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HomeMy WebLinkAbout97-03018 .~' ~ ... ~ t.:t l ~ ... \I -() [ :s (;:J ~ . .. " - ~ - .... q! l::Q . 11\ ~ \I "'- Cd (t ~ '- cJ . - 0 f VI '1 .<1: J ~ ~ . .:s ~ 1.11 . ~ . J-1] . .:t :~ " ;,$ A~ ~ .~ ';;:~~ ',1 ,.":;{ " :\1 " ,~, .'::" i'~ " ;'.~<<1 , '\''ll ,.ffi ':~ ,gj ".1\l il~~ :111 , ,:'1, i;~ ,._mm: , ~ .J. ;~ '~ '?' . ~~it },)' '-~. ;c... 'It' .f, .~ :~ (~ ,', ~ "I'~~ .. " t ~, -.:;- -;-~ . :~ :{ ~ C\ ~ c: "'" .. 'J ~g - bS: - O~ :c ~~ 0<< q~ 0 M ..,. o. ::'l fir ffi~ IJ_I :z: if ~ :n .- ..?: ~ ,... ::J a- 0 .. , 7. On or about March 27. 1997, Dabtor Aiello transferred his interest in this agreement to en entity known as Cumberland Equities. Inc. ("Cumberland Equities"). A true and correct copy of the assignment of this interest is attached herel" as Exhibit "B." 8. Debtor Aiello purported to trar..:!ter his interest in the agreement and the proceeds therefrom for the purpose of shielding assets from ci'9ditors. 9. It is believed and therefore averred that Debtor Aiello trensferred his interest in the agreement to Defendant Cumberland Equities for no consideration or insufficient consideration. 10. Debtor Aiello transferred his interest in the agreement to Defendant Cumberland Equities on March 27.1997 with full knowledge that at least one creditor was filing suit (1573 Equity 1997) against Debtor Aiello for the purpose of seeking payment as a result of the transaction evidenced in Exhibit "A." A true and correct copy of deposition excerpts from the deposition of David Aiello which set forth Debtor Aiello's knowledge of the pending litigation on the date of the March 27, 1997 transfer (p. 159. lines 11.13) is attached hereto as Exhibit "C." 11. Debtor Aiello transferred his own interest in the agreement to Defendant Cumberland Equities also for the purpose of shielding the proceeds from the settlement on the above referenced transaction from Plaintiff. 12. Defendant Cumberland Equities. Inc. is owned either by David Aiello or David Aiello's father- in,law. David Llle Manley. 13. Debtor Aiello's father,in.law. David Lee Manley, testified on April 11,1997 that Debtor Aiello is the owner of Cumberland Equities. A true and correct copy of a deposition transcript by which David Lee Manley identified Debtor Aiello as the Cumberland Equities' owner (p. 7) Is attached hereto as Exhibit "D." 14. As a result of the transaction identified in Exhibit "A." Defendant Cumberland Equities received proceeds in an amount in excess of Plaintiff's judgment. A true and correct copy of the settlement sheet in the above referenced transaction is attached hereto as Exhibit "E." 15. As a result of the transaction identified in Exhibit "A," Respondent Cumberland Equities received proceeds in excess of $640.000.00. 16. As a result of the transaction referred to in Exhibit" A," Respondent Cumberland Equities may receive additional proceeds pursuant to terms of an escrow agreement in an amount equalling $500.000.00. 17. Debtor Aiello transferred his interest in the agreement and the proceeds therefrom to Defendant Cumberland Equities. Inc. with intent to hinder delay and/or defraud Pleintiff. 1 B. Debtor Aiello did not receive reasonably equivalent value (or any value) in exchange for the March 27. 1997 transfer. 19. Debtor Aiello's remaining assets were unreasonably small in relation to the value of the asset (and the proceeds therefrom) transferred. 20. Debtor Aiello intended to incur and/or believed and reasonably should have believed that Debtor Aiello would incur and continue to incur debts beyond Debtor Aiello's ability to pay as they became due. including Aiello's debt to Plaintiff. 21. The March 27. 1997 transfer to Cumberland Equltias was made to an insider. in that Cumberland Equities is owned by either Debtor Aiello and/or Debtor Aiello's father-in-law. 22. Debtor Aiello retained possession and control of the shares of stock of Cumberland Equities as well as the proceeds from the real estate settlement after the March 27. , 997 transfer. 23. The March 27. 1997 transfer was concealed from Plaintiff despite a prior document production request from Plaintiff to Debtor which imposed continuing obligations upon Debtor Aiello to produce agreement copies. 24. Plaintiff had already obtained judgment against Debtor at the time that the March 27. '997 transfer took place. , >. " I :.... (): ...-:: - ~> 11IC.' ~ , .x L)..,: C'" ' J... _.' '-".~ , . ,,' , ::.i ~i' ,.. c" :... C}"-4 :.' 'J leI.. ....< -" 4.l~' - I ~-(.,:j ,.~ - IJ lJ.. 1.:_ ~ -' 0 C' (.) 'f l, I I ~ I Hk, I . REAL ESTATE PURCHASE AGREEMENT This Real Estate Purchase Agreement (the" Agreement") is made and entered into as of December 10. 1996 by and between DAVID AIELLO whose address is P.O. Box 382, Camp Hill. Pennsylvania 17011 ("Seller"). and EXEL LOGlSTICS,/NC. a Massachusells COrporation. whose address is SOl W. Schrock Road, Westerville, Ohio 43081 ("Buyer"). Back~ound Seller intends to acquire the necessary real property to develop a mixed Use light industrial park of approximately 173 acres located between U.S. Route 11, PA Route 465 (Allen Road) and the Exit 12 1-81 Interchange near the Borough of Carlisle, Cumberland County, PA, known as Eden Business Center. Buyer wishes to purchase and Seller and wishes to sell approximately 100 acres of the proposed Eden Business Center. located in proposed Phase I thereof. . A~eement In consideration of the murual promises, covenants. and agreements hereinafter set forth, and for other good and valuable consideration. Seller and Buyer hereby agree as follows: U, Purchase and Sale of the Premises. Oh and subject to the terms and conditions set forth in this Agreement. Seller shall sell. convey, assign and transfer to Buyer, and Buyer shall purchase from Seller all of Seller's right. title and interest in and to that. celtain approximately 99.665 acre parcel of real property located in the Borough of Carlisle. Cumberland County. Pennsylvania as the same is described on the attached Exhibit A and as shown on the attached Exhibit F. together with all improvements and appurtenances located thereon or related thereto and all of Seller's right, title and imerest in and to any and all adjacent streets. roads. alleys, easements or rights-of-way relating or pertaining thereto (the "Premises"). Subject further to the terms and conditions set forth in ~IO herein, Seller shall have the option to repurchase a portion of the Premises described herein. When a-mutually acceptable survey has been completed. as provided for in ~5, below. the parties agree that the metes and bounds description set forth therein shall become the description of the Premises. ~2. Purchase Price. The total Purchase Price (the "Purchase Price") for the Premises shall be 53.500,000. The Purchase Price shall be payable by wire transfer of immediately available funds or bank check at the closing and shall be subject to such prorations, credits. allowances. or other adjusanents as are provided for in this Agreement. ~3. DeDoslllEscrow Al!cnt. Within three (3) days after this Agreement has been fully executed by the parties. Buyer shall deposit with the Escrow Agent (as hereinafter defined) the amount of 525.000 (the "Deposit") and a copy of this Agreement. The Deposit shall be held by the Escrow Agent and shall be disbursed in accordance with the following terms and conditions: If the purchase and sale oi the Premises is: (a) consummated. the Deposit shall be credited against the Purchase Price at closing; (b) not consummated because of the 001~, ooa allJM7.fllIAL.tsT4f1.PU10IAU.ACUt ,. " nonsatisfaction or nonwaiver of any of Buyer's contingencies or conditions set forth in this Agreement, the Deposit shall be rerurned to Buyer: (c) not consummated as a result of a breach ~r d~fault by Buyer..Seller shall be entitled. as its sole ~nd exclusive remedy. to the Deposil as liquidated damages In full settlement of any and all rights or claims which Seller may have against Buyer: and (d) not consummated as a result of a breach or default by Seller. Buyer shall be entitled to the rerum of the Deposit and Buyer shall have the right to pursue any right at law or in equity (including specific performance) which Buyer may have as a result of Seller's breach or default. Seller's receipt of the Deposit as liquidated damages is an acknowledgment by Seller and Buyer that the damages suffered by Seller upon Buyer's breach or default of this Agreement would be difficult to determine and that such receipt by Seller is not intended to be a penalty. Upon delivery of a copy of the executed Agreement to Escrow Agent. and acceptance of such Agreement by Escrow Agent. the escrow shall be deemed to be "open". The Escrow Agent shall give written notification to each of the parties of such opening and the date thereof. By its acceptance. the Escrow Agent agrees to act as such and to perform its duties in accordance with the provisions hereof, together with the provisions of the customary supplemental instructions of the Escrow Agent murually agreed to by Seller. Buyer and Escrow Agent, and such other joint written instructions hereafter delivered and executed by the parties. In the event of any conflict between the provisions of the supplell}ental instructions and the text of this Agreement. then the provisions of this Agreement shall control. The Escrow Agent shall be the Title Company. as hereinafter defined, and the Escrow Agent shall invest the Deposit in an interest bearing account as directed by Buyer. Any interest earned thereon shall become part of the Deposit. g4. Evidence of Title. After this Agreement has been fully executed by the parties. Buyer. at Seller's sole cost and expense. will order a commiunent for a current ALTA Form B Owner's Title Insurance Policy with extended coverage in the face amount of the Purchase Price for the Premises and issued by First American Title Insurance Company through A-I Abstract Associates, Inc. (the "Title Company"). The title commitment shall show in Seller, (or in an owner with whom Seller has a legally enforceable right to obtain conveyance of the Premises), good, marketable fee simple and indefeasible title to the Premises, in fee simple. free and clear of all liens and encumbrances. excepting only: (a) zoning and building laws, or-dinances and regulations; (b) legal streets and highways; (c) building set back lines. rights,of,way. covenants. restrictions. conditions. and easements of record reasonably acceptable to Buyer: (d) the lien of real estate taxes and assessments which are not then due and payable; and (e) monetary liens that are to be released at or prior to closing. The title commitment shall set forth the state of title to the Premises. together with all exceptions or conditions to such title which would appear in an owner's title insurance policy. and shall contain true. correct and legible copies of all instruments referred to in Schedule B to the commiunent as conditions or exceptions to title to the Premises. The title commitment shall contain the express commitment of the title company issuing the same to issue an owner's title insurance policy to Buyer in the amount of the Purchase Price for the Premises. insuring title to the Premises in Buyer subject only to the exceptions describeiI in the following paragraph. Prior to the closing. Buyer. at Seller's sole COSt and expense. shall cause to be furnished to Buyer an updated title commitment certilied to a date not more than 10 days prior to the closing and an oral report to the date of closing. oce lO'u' DOCS IXUr.ol.lI'~L..UTAn.'U'CllASI.AGT01 - 2. I. ,. At the closing. Seller shall pay all premiums. commitment fees. search fee~ and olher charges required for the issuance to Buyer of an owner's title Insurance policy in accordance with said commitment and this Agreement. The title policy shall be dated as of the date of the closing. shall be Issued in the amount of the Purchase Price for the Premises. and shall insure in Buyer good. marketable and indefeasible title. in fee simple. to the Premises. The title policy shall contain only those exceptions set forth as items (a) through (d) in the first paragraph of this 94 ('Permitted Exceptions') and the standard preprinted exceptions contained in Schedule B of the AL T A Form B Owner's Title Insurance Policy shall be deleted. The title policy shall also include zoning, contiguity, comprehensive and access endorsements and. if available through the Title Company. a so called 'tax parcel endorsement" listing all of the tax parcel identification numbers affecting the portion of the Premises being purchased and insuring that such tax parcel identification numbers affect the portion of the Premises being purchased and no other property.. and that no other tax parcel identification numbers alfect the portion of the Premises being purchased. The title policy shall also include such other endorsements as Buyer may reasonably request based upon the matters set forth in the title commitment and survey. 95., Survev. The Premises arc a single tract and have been designated as tax parcel 50-8-581-3. Based upon Exhibit A and the approximately 99.665 acres comprising the Premises. Seller has arranged for the completion of a survey. and within seven (7) days after this Agreement has been fully executed by the parties. Seller. at Seller's sole COSt and expense. will deliver a survey of the Premises to Buyer and to the Title Company. The survey shall be prepared by Advantage Engineering Services. Inc., 1104 Femwood Avenue, Camp Hill, Pennsylvania 17011 and shall be currently dated (dated or recertified after the date of this 'Agreement). shall show the location of all improvements. fences. streams. ponds, lakes. rivers and other water courses, casements. roads and rights,of-way; shall identify all easements by including the recording information for the same; shall show all encroaclunents upon the Premises and shall show all encroaclunents of the improvements on the Premises on other property and shall show in feet and inches the magniNde of such encroaclunents: and shall show thereon a legal description of the boundaries of the Premises by metes and bounds or other appropriate legal description, together with the number of acres contained therein to the nearest thousandths. Additionally. the surveyor shall state whether or not the property appears on any U.S. Department of H.U.D. Flood Insurance Boundary Map and. if so, further state the "Flood Hazard" designation (or designations) and the survey shall satisfy the "Minimum Standard Requirements for ALTAlACSM Land Title Surveys". jointly established and adopted by ALTA and ACSM on October 19. 1992. and shall meet the accuracy requirements of a Class A Survey as defined therein. The surveyor shall certify to Buyer and to the Title Company that the survey was made from an aCNal field inspection: that it is correct: that there arc no visible discrepancies. conflicts. encroaclunents. overlapping of improvements. casements. roads or rights-of-way except as shown on the survey. and that the survey is a true. correct. and accurate representation of the Premises. The description contained in the survey, once approved by Buyer. shall be the legal description of the Premises for the purposes of conve)'ance. 96. Review or Title Evidence and Survev. Buyer shall have until closing to review the thle commitment and survey and to deliver in writing to Seller such objection~ as Buyer may have to anything contained or set forth therein including the easements shown in Exhibit A. or in the evidence of Seller's rights to the Premises. Any such item to which Buyer docs not object shall be deemed to be a Permitted Exception. except for those additional items which may appear oat fOIlIt 00C1 t."lIu~r UltAL.UTAlI. rUlOIAU ..CT 01 .3 . on the title insurance update pursuant to the provisions of ~4. above and exceptthaL in no event shall any monetary !iens (other .than real estate taxes and assessments not yet due and payable) be con~lde.red Permlll~d Exceptl~ns. whether or not e~pressly objected to. If Buyer shall raise any objections to the mle commnment or surveyor eVidence of Seller's rights 10 the Premises Seller shall. al its sole cost and expense and within 10 days thereafter. or wilhin such additionai time period as Seller and Buyer may murually agree upon. satisfy such objections. All such objections relating to monetary Iiell! shall be satisried by Seller at or prior to the closing and Seller shall diligently pursue the satisfaction of any other objections. either by satisfying the same or by obtaining title insurance against the same; provided. however. Seller shall not provide any title indemnities to the title company without Buyer's prior wrillen consent. If Seller is unable to satisfy all of the objections of Buyer within such 10 days or such additional time period as may be agreed upon. then Buyer shall have me option of either (a) tenninating this Agreement by promptly giving written notice of tennination to Seller, in which event the Deposit shall be rerumed to Buyer and. thereafter. neither party shall have any funher liability or responsibility hereunder by reason of Buyer's titie objections or otherwise. or (b) knowingly taking tille to the Premises subject to any such additional title exception(s). in which event Buyer shall have no funher cause of action or claim against Seller with respect to the additional title exception(s). ~7. Taxes and Assessments: Prorations. Seller shall payor credit the Purchase Price for the amount of all delinquent real estate taxes. including penalties and interest. and all special assessments that arc a lien as of the day of closing. both current and reassessed and whether due or to become due. Seller shall also credit the Purchase Price for all unpaid real estate taxes not yet due for the years prior to the closing and a ponion of such taxes for the year of closing prorated through the date of closing. County and municipal taXes shall be prorated on a calendar year basis. and school district taxes on a July I riscal year basis. The proration of the undetennined taxes shall be based upon a 36S,day year and on the most recently available tax rate and valuation. It is the intention of the panics in making the tax proration to allow Buyer a credit as close in amount as possible to the amount which Buyer will be required to pay giving effect to applicable exemptions. recently voted millage. changes in valuation or other similar mailers which may have an effect on the amount of the real estate taxes. whether or not they have been certified. Seller shall also be liable for any agriculrural real estate taX recoupment or similar recoupment that may be due and owing as a result of this transaction or Buyer's conversion of the use of the Premises from its current use. whenever the same may be due and payable and shall either pay the same or credit the Purchase Price. The acrual amount of such payment or credit. if any. shall be detennined by the records of lhe County in which the Premises arc located. To the extentthatlhe exact amount of any such recoupment caMot be acrually detennined. the panics. based upon the estimates provided for by the County taxing authorities. shall estimate the same for the purposes of closing and once acrually detennined the panics shall reprorate the same and adjust the amounts credited or paid at closing. Since the Premises arc pan of a larger lax parcel tract. the prorations and credits set fonh in this F shall be based upon the fraction which has as ilS numerator the number of acres comprising the Premises and which has as ilS denominator the number of acres of lhe larger lax parcel tract of which lhe Premises arc a part. The provisions hereof with respect to a redetennination of the prorations shall survive the closing. . ~, OCllO'lIt DOC1 L'UU01.1IUAI..UTAT1i!U1OCAU..Ac;'01 . . ~S'. Seller's Imoro~'ernent Ohlleatlons: Seller acknowledges that in order for Buyer to beneficially and economically use the Premises for the construcdon and use thereof as a warehousing and distribution center. certain improvements are required to be made and constructed within certain time periods with respect to infrastrucrure and suPPOrt systems adjacent to and surrounding the Premises (collectively. "Seller's Improvement Obligations"). The Seller's Improvement Obligations and the time periods for the completion of the same are set forth on the allached Exhibit B. At the closing. subject to Buyer's option below, the parties shall escrow with the Escrow Agent Five Hundred Thousand Dollars (5500,000.00) of the Purchase Price as security for Seller's timely and proper completion of Seller's Improvement Obligations. Each of Seller's Improvement Obligations shall be constructed in accordance with all applicable governmental requirements. The parties shall. at the closing. enter into a separate escrow agreement. substantially in the form attached hereto as Exhibit B-1, which shall provide for the release to Buyer of all or part of the escrowed funds if Seller's Improvement Obligations are not timely and properly completed. At the closing and at Buyer's option and in lieu of the escrow as provided for in the escrow agreement, Seller shall deliver to Buyer an unconditional and irrevocable leller of credit from a bank acceptable to Buyer in the amount of Five Hundred Thousand Dollars (S5OO,OOO.OO) and shall deposit with said bank the amount of Five Hundred Thousand Dollars (5500,000.00) cash collateral to secure the letter of credit as security for Seller's timely and proper completion of Seller's Improvement Obligations within the time periods set forth on Exhibit B. Buyer will pay the letter of credit fee. If Seller defaults in the perfonnance of Seller's Improvement Obltgatlons. I:lUYCI. by wduen notice to the issuer thereof. shall have the right to draw down on the letter of credit. The letter of credit shall be for a tenn expiring no earlier than 60 days after the last date set forth on Exhibit B. ~9. Seller's Acouisition of the Premises. As of the date of this Agreement, Seller does not own the Premises but Seller represents and warrants to Buyer that it has the legal. valid and' enforceable right to acquire the Premises (or the larger tract of which the Premises are a part) prior to the closing and Seller covenants that it shall acquire the same on or before the closing contemplated by this Agreement. except and only except. if Buyer terminates this Agreement prior to the date of closing in accordance with any termination right it has under this Agreement or the closing does not occur because of a breach or default by Buyer. If Seller is in default of its representations and covenants set forth in this 99. in addition to any other right which it may have in law or in equity. Seller shall be liable to Buyer for an amount not to ellceed Twenty Thousand Dollars (520.000.00) to compensate Buyer for its reasonable out of pocket costs associated with its due diligence of the Premises, including but not limited to environmental. engineering. architecrural and legal rOue Diligence Costs"). The provisions of this 99 shall survive the termination of this Agreement by Buyer because of Seller's breach under this 99. no. ..~Ilen Road Access/Seller's Ootion to Reourchase excess Acreaee. The parties hereto acknowledge that. in order for Buyer to use and develop the Premises. Buyer requires access to Allen Road from that approximate 89.667 acres of the Premises designated as "Lot I" on the attached Exhibit F adjacent to that approximate 8.538 acre portion of the Premises designated on the attached Exhibit F as "Lot 2". Other than the necessity for such access and the use and maintenance of the same. Buyer does not require Lot 2 and Buyer is willing to grant to Seller. and Seller desires. an option to repurchase Lot 2 or the balance thereof (the "Excess Acreage") not needed by Buyer for ingress or egress to or from Lot I from Allen Road. Therefore. the parties agree as follows: 000 11\&I" DOCS t'<COI~' Illt.loL.UTATE.rUIOIASIt.'crOf .5. .. t. (a) Not laler than 90 days after lhe closing, Buyer will apply at ilS sole COSt amI expense to the appropriate governmenlal authorities for a division of the Premises into separate parcels so that access 10, and curb CUIS on. Allen Road as approximalely depicted on the attached Exhibit F (the' Access Route') may be eSlabllshed. However. the final configuration of the divided parcels and Ihe location and dimensions of the Access Route and curb cUts Onto Allen Road caMot be detennined before closing and therefore. Buyer reserves the righl to reconfigure lhe Access Route and the divided parcels and place its Access Route and curb cuts onto Allen Road at such location on Lot 2 and at such widths which may be required by any governmental authorities and/or which. in Buyer's sole judgment, are desirable or necessary for the use and development of the Premises. Seller, however, acknowledges that Buyer may not be able to obtain all governmental approvals for the Access Route and/or to effect a division of the Premises which is suitable in Buyer's sole judgment for Buyer's requirements. and that Buyer may therefore need to retain the entire Premises. (b) In consideration of the foregoing recitals. effective as of the date of closing, Seller and Buyer agree Ihat Seller shall have an option. contingent upon the last sentence of subsection (a) above (the 'Option') to repurchase the Excess Acreage on Lot 2 subject to, and upon. the following lenns: . (i) The purchase price for the Excess Acreage shall be Ten Dollars (SIO.oo) per acre or any fraction thereof. If Seller desires a surveyor 'evidence of litle or any olher due diligence review of the Excess Acreage. it shall obtain and pay for the same at its sole expense. (iil (iii) Buyer's conveyance of the Excess Acreage shall be 'as.is'. without any representations or warranties, except by Special Warranty Deed. subject to all of the Pennitted Exceptions affecting the Premises and/or the Excess Acreage when Buyer received title and such utilities or easements necessary for Buyer's construction. development or use of Lot 1. free and clear of any monetary liens (except those created by Seller) and subject to any mutually agreeable easement and maintenance agreements between Buyer and Seiler for Seller's use of the Access Route for its access to Ihe Excess Acreage from Allen Road. (iv) All conveyance fees and any other governmental taxes. charges or impositions on the conveyance of the Excess Acreage and any other costs or expenses of Ihe lransaction shall be paid by Seller. If Seller exercises its Oplion and purchases the Excess Acreage. Buyer agrees that. if Seller caMot obtain access and curb cuts from its frol\tage on Ihe Excess Acreage. Buyer will provide access to the same from Allen Ro~d through its Access Roule pursuant to an casement and maintenance (v). not ~Il' DOn IUD11DJ.lIILi\. mAU.'UICHAJI."CfOt . 6 . agreement or reservations in the Special Warranty Deed as may be agreed upon by the panics. (vi) Unless Seller's Option is tenninated by the condilions in subsection (b)(vii) below. Seller may. if Buyer has completed its work described in said subsection. exercise its Option only after the earlier of October 16 1997 or the completion of the Seller's Improvement Obligations and before November 15. 1997 by dellvering notice to Buyer as provided in this Agreement. Closing shall be held not later than December 15. 1997. If, by October 15. 1997. (I) Buyer has been unable to complete the legal subdivision of the Premises and establish ilS Access Route, curb CUts or any other requirements which are necessary or desirable in its sole judgment andlor to the satisfaction of the applicable governmental authorities or. (Il) the Seller's Improvement Obligations are not fully completed by Seller as described in 98 above. Seller's Option to repurchase the Excess Acreage shalltenninate as of said date and neither party hereto shall have any further obligations with respect to the Option. 911. Transfer of Premlses/Closinl! EXDenses. At the closing. Seller shall convey and transfer to Buyer good, marketable and indefeasible title, in fee simple, to the Premises by a transferable and recordable Special Warranty Deed free and clear of all liens and encumbrances. except Pennilled Exceptions. Seller, at its sole cost and expense, shall obtain all necessary split approvals for the conveyance of the Premises as a separate taX parcel and shall cause such Special Warranty Deed to contain all necessary state, county and local approvals required to transfer and record the Special Warranty Deed. Seller shall. at the request of Buyer. execute and deliver to Buyer at the closing an affidavit certifying to all off-record title mailers and other similar mailers contained in a customary "Seller's Affidavit" and infonnation necessary to satisfy the reporting requirements of Section 6045 of the Internal Revenue Code. Seller and Buyer shall each pay one,half of the real property conveyance fees arising out of Seller's conveyance of the Premises to Buyer. Seller shall pay all the survey costS, all title insurance costs. escrow fees and any other costs expressly stipulated to be paid by Seller. (vii) , 912; Documents to be Delivered bv Seller. Within 15 days after the date of this Agreement. Seller shall deliver to Buyer all engineering, soil reportS. environmental reportS/audits and wetland reportS which Seller has in its possession relating to the Premises or the larger parcel of which it is a pan (collectively. "Seller's ReportS"). In dellvering Seller's ReportS to Buyer, Seller in its cover letter sending the same, shall list the type of report. who prepared the same and the date of the report. The Seller's ReportS arc given to Buyer without any representations or warranties as to the mailers set forth therein or the conclusions reached therein. except as set forth in 914(i) and except ils representation and warranty that the Seller's ReportS arc complete and no other such reports are in Seller's possession. Seller's ReportS shall be incorporated herein by this reference. Additionally. Seller shall, wilhin 5 days after the date of this Agreement. shall deliver to Buyer copies of the agreements evidencing Seller's right to acquire the Premises or the larger parcel of which it is a part. Seller shall keep Buyer currently infonned of all of ilS negotiations with the Borough of Carlisle (or any other applicJbie 001 tMl' DCa OlOtIOl.Ul"'I..UT,UI.,uaOIASI."crOI . 7- gove.ming auth?rity). including copies of any information regarding subdivision applications. plaulng, lot spins, easementS and any other mailers affecting the developmem of the Premises. ~13. Buver's Conlin2encies. This Agreement. thc obligations of Buyer hercundcr and thc closing of thc purchasc and sale comemplatcd undcr this Agrecmem arc comingem upon the satisfaction or waivcr in writing by Buyer, on or beforc thc closing. of each of the following conditions: (a) Buyer dctcrmining. in its solc discretion. that thc Premiscs arc physically and economically acccptable for Buycr's intended uscs. Buyer shall bc pcrmitted to makc such soil testS. topographical. environmcntal or wctland studics and any othcr physical and enginccring cxaminations as Buycr decms appropriatc in order to detcrminc thc acccptability of thc Prcmises. Sellcr shall permit Buyer (or Buyer's agentS). and shall obtain any conscnts requircd by thc owncr of the Premises, to permit Buyer to havc acccss to the Premiscs at reasonablc times so that Buyer can make any such examinations. (b), Buycr determining. in itS sole discretion. that Buyer will be able to obtain all necessary site plan. building and other governmental approvals for Buyer's intcnded uses of the Premises. that the zoning of thc Premises is acceptable to Buyer and that there are no covenants. conditions, restrictions or easements affecting the Premises which would interfere with Buyer's intendcd dcvelopment of the Premises. (c) Buycr obtaining assurances that sewer. water. gas. eleciricity. trash. telephonc and other utility scrvices are. in thc solc discretion of Buyer, satisfactorily located near or at the Premises and are of adequate size and capacity for Buyer's intended uses of the Premises. and that Sellcr, at itS sole cost. will be able to extend the same to thc property line of the Premises whcn such extcnsions are required by Buyer. (d) Buyer satisfying itSelf that Buyer will have ingress or egress to the Premises acceptable to Buyer. including appropriate curb cuts, from publicly dedicated streets or roads. (e) Buyer assuring itself that Seller is capable of timcly and properly completing the Seller's ImprovemcnrObligations. (0 Buyer obtaining approval of this Agreement and the transactions comemplated by this Agreemem by the Board of Directors of NFC pic ("NFC Board"). an affiliate of Buyer. If Buycr is unable to obtain approval of this Agreement by the NFC Board within thirty (30) calendar days from the date of this Agreemem. Buyer shall have right to terminate this Agreement by giving wrillen notice to Scllcr not later ihan such thirtieth (30th) calendar day. (f notice of termination is not given by Buyer on or before such thirty (30) calendar day. the right of Buyer III terminate this Agreemem pursuant to this Section 9(e) shall aUlonl3lic:llly terminate and be of no furthcr force or effect. \ (10" lOt'" ooa I.'CCO'~'.ll'I.'L.UfATI"UICMAJ'."cr Qr .8- (g) Buyer assuring itself that Seller has removed all surface trash. debris. junk or similar items from Ihe Premises. (h) Buyer assuring itself thatlhe closing can occur no later than Janual)' 20, 1997. in order for Buyer to effectuate a ~ 1031 e~change. Buyer shall restore the Premises to as near a condition as it existed immediately prior 10 the conducting of any such inspection or testing as is reasonably practicable upon completion of any such inspection or testing. Buyer shall also indemnify and hold Seller harmless from and against any damage or loss to property or injul)' to person arising direclly from Buyer or its ~gents'. inspection or testing of the Premises. . ,.. Buyer agrees that Seller may remove the existing house and barn on the Premises (if the foundations are also removed and the property leveled and all debris removed) at any time up to April 30, 1997, provided. however. that if Buyer in its sole judgment proceeds with _,~ development, Buyer may remove the same upon five (5) days notice to Seller. . The panies agree that if all of the contingencies set fonh above have not bee:! misfitll -- or waived in writing by Buyer by the closing. this Agreement. unless the panies agree to an eXlension of the closing for the satisfaction or waiver of Ihese contingencies. shall become null and void. At Buyer's option exercised in writing no later than Janual)' 20. 1997, Buyer may automatically extend the time period for the satisfaction or waiver of the contingencies for an additional 60 days by depositing with Escrow Agent an additional 525.000 and the Closing shall . be extended ~ccordingly. U4. Reoresentatlons. Warranties and Covenants of Seller. Seller represents, warrants and covenants, as applicable to Buyer as to the following as of the date firs! set forth above and as of the date of closing. except where specific reference is made to another date or dates. in which case such date or dates will apply: i \ \ (a) To the best of Seller's knowledge, William J. Lippert. JoaMa W. Lippert. John M. Lippert, Beulah B. Lippen and Mal)' Alice Lippert are the fee simple owners (the 'Owner') of the Premises. and, except as set forth in subsection (d) below. there are no adverse or other parties in possession of the Premises. and no party has been granted any license. lease. or other right relating to the use or possession of the Pre!llises, or any part thereof. (b) Seller has not received notice of. and has no other knowledge or information of. any pending or contemplated condemnation action with respect to the Premises. or any part thereof. including access. (c) Seller has not received notice of. and has no other knowledge or information of. any pending or contemplated change in any govermnental regulation or private restriction applicable to the Premises. any pending or threatened judicial or administrative action or proceedings in any court or before any go\'ernl11cmal authority or arbitration board or lribunal. or any such action or proceeding pending or threatened by adjacent landowners or other persons. any oi which 00110o'l1' oor:s Utat:ot.:lllAL.UTATllUIOIASI.ACT Of .9- would result in any material change in the condition of the Premises. or anI' pan thereof. or to the access 10 the Premises. . (d), Seller ~as. or has a legally enforceab~e right to obtain. the full right, power. and authomy to sell and convey the Premises to Buyer as provided in this Agreement and to carl}' out Seller's obligations hereunder. Ir Seller is a corporation or partne~hip. all requisite co!"'orate .or partnership action of Seller necessal}' to authorize Seller to enter IntO thiS Agreement and perfonn its obligations hereunder have been or will be taken. The' oinder of no person or entity other than Seller will be necessa to convey the Premises an comp ete y to uyer at the c osmg. ~ (e) There will be no incomplete or unpaid for improvements in. to or about the Premises which might fonn the basis of a mechanic's lien which will have been made to the Premises by or at the direction of Seller or Owner. (0 To the best of Seller's knowledge. except for any rights granted for agricultural purposes as set forth in the attached Exhibit C, there are no off-record or undisclosed legal or equitable interests in the Premises owned or claimed by any other person. finn, corporation or other entity. (g) There are no attachments. executions. assignments for the benefit of creditors, or voluntal}' or involuntal}' proceedings in bankruptcy (or under any other debtor relief laws) contemplated by or threatened against Seller or the Premises which would adversely affect Seller's interest in the Pre'mises or Buyer's title to the ' Premises subsequent to the closing. . . (h) Other than as disclosed on the attached Exhibit D. Seller has not received notice of, nor does it have any other knowledge or infonnation of. contemplated improvements to the Premises by any public authority, the costs of which are to be assessed, as special taxes or otherwise. against the Premises in the future. (i) To Seller's knowledge and except as may be set forth in the Seller,:s Reports (a) no materials which would constitute "Hazardous Wastes". "Hazardous Substances", "Hazardous Material", "Pollutants", "Toxic Substances". "Solid Wastes", or "Contaminants" (as such tenns are defined by any applicable law. ordinance. role. prohibition or regulation. including but not limited to the Comprehensive Environmemal Response. Compensation and Liability Act of 1980. as amended. the Hazardous Materials Transportation Act. the Resource Conservation Recovel}' Act. the Toxic Substances Control Act, the Clean Air Act, as amended. the Federal Water Pollution and Comrol Act. as amended. or their state equivalems) with the respect to air. water or environmental conditions are located on. beneath or about the Premises: (bl the Premises has not been used for the treatment. storage or disposal of any of the aforementioned materials. nor has there been any release or discharge of any of the aforememioned materials un. beneath or from the Premises: (el there arc no threatened or pending investigations concerning the Premises by any Pennsylvania or Federal agency DOl ....Jt DOeS CXtat~I'llltAL..tn"Tl:.ruaCll,t,Jt...CTOl - 10- , . charged by la~ with the enf~rcement of any environmental law or regulation; (d) the Property IS not now bemg used and has not been used in the past in any maMer which violates any Pennsylvania or Federal environmental law or regulation; and (e) there are no underground storage tanks located at the Premises., ' (j) Seller has (or will oblain) the right. pennits and licenses necessary from all third parties (including all applicable governmental agencies) 10 consllUct Seller's Improvement Obligations and has. or will have at closing. the financial resources to do so. (k) To the best of Seller's knowledge. other than as disclosed on the attached Exhibit E, there are no obligations ("Development Obligations") imposed by South Middleton Township or the Borough of Carlisle and presently existing. which might become obligations of the Buyer upon the purchase of the Premises. The above representations, warranties and covenants contained in this g10 shall survive the closing for a period of three (3) years (except that those contained in paragraph (j) shall survive until Seller's Improvement Obligations are completed) and Seller shall,indemnify Buyer from and hold Buyer hannless against any and all claims. demands, costs. losses or liabilities, damages and expenses, including legal fees. paid or incurred by Buyer as a result of Seller's representations or warranties being false, or Seller's failure to adequately and timely perfonn any covenant. US. Risk of Loss. Risk of loss to the Premises from casualty or from a taking of the whole or any part thereof by any public authority under the power or right of eminent domain (or by the threat thereoO shall be borne by Seller until the closing. Ir the Premises o~ any such pall thereof is damaged or destroyed as a result of such casualty or is so taken before this transaction closes. Seller shall immediately notify Buyer and Buyer may choose to: (a) proceed with the closing and be entitled to all insurance proceeds (the Purchase Price being reduced by the amount of any deductible under the insurance policy) or condemnation awards payable as a result of such casualty or taking; or (b) tenninate this Agreement. This Agreement shall automatically tenninate upon Buyer's delivery of a wrinen notice of tenninatioQ.olo Seller. If this Agreement is tenninated pursuant to clause (b) of this US. the parties. thereafter, shall be relieved of any further liability or obligation under this Agreement and the Deposit shall be returned to Buyer. If Buyer fails to make an election within 30 days after receipt of Seller's notice of such casually or taking, Buyer shall be deemed to have elected to close the transaction pursuant to clause (a) of this glS. U6. Closi",!. As used in this Agreement. references to "a closing". the "closing" or "day of closing" shall mean the closing of the purchase and sale contemplated by this Agreement. Unless Buyer in writing agrees otherwise. the closing shall occur not later than January 20. 1997. through the escrow established with the Escrow Agent or through the offices of the Title Company at such time as Buyer and Seller shall murually agree. Time is of the essence with respect to the closing because of Buyer's g1031 Iike.kind exchange requirements. OIl fOoIm ooa DlOllOl.lIIIAL.UTArC.'UIOIASI.AcrOl . II - At the elosing Buyer shall pay Seller the Purchase Price, adjusted In accordance with lhe tenns and condilions of this Agreement. and Seller shall transfer and convey to Buyer the Premises and the easement rights pursuant to the provisions of this Agreement. Each of the panies shall also execute and deliver to each other or to third panies such other documentation contemplated by this Agreement. Additionally. Seller shall deliver to Buyer at the closing such other documentation or consents reasonably requested by Buyer or the Title Company to evidence the transfer of the Premises to Buyer, ineluding such documentation that evidences Seller's authority 10 sell and transfer the Premises to Buyer. U 7. Possession. Seller shall be entitled to possession of the Premises until closing. and Buyer shall be entitled 10 possession of the Premises at and arter the closing. At all times after the execution of this Agreement. Seller shall provide Buyer free and full access to the Premises for the purposes of ~13, above. US. Broker's Commission. E3ch pany represents 10 the other that the purchase and sale contemplated by this Agreement has not been procured. instigated. or caused. nor have any services been rendered. by a broker. real estate salesperson. or other person who might. may or shall claim a commission or fee with respect to the same. except Commercial Industrial Realty Company and PeM Square Propenies. Inc., whose fees shall be paid by Seller a~ -closillg. Each pany agrees to indemnify the other for its OWnEts with respect to any claim made by any other broker as a result of any activity in conjunc ion with the purchase and sale contemplated hereunder. (~ ""'1. U9. Miscellaneous. (a) (bl Caotions. The captions. headings, and arrangements used in this Agreement are for convenience only and do not in any way affect. limit. simplify. or modify the lenns and provisions of this Agreement. Number and Gender of Words. Whenever the singular number is used. the same shall include the plural where appropriate. and words of any gender shall include each other gender where appropriate. (cl, Notices. All notices. demands. requests and other communications required or penniued hereunder shall be in writing. and shall be deemed to have been given from the time of receipt by the addressee if delivered in person or sent by telecopier (wilh hard 'copy sent by any of the other means provided for herein) or courier or as of the third business day after the same have been deposited in a regularly maintained receplacle for the Uniled Slates mail. registered or cenified. rerorn receipt requested. poslage prepaid. NOlices shall be directed [0 Buyer and Seller at the following addresses: DOIlOotlt ooa uu'n'.:IIIAL.Ul'Al't,!U1ClIASI.ACT If - 12. warranties and representations. if any. whether verbal or written. relatin~ 10 the Premises. and may be amended or supplemented only by an instrument in -writin~ executed by both parties hereto. - (0 Survival. The representations. warranties. covenants and agreements of the panics under this Agreement shall survive the closing and the consummation of the transfer of the Premises to Buyer for a period of three (3) years. except as otherwise provided for in this Agreement. (g) Panics Bound. This Agreement shall be binding upon, inure to the benefit of and be enforceable by and against Seller and Buyer, and their respective executors. administrators. heirs. successors and assigns. as applicable. Seller shall have the right to assign this Agreement only to an entity of which Seller has a controlling interest. provided that Seller provides Buyer with written notice of any such assignment. Buyer shall have the right to assign this Agreement to any entity of which the Shareholders of Buyer have a controlling interest, provided that Buyer provides Seller with wriuen notice of any assignment. Seller is a licensed real , estate person in the State of PeMSylvania. (h) Funher Acts. In addition to the acts and deeds recited herein and contemplated to be perfonned. executed. and delivered by Seller and Buyer. Seller and Buyer agree to perfonn. execute. and deliver or cause to be perfonned. executed, and delivered at the closing or after the closing any and all such further ,and reasonable acts, deeds. and assurances as may be necessary to consummate the transaction contemplated hereby in accordance with this AgreeMent. (i) Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable, said provision shall be fully severable: the Agreement shall be construed and enforced as if such illegal. invalid or unenforceable provision had never comprised a pan of the Agreement; and the remaining provisions of the Agreement shall remain in full force and effect and shall not be affected by the illegal. invalid or unenforceable provision or by its severance from the Agreement. Funhennore, in lieu of such illegal. invalid or unenforceable provision. there shall be added automatically as a part of this Agreement a provision as similar in tenns to such illegal. invalid. or unenforceable provisiqn. as may be possible which is and shall be legal. valid and enforceable. (j) Multiole CounternartS. This Agreement may be executed in a number of identical counterpartS. If so executed. each of such counterpartS is to be deemed an original for all purposes. and all such counterpartS shall. collectively. constitute one agreement. but. in making proof of this Agreement. it shall not be necessary to produce or account for more lhan one such counterpart. (Ic) Dutv to Coooerate. Seller shall fully cooperate with Buyer with regard 10 Buyer's effortS to fulfill the Buyer's division of lhe Premises into sCjl3rate parcels and obtaining the Access Route as contemplated by ~ 10 and to fulfill lhe oallO&&n ooa r..'OJlOt.lIICAI..UT4T1..U.CMASI....CT 01 - 14- "am: Chid Ai'lIo To: .I,. Ilq. H. Co" Do,,;hty Dlle: tVtCIII Tme: (11:,(1:12 'l;e20t2 llXlllU1T /I. 'I'HI-:I'llr.MISI-:S Lagal Dascriptlon Lands of William J. Lippert, elal. Carlisle Borough. Cumberland County. Pa. December 2, 1996 Prepared by Advantage Engineering Services. Inc. 1104 Fernwood Avenue. Camp Hill. PA 17011 AES Project #290 Beginning at a point located on the centerline of Governor Ritner Highway (S.R. 011). said point being referenC4d from the Intersecllon between the centerline of Govemor Ritner Highway and the centerline of Allen Road (S.R. 0':65) as follows: From said Intersection. along the centerline S.R. 011. North 71 degrees 11 minutes 47 seconds East a distance of 31.~ feet to the point of beginning. . Thence from said point of beginning, along the centerline of Governor Ritner Highway, North 71 degrees 11 minutes 47 seconds East a distance of 2526.02 feet to a point; thence across Governor Ritner Highway, and then along lands now or late of American National Red Cross (O.B. 0034. Pg. 917), lands Now or late of General Signal Corporation (D.B. R-22. Pg. 944), and also lands Now or late of Israel G. Royer et. ai, (D.B. J.22, Pg. 898) South 02 degrees 10 minutes 42 seconds East a distance of 2434.52 feet to a point; thence along lands Now or late of N. Bruce and S. H:, Pinto (0.6. M.29, Pg. 426) South 89 degrees 11 minutes 47 seconds West a distance of 2043.94 feet to a point; thence along lands Now or late of Pennsylvania Power and Ught (0.6. X.35. Pg. 512) North 01 degrees 23 minutes 13 seconds West a distance of 400.00 feet to a point; thence along the same South 88 degrees 36 minutes 47 seconds West a distance of 400.00 feet to a point: thence along the eastern Right-of.Way line of Allen Road (3D feet from centerline) North 01 degrees 23 minutes 13 seconds West a distance of 357.39 feet to a point; thence along lands Now or late of Financial Trust Corporation (P.S. 47. Pg. 159) North 71 degrees 11 minutes 47 seconds East a distance of 813.85 feet to an iron pin; thence along the same North 01 degrees 23 minutes 13 seconds West a distance of 600.00 feet to an iron pin; thence along the same South 71 degrees 11 minutes 47 seconds West a distance of 813.85 feet to a point: thence along the eastem Rlght-of.Way line of Allen Road. North 01 degrees 23 minutes 13 seconds West a distance of 300.00 feet to the' centerline of Governor Ritner Highway. the point of beginning. Said area described contains 99.665 acres as per a Topographic and Boundary SUNey Plan prepared by Advantage Engineering SeNices. Inc. dated December 2, 1996. subject to the following: 1. A 25 foot Legal Rlghto()f-Way along the south side of Governor Ritner Highway. 2. A Legal Right-of-Way to Carlisle Borough as recorded In Misc. Sic. 392. Pg. 967. 3. A 30 foot Deed of Easement to Carllslo Borough along the eastern Righto()f-Way of Allen Road as recorded In Misc. Sic. 427. Pg. 556. 4. A 70 foot wide Utility easement to Pennsylvania Power and Light running along the east and southern areas of the property as recorded In Misc. Sic. 178. Pg. 1040. 5. A Utility easement to Pennsylvania Power and Ught as recorded In Misc. Sk. 231. Pg. 53. complete and accurate estimate of the cost of completing construction of the Improvements in accordance with all applicable governmental requirements. 3. Disbursements from Escrow. (a) Upon receipt by Escrow Agent and Buyer after the Closing Date of (i) :In affidavit from a duly authorized officer of Seller, (ii) a written certificate duly executed by Seller's contractor. and a written certificate executed by Hartman and Associates, Inc. ("Buyer's Consultant") in each case affirming that final completion of the aforesaid Improvements or so much thereof as evidenced by invoices for construction of the same has been achieved and otherwise having form and content reasonably satisfactory to Buyer, (iii) upon Buyer verifying that such completion has been achieved (whi:h verification shall be made within IS days of Buyer's receipt of items (i) and (ii)) and Buyer's written approval of such work. Escrow Agent shall disburse the invoiced portion of the Escrow Fund to Seller: provided, however. that until all Improvements are fully completed as required herein. at least 10% of the Estimated Completion Amount shall, be retained by the Escrow Agent for the purposes of subparagraph 3(b) below. . (b) If Seller fails to satisfy the conditions under Section 3(a) hereof for disbursement of the Escrow Fund prior to expiration of the Completion Period (as hereinafter defined): (i) Buyer shall have the right, but not the obligation. to undertake all acts reasonably necessary or appropriate in order to achieve such final completion: (ii) Escrow Agent shall disburse to Buyer or to those parties as Buyer may direct. so much of the Escrow Fund as shall be necessary to reimburse Buyer for its costs and expenses which are incurred in achieving such final completion and which are evidenced by copies of invoices for such costs and expenses: and (iii) upon Escrow Agent's receipt of written notice from Buyer that final completion of construction of the Improvel1lel1ls has been achieved. Escrow Agent shall disburse to Seller the Escrow Fund balance. if any. remaining after such reimbursement of Buyer. 4. Seller's Obli2ation To Achieve Final Comoletion. Seller shall achieve final completion (or shall cause its contractor to achieve final completion) of the Improvements in accordance with the requirements of applicable governmental authorities on or before October IS. 1997 and Seller's obligation and liability to Buyer in this regard shall not be limited. to any extent whatsoever, by the amount or availability of the Escrow Fund. 5. Provisions Re2ardin2' Escrow A2ent. Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. By virtUe of this Agreement, Escrow Agent shall not be liable for loss or damage resulting from: (a) any good faith act or forbearance of Escrow Agent; (b) any default, error. action. or omission of any party other than Escrow Agent: (c) any defect in any construction work: (d) the expiration of any time limit or other delay which is not solely caused by the failure of Escrow Agent to proceed in its ordinary course of business. and in no event where such time limit is not disclosed in writing to Escrow Agent: (e) the lack of authenticity of any writing delivered to Escrow Agent or of any signature to sign such writing: (I) Escrow Agent'S compliance with all allachments. writs. orders. judgments. or other legal process issued by any COUrt: and (g) Escrow Agent's <Issertion or failure to assert any cause of action or defense in any judicial or administrative proceeding insofar as the other partics ...~..Oftl'.t.,,,,,I!'o':tlC.,,UhftNIC..aI...cl''' '. 159 1 person or entity request that that happen? 2 MR. KUTZ: Do you want to speak with me off the 3 record? Note it. 4 (Mr. Aiello and Mr. Kutz confer.) 5 MR. KUTZ: Let me instruct you to the extent you 6 have any recollection of it, tell counsel. 7 THE WITNESS: Okay. On the morning of March B 27th-- 9 MR. KUTZ: Saving therefrom communications you 10 had with Attorney Gilroy. 11 THE WITNESS: Uh-hum. On the morning of March 12 27th I was under an understanding that a suit was to be 13 filed. I was in the courthouse with my counsel. There was 14 Scott Wyland, counsel for Exel Logistics, and Ivo otto, 15 counsel for the Lippert family, were all together in a room 16 on the fourth floor I believe up near the Judge'S chambers 17 waiting for CIR and its counsel to file some suit that they 18 did file. 19 And discussions were held there, and I know that 20 Ivo otto said that they were willing to sell directly to 21 Exel Logistics, and Exel Logistics wanted to buy this 22 property whether I was involved or not and would purchase 23 it directly from the Lippert family, and Ivo Otto said 24 several times screw these folks at CIR, let's go settle, and 25 that's what I heard those folks say, and that's what was 7 ; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Cumberland Equities? A Uh-hum. Q How are you familiar with that? MR. KUTZ: Wait a minute. When you say uhwhum, you want to be real clear on this record. THE WITNESS: Yes, yes, I do. I know what Cumberland Equities is. BY MR. DeANGELO: Q How are you familiar with Cumberland Equities? A Well, I know Dave Aiello owns it. Q Dave Aiello owns -- A Owns Cumberland Equities. Q Cumberland Equities. When you say owns, is he the shareholder of Cumberland Equities? A I guess that's what I mean. Q Have you ever had any involvement with the business Cumberland Equities conducts? A No. Q Has Cumberland Equities ever paid you any money? A me back. Q When did they pay you back? A Last week. Q How much money was that? I lent Cumberland Equities money, and they paid L IE":':'UKtNT CIUJl.CEI SnT'...!:KlNT 1':'.\':'IUtU:' PACE J .. , - '.\10 nON '.\10 nON , IOIUl0VU,'S .l~"'. , 'UNDI At ..~J{DS AT ..-. ~ 104. I .. . . .... . , , Ill. too. InKS RZQUIRZD BY UNDER. TO at 'AID IN MYAHC!: '01 -T--;;;-;-. .. I d. , . a...... !Ii~..- . . '05. . . - .,;n;- . .. . . . - - '''a... . . r1.r .an!:h . - .... . - ,ft" 1001. :;ofttha , S pel' lIloftth 00 - . ., ...-..-; . . .. ... ;,-;;;--;;;. O. IU . e .. - . , . ,; . , . -;c u y 0 .. , , - , .. a"'''ye on"" .. --; I .. y . I....... "" . .. y . ~ '.1(00 00 00 1,.'-'-'- . . llU. Eacrow CharIJe. to 1.-1 Ab.tnet 50.00 ..... . . . . . . 1',1'0'_. a . ..d "."l"l .MoPt a .. . , - ", - at.. "'a.JC/<l:t&: I Dn 000 00 !"'a~aaa. I 00 , , 1205. Letter of Credit. r.. ConStatn lar"~ I I 00 -"0"1 . I"" 0 .. o. . c .. , . 0 0 0 1305. s.. bh1bit. of Addl tiond Dlabunellllntl I ",010.00 1400. ':"OTJ.!. sC'tUH!::rr CUJlCES tEnt.lr On Llnll 10J, Sect.lon J and 502, Sec,:lon Jtl I lS,On.SO I in,SlO.GO I, aivn~ni pAve 1 of thia ItataQlftt, the ai9natorle, ac~ncvledql Clceipt of a coapllted cop, of pal. 2 of thi, 2 pave at&ta.ant. Ill/LIPPEAT.SL) TRII IS CER.Tlrl1:0 TO aE A ':i\UE A..'lD COiUlECT COPY. L , Ajl Abatnet Sett.le.ant A'Iant fl..'d:tj '" I '7J I N.. .,.. l.:j (0 ~ "l ~ $ . . '" '<'l " :I) ~ :I- ~ ~ '":'\'I '')' Q) , rr ~ IJ ,C; (j~ . I' , .I~ ~ ,ljj: 2)' l1.:' , -" 1:..." I IL c: J- ~ o. c;: (..~ ... ! -j ):~ ....~ ".-' I ~ I. -) ;:-j :.'"0 , , '~ -' :;!j "- " ,J, <.J SHKUIVV'S RKTURN - REGUI~U CM;~: NO: t'J9"-f4:.Jf4tH P ~r C0I1I10NW~:^I.TII IW P~:NNSYI.V ANt A 1 COUNTY Ill' CIJI1HI':R1.ANO IlIUI.l,_-LJ:IJ,r;;!I^~:I.&, Assac tNC VS. ClJJt~Y;R1,.A!lJL.f.mJJ:ru:s., INC 11 [CIlM:I._~AJIR [CK , Sheriff or D~puty Shertff of being duly sworn according EQUITY was served CUI1E1EIlI.AND County, Pennsylvania, who to law, says, the within COI1PI.AINT - upon _ C.I)tLIl!:;~J.AND _~;HIJUH:l?..INC .. defendant, at 1315100 HOURS, on the ~ day of June t ':J':J". at..'1JD!JtlD...ljJ,l.!. ROAD.._, __" _... .. CAI1P IIJ!.L,_PlLl7011 . C..1111.!!,EI!LANll County, Pcmnsytvantu, by handtng to DAVrOAn:I.l,p"..lJ..W.NER__....".._____ o true onr.! attested r:opy of the COt!I'LA tNT :- ~:,QU,:J:TY ,..,....-..,'----~ ond ot the som~ ttm~ dtr~attng Hi~ ottentton to th~ cont~nts thereof. the Shl,ri..ff'G Coats: DOI~k17 t tng " . .,erV1.ae Affidavit Surcharge :;0 oOllw~r?"~~ R. I homas K.l1ne, Sher111 tH.00 ':J.3f4 .00 2.00 Ei7.9. ~!D JOHNSON DUFFlE 05/12/1997 by Sworn onr.! subscribed to before me th ts O_~. doy of L;tJ- 1':J .fi:+- A. D. ~ ' u.., fJ, ')l'I..Ih..... !'!.p-17 lfrothonotary [F I.lI '- -~~'" r..; Fe; .,. r~ ~~ ,- lJ'!;,? 'I" .., ". .. 0<, J_ __. .~-. ~;:~: ". f"..,;:j (<; '- uF;: r.::l ;_~ ;~t? (-; tr, ~;--: ii!,; ;;r U'!'-I r:.: =:..J ,... ~. 's.;<- LJ, ,- --, c.; 0' G . . Complainl as "Exhibit A", which is the Real Estate Purchase Agreement, dated December 10, 1996 (the "Purchase Agreemenl"), by and between David Aiello ("Aiello") and Exel Logistics, Inc. ("Exel"). 4. Review of the Purchase Agreement, upon which Plaintiff relies, reveals that such Purchase Agreement required Mr. Aiello 10 purchase and convey Ihe property in question 10 Exel and required thai closing occur no later than January 20, 1997 or, at the option of Exel, for a period of sixly (60) days Ihereafter. S. Section 13 of the Purchase Agreemenl indicales that if the parties do not "close" within the lime parameters set forth in the Purchase Agreement, the Purchase Agreement shall be null and void. 6. Plainliff failed to allege Ihat Mr. Aiello ever acquired the property. 7. Plaintiff failed to allege that Exel purchased Ihe property either from Mr. Aiello or Cumberland Equities. 8. Plaintiff failed 10 allege Ihal closing occurred within Ihe time parameters set forth in the Purchase Agreement. 9. When the parties failed to "close" on March 20, 1997, the Purchase Agreement, pursuant 10 ils explicit provisions, became null and void and, thereafter, Mr. Aiello had no "interesl" to assign. 10. Plaintiff has failed 10 plead any facts to establish that an "inleresl" in "property" was conveyed 10 Cumberland Equities by Mr. Aiello. -2- 11. Plaintiff has failed to allege any fact to establish Ihat any interest convcyed via thc assignmenl was of any value. 12. Plaintiff has failed 10 plead any faclS 10 establish thai any monies which may havc been received by Cumberland Equities were received pursuanllo Ihe Purchase Agreement; nowhere in the Purchase Agreement is a referencc made as 10 a payment of money in the sum of approximately $664,000. 13. Plaintiff has failed to plead any facls to establish Ihat $664,490 was transferred to Cumberland l:quities by Mr. Aiello. 14. Plainliff has failed to plead any facls to establish that a transfer by Mr, Aiello of his "interest", if any, in the Purchase Agreement is a "transfer" of "property" within the meaning of the Act. IS. Plaintiff has failed to plead any facts 10 establish Ihat a fraudulent transfcr occurred within the meaning of Ihe Act. 16. The Complainl is wholly conclusory as to the alleged fraud. 17. The Complainl fails to state a cause of aClion for which relief may be granted. WHEREFORE, Defendant, Cumberland Equilies, Inc., respectfully requeslS this Court to dismiss Plainlifrs Complaint, with prejudice, for failing 10 state a legally sufficient cause of action for which relief may be granted. .J. 25. Because Brill alleges Ihat Mr, Aiello transferred an "interest" and "proceeds therefrom" to Cumberland Equities 10 avoid paying creditors, Plaintifrs Complaint has trappings of fraudulent transfer under Ihe Act 26, Plaintiff has filed Ihe presenl action in equity. 27. Plaintiff, however, seeks judgment against Cumberland Equities in the amount of $154,004.49, plus interest. 28. Monetary damages are traditionally considered Ihe province of the courts at law. 29. Section 5107 of the Act details the remedies of creditors in an action for relief againsl a fraudulent transfer. 30. The remedies of credilors identified in 12 Pa.C.S.A. fi5l07 do not include the possibilily of a money judgment against Ihe alleged transferee. 31. Because Plaintiff makes efforts to state a cause of action, albeil unsuccessfully, for fraudulent lransfer, bUl seeks damages which are not appropriate 10 the cause of action plead, it is impossible for Cumberland Equities to accurately determine the specific claims against which it must defend. 32. Additionally, as set forth in Paragraphs 21 and 22 hereof, Plainliff fails 10 identify the purported "interest" conveyed and the "proceeds" received therefrom pursuant 10 the Purchase Agreement 33. The conveyance of this purported "interest", and the alleged receipt of "proceeds" therefrom, appear 10 be the crux of Ihe Plaintifrs Complaint. .5- PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted In duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next: o Pre-Trial Argument Court ~ Argument Court ..............................--......................-----.....................--,.............. CAPTION OF CASE (entire caption must be stated in full) J. MICHAEL BRILL & ASSOCIATES, INC., (') '" 0 c: ...... '" :;- l"'~ ,: r.... =7j I": ~, : ,- {= j-,:rJ ~:-.: ;~. . I r- (.;: ~' "'7}ln -..: lJO ;.:~: :: -'6 'T1 'i!:!:J '1- , , :-;C) '-"C': r;~' ;"')rn :.--.: ':-:l ~J 'J ~l -, en -< (plaintiff) vs. CUMBERLAND EQUITIES, INC. (Defendant) No. 97-3018 Equity I. State matter to be argued (i.e., Plaintiffs motion for new trial, Defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs Complaint 2. Identify counsel who will argue case: a) For Plaintiff: Address: David J. Lanza, Esquire 301 Market St., P.O. Box 109, Lemoyne, PA 17043-0109 b) For Defendant: Address: James J. Kutz, Esquire 213 Market St., P.O. Box 1248, Harrisburg, PA 1710S-1248 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Call of Argument List Date: August 13, 1997 UL Attorney for Plaintiff Dated: July 2, 1997 6. The overwhelming majority of the Information which Defendant seaks is readily available through the transcripts and exhibits of depositions (1)in which Defendant's owner, principal officer and counsel participated (2) which have been filed of record (in a related case) in the Cumberland County Courthouse and (3) which Defendant has attempted to strike from the record for unknown reasons. 7. Defendant's Notice of Deposition requires the production of numerous documents. including documents related to communication between Plaintiff and an entity known as Commercial Industrial Realty Corporation (which Is pursuing a separate action against Defendant and other parties). 8. The Information which Defendant seeks has already been provided to Defendant's counsel and has been filed of record. 9. The circumstances by which Plaintiff obtained information pursuant to a subpoena in a separate action bear no relevance to the issues of this case and have been fully disclosed to Defendant's counsel. 10. Defendant's counsel has already stated on the record that Defendant (and/or Defendant's related entities) have no claim against Plaintiff with regard to the circumstances surrounding Plaintiff's acquisition of information and documents from Commercial Industrial Realty Corporation. 11. Defendant's Notice of Deposition seeks information protected by the attorney-client privilege. WHEREFORE, Plaintiff seeks a Protective Order prohibiting Defendant from taking the deposition of Plaintiff's designee until such time as Defendant's demurrer is resolved. Respectfully submitted, ,e.~03 JOHNSON, DUFFIE, STEWART & WEIDNER BY: /3 4A DaVi~~';- Attorney 1.0. #55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043,0109 (717) 761,4540 Attorneys for Plaintiff 2. Every basis. fact, and knowledge of source of information pertaining to the allegations set forth in Paragraph 7 of the Complainl that on or about March 27, 1997, David Aiello transferred his interesl in a certain agreement to Cumberland Equities, Inc. 3, Every basis, fact, and knowledge of source of information pertaining to the allegations set forth in Paragraph 8 of the Complaint that David Aiello purportedly transferred his interest in a certain agreement and the proceeds therefrom for the purpose of shielding assets from credilors. 4. Every basis. fact, and knowledge of source of information pertaining to the allegations set forth in Paragraph 9 of the Complaint that David Aiello transferred his interest in a certain agreement to Cumberland Equities, Inc. for no consideration or in sufficient consideration. S. Every basis, fact, and knowledge of source of information pertaining to the allegations set forth in Paragraph 10 of the Complaint that David Aiello transferred his interest in a certain agreemenlto Cumberland Equities, Inc. on March 27, 1997 with full knowledge that at least one creditor was filing suit against David Aiello for the purpose of seeking payment. 6. Every basis, fact, and knowledge of source of information pertaining to the allegations set forth in Paragraph 11 of the Complaint that David Aiello transferred his own interest in a certain agreement 10 Cumberland Equities, Inc. for the purpose of shielding proceeds from settlement of a transaction occurring on March 27, 1997. 7. Every basis, facl, and knowledge of source of information pertaining to the allegations set forth in Paragraph 12 of the Complaint that Cumberland Equities, Inc. is owned either by David Aiello or David Aeillo's father-in-law, David Lee Manley. 8. Every basis, fact. and knowledge of source of information pertaining to the allegations set forth in Paragraph 13 of the Complaint that David Aiello's father-in-law, David Lee Manley, testified on Apri111, 1997 that David Aiello is the owner of Cumberland Equities, Inc. 9. Every basis, fact, and knowledge of source of information pertaining to the allegations set forth in Paragraph 14 of the Complaint that Cumberland Equities, Inc. received proceeds from a seltlement occurring on March 27, 1997 in an amount in excess of the Corporation's judgment. -2- 10. Every basis, fact, and knowledge of source of information pertaining to the allegations set forth in Paragraph 15 of the Complainlthal Cumberland Equities, Inc. received proceeds in excess of $640,000. 11. Every basis, fact, and knowledge of source of information pertaining 10 the allegations set forth in Paragraph 16 of the Complaint that Cumberland Equities, Inc. may receive additional proceeds pursuant to the terms of an escrow agreemenl in an amount equalling $500,000. 12. Every basis, fact, and knowledge of source of information pertaining to the allegations set forth in Paragraph 17 of the Complaint that David Aiello transferred his interest in an agreement and the proceeds therefrom to Cumberland Equities, Inc. with the intent to hinder and/or defraud the Corporation. 13. Every basis, fact, and knowledge of source of information pertaining to the allegations set forth in Paragraph 18 of the Complaint that David Aiello did nol receive reasonably equivalent value in exchange for a purported transfer on March 27, 1997. 14. Every basis, fact, and knowledge of source of information pertaining 10 the allegations set forth in Paragraph 19 of the Complainlthat David Aiello's remaining assets were unreasonably small in relation to the value of the asset (and the proceeds therefrom) transferred. 15. Every basis, fact and knowledge of source of information pertaining to the allegations set forth in Paragraph 20 of the Complaint that David Aiello intended to incur and/or believed and reasonably should have believed that David Aiello would incur and continue to incur debts beyond David Aiello's abilitY to pay as such debt become due, including David Aiello's debt to the Plaintiff. 16. Every basis, facl and knowledge of source of information pertaining to the allegations set forth in Paragraph 21 of the Complaint that the March 27, 1997 transfer to Cumberland Equities, Inc. was made to an insider, and that Cumberland Equities, Inc. is owned by either David Aiello and/or David Aiello's father-in-law. 17. Every basis, facl and knowledge of source of information pertaining to the allegations set forth in Paragraph 22 of the Complaint that David AeiIlo retained possession and control of the shares of slock of Cumberland Equities, .3- EXHmIT A Definitions The term "document" when used herein shall mean all wrillen, typed, printed, recorded or graphic matter of every type and description, however and by whomever prepared, produced, reproduced, disseminated or made, in any form, now or formerly in the possession. cuslody or control of the party to whom this request is addressed, it officers, agent, employees and attorneys, or any of them, including, but not limited to, lellers, correspondence, lelegrams, memoranda, records, minutes of all types of meetings, contracts, subcontracts, agreements, intra and inler-office communications, purchase orders, requisitions, plans, studies, summaries, analysis. results of investigations, reviews, bulletins, proposals. estimates, appraisals, recommendations, critiques, trip reports, engineering calculations, bills of materials. drawing, skelches, blue prints, charts, indices, notices, diaries. books, desk calendars, appointment books, messages, instructions, work assignments, notes. nOlebooks, tape recordings, partial or complele reports of lelephone conversations, photographs. slides, public stalements. newspaper or other media releases, public and governmental filings, opinions and any other writings, drawings or recordings. If any other document was, but is no longer in the possession of the party to whom this request is addressed or subject to such party's control, identify the document. When used herein, the term "relate to", "relating to" or "in relation 10" shall mean constituting, reflecting, representing, supporting, contradicting, referring 10. stating, describing, recording, noting, embodying, containing, mentioning, studying, analyzing, discussing, evaluating, or relevant to. As indicated, the term necessarily includes information which is in opposition to as well as in support of the position(s) and claim(s) of the party to whom the request is addressed. Documenls requested: 1. All documenls which support Q! ~ in any manner 10 each and every 10pic of inquiry specifically detailed in the Notice of Oral Deposition. including, but not limited to: all documents, correspondence and communications provided to J. Michael Brill & Associates, Inc., including ils agents, representatives and attorneys, by Commercial Industrial Realty Company, its agents, representatives and attorneys; 2. All documenls which reflect, depict and memorialize communicalions between J. Michael Brill & Associates, Inc., ils agents, representatives and attorneys, and Commercial Industrial Realty Company, ils agenls, representatives and attorneys. including, but notlimiled to, all documentation, correspondence. subpoenas, time-entries and phone logs. '- \1) ,. l' r~~ <'.' ?'. i~' .. " I - lU~'~ ; , ", : r'. t. ' . ,;... . ;:.-', j:~ .: ,. n'. .:!) , ( ('"'0(' IJ.I;L \~.j _..JU' -. U;. ::J !'I~ I!: .., ~. ~ r- ::.~ C1' u ':.~, ., ~ c:' ~ 0 .. UJ% ..:: :")....- o.,~ <.?6 ~- If:!.. ".;i.. v:!.: 2;c, "- ~.::l;:j / ~ n_ -S'" ~c. N ., ... ,.. [LII' L~ ~:~ :1: - 1:.ltu I- - [<!C'_ "'" u_ -~ CJ r- ::.l .,., U