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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
RICHARD D. POOLE, INC.,
Plaintiff
vs.
No.
9 r. .,LO (. f:I~,:.( Ti-<-
SITE DEVELOPMENT, INC. and
PENNSYLVANIA NATIONAL BANK
AND TRUST COMPANY,
Defendants
COMPLAINT
1, The Plaintiff, Richard D. Poole, Inc., is a
Pennsylvania corporation, with its principal office and place
of business located at 2401 Pleasant Valley Road, York, PA
17402,
2. Defendant, Si te Development, Inc., is a New
Jersey corporation, with its principal office and place of
business located at 17000 Horizon Way, Suite 200, Mt. Laurel,
New Jersey 08054. Site Development, Inc.'s registered office
in Pennsylvania is c/o Frey, Petrakis, Deeb & Blum, 1601 Market
Street, 6th Floor, Philadelphia, PA
19103.
3. Defendant, Pennsylvania National Bank and Trust
Company, is a national banking institution, with its principal
office and place of business located at One Keystone Plaza,
North Front and Walnut Streets, P. 0, Box 2053, Harrisburg,
HARMON'" DAVIES, P.C.
ATTORNEVS.AT.LAW
2J06COLUMHI^ AVENUE
LANCASTER. PA 1760)
Pennsylvania 17105-2053,
4. In October, 1996, representatives of Plaintiff
made
proposals to and negotiated with representatives of
Defendant Site Development, Inc, for the construction of a CVS
Pharmacy to be located at South West Street, Carlisle,
Pennsylvania,
5. Subsequently, Plaintiff entered into a contract
dated October 25, 1996 for the construction of the CVS Pharmacy
with Carlisle Equities, LLC, Plaintiff believes, and therefore
avers, that officers and shareholders of Defendant Site
Development, Inc. are members of Carlisle Equities, LLC. A
copy of the Construction Agreement is attached hereto as
Exhibit "A", Thereafter, Carlisle Equities, LLC assigned the
Construction Contract to Defendant, Pennsylvania National Bank
and Trust Company, A copy of this Assignment of Construction
Contract is attached herr.~.to as Exhibit "B". Although Exhibit
"B" does not contain the signatures of representatives of
Carlisle Equities, LLC or Defendant, Pennsylvania National Bank
and Trust Company, plaintiff believes and therefore avers that
a fully executed copy of the Assignment of Construction
Contract is in the possession of Defendant, Pennsylvania
National Bank and Trust Company.
6. Between December, 1996 and June, 1997, Plaintiff
performed its obligations under the Construction Contract, The
CVS Pharmacy opened for business on or about July 21, 1997 and
all punchlist items were completed by June 2, 1997, 1997.
COUNT I
Richard D. Poole. Inc. v. Site Development. Inc,
"ARMON'" DAVIES, P.C.
A"ORNEYS."'T.LAW
2lO6COLUMBIA "VENUE
LANCASTER. P^ IlbO)
7 .
The averments of Paragraph 1 through 6 are
incorporated herein as though fully set forth.
13. The Assignment of Construction Contract
referenced above in Paragraph --L and attached hereto as
Exhibit "B" contains the following language:
"2. Assignor and Assignee agree, as a condition of
acceptance by the general contractor, that all funds
disbursed by the Assignee to the Assignor will be by
joint check to the Assignor and the general
contractor."
14, Despite the clear language in the paragraph
quoted above, Defendant Pennsylvania National Bank and Trust
Company, did not disburse funds by j oint check to Carlisle
Equities, LLC and Richard D. Poole, Inc.
15. Plaintiff believes and therefore avers that
Defendant Pennsylvania National Bank and Trust Company has
disbursed more funds to Carlisle Equities, LLC than have been
transmitted to Plaintiff,
16. Defendant Pennsylvania National Bank and Trust
Company's failure to abide by the terms set forth in Paragraph
1d above, has resulted in a lack of payment to Plaintiff for
work it has performed.
17, plaintiff was clearly an intended beneficiary of
the Assignment of Construction Contract,
and Defendant
Pennsylvania National Bank and Trust Company's failure to
adhere to the terms of that Contract have caused Plaintiff to
suffer damages in the amount of $75,614.48, the balance it is
owed on the Construction Agreement,
HARMON &. DAVIES. P.C.
ATTORNEVS.AT.LAW
2306 COLUMBIA AVENUE
LANCASTER. r.\ 1760)
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ED 0:47
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HArmON AND OM I ES I'C
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I'()X NO, 11 ( 201 bl3G
I', U2
VERIFICATION
I, ROBERT PLUMER I , hereby verify that I am the
President of Richard D. Poole, Inc" that I am authorized to
make this Verification, and that the statements contained in
the herein Complaint are true and correct to the best #of my
knowledge, information, and belief,
I understand that false
statements therein are made subject to the penalties of 18 Pa.
C,S,A. ~ 4904 relating to unsworn falsification to authorities,
Dated:~,lotjJf8 ~p~ ,,, PI,.,
L, .tf~~r.t, PL~;~I
President
Richard D, Poole, Inc.
rv!. doc\poole\plumerl.ver ",
os 4. D^VIES, P.C.
OI\NEYS'^T.LAW
nLUMel" ^Vf,NU2
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fi Standard Form of Agreement Between Owner and
Contractor where the basis of payment is a Stipulated Sum
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AlA Document A101 - Electronic Format
TInS DOCUMENT lIAS IMPORTANT LEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS
COMPLETION OR MODIFICATION. AUTHENTICATION OF THIS ELECTRONICALLY DRAflED AlA DOCUMENT MAY DE MADE DY USING AlA
DOCUMENTD401.
The 1987 Edition of AlA Document AlDI. General Conditions oflhl: Contract (or Construction ,is adoptcd In this document by reference. 00 nol use wllh other
general conditions unless this document is modified. This document hIlS been approved and endorsed by The Associated GtncraJ Contractors of America.
Copyright 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1962, 1967, 1974, 1977, cop)T18htl987 the American InSlllule or Architects, 1735 Ncw York Menue, N.W.,
Washlng1on, D.C., 20006.S292. Reproduction oflhc malerial herein or substantial quotation or Its provisions wilbout "'TineR permission of the AlA violales the
copyrlghllaws of the United Stalu IlIld will be subject 10 legal prosecution.
AGREEMENT
made as of the 25th day of October in the year of Nineteen Hundred and Ninety Six
BETWEEN the Owner:
(Naml and addrl")
Carlisle Equities LLC
17000 Horizon Way, Suite 200
Mt. Laurel, New Jersey 08054
and the Contractor:
(Namt and add"ss)
Richard D. Poole, Inc.
with offices at 2401 Pleasant Valley Road
York, Pennsylvania 17402
The Project is:
(Namt and locatIon)
CVS Pharmacy
South West Street
Carlisle, Pennsylvania
The Architect is:
(Namt and address)
CVS Pharmacies
I
II
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The Owner and Contractor agree as set fonh below.
Pennsylvania
To complele the general construction of a new CYS Pharmacy in Carlisle,
AlA DOCUMENT AIOI . OWNER,CONTRACTOR AGREEMEloo-r. TWELFTH EDITION' AlA' COPYRIGHT 1987 . THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW VORl( AVENUE, N.W., W ASHINOTOS, D.C., 20006.5292. WAR.-:ING; Unlicensed pholocop)'lng viol'lcs U.S. eopyrl8hll,ws and
Is subject to legal prosecution. This document was electronically produced with pcnnission arthc AlA and can be reproduced without violation until the date of
expiration as noted below. '
Electronic Fonnal AIOI-1987
User Document: CVS.DOC - 10/25/1996. AlA License Number 103948, which expires on 9/1/1997 - Page #1 . '.
EXHIBIT "A" 1..,.
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ARTICLE 1
THE CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions),
Drawings, Specilicallons, addenda issued prior 10 execution ot this Agreement, other documents listed In this Agreement and
Modifications issued aller execution of this Agreement; these fonn the Contract, and are as fully a part of the Contract as Ifauached
to this Agreement or repealed herein. The Contract represents the entire and inlegrated agreement between the parties hereto and
supersedes prior negotiations, representations or agreements, either wrluen or oral. An enumeration of. the Contract Documents,
other than Modilications, appears in Article 9.
ARTICLE 2
THE WORK OF THIS CONTRACT
The Contractor shall execute the entire Work described in the Contract Documents, except to the extent specilically indicJted in the
Contracl Documents to be the responsibility of others, or as follows:
ARTICLE 3
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 1he date of commencement is the date from which the Contract Time of Paragraph 3.2 is measured, and shall be the dale of
this Agreement, as Iirst wriuen above, unless a different date is slaled below or provision is made for the date to be Iixed in a notice
to proceed issued by the Owner.
(lnJtrllht dalt ojcommtnctmtnt,ljil differsfrom the dare a/this Agrttmtnt. or. 1/ applicable, sial, that the date will be/utd In a nolfct 10 proceed.)
Within 10 (ten) days of receiving all required permits and a written notice to proceed.
Unless the dale of commencement is established by a notice to proceed issued by the Owner, the Contractor shall notify the Owner in
writing not less than live days before commencing the Work to permit the timely filing of mortgages, mechanic's liens and other
security interests.
3.2 The Contractor shall achieve Substantial Completion of the entire Work not later than
(bUtrl the calendar dOlt or nllmber of calendar days after the dOlt of commtnCtmtnl. Also Inst" any requirements/or earlier Subs/anllaJ Completion 0/ ctrlaln
portions of the Work. If not stated else1l'here In the Contract Documents.)
119 Calendar Days
, subject to adjustments of this Contract Time as provided in the Contract Documents.
(Insert provisions. Ifany.for liquidated damages relallng lofallur~ to complete on tlm~.)
ARTICLE 4
CONTRACT SUM
4.1 The Owner shall pay the Contractor in current funds for the Contractor's performance of the Contract the Contract Sum of
Six'Hundred Fifty Thousand Dollars ($ 650,000.00 " subject to additions and deductions as provided in the Contract Documents.
4.2 The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and are
hereby accepted by the Owner:
(Stat~ ,h~ numbers or olh~r Identljica,'on of accepted alternates. If decisions on other alternates are to be made by the Owner .subseqll~ntto the execution of thiJ
Agrument. auach a schedule 0/ such other alternot~s showing th~ amount/or tach and the date un,1! u'hich that amount iJ valid.)
See attached Exhibit "B"
4.3 Unit prices, if any, are as follows:
None
ARTICLE 5
AlA DOCUMENT AIDI . OWNER.cONTRACTOR AGREEMENT' TWELITR EDITION' AlA . COPYRIGHT 1987 . THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W.. WASHINGTON, D.C.. 20006.5292. WARNING; Unlicensed photocop)'ing violates U.S. eopyright laws and
is subject to legal proseculion. This documenl was electronically produced with permission of the AlA and can be rcptoduced without violation until the dale of
expiralion as noted below.
Electronic Format A101.1987
User Document: CVS.DOC - 10/25/1996. AlA License Number 103948, which expires on 9/1/1997 - Page #2
EXHIBIT "A"
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PROGRESS PAYMENTS
5,\ Based upon Applicntions for Pnymcnt submilted to the Architect by the Contrnctor nnd Certificntes for pnymentlssucd by
the Architect, the Owner shnll mnke progress pnymcnts on nccount of the Contrnct Sum to the Contmctor ns provided below nnd
elsewhere in the Contrnct Documents,
5,2 The period covered by ench Applicntion for Pnyment shnll be one cnlendnr month ending on the Inst dny of the month, or ns
follows:
5,3 Provided 1lII Applicntion for Payment Is received by the Architect not Inter thnn the Inst dny of n month, the Owner shall
mllke pnymentto the Contractor not Inter thnn the 15th dny of the following month. If nn Application for Pnyment is received by the
Architect after the applicntion date fixed above, payment shnll be made by the Owner not later thnn 15 dnys after the Architect
receives the Application for Payment,
5,4 Each Applicntion for Payment shall be based upon the Schedule of Values submilted by the Contractor in accordance with
the Contract Documents. The Schedule of Values shnll allocate the entire Contract Sum lllIlong the various portions of the Work and
be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless
objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment.
5.5 Applications for Payment shall indicate the percentage of completion ofench portion of the Work as of the end ofth. period
covered by the Application for Payment.
5.6 Subject to the provisions of the Contmct Documents, the amount of ench progress payment shnll be computed as follows:
5.6.1. Tllke that portion of the Contract Sum properly allocnble to completed Work as determined by multiplying the percentage
completion of ench portion of the Work by the shnre of the total Contract Sum nllocated to thnt portion of the Work in the Schedule
of Values, less retain age of ten percent ( 10 %) . Pending flnnl determinntion of cost to the Owner of changes in the Work, amounts
not in dispute may be included as provided in Subpilragraph 7.3.7 of the Generat Conditions even though the Contract Sum has not
yet been adjusted by Chnnge Order;
5.6.2 Add that portion of the Contract Sum properly allocnble to materinls and equipment delivered and suitably stored at the site
for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a
location agreed upon in writing), less retain age often percent ( 10 %);
5.6.3 Subtract the aggregate of previous payments made by the Owner; and
5,6.4 Subtract nmounts, if any, for which the Architect has withheld or nullified a Certificate for Payment ns provided in
Paragraph 9.5 of the Geneml Conditions.
5.7 The progress payment amount determined in accordance with Pilragraph 5.6 shall be further modified under the following
circumstances:
5.7:1 Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to one hundred percent ( 100
%) of the Contract Sum, less such amounts as the Architect shall determine for incomplete Work and unseltled claims; and
5.7,2 Add, if final completion of the Work is thereafter materially delayed through no fault of the Contractor, llIIY additional
amounts payable in accordance with Subparagraph 9.10.3 of the General Conditions.
5.8 Reduction or limitation of retain age, if any. shall be as follows:
rUIl Is intended. prior to Substantial Completion ollhe entire Work. to reduce or limit the retalnoge resullingfrom the percentages Inserted In SubparagraphJ 5.6./
and $.6.2 above, and IhIs Is not explained elsenhere In the COnlrOCI Documents, Inserl hert pro\';slorufor such fcduClion or limitation.)
In after 50% of the work is completed and the owner determines that the project is proceeding on a satisfactory basis,
relainage may be reduced to 5%
AlA DOCUMENT AIOI . OWNER.cONTRACTOR AGREEMENT' TWELFTH EDITION' AlA . COPYRlGHT t9g7 . THE AMERlCAN INSTITUTE OF
ARCHITECTS, 173S NEW YORK AVENUE. N.W., WASHINGTON. D.C., 20006,S292. WARNING; Unliccn5<d photocopying violates U.S. copyright taws and
15 subject 10 leg'" prosecution. This document was electronically produced with pcnnission of the AlA and can be reproduced without violation untillhc date of
cxpiralion as nDled below.
Electronic Format A101-J987
User Document: CVS.DOC -10/25/1996. AlA License Number 103948, which expires on 9/1/1997 - Page #3
EXHIBIT "A"
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ARTICLE 6
FINAL PAYMENT
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Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when (I)
the Contract has becn fully pcrfonned by the Contractor except for the Contractor's rcsponslbllity to correct nonconfonnlng Work as
provided In Subparagraph 12.2.2 of the General Conditions and to satisfy other requirements, Ifany. which necessarily survive final
payment; and (2) a final Cenificate for Payment has been Issued by the Architect; such final payment shall be made by the Owner not
more than 30 days aller the issuance of the Architcct's final Cenificate for Paymcnt, or as follows:
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Where reference Is made In this Agrecment to a provision of the General Conditions or another Contract Document, the
reference refers to that provision as amended or supplemented by other provisions of the Contract Documents.
7.2 Payments due and unpaid under the Contract shall bear intercst from the date payment is due at the rate slllted below, or In
the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located.
(/lUerl rate of In/lfes, agrted upon, 1/ any.)
(Usury loll'S and requirements under the Fed"al Truth In unding ..leI. similar slate ond local consumer crtdll tali's and other Tegu/alions ul ,he Owner:' DIU!
Contraclor'J principal places of busfnus, the locatlorl ojthe Project ond elsewhere mOJO affect ,he validity of this provision. Ltgal advice shoutd be obtained \l'/,h
f,spec/lo "tit lions or modlflcollons. and also regarding requirements such as' U'rWen dlsclosufes or 1I'olv"s.)
7.3 Other provisions:
All references to be architect menUoned in this contract is charged to read the owner. The architect is not part of the
execuUon of this contract.
ARTICLE 8
TERMINATION OR SUSPENSION
8.1 The Contract may be tenninated by the Owner or the Contractor as provided in Anicle 14 of the General Conditions.
8,2 The Work may be suspended by the Owner as provided in Anicle 14 of the General Conditions.
ARTICLE 9
ENUMERATION OF CONTRACT DOCUMENTS
9,1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows:
9.1.1 The Agreement is this executed Standard Fonn of Agreement Between Owner and Contractor, AlA Document AI 0 I, 1987
Edition.
9.1.2 The General Conditions are the General Conditions of the Contract for Construction, AlA Document A20 I, 1987 Edition.
9,1,3 The Supplementary and other Conditions of the Contract are those contained in the Project Manual dated , and are as
follows:
Document Titlc Pages
See attached Exhibit "A"
9.1.4 The Specifications are those contained In the Project Manual dated as in Subparagraph 9.1.3, and are as follows:
(Either /1st the Specifications here or refer 10 an txhibll altachtd 10 this Agreement.)
Document Title Pages
See attached Exhibit "A"
AlA DOCUMENT AIOI . OWNER.cONTRACTOR AGREEMENT' TWELFTH EDITION' AlA . COPYRlGHT 1987 . THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON. D.C.. 20006,5292. WARNING; Unlicensed photocopying violates U.S. copyrighllaws and
Is subject 10 legal prosecution. This document was clcclIonically produced with pennission a(lhe AlA IUld can be reproduced without violation until the dale of
expiration as noted below.
Electronic Fonnat A101.1987
User Document: CVS.DOC.. 10/25/1996. AlA license Number 103948, which expires on 9/1/1997 - Page #4
EXHIBIT "A"
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. 9.1:5 The Drawings are as follows, and'Jre dated unless a differenl date Is shown belo'v:"
(Ellhlr IIlI ,hI Drow;ngJ h", or rtftr to an uhlblt allach,d to ,h/1 Agrtlm,",)
Number Dale
See attached Exhibit "A"
9.1.6 The addenda, if any, are as follows:
Number
Pages
~ages
Dale
Portions of addenda relating 10 bidding requiremenls are not part of the Conlracl Documents unless Ihe bidding requirements are also
enumerated in Ihis Article 9,
9.1.7 Olher documents, if any, fonning part oflhe Contracl Documents are as follows:
fLlJt ht" any additional documtntl which art Inltndtd 10 form parI O/IM Contract Documents. The Gentral CondUlofU provld, thaI bidding requlrtmtnts slIch as
ocNtrtlJtmtn' or tnvltallon 10 hid, flU/ructions to Bidders, sompltfornu and thl Contractor's bid aft not parI ofth, Contract Documents un/IJJ ,numeralld In Ihl.!
Agreement. Thty should bl IIst,d h", only 1/ Inttndtd 10 be parI oj Iht Contract DOCUmtnls.) .
'I
This Agreemenl is enlered inlo as of the day and year flrsl written above and is executed in alleast three original copies of which one
is 10 be delivered 10 Ihe Conlraclor, one 10 Ihe Archilecl for use in Ihe administration of the Conlracl, and Ihe remainder 10 the Owner,
OWNER
~
(Signature)
CONTRACTOR
IS/~.d:~ ~
I1'rlnltdT?:h;:r J. P }"M<'~" Y('
(Pr/nted nomt and tltlt)
AtA DOCUMENT AIOI . OWNER.cONTRACTOR AGREEMENT' TWELrrn EDITION' AlA . COPYRIGHT 1987 . THE AMERICAN INST1T\JTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright I"" and
Is subject 10 leg:11 prosecution. This document was electronically produced with pcnnission or the AlA and can be reproduced wi1.hout violation until the date or
cxpirallon as noted below.
Eleclronlc Fonnal AIOI-1987
User Document: CVS.DOC - 10125/1996. AlA License Number 103948, which expires on 9/1/1997 - Page #5
EXHIBIT "A"
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October 6, 1996
GINUAL CONru.CrOAl/CONSTRUCTION MANAOUS
2401 Pleolonl Volley Rood
York, PA 17402
717757.7272
FAX 717 757.5811
II
Mr, Kenneth E. Lowther
SOl Site Development, lnc,
17000 Horizon Way, Suite 200
Mt. Laurel, NJ 06054
Reference:
CVS Pharmacy
Sarlisle and Swatara Township
Dear Mr. Lowther:
We are pleased to offer you our proposal to furnish all labor, material and equipment
necessary to complete the general construction, including sitework, of your two proposed
CVS Pharmacies, one in Carlisle, and one in Swatara Township. Pennsylvania.
Our proposal is based on the following:
. Drawings T1, SPC1, AI, A2, A4 thru A 15, F-1 P, Sl thru S4. P-1, M-1 and
E1 thru E4 dated July 31, 1996 as prepared by CVS Pharmacy
. Drawings I, 3 and 4 last revised May 16, 1996 as prepared by Reagis for Carlisle
. Drawing 2 last revised September 26, 1996 as prepared by Reagis for Carlisle
. Drawings 1 thru 4 last revised May 22, 1996 as prepared by Reagis for Swatara Township
. Attached clarifications
Proposed CVS Pharmacy - Carlisle, PA
BASE BID
All for the sum of....................................................................... $693,505,00
Proposed CVS Pharmacy. Swatara Township, PA
BASE BID
All for the sum of..................................................,.................... $645.664.00
Please note that we are basing o~r price of the Swatara Township store on the Carlisle
store. As directed, we have deleted the drive-thru window and associated concrete pad
from the Swatara store,
If you have any questions or require further information, please do not hesitate to contact
me.
Sincerely, .,,/' ~
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RI,CH~~~ij-D . . OLE, INC,
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Estimator/Project Manager
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EXHIBIT "A"
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EXHIBIT "B" - Page 1 :.,;.:.:';:
POOLE
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October 24, 1996
GINIRAL CONTRACTORS/CONSTRUCTION MANAGlRS
2401 Pleolonl Volley Rood
York. PA 17402
n7 757-7272
FAX m 757.5811
Mr, Kenneth E. Lowther
SOl Site Development, Inc,
17000 Horizon Way, Suite 200
Mt. Laurel, NJ 08054
RE: . CVS Pharmacy
Carlisle and Swatara Township
Dear Mr, Lowther:
As we discussed we are prepared to enter into a contract with SOl Site Development for
the construction of a CVS Pharmacy in Carlisle, PA based upon the following items.
. Original Base bid per proposal dated October 8, 1996....................$693,505.00
. Delete the back stop coating on the E,I.F,S, ...............,.......... Deduct $3,365,00
. Change the 2" E.I.F.S. to 1" at 1/A12...................................:...., Deduct $210.00
. Change the ceiling tile to Celotex in lieu of Armstrong..........,.... Deduct $250.00
. Change the roof deck from galvanized to prime
painted........................"..,......,....,...............................,.. ............ Deduct $975.00
. Use Romex wiring in lieu of conduit........................................ Deduct $5,200,00
. Use one 12.5 ton, one 10 ton and one 5 ton
gas/electric rooftop units in lieu of specified units. The
12.5 ton unit will serve the sales and security area in
lieu of a separate ductless unit for the security area,
Also change the insulated galvanized ductwork to
fiberglass ductboard.............................................................. Deduct $10,500,00
. Change the cast-in-place concrete foundation walls to
masonry walls ,.........,..,.,.....'......,...,........................................ Deduct $2,000.00
. Delete the loading dock and associated cast in place
steps .,..,.................................,................................................ Deduct $9,746.00
. Use y." drywall in lieu of 5/8" drywall on all interior
walls ..................................,...........,............................................ Deduct $500,00
. Use 25 gauge metal studs in lieu of 20 gauge studs on
all interior walls.,....................,...................................,................ Deduct $350.00
. Use 18 gauge metal studs in lieu of 16 gauge
. studs on all exterior walls ........................................................Total $659,459,00
. Additional value engineering to be determined ....................................$9,459.00
. Contract am ount ...,................................,...,............,......................$650,000.00
'fBe
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EXHIBIT "A"
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EXHIBIT "B" - Page~1'~
.
In order to find the additional value engine~ring, the following Items may be changed at
the discretion of Richard 0, Poole, Inc. at no additional increase or decrease in the
contract amount.
· Change the column covers to E,I.F.S.
· Change the roof structure at the hip roof from metal framing to wood framing.
· Change the rear wall of the building from brick to painted concrete masonry
units or split faced units.
· Change the pharmacy window to a manually operated window in lieu of an
electrically operated window.
:.
If you have any questions or require further information. please do not hesitate to contact
me.
Sincerely,
Richard D. Poo
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ASSIGNMENT OF CONSTRUCTION CONTRACT
THIS AGREEMENT. is made the day of , 19___, by
and between Carlisle Equities LLC , -eo~t-i~ of
----amr---------- --------, co'partners ("Assignor"),
and PENNSYLVANIA NATIONAL BANK AND TRUST COMPANY, a national
banking institution ("Assignee").
Assignee has agreed to make a construction loan to Assignor as
set forth in that certain COnstruction Loan Agreement dated
.
As security for the performance of all obligations of Assignor
under the Construction Loan Agreement and 'all documents and
instruments executed pursuant thereto, Assignor has agreed to
assign to Assignee all of Assignor'S rights, title, and interest in
and under a construction contract between Assignor and
Richard D. Poole, Inc. ("General Contractor") dated
, ("Construction COntract") a true and correct
copy of which is attached hereto as Exhibit A.
NOW THEREFORE, for valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be
legally bound, it is agreed:
1. . Assianment. Assignor transfers, conveys, and assigns to
Assignee any and all rights and claims that Assignor may have in,
under, or from the Construction Contract, such Assignment to become
effective immediately. Assignee may exercise its rights and elect
its remedies hereunder upon:
(a) the occurence of any Event of Defa~lt by
Assignor in its obligations under the Construction Loan
Agreement, Mortgage, Mortgage Notes, this Agreement,
the Affidavits, or any other document executed pursuant
to this transaction ("Loan Document"); or
(b) upon such occurrence of an Event of Default,
the Assignee may, but shall not be required to. deliver
written notice to the General COntractor, or its
successors and assigns stating that Assignee has
determined to replace Assignor as the "Owner" under the
.construction Contract (the date on which such notice is
delivered is hereinafter the "Effective Date"), but the
Effective Date shall have no event be prior in time to
such occurrence of default set forth in subparagraph
(a) .
Assignor shaJ.l not be relieved of any .obligation or
liabilit:f under the Construction Contract that arises either before
EXHIBIT "B"
. .
(" Assienor")
or after the Effi.'~::8 Date, thc Assignor shall indemnil2B hold Assignee harmless
from and against any such obligation or liability. Assignee shall not be obligatcd to
perform any actions or incur any obligations or liabilities whatsoever until such time
as Assignee undertakcs such obligations.~ursuant to this Agrecment.
2. Assignor and Assignee agree, as a condition of acceptance by the General
Contractor, that all funds disbursed by the Assignee to the Assignor will be by
joint chcck to the Assignor and the General Contractor. .
3, Representation and Covenants of Assienor. Assignor represents and warrants
to Assignee that there is no default now existing on the part of the Owner
under the Construction Contract, or, to the best of Assignor's knowledge, on
the part of General Contractor. Assignor shall continue to fully perform its
obligations under the Construction Contract prior to the Effective Date hereof.
4. Authorization. Assignor authorizes General Contractor to
Commence performance of all obligations under the Construction Contract for
the benefit of Assignee upon receipt by General Contractor of the written.
notice from Assignee described in Paragraph I heieof. General Contractor
shall be entitled to rely on such written from Assignee as conclusive proof of
Assignee's right to take such action, regardless of whether or not an Event of
Default under the Loan Documents has actually
occurred, or (b) a dispute exists between Assignor and Assignee regarding the
actual occurrence of such an Event of Default.
S. Further Assurances. Assignor hereby agrees to execute such other documents
and perform such other acts as may be necessary to enforce the rights assigned
hereunder.
6. Goveminl! Law. This Agreement shall be governed by and Construed in
accordance with the laws of the Commonwealth of Peru1sylvania.
IN WITNESS WHEREOF, THIS Assignment has been executed by
Assignor, intending to be legally bound hereby, as of the day and year first above
written.
ATTEST:
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RECEIPT FOR CERTIFIED MAIL
tlO IIlSURANC( COV[PJ,GE 'IIQVID[D
~o, 'OIlIHI(A/iATIOllALMAIL
(5.. Reverse)
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POOLE
. RICHARD D. POOLE. INC.
GINfUL CONTUCTOU/CONST~UCT/ON MANAGfU
2401 Pleosonl Valley Road
York. PA 17402
m 757.7272
FAX 717 757,5811
Cer1ll.ed Fee
SpeCial Delivery Fee
August 22, 1997
Reslllcled Delivery Fee
Mr, John Silvestri, President
Carlisle Equities, LLC
17000 Horizon Way, Suite 200
Mt. Laurel, NJ 08054
Aelutn Rece'Ol showing
10 whom and Oale Delivered
{,Io
RE: CVS #1646 Carlisle
RDP Project R6-171
OIl
co Relurn FlecelPI showIng 10 whom.
~ Dale. and Address 01 Oell\/ery
a
g TOTAL Poslage and Fees
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Dear Mr. Silvestri:
As you are undoubtedly aware, Carlisle Equities LLC ("Carlisle") owes Richard D.
Poole, Inc. a final payment of $252,763.95 for the above referenced project. The
project is complete, all punch list items complete, and we have been informed by
Pennsylvania National Bank that it has disbursed all project funds directly to Carlisle
on account of construction. In a conversation with your Controller, Tom
Cunningham, on August 19 he informed me that Site Development Inc. ("SDI") is
experiencing a (hopefully) temporary cash flow shortage and that payments would
have to be made in installments.
First, to my knowledge, although there may be common ownership, SDI and Carlisle
are separate legal entities. SDI has no legal right to convert bank funds directed to
Poole. Secondly, our contract and the financing for construction by Pennsylvania
National Bank are with Carlisle, not SDI. Thirdly, the "Assignment of Construction
Contract" presented by Pennsylvania National Bank and executed by the bank,
Carlisle and Poole specifically requires payments on account of construction to have
been made by joint check to Carlisle and Poole to ensure that all such funds were
received by Poole. This was an inducement on which Poole relied in agreeing to the
Assignment. To this extent both Carlisle and Pennsylvania National Bank have
breached this Agreement and you have converted funds intended for Poole.
EXHIBIT "e"
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In my conversation with Tom Cunningham, he indicated that it is your wish and
Intention to pay us promptly, It is hereby requested that you immediately provide a
specific commitment and schedule for making this final payment which Is now
overdue (and for which you have improperly received direct payment). Your
Immediate attention will be greatly appreciated.
V':Z YO"", ,/J
fi::tJ'd IK-<-
Richard D. Poole, P.E.
President
cc: Jay p, Gardner,
Vice President, Pennsylvania National Bank
D. B. Frank,
Project Manager, CVS Inc.
Pete Pecorgio,
Vice President Real Estate, CVS, Inc.
William Geib,
Director of Construction, CVS, Inc.
David Flores,
Harmon & Davies
EXHIBIT "e"
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:111 SITE
~Ill: DEVeLOPMeNT INC
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FAX NO.
609~d404
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DEVELOPMENlj INC.
Thomaa A. C"nnlngh8m. .J,.
VIce ......Il'.m - Finance
Via TelefllX (7171 7S7-SS11
'Wllli@ ~ O\\:f~'\IF
I~~: IIJG 27 ~7 W II
August 26, 1997
Mr. Richard D. Poole
Richard D, Poole, Inc.
2401 Pleasant Valley Road
York, PA 17402
Dear Rick:
,
.
!
Pursuant to our conversation on August 26, 1997 kd for the reasons discussed,
we will pay the bal:!llcc due for the Carlisle CVS on Sept~ber 26, 1997.
i
If you have any questions, please feel free to con~t me.
Sincerely,
SITE DEVELOPMENT, INe,
~
Thomas A. CWUlingbarn, Jr.
Vice President - Finance
TAC/cai
(B'Upool.doc)
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17000 Herizen Wsy, Suo... aoo. Me. Lsur-el. N.J 08054
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808/<:38,8<00 0 Fex 608/438.0<104
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COlHIDll\\T/\LTH OF PEIHl::';YLVMI1A:
COUilTY OF CIJ~llJEf\LAN(I
POOLE: RICHARD [, IlK
V5.
SITE DEVELOPMENT IlIe E:T AL
R. Thomas l\li.nl?
, Sher.1.fi, who being duly sworn according
ta law, says, that he made a diligent search and inqulry far thm vlthin
named defendor, t, tc' vi t: PENNSYL VANIA NATIONAL BAil"
AND TRUST COMPAIlY
but vas unable to locate
Thl;:>nl
in hiE bailiwicl~. He therefore
depuli=ed the sheriff of
DAUPHIN
Courlty. Pennsylvania.
to serve the within COMPLAINT
On February
2nd. 199B
this office WuS in receipt oi
the a'ttached return Ironl
DAUPHIN
Count.j', Pennsylvania.
Sheriff's Costs:
S(.I d,flSWCI z: /
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r ~~';"'--:-r-;#-:#; ri.~ / _4:"';'-'
q I homatJ 1\1.109, :..,no;:"r .l1.1.
DocJ.:~.?t:.ing
Out of County
SurchiJrcP?
Delupbin-Count,'
H.I, (10
<;1.00
:.00
25.50
S~4.~W HARMOIl & DAVIES
02/02/1'39B
SWarT} and subscribed to beiore
this _J-...( day of :j~
me
19-1Y_ A, D,
(-j ~C. I~~~__
~ IJJothuT~o~~ry ,
MArY Juno Snydor
lloall:Hlnlf; DuplJly
Office of the Sheriff
William T. Tul'l'
SI~Iit:flOf
Ralph G, McAlIlslor
ChlollJopulV
Michael W. Rlnohart
f\!:i!;islonl Chiol [)opuly
Ulluphin Counl~'
1-lnrri!itllJ~n, Ponnf,ylvnniu 1/~ 01
~ ~ on 2li&.20flO
J, R, LotNick
Sheriff
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
SHERIFF'S RETURN
No. 0132-T - - -98
OTHER COUNTY NO. 98-206
AND NOW: January 21, 1998 at 4:40pr.! served the within
CO~IPLAINT & NOTICE upon
PENNSYLVANIA NATIONAL BANK & TRUST CO.
JOHN CARROLL - MANAGER
the original CO~IPLAINT & NOTICE
him/her the contents thereof at
~5~re fe this 22NO d 0 JANUARY, 1998
\..J71p/7.JJ/U C!-. + (,If.~a)
PROTHONOTARY
LB/ET
by personally handing to
1 true attested copy(ies) of
and making known to
ONE KEYSTONE PLAZA
NORTH FRONT & WALNUT ST,
HARRISBURG, PA 17105-2053
So 1;JiU
l.'i';-' ~"~y, Pa.
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BY ~V_I.V__) . :} /'
'. //..... L~,..~..',__
~UTY SHERIFF'
Sheriff's Costs: $25,50 PD 01/21/98
RCPT NO 107206
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYVANIA
CIVIL ACTION - LAW
RICHARD D. POOLE, INC.,
Plaintiff
vs.
No. 98-206 Civil
SITE DEVELOPMENT, INC. and
PENNSYLVANIA NATIONAL BANK
AND TRUST COMPANY,
Defendants
NOTICE TO PLEAD
TO: Richard D. Poole, Inc.
You are hereby notified to file a written response to the enclosed Preliminary
Objections of Defendant Pennsylvania National Bank and Trust Company to Plaintifrs
Complaint within twenty (20) days from service hereof or a judgment may be entered against
you.
by:
William' can
Supreme Court No. 22080
I Irvine Row
Carlisle, PA 17013
(717) 249-7780
~
Lnw Offices
Dunenn & Otto, P.C.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYVANIA
CIVIL ACTION - LAW
.,
RICHARD D. POOLE, INC.,
Plaintiff
vs.
No. 98-206 Civil
SITE DEVELOPMENT, INC. and
PENNSYLVANIA NATIONAL BANK
AND TRUST COMPANY,
Defendants
DEFENDANT PENNSYLVANIA NATIONAL BANK AND TRUST
COMPANY'S PRELIMINARY 08,/ECTIONS TO PLAINTIFF'S COMPLAINT
AND NOW, this 2nd day of March, 1998, comes the Defendant, Pennsylvania
National Bank and Trust Company, by and through its attorneys, Duncan & Otto, P.C. by
William A. Duncan, Esquire and files the following Preliminary Objections to Plaintiffs
Complaint:
I. PRELIMINARY 08JECI'ION RAISING FAILURE TO STATE A CAUSE OF
ACTION
I, Defendant Pennsylvania National Bank and Trust Company is joined in this action
as a co-defendant in Count II of Plaintiffs Complaint because of Defendant's position as
Assignee under the Construction Contract between Carlisle Equities, LLC and Richard D.
Poole, Inc., Plaintiff.
2. Plaintiff has not included Carlisle Equities, LLC as a Defendant in its Complaint
but has named Site Development, Inc. as Defendant.
Law omces
Dunenn & Otto, P.C.
3. Defendant Pennsylvania Nationnll3nnk nnd Trust Compnny is joined solely
because of its relationship with Carlisle Equities, LLC, therefore, failure to name Carlisle
Equities, LLC as a Defendant is improper.
WHEREFORE, Defendant Pennsylvania National Bank and Trust Company
requests this Honorable Court to dismiss Count II of Plaintiffs Complaint for failure to state a
cause of action against Defendant as required by Pa. R.C.P. 1028(a)(4).
II. PRELIMINARY 08JECTION FAILURE TO JOIN A NECESSARY PARTY
4. The averments ~ontained in paragraphs (one) I through three (3) are incorporated
herein by reference as though fully set forth.
5. Plaintiff has failed to join a necessary party to the suit in that it has failed to name
Carlisle Equities, LLC as a Defendant.
WHEREFORE, Defendant Pennsylvania National Bank and Trust Company
requests this Honorable Court to dismiss Count II of Plaintiffs Complaint for failure to join a
necessary party under Pa.R.C.P. 1028(a)(5).
III. PRELIMINARY08JECTION RAISING PENDENCY OF AN AGREEMENT FOR
ALTERNATIVE DISPUTE RESOLUTION
6. The contract on which plaintiff attempts to assert a claim against the Bank is an
Assignme:1t of Construction Contract.
7. The construction contract which Carlisle Equities, LLC assigned to the Bank
incorporates AlA General Conditions.
8. AlA General Conditions include a provision that requiresthe parties to submit
Lnw Offices
Dunenn & Otto, P.C.
disputes concerning the contract to AA^ arbitration.
9. Defendant believes and therefore avers that the claim Plaintiff attempts to state
against the Bank relates to the construction contract and is. therefore, subject to mandatory
arbitration.
WHEREFORE, Defendant Pennsylvania National Bank and Trust Company
requcsts this Honorablc Court to dismiss Count II of Plaintiffs Complaint for sccking relief
prior to complction of alterative dispute resolution as rcquircd by Pa.R.C.P. 1028(a)(6).
Respcctfully submittcd,
DUNCAN & OTTO, P.C.
\A~/tt{;~C~
William A. Duncan, Esquire
Attorncy for Pa. National Bank
and Trust Company
I Irvine Row
Carlislc, PA 17013
(717) 249-7780
Attorney 1D#22080
Lnw Offices
Dunenn & Otto, P.C.
Vcrification
I verify that any allegations of fact madc in thc foregoing Prcliminary Objections are
true and corrcct. I have becn authorizcd by my clicnt to prepare and filc the aforesaid
Prcliminary Objcctions and I am familiar with the facts and havc prcpared thc same with facts
provided to mc by my clicnt.
This verification is made subject to thc pcnalties of 218 Pa. C.S. Scction 4904, relating
to unsworn falsification to authorities.
\ AA %\{1l vU~ Q'L",
Dated: a./fJ7!f!
Lnw Offices
Duncnn & Otto, P.C.
'.
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CERTIFICATE OF SERVICE
I hcrcby certify that on this datc a copy of thc foregoing Prcliminary Objcctions
was scrvcd on counscl in thc manner indicatcd below:
FIRST-CLASS MAIL
POSTAGE PRE-PAID
ADDRESSED AS FOLLOWS:
Thomas R. Davies, Esquire
Harom & Davies, P.C.
2306 Columbia Avenue
Lancaster, P A 17603
Attorney for Plaintiff
Site Development, Inc.
c/o Frey, Petrakis, Deeb & Blum
1601 Market Strcet, 6th Floor
Philadclphia, PA 19103
Agcnt for Defcndant
by:
\NVOOLtC.
Lt t\. LCl-'~
William A. Duncan
Supreme Court No. 22080
I Irvinc Row
Carlisle, PA 17013
(717) 249-7780
Date:
:;1:)7 h~
. .
Law Offices
Duncnn & Otto, P.C.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYVANIA
CIVIL ACTION - LAW
RICHARD D. POOLE, INC.,
Plaintiff
vs.
No. 98-206 Civil
SITE DEVELOPMENT, INC. and
PENNSYLVANIA NATIONAL I3ANK
AND TRUST COMPANY,
Dcfendants
PETITION OF DEFENDANT PENNSYLVANIA NATIONAL BANK AND
TRUST COMPANY TO STAY PENDING RESOLUTION OF RELATED ARBITRATION
I. Defendant Pennsylvania National Bank and Trust Company is a namcd party to
the above captioned suit by virtue of its position as Icndcr to Carlisle Equities, LLC and as
Assignee of thc Construction Contract between Carlislc Equitics, LLC. A copy of the
Construction Loan Agrecmcnt between Carlisle Equitics, LLC and Pcnnsylvania National
Bank and Trust Company is attached hereto, incorporated herein by reference and markcd
Exhibit "A". A copy of the Assignment of Construction Contract is attach cd hcrcto,
incorporated hercin by rcfcrence and marked Exhibit "B".
2. Plaintiffs Complaint avers that Site Development, Inc. has failed to make final
payment in the amount of $75,614.48, said amount being thc final payment duc on the
construction of the CVS Pharmacy in Carlisle, Pcnnsylvania..
3. Plaintiffs Complaint avers that Pennsylvania National Bank and Trust Company
should havc issued chccks on account of construction draws payable jointly to Carlisle
Lnw Offices Equities, LLC and Richard D. Poole, Inc.
Dunenn & Otto. P.C.
Vcrification
I vcrify that any allcgations of fact madc in thc forcgoing Pctition are truc and correct.
I have becn authorized by my clicnt to prcparc and filc the aforcsaid Petition and I am
familiar with thc facts and havc prcpared thc same with facts providcd to me by my client.
This verification is made subject to thc penal tics of 218 Pa. C.S. Scction 4904, relating
to unsworn falsification to authoritics.
':c,A IlC1clOu^-,,- CC~
Dated: :J.j;;. 7/'i f
CERTIFICATE OF SERVICE
I hcrcby certify that on this datc a copy of thc forcgoing Prcliminary Objections
was servcd on counsel in thc manncr indicatcd bclDw:
FIRST-CLASS MAIL
POSTAGE PRE-PAID
ADDRESSED AS FOLLOWS:
Thomas R. Davies, Esquire
Harom & Davies, P.C.
2306 Columbia Avenue
Lancaster, PA 17603
Attorney for Plaintiff
Sitc Development, Inc.
c/o Frey, Petrakis, Deeb & Blum
1601 Market Street, 6th Floor
Philadelphia, PA 19103
Agcnt for Defendant
by;
\!7\;~'.A~\OA-
William A. Duncan
Supreme Court No. 22080
1 Irvine Row
Carlisle, PA 17013
(717) 249-7780
Date: ::;'/;;;'7/9$
I ,
Lnw Offices
Duncan & Otto, P.C.
I
CONSTRUCTION LOAN AGREEMENT
THIS CONSTRUCTION LOAN AGREEMENT (this "Agreement'), made this 28th day of
October, 1996, by CARLISLE EQUITIES, L.L.C., a limited liability company (the "Borrower'), In favor
of PENNSYLVANIA NATIONAL BANK AND TRUST COMPANY, a national banking corporation (the
"Len del"), recites and provides as follows:
RECITALS:
A. The Borrower Is the owner of a parcel of land situate In the Borough of Carlisle,
County of Cumberland, Pennsylvania (the "Property"), which is more particularly described In the
"Mortgage" (as hereinafter defined).
B. The Borrower has applied to the Lender for a loan in the prlnclpal amount not to
exceed $1,050,000 (the "Loann) to finance the construction and equipping on the Property of a CVS
Pharmacy (collectlvely, the "Pro)ecr).
C. The Lender and the Borrower agree that the Loan shall be made by the Lender and
accepted by the Borrower on the terms and conditions of this Agreement.
AGREEMENT:
The Borrower and the Lender, Intending to be legally bound hereby, agree as follows:
1. Definitions. Capitalized terms which are not defined herein shall have the meanings
assigned to them In the other Loan Documents. As used In this Agreement the terms listed below
shall have the following meanings unless otherwise required by the context:
(a) Architect. Any architect approved from time to time by the Lender.
(b) Architect's Contract. An agreement between the Borrower and the Architect In
form and substance satisfactory to the Lender.
(c) Assignment of Contracts. The Assignment of Contracts of even date herewith
between the Borrower and the Lender whereby the Borrower assigns to the Lender all of the
Borrower's right, tille and Interest In and to all contracts, licenses, permits and approvals with
respect to the development of the Property and the construction of the Project.
(d) Construct/on Contract. An agreement In form and substance satisfactory to
the Lender between the Borrower and the Contractor for the construction of the Project.
(e) Construction Cost. The cost of laber, materials, demolition, land
improvements, utility Installations, architectural and engineering services, Improvements and all
other "hard" and "soft" costs and charges involved In the development of the Property and the
construction thereon of the Project in accordance with the Plans.
(f) Construct/on Cost Breakdown. The schedule setting forth the Construction
Cost and those costs to which the proceeds of the Loan shall be applied, which schedule shall
EXHIBIT
I
A
"
have been delivered to and approved by the Lender prior to the "First Advance" (as described
In Sactlon 5).
(g) Contractor. Any contractor approved trom time to time by the Lender.
(h) Guaranty. The Guaranty and Suratyshlp Agreement ot even date herewith
between the Guarantor and the Lender whereby the Guarantor Jointly and severally guarantee
the payment and performance of the Borrower's obligations contained In the Loan Documents.
(I) Guaranfor. Vernon W. Hili, II and John P. Silvestri, all Jointly and severally.
0) Inspecfor. Any Inspector appointed or approved from time to time by the
Lender. The Lender may, In Its sole discretion, appoint the Architect as its Inspector.
(k) Loan Documents. The Note, this Agreement, the Mortgage, the Guaranty, the
Assignment of Contracts and any and every other document executed by the Borrower or the
Guarantor In connection with the Loan.
(I) Mortgage. A first lien priority open-end construction mortgage of even date
herewith from the Borrower to the Lender encumbering the Property and all Improvements,
fumlshlngs, fixtures and equipment now located or hereafter to be placed on the Property.
(m) Note. The Note of even date herewith made by the Borrower payable to the
order of the Lender in the principal amount of the Loan, bearing Interest and payable as set
forth therein.
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(n) Plans. The plans and specifications for the construction of the Project on the
Property, as approved by the Lender, Including any changes thereto approved by the Lender.
(0) Premises. The Property and the Project.
2. The Loan. The Lender agrees to lend to the Borrower an amount not to exceed the
amount of the Loan, but not more than seventy-five (75%) percent of the appraised value of the
Project, in installments, upon the terms and conditions herein set forth, and the Borrower agrees to
take the Loan and comply with and perform all of the terms and conditions of this Agreement.
3. Note and Mortgage. The Loan, or so much thereof as may trom time to time be
advanced to the Borrower, shall be evidenced by the Note and secured by the Mortgage, the Guaranty
and any other collateral provided therefor.
4. Construction of the Project. The Borrower agrees to begin construction of the
Project promptly after the date hereof and to prosecute diligently and continuously the construction of
the Project In accordance with the Plans and the Construction Cost Breakdown so that the Project Is
fully complete and ready for use and occupancy on or before August 1, 1997. On or before the date
hereof, a master set of the Plans and the Construction Cost Breakdown shall have been delivered to
the Lender, each page of which shall be Initialed or otherwise Identified and approved by the Lender
and the Borrower, which master set shall govem all questions that may arise with respect thereto. The
Construction Cost Breakdown shall Include an Itemization, by trade and materials, of the cost of
construction, utilities, financing, acquisition and other project costs. All requests for material changes
In the Plans and the Construction Cost Breakdown must be made In writing by the Borrower and shall
be conditioned upon the written approval of the Lender and subject to such conditions and
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qualifications as the Lender In Its sole discretion may prescribe, It being understood that the Lender at
all times shall have tha right to requlra compliance with the original Plans and the Construction Cost
Breakdown, except where modified with Its approval as herein provided.
5. Condlt/ons to the First Advance. The Borrower agrees that the following conditions
shall be precedent to any obligations of the Lender hereunder and shall be satisfied prior to the first
advance:
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(a) The Loan Documents shall be duly authorized, executed, acknowledged
(where appropriate), and delivered to the Lender.
(b) The Borrower shall deliver to the Lender a policy of title Insurance, In the full
amount of the Loan, Issued by a title Insurer licensed to Issue such policies In the
Commonwealth of Pennsylvania, and othelWlse acceptable to the Lender, In the name of the
Lender. Such policy shall be endorsed to provide affirmative insurance against liens of
mechanics and materialmen and such other malters as Lender may require.
(c) The Borrower shall deliver to the Lender an appraisal of the Property made
by a member of the Appraisal Institute ("MAl"). acceptable to the Lender, with conclusions and
In all malters satisfactory In form and substance to the Lender.
(d) The Borrower shall deliver to the Lender evidence satisfactory to the Lender
of the existence of builder's risk (with coverage in the amount of 100% of the Construction
Cost and Insuring against, without limitation, vandalism and malicious mischlel), public liability
and workmen's compensation insurance relating 10 the Premises In amounts and Issued by
companies approved by the Lender, and otherwise satisfactory In form and substance to the
Lender. If flood Insurance Is required for the Premises under the Flood Disaster Protection Act
of 1973, the Borrower shall deliver to the Lender flood Insurance coverage wrllten by a
company satisfactory to the Lender In an amount and form acceptable to the Lender.
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(e) The Borrower shall deliver to the Lender evidence satisfactory to the Lender
that the Property consists of one or more lots of record duly subdivided in accordance with
applicable law and that all Govemmental Authorities having or claiming jurisdiction have
authorized construction thereon of the Project, Including, but not limited to building permits.
(I) The Borrower shall deliver to the Lender such evidence confirming the
satisfaction of alt applicable zoning, land use, subdivision and building codes as the Lender
may require.
(g) The Borrower shall deliver to the Lender evidence satisfactory to the Lender
that the public water and sewer facilities and other utilities constructed or to be constructed at
the Premises will be available and of sufficient capacity to fully serve the Intended use of the
Premises.
(h) The Borrower shall payor deliver to the Lender satisfactory evidence of
payment of that portion of the Construction Cost In excess of the amount of the Loan and shall
deliver to the Lender such other Information concerning the Construction Cost as may be
required by the Lender.
(I) The Borrower shall have delivered to the Lender a list of the names of all
Contractors and subcontractors to be used in connection with the Project.
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0> The Borrower shall execute and deliver to the Lender such financing
statements as the Lender may require to perfect Its security Interests created In the Loan
Documents.
(k) The Borrower shall deliver to the Lender a current perimeter survey of the
Property, acceptable to the title Insurer and showing no matters which are not acceptable to
the Lender.
(I) The Borrower shall deliver to the Lender an environmental site audit In form
and substance satisfactory to the Lender.
(m) The Borrower shall pay all counsel fees of the Lender.
(n) The Borrower shall pay to the Lender the loan origination fee of $10,500.
(0) The Borrower shall have filed or will file, prior to the start of any work by a
Contractor, In the Office of the Prothonotary of the County of Cumberland, Pennsylvania, a
stipulation against liens with respect to the Premises executed by each Contractor and
subcontractor having a contract for the construction of Improvements on any part of the
Premises, which stipulation shall provide for the waiver of the right of each Contractor and any
subcontractors, materialmen and suppliers to file any lien against the Premises.
(p) The Borrower shall have delivered to Lender the lease and guaranty with
CVS Centers, Inc.
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6. CondlUons to Subsequent Advances. Advances hereunder shall be made In
accordance with the schedule of advances prepared or approved by the Lender. No advance shall be
due unless, In the judgment of the Lender, all work done In the construction of the Project to the date
of such advance has been done In a good and workmanlike manner. Requests for advances shall be
made no more often than once per month. Five (5) days prior to each advance, the Borrower shall
supply the Lender with the following completed documents:
(a) Where any portion of the proceeds of such advance Is to be paid on account
of work by the Contractor, a Contractor's Appllcatlon for Payment In the forms of American
Institute of Architects Documents AlA G.702 and G-702A, or a similar application approved by
the Lender.
(b) A written appllcatlon of the Borrower to the Lender setting forth the amount of
the advance being applied for, together with receipts or Invoices (or other evidence satisfactory
to the Lender) for the components of the Construction Cost to which such advance Is to be
applied.
(c) Where any portion of the proceeds of such advance Is to be paid on account
of work by the Contractor, a certificate of the Inspector, dated not more than ten (10) days
prior to the date for such advance, stating (Q the Inspector's estimate of the percentage of the
Project completed as of the date of such' certificate, (Ii) that the portion of the Project
completed prior to the date of such certificate has been completed In accordance with the
Plans and has been approved by the Ins~ectcr, (iil) t;,at the Inspector has been furnished and
has approved all shop and other related drawings used In connectlon with the Plans, and (Iv)
that the undisbursed proceeds of the Loan will be sufficient to pay all the Construction Cost
required for completion of constructlon of the Project.
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(d) II requested by the Lender, waivers by the Contractor and each subcontractor
and materialman 01 their rights to file or perfect mechanics' or materialmen's liens lor the work
lor which payment has been requested Irom such advance, In form and substance satlslactory
to the Lender.
(e) If requested by the Lender, a 6worn statement 01 the Borrower and the
Contractor setting forth the names, addresses and amounts due, or to become due, as well as
the amounts pravlously paid, to every subcontractor, person, firm or corporation fumlshlng
materials or performing labor In connection with the construction 01 the Project, together with
evidence 01 actual payment of amounts previously requisitioned.
7. Payment of Advances, If all conditions precedent to an advance have been
performed to the satisfaction of the Lender, the Lender shall make advances payable to the Borrower,
or Jointly to the Borrower and the Contractor (or other appropriate subcontractors), or, after a default or
an event which with notice or lapse of time or both could constitute a delault hereunder, In such other
manner as the Lender may elect; provided, however, the Lender shall In no event be required to make
any advance b:lsed on a percentage of completion greater than that estimated by the Inspector, and
provided further, however, that the Lender, may, In Its sole discretion, (x) relaln 10% of the amounts
requisitioned for labor, materials and equipment Incorporated In the Project until completion of the
Project, and (y) withhold an amount 01 the Loan sufficient to cover the unpaid balance of the
Construction Cost and to complete construction. The proceeds 01 each advance hereunder shall be
applied solely and exclusively to payment, or reimbursement to the Borrower for payment, 01 the
Construction Costin accordance with the Construction Cost Breakdcwn and the application for such
advance. Each advance whether made to the Borrower or In any other manner permitted hereby, shall
be deemed to be an advance under the Note and shall be secured by the Mortgage and the other
Loan Documents..
The Lender shall not be required to make any advance 01 the Loan If, In the opinion of the
Lender, (I) the amount of such advance sl1all (x) together with all amounts previously advanced
hereunder, be greater than the Construction Cost (as estimated from time to time by the Inspector and
the Lender) Incurred by the Borrower to the date of the requested advance, or (y) together with the
balance of the Loan, be less than the amount 01 the Construction Cost (as estimated by the Inspector
and the Lender) 01 completing the Project, (Ii) the representatloJns made and the inlormation furnished
by the Borrower to the Lender with regard to the Loan and the Borrower's qualification therelor shall
not have been or not continue to be true and not misleading In all material respects, (III) any event 01
default or any event which with notice or lapse of time or both could constitute an event of default shall
exist hereunder or under any other Loan Document or (Iv) all conditions precedent to all prior
advances are not satisfied.
If the Lender makes advances belore they are due In accordance with ns schedule of
payments because the Lender believes It advisable to do so, such advances shall be deemed to be
made In pursuance and not In modification hereol, but the making of any such advance or part thereol
shall not be deemed an approval or acceptance by the Lender of the work done on the Project prior
thereto.
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The Borrower shall receive the advances to be made under this Agreement and shall hold the
right to receive such advances In trust only to be applied to the cost 01 construction of the Project.
The Lender Is authorized but not obligated to make advances 01 the Loan to itself to pay
Interest on the Loan and any other amounts then due and payable under the Loan Documents without
any further consent or act 01 the Borrower or any other party.
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8. FInal Advance of the Loan. The Lender shall make the final advance of the Loan
(Including any retalnage held by the Lender) when the conditions to all advances hereunder have been
satlslled or waived In writing by the Lender and the Borrower supplies the Lender with the following
addltlonal documents:
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. (a) A certJllcate from the Inspector and from the Architect that the Project has
been completed in accordance with the Plans.
(b) A certificate from the Borrower setting forth the total amount of the
Construction Cosl
(c) A photographic copy of certlllcates of use and occupancy Issued by the
Borough of Cariisle and the Department of Labor and Industry of the Commonwealth of
Pennsylvania and any other certificates from appropriate officials of the JurisdIction In which the
Premises are located that the Project as completed complies with all applicable zoning, land
use, subdivision and building regulations.
(d) An as-built survey of the Premises showing the location of all propert'lllnes,
all buildings and other Improvements constructed thereon and any and all easements, right-<lf-
way or other encumbrances burdening or benefittlng the PremIses.
(e) If requested by the Lender, a final waiver of mechanics' and materialmen's
liens executed by the Contractor and each subcontractor and materialman, In form and
substance satisfactory to the Lender and the title insurer.
(I) An appraisal, in form and substance and by an appraiser satisfactory to the
Lender. reflecting a value of the Premises (with the Project complete) of at least seventy-five
percent (75%) of the then-<lutstandlng balance of the Note.
(g) All other instruments and documents reasonably requIred by the Lender,
9. Defaults. Each of the following shall constitute an event of default (an "Event of
Default') hereunder:
(a) The Borrower at any time prior to the completion of the Project abandons the
Premises or ceases work thereon or falls to carry on the construction and completion of the
Project with diligence and dispatch, in the reasonable judgment of the Lender, strictly In
accordance with the Plans and the Construction Cost Breakdown,
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(b) The Borrower makes or permits any material changes In the Plans or the
Construction Cost Breakdown without first securing written approval of the Lender.
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(c) Any lien Is llIed against the Premises and not dismissed within thirty (30)
days after written notice from the Lender to the Borrower.
(d) The Borrower assIgns or purports to assign this Agreement or any Interest
herein, or the Premises or any part thereof or intcrest therein Is conveyed or encumbered In
any way without the prior written consent of the Lender.
(e) The Project or any portIon thereof encroach upon a street or easement or
upon adjoining property, or violate any setback restriction, however created, or the
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requirements of any Govemmental Authority having Jurisdiction, or any adjoining structure
encroaches upon the Premises or on any easement appurtenant thereto to an extent deemed
material by the Lender and the encroachment or violation Is not removed or corrected within
thirty (30) days after notice from the Lender to the Borrower.
(f) The Borrower shail fall to deposit with the Lender an amount equal to the
amount by which the unadvanced portion of the Loan (Including retalnage) Is Insufficient to pay
the cost of completing the Project in accordance with the Plans within ten (10) days after the
Lender shall notify the Borrower of such deficiency, specifying In such written notice the
amount thereof. Any amounts deposited by the Borrower with the Lender to pay such
deficiency shall not bear Interest and shall be applied by the Lender as the Lender shall elect,
prior to the disbursement of any additional Loan proceeds, to pay the Construction Cost as
construction of the Project progress.
(g) In the judgment of the Lender, the Project Is materially damaged by fire or
other casualty and the Insurance proceeds plus the unadvanced portion of the Loan are
Insufficient to complete the Project and the Borrower falls to deposit with the Lender the
balance of funds required or falls to restore the Project, or If there Is Insufficient time to restore
and complete the Project within the time contemplated herein.
(h) Any material portion of the Premises shall be taken by or sold under threat of
eminent domain.
(i) The Borrower does not construct the Project In accordance with the Plans
and the Construction Cost Breakdown and In accordance with all laws, rules, regUlations and
requirements of all govemm~nlal authorities having or claiming jurisdiction, now or hereafter In
force.
(j) The Borrower does not permit the Lender or the Inspector to enter upon and
Inspect the Premises.
(k) For any cause whatsoever the construction of the Project Is at any time
discontinued or not carried on with diligence and dispatch, In the reasonable judgment of the
Lender, or If the Project, In the reasonable judgment of the Lender, have not been completed
in accordance with the Plans, or the certificate of compliance with zoning ordinances and
building regulations has not been Issued within the time contemplated herein.
(I) The Borrower fails to comply with any requirement of any Governmental
Authority having or claiming jurisdiction within thirty (30) days after notice in writing of such
requirement shall have been given to the Borrower.
(m) The Borrower executes any security agreement on any materials, fixtures or
articles used In the construction or operation of the Project or articles of personal property
placed on the Premises, or if any such materials, fixtures or articles are purchased In
conditional sale transactions or otherwise so that the ownership thereof will not vest
unconditionally in the Borrower, free from encumbrance (except any encumbrance created./ly
the Loan Documents), on delivery at the Premises.
(n) The Borrower does not furnish to the Lender, If required, the contracts, bills
of sale, statements, receipts, vouchers and agreements, or any of them, under which the
Borrower claims title to such materials, fixtures and articles.
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(0) The Borrower shall fall to keep, observe or perform any of the conditions,
stipulations, agreements or covenants contained In this Agreement or the other loan
Documents.
(p) A default or an Event of Default under any other loan Document.
10. Remed/u of the Lender. In the event of any default hereunder, the lender shall
have the following rights and remedies, each of which Is cumulative and In addition to any other rights
and remedies the lender may have under applicable law:
(a) The lender may, at Its option and upon written notice to the Borrower,
forthwith enter Into possession of the Premises and perform any and all work and labor
necessary to complete the Project substantially In accordance with the Plans and take
whatever other action necessary or desirable In the opinion of the lender to complete the
Premises as contemplated herein. For this purpose, the Borrower hereby constitutes and
appoints (such appointment being coupled with a power) the lender Its true and lawful
attomey-In-fact with full power of substitution to complete the Project In the name of the
Borrower, and hereby empowers the lender as follows:
(1) To use any funds of the Borrower for the purpose of completing the
Project In the manner set forth In the Plans.
(2) To make such additions and changes and corrections In the Plans
which shall be necessary or desirable to complete the Project In substantially the
manner contemplated by the Plans.
(3) To employ such contractors, subcontractors, agents, architects and
inspectors as shall be required for such purposes.
(4) To pay, settle or compromise all existing bills and claims which are, or
may be liens against, the Premises, or may be necessary or desirable for the
completion of the work or for the clearance of title.
(5) To execute all applications, certificates, promissory notes, and other
documents in the name of the Borrower which may be required under any agreement
of the Borrower and to do any and every act which the Borrower might do In its own
behalf.
(6) To prosecute and defend all actions or proceedings In connection with
the construction of the Project or the Premises and to take such action and require
such performance as It deems necessary.
(b) All obligations on the part of the lender to make any further advances
hereunder shall, lf the lender so elects, cease and terminate, and the Note shall, at the option
of the lender, become Immediately due and payable. Notwithstanding the foregoing, the
lender may make any advances or parts of advances after the happening of any default
without thereby waiving any right to demand payment of the t:lote andwllhout becoming liable
to make any other or further advances.
(c) At the option of the lender, the payment of the principal and all unpaid
accrued interest on the Note shall be accelerated and the lender shall have the Immediate
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right to foreclose the Mortgage as provided therein In accordance with the power of sale
contained In the Mortgage.
11. i:xpenses. Whether or not the Loan Is disbursed, In whole or In part, the Borrower
shall pay all fees, charges and expenses Incurred In the procuring, making, servicing and collecting of
the Loan Including, without limitation, charges for mortgagee tlUe Insurance and the examination of title
to the Premises, expenses of surveys, fees of the Inspector, reasonable fees of allomeys for the
Lender, Insurance premiums, taxes, assessments, water rates, sewer rates and other charges, liens
and encumbrances upon the Premises and any other similar amounts. Such amounts, unless sooner
paid, shall be paid from time to time upon demand as the Lender shall request either to the person to
whom such payments are due or to the Lender If the Lender has paid the same, or the Lender may, at
Its option, deduct from any advance to be made under this Agreement (or advance to Itself for such
purpose) any amounts necessary for the payment of such costs, and apply such amounts In making
such payments, and all sums so applied shall be deemed advances under this Agreement and be
evidenced by the Note and secured by the Mortgage and the other Loan Documents and shall bear
Interest at the Default Rate or, If none Is so provided, at the highest rate provided In the Note.
Not/cllS. Notices shall be given In a=rdance with the tenns and conditions of the
12.
Mortgage.
13. Condlt/ons Solely for the Benefit of the Lender. All conditions to the obligation of
the Lender to make advances hereunder are Imposed solely and exclusively for the benefit of the
Lender and its assigns and no other person shall have standing to require satisfaction of such
conditions In a=rdance with their tenns or be entitled to assume that the Lender will refuse to make
advances In the absence of strict compliance with any or ,all thereof, and no other person shall, under
any circumstances, be deemed to be a beneficiary of such conditions, any or all of which may be freely
waived In whole or In part by the Lender at any time if, In Its sole discretion, it deems It advisable to do
so.
14. PUblicity. The Lender shall have the right to erect a sign on the Premises Indicating
that the Lender Is providing financing for the Premises. The Lender shall also have the right to release
publicity concemlng the Loan and the Premises by media of the Lender's choice, Indicating that
Borrower Is a client of the Lender's.
15. Miscellaneous.
(a) Amendments. This Agreement cannot be amended, modified or tenninated
except by an Instrument In writing signed by both parties.
(b) Jurisdicfions, etc. The Borrower Irrevocably (x) agrees that the Lender, may
bring suit, action or other legal proceedings arising out of this Agreement or any other Loan
Document, or the transactions contemplated hereby or thereby, In the courts of the
Commonwealth of Pennsylvania In Dauphin County, Pennsylvania, or the courts of the United
States for the Middle District of Pennsylvania: (y) consents to the Jurisdiction of each such
court In any such suit, action or proceeding: and (z) waives any objection which the Borrower
may have to the laying of the venue of any such suit, action or proceeding In any of such
courts.
(c) Severability. If any tenn or provision of this Agreement or the application
thereof to any person or clrcumstancl' shall to any extent be invalid or unenforceable, the
remainder of this Agreement, or the application of such tenn or provision to persons or
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circumstances other than those as to which It Is Invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid anr:! enforceable to the
fullest extent permitted by law.
(d) Governing Law. This Agreement shall be govemed by, and construed In
accordance with, the laws of the Commonwealth of Pennsylvania.
(e) Time of Essence; Dural/on; Survival. Time Is of the essence with respect to all
of the Borrower's obligations under this Agreement. All representations and warranties of the
Borrower contained herein or In any other Loan Document or made In connection herewith or
therewnh shall survive the making, execution and delivery of this Agreement or the other Loan
Documents, any Investigation by the Lender or the making of any loan advance under the Loan
Documents. All covenants and agreements of the Borrower contained herein or In any other
Loan Document shall continue In full force and effect from and after the date hereof unlll
payment In full of all amounts due under the Note, hereunder or under any of the other Loan
Documents. Without limitation, It Is understood that all obligations of the Borrower to make
payments to or Indemnify the Lender shall survive the payment In full of the Loan,
(f) WAIVER OF JURY TRIAL. THE BORROWER HEREBY KNOWlNGL Y
WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT BY OR AGAINST THE
BORROWER RELATED TO OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS.
(g) No Waivers Generally. The Lender shall not be deemed to have waived any of
Its rights or remedies hereunder unless such waiver Is express and In writing. No delay or
failure by the Lender on anyone or more occasions to exercise its rights hereunder or at law
or In equity (Including, without limitation, the right of acceleration) shall waive or prevent the
subsequent exercise of such rights. An express waiver of any right shall not be construed as a
waiver of the Lender's right to Insist thereafter upon strict compliance with the terms hereof,
No exercise of any right by the Lender shall constitute or be deemed to constitute an election
of remedies by the Lender precluding the subsequent exercise by the Lender of any or all of
the rights, powers and remedies available to It hereunder or at law or In equity. No course of
dealing of the Lender In exercising any right, power or privilege under this Agreement or under
any other Loan Document shall affect any other exercise thereof or exercise of any other right,
power or privilege.
(h) Successors and Assigns. This Agreement shall apply to, Inure to the benefit
of and bind each of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto, Intending to be legally bound hereby, have
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caused this Agreement to be executed by its duly authorized representative.
ATTEST:
CARLISLE EaUITIES, L.l.C., a limited liability
company
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Nal11e: ~
(AlolalaRt) Geere18~i
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By: 1
Name: John . Silvestri
Managing Member
ATTEST:
PENNSYLVANIA NATIONAL BANK AND TRUST
COMPANY, a national banklng corporal/on
[CORPORATE SEAL]
'r~
Vice President
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10/28/9B 10:00
.. wl-cq-/lO Inu IliUO
5811 RICHARD POOLE
'l;nv.I~7UI 'LUt'ntNT lNC FAX Nq ~09(,
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A: asco10ng. doc
ASSIGNMENT OF CONSTRUCTION CONTRACT
THIS AGREEMENT, is made t;h.~ day of , 19_, by
and between Carlisle Equlties LLC ,-comt:i:-3t:-iftq of
------~ , co-partners ("Assignor"),
and PENNSYLVANIA NATIONAL BANK AND TRUST COMPANY, a national
banking institution ("Assignee").
. Assignee has agreed to make a construction loan to Assignor as
set forth in that certain COnsl:roction Loan Agreement dated
'C>- 2.'i"-C;'- . '
As security for the performance of all obligat.ions of Assignor
under the Construction Loan Agreement and all documents and
instruments executed pursuant thereto, Assignor has agreed to
assign to Assignee all of Assignor's right.s, title, and interest in
and under a construction contract between Assignor and
Richard D. Poole, Inc. ("General Contractor") dated
, ("Construction COntract") a true and correct
copy of which is attached hereto as Exhibit A.
NOW THEREFORE, for valuable consideration. the receipt and
adequacy of which are hereby acknowledged, and intending to be
legally bound, It'is agreed:
EXHIBIT
1. . Assiqnment. Assignor transfers, conveys, and assigns 1:0
Assignee any and all rights and claims that Assignor may have in,
under, or from the construction Contract, such Assignment to become
effective immediately. Assignee may exercise its rights and elect
its remedies hereunder upon:
(a) the occurence of any Event of Default by
Assignor in its Obligations under the construction Loan
Agreement, Mortgage, Mortgage Notes, this Agreement,
the Affidavits, or any other document executed pursuant
to this tI:ansa~tion ("Loan Document"); or
(b) upon such occurrence of an Event of Default,
the AS$ignee may, but shall not be required to, deliver
written notice to the General Contractor, or its
successors and assigns stating that Assignee has
determined to replace Assignor as the "Owner" under the
.Construction Contract (the date on which such notice 1s
delivered is hereinafter the "Effective Date"), but the
Effective Date shall have no event be prior in time to
such occurrence of default set forth in subparagraph
(a) ,
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Assignor shall not be relieved of any .obligation or
liability under the Construction Contract that arises either before
10/Z8/96 10:01
OD"' LI lOll :1311
I\l\,.u."nu I VVI...&.o
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or after the Et..~.dve LJate, the Assignor shall indemL, and bold Assignee harmless
from and against any such obligation or liability, Assignee shall not be obligated to,
perform any actions or incur any obligations or liabilities whatsoever until such time
as Assignee undertakes such obligations pursuant to this Agreement.
2. Assignor and Assignee agree, as a condition of acceptance by the General
Contractor, that all funds disbursed by the Assignee to the Assignor will be by
joint check to the Assignor and the General Contractor.
3. Reoresentation and Covenants of Assil!I1or. Assignor represents and warrants
to Assignee that there is no default now existing on the part of the Owner
under the Construction Contract, or, to the best of Assignor's knowledge, on
the part of General Contractor. Assignor shall continue to fully perform its
obligations under the Construction Contract prior to the Effective Date hereof.
4. Authorization. Assignor authorizes General Contractor to ,
Commence performance of all obligations under the Construction Contract for:
the benefit of Assignee upon receipt by General Contractor of the written '
notice from Assignee described in Paragraph 1 hereof. General Contractor'
shall be entitled to rely on such written from Assignee as conclusive proof of
Assignee's right to take such action, regardless of whether or not an Event of
Default under the Loan Documents has actually I
occurred, or (b) a dispute eKists between Assignor and Assignee regarding the i
actual occurrence of such an Event of Default. i
,
S. Further Assurances. Assignor hereby agrees to execute such other documents
and perform such other acts,as.may be necessary to enforce the rights assigned
hereunder. '
6. Governinl! Law. This Agreement shall be governed by .and Construed in
accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, THIS Assignment has been executed by
Assignor, intending to be legally bound hereby, as of the day and year fust above
written.
(00 Assil!nor")
A TrEST:
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PENNSYLVAN:rA NATIONAL BANK
AND TRUST COMPANY
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CERTIFICATE OF SERVICE
I hereby certify that on this date a copy of the Pctition of Defendant Pcnnsylvania
National Bank and Trust Company to Stay Pending Rcsolution of Rclatcd Arbitration and the
subsequcnt Rule issued March 4th, 1998 was served on counsel in the manncr indicated
below:
FIRST-CLASS MAIL
POSTAGE PRE-PAID
ADDRESSED AS FOLLOWS:
Thomas R. Davics, Esquire
Harom & Davies, P.C.
2306 Columbia Avenue
Lancaster, P A 17603
Attorney for Plaintiff
L. Oliver Frey, Esquire
Frey, Petrakis, Decb & Blum
160 I Market Street, 6th Floor
Philadelphia, PA 19103
Attorney for Defendant
Site Developmcnt, Inc.
DUNCAN & OTTO, P.C.
by: \ M,~~J:+-V\A rQ.~
William A. Duncan
Supremc Court No. 22080
1 Irvine Row
Carlisle, PA 17013
(717) 249-7780
"
Date: March 13, 1998
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