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HomeMy WebLinkAbout11-7135 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1200 ASSOCIATES, CIVIL DIVISION NO.: Plaintiff, vs. TYPE OF PLEADING ti 1200 CAMP HILL BYPASS, LLC CIVIL ACTION - COMPLAINT T IN MORTGAGE FORECLOSURE < -= ? Defendant. `? `'ter C-) FILED ON BEHALF OF: 1200 Associates, Plaintiff TO DEFENDANT(S) COUNSEL OF RECORD FOR THIS YOU ARE HEREBY NOTIFIED TO PLEAD TO THE PARTY: ENCLOSED COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF A FAULT JUDGMENT Scott A. Dietterick, Esquire MAY BE EN RED AGAI ST YOU. Pa. I.D. #55650 Kimberly A. Bonner, Esquire Pa. I.D. #89705 A I HEREBY CERTIFY THAT THE ADDRESS OF THE PLAINTIFF IS: JAMES, SMITH, DIETTERICK & 4479 Chambers Hill Road CONNELLY LLP Harrisburg, PA 17111 AND THE DEFENDANT(S): P.O. BOX 650 2933 N. Front treet Hershey, PA 17033 Harrisburg, A 1 10 ATTORN FO IFF (717) 533-3280 CERTIFICATE OF LOCATION I HEREBY CERTIFY THAT THE LOCATION OF THE REAL STATE AFFECTED BY THIS LIEN IS 1200 Ca Hill ss Camp Hil, PA 17011 ATTOR INTIFF f?Ra?Pd a? ak-4 g 12,V4 a(?Y?as IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1200 ASSOCIATES, CIVIL DIVISION NO.. Plaintiff, vs. 1200 CAMP HILL BYPASS, LLC, Defendant NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claim 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 SHOULD NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. NOTICE TO DEFEND & LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1200 ASSOCIATES, CIVIL DIVISION NO.. Plaintiff, vs. 1200 CAMP HILL BYPASS, LLC, Defendant AVISO USTED HA SIDO DEMONDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro do los proximos veinte (20) dias despues de la notifacacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comperencencia escrita y redicanco en la Courte por escrito sus defensas de, y objecciones a, los 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 propieded u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABAGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME A VAYA A LA SIGUEINTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. NOTICE TO DEFEND & LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1200 ASSOCIATES, CIVIL DIVISION NO.. Plaintiff, vs. 1200 CAMP HILL BYPASS, LLC, Defendant CIVIL ACTION - COMPLAINT IN MORTGAGE FORECLOSURE And now comes 1200 Associates by its attorneys, James, Smith, Dietterick & Connelly LLP, files this Complaint in Mortgage Foreclosure as follows: The Plaintiff is 1200 Associates, is a Pennsylvania general partnership which has its principal place of business at 4479 Chambers Hill Road, Harrisburg, PA 17111. 2. The Defendant, 1200 Camp Hill Bypass, LLC, is a limited liability company authorized to conduct business in the Commonwealth of Pennsylvania with an address of 2933 N. Front Street, Harrisburg, Pennsylvania, 17110. 3. On or about August 16, 2007, Defendant executed a Note in favor of Community Banks in the original principal amount of $5,248,000.00. A true and correct copy of said Note is marked Exhibit "A", attached hereto and made a part hereof. 4. On or about August 16, 2007, as security for payment of the aforesaid Note, Defendant made, executed and delivered to Community Banks a mortgage in the original principal amount of $5,248,000.00 on the premises hereinafter described, with said Mortgage being recorded in the Office of the Recorder of Deeds of Cumberland County on September 12, 2007 as instrument number 200735484. A true and correct copy of said Mortgage containing a description of the premises subject to said Mortgage is marked Exhibit "B", attached hereto and made a part hereof. 5. On or about September 9, 2011, Susquehanna Bank, successor by merger to Community Banks assigned the aforesaid Mortgage to Plaintiff pursuant to the terms of a certain Assignment of Mortgage to be recorded in the office of the Recorder of Deeds of Cumberland County. A true and correct copy of said Assignment is marked Exhibit "C", attached hereto and made a part hereof. 6. Defendant is the record and real owner of the aforesaid mortgaged premises. 7. Defendant is in default under the terms of the aforesaid Mortgage and Note for, inter alia, its default on a third-party obligation resulting in an action brought against Defendant and the aforesaid mortgaged premises. Plaintiff was not required to send Defendant(s) written notice of Plaintiff s intention to foreclose said Mortgage pursuant to 41 P.S. §403 (Act 6 of 1974) prior to the commencement of this action for the reason that the aforesaid Mortgage is not a "residential mortgage" as defined in 41 P. S. §101. 9. The amount due and owing Plaintiff by Defendant is as follows: Principal $4,921,564.40 Interest through 9/9/11 $ 6,291.30 Late Charges through 9/9/11 $ 9,359.45 Satisfaction Fee $ 2,954.56 Attorneys' fees $ 5,000.00 TOTAL $4,945,169.71 plus interest on the principal sum ($4,921,564.40) from September 9, 2011, at the default rate of $717.73 per diem, plus additional late charges, and costs (including advances for taxes and insurance), additional attorneys' fees and costs and for foreclosure and sale of the mortgaged premises. WHEREFORE, Plaintiff demands judgment in mortgage foreclosure for the amount due of $4,945,169.71, with interest thereon at the default rate of $717.73 per diem from September 9, 2011, plus additional late charges, and costs (including advances for taxes and insurance), additional attorneys' fees and costs and for foreclosure and sale of the mortgaged premises. JAMES, SMITH, DIETI'W(A & WNNELLY LLP Dated: 111-3 ` BY: Scott A. ietterick, Esquire PA I.D. # 55650 Kimberly A. Bonner, Esquire PA I.D #89705 Attorneys for Plaintiff P.O. Box 650 Hershey, PA 17033 (717) 533-3280 THIS IS AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. EXHIBIT "A" PROMISSORY <NOTE' ?r??j?p? "n 4a#IB ,??>s><? t1+9in' 9;:: , CaTE ; edu ?y,? Accotfi?t`y'.; 'mat , ft?fhais, .: _55 24$.00 fl0 16.;-20t}7' . '3 96,20327 90'18 + 'a2 'I E41.1 TO References in the shaded area are for Lender's use only and do not limit the applicability of this document to any Particular loan or item. Any item above containing ""• •" has been omitted due to text length limitations, ourrower: 1200 Camp Hill Bypass, LLC (TIN: 26-0497358) Lender: CommunityBanks 2933 N. Front Street Strawberry Square Harrisburg, PA 17110 1S North 3rd Street Harrisburg, PA 17101 1717) 213.2380 Principal Amount: $5,248,000.00 Date of Note: August 16, 2007 PROMISE TO PAY. 1200 Camp Hill Bypass. LLC ("Borrower") promises to pay to CommunltyBanks I"Lender"1, or order, in lawful money of the Unhed States of America, the principal amount of Five Million Two Hundred Forty-eight Thousand & 001100 Dollars (x5,248,000.00), together with interest on the unpaid principal balance from August 16, 2007, until paid in full. PAYMENT. Subject to any payment changes resulting from changes in the Index, Borrower will pay this ban in accordance with the following payment schedule; 48 monthly consecutive principal and Interest payments in the initial amount of 837,437.83 each, beginning September 16, 2007, with interest calculated on the unpaid principal balances at an interest rate of 7.000% per annum; 191 montFdy consecutive principal and interest payments in the InItial amount of $41,318,23 each, beginning September 15, 2011, with interest calculated on the unpaid principal balances at an interest rate based on the Well Street, Prime Rate as pubBahod'1n The Wall Street Journal (currently 8,250%i, resulting in an initial interest rate of 8.250%: and one principal and interest payment :of $2,083,139.14 on August 18, 2027, with Interest calculated on the unpaid principal' balances at an interest rate based on the Wall Street Prime Rate as published in The Wall Street Journal fourrantly 8:260%1, resulting In an Initial Interest.rine of 8.250%. This estimated final payment is boxed on the assumptlen•that oil payments will be made exactly as scheduled and that the index does not change; the actual final payment will be for all principal and accrued Interest not yet paid, together with any other unpaid amounts under this Note. Unless otherwise agreed or required by appl cable law, payments will be applied first to any accrued unpaid Interest; then to principal; then to any unpaid collection costs; and then to any late charges. The annual merest rate for this Note is computed an a 3651360 basis; that is, by applying the ratio of the annual Interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number -ofdays the principal balance Is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. VARIABLE INTEREST RATE. The interest rate on this Note. is subject to change from time to time based on changes in. an independent index which is the Wall Street Prime Rate is published in The Wall Street Journal Ithe "Index"). The Index is not necessarily the lowest rail: charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notifying Borrower. Lender will tell Borrower the current index rate upon Borrower's request. The interest rate change will not occur more often than each day. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 8.250% per annum. The interest rate or;rates to be applied to the unpaid principal balance during this Note will be the rate or rates set forth herein in the "Payment" section. Notwithstanding any other provision of this Note, after the first payment stream, the interest rate for each subsequent payment stream will be effective as of the last. payment date of the just-ending payment stream. NOTICE:. Under no circumstances will the interest rate on this Note be more than the maximum, rate allowed by applicable low. Whenever increases occur in the interest rate, Lender, at its option, may do ono or more of the following: (A) increase Borrower's payments to ensure Borrower's loan will pay off by its original final maturity date, (BI increase Borrower's payments to cover accruing interest, (C) increase. the number of Borrower's payments; and (D) continue Borrower's payments at the same amount and Increase Borrower's final payment. PREPAYMENT PENALTY. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of -the dine of the loan and will not. be subject to refund upon early payment (whether voluntary or as a result of default),. except as otherwise required by law. Upon prepayment:of this Note, Lender is entitled to the following prepayment penalty: In planning for the advancing of the proceeds of this loan and in planning its Investment portfolio, the Lender is relying upon this Obligation and the interest to be derived therefrom, and some assured period of interest accrual Is a bargained-for-consideration in this transaction. Accordingly, during theterm -of the loan, the Lender shall be required to accept no partial prepayments of principal, other than those resulting from regularly scheduled amortization payments. In the event that Borrower prepays the principal of this Obligation prior to maturity, such payments shall be accompanied' by. a Prepayment Pena" equal to two percent (2,00%) of the prepaid amount. This Prepayment Penalty is a bargained-for consideration and nota liquidated damages provision. This Prepayment Penalty shall only be apprrcable if the prepayment of principal is derived from the balance of this Note being refinanced through another Individual, agency, or other financial institution. The Lender reserves the sole right to determine If any prepayment of principal is eligible for this prepayment exemption. This Prepayment penalty provision shall not he applicable in the event that the Lender's acceleration of the payment terms of this Obligation triggers the prepayment, unless the delautt resulting in such acceleration is reasonably deemed by the Lender to be a purposeful default. No partial. prepayment Shell postpone or interrupt payments of future installments of principal and interest, which shall continue to be due and payable of the time and in the amounts set forth above until payment In full. Except for the foregoing, Borrower may pay e8 or a portion of the amount owed earlier than It is due, Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, early payments will reduce the principal balance due and may result in Borrower's making fewer payments.' Borrower agrees not to send Lender payments marked "laid in full", "without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed' to Lender. All written communications concerning disputed amounts, including any check or other payment Instrument that indicates that the. payment constitutes '.payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: Communityaanks, Strawberry Square, 15 North 3rd Street, Harrisburg, PA 17191.. LATE CHARGE.' If a payment is 10 days or more late, Borrower will be charged 5.000% of the unpaid portion of the regularly scheduled payment or $50.00, whichever is greater. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by adding a 2.000 percentage paint margin ("Default Rate Margin"). The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had there been no default. After maturity, or after this Note would have matured had there been no default, the Default Rate Margin will continue to apply to the final interest rate described in this Note, If judgment is entered in connection with this Note, interest will continue to accrue after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. DEFAULT. Each of the following shall constitute an event of default ("Event of Default") under this Note; Payment Default. Borrower fails to make. any payment when due under this Note. Other Defaults. Borrower fails to comply with or to perform, any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained in any otter agreement between Lender and Borrower. Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents is false or misleadinp in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Death or Insolvency. The dissolution of Borrower (regardless of whether election to continue is made), any member withdraws from. Borrower, or any other termination of Borrower's existence as a going business-ni if the appointment of a receive- for any part Borrowerproparty any - the insolvency of Borrowers 's in assignmant for the benefit or creditors, any typo of creditor workout+ ? or the commencement of any proceeding under any oankruptcy or insolvency lvency laws s by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, , repossession or any other method, by any creditor o; Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishmem of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there Is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor Or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness PROMISSORY NOTE Loan No: 901018192 (Continued) Page 2 evidenced by this Note. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired. Insecurity, Lender in good taith believes itself inserure. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This Includes, subject to any limits under applicable law, Lender's attorneys' fees end Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Note will be governed by federal low applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to Its conflicts of law provisions. This Note has been accepted by Lender In the Commonwealth of Pennsylvania. CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Dauphin County, Commonwealth of Pennsylvania, RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings, or some other account). This Includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lander, to the extent permitted by applicable law, to charge or setoff all sums owing or, the indebtedness against any and all such accounts. COLLATERAL. Borrower acknowledges this Note is secured by the foliowing collateral described in the security instruments listed herein: (A) a Mortgage dated August 16, 2007, to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania. fBl an Assignment of All Rents to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania. CALL PROVISION. Notwithstanding the Payment Section of this Promissory Note, the Lender shall 'have the right to declare the entire unpaid balance of principal and interest due and payable on August 16, 2017. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and is successors and assigns GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them.. Borrower and any other person who, signs, guarantees or endorses this Note, to the extent allowed bylaw, waive.presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who. signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend Irepeatedly and for any length of time) this loan. or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL :ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL. BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE. HUNDRED DOLLARS 0500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WANES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER 1200,CGA1011" HILL BYPASS, Lh9?"'?, Laaft J. ozzi, Jr., Pr t of Q00 Camft'.Hin Bypass, LJ/' 1 Signed, acknowledged antl de red IlarlKe presence of: X \ C_tiI Witness ,•+ew rw,.,nw. ?.. ?.a..meoe car. Hwws.....r rw,.,,.. M. ,rn. mm. r. use,, n.....,.. .:>. an?.rnwve?nnwarr in-i+.,o n.?r - ?. EXHIBIT `B" r' PREPARED BY: Tyra A. Kunkle, Community8anks, 15 North 3rd Street, Harrisburg, PA 17101, (7171213-2380 WHEN RECORDED MAIL TO: CommunityBanks Strawberry Square 15 North 3rd Street Harrisburg, PA 17101 (717) 213-2380 PARCEL IDENTIFICATION NUMBER: s ;. FOR RECORDER'S USE ONLY MORTGAGE THIS IS A PURCHASE MONEY MORTGAGE MAXIMUM LIEN. The unpaid principal balance of advances exclusive of interest and unpaid balances of advances and other extensions of credit, secured' by the Mortgage made for the payment of taxes, assessments, maintenance charges, insurance premiums and costs incurred for the protection of the mortgaged premises shall not exceed at any one time $5,248,000.00. Amount Secured Hereby. $5,248,000.00 THIS MORTGAGE dated August 16, 2007, is made and executed between 1200 Carp Hill Bypass, LLC, whose address is 2933 N. Front Street, Harrisburg, PA 17110 (referred to below as "Grantor") and CommunityBanks, whose address is 15 North 3rd Street, Harrisburg, PA 17101 (referred to below as "Lender" i. GRANT OF MORTGAGE. For valuable consideration, Grantor grants, bargains, sells, conveys, assigns, transfers, releases, confirms and mortgages to Lender all of Grantor's right, title, and Interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all streets, lanes, alleys, passages, and ways; all easements, rights of way, all liberties, privileges, tenements, hereditaments, and appurtenances thereunto belonging or anywise made appurtenant hereafter, and the reversions and remainders with.respect thereto; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including without (imitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Cumberland County, Commonwealth of Pennsylvania: See Exhibit "A" which is attached to this Mortgage and made a part of this Mortgage as if fully set forth herein. The Real Property or its address is commonly known as 1200 Camp Hill Bypass, Camp Hill, PA 17011. Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Jniform Commercial Code security interest in the Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY WTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE IN THE ORIGINAL PRINCIPAL AMOUNT OF 95,248,000.00, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PURCHASE MONEY MORTGAGE. If any of the debt secured by this Mortgage is lent to Grantor to acquire title to the Real Property, this Mortgage shall be a purchase money mortgage under 42 P.S. Section 8141. PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to Lender all MORTGAGE Loan No: 901018192 (Continued) Page 2 amounts secured by this Mortgage as they become due and shall strictly perform all of Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE Of THE PROPERTY. Grantor agrees that Grantor's possession and use of the Property shall be governed by the following provisions; Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property. Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and warrants to Lender that (1) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage„ treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or fc) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and warranties contained' herein are based on Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws; and {2) agrees to indemnify, defend, and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify and defend, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the liar of this Mortgage and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance not commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Heal Property without Lender's prior written consent. As a condition to the removal of any Improvements,, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage. Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans With Disabilities Act. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property. DUE ON SALE - CONSENT BY LENDER. Lender may, at Lend'er's option, declare immediately due and payable all sums secured by this Mortgage upon the sale or transfer, without Lender's prior written consent, of all or any part of the Real MORTGAGE Loan No: 901018192 (Continued) Page 3 Property, or any interest in the Real Property A "sale or transfer" means the conveyance of Real Property or any right, title or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Real Property. If any Grantor is a corporation, partnership or limited liability company, transfer also includes any change in ownership of more than twenty-five percent (25%) of the voting stock, partnership interests or limited liability company interests, as the case may be, of such Grantor. However, this option shall not be exercised by Lender if such exercise is prohlbited by federal law or by Pennsylvania law. TAXES AND LFENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage: Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against or on accourn of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of any liens having priority over or equal to the interest of Lender under this Mortgage, except for those liens specifically agreed to in writing by Lender, and except for the lien of taxes and assessments not due as further specified in the Right to Contest paragraph. Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. It a' lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the 'lien arises or, if a lion is filed, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enfor-.ement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Property. Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE., The following provisions relating to insuring the Property are a part of this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain ;policies of fire insurance with standard extended coverage endorsements on a<replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with tender being named as additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but not limited to hazard, business interruption and boiler insurance as Lender may require. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished without a minimum of thirty (30) days' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, if available, for the full unpaid principal balance of the loan and any, prior liens on the property, securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan, Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, at Lender's election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of MORTGAGE Loan No, 901018192 (Continued) Page 4 repair or restoration if Grantor is not in default under this Mortgage. Any proceeds which have not been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender under this Mortgage, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the indebtedness. If Lender holds any proceeds after payment in full of the indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Grantor's Report on Insurance. Upon request of Lender, however not more than once a year, Grantor shall furnish to Lender a report on each existing policy of insurance showing: (1) the name of the insurer; l2) the risks insured; (3) the amount of the policy; f41 the property insured, the then current replacement value of such property, and the manner of determining that value; and (5) the expiration date of the policy. Grantor shall, upon request of Lender, have an independen, appraiser satisfactory to Lender determine the cash value replacement cost of the Property. LENDER'S EXPENDITURES. if any action or proceeding is commenced that would materially affect Lender's interest in the Property or if Grantor fails to comply with any provision of this Mortgage or any Related Documents, including but not limited to Grantor's failure'to discharge or pay when due any amounts Grantor is required to discharge or pay under this Mortgage or any Related Documents, Lender on Grantor's behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Property and paying all costa for insuring, maintaining and preserving the Property, All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by :Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will 1A) be payable on demand; (B) ' be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or 12) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and:payable at the Note's maturity. The Mortgage also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon Default. Grantor's obligation to Lender for all such expenses shall survive the entry of any mortgage foreclosure judgment. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Mortgage: Title, Grantor warrants that: ia? Grantor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Mortgage, and (bl Grantor has the full right, power, and authority to execute and deliver this Mortgage to Lender. Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the lawful claims of aff persons. In the event any action or proceeding is commenced that questions Grantor's title or the interest of Lender under this 'Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such participation, Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. Survival of Representations and Warranties. All representations, warranties, and agreements made by Grantor in this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature, and shall remain in full force and effect until such time as Grantor's Indebtedness shall be paid in full. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding In condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor maybe the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit such participation. Application of Net Proceeds. if all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that al or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of the Property, The net proceeds of the award shall mean the award -after payment of all actual costs, expenses, and attorneys' fees incurred by Lender in connection with the condemnation. MORTGAGE Loan No: 901018192 (Continued) Page 5 IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Mortgage: Current Taxes, Fees and Charges. Upon request by Lander, Grantor shall execute such documents in addition to this Mortgage and take whatever other action is requested by Lender to perfect and continue Lender's lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this 'Mortgage, including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage. Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by this Mortgage; 12) a specific tax on Grantor which Grantor is authorized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (31 a tax on this type of Mortgage chargeable against the Lender or the holder of the Note; and (4) a specific tax on all or any portion of the lnoebtedness or on payments of principal and interest made by Grantor. Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Mortgage, this event shall have the same effect as an Event of Default, and Lander may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before it becomes delincuent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. Security Interest. Upon request by Lender, Grantor shall take whatever action is requested by Lender to perfect and continue Lender's security interest in the Rents and Personal Property. In addition to recording this Mortgage in the real property records, Lender may, at any time and without further authorization from Grantor, file executed counterparts, copies or reproductions of this Mortgage as :a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable law. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES; ADDITIONAL AUTHORIZATIONS. The following provisions relating to further assurances and additional authorizations are a part of this Mortgage; Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) the liens and security interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereafter acquired by Grantor. 'Unless prohibited by law or tender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this paragraph. Additional Authorizations. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably authorizes Lender to make, execute, deliver, file, record and do all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. It is understood that nothing set forth herein shall require Lender to take any such actions. FULL PERFORMANCE. If Grantor pays all the Indebtedness when due, and otherwise performs all the obligations imposed upon Grantor under this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage anc suitable statements of termination of any financing statement on file evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, if permitted by applicable law, any reasonable termination fee as determined by Lender from time to time. MORTGAGE Loan No: 901018192 (Continued) Page 6 EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute an Event of Default under this Mortgage Payment Default. Grantor falls to make any payment whey, due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required; by this Mortgage to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lion. Other Defaults. Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Mortgage or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Grantor, Default in Favor of Third Parties. Should Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Grantor's property or Grantor's ability to repay the Indebtedness or Grantor's ability to perform Grantor's obligations under this Mortgage or any related document. False Statements. Any warranty, representation or statement made or furnished to Lender by Grantor or on Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Defective Collateralization. This Mortgage or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a; valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The dissolution of Grantor's (regardless of whether election to continue is made), any member withdraws from the limited liability company, or any other termination of Grantor's existence as a going business er, the insolvency of Grantor, the appointment of a receiver for any part of Grantor's property, env . assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor. creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether b by judicial i ! ! proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any governmental agency against any property securing the Indebtedness. This includes a garnishment of any of Grantor's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Grantor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Breach of Other Agreement. Any breach by Grantor under the terms of any other agreement between Grantor and Lender that is not remedied within any grace period _provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. Adverse Change. A material adverse change occurs in Grantor's financial condition, or Lender believes the prospect of payment or performance of the indebtedness is impaired. insecurity. Lender in good faith believes itself insecure. RIGHTS AND REMEDIES ON DEFAULT, Upon the occurrence of an Event of Default and at any time thereafter, Lender, at Lender's option, may exercise any one or more of the following rights and remedies, in addition to any other rights or remedies provided by law: Accelerate Indebtedness. Lender shall have the right at its option, after giving such notices as required by applicable law, to declare the entire Indebtedness immediately due and payable. UCC Remedies. With respect to all or any part of the Personal Property, tender shall have all the rights and remedies of a secured party under the Uniform Commercial Code, Collect Rents. Lender shall have the right, without notice to Grantor, to take possession of the Property and, with or without taking possession of the Property, to collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above tender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably authorizes Lender to endorse instruments received in payment thereof it the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights MORTGAGE Loan No: 901018192 (Continued) Page 7 under this subparagraph either in person, by agent, or through a receiver, Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Property. Possession of the Property. For the purpose of procuring possession of the Property, Grantor hereby authorizes and empowers any attorney of any court of record in the Commonwealth of Pennsylvania or elsewhere, as attorney for Lender and all persons claiming under or through Lender, to sign an agreement for entering in any competent court an amicable action in ejectment for possession of the Property and to appear for and confess judgment against Grantor, and against all persons claiming under or through Grantor, for the recovery by Lender of possession of the Property, without any stay of execution, for which this Mortgage, or a copy of this Mortgage verified by affidavit, shall be a sufficient warrant; and thereupon a writ of possession may be 'issued forthwith, without any prior writ or proceeding whatsoever. Nonjudicial Sale. If permitted by applicable law, Lender may foreclose Grantor's interest in all or in any part of the Personal Property or the Real Property by non-judicial sale. Deficiency Judgment. Lender may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this section. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of Lender. Other Remedies. -ender shall have all other rights and remedies provided in this Mortgage or the Note or available at law or in equity. Sale of the Property. To the extent permitted by applicable law, Grantor hereby waives any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any part of the Property together or separately, in one safe or by separate sales. Lender shall be entitled to bid at any public sale on all or any porion of the Property. Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Personal Properly or of the time after which any private sale or other intended disposition of the Personal Property is to be made. Unless otherwise required by applicable law, reasonable notice shall mean notice given at least ten 0 0) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real Property. Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Mortgage, after Grantor's failure to perform, shall not affect Lender's right to declare a default and exercise its remedies. Nothing under this Mortgage or otherwise shall be construed so as to limit or restrict the rights and remedies available to Lender following an Event of Default, or in any way to limit or restrict the rights and ability of Lender to proceed directly against Grantor and/or against any other co-maker, guarantor, surety or endorser and/or to proceed against any other collateral directly or indirectly securing the Indebtedness. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Mortgage, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports fincluding foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by law. MORTGAGE Loan No: 901018192 (Continued) Page 8 NOTICES. Unless otherwise provided by applicable law, any notice required to be given under this Mortgage shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile sunless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent to Lender's address, as shown near the beginning of this Mortgage. Any party may change its address for notices under this Mortgage by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided by applicable law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage-. Amendments. This Mortgage, together with any related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Mortgage. No alteration of or amendment to this Mortgage shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Annual Reports. If the Property is used for purposes other than Grantor's residence, Grantor shall furnish to Lender, upon request, a certified statement of net operating income received from the Property during Grantor's previous fiscal year in such form and detail as Lender shall require. "Net operating income" shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Property. Caption Headings. Caption headings in this Mortgage. are for convenience purposes only and are not to be used to interpret or define the provisions of this Mortgage. Governing Law. This Mortgage will be governed by fsedaral' law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Panrsyhrania without regard to its conflicts of law provisions. This Mortgage has been accepted by Lender in the Commonwealth of Pennsylvania. Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisdiction of the courts of Dauphin County; Commonwealth of Pennsylvania, No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Mortgage unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Mortgage shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Mortgage. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Mortgage, the granting of such consent by Lender in any instance shall not constitute continuing consent to :subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Severabfl'rty. If a court of competent jurisdiction finds any provision of this Mortgage to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Mortgage. Unless otherwise required by law, the illegality, invalidity, or unentorceability of any provision of this Mortgage shall not affect the legality, validity or enforceability of any other provision of this Mortgage. Merger. There shall be no merger of the interest or estate created by this Mortgage with any other interest or estate in the Property at any time held by or for the benefit of Lender in any capacity, without the written consent of Lender. Successor Interests. The terms of this Mortgage shall be binding upon Grantor, and upon Grantor's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. Time is of the Essence. Time is of the essence in the performance of this Mortgage. Waive Jury. AN parties to this Mortgage hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by any party against any other party, DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Mortgage. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Mortgage shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means 1200 Camp Mill Bypass, LLC and includes all co-signers and co-makers MORTGAGE Loan No: 901018192 lCantinued) Page 9 signing the Note and all their successors and assigns, Default. The word "Default" means the Default set forth in this Mortgage in the section titled "Default". Environmental Laws. The words ".Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, at seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, at seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events of default set forth in this Mortgage in the events of default section of this Mortgage. Grantor. The word "Grantor" means 1200 Camp Hill Bypass, LLC. Guarantor. The word "Guarantor" means any guarantor., surety, or accommodation party of any or all of the Indebtedness. Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lander, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum'by-products or any fraction thereof and asbestos. Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property, Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expanded or advanced by Lender to discharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligations under this Mortgage, together with interest on such amounts as provided in this Mortgage. Lender. The word "Lender" means CommunityBanks, its successors and assigns, Mortgage. The word "Mortgage" means this Mortgage' between Grantor and Lender.. Note. The word "Note" means the promissory note dated August 16, 2007, in the original principal amount of $5,248,000.00 from Grantor to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to,. all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or'other disposition of the Property. Property. The word "Property" means collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the -real property, interests and rights, as further described in this Mortgage. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collatere mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, income. issues, royalties, profits, and other benefits derived from the Property. MORTGAGE Loan No: 901018192 (Continued) Page 10 GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS, THIS MORTGAGE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS MORTGAGE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. GRANTOR: 1200 CA1 "MILL BYPASS, LLC BY", (Seal) Lauis l ozzl, Jr., side of 1 mp Hil Bypass, LLC Signed, acknowledged and delivered in the presence of: Witness X Witness _ CERTIFICATE OF RESIDENCE I hereby certify, that the precise address of the mortgagee, CommunityBanks, herein is as follows: Strawberry Square, 15 North 3rd Street, Harrisburg, PA 17101 Attorney or Agbnt" for Mortgagee LIMITED LIABILITY COMPANY ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA I )SS COUNTY OF GU.. f ?^ i r . I On this, the ? - _ y of 20 tt? da before me the undersigned Notary Public, personally appeared Lois J. Capozzi, Jr., President of 1200 Camp Hill Bypass, LLC, who acknowledged himself or herself to be the member or designated agent of 1200 Camp Hill Bypass, LLC, a Limited Liability Company, and that he or she as such a member or designated agent, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the Limited Liability Company by himself or herself as a member or designated agent. Inwitness whereof. I hereunto set my hand and official seal. ?? r`. ?I.. JDDY GOLDRING, Newry public ubilc ?' a Notary Public in and for the State of City of Harrisburg Daup' in C;Ilnty _- mv Commission E*rLs United General Title Insurance Company Commitment SCHEDULE C Legal Description ALL THAT CERTAIN those certain two tracts or parcels of land and premises, situate, lying and being in the Township of East Pennsboro in the County of Cumberland and Commonwealth of Pennsylvania, more particularly described as follows: TRACT ONE: BEGINNING at a point in the Northern right-of-way line of Legislative Route 708, said point being referenced from the Southeastern right-of-way line of Route 770 the following distances as measured along the right-of-way line of said Legislative Route 708: (a) 858.28 feet to a point; thence (b) South 18 degrees 12 minutes East, 4.94 feet to a point; thence (c) 28.86 feet to a point, the point of BEGINNM; thence along other lands of Harrisburg Hotel Company, now or formerly of which this tract was formerly a part, North 14 degrees 09 minutes 09 seconds West, 321.24 feet to a point; thence continuing along said lands North 78 degrees 10 minutes 50 seconds East, 240.24 feet to a point; thence continuing along said lands by an arc curving to the right having a radius of 52.08 feet and a tangent of 50 feet, a distance of 79.69 feet to a point; thence continuing along the said lands South 14 degrees 09 minutes 09 seconds fast, 220.41 feet to a point; thence continuing along said lands South 28 degrees 48 minutes 51 seconds West, 41.06 feet to a point in the Northern right-of=way line of said Legislative Route 708, and thence along the right-of-way line of said Legislative Route 708 by an arc curving to the left having a radius of 5779.65 feet, a distance of 262.19 feet to a point, the Place of BEGINNING. CONTAINING 2.06 acres according to a plan dated November 11, 1966 entitled "Subdivision Plan of Tract No. V, as prepared by William B. Whittock, Professional E''naineer and approved by the Planning Commission of East Pennsboro 't'ownship and the Board of Commissioners of said Township and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania in Plan Book 18. Page 69. TOGETHER with the right of passage over a thirty (30') feet wide private roadway. where presently located; leading northwardly from. Legislative Route 708 and lying eastwardly of and generally parallel with the eastern boundary line of the premises herein conveyed. and together with the right of passage over a strip of land of Harrisburg Hotel Company. now or formerly, lying between the eastern boundary of the tract of land herein conveyed and the western boundary of said private road for access to and from said private road to the premises herein granted and conveyed; PROVIDED, however, that the said Franklin Associates, its successors and assigns, shall reimburse Harrisburg Hotel. Company, its successors and assigns, forty (40) percent of the cost of ordinary maintenance (excluding the cost of snow removal) of that portion of the said private road teadina northwardly from PA Legislative Route No. 708 and lying eastwardly of the premises herein conveyed. United General Title Insurance Company Commitment ALSO TOGETHER WITH THE BENEFIT OF the covenant made by Harrisburg Hotel Company in its Deed to The Hospital Association of Pennsylvania dated February 20, 1967, and recorded in Deed Book "G", Volume 22, Page 415, Cumberland County Records, wherein the said Harrisburg Hotel Company, for itself'and its successors and assigns. covenanted and agreed that it, the said Harrisburg Hotel Company, shall not erect any structures more than four (4) feet in height within forty (40) feet of the property lines of the premises herein conveyed. UNDER AND SUBJECT, nevertheless, to the following conditions and restrictions to which the hereby granted tract or piece of land and any building or structure that may be erected thereon hereinafter shall be and remain subject as long as the adjacent land or any part thereof of Harrisburg Hotel Company or Cumberland Dills, Inc., shall be used by either the said Harrisburg Hotel Company or Cumberland Hills, Inc., or any lessee thereon for the operation of a motel or restaurant: l . No structure more than four (4) feet in height shall be erected within forty (40) feet of the property lines of the premises herein conveyed. 2. No building or structure shall exceed forty (40) feet in height. For the purpose of this restriction the height of a building or structure shall be the vertical distance from the mean level of the ground on which a building or structure more than four (4) feet in height may be erected as provided in Paragraph (1) above to the highest point of the roof for the flat roofs, to the deck line of mansard roofs, and to the mean height between eaves and ridge for gabled, hipped and gambreled roofs, but not including chimneys, spires, towers, elevators pent houses, tanks and similar projections. 3. No building or structure shall be erected as, or for, or used or occupied as, or for a saloon, public eating or drinking place, private club serving food or drink, motel, hotel, public house, or any offensive or malodorous occupation or purpose or be used for any purposes other than that of an office building, church or library. 4. Trees shall not be planted or permitted to grove in any manner that would substantially obscure the view of the Penn Harris Motor Inn now the Radisson - Penn Harris Hotel-and Convention Center, from PA. Legislative Route 708. ALSO UNDER AND SUBJECT to rights of The Bell Telephone Company of PennsvIvania acquired by Miscellaneous Book 161, Page 1114, Cumberland County Records and all restrictions of record. TRACT NO. TVVO BEGINNING at a point on the western line of a thirty (30) foot drive, said point being the following two (2) courses and distances from the Northern Right-of=Way line of the Cramp Hill By-Pass (L.R. 708) at the Southeast corner of Tract No. 2, more particularly described on the plan recorded in Plan Book 41, Page 40 and Plan Book 18, Page 69: North 28 degrees 48 minutes 51 seconds East, 41.06 feet: United General Title Insurance Company Commitment 2. North 14 degrees 09 minutes 09 seconds West, 224.40 Feet; thence by the Northern line of aforementioned Tract No. 2 by a curve to the left, having a radius of 52.08 feet and an arc length of 79.69 feet to a point; thence by the same South 78 degrees 10 minutes 50 seconds West, a distance of 240.24 feet to a point at line of Tract No. 3 of the hereinafter mentioned plan; thence by same North 14 degrees 09 minutes 09 seconds West,'a distance of 135.00 feet to a point at Tract No. I of the above identified plan; thence along Tract No. 1, North 75 degrees 50 minutes 51 seconds East, a distance of 320.00 feet to a point; thence by same South 14 degrees 09 minutes 09 seconds East, a distance of 99.00 feet to a point: thence by same South 02 degrees 53 minutes 52 seconds West, a distance of 102.31 feet to a point, the Place of BEGINNING. BEING all of Lot No. 4 as shown on the Re-Subdivision Plan for Penn Harris Company, recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania on June 19, 1989 at Plan Book 58, Page 74. CONTAINING 1.05 acres. UNDER AND SUBJECT to a twenty (20) foot sanitary sewer easement. BEING THE SAME premises which 1200 Associates, a Pennsylvania General Partnership„ by its deed dated the ? '`?`` day, of August, 2007 and to be recorded simultaneously herewith, granted and conveyed unto 1200 Camp Hill Bypass, LI_C, a Pennsylvania Limited Liability Company, MORTGAGOR herein.. ROBERT P. ZIEaGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COUR'T'HOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200735484 Recorded On 9/12/2007 At 8:52:59 AM * Instrument Tyc - MORTGAGE Invoice Number - 4288 User ID - KW * Mortgagor - 1200 CAMP HILL BYPASS LLC * Mortgagee - COMMUNITYBANKS * Customer - MID-PENN/ADLER * FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $10.00 JUSTICE RECORDING FEES - $29.50 RECORDER OF DEEDS AFFORDABLE HOUSING $11.50 COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAD $56.50 * Total Pages - 14 Certification Page DO NOT DETACH This page is now part of this legal document. I 'Certify this to be recorded in Cumberland County PA a?? c'vya RECORDER O D EDS - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. Illlllill?'1Ia161Y EXHIBIT "C" TAX PARCEL NO. 09-20-1854-007 ASSIGNMENT OF MORTGAGE MORTGAGOR: 1200 CAMP HILL BYPASS, LLC to : Mortgage dated August 16, 2007 Upon premises in East Pennsboro Township, Cumberland County, Pennsylvania Original amount: $5,248,000.00 MORTGAGEE: SUSQUEHANNA BANK., successor by merger to CommunityBanks Recorded on September 12, 2007 Instrument No. 200735484 KNOW ALL MEN BY THESE PRESENTS, that Susquehanna Bank, successor by merger to CommunityBanks, 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 1200 ASSOCIATES, a Pennsylvania general partnership ("Assignee") the receipt whereof is hereby acknowledged, does grant, bargain, sell, assign, transfer and set over unto the Assignee, without recourse, the above stated 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 beh.oof. WITNESS, the due execution hereof this 9"' day of September, 2011. ASSIGNOR: SUSQUrHAN;?A BANK By: istant Vice A2553363:2. COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN SS On this the 9`' day of September, 2011 before me, the undersigned officer, personally appeared Benjamin Hicks, who acknowledged himself to be an Assistant Vice President of Susquehanna 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. ? ?? ? hl. • ? ? ;fir-.... COMMONWEALTH Or PENNSYLVANIA Notana'Seat Notary Public }f Sandra L Heaw,:Votary:='lbic S et nrr,Tw .,?l: Courl (SEAL) Mer, bor, ?snnsFiva:+ir Assoca ut:on v" ivofmrla:a The undersigned herby certifies that the address of Assignee is 4479 Chambers Hill Road, Harrisburg, Pennsylvania 17111. Attorney or Agent r Assignee A2553363:21 s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1200 ASSOCIATES, CIVIL DIVISION Plaintiff, vs. 1200 CAMP HILL BYPASS, LLC, Defendant NO.: VERIFICATION I, Norman, K.A. Hoffer, P A 2T N ? rz depose and say subject to the penalties of 18 Pa.C.S.A., sec. 4904 relating to unworn falsification to authorities that 1 am authorized to make this verification on behalf of 1200 Associates and the facts set forth in the foregoing Complaint in Mortgage Foreclosure are true and correct to the best of my information, knowledge and. belief Name: Norman K.A. Hoffer Title:__ Pia-TN?g Dated: Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor 01 OML T,4 3 , L0 F I 2011 SEP 30 PM 2: 3€3 UMBERL", NG C0Uf1V PE NPiSY L ,! P, 1200 Associates vs. 1200 Camp Hill Bypass, LLC Case Number 2011-7135 SHERIFF'S RETURN OF SERVICE 09/15/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: 1200 Camp Hill Bypass, LLC, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvania to serve the within Complaint In Mortgage Foreclosure according to law. 09/19/2011 02:22 PM - Dauphin County Return: And now September 19, 2011 at 1422 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do hereby certify and return that I served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: 1200 Camp Hill Bypass, LLC by making known unto Craig Adler, Attorney for 1200 Camp Hill Bypass, LLC at 2933 N. Front Street, Harrisburg, Pennsylvania 17110 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.00 September 28, 2011 SHERIFF'S OFFICE OF CUMBERLAND COUNTY ;c Cou, TVq-UJ0 Shenff releoso?+ i ,,- SO ANSWERS, RON R ANDERSON, SHERIFF 2 11 OCT 10 PM 2- CUMBERLAND ?U ,q, PENNSYL Nli' 1200 ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff PENNSYLVANIA V. NO. 11-7135 - Civil Term 1200 CAMP HILL BYPASS, LLC, MORTGAGE FORECLOSURE Defendant PRELIMINARY OBJECTIONS OF DEFENDANT, 1200 CAMP HILL BYPASS, LLC NOW COMES, the Defendant, 1200 Camp Hill Bypass, LLC ("LLC"), by and through its counsel, Cunningham & Chernicoff, P.C., and submits its Preliminary Objections to Plaintiff's Complaint, and in support thereof avers as follows: Plaintiff is allegedly the assignee-of-record of that certain note in the original principal amount of $5,248,000 issued by Defendant to Community Banks, N.A., the predecessor-in-interest to Susquehanna Bank, N.A. (the "Note") and mortgage in like amount (the "Mortgage"). 2. On September 19, 2011, Plaintiff caused Defendant to be served with a Complaint in Mortgage Foreclosure (the "Complaint") docketed hereto. 3. The Complaint alleges, inter alia, that Defendant is in default under the terms of the Note and Mortgage for "its default on a third-party obligation resulting in action brought against Defendant and the aforesaid mortgaged premises." Complaint, T 7. 4. The Note and the Mortgage are attached to the Complaint as Exhibits "A" and "B," respectively; however, Plaintiff failed to attach the addendum. Upon information and belief, the default to which Plaintiff refers in its Complaint was a default made upon the loan while it was held by Susquehanna Bank, not Plaintiff/assignee. 6. As set forth in an email from counsel for Susquehanna Bank (the "Email"), McNees, Wallace & Nurick, dated August 19, 2011, Defendant was allegedly in default, with the right to cure by September 6, 2011, for the following reasons: a. monetary default requiring, as of August, 2011, payment of $95,659.58; b. requirement to bring 2010 delinquent real estate taxes and past due 2011 county and township real estate taxes current; requirement to deliver to Susquehanna Bank the guarantor, Louis Capozzi, Jr.'s, 2010 federal income tax return; and d. requirement to deliver to Susquehanna Bank any new tenant leases and a copy of a letter to such tenant informing them to pay the rent to Susquehanna Bank. A true, correct, and complete copy of the Email is attached hereto as Exhibit "A", and made a part hereof. 7. As of August 25, 2011, the above "defaults" were cured by Defendant's performance of the stated requirements to cure; accordingly, the loan was reinstated by Susquehanna Bank prior to the assignment. As evidence of such reinstatement in September, 2011, Susquehanna Bank sent an invoice to Defendant setting forth a lower rate of 3.25%. Such lower interest rate would be charged to Defendant if Defendant was not then in default as to the loan from Susquehanna Bank. 9. The alleged third-party default is believed to relate to an alleged default by the Defendant of an amount secured by a second mortgage on Defendant's real property. The second mortgage holder is an affiliate of Plaintiff. 10. Such default to the third party allegedly existed as of the date of the Email. 11. The Addendum to the Loan Agreements sets forth a 30-day notice and right to cure defaults. 12. Defendant has meritorious defenses to the alleged third party default. Thus, no default exists. No notice of default was sent by Plaintiff to Defendant 30 days prior to the filing of the Complaint, as required under the terms of the addendum. PRELIMINARY OBJECTION PURSUANT TO PA.R.C.P. 1028(A)(4) LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 13. Defendant hereby incorporates paragraphs 1-12 as if more fully set forth at length below. 14. Because all alleged defaults were timely cured by Defendant prior to the assignment of the Note and Mortgage to Plaintiff, there is no default under which Plaintiff can institute a legally sufficient cause of action in mortgage foreclosure. 15. Because the 30 day period after notice to Defendant of any alleged default has not expired prior to the filing of this Complaint, there is no default under which Plaintiff can institute a legally sufficient cause of action in mortgage foreclosure. 16. The delivery of a notice of default and the expiration of the 30 days thereafter without cure by Defendant is a condition precedent to Plaintiffs taking any legal action against Defendant including without limitation the filing of the instant action in Mortgage Foreclosure. 17. Accordingly, Plaintiff s Complaint is legally insufficient and must be dismissed. WHEREFORE, Defendant, 1200 Camp Hill Bypass, LLC, respectfully requests that this Honorable Court dismiss Plaintiff's Complaint and grant to Defendant such other relief as may be just and proper. PRELIMINARY OBJECTION PURSUANT TO PA.R.C.P. 1028(A)(3) INSUFFICIENT SPECIFICITY IN A PLEADING 18. Defendant hereby incorporates paragraphs 1-17 as if more fully set forth at length below. 19. Plaintiff's Complaint makes reference to a "default on a third-party obligation". 20. As above-stated, Defendant believes that the cure period as to the third party default has not yet expired, so that no cause of action in mortgage foreclosure can be presently maintained by Plaintiff. 21. Defendant, however, cannot adequately respond to the averments of Plaintiff s Complaint without more certainty as to what Plaintiff refers respecting the alleged default of "third-party obligation". WHEREFORE, Defendant, 1200 Camp Hill Bypass, LLC, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objection for Insufficient Specificity in a Pleading and Order Plaintiff to file an Amended Complaint within twenty (20) days. Respectfully submitted, CUNNINGHAM & CHERNICOFF, P.C. Date: October 10, 2011 By: e E. CFaw ff, Esquire u ein Co No: 23380 Bruce J. Wa ky , Esquire Supreme Court ID No: 58799 Nicholas A. Fanelli, Esquire Supreme Court ID No: 308136 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 Attorneys for Defendant, 1200 Camp Hill Bypass, LLC EXHIBIT `A' Robert Chernicoff From: Nissly, Nedric (NNisslyQmwn.comj Sent: Friday, August 19, 20112:51 PM To: Craig Adler, Robert Chemicoff Cc: Robert Rahal Subject: 1200 Camp Hill Bypass, LLC - loan payment amounts needed to cure monetary defaults Craig and Bob- Pane 1 of 3 Below is a recap of the principal and interest payments applied to the 1200 Camp Hill Bypass, LLC loan. It does not include the $1,427.00 August rent received from Donald Logan, CPA, which will be applied to the interest balance due 6/16/11. Total rents received by the Bank total $75,421 and include the following: • Donald Logan - five (5) checks received in the amount of $1,427 or $7,135. • Hinton & Associates - four (4) checks received in the amount of $1,575 or $6,300. • UPMC - three (3) payments were received from the Borrower in the amount of $17,689 or $53,067. Tenant continues to wire payments directly to the Borrower's depository account. • Post Buckley (know Atkins) - one (1) check was received directly from the tenant in the amount of $2,973. Bank received $2,973 from the Borrower in May and June which represented the rent proceeds which had been received by the Bank and mistakenly deposited into the account of the Borrower. Total received by the bank from the tenant and borrower, which has been applied as payments to the loan, is $8,919. (Note: two $2,973 checks received by the Bank in checks payable to the Borrower were mistakenly deposited into the depository account of the Borrower on 7/5/11 and 8/1/11. These funds, in the aggregate amount of $5,946, have not been forwarded to the Bank by the Borrower. Total received to date by the Bank is $75,421, including the $1,427 rent check from Donald Logan which will be applied to the interest due for 6/16/11, currently in the amount of $7,576.87. As you review the chart attached below, please note that the $19,265.13 interest payment of 3/8/11 was paid by the Borrower prior to the Bank collecting rents on the mortgaged property. The Bank waived the late charges associated with the payment that was due 4/16/11 and late charges due not appear on the Borrowers statement for the April payment. The Bank agreed to do so because the Bank held the $26,666 of checks collected until 5/16/11 when they were processed as payment for the 4/16/11 interest payment of $21,329.26 and the remaining $5,336.74 applied towards the 5/16/11 payment. As is outlined below, the Borrower is presently due for $22,210.92 for the June 16 interest of $7,576.87 and principal of $14,634.05. The Bank will apply the above mentioned $1,427 check from Donald Logan to the interest due, thereby reducing the amount of interest due to $6,149.87 and the total balance due to $20,783.92. The Borrower is also due for the regular monthly payments due in the amount of $37,437.83 each for on 7/16/11 and 8/16/11. In total, the payment amounts presently due are $95,659.58 which represent the following payments: $20,783.92 due 6/16/11 $37,437.83 due 7/16/11 and 8/22/2011 Page 2 of 3 $37,437.83 due 8/16/11. Here is the breakdown on the above listed amounts: Interest Posted Principal Date Paid Total Paid Paid Toward Paid 3/8/2011 $19,265.13 $19,265.13 3/16/2011 5/16/2011 $26,666.00 $21,329.26 4/16/2011 $5,336.74 5/16/2011 6/10/2011 $23,664.00 $23,560.96 5/16/2011 $103.04 6/21/2011 $20,662.00 5/16/2011 $8,437.09 $12,224.91 6/16/2011 7/7/2011 $3,002.00 $3,002.00 6/16/2011 Amount Borrower still owes: Interest Principal Total Due Date Remaining Remaining Remaining 6/16/2011 $7,576.87 $14,634.05 $20,783.92* 7/16/2011 $8,581.86 $28,855.97 $37,437.83 8/16/2011 $7,628.35 $28,909.48 $37,437.83 *after application of the $1,427.00 August rent received from Donald Logan, CPA to the interest balance due 6/16/11 in addition to the payment of the amounts due the Bank of $95,659.58, the Borrower will need to bring current the 2010 delinquent real estate taxes and the past due 2011 county and township real estate taxes, which were billed January 1, 2011, and are now past the penalty period. The Bank acknowledges that the 2011 school taxes are not yet delinquent but must be paid on or before December 31, 2011. Additionally, the Guarantor will need to deliver to the Bank his signed 2010 federal income tax return. All of this needs to be done before Tues. Sep. 6, 2011 to "cure" the outstanding defaults. Ned X. McNees Email Signature Logo (A1814295) Nedric L. Nissly Financial Services Group 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Direct Dial: 717-237-5357 8/22/2011 Page 3 of 3 Direct Fax: 717-260-1731 Mobile: 717-503-3900 nnissiy@mwn.com NOTICE: The foregoing message may be protected by the attomey-client privilege. If you believe that it has been sent to you in error, do not read k Please reply to the sender that you have received the message in error, then delete It. Thank you. 8/22/2011 CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant, with the law firm of Cunningham & Chernicoff, hereby certify that a true and correct copy of PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT was served by first-class mail, postage prepaid, on the following: Scott A. Dietterick, Esquire James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 CUNNINGHAM & CHERNICOFF, P.C. Date: October 10, 2011 By Julieume Ametrano F"Home\N FANF,LLI\Documents\1200 Camp Hill Bypass, LLC\Preliminary Objeclio - Mortgage Foreclosure Action.wpd