Partial Transition Agreement and Release

PARTIAL TRANSITION AGREEMENT AND RELEASE

THIS PARTIAL TRANSITION AGREEMENT AND RELEASE (the “Agreement”) is entered into as of this _____ day of ______2015 (the “Effective Date”) by and between the ASSOCIATION OF OWNERS OF THE VILLAGE OF BRANDYWINE

CONDOMINIUM, by and through its Council (hereinafter referred to as the “Council”) and

MCKEE-BRANDYWINE PARTNERS, L.P., a Pennsylvania limited partnership (hereinafter referred to as the “Developer”). The Council and the Developer may be collectively referred to herein as the “Parties” or individually as a “Party.”

Recitals

WHEREAS, the Developer purchased a previously approved residential condominium community known as The Village of Brandywine located in New Castle County, Delaware (the

“Community” and/or “Property”); and

WHEREAS, the community was created in 2005 by that certain Record Major Land

Development Plan recorded in the Office of the Recorder of Deeds in and for New Castle

County, Delaware (the “Recorder’s Office”) at Instrument No. 20050309-0022482 (the “Record

Plan”) and submitted to the provisions of the Unit Property Act on June 26, 2006 with the filing of that certain Condominium Declaration Plan for the Village of Brandywine Condominium of record in the Recorder’s Office at Instrument No. 20050626-0060413 (the “Declaration”); and

WHEREAS, the Developer is subject to that certain Land Development Improvement agreement entered into with New Castle County on February 3, 2005 of record in the Recorder’s

Office at Instrument No. 20050209-0013629, as amended on July 11, 2012 of record in the Recorder’s Office at Instrument No. 20120718-0039812 (collectively, the “Development

Agreement”); and

WHEREAS, pursuant to the Declaration, on or about August, 2011, the Development

Period1 expired allowing Unit Owners to be elected to the Council; and

WHEREAS, the Council has notified the Developer as to the alleged existence of certain outstanding common area expenses, potential code violations to the Clubhouse (the

“Clubhouse”) and related issues arising in conjunction with the construction and development of the Community;

WHEREAS, the Council and the Developer have engaged in extensive negotiations in an effort to narrow and resolve the outstanding issues between the Parties; and

WHEREAS, the Parties desire to resolve certain, but not all, claims of the Council, as are more fully described below.

NOW, THEREFORE, in consideration of the mutual promises, representations and covenants bargained for and set forth herein, the sufficiency of which is hereby acknowledged, and intending to be legally bound hereto, the Parties hereby agree as follows:

1. RECITALS. Each of the foregoing recitals is incorporated herein by reference and made a part of this Agreement.

2. DEVELOPER’S WORK. Developer agrees to perform all work as more particularly described on Exhibit “A”, attached hereto and incorporated herein (the “Work”).

Developer shall commence and complete such Work within the time frames set forth in Exhibit

A, which may be extended by mutual consent of the Parties for unexpected delays in obtaining necessary permits and approvals or due to weather events. The quality of the workmanship will

1 Capitalized terms not defined herein, shall have the meaning assigned to them in the Declaration. 2 be that as generally accepted in the field and the Council will not unreasonably withhold acceptance of the Work outlined in the agreement without a good faith basis to dispute the quality of the work performed. Upon written notice to the Council of the completion of the

Work, the Council will cause a final inspection of the Work. If the Work is not accepted by the

Council, the Declarant shall be given sixty (60) days to remedy any deficiencies. If the Work is accepted by the Council, a written notice of approval and acceptance of the Work will be provided to the Declarant. If there are disputes regarding the adequacy and/or sufficiency of the

Work, the Parties shall submit the dispute to a mutually agreed upon third party inspector

(“Referee”) who shall determine if the Work is acceptable or whether further repair or remediation is necessary. The cost of the Referee shall be split equally between the Parties, and the decision of the Referee shall be final and unappealable. Declarant shall warrant the Work to be free from defects in workmanship and materials.

3. TOLLING AGREEMENT. The Parties entered into a Tolling Agreement dated

January 31, 2014. The Parties agree that the Tolling Agreement shall remain unchanged by this

Agreement and remain in place for any claims not released herein.

4. PAYMENT OF COMMON ELEMENT EXPENSES. Developer shall pay to the Council the following amounts in full satisfaction of any outstanding common elements expenses for the periods of time predating this Agreement in equal monthly installments of

$7,500.00, beginning as of January 1, 2015 and ending on November 1, 2016, with one final lump sum payment of $249.75 on December 31, 2016 respectively, unless earlier paid off.

a. Landscaping Expenses - $115,428.00

b. Road Way Expenses - $ 25,531.75

c. Electricity Expenses - $ 31,820.00 3 From the Effective Date until the dedication of the open space and Common Elements within the

Community to Council per the requirements of the New Castle County Unified Development

Code (the “UDC”) and the Development Agreement, the Developer shall perform and pay 100% of all expenses for landscaping, snow removal and electric for street lighting and shall maintain the Clubhouse per the requirements of the UDC.

5. RELEASE BY ASSOCIATION. The Council does hereby release and forever discharge the Developer, McKee Builders LLC, McKee Management Associates, Inc. t/a The

McKee Group, Frank J. McKee, and their respective parents, subsidiaries, affiliates, divisions, successors, assigns, directors, officers, employees, agents, members, shareholders trustees, beneficiaries, and insurers (the “Developer Parties”) of and from any and all demands, claims, actions, suits, counts, demands for damages, liquidated damages, losses, costs, expenses, compensation, contract balances, retainage, consequential damages, loss of profits, interest, penalties, liabilities, attorneys’ fees, punitive damages, extra-contractual damages, tort damages, statutory claims, statutory causes of action, or causes of action, whether legal, equitable, or otherwise, of every nature and description, whether known or unknown, patent or latent, suspected or unsuspected, foreseen or unforeseen, real or imagined, actual or potential, and whether arising at law or in equity, under the common law, state law, U.S. law, or any other law, or otherwise, that the Council ever had, now has, or may in the future have, against the

Developer Parties that concern or relate to the Clubhouse, the Work set forth in Paragraph 2 above and prior period common area expenses set forth in Paragraph 4 above. This Release is not intended and shall not apply to the Buildings or Common Elements not part of the Clubhouse or Work, including but not limited to, all structural walls (including party walls) floors and ceilings, exterior roofs and all trusses, supports and framing of roofs extending downward to the 4 unfinished and unexposed surface of each Unit ceiling or the parking areas, access and internal drives and driveways, curbing, sidewalks, street lighting, recreational facilities and amenities, and installation of centralized services and utilities as well as all apparatus and installations existing for common use. This Release is also not intended and shall not apply to third party claims for personal injuries, including death, and/or property damage, that arise out of or relate to the development of the Community. This release is not intended to apply to any obligations created by this Agreement.

6. RELEASE BY DEVELOPER. Developer does hereby release and forever discharge the Council, its heirs, successors, assigns, agents, employees, officers, directors, members, managers, management company, insurers, law firm and attorneys and all other persons and/or entities acting, or purporting to act, on behalf of the Council (the “Council’s Parties”) of and from any and all demands, claims, actions, suits, counts, demands for damages, liquidated damages, losses, costs, expenses, compensation, contract balances, retainage, consequential damages, loss of profits, interest, penalties, liabilities, attorneys’ fees, punitive damages, extra- contractual damages, tort damages, statutory claims, statutory causes of action, or causes of action, whether legal, equitable, or otherwise, of every nature and description, whether known or unknown, patent or latent, suspected or unsuspected, foreseen or unforeseen, real or imagined, actual or potential, and whether arising at law or in equity, under the common law, state law,

U.S. law, or any other law, or otherwise, that Developer ever had, now has, or may in the future have, against the Council and the Council’s Parties that concern or relate to the Clubhouse, the

Work set forth in Paragraph 2 above and prior period common area expenses set forth in

Paragraph 4 above; provided, however, that this Release is not intended and shall not apply to third party claims for personal injuries, including death, and/or property damage, that arise out of 5 or relate to the to the development of the Community. This release is not intended to apply to any obligations created by this Agreement.

7. NO ADMISSION OF LIABILITY. The Parties hereto acknowledge and agree that this Agreement shall not be construed as an admission by any Party of any liability or wrongdoing whatsoever.

8. DRAFTING OF DOCUMENT AND RELIANCE BY THE PARTIES. This

Agreement has been negotiated by the Parties through their respective counsel. The Parties warrant, represent and agree that the terms of this Agreement were discussed with counsel and are voluntarily accepted. The rights, duties and obligations set forth in this Agreement are not in any way affected, waived or released by any Release provided in Paragraphs 6 and 7, above.

9. BINDING EFFECT. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, successors, shareholders, owners, assigns and principals.

10. FUTURE COOPERATION. The Parties agree to cooperate fully and to execute any and all supplemental documents and to take any additional actions that may be reasonably necessary or appropriate to give full force and effect to the terms of this Agreement.

11. EXECUTION OF COUNTERPARTS. This Agreement may be executed in any number of counterparts and each such executed counterpart should be deemed to be the original instrument and all such executed counterparts together shall constitute one and the same instrument. Facsimile signatures and copies shall be deemed to be originals, shall serve to bind the Parties and shall have the same force and effect as would original signatures and documents.

12. CONTROLLING LAW. This Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware. 6 13. AUTHORITY TO EXECUTE. The persons executing this Agreement on behalf of the Parties represent that they are duly authorized to execute this Agreement on behalf of such

Parties.

14. Notice. Any and all notices under this Agreement shall be given in writing as follows:

(a) The Village of Brandywine Condominium Council Attention: Ron Snyder [ADDRESS]

With a copy to:

Chad Toms, Esquire Whiteford Taylor Present The Renaissance Center, Suite 500 405 North King Street Wilmington, DE 19801

(b) McKee-Brandywine Partners, L.P: 940 W. Sproul Road Attn: Kevin McLaughlin, Esq. Springfield, PA 19064

With copy to:

Michael A. DeNote, Esq. Saul Ewing LLP 222 Delaware Avenue, Suite 1200 Wilmington, DE 19801

Such notice shall be deemed given on that date which is the first business day after the date of delivery of a letter requesting next day delivery to a nationally recognized overnight courier; on the date of delivery if hand-delivered during regular business hours; or three (3) days after deposit in the U.S. mails, if sent first class certified mail, return receipt requested.

7 [signature page to follow]

8 IN WITNESS WHEREOF and intending to be legally bound hereby, the Parties hereunto have set their hands and seals this _____ day of ______2015.

ASSOCIATION OF OWNERS OF THE VILLAGE OF BRANDYWINE CONDOMINIUM

By: ______

Name: ______

Title: ______

MCKEE BRANDYWINE PARTNERS, L.P.

By: McKee Builders, LLC, its sole member

By: ______

Name: ______

Title: ______

9 EXHIBIT A

 CLUBHOUSE REPAIRS. Developer shall make or cause to be made all repairs to the Clubhouse to remedy any existing violations of the New Castle County Property Maintenance Code (“Code”) as set forth in the attached citation issued by New Castle County. Such work shall begin immediately and shall be complete no later than April 30, 2015.

 ENTRANCE GATE: The Developer shall, at its sole cost and expense, upgrade the entrance gate at the rear of the Property pursuant to the attached invoice and work order. Such work shall begin immediately and shall be complete no later than June 30, 2015. Council acknowledges that the foregoing upgrade to the entrance gate is far superior and more expensive than the gate required to be built pursuant to the Record Plan.

 SECURITY FENCE. The Developer shall, at its sole cost and expense, install a security fence along the property line. The size and materials used to construct the security fence shall be mutually agreed to by the parties provided, however, that if the size of the fence and/or the materials requested by the Council results in a cost to Developer of more than $61,000.00 to install such a fence, the Council shall be responsible for paying for such additional cost. Such work shall begin immediately and shall be complete no later than June 30, 2015.