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USTED HA SIDE DEMANDADO/A EN CORTE. Si usted de sea dafendersa do las
demendas que se presentan mas edelente en les sigulentes peglnes, debe tomar ecclon dentro
de los proxlmos velnte (20) dies despues de Ie notlflceclon de esta Demende y Avlso
redicendo personalmente 0 por medio de un ebogado una comparecencla escrita y redicando
en la Corte por escrito sus defensas de, y objecciones a, las demendes presentedas aqui en
contre suva. Se Ie advierte de que sl usted falla de tomar occion como se describe
anteriormente, el coso puede procedar sin usted y un fallo por cualqulor sume de dinero
reclameda en la demende 0 cualquier otra reclamecion 0 remedlo sollcltodo por el demandente
puede ser dlctedo en contra suva por la Corte sin mas avlso adlcional. Usted puede perder
dinero 0 propledad u otros derechos Importantes para usted,
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIA T AMENTE.
SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VAYA A LA
SIGUIENTE OFICINA PARA AVERIGUAR DON DE PUEDE ENCONTRAR ASISTENCIA LEGAL.
Cumberland County Court Administrator
4th Floor, Cumberland County Courthouse
1 Courthouse Square
Cerllsle, PA 17013
(717) 240-6200
RHOAfS 8< SINON
sa R, Ruhl
ne South Market Square
,0, Box 1146
arrisburg. PA 17108-1146
( 17)233-5731
By:
l
Attorneys for Plalntllf
, .
FACTUALBACKGROUNQ
3. On or about December 1, 1992, Wood's executed a certain Mortgage
Note whereby Wood's promised to pay to the order of the Resolution Trust Corporation,
('RTC') in Its capacity as conservator for Homestead Federel Savings Association, the
principal sum of $192,832,36 with interest, A true and correct copy 01 the Wood's Mortgage
Note is attached hareto et Exhibit' A' and incorporated herein by reference,
4, Tha Morlgaga Note provided the manner by which Wood's was required
to satlsly the terms of the Mortgage Notll.
6, The Mortgage Note provided that the entire principal sum plus any and
all accrued interest remaining unpaid was to be paid In lull on or before December 31, 1994.
6, Several weeks prior to the December 31, 1994 payment date, Wood's
contactad Knuteson Mortgage Company ('Knuteson'), sgent of the RTC servicing the
Mortgsge Note, regarding the payoff amount for the Mortgage Note,
7, At that time, Knuteson advised Wood's that the Mortgage Note had been
transferred or otherwise assigned to Delendant National loan Investors, loP.
.2.
S. The.eafter, at the direction 01 Knuteson, Wood', contected oelendant
to obteln the proper amount due end remelnlng to be paid on the Mortgege Note.
9. Speclficelly, on or about December 16. 1994. Wood's and Delendanl
confirmed the emount 01 outstendlng obligation due on the Morlgege Note,
10. Therealter, Wood's paid in full and completely satisfied the amounts due
and outstending on the Mortgage Note.
11. With perticular relevence to the current Complaint, the Mortgage Note
was secured by a Mortgage upon a certain percol 01 roal proporty localed In SlIvar Bp.lng
Township, Cumberland County, Pennsylvenla, provldad by Wood's as Mortgagor to RTC 81
Mortgegee. A true end correct copy 01 the Mortgage Is alleched heroto at EKhlblt .0' and
incorporated herein by releronce,
12, During the conversation which occurred on oecombor 16, 1994 bot ween
Wood'a ond Dolendent regarding tho amount of the outstanding balance due onlhe Mortgage
Note, Delendant agreed that the property which wes secured by the Mortgoge NOle would be
released and the app.op.lele Morlgege satlslaclion documonts lIIed with the Courl upon
Wood's peyment 01 the belence dua,
.3.
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G0f1
MORTGAGE NOTE
5192,832,36
December 1,1992
POR VALUE RECEIVED, WOOD'S DRIVE ASSOCIATES, a Pennsylvanla
general partnership having an office al 6570 Carlisle Pike, Mechanicsburg, Cumberland
County, Pennsylvania 17055 (hereinafter referred to as the "Maker") does hereby,
irrevocably and unconditionally promise to pay to the order of RESOLUTION TRUST
CORPORATION, IN ITS CAPACI1Y AS CONSERVATOR FOR HOMESTEAD FEDERAL
SAVINGS ASSOCIATION, SUCCESSOR IN INTEREST TO HOMESTEAD SAVINGS
ASSOCIATION (hereinafter referred to as the "Payee") the principal sum of ONE HUNDRED
NINElY.1WO THOUSAND EIGHT HUNDRED 'I1iIRlY-1WO AND 36/100 DOlLARS
(5192,S32,36) with interest from the date of this Note at the rate of seven and one.half
percent (7Ya%), per annum on the unpald principal balance until the principal sum is paid
in full under the tenns hereof. '
Principal and Interest shall be pa)'llble In lawful money of the United States
of Americ., to Payee at the offices of Homestead Federal Savlnp Association at 120 South
Union Street, Middletown, Pennsylvania 17057 or such other place as the holder of thb
Note may desisnate, in the following manner:
Interett shall be paid on the lint day of each month during the tenn of the
Note on the outstanding principal balance during the immediately precedlna month. The
Initial monthly Interest payment shall be due on the lint day of January, 1993.
TblJ Note is secured by a Monple (the "Mortgale") o! even date herewith
upon the property (the "Propeny") described In said Mortgage located In Silver Spring
Township, County of Cumberland, Penn.sylvania, given by the Maker, as mongagor. The
provisions of the Monpge are incorporated herein by reference.
Upon the conveyance of any or all of the Propeny, Maker lhall make a
payment of the principal amount of this Note equal to lWENlY.FIVE THOUSAND
DOU.AR.S ($25,000.00) multiplled by the number of acres of the Propeny, rounded to the
nearest tenth of an acre, beIni conveyed. Said principal payment. .hall be paid at the
settlement on the conveyance of all or any part of the Property.
~ the entire unpaid principalsurn, plus any and all
accrued Interest on the unpaid principal surn, and any other amounts due to Payee
hereunder shall be paid In full on December 31, 1994.
Makers may prepay the principal balance hereof, or any ponion thereof, at
any time without penalty. .
If the Maker shall faU to observe or perform any of the tenns, agreements,
covenant. and conditions of the Maker contained herein or the Mongage, the Payee In iu
discretion, but without any duty to do so, and without waiving any default, may ~rform
any of .uch terms, agreement., covenant. and conditions, In whole or In part, and any
money advanced or expended by the Payee In or toward the fulfillment of such telmS,
EXHIBIT "^"
agreements covenants and conditions shall be due on demand and shall become a part of
and be add~ to the indebtedness due under this NOle, with interest to be paid thereon at
the then current rate provided herein from the date of the respective advance or
expenditure.
In the event of any default in payment of any installment of principal or
interest under thiI Note for a period of fifteen (15) days after the same shall have become
due and payable, or if an event of default, u described In the Mongege, shall occur, an
event of default shall occur hereunder. If an event of default shall occur hereunder, the
principal amount outstanding on this Note, together with said interest thereon, may, at the
option of the Payee, become lmmedlately due and payable with the effect provided herein
and in the Mongaae. In such cue, the Payee may also recover aU costs of suit and other
expenses in connection therewith, together with reuonable anomey's fees, but not less
than Three Thousand Dollan (53.000.00), together with Interest on any judgment obtained
by the Payee at the then current rate provided herein, includinl interest ,at that rate from
and after the date of any sheriffs sale until actual payment Is made by the Sheriff to the
Payee of the full amount.
In the event of any default of required payment hereunder, interest shall
continue to accrue on the unpaid principal balance at the current rate provided for herein.
Such interest shall continue to aCcnle despite any lepl moratorium on payment or any
delay In payment ordered or permined by any coun III\II1\Inr juriJdlction.
The Maker does hereby irrevocably authorize and empower any anorney of
any coun of record In the Commonwealth of pennsylvania or elsewhere, In cue of an
event of uncured default hereunder, to appear for the Maker and on its behalf and to
confeu judsment apt the Maker In favor of the Payee, with or without declaration
filed, for the unpaid principal balance hereof, topther with aU amounb for which the
Maker may be Uable to the Payee hereunder, including. but not llinited to, unpaid Interest,
COlts and other l!zpenaeI of sult and reuonable anorney's fees, aU u aforesaid. If a copy
hereof, verified by affidavit. shall have been filed In sald proceedlnp, It shall not be
necessary to file the orisinal u . warrant of attorney.
The authority pnted herein to confess judgment shall not be exhausted by
any exercise thereof. but shall continue, and may be exercised u aforesaid, from time to
time and at all times until payment in full of all the amounts due hereunder,
The Maker hereby waives and releues aU erron, defects and imperfections
of a procedural nature In any proceedlnp Instituted by the Payee hereunder, u well u aU
benefits that m1Jht aCcnle to the Maker by vinue of any present or future laWl exemptin,
the mongaged propeny, or any other propeny, real or personal, or any pan of the
proceeds arisln, from any sale of any such property, from anachment, levy or sale under
execution, or providlni for any stay of execution, exemption from civil proceu, or
extension of time for payment. The Maker agrees that any real estate that may be levied
upon punuant to any writ of execution Issued on any judgment obtained by virtue hereof,
may be sold, In whole or In pan, In any order desired by the Payee.
.2.
The Maker hereby waives presentment for payment, demand, notice of
demand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and
all other notices In connection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note, except for the notice of non-payment provided
for hereunder, and agrees that Its liability shall not be affected In any manner by any
Indulgence, extension of time, renewal, waiver or modification granted or consented to by
the Payee. The Maker consents to any and all extensions of time, renewals, waivers or
modifications that may be granted by the Payee with respect to the payment or other
provisions of this Note, and to the release of the coUateral or any part thereof, with or
without substitution.
The Payee shall not be deemed, by any act of omission or commission, to
have waived any of Its rights or remedies hereunder unless such waiver Is In writing and
signed by an authorized representative of the Payee, and then only to the extent specifically
set forth In said writing. A waiver of one event shall not be constrUed u continuing or as
a bar to or waiver of any right or remedy to 8 subsequent event.
The Maker Intends this to be a sealed Instrument and to be legally bound
hereby.
All Issues arising hereunder shall be governed by the laWl of the
Commonwealth of pennsy\vanla.
The terms "Note" and "Mongage" as used herein shall mean the same 8S
amended, modified or altered from time to time.
Thla obligation shall be legally binding upon and shall Inure to the Maker and
the Payee, and their respective hein, successors and uslgns.
IN WITNESS WHEREOP, the Maker has caused this Note to be executed by
III duly authorized general partners u of the 1st day of December, 1992.
ATTEST:
WOOD'S DRIVE ASSOCIATES
Wood's Drive, Inc.
(Assistant) Secretary
(SEAL)
By: .":>/-
President
(Assistant) Secretary
Commerce Drive, Inc.
BY:~J.-
I President
(SEAL)
31666
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MORTGAGE
nus MORTGAGE dated as of Ihe 3rd day of March, 1993, by and between
WOOD'S DRIVE ASSOCIATES a'Pennsylvanla general partnership having an office al 6570
Carlisle Pike, Mechanlcsburg, Cumberland County, Pennsylvania 17055 (the "Mortgagor")
AND
RESOLUTION TRUST CORPORATION, IN ITS CAPACITI' AS CONSERVATOR FOR
HOMESTEAD FEDERAL SAVINGS ASSOCIATION, SUCCESSOR IN INTEREST TO
HOMESTEAD SAVINGS ASSOCIATION, with offices at 120 South Union Street,
Middletown, Dauphin County, Pennsylvania 17057 (hereinafter the "Mortgagee").
AKital.
Mortgagor has executed and delivered to Mortgagee a note dated December
I, 1992 (the "Mortgage Note"), under which the Mortgagor is obUgaled to pay the
Mortgagee the anregate principal sum of One Hundred Ninety-two Thousand Eight
Hundred Thiny-lWo and 36/100 DoUan ($192,832.36), lawful money oi the United States
of America, with Interest thereon payable at the rates and times, in the manner and
according to the terms and conditions set forth In the Mongage Note, which Mortgage
Note Is Incorporated herein by reference.
Sporting Green Associates, a Pennsylvania general pannership, has executerl
and delivered to Mortgagee a note dated December I, 1992 (the "Sporting Grcen
Obligation") under which Sponing Green Associates Is obligated to pay the Mortgagee lhe
aggregate principal sum of One MUllon Seven Hundred Eighty-Six Thousand Nine Hundred
Slxty.Two and 58/100 DoUan ($1,786,962.58), lawful money of the United States of
America, with Interest thereon payable at the rates and time, In the manner and according
to the tenns and conditions set forth In the Sponing Green Obligation, which Sporting
Green Obligation is Incorporated herein by reference.
The Mortgage Note and the Sporting Green Obligation are collectively
referred to from time to time hereinafter as the "Note....
NOW THEREFORE, In consideration of and as security for the payment of
all sums payable under the lenns of the Notes and this Mortgage, according to their
respective tenns and conditions, and for pl!rfonnance of the agreements, conditions,
covenanlS, provisions and stipulations contained therein and herein, Mortgagor has
granted, conveyed, bargained, .old, allened, enfeoffed, released, confirmed and mortgaged,
and by these presents does hereby grant, convey, bargain, sell, allen, enfeoff, release,
confinn and mOil gage unto MOl1gagee, its succeSSOI1 and assigns, all those certain tracts
or parcels of land situate In Ihe Township of Sliver Spring, Cumberland County,
Pennsylvania, more particularly bounded and described In Exhibit "A" Bttached hereto and
by Ihls reference made a pan hereof.
e'oo~ 1121 lAtE 337
LXII/lilT "II"
MORTGAGE
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THIS MORTGAGE, dated as of the 3rd day of March, 1993, by and between
WOOD'S DRIVE ASSOCIATES, a Pennsylvania general parmershlp having an office at 6570
Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055 (the "Mortgagor")
AND
RESOLUTION TRUST CORPORATION, IN ITS CAPACITY AS CONSERVATOR FOR
HOMESTEAD FEDERAL SAVINGS ASSOCIATION, SUCCESSOR IN INTEREST TO
HOMESTEAD SAVINGS ASSOCIATION, with offices at 120 South Union Street,
Middletown, Dauphin County, Pennsylvania 17057 (hereinafter the "Mortgagee").
Redt'"
Mortgagor has executed and delivered to Mongagee a note dated December
1, 1992 (the "Mortgage Note"), under which the Mortgagor is obligated to pay the
Mongagee the aggregate principal sum of One Hundred Ninety-two Thousand Eight
Hundred Thlny-two and 36/100 Dollan ($192,832.36), lawful money of the United States
of America, with Interest thereon payable at the rates and times, In the manner and
according 10 the terms and conditions set forth In the Mongage Note, which Mortgage
Note is incorporated herein by reference.
Sporting Green Associates, a Pennsylvania general parmershlp, has executed
and delivered to Mortgagee a note dated December 1, 1992 (the "Sporting Green
Obligation") under which Sporting Green Associates 15 obligated to pay the Mortgagee the
aggregate principal sum of One MUlIon Seven Hundred Eighty-Six Thousand Nine Hundred
Sixty-Two and 58/100 Dollars ($1,786,962.58), lawful money of the United States of
America, with Interest thereon payable at the rates and time, In the manner and according
to the terms and conditions set forth In the Sporting Green Obligation, which Sporting
Green Obligation is incorporated herein by reference.
The Mortgage Note and the Sponlng Green Obligation are collectively
referred to from time to time hereinafter 85 the "Notes".
NOW THEREFORE, In consideration of and as security for the payment of
all sums payable under the terms of the Notes and this Mortgage, according to their
respective terms and conditions, and for penonnance of the agreements, conditions,
covenants, provisions and stipulations contained therein and herein, Mongagor has
granted, conveyed, bargained, sold, aliened, enfeoffed, released, con/inned and mortgaged,
and by these presents does hereby grant, convey, bargain, sell, alien, enfeoff, release,
confinn and mortgage unto Mortgagee, Its successors and assigns, ali those certain tracts
or parcels of land situate In the Township of Sliver Spring, Cumberland County,
Pennsylvania, more particularly bounded and described In ExhIbit "A" attached hereto and
by this reference made a pan hereof.
TOGETHER WITH all of the Mongago!'s right, title and interest now owned
or hereafter acquired In:
(1) all buildings and olher improvements erected or hereafter
erecled thereon; and
(2) all building malerials, fixtures, building machinery and building
equipment delivered on site to the real estate during the course of, or in
connection with, consttUction of, or reconsttUction of, or remodeling of any
buildings and improvementsi and
(3) any and all easements, rights of way, lenements, hereditaments
and appunenances belonging to the real estate or any pan thereof hereby
mortgaged or intended so to be, or in any way appertaining thereto, and all
streets, alleys, puuses, ways, water courses, and all elSl!ments and
covenants now existing or hereafter crealed for the benefit of the Mortgagor
or any subsequent owner or tenant of the mongaged real estate over ground
adjoining the mortgaged real estate and all rilhts to enforce the maintenance
thereof, and all other rights, liberties, and privileses of whatsoever kind or
character, and the revenlolll and remainders, Income, rents, Issues and
proftts arising therefrom, and all the estate, right, title, Interest, property,
possession, claim and demand whatsoever, at Ilw or In equity, of the
Mortgagor In and to the real estate or any part thereof.
(4) All proceeds of the conversion, wluntary or Involuntary, of any
of the foregoing Into cuh or liquidated claims, Including without limitation,
proceeds of Insurance and condemnation awards.
All of the above-mentioned land, buildings, Improvements, fixtures,
machinery, equipment, tenements, hereditaments and appunenances, and other property
Interests owned by Mortgagor Is hereinafter collectively referred to as the "Premises".
TO HAVE AND TO HOlD the Premises hereby conveyed or mentioned and
Intended so to be, unto Mortgagee, Its successors and assigns to Its own proper use and
behoof forever.
TRAcr NO. 1 IS UNDER AND SUBJECT to the lien and payment of a
mortgage In the oriJina1 principal amount of One Hundred Forry Thousand DoHan
(5140,000.00) liven by MortRBgor to Lawrence F. McVitty and Claire Cressman McVlny,
et al., and recorded In the Office of the Recorder of Deeds In and for Cumberland County,
Pennsylvania at Mortglge Book 922 Plge 325.
PROViDED ALWAYS, and this Instnunent Is executed upon the express
condition that, If Mortgagor pays to Mortgagee the prlnclpalsurn, the Interest thereon and
.2-
aU other sums payable by Mortgagor to Mortgagee as are secured hereby, in accordance
wilh the provisions of Ihe Notes and lhis Mortgage, at the times and in the manner
specified, without deduction, fraud or delay, and Mortgagor, perfo,nns and complies ~Ih
aU the agreements conditions, covenanlS, provisions and snpulanons contained Iherem,
then this Mortgag~ and Ihe eSlate hereby granted shaU cease and become void,
THIS MORTGAGE is executed and delivered subject to Ihe foUowing
covenanlS, conditions and agreemenls and Mortgagor covenants, warranl5 and agrees as
foUows:
(1) The Mortgagor has good, valid and marketable title 10 the
Premises. The Mortgagor has the right, full power and lawful authority 10
grant, convey, bargain, sell, aUen, enfeoff, release, confinn and mortgage the
same to the Mortgagee In the manner and fonn herein done. The Premises
are free and clear of all liens and encumbrances except those of reCord which
were previously disclosed In writing to the Mortgagee. The Mortgagor will
WlIT8J\t and defend the rights and title of Mortgagee to all of the Premises
against all claiJns.
(2) The Notes secured hereby shall evidence, and this Mortgage
shall be security for, the principal sum together with applicable Interest, COSlS
and fees. This Mortpge shall further be security for the performance of
Mortgagor of all asreements, condidolU, covenants, provisions and
undertaldnp in the Notes and this Mortgage.
(3) Prom time to time, until the indebtedness secured hereby is
fully repaid, Mortgagor shall: (a) pay and dlscharre, when and u the same
shall become due and payable, all tilles, usessments, sewer and water rents,
and any and all other charges, claims and liens lIIHIsed, levied, Imposed or
created, from time to time, upon the Premises or any pan thereof which shall
or might have priority In lien, payment or disnibudon to the debt secured
herebYi (b) pay allll'Ound rents reserved from the Premises and pay and
discharJe all mechanics' liens which may be filed against the Premises which
shall or might have priority in lien or payment 10 the debt secured hereby;
and (c) pay and discharge any documentary stamp or other tax, including
Interest and penalties thereon, If any, now or hereafter becoming payable on
the Notes.
(4) In the event Mortgagor neglects or refuses to pay any charges
mentioned herein, Mortgagee may do so, add the Call thereof to the total
princIpal sum secured hereby, and coUect the same as a part of sald total
principal sum, together with interest thereon at the nile provided herein.
.3.
(5) Mortgagor covenants and agrees not to create, nor permit 10
acaue upon all or any part of Ihe Premises, any debt, lien or charge which
woullbe prior to, on a parity with, or junior to the lien of this Mortgage,
without the prior written consent of Mortgagee.
(6) Mortgagor shall not suffer or permit the Premises, or any
portion of the Premises, to be wed by the public, as such, without restriction
or in such manner as might reasonably tend to impair Mortgagors title to the
Premises or any portion of the Premises, or in such manner as might
reasonably make possible a claim or claims of advene wage or advene
possession by the public, as such, or of implied dedication of the Premises or
any portion of the Premises.
(7) The occUlTl!nce of anyone or more of the foUowing events
shall, at the option of Mortgagee, constitute an event of default hereunder:
Ca) The failure of Mortgagor to pay any Installment
of principal or interest on the Notes to Mortgagee, after the
same becomes due and payable, subject to written notice and
grace periods PI'Ovided for In the Notes.
(b) The failure of Mortgagor to pay any other charge,
premium or lum required to be paid In the Notes or In this
Mortgage, within fifteen (15) days after the same becomes due
and payable.
(c) The failure of Mortgagor to perfonn or obselVe
other agreements in the Notes or in this Mortgage within
fifteen (15) days after the same is to be penonned or
obsenedj provided, however, that II Mortgagor has proceeded
and Is rna1dnr a good faith effort to proceed to cure said
default, and hu provided written notice thereof to Mortgagee,
within the said fifteen (15) day period, which describes In
detail the procedure or action being taken and the reasonable
time period required to cure said default, the provisions hereof
.hall be delayed while Mortgagor attempts to cure said default.
Cd) Any asslgrunent for the benefit of Mortgallors
cred.lton, or other proceedings intended to liquidate or
rehabilitate Mortgagors estates, or Mortgagors becoming
Insolvent within the meaning of the federal bankruptcy law.
Ce) The occUlTl!nce of an event of default as defined
in the Notes.
... .
<0 The tranSfer, conveyance or other disposition of
title to or equhable inlerest in the Premises or any portion
thereof under and subject to this Mortgage, except with the
expressed written consent of the Mortgagee. A tranSfer of any
Interest In the Premises by Mortgagor under and subject to this
Mortgage, without the expressed written consent of Mortgagee
shall be deemed to violate this prohibition against tranSfer.
The Mortgagee agrees to releue all or any part of the Premises
from the lien of this Mortgage upon the payment of the
arnounu set forth In Paragraph 19.
(g) The OCCWll!nce of an Event of Default under any
subordinate mortgage, security agreement or similar document
creating a lien.
(8) If one or more of the events of default referred to In paragraph
(7) hereof shall occur, the Mortgagee may declare a default hereunder. In
which event:
(a) The entire unpaid balance of the prindpal sum
and all other swns secured by this Mortp.e, together with
unpaid Interest thereon, shall become Immediately due and
payable without funher notice or demand; and
(b) Mortp.ee may forthwith Institute an action of
rnortpp foreclosure, or take such other action, u the law
may allow, at law or In equity, for the enforcement hereof and
realization on the monpge security or any other security
which It herein or elsewhere provided for, and proceed thereon
to final judgment and execution thereon for the entire unpaid
balance of the princlpalsurn advanced, with Interest at the rate
provided In the Notes, and all other SW1ll secured by this
Mort.age, all costs of suit, Interest u provided In the Notes on
any judgment obtained by Mortgagee from and after the date
of any Sherlft's Sale of the Premises (which may be sold In one
parcel or In such parcels, manner or otherwise as Mortgagee
shall elect) until actual payment Is made by the Sheriff of the
full amount due Mortgagee, and reuonable attorneys' fees for
collection.
(c) Mortgagee or hs agent may forthwith enter into
pollesslon of the Premises, with or without legal action, by
force If necessary, and collect rentals and enforce leases or
other agreements affecting Ihe Premises, but without being
.5.
deemed to have affinned such leases or agreements, coUett all
rents and profits therefrom, and pay aU COsls of coUection and
administration expense, taxes, waler and sewer rents, charges
and claims, Insurance premiums, all other carrying charges
(Including but nol limited to agent's compensation and fees
and costs of counsel and recelven), expenses of mainlenr nee,
repair or restoration of the Premises and the prindptll and
Interest hereby secured, In such order and amounts as
Mortgagee In Mortgagee's discretion may elect. Mortgagee or
Its agent may have a receiver appointed to enter Into
possession of the premises, coUect the rents and profits
therefrom, and apply the same as the court may direct.
Mortgagee shall be liable to account only for rents and profits
actually received by Mongagee. For such purposes Mortgagor
hereby iJTevocably authorizes and empowers any anomey of
any court of record to appear for Mortgagor and on its behalf
In any action of ejectment and to confess judgment therein
against Mongagor and in favor of the Mortgagee for possession
of the Premises, whereupon a writ may forthwith be Iuued for
the immediate possession of the PnmiJes, and for reuonable
anorneys' fees, If necessary, without any prior writ or
proceedinJ whatsoever; and for so doinJ this Mortgage or a
copy hereof verified by affidavit shall be a sufficient warrant.
(d) The authority granted herein to appear for
Mortgagor and on its beha1f and to confess judgment shall not
be exhausted by any exercise thereof, but shall continue, and
may be exercised as aforesaid, from time to time, and at all
times until payment of the amounts secured hereby and
perfonnance of the obligations hereunder.
(e) Mortgagee shall have the right to set off all or
any part of any amount due by Mortgagor to Mortgagee under
the Notes, this Mongage or otherwise, apinst any
Indebtedness, liabilities or obligations owing by Mortgagee for
any reuon and In any capacity to Mortgagor, Including any
obligation to d1sbune to Mortgagor or ill designee any funds
or other propeny on deposit with or otherwise In the
possession, conttol or custody of Mortgagee.
(9) No right or remedy herein conferred upun or reserved to the
Mortgagee Is intended to be exclusive of any other right or remedy, but each
aha1\ be cumulative, concurrent and In addition to every other right or
remedy herein given or now or hereafter existing at law or In equity or by
.6.
statute. In order to entitle the Mongagee to exe~ise Ib"Y ri~ht or remedy
reserved to It herein. It shall not be necessBIY to give any !."lnce, other than
such notice as may be herein expressly required.
(10) No waiver of any event of default hereunder, whether ::)1 the
Mongagor or the Mongagee, shall extend to or affect any subsequent event
of default or impair any rights or remedies consequent Ihereon. No delay or
omission of the Mongagee to exercise any right or remedy accruing upon any
event of default shall impair any such right or remedy or shall be construed
to be a waiver of any right or remedy given hereunder, which rights and
remedies may be exercised as often as may be deemed expedient by the
Mongagee.
(11) If Mongagor should fall to pay real estate taxes or ofher taxes,
assessments, water and sewer rents, charges and c1ainu, swn& due under any
prior lien or Insurance premiums, or fail to complete construction of any
Improvements or make necessary repairs, or pennlt waste, or fail to cure any
default under any prior or subordinate lien, Mongagee, at Its election and
without notice to Mortgagor, shall have the right to make any payment or
expenditure and to take any action which Mortgagor should have made or
taken, or which Mongagee deems advisable to protect the sec:wity of thiJ
Mongap or the Premises, without prejudice to any of Mortgagee's rights or
remedies available hereunder or otherwise, at law or In equlty. All such
sums, as well as costs, advanced by Mongagee punuant to thiJ Mongage
shall be due Immediately from Mongagor to Mortgagee, shall be secured
hereby and the lien thereof shall relate back to the date of thiJ Mortgase,
and shall bear Interest from the date of payment by Mongagee until the date
of repayment at a rate equal to the lesser of (I) a rate five percent (5%)
above the rate specified In the Note or (U) the highest rate permined by
applicable law.
(12) In the event that all or any portion of the Premises is
condemned by any lawful authority for any public or quasl.pubUc use or
purpose or sold under threat thereof, all proceeds shall be appUed toward the
prepayment of the amounts secured hereby. Any excess proceeds shall be
paid to Mortgagor. In the event that all or a significant portion of the
Premises Is so condemned or sold so as to render the Premises unsuitable for
Mortgagor's continued use, Mongagor shall have the right to prepay the
remain!nl amounts secured hereby In full, including any premium set forth
In the Notes. No senlement for Ihe damages sustained thereby shall be made
by Mongagor without Mortgagee's prior wrinen approval thereof. If the
amount of an lnltlal award of damages for the condemnation Is insufficient
to pay the amounts secured hereby In full, Mortgagee shall have the right to
file an appeal or such other legal proceedings as legal counsel may advise to
.7.
be appropriate under the circumstances in the name of Mortgagor or of
Mortgagee (for which action Mortgagee or such cowuel II It chooses is
hereby irrevocably appoinled attorney.in.fact for Mortgagor), and 10
prosecute same to final conclU!ion or otherwise dispose thereof, in which
event the expenses of the appeal or other appropriate legal proceedings,
including but not limited to cowuel fees, shall be fint paid out of the
proceeds, and no credit shall be given on account of the amounts secured
he~by other than a credit for the amount, If any, whereby the fina1 proceeds
exceed all such expenses. Nothing in this covenant or elsewhere in this
Mortgaae shall limit rights otherwise available at law to Mortgagee,
including but ntlt 1lmited 10 righll to intervene II parties to any
condemnation proceeding. Any and all compensation, awards, damages,
claims, righll of action and proceeds hereunder are hereby IIsigned by the
Mortgagor to the Mortpgee, to be applied II herein provided. The
Mortgaaor agrees to execule any wignment ap-eements that the'Mortgaaee
may require in funherance thereof.
(13) (a) Monpgor hereby WlUT81l11 and covenanll that,
to the best of ill knowledp:
(I) The present use of the PremIses Is,
and any c:umntly contemplated future use of the
Premises wl1l be in substantial compHanee with
all applicable federal and state environmental
laws and regulations and no environmental
liability exists on or in connection with the
Premisesj
(U) There are no hazardous substances
located on the PremIses (except II dlsdllled in
wridna to Mortgagee), and any such hazardous
substances have been properly tJ'8lllponed,
stored and/or disposed of at other locationsj
(ill) Mongagor has or wl1l obtain aU
permits or authorizations under environmental
laws or regulations necessary to cany on their
business(es), has or will me all required
notifications and plans and has or wl1l have such
Information and plans available II required
under envlronmentailaws or regulations, and are
in compUance with all appUcable environmental
laws or regulations, including but not UmIted to
deed acknowledgement required by the
.8.
threatened release of any hazardous substance
on the Premises; and
(Ix) Mongagor shall notify Mongagee
and their successors in interest of any notice they
give to or receive from any entity relating to any
act or omission that could give rise to Uability
under any environmental law or regulation.
(14) AU notices required or provided for herein shall be in writing
and sent by certified mall return receipt requested. Subject to change by
such notice from the party to be charged with such notice, nodces shall be
addressed as follows:
TO MORTGAGOR: Wood's Drive Associates
6570 Carlisle Pike
Mechanlcsburg, PA 17055
TO MORTGAGEE: Homestead Pederal Savinp Aslociation
120 South Union Street
Middletown, PA 17057
(15) The tt!111\l "Note" and "Mongage" shall mean the same as
amended, modified or altered from time to time.
(16) This Monlale cannot be changed or amended except by
ap-eement in wrinn, signed by the party against whom enforcement of the
change Is sought.
(17) This Mongage shall be loverned by and construed according
to the substantive laws of the Commonwealth of Pennsylvania.
(18) Whenever used in this Mongage, unless the context clearly
Indlcates a contrary intent:
(a) The word "Mongagor" shall mean the persons
who uecute this Mongage, any subsequent owner (beneficially
or of record) of the Premises and their respective heirs,
executors, administrators, successors and assigns:
(b) The word "Mongagee" shall mean Homestead
Pederal Savings Association, 120 South Union Street,
Middletown, Pennsylvania, lIS assignee or any subsequent
holder of this Mongagej
.10.
(c)
corporation,
assoclatlonj
The word "penon" shall mean Individual,
pannenhlp, joint venture or wUncorporaled
(d)
The use of any gender shall Include all genden;
(e) The singular number shall Include the plural and
the singular as the context may require;
(0 All agreemen:~, conditions, covenants, provisions,
stipulations, WarTants of anomey, authorizations, waiven,
releaseJ, options, undertakings, rights and benefit made or
given by Mortgallor shall bind and affect all penons who are
defined as "Mortllagor" as fully as though all of them were
specifically named herein wherever the word "Mortgagol" II
used.
(19) Upon the sale of all or any part of the premises by the
Mortgagor, the Mortgagee aJl'ees to release any part of the Premises from
the lien of thla Mortgage upon the payment to Mortpgee at settlement on
the sale of all or any part of the Premlaes of Twenty-five Thousand Dollan
($25,000.00) per acre, rounded to the nearest tenth of an acre. Sald
payments shall be applied to the principal balance of the Mortgage Note and
shall be paid at the Settlement of the conveyance of all or pan of the
Premises. Mortgagee agrees that this Mortgage .hall be satllfied and an
appropriate .atisfaction document shall be promptly executed by the
appropriate officers of the Mortgagee and filed in the Office of the Recorder
of Deeds In and for Cumberland County, Pennsylvania upon the payment In
full of the principal and accrued IntereJt due on the Mortgage Note.
IN WITNESS WHEREOf, the Mortgagor has caused this Mortgale to be
executed on hs behalf by hs duly aUlhorized general partners as of the day and year fint
above mentloned.
WITNESS:
MORTGAGOR:
WOOD'S DRIVE ASSOCIATES
By: Wood's Drive, Inc. . General Partner
B~/()~ (il_
I President
By: Commerce Drive, Inc. . General Partner
By: & ..1'--.
pn1ldent
.11-
COMMONWEALTH OF PENNSYLVA.NIA)
COUNTY OP d~ ~
55:
On this the It> #'day of ~ . 1993, before me a Notary Public, the
undersIgned officer, personally appeared Joseph D. Snyder who acknowledged himself 10
be the President of Wood's Drive, Inc. and Commerce Drive, Inc., pelUUylvanla
corporations, which are the general partners of Wood'. Drive AssocIates and thaI he as
such PresIdent, being authorized to do 50, executed Ihe foregoing Mortgage for Ihe
purposes thereIn contained by signing the name of the corporation by himself as President.
(SEAL)
NOTARIAL SEAL
NAINA J SANGHVl. NolIIV PoAlIoC
City 01 Hamlllu,;. Dau~n County
M' Corn""l\tlon E. fl' -. II H. 'M"
I HEREBY CERTIFY that the precise address of the Mortgagee and person
entitled to Interest on thiJ Mortgage Is:
Homestead Pederal Savings Association
120 South Union Street
Middletown, PA 17057
7.~
COMMONWEALTH OP PENNSYLVANIA)
) 55:
COUNTY OF CUMBERLAND )
Recorded In the Office for Recording of Deed. In and for Dauphin County In
Mortgage Book ~ Volume --' Page _' .
WITNESS my hand and seal of Office thl. _ day of
,1993.
Recorder
EXHIBIT "A"
Tract No.1
ALL THAT CERTAIN piece or parcel oHand situate In Silver Spring Township,
Cumberland County, pennsylvania, being more particularly bounded and described as
follows:
BEGINNING at a point on the southern right-of.way line of U.S. Route # II,
said point belni located and referenced westwardly a distance of 1423,feet from Village
Roadj thence South 21 degrees 01 minute 30 seconds East, a distance of 257.21 feet to a
point; thence South 28 degrees 03 minutes 30 seconds West, a distance of 50.84 feet to
a point; thence South 73 degrees 56 minutes 30 seconds West, a distance of 469,81 feel
to a point; thence South 33 degrees 21 minutes 30 seconds East, a distance of 380.17 feet
to a point; thence South 1 depee 54 minutes 30 seconds West, a distance of 118.00 feet
to a point; thence North 82 degrees 04 minutes East, a distance of 349.89 feet to a polntj
thence South 5 dep-ea 05 minutes 53 seconds East, a distance of 285.13 feet to a pointj
Ihence North 84 degrees 16 minutes 32 seconds East, a distance of 498.58 feet to a point;
thence alona land now or late of Vance McCormick South 13 degrees 02 minutes East, a
distance of 50.48 feet to a point; thence alona the I8J1\e South 84 degrees 16 minutes 34
seconds West, a distance of 505.53 feet to a point; thence alolll the same South 5 degrees
05 minutes 53 seconds East, a distance of 1001.29 feet to a point; thence alona land now
or late of Eppley North 63 dep-ees 04 minutes 29 seconds West a distance of 561.14 feet
to a point; thence alolll the same South 46 degrees 48 minutes 11 seconds West, a
distance of 1021.83 feet to a point; thence alolll the I8J1\e North 47 delJ'ftl13 minute.
10 seconds West, a distance of 1048.54 feet to a point; thence alolll the same Soulh 42
degrees 44 minutes 25 seconds West, a distance of 168.03 feet to a polntj thence along
land now or late of the Stewan Estate North 44 degrees 32 minutes 36 seconds West, a
distance of 1101.09 feet to a point; thence alolllland now or late of Cressman North 66
degree. 58 minutes East, a distance of 1719.0 feet to a point; thence along the .ame North
70 degrees 13 minutes East, a distance of 589.50 feet to a point; thence along the same
North 33 degrees 17 minutes West, a dislance of 212.36 feet 10 a point on the southern
right-of.way line of U.S. Route lII11j thence alolll the same on the arc of a curve curving
10 the right havinJ a l1IdiUl of 3819.80 feet a distance of 193.95 feet to a point of
tangency; thence alolll the lOuthern right.of.way Une of U.S. Route # 1 I North 75 degrees
44 minutes 30 seconds East, a distance of 420.0 feet to a point the place of BEGINNING.
Said tl1Ict contalning87.19 aerea.
Tl1Ict No.2
Alllhat certain piece or parcel of land situate In Silver Spring Township
Cumberland County, Pennsylvania, more panlcularly bound and described u follows, I~
wit:
BEGINNING III polnlln LeBislltive Roule No. 34 known as "Carlisle Pi~e"
alline of lands now or fonnerly of James A. Potteiger and Emma F. Potteiger, his WIfe;
Ihence alolli sald lands of Potteiger South 23 degrees 15 mlnUles East, a dislance of 212
feel 10 a polnl' thence along lands now or fonnerly of Della J. Bergner, South 70 degrees
15 minUles W~SI, 8 dislance of 425 feel 10 8 polnl; thence continuing along said lands now
or fonnerly of Bergner, South 67 degrees Wesl I dislance of 50 feel 10 a polnl; Ihence
along lands now or fonnerly of Paul L. Cressman and Lenora C. Cressman, his wife, North
23 degrees Wesl, 8 dislance of 208 feel 10 8 polnl In said Legislative Roule No. 34,
"Carlisle Pike" linl mentioned above; thence along a line In said LeBislauve Roule No, 34
"Carlisle Pike", North 67 degrees Easl, I dislance of 50 feet 10 I polnl In the same; thence
continuing In lald LeBislluve Roule No. 34, "Carlisle Pike", along 8 cwve 10 Ihe righl
having a radius of 3,819.8 feel, an an: distance of 425 feet 10 8 point In the same alline
of lands now or fonnerly of James A. Potteiger and Emma P. Potteiger, his wife, Ihe polnl
and pi Ice of BEGINNING.
Containlni Ipproximalely 2.28 aaes,
TRACfS NOS. 1 AND 2 BEING the same premises which Raben D. Hutton
and Dorothy M. Hutton, his wife, by their Deed dated August 29, 1988 and recorded
Seplember 1, 1988 In the Office of the Recorder of Deeds In and for Cumberland County,
In Deed Book N, Volume 33, Page 1050, granled and conveyed unlO Wood's Drive
Associates.
Tract No. :I
ALL lHAT CERTAIN pan:el or tract of real estate situate In Silver Spring
Township, Cumberland County, Pennsylvania, beIni more particularly bounded and
described as follows:
BEGINNING at a point on the southern lept right-of.way line of Carlisle Pike
(L.R. 34) at the northwest comer of Lot No.2 on the hereinafter described Subdivision
Plan; thence alolll the weslern line of said Lot No.2 South 23 degrees 00 seconds East 8
dislance of 157,68 feet to the northern line of lands now or fonnerly of Roben D. Hutton
and Dorothy M. Hutton, his wife; thence alolli the northern line of said lands Soulh 67
degrees 00 minUles West I distance of 568.06 feet to the eastern line of lands now or
fonnerly of Alexander Slewan; thence along the eaSlern line of said lands North 44 degrees
17 minules West a distance of 170.90 feet to 8 point on the southern legal righl.of.way
line of Carlisle Pike (L.R. 34); thence alon, the southern lepl righloOf.wlY line of Carlisle
Pike (L.R. 34) North 67 dep-ees 08 minutes 30 seconds East a dislance of 630,10 feel 10
a point It the nonhwest comer of Lot No.2 on the hereinafter described Subdivision Plan,
Ihe polnl and pllce of BEGINNING.
Containing 2.18 laes.
BEING Lot No.1, Final Subdivision Plan for Paul L. Cressman. Jr., et al,
dated November 25, 1975, revised Feb~ary 24, 1976, recorded in the Office of the
Recorder of Deeds of Cumberland County U\ plan Bock 28, Page 41.
Tract No.4
ALL THAT CERTAIN partel or tract of real estate situate in SUver Spring
Township, cumberland County, pennsylvania, being more particularly bounded and
described as foUows:
BEGINNING at a point on the southern legal right.of-way Une of Carlisle Pike
(L.R. 34) at the northeast comer of Lot No. 2 on the hereinafter described Final
Subdivision Planj thence along the eastern Une of said Lot No. 2 South 23 degrees 00
seconds East a distance of 146.~ feet to a point on the northern Une of lands now or
fonnerly of Roben D. Hunon and Dorothy M. Hunon, his wifei thence &Jon, the northern
Une of said land North 67 depes 00 minutes East a distance of 800.24 feet to a point on
the southwest comer of lands noW or formerly of Frederick R. Mummai thence aiong the
western Une of said land North 23 degrees 00 seconds West a distance of 145.00 feet to
a point on the southern legal right-of.way Une of Carlisle Pike (L.R. 34)j thence along the
southern legal right-of-way of Carlisle Pike (loR. 34) South 67 degrees 08 minutes 30
seconds West a distance of 800.24 feet to a point at the northeast comer of Lot No.2 on
the hereinafter described Final Subdivision Plan, the point and place of BEGINNING.
CONTAINING 2,68 aeres.
BEING Lot No.3, Final Subdivision Plan for Paul L. Cressman, Jr., et ai,
dated November 25, 1975, revised February 24, 1976, recorded In the Office of the
Recorder of Deeds of Cumberland County in Plan Book 28, Page 41.
TRACTS NOS. 3 AND 4 BEING the same premises which Lawrence F. McViny
and Claire Cressman McViny, his wife, Earl N. Stauffer and Hazel Cressman Stauffer, his
wife, and Paul L. Cressman. Jr. and Thelma M. Cressman, his wife, by their Deed dated
August 29, 1988 and recorded November 9, 1988 in the Office of the Recorder of Deeds
In and for cumberland County in Deed Book Q, Volume 33, Page 833 granted and
conveyed unto Wood's Drive Associates.
LESS AND EXCEPT from Tracts 1, 2, 3 and 4 all those cenain tracts or
partels of land situate In SUver Spring Township, Cumberland County, Pennsylvania
previously conveyed out of Tracu 1, 2, 3 and 4 by Wood's Drive Assodates described and
designated as foUows:
(i) Lot No.3 on a Umlted Final Subdivision Plan of 87.428 acres
prepared for Wood's Drive Associates recorded In Plan Book 61, Page 60
more particularly described in a Deed by and between Wood's Drive
Associates as Grantor and Cumberland Valley Associates as Grantee dated
August 16, 1990 and recorded September 14, 1990 In the Office of the
Recorder of Deeds in and for Cumberland County in Deed Book T, Volume
34, at Page 981.
(ii) Lot 2A on the Final Umlted Resubdlvision Plan for Wood's
Drive Associates, II described In a Deed dated September 25, 1992 and
recorded September 25, 1992 by and between Wood's Drive Associates, a
Pennsylvania general pannenhip, and Pennsylvania Power. Ught Company,
a Pennsylvania corporation, recorded In the Office of the Recorder of Deeds
In and for Cumberland County In Deed Book X. Volume 35, Page 138.
(2)
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UetritburQ. PA 11'08.1140
11111233.113'
Altomty. tor AlIIntlft
WOOD'S DRIVE ASSOCIATES.
a Pennsylvania General Partnarahlp
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY.
PENNSYLVANIA
Plaintiff
NO. 96-3164
v.
: ACTION FOR DECLARATORY JUDGMENT
NATIONAL LOAN INVESTORS. L.P..
JURY TRIAL DEMANDED
Dafendant
fRAEClPE FOR JURY TRIAL
TO THE PROTHONOTARY:
Kindly mark the docket In tha abova-referenced metter to reflect that the Plaintiff
hareby electa to demand a trial by jury In connection with Plaintiff's claims sat forth In Its
Complaint.
f\
\
By:
Jck F. url y. J
J ssa R. Ruhl
P\O. BOll 1146
Harrisburg. PA 17108.1146
(717) 233.6731
Attornaya for Plaintiff
.3HO
CERTIFICATE OF SERVICE
I haraby certify that on Juna 16. 1996. a trua and corract copy of the foregoing
'Praecipe for Jury Trial' wea served by United Stetes mell. first class postege prepaid. upon
the following:
National Loan Investors. L,P.
3030N.W. Expressway, Suite 1313
Oklahoma City. OK 7311 2
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11171 233,173'
A"~ tor PIlMtlft
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 96-3164
: ACTION FOR DECLARATORY JUDGMENT
WOOD'S DRIVE ASSOCIATES.
a Pennsylvania Ganeral Partnarshlp
v,
NATIONAL LOAN INVESTORS. L.P..
JURY TRIAL DEMANDED
Dafendant
AFFIDAVIT OF SERVICE
Jesse R. Ruhl deposes and says as follows:
1. That he is the attorney for Plaintiff Wood's Drive Associates; and
2. That on Thursday. June 16. 1996, he sarved the Defendant with a true
and correct copy of the Complaint filad In this matter by certified mall. return receipt
requestad.
AND FURTHER DEPONENT SAYETH NOT.
RHOADS &. tNON
~I I I)
By:
,'Je ". Ru I'
Ooa South Market Square
pJb, BOll 1146
H~rrlsburg, PA 17106.1146
(7171233-6731
fInl
Attorneys for Plaintiff
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8, Thereafter, at tha direction of Knuteson, Wood's contacted Dafendent
to obtain the proper amount due and remaining to be paid on tha Mortgega Note.
9. Speclflcelly, on or about December 16, 1994, Wood's and Dafendent
confirmed the amount of outstanding obligation due on the Mortgage NDte,
10. Thereafter, Wood's peld in full and completely satisfied the amounts due
and outstanding on the Mortgage Note,
11. With particular relevence to the current Complaint, tha Mortgage Nota
wes secured by a Mortgage upon a certain parcel of real property located In Sliver Spring
Township, Cumberland County, Pennsylvenia, provided by Wood's as Mortgagor to RTC as
Mortgagee. A true and correct copy of the Mortgage Ie attached hereto at Ellhlblt "B" and
Incorporated hareln by reference,
12, During the conversation which occurred on December 16, 1994 between
Wood's and Defendant regarding the amount of tha outstanding balance due on tha Mortgage
Note, Defendent agreed that the proparty which was secured by the Mortgege Note would be
released and the appropriate Mortgage satisfaction documents flied with the Court upon
Wood's payment of the balance dua,
.3.
16. Despite the fact that Wood's continues to request that Defendant file the
appropriate mortgage satisfaction documents, Defendant rafusas to file the same or to relaase
the property from the Mortgage.
19, Accordingly, a dispute currently elllsts between Wood's and Defendant
regarding the refusal of Defendant to releasa the mortgeged property,
COUNTI-DECLARATORYJUPGM~NT
WHEREFORE. Plaintiff Wood's Drive Associates requests that the Court enter
the following judgment:
a. Declaring that Plaintiff Wood's Drive Associates has properly
satisfied all obligations due pursuant to the Mortgage Note;
b, Declaring that the Mortgage, as a matter of law, requires that
Defendant release the mortgaged property;
o. Declaring that the mortgaged proparty should be released from
the Mortgage and entering an approprlata order to that effect:
d. Declaring that Defendant NLl/LF II, L.P. be required to reimburse
Plaintiff the reasoneble costs and attorneys' fees associated with
bringing this action; and
e. Granting such further relief as the Court may deem appropriate,
~I - FAIJ-URE TO COMPLY WITH STATUTE
20. The foragolng everments are Incorporated herein by reference.
.6-
{Gf1
tdORTuAGE NOTE
$192,832.36
December 1, 1992
POR VALUE RECEIVED, WOOD'S DRIVE ASSOCIATES, a Pennsylvania
general pannership having an office at 6570 Carlisle Pike, Mechanlcsburg, Cumberland
County, Pennsylvania 17055 (hereinafter referred to as the "Maker") does hereby,
irrevocably and unconditionally promise to poy to the order of RESOLUTION TRUST
CORPORATION, IN ITS CAPACIlY AS CONSERVATOR FOR HOMESTEAD FEDERAL
SAVINGS ASSOCIATION, SUCCESSOR IN INTEREST TO HOMESTEAD SAVINGS
ASSOCIATION (hereinafter referred to as the "Payee") the principallum of ONE HUNDRED
NINE1Y.1WO THOUSAND EIGHT HUNDRED THIR1Y.1WO AN!> 36/100 DOu.ARS
($192,832.36) with interest from the date of this Note at the rate of seven and one.half
percent (711a%). per annum on the unpald principal balance until the principallum Is paid
in full under the terms hereof. '
Principal and interest lhall be payable In lawful money of the United States
of America, to Payee at the offices of Homestead Federal Savlnp Anedation at 120 South
Union Street, Middletown, pennsylvania 17057 or such other place u the holder of this
Note may deslJrllte, in the foUowing manner:
Interest shall be pald on the tint day of each month durinl the tmn of the
Note on the outstandlna principal balance during the Immediately preceding month. The
initial monthly interest payment shall be due on the lint day of January, 1993.
This Note Is secured by a Mongage (the "Mongap") of even date herewith
upon the property (the ''Property'') described In sald Mongage located In SUver Spring
Township. County of Cumberland, Pennsylvania. given by the Maker, u mongagor. The
provisions of the Mongage are Incorporated herein by reference.
Upon the conveyance of any or all of the Propeny, Maker shall make a
payment of the principal amount of this Note equal to 1WENlY.FIVE mOUSAND
DOlJ..ARS ($25,000.00) muldpUed by the number of acres of the Property, rounded to the
nearest tenth of an aae, beini conveyed. Said principal payments shall be pald at the
settlement on the conveyance of all or any pan of the Property.
~ the entire unpald princlpallurn, plus any and all
accrued interest on the unpaid principal surn, and any other amounts due to Payee
hereunder shall be pald In full on December 31,1994.
Maken may prepay the principal balance hereof, or any pornon thereof, at
any time without penalty.
If the Maker shan faU to observe or perform any of the terms, agreementl,
covenants and conditions of the Maker contained herein or the Mongage. the Payee In Itl
discretion, but without any duty to do 10, and without waiving any default, may ~rfonn
any of such terms, agreements. covenants and conditions, In whole or In pan, and any
money advanced 01 expended by the Payee in or toward the fulfillment of luch terms,
EXI!I BIT "A"
agreements covenants and conditions shall be due on demand and shall become a pan of
and be add~ to the indebtedness due under this Note, with interest to be paid thereon at
the then c:urrent rate provided herein from the date of the respective advance or
expenditure.
In the event of any default in payment of any installment of principal or
interest under this Note for a period of fifteen (15) days after the same shall have become
due and payable, or if an event of default, as described in the Mortgage, shall occur, an
event of default shall occur hereunder. If an event of default shall occur hereunder, the
principal amount outstanding on this Note, together with said interest thereon, may, at the
option of the Payee, become immediately due and payable with the effect provided herein
and in the Mortgage. In such case, the Payee may also recover all costs of suit and other
expenses in cOMection therewith, together with reasonable anorney's fees, but not less
than 11u'ee Thousand Dollars ($3,000.00), together with interest on any judgment obtained
by the Payee at the then c:urrent rate provided herein, includlng interest .at that nte from
and after the date of any sheri.fl's sale until actual payment Is made by the Sheriff to the
Payee of the full amount.
In the event of any default of required payment hereunder, interest shall
continue to accrue on the unpaid principal balance at the c:urrent nte provided for herein.
Such interest shall continue to accrue despite any lepl montoriwn on payment or any
delay in payment ordered or pennined by any court wumlna jurisdiction.
The Maker doel hereby irrevocably authorize and empower any anorney of
any court of record in the Commonwealth of pennsy\vanla or elsewhere, in cue of an
event of uncured default hereunder, to appear for the Maker and on Its behalf and to
confest judpnent against the Maker in favor of the Payee, with or without declaration
filed, for the unpaid principal balance hereof, together with all amounts for which the
Maker may be liable to the Payee hereunder, including, but not llmlted to, unpaid Interest,
costs and other upenseI of lult and rusonable anomeYl fees, all u aforeaald. If a copy
hereof, verified by affidavit, shall have been filed in laid proceedings, It shall not be
necessary to file the orlpnal as a warrant of attorney.
The authority IfIIlted herein to confess judgment shall not be exhausted by
any exercise thereof, but shall continue, and may be exerclsed as aforesaid, from time to
time and at all times until payment in full of all the amounts due hereunder.
The Maker hereby waives and releases all elTOn, defects and Imperfections
of a procedural nature In any proceedings instituted by the Payee hereunder, as well as all
benefits that mllht accrue to the Maker by virtue of any present or future laWl exempting
the mortgaged propeny, or any other propeny, real or penonal, or any part of the
proceeds winl from any sale of any such property, from attachment, levy or sale under
execution, or provldlng for any stay of execution, exemption from civil procesl, or
extension of time for payment. The Maker agrees that any real estate that may be levled
upon pW'luant to any writ of execution Issued on any Judgment obtained by virtue hereof,
may be sold, in whole or in part, in any order desired by the Payee.
.2.
The Maker hereby walves presennnent for payment, demand, notice of
demand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and
all other notices In cOMection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note, except for the notice of non-payment provided
for hereunder, and agrees that Its liability shall not be affected In any manner by any
indulgence, extension of time, renewal, waiver or modification granted or consented to by
the Payee. The Maker consents to any and all extensions of time, renewals, waivers or
modifications that may be granted by the Payee with respect to the payment or other
provisions of this Note, and to the release of the collateral or any part thereof, with or
without substitution.
The Payee shall not be deemed, by any act of omission or commission, to
have waived any of Its rights or remedies hereunder unless such waiver is In writing and
signed by an authorized representative of the Payee, and then only to the extent specifically
set forth In said writing. A waiver of one event shall not be construed as continuing or as
a bar to or waiver of any right or remedy to a subsequent event.
The Maker Intends this to be a sealed Instrument and to be legally bound
hereby.
All issues arising hereunder shall be governed by the laws of the
Commonwealth of pennsylvania.
The terms "Note" and "Mortpge" as used herein shall mean the same as
amended, modified or altered from time to time.
Th1a obUSltion shall be leplly blndina upon and shall Inure to the Maker and
the Payee, and their respective heirs, successors and asslans.
IN WITNESS WHEREOP, the Maker tw caused this Note to be executed by
Its duly authorized general partners as of the 1st day of December, 1992.
ArrEST:
WOOD'S DRIVE ASSOCIATES
Wood's Drive, Inc.
(Assistant) Seaetary
(SEAL)
By: ::>/ -
President
(Assistant) Seaetary
Commerce Drive, lnc.
BY:<;/ .-
I President
(SEAL)
31666
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MORTGAGE
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TIllS MORTGAGE, dated as of the 3rd day of March, 1993, by and between
WOOD'S DRIVE ASSOCIATES a Pennsylvania general partnership having an office at 6570
Carlisle Pike. Mechanlcsburg, Cumberland County, Pennsylvania 17055 (the "Mol1gagor")
AND
RESOLUTION TRUST CORPORATION, IN ITS CAPACI1Y AS CONSERVATOR FOR
HOMESTEAD FEDERAL SAVINGS ASSOCIATION, SUCCESSOR IN INTEREST TO
HOMESTEAD SAVINGS ASSOCIATION, with offices at 120 South Union Street,
Middletown, Dauphin County, Pennsylvania 17057 (hereinafter the "Mortgagee").
Rfdt.l.
Mortgagor has executed and delivered to MOl1gagee a note dated December
I, 1992 (the "Mortgage Note"), under which the Mortgagor is obligated to pay the
Mortgagee the agregate principal IWIl of One Hundred Ninety-two Thousand Eight
Hundred Thirty-two and 36/100 Dollars ($192,832.36), lawful money of the United States
of America, with interest thereon payable at the rates and times, in the manner and
according to the terms and conditions set forth in the Mortgage Note, which Mortgage
Note is incorporated herein by reference.
Sporting Green Associates, a Pennsylvania general partnership, has executell
and delivered to Mortgagee a note dated December I, 1992 (the "Sporting Green
Obligation") under which Sporting Green Associates is obligated to pay the Mortgagee the
aggregate princlpalsum of One MUllon Seven Hundred Eighty.Six Thousand Nine Hundred
Sixty-Two and 58/100 Dollars ($1,786,962.58), lawful money of the United States of
America, with interest thereon payable at the rates and time, in the manner and according
to the tenns and conditions set forth in the Sporting Green Obligation, which Sporting
Green Obligation is incorporated herein by reference.
The Mortgage Note and the Sporting Green Obligation are collectively
referred to from time to time hereinafter as the "Notes".
NOW TIlEREFORE, in consideration of and as security for the payment of
all sums payable under the tenns of the Notes and this Mortgage, according to their
respective tenns and conditions, and for pl!rfonnance of the agreements, conditions,
covenants, provisions and stipulations contained therein and herein, Mortgagor has
granted, conveyed, bargained, sold, aliened, enfeoffed, released, confinned and mortgaged,
and by these presents does hereby grant, convey, bargain, sell, alien, enfeoff, release,
confinn and mortgage unto Mortgagee, Its successon and assigns, all those certain tracts
or parceis of land situate in the Township of Silver Spring, Cumberland County,
Pennsylvania, more particularly bounded and described in Exhibit "A" attached hereto and
by this reference made a part hereof.
b'OoK1121I'ACE 337
EXlIllllT "JI"
MORTGAGE
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THIS MORTGAGE, dOled as of the 3rd day of March, 1993, by and between
WOOD'S DRIVE ASSOCIATES, a Pennsylvania general partnership having an office al6570
CarUsle Pike, Mechanlcsburg, Cumberland County, pelU1Sylvanla 17055 (the "Mongagor")
AND
RESOLUTION TRUST CORPORATION, IN ITS CAPACITY AS CONSERVATOR FOR
HOMESTEAD FEDERAL SAVINGS ASSOCIATION, SUCCESSOR IN INTEREST TO
HOMESTEAD SAVINGS ASSOCIATION, with offices at 120 South Union Street,
Middletown, Dauphin County, Pennsylvania 17057 (hereinafter the "Mongagee"),
itmtals
Mongagor has executed and deUvered to Mongagee a note dated December
I, 1992 (the "Mongage Note"), under which the Mongagor Is obUgated to pay the
Mongagee the aggregate principal sum of One Hundred Ninety-two Thousand Eight
Hundred Thiny.lWO and 36/100 Dollm (S192,832.36), lawful money of the United States
of America, with Interest thereon payable at the rates and times, In the manner and
according to the tenns and conditions set fonh In the Mongage Note, which Mongage
Note is Incorporated herein by reference.
sponlng Green Associates, a Pennsylvania general partnership, has executed
and deUvered to Mongagee a note dated December I, 1992 (the "Sponing Green
ObUgation") under which Sponlng Green Associates is obUgated to pay the Mongagee the
aggregate principal sum of One Million Seven Hundred Eighty.SIx Thousand Nine Hundred
Sixty-Two and 58/100 Dollan ($1,786,962.58), lawful money of the United States of
America, with Interest thereon payable at the rates and time, In the manner and according
to the tenns and conditions let forth In the Sponlng Green ObUgation, which Sponing
Green ObUgation is Incorporated herein by reference.
The Mongage Note and the sponlng Green ObUgation are collectively
referred to from time to time hereinafter as the "Notes".
NOW THEREFORE, In consideration of and as security for the payment of
aU sunu payable under the tenns of the Notes and this Mongage, according to their
respective tenns and conditions, and for perfonnance of the agreements, conditions,
covenants, provisions and stipulations contained therein and herein, Mongagor has
granted, conveyed, bargained, sold, aliened, enfeoffed, released, conlinned and mongaged,
and by these presents does hereby grant, convey, bargain, sell, alien, enfeoff, release,
conlinn and mongage unto Mongagee, its successors and assigns, ali those cenaln tracts
or parcels of land situate In the Township of Silver Spring, Cumberland County,
PelU1Sylvanla, more panicularly bounded and described In Exhibit "A" attached hereto and
by this reference made a pan hereof.
TOGETHER WITH all of the Mongagor's right, title and interest noW owned
or hereafter acquired in:
(1 ) all buildings and other Improvements erected or hereafter
erected thereon; and
(2) all building materials, fixtures, building machinery and building
equipment delivered on site to the real estate during the course of, or in
connection with, constrUction of, or reconstrUction of, or remodeling of any
buildings and Improvements; and
(3) any and all easements, rights of way, tenements, hereditaments
and appurtenances belonging to the real estate or any pan thereof hereby
mongaged or intended so to be, or in any way appenaining thereto, and all
streets, alleys, punges, ways, water courses, and all easements and
covenants now existing or hereafter created for the benefit of the Mongagor
or any subsequent owner or tenant of the monpged real estate over ground
adjoining the mongaged real estate and all rights to enforce the maintenance
thereof, and all other rights, libemes, and privileges of whatsoever kind or
character, and the revenlons and remainders, income, rents, Issues and
profits arislnl therefrom, and all the estate, right, tide, Interest, propeny,
possession, claim and demand whatsOever, at law or in equity, of the
Mongagor In and to the real estate or any part thereof.
(4) All proceeds of the conversion, voluntary or involuntary, of any
of the foregoinl into cuh or liquidated claims, Including without limitation,
proceeds of insurance and condemnation awards.
All of the above.mentioned land, buildinp, Improvements, fixtures,
machinery, equipment, tenements, hereditaments and appurtenances, and other propeny
Interests owned by Mortgagor Is hereinafter collectively referred to u the "Premises".
TO HAVE AND TO HOLD the Premises hereby conveyed or mentioned and
intended 10 to be, unto Mortgagee, Its successors and usigns to its own proper use and
behoof forever.
TRACT NO. 1 IS UNDER AND SUBJECT to the lien and payment of a
mongage in the orilJinal principal amount of One Hundred Fony Thousand Dollars
(51<tO,000.00) given by Mortgagor to Lawrence F. McYltty and Claire Cressman McVltty,
et al" and recorded in the Office of the Recorder of Deeds in and for Cumberland County,
Pennsylvania at Mortgage Book 922 Page 325.
PROViDED ALWAYS, and this Instnunent Is executed upon the express
condition that, If Mongagor pays to Mongagee the principal sum, the interest thereon and
- 2.
all other sums payable by Mortgagor to Mortgagee as are secured hereby, in accordance
wilh the provisions of the Noles and this Mortgage, at the times and in Ihe .ma~er
specified without deduction, fraud or delay, and Mortgagor perfomu and complies wllh
all the a~ements, conditions, covenants, provisions and stipulations conla~ed therein,
Ihen Ihls Mortgage and Ihe estate hereby granted shall cease and become VOId.
THIS MORTGAGE Is executed and delivered subject to the following
covenants, conditions and agreements and Mortgagor covenants, warrants and agrees as
follows:
(1) The Mortgagor has good, valid and marketable title to the
Premises. The Mortgagor has the right, full power and lawful authority to
grant, convey, bargain, sell, allen, enfeoff, release, confirm and mortgage the
same to the Mortgagee in the manner and form herein done. The Premises
are free and clear of all liens and encumbrances except those of reCord which
were previously disclosed In writing to the Mortgagee. The Mortgagor will
WlUTa/\t and defend the rights and title of Mortgagee to all of the Premises
against all claims.
(2) The Notes secured hereby shall evidence, and this Mortgage
shall be security for, the principalsurn together with applicable interest, costs
and fl!t!l. This Mongage shall further be security for the perfonnance of
MongalOr of all agreements, conditions, covenants, provisions and
undena1dnp In the Notes and this Mortgap.
(3) From time to time, until the Indebtedness secured hereby Is
fully repaid, Mortgagor shall: (a) pay and dlscharge, when and IS the same
shall become due and payable, all tues, usessments, sewer and water rents,
and any and all other charges, claims and liens assessed, levied, Imposed or
created, from time to time, upon the PremIses or any put thereof which shall
or might have priority in lien, payment or distribution to the debt secured
hereby; (b) pay all ground rents reserved from the PremIses and pay and
discharge aU mechanics' liens which INIY be filed against the Premises which
shall or might have priority in lien or payment to the debt secured herebYi
and (c) pay and discharge any docurnentary stamp or other tax, including
interest and penalties thereon, If any, now or hereafter becoming payable on
the Notes.
(4) In the event Mortgagor neglects or refuses to pay any charges
mentioned herein, Mortgagee may do so, add the cost thereof to the total
principal sum secured hereby, and collect the same as 8 pan of said total
principal sum. together with interest thereon at the rate provided herein.
.3.
(5) Mortgagor covenants and agrees not to create, nor pennlt to
accrue upon all or any part of the Premises, any debt, lien or charge which
would 'be prior to, on a parity with, or junior to the lien of this Mortgage,
without the prior written consent of Mortgagee.
(6) Mortgagor shall not suffe.r or pennlt the Premises, or any
portion of the Premises, to be used by the pubUc, as such, without restriction
or In such manner as might reasonably tend to Impair Mortgagor's title to the
Premises or any portion of the Premises, or In such manner as might
reasonably make polllble a claim or claims of adverse usage or adverse
polleulon by the pubUc, as IUch, or of ImpUed dedication of the Premises or
any portion of the Premises.
(7) The occurrence of anyone or more of the following events
shall, at the option of Monga,ee, constitute an event of default hereunder:
(a) The failure of MortgalOr to pay any Installment
of principal or Interest on the Notes to Monpaee, after the
same becomes due and payable, lubject to written notice and
pace periods provided for In the Notes.
(b) The failure of MortplOr to pay any other charJe,
premium or lum required to be pald In the Notes or In this
Monp,e, within fiheen (15) days after the same becomes due
and payable.
(c) The failure of Mongagor to perfonn or oblelVe
other aJlftlllentl In the Notes or In this Mnrtgaae within
fiheen (15) days after the same Is to be perfonned or
observedj provided, however, that If MortplOr has proceeded
and Is maldni a acod faith effon to proceed to cure said
default, and has provided written notice thereof to Mortgagee,
within the said fiheen (15) day period, which describes In
detail the procedure or action beln, taken and the realonable
time period required to cure laid default, the provlllons hereof
.hall be delayed while Mortgagor Rltemptl to cure said default.
(d) Any aslll11l1\ent for the benefit of Mortgagor'1
creditors, or other proceedlnp Intended to Uquldate or
rehabilitate Mortaa,or'1 eltate., or Monplor'. becoming
Insolvent within the meanlna of the federal bankruptcy law.
(e) The occurrence of an event of default as defined
In the Notes.
... .
(O The tranSfer, conveyance or other disposition of
title to or equitable u,terest in the Premises or any portion
thereof under and subject to this Mortgage, except with the
expressed written consent of the Mongagee. A transfer of any
interest in the Premises by Mongagor under and subject to this
Mongage, without the expressed written consent of Mongagee
shall be deemed to violate this prohibition against transfer.
The Mongagee agrees to releue all or any pan of the Premises
from the lien of this Mortgage upon the payment of the
amounts set forth in Paragraph 19,
(g) The occurrence of an Event of Default under any
subordinate mongage, securiry agreement or similar docwnent
creating alien.
(8) If one or more of the evenlJ of default referred to in paragraph
(7) hereof shall occur, the Mongagee may declare a default hereunder. In
which event:
(a) The entire unpaid balance of the principal.urn
and all other IWt\I .ecured by thiJ Mongap, topther with
unpaid Interest thereon, .hall become immediately due and
payable without funher notice or demand; and
(b) Mongagee may forthwith institute an action of
monpp foreclosure, or take .uch other action, u the law
may allow, at law or in equlry, for the enforcement hereof and
l'taUzation on the mongap securiry or any other security
which is herein or elsewhere provided for, and proceed thereon
to ftna1 judpnent and execution thereon for the entire unpaid
balance of the principal sum advanced, with interest at the rate
provided in the Notes, and all other sums secured by this
Mongap, all COlts of .ult, interest u provided in the Notes on
any judpnent obtained by Mongagee from and after the date
of any Sherift'. Sale of the Premise. (which may be sold in one
parcel or in .uch parcel., manner or otherwise a. Mortgagee
.haIl elect) undlactual payment is made by the Sheriff of the
full amount due Mongagee, and reuonable attorneys' fees for
collection.
(c) Mortgagee or its agent may fonhwith enter into
possession of the Premises, with or without legal action, by
force if necesllU)', and collect rentals and enforce leases or
other agreements affecting the Premises, but without being
.5-
deemed to have affumed such leases or agreements. collect all
rents and profits therefrom. and pay all COSIS of collection and
adminislratlon expense. taxes. water and sewer rents, charges
and c1alnu, Insurance premiunu, all other canying charges
(Including but not limited to agent's compensation and fees
and COslS of counsel and receiven), expenses of maintenance,
repair or restoration of the Premises and the principal and
Interest hereby secured, In such order and amounts as
Mortgagee In Mortgagee's discretion may elect. Mortgagee or
its agent may have a receiver appointed to enter Into
possession of the Premises, collect the rents and profits
therefrom. and apply the same as the coun may direct.
Mortgagee shall be Uable to account only for rents and profits
actually received by Mortgagee. For such purposes Mortgagor
hereby lnevocably authorizes and empowers any anomey of
any coun of record to appear for Mortgagor and on its behalf
In any action of ejecunent and to confess judgment therein
against Mortgagor and In favor of the Mortgagee for ponession
of the PremIses. whereupon a writ may forthwith be issued for
the lmmedlate possession of the Premises, and for reuonable
anorneys' fees, if necessary, without any prior writ or
proceedlni whatsoever; and for 10 dom, this Mortgage or a
copy hereof verified by affidavit shall be a sufficient wammt.
(d) The authority granted herein to appear for
Mortgagor and on its behalf and to confess judgment shall not
be exhausted by any exerdse thereof, but shall continue, and
may be exercised as aforesaid, from time to time, and at all
times until payment of the amounts secured hereby and
perfonnance of the obligations hereunder.
(e) Mortgagee shall have the right to set off aU or
any pan of any amount due by Mortgagor to Mortgagee under
the Notel, this Mortgage or otherwise, aplnst any
indebtedness, liabilities or obU,atlons owing by Mortgagee for
any reuon and In any capacity to Mortgagor, Including any
obUption to disbune to Mortgagor or Its designee any funds
or other property on deposit with or otherwise In the
possession, control or custody of Mortgagee.
(9) No right or remedy herein conferred upon or reserved to the
Mortgagee is Intended to be exclusive of any other right or remedy but each
shall be cumulative, concurrent and In addition to every othe; right or
remedy herein given or now or hereafter existing at law or In equity or by
.6.
statute. In order to entitle 'be Mortgagee to exe~ise any ti~ht or remedy
reserved to it herein, it shall not be necessary to glve any nonce, other than
such notice as may be herein expressly required.
(10) No waiver of any event of default hereunder, whether by the
Mortgagor or the Mortgagee, shall extend to or affect any subsequent event
of default or impair any rights or remedies consequent thereon, No delay or
omission of the Mortgagee to exercise any tight or remedy accruing upon any
event of default shall impair any such tight or remedy or shall be construed
to be a waiver of any tight or remedy given hereunder, which tights and
remedies may be exercised as often as may be deemed expedient by the
Mortgage..!.
(11) If Mortgagor should fall to pay real estate taxes or o,ther taxes,
assessments, water and sewer rents, charges and claims, swns due under any
ptior lien or insurance premiums, or fall to complete consbUction of any
improvements or make necessary repairs, or pennit waste, or fall to cure any
default under any prior or subordinate lien, Mortgagee, at its election and
without notice to Mortgagor, shall have the right to make any payment or
expenditure and to take any action which Mortgagor should have made or
taken, or which Mortgagee deems advisable to protect the security of this
Mortgage or the Premises, without prejudice to any of Mortgagee's rights or
remedies available hereunder or otherwise, at law or in equity. All such
sums, as weli as costs, advanced by Mortgagee pursuant to this Mortgage
shall be due immediately from Mortgagor to Mortgagee, shall be secured
hereby and the lien thereof shall relate back to the date of this Mortgage,
and shall bear interest from the date of payment by Mortgagee until the date
of repayment at a rate equal to the lesser of (I) a rate five percent (5%)
above the nte specified in the Note or (il) the highest rate permitted by
applicable law.
(12) In the event that all or any portion of the Premises is
condemned by any lawful authoriry for any public or quasi.public use or
purpose or sold under threat thereof, all proceeds shall be applied toward the
prepayment of the amounts secured hereby. Any excess proceeds shall be
paid to Mortgagor. In the event that all or a significant portion of the
Premises Is so condemned or sold so as to render the Premises unsuitable for
Mortgagor's continued use, Mortgagor shall have the right to prepay the
remaining amountslecured hereby in full, Including any premium set forth
in the Notes. No settlement for the damages sustained thereby shall be made
by Mortgagor without Mortgagee's prior written approval thereof. If the
amount of an inltiai award of damages for the condemnation is insufficient
to pay the amounts secured hereby In full, Mortgagee shall have the right to
file an appeal or such other legal proceedings as legal counsel may advise to
- 7.
be appropriate under the circumstances in the name of Mongagor or of
Monpgee (for which action Mongagee or such counsel as It chooses is
hereby Irrevocably appointed attomey.in-fact for Mongagor), and to
prosecute same to final conclusion or otherwise dispose thereof, in which
event the expenses of the appeal or other appropriate legal proceedings,
Including but not Umlted to counsel fees, shall be first paid out of the
proceeds, and no credit shall be given on account of the amounts secured
hereby other than a credit for the amount, If any, whereby the final proceeds
exceed ell such expenses. Nothing in this covenant or elsewhere in this
Monpge shall Umlt rights otherwise available at law to Mongagee,
Including but not Umlted to rights to intervene as parties to any
condemnation proceeding. Any and all compensation, awards, damages,
claims, rights of action and proceeds hereunder are hereby assigned by the
Monpgor to the Mongagee, to be applied as herein provided. The
MonplOr apees to execute any uaipunent ap-eements that the Mortgaree
may require In furtherance thereof,
(13) (a) Mortgagor hereby WlJTlllts and covenants that,
to the best of its knowledp:
(I) The present use of the Premises la,
and any currently contemplated future use of the
Premises wlll be In substantial compliance with
all applicable fedem and state environmental
laws and reJUlations and no envirorunental
liabillty exists on or in connection with the
Premlsesj
(U) There are no hazardous substances
located on the Premises (except as dlsc:1osed in
wrltina to Mongagee), and any such hazardous
substances have been properly transponed,
stored and/or disposed of at other locadons;
(ill) Mortgagor has or will obtain all
permits or authorizations under envirorunental
laws or reBUlations necessary to cany on their
buslness(es), has or wiU file all required
notifications and plans and has or will have such
Infonnatlon and plans avallable as required
under envlrorunentallaws or reBUlatlons, and are
in compliance with all applicable envirorunental
laws or reBUlatJons, including but not Umited to
deed acknowledgement required by the
- 8.
Pennsylvania Solid Waste Management Act, 35
P.S. 66018,405 and the Pennsylvania Hazardous
Sites Cleanup Act, 35 P.S. fi6025.512(b)j
(Iv) Mongagor is not aware of nor has
Mongagor received any claims, demands, orders,
notices of violation, notices of intent to file a
claim, demand, order, lawsuit, notices of
deficiencies, or requests for infonnation relating
to actions based upon environmental laws or
regulauons;
(v) Mongagor has received no notice
that the subject real propeny or assets have been ,
desianated as a site on the National Priorities
Un or similar state list, or have been or are the
subject of any removal or response action,
private or governmental, under the
Comprehensive Environmental RespolUe,
Compensation or UabWty Act, as amended, or
the Pennsylvania Hazardous Sites Cleanup Act or
any slml1ar state or federal law, and that no
requests have been received to provide
informauon or participate In any study, remedial
deslp or respolUe action under such laws;
(vi) Mongagor wl11 exercise due care
with respect to any substances, hazardous or
otherwise, which may be located on, disposed of,
or placed on the PremIses:
(vil) Mongagor shall use, and shall use
reasonable effons to cause each employee, afent
or contractor to use reasonable effons to comply
In all material respects with any applicable
environmental laws or regulations; provided,
however, that this provision shall not prevent the
Mongaaor from contesting, In good faith and
with reasonable dlllaence, the validity or
application of such laws by appropriate
proceedings;
(viii) Mongagor has not, by act or
omission, caused or conttibuted to the release or
.9-
threatened release of any hazardous substance
on the Premisesj and
(Ix) Mongagor shall notify Mongagee
and their successo\'1 in interest of any notice they
give to or receive from any entity relating to any
act or omission that could give rise to Uabllity
under any envlronmentallaw or regulation.
(14) All notices required or provided for herein shall be in writing
and sent by cenified mail return receipt requested. Subject to change by
such notice from the pany to be charged with such notice, notices shall be
addressed as foUows:
TO MORTGAGOR: wood's Drive Associates
6570 Carlisle Pike
Mechanicsburg, PA 17055
TO MORTGAGEE: Homestead Federal Savings Association
120 South Union Street
Middletown, PA 17057
(15) The tenns "Note" and "Monpge" shall mean the same as
amended, modified or altered from time to time.
(16) nu. Mongage cannot be changed or amended except by
agreement In writing signed by the party against whom enforcement of the
change is sought.
(17) nu. Mongage shall be governed by and constnled according
to the substantive laws of the Commonwealth of Pennsylvania.
(18) Whenever used In this Monpge, unless the context clearly
Indicates a contrary Intent:
(a) The word "Mongagor" shall mean the persons
who execute this Mongaae, any subsequent owner (beneficially
or of record) of the Premises and their respective heirs,
executO\'1, admlnistrato\'1, successo\'1 and assigns:
(b) The word "Mortgagee" shall mean Homestead
Federal Savings Association, 120 South Union Street,
Middletown, Pennsylvania, Its assignee or any subsequent
holder of this Mongaaej
- 10 -
(c)
corporation,
association;
The word "person" shall mean individual,
pannel'5hip, joint venlure or unincorporated
(d)
The use of any gender shall Include all gendersj
(e) The singular number shall Include the plural and
the singular as the context may require;
(0 All agreements, condilions, covenants, provisions,
stipulations, warrants of attorney, authoriuuloM, waivers,
releases, options, undertakings, rights and benefit made or
given by Mortgagor shall bind and affect aU persons who are
defined as "Mortgagor" as fully as though ell of them were
specificaily named herein wherever the word "Mortgagor" Is
used.
(19) Upon the sale of all or any part of the premises by the
Mortgagor, the Mortgagee agrees to release any part of the Premises from
the lien of this Mortgage upon the payment to Mortgagee at settlement on
the sale of all or any part of the Ilremlses of Twenty-five Thousand DolIlJ'I
($25,000.00) per acre, rounded to the nearest tenth of an acre. Said
payment. shall be applied to the principal balance of the Mortgage Note and
shall be pald at the Settlement of the conveyance of all or part of the
Premises. Mortgagee agrees that this Mortgage shall be satisfied and an
appropriate satisfaction document shall be promptly executed by the
appropriate officers of the Mortgagee and filed In the Office of the Recorder
of Deeds In and for Cumberland County, Pennsylvania upon the payment In
full of the principal and accrued Interest due on the Mortgage Note.
IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be
executed on its behalf by It. duly authorized general partners as of the day and year first
above mentioned.
WITNESS:
MORTGAGOR:
WOOD'S DRIVE ASSOCIATES
By: Wood's Drive, Inc. . General Partner
B~/()~ (}-'~
I President
By: Commerce Drive, Inc, . General Partner
BY'7fW'!)~ &1'-
P esldent
-11.
EXHIBIT "A"
Tract No.1
ALL TIiAT CERTAIN piece or parte! ofland situate in Silver Spting Township,
Cumberland County, pennsylvania, being more particularly bounded and described as
follows:
BEGINNING at a point on the southern right-of.wlY line of U.S. Route #11,
said point belni loclted and referenced westwardly a distance of 1423. feet from Village
Roadj thence South 21 degrees 01 minute 30 seconds Eat, . distance of 257.21 feet to a
polntj thence South 28 degrees 03 minutes 30 seconds West, I distance of 50.84 feet to
a point; thence South 73 degrees 56 minutes 30 seconds West, I distance of 469.81 feet
to a pointj thence South 33 depees 21 minutes 30 seconds East, I distance of 380.17 feet
to a point; thence South 1 dep-ee 54 minutes 30 seconds West, I distance of 118.00 feet
to I point; thence NOM 82 depees 04 minutes Eat, I distance of 349.89 feet to a point;
thence South 5 dep1!el 05 minutes 53 seconds Eat, I distance of 285.13 feet to I point;
thence NOM 84 depees 16 minutes 32 seconds Eat, I distance of 498.58 feet to a point;
thence &1011I land now or lite of Vance McCormick South 13 depees 02 minutes East, a
distance of 50.48 feet to . point; thence &1011I the same South 84 degrees 16 minutes 34
seconds West, I distance of 505.53 feet to I point; thence &1011I the same South 5 degrees
05 minutes 53 seconds East, I distlnce of 1001.29 feet to I point; thence alolllland now
or lite of Eppley NOM 63 dep-ees 04 minutes 29 seconds West I distance of 561.14 feet
to a pointj thence alolll the same South 46 degrees 48 minutes 11 seconds West, a
distance of 1021.83 feet to I polntj thence alolll the same NOM 47 depees 13 minutes
10 seconds West, I distance of 1048.54 feet to I pointj thence alolll the slme South 42
degrees 44 minutes 25 leConds West, I distance of 168.03 feet to I pointj thence along
land now or late of the Stewart Estlte NOM 44 degrees 32 minutes 36 seconds West, a
distance of 1101.09 feet to I polntj thence alolllland now or lite of Cressman Nonh 66
degrees 58 minutes East, . distance of 1719.0 feet to . point; thence along the same Nonh
70 degrees 13 minutes East, a distance of 589.50 feet to a polntj thence along the same
NoM 33 degrees 17 minutes West, I distance of 212.36 feet to a point on the southern
right-of.way line of U.S. Route #l1j thence along the same on the art ofa curve curving
to the right haviq a radius of 3819.80 feet I distance of 193.95 feet to a point of
tangency; thence alolll the southern right-of.way Une of U.S. Route #11 Nonh 75 degrees
44 minutes 30 seconds East, I distance of 420.0 feet to a point the place of BEGINNING.
Sald tract containing 87.19 acres.
Tnct No.2
All that cenain piece or parcel of land situate in Silver Spring Township,
Cumberland County, Pennsylvania, more panicularly bound and described as follows to
, '
w1t:
BEGINNING at a point in Legislative Route No, 34 known as "Carlisle Pike"
at line of landJ noW or formerly of James A. Potteiger and Emma F. potteiger, his wife;
thence alons said lands of Potteiger South 23 degrees 15 minutes East, a distance of 212
feet to a pointj thence aionslands now or formerly of Della J. Bergner, South 70 degrees
15 minutes West, a distance of 425 feet to a point; thence continuing aiong sald lands noW
or formerly of Bergner, South 67 degrees West a distance of 50 feet to a point; thence
along lands noW or formerly of Paul L. Cressman and Lenora C. Cressman, his wife, NoM
23 degrees West, a distance of 208 feet to a point in sald Legislative Route No. 34,
"Carlisle Pike" fint mentioned above; thence aiong a line In said Legislative Route No. 34
"Carlisle Pike", NOM 67 degrees East, a distance of 50 feet to a point in the same; thence
continuing in said Legislative Route No. 34, "Carllsle Pike", along a curve to the right
having a radius of 3,819.8 feet, an arc distance of 425 feet to a point in the same at line
of lands now or fonnerly of James A. Potteiger and Emma P. potteiger, his wife, the point
and place of BEGINNING.
Containing approltimately 2.28 acres.
TRACTS NOS. 1 AND 2 BEING the same premises which Robert D. Hutton
and Dorothy M. Hutton, his wife, by their Deed dated AUJUlt 29, 1988 and recorded
September I, 1988 in the OffIce of the Recorder of Deeds In and for Cumberland County,
In Deed Book N, Volume 33, Pap 1050, aranted and conveyed unto Wood's Drive
Associates.
Tract No.3
ALL TIiAT CERTAIN parcel or tract of real estate situate in SUver Spring
Township, Cumberland County, pennsylvania, be!nI more particularly bounded and
described as follows:
BEGINNING at a point on the IOUthern lep} ript-of.way Une of Carlisle Pike
(L.R. 34) at the northwest comer of Lot No.2 on the hereinafter described Subdivision
Plan; thence alorll the western line of said Lot No.2 South 23 dtaates 00 seconds East a
distance of 157.68 feet to the northern Une of lands now or formerly of Robert D. Hutton
and Dorothy M. Hutton, his wifej thence alorll the northern line of said lands South 67
degrees 00 minutes West a distance of 568.06 feet to the eutem line of lands now or
formerly of Alexander Stewart; thence along the eastern line of said lands North 44 desrees
17 minutes West a distance of 170.90 feet to a point on the southern legal right.of.way
line of Carlisle Pike (LR. 34)j thence along the IOUthern lep! ript-of.way line of CarUsle
pike (L.R. 34) NOM 67 depes 08 minutes 30 seconds East a distance of 630.10 feet to
a point at the nOMwest comer of Lot No.2 on the hereinafter described Subdivision Plan,
the point and place of BEGINNING.
Contalnlng 2.18 acres.
BEING Lot No. I, Final Subdivision Plan for Paul L. Cressman, Jr., et ai,
dated November 25, 1975, revised Febnuuy 24, 1976, recorded In the Office of the
Recorder of Deeds of Cumberland County In Plan Book 28, Page 41.
Tract No.4
ALL TIiAT CERTAIN parcel or tract of real estate situate In Silver Spring
Township, Cumberland County, PelU\Sylvanla, being more particularly bounded and
described as follows:
BEGINNING at a point on the southern legal right -of.way line of Carlisle Pike
(L.R. 34) at the nonheast comer of Lot No, 2 on the hereinafter described Final
Subdivision Plan; thence along the eastern line of said Lot No. 2 South 23 degrees 00
seconds East II distance of 1046.94 feet to a point on the nonhern line of lands now or
fonnerly of Raben D. Hutton and Dorothy M. Hulton, his wife; thence -Jong the northern
line of said land Nonh 67 dep-ees 00 minutes East a distance of 800.24 feet to a point on
the southwest comer of 1anda now or fonnerly of Prederick R. Mumma; thence along the
western line of said land Nonh 23 dep-ees 00 seconds West a distance of 145.00 feet to
a point on the southern legal right.of.way line of Carlisle Pike (L.R. 34); thence alOI\I the
southern legal risht-of.way of Carlisle Pike (LR. 34) South 67 desrees 08 minutes 30
seconds West a distance of 800.24 feet to a point at the nonheast comer of Lot No.2 on
the hereinafter described Pinal Subdivision Plan, the point and place of BEGINNING.
CONTAINING 2.68 acres.
BEING Lot No.3, Final Subdivision Plan for Paul L. Cressman, Jr., et ai,
dated November 25, 1975, revised Febnwy 24, 1976, recorded In the Office of the
Recorder of Deeds of Cumberland County In Plan Book 28, Pap 41.
TRACTS NOS. 3 AND 4 BEING the same premises which Lawrence F. McViny
and Claire Cressman McVlny, his wife, Earl N. Stauffer and Hazel Cressman Stauffer, his
wife, and Paul L Cressman, Jr. and Thelma M. Cressman, his wife, by their Deed dated
August 29, 1988 and recorded November 9, 1988 In the Office of the Recorder of Deeds
In and for Cumberland County in Deed Book Q, Volume 33, Page 833 granted and
conveyed unto Wood's Drive Associates.
LESS AND EXCEPT from Tracts I, 2, 3 and 4 all those cenaln tracts or
parcels of land nlUlte In Silver Spring Township, Cumberland County, Pennsylvania
previously conveyed out of Tracts I, 2, 3 and 4 by Wood's Drive Associates described and
designated as follows:
(I) Lot No.3 on a UmIted Final Subdivision Plan of 87.428 acres
prepared for Wood's Drive Associates recorded In Plan Book 61, Page 60
more particularly described In a Deed by and between Wood's Drive
AssocIates as Grantor and Cumberland Valley Associates as Grantee dated
August 16, 1990 and recorded September 14, 1990 In the Office of the
Recorder of Deeds In and for Cumberland Count)' In Deed Book T, Volume
34, It Plge 981.
(Ii) Lot 2A on the Final LImited Resubdlvision Plan for Wood's
Drive Associates, u described In I Deed dlted September 25, 1992 and
recorded September 25, 1992 by and between Wood's Drive Associates, a
Pennsylvania general partnership, and Pennsylvanil Power. Light Company,
a Pennsylvanil corporation, recorded In the Office of the Recorder of Deeds
In and for Cumberland Count)' In Deed Book X. Volume 35, Page 138.
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CERTIFICATE OF SERVICE
I heraby cartlfv that a true and correct copy of tha foregoing Amanded
Complaint was served by U,S, mall, postage prepaid upon the following:
Peter C. Cillo. Esquire
Federman & Phelan
Suite 900
Two Penn Center Plaza
Philadelphia, PA 19102.1799
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FEDERMAN AND PHELAN
By: Peter C. Cilia, Esquire
Identification No. 39686
suite 900
TWO Penn Center Plaza
Philadelphia, P~ 19102
(215) 563-7000
Attorney for
Defendant
WOOD'S DRIVE ASSOCX~TES,
a pennsylvania General
partnership
:
:
:
:
:
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I
COURT OF coMMON PLEAS
CUMBERLAND COUNTIII)rft 'to 1'!.1'.AJ)
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" I New Matter
vs.
NO.
95-3154
AND
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ANSWER OF NLI/LF II, L.P. ;"'1i """C" ..,,, ""d
TO AMENDED COMPL~INT WITH NEW Hl\TTER::~'J,,"i~~ '/. ..
Al. -f ,j"'I.(JJ?f ..
NOW COMES Defendant, NLI/LF II, L.P. 'NLljDF" or
NLI/LF II, L.P.
"Defendant"), by and through its counsel, Federman and phelan,
and answers the Wood's Drive Associates' ("Wood" or "plaintiff")
Amended complaint for Declaratory Judgment as follows:
1. Admitted.
2. Admitted.
3. Denied as stated. The averments of paragraph 3
refer to a Mortgage Note attached as Exhibit "A" to plaintiff's
complaint. That document, being in writing, speaks for itself
and any characterization thereof is denied.
4. Denied. The averments of paragraph 4 refer to the
Mortgage Note attached as Fxhiblt "A" to plaintiff'S complaint.
That document, being in writing, speaks for itself and any
character i zat ion thereof I s denied.
.
.
~
5. Denied. The averments of paragraph 5 refer to the
Mortgage Note attached as Exhibit "A" to Plaintiff's complaint.
That document, being in writing, speaks for itself and any
characterization thereof is denied.
6. Denied. Defendant is without sufficient knowledge,
information or belief to form an opinion as to the truth or
falsity of the averments of paragraph 6 and strict proof of same
is demanded at trial.
7. Denied. Defendant is without sufficient knowledge,
information or belief to form an opinion as to the truth or
falsity of the averments of paragraph 7 and strict proof of same
is demanded at trial.
B. Denied. It is denied that Wood contacted Defendant
with respect to payoff of the Mortgage Note. On the contrary,
Wood's contacted National Loan Investors, L.P. ("NLI").
Defendant is without sufficient knowledge, information or belief
to form an opinion as to the truth or falsity of the remaining
averments of paragraph B and strict proof of same is demanded at
trial.
9. Denied. It is denied that on or about December 16,
1994 Wood's and Defendant confirmed the amount of the outstanding
obligation due on the Mortgage Note. On the contrary, NLI
confirmed the amount due on the Mortgage.
10. Admitted.
11. Oenied as stated. The averments of paragraph 11
refer to a Mortgage attached as Exhibit "B" to Plaintiff's
2
.
~
complaint. That document, being In writing, speaks for itself
and any characterization thereof is denied.
12. Denied. It is denied that a representative of
Defendant advised Wood of the outstanding balance due on the
Mortgage Note or that the Mortgage would be released upon payment
of the referenced amount. On the contrary, NLI, on behalf of
Defendant, advised Wood of the balance due. By way of further
answer, by letter dated January 16, 1995, Wood was notified by
NLI, on behalf of Defendant, that it had incorrectly advised Wood
that the Mortgage would be released upon payment of the Mortgage
Note since NLI determined that the Mortgage also secured a Note
dated December I, 1992 in the principal amount of $1,786,962.58
between the RTC and Sporting Green Associates Which Note had been
assigned to Defendant and which was still outstanding (the
"Sporting Green Note"). A copy of NLI's letter is attached
hereto at Exhibit "A" and by reference is made part hereof.
13. Denied. The averments of paragraph 13 are denied
for the reasons set forth in paragraph 12 hereinabove. By way of
further answer, the averments of paragraph 13 refer to a
facsimile transmission dated December 16, 1994. That document,
being in writing, speaks for itself and any characterization
thereof is denied.
14. Denied. Defendant is without sufficient
knowledge, information or belief to form an opinion as to the
truth or falsity of the averments of paragraph 14 and strict
proof of same is demanded at trial. By way of further answer,
3
.
.
~
Wood was aware at all times that the Mortgage also secured the
Sporting Green Note and that this obligation was outstanding.
Likewise, by its terms, tho Mortgago Note was duo and payable on
December 31, 1994. As such, there was and could bo no reliance
by Wood upon paymont of the Mortgage Note, which by its terms was
required to be paid in full on Decomber Jl, 1994. By way of
further answer, Defendant acted by and through NLI in this
matter.
15. Denied as stated. The averments of paragraph 15
refer to the Mortgage. 1~at document, being in writing, speaks
for itself and any characterization thereof is denied. By way of
further answer, it is denied that the terms of the Mortgage,
including paragraph 19, require Defendant to satiSfy the Mortgage
upon payment of the Mortgage Note because (1) the Mortgage also
secured the sporting Green Note Which is unpaid; and (2)
Plaintiff failed to pay the $25,000.00 release price per acre as
required under the Mortgage in the event of transfer of the
property subject thereto.
16. Admitted. It is admitted that Defendant has
refused to satisfy the Mortgage because (1) the Mortgage also
secures the Sporting Green Note which is unpaid; and (2)
Plaintiff failed to pay the $25,000.00 release price per acre as
required under the Mortgage in the event of transfer of the
property subject thereto.
17, Denied. The averments of paragraph 17 refer to
the Mortgage. That document, being in writing, speaks for itself
4
~
and any characterization thereof is denied. By way of further
answer, it is denied that Defendant has any obligation to satisfy
the Mortgage because (1) the Mortgage also secures the sporting
Green Note which is unpaid; and (2) Plaintiff failed to pay the
$25,000.00 release price per acre as required under the Mortgage
in event of transfer of the property subject thereto.
lB. Admitted. By way of further answer, Defendant
incorporates herein its answer to paragraph 16 above.
19. Admitted.
COUNT I - DECLARATORY JUDGMENT
WHEREFORE, Defendant, NLI/LF II, L.P. requests that
this court enter judgment in favor of Defendant and against
Plaintiff, Wood's Drive Associates on Count I of plaintiff's
con,plaint.
COUNT II - FAILURE TO COMPLY WITH STATUTE
20. Paragraph 20 is a paragraph of incorporation to
which no responsive pleading is required.
21. Denied. The averments of paragraph 21 are
conclusions of law to which no responsive pleading is required,
By way of further answer, it is denied that Defendant had any
obligation to satiSfy the Mortgage since the Mortgage also
secured the sporting Green Note which is still unpaid and
Plaintiff has failed to pay the $25,000.00 release price per acre
as required under the Mortgage in the event of transfer of the
property subject thereto.
5
"
22. Denied. 'I'he averments of paragraph 22 are
conclusions of law to which no responsive pleading is required.
By way of further answer, it is denied that Defendant had any
obligation to satisfy the Mortgage since the Mortgage also
secures the Sporting Green Note which is still unpaid and
Plaintiff has failed to pay tho $25,000.00 release price per acre
as required under the Mortgage in the event of transfer of the
property subject thereto.
WHEREFORE, Defendant, NLI/LF II. L.P., requests that
this Court enter judgment in favor or Defendant and against
Plaintiff, Wood's Drive Associates.
NEW KATTER
23. On or around December 1, 1992, Wood executed a
Mortgage Noto (the "Wood's Drive Note") in favor of Resolution
Trust corporation, in its capacity as conservator for Homestead
Federal Savings Association, successor-in-interest to Homestead
Savings Association ("RTC") in the principal amount of
$192,832.36. A copy of the Wood's Drive Note is attached hereto
as Exhibit "B" and by reference is made part hereof.
24. on or around December 1, 1992, sporting Green
Associates ("sporting Green"), executed a Mortgage Note in favor
of the RTC in the principal amount of $1,786,962.58 (the
"sporting Green Note"). A copy of the sporting Green Note is
attached hereto as Exhibit "c" and by reference ie made part
hereof.
6
.
25. on or around March J, 199J, Wood executed a
Mortgage in favor of RTC which pledged certain property as
described therein situated in the Township of silver spring,
cumberland county, Pennsylvania, as security for the Wood's Drive
Note and sporting Green Note (the "Wood's Drive Mortgage"). A
copy of the Wood's Drive Mortgage is attached hereto as Exhibit
"0" and by reference is made part hereof.
26. The Wood's Drive Mortgage was duly recorded with
the Recorder of Deeds, Cumberland county, Pennsylvania at Deed
Book 1121, page JJ7 on March 12, 199J.
27. On or around March J, 199J, sporting Green
executed a Mortgage with respect to certain property located in
the Township of Silver spring, cumberland county, Pennsylvania as
described therein as security for the sporting Green Note (the
"sporting Green Mortgage"). A copy of the sporting Green
Mortgage is attached hereto as Exhibit "E" and by reference is
made part hereof.
2B. The sporting Green Mortgage was duly recorded with
the Recorder of Deeds, cumberland county, Pennsylvania at Deed
Book 1121, page JBO on March 12, 199J.
29. Because the value of the property which was the
subject of the Wood's Drive Mortgage was SUbstantially greater
than the value of the property which was subject to the sporting
Green Mortgage, the two Notes were cross-collaterized.
JO. Accordingly, the Sporting Green Note specifically
provides at paragraph J that the Note is secured by:
7
(i) fI mortgflqe, (the "Spol,til1'J Gn.'l'11
Mortgage"), of even dflte herewith upon the
property (the "sporting Green Property"),
described in s,.id Mortgflge... and (ii) a
Mortgage, (the "\~ood' s 01"1 ve Mortgage"), of
even date herewith upon certflin property
described in the Wood's Drive Mortgage
31. The Wood's Drive Mortgage specifically provides at
paragraph 4, "Recitals", that the Mortgage shall serve as
security for the payment of all sums payable under the terms of
the Wood's Drive Note anJ the Sporting Green Note.
32. Paragraph 19 of the Wood's Drive Mortgage provides
that:
"Upon the sale of all or any part of the
premises by the Mortgagor, the Mortgagee
agrees to release any part of the Premises
from the lien of this Mortgage upon the
payment to Mortgagee at settlement on the
sale of all or any part of the Premises of
Twenty-Five Thousand Dollars ($25,000.00) per
acre, rounded to the nearest tenth of an
acre. Said payments shall be applied to the
principal balance of the Mortgage Note and
shall be paid at the Settlement of the
conveyance of all or part of the Premises.
Mortgagee agrees that this Mortgage shall be
satisfied and an appropriate satisfaction
document shall be promptly executed by the
appropriate officers of the Mortgagee and
filed in the Office of the Recorder of Deeds
in and for cumberland county, Pennsylvania
upon the payment in full of the principal and
accrued interest due on the Mortgage Note."
33. By its terms, the Wood's Drive Note was to be paid
on December 31, 1994; the Sporting Green Note has to be paid on
December 31, 1995.
34. On or around December 8, 1994, the sporting Green
Note and Mortgage and the Wood's Drive Note and Mortgage
B
(hereinafter referred to collectively as the "Documents") were
assigned to Defendant.
35. On or around December 15, 1994, NLI, the general
partner of NLI Land Associates, the general partner of Defendant,
who was at all times acting on behalf of Defendant in this
matter, was contacted by Plaintiff, by and through their counsel,
requesting a payoff of the Wood's Drive Note.
36. When the representative of NLI provided the payoff
of the WoodIs Drive Note, the loans had just been transferred to
Defendant from the RTC and neither NLI nor Defendant had
sufficient opportunity to review the loan documents in detail.
37. The representative of NLI contacted by Plaintiff,
while providing a payoff of the Wood's Drive Mortgage,
incorrectly advised Plaintiff that the Wood's Drive Mortgage
could be satisfied by payment of the Wood's Drive Note.
38. After NLI had the opportunity to review the
Documents in detail, NLI learned of the cross-collaterization of
the Wood's Drive Mortgage as security for the sporting Green Note
and advised Plaintiff of its error by letter to Plaintiff's
counsel dated January 16, 1995 (the "Letter"). A copy of the
letter dated January 16, 1995 attached hereto as Exhibit "E" and
by reference is made part hereof.
39. The Letter advised plaintiff's counsel that,
pursuant to the terms of the Documents, the Wood's Drive Mortgage
also served as security for the sporting Green Note and that if
the woodIs Drive property was being conveyed that the Mortgage
9
would only be released upon payment of $25,UUU.uu per acre as
provided under the Wood's Drive Mortgage or full payment of the
sporting Green Note.
40. plaintiff was aware at all times that the Wood's
Drive Mortgage also secured the sporting Green Note.
41. pursuant to the terms of the Documents, Defendant
had no obligation to satiSfY the Wood's Drive Mortgage unless I
(1) the Wood's Drive Note and the sporting Green Hote were paid
in full; or (2) in the event of sale of the Wood's Drive property
was being conveyed, payment of $25,000.00 per acre being
conveyed.
42. Because Defendant was not paid in accordance with
the terme of the Documents, Defendant has no obligation to
satisfy the Wood's Drive Mortgage.
43. The reference in paragraph 19 of the Wood's Drive
Mortgage to "Mortgage Note" is inconsistent with the terms of the
Documents, the respective value of the properties subject to the
mortgages and the parties' intent with respect to the cross-
collateri~ation of the Wood's Drive and sporting Green Notes.
44. The reference in paragraph 19 of the Wood's Drive
Mortgage to "Mortgage Note" is a mistake; rather, the reference
to "Mortgage Note" should refer to payment of the "Notes", i.e.,
the sporting Green Note and the Wood's Drive Note, a defined term
in the Mortgage.
45. By virtue of said mistake, the terms of the WOOd'S
Drive Mortgage are inconsistent and ambiguous and should be
10
Exhibit A
(i)
.
JRN-16-1'3'35 16109 FRa1 N1~T1Ctn. LMI HMOST
12155635534 P.02
TO
INLI
Nallonal Loan InVoIIDtl. L,P.
3030 N. W. Expressway . Suhe 1313
Oklahoma City, OklahDmo 7:1112 . (406) 947-e171
January 16, 1995
,
. I
Via Fax NOI 717-232-1459 and First Class ~ail
Nina Sanghvi, Esq
Rhoades , Sinon
Attorneys at Law
P.O. Box 1146
Harrisburg, PA 17101
Subject I Sporting Green A8sociBtes (903) ,
Doar Ms. Sanghvil
Regarding your recent req,uest for a releau of the Wood'lI Drive
Associates mortgage, (WOo~'s mortgage) t~at is recorded in Book
1121, Page 337 of the Cumberland County, PA Real Estate Records, I
have now had the oppc:tunity to review this matter in detail and it
is clear that it serves aecollateral for both the wood'lI Drive and
the Sporting Grsen debt... It is also clear that the parties
intended for $25,000 per acre to be paid ,on the obligations when
the Wood's Drive property is conveyed. Pur~uant to the terms of the
documents, if the Wood', Drive property is 'not being conveyed, then
the release of the Wood's mortgage ahall not be given until payment
in full of the Sporting Gresn debt. If this was not the caae, there
would be no logical reeson to crosapledgethe mortgages.
Our records sbow that the Wood's Drive pro~erty totals 19.33 acre.,
tberefore{,the release p~~~, :or thl Wnn~'~ mnrtQ~Qr \s '~81.800.00
(19.3 x ~25,000.OO). This leeves a bal~nae due of $290,250.24
($482,500,00 - $192,249,76). If the Wood'e: Drive property is being
conveyed, please remit the balance due of $290,250.24, in certified
funde, and we will forward a release of the Wood'. mortgage.
Please contact me and advise whetber or not the Wood'e Drive
property is being conveyed at this time.
Pleaee consider this to be
If you have any que.tions,
a revised payoff
I
pleBse feel free
letter.
to contact me.
,
Cl Peter Cilio, Ksq
DVM\12490.116
t-tn,:erolY,
g;-ltYkn
Unit Cilief
Mortgage ~oan Division
TOTft. P.02
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Exhibit B
)
MORTGAGE NOTE
..,. .
.. ...... I'~ f_
5192,832.36
December 1, 1992
FOR VALUE RECEIVED, WOOD'S ORNE ASSOCIATES, a Pennsylvania
general partnership having an office at 6S70 CarUsle Pike, Mechanicsburg, Cumberland
County, pennsylvania 17055 (hereinafter referred to as the "Maker") does hereby,
irrevocably and unconditionally promise to pay to the order of RESOLUTION TRUST
CORPORATION, IN ITS CAPACITY AS CONSERVATOR FOR. HOMESTEAD FEDERAL
SAVINGS ASSOCIATION, SUCCESSOR IN INlc.REST TO HOMESTEAD SAVINGS
ASSOCIATION (hereinafter referred to as the "Payee") the principal sum of ONE HUNDRED
NINETY-TWO THOUSAND EIGHT HUNDRED TIilRTY-TWO AND 36/100 DOLLARS
($192,832.36) with int~est from the date of this Note at the rate of seven and one.half
pe.n:ent (7lh%), per annum on the unpaid principal balance until the principal sum is paid
In full und..r the terms hereof.
Principal and interest shall be payable in lawful money of the United States
of America, to Payee at the offices of Homestead Federal Savings Association at 120 South
Union Street, Middletown, pennsylvania 17057 or such other place as the holder of this
Note may designate, in the following manner:
Interest shall be paid on the first day of each month during the term of the
Note on the outstandini principal balance during the immediately preceding month. The
'initial monthly interest payment shall be due on the first day of January, 1993.
This Note is secured by a Mortgage (the "Mortgage") of even date herewith
upon the propen}' (the "Property") described in said Mortgage located in Silver Spring
Township, County of Cumberland, pennsylvania, given by the Maker, as mortgagor. The
provisions of the Mortgage are incorporated herein by reference.
Upon the conveyance of any or aU of the Propeny, Maker shall make a
payment of the principal amount of this Note equal to 1WEN1Y.FlVE THOUSAND
DOu.ARS (525,000.00) multiplied by the number of acres of the Property, rounded to the
neanst tenth of an acre, being conveyed. Said principal payment~ shall be paid at the
settlement on the conveyance of all or any part of the Propeny.
Providtd. nevertheless, the entire unpaid principal sum. plw any and all
accrued interest on the unpaid principal sum, and any other amounts due to Payee
hereunder shall be paid in full on December 31, 1994,
)
Maken may prepay the principal balance hereof, or any portion thereof, It
any time without penalty,
If the Maker shall fail to observe or perform any of the terms, agreements,
covenants and conditions of the Maker contained herein or the Mongage, the Payee, in Its
discretion, but without any duty to do so, and without waiving any default, may perform
any of such terms, agreements, covenants and conditions, In whole or In part, and any
money advanced or expended by the Payee in or toward the fulfillment of such terms,
5l11nl~
'~_'''f'~-''.''~-'';'''''~'
agreements, covenants and conditions shall be due on demand and shall become a part of
and be added to the indebtedness due under this Note, with interest 10 be paid thereon at
the then current rate provided herein from the dale of the respective advanc~ or
expenditure.
J
In the event of any default in payment of any installment of principal or
interest under this Note for a period of fifteen OS) days after the same shall have become
due and payable, or if an event of default, as described in the Mortgag-e. shall occur, an
event of default shall occur hereunder. II an event of default shall occur hereunder, the
principal amount outstanding on this Note, together with said interest thereon, may, at the
opeon of the Payee, become immediately due and payable with the effect provided herein
and in the Mortgage. In such case, the Payee may also recover all costs of suit and other
expenses in cOMeceon therewith, tOiether with reasonable attorney's fees, but not less
than Three Thowand DoUars (53,000,00), tOietherwith interest on any jud(tT\ent obtained
by the Payee at the then cum:nt rate provided herein, includlni interest at that rate from
and after the date of any sheriffs sale until actual payment is made by the Sheriff to the
Payee o{ the full amount.
In the evenr of any default of required payment hereunder, interest shall
continue to accrue on the unpaid principal balance at the current rate provided for herein..
Such interest shall continue to acaue despite any legal moratorium on payment or any
delay in payment ordered or permitted by any court assuming jurisdiction.
The Maker does hereby irrevocably authorize and empower any attorney of
any court of record in the Commonwealth of Pennsylvania or el.sewhere, in case of an
event of uncured default hereunder, to appear for the Maker and on its behalf and to
confess judJPTlent against the Maker in favor of the Payee, with or without declaration
filed, (or the unpaid principal balance hereof. together with all amounts for which the
Maker may be liable to the Payee hereunder, including, but not limited to, unpaid interest.
costs and other expenses o{ suit and reasonable attorney's fees, all as aforesaid. II a copy
hereof, verified by affidavit, shall have been filed in said proceedings. it shall not be
necessazy to file the originfl as a warrant of attorney.
)
The authority granted herein to confess judgment shall not be exhawted by
any exercise thereof, but shall continue. and may be exercised as aforesaid, from time to
time and at all times until payment in full of all the amounts due hereunder.
The Maker hereby waives and releases all errOf1, defects and imperfections
o{ a procedural nature in any procerdings instituted by the Payee hereunder, IS well as all
bene1iu that might accrue to the Maker by virtue of any present or future laws exempting
the mortgaged property, or any other property, real or pef1onal, or any part of the
proceeds arising from any sale of any such property, from attachment, levy or sale under
execution, or providing for any Slay of execulion, exemption from civil process, or
extension of rime for payment. The Maker agrees that any real estate that may be levied
upon pursuant to any writ o{ execution issued on any judgment obtained by virtue hereof.
may be sold, in whole or in part. in any order desired by the Payee,
.2.
541013
The Maker hereby waives presentment for payment, demand, notice of
de..-nand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and
all other notices in cOMection with the delivery, acceptance, performance, default or
enfol'tement of the payment of this Note, except for the notice of non.payment provided
for hereunder, and agrees that its liability sball not be affected in any manner by any
indulgence, extension of time, renewal, waiver or modification granted or consented to by
the Payee. The Maker consents to any and all extensions of time, renewals, waivers or
modifications that may be granted by the Payee with respect to the payment or other
provisions of this Note, and to the release of the collateral or any part thereof, with or
without substitution.
The Payee shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in writing and
signed by an authorized representative of the Payee, and then only to the extent specifically
set forth in said writing. A waiver of one event shall not be constrUed as continuing or as
a bar to or waiver of any right or remedy to a subsequent event.
hereby.
The Maker intends this to be a sealed instrument and to be legally bound
All issues arising hereunder sball be gov~ed by the laws of the
Commonwealth of Pennsylvania.
.>
The terms "Note" and "Mortgage" as used herein shall mean the same as
amended, modified or altered from time to time..
This obligation shall be legally binding upon and shall inure to the Maku ancl
the Payee, and their respective heirs, successon and usigns.
[N WITNESS WHEREOF, the Maker bas caused this Note to be executed by
its duly authorized genen1 partnen as of the 1st day of December, 1992.
A'ITEST:
,
WOOD'S DRIVE ASSOCIATES
Wood's Drive, tne.
B*~..t~~
r Ident
~)~((I J'lk
(A;uistant) Secretary ('
I .
(SfjL)
IJ
.)6,(,' fl41
(Assistant) S"eci'etary
I /
.."
(SEAL)
>>M6
Commerce Drive, tnc.
BY:~/~~ ~-
/' resident ,
)
.3.
541014
[!\
exhibit C
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MORTGAGE NOTE
51,786,962.58
December 1,1992
-
.--.-.-
FOR VALUE RECEIVED, SPgR~G GREEN ASSOCIATES..a Pennsylvania
general partnership having an office at 6570 Carlisle Pike. Mechanicsburg, Cumberland
County, Pennsylvania 17055 (hereinafter referred to as the ''Mal<er'') aoe:; 1.= "by,
Irrevocably and unconditionally promise to pay to the order oC RESOLUTION TRUST
CORPORATION, [N ITS CAPACITI AS CONSERVATOR FOR HOMESTEAD FEDERAL
SAVINGS ASSOCIATION, SUCCESSOR [N INTEREST TO HOMESTEAD SAVINGS
ASSOCIATION (her.ili1afier referred to as the ''Payee) the principal sum oCONE MIWON
SEVEN HUNDRED EIGHlY-SIX TIiOUSAND NINE HUNDRED SIXTY.TWO AND 58/100
DOu.ARS ($1,786.962.58) with interest from the date oCthis Note at the rate oC seven and
one-half percent (711:%), per annum on the unpaid principal balance until the principal sum
IS pmd II1 tull under the terms hereot.
,)
Principal and interest shall be payable in lawful money oC the United States
oC America, to Payee at the offices oC Homestead Federal Savings Association at 120 South
Union Street, Middletown, pennsylvania 17057 or such other place as the holder of this
Note may designate.
)
Provided, nevertheless. the entire unpaid principal sum, plus any and all
accrued interest on the unpaid principal sum, and any other amounts due to Payee
hereunder shall be paid in full on December 31,1995.
,
541016
The authoriry granled herein 10 confess judgment shall nOI be exhausted by
any exercise thereof, bUI shall continue, and may be exercised as aforesaid, from time to
time and at all times until payment in full of all the amounts due hereunder.
The Maker hereby waives and releases all errors, defects and imperfel:tions
at. procedural nature in any proceedinp instituted by the Payee hereunder, as well as all
benefits that might accrue 10 the Maker by vinue of any present or future laws exempting
the mortgaged propeny, or any other property, real or penonal, or any part of the
proceeds arising from any sale of any such propeny, from attachment, levy or sale under
execution, or providing for any stay of execution, exemption from civil process, or
extension of time for payment. The Maker agrees that any real estate that may be levied
upon pursuant to any writ of execution issued on any judgment obtained by virtue hereof,
may be sold, in whole or in part, in any order desired by the Payee.
)
The Maker hereby waives presenanent for payment, demand, notice of
demand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and
all other notices in connection with the delivery, acceptance, performance, default or
enforcement of the payment of this NOle, except for the notice of non-payment provided
for hereunder, and agrees that its Uabillry sball not be affected in any manner by any
indulgence, extension of time, renewal, waiver or modification granted or consented to by
the Payee. The Maker consents to any and all extensions of time, renewals, waiven or
modifications that may be granted by the Payee with respel:t to the payment or other
provisions of this Note, and to the release of the collateral or any part thereof, with or
without substitution.
The Payee shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in writing and
signed by an authorized representative of the Payee, and then only to the extent specifically
set fonh in said writing. A waiver of one event shall not be constrUed as continulnr or as
a bar to or waiver of any right or remedy to I subsequent event.
The Maker intends this 10 be a sealed insmunent and to be legally bound
hereby.
All issues arising hereunder shall be governed by the laws of the
Commonwealth of Pennsylvania.
The terms "Note" and "MOrlPges" as used herein shall mean the same as
amended, modified or altered from time 10 time.
...--
This obUgation shall be legally binding upon and shall inure to the Maker and
the Payee, and their respective heirs, successors and assigns.
)
.3.
541016
. .
Hr,rrIK~nT
'No,8JDJ
Exhibit 0
...
, \
MORTGAGE
THIS MORTGAGE, dated as of the 3rd day of March, 1993, by and between
WOOD'S DRIVE ASSOCIATES, a Pennsylvania gl!lleraJ partnership having an office at 6570
Carlisle Pike, Mechanic:sbW1', Cumberland County, Pl!llI1S}'ivania 17055 (the "Mortgagor")
AND
RESOLU110N TRUST CORPORATION, eN ITS CAPACIn' AS CONSERVATOR FOR
HOMESTEAD FEDERAL SAVINGS ASSOCIATION, SUCCESSOR eN INTEREST TO
HOMESTEAD SAVINGS ASSOCIATION, with offices at 120 South Union Street,
Middletown, Dauphin County, Pennsylvania 17Q57 (hereinafter the "Mortgagee'').
Redtals
Mortgagor has executed and delJvered to Mortgagee a note dated December
1, 1992 (the "Mortgage Note''), under which the Mortgagor is obligated to pay the
Mortgagee the aggregate principal sum of One Hundred Ninety.two Thousand Elght
Hundred Thirty.two and 36/100 Dollars ($192,832.36), lawful money of the United States
of America, with interest thereon payable at the rates and times, in the manner and
according to the tmas and conditions set forth in the Mortgage Note, which Mortgage
Note is incortlorated herein by referl!llce.
Sporting Grel!ll Associates, a Pennsylvania gl!lleral partne..."'5hip, has executed
and delivered to Mortgagee a note dated December I, 1992 (the "Sporting Green
Obligation") under which Sporting Green Associates is obligated to pay the Mortgagee the
aggregate prindpal sum of One Million Seven Hundred Elghty-Six Thousand Nine Hundred
Sixty-Two and 58/100 Dollars (51,786,962.58), lawful money of the United States of
America, with interest thereon payable at the rates and time, in the manner and according
to the terms and conditions set forth in the Sporting Green Obligation, which Sporting
Green Obligation is incortlorated berein by reference.
The Mortgage Note and the Sporting Green Obligation are collectively
refe.rred to from time to time hereinafter as the ''Notes".
NOW TIiEREFOR.f:, in consideration of and as security (or the payml!llt of
all sums payable under the terms of the Notes and this Mortgage, according to their
respective terms and conditions, and for p~onnance of the agreeml!llts, conditions,
covenants, provisions and stipulations contained therein and herein, Mortgagor has
granted, conveyed, bsrgained, sold, aliened, enfeoffed. released, confirmed and mortgaged,
and by these presems does hereby grant, convey, bargain, sell, alien, enfeoff, release,
confirm and mortgage unto Mortgagee, its successors and assigns, all those certain tracts
or parcels of land nlUa:e in the Township of Silver Spring, Cumberland County,
PennsylvanJa, more particularly bounded and described in Exhibit "A" attached hereto and
by this reference made a part hereof.
t'.;o~ 1121 lAtE 33;
...
. ...
TOGE11-IER WITH all o( the Mortgagol's right, title and interest DOW owned
or hereafter acquired in:
(l) all buildings and other improvements erected or hereafter
erected thereon; and
(2) all building ma terials, fixtures, building machinery and building
equipment delivered on site to the IU! estate during the coune of, or in
connection with. conmuction 0(, or recooslI'UcOon of, or remodeling of any
buildings and improvemellts; and
(3) any and all easements, rights of way, tenements, hereditaments
and appurtenances belODging to th7 real. estate or an~ ~ thereof hereby
mortgaged or intended so to be, or Ul any way appenauung thereto, and all
streets, alleys, passages, ways, water counes, and all easements and
covenants now existing or hereafter created (or the benefit of the Mortgagor
or any subsequent owner or tenant o( the mortgaged real estate over ground
adjoining the mortgaged real estate and all rights to enforce the maintenance
thereof, and all other rights, liberties, and privileges of whatsoever kind or
character, and the reversions and remaind~, income, rents, issues and
profits arising therefrom, and all the estate, right, title, interest, property,
possession, claim and demand whatsoever, at law or in equity, of the
Mortgagor in and to the real estate or any part thereof.
(4) All proceeds of the conve..noa, voluntary 01' involuntary, of any
of the foregoing into cash or liquidated claims, incJuding without limitation,
proceeds of insurance and condemnation awards.
All of the above. mentioned land, buildings, improvements, fixtures,
machinery, equipment, tenements, hereditame.."u and appurtenances, and other property
Interests owned by Mortgagor Is hereinafter coUectively referred to as the "Premises".
TO HAVE AND TO HOLD the Premises hereby conveyed or mentioned and
Intended so to be, unto Mortgagee, its successon and assigns to its own proper use and
behoof forever.
TRACT NO. 1 [S UNDER AND SUBJECT to the lien and payment of a
mortgage in the original principal amount of One Hundred Forry Thousand DoUars
(5140,000.00) given by Mortgagor to Lawrence F, McVirry and CJaire Cressman McVlrry,
et al., and recorded in the Office of the Recorder of Deeds in and (or Cumberland County,
Pennsylvanla at Mortgage Book 922 Page 325.
PROVIDED ALWAYS, and this Insr:nunent is executed upon the express
condltion that, II Mortgagor pays to Mortgagee the principal sum, the interest thereon and
!~o,.1121 fAtE 338
.2.
..
\
all other sums payable by MOI1g-agor 10 MOl1gagee as are secured hereby, in accordance
with the provisioN of the Notes and this Mortgage, at the times and in the manner
specified, without deduction, fr:Iud or delay, and MOl1gagor perfonns and complies with
all the agreemenu, conditions, coven.anu, provisions and stipulations contained therWl,
then this Mortgage and the estate hereby granted shall cease and bel:ome void.
THIS MORTGAGE is executed and delivered subjel:t to the following
covenanu, conditions and agreemenu and Mortgagor covenanu, WllIT3I1U and agrees as
follows:
(1) The MOl1gagor Iw good. valld and marketable title to the
Premises. The MOl1gagor Iw the right, full power and lawful authority to
grant, convey, bargain, sell, alien, enfeoff, release, confirm and mOl1gage the
same to the Mortgagee in the manner arid form henilit done. The Premises
are free and dear of all liens and encumbrances except those of record which
were previously disclosed in writing to the MOl1gagee. The MOl1gagor will
warrant and defend the righu and title of MOl1gagee to all of the Premises
against aU claims.
(2) The Notes secured hereby shall evidence, and this MOl1gage
shall be seamty for, the prindpal sum together with applicable interest, costS
and f~. This MOl1gage shall further be security for the perfonnance of
Mortgagor of all agreements, conditiON, covenanu, provisions and
undertakings in the Notes and this MOl1gage.
(3) From time to time, until the indebtedness secured hereby is
fully repaid, MOl1gaf,or shall: (a) pay and discharge, when and as the same
shall become due and payable, all tilles, assessmenu, sewer and water f'enU,
and any and all other charges, claims and liens assessed, levied, Imposed or
created, from time to time, upon the Prenises or any part thereof which shall
or might have priority in lien, payment or distribution to the debt secured
hereby; (b) pay all ground rents reserved from the Premises and pay and
discharge all mechanics' liens which may be filed against the PTemises which
shall or might have priority in lien or payment to the debt secured hereby;
and (c) pay and discharge any documentary stamp or other tilt, including
interest and penalties thereon, if any, now or hereafter becoming payable on
the Notes.
(4) In the event MOl1gagor neglects or refuses to pay any charges
mentioned herein, MOl1gagee may do so, add the cost thereof to the tota!
principal sum secured hereby, and collect the same as a part or said tota!
principal sum, together with Interest thereon at the rate provided herein.
.3.
roo,.1121 mE 339
,," '1!1 _-. ,
..~ ..,'
\
-' .
...
. \
(5) Mortgagor covenants and agrees not to cre:ue, nor permit to
acaue, upon all or any pm or the PTmlise:., any debt, lien or chaIie whith
would be prior to, on a panty with, or junior to the lien of this Mortgage,
without the prior written cOlUent of Mortgagee.
(6) Mortgager shall not suffer or permit the PI=1ises, or any
portion o( the Premises, to be used by the public, as such, without restriction
or in such manner as might reasonably tend to impair Mottgagor's title to the
Premises or any portion o( the Premises, or In such manner as might
reasonably make possible a c1aim or claims o( advme usage or advene
possesslon by the public, as such, or o( implied dedication o( the Premises or
any portion o( the Premises.
(7) The occ:urrence o( anyone or more o( the (ollowing events
shall, at the option of Mortgagee, cOlUtitute an event of default hereunder.
(a) The (ailure o( Mortgagor to pay any installment
o( principal or interest on the Notes to Mortgagee, after the
same becomes due and payable, subjea to written notice and
grace periods provided (or in the Notes.
(b) The (ailure o(Mortgagor to pay any other charge,
premium or sum required to be paid in the Notes or In this
Mortgage, within fifteen (15) days after the same becomes due
and payable.
(c) The failure of Mortgagor to perionn or observe
other agreements in the Notes or in this Mortgage within
fifteen (15) days after the same Is to be performed or
obse:ved; provided, however, that if Mortgagor bas proceeded
and Is making a good faith effort to proceed to cure said
default, and has provided written notice thereof to Mortgagee,
within the said fifteen (15) day period, wblch describes in
detail the procedure or action being taken and the reasonable
time period required to cure said default, the provisions hereof
shall be delayed while Mortgagor attempts to cure said default.
(d) Any assignment for the benefit of Mortgagor's
creditors, or other proceedings Intended to liquidate or
rehabilitate Mortgagor's estates, or Mortgagor's becoming
Insolvent within the meaning o( the federal bankruptcy law,
(e) The OCC\UTence of an event of default as defined
in the Notes.
... -
tood 121 fAtE 340
. ,._,' " -'t"
....
. \
(0 The tranSfer, conveyance or other disposition of
title to or equitable interest in the Premises or any portion
thereof under and subjea [0 this Mortgage, e:tcept with the
expressed written consent of the Mortgagee. A transfer of any
Interest in the Premises by Mortgagor under and subjea to this
Mongage, without the expressed written consent of Mortgagee
sball be deemed to violate this prohibition against transfer.
The Mongagee agrees to release all or any part of the Premises
from the Uen of this Mortgage upon the payment of the
amounts set forth in Paragr.lph 19.
(g) The occurrence of an Event of Default under any
subordinate mortgage, smmty agreement or similar document
creating a Uen. .
(8) If one or more of the events of default referred to in paragraph
(7) hereof sbal1 occur, the Mortgagee may declare a default hereunder. In
wbich event:
(a) The entire unpaid balance of the principai sum
and all other sums se=d by this Mongage, together with
unpaid interest thereon, shall become immediately due and
payable without further notice or demandj and
(b) Mongagee may forthwith institute an action of
mortgage foreclosure, or take such other action, as the law
may allow. at law or in equity, for the enforcement hereof and
realization on the mortgage security or any other sec'Urity
wbich is herein or elsewhere provided for, and proceed thereon
to flnal judgment and eltetUtion thereon for the entire unpaid
balance of the principal sum advanced, with interest at the rate
provided in the Notes, and all other SUIIU secured by this
Mongage, all casu of suit, interest as provided in the Notes on
any judgment obtained by Mongagee from and after the date
of any Sheriff's Saie of the Premises (which may be sold in one
parcel or in such parcels, manner or otherwi5e as Mortgagee
shall elect) until acroal payment is made by the Sheriff of the
full amount due Mortgagee, and reasonable attorneys' fees for
collection.
(c) Mongagee or its agent may forthwith enter into
possession of the Premises, with or without legal action, by
force If necessary. and coUect rentals and enforce leases or
other agreements affecting the Prwilies, but without being
.5.
roCr.1121 mE 3-11
~
. \
deemed to have affirmed such leases or agre=ents, coUea all
rents and profits therefrom. and pay all costs o( coUecrion and
administration expense, taxes, water aod sewer rena, ~
and claims, insur:mce premiums, all other carrying charges
(Including but not limited to agent's compensation and (ees
and com o( coun:sel and ~eiven), expenses o( mainIenance,
repair or restoration o( the Pronises and the principal and
Int~ hereby secured, In such order and amountS as
Mortgagee In Mortgagee's discretion may elea. Mortgagee or
Its agent may have a receiver appointed to enter Into
possession o( the Premises, coUea the rents and profits
therW'om. and apply the same as the coun may direct.
Mortgagee shall be Uable to account only (or rents and profits
actUally ~elved by Mortgagee. For such purposes Mortgagor
hereby in'evocably authorizes and empowen any attorney of
any court o( record to appear (or Mortgagor and on its behalf
In any action o( ejeconent and to confess judgment therein
against Mortgagor and in favor of the Mortgagee (or possession
of the Premises, whereupon a writ may (orthwith be isSlled (or
the immediate possession of the PrmUses, and (or reasonable
attorneys' (ees, if necessary, without any prior writ or
proceeding whatsoeVer; and (or so doing this Mortga~ or a
copy hereof verified by affidavit shall be a sufficient warrant.
(d) The authority granted herein to appear for
Mortgagor and on its behalf and to confess judgment shall not
be exhausted by any exercise thereof, but shall continue, and
may be exercised as aforesaid, from time to time, and at all
times until payment of the amounts secured hereby and
performance of the obUgations hereunder.
(e) Mortgagee shall have the right to set off all or
any part of any amount due by Mortgagor to Mortgagee under
the Notes, this Mortgage or otherwise, against any
Indebtedness, Uabilities or obUgations owing by Mortgagee for
any reason and in any capacity to Mortgagor, Including any
obUgation to dlsbune to Mortgagor or its designee any funds
or other propetty on deposit with or otherwise In the
possession, control or custody of Mortgagee.
(9) No right or remedy herein conferred upon or reserved to the
Mortgagee is Intended to be exc1wive o( any other right or remedy, but each
shall be cumulative, concurrent and In addition to every other right or
remedy herein given or now or hereafter existing at law or In equlty or by
.6.
eoo'i.1121 fACE 3,12
..
. \
StaNte. In order to entitle the Mongngee to exe,l'Cse any right or remedy
reserved to it herein, it shall not be necessary to give any notice, other than
such notice as may be herein e.'qlressly required.
(10) No waiver of any event of default hereunder, whether by the
Mortgagor or the Mortgag~ shall extend to or affect any subsequent event
of default or impair any rights or remedies consequent thereon. No delay or
omission of the Mongagee to exercise any right or remedy accruing upon any
event of default shall impair any such right or remedy or shall be conmued
to be a waiver of any right or remedy given hereunder, which rights and
remedJes may be exercised as often as may be deemed expedient by the
Mortgagee.
(11) [f Mortgagor should fail to pay real estate taxes or other taxes,
assessments, water and sewer rents, charges and claims, sums due under any
prior Uen or insurance premiums, or fail to complete constrUction of any
improvements or make necessazy repain, or permit waste, or fail to cure any
default under any prior or subordinate Uen, Mortgagee, at its election and
without notice to Mortgagor, shall have the right to make any payment or
expenditure and to take any action which Mortgagor should have made or
taken, or which Mortgagee deems advisable to protect the security of this
Mortgage or the Premises, without prejudice to any of Mortgagee's rights or
remedies available hereunder or otherwise, at law or in equity, All such
sums, as well as costS, advanced by Mortgagee pursuant to this Mortgage
shall be due immediately from Mortgagor to Mortgagee, shall be se1:Ul'ed
hereby and the Uen thereof shall relate back to the date of this Mortgage,
and shall bear Interest from the date of payment by Mortgagee until the date
of repayment at a rate equal to the lesser of (i) a rate five pen:ent (5%)
above the rate specified In the Note or (ii) the highest rate permitted by
appUcable law.
(12) In the event that all or any portion of the Premises is
condemned by any lawful authority for any pubUc or quasi-pubUc use or
purpose or sold under threa t thereof, all proceeds shall be appUed toward the
prepayment of the amounts secured hereby. Any excess proceeds shall be
paid to Mortgagor. In the event that all or a significant portion of the
Premises is so condemned or sold so as to render the Premises unsuitable for
Mortgagor's continued use, Mortgagor shall have the right to prepay the
remaining amounts 5el:Ured here by in full, incl udlng any premi urn set forth
In the Notes. No settlement for the damages sustained thereby shall be made
by Mortgagor without Mortgagee's prior wrirten approval thereof. If the
amount of an lnltial award of damages for the condemnation is insufficient
to pay the amounts secured hereby in full, Mortgagee shaU have the tight to
file an appeal or such other legal proceedings as legal counsel may advise to
.7-
~.iiif.1121 PACt 343
...
\
be appropriate under the cin:umstances in the name o( Mortgagor or o(
Mortg'8gee ((or which action Mortgagee or such counsel as it chooses is
hereby Irrevocably appointed attorney.in-(act (or Mortg'8gor), and to
prosecute same to final conclusion or otherwise dispose thereo(, in wbich
event the expenses o( tht appeal or other appropri.ate lepl proceedings,
including but not limited to counsel (ees, shall be first paid out o( the
proceeds, and no credit shall be given on account o( the amoUl1IS 5el:U1"ed
hereby other than a cred.lt (or the amount, If any, whereby the final proceeds
exceed all such expenses. Nothing in this covenant or e1sewbm! in this
Mortpge shall limit righu otherwise available at law to Mortpgee.
including but not limited to righu to intervene as panies to any
condemnation proceeding. Any and all compensation. awards, damages,
t'1.lm., righu o( action and proceeds hereunder an! hereby assigned by the
Mortpgor to the Mortgagee, to be appUed as herein provided. The
Mortpgor agrees to exea!te any assignment agreements that the Mortpree
may require in furthenmce thereof.
(13) (a) Mortgagor hereby warranu and coven.anu that,
to the best of iu knowledge:
(l) The present use of the Premises Is,
and any currently contemplated future use o( the
Premises will be in substantial compliance with
all appUcable (edual and state environmental
laws and regulations and no environmental
Uability exisu on or in connection with the
Premisesj
(U) There are no hazardous substam:es
located on the Premises (except as disclosed in
writinJ to MortPlee), and any such baz.ardous
subnances have been properly transported,
stored and/or disposed o( at other locations;
(ill) Mortgagor has or will obtain all
permiu or authoriLations under environmental
laws or regulations nec~ to carry on their
business(es), has or will file all required
notilications and plans and has or will have such
Wormation and plans available as required
under environmental laws or regulations, and are
In compUance with all appUcable environmental
laws or relUlations, Includlnl but not Umlted to
deed ac:knowledlement required by the
.8.
i'"o"l121 ,m 3H
..
\
Pennsylvania Solid Waste Managrment Act, 35
P.S. ~6018,405 and the Pennsylvania Hazardous
Shes CleaLup Act, 35 P,5. ~6025.51:!(b);
(Iv) Mortgager is not aware of nor bas
Mongagor received any claims, demands, orden,
notices of violation, notices of intent to file a
c:laim, demand, order, lawsuit, notices of
deficiencies, or requestS (or infonnadon relating
to actions based upon environmental laws or
regulations;
(v) Mortgager bas received no notice
that the subject real propertY or assets have been
designated as a site on the National Priorities
Ust or similar state list, or have been or are the
subject of any removal or response action,
private or governmental, under the
ComprehellSive EnvirollJDentaJ Response,
Compensation or Uabiliry Act, as amended, or
the Pennsylvania Hazardous Sites Cleanup Act or
any similar state or federal law, and that no
requestS have been ~eived to provide
information or participate in any stUdy, rmledial
design or response action under such laWSj
(vi) Mortgager will exucise due care
with respect to any substances, hazardous or
otherwise, which may be located on, disposed of,
or placed on the Premisesi
(vii) Mortgager sballuse, and shall use
reasonable dforu to cause each employee, agent
or contractor to use reasonable effons to comply
in all material respects with any applicable
environmental laws or reglllationsj provided,
however, that this provision shall not prevent the
Mongagor from contesting, in good faith and
with reasonable diligence, the valldJry or
applicadon of such laws by appropriate
proceedlng'5;
(vili) Mongagor has not, by act or
omission, caused or contributed to the release or
- 9.
&iJod 121 PACt 3M)
...
\
(c)
corporation.
association;
The word "person" shall mean individual,
parmership, joint venrure or unincorporated
(d)
The use of any gender shall include all genders;
(e) The singular number shall include dle plural and
the singular as the context may require;
(f) All agreements, conditions, covenants, provisions,
stipulations, WllITiU1tS of attorney, authorizations, waivers,
releases, options, undertakings, rights and benefit made or
given by Mortgagor shall bind and. affect all persons who are
defined as "Mortgagol" as fully as dlough all of dleIn were
specifically rwned herein wherever the word "Mortgagol" is
used.
(19) Upon the sale of all or any part of the premises by the
Mortgagor, the Mortgagee agrees [0 release any part of dle Premises from
the Uen of this Mortgage upon the payment to Mortgagee at settlement on
the sale of all or any part of the Premises of Twenty-live Thousand Dollars
(525,000.00) per a~ rounded to the nearest tenth of an acre. Said
payments shall be appUed to the principal balance of the Mortgage Note and
shall be paid at the Settlement of the conveyance of all or part of the
Premises. Mortgagee agrees that this Mortgage shall be satislied and an
appropriate satisfaction document shall be promptly ~~ecuted by the
appropriate officers of the Mortgagee and tiled in the Office of the Recorder
of Deeds In and for Cwnberland County, Pennsylvania upon the payment in
full of the principal and accrued interest due on the Mortgage Note.
IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be
executed on its behalf by its duly authorized general parmers as of the day and year tint
above mentioned.
MORTGAGOR:
WOOD'S DRIVE ASSOCIATES
By: Wood's Drive, mc. - General Parmer
?jfJ :?3-/:~der.t
By: Commerce Drive, mc. - Ger.eral Partner
Br~t:if ,/"-
Pteiider.t
. 11 -
~ocd121 mE 3,17
..
\
COMMONWEALTH OF PENNSYLVANIA)
COUNiY OF d~ ~
55:
On thU the .1J #'day o( ~ . 1993, before me a Notary Public, the
undersigned officer, personally appeared Joseph 0, 5nyder who aclmowledged hinueU 10
be the President of Wood's Drive, Inc. and Commerce Drive, [nc" Pennsylvania
corporations, which are the general partners of Wood's Drive Associates and that he u
such President, being authorized to do so, executed the foregoing Mol'tpge (or the
purposes therein contained by signing the name of the corporation by himself as President.
~~~'.
olrbV
y Commission Expires:
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NOT.o..RIAl.Wl
No'lNA J. SANGfM. t-.y I"..Ci<
Q/ 01 ...m.""",, 0..."," c.:.""Y
M'I ~""'UIO" E.JDI'H .lCl'I ", ....
I HEREBY CERTIFY that the precise address of the Mortgagee and person
entitled 10 interest on this Monpp Is:
Homestead Federal Savings Assodation
120 South UnJon Streel
Middletown, PA 17057
-,.-
COMMONWEALTH OF PENNSYLVANlA)
) 55:
COUNTi OF CUMBERU.ND )
Recorded In the Office (or Recording of Deeds In and for Dauphin County In
Mongage 800k --' Volwne ---' Page _'
WITNEss my hand and leal of Office this _ day o(
.1993.
Recorder
iood121 rAGE 3.18
...
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E:O-lmrr "A"
Tmcr No.1
ALL 11-IA T CUT AIN piece or parcel ofland situate In Sllver Spring Township,
Cumberland County, Pennsylvania, being more particularly bounded and desaibed as
follows:
BEGINNING at a point on the southern right-of.way line of U.S. Route Ill,
said point being located and re!ennced westwardly a distance of 1423 feet from Village
Road: thence South 21 degrees 01 minute 30 seconds East, a distance of 257,21 f~t to a
point; thence South 28 degrees 03 minutes 30 seconds West, a distance of 50,84 feet to
a point; thence 50uth 73 degrees 56 minutes 30 seconds West, a distance of 469.81 feet
to a point; thence South 33 degrees 21 minutes 30 seconds East, a distance of 380.17 feet
to a point; thence South 1 degree 54 minutes 30 seconds West, a distance of 118.00 feet
to a point; thence North 82 degrees 04 minutes East, a distance of 349.89 feet to a point;
thence South 5 degrees 05 minutes 53 seconds East, a distance of 285,13 feet to a point;
thence North 84 degrees 16 minutes 32 seconds East, a distance of 498.58 feet to a point;
thence along land now or late of Vance McCormick South 13 degrees 02 minUtes East, a
distance of 50.48 f~t to a point; thence along the same South 54 degrees 16 minutes 34
seconds West, a distance of 505,53 feet to a point; thence along the same South 5 degrees
05 minutes 53 seconds East, a distance of 1001.29 feet to a point; thence along land now
or late of Eppley North 63 degrees 04 minutes 29 seconds West a distance of 561.14 feet
to a point; thence along the same South 46 degrees 48 minutes 11 seconds West, a
distance of 1021.83 feet to a point; thence along the same North 47 degrees 13 minUtes
10 sel:onds West, a distance of 1048.54 feet to a point; thence along the same South 42
degrees 44 minutes 25 seconds West, a distance of 168.03 feet to a point; thence along
land now or late of the Stewart Estate North 44 degrees 32 minutes 36 seconds West, a
dlstance of 1101.09 feet to a point; thence along land now or late of Cressman North 66
degrees 58 minutes East, a distance of 1719.0 feet to a point; thence along the same North
70 degrees 13 minutes East, a distance of 589.50 feet to a point; thence along the same
Nonh 33 degrees 17 minutes West, a distance of 212.36 feet to a point on the southern
right-of.way line of U,S. Route #11; thence along the same on the arc of a curve curving
to the right having a radius of 3819,80 feet a distance of 193.95 feet to a point of
tangency; thence along the southern right-of.way line of U.S. Route #11 North 75 degreu
44 minutes 30 seconds East, a distance of 420,0 feet to a point the place of BEGINNING.
Said tract containing ~! 9 acres,
Tract No.2
All that certain piece or parcel of land situate in Silver Spring Township,
Cumberland County, Pennsylvania, more particularly bound and described lU follows, to
wit:
bDDK1121 /~CE 3,19
...
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BEGINNING at a point in Legislative Route No. 34 known as "Carllsle Pike"
at Une of land5 now or formerly of James A. PotteJger and Emma F. potteigu, his wife;
thence along said lands of Potteiger South 23 de~ 15 minUtes East, a distance of 212
feet to a point; thence along land5 now or fonnuly of Della J. 8ergnu, South 70 degrees
15 minutes West, a distance of 425 fef!t to a point; thence continuing along said lands now
or fonnuly of Bergner, South 67 degref!S West a distance of 50 fel!t to a point; thence
along lands now or fonnuly of Paul L Cressman and Lenora C. Cressman, his wife, North
23 degrees West, a dinance of 208 fei!t to a point in nid Legislative Route No. 34,
"Cullsle Pike" lint mentioned above; thence along a line in said Legislative Route No. 34
"Cullsle Pike", North 67 degrees East, a distance of 50 fel!t to a point in the same; thence
continuing in said Legislative Route No. 34, "Carllsle Pike", along a curve to the right
having a radius of 3,819.8 fei!t, an arc distance of 425 fei!t to a point in the same at line
of lands now or formerly of James A. Potteigu and Emma F. potteigu, his wife, the point
and place of BEGINNING.
Containing approximately 2.28 acres.
TRAcrS NOS. 1 AND 2 BEING the same premises which Robert D. Hulton
and Dorothy M. Hulton, his wife, by their Del!d dared August 29, 1988 and r~orded
Septembu I, 1968 in the Office of the Recordu of Deeds in and for Cumbuland County,
in Deed Book N, Volume 33, Page 1050, granred and conveyed unro Wood's Drive
Associates.
Tract No.3
AU iHAT CERTAIN parcel or tract of real estare situare in Silvu Spring
Township, Cwnberland Counry, Pennsylvania, being more particularly bounded and
described as follows:
BEGINNING ar a poinr on the southern legal right-of:way line of Carllsle Pike
(LR. 34) at the northwest comer of Lot No.2 on the bue.inafter described Subdivision
Plan; thence along the western line of said Lot No.2 South 23 degrees 00 seconds East a
distance of 157,68 feet to the northern line of 1and.s now or formerly of Robert D. Hulton
and Dorothy M. Hutton, his wife; thence along the northern line of said lands South 67
degrees 00 minutes West a distance of 568.06 feet ro the eastern line of lands now or
formerly of Alexander Srewan; thence along the easte..'u line of said lands North 44 degrees
17 minures West a distance of 170.90 feer ro a poinr on the southern legal righr.of-way
Une of Carlisle Pike (LR. 34); thence along the southern legal right-of-way line of Carlisle
Pike (LR. 34) North 67 degrees 08 minutes 30 s~onds East a distance of 630.10 feet to
a poinr at the northwest comer of Lot No.2 on the he.re.inafrer desC10ed Subdivision Plan,
the point and place of BEGrNNlNG.
Containing 2.18 acres.
~uoi1121 PAtE 350
...
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, BEING Lot No.1, Finl1I Subdivision PIWl for Paul L Cressman, Jr., et aJ.
dated November 2S, 1975, revised Februar; 24, 1976, retorded in the Office of die
Retorder of Deeds of Cumberland County in Plan Book 28, Page 41.
Tract No, 4
ALL 11iA T aRT Am parcel or tract of real estate siruate in Silver Spring
Township, Cumberland County, Pennsylvania, being more particularly bounded and
described as foUoW1:
BEGINNING at a point on die southern legal right-of.way line of Carlisle Pike
(LR. 34) at the northeast comer of Lot No. 2 on die hereinafter descibed Final
Subdivision Plan; dlence along die eastern line of said Lot No. 2 Saudi 23 degree 00
setonds East a distance of 146.94 feet to a po,int on die northern line of lands now or
fonnerly of Roben: D. Hutton and Dorodly M. Hutton, his wife; dlence along die northern
line of said land North 67 degrees 00 minutes East a distance of 800,24 feet to a point on
the southwest corner of lands now or fonnerly of Frederick R. Mummaj thence along the
western Une of said land North 23 degrees 00 seconds West a distance of 145.00 feet to
a point on the southern legal right-of-way line of Carlisle Pike (LR. 34); thence along the
southern legal right-of-way of Carlisle Pike (LR. 34) South 67 degrees 08 minutes 30
setonds West a distance of 800.24 feet to a point at the northeast corner of Lot No.2 on
the hereinafter descibed Final Subdivision Plan, the point and place of 8EGrNNtNG.
CONTAINING 2.68 aaes.
BEING Lot No.3, Final Subdivision Plan for Paul L Cressman, Jr., et al,
dated November 2S, 1975, revised February 24, 1976, retorded in die Office of the
~corder of Deeds of Cumberland County in Plan Book 28, Page 41.
TRAcrS NOS. 3 AND 4 BEING the same premises which Lawrence F. McVitty
and Claire Cressman McVitty, his wife, Earl N. Stauffer Wld Hazel CresSIIW1 Stauffer, his
wife, and Paul L Cressman, Jr. and Thelma M. Cressman, his wife, by their Deed dated
August 29, 1988 and recorded November 9. 1988 in the Office of the Recorder of Deeds
in and for Cumberland County in Deed 800k Q, Volume 33, Page 833 granted and
conveyed unto Wood's Drive Associates.
LESS AND EXCEPT from Tracu 1, 2, 3 and 4 all those Certain tl'acts or
parcels of land siruate in Silver Spring Township, Cumberland County, Pennsylvania
previously conveyed OUt ofTracu 1,2,3 and 4 by Wood's Drive Assodates desc:n'bed and
designated as foUoW1:
(l) Lor No, 3 on a Limited Final Subdivision Plan of 87.428 acres
prepared for Wood's Drive Associates recorded in Plan Book 61, Page 60
more particularly described in a Deed by and between Wood's Drive
Assodates as Grantor and Cumberland Valley A.ssodates as Grantee dated
August 16, 1990 and recorded September 14, 1990 in the Office of the
--, 1121 r~c( 351
&OO~
...
~
~cordu of Deeds in and for Cumberland County in Deed Book T, Volume
34, at Page 981.
eU) Lot 2A on the Final llmited Resubdivision Plan for Wood's
Drive Associates, as descibed in a Deed dated September 25, 1992 and
recorded Septembu 25, 1992 by and between Wood's Drive Associates, a
Pennsylvania general parmership, and Pennsylvania Power & Light Company,
a Pennsylvania corporation, recorded in the Office of the Rl!cordu of Deeds
in and for Cumberland County in Deed Book X. Volume 35, Page 138.
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Exhibit E
MORTGAGE
mls MORTGAGE, daled as of the 3rd day of March, 1993, by and between
~PORTING GREEN ASSOCIATES, a Per.nsylvania general parmenhip having an office at
65iO Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055 (the
"Mortgagor")
AND
RESOLUTION TRUST CORPORATION, IN ITS CAPACI1Y AS CONSERVATOR FOR
HOMESTEAD FEDERAL SAVINGS ASSOCIATION, SUCCESSOR [N [NTEREST TO
HOMESTEAD SAVINGS ASSOCIATION, a pennsylvania corporation. with offices at 120
South Union Streel, Middlelown, Dauphin Counry, Pennsylvania 17057 (hereinafter the
"Mortgagee").
Recilals
Mortgagor has e.:'Ceculed and delivered 10 Mortgagee a nOle daled December
1, 1992 (the "Mortgage Note"), under which the Mortgagor is obligated 10 pay the
Mortgagee the aggregale principal sum of One Million Seven Hundred Eighty SL'C Thousand
Nine Hundred SL'Cty Two and 58/100 Dollars..(Sl,786,962.58l,lawtui money or the Uniled-
Slates of Ame-rica, with interest thereon payable at the rat~ and times, in the manner ar.d
according to the le....ms and conditions sel forth in the Mortgage Note (hereinafter
sometimes referred 10 as the "Nole"), which Mortgage Note is incorporated herein by
reference.
NOW InEREFORE, in consideration of the said indebledness and as seC"~ry
for the payment of the same and inleresl as aforesaid, and all other sums payable lmder
the terms of the Note and this Mortgage, according to their respective te."lTlS and
conditions, and for perfonnance of the agreements, conditions, covenants, provisions and
stipulations contained therein and herein, Mortgagor has granled, conveyed, bargair.ed,
sold, aliened, e.nfeoffed, released, confirmed and mortgaged, and by these presents does
hereby granl, convey, bargain, sell, alie.'1, enfeoff, release, confinn and mortgage unlO
Mortgagee, its successors and assigns, all those certain tracts or parcels of land siruate in
the Township of Silver Spring, Cumberland Counry, Pennsylvania, more particularly
bounded and described in Exhibil "A" attached hereto and by this reference made a part
hereof. -
......--'
TOGETHER WITH all of the Mortgagor's right, title and interest now owr.ed
or hereafter acquired in:
(1) all buildings and other improvements erecled or hereafter
erecled thereon; and
(2) all building malerials, fixtures, building machinery and building
equipmenl delivered on sile 10 the real esl3le during lhe course of, or in
b~cd 121 fACt :J 80
5::3581';'
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COMection with, consll'\lction of, or recollSll'\Iction of, or remodeling of any
buildin~ and improveml!IllS; and
(3) any and all easeml!IllS, righlS of way, tl!Ill!IllenlS, hereditaments
and appurtenances belonging to the re:uestate or any pan thereof hereby
mortgaged or intended so to be, or in any way appertaining thereto, and all
streets, alleys, passages, ways, water courses, and all easeml!l1ts and
covenanlS now e:cisting or hereafter created for the benefit of the Mortgagor
or any subsequent owner or tenant of the mortgaged re:uestate over gt'OWld
adjoining the mortgaged re:uestate and all rigblS to enforce the maintenance
thereof, and all other righu, liberties, and privileges of whatsoever kind or
character, and the revernollS and remainders, income, renlS, issues and
profits arising therefrom. and all the estate, right, title, Interest, property,
possession, claim and demand whatsoever, at law or in equity, of the
Mortgagor in and to the re:uestate or any pan thereof.
(4) All proceeds of the conversion, volWltary or involuntary, of any
of the foregoing into cash or liquidated claims, including without limitation,
proceeds of insur.mce and condemnation awards.
All of the above.mentioned land, buildings, improvements, fixtures.
machinery, equipment, tl!Ill!!Ill!IlIS, hereditaml!.'l1S and appurtenances, and other property
interests owned by Mortgagor is hereinafter collectively referred to as the "ptemises",
TO HAVE AND TO HOLD the premises hereby conveyed or ml!.'ltioned and
intended so to be, unto Mortgagee, ilS successors and assigns to (IS own proper use and
behoof fotever.
PROVIDED ALWAYS, and this instrUIllent Is l!.'tecuted upon the l!.'Cpress
condition that, if Mortgagor pays to Mortgagee the principal sum, the interest thereon and
all other sums payable by Mortgagor to Mortgagee as are secured hereby, in accordance
with the provisions of the Note and this Mortgage, at the times and in the manner
specified, without deduction, fraud or delay, and Mortgagor perfomu and compiles with
all the agreemenlS, conditions, covenants, provisions and stipulations contained therein,
then this Mortgage and the estate hereby granted shall cease and become void.
TI-lIS MORTGAGE is l!.'tecuted and delivered subjett to the following
covenants, conditions and agreements and Mortgagor covenants, warrants and agrees as
follows:
(1) The Mortgagor has good, valid and marketable title to the
Premlses. The Mortgagor has the right, full power and lawful authority to
grant, convey, bargain, sell, allen, enfeoff, release, confinn and mortgage the
same to the Mortgagee in the manner and form herein done. The Premises
.2.
~ 1121 fm 381
535818
are free an 1 clear of all liens and encumbrances e.'tcept those of record which
were previously disclosed in writing to the Mortgagee. The Mortgagor will
warrant and defend the rights and tide of Mortgagee to all of the premises
a gains t all claims.
(2) The Note secured hereby shall evidence, and this Mortgage
shall be security for, the principal sum together with appliCllble interest, costs
and fees. This Mortgage shall further be security for the perfonnance of
Mortgagor of all agreements, conditions, covenants, provisions and
undertakings in the Note and this Mortgage.
(3) From time to rime, until the indebtedness seCUll!d hereby Is
fully repaid, Mortgagor shall: (a) pay and discharxe, when and as rh~ ."m~
shall become due and payable, all taxes, assessments, sewer and water rents,
and any and all other charges, claims and liens assessed, levied, imposed or
created, from time to time, upon the Premises or any part thereof which shall
or might have priority in lien, payment or distribution to the debt secured
hereby; (b) pay all ground rents resented from the Premises and pay and
discharge all mechanics' liens which may be filed against the Premises which
shall or might have priority in lien or payment to the debt secured hereby;
and (c) pay and discharxe any documentary stamp or other tax, including
interest and penalties thereon, If any. now or hereafter becoming payable on
the Note.
(4) In the event Mortgagor neglects or refuses to pay any charges
mentioned herein, Mortgagee may do so, add the cost thereof to the total
principal sum secured hereby, and collect the same as a part of said total
principal sum, together with interest thereon at the rate p'rovided herein.
(5) Mortgagor covenants and agrees not to create, nor permit to
accrue, upon all or any part of the Premises, any debt, lien o~e which
would be prior to, on a parity with. or junior to the lien of Mortgue.
'Without the prior wntten consent at Mortgagee.
--- -
(6) Mortgagor shall not suffer or permit the ~es, or any
portion of the Premises, to be used by the public, as such, without restriction
or in such manner as might reasonably tend to Impair Mortgagor's tide to the
Premises or any portion of the Premises, or in such manner as might
reasonably make possible a claim or claims of adverse usage or adverse
possession by the public, as such, or of Implied dedication of the Premises or
any portion of the Premises,
(7) The occurrence of anyone or more of the following events
.hall, at the option of Mortgagee, constiNte an event of default hereunder:
.3.
~~c~ 1121 fm 38?
535810
(a) The failure of Mortgagor to pay any Installment
of principal or interest on the Note to Mortgagee, after the
same becomes due and payable, subject to written notice and
grace periods provided for in the Note.
(b) The failure of Mortgagor to pay any other charie,
premium or sum required to be paid in the Note or in this
Mortgage, within fifteen (15) days aiter the same becomes due
and payable.
(c) The failure of Mortgagor to perfonn or observe
other agreements in the Note or in this Mortgage within fifteen
Q5) .:1.' baiter the same is to be performed or observedj
proVl e, owever, that if Mortgagor has proceeded and is
making a good faith effort to proceed to cure said default, and
has provided written notice thereof to Mortgagee, within the
sald fifteen (15) day period, which desaibes in detail the
procedure or action being taken and the reasonable time period
required to cure said default, the provisions hereof shall be
delayed while Mortgagor attempts to cure said default.
(d) Any assignment for the benefit of Mortgagor's
creditors, or other proceedings intended to liquidate or
rehabilitate Mortgagors estates, or Mortgagors becoming
Insolvent within the meaning of the federal bankruptcy Law.
(e) The occurrence of an event of default as defined
in the Note.
(0 The tranSfer, conveyance or other disposition of
tide to or equitable interest in the Prenilies or any portion
thereof under and subject to this Mortgage, e.'(cept with the
expressed written consent of the Mortgagee. ^ tranSfer of any
interest in the premises by Mortgagor under and subject to this
Mortgage, without the expressed written consent of Mortgagee
shall be deemed to violate this prohibition against tranSfer.
The Mortgagee agrees to release all or any part of the Premises
from the lien of the Mortgage upon the payment of the
amounts set forth in Paragraph 19.
(g) The occurrence of an Event of Default tmder any
subordinate mortgage, security agreement or simllar document
creating a lien.
.4.
5358:!O
tooi1121 f~CE 383
(8) [f one or more of the events of default referred to in paragr.lph
(7) hereof s1uill occur, the Mortgagee may declare a default be..-eunder. In
which event:
(a) The entire unpaid balance of the principal sum
and all other sums secured by this Mortgage, together with
unpaid interest thereon, shall become immediately due and
payable without further notice or demand; and
(b) Mort ee ma institute an aedca of
mortPIll'! fnn! osure,.-9t take such other aC't1on, as e aw
may allow, at law or in equity, for the enforcement hereof and
realization on the mortgage security or any other security
which Is herein or elsewhere provided for, and proceed thereon
to final judgment and e.~ecution thereon for the entire unpaid
balance of the principal sum advanced, with interest at the rate
provided in the Note, and all other sums secured by this
Mortgage, all costs of suit, interest as provided in the Note on
any judgment obtained by Mortgagee from and after the date
of any Sheriff's Sale of the Premises (which may be sold in one
parcel or in such parcels, manner or otherwise as Mortgagee
shall elect) until aCNal payment is made by the Sheriff of the
full amount due Mortgagee, and reasonable attorneys' fees for
collection; and
(c) Mortgagee or its agent may forthwith enter into
possession of the Premises, with or without legal action, by
force if necessary, and collect rentals and enforce leases or
other agreements affecting the Premises, but without being
deemed to have affirmed such leases or agreements, collett all
rents and profits therefrom, and pay all costs of collection and
administration e.'Glense, taxes, water and sewer rents, charges
and claims, insurance premiums, all other carrying charges
(including but not limited to agent's compensation and fees
and costs of counsel and receiven). e.'Glen.ses of maintenance,
repair or restoration of the Premises and the principal and
interest hereby secured, in such order and amounts as
Mortgagee in Mortgagee's discretion may elect. Mortgagee or
Its agent may have a receiver appointed to enter into
possession of the Premises, collect the rents and profits
therefrom, and apply the same as the coUrt may direct.
Mortgagee shall be liable to account only for rents and profits
aCNally received by Mortgagee. For such purposes Mortgagor
hereby irrevocably authorizes and empowen any attorney of
.5.
535821
~ucd 121 r,ICE 38~
any CoUIt of record to appear for Mortgagor and on itS behalf
in any action of ejecanent and to confess judgment therein
against Mortgagor and in favor of the Mortgagee for possession
of the Premises, whereupon a writ may forthwith be issued for
the immediate possession of the Premises, and for relISonable
attorneys' fees, if necessary, without any prior writ or
proceeding whatSoeVer; and for 50 doing this Mortgage or a
copy hereof verified by affidavit shall be a sufficient WamlIlt.
(d) The authority gr:mted herein to appear for
Mortgagor and on itS behalf and to confess judgment shall not
be e.'Ch.austed by any e.'tercise thereof, but shall continue, and
may be e.'tercised as aforesaid, from time to time, and at all
times until payment of the amounts secured hereby and
performance of the obligations hereunder.
(e) Mortgagee shall have the right to set off all or
any part of any amount due by Mortgagor to MortgagCl! under
the Note, this Mortgage or otherwise, against any
Indebtedness, liabilities or obligations owing by Mortgagee for
any reason and in any capacity to Mortgagor, including any
obligation to disburse to Mortgagor or itS designee any funds
or other property on deposit with or otherwise in the
possession, control or custody of Mortgagee.
(9) No right or re:nedy herein conferred upon or reserved to the
Mortgagee Is intended to be e.'tclusive of any other right or rl!ll1edy, but each
shall be cumulative, concurrent and in addition to evc.ry other right or
remedy herein given or now or hereafter e.-wting at law or in equity or by
statute. In order to entitle the Mortgagee to e.'tercise any ri:;ht or remedy
reserved to it herein, it shall not be necessary to give any notice, other than
such notice as may be herein e.'CpfCSsly required.
(10) No waiver of any event of default hereunder, whether by the
Mortgagor or the Mortgagee, shall extend to or affel:t any subsequent event
of default or impair any rights or rl!ll1edies consequenr thereon. No delay or
omission of the Mortgagee to e.'tercise any right or remedy accruing upon any
event of default shall impair any such right or remedy or shall be constrUed
to be a waiver of any right or remedy given hereunder, which rights and
remedies may be exercised as often as may be del!ll1ed e.'Cpedient by the
Mortgagee.
(11) [( Mortgagor should fail to pay real estate taxes or other taxes,
assessmentS, water and sewer rentS, charges and claims, swns due under any
.6.
iood121 fm 385
53582~
prior lien or lnsumnce premi~ or fnil to com pie Ie constrUction of any
trnprovernents or make necessarl repairs, or permit Wll5te, or fnillo cure any
default under any prior or rubo(dinale lien, Mortgagee, at its election and
without notice 10 Mortgagor, shall have the right 10 make any payment or
e..'tpendirure and to take any action which Mortgagor should have llUlde or
taken, or which Mortgagee deems advisable 10 protect the securiry of this
Mortgage or the Premises. without prejudice to any of Mortgagee's rights or
remedies available hereunder or otherwise. at law or in equiry, All ruch
sums. as well as costs. advarced by Mortgagee pursuant to this Mortgage
shall be due immedialely from Mortgagor [0 Mortgagee. shall be secured
hereby and the lien thereof shall relale back 10 the date of this Mortgage,
and shall bear inlerest from the dale of payment by Mortgagee until the date
of repayment al a rale equal 10 the lesser of (i) a rale five percent (5%)
above the rate specified in the Note or (ii) the highest rate permitted by
applicable law.
(12) in the event that all or any portion of the Premises is
condemned by any lawtul authonry lor any public or quasi.public use or
purpose or sold under threat thereof. all proceeds shall be applied toward the
~epayment of the amounts secured 'hereby, Any e..'tce.ss proceeds shall be
piifdl:o Mortgagor. In the evenrthat all or a significant portion of the
Premises is so condemned or sold so as to render the Pre..'t1ises unsuitable for
Mortgagor's continued use, Mortgagor shall have the right to prepay the
remaining amount.! secured hereby in full. including any premium set forth
in the NOle. No settlement for the damages swtained thereby shall be llUlde
by Mortgagor without Mortgagee's prior wrirten approval therellf. If the
amount of an Initial award of damages for the condemnation is insufficient
to pay the amount.! secured hereby in full. Mortgagee shall have the right to
liIe an appeal or such other legal proceedings as legal counselllUlY advise to
be appropriate under the circumstances in the name of Mortgagor or of
Mortgagee (for which action Mortgagee or such cOWlSel as it chooses is
hereby irrevocably appointed anorney.in-fact for Mortgagor). and to
prosecute same 10 final conclwion or otherwise dispose thereof. In which
event the expenses of the appeal or other appropriate legal proceedings,
Including but not limited to counsel fees, shall be first paid out of the
proceeds, and no credit shall be given on account of the amounlS secured
hereby other than a credit for the amount, If any, whereby the final proceeds
exceed all such e..'tpenses. Nothing In this covenant or elsewhere in this
Mortgage shall limit rights otherwise available at law to Mortgagee.
Including but not limited to rights to Intervene as parties to any
condemnation proceeding. Any and all compensation. awards, damages,
clalnu, rights of action and proceeds hereunder are hereby assigned by the
Mortgagor to the Mortgagee, to be applied as herein provided. The
- 7 .
ejCx 1121 f.\CE 386
5358::'3
designated as a site on the National Priorities
list or similar state list, or Iu1ve been or are the
subject of any removal or l'6ponse action,
private or governmental, under the
Comprehensive Environmental Response,
Compensation or Uabiliry Act, as amended, or
the pennsylvania Hazardous Sites Cleanup N:t or
any similar state or (ederal law, and that no
l'l!quests Iu1ve been received to provide
information or participate in any srudy, remedial
design or response action under such laws;
(vi) Mortgagor will exercise due care
with respect to any substances, hazardous or
otherwise, which may be located on, disposed of,
or placed on the Premises;
(vii) Mortgagor shall use, and shall use
reasonable efforts to cause each employee, agent
or concractor to use reasonable efforts to comply
In all material respects with any applicable
environmental laws or regulations; provided,
however, that this provision shall not prevent the
Mortgagor from contesting, in good (aith and
with reasonable diligence, the validiry or
application o( such laws by appropriate
proceedings;
(vili) Mortgagor has nor, by act or
omission, caused or contributed to the release or
threatened release of any hazardous substance
on the Premises; and
(ix) Mortgagor shall notify Mortgagee
and their successors in interest of any notice they
give to or receive from any entity relating to any
act or omission that could give rise to liabiliry
under any environmental law or regulation.
(14) All notices required or provided (or herein shall be In writing
and sent by certified mall return receipt requested. Subject to change by
such notice from the parry to be charged with such notice, notices shall be
addressed as (ollows:
.9.
tuo~1121 mE 388
5358~5
I
rP
(19) The Mortgagee agrees to release all or any part of the Premises
from the lien of this Mortgage upon the payment [0 Mortgagee of One
Hundred Thousand Dollan ($100,000.00) per acre, rounded to the nearest
tenth of an acre. Said payments shall be applied to the principal balance of
the Note and shall be paid at the Settlement of the conveyance of all or any
part of the Premises. Mortgagee agrees that this Mortgage shall be satisfied
and an appropriate satisfaction document shall be promptly executed by the
appropriate officers of the Mortgagee and filed in the Office of the Recorder
of Deeds in and for Cumberland County, Pennsylvania upon payment in full
of the principal and acaued interest due under the Note.
given by Mortgagor shall bind and affea all persons who are
defined B5 ''Mortgagor'' as fully B5 though all of them were
specifically named herein wberever the word "Mortgagor" is
used.
[N WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be
e."(ecuted on its behalf by its duly authorized general parmers as of the day and year first
. '1:..:t.Labove mentioned.
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MORTGAGOR:
SPORTING GREEN ASSOCIATES
By: PROVIDENCE DEVELOPMENT
ASSCQATES, a Pennsylvania limited
partne...~hip . Gl!lleral Parmer
By: Providence Mill, [nc.,
General Parmer
~~/~~~
Presid . t
By:
WIllOW MILL ASSOCIATES, a
Pennsylvania limited parmmhlp .
General Parmer
By: Providence Mill, [nc"
General Parmer
.y~4fJ~
I' P e.sid t
-
aoo~ 1121 FACE 390
.11 .
5358")"/
" I
LECAL DESCRIPTION
Tract No.1
BECINNINC at a point on the Eastern side at U.S. Route 114 and
the Southern line at property now or late at 'the Boy Scouts at
America: thence along the Southern line at lands now or late at Boy
Scouts at America, Inc., No~ 66 degrees 22 minutes 41 seconds
East, a distance at 159.17 teet to a point: thence along same North
07 degrees 22 minutes 41 seconds East, a distance at 833.52 teet to
a point: thence along lands now or late at Barba Hench, North 27
degrees 42 minutes 12 seconds East, a distance at 838.57 teet to a
point on the low water mark ot the conodoquinet Creek: thence along
the low water mark at the conodoquinet Creek, the tollowing courses
and distances:
1) South 59 degrees 36 minutes 22 seconds East, a distance
at 64.96 teet,
2) South 43 degrees 27 minutes 07 seconds East, a distance
at 64.86 teet,
3) South 21 degrees 27 minutes 07 seconds East, a distance
at 172.94 teet,
4) South 33 degrees 17 minutes 06 seconds East, a distance
at 191.78 teet,
5) South 42 degrees 40 minutes 11 seconds East, a distance
at 116.93 teet,
6) South 25 degrees 15 minutes 57 seconds East, a distance
at 164.85 teet,
7) Sout.'l 28 degraes 03 minutes 26 seconds East, a distance
at 273.75 teet,
8) South 39 degrees 30 minutes 32 seconds East, a distance
at 248.10 teet,
Lot '2, Silver Spring Commons, thence along same, South 70 degree.
59 minutes 50 seconds West, a distance at 327.60 teet to a point:
thence continuing along same, North 43 degrees 42 minutes 25
seconds West, a distance at 463.000 teet to a point, thence
continuing along same Sout.'l 46 degrees 17 minute. 35 .econds We.t,
a distance ot 25.94 teet to a point: thence along a curve, curving
to the lett having a radius at 275.00 teet and an arc lenqth at
236.97 teet to a point: thence along same South 03 degree. 04
minutes 45 seconds East, a distance at 386.22 teet to a point on
the Eastern right-at-way at sporting Creen Drive: thence along the
Eastern right-at-way at Sporting Creen Drive by a curve, curving to
the lett with a radius ot 45.00 teet and an arc length at ld9.42
teet to a point: thence by a curve, curving to the right with a
radius ot 25.00 teet and an arc length at 31.03 teet to a point;
~oo~ 1121 fAtE 392
5~j5B2D
Tract: No.2
ALL THAT CERTAIN lot or parcel ot qround'located in Silver
sprinq Township, CUmberland County, more particularly described as
Parcel A on the Final Limited Resubdivision Plan ot Lots '1 and '2
tor Silver Sprinq Commons dated Kay 20, 1992, prepared by Hartman
, Associates, Inc. and recorded in the ottice ot the Recorder ot
Oeeds ot CUmberland County in Plan Book 65, paqe J.
CONTAINING 20,19J.JOO square teet.
BEING part ot the premises which Sportihq creen Associates by
deed dated April 12, 1991 and' recorded in the ottice ot the
Recorder ot Oeeds ot CUmberland county in Deed Book A, Volume J5,
paqe 1080, qranted and conveyed unto Silver Sprinq Center Limited
Partnership.
~:'~l" 01 i'onnl'flnnll }
:: :';::ry '" Cumberllnd 55
,. ':'rd,.,~ In the office lor the
~.~' 'n an" lor. Co rllCOrtllng of 0..-
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IIn.
600X 1121 'ACE 334
535831
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
WOOD'S DRIVE ASSOCIATES
^uc 18 S 56 AH '95
VB.
"f 'c~
',' ',! ',lIiON')q~y
It!i,',i.!,.\rlfi t(l{}!t1r
t i Ilh., f!\i.\1t,4
NLI/LF II, L.P.
No. 95-3154
ANSWER OF NLI/LF II. L.P.
TO AMENDED COMPLAINT WITH
NEW MATTER
Peter C. Cilio, Eaquire
FEDERMAN AND PHELAN
Two Penn Center Plaza
Suite 900
Philadelphia, PA 19102
(215) 562-7000
.
IUlr~/.ul.n/pCL/nli.woodl.pr.
FEDERMAN AND PHELAN
BYI Peter C. Cilio, Esquire
Identificaticn No. 39686
Suite 900
Two Penn Center Plaza
Philadelphia, PA 19102
(2151 563-7000
Attorney tor
Defendant
WOOD'S DRIVE ASSOCIATES,
a Pennsylvania General
Partnership
NLI/LF II, L.P.
I
I
I
I
I
I
I
NO. 95-3154
COURT OF COHMON PLEAS
CUMBERLAND COUNTY, PA
vs.
PRAECIPE TO AMEND ANSWER OF NLI/LF II, L.P.
TO AMENDED COMPLAINT WITH NEW MATTER
TO THE PROTHONOTARY:
Kindly substitute the attached pages 3 and 11 in the
Answer of NLI/LF II, L.P. to Amended Complaint with New Matter.
Pages 3 and 11 as originally filed were inadvertently copied from
a draft of the answer.
FEDERMAN NO PHELAN
Datel August 18, 1995
. CILlO
uite 900
Two Penn Center Plaza
Philadelphia, PA 19102
(215) 563-7000
Complaint. That document, being in writing, speaks for itself
and any characterization thereof is denied.
12. Denied. It is denied that a representative of
Defendant advised Wood of the outstanding balance due on the
Mortgage Note or that the Mortgage would be released upon payment
of the referenced amount. On the contrary, NLI, on behalf of
Defendant, advised Wood of the balance due and that the Mortgage
would be released upon payment of the referenced amount. By way
of further answer, by letter dated January 16, 1995, Wood was
notified by NLI, on behalf of Defendant, that it had incorrectly
advised Wood that the Mortgage would be released upon payment of
the Mortgage Note since NLI determined that the Mortgage also
secured a Note dated December 1, 1992 in the principal amount of
$1,786,962.58 between the RTC and Sporting Green Associates which
Note had been assigned to Defendant and which was still
outstanding (the "Sporting Green Note"). A copy of NLI's letter
is attached hereto at Exhibit "A" and by reference is made part
hereof.
13. Denied. The averments of paragraph 13 are denied
for the reasons set forth in paragraph 12 hereinabove. By way of
further answer, the averments of paragraph 13 refer to a
facsimile transmission dated December 1L, 1994. That document,
being in writing, speaks for itself and any characterization
thereof is denied.
14. Denied. Defendant is without sUfficient
knowledge, information or belief to form an opinion as to the
truth or falsity of the averments of paragraph 14 and strict
proof of sarno is demanded at trial. By way of further answer,
]
IN TilE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
vs.
.I/Ie Z I to
ls AN '95
(i', fl,
, "FIGf
:;;, i\:4~~I~~~1:CAt
, ';,1". ~~tr
.,.14
...
WOOD'S DRIVE ASSOCIATES
NLI/LF II, L.P.
No. 95-3154
PRAECIPE TO AMEND ANSWER OF
NLI/LF II, L.P. TO
AMENDED COMPLAINT WITIl
NEW MATTER
Peter C. Cilio, Esquire
Federman and Phelan
Two Penn Center Plaza
Suite 900
Philadelphia, PA 19102
(215) 563-7000
J..> F, tluoloy, J,,, t_
J_A,n.r.t.t_
A"omev I.D. No. Ill'.
IV'OAOI . IINON
""'....h"""""_
P. Q. &0. 1148
II........., PA 11101,1140
11111133>113'
AttofMvt fOf ".lnUrt
Plaintiff
I IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY.
PENNSYLVANIA
NO. 95.3154
: ACTION FOR DECLARATORY JUDGMENT
WOOD'S DRIVE ASSOCIATES,
a Pennsvlvanla Ganaral Partnership
v.
NATIONAL LOAN INVESTORS, L.P.,
JURY TRIAL DEMANDED
Defendant
WOOD'S DRIVE ASSOCIATES'
REPI-Y TO NEW MATTER
NOW COMES Wood's Drive Aasoclatas, bV its counsel, Rhosds &. Sinon, and
fIIas the within Replv to New Matter as follows:
23. Admitted.
24. Denied. After reasonable Investigation, Plaintiff Is without knowledge
or Information sufficient to form a balief as to tha truth of the averments contained In
paragraph 24 end the sama are tharefore danled. Proof thereof, If relavant, Is demandad at
time of trial.
25. Danlad. The avermentscontalned In paragraph 25 c.mstltuteconcluslons
of law to which no response Is required and th" same are denied.
26. Admitted.
27. Denied. After reesonable Investigation, Plaintiff Is without knowledge
or Information sufficient to form a belief es to the truth of the everments contained In
paragraph 27 end the same are therefore denied. Proofthereol. if relevant, is demanded at
time of trial.
28. Denied. Alter reasonable investigation, Plalntllfls without knowledge
or information sufficient to form a belief as to the truth of the averments contained In
paragraph 28 and the same are therefora denied. Proof thereof, If relevant, Is demanded at
time of trial.
29. Denied. Alter reasonabla invastlgatlon, Plalntllfls without knowledge
or Information sufficient to form a belief as to the truth of the averments contained In
paragraph 29 and the same are therefore denied. Proof thereof, If relevant, Is demanded at
time of trial. BV way of further denial. It Is specifically denied that the two Notes were cross-
collaterlzed.
-,.
30. Denied. The avermentecontalned In paragraph 30 constitute conclusions
of law to which no response Is required and the same are denied. By way of further denlel,
the Sporting Green Note Is a written document which speaks for Itself.
31 . Denied. The averments contained In paragraph 31 constitute conclusions
oflew to which no response Is required end the seme ere denied. By way of further denlel,
the Wood's Drive Mortgege Is e written document which speaks for itself. Defendant's
cheracterization thereof Is speclllcally denied.
32. Denied. The everments contained In paragraph 32 constitute conclusions
of lew to which no response Is required end the seme ere denied. By wey of further denial,
the Wood's Drive Mortgege Is a written document which speaks for itself. Defendant's
cheracterlzation thereof Is specllically denied.
33. Denied. The averments c.ontained In paregraph 33 constitute conclusions
of law to which no response Is required and the same are denied. By way of further denial,
the Notes referenced In paragreph 33 of Defendant's New Matter are written documents
which speak for themselves. Defendent's charecterlzatlon thereof Is specllicelly denied.
34. Denied. Alter reasoneble Investigation, Plelntlffls without knowledge
or Information sufficient to form a belief as to the truth of the everments contelned In
,3,
39. Denied. Theevermentscontalned In paregreph 39 constitute conclusions
of law to which no response Is required and the same are denied. The Jenuary 16, 1995
correspondence Is a written documents which speaks for Itself. Defandant's characterization
thereof Is specifically denied.
40. Denied. It Is specifically denied that Wood's Drive was aware that the
Wood's Drive Mortgage elso secured tho Sporting Green Note. To the contrery, the Wood's
Drive Mortgage does not secura the Sporting Green Note.
41. Denied. The averments contained In paragraph 41 constitute conclusions
of law to which no response Is required and the same ere denied.
42. Denied. The evermentscontained In paragraph 42constltuta conclusions
of law to which no response Is required and the samo are deniad.
43. Denied. The avermentscontained In paragreph 43 constitute conclusions
of law to which no response is required and the same ere denied.
44. Denied. It is specifically denied that the reference In paragraph 19 of the
Wood's Drive Mortgage to 'Mortgage Note' Is e mlstaka. To the contrary, the Mortgage Is
correct as written.
'. .
45. Danlad. The everments contained In paragraph 45 constltuta conclusions
of law to which no response Is required and the same are denied.
46. Danled. Tha avarmentscontalned In paragraph 46 constitute conclusions
of law to which no response is required and the sama are denied.
47. Denied. The averments contained In paragraph 47 constitute conclusions
of law to which no response Is required and the same ere denied.
48. Denied. The everments contained in paragraph 48 constitute conclusions
of law to which no response Is required and the same are denied.
49. Denied. The averments contained In paragraph 49 constitute conclu'4lons
of law to which no response Is required and the same are denied.
50. Denied. The averments contained In paragraph 50 constitute conclusions
of law to which no response Is required and the same are denied.
61. Denied. The averments contained In paragraph 5 1 constitute conclusions
of law to which no response Is required and the same are dsnled.
.1.
VERIFICATION
PURSUANT TO Pe.R.C.P. 10241cl
Jesse R. Ruhl states that he Is the attorney for Wood's Drive Associates. that
the party for whom he makes this allldevit is outside the jurisdiction of the court, and that the
verification of none of the olllcers could be obtained within the time allowed for the filing of
the foregoing" Reply to New Matter," and that he has sulllclent knowledge or Information and
belief. based upon his Invastlgatlon of the matters averred or denied In the foregoing
document, and that this statement Is made subject to the penalties of 18 Pa.C.S. 4904.
relating to unsworn falsification of authorities.
/'
! I
vJ\
DATEDI
-'
S
f
.
......D.,.. .'WO..,
. ~TTOIlNI;V. ~tL"w
01'11: 80UtH "".....~U 80U"..1:
P.O. .OM II".
HA""'''U"O.''';' 17IoB-i'...,
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JKk f. t1U1t1y, Jr., hquh
JH" A. huh!. (iii'''
AttofMy 10. No. "18B
IVtoADI . &lNON
OM South M.fhl SqUl'.
P. o. 80. 114ft
lI.riebl_V, flA 11108-1148
11111133 6131
AllgnWvl hu ,,.inllff
WOOD'S DRIVE ASSOCIATES,
a Pennsylvania General Partnership,
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
Plalntlll
NO. 95-3154
v.
: ACTION FOR DECLARATORY JUDGMENT
NLlILF II, L.P..
Dafendant
RULE TO SHOW CAUSE
AND NOW. this 10' day of
1-1",./
I
, 1996, upon consideration of tha
foregoing Motion to Compel Discovery to Answor Interrogatories, and to Produce Documents,
a Rule Is HEREBY ISSUED, ordering Defendant to show cause why Defendant should not
answer the Plaintiff's interrogatories and produce the requested documents.
RULE RETURNABLE ~ days from the dato of service.
BY THE COURT:
'I\' (., . /1/1
J,
.
.
J_kF, It,.''V. J"h.pr'
JH" R f\lH. hquk.
Atlonwv I D. No. .nlB
fUtDA08 . ilNON
Of'll South MIl"" 1qI......
1'. 0 Doll 114n
Uar,lIbuto. flA 11108.1140
1711123:1<&1.11
Attotnlly. lor '''lnlilf
WOOD'S DRIVE ASSOCIATES,
a Pennsylvania General Partnership,
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 95.3154
v.
: ACTION FOR DECLARATORY JUDGMENT
NLl/LF II, loP..
Defendant
QRDER
AND NOW, this _ day of
, 199B,upon Motion of Plalntlll,
and upon consideration of the arguments advanced by the parties, it Is hereby ORDERED
THAT Dafendant shall respond fully to Plaintlll's First Set of Interrogatories and Requests for
Production of Documents within ten (10) days from the date of this Order, under penalty of
sanctions II Dafendant does not comply.
BY THE COURT:
J.
3. Defendant made no objection to Plaintiff's discovery requests,
4. As of the date of this Motion, Defendant has failed to raspond to
Plaintiff's discovery requests.
WHEREFORE, Plaintiff Wood's Drive Associates respectfully requests that this
Court enter an Order compelling Defendant to rospond fully to Plaintiff's First Set of
Interrogatories and Requests for Production of Documents within ten (101 days of the date of
the Order, under penalty of further sanctions pursuant to Pa.R.Civ.P, 4019 if Defendant does
not comply.
RHOADS & SINON
By:
! t
Jac 17. u ley, Jr.
Jes R. Ruhl
P. . Box 1146
Ha rlsburg, PA 17108.1146
(7171233.5731
101111
Attorneys for Plaintlll
.2.
IlI.H'" '" ''''OAat
"a.un II tOHII, .I'"
.1I1111Itl'1oI0""
.I...... ""DfN
"tCIIMD. WOOD
loA_'Hce. 61.11I"'" ""
J .,"-,C'WlAU'"
JOliN" NAN..eM
'''AHIIJ U.'"
" .UM..H .III.\A
CU"'"'''''' "ICIl'
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.1"'1:'" "''''''''',.111I
H41f1"''''' WAt''''.J''
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November 1 3. 1995
RlI: Wood's DrlvlI Assoclstllll V. NLI/lF ",loP.. In thll Court of Common PllIlIS. Cumbllrlllnd
County, PlInnsylvlInls. No. 96.3164, Action for DlIclsrlltory Judgmllnt
Peter C. Cillo. Esquire
Federmen and Phelen
Suite 900
Two Penn Center Plsla
Phlllldelphla, PA 19'02.1799
Deer Peter:
Enclolsd for service upon yoU Is PllIlntllf'lI First Set of fnlerrogatorloll lInd
Requests for Production of Documentll. Thsnk you In advlInce for your lI\lentlon to this
meller.
Very truly yours.
RHOADS III SINON
By:
Jesse R. nuhl
Enclosure
JnR/pm 1m.
bccl Jack F. Hurley, Jr.. Esqulra (w/enc.)
l..ANCAl!Il[n Or'IC[.
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The following delinitlons are applicable to these standard Interrogstorles:
"Document" means any written, printed, typed, or other graphic mstter of sny
kind or nature, however produced or reproduced, Including photographs, microfilms,
phonographs, video and audio tapes, punch cards, magnetic tapes, discs, data cells, drums, and
other data compilations from which Infonnation can be obtained.
"Identify" or "Identity" means when used In reference to --
(I) A natural person, his or her:
(a) full name; and
(b) present or last known residence and employment address (Including
street name and number, city or town, and state or county);
(2) A document:
(a) its description (e.g.. letter, memorandum, report, etc.), title, and
date;
(b) its subject matter;
(c) its author's Identity;
(d) Its sddressee's Identity;
(e) its present location: and
(I) its custodisn' s identity:
(3) An oral communication:
(a) its date;
(b) the place where It occurred:
(c) its substance;
.2.
2. Identify each person who has knowledge of the assignment of the Sporting
Green Note and Mortgage and/or the Wood's Drive Note and Mortgage to the Defendant.
. e.
3. Identify each person who has knowledge or participated in the Defendant's
decision to release and/or satlsfy the Wood's Drive Mongage Identlf1ed In 11 I of the Amended
Complaint.
.7.
6, Identify each person you Intend to call as a non-expert witness at the trial
of this case. and for each person Identified, state your relationship with the witness and the
substance of the facts to which the witness Is expected to testify.
.10.
7. Identify each expcn you Intend to call as s witness st the trial of this
msller, and for each expcn state:
a. The subject matter about which the expcn Is expected to testify;
and
b, The substance of the facts and opinions to which the expcn Is
expected to testify and a summsry of the grounds for each opinion.
. " .
11. Identify the officen of the Defendant corporation,
.16.
14. State the amount of compensation paid for the assignment of the Wood's
Drive Note and Mortgage to Defendant referenced in 134 of Defendant's New Malter.
. 1S.
16. What Is the title and whst are the job responsibilities of Linda Henderson?
.20.
REOUESTS FOR PRODUCTION OF DOCUMENTS
KINDLY PRODUCB nm FOLLOWING DOCUMENTS:
I. All documents identified in the preceding interrogatories.
2. All documents upon which you expect to rely at time of trial.
3. The complete correspondence file of the Defendant concerning the Sporting Green
Note or Mortgsge referenced in '34 of Defendant's New MaUer.
4. TIle complete correspondence file of the Defendant concerning the Wood's Drive
Note or Mortgsge referenced in '34 of Defendant's New MaUer.
5. All documents thst reflect, relate or refer to the Sporting Green Note or
Mortgage.
6. All documents that reflect, relate or refer to the Wood's Drive Note or Mortgage.
7. All documents thst reflect, relste or refer to the actual or proposed ssslgnment of
the Sporting Green Note or Mortgage.
.22.
8. All documents that reflect, relate or refer to the actual or proposed assignment of
the Wood's Drive Note or Mortgage.
9. All documents that reflect, relate or refer to Defendant cOIporatlon's efforts to
assign. sell or transfer in any fonn the properties secured by the Sporting Green or Wood's
Drive Mortgages.
10. All documents that reflect. relste or refer to any meeting, communications,
correspondence, discussions or negotiations regarding the Sporting Green Note or Mortgage or
the Wood's Drive Note or Mortgage.
II. All documents which reflect, relate or refer to or question, opine upon, consider,
analyze or discuss whether Defendant has or had any obligation 10 release or mark satisfied the
mortgage securing the Wood's Drive Note.
12. All documents which reflect. relate, refer to, question, opine upon, consider,
analyze or discuss the Defendant's decision to refuse to release or mark satisfied the mortg8lc
securing the Wood's Drive Note.
.23.
13. Any calendar, diary, telephone message log or other chronological record of any
sort, covering the period December I, 1994 through Janusry 31, 1995, or any portion thereof,
used, possessed, or maintained by sny present or fonner officer, director, employee, agent,
attorney, accountant or representative of Defendant to the extent that such records reflect. relate
or refer to the Sporting Green Note or Mortgsge snd/or the Wood's Drive Note or Mortgage.
14. All documents which reflect. relate or refer to any statement made by any party
or witness concerning this action or its subject matter.
IS. All documents prepared by or for the Defendant in snticlpation of any litigation
or trial involving Plaintiff, except to the extent that such documents sre protected from discovery
under Rule 4003.3.
RHOADS' SINON I
esse R. Ruhl
,O.Box1146
Harrisburg, PA 17108-1146
(717) 233-5731
11114
Attorneys for Plaintiff
.24.
CERTIFICATE OF SERVICE
I hereby certify that on April 3, 1996, a true and correct copy of the forBgolng
'Motion to Com pal Defendant to Respond to Discovery Requests. was served by United
States mall, first class postage prepaid. upon tho following:
Peter C. Cilio, Esquire
Faderman and Phelan
Two Pann Center Plaza. Suite 900
Philadelphia, PA 19102
c.~~tOt.O
Cindy L. Ld el
'01121
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FIDIRMAM AND PHILAN
BYI Peter C. Cilia, Ilquire
Identifioation No. 39686
suite goo
TWo Penn Center Pla.a
Philadelphia, PA 19102
(215) 563-7000
Attorney for
Defendant
.
.
/U8r2/8U88n/pcc/wood8.8tip
WOOD'S DRIVe ASSOCIATIS, a
pennlylvania Oeneral partnerehip
COURT OF COKMON PLIAS
CUMBeRLAND COUNTY
VI.
1
1
1
1
1
1
1
NO. 95-3154
NLI/LF II, L.P.
STIPULATION FOR eXTeNSION OF TIMe TO ReSPOND TO DISCOVeRY
plaintiff, Wood's Drive Associates, and Defendant,
NLI/LF II, L.P., by and through their counsel, hereby stipulate
and agree as follows:
WIlEREAS, on or about November 13, 1995, counsel for
plaintiff served Defendant with a formal request for discovery in
the form of plaintiff's First Set of Interrogatories and Request
for Production of Documents;
WIlEREAS, the parties were in the process of negotiating
settlement of the dispute which is the subject of the instant
action, but were unable to conclude such settlement;
WHEREAS, on or around April 8, 1996, counsel for
Defendant received a copy of the Plaintiff's Motion to compel
Discovery to Answer Interrogatories and to Produce Documents (the
"Motion") regarding the above referenced matter;
NOW, THEREFORE, the parties hereto, intending to be
legally bound, stipulate and agree as follows:
i
.
NOW, THEREFORE, the parties hereto, intending to be
legally bound, stipulate and agree as follows:
1. NLI/LF, II L.P. is granted an extension until May
15, 1996 in which to respond to Plaintiff's First Set of
Interrogatories and Request for Production of Documents.
2. plaintiff shall withdraw the Motion without
prejudice.
Date: t""""
:::71""1':'7
R C. CILlO --
Attorney for NLI/LF II, L.P.
RHOADS &
\
Datel
Y/L1./1C
)
Associates
:I
IN TilE COUR'r OF COMMON
PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
r 'f'" t';'i'!'-F
"
. I .. -; L,;:.: 1'/
WOOD'S DRIVE ASSOCIATES
ve.
I , ,'.. -d..t-.\/\
"I'
NLI/LF II, L.P.
'95-3154
8TIPULATION FOR EXTENSION
OF TIME TO RESPOND TO
DISCOVERY
Peter C, Cilio, Esquire
(2151 563-7000
'EDERMAN AND PHBLAN
BYI Peter C. cilio, Esquire
Attorney 1.0. No. 39686
Two Penn Center Pla.a, suite 900
Philadelphia, PA 19102-1799
(215) 563-7000
WOOD'S DRIVB ASSOCIATES, I
a Penneylvania Oeneral partnership I
plaintiff I
I
ve. I
I
NATIONAL LOAN INVESTORS, L.P. I
Attorney for Defendant
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
NO. 95-3154
CERTIFICATION OF SERVICE
I hereby certify that a true and correct copy of Defendant's
Response to Plaintiff's Motion to compel Answers and Responses to
Discovery was sent via first class mail to counsel for Plaintiff
on the date listed below:
Jack F. Hurley, Jr. Esquire
Jessie R. Ruhl, Esquire
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Dated:
~ .I ;JiJ1'I {,
;/ ,4
, " I" {
, t .'"
J
! f- l
rEDERMAN AND PHELAN
By. Peter C. cilio, Esquire
Attorney 1.0. No. 3'686
Two Penn Center Pla.a, suite '00
Philadelphia, PA 1'102-17"
(2151 563-7000
Attorney for Defendant
NO. '5-3154
WOOD'S DRIVe ASSOCIATES, .
a Pennsylvania Oeneral Partnership .
plaintiff I
I
VS. I
I
NATIONAL LOAN INVESTORS, L.P. I
COURT or COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
o ROB R
AND NOW, this
day of
, 1996, upon
consideration of Plaintiff's Motion to Compel Answers and Responses
to Discovery and Defendant's Response thpreto, it is hereby
ORDERED AND DECREED that Plaintiff I s Motion is dismissed.
BY THE COURT:
J.
FEDERMAN AND PHELAN
By. Peter C. cilio, Esquire
Attorney I.D. No. 31686
Two Penn Center Pla.a, suite 100
Philadelphia, PA 11102-1711
(215) 563-7000
,,,,"'"I
Attorney for Defendant
WOOD'S DRIVE ASSOCIATES, .
a Pennsylvania Oeneral Partnerehip .
Plaintiff .
.
vs. .
.
NATIONAL LOAN INVESTORS, L.P. .
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
NO. 15-3154
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTIO~ TO COMPEL
ANSWERS AND RESPONSES TO DISCOVE~Y
1. Admitted.
2. Denied as stated.
3.
Denied.
The averments of paragraph 3 refer to
documents which speak for themselves. Therefore, no response is
required.
4.
Denied.
The averments of paragraph 4 refer to
documents which speak for themselves. Therefore, no response is
required.
5. Admitted.
6.
Denied as stated,
The averments of paragraph 6
refer to documents which speak for themselves.
Therefore, no
response is required.
7. Admitted. The averments of paragraph 7 refer to
documents which speak for themselves. Therefore, no response is
required.
8. Denied. Ai though Defendant has asserted numerous
objections, Defendant has fully answered the discovery, without
waiving its objections. By way of further responee, as Plaintiff
has requested answers to Interrogatories 2,3,4,5,6,7, B, 9, 12,13,14,
and 15, Defendant will address each paragraph.
a. In paragraph 2 of the Interrogatories Plaintiff
has requested and Defendant has provided the names of the persons
who have knowledge of the Assignment of the Sporting Green Note and
Mortgage and/or the Wood's Drive Note and Mortgage to the
Defendant.
b. In paragraph 3 Plaintiff has requested and
Defendant has provided the names of the persons who had knowledge
or participated in Defendant's decision to release and/or satisfy
the Wood's Drive Mortgage identified in paragraph 11 of the Amended
Complaint.
c. Defendant refuses to answer paragraph 4 of the
Interrogatories on the basis of its objection that the term
"statements" is overly broad and vague and not reasonably
calculated to lead to the discovery of admissible evidence.
d. In paragraph 5 of the Interrogatories,
Plaintiff requested the identity of each person who had conducted
an investigation and the identity of reports produced as a result
of the investigation. Defendant answered paragraph 5 by
identifying the persons who conducted an investigation. Defendant
properly objected to the production of any documents, citing the
attorney/client privilege and the attorney/work product privilege.
e. In paragraph 6 of the Interrogatories,
Plaintiff requested and Defendant provided the identity of each
person Defendant intends to call as an expert witness at trial.
f. In paragraph 7 of the Interrogatories,
Plaintiff requested the identity of Defendantls expert witnesses.
Defendant properly responded that it does not intend to call an
expert witnessee at this time.
g. In Paragraph 8 of the Interrogatories,
Plaintiff requested and Defendant provided the identity of all
exhibits Defendant intends to introduce at trial subject to
amendment and supplementation based on continuing discovery.
h. In paragraph 9 of the Interrogatories,
Plaintiff requested the identity of any admissions made by
Plaintiff which Defendant intends to introduce at trial. Defendant
properly responded that it does not intend to use any of
Plaintiff's admissions at trial, at this time subject to amendment
and supplementation based on continuing discovery.
1. In paragraph 12 of the Interrogatories,
Plaintiff requested the identity of each individual at the "RTC"
with whom Defendant communicated regarding the Sporting Green Note
and Mortgage and/or the Woodle Drive Note and Mortgage. Defendant
properly responded that it was not aware of any such convereatione.
j. In paragraph 13 of the Interrogatories,
Plaintiff requeeted the amount of compensation paid for the
Aesignment of the sporting Green Note and Mortgage to Defendant
refsrenced in paragraph 34 of Defendant's New Matter. Defendant
properly objected to this Interrogatory as being irrelevant to the
law suit and not reasonably calculated to lead to the discovery of
any admissable evidence.
k. In paragraph 14 of the Interrogatories,
Plaintiff requested the amount of compensation paid for the
Assignment of the Wood's Drive Note and Mortgage to Defendant
referenced in paragraph 34 of Defendant I S New Matter. Defendant
properly objected to this Interrogatory in the same manner in which
it objected to paragraph 13 of the Interrogatories, as described
above.
1. In paragraph 15 of the Interrogatories,
Plaintiff requested the identity of the entity responsible for
making the payments referenced in paragraphs 13 and 14 of the
Interrogatories. Defendant provided the identities of the
entities.
m. In paragraph 2 of the Request for Production
of Documents, Plaintiff requested documents which Defendant intends
to rely on at trial. Defendant properly objected to this request
as being premature.
n. In Defendant's responses to paragraphs 3
through 8 and 10 through 12 of Plaintiff's Request for Production
of Documents, although Defendant objected to these request,
Defendant also produced the requested documents.
o. In paragraph 13 of the Request for Production
of Documents, Plaintiff requested "Any calendar, diary, telephone
meesage log or other chronological record of any sort, ... used,
possessed, or maintained by any present or former officer,
director, employee, ...", to which Defendant properly objected on
the basis of the attorney client privilege, the attorney work
product privilege, the fact that the request is not likely to lead
to the discovery of admissable evidence, and the fact that the
documente contain opinions regarding the merits of the case.
p. Although Defendant objected to paragraph 14 of
Plaintiff's Request for Production of Documents, Defendant provided
the requested documents.
q. In paragraph 15 of the Request for Production
of Documents, Plaintiff requested all documents prepared by or for
the Defendant in anticipation of any litigation or trial involving
P18intiff.
Defendant properly objected to paragraph 15 of the
Request for Production of Documents based on the privilege under
Rule 4003.3 regarding opinions, legal research, and legal theories.
9. Denied.
10. Denied. By way of further response, see Defendant's
response to paragraph B, above.
11. Denied. It is denied that Defendant's Answers to
the discovery were served five (5)months late. On the contrary,
by Plaintiff's own admission in ite Motion, Defendant served its
answers to discovery on May 31, 1996, only sixteen (16) days after
the deadline of May 15, 1996, agreed to by the parties. By way of
further response, Plaintiff has waived the right to aeeert the
normal thirty (30) day deadline, by stipUlating with Defendant for
an extension of time to answer Plaintiff's discovery.
WHEREFORE, Defendant respectfully requests that the Court
dismise Plaintiff's Motion to Compel.
Respe tfu11YtSubmitted,
Date I ( Jt II'
l
L I '<j <; (.
I' '
,--};IJq.
Plaintiff
nU:O.'OTIC,~
cr 1! ,-- i"r'(,',~:Ji:IJ;Y
l1uf' 1('" ?/, I'l[ i....O
. , ,f '. I ( q'.l
CUiti'",,!,. ,\,.. , 'j
PavN.'iI1.\it\';~.' .,
-
WOOD'S DRIVE ASSOCIATES,
pll1ll1tlrf
IN TIlE COURT OF COMMON PLEAS OF
ClJMBElUAND COUNTY. PENNSYLVANIA
VS.
CIVIl. ACTION - lAW
NLlILF II. L,p.,
Defemlllnt
95.3154 CIVIL TERM
IN RE: PLAINTIFF'S MOTION TO COMPEL
ORDER
AND NOW, this I" day of June. 19\)(}, argument on the ahove ellptloncd
motion is set for Thursday, August 1, )9\)(), at 3:00 p,m, in Courtroom Numhcr 4, Cumbcrlnnd
County Courthouse, ClIrllsle, PA.
BY TilE COURT.
-N.AL
Kevin A. Bess, J.
Jcsse R. Ruhl, Esqulrc
For the pllIintlrf
I
f.../,"d ~b.
...\.1Y
- t.~-"'oJ' (l''(l..t,,t
Petcr C. Cillo, Esquire
For thc Dcfendllnt
:rlm
,. VtM\"1ASNNild
AWn'\(! P;t;Il;';VII'\~
I a ,g IIV '1' hi.;' ~s
A!NltJ,',LL. i. iO
B:.x~j(,l-i.!3', j
.'
"
IJ\",11 .
.'1';"
JMI" r .11"'''..,. J,., t....
J.... R f\it&. t....
Attorney I,b. No. .UII
IVtoAOI . IINON
One 80uth MMbI aqu..
",0, OeuI \148
It.....,..., PA III 0.' 1140
111111331131
AItDmlIyt 'Of Mllnt"'
WOOD'S DRIVE ASSOCIATES,
a Pennsylvania General Partnership,
I IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COllNTY, PENNSYLVANIA
Plalntlll
v.
: NO. 95-3164
: ACTION FOR DECLARATORY JUDGMENT
NLl/LF II, L.P.,
Defendant
BU.l.E TO S!:tOW CAUSE
AND NOW, this _ day of June 1996, upon consideration of the within
Motion to Compel, a Rule Is hereby Issued upon Defendant NLl/LF II, loP. to show cause why
the relief requested should not ba granted.
RULE RETURNABLE _ days from the date of service,
BY THE COURT:
J,
'., t
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JelIk F.ltiNy, Jr., hqun
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All_ 10, No, 11111
IV'Ol<OI . "NON
Ono ....h """",, _
p. O. Bo.. 1140
ll.........., PI< 11101,1141
IJIlI3)),1131
Attorney. lor Aalntlfl
WOOD'S DRIVE ASSOCIATES,
a Pennsylvania Ganeral Partnership,
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
Plslntlll
v.
: NO. 95.3154
: ACTION FOR DECLARATORY JUDGMENT
NLl/LF II, L.P.,
Defendant
ORDER
AND NOW, this
day of June, 1996 and after hearing, the Defendant,
within fifteen (151 days of the date of this Order, Is hereby Ordered:
1. To provide complete answers to the following Interrogatories contained
In the Plaintiff's First Set of Interrogatories: 2, 3, 4, 6, 8, 7, 8, 9, 12, 13, 14 and 15; and
2. To provide complete responses to the following Requests for Production
of Documents: 2,3,4,5,6,7,8,10,11,12,13,14 and 15.
Furthermore, as a sanction for the Defendant's failure to comply with the Rules
of Civil Procedure ragardlng discovery, the Plalntllfls awarded the sum of $
BY THE COURT:
J.
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3. On April 10, 1996. this Court entered a Rule to Show Cause on
Defendant to show causa why Defendant should not answer Plaintiff's Interrogatories and
produce the requested documents. A true and correct copy of the Plaintiff's first Motion to
Compel and this Court's Rule to Show Cause are attached hereto at Exhibit 'A" and
incorporated herein by reference. Upon Information and belief. the Court Administrator's
Ollice served both parties with a copy of this Court's Rule.
4. Thereafter, due to the pendency of settlement discussions occurring
between the parties, Wood's agreed to afford Defendant with an additional thirty (30) days
to respond to the discovery Interrogatories and requests. To this end, the parties executed
and filed a stipulation whereby Defendant was granted until May 16, 1996 to respond to
Wood's First Set of Interrogatories and Requests for Production of Documents. A true end
correct copy of the Stipulation Is attached hereto at Exhibit "B' and incorporated herein by
reference.
6. Nevertheless, despite this extension made In good faith to the Defendant,
Defendant failed tu respond to Wood's discovery matters by May 15, 1996.
6. In response to Defendant's failure to abide by the terms of the
Stipulation. counsel to Wood's wrote Defendant's counsel on May 23, 1996 and advised
Defendant that unless complete answers and responses to Plaintlll's discovery requestll were
delivered to Plslntlfl's counsal by Tuesday, May 28, 1996, Plaintiff's would file a second
.2-
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WOOD'S DRIVE ASSOCIATES.
a Pennsylvania General Psrtnershlp,
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNlY, PENNSYLVANIA
I
Plaintiff
I NO. 95-3154
v.
: ACTION FOR DECLARATORY JUDGMENT
NLI/LF II, L.P.,
Defendant
ME TO SHOW CAUSE
AND NOW, this .J.f)!!lday of flr";"L, 1996, upon consideration of the
foregoing Motion to Compel Discovery to Answer Interrogatorias, and to Produce Documents,
a Rule Is HEREBY ISSUED, ordering Defendant to show cause why Defendant should not
answer ths Plaintiff's interrogatories and produce the requested documents.
RULE RETURNABLE 'J.() days from the data of service.
BY THE COURT:
0/ ~AH~ tl. -1okd4-_
J.
T~IJ!= COpy FROM RECORD
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An.... 10, No, 11711
,,"<lADI . IINON
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Uemabwg. PA 1710""48
171712U.1731
Ahanwyt 'Of PIM'IfIItf
WOOD'S DRIVE ASSOCIATES,
a Pennsylvania General Partnership,
: IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
I NO. 95.3154
v.
.
.
: ACTION FOR DECLARATORY JUDGMENT
NLI/LF II, L.P.,
Defendant
OBDEB
AND NOW, this _ day of
, 1996, upon Motion of Plaintiff,
and upon consideration of the arguments advanced by the parties, it Is heraby ORDERED
THAT Defendant shall respond fully to Plaintiff's First Set of Interrogatories and Requests for
Production of Documents within ten (10) days from the date of this Order, under penalty of
sanctions if Defendsnt does not comply.
BY THE COURT:
J,
3. Defendant made no objection to Plalntlll's discovery requests.
4. As of the date of this Motion, Defendant has fallad to respond to
Plalntlll's discovery requests.
WHEREFORE, Plslntlff Wood's Drive Associates respectfully requests that this
Court enter an Order com palling Defendant to respond fully to Plaintill's First Set of
Interrogatories and Requests for Production of Documents within ten (10) days of the date of
the Order, under penalty of further sanctions pursuant to Pa.R.Clv.P. 4019if Defendant does
not comply.
RHOADS & SINON
By:
101117
Jac 11. u ley, Jr.
Je R. Ruhl
P. .Box1146
Ha rlsburg, PA 17108.1146
(717) 233-5731
Attorneys for Plaintiff
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A_ 1.0, No, IIlN
IftllADl....ON
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P. O. ... 1141
...........' 'A moe.1140
1717113).1131
"'tt..-ye 'lit ~
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY.
PENNSYLVANIA
NO. 95-3154
WOOD'S DRIVE ASSOCIATES.
a Pennsylvsnia General Partnership
Plaintiff
v.
.
,
: ACTION FOR DECLARATORY JUDGMENT
NLl/LF II, L.P.,
Defendant
TO: NLI/LF II, L.P.
c/o Peter C. Cllio, Esquire
Two Penn Canter Pine, Suite 900
Philadelphia, PA 19102
PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvanle
Rule of Civil Procedure No. 4001. 11 UII. to serve upon the undersigned a copy of your
answers snd objections, if any, In writing and under oath. to the following Interrogatorlell
within thirty (30) days after service of tha Interrogatories. The answers shall be Inserted In
the spaces provided. If there Is insufficient space to answer en Interrogetory, the remainder
of the answer shall follow on a supplemental sheet.
These Interroglltories shall be deemed to be continuing Interrogatories, If
betwesn the time of filing your answers end the time of trisl of this matter, you. or anyone
acting on your bahsll, lasm of any further information not contained In your answers, or If you
learn that sny Informetion set forth in your anawers Is or hss become inaccurate or Incorrect.
you shall promptly lIIe snd serve supple mente I answars.
~
'lbc following definitions arc appllcable to these Ita1ldard Interrogatories:
"Document" mtalllany written, printed, typed, or other graphic matter of any
ldnd or nature, however produced or reproduced, including photographs, microfilms,
phonographs, video and audio lapel, punch cards, magnetic tapcI, discs, dall cells, drums, and
other data compilations from which Infonnation can be obtained.
"Identify" or "Identity" means wbeD used in reference to -
(I) A Dltural penon, hiI or her:
(a) full name: and
(b) present or laIt known J'CIldencc and cmploymentaddress (lncludlna
street DIlDO and number, city or town, and IlIte or county):
(2) A document:
(a) ill description (C.I., letter, mcmonndum, report, etc,), titio, and
date;
(b) ita subject matter;
(c) ita author's Identity:
(d) ita addresaec'sldcntlty;
(e) its present location: and
(I) Its custodlan'sldonthYi
(3) An oral communication:
(a) its date;
(b) the place where it occumll;
(c) its subltaDCC;
.2.
answcrs must be supplemcoted IDd IIDcoded u required by the PeMlylvanla Rules of Civil
ProcedUI'C,
(2) Claim of privilCIC. - With rcapect to any claim of privilcgc or immunity
from dlscovcry. you must Identify thc privilclc or immunity asserted and providc sufficicnt
infonnatlon to substantiate the claim.
(3) OptIoo to produce documcnts. - In lieu of ldentifylnl documcots In
response to thcse Intcrroptories, you may providc copies of such documcots with appropriate
refcrences to thc corrcspondlnllntcrroptories.
-4-
2. Identify each perlOn woo baa knowledge of the assignment of the Sporting
Green Note and Mortplc and/or the Wood's Drivc Note and Mortpge to the Defendant.
-8-
3, Identify each pcI10n who has ImowlcdF orpaniclpatcd in the Defendant's
decision to relwe and/or satisfy the Wood's Drive Mortgage Identified In '11 of the Amended
Complaint.
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,7.
4. If you know of anyone who baa aiven any statements (15 defined by the
Rules of ClvU Procedure) concerning this action or Its subject maner, stste:
a. The Identify of the individual
b. When, where, by whom and 10 whom each statement was made,
and whether it wu reduced 10 writing or otherwise roconlcd; and
c. The Identity of any penon who has custody of any statement that
wu reduced 10 writing or otherwise rocorded.
. B .
5. If you, ofaomeooc not an expcltlubject to Pa,R.Clv.P. 4003.5, conducted
any InVestl.atIoDI of the incident, Identify:
I. Bach penoD, and the employer of each penon, who conducted any
Investl.atlon(s); and
b. All notes, n:pona Of other documents prepared during Of as a
rcsult of the investigations and the penons who have custody
tbcrcof.
,8.
6. Identify each perIOD youlotend to call u. non-cxpcrt wib1ess at the trial
of this cue, and for each penon identified, state your relationship with the witness and the
subsuncc of the facts to whicb the witncss Ia expected to testify.
. 10.
10, Identify tho teo .....ost ahareholdon of the Defendant colpOralion,
-14-
12, Identify eacb lndlvldual at the ReIolution Troll Corporation ("RTC") with
whom tho Defondant corporation had any communication or meetlnla conccmlnl In any way
whallOOvor tho Sportlnl GJ'llCn Note or MortplO and/or tho Wood', Drivo Note or MortPlo,
.,..
15. Identify the cndty or individual rcapon.lble for makin, the payments
referenced in the two P,.........ih11 intcROptorlca,
. 18.
16, What II tho title ud wballnl the Job fOIIXlDllbWtlea or UncIa Hoodenon7
.10-
8. A1J documents tbat rdloct, Rllate or refer 10 1hc actual or proposed uslgnmcnt of
thc Wood's Drivc Note or MortNC.
9. A1J documcnts that Rlflcct, Rllate or refcr 10 Defcndant colpOllItion's efforts to
assign, sell or transfer In any fonn the properties secured by thc Sporting GRlen or Wood's
Drivc Mortgagcs.
10. A1J documcnts that Rlflect, relate or Rlfer to any meeting, communications,
correspondcncc, discussions or ncgotiations regarding 1hc Sporting GRlen Notc or MOrlJlle or
thc Wood's Drive Note or MortNC.
II. A1J documcnts whicb reflect, Rllate or refcr 10 or qucstion, opine upon, consider,
analyze or discuss wbethcr Defcndant has or bad any obligation to release or mm satisfied the
mortgagc securing tbe Wood's Drivc Note.
12. A1J documcnts whicb reflect, relate, refcr 10, question, opine upon, consider.
analyze or discuss thc Defcndant's decision to Rlfuse 10 release or mm satisfied the monpp
securing thc Wood's Drivc Note.
.23.
13. Any calendar, diary, telephone meslllc 101 or other chronological record of any
sort, covcrinl thc period December I, 1994 through January 31, 1995, or any portion thcRlOf,
used, possessed, or maintained by any present or fonncr officer, director, employee, agcnt,
attorncy, accountant or representativc of Defcndant to the cxtent that such records reflect, Rllate
or refcr to thc Sportinl Green Note or MoltJllc and/or thc Wood's Drivc Note or Mortgagc.
14. A1J documenta which Rlflect, relate or refcr to any statemcnt made by any party
or witncss concerning this action or its subject matter.
IS. A1J documents prepared by or for thc Defcndantln anticipation of any litigation
or trial involving Plaintiff, except to thc extent that such documcnts arc protected from discovcry
under Rule 4003.3.
~:~'DS · :'N:ft U
lCk F. urlev. Jr.
else R. Ruhl
. O. Box 1 146
Herrisburg. PA 17108.1146
(717)233-5731
Attornev. for PI.intlff
..".
. 24.
CERnFICATE OF SERVICE
I hereby certify that on November}-? 1995. e true and correct copy of the
foregoing .Flrat Set of Interrogstorles and Requeats for Production of Documents. wllaerved
by United State a mell. first clasa postage prepaid. upon the following:
Peter C. Cillo. Esquire
Federmen and Phelsn
Two Penn Center Plsza. Suite 900
Philadelphia. PA 19102
t~.~f!.tl/
!
/ulr3/IUIID/pCC/woodl..tip
rlDl1UIAIf AND PHILMI
BYI 'eter C. cilio, laquire
Identification 10. 3".'
8uite .00
Two 'enn Center flala
'biladelpbia, 'A 1.102
(215) 513-7000
Attorney for
Dafendant
WOOD'8 DRIVI A88DCIATI8, a
fennaylvania Oen8ral fartnerahip
COURT or COMMON 'LEA8
CUMBERLAND COUNTY
NLI/L" II, L.P.
I
I
I
I
I
I
I
10. '5-3154
VI.
8TI'ULATION rOR IITEI810N or TIMI TO RI8'OND TO DI8COVERY
Plaintiff, Wood's Drive Associates, and Defendant,
NLI/LF II, L.P., by and through their counsel, hereby stipulate
and agree as followsl
WHEREAS, on or about November 13, 1995, counsel for
Plaintiff served Defendant with a formal request for discovery in
the form of Plaintiff's First Set of Interrogatories and Request
for Production of Documentsl
WHEREAS, the parties were in the process of negotiating
settlement of the dispute which is the SUbject of the instant
action, but were unable to conclude such settlement;
WHEREAS, on or around April 8, 1996, counsel for
Defendant received a copy of the Plaintiff's Hotion to Compel
Discovery to Answer Interrogatories and to Produce Documents (the
"Hotion") regarding the above referenced matter;
NOW, THEREFORE, the parties hereto, intending to be
legally bound, stipulate and agree as followsl
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May 23, 1996
R.: Wood', Drlv. Allocl.t.. v. NLlILF II. L.P.. Cumberfend County coun of Common
PI.... No. 811-31114. Action for Declar.tory Judgment
VIA FACSIMILE: 21&-1113-111134
end U.S. MAIL
Peter C. Cillo, Esquire
Federmen end Phelan
Two Penn Center Plez" Suite 900
Philadelphle. PA 19102-1799
Deer Peter:
Despite our cllent'e good felth agr..ment to ext.nd ageln and egeln the tlma
p.riod bv which NLI waa r.qulred to respond to our discovery requeats, you heve yet to
comply with your discovery obligetlon..
Therefore, be adviled th.t In the event we do not heve complete answers and
responsea to our di,covery requaet.ln our office by 12:00 p.m. on Tuesday. May 28, 1996.
we will file e IBcond motion to compel, this one requesting oppropriete aenctlon..
JRR/ell 104417
Very truly yours,
INON
By: j 1t~1111 A
m-R.R~~ V.
co: Jlck p, Hurley, Jr., Elqulre
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rlDIRMAM AND PHI LAN
BYI 'eter C. cilio, lequire
Identification No.3".'
suite .00
Two 'enn Center 'lala
,hiladelphia, fA 1.102
(215) 513-7000
Attorney for
Defendant
WOOD'S DRIVI ASSOCIATIB,
a 'enneylvania General
'artnenhip
COURT OF COMMON fLEAS
CUMBIRLAND COUNTY, 'A
ve.
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NO. 15-3154
NLI/Lr II, L.'.
ANSWIR or NLIILr II, L.'.
TO INTERROGATORIIB
Pursuant to Pennsylvania Rule of civil Procedure No.
4001, n ~., defendant, NLI/LF II, L.P. ("NLI"), by its
undersigned attorneys, hereby responds to Plaintiff's
Interrogatories. The responses and objections are founded on the
present state of answering defendant's review of documents and
its ongoing investigation of docunents and potential witnesses.
In providing these answers, answering defendant neitter
waives nor intends to waive the right to rely upon all
information and documents which have been or will be produced in
discovery or acquired in anewering defendant's continuing review
and investigation, and answering defendant expressly reserves the
right to amend, modify or supplement these responses and
objections andlor rely on additional information or documents
based on its further review of the documents produced to date,
additional discovery which is conducted, and ongoing
investigation of documents and potential witnesses.
By making information, materials or documents available
in response to Plaintiff'S Interrogatories (hereinafter
"discovery requests"), answering defendant neither waives nor
intends to waive any objections regarding Plaintiff's use of such
information, materials or documents, including but not limited to
competency, privilege, relevance, materiality and admissibility.
Oeneral ob1ectione
1. Answering defendant objects to Plaintiff's
discovery requests to the extent that they are unduly burdensome,
expensive, harassing and not reasonably calculated to lead to the
discovery of admissible evidence. As used herein, these terms
mean: (1) that the request so characterized requires a search for
information, materials or documents which are not relevant to or
reasonably calculated to lead to the discovery of admissible
evidencel (2) that the value, if any, of the production of such
information, materials or documents is far outweighed by the
burden or cost of producing them; (3) that the request so
characterized requires an investigation into matters not within
the knowledge, custody or control of answering defendant; (4)
that the information requested is contained in materiale or
documents equally available to the Plaintiff as to answering
defendant or that the materials or documents requested are
already in Plaintiff's possession I or (5) that the request so
characterized is intended by the proponent to caUSl answering
2
defendant to expend time and effort in a search for information
which is of merely marginal interest to the proponent and not
reasonably calculated to lead to the discovery of admissible
evidence.
2. Answering defendant objects to Plaintiff's
discovery requests to the extent that they seek disclosure of
information andlor identification of materials or documents that
are subject to the attorney-client privilege, the attorney work
product privilege (inClUding, but not limited to, materials or
documents prepared in anticipation of litigation by or for
answering defendant, their attorneys or other representatives,
and information, materials or documents which would disclose the
mental impressions, conclusions, opinione or legal theories of
answering defendant's attorneys or other representatives
concerning any matters at issue in the litigation) andlor any
other applicable privilege or protection.
J. Answering defendant objects to Plaintiff's
discovery requests to the extent that they seek information,
materials or documents that are not material or relevant to this
lawsuit or that are not reasonably calculated to lead to the
discovery of admissible evidence.
4. Answering defendant objects to Plaintiff's request
for admissions to the extent that they require answering
defendant to assume facts and opinions which are not of record,
untrue or otherwise contradicted by facts and opinions of record.
J
5. Answering defendant objects to Plaintiff's
discovery requests to the extent that they merely consist of
legal assertions, argumentative conclusions, or are otherwise
lacking in factual content.
6. Answering defendant objects to Plaintiff's
discovery requests to the extent that they are overly broad,
vague andlor ambiguous. As used herein, the term "overly broad"
means that the request so characterized seeks, at least in part,
information, materials or documents irrelevant in scope, subject
matter andlor time period to the particular matters at issue
between answering defendant and Plaintiff.
7. Answering defendant objects to Plaintiff's
discovery requests to the extent that they may purport seek all
facts on which answering defendant may rely in the defense of
this action, because discovery in this case is still continuing.
Accordingly, answering defendant reserves the right to
supplement these responses to Plaintiff's discovery requests upon
the discovery of additional facts at any time up to and including
the time of trial of this matter.
B. Answering defendant objects to Plaintiff's
discovery requests to the extent that they request the
identification of "all documents", insofar as such requests
purport to require answering defendant to identify documents
available from public or government sources or to identify
documents produced by Plaintiff during discovery in this case, or
otherwise in the possession of the Plaintiff or its agents.
4
Plaintiff and other parties have produced to date numerous
documents upon which answering defendant may rely in connection
with this case. Also, many documents are in the public record.
9. Answering defendant objects to Plaintiff's
discovery requests to the extent that they seek identification of
every person or every individual with knowledge of the facts
relevant Lo this litigation. To date, very few depositions have
been taken in this case. Accordingly, it is impossible for
answering defendant to answer these requests completely.
10. Answering defendant objects to Plaintiff's
discovery requests to the extent that they seek information
relating to or generated by any expert retained by answering
defendant, whom answering defendant does not intend to call as a
witness at trial.
11. Answering defendant objects to Plaintiff's
discovery requests to the extent that they are premature, as
discovery in this case is still continuing. Accordingly,
answering defendant reserves the right to supplement these
responses herein upon the discovery of additional facts at any
time up to and including the time of trial of this matter.
12. Answering defendant objects to Plaintiff's
discovery requests to the extent that they seek to impose
obligations inconsistent with those set forth in the Pennsylvania
Rules of civil Procedure.
6
InterroCJatorie.
1. Identify each person who assisted in the
preparation of the answers to these interrogatories.
AIISWBRI
Darren Vance Hindemann
3030 N.W. Expressway
suite 1313
Oklahoma city, OK 73112
1
2. Identify each person who has knowledge of the
assignment of the sporting G~een Note and Mortgage andlor the
Wood's Drive Note and mortgage to the Defendant.
ANSW" I
Objection. See general objections which are
incorporated herein by reference. Defendant also specifically
objects insofar aB this interrogatory is vague and ambiguous and
it is not clear in what manner any person may be said to "have
knowledge of the assignment of the sporting Green Note and
Mortgage andlor the Wood's Drive Note and Mortgage to Defendant".
without waiver of or prejudice to the foregoing, specific
objections and the foregoing general objections and reserving at
all time the right to supplement any response not given upon the
completion of continuing discovery, Defendant responds to the
extent that Defendant understands this request and that the
persons who had knowledge of the assignment and the issues
relating to the instant lawsuit arel
Darren Mindemann
I,inda Henderson
3030 N.W. Expressway
suite 1Jl3
Oklahoma city, OK 73112.
I
5. If you, or someone not an expert subject to
Pa.R.Civ.P. 4003.5, conducted any investigations of the incident,
identify I
a. Each person, and the employer of each person,
who conducted an investigation(s); and
b. All notes, reports or other documents prepared
during or as a result of the investigations and the persons who
have custody thereof.
AMBWERI Objection, See general objections which are
incorporated herein by reference. Defendant also specifically
objecte to this interrogatory on the grounds that the term
"investigations" is overly broad and vague and is not reasonably
calculated to lead to discovery of admissible evidence. Without
waiving said objection and reserving the right to supplement any
response not given upon completion of discovery, Defendant
responds to the extent Defendant understands this request as
follows: Neil steimer and Darren Hindemann reviewed the loan
documents and file with respect to this matter. Any
investigations by counsel and documents pursuant to such
investigations or any other documents produced in anticipation of
this litigation are protected by the attorney-client privilege
and attorney work-product privilege.
II
6. Identify each person you intend to call as a non-
expert witness at the trial of this case, and for each person
identified, state your relationship with the witness and the
substance of the facts to which the witness is expected to
testify.
AMB.BRI subject to amendment and lor supplementation at a later
date based upon the results of discovery, Defendant intends to
call the following persons as witnesses:
Linda Henderson
Darren Hindemann
Chris Zettlemoyer, Esquire
G
8. Identify all exhibits that you intend to use at the
trial of this matter.
AN8WP.RI objection. See general objections which are
incorporated herein by reference. Defendant also specifically
objects insofar as this request for production of documents seeks
information prematurely. subject to amendment and
supplementation based upon continuing discovery and without
waiving said objection, Defendant responds as followsl
Wood's Drive Note and Mortgage
Sporting Green Note and Mortgage
NLI's letter to Nina sanghvi dated January 16, 1995
8
9. If you intend to use any admissions made by the
Plaintiff at trial, identify such admissions.
AHBWIRI Objection. See general objections which are
incorporated herein by reference. Defendant also specifically
objects to this interrogatory as overly broad, vague and
ambiguous. without waiving said objection and reserving the
right to supplement any response not given upon completion of
discovery, Defendant responds to the extent Defendant understands
this request, that Defendant has, to date, not identified any
admissions made by Plaintiff to introduce at trial. However,
this answer is subject to amendment and supplementation based
upon the results of discovery which is ongoing.
e
10. Identify the ten largest shareholders of the
Defendant corporation.
AMS.IRI Not applicable since Defendant, NLI/LF II, L.P., is a
limited partnership.
10
12. Identify each individual at the Resolution Trust
corporation ("RTC") with whom the Defendant corporation had any
communication or meetings concerning in any way whatsoever the
Sporting Green Note and Mortgage and/or the Wood's Drive Note and
Mortgage.
ANSWER I Objection. See general objections which are
incorporated herein by reference. Defendant also specifically
objects to this interrogatory in that the request to identify Anl
communications or meetings with the RTC is overly broad, vague
and seeks information which is not relevant to this lawsuit and
is not reasonably calculated to lead to discovery of admissible
evidence. By way of further answer and reserving the right to
supplement any response not given upon completion of discovery,
without waiving said objection, Defendant responds to the extent
Defendant understands this request, that Defendant is not awara
of any such conversations which specificallY relate to the
sporting Green Note or Mortgage andlor the Wood's Drive Note or
Mortgage in that the aforesaid loans were acquired by Defendant
in conjunction with an acquisition of a group of loans from the
RTC.
12
13. state the amount oC compensation paid for the
assignment of the aporting Green Nots and Mortgage to Defendant
refarenced in '34 of Oofondant'e New Hatter.
AN..IRI Objection. Bee general objections which are
incorporated herein by reCeronco. Defendant also specificallY
objects that the Information requested in this interrogatory is
not relevant to this lawsuit and is not reasonably calculated to
lead to the discovery of admissible evidence.
13
14. state the amount of compensation paid for the
assignment of the Wood's Drive Note and Mortgage to Defendant
referenced in '34 of Defendant's New Matter.
AN8WIRI Objection. See general objections which are
incorporated herein by reference. Defendant also specifically
objects that the information requested in this interrogatory is
not relevant to this lawsuit and is not reasonably calculated to
lead to the discovery of admissible evidence.
14
15. Idantify the entity or individual responsible for
making the payments referenced in the two preceding
interrogatorios.
AM..IRI NLI/LF, II, L.P., a Delaware limited partnership; By:
NLI Land Associates, its general partner; By: National Loan
Investors, L.P., a general partner.
liS
. .-~- ..," .'
16. What is the title and what are the job
responsibilities of Linda Henderson?
AMBWIRI Title: Acquisition Administrator; Responsibilities I
Oversee due diligence; funding and closing of loan portfolio
purchases.
16
VERIFICATION
I, Darren Mindemann, state that I am Unit Chief for
National Loan Inveetors, L,P., a general partner of NLI Land
Associates, the general partner of Defendant, NLI/LF II, L.P. and
that ae such I am authorized to make this Verification on behalf of
Defendant.
The etatements made in
Interrogatoriee are true and correct
information and belief.
the foregoing Anewers to
to the best of my knowledge,
I understand that the statements made in the foregoing
Answers to Interrogatories are made subject to the penalties of 18
Pa. C.S.A. Section 4904 relating to unsworn falsification to
authorities,
~
DARREN MINDEMANN
/ulr3/lulaD/pcc/Dli.rqltaDI
rBDIRMAIf AIfD 'alLAN
~YI 'eter C. Cilio, zequire
Identifioation No.3""
8uit. .00
TWO Plnn center 'lala
'biladelpbia, fA 1.102
(215) 513-7000
Attorney for
Defendant
WOOD'S DaIVI ASSOCIATZ8,
a ,.nnlylvania Ganeral
partnerabip
COURT or COMMON 'LEAS
CUMBIRLAND COUNTY, 'A
ve.
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NO. 15-3154
NLI/Lr II, L. ,.
ANSWER or NLI/Lr II, L.'. TO 'LAINTIrr'8
rIRST SIT 0., RIOUIST8 rOR 'RODUCTION or DOCUMENTS
Pursuant to Rule 4001, ~~. of the Pennsylvania
Rules of civil procedure, defendant, NLI/LF II, L.P. ("NLI" or
"Answering Defendant"), by its undersigned attorneys, hereby
responds to plaintiff's Requests for Production of Documents.
The responses and objections set forth herein are based on
information and documents presently within the possession of
Answering Defendant, and are founded on the present state of
Answering Defendant's review of documents and its ongoing
investigation of documents and potential witnesses.
In providing these answers, Answering Defendant neither
waives nor intends to waive the right to rely upon all
information and documents which have been or will be produced in
discovery or acquired in Answering Defendant's continuing review
and investigation, and Answering Defendant expressly reserves the
right to amend, modify or supplement these responses and
objections andlor rely on additionel information or documents
based on its further review of the documents produced to date,
additional discovery which is conducted, and ongoing
investigation of documents and potential witnesses.
By meking information, materials or documents available
in response to plaintiff's Requests for Production of Documents
(hereinafter "discovery requests"), Answering Defendant neither
waives nor intends to waive any objections regarding plaintiff's
use of such information, materials or documents, including but
not limited to competency, privilege, relevance, materiality and
admissibility.
General Obiectione
1. Answering Defendant objects to Plaintiff's
discovery requests to the extent that they are unduly burdensoma,
expensive, harassing and not reasonably calculated to lead to the
discovery of admissible evidence. As used herein, these terms
meanl (1) that the request so characterized requires a search for
information, materials or documents which are not relevant to or
reasonably calculated to lead to the discovery of admissible
evidence; (2) that the value, if any, of the production of such
information, materials or docu~Bnts is far outweighed by the
burden or cost of producing them; (l) that the request so
characterizsd requires an investigation into matters not within
the knowledge, custody or control of Anawering Defendant; (4)
that the information requested is contained in materials or
documants equally available to tha Plaintiff as to Answering
2
Defendant or that the materials or documents requested are
already in Plaintiff's possession; or (5) that the request so
characterized is intended by the proponent to cause Answering
Defendant to expend time and effort in a search for information
which is of merely marginal interest to the proponent and not
reasonably calculated to lead to the discovery of admissible
evidence.
2. Answering Defendant objects to Plaintiff's
discovery requests to the extent that they seek disclosure of
information and/or identification of materials or documents that
are subject to the attorney-client privilege, the attorney work
product privilege (including, but not limited to, materials or
documents prepared in anticipation of litigation by or for
Answering Defendant, their attorneys, including in-house counsel,
or other representatives, and information, materials or documents
which would disclose the mental impressions, conclusions,
opinions, strategy, or legal theories of Answering Defendant'
attorneys or other representatives concerning any matters at
issue in the litigation) and/or any other applicable privilege or
protection.
J. Answering Defendant objects to Plaintiff's
discovery requests to the extent that they seek information,
materials or documents that are not material or relevant to thia
lawsuit or that are not reasonably calculated to lead to the
discovery of admissible evidence.
3
4. Answering Defendant objects to plaintiff's
discovery request= to the extent that they require Answering
Defendant to assume facts and opinions which are not of record,
untrue or otherwise contradicted by facts and opinions of record.
5. Answering Defendant objects to Plaintiff's
discovery requests to the extent that they merely consist of
legal assertions, argumentative conclusions, or are otherwise
lacking in factual content.
6. Answering Defendant objects to plaintiff's
discovery requests to the extent that they are overly broad,
vague and/or ambiguous. As used herein, the term "overly broad"
means that the request so characterized seeks, at least in part,
information, materials or documents irrelevant in scope, subject
matter andlor time period to the particular matters at issue
between Answering Defendant and plaintiff.
7. Answering Defendant objects to Plaintiff's
discovery requests to the extent that they may purport to seek
all facts or documents on which Answering Defendant may rely in
the defense of this action, because discovery in this case is
still continuing. Accordingly, Answering Defendant reserves the
right to supplement these responsee to Plaintiff's discovery
requeets upon the discovery of additional facts or documents at
any time up to and including the time of trial of this matter.
B. Answering Defendant objects to Plaintiff's
discovery requasts to the extent that they request the
identif ication of "all documants", insofar as such requests
4
purport to require Answering Dpfendant to identify documents
available from public or government sources or to identify
documents produced by Defendant during discovery in this case, or
otharwise in the possession of the Plaintiff or its agents.
Plaintiff and other parties have produced to date numerous
documents upon which Answering Defendant may rely in connection
with this case. Also, many documents are in the public record.
9. Answering Defendant objects to plaintiff's
discovery requests to the extent that they seek identification of
every person or every individual with knowledge of the facts
relevant to this litigation. To date, very few depositions have
been taken in this case. Accordingly, it is impossible for
Answering Defendant to answer these requests completely.
10. Answering Defendant objects to Plaintiff "s
discovery requests to the extent that they seek information
relating to or generated by any expert retained by Answering
Defendant, whom Answering Defendant does not intend to call as a
witness at trial.
11. Answering Defendant objects to Plaintiff's
discovery requests to the extent that they are premature, as
discovery in this case is still continuing. Accordingly,
Answering Defendant reserves the right to supplement these
responses herein upon the discovery of additional facts or
documents at any time up to and including the time of trial of
this matter.
15
12. Answering Dofendant objects to Plaintiff's
discovery requests to the extent that they seek to impose
obligations inconsistent with those set forth in the
Pennsylvania Rules of civil Procedure.
13. To avoid unnecessary expense and duplication,
Answering Defendant objects to production of documents which were
attached to any pleadings filed by Defendant in the above-
captioned case. These documents are already in the possession of
plaintiff andlor its counsel.
Docuaent. 'roduced
1. See attached.
2. Objection. See general objections which are
incorporated herein by reference. NLI also specifically objeots
insofar as this raquest for production of documents seeks
information prematurely.
3. - 4. Objection. See general objections which are
incorporated herein by reference. NLI also objects insofar as
this request for production of documents is vague, nonspecific,
unduly burdensome, expensive, harassing and not reasonably
calculated to lead to the discovery of admissible evidence. NLI
likewise objects to the extent that the request seeks information
which is covered by the attorney-client privilege and attorney-
work product privilege. Without waiving said objection, see the
documents attached hereto.
5. - 6. Objection. See general objections which are
incorporated herein by referencp. NLI also specifically object.
6
insofar as this request for production of documents is unduly
burdensome, vague, expensive, harassing and not intended to lead
to the production of admiesible evidence. Without waiving said
objection, see documents attached hereto.
7. objection. See general objections which are
incorporated herein by reference. NLI also specifically objects
insofar as this request for production of documents is unduly
burdensome, vague and nonspecific in that Defendant does
understand what is meant by "the proposed" assignment of the
sporting Green Note or Mortgage. Without waiving said objection,
see documents attached hereto.
B. Objection. See general objections which are
incorporated herein by reference. NLI also specifically objects
insofar as this request for production of documents is unduly
burdensome, vague and nonepecific in that Defendant does
understand what is meant by "the proposed" assignment of the
Wood's Drive Note or Mortgage. Without waiving said objection,
see documents attached hereto.
9. Not applicable. Defendant has not sought to
"assign, sell or transfer in any form property secured by the
sporting Green or wood's Drive Mortgage".
10. Objection. See general objections which are
incorporated herein by reference. NLI also specificallY objects
insofar as this requeut for prOduction of documents is vague,
ambiguous, burdensome, expensive, harassing and not intended to
lead to the prOduction of admissible evidence. NLI also
7
~
specifically objects insofar as this request for production of
documents seeks information which is protected by the attorney-
client privilege and attorney-work product privilege. without
waiving said objection, see the documents attached hereto.
11. objection. See general objections which are
incorporated herein by reference. NLI also specifically objects
insofar as this request for production of documente is vague,
ambiguous and burdensome. NLI also specificallY objects insofar
as this request for production of documents seeks information
which is protected by the attorney-client privilege and attorney-
work product privilege. Without waiving said objection, see the
documents attached hereto.
12. objection. See general objections which are
incorporated herein by reference. NLI also specifically objects
insofar as this request for production of documents is vague,
ambiguous and burdensome. NLI also specifically objects insofar
as this request for production of documents seeks information
which is protected by the attorney-client privilege and attorney-
work product privilege. Without waiving said objection, see the
documents attached hereto.
13. objection. See general objections which are
incorporated herein by reference. NLI also specifically objects
insofar as this request for production of documents is vague,
ambiguous and burdensome and not intended to lead to the
production of admissible evidence. NLI also specifically objects
insofar as this request for production of documents seeks
B
information which is protected by the attorney-client privilege
and attorney-work product privilege. NLI specificallY objects to
production of Darren Hindemann's Activity Log, which record his
mental impressions, conclusions and opinions relating to the
value and merit of the issues at bar and NLI's strategy, tactics,
conversetions and correspondence with counsel.
14. Objection. See general objections which are
incorporated herein by reference. NLI also objects insofar as
this request for prOduction of documents is vague, nonspecific,
unduly burdensome, expensive, harassing and not reasonably
calculated to lead to the discovery of admissible evidence. NLI
likewisa objects to the extent that the request seeks information
which is covered by the attorney-client privilege and attorney-
work product privilege. without waiving said objection, sae the
documents attached hereto.
15. To the extent they exist, all such documents are
protected by privilege from discovery under RUle 4003.3.
FEDERMAN AND PHELAN
Datel Hay 31, 1996
BYI
C. CILI
ita 900
Two Penn Center Plaza
Philadelphia, PA 19102
(iU!i) 563-7000
.
CERTIFICATE OF SERVICE
I hereby certify thet on June 5.1996. a true end correct copy of the foregoing
"MOTION TO COMPEL ANSWERS AND RESPONSES TO DISCOVERY. was served bV United
Stetes mall, first cless postege propeld. upon the following:
Petor C. Cillo, Esquire
Federmen and Phelen
Two Penn Center Plaza, Suite 900
Phlledelphle. PA 19102
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"anilbutt. PA 11108-11411
17171 233.1731
Allom.V' 10' P\M1t.,.
WOOD'S DRIVE ASSOCIATES,
a Pennsylvanle Ganerel Pertnershlp,
I IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
Plaintiff
v.
NO. 95.3154
: ACTION FOR DECLARATORY JUDGMENT
NLI/LF II. L.P.,
Defendent
ORDER
AND NOW. this
.
'30 day of
'1..A;
, 1996, upon consideration of
Plaintiff's Motion to Stay Motion to Compel Discovery, it Is hereby Ordered that Plelntlff's
Motion to Compel Discovery Is hereby stayed for a period of thirty (30) days. In the event
Plaintiff does not meke appllcetlon to this Court to reschedule the hearing within thirty (30)
deys from the date hereof. Pleintlff's Motion to Compel Discovery shall be deemed withdrawn.
w
BY THE COURT:
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4. Tho portlos agroo thot during tho deposition 01 the Dofendent'e Rocords
Custodlon, the ISSUDS ralsod by tho Plaintiff in Its Motion to Compol mey be rosolved.
6. Tho partlos thoreby reqllostthattho Court agroo to postpona tamporarlly
the haer/ng In connaction with tho Plaintiff's Motion to Compol.
6. In addition. Plaintill's counsol is also roquired to attend a heerlng In
Bankruptcy Court In Philadelphia In In Ro Foundation for New Era Phllanthroov. Docket Number
96.13729, also scheduled for August 1. 1996 and August 2. 1996.
7. The hearing In Bankruptcy Court In Philadelphia Involves saveral hundrad
parties and numerous attornays. and counsel for the Plaintiff cannot reschedule tha hearing
currantly schedulad for August 1 and August 2. 1996.
B. Plaintiff has recelvad the concurrence of Defendant's counsel who joins
in with this motion.
.2.
WHEREFORE, Plaintiff Woods Drlva Associates respectfully requests that the
Court enter an Order tamporarlly staying Plelntlfl's Motion to Com pal Discovery for e period
of thirty (30) days.
108644
RHOADS &, SINON LLP /
!i I
1 I; ( II
By: / ' ! /1/1 I~~LJ' I j
J~sse R. Ruhl
PI O. Box 1146
Ijarrlsburg, PA 171 OB- 1 146
(717) 233-6731
Attorneys for Plelntlff
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11111 UJ.b1Jl
AtlOll1lYI '01 ''tlIinlltl
WOOD'S DRIVE ASSOCIATES.
a Pennsylvania Ganeral Partnership
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY. PENNSYLVANIA
Plelntiff
v.
I NO. 95.3154
I ACTION FOR DECLARATORY JUDGMENT
NLl/LF II, L.P.,
Defendant
.
.. .. to .. .. 0..... Ot .0 t. .. O. to .. Ot ..00 Ot ...... 00 ..
PRAECIPE TO SETTLE. DISCONTINUE AND END
TO: THE PROTHONOTARY
Kindly mark the above-ceptloned mattar settled. discontinued and ended with
prejudice.
RHOADS & SINON LLPI.
By: ./1 l/u~
J se R. Rulli
P O. Box 1146
arrlsburg, PA 17108.1146
17171 233-6731
Dated I August 26. 1996
Attorneys for Plelntiff
110004
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