Loading...
HomeMy WebLinkAbout09-8211SUSQUEHANNA BANK, Plaintiff V. DONALD H. ERWIN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. CIVIL ACTION - LAW CONFESSION OF JUDGMENT Pursuant to the authority contained in the Guaranty, as defined in the Complaint filed in the above captioned case and evidenced by Exhibit B to said Complaint, we appear for Defendant, Donald H. Erwin and confess judgment against them in favor of Plaintiff, Susquehanna Bank, as follows: FIRST LOAN Principal: $7,853,875.11 Accrued Interest : $ 7,561.57 Total: $7,861,586.68 *along with interest accruing at the current per diem rate of $541.04, costs and reasonable attorney's fees until paid in full. SECOND LOAN Principal: $549,843.33 Accrued Interest: $ 572.14 Costs $ 100.00 Total: $550,515.47* *along with interest accruing at the current per diem rate of $40.93, costs and reasonable attorney's fees until paid in full. TOTAL: $8,412,102.15* *along with interest accruing at the current per diem rate of $581.97, costs and reasonable attorney's fees until paid in full (the "Indebtedness") McNEES WALLACE & NURICK LLC Date: November 25, 2009 By Clayton . Da idson PA Attorney I. . No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidson a,mwn.com Attorneys for Susquehanna Bank Clayton W. Davidson PA Attorney I.D. No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidsonna,mwn.com Attorneys for Plaintiff, Susquehanna Bank SUSQUEHANNA BANK, Plaintiff V. DONALD H. ERWIN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. : CIVIL ACTION -LAW COMPLAINT FOR CONFESSION OF JUDGMENT Plaintiff, Susquehanna Bank, by and through its undersigned counsel, hereby files this Complaint for Confession of Judgment pursuant to Pa.R.C.P. No. 2951(b) and in support thereof avers the following: Plaintiff, Susquehanna Bank (the "Bank"), successor in interest to Susquehanna Bank PA (the "Bank"), is a Pennsylvania banking institution doing business at 1570 Manheim Pike, Lancaster, Pennsylvania 17601. 2. Defendant, Donald H. Erwin ("Erwin"), is an adult individual residing at 1943 Monterey Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. On April 9, 2008, the Bank loaned Insite Development, LLC ("Insite") the sums of $7,900,000.00 (the "First Loan") and $500,000 (the "Second Loan") for a business purpose as evidenced by a loan agreement (the "Loan Agreement") to construct and furnish a hotel on the real property known and numbered as 4569 & 4535 Mount Zion Drive, Hampden Township, Cumberland County, Pennsylvania, tax parcel number 10-14-0839-023 (the "Real Property"). Attached hereto as Exhibit A and incorporated herein by reference is a true and correct copy of the Loan Agreement (less any applicable tax identification numbers). 4. On April 9, 2008, Erwin agreed to act as an unconditional surety for the payment and performance of the First Loan and the Second Loan as evidenced by a guaranty and suretyship agreement (the "Guaranty"). Attached hereto as Exhibit B and incorporated herein by reference is a true and correct copy of the Guaranty (less any applicable tax identification numbers). 5. From March 26, 2009 through August 19, 2009, over $1.4 million in mechanics liens were filed against the Real Property with this Court. 6. On September 9, 2009, the Bank provided written notice (the "Notice") to Insite and Erwin of their defaults by allowing over $1.4 million in mechanics liens (the "Defaults") to be filed against the Real Property and thirty (30) days to cure the Defaults. Attached hereto as Exhibit C and incorporated herein by reference is a true and correct copy of the Notice. 7. Insite and Erwin have failed to cure the Defaults within thirty (30) days and the mechanics liens still remain against the Real Property. 8. Erwin has defaulted under the Guaranty as a result of the Defaults under the Loan Agreement. 9. There is no further right to cure the Defaults under the Loan Agreement and/or the Guaranty. 10. The Bank has accelerated the entire indebtedness due and owing regarding the First Loan and Second Loan as a result of the Defaults. 11. The Guaranty provides that upon a default thereunder the Bank may confess judgment against Erwin for the entire principal balance due and owing thereunder along with accrued interest, costs of collection and suit, and reasonable attorney's fees for collection. 12. The total sums due and owing under the Guaranty as of November 23, 2009 are itemized as follows: FIRST LOAN Principal: $7,853,875.11 Accrued Interest : $ 7,561.57 Total: $7,861,586.68 *along with interest accruing at the current per diem rate of $541.04, costs and reasonable attorney's fees until paid in full. SECOND LOAN Principal: $549,843.33 Accrued Interest: $ 572.14 Costs $ 100.00 Total: $550,515.47* *along with interest accruing at the current per diem rate of $40.93, costs and reasonable attorney's fees until paid in full. TOTAL: $8,412,102.15* *along with interest accruing at the current per diem rate of $581.97, costs and reasonable attorney's fees until paid in full (the "Indebtedness") 13. All conditions precedent have been satisfied to allow the Bank to confess judgment for the Indebtedness against Erwin under the Guaranty. 14. The Bank is the holder of the Guaranty. 15, The Guaranty was executed and delivered in connection with a business transaction and judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 16. Judgment has not been confessed or entered under the Guaranty in any other jurisdiction. WHEREFORE, Plaintiff, Susquehanna Bank requests this Court to enter judgment by confession against Defendant, Donald H. Erwin, in the amount of $8,412,102.15 along with interest accruing at the per diem rate of $581.97 after November 23, 2009, costs and reasonable attorney's fees until paid in full. McNEES WALLACE & NURICK LLC Date: November 25, 2009 By Clayton W. D idson PA Attorney I.D. No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidson(4rawn.com Attorneys for Plaintiff, Susquehanna Bank VERIFICATION I,SArnes Q. 5f . Vic-Vff1. of Susquehanna Bank, verify that I am authorized to make this verification on behalf of Susquehanna Bank, and that the facts contained in the foregoing Complaint for Confession of Judgment are true and correct to the best of my knowledge, information and belief and that the same are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. ?x?a?,+ ? PU1-? -ZUU? -?` U2 10 PM SEI LOAN CENTER FAX N0. 240 313 1565 LOAN AGREEMENT P. 81 THIS LOAN AGREEMENT is executed and delivered this ?4' day of April, 2008, by and among: SUSQUEHANNA BAND PA, a Pennsylvania state chartered banking institution, maintaining a principal place of business at 1570 Manheim Pike, P 0. Box 3300, Lancaster, Pennsylvania 17604-3300 (hereinafter referred to as "Lender"); and INSITE DEVELOPMENT, LLC, a Pennsylvania limited liability company maintaining a place of business at 1943 Monterey Drive, Mechanicsburg, Pennsylvania X17050-8510 (hereinafter referred to as "Borrower"). The background of this Agreement is as follows: Borrower is the owner of certain tracts of land known and numbered as 4569 and 4535 Mount Zion Drive, Hampden Township, Cumberland County, Pennsylvania (the "Real Property"), on which Borrower intends to perform certain work and engage in construction in accordance with certain Plans and Specifications for the completion of a new one hundred three (103) room Comfort Suites Hotel (the "Improvements"), which Plans and Specifications have been or will be submitted to and approved by Lender. When approved, such Plans and Specifications shall, in each instance, become the "Plans and Specifications". Borrower has applied to Lender for a Seven Million Nine Hundred Thousand Dollar ($7,900,000.00) Construction Permanent Loan to complete the Improvements in accordance with the Plans and Specifications. This Loan shall hereinafter be referred to as the "Construction Permanent Loan". Borrower has also applied to Lender for a Five Hundred Fifty Thousand Dollar ($550,000.00) Term Loan to provide financing for furniture, fixtures and equipment for the hotel. This Loan shall hereinafter be referred to as the "Term Loan". Lender has agreed to make the Construction Permanent Loan Find the Term Loan upon the conditions set forth in Lender's Commitment Letter dated January 8, 2008 (the "Commitment Letter"), all as more fully set forth in this Loan Agreement and in the other documents which evidence the Loans. NOW, THEREFORE, in consideration of the mutual promises and undertakings of the parties as set forth herein, and with the intention of being legally bound hereby, the parties agree as follows, A'jj e , -2?^? .7 ,, c:1? PM SB1 LOAN CENTER FAX NC. 24!nj ?13 1585 SECTION i - DEFINITIONS F. ?2 The following definitions, when used in the background section above, and when used in this Loan Agreement, shall have the meaning set forth below: 1.1. "Affiliate" meatas any corporation, partnership, association, trust or other Person or business entity which is controlled by Borrower, for which purpose "controlled by" signifies the power to direct, or cause the direction of, management, investments, business practices and policies, whether through ownership of voting securities, by contract or otherwise. 1.2. "Bankruptcy Code" means the Federal Bankruptcy Code, 11 U.S.C. § 101 et. seq., as amended from time to time. 1.3. "Borrower" means Insite Development, LLC, a Pennsylvania limited liability company (the "Borrower"), its successors and assigns. 1.4. "Collateral Assignment of Agreements Affecting Real Estate" means the Collateral Assignment of Agreements Affecting Real Estate executed as of the date hereof between Borrower and Lender, together with consents executed by the contractors identified in Section 1.5 hereof.. I.S. "Construction Contracts" means those agreements between Borrower and the following prime contractors, for the construction of a new one hundred three (103) room Comfort Suites Hotel on land of Borrower located at 4569 and 4535 Mount Zion Drive, Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania. The prime contractors are listed on Exhibit "A" attached hereto and made a part hereof. 1.6. "Contamination" meads the uncontained presence of Hazardous Substances at the Premises, or arising from the Premises, including: (a) Hazardous Substances refined, produced, stored, handled, transferred, processed, transported, generated, manufactured, treated or disposed of in, on or about the Premises by Borrower or any predecessor in title to the Premises or prior owner of the Premises, by any present or prior lessee or sublessee of the Premises or by any transferee of or from Borrower, whether voluntarily or involuntarily, whether or not permitted pursuant to the terms of this Loan Agreement. (b) Any regulated substance (as that term is defined in any Environnnental Laws) at the Premises at any time and as described in Subparagraph (a) of this sectioyl. -2- P'JJ-2'-2CC2 FRI X2,20 FM SBI LOAN CENTER FAX NC. 240 213 15^5 83 (c) Any "Hazardous Waste" (as that term is defined in any Environmental Laws and in the Solid Waste Management Act, 35 P.S. § 6018.103 (Purdon's Supplement 1987)), at the Premises at any time and as described in Subparagraph (a) of this section. 1.7. "Debt Service" means the sum of all scheduled payments of principal and/or interest coming due on all borrowed debt within the period tested. 1.8. "Debt Service Coverage Ratio" means net income plus depreciation and amortization and interest divided by all Debt Service. 1.9. "Dollars and S" means lawful money of the United States of America in funds that are immediately available to, or for the account of, Lender. 1.10. "Environmental )taws" means all existing and future federal, state and local statutory and regulatory provisions concerning environmental compliance, envirotunental enforcement actions, regulatory approvals and compliance plans, permits and licenses for environmental, toxic, hazardous or waste substances including, but not limited to, the Solid Waste Management Act, 35 P. S, § 6018.101 et seq. (Purdon's Cumulative Supplement 1983-1984); the Pennsylvania Sewage Facilities Act, 35 P.S. § 750.1 et seq. (Purdon's 1977); the Comprehensive Environmental Response Compensation and Liability Act of 1990, 32 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and the Reauthorization Act of 1986, the Resource Conservation and Recovery Act of 1976, 32 U.S.C. § 6901 et seq., as amended by the Hazardous and Solid Waste Amendments of 1984, and including Subtitle I thereto with respect to regulation of underground storage tanks, 42 U.S.C. § 6991 et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., the Storage Tank and Spill Prevention Act, Act of July 6,1989, 35 P.S. § 6021.101 et seq., the Hazardous Sites Cleanup Act, Act of October 18, 1988, 35 P.S. § 6020.101 et seq. and the Clean Streams Law, 35 P.S. § 691.1 et seq. Environmental Laws also means and includes all regulations, orders, directives, ordinances, roles, guidelines and investigations promulgated pursuant to any of the laws or statutes referred to in this paragraph, and any other similar or successor federal, state or local law, to the extent not determined as invalid pursuant to a final, unappealable determination by a court of competent jurisdiction. 1.11. "Event of Default" means each occurrence or event specified in Section 10 of this Loan Agreement. 1.12. "GAAP" means generally accepted accounting principles and practices applied on a consistent basis in accordance with, among other standards, applicable Statements of Financial Accounting Standards promulgated by the Financial Accounting Standards Board, other than changes in application in which Lender and Borrower's independent certified public accountant concur. -3- AUG-2'-2009 FRi 02 20 PM SBI LOAN CENTER FAX NO, 24,1 2112 15":35 r, iS 4 1,13. "Hazardous Substances" means any asbestos or any material containing asbestos, any hazardous materials, hazardous wastes, hazardous or toxic pollutants or effluent, any hazardous materials, any flammable substance, any flammable explosive, waste oil, any sludge (whether or not in solid form), any radioactive material, and any other hazardous substwices defined by any Environmental Laws. Hazardous Substances also means and includes leaching of pollutants from any garbage dump, landfill or other waste site (whether or not into underground soil, rock strata or water supplies), any leak, release or dispersal of petroleum or a Hazardous Substance from any underground storage t,,uzk, whether defined within the scope of any Environmental Law as a "regulated substance". 1.14 "Individual Surety" means Donald H. Erwin, his heirs and assigns. 1.15. "Lender" means Susquehanna Bank PA, a Pennsylvania state chartered banking institution, maintaining a mailing address of 1570 Manheim Pike, P.O. Box 3300, Lancaster, Pennsylvania 17604-3300. 1.16. "Loan Agreement" means this Loan Agreement, and any future written amendments to this Loan Agreement that are signed by Borrower and Lender. 1.17. "Loan Documents" means, individually and collectively, this Loan Agreement, the Notes, Mortgages, Suretyship Agreements from the Sureties, Security Agreement, Collateral Assignment of Agreements Affecting Real Estate and all other existing and future agreements, pledges, instruments, documents, assignments, leases and guarantees and contracts (including amendments to such documents) delivered by or on behalf of Borrower to Lender in connection with the Loan described herein, or in connection with this Loan Agreement. 1.18. "Loans" mean the two (2) credit facilities described herein being the Construction Permanent Loan and the Term Loan. 1.19. "Management Company" means Vista Host, Inc., who shall manage the hotel under a contract between Borrower, or Borrower's Operating Entity, in connection with the management of the hotel on the Project. 1.20. "Mortgages" mean the Mortgages dated the date hereof and described in Section 2.3 hereof encumbering the Premises. 1.21. "Ninety (90) Day LIBOR Rate" means the floating rate of interest to be adjusted on the second business day of every week during the term of the Loan which is based upon the ninety (90) day London Interbank Offered Rate as published from time to time in the Wail Street Journal, as of the first business day of each week, or such other rate as Lender may determine in accordance with the exercise of its reasonable judgment to approximate that ninety (90) day London Interbank Offered Rate if the same is no longer maintained or published. -4- AUG-2"-20010 FRt 02:20 PM SEI I.OAN CENTER FAX NO. 24^ 313 1585 P. 85 trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. 1.27. "Premises" means the Real Property situate at 4569 and 4535 Mount Zion Drive, Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania. 1.28. "Project" means the development and construction of a one hundred three (103) room Comfort Suites Hotel and all related improvements on the Premises. 1.29. "Sureties" means the Individual Surety and the Operating Entity Surety. 1.30. "Suretyship" means the Suretyship Agreements dated hereof from the Sureties to Lender. 1.31, "United States Treasury Rate" means the rate of interest that is designated from time to time and published by the Wali Street Journal as either the three (3) month or nine (9) month United States Treasury Rate and shell be used by Lender as a reference rate with respect to the different interest rates charged to borrowers. SECTION 2 - AMOUNT AND TERMS OF LOANS; LOAN PROCEEDS The Loans consist of the following: 2.1. Construction/permanent Loan. Lender has agreed to make available a Seven Million Nine Hundred Thousand Dollar ($7,900,000.00) Open-End Construction /Permanent Mortgage Loan to be used to construct the Project and its appurtenances. Advances shall be made in accordance with the terms of this Loan Agreement. (a) Interest Rate. For the 'first twenty-four (24) months of the term, the Interest Rate shall be the Ninety (90) Day LIBOR Rate plus two and two-tenths percent (2.2%). For the balance of the term of the Loan, until the Maturity Date, the Interest Rate shall be either the three (3) year United States Treasury Rate plus three percent (3%) or the five (5) year United States Treasury Rate plus three percent (3%) as Borrower may elect. In the event that Borrower selects the three (3) year United States Treasury Rate at The expiration of the three (3) years of fixed rate interest, the rate shall revert to the Ninety (90) Day LIBOR Rate plus two and two-tenths percent (2.2%). (b) Payments. Payments of principal and interest shall be made as follows (i) During the first twenty-four (24) months of the term of this Loan, monthly payments of interest only shall be made on the outstanding principal balance of the Loan. -6- AUG-2l-2009 FR` 02:21 Pl SBI LOAN CENTER FAX NO. 240 313 1565 P. 86 (ii) Thereafter, and for the next thirty-six (36) or sixty (60) months, depending on the interest rate selected by Borrower, consecutive monthly payments of principal and interest at the above-referenced fixed rate shall be paid to amortize die Loan over a term of three hundred (300) months. Commencing with the thirty-seventh (37`x') or sixty-first (61 S') month of the term of this Loan, as the case may be, and thereafter, the payments of principal and interest shall be recalculated based on the new rate of interest then in effect to amortize the remaining balance over the remaining amortization term of the Loan. The entire principal and unpaid balance shall be paid at the Maturity Date. (c) Commitment Fee. A commitment fee of Thirty-Nine Thousand Five Hundred Dollars ($39,500.00) shall be paid by Borrower to Lender. (d) Term. The term of the Loan will be for a tern of seven (7) years from the date hereof (the "Maturity Date"). (e) Inspection Fees. All inspection fees and costs or survey fees and costs required under the terms of the Loan Documents or required by any environmental law shall be paid by Borrower. (f) Completion of Construction. Lender shall not be obligated to pay any final request for draw under the terms of this Loan Agreement until Lender is provided with a Certificate of Use and Occupancy permit issued by Hampden Township, Cumberland County, Pennsylvania. (g) Advances under the Construction Permanent Loan shall be made in accordance with the provisions of Section 6.3 of dais Agreement. 2.2. Term Loan. Lender has agreed to make available a Five Hundred Fifty Thousand Dollar ($550,000.00) Term Loam to be used to acquire furniture, fixtures and equipment for the hotel. Advances under this Term Loan shall be made in accordance with the terms of this Loan Agreement, (a) Interest Rate. For the first twenty-four (24) months of the term, the Interest Rate shall be the Ninety (90) Day LIBOR Rate plus two and four-tenths percent (2.4%). For the balance of the term of the Loan, until the Term Loan Maturity Date, the Interest Rate shall be either the three (3) year United States Treasury Rate plus three percent (3%) or the five (5) year United States Treasury Rate plus three percent (3%) as Borrower may elect. In the event that Borrower selects the three (3) year United States Treasury Rate at the expiration of the three (3) years of fixed rate interest, the rate shall revert to the Ninety (90) Day LIBOR Rate plus two and two-tenths percent (2.2%). (b) Payments. Payments of principal and interest shall be made as follows: -7- A1J'G-2 ? -2009 ,- P i 02:21 Pr SB I LOAN CENTER FAX N0. 2 4 1 2"1 122 15-65 P. 87 (i) During the first twenty-four (24) months of the term of this Loan, monthly payments of interest only shall be made on the outstanding principal balance of the Loan. (ii) Thereafter, and for the next thirty-six (36) or sixty (60) months, depending on the interest rate selected by Borrower, consecutive monthly payments of principal and interest at the above-referenced fixed rate shall be paid to amortize the Loan over a term of three hundred (300) months. Commencing with the thirty-seventh (37`h) or sixty-first (61 ") month of the term of this Loan, as the case may be, and thereafter; the payments of principal and interest shall be recalculated based on the new rate of interest then in effect to amortize the remaining balance over the remaining amortization term of the Loan. At the Term Loan Maturity Date, the entire unpaid principal balance and any accrued interest shall be paid in frill without demand. (c) Commitment .Fee. A commitment fee of Two Thousand Seven Hundred Fifty Dollars ($2,750.00) shall be paid by Borrower to Lender. (d) Term. The term of the Loan will be for a term of seven (7) years from the date hereof (the "Tenn Loan Maturity Date"), 2.3. Collateral. The collateral for the Permanent Construction Loan described in Section 2.1 shall consist of the following: (a) A Suretyship Agreement from the Individual Surety and the Operating Entity Surety. (b) From Borrower, a comprehensive Security Agreement covering all business assets of Borrower used in connection with the Project including all proceeds therefrom and replacements therefor including, but not limited to, equipment, fixtures, cash, accounts receivable, contract rights and general intangibles, assignment of the Management Agreement under which the hotel shall be operated and all proceeds thereof and substitutions therefor. (c) From Borrower, a first lien open-end mortgage in an original principal amount of Seven Million Nine Hundred Thousand Dollars ($7,900,000.00) to constitute a first mortgage against the Premises. (d) The Assignment of Leases and Rents. (e) The Collateral Assignment of Agreements Affecting Real Estate. (-0 All other security interests and collateral described herein or in the Loan Documents. -8- AUG-2 i -2009 7R i 02:21 Pty SB I LOAN CENTER FAX NC. 24^ 213 1585 P. .°S8 (:ollateral. The collateral for the Term Loan described in Section 2.2 shall consist of the following: (a) A Suretyship Agreement from the Individual Surety and the Operating Entity Surety. (b) From Borrower, a comprehensive Security Agreement covering all business assets of Borrower used in connection with the Project including all proceeds therefrom and replacements therefor including, but not limited to, equipment, fixtures, cash, accounts receivable, contract rights and general intangibles, assignment of the Management Agreement under which the hotel shall be operated and all proceeds thereof and substitutions therefor. (c) From Borrower, a second lien open-end mortgage in an original principal amount of Five Hundred Fifty Thousand Dollars ($550,000.00) to constitute a second mortgage against the Premises. (d) The Assignment of Leases and Rents. (e) The Collateral Assignment of Agreements Affecting Real Estate. (f) All other security interests and collateral described herein or in the Loan Documents. (g) Advances under the Term Loan shall be made in accordance with the provisions of Section 7 hereof. 2.4. PrebaYment Premiums. The Construction/Permanent Loan and the Term Loan shall be subject to a Prepayment Premium. In planning for the advancing of the proceeds of the Construction/Permanent Loan, and in plarming its investment portfolio, Lender is relying upon this Loan and the interest to be derived therefrom and some assured period of interest accrued as a bargained-for-consideration in this transaction. In the event any portion of the principal in excess of the regularly scheduled amortization payments, or the entire balance of the Loan is paid prior to the Maturity Date or the Term Loan Maturity Date, as the case may be, such payments shall be accompanied by all accrued interest and costs and, in addition, a Prepayment Premium of two percent (2%) of the then outstanding principal balance of the Loan. The Prepayment Premiums is a bargained-for-consideration and not a ligtddated damage provision. For the purpose hereof, the Premium Period shall continence on the date of the Loan closing and shall continue for a period of seventy-two (72) successive months thereafter. No partial prepayment shall postpone or interrupt payments of future installments of principal and interest, which shall continue to be due and payable at the time and in the amount set forth herein until payment in full. Notwithstanding the foregoing, the Prepayment Premium described herein shall not be applicable in the event the Loan is refinanced by Lender or is prepaid with internally generated funds of Borrower. -9- AUG-21-2009 02:22 Ff SB I'LOAN CENTER FAX NO. 26^ 2 12 1556 P. 69 SECTION 3 - NECESSARY ACTIONS; PRE-CONDITIONS TO LOAN 3.1. Additional Documents. Borrower and Surety shall promptly, upon request of Lender, deliver to Lender, or cause to be delivered to Lender, the following: (a) Subject to reasonable advance notice and requirement for such disclosure, at such times during the term of the Loan described herein as Lender may request, Borrower shall execute and deliver to Lender a certificate, in form and substance satisfactory to Lender, executed by Borrower and dated the date of execution of such certification, certifying that the representations and warranties contained in this Loan Agreement and any representations and warranties contained in the Loan Documents are true and correct as of the date of this Loan Agreement and the date of such certification, as though made on and as of such date, and no event has occtured, nor is any event continuing, which would result from the execution and delivery of this Loan Agreement and the Loan Documents, which constitutes an event of default. (b) Evidence acceptable to Lender demonstrating the existence of the various types of insurance coverage required under the Mortgage. (c) Lender shall have received from Borrower all of the documents, warranties and requirements set forth in this Loan Agreement including, but not limited to, the following: (i) A true and correct copy of the Construction Contract, the construction to be .for a contract price and not on a time and material basis; (ii) A fully executed Stipulation against the filing of mechanics' liens and accompanying bond, in a form satisfactory to Lender, which Stipulation shall be recorded prior to the commencement of any construction on the Project; (iii) Proof of adequate builders' risk, workers' compensation and general liability insurance coverage for the Contractor; (iv) An Assignment of the Construction Contract and all permits and authorizations in a form satisfactory to Lender; (v) Copies of all issued building, sewer, highway occupancy, construction, earth disturbance, environmental and other permits, including zoning permits and authorizations needed or required to construct and complete the Project; (vi) An Assignment of all such building, sewer, construction, earth disturbance and environmental permits and all other zoning permits and authorizations needed or required to construct the Project; -10- A?JG-2' -200? F" ! 02 22 PM SB I LOAN CENTER FAX NO. 24^ ?' ? 1585 P. 20 (vii) An Assignment of the Management Agreement with the Operating Company under which the hotel will be operated as part of the Project; (viii) Proof of the availability of all utilities necessary to construct and operate the Project; Project; (ix) Copies ol"all recorded land development and subdivision plans for the (x) Copies of all specifications for construction of the Project; and (xi) Copies of the fully executed and Lender approved Lease for the Project and the Management Agreement for the project. (d) A policy of mortgage title insurance from Susquehanna Real Estate Settlement Services, agent for Land America Lawyers Title, insuring the lien of the Mortgage described herein on the Premises and all improvements, free and clear of all liens and other objections of title (including possible unfiled mechanics' Liens). Such title insurance shall contain endorsements 100, 300 and 710, at Borrower's sole cost, together with such other endorsements as Lender may reasonably require in order to assure that the Mortgage is a fully insured lien upon the Premises. (e) Lender shall have received from Borrower all of the documents, warranties and requirements set forth in this Loan Agreement. (0 An opinion from Borrower's and Surety's Counsel, in a form satisfactory to Lender and its counsel, that Borrower is a Pennsylvania limited liability company validly existing and in good standing under the laws of the Commonwealth of Pennsylvania; that Borrower has the requisite power and authority to: (i) own its own property and assets and to carry out its business; (ii) to execute and deliver the Loan Documents to which Borrower is a party; and (iii) to perform its obligations under those agreements and documents; that the execution, delivery and performance by Borrower and Surety, as the case may be, of the Loan Documents to which Borrower or Surety is a party have been duly authorized by all appropriate action or other action required on behalf of Borrower; that the execution and delivery of the Loan Documents to which Borrower is a party and the performance by Borrower of its obligations under the Loan Documents do not conflict with or violate any provision of. Borrower's Certificate of Organization or Operating Agreement and, to counsel's knowledge, do not conflict with or result in any breach of any law, rule or regulation of any order of any court or administrative agency applicable to Borrower; that each of the Loan Documents to which Borrower or Surety is a party constitutes the legal, valid and binding obligations of Borrower or Surety, as the case may be, enforceable in accordance with its terms; that the Loan Agreement, upon the due execution and filing of appropriate financing statements in the Office of the Secretary of the Commonwealth and creates in favor of Lender a valid, perfected PISJ-2; -2CC^ FRI C2:23 PM SBI LOAN CENTER FAX NC. 24!n 313 1555 P. 21 security interest (to the extent Division 9 of the Uniform Commercial Code is applicable thereto) in the personal property, intangibles, permits and franchise agreements as collateral security for the payment, in the case of proceeds (or expressly included within) such collateral, to the limitations set forth in Division 9; and that the Suretyship Agreement executed by Surety has been validly executed and delivered on behalf of the Surety. (g) Lender shall have received from Borrower all of the collateral described in Section 2.3 hereof or the Loan Documents. (h) Borrower shall have established with Lender a reserve account for replacement of furniture, fixtures and equipment to be funded on a monthly basis with tluee percent (3%) of Borrower's gross monthly receipts. (i) Borrower shall have established with Lender its primary depository account. 6) Lender shall have received from Borrower, and approved, an independent plan and cost review of the hotel operation. (k) Borrower shall have submitted to Lender and secured Lender's approval of the Hotel Management Agreement with Vista Host, Inc. (1) Borrower shall have received and Lender shall have approved an appraisal of the Project performed by an appraiser satisfactory to Lender indicating that the Project has appraised at a Loan to value ratio not to exceed seventy percent (70%) of the as completed value or sixty-three percent (63%) of the as stabilized value. (m) Borrower having obtained a certification that the Real Property is not located in a flood hazard zone. (n) Borrower having submitted and Lender having approved a Phase I Environmental Site Assessment of the Real Property. SECTION 4 - REPRESENTATIONS AND WARRANTIES As a material and integral inducement to Lender to advance the Loan and to execute the Loan Agreement and Loan Documents, Borrower represents to Lender and warrants to Lender as follows: 4.1. Compliance With Laws and Other Aereements. Borrower is in material compliance with all laws, riles, regulations, judgments, decrees, orders, agreements and requirements which affect in any material way any Borrower, or its assets, or the operation of Borrower's business and that Borrower has not received and has no knowledge of any order, notice -12- PUJ-2?-2C?'° FRI 02:23 PM SBI LOAN CENTER FAX NC. 24n ?1? 1585 P. 82 of goveriunental investigation or of any violation or claim of violation of any law, regulation, judgment, decree, order, agreement or other governmental requirement. 4.2. No Conflict; Governmental Approvals. The execution, delivery and performance of this Loan Agreement and the Loan. described herein will not conflict with, violate, constitute a default under nor result in a breach of any provision of any applicable law, rule, regulation, judgment, decree, order, instrument or other agreement to which Borrower is a party. No authorization, perinit, consent or approval of or any other action by, and no filing, registration or declaration with any governmental authority or regulatory body is required to be obtained or made by Borrower from the due execution, delivery and performance of this Loan Agreement or the Loan described herein or any of the Loan Documents, except such as have been duly obtained or made prior to the date hereof and which are in full force and effect as of the date hereof. Borrower has the full and lawful power to: (a) Enter into this Loan Agreement, to execute and deliver all of the Loan Documents and to perform all of its obligations in accordance with the terms thereof, (b) Create the security interest and grant to Lender the Mortgage on the Premises described herein; and (c) Take all actions necessary for the Loan Documents to constitute the valid obligations of each of the parties thereto, legally binding against Borrower and the property of Borrower and enforceable against Borrower in accordance with the respective terms of the Loan Documents. 4.3. Financial Statements. (a) All financial statements, statements of profit and loss and other financial information of Surety, and for Borrower, and the schedules of and notes to such statements (collectively the "Financial Statements") which have been provided to Lender by Borrower in connection with the application for the Loan and the Commitment Letter, fully, completely and accurately represent the business and financial condition of the Surety and Borrower as of the dates thereof. (b) There have been no material changes (adverse or otherwise) in the financial condition of Surety or Borrower from the date of the financial statements to the date hereof. (c) All potential losses or contingent losses are accrued, reflected or reserved against or otherwise fully disclosed in the Financial Statements or schedules thereto. (d) The financial information provided to Lender (whether by Surety or by persons acting for or on behalf of the Surety) in connection with the application for the Loan are - 13 - R'? J-2 ; -233? R C2 : 23 PM SB 1 1-OAN CENTER FH NC. 243 213 156 P. 93 accurate, complete and correct and fairly reflect the financial condition of Borrower and Surety, as the case may be, giving effect to the transactions contemplated by the Loan Documents. (e) That those portions of the Financial Statements consisting of projected statements of income have been prepared on the basis of the assumptions stated therein (which assumptions are believed by Borrower and Surety to be fair in light of the current business conditions) are reasonable and represent Borrower's and Surety's best estimate as of the date hereof of Borrower's future financial performance. (0 Surety has no indebtedness other than as shown on the financial statements. (g) Surety has no material investment (as such term is defined under GAAP), whether by stock purchase, capital contribution, loan, advance, purchase of property or otherwise, in any Person other than as shown in the Financial Statements. 4.4. Tax Returns. Surety and Borrower has filed all federal, state and local tax returns and other tax reports that Surety or Borrower is required by law to file and have paid or made adequate provision for the payment of all income, property and other taxes, including taxes of all employees, withheld or which have been accrued or which have become due pursuant to such returns or otherwise. Borrower has made adequate provision for all current taxes. No objection to any return or claim for additional taxes is being asserted which, if sustained or allowed, would have a material adverse effect on the financial condition or the business of Borrower or Surety. 4.5. Litigation. There are no legal, equitable or administrative proceedings before any federal, state, county or municipal court or board or other governmental or administrative agency pending, or to the knowledge of Borrower threatened, which involve or which may involve any material risk or any material judgment or liability not fully covered by insurance, or which may otherwise result in any material adverse change or impairment of the business or the assets of Borrower or Surety, or in the condition, financial or otherwise, of Borrower or Surety. 4.6. No Legal Bar. Borrower is not bound by any contract, indenture, agreement or other instrument nor is Borrower subject to any provision or restriction which adversely affects the respective business or conditions, financial or otherwise, of Borrower nor is Borrower in default under any provision of any material contract, indenture, lease, loan agreement or other instrument by which Borrower is a party or is bound nor is Borrower in default under any provision of any federal or state law, ordinance, governmental order, rule or regulation. The representations and warranties of Borrower shall survive the Loan closing and shall continue in full force and effect until payment and satisfaction in full of all obligations owed to Lender under each of the Loan Documents. -14- AUG-27-2009 "Pi 02:24 PI" SB1 LOAN CENTER FAX NO, 2410 2131 1565 P. 94 4.7. Authorizations and Permits. Borrower has obtained all permits and authorizations required to construct the Project. SECTION 5 - AFFIRMATIVE COVENANTS Borrower agrees with Lender that, until the satisfaction and discharge in full of all Obligations: 5.1. Representations, Warranties. The representations and warranties contained in Section 4 of this Loan Agreement shall be true, complete and accurate except to the extent that facts upon which such representations and warranties are based may change in the ordinary course of business by transactions permitted or contemplated by this Loan Agreement. 5.2. Environmental Law Compliance. (a) Borrower represents and warrants that it has not and other than as disclosed by Borrower to Lender prior to the date hereof (with respect to any condition disclosed by Borrower and accepted by Lender in any environmental assessment of the Premises), to the best of its knowledge after investigation by Borrower, no prior operator, owner, tenant or party in possession of the Premises has: (1) Used the Premises to refine, produce, store, handle, transfer, process, transport, generate, manufacture, treat or dispose of Hazardous Substances in violation of any Environmental Laws; (ii) Used the Premises in such a manner as to produce or cause Contamination; and (iii) Received any administrative order, summons, notice of investigation (whether or not in the form of an "on-site" notice), administrative consent order, notice of imposition of any Environmental Law lien, citation or other oral or written communication from any agency having jurisdiction over the administration of Environmental Laws concerning any violations of, action proposed under or proceedings pursuant to any Environmental Laws (including, without limitation, any notice as to the presence of any Hazardous Substances on the Premises), the terms of which order, notice, citation or communication have not been fully satisfied. (b) Borrower covenants that it will, at all times, keep the Premises free of all Hazardous Substances which might or which will cause Contamination and that it will use the Premises at all times in such manner as to prevent the release of any Hazardous Substance from the Premises, whether or not such release might or will cause Contamination. -15- R??G-2"-200? FR,' 02:24 PM SBI LOAN CENTER FAX NO. 240 2'2 1555 P. 95 (c) Borrower covenants that it will at all times keep the Premises free of and will cause the Premises to be released from all orders, notices, citations, notice letters and any liens imposed against the Premises and ?rry other Person pursuant to any Environmental Laws. (d) Borrower specifically represents, warrants and covenants that it will: (i) Immediately notify Lender in writing of any actual or threatened Environmental Investigation, noticeletter, inquiry, search, enforcement action or cleanup proceeding instituted by any Person with respe%t to any Environmental Law; (ii) Immediately in writing cause Lender and each Person that is entitled to notice under any Environmental La' of any release, potential release, probable release or asserted release of any Hazardous Substanei or any Contamination affecting Borrower or the Premises; (iii) Comply with and cause compliance with any environmental investigation, inquiry, notice letter; search, enforcement action or cleanup proceeding instituted pursuant to any Envirorunental Lawagai.nst Borrower, the Premises or naming Borrower as a party; and (iv) If reg4ired under the terms of the Mortgages, immediately and without delay after a written request from; Lender, commence an environmental records analysis, site investigation and due diligence search of federal, state and local records to determine compliance by Borrower and the Premises with all! Environmental Laws. 5.3. Compliance With Applicable Laws. Borrower shall comply, at all times and in all material respects, with the requirements of all Environmental Laws and with all other applicable laws, rules, regulations and orders of any governmental authority, a breach of which would materially or adversely affect the business or credit of Borrower, except where contested in good faith and by proper proceedings. 5.4. Maintenance of Existence, Conduct of Business. Borrower will preserve and maintain all of its material operating; license rights, privileges and franchises necessary in the normal conduct of its business and/or for the operation of the Premises. 5.5. Financial and Other Statements. Borrower and Surety shall: (a) Within one hundred twenty (120) days after the close of each fiscal year, furnish Lender with a financial statement of Borrower, prepared by a certified public accountant acceptable to Lender, and in accordance with GAAP, containing a balance sheet, income statement, statement of profit and loss, a statement of changes in financial condition and schedules and notes applicable thereto and containing a compiled opinion of the certified public accountant having prepared such statement. -16- AUG-2' -2009 PR" 02:24 Pf SB I LOAN CENTER FAX NO. 240 3'13 1565 °. 96 (b) Provide Lender with copies of their state, federal and local income tax returns including all supporting schedules no later than April 15Th of each year during the term of the Loans provided that in any year in which an extension to the filing of such income tax returns has been timely filed, the returns shall be submitted to Lender within thirty (30) days of the filing of the extended returns. (c) Provide Lender with monthly internally generated operating reports of the hotel operation commencing with the first month following the issuance of a Certificate oi'Use and Occupancy to Borrower. 5.6. Financial Covenants. During the term of the Loan described in this Loan Agreement, Borrower agrees that it shall maintain the following financial covenants and ratios: (a) Maintain its primary time, investment and demand deposit accounts with Lender; and (b) Commencing with the first month following the issuance of a Certificate of Use and Occupancy to Borrower, Borrower shall maintain a debt service coverage ratio, to be measured at the end of each twelve (12) month period thereafter, as follows (i) for the first twelve (12) months, the ratio shall be 1.15 to 1.00; (ii) For the second twelve (12) months, the ratio shall be 1.25 to 1.00; and (iii) For the remaining term of the Loan, the ratio shall be 1.30 to 1.00. 5.7. Compliance. Borrower will: (a) Comply in all material respects with the regulations and orders of all governmental authorities with regard to the ownership and occupancy of the Premises by Borrower and the construction of improvements to the Premises as described herein. (b) Give immediate notice to Lender if Borrower becomes aware of the occurrence of any Event of Default or of any fact, condition or event which (with the giving of notice or the passage or lapse of time, or both) would be an Event of Default or of the failure of Borrower to observe or perform any of the conditions or covenants to be observed or performed by Borrower under this Loan Agreement or any of the other Loan Documents. 5.8. Litigation. Borrower will promptly and without delay provide directly to Lender notice, in writing, of all material litigation and of all material proceedings before any governmental or regulatory agencies affecting Borrower or the Premises. Borrower will give notice of all litigation -17- PUG-21-2009 FRI 02:25 PM SBI LOAN CENTER FAX NO. 240 312 1555 P. 97 or proceedings instituted by any bank, lending institution or party extending credit against Borrower or the Premises. 5.9. Violations. Borrower will give notice in writing to Lender of the occurrence of any reported violation of any permit to construct or operate the Project or of Environmental Law and/or of any litigation, labor dispute or goverrunental proceeding or investigation affecting Borrower and/or the Premises which, if resolved other than in favor of any such party and not adequately covered by insurance, would have a material adverse affect on the financial condition, business or operations of Borrower and/or the Premises. 5.10. Liabilities. Borrower will pay, when due, all taxes, assessments and charges assessed upon the Premises or against Borrower or of any property of Borrower which Borrower is required to withhold and pay over, except where contested in proper proceedings instituted in good faith and where adequate reserves have been set aside. 5.11. Access to Books and Inspection. (a) Upon reasonable request by Lender, Borrower shall give any reasonable representative of Lender access at the Premises or any other place of business of Borrower during normal business hours and permit such representative to examine, copy or make excerpts from any and all books, records and documents in the possession of Borrower or relating to its affairs and to inspect the Premises and any of the properties of Borrower. (b) Borrower authorizes Lender to contact all governmental authorities with jurisdiction over the Premises to inquire as to and determine the status of building, occupancy, fire, zoning and Safety Code Compliance of the Premises and to investigate any pending or threatened building, occupancy, safety, health, fire, zoning or other similar code violation of or pertaining to the Premises. 5.12. Taxes and Claims. Borrower shall pay and discharge all taxes, assessments and govennmental charges or levies imposed upon any of its tangible or intangible assets (including, without limitation, the Premises) upon Borrower or the Premises or upon its income or profits or upon any property belonging to it before failure to do so results in civil or criminal penalties or promptly, upon receipt of any notice of deficiency in respect of any of the foregoing and all material claims which, if unpaid, night become a later charge upon the Premises or other property of Borrower; provided, however, that Borrower shall not be required to pay any tax, assessment, charge, levy or claim, the payment of which is being contested in good faith and by proper proceedings. 5.13. Indemnification. Borrower shall protect, defend, indemnify and save harmless Lender from and against any and all liabilities, damages, claims, suits, liens and judgments of whatever nature including, but not limited to, claims under any Environmental Law, claims for - 18- AuG-2'-2QC2 FR' C2:25 FM SBI LOAN CENTER FAX NO. 246 212 1555 r. 98 contribution and/or indemnification for injuries to or death of any Person or Persons and for damage to the property of any Person or Persons caused by, in connection with or arising out of any activities undertaken pursuant to the Loan and the Loan Documents, other than the willful misconduct or gross negligence of Lender. The obligation of Borrower to protect, defend, indemnify and save harmless as set forth in this subsection shall include any and all attorneys' fees incurred by Lender in the defense and handling of such suit, demand, judgment, lien and claim and shall include all reasonable attomeys' fees and investigation expenses incurred by Lender in enforcing or obtaining compliance with the provisions of this Agreement. Borrower further agrees to protect, defend, indemnify and save harmless Lender from and against any claims or liabilities for compensation arising under the Workmens' Compensation Act of the Commonwealth of Pennsylvania arising out of injuries sustained by any employees of Borrower or of any licensee or subcontractor of Borrower. The obligations of this subsection shall continue in full force, effect and application, notwithstanding prepayment or payment of the Loan, until the expiration of all applicable statutes of limitations in respect of indemnification. SECTION 6 - PROVISIONS RELATING TO CONSTRUCTION 6.1. Within thirty (30) days of the closing of the Loan, Borrower shall commence the construction, or cause the same to be commenced, according to the Plans and Specifications, promptly after signing this Agreement and shall thereafter proceed diligently, employing sufficient workmen and supplying sufficient materials so that the Improvements shall be fully completed and ready for their intended use and occupancy no later than April 1, 2009 (the "Completion Date"). 6.2. Borrower further agrees that: (a) The construction shall be performed materially in accordance with the Plans and Specifications, all applicable statutes, laws and ordinances and the requirements of all governmental and quasi -govenmental authorities having jurisdiction over the construction and/or the Real Property in and for the locality in which the Real Property is situate. (b) The Improvements, when erected, will be wholly on the Real Property within applicable building restriction lines and will not violate applicable use or other restrictions, whether established in prior conveyances, zoning ordinances, regulations or elsewhere. If requested by Lender, Borrower will furnish to Lender a foundation survey by a licensed surveyor or engineer showing that the construction of such foundation for the Improvements is within the Real Property encumbered by the Mortgage and free from any such violations, as aforesaid, and that there are no encroachments by or on said Real Property. If any such foundation is not entirely within the boundaries of the Real Property encumbered by the Mortgage, Borrower shall promptly: (i) Obtain such executed deed or corrective deed as is necessary in order to convey to Borrower such land as will result in the foundation being completely located on land owned by Borrower; - 19- AUG-2?-2Cj2 SRI Je 25 PM SBI LOAN CENTER FAX NO. 24C 313 1555 P. 2? (ii) Execute, acknowledge and deliver to Lender a recordable modification of the Mortgage which results in the foundation being completely encumbered by the Mor rgage; and (iii) Cause Borrower's title insurer to endorse Lender's policy of title insurance insuring the Mortgage as a first lien on all of the Land on which the foundation lies. (c) No material amendment shall be made to any Plans and Specifications without the written approval of Lender or any governmental authority having jurisdiction. (d) Immediately after receiving notice to do so from Lender or any governmental authority having jurisdiction and authority over the Real Property, Borrower will remove from the Real Property all materials on all portions of such Real Property which Lender and the governmental authority may condemn as failing in any substantial way to conform to the Plans and Specifications or applicable laws and will make good all portions of the construction damage by any such removal. (e) Borrower will provide to Lender such facilities as are commonly made available by responsible general contractors for the inspection of the Real Property and the construction of the Improvements thereon and shall afford full and free access to all plans, drawings and records with respect to construction. (f) Lender shall retain the services of an engineer or inspector (the "Lender's Inspector") for the property whose duties shall be to require that the Improvements are constructed in accordance with the Plans and Specifications. Although Lender and/or Lender's Inspector may inspect and approve the Plans and Specifications, cost estimates, actual construction and other matters pertaining to the construction of Improvements or the exercise of its rights hereunder, such inspections or exercise of its rights are solely for the protection of Lender and Borrower understands and agrees that Lender is not making and will not matte any warranties or representations as to any matters pertaining to the Improvements including, without limiting the generality of the foregoing, the sufficiency of the construction funds, the adequacy of the Plans and Specifications or the proper performance by any contractor or subcontractor. Borrower shall pay all costs and expenses due Lender's Inspector which are incurred in connection with the Loan whether prior to or after the occurrence of an Event of Default. 6.3. Advances. (a) Letter of Credit. The principal amount available to be advanced for costs under the Seven Million Nine Hundred Thousand Dollar ($7,900,000.00) Construction Permanent Loan shall be reduced by the amount of that certain Letter of Credit issued by Lender on behalf of Borrower in favor of Hampden Township in the amount of Five Hundred Ninety Thousand One Hundred Ninety-Six Dollars ($590,196.00). Any amounts by which Lender's obligation w-Ider the aforesaid Letter of Credit are reduced, as set forth in written communications from Lender from -20- A'JG-2;-2000 F2' C2:20 PM SBI LOAN CENTER FAX NC. 24C 212 1585 P. 100 Hampden Township, shall thereafter become available for advances as otherwise provided herein. An additional fee of one percent (1%u) of the amount of the Letter of Credit shall be payable by Borrower to Lender when the Letter of Credit is issued and an annual fee of one percent (I%) of the amount then outstanding shall be payable by Borrower to Lender on each anniversary date of the Letter of Credit. (b) Disbursements under the Loan for costs of construction shall be for such amounts as are set forth in disbursement requests which are approved in accordance with the terms hereof; provided, however, that the maximum amount of draws for such costs shall be Seven Million Nine Hundred Thousand Dollars ($7,900,000.00). Borrower may request advances periodically for the cost of construction, and with respect to advances for hard construction costs, shall be in an amount not exceeding ninety percent (90%) of the cost of the completed construction and materials incorporated into the Improvements for which payments are being requested. Such requests shall be on Lender's customary forms and shall not be made more frequently than monthly. Each such request or requisition shall be approved by Borrower, the general contractor, the architect, Lender's Inspector and, if applicable, the municipal officials or authorities of the township in which the Improvements are located and each such request or requisition shall detail the work done and the materials delivered to the project. At Lender's election, such disbursements may be made through the title company issuing interim certifications and/or to Borrower and general contractor jointly. Advances shall be made in accordance with the construction budget attached hereto and identified as Exhibit "B". Any shifting of amounts from categories outlined in the budget shall be made only with Lender's prior written consent- 6.4. Retainape. Notwithstanding anything to the contrary contained herein or in the Note, the Mortgage or any other document evidencing the Loan, ten percent (10%) of each advance for hard construction costs which shall be disbursed hereunder shall be withheld pending a final disbursement which shall be made only after the Improvements have been completed in accordance with the Plans and Specifications and in compliance with all governmental or quasi-governmental authorities having jurisdiction over the construction and in accordance with this Agreement. 6.5. Borrower's Equity Contributions. Notwithstanding any other provision for advances or disbursements under this Agreement, the amount remaining undisbursed under the Loan shall at all times be an amount which is sufficient to complete the construction of the Improvements in accordance with the Plans and Specifications and to pay all labor and material required in connection therewith. In the event the amount remaining undisbursed under the Loan shall at any time be insufficient to complete the construction of the Improvements as aforesaid, Borrower shall have to contribute its own funds for payment of construction of the Improvements until this requirement is fully satisfied. No amounts paid to Lender pursuant to this Section 6.5 shall be deemed to be trust funds and no interest shall be payable to Lender thereon.. Any such amount may be co-mingled with Lender's other funds and shall be disbursed for the purposes set forth herein before any disbursements are made out of the undisbursed portion of the Loan. -21- PUC-2`-2CC? FRI C2:26 PM SBI LOAN CENTER FAX NO. 24^ 313 1565 P. `01 6.6. _Certification of Regpisitions. Prior to each advance or disbursement made hereunder, an inspection or review shall be made by Lender's Inspector and Lender shall not be obligated to disburse such requested advance until: (a) Lender's Inspector certifies the requisition/request is in proper order; (b) The work covered in the requisition/request has been completed; (c) The requisition/request has been approved by Borrower, the general contractor and the architect; and (d) The general contractor and all subcontractors and materialmen have provided partial releases of mechanics' liens. 6.7. Loan Proceeds for Construction of Improvements. Notwithstanding anything else set forth herein, Lender shall have the right to apply any funds which it has agreed to advance hereunder for the purpose of bringing about the completion of the Improvements and/or for the payment of any settlement costs, taxes or special assessments or other charges which could become a lien on the Real Property and/or any interest on the Loan and/or any premium on any insurance policy affecting the Real Property and Improvements. 6.8. Future Advances. If Lender shall receive any notice pursuant to Section 42 Pa. C.S. Section 8143(b) from any person or entity having or claiming to have a lien or encumbrance on the Real Property and/or the Improvements, even if the same is subordinate to the lien of the Mortgage, Lender shall not be liable to Borrower if Lender shall, thereafter, fail or refuse to make any future advances requested by Borrower to be made pursuant to this section unless Borrower's title insurer shall have agreed to endorse the policy of mortgagee's title insurance to insure the liens of the Mortgages in the full amount of all advances theretofore made by Lender as well as the one being requested by Borrower as a first or second lien on the Real Property and Improvements. 6.9. Submission of Requisition Vouchers; Additional Representations. Advances on the Construction Permanent Loan shall be made on the basis of a construction draw schedule and cost. breakdown satisfactory to Lender and established for the Improvements on the Real Property, each of which shall be incorporated herein by reference. All requests for construction advances shall be on an AIA Standard Form G-702, or its equivalent, and shall be supported by invoices or paid receipts of such persons or entities for whom labor or material payment is being sought. Each submitted application: (a) Shall automatically constitute a representation and certification by Borrower and the general contractor that: -22- A1JG-2' -2009 F R I 02:27 Pi f SB [ -OAN CENTER FAX N0. 24n 3 13 '1565 P. 102 (i) The work has been done and the materials have been supplied prior to submission of the requisition/voucher and they are in. strict accordance with the Plans and Specifications; (ii) The work and materials for which payment is requested have been physically incorporated into the Improvements or suitably stored on the Real Property with Lender's prior approval; (iii) The value is as stated; (iv) With respect to each category for work for which payment is being sought, the amount of such payment, together with all prior payments for such category, represents the percentage of the total payments to be made for such category as shown on the construction cost breakdown and which is no greater than the percentage of the total work for such category which has been performed as of the date of the application; and (v) The work and materials conform with all applicable rules and regulations of governmental authorities having jurisdiction over the Real Property. (b) Shall automatically constitute a further representation and certification by Borrower that the payment for the work and materials described in such application has been made or will be made with the disbursements or advances for which the application was submitted but no event has occurred which is or with the passage of tirpe or the giving of notice or both would become an Event of Default under any of the Loan Documents. (c) Each and all of the representations and warranties set forth in this Agreement continue to be true. Lender reserves the right to approve the form and content of each application and to verify the representations therein by an inspection of the Real Property and Improvements. 6.10. Mechanics' Lien Protection. At Lender's sole option, Lender may withhold any advance under the Loan until: (a) The title company has endorsed Lender's title policy to insure its lien as a first lien on the Real Property and Improvements in the aggregate amount of such advance and all prior advances hereunder; or (b) Lender shall have obtained an updated lien search evidencing that the Mortgage remains in first lien position against the Real Property and Improvements in the aggregate amount of such advance and all prior advances and that no other liens have been recorded; and/or -23- PlG-2i-2002 =RI C2?27 PM SEI LOAN CENTER FPX Nom, 24" 3'3 1585 P, 103 (c) Borrower shall have delivered t the Lender a valid aand updated ementsareeting Mechanics' Liens for materials previously provided on th Property the requirements of Act 52 of 2006. or w ill 6,11. Penns lvaniA Contractor and Subconof the Pennsylvania Con ractoz and cause the general contractor to, comply with the provisions Subcontractor Payment Act, Act No. 1994-7 as applicable. SECTION 7 - PROVISIONS RELATING TO ADVANCEMENT OF TERM LOAN 7.1. Prior to any advance being made under the Tenn Loan, Borrower shall submit to Lender, for Lender's approval, a detailed listing of all furniture, fixtures and equipment necessary to of lading equip the hotel on the Project. Thereafter, Borrower shall provie to Lender invoices, of the furniture, fixtures andlequipment and other documentation necessary to support the acquisition which shall be submitted to Lender together with a requisition for payment. Lender shall not be required to disburse or make an advance for any furniture, fixtures and equipment which have not been delivered to the Project site and inspected by Borrower acceptance compliance of the furnitur efixtures orders. Written certification from Borrower of the delivery and ceptn and equipment shall be apre-condition to any advance hereunder. Dollarsl($550,000.00) for furniture, required to advance more than Five Hundred Fifty fixtures and equipment nor shall Lender be required Lender. to advance funds in excess of any category breakdown description provided by Borrower SECTION 8 - NEGATIVE COVENANTS Borrower agrees with Lender that without the prior express written consent of Lender and until the satisfaction and discharge in full of all Obligations: 8.1. Liens. Borrower will not, without providing to Lender fifteen (15) days advance written notice, create, incur, assume or suffer to exist any material lien (including, by way of illustration but not of limitation, any lien, citation, proceeding or notice by any Person under any Environmental Laws) upon or security interest in or upon the Premises, except: (a) Exishn Liens. The Mortgage liens and security interests existing on the date hereof in favor of Lender. (b) Statutory, Good Faith Deposits. (i) Pledges or deposits under Workmens' Compensation Laws, unemployment compensation laws or other similar laws. -24- A??!G-2 i-2003 F R I 02:27 PM SB I LOAN CENTER FAX NO. 240 31 13 1565' P. 104 (ii) Good faith deposits in connection with bids, tenders, contracts (other than for the purpose of borrowing money or obtaining credit) and leases to which Borrower is a party including rent security deposits; and ety (iii) Deposits to secure public of contested axe obligations of Borrower or payme?t of or appeal bonds to which Borrower is a party, payment import duties of Borrower. (c) Statuto Jud ent Liens. (i) Any lien which is imposed by law, including, by way of illustration materialmen, mechanics and warehousemen, if but not by way of limitation: those of carriers, payment secured by that lien is not yet due and payable, or if for which adequate reserves have liens are being contested in good faith by appropriate proceedings been established; (ii) Any lien arising from a judgment or award against Borrower with respect to which Borrower is currently prosecuting an appeal or proceeding for review and has obtained a stay of execution pending such appeal or proceeding or for review; and (iii) Any lien for taxes, assessments and other governmental charges or eing levies not yet subject to penalties for non-payment, ardh the teach amounreservest of havebbeen contested by appropriate proceedings, and with reg established. (d) Purchase Money Liens. Any lien or security interest created to secure the payment of a portion of the purchase price with regard to equipment as permitted under the Loan Documents, if the lien or security interest does not affect, attach or cover any other existing or future property of Borrower. (e) Renewal Liens. Any lien or security interest created for the sole purpose of extending, renewing or refunding any lien or security risslimit d to all or anylpart of the same through (d) of this section, if such lien or security interest property covered by the original lien or security interest, and if the amount of the indebtedness secured by the lien or security interest does not exceed the amount u indebtedness secured by the lien or security interest at the time of the extension, Affiliate. to the filing of any 8.2. Tax Consolidation. Borrower otwll thnot an file or consolidated income tax return with any person 8.3. Stile of Property. Borrower will not llproperty transfer dispose of the Premises, or all or any substantial par of the assets or -25- AUG-21-2009 rRI 02:28 PM S61 LOAN CENTER FAX NO. 24n 313 1565 P. 105 or suffer any liquidation or dissolution, nor sell, discount or otherwise dispose of its notes, accounts or chattel papers other than in the ordinary course of Borrower's business. 8.4. Assumption of Liabilities. Borrower will not become or remain liable, directly or indirectly, in connection with the Obligations, liabilities or duties 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 re-purchase goods or services (whether or not such goods or services are actually acquired or otherwise) except that Borrower may endorse negotiable instruments for collection in the ordinary course of its business. 8.5. Guaranties Borrower will not directly or indirectly make any guarantee of any obligation of any Person or assume an Obligation as a surety of obligations of any Person. 8.6. Sales and Lease-Backs. Borrower will not sell, transfer or otherwise dispose of any property, real or personal, now owned or hereafter acquired, with the intention of directly or indirectly taking back a lease of such property. 8.7. Chanae In Business. Borrowentcrr into tmy new business` discontinue y substantial part, or change the nature of, the business of Borrower, o business conducted by Borrower. 8.8. Change In Franchisor. Borrower will not discontinue its franchise relationship with its existing franchisor in the operation of its motel business. SECTION 9 - WAIVERS 9.1. No Course of Dealin . No course of dealing between Lender and Borrower nor any delay or omission on the part of Lender in exercising any rights under the Loan Documents shall operate as a waiver of any rights. The waiver by Lender- on any one occasion shall not be construed as a waiver by Lender of any right on any future occasion. SECTION 10 - DEFAULTS The occurrence of any one of the following shall constitute an Event of Default: 10.1. Failure to Make Payments. Failure by Borrower to make any principal or interest payment under the Loans before the expiration of any payment grace period set forth in the Notes, whether at the maturity or acceleration of the Notes, or otherwise. 10.2. Loan A reement Loan Document Default. The default by Borrower or Surety con any the ement this itions of under- any of the requirements, covenants, aeerrualanof andevent of defaultanunder any of the Loan Loan Documents, or the occurrence or -26- ALJ-2 -2n^Q FRI 02.28 PM SBI LOAN CENTER FAX NO. 24^ ?;3 1555 P. 105 Documents, if such default in performance continues uncured for more than the applicable grace period specified in the Loan Documents. 10.3. Failure to Perform. Failure by Borrower or Surety to comply with or observe any covenant, condition, provision, representation or warranty set forth in this Loan Agreement or any of the Loan Documents for thirty (30) days or more after written notice frown Lender; or if any certificate or other financial statement furnished by Borrower or Surety pursuant to this Loan Agreement or as part of the Commitment Letter was false or misleading in any material respect as of the time made or furnished or shall have become materially incorrect or misleading by the passage or running of time and Borrower fails to inform Lender in writing of such change. 10.4. Financial Difficulty. If Borrower or Surety shall suffer any material business or financial impairment or material financial difficulty as evidenced by. (a) F ailure by Borrower to make any payment of principal of or accred interest on any obligation for borrowed money or for the deferred purchase price of property beyond the such failure causes grace period provided with regard to such obligation if the holders) to accehe a?e deru 1? on holders of such obligation (or a trustee obligation prior to its stated maturity; or (b) The filing of any voluntary petition under any section of the Bankruptcy Code; or (c) Borrower or Surety shall incur the entry of a court order which is not vacated or stayed within ninety (90) days: (i) Appointing a receiver or trustee for all or a material part of its assets or property, or (ii) Approving a petition filed against it under any section of the Bankruptcy Code. to permitted by 10.5. Sale or Lease b Borrower of St to selll leases or agrees to Except as on Lender, if Borrower transfers, pledges, sells, agrees (whether an Affiliate, a Subsidiary or an unrelated Person) all or substantially all of its tangible or intangible real or personal property and assets of Borrower. Immediately upon an Event of Default, Lender may, at its sole option, at the time of acceleration notify Borrower that Lender is accelerating all obligations of Borrower under the Loan Documents and all obligations of Surety under the Suretyship and all interest, costs and other charges accrued thereon. All liabilities of Borrower and Surety thereunder shall be immediately due -27- AIJG-2' -2002 FR, 02:29 PM SB I LOAN CENTER FAX NO. 2410 '585' P. l 07 and payable, without presentment, demand, protest odr notice of any kind whatsoever to Borrower and Surety, all of which are hereby expressly In the event of any Event of Default under any of the Loan of Lendemen ten Borrower fore enforcing theldrishts Suretoyf jointly and severally, unconditionally agree to pay all cost Lender hereunder. 10.6. Acceleration' Setoff. (a) Automatically upon the occurrence of an Event of Default and in the sole discretion of Lender upon the occurrence of an Event of Default, the unpaid principal balance of the Loan described herein, all interest and fees accrued and unpaid thereon, and all other amounts and Obligations payable by Borrower under this Loan Agreement and the other Loan Documents shall immediately become due and payable in full, all without protest, presentment, demand or further notice of any kind to Borrower, or to Surety, all of which are expressly waived by Borrower and Surety. or an one or vents (b) If any of the Obligationshavle l tblz drilatdinaaddition toyall other more ghts and of Default shall have occurred, Lender shall right, remedies available to it, without notice to Borrower, to apply toward and setoff against and apply to the then unpaid balance of the Notes and the other Obligations any item or funds held by Lender any and all deposits (whether general or special, time or demand, matured or unmatured, fixed or contingent, liquidated or unliquidated but excluding any retirement plan, trust or agency accounts) now or hereafter maintained by Borrower for its own account with Lender and any other indebtedness at any time held or owing by Lender to or for the credit or the account of Borrower. For such purpose, Lender shall have, and Borrower hereby grants to Lender, a first lien on all of such deposits. Lender is hereby authorized to charge any such account or indebtedness for any amounts due to Lender. Such right of set-off shall exist whether or not Lender shall have made any demand under this Loan Agreement, the Notes ot any other dLB Loan Document hereby confirms the lien of Lender and the other Obligations are matured or unmat or such accounts and the right of set-off and nothing in this Loan Agreement shall be deemed to be a waiver or prohibition of such lien and right of set-off. 10.7. Further Remedies• Confession of Judgment. (a) Upon the occurrence of a Default, Lender may proceed to protect and enforce its rights under this Loan Agreement and the other Loan Documents by exercising such remedies as are available to Lender in respect thereof under applicable law, either by suit in equity or by action at law, or both., whether for specific performance of any provision contained in this Loan Agreement or any of the other Loan Documents. -28- A?JG-21-20"9 FR 1 02:29 PM SB I ?_OAN CENTER FAX NO. 24n 31 3 1568 P. 108 (b) BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS LENDER, BY ITS ATTORNEY, OR BY THE PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH PON PENNSYLVANIA RRENCE OF A JURISDICTION WHERE PERMITTED BY LAW, DEFAULT, OR AT ANY TIME THEREAFTER THAT ENTER JUDGMENT O GA NST1Gr RO APPEAR FOR BORROWER, AND CONFESS AN FAVOR OF LENDER IN ANY JURISDICTION IN WHICH OBLIGARTIONS, TOGST'HER WITH PROPERTY IS LOCATED FOR THE AMOUNT OF ALL COSTS OF SUIT AND WITH ACTUAL COLLECTTO L WITHOUT ATTORNEYS' FEES), WITH OR WITHOUT DECLARATION, EXECUTION AND WITH RELEASE OF ALL PROCEDURAL SO THIS LOAN AGREEMENT OR OA ISSUE EXECUTION FORTHWITH, AND FOR DO COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. BORROWER HEREBY WAIVES AND RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAW OF ANY NOW IN FRCE BEO EXHAUSTED BY THE SINGLE THIS AUTHORITY AND POWER SHALL NOT EXERCISE THEREOF, AND SHALL CONTINUE UNTIL THE OBLIGATIONS ARE FULLY PAID, PERFORMED, DISCHARGED AND SATISFIED. BORROWER ACKNOWLEDGES THAT LENDER HAS URGED BORROWER TO SEEK THE ASSISTANCE OF LEGAL COUNSEL IN THE FURTHER REVIEW HAD EXECUTION OF THIS LOAN AGREEMENT AND FOREGOING BORROWER IS AWARE OF THE MEANING JUAND EFFECT OF DGMENT AND THAT SUCH TERMS PROVISIONS CONCERNING CONFESSION O WERE PREVIOUSLY FULLY EXPLAINED TO BORROWER BY ITS COUNSEL. SECTION 11- MISCELLANEOUS 11.1. Survival. All covenants, agreements, representations and warranties contained in the Loan Agreement are material to the advance of the Loan and have been expressly relied upon by Lender and, as such, shall continue in full force and effect until the payment and satisfaction in full of all obligations of Borrower and Surety under the Loan Documents. 11.2. Sealed Inst?ruments• Controlling Luw• SeverAbili . This Loan Agreement shall constitute an instrument under seal and shall be construed and enforced in accordance with the Wwea hh Pennsylvania, domestic internal laws, but not the law of conflicts of wathu? tthe he Commonwealth an agreement made and to be wholly performed Borrower and Surety agree that any suit, action or proceeding arising under or with respect to the Loan Documents will be instituted in the Cowt of Common Pleas of Lancaster County, Pennsylvania, or the United States District Court for the Eastern District of Pennsylvania, and irrevocably and unconditionally submits to the jurisdiction and venue of each such Court for such purpose. -29- Puri -2'-2CC° FRI ":22 PM SBI LOAN CENTER FAX NO. 240 31 ? 150 `5 P. 109 11.3. Notices. Any notice or demand required by the Loan Documents shall be deemed to have been given if sent by certified or registered mail, postage prepaid, in the United States mail to the addresses as specified in the Commitment Letter, or to such other address as shall at any time be designated, in writing, by one party given to the other. 11.4. Reimbursement. Borrower agrees to reimburse Lender, within fifteen (15) days after notice from Lender, for all fees, cost disbursements w th all coss expenses, of Lender for compliance, reasonable counsel fees, incurred by Lender in connection monitoring and enforcing this Loan Agreement and the Loan Documents. 11.5. Section Headin s and 'Construction. The titles of the sections of this Loan Agreement appear as a matter of convenience only and shall not affect the construction hereof. 11.6. LaIgg ation. This Loan Agreement constitutes the entire agreement of the parties with respect to the terms and conditions set forth herein and shall be deemed to incorporate and integrate all of the terms and conditions of each of the Loan Documents. No amendment or modification changing the scope or the terms and conditions of this Loan Agreement shall have any force or effect unless it is in writing and signed by both parties. 113. Conies and Originals. This Loan Agreement is being executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one instrument. 11.8. Successors and Assi ns. This Loan Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, transferees and assigns. Borrower and Surety acknowledge and agree that all of their respective duties and obligations under this Loan Agreement and raider the Loan Documents may not be transferred or assigned without the express prior written consent of Lender. 11.9. Judicial Proceedings. Each party to this Loan Agreement agrees that any suit, action or proceeding, whether claim or counterclaim, bought or instituted by any party hereto or any successor or assign of any party, on or with respect to this Loan Agreement or the dealings of the parties with respect hereto, shall be tried only by a court and not by a jury. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. Further, each party waives any right it may have to claim or recover, in any such suit, action or proceeding, any special, exemplary, punitive or consequential damages or any other damages other than, or in addition to, actual damages. BORROWER AND SURETY, SPECIFIC ?AND MATERIAL ASPECT OF THIS LOAN AGREE THAT THIS SECTION I A AGREEMENT AND THAT LENDER WOULD NOT HAVE EXTENDED CREDIT TO -30- FR I ' 2:20 PM SB I I.OAN CENTER FAX N0, 240 ? 1555 P. 110 BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS AGREEMENT. 11.10. Participation. Lender may from time to time the holden of any such participation, if the Loan and the Notes described to this Loan Agreement the participation agreement so provides: (i) shall, with respect to its participation, be entitled to all of the rights of Lender; and (ii) may exercise Borrower w and Wall eregd directly indebted banker's de hof such thereto, in each case as fully as though participation in the amount of such participation. Lender shall give notice to Borrower of the grant of such participation; however, the failure to give such notice shall not affect any of Lender's rights hereunder. No expenses incurred in connection with such participation shall be borne by Borrower. 11.11. Severabili of provisions. Any provision in this Loan Agreement that is held to be inoperative, unenforceable, voidable or invalid in any jurisdiction shall, as to that jurisdiction, be ineffective, unenforceable, void or invalid without affecting the remaining provisions of this Loan Agreement in that jurisdiction or in any other jurisdiction, and the provisions of this Loan Agreement are declared to be severable. 11.12. Consent to Jurisdiction and Service of process. Borrower irrevocably appoints each member of Borrower as its attorney upon whom may be served any notice, process or pleading Loan in any action or proceeding against ang out of or conection with any of tit will be either by rr against Documents. Borrower hereby consents that y action o commenced and maintained in the Court of Common Pleas of Lancaster County, Pennsylvania or to the united States District Court for the Eastern District of Pennsylvania by service of process on any such individual member. Borrower agrees that the Court of Common Pleas of Lancaster County, Pennsylvania and the United States District Court for the Eastern District of Pennsylvania shall have jurisdiction with respect to the subject matter hereof and the person of Borrower. Notwithstanding the foregoing, bender, in its absolute discretion, nd may or also initiate proceedings in the courts of any which any of its properties may be located. other jurisdiction to which Borrower may 11.13. Indemnification, (a) If, after receipt of any payment of all or any part of the Obligations; Lender is compelled to surrender such payment to any Person or entity for any reason (including, without limitation, a determination that such payment is void or voidable as a preference or fraudulent Agreement conveyance, an impermissible setoff, or a d'tv?11tforce f atrust nd then this Lan liable ford, the other Loan Documents shall continue to and shall indemnify, defend and hold harmless Lender with respect to the full amount so surrendered. (b) Borrower shall indemnify, defend and hold harmless Lender with respect to any and all claims, expenses, demands, losses, costs, fines or liabilities of any kind (including, -31 - ?UJ-2;-2CCP FRI "12: 21C PM SEI LOAN CENTER FAX NO. 240 '31, 31 1555 P. 11I without limitation, those involving death, personal injury or property damage and including reasonable attomeys' fees and costs) arising from or in any way related to any hazardous material or dangerous environmental condition within, on, from, related to or affecting any Real Property owned or occupied by Borrower. (c) The provisions of this section shall survive the termination of this Loan Agreement and the other Loan Documents and shall be and remain effective notwithstanding the payment of the Obligations, the cancellation of the Notes, the release of any encumbrance securing the Obligations or any other action which Lender may have taken in reliance upon its receipt of such payment. Any cancellation of any of the Notes. release of any encumbrance or other such action shall be deemed to have been conditioned upon any payment of the Obligations having become final and irrevocable. IN WITNESS WHEREOF, Lender and Borrower have caused this Loan Agreement to be duly executed and delivered by themselves or by their proper and duly authorized officers or members as of the day and year first above written. LENDER; Witness: SUSQUEHANNA BANK PA By; Christopher D. Marschka, Assistant Vice President BORROWER; Witness: rl..r___a f -( -"? -32- Insite Development, LLC B - Donald resident RUJ-2;-2C^2 FR' C2*0 PM SBI LOAN CENTER FAX NC. 240 2'? 1565 P. 112 T e Individual XS ety hereby acknowledges that he has received a copy of this Loan Agreemen , reviewed the terms hereof and agrees to be bound by the terms hereof. Witness: Donal rwin The undersigned Operating Entity Surety hereby acknowledges to be bound by the terms hereon of agrees this Loan Agreement, has reviewed the terms hereof and Witness: Insite Hospitality LLC -33- PU1-2'-20C9 FRI C2:31 PM SBI LOAN CENTER FAX NO. 24? 2", 21 1555 F. 1.13 Exhibit "A" List of Prime Contractors (a) Abeco, Inc. - construction management and general conditions; (b) Robert H. Kepler Masonry Coritraetor, Inc. - masonry; (c) Schindler Elevator Corporation - elevator; (d) Total Heating & Cooling, Inc. -14VAC; (e) Rodney B. Smith Plbg. & Htg. A/C, Inc. - plumbing; (f) Neiswonger Construction, Inc. - site work, (g) R&R Plaster & Drywall Co., Inc. - dspwJt/EIF (h) H.H.H., Inc. - GYP/CEM/FRM/ROOF (i) Conewago Enterprises, Inc. - STUPLANKJSTDS 0) Lezzer Lumber, Inc. - LMBR/TRUSS/FRM (k) BBEC, Inc. - electric; (1) Rowe Sprinkler Systems, Inc. - sprinkler; and (m) J&J Sons Drywall, LLC - drywall AUG-21-2009 FR! 02:31 PM SBI LOAN CENTER FAX NO. 240 3'.3 1565 Exhibit "B" Construction Budget P. '.14 159]/5.1 A"G-27-20C9 ,=R7 02:21. Pr SBT LOAN CENTER FAX Nom. 24P ?13 11565 COMFORT SUITES MECHAN.ICSBURG. PA 4/1!08 SUBCONTRACTORS: SCOPE: COST: CONSTR. MGMT $ 150,000. . AI3ECO,RNC. ABECO,INC GEN. CONDITIONS 50,000 115 247 KEPL>:R MASONRY LEVATOR F , 133,750 , SCHINDLER fl VAC TOTAL HEA-UNG & COOLING 314,208 ,208 RODNEY SMITH PL 082 833 N>?ISwoNGER SITE WORK Ems , 356,950 R&R LLAPORT vn4YIJPAINTING 116,000 A ILCO ICABR3 I CARD READERS ALUMMINUM/WDS 25,000 150,000 GLASS ERECTORS GYP/CEM/FRM/ROOF/ETC 1,079,593 Hll&H,rNC CONEWAGO STUPLANK/STDS 1,857,661 LEZZEEt LMBR/TRUSS/FRM 185,880 SPECIALTY ACCES. BATH-ROOM T? ?S. 425,000 000 3 DEGOL , gg ppp BUDGET DIALTILE BUDGET MISC. STEEL CERAMIC TILE . 28,000 BREC ELECTRIC 610,000 000 250 GEORGE CHURCH SPRINKLER , 000 DON 40 BUDGET A13ECOI CONEWAGO POOL PLANK. BORING , 40,000 INSPECTIONS BUDGET TESTING DESK/MIRRORS/ETC 25,000 50,000 DON MISC. GLASS ERECTORS INT. DOORMDWR. 166,975 000 7 , LAUNDRY CHUTE PROPOSAL DRY WALLIINSULATION 3&3 AND SONS DRYWALL 457,790 METER PITNALVFS BUDGET Z?m X7,839,530 TOTAL OT :TUB SURROUNDS ARE FIBERGLASS :STAIR TOWERS REVISED TO REFLECT CENTER WALL- AND NO PICKET :RAIL. :TENANT BUILDOUT 1-CCEPT INS.ITI SPACE NO HEATINGIDUC.TWORK OR :DRYWALL- :CARPET/PAD/BASE LABOR ALLOWANCE OF $5.00 SQUARE YARD. :CERAMIC TILE AND MATERIAL ALLOWANCE OF $5.00 SQUARE FOOT. P, 115 6,V ?,;b;f Q 0 MOd %0E pah63ay %001 COPY 6n3, r-i in 16M #1606og6iN GUARANTY AND SURETYSHIP AGREEMENT With Power to Confess 3udawgut l . TO INDUCE SUSQUEHANNA, BANK PA ("Bank") to transact business with and to make a loan to INSITE DEVELOPMENT, LLC, a Pennsylvania limited liability company ("Borrower"), DONALD H. ERWIN (whether one or more, the "Undersigned") does hereby guarantee, absolutely and unconditionally and does hereby become surety for the full and timely payment of the principal of, and interest on, all obligations, debts, dues, instruments, liabilities, advances, judgments, damages, losses, claims, contracts, and choses in action, of whatever nature and however arising, past, present or future, and any and all extensions and renewals thereof in whole or in part, whether direct or indirect, absolute or contingent, voluntary or involuntary, now due or to become due, and whether owed to Bank from Borrower as drawer, maker, endorser, assignor, guarantor, surety, or otherwise whatsoever relating to two (2) certain credit facilities extended by Bank to Borrower, being a Seven Million Nine Hundred Thousand Dollar ($7,900,000.00) construction/permanent loan and a Five Hundred Fifty Thousand Dollar ($550,000.00) term loan ("Obligations"), except this Guaranty and Suretyship Agreement shall not extend to any obligation of Borrower which is defined as "consumer credit" by Federal Reserve Board Regulation Z, 12 C.F.R. §226.1 et seq., and is not exempted from the application of that Regulation. Undersigned will reimburse Bank or any subsequent holder hereof for all expenses incurred, and not reimbursed by Borrower, in collection of any of Obligations. If this Guaranty and Suretyship Agreement is referred for collection to an attorney, Undersigned will pay to Bank a reasonabie attorney's fee, but in no event less than Two Thousand Five Hundred Dollars ($2,500.00), and costs of legal proceedings. The Undersigned's Obligations hereunder shall be payable at the Bank's offices at 1570 Manheim Pike, P.O. Box 3300, Lancaster, Pennsylvania 17604-3300. This Guaranty and Surety shall be effective upon receipt by Bank and disbursement of the loan proceeds to Borrower. 2. This is a guaranty of payment and not merely of collection. In the event of any default by Borrower and after a ten (10) day written notice to the Undersigned, providing for ten (10) days to cure any default of the Borrower, the Undersigned will pay all or any portion of the Obligations due or thereafter becoming due, whether by acceleration or otherwise, without defalcation or offset of any kind, without Bank first being required to make demand upon Borrower except as set forth in the foregoing notice, or pursue any of its rights against Borrower, or any other person, including any other guarantors; and without being required to liquidate or realize on any collateral security. In any right of action accruing to Bank, Bank may elect to proceed against (a) Undersigned together with Borrower; (b) Undersigned and Borrower individually; or (c) Undersigned only without having first commenced any action against Borrower. 3. Undersigned hereby grants to Bank a security interest in, lien upon, and right of setoff against, all deposit accounts, credits, securities, moneys or other personal property of Undersigned which may at any time be in the possession of, delivered to or owed by Bank, including any proceeds or returned or unearned premiums of insurance, and the proceeds of all the foregoing property, but specifically excluding any retirement plan, trust or agency accounts. 4. Bank, without notice to Undersigned and without impairing the liability of Undersigned hereunder: (a) may deal with Obligations and any collateral security therefor in such manner as Bank may deem advisable and may renew or extend Obligations or any part thereof; (b) may accept partial payment, or settle, release, or compromise the same; (c) may demand additional collateral security for Obligations, and substitute or release the same; (d) may amend or modify the Obligations (including any documents or instruments evidencing the Obligations), to which amendment or modification Undersigned hereby consents, whether or not the amendment or modification is material and/or increases Undersigned's risk hereunder; and (e) may compromise or settle with or release and discharge from liability any of the Undersigned or any other guarantor of the Obligations, or any other person liable to Bank for all or part of the Obligations. 5. Undersigned hereby unconditionally waives: (a) notice of acceptance of this Guaranty and Suretyship Agreement by Bank and any notice of the incurring by Borrower of any Obligations; (b) presentment for payment, notice of non-payment, demand, protest, notice of protest and notice of dishonor or default to any party including Undersigned; (c) all other notices to which Undersigned may be entitled but which may legally be waived except notice required under this Guaranty and Suretyship; (d) demand for payment as a condition of liability under this Guaranty and Suretyship Agreement; (e) any disability of Borrower or defense available to Borrower, including absence or cessation of Borrower's liability for any reason whatsoever except payment in full of the Obligations; (f) any defense or circumstance which might otherwise constitute a legal or equitable discharge of a guarantor or surety except payment in full of the Obligations; (g) all rights under any state or federal statute dealing with or affecting the rights of creditors; and (h) any right to notice of or to defend against any action, suit or proceeding by Bank against Borrower to enforce or collect the Obligations. 6. Until the Obligations are paid in full, Undersigned hereby unconditionally subordinates to the Obligations all present and future debts, liabilities, or obligations of Borrower to Undersigned; and all amounts received by Undersigned under such debts, liabilities, or obligations shall be paid over to Bank on account of the Obligations. Undersigned, at Bank's request, shall execute a subordination agreement in favor of Bank to further evidence and support the purpose of this Paragraph 6. 7. Undersigned warrants to Bank: (a) no other agreement, representation or special condition exists between Undersigned and Bank regarding the liability of Undersigned hereunder; nor does any understanding exist between Undersigned and Bank that the Obligations of Undersigned hereunder are or will be other than as set out herein, and (b) as of the date hereof Undersigned has no defense whatsoever to any action or proceeding that may be brought to enforce this Guaranty and Suretyship Agreement. 8. Undersigned will provide financial information to Bank in accordance with the Loan Agreement of even date. -2- 9. No failure or delay on the part of Bank in exercising any right, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise' of any other right, power or privilege. Failure by Bank to insist upon strict performance hereof shall not constitute a relinquishment of its right to demand strict performance at another time. Receipt by Bank of any payment by any person on the Obligations, with knowledge of a default on any of the Obligations or of a breach of this Guaranty and Suretyship Agreement, or both, shall not be construed as a waiver of the default or breach. 10. THIS GUARANTY AND SURETYSHIP AGREEMENT IS A CONTINUING GUARANTY AND SHALL CONTINUE IN FORCE UNTIL PAYMENT IN FULL OF THE OBLIGATIONS OR RECEIPT BY BAND OF WRITTEN NOTICE OF REVOCATION BY UNDERSIGNED OR RECEIPT OF NOTICE OF UNDERSIGNED`S DEATH; AND IN ANY OF SUCH EVENTS THIS GUARANTY AND SURETYSHIP AGREEMENT SHALL CONTINUE IN EFFECT NEVERTHELESS UNTIL ALL EXISTING OBLIGATIONS OF BORROWER TO BANK IS PAID; IT BEING CONTEMPLATED THAT BORROWER MAY CREATE OR INCUR INDEBTEDNESS, REPAY AND SUBSEQUENTLY CREATE OR INCUR INDEBTEDNESS WITHOUT NOTICE TO UNDERSIGNED; AND UNDERSIGNED, BY PERMITTING THIS GUARANTY AND SURETYSHIP AGREEMENT TO REMAIN IN EFFECT, SHALL BE BOUND. 11. This Guaranty and Suretyship Agreement is freely assignable and transferable by Bank; however, the duties and obligations of Undersigned may not be delegated or transferred by Undersigned without the written consent of Bank. The rights and privileges of Bank shall inure to the benefit of its successors and assigns, and the duties and obligations of Undersigned shall bind Undersigned's heirs, personal representatives, successors and assigns. 12. If any provision hereof shall for any reason be held invalid or unenforceable, no other provision shall be affected thereby, and this Guaranty and Suretyship Agreement shall be construed as if the invalid or unenforceable provision had never been a part of it. 13. As used herein, "Undersigned" refers individually and collectively to all signers of this Guaranty and Suretyship Agreement, including in the case of any partnership all general partners of such partnership individually and collectively, whether or not such partners sign below. Undersigned shall each be jointly and severally bound by the terms hereof, and each general partner of any partnership executing this Guaranty and Suretyship Agreement shall be bound hereby both in such general partner's individual and partnership capacities. 14. This Guaranty and Suretyship Agreement shall in all respects be governed by the laws of the state where the Undersigned's Obligations hereunder are payable as set forth herein. 15. IN THE EVENT OF DEFAULT, THE UNDERSIGNED HEREBY EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR THE UNDERSIGNED AND TO CONFESS JUDGMENT AS OFTEN AS NECESSARY AGAINST THE UNDERSIGNED IN FAVOR OF THE HOLDER HEREOF, AS OF ANY TERM, FOR THE ABOVE DESCRIBED OBLIGATIONS PLUS INTEREST DUE, TOGETHER WITH COSTS OF SUIT AND REASONABLE ATTORNEYS FEES, WITH RELEASE OF ALL PROCEDURAL ERRORS. THE UNDERSIGNED'S WAIVES ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION. 16. Undersigned hereby irrevocably waives any and all rights Undersigned may have at any time (whether arising directly or indirectly, by operation of law or contract) to assert any claim against Borrower on account of payments made under this Guaranty and Suretyship Agreement, including without limitation, any and all rights of subrogation, reimbursement, exoneration, contribution or indemnity. 17. This Guaranty and Suretyship Agreement and Undersigned's payment obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment of any of the obligations is rescinded or must otherwise be restored or returned by the Bank, all as though such payment had not been made. The Bank's good faith determination as to whether a payment must be restored or returned shall be binding on Undersigned. April, 2008. Witness: Witness the due execution hereof intending to be legally bound this day of -° Donald H. COMMONWEALTH OF PENNSYLVANIA ) ) ss: COUNTY OF LANCASTER ) On this, the 'R,t` day of April, 2008, before me, a Notary Public, the undersigned officer, personally appeared Donald H. Erwin, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. NOTARIAL SEAL DENISE MCBRIDE i sssss. t Notary Public EAST NEMPfIELD 1W LANCASTER COIIMY MY Commission Expires Oct SO, 2011 4 Notary Public ?kti,b?+ L A V/V _ McNees Wallace & Nurick LLC attorneys at law CLAYTON W. DAVIDSON DIRECT DIAL: (717) 237-5496 DIRECT FAX: (717) 260-1678 E-MAIL ADDRESS: CDAVIDSON@MWN.COM September 9, 2009 Insite Development, LLC Attn: Donald H. Erwin 1943 Monterey Drive Mechanicsburg, PA 17050 Re: Notice of Default Dear Mr. Irwin: Donald H. Erwin 1943 Monterey Drive Mechanicsburg, PA 17050 This letter is to advise Insite Development, LLC ("Insite") and you individually that a default has occurred under the loan documents (the "Loan Documents") evidencing Susquehanna Bank's two loans to Insite in the principal amount of $7,900,000.00 and $555,000.00 (collectively the "Loans"). Specifically, Insite has allowed the following mechanics lien claims to be filed against its real property known and numbered as 4569 & 4533 Mount Zion Drive, Cumberland County, Pennsylvania: (a) R&R Plaster & Drywall Col, Inc. - Case No. 09-2949 - $107,429.00 (b) H.H.H., Inc. - Case No. 09-3138 - $203,984.07 (c) BBEC, Inc. - Case No. 09-3538 - $188,825.70 (d) Laporte Painting, Inc. - Case No. 09-3806 - $71,715.00 (e) Total Heating & Cooling, Inc. - Case No. 09-4276 - $107,018.51 (f) Glass Erectors, Inc. - Case No. 09-4308 - $274,325.96 (g) Rodney B. Smith Plumbing, Heating and Cooling, Inc. - Case No. 09-5700- $200,355.64 These mechanics liens must be removed from the above referenced property within thirty (30) days from the date of this letter to cure this default. Sincerely, CW D/emp c: Jeffrey Aleshire, Executive Vice Pres. McNEES WALLACE & NURICK LLC Y Clayt W. Davids P.O. Box 1166. 100 PINE STREET - HARRISBURG, PA 17108-1166 - TEL: 717.232.8000 - FAX: 717.237.5300 - WWW.MWN.COM COLUMBUS, OH - STATE COLLEGE, PA - LANCASTER, PA - HAZLETON, PA - WASHINGTON, DC FIR /1r Tt- r r ._ MUM F 2 t cW LOS. ;`a a d- /+1Q1???? e A46 /c Al,, 5-0 pot- a- / /Z q IL 5 ?0?G66 A-c-?/ 6 SUSQUEHANNA BANK, Plaintiff V. DONALD H. ERWIN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. : CIVIL ACTION -LAW NOTICE OF ENTRY OF JUDGMENT TO: Donald H. Erwin 1943 Monterey Drive Mechanicsburg, PA 17050 You are hereby notified that on / /- J- 5' , 2009 a judgment by confession was entered against each of you in the above-captioned case in favor of Susquehanna Bank as follows: FIRST LOAN Principal: $7,853,875.11 Accrued Interest : $ 7,561.57 Total: $7,861,586.68 *along with interest accruing at the current per diem rate of $541.04, costs and reasonable attorney's fees until paid in full. SECOND LOAN Principal: $549,843.33 Accrued Interest: $ 572.14 Costs $ 100.00 Total: $550,515.47* *along with interest accruing at the current per diem rate of $40.93, costs and reasonable attorney's fees until paid in full. TOTAL: $8,412,102.15* *along with interest accruing at the current per diem rate of $581.97, costs and reasonable attorney's fees until paid in full (the "Indebtedness") DATE: l 0?1/ PROTHONOTARY ?/9( SUSQUEHANNA BANK, Plaintiff V. DONALD H. ERWIN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CASE NO. : CIVIL ACTION -LAW NOTICE UNDER PA.R.C.P. NO. 2958.1 OF JUDGMENT AND EXECUTION THEREON TO: Insite Development, LLC 1943 Monterey Drive Mechanicsburg, PA 17050 A judgment in the amount of $8,412,102.15 has been entered against you and in favor of Susquehanna Bank, in the above captioned case without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE, THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 Date: November 25, 2009 McNEES WALLACE & NURICK LLC By: ??c dson Clayton W. D f9139 Attorney I.D. 100 Pine Street-P.O. Box 1166 Harrisburg, PA 17108-1166 Direct Fax: 717-260-1678 Phone: 717-232-8000 cdavidson(a)mwn.com Attorneys for Plaintiff, Susquehanna Bank SUSQUEHANNA BANK, Plaintiff V. DONALD H. ERWIN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.? 1(I ; ? : CIVIL ACTION -LAW AFFIDAVIT OF NON-MILITARY SERVICE AND LAST-KNOWN ADDRESSES OF DONALD H. ERWIN COMMONWEALTH OF PENNSYLVANIA CUMBERLAND COUNTY : SS. The undersigned, being duly sworn according to law, deposes and says that to the best of my information and belief, Defendant, Donald H. Erwin, is not in the Military or Naval Service of the United States or its Allies, or otherwise within the provisions of the Service Members Civil Relief Act, f/k/a the Soldier's and Sailor's Civil Relief Act of 1940, 50 U.S.C. App. 501, et seq. Donald H. Erwin is over eighteen (18) years of age and were last known residing at 1943 Monterey Drive, Mechanicsburg, PA 17050 Clayton A*.Dave son SWORN and subscribed to before me this 25th day ,,of N nit-ef-,2DO9, rN Od k)?&" COMMONWEALTH OF PENNSYLVANIA Notarial Seal ary Public Ellen M. Palmer, Notary Public City of Harrisburg, Dauphin County My Commission Expires My Commission Expires Aug. 1, 2010 (SEAL) rBALED-01"i iCE _A 2009 NOY 25 PH 2: 25 SUSQUEHANNA BANK, Plaintiff V. DONALD H. ERWIN, Defendant CET IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. CIVIL ACTION -LAW tTIFICATION OF ADDRESSES I, Clayton W. Davidson, hereby certify that the Defendant, Donald H. Erwin, is an adult individual residing at 1943 Monterey Drive, Mechanicsburg, Pennsylvania 17050 and that the address of the Plaintiff, Susquehanna Bank, successor in interest to CommunityBanks, is a Pennsylvania banking institution with its principal place of business located at 1570 Manheim Pike, P.O. Box 3300, Lancaster, Lancaster County, Pennsylvania, 17604-3300. McNEES WALLACE & NURICK LLC Date: November 25, 2009 By ?-- - Clayton W. avidson PA Attorney I.D. No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidson(a,mwn. com Attorneys for Susquehanna Bank FILE I , f0E OF THE FrJ ' ? nn ?nTAQY 2009 NOY 25 PH 2: 2 VS RECEIVED FEB 12 2010 SUSQUEHANNA BANK, Plaintiff v. DONALD H. ERW1N, Defendant MEMBERS 1sT, V. Garnishee IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. 09-8211 CNIL ACTION -LAW AiuscvQ/1..5 ~ INTERROGATORIES TO GARNISHEE TO: Members 1St 1166 Walnut Bottom Road Carlisle, PA 17013 C1 N L"7 t_J ~' 0 'T'1 --r , =~-, ~ ~ - n c„ ~, ~ „:' .J --a _ ,_ - -+;~ -z- - ' -_ +~~ j c.~a O You are required to file answers to the following interrogatories within twenty (20) days after service upon you. The answers must be in writing and under oath. You are warned that if you fail to do so, a Judgment may be entered against you by the Court without further notice for any money claimed by the Plaintiff against the Defendant. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEL OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 f SUSQUEHANNA BANK, Plaintiff v. DONALD H. ERWIN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. U9-821 CIVIL ACTION -LAW MEMBERS 1sT, v. Garnishee INTERROGATORIES To: Members 1St You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do so may result in judgment against you: 1. At the time you were served or at any subsequent time did you owe the Defendant any money or were you liable to them or any of them on any negotiable or other written instrument, or did they or any of them claim that you owed them or any of them any money or were liable to them or any of them for any reason? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. ~~ E 2. At the time you were served or at any subsequent time was there in your possession, custody or control or in the joint possession, custody or control of yourself and one or more other persons any property of any nature owned solely or in part by the Defendant? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. ~© 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in part by the Defendant or in which Defendant held or claimed any interest? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. ~~ i 4. At the time you were served or at any subsequent time did you hold as fiduciary any property in which the Defendant had an interest? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. ~~ 5. At any time before or after you were served dial the Defendant transfer or ¢leliver any property to you or to any person or place pursuant to your direction or consent and if s4 what was the consideration therefor? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount df the debt, the value and location of any property and the amount of consideration given for any~ltransfer of property. • .~ 6. At any time after you were served did you pay, transfer or deliver any ~, money or property to the Defendant or to any person or place pursuant to the direction of them or ashy of them or otherwise discharge any claim of the Defendant against you? If so, explain in detail (including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the s ecific amount of the debt, the value and location of any property and the ount of p consideration given for any transfer of property. ~a ~I ~~ 7. At the time you were served or at any subsequent time, did you hav~ any safe deposit boxes, pledges, documents of title, securities, notes, coupons, certificates, receivables, collateral, checking, savings, tax or other accounts or deposits in which Defendant has II interest? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and loc tion of any property and the amount of consideration given for any transfc~- of property. ~' r . f 8. At the time you were served or at any subsequent time, were you a secured party as that term is defined under the Uniform Commercial Code (13 Pa. C.S.A. § 9102)(the "UCC") with respect to the Defendant? If so, explain in detail including, ~~-ithout limitation, providin~ copies of any security agreement or other record which gives rise to a security interest in any deposit account as that term is defined under the UCC. 9. Have you agreed with the Defendant and any other secured parry that you (will comply with instructions originated by such other secured party, without further consent ~y the Defendant, directing disposition of the funds in any deposit account maintained by you irk an authenticated record as those terms are defined under the UCC'? If so, explain in detail including, without limitation, providing copies of any authenticated record which gives rise to contrpl of any deposit account maintained by you. ~ Iv~ ~+ . These Interrogatories shall be deemed to be continuing Interrogatories. If after the time of your answer, you or anyone acting in your behalf learn or obtain additional information requested, but not supplied in your answers, you shall promptly furnish a supplemental answer under oath containing the same. ~~,~ ., .-, , J - ,,_.,. ~,',[J~ -,:' (/ / _ r T'yr e A. Power ~ i. `~ P~vell Law, P.C. 301 Market Street Suite 403 Harrisburg, PA 17101 For signature by Garnishee: -, ~pcy ~ -~`~,~~ ~b~c~~' states, subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, that he/she is authorized by Garnishee to make this affidavit, and that the facts set forth herein are true and con-ect to the best of his/her knowledge, information and belief. Dated: ~ ~°2 ~~ em s 1St St MEMBERS 1St FEDERAL CREDIT UNION February 12, 2010 Name: Donald H Erwin Address: 1943 Monterey Drive Mechanicsburg, Pa 17050 Account Number: XXX730 Name on Account: Insite Development LLC Donald H Erwin (Authorized Signer) Patricia AProvenzano-Erwin (Authorized Signer) Business Savings: $10.00 (5.00) Membership Fee X5.00) Processing Fee $ 0.00 Business Checking: $ 0.00 Account Number: XXX736 Name on Account: Insite Development LLC Donald H Erwin (Authorized Signer) Patricia AProvenzano-Erwin (Authorized Signer) Business Savings: $10.00 (5.00) Membership Fee 5.00 Processing Fee $ 0.00 Business Checking: $ 0.00 $300.00 Statutory Exemption was not taken out. ody Burkholder Deposit Operations Analyst 5000 Louise Drive P.O. Box 40 Mechanicsburg, Pennsylvania 17055 (800) 283-2328 wwwmemberslst.org Ronny R Anderson Sheriff Jody S Smith Chief Deputy Edward L Schorpp Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY ~~,,',_~ of 4turt6F~~x~~r~ 201 FE8 ~ 9 ~i~ ~~ S2 i- , ., ;~,,~~, ~~~' Susquehanna Bank I Case Number vs. 2009-8211 Donald H. Erwin Page 1 of 2 SHERIFF'S RETURN OF SERVICE 02/12/2010 10:01 AM -Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on February 12, 2010 at 1001 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: Donald H. Erwin, in the hands, possession, or control of the within named garnishee, Members 1st Federal Credit Union, 1166 Walnut Buttom Road, Carlisle, Cumberland County, Pennsylvania 17015, by handing to Brian M. Peters, Branch Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to him. 02/12/2010 03:04 PM -Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on February 12, 2010 at 1504 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: Donald H. Erwin, in the hands, possession, or control of the within named garnishee, Integrity Bank, 3345 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011, by handing to Josie Arena, Customer Service Representative, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. 02/12/2010 02:56 PM -Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on February 12, 2010 at 1456 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: Donald H. Erwin, in the hands, possession, or control of the within named garnishee, Mid Penn Bank, 2101 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011, by handing to Tabitha Kimmich, Assistant Branch Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. 02/12/2010 10:14 AM -Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on February 12, 2010 at 1014 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: Donald H. Erwin, in the hands, possession, or control of the within named garnishee, M & T Bank, 1 W High Street, Carlisle, Cumberland County, Pennsylvania 17013, by handing to Linda Bowles, Teller, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. 02/12/2010 11:34 AM -Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on February 12, 2010 at 1134 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: Donald H. Erwin, in the hands, possession, or control of the within named garnishee, Citizens Bank, 665 North East Street, Carlisle, Cumberland County, Pennsylvania 17013, by handing to Melissa A. Auman, Teller Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. is ~eu.,«ySuitr 5hen't. l~eleo.=.i;'t Ins. Page 2 of 2 • ' Oft"12/2010 12:48 PM -Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on February 12, 2010 at 1248 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: Donald H. Erwin, in the hands, possession, or control of the within named garnishee, Metro Bank, 65 Ashland Avenue, Carlisle, Cumberland County, Pennsylvania 17013, by handing to Brad Shoop, Assistant Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to him. The writ of execution and notice to defendant was mailed on February 17, 2010 to Donald H. Erwin at 1943 Monterey Drive, Mechanicsburg, PA 17050. So An ers, R n R. Anderson, Sheriff ~~;~O~f1C~. C Amanda Cobaugh, Dep y Sheriff ;~) C.i+nfySuilQ $h{;t iP~ T~:i°:%sofL I;~ti. SUSQUEHANNA BANK, Plaintiff v. DONALD H. ERWIN, Defendant METRO BANK, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. 09-8211 CIVIL ACTION -LAW C ° - -n ~ ~~ ~ ~ ~. ; r w ~ _ , ~~ ~~ ~ LJ1 "~ Garnishee ' INTERROGATORIES TO GARNISHEE TO: Metro Bank 65 Ashland Avenue Carlisle, PA 17013 You are required to file answers to the following interrogatories within twenty (20) days after service upon you. The answers must be in writing and under oath. You are warned that if you fail to do so, a Judgment may be entered against you by the Court without further notice for any money claimed by the Plaintiff against the Defendant. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 SUSQUEHANNA BANK, Plaintiff v. DONALD H. ERWIN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. 09-821 ~ CIVIL ACTION -LAW METRO BANK, To: Metro Bank INTERROGATORIES You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do so may result in judgment against you: 1. At the time you were served or at any subsequent time did you owe the Defendant any money or were you liable to them or any of them on any negotiable or other written instrument, or did they or any of them claim that you owed them or any of them any money or were liable to them or any of them for any reason? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction; the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. v. Garnishee Defendant has account 536179310 held as joint entities with Patricia Fnrin. Defendant has a loan. Defendant did not receive $300 exemption. 2. At the time you were served or at any subsequent time was there in your possession, custody or control or in the joint possession, custody or control of yourself and one or more other persons any property of any nature owned solely or in part by the Defendant? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. See answer to question 1 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in part by the Defendant or in which Defendant held or claimed any interest? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. See answer to question 1 4. At the time you were served or at any subsequent time did you hold as fiduciary any property in which the Defendant had an interest? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. See answer to question 1 5. At any time before or after you were served did the Defendant transfer or deliver any property to you or to any person or place pursuant to your direction or consent and if so what was the consideration therefor? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. See answer to question 1 6. At any time after you were served did you pay, transfer or deliver any money or property to the Defendant or to any person or place pursuant to the direction of them or any of them or otherwise discharge any claim of the Defendant against you? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. no 7. At the time you were served or at any subsequent time., did you have any safe deposit boxes, pledges, documents of title, securities, notes, coupons, certificates, receivables, collateral, checking, savings, tax or other accounts or deposits in which Defendant has an interest? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. no 8. At the time you were served or at any subsequent time, were you a secured party as that term is defined under the Uniform Commercial Code (13 Pa. C.S.A. § 9102)(the "UCC") with respect to the Defendant? If so, explain in detail including, without limitation, providing copies of any security agreement or other record which gives rise to a security interest in any deposit account as that term is defined under the UCC. See answer to question 1 9. Have you agreed with the Defendant and any other secured party that you will comply with instructions originated by such other secured party, without further consent by the Defendant, directing disposition of the fiu~ds in any deposit account maintained by you in an authenticated record as those teams are defined under the UCC? If so, explain in detail including, without limitation, providing copies of any authenticated record which gives rise to control of any deposit account maintained by you. See answer to question 1 These Interrogatories shall be deemed to be continuing Interrogatories. If after the time of your answer, you or anyone acting in your behalf learn or obtain additional information requested, but not supplied in your answers, you shall promptly furnish a supplemental answer under oath containing the same. ._. ,.,. -; ,, ~ ~,. ~~ 1 -~,,. ,' ~ ~, ~ ~~ E ,- T one A. Povbei~ Powell Law, P.C. 301 Market Street Suite 403 Harrisburg, PA 17101 For signature by Garnishee: states, subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, that he/she is authorized by Garnishee to make this affidavit, and that the facts set forth herein are true and correct to the best of his/her knowledge, information and belief. Dated: Metro Barak VERIFICATION The undersigned does hereby verify subject to the penalties of 18 PA. C.S. § 4904 relating to unsworn falsifications to authorities, that he/she is Jennifer Hilbish (Name) Levy_pecialist of Metro Bank, garnishee herein, (Title) (Company) that he/she duly authorized to make this verification, and that the facts set forth in the foregoing Answers to Interrogatories are true and correct to the best of his/her knowledge, information and belief. SUSQUEHANNA BANK, Plaintiff v. DONALD H. ERWIN, Defendant M&T BANK, v. Garnishee 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. 09-821 Q CIVIL ACTION -LAW R,~sw£2.s `To INTERROGATORIES To: M&T Bank ~ o ~ ~ ~ ~;tr ~ ~~ n ~_ s- x, ,_ J 1 ~} ~ ~ N GJ You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do so may result in judgment against you: 1. At the time you were served or at any subsequent time did you owe the Defendant any money or were you liable to them or any of them on any negotiable or other written instrument, or did they or any of them claim that you owed them or any of them any money or were liable to them or any of them for any reason? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. 2. At the time you were served or at any subsequent time was there in your possession, custody or control or in the joint possession, custody or control of yourself and one or more other persons any property of any nature owned solely or in part by the Defendant? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. ~~ 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in part by the Defendant or in which Defendant held or claimed any interest? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. V~ 4. At the time you were served or at any subsequent time did you hold as fiduciary any property in which the Defendant had an interest? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. {~' 5. At any time before or after you were served did the Defendant transfer or deliver any property to you or to any person or place pursuant to your direction or consent and if so what was the consideration therefor? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. ~~ 6. At any time after you were served did you pay, transfer or deliver any money or property to the Defendant or to any person or place pursuant to the direction of them or any of them or otherwise discharge any claim of the Defendant against you? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of considerationn given for any transfer of property. V~ 7. At the time you were served or at any subsequent time, did you have any safe deposit boxes, pledges, documents of title, securities, notes, coupons, certificates, receivables, collateral, checking, savings, tax or other accounts or deposits in which Defendant has an interest? If so, explain in detail including, without limitation, the names and addresses of all persons or entities taking part in any transaction, the specific amount of the debt, the value and location of any property and the amount of consideration given for any transfer of property. ~-~1e L.~~~ Q C~ cc~.-~ -~- - >7 ~ rZ S-~^~=e.~:r1~" - u ~1c~-e.~1 8. At the time you were served or at any subsequent time, were you a secured party as that term is defined under the Uniform Commercial Code (13 Pa. C.S.A. § 9102)(the "UCC") with respect to the Defendant? If so, explain in detail including, without limitation, providing copies of any security agreement or other record which gives rise to a security interest in any deposit account as that term is defined under the UCC. ~~ 9. Have you agreed with the Defendant and any other secured party that you will comply with instructions originated by such other secured party, without further consent by the Defendant, directing disposition of the funds in any deposit account maintained by you in an authenticated record as those terms are defined under the UCC? If so, explain in detail including, without limitation, providing copies of any authenticated record which gives rise to control of any deposit account maintained by you. ~~ These Interrogatories shall be deemed to be continuing Interrogatories. If after the time of your answer, you or anyone acting in your behalf learn or obtain additional information requested, but not supplied in your answers, you shall promptly furnish a supplemental answer under oath containing the same. .~ r~' :' ; ' ~ ~~' T ne A. Powell -~~ Powell Law, P.C. 301 Market Street Suite 403 Harrisburg, PA 17101 For signature by Garnishee: Q-t- , ~ ~~ states, subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, that he/she is authorized by Garnishee to make this affidavit, and that the facts set forth herein are true and correct to the best of his/her knowledge, information and belief. Dated:`, (~ -p ~° , \.~-,~~~-~ M&T Bank M&T ~!~~K Tax Parcel No. 10-14-0844-049 RELEASE OF JUDGMENT LIEN AGAINST 6275 Peregrine Way Mechanicsburg, Cumberland County, Pennsylvania, 17050 Lienholder: Judgment dated November 25, 2009 Cumberland County, Pennsylvania SUSQUEHANNA BANK Upon premises located in the Hampden Township, Cumberland Co8nty, "-o , to Pennsylvania Debtor: DONALD H. E.RWIN ; -" Judgment Liens Docket No. Amount of u4a grRVnt Susquehanna Bank v. Donald H. Erwin No. 09-8211 $8,412,102.15 FOR VALUE RECEIVED, and intending to be legally bound, SUSQUEHANNA BANK, hereby remises, releases, exonerates and discharges the following tract(s) or parcel(s) of land and any improvements therein or thereon from the liens above: ALL THAT CERTAIN tract or parcel of land known as 6275 Peregrine Way, Mechanicsburg, Pennsylvania, Hampden Township, Cumberland County, Pennsylvania, more particularly described as Lot 53 in Plan Book 93, Page 107 recorded in the Cumberland County Recorder of Deeds Office. PROVIDED, always, nevertheless, that neither this Release nor anything contained herein shall in any way or at any time be or be construed to be evidence of payment, satisfaction or discharge of the debt secured by said judgments, or to affect, alter or diminish the remedies at law for recovering the principal sum and interest and other charges secured by said judgments from any person or entity who or which has not been expressly released from liability therefor. WOO bo P !nnTra.n-4&LLQ c? aeRl (A2117435:1) +A -V. -7 WITNESS the due execution hereof this day of September, 2010 LIENHOLDER: SUSQUEHANNA BANK By COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF James O0?Id Senior Vie P-ki On this, the 'fay of September, 2010, before me, a Notary Public in and for the above-named Commonwealth and County, the undersigned officer, personally appeared James Oswald, who acknowledged himself to be the Senior Vice President of SUSQUEHANNA BANK, a corporation, and that he as such officer, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the corporation by himself as such officer. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. My commission expires (Seal) NOTARIAL SEAL FREDERICK T BURKETT fit Notary Public EAST EARL TWP, LANCASTER CNTY My Commission Expires Aug 25, 2012 (A2117435:1) SUSQUEHANNA BANK, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. CASE NO. 09-8211 - ~ --,~ DONALD H. ERWIN, -~, ~, ~ Defendant :CIVIL ACTION -LAW ? '~, o r :~, `'~ to ~ ~ .... Ty ~ -~- ~ ~~ ` ~ J ASSIGNMENT OF JUDGMENT °'`~' ..~ -=~ ~a ^w'1 `~'~' ~~~== :; terra AND NOW, this 1st day of October, 2010, Susquehanna Bank, located at~ 5 7~4> Manheim Pike, Lancaster, PA 17604, for good and valuable consideration, the receipt of which is hereby acknowledged, hereby assigns all rights, title and interest in the judgment obtained against Donald H. Erwin docketed at case number 09-8211 in the Court of Common Pleas of Cumberland County to Lititz Properties, LLC, located at 1570 Manheim Pike, Lancaster, PA 17604. Susquehanna Bank ~~ By: Name: ymond ranger Title: nior Vic resident Lititz Properties, LLC ~~ By: ~- N e: and nger Title: V' Presid t 5~-,odd ~~- ~N~c ~ ~,1~„t tlic %~1y~3s~ i SHERIFF'S OFFICE OF CUMBERLAND C UN I T Ronny R Anderson :a Sheriff r Jody S Smith ?' ire t'.= Chief Deputy Richard W Stewart Solicitor Case Number Susquehanna Bank 2009-8211 vs. _ Donald H. Erwin SHERIFF'S RETURN OF SERVICE r ghtsSdebts, on commuanded all goods,' chattelsto law, state that 02/12/2010 10:01 AM -Amanda Cobaugh, Deputy Sheriff, as here being February 12, 2010 at 1001 hours, attached credits, and monies of the within named defendant, to wit: Donald H. Erwin, n the hands, possession, or 'on 166 nl( control of the within named garnis nseb 7015 tby Federal handingrtoIBnan M.1f etervs,, BrancBhuMan Road, Carlisle, Cumberland County, Pe ylvania personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to him. JI 03:04 PM -Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to l s,,ri states thats,n 02/12/2010 February 12; 2010 at 1504 hours, attached as herein commanded a goods, credits, and monies of the defendant, to wit: Integrity Bank, 3346 MarkeHSEeeIt i amthe p Haln Cds, umberland possession, or control of the within named garnishee, County, Pennsylvania 17011, by handing to Josie Arena, Customer Service Representative, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. 02/12/2010 2:56 PM - Amanda 1456 hours, attached as herein clomm nded all goods! chattels, rights, debts, on February 12, 2010 at 1456 credits, and monies of the within named defendant, to wit: Donald H. Erwin in the hands, Cumberland ' or control of the within named garnishee, Mid Penn Bank, 2101 Market Stree , Camp H ererl all 'three County. Pennsylvania 170'11, by handing to Tabitha Kimmich, Assistant Branch Manager, p y copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. 02/12/2010 b ry 2, 2010 at 014uhourrs, attached as here b commanded all goods, l chato law, states that ttels, rights, debts, on February 12, 20 credits, and monies of the within named defendant, to wit: Donald N Erwi i, in the hands, possession, or control of the within named garnishee, M & T Bank, 1 W High Street, Carl sle, Cumberland County, Pennsylvania 17013, by handing to Linda Bowles, Teller, personally three copies of interrogtthere of known } together with three true and attested copies of the writ of execution an ?? to her. credits, to law, states that on 02/12/2010 Febr ry 1Amanda 010 a 1 34 hourrs, attached ras here becomm commanded all goods, ? g chattels, rights, debts Fe dies, and monies of the within named defendant, to wit: Donald H. Erwin, in the hands, possession, or control of the within named garnishee, Citizens Bank, 665 North East Street, Carlisle, Cumberland County, Pennsylvania 17013, by handing to Melissa A. Auman, Teller Ma ager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known 'to her. if d ;t Cc }" Sw1,c Tel' J't. In 02/12/2010 12:48 PM -Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on February 12, 2010 at 1248 hours, attached as herein commanded aH. Er, in ll govovds, the handshts, d ests, or credits, and monies of the within named defendant, to wit: Metro Bnk, 65 Ashland ue, Carlisle control of the within named 9ito Brad Shoopa Assistant Manager npersonal y three copieas ofCounty, Pennsylvania 17013, by handing interrogatories together with ith three true and attested copies of the writ of exec tion and made the contents there of known to him. The writ of execution and notice to defendant was mailed on February 17, 20 0 to Donald H. Erwin at 1943 Monterey Drive, Mechanicsburg, PA 17050. 11/02/2010 Ronny R. Anderson, Sheriff, w action on duly sworn writ in over 6 riling to law, states this writ of execution is returned as ABANDONED No SHERIFF COST: $435.41 November 02, 2010 SO ANS ANDERSON, SHERIFF . Lan M. Inc WRTI7 OF EXECUTION and/or ATTACHMENT I COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND;) NO 09-821 Civil nv L ACTION - LAW HERIFF OF CUMBERLAND COUNTY: TOTHES 17 To satis? the debt, interest and costs due SUSQUEHANNA BANK, PA 1 From DONALD H. ERWI?'", 1943 Monterey Drive, defendant (s)and to sell upon the property of the d (1) You are directed to levy fthe defendant(s) not levied up< of (2) You are also directed to attach the property of GARNISHEE(S) as follows: M&T BANK, 1 West High Street, Carlisle, PA 17013 CITIZENS BANK, 665 North East Street, Carlisle, PA 17013 Camp Hill, PA 17011 INTEGRITY BANK, 3345 Market Street, Hill, P 17011 MID PENN BANK, 2101 Market Street, Camp Carlisle, PA 17013 MEMBERS 1sT, 1166 Walnut Bottom Road, METRO BANK, 65 Ashland Avenue, Carlisle, PA 17013 *Levy upon any personal property of Defendant the garnishee(s) that: (a) an attachment has been issued; (b) the gay and to notify g paying any debt to or for the account of the defendant (s) and from delivering a: (s) or otherwise disposing thereof; (3) not levied upon an subject to attachment is If property of the defendant(s) of anyone other than a named garnishee, you are directed to notify him/her that garnishee and is enjoined as above stated. L.L. $.50 Amount Due $ $A1&,I05 - 15 Interest Atty' s Comm % Atty Paid $54.50 Plaintiff Paid Date: 1129/10 (Seal) REQUESTING PARTY: Name TYRONE A. POWELL, ESQUIRE Address: POWELL LAW 301 MARKET STREET, SUITE 403 HARRISBURG, PA 17101 Attorney for: PLAINTIFF Telephone 717-236-6666 Supreme Court ID No. Due Prothy $2.00 Other Costs David D. By: and (s) 0 i in the possession shee,(s) is enjoined from property of the defendant ind in the possession /she has been added as a II 1E COPY FROrNi RECORD Ony%,hereuf, i here unto sot my hand eal of paid Court at Gartisle; Pa. 4 ci of .1. , 20 14 1 \ ProthonotarY T 4`Er PP,? {" ; I J Clayton W. Davidson, Esquire PA Attorney I.D. No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: (717) 232-8000 Direct Fax: (717) 260-1678 cdavidson(c?mwn.com Attorneys for Plaintiff SUSQUEHANNA BANK, Plaintiff V. DONALD H. ERWIN, Defendant rUI 9 uN 14 AM II: ?7 IUIMDEP,LAh D CM'41- P EN SYLVAr" 1?. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CASE NO. 09-8211 : CIVIL ACTION -LAW PRAECIPE TO SATISFY JUDGMENT, DISCONTINUE ACTION AND DISSOLVE ALL WRITS AGAINST DONALD H. ERWIN TO: THE PROTHONOTARY OF CUMBERLAND COUNTY Please mark the judgment entered in the above captioned case as satisfied, discontinue the action with prejudice and dissolve any and all writs against Donald H. Erwin. McNEES WALLACE & NURICK LLC Date: June 13, 2011 By Clayton W. idson, Esquire Attorney I. . No. 79139 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Lititz Properties, LLC as assignee from Susquehanna Bank CERTIFICATE OF SERVICE I, Clayton W. Davidson, hereby certify that a true and correct copy of the foregoing Praecipe was served by first class, U.S. Mail upon the following: Robert E. Chernicoff, Esquire Cunningham & Chernicoff, PC 2320 North 2nd Street Harrisburg, PA 17110 Counsel for Defendant Date: June 13, 2011 --z Clayton W. vidson