HomeMy WebLinkAbout06-6015
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T, SHOEMAKER, ESQ.
IDENTIFICATION NO. 63871
ATTORNEY FOR PLAINTIFF
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
TAMMAC CORPORATION, now by
assignment, T AMMAC HOLDINGS
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION - LAW
R.B. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
NO. ()~ -IoDI S
C, (J l CT 8f2.. "'l
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 attorney and filing in writing with the Court your
defenses or objections to the claims set forth against you. You are warned that if you fail to do so the
case may proceed without you and a judgment may be entered against you by the Court without further
notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. TillS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
737794. ]
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIA nON
32 South Bedford Street
Carlisle, P A 17013
(717) 249-3166
-or-
PENNSYLVANIA LAWYER REFERRAL SERVICE
P.O. Box 1086, 100 South St.
Harrisburg, PAl 7108
(Pennsylvania residents phone:
1-800-692-7375; out -of-state
residents phone: 1-717-238-6715)
BY:
HOURIGAN, K~~R & QUINN, P.C.
\?-.~
-
James T. Shoemaker, Esquire
ill No,: 63871
Counsel for the plaintiff, Tammac Holdings
Corporation
737794.1
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY:
JAMES T. SHOEMAKER, ESQUIRE
ATTORNEY FOR PLAINTIFF
IDENTIFICATION NO, 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704-5815
(570) 287-3000
TAMMAC CORPORATION, now by
assignment, T AMMAC HOLDINGS :
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs,
CIVIL ACTION - LAW
R.B. MECHANlCSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
NO, O~ - ~6/S
C!/l..{'-y ~"1J.
COMPLAINT
The plaintiff, Tammac Corporation, now by assignment, Tammac Holdings Corporation
("Tammac"), by and through its counsel, Hourigan, Kluger & Quinn P,c., hereby complains
against the defendants R.B. Mechanicsburg Associates, L.P. and Mayer Pollock Steel
Corporation, as follows:
1. Tammac is a corporation conducting business in the Commonwealth of
Pennsylvania, having an office located at 100 Commerce Boulevard, Suite 200, Wilkes-Barre, P A
18702,
2. R.B, Mechanicsburg Associates, L.P, ("R,B.") is a Pennsylvania Limited
Partnership having a registered office located at 810 Seventh Ave, 281h Floor, New York, New
York 10019,
736819,1
3. Mayer Pollock Steel Corporation ("Mayer") is a Pennsylvania Corporation with a
registered office address of South Keirn Street, Pottstown, Pa 19464.
4. On Of about February 2, 1998, TammK lMde a loan to Anthony Cole and Cathy
Cole Gointly, the "Coles") in the amount of$21,323.50, as evidenced by a note (the "Note"), (A
true and correct copy of the Note is attached hereto as Exhibit "A" and incorporated herein by
reference. )
5. In order to induce Tammac to make the aforesaid loan, the Coles granted
Tammac a security interest in a 1981 Victorian Manufactured home, owned by the Coles, bearing
VIN IV7014CKD27138 (the "Collateral"), as further evidenced by the Commonwealth of
Pennsylvania Department of Transportation Certificate of Title, (A true and correct copy of the
Certificate of Title is attached hereto as Exhibit "B" and incorporated herein by reference.)
6, The Note was assigned to Vanderbilt Mortgage and Finance, Inc" and was then
further assigned back to Tammac.
7. The Coles defaulted under the terms of the Note by failing to make monthly
payments of principal and interest due under the Note,
8, The balance of the Note as of April 19, 2005 was $19,139.63, consisting of
principal in the amount of$17,323,37, and accrued interest in the amount of$I,816.26, exclusive
of attorneys' fees and costs.
9. Tammac believes and therefore avers that the Twigg Mobile Home Park in which
the Collateral was located was sold to R,B. on or about November 12, 2004, as evidenced by a
deed from Manufacturers and Traders Trust Co, to R,B. dated November 12,2004 and recorded
November 24,2004 in Cumberland County Record Book 266, pages 2023 et seq, (the
736819,1
"Premesis"). (A true and correct copy of the ~. Couaty ReconI Boat 266, pages 2023
et ..,. .~ hereto as Exhibit "e" and incorporated herein by r~e.)
10. On or about November 5,2004, R.B, and Lowe's "-Celleln,". ("Lo....s"),
entered into a ground lease agreement ("Lease") wherein a Lowe's retail store woukt be
constructed at the Premises. (A true and correct copy of the Memorandum of Ground Lease is
attached hereto as Exhibit "D" and incorporated herein by reference.)
11. Pursuant to the Section 3 ,} of the site development agreement (the "Site
Development Agreement") between R,B. and Lowe's, R,B. was responsible for the completion of
certain on-site improvement work related to the building pad area including the clearing and
grading. (A true and correct copy of the Site Development Agreement is attached hereto as
Exhibit "E" and incorporated herein by reference,)
12, Upon information and belief, Mayer was contracted by R,B. to perform the
demolition and clearing of mobile homes from the building pad area,
13, Upon information and belief, in or about November of2004, Mayer did perform
the demolition and clearing of the site,
14, Upon information and belief, in the course of performing the demolition and
clearing of the site, Mayer demolished the Collateral.
15, As a direct and proximate result of the actions ofR,B. and/or Mayer, Tammac has
been damaged, inasmuch as a balance of$19,139,63, plus interest from April 19, 2005 and
attorneys' fees and costs, remains on the Note, yet Tammac's Collateral has been destroyed..
WHEREFORE, Tammac demands judgment in favor of Tammac and against defendants,
R.B. Mechanicsburg Associates, L.P.. and Mayer Pollock Steel Corporation for damages in the
amount of $19,139.63, plus interest from April 19, 2005 and reasonable attorneys' fees and costs.
736819,1
600 Third Avenue
Kingston, PA 18704
(570) 287-3000 Telephone
(570) 287-8005 Facsimile
Dated: October i 0 , 2006
736819,1
BY:
Respectfully submitted,
HOURIGAN, KLUGER & QUINN, P,C.
\/----,
James T. Shoemaker, Esquire
ID No.: 63871
Counsel for the plaintiff, Tammac Holdings
Corporation
VERIFICATION
I, Amanda Heiges, hereby certify that I am a Paralegal with Tammac Corporation. I have
the authority to make this verification on its behalf. The statements contained in the foregoing
complaint are true and correct to the best of my knowledge or information and belief. I
understand that this verification is made subject to the penalties of 18 Pa. C.s. S4904 relating to
unsworn falsification to authorities.
!? - r:L ~N
~
695148.1
EXHIBIT
~
!:!I
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D1REC
UALLMENT LOAN TRUTH.IN.LENDING D1SCLosueJ;
Manufactured Home (Fixed Raf,lll
Dale: 2/2/98
NOTICE: ( ] If checlee!!, see separate
Itemization of Amount tmaneed
I I See HUD.IA
~NNUAL . FINANCE Amount Financed Total of Payments
ERCENTAGE CHARGE The amount of credit The amount the Borrower will
RATE The dollar amount the credit provided to the Borrower or have paid after Borrower has
The cost of the will cost the Borrower. on the Borrower's behalf. made all payments as scheduled.
Borrower's credit as a
yearly rate. 21,323.50 56,372.40
16.00(),Q $ 35,048.90 $ $
The Borrowe(s Pavment Schedule will be: e means an estimate
Number of Pavments Amount of Payments When Payments Are Due
180 $ 313.18 Monthly, beginning 3/2/98
Security: lender is getting a security interest in deposits or late Charge: [ ] Not Applicable, [X I" a payment is not made
property held by lender, and: within 15 days of its due date, Borrower may be charged the
[ I None, ( J Manufactured Home being purchased, GREATER of $ 20.00 or10.00 % of the
[ I Real Estate. [ I total amount of the payment which was not paid in full.
Prepayment If Borrower pays off early, Borrower will not have to
pay a penalty,
Required Deposit Balance: (X ] Not Applicable. ( I The
In addition, collaterallother than Borrowe(s principal residence) Annual Percentage Rate does not take into account your required
securing other obligations to lender may also secure this Note. deposit balance,
Security Interest Charges: Assumption: If this loan is secured by a dwelling, someone
purchasing that dwelling cannot assume the remainder of the loan on
I I None I X I Filing Fees $ 5.00 the original terms.
See your contract documents for any additional infonnation about nonpayment, default, any required repayment in full before the
scheduled date and prepayment refunds and penalties,
PROPERTY INSURANCE: You may choose the person through whom insurance is obtained against loss of or damage to the manufactured
home and against liability arising out of use or ownership of the manufactured home. If you obtain property insurance through us, the
premium costs for the msurance tenns indicated below are included in the item called To Property Insurance Company of the
ITEMIZATION OF AMOUNT FINANCED section of this Installment loan, In the section called YOUR PROMISES ABOUT INSURANCE
on the reverse side of this Contract, you aro promising to insure the manufactured home and keep it insured,
1- Manufaclured Home' ,221.00 Term ~Mos. Other
Physical Oamage Ins, IDOscribel
1- Comprehensive on $ INCL. Term ~os. _Other
Manufactured Home (Oescribel
lender:Ta;r.fc' Corporat I on
1- Fire and Theft
INCL.
Term ~os.
N/A
Itemization of Amount Financed
Amount Financed
$ 21,323.50
(II Amount given directly to Borrower
$ N/A
(2) Amount paid on Borrowe(s account
$ 19,980.00
(3) Amount retained by lender for
Closing Costs
$ 60.00
(4) Amount paid to others on Borrowe(s
behalf N/A
(a) to public officials
$ N/A
(b) to Credit Insurance Company.
$ N/A
(cl to Property Insurance Company
$ 1,221. 00
(dl to Tammac Corp
$ N/A
(el to Tammac Crdt
$ 35.00
(f) to TitlelReg
$ 22.50
(gl to VSI
$ N/A
(hi to Sales Tax
$ N/A
(i) to Filing Fees
$ 5.DO
Prepaid Finance Charve
$ N/A
Term _Mos.
. lender may receive a portion of
this amount
N/A
Term _Mos.
TOTAL CHARGES $1 ,221 . DO
CREDIT INSURANCE IS NOT REQUIRED: Credit life Insurance is not required to obtain credit, and will not be provided unless you sign below and agree to pay the additional cosl. Please
read the NOTICE OF PROPOSED CREDIT INSURANCE on the reverse side, Your insurance certificate or policy will tell you Ihe MAXIMUM amount of insurance available,
By signing, you select Single Credit life Insurance, which
costs $ NIA
What is your age?
Years
Signature of Buyer to be insured for Single Credit life Insurance
Insurer:
By signing, you both select Joint Credit life Insurance,
which costs $ N I A
What are
your ages?
Signature of both Buyers to be insured for Joint Credit life
Insurance
DIRECT INSTAllMENT LOAN NOTE
DEFINITIONS: In this Note, the word "Borrower" means each and all of those who sign
below and each and all of those who endorse the check which disburses the proceeds of
this loan.
The word "lender" means Tammac Corporation
or any person to whom this Note has been transferred.
BORROWER'S PROMISE TO PAY: To repay this loan, Borrower promises to pay to lender
$ 21 ,323 .50 , with interest on the unpaid balance from the date funds are
advanced until paid in full. Interest shall be paid at the rate per annum of 1 6 . DODO %.
Borrower promises to make payments in accordance with the payment schedule stated in
this Note. Borrower promises 10 pay to lender all other amounts which may become due
under the tenns of this Note, including, if applicable, late Charges and Costs of Collection,
Borrower agrees to make payments at the place designated by lender.
PA YMENT SCHEDULE: Borrower agrees to pay to lender the amounts due under this Note
in uninterrupted monthly payments: 180 payments of $ 313. 18
and a final payment, which will be billed by lender, of all remaining unpaid amounts.
Payments will be due on Ihe same day of each month starting on 312 198
Payments will continue until all amounts due are paid,
The date that the final payment is scheduled in this paragraph to be due is called the
"Maturity Date" of this Note.
lATE CHARGE: I I Not Applicable. I XI Borrower agrees that lender may assess a late
charge for any-payment not paid in full within 15 days of its due date, The late charge will
be the GREATER of $ 20.00 or 10.00 % of the total amount of the
payment which was not paid in full. No late charge will be due. however, if the reason that
the payment is late is either: {al attributable to a late charge assessed on a prior payment; or
(b) because, after default by Borrower, the entire outstanding balance on this Note is due.
No more than one late charge will be imposed for any single scheduled payment.
MULTIPLE PARTIES: If there is more than one Borrower, each agrees to be responsible to
lender. individually and together, for payment in full of this loan, Borrowers agree that
payment of all or part of the proceeds of this Note to any Borrower or to anyone else at the
direction of any Borrower will be the equivalent of payment to each Borrower and for the
benefit of all Borrowers.
2/2/98
Date
2/2/98
Oate
CO,MAKERS-SEE NOTICE TO CO.SIGNER ON THE REVERSE SlOE: Any Borrower who
is designated as a Co.Maker agrees to be equally responsible with all other Borrowers for
the payment of this loan and performance of all promises in this Note.
Co.Maker
Date
Co-Maker
Date
f'.
NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFDRMATION
COPY OF ORIGINAL
"'1997 BANCONSUMER SERVICE. INC.
PAS42A.11 (6/97/
TA'!.'"t:..:183
ADDITIONAL PROVISIONS
COMPUTING INTEREST: Interest is charged on a da~y basis, according to the outstanding
balance subject to interest on each day of the loan tenn, The daily interest rate is equal to
the annual interest rate in effect on that day divided by the number of days in that calendar
year, Borrower agrees that because interest is calculated on a daily basis, late payments
wiD result in additional interest (and, if applicable, a late charge); early payments will result
in less interest being charged.
APPLICATION OF PAYMENTS: L8flder will apply payments to satisfy interest, late
charves, fees and principal in the order as determined at the option of the Lender, AU regular
payments will be applied to the satisfaction of scheduled payments in the order in which
they become due,
WAIVER BY LENDER: If Borrower has made or makes in the future another loan agreement
with Lender, Lender mi1Iht obtain a security interest in the principal dwelling of Borrower or
someone else to secure that other loan agreement. That Security Agreement may provide
that the principal dwelling secures not only that other loan agreement but also all other loan
agreements of Borrower with Lender, Lender waives (gives up) any right to claim a security
interest in the principal dweUing of any person to secure this Note unless the security
interest is specifically given to secure this Note,
INTEREST AFTER MATURITY: Unless prohibited by applicable law, interest at the rate
provided in this Note shall continue to accrue on the unpaid balance until paid in fuR, even
after Iwhether by acceleration or otherwise) maturity andlor if judgment is entered against
Borrower for the amounts due, If at any time interest as provided for in this paragraph is not
permitted by law, interest shaR, in that event and at that time, accrue at the highest rate
allowed by applicable law.
PEFAULT: (As used in this paragraph, the term "Borrower" includes Borrowers, Co.Makers,
Guarantors, sureties, and any owner of property which is security for this Note,) Borrower
will be in default:
(al if Borrower does not make any payment before Of on the date it is due; or
(b) if Borrower fails to keep any promise made in this Note or defaults in any other note,
loan or agreement with Lender; or
lc) if anyone who signs the Security Agreement or a Mortgage securing this Note breaks
any promise made in the Security Agreement or Mortgage; including but not limited to
the promise not to seR, give away or transfer title to the property which is the subject
of the Mortgage or security interest; or
(d) if any property in which Lender has obtained a security interest to secure this Note is
lost, stolen (and not recovered within a reasonable timel Of destroy8ll; or
(e) if Borrower has made any untrue statement or misrepresentation in the credit
application or any other certificate or document given or made for this loan; or
(f) upon the death of Borrower or anyone of them, if there is more than one; or
(g) if Borrower provides Lender with false information or forged signatures at any time; or
(h) if a court with proper jurisdiction to do so finds that Borrower, or any one of them, is
incapacitated,
If Borrower is in defaull, the entire outstanding balance on this Note shall be immediately
due, at the option of the Lender, This will happen without any prior notice to Borrower, or
nghtto cure, except as may be required by law,
Borrower will also be in default:
m if Borrower becomes insolvent and/or cannot pay Borrower's debts as they become
due; or
ij) if any other creditor tries by legal process to take any money or property of Borrower in
the Lender's possession; or
(kl if Borrower files a bankruptcy petition or if anyone files an involuntary bankruptcy
against Borrower; or
(I) if Borrower makes an assignment for the benefit of creditors, or any insolvency,
reorganization, arrangement, debt adjustment, receivership, trusteeship, liquidation or
other legal or equitable proceedings are instituted by or against Borrower; or
(m) if any judgment, tax lien, municipal charge or tax levy is filed or writ of execution is
issued against Borrower,
If any event described in (i),m, (k), (II, or (m) happens, the entire outstanding balance on this
Note shall be immediately due without any prior notice to Borrower, or right to cure, except
as may be required by law,
A default by Borrower on this Note is a default on every other note, loan or agreement of
Borrower with Lender,
GENERAL WAIVER PROVISIONS: Borrower waives presentment for payment, demand,
protest, notice of protest, dishonor and all other notices or demands in connection with the
delivery, acceptance, performance, default or enforcement of this Note. Borrower further
waives any right to require due diligence in collection by Lender.
DELAY IN ENFORCEMENT: lender can dolay enforcing any rights undelthis Note without
losing any rights. Lender's failure to enforce any right under this Note shall not act as a
waiver of that right or preclude the exercise of that right in the event of a future occurrence
of the same event, Lender can also extend the time allowed for making payments,
and such extension shall not affect the ohligations of any Borrower, whether or not that
Borrower is given notice of the extension.
RELEASE OF SOME BORROWERS OR SOME SECURITY: If there is more thaR 01lE!
Borrower, each agrees to remain bound by this Note, although Lender may release any
other Borrower or release or substitute any property which is security for the repayment of
this Note, Borrower waives all defenses based on suretyship and inpairment of collateral
or security.
SECURITY INTEREST CHARGES: Borrower agrees to pay any recording, filing,
satisfaction and encumbrance fees which may be charged. The charges are to repay
Lender for the fees paid to public officials to protect, continue, or release any security
interest given in the Security Agreement or Mortgage.
PROPERTY INSURANCE: If property insurance and/or flood insurance is required under
this Note, a M Drtgage, or a Security Agreement. Borrower may obtain property and/or flood
insurance from anyone that is acceptable to Lender. If flood insurance is required,
Borrower has been separately notified.
PREPAYMENT: Borrower may prepay, in fun or in part, the amount owed on this Note at
any time without penalty. lf Borrower prepays the loan in part, Borrower agrees to
continue to make regularly scheduled payments until all amounts due under this Note are
paid.
BORROWER MAKES THE FOllOWING ADDITIONAL PROMISES TO lENDER: la) to
pay all taxes due on the Manufactured Home; {bl to allow Lender the right to inspect the
Manufactured Home at any reasonable time, and to maintain the Manufactured Home in
good condition and repair, reasonable wear and tear excepted; Ic) to keep the
Manufactured Home fully insured against loss or damage, as provided in the Security
Agreement and/or Mortgage; (dlto pay all filing fees necessary for Lender to obtain and
maintain its security interest, If Borrower fails to honor the promises to maintain insurance
in effect, or to pay filing fees, taxes or the costs necessary to keep the Manufactured
Home in good condition and repair, Lender may, if Lender alone chooses, advance any
sums Borrower promised to pay and obtain insurance, lf Borrower faas to maintain the
required insurance and provide Lender with evidence of that insurance, Lender may obtain
insurance to cover loss or damage to the Manufactured Home, Such insurance wal be
limited to an amount not greater than what Borrower owes on this Note, Any amount
Lender advances on Borrower's behalf will be added te the balance on which Lender
imposes Finance Charges at the Annual Percentage Rate of this Note, if permiUed by law,
and will be repayable, as Lender alone may specify: OJ immediately on demand; or (ii\ along
with the monthly payments, If Lender chooses to allow Borrower to repay the amounts
advanced in installments, and if permitted by law, Borrower agrees that Lender wal
increase the amounts of the monthly payments in an amount sufficient to repay the
amount Lender advanced at the Annual Percentage Rate of this Note, in substantially
equal payments from the date of the payment change over a term which Lender will
choose but which will not be longer than tho remaining term of this Note. Lender's
payments on Borrower's behalf will not cure Borrower's failure to perform Borrower's
promises in this Note. Borrower's promises made and Lender's rights set forth in this
section shall not merge with any jUdgment entered in any legal action and shall apply until
all amounts owed are paid in full,
LENDER MAY SIGN BORROWER'S NAME TO INSURANCE CHECKS: Borrower gives
Lender the right to sign Borrower's name on any check Of draft from an insurance
company. This is limited to a check or draft in payment of returned premiums or benefits
under credit life insurance or credit disability insurance, insurance covering property which
is security for this loan or flood insurance, This means that Borrower appoints Lender as
attorney.in.fact for Borrower with the full power to endorse checks or drafts.
COSTS OF COLLECTION: If Borrower is in default under this Note and Lender files suit, or
takes other action to collect this loan or protect the Manufactured Home, Borrower agrees
to pay costs of suit and, if permilled by law. reasonable attorneys' fees and expenses.
SECURITY INTEREST IN DEPOSITS: The Lender may set.oll any amounts due and
unpaid under this loan against any of Borrower's money on deposit with Lender, This
includes any money which is now or may in the tuture be deposited with Lender by
Borrower or with any co.depositor, including Borrower's spouse, This also includes any
property, credits, securities, or money of the Borrower, which may at any time be delivered
to or in the possession of the Lender. This may be done without any prior notic8 to
Borrower.
ASSIGNMENT: Borrower may not assign or otherwise transfer Borrower's rights under
this Note to anyone else. Lender may sell, transfer, or assign this Note, and any Security
Agreement and/or Mortgage given to secure this Note, and Borrower's rights and
obligations under this Note will continue unchanged,
HEIRS AND PERSONAL REPRESENTATIVES BOUND: The provisions of this Note shaR
be binding upon the Borrower, and the heirs and personal representatives of the Borrower.
GOVERNING LAW PROVISION: This Note and its validity, construction and enforceability
shall be governed by the laws of Pennsylvania, except to the extent that such laws have
been preempted or superseded by federal law.
NOTICE OF PROPOSED CREDIT INSURANCE
The Signer(s) of this Note hereby take(s) notice that Group Credit Life Insurance coverage andlor Group Credit Accident and Health Insurance
coverage will be applicable to this Note if so marked on the front side of this Note, and each such type of coverage will be written by the insurance
company named, This insurance, subject to acceptance by the insurer, covers only the person signing the request for such insurance. The amount of
charge IS indicated for each type of credit insurance to be purchasea, The term of the insurance will commence as of the date the indebtedness is
incurred and will. expire on the original maturity date of the indebtedness, Subject to acceJltance by the insurer and within 30 days, there will be
delivered to the insured debtor a certificate of insurance more fully describing the insurance. In the event of prepayment of the indebtedness a refund
of insurance charged will be made when due. '
FORM NPG.52
NOTICE TO CO-SIGNER
You are being asked to guarantee this debt. Think carefully before you do. If the Borrower doesn't pay the debt, you will have to,
Be sure you can afford to pay if you have to, and that you want to accept this responsibility.
You may have to pay up to the full amount of the debt if the Borrower does not pay, You may also have to pay late fees or
collection costs, which increase this amount,
The Lender can collect this debt from you without first trying to coUect from the Borrower. The Lender can use the same
collection methods against you that can be used against the Borrower, such as suing you, etc. If this debt is ever in default, that fact
may become a part of your credit record.
NOTICE -- ANY HOLDER OF TillS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES
WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT
HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED
AMOUNTS PAID BY THE DEBTOR HEREUNDER.
PAS42A.116197j
GOPY
SECURITY AGREEMENT
Date: 01/<;1/9Y
DEFINITIONS: In this Security Agreement, the word .Lender" means Tammac COrporation, 1140 ROUTE 315, WILKES-BARRE, PA 18111
which is the secured party,
The word "Borrower" means ANTHONY L COLE CATHY L COLE
If there Is more than one, the word Borrower means each of the Borrowers, and any Bonower, together with one
or more other Borrower andlor with one or more others, jointly and cofleclively.
The word .Owner" means each and all of those who sign this Security Agreement Below. The Owner is the person, or each and all of those if
more than one, to whom the Collateral belongs. The word "Collateral" means all of the property listed below. The Collateral is the property in
which the Owner is giving the Lender a security interest
Whenever used, the singular number shall include the plural, the plural shall include the singular; the use of any gender shall include all
genders; the word "person" shall include corporations, partnerships, and all other legal entities; and the words Owner, Lender, and Borrower
shall include their respective heirs, personal representatives, successors and assigns,
SECURITY INTEREST: Owner gives to Lender a security Interest in the Collateral described below, to seCUre the payment andlor performance
of the obligations listed below in the "Debts Secured" section.
DEBTS SECURED: This Security Agreement secures the payment to Lender of Borrower's loan in the principal amount of $ 21 ,323.50
plus interest, if the Note provides for payment of principal plus interest (if not, this Security Agreement secures the paYlJ1e?t to Lender of the
Bonower's loan in the lotal amount previously stated), according to the promises made in Borrower's "Note" dated .:>/~/9't , and the
performance of all promises of Borrower made in or in connection with that Note. This Security Agreement also secures payment of: (a) any
other debts of Borrower which are owed or assigned to Lender now or In the fulure; (b) any other debts of Owner which are owed or
assigned to Lender now or in the fulure: (c) all of Lender's costs and expenses, Including attorney's fees, Incurred in the collection of any debt
secured hereby, In any action to protect or enforce Lender's rights under this Security Agreemenl, or In bankruptcy proceedings of or against
Bonower or Owner; (d) all amounts which Owner agrees In this Security Agreement to pay to Lender; and (e) any refinancing, substitution,
extension and/or renewal of any of the above. Regardless of any other provisions of this Security Agreement. any household goods, as defined
in Federal Reserve Board Regulation M (12 C.F,R.227.12), in which Lender is getting a security Interest, do not secure debts which Borrower
or Owner owes to Lender, either now or in the fulure, other than that debt evidenced by the Note, unless such debts are extensions,
refinancings or consolidations of the Note.
OWNER: The Owner(s) of the Collateral is (are): ANTHONY L COLE
CATHY L COLE
Whose residence addressees) is (are): 194 HOLIDAY AVENUE, ,MECHANICSBURG, PA 17055
COLlATERAL: Owner gives to Lender a security interest in:1981 VICTORIAN 14X70 IV7014CKD27138
A Mobile Home, which will be kept at the address listed below, Including all accessories, equipment, parts and attachments, identified as
follows:
194 HOLIDAY AVENUE
MECHANICSBURG. PA 17055
The Owner agrees and represents that the Collateral is and/or will be used lor the following purpose and will not be used for any other
purpose without prior written notice to Lender: Personal, family or household purposes.
The Collateral [ ] is [ X ] is not now pennanently attached to a building or other real estate. The Collateral [ ] will [X ] will not be
pennanently attached to a builcllng or other real estate.
Owner gives Lender a security interest in the proceeds of any Collateral, including any insurance payable by reason of loss or damage to the
Collateral. Owner assigns, pledges and gives to Lender a security interest in any unearned insurance policies in connection with the
Collateral andlor the Indebtedness.
ADDITIONS TO COLlATERAL: Owner also gives to lender a security interest In any additions, replacements or substitutions which may be
made to the Collateral. This includes any equipment, parts or accessories which may be added to the Collateral in the future.
USE OF COLlATERAL: While any part of the money owed to Lender remains unpaid, Owner promises: (a) to use the Collat6l'al carefully and
keep it in good repair; (b) to obtain Lender's written permission belore making any major alterations; (c) 10 tell Lender in writing before
changing Owner's address or the address where the Collateral Is kept; (d) to help Lender protect the rights and security interest given by
this Agreement; (e) not to use the Collateral for any unlawful purposes; (I) if Owner has indicated that the Collateral is not and will not be
permanently attached to a building or other real estate, it is agreed that the Collateral will remain personal property; (g) to keep the Collateral
free of liens, adverse claims, and encumbrances other than the security Interest of Lender; (h) to make the Collateral available to Lender lor
inspection on request; and (i) to notify the Lender immediately il the Collateral is lost, damaged, stolen or destroyed, or if the Collat6l'al is
attached, levied, seized, or becomes the subject of an adverse claim.
OWNERSHIP OF COLLATERAL: Owner promises that Owner owns all 01 the Collateral listed above. Owner promises that no one else has
any interest in the Collateral or a claim against it Owner agrees that the Collateral will not be sold, leased, or given to anyone else as
collateral until the money owed to Lender has been repaid in full.
ADDITIONAL PROVISIONS ON THE REVERSE SIDE ARE PART OF THIS SECURITY AGREEMENT.
COpy RECEIVED: The Owner acknowledges receipt 01 a completely filled.in copy 01 this Security Agreement
Owner:
Date
oJ -,;)-9P
,Q-,;).91
Owner:
Dale
Owner: Date
Owner: Date
NOTICE: SEE REVERSE SIDE FOR fMPORTANT INFORMATION
ORIGINAL SCRTYF
1AM-{l2183.
ADDITIONAL PROVISIONS
TAXES AND INSURANCE: White any part of the money owed to lender remains unpaid, Owner promises: (a) to pay all taxes due on the
Collateral; lender has the option to pay the taxes. On demand, Owner promises promptly to repay to lender any amounts paid by lender
for taxes; (b) to keep the Collateral fully Insured against loss or damage. Owner promises to make this Insurance policy payable to Lender In
an amount equal to the value of the Collateral or the unpaid balance of Borrower's loan, whichever is less. Owner agrees to deliver proof of
Insurance to lender, n requested, Owner agrees to obtain Insurance from a company acceptable to lender. If Owner does not keep the
Collateral Insured, lender has the option of purchasing Insurance. On demand, Owner promises promptly to repay to Lender the cost of
Insurance purchased by lender; in addition, at Lender's option, Lender may require Borrower to repay the cost of Insurance purchased by
lender efther on demand or by increasing the amount of the installment payments which are due on the Note secured by this Security
Agreement. (c) Owner gives lender the right to sign Owner's name on any check or draft from an insurance company and to apply the
money to any debt secured by this Security Agreement. This is limited to checks and drafts in payment of a claim under an insurance policy
for loss or damage to the Collateral or for returned or rebated premiums on policies insuring the Collateral.
DEFAULT: If Owner is in default under this Agreement, Lender May enforce its security interest in the Collateral as provided by law and in
this Agreement. This may be done without giving any advance notice or making any demand, unless provided by applicable law. Owner
wUl be in default if: (a) Borrower breaks any promise made in fts Note to lender; (b) Owner breaks any promise made in this Security
Agreement; (c) Borrower or Owner breaks any other promise made to lender in connection with any debt which is secured by this Security
Agreement; (d) Owner or Borrower Is in default under any other Note, Mortgage, or Agreement wfth lender; (e) the Collateral is lost,
destroyed beyond repair, or stolen (and not recovered within a reasonable time); (I) Owner dies; (g) any other creditor tries to take the
Collateral by legal process; (h) the Owner files bankruptcy or if anyone files an involuntary bankruptcy against in the Owner; (i) any tax lien or
levy is filed or made against the Owner or the Collateral; OJ Owner has made any false statement in this Agreement; (k) the Collateral is
seized by federal, state, or local govemment which alleges that the Collateral was used for unlawful purposes.
ENFORCING THE SECURITY INTEREST: If the Owner is in default, Lender may, without notice or demand, unless required by law, enforce
its security interest in the Collateral as follows: (a) Lender may take possession of the Collateral, This may be done wfthout any advance
notICe to Owner, unless required by law. lender may enter any property or building where the Collateral is located, If this Is done
peaceably. Lender is not responsible for any property not covered by this Agreement that is left Inside the Collateral or attached to it; (b)
Owner agrees to deliver the Collateral to lender at a time and place chosen by lender; (c) lender may enforce Its security Interest by any
and all remedies pennitted andlor authorized by law.
DELAY IN ENFORCEMENT: lender can delay enforcing any rights under this Security Agreement without losing them. lender's failure to
enforce any rights under this Security Agreement shall not act as a waiver of those rights or preclude the exercise of those rights In the event
of a future occurrence of the same event.
CHANGE OF TERMS: If the terms of any Note or debt secured by the Collateral are changed, the security interest given by this Agreement
will continue to protect lender.
RElEASE OF SOME OWNERS OR SOME SECURITY: If there is more than one Owner, each agrees tQ be bound by this Security Agreement,
although lender may release any other Owner or release or substiMe any Collateral. If any extension is allowed Borrower by lender, ft shall
not affect any provisions of this Security Agreement, whether or not Owner is given notice of the extension,
FINANCING STATEMENTS AND SECURITY AGREEMENTS: Owner agrees to sign such finanCing statements, security agreements or other
documents as lender believes necessary to pennit Lender to get and keep a perfected security interest in the Collateral. Owner gives to
lender the power to sign Owner's name on financing statements. A copy or reproduciion of a financing statement or this Security
Agreement may be filed as a financing statement If the Collateral is now or will be permanently attached to real estate, the filing will be in
the real estate records. If the Collateral Includes a motor vehicle or mobile home, Owner promises to deliver to Lender the certificate of tftle
for the Collaleral wllhin 30 days from the date of this Agreement The security interest in favor of lender in the amount of Borrower's loan
secured will be noted on the certificate of title when it is delivered.
ORIGINAL
SCRTYB
SECURITY AGREEMENT
, I
Date: r:-' /::7/ '1 Y
DERNITIONS: In this Security Agreement, the word "Lender" means Tammac Corporation, 1140 ROUTE 315, WilKES-BARRE, PA 18711
which Is the secured party,
The word "Borrower" means ANTHONY L COLE CATHY L COLE
If there Is more than one, the word Borrower means each of the Borrowers, and any Borrower, together with one
or more other Borrower anellor with one or more others, jointly and COllectively.
The word .Owner" means each and all of those who sign this Security Agreement Below. The Owner is the person, or each and all of those if
more than one, to whom the Collateral belongs. The word "Collateral. means all of the property listed below. The Collateral is the property in
which the Owner is giving the Lender a security interest
Whenever used. the singular number shall include the plural, the plural shall include the singular; the use 01 any gender shall include all
genders; the word "person" shall include corporations, partnerships, and all other legal entities: and the words Owner, Lender, and Borrower
shall include their respective heirs, personal representatives, successors and assigns.
SECURITY INTEREST: Owner gives to Lender a security interest in the Collateral described below, to secure the payment and/or performance
of the obligations listed below in the "Debts Secured" section.
DEBTS SECURED: This Security Agreement secures the payment to Lender of Borrower's loan in the principal amount ot $ 21 323. 50
plus interest. if the Note provides for payment of principal plus Interest (if not, this Security Agreement secures the paYlJlentto Lender ';f the
Borrower's loan In the total amount previously stated), according to the promises made in Borrower's "Note" dated ~y ::2/91 , and the
performance of aU promises of Borrower made In or in connection with that Note. This Security Agreement also secures payment of: (a) any
other debts of Borrower which are owed or assigned to Lender now or In the future; (b) any other debts of Owner which are owed or
assigned to lender now or in the future: (c) all of Lender's costs and expenses, including attorney's fees, incurred In the collection of any debt
secured hereby, in any action to protect or enlorce Lender's rights under this Security Agreement, or in bankruptcy proceedings of or agalnsl
Borrower or Owner: (d) all amounts which Owner agrees in this Security Agreement to pay to Lender; and (e) any refinancing, substitution,
extension anellor renewal of any of the above, Regardless of any other provisions of this Security Agreemenl, any household goods, as defined
in Federal Reserve Board Regulation AA (12 C.F.R227,12), in which Lender is getting a security interesl, do oot secure debfs which Borrower
or Owner owes to Lender. either now or in the future, other than that debt evidenced by the Note, unless such debls are extensions,
refinancings or consolidations of the Note,
OWNER: The Owner(s) of the Collateral is (are): ANTHONY l COLE
CATHY L COLE
Whose resfdenceaddress(es) is (are): 194 HOLIDAY AVENUE, . MECHANICSBURG, PA 17055
COUATERAl: Owner gives to Lender a security Interest in: 1981 VICTORIAN 14 X70 IV7014CKD27138
A Mobile Home, which will be kept at the address listed below, including all accessories, equipment, parts and attachments, identified as
follows:
194 HOLIDAY AVENUE
MECHANICSBURG, PA 17055
The Owner agrees and represents that lhe Collateral is and/or will be used for the following purpose and will nol be used tor any other
purpose without prior wrillen notice to Lender: Personal, family or household purposes.
The Collaleral [ J is [ X J is not now permanently attached to a building or other real estate. The Collaleral [ I will [X ] will nol be
permanently allached to a building or other real estate.
Owner gives Lender a security interest in the proceeds of any Collateral, including any insurance payable by reason ot loss or damage to Ihe
Collateral. Owner assigns, pledges and gives 10 Lender a security interest in any unearned insurance policies in connection wilh the
Collateral anellor the indebtedness.
ADDiTIONS TO COUATERAL Owner also gives to Lender a security inlerest in any addllions, replacements or substitutions which may be
made to the Collateral. This includes any equipment, parts or accessories which may be added to the Collateral in Ihe future.
USE OF COUATERAL: While any part of the money owed to Lender remains unpaid, Owner promises: (a) to use the Collateral carefully and
keep II In good repair; (b) to obtain Lender's wrillen permission before making any major alterations; (c) to tell Lender in writing before
changing Owner's address or the address where the Collateral is kepI; (d) to help Lender protect the rights and security inlerest given by
this Agreement; (e) not to use the Collateral for any unlawful purposes: (f) if Owner has indicated that the Collaleral is not and will not be
permanently attached to a building or other real estate, it is agreed that Ihe Collateral will remain personat property: (g) \0 keep Ihe Collaleral
free of liens, adverse claims, and encumbrances other than the security interest of Lender: (h) to make the Collateral available to Lender for
inspection on request; and (i) to notify the Lender immediately If the Collateral is Iosl, damaged, stolen or destroyed, or if the Collateral is
allached, levied, seized, or becomes the subject of an adverse claim.
OWNERSHIP OF COUATERAL: Owner promises that Owner owns all of the Collaterat listed above. Owner promises that no one else has
any interest in the Collateral or a claim against k. Owner agrees that the Collateral will nol be sold, leased, or given 10 anyone else as
collaleral until the money owed to Lender has been repaid in full.
ADDITIONAL PROVISIONS ON THE REVERSE SIDE ARE PART OF THIS SECURITY AGREEMENT.
COPY RECEIVED: The Owner acknowledges receipt of a completely filled-in copy of this Security Agreement
Owner:
Date
J -..:J- 9P
..:2-.;)-qr
Owner:
Date
Owner: Date
Owner: Dale
NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION
ORIGINAL SCRTYr
TAM-:l2183
AoomONAL PROVISIONS
TAXES AND INSURANCE: While any part of the money owed to Lender remains unpaid, Owner promises: (a) to pay all taxes due on the
Collateral; lender has the option to pay the taxes. On demand, OWner promises promptly to repay to lender any amounts paid by lender
for taxes; (b) to keep the Collateral fully insured against loss Qf damage, Owner promises 10 make this Insurance policy payable to lender In
an amount equal to \he value of the CoUateral Of \he unpaid balance 01 Borrower's loan, whichever Is less. Owner agrees to deliver proof of
insurance to Lender, if requested. Owner agrees to obtain insurance from a company acceptable to lender. If Owner does not keep the
Collateral Insured, Lender has \he option of purchasing insurance, On demand, Owner promises promptly to repay to Lender the cost of
Insurance purchased by Lender; In addition, at lender's option, lender may require Borrower to repay the cost of insurance purchased by
lender either on demand or by increasing the amount of the InstaUment payments which are due on the Note secured by this Security
Agreement. (c) Owner gives lender the right to sign Owner's name on any check or draft from an insurance company and to apply the
money to any debt secured by this Security Agreement. This is limited to checks and drafts in payment of a claim under an insurance policy
tor loss or damage to the Collateral or for returned or rebated premiums on policies Insuring the Collateral.
DEFAULT: If Owner is in defauil Ullder this Agreement, Lender May enforce Its security Interest in the Collateral as provided by law and In
this Agreement. This may be done without giving any advance notice or making any demand, unless provided by applicable law, Owner
will be in defauil if: (a) Borrower breaks any promise made in its Note to Lender; (b) Owner breaks any promise made in this Security
Agreement; (c) Borrower Of Owner breaks any other promise made to Lender in connection with any debt which Is secured by this Security
Agreement; (d) Owner or Borrower is in defaull under any other Note, Mortgage, or Agreement with Lender; (e) the COllateral is lost,
destroyed beyond repair, or stolen (and nO! recovered within a reasonable time); (I) Owner dies; (g) any other creditor tries to take the
CoUateral by legal process; (h) the Owner files bankruptcy or if anyone flies an involunlaty bankruptcy against in the Owner; (il any tax lien or
levy Is filed or made against the Owner or the Collateral; Q) Owner has made any false statement in this Agreement; (k) the Collateral is
seized by federal, state, or local government which alleges that the Collateral was used for unlawful purposes.
ENFORCING THE SECURITY INTEREST: If the Owner Is In defautt, Lender may, without notice or demand, unless required by law, enlorce
its security interest In the CoUateral as follows: (a) Lender may take possession of the Collateral. This may be done wtthout any advance
notice to Owner, unless required by law, Lender may enter any property or building where the Collateral Is located, If this is done
peaceably, Lender Is not responsible for any property not covered by this Agreement that Is left inside the Collateral or attached to it; (b)
Owner agrees to deliver the Collateral to Lender at a time and place chosen by lender; (c) Lender may enforce Its security interest by any
and all remeOl6S permitted and/or authoriZed by law.
DELAY IN ENFORCEMENT: lender can delay enforcing any rights under this Security Agreement without losing them. lender's lailure to
enforce any rights under this Security Agreement shall not act as a waiver 01 those rights or preclude the exercise 01 those rights in the event
of a future occurrence of the same event
CHANGE OF TERMS: If the terms of any Note or debt secured by the Collateral are changed, the security interest given by this Agreement
will continue to protect Lender.
RELEASE OF SOME OWNERS OR SOME SECURITY: If there is more than one Owner, each agrees to be bound by this Security Agreement,
allhough Lender may release any other Owner or release or substitute any Collaleral. tf any extension is allowed Borrower by lender, tt shall
not alfect any provisions of this Security Agreement, whether or not Owner is given notice of the extension,
ANANC1NG STATEMENTS AND SECURITY AGREEMENTS: Owner agrees to sign such financing statements, security agreements or other
documents as lender believes necessaty to permit Lender to get and keep a perfected security interest in the CoUateral. Owner gives 10
Lender lhe power to sign Owner's name on financing statements, A copy or reproduction of a financing statement or this Security
Agreement may be filed as a financing statement. lithe Collateral is now or will be permanently attached 10 real estate, the filing will be in
the real estate records. lithe Collateral includes a motor vehicle or mobile home, Owner promises to deliver to lender the certificate 01 lttle
for the Collateral within 30 days from the date of this Agreement. The security interest In favor of Lender in the amount of Borrower's loan
secured will be noted on the certificate of title when it is delivered.
ORIGINAL
SCRTYS
_~~~~~'I'liII.!.'''lii~~~~~~~~~~~_~!!~~C
( r<i; ." OEPARTMIiNT OF TRAINSf:.ORTATtOW
. ~ER;tUf.ICZ:ATE OF TITLEF,qR ~~Ettll~,kE
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.mfiqtETER DISCLOSURE EXEHPT8Y
A~!STli!~D OWNER(S)
. c' ,..tONY L & CATHY L
]'CfltfHOl.IOAY AVE
HEC~AHICS8URG PA 17055
F'EOEfUt
LAW
/
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SECOND LlENFAVOR DE
CORP
"
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DATE
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ft~h~:~n~~:~,:'~ ~j:S\~e ugmthesa~~~~~nOfO~~r f~~~s wllh
appropriate form and fee.
...---
.\ SECOND LIEI'! RELEASED
AllTHORlZEO REPJ1ESENTATlVE
BY
AuTHORIZED REFRESENTATIVE
068001
TAHMAC CORP
275 MUNDY ST
WILKES BARRE\PA 18702
\
I c~~.:-:i~<\lf the - d'Bt.9:"9i__:$.sue', the official records of the, Pennsylvania Department
of Transportation reflect that the person{s) or c6mpany named herein is the lawful owner
of the said vehicle,
BRAOU:Y L I1Al.LORY
/
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EXHIBIT
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~.J-~ 10- dO- 1841>- 02.3
" . /I.
THIS DEED hl~de ttJ.is ItZ::. day of November, 2004 between
MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking
corporation, a successor by merger to Dauphin Deposit Trust Company, having offices at One
M&T Plaza, 10th Floor, Buffalo, New York 14203 (hereinafter caned the "Grantor") and RB
MECHANICSBURG ASSOCIATES LP, a Pennsylvania limited liability company, having
offices at c/o RD Management Corp., 810 Seventh Avenue, 28111 Floor, New York, New York
10019 (hereinafter called the "Grantee").
W!TNE~~ETH ~ .:>
c::::>
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= .. .0
That the said Grantor for and in consideration of the sum of One Hundred c::: ':C; 9 ~
Thousand and 00/100 Dollars ($100,000.00) lawful money of the United States of Americ~~ ~.; ~
it well and truly paid by the said Grantee at or before the sealing and delivery hereof, the receipb ~ ;0
whereof is hereby acknowledged, has granted, bargained and sold, released and confinn~d "~ ~ :::.!
by these presents does grant, bargain and sell, release and confirm unto the said Grantee, ~ t:;> ~
,.-.,. ,r"
successors and assigns, in fee; ~ '. ::: ;
o ~'-.
...... . : --
See ExMbit A attached hereto and incorporated herein.
BEING a portion of the same which Capitol Productions Corporation conveyed
unto Dauphin Deposit Trust Company, a predecessor by merger to Manufacturers and Traders
Trust Company, in fee by deed dated October 28, 1965 and recorded in the Office of the
Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book U, No.2 I, Page
138.
TOGETHER with all and singular the buildings, improvements, ways, streets,
alleys, driveways, passages, waters, water-courses, rights, liberties, privileges, hereditaments and
appurtenances, whatsoever unto the hereby granted premises belonging, or in any wise
appertaining, and the reversions and remainders, rents, issues, and profits thereof; and all the
estate, right, title, interest, property, claim and demand whatsoever of the said Grantor, as well at
law as in equity, of, in, and to the same,
TO HAVE AND TO HOLD the said lot(s) or piece(s) of ground above described
with the buildings and improvements thereon erected, hereditaments and premises hereby
granted, or mentioned, and intended so to be, with the appurtenances, unto the said Grantee, its
successors and assigns, to and for the only proper use and behoof ofthe said Grantee, its
successors and assigns, forever, as partnership property.
AND the said Grantor will warrant specially the property hereby conveyed.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK]
BOOK 266 PAcr2023
BRMFS1 530698v5
~
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!
EXHIBIT
tlc."
"I
IN WITNESS WHEREOF, the said Grantor has caused these presents to be duly
executed dated the day and year first above written,
ATTEST:
MANUFACTURERS AND TRADERS
TRUST COMPANY
BY:~~
Name: Natalie Fi atrick
Title: Vice President
STATE OF NEW YORK )
)S8.:
COUNTY OF Etf'.J'~ )
On this the 16""'day of November, 2004, before me, a notary public the
Wldersigned officer, personally appeared Natalie Fitzpatrick who acknowledged herselfto be the
Vice President of Manufacturers and Traders Trust Company and that she as such Vice
President being authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of the corporation by herself as Vice President.
IN WITNESS WHEREOF, I hereWlto set my hand and official seal.
~/t9 7fJ,~'
NOTARY PUBLIC
CYNTHIA M. ORSI No.010R<007718
Nobry Public, Slate of N~I Yorl<
Qua"r.ed In Nla'3r& Cour~
My Commission ex,:w. June", 20"
-2-
BOOK 266 PAGE2024
FlRMFSJ 5J0698v5
EXHIBIT A
Le2&l Description
ALL that tract of real estate lying and being situate in the township of Hampden. County of
Cumberland, Commonwealth of Pennsylvania. designated as Additional Lands, 16,273.66
S.F., 0.37 acres, as shown on RB Mechanicsburg Associates, LP, PreliminarylFinal
Subdivision Plan dated June 17.2004, revised July 23, 2004. by J. Michael Brill &
Associates, Inc., Page 2 of 13. duly (~rVed for su~vjsion purposes, and recorded in
Cumberland County Plan Book Page 1.-36'; more fully bounded and described
as follows:
BEGINNING at a point in the southerly right of way line of Carlisle Pike (SR (011),
said point being located a distance of 27.45 feet west of the northwestern most comer of
lands now or formerly of Twigg Family Trost; TIIENCE along said right of way. South
64 degrees 58 minutes to seconds East. a distance of 27.45 feet to a steel re-bar pin;
THENCE along lands now or fonnerly of Twigg Family Trust, South 00 degrees 53
minutes 17 seconds East, a distance of 242.61 feet to a steel rebar pin; THENCE along
lands now or formerly of Cumberland Partners, K-Mart, North 64 degrees 56 minutes17
seconds West, a distance of 198.84 feet to point; THENCE along lands now or formerly
of Dauphin Deposit Trust Company, the following six (6) courses and distances; (1)
North 25 degrees 03 minutes 43 seconds East, a distance of 8.00 feet to a point; (2) South
73 degrees 56 minutes 24 seconds East, a distance of 27,93 feet to a point; (3) by a curve
to the left, having a radius of 65.00 feet, an arc length of 92.95 feet, the chord bearing of
said curve being North 65 degrees 24 minutes 11 seconds East, a chord distance of 85.23
feet to a point; (4) North 24 degrees 26 minutes to seconds East, a distance of 85.00 feet
to a point; (5) by a curve to the left, having a radius of 30.00 feel, an arc length of 32.89
feet, the chord bearing of said curve being North 06 degrees 58 minutes 05 seconds West,
a chord distance of 31.26 feet to a point; (6) North 25 degrees 01 minutes 50 seconds
East. a distance of 29.30 feet to a point, said point being the POINT OF BEGINNING.
800K 266 PAGf2025
-3-
BRMFS I S30698vS
DEED
MANUFACTURERS AND TRADERS TRUST COMPANY, GRANTOR
TO
RB MECHANICSBURG ASSOCIATES LP, GRANTEE
PREMISES:
Certified By:
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New York, New York 10019
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Memorandum of Ground Lease
MEMORANDUM OF GROUND LEASE
THIS MEMORANDUM OF GROUND LEASE ("Memorandum") is made and
entered into as of the date of the last execution, which date is the _ day of November, 2004, by
and between RB MECHANICSBURG ASSOCIATES LP, a Pennsylvania limited partnership
having an office c/o RD Management Corp., 810 Seventh Avenue, New York, New York 10019
("Landlord"), and LOWE'S HOME CENTERS, INC" a North Carolina corporation with its
principal office at Highway 286 East, North Wilkesboro, North Carolina 28659 ("Tenant").
W!TNE~~ETH:
WHEREAS, Landlord and Tenant entered into that certain Ground Lease dated as of an
even date with this Memorandum ("Lease");and
WHEREAS, the Lease pertained to certain premises located in Hampden Township,
Cumberland County, Pennsylvania which are more particularly described on Exhibit A attached
hereto ("Premises"); and
WHEREAS, Landlord and Tenant desire to evidence the Lease of record.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord does
hereby demise, lease and let unto Tenant the Premises, as follows:
1, The Original Term of the Lease shall be for an approximate twenty-five (25) year
period, subject to six (6) additional Extension Terms of five (5) years each,
exercisable at Tenant's option. The Original Term wiII commence on the date of the
Lease and will expire on 11 :59 p,m. of the day prior to the twenty-fifth (25th)
anniversary of the Rent Commencement Date. A memorandum setting forth the
actual Rent Commencement Date will be recorded at a later date.
2, The Lease contains a right of fItst offer in favor of Tenant should Landlord desire to
Transfer the Premises or assign its rights in the Lease.
3. This Memorandum is subject to all conditions, terms and provisions of the Lease,
which agreement is hereby adopted and made a part hereof by reference to the same
in the same manner as if all the provisions thereof were copied herein in full,
4. This Memorandum is entered into by the Parties, and is to be recorded only to set
forth the Lease as a matter of record. Nothing contained in this Memorandum shall
be deemed to modify, amend, alter, limit or otherwise change any of the provisions of
the Lease or the rights and obligations of the Parties thereto as provided therein. In
the event of a conflict between the terms of the Lease and this Memorandum, the
Lease shall prevail. Reference should be made to the Lease for a more detailed
description of all matters contained in this Memorandum.
5. Capitalized terms not defined herein shall have the meaning as set forth in the Lease,
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\\ny-srvO\\\ 00271l vO\\45\90,02\1 00
Mechanicsburg, PA
Memorandum of Ground Lease
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum
effective as of the date first written above.
\\ny-srvOI\I00271 IvOI\45 190,021 100
RB MECHANICSBURG ASSOCIATES LP
By: RJB-MECHANICSBURG LLC
its General Partner
BY:~-~'~ ~~
Name: Ric-\>"...c:! 'Piy.Jeo1+
Title: ~bex-
LOWE'S HOME CENTERS, INC.,
~
David E. Shelton
Senior Vice President
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Mechanicsburg, PA
Memorandum of Ground Lease
STATE OF NEW YORK )
) 55
COUNTY OF ~ ~11 )
Before me, a Notary Public in and the said State and County, duly commissioned and qualified,
personally appeared ~ ~ ' as 0rtD_~ 1~ , of RJB
MECHANICS BURG LLC, the general partner of RB MECHANICSBVRG ASSOCIATES
LP, to me known to be the person described in and who executed the foregoing instrument and
acknowledged that he executed the same as his free act and deed.
Sworn to and subscribed before me this ~ n<-cl day of ~.bL, J, 2004.
~~
Notary Public
JOAN MERCANTE
Notary PubJic, Sta.te of New York
No. 01 ME5012l29
Qualified In Queens County
Certificate Flied In New York County
CommIssion Expires January 27, ~ 0 en
STATE OF NORTH CAROLINA
)
) ss
)
COUNTY OF WILKES
Before me, a Notary Public in and the said State and County, duly commissioned and qualified,
personally appeared I:o..~-\c\ Cf:. ~~L, ~-t-u~ duly authorized representative of LOWE'S
HOME CENTERS, INC., to me known to be the person described in and who executed the
foregoing instrument and acknowledged that he/she executed the same as hislher free act and
deed.
Sworn to and subscribed before me this
~ay of J\~b4 ,2004.
OfFICIAl. SEAL
AWSON W. W1KE
NOTARY PUBUC-NOATH CAAOUNA
coum'( OF CALOYif:l\.
My ~ uplresJ/~. Cf
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Notary Public
\\ny-srvOI \1002711 vOI\45190.0211 00
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Mechanicsburg. PA
Memorandum of Gr';lUnd Lease
EXHIBIT A
. Legal Description
Beginning at a reference point. said point being located on the southern right-of-way line of Carlisle Pike
(S.R. 0011) and the western right-of-way line of Van Patten Drive (also lands now or formerly of the
United States of America); thence along the western right-of-way line of Van Patten Drive South 02
degrees 27 minutes 34 seconds East a distance of 307.02 feet to a point, said being the POINT OF
BEGINNING;
Thence from said point of beginning along the western right-of-way line of Van Patten Drive South 02
degrees 27 minutes 34 seconds East a distance of 580.21 feet to a point, said point being the
northeastern property corner of lands to be conveyed to Hampden Township; thence along said lands to
be conveyed to Hampden Township the following three (3) courses and distances:
1, South 87 degrees 32 minutes 26 seconds West a distance of 15.00 feet to a point;
2. South 02 degrees 27 minutes 34 seconds East a distance of 190.00 feet to a point;
3, North 76 degrees 08 minutes 58 seconds West a distance of 714.24 feet to a point;
Said point being the southeastern property corner of lands now or formerly of Cumberland Partners Lot 3;
thence along the western property line of said lands of Cumberland Partners (Lot 3) and other lands now
or formerly of Cumberland Partners North 00 degrees 53 minutes 17 seconds West a distance of 746.94
feet to a point; said point being the southwestern boundary corner of Common Elements of RB
Mechanicsburg Associates, LP; thence along the southern boundary line of said Common Elements the
following five (5) courses and distances:
1. North 87 degrees 32 minutes 26 seconds East a distance of 274.59 feet to a point;
2. Along a curve to the right having a radius of 100,00 feet and an arc length of 47.94 feet, said
curve having a chord bearing of South 78 degrees 43 minutes 29 seconds East and a chord
length of 47.49 feet to a point;
3. South 64 degrees 59 minutes 24 seconds East a distance of 339.72 feet to a point;
4. Along a curve to the left having a radius of 80,00 feet and an arc length of 38,25 feet, said curve
having a chord bearing of South 78 degrees 41 minutes 14 seconds East and a chord length of
37.89 feet to a point;
5. North 87 degrees 36 minutes 57 seconds East a distance of21.08 feet to a point;
said point being the POINT OF BEGINNING.
The above described tract contains 546,972,20 square feet or 12.56 acres as depicted on the Site Plan
\\ny.srvO III 00271 IvOIl45 I 9D.02 1 1 00
Mechanicsburg, PA
Site Development Agreement
SITE DEVELOPMENT AGREEMENT
Between
LOWE'S HOME CENTERS, INC.
and
RB MECHANICSBURG ASSOCIATES LP
Dated: November.--J 2004
Carlisle Pike (PASt. Highway 11) and Van Patten Drive
Tax Parcel Number 10-20-1842-082 and
a portion of Tax Parcel Number 10-20-1840-023
Mechanicsburg, Pennsylvania
\~y-srvOl \990504v09\11l3/04\4S190,021 100
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Mechanicsburg, PA
Site Development Agreement
TABLE OF CONTENTS
SECTION
PAGE
SECTION 1 SITE IMPROVEMENT PLANS....... ..... ............................ .........,....... ...,.... ,........ ....1
SECTION 2 ON-SITE AND OFF-SITE IMPROVEMENT WORK.......,......,...................,..,.....3
SECTION 3 SCHEDULE FOR SITE IMPROVEMENT WORK ...........................,...................3
SECTION 4 CONSTRUCTION/INSTALLATION OF SITE IM:PROVEMENT WORK..........7
SECTION 5 PAYMENT OF PROJECT COSTS ,........................................................................9
SECTION 6 TAKE-OVER BY LOWE'S ...................,.................." ......,.... .............................. .12
SECTION 7 PREPARATION OF LOWE'S BUILDING PAD AREA .....................................13
SECTION 8 DEVELOPER'S FINANCIAL GUARANTY ...............................................,.......14
SECTION 9 DEVELOPER'S WARRANTy...,................... ............. '......., ................................17
SECTION 10 lNDEMNITY AND INSURANCE......................................................................18
SECTION 11 BANKRUPTCy.....,., ............,. ..,..... ...............,. ........,...,.......,. .........., ......,....... ..... 20
SECTION 12 PERMITTED DELAYS... ,', ,...... ..,...........................,....... .... ..........".......,............20
SECTION 13Error! Bookmark not defined. NOTICE............,.........,......................................... 20
SECTION 14 TIME OF THE ESSENCE ........... ................................................. ....................... 21
SECTION 15 RELATIONSHIP OF PARTIES ............................................ ..............................21
SECTION 16 COSTS AND ATTORNEYS' FEES ...................................................................22
SECTION 17 MISCELLANEOUS ..... ....... ,.......'..... ,... ........................... ............... .....................22
EXHIBIT A Site Plan....................................... .............. ........................"........,."...... .............. 25
EXHIBIT B List of Site Improvement Plans & Specifications.............................................26
EXHIBIT C Pad Certification Form....., ........, ...........' ........... .........,......... .......... ......., ............28
EXHmIT D Required Language in Letter of Credit ,....................................... ....................30
EXHIBIT E Form of Draw Affidavit.. ............., '.... '...." ............ ....., .......... .................,.., ..... ....31
EXHIBIT H Agreement with Hampden Township ...............................................................42
\\ny-srvOl\990504v09\1 1/3/04\45190.021 100
Mechanicsburg, PA
Site Development Agreement
SITE DEVELOPMENT AGREEMENT
THIS SITE DEVELOPMENT AGREEMENT (this "Agreement"), is' made and
entered into as of the _ day of November, 2004, by and between LOWE'S HOME
CENTERS, INC. ("Lowe's"), a North Carolina corporation with an office at Highway 286 East,
North Wilkesboro, North Carolina 28659, and RB MECHANICSBURG ASSOCIATES LP
("Developer"), a Pennsylvania limited partnership having an office c/o RD Management Corp"
810 Seventh Avenue, New York, New York 10019.
REC!T AL~:
A. Developer is the owner and developer of a shopping center located at the
intersection of Carlisle Pike (Pennsylvania State Highway 11) and Van Patten Drive, in Hampden
Township, Cumberland County, Pennsylvania, known as Tax Parcel Number 10-20-1842-082
and a portion of Tax Parcel Number 10-20-1840-023 on the tax map of CUIl\berland County,
Pennsylvania (the "Shopping Center"), which shopping center shall be constructed substantially
as shown on the site plan attached hereto as Exhibit A (the "Site Plan").
B. Developer and Lowe's entered into a Ground Lease, dated as of even date
herewith (the "Lease"), pursuant to which Developer leases to Lowe's an approximate fifteen
(15) acre parcel ofland within the Shopping Center (the "Lowe's Tract"). In addition, the parties
will also enter into a declaration of Easements, Covenants, Conditions and Restrictions (the
"BCCR"), or else Developer will record a declaration of condominium (the "DOC"), which will
provide, among other things, for the use and operation of the Lowe's Tract and certain other
tracts of land as identified therein. References to the "Outparcel Unit" or "Outparcel", and the
"Common Elements" or "Common Areas" shall have the same meaning as defined in the DOC
or BCeR, as the case may be. Terms which are not otherwise defined herein shall have the
meaning as defined in the Lease.
C. In connection with Lowe's lease of the Lowe's Tract, Developer has agreed to
perform certain work on the Lowe's Tract and within the Shopping Center for the benefit of the
Lowe's Tract.
D. The parties desire to enter into this Agreement to set forth their understandings
and agreement regarding the performance of such work.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
SITE IMPROVEMENT PLANS
1,1 Set forth in Section 2 hereof is a general description of the work to be performed
by Developer for the benefit of Lowe's on the Lowe's Tract and within and outside the Shopping
\'-J1y-srvOl\990504v09\11!3/04145190,021100
Mechanicsburg, PA
Site Development Agreement
Center in connection with the construction on the Lowe's Tract of a Lowe's Horne Improvement
Center (a "Lowe's Building"), with parking and all typical ancillary and related uses (the "Site
Improvement Work"). Portions of the Site hnprovement Work relating to the Off-Site
Improvements, as defined in Section 2.2, are referred to herein as the "Off-Site Improvement
Work", Those portions of the Site Improvement Work relating to the On-Site Improvements, as
defined in Section 2.1, are referred to herein as the "On-Site Improvement Work". J. Michael
Brill & Associates, having an address at 5053 Ritter Road, Suite 200, Mechanicsburg,
Pennsylvania 17055 (the "Proiect Engineer") has prepared plans and specifications (the "Site
Improvement Plans") for the Site Improvement Work, copies of which have been furnished to
Lowe's and a list of which is annexed hereto as Exhibit B. The Site Improvement Plans are
incorporated herein by this reference; provided, however, that in the event of any conflict
between the provisions of this Agreement and provisions of. the Site Improvement Plans, the
provisions of this Agreement shall govern.
1.2 As used herein, "Legal Requirements" shall mean all federal, state, county,
municipal, and other governmental statutes, ordinances, laws, rules, regulations and
requirements, including all health and safety laws, environrnentallaws, statewide fire underwriter
standards and all laws relating to architectural barriers affecting the disabled, including all rules,
regulations, ordinances, statutes and guidelines promulgated by any applicable governmental or
quasi-governmental authorities, agencies, organizations, municipal departments, conunissions,
boards or offices having jurisdiction (individually a "Governmental Authority", and collectively
the "Governmental Authorities").
1.3 Developer has obtained, pursuant to the provisions of the Lease. all necessary
Approvals (as defined in the Lease) required for performing the Site Improvement Work and has
paid, or will pay, any and all fees associated with the Site Improvement Work, including, without
limitation, any special assessments, but excluding any utility connection or tap fees and any other
costs and expenses directly related to the improvements which may be constructed by Lowe's. J
Developer's responsibility sha11 expressly include the obtaining of all permits, filing of all
notices, conducting periodic site inspections, timely preparing and maintaining comprehensive
written inspection reports and logs and supplying and posting at the job site, or as othelWise
required, all plans and other documentation in strict adherence to all requirements of all
Governmental Authorities (hereinafter defined) pertaining to storm water discharges or potential
pollution associated with construction activities and in strict accordance with Section 800 of
Lowe's Site Development Criteria which identifies Lowe's National Storm Water Pollution
Prevention Program (the "SWPPP Requirements''). If not already obtained pursuant to the
provisions of the Lease, immediately upon the issuance of any Approvals or upon Developer's
preparation, submission or of any documentation concerning the Approvals, Developer shall
deliver a copy of all such Approvals and documents to Lowe's.
1.4 Developer and Lowe's have reviewed and approved the Site Improvement Plans.
No changes shall be made to the Site Improvement Plans without the prior written approval of
the parties, except as may be necessary to satisfy any greater requirements of any Governmental
Authority having jurisdiction.
\\ny-srvO\\990504v09\\ 1/3/04\45190,021100
2
Mechanicsburg, PA
Site Development Agreement
SECTION 2
ON-SITE AND OFF-SITE IMPROVEMENT WORK
2.1 The Developer shall cause all of the elements of the Site Improvement Work as
set forth the Site Improvement Plans, including construction of any pylon signs shown on the Site
Plan, to be completed on the Lowe's Tract and in the Shopping Center (collectively, the "On-Site
Improvements") in strict accordance with the Site Improvement Plans, Legal Requirements, the
SWPPP Requirements and the provisions of this Agreement.
2,2 The Developer shall cause all improvements outside of the Shopping Center
which are necessary or which may be required by any Governmental Authorities for development
of the Shopping Center, including, roads, traffic signals, median cuts, deceleration lanes, utility
service for water, sewer, electric, telephone, gas and other necessary utilities, all as shown on the
Site Improvement Plans (collectively, the "Off-Site Improvements"), to be completed in strict
accordance with the Site Improvement Plans, Legal Requirements and the provisions of this
Agreement. Collectively, the On-Site Improvements and the Off-Site Improvements are
hereinafter referred to as the "Site Work Improvements".
2.3 Developer shall be responsible for obtaining all inspections (other than
inspections by Lowe's), approvals, and pennits for all aspects of the Site Improvement Work and
for complying with all Legal Requirements and the SWPPP Requirements, which are required for
Lowe's to obtain a building pennit for the Lowe's Building and other improvements to be made
on the Lowe's Tract, to install fixtures in and merchandise its store, to open its store to the
public, and to obtain a permanent, unconditional certificate of occupancy.
SECTION 3
SCHEDULE FOR SITE IMPROVEMENT WORK
3.1 The Developer, at Developer's sole cost and expense, shall cause the following
elements of the On..Site Improvement Work (the "Pad Delivery Work'') to be completed in strict
accordance with the Site hnprovement Plans, Legal Requirements, the SWPPP Requirements and
this Agreement, including the requirements set forth in Section 7 hereof, and with strict
adherence to the following dates (subject to (i) Pennitted Delays as defined in Section 12, (ii)
delays caused by Lowe's or parties other than Developer acting on Lowe's behalf, and (iii) delays
caused by changes to the Pad Delivery Work requested by Lowe's or any Governmental
Authority), If Lowe's requests any changes in the scope ofthe Pad Delivery Work (a "Change")
which, in the good faith opinion of Developer, the Project Engineer and the Contractor
(hereinafter defined), as certified by them in writing, will delay delivery completion of the Pad
Delivery Work beyond the dates set forth below (a "Delay") (by way of example, due to a
material change in the Site Improvement Plans, the need for a "long lead item", changes to
already completed portions of the Pad Delivery Work requiring a subcontract.or no longer present
on the job site), Developer shall, within two (2) days after Lowe's request for such Change, give
Lowe's written notice specifying in reasonable detail the reasons for the anticipated Delay and
\\ny-srvOl\990S04v09\11/3/04\45190,021 100
3
Mechanicsburg. PA
Site Development Agreement
the estimated length of time of such anticipated Delay. Within two (2) business days after receipt
of Developer's notice, Lowe's shall give Developer notice as to whether Lowe's nonetheless
requires the requested Change which is the cause of the anticipated Delay or, in the alternative,
Lowe's desires to withdraw the requested Change. If Lowe's does not elect to withdraw the
Change which Developer has indicated would cause the Delay, and such Change actually is the
cause of a Delay, then the completion date for each element of the Pad Delivery Work shall be
extended one day for each day of the actual Delay,
3.1.1 Developer shall (i) complete clearing and grading relating to the building
pad area labeled on the Site Improvement Plans as the "Building Pad Area", (ii) provide a 30,000
square foot area for staging construction activities, which area is labeled on the Site Improvement
Plans as the "Staging Area", and (iii) provide an all-weather twenty-four foot (24') wide stoned
access road comprised of at least six inches (6") of compacted stone from the construction
entrance to the Staging Area, and from the Staging Area to and around the Building Pad Area, on
or before December 1, 2004. Developer shall maintain the all weather access road until the Pad
Delivery Date.
3.1.2 Developer shall institute all necessary erosion and sediment control
measures with respect to the Lowe's Tract, as required by Governmental Authorities, Legal
Requirements, SWPPP Requirements and otherwise sufficient to prevent erosion or sedimentary
run-off, on or before December 1, 2004.
3.1.3 Developer shall provide a temporary chlorinated and pressure tested water
source (using I W' diameter lines), and a fIre water source (in accordance with all Legal
Requirements, including if necessary, a fire. hydrant) available for Lowe's use at the location
shown on the Site Improvement Plans, on or before December 1, 2004.
3.1.4 Developer shall provide to the Staging Area, telephone service and
electricity at 100 amp 30, available for Lowe's use at the location shown on the Site
Improvement Plans, on or before December 1, 2004.
The date upon which the Pad Delivery Work shall have been completed by Developer,
and inspected by and accepted by Lowe's is referred to in this Agreement as the "Pad Delivery
qate", provided, however, that if the Pad Delivery Work is not completed by December 2,2004,
then for all purposes under this Agreement, the "Pad Delivery Date" shall be March 1,2005.
3.2 Developer, at Developer's sole cost and expense, shall cause the following
elements of the Site Improvement Work (the "Post-Pad Delivery Work") to be completed in
strict accordance with the Site Improvement Plans, Legal Requirements, the SWPPP
Requirements and this Agreement with strict adherence to the following dates:
3.2.1 Develop_er shall complete any required clearing and grading of the balance
of the Lowe's Tract and the Shopping Center, on or before ninety (90) days following the Pad
Delivery Date.
\\ny-srvOl\990504v09\1113/04\45190,021 100
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MOechanicsburg, PA
Site Development Agreement
3.2.2 Developer shall provide permanent water lines and appurtenances
(domestic and fire) and all lateral lines extending therefrom, which lines shall be chlorinated and
pressure tested, to the points on the Lowe's Tract selected by Lowe's, which shall be within five
feet (5') of the Building Pad Area, except with respect to the fire water line which shall be to a
point one foot (I') above finished floor level in the location of the sprinkler room of the Lowe's
Building, all of which points are shown on the Site Improvement Plans, with the location of
mains in compliance with applicable Legal Requirements and those of the water company and
fire department, all on or before ninety (90) days following the Pad Delivery Date.
3.2.3 Developer shall provide the main trunk sanitary sewer line, including
appurtenances thereto, and all lateral lines extending therefrom to the points on the Lowe's Tract
shown on the Site Improvement Plans, on or before ninety (90) days following the Pad Delivery
Date.
3.2.4 Developer shall coordinate with the utility companies for the provision of
permanent electric, gas and telephone service utility lines at capacities set forth in the Site
Improvement Plans to the points on the Lowe's Tract selected by Lowe's, which shall be within
five feet (5') of the Building Pad Area (except that the primary electric line shall be brought to the
transformer), and which locations are shown on the Site hnprovement Plans, including the
installation of main feeder lines, conduits, piping, wiring, valves, manholes and other
appurtenant devices, on or before ninety (90) days following the Pad Delivery Date. Lowe's
shall be responsible for the installation, and the costs thereof, of the transformer. The foregoing
notwithstanding, Developer shall be deemed to have satisfied this obligation if, in lieu of
providing the utilities specified in this Section 3.2.4 on or before ninety (90) days following the
Pad Delivery Date, Developer provides temporary heat to Lowe's by such date; provided, further,
that the utilities specified in this Section 3.2.4 are provided as herein above set forth no later than
one hundred twenty (120) days following the Pad Delivery Date.
3.2.5 Developer shall provide a complete storm sewer system, on-site and/or
off-site (excluding elements to be constructed by Lowe's or as part of its building work and
which are not set forth on the Site Improvement Plans), for drainage of the parking lot and the
roofs of all buildings in the Lowe's Tract or in the Common Elements, including all underground
pipes, and catch basins, as well as detention or retention pond; if required, and in confonnity to
the SWPPP Requirements, and shall extend such system to the points on the Lowe's Tract
selected by Lowe's, which shall be within five feet (5') of the Building Pad Area, and which
locations are shown on the Site Improvement Plans, on or before one hundred thirty-five (135)
days following the Pad Delivery Date; provided, however, that Developer shall provide the stonn
sewer system located at the south end of the Shopping Center to enable Lowe's to connect its
roof leaders to such system within seventy-five (75) days following the Pad Delivery Date.
3.2,6 Developer shall complete all Off-Site hnprovements, on or before one
hundred eighty-eight (188) days following the Pad Delivery Date. Notwithstanding the
foregoing, if the Off-Site Improvements are required to be completed to enable Lowe's to fixture
\\ny-srvOl \990504v09\ll/3/04\45190.021100
5
Mechanicsburg, P A
Site Development Agreement
and merchandise its store, such work shall be completed on or before one hundred forty-nine
(149) days following the Pad Delivery Date.
3.2.7 Developer shall provide all parking lot identification signs, traffic control
signs and entrance and exit signs at the locations shown on the Site Improvement Plans, on or
before one hundred eighty (180) days following the Pad Delivery Date. Notwithstanding the
foregoing, if the parking lot identification signs, traffic control signs and entrance and exit signs
are required to be completed to enable Lowe's to fixture and merchandise its store, such work
shall be completed on or before one hundred forty-nine (149) days following the Pad Delivery
Date,
3.2.8 Developer shall provide and pave the parking lot and interior roads
(including entrance and exit driveways, curbs and gutters, underground wiring for parking lot
lighting system/signs, piping for landscape irrigation, sidewalks, and striping) depicted on the
Site Improvement Plans and including any sidewalks adjacent to any buildings at the Shopping
Center, on or before one hundred eighty-eight (188) days following the Pad Delivery Date.
Notwithstanding the foregoing, Developer shall provide paving sufficient for the parking of one
hundred fifty (150) vehicles as well as all paving to allow for truck circulation around the Lowe's
Building, as well as deliveries to Lowe's loading dock on or before one hundred forty nine (149)
days following the Pad Delivery Date.
3.2.9 Developer shall install and bring functional all lighting standards and
apparatus for illumination depicted on the Site Improvement Plans, including but not limited to
concrete bases, light standards, conduits, fittings, fixtures, on or before one hundred fifty (150)
days following the Pad Delivery Date,
3.2.10 Developer shall provide all landscaping and functional irrigation systems
depicted on the Site Improvement Plans, on or before one hundred eighty (180) days following
the Pad Delivery Date.
3.3 The Developer shall arrange and obtain the [mal inspections, approvals, and/or
pennits, if any, and specifically excluding the building permits for any construction to be
performed by Lowe~s, of any and all aspects of the Site Improvement Work described in this
Section 3 from all appropriate Governmental Authorities required for Lowe's to obtain a permit
for Lowe's to construct a Lowe's Building on the Lowe's Tract on or before the Pad Delivery
Date. The Developer shall arrange and obtain the final inspections, approvals, and/or permits of
any and all aspects of the Site Improvement Work described in this Section 3 from all
appropriate Governmental Authorities required as a condition to Lowe's ability to install fixtures
in and merchandise its store on or before one hundred fifty (150) days following the Pad Delivery
Date. The Developer shall obtain the final inspections, approvals, and/or permits of any and all
aspects of the Site Improvement Work described in this Section 3 from all appropriate
Governmental Authorities required as a condition to Lowe's ability to open its store to the public
on or before one hundred ninety (190) days following the Pad Delivery Date. If and to the extent
any of the previously obtained approvals and/or pennits were temporary, arranging and obtaining
the fmal inspections, approvals and/or permits of any and all aspects of the Site Improvement
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Work described in this Section 3 from all appropriate Governmental Authorities necessary for
Lowe's to obtain a permanent, unconditional certificate of occupancy on or before one hundred
ninety (190) days following the Pad Delivery Date,
3.4 IN THE EVENT THE DEVELOPER FAILS TO COMPLETE ALL OF THE
SITE WORK ll\1PROVEMENTS IDENTIFIED IN THIS SECTION 3 (OR HAS COMPLETED
SUCH WORK, BUT THE WORK IS NOT APPROVED BY LOWE'S FOLLOWlNG
INSPECTION), OR LOWE'S HAS NOT BEEN AFFORDED A REASONABLE
OPPORTUNITY TO INSPECT AND APPROVE ALL SUCH SITE IMPROVEMENT WORK,
OTHER THAN DUE TO PERMITTED DELAYS AND DELAYS CAUSED BY LOWE'S
PRIOR TO THE DATES SET FORTH IN THIS SECTION 3, DEVELOPER SHALL BE
SUBJECT TO LIQUIDATED DAMAGES IN THE AMOUNT OF FIVE THOUSAND
DOLLARS ($5,000.00) PER DAY FOR EACH DAY THE DEVELOPER FAILS TO
COMPLETE ANY OF THE IMPROVEMENTS IDENTIFIED THEREIN OR FAILS TO
AFFORD LOWE'S A REASONABLE OPPORTUNITY TO lNSPECT, OR BOTH, WHICH
SUMS ARE DUE AND PAYABLE WITHIN TEN (10) DAYS FOLLOWING DEMAND (THE
"LIQUIDATED DAMAGES''). THE PARTIES HERETO ACKNOWLEDGE THE
DIFFICULTY OF ASCERTAINING LOWE'S ACTUAL DELAY DAMAGES AND
THEREFORE AGREE THAT THE ABOVE AMOUNTS ARE A GOOD FAITH ATTEMPT
TO IDENTIFY AND QUANTIFY LOWE'S ACTUAL DAMAGES AND AS SUCH DO NOT
CONSTITUTE A PENALTY AND THAT THE REMEDY SET FORTH HEREIN IS IN
ADDITION TO ANY AND ALL OTHER REMEDIES AVAILABLE TO LOWE'S UNDER
THIS AGREEMENT. IF NOT TIMELY PAID, LOWE'S SHALL HAVE THE RIGHT TO
OFFSET SUCH LIQUIDATED DAMAGES AGAINST THE CONCRETE WORK
CONTRlBUTION (HEREINAFTER DEFINED) WHICH MAY BECOME DUE TO
DEVELOPER HEREUNDER OR DRAW SUCH FUNDS FROM THE SIDE ASIDE FUNDS
ESTABLISHED UNDER SECTION 8, OR OFFSET SUCH AMOUNTS AGAINST THE
FIXED RENT PAYABLE UNDER THE LEASE, SUBJECT, HOWEVER TO THE TWENTY
FIVE PERCENT (25%) PER MONTH CAP SET FORTH IN THE LEASE.
SECTION 4
CONSTRUCTION/INSTALLATION OF SITE IMPROVEMENT WORK
4.1 Developer has heretofore entered into a construction contract with one or more
contractors (individually and collectively, the "Contractor") for the performance of the Site
Improvement Work, which construction contract(s) provide, among other things, for the
following:
4.1.2 completion of the Site Improvement Work in accordance with the time
schedules set forth in Section 3 above;
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4.1.3 retention of at least ten percent (10%) of each periodic payment until the
work is accepted, until fifty percent (50%) of the Site Improvement Work is completed,
following which the retention shall be five percent (5%);
4.1.4 maintenance of insurance with a company, and in the amounts and for
coverage no less than that specified in Section 10.2;
4,1,5 recognition of Lowe's right to assume control of the Site Improvement
Work in the place of Developer pursuant to the terms and conditions set forth herein and in the
Lease;
4.1.6 use of lien waivers in the form attached hereto as Exhibit G (partial and
full); and
4.2 Prior to the date hereof, Developer commenced the Site hnprovement Work.
Prior to the execution and delivery of this Agreement, Developer shall submit to Lowe's a bar
chart indicating the anticipated start and completion date of each phase of the Site Improvement
Work (including the work already completed) complying with the provisions of this Agreement.
4.3 During the construction of the Site hnprovement Work, Lowe's shall have the
right from time to time to inspect all aspects of the Site Improvement Work, and Developer
agrees to promptly cause to be corrected any deficiencies in the work or materials, or any
elements of the Site Improvement Work which do not comply with the requirements of the Site
Improvement Plans, Legal requirements, the SWPPP Requirements or this Agreement which are
brought to the Developer's attention. Upon reasonable prior request by Lowe's, Developer shall
make its representatives and the Project Engineer available to Lowe's as may be necessary or
desirable to enable Lowe's to monitor the construction or scheduling of the Site Improvement
Work.
4.4 As soon as reasonably practicable after substantial completion of each element of
the Site Improvement Work separately identified in Section 3, Developer shall give notice to the
Project Engineer and Lowe's and the appropriate inspector or representative of any
Goverrunental Authority whose approval is required for acceptance thereof, that such element of
the Site hnprovement Work is ready for final inspection. Within fifteen (15) days of receipt of
such notice, the parties, the Project Engineer and any required Governmental Authority (unless a
longer time is required for such Governmental Authority to inspect) shall complete their
inspection thereof. If no written objections are made (Lowe's being required to give such a
notice within five (5) business days thereafter or else be deemed to have no objections) and every
required governmental approval or acceptance is received, Developer shall cause the Project
Engineer to issue to Lowe's and Developer a final certificate of completion as to such element
(and as to the entire project, when all elements thereof are so completed), and upon such
issuance, such element ofthe Site hnprovement Work shall be deemed delivered. In addition to
providing notices, Developer shall be responsible for arranging for all governmental inspections
required for the Site Work Improvements. If, during the construction of the Site Work
hnprovements, any inspector representing a Governmental Authority having jurisdiction over the
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Site Work hnprovements brings to Developer's attention any deficiencies in the work or
materials or any elements of the Site Work hnprovements which do not comply with applicable
Approvals or Legal Requirements, Developer shall immediately notify Lowe's of the same and
thereafter, with Lowe's consent and concurrence, which shall not be unreasonably withheld or
delayed, cause such deficiencies to be corrected,
The foregoing notwithstanding, any inspection by Lowe's and any failure to reject or
object to any of the Site Improvement Work shall not constitute, nor be deemed to be evidence
of, any approval by Lowe's of the Site Improvement Work, nor waive or release Developer from
its obligation to construct and complete the Site Improvement Work in accordance with this
Agreement. Developer agrees, upon written request from Lowe's received during the Warranty
Period (hereinafter defined), to pursue any and all material claims against the Contractor or the
Project Engineer based on professional negligence or otherwise, for the benefit of Lowe's, where
such claims concern the preparation ofthe Site hnprovement Plans or the construction of the Site
Work Improvements, or both.
4.5 Developer shall be responsible for coordinating the work of the Contractor and
each subcontractor undertaking the Site Improvement Work with all other contractors employed
by the parties for construction of their respective buildings and other improvements. In the event
of a dispute, Developer shall notify Lowe's in writing of such dispute promptly after becoming
aware of the dispute, Developer and Lowe's agree to cooperate with each other in order that the
Site Improvement Work being performed within the Shopping Center shall be completed in a
timely fashion and at no increase in cost to the other. Developer shall have, or shall cauSe the
Contractor(s) to have, an on-site representative which can be the same representative for its site
through the entire construction period, with the name of such on-site person (or any successor
thereof) shall be provided to Lowe's by Developer.
4.6 Except for damage arising from the acts or omissions of Lowe's, Developer shall
maintain the Site Improvement Work on the Lowe's Tract in a. good and safe condition until the
Project Engineer issues its final certificate of completion as provided in Section 4.4 hereof and in
accordance with the Site Improvement Plans.
4.7 If any mechanic's lien is filed against the Shopping Center or any portion thereof
for work done or materials furnished to Developer, or anyone claiming through Developer,
Developer shall cause such lien to be discharged at its sole expense by payment, release, bond,
deposit, order of a court of competent jurisdiction or otherwise, within thirty (30) days after
receiving notice from any source ofthe filing thereof.
SECTION 5
PAYMENT OF PROJECT COSTS
5.1 "Project Costs" shall mean the aggregate cost of: (i) performing the Site
Improvement Work, including any changes permitted under Section 1 which were not reflected
in the Site Improvement Plans, (ii) any permit fees applicable to the Site Improvement Work, (iii)
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insurance premiums relating site work, (iv) preparing the Site Improvement Plans, (v) periodic
on-site inspections required to be made by the Project Engineer or other special consultants in
order to certify completion of the Site Improvement Work, and (vi) work performed pursuant to
the provisions of Section 5.2 below.
5.2 Lowe's shall not be required to reimburse to Landlord any portion of the Project
Costs, all of which shall be the sole responsibility of Developer, regardless of whether such
Project Costs are increased due to unforeseen circumstances or conditions, corrective work or
overtime, the risks associated therewith being hereby assumed solely by Developer. The
foregoing notwithstanding, Lowe's agrees to contribute up to One Hundred Thousand Dollars
($100,000.00) towards the costs allocable to constructing the concrete areas adjacent to and
immediately behind the Lowe's building, as depicted on the Site Improvement Plans (the
"Concrete Work Contribution"). In addition, any cost associated with change orders benefiting
the Lowe's Tract requested and approved by Lowe's (the "Lowe's Change Orders'') shall be paid
by Lowe's. At Lowe's option, all Lowe's Change Orders may be negotiated and paid for by
Lowe's directly to the Contractor performing the Lowe's Change Order work. To the extent any
Lowe's Change Orders result in a decrease of the Project Costs payable by Developer, then such
decrease shall be credited against any subsequent Lowe's Change Orders. Notwithstanding the
foregoing, all changes to the Site Improvement Work required to be performed by Developer at
Developer's cost under this Agreement which are required solely to conform the Site
Improvement Plans to any higher standards required by any Governmental Authority, Legal,
Requirement, or site conditions shall be entirely Developer's responsibility and expense. Lowe's
Change Orders shall be billed to Lowe's at the actual cost incurred by Developer (whether or not
Developer is acting as general contractor) with no overhead or profit added on for Developer, and
Developer's agreement with its Contractors and any other contractors shall provide that no more
than ten percent (10%) of actual net cost may be added to or included in the cost of change orders
for profit, overhead, general supervision and administration. If any such contracts provide for
profit, overhead, general supervision and administration in excess of ten percent (10%) of actual
net cost, such excess costs shall be paid by Developer. Lowe's shall have the right for three (3)
years after completion of the Site Improvement Work to audit, inspect and copy Developer's
books and accounts with respect to the Lowe's Change Orders and any other work paid for by
Lowe's to verify the accuracy of any amounts paid by or charged to Lowe's hereunder. Lowe's
or its duly authorized representatives shall have the right to conduct such audit or inspection, at
its expense and upon at least five (5) days prior written notice, during normal business hours and
Developer shall provide office space and facilities for the conduct of the audit or inspection,
including facilities for copying documents and data, whether in electronic format or otherwise.
In the event an audit shall disclose any error in the determination or calculation of the costs paid
by Lowe's, the adjustment necessary to correct such error or errors shall promptly be made.
Reimbursement shall. promptly to be made to Lowe's, to the extent Lowe's has previously paid
amounts found by the audit to be erroneous. If the error (or total of the errors, if more than one)
is greater than three percent (3%) of the total of all change orders, Developer shall also reimburse
Lowe's for its reasonable audit costs,
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5.3 Any sum payable by Lowe's pursuant to Section 5.2 for the Concrete Work
Contribution or a Lowe's Change Order shall be paid at such time as all of the following
conditions to such payment have been fully satisfied, as a condition to such payment:
5.3.1 Developer shall have satisfactorily completed all of such work, and the
Project Engineer shall have certified the same;
5.3,2 Lowe's shall have inspected and reasonably approved all such work (or
been afforded a reasonable opportunity to inspect such work without having done SO);
5.3.3 All inspections, document filings, approvals, and/or completion
certificates including those from Governmental Authorities required for such Site Improvement
Work, including those related to SWPPP Requirements, shall have been performed, made and
obtained, and copies thereof shall have been provided to Lowe's;
5.3.4 Lowe's shall have received lien waivers and releases in compliance with
Section 4.1.8 from the Contractor and all subcontractors performing any part of such work;
5.3.S Lowe's shall have received an AIA Form G702 Application for Payment
(or such other form of an itemized application for payment for the Site Improvement Work
performed, which application shall be notarized and supported by such data substantiating
Developer's right to payment as Lowe's may reasonably require), and shall reflect retainage as
provided herein, and shall be certified by the Project Engineer; and
5.3.6 Lowe's shall have received with respect to each application for payment
other than the final application an updated construction schedule (it being understood that the
requirement for the Developer to submit an updated construction schedule does not modify the
obligations set forth in this Agreement or relieve the Developer of the obligation of meeting the
deadlines set forth in this Agreement).
5.4 Any provisions of this Section 5 to the contrary notwithstanding, if one or more
mechanics' or contractors' lien claim has been filed against any portion of the Lowe's Tract in
connection with the Site Improvement Work and is not paid or removed by Developer within
forty~fiYe (45) days after Developer became aware of such lien, then upon written notice to
Developer, Lowe's may withhold from amounts otherwise due Developer under this Agreement
(including any retainage) an amount equal to one hundred twenty-five percent (125%) of the
amount of each claim; provided, however, as each such claim is released of record and
reasonably satisfactory evidence of such is delivered to Lowe's, the amount previously withheld
by Lowe's with respect thereto shall be paid to Developer.
5.5 With respect to the final payment, Lowe's may withhold payment thereof and of
the retainage until such time as: (i) the Project Engineer certifies in writing final completion of
all Site hnprovement Work in compliance with the Site Construction Documents; and (ii) the
Developer provides Lowe's with (1) a list of all subcontractors and major material suppliers used
on the job; (2) copies of all SWPPP reports; (3) copies of all testing reports as required in this
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Agreement and the Site Construction Documents; (4) lien waivers and releases in compliance
with Section 4(A)(viii) from the Contractor and all subcontractors performing any part of the
Site Improvement Work; (5) a list of all subcontractors and major material suppliers employed in
connection with the Site Improvement Work; (6) a title commitment binder from a title company
reasonably satisfactory to Lowe's confirming that the Lowe's Parcel is free and clear of all
mechanic's liens or other encumbrances asserted or claimed in connection with the Site
Improvement Work; (7) evidence reasonably satisfactory to Lowe's that Developer has complied
with all GovenunentaI Approvals, Legal Requirements and the SWPPP Requirements; and (8) a
fmal set of reproducible drawings of the Site Improvement Work showing all changes, if any,
thereto as well as copies thereofin CD ROM format Whether or not Lowe's is required to make
any payment to Developer under Section 5.2, Developer shall provide to Lowe's all foregoing
items set forth in this Section 5.5 upon completion ofthe Site Improvement Work, failing which,
Developer shall be in default of its obligations under this Agreement and in under the Lease.
5.6 Lowe's shall pay any amounts due Developer under Section 5.2 within the thirty
(30) days of the date such amounts become payable under this Agreement. Developer may only
submit requests for payment once in any thirty (30) day period.
5.7 Any default by Developer hereunder (other than Developer's failure to perform or
complete the Site Improvement Work within the time periods set forth herein, but specifically
including any violation of Developer's warranty under Section 9 or a violation of Developer's
indemnity obligations under Section 10) shall also constitute a default under the Lease, provided
that Lowe's has afforded Developer notice of such default and Developer fails to cure such
default within ten (10) days of receipt of Lowe's notice (or such longer period, not to exceed
forty-five [45] days if the default is of a nature that it cannot reasonably be cured within such ten
(10) day period). It is the intent of the Parties that Lowe's sole remedies for Developer's failure
to timely perform and complete the Site Improvement Work within the time periods set forth
herein shall be the take-over rights set forth in Section 6 hereof, and as set forth in Section 19(c)
of the Lease (the provisions of which are incorporated herein by this reference with the same
force and effect as if fully set forth herein), an action to compel specific performance by
Developer, and, in either event, the payment to Lowe's of interest and Liquidated Damages as set
forth in this Agreement.
5.8 No progress payment, acceptance following an inspection or any partial or entire
use or occupancy of the Lowe's Tract by Lowe's shall constitute an acceptance of any Site
Improvement Work not performed in-accordance with the Site Improvement Plans.
SECTION 6
TAKE-OVER BY LOWE'S
6,1 If Lowe's determines, in its reasonable judgment and in good faith, that the
performance of any portion of the Site Improvement Work is not proceeding so as to be
completed by the time limits set forth in Section 3, time being of the essence, Lowe's may serve
on the Developer written notice of such detennination, Thereafter, if Developer does not give to
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Lowe's, within ten (10) days of receipt of Lowe's notice, reasonably satisfactory evidence that
either such Site Improvement Work will be completed as required by this Agreement or that an
extension of a completion date is appropriate under the terms of Section 12, Lowe's shall have
the right, but not the obligation, to assume control of all or a portion of the Site Improvement
Work on the Lowe's Tract and the common areas and the Off-Site Improvement Work, by giving
an additional five (5) business days written notice to Developer (such notice, a "Take Over
Notice"), Without limiting the foregoing, Lowe's shall have a right to give a Take Over Notice
to Developer without any requirement for a cure period if (i) Developer shall fail to complete any
portion of the Site Improvement Work by the time limits set forth in Section 3, time being of the
essence, (ii) if Lowe's exercises its take-over rights in accordance with Section 19(c) of the
Lease, or (iii) Developer gives notice to Lowe's that it will be ceasing performance of all or any
remaining element of the Site Improvement Work. Upon such assumption of control by Lowe's
hereWlder, Lowe's agrees to proceed with all reasonable dispatch to complete that portion of the
Site Improvement Work for which Lowe's has given the Take Over Notice. Anything in this
Agreement to the contrary notwithstanding, Lowe's shall have the right to modify the Site
Improvement Plans as Lowe's, in its reasonable business judgment, deems advisable in order to
complete that portion of the Site Improvement Work which is required to enable Lowe's open
and operate the Lowe's Building for business to the public, provided such modifications do not
have an adverse affect upon the Outparcel Unit, or increase Liquidated Damages.
6.2 Notwithstanding any exercise by Lowe's of its takeover rights hereWlder,
Developer shall remain liable for all of the Project Costs under this Agreement, plus any
increased costs attributable to or resulting solely from Lowe's exercise of its take-over rights
hereWlder, and Developer agrees to periodically pay such amoWlts in the same manner as set
forth in Section 5. If Developer fails to pay such amounts due Lowe's within the applicable time
period, the amounts owed will bear interest at a rate being the lower of one percent (1 %) per
month or such maximum rate as allowed by law from the date due until paid. In the event of a
default in making such payment to Lowe's, Lowe's shall have the right to offset such amounts
against the Fixed Rent payable under the Lease, subject, however to the twenty five percent
(25%) per month cap set forth in the Lease.
6.3 The financial obligation of Developer due to Lowe's shall also include the
Liquidated Damages, if any, applicable up to and through the date that Lowe's shall exercise its
take-over rights under this Section 6. The foregoing notwithstanding, however, if Developer
gives notice to Lowe's that it will be ceasing performance of all or any remaining element of the
Site Improvement Work, then Lowe's shall only be entitled to Liquidated Damages for the period
through the date which is the later of (i) thirty (30) days after such notice, or (ii) thirty (30) days
after the date Developer actually ceases perfonning the Site Improvement Work.
SECTION 7
PREPARATION OF LOWE'S BUILDING PAD AREA
7.1 With respect to the Building Pad Area on the Lowe's Tract as designated in the
Site Improvement Plans, Developer shall cause the following work to be completed as part of the
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Site Improvement Work in accordance with the Site Improvement Plans, Legal Requirements,
the SWPPP Requirements and this Agreement, and in any event by the date set forth in Section 3
of this Agreement, time being of the essence:
7.1,1 Developer shall cause the surface and subsurface of the Building Pad
Area, and, to the extent not covered by such designation, the areas upon which attached
sidewalks shall be constructed, the garden center, any loading dock and any designated outside
sales area, to be prepared and compacted. Developer shall cause to be issued to Lowe's a
certification by the construction materials testing engineer assigned by the Project Engineer and
reasonably acceptable to Lowe's confirming that the preparation of the Building Pad Area and
surrounding areas have been completed as required by this Agreement, and that the compaction
thereof strictly complies with the Site Improvement Plans. The Developer shall also cause to be
issued to Lowe's within fifteen (15) days of completion of the Pad Delivery Work, a certification
by the Project Engineer, confirming that the preparation of the Building Pad Area has been
completed pursuant to the Site Improvement Plans and this Agreement, and that the location of
the building comers and elevation of the Building Pad Area subgrade complies with the
tolerances specifically set forth in the Site Improvement Plans, such certification to be in the
fonn attached hereto as Exhibit C. Lowe's acceptance of the Building Pad Area is subject to
compliance with all of the foregoing requirements.
7.1.2 If the proposed Pad Delivery Date, being the date of delivery of the
Building Pad Area and Staging Area on the Lowe's Tract, occurs on or: between a December 1st
and the last day ofthe following February (the "Blackout Period"), Lowe's shall not be obligated
to accept delivery of the Building Pad Area or Staging Area and, at Lowe's election, the actual
Pad Delivery Date shall not occur until the next succeeding March 1 st. Until such Pad Delivery
Date occurs, Developer shall, at Developer's sole cost and expense, maintain the Building Pad
Area and Staging Area. Thereafter, Lowe's, at Lowe's sole cost and expense, shall maintain the
Building Pad Area and Staging Area and shall assume the obligation to pay utilities with respect
thereto.
SECTION 8
DEVELOPER'S FINANCIAL GUARANTY
To assure that sufficient funds shall be available from Developer to pay the costs and
expenses of the construction work to be completed by it hereunder, and to provide Lowe's with
security for Developer's performance of its obligations hereunder upon execution of this
Agreement, Developer shall comply with the following requirements:
8.1 Developer shall, prior to the date which is the later of (a) five (5) business days
after the date hereof, or (b) November 15, 2004, establish an escrow account with an FDIC
insured bank reasonably acceptable to Lowe's and shall deposit immediately therein cash in an
amount equal to Eight Hundred Seventy Seven Thousand Dollars ($877,000,00) (the "Escrow
Funds"). The Escrow Funds shall be invested according to reasonable prudent instructions from
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Developer and Lowe's recognizing preservation of capital as the primary investment obligation.
The escrow shall provide that:
8.1.1 all interest earned shall be accumulated in the account and deemed a part
of the Escrow Funds, and made available for satisfying Developer's obligations under this
Agreement;
8.1.2 the Escrow Funds shall be used by Developer to pay the Project Costs for
the Site hnprovement Work (including any cost overruns to the extent additional funds for the
same have been deposited by Developer as provided in Section 8.2) to be completed under this
Agreement and may be withdrawn periodically for such purpose upon submission of escrow
account draws reasonably approved by Lowe's;
8.1.3 the Escrow Funds may be drawn upon by Lowe's only to satisfy any
Developer's obligation hereunder in the event Developer shall default in its obligations and if
Lowe's has taken over the Site hnproveinent Work in accordance with Section 6 above,
including the notice and cure periods set forth in such Section 6; and
8.1.4 upon satisfaction of all Developer's obligations under this Agreement, the
balance of the account, if any, shall be paid to Developer.
8.2 In the event cost overruns are encmmtered under the Contract for the Site
hnprovement Work which are not the result of the act or omission of Lowe's in connection with
any related construction activities, and Lowe's has not exercised its takeover rights pursuant to
Section 6 hereof, then Developer shall promptly, upon being notified that such overruns shall be
incurred, notify Lowe's of the same and deposit additional funds necessary to pay the Contractor
for the entire such overruns. In the event such additional funds are not deposited paid when
overruns have been ascertained, Developer's obligation to pay such amount shall continue, and
shall thereafter include interest at the rate of interest from time to time quoted by Citibank, N.A.,
or its successor, as of the date of default, as its so called "prime rate", plus two percent (2%)
8.3 Although, the escrow acc~)Unt provided in this Section 8 shall be reduced as draws
are reasonably approved by Lowe's pursuant to Section 5 hereof and are paid to the Contractor,
the amount of the escrow account shall never be reduced to less than one hundred ten percent
(110%) of the cost to complete the Site hnprovement Work, as determined by the Project
Engineer. At the time a certificate of substantial completion (as defined in the Site Improvement
Pians) is issued by the Project Engineer, then the amount of the escrow account will be reduced
to an amount equal to one hundred ten percent (110%) of the cost of outstanding punch-list items
as reasonably determined by the Project Engineer. Notwithstanding anything herein -to the
contrary, Lowe's shall not be obligated to approve reductions in nor draw from the escrow
account if Developer is in default hereunder.
8.4 In lieu of establishing the escrow for the Escrow Funds, provided that the
Construction Lender (hereinafter defined) which is providing funds to Developer for the
performance of the Site hnprovement Work agrees in writing with Lowe's to recognize Lowe's
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right to receive reimbursement for amounts expended, plus interest, and expressly recognizes
Lowe's take-over rights, as set forth in Section 6, the Escrow Funds, in lieu of a cash deposit,
may be evidenced and secured by an irrevocable letter of credit issued by the Developer's
Construction Lender or another lender, containing the language set forth on Exhibit D, which
letter of credit shall (i) name Lowe's as the beneficiary, (ii) not expire prior to June 30, 2006, (iii)
provide that drafts drawn under the letter of credit marked "Drawn under [Name of Bank], Letter
of Credit No. , dated 200_" and which indicate that the draw is
pursuant solely to a sight draft and an affidavit (the "Draw Affidavit") from Lowe's, in the form
to be attached to the letter of credit, and which form of Draw Affidavit is attached to this
Agreement as Exbibit E and by this reference made a part hereof, and (iv) otherwise be in form
and substance reasonably satisfactory to Lowe's. An original of the Draw Affidavit shall be
attached to each sight draft. The issuer of the Letter of Credit shall not be required to look
beyond the sight draft and Draw Affidavit, but shall honor such draft upon receipt. Developer
further agrees to indemnify and hold hannless the Construction Lender from any loss, liability,
cost or expense incurred with respect to its funding under the letter of credit upon receipt of a
draft and Draw Affidavit. If the letter of credit shall have an expiration date that is earlier than
the date which shall be six (6) months after the anticipated completion date for all of the Site
hnprovement Work as provided in this Agreement and the Construction Schedule, Developer
shall cause a substitute letter of credit having an expiration date that is at least six (6) months
after such anticipated completion date to be delivered to Lowe's, which substitute letter of credit
shall otherwise comply in all respects with the provisions of this Agreement. Upon Lowe's
receipt of the substitute letter of credit complying with the foregoing requirements, the expiring
letter of credit shall be returned to Developer. If Developer fails to replace the expiring letter of
credit by the date which is thirty (30) days prior to the stated expiration date, Lowe's shall have
the absolute right to draw on the letter of credit, and the letter of credit shall so specifically
provide,
8.5 In lieu of the escrow of the Escrow. Funds or the letter of credit contemplated
above, to assure that sufficient funds shall be available from Developer to satisfy its obligations
hereunder, Developer may, concurrently with its execution of this Agreement, deliver or caused
to be delivered to Lowe's a set-aside agreement with Developer's Construction Lender, which
set-aside agreement shall (i) be addressed to Lowe's, (ii) provide that funds will be made
available to Lowe's pursuant to the Draw Affidavit (as hereinafter defined), and that the
Construction Lender shall not be required to look beyond such Draw Affidavit, but shall honor
the request upon receipt, and (iii) be substantially in the form of Exhibit F annexed hereto (the
"Set Aside Agreement"). If Lowe's assumes control of the construction activities pursuant to
Section 6 hereof, Lowe's may periodically obtain a draw of Developer's loan proceeds in
accordance with the Set Aside Agreement in order to satisfy Developer's obligations hereunder,
solely by submission to the Construction Lender of a Draw Affidavit. Developer hereby releases
the Construction Lender from any liability in cOIll1ection with its compliance with the
instructions contained in this Section 8.5 with regard to the payments and funding pursuant to the
Set Aside Agreement without any further consents, approvals, acts or actions by or from
Developer. Developer further agrees to indemnify and hold harmless the Construction Lender
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from any loss, liability, cost or expense incurred with respect to its funding to Lowe's pursuant to
the Set Aside Agreement upon receipt of the Draw Affidavit.
8.6 In addition to Developer's obligation to provide the Escrow Funds (or letter of
credit) Developer shall cause an amount equal to one million one hundred twenty three thousand
dollars ($1,123,000.00) to be deposited in escrow, by either a bond or letter of credit, pursuant to
the terms of Developer's agreement with Hampden Township, Cumberland County,
Pennsylvania, the form of which is attached hereto as Exhibit H (the "Municipal Development
Agreement") and which shall provide that Lowe's is a third party beneficiary of such agreement
and shall specifically recognize Lowe's take over rights and rights to have the funds so deposited
paid to Lowe's upon completion of any portion of the Site Improvement Work for which such
funds have been deposited. Developer shall neither modify or amend the Municipal
Development Agreement, or permit the Municipal Development Agreement to be modified or
amended without the written consent of Lowe's,
8.7 As used in this Agreement, "Construction Lender" shall mean a bank, commercial
mortgage corporation, trust company, savings and loan association, insurance company, pension
or retirement fund, real estate investment trust or other, similar organization whose loans on real
estate are regulated by federal or state law and which is authorized to transact business in the
Commonwealth of Pennsylvania which is a member in good standing of the FDIC. Lowe's
acknowledges that GMAC Commercial Mortgage Bank, qualifies as a Construction Lender as
defined herein.
SECTION 9
DEVELOPER'S WARRANTY
9.1 Developer hereby warrants and represents to Lowe's that all Site hnprovement
Work shall be free from defects in materials used by Developer therein or due to the failure of
Developer to comply with the terms hereof (and specifically excluding any defects caused by
Lowe's), from and after completion thereof until the earlier of (i) one (1) year after the date of
opening of Lowe's Building to the public, or (ii) the date which is two (2) years after the date
such portion of the Site Improvement Work was completed by Developer and Lowe's was given
the opportunity to inspect such work and, either did not inspect such work, or having inspected it,
accepted the work (in either case, the "Warrantv Period").
9.2 Provided that Lowe's gives Developer notice of any such defects prior to the
expiration of the Warranty Period, Developer shall cause such defects to be repaired, including
the replacement of any Site Improvement Work, and including repair and replacement of other
property or improvements which is required as a result of defects inthe Site Improvement Work,
all without cost to Lowe's. After such notice of any defects is given, any such repair or
replacement shall be commenced within thirty (30) days after demand and shall be pursued
diligently to completion, Developer shall be responsible for making such repair or replacement,
without regard (except to the extent the need for repair or replacement results from the negligent
or intentionally wrongful acts of Lowe's, its agents or contractors) for the reason that such repair
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or replacement is necessary. Nothing contained herein shall limit ally other obligation of Site
Improvement Work in a good and workmanlike manner in compliance with all applicable Legal
Requirements and Developer's responsibility to repair latent defects, which obligations shall not
be limited by the time periods or notice requirements set forth above.
SECTION 10
INDEMNITY AND INSURANCE
10.1 Developer shall defend, indemnify and hold harmless Lowe's from any and all
judgments, actions liens, loss, damages, penalties, fines, liabilities, expenses (including
reasonable attorneys' fees) and claims by third parties in connection with -any construction
activity performed under this Agreement by or at the instance of Developer. Lowe's shall
defend, indemnify and hold harmless Developer from any and all judgments, actions, liens, loss,
damages, penalties, fines, liabilities, expenses (including reasonable attorneys' fees) and claims
in cOMection with any construction activity performed under this Agreement by or at the
insistence of Lowe's. Prior to commencing any work, Developer, or Lowe's, as the case may be,
shall obtain, or cause to be obtained by its contractor(s), the following minimum insurance
coverage:
1 0.1.1 Workers' Compensation - statutory limits
10.1.2 Employers' Liability - One Million Dollars ($1,000,000.00)
10.1.3 Commercial General Liability and Business Auto Liability as follows:
(a) Bodily Injury - Two Million Dollars ($2,000,000.00) per
occurrence
(b) Property Damage - Two Million Dollars ($2,000,000.00) per
occurrence
(c) Independent Contractors Liability - Two Million Dollars
($2,000,000.00) per occurrence;
(d) Products / Completed Operations Coverage which shall be kept in
effect for two (2) years after completion of work;
(e) "XCD" Hazard Endorsement, if applicable;
(f) "Broad Fonn" Property Damage Endorsement;
(g) "Personal Injury" Endorsements; .
(h) "Blanket Contractual Liability" Endorsement.
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If the construction activity involves the use of another party's tract, then the owner of
such tract shall be an additional insured and such insurance shall provide that the same shall not
be canceled, or reduced in amount or coverage below the requirements of this Agreement,
without at least thirty (30) days prior written notice to the named insureds and each additional
insured, If such insurance is canceled or expires then the constructing party shall immediately
stop all work on or use ofthe other party's tract until either the required insurance is reinstated or
replacement insurance is obtained.
10.2 All insurance required by this Section 10 shall be procured from companies
licensed in the state where the Project is located and havi~g a general policy holder's rating of
not less than A and a financial rating of not less than Class IX as rated in the most current
available "Best's Key Rating Guide", All insurance may be provided under (i) an individual
policy covering this location, (ii) a blanket policy or policies which includes other liabilities,
properties and 10cations of such party (provided, however, that if such blanket commercial
general liability insurance policy or policies contain a general policy aggregate of less than Ten
Million Dollars ($10,000,000.00), then such insuring party shall also maintain excess liability
coverage necessary to establish a total liability insurance limit of Ten Million Dollars
($10,000,000.00), (iii) a plan of self-insurance, provided that any party so self-insuring notifies
the other parties of its intent to self-insure and agrees that upon request it shall deliver to such
other parties each calendar year a copy of its annual report that is audited by an independent
certified public accountant which discloses that such party (as to Lowe's such party shall consist
of Lowe's and its parent corporation) has Two H~dred Million Dollars ($200,000,000.00) or
more of net current assets, or (iv) a combination of any of the foregoing insurance programs. To
the extent of any deductible carried by' a party, such party shall be deemed to be covering the
amount thereof under an informal plan of self-insurance; provided, however, that in no event
shall'any deductible exceed Two Hundred Fifty Thousand Dollars ($250,000.00) unless (a) such
party complies with the requirements regarding self-insurance pursuant to (iii) above or (b) such
party maintains net current assets in excess of Two Hundred Million Dollars ($200,000,000.00).
Each party agrees to furnish to any party requesting in writing the same, a certificate(s) of
insurance evidencing that the insurance required to be carried by such party is in full force and
effect.
10.2.1 The insurance required above shall include the following provisions:
(a) shall provide for severability of interests; and
(b) shall provide that an act or omission of one of the insureds or
additional insureds which would void or otherwise reduce coverage, shall not
reduce or void the coverage as to the other named insureds.
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SECTION 11
BANKRUPTCY
11.1 If Developer files, or has filed against it, a bankruptcy petition, then the
bankruptcy trustee or debtor in possession shall assume or reject this Agreement within sixty (60)
days of the date the bankruptcy petition is filed.
SECTION 12
PERMITTED DELAYS
12.1 Whenever performance is required of any party hereunder, such party shall use all
reasonable commercial efforts to perform and take all necessary measures in good faith to
perform; provided, however that if completion of performance shall be delayed at any time by
reason of acts of God, weather, war, terrorism, civil commotion, riots, work stoppages arising out
of collective bargaining strikes, unavailability of materials or damage to work in progress by
reason of fire or other casualty or causes beyond the reasonable control of a party (other than
financial reasons) (collectively, "Permitted Delays"), then the time for performance as herein
specified shall be appropriately extended by the time of the delay actually caused. However, in
order for either party to be entitled to make a claim for any such delays, such party must give
such other party written notice of the conditions or events giving rise to the delay and the number
of days claimed to be due to such conditions or events within fifteen (15) days from the date of
the occurrence of the condition or event giving rise to the delay. The provisions of this
Section 12 shall not operate to excuse any party from the prompt payment of any monies
required by this Agreement.
SECTION 13Error! Bookmark not defined.
NOTICE
13,1 All notices, demands and requests required or permitted to be given under this
Agreement (collectively the "Notices'') must be in writing and must be delivered personally (with
written confirmation thereof), sent by nationally recognized overnight courier (subject to written
delivery confirmation thereof) or sent by United States certified mail, return receipt requested,
postage prepaid and addressed to the parties at their respective addresses set forth below, and the
same shall be effective upon receipt or refusal. The initial addressed of the parties shall be:
To Developer: RB Mechanicsburg Associates LP
c/o RD Management Corp.
810 Seventh Avenue, 28th Floor
New York, New York 10019
Attention: Richard J. Birdoff, Esq.
With a copy to:
Brown Raysman Millstein Felder& Steiner, LLP
900 Third Avenue
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Site Development Agreement
New York, New York 10022
Attention: Kenneth S, Brown, Esq.
To Lowe's by mail: Lowe's Horne Centers, Inc.
P.O, Box 1111
North Wilkesboro, North Carolina 28656
Attention: Construction Manager (ECO)
with a copy to: Lowe's Home Centers, Inc.
P,O, Box 1111
North Wilkesboro, North Carolina 28656
Attention: Legal Department (REO)
by courier: Lowe's Home Centers, Inc;
Highway 268 East
North Wilkesboro, North Carolina 28659
Attention: Construction Manager (BCD)
with a copy to: Lowe's Home Centers, lnc,
Highway 268 East
North Wilkesboro, North Carolina 28659
Attention: Legal Department (REO)
13.2 Upon at least ten (10) days' prior written notice, each party shall have the right to
change its address to any other address within the United States of America.
13.3 Informal communications made between Lowe's and Developer during the
completion of construction activities performed under this Agreement may be made by their
respective project managers as designated from time to time, but the same shall not constitute
fonnal notice under this Agreement.
SECTION 14
TIME OF THE ESSENCE
14.1 Developer acknowledges and agrees that time is of the essence to Lowe's with
respect to Developer's completion of the Site Improvement Work.
SECTION 15
RELATIONSHIP OF PARTIES
15.1 Nothing contained in this Agreement shall be deemed or construed, either by the
parties hereto or by any third party, to create the relationship of principal and agent or to create
any partnership, joint venture or other association between Developer and Lowe's.
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SECTION 16
COSTS AND ATTORNEYS' FEES
16.1 If either party brings or commences any legal action or proceeding to enforce any
of the terms of this Agreement (or for damages by reason of an alleged breach of this
Agreement), the prevailing party in such action shall be entitled to recovery of all costs and
expenses of litigation, including reasonable attorneys' fees and disbursements,
SECTION 17
MISCELLANEOUS
17.1 Each exhibit attached to and referred to in this Agreement is hereby incorporated
by reference as though set forth in full where referred to herein. The recitals are incorporated
herein by reference as matters of contract and not mere recital.
17.2 This Agreement, or the signature pages hereof, may be executed in any number of
original counterparts, all of which evidence only one agreement and only one full and complete
copy of which need be produced for any purpose. A facsimile of a signature will have the same
legal effect as an originally drawn signature.
17.3 The captions heading the various section of this Agreement are for convenience
and identification only, and shall not be deemed to limit or define the contents of their respective
sections.
17.4 This Agreement supersedes and cancels all. prior negotiations between the parties
with respect to the construction work described herein, other than the Lease, and any changes,
amendments, and/or modifications hereto must be in writing signed by the party against whom
enforcement is sought.
17.5 The failure to enforce any particular provision of this Agreement on any particular
occasion shall not be deemed a waiver by either party of any of its rights hereunder, nor shall it
be deemed to be a waiver of subsequent or continuing breaches of that provision, unless such
waiver be expressed in a writing signed by the party to be bound.
17,6 Any time period ofless than fourteen (14) days shall in the computation thereof
exclude Saturdays, Sundays, and state or national holidays. and any time period provided for
herein which shall end on Saturday, Sunday, or a legal holiday shall extend to 6:00 p.m. Eastern
Time of the next business day.
17.7 Since the parties hereto have participated in extensive negotiations in the drafting
of the terms and provisions of this Agreement, the parties agree that this Agreement shall be
construed without regard to the identity of the person or party who drafted the various provisions
and any rule of construction that document is to be construed against the drafting party shall not
be applicable,
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Site Development Agreement
17.8 The use in this Agreement of the terms "herein", "hereunder", "hereinabove",
"hereinafter", or similar words are used, the same shall be deemed to refer to this entire
Agreement, unless expressly stated to the contrary. The use in this Agreement of the terms
"include", "including" and words of similar import shall be construed as if followed by the
phrase "without limitation". The use in this Agreement of the words "such as" and "including"
shall not be deemed to limit the generality of the term or clause to which it has reference,
whether or not non-limiting language (such as import) is used with reference thereto, but rather
shall be deemed to refer to all other items or matters that would reasonably fall within the
broadest possible scope of such general statement, term or matter.
17.9 Developer and Lowe's intend that no otherperson or entity is to have any claim or
right under or any interest in this Agreement and no other person or entity is to have any right of
action hereon or hereunder.
17.10 This Agreement shall be construed and governed by the laws of the
Commonwealth of Pennsylvania, applicable to agreements made, and to be performed, wholly
within such state, and without regard to choice of law provisions.
17.11 Neither of the parties may assign its rights, or delegate its responsibilities under
this Agreement without the written consent of the other party, provided, however, that (i)
Developer may assign such rights to an entity controlled by Developer or the principals of
Developer, (ii) Developer may assign its rights and obligations hereunder to a Construction
Lender in connection with a construction loan, (iii) as otherwise permitted under this Agreement
(e.g, with respect to the performance of work which may be undertaken by contractors, agents,
etc.), and (iv) Lowe's may assign its rights and obligations hereunder to an affiliate or subsidiary.
17.12 This Agreement shall become a binding obligation of the parties only upon the
complete execution and unconditional delivery thereof by both parties.
17.13 Each of the Parties hereto agrees to cooperate with the other Party in executing
any ancillary agreements which may hereafter be necessary from time to time to carry out the
intent of the Parties as herein contemplated.
17.14 In the event any provision or portion of this Agreement is held by any court of
competent jurisdiction to be invalid or unenforceable, such holding will not effect the remainder
hereof, and the remaining provisions shall continue in full force and effect at the same extent as
would have been the case had such invalid or unenforceable provision or portion never been a
part hereof,
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFI' BLANK
SIGNATURES ARE ON THE FOLLOWING PAGE]
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Site Development Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorizedr.epr.esentatives effective as of the day and year first above written.
RB MECHANICS BURG ASSOCIATES LP
By: RJB Mechanicsburg LLC, its general partner
By:
Name:
Title:
LOWE'S HOME CENTERS, INC.
By:
Name:
Title:
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Site Development Agreement
EXHIBIT A
Site Plan
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EXHIBIT B
List of Site Improvement Plans & Specifications
SITE CONSTRUCTION PLANS FOR RJB MECHANlCSBURG SHOPPING CENTER
SHEET
DESCRIPTION
TITLE SHEET Dated AUGUST 27, 2004, last Revised OCTOBER 25,
2004
1
15
TOPOGRAPHIC & BOUNDARY SURVEY PLAN Dated AUGUST 27,
2004
SITE DEMOLITION PLAN Dated AUGUST 27, 2004, last Revised
September 10, 2004
OVERALL SITE CONSTRUCTION PLAN Dated AUGUST 27, 2004,
last Revised OCTOBER 25, 2004
OVERALL GRADING I UTILITIES CONSTRUCTION PLAN Dated
AUGUST 27, 2004, last Revised OCTOBER 25, 2004
PARTIAL SITE CONSTRUCTION PLAN Dated AUGUST 27, 2004,
last Revised OCTOBER 25, 2004
PARTIAL GRADING I UTILITIES CONSTRUCTION PLAN Dated
AUGUST 27, 2004, last Revised OCTOBER 25,2004
SOIL EROSION AND SEDIMENT POLLUTION CONTROL PLAN
(PHASE 1) Dated AUGUST 27, 2004, last Revised OCTOBER 25, 2004
SOIL EROSION AND SEDIMENT POLLUTION CONTROL PLAN
(PHASE 2) Dated AUGUST 27, 2004, last Revised OCTOBER 25, 2004
SOIL EROSION AND SEDIMENT POLLUTION ~ONTROL PLAN
(PHASE 3) Dated AUGUST 27,2004, last Revised OCTOBER 25,2004
POST CONSTRUCTION STORMW ATER MANAGEMENT PLAN
Dated AUGUST 27, 2004, last Revised OCTOBER 25,2004
SITE LANDSCAPING PLAN Dated AUGUST 27, 2004, last Revised
OCTOBER 25, 2004
SITE LIGHTING PLAN Dated AUGUST 27, 2004, last Revised
OCTOBER 25, 2004
SANITARY SEWER PROFILES Dated AUGUST 27,2004, last Revised
September 10, 2004
STORM SEWER PROFILES Dated AUGUST 27, 2004, last Revised
OCTOBER 25, 2004
STORM SEWER PROFILES Dated AUGUST 27, 2004, last Revised
OCTOBER 25, 2004
MISCELLANEOUS DETAILS & OTHER INFORMATION Dated
AUGUST 27, 2004, last Revised OCTOBER 25,2004
2
3
4
5
6
7
8
9
10
11
12
13
14
16
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18
MISCELLANEOUS DETAILS & OTHER lNFORMA TION Dated
AUGUST 27, 2004, last Revised OCTOBER 25,2004
MISCELLANEOUS DETAILS AND OTHER INFORMATION Dated
October 25, 2004
SOIL EROSION DETAILS & OTHER INFORMATION Dated
AUGUST 27, 2004
17
19
ROADWAY CONSTRUCTION PLANS FOR RJB MECHANICSBURG SHOPPING CENTER
SHEET
DESCRIPTION
A
TITLE SHEET Dated August 27,2004, Last Revised October 25,2004
1
ROADWAY CONSTRUCTION PLAN (pANEL 1) Dated August 27, .
2004
2
ROADWAY CONSTRUCTION PLAN (pANEL 2) Dated August 27,
2004, Last Revised October 25, 2004
3
ROADWAY CONSTRUCTION PLAN (GRADING / UTILITIES
P ANEL-l) Dated August 27, 2004, Last Revised September 10, 2004
4
ROADWAY CONSTRUCTION PLAN (GRADING / UTILITIES
P ANEL-2) Dated August 27, 2004, Last Revised September 10, 2004
5
STORM SEWER PROFILES Dated August 27,2004
6
MISCELLANEOUS DETAILS AND OTHER INFORMATION Dated
August 27,2004
7
MISCELLANEOUS DETAILS AND OTHER INFORMATION Dated
August 27, 2004
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EXHIBIT C
Pad Certification Form
ala
,. ..'
BUILDING PAD/L1J\.1ITS CERTIFICATION FORM
Pt'oip.rf
Date
Geotech. Engineer
Surveyor
Grading Contractor
Lowe's Const. Mgr.
o SUBGRADE
o STONE BASE
GEOTECHNICAL ENGINEERING CERTIFICATION
I certifY that the building pad/limits for the above referenced project, has been constructed
in accordance with the Geotechnical Investigation prepared by
dated, and Lowe's Specifications, dated
All earth cut and fills have been installed competently, properly and have been compacted
under the supervision of the below certifying Geotechnical Engineer. The building pad/limits has
been acceptably prepared to support the proposed construction. A fmal report containing a
description of the grading work, on-site recommendations and the results of testing and
inspections has been prepared and is dated
Geotechnical Engineer ( signature)
Registration No.
Date
Expiration Date
Affix Seal Here (not valid unless sealed)
ELEVATION CERTIFICATION
I certifY to the satisfactory completion of the grading for the building pad/limits In
accordance with the approved drawings and specifications engineered by
All as-built subgrade elevations have been taken on a 501 grid across the Lowe's building
pad/limits and are within the tolerance of 0 to -112 inches of the proposed sub grade elevation as
required by the Lowe's Specifications.
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Finished Floor Elevation
Surveyor (signature)
Registration No.
Date
Expiration Date
Affix Seal Here (not valid unless sealed)
GRADING CONTRACTOR VERIFICATION
I verify to the satisfactory completion of grading for the building pad/limits in accordance
with the approved Grading Drawings and Lowe's Specifications.
Contractor (signature)
Date:
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EXHIBIT D
Required Language in Letter of Credit
Drafts drawn under this Irrevocable Letter of Credit must be marked "Drawn under fName
ofBankl , Letter of Credit No. , dated , 199_" and
indicate that it is being drawn pursuant to an affidavit from in the form attached
hereto, The original of such affidavit shall be attached to said draft. (Name ofBankl
shall not be required to look beyond such affidavit but shall honor such draft upon
receipt.
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EXHIBIT E
Form of Draw Affidavit
STATE OF NORTH CAROLINA )
55,:
COUNTY OF WILKES
)
BEFORE ME, the undersigned authority, appeared who,
after first being duly sworn did depose and say as follows:
My name is and I am the of Lowe's Home
Centers, Ine" a North Carolina corporation defined as Lowe's under that certain Site
Development Agreement dated , 200_, wherein , a
is defined and referred to as the Developer. Pursuant to such Site
Development Agreement, Developer has caused [Name of Bank], to issue to Lowe's Home
Centers, Inc, its Irrevocable Letter of Credit No. . Lowe's has caused certain work to
be performed in accordance with the Site Development Agreement. [Name of Bank] is hereby
directed to deliver the funds due to Lowe's Home Centers, me" without any requirements of
approval by Developer or any other party.
. Executed the _ day of , 200_.
LOWE'S HOME CENTERS, INC.
By:
Name:
Title:
STATE OF NORTH CAROLINA }
COUNTY OF WILKES
55:,
}
On this, the
personally appeared
, 200_, before me, the undersigned officer,
, who acknowledged himself to be the
of Lowe's Home Centers, Inc. (the "Company") and that he as such
officer, being duly authorized to do so, executed the foregoing instrument on behalf of said
Company, for the purposes therein contained by signing the name of the Company by himself as
such officer.
day of
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
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EXHIBIT F
SET ASIDE AGREEMENT
November, _, 2004
Lowe's Home Centers, Inc.
Highway 268 East
North Wilkesboro, North Carolina 28659
Re: Site Development Agreement dated November -' 2004 (the "Site
Development Agreemenf'), between RJB Mechanicsburg LLC (the
"Developer") and Lowe's Home Centers. me. ("Lowe's")
Ladies and Gentlemen:
GMAC Commercial Mortgage Bank, a Utah industrial bank ("Lender")
understands that Developer and Lowe's have entered into the Site Development Agreement
which, among other things, provides for the performance by Developer of certain Site
Improvement Work pursuant to the Site Improvement Plans (both terms as defin~d in the Site
Development Agreement). Lender acknowledges that it is familiar with, and approves of, the
terms and provisions of the Site Development Agreement, and Lender, peveloper and Lowe's
hereby agree as follows:
1. Lender represents and warrants to Lowe's that Developer has established with
Lender and there currently is available to Developer from Lender an acquisition and construction
loan in the maximum principal amount of eight million three hundred thousand dollars
($8,300,000.00) (the "Construction Loan"), upon which Developer may draw to pay, among
other things, the Project Costs (as defined in the Site Development Agreement).
2. Lender hereby covenants and agrees that (a) subject to the provisions of
Paragraph 3 of this set aside letter, Lender will hold available under the Construction Loan eight
hundred seventy seven thousand dollars ($877,000.00) (the "Set Aside Funds") to be reserved
for payment of a portion of the Project Costs, and (b) subject to satisfaction of the Condition
(defined below), it will disburse to Lowe's, for the account of Developer, the amount, if any,
drawn by Lowe's (but in no event to exceed the amount of the Set Aside Funds) with respect to
the Project Costs, upon receipt from Lowe's of an affidavit in the form of Exhibit A attached
hereto and made by this reference a part hereof for all purposes (the "Draw Mfidavit"). Lender
shall not, and shall not be required to, require any documentation or other information of any
nature whatsoever other than such Draw Affidavit, and covenants and. agrees that Lender shall
honor the draft upon receipt of the Draw Affidavit, without regard to any disbursement
requirements in the Construction Loan documents Of otherwise. Except for the release of the Set
Aside Funds to Lowe's in accordance with this set aside agreement, the amount of the Set Aside
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Funds shall not be reduced until the due satisfaction by Developer of all of the conditions set
forth in Section 5.5 of the Site Development Agre.ement.
3, Lowe's hereby covenants and agrees that, the delivery by Lowe's of the initial
Draw Affidavit pursuant under this Set Aside Letter, shall constitute Lowe's absolute and
unconditional agreement (the "Building Covenant") that if the aggregate of the Set Aside Funds
and the funds which are required to be made available to Lowe's pursuant to the development
agreement between Developer and Hampden Township (the "Municipal Development
Agreement") a copy of which is annexed to the Site Development Agreement as Exhibit H) are
insufficient to complete the Work (defined below) and to otherwise fully reimburse to Lowe's all
of Lowe's costs and expenses reasonably incurred in the exercise of its take-over rights pursuant
to Section 6 of the Site Developnient Agreement, and all other costs and expenses incurred by
Lowe's in connection with the performance and completion of the Work together with interest
thereon as set fort in the Site Development Agreement, discharging or bonding any mechanic's
liens, liquidated damages due to Lowe's pursuant to the Site Development Agreement
(collectively, the "Lowe's Take-Over Costs"), Lowe's hereby agrees to complete the Work by
using its own funds, in accordance with the provisions of the Site Development Agreement. The
term "Work" means all construction work which is required to be completed by Developer as a
condition to the Rent Commencement Date (as defined in the Lease). If Lowe's Take-Over
Costs exceed the total of the funds actually paid to Lowe's from the Set Aside Funds and
pursuant to the Municipal Development Agreement (a "Site Work Deficiency"), Developer and
. Lender hereby agree that Lowe's shall have the absolute and unrestricted right to recover the full
amount of the Site Work Deficiency together with interest thereon as set forth in the Site
Development Agreement and the Lease, by an offset against the Fixed Rent payable under the
Lease, which monthly offsets shall be subject to provisions of Section l3(g) of the Lease limiting
rent offsets to twenty-five percent (25%) of any -monthly installment of Fixed Rent. Upon
request of the Lender (not more often than monthly during the performance by Lowe's of the
Building Covenant), Lowe's shall use commercially reasonable efforts to have the Project
Engineer certify as to the amount of the Site Work Deficiency, if any, and within a reasonable
time after Lowe's receipt of the Project Engineer's certification of a Site Work Deficiency,
Lowe's will advise the Lender (in the manner provided for giving notices as set forth in the
Mortgagee Non-Disturbance Agreement of even date herewith among Lowe's, Lender and
Developer) whether Lowe's agrees or disagrees with the Project Engineer's certification.
4. Provided the Condition is fulfilled, until full disbursement of the Set Aside
Funds:
(a) Lender's obligations under Paragraph 2 ofthis set aside agreement are
and shall remain, absolute and unconditional, and are not subject to the
satisfaction of any condition to Developer's right to require a disbursement under
the Construction Loan or othetwise to any condition other than Lender's receipt of
a Draw Affidavit; and
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(b) Neither a termination of, nor a default by Developer under, the
Construction Loan or otherwise with respect to Developer's obligations to Lender
will in any way reduce, limit or otherwise affect Lender's obligations under
Paragraph 2 of this set aside agreement.
5. As used herein, the "Condition" shall mean Lowe's delivery to Lender of an
unqualified written statement that all of the conditions set forth in Section 5( c) of the Lease (as
defined in the Site Development Agreement), except for the conditions in clauses (x) and (xi) of
said Section 5(c), have been fulfilled or have been waived in writing by Lowe's,
6. Lowe's agrees that if it becomes responsible to complete the Work, and
thereafter Lowe's receives any lien waivers or releases, or title updates with respect to any Work
it performs or which is performed on its behalf, within a reasonable time thereafter, it will
forward copies thereof to Lender. Lowe's further agrees that Lender or its construction
consultant shall have the right to reasonable access to the Lowe's Tract (as defined in the Site
Development Agreement) to monitor the progress of the Work; provided, however, that neither
the failure of Lowe's to comply with the provisions of this paragraph 6, nor any facts which may
be disclosed as a result of Lender's (or its consultant's) monitoring of the Work shall in any way
reduce, limit or otherwise affect Lender's obligations under Paragraph 2 of this set aside
agreement.
7, Developer has joined in the execution of this set aside agreement to ratify and
confimi the terms and provisions hereof, and in particular to Lowe's right to an offset against
rent as set forth in paragraph 3 hereof, notwithstanding anything to the contrary set forth in the
Lease, the Site Development Agreement or otherwise.
8. This set aside agreement may be signed in counterparts, each of which shall be
deemed an original and all of which when taken together shall constitute one instrument. A
facsimile signature shall have the same binding effect as an original signature.
9. This set aside agreement shall be binding upon and inure to the benefit of
Lowe's, Developer and Lender, their respective legal representatives, successors and assigns.
10. As long as Developer's obligations under the Site Development Agreement to
perform the Site Improvement Work (or Lowe's Building Covenant, as applicable) have not been
fully satisfied and completed, neither this set aside agreement, nor the provisions of the Site
Development Agreement or the Lease pertaining to this set aside agreement or referenced herein,
shall be modified or amended without the express written consent of all of the parties to this set
aside agreement.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK
SIGNATURES ARE ON THE FOLLOWING PAGE]
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CONFIRMED AND AGREED TO:
GMAC COMMERCIAL MORTGAGE BANK,
a Utah industrial bank
By:
Name:
Title:
LOWE'S HOME CENTERS, INC.
By:
Name:
Title:
RB MECHANICSBURG ASSOCIATES LP
By: RJB MECHANIcSBURG LLC,
its General Partner
By:
Name:
Title:
Lowe's Companies. Inc., by signing below hereby confirms that the "Building Covenant" is and
shall be deemed to be one of the covenants, obligations and acts to be performed or observed by
Lowe's Home Centers, Ine, as tenant under the provisions of the Lease, and is, as such, subject to
the provisions of the Guaranty of lease of even date given by the undersigned to Developer.
LOWE'S COMPANIES, INC.
By:
Name:
Title:
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Site Development Agreement
EXHIBIT A
Form of Draw Affidavit
STATE OF NORTH CAROLINA )
SS.:
COUNTY OF WILKES
)
BEFORE ME, the undersigned authority, appeared , who, after
first being duly sworn did depose and say as follows:
My name is. and I am the of Lowe's Home
Centers, me., a North Carolina corporation, defined as Lowe's under that certain Site
Development Agreement dated ,200-, wherein , a
is defined and referred to as the Developer. Pursuant to such Site
Development Agreement, [Name of Bank] has executed and delivered toLowe's Home Centers,
Inc, a certain "set aside agreement". Lowe's has caused certain work to be performed in
accordance with the Site Development Agreement and [Name of Bank] is hereby directed to
deliver to Lowe's Home Centers, Inc. dollars ($ ) as set forth in the
set aside agreement without any requirements of approval by Developer or any other party, and
without the requirement of any further documentation.
Executed the _ day of
,200_.
LOWE'S HOME CENTERS, INC.
By:
Name:
Title:
STATEOFNORTHCAROLINA}
ss:,
COUNTY OF WILKES
}
On this,' the
personally appeared
day of
, 200-, before me, the undersigned officer,
, who acknowledged himself to be the
of Lowe's Home Centers, Inc. (the "Company") and that he as such
officer, being duly authorized to do so, executed the foregoing instrument. on behalf of said
Company, for the purposes therein contained by signing the name of the Company by himself as
such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
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Site Development Agreement
EXHIBIT G
Form of Lien Waivers
PARTIAL CONDITIONAL WAIVER OF LIEN
TENANT:
GENERAL CONTRACTOR:
DEVELOPER/LANDLORD:
PROJECT NAME:
LOWE'S HOME CENTERS, INC.
STATE OF
)
S5.:
COUNTY OF
)
the property described as the
the receipt of dollars ($
for labor/materials provided through
with [Contracting Party] to provide
(Nature of WorklServices/Materials] for the improvements to
(the "Property"), and in consideration of
) do hereby waive my/our construction ,lien rights
,20_.
I/we have a contract
This waiver, together with all previous waivers, if any, covers all amounts due to us for
contract improvements provided through the date shown above, excepting retainage, if any.
[NAME OFWAIVINGPARTYJ
By:
Name:
Title:
ADDITIONAL WARRANTIES AND REPRESENTATIONS
I. The undersigned signatory warrants and represents that he has full authority to
execute this Partial Conditional Waiver of Lien for the firm or company listed below.
2. The undersigned signatory has personal knowledge of the facts sworn to in this
Partial Conditional Waiver of Lien and such facts are true and correct.
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Site Development Agreement
3, The undersigned has performed all work through , 20_ pursuant to the
terms and conditions of its contract, and in conformance with all plans and specifications for the
work,
4. Any and all contractors, subcontractors, laborers, suppliers and materialmen that
have provided labor, material or services to the undersigned for use or incorporation into the
construction of the improvements to the Property have been paid and satisfied in full, and there
are no outstanding claims of any character arising out of, or related to, the undersigned's
activities on, or improvements to, the Property,
5. There are no known unsatisfied claims for damages resulting from injury or death
to any employees, subcontractors, or the public at large arising out of any of the undersigned's
activities or construction work on the Property.
6. The undersigned is not aware of any Claims of Lien, Notices of Lien, or any suits
or claims for payment, loss or damage of any kind, nature or description which might constitute a
lien or encumbrance upon the Property as of the date of this Partial Conditional Waiver of Lien,
7. This Partial Conditional Waiver of Lien is specifically made for the benefit of the
Tenant, Landlord and the respective Lenders of Tenant and Landlord and the Owner's lender (if
any) or Developer/Landlord (if any), and any other person or entity with a legal or equitable
interest in the Property, and this Partial Conditional Waiver of Lien may be relied upon by any of
the aforementioned parties.
8. The undersigned is executing this Partial Conditional Waiver of Lien, as provided
by law, for and on behalf of the firm or company listed below for the express purpose of inducing
and receiving payment for work performed through the date of this Partial Conditional Waiver of
Lien.
9. This Partial Conditional Waiver of Lien constitutes a representation by the
undersigned signatory, for and on behalf of the firm or company listed below, that the payment
referenced above, once received, constitutes full and complete payment for all work performed,
and all costs or expenses incurred (including, but not limited to, costs for supervision, field office
overhead, home office overhead, interest on capital, profit, and general conditions costs) relative
to the work or improvements at the Property as of the date of this Partial Conditional Waiver of
Lien except for the payment of retainage. The undersigned hereby specifically waives,
quitclaims and releases any claim for damages due to delay, hindrance, interference, acceleration,
inefficiencies or extra work, or any other claim of any kind it may have against the Tenant,
Landlord and the respective Lenders of Tenant and Landlord, the Owner's lender (if any) or
Oeveloper/Landlord (if any), the General Contractor (if this Waiver is signed by a subcontractor
or supplier), or any other person or entity with a legal or equitable interest in the Property, as of
the date of this Partial Conditional Waiver of Lien, except as follows:
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10. The amount of money set forth as due and owing in the immediately preceding
Partial Conditional Waiver of Lien dated ,20_ has been received, and is deemed
paid in full.
IN WITNESS WHEREOF, the person signing this document, acting for and on behalf
of the Undersigned and all of its employees, subcontractors, laborers, suppliers and materialmen,
has placed his hand and seal this day of ,20_
[NAME OF WAIVING PARTY]
By:
Name:
Title:
[Insert appropriatejuratfor jun'sdictionJ
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Site Development Agreement
FULL UNCONDITIONAL WAIVER OF LIEN
TENANT:
GENERAL CONTRACTOR:
DEVELOPER/LANDLORD:
PROJECT NAME:
LOWE'S HOME CENTERS, INC.
STATE OF
)
55,:
)
COUNTY OF
My/our contract with [Other Contracting Party] to provide
for the improvements to the property described as
the , having been fully paid and satisfied upon receipt of
$ all my/our construction lien rights against such property are hereby
waived and released, without exception.
[NAME OF WAIVING PARTY]
By:
Name:
Title:
ADDITIONAL WARRANTIES AND REPRESENTATIONS
I. The undersigned signatory warrants and represents that he has full authority to
execute this Full Unconditional Waiver of Lien for the firm or company listed below.
2. The undersigned signatory has personal knowledge of the facts sworn to in this Full
Unconditional Waiver of Lien and such facts are true and correct.
3, The undersigned has performed all work required under its contract pursuant to all of
the terms and conditions of its contract, and in conformance with all plans and specifications for
the work,
4, Any and all contractors, subcontractors, laborers, suppliers and materialmen that
have provided labor, material or services to the undersigned for use or incorporation into the
construction of the improvements to the Property have been paid and satisfied in full, and there
are no outstanding claims of any character arising out of, or related to, undersigned's activities
on, or improvements to, the Property. This statement is intended to comply with any affidavit
requirements or procedures contained in the lien statutes of the state in which the Project is
located;
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Site Development Agreement
5. There are no known unsatisfied claims for damages resulting from injury or death to
any employees, subcontractors, or the public at large arising out of any of undersigned's activities
or improvements to the Property.
6. The undersigned is not aware of any Claims of Lien, Notices of Lien, or any suits or
claims for payment, loss or damage of any kind, nature or description which might constitute a
lien upon the Property as of the date ofthis Full Unconditional Waiver of Lien,
7. This Full UnconditionalW aiver of Lien is specifically made for the benefit of
Tenant, Landlord and the respective Lenders of Tenant and Landlord (if any) or
Developer/Landlord (if any), and any other person or entity with a legal or equitable interest in
the Property, and may be relied upon unconditionally by any ofthe aforementioned parties.
8. The undersigned signatory is executing this Full Unconditional Waiver of Lien, as
provided by law, for and on behalf of the undersigned for the express purpose of inducing and
receiving final payment from the DeveloperlLandlord (or lender or DeveloperlLandlord) for
work or improvements to the Property.
9, This Full Unconditional Waiver of Lien constitutes a representation by the
undersigned signatory, for and on behalf of the undersigned, that the payment referenced above,
once received, constitutes full and complete payment for all work performed, and all costs or
expenses incurred (including, but not limited to, costs for supervision, field office overhead,
home office overhead, interest on capital, profit, and general conditions costs) relative to the
work or improvements at the Property. The undersigned hereby specifically waives, quitclaims
and releases any claim. for damages due to delay, hindrance, interference, acceleration,
inefficiencies or extra work, or any other claim of any kind it may have against the Owner, the
Tenant, Landlord or the respective Lenders of Tenant or Landlord (if any) or DeveloperlLandlord
(if any), the General Contractor (if this Waiver is signed by a subcontractor or supplier), or any
other person or entity with a legal or equitable interest in the Property, relative to the work or
improvements at the Property.
10, The amount of money set forth as due and owing in the immediately preceding Full
Unconditional Waiver of Lien dated , _, has been received, and is deemed
paid in full.
IN WITNESS WHEREOF, the person signing this document, acting for and on behalf
of the Undersigned and all of its employees, subcontractors, laborers, suppliers and materialmen,
has placed his hand and seal this day of ,20_.
[NAME OF WAIVING PARTY]
By:
Name:
Title:
CK#
AMT.
ACCT.
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Site Development Agreement
EXHIBIT H
Agreement with Hampden Township
AGREEMENT
MADE this day of October, 2004 by and between RB Mechanicsburg
Associates, LP (hereinafter "Developer")
A
N
D
Hampden Township, Cumberland County, Pennsylvania (hereinafter "Hampden").
WHEREAS, Developer is the equitable owner of a certain parcel of land situate within
Hampden Township, said parcel of land being more particularly described in Exhibit "A"
attached hereto (the "Property"); and
WHEREAS, Developer is desirous of developing said lands under a Land Development
Plan captioned Preliminary/Final Subdivision land Development Plan for RJB
Mechanicsburg Shopping Center and dated June 17,2004, and last revised on July 23,
2004 (hereafter "Plan"), as the same was approved by the Board of Commissioners of
Hampden on July 29, 2004, copies of which plan are marked Exhibit "B" and attached
hereto; and
WHEREAS, in the application to Hampden for approval of the Plan the Developer
indicated its intention to construct at its sole cost and expense (including but not limited
to engineering, inspection and legal expenses incurred by Hampden in connection with
the Plan) all those improvements more particularly described in Exhibit "G" attached
hereto (the "Improvements"); and
WHEREAS, Developer has agreed to deposit with Hampden a bond with corporate
surety authorized by the Pennsylvania Insurance Commission to do business in
Pennsylvania, or a letter of credit, in the amount of $1,123,000.00 to guarantee the
installation of the Improvements and reimbursement of Hampden for expenditures
directly incurred in connection with the Improvements.
WHEREAS, Lowe's Companies, Inc. ("Lowe's"), a North Carolina corporation, intends
to lease and occupy the building identified as "Retail 'A'" on the Plan. The parties
desire that Lowe's be deemed to be a third party beneficiary to this Agreement and be
permitted to draw upon or otherwise obtain the financial security that is to be provided
by Developer under this Agreement to secure the construction of the Improvements.
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Site Development Agreement
NOW, THEREFORE, IT IS AGREED:
1. Developer covenants, promises and agrees to build. construct and install
all Improvements in accordance with the specifications of Hampden Township and in
the manner provided and approved by said Township, on or before the 15th day of
June, 2006, time being of the essence of this agreement.
2. Developer shall enter into contract(s) with such person or persons
necessary to construct the Improvements. Developer shall notify Hampden promptly
thereafter (1) that it has contracted for the construction of improvements, (2) specify an
improvement construction schedule, (3) provide a schedule of job site meetings (no less
than monthly), and (4) the name and address of the contractor and the Supervisor of
the work for the contractor. The contract between Developer and his contractor shall
contain a provision that the construction or installation is subject to the inspection and
approval of Hampden.
3. Developer concurrently delivers to Hampden its Bond with corporate
surety, a surety registered with the Pennsylvania Insurance Commission, in the amount
of $1,123,000.00. The amount of financial security required shalf be based upon an
estimate of the cost of competition of the required Improvements, submitted by the
Developer and prepared by a Professional Engineer licensed as such in this
Commonwealth and certified by such Engineer to be a fair and reasonable estimate of
such cost, which estimate has been approved by the Township Engineer and is
attached hereto as Exhibit "cn and is equal to 110% of the cost of completion estimated
as of 90 days following the date scheduled for completion by the Developer. The terms
and conditions of the Bond are that if (a) the Developer will and truly and faithfully
comply with and perform the terms of this agreement, including the construction of
Improvements on or before June 15,2006, in the manner provided and approved by
Hampden and (b) Developer shall indemnify completely, defend and save harmless
Hampden, its officers, agents and employees from any and all costs and damages
which Hampden, its officers, 'agents and employees may sustain or suffer by reason of
Developer failing to adequately and properly perform the terms and conditions of this
contract, including the construction of the Improvements, then the Bond shall be void;
otherwise, this Bond shall remain in force and effect.
In lieu of a corporate surety bond, Hampden will accept an Irrevocable Letter of
Credit (in form and substance to be approved by Hampden) from a local institution on
the Developer's behalf on the same terms and conditions as said bond in the amount of
$1,123,000.00, which sum and Letter of Credit shall be posted as security for
performance of this agreement, including the construction of the Improvements in a
manner approved by Hampden. Lowe's shall be named as a beneficiary under the
Bond or Letter of Credit that Developer provides pursuant to Paragraph 3 of this
Agreement. In the event Developer shall fail to construct the Improvements in
accordance with the terms of this Agreement, Hampden may, at its option and subject
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Sile Developmenl Agreemenl
to Lowe's rights under Paragraph 20, construct said Improvements at the Developer's
expense, in which event the funds represented by and posted through said Bond or
Letter of Credit shall be used to reimburse Hampden for the costs of such construction
and its reasonable necessary ancillary expenses. In the event the funds secured by
said Bond or Letter of Credit shall not be sufficient to satisfactorily construct the
Improvements or reimburse Hampden for its cost and expense to construct the same,
Hampden may file an appropriate legal action against Developer based upon this
agreement for the balance of the funds required to so construct the Improvements or
reimburse Hampden for the same.
4. As the work of installing the required Improvements proceeds, the party
posting the financial security may request that the Township release or authorize the
release, from time to time, such portions of the financial security which represents that
cost of the portion of the work upon the Improvements that has been completed in
accordance with the Plan. Any such request shall be in writing addressed to the
Township Engineer, and the Township Engineer shall have 45 days from receipt of
such request within which to allow the Township Engineer to certify in writing to the
Board of Commissioners that such portion of the work upon the Improvements has
been completed in accordance with the Plan. Upon such certification the Township
snail authorize release by the bonding company or lending institution of an amount as
estimated by the Township Engineer fairly representing the value of the Improvements
completed or, if the Board of Commissioners fails to act within said 45 day period, the
governing body shall be deemed to have approved the release of funds as requested.
The Board of Commissioners may, prior to final release at the time of completion and
certification by its Engineer, require retention of 10% of the estimated cost of the
aforesaid Improvements.
5. Intentionally deleted.
6. Hampden shall designate an Engineer to review development plans and
specifications for the Improvements. An escrow account shall be established by the
Developer as provided for in the Land Development Ordinance, and as adopted by the
Board of Commissioners from time to time.
7. During construction, Hampden shall designate an inspector to determine
whether the Improvements are being made in accordance with the Plan and all
applicable Hampden Township ordinances and specifications. It shall be the duty of the
Developer to request scheduling 2 working days prior to the desired inspection. Lack of
inspection does not constitute approval. Hampden shall do all things necessary to
assure the timely arrival of its inspector at the site of the Improvements following notice
by the Developer.
8. All construction shall be in accordance with the construction plans and
Hampden Township Ordinances. If a conflict exists between the plans and ordinances,
the stricter of the two will be used.
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Site Development Agreement
9. All erosion and sedimentation controls shall be installed in accordance
with the approved Plan and 9512 of the Land Development Ordinance prior to any other
construction activity occurring at the site. The erosion and sedimentation controls will
be properly maintained until all disturbed areas have become stabilized. This shall
include all stormwater conveyance controls (such as detention ponds, swales, piping,
etc.). It is the Developer's responsibility to stabilize the swales and detention facilities,
10. Developer shall convey by Deed of Dedication all streets, alleys, roads,
courts, avenues, drives, public ways, park areas, and other improvements that are
designated on the Plan for public dedication (the "Dedicated Improvements").
11 . Developer shall grant and convey by Deed of Dedication easements for
rights-of-way (including maintenance) desired by Hampden for all sewer and water lines
and telephone and electric facilities, bikeways and drainage ways shown on the Plan.
In the event easements are required from third parties, it shall be the duty of the
Developer to obtain them at his sole cost and expense.
12. Upon completion of the Improvements and before acceptance by
Hampden Township, owner shall deposit with Township a maintenance Bond or Letter
of Credit equal to 15% of the total cost of Improvements to ensure repair of defective
c~mditions appearing in said Improvements within and for a period of eighteen (18)
months from the date of acceptance' thereof by said Township, in form and with
sufficient surety acceptable to said Township, conditioned that if said Improvements are
in satisfactory condition by Township standards at the end of such maintenance period
(18 months), then said bond or Letter of Credit to become null and void, otherwise to
remain in full force and effect until all defective conditions are remedied to Township's
specifications.
13. Upon the satisfactory completion and final inspection of the Dedicated
Improvements, delivery of the appropriate Deeds of Dedication, their recording fees and
the delivery of Maintenance Bonds or Letter of Credit, Hampden agrees to accept the
Dedicated Improvements and to operate and/or maintain them.
14. Inspections required during construction:
A. Erosion and sedimentation control, prior to any other earth moving
activity occurring.
B. Road inspections (for roads to be dedicated to Township):
(1) Road sub-base shall be inspected prior to the base (stone)
being installed. Contractor shall provide a vibrator roll for inspection.
(2) Road base shall be inspected prior to the surface (10-2
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Site Development Agreement
Binder) being installed.
(3) Road binder shall be inspected prior to the wearing surface
being installed.
15, Flushing of all storm sewers will be required prior to the dedication of
public improvements. This requirement may be waived by the Township Engineer if a
problem does not exist.
16. Special items of concern:
A. If the construction bond or Letter of Credit is to expire, the
Developer will provide a Renewal of Guarantee to the Township within five (5) days
prior to the expiration or the Township will take the necessary steps to cash the bond or
letter of Credit.
B. Any roadway repairs/cuts after binder surface has been installed
shall be backfilled with stone aggregate and compacted in 6" lifts.
C. The Developer is responsible to correct any unforeseen physical
conditions that create a public safety hazard and occur on the Property as a result of
development of the Property pursuant to the Plan. Developer will correct such
conditions at Developer's expense and in a good and workmanlike manner.
17. Penalties
A. A stop work order may be issued by the Township whenever any
provision of this agreement is broken.
18 The Developer shall cause its contractors or subcontractors to obtain and
maintain liability and other insurance coverage and furnish certificates of insurance as
required by the Township.
19. In addition to the aforesaid requirements, the Developer agrees that it will
at its own expense:
A. Pay to the Township any fees required for entering into this
Agreement and for fees and other expenses such as, but not limited to, the payment for
Engineers (Township or Authority), applications and approvals, as may be required by
the ordinances and regulations of the Township and of the Authority of the Township of
Hampden,
B. Connect any underground springs or other waters encountered
during construction to the proposed storm sewers, or if necessary in the opinion of the
Township Engineer, connect to the proper outlet.
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C. During construction, the Developer shall police the construction
area daily, keeping it free and clear of all rubbish, refuse, brush and debris; the
Developer will accumulate said material and deposit the same in an area specified by
the Township representative until such time as the accumulated matter is removed from
the site by the Developer; he shall contain such matter in such a manner so that it will
not become wind-blown spread, or otherwise become a nuisance. All soil washed or
carried onto public streets during construction shall be cleaned up each day. Upon
completion of the construction, the Developer shall remove from the site and dispose of
all brush, rubbish, refuse and debris, leaving the area free and clear of same.
D. Remove all temporary buildings or structures within one month
after completion of the Improvements.
20. The parties understand and agree that Lowe's is an intended third party
beneficiary of this Agreement. In the event that Developer fails to construct the
Improvements in accordance with the terms of this Agreement, Hampden shall provide
to Developer and Lowe's written notice of such violation (the "Hampden Notice"). If
Developer fails to cure such violation within fifteen (15) days after receiving the
Hampden Notice (or, if such failure reasonably cannot be cured within fifteen (15) days,
Developer has not diligently pursued such cure), then Lowe's may elect to construct
said Improvements by providing to Hampden and Developer written notice of its
election to cure such failure (the "Lowe's Notice"). Such Lowe's Notice shall be
provided within twenty-five (25) days after the Township provides to Lowe's and
peveloper written notice of Developer's failure to cure the violation described in the
Hampden Notice. If Lowe's (i) fails to provide the Lowe's Notice to Hampden within
such twenty-five (25) day period or (ii) notifies Hampden in writing that it elects not to
cure such violation or (iii) fails to diligently pursue such cure, then Hampden may elect
to draw upon or otherwise obtain funds from the Bond or Letter of Credit pursuant to
Paragraph 3 of this Agreement for purposes of constructing the Improvements.
If Lowe's elects to cure such violation in accordance with this Paragraph 20,
Lowe's also shall be deemed to be the Developer under this Agreement, and any work
performed by Lowe's or at Lowe's direction shall be performed in accordance with the
terms of this Agreement. As the work of installing the required Improvements proceeds,
Lowe's may request that, in accordance with Paragraph 7 of this Agreement, the
inspector inspect such portion of the Improvements that has been completed and certify
that such portion has been completed in accordance with the Plan. Upon such
certification, funds in the amount equal to the cost of constructing and completing such
certified portion of the Improvements shall be paid and released from the Letter of
Credit or Bond directly to Lowe's.
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THIS AGREEMENT shall be binding upon the heirs, executors, administrators,
successors and assigns of Developer and Hampden and shall inure to the benefit of the
parties hereto, and to Lowe's, and their respective successors and assigns.
DEVELOPER
ATTEST
HAMPDEN TOWNSHIP
Secretary
Chairman
\\ny-srvO I \990504v09\1 1/3/04\45190.02 I I 00
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HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T, SHOEMAKER, ESQ,
IDENTIFICATION NO, 63871
ATTORNEY FOR PLAINTIFF
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
TAMMAC CORPORATION, now by
assignment, T AMMAC HOLDINGS
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION - LAW
RB. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
NO. 06-6015 Civil Term
AFFIDAVIT OF SERVICE
I, James T. Shoemaker, Esquire, counsel for the plaintiff, Tammac Corporation, now by
assignment, Tammac Holdings Corporation, being duly sworn according to law, depose and
say as follows:
1. On October 17, 2006, I served a true and correct copy of the plaintiff's complaint
upon the defendant, RB. Mechanicsburg Associates, L.P., pursuant to Pa.RC.P. No. 404(2).
2. The certified mail was received by the defendant, RB. Mechanicsburg
Associates, L.P., as evidenced by the United States Postal Service form 3811, which I received
on October 23,2006. A copy of the United States Postal Service form 3811 is attached hereto
as Exhibit "A" and incorporated herein by reference. S.
~---.
James T. Shoemaker, Esquire
Sworn and subscribed to
before me this 23rd day
of October, 2006.
"
lJu1df;ff/t: ~~
NOTA PUBLIC
COMMONWEP,lTtl Of PENNSYLVANIA
NOT NllAl SEAl.
....."..AN t~ota"" public
MARJORIE A. Z\:M,.;::.,r.,,..., . ,
Wllke~r..e. lUzerne county
MV commission Expires N"vembef 16. 2006
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HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER, ESQ.
IDENTIFICATION NO, 63871
ATTORNEY FOR PLAINTIFF
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
T AMMAC CORPORATION, now by
assignment, TAMMAC HOLDINGS
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION - LAW
RB. MECHANICSBURG ASSOCIATES,
L.P" and MAYER POLLOCK STEEL
CORPORATION,
Defendants
NO. 06-6015 Civil Term
AFFIDAVIT OF SERVICE
I, James T. Shoemaker, Esquire, counsel for the plaintiff, Tammac Corporation, now by
assignment, Tammac Holdings Corporation, being duly sworn according to law, depose and
say as follows:
1. On October 17, 2006, I served a true and correct copy of the plaintiff's complaint
upon the defendant, RB, Mechanicsburg Associates, L.P., pursuant to Pa.RC.P. No. 404(2).
2. The certified mail was received by the defendant, RB. Mechanicsburg
Associates, L.P., as evidenced by the United States Postal Service form 3811, which I received
on October 23,2006. A copy of the United States Postal Service form 3811 is attached hereto
as Exhibit "A" and incorporated herein by refere~ -----5
James T. Shoemaker, Esquire
Sworn and subscribed to
before me this 23rd day
of October, 2006.
"
r:=BfJ6J~
COMMON'NEAlTtI OF PENNSYLVANIA
NOT AlZ!i1.l SEAl.
., ""-"MAN Notan' pUblic
MARJORIE A. z;;~"'<,;::" ., ·
WIlke9-B3rre. Luzerne county
My commission ExpjrellNavember 16. 2006
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TAMMAC CORPORATION, now by
assignment, T AMMAC HOLDINGS
CORPORATION,
Plaintiff
v.
R.B, MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 06-6015 - Civil Term
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of the undersigned as counsel on behalf of Defendant, Mayer
Pollock Steel Corporation, only, with respect to the above-referenced matter.
DATE,/2_ C; -- t6
BY:
AL . CARMELITE,
J.D. o. 84730
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
(717) 651-3504
Attorney for Defendant,
Mayer Pollock Steel Corporation
I. -. ...
TAMMAC CORPORATION, now by
assignment, TAMMAC HOLDINGS
CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 06-6015 - Civil Term
R.B. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do
~
hereby certify that on this ~ day of December 2006, served a copy of the foregoing
document via First Class United States mail, postage prepaid as follows:
James T. Shoemaker, Esquire
Hourigan, Kluger & Quinn
600 Third Avenue
Kingston, PA 18704
R.B. Mechanicsburg Associates, L.P.
c/o RD Management Corporation
810 Seventh Avenue, 28th Floor
New York, NY 10019
~~ ",,2~
Joanne Parr
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HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER, ESQ.
IDENTIFICATION NO. 63871
ATTORNEY FOR PLAINTIFF
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
T AMMAC CORPORATION, now by
assignment, T AMMAC HOLDINGS
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION - LAW
RB. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
NO. 06-6015 Civil Term
1 0 DAY NOTICE OF PRAECIPE TO
ENTER JUDGMENT BY DEFAULT
TO: Richard J. Birdoff
RB, Mechanicsburg Associates, L.P.
c/o RB. Management, LLC
810 Seventh Ave
28th Floor
New York, NY 10019
Date of Notice: December 11. 2006
IMPORTANT NOTICE
Pursuant to PA RCP 237,5
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY A TIORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU.
UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A
JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY
LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
741052.1
.
-
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
-or-
PENNSYLVANIA LAWYER REFERRAL SERVICE
P.O. Box 1086, 100 South St.
Harrisburg, PA 17108
(Pennsylvania residents phone:
1-800-692-7375; out-of-state
residents phone: 1-717-238-6715)
HOURIGAN, KLUGER & QUINN, P.C.
BY:
~5
James T. Shoemaker, Esquire
1.0. No.: 63871
Counsel for the plaintiff, Tammac Holdings
Corporation
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
(570) 287-8005
741052,1
4 , ~
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER, ESQ.
IDENTIFICATION NO. 63871
ATTORNEY FOR PLAINTIFF
LAW OFFICES
600 Third Avenue
Kingston. PA 18704
(570) 287-3000
TAMMAC CORPORATION, now by
assignment, TAMMAC HOLDINGS
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION - LAW
R.B. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
NO. 06-6015 Civil Term
CERTIFICATE OF SERVICE
I, James T. Shoemaker, Esquire, hereby certify that I am serving upon the defendants a true
and correct copy of the plaintiff's 10 day notice of praecipe to enter judgment by default, by depositing
said document in the United States mail, first class, postage pre-paid, addressed as follows:
Donald L Carmelite Esquire
Marshall Dennehey Warner
Coleman & Goggin
4200 Crums Mill Road
Suite B
Harrisburg PA 17112
Richard J. Birdoff
R.B. Mechanicsburg Associates, L.P.
c/o R.B. Management, LLC
810 Seventh Ave
28th Floor
New York, NY 10019
HOURIGAN, KLUGER & QUINN, P,C.
BY:
~5--
James T. Shoemaker, Esquire
1.0. No.: 63871
Counsel for the plaintiff, Tammac Holdings
Corporation
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
(570) 287-8005
Date: December 11, 2006
747778.1
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TAMMAC CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
NO. 06-6015 Civil Term
R. 8, MECHANICSBURG
ASSOCIATES L.P., and MAYER
POLLOCK STEEL CORPORATION,
Defendants
R. B. MECHANICSBURG ASSOCIATES L.P.'S
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
Defendant, R.B, Mechanicsburg Associates L.P., by and through its attorneys, McNees
Wallace & Nurick LLC, files the following Preliminary Objections to Plaintiffs Complaint:
1. On October 16, 2006, Plaintiff Tammac Corporation ("Plaintiff') filed a
complaint in the above-captioned matter against Defendant R.B. Mechanicsburg Associates L.P.
("R.8, Mechanicsburg") and Defendant Mayer Pollock Steel Corporation ("Mayer Pollock").
2. The Complaint alleges that Mayer Pollock demolished a mobile home belonging
to Anthony Cole and Cathy Cole that served as collateral for a note in favor of Plaintiff. See
Complaint, generally,
Preliminary Objection pursuant to
Pa. R. Civ. P. l028(a)(4)
3. R.B. Mechanicsburg incorporates herein by reference paragraphs one (1) and two
(2) above,
4. Pa. R. Civ. P. 1028(a)(4) provides that a preliminary objection may be filed
asserting the legal insufficiency of a pleading.
....
5. Plaintiffs Complaint fails to allege that R.B. Mechanicsburg demolished the
collateral at issue, that R, B. Mechanicsburg breached any duties owed to Plaintiff, or that R.B.
Mechanicsburg acted negligently.
6. Plaintiffs Complaint fails to allege facts sufficient to state a legally cognizable
claim against R,B, Mechanicsburg.
WHEREFORE, Defendant R.B, Mechanicsburg requests that its preliminary objection be
sustained and that Plaintiffs claims against R.B. Mechanicsburg be dismissed as legally
insufficient.
Preliminary Objection pursuant to
Pa. R. Civ. P. 1028(a)(2) and (a)(4)
7, R.B. Mechanicsburg incorporates herein by reference paragraphs one (1) through
six (6) above,
8, Pa. R. Civ. P. 1 028(a)(2) provides that a preliminary objection may be filed
asserting that a pleading contains impertinent matter.
9, Pa, R. Civ. P. 1028(a)(4) provides that a preliminary objection maybe filed
asserting the legal insufficiency of a pleading.
10. Plaintiffs Complaint contains a demand for recovery of reasonable attorneys' fees.
11. Under Pennsylvania law, attorneys' fees are recoverable only pursuant to statute
or contract.
12. Plaintiffs Complaint fails to assert any contractual or statutory basis for recovery
of attorneys' fees.
13, The facts alleged in the Complaint do not support Plaintiffs claim for recovery of
attorneys' fees,
2
14. Plaintiffs demand for recovery of reasonable attorneys' fees is impertinent as it is
unsupportable by Pennsylvania law,
WHEREFORE, Defendant R.B. Mechanicsburg requests that its preliminary objection be
sustained and that the demand for recover of attorneys' fees be dismissed and stricken from the
Complaint.
McNEES WALLACE & NURICK LLC
By
Kl ber! . Colonna
LD. No. 80362
100 Pine Street
P.O. Box 1166
Harrisburg, P A 17108
ph, (717) 232-8000
fax (717) 237-5300
Attorneys for Defendant
R,B, Mechanicsburg Associates L.P.
Dated: December 19, 2006
3
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was served this
date first class mail, postage prepaid, upon the following:
James T. Shoemaker, Esq.
Hourigan, Kluger & Quinn, P.C.
600 Third Ave,
Kingston, P A 18704
Attorney for Plaintiff
Donald L. Carmelite, Esq.
Marshall Dennehey Warner Coleman & Goggin
4200 Crums Mill Road
Suite B
Harrisburg, P A 17112
Attorney for Mayer Pollock Steel Corporation
~.~J~
Kim erly . Colonna
Dated: December 19, 2006
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2006-06015 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY. OF CUMBERLAND
TAMMAC CORPORATION ET AL
VS
R B MECHANICSBURG ASSOC ET AL
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
MAYER POLLOCK STEEL
CORPORATION
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of MONTGOMERY
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On October
27th , 2006 , this office was in receipt of the
attached return from MONTGOMERY
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Montgomery Co
Postage
6.00
9.00
10.00
33.00
4.05
62.05 .,/ ~ It /()'l/oG.
10/27/2006
HOURIGAN KLUGER QUINN
R. Thomas Kl ne
Sheriff of Cumberland County
Sworn and subscribe to before me
day of
this
A.D.
R, THOMAS KLINE
Sheriff
EDWARD L. SCHOR??
Solicitor
OFFICE OF THE SHERIFF
On~ Courthouse Square
Carlisle, Pennsylvania 17013
TO:
RONNY R. ANDERSON
Chief Deputy
JODY S, SMITH
Real Estate Deputy
o
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Hon. John durante
Montganery County Sheriff
RE:
Tanrnac cOrporation
VS
RB Mechanicsburg Associates LP et al
06-6015 civiJ.
...
Very truly yours,
r~"~~<~ '
R. Thomas Kline, Sheriff
Cumberland County) Pennsylvania
~ar Sheriff:
Enclosed please find Notice and Canplaint
to be served upon Mayer Pollock Steel Corporation
South Keirn Street
Pottstown, PA 19464
,
in your County.
....-\~' -<-
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PERSON SE~ -- ~,~,-'....
RELA110N I PO~mON yl <...
PlACE OF SERVICE As CI V6-1
,..-
ltME Of SER'v1CE }2t3~
I 0 ~I <t -O<...D
. DATE OF SERVICE I
NUMBER Of ATTEMPTS
DEPutY _ 37
DEPUTY _, "'-.
lAST DAY OF SERVICE I , · 1.5 () ~
return of service.
.~
-
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In The Court of Common Pleas of Cumberland County, Pennsylvania
TAMMAC'Corporation
vs.
RB Mechanicsburg Associates et al
SERVE: Mayer Pollock Steel Corporation
06-6015 civil
No.
Now,
October 17, "2006
, I, SHERIFF OF CillvIBERLAND COUNTY, P A, do
hereby deputize the Sheriff of Montganery
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
r~~
Sheriff of Cumberland County, P A
Affidavit of Service
,20_, at
0' clock
M. served the
Now,
within
. upon
. at
by handing to
a
copy of the original
and made known to
the contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
me this _ day of ,20_
COSTS
SERVICE
WLEAGE
AFFIDAVIT
$
$
SHERIFF'S RETURN
PROTHONOTARY
C- 3810
DEFENDANT: Mayer Pollock Steel Corporation
DOCUMENT SERVED: Civil
INDIVIDUAL SERVED: Tina Tomkins
RELATIONSHIP TO DEFENDANT: Person In Charge
DATE AND PREVAILING TIME: Oct. 19,2006 @ 12:05
LOCATION: South Keim Street, Pottstown, P A
7~ ~ ~~ ItUU ~ H de ~""e
u It" ~ tutd ~ u" de ~ tJj
~, ~ tJj 1JelUt4f!q41t/4,.
"'~ uJ, ~ ~ flU, H dU ~ 46 41UfHIU.
NOTARIAL SEAL
PATRICIA A GIAMBRONE
Notary Public
taRIS10WN BOROUGH, MONT~ COONf'(
My Ct:Jmrnssioo Expies o.;,c. 13, 200&
SHERIFF'S RETURN - U.S. CERTIFIED MAIL
~
CASE NO: 2006-06015 P
COMMON~EALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
.
TAMMAC CORPORATION ET AL
VS.
R B MECHANICSBURG ASSOC ET AL
R. Thomas Kline
, Sheriff
of Cumberland
County, Pennsylvania, who being duly sworn according to law served the
within named DEFENDANT
,R B MECHANICSBURG ASSOCIATES
LP
by United States Certified Mail postage
prepaid, on the 17th day of October ,2006 at 0000:00 HOURS, at
810 SEVENTH AVENUE
28TH FLOOR
NEW YORK, PA 10019
I a true
and attested copy of the attached COMPLAINT & NOTICE
Together
with
The returned
receipt card was signed by L FLAGLE
10/19/2006
on
Additional Comments:
Docketing
Service
Affidavit
Surcharge
18.00
7.52
.00
10.00
.00
35.52 vCf- /1/DQ/04
.;.-'
Sheriff's Costs:
ine //,/
cu~;land County
Paid by HOURIGAN KLUGER QUINN
on 10/27/2006 .
Sworn and Subscribed to before me this
day of
A.D.
8. ..........
~1IIIed M8II 0 ElqlMa MeII
o Reg1aNltd 0 Return ReceIpt for Meroh8ndIee
D IntUNd Mall D C.O.D.
4. RestrIcted DeIlvery? (Ext1a Fee) 0 Yes
7005 1160 0002 1107 7640 06-6015 civil
1. Artk:Ie Adell! III rJ to:
RB Mechanicsburg Associates LP
810 ~th Avenue 28th Floor
New YorK" NY 10019
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P. "~""~fromltan ?
If VES. ... dIIvery ....... below: 0 No
PS Fonn 3tJ11,.~2ClO4
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c....Ii: RIIum .......
102595-02-M.1540
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER, ESQ.
IDENTIFICATION NO. 63871
ATTORNEY FOR PLAINTIFF
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
T AMMAC CORPORATION, now by
assignment, TAMMAC HOLDINGS
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
VS.
CIVIL ACTION - LAW
R.B. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
NO. 06-6015 Civil Term
PLAINTIFF'S ANSWER TO RB. MECHANICSBURG ASSOCIATES. L.P.'S
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
The plaintiff, Tammac Corporation, now by assignment Tammac Holdings
Corporation ("Tammac"), by and through it's counsel, Hourigan, Kluger & Quinn, P,C"
hereby submits its answer to the preliminary objections filed on behalf of the defendant,
RB. Mechanicsburg Associates, L.P. ("RB."), as follows:
1. Admitted.
2. Denied. Tammac's complaint is a writing which speaks for itself.
3. Tammac incorporates the above paragraphs by reference pursuant to Pa,
RC,P. No, 1019 (g).
4. Denied. The averments set forth in paragraph 4 of RB.'s preliminary
objections are denied pursuant to Pa, RC.P. No, 1029 (d).
5. Denied. Tammac's complaint is a writing which speaks for itself.
750870.1
6. Denied. Tammac's complaint is a writing which speaks for itself.
WHEREFORE, Tammac respectfully requests this Court to deny and dismiss
RB.'s preliminary objections.
7. Tammac incorporates the above paragraphs by reference pursuant to Pa.
RC.P. No. 1019 (g).
8. Denied. The averments set forth in paragraph 8 of RB.'s preliminary
objections are denied pursuant to Pa. RC.P. No. 1029 (d).
9. Denied. The averments set forth in paragraph 9 of RB.'s preliminary
objections are denied pursuant to Pa, RC.P. No. 1029 (d).
10. Admitted.
11. Denied. The averments set forth in paragraph 11 of RB.'s preliminary
objections are denied pursuant to Pa, RC.P. No. 1029 (d).
12. Denied. Tammac's complaint is a writing which speaks for itself.
13. Denied. The Note and Security Agreement, which are attached to
Tammac's complaint as Exhibit "A" and incorporated therein by reference, specifically
provide that Tammac's reasonable attorney's fees and expenses are part of the
secured indebtedness secured by the Collateral which was demolished by RB. or its
agent, Mayer Pollock Steel Corporation ("Mayer").
14. Denied. The Note and Security Agreement, which are attached to
Tammac's complaint as Exhibit "A" and incorporated therein by reference, specifically
provide that Tammac's reasonable attorney's fees and expenses are part of the
750870.1
secured indebtedness secured by the Collateral which was demolished by RB. or its
agent, Mayer.
15. Denied. The averments set forth in paragraph 15 of RB.'s preliminary
objections are denied pursuant to Pa. RC.P. No. 1029 (d).
WHEREFORE, Tammac respectfully requests this Court to deny and dismiss
RB.'s preliminary objections.
Respectfully submitted,
H~~P.C.
James T. Shoemaker, Esquire
1.0, No. 63871
Counsel for the plaintiff, Tammac Holdings
Corporation
600 Third Avenue
Kingston, PA 18704
tel: 570-287-3000
fax: 570-287-8005
Date: January 5, 2007
750870.1
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER, ESQ.
IDENTIFICATION NO. 63871
ATTORNEY FOR PLAINTIFF
LAW OFFICES
600 Third Avenue
Kingston. PA 18704
(570) 287-3000
TAM MAC CORPORATION, now by
assignment, TAMMAC HOLDINGS
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION - LAW
R.B. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
NO. 06-6015 Civil Term
CERTIFICATE OF SERVICE
I, James T. Shoemaker, Esquire, hereby certify that I am serving upon the defendants a true
and correct copy of the foregoing answer, by depositing said document in the United States mail, first
class, postage pre-paid, addressed as follows:
Kimberly M. Colonna, Esquire
McNees Wallace & Nurick, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Counsel for R.B. Mechanicsburg Associates,
L.P.
Donald L Carmelite, Esquire
Marshall Dennehey Wamer Coleman &
Goggin
4200 Crums Mill Road
Suite B
Harrisburg PA 17112
BY:
HOU~UINN'P.C.
~
James T. Shoe er, Esquire
I.D. No.: 63871
Counsel for the plaintiff, Tammac Holdings
Corporation
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
(570) 287-8005
Date: January 5, 2007
750872.1
"
.'
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER, ESQ.
IDENTIFICATION NO. 63871
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
ATTORNEY FOR PLAINTIFF
TAMMAC CORPORATION, now by
assignment, T AMMAC HOLDINGS
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
V5.
CIVIL ACTION - LAW
RB. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
NO. 06-6015 Civil Term
PLAINTIFF'S ANSWER TO R.B. MECHANICSBURG ASSOCIATES. L.P.'S
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
The plaintiff, Tammac Corporation, now by assignment Tammac Holdings
Corporation ("Tammac"), by and through it's counsel, Hourigan, Kluger & Quinn, P.C.,
hereby submits its answer to the preliminary objections filed on behalf of the defendant,
RB. Mechanicsburg Associates, L.P. ("RB,"), as follows:
1. Admitted.
2. Denied, Tammac's complaint is a writing which speaks for itself,
3, Tammac incorporates the above paragraphs by reference pursuant to Pa.
RC,P. NO.1 019 (g).
4. Denied, The averments set forth in paragraph 4 of RB.'s preliminary
objections are denied pursuant to Pa. RC.P. No. 1029 (d),
5. Denied. Tammac's complaint is a writing which speaks for itself.
750870.1
~
i .
6. Denied. Tammac's complaint is a writing which speaks for itself.
WHEREFORE, Tammac respectfully requests this Court to deny and dismiss
RB.'s preliminary objections,
7. Tammac incorporates the above paragraphs by reference pursuant to Pa.
RC.P. No. 1019 (g).
8. Denied. The averments set forth in paragraph 8 of RB.'s preliminary
objections are denied pursuantto Pa. RC.P, No, 1029 (d),
9, Denied. The averments set forth in paragraph 9 of RB.'s preliminary
objections are denied pursuant to Pa. RC,P. No. 1029 (d).
10. Admitted.
11. Denied. The averments set forth in paragraph 11 of RB.'s preliminary
objections are denied pursuant to Pa. RC.P. No, 1029 (d),
12. Denied, Tammac's complaint is a writing which speaks for itself,
13, Denied. The Note and Security Agreement, which are attached to
Tammac's complaint as Exhibit "A" and incorporated therein by reference, specifically
provide that Tammac's reasonable attorney's fees and expenses are part of the
secured indebtedness secured by the Collateral which was demolished by RB, or its
agent, Mayer Pollock Steel Corporation ("Mayer"),
14. Denied. The Note and Security Agreement, which are attached to
Tammac's complaint as Exhibit "A" and incorporated therein by reference, specifically
provide that Tammac's reasonable attorney's fees and expenses are part of the
750870.1
,-
'i
secured indebtedness secured by the Collateral which was demolished by RB. or its
agent, Mayer.
15, Denied. The averments set forth in paragraph 15 of RB.'s preliminary
objections are denied pursuant to Pa. RC.P. No. 1029 (d).
WHEREFORE, Tammac respectfully requests this Court to deny and dismiss
RB.'s preliminary objections.
Respectfully submitted,
H~~P.C.
James 1. Shoemaker, Esquire
1.0. No. 63871
Counsel for the plaintiff, T ammac Holdings
Corporation
600 Third Avenue
Kingston, PA 18704
tel: 570-287 -3000
fax: 570-287 -8005
Date: January 5, 2007
750870.1
".
. .
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER, ESQ.
IDENTIFICATION NO. 63871
ATTORNEY FOR PLAINTIFF
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
TAMMAC CORPORATION, now by
assignment, TAMMAC HOLDINGS
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION - LAW
R.B. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
NO. 06-6015 Civil Term
CERnFICATE OF SERVICE
I, James T. Shoemaker, Esquire, hereby certify that I am serving upon the defendants a true
and correct copy of the foregoing answer, by depositing said document in the United States mail, first
class, postage pre-paid, addressed as follows:
Kimberly M. Colonna, Esquire
McNees Wallace & Nurick, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Counsel for R.R Mechanicsburg Associates,
L.P.
Donald L Carmelite, Esquire
Marshall Dennehey Wamer Coleman &
Goggin
4200 Crums Mill Road
Suite B
Harrisburg PA 17112
BY:
HOURIGA~UINN, P.C.
~
James T. Shoe er, Esquire
I.D. No.: 63871
Counsel for the plaintiff, T ammac Holdings
Corporation
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
(570) 287-8005
Date: January 5, 2007
750872.1
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T AMMAC CORPORATION, now by
assignment, T AMMAC HOLDINGS
PENNSYLVANIA
CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
v.
NO. 06-6015 - Civil Term
R.B. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
JURY TRIAL DEMANDED
PRAECIPE TO SETTLE. DISCONTINUE & END CASE
TO: PROTHONOTARY
Cumberland County, Pennsylvania
Kindly mark the above-referenced matter as SETTLED, DISCONTINUED and ENDED.
Respectfully submitted,
HOURIGAN, KLUGER & QUINN
DATE:
03/1'" /U 7
BY:
,.~
<.../ --~'
JAMES T. SHOEMAKER, ESQUIRE
600 Third Avenue
Kingston, P A 18704
(570) 287-3000
Attorney for Plaintiff
j . ~.
TAMMAC CORPORATION, now by
assignment, TAMMAC HOLDINGS
CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 06-6015 - Civil Term
R.B. MECHANICSBURG ASSOCIATES,
L.P., and MAYER POLLOCK STEEL
CORPORATION,
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do
hereby certify that on this ~~ day of April 2007, served a copy of the foregoing document via
First Class United States mail, postage prepaid as follows:
James T. Shoemaker, Esquire
Hourigan, Kluger & Quinn
600 Third Avenue
Kingston, PA 18704
Kimberly M. Colonna, Esquire
McNees, Wallace & Nurick
100 Pine Street
PO Box 1166
Harrisburg, P A 17108-1166
~w, \1\, ~~'>\,.
Jo . Parr
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