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HomeMy WebLinkAbout05-2884w CH SINKING SPRING ASSOCIATES, L.P., V. Plaintiff MSB PROPERTY, LLC, KLNB, LLC Defendants IN THE COURT OF COMMON PLEAS . CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-apP7 ACTION FOR DECLARATORY JUDGMENT 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 717-249-3166 GH SINKING SPRING IN THE COURT OF COMMON PLEAS ASSOCIATES, L.P., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. MSB PROPERTY, LLC KLNB, LLC ACTION FOR Defendant DECLARATORY JUDGMENT NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. SI USTED QUIERE DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES, USTED TIENE VIENTE (20) DIAS DE PLAZO AL PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENCIA ESCRITA 0 EN PERSONA 0 POR ABOGADO Y ARCHIVAR EN LA CORTE EN FORMA ESCRITA SUS DEFENSAS 0 SUS OBJECIONES A LAS DEMANDAS EN CONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE DEFIENDE, LA CORTE TOMARA MEDIDAS Y PUEDE ENTRAR UNA ORDEN CONTRA USTED SIN PREVIO AVISO 0 NOTIFICACION Y POR CUALQUIER QUEJA 0 ALIVIO QUE ES PEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE PERDER DINERO 0 SUS PROPIEDADES 0 OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 717-249-3166 GH SINKING SPRING ASSOCIATES, L.P., V. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. OS-- 1 ipdp l MSB PROPERTY, LLC KLNB, LLC ACTION FOR Defendant DECLARATORY JUDGMENT ACTION FOR DECLARATORY JUDGMENT AND NOW, comes Plaintiff, GH Sinking Spring Associates, L.P., by and through its attorneys, the Law Offices Stephen C. Nudel, PC, and hereby makes claim for declaratory relief in connection with a contract dispute between Plaintiff and Defendant, and avers as follows: 1. Plaintiff is GH Sinking Spring Associates, L.P., a Pennsylvania limited partnership, of 20 Erford Road, Suite 10, Lemoyne, PA 17043. 2. Defendant, MSB Property, LLC, is a California limited liability company, of Huntington Beach, CA 92647. 3. Defendant is KLNB, LLC, is a Maryland limited liability company, of 100 West Road, Suite 505, Baltimore Maryland. KLNB has been joined in this matter strictly as a result of its status as an escrow agent as more fully described below. Herein after, any reference to "Defendant" refers to Defendant MSB Property, LLC, and not KLNB, LLC, unless specifically stated otherwise. 4. On January 10, 2005 the parties entered into an Agreement of Sale (the "Agreement") for real property known as Units numbered 1,3 and 4, together with proportionate, undivided interest for all Units in the Common Elements of the Condominium, as defined in the Declaration of Condominium of Sinking Spring Retail Center (the "Property"). A copy of the Agreement for Sale is attached hereto and made a part hereof as Exhibit A. 5. As part of the Agreement, Defendant deposited One Hundred Fifty Thousand Dollars ($150,000.00) with KLNB, LLC, which sum was deposited into an interest bearing escrow account. Said Deposit and all interest accrued thereon shall be collectively referred to herein as the "Deposit". 6. KLNB, LLC, continues to hold the Deposit as the escrow agent. 7. Pursuant to the terms of Paragraph 11(a) of the Agreement, Defendant was granted a Due Diligence Period within which to perform such tests, investigations, assessments, audits, studies and make such inquiries it deemed necessary or appropriate to evaluate the Property. The Due Diligence Period was to end on January 30, 2005. 8. The Agreement provided that if, prior to the expiration of the Due Diligence Period, the Defendant was dissatisfied with any aspect of Defendant's inspection of the Property, Defendant could, by written notice to Plaintiff no later than the last day of the Due Diligence Period, terminate the Agreement, and the Deposit would be returned. If Defendant did not provide Plaintiff with written notice of termination within the Due Diligence Period, then the provisions of Paragraph 11(a) of the Agreement, including Defendant's inspection and termination rights, were to be deemed waived. 9. Paragraph 26 of the Agreement expressly states that the Agreement could not be changed, modified, amended, or altered unless such change, modification, amendment or alteration was in writing and duly executed by Plaintiff and Defendant. 10. Paragraph 22 of the Agreement expressly states that time is of the essence of the Agreement. 11. By written letter agreement (the "First Proposed Letter Agreement") dated January 26, 2005 executed by Plaintiff and Defendant, the Due Diligence Period was extended from January 30, 2005 to 5:00 p.m. (Eastern) on February 11, 2005. A true and correct copy of the First Proposed Letter Agreement is attached hereto and made a part hereof as Exhibit B. 12. On February 11, 2005, Defendant requested a further extension of the Due Diligence Period to February 14, 2005. In accordance with the Agreement, Plaintiff sent Defendant a written proposed letter agreement (the "Second Proposed Letter Agreement") for the Defendant to execute that would have extended the Due Diligence Period until 5:00 p.m. (Eastern Standard) on February 14, 2005. The Plaintiff does not have in its possession, and does not believe there exists, a copy of the Second Proposed Letter Agreement executed by both parties. A copy of the Second Proposed Letter Agreement executed only by the Plaintiff is attached hereto as Exhibit C. 13. on February 15, 2005, Defendant again requested an extension of the Due Diligence Period. Additionally, Defendant requested an extension of the closing date. Plaintiff, under the belief that the Second Proposed Letter Agreement referenced above had been executed by Defendant, and in accordance with the Agreement, sent Defendant, by e- mail, a draft of an Amendment to Agreement of Sale for Defendant to execute that would have, if executed and delivered by both parties, extended the Due Diligence Period until 5:00 p.m. (Eastern Standard Time) on February 21, 2005. A copy of the Amendment to Agreement of Sale is attached hereto as Exhibit D. 14. The Plaintiff never received confirmation from Defendant as to the acceptability of the draft Amendment nor did Plaintiff receive copy of the Amendment executed by the Defendant. More importantly, the Plaintiff never executed the Amendment to Agreement of Sale. Accordingly, as the terms of the Agreement require both parties to execute any agreement modifying any terms of the Agreement, the Amendment is a nullity. 15. At 4:58 p.m. Eastern Standard Time on February 22, 2005, Defendant sent to Plaintiff correspondence demanding amendments to certain provisions of the Agreement. Defendants indicated in the correspondence that if Plaintiff did not agree to the amendments or further extend the Due Diligence Period, the correspondence was to serve as a termination of the Agreement, and a request of the return of the Deposit. A true and correct copy of Defendant's February 22, 2005 correspondence is attached hereto and made a part hereof as Exhibit E. 16. The Due Diligence Period expired prior to Defendant's correspondence of February 22, 2005. In accordance with the terms of the Agreement, as modified by the letter agreement referenced in paragraph 11 above, the Due Diligence Period expired at 5:00 p.m. (Eastern) on February 11, 2005 without the parties extending the Due Diligence Period pursuant to written agreement executed by both parties and without the Defendant having provided Plaintiff with written notice of termination pursuant to Paragraph 11(a) of the Agreement. Accordingly, Defendant's right to terminate the Agreement and obtain the return of the Deposit pursuant to said paragraph was deemed waived. 17. In the alternative, in accordance with the terms of the Agreement, as modified by the letter agreement referenced in paragraph 11, and if the Second Proposed Letter Agreement referenced in paragraph 12 above is found to be binding on the Plaintiff despite the fact that the same was not executed by the Defendant, the Due Diligence Period expired at 5:00 p.m. (Eastern) on February 14, 2005 without the parties extending the Due Diligence Period pursuant to written agreement executed by both parties and without the Defendant having provided Plaintiff with written notice of termination pursuant to Paragraph 11(a) of the Agreement. Accordingly, Defendant's right to terminate the Agreement and obtain the return of the Deposit pursuant to said paragraph was deemed waived. 18. In the alternative, in accordance with the terms of the Agreement, as modified by the letter agreement referenced in paragraphs 11, and if the Second Proposed Letter Agreement referenced in paragraph 12 above is found to be binding on the Plaintiff, and if the Amendment to Agreement of Sale referenced in paragraph 13 is found to be binding on the Plaintiff despite the fact that the Amendment was not executed by either party or agreed to in any way by either party, the Due Diligence Period expired at 5:00 p.m. (Eastern) on February 21, 2005 without the parties extending the Due Diligence Period pursuant to written agreement executed by both parties and without the Defendant having provided Plaintiff with written notice of termination pursuant to Paragraph 11(a) of the Agreement. Accordingly, Defendant's right to terminate the Agreement and obtain the return of the Deposit pursuant to said paragraph was deemed waived. 19. On February 24, 2005, Plaintiff advised Defendant by correspondence that (1) the Amendments to the Agreement requested by Defendant's correspondence of February 22, 2005 were not acceptable to Plaintiff; (2) the Due Diligence Period expired in accordance with the terms of the Agreement, as modified under the terms of the Agreement, prior to February 22, 2005; (3) the notice of termination set forth in the letter of February 22, 2004 constituted a default by Defendant under the Agreement; (4) Defendant was not entitled to a return of the Deposit pursuant to the terms of the Agreement; and (5) demanded that Defendant instruct the escrow agent to disburse the Deposit to Plaintiff. Defendant was further advised that Plaintiff remained willing and able to honor Plaintiff's obligations under the Agreement. A true and correct copy of Plaintiff's February 24, 2005 correspondence is attached hereto and made a part hereof as Exhibit F. 20. On February 25, 2005, Defendant, through its counsel, David Greenman, advised Plaintiff of Defendant's disagreement relative to the expiration of the Due Diligence Period prior to notice of termination; however, Defendant did not provide any documentation supporting Defendant's claim. A true and correct copy of Defendant's Counsel's February 25, 2005 correspondence is attached hereto and made a part hereof as Exhibit G. 21. On March 31, 2005, Defendant, through its counsel, Paul Cianci, sent to the escrow agent, KLNB, correspondence advising of the dispute and requested that the escrow agent remain in possession of the deposit until the dispute was resolved. A true and correct copy of Defendant's March 31, 2005 correspondence is attached hereto and made a part hereof as Exhibit H. 22. On April 5, 2005, Plaintiff sent correspondence to Defendant's Counsel, requesting that Mr. Cianci provide a detailed explanation of and supporting documentation for Defendant's position that Plaintiff is not entitled to the disbursement of the Deposit pursuant to the Agreement. To date, Plaintiff has received neither an explanation nor documentation supporting Defendant's position. A true and correct copy of Plaintiff's April 5, 2005 correspondence is attached hereto as Exhibit I. 23. Defendant has not purchased the Property from Plaintiff pursuant to the Agreement. 24. Plaintiff requests a determination as to Plaintiff's entitlement to the Deposit as a result of Defendant's termination of the Agreement in breach of its terms. WHEREFORE, Plaintiff respectfully requests entry of a judgment declaring that the Deposit held by Defendant KLNB is to be paid to the Plaintiff as a result of Defendant MSB's termination of the Agreement in breach of its terms. Respectfully submitted, LAW,JOFFT;CES JTE,HEN C. NUDEL, PC Date: June a, 2005 St phen C.udel, E uire ttorney ID #417 Andrew T. Kravitz, Esquire Attorney ID 480142 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Plaintiff EXHIBIT A F.t1-galtPurcnase Contracts\Sinkingsonnl-iVISBProoerry-vr2 APG: = 12/20/04; 13/23/04 AGREEMENT OF SALE THIS AGREEMENT OF SALE made this ,' c ti day of 2004 by and between GH SIlVKING SPRING ASSOCIATES, L.P, a Pennsylvania limited partnership, ("Seller") and MSB PROPERTY, LLC, a California limited liability company ("Purchaser"). BACKGROUND: A. Seller is the owner of certain real property located in South Heidelberg Township, Berks County, Pennsylvania known as Units numbered 1, 3 and 4, together with corresponding proportionate, undivided interest for all Units in the Common Elements of the Condominium (the "Condominium"), as defined in the Declaration of Condominium of Sinking Spring Retail Center, a Condominium dated May 12, 1999 in Volume 3083, page 2148 in the land records of Berks County (the "Recorder's Office"), as amended by that certain Amendment to Declaration of Condominium of Sinking Spring Retail Center, a Condominium dated October 19, 1999 and recorded in the Recorder's Office in Volume 3153, page 1554 (the "First Amendment") (collectively, the "Declaration") and consisting of a shopping center containing approximately 71,257 square feet of existing building space, all of which is more particularly described in Exhibit "A-1" attached hereto and incorporated herein by reference and depicted on the Site Plan attached as Exhibit "A" attached hereto and made a part hereof; B. As used herein, Unit 1 is sometimes referred to as the "Supermarket Parcel"; Unit 3 is sometimes referred to as the "Retail Parcel"; and Unit 4 is sometimes referred to as the "Development Parcel"; and collectively referred to as the "Units." C. Seller wishes to sell to Purchaser and Purchaser wishes to purchase from Seller said Premises upon terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises contained herein, and intending to be legally bound hereby, Seller and Purchaser agree as follows: 1. A2reement to Sell and Purchase Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, subject to the terms and conditions of this Agreement, the Premises consisting of the following: (a) All those tracts or pieces of land comprising the Units, with any buildings and other improvements situated thereon; together with all easements, rights of way, licenses, privileges, hereditaments and appurtenances, if any, belonging to or inuring to the benefit of the land (including all easements, rights of way, privileges, licenses and other rights and benefits belonging to or running with the ownership of the Units); and (b) All right, title and interest of Seller in and to any land lying in the bed of any highway, street, road or avenue, opened or proposed, in front of or abutting or adjoining the premises. 2. Purchase Price. The Purchase Price for the Premises shall be SEVEN MILLION FIVE HUNDRED TWENTY-FIVE THOUSAND and 00/100 DOLLARS (57,525,000.00) (the "Purchase Price"), subject to adjustment as provided in this Agreement. 3. Payment of Purchase Price The Purchase Price shall be payable as follows: (a) A good faith deposit of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) (the "Deposit") upon execution of this Agreement of Sale, which shall be held by KLNB, LLC, 100 west Road, Suite 505, Baltimore, Maryland, 21204, Attention: Kevin Barrett in an interest- bearing escrow account with interest payable to the party entitled to the benefit of the Deposit. The Deposit shall be paid by cash, cashier's check or wire transfer of immediately available federal funds; (b) The Deposit, together with all interest accrued thereon, is collectively referred to herein as the "Deposit." In the event Purchaser purchases the Property in accordance with this Agreement, the Deposit shall be delivered to Seller at Closing (as hereinafter defined) and applied to the Purchase Price. After the expiration of the Due Diligence Period, the Deposit shall be non-refundable to Purchaser, except for termination resulting from casualty pursuant to paragraph 6, Seller's default or Seller's inability to satisfy the conditions set forth in paragraph 8(a) below or to convey title to the Property in the condition required by paragraph 5 below; (c) Purchaser shall be credited with an amount equal to the outstanding principal balance, together with any accrued but unpaid interest, owed by Seller and assumed by Purchaser under the Existing Loans (hereafter defined) on the date of Closing; which Existing Loans are to be assumed pursuant to paragraph 8 below; and (d) The balance of the Purchase Price shall be paid by cashiers, title company or certified check, or immediately available funds to Seller's account, together with remittance of the Deposit held in escrow, on the date of Closing of this sate, subject to adjustments as set forth herein. 4. Closine (a) Closing ("Closing") hereunder shall take place at Purchaser's Title Company, or at such other location as the pages hereto shall mutually agree upon, on or before thirty (30) days after completion of the Due Diligence Period (hereafter defined). (b) Purchaser shall have one (1) option to extend the date of Closing, for a period of not more than fifteen (15) business days upon written notice from Purchaser to Seller sent not later than the date Originally scheduled for Closing in order to allow Purchaser additional time to finalize any required arrangements with respect to the assumption of the Existing Loans (as further described in Section 8b below), provided that Purchaser is diligently pursuing assuming the Existing Loans, the delay was not caused by the actions or inactions of Purchaser and Purchaser shall, contemporaneously with the delivery of such written extension notice, deposit with the Purchaser's Title Company the additional sum of Twenty-rive Thousand Dollars and 00/100 (x25,000.00) by ofnciai bank cash en's or attorney's such trust check (the "Extension Deposit"). In the event the Purchaser delivers an Extension Deposit, such Extension Deposit shall be included in the definition of Deposit defined above. 5. Cond tion of Title At Closing, Seller shall convey to Purchaser good and marketable fee simple title to the Premises by delivery of a special warranty deed, in recordable form (the "Deed"), such title to be free and clear of liens, encroachments, easements, restrictions, objections, and other encumbrances, except for the Permitted Encumbrances (hereafter defined), and shall be insurable as aforesaid at ordinary rates by Purchaser's Title Company. ForthepurposesofthisAgreement,"Permitted Encumbrances" shall mean: (a) those matters shown on Exhibit "B" attached hereto and made a part hereof, including without limitation all documentation evidencing or securingthe Existing Loans; (b) the terms and conditions contained m the leases and occupancy agreements listed on Exhibit "B-1" (the "Leases") attached hereto and made a part hereof, and (c) those matters appearing in Purchaser's Title Commitment (hereafter defined) which are not objected to byPurchaser in writing prior to the expiration of the Due Diligence Period (hereafter defined). Purchaser shall, at its own expense, cause title to the Premises to be examined by the Purchaser's Title Insurance Company. Within thirty (30) days from the date of this Agreement, Purchaser shall deliver to Seller a copy of the Title Insurance Company's Report of Title or Commitment to Insure ("Purchaser's Title Commitment") with respect to the Premises and shall designate to Seller in writing any objections to or defects in title to the Premises, which shall be disclosed by Purchaser's Title Commitment and which Purchaser desires to be removed by the Title Insurance Company. Any objections or defects in title to the Premises (including those which may be disclosed by a survey) which are not specifi ed in writing by Purchaser to Seller prior to the expiration of the Due Diligence Period, shall be deemed waived and accepted by Purchaser, except to the extent that any such objection or defect shall have arisen after the date of this Agreement. If title to any part of the Premises shall not be in accordance with the requirements above, Purchaser shall have the option of (i) taking such title to the Premises as Seller can give without an abatement of the Purchase Price or claim for damages against Seller with Purchaser hereby waiving and releasing any such claim, or (ii) terminating this Agreement of Sale and having the Deposit with accrued interest immediately returned to Purchaser with neither Purchaser or Sellerhaving any further obligations under this Agreement of Sale. Solely with respect to title defects which arise after the date of this Agreement which are of a determinable monetary value, Seller shall be required to pay amounts necessary to cure such defect from the sales proceeds at closing or, at Seller's option, escrow sufficient funds with Purchaser's Title Company to enable the Title Company to insure against loss to Purchaser as a result of such defect. E RiskofLoss. Risk of loss shall remain with theSelleruntilClosing. Seller shall maintain all insurance policies currently in effect for the Premises until Closing. In the event the Premises shall be damaged or destroyed by fire or other casualty between the date of this Agreement and the completion of Closing, Purchaser may elect to: W accept the Premises in its then damaged condition without abatement of the Purchase Price in which event Seller shall assign to Purchaser the proceeds of all fire and extended coverage insurance policies attributable to the Premises; or (a) terminate this Agreement in which event the Deposit shall be refunded to Purchaser. 7. Operations Prior to Closing Between the date first above written and the earlier of (i) the termination of this Agreement of sale, or a the Closing date: 3 (a) Except as set forth in paragraphs 6 (relating to damage by casualty) and 9(k) relating to condemnation), the Premises shall be maintained, operated and managed in the same manner as it is Presently being maintained, operated and managed, and the premises shall be in substantially the same quah y and condition on the Closing date as on the date hereof (reasonable wear and tear and damage by casualty excepted). (b) Seller shall promptly deliver to Purchaser a copy of any tax bill, notice or assessment. or notice of change in a tax rate or assessment affecting the Premises, any notice claim of vieiadolL of any law, any notice of any taking or condemnation or notice of intent to enter w th respect to a condemnation affecting or relating to the Premises, or any other notice affecting or relating t o the PrernIses. (c) Any payments required to be made to contractors, subcontractors, mechanics. matenalmen and ail other persons in connection with work done or services performed with respect to the Premises prior to the Closing date shall be made as and when due, but in any event prior to the Closing date, and as of the Closing date there shall be no basis for the filing of any mechanics' or materialmen's liens against the Premises on the basis of any work done or ser vices performed on Seller's behalf with respect to the Premises. (d) Seller shall not enter into any new contract, service agreement, leasing agreement, management agreement or other agreements relating to the repair, maintenance or operation of the Premises which cannot be terminated without termination fee or penalty within sixty (60) days after Closing, without Purchaser's prior written consent. (e) Termination of Leases. Seller agrees not to terminate any of the Leases prior to Closing without the prior written approval of Purchaser, which approval Purchaser agrees not unreasonably to withhold or delay if a tenant is in default under the terms of its lease and such approval shall be irrevocably deemed to have been given if no objection is raised by Purchaser and delivered to Seller within ten (10) days after delivery of Seller's request for approval. Neither the termination of any of the Leases prior to Closing by reason of the expiration of its term or by reason of the tenant's default thereunder, nor the existence of a default by the tenant thereunder shall excuse Purchaser from its obligations under this Agreement (including without limitation its obligation to pay the full Purchase Price). 8. Conditions of Closin (a) The obligation of Purchaser under this Agreement to purchase the Premises from Seller is subject to the satisfaction of each of the following conditions (any one of which may be waived in writing in whole or in part by Purchaser at or prior to Closing): (i) All of the representations and warranties by seller, set forth in paragraph 9 and otherwise herein, shall be true and correct at and as of the date of Closing in all material respects as though such representations and warranties were made at and as of the date of Closing; 4 ii) Seller, in all material respects, shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with prior to or as of the Closing date; Seller shall provide Purchaser, seven (7) days prior to Closing, Tenant Estoppel Certificates ("Tenant Estoppel"), in form and substance reasonably acceptable to Purchaser, from tenants of the Center comprising at least ninety (90%) percent of the leased space in the Center; provided, however, that Seller shall not be required to obtain certificates or agreements which alter the substantive rights and obligations of the tenants under the Leases. Notwithstanding the provision set forth in this paragraph 8(a) to the contrary, if and to the extent, after the use of reasonable efforts, Seller has not been able to obtain from any of the tenants under the Leases, a Tenant Estoppel, Seller shall give to Purchaser written notice of such inability ("Inability Notice") on or before the date occurring seven (7) days prior to Closing; and upon receipt of an Inability Notice, Purchaser shall give to Seller a written statement in which Purchaser shall elect, at Purchaser's sole option, either to waive the requirement for the delivery of the missing Tenant Estoppel and to accept, in its place as satisfying the requirement for the delivery thereof, the representations and warranties of Seller stating that the Lease for the non-delivering tenant is in full force and effect and that Seller has not received a notice of default thereunder, or to terminate this Agreement by giving notice of such termination to Seller within five (5) days after receipt of the Inability Notice from Seller. In the event Purchaser timely terminates this Agreement in accordance with the provisions of the preceding sentence by giving timely written notice of such termination to Seller, this Agreement shall thereupon be and become null and void, the Deposit (and all interest accrued thereon) shall be returned to Purchaser, and neither party shall have any further rights nor obligations under this Agreement. In the event Purchaser does not timelyterrainate this Agreement pursuant to the provisions of this paragraph 8(a) after receipt of an Inability Notice, Purchaser shall be deemed conclusively to have elected to waive the requirement for the delivery of the missing Tenant Estoppel; and (iv) Seller shall convey to Purchaser good and marketable title in accordance with paragraph 5 of this Agreement. (b) Seller's obligations hereunder are conditioned upon Purchaser assuming all outstanding obligations of Seller, as Borrower, under the loan documents evidencing and securing those certain loans from Artesia Mortgage Capital Corporation (Retail Parcel) and Conseco Mortgage Capital, Inc. (Supermarket Parcel) (collectively, the "Existing Lenders") in the original principal amounts of $1,800,000.00 and $4,524,000.00, respectively, (the "Existing 5 Loans"). The outstanding principal balance under the Existing Loans on the date of Closing shall be credited against the Purchase Price at Closing. The outstanding principal balance under the Existing Loans is approximately $5,910,000.00 in the aggregate as of the date hereof. Purchaser shall be responsible for satisfying the requirements of the Existing Lenders in connection with the assignment and assumption of the Existing Loans, including without limitation, obtaining the Existing Lenders' approval in accordance with the loan documents and payment of the one percent (1 %) assumption fee required by the Existing Lenders. Seller shall provide Purchaser with copies of the loan documents to be assumed within five (5) days after full execution of this Agreement. In addition, Seller shall reasonably cooperate with Purchaser's efforts to satisfy the Existing Lenders' requirements; provided, however, that Seller shall not be required to incur additional third party costs in connection with such cooperation. (c) Seller's obligations hereunder are further conditioned upon the following: (i) Purchaser shall post bonds and other security required by any governmental authority in connection with the remaining development of the Property (or replace any such bonds or other security that may have been posted by Seller); (ii) Purchaser shall assume the responsibility for all costs of all permits and connection fees for the utilities in connection with the proposed development of the Development Parcel; (iii) Purchaser shall assume Seller's obligations with respect to time periods from and after Closing under the Subdivision Improvements Agreement to be entered into between Seller and South Heidelberg Township (the "Township") for improvements depicted on or contemplated by the approved plans for the Development Parcel substantially as depicted on Exhibit "C" attached hereto and made a part hereof, including without limitation, the obligation to post a bond in favor of the Township in the amount of $298,015.00 to secure the installation of said improvements. Seller shall deliver a copy of the latest draft of the Subdivision Improvement Agreement within five (5) days after the execution and delivery of this Agreement. 9. Representations and Warranties. Seller, to induce Purchaser to enter into this Agreement of Sale, represents and warrants to Purchaser as follows: (a) Authority and Required Consents. Seller has full power, authority and legal right to enter into, execute and perform its obligations under this Agreement of Sale and the execution and delivery thereof requires no further action or approval in order to make same a binding and enforceable obligation of Seller; (b) Conflict. The execution and delivery hereof, the transaction(s) contemplated hereby and compliance with the enns and conditions hereof will noto ontlict with, or result in a breach of any mortgage, lease, agreement or other instrument, or any currently existing 6 applicable law, judgment, order, writ, injunction, decree, rule or regulation of any court, administrative agency or other a vemmental authority to which Seller is a party or by which it or its properties are bound, the conflict or breach of which would materially adversely affect Seller' s ability to consummate the sale of the Premises contemplated herein; (c) Reoulatorv Compliance (1) Seiler has complied in all material respects with all applicable federal, state and local laws, regulations and ordinances, including, but not limited to, zoning and building codes, affecting the Premises and its current use; (Z) Seller has received no notice from any govemmental authority of any violations of any federal, state or local law, regulation or ordinance affecting any portion of the Premises which remains uncorrected. Seller shall cure, prior to Closing, any violation of which Seller receives written notice prior to the Closing, or which results from any inspection of the Premises which occurs prior to Closing; (d) Public Improvements No assessment forpublic improvements has been served upon the Seller with respect to the Premises which remains unpaid; (e) Litigation There is no action, suit or proceeding pending, or to the knowledge of Seller, threatened against or affecting Seller or the Premises or any portion thereof or relating to or arising out of the ownership, management or operation of the Premises, in any court or before or by any federal, state or local entity which would materially impair the value of the Premises or the consummation of the transaction contemplated hereby; (f) Insolvency There has not been filed by or against Seller a petition in bankruptcy or insolvency proceedings or forreorganization or for the appointment ofa receiver or trustee, under state or federal law, nor has the Seller made an assignment for the benefit of creditors or filed a petition for an arrangement or entered into an arrangement Mth creditor, which petition, proceedings, assignment or arrangement was not dismissed by final, unappealable order of the court or body having jurisdiction over the matter; and Seller has not admitted in writing its inability to pay its debts as they become due nor is Seller in fact unable to so pay its debts; (g) Leases and Contracts There are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Premises, and no management, service, equipment, supply, maintenance, employment or concession agreements which are not terminable upon thirty (30) days notice with respect to or affecting the Premises, other than those set forth on the attached Exhibit `B-1", (h) Utilities The Premises are served by public water and public sewer; (i) Flood Plain. The Premises are not located within a flood plain area or Special flood hazard area as defined by the federal government pursuant to he Flood Disaster Protection Act of 1973, as amended; O Subdivision. The Premises constitutes one or more independent parcels of real estate, each of which has been validly subdivided in compliance with all applicable subdivision laws, regulations and ordinances; and (k) Condemnation Seller has not received any notice of intent to enter or notice of any condemnation proceeding or other proceedings in the nature of eminent domain or taking in connection with the Premises. In the event Seller receives any such notices, it will forthwith send a copy of such notice to Purchaser, and if a portion of the Premises is taken or condemned and the loss of such portion would materially impair the operation of the Shopping Center as shown on the Site Plan, Purchaser shall have the right to: (1) terminate this Agreement of Sale and have the Deposit with accrued interest immediately returned to Purchaser with neither Purchaser or Seller having anv further obligations under this Agreement of Sale; or (2) proceed to Closing without an abatement of the purchase price. 10. Coo eration. The parties shall cooperate with and assist each other (at no cost to the cooperating party) in obtaining any and all permits, licenses, certificates and/or other approvals required or convenient for the development, operation, leasing, repair and maintenance of the Shopping Center including, but not limited to, building permits, use and occupancy certificates, zoning permits and all other necessary or appropriate pen-nits or approvals. 11. Due Diligence (a) General Investigations Commencing upon Purchaser's receipt of an executed copy of the Agreement of Sale from Seller, and continuing until January 30, 2005 (the "Due Diligence Period"), Seller and its representatives shall make available to Purchaser all plans, surveys, title policies, and other information relevant to the Premises as Purchaser shall reasonably request (to the extent such documents and information are in Seller's possession), and subject to the rights of existing occupants in the Shopping Center, Purchaser shall have the right to perform such tests, investigations, assessments, audits and studies (including without limitation, topographical studies, soil tests, ground water tests, environmental audits and other tests), prepare such plans, drawings and surveys, and make such inquiries and searches of governmental records as Purchaser shall deem necessary or appropriate in its sole iudgment and discretion, in connection with its evaluation of the Premises; and Seller shall cooperate reasonably with such investigations of the Premises. Any entry by Purchaser onto the Premises shall be subj ect to the following conditions: (a) Such entry shall be at Purchaser's sole cost and expense; (b) Purchaser shall return each test location to substantially its original condition; (c) neither Purchaser nor any of its agents or contractors shall suffer or cause any liens or encumbrances against the Premises arising from such activities, and Purchaser shall indemnify, defend and save harmless Seller from any such liens or encumbrances; and (d) Purchaser shall indemnify and hold Sellerhannless from and against any claims for injuries to persons or Premises or other liability arising out of or in any way related to Purchaser's activities on the Premises including any (1) claims or judgments against Owner or (2) physical damage to the Premises, in either case caused by any acts or omissions of Purchaser, its agents and contractors while on the Premises during the Due Diligence Period unless such claims or liability result from the negligence or willful misconduct of Owner or its agents or contractors. Purchaser's indemnity obligations under the preceding sentence shall survive termination of this Agreement. If Purchaser, in its solejudgment, is dissatisfied with any aspect of any inspection, test, assessment, audit, study, application or investigation, Purchaser may, at Purchaser's sole option and discretion, by written notice to Seller no later than the last day of the Due Diligence Period, terminate this Agreement of Sale after which the Deposit with accrued interest shall be returned to Purchaser with neither Purchaser or 8 Seller having any further obligations under this Agreement of Sale. Should Purchasernotprovide Seller with a written notice oftemiination within the Due Diligence Period, then this paragraph shall be deemed waived. (b) Documentation Seller agrees to promptly provide to Purchaser copiescf all existing Leases, engineering reports, structural reports, as built surveys and environmental audits. studies and reports which relate to the Premises to the extent such documentation is in Seller's possession. IfPurchaser elects to terminate this Agreement in accordance with its temrs, Purchaser agrees to return all information provided by Seller to Purchaser concerning the Premises and deliver to Seller, at no cost to Seller, copies of any and all tests, studies, reports, title reports and surveys performed by Purchaser with respect to the Premises, including without limitation, site and engineering studies, planning and zoning applications, and environmental studies, as additional consideration for Seller's execution of this Agreement. Such copies shall be delivered to Seller within ten (10) days of Seller's request. (c) Purchaser hereby represents and agrees that Purchaser shall fullyinspect the Premises on or before expiration of the Due Diligence Period and Purchaser hereby agrees that Purchaser shall purchase the Premises wholly ` AS IS"; it being agreed that except as specifically set forth or required by the terms and conditions of this Agreement, Seller has made no covenants, warranties or _ representations whatsoever pertaining to the Premises, the condition thereof, the value thereof, or any other matter with respect to the Premises. 12. Provisions with Respect to Closim" (a) At the Closing Seller shall deliver or cause to be delivered to Purchaser the following: (1) Deed. A special warranty deed, in recordable form, duly executed and Premises; d by Seller and in form reasonably satisfactory to Purchaser's attorney conveying title to the remises; (2) Certificates and Plans To the extent possessed by Seller, copies of all occupancy certificates, licenses, permits, authorizations and approvals required by law or issued by governmental authorities having jurisdiction over the Premises, and copies of all plans and surveys for the Premises; (3) FIRPTA Certification. An affidavit, in accordance with the Foreign Investment in Real Property Tax Act, stating that Seller is not a foreign person within the meaning of such Act and that Seller is not subject to the withholding requirements set forth in such Act; (4) Assigoment of Leases. An assignment of the Leases assigning to Purchaser all of Seller's right, title and interest in and to the Leases; (d) Assna ment of Agreements Affecting Real Estate. A quitclaim assignment of all of Seller's right, title and interest in and to the existing maintenance contracts, licenses, 9 equipment warranties, construction warranties or other agreements related to the operation, repair or maintenance of the Premises; (6) Assi?mment of Declaration RiPhts. An assignment of Seller's tights as Declarant under the Declaration, exclusive of Seller's retained rights with respect to Unit 2 of the Condominium. (7) Title Affidavits. Etc. Seller agrees that it shall execute any instruments agreements, affidavits and/or other documentation reasonably required by the title company insuring Purchaser's title in order to effectuate the transaction contemplated hereby, and the issuance of the title insurance policy; and (8) Resignations. Resignation of Seller and its employees as the officers and members of the executive board of the Condominium, except to the extent that Seller is entitled to appoint officers or members of the Executive Board as the owners of Unit 2. (b) At Closing, Purchaser shall deliver to Seller the following: , (i) Purchase Price. The Portion of the Plschase Price payable pursuant to paragraph 2. (ii) Assumption Agreement. At Closing, Seiler and Purchaser shall each execute, acknowledge and deliver an agreement(s) (the "Assumption Agreement") in which: (A) Purchaser shall assume and agree to be bound by all of the obligations of Seller which accrue after the Closing date: G1) as Landlord under the Leases (including, without limitation, the obligations to complete, make and/or pay for maintenance, repairs and replacements and to maintain and return any of the security deposits in accordance with the requirements of the Leases and applicable law; and (2) the Seller's obligations under the agreements affecting real estate which are to be assigned by Seller to Purchaser pursuant to subparagraphs 12(a)(4) and 12(a)(5) above. (B) Purchaser shall agree to Indemnify Seller with respect to all claims, liabilities, costs and expenses which may be asserted against Seller or which Seller may incur or suffer which arise out of or with respect to the Leases, the Premises, the Existing Loans or those of the agreements affecting real estate which are assigned by Seller to Purchaser pursuant to subparagraphs 12(a)(4) and 12(a)(5) above with respect to time periods from and after the Closing Date. Seller shall agree to indemnify Purchaser with respect to all claims, liabilities, costs and expenses now asserted or which may be asserted against Purchaser or which Purchaser may incur or suffer which arise out of or with respect to the Leases, the Premises, the Existing Loans or those of the agreements affecting real estate which are assigned by Seller to Purchaser pursuant to subparagraphs 12(a)(4) and 12(a)(5) above with respect to time periods prior to the Closing Date. 10 Aonortionments T-ansfer Taxes (a) Items to be Apportioned. (i) The following items shall be apportioned pro rata between Purchaser and Seller on a per diem basis as of the Closing Date: (A) real estate taxes on the Premises (on the basis of the actual fiscal years for which such taxes are assessed); (B) minimurn water and sewer rents (excluding, however, any water and sewer rents paid directly by anv tenants under the Leases based upon individual meters, if any, measuring the consumption of water by such tenants in their respective demised premises); (C) accrued but unpaid interest under the Existing Loans; (D) the sums payable to Seller as owner of the Premises pursuant to the Leases, agreements affecting real estate, the Declaration or other agreements affecting the Premises (collectively, the "Receivables"); and (E) any tax, insurance or other escrows maintained with the Existing Lenders pursuant to the Existing Loans. (ii) Any credit due to Purchaser pursuant to paragraph 13 shall be applied as a credit against the portion of the Purchase Price due at Closing, and any credit due to Seller pursuant to Article (a)(i) shall be paid by Purchaser to Seller at Closing as an addition to the Purchase Price. (b) "Pass Thru" Items. (i) The apportionment of amounts payable by each tenant under the Leases on account of real estate taxes and/or amounts payable by such tenants and/or owners and occupants of other Units in the Condominium on account of the costs of maintaining, owning and operating the property in the Condominluni under the Declaration ("Operating Cost Contribution") for the calendar year 2004, if applicable, (and the amounts due Purchaser and Seller, respectively under each of the Leases with respect thereto) shall be made and paid on or before the thirtieth day following the date on which the tenant or unit owner pays the Operating Cost Contribution due by it for the applicable calendar year pursuant to its respective Lease or the Declaration. Seller's portion of the Operating Cost Contribution for each applicable calendar year under each Lease shall be an amount which bears the same ratio to such Operating Cost Contribution for the calendar year as the number of days up to and including the Closing date in the applicable calendar year during which the Property was owned by Seller bears to 365; and Purchaser shall be entitled to the remaining portion. Purchaser shall cause all Operating Cost Contributions for the applicable calendar year during which the Property was owned by Seller to 11 be said tc Purchaser by ail tenants and Unit owners; and Purchaser shail divide and distribute the amounts so collected between Purchaser and Seller in accordance with the provisions hereof. (ii) At Closing, Seller and Purchaser shall agree upon an estimate of the amount which will be payable by Purchaser to Seller in accordance with the terms of subparagraph 1 3(b)(i) above and such estimated amount shall be paid by Purchaser to Seller at Closing. When the actual amount payable by Purchaser to Seiler pursuant to this paragraph 13(b)(ii) has been determined after the expiration of the calendar year in which closing occurs, if the estimated payment made to Seller at Closing is less than the actual amount payable to Seller, Purchaser shall pay the deficiency to Seller; and if the estimated amount paid to Seller at Closing exceeds the amount actually payable to Seller pursuant to this paragraph 13(b)(ii), Seller shall reimburse the excess to Purchaser. (c) Payments Received After Closing: Delinquencies. 0) (A) Promptly upon receipt after Closing, Seller shall deliver to Purchaser any payments received by Seller after Closing on account of Receivables which are applicable to periods after Closing. (B) Promptly upon receipt after Closing, Purchaser shall deliver to Seller any payments received by Purchaser after Closing on account of Receivables which are applicable to periods prior to Closing. (ii) If, at Closing, any tenants or Unit owners are in arrears in the payment of Receivables or other sums which were payable prior to Closing, all payments of such sums by such tenants or trait owners to Purchaser after Closing shall be deemed as being applicable, first, as against such arrearages to the extent df two (2) months, then as against current sums then due and, finally, as against any other such arrearages which existed as of Closing. (d) Post Closing Apportionments. If the apportionment of any advance of payments relating to operating expenses, or other payments received by Seller prior to the Closing date from a tenant under any of the Leases or a Unit owner under the Declaration on account of periods after the Closing date and on account of sums which are attributable to expenses incurred for periods of time after the Closing date, cannot be precisely determined at the time of Closing, Seller shall reasonably estimate the apportionment of such sums, and such estimated sums shall be apportioned at Closing pro rata between Purchaser and Seller on a per diem basis as of the Closing date. A post-Closing adjustment shall be made, if necessary, between Purchaser and Seller for such apportioned items within thirty (30) days after the sums can be precisely determined. (e) Unpaid Real Estate Tares. If, on the Closing date, bills for the real estate taxes imposed upon the Premises for the tax fiscal period in which Clos fig occurs have been issued but shall not have been paid, such real estate taxes shall be paid at Closing. If such bills shall not have been issued on the Closing date, the amount of the real estate taxes shall be reasonably ascertained based upon the then current assessment and the anticipated tax rate, and 12 the portions of such taxes to be borne by Purchaser and Seller shall be deposited with the Title Insurance Company to be disbursed by the Title Insurance Company promptly after the real estate tax bills have been issued, for the payment of such bills. If the actual taxes are greater than the amounts estimated, Seller and Purchaser shall each promptly pay to the Title Insurance Company its pro rata share of such excess. (f) Utilitv Meter Readings. Seller shall use reasonable efforts to obtain readings of the utility meters on the Premises (excluding however any meters measuring utilities consumed by an individual tenant if such tenant is obligated by its Lease to pay separately for the utilities consumed by it as measured by such meter) to a date no sooner than ten (10) days prior to the Closing date. At or prior to Closing, Seller shall pay all charges based upon such meter readings, reasonably adjusted to the Closing date. However, if after reasonable efforts Seller is unable to obtain readings of any such meters prior to Closing, Closing shall be completed without such readings and upon the obtaining thereof after Closing, Seller shall pay the charges incurred prior to Closing as reasonably determined by Seller and Purchaser based upon such readings. (g) Tenant Security Deposits. G) At Closing, Seller shall deliver or cause its agents to deliver to Purchaser, without consideration, a check or checks in the amount of all un-applied security deposits then held or owed by Seller as Landlord under the Leases. Purchaser shall, at Closing, deliver to Seller a letter in which Purchaser shall acknowledge receipt of the checks referred to in the preceding sentence. (ii) Purchaser agrees to Indemnify Seller of and from any and all loss and liability incurred after Closing resulting from a failure of Purchaser to return any security deposit (or interest thereon) which was paid by Seller to Purchaser at Closing. (h) Transfer Taxes. Seller and Purchaser shall each pay at Closing one-half ('/) of all Realty Transfer Taxes imposed upon the Deed and the conveyance of the Premises from Seller to Purchaser or to the Permitted Assignee. (i) Intentionally omitted. Q) Post Closing Adjustments. Except as expressly provided herein, any item which cannot be accurately pro rated as of the Closing date shall, at Closing, be pro rated on the basis of the parties' good faith estimates, utilizing bills and receipts therefor for the comparable period during the preceding year, and shall be re-pro-rated after Closing within thirty (30) days after precise information becomes available. In the event any errors or omissions in computing the apportionments under this paragraph 13 shall be discovered, the parties hereto shall promptly make adjusting payments to each other. 14. Limitation of Liability. If Purchaser defaults under this Agreement of Sale, the right of Seller to be paid the Deposit from the Purchaser's title insurance company shall be Seller' s sole and exclusive remedy, and Seller waives any right to recover the balance of 13 the Purchase Price, or any part thereof, and the right to pursue any other remedy permitted by law or in equity against Purchaser for any matter arising under this Agreement or otherwise. If Seller defaults under this Agreement, Purchaser shall either: (1) terminate this Agreement, whereupon the Deposit shall be returned to Purchaser, in which event neither party shall have any further obligation hereunder; or (2) seek specific performance of this Agreement. 15. Brokers. Seller and Purchaser represent to each other that neither party has dealt oath any broker in connection with this transaction other than KLNB, L LC ("KLNB") and Newmark Real Estate of New Jersey, LLC (`Newmark") and agree to indemnify, defend and hold each other harmless in the event of any breach of this representation. KLNB shall be paid a commission by Seller pursuant to a separate agreement and a portion of such commission shall be paid by KLNB to Newmark pursuant to a separate agreement between KLNB and Newmark. Purchaser acknowledges and agrees that any payments to Stewart Weston and/or Marcus & Millichap in connection with this transaction shall be the sole responsibility of Purchaser pursuant to a separate agreement with purchaser. 16. Assi nment Purchaser may not assign Purchaser's rights under this Agreement, without the prior written consent ofSeller, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Purchaser shall have the right to assign all, but not a portion, of its rights under this Agreement only to any entity under common control with the named Purchaser hereunder (" Pemutted Assignee"). Any such assignment, however, shall not release or relieve Purchaser of and from any liability or obligation under this Agreement, and Purchaser shall continue to be primarily liable under this Agreement. No such assignment or designation shall be effective, however, unless and until Purchaser shall have furnished to Seller an executed copy of the written Assignment and/or designation with an agreement by the assignee or designee thereunder to assume, perform and be responsible, jointly and severally with the Purchaser named herein, for the performance of all of the obligations of Purchaser under this Agreement. Seller shall have the right to rely in gwd faith on the genuineness and validity of the notice from Purchaser of an assignment and to convey the Premises to the assignee without liability to Purchaser or any other person, and Purchaser shall Indemnify Seller against any such liability in connection with such conveyance. 17. Notices. All notices and other communications to be given under this Agreement shall be in writing and shall be hand delivered or sent by reputable, overnight courier service, by registered or certified mail, return receipt requested, or by facsimile, addressed or sent as follows: If intended for Seller, GH Sinking Spring Associates, L.P. c/o Elysian Partners, L.P. 20 Erford Road, Suite 10 Lemoyne, PA 17043 Attention: Philip Markovitz 14 With a copy to: Elysian Partners, L.P. 20 Erford Road, Suite 10 Lemoyne, PA 17043 Attention: Alan P. Garubba, Generai Counsel If intended for Purchaser, MSB Property, LLC C/o DRC Investments, Inc. P.O. Box 2744-229 Huntington Beach, CA 92647 Attention: Dennis Capilouto All such notices or other communications shall be deemed to have been given on the date of delivery thereof if given by hand delivery or fax, or on the date deposited with the courier service or the United States Postal Service if given by ovemight courier service or United States mail, respectively. Notices by or to the parties may be given on their behalf by their respective attorneys. 18. Successors. This Agreement shall be binding upon and inure to the benefit of Seller and Purchaser and their respective successors and assigns. 19. Headings. The headings and captions herein inserted are for convenience of reference only and in no way define, describe or in-nit the scope or intent hereof or any of the provisions hereof. 20. Severabilitv. If anyprovision of this Agreement shall, for anyreason, be held invalid, illegal or unenforceable, such holding shall not affect the validity, legality or enforceability of the remaining provisions of the Agreement. 21. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania 22. Time is of the Essence. Time is of the essence of this Agreement. 23. No Recording. This Agreement shall not be recorded in the Ofnce of the Recorder of Deeds or any other office or place of public record. 24. COUnteroartS. This Agreement maybe signed in one ormore counterparts (or with counterpart signature pages) which, taken together, shall constitute a fully executed Agreement and shall be considered a single document. 25. Section 1031 Exchange. Purchaser may consummate the purchase of the Premises as part of a so-called like kind exchange (the "Exchange") pursuant to §1031 of the Internal 15 Revenue Code of 1986; as amended. Provided that (a) the Closine shall not be delayed by reason of the Exchange; (b) Purchaser shall effect the Exchange through an assig went of its rights and obligations wider this Agreement to a qualified iateZnediaty; and (c) Seller shall not incur an}, costs or expenses iu connection lvith the Exchange. Purchaser hereby agrees to cooperate with the Seller in effectuating Section 1031 Tax Fsce Exchange for all or part ofthe Premises upon request by Seller, provided fhat there is no additional cost to Purchaser and that the 1031 Exchange does not adversely impact Purchaser's rights under this Agreement. 26. lntemation Clause This Aaeement constitutes the entire understanding among the panics with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or aarcements, inducements or conditions, express or implied oral or,xrirten. Furthermore, this Agreement shall not be changed, tnod.LSeeL amended or altered unless such change, modification, amendment or alteration is in iNritiqg and duly executed by Seller and Purchaser. 1N ?Vr'NESS FVHEREOF, Seller and Purchaser have executed this Agreement as of the day and year first wnrien abode, WITH'ESS: Seller: G14 KNKING SPRING ASSOCIATES, L.F. By, GH Sinking Spring General Palmer Corporation By: Nan Tittc Purchaser: MSB PROPERTY, LLC Bc: r(?'?(-Berms CapilouFo Manager i6 WITNESS: E IT «A-1" Unit 1 All that certain unit designated as Unit Number 1, being a unit in the Declaration of Condominium of Sinking Spring Retail Center, a Condominium, located in South Heideiberg Township, Berks County, Pennsylvania, as designated in the Declaration of Condominium of Condominium of Sinking Spring Retail Center, among the Land Records of Berks County, Pennsylvania, dated the 12`h day of May, 1999 and recorded in Volume 3083, Page 2148. Amendment to Declaration of Condominium of Sinking Spring Retail Center, a Condominium dated October 19, 1999 and recorded in Volume 3153, Page 1554. Together with all right, title and interest, being the respective appurtenant 59.369% undivided interest of, in an to the Common Elements, as set forth in the aforesaid Declaration of Condominium. Unit 3 All that certain unit designated as Unit Number being a unit in the Declaration of Condominium of Sinking Spring Retail Center, a Condominium, located in South Heidelberg Township, Berks County, Pennsylvania, as designated in the Declaration of Condominium of Condominium of Sinking Spring Retail Center, among the Land Records of Berks County, Pennsylvania, dated the 12`h day of May, 1999 and recorded in Volume 3083, Page 2148. Amendment to Declaration of Condominium of Sinking Spring Retail Center, a Condominium dated October 19, 1999 and recorded in Volume 3153, Page 1554. Together with all right, title and interest, being the respective appurtenant 20.861 % undivided interest of, in an to the Common Elements, as set forth in the aforesaid Declaration of Condominium. Unit 4 All that certain unit designated as Unit Number 4, being a unit in the Declaration of Condominium of Sinking Spring Retail Center, a Condominium, located in South Heidelberg Township, Berks County, Pennsylvania, as designated in the Declaration of Condominium of Condominium of Sinking Spring Retail Center, among the Land Records of Berks County, Pennsylvania, dated the 12`h day of May, 1999 and recorded in Volume 3083, Page 2148. Amendment to Declaration of Condominium of Sinking Spring Retail Center, a Condominium dated October 19, 1999 and recorded in Volume 3153, Page 1554. Together with all right, title and interest, being the respective appurtenant 15.748% undivided interest of, in an to the Common Elements, as set forth in the aforesaid Declaration of Condominium. EXMIT IE XMIT"B" Permitted Exceptions Rights granted to Bell Telephone Co. in Miscellaneous Book 13Q Page 286. 2. R ghts granted to Pennsylvania Power and Light Co. in biscellaneous Book 312, Page 360. Release from Helen K. Fox et al. to Kathryn R. Huntzinger recorded in Record Book 2413, Page 29. 4. Assig went of Leases and Rents in Record Book 2931, Page 1139. 5. Subdivision Improvements Agreement in Record Book 2957, Page 2270. Deed of Easement from GH Sinking Spring Associates, L.P. to Weaver Enterprises in Record Book 2990, Page 2185. 7. Conditions in Deed of Easement from Weaver Enterprises to CH Sinking Spring Associates, L.P. in Record Book 2990, Page 2193. 8. Rights granted to Bell Atlantic-Pennsylvania, Inc. in Record Book 2989, Page 1834. 9. Conditions on plan of "Retail Development Sinking Spring Drive-In, Final Site Plan" recorded in Plan Book 228, Page 28. 10. Terms and Conditions of Memorandum of Lease to Redners Markets, Inc. as set forth in Record Book 3032, Page 1381. 11. Terms of Easement Agreement set forth in Record Book 3075, Page 1384. 12. Declaration of Sinking Spring Retail Center Condominium as set forth in Record Book 3083, Page 2148 and Amendment thereto as set forth in Record Book 3153, Page 1554. 13. Terms of Landlord's Consent and Waiver as set forth in Record Book 3099, Page 128. 14. Mortgage and Security Agreement dated May, 21, 1999 between GH Sinking Spring Associates, L.P and Conseco Mortgage Capital, Inc. 15. Assignment of Leases Containing a Present Assignment of Lease Proceeds dated May 21, 1999 between GH Sinking Spring Associates, L.P. and Conseco Mortgage Capital, Inc. 16. Assignment of Rents Containing a Present Assignment of Rent Proceeds dated May 21, 1999 between GH Sinking Spring Associates, L.P. and Conseco Mortgag- 17 Capital, Inc. Mortgage, Security Agreement, Fixture Filing and Assignment of Rents, Leases, Income and Profits dated November 15, 1999 between CH Sinking Sprung Associates, L.P. and Artesia Mortgage Capital Corporation. IS. Indemnification Agreement dated November 15, 1999 to Artesia Mortgage Capital Corporation. 19. Reciprocal Easement Agreement dated May 4, 1999 between GH Sinking Sp ng Associates, L.P. and TCH Investments, L.P. recorded in Volume 3075, Page ri as 1384 amended by Amendment to Reciprocal Easement Agreement dated October 22, 1999. EXPIIBIT "B-1" Existing Leases 1. Redner's Markets, Inc.; Ground Lease Agreement dated September 4, 1998. 2. Redner's Markets, Inc.; Lease dated December 18, 1997, as amended by Amendment No. 1 to Lease dated July 15, 1998 and further amended by Second Amendment to Lease dated May 18, 1999 3. Dijan Inc.; Lease Agreement dated March 2004. 4. FlexCheck of Pennsylvania, LLC, Lease Agreement dated June 23, 2003. 5. Commonwealth of Pennsylvania, acting through its Department of General Services, Agent for the Pennsylvania Liquor Control Board; Lease Agreement dated December 3, 2002. 6. Senior Taco, Inc.; Lease Agreement dated July 1, 2003. 7. Supercuts, Inc.; Lease Agreement dated May, 1998. 8. Blockbuster Inc.; Shopping Center Lease dated October 16, 1998. 9. Cun-Yi Zheng; Lease Agreement dated August 2, 1998. Agreements Affectiin Real Estate Proposal for power sweeping with Power Sweep Maintenance Inc. dated December 21, 2004. 2. Proposal for snow removal with SchlOuch Incorporated dated September 15, 2004. 3. Proposal for landscaping services with Heilner Landscaping Co., Inc. dated November 18, 2003. E? IT "C', Approved Plan for Development Parcel (see attached) LCD HEOaBC--C TG%NSvW LNE 77 i ?'II iilll T lil ;III I?lil I?III? a FENN AVENUE ( c) 22) ----- (? ` '7•` 7-7 t, s !;'! r IKI/ 13 12 f i1 . ? i ate{ ?...i ?>? 3 • -?F -'? 3Z-'?? !?`,} :?`°'?.;'?.'?; PCB ? _ -- r {3P 7 6 7 - `-" SINKING SFRING MARKE MASTER T `?N ^A MT FL A SOU-- 7-.- -=E -Y/N-Si EXHIBIT B 01/29/2005 15:28 562-4yt-2111 JRN-29-2005 15:13 ? '.L? 1 Imo/ ll it RT N E RS L.P. YL4,)ETRST CLASS MAIL & TELECOPMR Mr. Stewart Weston Marcus & Millichap One World Trade Center, Suite 1900 Long Beach, CA 90831 J I CAHK i 1 WGJ I UY .....? ,.- ?iJ ???-? P 02102 ?_ 20 ErforJ Road • quite 10 • Lemoyne, PA 170- P'a: (717) 303-1800 Fax: (717) 730-0500 January 26, 2005 Direm Dial (717) 303-1 SONS02 RE: Agreement of Sale dated January 10, 2005 (the "Agreement") between GH Sinking Spring Associates, L.P. ("Seller") and MSB Property, LLC C'Purchaser") for Sinking Spring Plaza, South Heidelberg Twp., PA Dear Stewart: As we discussed, this letter shall confirm Purchaser and Seller's agreement to extend the Due Diligence Period pursuant to Paragraph 1 I of the above referenced Agreement to 5:00 p.m. (Eastern) on Friday, February 11, 2005. Kindly arrange for Purchaser to acknowledge its agreement to the foregoing by signing and returning the enclosed copy of this letter via telecopier with the original to follow in the envelope enclosed for your convenience. If you have any questions concerning the foregoing, please call me. Very truly yours, Acknowledged Agreement to Extend the Due D*Ty, ebrvary 10. 2005: MSB B• N Title; APG: crr cc: David Greenman, Esquirc (via telecopier) Philip Markovitz GH SIN NG SPRING ASSOCIATES. L.P. n , Garubba General Counsel Date: S 2005 FALagohC0 mspondence-0SlWcsion-ExiensianoMueDiI genre-Ib TOTAL P.02 EXHIBIT C MAY-le-2005 16:02 'L I. u7 LE-11N ARTNERS L.P. February 11, 2005 VIA FIRST CLASS MAIL & TELECOPIER David Greenman, Esquire Enterprise Counsel Group 13800 Von Karmon Avenue Suite 100 Irvine, CA 92612 RE: Agreement of Sale dated January 10, 2005 (the "Agreement") between GH Sinking Spring Associates, L.P. ("Seller") and NISB Property, LLC ("Purchaser") for Sinking Spring Plaza, South Heidelberg Twp., PA Dear David: This letter shall confirm Purchaser and Seller's agreement to extend the Due Diligence Period pursuant to Paragraph 11 of the above-referenced Ageemenr to 5:UU p.m (Eastern Standard) on 'Monday. February 14, 2005. Kindly arrange for Purchaser to acknowledge its agreement to the foregoing by signing and returning the enclosed copy of this letter via telecopier with the original to follow in the envelope enclosed for your convenience. If you have any questions concerning the foregoing, please call me. Very truly yours, GH SINKING SPRING ASSOCIATES. L.P. i -Alan P. Garubba General Counsel P.02/32 20 Eriord Road ° Suite 10 ' Lemoyne, PA 17043 P6: (717) 303-1800 Pax: (717) 730-0500 Direct Dial (717) 303-1800402 .4cknowledged Agreement to Extend the Due Diligence Period to Febmarv 14. 2005: MSB PROPERTY. LLC By: _ Name: Title: Date: 2005 APG: crr cc: Philip Markovitz TOTAL P.02 MAY-18-2005 15:45 P.02 EXHIBIT D C:\Documents and Settings\agarubba\Local Settings\Temp\SinkingspnngMSB.wpdMSBProperry,Word Amendment to Agreement of Sale THIS AMENDMENT modifies a certain Agreement of Sale dated January 10, 2005 (as amended, the "Agreement") by and between GH SINKING SPRING ASSOCIATES, LP. ("Seller") and MSB PROPERTY, LLC ("Purchaser") in connection with the sale of Units 1, 3 and 4 of Sinking Spring Retail Center, a Condominium, located in South Heidelberg Township, Berks County, Pennsylvania (as more particularly described in the Agreement, the "Property"). NOW, THEREFORE, in consideration of $1.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to modify the Agreement as follows: 1. The Due Diligence Period, as defined in Paragraph 11 of the Agreement is hereby extended and shall expire at 5:00 p.m. Eastern Standard Time on February 21, 2005. 2. Paragraph 4(a) of the Agreement is hereby deleted in its entirety and the following language is substituted in its place and stead: "Closing ("Closing") hereunder shall take place at Purchaser's Title Company or at such other location as the parties hereto shall mutually agree upon on or before April 8, 2005. 3. The parties hereto ratify and confirm all other terms and provisions of the Agreement not inconsistent with this Amendment and to be in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment this day of February, 2005. SELLER: GH SINKING SPRING ASSOCIATES, LP By: GH Sinking Spring General Partner Corp. PURCHASER: MSB PROPERTY, LLC B ------------------------ Nyame: Tide: Name: By. Tide: EXHIBIT E Page i of 1 Alan Garubba From: Weston, Stewart [SWeston@marcusmillichap.com] Sent: Tuesday, February 22, 2005 4:58 PM To: Alan Garubba Cc: David Greenman; Ensbury, Martin Subject: Sinking Spring Alan Attached is an outline of the terms under which we will close. Stewart I. Weston Marcus & Millichap One World Trade Center Suite 1900 Long Beach, CA 90831-1900 Tel: 562 436 5800, Ext. 304 Fax: 562 495 2111 ' IQ/nnn< SINKING SPRING February 22, 2005 Alan We are prepared to purchase the subject property, subject to the following: 1. Seller to credit buyer $195,000 for parking lot repairs, which is reflected in the net to seller figures below. 2. Seller to credit buyer $200,000 for expense adjustments, which is reflected in the net to seller figures below. (Expense discrepancy for Insurance, Maintenance, Repairs, and Snow Removal & Property Taxes) based on actual vs. projections 3. Seller to hold back $215,000 in Escrow as described below 4. Closing shall occur with in 30 days from final loan assumption approval & New loan approval 5. Buyer's deposit shall be refundable until loans are approved, at which time; the buyer's deposit will become non refundable 6. CAD drawings need to be received before the close of escrow Current purchase price Plus + Total Acquisition cost to buyer Contract 1 - Redners Market Minus (-) Net to Seller Contract 2 - Land - Net to Seller Contract 3 - shop, Arby's & redners Minus (-) Net to Seller Total net to seller $7,525,000 $ 315,000 prepay fee & broker fee $7,840,000 $4,522,000 $ 359.000 portion of pre pay & broker fee & parking lot & credit $4,163,000 $ 45,000 all cash to seller $3,272,500 $ 300.500 portion of pre pay & broker fee & parking lot & credit $2,972,000 $7,180,000 from $7,525,000 "Blockbuster is paying nearly $5.001 square foot more then the market and more then the last four leases executed on site. Therefore we are asking the seller for the following Seller to hold back $215,000 from sale proceeds in an escrow account until 9/1/05 or the date Blockbuster chooses to exercise their option to vacate or renew their lease. In the event blockbuster notifies owner in writing of the intent to move from the premises upon the lease expiration date, all funds held in escrow shall be paid to buyer. In the event Blockbuster renews their lease at the current rent level then the funds held in escrow shall be returned to the seller. In the event Blockbuster renegotiates their lease to market, the funds held in escrow shall be paid to buyer based on the current rent minus the new rent level and the difference should have a cap rate of 9% used to calculate the amount of the credit Example: Current rent is $17.28 x 4800 sq It = $82,944 New rent rate is $15.00 x 4800 sq It = $72,000 Difference in income $10,944 @ 9% cap rate = $121,600 I believe we have conceptual agreement upon the foregoing; upon confirmation of the same from you, I will have our counsel prepare a short amendment incorporating the same. If we do not have a conceptual agreement upon the foregoing, and if Seller is not willing to again extend the Buyer's due diligence/feasibility period pending ironing out any further details, this shall constitute Buyer's termination of the Agreement and demand for the prompt return of Buyer's earnest money deposit. EXHIBIT F .?J-,T"YS IAN ARTNE RS L.P. VIA TELECOPIER & CERTIFIED MAIL MSB Property LLC C/o DRC Investments, Inc. P.O. Box 2744-229 Huntington Beach, CA 92647 Attention: Dennis Capilouto 20 Er{ord Road • Suite 10 • Lemoyne, PA 17043 Ph: (717) 303-1800 Fax: (717) 730-0500 February 24, 2005 Direct Dial (717) 303-1800x802 RE: Agreement of Sale dated January 10, 2005 (the "Agreement") between GE Sinking Spring Associates, L.P. ("Seller") and MSB Property, LLC ("Purchaser") for Units 1, 3 and 4 Condominium of Sinking Spring Retail Center, a Condominium, South Heidelberg Twp., PA (the "Property") Dear Mr. Capilouto: After 5 p.m. on Tuesday, February 22, 2005, I received a memorandum via telecopier from Stewart Weston, writing on behalf of Purchaser. In his memorandum, Mr. Weston proposed several material changes to key economic terms of the Agreement. The requested changes included, among other things, reducing the Purchase Price by 5395,000 and deferring and conditioning payment of 5215,000 of the Purchase Price until and upon the exercise by Blockbuster of its renewal option under its lease for the Property. The memorandum goes on to state that Mr. Weston believes he had a "conceptual agreement" on the requested changes. Given that the memorandum is the first instance in which most of these demands were communicated to Seller, I have no idea upon what facts Mr. Weston bases his belief. Purchaser has not and will not agree to the extraordinary last minute demands to depart from the terms of the Agreement. The memorandum further states that, if Seller is not willing to agree to the requested chances or to extend the Due Diligence Period, the memorandum is to "constitute Buyer's termination of the Agreement and demand for the prompt return of Buyer's earnest money deposit." Pursuant to paragraph 11(a) of the Agreement, the Due Diligence Period was to originally expire on January 30, 2005. For no consideration, Seller granted Purchaser's request to extend the Due Diligence Period. By letter agreement dated January 26, 2005, the Due Diligence Period was extended until 5:00 p.m. (Eastern) on Friday, February 11, 2005. In the afternoon on February 11, 2005, Purchaser's counsel, David Greenman, requested a short term extension to enable Purchaser to review and respond to my email sent to David Greenman at 11:29 a.m. Page -2- Mr. Dennis Capilouto February 24, 2005 (Eastern) that morning. Seller granted Mr. Greenman's request and sent a letter confirming its agreement to extend the Due Diligence Period until 5:00 p.m. (Eastern Standard) on Monday, February 14, 2005; however, this letter agreement was never signed and returned to Seller by Purchaser as instructed in the letter. At 5:45 p.m on February 14, 2005, Mr. Greenman sent me a request via email for me to prepare an extension letter to reflect an extension proposal set forth in my email to Mr. Greenman on February 11, 2005. I prepared a draft of an Amendment to Agreement of Sale which, if executed by Seller and Purchaser, would have modified the Agreement by extending the Due Diligence Period to 5:00 p.m. Eastern Standard Time on February 21, 2005. Other than a request from Mr. Greenman to resend the amendment due to technical difficulties with the version that I originally sent, Seller received no response to the draft amendment. Although the document was resent within an hour from Mr. Greenman's request, this document was never executed and delivered by Purchaser, nor was it executed by Seller. Paragraph 26 of the-Agreement clearly states that the Agreement-"shall not be changed, modified, amended or altered unless such change, modification, amendment or alteration is in writing and duly executed by Seller and Purchaser." Accordingly, the Agreement was not modified beyond the letter agreement dated February 11, 2005 and the Due Diligence Period expired at 5:00 p.m. (Eastern Standard) on February 14, 2005 (time being of the essence pursuant to paragraph 22 of the Agreement). Purchaser did not provide Seller with written notice of termination within the -Due Diligence Period and, pursuant to the terms of paragraph 1 I (a) of the Agreement, the rights of Purchaser under paragraph 11(a) of the Agreement were deemed waived. Paragraph 3(b) of the Agreement states the following: After the expiration of the Due Diligence Period, the Deposit shall be non- refundable to Purchaser, except for termination resulting from casualty pursuant to paragraph 6, Seller's default or Seller's inability to satisfy the conditions set forth in paragraph 8(a) below or to convey title to the Property in the condition required by paragraph 5 below; For the foregoing reasons, Purchaser is not entitled to the return of the Deposit and Mr. Weston's demand for return of the Deposit is not in accordance with the terms of the Agreement. By copy of this letter, I am instructing the Escrow Agent not to deliver the Deposit to Purchaser. Seller has remained willing and able to honor its obligations under the Agreement. Purchaser's termination of the Agreement constitutes a default of Purchaser's obligations under the Agreement entitling Seller to be paid the Deposit as liquidated damages in accordance with paragraph 14 of the Agreement. Unless it is Purchaser's position that it has not terminated the -?grceraent, demand is hereby made on Purchaser to provide itevin 3arrer at ?o, ? m Page -3- Mr. Dennis Capilouto February 24, 2005 written instructions to disburse the Deposit to Seiler. Pursuant to paragraph I I (b) of the Agreement, Purchaser must also return all information provided by Seller to Purchaser concerning the Property and deliver to Seller, at no cost to Seller, copies of any and all tests, studies, reports, title reports and surveys performed by Purchaser with respect to the Popery, including without limitation, site and engineering studies, planning and zoning applications, and environmental studies, within ten (10) days of the daze of this letter. This letter is written without prejudice to the rights of Seller and nothing contained herein is intended to waive or modify any rights or remedies available under the Agreement, at law or in equity. Very truly yours, - GH SINKING SPRING ASSOCIATES, L.P. P. AWb6a Genetal Counsel APO: apg cc: David Greenman, Esquire (via telecopier and Certified Mail) Stewart Weston (via telecopier) Mr. Kevin Barrett (via telecopier) Philip Markovitz F: \ L egal\Cu ores pond ence-05\cap i to uto mtm inati u nrespo nse-;tr.wpd EXHIBIT G ECG ENTERPRISE COUNSEL GROUP A Law Corporation February 25, 2005 VIA FAX & FEDERAL EXPRESS GH Sinking Springs Associates, L.P. c/o Elysian Partners, L.P. 20 Erford Road, Suite 10 Lemoyne, PA 17043 Elysian Partners, L.P. 20 Erford Road, Suite 10 Lemoyne, PA 17043 Attn: Alan P. Garubba, General Counsel RE: Agreement of Sale (the "Agreement") by and between GH Sinking Spring Associates, L.P. ("Seller") and MSB Property LLC ("Purchaser") Dear Mr. Garubba: David W. Greenman A Protaisionai Corporation State Ear No. 153394 I am writing as counsel to and on behalf of Purchaser in connection with the Agreement and your February 24, 2005 letter to Purchaser regarding the same. Although I have not been able to yet carefully review the file or meet with Purchaser regarding your letter, you are hereby advised that Purchaser disputes your version of the facts as set forth in your letter. Purchaser did execute and deliver to Seller the Amendment that you referred to on page 2 of your letter, and Purchaser also timely terminated the Agreement pursuant to that Amendment. Purchaser is hopeful that Purchaser and Seller will be able to resolve this matter amicably. Purchaser reiterates that it timely terminated the Agreement and accordingly its Deposit should be returned to it. By copy of this letter to KLNB, LLC, Purchaser hereby demands KLNB, LLC to promptly deliver Purchaser's deposit to Purchaser. cc: Stewart Weston cc: KNLB, LLC 100 West Road, Suite 505 Baltimore, Maryland 21204 Attn: Kevin Barrett Yours very truly, David W. Greenman ` "3800 Von Karman • Suite 100 • Irvine, California 92612 ° Phone 949-224-0335 • Facsimile 949-224-0339 EXHIBIT H MAY-10-2005 12:25 LAW OFFICES f laree Linwood Pcafe=*yw roza :021 New Read . nwood, NJ 08221 I-el (609) 6016030 (,,x(609) 601-6050 E1ZEN FINEBURG & McCARTHY A PROFESSIONAL CORPORATION TWO COMMERCE SQUARE 34TH FLOOR 2001 MARKET STREET Pa ADeLPHLA, PENNSYLVANIA 19103 TEL (215)_751-9666 FAX (2 1 5) 751-93 1 0 website: www.efm.net March 31, 2005 STRICTLY PERSONAL & CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED COMMUNICATION Kevin Barrett K:LNB, LLC 100 West Road Suite 505 Baltimore, MD 21204 Re: P. 23/23 The Home 3,,U o , Sure 390 South Washing=, 20005 Tel (202) 347-1917 Fax (202) 3474344 3009,00.000 Dear Mr. Barrett: we write on behalf of our client, MSB Property, LLC, with regard to the sum of $150,000 plus interest (the "Escrow Amounf,) you are holding in escrow in connection with the .Agreement. Please be advised that MSB Property, LLC disputes the Seller's claim to hold the Property, LLC is not entitled to the return of the Escrow Amount. We instruct you Escrow Amount in escrow until this dispute is resolved. If you have any questions, please contact tie. Since/r?ely,/ Paul J. Cianci cc: Mr. Stewart Weston Alan P. Garnbba, Esquire (via fax to (717) 730-0500) TOTAL P.03 MPY-10-2005 12:09 P.03 4 . .. EXHIBIT I MAY-12-2005 12:25 "C: Y 511311 AR.TNE R.S . P- L.P. P. 32/03 P. 20 Erford Road • Suite 10 • Lemoyne, PA 17043 Ph: (717) 303-1800 Fax: (717) 730-0500 April 5, 2005 VTA TELECOPIER and FIRST CLASS MAIL Direct Dial (717) 303-1800x802 Paul J. Cianci, Esq. Eizen Fineburg & McCarthy Two Commerce Square 2001 Market Street, Floor 34 Philadelphia, PA 19103 RE; Agreement of Sale dated January 10, 2005 (the "Agreement") between GH Sinking Spring Associates, L.P. ("Seller") and MSB Property, LLC ("Purchaser ; for Unis 1, 3 and 4 Condominium of Sinking Spring Retail Center, a Condominium, South Heidelberg Twp., PA (the "Property") Dear Mr. Cianci: I received the copy of your letter to Kevin Barrett, escrow agent under the above-captioned Agreement, stating that it is your client's position that Purchaser is disputing Seller's entitlement to receive the Deposit held by KLNB, LLC, under the Agreement. On February 25, 2005, I received a letter from David Greenman similarly stating your client's position; however, neither your letter nor Mr. Greenman's letter provides any documentation or explanation as to the basis for your client's dispute. In a letter to your client on February 24, 2005, I provided a detailed explanation as to why Seller is entitled to the Deposit under the Agreement. In an effort to understand the basis of your client's claim, I am writing to request a detailed explanation of your client's position accompanied by copies of supporrin-a documentation upon which it is based This letter is written without prejudice to the rights of Seller and nothing contained herein is intended to waive or modify any rights or remedies available to Seller under the Agreement, at law or in equity. Very truly yours, GH SINKING SPRING ASSOCIATES, L.P. Alan P. Garubba General Counsel APG: i . sk cc: Kevin Barrett (via telecopier) Philio Markovitz _::1iadRCSDOgYC1CMI.:CjpRCL hl$ai?-ODCCY-iiNUD'1p0Ch0-IL :?.:. MAY-10-2005 12:06 P.02 I fff <..WW?J... J IV??) l r1604. Ll? 1 V (\V n T I i7 IT 1 !1 . N O t_ C' X 1 W O N n 0 T1 Fn =p T m too EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No.: 82717 GH SINKING SPRING ASSOCIATES, L.P. Attorney for Defendant, MSB Property, LLC COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA V. MSB PROPERTY, LLC and KLNB,LLC NO. 05-2884 CIVIL TERM ACTION FOR DECLARATORY JUDGMENT Defendants. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant MSB Property, LLC only in the above matter. Respectfully submitted, EIZEN FINEBURG & McCARTHY, P.C. Date: ?1 aooS By: t4X PAUL J. C CI, ESQUIRE Attorney for Defendant, MSB Property, LLC EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No.: 82717 GH SINKING SPRING ASSOCIATES, L.P. Attorney for Defendant, MSB Property, LLC COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA V. MSB PROPERTY, LLC and KLNB,LLC NO. 05-2884 CIVIL TERM ACTION FOR DECLARATORY JUDGMENT Defendants. CERTIFICATE OF SERVICE I, Paul J. Cianci, hereby certify that on the date set forth below, I served on the below listed counsel via first class mail a true and correct copy of the foregoing Notice of Appearance. Andrew T. Kravitz, Esquire Law Offices of Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 Date: 21 ZaasF? PAUL J. C CI, ESQUIRE Attorney for Defendant, MSB Property, LLC ?? h} ?+? ? 1 cn "il C-_ T7 r.? ? ' ? at , c.i ;", c-? ?, EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No.: 82717 Attorney for Defendant, MSB Property, LLC GH SINKING SPRING ASSOCIATES, L.P. Plaintiff, V. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 05-2884 CIVIL TERM MSB PROPERTY, LLC and KLNB,LLC Defendants. ANSWER WITH NEW MATTER AND COUNTERCLAIM OF DEFENDANT MSB PROPERTY LLC MSB Property, LLC ("MSB"), through counsel, hereby respectfully submits the following Answer, New Matter and Counterclaim: Admitted. 2. Admitted. MSB admits that KLNB, LLC is a defendant in this matter; that it has an address of 100 West Road, Suite 505, Baltimore, Maryland; and that it is an escrow agent relevant to this matter. The remaining allegations in this paragraph do not require a response. 4. MSB admits that on or about January 10, 2005, it entered into an Agreement of Sale ("Agreement") with Plaintiff. The Agreement speaks for itself. MSB specifically denies any characterization by Plaintiff of the Agreement. MSB admits that it deposited a sum of money with KLNB, LLC pursuant to the Agreement. MSB specifically denies that it deposited One Hundred Fifty Thousand Dollars ($150,000) with KLNB, LLC. The amount deposited by MSB with KLNB, LLC and all interest accrued thereon shall be collectively referred to herein as the "Deposit". Upon reasonable investigation, MSB is without knowledge and information sufficient to form a belief as to the truth of the remaining averments of this paragraph. 6. Upon information and belief, admitted. MSB admits that pursuant to the Agreement it had a period of time to evaluate the property. The Agreement speaks for itself. MSB specifically denies any characterization by Plaintiff of the Agreement. The due diligence period defined in the Agreement at paragraph 11(a) plus all extensions shall be referred to herein as the "Due Diligence Period". 8. The Agreement speaks for itself. MSB specifically denies any characterization by Plaintiff of the Agreement. By way of further answer, allegations of this paragraph contain conclusions of law to which no response is required. 9. The Agreement speaks for itself. MSB specifically denies any characterization by Plaintiff of the Agreement. 10. The Agreement speaks for itself. MSB specifically denies any characterization by Plaintiff of the Agreement. 11. The letter agreement to which Plaintiff refers speaks for itself. MSB specifically denies any characterization by Plaintiff of the letter agreement. 12. MSB admits that on February 11, 2005, it requested an extension of the Due Diligence Period to February 14, 2005. Upon reasonable investigation, MSB is without knowledge and information sufficient to form a belief as to the truth of the averment that Plaintiff sent MSB a written proposed letter agreement for MSB to execute that would have extended the Due Diligence Period until 5:00 p.m. (EST) on February 14, 2005. The remaining allegations in this paragraph do not require a response. By way of further answer, MSB and Plaintiff agreed orally and/or in writing to extend the Due Diligence Period until until 5:00 p.m. (EST) on February 14, 2005. 13. Admitted that MSB requested an extension of the Due Diligence Period and the closing date. Upon reasonable investigation, MSB is without knowledge and information sufficient to form a belief as to the truth of the remaining averments of this paragraph. By way of further answer, allegations of this paragraph contain conclusions of law to which no response is required. 14. Upon reasonable investigation, MSB is without knowledge and information sufficient to form a belief as to the truth of the averments of this paragraph. By way of further answer, allegations of this paragraph contain conclusions of law to which no response is required. Nevertheless, as set forth herein, the parties agreed to extend the Due Diligence Period until February 22, 2005. 15. Plaintiff admits that MSB sent a letter to Plaintiff on February 22, 2005. Upon reasonable investigation, MSB is without knowledge and information sufficient to form a belief as to the exact time of day the letter was actually sent to Plaintiff. As to the remaining allegations of this paragraph, MSB's letter speaks for itself. MSB specifically denies any characterization by Plaintiff of the letter. 16. The allegations of this paragraph contain conclusions of law to which no response is required. Nevertheless, as set forth herein, the parties agreed to extend the Due Diligence Period until February 22, 2005. 17. The allegations of this paragraph contain conclusions of law to which no response is required. Nevertheless, as set forth herein, the parties agreed to extend the Due Diligence Period until February 22, 2005. 18. The allegations of this paragraph contain conclusions of law to which no response is required. Nevertheless, as set forth herein, the parties agreed to extend the Due Diligence Period until February 22, 2005. 19. MSB admits that it received a letter from Plaintiff dated February 24, 2005. That letter speaks for itself, and MSB specifically denies any characterization by Plaintiff of the letter. 20. MSB admits that Mr. Greenman sent a letter to Plaintiff dated February 25, 2005. Mr. Greenman's letter speaks for itself. MSB specifically denies any characterization by Plaintiff of the letter. 21. MSB admits that Mr. Cianci sent a letter to KLNB, LLC dated March 31, 2005. Mr. Cianci's letter speaks for itself. MSB specifically denies any characterization by Plaintiff of the letter. 22. MSB admits that Plaintiff sent a letter to Mr. Cianci dated April 5, 2005. Plaintiff's letter speaks for itself. MSB specifically denies any characterization by Plaintiff of the letter. 23. Admitted. 24. No response is required. By way of further answer, MSB specifically denies that Plaintiff is entitled to the Deposit or any portion of it. WHEREFORE, MSB respectfully requests that this Court enter judgment declaring that the Deposit held by Defendant KLNB, LLC shall be paid to MSB, and award such further relief as the Court finds proper. NEW MATTER 25. MSB incorporates the above paragraphs by reference. 26. Plaintiff's Complaint fails to state a claim upon which relief may be granted. 27. Plaintiff has failed to mitigate its damages, if any. 28. MSB raises as a defense the doctrines of estoppel and/or waiver. 29. MSB raises as a defense the doctrine of unclean hands. 30. Plaintiff's claim is barred for want of damages. 31. MSB reserves the right to assert at the time of trial any and all affirmative defenses revealed through discovery. 32. From February 11, 2005 through February 24, 2005, Plaintiff conducted itself as though the Due Diligence Period was extended to February 22, 2005, although Plaintiff alleges it did not then possess a written document signed by the parties amending the Agreement to provide that the expiration of the Due Diligence Period would occur on February 21, 2005 rather than on February 11, 2005. 33. Plaintiff, through its silence on the telephone with MSB's agent, Stewart Weston ("Mr. Weston") on February 21, 2005 and its failure to respond to Mr. Weston's email of the same date, intended for MSB to rely to its detriment on Plaintiff s silence with regard to the expiration of the Due Diligence Period being February 22, 2005, and MSB did so rely. 34. MSB substantially performed all its obligations under the Agreement. 35. MSB performed all its material obligations under the Agreement, or it substantially performed all its material obligations under the Agreement. WHEREFORE, MSB respectfully requests that this Court enter judgment declaring that the Deposit held by Defendant KLNB, LLC shall be paid to MSB, and award such further relief as the Court finds proper. COUNTERCLAIM OF DEFENDANT, MSB PROPERTY LLC COUNTI-DECLARATORYJUDGMENT 36. MSB incorporates the above paragraphs by reference. 37. On or about January 10, 2005, MSB and Plaintiff entered into the Agreement, which provides, in part, that the Due Diligence Period would expire on January 30, 2005. 38. MSB and Plaintiff agreed to extend the expiration of the Due Diligence Period to February 11, 2005. 39. On February 10, 2005, MSB's counsel requested that the expiration of the Due Diligence Period be extended to February 21, 2005 and that the closing date be extended to no later than May 11, 2005. 40. On February 11, 2005, Plaintiff agreed to extend the expiration of the Due Diligence Period to February 21, 2005 and the closing date to March 23, 2005. 41. On February 15, 2005, Plaintiff sent an email dated February 15, 2005 to MSB's counsel indicating that attached to the email was an Amendment to the Agreement extending the expiration of the Due Diligence Period to February 21, 2005 and the outside date for closing to March 23, 2005. MSB was not able to open and view the document attached to the email. 42. On February 21, 2005, MSB had not received certain due diligence items it had requested from Plaintiff and which Plaintiff was obligated to provide the MSB pursuant to the Agreement. 6 43. On February 21, 2005, Mr. Weston spoke with Plaintiff s General Counsel, Alan Garubba ("Mr. Garubba"), on the telephone. During that conversation, Mr. Weston stated that since February 21, 2005 was a holiday MSB had until February 22, 2005 to terminate the Agreement and obtain a refund of the Deposit. Mr. Garubba never disagreed with Mr. Weston's statement. 44. Also on February 21, 2005, Mr. Weston confirmed, in an email to Mr. Garubba (the customary mode of communication between the parties), that they spoke on the telephone that day and that MSB's last day to terminate the Agreement was February 22, 2005 rather than February 21, 2005. Mr. Garubba did not respond in any way to Mr. Weston's email. 45. On February 22, 2005, while MSB still awaited Plaintiff s responses to certain of its outstanding due diligence requests, Mr. Weston sent a letter to Mr. Garubba dated February 22, 2005, which requested certain modifications to the Agreement. The letter provides, in part, that if Plaintiff did not accept the requested modifications that it could consider the Agreement terminated and that the Deposit should be returned to MSB. 46. In a letter to MSB dated February 24, 2005, Plaintiff instructed KLNB, LLC not to release the Deposit to MSB. 47. Ms. Kathy McGee, representative of KLNB, LLC, advised MSB's counsel on August 1, 2005 that KLNB, LLC received One Hundred Thousand Dollars ($100,000) from MSB to be held in escrow and that such funds plus interest are held in escrow by KLNB, LLC at present. 48. MSB and Plaintiff agreed in writing and/or orally that the Agreement should be amended such that the expiration of the Due Diligence Period would occur on February 22, 2005. 49. On February 15, 2005, Plaintiff sent a document to MSB to memorialize the written and/or oral agreement they made on February 11, 2005 to extend the expiration of the Due Diligence Period from February 11, 2005 to February 21, 2005. At that time, Plaintiff was allegedly not in possession of a written document signed by the parties amending the Agreement and extending the expiration of the Due Diligence Period beyond February 11, 2005. 50. From February 11, 2005 through February 24, 2005, Plaintiff conducted itself as though the Due Diligence Period was extended to February 22, 2005, although Plaintiff alleges it did not then possess a written document signed by the parties amending the Agreement to provide that the expiration of the Due Diligence Period would occur on February 22, 2005 rather than on February 11, 2005. 51. Plaintiff s failure to insist that it receive a written document signed by the parties indicating that the expiration date of the Due Diligence Period was extended by the parties constituted a waiver of the requirement in the Agreement that amendments to the Agreement must be made in writing and signed by the parties to the Agreement. 52. Plaintiff, through its silence on the telephone with Mr. Weston on February 21, 2005 and its failure to respond to Mr. Weston's email of the same date, intended MSB to rely to its detriment on Plaintiff s silence with regard to the expiration of the Due Diligence Period being February 22, 2005, and MSB did so rely. 53. Because of Plaintiffs refusal to consent to KLNB, LLC's release of the Deposit to MSB, MSB has been deprived of the Deposit, to which it is legally entitled. WHEREFORE, MSB respectfully requests that this Court enter judgment declaring that the Deposit held by Defendant KLNB, LLC shall be paid to MSB, and award such further relief as the Court finds proper. COUNT II - UNJUST ENRICHMENT 54. MSB incorporates the above paragraphs by reference. 55. MSB had a reasonable expectation of receiving and is entitled to receive the Deposit provided pursuant to the Agreement. 56. If the Deposit is paid to Plaintiff, Plaintiff will be unjustly enriched at the expense of MSB. 57. MSB has no adequate remedy at law and justice may only be served by compelling KLNB, LLC to pay the Deposit to MSB. WHEREFORE, in the alternative to the relief requested in Count I, MSB respectfully requests that this Court enter judgment declaring that the Deposit held by Defendant KLNB, LLC shall be paid to MSB, and award such further relief as the Court finds proper. Respectfully submitted, EIZEN FINEBURG & McCARTHY, P.C. Date: u?r 05, Zoos By: 6'`e---- PAUL J. C CI, ESQUIRE Attorney for Defendant, MSB Property, LLC EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No.: 82717 GH SINKING SPRING ASSOCIATES, L.P. V. Attorney for Defendant, MSB Property, LLC COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA MSB PROPERTY, LLC and KLNB,LLC Defendants. NO.05-2884 CIVIL TERM ANSWER, NEW MATTER AND COUNTERCLAIM CERTIFICATE OF SERVICE I, Paul J. Cianci, hereby certify that on the date set forth below, I served on the below listed counsel via certified mail (return receipt requested) a true and correct copy of the foregoing Answer, New Matter and Counterclaim. Andrew T. Kravitz, Esquire Law Offices of Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 Date: 63 7?os PAUL J. CI, ESQUIRE Attorney for Defendant, MSB Property, LLC EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No.: 82717 GH SINKING SPRING ASSOCIATES, L.P. V. MSB PROPERTY, LLC and KLNB,LLC Attorney for Defendant, MSB Property, LLC COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA Defendants. NO. 05-2884 CIVIL TERM NOTICE TO PLEAD TO: Andrew T. Kravitz, Esquire 219 Pine Street Harrisburg, PA 17101 YOU ARE HEREBY NOTIFIED to file a written response to the within New Matter and Counterclaim of Defendant, MSB Property, LLC within twenty (20) days from service hereof or a judgment may be entered against you. Date: August o 3 , 2005 PAUL J. CL I, ESQUIRE Attorney for 1j fendant MSB Property, LLC EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No,: 82717 GH SINKING SPRING ASSOCIATES, L.P. V. MSB PROPERTY, LLC and KLNB,LLC Attorney for Defendant, MSB Property, LLC COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA Defendants. NO. 05-2884 CIVIL TERM VERIFICATION PURSUANT TO Pa.R.C.P. 205.3 I, Dennis Capilouto, hereby state that (1) the facts in the attached Answer, New Matter and Counterclaim are true and correct to the best of my knowledge, information and belief and (2) on the date set forth below I signed this original Verification and faxed it to my attorneys and authorized my attorneys to attach the facsimile copy to the original document to be filed with the Court pursuant to Pa.R.C.P. 205.3(a). I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unworn falsification to authorities. Date: Dennis Capilouto cqm Laneshia Stamm to Amy Roften at Wed 8/3/2005 11:48 AM 2/2 Pn-C-Cy V_SV-SG t=f:O1•I: CG ?- TII:AC+TMGIITF. S4`. ???LSi3lT! TOrfOJ"A??J?lt1'J F.T 'p:+l.F:1V. 1.tN l:KIIKt: 6c M+Y :A I<'f'M Y+ Y.[:. '!w•.+C'w+u.w:uu S4YYVr SYik 3il() 20th Mxr4sY C.fruvl M+l+•Je:ll+l+:+:, PA 1 Rl(la ++•/f•+vrnv/.++' n j n ?ni. GCB P++'•Ix'?!Y. !.!.(^. 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Iiva...:Y CYV:I..Yan RUG-2-2005 18:14 FROM:ORC INVESTMENTS 5625925205 TO:19492240339 P.2 EIZEN, FINEBURG & MCCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No.: 82717 GH SINKING SPRING ASSOCIATES, L.P. AHorneyforDefendant, MSBPropeM LLC COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA V. NO. 05-2884 CPVIL TERM MSB PROPERTY, LLC and KLNB,LLC Defendants. : VERIFICATION PURSUANT TO P&R.C.P. 205.3 1, Dennis Capilouto, hereby state that (1) the facts in the attached Answer, New Matter and Counterclaim are true and correct to the best of my knowledge, information and belief and (2) on the date set forth below I signed this original Verification and faxed it to my attorneys and authorized my attorneys to attach the facsimile copy to the original document to be filed with the Court pursuant to Pa.R.C.P. 205.3(a). 1 understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unworn falsification to authorities. Date: 7-7--05- (? Danis Capilouto C?; d O ? N N a s O > Z ? d } 8 0000 00 y d ¢ E o N v O m m ? ? "" T a ? d ?a A a t o 13 S ?( (O O Ci c • 0 c S rv U m m ?` a S 3 a E U G ? N rv Oro EE m'? m H m m O aN?o ? E m C m O of 2•? u yG>a''B?o. '#ba ? r4 U g W m W U N"0 ? ? N N N N f0 Ol m rl ? p ?m m G E G 55 a ' Sa N fi v ?mt a W Q •? co g Fg d G Z 4 N N ' 9A N ; ? q N fi ? y o ? P g z A tP ? w 10, ? N A W 7 0 r N do T? ? yc. c cgNw. o -o ?s ..r ? r '^ r rr r r r v co N 1 O .D Lr) S L17 M1 7 ri N m 0 0 0 0 m m 0 M1 N S 'u N_ 0 7 0 L n L 2 a O N J . v / W N 7W ONa -d ?, o G y m ? n tc+ .p n 9 ?05o g 9 G o P O N O ? d 6 SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2005-02884 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND GH SINKING SPRING ASSOCIATES L VS. MSB PROPERTY LLC R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT MSB PROPERTY LLC , by United States Certified Mail postage prepaid, on the 8th day of June 2005 at 0000:00 HOURS, at 3282 FALKLAND CIRCLE HUNTINGTON BEACH, CA 92649 , a true and attested copy of the attached DECLARATORY JUDGMENT Together with The returned receipt card was signed by 00/00/0000 . on Additional Comments: Envelope was returned to Sheriff's office as "attmepted not known" Sheriff's Costs: Docketing 6.00 Cert Mail 6.49 Affidavit .00 Surcharge 10.00 .00 22.49 Paid by STEPHEN NUDEL Sworn and subscrib to before me this a4 day of /iothonotary So answe R. Thomas Kline Sheriff of Cumberland County on 07/19/2005 SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2075-02884 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND GH SINKING SPRING ASSOCIATES L VS. MSB PROPERTY LLC R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT KLNB LLC by United States Certified Mail postage prepaid, on the 8th day of June 2005 at 0000:00 HOURS, at 100 WEST ROAD SUITE 505 IMORE. MD 21204 , a true and attested copy of the attached DECLARATORY JUDGMENT Together with The returned receipt card was signed by JENNIFER ROLFES on 06/10/2005 . Additional Comments: Sheriff's Costs: Docketing 6.00 Cert Mail 6.49 Affidavit .00 Surcharge 10.00 .00 22.49 Paid by STEPHEN NUDEL Sworn and subscr' ed to before me this dG ? day of Pfo honotary So answers : = J R. Thomaass?Klip? Sheriff of Cumberland County on 07/19/2005 SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NQ: 20:05-02884 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND GH SINKING SPRING ASSOCIATES L VS. MSB PROPERTY LLC R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT MSB PROPERTY LLC by United States Certified Mail postage prepaid, on the 8th day of June 2005 at 0000:00 HOURS, at C/O DRC INVESTMENTS INC PO BOX 2744-229 HUNTINGTON BEACH, CA 92647 and attested copy of the attached DECLARATORY JUDGMENT with a true Together receipt card was signed by S. PRATT 06/13/2005 . Additional Comments: Sheriff's Costs: Docketing 18.00 Cert Mail 6.49 Postage .37 Surcharge 10.00 .00 34.86 Paid by STEPHEN NUDEL r thonotary The returned Sworn and subscrib d to before me this, X?m day of a"-, A.D. on So answej?s: - ?-- R Thomas Kline Sheriff of Cumberland County on 07/19/2005 w ? GH SINKING SPRING IN THE COURT OF COMMON PLEAS ASSOCIATES, L.P., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 05-2884 MSB PROPERTY, LLC, KLNB, LLC ACTION FOR DECLARATORY JUDGMENT Defendants PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff, GH Sinking Spring Associates, L.P., by and through its attorneys, Law Offices Stephen C. Nudel, PC, and respectfully files these Preliminary Objections in the Form of a Demurrer to the Defendant MSB Property, LLC's ("MSB") Answer: 1. Plaintiff, as seller, and Defendant MSB, as Buyer, entered into an Agreement of Sale ("Agreement") for real property located in South Heidelberg Township, Berks County, Pennsylvania, ("Property"). A true and correct copy of the Agreement is attached hereto as Exhibit A. 2. Plaintiff filed an Action for Declaratory Judgment ("Action") on or about June 3, 2005. Plaintiff is seeking the payment of a deposit paid by Defendant MSB pursuant to the Agreement, currently being held by Defendant KLNB, LLC. 3. Defendant MSB filed an Answer to Plaintiff's Action on or about August 4, 2005. Defendant MSB included New Matter and a Counterclaim with its Answer. 4. Pursuant to the Counterclaim, Defendant MSB is seeking Declaratory Judgment for the return of the deposit and is seeking a finding of unjust enrichment. 1. DEMURRER - COUNTERCLAIM COUNT II 5. The doctrine of unjust enrichment is not applicable when the relationship between the party is founded on a written agreement or express contract. Schott v. Westinghnuae ElPntrir Corporation, 259 A.2d 443,448 (1969). 6. The doctrine of unjust enrichment is not applicable to agreements deliberately entered into by the parties however harsh the provisions of such contracts may seem in the light of the subsequent happenings. Third National Hank k Trutt Company v. t,ahigh Valley Coal Cn=anr, 44 A.2d 571, 574 (1945). 7. The relationship between the parties is the result of the written Agreement, deliberately entered into by the parties as evidenced by the Agreement attached hereto as Exhibit A and previously attached to Plaintiff's Action. 8. Defendant MSB has not challenged the legality of the Agreement or alleged that the parties are not bound by the same and has not alleged that the parties relationship is not based on the Agreement. 9. Defendant MSB has failed to state a claim under the doctrine of unjust enrichment for which relief can be granted. WHEREFORE, Plaintiff respectfully requests that Count II of Defendant MSB's Counterclaim be dismissed under Pa.R.C.P. Rule 1028 (3) for failure to state a claim for unjust enrichment. Respectfully submitted, LAW OF-F-IO&W STEPHEN C. NUDEL, PC Date: g?ay?os Attorney ID #41703 Andrew T. Kravitz, Esquire Attorney ID #80142 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff F'`.I_esalTurchase Contracts`,Sinkin2Spring-MSBProperry-vr2 APG: crr 12/20/04; 12/23/04 AGREEMENT OF SALE THIS AGREEMENT OF SALE made this ` ? +?,day of?^ """ , 2004 by and between GH SINKING SPRING ASSOCIATES, L.P., a Pennsylvania limited partnership, ("Seller") and MSB PROPERTY, LLC, a California limited liability company (`Purchaser"). BACKGROUND: A. Seller is the owner of certain real property located in South Heidelberg Township, Berks County, Pennsylvania known as Units numbered 1, 3 and 4, together with corresponding proportionate, undivided interest for all Units in the Common Elements of the Condominium (the "Condominium"), as defined in the Declaration of Condominium of Sinking Spring Retail Center, a Condominium dated May 12, 1999 in Volume 3083; page 2148 in the land records of Berks County (the "Recorder's Office"), as amended by that certain Amendment to Declaration of Condominium of Sinking Spring Retail Center, a Condominium dated October 19, 1999 and recorded in the Recorder's Office in Volume 3153, page 1554 (the "First Amendment") (collectively, the "Declaration") and consisting of a shopping center containing approximately 71,257 square feet of existing building space, all of which is more particularly described in Exhibit "A-1" attached hereto and incorporated herein by reference and depicted on the Site Plan attached as Exhibit "A" attached hereto and made a part hereof, B. As used herein, Unit 1 is sometimes referred to as the "Supermarket Parcel"; Unit 3 is sometimes referred to as the "Retail Parcel"; and Unit 4 is sometimes referred to as the "Development Parcel"; and collectively referred to as the "Units." C. Seller wishes to sell to Purchaser and Purchaser wishes to purchase from Seller said Premises upon terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises contained herein, and intending to be legally bound hereby, Seller and Purchaser agree as follows: 1. Agreement to Sell and Purchase. Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, subject to the terms and conditions of this Agreement, the Premises consisting of the following: (a) All those tracts or pieces of land comprising the Units, with any buildings and other improvements situated thereon; together with all easements, rights of way, licenses, privileges, hereditaments and appurtenances, if any, belonging to or inuring to the benefit of the land (including all easements, rights of way, privileges, licenses and other rights and benefits belonging to or running with the ownership of the Units); and (b) All right, title and interest of Seller in and to any land lying in the bed of any highway, street, road or avenue, opened or proposed, in front of or abutting or adjoining the Premises. 2. Purchase Price. The Purchase Price for the Premises shall be SEVEN MILLION FIVE HUNDRED TWENTY-FIVE THOUSAND and 00/100 DOLLARS ($7,525,000.00) (the "Purchase Price"), subject to adjustment as provided in this Agreement. 3. Pavment of Purchase Price. The Purchase Price shall be payable as follows: (a) A good faith deposit of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) (the "Deposit") upon execution of this Agreement of Sale, which shall beheld by KLNB, LLC, 100 west Road, Suite 505, Baltimore, Maryland, 21204, Attention: Kevin Barrett in an interest- bearing escrow account with interest payable to the parry entitled to the benefit of the Deposit. The Deposit shall be paid by cash, cashier's check or wire transfer of immediately available federal funds; (b) The Deposit, together with all interest accrued thereon, is collectively referred to herein as the "Deposit." In the event Purchaser purchases the Property in accordance with this Agreement, the Deposit shall be delivered to Seller at Closing (as hereinafter defined) and applied to the Purchase Price. After the expiration of the Due Diligence Period, the Deposit shall be non-refundable to Purchaser, except for termination resulting from casualty pursuant to paragraph 6, Seller's default or Seller's inability to satisfy the conditions set forth in paragraph 8(a) below or to convey title to the Property in the condition required by paragraph 5 below; (c) Purchaser shall be credited with an amount equal to the outstanding principal balance, together with any accrued but unpaid interest, owed by Seller and assumed by Purchaser under the Existing Loans (hereafter defined) on the date of Closing, which Existing Loans are to be assumed pursuant to paragraph 8 below; and (d) The balance of the Purchase Price shall be paid by cashiers, title company or certified check, or immediately available funds to Seller's account, together with remittance of the Deposit held in escrow, on the date of Closing of this sale, subject to adjustments as set forth herein. 4. Closine. (a) Closing ("Closing") hereunder shall take place at Purchaser's Title Company, or at such other location as the parties hereto shall mutually agree upon, on or before thirty (30) days after completion of the Due Diligence Period (hereafter defined). (b) Purchaser shall have one (1) option to extend the date of Closing, for a period ofnot more than fifteen (15) business days upon written notice from Purchaser to Seller sent not later than the date originally scheduled for Closing in order to allow Purchaser additional time to finalize any required arrangements with respect to the assumption of the Existing Loans (as further described in Section 8b below), provided that Purchaser is diligently pursuing assuming the Existing Loans, the delay was not caused by the actions or inactions of Purchaser and Purchaser shall, contemporaneously with the delivery of such written extension notice, deposit with the Purchaser's Title Company the additional sum of 2 T,venry-Five Thousand Dollars and 00/100 (S-25,000.00) by ofncial bate cashier's or attorney's trust check (the "Extension Deposit"). In the event the Purchaser delivers an Extension Deposit, such Extension Deposit shall be included in the definition of Deposit defined above. 5. Condition of Title. At Closing, Seller shall conveyto Purchaser good and marketable fee simple title to the Premises by delivery of a special warranty deed, in recordable form (the "Deed"),such title to be free and clear of liens, encroachments, easements, restrictions, objections, and other encumbrances, except for the Permitted Encumbrances (hereafter defined), and shall be insurable as aforesaid at ordinary rates by Purchaser's Title Company. For the purposes of this Agreement, "Permitted Encumbrances" shall mean: (a) those matters shown on Exhibit "B" attached hereto and made a part hereof, including without limitation all documentation evidencing or securing the Existing Loans; (b) the terms and conditions contained in the leases and occupancy agreements listed on Exhibit "B-1" (the "Leases") attached hereto and made a part hereof; and (c) those matters appearing in Purchaser's Title Commitment (hereafter defined) which are not objected to by Purchaser in writing prior to the expiration of the Due Diligence Period (hereafter defined). Purchaser shall, at its own expense, cause title to the Premises to be examined by the Purchaser's Title Insurance Company. Within thirty (30) days from the date of this Agreement, Purchaser shall deliver to Seller a copy of the Title Insurance Company's Report of Title or Commitment to Insure ("Purchaser's Title Commitment") with respect to the Premises and shall designate to Seller in writing any objections to or defects in title to the Premises, which shall be disclosed by Purchaser's Title Commitment and which Purchaser desires to be removed by the Title Insurance Company. Any objections or defects in title to the Premises (including those which may be disclosed by a survey) which are not specified in writing by Purchaser to Seller prior to the expiration of the Due Diligence Period, shall be deemed waived and accepted by Purchaser, except to the extent that any such objection or defect shall have arisen after the date of this Agreement. If title to any part of the Premises shall not be in accordance with the requirements above, Purchaser shall have the option of (i) taking such title to the Premises as Seller can give without an abatement of the Purchase Price or claim for damages against Seller with Purchaser hereby waiving and releasing any such claim, or (ii) terminating this Agreement of Sale and having the Deposit with accrued interest immediately returned to Purchaser with neither Purchaser or Seller having any further obligations under this Agreement of Sale. Solely with respect to title defects which arise after the date of this Agreement which are of a determinable monetary value, Seller shall be required to pay amounts necessary to cure such defect from the sales proceeds at closing or, at Seller's option, escrow sufficient funds with Purchaser's Title Company to enable the Title Company to insure against loss to Purchaser as a result of such defect. 6. RiskofLoss. Risk of loss shall remain with the Seller until Closing. Seller shall maintain all insurance policies currently in effect for the Premises until Closing. In the event the Premises shall be damaged or destroyed by fire or other casualty between the date of this Agreement and the completion of Closing, Purchaser may elect to: (i) accept the Premises in its then damaged condition without abatement of the Purchase Price in which event Seller shall assign to Purchaser the proceeds of all fire and extended coverage insurance policies attributable to the Premises; or (ii) terminate this Agreement in which event the Deposit shall be refunded to Purchaser. 7. Operations Prior to Closing Between the date first above written and the earlier of (i) the termination of this Agreement of Sale, or (ii) the Closing date: 3 (a) Except as set forth in paragraphs 6 (relating to damage by casualty) and 9(k) (relating to condemnation), the Premises shall be maintained, operated and managed in the same manner as it is presently being maintained, operated and managed, and the Premises shall be in substantially the same quality and condition on the Closing date as on the date hereof (reasonable wear and tear and damage by casualty excepted). (b) Seller shall promptly deliver to Purchaser a copy of any tax bill, notice or assessment, or notice of change in a tax rate or assessment affecting the Premises, any notice or claim of violation, of any law. any notice of any taking or condemnation or notice of intent to enter with respect co a condemnation affecting or relating to the Premises, or any other notice affecting or relating to the Premises. (c) Any payments required to be made to contractors, subcontractors, mechanics, materialmen and all other persons in connection with work done or services performed with respect to the Premises prior to the Closing date shall be made as and when due, but in any event prior to the Closing date, and as of the Closing date there shall be no basis for the filing of any mechanics' or materialmen's liens againstthe Premises on the basis of any work done or services performed on Seller's behalf with respect to the Premises. (d) Seller shall not enter into any new contract, service agreement, leasing agreement, management agreement or other agreements relating to the repair, maintenance or operation of the Premises which cannot be terminated without termination fee or penalty within sixty (60) days after Closing, without Purchaser's prior written consent. (e) Termination of Leases. Seller agrees not to terminate any of the Leases prior to Closing without the prior written approval of Purchaser, which approval Purchaser agrees not unreasonably to withhold or delay if a tenant is in default under the terms of its lease and such approval shall be irrevocably deemed to have been given if no objection is raised by Purchaser and delivered to Seller within ten (10) days after delivery of Seller's request for approval. Neither the termination of any of the Leases prior to Closing by reason of the expiration of its term or by reason of the tenant's default thereunder, nor the existence of a default by the tenant thereunder shall excuse Purchaser from its obligations under this Agreement (including without limitation its obligation to pay the full Purchase Price). 8. Conditions of Closing. (a) The obligation of Purchaser under this Agreement to purchase the Premises from Seller is subject to the satisfaction of each of the following conditions (any one of which may be waived in writing in whole or in part by Purchaser at or prior. to Closing): (i) All of the representations and warranties by Seller, set forth in Paragraph 9 and otherwise herein, shall be true and correct at and as of the date of Closing in all material respects as though such representations and warranties were made at and as of the date of Closing; 4 (ii) Seller, in all material respects, shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with prior to or as of the Closing date; (iii) Seller shall provide Purchaser, seven (7) days prior to Closing, Tenant Estoppel Certificates ("Tenant Estoppel"), in form and substance reasonably acceptable to Purchaser, from tenants of the Center comprising at least ninety (90%) percent of the leased space in the Center; provided, however, that Seller shall not be required to obtain certificates or agreements which alter the substantive rights and obligations of the tenants under the Leases. Notwithstanding the provision set forth in this paragraph 8(a) to the contrary, if and to the extent, after the use of reasonable efforts, Seller has not been able to obtain from any of the tenants under the Leases, a Tenant Estoppel, Seller shall give to Purchaser written notice of such inability ("Inability Notice") on or before the date occurring seven (7) days prior to Closing; and upon receipt of an Liability Notice, Purchaser shall give to Seller a written statement in which Purchaser shall elect, at Purchaser's sole option, either to waive the requirement for the delivery of the missing Tenant Estoppel and to accept, in its place as satisfying the requirement for the delivery thereof, the representations and warranties of Seller stating that the Lease for the non-delivering tenant is in full force and effect and that Seller has not received a notice of default thereunder, or to terminate this Agreement by giving notice of such termination to Seller within five (5) days after receipt of the Inability Notice from Seller. In the event Purchaser timely terminates this Agreement in accordance with the provisions of the preceding sentence by giving timely written notice of such termination to Seller, this Agreement shall thereupon be and become null and void, the Deposit (and all interest accrued thereon) shall be returned to Purchaser, and neither party shall have any further rights nor obligations under this Agreement. In the event Purchaser does not timely terminate this Agreement pursuant to the provisions of this paragraph 8(a) after receipt of an Inability Notice, Purchaser shall be deemed conclusively to have elected to waive the requirement for the delivery of the missing Tenant Estoppel; and (iv) Seller shall convey to Purchaser good and marketable title in accordance with paragraph 5 of this Agreement. (b) Seller's obligations hereunder are conditioned upon Purchaser assuming all outstanding obligations of Seller, as Borrower, under the loan documents evidencing and securing those certain loans from Artesia Mortgage Capital Corporation (Retail Parcel) and Conseco Mortgage Capital, Inc. (Supermarket Parcel) (collectively, the "Existing Lenders") in the original principal amounts of $1,800,000.00 and $4,524,000.00, respectively, (the "Existing Loans'). The outstanding principal balance under the Existing Loans on the date of Closing shall be credited against the Purchase Price at Closing. The outstanding principal balance under the Existing Loans is approximately $5,910,000.00 in the aggregate as of the date hereof. Purchaser shall be responsible for satisfying the requirements of the Existing Lenders in connection with the assignment and assumption of the Existing Loans, including without limitation, obtaining the Existing Lenders' approval in accordance with the loan documents and payment of the one percent (1 %) assumption fee required by the Existing Lenders. Seller shall provide Purchaser with copies of the loan documents to be assumed within five (5) days after full execution of this Agreement. In addition, Seller shall reasonably cooperate with Purchaser's efforts to satisfy the Existing Lenders' requirements; provided, however, that Seller shall not be required to incur additional third party costs in connection with such cooperation. (c) Seller's obligations hereunder are further conditioned upon the following: (i) Purchaser shall post bonds and other security required by any governmental authority in connection with the remaining development of the Property (or replace any such bonds or other security that may have been posted by Seller); (ii) Purchaser shall assume the responsibility for all costs of all permits and connection fees for the utilities in connection with the proposed development of the Development Parcel; (iii) Purchaser shall assume Seller's obligations with respect to time periods from and after Closing under the Subdivision Improvements Agreement to be entered into between Seller and South Heidelberg Township (the "Township") for improvements depicted on or contemplated by the approved plans for the Development Parcel substantially as depicted on Exhibit "C" attached hereto and made a part hereof, including without limitation, the obligation to post a bond in favor of the Township in the amount of $298.015.00 to secure the installation of said improvements. Seller shall deliver a copy of the latest draft of the Subdivision Improvement Agreement within five (5) days after the execution and delivery of this Agreement. 9. Representations and Warranties Seller, to induce Purchaser to enter into this Agreement of Sale, represents and warrants to Purchaser as follows: (a) Authority and Required Consents. Seller has full power, authority and legal right to enter into, execute and perform its obligations under this Agreement of Sale and the execution and delivery thereof requires no further action or approval in order to make same a binding and enforceable obligation of Seller; (b) Conflict. The execution and delivery hereof, the consummation of the transaction(s) contemplated hereby and compliance withtheterms and conditions hereof will not conflict with, or result in a breach of any mortgage, lease, agreement or other instrument, or any currently existing applicable law; judgment, order, writ, injunction, decree, rule or regulation of any court, administrative agency or other governmental authority to which Seller is a parry or by which it or its properties are bound, the conflict or breach of which would materially adversely affect Seller, s ability to consummate the sale of the Premises contemplated herein; (c) Regulatory Compliance. (1) Seller has complied in all material respects with all applicable federal, state and local laws, regulations and ordinances, including, but not limited to, zoning and building codes, affecting the Premises and its current use; (2) Seller has received no notice from any governmental authority of any violations of any federal, state or local law, regulation or ordinance affecting any portion of the Premises which remains uncorrected. Seller shall cure, prior to Closing, any violation of which Seller receives written notice prior to the Closing, or which results from any inspection of the Premises which occurs prior to Closing; (d) Public Improvements. No assessment forpublic improvements has been served upon the Seller with respect to the Premises which remains unpaid; (e) Litigation. There is no action, suit or proceeding pending, or to the knowledge of Seller, threatened against or affecting Seller or the Premises or any portion thereof or relating to or arising out of the ownership, management or operation of the Premises, in any court or _ before or by any federal, state or local entity which would materially impair the value of the Premises or the consummation of the transaction contemplated hereby; (0 Insolvency. There has not been filed by or against Seller a petition in bankruptcy or insolvency proceedings or for reorganization or for the appointment ofa receiver or trustee, under state or federal law, nor has the Seller made an assignment for the benefit of creditors or filed a petition for an arrangement or entered into an arrangement with creditor, which petition, proceedings, assignment or arrangement was not dismissed by final, unappealable order of the court or body having iurisdiction over the matter; and Seller has not admitted in writing its inability to pay its debts as they become due nor is Seller in fact unable to so pay its debts; (g) Leases and Contracts. There are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Premises, and no management, service, equipment, supply, maintenance, employment or concession agreements which are not terminable upon thirty (30) days notice with respect to or affecting the Premises, other than those set forth on the attached Exhibit (h) Utilities. The Premises are served by public water and public sewer; (i) Flood Plain. The Premises are not located within a flood plain area or Special flood hazard area as defined by the federal government pursuant to the Flood Disaster Protection Act of 1973, as amended; 0) Subdivision. The Premises constitutes one or more independent parcels of real estate, each of which has been validly subdivided in compliance with all applicable subdivision laws, regulations and ordinances; and 7 (k) Condemnation. Seller has not received any notice of intent to enter or notice of any condemnation proceeding or other proceedings in the nature of eminent domain or taking in connection with the Premises. In the event Seller receives any such notices, it will forthwith send a copy of such notice to Purchaser, and if a portion of the Premises is taken or condemned and the loss of such portion would materially impair the operation of the Shopping Center as shown on the Site Plan, Purchaser shall have the right to: (1) terminate this Agreement of Sale and have the Deposit with accrued interest immediately returned to Purchaser with neither Purchaser or Seller having any further obligations under this Agreement of Sale; or (2) proceed to Closing without an abatement of the purchase price. 10. Cooperation. The parties shall cooperate with and assist each other (at no cost to the cooperating party) in obtaining any and all permits, licenses, certificates and/or other approvals required or convenient for the development, operation, leasing, repair and maintenance of the Shopping Center including, but not limited to, building pen-nits, use and occupancy certificates, zoning permits and all other necessary or appropriate permits or approvals. 11. Due Diligence. (a) General Investigations. Commencing upon Purchaser's receipt of an executed copy of the Agreement of Sale from Seller, and continuing until January 30, 2005 (the "Due Diligence Period"), Seller and its representatives shall make available to Purchaser all plans, surveys, title policies, and other information relevant to the Premises as Purchaser shall reasonably request (to the extent such documents and information are in Seller's possession), and subject to the rights of existing occupants in the Shopping Center, Purchaser shall have the right to perform such tests, investigations, assessments, audits and studies (including without limitation, topographical studies, soil tests, ground water tests, environmental audits and other tests), prepare such plans, drawings and surveys, and make such inquiries and searches of govermnental records as Purchaser shall deem necessary or appropriate in its sole judgment and discretion, in connection with its evaluation of the Premises: and Seller shall_ cooperate reasonably with such investigationsofthePremises. Any entry by Purchaser onto the Premises shall be subject to the following conditions: (a) Such entry shall beat Purchaser's sole cost and expense; (b) Purchaser shall return each test location to substantially its original condition; (c) neither Purchaser nor any of its agents or contractors shall suffer or cause any liens or encumbrances against the Premises arising from such activities, and Purchaser shall indemnify, defend and save harmless Seller from any such liens or encumbrances; and (d) Purchaser shall indemnify and hold Sellerharmless from and against any claims for injuries to persons or Premises or other liability arising out of or in any way related to Purchaser's activities on the Premises including any (1) claims or judgments against Owner or (2) physical damage to the Premises, in either case caused by any acts or omissions of Purchaser, its agents and contractors while on the Premises during the Due Diligence Period unless such claims or liability result from the negligence or willful misconduct of Owner or its agents or contractors. Purchaser's indemnity obligations under the preceding sentence shall survive termination of this Agreement. If Purchaser, in its sole judgment, is dissatisfied with any aspect of any inspection, test, assessment, audit, study, application or investigation, Purchaser may, at Purchaser's sole option and discretion, by written notice to Seller no later than the last day of the Due Diligence Period, terminate this Agreement of Sale after which the Deposit with accrued interest shall be returned to Purchaser with neither Purchaser or Seller having any further obligations under this Agreement of Sale. Should Purchaser not provide Seller with a written notice oftermination within the Due Diligence Period, then this paragraph shall be deemed waived. (b) Documentation. Seller agrees to promptlyprovide to Purchaser copies of all existing Leases, engineering reports, structural reports, as built surveys and environmental audits, studies and reports which relate to the Premises to the extent such documentation is in Seller's possession. IfPurchaser elects to terminate this Agreement in accordance with its terms, Purchaser agrees to return all information provided by Seller to Purchaser concerning the Premises and deliver to Seller, at no cost to Seller, copies of any and all tests, studies, reports, title reports and surveys performed by Purchaser with respect to the Premises, including without limitation, site and engineering studies, planning and zoning applications, and environmental studies, as additional consideration for Seller's execution of this Agreement. Such copies shall be delivered to Seller within ten (10) days of Seller's request. (c) Purchaser hereby represents and agrees that Purchaser shall fully inspect the Premises on or before expiration of the Due Diligence Period and Purchaser hereby agrees that Purchaser shall purchase the Premises wholly "AS IS"; it being agreed that except as specifically set forth or required by the terms and conditions of this Agreement, Seller has made no covenants, warranties or representations whatsoever pertaining to the Premises, the condition thereof, the value thereof, or any other matter with respect to the Premises. 12. Provisions with Respect to Closing. (a) At the Closing Seller shall deliver or cause to be delivered to Purchaser the following: (1) Deed. A special warranty deed, in recordable form, duly executed and acknowledged by Seller and in form reasonably satisfactory to Purchaser's attorney conveying title to the Premises; (2) Certificates and Plans. To the extent possessed by Seller, copies of all occupancy certificates, licenses, permits; authorizations and approvals required by law or issued by governmental authorities having jurisdiction over the Premises, and copies of all plans and surveys for the Premises; (3) FIRPTA Certification. An affidavit., in accordance with the Foreign Investment in Real Property Tax Act, stating that Seller is not a foreign person within the meaning of such Act and that Seller is not subject to the withholding requirements set forth in such Act; (4) Assignment of Leases. An assignment of the Leases assigning to Purchaser all of Seller's. right, title and interest in and to the Leases; (5) Assignment of Agreements Affecting Real Estate. A quitclaim assignment of all of Seller's right, title and interest in and to the existing maintenance contracts, licenses, equipment warranties, construction warranties or other agreements related to the operation, repair or maintenance of the Premises; (6) Assignment of Declaration Rights. An assignment of Seller's rights as Declarant under the Declaration, exclusive of Seller's retained rights with respect to Unit 2 of the Condominium. (7) Title Affidavits, Etc. Seller agrees that it shall execute any instruments agreements, affidavits and/or other documentation reasonably required by the title company insuring Purchaser's title in order to effectuate the transaction contemplated hereby, and the issuance of the title insurance policy; and (8) Resimations. Resignation of Seller and its employees as the officers and members of the executive board of the Condominium, except to the extent that Seller is entitled to appoint officers or members of the Executive Board as the owners of Unit 2. (b) At Closing, Purchaser shall deliver to Seller the following: (i) Purchase Price. The portion of the Purchase Price payable pursuant to paragraph 2. (ii) Assumption Agreement. At Closing, Seller and Purchaser shall each execute, acknowledge and deliver an agreement(s) (the "Assumption Agreement") in which: (A) Purchaser shall assume and agree to be bound by all of the obligations ofSellerwhich accrue after-the Closing date: (1) as Landlord under the Leases (including, without limitation, the obligations to complete, make and/or pay for maintenance, repairs and replacements and to maintain and return any of the security deposits in accordance with the requirements of the Leases and applicable law; and (2) the Seller's obligations under the agreements affecting real estate which are to be assigned by Seller to Purchaser pursuant to subparagraphs 12(a)(4) and 12(a)(5) above. (B) Purchaser shall agree to Indemnify Seller with respect to all claims, liabilities, costs and expenses which maybe asserted against Seller or which Seller may incur or suffer which arise out of or with respect to the Leases, the Premises, the Existing Loans or those of the agreements affecting real estate which are assigned by Seller to Purchaser pursuant to subparagraphs 12(a)(4) and 12(a)(5) above with respect to time periods from and after the Closing Date. Seller shall agree to indemnify Purchaser with respect to all claims, liabilities, costs and expenses now asserted or which may be asserted against Purchaser or which Purchaser may incur or suffer which arise out of or with respect to the Leases, the Premises, the Existing Loans or those of the agreements affecting real estate which are assigned by Seller to Purchaser pursuant to subparagraphs 12(a)(4) and 12(a)(5) above with respect to time periods prior to the Closing Date. 10 ?. Annorz onments: Transfer Taxes (a) Items to be Apportioned. W The following items shall be apportioned pro rata between Purchaser and Seller on a per diem basis as of the Closing Date: (A) real estate taxes on the Premises (on the basis of the actual fiscal years for which such taxes are assessed); (B) minimum water and sewer rents (excluding, however, any water and sewer rents paid directly by any tenants under the Leases based upon individual meters, if any, measuring the consumption of water by such tenants in their respective demised premises); (C) accrued but unpaid interest under the Existing Loans; (D) the sums payable to Seller as owner of the Premises pursuant to the Leases, agreements affecting real estate, the Declaration or other agreements affecting the Premises (collectively, the "Receivables"); and (E) any tax, insurance or other escrows maintained with the Existing Lenders pursuant to the Existing Loans. (ii) Any credit due to Purchaser pursuant to paragraph 13 shall be applied as a credit against the portion of the Purchase Price due at Closing, and any credit due to Seller pursuant to Article (a)(i) shall be paid by Purchaser to Seller at Closing as an addition to the Purchase Price. (b) "Pass Thru" Items. W The apportionment of amounts payable by each tenant under the Leases on account of real estate taxes and/or amounts payable by such tenants and/or owners and occupants of other Units in the Condominium on account of the costs of maintaining, owning and operating the property in the Condominiurn under the Declaration ("Operating Cost Contribution") for the calendar year 2004, if applicable, (and the amounts due Purchaser and Seller, respectively under each of the Leases with respect thereto) shall be made and paid on or - before the thirtieth day following the date on which the tenant or unit owner pays the Operating Cost Contribution due by it for the applicable calendar year pursuant to its respective Lease or the Declaration. Seller's portion of the Operating Cost Contribution for each applicable calendar year under each Lease shall be an amount which bears the same ratio to such Operating Cost Contribution for the calendar year as the number of days up to and including the Closing date in the applicable calendar year during which the Property was owned by Seller bears to 365; and Purchaser shall be entitled to the remaining portion. Purchaser shall cause all Operating Cost Contributions for the applicable calendar year during which the Property was owned by Seller to 11 .,e paid to Purchaser by all tenants and Unit owners; and Purchaser shall divide and distribute ne amounts so collected between Purchaser and Seller in accordance with the provisions hereof. (ii) At Closing, Seller and Purchaser shall agree upon an estimate of the amount which will be payable by Purchaser to Seller in accordance with the terms of subparagraph 13(b)(i) above and such estimated amount shall be paid by Purchaser to Seller at Closing. When the actual amount payable by Purchaser to Seller pursuant to this paragraph U(b)(ii) has been determined after the expiration of the calendar year in which closing occurs, if the estimated payment made to Seller at Closing is less than the actual amount payable to Seller, Purchaser shall pay the deficiency to Seller; and if the estimated amount paid to Seller at Closing exceeds the amount actually payable to Seller pursuant to this paragraph I I(b)(ii), Seller shall reimburse the excess to Purchaser. (c) Payments Received After Closing: Delinquencies. (i) (A) Promptly upon receipt after Closing, Seller shall deliver to Purchaser any payments received by Seller after Closing on account of Receivables which are applicable to periods after Closing. (B) Promptly upon receipt after Closing, Purchaser shall deliver to Seller any payments received by Purchaser after Closing on account of Receivables which are applicable to periods prior to Closing. (ii) If, at Closing, any tenants or Unit owners are in arrears in the payment of Receivables or other sums which were payable prior to Closing, all payments of such sums by such tenants or unit owners to Purchaser after Closing shall be deemed as being applicable, first, as against such arrearages to the extent of two (2) months, then as against current sums then due and, finally, as against any other such arrearages which existed as of Closing. (d) Post Closing Apportionments. If the apportionment of any advance of payments relating to operating expenses, or other payments received by Seller prior to the Closing date from a tenant under any of the Leases or a Unit owner under the Declaration on account of periods after the Closing date and on account of sums which are attributable to expenses incurred for periods of time after the Closing date, cannot be precisely determined at the time of Closing, Seller shall reasonably estimate the apportionment of such sums, and such estimated sums shall be apportioned at Closing pro rata between Purchaser and Seller on a per diem basis as of the Closing date. A post-Closing adjustment shall be made, if necessary, between Purchaser and Seller for such apportioned items within thirty (30) days after the sums can be precisely determined. (e) Unpaid Real Estate Taxes. If, on the Closing date, bills for the real estate taxes imposed upon the Premises for the tax fiscal period in which Closing occurs have been issued but shall not have been paid, such real estate taxes shall be paid at Closing. If such bills shall not have been issued on the Closing date, the amount of the real estate taxes shall be reasonably ascertained based upon the then current assessment and the anticipated tax rate, and 12 the portions of such taxes to be borne by Purchaser and Seller shall be deposited with the Title Insurance Company to be disbursed by the Title Insurance Company promptly after the real estate tax bills have been issued, for the payment of such bills. If the actual taxes are greater than the amounts estimated, Seller and Purchaser shall each promptly pay to the Title Insurance Company its pro rata share of such excess. (f) Utility Meter Readines. Seller shall use reasonable efforts to obtain readings of the utility meters on the Premises (excluding however any meters measuring utilities consumed by an individual tenant if such tenant is obligated by its Lease to pay separately for the utilities consumed by it as measured by such meter) to a date no sooner than ten (10) days prior to the Closing date. At or prior to Closing, Seller shall pay all charges based upon such meter readings, reasonably adjusted to the Closing date. However, if after reasonable efforts Seller is unable to obtain readings of any such meters prior to Closing, Closing shall be completed without such readings and upon the obtaining thereof after Closing, Seller shall pay the charges incurred prior to Closing as reasonably determined by Seller and Purchaser based upon such readings. (g) Tenant Security Deposits. (i) At Closing, Seller shall deliver or cause its agents to deliver to Purchaser, without consideration, a check or checks in the amount of all un-applied security deposits then held or owed by Seller as Landlord under the Leases. Purchaser shall, at Closing, deliver to Seller a letter in which Purchaser shall acknowledge receipt of the checks referred to in the preceding sentence. (ii) Purchaser agrees to Indemnify Seller of and from any and all loss and liability incurred after Closing resulting from a failure of Purchaser to return any security deposit (or interest thereon) which was paid by Seller to Purchaser at Closing. (h) Transfer Taxes. Seller and Purchaser shall each pay at Closing one-half ('/z) of all Realty Transfer Taxes imposed upon the Deed and the conveyance of the Premises from Seller to Purchaser or to the Permitted Assignee. (il Intentionally Omitted. 0) Post Closine Adjustments. Except as expressly provided herein, any item which cannot be accurately pro rated as of the Closing date shall, at Closing, be pro rated on the basis of the parties' good faith estimates, utilizing bills and receipts therefor for the comparable period during the preceding year, and shall be re-pro-rated after Closing within thirty (30) days after precise information becomes available. In the event any errors or omissions in computing the apportionments under this paragraph 13 shall be discovered, the parties hereto shall promptly make adjusting payments to each other. 14. Limitation of Liability. If Purchaser defaults under this Agreement of Sale, the right of Seller to be paid the Deposit from the Purchaser's title insurance company shall be Seller' s sole and exclusive remedy, and Seller waives any right to recover the balance of 13 the Purchase Price, or any part thereof, and the right to pursue any other remedy permitted by law or in equity against Purchaser for any matter arising under this Agreement or otherwise. If Seller defaults under this Agreement, Purchaser shall either: (1) terminate this Agreement, whereupon the Deposit shall be returned to Purchaser, in which event neither parry shall have any further obligation hereunder; or (2) seek specific performance of this Agreement. 15. Brokers. Seller and Purchaser represent to each other that neither parry has dealt with any broker in connection with this transaction other than KLNB, LLC ("KLNB") and Newmark Real Estate of New Jersey, LLC ("Newmark") and agree to indemnify, defend and hold each other harmless in the event of any breach of this representation. KLNB shall be paid a commission by Seller pursuant to a separate agreement and a portion of such commission shall be paid by KLNB to Newmark pursuant to a separate agreement between KLNB and Newmark. Purchaser acknowledges and agrees that any payments to Stewart Weston and/or Marcus & Millichap in connection with this transaction shall be the sole responsibility of Purchaser pursuant to a separate agreement with Purchaser. 16. Assignment. Purchaser may not assign Purchaser's rights under this Agreement, without the prior written consent of Seller, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Purchaser shall have the right to assign all, but not a portion, of its rights under this Agreement only to any entity under common control with the named Purchaser hereunder ("Permitted Assignee"). Any such assignment, however, shall not release or relieve Purchaser of and from any liability or obligation under this Agreement, and Purchaser shall continue to be primarily liable under this Agreement. No such assignment or designation shall be effective, however, unless and until Purchaser shall have furnished to Seller an executed copy of the written Assignment and/or designation with an agreement by the assignee or designee thereunder to assume, perform and be responsible, jointly and severally with the Purchaser named herein, for the performance of all of the obligations of Purchaser under this A-reement. Seller shall have the right to rely in good faith on the genuineness and validity of the notice from Purchaser of an assignment and to convey the Premises to the assignee without liability to Purchaser or any other person, and Purchaser shall Indemnify Seller against any such liability in connection with such conveyance. IT Notices. All notices and other communications to be given under this Agreement shall be in writing and shall be hand delivered or sent by reputable, overnight courier service, by registered or certified mail, return receipt requested, or by facsimile, addressed or sent as follows: If intended for Seller, GH Sinking Spring Associates, L.P. c/o Elysian Partners, L.P. 20 Erford Road, Suite 10 Lemoyne, PA 17041 Attention: Philip Markovitz 14 With a copy to: Elysian Partners, L.P. 20 Erford Road, Suite 10 Lemoyne, PA 17043 Attention: Alan P. Garubba, General Counsel If intended for Purchaser, MSB Property, LLC c/o DRC Investments, Inc. P.O. Box 2744-229 Huntington Beach, CA 92647 Attention: Dennis Capilouto All such notices or other communications shall be deemed to have been given on the date of delivery thereof if given by hand delivery or fax, or on the date deposited with the courier service or the United States Postal Service if given by overnight courier service or United States mail, respectively. Notices by or to the parties may be given on their behalf by their respective attorneys. 18. Successors. This Agreement shall be binding upon and inure to the benefit of Seller and Purchaser and their respective successors and assigns. 19. Headings. Theheadingsandcaptionshereininsertedareforconvenience of reference only and in no way define, describe or limit the scope or intent hereof or any of the provisions hereof. 20. Severability. If any provision of this Agreement shall, for any reason, be held invalid, illegal or unenforceable, such holding shall not affect the validity, legality or enforceability of the remaining provisions of the Agreement. 21. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania. 21 Time is of the Essence. Time is of the essence of this Agreement. 23. No Recording. This Agreement shall not be recorded in the Office of the Recorder of Deeds or any other office or place of public record. 24. Counterparts. This Agreement maybe signed in one or more counterparts (or with counterpart signature pages) which, taken together, shall constitute a fully executed Agreement and shall be considered a single document. 25. Section 1031 Exchange. Purchaser may consummate the purchase ofthe Premises as part of a so-called like kind exchange (the "Exchange's pursuant to §1031 of the Internal 15 Revenue Code of 1986, as amended, provided that (a) the Closing shall not be delayed by reason of the Exchange; (b) Purchaser shall effect the Exchange through an assignment of its rights and obligations under this Agreement to a qualified intermediary; and (c) Seller shall not incur any costs or expenses in connection with the Exchange. Purchaser hereby agrees to cooperate with the Seller in effectuating Section 1031 Tax Free Exchange for all or part of the Premises upon request by Seller, provided that there is no additional cost to Purchaser and that the 1031 Exchange does not adversely impact Purchaser's rights under this Agreement. 26. Integration Clause. This Agreement constitutes the entire understanding among the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, inducements or conditions, express or implied, oral or written. Furthermore, this Agreement shall not be changed, modified, amended or altered unless such change, modification, amendment or alteration is in writing and duly executed by Seller and Purchaser. IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement as of the day and year first written above. WITNESS: Seller: GH SINKING SPRING ASSOCIATES, L.P. By: GH Sinking Spring General Partner Corporation By: _ Name: Title: WITNESS: Purchaser: MSB PROPERTY, LLC i ? Dennis Capilouto Manager 16 Revenue Code of 1986; as amended, provided that (a) the Closing shall not be delayed by reason of the Exchange; (b) Purchaser shall effect the Exchange through an assignment of its rights and obligations under this Agreement to a qualified intermediary; and (c) Seller shall not incur any costs or expenses in connection with the Exchange. Purchaser hereby agrees to cooperate with the Seller in effectuating Section 1031 Tax Free Exchange for all or part ofthe Premises upon request by Seller, providedtitatthere is no additional cost to Purchaser and that the 1031 Exchange does not adversely impact Purchaser's rights under this Agreement. 26. Integration Clause. This Agtyment constitutes the entire understanding among the parties u ith respect to the subject matter hereof and supersedes all prior or contemporaneom understandings or agrcements, inducements or conditions, express or implied oral or v ritten. Furthermore, this Agreement shall not be changed, modified, amended or altered unless such change, modification, amendment or alteration is in writing and duly executed by Seiler and Purchaser. V IN WITNESS WHEREOF. Seller and Purchaser have executed this Agreement as of the day and year first written above. WITNESS: Seller: GH SD4MG SPRLNG ASSOCIATES, L.P. By- GH Sinldng Spring General Partner Corporation Ttt1C] lo?1Ll) i?l??i? Purchaser: MSB PROPERTY, LLC Bc: ?exn+sCap110 O Llanager 16 Wt TNESS: %I L 0 fi r • 00 s F ?S cue _1 yay C C O T a D m . M A O ? 3 A O j R m v sa M ss v o (m eQ j /n J S J r ?Ckwm_ M ?Or_Z m?'S `. _ e?-Ih'p??N fl0 O-02 Z?"'mm?O ?OI r+??m 2= Ln O?OZ\ O= yy J•p>Z? ;c) y10 n M'v ?yy p2C?b ?? >mn?z? ZS c zpQ,p<dCN O o ril C) v y cgrNii?= .. ? • p a 8 Q Qi x y m Z ? C) D • J Z N =°a D QQ? N -0 _l Z u7 ?- c Z ,c?A VI n C rr, 2 z s 0 GY s s a M o ? tll r rn M 0 0 M M (? LM 0 EXHIBIT "A-1" Unit 1 All that certain unit designated as Unit Number 1, being a unit in the Declaration of Condominium of Sinking Spring Retail Center, a Condominium, located in South Heidelberg Township, Berks County, Pennsylvania, as designated in the Declaration of Condominium of Condominium of Sinking Spring Retail Center, among the Land Records of Berks County, Pennsylvania, dated the 12' day of May, 1999 and recorded in Volume 3083, Page 2148. Amendment to Declaration of Condominium of Sinking Spring Retail Center, a Condominium dated October 19, 1999 and recorded in Volume 3153, Page 1554. Together with all right, title and interest, being the respective appurtenant 59.369% undivided interest of, in an to the Common Elements, as set forth in the aforesaid Declaration of Condominium. Unit 3 All that certain unit designated as Unit Number 3, being a unit in the Declaration of Condominium of Sinking Spring Retail Center, a Condominium, located in South Heidelberg Township, Berks County, Pennsylvania, as designated in the Declaration of Condominium of Condominium of Sinking Spring Retail Center, among the Land Records of Berks County, Pennsylvania, dated the 12" day of May, 1999 and recorded in Volume 3083, Page 2148. Amendment to Declaration of Condominium of Sinking Spring Retail Center, a Condominium dated October 19, 1999 and recorded in Volume 3153, Page 1554. Together with all right, title and interest, being the respective appurtenant 20.861 % undivided interest of, in an to the Common Elements, as set forth in the aforesaid Declaration of Condominium. Unit 4 All that certain unit designated as Unit Number 4, being a unit in the Declaration of Condominium of Sinking Spring Retail Center, a Condominium, located in South Heidelberg Township, Berks County, Pennsylvania, as designated in the Declaration of Condominium of Condominium of Sinking Spring Retail Center, among the Land Records of Berks County, Pennsylvania, dated the 12`h day of May, 1999 and recorded in Volume 3083, Page 2148. Amendment to Declaration of Condominium of Sinking Spring Retail Center, a Condominium dated October 19, 1999 and recorded in Volume 3153, Page 1554. Together with all right, title and interest, being the respective appurtenant 15.748% undivided interest of, in an to the Common Elements, as set forth in the aforesaid Declaration of Condominium. EXIIIBIT "°B" Permitted Exceptions Rights granted to Bell Telephone Co. in Miscellaneous Book 130, Page 286. 2. Rights granted to Pennsylvania Power and Light Co. in Miscellaneous Book 312, Page 360. 3. Release from Helen K. Fox et al. to Kathryn R. Huntzinger recorded in Record Book 2413, Page 29. 4. Assignment of Leases and Rents in Record Book 2931, Page 1139. Subdivision Improvements Agreement in Record Book 2957, Page 2270. 6. Deed of Easement from GH Sinking Spring Associates, L.P. to Weaver Enterprises in Record Book 2990, Page 2185. 7. Conditions in Deed of Easement from Weaver Enterprises to GH Sinking Spring Associates, L.P. in Record Book 2990, Page 2193. 8. Rights granted to Bell Atlantic-Pennsylvania, Inc. in Record Book 2989, Page 1834. 9. Conditions on plan of "Retail Development Sinking Spring Drive-In, Final Site Plan" recorded in Plan Book 228, Page 28. 10. Terms and Conditions of Memorandum of Lease to Redners Markets, Inc. as set forth in Record Book 3032, Page 1381. 11. Terns of Easement Agreement set forth in Record Book 3075, Page 1384. 12. Declaration of Sinking Spring Retail Center Condominium as set forth in Record Book 3083, Page 2148 and Amendment thereto as set forth in Record Book 3153, Page 1554. 3. Terms of Landlord's Consent and Waiver as set forth in Record Book 3099, Page 128. 14. Mortgage and Security Agreement dated May, 21, 1999 between GH Sinking Spring Associates, L.P and Conseco Mortgage Capital, Inc. 15. Assignment of Leases Containing a Present Assignment of Lease Proceeds dated May 21, 1999 between GH Sinking Spring Associates, L.P. and Conseco Mortgage Capital, Inc. 16. Assignment of Rents Containing a Present Assignment of Rent Proceeds dated May 21, 1999 between GH Sinking Spring Associates, L.P. and Conseco Mortgage Capital, Inc. 17. Mortgage, Security Agreement, Fixture Filing and Assignment of Rents, Leases, Income and Profits dated November 15, 1999 between GH Sinking Spring Associates, L.P. and Artesia Mortgage Capital Corporation. 18. Indemnification Agreement dated November 15, 1999 to Artesia Mortgage Capital Corporation. 19. Reciprocal Easement Agreement dated May 4, 1999 between GH Sinking Spring Associates, L.P. and TCH Investments, L.P. recorded in Volume 3075, Page 1384 as amended by Amendment to Reciprocal Easement .Agreement dated October 22, 1999. EXIBBIT "B-1" Existing Leases 1. Redner's Markets, Inc.; Ground Lease Agreement dated September 4, 1998. 2. Redner's Markets, Inc.; Lease dated December 18, 1997, as amended by Amendment No. 1 to Lease dated July 15, 1998 and further amended by Second Amendment to Lease dated May 18, 1999 3. Dijan Inc.; Lease Agreement dated March 3, 2004. 4. F1exCheck of Pennsylvania, LLC; Lease Agreement dated June 23, 2003. 5. Commonwealth of Pennsylvania, acting through its Department of General Services, Agent for the Pennsylvania Liquor Control Board; Lease Agreement dated December 3, 2002. 6. Senior Taco, Inc.; Lease Agreement dated July 1, 2003. 7. Supercuts, Inc.; Lease Agreement dated May, 1998. 8. Blockbuster Inc.; Shopping Center Lease dated October 16, 1998. 9. Cun-Yi Zheng; Lease Agreement dated August 2, 1998. Agreements Affecting Real Estate 1. Proposal for power sweeping with Power Sweep Maintenance Inc. dated December 21, 2004. 2. Proposal for snow removal with Schlouch Incorporated dated September 15, 2004. Proposal for landscaping services with Heilner Landscaping Co., Inc. dated November 18, 2003. N L dltlt1',lllll 1'11111f ?1111 ?,?n illn ? ,l?llllt I 0 °?lU R 0422) t'. i vii? ?•? Yom} 1- _ - ? ? f' /? SpP,INc, MP s?NK1N MASTER Revenue Code of 1986, as amended. provided that (a) the Closing shall not be delayed by reason of the Exchange; (b) Purchaser shall effect the Exchange through an assignment of its rights and obligations under this Agreement to a qualified intermediacy; and (c) Seller shall not incur any costs or expenses in connection with the Exchange. Purchaser hereby agrees to cooperate with the Seller in effectuating Section 1031 Tax Free Exchange forall or part ofthe Premises upon request by Seller, provided thatthere is no additional cost to Purcbaser and that the 1031 Exchange does not adversely impact Purchaser's rights cruder this Agreement. 26. Inter ation Clause. This Agreement constitutes the entire unders=ding among the panics Mth respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, inducements or conditions, express or implied oral or a7itten. Furthermore, this Agreement shall not be changed, modified. amended or altered unless such change, modification, amendment or alteration is in ti Titing and duly executed by Seller and Purchaser. IN WUNESS'WHEREOF. Seller and Purchaser have executed this Agreement as of the day and year first ?% itten above. WITNESS: Seller: GH SINMG SPUNG ASSOCIATES. L.P. By: Gil Sinldng Spring General Partner Corporation WITNESS: ?1? 1 -1 By: - Name: Title: Purchaser: MSB PROPERTY, LLC By' r?i`G 1 ?2HRi5 C2pi1?? Manager 16 GH SINKING SPRING IN THE COURT OF COMMON PLEAS ASSOCIATES, L.P., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 05-2884 MSB PROPERTY, LLC, KLNB, LLC ACTION FOR DECLARATORY JUDGMENT Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Paul J. Cianci, Esquire Eizen, Fineburg & McCarthy Two Commerce Square 34th Street 2001 Market Street Philadelphia, PA 19103 LAW IT HEN C. NUDEL, PC Date: ?lay,o? An r w T. Kravitz, Esquire Attorney ID #8014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Plaintiff . y ?? ?l n ? ? ? ?f :.? -„ r. i .? =` ?? n ? h ?. ? ,f t (1 ?y? ? ? Z1 ? _ `, l `? '}"C; J .G ?,? L Cr' SAIDIS SHUFF FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 Tel.: (717) 243-6222 Fax: (717) 243-6486 By: Suzanne C. Hixenbaugh, Esquire Identification No.: 91641 GH SINKING SPRING ASSOCIATES, L.P. Plaintiff, V. MSB PROPERTY, LLC and KLNB,LLC Defendants. Attorney for Defendant KLNB, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 05-2884 CIVIL TERM PETITION FOR INTERPLEADER Petitioner, KLNB, LLC, by its attorneys and pursuant to Pa.R..C.P. 2303, files this Petition for Interpleader, and in support thereof avers the following: Petitioner, is a defendant in the above-captioned matter. 2. Petitioner seeks to interplead GH Sinking Spring Associates, L.P., the plaintiff in this action and defendant MSB Property, LLC for the reasons set forth in this Petition. 3. Plaintiff has commenced an action against defendant KLNB, LLC, petitioner herein, as a result of an Agreement of Sale between the plaintiff and defendant MSB Property, LLC dated January 10, 2005. 4. Under Paragraph 3 of the above referenced agreement, Plaintiff was to deposit One Hundred Fifty Thousand Dollars ($150,000.00) with petitioner KLNB, LLC as a good faith deposit of the Purchase Price, to be placed in an interest bearing account (the "Deposit'). 5. The underlying action is an action for damages by plaintiff against defendant MSB Property, LLC to recover the Deposit under the above referenced agreement. 6. Petitioner has no interest in the Deposit, other than as the designated escrow agent under the above referenced agreement. 7. Petitioner has not subjected itself to independent liability to either the plaintiff or defendant MSB Property, LLC with respect to the subject matter of this action. 8. Petitioner is able to pay the Deposit plus accrued interest into court or to such person as the court may direct. 9. This Petition is filed in good faith and not in collusion with the plaintiff or defendant MSB Property, LLC. WHEREFORE, petitioner requests this Court enter an Order: (1) interpleading plaintiff and defendant MSB Property, LLC; (2) staying all proceedings pending final judgment: on this interpleader; (3) discharging petitioner from any liability to either plaintiff or MSB Property, LLC upon payment into Court of the Deposit; (4) awarding petitioner the costs of suit, including reasonable attorneys fees; and (5) granting such other relief as may be appropriate under the circumstances. 9 ^? Saidi , 'huff, Flower & Lindsay, Attorneys for Defendant, KLNB, LLC By: Suzanne C. Hixenbaugh, Esquire ID No. 91641 RUG-31-2005 16 31 KLNB INC. 703 20P, ?999 SAIDI6 SHUFP FI"M do LNDSAY 26 wwt High Seat Carlisle, PA 17013 Tel.: (717) 243-6222 Fu: (717) 243-6486 By: Sussaioe C. Hhtanbaugh, Esquire IdmitificadmNa: 91641 GH SINKING SPRING ASSOCIATES, LP. Plain@$ V. MSB MOPE.RTY, LLC and KLNB,LLC Defendants. Atf w,v for D41im at KLNB, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 054384 CrM TERM I, ANDIRM G>rORG1BLAICOS, a Member of KLNB, LLC hereby state that (1) the ficts in the amIted Petition for Interpleader um tnu sad eanect to the best of my knowledge, infotmetim and belief and (2) an the date sat forth below I aped this orgpW Vanfiostien and fixed it to my athxneys and vAhonze my attorneys to attars the fa eshnile copy to the mi&W documaot to be Mel with the Court pvmtant to Ps.RC.P. 205.3(a). I understand that false statanents herein an made subject to the pena ies of 18 PLC.S.A. 44%9, relating to unswom falsificatiois to authorities. Dater Al a By Andrew Mmob KLNB. LLC SAIDIS SHUFF FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 Tel.: (717) 243-6222 Fax: (717) 243-6486 By: Suzanne C. Hixenbaugh, Esquire Identification No.: 91641 GH SINKING SPRING ASSOCIATES, L.P. Plaintiff, V. MSB PROPERTY, LLC and KLNB,LLC Defendants. AttornE y for Defendant KLNB, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 05-2884 CIVIL TERM CERTIFICATE OF SERVICE I, Suzanne C. Hixenbaugh, hereby certify that on the date set forth below, I served on the below listed counsel via certified mail (return receipt requested) a true and correct copy of the foregoing Petition for Interpleader. Andrew T. Kravitz, Esquire Law Offices of Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 Paul J. Cianci, Esquire Eizen, Fineburg & McCarthy, PC Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Date: g 3 5" n Sae is, ff, Flower & Lindsay, Attorneys for Defendant, KLNB, LLC By: Suzanne C. Hixenbaugh, Esquire ID No. 91641 C-) ? o C:. ?=? -n ', , c_ ' m a o r a -"'c' -.-. t-, -- -, ..., ?_ -„ ._ - =:- C . -fit W _a ti- rv EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No.: 82717 GH SINKING SPRING ASSOCIATES, L.P. Plaintiff, V. MSB PROPERTY, LLC and KLNB,LLC Defendants. DATE OF NOTICE: August 25, 2005 TO: GH Sinking Spring Associates, L.P. c/o Andrew T. Kravitz, Esquire 219 Pine Street Harrisburg, PA 17101 Attorney for Defendant, MSB Property, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO, 05-2884 CIVIL TERM IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (1.0) 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. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 717-249-3166 By: " ' - K--? PAUL J. C CI, ESQUIRE Attorney for Defendant, MSB Property, LLC EIZEN, FINEBURG & WCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No.: 82717 GH SINKING SPRING ASSOCIATES, L.P. Plaintiff, V. Attorney for Defendant, MSB Property, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 05-2884 CIVIL TERM MSB PROPERTY, LLC and KLNB,LLC Defendants. CERTIFICATE OF SERVICE I, Paul J. Cianci, hereby certify that on the date set forth below, I served on the below listed a true and correct copy of the foregoing via United States Mail, first-class, postage prepaid. GH Sinking Spring Associates, L.P. c/o Andrew T. Kravitz, Esquire Law Offices of Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 P4 l."? Date: August 25, 2005 PAUL J. C CI, ESQUIRE Attorney for Defendant, MSB Property, LLC --i- l? xi -l l" .{ GH SINKING SPRING ASSOCIATES, L.P., Plaintiff V. MSB PROPERTY, LLC, KLNB, LLC Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2884 ACTION FOR DECLARATORY JUDGMENT MOTION TO APPROVE SETTLEMENT OF INTERPLEADER AND NOW, comes Plaintiff, GH Sinking Spring Associates, L.P., by and through his attorneys, the Law Offices Stephen C. Nudel, PC and respectfully files this Motion to Approve Settlement of Interpleader and avers as follows. 1. On June 3, 2005, Plaintiff filed the current Action for Declaratory Judgment against Defendant MSB Property, LLC ("MSB") and Defendant KLNB, LLC ("KLNB"). 2. Plaintiff joinded KLNB as the result of KLNB's status of Escrow Agent in an Agreement between Plaintiff and MSB. 3. As a result of KLNB's status as Escrow Agent, KLNB is currently in possession of a deposit which is the subject of the Action for Declaratory Judgment. 4. On or about August 31, 2005, KLNB filed a Petition for Interpleader. KLNB, through its Petition is seeking the interpleading of Plaintiff and MSB. 5. The parties, Plaintiff, MSB, and KLNB, have entered into a Stipulation for the settlement of the Petition for Interpleader. The Stipulation is attached hereto has Exhibit "A" WHEREFORE, Plaintiff respectfully requests that this Honorable Court: 1. Approve the attached Stipulation; 2. Enter an Order marking the Interpleader Petition withdrawn pursuant to the terms of the Stipulation; 3. Enter an Order requiring KLNB to pay $100,000.00 into the Court; and 4. Enter an Order dismissing KLNB from this matter contingent upon the payment of the $100,000.00 into the Court and compliance with the discovery requirements of the Stipulation. Date: 11-10.05 Respectfulrly ?ubmitted, LAW OFF-IVES tF STEPHEN C. NUDEL, PC 8tepnen C. NUUel, Esquire Attorney ID 441703 Andrew T. Kravitz, Esquire Attorney ID #80142 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff EXHIBIT A GH SINKING SPRING ASSOCIATES, L.P., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. MSB PROPERTY, LLC, KLNB, LLC . NO. 05-2884 ACTION FOR . DFCLARATORY JUDGMENT Defendants STIPULATION AND NOW, comes Plaintiff, GH Sinking Spring Associates, L.P., by and through its attorneys, the Law Offices Stephen C. Nudel, PC, Defendant, MSB Property, LLC, by and through its attorney, Paul J. Cianci, Esquire, and Defendant, KLNB, LLC, by and through its attorney, Suzanne C. Hixenbaugh, Esquire, and hereby Stipulate and Agree as follows: 1. Plaintiff filed the above referenced Action for Declaratory Judgment seeking damages in the form of the payment of a deposit required to be paid by Defendant MSB to Defendant KLNB as escrow agent, pursuant to an Agreement of Sale between Plaintiff and Defendant MSB. 2. Plaintiff is seeking payment of the deposit under the default provisions of the Agreement of Sale. 3. Plaintiff filed the aforementioned action against Defendant KLNB as the result of Defendant KLNB's status as the escrow agent and holder of the deposit. 4. On or about August 31, 2005, Defendant KLNB filed a Petition for Interpleader seeking to pay the deposit into Court and seeking Defendant KLNB's dismissal from the Action for Declaratory Judgment. 5. Plaintiff and Defendant MSB have no objection to the payment of said deposit by Defendant KLNB into Court. 6. Plaintiff and Defendant MSB agree that Defendant KLNB has no interest in the deposit, other than as the designated escrow agent. 7. Plaintiff and Defendant MSB agree that Defendant KLNB is not subject to liability to Plaintiff or to Defendant MSB with respect to the subject matter of the Action for Declaratory Judgment outside that of the hoiden of the deposit. 8. Plaintiff and Defendant MSB agree that Defendant KLNB can be dismissed from this action upon the payment of the deposit and any accrued interest into Court. 9. Defendant MSB acknowledges that Defendant MSB paid $100,000.00 to Defendant KLNB as the deposit. 10. Defendant KLNB agrees to pay $100,000.00, plus interest earned on the same, into Court. 2 w , 11. Additionally, Defendant KLNB agrees to provide the Plaintiff and Defendant MSB with a copy of the escrow agreement between Defendant KLNB and Defendant MSB, any correspondence between Defendant MSB and Defendant KLNB regarding the deposit, records showing the payment of the deposit into Defendant KLNB's escrow account, and all records from the escrow account related to the interest earned on the deposit. It is agreed that Defendant KLNB will provide the requested records within twenty (20) days from the date of this Stipulation. 12. The parties request the Court enter the appropriate order reflecting and enforcing the terms of this Stipulation. LAW OFFICPS STEPHEN C. NUDEL, PC Date: 10-(3- 05 S'Cephen C. Nt(.c. , Esquire Attorney for Plaintiff Date: Paul J. ¢ anci, Esquire Attorney- or Defendant MSB Date: calt/ l(t? Su Zan e C. Hixenbaugh, Esquire Attorney for Defendant KLNB 3 GH SINKING SPRING IN THE COURT OF COMMON PLEAS ASSOCIATES, L.P., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 05-2884 MSB PROPERTY, LLC, KLNB, LLC ACTION FOR DECLARATORY JUDGMENT Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Paul J. Cianci, Esquire Eizen Fineburg & McCarthy Two Commerce Square 34th Floor 2001 Market Street Philadelphia, PA 19103 Suzanne C. Hixenbaugh, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Date: Attorney ID #80142 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Plaintiff .., r-, ? ? -+s ? t'? ,_ _n .._ .,.,.r. ...- _ i C7 u?+ ` = ; i ". i ?. =< ? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten AND SUBMITTED IN DUPLICATE) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CAPTION OF CASE (entire caption must be stated in full) GH SINKING SPRINGS, LLC Plaintiff Vs. MSB PROPERTY, LLC KLNB, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2884 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Preliminary Objections to Defendant MSB's Answer 2. Identify counsel who will argue case: (a) for Plaintiff(s): Andrew T. Kravitz, Esquire Law Offices Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 (b) Defendant(s): Paul J. Cianci, Esquire Eizen Fineburg & McCarthy Two Commerce Square 34th Floor 2001 Market Street Philadelphia, PA 19103 Attorney for Defendant MSB Suzanne C. Hixenbaugh, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carisle, PA 17013 Attorney for Defendant KLNB 3. Within two days, I will notify all parties that this case has been listed for argument. 4. Argument Court Date: January 11, 2006 Date: "Z XIM Andrew T. Kravitz, Esq Attorney ID #80142 Law Offices Stephen C. 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Plaintiff re Nudel, PC r7 -fl r .? N .. ` ' _? C NOV 1005 i GH SINKING SPRING ASSOCIATES, L.P., Plaintiff v. MSB PROPERTY, LLC, KLNB, LLC Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2884 ACTION FOR DECLARATORY JUDGMENT (Proposed) ORDER AND NOW, this y6` day of X4rc„G.a/ , 2005, pursuant to the Stipulation of the parties, Defendant KLNB is ordered to pay the deposit referenced into the Court, to be so held until further order of this Court. Defendant KLNB is ordered to provide the records pursuant to the Stipulation. After said deposit and compliance with this Order to provide records Defendant KLNB will be dismissed from this matter, the Petition for Interpleader filed by Defendant KLNB will be marked as withdrawn, and the caption to the Action for Declaratory Judgment will be amended to exclude Defendant KLNB. By the Court: U? ?? r 17 All, ii , EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No.: 82717 GH SINKING SPRING ASSOCIATES, L.P. Attorney for Defendant, MSB Property, LLC COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA V. NO. 05-2884 CIVIL TERM MSB PROPERTY, LLC and KLNB,LLC Defendants. PRAECIPE TO STRIKE PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE COURT: Defendant, MSB Property, LLC ("MSB"), hereby requests the Court to strike Plaintiff's Preliminary Objections to MSB's Counterclaim, pursuant to Local Rule 210-6, because Plaintiff did not file a brief in support of its objections within the time required by Local Rule 210-6. Respectfully submitted, EIZEN FINEBURG & McCARTHY, P.C. Date: January 3, 2006 By: pew C "t `^- PAUL J. CI CI, ESQUIRE Attorney for Defendant, MSB Property, LLC , , r , EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Paul J. Cianci, Esquire Identification No.: 82717 GH SINKING SPRING ASSOCIATES, L.P. Attorney for Defendant, MSB Property, LLC COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA V. MSB PROPERTY, LLC and KLNB,LLC NO. 05-2884 CIVIL TERM ANSWER, NEW MATTER AND COUNTERCLAIM Defendants. CERTIFICATE OF SERVICE I, Paul J. Cianci, hereby certify that on the date set forth below, I served on the below listed counsel via first class mail a true and correct copy of the foregoing Praecipe To Strike Plaintiffs Preliminary Objections. Andrew T. Kravitz, Esquire Law Offices of Stephen C. Nude, PC 219 Pine Street Harrisburg, PA 17101 Date: January 3, 2006 PAUL J. CIA I, ESQUIRE Attorney for Defendant, MSB Property, LLC GH SINKING SPRING IN THE COURT OF COMMON PLEAS ASSOCIATES, L.P., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V4 NO. 05-2884 MSB PROPERTY, LLC, and KLNB, LLC ACTION FOR Defendants DECLARATORY JUDGMENT RESPONSE TO PRAECIPE TO STRIKE PLAINTIFF'S PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff, GH Sinking Spring Associates, L.P., by and through its attorneys, Law Offices Stephen C. Nudel, PC, and respectfully files this Response to Defendant MSB Property, LLC's ("MSB") Praecipe to Strike Plaintiff's Preliminary Objections ("Praecipe") as follows: PLAINTIFF HAS COMPLIED WITH LOCAL RULES OF COURT 1. The Plaintiff's Preliminary Objections are scheduled for Argument Court on January 11, 2006. 2. On December 31, 2005, twelve (12) days prior to argument, pursuant to Rules of Court of the Ninth Judicial District, Cumberland County, Rule 1028(c), Plaintiff served Defendant MSB, by first class mail, Plaintiff's Brief in Support of Plaintiff's Preliminary Objections. 3. Defendant MSB filed its Praecipe on or about January 3, 2006. 4. Defendant sites "Local Rule 210-6" as the basis for its Praecipe to Strike Plaintiff's Objections. The requirements set forth in old "Local Rule 210-6" related to the service of briefs by the moving party are now set forth in Rule 1028(c)(5). 5. Defendant has failed to state a claim to Strike Plaintiff's Preliminary Objections, as Plaintiff has fully complied with Rule 1028(c)(5) by serving upon Counsel for Defendant MSB Plaintiff's Brief twelve (12) days prior to the date set for Argument. WHEREFORE, Plaintiff respectfully requests that this Court find that Plaintiff has complied with all applicable "Local Rules" and deny Defendant MSB's Praecipe. DEFENDANT'S PRAECIPE DOES NOT COMPLY WITH LOCAL RULE 6. Paragraphs 1 through 5 are incorporated herein as if set forth at length. 7. Defendant MSB's Praecipe to Strike, although not titled as such, is clearly a motion, and therefore must comply with the Rules of Court of Cumberland County, Rule 208.3(a). 8. Rule 208.3(a)(9) states that "[a]ll motions and petitions shall contain a paragraph indicating that the concurrence of any opposing counsel of record was sought and the response of said counsel." 9. Defendant's Praecipe does not contain the paragraph required under Rule 208.3(a)(9). 10. Defendant MSB did not contact Plaintiff's Counsel regarding Defendant MSB's Praecipe. WHEREFORE, Plaintiff respectfully requests that this Court dismiss Defendant MSB's Praecipe for failing to comply with Rule 208.3 (a) (9) . Respectfully submitted, :UFIC S STEPHEN C. NUDEL, PC Date: ,!-? S h n C. Nudel, Esquire Attorney ID #41703 Andrew T. Kravitz, Esquire Attorney ID #80142 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff GH SINKING SPRING IN THE COURT OF COMMON PLEAS ASSOCIATES, L.P., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 05-2884 MSB PROPERTY, LLC, and KLNB, LLC ACTION FOR Defendants DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Paul J. Cianci, Esquire Eizen, Fineburg & McCarthy Two Commerce Square 34"" Street 2001 Market Street Philadelphia, PA 19103 :LAWew 0 FILES STEPHEN C. NUDEL, PC l Date: T. Kra tz, Esquire Attorney ID #80142 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Plaintiff ? ti,? i t7 <'i -t7 ..... {?,,,, C i __ ("aT "?? GH SINKING SPRING ASSOCIATES, L.P., Plaintiff V. MSB PROPERTY, LLC, and KLNB, LLC Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2884 ACTION FOR . DECLARATORY JUDGMENT RESPONSE TO PRAECIPE TO STRIKE PLAINTIFF'S PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff, GH Sinking Spring Associates, L.P., by and through its attorneys, Law Offices Stephen C. Nudel, PC, and respectfully files this Response to Defendant MSB Property, LLC's ("MSB") Praecipe to Strike Plaintiff's Preliminary Objections ("Praecipe") as follows: PLAINTIFF HAS COMPLIED WITH LOCAL RULES OF COURT 1. The Plaintiff's Preliminary Objections are scheduled for Argument Court on January 11, 2006. 2. On December 31, 2005, twelve (12) days prior to argument, pursuant to Rules of Court of the Ninth Judicial District, Cumberland County, Rule 1028(c), Plaintiff served Defendant MSB, by first class mail, Plaintiff's Brief in Support of Plaintiff's Preliminary Objections. 3. Defendant MSB filed its Praecipe on or about January 3, 2006. 4. Defendant sites "Local Rule 210-6" as the basis for its Praecipe to Strike Plaintiff's Objections. The requirements set forth in old "Local Rule 210-6" related to the service of briefs by the moving party are now set forth in Rule 1028(c)(5). 5. Defendant has failed to state a claim to Strike Plaintiff's Preliminary Objections, as Plaintiff has fully complied with Rule 1028(c)(5) by serving upon Counsel for Defendant MSB Plaintiff's Brief twelve (12) days prior to the date set for Argument. WHEREFORE, Plaintiff respectfully requests that this Court find that Plaintiff has complied with all applicable "Local Rules" and deny Defendant MSB's Praecipe. DEFENDANT'S PRAECIPE DOES NOT COMPLY WITH LOCAL RULE 6. Paragraphs 1 through 5 are incorporated herein as if set forth at length. 7. Defendant MSB's Praecipe to Strike, although not titled as such, is clearly a motion, and therefore must comply with the Rules of Court of Cumberland County, Rule 208.3(a). 8. Rule 208.3(a)(9) states that "[a]ll motions and petitions shall contain a paragraph indicating that the concurrence of any opposing counsel of record was sought and the response of said counsel." 9. Defendant's Praecipe does not contain the paragraph required under Rule 208.3(a)(9). 10. Defendant MSB did not contact Plaintiff's Counsel regarding Defendant MSB's Praecipe. Plaintiff respectfully requests that this Court dismiss Defendant MSB,s Praecipe for failing to comply with Rule 208.3(a)(9). Respectfully submitted, LAW FIC S STEP/HEN C. NUDEL, PC Date: S h n C. Nudel, Esquire Attorney ID #41703 Andrew T. Kravitz, Esquire Attorney ID #80142 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff GH SINKING SPRING ASSOCIATES, L.P., Plaintiff V. MSB PROPERTY, LLC, and KLNB, LLC Defendants . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2884 ACTION FOR DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Paul J. Cianci, Esquire Eizen, Fineburg & McCarthy Two Commerce Square 34th Street 2001 Market Street Philadelphia, PA 19103 LAW 0 FI ES STEPHEN C. NUDEL, PC Date: rew T. Kra tz, Esquire Attorney ID #80142 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Plaintiff GH SINKING SPRING ASSOCIATES, L.P. COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA V. NO. 05-2884 CIVIL TERM MSB PROPERTY, LLC and KLNB,LLC Defendants. MOTION AND NOW, comes Defendant, KLNB, LLC by and through its attorneys, Saidis, Flower & Lindsay, PC, and respectfully files this Motion to dismiss Defendant KLNB, LLC from this action pursuant to satisfaction of conditions provided in a Stipulation filed with this court on November 15, 2005 and in support of avers as follows: Pursuant to an Order dated November 28, 2005, Defendant KLNB was ordered to pay a one hundred thousand dollar deposit into court. 2. Defendant KLNB has paid such deposit into Court. Defendant KLNB was to provide Plaintiff and Defendant MSB PROPERTY, LLC with the following records: a. Correspondence dated February 25, 2005 between David W. Greenman on behalf of MSB Property, LLC, attached hereto and incorporated hereby as Exhibit "A"; b. A series of emails dated February 23 and 24, 2005 to Kathy McGee, Assistant Controller of KLNB from Antonia J. Kies and Alan Garubba, including attached closing terms, attached hereto and incorporated hereby as Exhibit `B'; and c. Account statements from KLNB beginning January 20, 2005 and ending October 31, 2005, attached hereto and incorporated hereby as Exhibit "C". 4. Defendant KLNB has provided such records to Plaintiff and Defendant MSB PROPERTY, LLC, as indicated by the attached Certificate of Service. WHEREFORE, KLNB, LLC respectfully requests this Honorable Court enter an Order dismissing KLNB, LLC from this matter. Respectfully Submitted, J1, FLOWER & LINDSAY SAID Attorneys for Defendant, KLNB, LLC By: Suzanne C. Hixenbaugh, Esquire ID No. 91641 GH SINKING SPRING ASSOCIATES, L.P. COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA V. NO. 05-2884 CIVIL TERM MSB PROPERTY, LLC and KLNB,LLC Defendants. CERTIFICATE OF SERVICE I, Suzanne C. Hixenbaugh, hereby certify that on the date set forth below, I served on the below listed counsel via first class mail a true and correct copy of the records referenced in the Stipulation between the parties filed November 15, 2005, pursuant to an Order of Court dated November 28, 2005. Andrew T. Kravitz, Esquire Law Offices of Stephen C. Nudel, PC 21.9 Pine Street Harrisburg, PA 17101 Paul J. Cianci, Esquire Eizen, Fineburg & McCarthy, PC Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Date: December 28, 2005 L tc b Saidi lower & Lindsay, Attorneys for Defendant, KLNB, LLC By: Suzanne C. Hixenbaugh, Esquire ID No. 91641 ???,?1? A 6CQ ENTERPRISE COUNSEL GROUP David W Greenman A L. Corporation A Profnaefanal Carpuratlan February 25, 2005 state Ba No. 163394 VIA FAX & FEDERAL EXPRESS GH Sinking Springs Associates, L.P. c/o Elysian Partners, L.P. 20 Erford Road, Suite 10 Lemoyne, PA 17043 Elysian Partners, L.P. 20 Erford Road, Suite 10 Lemoyne, PA 17043 Attn: Alan P. Garubba, General Counsel RE: Agreement of Sale (the "Agreement") by and between GH Sinking Spring Associates, L.P. ("Seller") and MSB Property LLC ("Purchaser") Dear Mr. Garubba: I am writing as counsel to and on behalf of Purchaser in connection with the Agreement and your February 24, 2005 letter to Purchaser regarding the same. Although I have not been able to yet carefully review the file or meet with Purchaser regarding your letter, you are hereby advised that Purchaser disputes your version of the facts as set forth in your letter. Purchaser did execute and deliver to Seller the Amendment that you referred to on page 2 of your letter, and Purchaser also timely terminated the Agreement pursuant to that Amendment. Purchaser is hopeful that Purchaser and Seller will be able to resolve this matter amicably. Purchaser reiterates that it timely terminated the Agreement and accordingly its Deposit should be returned to it. By copy of this letter to KLNB, LLC, Purchaser hereby demands KLNB, LLC to promptly deliver Purchaser's deposit to Purchaser. Yours very truly, David W. Greenman cc: Stewart Weston cc: KNLB, LLC 100 West Road, Suite 505 Baltimore, Maryland 21204 Attn: Kevin Barrett 18800 Von Karman • Suite 100 • Irvine, California 92612 • Phone 949-224-0335 • Facsimile 949-224-0339 ?x????? ? ___---. Paget of2 Kathy McGee From: Kevin Barrett Sent: Thursday, February 24, 2005 9:53 AM To: Kathy McGee Subject: FW: Sinking Spring Marketplace, East Penn Ave, PA Kathy---FYI--I told them we would hold the escrow until further notice. KB -----Original Message----- From: Alan Garubba [mailto:agarubba@elysianpartners.com] Sent: Thursday, February 24, 2005 9:33 AM To: Kevin Barrett Cc: Philip Markovitz; Agrass2140@aol. com Subject: RE: Sinking Spring Marketplace, East Penn Ave, PA Kevin: Do not release the Escrow. It is our position that the purported termination came after the expiration of the Due Diligence Period. I will copy you on a letter explaining our position to the Purchaser which will go out today. ----Original Message----- From: Kevin Barrett [mailto:kbarrett@KLNB.com] Sent: Thursday, February 24, 2005 9:25 AM To: Alan Garubba (E-mail); Phil Markovitz (E-mail) Subject: FW: Sinking Spring Marketplace, East Penn Ave, PA Gentlemen--obviously I will not do anything until I hear from you. -----Original Message----- From: Kevin Barrett Sent: Thursday, February 24, 2005 9:24 AM To: Kathy McGee Subject: RE: Sinking Spring Marketplace, East Penn Ave, PA Kathy--Please wait to hear from me before you do anything. Thanks. -----Original Message----- From: Kathy McGee Sent: Thursday, February 24, 2005 9:19 AM To., Kevin Barrett Subject: FW: Sinking Spring Marketplace, East Penn Ave, PA Importance: High FYI - it looks like the deal has fallen through. Unless I hear otherwise from you, I will close the escrow today and return the funds. -----Original Message----- From: Kies, Antonia [mailto:AKies@marcusmillichap.com] Sent: Wednesday, February 23, 2005 8:17 PM To: Kathy McGee Cc: David Greenman; Ensbury, Martin; Weston, Stewart Subject: Sinking Spring Marketplace, East Penn Ave, PA Importance: High Kathy, ')ndnnnC, Page 2 of 2 Please see attached document. As of 5pm of Today, Wednesday, February, 23, 2005, we have not received response from the Seller with regards to this document. Consider this our formal notice of cancellation. Please send us any documentation necessary to proceed with cancellation and the return of our earnest money deposit. Antonia J. Kies Office of Stewart Weston & Martin Ensbury Marcus & Millichap One World Trade Center Suite 1900 Long Beach, CA 90831 562-436-5800 Office 562-733-4379 Direct 562-495-2111 Fax From: Weston, Stewart Sent: Wednesday, February 23, 2005 4:58 PM To: Kies, Antonia Subject: FW: Sinking Spring Stewart I. Weston Marcus & Millichap From: Weston, Stewart Sent: Tuesday, February 22, 2005 2:03 PM To: 'Alan Garubba' Cc: 'David Greenman'; Ensbury, Martin Subject: Sinking Spring Alan Attached is an outline of the terms under which we will close. Stewart I. Weston Marcus & Millichap One World Trade Center Suite 1900 Long Beach, CA 90831-1900 Tel: 562 436 5800, Ext. 304 Fax: 562 495 2111 1nnnnnc Pagel of 2 Kathy McGee From: Kies, Antonia [AKies@marcusmillichap.com] Sent: Wednesday, February 23, 2005 8:17 PM To: Kathy McGee Cc: David Greenman; Ensbury, Martin; Weston, Stewart Subject: Sinking Spring Marketplace, East Penn Ave, PA Importance: High Kathy, Please see attached document. As of 5pm of Today, Wednesday, February, 23, 2005, we have not received response from the Seller with regards to this document. Consider this our formal notice of cancellation. Please send us any documentation necessary to proceed with cancellation and the return of our earnest money deposit. Antonia I Kies Office of Stewart Weston & Martin Ensbury Marcus & Millichap One World Trade Center Suite 1900 Long Beach, CA 90831 562-436-5800 Office 562-7334379 Direct 562-495-2111 Fax From: Weston, Stewart Sent: Wednesday, February 23, 2005 4:58 PM To: Kies, Antonia Subject: FW: Sinking Spring Stewart 1. Weston Marcus & Millichap From: Weston, Stewart Sent: Tuesday, February 22, 2005 2:03 PM To: 'Alan Garubba' Cc: 'David Greenman'; Ensbury, Martin Subject: Sinking Spring Alan Attached is an outline of the terms under which we will close. Stewart I. Weston Marcus & Millichap One World Trade Center Suite 1900 Long Beach, CA 90831-1900 Tel: 562 436 5800, Ext. 304 7Mnnnnc Page 2 of 2 Fax: 562 495 2111 2/24/2(1(15 SINKING SPRING February 22, 2005 Alan We are prepared to purchase the subject property, subject to the following: 1. Seller to credit buyer $195,000 for parking lot repairs, which is reflected in the net to seller figures below. 2. Seller to credit buyer $200,000 for expense adjustments, which is reflected in the net to seller figures below. (Expense discrepancy for Insurance, Maintenance, Repairs, and Snow Removal & Property Taxes) based on actual vs. projections 3. Seller to hold back $215,000 in Escrow as described below 4. Closing shall occur with in 30 days from final loan assumption approval & New loan approval 5. Buyer's deposit shall be refundable until loans are approved, at which time; the buyer's deposit will become non refundable 6. CAD drawings need to be received before the close of escrow Current purchase price Plus + Total Acquisition cost to buyer Contract 1 - Refiners Market Minus (-) Net to Seller Contract 2 - Land - Net to Seller $7,525,000 $ 315,000 prepay fee & broker fee $7,840,000 $4,522,000 $ 359,000 portion of pre pay & broker fee & parking lot & credit $4,163,000 $ 45,000 all cash to seller Contract 3 - shop, Arby's & redners $3,272,500 Minus (-) $ 300,500 portion of pre pay & broker fee & parking lot & credit Net to Seller $2,972,000 Total net to seller $7,180,000 from $7,525,000 **Blockbuster is paying nearly $5.001 square foot more then the market and more then the last four leases executed on site. Therefore we are asking the seller for the following Seller to hold back $215,000 from sale proceeds in an escrow account until 9/1/05 or the date Blockbuster chooses to exercise their option to vacate or renew their lease. In the event blockbuster notifies owner in writing of the intent to move from the premises upon the lease expiration date, all funds held in escrow shall be paid to buyer. In the event Blockbuster renews their lease at the current rent level then the funds held in escrow shall be returned to the seller. In the event Blockbuster renegotiates their lease to market, the funds held in escrow shall be paid to buyer based on the current rent minus the new rent level and the difference should have a cap rate of 9% used to calculate the amount of the credit Example: Current rent is $17.28 x 4800 sq ft = $82,944 New rent rate is $15.00 x 4800 sq It = $72,000 Difference in income $10,944 @ 9% cap rate = $121,600 I believe we have conceptual agreement upon the foregoing; upon confirmation of the same from you, I will have our counsel prepare a short amendment incorporating the same. If we do not have a conceptual agreement upon the foregoing, and if Seller is not willing to again extend the Buyer's due diligence/feasibility period pending ironing out any further details, this shall constitute Buyer's termination of the Agreement and demand for the prompt return of Buyer's earnest money deposit. E x?11I 0 SUNTRUST BANK P 0 BOX 622227 ORLANDO FL 32862-2227 SUNTRUST Page 1 of 2 66/EOD/0175/0 /75 1000027195220 01/31/2005 Account Statement KLNB LLC SINKING SPRING 100 WEST RD STE 505 TOWSON MD 21204-2356 Questions? Please call 1-800-786-8787 GET MORE CONTROL, SAVINGS AND REWARDS WITH THE SUNTRUST VISA BUSINESS CARD! APPLY TODAY AND TRANSFER HIGH BALANCES TO A LOW RATE FOR SIX MONTHS! GO TO ANY SUNTRUST BRANCH OR APPLY BY PHONE AT 1-800-752-2515. Account Account Type Account Number Statement Period Taxpayer ID Summary BUS MONEY MARKET PERFORMANCE 1000027195220 01120/2005 - 01/31/2005 20-0308788 Description Amount Description Amount Beginning Balance $.00 Average Balance $100,004.08 Deposits/Credits $100,049.00 Average Collected Balance $100,004.08 Checks $.00 Number of Days in Statement Period 12 Withdrawals/Debits $.00 Annual Percentage Yield Earned 1.50% Ending Balance $100,049.00 Interest Paid Year to Date $49.00 Deposits/ Date Amount Serial # Date Amount Serial # Credits 01/20 100,000.00 I DEPOSIT 01131 49.00 INTEREST PAID THIS STATEMENT THRU 01/31 Deposits/Credits: 2 Total Items Deposited: 1 Balance Date Balance Collected Date Balance Collected Activity I Balance Balance History 01/20 100,000.00 100,000.00 01131 100,049.00 100,049.00 236318 Member FDIC Continued on next page SUNTRUST BANK P 0 BOX 622227 ORLANDO FL 32862-2227 SUNTRUST Page 1 of 2 66/E00/0175/0 /75 1000027195220 -? 02/28/2005 Account Statement KLNB LLC SINKING SPRING 100 WEST RD STE 505 TOWSON MD 21204-2356 Questions? Please call 1-800-786-8787 DON'T CLICK AND TELL. LEARN MORE ABOUT ONLINE FRAUD, VISIT SUNTRUST.COM/ALERT Account Account Type Account Number Statement Period Taxpayer ID Summary BUS MONEY MARKET PERFORMANCE 1000027195220 02/01/2005 - 02/28/2005 20-0308788 Description Amount Description Beginning Balance $100,049.00 Average Balance Deposits/Credits $114.42 Average Collected Balance Checks $.00 Number of Days in Statement Period Withdrawals/Debits $.00 Annual Percentage Yield Earned Ending Balance $100,163.42 Interest Paid Year to Date Amount $100,053.08 $100,053.08 28 1.50% $163.42 Deposits/ Date Amount Serial # Description Credits 02/28 114.42 INTEREST PAID THIS STATEMENT THRU 02/28 Deposits/Credits: 1 Total Items Deposited: 0 Balance Date Balance Collected Date Balance Collected Activity Balance Balance History 02/01 100,049.00 100,049.00 02/28 100,163.42 100,163.42 239675 Member FDIC Continued on next page SUNTRUST BANK P 0 BOX 622227 ORLANDO FL 32862-2227 SUNTRUST KLNB LLC SINKING SPRING 100 WEST RD STE 505 TOWSON MD 21204-2356 Page 1 of 2 66/E00/0175/0 /75 1000027195220 03/31/2005 Account Statement Questions? Please call 1-800-786-8787 THANK YOU FOR BANKING WITH SUNTRUST. TO LEARN MORE ABOUT HOW SUNTRUST CAN MEET YOUR FINANCIAL SERVICES NEEDS, PLEASE VISIT OUR WEB SITE AT WWW.SUNTRUST.COM. Account Account Type Summary BUS MONEY MARKET PERFORMANCE Account Number Statement Period 1000027195220 03/01/2005-03/31/2005 TaxpayerlD 20-0308788 Description Amount Description Beginning Balance $100,163.42 Average Balance Deposits/Credits $126.83 Average Collected Balance Checks $.00 Number of Days in Statement Period Withdrawals/Debits $.00 Annual Percentage Yield Earned Ending Balance $100,290.25 Interest Paid Year to Date Amount $100,167.51 $100,167.51 31 1.50% $290.25 Deposits/ Date Amount Serial # Description Credits 03/31 126.83 INTEREST PAID THIS STATEMENT THRU 03/31 Deposits/Credits: 1 Total Items Deposited: 0 Balance Date Balance Collected Date Balance Collected Activity Balance Balance History 03/01 100,163.42 100,163.42 03/31 100,290.25 100,290.25 236484 Member FDIC Continued on next page SUNTRUST BANK P 0 BOX 622227 ORLANDO FL 32862-2227 SuNTRUST Page 1 of 2 66/E00/0175/0 /75 1000027195220 ?- 04/30/2005 Account Statement KLNB LLC SINKING SPRING 100 WEST RD STE 505 TOWSON MD 21204-2356 Questions? 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VISIT SUNTRUST.COM/ALERT Account Account Type Account Number Statement Period Summary BUS MONEY MARKET PERFORMANCE 1000027195220 04/01/2005 - 04/30/2005 Description Beginning Balance Deposits/Credits Checks Withdrawals/Debits Ending Balance Amount Description $100,290.25 Average Balance $124.54 Average Collected Balance $.00 Number of Days in Statement Period $.00 Annual Percentage Yield Earned $100,414.79 Interest Paid Year to Date TaxpayerlD 20-0308788 Amount $100,298.55 $100,298.55 30 1.52% $414.79 Deposits/ Date Amount Serial # Description Credits 04/29 124.54 INTEREST PAID THIS STATEMENT THRU 04130 Deposits/Credits: 1 Total items Deposited: 0 Balance Date Balance Collected Date Balance Collected Activity Balance Balance History 04/01 100,290.25 100,290.25 04/29 100,414.79 100,414.79 304219 Member FDIC Continued on next page SUNTRUST BANK P 0 BOX 622227 ORLANDO FL 32862-2227 SUNT RUST Page 1 of 2 66/E00/0175/0 /75 1000027195220 ?- 05/31/2005 Account Statement KLNB LLC SINKING SPRING 100 WEST RD STE 505 TOWSON MD 21204-2356 Questions? Please call 1-800-786-8787 DID YOU KNOW YOUR HOME EQUITY CAN BE USED FOR HOME IMPROVEMENTS, EDUCATION, DEBT CONSOLIDATION, CARS AND VACATIONS? WHY NOT TAKE ADVANTAGE OF YOUR EQUITY, TODAYS GREAT RATES AND SUNTRUST'S FAST APPROVALS ON A HOME EQUITY LINE? CONTACT US AT 800-SUNTRUST, SUNTRUST.COM OR A BRANCH FOR DETAILS. EQUAL HOUSING LENDER. Account Account Type Account Number Statement Period Taxpayer ID Summary BUS MONEY MARKET PERFORMANCE 100002 7195220 05/01/2005 -05/31/2005 20-0308788 Description Amount Description Amount Beginning Balance $100,414.79 Average Balance $100,419.13 Deposits/Credits $134.73 Average Collected Balance $100,419.13 Checks $.00 Number of Days in Statement Period 31 Withdrawals/Debits $.00 Annual Percentage Yield Earned 1.59% Ending Balance $100,549.52 Interest Paid Year to Date $549.52 Deposits/ Date Amount Serial # Description Credits 05/31 134.73 INTEREST PAID THIS STATEMENT THRU 05/31 Deposits/Credits: 1 Total Items Deposited: 0 Balance Date Balance Collected Date Balance Collected Activity Balance Balance History 05/01 100,414.79 100,414.79 05/31 100,549.52 100,549.52 312936 Member FDIC Continued on next page SUNTRUST BANK P 0 BOX 622227 ORLANDO FL 32862-2227 SuNTRuST- Page 1 of 2 66/EOD/0175/0 /75 1000027195220 06/30/2005 Account Statement KLNB LLC SINKING SPRING 100 WEST RD STE 505 TOWSON MD 21204-2356 Questions? Please call 1-800-786-8787 THANK YOU FOR BANKING WITH SUNTRUST. TO LEARN MORE ABOUT HOW SUNTRUST CAN MEET YOUR FINANCIAL SERVICES NEEDS, PLEASE VISIT OUR WEB SITE AT WWW.SUNTRUST.COM Account Account Type Account Number Statement Period Summary BUS MONEY MARKET PERFORMANCE 1000027195220 06/01/2005 - 06/30/2005 Description Amount Description Beginning Balance $100,549.52 Average Balance Deposits/Credits $145.72 Average Collected Balance - Checks $.00 Number of Days in Statement Period Withdrawals/Debits $.00 Annual Percentage Yield Earned Ending Balance $100,695.24 Interest Paid Year to Date TaxpayerlD 20-0308788 Amount $100,554.37 $100,554.37 30 1.78% $695.24 -.Deposits/ Date Amount Serial# Description Credits 06/30 145.72 INTEREST PAID THIS STATEMENT THRU 06/30 Deposits/Credits: 1 Total Items Deposited: 0 Balance Date Balance Collected Date Balance Collected Activity I Balance Balance History 06/01 100,549.52 100,549.52 06/30 100,695.24 100,695.24 316233 Member FDIC Continued on next page SUNTRUST BANK P 0 BOX 622227 ORLANDO FL 32862-2227 SUNTRUST` Account Summary KLNB LLC SINKING SPRING 100 WEST RD STE 505 TOWSON MD 21204-2356 Page 1 of 2 66/E00/0175/0 /75 1000027195220 07/31/2005 Account Statement Questions? Please call 1-800-786-8787 THANK YOU FOR BANKING WITH SUNTRUST. TO LEARN MORE ABOUT HOW SUNTRUST CAN MEET YOUR FINANCIAL SERVICES NEEDS, PLEASE VISIT OUR WEB SITE AT WWW.SUNTRUST.COM MORE! ACTIVATE YOUR VISA EXTRAS ACCOUNT ON YOUR CURRENT SUNTRUST VISA BUSINESS CARD TODAY! GO TO WWW.VISA.COM/EXTRAS, OR CALL TOLL-FREE 800.960.8472. Account Type Account Number Statement Period Taxpayer ID BUS MONEY MARKET PERFORMANCE 1000027195220 07/0112005 - 07/31/2005 20-0308788 Description Beginning Balance Deposits/Credits Checks Withdrawals/Debits Ending Balance Amount Description Amount $100,695.24 Average Balance $100,710.15 $154.14 Average Collected Balance $100,710.15 $.00 Number of Days in Statement Period 31 $.00 Annual Percentage Yield Earned 1.82% $100,849.38 Interest Paid Year to Date $849.38 Deposits/ Date Amount Serial # Description Credits 07/29 154.14 INTEREST PAID THIS STATEMENT THRU 07/31 Deposits/Credits: 1 Total Items Deposited: 0 Balance Date Balance Collected Date Balance Collected Activity Balance I Balance History 07/01 100,695.24 100,695.24 07/29 100,849.38 100,849.38 321817 Member FDIC Continued on next page SUNTRUST BANK P 0 BOX 622227 ORLANDO FL 32862-2227 pll??? SU11fI'RUST' KLNB LLC SINKING SPRING 100 WEST RD STE 505 TOWSON MD 21204-2356 Page 1 of 2 66/E00/0175/0 /75 1000027195220 08/31/2005 Account Statement Questions? Please call 1-800-786-8787 THANK YOU FOR BANKING WITH SUNTRUST. TO LEARN MORE ABOUT HOW SUNTRUST CAN MEET YOUR FINANCIAL SERVICES NEEDS, PLEASE VISIT OUR WEB SITE AT WWW.SUNTRUST. COM Account Account Type Account Number Statement Period Taxpayer ID Summary BUS MONEY MARKET PERFORMANCE 1000027195220 08/01/2005 - 08/31/2005 20-0308788 Description Amount Description Amount Beginning Balance $100,849.38 Average Balance $100,854.44 Deposits/Credits $156.86 Average Collected Balance $100,854.44 Checks $.00 Number of Days in Statement Period 31 Withdrawals/Debits $.00 Annual Percentage Yiefd Earned 1.85% Ending Balance $101,006.24 Interest Paid Year to Date $1,006.24 Deposits/ Date Amount Serial # Description Credits 08/31 156.86 INTEREST PAID THIS STATEMENT THRU 08/31 Deposits/Credits: 1 Total Items Deposited: 0 Balance Date Balance Collected Date Balance Collected Activity I Balance Balance History 08101 100,849.38 100,849.38 08/31 101,006.24 101,006.24 323351 Member FDIC Continued on next page SUNTRUST BANK P 0 BOX 622227 ORLANDO FL 32862-2227 SUNTRUSY Page 1 of 2 66/E00/0175/0 /75 1000027195220 09/30/2005 Account Statement KLNB LLC SINKING SPRING 100 WEST RD STE 505 TOWSON MD 21204-2356 Questions? Please call 1-800-786-8787 WHAT NEW EQUIPMENT DOES YOUR BUSINESS NEED? NOW'S THE TIME. ASK ABOUT OUR GREAT RATES ON TERM LOANS. STOP BY YOUR NEAREST SUNTRUST BRANCH OR CALL 877-370-5108. LOANS SUBJECT TO CREDIT APPROVAL. Account Account Type Account Number Statement Period Taxpayer ID Summary BUS MONEY MARKET PERFORMANCE 1000027195220 09/01/2005 - 09/30/2005 20-0308788 Description Amount Description Amount Beginning Balance $101,006.24 Average Balance $101,011.30 Deposits/Credits $152.04 Average Collected Balance $101,011.30 Checks $.00 Number of Days in Statement Period 30 Withdrawals/Debits $.00 Annual Percentage Yield Earned 1.85% Ending Balance $101,158.28 Interest Paid Year to Date $1,158.28 Deposits/ Date Amount Serial # Description Credits 09/30 152.04 INTEREST PAID THIS STATEMENT THRU 09/30 Deposits/Credits: 1 Total Items Deposited: 0 Balance Date Balance Collected Date Balance Collected Activity I Balance Balance History 09/01 101,006.24 101,006.24 09/30 101,158.28 101,158.28 323890 Member FDIC Continued on next page SUNTRUST BANK P O BOX 622227 ORLANDO FL 32862-2227 p1l10/ SUN RUST- Page 1 of 2 661E001017510 /75 1000027195220 ?- 10/31/2005 Account Statement KLNB LLC SINKING SPRING 100 WEST RD STE 505 TOWSON MD 21204-2356 Questions? Please call 1-800-786-8787 THANK YOU FOR BANKING WITH SUNTRUST. TO LEARN MORE ABOUT HOW SUNTRUST CAN MEET YOUR FINANCIAL SERVICES NEEDS, PLEASE VISIT OUR WEB SITE AT WWW.SUNTRUST.COM Account Account Type Account Number Statement Period Taxpayer ID Summary BUS MONEY MARKET PERFORMANCE 1000027195220 10/01/2005 - 10/31/2005 20-0308788 Description Amount Description Amount Beginning Balance $101,158.28 Average Balance $101,163.35 Deposits/Credits $157.34 Average Collected Balance $101,163.35 Checks $.00 Number of Days in Statement Period 31 Withdrawals/Debits $.00 Annual Percentage Yield Earned 1.85% Ending Balance $101,315.62 Interest Paid Year to Date $1,315.62 Deposits/ Date Amount Serial # Description Credits 10/31 157.34 INTEREST PAID THIS STATEMENT THRU 10/31 Deposits/Credits: 1 Total Items Deposited: 0 Balance Date Balance Collected Date Balance Collected Activity Balance Balance History 10/01 101,158.28 101,158.28 10/31 101,315.62 101,315.62 325639 Member FDIC Continued on next page ? ;1 ?. C )AN 1 1 2006 GB SINKING SPRING ASSOCIATES, L.P. Plaintiff, V. MSB PROPERTY, LLC and KLNB,LLC Defendants. ORDER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 05-2884 CIVIL TERM AND NOW, this i / C day of January, 2006, the motion ofKLNB, LLC is GRANTED and KLNB, LLC is dismissed from this matter and it is ordered the caption for this matter will be amended to exclude KLNB, LLC. BY THE COURT: J. ,ifs } ? ' "i?:r'Y T4`',i_ „ ?. ? Lc?U ,ii`tta ? u ,? GH SINKING SPRING ASSOCIATES, L.P., Plaintiff v MSB PROPERTY, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 05-2884 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this 27`' day of March, 2006, upon consideration of Plaintiffs preliminary objections in the nature of a demurrer to Defendant's unjust enrichment claim, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, Stephen C. Nudel, Esq. Andrew T. Kravitz, Esq. 219 Pine Street Harrisburg, PA 17101 a Attorneys for Plaintiff Aul J. Cianci, Esq. Eizen, Fineburg & McCarthy, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Attorney for Defendant 11t, /-- 1 ?? /- - J. Wesley Ole Jr., J. Apr?? Dv On February 22, 2005, Defendant sent a letter to Plaintiff requesting certain amendments to the Agreement of Sale and stating that, if such amendments were not made, Plaintiff should consider the Agreement of Sale terminated.18 Plaintiff has alleged that the termination was invalid because it was made after the expiration of the due diligence period; thus, Plaintiff has asserted that Defendant has waived its right to the $100,000.00 down payment.19 Defendant, on the other hand, has alleged that the due diligence period was extended, and that Plaintiff was given written notice of the termination during the due diligence period; thus, Defendant has asserted that it is entitled to a return of the $100,000.00 down payment .2() Additionally, Defendant has advanced a claim for unjust enrichment, contending that Plaintiff would be unjustly enriched if it were to be paid the down payment.21 On August 25, 2005, Plaintiff filed preliminary objections to Defendant's answer-specifically to Defendant's unjust enrichment claim-stating that "[t]he doctrine of unjust enrichment is not applicable when the relationship between the part[ies] is founded on a written agreement or express contract."22 DISCUSSION A preliminary objection in the form of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that" the position challenged by the demurrer cannot prevail. Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995). If any lingering doubt remains as to whether to sustain the demurrer, "this doubt should be resolved in favor of [the nonmoving party]." Presbyterian Medical Center v. Budd, 2003 PA Super. 323, ¶6, 832 A.2d 1066, 1070 (2003). Compl. ¶ 15, Ex. E; Answer ¶¶ 15, 45. re Compl. ¶¶ 16-19. 20 Answer ¶¶ 32-33, 39-45, 48-53. 21 Answer ¶¶ 54-57. 22 Prelim. Obj. ¶ 5. See generally Prelim. Obj. ¶¶ 1-9. 4 Under Pennsylvania Rule of Civil Procedure 1020(c), "[clauses of action ... may be pleaded in the alternative." Thus, although it may be true that a claimant cannot recover on more than one theory in a given case, at the pleading stage he or she is not required to make an election as to that theory. See Braginetz v. Foreign Motor Sales, Inc., 76 Dauphin Co. 1 (1960). This principle has been emphasized by the Honorable Edward E. Guido of this court as follows: [In their preliminary objection,] Defendants' only argument is that quantum meruit relief is not available where the parties' relationship is founded on an express agreement. They have cited numerous cases which stand for this proposition. However, not one of those cases involve an objection to the pleadings. The reason is clear. Pennsylvania Rule of Civil Procedure 1020(c) unequivocally provides that causes of action may be pleaded in the alternative. It has long been the law of this Commonwealth that "... plaintiffs should not be forced to elect a particular theory in pursuing a claim" at the pleadings stage. Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977). There is not one scintilla of doubt that Defendants' preliminary objection should be denied. Humbert v. Gates, 47 Cumberland L.J. 186, 187 (1998), aff'd, 760 A.2d 437 (Pa. Super. Ct. 2000). In the present case, as a more complete record is developed, Plaintiff's position that unjust enrichment is not a tenable theory upon which relief can be granted to Defendant may become more evident. However, such a conclusion at the pleadings stage would not be warranted. ORDER OF COURT AND NOW, this 27`h day of March, 2006, upon consideration of Plaintiff's preliminary objections in the nature of a demurrer to Defendant's unjust enrichment claim, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. 5 BY THE COURT, s( J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Stephen C. Nudel, Esq. Andrew T. Kravitz, Esq. 219 Pine Street Harrisburg, PA 17101 Attorneys for Plaintiff Paul J. Cianci, Esq. Eizen, Fineburg & McCarthy, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Attorney for Defendant EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Joseph M. Armstrong, Esquire Identification No.: 82837 GH SINKING SPRING ASSOCIATES, L.P. V. Attorney for Defendant, MSB Property, LLC COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA MSB PROPERTY, LLC and KLNB,LLC Defendants. NO. 05-2884 CIVIL TERM ACTION FOR DECLARATORY JUDGMENT ENTRY/WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly substitute the appearance of Joseph M. Armstrong, Esquire for that of Paul J. Cianci, Esquire, who is no longer with our firm. Respectfully submitted, FINEBURG & McCARTHY, P.C. Date: August 16, 2006 By: ... MSB Y - -. EIZEN, FINEBURG & McCARTHY, P.C. Two Commerce Square, Suite 3410 2001 Market Street Philadelphia, PA 19103 Tel.: (215) 751-9666 Fax: (215) 751-9310 By: Joseph M. Armstrong, Esquire Identification No.: 82837 Attorney for Defendant, MSB Property, LLC GH SINKING SPRING ASSOCIATES, L.P. Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. MSB PROPERTY, LLC and KLNB,LLC Defendants. NO. 05-2884 CIVIL TERM ACTION FOR DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I, Joseph M. Armstrong, hereby certify that on the date set forth below, I served on the below listed counsel via first class mail a true and correct copy of the foregoing Entry/Withdrawal of Appearance. Andrew T. Kravitz, Esquire Law Offices of Stephen C. Nudel, PC 219 Pine Street Harrisburg, PP 17101 Date: August 16, 2006 ? o f j T, I k. x• G s Y N ? W Curtis R. Long Prothonotary office of the ?rut?jonotarp Cumbertanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor CVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573