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HomeMy WebLinkAbout09-8512BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK 1900 E. 9th Street (B7-YB13-22-1) Cleveland, OH 44114 Plaintiff, V. GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank COURT OF COMMON PLEAS CUMBERLAND COUNTY No: bq - 851a Civil Terh CONFESSION OF JUDGMENT Defendant. FOR POSSESSION OF REAL PROPERTY APPEARANCE AND CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the complaint filed in this action, I appear for the defendant Gray Drive, LP and confess judgment in ejectment in favor of the Plaintiff PNC Bank, National Association, as successor to National City Bank and against the Defendant Gray Drive, LP for possession of' the real property described in the Complaint for Confession of Judgment for. Possession of Real Property. BLANK RO By: Fvdiicis X. Crowl Lev Kalman, Esq BLANK ROME LLP 4 Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK COURT OF COMMON PLEAS 1900 E. 9th Street (B7-YB13-22-1) CUMBERLAND COUNTY Cleveland, OH 44114 Plaintiff, V. GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 No: CONFESSION OF JUDGMENT Defendant. FOR POSSESSION OF REAL PROPERTY COMPLAINT FOR CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY Plaintiff, PNC Bank, National Association, as successor to National City Bank ("National City") by and through its attorneys, Blank Rome LLP, hereby files this Complaint for Confession of Judgment for Possession of Real Property pursuant to Pennsylvania Rules of Civil Procedure Nos. 2970 et seq. and sets forth the following: The Plaintiff is PNC Bank, National Association, as successor to National City Bank, a federally chartered banking institution with offices at 1900 E. 9th Street (B7-YB13-22- 1), Cleveland, OH 44114. 2. The Defendant, Gray Drive, LP ("Gray Drive"), is a Pennsylvania limited partnership located at 76 Emlyn Drive, Mechanicsburg, Pennsylvania 17055. The Defendant Gray Drive first executed a Mortgage Note dated October 28, 2004 (the "Mortgage Note"), and by that instrument agreed to repay a $19,200,000.00 Construction Loan to Plaintiff. The Mortgage Note, which is attached hereto as Exhibit "A.," required payment of monthly interest beginning on December 1, 2004, and required repayment of the loan upon a maturity date of October 31, 2007. 4. The Note was signed by Gray Griffin LLC (by Hugh J.T. Simpson, its Managing Member) as the General Partner of Gray Drive. 5. On October 28, 2004, Gray Drive executed an Open-Ended Mortgage And Security Agreement (the "Mortgage"). The Mortgage was signed by Gray Griffin LLC (by Hugh J.T. Simpson, its Managing Member) as the General Partner of Gray Drive. A true and correct copy of the Mortgage is attached hereto as Exhibit "B." 6. The Mortgage secured Gray Drive's obligations under the Mortgage Note and gave National City a security interest in property located in Upper Allen Township, Cumberland County, Pennsylvania, which was owned by Gray Drive and which was more specifically described at Exhibit A to the Mortgage (the "Property"). Exhibit A of the Mortgage is incorporated herein by reference and is separately attached hereto as Exhibit "C." 7. The property in which National City has a security interest pursuant to the Mortgage is described as follows: COMBINATION OF LOT 1, LOT 2, AND PROPOSED RIGHT- OF-WAY ALL THAT CERTAINparcel ofground known as the combination of Lot 1, Lot 2, and the proposed English Drive/Gray Drive right-of-way as shown on a plan entitled "Final Subdivision and Land Development Plan for Graham Hill Apartments " recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page 5 on March 20, 2002, located in the Township of Upper Allen, within the County of Cumberland, in the 2 Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT: Beginning at a point on the eastern side of the Eighty foot (80 ) right-of-way of South Market Street (S.R. 0114) at the southwest corner of lands now or formerly of Fulton J. and Colleen Kennedy as recorded in Deed Book 181 page 1042; Thence along said lands of Kennedy the following three (3) courses: 1) South Eighty-nine Degrees Four Minutes Thirty-five Seconds East (S 89°04'35" E) a distance of Four Hundred Seventy-nine and Eighty-nine Hundredths feet (479.89) to a '/2 " rebar found; 2) South Fourteen Degrees Twenty-five Minutes Nine Seconds East (S 14°25'09" E) a distance of Two Hundred Eighty-seven and Sixty-nine Hundredths feet (287.69) to an iron pipe with tack found; 3) North Fifty-eight Degrees Thirty-six Minutes Fifty-three Seconds East (N 58°36'53 " E) a distance of One Hundred Sixty- seven and Forty-three Hundredths feet (167.43 ) to a `/2 " rebar found at lands now or formerly of Waren and Mary Persak as recorded in Deed Book 107 page 146; Thence along said lands now or formerly of Waren and Mary Persak and continuing along lands now or formerly of Gary A. and Judy Dambach as recorded in Deed Book 130 page 892 South Twenty-five Degrees Thirty-nine Minutes Three Seconds East (S 25°39'03 " E) a distance of Two Hundred Eighty and Nineteen Hundredths feet (280.19 ) to a % " rebar found at lands now or formerly of David and Gina Jablomski as recorded in Deed Book 101 page 930; Thence along said lands now or formerly of David and Gina Jablomski South Forty-four Degrees Twenty-five Minutes Thirty- five Seconds East (S 45°25'35E) a distance of Seventy and Zero Hundredths feet (70.00 ) to a 1/z " rebar found at lands now or formerly of John and Eileen Difonzo as recorded in Deed Book 105 page 689; Thence along said lands now or formerly of John and Eileen Difonzo South One Degree Eighteen Minutes Fifteen Seconds West (S 01'18'15 " W) a distance of Seventy-seven and Forty-four Hundredths feet (77.44 ) to a 1/Z " rebar found at lands now or formerly of Ralph and Gail Palmer as recorded in Deed Book 195 page 452; 3 Thence along said lands now or formerly of Ralph and Gail Palmer South Seven Degrees Fifty-six Minutes Sixteen Seconds East (S 07°56'16" E) a distance of Seventy-five and Thirty-eight Hundredths feet (75.38 ) to a M2 " rebar found at lands now or formerly of Mathew J. and Carole R. Brown as recorded in Deed Book 180 page 1003; Thence along said lands now or formerly of Mathew J. and Carole R. Brown South One Degree Fifty Minutes Forty-two Seconds East (S 01 °50'42 " E) a distance of Eighty-three and Fitly-five Hundredths feet (83.55 ) to a M2 " rebar found at lands now or formerly of Phillip and Barbara Cain as recorded in Deed Book 126 page 1184; Thence along said lands now or formerly of Phillip and Barbara Cain the following two (2) courses: 1) South Twenty-three Degrees Fifty-one Minutes Sixteen Seconds West (S 23°51'16 W) a distance of Fifty-three and Fifty- six Hundredths feet (53.56) to a % " rebar found; 2) South Sixty-two Degrees Five Minutes Twenty-two Seconds West (S 62°05'22" W) a distance of Fifty-three and-Seventy-eight Hundredths feet (53.78 ) to a %z " rebar found at lands now or formerly of Gene and Lorie Below as recorded in Deed Book 111 page 356; Thence along said lands now or formerly of Gene and Lorie Below South Twenty-nine Degrees Forty-four Minutes Forty-nine Seconds West (S 29°44'49" W) a distance of One Hundred One and Fifty Hundredths feet (101.50) to a % " rebar found at lands now or formerly of Deborah Witcomb as recorded in Deed Book 204 page 778; Thence along said lands now or formerly of Deborah Witcomb South Sixteen Degrees Twenty Minutes Fifty-one Seconds West (S 16°20'51 " YTS a distance of Eighty-three and Ninety-seven Hundredths feet (83.97 ) to a point at lands now or formerly of Arlington Hills Homeowners as recorded in Deed Book 30 X page 514; Thence along said lands now or formerly of Arlington Hills Homeowners the following four (4) courses: 1) North Sixty-one Degrees Thirty-six Minutes Nine Seconds West (N 61'36'09 " W) a distance of One Hundred Thirty-five and Sixty-three Hundredths feet (135.63 ) to a point; 2) By a curve to the right having a radius of Three Hundred Twenty-six and Fifty-six Hundredths feet (326.56 ) an arc length of 4 One Hundred Fifty-five and Fifty-three Hundredths feet (155.53 ), said curve having a chord bearing South Fifty-five Degrees Fifty- seven Minutes Five Seconds West (S 55°57'05" W) and a chord length of One Hundred Fifty-four and Six Hundredths feet (154.06) to a point; 3) By a curve to the left having a radius of Twenty-five and Thirty-eight Hundredths feet (25.38 ) an arc length of Thirty and Fifty-eight Hundredths feet (30.58'), said curve having a chord bearing of South Thirty-five Degrees Four Minutes Forty-four Seconds West (S 35°04'44" W) and a chord length of Tiventy-eight and Seventy-six Hundredths feet (28.76 ) to a point; 4) South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43" W) a distance of Twenty-eight and Seventy-four Hundredths feet (28.74 ) to a point at lands now or formerly of Geir Magnusson as recorded in Deed Book 215, page 268; Thence along the northern side of a Sixty foot (60 ) right-of-way of English Drive North Eighty-nine Degrees Twenty-six Seconds Seventeen Seconds West (N 89°26'17" W) a distance of Thirty and Zero Hundredths feet (30.00) to a point on said right-of-way; Thence along the same South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43 " W) a distance of Twenty- two and Twenty-two Hundredths feet (22.22 ) to a point on the same; Thence continuing along said right-of-way North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89112'09 W) a distance of Thirty and Five Hundredths feet (30.05) to a " rebar found at lands now or formerly of Janet Cross as recorded in Deed Book 199 page 882; Thence along said lands now or formerly of Janet Cross North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89°12'09" W) a distance of One Hundred Fifteen and Twenty- eight Hundredths feet (115.28 ) to a '/2 " rebar found; Thence along the same and continuing along lands now or formerly of Keith and Joyce Sealover as recorded in Deed Book 172 page 85, lands now or formerly of Scott and Carol Moser as recorded in Deed Book 198 page 555, lands now or formerly of Harry T. Dunn as recorded in Deed Book 31 X page 895, lands now or formerly of Joe and Sue Peck as recorded in Deed Book 31-Ypage 77, lands now or formerly of Phillip Sullivan 11, lands now or formerly of Michael DeJoseph as recorded in Deed Book 36-R page 583, lands now or formerly of Michelle L. Nissly as 5 recorded in Deed Book 35-L page 1112, lands now or formerly of Normann L. Bilodeau as recorded in Deed Book 228 page 89, and lands now or formerly of Patrick J. and Gloria J. Duffy as recorded in Deed Book 162 page 336 South Zero Degrees Forty Minutes Forty-nine Seconds West (S 00°40'49" W) a distance of Two Hundred Seventy-eight and Thirty-four Hundredths feet (278.34) to a point at lands now or formerly of Amy E. Bankes as recorded in Deed Book 150 page 837; Thence along said lands now or formerly of Amy E. Bankes and continuing along lands now or formerly of Susan Jamieson as recorded in Deed Book 142 page 190 South Eleven Degrees Forty- two Minutes Zero Seconds East (S 11'42'00 " E) a distance of Seventy-two and Ninety-six Hundredths feet (72.96 ) to a point at lands now or formerly of Anthony T. and Marianne Intreri as recorded in Deed Book 103, page 309; Thence along said lands now or formerly of Anthony T. and Marianne Intreri South Seventy-eight Degrees Eighteen Minutes Zero Seconds West (S 78°18'00" W) a distance of Seventy-eight and Twenty-eight Hundredths feet (78.28 ) to a point at lands now or formerly of Hostetter Family Trustees as recorded in Deed Book 109, page 1029; Thence along said lands now or formerly of Hostetter Family Trustees North Seven degrees Ten Minutes Seventeen Seconds West (N 07°10'17" 99 a distance of Two Hundred Thirty-seven and Sixty-nine Hundredths feet (237.69 ) to an iron pipe found at lands of the same; Thence along the same and continuing along lands now or formerly of James C. and Patricia A. Wolf as recorded in Deed Book 32 X page 48 North Twelve Degrees Forty-nine Minutes Thirty-three Seconds West (N 12°49'33 " W) a distance of Two Hundred Forty-one and Thirty-eight Hundredths feet (241.38) to a point at lands now or formerly of Gray Drive LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive LP the following Three (3) courses: 1) North Fifty-three Degrees Thirteen Minutes Sixteen Seconds East (N 53'13'16" E) a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13 ) to a point; 2) North Sixteen Degrees Zero Minutes Forty Seconds West (N 16°00'40" W) a distance of One Hundred Thirty and Forty-six Hundredths feet (130.46) to a point; 6 3) South Sixty-eight Degrees Twenty-three Minutes Zero Seconds West (S 68°23'00" W) a distance of Three Hundred Three and Forty-four Hundredths feet (303.44 ) to a point on the eastern side of the Fifty foot (50) right-of-way of Gray Drive; Thence along said right-of-way North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Twenty-four and Ninety-five Hundredths feet (24.95 ) to a point on the same; Thence along the same North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47"E) a distance of Four and Forty-four Hundredths feet (4.44 ) to a point (said course inadvertently not labeled on the above referenced recorded drawing for Graham Hill Apartments); Thence by a curve to the left having a radius of Three Hundred Thirty-eight and Ninety-five Hundredths feet (338.95 ) an are length of Ninety-three and Three Hundredths feet (93.03 ), said curve having a chord bearing of North Five Degrees Twenty-six Minutes One Second West (N 05°26'01 " W) and a chord length of Ninety-two and Seventy-four Hundredths feet (92.74 ) to a point on the same; Thence by a curve to the left having a radius of One Hundred Fifty and Zero Hundredths feet (150.00 ) an arc length of Thirty-three and Twenty-nine Hundredths feet (33.29 ), said curve having a chord bearing of South Fifty-two Degrees Sixteen Minutes Twelve Seconds West (S 52°16'12 " W) and a chord length of Thirty-three and Twenty-two Hundredths feet (33.22 ) to a point (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an arc length of Seventy-seven and Eighty- nine Hundredths feet (77.89 ), a chord bearing of South Fifty-eight Degrees Thirty-seven Minutes Forty-two Seconds West (S 58°37'42 " W), and a chord distance of Seventy-seven and Two Hundredths feet (77.02')); Thence by a curve to the left having a radius of Three Hundred Thirteen and Ninety-five Hundredths feet (313.95 ) an arc length of Seventy-four and Seventy-eight Hundredths feet (74.78 ), said curve having a chord bearing of North Sixteen Degrees Sixteen Minutes Thirty-five Seconds West (N 16°16'35 " W) and a chord length of Seventy-four and Sixty Hundredths feet (74.60 ) to a nail found (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an arc length of One Hundred Thirty-nine and Eighty-nine Hundredths feet (139.89 ), a chord bearing of North Ten Degrees Twenty Minutes Seven Seconds West (N 10°20'07" W), and a chord distance of One Hundred Thirty-eight and Seventy-four Hundredths feet (138.74 )); 7 Thence North Twenty-three Degrees Eight Minutes Ten Seconds West (N 23°08'10" W) a distance of Sixty-nine and Eighty-six Hundredths feet (69.86 ) to a railroad spike found within South Market Street (S.R. 0114); Thence South Seventy-eight Degrees Thirty-one Minutes Twenty- four Seconds East (S 78°31 '24 " E) a distance of Thirty-nine and Seventy Hundredths feet (39.70 ) to a concrete monument found on the eastern side of the Eighty foot (80 ) right-of-way of South Market Street (S.R. 0114); Thence along the eastern side of said right-of-way by a curve to the left having a radius of One Thousand Nine Hundred Fifty and Eight Hundredths feet (1, 950.08) an arc length of Five Hundred Forty-four and Eighty-eight Hundredths feet (544.88 ), said curve having a chord bearing of North Four Degrees Forty-four Minutes Thirty-eight Seconds West (N 04°44'38" W) and a chord length of Five Hundred Forty-three and Eleven Hundredths feet (543.11 ) to a point on the same at the southwest corner of lands now or formerly of Fulton J. and Colleen Kennedy as recorded in Deed Book 181 page 1042, the PLACE OF BEGINNING. The above described tract being known as the combination of Lot 1, Lot 2, and the proposed English Drive/Gray Drive right-of-way of the above referenced plan of Graham Hill Apartments, and containing Fifteen and Thirty-five Hundredths Acres, more or less (15.35 Acres +/-). LOT 3A & LOT 3B COMBINED ALL THAT CERTAINparcel ofground known as the combination of lots Lot 3A and Lot 3B as shown on a plan entitled "Final Subdivision and Land Development Plan for Graham Hill Apartments " recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page 5 on March 20, 2002, located in the Township of Upper Allen, within the County of Cumberland, in the Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT: Beginning at a point on the eastern side of the Fifty foot (50 right-of-way of Gray Drive at the northern line of lands now or formerly of James C. & Patricia A. Wolf as recorded in Deed Book 32-X, page 48; Thence along the eastern right-of-way of Gray Drive the following four (4) courses: 1) North Two Degrees Twenty-two Minutes Fifty-five Seconds East (N 02°22'55" E) a distance of Ninety-nine and Seventy-seven Hundredths feet (99.77) to point; 8 2) North Two Degrees Twenty-two Minutes Fifty-five Seconds East (N 02°22'55" E) a distance of One Hundred and Sixty-nine Hundredths feet (100.69 ) to a point; 3) North Two Degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Eleven and Twelve Hundredths feet (11.12) to point; 4) North Two Degrees Twenty-five Minutes Forty-seven Seconds. East (N 02°25'47" E) a distance of Sixteen and Forty- two Hundredths feet (16.42) to point at lands now or formerly of Gray Drive, LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive, LP the following three (3) courses: 1) North Sixty-eight Degrees Twenty-three Minutes Zero Seconds East (N 68°23 '00 " E) a distance of Three Hundred Three and Forty-four Hundredths feet (303.44 ) to a point; 2) South Sixteen Degrees Zero Minutes Forty Seconds East (S 16°00'40" E) a distance of One Hundred Thirty and Forty-six Hundredths feet (130.46) to a point; 3) South Fifty-three Degrees Thirteen Minutes Sixteen Seconds West (S 53'13'16" W) a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13 ) to a point at lands now or formerly of James C. & Patricia A. Wolf as recorded in Deed Book 32-X, page 48; Thence along said lands now or formerly of James C. & Patricia A. Wolf South Eighty Degrees Seven Minutes Thirty-nine Seconds West (S 80°07'39 " W) a distance of Seventy-three and Forty-two Hundredths feet (73.42 ) to a point on the eastern side of the Fifty foot (50) right-of-way of Gray Drive, the PLACE OF BEGINNING. The above described tract being known as the combination of lots Lot 3A and Lot 3B of the above referenced Plan of Graham Hill Apartments and containing One and Thirty-seven Hundredths Acres, more or less (1.37 Acres +/-). ALL OF THE FOREGOING BEING a combination of the following: the premises which Gray Drive, LP, by virtue of a deed from Greenville Agricultural Credit Corporation, a North Carolina Corporation, dated 12117199 and recorded 12/27/99 in Cumberland County Deed Book 213, Page 940, and 9 the premises which Gray Drive, LP, by virtue of a deed from Richard E. Mowery and Roberta L. Mowery, dated 09120101 and recorded 09121101 in Cumberland County Deed Book 248, Page 2326, and the premises which Gray Drive, LP, by virtue of a deed from Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter Day Saints, a Utah Corporation, dated 11/12/01 and recorded 12110/01 in Cumberland County Deed Book 249, Page 2691. 8. The Mortgage contained a clause authorizing National City to confess judgment for possession of the Property and for ejectment of Gray Drive after an Event of Default thereunder. The Mortgage states as follows: 6.3 Taking Possession or Control of the Property. Mortgagee personally, or its agents or attorneys, may enter into and upon all or any part of the Property, and each and every part thereof, and may exclude the Mortgagor, its agents and servants wholly therefrom without liability for trespass, damages or otherwise and Mortgagor agrees to surrender possession to Mortgagee on demand after the happening of any Event of Default; and having and holding the same, may use, operate, manage and control the Property and conduct the business thereof, either personally or by its superintendents, managers, agents, servants, attorneys or receivers... FOR SUCH PURPOSES MORTGAGOR HEREBY AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR MORTGAGOR TO SIGN AN AGREEMENT FOR ENTERING AN ACTION OF EJECTMENT FOR POSSESSION OF THE PROPERTY, AND TO CONFESS JUDGMENT THEREIN AGAINST MORTGAGOR IN FAVOR OF MORTGAGEE, WHEREUPON A WRIT MAY FORTHWITH ISSUE FOR THE IMMEDIATE POSSESSION OF THE PROPERTY, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER; AND FOR SO DOING THIS MORTGAGE OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. 10 9. Under the Mortgage, an Event of Default thereunder, which would permit National City to exercise the remedies therein, occurred upon any Event of Default under the Mortgage Note and the Amendments thereto. As described in greater detail herein, an Event of Default occurred under the Mortgage Note and the amendments thereto which permit National City to confess judgment for possession of the Property pursuant to the remedies authorized. by the Mortgage. 10. On January 24, 2008, Gray Drive entered into a First Amendment to Mortgage Note (the "First Amendment") which affirmed the terms of the Mortgage Note and extended the original Maturity Date set forth in the Note to August 31, 2008. The First Amendment is attached hereto as Exhibit "D." 11. On that same date, Gray Drive executed a First Modification to the Mortgage ("First Modification"), a true and correct copy of which is attached hereto as Exhibit "E." 12. Gray Drive explicitly acknowledged that the Mortgage Note and Mortgage, as amended, contained confession of judgment clauses by which it was bound pursuant to those documents and pursuant to the First Amendment and First Modification. 13. On January 24, 2008, Gray Drive executed a document entitled Notice of Waiver of Rights Regarding Warrants of Attorney, Execution Rights, and Waiver of Rights to Prior Notice and Judicial Hearing (the "Waiver"). The Waiver is attached hereto as Exhibit "F" and acknowledged National City's then-existing (and continuing) right to confess judgment against Gray Drive. 14. On August 28, 2008, Gray Drive entered into a Second Amendment to Mortgage Note (the "Second Amendment") which affirmed the terms of the original Mortgage Note and 11 extended the original Maturity Date set forth in the Mortgage Note. The Second Amendment is attached hereto as Exhibit "G." 15. On that same date, Gray executed the Second Modification to the Mortgage ("Second Modification"), a true and correct copy is attached hereto as Exhibit "H." 16. Gray Drive explicitly acknowledged that the Mortgage Note and Mortgage contained confession of judgment clauses by which it was bound pursuant to those documents and pursuant to the Second Amendment and the Second Modification. 17. On August 28, 2008, Gray Drive executed a document entitled Notice of Waiver of Rights Regarding Warrants of Attorney, Execution Rights, and Waiver of Rights to Prior Notice and Judicial Hearing (the "Second Waiver"). The Second Waiver is attached hereto as Exhibit "I" and acknowledged National City's then-existing (and continuing) right to confess judgment against Gray Drive. 18. On March 27, 2009, Gray Drive executed an "Extension of Second Amendment to Mortgage Note, With Consent Of Guarantors" (the "Extension Agreement"), which extended the maturity date of the Mortgage Note to July 31, 2009 ("Maturity Date"). The Extension Agreement is attached hereto as Exhibit "J." 19. The Extension Agreement acknowledged that all terms of the Second Amendment remained in full force and effect until the Maturity Date. 20. Gray Drive failed to pay the scheduled payments as they became due, and failed to pay the Mortgage Note, as amended, in full on the Maturity Date, as was required under the Mortgage Note, its amendments and the Extension Agreement. The failure to pay constituted an Event of Default under the Mortgage Note, its amendments, and the Mortgage. 12 21. On August 24, 2009, a Default Letter was sent to Gray Drive addressed to Hugh Simpson's attention. The Default letter, which is attached hereto as Exhibit "K," complied with the notice requirements of the Mortgage and affirmed that the Extension Period, as defined in the Extension Agreement, expired by its terms on July 31, 2009 and the principal balance remaining due on the Mortgage Note was, as of that date, $18,961,344.62 plus accrued interest and other charges. 22. Gray Drive failed to pay amounts due to National City as they became due on the Mortgage Note on its Maturity Date, as required by the Mortgage Note and the amendments and extensions thereto. 23. Gray Drive's failure to pay the indebtedness when it became due constitutes an Event of Default pursuant to Section 6(i) of the Mortgage Note and constitutes an Event of Default under the Mortgage. 24. By letter dated October 29, 2009, a copy of which is attached hereto as Exhibit "L," Plaintiff demanded possession of the Property in accordance with the terms of the Mortgage and related documents, effective Monday, November 2, 2009, but Defendant advised National City Bank on October 30, 2009 that it refused to turnover possession or control of the Property, constituting a further Event of Default. 25. The Mortgage, Mortgage Note and their amendments and modifications contain and show Defendant Gray Drive's signature in execution of the same by its duly authorized representatives or representative. 26. The Mortgage, Mortgage Note, and their amendments and modifications authorize confession of judgment for possession of the Property against the Defendant Gray 13 Drive after a default under the Mortgage or the Mortgage Note and their amendments and modifications as has occurred here. 27. National City is authorized to confess judgment for possession of the herein- described property as a result of Gray Drive's defaults under the Mortgage Note. 28. In agreeing to the aforesaid confession of judgment provisions, the Defendant Gray Drive acknowledged, through its signature, in the Mortgage, Mortgage Note, their respective amendments and modifications and the other loan agreements referenced herein that it read and understood all the provisions thereof, and agreed that it waived any right it may have to notice or to a hearing in connection with any confession of judgment thereunder. The Defendant Gray Drive thus knowingly, intentionally, voluntarily and unconditionally waived any and all rights it has to prior notice and an opportunity for hearing under the Constitutions of the United States of America and the Commonwealth of Pennsylvania with respect to such confession of judgment. 29. None of the Mortgage, Mortgage Note and its Amendments, and other relevant construction loan agreements have been assigned by the Plaintiff, the Plaintiff remains the original holder of the same, and each of the same remains in full force and effect. 30. The Mortgage Note provides that the Defendant Gray Drive's failure to make any payment when due thereunder constitutes an Event of Default. The Mortgage provides that any Event of Default under the Mortgage Note is an Event of Default under the Mortgage. 31. The Mortgage, Mortgage Note, and their amendments and modifications were not executed, nor is judgment being entered, against a natural person in connection with a residential lease. 14 32. Judgment has not been entered on the Mortgage, Mortgage Note or their respective amendments and modifications in any jurisdiction. 33. The Mortgage, Note and their amendments and modifications are not more than twenty years old. WHEREFORE, the Plaintiff, PNC Bank, National Association, as successor to National City Bank demands that judgment in ejectment ejecting Gray Drive from the real property described herein and at Exhibit "C" and for possession thereof be entered in its favor and against the Defendants, Gray Drive LP. BLANK ROME LLP By: Francis kkfr?oK j e, Esquire Atty. No. 415-17 Lev Kalman, Esquire Atty. No. 89844 BLANK ROME LLP One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 15 VERIFICATION I, David W. Olenik, subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities, hereby state the following: (1) I am a Senior Vice President of the Plaintiff, PNC Bank, as successor to National City Bank, and I am authorized in that capacity, to make this Verification on behalf of the Plaintiff, and (2) the facts set forth in the foregoing Complaint for Confession of Judgment for Possession of Real Property are true and correct to the best of my personal knowledge to the extent that I have personal knowledge and are otherwise true and correct to the best of my information and belief. Date: I Z `7 David W. Olenik f MORTGAGE NOTE $19,200,000,00 October 28, 2004 Pittsburgh, Pennsylvania FOR VALUE RECEIVED, GRAY DRIVE, LP, a Pennsylvania limited partnership, with an address at 76 Emlyn Drive, Mechanicsburg, Pennsylvania 17055 ("Borrower'), hereby promises to pay to the order of NATIONAL CITY BANK OF PENNSYLVANIA, a national banking association ("Bank', in lawful money of the United States of America, in immediately available funds, at its offices located at 20 StanvWx Street, Pittsburgh, Pennsylvania 15222, or at such other location as the Bank may from time to time designate, the principal sum of NINETEEN MILLION TWO HUNDRED THOUSAND DOLLARS ($19,200,000.00) or so much of the principal sum as shall have been advanced to or for the account of the Borrower under the terms of this Mortgage Note and the Construction Loan Agreement (as herein defined), together with interest accruing on the outstanding principal balance from the date or dates of disbursement thereof, as provided below. This Mortgage Note is hereinafter referred to as the "Note" and the loan evidenced by this Note is hereinafter referred to as the "Loan". Subject to the terns and conditions hereof, in the Construction Loan Agreement and in the Loan Documents (as herein defined), the Bank agrees to make advances to the Borrower from time to time (not more frequently than once a month) as set forth in the Construction Loan Agreement and only for the uses set forth in the Construction Loan Agreement. 1. Rate of Into t and Payment Terms, The principal amount from time to time outstanding hereunder shall bear interest from the date hereof until all amounts under this Note are indefeasibly paid in full at the following interest rates (hereinafter collectively referred to as the "Applicable Interest Rate") which Applicable Interest Rate shall be calculated in accordance with one of the following options, to be selected by the Borrower in writing no later than two (2) business days prior to the first advance (as herein defined) and each advance thereafter under this Note and the Construction Loan Agreement: A. Construction/1-ease-Up Period: From the date of this Note through October 31, 2007, the Interest Rate Options (as herein defined) shall be: (a) Construction LIBOR Flex Option: If Borrower selects the Construction LIBOR Flex Option, the Applicable Interest Rate shall equal the LIBOR Flex Rate. As used herein the term "LIBOR Flex Rats" shall at all times mean the daily fluctuating rate per annum which is equal to the sum of the LIBOR Rate for a Contract Period of one (1) month plus two hundred fifty basis points (2.5096), calculated on each calendar day, with each change in such LIBOR Rate automatically, Immediately and without notice changing the LIBOR Flex Rate. The LIBOR Flex Rate shall be adjusted by the Bank, as necessary, at the end of each banking day during the term hereof. The Bank shall not be required to notify the Borrower of any adjustments to the LIBOR Flex Rate; however, the Borrower may request a quote of the prevailing LIBOR Flex Rate on any banking day. (b) Prime Rate option: If Borrower selects the Prime Rate Option, the Applicable Interest Rate shall equal the Prime Rate. As used herein the term "Prime Rate" shall mean the fluctuating rate per annum which is announced from time to time by Bank as being its so_calied "Prime Rate", with each change in the Prime Rate BANK FIN:233732.4 012150-120744 automatically, immediately and without notice changing the Applicable Interest Rate. The Prime Rate is not necessarily the lowest rate of interest then available from Bank on fluctuating rate loans. As used herein, the term "LIBOR Rate" shall be the fixed rate per annum (rounded upwards, if Bank deems necessary, to the next higher 1/16 of 1.00%) determined by Bank by dividing (a) the rate per annum determined by Bank to equal the average rate per annum at which deposits (denominated in United States dollars) in an amount similar to the LIBOR Unit and with a maturity similar to the Contract Period for that LIBOR Unit are offered to Bank at 11:00 a.m. London time (or as soon thereafter as practicable) two (2) Eurodollar Banking Days prior to the first day of the Contract Period by banking institutions in any Eurodollar market selected by Bank by (b) the difference of one (1) less the Reserve Percentage. "LIBOR Unit' is the portion of the Loan to which the LIBOR Option is to apply. "Eurodollar Banking Day" means a day on which banks In the London Interbank Market deaf in United States dollar deposits and on which banking Institutions are generally open for domestic and international business at the place where Bank's banking office Is located and in New York City. "Contract Period" means one (1) month. "Reserve Percentage" means the percentage (expressed as a decimal) which Bank determines to be the maximum (but in any case less than 1.00) reserve requirement (including, without limitation, any emergency, marginal, special, or supplemental reserve requirement) prescribed for so-called "Eurocurrency liabilities" (or any other category of liabilities that includes deposits by reference to which the interest rate applicable to LIBOR Units is determined) under Regulation D (as amended from time to time) of the Board of Governors of the Federal Reserve System or any successor regulation which Bank determines to be applicable, with each change in such maximum reserve requirement automatically, immediately and without notice changing the interest rate thereafter applicable to such LIBOR Unit, it being agreed that LIBOR Units shall be deemed Eurocurrency liabilities subject to such reserve requirements without the benefit of any credit for proration, exceptions or offsets, In no event shall any Contract Period end on a date after the Maturity Date. Each advance under this Note is an "Advance". The Construction LIBOR Flex Option, the Term LIBOR Flex Option (as herein defined), the Prime Rate Option and the Fixed Rate Option (as herein defined) are sometimes hereinafter collectively referred to as the "Interest Rate Options". It is understood that the Borrower may select different Advances under this Note and the Borrower may elect up to two (2) different Interest Rate Options to apply simultaneously to portions of the Advances. The Borrower shall have no more than two (2) borrowing tranches (each a " franche") at any point in time and each tranch shall initially be greater than or equal to Two Hundred Fifty Thousand Dollars ($250,000.00). Subject to the terms and conditions of this Note and the other Loan Documents, the Borrower may renew the Interest Rate Option applicable to such Advances or convert such Advances to a different Interest Rate Option. The Borrower shall notify the Bank in writing of each election of an Interest Rate Option, each conversion from one Interest Rate Option to another, the amount of the Advances then outstanding to be allocated to each Interest Rate Option and, where applicable, the length of the interest rate period of each interest Rate Option. Such written notice must be received by the Bank at least two (2) business days prior to the commencement of any Interest Rate Option. B. Term Period: The Borrower shall have the option to extend (the "Extension Option') the Construction/Lease-Up Period of this Note for an additional period of three (3) years from November 1, 2007 to October 31, 2010 (the "Term Period), provided that each and every one of the following conditions and requirements has been satisfied: BANK FIN=732-1012150.120748 -2- (a) No Event of Default has occurred and is continuing; (b) Not less than thirty (30) days and not more sixty (60) days prior to the commencement of the Term Period, the Bank shall have received (1) written notice of the Borrower's irrevocable election to extend the ConstructiorVLease-Up Period of this Note and (7) a Twenty-Four Thousand Dollars ($24,000.00) note extension fee ("Extension Request"); (c) The Debt Service Coverage Ratio (as defined in the Construction Loan Agreement) on an amortizing basis based on permanent term loan market standards is equal to or greater than 1.2 to 1.0 as calculated by the Bank based on written Leases in place and paying rent delivered to and approved by the Bank as of the date of the Extension Request; (d) No Material Adverse Change (as defined in the Construction Loan Agreement) has occurred with regard to the Borrower, the Guarantors (as defined in the Loan Documents as defined herein), the Property or the Project; and (e) The Bank shall have received, at the Borrower's sole expense, a title search and search of Uniform Commercial Code filings which reveal no additional (fens or encumbrances against the Property. If the Borrower elects to exercise the Extension Option and satisfies the conditions set forth in Paragraphs (a) through (e) above, then on and after November 1, 2007, the Interest Rate Options shall be: (a) Term LIBOR Flex Ootien• if Borrower selects the Tenn LIBOR Flex Option, the Applicable Interest Rate shall equal the UBOR Flex Rate. As used herein the term "USOR Flex Rate" shall at all times mean the daily fluctuating rate per annum which Is equal to the sum of the LIBOR Rate for a Contract Period of one (1) month plus two hundred twenty-five basis points (2.25°0, calculated on each calendar day, with each change In such LIBOR Rate automatically, immediately and without notice changing the LIBOR Flex Rate. The LIBOR Flex Rate shall be adjusted by the Bank, as necessary, at the end of each banking day during the term hereof. The Bank shall not be required to notify the Borrower of any adjustments to the LIBOR Flex Rate; however, the Borrower may request a quote of the prevailing LIBOR Flex Rate on any banking day. (b) Prime Rate Option: If Borrower selects the Prime Rate Option, the Applicable Interest Rate shall equal the Prime Rate. (c) Fixed R e io : If the Borrower irrevocably selects in writing within ten (10) days of the beginning of the Term period the Fixed Rate Option, the Applicable Interest Rate shall equal the Term Fixed Rate. As used herein, the Term Fixed Rate' shall at all times mean the fixed Interest rate Bank's then current cost of funds plus two hundred twper enty-five basis i pto the oints (2.25°0 for the entire Term Period. If the Borrower elects the Fixed Rate Option, the Borrower may not elect to convert to another Interest Rate Option. The Construction LIBOR Flex Option and the Term LIBOR Flex Option are sometimes hereinafter collectively referred to as the "LIBOR Options." ,'' BANK FIN:233732-4 012150-120748 _ 3 If Borrower fails to select an Interest Rate Option, the Applicable Interest Rate shall be the Prime Rate Option. If the Bank determines (which determination shall be final and conclusive) that, by reason of circumstances affecting the eurodollar market generally, deposits in dollars (in the applicable amounts) are not being offered to banks in the eurodollar market for the selected term, or adequate means do not exist for ascertaining the LIBOR Rate, then the Bank shall give notice thereof to the Borrower. Thereafter, until the Bank notifies the Borrower that the circumstances giving rise to such suspension no longer exist, (a) the availability of the LIBOR Options shall be suspended, and (b) the interest rate for all advances then bearing interest under the LIBOR Options shall be converted to another borrowing Index similar to the LIBOR Rate as selected by the Bank. In addition, if, after the date of this Note, the Bank shall determine (which determination shall be final and conclusive) that any enactment, promulgation or adoption of or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by a governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Bank with any guideline, request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for the Bank to make or maintain or fund loans under the LIBOR Options, the Bank shall notify the Borrower. Upon receipt of such notice, until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer apply, (a) the availability of the LIBOR Options shall be suspended, and (b) the interest rate on all advances then bearing interest under the LIBOR Options shall be converted to another borrowing index similar to the LIBOR Rate as selected by the Bank, In no event will the rate of Interest hereunder exceed the maximum rate allowed by law. The Applicable Interest Rate shall be (i) calculated on the basis of a 360 day year and (ii) charged on the actual number of days elapsed in any calendar year or part thereof. Monthly payments of accrued Interest shall be due and payable starting on December 1, 2004, and on the first (1st) day of each month thereafter, through and including the monthly payment due on October 1, 2007. The entire principal balance outstanding hereunder, and all accrued and unpaid interest hereunder, and any and all costs or expenses relating thereto, shall be due and payable in full, without demand, on October 31, 2007 unless extended as set forth in the next paragraph (the "Maturity Date'. If the Borrower exercises the Extension Option, satisfies each of the conditions precedent and extends the Note for the Term Period, the Maturity Date shall automatically be extended to October 31, 2010 and the payment due on October 31, 2007 shall be a payment of accrued interest at the Applicable Interest Rate. Beginning on November 1,2007 for the monthly payment due December 1, 2007, and on the first (1st) day of each calendar month thereafter, in addition to monthly payments of interest at the Applicable interest Rate, the Borrower shall make monthly payments of principal In an amount sufficient to amortize the outstanding principal balance of this Note over a term of twenty-five (25) years, and the entire principal balance outstanding hereunder, and all accrued and unpaid interest hereunder, and any and all costs or expenses relating thereto, shall be due and payable in full, without demand, on October 31, 2010. BANK FIN;233732-r 012150.120748 -4- Accrued interest will be due and payable monthly in arrears on the principal amount outstanding hereunder through and including the day of payment of this Note in full whether or not judgment has been entered on this Note. The Applicable Interest Rate will be adjusted, when necessary and if appropriate, in accordance with the terms of this Note. If any payment under this Note shall become due on a Saturday, Sunday or public holiday under the laws of the Commonwealth of Pennsylvania, such payment shall be made on the next succeeding business day and such extension of time shall be included in computing interest in connection with such payment, The Borrower hereby authorizes the Bank to charge the Borrower's deposit account at the Bank for any monthly payment of principal and/or Interest and/or applicable late charges when due hereunder after the expiration of any grace period. Payments received will be applied by the Bank in the following order: accrued interest, charges, fees and expenses (including attorneys! fees) and principal. 2. Late Payments: Default Rate. If the Borrower fails to make any payment of principal, interest or other amount becoming due pursuant to the provisions of this Note within ten (10) calendar days of the date due and payable, the Borrower also shall. pay to the Bank a late charge equal to five percent (5%) of the amount of such payment. Such ten (10) day period shall not be construed in any way to extend the due date of any such payment. The late charge is imposed for the purpose of defraying the Bank's expenses Incident to the handling of delinquent payments and is in addition to, and not In lieu of, the exercise by the Bank of any rights and remedies hereunder, under the other Loan Documents (as defined herein) or under applicable laws, and any fees and expenses of any agents or attorneys which the Bank may employ. From and after maturity of this Note, whether by acceleration or otherwise, this Note shall bear interest at a fluctuating rate per annum (based on a year of 360 days and actual days elapsed) which shall be three percentage points (3%) In excess of the Applicable Interest Rate in effect from time to time under this Note but not more than the maximum rate allowed by law (the "Default Rate"). The Default Rate shall continue to apply and be payable monthly whether or not judgment shall be entered on this Note. The Borrower agrees that the late charge and the Default Rate are reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank, and that the actual harm Incurred by the Bank cannot be estimated with certainty and without difficulty. 3. Preeayrnent (a) Borrower shall have the right to prepay the principal of this Note in whole or in part, provided, that (1) each such prepayment shall be in the principal sum of One Hundred Thousand Dollars ($100,000.00) or any integral multiple thereof or an amount equal to the then aggregate unpaid principal balance of this Note, (0) each such prepayment shall be applied to the installments of this Note In the inverse order of their respective due dates, and (iii) concurrently with the prepayment of the entire unpaid principal balance of this Note, Borrower shall prepay the accrued Interest on the principal being prepaid. (b) If this Note is: W prepaid, in whole or in part, during a period when the unpaid principal balance bears interest, or is scheduled to bear interest, at the Fixed Rate Option, or (ii) accelerated after the occurrence of an Event of Default hereunder, during a period when the unpaid principal balance bears interest, or is scheduled to bear interest, at the Fixed Rate Option, BAr4t_F114:233732-4 012150.120749 -5- and, If, on the date of the occurrence of either (i) or (ii) above, or with respect to any partial prepayment for which a Prepayment Charge was not determined on the date of occurrence, on the date of any subsequent prepayment for which a Prepayment Charge is determined (each a "Determination Date'), the Reinvestment Rate Is less than the fixed rate specified in this Note, then a "Prepayment Charge," computed in accordance with the terms- of the Prepayment Charge Addendum, shall be payable by Borrower to Bank at the time of prepayment or acceleration, as applicable. Bank's right to collect any Prepayment Charge shall accrue as of each Determination Date, and any delay on Banks part to determine, or to notify Borrower as to, the amount of any Prepayment Charge shall not constitute a waiver of, or otherwise limit, Banks right to recover a Prepayment Charge otherwise payable pursuant to the terms hereof. The term "Reinvestment Rate" is defined in the Prepayment Charge Addendum. Borrower's execution of this Note shall constitute acknowledgment that Borrower has received a complete copy of the Prepayment Charge Addendum. 4. Loa Documents. This Note is issued in connection with the Construction Loan Agreement dated as of even date herewith entered Into by and between the Bank and the Borrower (the "Construction Loan Agreement"), the Open-End Mortgage and Security Agreement dated as of even date herewith entered into by and between the Bank and the Borrower ("Mortgage"), an Assignment of Leases and Rents dated as of even date herewith, a Security Agreement dated as of even date herewith (and two (2) UCC-1 Financing Statements), the Guaranty and Suretyship Agreement dated on or about the date hereof, the Environmental Indemnity Agreement dated on or about the date hereof, and any other security agreements, mortgages, assignments and other documents and Instruments entered into from time to time in connection with this Note, the terms of which are Incorporated herein by reference (collectively the "Loan Documents"), and is secured by the property described In the Loan Documents and by such other collateral as previously may have been or may in the future be granted to the Bank to secure this Note. The terms, covenants, conditions, provisions, stipulations, promises and agreements of the Loan Documents are hereby made a part of this Note, to the same extent and with the same effect as If they were fully set forth herein, and Borrower does hereby covenant to abide by and to strictly comply with each and every term, covenant, condition, provision, stipulation, promise and agreement set forth In the Loan Documents. 6. o er to Confess Judgment UPON THE OCCURRENCE OF AN "EVENT OF DEFAULT" (AS HEREIN DEFINED), THE BORROWER HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA, AFTER DEMAND IS MADE HEREUNDER, TO APPEAR FOR THE BORROWER AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINST THE BORROWER IN FAVOR OF THE BANK OR ANY HOLDER HEREOF FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF THE GREATER OF 10% OF SUCH PRINCIPAL AND INTEREST OR $6,000.00 ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT THE DEFAULT RATE. NOTWITHSTANDING THE ATTORNEY'S COMMISSION PROVIDED FOR IN THIS PARAGRAPH (WHICH IS INCLUDED IN THE WARRANT FOR PURPOSES OF ESTABLISHING A SUM CERTAIN), THE AMOUNT OF ATTORNEY'S FEES THAT THE BANK BANK-FIN-233732-4 012150-12(7748 MAY RECOVER FROM THE BORROWER SHALL NOT EXCEED THE ACTUAL ATTORNEY'S FEES INCURRED BY THE BANK. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT UNTIL SUCH TIME AS THE BANK SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS. THE FOREGOING RIGHTS AND REMEDIES ARE IN ADDITION TO AND NOT IN LIEU OF ANY OTHER RIGHT OR REMEDY AVAILABLE; TO BANK UNDER THIS REVOLVING NOTE OR THE OTHER LOAN DOCUMENTS OR OTHERWISE. 6. gven of De ault and Remedies. The occurrence of any of the following events will be deemed to be an "Event of DefauR" under this Note: (i) the nonpayment of any principal, interest or other indebtedness under this Note or any of the other Loan Documents when due and such non-payment shall have continued for a period of five (5) days after the date on which such payment was due; (ii) the occurrence of any event of default or default and the lapse of any notice or cure period under any Loan Document or any other debt, liability or obligation to the Bank of any Obligor; (iii) the filing by any Obligor of any proceeding in bankruptcy, receivership, insolvency, reorganization, liquidation, conservatorship or similar proceeding, or any assignment by any Obligor for the benefit of creditors; (iv) the tiling against any Obligor of any proceeding in bankruptcy, recevership, insolvency, reorganization; liquidation, conservatorship of similar proceeding which is not dismissed or stayed within sixty (60) days of such filing; (v) if any levy, gamishment, attachment, or similar proceeding is Instituted against the property of any Obligor held or deposited with the Bank and such action Is not promptly contested by appropriate proceedings and a bond is not posted for the amount in controversy; (vi) a default with respect to any other indebtedness of any Obligor for borrowed money, if the effect of such default Is to cause or permit the acceleration of such debt; (vii) the commencement of any foreclosure proceeding, execution or attachment against any collateral securing the obligations of any Obligor to the Bank; (viii) the entry of a final judgment in excess of $50,000.00 against any Obligor and the failure of such Obligor to discharge or bond the judgment within thirty (30) days of the entry thereof, (ix) the revocation or attempted revocation, in whole or in part, of any guarantee to Bank by any Guarantor, 9ANK_FIN;233732-4 D12160-120740 .7- (x) any representation or warranty made by any Obligor to the Bank in any Loan Document, or any other documents now or In the future securing the obligations of any Obligor to the Bank, is false, erroneous or misleading in any materWI respect; or (xi) the failure of any Obligor to observe or perform any other covenant or other agreement with the Bank contained in any Loan Document or any other documents now or in the future securing the obligations of any Obligor to the Bank and such failure to observe or perform shall have continued for a period beyond the grace period, if any, or if no grace period is specified, beyond thirty days after such failure to observe or perform. As used herein, the term "Obligor' means any Borrower and any Guarantor, and the term "Guarantor" means any guarantor of the obligations of the Borrower to the Bank existing on the date of this Revolving Note or arising in the future. Upon the occurrence of an Event of Default: (a) the Bank shall be under no further obligation to make Advances hereunder, (b) if an Event of Default specified in clauses (iii), (iv) or (v) above shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder shall be immediately due and payable without demand or notice of any kind; (c) if any other Event of Default shall occur, the outstanding principal balance and accrued interest hereunder, together with any additional amounts payable hereunder, at the sole option of the Bank and without demand or notice of any kind, may be accelerated and become immediately due and payable; (d) at the sole option of the Bank, this Note will bear Interest at the Default Rate from the date of the occurrence of the Event of Default; and (e) the Bank may exercise from time to time any of the rights and remedies available to the Bank under the Loan Documents or under applicable law, all such rights and remedies being cumulative and not exclusive of each other and such rights and remedies may be exercised concurrently or consecutively at Bank's sole option; and such rights and remedies shall not be exhausted by any exercise thereof, but may be exercised as often as occasion therefor shall occur, and the failure to exercise any such right or remedy shall not be construed as a waiver or release of same. 7. Interest Limitation. In no event whatsoever, whether by acceleration of maturity of the debt evidenced hereby or otherwise, shall the amount paid or agreed to be paid to Bank for the use, forbearance or detention of the money advanced or to be advanced hereunder exceed the highest lawful rate permissible under the laws of the Commonwealth of Pennsylvania or the United States of America as applicable to Borrower. If, from any circumstances whatsoever, fulfillment of any provision hereof or of any other agreement evidencing or securing the debt, at the time performance of such provisions shall be due, shall involve the payment of interest in excess of that authorized by law, the obligation to be fulfilled shall be reduced to the limit so authorized by law, and if from any circumstances, Bank shall ever receive as Interest an amount which would exceed the highest lawful rate applicable to Borrower, such amount which would be excessive interest shall be applied to the reduction of the unpaid principal balance of the debt evidenced hereby and not to the payment of interest. All sums paid to Bank for the use, forbearance or detention of the money advanced or to be advanced hereunder shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full stated term of this Note, so that the rate of interest on account of this Note is uniform throughout the term hereof. The provisions of this paragraph shall control all of the provision of the Loan Documents. BANK-FIN:233732-4 0121 Wi 20746 -8- 8• _ight of Setoff. In addition to all liens upon and rights of setoff against the money, securities or other property of the Borrower given to the Bank by law, the Bank shall have, with respect to the Borrower's obligations to the Bank under this Note and to the extent permitted by law, a contractual possessory security interest In and a right of setoff against, and the Borrower hereby assigns, conveys, delivers, pledges and transfers to the Bank all of the Borrower's right, title and interest in and to, all deposits, moneys, the Borrower now or hereafter In the possession of or on desecurities and other property d in a general or special account or deposit, whether held jointly witthri sowith the Bank meone else, otrewhether held for safekeeping or otherwise, excluding, however, all IRA, Keogh, and trust accounts specifically designated as payroll tax withholding accounts. Every such security interest and right of setoff may be exercised without demand upon or notice to the Borrower. Every such right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of Default hereunder without any action of the bank, although the Bank may enter such setoff on its books and records at a later date. 9. 'Transfer of Interest, Borrower covenants and agrees that it shall not permit the sale, pledge, encumbrance, assignment or other transfer of any ownership interest in the Property or the Borrower or any member of the Borrower. Notwithstanding the above, the limited partners in the Borrower and the members in the General Partner (as defined in the Construction Loan Agreement) of the Borrower may transfer certain limited partnership interests and membership units, respectively, to immediate family members for estate planning purposes; provided, however, that, the Borrower Shan notify the Bank in writing within fifteen (15) days of any such transfer, further, provided, however, that at all times Hugh J. T. and Diane H. Simpson shall own, in the aggregate, at least ffty-one percent (51 %) of the membership units in the General Partner of the Borrower. 10. Miscellaneous. No delay or omission of the Bank to exercise any right or power arising hereunder shall Impair any such right or power or be considered to be a waiver of any such right or power or any acquiescence therein nor shall the action or inaction of the Bank impair any right or power resulting therefrom. The Bank shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Bank, and then only to the extent specifically set forth in writing. A waiver as to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event. The invalidity or unenforceability of any provisions of this Note shall not affect the other provisions hereof. If any provision of this Note is found to be Invalid by a court, all the other provisions of this Note will remain in full force and effect. dification, amend departum byothe Borrower there rf om will be effective unless made t Note nor consent to any Bank, in writing and signed by the The Borrower agrees to pay on demand, to the extent permitted by law, all fees, costs and expenses (including reasonable inside and outside legal counsel fees and expenses) Incurred by the Bank in preparing the Loan Documents or any amendments, modifications, enewals exten and n h ssNote and any securityrtherefor and in the Loa Document n and enforcement of its rights BAN -FIN:233732-4 012150-120748 _ g _ The Borrower hereby forever waives presentment, demand, protest, notice of dishonor, notice of nonpayment or default and any other notices of any kind. The Borrower also waives all defenses based on suretyship or impairment of collateral. In any action brought with respect to this Note, the holder hereof need not produce or file the original of this Note, but only need produce or file a photocopy of this Note, certified by the holder to be a true and correct copy of this Note, The Bank shall have the right to furnish to its affiliates, and to such other persons or entities as the Bank may deem advisable for the conduct of its business, information conceming the business, financial condition, and property of the Borrower and the Guarantor, the amount of the debt of the Borrower to Bank, and the terms, conditions and other provisions applicable to the respective parts thereof. The Bank reserves the right to participate or sell interests in the Revolving Loan, this Note and the other Loan Documents and otherwise dispose of the same in the Bank's normal course of business. IF THIS NOTE IS EXECUTED BY MORE THAN ONE BORROWER, THE OBLIGATIONS OF SUCH PERSONS OR ENTITIES HEREUNDER WILL BE JOINT AND SEVERAL, This Note shall bind the Borrower and the heirs, executors, administrators, successors and assigns of the Borrower, and the benefits hereof shall inure to the benefit of Bank and its successors and assigns; provided, however, that Borrower shall not assign its obligations under this Note or any of the Loan Documents without the express written consent of Bank, which consent may be withheld by Bank in its sole and absolute discretion. All references herein to the "Borrower" and "Bank" shall be deemed to apply to the Borrower and Bank and their respective heirs, executors, administrators, successors and assigns. All notices required to be delivered pursuant to this Note shall be in writing and shall be sent to the following addresses by hand delivery, b re service (receipt with signature of addressee required), recognized milettransmiss on with delivery confirmation of delivery (with a copy sent the same day by United States Mail) or by United States certified mail (return receipt requested, postage prepaid: Bark: Bawer National City Bank of Pennsylvania Gray Drive LP 20 Stanwix Street -18th Floor ' Pittsburgh, PA 15222 78 Emlyn Drive Attn: Vice President Mechanicsburg, PA 17055 Investment Real Estate Division FaxAttn: : Hugh J. T. Simpson Fax: (412) 644-6095 (717) 795-5490 With a copy to: Stephen C. Nudel, Esquire 219 Pine Street Harrisburg, PA 17101 Fax: (717) 236-5084 Notice so given by hand delivery or facsimile shall be effective on the day notice is given. Notice so given by recognized national overnight delivery service or United States BANK.FIN:233732-4 012150.120748 _ 10 certified mail shall be effective on the day received by the addressee. The Bank and the Borrower may each change the address for service of notice upon it by a notice in writing to the other party hereto. Time is of the essence with respect to all of 130 Mower's obligations and agreements evidenced by this Note and the other Loan Documents. This Note has been delivered to and accepted by the Bank and will be deemed to be made in the Commonwealth of Pennsylvania. This Note will be interpreted and the rights and liabilities of the parties hereto detennined in accordance Pennsylvania, excluding its conflict of laws rules. The Bo owes hereby agree Commonwealth thQ'^?alth of jurisdiction of any state or federal court located within Allegheny County, Pennsylvania, and consents that all service of process be sent by nationally recognized overnight courier service directed to the Borrower at the Borrower's address set forth herein and service so made will be deemed to be completed on the business day after deposit with such courier, postage prepaid; provided that nothing contained herein will prevent the Bank from bringing any action or exercising any rights against any security or against the Borrower Individually, or against any property of the Borrower within any other state or nation to enforce any award or Judgment obtained in the venue specified above or such other venue as the Bank chooses. The Borrower waives any objection to venue and any objection based on a more convenient forum In any action Instituted hereunder. This Note, together with the other Loan Documents, constitutes the entire agreement between the parties hereto relating to this financing transaction and it supersedes all prior understandings and agreements, whether written or oral, between the parties hereto relating to the transactions provided for herein. 1 11. DER OF JURY TRIAL. THE BORROWER AND THE BANK IRREVOCABLY WAIVE ANY AND ALL, RIGHTS EACH MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER HAS BEEN NEGOTIATED AND IS KNOWING AND VOLUNTARY. [REMAINDER OF PAGE INTENTIONALLY LEFT- BLANK] BANK FIN:233732-4 012150.126748 '11- The Borrower acknowledges that it has read and understood all the provisions of this Note, including the confession of Judgment and waiver of jury trial, and has been advised by counsel as necessary or appropriate. IN WITNESS WHEREOF, the Borrower, intending to be caused this Mortgage Note to be duly executed as a doument under seal as of he date first written above. WITNESS: GRAY DRIVE, LP, a Pennsylvania limited partnership By: GRAY GRIFFIN, LLC, a Pennsylvania limited liability company Its: General Partner a e: Walter D. Enick By' (SEAL) Na J. T. Simpson Tide: naging Member BANK FIN233732.t012150.120748 -12- PREPAYMENT CHARGE ADDENDUM Penns Ivania Amount City, State $19 200,000.00 Plttsbur h PA Date FOR BANK USE ONLY October 28 2004 Obil or # Tax !, D. # volt ation # Office This Prepayment Charge Addendum {this "Addendum"} is made by GRAY DRIVE, LP, a Pennsylvania limited partnership ("Borrower') at the place and effectiye as of the date first set forth above. Borrower has executed and delivered to NATIONAL, CRY BANK OF PENNSYLVANIA ("Sank') a mortgage note (the "Note") dated October 28, 2004, in the face amount set forth above and captioned Mortgage Note. This Addendum is hereby made a part of the Note and the Note is hereby supplemented by adding the following provisions thereto: "Reinvestment Rate" means, on the Determination Date the interpolated from the most actively traded U.S. Treasury Bills, U.S. Treasury Notes and/or U.S. Treasury Bonds to a term equal to the principal weighted avers "bond equivalent yield" ?e time (as measured in years from the date of calculation and rounded to the nearest 1110 of a ear) that all Payments subject to early repayment are scheduled to be outstanding year) nbear Interest at al fixed rate under the Note. "Prepayment Chargd' is calculated as follows: Step 1. For each period that bears interest, or is scheduled to bear interest, at a fixed rate, multiply the difference between the fixed rate and the Reinvestment Rate by the principal amount originally scheduled to be outstanding in each to any change thereto as a result of an period (giving effect Charge has been determined pursuant to the y prior repayment for erms of his Addendum but ei r Prepayment ainot be outstanding due to early repayment, In the case of a accelerated so that such amount scheduled to be outstanding is already due, and multiply the result by the number of days in that Prepayment, or (b) has been however, that in no event shall any Prepayent Charges here nderbebcalculat provided, for aPeriod for which the fixed rate has not yet been determined, any Step 2. Sum all the numbers obtained in Step1 to arrive at the Prepayment Charge, The calculation is detailed mathematically as follows: Prepayment Charge ; h (FR - RR) x prfn, x (Days460) Where: BAMC FIN:233732.{ 0121W120748 -13- E = Sigma. The sum from I =1 to I = n. For each payment date 1, perform the operations to the right of the sigma sign until i=n. Then sum the results. I = 1,2,3 .., n where each number represents a scheduled future which the principal bears interest, or Is scheduled to bear interest, at a ixed rate. The first scheduled payment date subsequent to the early prepayment as applicable, is designated 1=1, the following payment date i = 2 date an the acceleration date, and so on until I = n. n = Number of remaining payment dates relating to periods bearing Interest, or scheduled to bear interest, at a fixed rate. FR = F Xed rate of interest as specified in the Note. RR= Reinvestment Rate Prlni = Principal amount originally scheduled to be outstanding on given date i but will not be outstanding due to early repayment or acceleration. When I ; 1 then Prfni.t Is equal to the principal amount subject to early repayment on the date of prepayment or acceleration, as applicable. Days= Number of days from payment date (i - 1) to payment date I. When 1 = 1, Days, is equal to the number of days from the later of the date of prepayment, acceleration, or the fixed rate start date, as applicable to payment date 1= 1. Bank's determination of the Prepayment Change shall be conclusive absent obvious error. Any prepayment shall be applied to any installments due on the Note In the Inverse order of their respective due dates. Borrower acknowledges and agrees that the Prepayment Charge (a) constitutes liquidated damages, (b) is a reasonable method of determining Bank's loss in the event all or any part of any principal of the Note Is paid in whole or in part or accelerated before its original due date, and (c) is not a penalty. BORROWER, BY SIGNING BELOW, HEREBY ACKNOWLEDGES THAT BORROWER HAS BEEN GIVEN A FULL OPPORTUNITY TO REVIEW THIS ADDENDUM AND CONSULT WITH BORROWER'S LEGAL COUNSEL, ACCOUNTANTS ANDIOR FINANCIAL PROFESSIONALS AS TO THE EFFECT AND CONSEQUENCES OF THIS ADDENDUM AND, HAVING HAD AN OPPORTUNITY TO DO SO, HEREBY AGREES TO BE BOUND BY ITS TERMS. 1ORROWER: WITNESS: GRAY DRIVE, LP, a Pennsylvania limited partnership BY: GRAY GRIFFIN, LLC, a Pennsylvania limited liability company Its: Gen al Partner B N e: Walter D, Enick (SEAL) Na Vr?* Simpson Title: Member BANK FIN:233732-4 012150-120748 -14- TO OPEN-END MORTGAGE AND SECURITY AGREEMENT 9 1 1 Cr THIS MORTGAGE SECURES FUTURE ADVANCES. THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT (this Open-End Mortgage and Security Agreement as from time to time extended, renewed, replaced, amended, restated, supplemented or modified, is herein referred to as this "Mortgage") is made this 28th day of October, 2004, by GRAY DRIVE, LP, a Pennsylvania limited partnership, with an address of 76 Emlyn Drive, Mechanicsburg, Pennsylvania 17055 (the "Mortgagor"), to NATIONAL CITY BANK OF PENNSYLVANIA, a national banking association, with an address of 20 Stanwix Street, Pittsburgh, Pennsylvania 15222 (the "Mortgagee"). WITNESSETH: WHEREAS, Mortgagor desires to obtain from Mortgagee a construction loan in the principal amount of NINETEEN MILLION TWO HUNDRED THOUSAND DOLLARS ($19,200,000.00) (the "Loan"); and WHEREAS, such Loan shall be evidenced by a Mortgage Note, dated the date hereof, in the principal amount of NINETEEN MILLION TWO HUNDRED THOUSAND DOLLARS ($19,200,000.00), made and delivered contemporaneously herewith by the Mortgagor to the Mortgagee (such Mortgage Note as the same may from time to time be extended, renewed, replaced, amended, restated, supplemented or modified, is hereinafter referred to as the "Note"); and WHEREAS, the Loan will be made by the Mortgagee to the Mortgagor under the Note and pursuant to the terms and conditions of that certain Construction Loan Agreement of even date herewith executed by the Mortgagee and the Mortgagor (the "Loan Agreement'); and WHEREAS, as a condition precedent (among others) to the Mortgagee's making of such Loan to the Mortgagor and to the acceptance by Mortgagee of the Note, the Mortgagee has required that the Mortgagor, by the execution and delivery of this Mortgage, secure the full and punctual payment of the Obligations (as hereinafter defined) and the due and punctual performance of this Mortgage, the Note, the Loan Agreement and the other Loan Documents (as hereinafter defined). NOW, THEREFORE, In consideration of the premises and for other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged by the Mortgagor, in order to secure (a) the full and punctual payment of the Obligations, including, without limitation, the principal of, and interest on, the Note in accordance with terms and conditions of the Note, and (b) the full and punctual performance of this Mortgage, the Note, the Loan Agreement and the other Loan Documents, the Mortgagor does hereby grant, convey, bargain, sell, assign, pledge, transfer and set over to the Mortgagee and its successors and assigns, and does hereby grant to the Mortgagee and its successors and assigns, a continuing lien on and a security interest in all and each of the properties, rights, interests and privileges described in the following paragraphs: BANK FIN:233692-6 012150-1T 18 8. 0- ;- 0 4 0 9 0 ALLthat parcel of land located in the Township of Upper Allen, Cumberland County, Pennsylvania, described more particularly in Exhibit A attached hereto and made a part hereof (the "Land"). TOGETHER with all right, title and interest of the Mortgagor, including any after-acquired right, title or reversion, in and to the beds of the ways, streets, avenues and alleys adjoining the Land. TOGETHER with all and singular the rights, alleys; ways, tenements, hereditaments, easements, appurtenances, passages, waters, water rights, water courses, riparian rights, liberties, advantages, accessions and privileges now or hereafter appertaining to the Property (hereinafter defined) or any part thereof, including, but not limited to, any homestead or other claim at law or in equity, the reversion or reversions, remainder or remainders thereof, and also all the estate, property, claim, right, title or interest now owned and hereafter acquired by the Mortgagor in or to the Property or any part thereof. TOGETHER with all improvements, structures and buildings now or hereafter erected or placed on the Land and all replacements thereof (collectively, the "Improvements"). TOGETHER with all building materials, furniture, fixtures, machinery, equipment, goods and tangible personal property belonging to Mortgagor of every kind and nature whatsoever (but not including consumable goods or trade fixtures or other personal property owned by any tenants occupying all or any portion of the Improvements), now or hereafter located or contained in or upon or attached to, the Land or the Improvements or any part thereof, and used or usable in connection with any present or future'use or operations of the Land or the Improvements or any part thereof, both now owned and hereafter acquired by the Mortgagor, together with all Additions (hereinafter defined) thereto and all cash and non-cash proceeds thereof (all of the foregoing being hereinafter sometimes referred to collectively as the "Equipment Collateran. All of the Equipment Collateral, so far as permitted by law, shall be deemed to be fixtures and part of the Land and of the Improvements, and as to any part of the Equipment Collateral not deemed or permitted by law to be fixtures, this Mortgage shall also constitute a security agreement under the Uniform Commercial Code (hereinafter defined). Unless specifically designated otherwise, the Land, the Improvements, the Equipment Collateral and all other items, rights, interests, privileges and property described in the preceding paragraphs hereof, together with all Additions thereto, shall be herein referred to collectively as the "Property". TOGETHER with any and all judgments, awards of damages (including but not limited to severance and consequential damages), payments, proceeds, settlements or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, in connection with, or in lieu of any taking of title, of use, or of any other property interest of the Property or any part thereof under the exercise of the power of eminent domain, either temporarily or permanently by any Governmental Authority (hereinafter defined) or by any Person acting under Governmental Authority (all the foregoing being hereinafter sometimes referred to collectively as the "Condemnation Awards", or singularly a "Condemnation Award"), to the extent of all of the Obligations which may be secured by this Mortgage at the date of receipt of any such Condemnation Award by the Mortgagee, and of the reasonable counsel fees, costs and disbursements, if any, incurred by the Mortgagee in connection with the collection of such Condemnation Award, all of the foregoing whether now owned or in existence or hereafter created or acquired, and all proceeds of any of the foregoing. BANK_FIN:233692-6 012150-120748 2 9 K 18 85F:J`Y09 1 TOGETHER with all unearned premiums, accrued, accruing or to accrue under insurance policies with respect to the Property, now or hereafter obtained by the Mortgagor, and the Mortgagor's interest in and to all proceeds of the conversion, voluntary or involuntary, and the interest payable thereon, of the Property or any part thereof, into cash or liquidated claims, including, without limitation, proceeds of casualty insurance, title insurance or any other insurance maintained on the Property, and the right to collect and receive the same, all of the foregoing whether now owned or in existence or hereafter created or acquired, and all proceeds of any of the foregoing. TOGETHER with all of the rents, royalties, issues, profits, revenues, income and other benefits of the Property, or arising from the use or enjoyment of all or any portion thereof, or from any lease or agreement pertaining thereto, and all right, title and interest of the Mortgagor in and to, and remedies under, any and all leases and subleases of the Property, or any part thereof, both now in existence or hereafter entered into, and all contract rights, accounts receivable and general intangibles growing out of or in connection with such leases and subleases, together with all proceeds thereof; and including, without limitation, to the extent permitted by applicable law, all cash or securities deposited thereunder to secure performance by the lessees of their obligations thereunder whether such cash or securities are to be held until the expiration of the terms of such leases or are to be applied to one or more of the installments of rent coming due immediately prior to the expiration of such terms; reserving in the Mortgagor a license terminable upon the occurrence of an Event of Default (hereinafter defined) hereunder to collect and receive the same, all of the foregoing whether now owned or in existence or hereafter created or acquired. TO HAVE AND TO HOLD the Property and all other interests described above unto the Mortgagee and its successors and assigns. This Mortgage is an "Open-End Mortgage" as set forth in 42 PA. C.S.A. § 8143 and secures obligations up to a maximum principal amount of indebtedness outstanding at any time equal to double the face amount of the Note, plus accrued and unpaid interest, including, but not limited to, advances for the payment of taxes and municipal assessments, maintenance charges, insurance premiums, costs incurred for the protection of the Property or the lien of this Mortgage, expenses incurred by Mortgagee by reason of default by Mortgagor under this Mortgage and advances for construction, alteration or renovation of the Property or for any other purpose, together with all other sums due hereunder to secured hereby. All notices to be given to Mortgagee pursuant to 42 PA. C.S.A. § 8143 shall be given as set forth in this Mortgage. PROVIDED, HOWEVER, that until the occurrence of an Event of Default hereunder, and subject to any provisions hereof to the contrary, the Mortgagor shall have the right to remain In quiet and peaceful possession of the Property, and to collect, receive and retain the rents, revenues, profits, proceeds, income and royalties therefrom. PROVIDED FURTHER, that upon the full payment and performance of all of the Obligations at the time and in the manner stated in the Note, this Mortgage and the other Loan Documents, at any time before the sale hereinafter provided for, then these presents and the Lien (hereinafter defined) granted hereby shall cease, determine and become void, and upon proof given to the satisfaction of the Mortgagee that all of the Obligations have been so paid and performed, the Mortgagee (at the expense of the Mortgagor) shall release and discharge the Lien and security interest of this Mortgage of record upon payment to the Mortgagee of a reasonable fee for the release of the Property or any partial release thereof. BANK FIN:233692-6 012150-120748 9 ) 8 u v; 1 ? 4 :. . 0 7 ARTICLE I DEFINITIONS. RULES OF CONSTRUCTION 1.1 Definitions. As used in this Mortgage the terms defined above in the preamble, recitals and granting clauses of this Mortgage shall have the respective meanings specified therein, and the following terms shall have the meanings indicated: "Additions" means any and all alterations, additions, accessions and improvements to property, substitutions therefor, and renewals and replacements thereof. "Casualty" means any act or occurrence of any kind or nature (except for Condemnation) that results in material damage, loss or destruction to the Property. "Claim" means any liability, suit, action, claim, demand, loss, expense (including, without limitation, attorney's fees) or cost of any kind or nature whatsoever. "Condemnation" means any taking of title, of use, or of any other property interest under the exercise of the power of eminent domain, whether temporarily or permanently, by any Governmental Authority or by any Person acting under Governmental Authority which affects or may affect the Property. "Default" means an event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default under the provisions of this Mortgage. "Default Rate" shall have the meaning given it in the Note. "Development Drawings" shall have the meaning given to it in the Loan Agreement. "Encumbrance" means any Lien, easement, right of way, roadway (public or private), common area, condominium regime, cooperative housing regime, restrictive covenant, Lease or other matter of any nature that would affect title to the Property. "Enforcement Costs" means collectively and includes all expenses, charges, recordation or other taxes, costs, fees (including, without limitation, reasonable attorneys' fees and expenses) and other amounts of any nature whatsoever (whether or not expressly designated in any particular Section or provision hereof as being a part of Enforcement Costs) advanced, paid or incurred by or on behalf of the Mortgagee in connection with (a) the collection or enforcement of the Note and/or any of the other Loan Documents, (b) the exercise or enforcement of any rights, powers or remedies provided in this Mortgage, the Note or any of the other Loan Documents or under applicable law, and/or (c) the perfection, maintenance, management, repair, operation, preservation, defense, protection, realization upon, disposition, collection, sale or enforcement of all or any part of the Property. "Event of Default" has the meaning set forth in Article V hereof. "Governmental Authority" shall mean the government of the United States or the government of any state or locality therein, any political subdivision or any governmental, quasi- BANKFIN;233692-6 012160-120748 4 SK 1 ?8 ? "'; 093 governmental, judicial, public or statutory instrumentality, authority, body or entity or other regulatory bureau, authority, body or entity of the United States or any state or locality therein, including, but not limited to, any environmental agency, zoning board or any comparable authority. "Guarantors" shall mean jointly, severally and collectively Hugh J. T. Simpson and Diane H. Simpson. "Laws" means all laws, ordinances, statutes, codes, rules, regulations, orders, injunctions, units, or decrees of any Governmental Authority or political subdivision or any agency thereof or any court or similar entity established thereof. "Leases" means all leases, license agreements and other occupancy or use agreements (whether oral or written), now or hereafter existing, which cover or relate to the Property, together with all options therefor, amendments thereto and renewals, modifications and guarantees thereof, including, without limitation, any cash or-securities deposited under the Leases to secure performance by the tenants of their obligations under the Leases, whether such cash or securities are to be held until the expiration of the terms of the Leases or applied to one or more of the Installments of rent coming due. "Lien" means any mortgage, deed of trust, pledge, security interest, assignment, encumbrance, judgment, attachment, lien, claim, or charge of any kind, in, on, of or with respect to, any asset or property or any rights to any asset or property, including, without limitation, (a) any interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to any such asset or property, and (b) the filing of any financing statement relating to any such asset or property under the Laws of any jurisdiction. "Loan Agreement" shall have the meaning given to it on Page 1 of this Mortgage. "Loan Documents" shall have the meaning given it in the Note. "Net Proceeds," when used with respect to any Condemnation Awards or insurance proceeds allocable to the Property, means the gross proceeds from any Condemnation or Casualty remaining after payment of all expenses (including attorneys, fees) incurred in the collection of such gross proceeds. "Obligations" shall mean collectively (i) all unpaid principal and accrued and unpaid interest under the Note, (ii) all accrued and unpaid amounts due under any of the Loan Documents, including all reimbursements, indemnities, fees, costs, expenses and other obligations of the Mortgagor to the Mortgagee, and (iii) all Enforcement Costs. "Permitted Encumbrance" shall mean collectively (i) the Mortgagee's Lien, (ii) matters shown on Schedule B to the title insurance policy insuring this Mortgage and (III) other Liens to which Mortgagee has given its prior written consent to. "Person" shall mean any individual, partnership, corporation, trust, joint venture, unincorporated organization or Governmental Authority. "Property Assessments" means all taxes, payments in lieu of taxes, water rents, sewer rents, assessments, condominium charges, maintenance charges and other governmental or municipal or public or private dues, charges and levies and any Liens BANK_FIN:233692.6 012150.120748 5 SK 11 88? U94 (including federal tax liens) which are or may be levied, imposed or assessed upon the Property or any part thereof, or upon any Leases or any Rents, whether levied directly or indirectly or as excise taxes, as income taxes, or otherwise. "Rents" means all of the rents, royalties, issues, profits, revenues, earnings, income and other benefits of the Property, or arising from the use or enjoyment of the Property, or from any Lease or other use or occupancy agreement pertaining to the Property. "Taxes" means all taxes and assessments whether general or special, ordinary or extraordinary, or foreseen or unforeseen, which at any time may be assessed, levied, confirmed or imposed on the Mortgagor or on any of its properties or assets or any part thereof or in respect of any of its franchises, businesses, income or profits. "UGC" or "Uniform Commercial Code" means the Uniform. Commercial Code as adopted by, and as in effect on the date hereof in, the Commonwealth of Pennsylvania. 1.2. Rules of Construction. The words "hereof', "herein", "hereunder", "hereto", and other words of similar import refer to this Mortgage in its entirety. The terms "agree" and "agreements" mean and include "covenant" and "covenants". The headings of this Mortgage are for convenience only and shall not define or limit the provisions hereof. All references (a) made in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, (b) made in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well, (c) to the Land, Improvements, Equipment Collateral or other Property shall mean all or any portion of each of the foregoing, respectively, and (d) to Section numbers are to the respective Sections contained in this Mortgage unless expressly indicated otherwise. ARTICLE 11 REPRESENTATIONS AND WARRANTIES Mortgagee: The Mortgagor hereby makes the following representations and warranties to the 2.1. Trade Names. The Mortgagor conducts its business solely under the names Gray Drive, LP, the Property is known as Graham Hill Apartments and the Borrower makes use of no other names or trade names. 2.2. Warranty of Title. The Mortgagor is (a) the owner of the fee simple legal title to the Property (other than Equipment Collateral which it leases as lessee), (b) except for the Permitted Encumbrances, the owner of all of the beneficial and/or equitable interest in and to the Property (other than Equipment Collateral which it leases as lessee) and (c) lawfully seized and possessed of the Property. All Equipment Collateral which the Mortgagor leases as lessee is leased pursuant to valid and enforceable leases. The Mortgagor has the right and authority to convey the Property and does hereby warrant specially, and agrees to defend, the Property and the title thereto, whether now owned or hereafter acquired, against all Claims by any Person claiming by, through, or under the Mortgagor. The Property is subject to no Encumbrances other than the Permitted Encumbrances. BANK F{N:233692-6 012150-120748 I 81n- i i3 4- - J % 2.3. Property Assessments. The Property is assessed for purposes of Property Assessments as a separate and distinct parcel from any other property, such that the Property should never become subject to the Lien of any Property Assessments levied or assessed against any property other than the Property. 2.4. Independence of the Property. None of the Property relies, or will rely, on any property not covered by this Mortgage or any interest therein to fulfill any requirement of any Governmental Authority. The Property has been properly subdivided from all other property in accordance with the requirements of any applicable Governmental Authorities. 2.5. Existence. The Mortgagor is a limited partnership duly organized and validly existing under the laws of the Commonwealth of Pennsylvania. The Mortgagor is duly qualified or licensed and in good standing in each jurisdiction where it was formed or incorporated and each jurisdiction where the nature of its activities or the ownership of its properties makes such qualification or licensing necessary. The Mortgagor is a single asset entity and owns no other assets except the Property and all of the real property and personal property related thereto. 2.6. Power and Authority. The Mortgagor has the lawful power to own or lease its properties„ including the Property, and to engage in the business it now conducts or proposes to conduct. The Mortgagor is duly authorized to enter into, execute, deliver and perform all of the terms and provisions of the Loan Documents to which the Mortgagor is a party, to incur the Obligations and to perform the Mortgagor's obligations under the Loan Documents. All necessary action required to authorize the execution, delivery and performance of the Loan Documents to which the Mortgagor is a party has been properly taken by the Mortgagor. 2.7. Validity and Binding Effect. The Loan Documents to which the Mortgagor is a party have been duly executed and delivered by the Mortgagor. The Loan Documents, when executed and delivered by the Mortgagor, will constitute legal, valid and binding obligations of the Mortgagor, enforceable against the Mortgagor in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors' rights generally and except as such enforceability may be limited by the availability of equitable remedies. 2.8. No Conflict. Neither the execution and delivery of the Loan Documents by the Mortgagor, nor the incurrence of the Obligations, the consummation of the transactions contemplated by the Loan Documents or compliance with the terms and provisions of the Loan Documents will conflict with, constitute a default under or result in any breach of (1) the terms and conditions of the Mortgagor's Certificate of Limited Partnership, Limited Partnership Agreement or other organizational documents, (ii) any Governmental Rule or (iii) any material agreement, instrument, order, writ, judgment, injunction or decree to which the Mortgagor is a party or by which it is bound or is subject, or will result in the creation or enforcement of any Encumbrance whatsoever upon any of the Mortgagor's properties, including the Collateral, whether now owned or hereafter acquired, except for Permitted Encumbrances. 2.9. Litigation. There are no actions, suits, proceedings or investigations, at law or in equity, before any Governmental Authority, court or arbitrator, pending or, to the Mortgagor's knowledge, threatened (i) against the Property, (ii) which purport to affect the rights and remedies of the Mortgagee pursuant to the Loan Documents or which purport to restrain or enjoin (either temporarily, preliminarily or permanently) the performance by the Mortgagor of BANK FIN:233692-6 012150-120748 Z ;96 8K 18iJ,_u4 any action contemplated by any of the Loan Documents, or (iii) against the Mortgagor or the Guarantors. 2.10. Compliance with Laws. The Mortgagor has duly complied with, and its properties, including the Property, business operations and leaseholds are in compliance in all material respects with the provisions of all Governmental Rules applicable to the Mortgagor, its properties (including the Property) and the conduct of its businesses. 2.11. Matters Relating to Property. 2.11 a Title. The Mortgagor owns good and indefeasible fee simple absolute title to the Property. None of the Property is subject to any Encumbrance, except for Permitted Encumbrances. The Mortgagor has received all deeds, assignments, waivers, consents, non- disturbance and recognition or similar agreements, bills of sale and other documents and instruments, and has duly effected all recordings, filings and other actions necessary to establish, protect and perfect the Mortgagors right, title and interest'in and to all of the Property. 2.11b Purchase of Materials and Conditional Sales Contracts. No goods, supplies, materials, equipment, fixtures or any other articles of personal property placed in or on the Property were purchased pursuant to, or installed under, any security agreement, financing lease or any other agreement whereby the seller of such items now reserves or purports to reserve title, a lien, the right of removal or repossession, or the right to consider such items personal property, after their incorporation into the Property. 2.11 c Protection Anainst Lien Claims. The Mortgagor has paid, discharged or otherwise satisfied in full all charges, costs and claims for any and all labor, materials and services furnished in connection with the Property. Any and all Liens at any time claimed or filed against or with respect to any part of the Property for labor, materials or services furnished in connection with the Project have been satisfied and discharged in full. 2.11 d No Options. Etc. Except as set forth in Section 7.17 of this Mortgage, the Mortgagor does not own or hold and is not obligated under or a party to, any option, right of first refusal or other contractual right to sell, assign or dispose of any of the Property or any Lease owned by the Mortgagor or to which the Mortgagor is a party. 2.11e Governmental Approvals. All Governmental approvals required to have been or will be at the appropriate time issued or appropriate to enable the Property to be lawfully occupied and used for all of the purposes for which it is currently occupied and used have been lawfully issued and are in full force and effect. There are no actions, suits, proceedings or investigations pending or, to the Mortgagor's knowledge, threatened in connection with any such Governmental approval. 2.11f Condemnation Proceedings. The Mortgagor has not received any notice of and has no knowledge of any pending, threatened or contemplated condemnation proceeding affecting the Property or any part thereof. 2.11g Casualty Loss. No portion of the Property has suffered any material damage by fire or other casualty loss except for those (i) which the Mortgagor has given the Mortgagee notice of and (ii) as to which the Property has been completely repaired and restored to its original condition. BANK_FIN:233692-6 012150-120748 8 81{ 1 86UPM97 2.11 h Use of Property, The current and anticipated use of the Property complies with all applicable zoning ordinances, regulations and restrictive covenants affecting the Property and all other Governmental laws with respect to such current and anticipated use have been satisfied. 2.11i Utilities. All utility services necessary for the operation of the Property for its intended purpose are available at the Property, including water, sanitary and storm sewer, electric, gas and telephone facilities. All such utilities enter the Land through adjoining public streets or, if any pass through adjoining private lands, they do so in accordance with valid easements. 2.11 j Flood Area. No portion of the Land is in an "area of special flood hazard", as defined in the Flood Insurance Act of 1968. 2.11 k Leases. Mortgagor hereby represents that the only Leases or sublease(s) or agreement(s) to lease or sublease all or any part of the Property now in effect (and a Rent Roil summarizing such Leases) have been delivered to, and approved by, the Mortgagee. Mortgagor covenants and agrees that all Leases hereinafter in existence affecting the Property shall not materially deviate from the form of lease previously approved in writing by the Mortgagee, shall be at fair market rental rates and shall comply with Section 5.12 of the Loan Agreement. 2.12, Tax Returns and Payments. The Mortgagor has filed all Federal, state, local and other tax returns required by law to be filed. The Mortgagor has paid all taxes, assessments and other governmental charges levied upon the Mortgagor or any of its respective properties, assets, income or franchises which are due and payable, other than' (i) those presently payable without penalty or interest and (ii) those which are being contested in good faith by appropriate proceedings; and as to each of items (i) and (ii), the Mortgagor, has set aside on its books reserves for such claim as are determined to be adequate by application of the Mortgagor's usual and standard accounting principles consistently applied. The charges, accruals, and reserves on the books of the Mortgagor in respect of Federal, state and local taxes for all fiscal periods to date are adequate, and the Mortgagor does not know of any unpaid assessments for additional Federal, state, local or other taxes for any such fiscal period or any basis therefor. 2.13. Fiscal Year. The Fiscal Year of Mortgagor ends on December 31 of each year. 2.14. Insurance. The Mortgagor currently maintains insurance which meets or exceeds the requirements of Section 3.3 hereof and the applicable insurance requirements set forth In the other Loan Documents, and such insurance is provided by reputable and financially sound insurers and is of such types and at least in such amounts as are customarily carried by, and insures against such risks as are customarily insured against by similar businesses similarly situated and owning, leasing and operating similar properties to those owned, leased and operated by the Mortgagor. All of such insurance policies are valid and in full force and effect. No notice has been given or claim made and no grounds exist to cancel or avoid any of such policies or to reduce the coverage provided thereby. 2.15. Consents and Approvals. Except for the filing of the necessary Loan Documents with the appropriate government office, no order, authorization, consent, license, validation or approval of, or notice to, filing, recording, or registration with any Governmental Authority, or the exemption by any such Governmental Authority, is required to authorize, or is required in BANK FIN:233692-6 012160-120748 t o - !, 9 6Xi8i6K4093 connection with, (i) the execution, delivery and performance of any of the Loan Documents or (ii) the legality, binding effect or enforceability of any of the Loan Documents. 2.16. No Defaults. No event has occurred and is continuing and no condition exists or will exist after giving effect to the Loan to be made under the Loan Documents which constitutes a Default or an Event of Default. 2.17. Offsets and Defenses. The Mortgagor has no offsets, claims or defenses with respect to payment of the Note. 2.18. Full Disclosure. No Loan Document and no other documents, certificate or statement furnished to the Mortgagee by or on behalf of the Mortgagor pursuant to this Mortgage contains any untrue statement of a material fact or omits to state a material fact known to Mortgagor and necessary in order to make the statements contained herein and therein, in light of the circumstances under which they were made, not misleading. There is no fact known to the Mortgagor which materially and adversely affects the business, property, assets, financial condition, results of operations or prospects of the Mortgagor or the Property which has not been set forth in the Loan Documents, or any other documents, certificates and statements (financial or otherwise) furnished to the Mortgagee by or on behalf of the Mortgagor prior to or on the date hereof in connection with the transactions contemplated hereby. 2.19. Management Agreement. There is no management agreement or other agreement relating to the operation, leasing or management of the Property. ARTICLE III AFFIRMATIVE COVENANTS The Mortgagor agrees to comply with all of the terms, conditions and covenants set forth in the Note, the Loan Agreement and the other Loan Documents, all of which are incorporated herein by reference as if set forth herein. In addition, the Mortgagoragrees as follows: 3.1. Use of Proceeds. Proceeds of the Loan shall be used by the Mortgagor only (1) to refinance certain loans made to the Borrower for Phase I of the Property, (ii) construct the Improvements on the Property pursuant to the Loan Agreement and (iii) for Mortgagee approved costs related to the Closing. 3.2. Payment Obligations. The Mortgagor shall promptly pay and/or perform all of the Obligations according to the terms of the Note, the Agreement and the other Loan Documents. 3.3. Insurance. The Mortgagor shall maintain and keep in force, or cause to be maintained or kept in force, the following insurance at its sole cost and expense: (i) Insurance against loss or damage to the Property under a policy or policies covering such risks as are ordinarily insured against by similar businesses. No policy of insurance shall be written such that the proceeds thereof will produce less than the minimum coverage required by this Section by reason of co-insurance provisions or otherwise. Such insurance shall name Mortgagee as an additional insured and a loss payee. BANK_FIN:233692-6 012150-12074 §K I ` --% u 1 ?1g0 9 (ii) Comprehensive general public liability insurance for injuries to Persons and damage to property, in an amount to be determined by Borrower and approved by Lender, which approval shall not be unreasonably withheld. Such insurance shall name the Mortgagee as an additional insured. (iii) Contractor's general public liability insurance, builder's risk/property/hazard insurance and worker's compensation insurance for injuries to Persons and damage to property, in an amount to be determined by Mortgagor and approved by Mortgagee. Such insurance shall name Mortgagee as "an additional insured" and the builder's dsk/property/hazard insurance shall name Mortgagee as "mortgagee-loss payee." (iv) A flood insurance policy satisfactory to the Mortgagee if at any time the Property is in an area that has been identified as having special flood and mudslide hazards, and flood insurance is available in such area. In the event that the Property is not in an area having special flood and mudslide hazards, the Mortgagor shall, or shall cause the Mortgagor's insurance company or a surveyor or appraiser satisfactory to the Mortgagee to, deliver to the Mortgagee upon request a certificate or letter issued by such insurance company, surveyor or appraiser stating that the Property is not in such a flood or mudslide hazard area. (v) Upon completion of construction of the Improvements (as defined in the Loan Agreement), as the Improvements are completed, business interruption and rent loss insurance covering, at all times, twelve (12) months of operation, as approved by Mortgagee. Such insurance shall name Mortgagee as an additional insured. (vi) Such other and further insurance as may be reasonably required from time to time by the Mortgagee in order to comply with regular requirements and practices of the Mortgagee in similar transactions. Each policy of insurance shall (i) be issued by one or more recognized, financially sound and responsible insurance companies approved by the Mortgagee and which are qualified or authorized by the Laws of the state where the Property is located to assume the risks covered by such policy, (ii) with respect to the insurance described under the preceding paragraphs (other than paragraphs (b) and (c) above), have attached thereto standard non-contributing, non-reporting mortgagee clauses in favor of and entitling the Mortgagee without contribution to collect any and all proceeds payable under such Insurance, (iii) provide that such policy shall not be canceled or modified without at least thirty (30) days prior written notice to the Mortgagee, and (iv) provide that any loss otherwise payable thereunder shall be payable notwithstanding any act or negligence of the Mortgagor which might, absent such agreement, result in a forfeiture of all or a part of such insurance payment. Unless an escrow has been established for insurance premiums pursuant to the provisions of this Mortgage, the Mortgagor shall promptly pay all premiums when due on such insurance and, not less than fifteen (15) days prior to the expiration dates of each such policy, the Mortgagor will deliver to the Mortgagee a renewal policy or policies marked "premium paid" or accompanied by other evidence satisfactory to the Mortgagee of payment or of arrangements for payment satisfactory to the Mortgagee. The Mortgagor will immediately give the Mortgagee notice of any cancellation of, or change in, any insurance policy. The Mortgagee shall not, because of accepting, rejecting, approving or obtaining insurance, incur any liability for the existence, nonexistence, form or legal sufficiency thereof, the solvency of any insurer, or the payment of losses. BANK FIN:233692.6 012150-120748 11 6K1886PG4100 3.4. Adiustment of Condemnation and Insurance Claims. The Mortgagor shall give prompt notice to the Mortgagee of any Casualty or any Condemnation or threatened Condemnation which has affected or may affect the Property. If the Mortgagor is not vigorously pursing the below referenced action or proceeding by appropriate actions, the Mortgagee is authorized, at its sole option, to commence, appear in and prosecute, in its own or the Mortgagor's name, any action or proceeding relating to any Condemnation or Casualty, and to settle or compromise any Claim in connection therewith. In such case, the Mortgagee may also deduct from any payment all of its Enforcement Costs incurred or advanced in connection therewith. The Mortgagor agrees it will not settle or compromise any such Claim without the prior written consent of the Mortgagee not to be unreasonably withheld. If the Mortgagee elects not to adjust a Claim, the Mortgagor agrees to promptly pursue the settlement and compromise of the Claim subject to the Mortgagee's approval not to be unreasonably withheld. If, prior to the receipt by the Mortgagee of any Condemnation Award or insurance proceeds, the Property shall have been sold pursuant to the provisions of Article VI hereof, the Mortgagee shall have the right to receive such funds to the extent of (a) any deficiency found to be due upon such sale with interest thereon (whether or not a deficiency judgment on this Mortgage shall have been sought or recovered or denied), and (b) any amounts necessary to reimburse the Mortgagee for Enforcement Costs advanced or incurred in connection therewith. The Mortgagor agrees to execute and deliver from time to time, upon the request of the Mortgagee, such further instruments or documents as may be requested by the Mortgagee to confirm the grant and assignment to the Mortgagee of any Condemnation Awards or insurance proceeds. 3.5. Application of Net Proceeds. (i) If, at any time prior to the payment and performance in full of all of the Obligations, the Property or any part thereof is damaged as the result of any Casualty or taken as the result of any Condemnation, the Net Proceeds resulting from any such Casualty or Condemnation will be deposited with the Mortgagee and applied, at the sole option of the Mortgagee, either (A) to the payment of the Obligations in the order of priorities as the Mortgagee in its sole discretion shall determine, or (B) if the conditions set forth in subsection (ii) below are satisfied, to the restoration of the portion of the Property which was so affected by any Casualty or to the acquisition of other land, in the case of a Condemnation; provided,. however, that if less than twenty-five percent (25%) of one (1) Building is damaged as a result of any Casualty or Condemnation, the Mortgagor shall have the option to restore that portion of the Property if the conditions set forth in subsection (ii) below are satisfied. (ii) The Mortgagee may determine to apply the Net Proceeds resulting from any Casualty or any Condemnation to the restoration of the portion of Property which is so affected by any Casualty or Condemnation only if: (A) no Event of Default has occurred and Is continuing hereunder or under the Note or any other Loan Document; (B) as a result of such Casualty or Condemnation, in the sole opinion of the Mortgagee, (1) there has been no impairment to the creditworthiness of the Mortgagor and, (2) the funds available for such restoration are sufficient to pay the costs of such restoration; and (C) the Mortgagee has received a request from the Mortgagor in writing, within thirty (30) days from the date of the Casualty or Condemnation, requesting that the Mortgagee make the Net Proceeds resulting from such Casualty available for the restoration of the Property. BANK FIN:233692-6 012150-120748 DK 18 S 6 Pb 4 1,2 O (iii) In the event that the Net Proceeds are to be applied to the restoration of the Property in accordance with this Section 3.5, the following additional conditions must be met and complied with: (A) The Net Proceeds and, if necessary, additional deposits made by the Mortgagor which, in the sole judgment of the Mortgagee, would be sufficient to restore the Property to its condition immediately prior to the Casualty, shall be deposited into an escrow account acceptable to the Mortgagee. (B) The Mortgagor will proceed promptly to restore that part of the Property damaged by any such Casualty, to substantially the same condition as it existed prior to such Casualty. (C) The Mortgagor will cause withdrawals to be made from such escrow account to pay the costs of such restoration, either on completion thereof or as the work progresses. (D) Of such Net Proceeds in the escrow account, 90% shall be disbursed upon the Mortgagor's request in installments and amounts and in accordance with the following: (1) at the time of each disbursement no Event of Default shall have occurred and be continuing, (2) with respect to each disbursement and accompanying each request therefor, there shall be delivered to the Mortgagee (1) a certificate signed by the Mortgagor specifying in reasonable detail the items of cost to be reimbursed from the Net Proceeds and certifying that, to the best of the Mortgagor's knowledge and belief, no Event of Default has occurred and is continuing, that such disbursement is to pay the cost of restoration not paid previously by any other prior disbursement, that all restoration completed to the date has been completed in accordance with the then applicable laws, ordinances and codes, and that the amount of such disbursement, together with all other disbursements, does not exceed 90% of the aggregate for the first fifty percent (50%) of construction costs and ninety-five percent (95%) of the aggregate for the remaining fifty percent (50%) of construction costs, of all such costs incurred or paid on account of work, labor or services performed and materials installed in or stored upon the Property at the date of such certificate, and (2) evidence satisfactory to the Mortgagee that all claims then existing for labor, services and materials enforceable by the creation of a lien against the Property have been paid in full or provision acceptable to the Mortgagee has been made therefor, and (3) the Mortgagor may make no more than one request for disbursement in any calendar month under the Note and, subject to the satisfaction of the conditions required by (A) and (B) above in each case, the Mortgagee shall make (or cause to be made) no more than two disbursements under the Note in any calendar month. (E) The final 10% of the Net Proceeds in the escrow account shall be disbursed only upon delivery to the Mortgagee, in addition to the items required by item (D) above, of the following: BANK FIN:233692-6 012150-120748 13 °K 18 88?S', 02 (1) evidence satisfactory to the Mortgagee that all claims then existing or labor, services and materials enforceable by the creation of a lien against the Property have been paid in full or provision acceptable to the Mortgagee has beeh made therefor, (2) a title endorsement issued by a title insurance company satisfactory to the Mortgagee covering the Property, as restored pursuant hereto, and satisfactory to the Mortgagee as to amount of coverage, title exceptions, types and coverage of endorsements, and such other matters as the Mortgagee shall reasonably require, and (F) All restoration shall be performed pursuant to development drawings approved by the Mortgagee and by a contractor or contractors approved in advance by the Mortgagee. (G) All moneys held in the escrow account shall constitute a part of the collateral for the Obligations, and the Mortgagor hereby assigns, pledges and grants to the Mortgagee a security interest in the escrow account and all proceeds thereof in order to secure the payment and performance of the Obligations. (H) Any balance of the Net Proceeds remaining after the payment of all of the costs of any restoration or acquisition of additional property permitted above shall be applied to the payment or prepayment of the Obligations in such order and manner as the Mortgagee may determine. 3.6. Property Assessments: Tax and Insurance E crow. (i) The Mortgagor will (A) promptly pay in full and discharge all Property Assessments, and (B) exhibit to the Mortgagee, upon demand, the receipted bills for such Property Assessments prior to the day upon which the same shall become delinquent. Property Assessments shall be considered delinquent as of the first day any interest or penalties commence to accrue thereon. (ii) In the event of the passage of any Law subsequent to the date of this Mortgage in any manner changing or modifying the Laws now in force governing the taxation of mortgages or debts secured by mortgages or the manner of collecting any such taxes so as to adversely affect the Mortgagee (including, without limitation, a requirement that intemal revenue stamps be affixed to this Mortgage or any of the other Loan Documents), the Mortgagor will promptly pay any such tax. If the Mortgagor fails to make such prompt payment, or if any Law prohibits the Mortgagor from making such payment or would penalize the Mortgagee If the Mortgagor makes such payment, then the entire unpaid balance of the Obligations shall, upon 120 days prior written notice (or any less notice required by such Law), Immediately become due and payable at the sole option of the Mortgagee. In no event, however, shall any Income taxes of the Mortgagee or franchise taxes of the Mortgagee measured by income, or taxes in lieu of such income taxes or franchise taxes, be required to be paid by the Mortgagor. 3.7. Additions to Security. All right, title, and interest of the Mortgagor in and to all Improvements and Additions hereafter constructed or placed on the Property and In and to any Equipment Collateral hereafter acquired shall, without any further mortgage, conveyance, assignment or other act by the Mortgagor, become subject to the Lien of this Mortgage as fully and completely, and with the same effect, as though now owned by the Mortgagor and specifically described in the granting clauses hereof. The Mortgagor agrees, however, to BANK F1N,233692-6 012150-120748 14 SK1886-rG4103 execute and deliver to the Mortgagee such further documents as may be required pursuant to the provisions of this Mortgage. 3.8. Inspection, The design of the Improvements and the work performed in the development of the Property shall be satisfactory to Mortgagee. The Mortgagor will permit the Mortgagee, or any Person authorized by the Mortgagee, to enter and make inspections of the Property and the design of the Improvements in a manner that will not unreasonably interfere with the business operations of the Mortgagor, at all reasonable times, upon one day prior written notice to the Mortgagor, and as often as may be requested by the Mortgagee. Mortgagor may engage an inspector to inspect all Improvements and the progress of the development thereof. Mortgagor shall reimburse Mortgagee for all inspection fees. 3,9. Mana ament. The Mortgagor at all times shall provide for the competent and responsible management, operation, marketing and sale of the Property. Any management, operating, marketing or sales contract or contracts affecting the Property must be approved in writing by the Mortgagee prior to the execution of the same which approval will not be unreasonably withheld or delayed; provided however that any such contracts shall at all times be subject to and subordinate to this Mortgage; and, further, provided, however, that the Mortgagor and such contracting party shall execute a subordination of management agreement with terms and conditions reasonably satisfactory to the Mortgagee. 3.10. Estoppel Certificates, Within ten (10) days after any request by the Mortgagee or a proposed assignee or purchaser of the Obligations or any part thereof, the Mortgagor shall certify in writing to the Mortgagee, or to such proposed assignee or purchaser, the then unpaid balance of the Obligations or any part thereof and whether to the best of the Mortgagor's knowledge at such time, the Mortgagor has any right of defense or setoff to the payment or performance of any of the Obligations. 3.11. Subrogation. To the extent permitted by Law, the Mortgagee shall be subrogated, notwithstanding its release of record, to any Lien now or hereafter existing on the Property to the extent that such Lien is paid or discharged by the Mortgagee. This Section shall not be deemed or construed, however, to obligate the Mortgagee to pay or discharge any Lien. 3.12. Permitted Contests. The Mortgagor shall not be required to pay any Property Assessment, or to comply with any Law, so long as the Mortgagor shall in good faith, and at its cost and expense, contest the amount or validity thereof, or take other appropriate action with respect thereto, in good faith and in an appropriate manner or by appropriate proceedings; provided that (i) such proceedings operate to prevent the collection of, or-other realization upon, the Property Assessment or enforcement of the Law so contested, (ii) there will be no sale, forfeiture or loss of the Property during the contest, (iii) the Mortgagee is not subjected to any Claim, and (iv) the Mortgagor provides assurances satisfactory to the Mortgagee (including, without limitation, the establishment of an appropriate reserve account with the Mortgagee) of its ability to pay such Property Assessment or comply with such Law in the event the Mortgagor is unsuccessful in its contest. Each such contest shall be promptly prosecuted to final conclusion or settlement, and the Mortgagor shall indemnify and save the Mortgagee harmless against all Claims in connection therewith. Promptly after the settlement or conclusion of such contest or action, the Mortgagor shall comply with such Law and/or pay and discharge the amounts which shall be levied, assessed or imposed or determined to be payable, together with all penalties, tines, interests, costs and expenses in connection therewith. BANK FIN:233692-6 012150-120748 15 SKI886PG4104 3.13. Other Reports, Information and Notices. The Mortgagor will deliver to the Mortgagee, within the time periods set forth below, the following other reports, information and notices: (i) Notice of Defaults and Material Adverse Effect. Promptly after the Mortgagor has learned of the occurrence or existence of a Default, Event of Default, an event or set of circumstances which has had or which may have a material adverse effect, a telephonic notice thereof specifying the details thereof, the anticipated effect thereof and the action which the Mortgagor or the affected Person has taken, is taking or proposes to take with respect thereto, which notice shall be promptly confirmed in writing within five days by the Mortgagor, (ii) Notice of Litigation. (A) Promptly after the commencement thereof, written notice of any action, suit, proceeding or investigation before any Governmental Authority, court or arbitrator affecting (1) the Property which if adversely decided would have a Material Adverse Effect on the Borrower or the Property or (2) the Mortgagor or the Guarantors which, if adversely determined, would result in a material adverse change, and (B) promptly after the Mortgagor has notice thereof, written notice of any decision, ruling, judgment, appeal, reversal or other significant action in connection with any such action, suit, proceeding or investigation. 3.14. Additional Information: Inspection. The Mortgagor shall deliver or cause to be delivered to the Mortgagee such additional financial statements, reports, financial projections, notices and other information, whether or not financial in nature, with respect to the Property and any guarantor as the Mortgagee may reasonably request from time to time. The Mortgagor will permit the Mortgagee and the Mortgagee's designated employees, agents and representatives (i) to have access, at any time and from time to time, upon reasonable notice and during normal business hours, to visit and inspect the Property, (ii) to examine, audit and make copies of any of the Mortgagor's books of record and books, records and accounting data and other documents of the Mortgagor relating to the Property and the Loan and at any time and from time to time, upon reasonable notice and during normal business hours, to such reports and returns as the Mortgagor may file with any Governmental Authority, and (iii) to discuss the Mortgagor's affairs and accounts and the Property with, and be advised about them by, the Mortgagor and their respective officers and partners. 3.15. Preservation of Existence: Qualification. At its own cost and expense, the Mortgagor will do all things necessary to preserve and keep in full force and effect-its limited partnership existence and qualifications under the laws of the states of their formation and each state where, due to the nature of their activities or the ownership of their properties, qualification to do business is required and where the failure to be so qualified would have a material adverse effect. 3.16. Compliance with Laws and. Contracts. The Mortgagor shall comply with all applicable Govemmental Rules (including, but not limited to, Environmental Laws as defined in the Environmental Indemnity Agreement of even date herewith executed by Mortgagor and Mortgagee) and the terms and conditions of all Governmental Approvals, with respect to the Property and its use, operation and rental. The Mortgagor shall comply with all material provisions of each material contract and agreement to which the Mortgagor is a party and which relates to the Property. 3.17. Accounting System; Books and Records, The Mortgagor shall maintain a system of accounting established and administered in accordance with the Mortgagor's usual and standard accounting principles consistently applied and will set aside on its books all such proper reserves as shall be required by the Mortgagor's usual and standard accounting BANK_FIN:233692-6 012150-120748 16 $K 1 o8Grr4 105 principles. Further, the Mortgagor will maintain proper books of record and account in accordance with the Mortgagor's usual and standard accounting principles in which full, true and correct entries shall be made of all of its properties and assets and its dealings and business affairs. 3.18. Payment of Taxes and Other Liabilities. The Mortgagor shall promptly pay and discharge all liabilities to which it is subject or which are asserted against it, including but not limited to all taxes, assessments and governmental charges and levies upon it or upon any of its income, profits, or properties, including but not limited to the Property prior to the date on which penalties attach thereto; rop vided, however, that for purposes of this Mortgage, the Mortgagor shall not be required to pay any tax, assessment, charge or levy (i) the payment of which is being contested in good faith by appropriate and lawful proceedings diligently conducted and (ii) as to which the Mortgagor shall have set aside on its books reserves for such claim as are determined to be adequate by the application of GAAP consistently applied, but only to the extent that failure to discharge any such liabilities would not result in any additional liability which would have a material adverse effect; and provided, further, that the Mortgagor shall pay all such contested liabilities if the failure to do so would result in an Encumbrance on any of the Property which is not a Permitted Encumbrance. At the request of the Mortgagee from time to time, the Mortgagor shall promptly deliver to the Mortgagee satisfactory evidence of the payment of real estate taxes and assessments relating to the Property. 3.19. Maintenance of Property. The Mortgagor shall, at its own expense, maintain, preserve, protect and keep the Property and the roadways, sidewalks, utility installations, curbs and vaults, if any, in good repair and condition and make all necessary and proper repairs, renewals and replacements so that the Property shall at all times be in good condition and fit and proper for the respective purposes for which it was originally intended, so that Mortgagor's requirements to maintain and develop the Property pursuant to the Loan Documents are complied with. 3.20. Indemnification. The Mortgagor shall indemnify and hold the Mortgagee harmless from and against all liabilities, claims, damages, costs and expenses (including but not limited to the legal fees and disbursements of the Mortgagee's counsel) in any actions or proceedings now or hereafter pending or threatened against the Mortgagee arising out of, resulting from, or in any manner relating to the Property, including without limitation, any violations of any Governmental Approvals, Governmental Rules or any defective workmanship or materials occurring in connection with the Project. Immediately upon demand by the Mortgagee, the Mortgagor shall defend any such action or proceeding brought against the Mortgagee, or the Mortgagee may elect to conduct Is own defense at the expense of the Mortgagor. Any inspection or approval of the Property shall not be deemed or construed to limit or impair the Mortgagee's rights under any of the Loan Documents in any manner whatsoever. The provisions of this Section shall survive the termination of this Mortgage and the repayment of the Obligations. 3.21. Alterations. Except as set forth in the Loan Agreement, the Mortgagor shall not make any material alterations, additions, renovations or additional Improvements to the Property without the prior written consent of the Mortgagee. 3.22. Further Assurances . At any time and from time to time, upon the Mortgagee's request within ten (10) days of such Request, the Mortgagor shall make, execute and deliver, and shall cause any other Person to make, execute and deliver, to the Mortgagee, and where appropriate shall cause to be recorded or filed, and from time to time thereafter to be re-recorded and refiled at such time and in such offices and places as shall be deemed desirable by the Mortgagee, BANK FIN:233692-6 012150-120748 17 SK 1888PG 4106 any and all such further security documents, certificates and other documents and instruments as the Mortgagee may consider necessary or desirable in order to effectuate, complete, perfect, continue or preserve the Obligations of the Mortgagor hereunder or under the other Loan Documents and the Encumbrances created thereby. 3.23. Indebtedness. The Mortgagor shall not create, incur, assume or permit to exist or remain outstanding any indebtedness secured by the Property except for the indebtedness owed by the Mortgagor to the Mortgagee pursuant to the Loan Documents. 3.24. Encumbrances. The Mortgagor shall not create, assume;' incur or suffer to exist any Encumbrance upon the Property or any of the Collateral (as defined in the Loan Documents) except for Permitted Encumbrances. 3.25. Limited Partnership Matters. The Mortgagor shall not (i) change its name without giving the Mortgagee 60 days' prior written notice thereof, (ii) change from a limited partnership to any other type of entity without the Mortgagee's prior written consent, or (iii) amend its Limited Partnership Agreement without the Mortgagee's prior written consent. 3.26. Use of Property. The Mortgagor shall not use the Property for any purpose or in any manner which is in any way inconsistent with or contrary to the use of the Property as contemplated by and as set forth in any of the Loan Documents. 3.27. Continuation Title Search. Mortgagor, at Mortgagor's expense, shall furnish to Mortgagee, upon Mortgagee's request, a continuation title search evidencing the status of the title records for the Property. If said continuation title search discloses the entry of mechanic's liens or materialmen's liens, mortgages, judgments or other encumbrances except as permitted hereby, Mortgagor shall cause such lien or liens to be forthwith discharged of record by bonding or otherwise, and Mortgagor's failure to do so within the earlier of thirty (30) days of imposition or prior to additional requests for advances of Loan funds, but in any event prior to notice of sale or notice of execution on such lien or judgment, shall, at the option of the Mortgagee, constitute an Event of Default under this Mortgage and shall entitle Mortgagee, at its option, to exercise all of its rights and remedies afforded Mortgagee when an Event of Default has occurred under this Mortgage. 3.28. Capital Adeauacv. If (i) at any time any Governmental Authority shall require National city corporation, a Delaware corporation, its successors or assigns, or Mortgagee, whether or not the requirement has the force of law, to maintain, as support for the Loan, capital in a specified minimum amount that either is not required or is greater than that required at the date of this Mortgage, whether the requirement is Implemented pursuant to the "risk-based capital guidelines" (published at 12 CFR 3 in respect of "national banking associations," 12 CFR 208 in respect of "state member banks," and 12 CFR 225 in respect of "bank holding companies") or otherwise, and (ii) as a result thereof the rate of return on capital of National City Corporation, its successors or assigns, or Mortgagee or both (taking into account their then policies as to capital adequacy and assuming full utilization of their capital) shall be directly or indirectly reduced by reason of any new or added capital thereby attributable to the Loan, then, and in each such case, Borrower shall, on Mortgagee's demand, pay Mortgagee as an additional fee such amounts as will in Mortgagee's reasonable opinion reimburse National City Corporation, its successors and assigns, and Mortgagee for any such reduced rate.of return. In determining the amount of any such fee, Mortgagee may use reasonable averaging and attribution methods. Each determination by Mortgagee shall be conclusive absent manifest error. 13ANK_FIN:233692-6 012150-120748 18 BK 1886PG4 107 ARTICLE IV NEGATIVE COVENANTS 4.1. Encumbrances. Without the prior written consent of the Mortgagee, the Mortgagor will not permit the Property or any part thereof to become subject to. any Encumbrances other than the Permitted Encumbrances. The Mortgagor shall give the Mortgagee notice of any default under any Lien and notice of any foreclosure or threat of foreclosure. 4.2. Transfer of the Property; Due on Sale Provision. The Mortgagor agrees that any sale, conveyance, further encumbrance or other transfer of title to the Property or any interest therein (whether voluntarily or by operation of law), except as otherwise permitted in the Note, without the Mortgagee's prior written consent, shall result in immediate acceleration of the Obligations. For the purpose of, and without limiting the generality of the foregoing, the occurrence at any time of any of the following events, except as otherwise permitted in the. Note or without the Mortgagee's prior written consent, shall be deemed to be an unpermitted transfer of the Property, shall constitute an Event of Default hereunder and therefore shall result in acceleration: (i) any sale conveyance, assignment, or other transfer of (including installment land sale contracts), or the grant of a security interest (except for Permitted Encumbrances) in, all or any part of the legal and/or equitable title to the Property; or (fi) any sale, conveyance, assignment, or other transfer of, or the grant of a security interest in, any partnership interest in Mortgagor. Any consent by the Mortgagee, or any waiver of an Event of Default, under this Section shall not constitute a consent to, or waiver of any right, remedy or power of the Mortgagee upon a subsequent Event of Default under this Section. 4.3. Alterations. Additions and Improvements. Except as set forth in Section 3.1 and except by application of Net Proceeds (to the extent permitted by Article III hereof), the Mortgagor will not construct any additional Improvements on the Land without the prior written consent of the Mortgagee which shall not be unreasonably withheld or delayed. No portion of the Improvements or the Equipment Collateral, or any other improvements or equipment now or hereafter covered by the lien and security interest of this Mortgage, shall be removed, demolished or materially altered without the prior written consent of the Mortgagee; except that the Mortgagor may remove any Equipment Collateral (i) which is contemporaneously replaced by comparable Equipment Collateral of equal or greater quality and value (but solely for the purpose of replacement), (ii) temporarily for a reasonably short period solely for the purpose of necessary repairs or (iii) which is obsolete or worn-out, provided in each such case that the Mortgagor (A) gives the Mortgagee at least 30 days prior notice of such removal or replacement, (B) provides to the Mortgagee adequate evidence of the replacement or obsolescence of such removed Equipment Collateral and of the quality and value of the replacement Equipment Collateral, and (C) ensures (to the Mortgagee's satisfaction) that all replacement Equipment Collateral is free and clear of all Liens except for the Liens of the Mortgagee and of any subsequent holder of the Note. 4.4. Restrictive Covenants. Zoning, etc. Without the prior written consent of the Mortgagee, the Mortgagor will not (i) initiate, join in, or consent to any change in, any restrictive covenant, easement, zoning ordinance, or other public or private restrictions, limiting or defining the uses BANK_FIN:233692-6 012150-120748 19 BK 18 uo GL; 1 08 which may be made of the Property and have a material adverse affect on the business operations of the Mortgagor or use of the Property or (ii) enter into any amendment, extension or other modification of or any replacement for any of the Restrictive Covenants Agreements. The Mortgagor will (1) promptly perform and observe, and cause to be performed and observed, all of the terms and conditions of all agreements affecting the Property, and (ii) do or cause to be done all things necessary to preserve intact and unimpaired any and all easements, appurtenances and other interests and rights in favor of, or constituting any portion of, the Property. 4.5. Distributions. Mortgagor shall not make any distributions of any kind whatsoever to the partners of Mortgagor if there occurs any Event of Default under or specified in this Mortgage or any other Loan Document. ARTICLE V EVENTS OF DEFAULT The occurrence of any of the following events shall constitute a default under the provisions of this Mortgage, and the term "Event of Default" shall mean, whenever it is used in this Mortgage, any of the following events: 5.1. Defaults Under Note. The occurrence of an Event of Default, as defined in the Note; or 5.2. Defaults Under This Mortgage. (1) The failure of the Mortgagor to perform, observe or comply with any of the provisions of this Mortgage set forth in Sections 3.2 and 4.1; (ii) the violation of or a default under the provisions of Section 4.2; or (iii) the failure of the Mortgagor to perform, observe or comply with any other provisions of this Mortgage and such failure described in this item (iii) is not cured to the satisfaction of the Mortgagee within a period of thirty (30) days after such failure; or 5.3. Defaults Under the Loan Agreement. The occurrence of ad Event of Default, as defined in the Loan Agreement; or 5.4. Event of Default Under Other Loan Documents. A default occurs under any other Loan Document governing all or any portion of the Property, including, without limitation, any Permitted Encumbrances, and all applicable grace periods with respect to such default have expired; or 5.5. Uninsured Damage. If any portion of the Improvements essential to the continued operation of the Property is substantially damaged or destroyed by an uninsured casualty. ARTICLE VI RIGHTS AND REMEDIES Upon the occurrence of any Event of Default, the Mortgagee may at any time thereafter exercise any of the following rights, powers or remedies: BANK_FIN:233692.6 012150-120748 24 SKI885-H4 109 6.1. Acceleration. The Mortgagee may declare (without notice to the Mortgagor and without presentment, demand, protest or notice of protest or of dishonor, all of which the Mortgagor hereby waives) the Obligations to be immediately due and payable. 6.2. Foreclosure. The Mortgagee may institute an action of mortgage foreclosure, or take such other action as the law may allow for the enforcement thereof and realization on the mortgage security or any other security which is herein or elsewhere provided for, and proceed thereon to final judgment and execution thereon for the entire unpaid balance of the Obligations, with interest, at the rates and pursuant to the methods of calculation specified in the Note and this Mortgage to the date of default and thereafter at the Default Rate in the Note together with all other sums secured by this Mortgage, all costs of suit, with interest at the Default Rate provided in the Note and this Mortgage, on any judgment obtained by Mortgagee from and after the date of any sheriffs sale of the Property (which may be sold in one parcel or in such parcels, manner or order as Mortgagee shall elect) until actual payment is made by the Sheriff of the full amount due Mortgagee and with all reasonable attorney's fees and expenses and a reasonable attorney's commission, without further stay, any law, usage or custom to the contrary notwithstanding. In the event that Mortgagee shall have the right to foreclose this Mortgage, Mortgagor authorizes Mortgagee at its option to foreclose this Mortgage subject to the rights of any tenants parties defendant to any such foreclosure proceeding and to foreclose their rights will not be asserted by Mortgagor as a defense to any proceeding instituted by Mortgagee to collect all or any part of the Obligations or any deficiency remaining unpaid after the foreclosure sale of the Property. After application of payment of proceeds pursuant to Law, the remaining proceeds of such sale or sales under this Mortgage, whether under the assent to a decree, the power of sale, or by equitable foreclosure, shall be held by the Mortgagee and applied in such order of priorities as the Mortgagee in its sole discretion shall determine and the surplus, if any, to the Mortgagor or any Person entitled thereto upon surrender and delivery to the purchaser or purchasers of the Property, and less the Enforcement Costs, if any, of obtaining possession. 6.3. Taking Possession or Control of the Property. Mortgagee personally, or by its agents or attorneys, may enter into and upon all or any part of the Property, and each and every part thereof, and may exclude the Mortgagor, its agents and servants wholly therefrom without liability for trespass, damages or otherwise and Mortgagor agrees to surrender possession to Mortgagee on demand after the happening of any Event of Default; and having and holding the same, may use, operate, manage and control the Property and conduct the business thereof, either personally or by its superintendents, managers, agents, servants, attorneys or receivers; and upon every such entry, Mortgagee, at the expense of the Mortgagor, from time to time, either by purpose, repairs or construction, may maintain and restore the Property, whereof it shall become possessed as aforesaid, may complete the construction of the buildings, structures and improvements and in the course of such completion may make such changes in the contemplated or completed buildings, structures and Improvements as it may deem desirable and may insure the same; and likewise, from time to time, at the expense of the Mortgagor, Mortgagee may make all necessary or proper repairs, renewals and replacements and such useful alterations, additional, betterments and improvements thereto and thereon as to it may deem advisable; and in every such case Mortgagee shall have the right to manage and operate the Property and to carry on the business thereof and exercise all rights and powers of Mortgagor with respect thereto either in the name of Mortgagor or otherwise as it shall deem best; and the Mortgagee shall be entitled to collect and receive all earnings, revenues, rents, issues, profits and income of the Property and every part thereof, and after deducting the expenses of conducting the business thereof and of all maintenance, repairs, renewals, replacements, alterations, additions, betterments and Improvements and amounts necessary to pay for taxes, assessments, insurance and prior or other proper charges upon the Property or BANK_FIN:233692-6 012150-120748 21 BK 18 86; G4 1 10 any part thereof, as well as just and reasonable compensation for the services of Mortgagee and for all attorneys, counsel, agents, clerks, servants and other employees by it properly engaged and employed, Mortgagee shall apply the moneys arising as aforesaid to the Obligations as Mortgagee sees fit. FOR SUCH PURPOSES MORTGAGOR HEREBY AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR MORTGAGOR TO SIGN AN AGREEMENT FOR ENTERING AN ACTION OF EJECTMENT FOR POSSESSION OF THE PROPERTY, AND TO CONFESS JUDGMENT THEREIN AGAINST MORTGAGOR IN FAVOR OF MORTGAGEE, WHEREUPON A WRIT MAY FORTHWITH ISSUE FOR THE IMMEDIATE POSSESSION OF THE PROPERTY, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER; AND FOR SO DOING THIS MORTGAGE OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. In the event that Mortgagee shall have the right to foreclose this Mortgage, Mortgagor authorizes Mortgagee at its option to foreclose this Mortgage subject to the rights of any tenants parties defendant to any such foreclosure proceeding and to foreclose their rights will-not be asserted by Mortgagor as a defense to any proceeding instituted by Mortgagee to collect all or any part of the Obligations or any deficiency remaining unpaid after the foreclosure sale of the Property. 6A. Receivership. The Mortgagee may have a receiver appointed to enter into possession of the Property, collect the earnings, revenues, rents, issues, profits and income therefrom and apply the same as the court may direct. Mortgagee shall be entitled to the appointment of a receiver without the necessity of proving either the inadequacy of the security or the insolvency of Mortgagor or any other person who may be legally or equitably liable to pay moneys secured hereby and Mortgagor and each such person shall be deemed to have waived such proof and to have consented to the appointment of such receiver. Should Mortgagee or any receiver collect earnings, revenues, rents, issues, profits or income from the Property, the moneys so collected shall not be substituted for payment of the Obligations nor can they be used to cure the Event of Default, without the prior written consent of Mortgagee. Mortgagee shall be liable to account only for earnings, revenues, rents, issues, profits and income actually received by Mortgagee. 6.5. Equipment Collateral. Mortgagee shall have such rights and remedies in respect of so much of the Property as may, under applicable law, be personal property, or any part thereof, including Equipment Collateral as are provided by the Uniform Commercial Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Mortgage, including without limitation the right to take possession of the Equipment Collateral wherever located and to sell all or any portion thereof at public or private sale, without prior notice to Mortgagor, except as otherwise required by law (and If notice is required by law, after 5 days' prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Mortgagee in its sole discretion may determine. Upon the occurrence of any Event of Default, Mortgagor, upon demand by Mortgagee, shall promptly assemble any Equipment Collateral and Fixtures Included in the Property and make them available to Mortgagee at a place to be designated by Mortgagee which shall be reasonably convenient to Mortgagee and Mortgagor. After application of payment of proceeds pursuant to law, the remaining proceeds from- any such sale shall be applied in the order of priorities as the Mortgagee In its sole discretion shall determine. 6.6. Other Remedies. Upon the occurrence of an Event of Default hereunder, Mortgagee in pursuance of the foregoing remedies, or in addition thereto, (i) shall be entitled to resort to its BANK FIN:233692-6 012150-120748 22 ?'i{ 18 8 P u 4 1 1 l several securities for the payment of the sums secured hereby in such order and manner, as Mortgagee may think ft without impairing mortgagee's lien in, or rights to, any of such securities and without affecting the liability of any person, firm or corporation for the Obligations, except to the extent that the Obligations shall have been reduced by the actual monetary consideration, if any, received by Mortgagee, from the proceeds of such security; (ii) may, in Mortgagee's sole discretion, release for such consideration, or none, as Mortgagee may require, any portion of the Property without, as to the remainder of the security, in anyway impairing or affecting the lien of this Mortgage, or the priority thereof, or improving the position of any subordinate lienholder with respect thereto, except to the extent that the Obligations shall have been reduced by the actual monetary consideration, if any, received by Mortgagee for such release; and/or (iii) may accept the assignment or pledge of any other property in place thereof as Mortgagee may require without being accountable for so doing to any other lienor. No recovery of any judgment by Mortgagee and no levy of an execution under any judgment upon the Property or upon any other property of Mortgagor shall affect in any matter or to any extent, the lien of this Mortgage upon the Property or any part thereof, or any liens, rights, powers or remedies of Mortgagee hereunder, but such liens, rights, powers and remedies of Mortgagee shall continue unimpaired as before. 6.7. Liens: Set-Off. As security for the payment of the Obligations and the performance of the Loan Documents, the Mortgagor hereby grants to the Mortgagee a continuing security interest and Lien on, in and upon all indebtedness, deposits (general or special), credits, balances, monies, securities and other property of the Mortgagor and all proceeds thereof, both now and hereafter held or received by, in transit to, or due by, the Mortgagee. In addition to, and without limitation of, any rights of the Mortgagee under applicable Laws, if any Event of Default occurs, the Mortgagee may at any time and from time to time thereafter, without notice to the Mortgagor, set-off, hold, segregate, appropriate and apply at any time and from time to time thereafter all such deposits, credits, balances (whether provisional or final and whether or not collected or available), monies, securities and other property toward the payment of all or any part of the Obligations in such order and manner as the Mortgagee in its sole discretion may determine and whether or not the Obligations or any part thereof, shall then be due. 6.8. Remedies, etc. Cumulative. Each right, power and remedy of the Mortgagee as provided for in this Mortgage or in the Note or in the Loan Documents or now or hereafter existing under applicable Laws or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for in this Mortgage or in the Note or in the Loan Documents or now or hereafter existing under applicable Laws or otherwise, and the exercise or beginning of the exercise by the Mortgagee of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by the Mortgagee of any or all such other rights, powers or remedies. 6.9. No Waiver by Mortgagee, etc. No course of dealing between the Mortgagee and the Mortgagor shall be effective to amend, modify or change any provisions of this Mortgage or the other Loan Documents. No failure or delay by the Mortgagee to insist upon the strict performance by any term, covenant or agreement of this Mortgage or of any of the other Loan Documents, or to exercise any right, power or remedy consequent upon a breach thereof, shall constitute a waiver of any such term, covenant or agreement or of any such breach, or preclude the Mortgagee from exercising any such right, power or remedy at any later time or times. By accepting payment after the due date of any of the Obligations, the Mortgagee shall not be deemed to waive the right either to require prompt payment when due of all other Obligations, or to declare an Event of Default for failure to make prompt payment of any such other Obligations. Neither the Mortgagor nor any other Person now or hereafter obligated for the payment of the BANK FIN:233692-6 012150-120748 23 ,K 188uO,r4 1 12 whole or any part of the Obligations shall be relieved of such liability by reason of (i) the failure of the Mortgagee to comply with any request of the Mortgagor or of any other Person to take action to foreclose this Mortgage or otherwise enforce any of the provisions of this Mortgage, or (ii) any agreement or stipulation between any subsequent owner or owners of the Property and the Mortgagee, or (iii) the Mortgagee extending the time of payment or modifying the terms of this Mortgage or any of the other Loan Documents without first having obtained the consent of the Mortgagor or such other Person. Regardless of consideration, and without the necessity for any notice to or consent by the holder of any subordinate Lien on the Property, the Mortgagee may release any Person at any time liable for any of the Obligations or any part of the security for the Obligations, and may extend the time of payment or otherwise modify the terms of this Mortgage or any of the other Loan Documents without in any way impairing or affecting the Lien of this Mortgage or the priority of this Mortgage over any subordinate Lien. The holder of any subordinate Lien shall have no right to terminate any Lease regardless of whether or not such Lease is subordinate to this Mortgage. The Mortgagee may resort to the security or collateral described in this Mortgage or any of the other Loan Documents in such order and manner as the Mortgagee may elect in its sole discretion. 6.10. Waivers and Agreements Regarding Remedies. Mortgagor hereby waives and releases (i) all errors, defects and imperfections except for service of process In any proceedings instituted by Mortgagee under this Mortgage, (ii) all benefit that might accrue to Mortgagor by virtue of any present or future laws exempting the Property, or any part of the proceeds arising from any sale thereof, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment, (Ili) all benefits that might accrue to Mortgagor from requiring valuation or appraisement of any part of the Property levied or sold on execution of any judgment recovered for the Obligations secured hereby, and (iv) all notices not herein elsewhere specifically required, of Mortgagors default or of Mortgagee's exercise, or election to exercise, any option under this Mortgage. Mortgagor further agrees to waive the issuance and service of process and enter its voluntary appearance in any action, suit or proceeding brought in connection with any Event of Default and if required by Mortgagee, to consent to the appointment of a receiver or receivers of the Property and of all the earnings, revenues, rents, issues, profits and income thereof. Mortgagor will not at any time insist upon, or plead, or in any manner whatever, claim or take any benefit or advantage of any stay or extension or moratorium law, any exemption from execution or sale of the Property or any part thereof, wherever, enacted, now or at any time hereafter in force, which may affect the covenants and terms of performance of this Mortgage, nor claim, take or insist upon any benefit or advantage of any law now or hereafter in force providing for the valuation or appraisal of the Property, or any part thereof, prior to any sale or sales thereof which may be made pursuant to any provision herein, or pursuant to the decree, judgment or order of any court of competent jurisdiction; nor, after any such sale or sales, claim or exercise any right under any statute heretofore or hereafter to redeem the property so sold, or any part thereof. Mortgagor hereby expressly waives all benefit or advance of any such law or laws, and covenants not to hinder, delay, impede the execution of, any power herein granted or delegated to Mortgagee, but to suffer and permit the execution of every power as though no such law or laws had been made or enacted. Mortgagor, for itself and all who may claim under, it, waives, to the extent that it lawfully may, all right to have the Property marshaled upon any foreclosure hereof. BANK_FlN:233692-6 0121W120748 24 SK1886PUG 4113 ARTICLE VII GENERAL PROVISIONS 7.1. After-Acguired Property. The lien of this Mortgage will automatically attach, without further act, to all after-acquired property located in or on, or attached to, or used or intended to be used solely in connection with or with the operation of the Property or any part thereof. 7.2. Hazardous Materials. Mortgagor and Guarantors have executed and delivered to the Mortgagee an Environmental Indemnity Agreement dated on or about the date hereof ("Environmental Indemnity Agreement") and the terms and conditions of such Environmental Indemnity Agreement are incorporated herein by reference as if more fully set forth herein. The liability of Mortgagor and the Guarantors to Mortgagee under the Environmental Indemnity Agreement shall survive any foreclosure of this Mortgage or any transfer of the Property by deed in lieu of foreclosure, or satisfaction of this Mortgage. At any time hereafter when Mortgagee has a reasonable cause to believe that Hazardous Materials (as defined in the Environmental Indemnity Agreement) may be located on the Property in violation of any Law, terminating only upon repayment in full of the Obligations (and for such purpose of repayment from proceeds of foreclosure sale shall not be deemed repayment of such indebtedness), Mortgagee may require Mortgagor to provide Mortgagee, at the expense of Mortgagor, an inspection or audit of the Property, prepared by a qualified consultant approved by Mortgagee, in form and substance satisfactory to Mortgagee, certifying as to the presence or absence of Hazardous Materials, and Mortgagee may require Mortgagor to permit Mortgagee to so inspect or audit the Property at Mortgagor's expense, and Mortgagor hereby grants Mortgagee, its employees, agents and independent contractors, the right to enter upon the Property for the purpose of conducting tests, soil borings, the installation of monitoring wells and such other tests as Mortgagee deems necessary or desirable. 7.3. Regulated Waters. Mortgagor covenants and represents that there are no Regulated Waters (as herein defined) located in, on or around the Property that would preclude use of the Property for the purposes set forth in this Mortgage and the Loan Documents and that the Regulated Waters will not be disturbed by such contemplated renovation or construction. As used herein, the terms "Regulated Waters" shall mean wetlands, streams, flood plains or other similar environmentally sensitive areas that may be regulated pursuant to any federal or state acts or regulations. Mortgagor further covenants and represents. that the improvements to be placed on the Property by Mortgagor shall not be located in or on any Regulated Waters or in any applicable buffer zones, unless a permit for such improvements has previously been obtained prior to the date of the execution hereof. As used in this Section, the term "improvements" shall mean any structure, roadway, dam, bridge, fill, dredged material or any other activity or material that in any manner changes, expands, diminishes, encroaches or obstructs any Regulated Waters. At any time hereinafter, terminating only upon repayment in full of the Obligations (and, for such purpose, repayment from the proceeds of a foreclosure sale shall not be deemed repayment of such indebtedness), Mortgagee, if it has a reasonable good faith belief that the warranties herein are not accurate, may require Mortgagor to provide Mortgagee, at the expense of Mortgagor, with an inspection or audit of the Property, proposed by a qualified consultant approved by Mortgagee, in form and substance satisfactory to Mortgagee, certifying that the improvements placed on the Property by Mortgagor are not located in, on or around any BANK_F1N:233692-6 012150-120748 25 BK1888Pi;4114 Regulated Waters or in any applicable buffer zones, that there has been no violation of any permit granted for any activity in, on or around any Regulated Waters on the Property, and that there is no violation of any state or federal act or regulations governing Regulated Waters. Mortgagee reserves the right at any time when Mortgagee has reasonable cause to believe that Regulated Water may be located on the Property, in its sole and absolute discretion, to retain, at Mortgagor's expense, an independent professional consultant to review any report prepared by Mortgagor or on behalf of Mortgagor as to the presence on or in the Property of any Regulated Waters and/or to conduct its own investigation of the Property. Mortgagor hereby grants to Mortgagee, its agents, employees, consultants and contractors the right to enter upon the Property and to perform such tasks on the Property as may be reasonably necessary to perform such review and/or investigation. Mortgagor also agrees to indemnify Mortgagee and defend and save Mortgagee harmless from, against and for and in respect to all damages, loss, liabilities and deficiencies, including but not limited to, reasonable attorneys' fees, and other costs and expenses incidental to any suit, investigation, claim or proceeding, which are suffered, sustained, incurred or required to be paid by Mortgagee and are caused by the presence of Regulated Waters in, on or around the Property and/or any violation of a federal or state act or regulation governing such Regulated Waters. Mortgagor shall promptly notify Mortgagee in writing of any Order, pending or threatened action by any regulatory agency or other governmental body relating to Regulated Waters or any violation of any act or regulation governing Regulated Waters, and shall promptly furnish Mortgagee with copies of any correspondence or legal pleadings in connection therewith. The liability of Mortgagor to Mortgagee under the covenants of this Section shall survive any foreclosure of this Mortgage or any transfer of the Property by deed in lieu of foreclosure, or satisfaction of this Mortgage. 7.4. Costs and Expenses. The Mortgagor shall pay, together with any interest or penalties imposed in connection therewith, all expenses incidental to the preparation, execution, acknowledgment, delivery or recording of this Mortgage, including all riling, registration or recording fees and all recordation, stamps, transfer or other taxes, assessments and charges now or hereafter required by any Governmental Authority in connection therewith. 7.5. Right to Perform and Indemnity. (i) If the Mortgagor fails to make any payment required hereunder or to otherwise perform, observe or comply with any of the provisions hereof, the Mortgagee, without notice to or demand upon the Mortgagor, may (but shall be under no obligation to) remedy any such failure by advancing funds or taking such action for the account and at the expense of the Mortgagor as the Mortgagee shall deem to be necessary or appropriate. All funds so advanced and all costs, expenses and fees incurred by the Mortgagee in advancing such funds or taking such action shall be a part of the Enforcement Costs secured hereby. No payment or action by the Mortgagee pursuant to this subsection shall be deemed or construed to cure an Event of Default or waive any right or remedy of the Mortgagee. (ii) If the Mortgagee institutes or becomes a party to any action or proceeding concerning this Mortgage or the Property (or any part thereof or interest therein) or of the occupancy thereof by the Mortgagor, including, without limitation, any action or proceeding in which it is or becomes necessary or appropriate to defend or uphold the Lien of this Mortgage, BANK-F1 N:233692-6 012150-120748 26 BK 1886 P u? 1 1 S then and in any such event the Mortgagor shall Indemnify against, defend and hold the Mortgagee and its partners, directors, officers, employees and agents harmless from any and all Claims, losses, damages, liabilities, costs, fees, and expenses (including, without limitation, attorneys' fees and expenses) suffered, advanced or incurred by the Mortgagee in connection with or as a result of any such action or proceeding, All such Claims, losses, damages, liabilities, costs, fees and expenses, together with interest thereon from the date suffered advanced or incurred until paid in full at the Default Rate, shall be paid by the Mortgagor on demand and shall be a part of the Obligations secured hereby. (iii) The Mortgagor agrees to pay to the Mortgagee on demand all Enforcement Costs incurred or advanced hereunder by or on behalf of the Mortgagee, together with interest thereon at the Default Rate from the date incurred or advanced until paid in full. 7.6. Further Assurances. At any time, and from time to time, upon request by the Mortgagee, the Mortgagor will, at the Mortgagors expense, (i) correct any defect, error or omission which may be discovered in the form or content of any of the Loan Documents, and (ii) make, execute, deliver and record, or cause to be made, executed, delivered and recorded, any and all further instruments, certificates, and other documents as may, in the opinion of the Mortgagee, be necessary or desirable in order to complete, perfect or continue and preserve the Lien of this Mortgage. Upon any failure by the Mortgagor to do so within ten (10) days of such Request, the Mortgagee may make, execute and record any and all such instruments, certificates and documents for and in the name of the Mortgagor, all at the sole expense of the Mortgagor, and the Mortgagor hereby irrevocably appoints the Mortgagee the agent and attorney-in-fact of the Mortgagor to do so, this appointment being coupled with an interest. With respect to any financing statement, the Mortgagor agrees that a carbon, photographic or other reproduction of a security agreement or a financing statement is sufficient as a financing statement for purposes of the Uniform Commercial Code. Mortgagor acknowledges and agrees that the power of attorney herein granted is for the benefit of the Mortgagee and does not require the Mortgagee to act for the benefit of Mortgagor as principal; and the power of attomey herein granted is not intended to make the Mortgagee a fiduciary for Mortgagor. The Mortgagee hereby accepts this power of attorney and all powers granted hereunder for the benefit of the Mortgagee. Mortgagor hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Section 7.6 is irrevocable and coupled with an interest. 7.7 Notices. All notices required to be delivered to Mortgagor or Mortgagee hereunder shall be in writing and shall be delivered in the manner and to the addresses specified in the Note. All notices delivered hereunder shall be effective as described in the Note. 7.8. Security Agreement Under Uniform Commercial Code. This Mortgage shall constitute a Security Agreement within the meaning of the Uniform Commercial Code, and the Mortgagee shall have all the rights of a secured party under the Uniform Commercial Code. Notwithstanding the filing of a financing statement covering any of the Property in the records normally pertaining to personal property, all the Property, for all purposes and in all proceedings, legal or equitable, shall be regarded, at the Mortgagee's option (to the extent permitted by Law) as part of the Land or Improvements whether or not any such item is physically attached to the Land or Improvements. The mention in any such financing statement of any of the Property shall never be construed as in any way derogating from or Impairing this declaration and it is the hereby stated intention of the parties that such mention in any such financing statement is hereby declared to be for the protection of the Mortgagee in the event any court shall at any time hold that notice of the Mortgagee's priority of interest, to be effective BANK_FIN:233692-6 012150-120748 27 S i 886; u 16 against any third party, including any Governmental Authority, must be filed in the Uniform Commercial Code records. 7.9. Multiple Collateral Transaction. The Mortgagor acknowledges that this Mortgage and a number of the other Loan Documents together secure the Obligations. The Mortgagor agrees that the Lien of this Mortgage shall be absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever of'the Mortgagee and, without limiting the generality of the foregoing, the Lien hereof shall not be Impaired by and acceptance by the Mortgagee of any security for or guarantors upon any of the Obligations hereby secured, or by any failure, neglect or omission on the part of the Mortgagee to realize upon or protect any of the Obligations hereby secured or any collateral security therefor, including the Loan Documents. The Lien hereof shall not in any manner be impaired or affected by any release (except as to the property released), sale, pledge, surrender, compromise, settlement, renewal, extension, indulgence, alteration, exchange, modification or disposition of any of the Obligations hereby secured or of any of the collateral security therefor, including the Loan Documents or any guarantee thereof, and the Mortgagee may in its discretion, and subject to applicable law, foreclose, exercise any power of sale, or exercise any other remedy available to it under any of or all of the other Loan Documents without first exercising or enforcing any of its rights and remedies hereunder. Such exercise of the rights and remedies of the Mortgagee under any of or all the other Loan Documents shall not in any manner impair the Obligations hereby secured or the Lien of this Mortgage and any exercise of the rights or remedies of the Mortgagee hereunder shall not impair the Lien of any of the other Loan Documents or any of the rights and remedies thereunder of the Mortgagee. The Mortgagor specifically consents and agrees that the Mortgagee may exercise its rights and remedies hereunder and under the other Loan Documents separately or concurrently and in any order that the Mortgagee may deem appropriate. 7.10. Successors and Assi4ns. All of the grants, covenants, terms, provisions and conditions of this Mortgage shall run with the Land and shall apply to and bind the successors and assigns of the Mortgagor (including any permitted subsequent owner of the Property or any part thereof), and shall inure to the benefit of the Mortgagee, its successors and assigns and to the successors in trust of the Mortgagee. 7.11. No Warranty by Mortgagee. By inspecting the Property or by accepting or approving anything required to be observed, performed or fulfilled by the Mortgagor or to be given to the Mortgagee pursuant to this Mortgage or any of the other Loan Documents, the Mortgagee shall not be deemed to have warranted or represented the condition, sufficiency, legality, effectiveness or legal effect of the same, and such acceptance or approval shall not constitute any warranty or representation with respect thereto by the Mortgagee. 7.12. Amendments. This Mortgage may not be modified or amended except by an agreement in writing, signed by the parties against whom enforcement of the change is sought. 7.13. Severability. In case one or more provisions contained in this Mortgage or in the other Loan Documents shall be invalid, illegal or unenforceable in any respect under any Law, the validity, legality and enforceability of the remaining provisions contained herein and in the other Loan Documents shall remain effective and binding on the parties thereto and shall not be affected or impaired thereby. BANK_FIN:233692-6 012150-120748 28 3''{ 18 8 oi'u41 17 7.14. Applicable Law. This Mortgage and the rights and obligations of the parties hereunder shall be construed and interpreted in accordance with the Laws of the Commonwealth of Pennsylvania, both in interpretation and performance. 7.15. Time of Essence. Time is of the essence with respect to all those dates and times provided in this Mortgage and the other Loan Documents which are dates and times that relate to obligations of the Mortgagor. 7.16. WAIVER OF JURY TRIAL. THE MORTGAGOR AND THE MORTGAGEE IRREVOCABLY WAIVE ANY AND ALL RIGHTS EACH MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS MORTGAGE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS MORTGAGE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE MORTGAGOR ACKNOWLEDGES THAT THE FOREGOING WAIVER HAS BEEN NEGOTIATED AND IS KNOWING AND VOLUNTARY. -' [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] BANK_FIN:233692-6012150-120748 } 29p ? ' VU01U ?t' 1 8 THE MORTGAGOR ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS OF THIS MORTGAGE, INCLUDING THE CONFESSION OF JUDGMENT AND WAIVER OF JURY TRIAL PROVISIONS, AND HAS BEEN ADVISED BY COUNSEL AS NECESSARY OR APPROPRIATE. IN WITNESS WHEREOF, the Mortgagor, intending to be legally bound hereby, has caused this Open-End Mortgage and Security Agreement to be executed as a document under seal as of the day and year first written above. WITNESS: GRAY DRIVE, LP, a Pennsylvania limited partnership By:. GRAY GRIFFIN, LLC, a Pennsylvania limited liability company Its: General Partner . X40Q N e: Walter D. Enick By: (SEAL) Na T. Simpson Title: Bing Member BANK_FIN:233692-6 012150-120748 30 Certificate of Residence of Mortgagee The undersigned certifies that the address of the Mortgagee is National City Center, 20 Stanwix Street, Pittsburgh, Pennsylvania 15222, NATIONAL CITY P4NK OF PENNSYLVANIA By: r? Name: La ren r oehlich Title: a Pr BANK_ FIN:233692-6 012150-120748 31 81{ 18 88; =: 1 20 COMMONWEALTH OF PENNSYLVANIA COUNTY OF ALLEGHENY SS: On this, the 28th day of October, 2004, before me, a Notary Public, personally appeared Hugh J. T. Simpson, who acknowledged himself to be the Managing Member of GRAY GRIFFIN, LLC, a Pennsylvania limited liability company, and the General Partner of GRAY DRIVE, LP, a Pennsylvania limited partnership, and that he as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained, and in the capacity therein stated, by signing his name as such officer. IN WITNESS WHEREOF, I hereunto set my hand and official seal. No ary Pu Ic My Commission Expires: NOTARIAL SEAL KEUJE M SMWART Notary Pubic U CWrn* m DO*& Oct 6 2007 BANK FIN:233682-6 012150-120748 32 6,,j 188bIU 12 1 EXHIBIT A -- Page 1 of 5 COMBINATION OF LOT 1, LOT 2. AND PROPOSED RIGHT-OF-WAY ALL THAT CERTAIN parcel of ground known as the combination of Lot 1, Lot 2, and the proposed English Drive/Gray Drive right-of-way as shown on a plan entitled "Final Subdivision and Land Development Plan for Graham Hill Apartments" recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page 5 on March 20, 2002, located in the Township of Upper AlIeu, within the County of Cumberland, in the Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT: Beginning at a point on the eastern side of the Eighty foot (80') right-of-way of South Market Street (S.R. 0114) at the southwest corner of lands now or formerly of Fulton J. and Colleen Kennedy as recorded in Deed Book 181 page 1042; Thence along said lands of Kennedy the following three (3) courses: 1.) South Eighty-nine Degrees Four Minutes Thirty-five Seconds East (S 89°04'35" E) a distance of Four Hundred Seventy-nine and Eighty-nine Hundredths feet (479.89') to a %2" rebar found; 2.) South Fourteen Degrees Twenty-five Minutes Nine Seconds East (S 14°25'09" E) a distance of Two Hundred Eighty-seven and Sixty-nine Hundredths feet (287.69) to an iron pipe with tack found; 3.) North Fifty-eight Degrees Thirty-six Minutes Fifty-three Seconds East (N 58°36'53" E) a distance of One Hundred Sixty-seven and Forty-three Hundredths feet (167.43') to a'/z" rebar found at lands now or formerly of Waren and Mary Persak as recorded in Deed Book 107 page 146; Thence along said lands now or formerly of Waren and Mary Persak and continuing along lands now or formerly of Gary A. and Judy Dambach as recorded in Deed Book 130 page 892 South Twenty-five Degrees Thirty-nine Minutes Three Seconds East (S 25039'03" E) a distance of Two Hundred Eighty and Nineteen Hundredths feet (280.19') to a'/?" rebar found at lands now or formerly of David and Gina Jablomski as recorded in Deed Book 101 page 930; Thence along said lands now or formerly of David and Gina Jablomski South Forty-four Degrees Twenty-five Minutes Thirty-five Seconds East (S 45°25'35" E) a distance of Seventy and Zero Hundredths feet (70.00') to a %" rebar found at lands now or formerly of John and Eileen Difonzo 'as recorded in Deed Book 105 page 689; Thence along said lands now or formerly of John and Eileen Difonzo South One Degree Eighteen Minutes Fifteen Seconds West (S 019 8'15" W) a distance of Seventy-seven and Forty-four Hundredths feet (77.44') to a'/z" rebar found at lands now or formerly of Ralph and Gail Palmer as recorded in Deed Book 195 page 452; Thence along said lands now or formerly of Ralph and Gail Palmer South Seven Degrees Fifty-six Minutes Sixteen Seconds East (S 07°56' 16" E) a distance of Seventy-five and Thirty-eight Hundredths feet (75.3 8') to a %" rebar found at lands now or formerly of Mathew J. and Carole R. Brown as recorded in Deed Book 180 page 1003; Thence along said lands now or formerly of Mathew J. and Carole R. Brown South One Degree Fifty 'ylinutes Forty-two Seconds East (S 01°50'42" E) a distance of Eighty-three and Fifty-five Hundredths feet H1886HLit122 EXHIBIT A - Page 2 of 5 (83.55') to a'/2" rebar fo,.-.,1 at lands now or formerly of Phillip and Barbara Cain as reci,-..ad in Deed Book 126 page 1184; Thence along said lands now or formerly of Phillip and Barbara Cain the following two (2) courses: 1.) South Twenty-three Degrees Fifty-one Minutes Sixteen Seconds West (S 23°51' 16" W) a distance of Fifty-three and Fifty-six Hundredths feet (53.56') to a'/z" rebar found; 2.) South Sixty-two Degrees Five Minutes Twenty-two Seconds West (S 62005'22" W) a distance of Fifty-three and-Seventy-eight Hundredths feet (53.78') to a'/2" rebar found at lands now or formerly of Gene and Lorie Below as recorded in Deed Book 111 page 356; Thence along said lands now or formerly of Gene and Lorie Below South Twenty-nine Degrees Forty-four Minutes Forty-nine Seconds West (S 2904449" W) a distance of One Hundred One and Fifty Hundredths feet (101.50') to a'/z" rebar found at lands now or formerly of Deborah Witcomb as recorded in Deed Book 204 page 778; Thence along said lands now or formerly of Deborah Witcomb South Sixteen Degrees Twenty Minutes Fifty-one Seconds West (S 16°20'51" W) a distance of Eighty-three and Ninety-seven Hundredths feet (83.97') to a point at lands now or formerly of Arlington Hills Homeowners as recorded in Deed Book 30-X page 514; Thence along said lands now or formerly of Arlington Hills Homeowners the following four (4) courses; 1.) North Sixty-one Degrees Thirty-six Minutes Nine Seconds West (N 61136'09" W) a distance of One Hundred Thirty-five and Sixty-three Hundredths feet (135.63) to a point; 2.) By a curve to the right having a radius of Three Hundred Twenty-six and Fifty-six Hundredths feet (326.56') an arc length of One Hundred Fifty-five and Fifty-three Hundredths feet (155.53'), said curve having a chord bearing South Fifty-five Degrees Fifty-seven Minutes Five Seconds West (S 55°57'05" W) and a chord length of One Hundred Fifty-four and Six Hundredths feet (154.06') to a point; 3.) By a curve to the left having a radius of Twenty-five and Thirty-eight Hundredths feet (25.38') an arc length of Thirty and Fifty-eight Hundredths feet (30.58'), said curve having a chord bearing of South Thirty-five Degrees Four Minutes Forty-four Seconds West (S 35°04'44" W) and a chord length of Twenty-eight and Seventy-six Hundredths feet (28.76') to a point; 4.) South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43" W) a distance of Twenty-eight and Seventy-four Hundredths feet (28.74') to a point at lands now or formerly of Geir Magnusson as recorded in Deed Book 215, page 268; Thence along the northern side of a Sixty foot (60') right-of-way of English Drive North Eighty-nine Degrees Twenty-six Seconds Seventeen Seconds West (N 89°26'17" W) a distance of Thirty and Zero Hundredths feet (30.00') to a point on said right-of-way; Thence along the same South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43" W) a distance of Twenty-two and Twenty-two Hundredths feet (22.22') to a point on the same; Thence continuing along said right-of-way North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89°12'09" W) a distance of Thirty and Five Hundredths feet (30.05') to a''/2" rebar found at lands now or formerly of Janet Cross as recorded in Deed Book 199 page 882; Thence along said lands now or formerly of Janet Cross North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89°12'09" W) a distance of One Hundred Fifteen and Twenty.-eight Hundredths feet ;115.28') to a'/2" rebar found; SK 18 8 6 'ING 4 12 3 EXHIBIT - Page 3 of 5 Thence along the same and continuing along lands now or formerly of Keith and Joyce Sealover as recorded in Deed Book 172 page 85, lands now or formerly of Scott and Carol Moser as recorded in Deed Book 198 page 555, lands now or formerly of Harry T. Dunn as recorded in Deed Book 31-X page 895, lands now or formerly of Joe and Sue Peck as recorded in Deed Book 31-Y page 77, lands now or formerly of Phillip Sullivan 11, lands now or formerly of Michael DeJoseph as recorded in Deed Book 36-R page 583, lands now or formerly of Michelle L. Nissly as recorded in Deed Book 35-L page 1112, lands now or formerly of Normann L, Bilodeau as recorded in Deed Book 228 page 89, and lands now or formerly of Patrick J. and Gloria J. Duffy as recorded in Deed Book 162 page 336 South Zero Degrees Forty Minutes Forty-nine Seconds West (S 00°40'49" W) a distance of Two Hundred Seventy-eight and Thirty-four Hundredths feet (278.34') to a point at lands now or formerly of Amy E. Bankes as recorded in Deed Book 150 page 837; Thence along said lands now or formerly of Amy E. Bankes and continuing along lands now or formerly of Susan Jamieson as recorded in Deed Book 142 page 190 South Eleven Degrees Forty-two Minutes Zero Seconds East (S 11°42'00" E) a distance of Seventy-two and Ninety-six Hundredths feet (72.96') to a point at lands now or formerly of Anthony T. and Marianne Intreri as recorded in Deed Book 103, page 309; Thence along said lands now or formerly of Anthony T. and Marianne Intreri South Seventy-eight Degrees Eighteen Minutes Zero Seconds West (S 78°18'00" W) a distance of Seventy-eight and Twenty-eight Hundredths feet (78.28') to a point at lands now or formerly of Hostetter Family Trustees as recorded in Deed Book 109, page 1029; Thence along said lands now or formerly of Hostetter Family Trustees North Seven degrees Ten Minutes Seventeen Seconds West (N 07°10'17" W) a distance of Two Hundred Thirty-seven and Sixty-nine Hundredths feet (237.69') to an iron pipe found at lands of the same; Thence along the same and continuing along lands now or formerly of James C. and Patricia A. Wolf as recorded in Deed Book 32-X page 48 North Twelve Degrees Forty-nine Minutes Thirty-three Seconds West (N 12°49'33" W) a distance of Two Hundred Forty-one and Thirty-eight Hundredths feet (241.38') to a point at lands now or formerly of Gray Drive LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive LP the following Three (3) courses: 1.) North Fifty-three Degrees Thirteen Minutes Sixteen Seconds East (N 53°13' 16" E) a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13') to a point; 2.) North Sixteen Degrees Zero Minutes Forty Seconds West (N 16°00'40" W) a distance of One Hundred Thirty and Forty-six Hundredths feet (130.46') to a point; 3.) South Sixty-eight Degrees Twenty-three Minutes Zero Seconds West (S 68°23'00" W) a distance of Three Hundred Three and Forty-four Hundredths feet (303.44') to a point on the eastern side of the Fifty foot (50') right-of-way of Gray Drive; Thence along said right-of-way North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Twenty-four and Ninety-five Hundredths feet (24.95') to a point on the same; Thence along the same North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Four and Forty-four Hundredths feet (4.44') to a point (said course inadvertently not labeled on the above referenced recorded drawing for Graham Hill Apartments); Thence by a curve to the left having a radius of Three Hundred Thirty-eight and Ninety-five Hundredths feet (338.95') an arc length of Ninety-three and Three Hundredths feet (93.03'), said curve having a chord ..bearing of North Five Degrees Twenty-six Minutes One Second West (N 05°26'01" W) and a chord length of Ninety-two and Seventy-four Hundredths feet (92.74') to a point on the same; 8K1886PG4124 EXHIBIT ` - Page 4 of 5 Thence by a curve to the left having a radius of One Hundred Fifty and Zero Hundredths feet (150.00') an arc length of Thirty-three and Twenty-nine Hundredths feet (33.29'), said curve having a chord bearing of South Fifty-two Degrees Sixteen Minutes Twelve Seconds West (S 52°16' 12" W) and a chord length of Thirty - three and Twenty-two Hundredths feet (33.221) to a point (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an arc length of Seventy-seven and Eighty-nine Hundredths feet (77.89'), a chord bearing of South Fifty-eight Degrees Thirty-seven Minutes Forty-two Seconds West (S 58°37'42" W), and a chord distance of Seventy-seven and Two Hundredths feet (77.02')); Thence by a curve to the left having a radius of Three Hundred Thirteen and Ninety-five Hundredths feet (313.95') an are length of Seventy-four and Seventy-eight Hundredths feet (74.78'), said curve having a chord bearing of North Sixteen Degrees Sixteen Minutes Thirty-five Seconds West(N 16°16'35" W) and a chord length of Seventy-four and Sixty Hundredths feet (74.60') to a nail found (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an are length of One Hundred Thirty- nine and Eighty-nine Hundredths feet (139.89'), a chord bearing of North Ten Degrees Twenty Minutes Seven Seconds West (N 10°20'07" W), and a chord distance of One Hundred Thirty-eight and Seventy-four Hundredths feet (138.74')); Thence North Twenty-three Degrees Eight Minutes Ten Seconds West (N 23°08'10" W) a distance of Sixty-nine and Eighty-six Hundredths feet (69.86') to a railroad spike found within South Market Street (S.R. 0114); Thence South Seventy-eight Degrees Thirty-one Minutes Twenty-four Seconds East (S 78°31'24" E) a distance of Thirty-nine and Seventy Hundredths feet (39.70') to a concrete monument found on the eastern side of the Eighty foot (80') right-of-way of South Market Street (S.R. 0114); Thence along the eastern side of said right-of-way by a curve to the left having a radius of One Thousand Nine Hundred Fifty and Eight Hundredths feet (1,950.08') an arc length of Five Hundred Forty-four and Eighty-eight Hundredths feet (544.88'), said curve having a chord bearing of North Four Degrees Forty- four Minutes Thirty-eight Seconds West (N 04°44'38" W) and a chord length of Five Hundred Forty-three and Eleven Hundredths feet (543.11') to a point on the same at the southwest corner of lands now or formerly of Fulton J. and Colleen Kennedy as recorded in Deed Book 181 page 1042, the PLACE OF BEGINNING. The above described tract being known as the combination of Lot 1, Lot 2, and the proposed English Drive/Gray Drive right-of-way of the above referenced plan of Graham Hill Apartments and containing Fifteen and Thirty-five Hundredths Acres, more or less (15.35 Acres +/-), LOT 3A & LOT 3B COMBINED ALL THAT CERTAIN parcel of ground known as the combination of lots Lot 3A and Lot 3B as shown on a plan entitled "Final Subdivision and Land Development Plan for Graham Hill Apartments" recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page 5 on March 20, 2002, located in the Township of Upper Allen, within the County of Cumberland, in the Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT: Beginning at a point on the eastern side of the Fifty foot (50') right-of-way of Gray Drive at the northern line of lands now or formerly of James C. & Patricia A. Wolf as recorded in Deed Book 32-X, page 48; Thence along the eastern right-of-way of Gray Drive the following four (4) courses: SK tisasIb 25 EXHIBI''' A - Page 5 of 5 1.) North Two D, ., , ees Twenty-two Minutes Fifty-five Seconds East (N 02°22'5., -E) a distance of Ninety-nine and Seventy-seven Hundredths feet (99.77') to point; 2.) North Two Degrees Twenty-two Minutes Fifty-five Seconds East (N 02°22'55" E) a distance of One Hundred and Sixty-nine Hundredths feet (100.69') to a point; 4.) North Two Degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Eleven and Twelve Hundredths feet (11.12') to point; 5.) North Two Degrees Twenty-five Minutes Forty-seven Seconds. East (N 02025'47" E) a distance of Sixteen and Forty-two Hundredths feet (16.42') to point at lands now or formerly of Gray Drive, LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive, LP the following three (3) courses: 1.) North Sixty-eight Degrees Twenty-three Minutes Zero Seconds East (N 68°23'00" E) a distance of Three Hundred Three and Forty-four Hundredths feet (303.44') to a point; 2.) South Sixteen Degrees Zero Minutes Forty Seconds East (S 16000'40" E) a distance of One Hundred Thirty and Forty-six Hundredths feet (130.46') to a point; 3.) South Fifty-three Degrees Thirteen Minutes Sixteen Seconds West (S 53°13'16" W) a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13') to a point at lands now or formerly of James C. & Patricia A. Wolf as recorded in Deed Book 32-X, page 48; Thence along said lands now or formerly of James C. & Patricia A. Wolf South Eighty Degrees Seven Minutes Thirty-nine Seconds West (S 80007'39" W) a distance of Seventy-three and Forty-two Hundredths feet (73.42') to a point on the eastern side of the Fifty foot (50') right-of-way of Gray Drive, the PLACE OF BEGINNING. The above described tract being known as the combination of lots Lot 3A and Lot 3B of the above referenced Plan of Graham Hill Apartments and containing One and Thirty-seven Hundredths Acres, more or :less (1.37 Acres +/-). ALL OF THE FOREGOING BEING a combination of the following: the premises which Gray Drive, LP, by virtue of a deed from Greenville Agricultural Credit Corporation, a North Carolina Corporation, dated 12/17/99 and recorded 12/27/99 in Cumberland County Deed Book 213, Page 940, and the premises which Gray Drive, LP, by virtue of a deed from Richard E. Mowery and Roberta L. Mowery, dated 09/20/01 and recorded 09/21/01 in Cumberland County Deed Book 248, Page 2326, and the premises which Gray Drive, LP, by virtue of a deed from Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter Day Saints, a Utah Corporation, dated 11/12/01 and recorded 12/10/01 in Cumberland County Deed Book 249, Page 2691. B1?1888Pt,L,126 OPEN-END MORTGAGE AND SECURITY AGREEMENT DATED OCTOBER 28, 2004 BY AND BETWEEN GRAY DRIVE, LP (MORTGAGOR) AND NATIONAL CITY BANK OF PENNSYLVANIA (MORTGAGEE) When Recorded Return To: Walter D. Enick, Esquire Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, Pennsylvania 15222 (412) 594-5608 Certify this to V-e ruccrded BANK_FIN.233692-6012150-120748 p" C:Cjr t1: r Cj L>l l ?1'a B5418 8 6 PG !Y 12 7 EXHIBIT A - Page 1 of 5 COMBINATION OF LOTS LOT 2, AND PROPOSED RIGHT-OF-WAY ALL THAT CERTAIN parcel of ground known as the combination of Lot 1, Lot 2, and the proposed English Drive/Gray Drive right-of-way as shown on a plan entitled "Final Subdivision and Land Development Plan for Graham Hill Apartments" recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page 5 on March 20, 2002, located in the Township of Upper Allen, within the County of Cumberland, in the Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT: Beginning at a point on the eastern side of the Eighty foot (80') right-of-way of South Market Street (S.R. 0114) at the southwest corner of lands now or formerly of Fulton J. and Colleen Kennedy as recorded in Deed Book 181 page 1042; Thence along said lands of Kennedy the following three (3) courses: 1.) South Eighty-nine Degrees Four Minutes Thirty-five Seconds East (S 89°04'35" E) a distance of Four Hundred Seventy-nine and Eighty-nine Hundredths feet (479.89') to a %2" rebarfound; 2.) South Fourteen Degrees Twenty-five Minutes Nine Seconds East (S 14°25'09" E) a distance of Two Hundred Eighty-seven and Sixty-nine Hundredths feet (287.69') to an iron pipe with tack found; 3.) North Fifty-eight Degrees Thirty-six Minutes Fifty-three Seconds East (N 58°36'53" E) a distance of One Hundred Sixty-seven and Forty-three Hundredths feet (167.43') to a'/z" rebar found at lands now or formerly of Waren and Mary Persak as recorded in Deed Book 107 page 146; Thence along said lands now or formerly of Waren and Mary Persak and continuing along lands now or formerly of Gary A. and Judy-Dambach as recorded in Deed Book 130 page 892 South Twenty-five Degrees Thirty-nine Minutes Three Seconds East (S 25°39'03" E) a distance of Two Hundred Eighty and Nineteen Hundredths feet (280.19') to a ''/z" rebar found at lands now or formerly of David and Gina Jablomski as recorded in Deed Book 101 page 930; Thence along said lands now or formerly of David and Gina Jablomski South Forty-four Degrees Twenty-five Minutes Thirty-five Seconds East (S 450'25'35" E) a distance of Seventy and Zero Hundredths feet (70.00') to a ''/z" rebar found at lands now or formerly of John and Eileen Difonzo as recorded in Deed Book 105 page 689; Thence along said lands now or formerly of John and Eileen Difonzo South One Degree Eighteen Minutes Fifteen Seconds West (S 019 8' 15" W) a distance of Seventy-seven and Forty-four Hundredths feet (77.44') to a'/z" rebar found at lands now or formerly of Ralph and Gail Palmer as recorded in Deed Book 195 page 452; Thence along said lands now or formerly of Ralph and Gail Palmer South Seven Degrees Fifty-six Minutes Sixteen Seconds East (S 07°56' 16" E) a distance of Seventy-five and Thirty-eight Hundredths feet (75.38') to a %" rebar found at lands now or formerly of Mathew J. and Carole R. Brown as recorded in Deed Book 180 page 1003; Thence along said lands now or formerly of Mathew, J. and Carole R. Brown South One Degree Fifty Minutes Forty-two Seconds East (S 01150'42" E) a distance of Eighty-three and Fifty-five Hundredths feet SK 836f"G"4 i22 EXHIBIT 31 - Page 2 of (83.55') to a''/z" rebar fo--d at lands now or formerly of Phillip and Barbara Cain as rest-ed in Deed Book 126 page 1184; Thence along said lands now or formerly of Phillip and Barbara Cain the following two (2) courses: 1.) South Twenty-three Degrees Fifty-one Minutes Sixteen Seconds West (S 23°51' l6" W) a distance of Fifty-three and Fifty-six Hundredths feet (53.56') to a''/z" rebar found; 2.) South Sixty-two Degrees Five Minutes Twenty-two Seconds West (S 62°05'22" W) a distance of Fifty-three and-Seventy-eight Hundredths feet (53.78') to a'/2" rebar found at lands now or formerly of Gene and Lorie Below as recorded in Deed Book I I 1 page 356; Thence along said lands now or formerly of Gene and Lorie Below South Twenty-nine Degrees Forty-four Minutes Forty-nine Seconds West (S 29°44'49" W) a distance of One Hundred One and Fifty Hundredths feet (101.50') to a'/2" rebar found at lands now or formerly of Deborah Witcomb as recorded in Deed Book 204 page 778; Thence along said lands now or formerly of Deborah Witcomb South Sixteen Degrees Twenty Minutes Fifty-one Seconds West (S 16°20'51" W) a distance of Eighty-three and Ninety-seven Hundredths feet (83.97') to a point at lands now or formerly of Arlington Hills Homeowners as recorded in Deed Book 30-X page 514; Thence along said lands now or formerly of Arlington Hills Homeowners the following four (4) courses: 1.) North Sixty-one Degrees Thirty-six Minutes Nine Seconds West (N 61 °36'09" W) a distance of One Hundred Thirty-five and Sixty-three Hundredths feet (135.631) to a point; 2.) By a curve to the right having a radius of Three Hundred Twenty-six and Fifty-six Hundredths feet (326.5-6') an arc length of One Hundred Fifty-five and Fifty-three Hundredths feet (155.53'), said curve having a chord bearing South Fifty-five Degrees Fifty-seven Minutes Five Seconds West (S 55°57'05" W) and a chord length of One Hundred Fifty-four and Six Hundredths feet (154.06') to a point; 3,) By a curve to the left having a radius of Twenty-five and Thirty-eight Hundredths feet (25.38') an arc length of Thirty and Fifty-eight Hundredths feet (30.58'), said curve having a chord bearing of South Thirty-five Degrees Four Minutes Forty-four Seconds West (S 35104'44" W) and a chord length of Twenty-eight and Seventy-six Hundredths feet (28.76') to a point; 4.) South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43" W) a distance of Twenty-eight and Seventy-four Hundredths feet (28.74') to a point at lands now or formerly of Geir Magnusson as recorded in Deed Book 215, page 268; Thence along the northern side of a Sixty foot (60') right-of-way of English Drive North Eighty-nine Degrees Twenty-six Seconds Seventeen Seconds West (N 89026'l 7" W) a distance of Thirty and Zero Hundredths feet (30.00') to a point on said right-of-way; Thence along the same South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43" W) a distance of Twenty-two. and Twenty-two Hundredths feet (22.22') to a point on the same; Thence continuing along said right-of-way North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89°12'09" W) a distance of Thirty and Five Hundredths feet (30:05') to a''/2" rebar found at lands now or formerly of Janet Cross as recorded in Deed Book 199 page 882; Thence along said lands now or formerly of Janet Cross North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89112'09" W) a distance of One Hundred Fifteen and Twenty-eight Hundredths feet ;115.28') to a %Z" rebar found; SK 18861G4123 EXHIBIT - Page 3 of 5 Thence along the same and continuing along lands now or formerly of Keith and Joyce Sealover as recorded in Deed Book 172 page 85, lands now or formerly of Scott and Carol Moser as recorded in Deed Book 198 page 555, lands now or formerly of Harry T. Dunn as recorded in Deed Book 31-X page 895, lands now or formerly of Joe and Sue Peck as recorded in Deed Book 31-Y page 77, lands now or formerly of Phillip Sullivan 11, lands now or formerly of Michael DeJoseph as recorded in Deed Book 36-R page 583, lands now or formerly of Michelle L. Nissly as recorded in Deed Book 35-L page 1112, lands now or formerly of Normann L. Bdodeau as recorded in Deed Book 228 page 89, and lands now or formerly of Patrick J. and Gloria J. Duffy as recorded in Deed Book 162 page 336 South Zero Degrees Forty Minutes Forty-nine Seconds West (S 00°40'49" W) a distance of Two Hundred Seventy-eight and Thirty-four Hundredths feet (278.34') to a point at lands now or formerly of Amy E. Bankes as recorded in Deed Book 150 page 837; Thence along said lands now or formerly of Amy E. Bankes and continuing along lands now or formerly of Susan Jamieson as recorded in Deed Book 142 page 190 South Eleven Degrees Forty-two Minutes Zero Seconds East (S 11 142'00" E) a distance of Seventy-two and Ninety-six Hundredths feet (72.96') to a point at lands now or formerly of Anthony T. and Marianne Intreri as recorded in Deed Book 103, page 309; Thence along said lands now or formerly of Anthony T. and Marianne Intreri South Seventy-eight Degrees Eighteen Minutes Zero Seconds West (S 78018'00" W) a distance of Seventy-eight and Twenty-eight Hundredths feet (78.28') to a point at lands now or formerly of Hostetter Family Trustees as recorded in Deed Book 109, page 1029; Thence along said lands now or formerly of Hostetter Family Trustees North Seven degrees Ten Minutes Seventeen Seconds West (N 07°10' 17" W) a distance of Two Hundred Thirty-seven and Sixty-nine Hundredths feet (237.69') to an iron pipe found at lands of the same; Thence along the same and continuing along lands now or formerly of James C. and Patricia A. Wolf as recorded in Deed Book 32-X page 48 North Twelve Degrees Forty-nine Minutes Thirty-three Seconds West (N 12°49'33" W) a distance of Two Hundred Forty-one and Thirty-eight Hundredths feet (241.38') to a point at lands now or formerly of Gray Drive LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive LP the following Three (3) courses: 1.) North Fifty-three Degrees Thirteen Minutes Sixteen Seconds East (N 53°13' 16" E) a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13') to a point; 2.) North Sixteen Degrees Zero Minutes Forty Seconds West (N 16°00'40" W) a distance of One Hundred Thirty and Forty-six Hundredths feet (130.46') to a point; 3.) South Sixty-eight Degrees Twenty-three Minutes Zero Seconds West (S 68°23'00" W) a distance of Three Hundred Three and Forty-four Hundredths feet (303.44') to a point on the eastern side of the Fifty foot (50') right-of-way of Gray Drive; Thence along said right-of-way North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Twenty-four and Ninety-five Hundredths feet (24.95') to a point on the same; Thence along the same North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'4T' E) a distance of Four and Forty-four Hundredths feet (4.44') to a point (said course inadvertently not labeled on the above referenced recorded drawing for Graham Hill Apartments); Thence by a curve to the left having a radius of Three Hundred Thirty-eight and Ninety-five Hundredths feet (338.95') an are length of Ninety-three and Three Hundredths feet (93.03'), said curve having a chord bearing of North Five Degrees Twenty-six Minutes One Second West (N 05°26'01" W) and a chord length of Ninety-two and Seventy-four Hundredths feet (92.74') to a point on the same; BK 188c'G!??!24 EXHIBIT , - Page 4 of 5 Thence by a curve to the left having a radius of One Hundred Fifty and Zero Hundredths feet (150.00') an arc length of Thirty-three and Twenty-nine Hundredths feet (33.29), said curve having a chord bearing of South Fifty-two Degrees Sixteen Minutes Twelve Seconds West (S 52°16' 12" W) and a chord length of Thirty- three and Twenty-two Hundredths feet (33.22') to a point (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an arc length of Seventy-seven and Eighty-nine Hundredths feet (77.89'), a chord bearing of South Fifty-eight Degrees Thirty-seven Minutes Forty-two Seconds West (S 58°37'42" W), and a chord distance of Seventy-seven and Two Hundredths feet (77.02')); Thence by a curve to the left having a radius of Three Hundred Thirteen and Ninety-five Hundredths feet (313.95') an arc length of Seventy-four and Seventy-eight Hundredths feet (74.78'), said curve having a chord bearing of North Sixteen Degrees Sixteen Minutes Thirty-five Seconds West'(N 16'16'3 5" W) and a chord length of Seventy-four and Sixty Hundredths feet (74.60') to a nail found (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an are length of One Hundred Thirty- nine and Eighty-nine Hundredths feet (139.89% a chord bearing of North Ten Degrees Twenty Minutes Seven Seconds West (N 10°20'07" W), and a chord distance of One Hundred Thirty-eight and Seventy-four Hundredths feet (138.74')); Thence North Twenty-three Degrees Eight Minutes Ten Seconds West (N 23°08' 10" W) a .distance of Sixty-nine and Eighty-six Hundredths feet (69.86') to a railroad spike found within South Market Street (S.R. 0114); Thence South Seventy-eight Degrees Thirty-one Minutes Twenty-four Seconds East (S 78°31'24" E) a distance of Thirty-nine and Seventy Hundredths feet (39.70') to a concrete monument found on the eastern side of the Eighty foot (80') right-of-way of South Market Street (S.R. 0114); Thence along the eastern side of said right-of-way by a curve to the left having a radius of One Thousand Nine Hundred Fifty and Eight Hundredths feet (1,950.08') an arc length of Five Hundred Forty-four and Eighty-eight Hundredths feet (544.88'), said curve having a chord bearing of North Four Degrees Forty- four Minutes Thirty-eight Seconds West (N 04°44'38" W) and a chord length of Five Hundred Forty-three and Eleven Hundredths feet (543.11') to a point on the same at the southwest corner of lands now or formerly of Fulton J. and Colleen Kennedy as recorded in Deed Book 181 page 1042, the PLACE OF BEGINNING. The above described tract being known as the combination of Lot 1, Lot 2, and the proposed English Drive/Gray Drive right-of-way of the above referenced plan of Graham Hill Apartments and containing Fifteen and Thirty-five Hundredths Acres, more or less (15.35 Acres +/-), LOT 3A & LOT 3B COMBINED ALL THAT CERTAIN parcel of ground known as the combination of lots Lot 3A and Lot 3B as shown on a plan entitled "Final Subdivision and Land Development Plan for Graham Hill Apartments" recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page 5 on March 20, 2002, located in the Township of Upper Allen, within the County of Cumberland, in the Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT: Beginning at a point on the eastern side of the Fifty foot (50') right-of-way of Gray Drive at the northern line of lands now or formerly of James C. & Patricia A. Wolf as recorded in Deed Book 32-X, page 48; Thence along the eastern right-of-way of Gray Drive the following four (4) courses: g,{1885 4125 3;XHIBI'" A - Page 5 of 5 l.) North Two D,.,,,-ees Twenty-two Minutes Fifty-five Seconds East (N 02°22'5., E) a distance of Ninety-nine and Seventy-seven Hundredths feet (99.77') to point; 2.) North Two Degrees Twenty-two Minutes Fifty-five Seconds East (N 02°22'55" E) a distance of One Hundred and Sixty-nine Hundredths feet (100.69') to a point; 4.) North Two Degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Eleven and Twelve Hundredths feet (11.12') to point; 5.) North Two Degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Sixteen and Forty-two Hundredths feet (16.42') to point at lands now or formerly of Gray Drive, LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive, LP the following three (3) courses: 1.) North Sixty-eight Degrees Twenty-three Minutes Zero Seconds East (N 68°23'00" E) a distance of Three Hundred Three and Forty-four Hundredths feet (303.44') to a point; 2.) South Sixteen Degrees Zero Minutes Forty Seconds East (S 16000'40" E) a distance of One Hundred Thirty and Forty-six Hundredths feet (130.46') to a point; 3.) South Fifty-three Degrees Thirteen Minutes Sixteen Seconds West (S 53°13' 16" W) a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13') to a point at lands now or formerly of James C. & Patricia A. Wolf as recorded in Deed Book 32-X, page 48; Thence along said lands now or formerly of James C. & Patricia A. Wolf South Eighty Degrees Seven Minutes Thirty-nine Seconds West (S 80107'39" W) a distance of Seventy-three and Forty-two Hundredths feet (73.42') to a point on the eastern side of the Fifty foot (50') right-of-way of Gray Drive, the PLACE OF BEGINNING. The above described tract being known as the combination of lots Lot 3A and Lot 3B of the above referenced Plan of Graham Hill Apartments and containing One and Thirty-seven Hundredths Acres, more or less (1.37 Acres ALL OF THE FOREGOING BEING a combination of the following: the premises which Gray Drive, LP, by virtue of a deed from Greenville Agricultural Credit Corporation, a North Carolina Corporation, dated 12/17/99 and recorded 12/27/99 in Cumberland County Deed Book 213, Page 940, and the premises which Gray Drive, LP, by virtue of a deed from Richard E. Mowery and Roberta L. Mowery, dated 09/20/01 and recorded 09/21/01 in Cumberland County Deed Book 248, Page 2326, and the premises which Gray Drive, LP, by virtue of a deed from Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter Day Saints, a Utah Corporation, dated 11/12/01 and recorded 12/10/01 in Cumberland County Deed Book 249, Page 2691. { 1'886U-. 12b FIRST AMENDMENT TO MORTGAGE NOTE This First Amendment to Mortgage Note, dated the 24"' day of January, 2008, to be effective as of October 31, 2007 (the "Effective Date"), by and behvrcn Gray Drive, LP, a Pennsylvania limited partnership (the "Borrower"), and National City Bank, successor by merger to National City Bank of Pennsylvania, a national banking association (the "Bank") (the "Amendment"). W ITNESSETH: WHEREAS, the Borrower and the Bank entered into that Construction Loan Agreement, dated October 28, 2004 (as may be amended, modified or supplemented from time to time, the "Loan Agreement"); and WHEREAS, the Loan (as dcfined in the Loan Agreement) is evidenced by that certain Mortgage Note dated October 28, 2004, in the original principal amount of Nineteen Million Two Hundred Thousand Dollars ($19,200,000.00) made by the Borrower and payable to the Bank (as may be amended, modified or supplemented from time to time, the "Note"); and WHEREAS, the Borrower desires to amend certain provisions of the Note and the other Loan Documents (as defined in the Note) to, among other amendments, extend the Maturity Date, provide for additional equity from the Borrower, collaterally assign the partnership interests in the Borrower to the Bank and require a permanent loan take-out commitment, and the Bank desires to permit such amendments pursuant to the terms and subject ro the conditions set forth herein. NOW, THEREFORE, in consideration of the premises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the. parties hereto agree as follows: I. All capitalized terms used herein that arc defined in the Loan Agreement or the Note shall have the same meaning herein as in the Loan Agreement or the Note unless the context clearly indicates otherwise. The foregoing recitals are incorporated herein by reference. 2. The Borrower hereby acknowledges and agrees that as of January 21, 2008, the outstanding principal balance of the Note is Fifteen Million Four Hundred Seventy- Five Thousand Four Hundred Eighty-One and 00/100 Dollars ($15,475,481.00) lluus. accrued and unpaid interest of Two Hundred Fifty-Four Thousand Nine Hundred Nineteen and 16/100 Dollars ($254,919.60) and other charges. The Borrower waives and releases the Bank from any and all claims, counterclaims, offsets, defenses or other causes of action the Borrower has with respect to the indebtedness evidenced by the Tote and the enforceability thereof, 0063zr:o.0" 3. The Note is hereby amended as follows: 3.01 Section 1.A. is partially amended by d6eting the date "October 31, 2007" and in its stead adding the date "August 31, 2008". 3,02 Section I.B. (the "Extension Option") on pages 2 and 3 is hereby amended by deleting this Section I.B. in its entirety. 3.03 The last paragraph on page 3 consisting of one sentence is hereby amended and restated in its entirety as follows: "The Construction LIBOR Flex Option is sometimes hereinafter referred to as the "LIBOR Options"." 3.04 The fifth paragraph on page 4 of the Note consisting of two sentences is hereby amended and restated in its entirety as follows: "Monthly payments of accrued interest shall be due and payable starting on December 1, 2004, and on the first (tn) day of each month thereafter, through and including the monthly payment due on August 1, 2008. The entire principal balance outstanding hereunder, znd all accrued and unpaid interest hereunder, and any and all costs or expenses relating thereto, shall be due and payable in full, without demand, on August 31, 2008 (the "Maturity Date")." 3.05 The sixth paragraph on page 4 consisting of two sentences is hereby amended by deleting this paragraph in its entirety. 3.06 Section 3.(b) on pages 5 and 6 is hereby amended by deleting this Section 3.(b) in its entirety. 3.07 Section 4 on page 6 is partially amended by amending and restating the first sentence of Section 4 in its entirety as follows: "This Note is issued in connection with the Construction Loan Agreement dated as of even date herewith entered into by and between the Bank and the Borrower, as amended by that certain First Amendment to Construction Loan Agreement dated the 24'h day of January, 2008, to be effective as of October 31, 2007, by and between the Bank and the Borrower (as it may be further amended, modified or supplemented from time to time, the "Construction Loan Agreement"), the Open-End Mortgage and Security -2- a0ss?, 2o.nOC Agreement dated as of even date herewith entered into by and between the Bank and the Borrower as amended by that First Modification to Open-End Mortgage and Security Agreement dated the 20 day of January, 2008, to be effective as of October 31, 2007, by and between the Bank and the Borrower (as it may be further amended, modified or supplemented from time to time, the "Mortgage"), the Assignment of Leases and Rents dated as of even date herewith entered into by and between the Bank and the Borrower as amended by the First Modification to Assignment of Leases and Rents dated the 24'" day of January, 2008, to be effective as of October 31,'2007, by and betwem the Bank and the Borrower (as it may be further amended, modified or supplemented from time to time, the "Assignment of Leases"), the Security Agreement dated as of even date herewith entered into by and between the Bank and the Borrower as amended by the First Amendment to Security Agreement dated the 24i11 day of January, 2008, to be effective as of October 31, 2007, by and between the Bank and the Borrower (as it may be amended, modified or supplemented from time to time, the "Security Agreement") and the two (2) UCC-1 Financing Statements filed in connection with the Security Agreement, the Guaranty and Suretyship Agreement dated as of even date herewith executed by the Guarantors in favor of the Bank as confirmed by the Consent of Guarantors dated the 24th day of January, 2008, to be effective as of October 31, 2007 (as it may be amended, modified or supplemented from time to time, the "Guaranty Agreement"), the Environmental Indemnity Agreement dated as of even dale herewith by and among the Borrower and the Guarantors for the benefit of the Bank (as it may be amended, modified or supplemented from time to time, the "Environmental Indemnity Agreement"), the Pledge Agreement dated the 20 day of January, 2008, to be effective as of October 31, 2007, by and among Gray Griffin, LLC, a Pemisylvania limited liability company (the sole general partner of the Borrower), and the Guarantors for the benefit of the Bank (as it may be amended, modified or supplemented from time to time, the "Pledge Agreement") and the one ()) UCC-1 Financing Statement filed in connection with the Pledge Agreement, and any other security agreements, mortbages.'assignments and other documents and instruments entered into from time to time in connection with this Note, the terms of which are incorporated herein by reference (collectively, the "Loan Documents"), and is secured by the property described in the Loan Documents and by such other -3- cwss2t 20.DOc collateral as previously may have been or may in the future be granted to the Bank to secure this Note." 3.08 Section 9 on page 9 is hereby partially amended by deleting the second paragraph of Section 9 in its entirely. 3.09 The prepayment charge addendum on pages 13 and 14 is hereby amended by deleting the prepayment charge addendum in its entirety. 4. The Borrower hereby reconfirms and reaffirms all representations and warranties, agreements and covenants made pursuant to the terms and conditions of the Note, the Loan Agreement and the other Loan Documents. 5. The Borrower acknowledges and agrees that each and every document, instrument or agreement which at any time has secured payment of the Obligations including, but not limited to, (i) the Guaranty Agreement; (ii) the Mortgage; (iii) the Assignment of Leases; (iv) the Contract Assignment(s); (v) the Environmental Indemnity; (vi) the Security Agreement; and (vii) all UCC-1 financing statements executed and filed with respect to the :Mortgage, the Security Agreement and the Contract Assignment(s), hereby continues to secure prompt payment when due of the Obligations. 6. The Borrower hereby represents and warrants to the Bank that (i) the Borrower has the legal power and authority to execute and deliver this Amendment; (ii) the officers of the Borrower executing this Amendment have been duly authorized to execute and deliver the same and bind the Borrower with respect to the provisions hereof; (iii) the execution and delivery hereof by the Borrower and the performance and observance by the Borrower of the provisions hereof and of the Note, the Loan Agreement, the other Loan Documents and all documents executed or to he executed therewith, do not violate or conflict with the organizational documents of the Borrower or any Law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower and (iv) this Amendment, the Note, the Loan Agreement, the other Loan Documents and the documents executed or to be executed by the Borrower in connection herewith or therewith constitute valid and binding obligations of the Borrower in every respect, enforceable in accordance with their respective terms. 7. The Borrower and the Bank each represent and warrant that after giving effect to this Amendment and the other amendments to other Loan Documents dated of even date herewith, no Event of Default exists under the Note, Loan Agreement or the other Loan Documents, nor will any occur as a result of the execution and delivery of this Amendment or the performance or observance of any provision hereof. After giving effect to this Amendment and the other amendments to the other Loan Documents dated of even date herewith, he Borrower presently has no claims, counterclaims, offsets, defenses or any other cause of action of any kind at Law or in equity against the Bank arising out of or in any way relating to the Note, Loan Agreement or the Loan Documents. -4- WR5? 110. nOC 8. Each reference to the Note that is made in the Note, the Loan Agreement or the other Loan Documents shall hereafter be construed as a reference to the Note-as amended hereby. 9. Except as amended hereby, all of the tenns and conditions of the Note, the Loan Agreement and the other Loan Documents shall remain in full force and effect. This Amendment amends the Note and is not a novation or an accord and satisfaction thereof. 10. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. 11. THE BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT THE NOTE AND THE MORTGAGE CONTAIN PROVISIONS UNDER WHICH THE BANK MAY ENTER JUDGMENT BY CONFESSION AGAINST THE BORROWER. 12. If any tenn or provision set forth in this Amendment is made as a result of the Bank having waived a failure by the Borrower to perform any term or provision of the Note or the other Loan Documents, such waiver granted by the Bank is limited solely to the particular event from which it arose, and no waiver by the Bank shall (a) extend to any other event, default or Event of Default under this Amendment, the Note or any other Loan Document or (b) impair any right or remedy of the Bank consequent thereto. 13. This Amendment is not intended to be a novation, release or accord and satisfaction of the Dote andlor the Mortgage. 14. The Borrower shall execute, or cause to be executed, and delivered to the Bank all other amendments; instruments, agreements, certificates and other documents deemed necessary or appropriate by the Bank in connection herewith. 15. No Bankruptcy Intent. Borrower does not have the present intent to (i) file any voluntary petition under any Chapter of Bankruptcy Code, Title I 1 U.S.C., or to in any manner, seek relief, protection, reorganization, liquidation or dissolution, or similar relief for debtors under any other state, local, federal or other insolvency laws, within the next ninety (90) days, or (ii) directly or indirectly cause any involuntary petition to be filed against Borrower or directly or indirectly cause Borrower to become the subject of any proceedings pursuant to any other state, federal or other insolvency law providing for relief of debtors, either at the present time, or at any time hereafter. 16. No Fraudulent Intent. Neither the execution and delivery of this Amendment nor the performance of any actions required hereunder or described herein is being consummated by Borrower with or as a result of any actual intent by Borrower to hinder, delay or defraud any entity to which Borrower, or any of them, are now or will hereafter become indebted, including but not limited to Bank.. -5- (KINSMOMOC 17. Waiver of Statutes of Limitation Defenses. Borrower by entering into this Amendment waives any rights to assert-defenses to any lien of the Bank or.any other claim of Bank based upon statutes of limitation, period of limitation, lathes or any other defense based on the theory that any lien or any other such claim is time barred. 18. This Amendment shall be binding upon and inure to the benefit of the Borrower and the Bank and their respective successors and assigns. This Amendment shall not be binding upon the Bank until accepted by the Bank, as evidenced by its execution below. [INTENTIONALLY LEFT BLANK) -G- 003S21:C.DOC. IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have caused this Amendment to be effective on the date first above written. WITNESS: WITNESS: Name: Gray Drive, LP, a Pennsylvania limited partnership By: Gray Griffin, LLC, a Pennsylvania limited liability company Its: General Partner By. - N . impson Title: M agi g ember National City Bank By: Name: Kris Voipatti Title: Vice President IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have caused this Amendment to be effective on the date first above written. WITNESS: Gray Drive, LP, a Pennsylvania limited partnership By: Gray Griffin, LLC, a Pennsvlv_ania limited liability company Its: General Partner Name: By: Name: Hugh J. T. Simpson Title: Managing Member WITNESS: Nary LIu LU National City Bank By: ! ?u o Up??? , Name: Kris Volpatti T Title: Vice President ACKNOWLEDGEMENT COMMONWEALTH OF PENNSYLVANIA ) SS; COUNTY OF L ?! ) On this, the a50--% day of January, 2008, before me, a Notary Public, personally appeared Hugh 1. T. Simpson, who acknowledged himself to be the Managing Member of Gray Griffin, LLC, a Pennsylvania limited liability company, the General Partner of Gray Drive, LP, a Pennsylvania limited partnership, and that he as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained, and in the capacity therein stated, by signing his name as such officer. IN WITNESS WHEREOF, I hereunto set my band and official seal. Notary Public My Commission Expires: COMMONWEALTH Of PENNSYLVANIA NOTARIAL SEAL JANICE L. MEADATH, Notary Public City of Harrisbu% Dauphin County My Commission Eames April 30, 2011 1 This document is intended to be recorded in Cumberland County, Pennsylvania RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: THORP REED & ARMSTRONG One Oxford Centre, 10 Floor Pittsburgh, Pennsylvania 15219-1425 Attention.: Walter D. Enick, Esquire FIRST MODIFICATION TO OPEN-END MORTGAGE AND SECURITY AGRCE1' 1ENT MADE BY Gray Drive, LP, a Pennsylvania limited partnership (the "Mortgagor"), TO National City Bank, successor by merger to National City Bank of Pennsylvania, having a mailing address at National City Center, 20 Stanwix Street, Pittsburgh, Pennsylvania 15222- 4802 (hereinafter "Mortgagee"), dated the 24th day of January, 2008, to be effective as of October 31, 2007 (the "First Modification"). W11 NES5L,TH. WHEREAS, the Mortgagor is indebted to the Mortgagee, in lawful money of the United States of America, in accordance with that certain Construction Loan Agreement, dated as of October 28, 2004, by and among the Mortgagor and the Mortgagee (the "Loan Agreement"), as evidenced by a certain Mortgage Note dated October 28, 2004, in the aggregate principal amount not to exceed Nineteen Million Two Hundred Thousand and 00/100 Dollars ($19,200,000.00) (the " Note"); and WHERFAS, as security for all amounts due and payable under the Note, the Mortgagor, among other things, executed and delivered to Mortgagee that certain Open-End Mortgage and Security Agreement, dated October 28, 2004, and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, on November 4, 2004, at Mortage Book Volume1886, Page 4090, (the "Mortgage"), encumbering certain premises identified therein and situate in Upper Allen Township, Cumberland County, Conunonwealth of Pennsylvania (the "Mortgaged Premises"); and WHEREAS, the Mortgagor and the Mortgagee have agreed to amend the Note pursuant to the First Amendment to Note , dated of even date herewith (the "First Amendment to Note") caa;zzr.occ and to amend the loan Agreement pursuant to the First Amendment to Construction Loan Agreement, dated of even date herewith (the "First Amendment to Construction Loan Agreement") (this First Modification, the First Amendment to Note, the First Amendment to Construction Loan Agreement and the other amendments executed in connection with the other Loan Documents (as defined in the Loan Agreement) are hereinafter collectively referred to as the "Amendments") pursuant to which, among other things, the Mortgagor and Mortgagee have agreed to amend certain terms and conditions of the Loan Documents as more fully set forth in the Amendments; and WHEREAS, the parties hereto desire to amend the Mortgage pursuant to the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the premises contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows: I . The foregoing recitals are hereby incorporated herein and made a part hereof: 2. Section 4.5 in the Mortgage is amended by amending and restating Section 4.5 in its entirety as follows: "4.5 Distributions. Mortgagor shall not make any distributions of any kind whatsoever to the partners of the Mortgagor." 3. The Obligations (as defined in the Mortgage) secured by the Mortgage includes the Loan (as defined in the Loan Agreement and in the Mortgage) as modified pursuant to the terms of the Amendments and evidenced by the Note as amended by the First Amendment to Note. 4. Except as modified hereby, the Mortgage and the first-priority lien created thereunder shall remain in full force and effect. 5. The Mortgagor represents and warrants to Mortgagee (a) that the Property and any and all other collateral encumbered by any of the Loan Documents are free and clear of all liens, charges and encumbrances (other than those in favor of Mortgagee and those to which Mortgagee has expressly consented to in writing) and (b) there are no setoffs, claims, or deductions of any nature against any amount due or to become due under the Note. The Mortgagor and the Mortgagee represent and warrant to each other that, as of the date hereof, and giving effect to this First Modification and the amendments to the other Loan Documents, there is no Event of Default in existence under any Loan Document and no event or condition in existence which, with the passage of time or the giving of notice, or both, would become or constitute an Event of Default under any Loan Document. 6. This First Modification is only a modification of the Mortgage and not a novation, release or accord and satisfaction of the Note and/or the Mortgage. 7. If any one or more of the provisions of this First Modification should for any reason be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired ooesz:».xc '2' thereby, and such invalid, illegal or unenforceable provision shall be deemed modified to the extent necessary to render it valid while most nearly preserving its original intent. 8. Any and all references to the Mortgage or any other Loan Document in the Mortgage or any other Loan Document shall be deemed to refer to such Loan Document as amended by this First Modification and this First Modification is deemed incorporated into each of the Loan Documents. Any initially capitalized term used in this First Modification without definition shall have the meanings assigned to those terms in the Loan Documents. 9. This First Modification may be signed in any number of counterpart originals and by the parties to this First Modification on separate counterparts, but all originals shall constitute one and the same instrument. 10. THE MORTGAGOR AND THE MORTGAGOE IRREVOCABLY WAIVE ANY AND ALL RIGHTS EACH MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THE FIRST MODIFICATION, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS FIRST MODIFICATION OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE MORTGAGOR ACKNOWLEDGES THAT THE FOREGOING WAIVER HAS BEEN NEGOTIATED AND IS KNOWING AND VOLUNTARY. 11. The Mortgagor acknowledges that it has read and understood all of the provisions of this First Modification and has been advised by counsel as necessary or appropriate. 13. If any term or provision set forth in this First Modification is made as a result of the Mortgagee having waived a failure by the Mortgagor to perform any term or provision of the Mortgage or the other Loan Documents, such waiver granted by the Mortgagee is limited solely to the particular event from which it arose, and no waiver by the Mortgagee shall (a) extend to any other event, default or Event of Default under this First Modification, the Mortgage or any other Loan Document or (b) impair any right or remedy of the Mortgagee consequent thereto. la. This First Modification is not intended to be a novation, release or accord and satisfaction of the Note andlor the Mortgage. 15. The Mortgagor shall execute, or cause to be executed, and delivered to the Mortgagee all other amendments, instruments, agreements, certificates and other documents deemed necessary or appropriate by the Mortgagee in connection herewith. 16. This First Modification shall be binding upon and inure to the benefit of the Mortgagor and the Mortgagee and their respective successors and assigns. This First Modification shall not be binding upon the Mortgagee until accepted by the Mortgagee, as evidenced by its execution belo,.v. [INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the undersigned has executed this First Modification to bt eft'ective on the day and year first above written. WITNESS: N .i WITNESS: Name: Gray Drive, LP, a Pennsylvania limited partnership By: Gray Griffin, LLC, a Pennsylvania limited liability company Its: General Partner By: Na pson TitNational City Bank By: Namc: Kris Volpatti Title: Vice President IN WITNESS WHEREOF, the undersigned has executed this First Modification to bt effective on the day and year first above written. WITNESS: Gray Drive, LP, a Pennsylvania limited partnership By: Gray Griffin, LLC, a Pennsylvania limited liability company Its: General Partner Name: By: Name: Hugh J. T. Simpson Title: Managing Member WITNESS: National City Bank Name: Kris Volpatti Title: Vice President ACKNOWLEDGEMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF o?; n } SS: On this, the ;2? day of January, 2008, before me, a Notary Public, personally appeared Hugh J. 'f. Simpson, who acknowledged himself to be the Managing Member of Gray Griffin, LLC, a Pennsylvania limited liability company, the General Partner of Gray Drive, LP, a Pennsylvania limited partnership, and that lie as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained, and in the capacity therein stated, by signing his name as such officer. IN WITNESS 1XIIER&OF, I hereunto set my hand and official seal. Notary Public My Commission Expires: COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL JANICE L. MEADATH, Notary Public City of Harrisburg, Dauphin County My CmwdssW Eoes April 30, 2011 ACKNOWLEDGEMENT COMMON WEALTH OF PENNSYLVANIA COUNTY OF ALLEGHENY SS: On this the ', L , A day of January, 2008, before me, a Notary Public, personally appeared Kris Volpatti, who acknowledged herself to be a Vice President of National City Bank, and that she as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained, and in the capacity therein stated, by signing her name as such officer. IN WITNESS WHEREOF, I hereunto set my hand and official seal. It% Notary Public My Commission Expires: COMMONWEALTH OF PENNSYLVANIA Notarial Seal Janet R. Sabet wo, Notary PtUc Clly Of Pftb-0, Al*-V Canty My Commission F*km Sept 21, 2011 Nembor. Pennsvtrania ArsadAetion of Notaries i , fii. ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200802802 Recorded On 1/29/2008 At 1I:31:52 AM * Instrument Type - MODIFICATION OF MORTGAGE Invoice Number -13324 User ID - MSW * Mortgagor - GRAY DRIVE LP * Mortgagee- NATIONAL CITY BANK * Customer - STEPHEN NUDEL * FEES STATE WRIT TAX $0.50 RECORDING FEES - $17.50 RECORDER OF DEEDS COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAID $23.00 *Total Pages - 8 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA f cuy+ e RECORDER O D EDS neo ` - Information denoted by so asterisk may change during the verification process and may not be renected on this page. ???00001T id iiwflu .. NOTICE OF WAIVER OF RIGHTS REGARDING WARRANTS OF ATTORNEY, EXECUTION RIGHTS, AND WAIV911 OF RIGHTS TO PRIOR NOTICE AND JTTDICIAL HEARING Borrower: Gray Drive, LP, a Pennsylvania limited partrtership Guarantors: Hugh J. T. and Diane H. Simpson Transaction: Fiat Amendment to Note dated January 24, 2008, to be effective as of October 31, 2007 (the "Effective Date"), made by the Borrower and payable to National City Bank, successor by merger to National City Bank of Pennsylvania (the "Bank"), First Modification to Open-End Mortgage and Security Agreement dated January 24, 2008, to be effective as of the Effective Date, made by the Borrower to the Bank and the Consent of Guarantors dated January 24, 2008, to be effective as of the Effective Date, made by the Guarantors to the Bank Effective as of, The Effective Date This NOTICE AND WAIVER ("Notice and Waiver") of rights is being given to you by the Bank, in connection with the above-described credit transaction. IT IS IMPORTANT THAT YOU CAREFULLY READ AND UNDERSTAND THIS DOCUMENT. WHEN YOU SIGN YOUR NAME IN THE SPACE PROVIDED BELOW YOU ARE ACKNOWLEDGING AND REPRESENTING TO THE BANK THAT YOU HAVE READ AND UNDERSTAND THE CONTENTS OF THIS DOCUMENT. You will be executing and delivering to the Bank an agreement and/or other loan documents (collectively, the "Loan Documents") which grant to the Bank, among other things, the power and authority to enter JUDGMENT BY CONFESSION against you, and to exercise rights of execution, Levy, garnishment, seizure of your property and the like. Other than notices required under the Loan Documents, these rights and powers may be exercised by the Bank without giving you any prior notice of its intention to do so. Jn addition, these powers and rights may be exercised without a prior hearing of any nature. By executing and delivering this Notice and Waiver, you knowingly, voluntarily, and intelligently waive your rights to prior notice (except for notice required under the specific tears of the Loan Documents) and a hearing or other judicial proceedings to determine your rights and liabilities in connection with the Loan Documents. By signing this Notice and Waiver, you acknowledge that you understand that, after the occurrence of an Event of Default (as defined in the Loan Documents), the Bank may obtain a judgment against any one or more of you, and execute upon and seize forthwith your property and assets without the opportunity to raise any defense, set- off, counterclaim, or other claim that you may have. You knowingly, voluntarily, and intelligently waive your rights to any prior notice (except for notice required under the specific terns of the Loan 00 1218J.DDc Documents) or judicial determination as a material part of the consideration for this transaction and in order to induce the Dank to enter into this transaction. You acknowledge and represent that you have consulted (or have had an opportunity to consult) with legal counsel of your choice, and with such other experts. and advisors as you deem necessary, in connection with the execution and delivery of the Loan Doc (including without limitation the provisions of the Loan Documents authorizing, afte uments r the occurrence of Event of Default, the confession of judgment and the execution upon and seizure of your property and assets without the opportunity for prior notice (except for notice required under the specific terms of the Loan Documents) or judicial determination of any nature). This Notice and Waiver may be executed in any number of counterparts and by the different parties hereto on separate counterparts each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. [INTENTIONALLY LEFT BLANK] aeaz!:oooc - z - IN WITNESS WHEREOF, and intending to be legally bound, the undersigned have executed this Notice and Waiver to be effective as of the Effective Date, WITNESS: WITNESS- am . WITNESS: e• Gray Drive, LP, a Pennsylvania limited partnership EY- Gray Griffin, LLC, a Pennsylvania limited liability company Its: General Partner By: N u 1. , Simpson Title: anagin Member #:hfT .Simpson, an individual me: Diane H, Simpson, an individual QQfW190.ooe ACKNOWLEDG?T COMMONWEALTI{ OF PENNSYLVANIA ) COUNTY OF SS: On this, the R-S day of January, 2008, before me, a Notary Public, personally appeared Hugh J. T. Simpson, who acknowledged himself to be the Managing Member of Gray Griffin, LLC, a Pennsylvania limited liability company, the General Partner of Gray Drive, LP, a Pennsylvania limited partnership, and that he as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained, and in the capacity therein stated, by signing his name as such officer. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Expires: COMMONWEALTH Of PENNSYLVANIA NOTARIAL SEAL JANCE L. MEADATH, Notary Public City of 1larrisbnrg, Dauphin County My Cotnnt scion b o" Apri130, 2011 009J2f90=0 ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF _ :tL>, ) SS: On this, the PS§tn day of January, 2008, before me, a Notary Public, the undersigned, personally appeared Hugh J. T. Simpson, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I bereunto set my hand and official sea]. Notary Public My Commission Expires: COMMONWEALTH OF PENNSYLVANIA JANNCE L. NOTARIAL SEAL EADATH Notary public City of Harrisburg, 6a;;t jn County My Canmisaba Expi?es April 30, 2011 CM2 f 90 D= ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF ) SS: On this, the ? hh day of January, 2008, before me, a Notary Public, the undersigned, personally appeared Diane H. Simpson, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained, IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires: Notary Public COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL JANICE L. MEADATH, Notary Public City of Harrisburg, Da*Mn County MY Ctmtnassion EOvs April 30, 2011 00e521eo.ooc SECOND AMENDMENT To MORTGAGE NOTE This Second Amendment to Mortgage NOW, dated August aLt, 2008, to be effective as of August M. 2008 (the "Effective Date'), by and between rimy Drive, LP, a Pennsylvania limited partnership (the "Borrower's, and National City Bank, successor by merger to National City Bank of Pennsylvania, a national banking association (the "Bank") (the "Amex trent"). WITNESSETH: WHEREAS, the Borrower and the: Bank entered into that Construction Loan Agzoei W4 dated Oetobcr 28, 2004. as amended by that certain First Amendment to Cona tction Loan Agreement dated the 24th day of January, 200g, to be effective as of October 31, 2007, by and between the Bank and the Borrower (as may be further amended, modified or supplemented tom time to time, the "Loma Agreemment"); and WRIU A.S, the Loan (as defined in the Loan Agreement) is evidenced by that certain Mortgage Note dated October 28, 2004, as amended by that certain First Amendment to Mortgage Note dated the 241i day of January, 2008, effective October 31, 2007, in the original principal amount of Ninetcen Million Two Hundred Thousand Dollars ($19,200,000.00) made by the Borrower and payable to the Bank (as may be amended, modified or supplemented from time to time, the "Note"); and WHEREAS, the Borrower desires to further amend certain provisions of the Note and the other Loan DOOM eats (as defined in the Note) to, among odder amendments, extend the Maturity Data, and to provide for certain changes in interest rates, , and the Bank desires to permit such amendments pursuant to the terms and subject to the conditions set forth herein, NOW, TEMWORB, in consideration of the prendsm contained hernia and other good and valuable consideration, the receipt and avfSciency of which we hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows: 1. All capitalized terms used herein that am defined in the Loan Agreement or the Note shall have the same moaaing herein as in the Loan Agreement or the Note unless the context clearly indicates otherwise. The foregoing recitals are incorporated herein by refereace. 2. The Borrower hereby. Wmowledges and agrees that as of August 22, 2008, the outstmxhng principal balance of the Note is fir ?OU? Seven Hundred Sixty Five and 81!100 ?? Million Six Hundred Pighteen unpaid inDr?est and otothear Dollars (518,618,765.81) L accrued and claims, nWesu,&Dd, chazSm The Borrower waivet and releases the Bank from any and all nsda, defenses or other causes of action the Borrower has with respect to the indebtedness evidenced by the Note and the enforceability theroof. ca,w„mc 3• The Note is hereby amended as follows: 3.01 Section following set<teu is Partially amended by the and cludmg''C ??ri 012 Vtember1,2 through Date m 008, Period, the Applicable Ttherest>tato any Exta=on Rata Plus Oaoimvof one"(p.SO?) equal to the Rime 3.02 Section 1.$. follows: 'fix rim„ amended and restated is its entirety as to extcud (? "E The Borrower shall have the option Period of xtens?°n option") ? from October NOW for as additional period of ?o?? Up days, 2006 to Navember 30, 2008 (the Extxt Period"), provided that each and ev ension ooaditioas and roqui?? lum a3' one of the follow been eatliaficd: (a) ?? Of Defxdt has occurred and is (b) Not less than fifteen (l5) days Prior to the O°nunmoclacnt Of the Exton period, the B4* ahalI have received (i) written notice ofBorrowees iarcvoeable eloed extend the Con,,ti to on/I-eBSe U Period of 00/1!)0 Do Sht Thousand and fee (" ExtQW011R(?S'?equest„)). ) note extension (C) No Material Adveree 'flood bt the Construction ??ge (as d, oooun''ed with reed ttoo the d er,, the Cnuaators (as d fined in the C tAgneernent), the Prnpertyy oactructio'n o the IAMn PrOjOc and (d) TIO Bank Thal] have t+oceiv searehwo of the 1Un6 a title sch and f'Hnv which Commercial Code revue no additional liens or encuzubmnccs against the pp.,t3, If the Borrower elocts to amise the and satisfies the conditions set forth herein, then COa 4W n -2- DD919611Zor after October 31, 2008, CI) the Applicable d tall Rate aI! be equal to the 1'iimo Rate, plus onahalf of one pbrceat (0.50'/) end (u? the Maturity Dat6 shall be November 30, 2008. 3'03 11e fifth Patagmph Oil Page 4 of the Note ao two sc ttemm y amended and restated la its ss ?vws: Y Payments of acQucd interest shall be due Payable starting on December 2, 2004 and on the day of cacti mouth (1'h mo2ithly PaY?t due thermfter, through; and mdmimg the balance outstanding hmv=dr i' 2008. no entire P?cipal iutenest hereunder, and any and and unpaid thereto, shall be due and macs reIatIn, Oct?obar 31, 2008 (the " ??ty bai &IL o without demand, on *mdod set forth in the next a Extension entaxo. If the Bom exemism opd the mz, Mica cacti of the ? D extends theNote =Won er od. the I aitd the automatl?y be ceded to November 30020088, Payment duo on November 1, 2008 shall be a Payment of accrued kWest at the Applicable November 30, 2008, the entireprin4a meat . On heramdcr, and accrued and outstanding unpaid interest as co" and =P=et MW'09 thereto, shall bed p je in "3.04 Section 4 on Page 6 is part6U and ? S the first sentence of S Y tended by ftaendicw bellows; "This Note is issued in Section 4 iu its entirety as Construct On Lass Agreem dated as ofC01maotion with the IM even w ed iab by and between qm Bank and ttho Boo ha a, as Loan by that certain Fast Amendmwt 10 C MMW m daQDd the 24a, day of Jamuary. 2008, to be effective re as Of the Borrower, October 31, 2007, by and bctweeu the Back and to Consrr?on ? 7d7o Agreement by that Second Am ont be effe?vc as of Au 00 W Au? -2lt? SOB, to sad the Borrower (as it may be ft1ha between tba Bank su Imnentad fim time to " ended, moft d or Agraemerrt" OPCwEnd time, the CO1a*tr4Woa L. Agree mt dated as of even date her m and 5ccn¢itY bctwom the Bank and the 13ornower wed into by and Moafic ago" to ppeee-Fend M?g° a 03 m d ad S?tybyA that V"t dated the 24°i day of 7 ,t October 31, 2007, by and ? 'oea the 2ihe 1 Banto be effecbiv,Q as of k and the Borrower, -3- as e am S? by that Second Modification to ppea-Bud Mo ecurity? Agrwment, dated Au . 2008, to be ofoctive a$ of August . , 2008 b and Bank and the Borrower (as it ma y between the modiSod or supple y be t er amended, "Mortgagee), the Assignment rom tma to time, the even Of herewith ?a+od futo b b8 tw Rents tarot as of tbo Bonuwea Y est the Bank and by the First Modification to 8amcat of Y. asps Mcudad and 2008, to be ?'ective ss of ?d ? ?? day of January, d to and the October 31, 2007, by and between the 8, Bank Modification to Assignment of I Anther a3R ct by that August 8. to -Zw 2008. Bask and the as of August 20 g August Y and ???, modified or sopplem? (" it may be furtha? As#pnaeut of Leaaea" ), the Socrui > Ag tip to time„ the even date herewith entered into by and between the was of the aoavwer, as amended by the First eut dated the 20 day of J g e? be ffbati as of October 31, 2007, by and ?00 ? B Wk and the 8omower ( as it may ? ?? and the firnn time to time, u? emended' modified or aupplemeatad . L7CG1 Financing s * `'ecmeat") and the two (2) Security the filed in O°?°ae?oa ovith ?e dated as of even date Guam4y and Sur+ayWm'p Agrmment favor of the Bank as oonfirmod b thLed on eWo Mors in dated the 20 day of January, 2002, to effective &s o October ,2? . AS further confirmed nfitmed by be he Coas of GuamUM, the oasait of August .?., 2008Au(a" it ?may ? to be cffoctzve as of I 1 I ?' from time Em'iminnentt ate, the N n' herewith by and amnag the R roA wt ? the as o en ? the uB=k rn (as it may be amxnded, modified or "110CUM the "Eaviroammul Yn fmm time to y the . tun +°?8i eatneat dated the 24* dAY f January meat"). the Pledge ?P Of fiber 31, 2007, by and among , B, to be effedivo aylvania limited iabik z ?. LLC, a Partner of the Douuwer), and ecOmPaaY (the colt g Hanle (as it may be ??o? for the benoM of the from time a time, the be em&4 modified or supplane,,t,ed UCC_1 Financing Statement anent") and Ilia one (1) Pledge AB?ent, and any other °secM* oaaoc a wig tb? mortgaM a?8umwts and Otber dohand ???. bnnmmas -4- oo9i96u.uoc fi"o from time to time in eonnec with this terwa of which are 'mod hairs Note, the (oolltctively, the by reference p2°PMI7' described in the Locatr^)' and is secured by the collateral as previous) and by such other graattod to the Bank tomay have b0cm Hoge or may bt the firtore be 4. The Borrower betdoY W'lm6cs, ag c melft and covaraats nradeP reconfirms Id t "Mffirms and art entations Loan Agt+eeaneat and the other Loan Documents, to the terms and oonditions of the Note, the 5. 11?-- Borrower went ar agreemem Which at 811Y wjmow'Wgcs s and RVOC9 ?2 each and "cry documen but not iimited to, (1) the Guaranty A secured Payment of the pbb ? ons (iv) the Contract Assigame?t(s), (v) (h) the 141ortgggei Crii) the' Assi? of t; and (vii) all UCC. i finan Iadttmrity ?y Me So, purity Agtecmeati & the ? ??the Cts exec s HW with 7 tY Agcnanene err due of the Obu e gations.e7?et1!(s), herebyeantiauea soctolnethpmm MortPtpa 6• Tho Borrows hereby repeoMb and warrants to The Bank that r Burro of the Borrower o a4d Y to extcufe and deliver this the Awcnd? ofticers executing this eadman an deliver dw d delivery same and bind the Borrower ? have, bow duly authorized Cte and Y thw Borrow tr with t eon provrsr h fend of B ro and dw pO'omrance and ob g e tr executer ofihe fie, the Loan AgremUW4 the other Lo by o $mntsa of the documents executed or to he do not ?O ° as Documents conflict eata with all breach documents of the Borrower or 'MY 14w with the d??? Y provision of or ?tituto a default under any Other a Borrower ca tr.eult is at the umLoan em Abindi upon or enforceable against the Borrowe ?' went or by the Bgmeme the odw Loan Domm? and the do Cv) Ibis Am?e the Note, wcr o is evm?ection herewith or therewith crostit a valid and in or to be the ?r? otr adowto ding Ory ??k enforceable in accordance with their rrgpoc W b as of 7• The Borrower effect to this A.mea?dar J and the and the $ wmlrant that now giving ter, no Event of Other '??dan? ?t?t and CrOm Default exists uadrr the Nto o Loan o Documents d" of even date the Pafamance: owiU eery oocar as a iauh of the eaecu ? ? .'°?2 or the other Loan and the other amp to o f any heroo£ After gib a of (his Amen&n to tot or this e °odtneat tower primly has no clainw Am warts dated of even dat BOr, herewith, If any kind at Law or is oyyQ counterclaims, offs, defer or any o6w muse of Ra he don LOU Agreement or the Loan b umarts, Bank a mg out of or in any y relating to the Not e. -S- 00919611.vpC 8. Each reference to the Nola that is made in the No o h 'he a Lou voctnneats sba11 heresgp? be mod as a nfrress?cG to the Note as amended 9. F10e14 as amended horeb e and Loan Almcnt the other Loan Y, all of the terms and oonditions of the Note, the Amendment amends the Note and in not s o as or an accoMai. rd in M fort:. aa,d effsct, This satisfactioq $erooL the difibreat 10. This Amendment may be exec, is an Parties hetdo on separate any Mmbec of counteapU and b doomed an original, but alt such oounterpvconsti h O but of a h ofh ?e be 11, THE BORROWER HEREBY ACKNOyyEEDGES AND insbumnaL THAT 7M NOTB AND TIM MORTGAGE CONTAIN PROVISIONS UNDER AGIt111 BANK MAY ENTER YL OGMDp BY CONIPSSION AGAINST 71;m BpRROWML THE 12. If any term or provision set fortis in this the I3811lc 14yiAg waived a Mur a by the Borrower to paIo? t is made as a result of or the other Loan Dociuneab, such waiver any team or provision of the Note 8r which no event him it erns., and waiver b aabed by the Bank is limited solely to the particular or Event of Default under flue Amendment, the by the Back shall ?a) Mend to any other event, default any right or remedy of the Banff conempent t ereto Not. or any other Lou Document or (b) iwpair M This AmmAne at is not intended satisfaction of the Note amycIr the Mortgage, to be a no"tfott, release or accord and 14. The Borrower shall ex Bank all other amendro? inst ume?, a carte, or cause to be exocutM, and delivcn d to the necessary or aPPropriate by the Hank in connection ° tjh. ficatus cad other dots damned 15. Nir, any vo "y •, . •,, Borrower does not have ., to r) file manner ? m lief, Protection, wider y Chapter of Bay *xVtcy tea. Title the I present debtors under any other state 1 won, liquidation or dissohsbi • or to is any °ni" or similar relief bor days, or CH) dhrctly or indirectly cause , b?O?Y 1aw86 within the next ailsety X40 directly or indirectly cause Bozro can" to Ray luntary Petition to be filed ags? Borrower or Other frdaal or other insolvency law p r°? of a¢y pry nw vaat to any time, or at any time hereafter, d1Dg roue of debtors ,? three at th. prtseat 16. No grassdiis,?,e r„t A Consuminatod mendment nor the performance ofactions Neither the hereunder Mautioa and d?vgy of this or de by Borrower with or as a of nay or described h? is being y e°bty to which $or, s a resWt or an actual intent by Borrower to binder, deli usdebb4 including but not limited to Barr, k any of t? are now or will heieatter become -6- oo9i96t t.noc 17, Waiver of , ;'o AmcndmeW waives any rights to eraser{ defense, too Bornawer by entering into this Bank based upon statutes of limibWon* to Period of ' y lion of the Bank or any other claim of the thoory that any lien or any other such claim is limo bane?ut4 i? °r 80Y other defeaae based on 18, " 71lix Amendment " be binding nOITM be ? and the Bank and duir ?. en n and inure to the bau?&t of the WgU. U6 ug upon the Bank IV4 Ucepted by the Bank, as evidenced by i l?t " not [IIVTF.1MONALLY LEFT BLANXI .7- 009I96I1mo hereto have IN wTI??IF.SS W OFD and iaten&g to be ICPJIY caused this AmeWment to be effective ou the date first a?wbe wirittm here by, the parties w'nms: GmyDdM L', a ?'z* meted paltzroWp Br Gray CMMU. LLC Its: cmgly a liability Racal Paler Siam TWO: Member 714- Q r National atY Bank By., . Name: Yda V --? Title; Via Prodde ACKNO uYUSO,.= COMMONWEALTH OF PENNSYLVANIA I COLwry OF ) SS: On ibis, the R{ t d'LY of AUSM% 2008, boforr, me, a Hugh ]. T. Simtps? w b ecImowledpd tery Public, petaooaliY LLC, a Perws I?seif to be the No B;Pewod Ylvania limited Iiabili MSS Mcanber of Qra PennsylvW8 limited partn IYthat?bePMssuc hme Gmad Partner of Gra y Gt n, ?A aad as atlicery ?1Vp? LP, a e foaegoin8 anent for the ' being authorized to do ao, =aouted th8?g his nAwc as such PurPom 'A COn?°ed, and in the capacity dtatin stated, by IN WrTNESS WIIB II. I he ramto set MY hand and official seal. My Commission Expires: Notary P,abiic LT 1OF MAMA NOTM" Sm f 1q, 26f0 This document is intended to be recorded in Cumberland County, Pennsylvania RECORDING REQUESTED BY AND WHEN RECORDED MAIL T0; THORP REED & ARMSTRONG One Oxford Centre, 14'h Floor Pittsburgh, Pennsylvania 15219-1425 Attention: Walter D. Enick, Esquire SECOND MODIFICATION TO OPEN-END MORTGAGE AND SECURITY AGREEMENT MADE BY Gray Drive, LP, a Pennsylvania limited partnership (the "Mortgagor"), TO National City Bank, successor by merger to National City Bank of Pennsylvania, having a mailing address at National City Center, 20 Stanwix Street, Pittsburgh, Pennsylvania 15222- 4802 (hereinafter "Mortgagee"), dated the-ay of August, 2008, to be effective as of August _L 2008 (the "Second Modification"). )y ITNES SETH; WHEREAS, the Mortgagor is indebted to the Mortgagee, in lawful money of the United States of America, in accordance with that certain Construction Loan Agreement, dated as of October 28, 2004, by and between the Mortgagor and the Mortgagee, as amended by that certain First Amendment to Construction Loan Agreement, dated January 24, 2008, effective as of October 31, 2007, by and between the Mortgagor and the Mortgagee (as further amended, modified or supplemented from time to time, the "Loan Agreement"), as evidenced by a certain Mortgage Note dated October 28, 2004, as amended by that certain First Amendment to Mortgage Note, dated January 24, 2008, effective as of October 31, 2007, in the aggregate principal amount not to exceed Nineteen Million Two Hundred Thousand and 001100 Dollars ($19,200,000.00) (the "Note"); and WHEREAS, as security for all amounts due and payable under the Note, the Mortgagor, among other things, executed and delivered to Mortgagee that certain Open-End Mortgage and Security Agreement, dated October 28, 2004, and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, on November 4, 2004, at Mortgage Book Volume 1886, Page 4090, as amended by that certain First Modification to Open-End Mortgage and Security Agreement, dated January 24, 2008, effective as of October 31, 2007, and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, on January 29, 2008, at Instrument No. 200802802 (as further amended, modified or supplemented from time to time, OW1951s.mc the "Mortgage"), encumbering certain premises identified therein and situate in Upper Allen Township, Cumberland County, Commonwealth of Pennsylvania (the "Mortgaged Premises"); and WHEREAS, the Mortgagor and the Mortgagee have agreed to further amend the Note pursuant to the Second Amendment to Note, dated of even date herewith (the "Second Amendment to Note"), and to further amend the Loan Agreement pursuant to the Second Amendment to Construction Loan Agreement, dated of even date herewith (the "Second Amendment to Construction Loan Agreement") (this Second Modification, the Second Amendment to Note, the Second Amendment to Construction Loan Aeent and the other amendments executed in connection with the other Loan Documents (defined in the Loan Agreement) are hereinafter collectively referred to as the "Amendments") pursuant to which, among other things, the Mortgagor and Mortgagee have agreed to extend the Maturity Date, and to amend certain terms and conditions of the Loan Documents as more fully set forth in the Amendments; and WHEREAS, the parties hereto desire to amend the Mortgage pursuant to the terms and coaditions set forth herein, NOW, THEREFORE, in consideration of the premises contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows; 1. The foregoing recitals are hereby incorporated herein and made a part hereof. Z. The Obligations (as defined in the Mortgage) secured by the Mortgage includes the Loan (as defined in the Loan Agreement and in the Mortgage) as modified pursuant to the terms of the Amendments and evidenced by the Note as amended by the Second Amendment to Note. 3. Except as modified hereby, the Mortgage and the first-priority lien created thereunder shall remain in full force and effect. 4. The Mortgagor represents and warrants to Mortgagee (a) that the Property and any and all other collateral encumbered by any of the Loan Documents are free and clear of all liens, charges and encumbrances (other than those in favor of Mortgagee and those to which Mortgagee has expressly consented to in writing) and (b) there are no setoffs, claims, or deductions of any nature against any amount due or to become due under the Note. The Mortgagor and the Mortgagee represent and warrant to each other that, as of the date hereof, and giving effect to this Second Modification and the amendments to the other Loan Documents, there is no Event of Default in existence under any Loan Document and no event or condition in existence which, with the passage of time or the giving of notice, or both, would become or constitute an Event of Default under any Loan Document. 5. This Second Modification is only a modification of the Mortgage and not a novation, release or accord and satisfaction of the Note and/or the Mortgage. OWIV515.Dw -2- 6. If any one or more of the provisions of this Second Modification should for any reason be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and such invalid, illegal or unenforceable provision shall be deemed modified to the extent necessary to render it valid while most nearly preserving its original intent. 7. Any and all references to the Mortgage or any other Loan Document in the Mortgage or any other Loan Document shall be deemed to refer to such Loan' Document as amended by this Second Modification and this Second Modification is deemed incorporated into each of the Loan Documents. Any initially capitalized term used in this Second Modification without definition shall have the meanings assigned to those terms in the Loan Documents. 8. This Second Modification may be signed in any number of counterpart originals and by the parties to this Second Modification on separate counterparts, but all originals shall constitute one and the same instrument. 9. THE MORTGAGOR AND THE MORTGAGEE IRREVOCABLY WAIVE ANY AND ALL RIGHTS EACH MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THE SECOND MODIFICATION, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS SECOND MODIFICATION OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENT'S, THE MORTGAGOR ACKNOWLEDGES THAT THE FOREGOING WAIVER HAS BEEN NEGO'T'IATED AND IS KNOWING AND VOLUNTARY. 10. The Mortgagor acknowledges that it has read and understood all of the provisions of this Second Modification and has been advised by counsel as necessary or appropriate. 13. If any term or provision set forth in this Second Modification is made as a result of the Mortgagee having waived a failure by the Mortgagor to perform any term or provision of the Mortgage or the other Loan Documents, such waiver granted by the Mortgagee is limited solely to the particular event from which it arose, and no waiver by the Mortgagee shall (a) extend to any other event, default or Event of Default under this Second Modification, the Mortgage or any other Loan Document or (b) impair any right or remedy of the Mortgagee consequent thereto. 14. This Second Modification is not intended to be a novation, release or accord and satisfaction of the Note and/or the Mortgage. 15. The Mortgagor shall execute, or cause to be executed, and delivered to the Mortgagee all other amendments, instruments, agreements, certificates and other documents deemed necessary or appropriate by the Mortgagee in connection herewith. 16. This Second Modification shall be, binding upon and inure to the benefit of the Mortgagor and the Mortgagee and their respective successors and assigns. This Second Modification shall not be binding upon the Mortgagee until accepted by the Mortgagee, as evidenced by its execution below. (INTENTIONALLY LEFT BLANK) W9195fe.Doc -3- IN WITNESS WHEREOF, the undersigned has executed this Second Modification to be effective on the day and year fast above written. WITNESS: Name: WITNESS: ' e: Gray Drive, LP, a Pennsylvania limited partnership BY: Gray Grifl`m, LLC, a Pennsylvania limited liability company its: Geneml.Partner By: Name. U impson Title: g ember National City Bank Name: Kris Volpatti Title: Vice President ACKNOWLEDGEMENT COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF y,?L??p??? SS; On this, the LL "day of August, 2008, before me, a Notary Public, personally appeared Hugh J. T, Simpson, who acknowledged himself to be the Managing Member of Gray Griffin, LLC, a Pennsylvania limited liability company, the General Partner of Gray Drive, LP, a Pennsylvania limited partnership, and that he as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained, and in the capacity therein stated, by signing his name as such officer. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Expires: ^+ : t.••: v:•,iiEda.i ix of PENNSYLVANIA NOTARIAL SEAL SHANNON P ACHENBACH. Notary Public City of Harrisburg, Dauphin County Commissim Expires June 19, 2010 lkw ACKNOWLEDGEMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF ALLEGHENY SS: On this the -22day of August, 2008, before me, a Notary Public, personally appeared Kris Volpatti, who acknowledged herself to be a Vice President of National City Bank, and that she as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained, and in the capacity therein stated, by signing her name as such officer. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Expires: COMMONWEALTH OF PENNSYLVANIA Notarial Seal Shane D. WOW, Notary Public City of Plftaburgh, Allegheny County M Commission Expires Oct. 31. 2010 Member, Pannaylvan s Association of Notaries I ?? NOTICE OF WAIVER OF RIGH'T'S REGARDING WARRANTS OF ATTORNEY, EXECUTION RIGHTS, AND WAIVER OF RIGHTS TO PRIOR NOTICE AND JUDICIAL HEARING Borrower: Gray Drive, LP, a Pennsylvania limited partnership Guarantors. Hugh J, T. and Diane H. Simpson Transaction: Second Amendment to Note dated August 1U, 2008, to be effective as of August _22, 2008 (the "Effective Date"), made by the Borrower and payable to National City Bank, successor by merger to National City Bank of Pennsylvania (the "Bank,% Second Modification to Open-End Mortgage and Security Agreement August tom, 2008, to be effective as of the Effective Date, made by the Borrower to the Bank and the Consent of Guarantors dated August 7#, 2008, to be effective as of the Effective Date, made by the Guarantors to the Bank Effective as of. The Effective Date This NOTICE AND WAIVER ('Notice and Waiver") of rights is being given to you by the Bank, in connection with the above-described credit transaction. IT IS IMPORTANT THAT YOU CAREFULLY READ AND UNDERSTAND THIS DOCUMENT. WHEN YOU SIGN YOUR NAME IN THE SPACE PROVIDED BELOW YOU ARE ACKNOWLEDGING AND REPRESENTING TO THE BANK THAT YOU HAVE READ AND UNDERSTAND THE CONTENTS OF THIS DOCUMENT. You will be executing and delivering to the Bank an agreement and/or other loan documents (collectively, the "Loan Documents'D which grant to the Bank, among other things, the power and authority to enter JUDGMENT BY CONFESSION against you, and to exercise rights of execution, levy, garnishment, seizure of your property and the like. Other than notices required under the Loan Documents, these rights and powers may be exercised by the Bank without giving you any prior notice of its intention to do so. In addition, these powers and rights may be exercised without a prior hearing of any nature. By executing and delivering this Notice and Waiver, you knowin intelligently waive your rights to gly, voluntarily, and prior notice (except for notice required under the specific terms of the Loan Documents) and a hearing or other judicial proceedings to determine your rights and liabilities in connection with the Loan Documents. By signing this Notice and Waiver, you acknowledge that you understand that, after the occurrence of an Event of Default (as defined in the Loan Documents), the Bank may obtain a judgment against any one or more of you, and execute upon and seize forthwith your property and assets without the opportunity to raise any defense, set- off, counterclaim, or other claim that you may have. You knowingly, voluntarily, and intelligently waive your rights to any prior notice (except for notice required under the specific terms of the Loan M92M.WC Documents) or judicial determination as a material part of the consideration for this transaction and in order to induce the Bank to enter into this transaction. You acknowledge and represent that you have consulted (or have had an opportunity to consult) with legal counsel of your choice, and with such other experts and advisors as you deem necessary, in connection with the execution and delivery of the Loan Documents (including without limitation the provisions of the Loan Documents authorizing, after the occurrence of an Event of Default, the confession of judgment and the execution upon and seizure of your property and assets without the opportunity for prior notice (except for notice required under the specific terms of the Loan Documents) or judicial deternihmdon of any nature), This Notice and Waiver may be executed in any number of countcgwts and by the different parties hereto on separate counterparts each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. [INTENTIONALLY LEFT BLANK] oonwsizoc .2- IN WITNESS WHEREOF, and intending to be legaUy bound, the undersigned have executed this Notice and Waiver to be effective as of the Effective Date, WITNESS: i Gray Drive, LP, a Pennsylvania limited partnership BY: Gray Griffin, LLC, a Pennsylvania limited liability company Its: General Partner B. N J im?pson Title: Luca g Member X *t T ,Simpson, an individual e: Diane H. Simpson, an individual ooaxooe,.ooc ACKNOWLEDGEME COMMONWEALTH OF PENNSYLVANIA) COUNTY OF _ l? l X11 v? ) SS: On this, the ? day of August, 2008, before me, a Notary Public Hugh J. T. Simpson, who acknowledged himself to be the Manaai personally appeared LLC, a Pennsylvania limited liability co gm8 Member of Gray Griffin, Pennsylvania limited partnership, and that he as u,chhofficeerrebe being author to do ,executed the foregoing instrument for the purposes therein contained, and in the capacity therein stated, by signing his name as such officer, IN WITNESS WHEREOF, t hereunto set my hand and official sea, Notary Public My Commission Expires: COMMONWEALTH OF PENNSYLVANA 1 NOTARIAL. SEAL SHANNON P ACHENBACH. Notary Public City of Namsb Dauphin County upon E)res una 19, 10 AcxNO KI COMMONWEALTH OF PENNSYLVANIA) COUNTY OF SS: On this, the 2 (kt4.-day of August, 2008, before me, a Notary Public, the undersigned, personally appeared Hugh J. th Simpson, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained, IN WffMS WHEREOF, I hereunto set my hand and official seal. cin* LS f? ctrl t?. ,.yx C ? Notary Public My Commission Expires: c oMt? 7" OF pEM"YLVAMA NOTARK SEAL SHANNON P ACHENBACH. Notary Pub Cc Cky of Harrisburg, Dauphin County Commission Expires June 19, 2010 ooszooe,?oc ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF i ?n ) SS; On this, the aL?f- day of August, 2008, before me, a Notary Public, the undersigned, Personally appeared Diane H. Simpson, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained, IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Expires: COMM"WZA TH of PENNB n yANIA NOTARIAL SEAL SFf,ANN01t P ACHENBACH. Notary Public Uy of Hs*b q, Deup OCwy Corr mh*n Expires June 19, 2010 D0gmtom LAW OFFICES STEPHEN C. NUDEL, PC 219 Pinc Street Harrisburg, Pennsylvania 17101 (717) 236-5000 STEPHEN C. NUDEL FAX (717) 236-5080 BRET KEISLING VIA OVERNIGHT COURIER March 27, 2009 Mr. David W. Olenik National City Bank 629 Euclid Avenue Suite 635 Cleveland, OH 44114 Re: Gray Drive, LP Dear David: Enclosed please find the Extension of Second Amendment to mortgage Note, With Consent of Guarantors. In addition, enclosed is the $15,000 principal payment due by March 31, 2009, Please return a copy after it has been countersigned, Thank you for your consideration. Very truly yours, St?epheti -C GNudel SCN/jlm Enc. CC: Norman E. Gilkey, Esquire (w/enc. via email) Mr. & Mrs. Hugh J.T. Simpson (w/enc.) EXTENSION OF SECOND AMENDMENT TO MORTGAGE NOTE WITH CONSENT OF GUARANTORS This Extension of Second Amendment to Mortgage Note, With Consent of Guarantors ("Extension Agreement") is entered into the &'Aday of March, 2009, by and between Gray Drive, LP, a Pennsylvania limited partnership (the "Borrower"), National City Bank, successor by merger to National City Bank of Pennsylvania, a national banking association (the "Bank"), and Hugh J. T. Simpson an Diane H. Simpson, individuals, as guarantors of the Borrower's obligations to the Bank (the "Guarantors"), as follows: PREAMBLES WHEREAS, on August 26, 2008, the Borrower and the Bank entered into a Second Amendment to Mortgage Note (the "Second Amendment'), which is incorporated by reference hereto as if fully set forth herein, including as to its capitalized terns and definitions; WHEREAS, contemporaneous with the Second Amendment, the Guarantors provided to the Bank their Consent of Guarantors, which is incorporated by reference hereto as if fully set forth herein, including as to its capitalized terms and definitions; WHEREAS, one or more of the Borrower, the Bank and the Guarantors has also entered into various other documents associated with the Borrower's obligations to the Bank (the "Other Documents"), each of which is incorporated by reference hereto as if fully set forth herein, including as to their capitalized terns and definitions; and, WHEREAS, as a result of ongoing discussions, the Bank and the Borrower (with the Guarantors' acknowledgment) have determined that it is in their respective best interests to extend the Second Amendment, retroactive to December 1, 2008, and through July 31, 2009, under the following terms: 1. The foregoing Preambles are incorporated by reference hereto as if fully set forth herein. 2. The Borrower acknowledges that as of March 24, 2009, the outstanding principal balance of the Note is Nineteen Million, Thirty Six Thousand, Three Hundred Forty-Five Dollars ($19,036,345.00), plus accrued interest and other charges. The Borrower (and the Guarantors) again waive and release the Bank from any and all claims, counterclaims, offsets, defenses or other causes of action the Borrower has or may have with respect to the indebtedness evidenced by the Note and the enforceability thereof. 3. Provided that (a) no Event of Default has occurred and is continuing; and, (b) no Material Adverse Change has occurred with respect to the Borrower, the Guarantors, the Property or the Project (all as defined in the Construction Loan Agreement), then the Bank and the Borrower agree that, retroactive to December 1, 2008, the Borrower shall have the option to extend the Construction/Lease Up Period of the Note through July 31, 2009 (the "Extension Period"), provided that not later than March 31, 2009, and not later than the last business day of each of April, May and June, 2009, the Borrower shall pay the sum of Fifteen Thousand Dollars ($15,000.00) to. the Bank (the "Extension Payment"), each of which payments shall constitute the Borrower's exercise of the aforementioned option to extend for the following month, and each of which Extension Payments will be fully earned by the Bank upon delivery to the Bank. During the Extension Period, Borrower shall continue to pay interest when due, in addition to the Extension Payments. The Extension Payments shall be applied as a reduction of principal. 4. In, all other respects (and to the extent not inconsistent with this Extension Agreement), the Second Amendment, the Consent of Guarantors and the Other Documents are ratified by each of the parties hereto and shall remain in full and effect. 2 5. This Extension Agreement may be executed in counterparts and via pdf email, hard copy or facsimile, with the combined counterparts having the full force and effect of an original document. IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have caused this Extension Agreement to be executed on the month, day and year firsf written above. WITNESS: r ame: r P WITNESS: Name: Gray Drive, LP a Pennsylvania limited partnership By: Gray Griffin, LLC, a Pennsylvania limited liability Company Its: General Partner By: Nam : .T. Simpson Title: Man g Member National City Bank By Name: -David W. Olenik Title: Senior Vice President The Guarantors hereby consent to this Extension Agreement the4ay of March, 2009. MIHS on , n My Co mmission Expires: COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Evaission . MEADATH, Notary Pvbk arrisburg, Dauphin OMI Expires April 30, 2M B(]Z- BABST I CALLAND I CLEMENTS I ZOMNIR A PROFESSIONAL CORPORATION NORMAN E. 'Gf LKEY Allornoy al Law 412.394.5626 g1thyeberl.r6111 August 24, 2009 VIA FACSIMILE (717) 795-5490, FEDERAL EXPRESS & U.S. MAIL Gray Drive, LP 76 Emlyn Drive Mechanicsburg, PA. 17055 Attn: Hugh J.T. Simpson In re: Declaration of Event of Default under Loan Documents as described herein and Demand for immediate payment of the Obligations due to National City Bank Ladies and Gentlemen: This office is counsel to National City Bank ("National City"). As National City's counsel, we are sending this letter to Gray Drive, LP (the "Borrower's via the three methods described above. A copy of this letter is also being directed by fax and pdf email to Stephen C. Nudel, Esquire, and by regular mail to Hugh J.T. Simpson and Diane H, Simpson, in their capacities as Guarantors of the obligations due from the Borrower to National City. Reference is made to the loan obligations (the "Obligations'D due from the Borrower to National City, as identified in the Loan Documents, which are incorporated by reference hereto as if fully set forth herein, including but not necessarily limited to: 1. Construction Loan Agreement, dated October 28, 2004, as amended by a First Amendment to Construction Loan Agreement, dated January 24, 2008 (the "Loan Agreement"); 2. Mortgage Note, dated October 28, 2004, in the principal face amount of $19;200,000.00 from the Borrower to National City, as amended by a First Amendment to mortgage Note, dated January 24, 2008, and as amended by a Second Amendment to Mortgage Note dated August 26, 2008 (the "Mortgage Note") ; TWO GATEWAY CENTER I PITTSBURGH.PA 15222 IT 412.394.5400 IF 412.394.6576 IWWW.BCCZ.COM Hugh I.T. Simpson August 24, 2009 Page 2 3. Open-End Mortgage and Security Agreement dated October 24, 2004, as amended by a first Modification to Open-End Mortgage and Security Agreement, dated January 24, 2008, and as.ameinded by a Second Modification to Open-End Mortgage and Security Agreement, dated August 26, 2008 (the "Mortgage"); and, 4, Extension of Second Amendment to Mortgage Note, With Consent of Guarantors, dated March 27, 2009 (the "Extension Agreement"). The Extension Period, as defined in the Extension Agreement, expired by its terms on July 31, 2009; and, the principal balance remaining due on the Mortgage Note is $18,961,344.62, plus accrued interest and other charges. Due to the failure of the Borrower to repay the Obligations by July 31, 2009, the purpose of this letter is to advise the Borrower (and its counsel and the Guarantors) that an Event of Default has occurred pursuant to, among others, Section 6(i) of the Mortgage Note. Pursuant to Section 6 of the Mortgage Note, National City hereby declares the entire Obligations to be immediately due and payable. Daily interest at the Default rate (commencing after August 28, 2009), late charges where applicable, and similar charges will continue to accrue under the Mortgage Note until all balances due are paid in full to National City. National City reserves the right to collect the entire Obligations from the Borrower or from one or both of the Guarantors. Additional charges for late fees and such other'pern issible items shall be calculated and an accounting thereof provided to you upon payment in full of all other amounts due to National City.. As a result of the existing and continuing'Event of Default, National City hereby demands immediate payment in full of the Obligations by cashier's check, wire transfer or in other immediately available funds, to be received by National City not later than close of business on Friday, August 28, 2009. If payment is not made as demanded above, National City intends to commence legal actions and/or to exercise any and all remedies available.to it under the Loan Documents; as it deems appropriate. National City hereby confirms that it has made no agreement or commitment to amend, supplement or modify the Mortgage Note or any related Loan Documents in any respect, and National City hereby specifically confirms that it makes no such commitment and specifically advises that no action or inaction should be taken or. omitted by the Borrower or Guarantor based upon any erroneous perception that such a commitment exists or any expectation that any such commitment will be made in the future. Unless Hugh J.T. Simpson August 24, 2009 Page 3 specifically agreed to in writing by National City, any action or failure to act, any acceptance of any payment or any negotiation by National City with the Borrower and/or the Guarantors concerning the Mortgage Note or other Loan Documents is not and shall not be construed to be, a de-acceleration of any obligation under the Mortgage Note or a modification, alteration, release, limitation, waiver or cure of any default, breach, right, remedy, power or privilege of National City under the Mortgage Note or any related Loans Documents. The Mortgage Note and each and every representation, warranty, agreement, covenant, term and condition contained therein, in the related Loan Documents remain in full force and effect as therein set forth. None of National City's actions to date, nor . . anything set forth in this letter, shall be deemed or construed to be a waiver or release of any Default or Event of Default. now existing or hereafter arising, or a waiver or limitation of National City's rights, under the Mortgage Note or any other Loan Document. Accordingly; National City reserves all of its rights, without exception. Please contact David Olenik of National City or me immediately to arrange for payment. Thank you for your immediate attention to this matter. Time is of the essence. Very truly yours, Norman E. Gilkey 7 NEG/pas cc: David Olenik, Senior Vice President (via e-mail only) Stephen C. Nudel, Esquire (via fax 717-236-5080 and e-mail scnudel&udelge,com? Hugh J.T. Simpson (via regular mail) Diane H. Simpson (via regular mail) BLANK ROME«P COUNSELORS AT LAW Phone: (115) 569.5627 Fax: (115) 832-5627 Entail: crowley@blankrome.com October 29, 2009 BY E-MAIL Helene Jaron, Esquire Cozen & O'Connor 1900 Market Street Philadelphia, PA 19103-3508 hj aron6kozen.com Re: Default by Gray L.P. under Loan Documents with National City Bank Dear Ms. Jaron: We represent National City Bank in connection with the enforcement of its rights under the various Loan Documents as a result of the Event of Default described in the letter of August 24, 2009 (the "Default Letter") from Norman E. Gilkey, Esquire, of the firm of Babst, Calland, Clements & Zomnir, P.C., as counsel for National City Bank to Gray Drive L.P., attention Hugh J.T. Simpson ("Borrower"), with copies to the Guarantors. I have enclosed for you a copy of the letter sent earlier today by National City Bank to the Borrower and the Guarantors, advising them that, as a result of the Event of Default set forth in the Default Letter, and the continuing failure of the Borrower and the Guarantors to remedy that default, National City Bank has exercised its right under the Assignment of Leases and Rents, dated October 28, 2004, as amended by the First and Second Amendments thereto (collectively, "the Assignment") to collect all future rents for the property beginning with the November 2009 rent. Pursuant to Section 4.5 of this Agreement, the occurrence of the Event of Default terminated Gray Drive, L.P.'s license to collect and use rent proceeds. A copy of the form of notice sent to all tenants at the Property also is enclosed. Additionally as more fully set forth in the accompanying letter, National City Bank has exercised its rights pursuant to Sections 1.2 and 4.1 of the Assignment, as well as Section 6.3 of the Open End Mortgage and Security Agreement, dated October 28, 2004 as amended by the First and Second Amendments thereto, to take actual possession and control of the Property, effective Monday, November 2, 2009 at 8:00 a.m. Please call me so that we may discuss an One Logan Square 13.0 North 18th Street Philadelphia, PA 19103-6998 www.BlankRome.CDm California • Delaware • Florida • New Jersey • New York • Ohio • Pennsylvania • Washington, DC • Hong Kong BLANK R0MELLP COUNSELORS AT LAW October 29, 2009 Page 2 orderly transfer of control and operations of the Property. Until that date and time, Gray Drive L.P. remains obligated to operate, maintain and repair the Property and to otherwise comply with all of its leases with the tenants of the Property. Please call if you would like to discuss any aspect of this matter. Very t yo , Francis . Crowley FXC:jpl Enclosure cc: Regina Stango Kelbon, Esquire Barry Friedman, Esquire 'Ha ! ru? s*g National City Bank, Now a part of PNC 1900 East 9"1 Street Locator 137-YB 13-w?-1 Cleveland, Ohio 44114 (216) 22.2-4654 (216) 222-6070 (lax) October 29. 2009 David W. Qlenitc Senior Vice Promdei:t Via Fax (717-795-5490) Gray Drive, LP 76 Ernlyn Drive Mechanicsburg, PA 17055 Attn: Thigh J.T. Simpson Re: Event of Default by Gray Drive, L.P. Dear Mr. Simpson: 1 am writing to advise you that, pursuant to the assignment of Leases and Rents, dwell October 28, 2004, as amended by the first and Second Amendments (collectively, "tl.te Assignnienf 7) thereto. National City Flank, on October 26. ?009, exercised its rights to direct all tenants of Graham l lilt Apartments, as well as the tenants of 1607 English Drive, to pay all rctzts, beginning with the rent for November, 2009, to National City Bank. in care of Property Management, Inc. Ara example of the invoices sent to the tenants is enclosed. As National City Bank previously notified you by letter dated August. 24. 2009, Gray Drive L.P.'s Chilure to pay the Obligations (as defined in that letter ol'August 24, 2009) constitute an L'vent of Default ptu-suant to, among other things, Section 6(i) of the of the Mortgage Nate, dated October 28. 2004 as amended by a First Amendment to Mortgage Note, dated Januarv 24, 2008, and as amended by a Secure Amendment to Nfortgage Neste, dated August 26, 2008 (collectively "the Mortgage; Note"). Since Gray Drive, L..P, has continued to flail to satisfy the Obligations, that Event ofDefault is continuing. The Event of Default under the Mortgage Note also constitutes an Event of .Default under Section 11(i) of the Assigu.rnent. As a result of that (vent of Default. Gray- Drive L.P.'s license under Section 4.5 of the Assignment to collect and use rents is teroiinated upon occurrence of that Invent of Default and National City Bank has exercised its authority to direct tenants, pursuant to Section 4.4 of the Assignment to pay all rents directly to Property Management, Inc. as agent for National City Bank. In the event that any tenant submits any future rental payments to you, your employees or agents, you are directed to inimed.iateiy forward such payments to Property Management, Inc. at the address listed in the enclosed notice. 900202.1 10001-'5037337,6v. i (:!ray Drive, l_.P Attn: Ilugh J.T. Simpson October 29, 2009 Page 2 Pursuant to Section 4.1(ii) of the A.ssignnlent, you are directed to immediately turnover all documents, books, records, papers and accounts relating; to the Graham Hill Aparthnents property, as more fully described in the Loan Documents ("the Property"), Pursuant to Sections 1.2 and 4,1 of the Assignment, as well as Section 6.3 of the Open End Mortgage and Security Agreement, dated October 28, 2004; as amended by the First and Second Amendments thereto, National City Bank hereby dernands that you turn over actual possession, control and operation of the Property to Property Management, Inc. as agent tier National City Bank, on Monday, November 2. 2009 at 8:00 ami. Until such time, you are obligated to take all actions necessary and prudent to maintain, repair and operate the Property and all collateral there at. Please call me to discuss an orderly transition of the possession, control and ina.liagement of fie-Property and all collateral located there. Until that time, you reinain responsible for the operation., maintenance and repair of the Property, and to fulfill all of Cray Drive, [-P.'s obligations under its leases with the tenants of the Property. Any attempt by Gray Drive, L.P., its principals, partners, affiliates, or their agents to interfere with National City Bank's proper and orderly collection of the rents or talcs; possession of the Property kNrill constitute further Events of Default of the various loan Docurnenis and will constitute conversion, fraud and/or other tortuous actions for which National City Baal; will seek full and complete reimbursement from all entities and individuals engaged in such actions. Very truly yours, Senior Vice; President Stephen T. Nudel, Esquire (via fah 717-236-5080) Hugh J. T. Simpson (via regular mail and Fax., 717-795-5490) Diane 14. Simpson (via regular snail and fax, 717-795-5490) 900202.11000/503733-16Y. 1 ' gx. National City Bank, Now a part o1'PNC. 1900 East 9"' Street 1-orator f37-y131:7 2?-1 Cleveland, Ohio 441 14 (2 t 6) 222-4688 (216) 22:2-6070 tfo,') David W, Olenik Senior Vice President NOTICE REGARDING ADDRESS FOR ALL FUTURE RENT PAYMENTS To: <(Tenant» Building (<Building» Unit <4)nin) Graham Hill Apartments You are advised that your rent due under your lease for your apartment at Gral-min Hill Apartments has been assigned by your landlord Gray Drive L,P, (the owiier of G.raltatn I'till Apartments) to National City Bank in a docurnen.t dated October 28, 2004, and entitled Assignment of Leases and Rents (tire "Assignment''). In furtherance of National City Ranh's rights under the Assignment, you are directed to make all rent payments now or in fixture owing under your lease to National City Bank, c/o Property Management, Inc., P.O. Boa 622, Lemoyne, PA 17043-0622. Please do not make any further rent payments to Gray Drive, L.P. or Graham Hill Apartments, notwithstanding any direction to the contrary that you may hereafter receive from Gray Drive. T.-P. or anyone acting for th.ern. Checks should be made payable to Property iManacement, Inc:. Graham [ litl Apartnien.ts. A self addressed envelope is enclosed for your use. The Assignment specifically provides, at section 4.4, that: Gray Drive L.P. hereby consents to and irrevocably authorizes and directs the tenants under the Leases..., upon dernand and notice from National City Bank.... to pay to National City Bank the rents and other arnounts due or to beemre duo under the Leases, and the tenants shall have the right to rely upon such demand and notice.... A copy of the Assignment will be made available to you upon request. If you have any ft.trther questions concerning this notice. please call Property Management_ Inc. tit 717-730-70515. Please note that all communications concerning your lease or the operation, maintemince or repairs ot'Graha.m Hill Apartments should continue to be directed to'(1-ay Drive. L.P, or its on-site .managers. Thank you for your cooperation in this regard. NATIONAL f lTY BANK BY: David W. Olenik Senior Vice Presidel.lt. ALEC--ur ," +~iE OF ?N" pp,) -ipniqOTApy ?:. 2009 DEC -9 PM 12: 01 GUP ; , a wt r ".JUt?NTY i ENNSYLVANA. *0111-50 PO AITY Cpl loaagl Aj* aaq`7(0(0 ?o?`Ce IL??,(?.cQ BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK 1900 E. 9th Street (B7-YB13-22-1) Cleveland, OH 44114 Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. No: (-$5(n2C,vi(Terw GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 CONFESSION OF JUDGMENT Defendant. FOR POSSESSION OF REAL. PROPERTY PRAECIPE FOR APPEARANCE To the Prothonotary: Please enter our appearance for the Plaintiff, PNC Bank, National Association, as successor to National City Bank, in the above captioned civil action. BLANK,ROW LLP cis X. Crow ey, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square, Philadelphia, PA (215) 569-5500 Attorneys for Plaintiff 19103-6998 OF Tht pPD-OF p? NARY 2809 DEC -9 Ph 3: 54 CUMt3i: ? '?u ouN7Y p'?11VAh# BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK 1900 E. 9th Street (B7-YB13-22-1) Cleveland, OH 44114 COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. No: bg - $xla ?tVil??f'Mti GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 Defendant. CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY NOTICE UNDER RULE 2974.3 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS To: Gray Drive LP 76 Emlyn Drive Mechanicsburg, PA 17055 A judgment for possession of real property has been entered against you and in favor of the plaintiff without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The court has issued and the sheriff has served a writ of possession which directs the sheriff to remove you from possession of the real property. You may have legal rights to defeat the judgment or to prevent your being removed from the property or to regain possession of the property if you have been removed, if you did not voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing prior to the entry of judgment or if you have defenses or other valid objections to the judgment. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. If you have been removed from the property without notice or the opportunity for a hearing, you have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently and knowingly give up your rights to notice and hearing prior to the entry of the judgment. If you wish to exercise this right, you must immediately fill out and sign the request for hearing which accompanies the writ of possession and deliver it to the Sheriff of Cumberland County at 1 Courthouse Square, Carlisle, PA 17013. 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 34 S. Bedford Street Carlisle, PA 17013 717-249-3166 ? ptci-g-X Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 BLANK ROME LLP One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 2 Op Lp?r?At%E ?OTARy 2##9 DEC -g Py 3: YNA PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK 1900 E. 9th Street (B7-YB13-22-1) Cleveland, OH 44114 COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. No: Cq- 85(a 0-10L Terux. GRAY DRIVE, LP 76 Emlyn Drive ; Mechanicsburg, Pennsylvania 17055 CONFESSION OF JUDGMENT Defendant. FOR POSSESSION OF REAL PROPERTY REQUEST FOR PROMPT HEARING I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to notice and hearing prior to the entry of judgment. I petition the court to strike the judgment on this ground and request a prompt hearing on this issue. I verify that the statements made in this Request for Hearing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Notice of the hearing should be given to me at: Dated: Defendant BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK COURT OF COMMON PLEAS 1900 E. 9th Street (B7-YB13-22-1) CUMBERLAND COUNTY Cleveland, OH 44114 Plaintiff, V. No: CA- $;S a Civ'a ' Te rv% GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 CONFESSION OF JUDGMENT Defendant. FOR POSSESSION OF REAL PROPERTY AFFIDAVIT OF NO CONSUMER CREDIT TRANSACTION AND JUDGMENT NOT BEING ENTERED AGAINST A NATURAL PERSON ON CONNECTION WITH A RESIDENTIAL LEASE The undersigned David W. Olenik, being duly sworn according to law, deposes and says that he is a Senior Vice President of the Plaintiff, PNC Bank, National Association, as successor to National City Bank, that in such capacity he is authorized to and makes this Affidavit on the Plaintiff's behalf, and that he further says to the best of his knowledge, information and belief as follows: (1) The judgment being sought in this action is not being entered by confession against a natural person in connection with a consumer credit transaction, the transaction not being a consumer credit transaction (but being a business and commercial transaction), nor does the transaction involve the retail installment sale of goods or services subject to the provisions of the Goods and Services Installment Sales Act, 69 P. S. §1101 et seq. (2) The Mortgage, Mortgage Note, their respective amendments and modifications and other construction loan agreements were not executed by the Defendant in connection with a consumer credit transaction (but were executed in connection with a business and commercial transaction). The Mortgage, Mortgage Note, their respective amendments and modifications and other construction loan agreements were executed in connection with a business and commercial loan extended by the Plaintiff to the corporate Defendant. (3) The judgment being sought in this action is not being entered by confession against a natural person in connection with a residential lease. David W. Olenik Sworn to and subscribed before me this--N' day of` ? P how , 2009. L?? 10. Notary Public My Commission Expires: DOM K WWO, *Ufy P*o MW of oft, Labe Cos* My aoagdsos up. AW 13, 2011 2 RL.ED-?,,)F, ICE OF THE FRROTPoiq JTARY 2009 DEC -9 PM 3: SS CUMBE?7-L,?1-4) WAN PENNSYL VA&IIA r ? BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK 1900 E. 9th Street (B7-YB 13 -22-1) Cleveland, OH 44114 COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 Defendant. No: CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY AFFIDAVIT THAT DEFENDANTS' ANNUAL INCOME EXCEEDED $10,000 The undersigned David W. Olenik, being duly sworn according to law, deposes and says that he is a Senior Vice President of the Plaintiff, PNC Bank, National Association, as successor to National City Bank, that in such capacity he is authorized to and makes this Affidavit on the Plaintiff's behalf, and that he further says to the best of his knowledge, information and belief as follows: Based upon financial information provided to the Plaintiff by the Defendants, Gray Drive, LP the Defendant's annual income exceeded $10,000 at the time it executed the Mortgage and Mortgage Note dated October 28, 2004, and all modifications and amendments thereto. David W. Olenik Sworn to and subscribed before me this day of wef* i( , 2009. Notary Public My Commission Expires: 2 HLED--')ffiCE OF THE PrRDTHnNOTARY 2009 DEC -9 PFD 3: 55 CUMB&: -; 4D )OUNTY PENNSYLVANIA 1 BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK 1900 E. 9th Street (B7-YB13-22-1) Cleveland, OH 44114 COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. No: -851 wkiTerh- GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 CONFESSION OF JUDGMENT Defendant. FOR POSSESSION OF REAL PROPERTY AFFIDAVIT OF NON-MILITARY SERVICE The undersigned David W. Olenik, being duly sworn according to law, deposes and says that he is a Senior Vice President of the Plaintiff, PNC Bank, National Association, as successor to National City Bank, that in such capacity he is authorized to and makes this Affidavit on the Plaintiff's behalf, and that he further says to the best of his knowledge, information and belief as follows: (1) The Defendant, Gray Drive, LP is a Pennsylvania limited partnership with offices at 76 Emlyn Drive, Mechanicsburg, PA 17055. (2) The Defendant Gray Drive, LP is a Pennsylvania Limited Partnership and is not, therefore, in the active military service of the United States or its allies and the Defendant is not subject to the provisions of the Soldiers and Sailors Civil Relief Act of 1940 and its amendments, 50 U.S.C. App. §501 et seq. David W. Olenik Sworn to and subscribed before me this--t?day of 1?ejCAQEC, 2009. Notary Public My Commission Expires: 2 `•1P I rE { f 2009 DEC -9 PM 3: 55 cuma,,- - e BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK 1900 E. 9th Street (B7-YB13-22-1) Cleveland, OH 44114 Plaintiff, V. GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 Defendant. Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank COURT OF COMMON PLEAS CUMBERLAND COUNTY No: (? -85(a ??ViIT rr. CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY CERTIFICATION OF ADDRESSES The undersigned David W. Olenik, being duly sworn according to law, deposes and says that he is a Senior Vice President of the Plaintiff, PNC Bank, National Association, as successor to National City Bank, that in such capacity he is authorized to and makes this Certification on the Plaintiff's behalf, and that he further says to the best of his knowledge, information and belief as follows: (1) The Plaintiff's business address is 1900 E. 9th Street (B7-YB13-22-1), Cleveland, OH 44114. (2) The last known business address of the Defendant, Gray Drive, LP is 76 Emlyn Drive, Mechanicsburg, PA 17055. David W. Olenik Sworn to and subscribed before me this"7?h day of , 2009. Notary Public My Commission Expires: WpJALO Doan M. web, n Pdft I * of Okw, Lob ON* no , My eomn n W. Avg. 13, 901E R FIi.E??-r#?c Tp- 2009 DEC -9 PM 3: 55 eur ENNSYLVANA ; _ v ,,Ufa BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK 1900 E. 9th Street (B7-YB13-22-1) Cleveland, OH 44114 COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. No: pq- ivaTem GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 Defendant. CONFESSION OF JUDGMENT FOR POSSESSION OF REAI. PROPERTY NOTICE TO DEFENDANT PURSUANT TO 42 Pa.C.S. X2737.1 To: GRAY DRIVE, LP: Pursuant to 42 Pa.C.S. §2737.1, please take notice that the Plaintiff in this matter has entered a judgment by confession against for ejectment and for possession of the real property described in the Complaint as follows: COMBINATION OF LOT 1, LOT 2. AND PROPOSED RIGHT-OF-WAY ALL THAT CERTAIN parcel of ground known as the combination of Lot 1, Lot 2, and the proposed English Drive/Gray Drive right-of-way as shown on a plan entitled "Final Subdivision and Land Development Plan for Graham Hill Apartments" recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page 5 on March 20, 2002, located in the Township of Upper Allen, within the County of Cumberland, in the Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT: Beginning at a point on the eastern side of the Eighty foot (80') right-of-way of South Market Street (S.R. 0114) at the southwest corner of lands now or formerly of Fulton J. and Colleen Kennedy as recorded in Deed Book 181 page 1042; Thence along said lands of Kennedy the following three (3) courses: 1) South Eighty-nine Degrees Four Minutes Thirty-five Seconds East (S 89°04'35" E) a distance of Four Hundred Seventy-nine and Eighty-nine Hundredths feet (479.89') to a %" rebar found; 2) South Fourteen Degrees Twenty-five Minutes Nine Seconds East (S 14°25'09" E) a distance of Two Hundred Eighty-seven and Sixty-nine Hundredths feet (287.69') to an iron pipe with tack found; 3) North Fifty-eight Degrees Thirty-six Minutes Fifty-three Seconds East (N 58°36'53" E) a distance of One Hundred Sixty-seven and Forty-three Hundredths feet (167.43') to a'/2" rebar found at lands now or formerly of Waren and Mary Persak as recorded in Deed Book 107 page 146; Thence along said lands now or formerly of Waren and Mary Persak and continuing along lands now or formerly of Gary A. and Judy Dambach as recorded in Deed Book 130 page 892 South Twenty-five Degrees Thirty-nine Minutes Three Seconds East (S 25°39'03" E) a distance of Two Hundred Eighty and Nineteen Hundredths feet (280.19') to a'/2" rebar found at lands now or formerly of David and Gina Jablomski as recorded in Deed Book 101 page 930; Thence along said lands now or formerly of David and Gina Jablomski South Forty-four Degrees Twenty-five Minutes Thirty-five Seconds East (S 45°25'35" E) a distance of Seventy and Zero Hundredths feet (70.00') to a'/z" rebar found at lands now or formerly of John and. Eileen Difonzo as recorded in Deed Book 105 page 689; Thence along said lands now or formerly of John and Eileen Difonzo South One Degree Eighteen Minutes Fifteen Seconds West (S O1 ° 18' 15" W) a distance of Seventy-seven and Forty- four Hundredths feet (77.44') to a %Z" rebar found at lands now or formerly of Ralph and Gail Palmer as recorded in Deed Book 195 page 452; Thence along said lands now or formerly of Ralph and Gail Palmer South Seven Degrees Fifty-six Minutes Sixteen Seconds East (S 07°56' 16" E) a distance of Seventy-five and Thirty- eight Hundredths feet (75.38') to a %2" rebar found at lands now or formerly of Mathew J. and Carole R. Brown as recorded in Deed Book 180 page 1003; Thence along said lands now or formerly of Mathew J. and Carole R. Brown South One Degree Fifty Minutes Forty-two Seconds East (S 01°50'42" E) a distance of Eighty-three and Fitly-five Hundredths feet (83.55') to a'/z" rebar found at lands now or formerly of Phillip and Barbara Cain as recorded in Deed Book 126 page 1184; Thence along said lands now or formerly of Phillip and Barbara Cain the following two (2) courses: 1) South Twenty-three Degrees Fifty-one Minutes Sixteen Seconds West (S 23°51' 16" W) a distance of Fifty-three and Fifty-six Hundredths feet (53.56) to a 1/2" rebar found; 2 2) South Sixty-two Degrees Five Minutes Twenty-two Seconds West (S 62°05'22" W) a distance of Fifty-three and-Seventy-eight Hundredths feet (53.78') to a '/2" rebar found at lands now or formerly of Gene and Lorie Below as recorded in Deed Book 111 page 356; Thence along said lands now or formerly of Gene and Lorie Below South Twenty-nine Degrees Forty-four Minutes Forty-nine Seconds West (S 29°44'49" W) a distance of One Hundred One and Fifty Hundredths feet (101.50') to a %z" rebar found at lands now or formerly of Deborah Witcomb as recorded in Deed Book 204 page 778; Thence along said lands now or formerly of Deborah Witcomb South Sixteen Degrees Twenty Minutes Fifty-one Seconds West (S 16°20'51" W) a distance of Eighty-three and Ninety-seven Hundredths feet (83.97') to a point at lands now or formerly of Arlington Hills Homeowners as recorded in Deed Book 30-X page 514; Thence along said lands now or formerly of Arlington Hills Homeowners the following four (4) courses: 1) North Sixty-one Degrees Thirty-six Minutes Nine Seconds West (N 61°36'09" W) a distance of One Hundred Thirty-five and Sixty-three Hundredths feet (135.63') to a point; 2) By a curve to the right having a radius of Three Hundred Twenty-six and Fifty-six Hundredths feet (326.56') an arc length of One Hundred Fifty-five and Fifty-three Hundredths feet (155.53'), said curve having a chord bearing South Fifty-five Degrees Fifty-seven Minutes Five Seconds West (S 55°57'05" W) and a chord length of One Hundred Fifty-four and Six Hundredths feet (154.06') to a point; 3) By a curve to the left having a radius of Twenty-five and Thirty-eight Hundredths feet (25.38') an arc length of Thirty and Fifty-eight Hundredths feet (30.58'), said curve having a chord bearing of South Thirty-five Degrees Four Minutes Forty- four Seconds West (S 35°04'44" W) and a chord length of Twenty-eight and Seventy-six Hundredths feet (28.76') to a point; 4) South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43" W) a distance of Twenty-eight and Seventy-four Hundredths feet (28.74') to a point at lands now or formerly of Geir Magnusson as recorded in Deed Book 215, page 268; Thence along the northern side of a Sixty foot (60') right-of-way of English Drive North Eighty-nine Degrees Twenty-six Seconds Seventeen Seconds West (N 89°26' 17" W) a distance of Thirty and Zero Hundredths feet (30.00') to a point on said right-of-way; Thence along the same South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43" W) a distance of Twenty-two and Twenty-two Hundredths feet (22.22') to a point on the same; Thence continuing along said right-of-way North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89°12'09" W) a distance of Thirty and Five Hundredths feet (30.05') to a %Z" rebar found at lands now or formerly of Janet Cross as recorded in Deed Book 199 page 882; Thence along said lands now or formerly of Janet Cross North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89°12'09" W) a distance of One Hundred Fifteen and Twenty-eight Hundredths feet (115.28') to a'/z" rebar found; Thence along the same and continuing along lands now or formerly of Keith and Joyce Sealover as recorded in Deed Book 172 page 85, lands now or formerly of Scott and Carol Moser as recorded in Deed Book 198 page 555, lands now or formerly of Harry T. Dunn as recorded in Deed Book 31-X page 895, lands now or formerly of Joe and Sue Peck as recorded in Deed Book 31-Y page 77, lands now or formerly of Phillip Sullivan II, lands now or formerly of Michael DeJoseph as recorded in Deed Book 36-R page 583, lands now or formerly of Michelle L. Nissly as recorded in Deed Book 35-L page 1112, lands now or formerly of Normann L. Bilodeau as recorded in Deed Book 228 page 89, and lands now or formerly of Patrick J. and Gloria J. Duffy as recorded in Deed Book 162 page 336 South Zero Degrees Forty Minutes Forty-nine Seconds West (S 00°40'49" W) a distance of Two Hundred Seventy-eight and Thirty-four Hundredths feet (278.34') to a point at lands now or formerly of Amy E. Bankes as recorded in Deed Book 150 page 837; Thence along said lands now or formerly of Amy E. Bankes and continuing along lands now or formerly of Susan Jamieson as recorded in Deed Book 142 page 190 South Eleven Degrees Forty-two Minutes Zero Seconds East (S 11 °42'00" E) a distance of Seventy-two and Ninety-six Hundredths feet (72.96') to a point at lands now or formerly of Anthony T. and Marianne Intreri as recorded in Deed Book 103, page 309; Thence along said lands now or formerly of Anthony T. and Marianne Intreri South Seventy-eight Degrees Eighteen Minutes Zero Seconds West (S 78°18'00" W) a distance of Seventy-eight and Twenty-eight Hundredths feet (78.28') to a point at lands now or formerly of Hostetter Family Trustees as recorded in Deed Book 109, page 1029; Thence along said lands now or formerly of Hostetter Family Trustees North Seven degrees Ten Minutes Seventeen Seconds West (N 071017" W) a distance of Two Hundred Thirty-seven and Sixty-nine Hundredths feet (237.69') to an iron pipe found at lands of the same; Thence along the same and continuing along lands now or formerly of James C. and Patricia A. Wolf as recorded in Deed Book 32-X page 48 North Twelve Degrees Forty-nine Minutes Thirty-three Seconds West (N 12°49'33" W) a distance of Two Hundred Forty-one and Thirty-eight Hundredths feet (241.38') to a point at lands now or formerly of Gray Drive LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive LP the following Three (3) courses: 1) North Fifty-three Degrees Thirteen Minutes Sixteen Seconds East (N 53°13'16" E) a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13') to a point; 2) North Sixteen Degrees Zero Minutes Forty Seconds West (N 16°00'40" W) a distance of One Hundred Thirty and Forty-six Hundredths feet (130.46') to a point; 3) South Sixty-eight Degrees Twenty-three Minutes Zero Seconds West (S 68°23'00" W) a distance of Three Hundred Three and Forty-four Hundredths feet 4 (303.44') to a point on the eastern side of the Fifty foot (50') right-of-way of Gray Drive; Thence along said right-of-way North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Twenty-four and Ninety-five Hundredths feet (24.95') to a point on the same; Thence along the same North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Four and Forty-four Hundredths feet (4.44') to a point (said course inadvertently not labeled on the above referenced recorded drawing for Graham Hill Apartments); Thence by a curve to the left having a radius of Three Hundred Thirty-eight and Ninety- five Hundredths feet (338.95') an arc length of Ninety-three and Three Hundredths feet (93.03'), said curve having a chord bearing of North Five Degrees Twenty-six Minutes One Second West (N 05°26'01" W) and a chord length of Ninety-two and Seventy-four Hundredths feet (92.74') to a point on the same; Thence by a curve to the left having a radius of One Hundred Fifty and Zero Hundredths feet (150.00') an arc length of Thirty-three and Twenty-nine Hundredths feet (33.29'), said curve having a chord bearing of South Fifty-two Degrees Sixteen Minutes Twelve Seconds West (S 52°16' 12" W) and a chord length of Thirty-three and Twenty-two Hundredths feet (33.22') to a point (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an arc length of Seventy-seven and Eighty-nine Hundredths feet (77.89'), a chord bearing of South Fifty-eight Degrees Thirty-seven Minutes Forty-two Seconds West (S 58°37'42" W), and a chord distance of Seventy-seven and Two Hundredths feet (77.02')); Thence by a curve to the left having a radius of Three Hundred Thirteen and Ninety-five Hundredths feet (313.95') an arc length of Seventy-four and Seventy-eight Hundredths feet (74.78'), said curve having a chord bearing of North Sixteen Degrees Sixteen Minutes Thirty- five Seconds West (N 16°16'35" W) and a chord length of Seventy-four and Sixty Hundredths feet (74.60') to a nail found (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an arc length of One Hundred Thirty-nine and Eighty-nine Hundredths feet (139.89'), a chord bearing of North Ten Degrees Twenty Minutes Seven Seconds West (N 10°20'07" W), and a chord distance of One Hundred 'Thirty-eight and Seventy- four Hundredths feet (13 8.74')); Thence North Twenty-three Degrees Eight Minutes Ten Seconds West (N 23°08' 10" W) a distance of Sixty-nine and Eighty-six Hundredths feet (69.86') to a railroad spike found within South Market Street (S.R. 0114); Thence South Seventy-eight Degrees Thirty-one Minutes Twenty-four Seconds East (S 78°31'24" E) a distance of Thirty-nine and Seventy Hundredths feet (39.70') to a concrete monument found on the eastern side of the Eighty foot (80') right-of-way of South Market Street (S.R. 0114); Thence along the eastern side of said right-of-way by a curve to the left having a radius of One Thousand Nine Hundred Fifty and Eight Hundredths feet (1,950.08') an arc length of Five Hundred Forty-four and Eighty-eight Hundredths feet (544.88'), said curve having a chord bearing of North Four Degrees Forty-four Minutes Thirty-eight Seconds West (N 04°44'38" W) and a chord length of Five Hundred Forty-three and Eleven Hundredths feet (543.11') to a point 5 on the same at the southwest corner of lands now or formerly of Fulton J. and Colleen Kennedy as recorded in Deed Book 181 page 1042, the PLACE OF BEGINNING. The above described tract being known as the combination of Lot 1, Lot 2, and the proposed English Drive/Gray Drive right-of-way of the above referenced plan of Graham Hill Apartments and containing Fifteen and Thirty-five Hundredths Acres, more or less (15.35 Acres LOT 3A & LOT 3B COMBINED ALL THAT CERTAIN parcel of ground known as the combination of lots Lot 3A and Lot 3B as shown on a plan entitled "Final Subdivision and Land Development Plan for Graham Hill Apartments" recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page 5 on March 20, 2002, located in the Township of Upper Allen, within the County of Cumberland, in the Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT: Beginning at a point on the eastern side of the Fifty foot (50') right-of-way of Gray Drive at the northern line of lands now or formerly of James C. & Patricia A. Wolf as recorded in Deed Book 32-X, page 48; Thence along the eastern right-of-way of Gray Drive the following four (4) courses: 1) North Two Degrees Twenty-two Minutes Fifty-five Seconds East (N 02°22'55" E) a distance of Ninety-nine and Seventy-seven Hundredths feet (99.77') to point; 2) North Two Degrees Twenty-two Minutes Fifty-five Seconds East (N 02°22'55" E) a distance of One Hundred and Sixty-nine Hundredths feet (100.69') to a point; 3) North Two Degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Eleven and Twelve Hundredths feet (11.12') to point; 4) North Two Degrees Twenty-five Minutes Forty-seven Seconds. East (N 02°25'47" E) a distance of Sixteen and Forty-two Hundredths feet (16.42') to point at lands now or formerly of Gray Drive, LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive, LP the following three (3) courses: 1) North Sixty-eight Degrees Twenty-three Minutes Zero Seconds East (N 68°23'00" E) a distance of Three Hundred Three and Forty-four Hundredths feet (303.44') to a point; 2) South Sixteen Degrees Zero Minutes Forty Seconds East (S 16°00'40" E) a distance of One Hundred Thirty and Forty-six Hundredths feet (130.46') to a point; 3) South Fifty-three Degrees Thirteen Minutes Sixteen Seconds West (S 53°13'16" W) a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13') 6 to a point at lands now or formerly of James C. & Patricia A. Wolf as recorded in Deed Book 32-X, page 48; Thence along said lands now or formerly of James C. & Patricia A. Wolf South Eighty Degrees Seven Minutes Thirty-nine Seconds West (S 80°07'39" W) a distance of Seventy-three and Forty-two Hundredths feet (73.42') to a point on the eastern side of the Fifty foot (50') right- of-way of Gray Drive, the PLACE OF BEGINNING. The above described tract being known as the combination of lots Lot 3A and Lot 3B of the above referenced Plan of Graham Hill Apartments and containing One and Thirty-seven Hundredths Acres, more or less (1.37 Acres +/-). ALL OF THE FOREGOING BEING a combination of the following; the premises which Gray Drive, LP, by virtue of a deed from Greenville Agricultural Credit Corporation, a North Carolina Corporation, dated 12/17/99 and recorded 12/27/99 in Cumberland County Deed Book 213, Page 940, and the premises which Gray Drive, LP, by virtue of a deed from Richard E. Mowery and Roberta L. Mowery, dated 09/20/01 and recorded 09/21/01 in Cumberland County Deed Book 248, Page 2326, and the premises which Gray Drive, LP, by virtue of a deed from Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter Day Saints, a Utah Corporation, dated 11/12/01 and recorded 12/10/01 in Cumberland County Deed Book 249, Page 2691. You are entitled to file a petition to "strike" or "open" the judgment. In order to do so, you must promptly file a petition with the Court of Common Pleas of Cumberland County, Pennsylvania, as required by Rule 2959 of the Pennsylvania Rules of Civil Procedure. You file a petition by leaving it with the Office of Judicial Support in the Cumberland County Courthouse in Carlisle, Pennsylvania. A petition is a formal statement of your reasons for challenging the judgment. You must include the names of the parties at the top of the first page and the case number, which is shown above. The petition must state your reasons for challenging the judgment in separate numbered paragraphs. You have to sign the petition and include a sworn statement at the end of the document verifying that the facts you state in the petition are true and accurate. You will waive any defenses and objections not included in your petition to strike or open. You must therefore make every effort to raise all possible issues and defenses in your petition to strike or open in order to avoid waiving any claims. If you elect to file a petition, it must meet the requirements of Rule 2959 of the Rules of Civil Procedure. A full copy of Rule 2959 is attached to this Notice. You may also have to comply with local rules of procedure in effect in the county where the judgment was entered. If you do not file a petition challenging the judgment, the Plaintiff may take steps to collect on the judgment by asking the Sheriff to seize your assets. Accordingly, you should 7 immediately seek the advice of attorney. If you wish to discuss the matter with an attorney but do not know how to find one, you may request a referral by contacting the following agency: Cumberland County Bar Association 34 S. Bedford Street Carlisle, PA 17013 717-249-3166 Corporations may be unable to represent themselves in court. If the defendants include a corporation, the corporation must appear through an attorney if it intends to challenge the judgment. You may receive other papers and notices regarding the judgment. Those other papers do not negate or override this Notice. Likewise, this Notice is not intended to and does not negate any of the notices or information obtained in other papers that may be served upon you. We reiterate that you are required to act promptly if you wish to seek relief from the judgment. Under certain circumstances, you have only 30 days in which to file a petition after papers are served on you. Even if the 30-day rule does not apply, you must act promptly in order to protect your interests. Failing to act in a timely manner will render you unable to challenge the judgment at a later time. If you were incorrectly identified and the judgment was entered against you in error, you may be entitled to collect costs and reasonable attorney's fees as determined by the Court. Rule 2959. Striking off or Opening Judgment. Pleadings. Procedure. (a)(1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections, which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. 9 2009OEC _9 Ph 3; 5.5 ?'&fPvi?IVAI% ?114' y BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK COURT OF COMMON PLEAS 1900 E. 9th Street (B7-YB13-22-1) CUMBERLAND COUNTY Cleveland, OH 44114 Plaintiff, V. No:-851a?v?tT+errw GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 CONFESSION OF JUDGMENT Defendant. FOR POSSESSION OF REAL PROPERTY AFFIDAVIT OF DEFAULT The undersigned David W. Olenik, being duly sworn according to law, deposes and says that he is a Senior Vice President of the Plaintiff, PNC Bank, National Association, as successor to National City Bank, that in such capacity he is authorized to and makes this Affidavit on the Plaintiff's behalf, and that he further says to the best of his knowledge, information and belief as follows: (1) The Defendant Gray Drive, LP, ("Gray Drive"), is in default under the Mortgage, Mortgage Note and Amendments thereto referenced in the Plaintiff's Complaint for Confession of Judgment for Possession of Real Property for failure to pay to the Plaintiff payments as they became due in full on July 31, 2009. There is thus due and owing to the Plaintiff by the Defendant Gray Drive $18,961,344.62 in unpaid principal, interest in the amount of $224,384.04 as of October 15, 2009, plus the continuing accrual of interest on the unpaid principal amount at the per diem interest rate of $3,555.25 from October 15, 2009, totaling $19,185,728.66 in unpaid principal and interest as of October 15, 2009, plus $3,555.25 in interest each day thereafter. (2) The Mortgage, Mortgage Note and their respective amendments and modifications thereto authorize confession of judgment for possession against the Defendant Gray Drive after an Event of Default under the Mortgage Note and the amendments thereto, or after the amounts thereunder come due. (3) The Mortgage, Mortgage Note and the respective amendments and modifications thereto and other loan agreements referred to in the Plaintiff's Complaint all remain valid and enforceable and the aforesaid sums owed by the Defendant thereunder remain unpaid and justly due and owing. (4) The Mortgage, Mortgage Note and the respective amendments and modifications thereto, and the other loan agreements referred to in the Plaintiff's Complaint are true and correct copies of the same entered into by the Defendants as set forth in the Complaint. David W. Olenik Sworn to and subscribed before me this day of le ber, 2009. Notary Public My Commission Expires: ioaaa M. Mmio, Wbry Pd* Sate of Ohio, Lob Coee1Y eommisOn exp. An'. 13, 2011 2 FILED-O FiCc ^F THE PPCTI- r-v !MARY 2009 DEC -9 PM 3: 55 Cur, --:f 'v ? ` cOur? P9' IvSl`LYANo BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK 1900 E. 9th Street (B7-YB13-22-1) Cleveland, OH 44114 Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. No: 8510? ?l Vi( GRAY DRIVE, LP 76 Emlyn Drive Mechanicsburg, Pennsylvania 17055 Defendant. CONFESSION OF JUDGMENT FOR POSSESSION OF REAL, PROPERTY ENTRY OF JUDGMENT AND NOW, this q'1` day of December, 2009, judgment is hereby entered in favor of the Plaintiff, PNC Bank, National Association, as successor to National City Bank, and against the Defendant, Gray Drive, LP in ejectment and for immediate possession of the following real property: COMBINATION OF LOT 1, LOT 2, AND PROPOSED RIGHT-OF-WAY ALL THAT CERTAIN parcel of ground known as the combination of Lot 1, Lot 2, and the proposed English Drive/Gray Drive right-of-way as shown on a plan entitled "Final Subdivision and Land Development Plan for Graham Hill Apartments" recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page 5 on March 20, 2002, located in the Township of Upper Allen, within the County of Cumberland, in the Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT: Beginning at a point on the eastern side of the Eighty foot (80') right-of-way of South Market Street (S.R. 0114) at the southwest corner of lands now or formerly of Fulton J. and Colleen Kennedy as recorded in Deed Book 181 page 1042; Thence along said lands of Kennedy the following three (3) courses: 1) South Eighty-nine Degrees Four Minutes Thirty-five Seconds East (S 89°04'35" E) a distance of Four Hundred Seventy-nine and Eighty-nine Hundredths feet (479.89') to a'/2" rebar found; 2) South Fourteen Degrees Twenty-five Minutes Nine Seconds East (S 14°25'05)" E) a distance of Two Hundred Eighty-seven and Sixty-nine Hundredths feet (287.69') to an iron pipe with tack found; 3) North Fifty-eight Degrees Thirty-six Minutes Fifty-three Seconds East (N 58°36'53" E) a distance of One Hundred Sixty-seven and Forty-three Hundredths feet (167.43') to a %2" rebar found at lands now or formerly of Waren and Mary Persak as recorded in Deed Book 107 page 146; Thence along said lands now or formerly of Waren and Mary Persak and continuing along lands now or formerly of Gary A. and Judy Dambach as recorded in Deed Book 130 page 892 South Twenty-five Degrees Thirty-nine Minutes Three Seconds East (S 25°39'03" E) a distance of Two Hundred Eighty and Nineteen Hundredths feet (280.19') to a'/z" rebar found at lands now or formerly of David and Gina Jablomski as recorded in Deed Book 101 page 930; Thence along said lands now or formerly of David and Gina Jablomski South Forty-f6ur Degrees Twenty-five Minutes Thirty-five Seconds East (S 45°25'35" E) a distance of Seventy and Zero Hundredths feet (70.00') to a'/2" rebar found at lands now or formerly of John and Eileen Difonzo as recorded in Deed Book 105 page 689; Thence along said lands now or formerly of John and Eileen Difonzo South One Degree Eighteen Minutes Fifteen Seconds West (S O1 ° 18'l 5" W) a distance of Seventy-seven and Forty- four Hundredths feet (77.44') to a %Z" rebar found at lands now or formerly of Ralph and Gail Palmer as recorded in Deed Book 195 page 452; Thence along said lands now or formerly of Ralph and Gail Palmer South Seven Degrees Fifty-six Minutes Sixteen Seconds East (S 07°56' 16" E) a distance of Seventy-five and Thirty- eight Hundredths feet (75.38') to a'/z" rebar found at lands now or formerly of Mathew J. and Carole R. Brown as recorded in Deed Book 180 page 1003; Thence along said lands now or formerly of Mathew J. and Carole R. Brown South One Degree Fifty Minutes Forty-two Seconds East (S 01 °50'42" E) a distance of Eighty-three and Fitly-five Hundredths feet (83.55') to a'/2" rebar found at lands now or formerly of Phillip and Barbara Cain as recorded in Deed Book 126 page 1184; Thence along said lands now or formerly of Phillip and Barbara Cain the following two (2) courses: 1) South Twenty-three Degrees Fifty-one Minutes Sixteen Seconds West (S 23°51'16" W) a distance of Fifty-three and Fifty-six Hundredths feet (53.56') to a ''/2" rebar found; 2 2) South Sixty-two Degrees Five Minutes Twenty-two Seconds West (S 62°05'22" W) a distance of Fifty-three and-Seventy-eight Hundredths feet (53.78') to a '/z" rebar found at lands now or formerly of Gene and Lorie Below as recorded in Deed Book 111 page 356; Thence along said lands now or formerly of Gene and Lorie Below South Twenty-nine Degrees Forty-four Minutes Forty-nine Seconds West (S 29°44'49" W) a distance of One Hundred One and Fifty Hundredths feet (101.50') to a %2" rebar found at lands now or formerly of Deborah Witcomb as recorded in Deed Book 204 page 778; Thence along said lands now or formerly of Deborah Witcomb South Sixteen Degrees Twenty Minutes Fifty-one Seconds West (S 16°20'51" W) a distance of Eighty-three and Ninety-seven Hundredths feet (83.97') to a point at lands now or formerly of Arlington Hills Homeowners as recorded in Deed Book 30-X page 514; Thence along said lands now or formerly of Arlington Hills Homeowners the following four (4) courses: 1) North Sixty-one Degrees Thirty-six Minutes Nine Seconds West (N 61°36'09" W) a distance of One Hundred Thirty-five and Sixty-three Hundredths feet (13 5.63') to a point; 2) By a curve to the right having a radius of Three Hundred Twenty-six and Fifty-six Hundredths feet (326.56') an are length of One Hundred Fifty-five and Fifty-three Hundredths feet (155.53'), said curve having a chord bearing South Fifty-five Degrees Fifty-seven Minutes Five Seconds West (S 55°57'05" W) and a chord length of One Hundred Fifty-four and Six Hundredths feet (154.06') to a point; 3) By a curve to the left having a radius of Twenty-five and Thirty-eight Hundredths feet (25.38') an arc length of Thirty and Fifty-eight Hundredths feet (30.58'), said curve having a chord bearing of South Thirty-five Degrees Four Minutes Forty- four Seconds West (S 35°04'44" W) and a chord length of Twenty-eight and Seventy-six Hundredths feet (28.76') to a point; 4) South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43" W) a distance of Twenty-eight and Seventy-four Hundredths feet (28.74') to a point at lands now or formerly of Geir Magnusson as recorded in Deed Book: 215, page 268; Thence along the northern side of a Sixty foot (60') right-of-way of English Drive North Eighty-nine Degrees Twenty-six Seconds Seventeen Seconds West (N 89°26' 17" W) a distance of Thirty and Zero Hundredths feet (30.00') to a point on said right-of-way; Thence along the same South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43" W) a distance of Twenty-two and Twenty-two Hundredths feet (22.22') to a point on the same; Thence continuing along said right-of-way North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89°12'09" W) a distance of Thirty and Five Hundredths feet (30.05") to a '/2" rebar found at lands now or formerly of Janet Cross as recorded in Deed Book 199 page 882; 3 Thence along said lands now or formerly of Janet Cross North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89°12'09" W) a distance of One Hundred Fifteen and Twenty-eight Hundredths feet (115.28') to a %2" rebar found; Thence along the same and continuing along lands now or formerly of Keith and Joyce Sealover as recorded in Deed Book 172 page 85, lands now or formerly of Scott and Carol Moser as recorded in Deed Book 198 page 555, lands now or formerly of Harry T. Dunn as recorded in Deed Book 31-X page 895, lands now or formerly of Joe and Sue Peck as recorded in Deed Book 31-Y page 77, lands now or formerly of Phillip Sullivan 11, lands now or formerly of Michael DeJoseph as recorded in Deed Book 36-R page 583, lands now or formerly of Michelle L. Nissly as recorded in Deed Book 35-L page 1112, lands now or formerly of Normann L. Bilodeau as recorded in Deed Book 228 page 89, and lands now or formerly of Patrick J. and Gloria J. Duffy as recorded in Deed Book 162 page 336 South Zero Degrees Forty Minutes Forty-nine Seconds West (S 00°40'49" W) a distance of Two Hundred Seventy-eight and Thirty-four Hundredths feet (278.34') to a point at lands now or formerly of Amy E. Bankes as recorded in Deed Book 150 page 837; Thence along said lands now or formerly of Amy E. Bankes and continuing along lands now or formerly of Susan Jamieson as recorded in Deed Book 142 page 190 South Eleven Degrees Forty-two Minutes Zero Seconds East (S 11°42'00" E) a distance of Seventy-two and Ninety-six Hundredths feet (72.96') to a point at lands now or formerly of Anthony T. and Marianne Intreri as recorded in Deed Book 103, page 309; Thence along said lands now or formerly of Anthony T. and Marianne Intreri South Seventy-eight Degrees Eighteen Minutes Zero Seconds West (S 78°18'00" W) a distance of Seventy-eight and Twenty-eight Hundredths feet (78.28') to a point at lands now or formerly of Hostetter Family Trustees as recorded in Deed Book 109, page 1029; Thence along said lands now or formerly of Hostetter Family Trustees North Seven degrees Ten Minutes Seventeen Seconds West (N 0710'17" W) a distance of Two Hundred Thirty-seven and Sixty-nine Hundredths feet (237.69') to an iron pipe found at lands of the same; Thence along the same and continuing along lands now or formerly of James C. and Patricia A. Wolf as recorded in Deed Book 32-X page 48 North Twelve Degrees Forty-nine Minutes Thirty-three Seconds West (N 12°49'33" W) a distance of Two Hundred Forty-one and Thirty-eight Hundredths feet (241.38') to a point at lands now or formerly of Gray Drive LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive LP the following Three (3) courses: 1) North Fifty-three Degrees Thirteen Minutes Sixteen Seconds East (N 53°13'16" E) a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13') to a point; 2) North Sixteen Degrees Zero Minutes Forty Seconds West (N 16°00'40" W) distance of One Hundred Thirty and Forty-six Hundredths feet (130.46') to point; 3) South Sixty-eight Degrees Twenty-three Minutes Zero Seconds West (S 68°23'00" W) a distance of Three Hundred Three and Forty-four Hundredths feet 4 (303.44') to a point on the eastern side of the Fifty foot (50') right-of-way of Gray Drive; Thence along said right-of-way North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Twenty-four and Ninety-five Hundredths feet (24.95') to a point on the same; Thence along the same North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Four and Forty-four Hundredths feet (4.44') to a point (said course inadvertently not labeled on the above referenced recorded drawing for Graham Hill Apartments); Thence by a curve to the left having a radius of Three Hundred Thirty-eight and Ninety- five Hundredths feet (338.95') an arc length of Ninety-three and Three Hundredths feet (93.03'), said curve having a chord bearing of North Five Degrees Twenty-six Minutes One Second West (N 05°26'01" W) and a chord length of Ninety-two and Seventy-four Hundredths feet (92.74') to a point on the same; Thence by a curve to the left having a radius of One Hundred Fifty and Zero Hundredths feet (150.00') an arc length of Thirty-three and Twenty-nine Hundredths feet (33.29'), said curve having a chord bearing of South Fifty-two Degrees Sixteen Minutes Twelve Seconds West (S 52°16'12" W) and a chord length of Thirty-three and Twenty-two Hundredths feet (33.22') to a point (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an arc length of Seventy-seven and Eighty-nine Hundredths feet (77.89'), a chord bearing of South Fifty-eight Degrees Thirty-seven Minutes Forty-two Seconds West (S 58°37'42" VAT), and a chord distance of Seventy-seven and Two Hundredths feet (77.02')); Thence by a curve to the left having a radius of Three Hundred Thirteen and Ninety-five Hundredths feet (313.95') an arc length of Seventy-four and Seventy-eight Hundredths feet (74.78'), said curve having a chord bearing of North Sixteen Degrees Sixteen Minutes Thirty- five Seconds West (N 16°16'35" W) and a chord length of Seventy-four and Sixty Hundredths feet (74.60') to a nail found (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an are length of One Hundred Thirty-nine and Eighty-nine Hundredths feet (139.89'), a chord bearing of North Ten Degrees Twenty Minutes Seven Seconds West (N 10°20'07" W), and a chord distance of One Hundred Thirty-eight and Seventy- four Hundredths feet (138.74')); Thence North Twenty-three Degrees Eight Minutes Ten Seconds West (N 23°08' 10" W) a distance of Sixty-nine and Eighty-six Hundredths feet (69.86') to a railroad spike found within South Market Street (S.R. 0114); Thence South Seventy-eight Degrees Thirty-one Minutes Twenty-four Seconds East (S 78°31'24" E) a distance of Thirty-nine and Seventy Hundredths feet (39.70') to a concrete monument found on the eastern side of the Eighty foot (80') right-of-way of South Market Street (S.R. 0114); Thence along the eastern side of said right-of-way by a curve to the left having a radius of One Thousand Nine Hundred Fifty and Eight Hundredths feet (1,950.08') an are length of Five Hundred Forty-four and Eighty-eight Hundredths feet (544.88'), said curve having a chord bearing of North Four Degrees Forty-four Minutes Thirty-eight Seconds West (N 04°44'38"W) and a chord length of Five Hundred Forty-three and Eleven Hundredths feet (543.11') to a point 5 on the same at the southwest corner of lands now or formerly of Fulton J. and Colleen Kennedy as recorded in Deed Book 181 page 1042, the PLACE OF BEGINNING. The above described tract being known as the combination of Lot 1, Lot 2, and the proposed English Drive/Gray Drive right-of-way of the above referenced plan of Graham Hill Apartments and containing Fifteen and Thirty-five Hundredths Acres, more or less (15.35 Acres LOT 3A & LOT 3B COMBINED ALL THAT CERTAIN parcel of ground known as the combination of lots Lot 3A and Lot 3B as shown on a plan entitled "Final Subdivision and Land Development Plan for Graham Hill Apartments" recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page 5 on March 20, 2002, located in the Township of Upper Allen, within the County of Cumberland, in the Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT: Beginning at a point on the eastern side of the Fifty foot (50') right-of-way of Gray Drive at the northern line of lands now or formerly of James C. & Patricia A. Wolf as recorded in Deed Book 32-X, page 48; Thence along the eastern right-of-way of Gray Drive the following four (4) courses: 1) North Two Degrees Twenty-two Minutes Fifty-five Seconds East (N 02°22' 55" E) a distance of Ninety-nine and Seventy-seven Hundredths feet (99.77') to point; 2) North Two Degrees Twenty-two Minutes Fifty-five Seconds East (N 02°22'55" E) a distance of One Hundred and Sixty-nine Hundredths feet (100.69') to a point; 3) North Two Degrees Twenty-five Minutes Forty-seven Seconds East (N 02°25'47" E) a distance of Eleven and Twelve Hundredths feet (11.12') to point; 4) North Two Degrees Twenty-five Minutes Forty-seven Seconds. East: (N 02°25'47" E) a distance of Sixteen and Forty-two Hundredths feet (16.42') to point at lands now or formerly of Gray Drive, LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive, LP the following three (3) courses: 1) North Sixty-eight Degrees Twenty-three Minutes Zero Seconds East (N 68°23'00" E) a distance of Three Hundred Three and Forty-four Hundredths feet (303.44') to a point; 2) South Sixteen Degrees Zero Minutes Forty Seconds East (S 16°00'40" E) a distance of One Hundred Thirty and Forty-six Hundredths feet (130.46') to a point; 3) South Fifty-three Degrees Thirteen Minutes Sixteen Seconds West (S 53113'16" W) a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13') 6 to a point at lands now or formerly of James C. & Patricia A. Wolf as recorded in Deed Book 32-X, page 48; Thence along said lands now or formerly of James C. & Patricia A. Wolf South Eighty Degrees Seven Minutes Thirty-nine Seconds West (S 80°07'39" W) a distance of Seventy-three and Forty-two Hundredths feet (73.42') to a point on the eastern side of the Fifty foot (50') right- of-way of Gray Drive, the PLACE OF BEGINNING. The above described tract being known as the combination of lots Lot 3A and Lot 3B of the above referenced Plan of Graham Hill Apartments and containing One and Thirty-seven Hundredths Acres, more or less (1.37 Acres +/-). ALL OF THE FOREGOING BEING a combination of the following: the premises which Gray Drive, LP, by virtue of a deed from Greenville Agricultural Credit Corporation, a North Carolina Corporation, dated 12/17/99 and recorded 12/27/99 in Cumberland County Deed Book 213, Page 940, and the premises which Gray Drive, LP, by virtue of a deed from Richard E. Mowery and Roberta L. Mowery, dated 09/20/01 and recorded 09/21/01 in Cumberland County Deed Book 248, Page 2326, and the premises which Gray Drive, LP, by virtue of a deed from Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter Day Saints, a Utah Corporation, dated 11/12/01 and recorded 12/10/01 in Cumberland County Deed Book 249, Page 2691. r thonotary of Cumberla County b k 7 BLANK ROME LLP Attorneys for Plaintiff, Francis X. Crowley, Esquire PNC Bank, National Association, Atty. No. 41539 - as successor to National City Bank Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK Plaintiff, v. GRAY DRIVE, LP Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY No: 09-8512 Civil Term CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY PRAECIPE To the Prothonotary: Mark the judgment in the above case to the use of Pios Grande Graham Hill Apartments, L.P. upon payment of your costs only. .~.. ~e IIated;, , 2010. ~~ ` c' ~' BLANK RO `; ~ ; .. °t u, :.~.~ :. ~, , Francis X Crowley, Esquire o .5~`- - Atty. No. 41539 ~ U Lev Kalman, Esquire Atty. No. 89844 BLANK ROME LLP One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 BLANK ROME LLP Attorneys for Plaintiff, g~~,~. ~ 131832.01421/12005316x.1 ~ l y~7 ,~ ~~~~ys flLANK,ROME LLP - Attorneys for Plaintiff, Y~rancis X. Crowley, Esquire PNC Bank, National Assoc~i~atiogr'--,, Atty. No. 41539 as successor to National C~~ Bask Lev Kalman, Esquire 4, :1 ~ ; Atty. No. 89844 r`%":~ "`' ~ One Logan Square ~~, _~- _ Philadelphia, PA 19103-6998 : "r,,~_~ (215) 569-5500 ~' ~-' y ' l-i - PNC BANK, NATIONAL ASSOCIA`T'ION, AS ~. ~-~ SUCCESSOR TO NATIONAL CITY BANK COURT Or COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v• No: 09-8512 Civil Ternl GRAY DRIVE, LP CONFESSION OF JUDGMENT Defendant. FOR POSSESSION OF REAL >i'RO1'EI2TY ASSIGNMI+~NT OF JUDGMENT KNOW ALL MEN BY 1'IIBSE PRrSLNTS, that the undersigned, on behalf of PNC Banlc, National Association, As Successor to National City Bank ("I'NC"), with an address of 1900 E. 9"' Street (B7-YB 13-22-1), Cleveland, OH 44114, with frill authority to sign on its behalf, for good and valuable consideration, receipt of which is ack7iowledged, do hereby grant, bargain, transfer, assign, and make over to Pios Grande Graham Hill Apartments, L.P., a Delaware limited partnership, c/o 601 Delaware Avenue, ~Vilmingion, Delaware 19801, its successor and assigns, a certain .liidgment for Possession oFltcal Property recovered by PNC in the Court of Common Pleas of Cumberland County, Pennsylvania, 2009, No. 09-8512, against Gray Drive, LP, of 76 Einlyn Drive, Mechanicsburg, I'A 17055, for Possession of the real property described in.th~ attached Exhibit "A", which description is made a part hereof; together ~~ t_~ T M1~--,, ",~'_ - -~'. :.-~~ =? n ~, _._~, ~1 -='~ • ~i7 n~ c:, with all the benefits and advantages that may be obtained thereby, and full power to enforce and 131832.01421/12005301v.1 recover he judgment to his or her own and their own use. I further authorize and empower the prothonotary or any attorney on behalf of the assignee to marls the judgment to the assignee's use. IN WITNESS WHEREON, I have set my hand and seal this 24th day of June, 2010. PNC BANK, NATIONAL ASSOCIATION, sticccssor to National City Bank By. /~~~~rru--.-,~ . Name: !~-rv,~C c /`.(n-~~U Title: u? ~' ~~~~ ~ ~--~ Signed, Sealed, and Delivered In the Presence of: G2t~~ (Witness) 1..,re~L Qr'a,v j ~ (Witness) Signature page to Assignment of Judgment (09~ 8512) 131832.01421/12005301v.1 EXHIBIT rr~ rr _. ----- - -- - CO_MBIN14TION OF'LDT 1', LOT 2, AND PROPOSED RIGHT =. - - OF-13'Ap • • .ALL TH~~'-CEEgAlNparcel of ground known as the combination ofLot 1, Lot 2, and the proposed English DrivelGray Drive right-of-way as shown on a plan entitled "Final Subdivision and Land DevelapmentPlan for Graham Hfll Apartments " .recorded in the Cumberland County Recorder of Deeds in Plan Book 85, page S on March Z0, Z002, located in the. Township of , Upper Allen, within the County of Cumberland, in' the Cornmomvealth of Pennsylvania, being more fully bounded and - described as follows to WIT :• Beginning at a point on the eastern side of the Eighty foot (801 ' -right of-way of South tYlarket Street (S.R 0114) at the southwest . corner of lands now or formerly of Fulton ,I, and Colleen Kennedy as recorded in Deed Book 181 page 1042; Thence along said Lands of Kennedy the following three (3) . courses: . 1) 'South Eighty-nine Degrees Four Minutes Thirty-five Seconds East (S 89°04'35" E) a distance of Four Hundred Seventy-nine and Eighty-nine Hundredths feet (479.89) to a % " rebar found; Z) South Fourteen Degrees. Twenty-five Minutes Nine Seconds East (S 14°2S'09" E) a distance of Two Hundred Eighty-seven and Sixty-nine Hundredths feet (287.6Q) to an iron pipe with tack found; 3) North Fifty-eight Degrees Thirty six tYlinutes Fifty-three Seconds East (N 38°36'53 " E) a distance of One Hundred Sixty- seven and Forty-three Hundredths feet (167.43) to a % " rebar found at lands now or formerly of Waxen and Mary Persak as recorded to Deed Book 107page 146; Thence along said lands now or formerly of Waxen and Mary Persak. and continuing along lands now or formerly of Gary A, and Judy Dambach as recorded in Deed Book 130 page 89Z South ~ Twenty five Degrees Thirty-nine Minutes Three Seconds East (S 25°39'03"E) a distance ofTwo.Hundred Eighty andNineteen ' Hundredths feet (280.191 fo a '/z "rebar found at lands now or formerly of David and Gina Jablomski as recorded in Deed Boak 101 page 930; Thence cclpng said lands now or formerly of David and Gina . .Tablomski South Forty four Degrees 7~venty; five Minutes T7~irty- five Seconds East (S 45°25'35"E) a distance of Seventy and Zero. Hundredths feet (70, DO) to a ~/ ''rebar found at lands naw or formerly of.Tahn and Eileen Difonzo as recorded in Deed Book . _. .. IOS page 689; Page 1 of 8 7 Thence along said Lands now or formerly ofTohn and Eileen Difonzo South One Degree Eighteen Minzctes F~een Seconds West (S 01°18'15" W) a distance of Seventy-seven-and Forty four Hundredths feet .(77.44') to .a %z "rebar found at lands now or formerly oflZalph and Gail Palmer as recorded in Deed Book 195 page 452;. _____. Thence along said lands now or formerly of Ralph and Gail .Palmer South Seven Degrees F~-six Minutes Sixteen Seconds East (S 07°56'16"E) a distance of Seventy-five. and Thirty-eight - Hundredths feet (75.38') to a % "rebar found at lands now or formerly of Mathew J: and Carole R. Brown as recorded in Deed ', Book 180 page 1003; Thence along said lands now or formerly of Mathew J. and Carole R, Brown South One Degree Fifty Minutes Forty-two Seconds East (S 01 °50'4,2"E) a distance of Eighty-three and Fitly five , Hundredths feet (83.55') to a % "rebar found at lana's now or •s formerly ofPhillip and Barbara Cain as recorded in Deed Book - IZ6page 1184; a Thence along said lands now or formerly of Phillip and Barbara Cain the following two (2) courses: . I) South Twenty-three Degrees Fifty-one Minutes Sixteen Seconds West (S Z3 °5l'16" ~ a distance of Fifty-three and Fifty- six Hundredths feet (53, 56) to a % "rebar found; 2) South Sixty-two Degrees Five Minutes Twenty-two Seconds West (S 62°05'22 " ~ a distance of Fifty-three and-Seventy-eight Hundredths feet (53,78) to a f " rebar found at lands now or formerly of Gene and Lone Below as recorded in Deed Book 111 page 356; •~ Thence along said lands now or formerly of Gene and Lorie Below South TSveniy-nine Degrees Forty four Minutes Forty-nine Seconds West (S Z9°44'49" W) a distance of One Hundred One and Fifty Hundredths feet (101.50') to a % "rebar found at lands now or formerly of Deborah }3ritcornb as recorded in Deed Boolc 204 page 778; Thence along said lands now ar formerly ofDeborah YYitcomb South Sixteen Degrees Twenty tl~inutes Fifty-one Seconds West (S ' IS°20'51 " I3r} a distance of Eighty-three and Ninety-seven Hundredths feet (83.97) to a point at lands now or formerly of 14rlington Hills Homeowners as recorded in Deed Book 30 Xpage 514; Thence along said lands now or formerly of.4rlingtan Hills Homeowners the following four (4) courses: 1) North. Sixty-one Degrees Thirty-six Minutes Nine Seconds West (N 61 °36'09" W} a distance of One Hundred Thirty-fzve and Sixty-three .Fundredths feet (135.63) to a point; . Z) By a curve to the right having a radius. of Three Hundred 7ltrenty-six and Fifty-six Hunaredths feet (326.56) an arc length of Page 2 of 8 . ~ One Hundred F~five and Fifty-three Hundredths feet~(155,53 }, .. said curve having a chord bearing South Fi}ly-five Degrees,Fifty- seven l~r~utes Five Seconds West (S SS°S7'OS" W) and a chord length of One Hundred F~ four and Six Hundredths feet (154.06) to a point; , 3) By a curve to the left having d radius of T4~venty eve and 2"hirty-eight Hundredths feet (Z5.38~) an arc length of Thirty. and Fifty-eight Hundredths feet (30.58 ), said curve having a chord bearing of South Thirty-five Degrees Four Minutes Forty four Seconds West (S 35°04'44" Yl~ and a chord Zength of Twenty-eight and Seventy-six Hundredths feet (28, 76) to a point; 4) South Zero Degrees Thirty-three Minutes Forty-three -- Seconds West (S 00°33 '43 " Y~ a distance of Twenty-eight and Seventy four Hundredths feet (Z8, 74) to a point at. lands now or formerly of Geir Magnusson as recorded in Deed Boob ZI S, page Z68; . Thence along the northern side of a Sixty foot (60) right-of-way of English Drive North Eighty-nine Degrees Twenty-six Seconds Seventeen Seconds West (N 89°26'17" W) a distance of Thirty and Zero Hundredths feet (30. DO) to a point on said right-of-way; Thence along the same South Zero Degrees Thirty-three Minutes Forty-three Seconds West (S 00°33'43_" YTS a distance of 71a~enty- two and Twenty-two Hundredths feet (22,22) to a point an the same; Thence continuing along said right-of-way North Eighty-nine Degrees 7bvelve Minutes Nine Seconds West (N89°IZ'09" Y~ a distance of Thirty and Five Hundredths feet (30.OS) to a `/: "rebar found at lands now or formerly of Janet Cross as recorded in Deed Book 199 page 88Z; Thence along said Cands now or formerly ofTanet Cross North Eighty-nine Degrees Twelve Minutes Nine Seconds West (N 89°12'09" A~ a distance of One Hundred F~een and Twenty- eightHundredths feet (II S, ZB) to a % "rebar found; Thence along the same and continuing along lands now or formerly of Keith and Joyce Sealover as recorded in Deed Book 172 page 85, lands now or formerly of Scott and Carol Moser as recorded in Deed Book 198 page. 555, lands now or formerly of .Harry T, Dunn as recorded in Deed Book31 Xpage~89S, lands . now or formerly of.Ioe and Sue Peck as recorded in Deed Boak 31-Ypage 77, lands now ar formerly of Phillip Sullivan II, lands now or formerly ofMichael De.Toseph us recorded in Deed Book 36-R page 583, lands now orfarmerly.ofMichelleL. Nissly as Page 3 of 8 . .. recorded in Deed Book 3 S-L page 1112, Lands now or formerly of Narmann L, Bilodeau as recorded in Deed Book 228 page 89, and Lands now orforrnerly of Patrick J. and Glaria J, Duffy as recorded in Deed Book 162 page 336 South Zero Degrees Forty l~nutes Forty-nine Seconds West (S 00°40'49" W} a distance of Twa Hundred Seventy-eight and 77tirty four Hundredths feet (278.34) to a point at lands now or formerly ofAmy E. Banker as recorded iri Deed Book 1 SO page 837; Thence along said lands naw or formerly ofAmy E. Banker and . continuing along lands now or formerly of Susan Jamieson as recorded in-Deed Book 142 page I90 South Eleven Degrees Forty- two Minutes Zero Seconds East (S 11 °42'00"E} a distance of Seventy-two and Ninety-six Hundredths feet (72.96) to a point at lands now or formerly ofAnthorry 7: and Marianne Intreri as recorded in Deed Book 103, page 309; Thence along said lands now or formerly oftlnthony T, and Marianne 1'ntreri South Seventy--eight Degrees Eighteen Minutes . Zero Seconds West (S 78°18'00" W} a distance of Seventy-eight and Twenty-eight Hundredths feet (78.28) to ~a point at lands now or formerly of Hostetter Family Trustees as recorded in Deed Boak X 09, page 1029;. Thence along said lands naw or formerly of .~3ostetter Family " Trustees North Seven degrees Ten Minutes Seventeen Seconds West (N07°10'17" }~ a distance of Two Hundred' Thirty-seven and Sixty-nine Hundredths feet (237.69) to an iron pipe found at lands o, f the same; . Thence along the same and continuing along lands naw or formerly of James C, and Patricia A. Wolf as recorded in Deed Book 3Z X page 48 North Twelve Degrees Farty-nine Minutes Thirty-three Seconds West (N 12°49'33 " W} a distance af.Zyvo Hundred Farty-one and Thirty-eight Hundredths feet (241.38) to a point at lands now or formerly of Gray Drive LP as recorded in Deed Book 213, page 940; Thence along said lands now or formerly of Gray Drive LP the following Three (3} courses; 1} North Fifty-three Degrees Thirteen Minutes Sixteen Seconds East (N 53°13'16" EJ a distance of Three Hundred Eighteen and Thirteen Hundredths feet (318.13) to a point; 2) North Sixteen Degrees Zero Minutes Forty Seconds West (N 16°00'40" ~ a distance of One Hundred Thirty and Forty-six H'urtdredths feet (130.46) to a point; Page 4 of 8 • 3) South• Sixty--eight Degrees Twenty-three Minutes Zero Seconds West (S 68°23'00" F~ a distance of Three .Hundred Three and Forty four Hundredths feet (303,44) to a point on the eastern side of the F~ foot (SO) right-of-way of Gray Drive; Thence- along said right-of--way North Two degrees Twenty-five Minutes Forty-seven Seconds East (N 0.2°25'47" E) a distance of Twenty four and Nnety; five Hundredths feet (24.95) to a point on the same; Thence along the same North 7~vo degrees Twenty five Minutes Forty seven Seconds East(NO2°25'47"E) a distance afFour~and Forty four Hundredths feet (4.44) to a point (said course - . inadvertently not labeled on the above referenced recorded drawing for Graham Hill Apartments); Thence by a curve to the le, ft having a radius of Three Hundred Thirty-eight~and Ninety-fcve Hundredths feet (338.95) an arc length of Ninety-three and Three Hundredths feet (93.03 ), satd curve having a chord bearing of North Five Degrees Twenty-six Minutes One Second West (N OS°26'DI " Y~ and a chord length of Ninety-two and Seventy four Hundredths feet (92.74) to a paint on the same; Thence by a curve to the left having a radius of One Hundred Fifty and Zero Hundredths feet (I 50.00) an arc length of Thirty-three and Twenty-nine Hundredths feet (33.29 ), said curve having a chord bearing of South Fifty-two Degrees Sixteen Minutes Twelve Seconds West (S S2°16'1.2 " Y1~ and a chord length of Thirty-three and Twenty-two Hundredths feet (33.22) to a point (said curve labeled on the above referenced recorded plan for Graham Hill Apartments as having an arc length of Seventy-seven and Eighty- nine Hundredths feet (77.89 ), a chord bearing of Sauth Fifty-eight Degrees Thirty-seven Minutes Farty-two Seconds West (S 58°37'42" Y~, anda chord distance of .Seventy-seven and Two Hundredths feet (77.02 )); • Thence by a curve to the le, ft having a radius of Three Hundred Thirteen and Ninety five Hundredths feet (313.95) an arc length of Seventy-four and ,Seventy-etghtHundredths feet (74.78 J, said curve having a chord bearing ofNarth Sixteen Degrees Sixteen Minutes Thirty-five Seconds West (N16°16'35" W) and a chord length of Seventy four and Sixty Hundredths feet (74.60') to a nail found (said curve labeled on the above referenced recorded plan for Graham Hi11 Apartments as having an arc length of One • Tl'undred Thirty-nine and Eighty-nine Hundredths feet (139, 89 ), a chord bearing of North Ten Degrees :L'wenty Minutes Seven . Seconds West (N10°ZO'07" W), and a chord distance of One Hundred Thirty-eight and Seventy four Hundredths feet (138.74)); Page 5 of 8 Thence North Twenty-three Degrees Eight 14~finutes Ten Seconds -:> West (N23°08'10" ~ a distance ofSizty-nine and Eighty-six Hundredths feet (69.86) to a railroad spike found within South Market Street (S.R 0114); Thence South Seventy-eight Degrees Thirty-one Minutes Twenty- fourSecandr~East (S 78°31'Z4"E) a distance of Thirty-nine and Seventy Hundredths feet (39.70) to a concrete rnonumentfound on the eastern side of the.Eighty foot (80) right-of-way of South Market Street (S.R 0114); Thence along the eastern side ofsaid right-of-way by a curve to the left having a'radius of One ~'housand Nine Hundred F~ and R Eight Hundredths feet (1, 950, 08 J apt arc length of Five Hundred • Forty four and Eighty-eightHundredths feet (544.88 ), said curve having a chord bearing ofNarth Four Degrees Forty four Minutes Thirty-eight Seconds West (N 04°44'38" W) and a chord Cength of Five Hundred Forty-three and Eleven Hundredths feet (543,11) to a point on the same at the southwest corner of lands now or formerly of Fulton T, and Colleen Kennedy as recorded in Deed Book 181 page 1042, the PLACE OF BEGINNING. The above described tract being lrnown as the combination ofLat 1, Lot Z, and the proposed English Drive/Gray Drive right-of-way of the above referenced plan of Graham Hill Apartments and containing F~een and Thirty five Hundredths Acres, more or less (I S.3S Acres +/), LOT 3A & LOT 3B COMB.~NE17 ALL THAT CERTAI1Yparcel ofground known as the combination of lots Lot 3A and Lot 3B as shown on a plan entitled 'Final Subdivision and Land Development Plan for Graham Hill .Apartments "recorded in the Cumberland County Recorder of Deeds in Plan Book 8S, page S on March 20, 2002, located in the Township of Upper Allen, within the County of Cumberland, in the Commonwealth of Pennsylvania, being more fully bounded and described as follows to WIT; Beginning at a point an the eastern side of the Fifty foot (SO right-of-way of Gray Drive at the northern line of lands now or formerly ofTames C. ~ Patricia A. Wolf as recorded in Deed Bodk 32-X, page 48; Thence along the eastern right-of--way of Gray Drive the following four (4) courses; . 1) North 7yvo Degrees Twenty-two Minutes F~-fcve Seconds East (N OZ °ZZ'SS " E) a distance of Ninety-nine and Seventy-seven Hundredths feet (99..77) to point; Page 6 of 8 Z) North Two Degrees ?lventy-two Minutes F~-ftve Seconds East (11T OZ°22'SS" E) a distance of One Hundred and Sixty-nine Hundredths feet (100, t?9) to a point; 3) North Two Degrees Twenty; five Minutes Forty-seven Seconds East (N OZ°.25'47" E) a distance of Eleven and Twelve Hundredths feet (11,12) to point; . 4) North Two Degrees Twenty-five Minutes Forty-seven Seconds. East (N OZ°ZS'47" E) a distance of Sixteen anc7 Forty- two Hundredths feet (16.42) to point at lands now or formerly of Gray Drive, LP as recorded in Deed Book Z13, page 940; Thence along said lands now or formerly of Gray Drive, LP the following three (3) courses: 1) North Sixty-eight Degrees Twenty-three Minutes Zero Seconds East (N 68°23 '00" E) a distance of Three Hundred Three and Forty-four Hundredths feet (303.44) to a point; Z) ,South Sixteen Degrees Zero Minutes Forty Seconds East (S 16°00'40" E) a distance of One Hundred Thirty and Forty-siz Hundredths feet (130.46) to a point; ' 3) South Fifty-three Degrees Thirteen Minutes Sixteen Seconds West (S 53°13'16" R~ a distance of Three Hundred Eighteen and Thirteen Hundredths feet (31'8.13) to a point-at lands now or formerly of James C, & Patricia A. Wolf as recorded in Deed Book 32 ~ page 48; ' Thence along said lands now or formerly ofTames C. & Patricia .4. Wolf South Eighty Degrees Seven Minutes Thirty-nine ,seconds West (S 80°07'39" ~ a distance of Seventy-three and Forty-two Hundredths feet, (73, 4Z) to a point an the eastern side of the F~ foot (SD') right-of-way of Gray Drive, the PLACE OF .BEGINN,QYG, The above described tract being known as the combination of lots Lot 3A and Lot 3B of the above referenced Plan of Graham Hill Apartments and containing One and Thirty=seven Hundredths Acres, more or less (1.37Acres +/). ALL OF TBE FOREGOING BEING a combination of the fallowing; the premises. which Gray Drive, LI', by virtue of a deed from Greenville Agricultural Credit Corporation, a North ~'arolina Corporation, dated IZ/I7/99 and recorded IZ/Z7/99 in Cumberland County Deed Book ZT 3, Page 940, and Page 7 of 8 p ; ~ the premises which -Gray Drive, LP, by virtue of a deed from Richard E, Moyvery and Roberta L. Mowery, dated 09/20/01 and recorded 09/21/01 in Cumberland County Deed Book 248, Page 2326, and . the premises which Gray Drive, LP, by virtue of a deed from Corporation of the Presiding Bishop of the Church of Jesus Christ . of the Latter Day Saints, a Utah Corporation, dated 11/12%01 and " recorded 12/1 D/01 in Cumberland Countyy Deed Book 249, Page 2691. Page 8 of 8` BLANK ROME LLP Francis X. Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 PNC BANK, NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK Plaintiff, V. GRAY DRIVE, LP Attorneys for Plaintiff, PNC Bank, National Association, as successor to National City Bank COURT OF COMMON PLEAS CUMBERLAND COUNTY No: 09-8512 Civil Term CONFESSION OF JUDGMENT Defendant. FOR POSSESSION OF REAL PROPERTY WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the undersigned's appearance on behalf of the Plaintiff, PNC Bank, National Association, as Successor to National City Bank. BL K ROME LLP s By: r=y= Francis X Crowley, Esquire Atty. No. 41539 Lev Kalman, Esquire Atty. No. 89844 BLANK ROME LLP One Logan Square a Philadelphia, PA 19103-6998 C- (215) 569-5500 133597.01000/218823I8v.I GEBHARDT & SMITH LLP Ramsay M. Whitworth, Esq. Attorney No. 85208 One South Street, Suite 2200 Baltimore, Maryland 21202 (410) 385-5101 PNC BANK NATIONAL ASSOCIATION, AS SUCCESSOR TO NATIONAL CITY BANK, Plaintiff V. GRAY DRIVE, LP Defendant Attorneys for Pios Grande Graham Hill Apartments, L.P., assignor-in-interest to Plaintiff, PNC Bank, National Association, as successor to National City Bank COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No: 09-8512 Civil Term CONFESSION OF JUDGMENT FOR POSSESSION OF MEAL PROPERTY NOTICE OF ENTRY OF APPEARANCE DUE TO ASSIGNMENT OF JUDGMENT Pios Grande Graham Hill Apartments, L.P., assignor-in-interest to the Plaintiff, PNC Bank National Association, as successor to National City Bank, hereby provides notice of the appearance of its undersigned counsel on its behalf in this case as assignor,-in-interest to the Plaintiff, and further provides notice of the withdrawal of the appearance of Bank Rome LLP, Francis X. Crowley, Esq. and Lev Kalman, Esq., pursuant to the Withdrawal of Appearance filed ..by Blpnk Rome LLP on this same date. _ e C", 0 GEBHARDTr & SMITH LLP Ramsay M. Whitworth, Esq. Atty. No. 85208 One South Street, Suite 2200 Baltimore, Maryland 21202 (410) 385-5101