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HomeMy WebLinkAbout10-7008 QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff VS. EASTWOOD CONTSTRUCTION CO., INC. AND EASTWOOD HOMES, INC. Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION C3 . DOCKET NO. ??7 aQ r r `" rn • car ?2 - s-- -u rn ° ?? rv , ? rn NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 34 South Bedford St. Carlisle, PA 17013 717-249-3166 x'9.?. ov pd ?? ck e 'q 74 Pd A P?-6-o-7 y6 QUALITY BUILDERS WARRANTY : IN THE COURT OF COMMON PLEAS CORPORATION, : CUMBERLAND COUNTY, Plaintiff : PENNSYLVANIA VS. EASTWOOD CONSTRUCTION CO., INC : CIVIL ACTION AND EASTWOOD HOMES, INC. Defendants DOCKET NO. COMPLAINT fQ? 766?- - `l AND NOW, this 4`h day of November, 2010 comes the Plaintiff, Quality Builders Warranty Corporation (QBW) and files the within Complaint against the above named Defendants and avers in support hereof the following: 1. Plaintiff is Quality Builders Warranty Corporation,(QBW) a Pennsylvania corporation engaged in the Ten-Year New Home Warranty business with its principal place of business situate at 325 North Second Street, Wormleysburg, Cumberland County, Pennsylvania, 17043. 2. New home builders who apply and become members of QBW offer warranties against certain specified defects in homes they construct. 3. Defendant, Eastwood Construction Co., Inc. (Eastwood Construction) is a North Carolina corporation engaged in the new home building business with its principal place of business situate at 2857 Westport Road, Charlotte, NC 28208. 4. Defendant, Eastwood Homes, Inc. (Eastwood Homes) is a North Carolina corporation engaged in the new home building business with its principal place of business situate at 2857 Westport Road, Charlotte, NC 28208. COUNT T Ouality Builders Warranty Corporation VS. Eastwood Construction Co. Inc. 5. On June 23,1997, in connection with its application to become a member of QBW, Eastwood Construction signed, and sent to QBW at its principal place of business, a Builder Agreement in which Eastwood Construction agreed to become a member in the QBW Ten-Year Limited Warranty Program. 6. QBW executed the Builder Agreement on July 1,1997, at its office in Cumberland County Pennsylvania, and Eastwood Construction was approved for membership. Eastwood Construction was provided with a fully executed copy of the Builder Agreement. A true and correct copy of the fully executed Builder Agreement is attached hereto incorporated herein and marked as "Exhibit I". 7. In May of 2003 Eastwood Construction contacted QBW in an attempt to obtain a reduced membership rate for enrollment of its homes. 8. The parties agreed that Eastwood Construction would receive a $1.15 per thousand rate in exchange for its commitment to maintain its membership in the QBW program. The previous rate Eastwood Construction was paying was $1.65 per thousand. 9. QBW forwarded an Amendment to the Builder Agreement to Eastwood Construction. Eastwood Construction executed the Amendment and forwarded it to QBW's principal place of business. 10. QBW then executed the Amendment at its principal place of business and Eastwood Construction was provided with a reduced rate in accordance with the executed Amendment to the Builder Agreement. A true and correct copy of the Amendment is attached hereto incorporated herein and marked as "Exhibit 2". 11. The term of the Amendment to the Builder Agreement was for three years to commence on May 15, 2003 which was automatically renewable for like terms unless thirty (30) days prior to the expiration of the current term either party provided the other thirty (30) days advanced written notice. 12. Neither party provided the other the required notice; therefore the Amendment renewed May 15, 2009 for another three year term with an expiation date of May 15, 2012. 13. Eastwood Construction has breached its Builder Agreement as Amended by failing to enroll all homes it constructs for the period required. 14. Eastwood Construction forwarded a letter to QBW dated November 1, 2010, indicating that they were terminating their membership in the QBW program effective December 31, 2010. A true and correct copy of said letter is attached hereto incorporated herein and marked as "Exhibit 3". 15. Section B 1 of the Builder Agreement executed by Eastwood Construction states, "Builder agrees to enroll in the program every home Builder, Builder's Principals, or any entity under Builders or Builder's Principals common control constructs." (See Exhibit 1). 16. The Builder Agreement states in Section B 5, "If Builder fails to enroll any eligible homes as required by this Agreement, QBW may seek specific performance or other appropriate relief in legal or equitable proceedings." (See Exhibit 1). 17. Eastwood Construction's failure to enroll all homes they construct for the required period is a violation of the Builder Agreement as amended and QBW seeks to specifically enforce the obligation of the Builder Agreement, as amended to compel Eastwood Construction to enroll all homes they construct in accordance with QB W's membership agreements until to May 15, 2012. 18. In the alternative, QBW seeks damages from Eastwood Construction for homes, which the Eastwood Construction would be required to place warranties on during that period of time, which damages exceed the sum of $50,000. 19. QBW also seeks attorney's fees as authorized by Section B 5 of the Builder Agreement. 20. Jurisdiction is proper in the Pennsylvania courts since Section E 5 of the Builder Agreement indicates, "This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder hereby consents to the personal jurisdiction of the Pennsylvania courts." WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, demands judgment against Eastwood Construction Co., Inc. as follows: 1. That the Builder Agreement as amended executed by Defendant Eastwood Construction Co., Inc. be specifically enforced to require Eastwood Construction Co., Inc. to enroll all homes they construct for the period May 15, 2009 through May 15, 2012 in accordance with the Builder Agreement as amended. 2. In the alternative that Defendant, Eastwood Construction Co., Inc. be ordered to pay damages equal to warranty fees, which QBW was entitled to based upon homes projected for the period May 15, 2009 to May 15, 20012, said amounts to be in excess of $50,000.00. 3. Attorney's fees as authorized by Section B 5 of the Builder Agreement. 4. Such other relief as deemed appropriate by the court. COUNT H Quality Builders Warranty Corporation VS. Eastwood Homes, Inc. 21. On December 2, 2005, in connection with its application to become a member of QBW, Eastwood Homes signed, and sent to QBW at its principal place of business, a Builder Agreement with addendum in which Eastwood Homes agreed to become a member in the QBW Ten-Year Limited Warranty Program and maintain its membership in the QBW Ten-Year Limited Warranty Program for three years. 22. QBW received the Builder Agreement as Amended at its principal place of business on December 8, 2005. 23. QBW executed the Builder Agreement December 13, 2005, at its office in Cumberland County Pennsylvania, and Eastwood Homes was approved for membership. Eastwood Homes was provided with a fully executed copy of the Builder Agreement. A true and correct copy of the fully executed Builder Agreement as amended is attached hereto incorporated herein and marked as "Exhibit 4". 24. The term of the Addendum to the Builder Agreement was for three years to commence on December 13,2005, which was automatically renewable for like terns unless thirty (30) days prior to the expiration of the current term either party provided the other thirty (30) days advanced written notice. 25. Neither party provided the other the required notice; therefore the Addendum renewed on December 13,2008 for another three year term with an expiation date of December 13, 2011. 26. Eastwood Homes has breached its Builder Agreement as Amended with QBW by failing to enroll all homes as required for the period required. 27. Eastwood Homes forwarded a letter to QBW dated November 1, 2010, indicating that they were terminating their membership in the QBW program effective December 31, 2010. (See Exhibit 3) 28. Section B 1 of the Builder Agreement executed by Eastwood Homes states, "Builder agrees to enroll in the program every home Builder, Builder's Principals, or any entity under Builders or Builder's Principals common control constructs." (See Exhibit 4). 29. The Builder Agreement states in Section B 5, "If Builder fails to enroll any eligible homes as required by this Agreement, QBW may seek specific performance or other appropriate relief in legal or equitable proceedings." (See Exhibit 4). 30. Eastwood Homes' failure to enroll all homes they construct for the required period is a violation of the Builder Agreement as amended and QBW seeks to specifically enforce the obligation of the Builder Agreement, as amended to compel Eastwood Homes to enroll all homes they construct in accordance with QBW's membership agreements until to December 13, 2011. 31. In the alternative, QBW seeks damages from Eastwood Homes for homes, which Eastwood Homes would be required to place warranties on during that period of time, which damages exceed the sum of $50,000. 32. QBW also seeks attorney's fees as authorized by Section B 5 of the Builder Agreement. 33. Jurisdiction is proper in the Pennsylvania courts since Section E 5 of the Builder Agreement indicates, "This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder hereby consents to the personal jurisdiction of the Pennsylvania courts." WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, demands judgment against Eastwood Homes, Inc. as follows: 1. That the Builder Agreement as amended executed by Defendant Eastwood Homes, Inc. be specifically enforced to require Eastwood Homes, Inc. to enroll all homes they construct for the period December 13, 2008 through December 13, 2011 in accordance with the Builder Agreement as amended. 2. In the alternative that Defendant, Eastwood Homes, Inc. be ordered to pay damages equal to warranty fees, which QBW was entitled to based upon homes projected for the period December 13, 2008 to December 13, 2011, said amounts to be in excess of $50,000.00. 3. Attorney's fees as authorized by Section B 5 of the Builder Agreement. 4. Such other relief as deemed appropriate by the court. Respectfully Submitted, A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation BUILDER AGREEMENT AGREEMENT made this Z3 E2 day of Z_ , 1g9-7, between QUALITY BUILDS RS WARR TY CORPORATION, a Pennsylvania corporation, herein referred to as 'QBW,' and ?i95Tiuoaa ?ST. .? c . Name of Builder: (indicate whether a corporation, partnership, individual or other) Of Address Z?57 lil/?STOarn-/2>,b C ?1?l?rtar?- ?G ZSZO$ herein referred to as 'Builder.' State zip SECTION A. MEMBERSHIP AND TERM: 1. QBW administers a program whereby home builders registered with QBW enroll homes they construct in the program and purchasers of those homes are protected by a warranty against certain specified defects. 2. In order to develop and maintain a good reputation for providing protection to purchasers of well-built homes, QBW protects and promotes its good-will by careful selection of builders to participate in its warranty program. 3. Builder desires to participate in QBW's warranty program and, to that end, agrees to abide by the provisions of this Agreement and to conform its behavior to the standards expressed herein and in the Limited Warranty Agreement. Builder warrants that all information supplied to QBW in connection with its application is true and correct. 4. All registration fees (initial and annual rescreening) are set by QBW at its discretion and are non-refundable. 5. QBW, upon executing this Agreement, has accepted Builder as a member of its warranty program, subject to the Builder's continuing performance of its obligation under this Agreement. 6. Builder's membership shall commence on the date of Execution by QBW and shall continue until terminated by either party in accordance with the terms of this agreement. QBW reserves the right to rescreen Builder annually. If QBW determines that Builder does not meet its approval standards upon rescreening then QBW may terminate Builder's membership and the provisions of Section B, paragraph 6, shall be in effect. SECTION B. HOME ENROLLMENT: 1. Requirements. As part of its participation in QBW's warranty program, subject to QBW's acceptance, Builder agrees to enroll in the program every home, Builder, Builder's Principals, or any entity under Builder's, or Builder's Principals common control constructs in any state in which QBW operates and agrees to pay all fees required by QBW in the enrollment process, which fees shall be non-refundable. 2. Procedures. Builder agrees to enroll its homes according to procedures established by QBW. Builder may enroll homes currently under construction and homes completed but not sold or occupied (as of the date of this Agreement or the date of reacceptance following a period of suspension or non-participation) provided that enrollment is made within 45 days of execution of this Agreement or reacceptance, and QBW has inspected and approved the home. When enrolling other than a detached single family dwelling, Builder shall enroll each individual unit of any multi- unit dwelling such as but not limited to duplexes, townhouses and condominiums. For each home enrolled, the Builder shall pay a warranty fee as determined by QBW within the time periods estab- lished by QBW. All warranty fees are non-refundable. A minimum warranty fee of $100.00 shall apply. QBW will provide Builder with a copy of the Limited Warranty Agreement and Enrollment form. Builder and pur- chaser must complete, sign the Agreement and Enrollment Form at closing, and Builder agrees to furnish QBW with a copy of the signed Enrollment form within ten (10) days of closing. Builder agrees not to charge the purchaser direct- ly the cost of the enrollment fee. A home will not be considered enrolled until QBW receives and approves the fully exe- cuted and completed Enrollment Form, payment of all fees, and an approved final inspection. 3. Reservation of Power of Review. QBW reserves the right to reject any home submitted for enrollment in the program if (a) the Builder is not a member in good standing; (b) the home is not constructed in accordance with the Warranty Standards or building codes specified in the Limited Warranty Agreement; (c) the Builder did not observe the enroll- ment procedures; (d) misstates or misrepresents any information; (e) in any way fails to comply with the terms of this Agreement. 4. Assignment of Rights. If a purchaser files a Complaint pursuant to the Limited Warranty Agreement which the Builder fails to correct, the Builder hereby assigns to QBW or its insurer, as the case may be, any rights which Builder may have against a supplier, manufacturer, subcontractor or other person for work performed or materials supplied in con- nection with that claim. Builder agrees to cooperate fully with QBW and to provide QBW with all information which it requests pertaining to the claim. if Builder fails to so cooperate, Builder agrees to compensate and indemnify QBW for any damages sustained by such lack of cooperation . 5. Breach and Remedy. If Builder fails to enroll any eligible home as required by this Agreement, QBW.may seek specif- ic enforcement or other appropriate relief in legal or equitable proceedings, even if this Agreement has been termi- nated. Furthermore, Builder agrees to indemnify and hold harmless QBW and its insurer for any losses or any dam- ages QBW may suffer as a result of Builder's breach of this Agreement and such losses and costs shall include reasonable attorney's fees and expert witness fees. Builder hereby irrevocably authorizes and empowers any attorney or any court of record of Pennsylvania or else- where to appear for and confess judgment against Builder for all amounts for which Builder may become liable to QBW EXMBTT I for the breach of this Agreement, as evidenced by an affidavit signed by an officer of QBW setting forth the amounts then due, plus attorney's fees incurred by QBW, with costs of suit and release of errors. Such authority shall not be exhausted by any one exercise thereof but judgment may be confessed as aforesaid from time to time as often as there is a default. Remedies stated herein are elective and not exclusive and QBW may elect to proceed under this or any other paragraph in this Agreement. 6. Suspension or Termination. QBW may terminate, or at its option suspend, Builder's participation in QBW's Warranty Program, or any entity or individual which Builder is affiliated, if QBW determines that Builder has done any of the fol- lowing, which shall be deemed a breach of this Agreement. (a) fails to comply fully with all provisions of this Agreement; (b) fails to perform any of its obligations under this Agreement, including, but not limited to, cooperating in the opera- tion of the program's informal dispute resolution and arbitration procedure; (c) fails to respond to QBW's notice of a homeowner's complaint; (d) fails to comply with a decision which is rendered pursuant to complaint procedures; (e) fails to provide adequate assurance to QBW within ten (10) days after it receives a written request from QBW for such assurance that (within a reasonable timetable established or approved by QBW) it is willing and able to coop- erate in dispute settlement and to perform the obligations under any decision which is rendered pursuant to such procedures; (f) fails to otherwise cooperate in the operation of the QBW Program in accordance with the rules and regulations of the QBW Program; (g) fails to provide timely proof of compliance with this Agreement, as and when requested by QBW; (h) fails to comply with QBW Warranty Standards and building codes as stated in the Limited Warranty Agreement; (i) fails to comply with the enrollment procedures established by QBW; (j) fails to provide proof that enrolled homes have been subjected to required inspections; (k) fails to respond to purchaser complaints in a timely manner and as provided in the Limited Warranty Agreement; (1) fails to perform its obligations with professional competence or conduct its operations from a position of financial strength and stability; (m) fails to notify QBW within 30 days of a change in ownership, company name or company standing, financial con- dition, or of any other material fact which might affect Builder's ability to meet its obligations under this Agreement; (n) fails to meet ethical standards in its dealings with customers; or (o) misstates or misrepresents any information in connection with its application or in the rescreening process. QBW reserves the option to reinstate terminated affiliates of the primary, terminated Builder if QBW determines that the terminated Builder or its principals are not in a position to control the affiliated Builder. Termination of Builder by QBW shall not affect the rights or obligations of any of the parties to this Agreement with respect to the Warranty Program in effect at the date of termination, subject to the provisions pertaining to voidability. If a Builder is suspended or terminated, he shall not represent himself to be a member of the QBW Warranty Program nor offer the QBW Warranty and shall not use its Logo or refer to the program in any way nor attempt to enroll any home. The Builder shall immediately notify any Buyer currently under contract to purchase a home of the suspen- sion or termination and that the QBW Warranty Program has been withdrawn. Upon request, Builder shall immediate- ly return to QBW all materials supplied by QBW and all material making reference to QBW. Should Builder fail to take these steps, it shall indemnify and hold harmless QBW and the insurer against any and all expenses incurred and loss- es suffered, including. but not limited to attorney fees, by either of them as a result. In addition, Builder shall pay inter- est to QBW at the rate of 18% per annum on all sums due to QBW hereunder if such sums are not paid within 30 days of demand by QBW. Builder may terminate this Agreement upon 30 days advance written notice to QBW. If so terminated by Builder or by QBW, Builder's obligations under this Agreement shall continue as to those homes enrolled during the period in which this Agreement was in effect. 7. Notice. If QBW possesses a reasonable belief that reason exists to terminate or suspend a Builder for violation of this Agreement, QBW may immediately terminate or suspend the Builder by providing it with written notice. If QBW elects to suspend the Builder, such suspension will remain in effect until Builder has cured all defects to QBW's satisfaction, however, QBW reserves the right to terminate any suspended Builder. 8. Voidability. QBW reserves the right to void any enrollment if Builder misstates or misrepresents any information in its application or in the rescreening process or misstates or misrepresents any information in the enrollment of a particu- lar home or fails to pay any fees due for enrollment of any particular home or fails to forward an enrollment form for a particular home within 10 days as required. SECTION C. BUILDER'S OBLIGATIONS: 1. Construction Obligations. Following are the Builder's obligations with respect to QBW's Warranty Program: (a) Builder shall construct all homes in conformity with the Warranty Standards provided in the Limited Warranty Agreement, and/ or in conformity with approved building codes and other standards established by QBW and in effect at the beginning of construction of the enrolled home. QBW reserves the rights to establish special require- ments for escrow payments or other means of protection with respect to any homes constructed by Builder which QBW determines to be "High Risks." (b) Builder agrees to have all homes inspected,-as required by QBW, and to pay all fees for the inspection and to pro- vide evidence of inspection as and when required by QBW. QBW shall provide inspectors or shall approve gov- ernmental inspectors. (c) QBW shall have the right to pc, rorm spot inspections to verify Builder's coy „pliance with this Agreement and Builder agrees to cooperate. (d) The Builder agrees to indemnify and hold harmless QBW and/or its Insurer for any losses or damages QBW and/or its Insurer may suffer as a result of the use of fire retardant treated plywood on any building enrolled under the QBW Ten Year Warranty Program. This will include all claims and liability for losses, damages and expenses which QBW and/or its Insurer may sustain, incur, pay or be liable for by means of any investigation settlement or litigation of any claim or action which may be raised, made or brought due to the potential defects caused or likely to be caused by use of the subject plywood. (e) If the Builder is informed by QBW that it is building'in an area designated as one with active soil conditions, the Builder agrees to obtain such soils investigations and reports as may be required by QBW. If such reports indicate a need for special foundation design the Builder agrees to construct the foundation according to the design of a registered professional engineer to take into account the conditions disclosed by the soil tests. 2. Warranty Obligations. Builder agrees to perform all obligations arising from this Agreement and the Limited Warranty Agreement. The Builder shall at its own expense perform all obligations as set forth in the QBW Warranty Program and this Agreement which includes meeting the warranty standards upon notice from the Purchaser without the necessity of QBW intervention. If Builder fails or refuses to perform its obligations in accordance with the Limited Warranty Agreement, QBW will perform those obligations; however, Builder agrees to reimburse OBW and/or its insurer for all expenses incurred in performing those obligations, including, but not limited to costs of materials, cost of collection, labor, architect's fees,. engineering fees, and attorney's fees. QBW reserves all rights of subrogation. If the Builder repairs a major structural defect during year 1 or 2, QBW must be notified. Once notified, QBW will perform a compliance inspection. QBW agrees to perform its obligations pursuant to the Limited Warranty Agreement in years three through ten pro- vided that the defect that is the subject of the Purchaser's claim did not occur within the first two years and was not concealed or cosmetically or improperly repaired by the Builder during those two years. Builder is not responsible for any damage caused by a major structural defect, as defined in the Limited Warranty Agreement, occurring after the expiration.of the first two years of the Limited Warranty Agreement provided the defect was not concealed or cosmetically or improperly repaired during those two years. QBW will hold the Builder harmless for the reasonable cost of repairing or replacing such defects, and against the payment of any money judgment, order or decrees made against Builder for the repair of the defect. 3. Builder is authorized to advertise its membership in the QBW Warranty Program and to use its Logo in its business, pro- vided that any reference to QBW or its insurer, whether contractual or advertising copy, be approved by QBW in writ- ing in advance of its use. SECTION D. INFORMAL DISPUTE PROCEDURE: 1. Builder should be aware that the Limited Warranty Agreement provides for an informal dispute settlement and arbitra- tion procedure to resolve complaints by purchasers under the Limited Warranty Agreement. Builder should become familiar with the settlement procedures in order to be aware of its rights and responsibilities. Builder agrees to coop- erate fully in the procedure and to be bound by and to comply with any decision of an independent third party, or arbi- trator. If the Builder fails to perform its obligations hereunder in a timely and good and workmanlike manners such fail- ure shall be considered to be a refusal to perform governed by paragraph C.2 hereof. 2. The Builder agrees to pay all fees charged in connection with the informal dispute settlement and arbitration proce- dures. SECTION E. TERMS GOVERNING OPERATION AND INTERPRETATION: 1. Builder agrees to perform its obligations under this Agreement in a timely manner. However, time provided for perfor- mance of obligations hereunder shall be extended by events not subject to control by the person obligated to perform. Such events include acts of God or the public enemy, or, riot, civil commotion or governmental conduct. 2. Descriptive headings as to the contents of particular provisions of this Agreement are intended for convenience only and are not to be considered in construing this instrument. 3. This Agreement shall not constitute or be considered an agency, employer-employee relationship, joint venture or part- nership between the parties. None of the parties, nor any of their employees or agents, shall have the authority to bind or obligate the other party except as provided by this Agreement. 4. Should any provisions of this Agreement be determined by a court of competent jurisdiction to be unenforceable, that determination will not affect the validity of the remaining provisions. 5. This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder hereby consents to the personal jurisdiction of the Pennsylvania courts. For Builders who are licensed in the state of New Jersey, note that this agreement shall be interpreted and enforced in accordance with the laws of New Jersey; for all homes enrolled with an address in New Jersey. 6. Builder shall not assign this Agreement without the prior written consent of QBW. 7. This Agreement shall insure to the benefit of and be binding upon the heirs, executors, administrators, assignee, and successors of the representative parties. 8. This instrument, and security documents and documents referred to or incorporated herein by reference, contains the entire agreement between the parties, and no statement, promises, or inducements made by either party or agent of either party that is not contained in this written contract shall be valid or binding; and this contract may not be enlarged, modified, or altered except in writing signed by the parties and endorsed hereon. 9. Failure of either party to insist upon compliance with any provision of this Agreement shall not constitute a waiver of that provision. 10. All notices required hereunder must be in writing and sent by certified mail, postage prepaid, return receipt request- ed, to the recipient at the respective address shown below, or to whatever address the party may designate in writing. 11. The effective date of this Agreement shall be the date of execution by QBW. QUALITY BUILDERS WARRANTY CORPORATION By Joseph M. IQ'lsftit President Date of execution by QBW: I f July 1, 1997 Builder's Registration No.: 60271 BUILDER. G/?STGcJOov ??cJST. Cp. ?..NG. (Name of Builder - please print or type) Copyright 1988 QBW FORM 050 3/95 Quality Builders Warranty Corporation ??lCv WESTiJtO/r6Z/fsV,Q ?? U, l6 f?ld?;i . (Please print nameltitle of executor) f /4> (Address) May-15-03 16:00 From- T-824 P.002/002 F-768 (0()J-1 MAENDl?+ ENT TO BUILDER AGREEMENT This Amendment, is behveen Quality Builders Warranty Corporation (QBW) aiid EASTWOOD CONSTRUCTION CO., INC., referred to as "Builder". Binder is a member in the QBW 10 Year Limited Warranty Program. QBW and Builder desire to modify the term of the Builder Agreement, QBW and Builder, in exchange for the mutual covenants contained herein and intending to be legally bound hereby agree as follows: 1. Builder shall maintain its membership in QBW's Limited Warranty Program for an additional period of throe (3) years to commence upon the below date and submit for emrolhnent homes which Builder or any affiliate constructs during that time. Buildcr may not terminate his participation in the QBW Program within that period unless consented to by QBW-in writing. 2. Builder's rate will be lowered to $1.15 per thousand. The rate will remain in effect for the period of this Amendment. The Amendment tivill renew for a like term unless thirty (30) days prior to die expiratiota of this term or any extensions dither party provides the other thirty (30) days advance written notice that they intend not to extend the period entitling the Builder to a lower rate. If Builder provides notice, QBW will adjust the Builder's rate upwardleffective at the end of the then current term. 3. If in the unforeseen event of a rate increase, caused by Legislation, or situations beyond the control of QBW, Builder has the right to terminate participation. a. Jf the terms contained in this Amendment are inconsistent with the Builder Agreement, the terms of this Amendment shall govern. 1N WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers, as of this 15ei day of May, 2003. QUALITY BUILDERS WARRANTY CORD, EASTWOOD CONSTRUCTION Co., INC, B EX HI BIT 2 Tr1TCN P n EASTWOOD H O M E 5 Homebuilder of Integrity November 1, 2010 VIA FEDERAL EXPRESS AND REGULAR MAIL Quality Builders Warranty Corporation 325 North Second Street Wormleysburg, PA 17043 0 Y 0 2010 Re: Termination of Builder Agreement with Eastwood Homes, Inc. and Eastwood Construction, LLC f/k/a Eastwood Construction Co., Inc. Dear QBW: CORPORATE DIVISION 2857 Westport Road Charlotte, NC 28208 Phone: 704-3994663 Fax: 704-399-1127 Please accept this correspondence as terminating the Builder Agreement as between Eastwood Homes, Inc., Eastwood Construction, LLC f/ka/ Eastwood Construction Co., Inc. ("Eastwood") and Quality Builders Warranty Corporation (QBW) effective December 31, 2010. In accordance with the contract, Eastwood is terminating this agreement by providing more than thirty (30) days advance notice. We will stop enrolling new construction starts which take place after December 1, 2010 in the QBW Warranty Program. During our transition to a new warranty provider we anticipate a need to coordinate between our companies, particularly involving addressing warranties where Eastwood has paid for enrollments but where houses will not finish or be sold by December 31, 2010. We have identified Justin Myers, Vice President of Corporate Operations, and Allen Nason, General Counsel, as Eastwood's agents for facilitating a transition which is as smooth as possible. Thank you for your anticipated cooperation. Cc: Justin Myers J. Clark Stewart 5cer 'ely Allen N on General Counsel EXHIBIT 3 QUALM Mu... ERS WARRANTY CORPO-. JOLT 13UILDER AGREEMENT AGREEMENT made this ?5' ? day af, V,/-- - .20 C)S" >etwean QUALITY SUIWERS WARRANTY CORPORATION, a Pennsylvania Torpor-atlon, herein referred to as "OBW", Nomti of 8ulld r, jF,zt'v> tr6lNliF o. ?rporatfofi''pm rtc Wldupl or other o ......, wr_ _? PV _% ' i:7f• n4 7"r1 ' - i•' `',•,'I .i`ri'.'`' rein referred to as "Builder". --- µ. ,;,S:K.,•J;; : ''.,.',i`...rSWb? Y.e^:4?Ih`i. ??j??1::'(r*?y??la"•I tyre sag SC MiJ•''. `.?'?' ".?r.,:,?'~•?; y??:,.L(„?.,F_'h:},:tif". vy ?•t''1,!.???JI• k '. .? •, ' CTION A. Mt llll8 SHiP'ANa:YERM. 1, QHW adminl a program wharebry"etigme •buil' s e ' sfa d?iiw QRtZV:'ec? olf am ' ey`ca std , the program and purchasers noise honies;am protected' SIP co ed? e a ' ?n?ld o dM• ash ?ofiWe? ?but?,?? QI3W protects 2. In order to; evelv0 an mainmin,a"good a I,^ • and pro o" es its good-,,kill by' tar o Se sEto„pa ;1,. a't, a' og IN t - ' 3. Bullde ?slres- to pal ki?fPate:. n prc?9!arn ?, ? =fix , -e .jam ' ?e jP v 5 ens of this Agra ent-and'to contoirn f d rdsiexp?e5aed 8 f? tr3?' G tyl?Agj t. Builder ro ; a? warrtts thataff fntocmatla' o ? iii fie: 4. N .aglstratfbn.fees (lnitf Tee t g???a?le? rat kty, QBVtfa?''?ts - tjan o e ati Q S, Q ?iV; .Qpan'ex6-C* utlhg. 'accepte'd Br iilder.l ? itra, ber?o !s'"?vva ?l a• a 1lders •L ,.• ,vl ?At•,'i ?e ,»w,Y •t ? e.';4!r' •I ?K't?f ??.,• , v M t7ntilni? erfo a iYdHr:?(StAgi+aerirle/L??r»i don M_ r?' • ? '45h'1 c? ' ?. , u,!. f ? :rr,l. H1i ,I: T• • 41 I, T'AU `{ ? w.•?!.J 1•,I••- ? I ?7J 8. ElDlider"s -emliersl'? t:o ien!therda_fetic t ed?tton?b. ?QBt?l l?al a warty r ?, m {•, •11 ?•. .. :.?. r ?M?? rr' ?, J •IK.' •? a "4I de ' nos accordance1, 4ikh a L' grsem?r??1 ?QBW cese?r?//BS'Ftha ?i?yhtl?o ??sr?;e B ' 1 . ;L r• Y ui •r A•Jfp..-?,p: i• aS..rar the t Bu(idel: die - t v p fA? ?s a s s!upop BSCreening;t is ClB. ' r l a a red p. O`"?'S''ta• IbvF? SBIIG4?': :JU'',,`?'.. '7J..SJ{?y. •. Y' I 4 N .Y 'rQV'lslans:ofSack1 T,*+ ..??,:PS','.?°i»'.,r..??.??a4„?,,?;p111+:1?4}ii`?1?Y??1'Y •?.. •,? /? °p',tl?,jS? • w??1 ' /? S CTIONU ?^ 11?•yy ? ?j?, ?• '?;.• .•... r 1? '?}L Y".'?.?,91, ? ?,. ?': 'pL;i ??i? . , 4 '.. f- fin 1J I.. L tlM:'Mx j:'? " ? r 7 ter 1? ?w ? 'l 7. f7equirerrteilts: ! atlon' lift V1!'s'? rrar jl rag mr. Sup a t4 [ 9 er' gree, to g_ t + 1 :roll Iii ;thy • t er Bid Ike 'Prlnc?P.,a? ;#vh, _ WS ° a f w? a P an ari#iiolyb n5 WAORes 9 a '' P,i ?.? B Q? ant rort'<ssiWhictkf' _ o da?l+rl `'?'I°r't?`?"."?•I ?r ? 1 1 2. prgcei#?{r?'s?•Bu?. 11 ,•"E?gevr?ard RtgtfQH" rgcQduj'Y8s i ' b(? $ - S 8 GQ eS rTerjZlj(iedeco ca pjeCedihUoC?spt,or t?cc (ed`.af c? '? site ri ?o x to of • „?. +P ,,Ji ? aM?U ? . ?•?pr?T -vr.AN"*?.:? ? ,- r ,•...?.I.+t•r• ?? dl' ''' Af r n .t)cg nU his s sle;n?or-'no c pa r? vldhd.lz1{,,?a a. 4 •!?.. _...,_ p:-..T'.e .. . ,R .T71•'l,,i,4: w.-'!+;"',i1..M''•'??!','r•[,'.?5?•;r:H:R.:+r..'7? - t- -- 'Y . fruUn "' c ci iicti ATtFa t''d" odi J"Mai esx li '4 pe err a QPLi fat ??' oc;oupa y _ as a mad wgi-0ielvrer.•'fs'aa'ril r?. P t e 2irrd t v e r d portion of th r htl?ra'?}acnatI 1 ? a S y rt[r "di"'. r `nretl ( y'trrhan "e gweti? ?Bct?l a dvt Ua 4 G ny mind-unit dwelling tlch'T fbut?jvt"Ilm?ied tb+4 ' r `QJjccyPd4• n'1'I' { bee t ( a the direction. ?,way„? 1 JJ.1 . ns:' ; ^r r ^• ' ?{?8r J r} ri r of qS'W, t3Ullder?aQrreie's..?Otenrl??i?n??re f?ter?ltaf?at o r1or a dfi' to ? ttrniled° It `e H{?i ti" ?f5 a ^?SI d •5 he time periods ?A. •S.J ? io°i "i 'irh yy±.\ „`i P' f: •M1. ? .+ (?.•{?,, ?s,w•F ??Yr ??• estabtlshod bye SAltvvees?a,e' t ,?non, 6fcln' a?mr;ii+jwhr J,?og ap Y. v . r; n r L: rT,. •?•-, •rn 1 r l . a'1 arc , k QBW will tie' Bulider?, ?,r?j(jCtia.L(kn t ti 111Jarran reerrte 1 ••?ul etxr?? E]Older and purchaser p 'I,rr14''i`? f 17.MMI•I C•.. J U,.il, YH S?,7rw.,nt.rU 'f J must complete all w,tiie M a j erlnt o tYrlos?yng ?a(x bB lid'err; g M9 j Q? a copy of the signed Enrollment 1?glrm wtlh h C !(?,t7 + fa 'o(l t'Jo jtg;; 8i'I'7d`s"iYagres ,gl [oji%6,?ef kic lpu ' dlrect(jt t'orrtithe cost of h enrollment fee. A !lame vVill?r?o e?cnnsace )snrd lec J( ?] QBWkFereivbs!ke appfo 43 a Ily exacutednd completed Enrollment corm, payment of all sIif!cJralti ?pprtoved n481K(?i5 ?ectfori?,? 3- Reservation of Power of Rov m lew_ Q?11al re i':v?a?s ?t?Fie{ ?ghk ;ante ec aCYG }Yg +brP d o a ?llent In the prbgmrn If (a) the Builder Is not a member in good standing (b) :e ,o gt ari$knNckad (nacxo a c? thltb9 Warranty Standards or building odes specified In the Umlted Warranty J4grearri4nt: (c} the Builder dldfriot obse . )h r ent procedures; (d) they builder misstates or misrsprr?senis any information; (e) the (3ullder in any v? ' • ?I(s cam • ? ?`?Y,QQI the terms of this Agreement 4_ Assignment of R; hts. If a purchaser flies a Complaint pursuant to the Llmlted Warran A re8 on `the Builder falls g 9 ;Pfi to correct, the Builder hereby assigns to C 18W or Its Insurer, as the case may be, any rights which Builder may have against a suppiler, manufacturer, subcontractor or other person for work performed or materials supplied In connection with that .(alm. Solider agrees to cooperate fully with QBW and to provlde QSW with all Information which It retluosts pertaining to the claim, if Builder falls to so cooperate, Builder agrees to compensate and• indemnify QBW for any dsmages sustained by such lack of cooperatlon. 5. Breach and Romedy. If laultder fails to enroll any eligible home as required by this Agreament, (LBW may seek specific onforcoment or other apprcprlato relief in legal or equitable pro&e6dings, even if this Agreement has been terminated. 7n 'd tS:LI SOOZ 9 380 EX MiT4 and its insuter for ar, . or darnage5 they may Furthermore, Builder egrMi to Indehtnlfy mentnand such losses and costs shat, VsSee reasonable attorriey'S tees suffer as a result of Builder's brearrh flf th« r . of P anns and expert witness fees. any cou herO Builder hereby Irrevocably autttorizes a d empowers far al amounts lvrowhloh BU?deCrmaY become Skablento c?BvV® r the to appear for and confess judgment against I3ullde and rely se of an officer of QSW setting forth the amounts then due, plus errors, Suoh ouftrrity shall not bo exhausted by any one breach this Agreement, as e, wit ed by an attamey' s fens Inc..; red by QBW1N, with costs of s CIBW time as. often as th6r? Is.-a may elect to proceed default, exerchereof Judgment ate e and not exclusive and time to Remedies this or any other stated ed herein re elective in this Agreement. Suspension or Tormination. QBW may terminate, or at Its option, suspend Builder's participation In QBW`s Warranty Program, or any entity or individual wlthlB 11 *affiliated, It QBW determines ihet,Builder has done any of the following, which shall be deemed a breach of this A9eemen (a) fails to comply fully with any provision of this Agreement, (b} fails to perform any of Its obligations Under this Agreement, Including, but not limited to, cooperating in the operatldn of the program's Informal dispute resolution and arb P (c) falls to respond to QRW's notice of a homeownses complaint,, (d) falls to comply with a decision which is rendered pursuant to complaint procedures; (e) falls to provide adequate assurance to 08W within ten (1A) days after It recelves a written request from 08W for such Is willing and la to assurance that (within a reasonable the timetable obligations undies ay decision vvvhich isQra dergd pursuant to saubch pros d msQ In dispute settlement and to perform 9adon5 (f) fails to otherwise cooperate in the operatiah of the QNW Program In accordance with the rules and regulations o the QRW Program; (g) fails to provide timely proof of compliance with this Agreement, as and when requested by QBA (h) falls to comply with QBW Warranty Standards and building codes as stated in the Limited Warranty Agreement; fails to comply with the enrollment procedures established by QBW; Q) fails to provide proof that enrolled homes have been subjected to required Inspections; from a position offinancial (I) fails to respond to pu hakohl complaints professional competence or conduct the Limited Warranty (l)} fails to perform its obligations strength and stability; (rn)ftlis to notify C16W within 30 duys of mf htaffect ?uIn ownership, company name or llder's ability to meet its obligations und8ry thisstanAgreemending, IaI condition. or of any other material fact which '3 (n) falls to meet ethical standards in its dealings with customers-, or application or In the rescreening process. (o) misstates or misrepresents any Information In connection with Its app terminated Builder If QBW determines that QBW reserves the option to reinstate terminated affiliates of the primary, the terminated Builder or Its principals are not in a position to control the aMilated Builder. Termination of Builder by QBW shall not affect the rights or obligations of any of the parties to this Agreement with respect to the Warranty program in affect at the date of termination, subject to the provisions pertaining to voldabllity. If a Builder Is suspended or terminated, he shall not reprasent himself to be a member of the QBW Warranty Program nor offer the QBW Warranty and shall not use its Logo or refer to the program in any way nor attempt to enroll any hone. The Builder shall immediately notify any Buyer eurr+ently under contract to purchase a home of the suspension or tenmination and that the QBW Warranty Program has been withdrawn, upon -request, Builder shall Immediately return to COW all materials supplied by QBW and all materials making reference to Q13W,.Should Suflderfail to take these steps, It shall Indemnify and hold harmless QBW and the insurer against " and all expenses Incurred and Losses 48w trad, Including but not limited to attorney fees, by either of them as a result. In addition, Builder shall pay Interest to rate of 16% per annum on all sums due to QBW hereunder if such sums are not paid within 30 days of demand by QBW. Builder may terminate this Agreement upon 30 days advarice written notice to QBW. If so terminated by Builder or by QBW. Builders obligations under this Agreement shall cantlnua as to those homes enrolled during the perlod In which this Agreement was In effect. T. Notice If QBW possesses a reasonable belief that reason sAsts to terminate or suspend a Builder for violation of this written not cured is l defeats toi QBW' Bsatisfaction, - If Agreement, QBWsuch suspension nwlail main In effect u Builder by providing It suspend the Builder. however, Q13W reserves the right to terminate any suspended Builder. , 3. Veidabllity, QSW reserves the right to void any enrollment If guilder misstates or mssrepresenta any Information In Its application or in the rescreening process or misstates or misrepresents any infartnatlon in the enrollment of a pedlMar home or fails to pay any fees due for enrollment of any particular` home ae fails to fofward an Bhrollment Form for a particular home within 10 days as required, or falls to enroll all units of a multi-unit building. SECTION Q. SUIL PE S OBLIGAMONS: 1_ Construction Obfigartions- Fblkmdng are time Builder's obligations with respect to OBWs Warranty Program: (a) Builder shall const=t all homes in conformity with the Warranty Standards provided in the Limited Warranty Agreement, and/or In confomlity with approved building codes end Other standards established by t']l3W and In effect at they beglrining of roratruction of the enrolled home. QBW reserves the right to establish special requirements for escrow payments or other means of protection with respect {n any homes constructed by Builder wwc:h Q$W detrrmines to be .High Risks". EO'd 85:L1 5002 8 080 3. (t) Builder agrees to have ail homes ins -d, os required by 08W, and to pay all fr for the Inspection and to provide evidonce of inspection as and when red by 08W. QBW shall provide InspaL 'r shall approve governmental Inspectors. (c) QSW shall have the right to perform spot Inspections to verify 8ulldees oompllance with this Agreement and Builder agrees to cooperate. (d) The Builder agrees to Indemnify and hold harmless QBW and/or Its Insurer for any losses or damages QBW andlor ILs Insurer may suffer as a result of the use of fire retardant treated plywood on any. building enrolled under the QBW Ton Year Warranty Program. This will include all claims and liability for losses, damages and expenses which QBW and/or its insurer may sustain, incur, pay or be liable for by means of any Investigation settlement or litigation of any claim or action which may be raised, made or brought due to the potential defects rauaed or likely to be caused by use of the suhJect plywood. (e) if the Builder Is Informed by Q13W that it Is building In an area designated as one with active soil crnditions, the Builder agrees to obtain such soils Investigations and reports as may be required by QBW. If such reports indicate a need for special foundation design the Builder agrees to construct the foundetlon a=rding to the design of a registered professional engineer to take Into account the conditions disclosed by the soil tests, Warranty Obligations. Builder agrees to perform all obligations arising from this Agreement and the I,Imltgd Warranty Agreement, The Builder shall at Its own expense perform all obligations as set forth In the QBW Warranty Program and this Agreement which Indudes meeting the warranty standards upon notice from the Purchaser without the necasslly of QBW Intervention. During years one and two under tl'tet QBVV tiVarranty Program, if the Builder fails or refuses to perform Its obligations in accordance with the Limited Warranty Agreement or this Agreement, QHW will perform the Builder's obligations, however. the Builder agrees to reimburse QBW and/or Insurer for all expenses Incurred In performing their obligations, Including but not limited to, cost of materials, Cyst of collection, labor, arehttect's fees, engineering fees and counsel fees. QBW and/or Insurer reserve all rights of subrogation. During years three through ten under the QBW Warranty Program, 05W will perform its obligations with respect, to major structural defects as set forth and defined In the Limited warranty Agreement without the right of subrogation against the Sulfder provided that the defect, or symptoms of the subsequent occurrence of the defect, first arose after the expiration of two years under the QBW Warranty Program In affect for that home, and that Builder did not attempt to conceal or ccelly repair the defect r symptoms of ccable subsequent sty doccurrence of a ams or adheredto Builder's does not arlse frDm the Bunder Buildaruildoe's'failure to construct the e home to sop Agreement If the Builder repairs a major structural defect during years one or two, QBW must be notified. Once notified. OBW will perform a compilancs inspection. 8ulkter Is authortxed to advertise Its membership in the QBW Warranty Program and to use Its Lngo in Its business, provided that any reference to QBW or its insurer, whether tontractual or advertising copy, be approved by Q13W In writing in advance of Its use. 58CTION D_ INVORMAi- DISPUTE PROcEDURE:. , • : • . t. Builder should be aware that the Limited Warranty Agreement provides for an informal dispute settlement and arbitration procedure to resolve complaints by purchasers under the Limned Warranty Agreement. Builder should become.faimillarwith the settlement proxedures in order to be awane of its rights and responsibilities. Builder agrees to cooperate fully In the procedure and to be bound by and to comply with any decision of an independent third party, or arbitrator. If the Builder falls to perform its obligations hereunder in a timely and good and workmanlike manner, such failure shall be considered to be a refusal to perform governed by paragraph C.2 hereof. . The Builder agrees to pay all fees charged In canneetlon with the informal dispute settlement and arbitration procedures, SECTION F-'tERMS GOVERNING OF51RATION AND INTERPRETATON= 'i. Builder agrees to perform its obligations under this Agreement In a timely manner. However, time provided for performance of obligations hereunder shall be extended by events not subject to control by the person obligated to perform, Such events include acts of God, or the public eCmenty, or riot, civil commotion, or governmental conduct 2. Descriptive headings as to the contents of particular provisions of this Agreement are intended for convenience nniy and are not to be considered In construing this instrument. 3. This Agreement shall not constltute or be considered an agency, employer employee relationship. joint venture or partnership between the parties. None of the partlets, nor any of their employees or agents, shall have the authatily to bind or obligates the other party except as provided by this Agreement. 4. Should any provisions of this Agreement be determined by a court of competent jurisdlction to be unenforceable,* that determination wlif not affecrthe validity of the remaining provisions, 5. This Agreement shall,be Interpreted and ermforc*d in accordance with the laws of the Commonwealth of Pennsylvania, At suits instituted under this Agreement shall be brought in Pannsylvahla In a court of competent jurtsdlclon, Builder hereby conscrnts to the personal jurisdfctivn of the Pennsylvania courts. 6. Builder shalt not assign this Agreement without the prior written consent of QBW, 7. This Agreement shall Inure to the benefit of and bo binding upon the hells, executors, administrators, wslgnee, and successors of the representative parties, 8. This Instrument, and security documents and documents referred to or incorporated herein by reference, contain the entire tr0'd 89:Lt 9002 8 080 agreement between the parties, and n meat, promises, or inducements made ' "tier party or agent Qf either party that is not contained Jr, fts wrltlen contr.,,. shalt be valid or binding; and this Cantr81, I riot be enlarged, rmodined, or altered excopt in writing signed by the parlles and endorsed hereon. 9, f:allure of either party to Insist upon compliance with any provision of this Agreement shall not constitute r7 waiver of that provision. 10. All notices required hereunder must be in writing and sent by cdMfled mail, postage prep;ild, return receipt requested, to the recipient at the respective address Indicated on the front, or to whatever address the party may designate In writing. 11. The effoctlve date of this Agreement shall be the date of oxacutlon. by QBW. )BUILT ERS WAWtANT'X' CoIEtI[ ()RATION I AL A l 0 6. By Date of execution by QBifY 12-13-2005 Builder's Registratlon No. 17052 BUtLj3FR Eastwood faumes, Inc .aY--_ -t Out W..r ? nrneen nAht or wDel Da' By (at,%PXQ print narrwlntlo of axocutor) +- Sigh Here ADDENDUM In consideration for receiving a reduced rate, Builder agrees to maintain its' membership in the Q9W program for period of 3 years to commence on the date this addendum Is exmuled by Q$W, Dullder agrees to submit for enrollment all homes which Builder or any affiliate constructs during this termm and any extensions. In exchange. Bulldees rate will be $ Y_ls 1per thousand. The addendum will renew for like terms unless (30) days prior to the expiraltldn of the term, or any extensions; either party provides the other (30) days advance wrlden notice that they intend not to extend the period entitling the builder to a lower rate. If Builder provides notice, QBW will adjust the guilders rate upward effective at the end of the then current tern. BUILDER ]Eas Od IRnMC5 o of BuRdor -. plggqs print ar type) Date ?? °? By Minneturn of Autttorl,wd RoproYarltAtlve -Tltla) (Prcdfla print rJartajetin of QX*r-Lltor) By Q ay BUMMERS Wf -?r 11138% __ 13-2005 Please note that In reviewing applicants for the QBW Program, certain costs are incurred, therefore all application fees are iron"refundab)e. 0 Copyright19DO Gunllty Rulldors WhW41MV carporadoa eRW FORM aso ms 90 'd 65 : L l 500Z 8 080 VERIFICATION I, CINDY SHELLEMAN, Controller of Quality Builders Warranty Corporation, hereby certify and state that the factual allegations in the foregoing Plaintiff's Complaint is true and correct to the best of my knowledge, information and belief; and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: Mu*A ber o4,.2o1 p Quality Builders Warranty Corporation By: Z Cindy Shelleman, Controller ,oit o t 5 PM 2= 39 ruM6 YL'A? ? TY P QUALITY BUILDERS WARRANTY CORPORATION Plaintiff V. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA DOCKET NO. 10-7008 EASTWOOD CONSTUCTION CO. INC AND EASTWOOD HOMES, INC. Defendants CIVIL ACTION AFFIDAVIT OF SERVICE BY MAIL On November 4, 2010, I mailed a true and correct copy of the Complaint by certified mail, return receipt requested to, Eastwood Homes, Inc., Article #7004 1350 0003 0402 9022, at their address. Eastwood Homes, Inc. received the Complaint on November 8, 2010, as indicated by the receipt attached hereto as Exhibit "A". I make these statements pursuant to 18 Pa.C.S. 4904 relating to unworn falsification to authorities and understand that false statements may be subject me to criminal penalties under that statute. J Pe rrison, Secretary R . ru w 0 Ir rLi t3 m O CerdW Fee O Fee R (End M Req?hW) M m Restricted Delivery Fee (Endoreernent Required) r-I O O P- ¦ Compote Items 1, 2, and 3. Also complete Item 4 If Restricted Delivery is desired. ¦ Print your tame and address on the reverse so that we can retum the card to you. ¦ Attach this card to the tack of the mailpieoe, or on the front If space permits. 1. Artkde Addressed to: &4t?? %"1.44 ?.L , A. Agent B. Received by Aanrej C. S D. ii-deliverymkTrmss d bm* from Item 1? ? Yes If YES, enter delivery address below: YWO 3. Service Type 13 Certtlisd Meg 0 Eqmn Mail O Registered a Return Receipt for Merchandise O Insured Mau C3 cam 4. PAWIdted De LWW Aft r** O lies 2. Article Number 7004 1350 0003 0402 9022 ( 'hoarssrvtos 9 PS Form 3811, Fewusry 2W4 Dorrreerllo Rettsn geceipt t EXHIBIT A r i° 01 THE rROTOiOTAR 2010 my 15 P 2' 40 0 pEft4SYLDVAN A T'i QUALITY BUILDERS WARRANTY IN THE COURT OF COMMON PLEAS CORPORATION CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DOCKET NO. 10-7008 EASTWOOD CONSTRUCTION CO. INC.: CIVIL ACTION AND EASTWOOD HOMES, INC. Defendants AFFIDAVIT OF SERVICE BY MAIL On November 4, 2010, I mailed a true and correct copy of the Complaint by certified mail, return receipt requested to, Eastwood Construction Co., Inc., Article #7004 1350 0003 0402 9015, at their address. Eastwood Construction Co., Inc. received the Complaint on November 8, 2010, as indicated by the receipt attached hereto as Exhibit «A„ I make these statements pursuant to 18 Pa.C.S. 4904 relating to unsworn falsification to authorities and understand that false statements may be subject me to criminal penalties under that statute. Pe rrison, Secretary t 0 ru O ?. db(1 \ -_ f- M CGTMW Fee • Weib Ln (E rrant uire j 18.00 ToW Postage & Fees 4i -- 0 am C3 &4411? OrPOBarN0. ,tl -,<nn}-?. _ ?----- ¦ Complete items 1, 2, and 3. Also complete Item 4 If Restricted Dellmy is desil ed. ¦ Print your name and address on the reverse so that we can reMm the card to you. ¦ Attach this card to the tack of the mallplece, or on the front If space permits. 1. Article Addressed to- ?C . a?ao8 -.14:1 A. Agent B. Reraived by ( Nlsrne) 11 C Delivery C-!r i - j2 ? 6Z44 0. Is ddWy address different from Item 1 T es If YES, eater delivery address below. /dY1""' 3. Service Type O Cwdkd Mal Cl 6rprses MMe 0 Registered 0 Reaan Rertsipt for Mere 0 hrerxed Me4 O C.O.D. 4. Resin W DeNvary? Ofty FoO p we 2. Ardde IWhnber (flanss?r+om aertAfo. Unep 7004 1350 0003 0402 9 015 PS Form 3611, Febttrary 2x04 Dorrreetlc Ream Heoelpt ?cesss oz ?rt tsao EXHIBIT A QUALITY BUILDERS WARRANTY CORPORATION . Plaintiff V. EASTWOOD CONSTRUCTION CO., INC., And EASTWOOD HOMES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA C-) C:: ., C ci Y° F-C -<> -< a- ?d r-2: CIVIL ACTION ©8 Q-n DOCKET NO. 10-7008 CIVI ;CC? -< au MOTION OF DEFENDANTS EASTWOOD CONSTRUCTION CO. INC. AND EASTWOOD HOMES, INC. TO EXTEND TIME TO RESPOND TO THE COMPLAINT Pursuant to Pa.R.C.P. 1003, Pa.R.C.P. 208. 1, and C.C.R.P. 208.3, Defendants Eastwood Construction Co., Inc. and Eastwood Homes, Inc. (collectively "Eastwood") respectfully request this Court to enter the attached Order extending the due date for Eastwood to answer or otherwise respond to the Complaint to December 29, 2010. In support thereof, Eastwood states: 1. Eastwood received the Complaint on November 8, 2010. 2. The undersigned counsel was retained on or about November 19, 2010 and had no prior knowledge or information about the allegations, transactions or occurrences referenced in the lawsuit. 3. Eastwood has its place of business in North Carolina and has made arrangements to meet with the undersigned counsel the first week in December. 4. Eastwood and its counsel require additional time in order to appropriately answer or otherwise respond to the Complaint's allegations. 5. No other extensions have been requested or granted. t (L0428177.1) 6. The additional time will afford Eastwood the opportunity to evaluate the claims and prepare an appropriate response consistent with the Rules and the efficient use of the Court's resources. 7. The Plaintiff will not concur in this Motion absent an agreement related to the parties' dispute to which defendants do not agree. 8. A proposed Order is attached. WHEREFORE, for the forgoing reasons, Eastwood respectfully requests this Court to enter its Order setting December 29, 2010, as the due date for Eastwood to answer or otherwise plead in response to the Complaint. Respectfully submitted, Bridget Montgomery PA Bar # 56105 Elizabeth K. McCoy PA Bar # 32786 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 Telephone: 717-237-6054 Telephone: 717-237-6026(McCoy) Facsimile: 717-237-6019 E-mail: bontgomery@eckertseamans.com Email: emccoy@eckertseamans.com (L0428177J ) CERTIFICATE OF SERVICE I certify that on this 24rd day of November 2010, I served a copy of EASTWOOD CONSTRUCTION CO., INC. AND EASTWOOD HOMES, INC.'s MOTION TO EXTEND TIME TO RESPOND TO THE COMPLAINT via facsimile and first class mail, addressed to: John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 Fax: 717.737.4288 Attorney for Quality Builders Warranty Corporation fle?.a? 4- K Elizabeth K. McCoy, Esq. Attorney for Eastwood Construction Co., Inc. and Eastwood Homes, Inc. (L0428177.1) i i NOV 2 9 YU1U QUALITY BUILDERS WARRANTY CORPORATION . Plaintiff v. EASTWOOD CONSTRUCTION CO., INC., : And . EASTWOOD HOMES, INC., Defendants j4" AND NOW, this IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION DOCKET NO. 10-7008 CIVIL ORDER day of November, 2010, the time for Eastwood Construction Co., Inc. and Eastwood Homes, Inc. to file a responsive pleading to the complaint in the above-captioned matter is extended to Dece W r 0. s/Judge (20 F 6'F-S /Yep. L CL r+y'l J. att ?r?1 (L0428177.1) C C - -yy m o rn z ?v r ?t Z oa .co -n s° - 20 N a n 0 z o a IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA C- QUALITY BUILDERS WARRANTY C"i ? CORPORATION, CIVIL ACTION ? ,- Q Plaintiff, C NO. 10-7008 Civil " V. u:r`?N w C? EASTWOOD CONSTRUCTION CO., INC., `n AND EASTWOOD HOMES, INC. Defendants. NOTICE OF NOTICE OF REMOVAL TO FEDERAL COURT To: Cumberland County Court John Gill PLEASE TAKE NOTICE that on December 7, 2010 , Eastwood Construction, LLC, formerly known as Eastwood Construction, Co., Inc., and Eastwood Homes, Inc., filed a Notice of Removal of this action to the United States District Court for the Middle District of Pennsylvania. Attached hereto as Exhibit "A" is a copy of the Notice of Removal which shall effect the removal of this case pursuant to 28 U.S.C. § 1446. Respectfully submitted, Date: December 7, 2010 cr?14za f - ? r ?? (s- Bridget Montgomery, Esq e (LD. No. 56105) Elizabeth K. McCoy, Esquire (I.D. No. 32786) ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Market Street, Eighth Floor P. O. Box 1248 Harrisburg, PA 17108-1248 717.237.6000 Counsel for Defendants, Eastwood Construction, LLC, formerly known as Eastwood Construction Co., Inc. and Eastwood Homes, Inc. tL0429197.1: CERTIFICATE OF SERVICE I certify that on this 7th day of December, 2010, I delivered a copy of the foregoing NOTICE OF NOTICE OF REMOVAL TO FEDERAL COURT via U.S. First-Class Mail, postage prepaid, addressed to: Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013 John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 717-737-2522 Counsel for Plaintiffs mlwlaw e- Vk Bridget Montgomery, Es i Elizabeth K. McCoy, Esquir Counsel for Defendants, Eastwood Construction, LLC, formerly known as Eastwood Construction Co., Inc. and Eastwood Homes, Inc. (L0429197.1 } it_ E. e_lS II (Re, 1"071 p , ??tSRGr PA CIVIL COVER SHEET COPY P,tSa The JS 44 civil cm er sheet and the intorn,ation cont• med herein neither replace nor supplement the hline and service of pleadings or other papers as required by la%,,, except as provided by local rules of court I his Qpr}?ar v.-cd bt 0 clicial Conference of the United States in September 1974 IS required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet (SEE I t' PIONS ?fff REVERSE OF THE FORM t 1. (a) PLAINTIFFS CLERK I'Ja SEA, Quality Bt<Id61 r ation per pr:,puty ter (b) Counh of Residence of First I sled Plaintiff Oberland (EX( -EllI I ', IJ.S N MNTIU CASES) (C) Attorlley'S (1°mn Name, Address. and Telephone Number) John Gill, Esquire 325 N. Second Street Wormleysburg, PA 17043_717-737-2522 H. BASIS OF JURISDICTION (Place an"X' in One Box Only-) O 1 U S Go\eminent O 3 Federal Question Plaintiff (U.S. Govemmem Not a Party) Ll 2 U S Govemment Fl 4 Dn ersitc Defendant (Indicate Citizenship of Parties in Item III) 1V NAT1IDF "F CIlIT -,v^:., i_n,,.,n.li_r CONTRA(-r TORTS FORFEITFTtF/PENALTY BANKRUPTCY OTHERSTATUTENS O 110 Insurance PERSONAL INJURY PERSONAL INJURY O 610 Agriculture O 422 Appeal 28 USC 158 O 400 State Reapportionment O 120 Marine O 310 ,Airplane O 362 Personal Injury - D 620 Other Food &, Drug O 423, Withdrawal i7 41(1 Antitrust O 130 Miller Act O 315 Airplane Product Med Malpractice O 625 Drug Related Seizure 28 USC 157 O 43,0 Banks and Banking O 140 Negotiable Instrument L.iabilih O 365 Personal Injure - of Property 21 USC 881 O 450 Commerce D 150 Recovery of Overpayment O 320 Assault_ Libel & Product Liability D 630 Liquor Laws PROPERTY RIGHTS D 460 Deportation & Enforcemenrofludgment Slander O 368 Asbestos Personal O 640 R.R. & Truck O 820 Copyrights O 470 Racketeer Influenced and O 151 Medicare Act O 330 Federal Employers' Injury Product O 650 Airline Regs. O 830 Patent Corrupt Organizations O 152 Recovery of Defaulted Liability Liability O 660 Occupational O 840 Trademark O 480 Consumer Credit Student Loans O 340 Marine PERSONAL PROPERTY Safe iHealth O 490 Cable/Sat TV (Excl. Veterans) O 345 Marine Product O 370 Other Fraud O 690 Other O 810 Selective Service O 153 Recovery of0verpayment Liability O 371 Truth in Lending R '" T Y O 850 Securities/Cotnrnodines/ of Veteran's Benefits O 350 Nloun Vehicle O 380 Other Personal O 710 Fair Labor Standards O 861 HIA (13,951T) Exchange D 160 Stockholders' Suits O 355 Mono \'chicle Property Damage Act O 862 Black Lung (923) O 875 Customer Challenge ,'Q 190 Other Contract Product Liabilitv O 385 Property Damage O 720 Labor, Mgnu. Relations O 863 DI WC./DI WW (405(8)) 12 USC 3410 0 195 Contract Product Liability O 360 Other Personal Product Liability O 730 Laborihtgmr Reporting O 864 SSID Title XV I O 890 Other Statuloq Actions O 196 Franchise Injury & Disclosure Act O 865 RSI 1405(g)) O 891 Agricultural Acts REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS O 740 RailwaA Labor Act FEDERAL TAX SUITS' O 892 Economic Stabilization Act O 21u Land Condemnation O 441 Voting O 510 Motions to Vacate r) 790 Other Labor abor Litigation O 870 Taxes (U.S Plaintiff O 893 Environmental Maness O 220 Foreclosure O 442 Employment Sentence D -11 Empl Re( . Inc. or Defendant) D 894 Energy Allocation Act O 230 Rent Lease & Ejecnnent O 443 Housing' Habeas Corpus: Security Act D 871 IRS-Third Pam O 895 Freedom of Information O 240 Tons to Land Accommodations O 530 General 26 USC ?609 Act O 245 Tort Product Liabilih O 444 \k'elfn,e O 535 Death Penalty IMNHGRATION O 900Appeal of Fee Determination O 290 All Other Real Propem O 44S Amer. iv Disabilities - O 540 Mandamus & Other O 462 Naturalization Application Under Equal Access F ploy ment O 550 Civil Rights O 463 Habeas Corpus - to Justice O 446 Amer. -Disabilities- O 555 Prison Condition Alien Detainee O 950 Constitutionality of Other O 465 Other Inunigranon State Statutes O 440 Other Ciyit Rights Actions V. ORIGIN (Place an' X` in One Box Only) Appeal to District O 1 Original 19 2 Removed from O 3 Remanded from O 4 Reinstated or [71 5 transferred from f7 6 Multidistnct O T Judge from Proceeding State Court Appellate Court Reopened another district Litigation Magistrate (soecifv) Judgment Cite the U S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity) VL CAUSE OF ACTION 113ret-description-ofcaLlSe: Contract action regarding warranty fees. VII. REQUESTED IN 0 CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint COMPLAINT: UNDER F.RCP 23 In excess of $75,000.00 JURYDEMAND: n Yes XNo V111. RELATED CASE(S) IF ANY See instructions)- JUDGE Cumberland County PA DOCKET NUMBL-R 10-7008 Civil DATE ? GFRNEYOFKECORD y ?s FOR cIFTW USE 'LY r RECEIPTN ANIOUNF APPLYING IFP 1L?DC;E MAC. JUDCIE DEFENDANTS Eastwood Construction Co., Inc. and Eastwood Homes, Inc. County of Residence of First Listed Defendant Mecklenburg tIN U.S PLAINTIFF GASES 01,T) I N( FF IN LAND C ONDEMNATION CASES_ USE H IL LOCATION OF THE. LAND INVOLVED Anorne%S (If Known) Bridget Montgomery, Esquire ESCM 213 Market St. ,8th Fl. Harrisburg, PA 17101 717-237-6054 III. CITIZENSHIP OF PRINCIPAL PARTIES(Placean 'X- inOneBoxfn Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTTF D£F Citizen of This State O 1 O 1 Incorporated or Principal Place lq 4 O 4 of Business In This Stale Citizen of.Anolher Stale O 2 O 2 Incorporated and Principal Place Cl 5 5 of Business In Another Stile Citizen or Subject of a 0 3 O 3 Foreign Nation O 6 n 6 R COPY IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA QUALITY BUILDERS WARRANTY CORPORATION. Plaintiff, V. EASTWOOD CONSTRUCTION CO., INC and EASTWOOD HOMES, INC., Civil Action No. 111 )_ Defendants NOTICE OF REMOVAL PLEASE TAKE NOTICE that pursuant to 28 U.S.C. §§ 1332, 1441, and 1446(b), Defendants, Eastwood Construction, LLC, formerly known as Eastwood Construction Co., Inc. and Eastwood Homes, Inc. (hereinafter "Eastwood"), hereby remove the above-referenced action, Civil Action No. 10-7008, pending in the Court of Common Pleas of Cumberland County, Pennsylvania, to this Court. Federal jurisdiction is proper based upon diversity of citizenship and the amount in controversy. In further support of removal, Eastwood states as follows: I . On November 4, 2010, Plaintiff, Quality Builders Warranty Corporation (hereinafter "QBW"), filed its Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, alleging breach of contract claims of a Builder's Agreement in which Eastwood agreed to become a member in QBW's home warranty program. (See Exhibit 1, Complaint). (L0429131.1) 1k 2. This action is properly removable under 28 U.S.C. § 1441(a) and (b) because this United States District Court has original jurisdiction of this case under 28 U.S.C. § 1332(a), as amended, which provides in pertinent part as follows: (a) The district court shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and cost, and is between - - (1) Citizens of different states... 3. Plaintiffs are citizens and residents of Pennsylvania. 4. Eastwood is a North Carolina corporation with its principal place of business in North Carolina. QBW is not a citizen of North Carolina. 5. Thus, there exists complete diversity of citizenship between Plaintiff and Defendants. 6. In addition to complete diversity, the amount in controversy exceeds the sum or value of $75,000.00. Count I of Plaintiffs Complaint advances claims for warranties for all homes constructed by Eastwood Construction, Co., Inc. until May 15, 2012. Plaintiff further claims that the damages in Count I exceed the sum of $50,000.00. (See Complaint ¶¶ 17-18). Count II of Plaintiff's Complaint advances claims for warranties for all homes constructed by Eastwood Homes, Inc. until December 13, 2011. Plaintiff further claims that the damages in Count 11 exceed the sum of $50,000.00. (See Complaint T¶ 30-31). Thus, the sum of the damages Plaintiff claims in Counts I and II of the Complaint is $100,000.00 and is in excess of the $75,000.00 jurisdictional threshold amount. 7. Allen Nason, Esquire, General Counsel for Eastwood attests that in 2010, Eastwood paid fees to QBW substantially in excess of $75,00.00. Nason further attests that the fees are based upon the number of homes constructed. Nason also attests that Eastwood does not 2 anticipate a material change in the number of homes to be constructed by Eastwood during 2011 or 2012. Consequently, the amount of warranty fees paid to QBW by Eastwood would exceed $75,000.00 for both 2010 and 2012. (See Exhibit 2, Affidavit). 8. Thus, under 28 U.S.C. § 1332, this Court has jurisdiction over this action because the amount in controversy exceeds $75,000.00, exclusive of interest and costs, and complete diversity exists between Plaintiff and Eastwood. 9. On November 8, 2010, Eastwood received a copy of the Complaint through service by first class mail. Pursuant to 28 U.S.C. § 1446(b), this Notice of Removal is filed within thirty (30) days receipt of the complaint by first class mail. (See Exhibit 3, date stamped copy of Complaint cover sheet). 10. This Notice of Removal is filed within one year of the filing of the Complaint. 11. This Notice is filed on behalf of both Eastwood entities and there are no other Defendants. 12. True and correct copies of all processes, pleadings, and orders served upon Eastwood are attached as Exhibit 4 (Complaint previously attached as Exhibit 1) in conformity with 28 U.S.C. § 1446(a) along with a copy of the state court docket sheet. 13. The United States District Court for the Middle District of Pennsylvania is the Court embracing the place where this action is pending in the Court of Common Pleas of Cumberland County. 14. Eastwood reserves the right to supplement its Notice of Removal by adding any jurisdictional defenses which may independently support a basis for removal. 15. Contemporaneously with the filing of this Notice of Removal, Defendants have filed a copy of same with the Clerk of the Court of Common Pleas of Cumberland County, 3 A Pennsylvania. Written notice of the filing of this Notice of Removal has also been served upon Plaintiff-s counsel. 16. This Notice of Removal is signed pursuant to F.R.C.P. 1 1. 17. As the attached consents indicate, Allen Nason, General Counsel for both Eastwood entities, has separately consented on behalf of each Defendant to the removal of this matter to federal court. (See Exhibit 5, Consents). WHEREFORE, Eastwood requests the Court to take jurisdiction of this action and issue all necessary orders and processes to remove this action from the Court of Common Pleas of Cumberland County, Pennsylvania, to the United States District Court for the Middle District of Pennsylvania. Respectfully submitted. b Bridget M6ntgomery(PA Bar # 56105)' bmontgomery@eckertseamans.com Elizabeth K. McCoy (PA Bar # 32786) emccoy ,eckertseamans.com Eckert Seamans Cherin & Mellott. LL,C 213 Market Street. 8th Floor Harrisburg, PA 17101 Telephone: 717-237-6054 (Montgomery) Telephone: 717-237-6026 (McCoy) Facsimile: 717-237-6019 Counsel for Defendants, Eastwood Construction. LLC, formerly known as Eastwood Construction Co.. Inc. and Eastwood Homes, Inc. Date: December 7. 2010 4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA QUALITY BUILDERS WARRANTY Civil Action No. CORPORATION, Plaintiff, V. EASTWOOD CONSTRUCTION CO., INC and EASTWOOD HOMES, INC., Defendants CERTIFICATE OF SERVICE I certify that on the 7`h day of December, 2010, I served a copy of Defendants' NOTICE OF REMOVAL on the following parties in the matter indicated: Via First Class Mail Postage Prepaid: John A. Gill, Esq. 325 North Second Street Wormleysburg. PA 17043 717-737-2522 Counsel for Plaintiff Bridget Montgomery V V Elizabeth K. McCoy Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 717-237-6054 Counsel for Defendants {L0429131.1; ??,a A QUALITY BUILDERS WARRANTY : IN THE COURT OF COMMON PLEAS CORPORATION, CUMBERLAND COUNTY, Plaintiff : PENNSYLVANIA r, W.. VS. :CIVIL ACTION EASTWOOD CONTSTRUCTION CO., INC.. a DOCKET NO. AND I0-140s 6cv{1- EASTWOOD HOMES, INC. Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 34 South Bedford St. Carlisle, PA 17013 717-249-3166 TRUE COPY FROM RECORD in Testimony whereof, I here unto set my hand ? { of day ot said Court at Car isle, Pa. Till "t dJ z??bC i G _.1?-----20 /` ` ? ? / pthonotary QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VS. EASTWOOD CONSTRUCTION CO., INC CIVIL ACTION AND EASTWOOD HOMES, INC. Defendants DOCKET NO. 10 - 200`6 C 6 V G t- COMPLAINT AND NOW, this 4"' day of November, 2010 comes the Plaintiff, Quality Builders Warranty Corporation (QBW) and files the within Complaint against the above named Defendants and avers in support hereof the following: 1. Plaintiff is Quality Builders Warranty Corporation,(QBW) a Pennsylvania corporation engaged in the Ten-Year New Home Warranty business with its principal place of business situate at 325 North Second Street, Wormleysburg, Cumberland County, Pennsylvania, 17043. 2. New home builders who apply and become members of QBW offer warranties against certain specified defects in homes they construct. 3. Defendant, Eastwood Construction Co., Inc. (Eastwood Construction) is a North Carolina corporation engaged in the new home building business with its principal place of business situate at 2857 Westport Road, Charlotte, NC 28208. 4. Defendant, Eastwood Homes; Inc. (Eastwood Homes) is a North Carolina corporation engaged in the new home building business with its principal place of business situate at 2857 Westport Road, Charlotte, NC 28208. COUNT I Quality Builders Warranty Corporation VS. Eastwood Construction Co. Inc. 5. On June 23,1997, in connection with its application to become a member of QBW, Eastwood Construction signed, and sent to QBW at its principal place of business, a Builder Agreement in which Eastwood Construction agreed to become a member in the QBW Ten-Year Limited Warranty Program. 6. QBW executed the Builder Agreement on July 1,1997, at its office in Cumberland County Pennsylvania, and Eastwood Construction was approved for membership. Eastwood Construction was provided with a fully executed copy of the Builder Agreement. A true and correct copy of the fully executed Builder Agreement is attached hereto incorporated herein and marked as "Exhibit 1 ". 7. In May of 2003 Eastwood Construction contacted QBW in an attempt to obtain a reduced membership rate for enrollment of its homes. 8. The parties agreed that Eastwood Construction would receive a $1.15 per thousand rate in exchange for its commitment to maintain its membership in the QBW program. The previous rate Eastwood Construction was paying was $1.65 per thousand. 9. QBW forwarded an Amendment to the Builder Agreement to Eastwood Construction. Eastwood Construction executed the Amendment and forwarded it to QBW's principal place of business. 10. QBW then executed the Amendment at its principal place of business and Eastwood Construction was provided with a reduced rate in accordance with the executed Amendment to the Builder Agreement. A true and correct copy of the Amendment is attached hereto incorporated herein and marked as "Exhibit 2". h H. The term of the Amendment to the Builder Agreement was for three years to commence on May 15, 2003 which was automatically renewable for like terms unless thirty (30) days prior to the expiration of the current term either party provided the other thirty (30) days advanced written notice. 12. Neither party provided the other the required notice; therefore the Amendment renewed May 15, 2009 for another three year term with an expiation date of May 15, 2012. 13. Eastwood Construction has breached its Builder Agreement as Amended by failing to enroll all homes it constructs for the period regtrired. 14. Eastwood Construction forwarded a letter to QBW dated November 1, 2010, indicating that they were terminating their membership in the QBW program effective December 31, 2010. A true and correct copy of said letter is attached hereto incorporated herein and marked as "Exhibit 3". 15. Section B 1 of the Builder Agreement executed by Eastwood Construction states, "Builder agrees to enroll in the program every home Builder, Builder's Principals, or any entity under Builders or Builder's Principals common control constructs." (See Exhibit 1). 16. The Builder Agreement states in Section B 5, "If Builder fails to enroll any eligible homes as required by this Agreement, QBW may seek specific performance or other appropriate relief in legal or equitable proceedings." (See Exhibit 1). 17. Eastwood Construction's failure to enroll all homes they construct for the required period is a violation of the Builder Agreement as amended and QBW seeks to specifically enforce the obligation of the Builder Agreement, as amended to compel Eastwood Construction to enroll all homes they construct in accordance with QBW's membership agreements until to May 15, 2012. I S. In the alternative, QBW seeks damages from Eastwood Construction for homes, which the Eastwood Construction would be required to place warranties on during that period of time, which damages exceed the sum of $50,000. 19. QBW also seeks attorney's fees as authorized by Section B 5 of the Builder Agreement. 20. Jurisdiction is proper in the Pennsylvania courts since Section E 5 of the Builder Agreement indicates, "This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder hereby consents to the personal jurisdiction of the Pennsylvania courts." WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, demands judgment against Eastwood Construction Co., Inc. as follows: 1. That the Builder Agreement as amended executed by Defendant Eastwood Construction Co., Inc. be specifically enforced to require Eastwood Construction Co., Inc. to enroll all homes they construct for the period May 15, 2009 through May 15, 2012 in accordance with the Builder Agreement as amended. 2. In the alternative that Defendant, Eastwood Construction Co., Inc. be ordered to pay damages equal to warranty fees, which QBW was entitled to based upon homes projected for the period May 15, 2009 to May 15, 20012, said amounts to be in excess of $50,000.00. 3. Attorney's fees as authorized by Section B 5 of the Builder Agreement. 4. Such other relief as deemed appropriate by the court. COUNT II Quality Builders Warranty Corporation VS. Eastwood Homes, Inc. 21. On December 2, 2005, in connection with its application to become a member of QBW, Eastwood Homes signed, and sent to QBW at its principal place of business, a Builder Agreement with addendum in wl&h Eastwood Homes agreed to become a member in the QBW Ten-Year Limited Warranty Program and maintain its membership in the QBW Ten-Year Limited Warranty Program for three years. 22. QBW received the Builder Agreement as Amended at its principal place of business on December 8, 2005. 23. QBW executed the Builder Agreement December 13, 2005, at its office in Cumberland County Pennsylvania, and Eastwood Homes was approved for membership. Eastwood Homes was provided with a fully executed copy of the Builder Agreement. A true and correct copy of the fully executed Builder Agreement as amended is attached hereto incorporated herein and marked as "Exhibit 4". 24. The tern of the Addendum to the Builder Agreement was for three years to cormnence on December 13,2005, which was automatically renewable for like terms unless thirty (30) days prior to the expiration of the current term either party provided the other thirty (30) days advanced written notice. 25. Neither party provided the other the required notice; therefore the Addendum renewed on December 13,2008 for another three year term with an expiation date of December 13, 2011. 26. Eastwood Homes has breached its Builder Agreement as Amended with QBW by failing to enroll all homes as required for the period required. 27. Eastwood Homes forwarded a letter to QBW dated November 1, 2010, indicating that they were terminating their membership M the QBW program effective December 31, 2010. (See Exhibit 3) 23. Section B 1 of the Builder Agreement executed by Eastwood Homes states, "Builder agrees to enroll in the program every home Builder, Builder's Principals, or any entity under Builders or Builder's Principals common control constructs." (See Exhibit 4). 29. The Builder Agreement states in Section B 5, "If Builder fails to enroll any eligible homes as required by this Agreement, QBW may seek specific performance or other appropriate relief in legal or equitable proceedings." (See Exhibit 4). 30. Eastwood Homes' failure to enroll all homes they construct for the required period is a violation of the Builder Agreement as amended and QBW seeks to specifically enforce the obligation of the Builder Agreement, as amended to compel Eastwood Homes to enroll all homes they construct in accordance with QBW's membership agreements until to December 13, 2011. 31. In the alternative, QBW seeks damages from Eastwood Homes for homes, which Eastwood Homes would be required to place warranties on during that period of time, which damages exceed the sum of $50,000. 32. QBW also seeks attorney's fees as authorized by Section B 5 of the Builder Agreement. 33. Jurisdiction is proper- in the Pennsylvania courts since Section E 5 of the Builder Agreement indicates, "This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder hereby consents to the personal jurisdiction of the Pennsylvania courts." WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, demands judgment against Eastwood Homes, Inc. as follows: 1. That the Builder Agreement as amended executed by Defendant Eastwood Homes, Inc. be specifically enforced to require Eastwood Homes, Inc. to enroll all homes they construct for the period December 13, 2005 through December 13, 2011 in accordance with the Builder Agreement as amended. 2. In the alternative that Defendant, Eastwood Homes, Inc. be ordered to pay damages equal to warranty fees, which QBW was entitled to based upon homes projected for the period December 13, 2008 to December 13, 2011, said amounts to be in excess of $50,000.00. 3. Attorney's fees as authorized by Section B 5 of the Builder Agreement. 4. Such other relief as deemed appropriate by the court. Respectfully Submitted, Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation BUILDER AGREEMENT AGREEMENT made this Z3 Ro day of .1L 19_-27 _ between QUALITY BUILDERS WARR TY CORPORATION, a Pennsylvania cc, poration, herein referred to as 'QBVJ,' and 111-71 ?o psi . 6o. _Z c . 'lame of Builder. (indicate whether a corporatio -,, partnership, individual or other) of Address ZUS7 177- /ZO /41040 7-1-0- /VG Z?ZD? herein referred to as 'Builder.' state zip SECTION A. MEMBERSHIP AND TERM: 1. QBW administers a program whereby home builders registered with QBW enroll homes they construct in the program and purchasers of those homes are protected by a warranty against certain specified defects. 2. In order to develop and maintain a good reputation for providing protection to purchasers of well-built homes, QBW protects and promotes its good-will by careful selection of builders to participate in its warranty program. 3. Builder desires to participate in QBW's warranty program and, to that end, agrees to abide by the provisions of this Agreement and to conform its behavior to the standards expressed herein and in the Limited Warranty Agreement. Builder warrants that all information supplied to QBW in connection with its application is true and correct. 4. All registration fees (initial and annual rescreening) are set by QBW at its discretion and are non-refundable. 5. QBW, upon executing this Agreement, has accepted Builder as a member of its warranty program, subject to the Builder's continuing performance of its obligation under this Agreement. 6. Builder's membership shall commence on the date of Execution by QBW and shall continue until terminated by either party in accordance with the terms of this agreement. QBW reserves the right to rescreen Builder annually. If QBW determines that Builder does not meet its approval standards upon rescreening then QBW may terminate Builder's membership and the provisions of Section B, paragraph 6, shall be in effect. SECTION B. HOME ENROLLMENT, 1. Requirements. As part of its participation in QBW's warranty program, subject to QBW's acceptance, Builder agrees to enroll in the program every home, Builder, Builder's Principals, or any entity under Builder's, or Builder's Principals common control constructs in any state in which QBW operates and agrees to pay all fees required by QBW in the enrollment process, which fees shall be non-refundable. 2. Procedures. Builder agrees to enroll its homes according to procedures established by QBW. Builder may enroll homes currently under construction and homes completed but not sold or occupied (as of the date of this Agreement or the date of reacceptance following a period of suspension or non-participation) provided that enrollment is made within 45 days of execution of this Agreement or reacceptance, and QBW has inspected and approved the home. When enrolling other than a detached single family dwelling, Builder shall enroll each individual unit of any multi- unit dwelling such as but not limited to duplexes, townhouses and condominiums. For each home enrolled, the Builder shall pay a warranty fee as determined by QBW within the time periods estab- lished by QBW. All warranty fees are non-refundable. A minimum warranty fee of $100.00 shall apply. QBW will provide Builder with a copy of the Limited Warranty Agreement and Enrollment form. Builder and pur- chaser must complete, sign the Agreement and Enrollment Form at closing, and Builder agrees to furnish QBW with a copy of the signed Enrollment form within ten (10) days of closing. Builder agrees not to charge the purchaser direct- ly the cost of the enrollment fee. A home will not be considered enrolled until QBW receives and approves the fully exe- cuted and completed Enrollment Form, payment of all fees, and an approved final inspection. 3. Reservation of Power of Review. QBW reserves the right to reject any home submitted for enrollment in the program if (a) the Builder is not a member in good standing; (b) the home is not constructed in accordance with the Warranty Standards or building codes specified in the Limited Warranty Agreement; (c) the Builder did not observe the enroll- ment procedures; (d) misstates or misrepresents any information; (e) in any way fails to comply with the terms of this Agreement. 4. Assignment of Rights. If a purchaser files a Complaint pursuant to the Limited Warranty Agreement which the Builder fails to correct, the Builder hereby assigns to QBW or its insurer, as the case may be, any rights which Builder may have against a supplier, manufacturer, subcontractor or other person for work performed or materials supplied in con- nection with that claim. Builder agrees to cooperate fully with QBW and to provide QBW with all information which it requests pertaining to the claim. if Builder fails to so cooperate, Builder agrees to compensate and indemnify QBW for any damages sustained by such lack of cooperation . 5. Breach and Remedy. If Builder fails to enroll any eligible home as required by this Agreement, QBW may seek specif- ic enforcement or other appropriate relief in legal or equitable proceedings, even if this Agreement has been termi- nated. Furthermore, Builder agrees to indemnify and hold harmless QBW and its insurer for any losses or any dam- ages QBW may suffer as a result of Builder's breach of this Agreement and such losses and costs shall include reasonable attorney's fees and expert witness fees. Builder hereby irrevocably authorizes and empowers any attorney or any court of record of Pennsylvania or else- where to appear for and confess judgment against Builder for all amounts for which Builder may become liable to QBW EXHIBIT I for the breach of this Agreement, as evidenced by an affidavit signed by an officer of QBW setting forth the amounts then due, plus attorney's fees incurred by QBW, with costs of suit and release of errors. Such authority shall not be exhausted by any one exercise thereof but judgment may be confessed as aforesaid from time to time as often as there is a default. Remedies stated herein are elective and not exclusive and QBW may elect to proceed under this or any other paragraph in this Agreement. 6. Suspension or Termination. QBW may terminate, or at its option suspend, Builder's participation in QBW's Warranty Program, or any entity or individual which Builder is affiliated, it QBW determines that Builder has done any of the fol- lowing, which shall be deemed a breach of this Agreement. (a) fails to comply fully with all provisions of this Agreement; (b) fails to perform any of its obligations under this Agreement, including, but not limited to, cooperating in the opera- tion of the program's informal dispute resolution and arbitration procedure; (c) fails to respond to QBW's notice of a homeowner's complaint; (d) fails to comply with a decision which is rendered pursuant to complaint procedures; (e) fails to provide adequate assurance to QBW within ten (10) days after it receives a written request from QBW for such assurance that (within a reasonable timetable established or approved by QBW) it is willing and able to coop- erate in dispute settlement and to perform the obligations under any decision which is rendered pursuant to such procedures; (f) fails to otherwise cooperate in the operation of the QBW Program in accordance with the rules and regulations of the QBW Program; (g) fails to provide timely proof of compliance with this Agreement, as and when requested by QBW; (h) fails to comply with QBW Warranty Standards and building codes as stated in the Limited Warranty Agreement; (i) fails to comply with the enrollment procedures established by QBW; (j) fails to provide proof that enrolled homes have been subjected to required inspections; (k) fails to respond to purchaser complaints in a timely manner and as provided in the Limited Warranty Agreement; (1) fails to perform its obligations with professional competence or conduct its operations from a position of financial strength and stability; (m) fails to notify QBW within 30 days of a change in ownership, company name or company standing, financial con- dition, or of any other material fact which might affect Builder's ability to meet its obligations under this Agreement; (n) fails to meet ethical standards in its dealings with customers; or (o) misstates or misrepresents any information in connection with its application or in the rescreening process. QBW reserves the option to reinstate terminated affiliates of the primary, terminated Builder if QBW determines that the terminated Builder or its principals are not in a position to control the affiliated Builder. Termination of Builder by QBW shall not affect the rights or obligations of any of the parties to this Agreement with respect to the Warranty Program in effect at the date of termination, subject to the provisions pertaining to voidability. If a Builder is suspended or terminated, he shall not represent himself to be a member of the QBW Warranty Program nor offer the QBW Warranty and shall not use its Logo or refer to the program in any way nor attempt to enroll any home. The Builder shall immediately notify any Buyer currently under contract to purchase a home of the suspen- sion or termination and that the QBW Warranty Program has been withdrawn. Upon request, Builder shall immediate- ly return to QBW all materials supplied by QBW and all material making reference to QBW. Should Builder fail to take these steps, it shall indemnify and hold harmless QBW and the insurer against any and all expenses incurred and loss- es suffered, including. but not limited to attorney fees, by either of them as a result. In addition, Builder shall pay inter- est to QBW at the rate of 18% per annum on all sums due to QBW hereunder if such sums are not paid within 30 days of demand by QBW. Builder may terminate this Agreement upon 30 days advance written notice to QBW. If so terminated by Builder or by QBW, Builder's obligations under this Agreement shall continue as to those homes enrolled during the period in which this Agreement was in effect. 7. Notice. If QBW possesses a reasonable belief that reason exists to terminate or suspend a Builder for violation of this Agreement, QBW may immediately terminate or suspend the Builder by providing it with written notice. If QBW elects to suspend the Builder, such suspension will remain in effect until Builder has cured all defects to QBW's satisfaction, however, QBW reserves the right to terminate any suspended Builder. 8. Voidability. QBW reserves the right to void any enrollment if Builder misstates or misrepresents any information in its application or in the rescreening process or misstates or misrepresents any information in the enrollment of a particu- lar home or fails to pay any fees due for enrollment of any particular home or fails to forward an enrollment form for a particular home within 10 days as required. SECTION C. BUILDER'S OBLIGATIONS: 1. Construction Obligations. Following are the Builder's obligations with respect to QBW's Warranty Program: (a) Builder shall construct all homes in conformity with the Warranty Standards provided in the Limited Warranty Agreement, and/ or in conformity with approved building codes and other standards established by QBW and in effect at the beginning of construction of the enrolled home. QBW reserves the rights to establish special require- ments for escrow payments or other means of protection with respect to any homes constructed by Builder which QBW determines to be 'High Risks.' (b) Builder agrees to have all homes inspected,-as required by QBW, and to pay all fees for the inspection and to pro- vide evidence of inspection as and when required by QBW. QBW shall provide inspectors or shall approve gov- ernmental inspectors. I (c) QBW shall have the right to pct form spot inspections to verify Builder's co ,.p)iance with this Agreement and Builder agrees to cooperate. (d) The Builder agrees to indemnify and hold harmless QBW and/or its Insurer for any losses or damages QBW and/or its Insurer may suffer as a result of the use of fire retardant treated plywood on any building enrolled under the QBW Ten Year Warranty Program. This will include all claims and liability for losses, damages and expenses which QBW and/or its Insurer may sustain, incur, pay or be liable for by means of any investigation settlement or litigation of any claim or action which may be raised, made or brought due to the potential defects caused or likely to be caused by use of the subject plywood. (e) If the Builder is informed by QBW that it is building in an area designated as one with active soil conditions, the Builder agrees to obtain such soils investigations and reports as may be required by QBW. If such reports indicate a need for special foundation design the Builder agrees to construct the foundation according to the design of a registered professional engineer to take into account the conditions disclosed by the soil tests. 2. Warranty Obligations. Builder agrees to perform all obligations arising from this Agreement and the Limited Warranty Agreement. The Builder shall at its own expense perform all obligations as set forth in the QBW Warranty Program and this Agreement which includes meeting the warranty standards upon notice from the Purchaser without the necessity of QBW intervention. If Builder fails or refuses to perform its obligations in accordance with the Limited Warranty Agreement, QBW will perform those obligations; however, Builder agrees to reimburse QBW and/or its insurer for all expenses incurred in performing those obligations, including, but not limited to costs of materials, cost of collection, labor, architect's fees, . engineering fees, and attorney's fees. QBW reserves all rights of subrogation. If the Builder repairs a major structural defect during year 1 or 2, QBW must be notified. Once notified, QBW will perform a compliance inspection. QBW agrees to perform its obligations pursuant to the Limited Warranty Agreement in years three through ten pro- vided that the defect that is the subject of the Purchaser's claim did not occur within the first two years and was not concealed or cosmetically or improperly repaired by the Builder during those two years. Builder is not responsible for any damage caused by a major structural defect, as defined in the Limited Warranty Agreement, occurring after the expiration.of the first two years of the Limited Warranty Agreement provided the defect was not concealed or cosmetically or improperly repaired during those two years. QBW will hold the Builder harmless for the reasonable cost of repairing or replacing such defects, and against the payment of any money judgment, order or decrees made against Builder for the repair of the defect. 3. Builder is authorized to advertise its membership in the QBW Warranty Program and to use its Logo in its business, pro- vided that any reference to QBW or its insurer, whether contractual or advertising copy, be approved by QBW in writ- ing in advance of its use. SECTION D. INFORMAL DISPUTE PROCEDURE: 1. Builder should be aware that the Limited Warranty Agreement provides for an informal dispute settlement and arbitra- tion procedure to resolve complaints by purchasers under the Limited Warranty Agreement. Builder should become familiar with the settlement procedures in order to be aware of its rights and responsibilities. Builder agrees to coop- erate fully in the procedure and to be bound by and to comply with any decision of an independent third party, or arbi- trator. If the Builder fails to perform its obligations hereunder in a timely and good and workmanlike manners such fail- ure shall be considered to be a refusal to perform governed by paragraph C.2 hereof. 2. The Builder agrees to pay all fees charged in connection with the informal dispute settlement and arbitration proce- dures. SECTION E.TERMS GOVERNING OPERATION AND INTERPRETATION: 1. Builder agrees to perform its obligations under this Agreement in a timely manner. However, time provided for perfor- mance of obligations hereunder shall be extended by events not subject to control by the person obligated to perform. Such events include acts of God or the public enemy, or, riot, civil commotion or governmental conduct. 2. Descriptive headings as to the contents of particular provisions of this Agreement are intended for convenience only and are not to be considered in construing this instrument. 3. This Agreement shall not constitute or be considered an agency, employer-employee relationship, joint venture or part- nership between the parties. None of the parties, nor any of their employees or agents, shall have the authority to bind or obligate the other party except as provided by this Agreement. 4. Should any provisions of this Agreement be determined by a court of competent jurisdiction to be unenforceable, that determination will not affect the validity of the remaining provisions. 5. This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder hereby consents to the personal jurisdiction of the Pennsylvania courts. For Builders who are licensed in the state of New Jersey, note that this agreement shall be interpreted and enforced in accordance with the laws of New Jersey; for all homes enrolled with an address in New Jersey. 6. Builder shall not assign this Agreement without the prior written consent of QBW. 7. This Agreement shall insure to the benefit of and be binding upon the heirs, executors, administrators, assignee, and successors of the representative parties. 8. This instrument, and security documents and documents referred to or incorporated herein by reference, contains the entire agreement between the parties, and no statement, promises, or inducements made by either party or agent of either party that is not contained in this written contract shall be valid or binding; and this contract may not be enlarged, modified, or altered except in writing signed by the parties and endorsed hereon. 9. Failure of either parry to insist upon compliance with any provision of this Agreement shall not constitute a waiver of that provision. 10. All notices required hereunder must be in writing and sent by certified mail, postage prepaid, return receipt request- ed, to the recipient at the respective address shown below, or to whatever address the party may designate in writing. 11. The effective date of this Agreement shall be the date of execution by QBW. QUALITY BUILDERS WARRANTY CORPORATION By FV 1L-? , Joseph M. lsh ` i ,President Date of execution by QBW: ( July t , 1997 Builder's Registration No.: 60271 BURL7D-ER: Z;?574100v (D v5T. rD. LNG_ (Name of Builder - please print or type) DA By Copyright 1988 OBFORM 050 3195 Duality Builders Warranty Corporation ??1G7 !/1/E STiJ10?16Z?IrJQ `?.? Ui f6 ?D3?/?dh'?? (Please print name/title of executor) f ?Fjsr7 (?/ D2 /Gc3_ 2GoTlZ` /L 20-z"11-0) P (Address) May-15-03 16:00 Fro,T- T-B24 P 002/002 F-766 ( OJ-i ? AMENDMENT TO BUTLDER AGREEMENT -j --l ?s a-mendment, is between Quality Builders Warranr5, Cmporarion (QBW) and EASTWOOD CONSTRUCTION CO., INC., refelTed to as "Builder". Builder is a .member in the QBW 10 Year Limited Warranty Program. Q)3W and Builder desire to modify the term of the Builder Agreement, QBW and Builder, in etichange for the mutual covenants contained herein and intending to be legally bocmd hereby agree as follows: L Builder shall maintain its membership in QBW's Limited Warranty, Program for an additional period of three (3) years in commence upon the below date and submii for enrollment homes which Builder or any affiliate constructs during that time. Builder may not terminate his participation in the QBW Program within that period unless consented to by QBW in writing. 2. Builder's rate will be lowered to SIAS per thousand. The rate will remain in effect for the period of this Amendment. The Amendment will renew for a Lee term unless thirty (30) days prier to the expiration of this terns or any extensions either pasty provides the other thirty (30) days advance written notice that they intend not to extend the period entitling the Builder to a lower rate. If l3nilder provides notice, QBW will adjust the Builder's rate upward:. effective at the end of the then current terra. 3. I in the unforeseen event of a rate increase, caused by Legislation, or situations beyond the control of QBW, Builder has the right to terminate participation. 4. If the terms contained in this Amendment are inconsistent with the Builder Agreement, the terms of this Amendment shall govern. ?N WITNESS WHEREOF, the parties hereto have caused this Amendment to be c%ecuted by their duty authorized officers, as of this 150 day of May, 2003. QUALITY BUILDmu wARRANTy CORp, =--------- F..ASTWOO.D CONSTRUCTION CO., INC. 13 :. EXHIBIT 2 Tr1T01 P a?- EASTWOOD H O M L 5 Homebuilder of Integrity November 1, 2010 VIA FEDERAL EXPRESS AND REGULAR MAIL, Quality Builders Warranty Corporation 325 North Second Street Wormleysburg, PA 17043 I) el)f 2 10 Re: Termination of Builder Agreement with Eastwood Homes, Inc. and Eastwood Construction, LLC fVa Eastwood Construction Co., Inc. Dear QBW: COP&ORATE DMSION 28571, estport [toad Charlotte, NC 28208 Phone: 704-399-4663 Pax: 704-399-1127 Please accept this correspondence as tenninating the Builder Agreement as between Eastwood Homes, Inc., Eastwood Construction, LLC f/ka/ Eastwood Construction Co., Inc. ("Eastwood") and. Quality Builders Warranty Corporation (QBW) effective December 31, 2010. In accordance with the contract, Eastwood is terminating this agreement by providing more than thirty (30) days advance notice. We will stop enrolling new construction starts which take place after December 1, 2010 in the QBW Warranty Program. During our transition to a new warranty provider we anticipate a need to coordinate between our companies, particularly involving addressing warranties where Eastwood has paid for enrollments but where houses will not finish or be sold by December 31, 2010. We have identified Justin Myers, Vice President of Corporate Operations, and Allen Nason, General Counsel, as Eastwood's agents for facilitating a transition which is as smooth as possible. Thank you for your anticipated cooperation. Si cerely A GCS Allen N on General Counsel Cc: Justin Myers J. Clark Stewart EXHIBIT 3 r ?ti.?a Y> BUILDER AGrtEEr: 'CNT fly l 0 ?g day of4'?- 2g?1 ?GREENIFNIT made this-- >etween QUALITY BUILDERS WARf2ANTY CORPORATION, a Pennslieanla carporalion, Wain referred to 85 "QBW Ord elfi zp rsl[ett''po irar j;I rfyld:r?r or other) Nome or ?ulld v Df _ r :7 "• ., p.},., :; ?'' r; `E" ?.'• ?`!'";t`,;',},y,_'!f!kk.` , rein referred to as "Sulider +?Q?'7 `qtr C41•s5o \,]-5-c .I'r'k f Mp..'.yt,:iri? {?( ,,,,., :,•.. ?' y: r_."'P`EG=6° ??. EMB 13SHIt' ..,'?• v "? ,_r,_". •.1tr.,_.?7?.:r•,.yk,;>• 's•,.,?;',;,??t ? .???,• ?. SEGT19tV A. Cut ANI3fTERM: -'• ?:.bufi ~ . ' ._ •,,?J 1;..•. rry?W:, ..ol,no es? •e co s?• the progs'am and L71rJ :$n . I - fir ' r , 1, QHW admini a prngrtlm wherehyrhRrr?a cje :6 I ke I `QI3 .. ?,. r:. t t •; L•?1 P+r. 1.11 EBc 9d © ?0 ? .V;, ?a1(+ratas purchasers d horse hoMa ,era prplectec3 ti. t •f +dl ' o p U "' of'Cvef Jr dilE °-{ e . Q$W protects _ L asses > n agotid F..ov;to y * o Gat,,.>t?, 2. In order to¢evelop aril maintai o 'gyp sa att31,:?° elm ?P 9 and We..?1bns of this 3. t3ullne Pro 5; ._ d., fwarrt a t. Builder a P p?grtirnd•to coaforrr??1 L e, t d We?(a ty''A5I ti4 tt ""d o C7u' v Eft ??'s'Japp'1 t Goo; a d ' G?nL,k 't 'it Y t? thakaitfnrQC rrta (i;?n?Pec?lon; ?•..:.: r" t e6{I?r ealing t),are, bhby'QBVVat'ts ?"? tier o. f' Q a' 4. All eg[siratlan-fees (inltl Os F ?!:: •t,>r t ? a;? }ggg' wa er's ldeasl`?? ' 111tT8r`0 i ra`7??ss?&t tai Id go UP45 r 'aeco e d e' iii r? 1N 'iipon`execiatin .j, p ,.:•,-, .?:, ?`4 c . l'a CHS C_i r?31 i7y tlo'ti1F' ;I ;f? ?` f ektlr?dy 4+r'1 S Cuptinulnla•perCnana 1t1d?C,{ ?S11A i88t,Yle?l r ?{C k 13 t? ?.•....r4.: „I .7M r•,'r?)t?g?, I B l I 8( Atlpall 1?n!the tb{3N/„ar10'akl? 6. p?ilid3r's t'd'ate'(ofl?%e r> fiSc embersti ire .?? -? <?.d?,'?: cQ>3 d's?e?ipnos m rsenieril;Q3UVresQ aslfkhel?fitl?o;l?e5yra 73 .k„t J?t accordancevvltli' e. .1 9 w,.r.,•,..a 1,.:,, .t: ..•'• i,. '' G .a e pi ' the ' ds;tt o }rascreenl "gryt e(? Q81nnaVk : r,. art , {hat BulidaC dges rio v tel?f Q"a,nda> r•.L.: P Fyn. J: ' ,.g?ta?l. rpvlsjons of;54c P >i.u ,, c7 ti ..?i•r?th''?4?1111r 1r?.?,:y ,, dr. ;1 ` : I.{;.y:Fi. • i •?l.;?.;:Y t ? 'q?+l?:? trl' , T ?Nq v' `?r'?15' •t?,•l.;ls'q-. , ?tr?g?.'SULy? y ??.I 7 l', Ll L?'?k}7.?t• • t ..t'r? ? ?; t fr Y? "• ''l '. ?':f1 sG?301V B Ht7M L 1:x'Iyl'+!rerC?'?ivt.`+,7?:j?!!/:[[[?i? It.,`??_IJ?:> ,iil?t?; J, rog( ecMlt4 Q 8 [8?.6 Si' yBQ? ? r R• pamr,sv. », i. r ., to . ? ' Y•' eitnia'?Irr;:4BW ??`><va,ra ty L ,?..?, . i? pr.?.l?r ?,?{ i? Regt Irernerits I. I .w..r riroil lri';the {ita'g l der 8 llaei`s'Rrin ??s•'. or .Yf P.Pt U qp; J t i:F - r..: f GV f o 8 n ' ucN`yiQ817Urbpar?te a9 r ~ess'??toRPp e t t. ,? .?1 cit t ;gnkr ;r? t`oc?ss`rv,+ihiGFlife' "rl ?1r?da?j?e2Y}:7iii;1?`7':Y'.'i?`,???t'>t„'k?sf?- f?. r. , `I "' o as ao ord ff A caduf6g <b] s . 2_ Pr•acedcres;) ,• Bunc?. [e? h??i! N.yr1 ftig ,,4:? y?? .-?.;, 7 ,r:..?• s f • earn ci to of ?ii1 i?ca n cot?7p?ete?llbU oCsptd,'grccup?eas? a k e tr jet. t , .• .' ; r R &n;arj b ffy! B, ?,.j ?rnti,?r, fxro ?.? ?, -.,_. ,•:.:. ,. IS' . adgkw r 2 ti of r .. ,( ° ?r no 7 rte ate n `rnv1dedsthal j?Ijrr aGr,.8• CB?' 01104At11 ? ?' -Liap$ SI hi, _ ?.-•J; iPaaJ.J?p.,,?+,?r5?? ,r,•KiclMp t11?''-'?l?`L•'1• I 1?,, :5t?1[ 4.L._• . •?, - ._....,,:_•:ra• _. .__ _ ?'Vt..'? ?:''?::?.r.r1G,rt7tF:oc?fn•QriortFtt?. xinr{':?YtnY.YT1?Ar1! 7lbr{y r-l :rtr:fl .n,Ye rllulFr too yruyn kiR Y•"k c{. to gr r?- nr^ ?.- , ti?r? .,,? 26 3 f e I uS erenro led on?.t?y ;date. 1(. Ono p rtt [,. ro cFnsauctIom,s pd Vito e. 8X V) portion rnoa ?ahijriPverfrsf82r(IgrT? t e {?' d z e( arara y a j Eif r?7f Yee P ., of th ?: ?l I'alloina - b o a et' ?4I V) W Leh:` )?:`gt?j?>+ flan d c 73 " g,e ?v?atlJ(?g? "wild (I etc. d(v,a d 11Y mu[tl-unit ?'?. p, ?•r * ?:hC t a the direWon. dwelling `s clifas'•ti6'.gz taditol?r? r! jrd4G;?l?. Bu?d,e`(2grAes? o e, RZII die ?i i g o. [ ed?a ?t a;`Eir1e df?ter, ? at o 7' y? of [16w, s time pedDds '? 'ral e'd rtes 1 der. i?.,???1 r?+ra ,?(:7?tYe a?, d (?errlRe!?q?Vri{?W h For eadh iFto 8. +911 , 1 ..h pl. ?, M1U 'i' jdv_rj' I.ga, y !1 L w r' ;37 established by j' t'A?l wafCary ees?a ,q',rton-ekpfu h? . ,r,P ' ,? rt'ur'o4`v r? a ty? ee?oF7, OR '. fl i Y_ OBW will ref d?jBullder?,vF?t ?htja ?o yjotttfh L(trt?C?k1 ink)?Agreeme t, arj ;Etr?(o pie?¢r L u lder and purchaKor P u- •?•?•-. 5. • 7 n r.1 rlrer.r?... _- rra.aL: of the signed trust complt3te en ,that,En?o?lertE?brfyl;t?tlcl'osJngi-a?r;,8c11?r1Fr';ad?°Yt??o{t?rnfs ` Q B X71 2 c?PY Enrollment Pori rt wlih? to ti 1,f1 +t le so'o clo?if?g` BU7der -grges o qi; do chattgejfllio pu a"se directlyt tor?the cast of [he xjcute?dnd completed enrolimont fee. A have uvfll?rloec?ris(driyesnrnltedj?fl{Bt'Nirace [v?sa` cIpp(ovasulty a d enrollment Form, ayment of aUee clean at?Proued` alsl 5 action r?? ?r;? -' o s " , or?rle?ec a?Y_c oti3P+,Y-.:ml, y? , i. ent In the program If (a) 3- Reservation of Power of Rovlew Q8\0%- ,i5-it' ffilght the Builder Is not a member in good standing, (bAI? y, 4 .a. s lRk nsUucted?(P acco,da c? +?th?l;he YlOtrant}r Standards or building codes specified In the Limited Warranty Agreement., (c) the frullder did{not obse-(va?(h?,te?iGQO(?ent procedures; (d) the builder misstataG or misrepresents any fnformation-, (a) the Bulldar In any h2 1[s?Ya comp'?y'?vlkh the terms of this (? ?Y4',i?].tQ}^ Agreement- s i` h i W'- d_ Assignment: of Rights- ti a purchaser flies a Complaint pursuant to the Limited Warranty Agreement wh?ch the Bullderfelis to correct, the Builder hereby assigns to QBW or Its insurer, as the 'mase maybe, any rights which Builder may hove against a supplier, manufacturer, subcontractor or other person for work performed or materials supplied In connection with that cEaim- Quilder agrees to cooperate fully with QSW and to provide QGW with all information wh(ch It regU4515 peminlrg to the claim, if Builder falls to so cooperate, Builder agrees to compensate and Indemnify QE3W for any dsmages sustained by such lack of cooperation. 5. sreach and Romedy. If 13ullder falls to enroll any eligible home as required by this Agreement, C16W may seek specific r3nrorcement or other appropriate relief in legal or equitable preItteadings, evOn If thlfi Agreement has been terminated, 'n 'd L5:! t 500E 0 :,en EXHIBIT4 urtherr fore, Builder ag, , to indatnnil) -h2l e ,?a:.anable ?t?orriey 3 it ?s r--ne,,t a such lcssas and cu=w d aUger as a rasutt Cf Lyu(ld8rs broach Uf f.hta ?- a + nt'corney cr any curt of ;acord of f'ef-WIS! arila or al'e;tihate and expert wltness f68S. Builder hereby Irrsvnr bly authcliz-s 2nd empowers Y toe pear for and confess judgment against uildevfo r all 8Mby an oKlc: r of Qr3??Isetl{ngiarh the 2m4 int5 i e?y clue, rpl47 p Ity shall not Y,a exhgu?e Y =?Y ens bTgach reamey` of s fa rethiss I nresment,y as evld Wtttl by an b rtArrre,rred b 016W, uvlt t cosh of salt and teleaso of error. SuGle au s. oftt -as lh6f-6 I.-2 thor 0'to e tm grQsler n6 prpca dr u dart this or any other nxemiso thereof but lodgment may U3 et.6nfee a noia xetusid tr and tIrn5 pemodl9s S:2t9d i?etaln are p oragraph in this Agreement torrninate, or at its optlor?, suspend Builder s parilclpatlan to Q13W`saof the SuspanSion or Tormination- Q13W may a program, or any entity or Individual with evhlch Builder Is affiliated, It Q8\N d0tafh, Inns That 'Builder dpatlo has Bona any following, which shall be deemed a branch of this Agreement: operatin rd in the operatlan of (a) falls to comply fully t.vlth any provision of this Agreamant, (b) fails to perfoffri arty of its obligations under this Agreement, Including, bwt not limited to, cc. the program's Informsl dispute rosolutlon and arbirmtlori procodure; (c) falls to respond to QSW's notice of a homeOWnbr's LOMplalnr rocodur+ns; BW for such (d) ;ails to comply with a decision which is rendered pursuant to complaint site It retelves e avrltten request from 4 (e) tails to provide adequate assurance to QBW within tan (10) Ys ftewilling n re and able to cooperate In assurance that (within a reasonable timetable &stabilshed or approved by QBW) It )s dispute settlement and to perform the obligations under eny decinln alp Is rd wh an ?ered pur rules osucregtrlgtlons of the in the aporation of the QBW Program (fj fails to otherwise cooperate QF3VV Program: fiance with this Agreatnant, as and when requested qY Ci6tr?1; (ch) moils to comply timely proof of comp (it) fails to comply with QBW Warranty Standards and building codes as stated In the i.irYtlied Warranty Agreement, (i) falls to comply with the enrollment procedures established by OBW fits otlons, Q} falls to provida proof that enrolled homes have keen subj0cted to required Pe (It) falls to respond to P ations withl professional competence Or conduct fits operations a m,a po ?on of flnandal (I) fails to perform Its obligations strength and stabiltty; name or company standing, {ln3rclal condition, or (rri)falls to notify CIB1N Wthln 30 days ofa change in ownership, company of any other material tact whlrb might affect Builder's ability to meet its obligationsunder this Agreement, (n) fortis to meet ethical standards In Its dealings with customers: or ticat(an or In the resFreen[ng process. (o) misstates or misrepresents any Information In connection with Its app termin ates of prima QBW reserves reinsta ret not In a aced o?to control tea atftll ry. terminated Builder If QBW determines that the terminated f n of Builder or p P i ®t to the W of Warranty Pr ra In ffiwl fat the date of termination, subject toe a pro Islons pertaining test v dabillty. Agreement rrlth not affect the dghLs or obligations of any of the parties to th rsspeot is the Warranty If a Builder Is suspended shall not use Its Logo orerofar to thin program in any way nor tadmpt to enroll any bone. nor offer the QBW Warranty and The Solider shah limtri termination and the Up n 'rsquest, Bulld r shall Immediately return to thee QBW Water ty P gram ha been withdrawn t m QBW e11 ll materials supplied by QBW and all materials making rafarQnCO to QBW,.Shou[d 8u1ld9rfaiil to take the9e steps, It znd ed, pay interest to QBW sufferthe shall Indemnify arid hold harmless QSVV end the insurer against any and all expensos Incurred Including but not limited to attorney fees, by either of them as a result, In addition, 13 so terminated by Builder or by rate lido pr annuall sums due to QDW hereundorif such this Agreement upon 30 days advgnce vvrltt nr notice to Ql3W. If0 days of demand by QBW. >3ulld?rr may terminate period it, w1,1cYr this QBW. Builder's obligations under this Agreement shall continua as to those homes enrolled during the p Agmernerrt was in effect.. this 7. Notice, f` QBW p,osGasses a reasonable belief that reason exists to terminate suspe ,,tlrittBuill er for ifvgBW elect to Agreement, QBW•may Immediately terminate of suspend the $ullder by providing suspand the Builder, such suspension wIII remain In effecl until Stlllder has cured all defects to 013W s satisfaction, however, QBVV reserves the right to terminate any suspended Sullder-esen Informa u, ya lic:ain ta rescreening a process or misstates or e misrepresents any Inf0ematloh In rthe anyrollment of atpartltular home ss or r in h process tome or falls to pay any fees due for enrollment of any partleular hosir$ or, tabs to forward an Ehrollm9nk f=orm for a partlcutar horse within 10 days as required, or falls to enroll all units of a multi-unit buiiding, SECTION C. 8UjQ3F_KS BBLIGAliONS= 1- Construction Obligations- Follo-Ing are the Strilde's obligations vdth r.-5p ads s aria t In program- Limited Warranty (a) Suiider shall construct all horses in conformity with the Warranty Standards proukiGd roved building Codes end other standards established by C]BW and In effect of Agreement, g of cr construction of ,rvtth app be to any homes constructed by Bulldar wb1rh Ei81W dst rsmine5 foescrow the beslts means of prof Mo with respect home. payments or of or ether r masse ? P 'High Risks", Co "d 8 S ct 1 500 0 --'80 wilt E3C agr'z 0s to (taU cll h5n1 ?> ITY `a, :jb ,cguucu =-y - c rrJ l?J overnman1;31 L evidence cf InaNr Clion as rnd t'vhun .. .rid by Onw. 013'a shall provida Inspe, r h211 sir Inspmlors. {c) 06W shill h3va the rlglrt to p?rfiorrrr spot (nspscll4ns to varlV`y Builder's cornpllance elfin this .?,grcarrrent and Lullurr agrees to cooparute. (d) The Builder .agrees to lndemnli and hold harrls $ QBW andlor its Insurer for any losses or damages QBW andlor L, insurer may suffer as a result of the uss of 'ire retardant treated ply'Vood on any.building enrolled under the Q0W `ten for and gpenses Ye r Warranty P sus. l This pay or t)eeliablel f r by ? liabnsiloityf anytInvestigation 9 erk ent or litiaatclnc i aCIMN ny 6airdior 31 o its ion v4 may action ?uhlclr may be raised, rnada or brought riur; to the pvi2nilel aifats reused or 1tke-?ly to be t-au,ed Uy us') zi the subjoct plyvioud- (s) if the Builder Is Informed by Q13W that it is building In an area designated as one with actlva soil conditions, the Builder a9i6as to obtain such soils inve-SArgations and reports as may be required by t3t31N. If such reports Indicate a reed for spsclal foundation design the Builder agrees to construct the foundation according to tha design of a registered professional engineer to take Into account the conditions disclosed by the soli tests. "Narr,Iuty Obligoti©ns. Builder agrees to perform all obllgntlons arlsing from thls Agreement and the Llmttgd Warranty Agreement, The Builder shall at 1t,5 man expense perform all obligations as set forth In the QBW Warranty Program and this Agreement which Indudoz meeting the wofranty Sandards upon notice from the Purchassrwithout the necessity of QBW intervention. During years one and two under the O$W Warranty Program. If the Builder falls or refuses to perform Its obiigetlons in atnr$ance with the Limited Warranty Agreoment or this Agreement, C18W will perform the Builder's obligations, howaver. the liBundar agrees, to reimburse QBVV and/or Insurer for sit mited to, cost of mate als, cost of collection, babor, architteect'sefees, ercnglneerfngoteeis and c ubnsel fees. Q13Wlag but not tirodfor trsurer reserve all rights of subrogation. During years three through ten under the QBW Warranty Program, 013W will perform Its obligations Leith rasped' to major structural dbrects as set forth and defined In the Limped Warranty Agreement without the sight of subrogation against the Bullder provided that the defect, or symptoms of the subsequent occurrence of the defect, ilrst.arose after the expiraibn of two years under the QBW War anty Program in effect fur that home, and that Builder did not attempt to conceal nr cosmetically repair the defect or symptoms of the subsequent occurrence of a dareet and that the defect does not arise from pulider's'fallu? to construct the home to applicable QBVV standards or adhere to Builder's responslbllltles under the Sulidar Agn3ement If the Builder repairs a major structural detect during years one or two, QSW must be notlfled. Once notllled. C18VVwill perform a compliance inspection. p Q13W In writing a provided that anyreforence to QBvL or its 1 st rer. whether m tractual of adveriising copy, be approved by i in 3dvance of its us$. ULIC IDN D- im1 ORMAL DISPUTE mocli?-ttURJE:.' - . '. t, Builder should be aware that the Limited Warranty Agreement provides for an informal dispute sehlernsnt and arbitraton prot,.WUM to resalve c?cjmplalnts by purchaser's underihe Limned Warranty Agreement. Builder should become-Mmliiarvrlth the settlement procetluras In order to be aware of its rights and responslbDllles. Builder agrees to cooperata fully In the procedure and to be bound by and to comply with any decision of an Independent third party, or arbitrator. It the Bultder falls to perform Its dbllg;atl4ns hereunder in a timely and good and workmanlik9 manner, such failure shall be considered to be a refusal to perform governed by paragraph 0,2 hereof. 2. The Builder agrees to pay alt fees charged In oannecllon with the Informal dlsputo settlemant and arbitration procadums, SECTION E, TERMS GOVERNING OPtr'RATION AND 1NTF aPRETAY0jh,7 to perform Its obllgntlons under this Agreement in a timely manner. However, time provided for performance Builder agrees of obligations heroundar shalt be extended by events not subject to control by the person obligated to perform, Such events Include acts of God, or the public enemy, or riot, civil commotion, or govemmenM conduct Descriptive headings as to the contents of particular prnuistons of this Agreement are Intended for rnnv©nlence only and are not to be considered In construing this Instrument-ionship s, This Agreement shall not constitute or be r-unsIdered an employees amployer?wnplnyea or ngents, shall{have helauthorilyttobind partrtership between the parties. None of the parties, nor anY of their or obligate the other party except as provided by this Agreamnnt. 4. Should any provisions of this Agreement, be determined by a court of cornpelant jurisdiction to be unenforceable; that detarmifiatlon will not affecrlbe validity of the ramaining provisions, 5. This Agreement shatl.bo Interpreted and enforced In accordance with the laws of the Commonwealth pf Pennsylvania. All salts Instituted under this Agroement shall be brought In Pennsylvania In a court of competent jurisdicton. Bullrier hereby eonsenis to the personal jurlsdictivn of the Pennsylvania courts. S. 13ulld®r shall not assign this Agreomentwlthout the prior wrilten consent of 08W, 7. This Agreement shall inure to the benefit of and bo binding upon the heirs, wecutors, admini.vtrators, assignee, and successors of the repreaentathe pariles, g. This instrument, and securlty documents and documents referred to or Incorporated herein by reference, contain the entire 00 "d 3S;LI S00Z 8 aaa 10 11 aem.Ent bat`?enn the parlies, and n mart, pral„ks6s, or Ii1dtjr6 ianLS mete .11 ;--Y 26Y modl[1°d, or that !$ not c.,nt3lned In INS EVri'16n contr ba vol[u or blrtcf{nc ; ;nd this t ont??. ! nol be erlargod, allarad exctpl In writing signed by the parties and en=iorsad hereon. Vulture of either party to losist upon cernplianc-9 v,,itit ziny provision of this AGrE©rnent she'll not ron5iltuto a -walvel- of tn3t provl5i0n. Alt notlcm required hereundor must ble In writing and sent by cerrillad mall, postage praPaid, retu ' rncelpt raquested, to 1ho recipient at lhn respective addross Indleated on the Iron,,, or to whateJer addrsss the par',f may designate In ,,biting. The eff.3ctlve dote of this Agroement shall be tho date of oxecut(dn by QG-W, ,f.Q't'N, RA By t.T. Date c; exacuilon by QUIV 12-13-2005 Bol!der's Registration NO. 17052 BU!LOSR Fa4stwood fioax-*% I" (Wamv of Bul)dor-gla"o prlnr or type) Dato By <-- SIgh Here ADDENDUM In consldorailon for receiving a reduced rate, Builder agrees to maintain It$' membership in the QUIN program for a period of 3 years to commence on the date thl5 addendum its axecuted by QSW, 5ulidur agrees to submlt for enrollment al) homes which Builder or any aftlilete constructs during this term and otty extensions. In exchange, Builder's rate will be s ,:L-15 ]per thousand. The addendum will ranew for like terms unless (30) days prior to the expOtl5n or the term, or any extensions: either party provides the other (30) days advance written notlee that they lntand not to e- to td the period entitling the bulidor to a lower rate. it BUIldEr provides nolice, QSW will adjust the Builder's rate upward eftact)ve at the end of the then currant term, BUILDER tBulldor--p14A9Bprint aYtypo) Date By fSlanutiSrn of Authorized Rnprol vritatlve ^77t1e) (Plotroo pelnL namaltltia oroaaeu2or) TtAt t'I CO>"O"t.A.TION 5 W 12-13-2005 Data Please note'ihBt In reviewing appilcants for the Q81N Program, certalrl costs are Incurred, therefore all application fees are non-refundable. ® copyright 19RO obOty Bul)tfcrv WWantV Cnrperntlon onW rQFgJ a SG M3 ,0'd 65:11 5002 0 380 '" (Plna?o 9rlht nRmcleklo of axacutoq VERIFICATION I, CINDY SHELLEMAN, Controller of Quality Builders Warranty Corporation, hereby certify and state that the factual allegations in the foregoing Plaintiff's Complaint is true and correct to the best of my knowledge, information and belief, and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Quality Builders Warranty Corporation Date: Ak?ert&r oy, 2oio By: ( ??- Cindy Shelleman, Controller ? P, v r IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA QUALITY BUILDERS WARRANTY Civil Action No. CORPORATION. Plaintiff. N'. EASTWOOD CONSTRUCTION CO., INC. and EASTWOOD HOMES, INC., Defendants AFFIDAVIT OF ALLEN M. NASON 1. Allen M. Nason, being drily sworn according to law, hereby deposes and says: I . I am General Counsel for Eastwood Construction. LLC. formerly known as Eastwood Construction Co., Inc., and Eastwood Homes. Inc. (hereinafter "Eastwood'') 2. This affidavit is based on my personal knowledge, information and belief and is submitted in support of Eastwood's Notice of Removal. 3. In my position as General Counsel, I am familiar with the number of homes constructed each year by Eastwood. I am also familiar with the amount of warranty fees paid by Eastwood to Quality Builders Warranty Corporation. 4. In 2010, Eastwood paid fees for enrolled bomes substantially in excess of $75.000. These fees are based upon the number of homes constructed. 5. Eastwood does not anticipate that there will be a material change in the number of homes constructed by either Eastwood Construction, LLC or Eastwood Homes, Inc. during 2011 or 2012. !LOa29173Ai 6. 1 have read this affidavit and affirm under oath that all statements in it are true to the best of my knowledge and belief. Allen Nason, Esquire Subscribed and sworn to before me this ? day of 2010 in the State of North Carolina. My Commission expires: Notary Public .. N;ts SEAL: J ry'y F• •L Y'?' .tom JI 'rya '),0429173.11 a;r ??? J =t t November 4, 2010 __ bl tc lti ` SENT VIA CERTIFIED MAIL: #7004 1350 0003 0402 9015 Eastwood Construction Co, Inc. 2857 Westport Road Charlotte, NC 28208 Dear Sir: Please find enclosed for Service, a suit filed in the Court of Common Pleas of Cumberland County, Pennsylvania on November 4, 2010. Sincerely, John A. (3111, Esquire General Counsel Enclosure X-€ 325 North Second Street, Wonnleysburg, PA 17043 ' ri _y F ph: 717.7371?522 - fix: 717.737.4285 wNvw.gbwc.com 4 ???II?? /?'" PYS511 Cumberland County Proihonotary's Office Civil Case Prnt Page 1 2010-07008 QUALITY BUILDERS WARRANTY (vs) EASTWOOD CONSTRUCTION CO INC Filed........: 11/04/2010 Reference No..: ime . . . . • . • . •. 12:09 Case Type.....: CONTRACT - EMPLpOpYMENT TExecution Date 0/00/0000 Judgment......: .. Judge Assigned: Jury Disposed Trial. Date. 0/00/0000 Disposed De-sc.: ------------ Higher Crt 1.: __________-Case Comments - Higher Crt 2.: ttorney Info General Index QUALITY BUILDERS WARRANTY PLAINTIFF GILL JOHN A CORPORATION 325 NORTH WORMLEYSBURGCPAD 17043T EASTWOOD CONSTRUCTION CO INC DEFENDANT 2857 WESTPORT ROAD CHARLOTTE NC 28208 EASTWOOD HOMES INC DEFENDANT 2857 WESTPORT ROAD CHARLOTTE NC 28208 ******************************************************************************** * Date Entries - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 11/04/2010 COMPLAINT - BY JOHN A GILL ATTY FOR PLFF _______ ------------------- --------------- -------------------------- 11/15/2010 AFFIDAVIT OF SERVICE BY MAIL - COMPLAINT UPON DEFT - BY PEGGY MORRISON SECRETARY ---------- ___ _ ----------- ---------------------- ------------------------------- 11/15/2010 AFFIDAVIT OF SERVICE BY MAIL - COMPLAINT UPON DEFTS - BY PEGGY MORRISION SECRETARY - - _ _ LAST ENTRY - - - - - - - - - - - ******************************************************************************** * Escrow Information End Bal * Fees & Debits Beg Bal Pmts/Ad ******************************** ******** ****** ******************************* COMPLAINT 55.50 55.00 .00 .00 TAX ON CMPLT g 00 8.00 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION JCP FEE 23.50 23.50 .00 ------------ .00 -_----92.00-------92.00 ******************************************************************************** * End of Case Information ******************************************************************************** T";;? "RDA KONO CAK ? 2010 t?flV t 5 P!? 2:39 VUMB SKSY L'AANIATY P QUALITY BUILDERS WARRANTY CORPORATION Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 10-7008 V. EASTWOOD CONSTUCTION CO. INC AND EASTWOOD HOMES, INC. CIVIL ACTION Defendants AFFIDAVIT OF SERVICE BY MAIL On November 4, 2010, I mailed a true and correct copy of the Complaint by certified mail, return receipt requested to, Eastwood Homes, Inc., Article #7004 1350 0003 0402 9022, at their address. Eastwood Homes, Inc. received the Complaint on November 8, 2010, as indicated by the receipt attached hereto as Exhibit "A". I make these statements pursuant to 18 Pa.C.S. 4904 relating to unworn falsification to authorities and understand that false statements may be subject me to criminal penalties under that statute. J Z- Q-A L Pe rrison, Secretary * . . nu ru 0 tr C3 0 pto• s / -3y m o CaAleed Fes 0 0 PA t M Rapt f.. (Enttaaaorark Rngttlrw) .Z . 0 R -- DOMMY Fee m (Eidmm.wK R. pAW)) 'a Totd P~& Fees $ O To o i ¦ Ccmphts Items 1, 2, and 3. Also c n plots Item 4 N Restricted DWWY is doolmd. ¦ PrM your name and address on the wism so that"cars rahm the card to you. ¦ Attech this card to the tuck of the ma"xx, or on the front H space permits. 1. Aracle Addressed to: L A. Apad a Raodved by PlIft Acrd C. ' ' I $ (I D. lidMwry eo of - I fmm Wn 1? 0 Ym N YES, enter d@Wwy addreaa babes. y6ft S Savo ty00 Or, atrl.d and o t*rne and O R.piwed 11 AM= Raoalpt for Mactrardhe O km&W Mal O C.O.D. r. Radrbbd Ddmyl P?ftFay O YM 2' ArWo (rhrwlrham nsarvrwNDeiD 7004 1350 0003 0402 9022 PS Form 3811, Fewuwy =4 Dm m* RtAan mooso i GLdZ,t?aerd ]Vv L . aas7 &tr . o?rulor Poetmerk Hors Ol,V-O EXHIBIT A r 11-??j'Gi 1' il.C 3 .THP PROTHONOTARY 2010 HOV 15 PM 2' 10 U PE14NSYLOVAN A OUI'T'I' QUALITY BUILDERS WARRANTY CORPORATION Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 10-7008 v. EASTWOOD CONSTRUCTION CO. INC.: CIVIL ACTION AND EASTWOOD HOMES, INC. Defendants AFFIDAVIT OF SERVICE BY MAIL On November 4, 2010, I mailed a true and correct copy of the Complaint by certified mail, return receipt requested to, Eastwood Construction Co., Inc., Article #7004 1350 0003 0402 9015, at their address. Eastwood Construction Co., Inc. received the Complaint on November 8, 2010, as indicated by the receipt attached hereto as Exhibit «A„ I make these statements pursuant to 18 Pa.C.S. 4904 relating to unworn falsification to authorities and understand that false statements may be subject me to criminal penalties under that statute. I ?'?- ?M.+?.aY1 P rrison, Secretary a 0 rr o IAL US -' C3 sn m 0 CwWNd Fes C3 !4?nn m \. Ja Tbtd PoeMps 6 Fens .$ 'S9 S 3 -404t or---MWZo? 4 ¦ OWO M roem.1, 2, and & Also oornplete - Item 4 K Restricted Ddvwy is de.ired. ¦ PA t your name and addnm on the mverm ao that wee oar, realm the card to you. ¦ Attach this card to the beck of the malapleoe, or on the borrt If apace pwffft 1. Artlole Addressed to: &.1`.? - » C1a - .7ewr ,6 A. Agent IL Rsodvsd by (Fftd Mwo Ci pp? DnMsry S rw ! r?/j D- Is ddymy sddre, dttuait Iron, hem 17 Yes U YES, antsy dsMrery eddrees below: A1510 a 8ervb.,ype -- o onrubd mall C7 &ppm Meh 0 RepYMed 0 PAhm, R.o.rvt for Mwdwrxln CI IrmmW Moo 0 C.O.D. 4. Rsstrtolsd D*isrt? /area F** E3 Visa 2. Article N,snbsr (?lar?arY?aanaenroe404 7004 1350 0003 0402 9015 `PS Form 3411, f+bnt¦f? 2004 Darrs.ec ner..,, ftoa*t ,oxseso¢+r?,aro EXHIBIT A ?1??'3?? IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA QUALITY BUILDERS WARRANTY Civil Action No. CORPORATION. Plaintiff, V. EASTWOOD CONSTRUCTION CO., INC.: and EASTWOOD HOMES, INC., Defendants CONSENT FOR REMOVAL 1, Bridget Montgomery, Counsel for Eastwood Construction, LLC, formerly known as Eastwood Construction, Co., Inc. and Eastwood Homes, Inc., hereby certify that I represent both Defendants and that on behalf of behalf of each Defendant Allen Nason, General Counsel for both Eastwood entities, has consented to the removal to this Court of the above-referenced action. Civil Action No. 10-7008, pending in the Court of Common Pleas of Cumberland County, Pennsylvania. The separate consents for each Defendant are attached hereto. Bridget Mo gomer 'Esqui Eckert Seamans Cherin & Mellott, L 213 Market Street, 8th Floor Harrisburg, PA 17101 bmontgomery car eckertseam ans. com Telephone: 717-237-6054 Counsel for Defendants Eastwood Construction, LLC, formerly known as Eastwood Construction, Co.. Inc. and Eastwood Homes, Inc. December 7. 2012 IL0429261.1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA QUALITY BUILDERS WARRANTY Civil Action No. CORPORATION. Plaintiff, v. EASTWOOD CONSTRUCTION CO., INC. and EASTWOOD HOMES, INC., Defendants CONSENT FOR REMOVAL 1. Allen Nason. General Counsel for Eastwood Construction, LLC, formerly Eastwood Construction Co., Inc., hereby provide consent for removal of the above-referenced action. Civil Action No. 10-7008, pending in the Court of Common Pleas of Cuiniberland County, Pennsylvania. ,o this Court. f ?l Allen Nason, Esquire General Counsel Eastwood Construction. LLC, formerly known as Eastwood Construction Co., Inc. 2857 Westport Road Charlotte, North Carolina 28208 anason @?eastwoodhomes.com December 7, 2012 I 1 04 '_9) 4S. 1 4 r IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA QUALITY BUILDERS WARRANTY Civil Action No. CORPORATION, Plaintiff. V. EASTWOOD CONSTRUCTION CO., INC. and EASTWOOD HOMES, INC., Defendants CONSENT FOR REMOVAL 1. Allen Nason. General Counsel for Eastwood Homes, Inc., hereby provide consent for removal of the above-referenced action, Civil Action No. 10-7008, pending in the Court of Common Pleas of Cumberland County, Pennsylvania. to this Court. Allen Nason, Esquire General Counsel Eastwood Homes, Inc. 2857 Westport Road Charlotte. North Carolina 28208 anasoneasrivoodhomes.com December 7. 2012 ;L04292501