets and to carry on its business as now being conducted and as now
contemplated; and (c) has the power and authority to execute, deliver and perform, and
by all necessary action has authorized the execution, delivery and performance of, all of
its obligations under this Mortgage and any other Loan Document to which it is a party.
(iii) The provisions hereof shall be binding upon and inure to the benefit of Mortgagor, its
heirs, personal representatives, successors and assigns including, without limitation,
subsequent owners of the Property or any part thereof, and shall be binding upon and
inure to the benefit of Bank, its successors and assigns and any future holder of the
Note or other Obligations; (iv) Any notices, demands or requests shall be sufficiently
given Mortgagor if in writing and mailed or delivered to the address of Mortgagor shown
above or to another address as provided herein and to Bank if in writing and mailed or
delivered to Wachovia Bank, National Association, Mail Code PA6466, P. O. Box 1102,
600 Penn Street, Reading, PA 19603, or such other address as Bank may specify from
time to time and in the event that Mortgagor changes Mortgagor's address at any time
11 281975
!/2008 12:45:00 PM CUMBERLAND COUNTY
prior to the date the Obligations are paid in full, that party shall promptly give written
notice of such change of address by registered or certified mail, return receipt
requested, all charges prepaid. Notices to Bank must include the mail code. (v) All
payments shall be mailed to Wachovia Bank, National Association, Mail Code PA6466,
P. O. Box 1102, 600 Penn Street, Reading, PA 19603 or such other address as
provided by Bank in writing. (vi) This Mortgage may not be changed, terminated or
modified orally or in any manner other than by an instrument in writing signed by the
parties hereto, (vii) All references to "Bank" shall mean to "Bank (for itself and its
affiliate)"; (viii) The captions or headings at the beginning of each paragraph hereof are
for the convenience of the parties and are not a part of this Mortgage; (ix) If the lien of
this Mortgage is invalid or unenforceable as to any part of the Obligations, the
unsecured portion of the Obligations shall be completely paid (and all payments made
shall be deemed to have first been applied to payment of the unsecured portion of the
Obligations) prior to payment of the secured portion of the Obligations and if any clause,
provision or obligation hereunder is determined invalid or unenforceable the remainder
of this Mortgage shall be construed and enforced as if such clause, provision or
obligation had not been contained herein; (x) This Mortgage shall be governed by and
construed under the laws of the jurisdiction where this Mortgage is recorded; (xi)
Mortgagor by execution and Bank by acceptance of this Mortgage agree to be bound by
the terms and provisions hereof. Final Agreement. This Agreement and the other
Loan Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent agreements of the
parties. There are no unwritten agreements between the parties.
Minimum Standards. In addition to the requirements set forth in the Loan
Documents, all surveys, insurance, title policies, construction documents, environmental
reports, payment and performance bonds, and any other due diligence or additional
documents required in connection with this Loan, shall comply with Bank's minimum
standards in place from time to time for such documents, which shall be provided in
writing by Bank to Borrower upon request.
CONFESSION OF JUDGMENT FOR POSSESSION. FOR THE PURPOSE OF
OBTAINING POSSESSION OF THE PROPERTY UPON THE OCCURRENCE OF ANY
EVENT OF DEFAULT, MORTGAGOR HEREBY AUTHORIZES AND EMPOWERS
ANY ATTORNEY OF ANY COURT OF RECORD, IN THE COMMONWEALTH OF
PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR MORTGAGOR, AS WELL
AS FOR THE PERSONS CLAIMING UNDER, BY, OR THROUGH MORTGAGOR, TO
APPEAR FOR AND CONFESS JUDGMENT AGAINST MORTGAGOR AND ALL
PERSONS CLAIMING UNDER, BY, OR THROUGH MORTGAGOR, IN FAVOR OF
BANK FOR THE RECOVERY BY BANK OF POSSESSION OF THE PROPERTY, FOR
WHICH THIS MORTGAGE (OR A COPY THEREOF VERIFIED BY AFFIDAVIT) SHALL
BE A SUFFICIENT WARRANT; WHEREUPON A WRIT OF POSSESSION OF THE
PROPERTY MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR WRIT OR
PROCEEDING WHATSOEVER AND WITHOUT STAY OF EXECUTION,
MORTGAGOR HEREBY RELEASING AND AGREEING TO RELEASE BANK AND
ANY SUCH ATTORNEY FROM ALL PROCEDURAL ERRORS AND DEFECTS
11) 281975
2/2008 12:45:00 PM CUMBERLAND COUNTY Inst.# 200740004 - Page 12 of 16
DSR has determined
:that this document
Is.- a COPY'.
WHATSOEVER IN ENTERING SUCH ACTION OR JUDGMENT OR IN CAUSING
SUCH WRIT OR PROCESS TO BE ISSUED OR IN ANY PROCEEDING THEREON
OR CONCERNING THE SAME, PROVIDED THAT BANK SHALL HAVE FILED IN
SUCH ACTION AN AFFIDAVIT MADE ON BANK'S BEHALF SETTING FORTH THE
FACTS NECESSARY TO AUTHORIZE THE ENTRY OF SUCH JUDGMENT
ACCORDING TO THE TERMS OF THIS INSTRUMENT, OF WHICH FACTS SUCH
AFFIDAVIT SHALL BE PRIMA FACIE EVIDENCE. IT IS HEREBY EXPRESSLY
AGREED THAT IF FOR ANY REASON AFTER ANY SUCH ACTION HAS BEEN
COMMENCED, THE SAME SHALL BE DISCONTINUED, MARKED SATISFIED OF
RECORD, OR BE TERMINATED, OR POSSESSION OF THE PROPERTY REMAIN IN
OR BE RESTORED TO MORTGAGOR OR ANYONE CLAIMING UNDER, BY, OR
THROUGH MORTGAGOR, BANK MAY, WHENEVER AND AS OFTEN AS BANK
SHALL HAVE THE RIGHT TO TAKE POSSESSION AGAIN OF THE PROPERTY,
BRING ONE OR MORE FURTHER ACTIONS IN THE MANNER HEREINBEFORE
SET FORTH TO RECOVER POSSESSION OF THE PROPERTY AND TO CONFESS
JUDGMENT THEREIN AS HEREINABOVE PROVIDED, AND THE AUTHORITY AND
POWER ABOVE GIVEN TO ANY SUCH ATTORNEY SHALL EXTEND TO ALL SUCH
FURTHER ACTIONS IN EJECTMENT AND CONFESSION OF JUDGMENT THEREIN
AS HEREINABOVE PROVIDED WHETHER BEFORE OR AFTER AN ACTION OF
MORTGAGE FORECLOSURE IS BROUGHT OR OTHER PROCEEDINGS IN
EXECUTION ARE INSTITUTED UPON THIS MORTGAGE OR ANY INSTRUMENT
THEN EVIDENCING ANY OF THE OBLIGATIONS, AND AFTER JUDGMENT
THEREON OR THEREIN AND AFTER A JUDICIAL SALE OF THE PROPERTY.
IN WITNESS WHEREOF, Mortgagor has duly signed and sealed this instrument
as of the day and year first above written.
Mortgagor
RAM DEVELOPMENT. LLC
Ramesh S. Rao, Member
I hereby certify that the address of the Bank (Mortgagee) is 600 Penn Street, P.O. Box
1102 Reading, PA 19603.
gafkQ I$dvr, Fsrqui4?
j rJ L
1
1A
281975
/22/2008 12:45:00 PM CUMBERLAND COUNTY Instl 200740004 - Page 13 of 16
STATE OF MASSACHUSETTS
COUNTY OF WORCESTER
SS
On this day of I I) GZ'i!?- , 2007, before me, a notary public,
the undersigned officer, personally appeared RAMESH S. RAO, who acknowledged
himself to be a member of RAMA Development, LLC, and that he as such member,
being authorized to do so, executed the foregoing Open-End Purchase Money
Mortgage and Assignment of Rents for the purposes therein contained, by signing the
name of the limited liability company by himself as such member.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(NOTARIAL SEALS
o4PubTic-
L _ j ? pig L,??-
.-.. ? •'` .. •' y 114 ?': ,!J
My Commission Expires: ! Z???G
,d
281975
17/22/2008 12:45:00 PM CUMBERLAND COUNTY Instl 200740004 - Page 14 of 16
Rev. 10116107
EXHIBIT "A"
ALL THAT CERTAIN tract of land situate in the Township of South Middleton,
Cumberland County, Pennsylvania known as Lot 1 on the plan for Ralph C. Otto,
recorded in Plan Book 40, page 91, bounded and described as follows:
BEGINNING at a point on the north side of Lisburn Road (T-511) at lands of No
Otto; thence along the north side of said road, North 72 degrees 10 minutes West three
hundred seventy-one and nineteen one-hundredths feet; thence along same North 73
degrees 02 minutes 06 seconds West one thousand two hundred twenty-one and
seventeen one-hundredths feet; thence along same North 68 degrees 12 minutes 55
seconds West three hundred and twenty-eight one-hundredths feet; thence along same
North 67 degrees forty minutes West three hundred eighty-nine and twenty-nine one-
hundredths feet to a point at Lot 2; thence along said lot North 22 degrees 20 minutes
East five hundred eighty-four and fifteen one-hundredths feet to a point at lands now or
formerly of Beamer; thence along said lands North 86 degrees 00 minutes East one
thousand and ninety-one one-hundredths feet to a point at lands now or formerly of
Anna Kahn; thence along said lands South 81 degrees 00 minutes East one thousand
thirty-two and eighty-nine one-hundredths feet to lands of No Otto; thence along said
lands South 08 degrees 45 minutes West one thousand one hundred seventy-five and
twenty one-hundredths feet to a point and place of BEGINNING.
BEING part of Tract 10 of the same premises which the Court of Common Pleas
by order dated 04/03/78 and recorded 04/05/78 in the Office of the Recorder of Deeds
in and for Cumberland County, Pennsylvania, in Deed Book 27-S-476, awarded unto
Ralph C. Otto.
THE SAID Ralph C. Otto died 03/07/96 leaving Last Will and Testament filed and
remaining of record in the Register of Wills Office of Cumberland County to No. 21-96-
00245, wherein he appointed Michael Guy Executor to whom letters testamentary were
granted.
)7/22/2008 12:45:00 PM CUMBERLAND COUNTY Inst.# 200740004 - Page 15 of 16
ROBERT P. ZIEGLER
RECORDER OF DEEDS
CUMBERLAND COUNTY
1 COURTHOUSE SQUARE
CARLISLE, PA 1.7013
717-240-6370
Instrument Number - 200740004
Recorded On 10/19/2007 At 10:40:12 AM
* Instrument Type - MORTGAGE
Invoice Number - 7056 User ID - RAK
* Mortgagor - RAMA DEVELOPMENT
* Mortgagee - WACHOVIA BANK N A
* Customer - COMMUNITY STL
* FEES
STATE WRIT TAX
STATE JCS/ACCESS TO
JUSTICE
RECORDING FEES -
RECORDER OF DEEDS
AFFORDABLE HOUSING
COUNTY ARCHIVES FEE
ROD ARCHIVES FEE
TOTAL PAID
$0.50
$10.00
$33.50
$11.50
$2.00
$3.00
$60.50
Certification Page
DO NOT DETACH
This page is now part
of this legal document.
I Certify this to be recorded
in Cumberland County PA
o
0
RECORDER O D EDS
?o
* - Information denoted by an asterisk may change during
the verification process and may not be reflected on this page.
* Total Pages - 16
X7/22/2008 12:45:00 PM CUMBERLAND COUNTY Inst.# 200740004 - Page 16 of 16
FILES "'rr~r
2004 NOV 23 AM -10: 2 li
cutk:?'_ US T,'
YLVANIA
? 7?-, s"d 19 ?- 4-4x
4,6? Ja d
MCA
A14- g, 3 3 ?sv
McCARTER & ENGLISH, LLP
By: Robert J. Hoelscher
Christine L. Barba
Identification Nos. 26746, 206938
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
WACHOVIA BANK, NATIONAL
ASSOCIATION
600 Penn St., P.O. Box 1192
Reading, PA 19603
FIl.Ef3-t-7~Fi ~F
2i11~ J~r~ f 5 P-f 2~ 5~
.~~f
Attorneys for Plaintiff,
Wachovia Bank, National Association
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff,
vs.
CIVIL ACTION NO. 09-8098
RAMA DEVELOPMENT, LLC
4209 York Road
New Oxford, PA 17350
Defendant.
PRAECIPE TO REINSTATE COMPLAINT
TO THE PROTHONOTARY:
Kindly reinstate the Complaint in Civil Action in the above-captioned matter for service.
McCARTER & ENGLISH, LLP
e or Plaintiff, Wachovia Bank, N.A.
Dated: January 14, 2010 By:
ert oelscher
Christine L. Barba
Identification Nos. 26746, 206938
1735 Market Street, Suite 700
Philadelphia, PA 19103
215.979.3800 (phone)
215.979.3899 (fax)
(0 ~ op p p IAT`f`f
~~`~ fco~R(o
p.~ ~3~3tv1
MEl 9496918v.1
%,
McCARTER & ENGLISH, LLP
By: Robert J. Hoelscher
Christine L. Barba
Identification Nos. 26746, 206938
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
WACHOVIA BANK, NATIONAL
ASSOCIATION
600 Penn St., P.O. Box 1192
Reading, PA 19603
Plaintiff,
vs.
RAMA DEVELOPMENT, LLC
4209 York Road
New Oxford, PA 17350
Defendant.
-~ -~.~~
~d-Uf rl~~.
20 ~ a ~r~~ E 7 ~~ i ~
CURJi~I iL: ~ 4.~ ~3~J'"iri t
rd~~r~~.'~L!
Attorneys for Plaintiff,
Wachovia Bank, National Association
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION NO. 09-8098
CERTIFICATE OF SERVICE OF COMPLAINT IN MORTGAGE FORECLOSURE
I, Christine L. Barba, hereby certify as follows:
1. On January 19, 2010, I caused a true and correct copy of the Complaint in
Mortgage Foreclosure filed by plaintiff Wachovia Bank, National Association, in the above-
captioned matter to be served on Ramesh S. Rao, sole Member and Registered Agent for Service
for defendant Rama Development, LLC, via Certified Mail, Return Receipt Requested, and via
First Class Mail, postage prepaid, at his address at 10 Evergreen Street, Jamaica Plain,
Massachusetts, 02130.
2. The Certified Mail package was delivered on January 23, 2010. True and correct
copies of the enclosure letter and stamped and signed Certified Mail receipt are attached hereto
at Exhibit A.
MEl 9728414v.1
3. The First Class Mail was not returned.
4. In accordance with Pennsylvania Rule of Civil Procedure 440, service upon
defendant Rama Development, LLC, was effective on January 23, 2010.
I hereby certify that the foregoing facts are true and correct to the best of my
knowledge, information and belief. I understand that any false statements herein are subject to
the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities.
~,
Dated: March 16, 2010
istin .Barba, Esq.
McCARTER & ENGLISH, LLP
Attorneys for Plaintiff,
Wachovia Bank, National Association
ME 1 9728414v. l
MCCARTER
&ENGLISH
ATTORNEYS AT LAW
January 19, 2010
VIA REGULAR MAIL AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Ramesh S. Rao
Member and Registered Agent
Rama Development, LLC
10 Evergreen Street
Jamaica Plain, MA 02130
Re: Wachovia Bank, N.A. v. Rama Development, LLC -Court of Common Pleas
Christine Bare for Cumberland County, Pennsylvania -Civil Action No. 09-8098
Assoaate
T. 215.979.3834 Dear Mr. Rao:
F. 215.933.3134
d~erl~rmcarter.~[n
Enclosed for service upon you, as the sole Member and Registered Agent for
Defendant Rama Development, LLC (the "Defendant"), is a copy of a Complaint in
Mortgage Foreclosure and accompanying Notice brought against the Defendant by
~&~;~.,, LLP plaintiff Wachovia Bank, N.A.
Melton 63Nc Center
1735N~t~etst~-sua~7oa As noted in the Notice, you are required to serve an Answer to the Complaint within
PFatadetpfxa, PA 19103 20 da s after it is served on ou. If ou fail to do so, judgment b default ma be
T. 215.579.3800 Y Y Y Y Y
F. 215.979.3899 taken against you for the relief demanded in the Complaint.
vwvro.rrr.,carter.wm
tr yours,
ristine rba
eosTON
Enclosures
HA~tFC~D
NEW YC1RK
NEV1tgRK
PHILADELPHIA
STANFORD
WILMINGTON
ME1 9509995x.1
v
O
W
j
j
Q
2
N
O
N
~_
~' m
1 Z
~3
3
N
2
~'
m
A
~,
~',
3 ~
N
fl ~.!
~ ~..1
C O'
7
m Q
~..1
~~
~1
W
W
O!
~I
r. _.
McCARTER & ENGLISH, LLP
By: Robert J. Hoelscher
Christine L. Barba
Identification Nos. 26746, 206938
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
WELLS FARGO BANK, NATIONAL
ASSOCIATION, successor-by-merger to
Wachovia Bank, National Association,
Plaintiff,
VS.
RAMA DEVELOPMENT, LLC,
Defendant.
C N
~
~.~
C] -.,~
,
~:;~
~,j
~__ ~ _
?:;,
-
~,,: ,
-c~ _
- ~ ~ ~:,
.y ~~ ~~ ;~ t~~
`~
~ c.r~
~;
-~
Attorneys for Plaintiff,
Wells Fargo Bank, National Association,
successor-by-merger to Wachovia Bank,
National Association
COURT OF COMMON PLEAS Ck'~/~~S
CUMBERLAND COUNTY, PA
• s ~Sr sb c~ sFs 6 ~
s 3 7. yy `~
' 4' (0 DD r~ d
' s /ti- a 1 ""
s Z . so p~ ~a
CIVIL ACTION NO. 09-8098 ~..~`` ~y ~~ ~~
g ~. oU ~.c Cd.
~' S"d ~~-e I- L
PRAECIPE FOR WRIT OF EXECUTION
To the Prothonotary:
The undersigned hereby certifies that the below does not arise out of a retail installment
sale, contract or account based on a confession of judgment, but if it does, it is based on the
appropriate original proceeding filed pursuant to Act 7 of 1966 as amended; and for real property
pursuant to Act 6 of 1974 as amended.
Plaintiff Wells Fargo Bank, National Association, successor-by-merger to Wachovia
Bank, National Association, requests that you issue a writ of execution in the above matter,
ME] 10112780v.1
directed to the sheriff of Cumberland County, against the defendant, Rama Development, LLC.
The following amounts are due Plaintiff in the above matter:
Amount of Judgment as Entered:
Interest from Apri122, 2010, through
June 9, 2010, at the rate of $210.39 der diem
Interest from and after June 10, 2010, at
the rate of $210.39 der diem:
Costs:
TOTAL DUE TO PLAINTIFF:
$2,378,145.96
10,098.72
(to be added)
(to be added)
McCARTER & ENGLISH, LLP
Attorneys for Petitioner,
Wells Fargo Bank, National Association,
successor-by-merger to Wachovia Bank, National
Association
Dated: June 9, 2010 By:
~~ nn ,
~-~- (~~~
Robert J. Hoelscher
Christine L. Barba
ME1 ]0112780v.1
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
N009-8098 Civil
CIVIL ACTION -LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due WELLS FARGO BANK, NATIONAL ASSOCITATION,
SUCCESSOR-BY-MERGER TO WACHOVIA BANK, NATIONAL ASSOCIATION, Plaintiff (s)
From RAMA DEVELOMENT, LLC
(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$2,378,145.96 L.L.$.50
Interest FROM APRIL 22, 2010, THROUGH NNE 9,2010, AT THE RATE OF $210.39 PER DIEM
- $10,098.72
INTEREST FROM AND AFTER JUNE 10,2010, AT THE RATE OF $210.39 PER DIEM - TO BE
ADDED
Atty's Comm % Due Prothy $2.00
Atty Paid $166.44 Other Costs
Plaintiff Paid
Date: JUNE 9, 2010
uell, rothonotary
(Seal) By;
Deputy
REQUESTING PARTY:
Name ROBERT J. HOELSCHER, ESQUIRE
Address: MCCARTER & ENGLISH, LLP, MELLON BANK CENTER, 1735 MARKET STREET,
SUITE 700, PHILADELPHIA, PA 19103
Attorney for: PLAINTIFF
Telephone: 215-979-3800
Supreme Court ID No. 26746
CERTIFICATE OF SERVICE
I, Christine L. Barba, hereby certify that on June 9, 2010, I caused a true and correct copy
of the foregoing Praecipe for Writ of Execution and accompanying Writ of Execution to be
served upon the following via First-Class, U.S. Mail, postage prepaid, and Certified Mail, Return
Receipt Requested:
Rama Development, LLC
c/o Ramesh S. Rao, Sole Member and
10 Evergreen Street
Jamaica Plain, MA 0 30
Y.,,.... ~....~...
Attorneys for P aintiff, Wells Fargo Bank, N.A.,
successor-by-merger to Wachovia Bank, N.A.
ME1 ]0112780v.1
McCARTER & ENGLISH, LLP
By: Robert J. Hoelscher
Christine L. Barba
Identification Nos. 26746, 206938
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
_,
~~Lr~ ~ t i ~
~~r ~
Z~io .~~~~ -g ~ 3~ ~~
CUIv~ ~-~ ~..1 ~~uNTI'
t'C `id~~y~ tiJ1i ~ ,~,1~
Attorneys for Plaintiff,
Wells Fargo Bank, National Association,
successor-by-merger to Wachovia Bank,
National Association
WELLS FARGO BANK, NATIONAL COURT OF COMMON PLEAS
ASSOCIATION, successor-by-merger to CUMBERLAND COUNTY, PA
Wachovia Bank, National Association, :
Plaintiff,
vs.
RAMA DEVELOPMENT, LLC,
Defendant.
CIVIL ACTION NO. 09-8098
AFFIDAVIT PURSUANT TO PA R.C.P. 3129.1
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF PHILADELPHIA
SS
Wells Fargo Bank, National Association, successor-by-merger to Wachovia Bank,
National Association, Plaintiff in the above action, by its attorneys, McCarter & English, LLP,
sets forth as of the date of the Praecipe for Writ of Execution was filed the following information
concerning the real property located in the Township of South Middleton, County of
Cumberland, and Commonwealth of Pennsylvania:
1. Name and address of the Owner(s) or Reputed Owner(s):
Rama Development, LLC c/o Ramesh S. Rao, Sole Member
4209 York Road 10 Evergreen Street
New Oxford, PA 17350 Jamaica Plain, MA 02130
ME I ] 0112780v.1
2
3
4.
5.
Name and address of Defendant(s) in the judgment:
SAME AS ABOVE
Name and address of every judgment creditor whose judgment is a record lien on
the real property to be sold:
Wells Fargo Bank, N.A.
successor-by-merger to
Wachovia Bank, N.A.
c/o Robert J. Hoelscher
McCarter & English, LLP
1735 Market Street
Suite 700
Philadelphia, PA 19103
Name and address of last recorded holder of every mortgage of record:
Wells Fargo Bank, N.A.
successor-by-merger to
Wachovia Bank, N.A.
Penndel Land Co.
Ralph Otto Estate
c/o Robert J. Hoelscher
McCarter & English, LLP
1735 Market Street
Suite 700
Philadelphia, PA 19103
P.O. Box 124
Red Lion, PA 17356
c/o Roger M. Morgenthal, Esq.
2515 N. Front Street, 1 S` Floor
Harrisburg, PA 17110-1150
Name and address of every other person who has any record lien on their
property:
NONE KNOWN
6.
ME i ] 0112780v. l
Name and address of every other person who has any record interest in the
property and whose interest may be affected by the sale:
South Middleton Township Tax Collector
Attn: Robert Cairns
P.O. Box 40
Boiling Springs, PA 17007
Central Tax Bureau of Pennsylvania
1 Valley Street, Suite 103
Carlisle, PA 17013
Cumberland County Tax Claims Bureau
c/o Melissa F. Mixell, Director
1 Courthouse Sq.
Old Courthouse
Carlisle, PA 17013
Commonwealth of Pennsylvania
Department of Revenue
P.O. Box 2675
Harrisburg, PA 17105
7. Name and address of every other person of whom the Plaintiff has knowledge
who has any interest in the property which may be affected by the sale:
NONE KNOWN
The information provided in the foregoing Affidavit is provided solely to comply with
the Pennsylvania Rules of Civil Procedure 3129.1, and it is not intended to be a comprehensive
abstract of the condition of the title of the real estate which is being sold under this execution.
No person or entity is entitled to rely on any statements made herein in regard to the condition of
the title of the property or to rely on any statement herein in formulating bids which might be
made at the sale of the property.
I verify that the statements made in this Affidavit are true and correct to the best of my
personal knowledge or information and belief. _
Dated:
Robert J. Hoelscher
Attorney for Plaintiff, Wells Fargo Bank,
N.A., successor-by-merger to Wachovia
Bank, N.A.
Sworn to and subscribed efore me
this 9~h day of ' , 2010.
Notary Public
My Commission Expires: 7lIQ~l~ Z~i ~°~ ~-
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
GAIL P. MIRRA, Notary PubNc
City of Philadelphia, Phila. County
Cormnisseion s March 29, 12
ME 1 ] 0112780v.1
FiL~ ~~ =~"`'c
McCARTER & ENGLISH, LLP
By: Robert J. Hoelscher
Christine L. Barba
Identification Nos. 26746, 206938
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
2GIQ J~I>~ -9 ~a:~ 3~ 3
CU',~ ~ ~'i~,~jl'`
rt
Attorneys for Plaintiff,
Wells Fargo Bank, National Association,
successor-by-merger to Wachovia Bank,
National Association
WELLS FARGO BANK, NATIONAL
ASSOCIATION, successor-by-merger to
Wachovia Bank, National Association,
Plaintiff,
vs.
RAMA DEVELOPMENT, LLC,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION NO. 09-8098
Defendant.
NOTICE OF THE SALE OF REAL PROPERTY
(Rule 3129.2 Affidavit)
To: Rama Development, LLC, Defendant
c/o Ramesh S. Rao, Sole Member and Registered Agent
10 Evergreen Street
Jamaica Plain, MA 02130
To: All Other Parties In Interest
*See list of interested parties attached hereto as Exhibit A.
TAKE NOTICE of the following sale of real property (the "Property"):
PROPERTY: 48 Acre Parcel, Lisburn Road, South Middleton, PA
Parcel No. 40-09-0533-014
*A legal description of the Property is attached hereto as Exhibit B.
OWNER: Rama Development, LLC
ME 110112780v. l
DATE AND TIME of SALE: September 8, 2010 10:00 a.m.
LOCATION OF SALE: Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
JUDGMENT OF THE COURT: Judgment in the amount of $2,378,145.96, entered in favor of
Plaintiff Wells Fargo Bank, N.A., successor-by-merger to Wachovia
Bank, N.A., and against Defendant Rama Development, LLC, on
April 30, 2010, plus continuing interest and costs
TAKE FURTHER NOTICE that a Schedule of Distribution will be filed by the Sheriff
on a date specified by the Sheriff not later than thirty (30) days after the sale of the Property. The
distribution of the proceeds from the sale will be made in accordance with the Schedule unless
exceptions are filed thereto within ten (10) days after the filing of the Schedule.
*****
PROSPECTIVE PURCHASERS ARE RESPONSIBLE FOR DETERMINING THE
NATURE, LOCATION, CONDITION AND BOUNDARIES OF THE PROPERTIES
THEY SEEKS TO PURCHASE.
McCARTER & ENGLISH, LLP
Attorneys for Plaintiff,
Wells Fargo Bank, N.A., successor-by-merger to
Wachovia Bank, N.A.
Dated: June 9, 2010 By:
~~ j~-,~C~'~'A~~
Robert J. Hoelscher
Christine L. Barba
1735 Market Street
Suite 700
Philadelphia, PA 19103
(215) 979-3800
ME 1 10112780v.1
EXHIBIT A
List of Interested Parties
South Middleton Township Tax Collector Attn: Robert Cairns
P.O. Box 40
Boiling Springs, PA 17007
Central Tax Bureau of Pennsylvania 1 Valley Street, Suite 103
Carlisle, PA 17013
Cumberland County Tax Claims Bureau Attn: Melissa F. Mixell, Director
1 Courthouse Sq.
Old Courthouse
Carlisle, PA 17013
Commonwealth of Pennsylvania P.O. Box 2675
Department of Revenue Harrisburg, PA 17105
Robert A. Berry, Esq. Law Offices of Robert A. Berry
P.O. Box 929
Harrisburg, PA 17108
Penndel Land Co. P.O. Box .124
Red Lion, PA 17356
Estate of Ralph C. Otto c/o Roger M. Morgenthal, Esq.
2515 N. Front Street, 1 S` Floor
Harrisbur , PA 17110-1150
ME1 ]0112780v.1
EXHIBIT B
LEGAL DESCRIPTION OF PROPERTY
4H +/- ACRE PARCEL, LISBURN ROAD, TOWNSHIP OF SOUTH MIDDLETON,
CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA
ALL THAT CERTAIN tract of land situate in the Township of South Middleton, Cumberland
County, Pennsylvania known as Lot 1 on the plan of Ralph C. Otto, recorded in Plan Book 40,
page 91, bounded and described as follows:
BEGINNING at a point on the north side of Lisburn Road (T-511) at land of No Otto;
thence along the north side of said road, North 72 degrees 19 minutes West three hundred
seventy-one and nineteen one-hundredths feet; thence along same North 73 degrees 02 minutes
06 seconds West one thousand two hundred twenty-one and seventeen one-hundredths feet;
thence along same North 68 degrees 12 minutes 55 seconds West three hundred and twenty-eight
one hundredths feet; thence along same North 67 degrees forty minutes West three hundred
eighty-nine and twenty-nine one-hundredths feet to a point at Lot 2; thence along said lot North
22 degrees 20 minutes East five hundred eighty-four and fifteen one-hundredths feet to a point at
lands now or formerly of Beamer; thence along said lands North 86 degrees 00 minutes East one
thousand and ninety-one one-hundredths feet to a point at lands now or formerly of Anna Kahn;
thence along said lands South 81 degrees 00 minutes East one thousand thirty-two and eighty-
nine one-hundredths feet to land of No Otto; thence along said lands South 08 degrees 45
minutes West one thousand one hundred seventy-five and twenty one-hundredths feet to a point
and place of BEGINNING.
BEING part of Tract 10 of the same premises which the Court of Common Pleas by order
dated 04/03/78 and recorded 04/05/78 in the Office of the Recorder of Deeds in and for
Cumberland County, Pennsylvania, in Deed Book 27-5-476, awarded unto Ralph C. Otto.
THE SAID Ralph C. Otto died 03/07/96 leaving Last Will and Testament filed and
remaining of record in the Register of Wills Office of Cumberland County to No. 21-96-00245,
wherein he appointment Michael Guy Executor to whom letters testamentary are granted.
PARCEL NO. 40-09-0533-014
ME1 10112780v.1
McCARTER & ENGLISH, LLP
By: Robert J. Hoelscher
Christine L. Barba
Identification Nos. 26746, 206938
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
Fly r~~-~~,_~,,t
,, ~ ~.
.~~ ~~~ . ~ ~ ~r~V~~
2Q1~ J~~# -9 +' 3~ 5
WELLS FARGO BANK, NATIONAL
ASSOCIATION, successor-by-merger to
Wachovia Bank, National Association,
Plaintiff,
vs.
Attorneys for Plaintiff,
Wells Fargo Bank, National Association,
successor-by-merger to Wachovia Bank,
National Association
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
RAMA DEVELOPMENT, LLC, CIVIL ACTION NO. 09-8098
Defendant.
CERTIFICATE TO SHERIFF
I, Robert J. Hoelscher, hereby certify that:
1. The judgment entered in the above-captioned matter is based on an action in mortgage
foreclosure.
2. The Defendant owns the property being exposed to sale as a limited liability company.
3. The Defendant is a citizen of the Commonwealth of Pennsylvania.
McCARTER & ENGLISH, LLP
Attorneys for Plaintiff,
Wells Fargo Bank, National Association, successor-
by-merger to Wach via Bank, National Association
Dated: June 9, 2010 By:
p-~ l~,~e~~~.
Robert J. Hoelscher
ME 1 1 O 112780v.1
s
McCARTER & ENGLISH, LLP
By: Robert J. Hoelscher
Christine L. Barba
Identification Nos. 26746, 206938
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
WELLS FARGO BANK, NATIONAL
ASSOCIATION, successor-by-merger to
Wachovia Bank, National Association,
Plaintiff,
vs.
RAMA DEVELOPMENT, LLC,
Defendant.
SEC'. ~,,.:t r~
2Cl0~~~~ -9 p~~ 3~ ~~{
., ,
ti~... ~~i\t.'~i'~'~r'.1 `Ii~'.
Attorneys for Plaintiff,
Wells Fargo Bank, National Association,
successor-by-merger to Wachovia Bank,
National Association
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION NO. 09-8098
AFFIDAVIT OF COMPLIANCE WITH ACT 91
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF PHILADELPHIA
SS:
Before me the undersigned, a Notary Public in and for aforesaid State and County,
personally appeared Robert J. Hoelscher, who being duly sworn, deposes and says:
THAT Notice required by the Homeowners' Emergency Mortgage Assistance Act, Act
91 (35 P.S. §§1680.401c, et seq.), was not required as the property is not the principal residence
ME 1 10112780v.1
of the borrower.
Sworn to and subscribed before me
this ~i~l~ day of June, 2010.
_ ~ ~~ ,
Notary Public
My Commission Expires: ,7;~~ ?t Zo12-
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
GAIL P. MIRRA, Notary PubNc
Cityol Philadelphia, Ph~a Co~mty
My Commission Tres March"23, 2012
Robert J. Hoelscher
McCarter & English, LLP
Attorneys for Plaintiff, Wells Fargo Bank, N.A.,
successor-by-merger to Wachovia Bank, N.A.
ME1 ]0112780v.1
R=1L~ L-{ ` r~L
-.
McCARTER & ENGLISH~~,L~' o ' ~ j ,,, ~ i;~RY
By: Robert J. Hoelscher ~~~ ~; ~~,~
Christine L. Barba ZOI~ ~~'~ _9
Identification Nos. 26746, 20693~1~ ,_; ,;J;,~;~
Mellon Bank Center G 1,- ,~,;~ %~~~ ', ~~
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
WELLS FARGO BANK, NATIONAL
ASSOCIATION, successor-by-merger to
Wachovia Bank, National Association,
Attorneys for Plaintiff,
Wells Fargo Bank, National Association,
successor-by-merger to Wachovia Bank,
National Association
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff,
vs.
RAMA DEVELOPMENT, LLC,
CIVIL ACTION NO. 09-8098
Defendant.
NOTICE OF SHERIFF'S SALE OF REAL ESTATE
TO: Rama Development, LLC c/o Ramesh S. Rao, Sole Member, Registered Agent
4209 York Road 10 Evergreen Street
New Oxford, PA 17350 Jamaica Plain, MA 02130
Your Real Estate on Lisburn Road, Township of South Middleton, Cumberland County, PA,
Parcel ID No. 40-09-0533-014, is scheduled to be sold at Sheriffs Sale on September 8, 2010 at
10:00 a.m. at the Cumberland County Courthouse, 1 Courthouse Square, Carlisle, PA, to enforce
the court judgment of Wells Fargo Bank, National Association, successor-by-merger to
Wachovia Bank, National Association (the "Bank"), obtained by the Bank against you.
NOTICE OF OWNER'S RIGHTS
YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE.
To prevent this Sheriffs Sale, you must take immediate action:
ME 1 10112780v. l
+.
1. The sale will be cancelled if you pay to the Bank the amount of judgment plus costs, the back
payments, late charges, costs and reasonable attorney's fees due. To find out how much you must
pay, you may call: Robert J. Hoelscher, at (215) 979-3873.
2. You may be able to stop the sale by filing a petition asking the Court to strike or open the
judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale
for good cause.
3. You may also be able to stop the sale through other legal proceedings. YOU MAY NEED AN
ATTORNEY TO ASSERT YOUR RIGHTS. The sooner you contact an attorney, the more chance
you will have of stopping the sale. (See notice on next page to find out how to obtain an attorney.)
YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY, AND YOU HAVE
OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE.
1. If the Sheriff s Sale is not stopped, your property will be sold to the highest bidder. You may find
out the price bid by calling the Sheriff of Cumberland County, Pennsylvania at (717) 240-6100.
2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate
compared to the value of your property.
3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find
out if this has happened, you may call the Sheriff of Cumberland County, Pennsylvania at (717) 240-
6100.
4. If the amount due from the buyer is not paid to the Sheriff, you will remain the owner of the
property as if the sale never happened.
5. You have the right to remain in the property until the full amount is paid to the Sheriff and the
Sheriff gives a deed to the buyer. You do not have the right to remove the fixtures from the property
or to damage or destroy the same, and you could be held legally responsible if such removal or
damage occurs during your occupancy. At the time that the deed is delivered to the buyer, you must
vacate the premises and, should you fail to do so, the buyer may bring legal proceedings against you
in order to effect your eviction.
6. You may be entitled to a share of the money which was paid for your real estate. A schedule of
distribution of the money bid for your real estate will be filed by the Sheriff on or before thirty (30)
days from the date of the Sheriffs Sale. This schedule will state who will be receiving that money.
The money will be paid out in accordance with this schedule unless exceptions (reasons why the
proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the filing of the
schedule of distribution. The schedule of distribution is available for inspection by you at the
Sheriffs Office in Carlisle, Pennsylvania.
7. You may also have other rights and defenses, or ways of getting your real estate back, if you act
immediately after the sale.
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
ME 1 10112780v. l
THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET HELP.
Lawyer Referral Service
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
1-800-990-9108
717-249-3166
%l~/a~G
Robert J. Hoelscher v
Christine L. Barba
McCARTER & ENGLISH, LLP
Attorneys for Plaintiff
Wells Fargo Bank, National Association, successor-
by-merger to Wachovia Bank, National Association
1735 Market Street
Suite 700
Philadelphia, PA 19103
(215) 979-3800
ME 1 10112780v. l
McCARTER & ENGLISH, LLP
By: Robert J. Hoelscher
Christine L. Barba
Identification Nos. 26746, 206938
Mellon Bank Center
1735 Market Street
Suite 700
Philadelphia, PA 19103
215-979-3800
FILED-OFFICE
OF THE PROTHONOTARY
2010 Nov 15 PM 4" 01
CU PEP NSY?LVAN A COUNTY
Attorneys for Plaintiff,
Wells Fargo Bank, National Association,
successor-by-merger to Wachovia Bank,
National Association
WELLS FARGO BANK, NATIONAL COURT OF COMMON PLEAS
ASSOCIATION, successor-by-merger to CUMBERLAND COUNTY, PA
Wachovia Bank, National Association,
Plaintiff,
VS.
RAMA DEVELOPMENT, LLC,
Defendant. CIVIL ACTION NO. 09-8098
AFFIDAVIT OF SERVICE OF WRIT OF EXECUTION AND NOTICE OF SALE
Robert J. Hoelscher, being duly sworn according to law, deposes and says:
1. I am a member of the Bar of the Supreme Court of Pennsylvania and an attorney for
the Plaintiff, Wells Fargo Bank, N.A., successor by merger to Wachovia Bank, National
Association, in this case.
2. On November 4, 2010, I caused to be served true and correct copies of the writ of
execution and notice of sale pursuant to Rule 3129.2 of the Pennsylvania Rules of Civil
Procedure upon the registered agent for Ameri Metro, Inc., which is the apparent successor in
interest to RAMA Development, LLC with respect to the property on Lisburn Road, South
Middleton Township, Cumberland County, PA that is scheduled for the December 8, 2010
Cumberland County Sheriff's Sale.
ME 1 10850445v.1
3. Such service is in compliance with Rules 3112 (b)(2) and 430(a)(3) of the
Pennsylvania Rules of Civil Procedure.
4. Attached to this Affidavit and incorporated by reference is the Affidavit of Granville
Morris, a competent adult who made service on November 4, 2010.
Sworn to and subscribed
before me this/
a,V4 day of
November, 2010.
'4""a'y M%'-
Notary Public
c VA#*A,
GAB. P. WtA, Nowt' Public
CAY'Of *hkk P Mhila.
cow*
arch 29, 12
;ezye? 4z 4w-"-
Robert . Hoelscher
2
ME) 10850445v.1
Affidavit of Process Server
WELLS FARGO BANK, NA
VS RAMA DEVELOPMENT, LLC 09-8098
PLAINTIFF/PETITIONER
DEFENDANT/RESPONDENT
CASE NUMBER
I GRANVILLE MORRIS being first duly sworn, depose and say: that I am over the age of 18 years and
not a party to this action, and that within the boundaries of the state where service was effected, I was authorized by law to
perform said service.
Service: I served AMERI METRO, INC
NAME OF PERSON / ENTITY BEING SERVED
with (list documents)WRIT OF EXECUTION & NOTICE OF THE SALE OF REAL PROPERTY
by leaving with SALLY SANDERS
? Residence
PROCESS AGENT AUTHORIZED At
NAME
RELATIONSHIP
ADDRESS
CITY / STATE
® Business C/O INCORPORATING SERVICES 3500 S. DUPONT HWY DOVER, DE
On 11/4/10 AT2:20 PM
DATE TIME
Thereafter copies of the documents were mailed by prepaid, first class mail
CITY STATE
ZIP
DATE
Manner of Service:
® Personal: By personally delivering copies to the person being served.
? Substituted at Residence: By leaving copies at the dwelling house or usual place of abode of the person being
served with a member of the household over the age of 18 and explaining the general nature of the papers.
? Substituted at Business: By leaving, during office hours, copies at the office of the person/entity being served with
the person apparently in charge thereof.
? Posting: By posting copies in a conspicuous manner to the front door of the person/entity being served.
Non-Service: After due search, careful inquiry and diligent attempts at the address (es) listed above, I have been
unable to effect process upon the person/entity being served because of the following reason(s):
° Unknown at Address ? Moved, Left no Forwarding ? Service Cancelled by Litigant ? Unable to Serve in Timely Fashion
? Address Does Not Exist ? Other
Service Attempts: Service was attempted on: (1) (2)
DATE TIME DATE TIME
(3)
DATE TIME (4) DATE TIME (5) DATE TIME
AGE 35 SexF Race W Height5'6 Weight 140 HAIR BR
JjL__
SIGNATURE OF PROCESS SERVER
SUBSCRIBED AND SWORN to before me this 4TH day of NOVEMBER 12010.
OFFICIAL SEAL SIGNATURE OF NOTARY PUBLIC
KEVIN DUNN NOTARY PUBLIC for the state of DELAWARE
NOTARY PUBLIC-DELAWARE
MY M I I M E 11 3/10
N4TIr1N01 OSS(1RI4TI0N (1F PR(11:9:SSIr1NA1 PRf1RFRS SFRI/FRS