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HomeMy WebLinkAbout99-05198,. ??l` ?'. ti`, r; ?Q, 5 s ..r r? ? ? Yi k^ CUMBERLAND PARTNERS, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., et al, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5198 CIVIL TERM ORDER OF COURT AND NOW, this 23`d day of July, 2001, upon consideration of the Motion of Circuit City Stores, Inc. for Protective Order Pursuant to Pa. R. Civ. P. 4012, and of Plaintiff's Response to Circuit City Stores, Inc.'s Motion for Protective Order, a discovery conference is scheduled in chambers of the undersigned judge for Wednesday, August 29, 2001, at 3:45 p.m. BY THE COURT, Lr, Oler, Michael J. Clement, Esq. Stephen M. Rae, Esq. 484 Norristown Road Blue Bell, PA 19422 Attorneys for Plaintiff C? J. Mark D. Bradshaw, Esq. P.O. Box 11670 Harrisburg, PA 17108-1670 Attorney for Defendants J. Michael Kunsch, Esq. 1515 Market Street Nineteenth Floor Philadelphia, PA 19102 Attorney for Circuit City Stores, Inc. :rc JUL 1 y200??? WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP By: Michael J. Clement, Esquire/Stephen M. Rae, Esquire Attorney 1. D. No. 2003 9/65 1 9 9 484 Norristown Road Attorneys for Plaintiff Blue Bell, PA 19422 Cumberland Partners r CUMBERLAND PARTNERS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. OLYMPIC REALTY and : No. 99-5198 DEVELOPMENT CORPORATION : a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., et al Defendants CIVIL ACTION -EQUITY ORDER AND NOW, this day of , 2001, upon consideration of Circuit City Stores, Inc.'s motion for protective order and Plaintiffs response thereto, it is hereby ORDERED and DECREED that the motion is denied. By the Court: WISLER, PEARLST NE, TALONE, CRAIG, GARRITY & POTASH, LLP By: Michael J. Clement, Esquire/Stephen M. Rae, Esquire Attorney I. D. No. 20039/65199 484 Norristown Road Attorneys for Plaintiff Blue Bell, PA 19422 Cumberland Partners CUMBERLAND PARTNERS, IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. OLYMPIC REALTY and : No. 99-5198 DEVELOPMENT CORPORATION : a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., et al Defendants : CIVIL ACTION -EQUITY PLAINTIFF'S RESPONSE TO CIRCUIT CITY STORES INC.'S MOTION FOR PROTECTIVE ORDER Plaintiff, Cumberland Partners ("Cumberland") hereby responds to Circuit City Stores, Inc.'s ("Circuit City") motion for protective order as follows: Admitted. 2. Denied as stated. Cumberland served a subpoena upon Circuit City which included a notice of deposition. 3. Denied as stated. The notice of deposition is a written document that speaks for itself. 4. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the allegations set forth in paragraph 4 of Circuit City's motion and the allegations are, therefore, denied. Admitted. 6. Denied as stated. Cumberland served a subpoena upon Circuit City which included a notice of deposition. ? vV?A Admitted. 8. Admitted. It is admitted that Cumberland's counsel advised corporate counsel for Circuit City Stores, Inc. that due to a conflict in the schedule of other counsel in the matter the depositions would not go forward on June 8, 2000 but would need to be rescheduled. 9. Admitted. 10. Admitted. 11. Denied as stated. Cumberland served the subpoena upon Circuit City Stores, based upon information and the belief that the Circuit City was involved in the negotiations and discussions resulting in the contracts permitting certain Circuit City to operate the retail space in Cumberland County. It is Cumberland's belief that representations were made by the individuals and/or entities with whom Circuit City entered into its contractual relationships for its retail space in Cumberland County that are relevant and otherwise discoverable in the context of the above-captioned matter. 12. Admitted. 13. The subpoena and notice of deposition clearly delineate the areas of inquiry for the corporate designee deposition. 14. The subpoena and notice of deposition clearly delineate the areas of inquiry for the corporate designee deposition. By way of further answer, "withdrawable real estate" is only one of the areas of inquiry set forth in the subpoena notice of deposition. 15. Denied as stated. Any statements made by Hampden Commons Condominium Associates/Olympic Realty and Development Corp, pertaining to Circuit City's retail space in Cumberland County are statements by a third party and, therefore, cannot be the subject of any potential attomey/client privilege asserted by Circuit City. 16. Denied as stated. Any statements made by Hampden Commons Condominium Associates/Olympic Realty and Development Corp. pertaining to Circuit City's retail space in Cumberland County are statements by a third party and, therefore, cannot constitute any trade secret or other confidential research development and commercial information. WHEREFORE, Plaintiff, Cumberland Partners respectfully request that This Honorable Court enter an order denying Circuit City Stores, Inc.'s motion for protective order. WISLER, PEARLSTINE, TALONE, CRAIG GARRITY & POTASH, LLP 4? t MICHAEL J. CLEMENT STEPHEN M. RAE Attorneys for Plaintiff, Cumberland Partners \\WISLER\D\Uscrs\mgb\My Documeno\Snnr\Curnbertand Partners\Response to Motion for Protective Order 071101.doc 07/17/2001 10:30 AM WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP By: Michael J. Clement, Esquire/Stephen M. Rae, Esquire Attorney I. D. No. 2003 9/65 1 99 484 Norristown Road Attorneys for Plaintiff Blue Bell, PA 19422 Cumberland Partners CUMBERLAND PARTNERS, Plaintiff Vs. OLYMPIC REALTY and DEVELOPMENT CORPORATION : a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., et al Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 99-5198 CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I certify that on July 17, 2001 a true and correct copy of Plaintiffs Response to Circuit City Stores, Inc.'s Motion for Protective Order was served via first class mail, postage prepaid upon the following: Mark D. Bradshaw, Esquire Stevens & Lee P. O. Box 11670 Harrisburg, PA 17108-1670 J. Michael Kunsch, Esquire Sweeny & Sheehan 1515 Market Street, 19`n Floor Philadelphia, PA 19102-1983 WISLER, PEARLSTINE, TALONE CRAIG, GARRITY & POTASH, LLP By: MM. Rae, Esquire Attorneys for Plaintiff Cumberland Partners 4 Total Pages MICHAEL J. CLEMENT, ESQUIRE Attorney I.D. No. 20039 WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 (610) S25-8400 Attorneys for Plaintiff CUMBERLAND PARTNERS, a Pennsylvania limited partnership, 2 Ponds Edge Drive, Chadds Ford, Pennsylvania, 19317 Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, 415 East 52nd Street, 47th Floor, Suite AC New York, New York 10022 and H. C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, 213 Market Street, 8th Floor Harrisburg, Pennsylvania 17101 and HAMPDEN COMMONS CONDOMINIUM ASSOCIATION, a Pennsylvania non-profit corporation 213 Market Street, 8th Floor Harrisburg, Pennsylvania 17101, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. 99 -S/9?r ' : CIVIL ACTION- EQUITY NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and fling in writing with the r Court your defenses or objections to the claims set forth against you. You are warned that, if you fail to do so, the case may proceed without you and a Judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 MICHAEL J. CLEMENT, ESQUIRE Attorney I.D. No. 20039 WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorneys for Plaintiff (610) 825-8400 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, 2 Ponds Edge Drive, Chadds Ford, Pennsylvania, 19317 Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, 415 East 52nd Street, 47th Floor, Suite AC New York, New York 10022 and H. C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, 213 Market Street, 8th Floor Harrisburg, Pennsylvania 17101 and HAMPDEN COMMONS CONDOMINIUM ASSOCIATION, a Pennsylvania non-profit corporation 213 Market Street, 8th Floor Harrisburg, Pennsylvania 17101, Defendants ••, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 9 9 S/ 41 ?„ . %<w CIVIL ACTION: CIVIL ACTION - EQUITY COMPLAINT 1. Plaintiff, Cumberland Partners, is a Pennsylvania limited partnership, having as its general partner, Brandywine Corporation, a Delaware corporation with offices at 2 Ponds Edge Drive, Chadds Ford, Pennsylvania, 19317. 2. Olympic Realty and Development Corporation a/k/a Olympic Realty & Development Corp. is a New York corporation regularly doing business in Cumberland County in the Commonwealth of Pennsylvania with business offices at 415 East 52nd Street, 47th Floor, Suite AC, New York, New York, 10022. 3. H. C. Holdings Limited Partnership is a Pennsylvania limited partnership having as its general partner, Brondle Boulevard Corporation, a Pennsylvania corporation with business offices at 213 Market Street, 8th Floor, Harrisburg, Pennsylvania, 17101. 4. Hampden Commons Condominium Association is a Pennsylvania non-profit corporation, created by Capitol Products Corporation and Olympic Realty and Development Corporation as joint declarants by Declaration of Condominium recorded in Cumberland County, Miscellaneous Book 526, Page 569, with business offices at 213 Market Street, 8th Floor, Harrisburg, Pennsylvania, 17101. 5. At all times material hereto and up to the present, Plaintiff has owned and operated a shopping center fronting on Carlisle Pike in Hampden Township, Cumberland County, Pennsylvania. 6. On or about December 21, 1995, Olympic Realty and Development Corporation was the equitable and/or title owner of certain real property located in Hampden Township, Cumberland County, Pennsylvania adjacent to Plaintiffs shopping center. 7. In or about August, 1995, Olympic Realty and Development Corporation approached Plaintiff and induced Plaintiff to grant easements to Olympic Realty and Development Corporation which were needed by Olympic Realty and Development Corporation to gain additional access to Carlisle Pike thereby enhancing the value and development of its shopping center to be known as Hampden Commons. Olympic Realty and Development Corporation offered Plaintiff the right to purchase certain land owned and/or controlled by Olympic Realty and Development Corporation adjacent to lands owned by Plaintiff. -2- A -e .. 8. In the summer and fall of 1995, Olympic Realty and Development Corporation negotiated with and agreed to grant rights to Plaintiff to purchase certain land owned and/or controlled by Olympic Realty and Development Corporation in return for the easements required by Olympic Realty and Development Corporation over lands owned by Plaintiff. 9. On or about December 21, 1995, Olympic Realty and Development Corporation entered into an Agreement To Provide For Cross-easements and Options with Plaintiff, a true and correct copy of which is attached hereto as Exhibit "A" and made a part hereof (the "Agreement'). 10. A Memorandum of Cross-easements and Options Agreement dated the 16th day of October, 1995 effective as of December 21, 1995 was executed by Olympic Realty and Development Corporation and Plaintiff and a true and correct copy of that Memorandum is attached hereto as Exhibit "B" and made a part hereof (the "Memorandum of Agreement'). 11. At the time of the execution of the Agreement, Olympic Realty and Development Corporation (sometimes hereinafter referred to as "Olympic") was the title owner and the equitable owner of parcels of real property located in Hampden Township, Cumberland County, Pennsylvania now sometimes collectively known as the "Hampden Commons Parcel" located adjacent to the shopping center owned and operated by Plaintiff. 12. By Declaration of Condominium ("Declaration") recorded on July 30, 1996 in Cumberland County Miscellaneous Book 526, Page 569, Capitol Products Corporation and Olympic Realty and Development Corporation as joint declarants created Hampden Commons Condominium. 13. By Assignment of Declarant Rights, Capitol Products Corporation and Olympic Realty and Development Corporation assigned their Joint Declarant rights to H. C. Holdings Limited Partnership, as Successor Declarant, as recorded on August 2, 1996 in Cumberland County Miscellaneous Book 526, Page 953. -3- I, ., 14. Pursuant to the Agreement and Memorandum of Agreement, Olympic granted Plaintiff options to purchase the balance of an 8 Acre Area being part of the Hampden Commons Parcel to the extent that 8 Acre Area ( the "8 Acre Area") was not to be used by Olympic in connection with its planned development of its shopping center known as Hampden Commons. (See Paragraph H and Paragraph 5 of the Agreement). The Agreement, in Paragraph H provides, in pertinent part, as follows: "H. Olympic Realty has agreed to sell three (3) acres of the Capitol Products Parcel; and (2) Grant an option to Cumberland Partners to purchase the remaining unneeded acreage in the eight (8) acre portion of the Capitol Products Parcel which is to the rear and south of the K-Mart Parcel as shown in Exhibit "A"." Attached as Exhibit "A" to the Agreement is a plan showing the 8 Acre Area. 15. Plaintiff purchased three (3) acres of the Capitol Products Parcel as described in Paragraph H of the Agreement set forth hereinabove and Plaintiffs rights in that three-acre parcel are the subject of Count II hereinafter. Plaintiff has exercised its option to purchase the "remaining unneeded acreage in the 8 acre portion of the Capitol Products Parcel" but Defendants have refused to recognize Plaintiffs option; and this is the subject of Count I hereinafter. 16. In consideration for the options granted by Olympic pursuant to the Agreement, Plaintiff granted to Olympic certain cross-easements which permitted Olympic to gain access for its proposed shopping center known as Hampden Commons across certain real estate owned by Plaintiff. Olympic thereby obtained access to public roadways and land to be dedicated for public roadways as required by governmental and quasi-governmental authorities having jurisdiction thereof in order for Olympic to receive approvals to construct its shopping center known as Hampden Commons. (See paragraph 2 of the Agreement). 17. Pursuant to the Agreement, Olympic granted to Plaintiff an easement to use any excess capacity in a certain retention/detention basin in the event a retention/detention basin was required to be constructed by Olympic on any of the above-described 8 Acre Area (see paragraph 10 of the Agreement). -4- 18. There exists an area of 2.6 acres t which is part of the 8 Acre Area and which was not needed by Olympic for the construction of its shopping center known as Hampden Commons. 19. The area of 2.6 acres f which is part of the 8 Acre Area which was not needed by Olympic for the construction of its shopping center known as Hampden Commons was made "withdrawable real estate" in the Declaration of Condominium of Hampden Commons Condominium recorded on July 30, 1996 in Cumberland County Miscellaneous Book 526, p. 569 and is described in a legal description for Lot 2, January 10, 1996 in Book 526, p. 661 in order to allow its sale to Plaintiff. 20. Olympic Realty and Development Corporation signed a joinder which is part of and incorporated in the Memorandum of Agreement entered into by and among Olympic Realty and Development Corporation and Plaintiff which is attached hereto as Exhibit "B" and made a part hereof (see Exhibit "B", Book 526, p. 525) which provides, in pertinent part, as follows: "A Declaration of Condominium of Hampden Commons Condominium shall be recorded, which declaration shall reserve unto the Declarant or its successors or assigns, the right to withdraw Lot 2 and Lot 3, respectively, as shown on the Preliminary/Final Subdivision and Land Development Plan of Hampden Commons, dated October 19, 1995, and recorded in the Recorder of Deeds for Cumberland County, Pennsylvania, in Plan Book 72, p. 50, from the condominium in order to convey the same to Cumberland Partners or its successors or assigns if Cumberland Partners, or its successors or assigns exercises its option to purchase such land." (Emphasis added). Lot 2 referenced in the above quote is the 2.6 acres f which is part of the 8 Acre Area which was not needed by Olympic for the construction of its shopping center known as Hampden Commons. COUNTI 21. Plaintiff incorporates herein by reference all of the material allegations set forth in Paragraphs 1 through 20 above, as if the same were fully set forth herein. -5- 22. By correspondence dated June 28, 1999, under the signature of Michael J. Clement, Esquire, as counsel for Cumberland Partners, Plaintiff notified Olympic and its counsel that Plaintiff was giving Olympic thirty (30) days prior written notice of its right to exercise its option to purchase the balance of the above-described 8 Acre Area, namely 2.6 acres f. A true and correct copy of that letter dated June 28, 1999 is attached hereto as Exhibit "C". 23. By correspondence dated July 7, 1999, Ronald M. Lucas, Esquire as counsel for Olympic advised Plaintiff that Olympic determined, in its sole discretion, that the remaining property (the balance of the above-described 8 Acre Area) is needed by Olympic for the development of its shopping center. A true and correct copy of that letter dated July 7, 1999 is attached hereto as Exhibit "D" and made a part hereof. 24. The Agreement includes a warranty from Olympic to Plaintiff that Olympic would build approximately 250,000 square feet (of shopping center space) in the approximate location as set forth on an Exhibit to the Agreement. (See paragraph 3 of the Agreement and see Exhibit "A" to the Agreement). 25. Plaintiff relied upon Olympic's warranty as set forth in paragraph 3 of the Agreement in determining that it would accept as consideration options from Olympic as described in the Agreement and determined that (i) there would be a balance of the above-described 8 Acre Area which Plaintiff would purchase from Olympic based upon Olympic's construction of a shopping center having approximately 250,000 square feet as warranted; and (ii) that Plaintiff would have the right to use a portion of the balance of the above-described 8 Acre Area for open space or for retention/detention of storm water from its shopping center expansion and, Plaintiff would have access by easement to any excess capacity in detention/retention facilities constructed by Olympic. -6- 26. But for Olympic's warranty as set forth in Paragraph 3 of the Agreement, and Olympic's agreement to grant options to Plaintiff for the purchase of land including the 2.6 acres t which is part of the 8 Acre Area which was not needed by Olympic for the construction of its shopping center known as Hampden Commons, Plaintiff would not have entered into the Agreement and would not have granted the easements required by Olympic for the construction of Hampden Commons. 27. Olympic constructed or caused the construction of the Hampden Commons shopping Center substantially in accordance with its warranty as set forth in Paragraph 3 of the Agreement. 28. Correspondence from Olympic's counsel dated July 7, 1999, (Exhibit "D") states that Olympic determined, in its sole discretion, that the remaining property (the balance of the above described 8 Acre Area) is needed by Olympic for the development of its shopping center. 29. Use of the remaining portion of the above-described 8 Acre Area by Olympic, its assignees, successors in interest or affiliates for additional development of its shopping center, is a breach of Olympic's warranty as set forth in paragraph 3 of the Agreement, and deprives Plaintiff of the consideration it was promised and for which Plaintiff transferred cross-easements and other interests pursuant to the Agreement. 30. Plaintiff has transferred the consideration and met its obligations as required by the Agreement. 31. Olympic has refused to permit Plaintiff to exercise its option to purchase the remaining the portion of the above-described 8 Acre Area in violation of the Agreement. 32. H. C. Holdings Limited Partnership, as the Successor Declarant holds title and/or controls title to the 2.6 acres f remaining portion of the above-described 8 Acre Area which is the subject of Plaintiffs option to purchase. -7- 33. Hampden Commons Condominium Association is a domestic Pennsylvania non-profit corporation which controls the open space or other undeveloped land or withdrawable real estate of which the 2.6 acre t remaining portion of the above-described 8 Acre Area is a part. WHEREFORE, Plaintiff requests that this Honorable Court Order: (a) That defendants specifically perform Olympic's obligations and duties pursuant to the Agreement including without limitation, Olympic's duty and obligation to transfer to Plaintiff the balance of the 8 Acre Area in exchange for the purchase price of $50,000 per acre: (b) Defendant shall pay Plaintiffs legal fees, costs of litigation and court costs; and (c) Such other relief as this Court deems just and proper under the circumstances. COUNT II of Relief As Performance 34. Plaintiff incorporates by reference all of the material allegations set forth in Paragraphs 1 through 33 above, as if the same were fully set forth herein. 35. On or about July 30, 1996, H.C. Holdings Limited Partnership, as Successor Declarant to Capitol Products Corporation and Olympic Realty and Development Corporation, Joint Declarants of Hampden Commons Condominium, transferred to Plaintiff a 3 Acre Parcel of land being part of the same premises which were conveyed unto Capitol Products Corporation. A true and correct copy of the Deed dated July 30, 1996 between H.C. Holdings Limited Partnership as Grantor and Plaintiff as Grantee recorded in Deed Book 143, Page 934, Cumberland County, Pennsylvania is attached here to Exhibit "E" and made a part hereof (hereinafter referred to as the "3 Acre Parcel"). 36. The 3 Acre Parcel benefits from an easement, license, right, and privilege of passage and use, both pedestrian and vehicular for the purpose of ingress and egress to and from Carlisle Pike pursuant -8- to a Declaration of Easement recorded in Deed book 187, Page 759 in Cumberland County, Pennsylvania, true and correct copies of which are attached hereto collectively as Exhibit "F" and made a part hereof (the "Declaration of Easement"). 37. Attached hereto as Exhibit "G" is a plan prepared for Harvritch Associates dated October 2, 1972. Plaintiff has modified that plan in order, to the best of Plaintiffs knowledge, information and belief, to show the location of the easement granted in the Declaration of Easement. 38. Plaintiff believes and therefore avers that Defendants have disavowed the Declaration of Easement and have refused to recognize the Plaintiffs rights in and to the Declaration of Easement. 39. The Easement granted in the Declaration of Easement runs with the land and is a right and interest in the chain of title of the 3 Acre Parcel transferred by H.C. Holdings Limited Partnership to Plaintiff by Deed dated July 30, 1996 in Deed Book 143, Page 934. WHEREFORE, Plaintiff requests that this Honorable Court Order that: (a) The 3 Acre Parcel is benefited by an easement, license, right and privilege of passage and use, both pedestrian and vehicular for the purpose of ingress and egress to and from Carlisle Pike as more particularly described in the Declaration of Easement Recorded in Cumberland County Deed Book 187, Page 759; and -9- I (b) Defendant shall pay Plaintiffs legal fees, costs of litigation and court costs; and (c) Such other relief as this court deems proper and appropriate under the circumstances. Respectfully submitted, N: UMM%1kcnicN1y DmwizndNlJOContplainaCumbcriand PaMcm-ClnAm 8/:4199 9;42 AM.jlryslp WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP By: CHA EM ENT, ESQUIRE Office Court at Walton Point 484 Norristown Road Blue Bell, PA 19422 (610) 825-8400 Attorneys for Plaintiff 10- a VERIFICATION I,?(1!?G' Uiercne_?r- , state that I am the L4 /?,.?,f .ofBrandywine Corporation, the General Partner of Cumberland Partners, the within-named Plaintiff, authorized to take this verification stating upon personal knowledge or information and belief that the averments set forth in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unswom falsification to authorities. Date: 8 vi6C-J, Exhibit A AGREEMENT TO PROVIDE FOR CROSS EASEMENTS AND OPTIONS THIS AGREEMENT TO PROVIDE FOR CROSS EASEMENTS AND OPTIONS ("Agreement') is made thisz,rt day of &,c-Gtr 1995, by and among OLYMPIC REALTYAND DEVELOPMENT CORPORATION, a New York corporation ("Olympic Realty'); CUMBERLAND PARTNERS, a Pennsylvania limited partnership ("Cumberland Partners'); and KMART CORPORATION, a Michigan corporation ("Kmart'). RECITALS: A. Olympic Realty is the owner of a parcel of real property located in Hampden Township, Cumberland County, Pennsylvania (the "Capitol Products Parcel'); and B. Cumberland Partners is the owner of a certain parcel of real property located in Hampden Township, Cumberland County, Pennsylvania (the "Kmart Parcel"; the Capitol Products Parcel and Kmart Parcel are sometimes individually referred to as "Parcel" and collectively referred to as the Tarcels'). C. Kmart is a lessee of the Kmart Parcel. D. Olympic Realty desires to develop the Capitol Products Parcel for a commercial/retail shopping center. E. Olympic Realty, Cumberland Partners, and Kmart agree that it is in the best interests of all parties that cross-easements exist between the adjacent Parcels for the purpose of ingress and egress of vehicular traffic between the Kmart Parcel and Capitol Products Parcel. F. Olympic Realty has agreed to grant two (2) access easements between the Capitol Parcels as shown in Exhibit "A", attached hereto and made a part hereof. G. Cumberland Partners, with the advice and consent of Kmart, has agreed to grant an access easement across the Kmart Parcel as shown in Exhibit "A" attached hereto and made a part hereof. H. Olympic Realty has agreed to sell three (3) acres of the Capitol Products Parcel; 1 EXHIBIT "A" t . ew.VlP4gLY?mQCRS M-W-b,, Z IM A , and (2) grant an option to Cumberland Partners to purchase the remaining unneeded acreage in the eight (8) acre portion of the Capitol Products Parcel which is to the rear and south of the Kmart Parcel as shown in Exhibit "A". 1. The parties hereto desire to memorialize their understanding by and among the parties and set forth the covenants, terms, and conditions for the granting of such easements and options. J. The owner of each Parcel shall be deemed to refer to such parties and the respective heirs; successors, grantees and assigns of such parties (each as "Owner" or collectively, the "Owners"). NOW, THEREFORE, in consideration of the above-stated premises and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto covenant ' and declare, for themselves, successors, and assigns, and successors in title to the parcels as follows: 1. ftm_Pic Realty Conrineencv. The Mutual obligations of the parties to fulfill their obligations under this Agreement shall be contingent upon Olympic Realty or one of its I affiliates or assigns obtaining title in fee simple to the Capitol Products Parcel within thirty-six (36) months of the date of this Agreement unless otherwise extended by written agreement among the parties. 2. Cross-Easements. Olympic Realty and Cumberland Partners agree to grant to each other the following non-exclusive rights and easements for the benefit of and as appurtenances to, each Parcel, with respect to, and as a burden upon, the other Parcel: (a) a non-exclusive perpetual right and easement for pedestrian and vehicular ingress and egress upon and across the Parcels, in the areas as set forth in Exhibit "A" , as more particularly described in Exhibit "B" attached hereto and made a part hereof for the purpose of driving, walking, or going upon or across such cross-easement area as indicated in Exhibit "A" (the "First Cross Easement'), however, this shall not include any cross parking easement or arrangement unless mutually agreed upon in writing between the Owners; (b) .A second cross-easement directly in front of the facility currently leased by Kmart on the Kmart Parcel for access to and from the Parcels for the same purposes as set forth in paragraph 2(a) above as indicated in Exhibit "A" and as more particularly described in Exhibit "C" attached hereto and made a part hereof (the "Second Cross Easement"); and (c) Kmart consents in the cross easements referred to in this paragraph 2; and (d) Olympic Realty shall be solely responsible for expenses incurred In constructing the First Cross Easement and Second Cross Easement, thereafter, Cumberland 1) L4,0R.VVA0LV%a=CR3 D..b., 21. IM Partners and Olympic Realty agree that the First Cross Easement and Second Cross Easement shall be solely maintained by Olympic Realty in accordance with the terms and conditions on . . the Declaration of Reciprocal Easements and Restrictions described in Exhibit "D" and "E", respectively, attached hereto and incorporated by reference herein. (e) Cumberland Partners, at its sole expense, shall have the right at any time to relocate the Second Cross Easement up to 50 feet in either direction from where presently indicated on Exhibit "A", provided that the dimension of the relocated Second Cross Easement shall not exceed the dimensions as shown on Exhibit "A" (f) Cumberland Partners shall be entitled to a twenty (20) foot wide construction easement around the perimeter of the First Cross Easement and Second Cross 'Easement. 3. Warranty, Olympic Realty warrants that the retail buildings as shown on Exhibit "A" for the Capitol Products Parcel will be built in the approximate location shown thereon and will contain an area of approximately 250,000 square feet. This warranty is given solely for informational purposes and as necessary for the granting of the cross-easements and options contained herein and may not be relied upon as accurate for any other purpose. The parties have agreed that Exhibit "A" shall contain a "no building area". 4. Escrow of Cross Easement Ameements. (a) Contemporaneously with the execution of this Agreement, Olympic Realty and Cumberland Partners shall execute the Cross Easement Agreements attached hereto as Exhibit "D" (the "First Cross Easement") and Exhibit "E" (the "Second Cross Easement"). Both Cross Easement Agreements shall be held in escrow by Olympic Realty's attorney. (b) At the time of settlement for the Capitol Products Parcel by Olympic Realty, (1) the First Cross Easement shall be released to Olympic Realty for recording at the time of settlement for the Capitol Products Parcel by Olympic Realty, and (2) the Second Cross Easement shall be released to Cumberland Partners for recording. If said settlement does not occur or Olympic Realty fails to purchase the Capitol Products Parcel within the time allotted in paragraph 1 above, then the escrow agent shall (1) mark the front page and signature page of the First Cross Easement "null and void" and return the original First Cross Easement to Cumberland Partners and (2) mark the front page and signature page of the Second Cross Easement "null and void" and return the original Second Cross Easement to Olympic Realty. 5. Rights of Option. Subject to the conditions contained herein, Olympic Realty 3 1AALV211eLYMMCW D-,".2LIM hereby irrevocably grants to Cumberland Partners the exclusive option rights effective the date of Settlement on the Capitol Products Parcel by Olympic Realty for a period which shall expire 36 months from the later of (i) settlement on the Capitol Products Parcel by Olympic Realty, or (ii) written notice by Olympic Realty to Cumberland Partners of the amount of remaining acreage available for Tract 3 as defined in Paragraph 5(b) below: (a) to purchase for the sum of Ten ($10.00) Dollars, a two (2) acre area ('Tract 1") as further described in Exhibit "F" attached hereto and made a part hereof and one (1) acre area ('Tract 2") as further described in Exhibit "G", attached hereto and made a part hereof, both within the eight acre area as shown on Exhibit "A", to be conveyed in one lot to Cumberland Partners as a lot addition, provided, however, that such option shall only be effective if the conditions in paragraph 1 are fulfilled. Notwithstanding the above the sixty (60) day option period for Tract 1 and Tract 2 shall be extended an additional day for each day that settlement is scheduled for the purchase of the Capitol Products Parcel by Olympic Realty beyond 90 days from the date of this Agreement. (b) to purchase at a price of Fifty Thousand ($50,000.00) Dollars per acre the l balance of the eight acre area (and no less than this amount unless said purchase is for the construction of a retention/detention basin) ('Tract 311) as further described in Exhibit "H" attached hereto and made a part hereof, not needed by Olympic Realty'as shown on Exhibit "A" (the "Remaining Acreage Option"). Olympic Realty shall have the right to regrade and remove fill from Tract 3 for the use and development of the Capitol Products Parcel, whether or not Cumberland Partners exercises its option to purchase Tract 3, for up to twelve (12) months after the date of settlement on the Capitol Products Parcel by Olympic Realty. For purposes of this paragraph the "balance of the eight acre area not needed by Olympic Realty" shall mean the remaining property not subject to the options set forth in paragraphs 5(b) and (c), which are determined at the sole discretion of Olympic Realty, not required for development of the shopping center on the Capitol Products Parcel and, if developed, would not either_(1) increase the development costs, directly or indirectly, of the Capitol Products Parcel; or (2) require any municipal approvals (other than subdivision approvals) or variances, however, in no event shall Cumberland Partners be entitled to less than the three acre area described in subparagraph (a) above 6. 00tion Payments. In the case of the Access Option, payment is hereby acknowledged by Olympic Realty. If the option is exercised to purchase the Remaining Acreage, the total consideration for the purchase of the Remaining Acreage is due at settlement. 4 L ALWOLYNACCR3 Ondw M. IWf 7. &ereise of options. (a) Cumberland Partners may exercise the options as provided in paragraph 5 above any time prior to 5:00 p.m. on the day in which the option period for such applicable option expires as provided in paragraph 5 (the 'Expiration Date'), by delivery of written notice to Olympic Realty of Cumberland Partner's intent to exercise the appropriate option. In the event an option is not exercised by Cumberland Partners in the manner provided herein or on or before the Expiration Date of said option, such option shall expire without further action of any party, automatically terminate, and thereafter be null and void and have no force and effect. (b) Within sixty (60) days of the date of this Agreement, Olympic Realty shall furnish to Cumberland Partners a title insurance commitment verifying the status of the title of the Capitol Products Parcel. Cumberland Partners acknowledges that all necessary parties have joined in the execution of this Agreement and the documents set forth in the exhibits to this Agreement. (c) For. purposes of the Remaining Acreage Option, Cumberland Partners shall give Olympic Realty thirty (30) days prior written notice of its right to exercise said options whereupon Cumberland Partners shall, at its expense and its option, obtain an updated title insurance binder, survey and environmental report. During said thirty (30) day due. diligence period, Cumberland Partners, their employees and agents shall have the right to access the properties and perform such reasonable tests as are needed in their sole discretion, however, Cumberland Partners agree to indemnify and hold harmless Olympic Realty from any damages or injuries which may result from the actions of Cumberland Partners, their employees or agents. (d) This Agreement is conditioned on Olympic Realty being able to convey good and marketable title for Tract 1 and Tract 2 to Cumberland Partners. (e) Cumberland Partners or its agents shall conduct a Phase 1 environmental study of Tract 1 and Tract 2 to be completed within sixty (60) days of the date of this Agreement. Such report shall be made available to Olympic Realty within such sixty (60 ) day period. If the Phase 1 study requires any further remediation in compliance with the Greenfields Buyer/Seller Agreement as defined in Paragraph 12 below, then Olympic Realty shall immediately conduct such remediation, otherwise Cumberland Partners shall have the right to either terminate this Agreement by giving written notice of said termination to Olympic Realty within 15 days of receipt of notice from Olympic Realty that it does not intend to i 5 "-VMOLYW CW 0M., 16. IM perform such remediation and this Agreement shall be null and void or extend the option to purchase until such remediation is completed. Olympic Realty shall perform such remediation with due diligence and Cumberland Partners shall have the right to enforce said remediation through the right of specific performance. (f) Simultaneously upon the execution of this Agreement, the parties hereto have executed a Memorandum of Option which shall be recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, a copy of which is attached hereto and marked Exhibit "I". 8. Certified Funds. All payments required under this Agreement shall be made by certified or cashier's check or by other immediately collectable form of payment, including wire transfer of funds. 9. Settlement. Settlement on Tract 1 and Tract 2 shall occur contemporaneously with settlement on the Capitol Products Parcel by Olympic Realty. Settlement on the Remaining Acreage Option shall occur no later than ninety (90) days from the date an option is exercised by Cumberland Partners. Time is of the essence for any settlement as provided herein. 10. Retention/Detention Basin Easement: In the event a retention/detention basin is required on any of the eight acre area shown on Exhibit "A" (net of any land sold to Cumberland Partners under paragraphs 5(a) - (b) above), Olympic Realty grants to Cumberland Partners a non-exclusive right and easement to utilize any excess capacity of said retention/detention basin; provided, however, in the event such excess capacity is insufficient to service the Kmart Parcel, Cumberland Partners shall be obligated, at its sole expense, to enlarge such basin to adequately service the Kmart Parcel, provided further, however, that any such enlargement shall not cause the Capitol Products site to be deficient in green area, violate any Municipal ordinances or regulatory laws, or cause Olympic Realty, or any other owner of the Capitol Products Parcel to incur, directly or indirectly, additional costs. 11. , Restrictive Covenant. Olympic Realty agrees that the following restrictive covenant shall encumber the Capitol Products Parcel, which restriction shall be included in the Declaration of Reciprocal Easements and Restrictions as set forth in Exhibit "D" attached hereto and incorporated by referred herein: "For so long as Kmart Corporation, its "affiliate" or "successor" shall operate a "discount department store"-on the Kmart Parcel, no portion of the Capitol Products Parcel shall be used as a "discount department store" containing more 6 • 0ALVVA0LYMnr_CM O=W, 14, IM than 61,000 square feet of floor area, except with respect to any use commenced (or permitted in a lease executed) during a period when the restrictions did not apply. For so long as Kmart Corporation, its "affiliate" or "successor" shall operate a "supermarket" integrated into a "discount department store" on the Kmart Parcel, no portion of the Capitol Products Parcel shall be used as a "supermarket" or food store, except with respect to any use commenced (or permitted in a lease or other occupancy agreement executed) during a period when the restrictions did not apply, provided however, that if Kmart does not expand to include a "supermarket" or food store within thirty-six (36) months of settlement on the Capitol Products Parcel by Olympic Realty this restriction shall not apply. As used herein, the term "affiliate" shall mean any person, firm, corporation, partnership, association or other business entity which directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with Kmart Corporation. As used herein, the term "successor" shall mean any successor to Kmart Corporation by merger, consolidation or operation of law or the purchaser of all or substantially all of the assets of Kmart Corporation. As used herein, the term "discount department store" shall mean a store containing not less than 61,000 square feet of gross floor area on the ground floor, with an overall retail concept based on a discounting price structure, carrying a full line of general and specialty merchandise, including "hard goods" and "soft goods (as such terms are generally used within the retailing industry)." 12. Remediation. The parties hereto acknowledge that the Capitol Products Parcel was formerly used for an aluminum door and window manufacturing plant, and has been deemed a contaminated site by the Department of Environmental Protection (formerly Department of Environmental Resources) for the Commonwealth of Pennsylvania and is subject to a Consent Order and Agreement entered into as of the 27th day of January, 1995, by and among the Commonwealth of Pennsylvania, Department of Environmental Protection, Capitol Products Corporation and Olympic Realty (the "Greenfields Buyer/Seller Agreement"). Olympic Realty hereby, acknowledges Cumberland Partners, their successors or assigns, as a third party beneficiary to the Greenfields Buyer/Seller Agreement and shall make a partial assignment of Olympic Realty's rights and remedies in favor of Cumberland Partners in accordance.with paragraph 7 of the Greenfields Buyer/Seller Agreement, upon the exercise and closing of the.. options set forth in this Agreement. 7 L'w.VRAOLYMnCCM ond., 14 1993 13. Entrance lmorovements. Olympic Realty shall be responsible for the cost of all improvements with respect to the access easements described in Exhibit "A", however, should Kmart make any additional improvements to said easement areas or any other easement area granted herein at the time that Kmart expands its existing building, then Kmart shall be liable for the cost of said improvements. Kmart and Olympic Realty must provide Cumberland Partners with the plans and specifications for all contemplated improvements with respect to said access easement. Cumberland Partners shall have ten (10) business days from the receipt of said plans and specifications to object to same, otherwise, said plans and specifications shall be deemed approved. All improvements must be built in accordance with all rules and regulations imposed by governmental agencies having jurisdiction and in a lien free condition. 14. Apportionments Olympic Realty and Cumberland Partners shall each pay one-half(1/2) of all realty transfer. taxes imposed as a result of the transfer of any property-, pursuant to.this Agreement., 15. Construction Easement. The parties hereto agree that Olympic Realty shall be entitled to a temporary construction easement twenty (20) foot in width around the perimeter of the First Cross Easement and Second Cross Easement as shown on Exhibit "A", provided that (a) Olympic Realty shall restore such area to its original condition upon completion of construction; and (b) during the term of the construction easement Olympic Realty or its agents shall not interfere with the use of any current parking spaces or the ongoing business operations on the Kmart Parcel during normal business hours. This construction easement shall expire upon completion of the construction on the Capitol Products Parcel. 16. Nonwaiver. No delay or omission of either party in the exercise of any right accruing upon any default of the other Owner shall impair such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. IT Modification. This Agreement may not be amended, supplemented, modified, or terminated except, in writing, executed by the parties to be bound thereby. 18. Notices. Any notice, report, or demand required or committed or desired to be given tinder this Agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes if it is delivered (i) personally, (ii) by overnight carrier, prepaid by the sender, or (iii) mailed by registered or certified mail, return receipt requested, postage prepaid to the parties at the addresses shown below or at such other addresses the respective 1-, 8 44ALVIMOLYYRCat3 panbr U.jM parties may from time to time designate by like notice. Each such notice shall be effective upon being so delivered. i If to Cumberland Partners: Attn: Phillip C. Giovinco In care of Brandywine Group P.O.Box 500 Chadds Ford, Pa. 19317 If to Kmart: cc: Joseph W. Gaynor 2637 McCormick Dr., Suite B Clearwater, Fl. 34619 Kmart Corporation Attn: Leonard B. Clark 3100 W. Big Beaver Road Troy, Michigan 48084 If to Olympic Realty: Olympic Realty and Development Corporation Attn: David Schwartz 424 E. 52nd St., Ste. 113 NY, NY 10012 19. MiseeManeous. (a) If any provision of this Agreement, or portion thereof, shall be held invalid, inoperative, or unenforceable, the remainder of this Agreement shall not be affected thereby. .(b) This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to conflicts of law provisions. (c) The article headings in this Agreement are for convenience only, shall in no way define or limit the scope or content of this Agreement, and shall not be considered in any construction or interpretation of this Agreement or any part thereof. (d) This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, and assigns. (e) This Agreement may be executed in multiple counterparts, each of which shall be regarded as original and all of which together shall constitute one and the same instrument. IN 47TNESS WHEREOF, the parties hereto have caused this Agreement to be executed and sealed as the day and year first above-written. 9 MALVRAOLYMPICCR3 0,16.116. IM parties may from time to time designate by like notice. Each such notice shall be effective upon being so delivered. If to Cumberland Partners: In care of Brandywine Group P.O.Box 500 Chadds Ford, Pa. 19317 If to Kmart: Kmart Corporation Attn: Leonard B. Clark 3100 W. Big Beaver Road Troy, Michigan 48084 If to Olympic Realty: Olympic Realty and Development Corporation Attn: David Schwartz 424 E. 52nd St., Ste. 1B NY, NY 10012 19. Miscellaneous. (a) If any provision of this Agreement, or portion thereof, shall be held invalid, inoperative, or unenforceable, the remainder of this Agreement shall not be affected thereby. (b) This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to conflicts of law provisions. (c) The article headings in this Agreement are for convenience only, shall in no way define or limit the scope or content of this Agreement, and shall not be considered in any construction or interpretation of this Agreement or any part thereof. (d) This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, and assigns. (e) This Agreement may be executed in multiple counterparts, each of which shall be regarded as original and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and sealed as the day and year first above-written. 9 • BALVDAOLY&UMNEW Sapsmbsr M IM Attest: Secretary Witness: tteSt: OLYMPIC REALTY AND DEVELOPMENT CORPORATION .By: D sident 'I 10 EXHIBIT A-1 LEGAL, DESCLZ_UMON All those certain two tracts or parcels of land situated in Hampden Township, Cumberland County, Pennsylvania, bounded and described as follows: Tract No. i Beginning at a point on the southern. right-of way line of the Carlisle Pike (U.S. Route 11, S.R._ 0011) said point being located on the western right-of-way line of an unnamed and unopened fifty' foot (501) street, thence from said point.of Beginning, by said western right-of-way line South two degrees twenty five minutes twenty two seconds West (9 02°251 2211 W) - a distance of four hundred twenty seven and eighty four one hundredth feet (427.840) to a point on the northern right-of-way line of an unnamed and unopened fifty foot (501) street; thence by said northern right-of-way North sixty five degrees thirteen minutes and zero seconds West (N 65° 131 0011 W) "a distance of one hundred twenty two and fifty one hundredths feet (122.501) to a point; thence by land now or late of MGB Enterprises Inc. North twenty six degrees six minutes twenty seconds East (N 26° 06' 2091 E) a distance of fifty and ninety three one hundredths feet (50.931) to a point; thence by the same North two degrees thirty two minutes zero seconds East (N 02° 321 do" E) a distance of.two hundred seventy six and thirteen one hundredths' feet •(376.131) to a point on the southern right-of way line of the Carlisle Pike; thence by the southern right-of way line, of the Carlisle Pike, by a curve to the left, having a radius of eleven thousand five hundred nine and nineteen one hundredth feet (R= 11,509.191), an arc length of one hundred one and four one hundredth feet '(A/L= 101.041) to a point, the place of Beginning. Said tract contains 40311.41 square feet or 0.9254 acres. Tract No. 2 Beginning at a point on the southern right-of way line of the Carlisle Pike (U.S. Route 11; S.R. 0011) said point being located on the eastern right-of-way line of an unnamed and unopened fifty foot (501) street, thence from said point of beginning, by said southern right-of way line of the Carlisle Pike, by a curve to the left, having a radius of eleven thousand five hundred nine and nineteen one hundredth feet (R= 11,509.191), an arc length of. twenty eight and seventy three one hundredth feet (A/L= 28.72') to a point; thence by the same South sixty three degrees fifty eight minutes nineteen seconds East (9 63° 58' 191' E) a distance of seven hundred ninety two and fifty two one hundredth feet (792.521) to a point; thence by land now or late of Cumberland Partners South twenty six degrees three minutes thirty four seconds West (9 26° 030 34" W) a distance of nine hundred eighty four and sixty six one hundredth feet (984.660 to a point to a point; thence by the same South seventy four degrees six minutes forty seconds East (9 74° 060 4011 E) a distance of one thousand seven and thirty four one hundredth feet (1,007.340 to a concrete monument; thence by land now or late of Twigg Family Trust South zero degrees six minutes thirty four seconds West (8 00" 06' 34" W) a distance of three hundred twenty six and fifty three one hundredth feet (326.530 to an iron pipe on the line of land now or late of the United States of America (Defence Distribution Region East); thence by land now or late of the United states of America (Defence Distribution Region East) North seventy five degrees nine minutes and fifty three seconds West (N 75° 09' 5311 W) a distance of one thousand two hundred six and eighty one one hundredth feet (1,206.331) to a concrete monument; thence by the same'North seventy five degrees zero minutes and forty seven seconds West (N 75° 00' 47" W) a, distance of one twenty nine and fifteen one hundredth feet (29.i5I) to a re-bar; thence by the same South two 'degrees thirty nine minutes twenty three seconds West (8 02° 39' 2311 W) a distance of one hundred forty six and ninety eight one hundredth feet (146.98!) to a concrete monument; thence by the same North eighty. eight degrees three minutes and fifteen seconds West (N 88° 030 1511 *) a . distance of five hundred twenty eight and seventy nine one hundredth feet (528.791) to a concrete monument; thence by land now or late of Dauphin Distribution North-.eighty seven degrees fifty nine minutes and eighteen seconds West (N 87° 59''18" W) a distance of two hundred sixty six and six one hundredth feet (266.061) to a concrete monument; thence by land now or late of overnite Transportation Company North twenty five degrees fifty three minutes thirty three seconds East (N 25° 53''33" E) a.distance of eight hundred fifty seven and twenty five one hundredths feet (857.259) to a point; thence by the same North sixty five degrees thirteen minutes and zero seconds West (N 65° 13' 00^ W) a distance of seventy three and forty three one hundredths feet (73.434) to a point; thence by the same North twenty five degrees fifty three minutes thirty three seconds East (N 25° 536 33" E) a distance of four hundred ninety nine and seventy seven one hundredths feet (499.771) to a point on the southern right-of-way line of an unnamed and unopened fifty foot (501) street; thence- by said southern right-of-way South sixty five degrees thirteen minutes and zero seconds East (8 65° 13' 0011 E) a distance of one hundred sixty four and eighty three hundredths feet (164.84') to a point; thence by the eastern right-of-way line of an unnamed and unopened fifty foot (501) street North twenty four degrees forty seven minutes zero seconds East (N 24° 471 0011 E) a distance of sixty nine and fifty seven one hundredths feet (69.571) to a point; thence by the same North two degrees twenty five minutes twenty two seconds East (N 02°•25! 2211 E) a distance of four hundred five and twelve one hundredths feet- (405.121) to a point on the southern right-of way line of the Carlisle Pike, the place-of Beginning. Said tract contains 36.5618 acres. EXHIBIT A-2 LEGAL DESCRIPTION FOR K-MART PARCEL JANUARY 5, 1995 All that certain parcel or tract of land situate in Hampden Township, Cumberland County, Pennsylvania, as recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania, in Deed Book "29", Volume "N", Page 11960", more particularly bounded and described as follows to wit: BEGINNING at a point on the southern right-of-way line of the Carlisle Pike (U.S. Route 11):said point lying 1,618 feet east of the intersection of the' eastern" right-of-way line of Wingate Drive with the southern right-of-way line of the Carlisle Pike (U.S. Route 11) ; Then along the southern right-of-way line of the Carlisle Pike (U. S. Route 11) South 64 -degrees 41,.minutes 45 seconds East 370.00 feet to a point; Then South 25 degrees 18 minutes 15 seconds West 218.10 feet to o-a point; Then South 64 degrees 41 minutes 45 seconds East 334.98 feet to a point; Then South 00 degrees 38 minutes 15 seconds East 655.00 feet to a point; Then North 74 degrees.- 52 minutes 00 seconds West 1007.34 feet to a point; Then North 25 degrees 18 minutes 15 seconds East 985.01 feet to a point, THE PLACE OF BEGINNING. EXHIBIT A TO AGREEMENT TO PROVIDE FOR CROSS EASEMENTS AND OPTIONS (the "Agreement") INDEX 1 • Capital Products Parcel, Exhibit A-1 2. Krnart Parcel, Exhibit A-2 3. Site Plan, Exhibit A-3 The cross easements referred to in paragraph 2 of the Agreement granted by Olympic Realty shall be a blanket non-exclusiv6, perpetual right and easement for the benefit of Cumberland Partners, as the owner of the Kmart Parcel, its successors, mortgagees, employees, tenants and customers of tenants for ped upon and across the walks and estrian and'vehiculaz ingress and egress having a Beginning of driveways (excluding parking) of the Capital Products Parcel responsibilities of Access Easement as shown on the Site Plan. The maintenance Olympic shall be within the First Cross Easement and Second Cross Easement as further described as Olympic's Maintenance Obligation Area on the Site Plan. 4. The eight (8) acre parcel as referenced in Recital H of the Agreement has been reduced to five and 661100ths (5.66) acres and described in Exhibit A-4 and located on the Site Plan as Lots 2 and 3 respectively. :•, 5. The First Cross Easement, Exhibit B and located on the Site Plan 6. The Second Cross Easement, Exhibit C and located on the Site Plan 7. Declaration of Reciprocal Easement and Restrictions for First Cross Easement, Exhibit D 8. Declaration of Reciprocal Easements and Restrictions for Second Cross Easement, Exhibit E 9. Tract 1 referred to as Exhibit F and Tract 2 referred to as Exhibit G are consolidated as a three (3) acre tract described as Exhibit F and located on the Site Plan as Lot 3 10. Tract 3, formerly described as Exhibit H is now a two and 661100ths (2.66) acre parcel, v described as Exhibit G and located on the Site Plan as Lot 2. 11. Memorandum of Agreement attached hereto and incorporated as part of the Agreement as 'Exhibit H a:krhibita.2 Exhibit A -A Exhibit 8 o V ! r r I{{ UI if Ii rI r 00 5 t- r" • as x = ce - 8 n - i ? ; w n a0 9 t fe. „d-F{r .LIumn ?y? _ f. i ' 3 iT i Q L WW CE N 8 t mf `? 6 i?o X 1,j '12 [2 l? 00 - 11, i 1 sts r ,,;not /? EXHIBIT 'A-A" 0 ilglgx3 c4r-`" ; r?c/ h f`[f?B•v C,c MTiMORANDVM OF AGREEMENT THIS MEMORANDUM OF CROSS EASEML-NTS AND OPTIONS AGREEMENT dated the 16th day of October, 1995, effective as of December 21, 1995, by and among Olytnplc Realty & DeYelopment Corp, afk/a Olympic Realty and Development Corporation, a New York corpontlon ("Olympic Realty); Cumberland Partners, a Pennsylvania limited partnership ("Cumberland Partners"); and Kmart, a Michigan corporation ("Kmart") R E C I T A L S A. Olympic Realty is the equitable holder of certain properties situate In Hampden Township, Cumberland County, Pennsylvania pursuant to Agreements of Sale and Purchase dated May 13, 1994 between Capitol Products Corporation and Olympic Realty, m amended (the "Agreement of Sale") which is more particularly described in Exhibit A attached hereto (the "Capitol Products Parcel"). 13. Cumberland Partners Is the owner of a certain parcel of real property located in Hampden Township, Cumberland County, Pennsylvania which is more particularly described In Exhibit 13 attached hereto (the "Kmart Farrel"); tthe Capitol Products Parcel and Amish Kmart Parcel are sometimes collectively referred to as the "Parcels"), C. Kmart is the lessee of Lite Kmart Parcel. D. On or about December 21, 1995, Olympic Realty, Cumberland Partners and Kmart entered Into an agreement to provide for cross casements and options (the "Cross Easements and Options Agreement") whereby (1) the parties agreed to grant cross easements to each other between the Parcels as shown on the site plan attached hereto as Exhibit C (the "Site Plan"), and, (2) QlYmelc RealtVgranl gp(ions to CuF-jbprland I!A=cxs fAr-I11i_2_ 7.ad T,ot?Jp£3lssLnn ht n -C [*I Products Parcel as shown o the Site PI and as mrjher, deseribe?_p" "T ^t,?:.and "Low", respective) in the - -Z ___.P.LSIi_minary/Final Suhdiv_lsion and Isnd _ Development Plan of Hampden Commons, dated October 19, 1995 and recorded in the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 72, page 50; E. The Cross Easements and Options Agreement also provide for a retentionidetention basin easement on the Czpiml Products Parcel and a restrictive covenant on the Capitol Products Parcel against the use of the Capitol Products Parcel by a discount department store and food store. BOOK 526 PACE S14 EXHIBIT "Bet P. The Cross Easements and Options Agreement also Sets forth the rights and obligations of the panics with regard to the options and cross easements and mutual uses of the Parcels with regard to such options and easements. 0. The cross easements shall be subject to declarations of reciprocal casamests and restrictions for two (Z) cross easements between the Parcels NOW THL• REFORE, for and in consideration of the above-state premises, the parties covenant and agree as follows; ' 1. . Notice Period. Olympic Realty, Cumberland Partners, and Kmart hereby give notice of public record of the existence of the cross Easements and Options Agreement which (I) provides option rights of Cumberland Partners to purchase certain property on the Capitol Products Parcel; (ii) provides for cross casements between the parcels subject to declarations of reciprocal easements and restrictions as provided for In the Cross Easements and Options Agreement, (iii) provides for the limitation of use of the Capitol Products Parcel for a discount department store and food store; (iv) provides for a rerention/detention basin easement on the Capitol Products Parcel; and (v) provides for all other matters contained In the Cross Easements and Options Agreement. All parties dealing with the Parcels, or attempting to aualn any interest in the Parcels, on or after the date hereof, are hereby put on public notice and Inquiry of the matters contained In the Cross Easements and Options Agreement. All rights of Olympic Really, Cumberland Partners, and Kmart as it pertains to the cross easements between the Parcels and spccifie options granted In the Parcels to Cumberland Partners are governed by the terms of the Cross Easements and Options Agreement as it may be amended from time to time. 2. Connreroan This Memorandum of Agreement may be executed in several counterparts, each of which shall be fully effective as an original and all of which together shall constitute one of the same instrument. 1100K 526 PACE 51.5 IN "77"VESS WHEREOF, the Parties have executed this Agreement on the day and year first abave written. Attest: OLYMPIC REALTY AND DEVE PMM CORD ON ecretary By' Preside Witness: CUMBERLAND PARTNERS ` ' ey' / Mr d-4?... CCrfxrraSwu iDri.. ? ?1 •?, I• C>ener?.e Pct..•t,..?... J'" " Attest: K•NLART ?k \ 1\ 1 S sy:?. C? ecretary President Y« x: Bom 526 PALE 516 ', .. ? . wuverorwncm ow.r„a,.. COMMONWEALTH OF PE NSYLVANIA : COUNTY OF p G,.Te 1„f. st. On this, thei W lday Of-CUt}aLr .19.95, before me, a Notary public, personally appeared David J. Schwartz who acknowledged himself to be the President of Olympic Realty and Development Corporation a New York Corporation, and that he sa such President being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the Corporation by himself as President. IN W77NESS WHEREOF, I hereunto set my hand and official seal. Note My Commission Expires: (SEAL-) his Man. QnOOaaGG?r?y car rb'rv,rnta: Flees 6?p.2L rae? ?1:t _???j?'? <<j?jry aQ ?f?;fi ?•ibep' BOOK 526 PAGE 517 rw..?oarunavm, o.w. u,w, COMMONWEALTH OF PENNSYLVANIA ; COUNTY OF ?e I o.war a. On this, the fday of Qc?, 1995, before me, a Notary Public, personally appeared JOB,' II'p C & i o o who acknowledged hlmselftenalf to be the vi't. Presiel ant P'l: Y3rs4.dyvi.?e Ce rJoPra.Y-:ew?Gaaa ra( pk'f`a< _ of Cumberland Partners a Pennsylvania limited partnership and that he/she as such Dice R-e s ide Tbeing authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the Corporation by himself/herself as V I C• Pre < i d _-f- IN WITNESS WHEREOF, I hereunto set my haad and official seal. No Public _ My Commission Expires: (SEAL) A?AL OT O JAN" LNJOHNSON. nananCu Ina . ,sae 000)( 526 PALE 518 V Ji LVi tls ,L? a,,.a? •?ra I ,A,11.MMOLMIrJCn1 On,wl lL ,w1 STATE OF MICHIGAN I COUNTY OF ®a?I4M^ sa' On this, the day of 'Layintwy, 1995, before me, a Notary Public, personally appeared Il.{.L. CNi ?PS who acknowledged bimself4tesse4i- to be :be nioi Old n2c. of iCmart a Michigan corporation, and that helsher as such n. uY Ott; 06c5. being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the Corporation by hiwself/IlereelEea Snior Old &i1 on4- rN WITNESS WHEREOF, I hereunto set my hand and official seas. ? Notn ublic ??L? . , My Commission Expires: CSEA.L) d? /AhNx9s'r' . VtC'VURIh L aUEKHOUT Notary Public, Mncomb Cwnry, Mich. Aaing In O+kttnd Launty My eomtnittlor, Mpnm: Sept, 1.1, i;?7 BOOK 528 PALE 53.9 EXHIBITA TO MEMORANDUM OF AGREEMENT (the "Agreement") INDEX i • Capital Products Puts 1. Exhibit A-1 2. Kmnrt Parcel, Exhibit A-2 3. Site Plan, Exhibit A-3 The cross easements referred to In Paragraph 2 of the Agreement To Provide For Cross Easements and Options granted by Olympic Realty shall be a blanket non-exclusive, perpetual right and casement for the benefit of Cumberland Partners, as the owner of the Kman Parcel, Its successors, mortgagees, employcos, tenants and customers of tenants for pedestrian and vehicular Ingress and egress upon and across the walks and driveways (e)(eluding parking) of the Capital Products Parcel having a Beginning of Access Easament as shown on the Site Plan. The maintenance responsibilities of Olympic shall be within the First Cross Easement and Second Cross Easement as further described os Olympic's Maintenance Obligation Area on the Sim plan. 4. The eight (8) acre parcel sa referenced in Recital H of the Agreement has been reduced to rive and 661100ths (5.66) acres and described In Exhibit A-4 and located on the Site Plan as Lots 2 and 3 respectively. 5. The First Cross Easement located on the Site Plan 6. The Second Cress Easement and located on the Site Plate 7. Option Parcel, Tract 1 referred to as Exhibit F and Option Parcel, Tract 2 referred to out Exhibit G are consolidated as a three (3) acre tract described as Exhibit F and located on the Site Plate as Lot 3 8. Option Parcel, Tract 3 formerly described as Exhibit H is now n two and 661100ths (2.66) acre parcel, described as Exhibit O and located on the Site Plan as Lot 2. n:4xathim.f 8009 528 PACE 5?.l) . ExHIH1T A LEGAL DF_SGRip'I' 6 All theme certain two tracts or parcels of land situated in IlOmPdan Townaltlp, Cumberland Cewfty, Psnnsylvnnia, bounded and described as follows: Tract No. 1 Beginning at a point on the southern right-of* way lino of the Carlisle Plka (U.S. Route 1}, S.R. 0011) said point being located on the western right-ot-way, line of an unnamed and unopened fifty foot (501) mtreat, thence from said point of Beginning, by said western right-ot-way line South two degrees twenty five minutes twenty two seconds West (B 02.25' 22" W) a distance of four hundred twenty seven and eighty tour one hundredth feet (427.841) to a point on the northern right-of-way line of an unnamed and unopened fifty, foot ((50') straat; thence by said northern right-of-way North 61xty five degreea thirteen minutes and zero seconds West (N 63' 13- 00-1 A) a distance of one hundred twenty two ¦nd fifty one hundredths feet (122.509) to a point; thence by land now or late of MOB Enterprises inc. North twenty six degrees six minutes twenty second= East (N 269 06' 20" B) a distance of fifty and ninety three one hundredths feet (50.931) to a point; thence by the same North two degrees thirty two minutes zero seconds East (N 02' 22' 00" B) a distance ot.two hundred seventy six and thirteen one hundredths feet (376.13') to a point on the southern right-ot way line of the Carlisle Pike; thence by the southern right-of way line. of the Carlisle Pike, by a curve to the loft, having a radius of eleven thousand five hundred nine and nineteen one hundredth feet (R= 11,509.19"), an are length of ono hundred one and four ono hundrodth tact (A/L= 101.040) to a point, the place of Beginning. Sa44 tract contains 40711.41 square feet or 0.9254 acres. Tract No. 2 Beginning at a point on the southern right-of way line of the Carlisle Pike (U.S. Route 11, S.R. 0011) "aid point beinq located on the eastern right-of-way line of an unnamed and unopened fifty toot (501) street, thence from said point of Beginning, by said southern right-of way line of the Carlisle Pike, by a curve to the left, having a radius of eleven thousand five hundred nine and nineteen One hundredth feet (R= 11,509.191), an arc length of twenty eight and seventy three one hundredth teat (A/Lo 28.72 6) to a point; thence by the same South sixty throe degrees fifty eight minutes nineteen seconds East (H 630 ae' 19" B) a distance of seven hundred ninety two and fifty two one hundredth feat (792.32') to a point; thence by lend now or Into of Cumberland Partners South twenty six degrees three minutes thirty four seconds Want CO 261 03' 34" R) a distance of nine hundred eighty tour and sixty six one hundredth fact (964.661) to a point to a pointy thence by the same South savant yy four degrees mix minutes forty necends East (e 74' 06- 40" E) a distance of Ono thousand seven and. thirty four one hundredth feet (1,007.341) to a concrete monument; thence by land now or late of Twigg Family Trust South zero degrees six minutes 000r 526 PACE 57,t thirty four seconds West (a 00^ 06' 34" W) a distance of three hundred twenty six and fifty three one hundredth feat (326.339) to an iron pipe on the line of land now or late of the United States of Amorica (Defence Distribution Region East) ; thence by land now or late of the United States of America (Defence Distribution ',. Regeie new ones Westh(N 75' os' 5301 WQea Gist ncee of one thousand itwoo hundred six and mighty one one hundredth feet (1.206.3di) to a, concrete monumant; thence by the same'North seventy five degrees zero minutes and forty seven seconds West (N 75• b0' 47" W) n - distance of one twenty nine and fifteen one hundredth fast (20.i5') to a re-bar) thence by the Same South two degrees thirty. nine minutes twenty three seconds West (s 02. 39' 23•' W) a distance of toga hunrmd to forty six tnine h new eight eighty46 ) byh than same N North eight degrees throe minutes and fifteen seconds West (N 08' 03' 15" W) a distance of five hundred twenty eight and seventy nine one hundredth feet (329.79') to a concrete monument; thence by land now or late of Dauphin Distribution North, eighty seven degrees fifty nine minutes and eighteen seconds West (N 07' 39''10" p) a distance of two hundred sixty six and six one hundredth fast (266.061) to a concrete monument] thence by land now, or 'late of overnite Transportation Company North twenty five degrees fift three minutes thirty three seconds East (H 25. 53''d3'• E) a dismanee of ?. eight hundred fifty seven and twenty five one hundredths feet (857.25') to a point; thence by the same North sixty five degrees thirteen minutes and zero seconds Wast (M 65. 13' 00" W) a distance of seventy three and forty three one hundredths feet (73.43•) to a poin6•j thence by the some North twenty five degrees fifty three t minutes thirty three seconds East (N 25a s3' 23" E) a distance of ! four hundred ninety nine and seventy seven one hundredths feet 1 (49v.77') to a point on the southern right-of-way .line of an unnamed and unopened fifty foot (501) street; thence by said l southern right-of-way South sixty five degrees thirteen minutes and zero seconds East (e 65' 13' 00" E) a distancg of one hundred sixty four and eighty three hundredths feat (164.941) to a point; thence by the eastern right-of-way line of an unnamed and unopened fifty foot (50') street North twenty four degrees forty seven minutes zero seconds East (H 24. 47' 00" E) a distance of sixty nine and fifty seven one hundredths feet (69.570) to a point; thence by the same North two degrees twenty five minutes twenty two sacapda East (N o2••2s• 2a" E) a distance of four hundred five and twelve one hundredths feet (403.33') to a point on the southern right-of way line of the Carlisle Pike, the place- of Beginning. Said tract contains 36.6618 acres. oaoK 526 race 522 EXHIBIT B LEGAL DESCRIPTION FOR K-MART PARCEL JANUARY S, 1995 All that certain parcel or tract of land situate in Hampden Townehip, Cumberland County, Pennsylvania, as recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania, in Deed Book "29+, Volume "N", page 960, more particularly bounded and described as follows to Brits BEGINNING at a point on the southern right-of-way line of the Carlisle Pike (U.S. Route 11) said point lying i,ele feet east of the intersection of the eastern right-of-way line of Wingate Drive with the southern right-of-way line of the Carlisle pike (U.S. Route 11); Then along the southern right-of-way line of the Carlisle Pike (U. S. Route 11) South 64 degrees 41 minutes 45 seconds East 370.00 feet to a point; Then South 25 degrees 18 minutes 15 seconds Went 218.10 feet to•a point; Then South 64 degrees 41 minutes 45 seconds East' 334.98 fast to a point, Than South 00 degrees 38 minutes 15 seconds Eaet 655.00 feet to a point; Then North 74 degrees 52 minutes 00 seconds Went 1007.34 feet to a point; Then North.25 degrees 18 minutes 15 seconds East 985.01 feet to a point, THE PLACE OF BEGINNING, B00K 526 PACE 523 u o© '.r I..rrr o e 0 Q_ I r rew/ or iMr! a1'er•r IMM' _•Yr.ri Yyrwr y.r Ewhlblt C .*ii- Capital Pradutta Corporation 51w Plan Namodon Tornah4p. Cumberland Co. BOOK $2Ci PAGE 521 Capitol Products Corporation, a Pennsylvania b•!siness cotpotaUon, as the legal holder of the Capitol products parcel located in Hampden Towmhip, Cumb title Pennsylvania, more putieularly dmetibed erland County, Development Corp., in Exhibit A-1 attached hereto, Olympic Realty 6t a New York corporation, and H.C. Holdings Limited Partnership, a Pennsylvania limited partnanhip, hereby acknowledge that each of Diemhaseadan reviewed the Cross Easements and Options Agreement and hereby consent torthe recdording of (i) the Declarations or Reciprocal Easements and Resrrietiohs for We First Cross Easement and Second Cross Easements; and (2) Memorandum of the cross Basements and Options Agreement, and that such instruments shall constitute easements running with the land described In Exhibit A-1 attached hereto, in Accordance with the terms and conditions contained therein. It is the Intention of the parties hereto that subsequent to the recording of the above-referenced instruments, a declaration of condominium of Hampden Commons Condominium shall be recorded, which declaration shall reserve unto the declarant or its successors or assigns, 61aj drht to WII draw Lot 2" and t a• the Prellmtn -?- .respectively as shown on ary/Final Subdivision and Land Development Plan of Hampden Commons, dated October 19, 1995 and recorded in the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 72, page 50 , rom the condominium I. rder to cony v the same to urnberland Partn=a, or its successors or assigns If Cumberland P areners, or its successors or assigns exercises its option to purchase such Iand. Notwithstanding the foregoing, said Instruments shalt be binding on Capitol Produces corporation solely for the purpose of subjecting the property described in Exhibit A-1 attached hereto to said Instruments, Capitol Products Corporation assumes no other obligations of Olympic Realty contained in said instruments. CAPITOL PRODUCTS CORPORATION -- By: Its: 101, BOOK 526 PACE 5;>.5 JLtx. 3.1996 at 2SPM .TOSEPH W rRytioR. PA NO.ae9 P,7eq OLYMPIC REALTY fit DCVFLOPN,=N7 CO". Dated: By: Its: H.C. HOLDINGS Lugm P"rN3PjI-2p 13 Y Dated: Its: r COMMONWEAL77-ZOFPENNSYL-Vmgm Vtno -i-•.. COUNiy OF (any /.j„/ _ C/ On this, the 9 day of 1996, baron a Not ? -' ery Public, the undersigned officer, pcrsonally appeared ^- e., O_ 1 J J[ who acknowledged himselDheraelfto be the of Capitol Products Corporation, The foregoing corporation, and that he/she a such A, v being authorized to do so, executed the foregoing Joinder for the purpose. /16.reiA coniafned by signing the name of the corporation by Wmsolf/barselfas L /"/I?w??? _?-^ IN WITNESS V,'HEREOF, I have hereunto set my hand and official a.ei. My Commission Expires: ?, j// 1 mr- goon 526' PdCC PG Jlai. S. 1998 a-E6PM SoSEPM N GRYMOR. PA M. sag P. eia ConJnlcn/wEN<TH oF' /eG? Zyej"q' JIA C COUNCYOF Z?rIC: /?'/v /-ti On this, the •d? ff dayq of? 1996, before aNotary Public, the undersigned officer, personally appeared :G?SiJ.1?_ .$'•./i o ,.• •- ?+ who acknowledged hhasalf/heraeifto bathe _ ?i1re ,'e%r„ of Olympic Realty Lt Development Corp., the foregoing eorporatioq and that he/she as such ?-,rs; err• , ) , being authorized to do so, executed the foregoing Joinder for the purposes therein contained by sli a?inj? the name of rh6 corporation by bimselIIbetaelfas - ?iws.: ?..•„ f IN WITNESS WkMREOF, I have hereunto set my My Commission Expires: CO'.VIMONWFALTH OF P77VNSY?LYANIA COUNTYOF 7DVL,/1P11/V On dlfs, the- 27" day of 1996, before a Notary Public, the undersigned officer, pmonallynnappearod / o•t - uv who aelmowled¢¢Ced h mselffharee}it- tobethc h-?er?i""'IFtl-.Mlv, IS...,.., er•tau.? o•I , •c.?,..174?. r- ,ter yfi H.C, Holdings Limited Partnership, the tlorogoing partnership, and that he/abed such - rs.,/.n f being authorized to do so, executed the foregoing Joinder for the pWoscs therein contained by signing the name of the corporation by himself1mraelf as IN WITNESS WHEREOF, I have hereunto set my h., and official seal. ?,?J'i•^f1ySy?, f rlj ?`-i Notary ubile Y .. My Commission Expires: , }ar•'t? ' yypp` rd" r 0EataAl ?eMphi avGygr ?,? m?Uee?40. WUnea mV???? PsuTOrrbnlyeiMrr t?INO natal BOOK 52S PACE 52'7 MaimixT A-1 L)+? )l 4rn ?.IQLY All those certain two trao ten or percale er la ed situated in d scribTewnehipp, Cumberland county, Panneylvanie, bounded ¦nd scribed w follower Beginning at a Treat No. i Carlisle Pike (U.S. Route Inthe southern r1 ht-of way line of the on the western right-of-way } S. A. 0011) read point being located toot 1) street Y .{in• of an unnamed and unopened fifty western 0right-of-Way aline South said depra•s of twenty nfivo minutes twenty two seconds West- (0 oa• aa- a7-- W a dlatancs of four hundred twenty seven and eighty tour one hundredth root (427.840) to a point on the northern right-of-way lino of an unnamed ¦nd unopened sixty five degrees thlra oneminut amm and zerohseconds West-(N 63•e12h hundredths =Qet anon of one hundred twenty two and fifty ens MGS Enterprises Ine.. North otwa?tiyn mix hdegrees sixdminut s t enty saconds East (N as• 06- 2010 a) a dlotanGa of fifty and ninety three ,no hundredths toot (59.931) to ¦ point) thence by the mama North two degrees thirty two minuto¦ afro seconds Rant (N oa• as- Don a) a distance ot.two hundred seventy aim and thirteen one hundredths Carliale6 pike)) th anewl bt on the ¦eu th am right-ot way line of thhp?te Carlisle pike, by a curve toe theuleft,c having right-of radius l of eleven thousand five hundred nine and nineteen one hundredth feet (ice 3.1 vcv.ig?),et an arc length of one hundred one and four one said tract contains 260311.41) squareptewt,orhp,D754cea area Beginning. Treat No. a CarliBeginning at a point on the southern right-of way line of the (U.S. Route 11 ¦.A. 0011) said point being located on the eastern right-of-way fine of an unnamed and unopened fifty tre southern-sight of wayh line of from the Carlisle point pike, by n a curve to the left, having a radium of eleven thousand five hundred nine and twentyeight and noovnty throe (Re ne hundredth 11,509.191), an (A/LC sae 2k) to a points thence by the name South sixty throe degrees fifty eight minutes nineteen seconds East (8 624 ¦o, 13-- E) a distance or seven hundred ninety two and fifty two ono hundredth teat (792.32•) to a olntl thence by land now or late of Cumberland Partners South twenty six degrees throe minute¦ thirty four saconds West (S 26. 03- 36-- W) a distance of nine hundred mighty tour and Sixty six one hundredth teat (966.660) to a point to a pointl thence by the game South seventy four degrees aim minutes forty seconds East (S 76. 06- 6o-- a) a distance of one thousand saven and. thirty four and hundredth teat (1,007.291) to a concrete monumentl thence by land now or In to of Twigg Family Trust South zero degrees six minutes 000K 526 mr.. 528 thirty four seconds West (a 0o" as. 34'• W) a dlstenca of three hundred twenty Six and fifty three one hundredth fact (326.531) to an iron pipe on the line of land now or late of the United states of America (Defence Distribution Region East)) thence by land now or late of the United States of America (Defence Distribution Region East) North seventy five dagreas nine minutes and fifty three seconds West (N 75. 09'•53" W) a distance of one thousand two hundred six and eighty one one hundredth test (1,206.994) tO a• concrete monumant; thence by the sama'North seventy five degrees zero minutes and forty maven seconds Went (H 76" bo• 47" W) a distance of one twenty nine and fifteen one hundredth feet (29.15•) to a re-bar; thence by the same South two degrees thirty nine minutes twenty three seconds West (s 02. 391 23'• W) a distance or one hundred forty six and ninety eight one hundredth feet (146.981) to a concrete' monument; thence by the some North eighty eight degrees three minutes and fifteen seconds West (N 88" 02. 15•' W) a distance of five hundred twenty eight and seventy nine one hundredth rant (x28.790) to a concrete monument; Chance by land now or late of Dauphin Distribution North•sighty seven degrees fatty nine minutes and eighteen seconds West (N 876 501'18" 1P) a distance of two hundred sixty six and six one hundredth teat (266.060) to a concrete monument; thence by land now or 'late of ovsrnlta Transportation company North twenty fiva degrees fifty three minutes thirty three seconds Eabt (H 250 53•'23•• E) a distance of eight hundred fifty seven and twenty five one hundredths feet (657.2S') to a point) thence by the same North sixty five degrees thirteen minutes and zero seconds West (H 69" 139 006' W) a distance of seventy three and forty three one hundredths feet (72.421) to a point; thence by the came North twenty five degrees fifty three minutes thirty three seconds East (N 25" 530 33" E) a distance of four hundred ninety nine and seventy seven one hundredths feet (499.771) to a point on the southern right-of-way line. of an unnamed and unopened fifty toot (SO-) street) thence by said southern right-of-way south sixty five degrees thirteen minutes and zero seconds East (e 650 130 001• E) a distance of one hundred sixty four and eighty three hundredths feet (164.898) to a point; thence by the eastern right-of-way line of an unnamed and unopened fifty foot (501) street North twenty four degrees forty maven minutes zero seconds East (N 24. 47• e'0'• E) a distance of sixty nine and fifty seven one hundredths feet (69.570) to a point; thence by the same North two degrees twenty five minutes twenty two seconds East (H 024-250 22•• E) a distance of four hundred five and twelve one hundredths feet (405.12•) to a point on the southern right-of way line of the Carlisle pike, the place -of Eeginning. Said tract contains 36.5618 acres. -••nn of Ponncylvenia I SS •mly of Cumberland .: sod Jr, Thu office for chic recording of Deese 'to acid fur Cumberland County, Pa. .0.142- C00F"3b_ Vol.- Pa6k:Zrv a.•av my hand a9?seal of officq?of? C :.' i V,; la, PA this ?. T? day of _C)sC;Z_ ! 9?]16 800,0 526 PACE 5P.9 R LAW w ca OF WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP OFFICE COURT AT WALTON POINT CHARu11 FDTASK 484 MORRISTOWN ROAD - SUITE 100 DAVID M. JOROAN FA" F. MOLER MASON"RIO" BLUE BELL. PA 18422-2326 NNE-1 N1 ANDREW O. DAN,OR LEONARD A. TALONS MWKAELJ.0O DDHUE (610) 626-8400 SN11.1110E MIDRAELJ. CUIMEW WIUJALI L. LVNDSSURO FAN (610) 626-4887 OF COUNSEL JAMES J. OARRITY RAYMOND FGRLQINE alOFFREY L. SGUCMAYF•• CASEIN W. CRAID IDDQI H A. "0011 n s M. aANRITY JDSSFN M. RADLIIV June 28 1999 WWM AVI%M. JR. , F ••µJMI LODAIER AMY F. DE SHONO WARD GTON• OOAND "DAM F. MALONE V11gNI1 RAR HlNNCTH 0. SFANa 111 swl eN M. RAE WICK D. KRIS OFDO MARK A. HOSTERMAN MARIA II=R00r aISSDNS JUSTIN M. O'DONODNUE MMOMBT J. FAKE-TUFANO MIOIUW NIAIIIS KICHUNE Mr. David Schwartz Olympic Realty and Development Corporation 415 East 52nd Street 47th Floor, Suite AC New York, New York 10022 Ronald M. Lucas, Esquire Eckert Seamans Cherin & Mellott, LLC P. O. Box 1248 Harrisburg, PA 17108-1248 Re: Cumberland Partners /Olympic Realty and Development Corporation/K-Mart - Agreement to Provide For Cross Easements and Options Dated 12/21/95 Dear Messrs. Schwartz and Lucas: I am writing this letter on behalf of Cumberland Partners, a Pennsylvania limited partnership, pursuant to the Agreement to Provide For Cross Easements and options dated the 21st day of December, 1995, by and among Olympic Realty and Development Corporation, Cumberland Partners and K-Mart Corporation (the "Agreement"). The Agreement was the subject of a Memorandum dated the 16th day of October, 1995, effective as of December 31, 1995, by and among Olympic Realty & Development Corp., a/k/a Olympic Realty & Development Corporation; Cumberland Partners and K-Mart (the Memorandum of Agreement). Cumberland Partners hereby exercises its right of option as set forth in the Agreement. Pursuant to the Agreement, Cumberland Partners is hereby delivering written notice to Olympic Realty of Cumberland Partners' intent to exercise its option to purchase what was defined as Tract 3 in the Agreement but is now known as Lot 2 as defined in the Memorandum of Agreement. Pursuant to the Agreement, Cumberland Partners hereby gives Olympic Realty thirty (30) days prior written notice of its right to exercise its option to purchase Lot 2. EXHIBIT "C" WISLER, PEARLSTIME, TALONE, CRAIG, GARRITY & POTASH, LLP Page 2 June 28, 1999 Cumberland Partners is obtaining an updated title insurance binder. Pursuant to paragraph 7(c) of the Agreement, Cumberland Partners hereby gives notice that its employees and agents shall access Lot 2 in order to perform such reasonable tests and studies, if any, as are required in Cumberland Partners, sole discretion. Cumberland Partners hereby agrees to indemnify and hold harmless Olympic Realty from any damages or injuries which may result from the actions of Cumberland Partners, their employees or agents in connection with such tests and studies. Cumberland Partners shall pay $50,000.00 an acre or a total of $133,000 for 2.66 acres comprising Lot 2. Settlement shall be held in the offices of Lawyers Title Insurance Company, Two Penn Center Plaza Building, Philadelphia, PA on or before the 22nd day of October, 1999 at 10 a.m. We will advise you as of the exact date of settlement and will enclose the proposed closing documents at that time. Sincerely our-s, i AEL J. CLEMENT MJC:cbg cc: Cumberland Partners, Attention Mr. Phillip C. Giovinco Exhibit D ECKERT SEAMANS CHERIN & MELLOTT, LLC July 7, 1999 213 Marker Sirea Certified Mail liigadr F/oor liarrishrrn, M 17101 Return Receipt Requested Address nmMJilamdessm to: Nosy QQife this 1249 Hnrrislnrn, NA 17109.1249 Cumberland Partners 'rdeldrm e: 717?726WO Attn: Phillip C. Giovinco Facsimile: 717.2.17.6019 c/o Brandywine Group P. O. Box 500 Chadds Ford, PA 19317 l?(Illlfblln N,r:burnt, Michael J. Clement, Esquire Wisler Pearlstine Talone Craig Garrity & Potash, LLP 484 Norristown Road, Suite 100 F oa Liuderdah. Blue Bell, PA 19422 1'liilndrtld'i" Re: Cumberland Partners - Olympic Realty and Development Corp. 1lixmmamr, n7 Hampden Commons Cross Easement and Option Agreement Ithibblirnm, D.C. Dear Messrs. Giovinco and Clement: We received your letter of June 28, 1999, addressed to Mr. David Schwartz and myself. As I stated in my letter of April 20, 1999, to Mr. Clement, a copy of which is enclosed, Olympic Realty has determined, in its sole discretion, that the remaining property is needed by Olympic Realty for the development of the shopping center. Therefore, there is no land left to sell to Cumberland Partners. Please call me if you have any questions. Very yours, i Ronald M. Lucas RML: dnk Enclosure c: Joseph W. Gaynor (Via Certified Mail) David J. Schwartz (Via Facsimile 212-753-8937) Ronald M. Lucas EXHIBIT °D° ECKL•IL9' SIiAMANS 717.237.6026 - enonrvirsuuw 185037.1 rmI@csc171.coui Exhibit E MAY. 4.1998 511" JOSEPH W GAYNOR, PA NO.884--P.2,15 Par/oF /0-20 -194'o MADE the j; day of hundred and ninety-six (1996) BETWEEN in the Year of our Lord one thousand nine H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, GRAN'T'OR AND CUMBERLAND PARTNERS, a Pennsylvania limited partnership, GRANTEE, 3VITNESSEM that in consideration of Ten and NO1100 ($10.00) DOLLARS, in hand paid, the receipt whereof is hereby acknowledged; the said Grantor does hereby grant and comrey to the said Grantee, Its successors and assigns, the following described property to-wit: ALL THAT CERTAIN tract of land situate in Hampden Township, Cumberland County, Pennsylvania, being Lot 3 as shown on a Plan entitled Preliminary/Final Subdivision & Land Development Plan for Hampden Commons dated October 19, 1995, last revised May 24, 1996, and recorded in Plan Book 72, page 50, Cumberland County records, more particularly bounded and described as follows, to wit; BEGINNING at a concrete monument at the southeast corner of lands now or formerly of Cumberland Partners; thence along lands now or formerly of Twigg Family Trust, South 00 dcgrees 06 minutes 34 seconds West, 311.02 feet to a point on the northern right-of-way line of a bicycle path and pedesuian walkway, also known as Lot 41 now or formerly of Capitol Products Corporation; thence along the northern right-of-way line of Lot 4, now or formerly of Capitol Products Corporation, North 75 degrees 09 minutes 53 seconds West, 499.84 feet to a point; thence along the dividing line between Lot 3 and Lot 2, North 26 degrees 03 minutes 34 seconds East, 313.42 feet to a point; thence along lands now or formerly of Cumberland Partners, South 74 degrees 06 minutes 40 seconds Fast, 359.84 feet to a concrete monument, the place of BEGINNING. CONTAINING 3.0000 acres, BEING PART OF THE SAME premises which were granted and eonvey44 unto Capitol Produce Corporation, a Pennsylvania corporation, by Deed Book I-23, Page 267, Deed Book A-30, Page 136, Deed Book K-22, Page 17, Deed Book C-20, Page 72, and Deed Book M-25, Page M. and ]one[, Inc„ a Pennsylvania corporation, by Deed Book H-15, Page 543, Deed Book N-16, Page 7D-6? /?d cy5/y3 - 93/ IMBIT " E" on„n ., nMrl, P. MOLER PECOLPOIR OF DEEDS T? 3[IS 1 rl",ri1J1TY - PA 196 1w 8 t1? I ._ ............ ...,.MVaiuva nu or-in ani oR_On-mu MAY. 4,1998 5t13PM JOSEPH W GAYNOR, PA 'NO.884-P.3i5 ti. 565, and Deed Book R-15, Page 212, The said Jonel, Inc., together with El Jon Metals Co., Charmador Corporation, Motor Lease, Inc., and Capitol Products Corporation, all being corporations organlmd and existing under the laws of the Commonwealth of Pennsylvania In compliance with the requirements o^ Article IX of the Act of the General Assembly of the Commonwealth of Pennsylvania known as the Business Corporation Law" approved May 5, 1933, as amended, filed Articles of Merger with the Department of State of the Commonwealth of Pennsylvania dated October 15, 1955, and recorded in said office of the Department of State in Corporation Bureau recacds Ralf 3-1-55.29, Films 727 to 794 inclusive, and pursuant thereto the Department of State, on October 19, 1955, Issued a Certificate of Merger evidencing the merger of said eotporatfons Into and with said Capitol Products Corporation, the surviving corporation; said Certificate of Merger being recordcd in the office of said Department of State in Corporation Bureau records Roll 3-1-55.29, Film 735. And pursuant to said Articlos of Merger and the said Business Corporation Law of the Commonwealth of Pennsylvania, the tract of land herein conveyed became vested in the said Capitol Products Corporation, the surviving corporation, without further act or deed, Grantor herein. BY Declaration of Condominium ("Declaration"), recorded in Miscellaneous Book -62(O Page, Capitol Products Corporation and Olympic Realty & Development Corp., as Joint Declarants. created the Hampden Commons Condominium ("Condominium`). Under the Plats and Plans for the Condominium and the peclaration, Ion 3 is shown as withdrawable real estate, By Assignment of Declarant Rights, Capitol Products Corporation and OIympic Realty & Development Corp, assigned Choir Joint Declarant rights to H.C, Holdings Limited Partnership, as Successor beclarant, as rernrded 1n?4vtisallaneous gook ?ai?, Page j53 . By an Amendment to Withdraw Real Estate, H. C. Holdings Limited Parotership, as sole Successor Declarant, has amended the Declaration and withdrawn Lot 3 as recorded in MIscellaneaus Book5?(a Page ?Q, AND The said Grantor Will Specially WARRANT AND FOREVER DEFEND the property hereby conveyed. IN WITNESS WHEREOF, the Grantor has caused this Deed to be signed by its General Partner, Brondle Boulevard Corporation, on the day and year first above written. ATTEST: (Asst.) Secre y H.C. HOLDINGS LWMDMT14ERSW By: Drondle Boulevard Corporadon, a Pennsylvania corporation, era) Partner ay: (Vacs) esident fC 4 .. ................ ?n„ ..... ..... nn, mvu,• , -nn u, n.n ntn nn no, in -nt nn nn IUT I MAY. •4.1998 St 14Pt1 JOSEPH W CAYNOR, PR NO.eU-P.4/5 -' -•-• STATE OF COUNTY Of? On this, the jfy da of Public, the onsets( y A.D. 1996, before me, a Notary gins officer, pcrsonaily a peared ??buHrf? who acknowledged himself tat *W} to be the f Wcv) president of BRONDLE noTILEVARD CORPORATION, the foregoing corporation, General PartnerofH.C. Holdings Limped Partnership, and that as such, he/alter being authorized by such corporation to do so, executed the foregoing Deed for the propose therein contained by signing his/hat-name thereon as such. IN WITNESS WIEREOF, I hereunto set my hand and official seal. -anv,? (SEAL) OT Y PUBLIC My Commission Expires: *%? EiMR I HEREBY CERTNT, that the preetSO address of the Grantee is: P. c" 130x 5ce'- Cl??.dds ?r-oC ?';1 19.3/7 Attorney Or Agent for Grantee --- .. ? ? .n.. ..... n.n mrtnnnu, , miymi umn m no. In ?nl oc_rn_mi Exhibit F 11i II 1 I • 'P. 01 ' i ' r , LECLARATION OP, IDAia1!!€NT ? , This Do4aration of tworwat made this 8th ; r day of • Odtober'r 1969 by M MI, ASSOCIATSB* a 1Joint - Ventura consiaulig of 11WRICH A860AiATaar a general partnerahip and PSTRA b, 1,EV= (hefainaftor callod i "DOOlarant"), ' MAW, Acalakant is the owner of two aontiguou parcelo of real proporty, Situated ih the ' I 'town vl Hampden, Cumberland t6ntyr State of Ponnayivh his; described aq foll•owrr i ' 1 I "DA1tODt Au ' t 9gginning At a point on tholaoutherly riryht at way 1A11a of carliale pike (V, S. PAPto ll} eai,4 point Peeing X148. £tet eactoriy from the intereoatlou of the easterly aide of Wingate Drive with the said southerly right of way line of Carlisle Pike (v, p, Route 11)) thenoe along the southekly right of way line of Carlisle Pike IV, Si Route 11) South GO 41' d" East 370 feet to a point) thence south 250 181, 1611 ' j -West 718,10 foot to a pointr tha&aa South 640 ) 41' 43" Eaet 56 foot to a point) thenoa south 250, i 18' 15" West 57 feet'to A point) thence Bouth 6.10 f .411 4511'Etab' 208 foot t'o a point) thanca south 25° 16' 15" Wasi 203 9410 to a paint) thanoe south G116 411 4511 Bait 45 last to a point) thence. Basil 230' 180 lSIh wait 909.07 iost'to a pointr thanoe Nogth, y7f 74 521 90 Neat 699,04 foot'to a pointr hhahoe North 258010, 151' East 985 feet ho the paint or ' plage of bagibhing, i' 1 1? F lox 187 ptS(''758 i EXHIBIT 616 V FEJ3 18 '93 18:06 717,9759835 PRGE.003 I' I ! i ' •I 1 ., , ,i , 7 f 'f i I 1 I ....... ..,,_ ,..,,?. rnn „v, 1is4rCLgd 1 P; U3 P. ax rARCwz Dy 1 ALa37v INU at' a PoinE on the •eouthorly 1 right-o£-way line of Carlisle ilk, (U, A, Rout¦ 1l), said Xiat being 16io feet caatvrly fron the lntexeaction of the I easterly aide or wingate Drive with the sold southerly right-of-way line of Carlisle Pike (U. S. gouts LL)t TnPmcn Douth 850 18 15" West 132653 fast t0 Pointl rHENCH Morth 980 . 47' LS" Host 83.68 feet to a pointy THZXCA North 890 181 16" r4et 1333,10 Peet to a Points bXKC11 Reath 640 41' 454 East, along the southerly, AopthaoWj 3330gfeeE ltbaepo{nt or, plave 05 AAd2tRtANG. I NtfERFAR, Ds0lArant has improved Puroel A by aonai rooting thereon a 0015ping Centex known as K-Ay1Rr PIANA alHt?iPINO CENTER, and WHEREAS, D4014ront owns additional landa LoCdCeG ,tQ th0 P6oth of and abutting said weei A, aeoess to which iu by the right«of-way'deei9nated herein rr i>orael 8, DAM additioba; lands hiving All area oR appxoainAtbly eight cares, and being a portion of tho '27.425 arias acquixod from Richard M. Cohon and Onan Cohen, his wiser and Peter lavlno and Janet R, ! ,Lovtha, his wife, by aged dated lept*pber 301 1960 gild rooorded Ootobor 28, 1968 in Dved Aook'"E" Avluma 22, P694 356 In the offiog of the Recorder of Deade of ' CuM01and County, Penncylvania, and ' WRMEAVt by mason of reetriotions imposed by the Departmeht of Highways of the Commonwealth of Pcnriaylvanls,, in Order to gain access for tho purposes I of ingraAS oe n9resa to And tram Parcel 8 it to nooaee0ry to uti;lye the entrancoway located on Parcol A leading to and from Carl 1e PAR (u, s. Route 11), and 6ooK ? % rA3 760 -2- , ''A.'/C,Gi1C.u^MiI,V'E}i'N•T1Yi?'7?????rt1'??N4?.fF1."'J.1.?`fA?hWYNti?......._._.___... ? ! , , ! , i 1 I ! ' 1 l? ? MIY.WX i FEB•18 '93 18:05 7179759835 PRGE.00E .I 1?1` r, Vq ' ea Ira I , I w84W& bsolargnt desize9 that khe Qaaamoht ' ' Created and aatablished h"ain on Deroel A chal lbe a 1 1 1 CoYghant to run w1th the Sand and Oha1j ,(puxm to the 1 benefit of Paronl D BHd PCelataAt'. additiopal lends ' 10dAtod to tha deukh of and abutting ?arcel At and be blAd4nq upon tha DePiartnt+ its suc6oxaor3 and Aesignc.? , VON, TMPPFORA,`beoldrant, ea of jar Of FdReei i !or ihaalr and j,tC 44ooe:vopa ehd ?aaigna dlciarde I 1 I'' oa •. ,{P11OW91 It Declarant dada horaby aa4abliah and ! orexta and j dPaB hereby ytv81 Qkenk and Convey to each W every j f ."Mont firm or coryovakivn harehlter owning parcel ?. ONd/or aeolaront?o ddditiOhal lands located to thO ou f s th, 0P and abpkking Parc*1 A, or any Po;tion of cithor theroalf 1 (' d nonexeluaiva saarmsnl, 14msee Vight and privilege o4 1 I pns6e94 and use ,both pedestrian and vehicular for the ' I ' Purpcae 02 UQUIi, and egroey to a did pxraal a and i I t I, voclarant'a additional 1,4140 lPeatod to the south of arid. J? j abutting Paroel At4nto, upon ahd ovor that portion o! 1 1 parcoi A now Qsaighdtcd, got ncide and rxs.rved by the , {I b¦al.rxnt 44 th4 antraneewaY to P„raal At d m.tae and t ? I r` 'bounds deurlption of anCh ,e2ltran00WaY bei ng ea fa2lowae; I N -'- , ±? i i ! , ' 8008 ?, 87 PACE 7$? ! I 06 li I FE8 IS '93 18:07 717y759835 PAGE.004 '"...-PA TRICIA .BLACK ABSTRACT FAX NO. 7i 73372248 P, .04 1 ? ? ?Yi r.n r•wr .rr prrh •1 urvw. y.?., Ylx?l.r..r.r .n \«.n1 •. r 1 •.I.MVw\Mr« ? 1 1 i ? I I i uIF? Beginning at a point on the southern i 1 f right Of way lino of the Carlials Rika k ' (t1, 8, Rte #11) 1 44id point being a distance of 1648,S foot o atilt of %b e If r I let:xecatton '! i i i i I? i !f, i 1 1 I e? J f ' {I if i yy1' , , I? t 1 o eh0 Car2iala pika and Wingate Driest thanca along said right of Way line 8 040 411 45" a a diet+noa r Of 199.0 feat to a Point) thanaa through Fareel A the following four Oourcea and diatandes 6 250 181 150 N a diataaae of 5.72 feat to a pointy thence on a curve to the left having a radiv¦ of 96.0 filet an Kra long th of 11500 feat to a paint; thanaa 8 25a 18' 15" W A dlatae)cc of 185.21 ' feat t4•a points thence N 640 411 45" W A distaaaa of 168.0 foot to tho masterly line Of Parcel St thence along the dividing Will batwedn Parcel A and Parcel 8 N 250 161 151, 2 a d;atanmo of 50#0 feat to a point) thdn00 again through portal A the following four 0ouraaq and diCtancoo 8 640 41' 45" A A 8istanco of 89.0 fact to a pointt thence N 250 181 1511 e a distanoo of 135;21 fact to a points thanaa on a dueve to tl%a loft having a radiuo of 90.0 fact an are 106901 ' ` of 10?,00 feat to a pointy thenca N' 250 161 16" S e distopea of 10.69 foot to a paint on the southern right of May lino Of the Carlisle pike, the place of beginning, The eaaoment, 21cenaa, right aid yrlvi.age , eatabliohed, ore M and granted horoby ahall bo for 1 the UnQUI; of and rcatrietad aoleiy to the owner or owners aA the Me nay bar of too simple•titlo, from time to time of Perool $1 and/or Doolarant's additional lands IoOatea to the south of and abutting Paxaal A, but anY QWA8C nay grant the'bonafit of each oAkecmant, licenaa, r1gh t rind privilega to the tonants of Allah owner nor or hereafter occupying parcel a and/or Daclarantla additionux! 1lendal locatod to the south of and abutting Paroml A, or any part of cithor thoroof, for the duration of ouch tendnoy \and to the Cu2tomora, employcaa, agents; public inviteca \M •x Lain " FEB 18 '93 18:0' 6003 181"mom "/(ip. I t y??lT w\y i xKl^?i..I•LI•w•?•?«?•w?•.x•?n?.L.x ....• •xrl\'? •1I . I 7179759835 PAGE.005 ' _ u..n D?r6•n noalKhU1, FAX NO, 7)73374[248 m' P.OB I , P, 0 l b I. I r. ji, and 1 1Cene0e8 pf Maid tenante, buh the eeme is not Intended nur shell it be vonetrued as etdatinq any rights'in or tot the benefit of the general public, j " Shd provisions of thin Doolaration'may ba ' it r abrogated, modified, raooindud'or amon4ed in vyhoio or in pert only with the consent of the thu { n owner or : e ownaro, an the cage Ma Y ka, of Parcel R1 tzarcal 'a I? -and DoclarantIs additional lands looated to the south II` I OR and abutting PArc4l A end of each and ovary mortgaged I li I or bonecicia ry ynder any £irat Mortgage covering all or, qny part of Parcel A, PAtCal 8 or Declarant' addl,tionall landa located to the south of and abutting parcel A by ! 'ddo;aretidn in writing oneeutad and ocknowladged by said ' tt 'owner or owners and said first novtgagses or first bunefioiarieo duly recorded in the Wica of the aecorder in and Lox the County in whioh the aforementioned I !{ I parcels A and 8 and Do4lerant'a additional Lands loghtad ' r to the south at and abutting, Parcel A are looatady but j this declaration may not utherwiac be abrogated# nwdifio,'d, redc:}nded or amondod in whola or in part, except an harain+ I „ I after eat forth, ; 11 Anything horeinbefore contained to bha contrary •, I(1.{1 I notwithstanding, at any Limo heraaftan that the Dapart. I , want of aighways of the Commlortwoalth of'Ponnaylvania ' I •'r ' or any successor thoroto,.permita disci adoeas via r 8arcol 9 to and from Carlialo Pike (v.s', F440 11) Chia , oaxoment ohall terminate and Como to An end ao ebd'p ( BOOK 187 PACE 783 I I, I•.y,y,yy?'-" '' ' ' ' ' ' , I { ' , gyp/ Ql1a.G'1!1?f?wl key ? I .N I\II,. V. I• i FEB,le 193 18:08 I ' 7179759835 PAGE.006 . , I? I I i I , , I , f ?I I III j I i I . , i i I 1 t• I I. ( i 1 I I? ! i I I II ii i I , I ,I , I t 1 I i '?•••••?•r? :.,.nvn ntlJldFjlil• FM NO. 7 i 73312246 I PeUZ h ?NIY...•w.w..q N.i. ...t I Vta(? thereafter As is Praatic4bU Ana feasibjo in 14gllt of the reKuir0d oonstrootion, ooMplotion and approval or on ontrenotway t0 Parcel be at oarlfale pike (U,d, ROUta ! At Such tibo herealtor, At the Declarant it not the toe title Owner of both Paraol A and parcel n ' and the ownership Of 9110h parcols is not in the anmv p0rty, then in such oaas the ovedaMrs or aasigne of the Declarant to fee title ownership of Par,%/q A and/or Patccl B, including, but not lbaitod to a firct mortgagoo,' which hblde title to Parcal A or Parcel g, as tho taxa may hat thrqug)i forauloaurs or through Nod takep In lieu Of foxorlosuroi shall GAaro tho coat of ropair and maintenanoa 01 tho hereinbefpre dascribed entranecway (including roadwayat suxbs, n4dawalka, shrubbery and grass) to Parcel A In the manner At followsI the than ! tes title 0%%OV or Parca.t A ehal; asaumo sixty (e0%) Percent of Such cost and the then too title owner pf Parcel a shall assume forty (a09) paroent of such coot, ' i butt however, the then Sew title owner of Parcel A ; Shall repair and laallttaln acid ol,tranocway and shall bo r4imbureod to the extent at forty (407:) percent of the ce4t thereof by the then tan title Owner of PAr6ol p.. oho to . • rmat covenanto, 0001tionn and provlooa ' torero chill inor0 to the bcnsf4t of and shall he btpa- 11 ing upon the Deelarant Ahd its racpaativa auccoadore i' I t•7 -6- I i 607K ?,?'% farE '764 t { , •?.r•Inr.lm?. Y11?M?,ergwNr-?rwn.rrn?.,w.,.•v.-M1•N,w w...u?u wrv r..?.wn-,-n..?? . I ..? , S? FEB 18 193 18:09 ., I 7179759835 PAGE.007 t; f, u Ij teb-lf-y3:lnu i[ iy hA'Ili!Clh C6rJK fl?5'IhAL6 hri1 Nu, rIIJJI'G'L4G' I Ii i II ?I it ! I II , I i ? I i i l ' 1 i 1 ' ti STATAt00p W YOPK d0.t tit On the 6th day of Odtobar•, 1969 before ; ma, .e? . , a Notary Public p of Chu ' state a cw or' or c, obis undoralgncd Wider, derear, personally appearcd R;OHARD Ho OOHEN'and HARVEY slna>:h, known to 00 t0 ba mamber0 01 HARVRICH A860C1hTr•8, Me oo- partnovol ldantidned in the within instrument an ona of the joint VobLuvers, the nad,e.ol which par ucrahip is subsoribad to the within instrument and they savarally, aoknowled9ed to me that the said co•portnership as ona , Of that joint venturare executed tho same for the purpocoo therein contained, and.destred this name might be recorded ac ouon, ;?,•y+?a ?,t0y4 '', IN WiTNued Wnwor, I horeunto set my hand jet , e a?i1 ;Oiab amAi, t,q a, ff r 4,+\y fix pa , It J, 8411M MM 09 NEW YORX ) cs, t COUNTY OF SAN YM) I , I I I ' ! r 1 , ^S; I•, I? I II I1 Wr, uu - on the dth day of 004obor', 1969 boforc ma, JCh 4 6Qhppe9'ep , a Rotary Public of the Itato a! traw Yor0 tha underaiyned ofli,oer, yareonally appeared ppTZR to LZV ME, known to me to ba one of the joint venturers whose nama is oubaeribed to t11e within instrument and ooknow7adged that he axeoutod the eamo for the purposes thoroiil oontainad, and dooired that this pone might be recorded 0a ouch. dh 'c £iciIN WI,iED9 WHERCOP, r hordunto act my hand r,o4 1 1 ?4 r'r) y ,9 t 1V it i tic 11 10-41 4 arlawl MIT v, UNTY Or NEW YORK} ea.' On the 6TC day of October , 1969 bofore me, Achn?y? S•• hp , a Ebtory publ.to oL the state of ii4N fopepleo undcrdtjnod officer, pcrconally appeared JANET R. LEV214E, known to me to he one of the persons whose name is oubaczibed to the within inst•rvment and ackhewledgod that she executed the same for tha purpoeas therein contained, And desired that tho sama might he edoilrecavdod as ouch, ^?° •'. ; O NI, TN WXT11036 WHERPOP, s h*eftnto dot my hand v t"dard ieinl dial, '?4 •. ?0 ,' A?• Jaral 1, {CIW.l:rR pI'q I ?_ ?, ?• •? o d baba° e i lea u,. rY o1.ry?Pollc?b j?rt ?w rme gRY '1 p :o?iac>cn r+° ao-rr. , u• d()QK ?t5 / ?d?? "??7 V dpi°r?n"fd ih rl,:?ry r'aU^ry.. .. Quglll•{•i qi, Hlc?al S??mly _ M1 IA In u... ._ I ;. FEB 18'93 18:10 %79759M PRGE.008 and aaeip a, 1 IN WMEss WMAZOF, HARPrL AO80C2ATL3, a joint i '• vontaro MY MOUted this Aoylaration,by itn joint li is venburord the day ehd year Pirot abovd Written, i' ,; flAR!'rG A560QiATD6?, a ?oiat . ?, V.enturo ovnotetinp of ; LNKVRrCFi A0800rAT69# it genprel Pertnerehip and Pros J,. YJWiM i WVRZCH A$SOC7 TZS ? ahd it i . •,' Fanard. QY,lHF ca. I l PetoY 7r? LIV?riq Janet At Lovin4 r Exhibit G 1 l • II WON 'S'tl _• tllla. titliar? o T Y Y 8 i 7: "o'R e ... ulnoe t1 r. e.t o• . .. .° a lle el le' \lunle 3! e 0 ? 5 \1\111 +IIy ^. t T i m ° a ?c ? 'n 7f \ ? iii i ° W 1 eii ? ? t It C• y e ? N p 1 a, e ? ? ? K Y r11 11 ? \\c Jf I. C ? tlf { !! 11 ?? .} ? 5 .. ' gr r' X 5r a? 4? a a's ? s t ? 4 oL ?'+ c L I'? J N rL:7 :7j LL u.. m -? U UN (U 0 ?a V' 0 CUMBERLAND PARTNERS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. 99-5198 CIVIL OLYMPIC REALTY and CIVIL ACTION - EQUITY DEVELOPMENT CORPORATION: a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., et al, Defendants ORDER OF COURT AND NOW, this Z tS t day of June, 2001, a Rule is issued upon the Plaintiff, Cumberland Partners, and Defendant, Olympic Realty and Development Corporation, to show cause why the relief requested in the within Motion for Protective Order should not be granted. This Rule returnable within twenty (20) days of service. Stephen M. Rae, Esquire For the Plaintiff Mark Bradshaw, Esquire For the Defendants J. Michael Kunsch, Esquire For Circuit City Stores, Inc. :rlm BY THE COURT, CUMBERLAND PARTNERS, Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. OLYMPIC REALTY and DEVELOPMENT CORPORATION &Wa OLYMPIC REALTY & DEVELOPMENT CORP., et al, Defendants AND NOW, this day of NO. 99-5198 CIVIL ACTION - EQUITY ORDER , 2001, upon the Motion of Circuit City Stores, Inc. for a Protective Order Pursuant to Pa. R.Civ.P. 4012, it is hereby ORDERED AND DECREED that the Notice of Deposition issued by Plaintiff on May 11, 2001, and the Subpoena to Attend and Testify directed to Circuit City dated May 8, 2001, are hereby stricken and further discovery from Circuit City is prohibited. BY THE COURT: J. SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Nineteenth Floor Philadelphia, Pennsylvania 19102 (215) 563-9811 ATTORNEY FOR: CIRCUIT CITY STORES, INC. CUMBERLAND PARTNERS, Plaintiff V. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OLYMPIC REALTY and NO. 99-5198 DEVELOPMENT CORPORATION a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., et at, Defendants CIVIL ACTION - EQUITY MOTION OF CIRCUIT CITY STORES, INC. FOR PROTECTIVE ORDER PURSUANT TO PAR IV P 4012 Circuit City Stores, Inc., hereby moves this Court for a Protective Order pursuant to Pa. R.Civ.P. 4012, and avers thereof as follows: 1. Plaintiff, Cumberland Partners, commenced an action against Defendants, Olympic Realty and Development Corporation a/k/a Olympic Realty & Development Corp., H.C. Holdings Limited Partnership and Hampden Commons Condominium Association,' on or about August 25, 1999. 2. Plaintiff, Cumberland Partners, by and through its attorneys, issued a Notice of Deposition on May 11, 2001 for a deposition of "Circuit City," scheduled unilaterally for June 8, 2001. A true and correct copy of said Notice of Deposition is attached hereto, marked as Exhibit "A," and incorporated by reference herein. 'According to the docket, Hampden Commons Condominium Association was dismissed by Stipulation filed on October 27, 1999. 3. The Notice of Deposition issued by Plaintiff seeks to take the deposition "of Circuit City's corporate designee most knowledgeable with the company's negotiations and contractual relationships with Olympic Realty and Development Corporation, H.C. Holdings, limited partnership and Hampden Commons Condominium Association and in particular, any statements or representations made as to the 'withdrawable real estate.' The corporate designee is to bring with him/her any documents pertaining to the aforementioned negotiations and contractual relationships including any statements, representations or references to 'withdrawable real estate."' ,fig Exhibit "A." 4. Although Plaintiff's Notice of Deposition and Subpoena were served on the Circuit City location at 5800 Carlisle Pike, Mechanicsburg, Pennsylvania, Circuit City Stores, Inc. is located at 9950 Mayland Drive, Fifth Floor, Richmond, Virginia 23233. 5. Plaintiff scheduled the depositions to occur in Lemoyne, Pennsylvania. 6. Plaintiff further issued a Subpoena to Attend and Testify directed to Circuit City in furtherance of the Notice of Deposition, seeking "all documents pertaining to the negotiations and contractual relationships including any statements, representations or references to 'withdrawable real estate."' A true and correct copy of said Subpoena is attached hereto, marked as Exhibit "B," and incorporated by reference herein. 7. Following receipt of this Notice and Subpoena, corporate counsel for Circuit City Stores, Inc. contacted Stephen M. Rae, Esquire. 8. Plaintiffs counsel advised corporate counsel for Circuit City Stores, Inc. that the deposition in question will not go forward on June 8, 2001, but will need to be rescheduled for a later date. 9. Protective Orders arc governed by the provisions of Pennsylvania Rule of Civil Procedure 4012, which permits a Court to fashion an Order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden, or expense. 10. Pursuant to Pennsylvania Rule of Civil Procedure 4011, no discovery or !I deposition shall be permitted which is sought in bad faith, would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party or which I would require the making of an unreasonable investigation by the deponent or any party or witness. H. Circuit City Stores, inc. has no information regarding the nature of the claim asserted by Cumberland Partners in this litigation. 12. Pursuant to Rule 4007.1(c), when a party issues a Notice of Deposition for a corporate designee, the party must "describe with reasonable particularity the mattes to be inquired into and the materials to be produced." 13. Plaintiffs Notice of Deposition and Subpoena fail to describe with reasonable particularity the matters to be inquired into and the materials to be produced. 14. Plaintiffs Notice of Deposition provides no definition of the legal term "withdrawable real estate," making it impossible for Circuit City Stores, inc. to understand the nature of the request and designate a rcpresentati ve to testify pursuant to the subject notice. Y as 15. Upon information and belief, all negotiations between Circuit City Stores, Inc. and Hampden Commons Condominium Association/Olympic Realty and Development ti Corporation for the Circuit City store in Mechanicsburg, Pennsylvania was conducted by an attorney on behalf of Circuit City Stores, Inc. and, as such, much of the information sought by Plaintiff is protected by application of the attorney client privilege. 16. Upon information and belief, the information sought by Plaintiff, other than any final document entered into by Circuit City Stores, Inc. for the subject premises, would constitute trade secret or other confidential research, development and commercial information which should be protected by this Courtin accordance with Pa. R.Civ.P.4012(9). WHEREFORE, Circuit City Stores, Inc., respectfully request this Honorable Court enter an Order in the form attached, granting its Motion for Protective Order Pursuant to Rule 4012. SWEENEY & SHEEHAN By.a " tJ-?Michael Kunsch Attorney for Circuit City Stores, Inc. SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Nineteenth Floor Philadelphia, Pennsylvania 19102 (215) 563-9811 CUMBERLAND PARTNERS, Plaintiff V. ATTORNEY FOR: CIRCUIT CITY STORES, INC. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OLYMPIC REALTY and NO. 99-5198 DEVELOPMENT CORPORATION a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., et at, Defendants CIVIL ACTION - EQUITY MEMORANDUM OF LAW 1. FACTS Plaintiff, Cumberland Partners, has commenced an action against certain Defendants , including Olympic Realty and Development Corporation a/k/a Olympic Realty & Development Corp. in this Honorable Court. On May It, 2001, Plaintiff's counsel caused to be issued a Notice of Deposition for a corporate designee of "Circuit City," which was served at the Circuit City store located at 5800 Carlisle Pike, Mechanicsburg, Pennsylvania. That Notice of !j Deposition seeks a designee most knowledgeable with Circuit City's negotiations and contractual relationships with Olympic Realty and Development Corporation, H.C. Holdings, limited partnership and Hampden Commons Condominium Association and, in particular, any r statements or representations made as to "withdrawable real estate." See Exhibit "A." The Notice of Deposition further directs this designee to bring with him/her all documents pertaining to the aforementioned negotiations and contractual relationships, including any statements, representations or references to "withdrawable real estate." In conjunction with the Notice of Deposition, Plaintiff issued a Subpoena to Attend and Testify. $.gg Exhibit "B." Circuit City Stores, Inc. has no information regarding the nature of the subject lawsuit. In addition, there is no definition of "withdrawable real estate" contained within the Notice of Deposition issued by Plaintiff, or in the Subpoena issued by Plaintiff. In addition, the Notice of Deposition would seek to have a designee appear to testify in Pennsylvania, when the corporate offices of Circuit City Stores, Inc. are located in Richmond, Virginia. Finally, upon information and belief, the information sought by Plaintiff would be protected by application of the attorney client privilege, or should be protected by this Court as trade secret or other confidential research, development and commercial information, especially in light of the fact that Circuit City Stores, Inc. is not a party to this litigation. Accordingly, Circuit City Stores, Inc. hereby moves this Court for a Protective Order pursuant to Rule 4012. II. STATEMENT OF THE QUESTION PRESENTED Whether the Notice of Deposition Issued to Circuit City by Plaintiff on May 11, 2001, and the Subpoena to Attend and Participate Issued by Plaintiff on May 8, 2001, should be Prohibited Pursuant to Pa. R.Civ.P. 4012. SUGGESTED ANSWER: Yes III. ARGUMENT The Notice of Deposition issued by Plaintiff is generally governed by Pennsylvania Rule of Civil Procedure 4007.1(e). That Rule requires a party seeking to take the deposition of an unnamed designee of a corporation to "describe with reasonable particularity the matters to be inquired into and the materials to be produced." Notwithstanding that provision, Rule 4011 provides that "no discovery or deposition shall be permitted which (a) is sought in bad faith; (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party; ...(e) would require the making of an unreasonable investigation by the deponent or any party or witness. Furthermore, Rule 4012 provides that "upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make an order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense." Id. S= Stenger v. Lehigh Valley Hosnital Center, 382 Pa. Super. 75, 554 A2d 954 (1989). Whether or not to enter a Protective Order is left to the discretion of the Trial Court. Stenger, 554 A2d at 960. An examination of the aforementioned provisions reveals the deficiency of Plaintiff's Notice of Deposition and Subpoena. First, to the extent Plaintiff's request if decipherable, it is clear that the designee sought would not reside within the Commonwealth of Pennsylvania. As such, it would be unreasonable, oppressive, burdensome and expensive for Circuit City Stores, Inc., which is located in Richmond, Virginia, to produce any such person in Pennsylvania. $gU Dettin eg r v. Fry Communications Inc., 49 D.&C. 3rd 106 (1988). In addition, Plaintiff's Notice of Deposition violates the provisions of Rule 4007.1(e), because it does not describe with reasonable particularity the matters to be inquired into and the matters to be produced. Plaintiff's Notice refers to "withdrawable real estate" without providing a definition of same. Clearly, however, this terms requires a legal definition, and it is oppressive and burdensome for Plaintiffs to shift the burden on making that legal conclusion to Circuit City Stores, Inc, by failing to define the term. As such, the Notice and Subpoena must be stricken for failing to comply with the relevant rules. More troublesome, however, is that fact that, upon information and belief, the testimony sought by Plaintiff, and the documents regarding the Circuit City Stores, Inc. location at 5800 Carlisle Pike, would be known only by the attorney who represented Circuit City Stores, Inc, in that transaction. These matters would be covered by the attorney client privilege, which protects from discovery all confidential professional communications between the attorney and the client. Smith v St Luke' Hospital, 40 Pa. D.&C. 3rd 54, 59 (1984). $g? Shamokin v. Westend National Bank, 22 Pa. D.&C. 3rd 232 (1982). The privilege encompasses and protects from discovery "legal advice given by an attorney in his professional capacity in response to a client inquiry." Sadat. Inc v. DER, 163 Pa. Commw. 29, 641 A.2d 1243, 1245 (1994). The rationale for this privilege is to "assure the client of confidentiality and thereby foster open attorney-client dialogue." M. at 235. In addition, "the burden of showing the communications between attorney and client are not privileged is upon the party alleging that the privilege does not apply." Smith, supra. As such, unless Cumberland Partners can establish that the information sought is not privileged, a Protective Order preventing this discovery must be issued. To the extent Plaintiff was to subsequently issue a proper Notice of Deposition setting forth exactly the matters upon which they seek discovery, Circuit City Stores, Inc. requests this Court to issue a Protective Order pursuant to Rule 4012 prohibiting Plaintiff from inquiring into matters protected by the attorney client privilege. In addition, since the negotiations of a Lease for commercial real estate would necessarily involve trade secrets or other confidential research, development or commercial information pertinent to Circuit City Stores, Inc., Circuit City Stores, Inc. would request this Honorable Court enter a Protective Order pursuant to Rule 4012(9) protecting that information. WHEREFORE, Circuit City Stores, Inc., respectfully request this Honorable Court enter an Order in the form attached, granting its Motion for Protective Order Pursuant to Rule 4012. SWEENEY & SHEEHAN <?1 By: AU Q Y'-' . Michael Kunsch Attorney for Circuit City Stores, Inc. SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Nineteenth Floor Philadelphia, Pennsylvania 19102 (215) 563-9811 CUMBERLAND PARTNERS, Plaintiff V. ATTORNEY FOR: CIRCUIT CITY STORES, INC. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OLYMPIC REALTY and DEVELOPMENT CORPORATION a/k/a N0.99-5198 OLYMPIC REALTY & DEVELOPMENT CORP., et al, Defendants CIVIL ACTION - EQUITY ERTIFICATION OF RV I do hereby certify that service of a true and correct copy of the within Motion of Circuit City Stores, Inc. for a Protective Order Pursuant to Pa. R.Civ.P. 4012 was made on June 6, 2001 upon all counsel of record by United States First Class Mail, postage prepaid. SWEENEY & SHEEHAN By: K.') Michael Kunsch Attorney for Circuit City Stores, Inc. VERIFICATION J. MICHAEL KUNSCH verifies and says that he is an attomey-at-law in the offices ofSWEENEY & SHEEHAN; that he is authorized to make this Verification; and, that the facts set forth in the foregoing MOTION OF CIRCUIT CITY STORES, INC. FOR PROTECTIVE ORDER PURSUANT TO PA. R.CIV.P. 4012 are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 PA. C.S. Section 4904 relating to unsworn falsification to authorities. 2'?.ij " J. Michael Kunsch DATE: JUNE 6, 2001 EXHIBIT "A" M WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP By: Michael J. Clement, Esquire/Stephen M. Rae, Esquire Attorney I. D. No. 20039/65199 484 Norristown Road Attorneys for Plaintiff Blue Bell, PA 19422 Cumberland Partners CUMBERLAND PARTNERS, IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. OLYMPIC REALTY and DEVELOPMENT CORPORATION : a/k/a OLYMPIC REALTY & : No. 99-5198 DEVELOPMENT CORP., et al Defendants CIVIL ACTION -EQUITY NOTICE OF DEPOSITION TO: Circuit City 5800 Carlisle Pike Mechanicsburg, PA 17055 PLEASE TAKE NOTICE that on June 8, 2001, commencing at 9:00 A.M. Plaintiff, by its attorneys, will take the deposition of Circuit City's corporate designee most knowledgeable with the company's negotiations and contractual relationships with Olympic Realty and Development Corporation, H.C. Holdings, limited partnership and Hampden Commons Condominium Association and in particular, any statements or representations made as to "withdrawable real estate." The corporate designee is to bring with him/her any documents pertaining to the aforementioned negotiations and contractual relationships including any statements, representations, or references to "withdrawable real estate, MAY 30 '01 09:49 1 804 527 4186 PAGE.06 The depositions shall take place at the law offices of Johnson, Duffle, Stewart & Weidner, 301 Market Street, Lcmoync, PA upon oral examination pursuant to Pa.R.C iv.P. 4007.1 before a notary public or other officer similarly authorized bylaw to administer oaths. The deposition, if not complctcd on June 8, 2001 will continue thereaRerfrom day to day until completed. WISLER, PEARLSTME, TALONE, CRAIG, GARRITY & POTASH, LLP yk-?? Michael J. Clement Stephen M. Rae Attorneys for Plaintiff Cumberland Partners Dated: CC! Mark Bradshaw, Esquire MAY 30 '01 09 49 1 804 527 4186 PAGE. 03 EXHIBIT "B" ....... _ .?- `_ ...... .?. Ca%PANFlEAL.TH OF PFNNSMVA0 V. COUNTY OF C R439tIAM CRMERLAND PARTNERS, Plaintiff y• File No. 99-5198 Equity _ OLYMPIC REALTY, ET AL., Defendants SUBPOENA TO ATTEND AND TESTIFY T0: §irc.uit Gity SAQO rmrli ale P,], Mechanicsburg, PA 17055 1. You are ordered by the court to come to the law offices of Johnson, Duffie, Stewart a Weidner, 301 Market Street (Specify courtroom or other place) at Lemoyne Cumberland County, Pennsylvania, on Friday, June 8, 2001 at 9:00 o'clock, A• M., to testify on behalf of Plaintiff in regard to th_e_ Mtters set forth on the accompanying Notice of Deposition in the above case, and to remain until excused. 2. And bring with you the following: All documents pertaining to the negotiations and contractual relationships including any statements, representations % references to "withdrawable real estate." _-- -" If you fail to attend or to produce the documents or things required by this subpoena you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Pules o Civil Procedure, including but not limited to costs, attorney fees and inpriscrment. REQUESTED BY A PARTY/A7ToRNEY IN COMPLIANCE WITH Pa.R.C.P. No. 234.2(a): NAME: Stephen M. Rae, Esquire ADDRESS., 484 Norristown Rd., Suite 100 Blue Bell, PA 19422-2326 TELEPHONE: (610) 825-8400 MAY SUPRETIE COURT ID # DATE:- Seal of a Court OFFICIAL NOTE: This form of subpoena shall be used whenever a subpoena is issuable; including hearings in connection with depositions and before arbitrators, masters, cannissioners, etc. in compliance with Pa.R.C.P. No. 234.1. If a subpoena for productior of documents, records or things is desired, c mlete paragraph 2. (Eff. 7/97) MAY 30 '01 09:49 1 RR4 577 41AA Por.P M7 WISLM, YtAKIwS I1NE, IALUN COMMENCE.BANK CRAIG,.GARMY & POTAS OEVON, PENNSYLVAN 3.166060 _ 484 NORRISTOWN ROAD, SUITE IOW 6712 006712 BLUEBELL, PA 19422 PAYTwy_FIVE DOLLA89 ZERO' CENL•S 05/11/01 $25.00 TOTHECIRCOIT. CITY ' OFOER5600 CARLISLB'PIRE ' MECHANICSBURG, PA 17055 An OR, JOM .<. A MG. At 11'006 ? ? 211' 1. ? .,.__.....___..__- '0 3 600 18081: 36 069504 311' MAY 30 '01 09:49 1 604 527 41e6 PAGE.05 r ` l IUIV -l iS lOOlir" CUMBERLAND PARTNERS a Pennsylvania limited partnership 2 Ponds Edge Drive, Chadds Ford, Pennsylvania 19317 Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION a/Wa/ OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, 415 East 52nd Street, 47th Floor Suite AC New York, New York, 10022 and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania Limited partnership, 213 Market Street, 8"' Floor Harrisburg, Pennsylvania 17101 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 Equity CIVIL ACTION - EQUITY DEFENDANTS' ANSWER WITH NEW MATTER AND NOW come Defendants, by and through their counsel, Eckert Seamans Cherin & Mellott, LLC., and make the following Answer with New Matter to Plaintiffs Complaint, stating in support thereof as follows: Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. The averments of paragraph 4 require no response as a result of the Stipulation filed of record on or about October 26, 1999, dismissing Hampden Commons Condominium Association as a Party Defendant hereto. 5. Admitted. 6. Admitted. Denied as stated. The averments of paragraph 7 constitute legal conclusions requiring no responsive pleading, and/or characterize written documents which speak for themselves. The allegations relating to supposed "inducement" of Plaintiff relating to the easements which are the subject hereof are specifically denied to the extent that they allege, or even imply, any inappropriate conduct on the part of Defendant Olympic. 8. Denied as stated. The parties negotiated, ink[ alai for cross easements benefiting both parties. By way of further answer, such easements, although requested by Olympic, were not "required" by Olympic, whether to obtain governmental approvals or otherwise. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Denied as stated. The averments of paragraph 14 seek to characterize a written Agreement, which is attached to the Complaint and speaks for itself. By way of further answer, the Agreement explicitly provides that the "balance of the 8 acre area not needed by Olympic Realty shall mean the remaining property not subject to the options set forth in paragraphs 5(b) and (c) which are determined at the sole discretion of Olvmoic Realty not required for development of the shopping center on the Capital Products parcel and, if developed, would not either (1) increase the development costs, directly or indirectly, of the Capital Products Parcel; or (2) require any municipal approvals (other than subdivision approvals) or variances, however, in no event shall Cumberland Partners be entitled to less than the 3 acre area described in subparagraph (a) above." See Exhibit "A" to Plaintiffs Complaint, 115 (emphasis added). 15. Denied as stated. It is admitted that Plaintiff purchased three acres of the Capital Products Parcel as described in part of paragraph H of the Agreement. The remaining averments of paragraph 15 are denied. To the contrary, Plaintiff has purported to exercise its option, but Defendants have appropriately refused to recognize said purported exercise, inasmuch as Olympic Realty has determined, at its sole discretion, that the real estate is required for development of the shopping center, as explicitly provided in the Agreement at paragraph 5. Furthermore, to the extent the balance of the 8 acre area were developed, said development would either increase the development costs, directly or indirectly of the Capital Products Parcel, or would require municipal approvals or variances. By way of further answer, Cumberland Partners has obtained the 3 acre area described in subparagraph (a) of the Agreement and the parties expressly contemplated therein that Cumberland Partners might obtain nothing more. 16. Denied as stated. The cross-easements constituted only part of the consideration exchanged by the parties. For example, Plaintiff also obtained access to the Hampden Commons development. By way of further answer, Olympic was not required to obtain access from Plaintiff in order to obtain governmental approvals. 17. Admitted. 18. Denied. Defendant incorporates by reference the responsive averments to paragraphs 14 and 15 as though set forth in full herein. 19. Admitted in part and denied in part as stated. The Declaration of Condominum is a recorded legal document, which speaks for itself. The remaining averments of paragraph 19 are denied. To the contrary, Plaintiff incorporates by reference the responsive averments to paragraphs 14 and 15 as though set forth in full herein. 20. Admitted in part and denied in part as stated. The Joinder and Memorandum of Agreement are written instruments, which speak for themselves. The remaining averments of paragraph 20 are denied. To the contrary, Defendants incorporate the responsive averments to paragraphs 14 and 15 as though set forth in full herein. COUNTI PLAINTIFF v. DEFENDANTS SEEKING SPECIFIC PERFORMANCE 21. Plaintiff incorporates by reference paragraphs 1 through 20 as though fully set forth. 22. Admitted in part and denied in part as stated. The averments of paragraph 22 are admitted with the exception that it is specifically denied that the correspondence properly exercised the referenced option. To the contrary, Defendants incorporate by reference the responsive averments set forth in paragraphs 14 and 15 as though set forth in full herein. 23. Admitted. By way of further answer, attorney Lucas' July 7, 1999 correspondence specifically incorporated and attached earlier correspondence of April 20, 1999, from attorney Lucas, which correspondence Plaintiff failed to attach to it's Exhibit "D". A true and correct copy of this April 20, 1999 correspondence is therefore attached hereto and made a part hereof as Exhibit "1". By way of further answer, Olympic's determination was entirely consistent with the text of the Agreement entered into by the parties as set forth in the responsive averments to paragraph 14 herein above. 24. Admitted. By way of further answer, the square footage and even the location set forth on the Exhibit were expressly made "approximate" inasmuch as many details of the planning process remained uncertain as of the negotiation and execution of this document. 25. Denied. Upon information and belief, Plaintiff did not rely upon the warranty set forth in paragraph 3 of the Agreement in determining that it would accept as consideration the options from Olympic described in the Agreement. By way of further answer, any such purported reliance would be manifestly unreasonable in light of the Agreement reached by the parties and quoted in the responsive averments to paragraph 14 hereinabove. To the contrary, the parties expressly understood that Cumberland Partners would be entitled to not less than the 3 acre area described in the Agreement, but very likely nothing more. Moreover, Plaintiff obtained other valuable benefits from Olympic as part of the overall transaction. 26. Denied. Defendants incorporate by reference the responsive averments to paragraphs 14, 15 and 25 as though set forth in full herein. 27. Denied. The averments of paragraph 27 are denied as incomprehensible, inasmuch as Defendants lack knowledge regarding Plaintiffs use of the phrase "substantially in accordance". To the contrary, numerous changes with regard to square footage and location occurred between such time as the warranty set forth in paragraph 3 of the Agreement was made and the construction of the Hampden Commons Shopping Center was completed. By way of further answer, Defendants incorporate the responsive averments set forth in paragraph 29 hereof as though fully set forth herein. 28. Admitted. By way of further answer, Defendants incorporate by reference the responsive averments to paragraph 23 as though set forth in full herein. 29. Denied. The Agreements entered into by the parties do not qualify the extent of development of the shopping center in the manner suggested by Plaintiff. To the contrary, the Agreements explicitly provide that Olympic shall determine, in its "sole discretion" whether the 8 acre area, or any portion thereof, is required for the development of the shopping center. Indeed, this acreage is required by Olympic for "Greenspace" as Plaintiff is well aware. By way of further answer, as set forth in greater detail here and above, the "warranty" was phrased in terms of approximate square footage and approximate location, and Plaintiff could not reasonably rely upon said "warranty" as it now claims to have done. By way of further answer, Plaintiffs articulated concern at the time the Agreement was entered into related chiefly toward the approximate location of Plaintiffs shopping center on the overall parcel, i.e., it was Plaintiffs desire that the shopping center be constructed in such a manner as to promote the greatest possible visibility for Plaintiffs own commercial real estate, whereas Defendant Olympic had initially planned to build in such a manner as would have "screened" Plaintiffs commercial building from view from passers-by driving east on the Carlisle Pike. 30. Denied as stated. The averments of paragraph 30 constitute legal conclusions requiring no responsive pleading. 31. Denied. The averments of paragraph 31 constitute legal conclusions requiring no responsive pleading. By way of further answer, Defendant Olympic had no obligation to permit Plaintiff to exercise the option in light of its determination, in its sole discretion, that the balance of the 8 acre area was needed by Olympic for the development of the shopping center. By way of further answer, other conditions to Plaintiffs ability to exercise its option remain unsatisfied. 32. Admitted, except to the extent that the averments of paragraph 32 imply that Plaintiff has any right to exercise the option under these circumstances. 33. The averments of paragraph 33 require no response in light of the party's October 26, 1999 Stipulation dismissing the Hampden Common Condominium Association as a party to this action. WHEREFORE, Defendants Olympic Realty and Development Corporation and H.C. Holdings Limited Partnership demand judgment in their favor and against Plaintiff. COUNT II Plaintiff v. Defendants - Declaratory Judgment and Specific Performance 34. Plaintiff incorporates by reference paragraphs 1 through 33 as though fully set forth. 35. Denied as stated. The averments of paragraph 35 relate to legal documents which speak for themselves, and Plaintiffs characterization of the same requires no response. 36. Denied as stated. The averments of paragraph 36 relate to legal documents which speak for themselves, and Plaintiffs characterization of the same requires no response. By way of further answer, ingress and egress have been continuously provided by Defendant. 37, Denied as stated. The averments of paragraph 37 relate to legal documents which speak for themselves, and Plaintiffs characterization of the same requires no response. By way of further answer, ingress and egress have been continuously provided by Defendant. 38, Denied as stated. The averments of paragraph 38 relate to legal documents which speak for themselves, and Plaintiffs characterization of the same requires no response. By way of further answer, ingress and egress have been continuously provided to Plaintiff by Defendant. 39. Denied. The averments of paragraph 39 constitute legal conclusions requiring no responsive pleading. WHEREFORE, Defendants Olympic Realty and Development Corporation and H.C. Holdings Limited Partnership demand judgment in their favor and against Plaintiff. NEW NIATTER 40. Plaintiffs Complaint fails to state a claim upon which relief can be granted. 41. Defendants incorporate by reference their responses to the allegations of Plaintiffs Complaint as affirmative defenses. 42. Plaintiffs claims are barred by the doctrines of laches, estoppel, waiver and/or unclean hands. 43. No specific provision of the Agreement or related documents permits Plaintiff to recover as legal fees from either Defendant in this action. 44. The Agreement explicitly provides that the "balance of the 8 acre area not needed by Olympic Realty shall mean the remaining property not subject to the options set forth in paragraphs 5(b) and (c) which are detennined at the sole discretion of Olympic Realty not required for development of the shopping center on the Capital Products parcel and, if developed, would not either (1) increase the development costs, directly or indirectly, of the Capital Products Parcel; or (2) require any municipal approvals (other than subdivision approvals) or variances, however, in no event shall Cumberland Partners be entitled to less than the 3 acre area described in subparagraph (a) above." See Exhibit "A" to Plaintiffs Complaint 15 (emphasis added). 45. Plaintiff purchased three acres from Olympic of the Capital Products Parcel as described in paragraph H of the Agreement. 46. Olympic has determined, in its sole discretion, that the real estate is required for development of the shopping center. 47. Indeed, Olympic does require the balance of the "eight acrd: area". In order to comply with the Hampden Township Zoning Ordinance, maximum lot coverage limitation on impervious coverage, this land is needed for green area to offset the impervious areas of Hampden Commons as well as the stormwater detention facilities. 48. The exercise of Plaintiffs option, if permitted, would require a variance. 49. Plaintiffs counsel has repeatedly acknowledged that Plaintiffs purchase of the balance of the eight acre area would require a variance. 50. Attached hereto as Exhibit "2" is a true and correct copy of correspondence and a draft Agreement forwarded on or about February 19, 1999 to attorney Lucas by Plaintiffs counsel, attorney Jerry Duffle. 51. Attached hereto as Exhibit "3" is a true and correct copy of correspondence forwarded on or about March 15, 1999 to attorney Lucas by Plaintiffs counsel, attorney Jerry Duffle. 52. To the extent the balance of the 8 acre area were developed, said development would either increase the development costs, directly or indirectly of the Capital Products Parcel or require municipal approvals or variances. 53. Defendant Olympic had initially planned to build in such a manner as that the buildings would face west toward the main access from Hampden Commons, would have "screened" Plaintiffs commercial building from view from passers-by driving east on the Carlisle Pike. 54. Plaintiffs articulated concern at the time the Agreement was entered into related chiefly toward the approximate location of Plaintiffs shopping center on the overall parcel, i.e., it was Plaintiffs desire that the shopping center be constructed in such a manner as to promote the greatest possible visibility for Plaintiffs own commercial real estate and so that Plaintiff could benefit from the synergy of five (5) new commercial retailers in the neighboring property. 55. Defendant Olympic has continuously made available ingress and egress to the "3 acre parcel" which is the subject of Plaintiffs Count ll. 56. Ingress and egress to Plaintiffs "3 acre parcel" is by way of a driveway in a location as required by Hampden Township. 57. The location of the driveway is a direct result of the cross-easement Agreement and benefits Plaintiff. 58. Plaintiffs Complaint does not allege any harm from the present location of its ingress and egress to the "3 acre parcel." 59. To the extent the available ingress and egress is not in precisely the location specified in the Declaration of Easement, Plaintiff is not harmed thereby. 60. Plaintiff has available other means of securing ingress and egress to the "3 acre parcel", especially since it abutts Plaintiffs property. DATED: //// f Respectfully submitted, Eckert Seamans Cheri Mellott, LLC. Ronal ucas, squire Supreme Court I.D. #18343 Mark D. Bradshaw, Esquire Supreme Court I.D. #61975 213 Market Street Harrisburg, PA 17108 (717) 237-6000 10 11/01/90, 14:11 FAX 717 237 0018 ESCH HARRISBURG (6013 i YERIPICATION I. David SchwarL,, an officer of both Olympic Realty and Development Corporation and H.C. Holdings Limited Partnership, Defendants herein, do hereby verify that the facts set forth in the foregoing document are true and i correct to the best of my knowledge,, information, and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. l i { l • I i i r r ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Market Street April 20, 1999 Eighth Floor Harrisburg, PA 17101 ' Post 0 fine to: Addreers; correspondence Port Ohre lJox 1 1248 48 V14 Facsimile ('2121753-8937) Hankburg, PA 17108.1148 Telephone: 71723Z6000 Mr. David J. Schwartz Fauitnile: 712137.6019 Olympic Realty & Development Corp. Itnoluetalr.mol 415 East 52nd Street, Suite 17A-C , New York, NY 10022 Harrisburg musb ugh RE. Cumberland Partners-Olympic Realty & Development Corp. Hampden Commons Cross Easement and Option Agreement Boston Fort L nderdale Dear Mr. Schwartz: Philadelphia Please find enclosed the draft response to Attorney Clement's letter of April 6, 1999 with regard to the above-referenced matter. At your convenience 414rrlllallr, nl please review the response and contact me to discuss any changes or thoughts Washington, o.C that you may have concerning the same. Also, please let me know if you would rather have this letter sent to Attorney Clement under Ronald M. Lucas, Esquire's letterhead. I look forward to hearing from you in the near future. Thank you for your anticipated attention, cooperation and patience with regard to this matter. Very truly yours, Thomas L. Isenberg, Jr. 7ZUslr enclosure cc: Ronald M. Lucas, Esquire (wlenclosure) ERT SEAMANS Thomas L. Isenberg, Jr. ATTORNEY, AT LAW 717.237.6069 179959.1 nl®escm.cort C ECKERT SEAMANS CHERIN & 213 Market Stmei Eighth Floor Harrisburg, PA 17101 April 20, 1999 Addrus mrmspondmre to: Post Ofm Box 1248 Harrisburg, PA 17108-1248 Michael J. Clement , Esquire Wisler, Pearlstine, Talone, Craig Fachmife: Telephone: 7f717.7.23237.7.606019 00 aal Garrity & Potash, LLP uvnseton.mnr 484 Norristown Road Suite 100 Harrisburg Blue Bell, PA 19422 Pittsburgh Bolton Re: Ounberland Partners - Olympic Realty and Development Corp. Hampden Commons Cross Easement and O tion A r t Fort IeuderAnlr p g eemen Philadelphia Dear Mr. Clement: Westmont, NJ Washirlgtoln, o.C Please allow this to serve as Olympic Realty and Development Corporation's ("Olympic Realty") response to your letter of April 6, 1999, with regard to the above referenced matter. Obviously, our interpretation of the Cross Easement and Option Agreement ("Agreement") effective December 21, 1995 is contrary to that as expressed in your correspondence concerning the same. Furthermore, our client is not inclined to accept the provisions and conditions as outlined in the Proposed Agreement of February 19, 1999, sent by Jerry Duffle, Esquire. Although the original Agreement between the parties does generally grant Cumberland Partners an option to purchase the "balance of the eight acre area not needed by Olympic Realty," the same is not an absolute right to acquire the property. In fact, the Agreement itself contemplates the future development of the area, and the possibility that Cumberland Partners would not be entitled to acquire the area in question. (See, Paragraph 5, p.4, "... in no event shall Cumberland Partners be entitled to less that the three acre area described in subparagraph (a) above.") Moreover, the Agreement expressly provides that the balance of the eight acre area in dispute is to be determined "at the sole discretion of Olympic Realty not required for development of the shopping center on the Capitol Products Parcel." See, Paragraph 5(b), p. 4) Our client has determined that the area ECKERT SEAMANS Thomas L. Isenberg, Jr. •I,OR"rYS Al LAW 717.237.6069 di®escm.com W> €- 11 ate :. L MlChaelJ. Clement, Esquire in question is, in fact, required under the circumstances herein as a "green April 20, 1999 Page 2 area." Therefore, 01YmPis Realty is not in a position to convey the land in Page i question. Furthermore, despite your assertions otherwise, there is no language in the Agreement which would prohibit any future development of the area if Olympic Realty were so inclined. Finally, please note that although your reservation of specific performance and rescission rights is duly noted, we believe that the prior Township condemnation of one of the easement road ways clearly prohibits any rescission claim you feel may be appropriate under the circumstances. Although we are not willing to accept the terms and conditions of the February 19, 1999 proposal, we are more than willing to discuss the possibility of resolving this present dispute in an amicable and cost efficient manner. Please feel free to contact me at your convenience to discuss the same in greater detail. Thank you for your anticipated attention to this matter. Very truly yours, Thomas L. Isenberg, Jr. ECKERT SEAMANC Thomas L. Isenberg, Jr. 717.237.61169 •rtoRNErs AT uw tli®escm.wm JERRY R. DUFFIE RICHARD W. STEWART C. ROY WEIDNER JR. EDMUND G. MYERS DAVID W. DELUCE RALPH H. WRIGHT, JR. DAVID J. LANZA JOSEPH L HITCHINGS MARK C. DUFFIE KEIRSTEN WALSH DAVIDSON MICHAEL 1. CASSIDY Ronald M. Lucas, Esquire Eckert, Seamans, Cherin & Mellott, LLC 213 Market Street Harrisburg, PA 17101 TELEPHONE 717.761.4540 FACSIMILE 717.761.3015 EMAIL mall®ld'w.com February 19, 1999 HORACE A JOHNSON OF COUNSEL Re: Proposed Agreement-Olympic Realty and Development Corporation/ Cumberland Partners Dear Ron: I am enclosing herewith a draft of a proposed Agreement between Olympic Realty and of the Development Corporation and Cumberland Partners pertaining to real estate located at the rear K-Mart Tract, Hampden Township. I would appreciate it if you would review the Agreement and provide me with your comments. I would also appreciate it if you would forward a copy of the proposed Agreement to Mr. Schwartz. I will be returning to the office on March 8". 1 would appreciate it if you would either provide written comments or give me a call shortly after March 81h so we can review the proposed Agreement. Very truly yours, JRD:mam:120344 Enclosure cc: Philip C. Giovinco, Vice President Cumberland Partners Michael J. Clement, Esquire f? LAW OFFICES JOHNSON, DUFFIE, STEWART & WEIDNER A Professional Corporation 301 MARKET STREET P. O. BOX 109 LEMOYNE, PENNSYLVANIA 17043.0109 WEBSITE: www.idsw.com R JO ON, DUFF STEWART & WEIDNER R. R. D JERRY R. DUFFIE RICHARD W. STEWART C. ROY WEIDNER IR. EDMUND G. MYERS DAVID W. DELUGE RALPH H. WRIGHT, JR. DAVID J. L1NZA JOSEPH L HrrCHINGS MARK C. DUFFIE KEIRSTEN WALSH DAVIDSON MICHAEL 1. CASSIDY Via Facsimile and Unked nefe.Mai/ Ronald M. Lucas, Esquire Eckert Seamans Cherin & Mellott 213 Market Street Harrisburg, PA 17101 March 15, 1999 Re: Cumberland Partners/Olympic Realty and Development Corp. Dear Ron: MAR 16 19.99 Harrisburg, pA.. This is to confirm our recent telephone conversation concerning the above matter. As I explained to you, Cumberland Partners has now identified and is currently negotiating an option to acquire a substantially larger tract within Hampden Township to transfer to Hampden Township for the purposes of construction of a soccer field or fields. I did receive a copy of Mr. Schwartz's last Memorandum directing you to terminate further activity with respect to the matter. I would suggest that Mr. Schwartz's impression that the term of the Option is 270 days is Inaccurate. The option clearly provides that Cumberland Partners will purchase Lot 1 and Lot 2 within 45 days after the favorable variances have been obtained. In addition, Mr. Schwartz apparently objected to the provision in the Option which provides that Olympic Realty and Development Corp. would pay legal expenses incurred in connection with obtaining the requisite variances. I believe the issue of payment of legal fees can be resolved. It was my recommendation that since Hampden Township had made significant concessions to Olympic Realty and Development Corp. In connection with the shopping center project that it would increase the likelihood of obtaining the requisite variances if you handled the matter directly. . Hopefully, Mr. Schwartz will reconsider and we can continue to pursue this matter. If Mr. Schwartz has other objections to the proposed Option, we can certainly review those and exert reasonable efforts to resolve any other specific issues. I would appreciate if you would contact Mr. Schwartz and see If there is anyway to resolve these Issues so that the transaction can be completed for the benefit of both Cumberland Partners and Olympic Realty and Development Corp. I await your reply. Very truly yours, JOHNSON, DUFFI STEWART & WEIDNER R. Duff JRD:jd:121054 cc: Phillip C. Giovirico, Cumberland Partn 1 LAW OFFICES JOHNSON, DUFFIE, STEWART A Professional Corporation 301 MARKET STREET P. O. BOX 109 0 F}' WEIDNER HORACE A JOHNSON OF COUNSEL LEMOYNE, PENNSYLVANIA 17043.0109 WEBSITE: www.idsw.com TELEPHONE 717-761-4540 FACSIMILE 717.761.3015 E-MAIL mail®Idtw.com Eckert Seamans Cherin & Mellott CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendants' Answer with New Matter was served on the following counsel of record by deposit in the United States mail, first class postage prepaid, this 2nd day of November 1999. Michael J. Clement, Esquire Office Court at Walton Point 484 Norristown Road Blue Bell, PA 19422 Mark D. Bradshaw, Esquire ? L() Y ?._ l i.ii. _. C. i ... I ` ' ?' •O i; 1 L_ " t' ?_ l! L- ?,. ..? MICHAEL J. CLEMENT, ESQUIRE Attorney I.D. No. 20039 WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road, Suite 100 Blue Bell, Pennsylvania 19422 Attorneys for Plaintiff (610) 825-8400 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania Limited partnership, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 Equity CIVIL ACTION - EQUITY PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER 40. Denied. The allegations set forth in Paragraph 40 of Defendants' New Matter are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 41. Denied. Plaintiff incorporates by reference the allegations in Plaintiffs Complaint. Plaintiff denies Defendants' responses. 42. Denied. The allegations set forth in Paragraph 42 of Defendants' New Matter are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 43. Denied. The allegations set forth in Paragraph 43 of Defendants' New Matter are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 44. Denied as stated. Exhibit "A" to Plaintiffs Complaint is a written document which speaks for itself. Defendants' characterization of same is denied. Strict proof of Defendants' allegations are demanded, at the time of trial, if material. 45. Admitted. 46. Denied. Plaintiff denies that Olympic has the right to determine, in its sole discretion, that the subject real estate is required for development of the shopping center. For all of the reasons set forth in Plaintiffs Complaint, Olympic does not have the right to breach warranties, increase the size of the shopping center in question and otherwise breach the intention of the agreements entered into between the parties. 47. Denied. Plaintiff denies that Olympic requires the balance of the "8 acre area" in order to comply with Hampden Township Zoning Ordinance, maximum lot coverage limitation on impervious coverage... green area to offset the impervious areas of Hampden Commons as well as the stormwater detention facilities." Strict proof thereof is demanded at the time of trial. On the contrary, Plaintiff believes and therefore avers that the balance of the "8 acre area" would be required only in the event of an increase in the area of the Hampden Commons Shopping Center in violation of Olympic's warranty as set forth in Paragraph 3 of the Agreement attached to Plaintiffs Complaint as Exhibit "A". 48. Denied. It is denied that the exercise of Plaintiffs option would require a variance. Plaintiff believes, and therefore avers, that a variance would be required only if Defendants exceeded the building area warranted in Paragraph 3 of the Agreement as aforesaid. 2 49. Denied. On the contrary, Plaintiff believes and therefore avers that no variance is required for Plaintiff to exercise its option to purchase the balance of the "8 acre area." Plaintiffs counsel offered an alternative to settle the matter which would benefit both Plaintiff and Defendants and which would entail the possibility of applying for either of a variance or an interpretation from Hampden Township regarding green space calculations. Defendant Olympic insisted that a variance would be required. Therefore Plaintiffs offer to settle included an application for a variance. 50. It is admitted that a true and correct copy of attorney Duffie's correspondence to attorney Lucas is attached as Exhibit "2". However, that correspondence covered a proposed Agreement in settlement of the dispute between the parties. 51. It is admitted that a true and correct copy of correspondence dated March 15, 1999 from attorney Duffie to attorney Lucas is attached as Exhibit "3". 52. Denied. Defendants' allegations that specific performance will require municipal approvals or variances is denied as a conclusion of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. The remainder of the averments contained in Paragraph 52 are denied since, after a reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truth thereof and Plaintiff demands strict proof, at the time of trial, if material. 53. Denied as stated. After reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief regarding Defendants' intentions concerning the construction of buildings. Such intentions are irrelevant and immaterial in any respect. Plaintiff demands strict proof thereof, at the time of trial, if material. 3 54. Denied as stated. Plaintiff and Defendant Olympic both articulated concerns during negotiation so that their respective developments would be best served. Defendants' allegations set forth in paragraph 54 are immaterial and irrelevant in any event. Plaintiff demands strict proof thereof, at the time of trial, if material. 55. Denied. On the contrary, Defendant Olympic has failed to make available the ingress and egress required by documents of record. 56. Denied. It is denied that Defendants have made ingress and egress available to Plaintiff as required by documents of record. Defendants' allegation that the driveway is in a location required by Hampden Township is a conclusion of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. Alternately, after reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief regarding the truth of the remaining allegations set forth in Paragraph 56 of New Matter and strict proof thereof is demanded, at the time of trial, if material. 57. Denied. The ingress and egress required by documents of ecord has not been made available. 58. Denied. The averments contained in Paragraph 58 of New Matter are conclusions of law to f which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. Further, 11 1 whether or not Plaintiffs Complaint alleges harm from the present location of ingress and egress to the "3 1 acre parcel" is immaterial and irrelevant. Plaintiffs Complaint speaks for itself. The documents of record require an easement the terms of which Defendants breach or are intending to breach. 59. Denied. The averments contained in Paragraph 59 of New Matter are conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. Further, to 4 the extent ingress and egress is not as set forth in the Declaration of Easement is a violation and therefore subject to specific performance. Defendants' interpretation that Plaintiff is not harmed is immaterial and irrelevant. 60. Denied. The averments contained in Paragraph 60 of New Matter are conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. Further, the fact that of ingress and egress is not as specified in the Declaration of Easement is a breach of a recorded document affording Plaintiff the right to specific performance. The fact that Defendants believe there are other means of securing ingress and egress to the "3 acre parcel" is irrelevant and immaterial. WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP BY: Ace Court at Walton Point 484 Norristown Road, Suite 100 Blue Bell, PA 19422 (610) 825-8400 Attorneys for Plaintiff N:\UsmWndy\N1y Uocumenrs\Mjc\Responsc-('umberland.doc 11/30/19999:08 AM-vbw 5 VERIFICATION 1, PHILLIP C. GIOVINCO, authorized representative of Plaintiff, state upon personal knowledge or information and belief that the averments set forth in the foregoing Plaintiffs Reply to Defendants' New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unswom falsification to authorities. CUMBERLAND PARTNERS, a Pennsylvania limited partnership By: BRANDYWINE CORPORATION, a Dela corporation, its general partner f cv? ?- /;/, Z11 PHILLI C. IOVINCO, Vice President Date: /a /5 9 N Tsem\DeenieNy DocumenuUIJC,kcnliaalion-(iiorlneudo, 1211511999 9:49 AM-SIP ?1 ? ` is ' I . .. i .. i.L' _ ? : ? ? , t- C .i_ ?, CUMBERLAND PARTNERS a Pennsylvania limited partnership 2 Ponds Edge Drive, Chadds Ford, Pennsylvania 19317 Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION a/k/a/ OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, 415 East 52nd Street, 47`h Floor Suite AC New York, New York, 10022 and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania Limited partnership, 213 Market Street, 81h Floor Harrisburg, Pennsylvania 17101 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 Equity CIVIL ACTION - EQUITY DEFENDANTS' AMENDED ANSWER WITH NEW MATTER AND NOW come Defendants, by and through their counsel, Eckert Seamans Cherin & Mellott, LLC., and make the following Answer with New Matter to Plaintiffs Complaint, stating in support thereof as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. The averments of paragraph 4 require no response as a result of the Stipulation filed of record on or about October 26, 1999, dismissing Hampden Commons Condominium Association as a Party Defendant hereto. 5. Admitted. 6. Admitted. 7. Denied as stated. The averments of paragraph 7 constitute legal conclusions requiring no responsive pleading, and/or characterize written documents which speak for themselves. The allegations relating to supposed "inducement" of Plaintiff relating to the easements which are the subject hereof are specifically denied to the extent that they allege, or even imply, any inappropriate conduct on the part of Defendant Olympic. 8. Denied as stated. The parties negotiated, inter alia for cross easements benefiting both parties. By way of further answer, such easements, although requested by Olympic, were not "required" by Olympic, whether to obtain governmental approvals or otherwise. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Denied as stated. The averments of paragraph 14 seek to characterize a written Agreement, which is attached to the Complaint and speaks for itself. By way of further answer, the Agreement explicitly provides that the "balance of the 8 acre area not needed by Olympic Realty shall mean the remaining property not subject to the options set forth in paragraphs 5(b) and (c) which are determined at the sole discretion of Olympic Realty not required for development of the shopping center on the Capital Products parcel and, if developed, would not either (1) increase the development costs, directly or indirectly, of the Capital Products Parcel; or (2) require any municipal approvals (other than subdivision approvals) or variances, however, in no event shall Cumberland Partners be entitled to less than the 3 acre area described in subparagraph (a) above." See Exhibit "A" to Plaintiffs Complaint, 115 (emphasis added). 15. Denied as stated. It is admitted that Plaintiff purchased three acres of the Capital Products Parcel as described in part of paragraph H of the Agreement. The remaining averments of paragraph 15 are denied. To the contrary, Plaintiff has purported to exercise its option, but Defendants have appropriately refused to recognize said purported exercise, inasmuch as Olympic Realty has determined, at its sole discretion, that the real estate is required for development of the shopping center, as explicitly provided in the Agreement at paragraph 5. Furthermore, to the extent the balance of the 8 acre area were developed, said development would either increase the development costs, directly or indirectly of the Capital Products Parcel, or would require municipal approvals or variances. By way of further answer, Cumberland Partners has obtained the 3 acre area described in subparagraph (a) of the Agreement and the parties expressly contemplated therein that Cumberland Partners might obtain nothing more. 16. Denied as stated. The cross-easements constituted only part of the consideration exchanged by the parties. For example, Plaintiff also obtained access to the Hampden Commons development. By way of further answer, Olympic was not required to obtain access from Plaintiff in order to obtain governmental approvals. 17. Admitted. 18. Denied. Defendant incorporates by reference the responsive averments to paragraphs 14 and 15 as though set forth in full herein. 19. Admitted in part and denied in part as stated. The Declaration of Condominum is a recorded legal document, which speaks for itself. The remaining averments of paragraph 19 are denied. To the contrary, Plaintiff incorporates by reference the responsive averments to paragraphs 14 and 15 as though set forth in full herein. 20. Admitted in part and denied in part as stated. The Joinder and Memorandum of Agreement are written instruments, which speak for themselves. The remaining averments of paragraph 20 are denied. To the contrary, Defendants incorporate the responsive averments to paragraphs 14 and 15 as though set forth in full herein. COUNTI PLAINTIFF v. DEFENDANTS SEEKING SPECIFIC PERFORMANCE 21. Plaintiff incorporates by reference paragraphs 1 through 20 as though fully set forth. 22. Admitted in part and denied in part as stated. The averments of paragraph 22 are admitted with the exception that it is specifically denied that the correspondence properly exercised the referenced option. To the contrary, Defendants incorporate by reference the responsive averments set forth in paragraphs 14 and 15 as though set forth in full herein. 23. Admitted. By way of further answer, attorney Lucas' July 7, 1999 correspondence specifically incorporated and attached earlier correspondence of April 20, 1999, from attorney Lucas, which correspondence Plaintiff failed to attach to it's Exhibit "D". A true and correct copy of this April 20, 1999 correspondence is therefore attached hereto and made a part hereof as Exhibit "1". By way of further answer, Olympic's determination was entirely consistent with the text of the Agreement entered into by the parties as set forth in the responsive averments to paragraph 14 herein above. 24. Admitted. By way of further answer, the square footage and even the location set forth on the Exhibit were expressly made "approximate" inasmuch as many details of the planning process remained uncertain as of the negotiation and execution of this document. 25. Denied. Upon information and belief, Plaintiff did not rely upon the warranty set forth in paragraph 3 of the Agreement in determining that it would accept as consideration the options from Olympic described in the Agreement. By way of further answer, any such purported reliance would be manifestly unreasonable in light of the Agreement reached by the parties and quoted in the responsive averments to paragraph 14 hereinabove. To the contrary, the parties expressly understood that Cumberland Partners would be entitled to not less than the 3 acre area described in the Agreement, but very likely nothing more. Moreover, Plaintiff obtained other valuable benefits from Olympic as part of the overall transaction. 26. Denied. Defendants incorporate by reference the responsive averments to paragraphs 14, 15 and 25 as though set forth in full herein. 27. Denied. The averments of paragraph 27 are denied as incomprehensible, inasmuch as Defendants lack knowledge regarding Plaintiffs use of the phrase "substantially in accordance". To the contrary, numerous changes with regard to square footage and location occurred between such time as the warranty set forth in paragraph 3 of the Agreement was made and the construction of the Hampden Commons Shopping Center was completed. By way of further answer, Defendants incorporate the responsive averments set forth in paragraph 29 hereof as though fully set forth herein. 28. Admitted. By way of further answer, Defendants incorporate by reference the responsive averments to paragraph 23 as though set forth in full herein. 29. Denied. The Agreements entered into by the parties do not qualify the extent of development of the shopping center in the manner suggested by Plaintiff. To the contrary, the Agreements explicitly provide that Olympic shall determine, in its "sole discretion" whether the 8 acre area, or any portion thereof, is required for the development of the shopping center. Indeed, this acreage is required by Olympic for "Greenspace" as Plaintiff is well aware. By way of further answer, as set forth in greater detail here and above, the "warranty" was phrased in terms of approximate square footage and approximate location, and Plaintiff could not reasonably rely upon said "warranty" as it now claims to have done. By way of further answer, Plaintiffs articulated concern at the time the Agreement was entered into related chiefly toward the approximate location of Plaintiffs shopping center on the overall parcel, i.e., it was Plaintiffs desire that the shopping center be constructed in such a manner as to promote the greatest possible visibility for Plaintiffs own commercial real estate, whereas Defendant Olympic had initially planned to build in such a manner as would have "screened" Plaintiffs commercial building from view from passers-by driving east on the Carlisle Pike. 30. Denied as stated. The averments of paragraph 30 constitute legal conclusions requiring no responsive pleading. 31. Denied. The averments of paragraph 31 constitute legal conclusions requiring no responsive pleading. By way of further answer, Defendant Olympic had no obligation to permit Plaintiff to exercise the option in light of its determination, in its sole discretion, that the balance of the 8 acre area was needed by Olympic for the development of the shopping center. By way of further answer, other conditions to Plaintiffs ability to exercise its option remain unsatisfied. 32. Admitted, except to the extent that the averments of paragraph 32 imply that Plaintiff has any right to exercise the option under these circumstances. 33. The averments of paragraph 33 require no response in light of the party's October 26, 1999 Stipulation dismissing the Hampden Common Condominium Association as a party to this action. WHEREFORE, Defendants Olympic Realty and Development Corporation and H.C. Holdings Limited Partnership demand judgment in their favor and against Plaintiff. COUNT It Plaintiff v. Defendants - Declaratory Judgment and Specific Performance 34. Plaintiff incorporates by reference paragraphs 1 through 33 as though fully set forth. 35. Denied as stated. The averments of paragraph 35 relate to legal documents which speak for themselves, and Plaintiffs characterization of the same requires no response. 36. Denied as stated. The averments of paragraph 36 relate to legal documents which speak for themselves, and Plaintiffs characterization of the same requires no response. By way of further answer, ingress and egress have been continuously provided by Defendant. 37. Denied as stated. The averments of paragraph 37 relate to legal documents which speak for themselves, and Plaintiffs characterization of the same requires no response. By way of further answer, ingress and egress have been continuously provided by Defendant. 38. Denied as stated. The averments of paragraph 38 relate to legal documents which speak for themselves, and Plaintiffs characterization of the same requires no response. By way of further answer, ingress and egress have been continuously provided to Plaintiff by Defendant. 39. Denied. The averments of paragraph 39 constitute legal conclusions requiring no responsive pleading. WHEREFORE, Defendants Olympic Realty and Development Corporation and H.C. Holdings Limited Partnership demand judgment in their favor and against Plaintiff. NEW MATTER 40. Plaintiffs Complaint fails to state a claim upon which relief can be granted. 7 41. Defendants incorporate by reference their responses to the allegations of Plaintiffs Complaint as affirmative defenses. 42. Plaintiffs claims are barred by the doctrines of laches, estoppel, waiver and/or unclean hands. 43. No specific provision of the Agreement or related documents permits Plaintiff to recover as legal fees from either Defendant in this action. 44. The Agreement explicitly provides that the "balance of the 8 acre area not needed by Olympic Realty shall mean the remaining property not subject to the options set forth in paragraphs 5(b) and (c) which are determined at the sole discretion of Olympic Realty not required for development of the shopping center on the Capital Products parcel and, if developed. would not either (1) increase the development costs, directly or indirectly, of the Capital Products Parcel; or (2) require any municipal approvals (other than subdivision approvals) or variances, however, in no event shall Cumberland Partners be entitled to less than the 3 acre area described in subparagraph (a) above." See Exhibit "A" to Plaintiffs Complaint ¶5 (emphasis added). 45. Plaintiff purchased three acres from Olympic of the Capital Products Parcel as described in paragraph H of the Agreement. 46. Olympic has determined, in its sole discretion, that the real estate is required for development of the shopping center. 47. Indeed, Olympic does require the balance of the "eight acre area". In order to comply with the Hampden Township Zoning Ordinance, maximum lot coverage limitation on impervious coverage, this land is needed for green area to offset the impervious areas of Hampden Commons as well as the stormwater detention facilities. 48. The exercise of Plaintiffs option, if permitted, would require a variance. 49. Plaintiff's counsel has repeatedly acknowledged that Plaintiffs purchase of the balance of the eight acre area would require a variance. 50. Attached hereto as Exhibit "2" is a true and correct copy of correspondence and a draft Agreement forwarded on or about February 19, 1999 to attorney Lucas by Plaintiffs counsel, attorney Jerry Duffle. 51. Attached hereto as Exhibit "3" is a true and correct copy of correspondence forwarded on or about March 15, 1999 to attorney Lucas by Plaintiffs counsel, attorney Jerry Duffle. 52. To the extent the balance of the 8 acre area were developed, said development would either increase the development costs, directly or indirectly of the Capital Products Parcel or require municipal approvals or variances. 53. Defendant Olympic had initially planned to build in such a manner as that the buildings would face west toward the main access from Hampden Commons, would have "screened" Plaintiffs commercial building from view from passers-by driving east on the Carlisle Pike. 54. Plaintiffs articulated concern at the time the Agreement was entered into related chiefly toward the approximate location of Plaintiffs shopping center on the overall parcel, i.e., it was Plaintiffs desire that the shopping center be constructed in such a manner as to promote the greatest possible visibility for Plaintiffs own commercial real estate and so that Plaintiff could benefit from the synergy of five (5) new commercial retailers in the neighboring property. 55. Defendant Olympic has continuously made available ingress and egress to the "3 acre parcel" which is the subject of Plaintiffs Count ll. 56. Ingress and egress to Plaintiffs "3 acre parcel" is by way of a driveway in a location as required by Hampden Township. 57. The location of the driveway is a direct result of the cross-easement Agreement and benefits Plaintiff. 58. Plaintiffs Complaint does not allege any harm from the present location of its ingress and egress to the "3 acre parcel." 59. To the extent the available ingress and egress is not in precisely the location specified in the Declaration of Easement, Plaintiff is not harmed thereby. 60. Plaintiff has available other means of securing ingress and egress to the "3 acre parcel", especially since it abutts Plaintiffs property. DATED: (/ Respectfully submitted, Eckert Seamans Cherin & Mellott, LLC Ronald L. Lucas, Esquire Supreme Court I.D. #18343 Mark D. Bradshaw, Esquire Supreme Court I.D. #61975 213 Market Street Harrisburg, PA 17108 (717) 237-6000 10 11/01/99 14:11 FAX 717 237 6019 ESCM HARRISBURG VERIFICATION I. David SchwarL:, an officer of both Olympic Realty and Development Corporation and H.C. Holdings Limited Partnership, Defendants herein, do hereby verify that the facts set forth in the foregoing document are true and i correct to the best of my knowledge,, information, and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. i l J `i k k Ii ,i t f I? f 6 r r•? ®0'1J Y -• 1 i C_ t. 1 d C'. I ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Market Street April 20, 1999 Eighth Floor Harrisburg, PA 17101 Address conespoudenee m: Post Of/sce Box 1248 Michael J. Clement, Esquire Harrisburg, PA 17108.1248 Wisler, Pearlstine, Talone, Craig Telephone: 7172JZ6000 Garrity & Potash, LLP Facsimile: 717237.6019 484 Norristown Road "Resm.com Suite 100 Blue Bell, PA 19422 Harrisburg A'asburgh Re: GYunberland Partners - Olympic Realty and Development Corp, Boston Hampden Commons Cross Easement and Option Agreement Fort Lauderdale Philadelphia Dear Mr. Clement: ivetunonr, NJ Please allow this to serve as Olympic Realty and Development Corporation's washigton, D. C ("Olympic Realty") response to your letter of April 6, 1999, with regard to the above referenced matter. Obviously, our interpretation of the Cross Easement and Option Agreement ("Agreement") effective December 21, 1995 is contrary to that as expressed in your correspondence concerning the same. Furthermore, our client is not inclined to accept the provisions and conditions as outlined in the Proposed Agreement of February 19, 1999, sent by Jerry Duffle, Esquire. Although the original Agreement between the parties does generally grant Cumberland Partners an option to purchase the "balance of the eight acre area not needed by Olympic Realty," the same is not an absolute right to acquire the property. In fact, the Agreement itself contemplates the future development of the area, and the possibility that Cumberland Partners would not be entitled to acquire the area in question. (See, Paragraph 5, p.4, ".., in no event shall Cumberland Partners be entitled to less that the three acre area described in subparagraph (a) above.") Your client is also aware of the fact that Olympic intends to dedicate an area to Hampden Township for a soccer field. Moreover, the Agreement expressly provides that the balance of the eight acre area in dispute is to be determined "at the sole discretion of Olympic Realty ECKE SEAMANS Ronald M. Lucas ?naancrs ?r u" 717.237.6026 rml0escm.com Michael J. Clement, Esquire not required for development of the shopping center on the Capitol Products April 20, 1999 mB Page 2 Parcel" Vie, Paragraph 5(b), p. 4) Our client has determined that the area in question is, in fact, required under the circumstances herein as a "green area." This fact is further supported by the language of the Proposed Agreement wherein it requires variances, permits, approvals, and/or consents from Hampden Township in order to convey the property in question. However, the original Agreement expressly provides that Olympic Realty is under no obligation to obtain any such variances, permits, approvals and the like from Hampden Township. See, Paragraph 5(b), p. 4). Therefore, Olympic Realty is not in a position to convey the land in question. Furthermore, despite your assertions otherwise, there is no language in the Agreement which would prohibit any future development of the area if Olympic Realty were so inclined. Finally, please note that although your reservation of specific performance and rescission rights is duly noted, we believe that the prior Township condemnation of one of the easement road ways clearly prohibits any rescission claim you feel may be appropriate under the circumstances. Although we are not willing to accept the terms and conditions of the February 19, 1999 proposal, we are more than willing to discuss the possibility of resolving this present dispute in an amicable and cost efficient manner. Please feel free to contact me at your convenience to discuss the same in greater detail. Thank you for your anticipated attention to this matter. , ly y urs, Very Ronald M. Lucas RMLIslr cc: David J. Schwartz Jerry D. Duffle, Esquire Thomas L. Isenberg, Jr., Esquire ? ECKERT SEAMANS Ronald Lucas 717.237..66026 ATTORNEYS AT uw rml®escm.cam JERRY R. DUFFIE RICHARD W. STEWART C. ROY WEIDNER JR. EDMUND G. MYERS DAVID W. DELUGE RALPH H. WRIGHT, JR. DAVID 1. LANZA JOSEPH L HIrCHrNGS MARK C. DUFFIE KEIRSTEN WALSH DAVIDSON MICHAEL 1. CASSIDY Ronald M. Lucas, Esquire Eckert, Seamans, Cherin & Mellott, LLC 213 Market Street Harrisburg, PA 17101 TELEPHONE 717-761-4540 FACSIMILE 717.761.3015 E-MAIL maII0jdsw.wm February 19, 1999 HOP-ACE A. JOHNSON OF COIMSEL 1" t;:f ...i'v'tLt +5 '1.? Re: Proposed Agreement-Olympic Realty and Development Corporation/ Cumberland Partners Dear Ron: I am enclosing herewith a draft of a proposed Agreement between Olympic Realty and Development Corporation and Cumberland Partners pertaining to real estate located at the rear of the K-Mart Tract, Hampden Township. I would appreciate it if you would review the Agreement and provide me with your comments. I would also appreciate it if you would forward a copy of the proposed Agreement to Mr. Schwartz. I will be returning to the office on March 8"'. I would appreciate it if you would either provide written comments or give me a call shortly after March 8th so we can review the proposed Agreement. Very truly yours, JRD:mam:120344 Enclosure cc: Philip C. Giovinco, Vice President Cumberland Partners Michael J. Clement, Esquire LAW OFFICES. JOHNSON, DUFFIE, STEWART & WEIDNER A Professional Corporation 301 MARKET STREET P. O. BOX 109 LEMOYNE. PENNSYLVANIA 17043-0109 WEBSiTE: www.jdsw.com R. JO ON, DUF STEWART &WEIDNER R. 010995-0000M.19.99/JRDIMAMA 19016.1 AGREEMENT THIS AGREEMENT ("Agreement"), made this _ day of and between OLYMPIC REALTY AND DEVELOPMENT CORPORATION, a 1999, by New York corporation, hereinafter called "Olympic Realty" and CUMBERLAND PARTNERS, a Pennsylvania limited partnership, hereinafter called "Cumberland Partners." BACKGROUND A. Olympic Realty, together with Capitol Products Corporation, are Declarants pursuant to a Declaration of Hampden Commons Condominium ("Declaration"), recorded July 30, 1996 in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Miscellaneous Book 526, Page 569. B. Capitol Products Corporation is no longer a Declarant pursuant to said Declaration or otherwise. C. The real property which was submitted to the provisions of the Pennsylvania Uniform Condominium Act pursuant to the Declaration consisted of Lot 1 (containing 27.581 acres), being Lot 1, Preliminary/Final Subdivision & Land Development Plan of Hampden Commons, recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Plan Book 72, Page 50. Pursuant to the Declaration and as shown on Hampden Commons Condominium Plats & Plans ("Plats & Plans"), recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, on July 30, 1996, in Right-of-Way Plan Book 11, Page 26, a portion of Lot 1, identified as Lot 1A, is designated as "Withdrawable or Convertible Real Estate" and has an area of 2.0543 acres. D. The above-described Preliminary/Final Subdivision Plan for Hampden Commons also created Lot 2, containing 2.6210 acres, and Lot 3, containing 3.00 acres. E. Pursuant to Agreement to Provide for Cross Easements and Options ("Agreement/Options"), dated December 21, 1995, among Olympic Realty, Cumberland Partners and K-Mart Corporation, Olympic Realty granted an option to Cumberland Partners to purchase Lot 3 (containing 3.00 O 0 010995-0000112.19.991JRDIMA W 119016.1 acres) and Cumberland Partners, pursuant to said option, acquired Lot 3 by deed, dated , 1999, recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book, Page_ F. In addition, pursuant to the Agreement/Options, Olympic Realty granted to Cumberland Partners the right and option to purchase the balance of the eight (8) acre tract (as defined in the Agreement/Options) for the purchase price and under the terms and conditions set forth therein. G. The eight (8) acre tract referred to in the Agreement/Options comprises Lot 3 (containing 3.00 acres), Lot 2 (containing 2.6201 acres) and the balance of the tract (designated on Plats & Plans as Lot 1A and designated as Withdrawable or Convertible Real Estate) containing 2.0543 acres; accordingly, the "eight (8) acre tract" actually consists of 7.6743 acres. H. Cumberland Partners desires to exercise Cumberland Partners' option to purchase the 4.6743 acre tract (Lot 2 and Lot 1A) for the purchase price and under the terms and conditions set forth herein. 1. Cumberland Partners is going to acquire other real estate located within Hampden Township which will be acceptable to Township for the purpose of constructing (by Township) a soccer field and is willing to convey (gift) said real estate to Township. J. Olympic Realty is willing to convey the 4.6743 acre tract (being Lot 2 and Lot 1A) provided: (i) Olympic Realty can obtain a variance that the area of the detention pond [which was constructed after the approval of the Preliminary/Final Subdivision Plan for Hampden Commons] can be used to calculate the coverage requirements of Lot 1, (ii) that if Lot 1A [designated as Withdrawable Real Estate and containing 2.0542 acres] is withdrawn and conveyed to Cumberland Partners, that a variance is granted with respect to the coverage requirement of Lot 1 and (iii) that Cumberland Partners acquire other real estate in Hampden Township and said real estate is conveyed (gifted) to Township. K. If Cumberland Partners shall purchase the 4.6743 acre tract (being Lot 2 and Lot 1A), then, as a condition of the purchase of the entire 4.6743 acre tract, Olympic shall obtain for the benefit of Cumberland Partners a vehicular and pedestrian non-exclusive, general access easement extending across 2 010995-00001 /2.19.99MRD/MAW119016.1 Lot 1 to provide vehicular and pedestrian access to the 4.6743 acre tract and the balance of the K-Mart Tract (containing _ acres), Lot 1A, Lot 2 and Lot 3. L. At the time of settlement with respect to the 4.6743 acre tract, Cumberland Partners agrees to execute and deliver an agreement extinguishing any and all right of Cumberland Partners pursuant to Declaration of Easement, dated October 8, 1969, recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Miscellaneous Book 187, Page 759. M. In the event that Olympic Realty is unable to obtain the variances with respect to the coverage requirements of Lot 1, then, in that event, Cumberland Partners shall have the right to purchase Lot 2 (containing 2.6210 acres) for the purchase price and under the terms and conditions set forth herein. N. Olympic Realty and Cumberland Partners now desire to confirm their understanding in writing. NOW, THEREFORE, the parties hereto, each intending to be legally bound, agree as follows: 1. Background. The background set forth above is incorporated herein. 2. Agreement to Provide for Cross Easements and Options. The Agreement to Provide for Cross Easements and Options, dated December 21, 1995, among Olympic Realty, Cumberland Partners and K-Mart Corporation, is incorporated herein by reference hereinafter called "Agreement/Options." 3. Subject Real Estate. The real estate subject to this Agreement is Lot 2, Preliminary/Final Subdivision Plan of Hampden Commons, recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Plan Book _, Page _. Said Lot 2 contains 2.6201 acres and is hereinafter called "Lot 2." In addition, the real estate subject to this Agreement is a 2.0542 acre tract, being designated as Lot 1A and also designated as Withdrawal or Convertible Real Estate Parcel as described in Article V, Section 5.01 of the Declaration and as described in Exhibit "H" of the Declaration. Said 2.0542 acre tract Is hereinafter called "Lot 1A." 3 010995-00001 /2.19.99/JRD/MAM/119016.1 4. Exercise of Option/Cumberland Partners. Cumberland Partners, by the execution of this Agreement, hereby exercise Cumberland Partners' option to purchase Lot 2 and Lot 1A, subject to the terms and conditions set forth in this Agreement. Olympic Realty acknowledges, by the execution of this Agreement, that Cumberland Partners has exercised its option pursuant to the Agreement/Options to purchase Lot 2 and Lot 1A, subject to the terms and conditions of this Agreement, specifically Including the requirements that Olympic Realty, in accordance with the Declaration, subdivide Lot 1A and withdraw Lot 1A, and the conditions set forth in Paragraph 5 with respect to necessary variances to be obtained by Olympic Realty. If the various conditions of this Agreement are met, then settlement with respect to Lot 2 and Lot 1A shall occur forty-five (45) calendar days after the requisite subdivision plan for Lot 1A is recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania. If Cumberland Partners is unable to purchase Lot 1A, then, in that event, Cumberland Partners shall have the right (not the obligation) to purchase Lot 2. If Cumberland Partners desires to purchase Lot 2, then Cumberland Partners shall settle with respect to Lot 2 within two hundred seventy (270) calendar days from the date of this Agreement at a time, date and place designated by Cumberland Partners. 5. Conditions Precedent/Sale of Lot 1A. Olympic Realty shall, within forty-five (45) calendar days of the date of this Agreement, submit to Hampden Township Zoning Hearing Board ("ZHB") at Olympic Realty's sole cost and expense, applications for variance as follows: A. Coverage Requirement/Stormwater Detention Facilities. The area of the stormwater detention facilities constructed by Olympic Realty after the approval of the Preliminary/Final Subdivision Plan of Hampden Commons, not be excluded from the area of Lot 1, Preliminary/Final Subdivision Plan for Hampden Commons for purposes of calculating the coverage requirements for Lot 1 (excluding Lot 1A). B. Coverage Requirement/Lot 1A. That if the withdrawal of said Lot 1A violates the coverage requirement based on the "as built" condition, that a variance be granted with respect to the coverage requirement. C. Failure to Obtain Variances. If ZHB does not grant both variances, then, in that a. event, Cumberland Partners' right to purchase Lot 1A shall be null and void, but Cumberland 4 010995-00001/2.19.99MR01MAM/119016.1 7) O Partners shall have the right to purchase Lot 2 under the terms and conditions set forth in this Agreement. 6. Access Easement/Lot 1. If the ZHB grants both variances described in Paragraph 5, then as a condition of Cumberland Partners' purchase of Lot 1A, Olympic Realty shall (as Declarant and subject to the approval of the Unit Owners' Association, if required) grant to Cumberland Partners a non- exclusive, general access easement over Lot 1A for vehicular and pedestrian access to Lot 1A and Lot 2 and said non-exclusive, general access easement shall also be for the benefit of Lot 3 and the balance of the K- Mart parcel. Said non-exclusive, general access easement shall be in form and substance acceptable to Cumberland Partners and shall be in recordable form. If the access easement, as described, is not obtained within two hundred seventy (270) calendar days from the date of this Agreement, then, in that event, Cumberland Partners reserves the right, at Cumberland Partners' sole discretion, to waive the condition. Olympic Realty agrees to exert its best efforts to obtain said access easement. 7. Extinguishment of Existing Easement, If Olympic Realty shall convey to Cumberland Partners Lot 1A and if the non-exclusive, general access easement as described in Paragraph 6 is granted to Cumberland Partners, then Cumberland Partners shall, at the time of settlement with respect to Lot 2 and Lot 1A, execute a document in recordable form to extinguish all rights of Cumberland Partners created pursuant to the Declaration of Easement, dated October S, 1969, recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Miscellaneous Book 187, Page 759. 8. Withdrawal/Subdivision-Lot 1A. If both variances described in Paragraph 5 are granted by ZHB, then, in that event, Olympic Realty shall take all actions required by the Declaration to withdraw Lot 1A, including, but not limited to, subdivision of Lot 1A. All costs pertaining to the subdivision shall be paid by Olympic Realty. The costs shall include, but not be limited to, engineering fees, municipal review fees, municipal security, if applicable, recording costs, legal expenses and any other costs directly related to the obtaining of said subdivision. 9. Real Estate/Soccer Field. If Cumberland Partners purchases Lot 1A and Lot 2 pursuant to the terms and conditions of this Agreement, Cumberland Partners shall obtain an option or agreement of sale for real estate located in Hampden Township for the purpose of Township constructing thereon a soccer field. Said real estate shall have an area of not less than three (3) acres and shall be acceptable to Township 5 1010'995.00001/2.19.991JRDIMAW119016.1 / . . . . Q , for the purpose of constructing said soccer field. Township's approval shall be confirmed, in writing. Within fifteen (15) calendar days after Cumberland Partners purchases Lot 1A and Lot 2, Cumberland Partners shall acquire the real estate. After Cumberland Partners has acquired the real estate, Cumberland Partners shall convey said real estate to Hampden Township in consideration of One ($1.00) Dollar. Cumberland Partners shall pay all realty transfer taxes assessed in connection with the conveyance of the real estate to Township. Cumberland Partners shall convey said real estate to Township within fifteen (15) calendar days after the date that said real estate is acquired by Cumberland Partners. 10. Existing Stormwater Detention Facilities/Lot 1. In connection with the future development of the K-Mart parcel, to include, as applicable, Lot 3, Lot 2 and Lot 1A (if owned by Cumberland Partners), Olympic Realty (as Declarant subject to the approval of the Unit Owners' Association, If required) shall grant to Cumberland Partners a non-exclusive right and easement to utilize any excess capacity of said retention/detention basin; provided, however, in the event that such excess capacity is insufficient to provide stormwater management for the K-Mart parcel (to include Lot 3, Lot 2 and Lot 1A), then Cumberland Partners shall be obligated, at Cumberland Partners' sole expense, to enlarge such basin to adequately provide stormwater management for said parcels, provided, further, that any such enlargement of the existing retention/detention basis shall not cause Lot 1 to be deficient with respect to coverage requirements, violate municipal ordinances or regulatory laws, or cause Olympic Realty or any Unit Owner or Unit Owners' Association to incur, directly or indirectly, additional cost. In addition to the foregoing, Cumberland Partners shall have the right, at Cumberland Partners' sole cost and expense and at Cumberland Partners' option, to seek a variance or variances from the ZHB or a waiver or waivers from Township or other relief from any regulatory or ordinance requirement which would permit Cumberland Partners to use the existing retention/detention basin as set forth in this Paragraph 10. 11. Purchase Price. Cumberland Partners shall pay to Olympic Realty for Lot 2 and Lot 1A the aggregate purchase price of One Hundred Thirty-One Thousand Five ($131,005.00) Dollars, which said purchase price shall be paid, in full, by Cumberland Partners to Olympic Realty at the time of settlement as described in Paragraph 4. In the event that Cumberland Partners shall only purchase Lot 2 and not purchase Lot 1A because of the failure of the conditions precedent as set forth in Paragraph 5, then, in that event, If Cumberland Partners agrees to purchase said Lot 2, there shall be no abatement or reduction in the purchase price. Said purchase price shall be paid, in full, at the time of settlement as set forth in Paragraph 5. Cumberland Partners shall pay one-half (1/2) of the applicable realty transfer taxes assessed In connection 6 01099500001 /2.19.99/JRD/MAw119016.10 with the conveyance of Lot 2 and Lot 1A or Lot 2, as applicable. Olympic Realty shall pay one-half (1/2) of the applicable realty transfer taxes assessed in connection with the conveyance of Lot 2 and Lot 1A or Lot 2, as applicable. County, township and school district real estate taxes shall be prorated as of the date of settlement as of the date of settlement based on the calendar or fiscal year of the taxing authority. Olympic Realty shall convey Lot 2 and Lot 1A or Lot 2, as applicable, by special warranty deed. Title to Lot 2 and Lot 1A, or Lot 2, as applicable, wiff be good and marketable title, free and clear of all liens and encumbrances except existing easements and rights-of-way and other encumbrances acceptable to Cumberland Partners and said title shall be insurable by a reputable title insurance company doing business in the Commonwealth of Pennsylvania at regular rates. 12. Cumberland Partners' Right to Cancel Option/Lot 2. As set forth in this Agreement, If Cumberland Partners is unable to purchase Lot 1A because of the failure of the conditions precedent as set forth in Paragraph 5, then, in that event, Cumberland Partners shall have ninety (90) calendar days after the date of the decision of the ZHB to confirm, in writing, to Olympic Realty, that Cumberland Partners desires to proceed with the acquisition of Lot 2 under the terms and conditions set forth in this Agreement. If Cumberland Partners does not provide the requisite notice to Olympic Realty within said ninety (90) calendar day period, then, in that event, Cumberland Partners' right to purchase Lot 2 shall terminate and this Agreement shall be null and void without further liability by either party to the other. In addition, in the event that Olympic Realty shall elect to appeal a negative decision of the ZHB, then, in that event, the notice period set forth in this Paragraph 12 shall be extended for ninety (90) calendar days after a final decision of a court of competent jurisdiction (including, if applicable, an appellate court). 13. Revised Maintenance Obligation/Cross Access Easements. As set forth in Agreement/Options, there are two (2) cross access easements for the benefit of Hampden Commons. Cross Access Easement No. 1 has been dedicated to and accepted by Township as a public street. Notwithstanding that Township has accepted Cross Access Easement No. 1 as a public street, Olympic Realty or Association continues to have the entire maintenance obligation with respect to said street. In addition, pursuant to the Agreement/Options, Olympic Realty or Association has an obligation with respect to maintenance of the access easement designated as Cross Access Easement No. 2. If Cumberland Partners shall acquire Lot 2 and Lot 1A pursuant to the terms and conditions of this Agreement, then Cumberland Partners agrees, effective January 1, 2008, to pay one-half (1/2) of the maintenance obligation with respect to Cross Access Easement No. 1 and Cross Access Easement No. 2. 7 010995-0000112.19.991J RDIMAM/119016.1 14. Paragraph 12-Agreement/Options. Paragraph 12, Agreement/Options, shall be and remain in effect and nothing set forth in this Agreement, or otherwise, shall adversely affect the rights of Cumberland Partners pursuant to said Paragraph 12. 15. Survival. The terms and conditions of this Agreement shall survive settlement with respect to Lot 2 and Lot 1A or Lot 2, as applicable, and shall not merge into the deed conveying said tot or lots to Cumberland Partners. Specifically, but not limited to, the provisions of Paragraph 9, Paragraph 10, Paragraph 12 and Paragraph 17 shall survive and shall not merge Into said deed. 16. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of Cumberland Partners, its general partner, and its general partner's successors and assigns. This Agreement shall be binding upon and shall inure to the benefit of Olympic Realty, its general partner, and its general partner's successors and assigns. 17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. 18. Third Party Beneficiary. Township is a third party beneficiary to this Agreement and, to the extent applicable, shall have enforceable rights pursuant to the terms and conditions of this Agreement. IN WITNESS WHEREOF, the parties hereto, each by their duly authorized officer, have caused this Agreement to be signed and delivered, in duplicate, as of the day and year first above written. Olympic Realty and Development Corporation, By: David J. Schwartz, President Cumberland Partners, a Pennsylvania limited partnership Brandywine Corporation, its General Partner By: Philip C. Giovinco, Vice President 8 ' LAW OFFICES JOHNSON, DUFFIE, 'STEWART & WEIDNER A Professional Corporation JERRY R DUFFIE RICHARD W. STEWART 301 MARKET STREET HORACE A JOHNSON P. O. BOX 109 C. ROY WEIDNER, JR. LEMOYNE, PENNSYLVANIA 17043.0109 OF COUNSEL EDMUND G. MYERS DAVID W. D[LUCE UCE WEBSITE: www.jdsw.com RALPH H. WRIGHT, IR. _ TELEPHONE 717-761.4540 DAVID 1. LANZA JOSEPH L HRCHMGS FACSIMILE 717-761-3015 MARK C. DUFFIE E-MAIL maftidsw.com KEIRSTEN WALSH DAVIDSON Eckert Seamans MICHAEL I. CASSIDY Cherin & Mellott March 15, 1999 Via Facsimile and United States Mail MAR 1 619.99 HarrisbilM pA Ronald M. Lucas, Esquire Eckert Seamans Cherin & Mellott 213 Market Street Harrisburg, PA 17101 Re: Cumberland PartnersiOlympic Realty and Development Corp. Dear Ron: This Is to confirm our recent telephone conversation concerning the above matter. As I explained to you, Cumberland Partners has now identified and is currently negotiating an option to acquire a substantially larger tract within Hampden Township to transfer to Hampden Township for the purposes of construction of a soccer field or fields. I did receive a copy of Mr. Schwartz's last Memorandum directing you to terminate further activity with respect to the matter. I would suggest that Mr. Schwartz's impression that the term of the Option is 270 days is Inaccurate. The option clearly provides that Cumberland Partners will purchase Lot 1 and Lot 2 within 45 days after the favorable variances have been obtained. In addition, Mr. Schwartz apparently objected to the provision in the Option which provides that Olympic Realty and Development Corp. would pay legal expenses incurred in connection with obtaining the requisite variances. I believe the Issue of payment of legal fees can be resolved. It was my recommendation that since Hampden Township had made significant concessions to Olympic Realty and Development Corp. In connection with the shopping center project that It would increase the likelihood of obtaining the requisite variances if you handled the matter directly. . Hopefully, Mr. Schwartz will reconsider and we can continue to pursue this matter. If Mr. Schwartz has other objections to the proposed Option, we can certainly review those and exert reasonable efforts to resolve any other specific issues. I would appreciate if you would contact Mr. Schwartz and see if there is anyway to resolve these Issues so that the transaction can be completed for the benefit of both Cumberland Partners and Olympic Really and Development Corp. 1 await your reply. Very truly yours, JOHNSON, DUFFI STEWART & WEIDNER • r' R: JRD:jd:121054 Ddff cc: Phillip C. Giovinco, Cumberland Penn r . . . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendants' Answer with New Matter was served on the following counsel of record by deposit in the United States mail, first class postage prepaid, this 9th day of November 1999. Michael J. Clement, Esquire Office Court at Walton Point 484 Norristown Road Blue Bell, PA 19422 kN& Mark D. Bradshaw, Esquire Y C V' C: W ell tl. • ? t /L C v V' l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CUMBERLAND PARTNERS, a Pennsylvania limited partnership 2 Ponds Edge Drive Chadds Ford, Pennsylvania, 19317 Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, 415 East 52nd Street, 47th Floor, Suite AC New York, New York 10022 and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, 213 Market Street, 8th Floor Harrisburg, Pennsylvania 17101 and HAMPDEN COMMONS CONDOMINIUM ASSOCIATION, a Pennsylvania non-profit corporation 213 Market Street, 8th Floor Harrisburg, Pennsylvania 17101, Defendants ACT S 9y i No. 99-5198 Equity CIVIL ACTION-EQUITY STIPULATION The parties hereto, by and through their counsel, stipulate that this action is hereby discontinued without prejudice by Plaintiff as against Hampden Commons Condominium Association. The parties further agree that a response to the Complaint, by answer but not preliminary objections, shall be filed by the remaining Defendants, Olympic Realty and Development Corporation and H.C. Holdings Limited Partnership, on or before October 29, 1999. Mark D. Bradshaw, Esquire ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Market Street Harrisburg PA 17101 (717) 237-6000 Attor? e s for Defenda Mid ael l J. Cl ent, Esquire WISLER, P ARLSTINE, TALONG, CRAIG, GARRITY Si; POTASH, LLP Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorney for Plaintiff 190108.1 v c? r cn- 1 r? "-' y; :: v r_ ,..,? 0 9 U CZD 1 s -6 L' ai Lj c? _ en cL ARGUMENT COURT- OCTOBER 11, 2000 BEFORE BAYLEY and OLER #23 Cumberland Partners, a Pennsylvania: IN THE COURT OF COMMON PLEAS OF limited partnership, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 99-5198 CIVIL TERM Olympic Realty and Development Corporation a/k/a Olympic Realty & Development Corp., a New York corporation, and H.C. Holdings Limited Partnership, a Pennsylvania limited partnership, Defendant CIVIL ACTION- LAW Motion: Defendant's Motion for Judgment on the Pleadings Briefs: Defendant's Brief in Support of Defendant's Motion for Judgment on the Pleadings Plaintiff's Brief in Opposition to Defendant's Motion for Judgment on the Pleadings Facts: Plaintiff owns a shopping center adjacent to and directly east of Hamden Commons, which is another shopping center being developed by Defendants. The parties entered into negotiations regarding easements and potential land transfers to facilitate the traffic flow to both shopping centers. The parties entered into an agreement to provide cross-easements and options. Plaintiff filed a Complaint demanding specific performance regarding parts of this agreement. Argument: Plaintiffs Complaint seeks specific performance of a purported right to exercise a certain option to purchase certain acreage, as to which Defendant claims that certain conditions precedent to Plaintiff's ability to exercise said option remain unfulfilled. Plaintiffs Complaint also seeks specific performance with regard to a specific easement permitting passage between the three acre parcel transferred by Defendants to Plaintiff as part of the parties' agreement. Defendant argues that Plaintiff waived, abandoned or should be estopped from enforcing the easement. 9 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants SEP 2 9 2000 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 CIVIL ACTION - EQUITY BRIEF IN SUPPORT OF DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1. BACKGROUND This action was commenced by Complaint filed on or about August 25, 1999. The action relates to the development of a certain shopping center along the Carlisle Pike in Mechanicsburg, Pennsylvania, known as Hampden Commons. The shopping center has several major "anchor" tenants, including The Home Depot, Pet Smart, OfficeMax and Circuit City. Hamden Commons is adjacent to and directly west of Plaintiffs shopping center property, which contains a "Big-K" K-Mart location. Plaintiffs property is also accessed from the Carlisle Pike. As related in Plaintiffs Complaint at paragraph 7, in or about August 1995, Defendant Olympic and Plaintiff began discussing a series of cross-easements and potential land transfers and options to facilitate enhanced traffic flow to both shopping centers. This action concerns certain discrete and specific aspects of the parties' overall transaction. Plaintiffs Complaint is set forth in two counts. In Count 1, Plaintiff seeks specific performance of a purported right to exercise a certain option to purchase certain acreage to the rear and south of, (i.e. behind), the K-Mart parcel. See Complaint and Answer at 114. The particular acreage which is the subject of Count I of Plaintiffs Complaint is defined in the parties' Agreement as the "Balance of the 8 Acre Area", and constitutes approximately 2.6 acres. In simplest terms, Count I of Plaintiffs Complaint constitutes Plaintiffs assertion that it has appropriately exercised an option to purchase these 2.6 acres. Defendants' defense to Count I is, in simplest terms, that certain conditions precedent to Plaintiffs ability to exercise said option remain unfilled, and that therefore the option has never been appropriately or effectively exercised. More specifically, Defendants defend Count I based upon the explicit language of paragraph 5 of the parties' Agreement, itself. The particular language of the Agreement relied upon by Defendants is quoted in full in both paragraph 14 of Defendants' Answer and paragraph 44 of Defendants' New Matter. The Agreement containing this language is already part of the record, having been made Exhibit "A" to Plaintiffs Complaint. See Exhibit "A" at 15. Paragraph 5 of the Agreement provides as follows: "balance of the 8 acre area not needed by Olympic Realty shall mean the remaining property not subject to the options set forth in paragraphs 5(b) and (c) which are determined at the sole discretion of Olympic Realty not required for development of the shopping center on the Capital Products parcel and, if developed, would not either (1) increase the development costs, directly or indirectly, of the Capital Products Parcel; or (2) require any municipal approvals (other than subdivision approvals) or variances, however, in no event shall Cumberland Partners be entitled to less than the 3 acre area described in subparagraph (a) above." 2 See Exhibit "A" to Plaintiffs Complaint, 15 (emphasis added). As this language makes clear, Plaintiff may exercise this option if, and Mly if, Defendant Olympic determines in its sole discretion that the 2.6 acres are not needed for its own development purposes. Although this language is sufficiently clear to end the inquiry, Plaintiffs Complaint also affirmatively pleads that, prior to purporting to exercise its option for the 2.6 acres which is the subject of Count I, Plaintiff was affirmatively notified that Olympic Realty ad determined, in its sole discretion, that the remaining property was needed by Olympic Realty for the development of the shopping center! See Complaint, Exhibit "D". See also Answer and New Matter, Exhibit 1. As a result, Count I cannot succeed, since the pleadings establish not only that conditions precedent to Plaintiffs ability to exercise its option remained unsatisfied at the time Plaintiff purported to exercise said option, but the pleadings also establish that Plaintiff had actual notice that conditions precedent remained unsatisfied at the time it purported to exercise its option. Additionally, the parties' Agreement establishes that there are certain other conditions which must also be satisfied in order that Plaintiff be permitted to exercise its option, such as that any development of the "balance of the 8 acre area" would not, inter ]g_ia, require any municipal approvals or variances. However, the pleadings and exhibits thereto which are already of record in this matter, (including correspondence from Plaintiff's own counsel), demonstrate that variances would be required in order that Plaintiff exercised its option. Thus, the pleadings make it abundantly clear that Plaintiff has not, and may not, appropriately 'Plaintiff's attempt to ignore the plain language of the parties' Agreement is nowhere clearer than in 146 of Plaintiff's Reply to New Matter, wherein Plaintiff contradicts the very terms of the Agreement and flatly asserts that Defendants lack the right to determine, in their sole discretion that the subject real estate is required for the development of the shopping center. Id. 3 exercise the option provided in the parties' Agreement. Consequently, Count I of Plaintiff's Complaint must fail. No discovery or further proceedings are necessary in order to establish Plaintiffs inability to prevail on Count I, and the same should be dismissed with prejudice at this time. Count II of Plaintiffs Complaint seeks declaratory judgment and specific performance with regard to a certain easement purportedly permitting passage between the three (3) acre parcel which was transferred by Defendants to Plaintiff as part of the parties' Agreement and the Carlisle Pike. The circumstances of Plaintiffs acquisition of the three (3) acre parcel (i.e. as part of the parties' "global" Agreement to provide for cross-easements and options) demonstrate that Plaintiffs did not, and could not have, relied upon its ability to make use of this easement, rather than intending to utilize the thoroughfares contemplated under the parties' Agreement. Simply stated, the parties' Agreement to provide cross-easements was entered into for the express purpose of creating the current traffic pattern. The Agreement sets forth driveways and parking in a particular and defined manner. This new traffic pattern then obtained municipal approval. Plaintiff does not, and cannot, allege that it lacks access to its three (3) acre parcel through the existing parking lot and roadway configuration. Indeed, Plaintiffs have benefited tremendously from the parties' Agreement and the resulting municipal approvals, inasmuch as Plaintiff now has far better access than it previously enjoyed to the three (3) acre parcel in question, which access is now over a paved way with stormwater drainage features, etc. rather than over a gravel lane. As a result, Plaintiff is not harmed in any manner by its existing access to the three (3) acre parcel. In fact, Plaintiff, as a sophisticated commercial real estate developer, was well aware of the 4 municipal approvals process through which Defendants urged the Hampden Township Board of Supervisors to approve the existing parking lot and roadway configuration. Having signed the Agreement providing for the current configuration, and having sat by while municipal approvals were obtained for the same, Plaintiffs will not now be heard to insist upon their "rights" to the prior easement. In summary, through its conduct as set forth above, Plaintiff has abandoned, waived, or should be estopped from taking its current position with regard to access to the three (3) acre parcel. II. ISSUES PRESENTED A. SHOULD THE COURT DENY PLAINTIFF'S DEMAND FOR SPECIFIC PERFORMANCE WHERE THE VERY LANGUAGE OF THE PARTIES' AGREEMENT ESTABLISHES THAT PLAINTIFF HAS NO ENTITLEMENT TO RELIEF? B. MAY PLAINTIFF DEMAND SPECIFIC PERFORMANCE RELATING TO THE PRECISE LOCATION OF A CERTAIN EASEMENT WHERE (I) THE PURPOSE OF THE VERY AGREEMENT WHEREBY PLAINTIFF ACQUIRED THE PARCEL BENEFITING FROM SAID EASEMENT WAS TO CREATE SPECIFIC ACCESS WAYS FOR THE BENEFIT OF BOTH PARTIES; (II) PLAINTIFF CLEARLY HAS ACCESS TO THE CARLISLE PIKE AT THE PRESENT TIME; (III) PLAINTIFFS ACCESS TO THE CARLISLE PIKE IS LOCATED WITHIN SEVERAL FEET OF WHERE PLAINTIFF NOW CLAIMS IT SHOULD BE LOCATED, AND, WHERE (IV) PLAINTIFF PERMITTED THE PLANS TO BE SUBMITTED TO AND APPROVED BY MUNICIPAL AUTHORITIES, AND THE ACCESS CONFIGURATION WAS THEREBY CREATED, ALL WITHOUT OBJECTION BY PLAINTIFF? III. ARGUMENT A. Plaintiff's claims for snecific performance are repudiated by the language of the Agreement itself. Specific performance is a discretionary remedy addressed to the Court's exercise of its conscience. Barnes v. McKeller, 434 Pa. Super 597, 644 A.2d 770, app. den. 539 Pa. 663, 5 municipal approvais process through which Defendants urged the Hampden Township Board of Supervisors to approve the existing parking lot and roadway configuration. Having signed the Agreement providing for the current configuration, and having sat by while municipal approvals were obtained for the same, Plaintiffs will not now be heard to insist upon their "rights" to the prior easement. In summary, through its conduct as set forth above, Plaintiff has abandoned, waived, or should be estopped from taking its current position with regard to access to the three (3) acre parcel. H. ISSUES PRESENTED A. SHOULD THE COURT DENY PLAINTIFF'S DEMAND FOR SPECIFIC PERFORMANCE WHERE THE VERY LANGUAGE OF THE PARTIES' AGREEMENT ESTABLISHES THAT PLAINTIFF HAS NO ENTITLEMENT TO RELIEF? B. MAY PLAINTIFF DEMAND SPECIFIC PERFORMANCE RELATING TO THE PRECISE LOCATION OF A CERTAIN EASEMENT WHERE (I) THE PURPOSE OF THE VERY AGREEMENT WHEREBY PLAINTIFF ACQUIRED THE PARCEL BENEFITING FROM SAID EASEMENT WAS TO CREATE SPECIFIC ACCESS WAYS FOR THE BENEFIT OF BOTH PARTIES; (II) PLAINTIFF CLEARLY HAS ACCESS TO THE CARLISLE PIKE AT THE PRESENT TIME; (III) PLAINTIFFS ACCESS TO THE CARLISLE PIKE IS LOCATED WITHIN SEVERAL FEET OF WHERE PLAINTIFF NOW CLAIMS IT SHOULD BE LOCATED, AND, WHERE (IV) PLAINTIFF PERMITTED THE PLANS TO BE SUBMITTED TO AND APPROVED BY MUNICIPAL AUTHORITIES, AND THE ACCESS CONFIGURATION WAS THEREBY CREATED, ALL WITHOUT OBJECTION BY PLAINTIFF? III. ARGUMENT A. Plaintiffs claims for snecific performance are repudiated by the laneuaee of the Agreement itself. Specific performance is a discretionary remedy addressed to the Court's exercise of its conscience. Barnes v. McKeller, 434 Pa. Super 597, 644 A.2d 770, app. den. 539 Pa. 663, 5 652 A.2d 834 (1994). In order to prevail in a request for specific performance, Plaintiff must, at a minimum, demonstrate a clear right to relief. Id. In this case, even a cursory review of the Agreement upon which Plaintiffs claim is purportedly based makes it apparent that Plaintiff has no entitlement to relief whatsoever. The language in the parties' Agreement is abundantly clear: "balance of the 8 acre area not needed by Olympic Realty shall mean the remaining property not subject to the options set forth in paragraphs 5(b) and (c) which are determined at the sole discretion of Olympic Realty not required for development of the shopping center on the Capital Products parcel and, if developed, would not either (1) increase the development costs, directly or indirectly, of the Capital Products Parcel; or (2) require any municipal approvals (other than subdivision approvals) or variances, however, in no event shall Cumberland Partners be entitled to less than the 3 acre area described in subparagraph (a) above." This language could not be clearer: Plaintiff may exercise its option if, and only if, Defendant Olympic determines in its sole discretion that the 2.6 acres are not needed for its [Olympic's] own development purposes. Olympic never determined that the acreage was not needed for Olympic's own purposes. Instead, as Plaintiffs own Complaint affirmatively pleads, prior to Plaintiffs forwarding of the correspondence by which it purported to exercise its option, Plaintiff was expressly notified by Olympic that Olympic had determined, in its sole discretion, that the remaining property was needed. See Complaint, Exhibit "D"; see also Defendant's Answer and New Matter at Exhibit "I". Thus, Plaintiff cannot possibly prevail upon Count I, since the pleadings in this matter establish that conditions precedent to Plaintiffs ability to exercise its option (i.e. Olympic's 6 prior determination that the acreage was unneeded) remained unsatisfied at the time Plaintiff purported to exercise said option'. Pennsylvania law applicable to the resolution of this dispute is not complicated. Where a contract is clear upon its face, and the Court may determine the intention of the parties through nothing more than a fair reading of the language of the instrument within its own four corners, the contract must be enforced. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). Construction of a contractual agreement is a question of law for the Court, and thus, judgment on the pleadings is entirely appropriate on a question of contractual interpretation, such as this. In summary, the language of the contract is clear, Plaintiff's claim as expressed in Count I of its Complaint cannot possibly succeed, and Defendants' request for judgment on the pleadings should be granted forthwith and Count I dismissed with prejudice. B. The circumstances of Plaintiff's acquisition of the parcel benefiting from the easement establish that Plaintiff waived, abandoned or should be estopped from enforcing the same. In Count II, Plaintiff complains that an access easement that it acquired as part of the parties' overall negotiations for the cross-easement Agreement is not presently located in the precise location in which the deed might otherwise provide. The fact of the matter is, that the parties entered into the cross-easement Agreement with the specific purpose in mind of benefiting both shopping centers by creating certain new traffic patterns which would facilitate 'Not only does the record demonstrate that Plaintiffs Complaint cannot succeed, the record leads one to wonder how Plaintiff could possibly assert this claim in good faith. As if this language in the Agreement were not clear enough, the Agreement also provides several other conditions precedent which were never satisfied prior to Plaintiffs purported exercise of the option. The same passage quoted above also includes certain other conditions precedent which even Plaintiffs own Complaint demonstrate cannot be met. One example of this is that the option is only exercisable should such exercise not require any municipal approvals or variances. In fact, 7 access to and between both shopping centers for the benefit of both landlords and their tenant shopping centers. Any fair reading of the parties' overall Agreement demonstrates that the parties were well aware that access to and from the various parcels would be reconfigured in a specified manner and that driveways and curbing would be installed, in some cases located within the existing easement. At this juncture, what Plaintiff asks the Court to do in Count II is to require that the access ways provided in the parties' Agreement be disregarded, and that the Court instruct Defendant to reconfigure the parking lot back to its status prior to the parties' entry into the instant Agreement. Plaintiff's argument is not consistent with the Agreement it willingly entered into, nor does it comport with common sense or the efficient use of any resources. To reiterate, Count II is also in the nature of a request for specific performance. Such a request is inherently discretionary in nature and its constitutes an appeal to the Court's conscience. Barnes v. McKeller, suprat. Under circumstances such as these, where Plaintiff clearly has access to its property, and which access is better now (being over a paved road with storm water management, etc.) than the access had been previously (i.e. over an unimproved gravel road), there is no legitimate basis for Plaintiffs request. Plaintiff is not harmed as a result of the entirely de minimus relocation of the access easement, several feet to the west of its previously defined location. Granting equitable relief to Plaintiff will not, in fact, benefit Plaintiff, but rather will only inconvenience Defendants, and, potentially, cause correspondence from Plaintiff's own counsel acknowledges that municipal approvals, including variances, would be required should the option be exercised See Answer at Exhibit "3"). 'Plaintiff's alternative request for declaratory relief is similarly addressed to the discretion of the Court. SeA Penn State Lodge v. Com.. Dept. of tabor, 692 A.2d 609 (Commw. 1997). 8 Defendants difficulty with regard to the municipal approvals it has already obtained for the current parking lot configuration. Courts routinely refuse to grant specific performance where there will be no benefit which corresponds to the burden imposed upon the Defendant. Lee, Grasso. Thimons, 384 Pa. Super. 593, 559 A. 2d 925, 928, app. den 525 Pa. 612, 577 A.2d 544, a den. im s v. Smith, 525 Pa. 612, 577 A.2d 544 (1989) citing Loeb v. Watkins, 428 Pa. 480, 240 A.2d 513 (1968). In this case, Plaintiff entered into an Agreement which contemplated the current configuration, knew and understood that the Agreement would be subject to municipal approvals, and sat by while the municipal approvals were obtained and the improvements were made to the parcels in question. This conduct, if not constituting an outright abandonment or waiver of the easement in question, certainly rises to the level of estoppel to assert its present claim. See, Zitelli v. Dermatology Educ & Res., 534 Pa. 360, 633 A.2d at 34 (1993) (discussing doctrines of waiver and estoppel). See also Grasso v. Thimons, at , 559 A.2d at 929 (discussing equitable estoppel). Particularly given that Plaintiff now enjoys superior access to the three acre parcel in question, Plaintiff is asking this Court to require Defendants to perform a useless act, something this Court's conscience should not require. Penn Galvanizing C0 o. City of Philadelphia, 388 Pa. 370, 130 A.2d 571 (1957); Williams v. Barbaretta, 359 Pa. 488, 59 A.2d 161 (1948); Assoc. of Westinghouse Salaried Empl v Westinghouse Elec Co[ P., 283 F.2d 93 (3d Cir. 1960). 9 That Plaintiffs demand for the restoration of the previous easement is truly a demand that the Court order a useless act becomes clear upon study of Exhibit "G" to Plaintiffs Complaint. Although Count II demands specific performance so that Plaintiff may utilize the pre-existing easement to access Carlisle Pike, (Complaint, 136) Plaintiffs Exhibit "G" explicitly states that the easement is "Not to be used for access to Carlisle Pike". Instead, vehicles must utilize the adjacent access to and from the Carlisle Pike. Consequently, the only issue actually raised by Count II is whether, in a large parking lot which is entirely paved, it is actionable that certain curbing obstructs the original easement, in accordance with the parties' Cross-Easement Agreement and the traffic patterns established thereby. The answer is obvious: neither specific performance nor declaratory relief will lie under these circumstances, and Count 11 should be dismissed with prejudice. Having sat by from the negotiation of the parties' Agreement in August of 1995 until the filing of the instant Complaint in August of 1999, (in fact, having sat quietly prior to recognizing that the "optioned" parcel would not be made available to them), Plaintiffs belated insistence upon the precise location of this easement is transparent and should be readily ignored by this court of equity. 10 IV. CONCLUSION For all of the foregoing reasons, Defendants are confident that this Court will see this action for what it is, and will dismiss Plaintiffs Complaint and enter judgment on the pleadings in favor of Defendants forthwith. A form Order is attached for the convenience of the Court. Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC Mark D. Bradshaw, Esquire Supreme Ct. I.D. #69175 Ronald M. Lucas, Esquire Supreme Ct. I.D. #18343 One South Market Square Building 213 Market Street Harrisburg, PA 17101 (717) 237-6000 Attorney for Defendants DATED: Z? t9a LD221957 II CERTIFICATE OF SERVICE AND NOW, this Z? day of st 22000, I, Mark D. Bradshaw, Esquire, hereby certify that I am serving a copy of the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Michael J. Clement, Esquire WISLER, PEARLSTINE, TALONG, CRAIG, GARRITY & POTASH, LLO Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorney for Plaintiff Mark D. Bradshaw, Esquire OCT 0 6 2000th MICHAEL J. CLEMENT, ESQUIRE Attorney I.D. No. 20039 WISLER, PEARLSTINE, TAL.ONE, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road, Suite 100 Blue Bell, Pennsylvania 19422 Attorneys for Plaintiff (610) 825-8400 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, and HAMPDEN COMMONS CONDOMINIUM ASSOCIATION, a Pennsylvania non-profit corporation, Defendants NO. 99-5198 Equity CIVIL ACTION - EQUITY PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS BACKGROUND Plaintiff filed its Complaint in the instant matter on August 25, 1999. This litigation arises out of a series of negotiations and agreements entered into by and between the Plaintiff, Cumberland Partners, and the Defendants, Olympic Realty and Development Corporation and H.C. Holdings Limited Partnership. Defendants are refusing to recognize Plaintiffs option to purchase 2.6 t acres of land which is designated in a document recorded in Cumberland County (Misc. Book 526, p.661) as withdrawable real estate in Hampden Commons Condominium Association "...In order to convey the same to Cumberland Partners, if Cumberland Partners, or its successors or assigns, exercises its option to purchase such land." In the Summer of 1995, Olympic approached Plaintiff in order to induce Plaintiff to grant easements to Olympic which Olympic required in order to gain additional access to Carlisle Pike thereby enhancing the value and development of its shopping center to be known as Hampden Commons. Olympic offered Plaintiff the right to purchase certain land owned and/or controlled by Olympic adjacent to the lands owned by Plaintiff in exchange for access easements and other rights. On or about December 21, 1995, Olympic and Plaintiff entered into an Agreement to Provide for Cross Easements and Options, a true and correct copy of which is attached to the Complaint as Exhibit "A" and which is also attached hereto as Exhibit "A" for this Court's ease of reference (the "Agreement"). In addition, a Memorandum of Cross Easements and Options Agreement dated October 16, 1995, effective as of December 21, 1995, was executed by and between Olympic and Plaintiff and a true and correct copy of that Memorandum is attached to Plaintiff's Complaint as Exhibit "B" and is also attached hereto as Exhibit "B" for this Court's ease of reference (the "Memorandum of Agreement"). Pursuant to the Agreement and the Memorandum of Agreement, Olympic granted Plaintiff options to purchase the balance of a eight Acre Area being part of the Hampden Commons Parcel to the extent that eight Acre Area (the "Eight Acre Area") was not to be used by Olympic in connection with its planned development of its shopping center known as Hampden Commons. Paragraph H of the Agreement provides, in pertinent part, as follows: H. Olympic Realty has agreed to sell three (3) acres of Capital Products Parcel; and (2) grant an option to Cumberland Partners to purchase the remaining unneeded acreage in the eight acre portion of the Capital Products Parcel which is to the rear and south of the K-Mart Parcel as shown in Exhibit "A.. Attached as Exhibit "A" to the Agreement is a plan showing the Eight Acre Parcel. Plaintiff purchased three acres of the Capital Products Parcel as described in Paragraph H of the Agreement set forth hereinabove. The remaining option ground could not be identified immediately because Olympic's land development plans were not yet approved. After approval the subject 2.6 ± acres of option land was designated and recorded as withdrawable real estate " . .. in order to convey the same to Cumberland Partners." Plaintiff has exercised its option to purchase the "remaining unneeded acreage in the eight acre portion of the Capital Products Parcel" but Defendants have refused to recognize Plaintiffs option. COUNT I-ARGUMENT As set forth in Plaintiffs Complaint, Olympic required access to public roadways and land to be dedicated for public roadways in order to satisfy governmental and quasi- governmental authorities so that Olympic would receive approvals to construct its shopping center known as Hampden Commons. (See Paragraph 2 of the Agreement). In exchange and in consideration, the Olympic granted to Plaintiff an easement to use any excess capacity in a certain retention/detention basin in the event a retention/detention basin was required to be constructed by Olympic on any of the Eight Acre Area. (See Paragraph 10 of the Agreement). An area of 2.6 acres of land t which is part of the Eight Acre Area was not needed by Olympic for the construction of its shopping center known as Hampden Commons and was made "withdrawable real estate" in the Declaration of Condominium of Hampden Commons Condominium recorded on July 30, 1996 in Cumberland County, Misc. Book 526, p. 569 and is also described in a legal description for Lot 2, January 10, 1996 in Book 526, p. 661 in order to allow its sale to Plaintiff. Moreover, Olympic executed a Joinder which is part of and incorporated in the Memorandum of Agreement which is attached hereto as Exhibit "B" and which provides, in pertinent part, as follows: "A Declaration of Condominium of Hampden Commons Condominium shall be recorded, which declaration shall reserve unto the Declarant or its successors or assigns, the right to withdraw Lot 2 and Lot 3, respectively, as shown on the Preliminary/Final Subdivision and Land Development Plan of Hampden Commons, dated October 19, 1995, and recorded in the Recorder of Deeds for Cumberland County, Pennsylvania, in Plan Book 72, p. 50, from the condominium in order to convey the same to Cumberland Partners, or its successors or assigns if Cumberland Partners, or its successors or assigns exercises its option to purchase such land." (Emphasis added). Lot 2 referenced in the above quote is the 2.6 acres t which is part of the Eight Acre Area which was not needed by Olympic for the construction of its shopping center known as Hampden Commons. Plaintiff's counsel notified Defendants that Plaintiff was giving Defendants thirty (30) days written notice of its right to exercise its option to purchase the balance of the above- described Eight Acre Area, namely 2.6 acres t. Defendants' counsel gave notice to Plaintiff, for the first time, that it had determined, in its sole discretion, that the remaining property (the balance of the above-described Eight Acre Area) is needed by Olympic for development of its shopping center. After the Hampden Commons shopping center had been developed, after the recording of a document providing for the transfer of the subject 2.6 acres of "withdrawable real estate" to Plaintiff, Defendants now take the position they need the balance of the Eight Acre Area for the development of its shopping center. The underlying consideration for Plaintiffs agreement to grant easements for access and other rights to Defendants in exchange for the options to purchase the balance of the Eight Acre Area was based upon a warranty from Olympic to Plaintiff that Olympic would build approximately 250,000 square feet (of shopping space) in the approximate location as set forth on an exhibit to the Agreement. (See Paragraph 3 of the Agreement and Exhibit "A" to the Agreement). Plaintiff relied upon Olympic's warranty as set forth in Paragraph 3 of the Agreement in determining that it would accept as consideration options from Olympic as described in the Agreement and determined that (i) there would be a balance of the above- described Eight Acre Area which Plaintiff would purchase from Olympic based upon Olympic's construction of a shopping center having approximately 250,000 square feet as warranted; and (ii) that Plaintiff would have the right to use a portion of the balance of the above-described Eight Acre Area for open space or for retention/detention of stormwater from its own shopping center expansion, and Plaintiff would have access by easement to any excess capacity in retention/detention facilities constructed by Olympic. This was Plaintiff's benefit of its bargain with Defendants. But for Olympic's warranty as set forth in Paragraph 3 of the Agreement, and Olympic's agreement to grant options to Plaintiff for the purchase of land including the 2.6 acres f which is part of the Eight Acre Area which was not needed by Olympic for the construction of its shopping center known as Hampden Commons, Plaintiff would not have entered into the Agreement and would not have granted the easements required by Olympic for the construction of Hampden Commons. After the Complaint was filed by Plaintiff and during discovery in the instant matter, Plaintiff has discovered that Defendants breached the warranty and have obtained approvals for construction of a shopping center pennitting approximately 40,000 square feet in excess of the warranted 250,000 square feet as set forth in the Agreement. As set forth in Plaintiffs Complaint, Plaintiff believes and therefore avers that Defendants have determined that the remaining property (the balance of the above-described Eight Acre Area) is needed by Olympic for additional development of its shopping center. Plaintiff believes and therefore avers that Olympic has already breached its warranty with respect to the size of the shopping center it would construct and now is attempting to use the additional 2.6 acres f for additional development of its shopping center. This clearly deprives Plaintiff of the consideration that was promised and for which Plaintiff transferred extremely valuable cross easements and other interests pursuant to the Agreement without which Defendants could not have constructed their Hampden Commons shopping center. Defendants would like this Court to ignore most of the Agreement entered into by the parties and a recorded instrument whereby the 2.6 acres f which is the subject of this lawsuit is identified in Cumberland County Misc. Book 526, p. 525: "In order to convey the same to Cumberland Partners, or its successors or assigns, if Cumberland Partners, or its successors or assigns, exercises its option to purchase such land." Defendants would like this Court to ignore Olympic's warranty that it would build a shopping center of approximately 250,000 square feet when this warrant was specifically given so that Plaintiff would rely upon it in determining the benefits it would receive (including the option to purchase ground not needed by Olympic for its 250,000 square foot shopping center) in exchange for extremely valuable access, ingress, egress and other rights Plaintiff was giving to Defendants. Defendants would like this Court to ignore the fact that Olympic has already breached its warranty: Township records discovered by Plaintiff after the filing of its Complaint confirm that Olympic's plans submitted after the execution of the Agreement and the filing of the Memorandum of Agreement provide for a shopping center approximately 40,000 square feet in excess of what Olympic warranted that it would build. And, Olympic is apparently attempting to provide for additional space in its shopping center by using the 2.6 acres which is the subject of this lawsuit and which it had designated for transfer to Plaintiff in a recorded document. COUNT 1- DISCUSSION OF THE LAW A. The Defendants Have Not met the High Standard Required for a Judgment on the Pleadinim In Pennsylvania, a judgment on the pleadings may be entered only in clear cases which are free from doubt where there are no issues of fact. Otterson v. Jones, 456 Pa. Super. 388, 690 A.2d 1166, 1166 (1997). There must not be any genuine issue of fact, and the moving party must be entitled to judgment as a matter of law. Swartz v. Swartz, 689 A.2d 302, 303, 456 Pa. Super. 16 (1997). The moving party admits for the purpose of its motion the truth of all of the allegations of the adversary, and the untruth of any of its own allegations which may have been denied by the adversary. Otterson, 690 A.2d at 1166. Only facts which have been specifically admitted to the Court are to be considered in ruling on a motion forjudgment on the pleadings. Shirley by Shirley v. Javan, 454 Pa. Super. 131, 684 A.2d 1088, 1089 (1996). The Court may grant judgment on the pleadings only where the moving party's right to succeed is certain and the case is so free from doubt that trial would be a fruitless exercise. Id. at 1089-90. As has been discussed above, and as will be discussed below, the Defendants' right to relief in this matter is far from certain. In fact, under Pennsylvania law, the Plaintiff's likelihood of success on the merits of both counts filed in this action is substantial. This case is not "so free from doubt that trial would be a fruitless exercise." The Defendants' Motion for Judgment on the Pleadings falls far short of the standards set forth by Pennsylvania courts for such a judgment, and must be denied. B. The Defendants Cannot Ignore the Intention of the Parties in Fnterin this Transaction. When interpreting an agreement between parties, the primary purpose of the court is to ascertain and give effect to the intention of the parties. Lower Frederick Township v Clemmer, 518 Pa. 313, 329, 543 A.2d 502 (1988). In filing for a judgment on the pleadings, the Defendants would have this Court ignore Pennsylvania law which holds that when two or more writings are executed as part of the same transaction, they must be construed together. Black v. T.M. Landis. Inc., 280 Pa. Super. 621, 625, 421 A.2d 1105 (1980). Where a contract is ambiguous and by necessary implication refers to another document, the court may look to such other document as additional evidence of the surrounding circumstances in order to ascertain the intention of the parties. International Organization Master. Mates and Pilots of America Local No. 2 v. International Organizatien Masters Mates and Pilots of America Inc., 497 Pa. 102, 110, 439 A.2d 621 (1981). In this matter, the Defendants are attempting to hide behind language in the Agreement entered into between the parties in December 1995 for the proposition that Plaintiff has not satisfied certain conditions precedent to its ability to exercise the option to purchase the 2.6 acres ± of land. The understanding between the parties did not stop with this paragraph of the Agreement. In exchange for and in consideration of the roadway access which Plaintiffs granted to Olympic, Olympic granted to Plaintiff an option to purchase excess land not required by Olympic in completing the development of its own property. This fact is referred to in Paragraph H of the Agreement, in the Joinder incorporated in the Memorandum of Agreement, in the instrument recorded at Cumberland County Misc. Book 526, p.525, and in the other recorded documents discussed above. To permit judgment on the pleadings would disregard the clear intention of the parties and overlook the additional documents and materials which are necessary to obtain an understanding of this complex transaction. Furthermore, such an action would render the Plaintiff with less than the intended consideration for the valuable easements it granted to Olympic. To grant the Defendants motion on the pleadings would adopt an interpretation of the parties' agreement which would ignore the object and result reasonably intended by the parties in entering into this transaction. See e.g., Wrenfield Homeowners Association. Inc v DeYoun , 410 Pa. Super. 621, 600 A.2d 960,963 (1991); see also, DeChicchis v. School District of Borough of Elizabeth, 142 Pa. Super. 94, 95, 15 A.2d 492 (1940) (noting that when construing a contract, the language must be interpreted so that the agreement as a whole may be carried into effect). COUNT 11-ARGUMENT Plaintiff believes that Defendants have breached the Agreement and the Memorandum of Agreement as set forth hereinabove. Further, the three acre parcel which has already been transferred from Defendants to Plaintiff (the "Three Acre Parcel") benefits from an easement, license, right and privilege of passage and use, both pedestrian and vehicular, for the purpose of ingress and egress to and from Carlisle Pike pursuant to a Declaration of Easement recorded in Deed Book 187, Page 759 in Cumberland County, Pennsylvania, true and correct copies of which are attached to Plaintiffs Complaint collectively as Exhibit "F" and which are also attached hereto as Exhibit "F" for this Court's ease of reference (the "Declaration of Easement"). There also exists a plan prepared for Harvritch Associates dated October 2, 1972. Plaintiff modified that plan in order, to the best of Plaintiff's knowledge, information and belief, to show the location of the easement granted in the Declaration of Easement referenced above. A true and correct copy of that plan is attached to Plaintiffs Complaint as Exhibit "G" and is also attached hereto for this Court's case of reference. Defendants have disavowed the Declaration of Easement and have refused to recognize Plaintiffs rights in and to the Declaration of Easement. Defendants argue that it makes no difference because Plaintiff now has a different better access to its property. Plaintiff's disagree that the current access is somehow better than that granted in the Declaration of Easement. Moreover, that is irrelevant since the Declaration of Easement has not been extinguished and is a right which can be exercised by the Plaintiff especially in light of Defendants' breaches. COUNT II - DISCUSSION OF THE LAW A. Where the Terms of an Easement are Clear, Defendants Cannot Succeed in Motion for Judgment on Pleadings Seekine Denial of Claim for Specific Performance. The high standards which must be met by a defendant seeking a Motion for Judgment on the Pleadings are set forth at length above. Regarding Count II of Plaintiffs Complaint, the Defendants have elected to disregard well-established Pennsylvania case law which gives grantees of an express easement a clear right to the easement as specifically set forth in the agreement giving rise thereto. A Declaration of Easement has been recorded in Cumberland County, which sets forth the location and extent of the easement granted to the Plaintiff. Defendants may not now be heard to deny the Plaintiffs right to an easement in the location expressly agreed to by the parties and recorded with the County. In Piro v. Shipley, the Pennsylvania Supreme Court stated: In the case of an easement by express grant, the rights and liabilities of the parties are determined by the terms of the agreement, and each has a right to insist that the terms of the agreement by complied with, and that, so long as the easement is enjoyed, it shall remain substantially as it was at the time the right to accrued, regardless of whether benefit or damages will result from a proposed change. 211 Pa. 36, 45-46, 60 A. 325 (1905). Unless it is ambiguous, the express language of an agreement creating an easement controls. S e Merrill v. Manufacturer's Light and Heat Company, 409 Pa. 68, 73, 185 A.2d 573 (1962). For an express easement, the extent of the right granted by it depends on the terms of the instrument conveying the interest, interpreted under general principals of contract law. Hann v. Saylor, 386 Pa. Super. 248, 562 A.2d 891, 893 (1989). An easement similar to the one agreed to by the Plaintiff and Defendants in this matter was recently the subject of the United States Court of Appeals for the Third Circuit's decision in Louis W. Epstein Family Partnership v Kmart Corp., 13 F.3d 762 (1994). While not controlling in this case, the Third Circuit's rational application of the Pennsylvania law of express easements is persuasive. In Epstein, the appellee held an express easement for access from the main road to its Levitz furniture store across the property of land owned by K-Mart. Id. at 764. When the property on which the Levitz store was located was separated from the parcel which was eventually purchased by K-Mart, a Declaration of Easements was executed and recorded contemporaneously with the division of the property. Id. at 765. K-Mart, as part of the development plan for its subservient parcel, proposed modifications to the easement area reserved for Levitz traffic which encroached on the location and extent of that easement. Id. Finding a substantial interference with the easement rights granted by the appellants, the Epstein court affirmed the trial court's grant of a permanent injunction against encroachment on the easement rights reserved in the Declaration of Easements. Id. at 775. Relying on Pennsylvania law, including the Supreme Court decision cited above, the Epstein court held that under an express easement, the terms of the conveyance determine the rights and liabilities of the parties. Id. at 766. Unless the language of the agreement is ambiguous, the court stated that the express terms of the easement will control. Id. The Defendants in this matter have failed to cite to any case law discussing their right to the extraordinary relief they have requested in the context of an express easement which has been recorded. In fact, none of the cases cited in the Defendants' brief relate to the terms of an easement, express or otherwise. Based on the strong presumption in Pennsylvania in favor of an express easement of the size and location established by the parties in their agreement, the Defendants may not now be heard to argue thatjudgment on the pleadings is appropriate on Count II of the Complaint. WHEREFORE, Plaintiff respectfully requests that this Court enter an Order denying Defendants' Motion for Judgment on the Pleadings. Respectfully submitted, WISLER, PEARLSTINE, TALONS, CRAIG, GARRITY & POTAS DATE: 1015100 MICR EL J. CL O T, ESQUIRE Attorneys for Plgi iffs \\WISLER\D\Usem\sandyWy DocumentsWicTumberland Partners\Bncf.doc 10/03!2000 9:18 AM 12 Exhibit A AGREEMENT TO PROVIDE FOR CROSS EASEMENTS AND OPTIONS THIS AGREEMENT TO PROVIDE FOR CROSS EASEMENTS AND OPTIONS ("Agrebment") is made this-n.!rt day of &«t .6y , 1995, by and among OLYMPIC REALTYAND DEVELOPMENT CORPORATION, a New York corporation ("Olympic Realty'); CUMBERLAND PARTNERS, a Pennsylvania limited partnership ("Cumberland Partners'; and KMART CORPORATION, a Mchigan corporation ("Kmart'). .RECITALS: A. • Olympic Realty is the owner of a parcel of real property located in Hampden Township, Cumberland County, Pennsylvania (the "Capitol Products Parcel"); and B. Cumberland Partners is the owner of a certain parcel of real property located in Hampden Township, Cumberland County, Pennsylvania (the "Kmart Parcel"; the Capitol Products Parcel and. Kmart Parcel are sometimes individually referred to as "Parcel" and collectively referred to as the "Parcels'. C. Kmart is a lessee of the Kmart Parcel. D. Olympic Realty desires to develop the Capitol Products Parcel for a commercial/retail shopping center. E. Olympic Realty, Cumberland Partners, and Kmart agree that it is in the best interests of all parties that cross-easements exist between the. adjacent Parcels for the purpose of ingress and egress of vehicular traffic between the Kmart Parcel and Capitol Products Parcel. F. Olympic Realty has agreed to grant two (2) access easements between the Capitol Parcels as shown in Exhibit "A", attached hereto and made a part hereof. G. Cumberland Partners, with the advice and consent of Kmart, has agreed to grant an access easement across the Kmart Parcel as shown in Exhibit "A" attached hereto and made a part hereof. H. Olympic Realty has agreed to sell three (3) acres of the Capitol Products Parcel; 1 EXHIBIT "A" I LWXLVIOLYMnCOm Nw mbc,7.1"1 and (2) grant an option Lo Cumberland Partners to purchase the remaining unneeded acreage in the eight (8) acre portion of the Capitol Products Parcel which is to the rear and south of the Kmart Parcel as shown in Exhibit "A". 1. The parties hereto desire to memorialize their understanding by and among the parties and get forth the covenants, tenns, and conditions for the granting of such easements and options. J. The owner of each Parcel shall be deemed to refer to such parties and the respective heirg; successors, grantees and assigns of such parties (each as "Owner" or collectively, , the "Owners"). NOW, THEREFORE, in consideration of the above-stated premises and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto covenant ' and declare, for themselves, successors, and assigns, and successors in title to the parcels as follows: 1. Qlymgic Realty Contineencv. The Mutual obligations of the parties to fulfill their obligations under this Agreement shall be contingent upon Olympic Realty or one of its affiliates or assigns obtaining title in fee simple to the Capitol Products Parcel within thirty-six (36) months of the date of this Agreement unless otherwise extended by written agreement among the parties. 2. Crass-Easements. Olympic Realty and Cumberland Partners agree to grant to each other the following non-exclusive rights and easements for the benefit of and as appurtenances to, each Parcel, with respect to, and as a burden upon, the other Parcel: (a) a non-exclusive perpetual right and easement for pedestrian and vehicular ingress and egress upon and across the Parcels, in the areas as set forth in Exhibit "A", as more particularly described in Exhibit "B" attached hereto and made a part hereof for the purpose of driving, walking, or going upon or across such cross-easement area as indicated in Exhibit "A" (the "First Cross Easement"), however, this shall not include any cross parking easement or arrangement unless mutually agreed upon in writing between the Owners; (b) A second cross-easement directly in front of the facility currently leased by Kmart on the Kmart Parcel for access to and from the Parcels for the same purposes as set forth in paragraph 2(a) above as indicated in Exhibit "A" and as more particularly described in Exhibit "C" attached hereto and made a part hereof (the "Second Cross Easement'); and (c) Kmart consents in the cross casements referred to in this paragraph 2; and (d) Olympic Realty shall be solely responsible for expenses incurred ".in constructing the First Cross Easement and Second Cross Easement, thereafter, Cumberland 2 LAALVRAOLYMCa45 D m"er 241973 Partners and Olympic Rea..y agree that the First Cross Easement ._.d Second Cross Easement shall be solely maintained by Olympic Realty in accordance with the terns and conditions on the Declaration of Reciprocal Easements and Restrictions described in Exhibit "D" and "E", respectively, attached hereto and- incorporated by reference herein. (e) Cumberland Partners, at its sole expense, shall have the right at any time to relocate the Second Cross Easement up to 50 feet in either direction from where presently indicated on Exhibit "A", provided that the dimension of the relocated Second Cross Easement shall not exceed the dimensions as shown on Exhibit "A" (f) Cumberland Partners shall be entitled to a twenty (20) foot wide construction easement around the perimeter of the First Cross Easement and Second Cross Easement. : 3. Warranty. Olympic Realty warrants that the retail buildings as shown on Exhibit "A" for the Capitol Products Parcel will be built in the approximate location shown thereon and will contain an area of approximately 250,000 square feet. This warranty is given solely for informational purposes and as necessary for the granting of the cross-easements and options contained herein and may not be relied upon as accurate for any other purpose. The parties have agreed that Exhibit "A" shall contain a "no building area". 4. Escrow of Goss Easement.4"menis. (a) Contemporaneously with the execution of this Agreement, Olympic Realty and Cumberland Partners shall execute the Cross Easement Agreements attached hereto as Exhibit "D" (the "First Cross Easement") and Exhibit "E" (the "Second Cross Easement"). Both Cross Easement Agreements shall be held in escrow by Olympic Realty's attorney. (b) At the time of settlement for the Capitol Products Parcel by Olympic Realty, (1) the First Cross Easement shall be released to Olympic Realty for recording at the time of settlement for the Capitol Products Parcel by Olympic Realty, and (2) the Second Cross Easement shall be released to Cumberland Partners for recording. If said settlement does ! not occur or Olympic Realty fails to purchase the Capitol Products Parcel within the time allotted in paragraph 1 above, then the escrow agent shall (1) mark the front page and signature page of the First Cross Easement "null and void" and return the original First Cross Easement to Cumberland Partners and (2) mark the front page and signature page of the Second Cross Easement "null and void" and return the original Second Cross Easement to Olympic Realty. 5. &ehts or Option. Subject to the conditions contained herein, Olympic Realty 3 ir? LIALVRAOLYMCCM D" .9m it. I- hereby irrevocably grants to Cumberland Partners the exclusive option rights effective the date of Settlement on the Capitol Products Parcel by Olympic Realty for a period which shall expire 36 (:. ., months from the later of (i) settlement on the Capitol Products Parcel by Olympic Realty, or (ii) written notice by Olympic Realty to Cumberland Partners of the amount of remaining acreage- available for Tract 3 as defined in Paragraph 5(b) below: ` (a) to purchase for the sum of Ten ($10.00) Dollars, a two (2) acre area ('Tract 1") as further described in Exhibit "F' attached hereto and made a part hereof and one (1) acre area ("Tract T) as further described in Exhibit "G", attached hereto and made a part hereof, both within the eight acre area as shown on Exhibit "A", to be conveyed in one lot to Cumberland Partners as a lot addition, provided, however, that such option shall only be effective if the conditions in paragraph 1 are fulfilled. Notwithstanding the above the sixty (60) day option period for Tract 1 and Tract 2 shall be extended an additional day for each day that settlement is scheduled for the purchase of the Capitol Products Parcel by Olympic Realty beyond 90 days from the date of this Agreement. (b) to purchase at a price of Fifty Thousand ($50000.00) Dollars per acre the , balance of the eight acre area (and no less than this amount unless said purchase is for the construction of a retention/detention basin) ("Tract 3") a-s further described in Exhibit "H" attached hereto and made a part hereof, not needed by Olympic Realty-as shown on Exhibit "A" (the "Remaining Acreage Option"). Olympic Realty shall have the right to regrade and remove fill from Tract 3 for the use and development of the Capitol Products Parcel, whether or not Cumberland Partners exercises its option to purchase Tract 3, for up to twelve (12) months after the date of settlement on the Capitol Products Parcel by Olympic Realty. For purposes of this paragraph the "balance of the eight acre area not needed by Ciympic Realty" shall mean the remaining property not subject to the options set forth in paragraphs 5(b) and (c), which are determined at the sole discretion of Olympic Realty, not required for development of the shopping center on the Capitol Products Parcel and, if developed, would not eithere(1) increase. the development costs, directly or indirectly, of the Capitol Products Parcel; or (2) require any municipal approvals (other than subdivision approvals) or variances, however, in no event shall.,,, j Cumberland Partners be entitled to less than the three acre area described in subparagraph (a) i above 6. Onrion Payments. In the case of the Access Option, payment is hereby acknowledged by Olympic Realty. If. the option is exercised to purchase the Remaining Acreage, the total consideration for the purchase of the Remaining Acreage is due at settlement. 4 VALWAOLYMMCRS omd.,1419/1 7. Erercise o, otions. (a) Cumberland Partners may exercise the options as provided in paragraph 5 above any time prior to 5:00 p.m. on the day in which the option period for such applicable option expires as provided in paragraph 5 (the "Expiration Date"), by delivery of written notice to Olympic Realty of Cumberland Partner's intent to exercise the appropriate option. In the event an option is not exercised by Cumberland Partners in the manner provided herein or on or before the Expiration Date of said option, such option shall expire without further action of any'party; automatically terminate, and thereafter be null and void and have no force and effect. (b) Within sixty (60) days of the date of this Agreement, Olympic Realty shall furnish to Cumberland Partners a title insurance commitment verifying the status of the title of the Capitol Products Parcel. Cumberland Partners acknowledges that all necessary parties have joined in the execution of this Agreement and the documents set forth in the exhibits to this Agreement. (c) . . For. purposes of the Remaining Acreage Option, Cumberland Partners shall give Olympic Realty thirty (30) days prior written notice of its right to exercise said options whereupon Cumberland Partners shall, at its expense and its option, obtain an updated title insurance binder, survey and environmental report. During said -thirty (30) day due diligence period, Cumberland Partners, their employees and agents shall have the right to access the properties and perform such reasonable tests as are needed in their sole discretion, however, Cumberland Partners agree to indemnify and hold harmless Olympic Realty from any damages or injuries which may result from the actions of Cumberland Partners, their employees or agents. (d) This Agreement is conditioned on Olympic Realty being able to convey good and marketable title for Tract 1 and Tract 2 to Cumberland Partners. (e) Cumberland Partners or its agents shall conduct a Phase 1 environmental study of Tract 1 and Tract 2 to be completed within sixty (60) days of the date of this Agreement. Such report shall be made available to Olympic Realty within such sixty (60 ) day period. If the Phase 1 study requires any further remediation in compliance with the Greenfields Buyer/Seller Agreement as defined in Paragraph 12 below, then Olympic Realty shall immediately conduct such remediation, otherwise Cumberland Partners shall have the right to either terminate this Agreement by giving written notice of said termination to Olympic Realty within 15 days of receipt of notice from Olympic Realty that it does not intend to 5 1'W.VRAOLYMCIXS c4., 14 IWf perform such remediation _,cl this Agreement shall be, null and N . or extend the option to purchase until such remediation is completed. Olympic Realty shall perform such remediation with due diligence and Cumberland Partners shall have the right to enforce said remediation through the right of specific performance. (f) Simultaneously upon the execution of this Agreement, the parties hereto have executed a Memorandum of Option which shall be recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, a copy of which is attached hereto and marked Exhibit "I". 8. Certifled Funds. All payments required under this Agreement shall be made by certified or cashier's check or by other immediately collectable form of payment, including wire transfer of funds. 9. Settlement.' Settlement on Tract 1 and Tract 2 shall occur contemporaneously with settlement on the Capitol Products Parcel by Olympic Realty. Settlement on the Remaining Acreage Option shall occur no later than ninety (90) days from the date an option is exercised by Cumberland Partners. Time is of the essence for any settlement as provided herein. 10. Retention/Detention Basin Easement In the event a retention/detention basin is required on any of the eight acre area shown on Exhibit "A" (net of any land sold to (.` . Cumberland Partners under paragraphs 5(a) - (b) above), Olympic Realty grants to Cumberland Partners a non-exclusive right and easement to utilize any excess capacity of said retention/detention basin; provided, however, in the event such excess capacity is insufficient to service the Kmart Parcel, Cumberland Partners shall be obligated, at its sole expense, to enlarge such basin to adequately service the Kmart Parcel, provided further, however, that any such enlargement shall not cause the Capitol Products site to be deficient in green area, violate any Municipal ordinances or regulatory laws, or cause Olympic Realty, or any other owner of the Capitol Products Parcel to incur, directly or indirectly, additional costs. 11. ; ,Restrictive Covenant. Olympic Realty agrees that the following restrictive covenant shall encumber the Capitol Products Parcel, which restriction shall be included in the Declaration of Reciprocal Easements and Restrictions as set forth in Exhibit "D" attached hereto and incorporated by referred herein: "For so lorig as Kmart Corporation, its "affiliate" or "successor" shall operate a "discount department store"-on the Kmart Parcel, no portion of the.Capitol Products Parcel shall be used as a "discount department store" containing more , V 6 LW.VIMOLYMCe a is IWI than 61,000 square - ct of floor area, except with respect tc ?iy use commenced (or permitted in a lease executed) during a period when the restrictions did not apply. For so long as Kmart Corporation, its "affiliate" or "successor" shall operate a "supermarket" integrated into a "discount department store" on the Kmart•Parcel, no portion of the Capitol Products Parcel shall be used as a "supermarket" or food store, except with respect to any use commenced (or permitted in a lease or other occupancy agreement executed) during a period when the restrictions did not apply, provided howevef,, that if Kmart does not '?k expand to include a "supermarket" or food store within thirty-six (36) months of settlement on the Capitol Products Parcel by Olympic Realty this restriction shall not apply. As used herein, the term "affiliate" shall mean any person, firm, corporation, partnership, association or other business entity which directly or. indirectly, through one or more intermediaries, controls, is controlled by or is under common control with Kmart Corporation. As used herein, the term "successor" shall mean any successor to Kmart Corporation by merger, consolidation or operation of law or the purchaser of all or substantially all of the assets of Kmart Corporation. As used herein, the term "discount department store" shall mean a store containing not less than 61,000 square feet of gross floor area on the ground floor, with an overall retail concept based on a discounting price structure, carrying a full line of general and specialty merchandise, including "hard goods" and "soft goods" (as such terms are generally used within the retailing industry)." 12. Remediarion. The parties hereto acknowledge that the Capitol Products Parcel was formerly used for an aluminum door and window manufacturing plant, and has been deemed a contaminated site by the Department of Environmental Protection (formerly Department of Environmental Resources) for the Commonwealth of Pennsylvania and is subject to a Consent Order and Agreement entered into as of the 27th day of January, 1995, by and among the Commonwealth of Pennsylvania, Department of Environmental Protection, Capitol Products Corporation and Olympic Realty (the "Greenfields Buyer/Seller Agreement"). Olympic Realty hereby. acknowledges Cumberland Partners, their successors or assigns, as a third party beneficiary to the Greenfields Buyer/Seller Agreement and shall make a partial assignment of Olympic Realty's rights and remedies in favor of Cumberland Partners in accordance with paragraph 7 of the Greenfields Buycr/Seller Agreement, upon the exercise and closing of the. options set forth in this Agreement. 7 ' , L1LL.VW\VLYMYII?(]tt LL+dc114 IW] 13. Enlrance !1. eovemerus. Olympic Realty shall be r",,onsiblc for the cost of all improvements with respect to the access casements described in Exhibit "A", however, should Kmart make any additional improvements to said easement areas or any other easement area granted herein at the time that Kmart expands its existing building, then Kmart shall be liable for the cost of said improvements. Kmart and Olympic Really must provide Cumberland Partners with the plans and specifications for all contemplated improvements with respect to said access casement. Cumberland Partners shall have ten (10) business days from the receipt of said plans and specifications to object to same; otherwise; said plans and specifications shall be deemed approved. All improvements must be built in accordance with all rules and regulations imposed by governmental agencies having jurisdiction and in a lien free condition. 14. AnnortionmenLr Olympic Realty and Cumberland Partners shall each pay.' one-half(1/2) of All realty, transfer. taxes imposed as a result of the transfer of any property,,.. pursuant to.this Agreement.w 15. Construction Easement. The parties hereto agree that Olympic Realty shall be entitled to a temporary construction easement twenty (20) foot in width around the perimeter of the First Cross Easement and Second Cross Easement as shown on Exhibit "A", provided that (a) Olympic Realty shall restore such area to its original condition upon completion of construction; and (b) during the term of the construction casement Olympic Realty or its agents shall not interfere with the use of any current parking spaces or the ongoing business operations on the Kmart Parcel during normal business hours. This construction easement shall expire upon completion of the construction on the Capitol Products Parcel. 16. Nonwaiver. No delay or omission of either party in the exercise of any right accruing upon any default of the other Owner shall impair such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. 17. Modification. This Agreement may not be amended, supplemented, modified, or terminated except, in writing, executed by the parties to be bound thereby. 18. Notices. Any notice, report, or demand required or committed or desired to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes if it is delivered (i) personally, (ii) by overnight carrier, prepaid by the sender, or (iii) mailed by registered or certified mail, return receipt requested, postage prepaid to the parties at the addresses shown below or at such other addresses the respective 8 • VAU MLYIRICQCS 00,AW24.19n parties may from time to ..me designate by like notice. Each such ..oticc shall be effective upon being so delivered. If to Cumberiand Partners: Attn: Phillip C. Giovinco cc: Joseph W. Gaynor In care of Brandywine drotip 2637 McCormick Dr., Suite B P.O.Box 500 Clearwater, Fl. 34619 Chadds Ford, Pa. 19317 If to Kmart: Kmart Corporation Attn: Leonard B. Clark 3100 W. Big Beaver Road Troy, Michigan 48084 If to Olympic Realty: Olympic Realty and Development Corporation. Attn: David Schwartz ; 424 E. 52nd St., Ste. 1B NY, NY 10012 19. Miscellaneous. (a) If any provision of this Agreement, or portion thereof, shall be held invalid, inoperative, or unenforceable, the remainder of this Agreement shall not be affected thereby. .(b) This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to conflicts of law provisions. (c) The article headings in this Agreement are for convenience only, shall in no way define or limit the scope or content of this Agreement, and shall not be considered in any construction or interpretation of this Agreement or any part thereof. (d) This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, and assigns. (e) This Agreement may be executed in multiple counterparts, each of which shall be regarded as original and all of which together shall constitute one and the same instrument. IN WITNESS WNF,REOF, the parties hereto have caused this Agreement to be executed and sealed as the day and year first above-written. 9 ? wu.rurwb?nnr.UU uvWr l0. lwf parties may from time to t..e designate by like notice. Each such i..,.icc shall be effective upon being so delivered. If to Cumberland Partners: In care of Brandywine Group P.O.Box 500 Chadds Ford, Pa. 19317 If to Kmart: Kmart Corporation Attn: Leonard B. Clark 3100 W. Big Beaver Road Troy, Michigan 48084 .If to Olympic Realty: Olympic Realty and Development Corporation Attn: David Schwartz 424 E. 52nd St., Ste. iB NY, NY 10012 • 19. Miscellaneous. (a) If any provision of this Agreement, or portion thereof, shall be held invalid, inoperative, or unenforceable, the remainder of this Agreement shall not be affected thereby. (b) This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to conflicts of law provisions. (c) The article headings in this Agreement are for convenience only, shall in no way define or limit the scope or content of this Agreement, and shall not be considered in any construction or interpretation of this Agreement or any part thereof. (d) This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, and assidgns. (e) This Agreement may be executed in multiple counterparts, each of which shall be regarded as original and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and sealed as the day and year first above-written. 9 .14ALVrmlymmCNX? Ur?. v. I-, Attest: Secretary Witness: f I?tc.c? / ttest: Ts#i?sk. << OLYMPIC REALTY AND DEVELOPMENT CORPORATION B . y-_D sident CUMBERLAND PARTNERS KMAR V ice Nrres ?cLo T Br ?- .. 10 EXI-IIB1T A TO AGREEMENT TO PROVIDE FOR CROSS EASEMENTS AND OPTIONS (the "Agreement") INDEX 1. Capital Products Parcel, Exhibit A-1 2. Kmart Parcel, Exhibit A-2 3. Site Plan, Exhibit A-3 The cross easements referred to in Paragraph 2 of the Agreement granted by Olympic Realty shall be a blanket non-exclusive, perpetual right arid easement for the benefit of Cumberland Partners, as the owner of the Kmart parcel, its successors, mortgagees, employees, tenants and customers of tenants for pedestrian and'vehicular ingress and egress upon and across the walks and driveways (excluding parking) of the Capital Products parcel having a Beginning of Access Easement as shown on the Site Plan. The maintenance responsibilities of Olympic shall be within the First Cross Easement and Second Cross Easement as further described as Olyinpic's Maintenance Obligation Area on the Site Plan. 4. The eight (8) acre parcel as referenced in Recital H of the Agreement has been reduced to five and 66/100ths (5.66) acres and described in Exhibit A-4 and located on the Site Plan as Lots 2 and 3 respectively. r;, 5. The First Cross Easement, Exhibit B and located on the Site Plan 6. The Second Cross Easement, Exhibit C and located on the Site Plan 7. Declaration of Reciprocal Easement and Restrictions for First Cross Easement, Exhibit D 8. Declaration of Reciprocal Easements and Restrictions for Second Cross Easement, Exhibit E 9. Tract 1 referred to as Exhibit F and Tract 2 referred to as Exhibit G are consolidated as a three (3) acre tract described as Exhibit F and located on the Site Plan as Lot 3 10. Tract 3, formerly described as Exhibit H is now a two and 6611 00ths"(2.66) 'acre'parcel, describ`e'd as Exhibit G and located on the Site Plan as Lot 2. H. Memorandum of Agreement attached hereto and incorporated as part of the Agreement as 'Exhibit H a:krhibital EXHIBIT A-1 L GAT, j)r. 1i ION All those certain two tracts or parcels of land situated in Ilampden Township, Cumberland County, Pennsylvania, bounded and described as follows: Tract No. i Beginning at a. point on the southern...right-of way line of the Carlisle Pike (U.S. Route 11., S.R.:0011) said point being located on'the western right-of-way line of an unnamed and unopened fifty' foot (501) street, thence from said point..of• Beginning, by said western right-of-way line South two degrees twenty five minutes twenty two seconds West (e 02' 25' 22" W) -a distance of four hundred twenty. seven and eighty four one hundredth feet (427.841)••to a point.on the northern right-of-way line of an unnamed and unopened . fifty foot (50 ) street; thence by said northern right-of-way Norrth sixty five degrees thirteen minutes and zero seconds (lest (N 65° 13' 00" W) "a distance of one hundred- twenty two and fifty one hundredths feet (122.50') to a point; thence by'land now or late of MGB Enterprises Inc. North twenty six degrees six minutes twenty seconds East (H 26° 66' 20" E) a distance of fifty and ninety three one hundredths feet (50.93') to a point; thence by the same North two degrees thirty two minutes zero seconds East (N 02' J21 UO" E) a distance of.two hundred seventy six and thirteen one hundredths' feet •(376.131) to a point'on the southern'Yight-of way line of the •`. Carlisle Pike; thence by the southern right-of way line, of the Carlisle Pike, by a curve to'the left, having a radius of eleven thousand five hundred nine and nineteen one hundredth feet (R= 11,509.190, an arc length of one hundred one'and four one hundredth feet.'(A/L= 101.041) to a point, the place of Beginning. Said tract contains 40311.41 square feet or 0.9254 acres. Tract No. 2 Beginning at a point on the southern right-of way line of the Carlisle Pike (U.S. Route 11; S.R. 0011) said point being located on the eastern right-of-way line of an unnamed and unopened fifty foot (501) street, thence from said point of Beginning, by said southern right-of way line of the Carlisle Pike, by a curve to the left, having a radius of eleven thousand f ive hundred nine and nineteen one hundredth feet (R= ii,509.191), an arc length of. twenty eight and seventy three one hundredth feet (A/L= 28.72') to a point; thence by the same South sixty three degrees fifty eight minutes nineteen seconds East (B t3' S8' 19" E) a distance of seven hundred ninety.two and fifty two one hundredth feet (792.521) to a point; thence by land now or late of Cumberland Partners South twenty six degrees three-minutes thirty four seconds West (8 24;° 03' 34" W) a distance of nine hundred eighty four and sixty six one hundredth feet (964.661) to a point to a point; thence by the same South seventy four. degrees six minutes forty seconds East (8 74' 06' 40" E) a distance of one thousand seven and thirty four one hundredth feet (1,007.341) to a concrete monument; thence by land now or late of Twigg Family Trust South zero degrees six minutes thirty four seconds West (8 00° 06' 34" W) a distance of three hundred twenty six and fifty three one hundredth feet (326.531) to an iron pipe on the line of land now or late of the United States of America (Defence Distribution Region East); thence by land now or late bf the United States of America (Defence Distribution Region East) North seventy five degrees nine minutes and fifty three seconds West (N 75° 09' 53" W) a distance of one thousand two hundred six and eighty one one hundredth feet (1,206.391) to a concrete monument; thence by the same•North seventy five degrees zero minutes and forty seven seconds West (N 75° 00' 47" W) a, distance of one twenty nine and fifteen one hundredth feet (29.15') to a re-bar; thence by the same South two 'degrees thirty. nine ' minutes twenty three seconds West (8 02° 39' 23" W) a distance of one hundred forty six and ninety eight one hundredth feet (146.98!) to a concrete -monument; thence by the same North eighty. eight degrees three minutes and fifteen seconds West (N 88° 031 .15!' if) .a ... distance of five hundred twenty eight and seventy nine one hundredth feet (528.791) to a concrete monument; thence by land now or late of Dauphin Distribution North-.eighty seven degrees fifty nine minutes and eighteen seconds West' (N 87° 59'•18" W) a distance of two hundred sixty six and six 'one hundredth feet (266.08') to a concrete monument; thence by land now or 'late of Overnite Transportation Company North twenty five degrees fifty''three minutes thirty three seconds East (N 25° 53''33" E) a distance of eight hundred fifty seven and'_ twenty five one hundredths feet .(857.251) to a point; thence by the same North sixty five degrees thirteen minutes and zero seconds West (N 65° 13' 00" W) a distance of seventy three and forty three one hundredths feet (73.43'.) to a point; thence by the'same North twenty five degrees fifty three minutes thirty three seconds East (N 25° 53+ 33" E) a distance of four hundred ninety nine and seventy seven one hundredths feet (499.771) to a point on the southern right-of-way line of an unnamed and unopened fifty foot (501) street; thence- by said southern right-of-way South sixty five degrees thirteen minutes and zero seconds East (e 65° 13' 00" E) a distance of one hundred sixty four and eighty three hundredths feet (164.841) to a point; thence by the eastern right-of-way line of an unnamed and unopened fifty foot (501) street North twenty four degrees forty seven Minutes zero seconds East (N 24° 47' 00" E) a distance of sixty nine and fifty seven one hundredths feet (69.571) to a point; thence by the same North two degrees twenty five minutes twenty two seconds East (N 02°•25! 22" E) a distance of four hundred five and twelve one hundredths feet•(405.12') to a point on the southern right-of way line of the Carlisle Pike, the place of Beginning, said tract contains 36.5618 acres. EXHIBIT A-2 LEGAL DESCRIPTION FOR K-MART PARCEL JANUARY 5, 1995 All that certain parcel-or tract of land situate in Hampden Township, Cumberland County, Pennsylvania, as recorded in the Office of the Recorder. of Deeds for Cumberland County, Pennsylvania, in Deed Book "29", Volume "N", Page 1196011, more particularly bounded and described as follows to wit:' BEGINNING at a point on the southern right-of-way line of the Carlisle Pike (U.S. Route 11):said point lying 1,618 feet east of the intersection of the' eastern- right-of-way line of Wingate Drive with the southern right-of-way line of the Carlisle Pike (U.S. Route 11) ; Then along the southern right-of-way line of the 'Carlisle Pike (U. S.. Route li).south 64-degrees 41..minutes 45 seconds East 370.00 feet to a point;. Then South 25 degrees 18 minutes 15 seconds West 218.10 feet to •a point; Then South 64 degrees 41 minutes 45 seconds East 334.98 feet to a point; Then South 00 degrees 38 minutes 15 seconds East 655.00 feet to a point; Then North 74 degrees... 52 minutes 00 seconds West 1007.34 feet to a point; Then North 25 degrees 18 minutes 15 seconds East 985.01 feet to a point, THE PLACE OF BEGINNING. .....,, .- ..... ? „ 0 Exhibit A-A d om 0 a 8 _, zz WW al ? ' A U I 6W x c_ i. ' bw w -Z 1 S oa • ?I s fY evi• { 3 OL Rif Ol' A EXHIBIT 'h-A" Exhibit B .., t ft fl tw? . ?c MTMORAmum OF ACRL• z&M--NT ¢l 17M ML-MORAND VM OF CROSS EASENM T1'S AND OPTIONS AOREMV- I-r dated the 16th day of October, 1995, effective as of December 21, 1995, by and among Olympic Ites?lty & DcYclopirawt Corp., a/k/a Olympic Realty and Development Corporation, a New York corporation ("Olympic Realty"); Cumberland Partners, a Pennsylvania limited partnership ('Cumberland partners'); and Xxnart, a Michigan corporation ("Kmart"). . R L C I T A L S A. Olympic Realty is the equitable holder of certain properties situate in Hampden Township, Cumberland County, Pennsylvania pursuant to Agreements of Sale and Purchase dated May 13, 1994 between Capitol Products Corporation and Olympic Realty, as amended (the `Agreement of Sale") which Is more particularly described In `Exhibit A attached hereto (the `Capitol Products Parcel"). a. Cumberland Partners Is the owner of a certain parcel of real property located in Hampden Township, Cumberland County, Pennsylvania which is more particularly described in Exhibit B attached hereto (the •Kmart Parcel"); (the Capitol Products Parcel and Km= Parcel are sometimes collectively, referred to as the "Parcels"). C. Kmart Is Ella lessee of the Kmart Parcel. D. On or about December 21, 1995, Olympic Realty, Cumberland Partners and Kmart entered Into an agreement to provide for cross easements and options (the `Cross Easements and Options Agreement') whereby (1) the parties agreed to grant cross easements to each other between the Parcels as shown on the site plan attached hereto as Exhibir C (the "Site Plan"), and, (2) Olvmnic Realty 9:ml4il.9plions to Cupl¢v.dand l'adac for.LQL2.. A9d1At.? Icoal? nn?he Caoitet Products Parce! es hown o the Site Plan and -as further deseribfd,,as.:S,ol.,'t• and ?f: o.?? respeetivelY In the PlSliminxty/Final Suhdiv_ision and YTnd_ Development Plan of Hampden Commons, dated October 19, 1995 and recorded in the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 72, page 50; F. The Cross Easaments and Options Agreement also provide for a retention/detention basin easement on the Capitol Products Parcel and a restrictive covenant on tike Capitol Products Parcel against the use of the Capitol Products Parcel by a discount h0': .0'. department store and food store. BOOK 57G PACE 514 9 EXHIBIT "Btt P. The Cross Gsements and Options Agreement also sets forth the rights and obligations of the parties with regard to the options and cross easements and mutual uses of tlhc Parcels with regard to such options and easements. G. The cross easements shalt be subject to deelaratlons of reciprocal easements and restrictions for two (2) cross easements between the Parcels NOW TIIMMMIXE. for and In consideration of the above-state premises, the parties covenant and agree as follows; 1. . Notice Period, Olympic Realty, Cumberland Partners, and Kmart hereby give notice of public record of the existence of the Cross Easements and Options Agreement which (s) provides option rights of Cumberland Partners toPurchase certain property on the Capitol Products Parcel; (it) provides for cross easements between the parcels subject to declarations of reciprocal easements and restrictions as provided for in the Cross £'tsements and Options Agreement, (di) provides for the limitation of use of the Capitol Products Parcel for a discount department store and food store; (iv) provides for a retehuon/detention basin easement on the Capitol Products Parcel; and (v) provides for ail other matters contained In the Cross Easements and Options Agreement. All parties dealing with the Parcels, or attempting to attain any interest in the Parcels, on or after the date hereof, are hereby put on public notice and Inquiry of the matters contained In the Cross Easements and Options Agreement. All rights of Olympic Realty, Cumberland Partners, and Kmart as it pertains to the cross easements between the Parcels and specific options granted in the Parcels to Cumberland Partners are governed by the terms of the Cross Easements and Options Agreement as it may be amended from time to Lime, 2. Counteroart . This Memorandum of Agreement may be executed In several counterparts, each of which shall be fully effective as an original and all of which together shall constitute one of the same instrument. boor, 526 PACE 515 !IV R7TNESS H7fL&R60F. ttte parties have executed year first above written. tills Agreement on the day and Attest: eere tary OLYMPIC REALTY AND DE'VE P CO RP OH By: Preside Witness: . rte.. Attest: f =_ -- Seeretary IUMBERLAND PARTNERS ey' /brrind .? ?w Cc?lxrrac<u V.Ga. .ts.r? K•hLaRT By: Ycu President cc vs _c ra c: 3 ra '• 1 t,n u 1- eoox 526 PACE 5113 ? • 146VCMLYM1C?m1 rYJnIIIM COMMONWFALT74 OF PENNSYLVANIA . COUNTY OP Q 4?1„? ss. On tirls, thel t_! Ldsy of_n,,iat ,- 7,995, before me, a Notary public, personally appeared David I. Schwartz who acknowledged himself to be the president of Oly nple Realty and neveldpa ent Corporation a New York Corporation, and that he as such President being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the Corporation by himself as President. IN FVITNESS W.YF-REOF, I hereunto set my hand and official seal. Norm My Commission Expires: (SEAL) Sri L,'y, BOOK 526 PALE J:L? T COMMONWEALTH OF PENNSYLVANIA : u. COUNTY or De 14?.ae t- On this, the JL4.day of l) fpLg^ , 1995, before me, a Nota publl ri S personally appeared _ hI„ I(i n G ?r i ov: nc o, who eclmowledged himselftberself to be the Prestd&, 'e of Dra..lyyv;.ae Ce rpse?.r,.w? c;ea.e y.r •P,,•f.,. of Cutuberlahd Partners a Pennsylvania limited PartnershIp and that he/she as such lice }I4^ts idea7-bcing authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the Corporation by himsel"erself as Vic, pre c i de ,.t IN rI77'NESS H?fL•RL:OF, I hereunto set my band and official seal. No Public My Commission Expires: (SEAT.) " bf y I.?.. NOTARU cEaa •f .IMJET I.pNNSeta mwey Pu c. Y a4m4'.a+a a«onT }-- i ., W6 •."sty5?' 000r, 526 PACE 51.8 STATE OF MICHIGAN COUNTY OF ®Ct elQr?t? ss. On this, the a day of • ? 1995, before site, a Notary Public, personally appeared who acknowledged hlaaelf/LeraelE- to be the ?nlo'r Old n24. of 1Gnart a Michigan corporation, nod that' Sc/shcr as such Svw P? 044 -25• being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the Corporation by himself/bersel[•aa epnio•r I)ta: Pfegider,4- !N WITNESS VaLEREOF, I hereunto set my hand and official seal. otx ublic -- tV My Commission Expires: (SEAL) , a r• • ?4£t%aicr s VICTORIA L. 808KHOU7 Notary Public, hwcmib Ceunry, Mid,. Acting In Oakland bm,ty My Commitaion tRIAM p S,ryL Id, L"?7 BOOK 526 PACE 519 EXHIBITA TO MEMORANDUM OF AGREEMENT (the "Agreement") INDEX I . Capital Products Parcel, Exhibit A-1 2. Kmart Parcel. Exhibit A-2 3. Site Plan, Exhibit A-3 The cross easements referred to In Paragraph 2 or the Agreement To Provide For Cross Easements and Options granted by Olympic Realty shall be a blanket nonexclusive, perpetual right and easement for the benefit or Cumberland Partners, as the owner of die Kmart Parcel, Its successors, mortgagees, employee, tenants and customers of tenants for pcdestrim and vehicular ingress and egress upon and across the walks and driveways (excluding parking) of the Capital Producu Parcel having ¦ Beginning of Access Easement as shown on the Site Plan. The maintenance r"POnsibilltiea of Olympic shall be within the First Cross Easement and Second Cross Easement as further described as Olympics Maintenance Obligation Area on die Site Plan. 4. The eight (8) sere parcel as reilereneed in Recital H of the Agreement has been reduced to five and 66/100dis (5.66) acres and described In Exhibit A-4 and located on the Site Plan as Lou 2 and 3 respectively. 5. The First Cross Easement located on the Site Plan Cl. Tito Second Cross Easement and located on the Site Plan 7. Option Parcel, Tract 1 referred to as Exhibit F and Option Parcel, Tract 2 referred to as Exhibit O are consolidated as a three (3) acre cruet described as Exhibit F and located on die Site Plan as Lot 3 S. Option Parcel, Tract 3 fonnerly described as Exhibit H is now . two and 661100tlis (2.66) acre parcel, described as Exhibit O and located on the Site Plan as Lot 2. .:k.tanns BOOK 526 PACE 520 EXBIBIT A J GAL DRSGRiir ON All those certain two tracts or parcola or land situated in llumpdon Townallip, Cuinbarland County, ponnaylvania, bounded and described as follows: Tract No. i Eaginning at a point on the southern right-or'way 11n6 of the Carltala Pike (U.S. Routn 1,t, S.R. 0011) said point being located on the waatarn right-of-way line or an unnamed and unopened fifty foot (30f) .=treat, thence from said point of Beginning, by said western right-or-way line South two degrees twenty five minutes twenty two seconds Went (d 02' 25' 22•' W) a distance of four hundred twenty coven and eighty four one hundredth rest (427.840) to a point on the northern right-of-way line of an unnamed and unopened fifty foot (501) street: thence by said northern right-of-way North sixty five degrees thirteen minutes and zero eaeonda West (N 65. %S- 00" A) a distance of one hundred twenty two and fifty one hundredths feet (122.501) to a point; thence by land now or late or Nab Enterprises Inc. North twenty nix degrees six minutes twenty seconds East (N 26. 061 20" E) a'distance of fifty and ninety three one hundredths feet (50.939) to a point; thence by the came North two dagraes thirty two minutes taro seconds East (N 02' 3240064 E) a dintance or.two hundred seventy nix and thirteen one hundredtthha feet (376.13•) to a point on the Southern right-of way line of the Carlisle Pike; thence by the southern right-of way line. or the Carlisle Pike, by a curve to the left, having a radius of eleven thousand five hundred nine and nineteen one hundredth feet (R= 11,SO9. 19"), an arc length of one hundred one and four one hundredth feet (h/L= 101.044) to a point, the place of Beginning'. Said tract contains 40711.41 Square feet or 0.9254 acres. Tract No. 2 Beginning at a point an the southern right-of way line of the Carlisle Pike (U.S. Route 11, S.R. 0011) said point being located on the eas tarn right-of-way line of an unnamed and unopened fifty foot (502) street, thence from said point of Beginning;, by said southern right-of way line of the Carlisle Pike, by a curve to tha left, having a radius of eleven thousand five hundred nine and nineteen one hundredth feat (R= 11,509.191), an arc lang?h of twenty* eight and seventy three one hundredth feet (A/L= 20.72+ to a point; thence by the name South sixty three degrees fifty eight minutes nineteen seconds East (0 63' 58. 19" E) a distance of Seven hundred ninety two and rirty two one hundredth feet (792.52') to a point; thence by land now or late of Cumberland Partners South twenty six dagrnae three minutes thirty four seconds West (a 26' 03' 3411 W) a distance or nine hundred eighty four and sixty nix one hundredth feat (904. 66-) to a point to a point;, thence by the memo South seventy four degrees six minutes forty occands Best (8 74' 060 40" E) a distance of one thousand seven and.thlrty four one hundredth feat (1,007.344) to a concrete monument; thence by land now or late of Twigg Family Trust South zero do roes nix minutes boor. 52G Put 521 hundred twenty sixdand fifty threeO One hundredth dLeetnce 53 tt;r`e an iron Pips on the line of land now or late of the United States or America (DCfenc° blstribution Region Sant); thence by land now Regi nt eE st)t North i seventy ttleve degrees ninoafanea Diatributicn three seconds Wenadt (H 75' 09' 53" W) a distance or tone thousatlQitypy hundred nix and nighty one one hundredth foot CM 063; t? to a ze Concrete ro minutes a monument, sevent sa onds He (Wvene ,, .47 eqW) °e distance of one twenty nine and fifteen one hundredth fact (211.13') to a re-barn thence by the came South two dogr_aes thirty. nine minutes twanty three seconds West (a 02' 39. 23'• 9i) a dlbtance of to a one hundred forty six and ninety eight one hundredth fact (116.na•e thence degrease threeeminUt¢a n nod fifteen bsb othe ndsaWest North nighty sigh distance or five hundred twenty eight: (N a H• 03 IS W) e hundredth feet (529.79•) to a concrete monumeand aevent nt; thence b nano one n or o of ine minutes an height eniseconds NWest N sit so even degrees fifnow ty of two hundred sixty six and nix one hundredth toot (266 od-)ttoocp concrete monument; thence Sy land now or late: of overnite Transportation Company North twenty five degrees rift y three minutes thirty three seconds East (it 2S' 53•';3" E) a distance of eight: hundred fifty seven and twenty five one hundredths feet (057.25') to a point; thence by the came North sixty five degrees thirteen minutes and zero seconds West (N 65. 131 00" W) a diataneo oL seventy three and forty three one hundredtho feet (73.43•) to a Pointi'; thence by the same North twenty five dagrnas fifty three minutes thirty threa seconds Eset (N 25' S3# 33" E) a diataneo, of four hundred ninety nine and seventy coven one hundredths feat (499.77•) to a Point on the southern right-o£-way .line of an and southern right oL way South sixty five 0degr es street, thirteen minutes sand zaro seconds East (a 65' 13' 00" E) a distance of one hundred sixty four and eighty three hundredths feat (164.041) to a point; thence by the eastern right-of-way line of an unnamed and unopened fifty foot (509) street North twenty four degrees forty seven minutes zero seconds East (N 24' 47' GO" E) a )d)istance of sixty nine and one came North eventwo degrees edths (69.t7' to a Eas twent'ynt o teaco)1da East (N 02'-25- 22" E) a diataneo of four hundred five and twelve one hundradths feat (406.121) to a point on the aouthovn right-of way line of the Carlisle Pikef the plaee•of 8aginn1n7. Said tract contains 36.5619 acres. 0004 52-6 PACE 522 EXHIBIT B, LEGAL DESCRIPTION FOR K-MART PARCEL JANUARY 5, 1995 All that certain parcel or tract of land nituate in Hampden Township, Cumberland County, Pennsylvania,' as recorded in the office of the Recorder of Deeds for Cumberlantl County, Pennsylvania, in Deed Book e29^, Volume N page 0960"t more particularly bounded and described as follows to Vitt BEGINNING at a point on the southern right-of-way line feethcastr of a the Pike intersection RIUCI 11) let: of the eastern rightio=-way18 line of Wingate Drive with the southern right-of-way line cf the Carlisle Pike (U.S. Route 11); Then along the aouthern right-of-way line or the Carlisle Pike (U. S. Route 11) South 64 degrees 41 minutes 45 second' Beat 370.00 feet to a point; Then South 2S degrees 19 minutes 1S seconds West 218.10 feet to •a point; Then South 64 degrees 41 minutes 45 e,cands East 334.98 feet to a point, Then South 00 degrees 38 minute, 15 seconds East 655.00 feet cc a point; Then North 74 degrees 52 minutes 00 seconds Hest 1007.34 feet to a point; Then Noveh.25 degrees 18 minutes 15 aecondS East 985.01 feet to a point, THE PLACE OF BEGINNING. BOOK 526 ?ALE 523 • l? • N'./'I ?f NM I.Mw •Y<Ir • <r 1.'..•< 1YY C.hiplt C C.pltPl Product. C Mcc<clnn NaroGcn To.m<h!P. CoPp«1anE Co. BOOK 520 PAGE 521 Capitol Products Cotpor-stlan, a Pennsylvania b•Wriess corporation, as the legal L, holder of the Capital products Parcel located in Ifampdett Township. Cunshedand County, Pennsylvania, mote particularly described in F,,,bit A-I attached hereto, Olympia Realty 6c Dovelopment Corp., a New York corporation, and H.C. Holdings Limited Partnership, a Pennsylvania IImlted partnership, hereby acknowledge that each of them has read and reviewed the Cross Fasemeae and Options Agreement and hereby consent to Clio recording of (I) the Declarations of Reciprocal Easements and Restrictions for the pint Cross Pasement and Second Cross Easements; and (2) Memorandum of the Cross Basements and Options Agreement, and that such Instruments shall constitute easements running with the land described In Zxhibit A-I attached hereto, in accordance with die terms and conditions contained therein. It Is the Intention of the parties hereto that subsequent to the recording of the above-referenced instruments, a declaration of condominium of Hampden Commons Condominium shall be recorded, which declaration shall reserve unto the declarant or its successors or assigns, !IM. ht to w' d w -lot 2- and the Prelimin respedtlvely m shown a cry/Final Subdivjiion and LandDevelopment Plan of Hampden Commons, dated October 19, 1995 and recorded in the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 72, page 50 , from, the condominium in order to cony v the same to Cumberland Partners, or its successor: or usigns If Cumberland Partners, or its successors or assigns exercises its option to purchase such Iand. -Notwithstanding the (oregoing, said Ins WmenCS shall be binding an Capital Products Corporation solely for the purpose of subjecting the property described in Fa hibit A-1 attached hereto to said Instruments, Capitol Products Corporation assumes no other obligations of Olympic Realty contained in said instruments. CAPITOL PRODUCTS CORPORATION Dated: ??/fY?y? By- Its' ///!G ??I/!? /?- IIaVN.I 800K 526 PACE 5;->5 JUN. V. 1996 S'2rpt1 ]OSEFl1 N GRy,,M, PA NO. 5O9 P. 2/4 OLYMPIC REALTY dt DE VELOp,,.MN'T CORP. Dared:. 7_ 30" c2?. rF ? by; Its: L-014, H.C. HOLDINGS LIMITED P?I 3 y t Q Oc 0r Xa a r/c•n/ Dated: Dy: V Its: r- CO'14MONWEALTFI OF PENNSYLVAvD; COUNTY OF On this, the / dray of?7raJ1 ?'? 1996, before a No ?? tary public, the undersigned officer, pcnonally appeared ? who acknowledged himsel&hergelfto be the _1? P ? s- of Capitol Products Corporation, the foregoing corporation, and that he/she "such__.. /?• 7`jL_ J?v being au03orlzcd to do so, executed the foregoing Joinder for rite purposes dterefn contained by signing the name of the corporation by himself/herselfa, Lli-. / A- .- ^./ .<..- IN WITNESS V-7-MREOF, I have hereunto set myhaod and official seal. My COMMISaion Expire.: ? ?// ,yyy BOOK 526 PACE ;>G JU . 5. 1990 21 z6M JOSEPH W GAY W- PA (40.509 P. 414 Con1PldJtvEN/JH CTF /•GN11sSyL l1//1t1/i7 G COUNl'YOF On this, the ?C ff daYofd 1996, before n No tary FubLLe, the undersigned officer,personallyappeared ?11.c? t ..Sc.fi 4.?,?/tz_ who aalrnowledgad hirasalf/horxifto be the of Olympic Realty do Development Corp„ the foregoing eorporatioo, and that he/she as such /,. , 7 , being authorized to do so, executed the foregoing Joinder for the purposes therein contained by signing. the name of tlA corporation by himsel£Jberaalf as /'jtPS. % ??o ., J'! sAt?„sfiwtt(' IN WITNESS WHEREOF, I have, bem=to set my My Commission&xpires: NorA/1lurut 11 ?(rY PA DAMI eWARSOU1tO U m MT COMMISSIONEXPIRESMMOI fm COMMONWFIALTH OF PENNSYLVANIA COUNTY OF 7! 19v PAI //? -On this, thc,_(JL_ day ofQ--?b ofLeer, pcrsonA nppearad,1_ Rasil•n? Fd to be the partnership, and that he/sheen such 1996, before a Notary public, the undersigned being authorized to do so, executed the foregoing Joinder for the pWosa therein contained by signing the nerve of Ps i?en ?" The corporation by hirruelf/beraelf as IN WITNESS WHEREOF, I have hereunto set ray h and official seal Notary ublie My Commission Expires: 5 ' ,4 Awe eESORNR tC?1(oo' cot NaEK RespN E]?IPImMINpal Prate M,..Orrf.nlYai,da 8001( 52G ?ACE 5a7 c EXEMBIT A-l ' LIZI+A l? 1)1LtiCRi ?Q? . All those certain two tract-3 Or parcels of land situated in '(iam.pdcn Township, Cumberland County, Pannaylvanin, bounded anQ deeeribed as roliowss Tract No. i Beginning at a point on the southern right-of way line of the Carlisla Pike (U.S. Route ia., S.R. Ooil) said point being loeatec on the western right-or-way line of an unnamed and unopened Lirt) foot (501) street, thence from said point or Beginning, by said western right-of-way line South two degrees twenty five minutes twenty two seconds West (a 02. 25' 22" P) a distance Of four hundred twenty seven and nighty four one hundredth teat (427.941) to a point an the northern right-of-way line of an unnamed and unopened fifty foot (5o') street- thane. by said northern right-of-way North sixty five degrees thirteen minutes and zero seconds West (N as- 13' oo" W) a distance of one hundred twenty two and fifty one hundredths feet (122.50') to a point; thence by land now or late of MG8 60aondd Enterprise=(N 26r' 06 North 20 twenty six a of fifty and ninety three ona hundredths feet (50.9]') to a point; thence by the came North two degrees thirty two minutes zero aecond9 East (N 02' 32' 00" E) a die tance of.two hundred ccvcnty aim and thirteen one hundredths feet (376.13') to a point an the southern right-of way line of the Carlisle Pike; thence by the southern right-of way line. of the Carlisle Pika, by a curve to the left, having a radius of eleven thousand five hundred nine and nineteen one hundredth feet (R= X1,509.191), an arc length of one hundred one and four one hundredth feet (A/Le: 101.04') to a point, the place of seginning. Said tract contains 40311.41 aqua r0 feet or 0.9254 acres. Tract No. 2 Beginning at a point on the southern right-of way line of the Carllale Pike (U.S. Route 11 S.R. 0011) said point being located on the eastern right-of?way iina of an unnamed and unopened fifty feet: (50 southern 'light-or way line or the Carlisle tP-of ike, by na curve to sthe Taft, having a radius of sloven thousand five hundred nine and nineteen one hundredth feet (R= 11,609.191), an arc length at twenty eight and seventy three one hundredth root (A/L= 28.72 i)) to a pointl thane by the same South aixty three degrees fifty oight minutes nineteen aeconds East (a 63' Se- 19" E) a distance of Bevan hundred ninety two and fifty two one hundredth rent (792.521) to a point; thence by land now or late of Cumberland Partners South twenty six dagreec throe minutes thirty four ceconda west (B 26' 03' 34" W) a distance of nine hundred eighty four and sixty six one hundredth feet (964.661) to a point to a point) thence by the same South seventy four-d6green nix minutes forty aeconds East (s 74' O6' 40" E) a dlatnnce of one thousand seven and, thirty four one hundredth feet (1,007.34') to a concrete monument; thence by land now or late of TWigg Family„Trust South zero dogroes six minutes eoox 526 PAcr 528 thirty four seconds Want (a 00' 06' 34" W) a distance of thraa hundrad twenty six and fifty three one hundredth fact (326.57:) an iron pipe on the line of land now or late of the united Stateto s Ame (De or late ecc thfeence United DistributiSt of Region Americar t(Defence thence Distrland ibutlon Region East) North cevanty five degree= nine minutes and fifty three seconds West (N 75' 09:.57" W) a distance cf one thousand two hundred six and eighty one one hundredth feet (1r2o6,39/) to a, concrete monument; thence by the aama•)(orth seventy rive degrees zero minutes and forty seven seconds Went (N 76' bo• 471r W) a distance of one twenty nine and fifteen one hundredth feet (29-SS:) to a re-bar; thence by the same South two degrees- thirty nine minutes twenty three seconds West (e 02. 79: 23" W) a diatance or hundredth toe a uconcrete fort onu onto thence eight the one came root eighty height degrees three minutaa and fifteen seconds West (N 0a' 03' 25:' W) a distan=t of five hundred twenty eight and seventy nine one hundredth teat (520.79 r) to a concrete monument; thence by land now or late of Dauphin Distribution North, eighty seven degrees fifty nine minutes and eighteen seconds West (N 07' S9r.16rr 9;) a distance of two hundred sixty six and six one hundredth Coat (266.06:) to a concrete monumant; thence by land now or late or ovarnita Transportation Company North twenty five degrees fifty three minutes thirty three seconds Eatt (N 25' 53:'33:' E) a diatance of eight hundred fifty seven and twerity five one hundredths feet (057.250) to a point; thence by the name North sixty five degrees thirteen minutes and zero seconds West (N 65' 13: ooe W) a distance of seventy three and forty three one hundredths feet (73.43:) to a point; thence by the came North twenty five degrees fifty three minutes thirty three seconds East (N 25' 53: 37:' E) a distance of four hundred ninety nine and seventy Cavan one hundredth= feet (499.77') to a point on the southern right-cf-way line of an unnamed and unopened fifty foot (500) street; thence by said southern right-of-way south sixty five degrees thirteen minutes and zero seconds East (a 65' 13: 00:: E) a distance of one hundred sixty tour and eighty three hundredths feet (164.04:) to a point; thence by the eastern right-of-way line of an unnamed and unolioned fifty foot (500) street North twenty four degrees forty =even minutes zero seconds East (N 24' 47: 00" E) a di=tanca of sixty nine and fifty seven one hundredths feet (69.S7:) to a point; thence by the name North two degrees twenty five minutes twenty two seconds East (N 026-25: 22" E) a distance of Cour hundred five and twelve one hundredths Coat (4as.12r) to a point on the southern right-.C way line or the Carlisle Piker the place•oC Deginning. Said tract contains 36.5619 B00K 52(i PACE 5p.) -r a+n o/ Ponnrylve nia TT SS •nrtv of Cumberland J ?uOu In mo office for the recording of Dewk n Ind for Cumberland CoUn1f Pa. •&P_Gao&GhL vol. Paa?/4 .•+•^:c my hand soma of ofac of .:.+1rla,PAnUCdayof? R ryL Exhibit C "W orncci, ar WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP OFFICE COURT AT WALTON POINT cNUMJ$rorAJ:N 404 NORRISTOWN ROAD - SUITE 100 PM P.",IUn OAWO M. J0110M1 PA 10422-2020 BLUE DELL 's«''«' s,ASOnAkn , 140HA"O A TAI c AN011GW s. eANTM _' ' (010) 026-0400 1«s1«s _ YICIIA6L J. OOONOOHUC Mlpwcl. L OItYONT FA" (610) 020-4007 OP eounseu WIWNIL WIOiiU"O MTMONO PGnI Mc JAM" J.OARIIITY CAS51N W.OMIO OCOFi"CY L iEAMC1UMP•• TIIONAS M. OM,IIw "ONNLTI A 11000 JoscPN M. IIMIUT June 28, 1999 -AUao lrA.ec11 MASON A" MM4 J". WASNig101t DO AND AMYP."i110N0 Ng MaN NCNNCM O. iPANO 111 il£"N:N M. ME MIgNlI O. NnISTOP00 MMK A NOSTENYAN fWtIA ERIIOOT Olii011i AOi11N M. O'OON Mc MAIIOMET J. ?ANGTUPANO MN'Alei r e NAWs "Ip1UNc Mr. David Schwartz Olympic Realty and Development Corporation 415 East 52nd Street 47th Floor, Suite AC New York, New York 10022 Ronald M. Lucas, Esquire Eckert Seamans Cherin & Mellott, LLC P. O. Box 1248 Harrisburg, PA 17108-1248 Re: Cumberland Partners /Olympic Realty and Development Corporation /K-Mart - Agreement to Provide For Cross Easements and Options Dated 12/21/95 Dear Messrs. Schwartz and Lucas: I am writing this letter on behalf of Cumberland Partners, a Pennsylvania limited partnership, pursuant to the Agreement to Provide For Cross Easements and Options dated the 21st day of December, 1995, by and among Olympic Realty and Development Corporation, Cumberland Partners and K-Mart Corporation (the "Agreement"). The Agreement was the subject of a Memorandum dated the 16th day of October, 1995, effective as of December 31, 1995, by and among Olympic Realty & Development Corp., a/k/a Olympic Realty & Development Corporation; Cumberland Partners and K-Mart (the Memorandum of Agreement). Cumberland Partners hereby exercises its right of option as set forth in the Agreement. Pursuant to the Agreement, Cumberland Partners is hereby delivering written notice to Olympic Realty of Cumberland Partners' intent to exercise its option to purchase what was defined as Tract 3 in the Agreement but is now known as Lot 2 as defined in the Memorandum of Agreement. Pursuant to the Agreement, Cumberland Partners hereby gives Olympic Realty thirty (30) days prior written notice of its right to exercise its option to purchase Lot- 2. EXHIBIT "C" WISLER, PEARLSTINE, TP NE, CRAIG, GARRI'TY & POTAF LLP Page 2 June 28, 1999 Cumberland Partners is obtaining an updated title insurance binder. Pursuant to paragraph 7(c) of the Agreement, Cumberland Partners hereby gives notice that its employees and agents shall access Lot 2 in order to perform such reasonable tests and studies, if any, as are required in Cumberland Partners' sole discretion. Cumberland Partners hereby agrees to indemnify and hold harmless Olympic Realty from any damages or injuries which may result from the actions of Cumberland Partners, their employees or agents in connection with such tests and studies. Cumberland Partners shall pay $50,000.00 an acre or a total of $133,000 for 2.66 acres comprising Lot 2. Settlement shall be held in the offices of Lawyers Title Insurance Company, Two Penn Center Plaza Building, Philadelphia, PA on or before -the 22nd day of October, 1999 at 10 a.m. We will advise you as of the exact date of settlement and will enclose the proposed closing documents at that time. Sincerely yours , AEL J. CLEMENT MJC:cbg cc: Cumberland Partners, Attention Mr. Phillip C. Giovinco Exhibit D ECKRRT SEAMANS CHERIN & MELLOTT, LLC 213 Markel Sireer D.glldr n,Mr Harrisburg. PA 17101 AMmss earmspaudenre 1a: Pats 09;rr &x 1248 HnrrisW y, PA 17108.1248 'f lephaur: 717.217.6000 Faainlite: 717.217.6019 unlanesnu.ram Harrisburg Pills) 'Wh /A-snm Fort Lmderdalr Philadelphia l*sIm vu. NI Ltnshigiom, D. <;. ECKEKT SGAMANS arose'., . 1851177.1 July 7, 1999 Certified Mail Return Receipt Requested Cumberland Partners Attn: Phillip C. Giovinco c/o Brandywine Group P. O. BOX 500 Chadds Ford, PA 19317 Michael J. Clement, Esquire Wisler Pearlstine Talone Craig Garrity & Potash, LLP 484 Norristown Road, Suite 100 Blue Bell, PA 19422 Re: Cumberland Partners - Olympic Realty and Development Corp. Hampden Commons Cross Easement and Option Agreement Dear Messrs. Giovinco and Clement: We received your letter of June 28, 1999, addressed to Mr. David Schwartz and myself. As I stated in my letter of April 20, 1999, to Mr. Clement, a copy of which is enclosed, Olympic Realty has determined, in its sole discretion, that the remaining property is needed by Olympic Realty for the development of the shopping center. Therefore, there is no land left to sell to Cumberland Partners. Please call me if you have any questions. Very yours, i Ronald M. Lucas RMG:dhk Enclosure c: Joseph W. Gaynor (Via Certified Mail) David J. Schwartz (Via Facsimile 212-753-8937) Ronald M. Lucas 717.237.6026 ERIiLBIT "D" rinl@?=m.com Exhibit E PAY. d. 199e S13PN :oSM4 W GAYNOR, PR No.ea;r--'P.2/5 10 -go -l8yo Pals .? 9, a?B, aae a5; • CfEf17 1'. Z1fGl.?R ' 1!ZOOD[PggO??F DDEeDS fgtr??,g?iLITY-FA M ?f? '9o A u 6 H(7 8 ,4g MADE the 3 day of in the year of our Lord one thous hundred and d ninety-six (1996) and nine (((11ETWEEN 11. C. HOLDINGS LIMED pARTNXMMp, a Pennsylvania limited partnership, GRANTOR AND CUMB)vRLAND PARTNERS, a Pennsylvania limited partnership, GRANT@E, t.. WITNESSETH, that in consideration of Ten and NO1100 ($10.00) DOLLARS, In hand paid, the receipt whereof is hereby acknowledged; the said Grantor does hereby grant and convey to the said Grantee, its successors and assigns, the following described property to-wit: PennsylvaniaL be, being Lott 3 asho4-act of wn on ad Plan eIn Hampden ntitled Preliminary/Ftnal Subdivision do Land Development Plan for Hampden Commons dated October 19, 1995, last revised May 24, 1996, and retarded in Plan Book 72, Page 50, Cumberland County records, more particularly bounded and described as follows, to wit BEGINNING At a concrete monument at the southeast corner of lands now or formerly of Cumberland Partners; thence along lands now or formerly of Twigg FAmuy Trust, South 00 degrees 06 minutes 34 seconds West, 311.02 feet to a point on the northern right-of-way line of a bicycle path and pedestrian walkway, Also known as Lot 4, now or formerly of Capitol Products Corporation; thence along the northern right-of-way line of Lot 4, now or formerly of Capitol Products Corporation, Notch 75 degrees 09 minutes 53 seconds West, 499,84 feet to apoint Chance along the dividing line between Lot 3 and Lot 2, North 26 degrees 03 minutes 34 seconds East, 313.42 feet to a port; thence along lands now or formerly of Cumberland Partners, South 74 degrees 06 minutes 40 seconds East, 359.84 feet to a concrete monument, the place of BEGINNING. CONTAINING 3.0000 acres, BEING PART OF THE SAME premises which were granted and conveyed unto Capitol Products Corporation, a Pennsylvania corporation, by Deed Book 1-23, page 267, Deed Book A-30, Page 136, Deed Book K-22, Page 17, Deed Book C-20, Page 72, and Deed Book M-25, Page 359; and lone!, Inc„ a Pennsylvania corporation, by Deed Book 14-15, Page $43, Deed Book N-16, Page T-??d 13a4?1 y3 -93y MiniT got ^^,1^ •1 ^ .."IM,nuuvc nu aT.in ?nt oa_cn_rWrl MAY. 4.1998 S: 13P11 OSEPI4 W GAYNOR, PA U' .NO.Sa4-P.3is 565, and Deed Book R-15, PbZ6 212. The said Ionel, Inc., together with El jon Metals Co., Charmador Corporation, Motor Lease, inc., and Capitol Products Corporation, all being eorporadoos organized and existing under the laws of the Commonwealth of Pennsylvania In compliance with the requirements of Article IX of the Act of the General Assembly of the Commonwealth of Pennsylvania kn own as the "Business Corporation Law" approved May 5, 1933, as amended, filed Articles of Merger with the and recd ded in said oazfficcee of the Departmentae In Commonwealth Coomorad Pennsylvania Bureau records Ro11 3-1-55.29, Films 727 to 734 inclusive, and pursuant thereto the Department ofSrate, on o:xober 19, 1955, Issued a Certificate of Merger evidencing the merger of said cotporatlons Into and with said Capitol Products Corporation, the surviving corporation; said Certificate of Merger being recorded in the office afsaid Department of State In Corporation Bureau records Roll 3-1-55.29, Film 735, And pursuant to Bald Articles of Merger and the said Business Corporation Late of the Commonwealth of Pennsylvania, the tract of land herein conveyed became vested in the said Capital Products Corporation, the surviving corporation, without further as or deed, Grantor herein, BY Declaration of Condominium ("Declaration"), recorded In Miscellaneous Book E2(b Page r. , Capitol Products Corporation and Olympic Realty & Development Corp., as joint Declarants, created the Hampden Commons Condominium (`Condominium'). Under the Platt and Plans for rho Condominium and the Declaration, Lot 3 is shown as withdrawable real estate, By Assignment of Declarant Rights, Capitol Products Corporation and Olympic Realty & Development beclarant, assigned cotheir Joint Declarant rights to rded (Visallanecus Book a , Holdings By Partnership, to Withdraw Real Estate, H. C. Holdings Limited Partnorsh p, sole Successor an Amendment Declarant, has amended the Declaration and withdrawn Lot 3 as recorded in Miscellaneous BookE2?0 Page 4 51j AND The said Grantor Will Specially WARRANT AND FOREVER DEFEND the property hereby conveyed. IN WITNESS WHEREOF, the Grantor has caused this Deed to be signed by its General Partner, Brondle Boulevard Corporation, on the day and year first above written. H. C. HOLDINGS LDMIEDPARt'NERSf W ATTEST, (Asst.) Sarre y By: Brondle Boulevard Corporation, a Peansylvaria corporation, eral Partner By: woo (Vice) -Fiesid n... nn. nnnu.. -nn u. nunun it, n-r. an nni nn nn-lull MAY. -4.1998 S*i4Pti k:PN W CAWM. PA NO. M4"-P.4/5 STATE OF ?. i o t- / 1ra- n : CC- COUNTY OF .On this, the"?fh day of A.D. 1996, before me, a Notary Public, the undersigned officer, personalty a peared Who acknoWledged himselfllwesel&to be the Once) president of BRONDLE BOULEVARD CORPORATION, the foregoing corporation, General Partner of H.C. Holdings Limited Partnership, and that as such, helaitet being authorized by such corporation to do so, executed the foregoing Deed for the purpose therein contained by signing his/her-name thereon as such, IN WITNESSWHEREOF. I hereunto set my hand and official seai. OT Y PUBLIC My Commission Expires: =04 P pp?g?ry pA 1 i I EEREBY CERTIFY, tha t the precise address of the Grantee is: _ P- 6, 60y' '5e c 62i,&aV-s gf-d M- (47,31-7 Attorney or Agent for Grantee __..„ .. ,,,,,,,,,,,,,,,,,, ,,,u an, n.n an.nunui I -iutu,nuumn nu nT In 9ni oe-nn-nat Exhibit F' pool ?•,•yf J N DBCA MTS0l1 or FFIAagMitl This DoplaSA U011 Of EnOemant mA9Q thi3 6th 1 day oz,, Odtober', 1969 by FhUZL ASSOCYATCS, a : jainb'. Vonbura °onOiGtiag of 1fARV=CB AG80C7J+TA8, a general I J If partnership and PBTBR L. ISVINZ (herainaftor callo4 ` ?? °DOOlarant?), • 1 !I ` WFMRSF•5r ACC1a?ant is the owner of two • , 1 , 1 contiguouA parcalo of real Dronorty, situated it, tho•' , i'own G; Hoapdon, Cumberland County, State at Panneylv?tn£a; dcaoribed aQ follows? ' 1 I 1 "PA$Os77i Am ' 8eginninq at a pant on thalaoutherly right at way 1A>z0 Of parlielc Pilco (V• S. Mpt4 11) sod point 1?61hg 4,418 f9et nactorly kom the intaraoctio:: of the easterly aide of Wingate Drive with the said ooutheriy right of way lin4 of darliala pike (v, 66 Route 11) 1 , thenoe along the aoutboriy right or way line of Carlisle Piko (V, V. 7vwto 11) South 640 411 4fff Us t 970 leer to a point: thenoe south 250 101,151i I •'West 218,10 loot td a Point: thakga South 640 ) I, 411 45" zaat 56 i'uot to a point: thenoe south 2511, { 1a' 15" WdAt 57 feet•tO L polnL: thenoo South 660 i 411 4511 'east' 208 Eoat to a poAntl tbenOd COUth 256 •18' 15" Walt 223 Ra}t to a poitit) thdnot South GO 1,410 4511 Bait 45 tc96 to a point: thence, South 250' 181 151 Nosh 909.07 iaet'to At Point: thence Notthl 74° 321 g0' Hoot 6$S,D4 i'aot'to a point: thahae NoYth 25 181 15'1 Eas{? 985 foet to the point 0V i I1 Ylaae of bogibhing. i ', YIf ,r "1 I ,? IOU 187 race 758 i 'i EXHIBIT "F" 717.9759835 PRGE.003 FEB 18 '93 18:08 i n I I I , I 1 ; I I II ' i i I .I ; . 4rARCArr ny f St°zNe,iNV at' a Point on tlle.eouthorly right-o£-way line of carlialo Pika ((j. ,p, Rout• 14), said Point being 1619 feet fnatOCly troll the interfAq.tjo4 Of the eaetarly side o! Wingate br4vv with the said southerly right-of.way f carlialo Dike (u, s line of . hout• ili TtIR1acD Louth 250 18' 19" Waat 1326.53 foot tq A Polntf THENCE North 980 W l5" Woat 33.69 feet to t PoUt1 THENC3! North 790 16' 19" rsot 1333.10 fect to a Points b=LfCD South 64° 41' 454 Pact, along the eouthorly, right-ol-way 13na of Carlisle Pike (v, S. RoUthe 1,1), 33,0 fast to the Point or Of slave nDdYNlr7CNG, msaRFAB, noClarant hna improved puroal A by 1 aanatruoting thor•on a shopPlnq center known ea x-MART 1 PuEA dHt?ii'SNG CENTER, and ', I I WBDAEA3, Dealq=pnt owns additional Lando locate d,tp the south oP and abutting sold parcel A, ACefSS to whlah iu by the right-of-way'deeignatsd tiar•in rs I'araal a, Paid additiahel lands hiving are ! area of 0pp4Qx1 Atbly sight sores, and being a Portion of ho -23,425 4,x46 aoquirda i'rom Richard M. Cohon and i Jean Cehan, his wiser and Pater Lovino and .7anat R. , ,Lovlnc, his wife, by flood datod 9opt4q„bor 30, 14d0 and recorded October 28, 1968 In Dvfd Book,"all ,yvlump 22, PagO 756 in tho Otiioo of the Racorder of Dae4s of ' C=6:land county, PenncyivAnia, and WkL'Ar,t61 by Yv414on o: roetziotiona inpoaod by the Department of Nighuaya ce the Co 7onwaalyh of pe+ Aylvanl.s,, iT1 0rdCr to gain Accevv for the PurPoaes I °E in92e?a or ngaaia to And ;roan Parcel 8 it to nooegpary to Utilize the entrancawzy located on Pascal A leading to and from earl le r iky (u, s. Route 11), and mll Teo r it i .I ., r FEB'18 '83 18:05 , r. u4 p. a2 I ' I 1 ?i . I. 1 F? I 7179758835 PAGE.002 i I ' I I 1 r.. 4 I I t t ,. i l Ij t• i? 111' I t ?. I II } ?i i i1, I. i? ? 11 1 i r i I I hi'b W . Deolarant 40ir#4 t.WI 'the GaGemcht CrdAte64 end oata8lishcd herein an Parcel A clIall be a CovgnAnt to run with the Sand and ohall'inurm to th6 henePit of Parcul D and Declarant': additlOpal laada louakad to tbo aoukh 01 ohd abutting ?arcei At and be binding upon tba Declarant, its suctaeaora and asaignr,t t7oW, TA8steppgll, `Declarant, as owtjor Of parcel !o$ itae>.f And its cWco aaopa find assigns declaros ad tollowa, ' Declarant doca hereby oatablidh and creste. a,ld ' dooa hereby give, grant And convoy to each anQ every poraon, Jcirrn gr ooryorakivn hsreditcr owning rarcel 8, , dNd/or Daolarantla additional landc iodated to the south, OR and abutting pared At or any pq;tlon of cithor t'horoetl a nonexcluaiva aaremenC, UPOUer right and privilege of paaaaga and uaa, both pedestrian Cnd vdhieular for tho pcrpoae or innrset, and egraer to said AArcol a and n9alarant'a sdditioaal 1,41,140 looatod to rho >iouth of arid. ubuttin0 Parcel A,. ,into, upon Ahd ovor that pov, of parcol A now doaignakcal not aoldo and rsasrvod by the Deal"": ao the cntr4AC6W4y to ?araol A, A motes and 'bounds doseription OR euCh antranoeway being as followst, r , 9doK 18'y ?Aq 76'? F; 65 I I I I I+ i,1 t? { rr;' I? l? .,i I FEH 18 '83 18:07• 717;3759835 PAGE.004 1 i 1 I 1 I I j 1 t 1 i f I R 1 1 t .r 1 i 1 I Ii I x , l i l})} j ? r P I ti • .1 I - Yx IIIV rc,to lo-WRIOIA BLACK ABSTRACT , 'FAX N01,' 73372248 t P, 05 ? P-os , W • 1'x 1171.,'I•w„ •/I ,x ,l/11 II.I YI/x /,/, (,,.,, , 1 ' NNI.rHlxxs'•xl\wti'n x/.?n,MV/.bC..l Beginning at it Poin an the 1 I right Of way ,no 01 t hotcarlialt;p4kearn I (VI pe t of 1848,5 A foot Cast bOf the iattracotfch oI the Carlisio pika and Wiagato Driver thenco along aaid right of way line 8 040 41' 4Sa a a dietanoa of 199.0 Seat to a points thence through parcel A the f011gwing tour couraos and aintanaos 8 2$0 19r 15's it a aitltance bf 5.02 foot to a pointf thence on a curvy t0 the haft having It radiva of 954 faet an arc length of 11510 JIM to a yointl thence 3 290 16' 161' W A distance of 185.21 fast t4'a Fointl thence N 840 411 451, w a distance at 168.0 f4at to tho aastcrly line of Parcel as thonca along the dividing l 181 ino batween parcel A and parcel if N 250 thon4o11Again dthrou7'h PAroal A the followings} four e0ur99e and dxotAnooo 8 640 41, 4$11 A A dit?aeo Of 87.0 feet to A pai.ntt thence N 25' 18r 1511 D o distanoo oA ,13,5;21 Teat to a Dainty thdnoo oh a curve to tho jolt .w? havinq A rgdiuO of 9040 fact an are lonryt)1 1 Ot 307005 feet to a point; thenco y 250 ' l Point ei 15" a diatonoe of 10.69 Foot to a of the o carlLsle upikaI the plaod -Way lino boginning, The aaaoment, Slcanso, right ana yrivilogo nstablishtd, oreat44 And 9kAftte4 hgrgby ahali be for t the bona#it of and rcotricted solely to the eWner or oWAera All thi tike N y bey of fes simplo,titlo, from •' time to time of pArool P, wnd/or Aoclaran{ra additione! 2anda locatc4 to tha youth of and abutting paFoal A but 44Y 'Wnex may ;rant the bonefit of Ouch aa,acmant, licenear right nhd privilege td the tenants of aueh owner her or i hereattgr occupying Parcel 8 and/or . Daelarantes actditionu;' ],ands located to the south at and abutting par col A, ar any 11crt of cithar thoroot, for tho duration of aueh tcninoy L?,4nd to tho auotoraora, rmgloyooa, Agents; public invitoca , FEB 18 193 18,07'' 1 I ICJ.f51aA:'wGLS?'lflr?•G'PftE1T.?:.?.?_ ' 1 ?i f? t'o t i1 Ip '. t 7179759835 PAGE.005 r. Ud , I I 1 I I, ' I I 1,'1 and lieanaaea of acid tonante, but thu sarno i ' ` s not I lntendad nor 01,411 it ba Construed as crdatiAg any I t, I x19hts'Ln or for the bane£it of th ' o gonazal public, ;• ? I 'ihd pravieions oP this Daalaration'may be r( i abrogated, MOW1.0d, rasoindud•or Amonded in wholo or An part only with the consent of the then owner or ownors, as the case flay be, of parcel A, Daroal •d It sad Doclarant'a additional lands looxted t I o the eauth OR and abutting FArctl 1, and of each and ovary mortgagea' I? or bonericlary under any first nortgagd eovoring all or ; I oo Any past o4 Parcel A, Parcel 8 or Dealazant'? additional] ?rrI t lands Located to tha south of and abutting parcel A by ' Itt1 ((!! ' ddclatatidn in writing oulcutod and odcnowlaa as 4 by said` Ir( owner or owncre And said firsts novtgag'aas or first I bunetloLarioa duly raaorded in th¦ pkPice of tho RvcCYder in and for the county in which the aPoremantion(ad I ' ' DArcals A and a and Doolatant's additional lanor located' I ;!• to the south of And Abutting-Darcel A are locat,90 but j ; ' this declaration may not othexwiac ba abrogated, mudiflq'd, 1 Yoacodid or amandod in whole or in part, except as harALn+ ( after eat forth, Anything horei»bafore contained Es bha contrary I notwithstanding, at any Limo hordafton that the Da pxrt., ,moat of righways of the Carmotiwoa7th of'Fonnaylvania 1 i %:• or any aueoeesOr tho>;atp,porMits direct adosaa via Parcel 9 to and from Carlialo Plke (U.S" Rvute 11) this j oassment ahail taminata and como to an and ao eb*6 ? t 783 ,. , i 1 j FE8,18 '93 18108 71797'59835 PRGE.006 I I fl ?I IIA I I I I I i 1( I ' f kr I ! 11 1 I I f I I I i I 1 1 i I i i . .m nvi i,IJJIGG4c ( P '7 ,.I PIVX ,`L N •o1P+P+?+.r?4J..1«-Mlrq l+? i 1 I thereafter as is Practicable and faaaiblo i n 1il 111t or 1+ the required oonatruction, ooafpicL'ion and a PPrnval or? rll an ontranaaway to Farrel n, at CarIiclo Pike (U S 1 a 1 ll), . , outo X7 :, i I ?I At such timo horeaftor, as the 060lArant is not the roe title owner of both parcel A and parcel a And 4119 ownership of pNoh parcels is not in the epms partyj then in ouch 085e the audoeUor6 or aosigna of the neolarant to 900 title ownership of PUVO, A and/or Sarcol D, inoludinq, but not 11,nitod to a first hwrtgacoa'! which hold:: title to Paroal A or parcel k, as the calla MAY bet thxqugh forculcourA or through done takon In lion of fokoolosurel shall sharo tho Pont of ropair and ' maizltanalloc or tha hercinbefora daaoribcd ontranccway (including roadwaya, oucba, aidowalka, shrubbery And grasll) to 20x061 A In the manna as follower the than ! fee title 0671er Of PArcdl A ohali asaumd alhty (00.4) pexcont of such cost and the then foe title oV81ur qy Parcel a shall assums Forty (do%) paroant of Such coot, but, howevex, the than tea titlo ounar o4 F4ranl A. shall r•pA!v and alaintain acid aatranocway and :hall ba rnlrnburaod to rht oxtent of Porty (40.) poroont of the cent thereof by the then Zoo title owAot of Partial D. Thu, tome j covcnant6, oonditionn and prousaaa ' horain shall inure to tho benefit of and ohall be bind- ing upon the Declarant and ita recpaetive aucco6eoro -6. 60DK i, ? I'm 7G14 t I I i I I . II .? IN..I.11•H YNH??Iw1RTIT.a M1VN ?..,?Vp w.In1N?M1F,?M.p1,..+nMnl,w??M.Yn-,M +1.., , f(1 1 ' FEB IS 193 18:09 i.! If 1 / I ' rJ,{ J A ii i? ?It2 It s 7179759835 PAGE.007 I1? II I I i w II uv ,•nva(.- w nun' n WL va noou,nvl . r$9 • 1 i I i I , I I , I I? f i I I I rnn l+v, II Ivv yf ?w 4TATA 09 M YORK ) se,t ti COUNTY op MW VbAx) On tha 6th day of Oatobar•r x969 beforo bleb ' mar r a Notary 9ublio or' the at-t4 o NOW or , the undareignod otrieer, personally eppearcd MHA" x, COHEN'nnd HaRVAX SIZ134 "!rr known to )no to ba namb9ro of HARVRIOH A86OCMTr.8, 00 00- partnipr¦hip Ydentidned in tht within inatrument no One of tho joint venLurarar the nwna.og which partncrohip i6 evbsoribsd to the within instrument end they ¦ovorally, aoAnowiad ed to no that tha said co-partnership as Ong I 02 the joint venturers cxecuted the some Eor the purpocoo thol'ain contained, and,destred the neuao might be recorded „or euoh, a, tiO y is nvuss hthnAorr x horaunt.o set my hand t ' ? ? ?lSl?' ??o1a7. amnl, P, t? f .fie. :Ojd of C* I i i I , 6TA= OP HEW YORK ) ca,l COUNTY Op UAW YM) On the 6th day of ootob er ', 1969 baiorc mi, Vol; J, 6 hppb er r a Notary kublid of the Otato a! Hax s?arlr, the undaroiyned o#td.ocro personally appeared PF.M. L, LMUZ, known to ma to be one of tho joint venturers whose name is aubecribed to the within dnatnuleent and acknowl,edgod that he axecutod tho eamd for the purpws theroih oontainedr and dooirad that the blame might ba recorded as ouch, in W%TNR89 W FMOPI x horounto sot my hand al goal, , • "i ,5 t ro to ole l !w „•or(e AFB or NEW Yom ) ..40 TY Or NEl4 YO1tK) aa'r %v yoll, u.. vik On the day of October , 1969 bofore m4, Ohs r a Notary Dahlia oL the state tit iaJ. MAG1$' 0 uadarsi0nod 0:6 iear, pcrconally appeared aAR£T R. =V21M known to me •to bo ono of tho parsons whose name is oubecribed io th o within inet•rvmcnt and ackhcwleayod thel rho cxccuterl tha semo for the purpoeea thoroin eontainad, and desired that the same might ho recorded as such, eJ41Iq V •, i So •' 'l 0 '4-?0', ciN fi'YTUM WHERPOP, 2 hereunto dot Aly hand v'?"d?Yj Ij iCl eenl. I % n t M y I4 iyr`'??C??'•OgS, Nobrli? rie.Eptpe?wi?Rr rk ol,n?ro r:e,sV r'i?wrulx? Y 1, u d a :0 AI>i`>>(n Nu• ii1o ,?lr' i 1 I• , Iv6! A IY 71,:MU CnIInN aaUAGl•e,i In NY4 'wWGNll 600K ?.? r fA6E 1G 6 yR_rl?,? In NpN Yoll G.. Grya COr1. 111iM u, N.w Y?,L (u.. L'?ni FEB !8 '93 t8: y0 1 10;1 i • 5 I i i , t? ?i } 7LV9759835 PRUE,333 i , and aasiryns, Ilr?' SN WTZ4f?88 WttdRtOFs fL9xY5L A7ppGSATE3? a yoinC j !'• vonbVO' Why votuoutod this DOI.aration, by its -joint , .f. venburoXd tho day ahd year firoti abovd writton.• 1 RAAt'EA A NOIA1'H61, a joinb venturo aonoirtinq of ;BARVRrQH Assoomm, it ganpra2 partnership And PETHR Ts, LOV=J?. By I & Art= partntr art or r I ?j j ' ' and , At?2' R L. i'YYHF Peter 't LIV,$riq Janet A, Levinq r1 ., Exhibit G ':4 } ..IV a :g n'n r li unoe•7 n . ? ? ?` i ? '. . .. 7>Iie: 77611 ar7. a "? S• ?'' . W,u- • Q. w ,ry. Q i ? y^' r , ..r r A'Y'1'? ra Y,u Y:uwr A p, sl F K. L1 o-. .IPpt a ,? , pY YarYla •N d , rlY ? ? o ry Y IR i I Cc I I \ o i i rmi p ' i5 a t e "T i a- • J C ? i 0 z< y • N ?.. . wV?y 1 v,?y J J ?0•? ¢ N 1X \6 J J? x' 3. G.cx 3 -r re x ' .9 ay s ` ! 9 g 7 9 f ? Ta s 4 , + MICHAEL J. CLEMENT, ESQUIRE ROBERT R. WATSON, JR., ESQUIRE Attorney ID Nos. 20039/83787 WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road, Suite 100 Blue Bell, Pennsylvania 19422 Attorneys for Plaintiff (610) 825-8400 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, and HAMPDEN COn:".ONQ, CONDOMINIUM ASSOCIATION, a Pennsylvania non-profit corporation, Defendants NO. 99-5198 Equity . CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE 1, Robert R. Watson, Jr., Esquire, hereby certify that a true and correct copy of Plaintiffs Brief in Opposition to Defendants' Motion for Judgment on the Pleadings was served by first class mail, postage prepaid, upon the following: Mark D. Bradshaw, Esquire Eckert, Seamans, Cherin & Mellott, LLC One South Market Square Building 213 Market Street Harrisburg, PA 17101 WISLER, PEARLSTINE, TALONE, CRAIG,4;ARRI?TY & POTASH, LLP DATE: 10/5/00 MICHAEL J. CLEMENT, ESQUIRE ROBERT R. WATSON, JR., ESQUIRE Attorneys for Plaintiffs CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and II.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 CIVIL ACTION - EQUITY REPLY BRIEF IN FURTHER SUPPORT OF DEFENDANT'S MOTION FOR JUDGMENT ON PLEADINGS ARGUMENT Y. The Express Terms Of The Agreement Signed By Plaintiff Reserve To Olympic Realty The Right to Determine In Its Sole Discretion. Not To Extend The Option To Purchase The Balance Of The Eight Acres To Plaintiff. Plaintiff, Cumberland Partners, is attempting to utilize the vague language of Paragraph 3 of the Agreement, entitled "Warranty", in order to contradict the express terms stated in Paragraph 5 of the Agreement with Olympic Realty & Development Corp. ("Olympic Realty"). Paragraph 5 of the Agreement clearly states that whether the balance of the eight L Y, acres will be sold to Cumberland Partners will be "at the sole discretion of Olympic Realty." Plaintiffs Ex. A, Q 5. "It is well established that if two provisions in a contract are a inconsistent, the specific provision will govern as a qualification of the general provision[.]" ,?„4, •,• Wilborn Hosiery v Grissing_er, 22 D&C 3d 263 (Dauphin County 1981) citing Restatement of Contracts § 236(c). Plaintiff contends that Olympic Realty does not have the right to use its sole discretion. However, by signing the Agreement, Plaintiff accepted those terms as they were set forth in the Rights of Option provision (Paragraph 5). Since there is a clause specifically designated to address the option Plaintiff attempts to exercise, that clause should govern this Court's construction of the parties' Agreement. The Rights of Option provision is clearly stated. Plaintiff may not overcome this specific language, by which the parties agreed to be bound, by strained reliance on the general terms of the Warranty clause. The Warranty clause, upon which Plaintiff relies, provides: Oiympic Realty warrants that the retail buildings as shown on Exhibit "A" for the Capital Products Parcel will be built in the approximate location shown thereon and will contain an are of approximately 250,000 square feet. This warranty is given solely for informational purposes and as necessary for the granting of the cross-easements and options contained herein and may not be relied upon as accurate for any other purpose... Plaintiff's Ex. A, 13 (emphasis added). There is no language in this clause that would imply that Plaintiffs were guaranteed the option to purchase the balance of the eight acres but rather, this clause directs Plaintiffs to the Option clause that follows, explaining Olympic's discretionary privilege. Otherwise stated, the clause addresses only the grant, but not the exercise, of the options at issue. A. The Express terms of the Rights of Option clause overrides the vague terms of the "Warranty" clause. When an agreement contains provisions that are specific, the courts have held that parties may not use vague clauses to contradict them. Kidsik v. Duquense Univ. of the Holy Ghost, 437 A.2d 1257 (Pa.Super. 1981) involved a dispute that arose over the employment 2 contract of a law school librarian. The Dean of the law school informed the Plaintiff that in accordance with her employment contract and based upon his overall dissatisfaction with her performance, her contract would not be renewed for another term. Plaintiff argued that the American Bar Association Bylaws require approval by the collective law school faculty prior to termination of law professors. Id. at 1258. The court held "we will not interpret the vague advisory language of the Standards and Bylaws to effect a result contrary to a clause in the agreement which clearly states that the term shall be for one year." Id. at 1261. In this case, the Warranty clause refers to the approximate size and location of the buildings constructed and addresses the Option clause by name only. The "warranty" clause is not a guarantee of an option to purchase, nor does it override the very specific terms of the option itself. "The parties [have] the right to make their own contract, and it is not the function of [the] [c]ourt to re-write it, or to give it a construction in conflict with .., the accepted and plain meaning of the language used." Steuart v. McChesney, 444 A. 2d 659, 662 (Pa. 1982) quoting Hagarty v. William Akers Jr. CCo., 342 Pa. 263, 20 A.2d 317 (1941). The plain language of the Option clause states that whether the property will be sold to Plaintiff will be in the sole discretion of Olympic. Interpreting the Agreement differently in light of the "Warranty" clause would essentially rewrite a key provision of the Agreement in order to provide Plaintiff a benefit to which it is not entitled under the actual contract language at issue. B. Plaintiffs claims of "reliance" upon the "warranty" clause are unreasonable as a matter of law. In Bowman v. Meadow Ridge, 615 A.2d 755, (Pa.Super. 1992), the Pennsylvania Superior Court found that where the plaintiff had signed a contract for the purchase of a home containing an integration clause, plaintiff could not complain that he had been falsely promised 3 he would receive the lowest price for which that particular model of home had previously sold. Id. at 757. By granting preliminary objections and dismissing Plaintiff's Complaint, the Court precluded Plaintiff, a consumer, from seeking to contradict contract language by claiming "reliance" on "representations" inconsistent with the terms of this contract. It bears repetition that the Court did so as matter of law based upon the language of the contract alone. Here, Plaintiff is a sophisticated commercial real estate venture, entitled to far less deference than a consumer. Nevertheless, Plaintiff seeks to contradict the unfettered discretion clearly provided to Olympic by claiming "reliance" on the deliberately inexact "warranty" language. Plaintiff had ample opportunity to review and negotiate the Agreement prior to its signing and to object to the discretionary language contained in the Rights of Option clause. It did not. Additionally, Plaintiff could have insisted that the Warranty clause provide an explicit guaranty that the option to purchase the balance of the eight acres would remain open. It did not. Instead, Plaintiff accepted the terms of the Agreement by signing it without objection to the language of either the Warranty clause or the Rights of Option clause and now asks this Court to re-write the parties' Agreement. The teachings of Bowman, as applied to this case, are obvious: Plaintiff cannot manufacture a factual issue regarding its supposed reliance where the very document upon which its claim is based negates the reasonableness of that reliance as a matter of law. 4 CONCLUSION Essentially, Plaintiff's argument is that it "relied" upon its belief that Olympic would exercise its unfettered discretion in a manner Plaintiff would like. Such a claim of reliance is obviously locking in merit and should be disregarded. The Court should employ the common-sense, ordinary meaning of the language used by the parties, and should dismiss Count I of Plaintiff's Complaint based upon the face of the pleadings. Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC BY: Mark D. Bradshaw, Esquire Supreme Ct. I.D. #69175 Ronald M. Lucas, Esquire Supreme Ct. I.D. #18343 213 Market Street Harrisburg, PA 17101 (717) 237-6000 Attorney for Defendants DATED: October 11, 2000 L0226611 5 CERTIFICATE OF SERVICE AND NOW, this 11th day of October, 2000, 1, Mark D. Bradshaw, Esquire, hereby certify that 1 am serving a copy of the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by hand delivery, as follows: Michael J. Clement, Esquire WISLER, PEARLSTINE, TALONG, CRAIG, GARRITY & POTASH, LLO Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorney for Plaintiff o? Mark D. Bradshaw CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 CIVIL ACTION - EQUITY ORDER AND NOW, this day of September, upon consideration of Defendants' Motion for Judgment on the Pleadings, and, after consideration of the parties' briefs and argument regarding the same, Defendants' Motion is hereby GRANTED, and Plaintiff's Complaint is hereby DISMISSED in its entirety. J. (L0219213.11 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 CIVIL ACTION - EQUITY DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, come Defendants, by and through their counsel Eckert Seamans Cherin & Mellott, LLC, and make the following Motion for Judgment on the Pleadings, stating in support thereof as follows: 1. This action was commenced by Complaint filed on or about August 25, 1999. 2. This action relates to the development of a certain shopping center along the Carlisle Pike in Mechanicsburg, Pennsylvania, known as Hampden Commons. 3. The shopping center has several major "anchor" tenants, including The Home Depot, Pet Smart, OfficeMax and Circuit City. 4. Hamden Commons is adjacent to and directly west of Plaintiffs shopping center property, which contains a "Big-K" K-Mart location. Plaintiffs property is also accessed from the Carlisle Pike. 5. As related in Plaintiff's Complaint at paragraph 7, in or about August 1995, Defendant Olympic and Plaintiff began discussing a series of cross-easements and potential land transfers and options to facilitate enhanced traffic flow to both shopping centers. 6. This action concerns certain discrete and specific aspects of the parties' overall transaction. 7. Plaintiffs Complaint is set forth in two counts. Motion for Judgment on the Pleadings Directed to Count I 8. In Count I, Plaintiff seeks specific performance of a purported right to exercise a certain option to purchase certain acreage to the rear and south of, (i.e. behind), the K-Mart parcel. See Complaint and Answer at 114. 9. The particular acreage which is the subject of Count I of Plaintiffs Complaint is defined in the parties' Agreement as the "Balance of the 8 Acre Area", and consists of approximately 2.6 acres. 10. In simplest terms, Count I of Plaintiff's Complaint constitutes Plaintiffs assertion that it has appropriately exercised an option to purchase these 2.6 acres. 11. Defendants' defense to Count I is, in simplest terms, that certain conditions precedent to Plaintiffs ability to exercise said option remain unfilled, and that therefore the option has never been appropriately or effectively exercised. 12. More specifically, Defendants defend Count I based upon the explicit language of paragraph 5 of the parties' Agreement, itself. The particular language of the Agreement relied upon by Defendants is quoted in full in both paragraph 14 of Defendants' Answer and paragraph 44 of Defendants' New Matter. 2 13. The Agreement containing this language is already part of the record, having been made Exhibit "A" to Plaintiff's Complaint. See Exhibit "A" at 15. 14. The Agreement provides as follows: "balance of the 8 acre area not needed by Olympic Realty shall mean the remaining property not subject to the options set forth in paragraphs 5(b) and (c) which are determined at the sole discretion of Olympic Realty not required for development of the shopping center on the Capital Products parcel and, if developed, would not either (1) increase the development costs, directly or indirectly, of the Capital Products Parcel; or (2) require any municipal approvals (other than subdivision approvals) or variances, however, in no event shall Cumberland Partners be entitled to less than the 3 acre area described in subparagraph (a) above." See Exhibit "A" to Plaintiffs Complaint, 15 (emphasis added). 15. As this language makes clear, Plaintiff may exercise this option if, and only if, Defendant Olympic determines in its sole discretion that the 2.6 acres are not needed for its own development purposes. 16. Indeed, Plaintiffs Complaint affirmatively pleads that, prior to purporting to exercise its option for the 2.6 acres which is the subject of Count I, Plaintiff was expressly notified that Olympic Realty had determined, in its sole discretion, that the remaining property was needed by Olympic Realty for the development of the shopping center. See Complaint, Exhibit "D". See also Answer and New Matter, Exhibit 1. 17. As a result, Count I cannot succeed, since the pleadings in this matter establish that conditions precedent to Plaintiffs ability to exercise its option remained unsatisfied at the time Plaintiff purported to exercise said option. 3 18. Indeed, the pleadings establish that Plaintiff had actual notice and had been affirmatively informed that conditions precedent remained unsatisfied at the time it purported to exercise its option. 19. Additionally, the parties' Agreement establishes that there are also certain other conditions which must also be satisfied in order that Plaintiff be permitted to exercise its option, such as that any development of the "balance of the 8 acre area" would not, inter alia, require any municipal approvals or variances. 20. However, the pleadings and exhibits thereto which are already of record in this matter, (including correspondence from Plaintiffs own counsel-See Answer at Exhibit "3"), demonstrate that variances would be required in order for Plaintiff to exercise its option. 21. Thus, the pleadings in this matter make it abundantly clear that Plaintiff has not, and may not, appropriately exercise the option provided in the parties' Agreement. Consequently, Count I of Plaintiff's Complaint must fail. 22. No discovery or further proceedings are necessary in order to establish Plaintiffs inability to prevail on Count I, and the same should be dismissed with prejudice at this time. WHEREFORE, Defendants respectfully request that this Court enter judgment on the pleadings with respect to Count I of Plaintiffs Complaint and dismiss the same with prejudice. 4 Motion for Judgment on the Pleadings Directed to Count II 19. Count II of Plaintiffs Complaint seeks declaratory judgment and specific performance with regard to a certain easement purportedly permitting passage between the three (3) acre parcel which was transferred by Defendants to Plaintiff as part of the parties' Agreement, and the Carlisle Pike. 20. The circumstances of Plaintiffs acquisition of the three (3) acre parcel (i.e. as part of the parties' "global" Agreement to provide for cross-easements and options) demonstrates that Plaintiffs did not, and could not have, relied upon its ability to make use of this easement, in a particular location, rather than intending to utilize the thoroughfares contemplated under the parties' Agreement. 21. Simply stated, the parties Agreement to provide cross-easements was entered into for the express purpose of creating the current traffic pattern. 22. The Agreement contemplates that driveways and parking will be established in a particular and defined manner. 23. Following the parties' entry into the Agreement, this particular traffic pattern obtained municipal approval. 24. Plaintiff does not, and cannot, allege that it lacks access to its three (3) acre parcel through the existing parking lot and roadway configuration. 25. Indeed, Plaintiffs have benefited tremendously from the parties' Agreement and the resulting municipal approvals, inasmuch as Plaintiff now has far better access than it previously enjoyed to the three (3) acre parcel in question. 26. Plaintiff's access is now over a paved way with stormwater drainage features, etc., rather than over the previous unimproved gravel road. 27. As a result, Plaintiff is not harmed in any manner by utilizing the existing access to the three (3) acre parcel. 28. Having signed the Agreement providing for the current configuration, and having knowledge that municipal approvals had been granted for the same, Plaintiffs will not now be heard to insist upon their "rights" to the prior easement. 29. Plaintiff, through its conduct as set forth above has waived or should be estopped from taking its current position with regard to access to the three (3) acre parcel. WHEREFORE, Defendants respectfully request the entry judgment in their favor and against Plaintiff with respect to Count II of Plaintiff's Complaint, and request that Count II be dismissed with prejudice. Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC Mark D.'Bradshaw, Esquire Supreme Ct. I.D. #69175 Ronald M. Lucas, Esquire Supreme Ct. I.D. #18343 One South Market Square Building 213 Market Street Harrisburg, PA 17101 (717) 237-6000 Attorney for Defendants DATED: i:8 da 6 CERTIFICATE OF SERVICE AND NOW, this z8 day of August, 2000, I, Mark D. Bradshaw, Esquire, hereby certify that I am serving a copy of the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Michael J. Clement, Esquire WISLER, PEARLSTINE, TALONG, CRAIG, GARRITY & POTASH, LLC Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorney for Plaintiff ll Mark D. Bradshaw, Esquire (1.0219213. 11 i? -? t . i'? ? ' CUMBERLAND PARTNERS, IN THE COURT OF COMMON PLEAS OF a Pennsylvania limited partnership, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS. OLYMPIC REALTY and DEVELOPMENT CORPORATION : a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation and H.C. HOLDINGS LIMITED No. 99-5198 PARTNERSHIP, a Pennsylvania limited partnership and HAMPDEN COMMONS CONDOMINIUM ASSOCIATION, : A Pennsylvania non-profit corporation Defendants CIVIL ACTION -EQUITY ORDER AND NOW, this day of , 2000, upon consideration of Defendants' Motion for Judgment on the Pleadings and Plaintiffs Response thereto, it is hereby ORDERED and DECREED that the Motion is DENIED. By the Court: WISLER, PEARLSTINE, TALONS, CRAIG, GARRITY & POTASH, LLP By: Michael J. Clement, Esquire/Stephen M. Rae, Esquire Attorney 1. D. No. 2 003 9/6 5 1 99 484 Norristown Road Attorneys for Plaintiff Blue Bell, PA 19422 Cumberland Partners CUMBERLAND PARTNERS, : IN THE COURT OF COMMON PLEAS OF a Pennsylvania limited partnership, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS. OLYMPIC REALTY and DEVELOPMENT CORPORATION a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation and H.C. HOLDINGS LIMITED No. 99-5198 PARTNERSHIP, a Pennsylvania limited partnership and HAMPDEN COMMONS CONDOMINIUM ASSOCIATION, A Pennsylvania non-profit corporation Defendants CIVIL ACTION -EQUITY PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, Plaintiff, Cumberland Partners, by and through its counsel, Wisler, Pearlstine, Talone, Craig, Garrity & Potash, LLP, hereby responds to Defendants' Motion for Judgment on the Pleadings as follows: Admitted. 2. Admitted in part. By way of further answer, this action relates to Plaintiffs Complaint which is a written documents that speaks for itself. 3. Admitted in part and denied in part. It is admitted that the Home Depot, Pet Smart, Office Max and Circuit City are part of a condominium association developed for the Hampden Commons Shopping Center. The remaining allegations of this paragraph are denied. 4. Admitted. 5. Denied as stated. Paragraph 5 of Plaintiffs Complaint is part of a written document that speaks for itself. 6. Denied as stated. Plaintiffs action is based on Plaintiffs Complaint which is a written document that speaks for itself. 7. Admitted. RESPONSE TO MOTION FOR JUDGMENT ON THE PLEADINGS DIRECTED TO COUNT I 8. Denied as stated. Count I of Plaintiffs Complaint is part of a written document that speaks for itself. 9. Denied as stated. As set forth in Plaintiffs Complaint, Plaintiff seeks to enforce its rights over the "balance of the 8 acre area". 10. Denied as stated. Count I of Plaintiffs Complaint is a written document that speaks for itself. 11. Denied as stated. Defendants' response to Plaintiffs Complaint is a written document that speaks for itself. By way of further answer, while Defendants contend that conditions precedent have not occurred, Plaintiff contends that these conditions have occurred. 2 12. Denied as stated. Defendant's response to the Plaintiffs Complaint, paragraph 14 and Defendant's New Matter, paragraph 44 are parts of a written document that speaks for itself. 13. It is admitted that Plaintiff attaches a copy of the Agreement to its Complaint. 14. Admitted in part and denied in part. It is admitted that Defendants cite a portion of paragraph 5 of the Agreement in this paragraph of Defendants' Motion for Judgment on the Pleadings. It is denied that Defendants cite the entire language of paragraph 5 of the Agreement in this paragraph of Defendant's Motion for Judgment on the Pleadings. 15. Denied as stated. This paragraph sets forth Defendants' interpretation of paragraph 5 of the Agreement. Plaintiff disputes Defendants' interpretation of paragraph 5 of the Agreement and submits that significant factual issues exist as to the proper interpretation of paragraph 5 of the Agreement that must be resolved by the trier of fact at the time of trial. 16. Denied. Plaintiffs Complaint does not plead that Plaintiff was notified by Defendants that Defendants determined in their sole discretion a need for the remaining property in accordance with the Agreement. Plaintiffs Complaint is a written document that speaks for itself. Byway of further answer, the conditions precedent to Plaintiffs exercise of its option to purchase the balance of the property have occurred and Plaintiff has properly asserted its rights under the Agreement. 17. Denied. As set forth in Plaintiffs Complaint, Plaintiff has properly asserted its right to exercise its option to purchase the balance of the property as set forth in the Agreement. By way of further answer, at a minimum, significant factual issues exist as to the interpretation of the language of the Agreement as well as the facts and circumstances surrounding the Agreement that must be resolved by the trier of fact at the time of the trial. IS. Denied. Plaintiffs Complaint does not plead that Plaintiff was notified by Defendants that Defendants determined in its sole discretion a need for the remaining property in accordance with the Agreement. Plaintiffs Complaint is a written documents which speaks for itself. By way of further answer, the conditions precedent to Plaintiffs exercise of its option to purchase the balance of the property have occurred and Plaintiff has properly asserted its rights under the Agreement. 19. Denied. Plaintiffs Complaint is a written document that speaks for itself. By way of further answer, Plaintiffs Complaint establishes that the conditions precedent to Plaintiffs exercise of its option to purchase the balance of the property have occurred. Plaintiffs Complaint does not set forth facts to the contrary. 20. Denied. It is denied that Plaintiffs exercise of its option under the Agreement would require a variance as set forth in paragraph 5 of the Agreement. 21. Denied. The pleadings in this matter are written documents that speak for themselves. By way of further answer, the pleadings in this matter set forth significant factual disputes between the parties relating to the Agreement and the facts and circumstances surrounding the Agreement that must be resolved by the trier of fact at the time of trial. 22. Denied. Discovery in this matter is still proceeding and Plaintiff reasonably anticipates that further discovery in this matter will produce additional evidence in support of the Plaintiffs cause of action. WHEREFORE, Plaintiffs respectfully request that this Court enter an Order denying Plaintiffs Motion for Judgment on the Pleadings. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS DIRECTED TO COUNT It 19. Denied as stated. Count II of Plaintiffs Complaint is part of a written document that speaks for itself. 20. Denied. As set forth in Plaintiffs Complaint, Plaintiff relied upon its ability to make use of the right of way, in a particular location. 21. Denied as stated. The Agreement is a written document that speaks for itself. 22. Denied as stated. The Agreement is a written document that speaks for itself. 23. Denied as stated. Plaintiff is unable to form a belief regarding the municipality's "approval" of a traffic pattern and demands strict proof thereof, if material, at the time of trial. 24. Denied as stated. The allegations of Plaintiffs Complaint are part of a written document that speaks for itself. 25. Admitted in part and denied in part. It is admitted that Plaintiff has received some benefit from the Agreement. However, it is denied that Plaintiff has received the full benefit of the Agreement and Plaintiff has filed this action to obtain the full benefit it is entitled to under the Agreement. 26. Denied as stated. Plaintiffs access has been improved but was previously adequate. 27. Denied. Plaintiff is entitled to the full benefit of the Agreement and Plaintiffs Complaint seeks to obtain the full benefit of the Agreement. 28. Denied. The allegations of Plaintiffs Complaint are part of a written document that speaks for itself. 29. Denied. Plaintiff has not waived any rights under the Agreement and should not be estopped from asserting any rights under the Agreement. To the contrary, Plaintiff should be permitted to enforce its right under the Agreement. WHEREFORE, Plaintiff respectfully requests that this Court enter an Order denying Defendants' Motion for Judgment on the Pleadings. Respectfully submitted, WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP Bye Michael J. lement, Es ire Stephen M. Rae, Esquire Attorneys for Plaintiffs N:\Users\mgb\My Documents\Smr\Cumherland Panners\Pltts Rest, to Motion for Judgment on Pleadings.doc 09/25/20002:56 PM WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP By: Michael J. Clement, Esquire/Stephen M. Rae, Esquire Attorney I. D. No. 2003 9/65 1 99 484 Norristown Road Attorneys for Plaintiff Blue Bell, PA 19422 Cumberland Partners CUMBERLAND PARTNERS, IN THE COURT OF COMMON PLEAS OF a Pennsylvania limited partnership, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Vs. OLYMPIC REALTY and DEVELOPMENT CORPORATION : a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation and H.C. HOLDINGS LIMITED No. 99-5198 PARTNERSHIP, a Pennsylvania limited partnership and HAMPDEN COMMONS CONDOMINIUM ASSOCIATION, A Pennsylvania non-profit corporation Defendants CIVIL ACTION -EQUITY CERTIFICATE OF SERVICE I certify that on September 25, 2000 a true and correct copy of Plaintiffs Response to Defendants' Motion for Judgment on the Pleadings was served via first class mail, postage prepaid upon the following: Mark D. Bradshaw, Esquire One South Market Square Building 213 Market Street Harrisburg, PA 17101 WISLER, PEARLSTINE, TALONE CRAIG, GARRITY & POTASH, LLP By: ( / > Michael J. Clement, Esquire Stephen M. Rae, Esquire Attorneys for Plaintiff Cumberland Partners ? 0 ?.; o• ?- ?? '' - ?:_ ' __ C ) 1 ' r-• i,? c. '_ `? (:'? ^ i, i ?.i _ ??. C't 1 MICHAEL J. CLEMENT, ESQUIRE Attorney I.D. No. 20039 WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorneys for Plaintiff (610) 825-8400 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H. C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 CIVIL ACTION -EQUITY CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena upon Jeffrey W. Staub, P.E. for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to die date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: March 21, 2000 Mic l lement, Esquire Attorneys for Plaintiff Cumberland Partners MICHAEL J. CLEMENT, ESQUIRE Attorney I.D. No. 20039 WISLER, PEARLSTINE, TALONS, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorneys for Plaintiff (610) 825-8400 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H. C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, . PENNSYLVANIA NO. 99-5198 . CIVIL ACTION -EQUITY NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, Cumberland Partners, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. DATE: Januarv27.2000 Mic ement, Esquire Attorney for Plaintiff, Cumberland Partners Oa*"MEUM OF PENRMVANIA OOUNTY OF CilI4BFRIlU•ID CUMBERLAND PARTNERS, V. Plaintiff File No. 99-5198 Equity OLYMPIC REALTY, et al., Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISOOVERY PURSUANT TO RULE 4009.22 TO: ,leff= W. Staub. P.S. Dauphin Ert neerinp Co,, 44 Oak Park Road (Name of Person or Entity) R®rrisburg, PA 17109 Within twenty (20) days after service of this subpoena, you are ordered by the court to Produce the following documents or things: _ See Attached Subpoena Rider at {iislrs Poartar;rip Talon Cram Garrity R Potash LLP, 484 Norristown Road, Suite 100 (Address) Hit Bell, FA 194Z- You. may::deliver 'ar:mail legible copies of the documents or produce things requested b) this "su - " bpoeria, "together with the certificate of oarpliance,. to the, party. making thi: request at the address listed above. You have.the right t•.o'seek"in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twent; (20) days after its service, the party serving this subpoena may seek a court order cat elling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME:-Michael J. Clement Esquire ADDRESS: -484-Noi ;ctown-Rdad Sui `'%l00 Blue Bell, PA 19422 TELEPHONE: (610) 825-8400 SUPREME 000RT ID # 20039 ATTORNEY FOR: Plaintiff BY THE OOURT: ii _.. Seal of; the' ourt' ' : = r Deputy (Eff. 7/97) Jeffrey W. Staub Physical Engineer Subpoena Rider 1. Copies of all documents in the possession of Dauphin Engineering Co., including without limitation, correspondence and enclosures, plans, sketches, reports, graphs and analyses transmitted to all governmental and quasi- governmental agencies including without limitation Hampden Township, Hampden Township Planning Commission, Cumberland County, Cumberland County Planning Commission, the Sewer Authority for Hampden Township and PennDOT pertaining to the Hampden Commons development from January 1, 1995 to the present. MICHAEL J. CLEMENT, ESQUIRE. Attorney I.D. No. 20039 NVISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road Blue Dell, Pennsylvania 19422 Attorneys for Plaintiff (610) 825-8400 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/Wa OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H. C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants NO. 99-5198 : CIVIL ACTION- EQUITY CERTIFICATE OF SERVICE I, Michael J. Clement, Esquire, hereby certify that a true and correct copy of the foregoing Notice of Intent to Serve a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was served upon opposing counsel as noted below by way of postage prepaid, first-class mail on January 27, 2000. Mark D. Bradshaw, Esquire Eckert, Seamans, Cherin & Mellol, LLC 213 Market Street 8ih Floor Harrisburg, PA 17101 WISLER, PEARLSTINE, TALONS, CRAIG, GARRITY & POTASH, LLP DATE: January 27, 2000 BY: M chael : lement, Esquire Attorney for Plaintiff Cumberland Partners UJ?? N ?Q z UJU.J ? C5 o U MICHAEL J. CLEMENT, ESQUIRE Attorney I.D. No. 20039 WISLER. PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorneys for Plaintiff (610) 825-8400 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, alkla OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H. C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 CIVIL ACTION - EQUITY CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena upon the Custodian of Records for Hampden Township. for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: March 21, 2000 tch ery uire Attorneys for Plaintiff Cumberland Partners MICHAEL J. CLEMENT, ESQUIRE Attorney I.D. No. 20039 WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorneys for Plaintiff (610) 825-8400 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H. C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 CIVIL ACTION - EQUITY NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4000.21 Plaintiff, Cumberland Partners, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. DATE: January 27.2000 J. Clement, Esquve Attorney for Plaintiff, Cumberland Partners CUMBERLAND PARTNERS, Plaintiff V. File No. 99-5198 £rnuity OLYMPIC REALTY, et al., TO: Defendants SUBPOENA TO PRODUOE DOC(14ENTG OR THINGS OR D SMMRY PURSUANT TO RULE 4009.22 of Records, Hampden Township, 230 South Sporting Hill Road (Name of Person or Entity) Mechanicsburg. pp 17055 Within twenty (20) days after service of this subpoena, you are ordered by the court to Produce the following docunents or things: See A A hed 4,jRpM Rider at Wisler, Pearlstine, Talone, Craig, Garrity 5 Potash, LLP, 484 Norristown Boa1_Sn W (Address) ' You. may::deliver or:mail legible copies of the documents or produce things requested bj this "subpoena, together with the certificate of crnpliance,. to the. party, making thi: request .at the address listed above. You have the right to seek in advance the reasonablf cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a a:,urt order carpel Iing you to car ply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME:_MiGbae1 J Clement Esquire ADDRESSiL484-Noi-r ,%tMd-2-Rd;d `•4,ite'100 Blue Bell, PA 19422 TELEPHONE: (610) 825-8400 SUPREME OOl1RT ID ># 20039 ATTORNEY FOR.. Plaintiff BY THE DATE ?o`t.?.?•?` a? .'?al?,? seal. of the -doi rt r ,> OOFMk1WEALTH OF PENNSYLVANIA . COUNTY OF CUMBERLAND (Eff. 7/97) Custodian of Records Hampden Township Subpoena Rider 1. Copies of all documents in the possession of Hampden Township, including without limitation, correspondence and enclosures, plans, sketches, reports, graphs and analyses transmitted from Defendants, their employees, agents and consultants, including without limitation, their engineers, architects and attorneys to all governmental and quasi- governmental agencies including without limitation Hampden Township, Hampden Township Planning Commission, Cumberland County, Cumberland County Planning Commission, the Sewer Authority for Hampden Township and PennDOT relating to the Hampden Commons development from January 1, 1995 to the present. 2. Copies of any and all ordinances, resolutions and minutes pertaining to the Hampden Commons development from January 1, 1995 to the present. Copies of any and all zoning decisions relating to the Hampden Commons development from January 1, 1995 to the present. MICHAEL J. CLEMENT, ESQUIRE Attorney I.D. No. 20039 WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorneys for Plaintiff (610) 825-8400 CUMBERLAND PARTNERS, a Pennsylvania limited partnership, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H. C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants : NO. 99-5198 : CIVIL ACTION -EQUITY CERTIFICATE OF SERVICE I, Michael J. Clement, Esquire, hereby certify that a true and correct copy of the foregoing Notice of Intent to Serve a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was served upon opposing counsel as noted below by way of postage prepaid, rust-class mail on January 27, 2000. Mark D. Bradshaw, Esquire Eckert, Seamans, Cherin & Mellot, LLC 213 Market Street 8'n Floor Harrisburg, PA 17101 WISLER, PEARLSTINE, TALONE, CRAIG, GARRITY & POTASH, LLP DATE: Januarv27.2000 BY: Mi ra . . Clement, Esquire Attorney for Plaintiff Cumberland Partners 4 ?C) LU N 1 ? r J LJ 17.1 cl. C? U p ? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-05198 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CUMBERLAND PARTNERS VS. OLYMPIC REALTY AND DEVELOP COR R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: HAMPDEN COMMONS CONDOMINIUM ASSOCIATION but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania. to serve the within COMPLAINT - EOUITY On September 10th, 1999 , this office was in receipt of the attached return from DAUPHIN County, Pennsylvania. e Sheriff's Costs: So 211 Docketing 6.00 ice? O ut of County .00 Surcharge 8.00 omas it ne Seri $.Lq.uQ JJOH OHNSON DUFFIE, STEWART 11 Sworn and subscribed t before me this in °' day of „16._. 192 A.D. 712 n4$. a ro on?}# SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-05198 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CUMBERLAND PARTNERS VS. OLYMPIC REALTY AND DEVELOP COR R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: H C HOLDINGS LIMITED PARTNERSHIP but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania. to serve the within COMPLAINT - EQUITY On _September 10th, 1999 this office was in receipt of the attached return from DAUPHIN County, Pennsylvania. Sheriff's Costs: So answe s: Docketing 18.00 Out of County 9.00 A=/l?n?iPL Surchargqe 8.00 omas ine, eri DEP. DAIIPHIN CO 31.50 JOHNS 09/10%N, DUFFIE, STEWART 1999 Sworn and subscribed to before me this /0 r-`? day of 19?9 A.D. ro ono r inflice Of ?$hPri f f Man Jane Sncdcr Ralph G. McAllister Ch Rc l Estute Ikputp •• ''?,,?.? ief Ikpuq William T. Tully * Michael W. Rinehart Solicitor Assistant Chief Dcputy Dauphin County Harrisburg. Pennsylvania 17101 ph:(717)255-2060 ths:(717)255.2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania CUMBERLAND PARTNERS vs County of Dauphin H C HOLDINGS LIMITED PARTNERSHIP Sheriff's Return No. 1809-T - - -1999 OTHER COUNTY NO. 99-5198 EQUITY AND NOW: August 31, 1999 NOTICE & COMPLAINT IN EQUITY at 10:25AM served the within HAMPDEN COMMONS CONDOMINIUM ASSOC upon by personally handing to THOMAS ISENBERG-ATTORNEY 1 true attested copy(ies) of the original NOTICE & COMPLAINT IN EQUITY and making known to him/her the contents thereof at 213 MARKET STREET 8TH FLOOR HARRISBURG, PA 17101-0000 Sworn and subscribed to before me this 2ND day orSEPTEMBER, 1999 PROTHONOTARY So Answers, Sheriff of Da hin C a. By D ty Sheriff Sheriff's Costs: $31.50 PD 08/30/1999 RCPT NO 127657 ET (?fftcE Of *e 4Pxiff Man Jane Sm der Ralph G. McAllister Real Hstako Ihput% Chief Ikrywty William T. Tully Michael W. Rinehart Solicitor Assistant Chief Q:puty Dauphin County Harrisburg, Pennsylvania 17101 ph:(717)255-2660 fox:(717)255-2889 Jack Lotwick Sheriff Commonwealth of PeRnSylvania CUMBERLAND PARTNERS vs County of Dauphin H C HOLDINGS LIMITED PARTNERSHIP Sheriff's Return No. 1809-T - - -1999 OTHER COUNTY NO. 99-5198 EQUITY AND NOW: August 31, 1999 NOTICE & COMPLAINT IN EQUITY at 10:25AM served the within upon H C HOLDINGS LIMITED PARTNERSHIP by personally handing to THOMAS ISENBERG-ATTORNEY 1 true attested copy(ies) of the original NOTICE & COMPLAINT IN EQUITY and making known to him/her the contents thereof at 213 MARKET STREET 8TH FLOOR HARRISBURG, PA 17101-0000 Sworn and subscribed to before me this 2ND day of SEPTEMBER, 1999 ? i 1j, PROTHONOTARY So Answers, Sheriff of Da- hin Pa. By D uty Sheriff Sheriff's costs: $31.50 PD 08/30/1999 RCPT NO 127657 ET In The Court of Common Pleas of Cumberland County, Pennsylvania Cumberland Partners Olympic Realty,, et. al. Serve: H.C. Holdings Limited R@.rtnership 99-5198 Civil Now, 8/26/99 19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a _ and made known to copy of the original So answers, the contents thereof. Sheriff of Sworn and subscribed before me this _ day of , 19 19_, at o'clock M. served the COSTS SERVICE _ MILEAGE _ AFFIDAVIT County, PA $ In The Court of Common Pleas of Cumberland County, Pennsylvania Cumberland Partners VS. Olympic Realty, et. al. Serve: Hampden Commons No 99-5198 Civil Condominium Assoc. Now, 8/26/99 19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to copy of the original the contents thereof. So answers, Sheriff of Sworn and subscribed before me this_ day of , 19 19_, at o'clock M. served the County, PA COSTS SERVICE $ MILEAGE AFFIDAVIT 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: Argument Court CUMBERLAND PARTNERS, a Pennsylvania limited partnership. Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5198 CIVIL ACTION - EQUITY 1. State matter to be argued (i.e., plaintiffs motion for new trial. defendant's demurrer to complaint, etc.): Defendant's Motion for Judgment on the pleadings. 2. Identify counsel who will argue case: (a) for plaintiff: Michael J. Clement, Esquire Address: Office Court at Walton Point 484 Norristown Road Blue Bell, PA 19422 (b) for defendant: Mark D. Bradshaw, Esquire Address: 213 Market Street, 8ih Floor Harrisburg, PA 17101 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 11, 2000 Call of Argument List Date: ?X\a Dated: ?I /s--/70 Attorney for Defendant (L0224960.1) 4 tf.` j t _ t'Q z co l Z ., W CD a- ( A G? O U L t r CERTIFICATE OF ERVICE AND NOW, this day of September, 2000, Mark D. Bradshaw, Esquire, hereby certify that I am serving a copy of the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Michael J. Clement, Esquire WISLER, PEARLSTINE, TALONG, CRAIG, GARRITY & POTASH, LLO Office Court at Walton Point 484 Norristown Road Blue Bell, Pennsylvania 19422 Attorney for Plaintiff Mark D. Bradshaw, Esquire -s. lij, u ? tT c' La- 1 J c JL LAJ F V) O n G U l .. ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Vans r Sr,,,, November 9, 1999 I LmAwQ, CI 17111 ms ,r„ ,,,, Mr. Curt Long Aw uh/a,. A, k /-! 18 Cumberland County Prothonotary hlmrAnt.q. n'i 17118-12.1.5 Cumberland County Courthouse T,•Lhdmne 717.>17.6010 1 Courthouse Square Nesimile: 717. X17.6019 Carlisle, PA 17013-3387 111111".1011 n0111 RE: Cumberland Partners v. Olympic Realty and Development Corp. et al. rfn;bur?1, No. 99-5198 Auto, Dear Mr. Long: Enclosed please find Defendant's Amended Answer with New Matter. Upon r1,rlad,d,dd,, review, we have determined that the Exhibits attached to the version filed in your office on November 8, 1999 were incomplete. Thus, we respectfully request that II,viin,,,rr, NJ you substitute the enclosed Amended Answer with New Matter for the earlier- filed document. ns,:1d„,i,,,,,, u.c. Should you have any questions regarding this request, please do not hesitate to contact me. V truly your ark D. Bradshaw MDB:slr Enclosures cc: Michael J. Clement, Esquire ECKERT SEAMANS Mark D. Bradshaw 7172376033 nidb@escm.com CUMBERLAND PARTNERS,a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-5198 EQUITY TERM IN RE: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY and OLER, JJ. ORDER OF COURT ORDER OF COURT AND NOW, this21sf day of November, 2000, upon consideration of Defendants' motion for judgment on the pleadings, and for the reasons stated in the accompanying motion, the motion is denied. BY THE COURT, IvWesley Oler, J Michael J. Clement, Esq. WISLEY, PEARLSTINE, TALONG, 1? co CRAIG, GARRITY & POTASH, LLC Office Court at Walton Point 484 Norristown Road Blue Bell, PA 19422 Attorney for Plaintiff Mark D. Bradshaw, Esq. Ronald M. Lucas, Esq. One South Market Square Building 213 Market Street Harrisburg, PA 17101 Attorneys for Defendants CUMBERLAND PARTNERS,a Pennsylvania limited partnership, Plaintiff V. OLYMPIC REALTY and DEVELOPMENT CORPORATION, a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., a New York corporation, and H.C. HOLDINGS LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-5198 EQUITY TERM IN RE: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT OLER, J., November 21, 2000. In this equity case, Plaintiff seeks (a) to enforce an option to purchase real estate and (b) to declare and enforce an easement. For disposition at this time is a defense motion for judgment on the pleadings. For the reasons stated in this opinion, the motion for judgment on the pleadings will be denied. STATEMENT OF FACTS The allegations of Plaintiff's complaint may be summarized as follows: Plaintiff was the owner of a certain shopping center in Hampden Township, Cumberland County, Pennsylvania, and Defendant Olympic Realty and Development Corporation was the purchaser of property contiguous to it. Defendant Olympic planned to build a shopping center on its land. In furtherance of this plan, it agreed to give Plaintiff rights to buy some of its land and to provide an easement over its land favorable to Plaintiff, and Plaintiff agreed to provide an easement over its property favorable to Defendant Olympic. The easements were for vehicular traffic. In a "Memorandum of Agreement" dated October 16, 1995, "effective as of December 21, 1995," between Plaintiff and Defendant Olympic, it was recited that the parties had reached an agreement whereby cross easements would be granted between them and whereby Plaintiff would have options to purchase two pieces of land owned by Defendant Olympic.' The Memorandum of Agreement made reference to a prospective "Declaration of Condominium" which would apply to Defendant Olympic's land; the declaration was to specifically reserve, for purposes of the transfer to Plaintiff, the two pieces of land mentioned above.2 In an "Agreement To Provide for Cross Easements and Options," dated December 21, 1995, between Plaintiff and Defendant Olympic et al., it was recited that "Olympic Realty has agreed to sell three (3) acres of [Olympic's land]; and (2) [sic] grant an option to Cumberland Partners to purchase the remaining unneeded acreage in [a certain] eight (8) acre portion of [Olympic's land] ...."3 The so-called eight-acre portion of Defendant Olympic's land was a strip which happened to extend behind Plaintiffs property; this strip included the three- acre piece referred to in the recital and the second (approximately 2.6-acre) piece referred to in the recital.4 The main paragraph in the agreement relating to these two pieces read as follows: Plaintiffs complaint, Exhibit B. 7 Plaintiff's complaint, paragraph 20 and Exhibit B. Plaintiff's complaint, Exhibit A. See Plaintiff's complaint, Exhibit A. 2 5. Rights of Option . Subject to the conditions contained herein, Olympic Realty hereby irrevocably grants to Cumberland Partners the exclusive option rights effective the date of Settlement on the [land being purchased by Olympic Realty] for a period which shall expire 36 months from the later of (i) settlement on the [land being purchased by Olympic Realty], or (ii) written notice by Olympic Realty to Cumberland Partners of the amount of remaining acreage available for [the second, approximately 2.6 acre piece referred to in the recital] as defined in Paragraph 5(b) below: (a) [with respect to the three-acre piece mentioned above], to purchase for the sum of Ten ($10.00) Dollars, a two (2) acre area ("Tract 1") as further described in Exhibit "F" attached hereto and made a part hereof and one (1) acre area ("Tract 2") as further described in Exhibit "G"", attached hereto and made a part hereof, both within the eight acre area as shown on Exhibit "A", to be conveyed in one lot to Cumberland Partners as a lot addition, provided, however, that such option shall only be effective if the conditions in paragraph 1 [relating to consummation of the purchase by Olympic] are fulfilled. Notwithstanding the above the sixty (60) day option period for Tract 1 and Tract 2 shall be extended an additional day for each day that settlement is scheduled for the purchase of the [land being purchased by Olympic Realty] beyond 90 days from the date of this Agreement. (b) [with respect to the second piece mentioned above,] to purchase at a price of Fifty Thousand ($50,000.00) Dollars per acre the balance of the eight acre area (and no less than this amount unless said purchase is for the construction of a retention/detention basin) ("Tract 3") as further described in Exhibit "H" attached hereto and made a part hereof, not needed by Olympic Realty as shown on Exhibit "A" (the "Remaining Acreage Option"). Olympic Realty shall have the right to regrade and remove fill from Tract 3 for the use and development of the [land being purchased by 3 Olympic Realty], whether or not Cumberland Partners exercises its option to purchase Tract 3, for up to twelve (12) months after the date of settlement on the [land being purchased by Olympic Realty]. For purposes of this paragraph the "balance of the eight acre area not needed by Olympic Realty" shall mean the remaining property not subject to the options set forth in paragraphs 5(b) and (c), which are determined at the sole discretion of Olympic Realty, not required for development of the shopping center on the [land being purchased by Olympic Realty] and, if developed, would not either (1) increase the development costs, directly or indirectly, of the [land being purchased by Olympic Realty]"; or (2) require any municipal approvals (other than subdivision approvals) or variances, however, in no event shall Cumberland Partners be entitled to less than the three acre area described in subparagraph (a) above.5 This agreement also contained the following paragraph regarding the size of the projected shopping center on the land being purchased by Olympic Realty: 3. Way Olympic Realty warrants that the retail buildings as shown on Exhibit "A" for the [land being purchased by Olympic Realty] will be built in the approximate location shown thereon and will contain an area of approximately 250,000 square feet. This warranty is given solely for informational purposes and as necessary for the granting of the cross-easements and options contained herein and may not be relied upon as accurate for any other purpose. The parties have agreed that Exhibit "A" shall contain a "no building area".6 Plaintiff would not have entered into the agreement had it not received the option to buy the second piece mentioned above.7 Defendant Olympic proceeded 5 Plaintiff's complaint, Exhibit A. Plaintifrs complaint, Exhibit A. Plaintiff's complaint, paragraph 26. 4 to construct a shopping center, conforming to the warranty as to size, on its lands Notwithstanding this, however, when Plaintiff attempted to exercise its option to buy the second piece mentioned above Defendant Olympic advised that it had "determined, in its sole discretion, that the [piece subject to the option was] needed by Olympic Realty for the development of the shopping center.s,) There was, therefore, according to Defendant Olympic, "no land left to sell to [Plaintiff]."ta Plaintiff did succeed in exercising its option to buy the first (three-acre) piece mentioned above." However, its rights in a certain easement which benefited this piece (unrelated to the cross easements mentioned above) was not being recognized by the defendant owner of the servient tenement, in that the easement was being relocated without Plaintiffs consent. The defense response to Plaintiffs claim of a right to purchase the approximately 2.6 acre piece was (a) that, by the terms of the agreement, Defendant Olympic enjoyed unlimited discretion to deem the piece unavailable to Plaintiff, it exercised this discretion, and its exercise was in fact reasonably based, and (b) that a condition of Plaintiffs right to purchase the piece-the absence of increased development costs and any need for a zoning variance-did not exist. 12 The defense response to Plaintiffs claim of a deprivation of its rights under an easement was that more recent easements rendered the earlier easement unimportant. 13 Plaintiffs reply contested the validity of these assertions. 14 8 Plaintiff's complaint, paragraph 27 Plaintiffs complaint, Exhibit D. 1° Plaintiffs complaint, Exhibit D. 11 Plaintiffs complaint, paragraph IS 12 Defendant's amended answer with new matter, paragraphs 43-53 Defendant's amended answer with new matter, paragraphs 56-60 4 Plaintiff's reply to Defendants' new matter. 5 Under Pennsylvania Rule of Civil Procedure 1034, "[a]fter the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings." A motion for judgment on the pleadings is treated similarly to a preliminary objection in the nature of a demurrer. Del Ouadro v. City of Philadelphia, 293 Pa. Super. 173, 176, 437 A.2d 1262, 1263 (1981). Only the pleadings and any documents properly attached to them may be considered. Hammerstein v. Lindsay, 440 Pa. Super. 350, 356, 655 A.2d 597, 601 (1995). All well-pleaded facts of the party objecting to the motion "are to be viewed as true, but only those facts specifically admitted by the objecting party may be considered against him." E-Z Parks, Inc. v. Philadelphia Parking Authority, 110 Pa. Commw. 629, 633-34, 532 A.2d 1272, 1275 (1987), appeal denied, 519 Pa. 656, 546 A.2d 60 (1988). A motion for judgment on the pleadings should be granted only in cases where the pleadings demonstrate that no material facts are at issue and the law is so clear that a trial would be fruitless. Hammerstein v. Lindsay, 440 Pa. Super. 350, 356, 655 A.2d 597, 601 (1995). With respect to interpretation of contracts, the Pennsylvania Superior Court has stated the following general principle: In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all the circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished. Metzger v. Chord Realty Corp., 327 Pa. Super. 377, 385, 476 A.2d 1, 5 (1984). A more specific principle is that an interpretation of a provision in a contract which would render the provision illusory in nature is not favored. See Chester City School Authority v. Aberthaw Construction Co., 460 Pa. 343, 354, 333 A.2d 758, 764 (1975). 6 In the present action, a careful review of the pleadings has led the court to conclude that Defendants' motion for termination of the case at this point should be denied. With respect to Plaintiff's cause of action based upon its option to purchase a piece of land "not required" for development, several factors militate against a summary disposition of the claim. First, the intended import of the agreement's language as to Defendant Olympic's discretion, when considered in conjunction with Defendant's "warranty" as to the extent of its planned development, the reservation of land in the Declaration of Condominium to accommodate exercise of the option, and the presumption that the parties did not intend the option to be merely illusory, is the subject of reasonable dispute. Second, Defendant's position that, to the extent relevant, its exercise of discretion was in fact reasonable and in good faith is not self-evident from the current record. Third, Defendant's position that other prerequisites to exercise of the option-the absence of an increase in development costs and any need for a zoning variance- is also dependent upon a more developed record than presently exists. With respect to Plaintiff's cause of action based upon a violation of its rights under an easement, the pleadings similarly can not be characterized as dispositive. They will not support a holding at this early stage of the case that trial would be fruitless. For the foregoing reasons, the following order will be entered: AND NOW, this 2151 day of November, 2000, upon consideration of Defendants' motion for judgment on the pleadings, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, /s/ J. Wesley Oler. Jr. J. Wesley Oler, Jr., J. 7 Michael J. Clement, Esq. WISLEY, PEARLSTINE, TALONG, CRAIG, GARRITY & POTASH, LLC Office Court at Walton Point 484 Norristown Road Blue Bell, PA 19422 Attorney for Plaintiff Mark D. Bradshaw, Esq. Ronald M. Lucas, Esq. One South Market Square Building 213 Market Street Harrisburg, PA 17101 Attorneys for Defendants LAWRENCE K. THOMPSON, III, M.D., Plaintiff V. PETER GIESSWEIN, M.D. and COSMETIC AND PLASTIC SURGERY CENTER OF CENTRAL PENNSYLVANIA, P.C., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-4924 Equity Civil Action - Equity PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff, Lawrence K. Thompson, III, M.D. certifies that: (1) a notice of intent to serve the subpoenas with a copy of the subpoenas attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoenas, is attached to this certificate, (3) no objections were received regarding the subpoenas; and (4) the subpoenas which will be served are identical to the subpoenas which are attached to the notice of intent to serve the subpoenas. METTE, EVANS & WOODSIDE BY: ??-- ANDREW H. DOWLING, ESQUIRE Supreme Court I. D. No. 39692 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Lawrence K. Thompson, III, M.D. DATED: June 20, 2001 LAWRENCE K. THOMPSON, III M.D., Plaintiff V. PETER GIESSWEIN, M.D. and COSMETIC AND PLASTIC SURGERY CENTER OF CENTRAL PENNSYLVANIA, P.C., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-4924 Equity Civil Action - Equity NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, Lawrence K. Thompson, III, M.D. intends to serve subpoenas upon Patient Accounting Services, Inc. and Daniel Miller, CPA, identical to the ones which are attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. METTE, EVANS & WOODSIDE BY: ANDREW H. DOWLING, ESQUIRE Supreme Court I. D. No. 39692 3401 North Front Street P. 0. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Lawrence K. Thompson, III, M.D. DATED: 5/23/01 LAWRENCE K. THOMPSON, III, M.D., Plaintiff V. PETER GIESSWEIN, M.D. and COSMETIC AND PLASTIC SURGERY CENTER OF CENTRAL PENNSYLVANIA, P.C., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-4924 Equity Civil Action - Equity SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 -• a,„a ? ' ' -1u re uescs are Tor on inal materials not Photocopies) and shall include the lime frame from 2/23/99 to the present You are required to produced these records to: Andrew H. Dowling, Esq. METTE, EVANS & WOODSIDE at 3401 North Front Street Harrisburg PA 17110 (Address) You may deliver the original documents or produce things requested by this subpoena or make them available for inspection, together with the certificate of compliance, to the party making this request at the address listed above. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: ANDREW H. DOWLING ESQUIRE Address: METTE EVANS & WOODSIDE 3401 NORTH FRONT STREET HARRISBURG PA 17110 Telephone:_ (717) 232-5000 Supreme Court ID# 39692 ATTORNEY FOR: Plaintiff DATE: ase 'ZO c2cn / I Seal of the Court TO: Daniel Miller Certified Public Accountants 701 North Second Street Harrisburg, PA 17102 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: LAWRENCE K. THOMPSON, III, M.D., Plaintiff V. PETER GIESSWEIN, M.D. and COSMETIC AND PLASTIC SURGERY CENTER OF CENTRAL PENNSYLVANIA, P.C., Defendants No. 00-4924 Equity Civil Action - Equity SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 You are required to produced these records to: Andrew H. Dowling, Esq. METTE, EVANS & WOODSIDE at 3401 North Front Street Harrisburg PA 17110 (Address) You may deliver the original documents or produce things requested by this subpoena or make them available for inspection, together with the certificate of compliance, to the party making this request at the address listed above. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: ANDREW H. DOWLING. ESQUIRE Address: METTE EVANS & WOODSIDE 3401 NORTH FRONT STREET HARRISBURG PA 17110 Telephone: (717) 232-5000 Supreme Court ID# 39692 ATTORNEY FOR: Plaintiff DATE: M7 s/ r2? z/Yj! Seal of the Court IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TO: Patient Accounting Services Inc c/o Clark Dunkle, PO Box 180, 101 Noble Boulevard Carlisle PA 17013 _ (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, at Harrisburg, Pennsylvania, with first class postage prepaid, addressed as follows: James D. Hughes, Esquire IRWIN, MCKNIGHT & HUGHES West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 METTE, EVANS & WOODSIDE BY: G ANDREW H. DOWLING, ESQUIRE Supreme Court I. D. No. 39692 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Lawrence K. Thompson, III, M.D. DATED: 5/23/01 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, at Harrisburg, Pennsylvania, with first class postage prepaid, addressed as follows: James D. Hughes, Esquire IRWIN, MCKNIGHT & HUGHES West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 METTE, EVANS & WOODSIDE BY: -19=- ANDREW H. DOWLING, ESQUIRE Supreme Court I. D. No. 39692 3401 North Front Street P. 0. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Lawrence K. Thompson, III, M.D. DATED: June 20, 2001 .., _ =- F- _. .;i ,.. : ?? .. ,:; -? - :.; :; U CUMBERLAND PARTNERS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW OLYMPIC REALTY and DEVELOPMENT CORPORATION a/k/a OLYMPIC REALTY & DEVELOPMENT CORP., et al, Defendants NO. 99-5198 'e!V!-h TERM ORDER OF COURT AND NOW, this 29th day of August, 2001, upon consideration of the Motion of Circuit City Stores, Inc. for Protective Order Pursuant to Pa. R. Civ. P. 4012, and following a discovery conference held in the chambers of the undersigned judge on this date at which Plaintiff was represented by Stepehn M. Rae, Esquire, and Defendants were represented by Todd R. Bartos, Esquire, and Circuit City Stores, Inc. was represented by J. Michael Kunsch, Esquire, and pursuant to an agreement of counsel, it is ordered and directed as follows: 1. Within 30 days of today's date Circuit City Stores, Inc. shall serve upon Plaintiff a copy of the lease or other contract regarding the occupancy of Circuit City Stores, Inc. at Hampden Commons between Circuit City Stores, Inc. and Defendant Olympic Realty or any agent or agents of Olympic Realty. 2. Within 30 days of today's date Circuit City Stores, Inc. shall serve upon Plaintiff a copy of the portions of any correspondence between Circuit City Stores, Inc. and Olympic Realty or any agents of Olympic Realty regarding an undeveloped 8-acre parcel at Hampden Commons and/or "withdrawable real estate" at that site; provided, that the furnishing of such item or items shall be at the expense of Plaintiff and, provided further, that Circuit City Stores, Inc. shall notify Plaintiff's counsel of the anticipated cost of supplying these items, and Plaintiff shall have the right to decline to insist upon the provision of the items by Circuit City Stores, Inc. if it feels that the cost is too high. Nothing herein is intended to preclude Plaintiff from seeking further relief from the Court if it deems the costs suggested by Circuit City Stores, Inc. to be unreasonable. 3. This order shall be deemed to resolve the issue of the motion to strike the subpoena issued to Circuit City Stores, Inc. 4. The deposition notice contained in the subpoena is deemed withdrawn as to Circuit City Stores, Inc. Stephen M. Rae, Esquire Office Court at Walton Point 484 Norristown Road, STE 100 Blue Bell, PA 19422-2326 For the Plaintiff Todd R. Bartos, Esquire Stevens & Lee A Professional Corporation Harrisburg, PA 17108-1670 For the Defendants J. Michael Kunsch, Esquire Ste 1900 1515 Market Steet Philadelphia, PA 19102 For. Circuit City Stores, Inc. pcb By the Court,