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HomeMy WebLinkAbout11-6698WEIR & PARTNERS LLP By: Daniel D. Haggerty, Esquire Attorney ID No. 77894 The Widener Building, Suite 500 1339 Chestnut Street Philadelphia, PA 19107 dhaggerty@weirpartners.com P: (215) 665-8181 F: (215) 665-8464 OF TH'PE PROTHONOTARY 2011 AUG 23 PM 2: 06 CUMBERLAND COUNTY PENNSYLVANIA Attorneys for Narberth Property Acquisition, LLC NARBERTH PROPERTY ACQUISITION, LLC : COURT OF COMMON PLEAS 732 Montgomery Avenue Narberth, PA 19072 Plaintiff, V. NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP 732 Montgomery Avenue Narberth, PA 19072 Defendant. CUMBERLAND COUNTY CIVIL ACTION NO. NOTICE TO DEFEND 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 GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION AVISO Le han demandado a ustted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta a sentar una comparencia escrita o en persona o con un abogado y entregara la cortte en forma escrita sus defensas o sus objeciones a las d mandas en contra de su persona. Sea a visado que si usted no se defiende, la corte tomara medidas y puede continuar la demands en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta de manda. Usted puede perder dinero o sus propiedades o otros de rechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IN MEDIATAMENTE SI NO TIENE ABOGADO 00 SI NO TIENE EL DINEROSUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUY DIRECCION X4`4.2.00 ?t e?Crf 5Y'?9 ? itz- a 4. 3 ?'? y ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association Cumberland Law Journal 32 South Bedford Street Carlisle, PA 17013 Telephone: 717-249-3166 SE ENCUENTRA ESCRITA ABAJO PARA AVERICUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Asociacion de Licenciados de Filadelfia Servicio de Referencia a Informacion Legal 32 South Bedford Street Carlisle, PA 17013 Telephone: 717-249-3166 2 WEIR & PARTNERS LLP By: Daniel D. Haggerty, Esquire Attorney ID No. 77894 The Widener Building, Suite 500 1339 Chestnut Street Philadelphia, PA 19107 dhaggerty@weirpartners.com P: (215) 665-8181 F: (215) 665-8464 Attorneys for Narberth Property Acquisition, LLC NARBERTH PROPERTY ACQUISITION, LLC COURT OF COMMON PLEAS 732 Montgomery Avenue CUMBERLAND COUNTY Narberth, PA 19072 Plaintiff, V. NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP 732 Montgomery Avenue Narberth, PA 19072 Defendant. CIVIL ACTION NO. COMPLAINT IN MORTGAGE FORECLOSURE Plaintiff, Narberth Property Acquisition, LLC, by and through its undersigned counsel, hereby brings this complaint in mortgage foreclosure to foreclosure upon a mortgage on real property located in Shippensburg Township, Cumberland County, Pennsylvania and says: 1. Narberth Property Acquisition, LLC ("Narberth") is holding company for Royal Bank America organized and existing under the laws of the Commonwealth of Pennsylvania, with an office located at 732 Montgomery Avenue, Narberth, Pennsylvania 19072. 2. Royal Bank America, is a Pennsylvania banking corporation with its principal place of business at 732 Montgomery Avenue, Narberth, Pennsylvania 19072 (the "Bank"). _ a 3. Shippensburg Apex, LP ("Apex") is a Pennsylvania limited partnership with its principal place of business at 401 East Elm Street, Conshohocken, Pennsylvania 19428. 4. On or about October 26, 2007, Apex executed and delivered to the Bank, a Promissory Note (the "Note"), evidencing a loan extended to Apex by the Bank in the principal amount of $16,667,015 (the "Loan"). A true and correct copy of the Note is attached hereto as Exhibit "A". 5. To secure payment of the Loan, Apex executed and delivered to the Bank a mortgage dated October 26, 2007, which was duly recorded of record on November 8, 2007, in the Office of the Recorder of Deeds, Cumberland County, at Instrument No. 200742316 (the "Mortgage"). A true and correct copy of the Mortgage is attached hereto as Exhibit "B". (The Note and the Mortgage, in addition to any and all documents or instruments executed or created in connection with the Loan, shall sometimes be collectively referred to herein as the "Loan Documents.") 6. The Mortgage was executed in favor of the Bank, and granted a mortgage lien to the Bank upon the premises commonly known as Rocktowne at Shippensburg, a commercial property, more fully identified in the Mortgage, including all improvements thereon (the "Mortgaged Property") 7. The Mortgaged Property, which is more fully described in the Mortgage, includes: ALL THAT CERTAIN tracts of land situate in Shippensburg Township, Cumberland County, Pennsylvania, as shown on a Subdivision Plan for G & C Associates for Apex Village, by Fischbach Morgan & Associates, R.S. dated August 10, 2006, recorded in Cumberland County Recorder of Deeds Office Plan Book 93, Page 60, being designated as Lot 7, more particularly bounded and described as follows: 2 I A BEGINNING at a point on the southwestern edge of Asper Drive; thence by other lands of Grantors North 43 degrees 12 minutes 00 seconds West a distance of 581.53 feet to an iron pin to be set at the corner of the storm water basin North 47 degrees 18 minutes 16 seconds East a distance of 290.31 feet to an iron pin to be set; thence continuing by the edge of the storm water basin North 43 degrees 13 minutes 31 seconds West 215.75 feet to a point at lands nor or formerly of Conrail Lurgan Branch Railroad; thence along said Conrail Railroad lands North 76 degrees 48 minutes 08 seconds East a distance of 106.35 feet to a point; thence continuing by said Conrail Railroad property North 79 degrees 38 minutes 43 seconds East a distance of 306.07 feet to a point; thence along other lands of G & C Associates South 42 degrees 44 minutes 58 seconds East a distance of 581.17 feet to a point; thence by other lands of G & C Associates on the southeastern Asper Drive South 47 degrees 18 minutes 23 seconds West a distance of 634.90 feet to an existing iron pin, the point and place of BEGINNING. CONTAINING 9.388 acres, more or less and being all of Lot 7. BEING a portion of the real estate which Galen S. Asper and Jeannette A. Asper, by their attorney in fact by deed dated July 30, 1992 and recorded in Cumberland County Deed Book "L" Volume 36, Page 809, granted and conveyed to H. Scott Garling and Michael J. Cassidy, co-partners, t/d/b/a G & C Associates. H. Scott Garling died July 29, 1994. Letters of Administration were issued to Barbara L. Garling on August 8, 1994, by the Cumberland County Register of Wills. By specific provision of the Partnership Agreement between H. Scott Garling and Michael J. Cassidy, the personal representative of a deceased partner, succeeded to the interest of the deceased partner and continued to conduct partnership business. Barbara L. Garling previously elected to succeed to the interest of the deceased partner, but has since withdrawn from the partnership. Julie A. Cassidy became a partner and joined in the deed of conveyance with Michael J. Cassidy as Grantors to Educational Property Group, Inc. The parties who executed the deed of conveyance were all of the partners of G & C Associates, and their deed of conveyance was approved in accordance with the requirement of the Partnership Agreement. BEING Tax Parcel Number: 36-35-2385-131 8. By way of an Assignment of Mortgage dated June 29, 2010, which was duly recorded of record on July 6, 2010, in the Office of the Recorder of Deeds, Cumberland County, 3 at Instrument No. 201017880 (the "Assignment"), the Bank assigned its rights under the Mortgage to Narberth. A true and correct copy of the Assignment is attached hereto as Exhibit «C„ 9. On or about June 27, 2010, Narberth took title to the Mortgage Property from Apex by way of a Deed in Lieu of Foreclosure, which was duly recorded of record on July 12, 2010, in the Office of the Recorder of Deeds, Cumberland County, at Instrument No. 201018539 (the "Deed"). 10. Under the terms of the Deed, Narberth preserved its rights under the Mortgage to file the present foreclosure action. A true and correct copy of the Deed in attached hereto as Exhibit "D". 11. Apex is in default under the terms of the Mortgage, in that Apex has failed to comply with or perform the obligations under the terms and provisions of the Loan documents despite demand therefore. 12. As of August 12, 2011, Apex is indebted to Plaintiff under the terms of the Loan as follows: Principal $16,067,681.94 Interest Accrued to Payoff Date $ 629,011.54 TOTAL REAL DEBT: $16,696,693.48* *Plus attorneys' fees, costs, and continuing interest. 13. In addition, interest continues to accrue on principal at the per diem rate of $1,313.09, plus attorneys' fees and costs. WHEREFORE, Plaintiff demands judgment in mortgage foreclosure in its favor and against Narberth Property Acquisition, LLC, in the amount of $16,696,693.48 plus per diem 4 interest of $1,313.09, plus attorney's fees, costs of suit, expenses, and costs for foreclosure and sale of the Mortgaged Property. WEIR & PARTNERS LLP By: Attorneys fof-N'arberth Property Acquisition, LLC Dated: August 23, 2011 VERIFICATION I, Daniel D. Haggerty, hereby verify that I am the attorney for Plaintiff, Narberth Property Acquisition, LLC, and that I am authorized to make this verification on its behalf, and that the facts set forth in the foregoing Complaint in Mortgage Foreclosure are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. Dated: August 23, 2011 PROMISSORY NOTE $16,667,015.00 October 26, 2007 FOR VALUE RECEIVED, and intending to be legally bound hereby, SHIPPENSBURG APEX, LP, a Pennsylvania limited partnership .Hereinafter called "Maker"), promises to pay to the order of ROYAL BANK AMERICA, a Pennsylvania banking corporation (hereinafter called "Bank"), the sum of Sixteen Million Six Hundred Sixty-Seven Thousand Fifteen and 00/100 Dollars ($16,667,015.00) (or so much thereof as may be disbursed pursuant to the Loan and Security Agreement of even date herewith between Maker and Bank), with interest as hereinafter provided on the unpaid principal balance until paid; lawful money of the United States of America in immediately available funds, without setoff or defalcation, at the offices of Bank at 732 Montgomery Avenue, Narberth, Pennsylvania 19072 or such other address as Bank may designate by written notice to Maker. p DEFINITIONS: For purposes of this Note, the following terms shall have the meanings ascribed to them below (with any capitalized term used herein without separate definition. to have the meaning ascribed to such term in the Loan and Security Agreement of even date herewith between Maker and Bank): "Business .Day" shall mean any day other than a Saturday, Sunday or other day on which commercial banks in the Commonwealth of Pennsylvania are authorized or required to be closed under the laws of the Commonwealth of Pennsylvania and, if the applicable day relates to any borrowing to which LIBOR applies, such day must also be a day on which dealings in Dollar deposits are also carried on in the London interbank market and banks are open for business in London. "LIBOR" shall mean, for any day, the rate (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the composite London Interbank Offered Rate for one month United States Dollar deposits which appears on the Telerate British Bankers Association LIBOR Rates Page (or on any successor to or substitute for such Page providing rate quotations comparable to those currently provided on such Page, or if there shall no longer exist a Telerate British Bankers Association LIBOR Rates Page or no such rate is published or available at such time for any reason, a comparable replacement rate determined by Bank in accordance with its usual procedures) at approximately 11:00 a.m., London time, on the day that is (i) the date hereof in calculating the interest rate for the period from the date hereof through and including October 31, 2007, and (ii) two (2) Business Days preceding the first day of the month in which such day occurs, or if such day is not a Business Day, then the immediately preceding Business Day, in calculating the interest rate from and after November 1, 2007.. As used herein, "Telerate British Bankers Association LIBOR Rates Page" means the display designated as Page 3750 on the Telerate System. INTEREST: The unpaid balance of the loan evidenced by this Note (the "Loan") shall bear interest at a rate per annum equal to the sum of (A) LIBOR lp tM (B) two hundred seventy-five (275) basis points. Upon Maker's obtaining a certificate of occupancy with respect to the improvements from the governmental authority having jurisdiction over the Real Property, the interest rate will adjust to the sum of (A) LIBOR plus (B) two hundred fifty (250) basis points. Such rate shall be reset as of the'first day of each calendar month during the term of this Note commencing November 1, 2007. PHLLI6.2120909.2-CL14EFFLE 1026107 817 AN Interest shall be calculated on the basis of a 360 day year by multiplying the interest rate in effect by a fraction, the numerator of which is the actual number of days in the current billing period and the denominator of which is 360. If Bank determines (which determination shall be final and conclusive) that, by reason of circumstances affecting the eurodollar market generally, deposits in dollars (in the applicable amounts) are not being offered to banks in the eurodollar market for the selected term, or adequate means do not exist for ascertaining LIBOR, then Bank shall give notice thereof to Maker. Thereafter, until Bank notifies Maker that the circumstances giving rise to such suspension no longer exist, the interest rate for all amounts outstanding under this Note shall be converted at the next rate reset date to a comparable interest rate determined by Bank exercising reasonable commercial judgment. In addition, if, after the date of this Note, Bank shall determine (which determination shall be final and conclusive) that any enactment, promulgation or adoption of or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by a governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Bank with any guideline, request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for Bank to make or maintain or fund loans based on LIBOR, Bank shall notify Maker. Upon receipt of such notice, until Bank notifies Maker that the circumstances giving rise to such determination no longer apply, the interest rate on the outstanding balance of the Loan shall be converted to a comparable interest rate determined by Bank exercising reasonable commercial judgment either (i) on the next rate reset date if Bank may lawfully continue to maintain indebtedness based on LIBOR to such day, or (ii) immediately if Bank may not lawfully continue to maintain indebtedness based on LIBOR. PAYMENT TERMS: The principal sum and interest shall be paid by Maker to Bank as follows: A. Interest Only With Principal At Maturity: Interest shall be due and payable commencing on December 1, 2007, and continuing on the first day of each month thereafter until the indebtedness evidenced hereby has been paid in full. Any outstanding principal and accrued interest shall be due and payable in full on November 1, 2010 (the "Maturity Date"). B. Renewal Term: Maker shall have the privilege of extending the Maturity Date for two successive periods of twelve (12) months each (the "Renewal Terms"), provided (i) Maker shall give Bank at least sixty (60) days prior written notice of Maker's election to extend; (ii) Maker is not then and has not previously been in default under the Loan Documents (as hereinafter defined); and (iii) Maker shall pay to Bank at the time of Maker's exercise of each extension option, an extension fee in an amount equal to one-half of one percent (1/2%) of the aggregate of (a) the amount of the Loan outstanding and unpaid as of the date Maker provides Bank with notice of its election to exercise its extension option, plus (b) the amount of the Loan which is unfunded as of such date. Maker hereby authorizes Bank to charge Maker's deposit account at Bank for any payment when due hereunder. Payments received will be applied to charges, fees and expenses (including attorneys' fees), accrued interest and principal in any order Bank may choose, in its sole discretion. Maker agrees to pay Bank a prepayment fee in the event prepayment is made at any time during the ten, of this Note in whole or in part for any reason and whether or not such prepayment is voluntary. The fee shall be three percent (3%) of the amount prepaid. Said fee shall be due and payable at the time prepayment is made and prior to satisfaction of any Loan -2- Documents (as hereinafter defined). Any such prepayment shall be applied to installments due hereunder in the inverse order of their maturity. If any payment hereunder is not paid when due and continues unpaid for a period of six (6) days thereafter, Maker agrees to pay to Bank, in addition to all amounts of principal and interest, a late charge of five cents ($.05) for each one dollar ($1.00) so overdue, or such lesser late charge as may be required by law, but in no event shall the late charge be less than $25.00. The late charge is imposed for the purpose of defraying the Bank's expenses incident to the handling of delinquent payments and is in addition to, and not in lieu of, the. exercise by Bank of any rights and remedies hereunder, under the other Loan Documents or under applicable laws, and any fees and expenses of any agents or attorneys which Bank may employ. In order to secure payment of this Note and all other obligations of Maker to Bank presently existing or hereafter arising or incurred (collectively, the "Obligations"), Maker hereby pledges to Bank and grants to Bank a security interest in and a continuing lien and right of setoff against, all property (real and personal, tangible and intangible) owned by Maker or in which Maker has any interest or any power of pledge, hypothecation or other disposition, which Bank shall have in its possession or control (including items in transit to Bank) at any time for any reasons whatsoever, including, but not limited to monies, deposit accounts, stocks, bonds, securities, mortgages, judgments, security interests, chattel paper, accounts, accounts receivable, contract rights, general intangibles, insurance policies, instruments, documents, motor vehicle titles, real estate, fixtures, goods, chattels, merchandise, inventory, equipment and all other items of like kind and type and all additions and accessions thereto and all proceeds therefrom (hereinafter called "Collateral"). The Bank shall have no duty or obligation with respect to the Collateral. Maker agrees to comply with each and every covenant, condition and term set forth in this Note as well as all other documents (collectively, the "Loan Documents") given by Maker or any other Obligor (as hereinafter defined) to Bank and agrees that any default under any of the other Loan Documents shall also be an Event of Default hereunder. The terms and provisions of the other Loan Documents are incorporated herein by reference. As used herein, the term "Obligor" means any Maker and any Guarantor, and the term "Guarantor" means any guarantor or surety of the Obligations of Maker to Bank existing on the date of this Note or arising in the future. Bank shall have the right at Makers expense to audit Maker's books and records periodically including access to accounts receivable and payable as well as executory contract records. Maker agrees to provide Bank and to cause any Obligor to provide Bank with periodic financial statements as requested from time to time by Bank in form satisfactory to Bank. Upon the occurrence of any of the following events, each of which shall constitute an "Event of Default" hereunder, the entire unpaid amount of principal and interest hereunder shall at the option of Bank become immediately due and-payable, together with the prepayment fee described above (if any), without notice or demand: (a) if payment of principal or interest, as aforesaid, is not paid when due, and continues unpaid for a period of five (5) days after written notice from Bank to Maker (provided that Bank shall not be required to provide such notice more than once in any twelve month period, and -after once giving such notice in any twelve month period the failure of Maker to make any such payment for a period of five (5) days after the due date shall constitute an Event of Default); or (b) a default under any instrument or agreement evidencing and/or securing any other obligation of any Obligor to Bank; or (c) if any Obligor is unable to pay its debts as they mature or if any Obligor becomes insolvent or shall voluntarily suspend transaction of its business or operations; or (d) if any Obligor shall make an assignment for the benefit of creditors or file a voluntary petition to reorganize or to effect a plan or other arrangement with creditors or apply for or consent to the appointment of a receiver or trustee of -3- all or part of its property, or (e) if any Obligor shall file an answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed pursuant to the United States Bankruptcy Code, as amended, or shall be adjudicated a bankrupt; or (f) if an order shall be entered approving an involuntary petition to reorganize any Obligor or to effect a plan or other arrangement with its creditors, or appointing a trustee or receiver of all or part of its property; or (g) if any Obligor shall institute liquidation, dissolution, merger or consolidation proceedings; or (h) if any Obligor dies or is incarcerated, or is adjudicated legally incompetent; or (i) if there is entered against any Obligor a judgment, levy or lien or if a writ or warrant of attachment, execution, garnishment, distraint, possession, or any similar process. shall be issued by any court against all or a part of the property of any Obligor; or 0) if there is a taking of possession of a substantial part of the property of any Obligor at the instance of any governmental authority; or (k) if any Obligor fails to pay any income, excise, or other taxes of any nature whatsoever prior to the time that they become delinquent; or (1) if any information or signature heretofore or hereafter furnished to Bank by any Obligor in connection with any Obligations is materially false or incorrect; or (m) if any Obligor fails to timely furnish to Bank such financial and other information as Bank may reasonably request or require; or (n) if any Obligor fails to perform or comply with any agreement with Bank or to pay any obligation whatsoever to Bank when due; or (o) if Bank, in view of circumstances which in its commercially reasonable judgment it considers adequate, believes that the credit of any Obligor has become impaired or that a material adverse change has occurred in the financial condition of any Obligor. After an Event of Default, interest shall continue to accrue and be payable on demand at a rate equal to three percent (3%) per annum in excess of the contracted interest rate which would otherwise be applicable under this Note but not more than the maximum rate allowed by law (the "Default Rate"). The Default Rate shall apply retroactively to the first such Event of Default and shall continue until all Events of Default have been cured. Such interest shall accrue notwithstanding the entry or opening of any judgment and shall be added to and become part of the Obligations. Upon the occurrence of an Event of Default hereunder, Bank shall have all rights and remedies provided under all applicable law and shall be deemed to have exercised the same immediately upon the occurrence of any such event without notice or future action, irrespective of when any record of the same may thereafter be entered on Bank's books and Bank shall have and may exercise as to the Collateral all rights and remedies provided under the Uniform C ommercial Code of Pennsylvania and under all other applicable laws; and Bank shall have the right Bank iimnme iately and without further action by it, to setoff against this Note all money owed by any capacity to Maker, whether or not due, and also to setoff against all other obligations of Maker to Bank all money owed by Bank in any capacity to Maker, and Bank shall be deemed to have exercised such right of setoff and to have made a charge against any such money immediately upon the occurrence of such default even though such charge is made or entered on the books of Bank subsequent thereto. In addition thereto Bank may sell. all or any part of any Collateral at private or public sale without advertisement or notice to or demand upon Maker or any other Obligor, or upon seven (7) days notice, if notice is required, and Bank may purchase the same or any part thereof at any such sale free of all trusts, claims or equity of redemption. Bank shall not be required to resort to any particular security or persons to enforce payment and Bank shall not be subject to any marshaling requirements or equities among the person(s) designated as Maker or among any other Obligors. No waiver of any default hereunder shall be construed as a waiver of any subsequent default, and the exercise of any right hereunder shall not waive the right to exercise such right thereafter. -4- Maker does hereby authorize and empower the prothonotary or clerk or any attorney of any court of record, following the occurrence. of an Event of Default, to appear for and to CONFESS AND ENTER A JUDGMENT OR JUDGMENTS against Maker .or any one of them, in favor of Bank, its successors and assigns, and any other holder hereof, for which this, or a true copy hereof, shall be a sufficient warrant: (a) for such SUMS as are due and/or may become due under this Note and the other Loan: Documents, and/or (b) in any action of replevin instituted by Bank to obtain possession of any Collateral securing any of the Obligations, with interest at the Default Rate as above provided and. the prepayment fee described above (if any), with fifteen percent (15%) thereof added for collection fees, and with costs of suit, at any one or more times after this Note becomes due, with or without declaration filed with release of all errors, and without stay of execution; and does hereby waive and release all relief. from any and all appraisements, stay, exemption and homestead laws of any state, now in force or hereafter passed, and any right to except to, strike off, appeal from or open any judgment so entered; and further does waive the right of inquisition on any real estate that may be levied upon to collect this Note, hereby voluntarily condemns the same and authorizes the entry upon the writ of execution of such voluntary condemaation, and agrees that such real estate may be sold on a writ of execution. MAKER FURTHER WAIVES ALL RIGHT TO PRIOR NOTICE AND HEARING BEFORE ENTRY OF JUDGMENT: If a copy of this Note, verified by affidavit by Bank or someone on behalf of Bank, shall have been filed in such action, it shall not be necessary to. file the original Note as a warrant of attorney. The authority and power to appear for and CONFESS JUDGMENT against .Maker, shall not be exhausted by the initial exercise thereof and may be exercised as often as Bank shall find it necessary and desirable and this Note shall be a sufficient warrant therefor. Bank may CONFESS one or more JUDGMENTS in the same or different jurisdictions for all or any part of the Obligations, without regard to whether JUDGMENT has theretofore been CONFESSED on more than one occasion for the same obligations. in the event any JUDGMENT CONFESSED against Maker is stricken or opened, upon application by or on Maker's behalf for any :reason, Bank is hereby. authorised and empowered to again. appear for and CONFESS JUDGMENT against Maker for any part or all of the Obligations, as provided for herein, if doing so win cure any errors or defects in such prior proceedings. MAKER (ON BEHALF OF ITSELF AND ALL OBLIGORS) AND BANK (BY ITS ACCEPTANCE HEREOF) KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE ANY AND ALL RIGHTS SUCH PARTIES MAY HAVE TO A, TRIAL BY JURY. MAKER (ON BEHALF OF ITSELF AND ALL OBLIGORS) ALSO KNOWINGLY, VOLUNTARILY,,.INTENTIONALLY, AND IRREVOCABLY WAIVES ANY AND ALL RIGHTS WHICH MAKER MAY HAVE TO RAISE COUNTERCLAIM IN CONNECTION WITH ANY LITIGATION ARISING OUT OF THIS NOTE OR THE LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF BANK AND/OR ANY OBLIGOR OR IN. ANY LITIGATION IN ' WHICH ANY OBLIGOR AND BANK ARE ADVERSE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK'S GRANTING THE LOAN(S) SUBJECT TO THIS NOTE. If any provision of this Note shall for any reason be held to be invalid or unenforceable, such provision shall not affect. any other pro vision of this Note that can be given effect without such provision and this Note shall be construed contained herein. as if such provision has never been -5- All agreements between Maker and Bank are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration of maturity of the indebtedness evidenced hereby or otherwise, shall the amount paid or agreed to be paid to Bank for the use or the forbearance of the indebtedness evidenced hereby exceed the maximum rate permissible under applicable law. As used herein, the tern "applicable law" shall mean the law to effect as of the date hereof; provided, however, that in the event there is a change in the law which results in a higher permissible rate of interest, then this Note shall be governed by such new law as of its effective date. If, under or from any circumstances whatsoever, fulfillment of any provision hereof or of any of the Loan Documents at the time of performance of such provision shall be due, shall involve transcending the limit of such validity prescribed by applicable law, then the obligation to be fulfilled shall automatically be reduced to the limits of such validity; and if, under or from any circumstances whatsoever Bank should ever receive as interest an amount which would exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of the principal balance evidenced hereby and not to the payment of interest. This provision shall control every other provision of all agreements between Maker and Bank. This Note shall be binding upon the undersigned and their respective heirs, personal representatives, successors and assigns, and the benefits hereof shad inure to the benefit bf Bank and its successors and assigns. If this Note is executed by more than one party, it shall e the joint and several obligations of all such parties and the word "Maker„ whenever used herein shall be construed to mean each of the persons or entities who have executed this Note. In the event that Bank engages an attorney to represent it in connection with (1) any alleged default by any Obligor under any.of the Loan D administration or modification of any of Bank's ri ? oedies under the enforcement, Documents, (3) any. potential and/or actual b s and remedies under any. of the Loan commenced by or against any Obligor, and/or. (4) any or other insolvency proceedings out of or related to any of the foregoing, the Loan Documents potential or any of the Obligaationss,then Maker shall be liable to and shall reimburse Bank, on demand for all attorneys' fees, costs and expenses incurred by Bank in connection with any of the foregoing. Maker shall also be liable and shall reimburse Bank, on demand, for all other costs and ex , incurred by Bank in connection with the collectio preservation n (indr. liquidation attorneys fees) Collateral and/or in the enforcement of any Obligor's obligations hereunder ad dr an any Loan Documents. any o of the Presentment for payment or acceptance, demand and protest, and notice of dishonor of payment or acceptance, notice of protest and notice of any renewal, extension, modification or change of time, manner, place or terns. of payment are hereby waived by Maker. Any notice to Maker shall be sufficiently served for all purposes if placed in the mail addressed to, or left upon the premises of the address of Maker shown on the Bank's records. Bank may surrender this Note to any person paying the final installment or payment due hereunder, and may endorse or assign it to such person or his order without recourse. The parties agree and consent to the exclusive jurisdiction of the federal and state courts located in Pennsylvania in connection with any matters arising hereunder, including the collection and enforcement hereof, except as Bank may otherwise elect. Pennsylvania. This Note shall be governed by the substantive laws of the Commonwealth of -6- WITNESS the due execution hereof as a document under seal, as of the date first written above, with the intent to be legally bound hereby. WITNESS: i SHIPPENSBURG APEX, LP, a Pennsylvania limited partnership By: Shippensburg Apex, LLC, a Pennsylvania limited liability company, its sole general partner By: 2vl'c Robert P. S anaging Member -7- 06/16/2010 08:29 7172332730 SECURITY SEARCH PAGE 17/22 'I ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 204742316 Recorded On 11/0007 At 11:09:18 AM * Instrument Type - MORTGAGE Invoice Number - 8434 - User ID - RAK * Mortgagor - SHIPPENSBURG APEX LP * Mortgagee - ROYAL BANK AMERICA * Customer - SUBURBAN PHIL * FEES STATE WRIT TAX $0.50 STATE JCS/ACCZSS TO $10.00 JUSTICE RECORDING FEES - $47.50 RECORDER OF DEEDS AFFORDABLE SOUSING $11.50 COUNTY ARCHIVES FEE $2.00 ROD ARCSIVZS FEE $3.00 TOTAL PAID $74.50 * Total Pages - 23 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA AA% OR RECORDER O D DS • - Information denoted by an asterisk may, change during the verification process and may not be reflected on this page. imu?dnio iZ Prepared By and Return To: Curt L. Heftler, Esquire Reed Smith LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 (215) 851-8186 Tax Parcel Number: 36-35-2385-131 OPEN-END MORTGAGE AND SECURITY AGREEMENT THIS MORTGAGE SECURES FUTURE ADVANCES. THIS MORTGAGE made this 26th day of October, 2007, from SHIPPENSBURG APEX, LP, a Pennsylvania limited partnership with an address of 401 E. Elm Street, Conshohocken, Pennsylvania 19428 ("Mortgagor"), to ROYAL BANK AMERICA, a Pennsylvania banking corporation with an office at 732 Montgomery Avenue, Narberth, Pennsylvania 19072 ("Mortgagee"). WITNESSETH: Mortgagor has executed and delivered to Mortgagee a promissory note bearing even date herewith, wherein Mortgagor promises to pay to the order of Mortgagee the principal sum of Sixteen Million Six Hundred Sixty-Seven Thousand Fifteen and 00/100 Dollars ($16,667,015.00) lawful money of the United States of America, with interest thereon at the rate and times, in the manner and according to the terms and conditions specified in such note (together with any and all restatements thereof or amendments thereto, the "Note"). Mortgagor has also executed and delivered or caused to be executed and delivered certain other agreements and instruments in connection with the Note (the Note, and all other agreements and instruments executed in connection with the loan evidenced thereby, being sometimes hereinafter collectively referred to as the "Loan Documents"). NOW, THEREFORE, for the purpose of securing the payment and performance of all indebtedness, obligations and liabilities of Mortgagor to Mortgagee of every kind and description, direct or indirect, secured or unsecured, joint or several, absolute or contingent, due or to become due, including any overdrafts, whether for payment or performance, now existing or hereafter arising, whether presently contemplated or not, regardless of how the same arise, or by what instrument, agreement or book account they may be evidenced, or whether evidenced by any instrument, agreement or book account, including, but not limited to all obligations under the Note, all loans (including, any loan by modification, renewal or extension), all indebtedness, obligations and liabilities under or in connection with swap agreements (as defined in l 1 U.S.C. § 101, as in effect from time to time) with Mortgagee or any of its affiliates, all undertakings to take or refrain from taking any action, all indebtedness; liabilities or obligations owing from PHLL18-2120914,1-CI14EFFLE 10ri=7 &tS AM Mortgagor to others which Mortgagee may have obtained by purchase, negotiation, discount, assignment or otherwise, and all interest, taxes, fees, charges, expenses and attorney's fees (whether or not such attorney is a regularly salaried employee of Mortgagee, any parent corporation or any subsidiary or affiliate thereof, whether now existing or hereafter created) chargeable to Mortgagor or incurred by Mortgagee under this Mortgage, or any other document or instrument delivered in connection herewith or therewith (collectively, the "Obligations"), Mortgagor has granted, conveyed, aliened, enfeoffed, released, confirmed and mortgaged, and by these presents does hereby grant, convey, alien, enfeoff', release, confirm and mortgage unto Mortgagee, all that certain tract or parcel of land located in Shippensburg Township, Cumberland County, Pennsylvania and more particularly described in Exhibit "A" attached hereto and made a part hereof (hereinafter referred to as the "Land"). TOGETHER WITH all of Mortgagor's right, title and interest now owned or hereafter acquired in: (a) all easements, rights-of-way, gores of land, streets, ways, alleys, passages, rights, waters, water courses, water rights and powers, riparian rights, mineral rights, privileges, tenements, hereditaments and appurtenances whatsoever in any way belonging, relating or appertaining to any of the Land or which hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned or hereafter acquired by Mortgagor, and the reversions and remainders; and (b) all rents, issues, profits, receipts, lodging revenues, hotel revenues and other income of any and all kinds received or receivable and due or to become due in connection with the Land or in the operation of any buildings and improvements now or hereafter erected thereon, including but not limited to the lease of, or operation of any income-producing facility on, the Land or the buildings and improvements thereon; and (c) all buildings and.other improvements erected or hereafter erected.upon the Land and all building materials, fixtures, building machinery and building equipment delivered on site to the Land during the course of, or in connection with, the construction of, or reconstruction of, or remodeling of any buildings and improvements from time to time during the term hereof, and (d) all fixtures, appliances, machinery, furniture and equipment of any nature whatsoever, and other articles of personal property now or at any time hereafter installed in, attached to or situated in or upon the Land or any buildings and improvements now or hereafter erected on, upon, under or forming a part of the Land, or used or intended to be used in connection with the Land, or in the.operation of any buildings and improvements now or hereafter erected thereon, or in the operation or maintenance of any. such building or improvement, plant or business situate thereon, whether or not the personal property is or shall be affixed thereto; and (e) all licenses (including but not limited to operating licenses or similar matters), contracts, management contracts or agreements, franchise agreements, permits, bonds, authorities or certificates required or used in connection with the ownership of, or the operation or maintenance of the real property or improyernents or personal property, provided that no such contract, agreement, license or the like shall be binding upon Mortgagee except with Mortgagee's prior consent; and -2- (f) all proceeds of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including, without limitation, proceeds of insurance and condemnation awards. All of the Land, buildings and improvements, fixtures, machinery, furniture, equipment, tenements, hereditaments and appurtenances, proceeds and other property interests above described and hereby mortgaged are sometimes collectively referred to herein as the "Mortgaged Property". TO HAVE AND TO HOLD the Mortgaged Property hereby conveyed or mentioned and intended so to be, unto Mortgagee, forever. PROVIDED ALWAYS, and this instrument is upon the express condition that, if Mortgagee is paid the principal sum mentioned in the Note, the interest thereon and all other sums payable to Mortgagee as are secured hereby, in accordance with the provisions of the Note and this Mortgage, at the times and in the manner specified, without deduction, fraud or delay, and Mortgagor performs and complies with all the agreements, conditions, covenants, provisions and stipulations contained herein and in the Loan Documents, then this Mortgage and the estate hereby granted shall cease and become void. 1. Mortgagor's Representations. Mortgagor warrants and represents that it possesses a good and marketable title to an indefeasible fee simple estate in the Mortgaged Property, that Mortgagor has full power and lawful authority to subject the Mortgaged Property to the lien of this Mortgage in the manner and form herein provided; that it shall be lawfW for Mortgagee at aII times to enter upon, hold, occupy and enjoy the Mortgaged Property and every part thereof; that this Mortgage is a valid and enforceable first lien on the Mortgaged Property; that the Mortgaged Property is free from all liens and encumbrances subject only to those title exceptions listed in the mortgagee title insurance policy approved by and issued to Mortgagee, insuring the priority of the lien of this Mortgage; that all information, reports, papers and data given to Mortgagee with respect to the Mortgaged Property or Mortgagor are accurate in all material respects; that no notice of taking by eminent domain or condemnation of any part of the Mortgaged Property has been received, and Mortgagor has no knowledge that any of such is contemplated; that the Mortgaged Property-and the present use and occupancy thereof are in compliance with all applicable laws, rules, ordinances, statutes and regulations and is not a nonconforming use; that Mortgagor has received no notice with respect to the Mortgaged Property from any governmental authority of any violation of any codes, zoning or use regulations or other laws or ordinances; that there are no unpaid bills in existence for labor or materials used in making improvements or repairs respecting the Mortgaged Property or for the services of architects, surveyors, engineers or interior designers incurred in connection therewith or for equipment, appliances, fixtures or other personalty attached to the Mortgaged Property except as may have previously been disclosed to'Mortgagee in writing, and that no part of the Mortgaged Property is located in an area designated by any federal, state or local governmental entity as having a special flood hazard. 2. Pavment and Performance. Mortgagor shall pay to Mortgagee, in accordance with the terms of the Note and this Mortgage, the principal and interest, and other sums therein set forth; shall perform and comply with all the agreements, conditions, covenants, provisions and stipulations of the Loan Documents and this Mortgage; and shall timely perform all of its material obligations and duties as landlord under any lease of all or any portion of the Mortgaged Property now or hereafter in effect. -3- 3. Maintenance of Mortgaged Propert y. Mortgagor shall keep and maintain or cause to be kept and maintained all buildings and improvements now or at any time hereafter erected on the Mortgaged Property, the sidewalks and curbs abutting them and all items of inventory, equipment and any other personal property necessary for or used in the maintenance and operation of the Mortgaged Property, in good order and condition and in a rentable and tenantable state of repair, and will make or cause to be made, as and when necessary, all repairs, renewals and replacements, structural and nom, exterior and interior, ordinary and extraordinary, foreseen and unforeseen; provided, however, that no new construction on the Mortgaged Property or any structural work on any building erected at any time on or constituting a part of the Mortgaged Property shall be performed (including without limitation the removal or demolition of such building or the alteration of the structural character or exterior of such building) without the prior written consent of Mortgagee. Mortgagor shall abstain from and shall not permit the commission of waste in or about the Mortgaged Property or permit the Mortgaged Property to become vacant, deserted or abandoned. Mortgagor shall not take or permit any action with respect to a change in the zoning ordinances or regulations affecting the Mortgaged Property without the prior written consent of Mortgagee. 4. Insurance. (a) Mortgagor shall keep the Mortgaged Property continuously insured, to the extent of its full insurable value, against loss or damage by fire, with extended coverage and against such other hazards (including, without limitation, coverage against loss or damage by vandalism, malicious mischief, sprinkler leakage and flood) as Mortgagee may reasonably require, and shall maintain commercial general liability insurance and worlonen's compensation insurance in such total amounts as Mortgagee may reasonably rewire from time to time. Such insurance shall contain agreed amount endorsements, inflation guard endorsements and replacement cost endorsements reasonably satisfactory to Mortgagee. During the course of any construction or repair of improvements on the Mortgaged Property for which builder's risk insurance may be obtained, Mortgagor shall acquire and maintain builder's completed value risk insurance against all risks of physical loss, including collapse and transit coverage, during construction of such improvements, with deductibles not to exceed $10,000 in non-reporting form, covering the total value of work performed and equipmerrt, supplies aad materials furnished. All property and builder's risk insurance shall include protection for continuation of income for a period of twelve (12) months, in the event of any damage caused by the perils referred to above. All policies of insurance, including policies for any amounts carried in excess of the required minimum and policies not specifically required by Mortgagee, shall be in form satisfactory to Mortgagee, issued by an insurance company or companies qualified to insure property located in Pennsylvania and satisfactory to Mortgagee; shall name Mortgagee as an additional insured, shall name Mortgagee as the loss payee, shall be endorsed with a standard . mortgagee clause in favor of Mortgagee (substantially equivalent to the Insurance Services Office standard mortgagee endorsement) not subject to contribution, and shall provide for at least thirty (30) days' notice of cancellation, termination, modification, refusal to renew or reduction to Mortgagee. If the insurance, or any part thereof, shall expire, or be withdrawn, or become void or unsafe by Mortgagor's breach of any condition thereof, or become void or unsafe by reason of the failure or impairment of the capital of any company in which the insurance may then be carried, or if for any reason in the reasonable opinion of Mortgagee the insurance shall be unsatisfactory to Mortgagee, Mortgagor shall place new insurance on the Mortgaged Property satisfactory to Mortgagee. (b) In the event of loss, Mortgagee shall have the exclusive right to adjust, collect and compromise all insurance claims, and Mortgagor shall not adjust, collect or -4- compromise any claims under said policies without Mortgagee's prior written consent. Each insurance company concerned is hereby authorized and directed to make payment under such insurance, including return of unearned premiums, directly to Mortgagee instead of to Mortgagor and Mortgagee jointly, and Mortgagor irrevocably authorizes Mortgagee to endorse any draft therefor, such authority to be deemed to be a power coupled with an interest. Mortgagee shall have the right to retain and apply the proceeds of any such insurance, at its election, to reduction of the indebtedness secured hereby, or to restoration or repair of the property damaged on such terns as Mortgagee may specify, at Mortgagee's sole discretion (and if the proceeds are applied to restoration or repair Mortgagee may apply any excess proceeds to the reduction of the indebtedness secured hereby), If Mortgagee elects to retain and apply such proceeds to the reduction of the indebtedness secured hereby, Mortgagee shall have the right in its sole discretion to apply any such proceeds, in such order and in such amounts as Mortgagee may elect, against: (i) any amounts payable by Mortgagor hereunder or under the Loan Documents, and/or (ii) accrued and unpaid interest under the Note, and/or (iii) the outstanding principal balance of the Note. No application of insurance proceeds to the payment of the Note shall postpone any of the current installments of principal or interest becoming due under such Note until such Note and all interest and other sums due hereunder and thereunder have been paid in full. (c) Such policies of insurance and all renewals thereof are hereby assigned to Mortgagee as additional security for payment of the indebtedness hereby secured and Mortgagor hereby agrees that any values available thereunder upon cancellation or termination of any of said policies or renewals, whether in the form of return of premiums or otherwise, shall be payable to Mortgagee as assignee thereof. If Mortgagee becomes the owner of the Mortgaged Property or any part thereof by foreclosure or otherwise,. such policies, including all right, title and interest of Mortgagor thereunder, shall become the absolute property of Mortgagee. In addition, Mortgagor will deliver the originals or certified copies of all such policies to Mortgagee, and, not less than thirty (30) days.prior to the expiration date of each such policy, will deliver to Mortgagee a renewal policy or policies (or certified copies of such policies) marked "premium paid" or accompanied by other evidence of payment satisfactory to Mortgagee. Mortgagor shall not change the resent use of any portion of the Mortgaged Property in any manner or permit any condition to exist on the Mortgaged Property which would permit an insurer to cancel or increase the premium for any insurance policy or invalidate such policy in whole or in part. - Mortgagor shall not take out separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this Paragraph 4 unless Mortgagee is included thereon as a named insured with loss payable to Mortgagee under a non- contributory mortgagee clause satisfactory to Mortgagee. whenever any rY Mortgagor shall immediately notify Mortgagee y separate insurance is taken out, specifying the insurer thereunder and full particulars as to the policies evidencing the same. 5. Taxes and Other Char es. Before interest or penalties are due thereon and otherwise when due, Mortgagor shall pay all taxes, assessments, levies, liabilities, obligations, encumbrances, water and sewer rents and all other charges or claims of every nature and kind which may be imposed, suffered, placed, assessed, levied, or filed at any time against Mortgagor, the Mortgaged Property or any part thereof or against the interest of Mortgagee therein, or with respect to the Note or Mortgage and/or the ownership of either thereof by Mortgagee, or which by any present or future law may have priority over the indebtedness secured hereby either in lien or in distribution out of the proceeds of any judicial sale, without regard to any law heretofore or hereafter to be enacted imposing payment of the whole or of any part upon Mortgagee. Within fifteen (15) days after the payment of any such tax, assessment, levy, liability, obligation or encumbrance, Mortgagor shall deliver to Mortgagee evidence acceptable -5- to Mortgagee of such payment. Provided, however, that if, pursuant to this Mortgage or otherwise, Mortgagor shall have deposited with Mortgagee before the due date thereof sums sufficient to pay any such taxes, assessments, levies, water and sewer rents, charges or claims, and Mortgagor is not otherwise in default, they shall be paid by Mortgagee. It is expressly agreed that no credit shall be claimed or allowed on the interest payable on the Note because of any taxes or other charges paid. 6. Installments for Insurance, Taxes and Other Charges. Without limiting the effect of Paragraphs 4 and 5 hereof, Mortgagee may require Mortgagor to pay to Mortgagee (or to such other entity as Mortgagee shall designate), monthly with the monthly installments of interest (or the monthly installments of principal and interest when applicable), an amount equal to one- twelfth (1/12) of the annual premiums for the insurance policies referred to hercinabove and the annual real estate taxes, water and sewer rents, any special assessments, charges or claims and any other item which at any time may be or become alien upon the Mortgaged Property prior to the lien of this Mortgage; and on demand from time to time Mortgagor shall pay to Mortgagee any additional sums necessary to pay the premiums and other items, all as estimated by Mortgagee. The amounts so paid shall be security for the premiums and other items and shall be used in payment thereof if Mortgagor is not otherwise in default hereunder. No amount so paid shall be deemed to be trust funds but may be commingled with general funds of Mortgagee and no interest shall be payable thereon. If, pursuant to any provision of this Mortgage or the Note, the whole amount of the unpaid principal debt becomes due and payable, Mortgagee shall have the right, in its sole discretion, to apply any amount so held, in such order and in such amounts as Mortgagee may elect, against: (a) any amounts payable by Mortgagor hereunder or under the Loan Documents, and/or (b) accrued and unpaid interest under the Note, and/or (c) the outstanding principal balance of the Note. At Mortgagee's option, Mortgagee from time to time may waive, and after any such waiver may reinstate, the provisions of this paragraph requiring the monthly payments. Mortgagor will furnish to Mortgagee bills and other requests for payment in sufficient time to enable Mortgagee to pay such premiums, taxes, assessments, levies, charges and fees as provided above. 7. Mortor's Existence and Taxes. Mortgagor shall keep in effect its existence and rights under the laws of the state of its formation, if applicable, and its right to own property and transact business in the state in which the Mortgaged Property is situated during the entire time that it has any ownership interest in the Mortgaged Property. Mortgagor shall file returns for all taxes owing by Mortgagor with the proper authorities, bureaus or departments and it shall pay, when due and payable and before interest or penalties are due thereon, all taxes owing by Mortgagor to the United States, to such state of formation and to the state in which the Mortgaged Property is situated and any political subdivision thereof, and shall produce to Mortgagee recerpts showing payment of any and all such taxes, charges or assessments prior to the last dates upon which such taxes, charges or assessments are payable without interest or penalty charges, and within ten (]0) days of receipt thereof all settlements, notices of deficiency or ovcrassessment and any other notices pertaining to Mortgagor's tax liability which may be issued by the United-States, such state of formation, the state in which the Mortgaged Property is situated and any political subdivision thereof. 8. Documentary and Other Stamps. If at any time the United States, the state in which the Mortgaged Property is located or any political subdivision thereof, or any department or bureau of any of the foregoing, shall require documentary, revenue or other stamps on the Note secured hereby or this Mortgage, Mortgagor on demand shall pay forthem with any interest or penalties payable thereon. -6- 9. Future Taxes. If hereafter any law or ordinance shall be adopted imposing a tax directly or indirectly on Mortgagee with respect to the Mortgaged Property, the value of Mortgagor's equity therein, or the indebtedness evidenced by the Note and secured by this Mortgage, Mortgagee, at its election, shall have the right at any time after the tax has been imposed to give Mortgagor written notice declaring that the principal debt, with interest and other appropriate charges, shall be due on a specified date not less than sixty (60) days thereafter which notice shall specify the nature of the tax which is the basis for acceleration; provided, however, that such election shall be ineffective if, prior to the specified date, Mortgagor lawfully pays the tax (in addition to all other payments required hereunder) and agrees to a the tax whenever it becomes due and payable thereafter, which agreement shall then constitute a part of this Mortgage. 10. Security Agreement. (a) This Mortgage constitutes a security agreement within the meaning of the Uniform Commercial Code, as adopted and enacted and as in effect from time to time in the Commonwealth of Pennsylvania (the "Uniform Commercial Code"). Terms used herein which are defined in the Uniform Commercial Code and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Uniform Commercial Code. To the extent the definition of any category or type of collateral is modified by any amendment, modification or revision to the Uniform Commercial Code, such modified definition will apply mitomatically as of the date of such amendment, modification or revision. (b) To secure the Obligations, Mortgagor, as debtor, hereby assigns and giants to Mortgagee; as secured party, a continuing hen on and security interest in all personal property of Mortgagor, including the following, all whether now owned or hereafter acquired or arising and wherever located: (i) accounts (including health-care-insurance receivables and credit card receivables); (ii) securities entitlements, securities accounts, commodity accounts, commodity contracts and investment property; (iii) deposit accounts; (iv) instruments (including promissory notes); (v) documents (including warehouse receipts); (vi) chattel paper (including electronic chattel paper and tangible chattel paper); (vii) inventory, including raw materials, work in process, or materials used or consumed in Mortgagor's business, items held for sale or lease or furnished or to be furnished under contracts of service, sale or lease, goods that are returned, reclaimed or repossessed; (viii) goods of every nature, including stock-in-trade, goods on consignment, standing timber that is to be cut and removed under a conveyance or contract for sale, the unborn young of animals, crops grown, growing, or to be grown, manufactured homes, computer programs embedded in such goods and farm products; (ix) equipment, including machinery, vehicles and furniture; (x) fixtures; (xi) agricultural ,liens; (xii) as-extracted collateral; (xiii) commercial tort claims, if any; (xiv) letter of credit rights; (xv) general intangibles, of every kind and description, including payment intangibles, software, computer information, source codes, object codes, records and data, all existing and future customer lists, choses in action, claims (including claims for indemnification or breach of warranty), books, records, patents and patent applications, copyrights, trademarks, tradenames, tradestyles, trademark applications, goodwill, blueprints, drawings, designs and plans, trade secrets, contracts, licenses, license agreements, formulae, tax and any other types of refunds, returned and unearned insurance premiums, rights and claims under insurance policies; (xvi) all supporting obligations of all of the foregoing property; (xvii) all property of Mortgagor now or hereafter in Mortgagee's possession or in transit to or from, or under the custody or control of, Mortgagee-or any affiliate thereof, (xviii) all cash and cash equivalents thereof; and (xix) all cash and noncash proceeds (including insurance proceeds) of all of the foregoing property, all products thereof and all additions and accessions thereto, substitutions therefor and replacements thereof. -7- (c) By its signature hereon, Mortgagor hereby irrevocably authorizes Mortgagee to file against Mortgagor one or more financing, continuation or amendment statements pursuant to the Uniform Commercial .Code in form satisfactory to Mortgagee, and Mortgagor will pay the cost of preparing and filing the same in all jurisdictions in which such filing is deemed by Mortgagee to be necessary or desirable in order to perfect, preserve and. Protect its security interests. If required by Mortgagee, Mortgagor will execute all documentation necessary for Mortgagee to obtain and maintain perfection of its security interests in the personal property of Mortgagor. (d) Upon any Event of Default hereunder or under the Note, Mortgagee shall have, in addition to any other rights and remedies hereunder .or under the Note, all of the rights and remedies granted to a secured party under the Uniform Commercial Code with respect to such personal property. To the extent permitted by law, Mortgagor and Mortgagee.agree that the items set forth on the financing statements shall be treated as part of the real estate and improvements regardless of the fact that such items are set forth in the financing statements. Such items are contained in the financing statements to create a security interest in favor of Mortgagee in the event such items are detm-rnined to be personal property under the law. Notwithstanding any release of any or all of that property included in the Mortgaged Property which is deemed "real property", any proceedings to foreclose this Mortgage or its satisfaction of record, the terms hereof shall survive as a security agreement with respect to the security interest created hereby and referred to above until the repayment or satisfaction in full of the obligations of Mortgagor as are now or hereafter evidenced by the Note. (e) To the extent permitted under the Uniform Commercial Code, Mortgagor waives all rights of redemption and all other rights and remedies of a debtor thereunder and all formalities prescribed by law relative to the sale or disposition of the personal property after the occurrence of an Event of Default hereunder and to all other rights and remedies o Mortgagor with respect thereto. In. exercising its right to take possession of the personal property upon 'the occurrence of an Event of Default. hereunder, Mortgagee may enter upon the Mortgaged Property without being guilty of trespass or any other wrong-doing, and without liability for damage thereby occasioned (fl Mortgagor shall reimburse Mortgagee, on.demand, for all reasonable expenses of retaking, holding, preparing for sale, lease or other use or disposition, selling, leasing or otherwise using or disposing of the personal property which are incurred or paid by Mortgagee, including, without limitation, all attorneys' fees, legal expenses and costs, and all such expenses shall be added to Mortgagor's obligations to Mortgagee and shall be secured hereby. 11. Compliance with Laws and R-e ulabons. Mortgagor shall comply with all laws, ordinances, regulations and orders of all federal, state, municipal and other governmental. authorities relating to the Mortgaged Property, including without limitation the Americans with Disabilities Act (the "ADA"). Mortgagor certifies that all renovations; construction and improvements with respect to the Mortgaged Property are and shall be in compliance with the ADA. Mortgagor will pay all license fees and similar municipal charges for the use of the Mortgaged Property and any other areas now or hereafter comprising part thereof or used in connection therewith and will not, unless so required by a governmental agency having jurisdiction, discontinue use or occupancy of any portion of the Mortgaged Property without the prior written consent of Mortgagee. Mortgagor shall not take or permit any action with respect to the Mortgaged Property which will in any manner impair the security of this Mortgage. -8- 12. In ection• Undated A raisal. Mortgagee and any persons authorized by Mortgagee shall have the right at any time, to enter the Mortgaged Property at a reasonable hour to inspect and photograph its condition and state of repair and/or for the purpose of appraising the same. Mortgagee may, from time to time, order an updated appraisal of the Mortgaged Property, which appraisal shall be prepared by an appraiser selected by Mortgagee at the sole cost of Mortgagor.. 13. Declaration of No Set-Off. Within one (1) week after being requested to do so by Mortgagee, Mortgagor shall certify to Mortgagee or to any proposed assignee of this Mortgage, in a writing duly acknowledged, the amount of principal, interest and other charges then owing on the obligation secured by this Mortgage and by prior liens, if any, and whether Mortgagor claims any set-offs or defenses against Mortgagor's obligation to pay such amounts, and if so the precise basis for such set-offs or defenses. 14. Financial Statements and Information. (a) Mortgagor shall furnish Mortgagee, by June 1st of each year during-the entire term of the loan secured hereby, with financial statements reflecting, in reasonable detail, a balance sheet for the operation of the Mortgaged Property, a fully itemized statement of the gross income and expenses of the Mortgaged Property for such fiscal year, and a balance sheet and profit and loss statement for Mortgagor including contingent liability schedules, with notes to the financial statements, all prepared by a certified public accountant acceptable to Mortgagee. (b) . Mortgagor shall furnish Mortgagee copies of its federal income tax returns (including K-1 schedules, if applicable) within fifteen (15) days after the filing thereof. (c) Mortgagor agrees to make the books and accounts relating to the Mortgaged Property and Mortgagor's operations available for ion by Mortgagee, or its representatives, upon written request at any reasonable time and er agrees to furnish Mortgagee with such additional financial statements or information as may be requested from . time to time by Mortgagee. (d) Mortgagor shall cause each guarantor or surety of the loan secured hereby to furnish Mortgagee such financial information as may be requested from time to time by Mortgagee including (i) financial statements in a form satisfactory to Mortgagee with verification of liquid assets by June 1st of each year during the entire term of the loan secured hereby, and (ii) copies of their federal income tax returns (including K 1 schedules, if applicable) within fifteen (15) days after the filing thereof. 15. R aired Notices. Mortgagor shall notify Mortgagee promptly of the occurrence of any of the following: (a) a fire or other casualty causing damage to the Mortgaged Property; (b) receipt of notice of eminent domain proceedings or condemnation of all or any part of the Mortgaged Property; (c) receipt of notice from any governmental authority relating to the structure, use or occupancy of the Mortgaged Property; -9- (d) receipt of any notice from any tenant of all or any portion of the Mortgaged Property; (e) substantial change in the occupancy of the Mortgaged Property; (f) commencement of any litigation affecting the Mortgaged Property; (g) receipt of any notice from the holder or claimant of any lien or security interest in the Mortgaged Property or any part thereof; or (h) receipt by any Obligor (as defined in the Note) of any notice of default with respect to any other indebtedness of any Obligor for borrowed money. 16. Condemnation. (a) In the event of any condemnation or taking of any part of the.Mortgaged Property by eminent domain, or other injury to or decrease in the value of the Mortgaged Property by any public or quasi-public authority or corporation, all proceeds (that is, the award or agreed. compensation for the damages sustained) allocable to Mortgagor are hereby assigned by Mortgagor to Mortgagee to fiuher secure the payment of the indebtedness secured hereby. No settlement for damages sustained shall be made by Mortgagor without Mortgagee's prior written approval. Mortgagee is authorized and empowered (but not required) to collect and receive any such condemnation award and all condemnation proceeds which then shall be applied in the order and in the amounts that Mortgagee, in Mortgagees sole discretion, may elect, to the reduction of the indebtedness secured hereby, or toward payment to Mortgagor, on such terms as Mortgagee may specify, to be used for the sole purpose of altering, restoring or rebuilding any part of the Mortgaged Property which may have been altered, damaged or destroyed as a result of the taking, or other injury to the Mortgaged Property. Mortgagor shall execute such further assignments of any such awards as Mortgagee may require. If Mortgagee elects to apply such proceeds to reduction of the indebtedness secured hereby, Mortgagee shall have the right in its sole discretion to apply any such proceeds, in such order and in such amounts as Mortgagee may elect, against: (i) any amounts payable by Mortgagor hereunder or under the Loan Documents, and/or (ii) accrued and unpaid interest under the Note, and/or (iii) the outstanding principal balance of the Note. (b) If prior to the receipt of the proceeds by Mortgagee the Mortgaged Property shall have been sold on foreclosure of this Mortgage, Mortgagee shall have henght to receive the proceeds to the extent of (i) any deficiency found to be due to Mortgagee in connection with the foreclosure sale, with legal interest thereon, and (ii) counsel fees, costs and disbursements incurred by Mortgagee in connection with collection of the proceeds and the proceedings to establish the deficiency. (c) If the amount of the initial award of damages for the condemnation is insufficient to pay in full the indebtedness secured hereby with interest and other appropriate charges, Mortgagee shall have the right to prosecute to final determination or settlement an appeal or other appropriate proceedings in the name of Mortgagee or Mortgagor, for which Mortgagee is hereby appointed irrevocably as attorney-in-fa for Mortgagor. In that event, the expenses of the proceedings, including .counsel fees, shall be paid first out of the proceeds and only the excess, if any, paid to Mortgagee shall be credited against the.amounts due under this Mortgage. -ZO- (d) Nothing herein shall limit the rights otherwise available to Mortgagee, at law or in equity, including the right to intervene as a party to any condemnation proceeding. (e) No application of condemnation proceeds to the payment of the Note shall postpone any of the current installments of principal or interest becoming due under such Note until the Note and all interest and other sums due thereunder and hereunder are paid in full. 17. Leases. (a) Mortgagor hereby assigns to Mortgagee all existing and future leases (the "Leases") and all rents and profits of the Mortgaged Property as further security for payment of the indebtedness hereby secured and Mort the the Mortgaged Pr g? grants to Mortgagee the right to enter upon gag operty for the purposes of collecting the same and to let the Mortgaged Property or any part thereof This assignment and grant shall continue in effect until the indebtedness secured by this Mortgage is paid. Mortgagee hereby waives the right to collect said rents and profits, and Mortgagor shall be entitled to collect and receive the.same until the occurrence of an Event of Default under this Mortgage, and Mortgagor agrees to use such rents and profits in payment of principal and interest becoming due on this Mortgage and.in.payment of taxes, assessments, sewer rents, water rents and charges becoming due as aforesaid, but such privilege of Mortgagor may be revoked by Mortgagee upon an Event of Default without notice. Mortgagor shall not, without the written consent of Mortgagee, receive or collect rent or other charge for a period of more than one month in advance. Mortgagee shall not be deemed to have accepted the assignment except as a pledge or be obligated as lessor by virtue of this assignment except by a separate and express written agreement of Mortgagee. (b) Mortgagor hereby authorizes and instructs each and every present and future tenant of any of the Mortgaged Property to pay all rents directly to Mortgagee and to perform all other obligations of that tenant for the direct benefit of Mortgagee, as if Mortgagee were the landlord under the lease with that tenant, immediately upon receipt of a demand by Mortgagee to make such payment or perform such obligations. No tenant shall have any responsibility to ascertain whether such demand is permitted hereunder or whether a default shall have occurred. Mortgagor hereby waives any right, claim or demand it may now or hereafter have against any such tenant by reason of such payment of rents or performance of obligations to Mortgagee; and any such payment or performance to Mortgagee shall discharge the obligations of the tenant to make such payment or performance to Mortgagor. Mortgagor shall indemnify Mortgagee and hold Mortgagee harmless from any and all liability under any lease and for any and all claims and demands which may be asserted against Mortgagee by reason of any alleged obligations to perform any provision of any lease, except as to Mortgagee's own gross negligence or willful misconduct. (c) Mortgagor represents and warrants to Mortgagee that the Mortgaged Property is not subject to any leases or other occupancy rights, and no tenant or any other party has any option or right to purchase the Mortgaged Property or any part of the Mortgaged Property. Mortgagor will deliver to Mortgagee upon written request a certified statement setting forth the names of all tenants occupying space in the Mortgaged Property, a brief description of the space occupied, the rental payable and the date of expiration of the respective leases, and the status of the rental payments due thereunder. the (d) Mortgagor shall promptly (i) perform all of the provisions of the Leases on part of the landlord thereunder to be performed; (ii) enforce all of the provisions of the Leases on the part of the tenants thereunder to be performed; and (iii) appear in and defend any -11- action or proceeding arising under, growing out of or in any manner connected with the Leases or the obligations of Mortgagor as landlord or of the tenants thereunder. (e) Mortgagor shall deliver to Mortgagee copies of any new Leases or amendments to existing Leases within fifteen (15) days of the execution of such new Leases or amendments to existing Leases. Mortgagor shall not enter into any new Leases or amend any of the terms of any of the existing Leases without obtaining the prior written approval of Mortgagee. All Leases (existing and future) shall, unless Mortgagee otherwise elects in its sole discretion, be subject and subordinate in all respects to the lien of this Mortgage. 18. No Other Financing or Liens. Without the prior written consent of Mortgagee, which Mortgagee can grant or withhold in its sole discretion, Mortgagor shall not create or cause or permit to exist any lien on, or security interest in the Mortgaged Property or any part thereof (whether or not such lien or security interest is subordinate to the lien of this Mortgage), including any furniture, fixtures, appliances, machinery, equipment, or other items of personal property which are intended to be or become part of the Mortgaged Property, or securing repayment of monies paid to or for the benefit of Mortgagor. 19. No Transfer. Without the prior written consent of Mortgagee, which Mortgagee can grant or withhold in its sole discretion, Mortgagor will abstain from and will not cause or permit any sale, assignment or transfer of (a) all or any part of the Mortgaged Property or any beneficial interest therein, or any estate or other interest in the Mortgaged Property or-any part thereof, or (b) any beneficial interest in Mortgagor, in either case whether voluntarilyy or by operation of law, whether by sale, exchange, conveyance, merger, division, consoi. 'On or otherwise. Any consent given by Mortgagee hereunder shall pertain only to the proposed transfer for which the consent was requested and shall not obligate Mortgagee to approve any further transfers. 20. Right to Remedy Defaults. In the event that Mortgagor should fail to pay corporate taxes, real estate or other taxes, assessments,. water and sewer rents, charges and claims on or before the date on which any penalty may be imposed with respect thereto, or fail to pay insurance premiums, or fail to make necessary repairs, or permit waste, or fail to comply with any other provision of this Mortgage or the Loan Documents; Mortgagee, at its election and without notice to Mortgagor, shall have the right to make any payment or expenditure and to take any action which Mortgagor should have made or taken, or which Mortgagee deems advisable to protect the security of this Mortgage or the Mortgaged Property, without prejudice to an of Mortgagee's rights or remedies available hereunder or otherwise, at law or in equity. All such sums, as well as costs, advanced by Mortgagee pursuant to this Mortgage shall be due immediately from Mortgagor to Mortgagee, shall be secured hereby, and shall bear interest at the Default Rate (as defined in the Note) from the date of payment by Mortgagee until the date of repayment. 21. Actions of Mortgagee. Mortgagee may, at any time and from time to time, without notice to and without the consent of any other person or entity, (a) extend or accelerate the time of payment of the indebtedness secured hereby, (b) agree to modify the terms of the Note or this Mortgage, including increasing payments of interest and principal, (c) release=any person liable for payment of any indebtedness secured hereby or for performance of any obligation, (d) release all or any part of the security held for the indebtedness secured hereby or (e) exercise or refrain from exercising or waive any right Mortgagee may have. Mortgagee shall have such rights and may exercise them without affecting the lien or priority of this Mortgage upon the Mortgaged Property or any part thereof notwithstanding the fact that junior mortgages, -12- judgments or other claims or encumbrances may be impaired, prejudiced or otherwise adversely affected thereby. 22. Security and Priority of Advances. This Mortgage secures future advances. Advances may be made and indebtedness incurred from time to time hereafter, but each such advance or indebtedness shall be secured hereby as if made on the date hereof. The maximum amount of Indebtedness (as defined in 42 Pa. C.S.A. §8143, which tern excludes interest and excludes the protective advances and expenses referred to in the immediately following sentence) outstanding at any time which is secured by this Mortgage is double the face amount of the Note. This Mortgage also secures (i) all advances made by Mortgagee with respect to the Mortgaged Property for the payment of real estate taxes, water and sewer rents, assessments, maintenance charges, insurance premiums or costs incurred for.the protection of any of the Mortgaged Property or the lien of this Mortgage, (ii) all expenses incurred by Mortgagee by reason of an Event of Default hereunder, and (iii) all advances made by Mortgagee to enable completion of construction of improvements to the Mortgaged Property. As provided in 42 Pa. C.S.A. §8144, this Mortgage shall constitute a lien on the Mortgaged Property from the time this Mortgage is left of record (or, if this is a purchase money mortgage, from: the time of delivery hereof to Mortgagee) for, among other things, all such advances and expenses, plus interest thereon, regardless of the time when such advances are made or such expenses are incurred. Mortgagor hereby covenants and agrees that it will not exercise,. and hereby waives, its right under 42 Pa. C.S.A. §8I43(c) to limit the indebtedness secured by this Mortgage. 23. Notice to Prior Lienholders. Mortgagor hereby authorizes Mortgagee, without liability and at Mortgagee's sole discretion, to give notice in form and substance satisfactory to Mortgagee of the lien and security interest created by this Mortgage to a holder of a previously recorded mortgage which is a lien on the Mortgaged property in order, among other things, to subordinate further advances by such mortgage holder. 24. Events of Default. Each of the following shall constitute an event of default (hereinafter called an "Event of Default") hereunder: (a) any Event of Default?(as defined in any of the Obligations); (b) any default under any of the Obligations that does not have a defined set of "Events of Default" and the lapse of any notice or cure period provided in such Obligations with respect to such default; (c) demand by Mortgagee under any of the Obligations that have a demand feature; (d) the failure by Mortgagor. to perform any of its obligations under this Mortgage; (e) falsity, inaccuracy or material breach by Mortgagor of any warranty; covenant, representation or statement contained in this Mortgage or otherwise made or furnished to Mortgagee by or on behalf of Mortgagor; (f) an uninsured material loss, theft, damage, or destruction to any of the Mortgaged Property, (g) the entry of any lien against or the making of any levy, seizure or attachment of or on the Mortgaged Property, (h) the failure of Mortgagee to have a mortgage lien on the Mortgaged Property with the priority required under Paragraph I of this Mortgage; (i) any indication or evidence received by Mortgagee that Mortgagor may have directly or indirectly been engaged in any type of activity which, in Mortgagees discretion, might result in the forfeiture of any of the Mortgaged Property to any governmental entity, federal, state or local; 0) foreclosure or execution proceedings are instituted against the Mortgaged Property upon any other lien or claim, whether alleged to be superior or junior to the lien of this Mortgage; (k) the failure by Mortgagor to pay any taxes or other charges as required under Paragraph 5 of this Mortgage, or to maintain in full force and effect any insurance required under Paragraph 4 of this Mortgage; or (1) Mortgagor or any other obligor or guarantor of any of the Obligations, shall at any time deliver or cause to be delivered to Mortgagee a notice pursuant to 42 Pa. C.S.A. §8143 electing to limit the indebtedness secured by this Mortgage. -13- 25. Remedies. (a) Upon the happening of any Event of Default, the entire unpaid balance of the principal, the accrued interest and all other sums secured by this Mortgage shall become immediately due and payable; without notice or demand. (b) _ When the entire indebtedness shall become. due and payable, either because of maturity or because of the occurrence of any Event of Default, or otherwise, then forthwith: (i) Foreclosure. Mortgagee may institute an action of mortgage foreclosure against the Mortgaged Property, or take such other action at law or in equity for the enforcement of this Mortgage and realization on the mortgage security or any other security herein or elsewhere provided for, as the law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the Obligations, with interest at the rate stipulated in the Note.to the date of default, and thereafter at the Default Rate (as defined in the Note), together with all other sums due by Mortgagor in accordance with the provisions of the Note and this Mortgage, including all sums which may have been loaned by Mortgagee to Mortgagor after the date of this Mortgage, and all sums which may have been advanced by Mortgagee for taxes, water or sewer rents, charges or claims, payments on prior liens, insurance, utilities or repairs to the Mortgaged Property, all costs of suit, together with interest at such rate on any judgment obtained by Mortgagee from and after the date of any Sheriffs or other judicial sale until actual payment is made -of the full amount due Mortgagee, and a reasonable attorney's commission for collection; or (ii) Possession. Mortgagee may enter into possession of the Mortgaged Property, manage, lease and operate the Mortgaged Property, collect therefrom all rentals (which term shall also include sums payable for use and occupancy) and, after deducting all costs of collection and administration expense, apply the net rental to any or all of the following in such order and amounts as Mortgagee, in Mortgagee's sole discretion, may elect: the payment of taxes, water and sewer rents, charges and claims, insurance premiums and all other carrying charges, and to the maintenance, repair or restoration of the Mortgaged Property, and on account and in reduction of the principal or interest, or both, hereby secured; in and for that purpose Mortgagor hereby assigns to Mortgagee all rentals due and to become due under any lease or leases or rights to use -and occupancy of the Mortgaged Property hereafter created, as well as all rights and remedies provided in such lease or leases or at law or in equity for the collection of the rentals. For the purpose of obtaining possession of the Mortgaged Property upon the occurrence of an Event of Default hereunder or under the Note, Mortgagor hereby authorizes and empowers any attorney of any court of record in the Commonwealth of Pennsylvania or elsewhere, as attorney for Mortgagor and all persons claiming under or through Mortgagor, to appear for and confess judgment against Mortgagor, and against all persons claiming under or through Mortgagor, in favor of Mortgagee, for recovery by Mortgagee of possession of the Mortgaged Property, for which this Mortgage, or a copy thereof verified by affidavit, shall be a sufficient warrant; and thereupon a writ of possession may immediately issue for possession of the Mortgaged Property, without any prior writ or proceeding whatsoever and without any stay of execution. If for any reason after such action has been commenced it shall be discontinued, or possession of the Mortgaged Property shall remain in or be restored to Mortgagor, Mortgagee shall have the right for the same default or any subsequent default to bring one or more further actions as above provided to recover possession of the Mortgaged Property. Mortgagee may bring an action in ejectment and confess judgment therein -14- before or after the institution of proceedings to foreclose this Mortgage or to enforce the Note, or after entry of judgment therein or on the Note, or after a Sheriff's sale or other judicial sale of the Mortgaged Property in which Mortgagee is the successful bidder, it being the understanding of the parties that the authorization to pursue such proceedings for obtaining possession and confession of judgment therein is an essential part of the remedies for enforcement of the Mortgage and the Note, and shall survive any execution sale to Mortgagee; or (iii) Receiver. Mortgagee may, upon any proper action or proceeding being commenced for the foreclosure of this Mortgage, apply for, and Mortgagee as a matter of right; without consideration of the value of the Mortgaged Property as security for the amount due Mortgagee, or of the solvency of any person, firm or corporation obligated for the payment of such amount, shall be entitled to, the appointment by any competent court or tribunal, without prior demand or notice to any party, of a receiver of rents and-profits and rental value of the Mortgaged Property, with power to take possession of the Mortgaged Property, including possession from Mortgagor if in possession and occupying any portion of the Mortgaged Property, and in the latter case to require Mortgagor, as a condition of remaining in possession and occupation, to pay the reasonable rental value for the use and occupation thereof, with further power to lease and repair the Mortgaged Property and to renovate same to suit new tenants and with such other powers as may be deemed necessary, and such receiver after deducting all proper charges and expenses attending the execution of the said trust -as receiver, shall each month pay over to Mortgagee the residue of the said rents and profits and rental value, to be applied by Mortgagee to the payment of the amount remaining secured hereby, or to any deficiency (whether or not any judgment therefor may be entered and irrespective of the market value of the Mortgaged Property) which may exist in the event of foreclosure-by sale after applying the proceeds of the sale of the Mortgaged Property to the payment of the amount due, including interest, costs and expenses of such foreclosure and sale, or in the event of strict foreclosure to the payment of any deficiency existing thereunder. A receiver, while in possession of the Mortgaged Property, shall have the right to make repairs and to make improvements necessary or advisable in its or his opinion to preserve the Mortgaged Property, or to make and keep them rentable to the best advantage, and Mortgagee may advance moneys to a receiver for such purposes. Any moneys so expended or advanced by Mortgagee or by a receiver shall be repaid so far as possible out of the tents collected after payment of other expenses properly chargeable against said rents, and any unpaid balance of moneys so advanced or expended shall be added to and become a part of the debt secured by this Mortgage. (c) Mortgagee shall have the right, from time to time, to bring an appropriate action to recover any sums required to be paid by Mortgagor under the terms of the Note (or any other documents evidencing the Obligations) and this Mortgage, as they become due, and proceed thereafter to an execution sale, and without prejudice to the right of Mort thereafter to bring an action of mortgage foreclosure, or any other action, for any defaugageelt by Mortgagor existing at the time the earlier action was commenced. (d) Any real estate sold pursuant to any writ or order of execution issued on a judgment obtained by virtue of the Note or this Mortgage, or pursuant to any other judicial proceedings under the Mortgage, may be sold in one parcel, as an entirety, or in such parcels, and in such manner or order as Mortgagee, in its sole discretion, may elect. 26. Non MeW. Notwithstanding the recovery or entry of any judgment against Mortgagor (whether in foreclosure or otherwise), all of the terms, provisions, covenants, undertakings and agreements of Mortgagor whether hereunder or under the Note or any other -15- note, instrument, document or undertaking of Mortgagor, whether relating thereto or not, shall remain in full force and effect and shall be enforceable strictly in accordance with their terms as fully as though no such judgment had been entered or recovered against Mortgagor, and such provisions, covenants, undertakings and agreements (including the obligation to pay the Obligations at the rate or rates set forth in the Note) shall not merge with any such judgment. 27. Cumulative Riszhts. The rights and remedies of Mortgagee as provided in this Mortgage, the Note, and every Loan Document, shall be cumulative and concurrent; may be pursued separately, successively or together against Mortgagor or against the Mortgaged Property, or both, at the sole discretion of Mortgagee; and may be exercised as often as occasion therefor shall arise. The failure to exercise any such-right or remedy shall in no event be construed as a waiver or release thereof. 28. No Waiver Implied. Any failure by Mortgagee to insist upon strict performance by Mortgagor of any of the terms and provisions of this Mortgage or the Note shall not be deemed to be a waiver of any of the terms or provisions of the Mortgage or Note, and Mortgagee shall have the right thereafter to insist upon strict performance by Mortgagor of any and all of them. Neither Mortgagor nor any other person now or hereafter obligated for payment of all or any part of the sums now or hereafter secured by this Mortgage shall be relieved of such obligation by reason of the failure of Mortgagee to comply with any request of Mortgagor or of any other person so obligated to take action to foreclose on this Mortgage or otherwise enforce any provisions of the Mortgage or the Note, or by reason of the release, regardless of consideration, of all or any part of the security held for the indebtedness secured by this Mortgage, or by reason of any agreement or stipulation between any subsequent owner of the Mortgaged Property and Mortgagee extending the time of payment or modifying the terms of the Mortgage or Note without first having obtained the consent of Mortgagor or such other person; and in the latter event Mortgagor and all such other persons shall continue to be liable to make payments according to the terms of any such extension or modification agreement, unless expressly released and discharged in writing by Mortgagee. 29. Operating Accounts and Escrow Accounts. Throughout the term of the loan secured hereby, Mortgagor's operating accounts and escrow accounts with respect to the Mortgaged Property shall be maintained with Mortgagee. 30. Waiver of Jury Trial. Mortgagor and Mortgagee (by its acceptance hereof) irrevocably waive jury trial and the right thereto in any and all disputes involving Mortgagee or Mortgagee's parent, affiliates or related entities or any officer, director, shareholder, attorney or partner of any of them, whether hereunder or under any other agreements, notes, papers, instruments or documents heretofore or hereafter executed or any other contract whether similar or dissimilar. This. shall be deemed a covenant enforceable independently of all other provisions of this Mortgage. 31. Other Waivers. Mortgagor hereby waives and releases: (a) all errors, defects and imperfections in any proceeding instituted by Mortgagee under the Note or this Mortgage, or both; (b) all benefit that might accrue to Mortgagor by virtue of any present or future law exempting the Mortgaged Property, or any part of the proceeds arising from any sale thereof, from attachment, levy or sale on execution, or providing for any stay of execution, exemption from civil process or extension of time for payment; -16- (c) unless specifically required herein, all notices of Mortgagor's default or of Mortgagee's election to exercise, or Mortgagee's actual exercise of any option under the Note, this Mortgage or the other Loan Documents; (d) after sale or sales of the Mortgaged Property any right under any statute heretofore or hereafter enacted to redeem the property so sold or any part thereof; and (e) any right to have the Mortgaged Property marshaled upon any foreclosure hereunder. The right is hereby given by Mortgagor and reserved by Mortgagee to make partial release or releases of security hereunder, agreeable to Mortgagee without notice to, or the consent, approval or agreement of other parties in interest, which partial release or releases shall not impmn in any manner the validity of or priority of this. Mortgage on the security remaining, nor release the personal liability of Mortgagor for the debt hereby secured. Mortgagor hereby expressly waives all benefit or advantage of any such law or laws to the extent that it lawfully may, and covenants not to hinder, delay or impede the execution of any power herein granted or delegated to Mortgagee, but to suffer and permit the execution of every power as though no such law or laws had been made or enacted. 32. Environmental Matters. (a) For purposes of this Paragraph 32, the term "Environmental Laws" shall mean all federal, state and local laws, regulations and orders, whether now or in the future enacted or issued, pertaining to the protection of land, water, air, health, safety or the environment. The term "Regulated Substances" shall mean all substances regulated by Environmental Laws or the presence of which may require investigation, notification or re mediation under the Environmental Laws. The term "Contamination" shall mean the discharge, release, emission, disposal or escape of any Regulated Substances into the environment. (b) Mortgagor represents and warrants that to the best of its knowledge, (i) no contamination is present at, on or under the Mortgaged Property and that no Contamination is being or has been emitted onto any surrounding property; (ii) all operations and activities on the Mortgaged Property have been and are being conducted in accordance with all Environmental Laws, and Mortgagor has an permits and licenses required under the Environmental Laws; (iii) no underground or aboveground storage tanks are or have been located on or under the Mortgaged Property; and (iv) no legal or administrative proceeding is pending or threatened relating to any environmental condition, operation or activity on the Mortgaged Properly, or any violation or alleged violation of Environmental Laws. These representations and warranties shall be true as of the date hereof, and shall be deemed to be continuing representations and warranties which must remain true, correct and accurate during the entire duration of the term of this Mortgage. (c) Mortgagor shall ensure, at its sole cost and expense, that the Mortgaged Property and the conduct of all operations and activities thereon comply and continue to comply with all Environmental Laws. Mortgagor shall notify Mortgagee promptly and in reasonable detail in the event that Mortgagor becomes aware of any violation of any Environmental Laws, the presence or release of any Contamination with respect to the Mortgaged Property, or any governmental or third party claims relating to the environmental condition of the Mortgaged Property or the conduct of operations or activities thereon. Mortgagor also agrees not to permit or allow the presence of Regulated Substances on any part of the Mortgaged Property, except for those Regulated Substances (i) which are used in the ordinary course of Mortgagor's business, but -17- only to the extent they are in all cases used in a manner which complies with all Environmental Laws; and (ii) those Regulated Substances which are naturally occurring on the Mortgaged Property. Mortgagor agrees not to cause, allow or permit the presence of any Contamination on the Mortgaged Property. (d) Mortgagee shall not be liable for, and Mortgagor shall indemnify, defend and hold Mortgagee and all of its officers, directors, employees and agents, and all of their respective successors and assigns harmless from and against all losses, costs, liabilities, damages, fines, claims, penalties and expenses (including reasonable attorneys', consultants' and contractors' fees, costs incurred in the investigation, defense and settlement of claims, as well as costs incurred in connection with the investigation, remediation or monitoring of any Regulated Substances or Contamination) that Mortgagee may suffer or incur (including as holder of the Mortgage, as mortgagee in possession or as successor in interest to Mortgagor as owner of the Mortgaged Property by virtue of a foreclosure or acceptance of a deed in lieu of foreclosure) as a result of or in connection with (i) any Environmental Laws (including the assertion that any lien existing or arising pursuant-to any Environmental Laws. takes priority over the lien of the Mortgage); (ii) the breach of any representation, warranty, covenant or undertaking by Mortgagor in this Paragraph 32; (iii) the presence on or the migration of any Contamination or Regulated Substances on, under or through the Mortgaged Property; or (iv) any litigation or claim-by the government or by any third party in connection with the environmental condition of the Mortgaged Property or the presence or migration of any Regulated Substances or Contamination on, under, to or from the Mortgaged Property. 33. Further Assurances; Replacement Documents. Mortgagor will execute and deliver such further instruments and perform such further acts as may be requested by Mortgagee from time to time to confirm the provisions of this Mortgage or the Note, to carry out more effectively the purposes of this Mortgage or the Loan Documents securing the Note, or to confirm the priority of the lien created by this Mortgage on any property, rights or interest encumbered or intended to be encumbered by the lien of this Mortgage or the Loan Documents. Upon receipt of an affidavit of an officer of Mortgagee as to the loss, thef, destruction or mutilation of the Note or any other Loan Document which is not of public record and, in the case of any such destruction or mutilation, upon surrender and cancellation of such Note or other Loan Document, Mortgagor will issue, in lieu thereot a replacement Note or other Loan Document in the same principal amount thereof and otherwise of like'tenor. 34. Indemnification. Mortgagor hereby irrevocably agrees to indemnify and save harmless Mortgagee from and against any and all loss or damage of whatsoever kind and from any suits, claims or demands, including, without limitation, Mortgagee's legal fees and expenses, on account of any matter or thing arising out of this Mortgage or in connection herewith. 35. Counsel Fees. If Mortgagee becomes a party to any suit or proceeding affecting the Mortgaged Property or title thereto, the lien created by this Mortgage or Mortgagee's interest therein, or if Mortgagee engages counsel to collect any of the indebtedness or to enforce performance of the agreements, conditions, covenants, provisions or stipulations of this Mortgage or the Loan Documents, Mortgagee's costs, expenses and reasonable counsel fees, whether or not suit is instituted, shall be paid to Mortgagee by Mortgagor, on demand, with interest at the then effective rate set forth in the Note, and until paid they shall be deemed to be part of the indebtedness evidenced by the Note and secured by this Mortgage. 36. Communications. All notices and other communications under this Mortgage shall be in writing and shall be sent to the party to receive such notice at its address set forth in -18- the heading of this Mortgage, or to such other address as either party may designate from time to time by notice to the other in the manner set forth herein. A notice shall, for all purposes, be deemed given and received: (a) if hand delivered to a party against receipted copy, when the copy of the notice is receipted; (b) if given by a nationally recognized and reputable overnight delivery service company, the day on which the notice is delivered'by the delivery service company to such party; or (c) if given by certified mail, two (2) business days after it is posted with the United States Postal Service. Notwithstanding the foregoing, any notice given by Mortgagor to Mortgagee purportedly pursuant to 42 Pa. C.S.A. §8143 shall be given by registered or certified mail, to the address of Mortgagee specified on page 1 of this Mortgage and only to that address, and such notice shall be deemed to have been received no earlier than the date actually and physically received at such address. 37. Covenant Runningwith the Land. Any act or agreement to be done or performed by Mortgagor shall be construed as a covenant running with the land and shall be binding upon Mortgagor and its successors and assigns as if they had personally made such agreement. 38. Amendment. This Mortgage cannot be changed or amended except by agreement in writing signed by the party against whom enforcement of the change is sought. 39. Governin Law and Jurisdiction. This Mortgage has been delivered to and accepted by Mortgagee and will be deemed to be made in the Commonwealth of Pennsylvania. THIS MORTGAGE WILL BE INTERPRETED AND THE RIGHTS AND.LIABELITIES OF MORTGAGOR AND MORTGAGEE DETERMINED-IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. Mortgagor hereby irrevocably consents to the exclusive jurisdiction of any state or federal court in the county or judicial district in which the Mortgaged Property is located; provided that nothing contained in this Mortgage will prevent Mortgagee from bringing any action, enforcing any award or judgment or exercising any rights against Mortgagor individually, against any seewity or against any property of Mortgagor within any other county, state or other foreign or domestic jurisdiction. Mortgagor acknowledges and agrees that the venue provided above is the most convenient forum for both Mortgagee and Mortgagor. Mortgagor waives any objection to venue and any objection based on a more convenient foram in any action instituted under this Mortgage. 40. Interpretation. Whenever used in this Mortgage, unless the context clearly indicates a contrary intent: (a) The word "Mortgagor" shall mean the entity which executes this Mortgage and any subsequent owner of the Mortgaged Property and their respective legal representatives, successors and assigns; (b) The word "Mortgagee" shall mean the person or entity specifically named herein as "Mortgagee" or any subsequent holder of this Mortgage; (c) The word "entity" shall mean individual, corporation, partnership, limited liability company or unincorporated association; (d) The use of any gender shall include all genders; (e) The singular number shall include the plural and the plural the singular as the context may require. -19- 41. Severabilitv. If any provision of this Mortgage or the application thereof is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions hereof shall not be affected thereby, and each provision of this Mortgage shall be valid and enforceable to the fullest extent permitted by law. 42. Powers ofAttomev. This Mortgage and the other Loan Documents -contain powers of attorney given by Mortgagor to Mortgagee. Such powers are coupled with an interest and are for the sole benefit of Mortgagee. Mortgagee, as agent for Mortgagor under the powers of attorney, is not a fiduciary for Mortgagor. Mortgagee, in exercising any of its rights or powers pursuant to the powers of attorney, may do so for the sole benefit of Mortgagee and not for Mortgagor. The parties acimowledge and agree that the provisions of Section 5601 of Chapter 56 of Title 20 of the Pennsylvania Consolidated Statutes; as amended, shall not be applicable to the powers of attorney granted herein and in the-other Loan Documents. 43. Captions. The captions preceding the text of the paragraphs or subparagraphs of this Mortgage are inserted only for convenience of reference and shall not constitute a part of this Mortgage, nor shall they in any way affect its meaning, construction or erect. 44. Purchase Moneg Mortgage. This Mortgage is a "purchase money mortgage" within the meaning of 42 Pa. C.S.A. §8141. WITNESS the due execution hereof as a document under seal, as of the date first written above, with the intent to be legally bound hereby. WITNESS: SHIPPENSBURG APEX, LP, a Pennsylvania limited partnership By: Shippensbmg Apex, LLC, a Pennsylvania limited liability company, its sole general partner By: 4Roert. 1h4agingg Member The address of Mortgagee is: 732 Montgomery Avenue Narberth, Pennsylvania 19072 4n Beh o agee -20- COMMONWEALTH OF PENNSYLVANIA COUNTY OF /W09% ss On this, the 26th day of October, 2007, before me, the subscriber, a Notary Public in and for the State and County aforesaid, personally appeared Robert P. Shaffer, who acknowledged himself to be the Managing Member of Shippensburg Apex, LLC, a Pennsylvania limited liability company, which is the sole general partner of SHIPPENSBURG APEX, LP, a Pennsylvania limited partnership, who I am satisfied is the person who signed the within instrument, and who acknowledged that being validly authorized to do so he executed same as such officer for the purposes therein contained as the voluntary act and deed of such limited liability company. WITNESS my hand and seal the day EXI:IIBIT A LEGAL DESCRIPTION ALL THAT CERTAIN tract of land situate in Shippensburg Township, Cumberland County, Pennsylvania, as shown on a Subdivision Plan for G & C Associates for Apex Village, by Fischbach Morgan & Associates, R.S. dated August 10, 2006, recorded in Cumberland County Recorder of Deeds Office Plan Book 93, Page 60, being designated as Lot 7, more particularly bounded and described as follows: BEGINNING at a point on the southwestern edge of Asper Drive; thence by other lands of Grantors North 43 degrees 12 minutes 00 seconds West a distance of 581.53 feet to an iron pin to be set at the comer of the storm water basin and the emergency access road as shown on the Subdivision plan; thence along the edge of the existing storm water basin North 47 degrees 18 minutes 16 seconds East a distance of 290.31 feet to an iron pin to be set; thence continuing by the edge of the storm water basin North 43 degrees 13 minutes 31 seconds West 215.75 feet to a point at lands now or formerly of Conrail Lurgan Branch Railroad; thence along said Conrail Railroad lands North 76 degrees 48 minutes 08 seconds East a distance of 10635 feet to a point; thence continuing by said Conrail Railroad property North 79 degrees 38 minutes 43 seconds East a distance of 306.07 feet to a point; thence along other lands of G & C Associates South 42 degrees 44 minutes 58 seconds East a distance of 581.17 feet to a point; thence by other lands of G & C Associates on the southeastern Asper Drive South 47 degrees 18 minutes 23 seconds West a distance of 634.90 feet to an existing iron pin, the point and place of BEGINNING. CONTAINING 9.388 acres, more or less and being all of Lot. 7. BEING a portion of the real estate which Galen S. Asper and Jeannette A. Asper, .by their attorney in fact by deed dated July 30, 1992 and recorded in Cumberland County Deed Book "L" Volume 36, page 809, granted and conveyed to H. Scott Garling and Michael J. Cassidy, co-partners, t/d/b/a G & C Associates. H. Scott Garling died July 29, 1994. Letters of Administration were issued to Barbara L. Garling on August .8, 1994, by the Cumberland County Register of Wills. By specific provision of the Partnership Agreement between K Scott Garling and Michael J. Cassidy, the personal representative of a deceased partner, suixwded to the interest of the deceased partner and continued to conduct partnership business. Barbara L. Garling previously elected to succeed to the interest of the deceased partner, but has since withdrawn from the partnership. Julie A. Cassidy became a partner and joined in the deed of conveyance with Michael J. Cassidy as Grantors to Educational Property Group, Inc. The parties who executed the deed of conveyance were all of the partners of G & C Associates, and their deed of conveyance was approved in accordance with the requirements of the Partnership Agreement. BEING Tax Parcel Number. 36-35-2385-131 ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 201017880 Recorded On 7/6/2010 At 10:45:00 AM * Total Pages - 5 * Instrument Type - ASSIGNMENT OF MORTGAGE Invoice Number - 68541 User ID - AF * Mortgagor - ROYAL BANK AMERICA * Mortgagee - NARBERTH PROPERTY ACQUISITION LLC * Customer - WEIR * FEES STATE WRIT TAX STATE JCS/ACCESS TO JUSTICE RECORDING FEES - RECORDER OF DEEDS PARCEL CERTIFICATION FEES COUNTY ARCHIVES FEE ROD ARCHIVES FEE TOTAL PAID $0.50 $23.50 Certification Page DO NOT DETACH $11.50 $10.00 $2.00 $3.00 $50.50 This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA of C M F E RECORDER O D DS t?ao * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. III i?uiiiniiiiidmi Prepared By: Daniel D. Haggerty, Esquire Weir & Partners LLP 1339 Chestnut Street Widener Building Suite 500 Philadelphia PA 19107 Parcel No. 36-35-2385-131 ASSIGNMENT OF MORTGAGE V??InI?'d?IIViV?I? KNOW ALL MEN BY THESE PRESENTS, that ROYAL BANK AMERICA, with an office located at 732 Montgomery Avenue, Narberth, PA 19072 ("Assignor"), the mortgagee in the mortgage hereinafter mentioned, for and in consideration of the sum of One Dollar ($1.00) lawful money, unto it in hand paid at the time of execution hereof, the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell, assign, transfer, and set over unto NARBERTH PROPERTY ACQUISITION, LLC, with an office located at 732 Montgomery Avenue, Narberth, PA 19072 ("Assignee"), its successors and assigns, all that certain Open-End Mortgage and Security Agreement given and executed by Shippensburg Apex, LP to Royal Bank America, dated October 26, 2007 (the "Mortgage"), and recorded on November 8, 2007 with the Recorder of Deeds of Cumberland County, Commonwealth of Pennsylvania at Instrument No. 200742316, to secure the payment of the principal sum of $16,667,015.00 and known as a tract of land situate in Shippensburg Township, Cumberland County, Pennsylvania beginning at a point on the southwestern edge of Asper Drive, containing 9.388 acres, more or less and being all of Lot 7, Parcel No. 36-35-2385-131 and described as follows: See attached Exhibit "A" 360211-1 Together will all singular rights, remedies and incidents thereunto belonging, and all its right, title, interest, property, benefit, advantage, claim and demand in and to the same and every part thereof. To have, hold, receive and take all and singular the hereditaments and premises hereby granted and assigned or mentioned and intended to with the appurtenances and unto the said Assignee, its successors and assigns, to and for its only property use, benefit and behoof forever. IN WITNESS WHEREOF, the undersigned officer, having due authority to do so, has caused this instrument to be executed on this 29th day of June, 2010. ROYAL BANK AMERICA Attest: By. (Seal) avid A. Schultz, Senior Vice P ent 360211-1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA ss. On this, the `'--F- day of , 2010, before me, a Notary Public in and for the Commonwealth of Pennsylvania, personal y appeared David A. Schultz, the Senior Vice President of Royal Bank America, who acknowledged himself to be the person whose name is subscribed to the within instrument, and executed the foregoing instrument for the purposes therein contained and desired that the same be recorded as such. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Expires I DA t,I o COMMONWEALTH OF PENNSYLVANIA Notarial Seal Christina ZuNo, Notary Public City Of Philadelphia, Philadelphia County My Cornnvssion E)ires Dec. 17, 2011 Member, Pennsylvania Association of Notaries 360211-1 . EXHIBIT "A" LEGAL DESCRIPTION ALL THAT CERTAIN tract of land situate in Shippensburg Township, Cumberland County, Pennsylvania, as shown on a Subdivision Plan for G&C Associates for Apex Village, by Fischbach Morgan & Associates, R.S. dated August 10, 2006, recorded in Cumberland County Recorder of Deeds Office Plan Book 93, Page 60, being designated as Lot 7, more particularly bounded and described as follows: BEGINNING at a point on the southwestern edge of Asper Drive; thence by other lands of Grantors North 43 degrees 12 minutes 00 seconds West a distance of 581.53 feet to an iron pin to be set at the corner of the storm water basin and the emergency access road as shown on the Subdivision plan; thence along the edge of the existing storm water basin North 47 degrees 18 minutes 16 seconds East a distance of 290.31 feet to an iron pin to be set; thence continuing by the edge of the storm water basin North 43 degrees 13 minutes 31 seconds West 215.75 feet to a point at lands now or formerly of Conrail Lurgan Branch Railroad; thence along said Conrail Railroad lands North 76 degrees 48 minutes 08 seconds East a distance of 106.35 feet to a point; thence continuing by said Conrail Railroad property North 79 degrees 38 minutes 43 seconds East a distance of 306.07 feet to a point; thence along other lands of G&C Associates South 42 degrees 44 minutes 58 seconds East a distance of 581.17 feet to a point; thence by other lands of G&C Associates on the southeastern Asper Drive South 47 degrees 18 minutes 23 seconds West a distance of 634.90 feet to an existing iron pin, the point and place of BEGINNING. CONTAINING 9.388 acres, more or less and being all of Lot 7. BEING a portion of the real estate which Galen S. Asper and Jeannette A. Asper, by their attorney in fact by deed dated July 30, 1992 and recorded in Cumberland County Deed Book "L" Volume 36, Page 809, granted and conveyed to H. Scott Garling and Michael J. Cassidy, co- partners, t/d/b/a G&C Associates. H. Scott Garling died July 29, 1994. Letters of Administration were issued to Barbara L. Garling on August 8, 1994, by the Cumberland County Register of Wills. By specific provision of the Partnership Agreement between H. Scott Garling and Michael J. Cassidy, the personal representative of a deceased partner, succeeded to the interest of the deceased partner and continued to conduct partnership business. Barbara L. Garling previously elected to succeed to the interest of the deceased partner, but has since withdrawn from the partnership. Julie A. Cassidy became a partner and joined in the deed of conveyance with Michael J. Cassidy as Grantors to Educational Property Group, Inc. The parties who executed the deed of conveyance were all of the partners of G&C Associates, and their deed of conveyance was approved in accordance with the requirements of the Partnership Agreement. BEING Tax Parcel Number: 36-35-2385-131 ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 201018539 Recorded On 7/12/2010 At 10:15:04 AM * Total Pages - 6 *-Instrument Type - DEED Invoice Number - 68903 User ID - KW * Grantor - SHIPPENSBURG APEX LP * Grantee - NARBERTH PROPERTY ACQUISITION LLC * Customer - WEIR & PARTNERS LLP * FEES STATE WRIT TAX STATE JCS/ACCESS TO JUSTICE RECORDING FEES - RECORDER OF DEEDS PARCEL CERTIFICATION FEES AFFORDABLE HOUSING COUNTY ARCHIVES FEE ROD ARCHIVES FEE SHIPPENSBURG AREA SCHOOL DISTRICT SHIPPENSBURG TOWNSHIP TOTAL PAID $0.50 $23.50 $12.50 $10.00 $11.50 $2.00 $3.00 $0.00 $0.00 $63.00 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA co?e? 0 `o RECORDER O D ;DS r? * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. m Prrb a IIpII I1dINIIN __ 0020W3 Daniel 579aggerz!7! e DEED IN LIEU OF FORECLOSURE 70 THIS DEED IN LIEU OF FORECLOSURE is made this 21 day of June, 2010, by and between SHIPPENSBURG APEX, LP, a Pennsylvania limited partnership (hereinafter "Grantor"), with a principal place of business of 401 East Elm Street, Conshohocken, Pennsylvania 19428, and NARBERTH PROPERTY ACQUISITION, LLC ("Grantee"), a state bank organized and existing under the laws of the Commonwealth of Pennsylvania with an office located at 732 Montgomery Avenue, Narberth, Pennsylvania 19072. Witnesseth; that the Grantor, for and in consideration of the sum of One Dollar ($1.00) lawful money of the United States of America, unto it well and truly paid by the said Grantee, at or before the sealing and delivery, hereof, the receipt whereof is hereby acknowledged, has granted, bargained and sold, aliened, released and confirmed and by these does present grant, bargain and sell, alien, release and confirm unto the said Grantee, its successors and assigns. All That Certain tract of land situate in Shippensburg Township, Cumberland County, Pennsylvania, beginning at a point on the southwestern edge of Asper Drive, containing 9.388 acres, more or less and being all of Lot 7, Parcel No. 36-35-2385-131, (the "Premises"), and, all as more particularly described on Exhibit "A" attached hereto and made a part hereof. Together with all singular the tenements, hereditaments and appurtenances, thereunto belonging, or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof; And also, all the estate, right, title, interest, property, claim and demand whatsoever, as well as in law as in equity of the said parties of the first part, of, in, or to the above-described premises, and every part and parcel thereof with appurtenances. To have and to hold all and singular the above-mentioned and described premises, together with the appurtenances, unto the'said party of the second part, its successors and assigns forever. UNDER AND SUBJECT, NEVERTHELESS TO THAT CERTAIN OPEN-END MORTGAGE AND SECURITY AGREEMENT IN THE AMOUNT OF $16,667,015.00 DATED OCTOBER 26, 2007, GIVEN BY GRANTOR TO ROYAL BANK AMERICA, WHICH MORTGAGE WAS DULY RECORDED ON NOVEMBER 8, 2007 WITH THE RECORDER OF DEEDS OF CUMBERLAND COUNTY AT INSTRUMENT NO. 200742316 (THE "MORTGAGE"). IT BEING EXPRESSLY INTENDED THAT THE EXECUTION AND DELIVERY OF THIS INDENTURE BY GRANTOR TO GRANTEE SHALL NOT DISCHARGE BY MERGER SAID MORTGAGES, AND THE OBLIGATIONS THAT IT SECURES. UNDER NO CIRCUMSTANCES SHALL ANY SUCH MERGER OCCUR UNTIL SUCH TIME AS MORTGAGEE EXECUTES AND RECORDS IN THE OFFICE OF THE RECORDER OF DEEDS, PH ILADELPHIA COUNTY, COMMONWEALTH OF PENNSYVLANIA, A WRITTEN SATISFACTION INSTRUMENT SPECIFICALLY EFFECTUATING SUCH MERGER. THIS IS A DEED IN LIEU OF FORECLOSURE OF THE FOREGOING RECITED MORTGAGE, INSOFAR AS GRANTOR IS THE FEE OWNER OF THE PREMISES CONVEYED HEREBY, WHICH IS ENCUMBERED BY SAID MORTGAGE AND MORTGAGEE IS THE HOLDER OF SAME. IT IS THE INTENTION OF THE GRANTOR TO TRANSFER ABSOLUTE TITLE TO THE WITHIN DESCRIBED PREMISES TO GRANTEE AND ITS SUCCESSORS AND ASSIGNS FREE OF ANY EQUITY OF REDEMPTION OF GRANTOR OR ITS SUCCESSOR OR ASSIGNS. IN THE EVENT OF THE SETTING ASIDE OF THIS CONVEYANCE AND/OR ANY PROCEEDINGS INITIATED UNDER THE BANKRUPTCY CODE, MORTGAGEE SHALL HAVE THE RIGHT TO PROCEED TO FORECLOSURE OF THE MORTGAGE AS IF THIS INSTRUMENT HAD NOT BEEN EXECUTED AND DELIVERED TO GRANTEE. THIS TRANSFER IS EXEMPT FROM PENNSYLVANIA STATE REALTY TRANSFER TAX PURSUANT TO 72. P.S. SECTION 8102-C.3(16) BECAUSE IT IS A TRANSFER TO THE HOLDER OF A BONA FIDE MORTGAGE IN DEFAULT IN LIEU OF FORECLOSURE. IN WITNESS WHEREOF, the said Grantor has caused these presents to be duly executed dated the day and year first above written. GRANTOR: ATTEST: SHIPPENSBURG APEX, LP, a Pennsylvania Limited Partnership By: SHIPPENSBURG APEX, LLC, a Pennsylvania Limited Liability Company, Its sole general partner By 359908-1 2 - s COMMONWEALTH OF PENNSYLVANIA : ss COUNTY OF \Q.j On this a'\ day of June, 2010, before me the undersigned personally appeared Robert P. Shaffer, who acknowledged himself to be the Managing Member of Shippensburg Apex, LLC, the sole general partner of Shippensburg Apex, LP, a Pennsylvania Limited Partnership, who signed the foregoing instrument, and who did acknowledge that he signed, sealed and delivered the same, and that the foregoing instrument is the voluntary act and deed of Robert P. Shaffer, for the purpose therein expressed, and who made this Deed on behalf of Shippensburg Apex, LP for the sum of $1.00 as the full and actual consideration paid for the transfer of such title. Witness my hand and official seal the day and year aforesaid. COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA Notary Pu I' COMMONWEALTH OF PENNSYLVANIA Notarial Seal Christina Zullo, Notary Public City Of Phiadeiphia, Philadeipnia County My Commission E)ires Dec. 17, 2011 Member, Pennsylvania Association of Notaries : ss On this QFday of June, 2010, before me, personally appeared, Mr. Robert P. Shaffer known to me or satisfactorily proven to be the person whose name is subscribed to the foregoing instrument, and acknowledged that they executed it for the purposes therein contained. Witness my hand and official seal the ay and year a resaid Notary Pu li COMMONWEALTH OF PENNSYLVANIA Notarial Seal Christina Zmlo, Notary Public City Of Philadelphia, Philadelphia County My Commission E)pires Dec. 17, 2011 Member, Pennsylvania Association of Notaries The address of the within named Grantee is: Narberth Property Acquisition, LLC 732 Montgomery Avenue Narberth, PA 19072 359908-1 EXHIBIT "A" LEGAL DESCRIPTION ALL THAT CERTAIN tract of land situate in Shippensburg Township, Cumberland County, Pennsylvania, as shown on a Subdivision Plan for G&C Associates for Apex Village, by Fischbach Morgan & Associates, R.S. dated August 10, 2006, recorded in Cumberland County Recorder of Deeds Office Plan Book 93, Page 60, being designated as Lot 7, more particularly bounded and described as follows: BEGINNING at a point on the southwestern edge of Asper Drive; thence by other lands of Grantors North 43 degrees 12 minutes 00 seconds West a distance of 581.53 feet to an iron pin to be set at the corner of the storm water basin and the emergency access road as shown on the Subdivision plan; thence along the edge of the existing storm water basin North 47 degrees 18 minutes 16 seconds East a distance of 290.31 feet to an iron pin to be set; thence continuing by the edge of the storm water basin North 43 degrees 13 minutes 31 seconds West 215.75 feet to a point at lands now or formerly of Conrail Lurgan Branch Railroad; thence along said Conrail Railroad lands North 76 degrees 48 minutes 08 seconds East a distance of 106.35 feet to a point; thence continuing by said Conrail Railroad property North 79 degrees 38 minutes 43 seconds East a distance of 306.07 feet to a point; thence along other lands of G&C Associates South 42 degrees 44 minutes 58 seconds East a distance of 581.17 feet to a point; thence by other lands of G&C Associates on the southeastern Asper Drive South 47 degrees 18 minutes 23 seconds West a distance of 634.90 feet to an existing iron pin, the point and place of BEGINNING. CONTAINING 9.388 acres, more or less and being all of Lot 7. BEING a portion of the real estate which Galen S. Asper and Jeannette A. Asper, by their attorney in fact by deed dated July 30, 1992 and recorded in Cumberland County Deed Book "L" Volume 36, Page 809, granted and conveyed to H. Scott Garling and Michael J. Cassidy, co- partners, t/d/b/a G&C Associates. H. Scott Garling died July 29, 1994. Letters of Administration were issued to Barbara L. Garling on August 8, 1994, by the Cumberland County Register of Wills. By specific provision of the Partnership Agreement between H. Scott Garling and Michael J. Cassidy, the personal representative of a deceased partner, succeeded to the interest of the deceased partner and continued to conduct partnership business. Barbara L. Garling previously elected to succeed to the interest of the deceased partner, but has since withdrawn from the partnership. Julie A. Cassidy became a partner and joined in the deed of conveyance with Michael J. Cassidy as Grantors to Educational Property Group, Inc. The parties who executed the deed of conveyance were all of the partners of G&C Associates, and their deed of conveyance was approved in accordance with the requirements of the Partnership Agreement. BEING Tax Parcel Number: 36-35-2385-131 WEIR & PARTNERS LLP By: Daniel D. Haggerty, Esquire Attorney ID No. 77894 The Widener Building, Suite 500 1339 Chestnut Street Philadelphia, PA 19107 dhaggerty@weirpartners.com P: (215) 665-8181 F: (215) 665-8464 Attorneys for Narberth Property Acquisition, LLC NARBERTH PROPERTY ACQUISITION, LLC 732 Montgomery Avenue Narberth, PA 19072 Plaintiff, V. NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP 732 Montgomery Avenue Narberth, PA 19072 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION C -*' X;0 M -< N W oa n -?t 0 n +C rn c tv PETITION FOR JUDGMENT IN MORTGAGE FORECLOSURE BY CONSENT TO THE PROTHONOTARY: Kindly enter the Proposed Judgment in Mortgage Foreclosure by Consent. Dated: August 23, 2011 Counsel for Narberth Property Acquisition, LLC WEIR & PARTNERS LLP By: Daniel D. Haggerty, Esquire Attorney ID No. 77894 The Widener Building, Suite 500 1339 Chestnut Street Philadelphia, PA 19107 dhaggerty@weirpartners.com P: (215) 665-8181 F: (215) 665-8464 Attorneys for Narberth Property Acquisition, LLC NARBERTH PROPERTY ACQUISITION, LLC 732 Montgomery Avenue : Narberth, PA 19072 Plaintiff, V. NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP 732 Montgomery Avenue Narberth, PA 19072 Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO. CERTIFICATE OF SERVICE I, Daniel D. Haggerty, Esquire, hereby certify that a copy of the Petition for Judgment in Mortgage Foreclosure by Consent was served via U.S. First Class Mail, postage prepaid upon the following: NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP c/o Daniel D. Haggerty, Esquire The Widener Building, Suite 500 1339 Chestnut Street Philadelphia, PA 19107 Date: August 23, 2011 WEIR & PARTNERS LLP By: Daniel D. Haggerty, Esquire Attorney ID No. 77894 The Widener Building, Suite 500 1339 Chestnut Street Philadelphia, PA 19107 dhaggerty@weirpartners.com P: (215) 665-8181 F: (215) 665-8464 Attorneys for Narberth Property Acquisition, LLC NARBERTH PROPERTY ACQUISITION, LLC 732 Montgomery Avenue Narberth, PA 19072 Plaintiff, V. NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP 732 Montgomery Avenue Narberth, PA 19072 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO . zr^ C r r ?o o An Ma Z Z " y..z = .. n ?rn cn ; ;0 JUDGMENT IN MORTGAGE FORECLOSURE BY CONSENT AND NOW, this 2y' day of 2011, it is hereby ORDERED and DECREED that Judgment in Mortgage Foreclosure is hereby entered in favor of Plaintiff, Narberth Property Acquisition, LLC and against Defendant, Narberth Property Acquisition, LLC in the total amount of $16,696,693.48 as of August 12, 2011, plus continuing interest, attorneys' fees and cost until paid in full. BY THE COURT: J. w +i4.oo ?? C n`5?f 988 ?s a'??arab ?a?3?sa y T Approved as to form: WEIR & PARTNERS LLP BY: -Q -)- -- Daniel D. Haggerty, Esquire Counsel for Narberth Property Acquisition, LLC (Plaintiff and Defendant) THORP REED & ARMSTRONG, LLR ErJTNIPIT?' By: JONATHAN W. HUGG 7D13 JAPE _8 AM 9. 55 j hugg@a,thorpreed. com Attorney ID No. 73589 1'(1P1?ERlA10 ?Y for Plaintiff, One Commerce Square, Suite 1000 pNSYL o Yberneyrth Property Acquisition, LLC. 2005 Market Street Philadelphia, PA 19103 Phone: (215) 640-8500 Fax: (215) 640-8501 NARBERTH PROPERTY ACQUISITION, LLC, Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY V. NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP Defendant. : NO. 11-6698 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Jonathan W. Hugg, Esquire of Thorp Reed & Armstrong, LLP on behalf of Plaintiff, Narberth Property Acquisition, LLC. Dated: December 26, 2012 THORP REED & ARMSTRONG, LLP By:- k? 9 JONATHAN W. GG, Esq. Attorney ID No.73589 One Commerce Square, Suite 1000 2005 Market Street, Suite 1000 Philadelphia, PA 19103 (215) 640-8500 j huggna,thorpreed. c om (PO16T790) THORP REED & ARMSTRONG, LLP By: JONATHAN W. HUGG jhugg@thorgreed.com Attorney ID No. 73589 One Commerce Square, Suite 1000 2005 Market Street Philadelphia, PA 19103 Phone: (215) 640-8500 Fax: (215) 640-8501 NARBERTH PROPERTY ACQUISITION, LLC, Plaintiff, V. NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP Defendant. Attorney for Plaintiff, Narberth Property Acquisition, LLC. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 11-6698 CERTIFICATE OF SERVICE I, Jonathan W. Hugg, hereby certify that I caused to be served, this 26th day of December, 2012, a true and correct copy of my Entry of Appearance, via first class mail, postage prepaid, as follows: Narberth Property Acquisition, LLC 732 Montgomery Avenue Narberth, PA 19072 (Defendant) December 26, 2012 w l JONATHAN W. H G, Esq. {eo1e779o} THORP REED & ARMSTRONG ItilO ` By: JONATHAN W. HUGG 2013 JAN -g AM 9: 55 Jhuggka thorpreed.com Attorney ID No. 73589 CUMSE LAND COUNTY One Commerce Square, Suite 1000 PENNSYLVANIA Attorney for Plaintiff, 2005 Market Street Narberth Property Acquisition, LLC. Philadelphia, PA 19103 Phone: (215) 640-8500 Fax: (215) 640-8501 NARBERTH PROPERTY ACQUISITION, LLC, Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY V. NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP Defendant. : NO. 11-6698 PRAECIPE TO SATISFY JUDGMENT TO THE PROTHONOTARY: Kindly mark the judgment in the above-captioned matter as Satisfied. Dated: December 26, 2012 THORP REED & ARMSTRONG, LLP By: " JONATHAN W. INUGG, Esq. Attorney ID No.73589 One Commerce Square, Suite 1000 2005 Market Street, Suite 1000 Philadelphia, PA 19103 (215) 640-8500 jhugg@thorpreed.com 0 I ? ?,? ? gSo? (o THORP REED & ARMSTRONG, LLP By: JONATHAN W. HUGG j hugg(&thorpreed.com Attorney ID No. 73589 One Commerce Square, Suite 1000 2005 Market Street Philadelphia, PA 19103 Phone: (215) 640-8500 Fax: (215) 640-8501 NARBERTH PROPERTY ACQUISITION, LLC, Plaintiff, V. NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP Defendant. Attorney for Plaintiff, Narberth Property Acquisition, LLC. COURT OF COMMON PLEAS CUMBERLAND COUNTY : NO. 11-6698 CERTIFICATE OF SERVICE I, Jonathan W. Hugg, hereby certify that I caused to be served, this 26th day of December, 2012, a true and correct copy of the foregoing Praecipe to Satisfy Judgment, via first class mail, postage prepaid, as follows: Narberth Property Acquisition, LLC 732 Montgomery Avenue Narberth, PA 19072 (Defendant) December 26, 2012 'N? ?rJ ?Jl{, JONATHAN W. HU , Esq. IP0167791} THORP REED & ARMSTRONG;:LILW ORO x HotJI IAR By: JONATHAN W. HUGG jhugg_gthorpreed.com W3 JAN "8 AM 9' 55 Attorney ID No. 73589 CUMSERLAND GOV TA&orney for Plaintiff, One Commerce Square, Suite 1000 ?Et 14S*L11ANIA Narberth Property Acquisition, LLC. 2005 Market Street Philadelphia, PA 19103 Phone: (215) 640-8500 Fax: (215) 640-8501 NARBERTH PROPERTY ACQUISITION, LLC, Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY V. NO. 11-6698 NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP Defendant. PRAECIPE TO SETTLE, DISCONTINUE AND END WITHOUT PREJUDICE TO THE PROTHONOTARY: Please mark the above-captioned matter settled, discontinued and ended, without prejudice. THORP REED & ARMSTRONG LLP By: W /,E-sq-. JONATHAN W. 2_3 Attorney ID No.73589 One Commerce Square, Suite 1000 2005 Market Street, Suite 1000 Philadelphia, PA 19103 (215) 640-8500 j hugg.@a,thomreed. com Dated: December 26, 2012 {P0167792} THORP REED & ARMSTRONG, LLP By: JONATHAN W. HUGG ihuga(aAhorpreed.com Attorney ID No. 73589 One Commerce Square, Suite 1000 2005 Market Street Philadelphia, PA 19103 Phone: (215) 640-8500 Fax: (215) 640-8501 NARBERTH PROPERTY ACQUISITION, LLC, Plaintiff, V. NARBERTH PROPERTY ACQUISITION, LLC, Successor in Title to Shippensburg Apex, LP Defendant. Attorney for Plaintiff, Narberth Property Acquisition, LLC. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 11-6698 CERTIFICATE OF SERVICE I, Jonathan W. Hugg, hereby certify that I caused to be served, this 26th day of December, 2012, a true and correct copy of the foregoing Praecipe to Settle, Discontinue and End, Without Prejudice, via first class mail, postage prepaid, as follows: Narberth Property Acquisition, LLC 732 Montgomery Avenue Narberth, PA 19072 (Defendant) December 26, 2012 (A ? I l? t)'' f L JONATHAN W. HUG (f, Esq. {P016779z,