HomeMy WebLinkAbout11-6928
WG DEVELOPMENT, LLC,
Plaintiff,
VS.
CONSTANTINOS J. MALLIOS and
ELAINE MALLIOS, husband and wife,
Defendants.
IN THE COURT OF COMMON PLEAS OF c
CUMBERLAND COUNTY, PENNSN2VANIA n
z? ?
I / G
?
f -?
rn
0
l ?
NO. f ( -
1
Gx' " ? p
? 'F7 c5 -n
ACTION FOR DECLARATORY
r
C) i
JUDGMENT r
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 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 LAWYER REFERRAL SERVICE
32 S. Bedford Street
Carlisle, PA 17013
(800) 990-9108
?? 3?3-
I 1
WG DEVELOPMENT, LLC,
Plaintiff,
CUALIFICAN.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
vs.
CONSTANTINOS J. MALLIOS and
ELAINE MALLIOS, husband and wife,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
ACTION FOR DECLARATORY
JUDGMENT
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de
los proximos veinte (20) dias despuds de la notificacion de esta Demanda y Aviso radicando
personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le
advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la
Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA
OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN
ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE
QUE ESTA OFICINA LE PUEDA PROVEER 1NFORMACION SOBRE AGENCIAS QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE
32 S. Bedford Street
Carlisle, PA 17013
(800) 990-9108
SMIGEL, ANDERSON & SACKS, LLP
River Chase Office Center
4431 North Front Street, 3rd Floor
Harrisburg, PA 17110-1778
(717) 234-2401
WG DEVELOPMENT, LLC,
vs.
Plaintiff,
Peter M. Good, Esquire
I.D. No. 64316
Darryl J. Liguori, Esquire
I.D. No. 91715
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. C I, ? q IV (,-4-: I
CONSTANTINOS J. MALLIOS and
ELAINE MALLIOS, husband and wife, ACTION FOR DECLARATORY
Defendants. JUDGMENT
PLAINTIFF'S ACTION FOR DECLARATORY JUDGMENT
AND NOW COMES Plaintiff WG Development, LLC, by and through its attorneys,
Smigel, Anderson & Sacks, LLP, to file this Action for Declaratory Judgment against
Defendants Constantinos J. Mallios and Elaine Mallios, husband and wife, and avers in support
as follows:
1. Plaintiff WG Development, LLC (hereinafter "Plaintiff") is a Pennsylvania
limited liability company with a principal place of business located at 800 Bullfrog Road,
Gettysburg, Adams County, Pennsylvania 17325.
2. Defendants Constantinos J. Mallios and Elaine Mallios, husband and wife,
(hereinafter "Defendants") are adult individuals who reside at 715 Sandbank Road, Mount Holly
Springs, Cumberland County, Pennsylvania 17065.
3. This Honorable Court has jurisdiction and venue over this Action for Declaratory
Judgment because Defendants reside in Cumberland County and the Property that is the subject
of this Complaint is located in Cumberland County.
4. Defendants are the former owners of the Property which is the subject of this
Complaint. The Property consists of lots and real estate situated in the Township of South
Middleton and Mt. Holly Springs Borough, Cumberland County, being part of Phases 5, 6, and 7
of Westgate Development, which Plan was recorded on May 21, 2007 in the Cumberland County
Recorder of Deeds Office in Plan Book Volume 94, Page 59.
5. On May 16, 2007, Defendants executed an Open-End Construction Mortgage,
Security Agreement, Assignment of Leases and Rents and Fixture Filing (hereinafter "Open-End
Mortgage") in favor of Integrity Bank as Mortgagee.
6. The Mortgage was recorded on May 21, 2007 in the Cumberland County
Recorder of Deeds Office in Book 1992, Page 4955. A true and correct copy of the Open-End
Mortgage is attached hereto as "Exhibit A."
7. On January 26, 2011, Integrity Bank assigned the Open-End Mortgage to
Plaintiff. The Assignment was recorded on January 31, 2011 in the Cumberland County
Recorder of Deeds Office as Instrument #201103539. A true and correct copy of the Assignment
is attached hereto as "Exhibit B."
8. As of January 26, 2011, the date of the Assignment, Defendants were in default
under the terms of the Open-End Mortgage.
9. In anticipation of the Assignment and as security therefore, Defendants executed a
Deed in Lieu of Foreclosure naming Plaintiff as Grantee to be held in escrow and delivered if
Defendants' default of the Mortgage was not cured. A true and correct copy of the Deed in Lieu
of Foreclosure is attached hereto as "Exhibit C."
10. On January 26, 2011, the Deed in Lieu of Foreclosure was delivered to Plaintiffs
counsel to hold in escrow.
2
11. Although dated and notarized on January 25, 2011, the Deed in Lieu of
Foreclosure was not effective until it was delivered out of escrow.
12. As of March 22, 2011, Defendants had not cured the default and the Deed in Lieu
of Foreclosure was delivered out of escrow and recorded on March 23, 2011 in the Cumberland
County Recorder of Deeds Office as Instrument #201109047.
13. The parties request a determination from this Honorable Court that the Deed in
Lieu of Foreclosure was held in escrow until March 22, 2011 when it was delivered to the
Plaintiff for recording and therefore it is effective as of March 22, 2011, not January 25, 2011,
the date it was signed.
14. There are no disputed facts in this matter and the parties stipulate and agree to the
relief requested in this Declaratory Judgment Complaint. A true and correct copy of the
Stipulation executed by all parties is attached hereto as "Exhibit D."
WHEREFORE, Plaintiff WG Development, LLC prays for entry of a judgment declaring
that the Deed in Lieu of Foreclosure be deemed effective as of March 22, 2011, the date it was
delivered to the Plaintiff for recording.
Respectfully submitted,
SMIGEL, ANDERSON & SACKS, L.L.P.
Date: V I I I By:
Peter M. Good, Esqu re ID #64316
Darryl J. Liguori, Esquire ID #91715
4431 North Front Street
Harrisburg, PA 17110
(717) 234-2401
Attorneys fir Plaintiff
3
WG DEVELOPMENT, LLC,
Plaintiff,
VS.
CONSTANTINOS J. MALLIOS and
ELAINE MALLIOS, husband and wife,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
ACTION FOR DECLARATORY
JUDGMENT
VERIFICATION
The undersigned, Thomas E. Varish, hereby verifies that he is a Member of Plaintiff WG
Development, LLC in the foregoing action, and that the facts set forth in the Action for
Declaratory Judgment are true and correct to the best of his knowledge, information, and belief,
and further states that false statements herein are made subject to he penalties of 18 Pa. C.S.A. §
4904 relating to unsowrn falsification to authorities.
Date: Cv j (-
VJ
Thomas E. Varish, Member
WG Development, LLC
Gx?'b`? ?
OPEN-END CONSTRUCTION MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS, AND FIXTURE FILING
(This Mortgage Secures Future Advances)
THE MORTGAGEE (SECURED PARTY) DESIRES THIS MORTGAGE
BE INDEXED AS A FIXTURE FILING AGAINST THE MORTGAGOR (DEBTOR)
N OF THE REAL ESTATE DESCRIBED HEREIN
M
OIS OPEN-END CONSTRUCTION MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS, AND FIXTURE FILING ("Mortgage") is made as of
May 16007, by CONSTANTINOS J. MALLIOS and ELAINE MALLIOS, husband and wife,
who resii* at 715 Sandbank Road, Mount Holly Springs, Pennsylvania 17065 ("Mortgagor"),
in favor:'*1 INTEGRITY BANK, a Pennsylvania banking institution, having an address at 3345
Market S#reet, Camp Hill, Pennsylvania 17011 ("Mortgagee").
WHEREAS, Borrower is the owner in fee of those certain tracts or parcels of land
consisting which comprise Phases 5, 6, 7 and 8 of a residential subdivision commonly known as
Westgate located in South Middleton Township and the Borough of Mount Holly Springs,
Cumberland County, Pennsylvania, which is more particularly described in Exhibit A attached
hereto and made a part hereof, together with the improvements now or hereafter erected
thereon; and
WHEREAS, the Borrower has borrowed from the Mortgagee, and Mortgagor are
executing and delivering this Mortgage as collateral security for certain borrowings from the
Mortgagee, in an amount not to exceed Three Million Five Hundred Thousand Dollars
($3,500,000) (the "Loan"), which Loan is evidenced by one or more promissory notes of
Borrower in favor of the Mortgagee (the "Note") and a certain Construction Loan Agreement of
even date (the "Agreement").
NOW, THEREFORE, for the purpose of securing the payment and performance of the
following obligations (collectively called the "Obligations"):
(A) The Loan, the Note and all other loans, advances, debts, liabilities, obligations,
covenants and duties owing by the Mortgagor to the Mortgagee, of any kind or nature, present
or future (including any interest accruing thereon after maturity, or after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding
relating to the Mortgagor, whether or not a claim for post-filing or post-petition interest is allowed
in such proceeding), whether or not evidenced by any note, guaranty or other instrument,
whether arising under any agreement, instrument or document, whether or not for the payment
of money, whether arising by reason of an extension of credit, opening of a letter of credit, loan,
equipment lease or guarantee, under any interest or currency swap, future, option or other
interest rate protection or similar agreement, or in any other manner, whether arising out of
overdrafts on deposit or other accounts or electronic funds transfers (whether through
automated clearing houses or otherwise) or out of the Mortgagee's non-receipt of or inability to
collect funds or otherwise not being made whole in connection with depository transfer check or
other similar arrangements, whether direct or indirect (including those acquired by assignment
or participation), absolute or contingent, joint or several, due or to become due, now existing or
hereafter arising, and any amendments, extensions, renewals or increases and all costs and
expenses of the Mortgagee incurred in the documentation, negotiation, modification,
{A941933:1}
BK199 Fu;-?5
enforcement, collection or otherwise in connection with any of the foregoing, including
reasonable attorneys' fees and expenses.
(B) Any sums advanced by the Mortgagee or which may otherwise become due
pursuant to the provisions of the Note or this Mortgage or pursuant to the Agreement or any
other document or instrument at any time delivered to the Mortgagee to evidence or secure any
of the Obligations or which otherwise relate to any of the Obligations (as the same may be
amended, supplemented or replaced from time to time, collectively, the "Loan Documents").
The Mortgagor, for good and valuable consideration, receipt of which is hereby
acknowledged, and intending to be legally bound hereby, does hereby give, grant, bargain, sell,
convey, assign, transfer, mortgage, hypothecate, pledge, set over and confirm unto the
Mortgagee and does agree that the Mortgagee shall have a security interest in the following
described property, all accessions and additions thereto, all substitutions therefor and
replacements and proceeds thereof, and all reversions and remainders of such property now
owned or held or hereafter acquired (the "Mortgaged Property"), to wit:
(a) All of the Mortgagor's right, title and interest in, to and under the premises
described in Exhibit A, together with all of the easements, rights of way, privileges, liberties,
hereditaments, gores, streets, alleys, passages, ways, waters, watercourses, rights and
appurtenances thereunto belonging or appertaining, and all of the Mortgagor's estate, right, title,
interest, claim and demand therein and in the public streets and ways adjacent thereto, either in
law or in equity (the "Land");
(b) All of the Mortgagor's right, title and interest in, to and under the buildings,
structures and improvements of every kind and description now or hereafter erected or placed
on the Land, and all facilities, fixtures, machinery, apparatus, appliances, installations,
machinery and equipment, including all goods and building materials to be incorporated into
such buildings or the Project, all electrical equipment necessary for the operation of such
buildings and heating, air conditioning and plumbing equipment now or hereafter attached to,
located in or used in connection with those buildings, structures or other improvements (the
"Improvements");
(c) All rents, issues and profits arising or issuing from the Land and the
Improvements (the "Rents") including the Rents arising or issuing from all leases and
subleases now or hereafter entered into covering all or any part of the Land and Improvements
(the "Leases"), all of which Leases and Rents are hereby assigned to the Mortgagee by the
Mortgagor. The foregoing assignment extends to Leases and Rents arising both before and
after the commencement by or against the Mortgagor of any case or proceeding under any
Federal or State bankruptcy, insolvency or similar law, and is intended as an absolute
assignment and not merely the granting of a security interest. The Mortgagor, however, shall
have a license to collect, retain and use the Rents so long as no Event of Default shall have
occurred and be continuing or shall exist. The Mortgagor will execute and deliver to the
Mortgagee, on demand, such additional assignments and instruments as the Mortgagee may
require to implement, confirm, maintain and continue the assignment of Leases and Rents
hereunder;
(d) All proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or liquidated claims; and
{A941933:1}
2
BK19 O./iG 5)
(e) Without limiting any of the other provisions of this Mortgage, the Mortgagor,
as debtor, expressly grants unto the Mortgagee, as secured party, a security interest in all
personal property of the Mortgagor used or intended to be used in connection with the
Mortgaged Property, including the following, all whether now owned or hereafter acquired or
arising and wherever located: (i) accounts; (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) letter of credit rights; (xiv) 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; (xv) all supporting obligations of all of the
foregoing property; (xvi) all property of the Mortgagor now or hereafter in the Mortgagee's
possession or in transit to or from, or under the custody or control of, the Mortgagee or any
affiliate thereof; (xvii) all cash and cash equivalents thereof; and (xviii) 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. The
Mortgagor authorizes Mortgagee to file such financing statements and other instruments as the
Mortgagee may require in order to perfect, protect and maintain such security interest under the
Pennsylvania Uniform Commercial Code ("UCC") on the aforesaid collateral (the "Collateral").
To have and to hold the same unto the Mortgagee, its successors and assigns, forever.
Provided, however, that if the Mortgagor shall pay to the Mortgagee the Obligations, and
if the Mortgagor shall keep and perform each of its other covenants, conditions and agreements
set forth herein and in the other Loan Documents, then, upon the termination of all obligations,
duties and commitments of the Mortgagor under the Obligations and this Mortgage, and subject
to the provisions of the paragraph entitled "Survival; Successors and Assigns", the estate
hereby granted and conveyed shall become null and void.
This Mortgage is an "Open-End Mortgage" as set forth in 42 Pa. C.S.A. § 8143 and
secures future advances and obligations up to a maximum principal amount of indebtedness
outstanding at any time equal to double the face amount of the Note plus accrued and unpaid
interest, including advances for the payment of taxes and municipal assessments, maintenance
charges, insurance premiums, costs incurred for the protection of the Property or the lien of this
Mortgage, expenses incurred by the Mortgagee by reason of default by the Mortgagor under
this Mortgage and advances for construction, alteration or renovation on the Mortgaged
Property or for any other purpose, together with all other sums due hereunder or secured
(A941933:1 }
3
y r :- . _ : r
B J
hereby. All notices to be given to the Mortgagee pursuant to 42 Pa. C.S.A. § 8143 shall be
given as set forth in Section 18.
1. Representations and Warranties. The Mortgagor represents and warrants to
the Mortgagee that the Mortgagor is the owner in fee of the Mortgaged Property and has good
and marketable title to the Land and the Improvements and has all right, title and interest in all
other property constituting a part of the Mortgaged Property, in each case free and clear of all
liens and encumbrances, except as may otherwise be set forth on Exhibit B hereto. This
Mortgage is a valid and enforceable first-priority lien on the Mortgaged Property (except as set
forth on Exhibit B) and the Mortgagee shall, subject to the Mortgagor's right of possession prior
to an Event of Default, quietly enjoy and possess the Mortgaged Property. The Mortgagor shall
preserve such title as it warrants herein and the validity and priority of the lien hereof and shall
forever warrant and defend the same to the Mortgagee against the claims of all persons.
2. Affirmative Covenants. Until all of the Obligations shall have been fully paid,
satisfied and discharged the Mortgagor shall:
2.1. Payment and Performance of Obligations. Pay or cause to be paid
and perform all Obligations when due as provided in the Loan Documents.
2.2. Legal Requirements. Promptly comply with and conform to all present
and future laws, statutes, codes, ordinances, orders and regulations and all covenants,
restrictions and conditions that may be applicable to the Mortgagor or to any of the Mortgaged
Property (the "Legal Requirements").
2.3. Impositions. Before interest or penalties are due thereon and otherwise
when due, the Mortgagor shall pay all taxes of every kind and nature, all charges for any
easement or agreement maintained for the benefit of any of the Mortgaged Property, all general
and special assessments (including any condominium or planned unit development
assessments, if any), levies, permits, inspection and license fees, all water and sewer rents and
charges, and all other charges and liens, whether of a like or different nature, imposed upon or
assessed against the Mortgagor or any of the Mortgaged Property (the "Impositions"). Within
thirty (30) days after the payment of any Imposition, the Mortgagor shall deliver to the
Mortgagee evidence acceptable to the Mortgagee of such payment. The Mortgagor's
obligations to pay the Impositions shall survive the Mortgagee's taking title to the Mortgaged
Property through foreclosure, deed-in-lieu or otherwise.
2.4. Maintenance of Security. Use, and permit others to use, the Mortgaged
Property only for its present use or such other uses as permitted by applicable Legal
Requirements and approved in writing by the Mortgagee, which approval shall not unreasonably
be withheld, delayed or conditioned. The Mortgagor shall keep the Mortgaged Property in good
condition and order 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
nonstructural, exterior and interior, foreseen and unforeseen, ordinary and extraordinary,
provided, however, that no structural repairs, renewals or replacements shall be made without
the Mortgagee's prior written consent, which consent shall not unreasonably be withheld,
delayed or conditioned. The Mortgagor shall not remove, demolish or alter the Mortgaged
Property nor commit or suffer waste with respect thereto, nor permit the Mortgaged Property to
become deserted or abandoned. The Mortgagor covenants and agrees not to take or permit
(A941933:1)
4
v!7 8
any action with respect to the Mortgaged Property that will in any manner impair the security of
this Mortgage.
3. Leases. The Mortgagor shall not (a) execute an assignment or pledge of the
Rents or the Leases other than in favor of the Mortgagee; (b) accept any prepayment of an
installment of any Rents prior to the due date of such installment; or (c) enter into or amend any
of the terms of any of the Leases without the Mortgagee's prior written consent, which consent
shall not unreasonably be withheld, delayed or conditioned. Any or all leases or subleases of all
or any part of the Mortgaged Property shall be subject in all respects to the Mortgagee's prior
written consent (which consent shall not unreasonably be withheld, delayed or conditioned),
shall be subordinated to this Mortgage and to the Mortgagee's rights and, together with any and
all rents, issues or profits relating thereto, shall be assigned at the time of execution to the
Mortgagee as additional collateral security for the Obligations, all in such form, substance and
detail as is satisfactory to the Mortgagee in its sole and reasonable discretion.
4. Due on Sale Clause. Without the Mortgagee's prior written consent or except as
permitted in the Loan Documents, the Mortgagor shall not sell, convey or otherwise transfer any
interest in the Mortgaged Property (whether voluntarily or by operation of law), or agree to do
so, including (a) any sale, conveyance, assignment, or other transfer of (including installment
land sale contracts), or the grant of a security interest in, all or any part of the legal or equitable
title to the Mortgaged Property, except as otherwise permitted hereunder; (b) any lease of all or
any portion of the Mortgaged Property; or (c) any sale, conveyance, assignment, or other
transfer of, or the grant of a security interest in any partnership interest in the Mortgagor except
in favor of the Mortgagee. Any default under this Section shall cause an immediate acceleration
of the Obligations without any demand by the Mortgagee.
5. Insurance. The Mortgagor shall keep all Improvements constructed on the
Mortgaged Property continuously insured, in an amount not less than the cost to replace the
Improvements or an amount not less than one hundred percent (100%) of the full insurable
value thereof, whichever is greater, against loss or damage by fire, lightning and all other risks
covered by the usual all-risk policy, with extended coverage against other hazards as the
Mortgagee may from time to time require. With respect to any property under construction or
reconstruction, the Mortgagor shall maintain builder's risk insurance. The Mortgagor shall also
maintain comprehensive general public liability insurance, in an amount of not less than One
Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) general
aggregate per location, which includes contractual liability insurance for the Mortgagor's
obligations under any Leases. All property and builder's risk insurance shall include protection
for continuation of income for a period of eighteen (18) months, in the event of any damage
caused by the perils referred to above. All policies, including policies for any amounts carried in
excess of the required minimum and policies not specifically required by the Mortgagee, shall be
with an insurance company or companies satisfactory to the Mortgagee, shall be in form
satisfactory to the Mortgagee, shall meet all coinsurance requirements of the Mortgagee, shall
be maintained in full force and effect, shall be assigned to the Mortgagee, with premiums
prepaid, as collateral security for payment of the Obligations, shall be endorsed with a standard
mortgagee clause in favor of the Mortgagee and shall provide for at least thirty (30) days notice
of cancellation to the Mortgagee. Such insurance shall also name the Mortgagee as an
additional insured under the comprehensive general public liability policy and the Mortgagor
shall also deliver to the Mortgagee a copy of the replacement cost coverage endorsement. If
any Improvements on the Mortgaged Property are located in an area which has been identified
by any governmental agency, authority or body as a flood hazard area or the like, then the
{A941933:1)
5
.??
19 S
Mortgagor shall maintain a flood insurance policy covering the Mortgaged Property in an
amount not less than the original principal amount of the Loan or the maximum limit of coverage
available under the federal program, whichever amount is less.
6. Rights of Mortgagee to Insurance Proceeds. In the event of loss, the
Mortgagee shall have the exclusive right to adjust, collect and compromise all insurance claims,
and the Mortgagor shall not adjust, collector compromise any claims under said policies without
the Mortgagee's prior written consent. Each insurer is hereby authorized and directed to make
payment under said policies, including return of unearned premiums, directly to the Mortgagee
instead of to the Mortgagor and the Mortgagee jointly, and the Mortgagor appoints the
Mortgagee as the Mortgagor's attorney-in-fact to endorse any draft therefor. All insurance
proceeds may, at the Mortgagee's sole option, be applied to all or any part of the Obligations
and in any order (notwithstanding that such Obligations may not then otherwise be due and
payable) or to the repair and restoration of any of the Mortgaged Property under such terms and
conditions as the Mortgagee may impose.
7. Installments for Insurance, Taxes and Other Charges. Upon the Mortgagee's
request following an Event of Default under the Agreement, the Mortgagor shall pay to the
Mortgagee monthly, an amount equal to one-twelfth (1/12) of the annual premiums for the
insurance policies referred to hereinabove and the annual Impositions and any other item which
at any time may be or become a lien upon the Mortgaged Property (the "Escrow Charges").
The amounts so paid shall be used in payment of the Escrow Charges. No amount so paid to
the Mortgagee shall be deemed to be trust funds, nor shall any sums paid bear interest. The
Mortgagee shall have no obligation to pay any insurance premium or Imposition if at any time
the funds being held by the Mortgagee for such premium or Imposition are insufficient to make
such payments. If, at any time, the funds being held by the Mortgagee for any insurance
premium or Imposition are exhausted, or if the Mortgagee determines, in its sole discretion, that
such funds will be insufficient to pay in full any insurance premium or Imposition when due, the
Mortgagor shall promptly pay to the Mortgagee, upon demand, an amount which the Mortgagee
shall estimate as sufficient to make up the deficiency.
8. Condemnation. The Mortgagor, immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation or taking by eminent domain of any of the
Mortgaged Property, shall notify the Mortgagee of the pendency of such proceedings. The
Mortgagee may participate in any such proceedings and the Mortgagor shall deliver to the
Mortgagee all instruments requested by it to permit such participation. Any award or
compensation for property taken or for damage to property not taken, whether as a result of
such proceedings or in lieu thereof, is hereby assigned to and shall be received and collected
directly by the Mortgagee, and any award or compensation shall be applied, at the Mortgagee's
option, to any part of the Obligations and in any order (notwithstanding that any of such
Obligations may not then be due and payable) or to the repair and restoration of any of the
Mortgaged Property under such terms and conditions as the Mortgagee may impose.
9. Environmental Matters.
9.1. For purposes of this Section 9, 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 which are known or considered to be harmful to the health or safety of
{A941933:1)
6
;` 0
persons, or the presence of which may require investigation, notification or remediation under
the Environmental Laws. The term "Contamination" shall mean the discharge, release,
emission, disposal or escape of any Regulated Substances into the environment.
9.2. The Mortgagor represents and warrants (i) that, to Mortgagor's best
knowledge, 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 of Mortgagor on the Property have been and are being conducted in accordance
with all Environmental Laws, and the Mortgagor has all permits and licenses required under the
Environmental Laws; (iii) to Mortgagor's best knowledge, 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, to Mortgagor's best knowledge, has been threatened
relating to any environmental condition, operation or activity on the Mortgaged Property, 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 that must remain true, correct and accurate during the entire duration of the term of
this Mortgage.
9.3. The 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. The Mortgagor shall notify the Mortgagee
promptly and in reasonable detail in the event that the 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. The 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 the Mortgagor's business, but 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. The
Mortgagor agrees not to cause, allow or permit the presence of any Contamination on the
Mortgaged Property.
9.4. The Mortgagee shall not be liable for, and the Mortgagor shall indemnify,
defend and hold the 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 the Mortgagee may suffer or incur
(including as holder of the Mortgage, as mortgagee in possession or as successor in interest to
the 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 the Mortgagor in this Section 9; (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, except,
{A941933:1)
7
BK19?.7 ? ??01
in each case, to the extent arising solely from Mortgagee's gross negligence or willful
misconduct.
9.5. At closing of the Loan, Mortgagor shall execute and deliver an
Environmental Indemnification Agreement satisfactory in form and substance to the Mortgagee,
to more fully reflect the Mortgagor's representations, warranties, covenants and indemnities with
respect to the Environmental Laws.
10. Inspection of Mortgaged Property. The Mortgagee shall have the right to enter
the Mortgaged Property at any reasonable hour for the purpose of inspecting the order,
condition and repair of the buildings and improvements erected thereon, as well as the conduct
of operations and activities on the Mortgaged Property upon such prior notice, if any, as is
reasonable under the circumstances. The Mortgagee may enter the Mortgaged Property (and
cause the Mortgagee's employees, agents and consultants to enter the Mortgaged Property),
upon prior written notice to the Mortgagor, to conduct any and all environmental testing deemed
appropriate by the Mortgagee in its sole discretion. The environmental testing shall be
accomplished by whatever means the Mortgagee may deem appropriate, including the taking of
soil samples and the installation of ground water monitoring wells or other intrusive
environmental tests. The Mortgagor shall provide the Mortgagee (and the Mortgagee's
employees, agents and consultants) reasonable rights of access to the Mortgaged Property as
well as such information about the Mortgaged Property and the past or present conduct of
operations and activities thereon as the Mortgagee shall reasonably request.
11. Events of Default. The occurrence of any one or more of the following events
shall constitute 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 the Mortgagee under any of the Obligations that have a
demand feature; (d) the failure by the Mortgagor to perform any of its other obligations under
this Mortgage or under any Environmental Indemnification Agreement executed and delivered
pursuant to Section 9.5 within thirty (30) days after the earlier of written notice from the
Mortgagee to the Mortgagor or the Mortgagor has knowledge that such failure has occurred; (e)
falsity, inaccuracy or material breach by the Mortgagor of any written warranty, representation or
statement made or furnished to the Mortgagee by or on behalf of the Mortgagor; (f) an
uninsured material loss, theft, damage, or destruction to any of the Mortgaged Property, or the
entry of a final judgment against Mortgagor in excess of $25,000 and the failure of Mortgagor to
discharge the judgment or otherwise bond off any judgment lien resulting therefrom within thirty
(30) days of the entry thereof, or any lien against or the making of any levy, seizure or
attachment of or on the Mortgaged Property; (g) the failure of the Mortgagee to have a
mortgage lien on the Mortgaged Property with the priority required under Section 1; (h) any
indication or evidence received by the Mortgagee that the Mortgagor may have directly or
indirectly been engaged in any violation of law which, in the Mortgagee's reasonable discretion,
might result in the forfeiture of any property of the Mortgagor to any governmental entity,
federal, state or local; (i) foreclosure 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;
(j) the failure by the Mortgagor to pay any Impositions as required under Section 2.3., or to
maintain in full force and effect any insurance required under Section 5; or (k) the Mortgagor or
any other obligor or guarantor of any of the Obligations, shall at any time deliver or cause to be
delivered to the Mortgagee a notice pursuant to 42 Pa. C.S.A. § 8143 electing to limit the
indebtedness secured by this Mortgage.
{A941933:1)
8
12. Rights and Remedies of Mortgagee. If an Event of Default occurs, the
Mortgagee may, at its option and without demand, notice or delay, do one or more of the
following:
12.1. The Mortgagee may declare the entire unpaid principal balance of the
Obligations, together with all interest thereon, to be due and payable immediately.
12.2. The Mortgagee may (i) institute and maintain an action of mortgage
foreclosure against the Mortgaged Property and the interests of the Mortgagor therein,
(ii) institute and maintain an action on any instruments evidencing the Obligations or any portion
thereof, and (iii) take such other action at law or in equity for the enforcement of any of the Loan
Documents as the law may allow, and in each such action the Mortgagee shall be entitled to all
costs of suit and attorney's fees.
12.3. The Mortgagee may, in its sole and absolute discretion: (i) collect any or
all of the Rents, including any Rents past due and unpaid, (ii) perform any obligation or exercise
any right or remedy of the Mortgagor under any Lease, or (iii) enforce any obligation of any
tenant of any of the Mortgaged Property. The Mortgagee may exercise any right under this
subsection (c), whether or not the Mortgagee shall have entered into possession of any of the
Mortgaged Property, and nothing herein contained shall be construed as constituting the
Mortgagee a "mortgagee in possession", unless the Mortgagee shall have entered into and shall
continue to be in actual possession of the Mortgaged Property. The Mortgagor hereby
authorizes and directs each and every present and future tenant of any of the Mortgaged
Property to pay all Rents directly to the Mortgagee and to perform all other obligations of that
tenant for the direct benefit of the Mortgagee, as if the Mortgagee were the landlord under the
Lease with that tenant, immediately upon receipt of a demand by the Mortgagee to make such
payment or perform such obligations. The 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 the Mortgagee, and any such payment or performance to the
Mortgagee shall discharge the obligations of the tenant to make such payment or performance
to the Mortgagor.
12.4. The Mortgagee shall have the right, in connection with the exercise of its
remedies hereunder, to the appointment of a receiver to take possession and control of the
Mortgaged Property or to collect the Rents, without notice and without regard to the adequacy of
the Mortgaged Property to secure the Obligations. 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 the Mortgagee may advance moneys to a receiver for such
purposes. Any moneys so expended or advanced by the Mortgagee or by a receiver shall be
added to and become a part of the Obligations secured by this Mortgage.
13. Application of Proceeds. The Mortgagee shall apply the proceeds of any
foreclosure sale of, or other disposition or realization upon, or Rents or profits from, the
Mortgaged Property to satisfy the Obligations in such order of application as the Mortgagee
shall determine in its exclusive discretion.
14. Confession of Judgment in Eiectment. At any time after the occurrence of an
Event of Default, without further notice, regardless of whether the Mortgagee has asserted any
{A941933:1)
9
other right or exercised any other remedy under this Mortgage or any of the other Loan
Documents, it shall be lawful for any attorney of any court of record as attorney for the
Mortgagor to confess judgment in ejectment against the Mortgagor and all persons claiming
under the Mortgagor for the recovery by the Mortgagee of possession of all or any part of the
Mortgaged Property, for which this Mortgage shall be sufficient warrant. If for any reason after
such action shall have commenced the same shall be discontinued and the possession of the
Mortgaged Property shall remain in or be restored to the Mortgagor, the Mortgagee shall have
the right upon any subsequent default or defaults to bring one or more amicable action or
actions as hereinbefore set forth to recover possession of all or any part of the Mortgaged
Property.
15. Mortgagee's Right to Protect Security. The Mortgagee is hereby authorized to
do any one or more of the following, irrespective of whether an Event of Default has occurred:
(a) appear in and defend any action or proceeding purporting to affect the security hereof or the
Mortgagee's rights or powers hereunder; (b) purchase such insurance policies covering the
Mortgaged Property as it may elect if the Mortgagor fails to maintain the insurance coverage
required hereunder; and (c) take such action as the Mortgagee may determine to pay, perform
or comply with any Impositions or Legal Requirements, to cure any Events of Default and to
protect its security in the Mortgaged Property.
16. Appointment of Mortgagee as Attorney-in-Fact. The Mortgagee, or any of its
officers, is hereby irrevocably appointed attorney-in-fact for the Mortgagor (without requiring any
of them to act as such), such appointment being coupled with an interest, to do any or all of the
following: (a) collect the Rents after the occurrence of an Event of Default; (b) settle for, collect
and receive any awards payable under Section 8 from the authorities making the same; and
(c) execute, deliver and file such financing statements, continuation statements and other
instruments as the Mortgagee may require in order to perfect, continue and maintain its security
interest under the UCC on any of the Mortgaged Property or Collateral.
17. Certain Waivers. The Mortgagor hereby waives and releases all benefit that
might accrue to the 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 or any rights of marshaling in the event of any sale hereunder of
the Property, and, unless specifically required herein, all notices of the Mortgagor's default or of
the Mortgagee's election to exercise, or the Mortgagee's actual exercise of any option under this
Mortgage or any other Loan Document.
18. Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing and will be effective upon
receipt to the Mortgagor or the Mortgagee. Such notices and other communications may be
hand-delivered, sent by facsimile transmission with confirmation of delivery and a copy sent by
first-class mail, or sent by nationally recognized overnight courier service, to a party's address
set forth above or to such other address as the Mortgagor or the Mortgagee may give to the
other in writing for such purpose.
19. Further Acts. The Mortgagor will, at the cost of the Mortgagor, and without
expense to the Mortgagee, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances, mortgages, assignments, notices of assignment, transfers and
assurances as the Mortgagee shall, from time to time, require for the better assuring, conveying,
{A941933:1}
10
BK 19 2' 1" !4
assigning, transferring or confirming unto the Mortgagee the property and rights hereby
mortgaged, or which Mortgagor may be or may hereafter become bound to convey or assign to
the Mortgagee, or for carrying out the intent of or facilitating the performance of the terms of this
Mortgage or for filing, registering or recording this Mortgage. The Mortgagor grants to the
Mortgagee an irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to the Mortgagee under the
Note, this Mortgage, the other Loan Documents, at law or in equity, including without limitation
the rights and remedies described in this paragraph.
20. Changes in the Laws Regarding Taxation. If any law is enacted or adopted or
amended after the date of this Mortgage which deducts the Obligations from the value of the
Mortgaged Property for the purpose of taxation or which imposes a tax, either directly or
indirectly, on the Mortgagor or the Mortgagee's interest in the Mortgaged Property, the
Mortgagor will pay such tax, with interest and penalties thereon, if any. If the Mortgagee
determines that the payment of such tax or interest and penalties by the Mortgagor would be
unlawful or taxable to the Mortgagee or unenforceable or provide the basis for a defense of
usury, then the Mortgagee shall have the option, by written notice of not less than ninety (90)
days, to declare the entire Obligations immediately due and payable.
21. Documentary Stamps. If at any time the United States of America, any State
thereof or any subdivision of any such State shall require revenue or other stamps to be affixed
to the Note or this Mortgage, or impose any other tax or charge on the same, the Mortgagor will
pay for the same, with interest and penalties thereon, if any.
22. Preservation of Rights. No delay or omission on the Mortgagee's part to
exercise any right or power arising hereunder will impair any such right or power or be
considered a waiver of any such right or power, nor will the Mortgagee's action or inaction
impair any such right or power. The Mortgagee's rights and remedies hereunder are cumulative
and not exclusive of any other rights or remedies that the Mortgagee may have under other
agreements, at law or in equity. The Mortgagee may exercise any one or more of its rights and
remedies without regard to the adequacy of its security.
23. Illegality. In case any one or more of the provisions contained in this Mortgage
should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions contained herein shall not in any way be affected or impaired
thereby.
24. Changes in Writing. No modification, amendment or waiver of any provision of
this Mortgage nor consent to any departure by the Mortgagor therefrom will be effective unless
made in a writing signed by the Mortgagee and Mortgagor, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which given. No notice to
or demand on the Mortgagor in any case will entitle the Mortgagor to any other or further notice
or demand in the same, similar or other circumstance.
25. Entire Agreement. This Mortgage (including the documents and instruments
referred to herein) constitutes the entire agreement and supersedes all other prior agreements
and understandings, both written and oral, between the Mortgagor and the Mortgagee with
respect to the subject matter hereof.
{A941933:1 }
11
i\ I 1 3
26. Survival, Successors and Assigns. This Mortgage will be binding upon and
inure to the benefit of the Mortgagor and the Mortgagee and their respective heirs, executors,
administrators, successors and assigns; provided, however, that the Mortgagor may not assign
this Mortgage in whole or in part without the Mortgagee's prior written consent and the
Mortgagee at any time may assign this Mortgage in whole or in part; and provided, further, that
the rights and benefits under the Paragraphs entitled "Environmental Matters", "Inspection of
Mortgaged Property" and "Indemnity" shall also inure to the benefit of any persons or entities
who acquire title or ownership of the Mortgaged Property from or through the Mortgagee or
through action of the Mortgagee (including a foreclosure, sheriff's or judicial sale). The
provisions of Paragraphs entitled "Environmental Matters", "Inspection of Mortgaged Property"
and "Indemnity" shall survive the termination, satisfaction or release of this Mortgage, the
foreclosure of this Mortgage or the delivery of a deed in lieu of foreclosure.
27. Interpretation. In this Mortgage, the singular includes the plural and the plural
the singular; references to statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; the word "or" shall be deemed to
include "and/or", the words "including", "includes" and "include" shall be deemed to be followed
by the words "without limitation" and references to sections or exhibits are to those of this
Mortgage unless otherwise indicated. Section headings in this Mortgage are included for
convenience of reference only and shall not constitute a part of this Mortgage for any other
purpose. If this Mortgage is executed by more than one party as Mortgagor, the obligations of
such persons or entities will be joint and several.
28. Indemnity. The Mortgagor agrees to indemnify each of the Mortgagee, its
directors, officers and employees and each legal entity, if any, who controls the Mortgagee (the
"Indemnified Parties") and to hold each Indemnified Party harmless from and against any and
all claims, damages, losses, liabilities and expenses (including all fees and charges of internal
or external counsel with whom any Indemnified Party may consult and all expenses of litigation
or preparation therefor) which any Indemnified Party may incur or which may be asserted
against any Indemnified Party in connection with or arising out of the matters referred to in this
Mortgage or in the other Loan Documents by any person, entity or governmental authority
(including any person or entity claiming derivatively on behalf of the Mortgagor), whether (a)
arising from or incurred in connection with any breach of a representation, warranty or covenant
by the Mortgagor, or (b) arising out of or resulting from any suit, action, claim, proceeding or
governmental investigation, pending or threatened, whether based on statute, regulation or
order, or tort, or contract or otherwise, before any court or governmental authority, which arises
out of or relates to this Mortgage, any other Loan Document, or the use of the proceeds of the
Loan; provided, however, that the foregoing indemnity agreement shall not apply to claims,
damages, losses, liabilities and expenses solely attributable to an Indemnified Party's gross
negligence or willful misconduct. The indemnity agreement contained in this Section shall
survive the termination of this Mortgage, payment of any Loan and assignment of any rights
hereunder. The Mortgagor may participate at its expense in the defense of any such action or
claim.
29. Governing Law and Jurisdiction. This Mortgage has been delivered to and
accepted by the Mortgagee and will be deemed to be made in the Commonwealth of
Pennsylvania. THIS MORTGAGE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
MORTGAGOR AND THE MORTGAGEE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ITS CONFLICT OF LAWS RULES. The Mortgagor
hereby irrevocably consents to the exclusive jurisdiction of the Court of Common Pleas of
(A941933:1)
12
Cumberland County, Pennsylvania; provided that nothing contained in this Mortgage will
prevent the Mortgagee from bringing any action, enforcing any award or judgment or exercising
any rights against the Mortgagor individually, against any security or against any property of the
Mortgagor within any other county, state or other foreign or domestic jurisdiction. The
Mortgagor acknowledges and agrees that the venue provided above is the most convenient
forum for both the Mortgagee and the Mortgagor. The Mortgagor waives any objection to venue
and any objection based on a more convenient forum in any action instituted under this
Mortgage.
30. WAIVER OF JURY TRIAL. THE MORTGAGOR IRREVOCABLY WAIVES ANY
AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS MORTGAGE, ANY DOCUMENTS
EXECUTED IN CONNECTION WITH THIS MORTGAGE OR ANY TRANSACTION
CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE MORTGAGOR ACKNOWLEDGES
THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
31. Rights and Remedies of Mortgagee as Secured Party.
31.1. In addition to any other remedies granted in this Mortgage, Mortgagee
may, upon the occurrence of an Event of Default proceed under the UCC as to all or any part of
the Collateral and will have and may exercise, with respect to the Collateral, all rights, remedies
and powers of a secured party under the UCC, including, without limitation, the right and power
to sell at public or private sale or sales, or otherwise dispose of, lease or utilize the Collateral or
any parts thereof in any manner authorized or permitted under the UCC after default by a
debtor, and to apply the proceeds thereof in payment of any reasonable costs and expenses
and reasonable attorney's fees and legal expenses thereby incurred by Mortgagee, and to the
payment of indebtedness secured by this Mortgage in such order and manner as Mortgagee
may elect.
31.2. Among the rights Mortgagee shall have in the event of such default, and
without limitation of the foregoing, Mortgagee may take possession of the Collateral and enter
upon any premises where the same may be situated for such purpose without being guilty of
trespassing, and to take any action deemed necessary or appropriate or desirable by
Mortgagee, at its option, to repair, refurbish or otherwise prepare the Collateral for sale, lease or
other use or disposition as herein authorized.
31.3. To the extent permitted by law, Mortgagor expressly waives any notice of
sale or other disposition of the Collateral and any other rights or remedies of a debtor or
formalities prescribed by law relative to a sale or disposition of the Collateral or exercise of any
other right or remedy of Mortgagee existing after default of Mortgagor hereunder; and to the
extent any such notice is required and cannot be waived, Mortgagee agrees that if such notice
is mailed, postage prepaid, to Mortgagor at its address provided herein at least ten (10) days
before the time of sale or disposition, such notice shall be deemed reasonable and shall fully
satisfy any statutory or other requirement for the giving of such notice. Upon the occurrence of
an Event of Default, Mortgagee shall have the right, at its option, to transfer at any time to itself
or its nominee the Collateral or any part thereof, and to receive the moneys, income, proceeds
or benefits attributable or accruing thereto and to hold the same as security for the indebtedness
or to apply it to the principal, interest and other amounts owing on any of the indebtedness, in
such order and manner as Mortgagee may elect. All rights to marshaling of assets of
Mortgagor, including any such right with respect to the Collateral, are hereby waived.
(A941933:1 )
13
%F 7
BK 19
31.4. Mortgagee may require Mortgagor to assemble the Collateral and make it
available to Mortgagee at a place to be designated by Mortgagee that is reasonably convenient
to both parties. All reasonable expenses of retaking, holding, preparing for sale, lease or other
use, of disposition, settling, leasing or otherwise using or disposing of the Collateral and the like
which are incurred or paid by Mortgagee as authorized or permitted hereunder, including all
reasonable attorneys' fees, legal expenses and costs, shall be added to the indebtedness
secured by this Mortgage and Mortgagor shall be liable therefore.
32. Construction Mortpaae. Mortgagor and Mortgagee intend that this Mortgage
shall be a construction mortgage within the meaning of the UCC, 13 Pa.C.S.A §9334.
33. Construction Loan Agreement: Future Advances. This Mortgage is
subject in all respects to the terms and provisions of the Agreement, as now in force and as
hereafter amended, supplemented or modified, which Agreement is incorporated herein by
reference. All advances and indebtedness arising and accruing from tie to time under the
Agreement shall be secured by this Mortgage to the same extent as though the Agreement
were fully incorporated in this Mortgage. Under the Agreement, advances of proceeds of the
Note shall be made from time to time after the date of this Mortgage, but each such advance
shall be secured by this Mortgage as if made on the date of this Mortgage.
34. Release Upon Sale of Lots. Provided that no Event of Default
hereunder, under the Note, the Agreement, or any other Loan Document or any event which
with the giving of notice, passage of time or both would constitute an Event of Default hereunder
or thereunder has occurred, Mortgagor shall have the right and option to obtain from Mortgagee
from time to time hereafter a release of any one or more of the lots (each a "Lot") from the lien
of this Mortgage upon Mortgagee's receipt of such payments as are required by the terms of the
Note.
All such payments shall be applied to principal due on the Note. The Mortgagor's receipt of such
sum or sums from time to time hereunder shall not relieve or excuse the Mortgagor from making
in timely manner payments of interest or principal as provided in the Note. The Mortgagor shall
reimburse the Mortgagee for all actual costs and expenses incurred in connection with the
release of any Lot from the lien of this Mortgage. Any Release filed in the Office of the
Recorder of Deeds of Cumberland County for the purpose of releasing any Lot from the lien of
this Mortgage also shall constitute a release of such Lot and any personal property thereon or
therein from the security interest created hereunder in favor of Mortgagee under the provisions
of the UCC without the necessity of recording or filing any other UCC-3 release or document in
any other filing office.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
JA941933:1 }
14
C' %°w8
8K 19
Mortgagor acknowledges that Mortgagor has read and understood all the
provisions of this Mortgage, including the waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
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:
L?
MORTGAGOR:
(SEAL)
CONSTANTINOS J. M LIOS
(SEAL)
ELAINE MALLI S
{A941933:1}
15
P,-9
'ryg4 ? S_..:
J / ?1 o J
CERTIFICATE OF ADDRESS
The undersigned certifies that the address of the Mortgagee is:
INTEGRITY BANK
3345 Market Street
Camp Hill, Pennsylvania 17011
On behalf of the Mortgagee
{A941933:1}
16
81?: 70
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS:
On this, the 161h day of May, 2007, before me, a Notary Public, the undersigned officer,
personally appeared Constantinos J. Mallios and Elaine Mallios, known to me (or satisfactorily
proven) to be the individuals who executed the foregoing instrument, and duly acknowledged to
me that they executed the same for the purposes therein.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
? C cn?`?uv1
Kota u
(SEAL)
My commission expires: 464-- 30, --Zlo
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Tiffany S. MdGnnon, Notary Public
Camp Hill Boro, Cumberland County
My Commission Expires Aug. 30, 2010
Member, Pennsylvania Association of Notaries
(A941933:1)
17
EXHIBITS
A. Legal Description
Permitted Encumbrances
{A941933:1 }
18
8K I J rc t
EXHIBIT A
Legal Description
BEGINNING at a point on the western right-of-way line of Walnut Street at the line of lands now or
late of Thomas E. and Doris B. Kendall; thence from said point of BEGINNING by said land, North
eighty-nine degrees, zero minutes, thirty-four seconds West (N 89° 00'34" M, a distance of two
hundred-two and thirty-six hundredths feet (202.36) to a point; thence by Phase VIII, North five
degrees, forty-eight minutes, twenty-six seconds West (N 05° 48' 26" W), a distance of six and
twelve hundredths feet (6.12) to a point; thence continuing by Phase VIII, North eighty-nine degrees,
zero minutes, five seconds West (N 89° 00' 05" W), a distance of two hundred thirty-seven and
forty-four hundredths feet (237.447 to a point; thence continuing by Phase VIII, by a curve to the left,
having a radius of one thousand nine hundred seventy five feet (R=1975.00), an arc length of one
hundred sixty-one and sixteen hundredths feet (A/L=161.16) to a point; thence continuing by Phase
VIII, South three degrees, twenty-eight minutes, thirty-four seconds East (S 03° 28' 34" E), a
distance of six hundred thirty-two and thirty-one hundredths feet (632.31) to a point; thence by lands
now or late of Wesley United Methodist Church and by lands of Mt. Holly Springs Borough, South
seventy-four degrees, twenty minutes, zero seconds West (S 74° 20' 00" M, a distance of one
thousand two hundred nineteen and thirty hundredths feet (1219.307 to a point; thence by Phase II
of Westgate Lot No. 169 and crossing Parkway Drive, North fifteen degrees, forty minutes, zero
seconds West (N 15° 40'00" VII), a distance of one hundred ninety feet (190.007 to a point; thence
by the northern right-of-way line of Parkway Drive, South seventy-four degrees, twenty minutes, zero
seconds West (74° 20'00" VV), a distance of twenty-five and forty-one hundredths feet (25.41) to a
point; thence by Lot No. 98 of Phase II of Westgate, North fifteen degrees, forty minutes, zero
seconds West, (N 15° 40'00" M, a distance of one hundred twenty feet (120.00) to a point; thence
continuing by Lot No. 98 of Phase II of Westgate, South seventy-four degrees, twenty minutes, zero
seconds West (S 74° 20'00" M, a distance of forty feet (40.00) to a point; thence by an existing
detention basin area of Phase II of Westgate, North sixteen degrees, forty minutes, zero seconds
West (N 16° 40' 00" VV), a distance of three hundred thirty-three and ninety-three hundredths feet
(333.937 to a point; thence continuing by the same, North eighty-two degrees, twenty-five minutes,
zero seconds West (N 82° 25' 00" 149, a distance of seventy-three and twelve hundredths feet
(73.127 to a point; thence by Lot No. 88 Phase II of Westgate and crossing Westgate Drive, North
fifteen degrees, eighteen minutes, fifty-five seconds East (N 15° 18' 55" E), a distance of one
hundred seventy-seven and seventy-two hundredths feet (177.727 to a point; thence by Open Space
Detention Basin of Phase II of Westgate and the northern right-of-way line of Westgate Drive, by a
curve to the left, having radius of one hundred seventy-five feet (R=175.007, an arc length of sixty-
eight and eighty-nine hundredths feet (A/L=68.897 to a point; thence continuing along the same,
North eighty-two degrees, forty-five minutes, thirty-two seconds East (N 82° 45'32" E), a distance
of fifty-two and seventeen hundredths feet (52.177 to a point; thence continuing along the same, by
a curve to the left, having a radius of twenty-five feet (R=25.00), an arc length of thirty-eight and
sixteen hundredths feet (A/L=38.16) to a point on the western right-of-way line of White Oak Circle;
thence by said right-of-way line the following two (2)courses: (1) North four degrees, forty-two
minutes, nineteen seconds West (N 04° 42' 19" 149, a distance of fifty-two and seventeen
hundredths feet (52.177 to a point; (2) thence by a curve to the right, having a radius of two hundred
twenty-five feet (R=225.007, an arc length of one hundred eighty-five and twenty-one hundredths
feet (A/L=185.217 to a point; thence continuing by the Open Space Detention Basin by Lot No. 32,
Phase II of Westgate, North forty-seven degrees, thirty-two minutes, twenty-eight seconds West (N
47° 32'28" 11I1), a distance of one hundred sixty-seven and thirty-five hundredths feet (167.357 to a
point; thence still by Open Space Detention Basin and by Lots 132 and 133, North forty-six degrees,
twenty-five minutes, nine seconds East (N 46° 25'09" E), a distance of one hundred fifty-one and
eighty-eight hundredths feet (151.887 to a point on the southern right-of-way line of lands now or late
of Consolidated Rail Corporation (Conrail); thence along Conrail the following seven (7) courses (1)
(A941933:1)
s?
South eighty-one degrees, forty-five minutes, forty-five seconds East (S 81° 45'45" E), a distance
of seven hundred ten and four hundredths feet (710.049 to a point, (2) South sixty-two degrees,
thirty-three minutes, zero seconds East (S 62° 33'00" E), a distance of eighty-one and seventy-six
hundredths feet (81.767 to a point, (3) North seventy-four degrees, forty-two minutes, ten seconds
East (N 74° 42' 10" E), a distance of ninety-five feet (95.009 to a point, (4) South eighty-seven
degrees, three minutes, fifty-one seconds East (S 87° 03'51" E), a distance of three hundred sixty-
four and forty-two hundredths feet (364.429 to a point, (5) South eighty-nine degrees, fifty minutes,
twenty-one seconds East (S 89° 50' 21" E), a distance of forty-eight and fifty-six hundredths feet
(48.56) to a point, (6) South eighty-nine degrees, seven minutes, thirty seconds East (S 89° 07'30"
E), a distance of two hundred twenty and four hundredths feet (220.049 to a point, (7) North eighty-
eight degrees, forty-eight minutes, forty-eight seconds East (N 88° 48' 48" E), a distance of one
hundred twenty-four and seventy-two hundredths feet (124.727 to a point; thence by lands now or
late of Mary E. Fisher, South zero degrees, zero minutes, fifteen seconds East (S 00° 00'15" E), a
distance of one hundred thirteen and twenty-one hundredths feet (113.217 to a point; thence by
lands of Mary E. Fisher and the northern right-of-way line of Westgate Drive (Lauman Avenue
Extended), South eighty-nine degrees, zero minutes, five seconds East (S 89° 00' 05" E), a
distance of one hundred ninety-two and ninety-seven hundredths feet (192.97) to a point on the
western right-of-way line of Walnut Street; thence by the western right-of-way line of Walnut Street,
South five degrees, forty-eight minutes, twenty-eight seconds East (S 05° 48'28" E), a distance of
fifty-six and forty-five hundredths feet (56.457 to a point, the place of BEGINNING. Said tract
contains 1413708.85 sq ft or 32.4543 acres.
BEGINNING at a point on the southern right-of-way line of Westgate Drive (Lauman Avenue
Extended) at the line of other lands now or late of Kollas and Costopoulos; thence from said point of
BEGINNING by lands now or late of Kollas and Costopoulos, lands now or late of Thomas E. and
Doris B. Kendall, lands now or late of Stanley J. and Kathryn Zygmunt, lands now or late of Dennis
A. and Debra K. Gardner, lands now or late of Raymond S. and Helen Gritt, lands now or late of
Cyrus H. and Beverly J. Russel, lands now or late Andrew M. and Holly L. Shughart, lands now or
late of Terry L. March, lands now or late of Timothy R. Swartz, lands now or late of William E.
Lehman, and lands now or late Dorothy N. Sheaffer, South five degrees, forty-eight minutes, twenty-
six seconds East (S 05° 48' 26" E), a distance of seven hundred seventy-two and twenty-seven
hundredths feet (772.27) to a point; thence by lands now or late of Ross J. Yingst, South eighty-four
degrees, zero minutes, zero seconds West (S 84° 00'00" M, a distance of one hundred sixty and
eight hundredths feet (160.087 to a point; thence by lands now or late of Sylvavia Shoe
Manufacturing Corporation, North thirty degrees, forty-three minutes, zero seconds West (N 30° 43'
00" M, a distance of two hundred thirty-six and five hundredths feet (236.05) to a point; thence
continuing by the last mentioned, South seventy-two degrees, fifty-six minutes, zero seconds West
(S 72° 56' 00" 149, a distance of one hundred sixty-five and eighty hundredths feet (165.80) to a
point; thence by a line of Phase No. VI of Westgate, Lots No. 156, 155, 154, 153, 152 and 151
respectively, North three degrees, twenty-eight minutes, thirty-four seconds West (N 03° 28'34" IN),
a distance of six hundred thirty-two and thirty-one hundredths feet (632.317 to a point on the
southern right-of-way line of Westgate Drive; thence by a curve to the right, having a radius of one
thousand nine hundred seventy-five feet (R=1975.00), an arc length of one hundred sixty-one and
sixteen hundredths feet (A/L=161.16) to a point; thence continuing by the same, South eighty-nine
degrees, zero minutes, five seconds East (S 89° 00'05" E), a distance of two hundred thirty-seven
and forty-four hundredths feet (237.44) to a point, the place of BEGINNING. Said tract contains
285287.48 sq ft or 6.5493 acres.
(A941933:1)
20
7
'
O Ott -?
EXHIBIT B
Permitted Encumbrances
1. Subject to Declaration and Restrictions in Misc. Book 703, Page 3639.
2. Building setback lines, easements and all other conditions in Plan Book 70, Page 101 in
Plan of Westgate.
3. Subject to all conditions in Plan Book 34, Page 95.
4. Subject to rights of the Reading and Conrail Railroads to elevate and depress their
tracks.
5. Subject to rights granted to Metropolitan Edison Company as set forth in Record Book
81, Page 490; 89-117 and 81-489.
6. Subject to rights granted to Raystay Co. d/b/a TV Cable Co. of Carlisle in Misc. Book
530, Page 91, 486 and 678.
7. Subject to rights granted to United Telephone Co. of PA in Misc. Book 597, Page 448.
8. Subject to rights granted to Metropolitan Edison Company as set forth in Record Book
72, Page 8; 88-581; 180-475 and 81-489.
9. Subject to public and private rights in and to that portion of the premises lying in the bed
of the public road.
F (( e d County e
i
orDeeds
{A941933:11
'
Ex ?' b' f t°'
J-?? ?1 r
After Recording Return To:
Smigel, Anderson & Sacks, LLP
4431 North Front Street
Harrisburg, PA 17110
Parcel Id#: 40-12-0340-124; 40-12-0340-123; 40-12-0340-122;
40-12-0340-120; 40-12-0340-119; 40-12-0340-118;
40-12-0340-116; 40-12-0340-115; 40-12-0340-114;
40-12-0340-112; 40-12-0340-111; 40-12-0340-110;
40-12-0340-108; 40-12-0340-093; 40-12-0340-092;
40-12-0340-089; 40-12-0340-088; 40-12-0340-087;
40-12-0340-085; 40-12-0340-084; 40-12-0340-083;
40-12-0340-078; 40-12-0340-077; 40-12-0340-076;
40-12-0340-074; 40-12-0340-073; 40-12-0340-072;
WRIONIMPMR; 40-12-0340-071; 40-12-0340-070;
40-12-0340-140; 40-12-0340-139;#' 40-12-0340-138;
40-12-0340-136; 40-12-0340-135; 40-12-0340-134;
40-12-0340-132; 40-12-0340-131; 40-12-0340-130;
40-12-0340-128; 40-12-0340-127; 40-12-0340-126;
23-3f •2?K9-?'b2? Z3-3t-Zt?Sq'?Col ?
40-12-0340-121;
40-12-0340-117;
40-12-0340-113;
40-12-0340-109;
40-12-0340-090;-
40-12-0340-086;
40-12-0340-079;
40-12-0340-075;
4
40-12-0340-141;
40-12-0340-137;
40-12-0340-133;
40-12-0340-129;
40-12-0340-007;
IIIIIIIIIIIIIIIII
ooz.Ko
ASSIGNMENT OF OPEN-END MORTGAGE
ASSIGNMENT OF OPEN-END MORTGAGE
MORTGAGOR: Open-End Mortgage dated May 16, 2007
CONSTANTINOS J. MALLIOS and
ELAINE MALLIOS Upon premises in the Township of South
Middleton and Mt. Holly Springs
Cumberland County, Pennsylvania
to
: Original amount: $3,500,000.00
MORTGAGEE: Recorded on May 21, 2007
INTEGRITY BANK Mortgage Book 1992, Page 495
KNOW ALL MEN BY THESE PRESENTS, that Integrity Bank, the above-stated
Mortgagee ("Assignor"), for and in consideration of the sum of One Dollar ($1.00)
lawful money of the United States of America to Assignor, in hand, paid by WG
DEVELOPMENT, LLC, a Pennsylvania limited liability company ("Assignee") the
receipt whereof is hereby acknowledged, does grant, bargain, sell, assign, transfer and set
over unto the Assignee, without recourse, the above stated Open-End Construction
Mortgage, together with all the rights, remedies, incidents, and appurtenances thereunto
belonging, or in anywise appertaining, and all the right, title, interest, estate, property,
claim and demand whatsoever, of, in and to the same, and the premises therein described,
together with the notes or other obligation in said Mortgage recited, and all money,
principal, interest, late charges, collection costs, including attorneys' fees and costs due
or to become due thereon and thereby intended to be secured, and the warrant of attorney
to confess judgment thereon contained.
This Assignment is issued in accordance with and is subject to that certain
Assignment and Assumption Agreement of even date herewith by and between Assignor
and Assignee.
TO HAVE AND TO HOLD the same unto the Assignee, and its successors and
assigns, for their proper use and behoof.
WITNESS, the due execution hereof this 26th day of January, 2011.
ASSIGNOR:
INTEGRITY BANK
1
t
f
By: ; --- .
Dragan Dpdi ,
Senior Commercial Loan Officer
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
: SS
On this the 26th day of January, 2011 before me, the undersigned officer,
personally appeared Dragan Dodik, who acknowledged himself to be a Senior
Commercial Loan Officer of Integrity Bank, a Pennsylvania banking institution, and that
he, as such officer, being authorized to do so, executed the foregoing instrument for the
purposes therein contained by signing the name of the banking institution by himself as
such officer.
IN WITNESS WHEREOF, I set my hand and official seal.
COM MONWMTH OF PENPISymw ( .
raoWW seal
'j0a""e A. Bey. Notary Public Notary Public
Susqueh8.n9 Twp.. Dauphin County
my Commission r" Jury 8, 2011
Marnbwo nA " its (SEAL)
The undersigned herby certifies that the address of Assignee is 800 Bullfrog
Road, Gettysburg, Pennsylvania 17325.
Attorney or Agent for Assignee
ROBERT P. ZIEGLER
RECORDER OF DEEDS
CUMBERLAND COUNTY
1 COURTHOUSE SQUARE
CARLISLE, PA 17013
717-240-6370
Instrument Number - 201103539
Recorded On 1/31/2011 At 9:11:41 AM
* Instrument Type - ASSIGNMENT OF MORTGAGE
Invoice Number - 81275 User ID - KW
* Mortgagor - MALLIOS, CONSTANTINOS J
* Mortgagee - WG DEVELOPMENT LLC
* Customer - SMIGEL
* FEES
STATE WRIT TAX $0.50
STATE JCS/ACCESS TO $23.50
JUSTICE
RECORDING FEES - $11.50
RECORDER OF DEEDS
PARCEL CERTIFICATION $560.00
FEES
COUNTY ARCHIVES FEE $2.00
ROD ARCHIVES FEE $3.00
TOTAL PAID $600.50
I Certify this to be recorded
in Cumberland County PA
op co,Me
RECORDER O
nso
* Total Pages - 4
Certification Page
DO NOT DETACH
This page is now part
of this legal document.
* - Information denoted by an asterisk may change during
the verification process and may not be reflected on this page.
IIIIIIRInMAIIIIIIN
Cxk,b,4
0 ?• et 9
Prepared By:
Stuart J. Magdule, Esquire
Smigel, Anderson & Sacks, LLP
4431 North Front Street
Harrisburg, PA 17110
Return To:
Stuart J. Magdule, Esquire
Smigel, Anderson & Sacks, LLP
4431 North Front Street
Harrisburg, PA 17110
Parcel Id#: 23-31-2189-061; 23-31-2189-062; 40-12-0340-007; 40-12-0340-070;
40-12-0340-071; 40-12-0340-072;°40-12-0340-073; 40-12-0340-074;
40-12-0340-075; 40-12-0340-076; 40-12-0340-077; 40-12-0340-078;
40-12-0340-079; 40-12-0340-083; 40-12-0340-084; 40-12-0340-085;
40-12-0340-086; 40-12-0340-087; 40-12-0340-088; 40-12-0340-089;
40-12-0340-090; 40-12-0340-092; 40-12-0340-093; 40-12-0340-098;
40-12-0340-108; 40-12-0340-109; 40-12-0340-110;
40-12-0340-111; 40-12-0340-112; 40-12-0340-113; 40-12-0340-114;
40-12-0340-115; 40-12-0340-116; 40-12-0340-117; 40-12-0340-118;
40-12-0340-119; 40-12-0340-120; 40-12-0340-121; 40-12-0340-122;
40-12-0340-123; 40-12-0340-124; 40-12-0340-125; 40-12-0340-126;
40-12-0340-127; 40-12-0340-128; 40-12-0340-129; 40-12-0340-130;
40-12-0340-131; 40-12-0340-132; 40-12-0340-133; 40-12-0340-134;
40-12-0340-135; 40-12-0340-136; 40-12-0340-138; 40-12-0340-139;
40-12-0340-140; 40-12-0340-141; -12 -C 341-13?-
DEED IN.£IEU OF FORECLOSURE
THIS DEED, made the day of January, 2011 between
5- 11 CONSTANTINOS J. MALLIOS and ELAINE MALLIOS, husband and wife,
hereinafter called "Grantors"
AND
11110017i0 11
WG DEVELOPMENT, LLC, a Pennsylvania limited liability company, hereinafter called
"Grantee"
WITNESSETH, that the said Grantors for and in consideration of the sum of One and
00/100 ($1.00) Dollar lawful money of the United States of America, unto the Grantors in hand well
and truly paid by the said Grantee at or before the sealing and delivery of these presents, the receipt
whereof is hereby acknowledged, has granted, bargained, sold, aliened, enfeoffed, released,
conveyed and confirmed, and by these presents does grant, bargain, sell, alien, enfeoff, release,
convey and confirm, unto the said Grantee, Grantee's successors and assigns forever:
ALL THOSE CERTAIN lots situate in the Township of South Middleton Township and
Mt. Holly Springs Borough, Cumberland County, Commonwealth of Pennsylvania, being part of
Phases No. 5, 6 and 7 of Westgate Development prepared by Hartman & Associates, a copy of
which is recorded in the Recorder of Deeds Office of Cumberland County in Plan Book Volume
94, Page 59 on May 21, 2007, as follows:
'BEGINNING at a point on the western right-of-way line of Walnut Street at the line of lands now or
late of Thomas E. and Doris B. Kendall; thence from said point of BEGINNING by said land, North
eighty-nine degrees, zero minutes, thirty-four seconds West (N 89° 00'34" M, a distance of two
hundred-two and thirty-six hundredths feet (202.36) to a point; thence by Phase VIII, North five
degrees, forty-eight minutes, twenty-six seconds West (N 05° 48' 26" 149, a distance of six and
twelve hundredths feet (6.12) to a point; thence continuing by Phase VIII, North eighty-nine degrees,
zero minutes, five seconds West (N 89" 00' 05" 149, a distance of two hundred thirty-seven and
forty-four hundredths feet (237.44) to a point; thence continuing by Phase VIII, by a curve to the left,
having a radius of one thousand nine hundred seventy five feet (R=1975.00), an arc length of one
hundred sixty-one and sixteen hundredths feet (A/L=161.16} to a point; thence continuing by Phase
VIII, South three degrees, twenty-eight minutes, thirty-four seconds East (S 03° 28' 34" E), a
distance of six hundred thirty-two and thirty-one hundredths feet (632.31) to a point; thence by lands
now or late of Wesley United Methodist Church and by lands of Mt. Holly Springs Borough, South
seventy-four degrees, twenty minutes, zero seconds West (S 74° 20'00" M, a distance of one
thousand two hundred nineteen and thirty hundredths feet (1219.30) to a point; thence by Phase II
of Westgate Lot No. 169 and crossing Parkway Drive, North fifteen degrees, forty minutes, zero
seconds West (N 15° 40'00" M, a distance of one hundred ninety feet (190.00') to a point; thence
by the northern right-of-way line of Parkway Drive, South seventy-four degrees, twenty minutes, zero
seconds West (74° 20'00" 149, a distance of twenty-five and forty-one hundredths feet (25.41) to a
point; thence by Lot No. 98 of Phase II of Westgate, North fifteen degrees, forty minutes, zero
seconds West, (N 15° 40'00" W), a distance of one hundred twenty feet (120.00) to a point; thence
continuing by Lot No. 98 of Phase II of Westgate, South seventy-four degrees, twenty minutes, zero
seconds West (S 74° 20'00" 149, a distance of forty feet (40.00) to a point; thence by an existing
detention basin area of Phase II of Westgate, North sixteen degrees, forty minutes, zero seconds
West (N 16° 40' 00" W), a distance of three hundred thirty-three and ninety-three hundredths feet
(333.93) to a point; thence continuing by the same, North eighty-two degrees, twenty-five minutes,
zero seconds West (N 82° 25' 00" W), a distance of seventy-three and twelve hundredths feet
(73.12) to a point; thence by Lot No. 88 Phase II of Westgate and crossing Westgate Drive, North
fifteen degrees, eighteen minutes, fifty-five seconds East (N 15° 18' 55" E), a distance of one
hundred seventy-seven and seventy-two hundredths feet (177.729 to a point; thence by Open Space
Detention Basin of Phase II of Westgate and the northern right-of-way line of Westgate Drive, by a
curve to the left, having radius of one hundred seventy-five feet (R=175.00), an arc length of sixty-
eight and eighty-nine hundredths feet (A/L=68.89) to a point; thence continuing along the same,
North eighty-two degrees, forty-five minutes, thirty-two seconds East (N 82° 45'32" E), a distance
of fifty-two and seventeen hundredths feet (52.17) to a point; thence continuing along the same, by
a curve to the left, having a radius of twenty-five feet (R=25.00), an arc length of thirty-eight and
sixteen hundredths feet (A/L=38.16) to a point on the western right-of-way line of White Oak Circle;
thence by said right-of-way line the following two (2)courses: (1) North four degrees, forty-two
minutes, nineteen seconds West (N 04° 42' 19" M, a distance of fifty-two and seventeen
hundredths feet (52.17) to a point; (2) thence by a curve to the right, having a radius of two hundred
twenty-five feet (R=225.00), an arc length of one hundred eighty-five and twenty-one hundredths
feet (A/L=185.21) to a point; thence continuing by the Open Space Detention Basin by Lot No. 32,
Phase II of Westgate, North forty-seven degrees, thirty-two minutes, twenty-eight seconds West (N
47° 32'28" 149, a distance of one hundred sixty-seven and thirty-five hundredths feet (167.35) to a
point; thence still by Open Space Detention Basin and by Lots 132 and 133, North forty-six degrees,
twenty-five minutes, nine seconds East (N 46° 25'09" E), a distance of one hundred fifty-one and
eighty-eight hundredths feet (151.88) to a point on the southern right-of-way line of lands now or late
of Consolidated Rail Corporation (Conrail); thence along Conrail the following seven (7) courses (1)
South eighty-one degrees, forty-five minutes, forty-five seconds East (S 81° 45'45" E), a distance
of seven hundred ten and four hundredths feet (710.04) to a point, (2) South sixty-two degrees,
thirty-three minutes, zero seconds East (S 62° 33'00" E), a distance of eighty-one and seventy-six
hundredths feet (81.76) to a point, (3) North seventy-four degrees, forty-two minutes, ten seconds
East (N 74° 42' 10" E), a distance of ninety-five feet (95.00) to a point, (4) South eighty-seven
degrees, three minutes, fifty-one seconds East (S 87° 03'51 " E), a distance of three hundred sixty-
four and forty-two hundredths feet (364.42) to a point, (5) South eighty-nine degrees, fifty minutes,
twenty-one seconds East (S 89° 50' 21" E), a distance of forty-eight and fifty-six hundredths feet
(48.56) to a point, (6) South eighty-nine degrees, seven minutes, thirty seconds East (S 89° 07'30"
E), a distance of two hundred twenty and four hundredths feet (210.04) to a point, (7) North eighty-
eight degrees, forty-eight minutes, forty-eight seconds East (N 88° 48' 48" E), a distance of one
hundred twenty-four and seventy-two hundredths feet (124.72) to a point; thence by lands now or
late of Mary E. Fisher, South zero degrees, zero minutes, fifteen seconds East (S 00° 00'15" E), a
distance of one hundred thirteen and twenty-one hundredths feet (113.217 to a point; thence by
lands of Mary E. Fisher and the northern right-of-way line of Westgate Drive (Lauman Avenue
Extended), South eighty-nine degrees, zero minutes, five seconds East (S 89° 00' 05" E), a
distance of one hundred ninety-two and ninety-seven hundredths feet (192.977 to a point on the
western right-of-way line of Walnut Street; thence by the western right-of-way line of Walnut Street,
South five degrees, forty-eight minutes, twenty-eight seconds East (S 05° 48' 28" E), a distance of
fifty-six and forty-five hundredths feet (56.457 to a point, the place of BEGINNING. Said tract
contains 1413708.85 sq ft or 32.4543 acres.
LESS AND EXCEPTING Lots 120-129 as conveyed as shown in Record Book 280-868;
Lot 118 as conveyed as shown in Instrument # 200800670; Lot 119 as conveyed as
shown in Instrument # 200800682; and Lots 116, 117, 140, 141 and 142 as conyeyed
as shown in Instrument # 20080086.
[THE REMAINDER OF THE PAGE IS INTEN'T'IONALLY LEFT BLANIKJ
ALL THAT CERTAIN tract of land situate in the Township of South Middleton
Township and Mt. Holly Springs Borough, Cumberland County, Commonwealth of
Pennsylvania, being part of Phase No. 8 of Westgate Development prepared by Hartman &
Associates, a copy of which is recorded in the Recorder of Deeds Office of Cumberland County
in Plan Book Volume 94, Page 59 on May 21, 2007, as follows:
BEGINNING at a point on the southern right-of-way line of Westgate Drive (Lauman
Avenue Extended) at the line of other lands now or late of Kollas and Costopoulos; thence from
said point of BEGINNING by lands now or late of Kollas and Costopoulos, lands now or late of
Thomas E. and Doris B. Kendall, lands now or late of Stanley J. and Kathryn Zygmunt, lands
now or late of Dennis A. and Debra K. Gardner, lands now or late of Raymond S. and Helen
Gritt, lands now or late of Cyrus H. and Beverly J. Russel, lands now or late of Andrew M. and
Holly L. Shughart, lands now or late of Terry L. March, lands now or late of Timothy R. Swartz,
lands now or late of William E. Lehman, and lands now or late of Dorothy N. Sheaffer, South
five degrees, forty-eight minutes, twenty-six seconds East (S 05° 48' 26"E), a distance of seven
hundred seventy-two and twenty-seven hundredths feet (772.27') to a point; thence by lands now
or late of Ross J. Yingst, South eight-four degrees, zero minutes, zero seconds West (S 84° 0' 0"
W), a distance of one hundred sixty and eight hundredths feet (160.08') to a point; thence by
lands now or late of Sylvavia Shoe Manufacturing Corporation, North thirty degrees, forty-three
minutes, zero seconds West (N 30° 43' 00" W), a distance of two hundred thirty-six and five
hundredths feet (236.05') to a point; thence continuing by the last mentioned, South seventy-two
degrees, fifty-six minutes, zero seconds West (S 72° 56' 0" W), a distance of one hundred sixty-
five and eighty hundredths feet (165.80') to a point; thence by a line of Phase No. VI of
Westgate, Lots No. 156, 155, 154, 153, 152 and 151 respectively, North three degrees, twenty-
eight minutes, thirty-four seconds West (N 03° 28' 34" W), a distance of six hundred thirty-two
and thirty-one hundredths feet (632.31') to a point on the southern right-of-way line of Westgate
Drive; thence by a curve to the right, having a radius of one thousand nine hundred seventy-five
feet (R=1975.00'), an arc length of one hundred sixty-one and sixteen hundredths feet
(A/L=161.16') to a point; thence continuing by the same, South eighty-nine degrees, zero
minutes, five seconds East (S 89° 0' 5" E), a distance of two hundred thirty-seven and forty-four
hundredths feet (237.44') to a point, the place of BEGINNING.
SAID TRACT CONTAINS 285287.48 sq. ft. or 6.5493 acres.
BEING Phase 8 of the Final Subdivision Plan of Westgate Development, Mt. Holly
Springs, Cumberland County, Pennsylvania.
UNDER AND SUBJECT to all exceptions, reservations, conditions and restrictions as
appear in prior deeds of conveyance.
AND ALSO UNDER AND SUBJECT, NEVERTHELESS, to all easements, restrictions,
encumbrances and other matters of record or that which a physical inspection or survey of the
premises would reveal.
BEING PART OF THE SAME PREMISES which Kollas and Costopoulos, a
Pennsylvania General Partnership, comprised of William C. Kollas and William C. Costopoulos,
by deed dated May 15, 2007, and recorded May 21, 2007, at Book 280, Page 395, in the Office
of the Recorder of Deeds in and for Cumberland County, Commonwealth of Pennsylvania,
granted and conveyed unto Constantinos J, Mallios and Elaine Mallios, the Grantors herein.
This is a Deed in lieu of foreclosure and is therefore exempt from the
payment of realty transfer tax.
TOGETHER with all and singular the buildings and improvements, ways, streets, alleys,
passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances,
whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the
reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest,
property, claim and demand whatsoever of the said Grantors in law, equity, or otherwise,
howsoever, of, in and to the same and every part thereof.
TO HAVE AND TO HOLD, the above described parcel or piece of ground, with any and
all improvements erected thereon the hereditaments and premises hereby granted with the
appurtenances unto the said Grantee, and the Grantee's successors and assigns, for the use and
benefit of the Grantee and the Grantee's successors and assigns forever, subject as aforesaid.
AND the said Grantors, and successors and assigns of the Grantors, do covenant and agree
to and with the said Grantee and the Grantee's respective successors and assigns, that the said
Grantors and the Grantors' successors and assigns, all and singular the hereditaments and premises
hereby granted or mentioned and intended to be so, with the appurtenances, unto the Grantee and
Grantee's successors and assigns, against the Grantors and the Grantors' successors and assigns, and
against all and every person and persons whomsoever lawfully claiming or to claim the same or any
part thereof, by, from or under them or any of them, shall and will, subject as aforesaid,
SPECIALLY WARRANT and defend.
IN WITNESS WHEREOF, said Grantors have hereunto set their hands and seals the day
and year first above written.
Signed, Sealed and Delivered
In the Presence of:
40 ?o
Constantinos J. Mallios
Elaine Mallios
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF Dom'
On this, the day of Beeem r',201 0, before me a Notary Public, in and for the -&i? Commonwealth of P Sylvania, the undersigned officer personally CONSTANTINOS J.
MALLIOS, known to me or satisfactorily proven to be the person whose name is subscribed to the
within instrument, and acknowledged that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notarial Seal
Kathy L. Mummert, Notary Public
Carlisle Borough, Cumberland County, PA
My commission Expires August 11, 2011
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAiii ? L ?,tr\i eA! i 1?A A
7 ? , g
tart' ub is
My Commission Expires:
SS:
On this, the day of ?I-Q-' before me a Notary Public, in and for the
Commonwealth of Pennsylvania, the undersigned officer personally ELAINE MALLIOS, known
to me or satisfactorily proven to be the person whose name is subscribed to the within instrument,
and acknowledged thaNm executed the same for the purposes therein contained.
She
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
iLW,
Notarial Seal , Notary u Ill'
Kathy L. Mummert, Notary Public
Carlisle Borough, Cumberland County, PA My Commission Expires:
My Commission Expires August 11, 2011
I hereby certify that the precise registered address of the Grantee is 800 Bullfrog
Road, Gettysburg, Pennsylvania 17325.
A omey or Gr tee
? M
ROBERT P. ZIEGLER
RECORDER OF DEEDS
CUMBERLAND COUNTY
1 COURTHOUSE SQUARE
CARLISLE, PA 17013
717-240-6370
Instrument Number - 201109047
Recorded On 3/23/2011 At 9:21:31 AM
* Instrument Type - DEED
Invoice Number - 84177 User ID - KW
* Grantor - MALLIOS, CONSTANTINOS J
* Grantee - WG DEVELOPMENT LLC
* Customer - SMIGEL
* FEES
STATE WRIT TAX $0.50
STATE JCS/ACCESS TO $23.50
JUSTICE
RECORDING FEES - $20.50
RECORDER OF DEEDS
PARCEL CERTIFICATION $580.00
FEES
AFFORDABLE HOUSING $11.50
COUNTY ARCHIVES FEE $2.00
ROD ARCHIVES FEE $3.00
CARLISLE AREA SCHOOL $0.00
DISTRICT
SOUTH MIDDLETON SCHOOL $0.00
DISTRICT
MT. HOLLY SPRINGS $0.00
BOROUGH
SOUTH MIDDLETON TOWNSHIP $0.00
TOTAL PAID $641.00
* Total Pages - 10
Certification Page
DO NOT DETACH
This page is now part
of this legal document.
I Certify this to be recorded
in Cumberland County PA
RECORDER O /D2DS
nso
* - Information denoted by an asterisk may change during
the verification process and may not be reflected on this page.
002707
111111111111111111111111
Exl%
WG DEVELOPMENT, LLC, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
VS. NO.
CONSTANTINOS J. MALLIOS and
ELAINE MALLIOS, husband and wife, ACTION FOR DECLARATORY
Defendants. JUDGMENT
STIPULATION
Plaintiff WG Development, LLC and Defendants Constantinos J. Mallios and Elaine
Mallios, husband and wife, hereby stipulate that they are requesting the Court of Common Pleas
for Cumberland County to grant the relief requested in the Declaratory Judgment Complaint and
enter an Order declaring that the Deed in Lieu of Foreclosure be deemed effective as of March
22, 2011, the date it was delivered to the Plaintiff for recording.
IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have
executed this Stipulation on the day and year below written.
WITNESS:
iI Q
tug
Constantinos J. Mallios
&Elaine Mallios
WG DEVELOPMENT, LLC
C41 y:
Name: Thomas E. Varish
Title: Member
h
WG DEVELOPMENT, LLC,
Plaintiff,
vs.
CONSTANTINOS J. MALLIOS
and ELAINE MALLIOS, husband
and wife,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO.
ACTION FOR DECLARATORY
JUDGMENT
CERTIFICATE OF SERVICE
I, Peter M. Good, attorney for the Plaintiff in the above-captioned matter, certify
that I this day served a copy of the foregoing Declaratory Judgment upon the person(s)
indicated below by depositing a copy of the same in the United States Mail, first class,
postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows:
Susan Hartman, Esquire
Duncan & Hartman
1 Irvine Row
Carlisle, PA 17013-3019
Attorney for Defendants
SMIGEL, ANDERSON & SACKS, L.L.P.
Date: 9 7111 By:
Peter M. Good, Esquire - ID #64316
Darryl J. Liguori, Esquire - ID #91715
River Chase Office Center, 3rd Floor
4431 North Front Street
Harrisburg, PA 17110
(717) 234-2401
Attorney for Plaintiff
V
WG DEVELOPMENT, LLC,
Plaintiff,
vs.
CONSTANTINOS J. MALLIOS and
ELAINE MALLIOS, husband and wife,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVAN IA
r
'-q
NO ?--
uu C?
I
4C)
ACTION FOR DECLARATORY -
JUDGMENT N , c
ORDER -;; ``'
AND NOW, on this day of , 2011, upon consideration
of Plaintiffs Action for Declaratory Judgment and the attached Stipulation by the Parties
agreeing to the relief requested, it is hereby ORDERED that the Deed in Lieu of Foreclosure
between the parties recorded on March 23, 2011 in the Cumberland County Recorder of Deeds
Office as Instrument #201109047 be deemed effective as of March 22, 2011 the date it was
delivered to the Plaintiff for recording.
Distribution:
Peter M. Good, Esquire, Smigel, Anderson & Sacks, LLP, 4431 North Front Street, 3rd Floor,
Harrisburg, PA 17110-1778 (Attorney for Plaintiff).
? Susan Hartman, Duncan & Hartman, 1 Irvine Row, Carlisle, PA 17013-3019 (Attorney for
Defendants).
BY THE COURT: