HomeMy WebLinkAbout04-2264IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT No. `--
GROUP, INC.,
Plaintiff
V.
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
NOTICE TO DEFEND
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. IFYOU DO
NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD 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, PA 17013
Telephone: 1-800-990-9108
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT' AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
MidPenn Legal Services
8 Irvine Rowe
Carlisle, PA 17013
Telephone: 1-800-822-5288
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT No.
GROUP, INC.,
Plaintiff
V.
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
AVISO
USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las
quejas expuestas en las pAginas siguientes, debe tomar accion dentro de veinte (20) dias a partir
de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en
persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las
demandas en su contra.
Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede
decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o
por cualquier otra queja o compensacion reclamados por el Demandante. USTED PUEDE
PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA
USTED.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI USTED NO
TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA
DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER
ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone: I-800-990-9108
SI USTED NO PUEDE PARARLE A UN ABOGADO, ESTA OFICINA PUEDE
PROVEERE INFORMACION ACERCA AGENCIAS QUE PUEDAN OFRECER SERVICIOS
LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS.
MidPenn Legal Services
8 Irvine Rowe
Carlisle, PA 17013
Telephone: 1-800-822-5288
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT No. Oq - dAj.j.
GROUP, INC.,
Plaintiff
V.
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
COMPLAINT
Lehigh Valley Restaurant Group, Inc., by its counsel, Barley Snyder, files the following
Complaint against Shadow Oaks, Inc., Jonathan Hogg, Inc., and Shadow Oaks, Inc., and
Jonathan Hogg, Inc., trading as Shadow Oaks Associates:
Plaintiff, Lehigh Valley Restaurant Group, Inc., is a Pennsylvania corporation
which has a registered office address of 6802-A Hamilton Boulevard, Allentown, Lehigh
County, Pennsylvania 18106.
2. Defendant Shadow Oaks, hic., is a Pennsylvania corporation which has a
registered address of 6570 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania
17055.
Defendant Jonathan Hogg, Inc., is a Pennsylvania corporation which has a
registered address of 6570 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania
17055.
4. Defendants Shadow Oaks, Inc., and Jonathan Hogg, Inc., sometimes trade and do
business by a joint venture known as Shadow Oaks Associates, which has an office address of
6570 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055.
5. On or about September 16, 2000, Plaintiff and Defendants entered into an
Agreement of Lease ("Lease") with regard to certain space and the improvements to be erected
thereon located in the Cumberland Marketplace Shopping Center ("Center") located in Silver
Spring Township, Cumberland County, Pennsylvania ("Premises"). A true and correct copy of
the Lease is attached and made a part hereof as Exhibit A.
6. As more fully set forth in Exhibit A, Plaintiff agreed to lease the Premises for an
initial term of 15 years, for which it agreed to pay a base rent and a percentage rent, all as more
specifically described in the Lease.
At all times relevant to the negotiation of the Lease, Defendants were aware that
Plaintiff intended to operate a restaurant business known as the Red Robin on the Premises and,
in fact, Defendants agreed to construct the improvements thereon in accordance with the Red
Robin Prototype Design furnished by Plaintiff.
8. At all times relevant to the negotiation of the Lease, Defendants were aware that
unimpeded visibility to the Premises from the adjoining streets, Carlisle Pike and Route 114, was
critical.
9. At all times relevant to the negotiation of the Lease, Defendants were aware that
visibility to the Premises was of such critical importance that Plaintiff obtained a zoning variance
to enlarge the signage at the restaurant,
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10. At all times relevant to the negotiation of the Lease, Defendants were aware that
Plaintiff had serious concerns about the number of parking spaces available for its patrons.
11. As more fully set forth in paragraph Lb. of the Lease, Defendants agreed to keep
the Common Area of the Center open and available for all tenants of the Center, as follows:
"The Landlord agrees that any agreements with other tenants
within the Center will provide that the Common Area will be and
remain open and available for reciprocal use by all customers,
employees, vendors and other invitees of the tenants of the Center
12. As more fully set forth in paragraph l.c. of the Lease, Defendants agreed to
maintain the Common Area of the Center as it existed at the time of the execution of the Lease,
as follows:
"No tenant, organization, individual, or any other entity shall use
the Common Area for any other purpose than herein designated, . .
13. As more fully set forth in paragraph 7.a.ii. of the Lease, Defendants agreed that
they would not make any changes to the number of parking spaces in the Center without first
obtaining Plaintiff s consent, as follows:
Landlord may, in seeking the Governmental Approvals, and at any
time and from time to time either before, during or after the initial
construction of the Center make non-material modifications to the
Plan, outside of the Premises only, without first obtaining Tenant's
consent (which shall not be unreasonably withheld), except for
changes to the following: the location or manner of ingress to or
egress from the Center to or from public streets, or highways, the
number of parking spaces in the Center or the location of parking
in the Center.
14. As defined in the Lease, the Common Area is the designated area for the common
and joint use of the tenants of the Center.
15. Subsequent to September 16, 2000, and subsequent to Plaintiff's opening of its
Red Robin Restaurant at the Center, Defendants erected or permitted to be erected a gas station
service island for Giant Food Stores within the Common Area of the Center.
16. Defendants did not seek nor did they receive permission from Plaintiff for the
erection of the gas station service island.
17. The erection of the gas station service island has impeded the visibility of
Plaintiffs restaurant from both Carlisle Pike and Route 114.
18. The erection of the gas station service island has severely reduced the number of
parking spaces available for patrons of Plaintiff s restaurant.
19. The actions of Defendants as described above in erecting or permitting to be
erected the gas station service island constitutes a breach of the Lease by Defendants.
20. Plaintiff has fully complied with its obligations under the Lease.
21. As a result of Defendants' breach of the Lease, Plaintiff has suffered a loss of
sales revenue beginning in September of 2003 and continuing to the present.
21 As a result of Defendant's breach of the Lease, Plaintiff believes and therefore
avers that it will continue to suffer a loss of sales revenue throughout the term of the Lease.
23. Plaintiffs claim exceeds the amount requiring arbitration by local rule.
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WHEREFORE, Plaintiff, Lehigh Valley Restaurant Group, Inc., demands judgment in its
favor and against Defendants, Shadow Oaks, Inc., Jonathan Hogg, Inc., and Shadow Oaks, Inc.,
and Jonathan Hogg, Inc., trading as Shadow Oaks Associates, in an unliquidated amount in
excess of $25,000, plus interest and costs of suit.
BARLEYSNYDER
By:
Paul i i>?""'?
Court I.D. 74453
100 East Market Street
P.O. Box 15012
York, PA 17405-7012
717.846.8888
Attorneys for Plaintiff
1271839
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VERIFICATION
I, Stephen Hanzlik, President of Lehigh Valley Restaurant Group, Inc., the within
Plaintiff, hereby verify that the facts set forth in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief. 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.
Dated: 51 /1161
it?hen ik
`- r
?r
AGREEMENT OF LEASE
THIS AGREEMENT TO LEASE is made this 16 Vh day of S yle,n ?e,- , 2000, between
SHADOW OAFS ASSOCIATES, a Pennsylvania joint venture consisting of Shadow Oaks,
Inc. and Jonathan Hogg, Inc., each a Pennsylvania corporation ("Landlord"), with an address of
c/o Integrated Properties, 6570 Carlisle Pike, Mechanicsburg, Pennsylvania 17055, and
LEHIGH VALLEY RESTAURANT GROUP, INC., a Pennsylvania corporation ("Tenant"),
with its office at 6802 Hamilton Boulevard, Trexlertown, Pennsylvania 18087.
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows.
1. PREMISES; COMMON AREA; TITLE
a. Premises. Landlord hereby rents to Tenant that certain space more
fully described on Exhibit "A" attached hereto, together with improvements
thereon and the appurtenances thereto (the "Premises") upon which Landlord
shall construct a building having a ground floor area of 6,364 square feet
including a service corridor, plus (i) additional patio area of approximately 574
square feet and (ii) a bumped-out vestibule entry area (the foregoing collectively
the "Building") at the northern end cap of a shopping center complex ("Center")
being developed by Landlord and to be known as Cumberland Marketplace
Shopping Center, located in Silver Spring Township, Cumberland County,
Pennsylvania, as shown on a certain Site and Utility Plan for Giant Food Store
in Shadow Oaks Condominium Association, prepared by Hartman & Associates,
Inc., dated June 17, 1999, last revised June 16, 2000, and recorded in the Office
of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Plan
Book 81, Page 57 (the "Plan"). The term "Premises" shall include the interior
portions of the Building when constructed.
b. Center. The Plan depicts certain Common Area as hereafter
defined. Landlord grants to Tenant and its agents, contractors, employees and
customers, a nonexclusive license to use all portions of the Common Area (as
hereafter defined) in common with other tenants of the Center, their agents,
employees and customers during the term of this Lease and any renewal period
thereof for underground utility lines, parking, loading and ingress and egress in
the portion of the Common Area designated by Landlord for such common uses.
The Landlord agrees that any agreements with other tenants within the Center
will provide that the Common Area will be and remain open and available for
reciprocal use by all customers, employees, vendors and other invitees of the
351017)
1
§ P
tenants of the Center (except for the twenty (20) parking spaces designated for
temporary parking for Blockbuster customers).
c. Co}ort Area: Common Facilities. Landlord shall have the right
to establish,tnodify and enforce reasonable tales and regulations with respect to
the Common Area and to enter into, modify and terminate easement and other
agreements pertaining to the use and maintenance of the parking areas and other
portions of the Common Area. No tenant, organization, individual, or any
other entity shall use the Common Area for any other purpose than herein
designated, nor shall anyone have the right to authorize the use of any of the
Common Area except the Landlord. The term "Common Area" as used herein
shall mean the areas designated on the Plan, or hereinafter designated by the
Landlord, for the common and joint use of the tenants of the Shopping Center,
including improvements (except for the Building and other structures occupied
by Landlord or other tenants of Landlord) constructed on or under any part of
the Center, including but not limited to common utilities, light standards,
landscaping, paving, curbing, and stormwater structures. The term "Common
Facilities" as used herein shall mean and refer to those structures, whether
above or under ground, which are located within the boundaries of the Premises
but which are used by or benefit other tenants in the Center, such as stormwater
culverts or pipes and electrical, telephone or other utility lines, sidewalks and
parking areas.
d. Conditions to Tenant's Obligations. All of Tenant's obligations
under this Lease shall be subject to and conditioned upon satisfaction of each and
every one of the following conditions:
i. Within twenty (20) days of execution of this Lease,
approval of the exterior elevations of the Premises by Tenant's
franchisor, Red Robin International, Inc. ("Franchisor").
ii. Within sixty (60) days of execution of this Lease,
acquisition by Tenant, on terms in all respects satisfactory to
Tenant, of a restaurant liquor license issued by the Pennsylvania
Liquor Control Board suitable for use at the Premises.
iii. Within sixty (60) days of execution of this Lease,
issuance to Tenant by a financial institution or other lender
satisfactory to Tenant of an irrevocable financing commitment,
containing such terms and in such amount or amounts as Tenant
shall require with respect to Tenant's improvement and equipping
of the Building.
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In the event that all of the foregoing conditions are not satisfied within the
applicable time periods despite the diligent and good faith efforts of Tenant,
Tenant may terminate this Lease on written notice to Landlord, whereupon this
Lease shall terminate and be of no further force or effect. If Tenant fails to
terminate this Lease within ten (10) days after the end of any such applicable time
period, any such unsatisfied condition shall be deemed to have been waived by
Tenant.
d. Title. Landlord warrants and represents (i) that it is the owner of fee
simple title to the Premises and the Center, (ii) that there exist no defaults under
any mortgage or covenants affecting the Premises or the Center and (iii) that
Landlord's interest in the Center and the Premises is free and clear of all liens,
encumbrances, covenants, easements, restrictions, leases, licenses, agreements
and options, except the mortgage lien of Landlord's principal lender as disclosed
to Tenant and, with respect to portions of the Center other than the Premises,
commercial leases of space entered into by Landlord in the ordinary course of
Landlord's business.
2. TERM.
The tetra of this Lease (the "Term") shall commence on the date (the "Commencement
Date") which is the earlier of
(a) Tenant's opening for business, or
(b) one hundred fifty (150) days after delivery of Premises to Tenant in
accordance with the terms of this Lease following timely delivery of the Turnover
Notice as provided in subsection 7b of this Lease.
The term shall end at 11:59 p.m., local time, of the day preceding the fifteen (15th) anniversary
of the Commencement Date. On or promptly following the Commencement Date, Landlord shall
give notice thereof to Tenant and Landlord and Tenant shall execute a certificate wherein the
parties shall certify the Commencement Date.
3. OPTION TO EXTEND TERM.
a. Tenant shall have the right to extend the Term of this Lease for two
additional periods of five (5) years each and an additional period of four (4)
years, each of which shall commence immediately upon expiration of the
preceding term (which right shall be deemed to have been exercised by Tenant
unless Tenant gives notice of its intention not to renew by Tenant's delivery of
written notice to Landlord at least nine (9) months prior to expiration of the
original term), provided that no Event of Default by Tenant exists under this
Lease at the time of exercise of such right.
3
d
b. The parties agree to negotiate in good faith, following exercise by
Tenant of the final renewal option provided in subsection a of this Section 3,
with respect to extension of the term of this Lease beyond the renewal terms
contemplated in subsection a of this Section under the same terms and
conditions, except that the duration of any such renewal terms and the rent
payable during such terms shall be mutually acceptable to the parties.
c. Except for the adjustments in the Rent as set forth herein, all other
covenants, terms and conditions of this Lease shall remain in full force and
effect during the extensions of the Term. Each extended term shall be
considered a part of the "Term" under this Lease.
4. RENT.
a. Base Rent. Effective on the Commencement Date, Tenant shall pay
to Landlord, during the Term of this Lease, without prior notice or demand and
without any deduction or setoff, except as provided in this Lease, an annual
rental ("Base Rent") paid in monthly installments as set forth below:
Lease Years Base Rent Monthly Installments
Initial Term
Year 1 $79,977.00 months 1-3 $5,303.33
months 4-6 $6,136.67
months 7-12 $7,609.50
Years 2-5 $ 91,314.00 $7,609.50
Years 6 - 10 $ 96,000.00 8,000.00
Years 11 - 15 $ 103,000.00 8,583.33
First Renewal Term
Years 16-20 $ 113,000.00 $ 9,416.67
Second Renewal Term
Years 21-25 $ 125,000.00 $ 10,416.67
Third Renewal Term
Years 26 - End $ 138,000.00 $ 11,500.00
Notwithstanding the requirement to pay Base Rent as set forth in the foregoing
provisions of this subsection 4a, in the event that a movie theater having not less
than twelve (12) screens is opened for business with the general public on the
parcel currently owned by Route 114 Associates and located on Sporting Green
Drive behind the existing L.owe's retail store in Silver Spring Commons Shopping
Center, the Base Rent set forth above shall be adjusted, effective as of the date of
such theater opening for business, to the Base Rent schedule set forth below:
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Lease Years Base Rent Monthly Installments
Years 2-5
Years 6-10
Years 11-15
Years 16-20
Years 21-25
Years 26-End
$ 91,314.00
98,005.60
107,806.16
118,561.32
130,462.00
143,508.20
$ 7,609.50
8,167.13
8,983.84
9,880.11
10,871.83
11,959.01
b. Percentage Rent.
i. Percentage Rent Calculation. In addition to the
Base Rent described above, Tenant shall pay a percentage rent to
Landlord ("Percentage Rent"), equal to three percent (3.0%) of
the amount by which Tenant's annual Adjusted Gross Sales
exceed $2,700,000.00 ("Break Point") over each fifty-two (52)
week reporting period (or fifty-three (53) week reporting period,
as applicable) corresponding to the calendar years during the
Term beginning with the fifty-two (52) week reporting period
ending December 23, 2001, provided that the Break Point shall
increase in proportion to the percentage increase in Base Rent, as
follows:
Lease Years
Initial Term
Years 1-5
Years 6 - 10
Years 11 - 15
First Renewal Term
Years 16-20
Second Renewal Term
Years 21-25
Third Renewal Term
Years 26 - End
0%
14%
10%
10%
10%
10%
Tenant shall pay any Percentage Rent due under this Lease
annually based on Adjusted Gross Sales during the preceding
reporting period on or before March 15' of each year, beginning
March 15, 2002. Adjusted Gross Sales shall be reported by Tenant
to Landlord in the same form in which Tenant reports its sales to
Percentage Increase
in Break Point
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its Franchisor, shall be reported by Tenant to Landlord not less
than annually, shall be certified by an officer of Tenant, shall be
adjusted in the same manner in which gross sales reported to the
Franchisor are adjusted as set forth on the form of franchise sales
report attached hereto as Exhibit "B" and shall be computed on the
basis of the reporting periods for which Tenant reports its results to
Franchisor.
ii. Initial Reporting Period. For the reporting period
from the Commencement Date through the last day of the
reporting period corresponding to the calendar year 2001 (i.e.,
the fifty-two (52) week reporting period ended December 23,
2001), Tenant shall pay Percentage Rent as set forth in subsection
4.b.i above, except that the Adjusted Gross Sales amounts to
which such Percentage Rent applies shall be adjusted by
multiplication by a fraction, the numerator of which shall be the
number of days from the Commencement Date through December
23, 2001, and the denominator of which shall be 364.
iii. Audit. Landlord, upon ten (10) days advance
notice to Tenant shall have the right, not more often once each
reporting period, during business hours to make an examination
or audit of all books and records pertaining to Tenant's Adjusted
Gross Sales. If such audit shall disclose a liability in any
reporting period for Percentage Rent in excess of the Percentage
Rent theretofore paid by Tenant for such reporting period, Tenant
shall promptly pay such liability. Any overpayment in
Percentage Rent discovered through such audit shall be promptly
remitted by Landlord to Tenant. In addition, if such audit shall
disclose that Tenant has underpaid by five percent (5 %) or more
the Percentage Rent payable by Tenant, the amount of which is
based on Adjusted Gross Sales, then in such event, in addition to
being an Event of Default hereunder, Tenant shall promptly pay
the reasonable cost of audit and interest on all additional
Percentage Rent then payable at the rate which is the lesser of (A)
twelve percent (12%) per annum or (B) the maximum interest
rate permitted by law, accounting from the date such additional
percentage rent was due and payable.
5. ADDITIONAL RENT.
a. Definitions.
i. "Real Estate Taxes" shall mean all taxes and
assessments levied, assessed or imposed at any time by any
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governmental authority upon or against the Center and any
improvements thereon, whether or not the subject of a lease to
Tenant or any other tenant of the Center or any part thereof, and
which are based upon the assessed value thereof ("Ad Valorem
Taxes") and also any tax or assessment levied, assessed or
imposed at any time by any governmental authority upon the
rents from the Center or any part thereof to the extent that the
same shall be expressly enacted by the applicable governing
authority in lieu of (and/or in lieu of an increase in) all or a
portion of any of the Ad Valorem Taxes (a "Substitute Tax").
Real Estate Taxes shall also include the reasonable cost, including
fees of attorneys, consultants, appraisers, of any negotiation,
contest or appeal pursued by Landlord in an effort to reduce any
such tax, assessment or charge, provided that Tenant shall have
consented in advance to such effort by Landlord. Without
limitation of the foregoing, Real Estate Taxes shall not include
taxes in the nature of income, business, gross receipts or profit
taxes, inheritance or estate taxes, taxes applicable to activities or
taxable events related to receipt of compensation generally and
not limited to rents receivable from real estate. If Landlord
asserts that a tax other than an Ad Valorem Tax is part of Real
Estate Taxes for any year, by reason of its being a Substitute
Tax, the same shall not qualify as a Substitute Tax to the extent
that the total Real Estate Taxes for such year exceed the Real
Estate Taxes for the preceding year by a percentage in excess of
the increase in the Consumer Price Index for such year over the
preceding year.
ii. "Operating Expenses" shall mean costs actually
incurred by Landlord for: operating, maintaining, managing and
administering, equipping, inspecting, signing, protecting and
repairing the Common Area and Common Facilities, removal of
ice, snow, trash, rubbish, debris, garbage and other refuse;
parking lot and driveway maintenance, repairs, resurfacing and
sealing; liability insurance for the Common Area; casualty
insurance for any Common Area and Common Facilities (to the
extent insurable); landscaping and irrigation systems within the
Common Area; electricity for lighting and signage in the
Common Area; maintaining, repairing and replacing sanitary
sewer lines and other utility lines, pipes and conduits serving the
Center (which are not for the exclusive use of a tenant in the
Center); cost of security personnel and equipment; establishment
of reasonable reserves for anticipated future capital expenditures
for repaving the parking and access and drive areas which are
part of the Common Area (all capital expenditures shall be
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amortized over the useful life in accordance with generally
accepted accounting principles); and costs of any construction or
alteration to the Center or the Common Area or Common
Facilities necessary for compliance with any governmental law,
regulation, ordinance or order not existing at the time of approval
of the Plan, provided that the charges for management and
administration included in Operating Expenses shall in no event
exceed 10% of the total Operating Expenses during any calendar
year.
Notwithstanding the foregoing, unless otherwise agreed
by Tenant, Operating Expenses shall not include any of the
following: new construction or alteration of buildings within the
Center; costs or expenses associated with repair or correction of
defective workmanship in construction of the Center or the
Common Area or Common Facilities; costs or expenses which
would ordinarily be covered by the proceeds of insurance,
condemnation or legal claims against another tenant or other
responsible parties, including but not limited to the costs of repair
or replacement from casualty or environmental damage; the cost
of any repair or replacement item which, by standard accounting
practices, should be capitalized (except as expressly stated in (ii),
above); charges for depreciation (except as expressly stated in
(ii), above); principal, interest or other debt service items; ground
rents; leasing commissions or other expenses associated with
leasing space in the Center; the cost of initial construction of the
Center, the Common Area or Common Facilities or any part
thereof; costs or expenses of enforcing lease obligations of other
tenants; wages, fees or salaries of Landlord's executive or
supervisory personnel; trash removal from any leased or
leaseable space in the Center, maintenance, repairs or
replacements of any heating, ventilation or air conditioning
system or electrical, plumbing or mechanical system servicing
any part of the Center or any building; costs of installation, repair
or replacement of any wall- or roof-mounted signage identifying
one or more tenants at the Center; or costs of any construction or
alteration of the Center or the Common Area or Common
Facilities necessary for compliance with any governmental law,
regulation, ordinance or order except as expressly described
above.
b. Common Area Charges. Prior to the Commencement Date and on
or before each anniversary of the commencement date under the lease dated
September 10, 1999 between Landlord and Giant Food Stores, Inc., which date
Landlord shall confirm to Tenant in writing, thereafter during the Term, Landlord
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shall deliver to Tenant the written estimate of Tenant's Share of the Real Estate
Taxes and detailed Operating Expenses (collectively the "Common Area
Charges") which may be due hereunder during the next twelve (12) calendar
months (the "Estimated Common Area Charge Period"), as prepared by Giant
Food Stores, Inc. under the lease between Giant Food Stores, Inc. and Landlord.
For each month during the Common Area Charge Period to which the estimated
Common Area Charges are applicable, Tenant shall pay one-twelfth of the amount
of the estimated Common Area Charles when the Base Rent for each month is due
and payable. A statement showing the actual Common Area Charges (hereinafter
referred to as "Statement of Actual Common Area Charges") prepared by Giant
Food Stores, Inc. shall be delivered by Landlord to Tenant within ninety (90) days
after the end of each Estimated Common Area Charge Period in which estimated
Common Area Charges were paid by Tenant or due Landlord. Within thirty (30)
days after the delivery by Landlord to Tenant of a Statement of Actual Common
Area Charges, Tenant shall pay to Landlord the amount by which the actual
Common Area Charges exceed the amount paid by Tenant as estimated Common
Area Charges. If the amount which the Tenant paid during the Estimated
Common Area Charge Period as estimated Common Area Charges exceeds the
amount set forth on the Statement of Actual Common Area Charges, Landlord
shall refund such excess amount to Tenant by crediting the amount against the
next Base Rent payment due within thirty (30) days after the delivery of the
Statement of Actual Common Area Charges, or paying Tenant in the event of
Lease expiration. Records of the Common Area Charges shall be kept at the
principal office of Giant Food Stores, Inc. Tenant shall have a period of one (1)
year from delivery by Landlord to Tenant of a Statement of Actual Common Area
Charges to audit Giant Foods books and records, during the normal business hours
of Giant Foods, to determine the accuracy of said Statement. Tenant's
representatives may request print-outs or copies of extracts from the records of
Giant Foods. Tenant will reimburse Giant Foods for reasonable costs of such
print-outs and copies. If the Tenant's Share of the Common Area Charges on any
statement is overstated by more than five percent (5%), Landlord shall reimburse
Tenant for the reasonable costs of Tenant's audit and inspection. Landlord shall
also reimburse Tenant for any amount billed to Tenant and paid by Tenant which
should not have been billed. In the event such audit discloses an undercharge of
Tenant's share of the Common Area Expenses as billed to the Tenant, Tenant
shall pay Landlord the amount of such undercharge within thirty (30) days of
completion of the audit. If Tenant fails to audit Giant Food Stores books within
the one year period following the delivery of the Statement, then Tenant shall be
deemed to have accepted the Statement and waived its rights to object to the
amounts set forth on the Statement. "Tenant's Share of Common Area Charges"
shall equal a percentage of the total Common Area Charges for the Center based
on the ratio of the ground floor area of the Premises (not including vestibule and
patio areas) to the total gross leasable area on all levels of all buildings within the
Center (including kosk space, if any). Such percentage shall be appropriately
adjusted as of the date any additional buildings are completed at the Center.
9
c. Payment of Common Area Charges in Dispute. If any dispute arises
between the Landlord and the Tenant pertaining to the payment by Tenant of its
Share of Common Area Charges, Tenant shall pay any Common Area Charges
which are not in dispute. The amounts which are in dispute shall be paid
without prejudice into an interest bearing account mutually established by the
parties at a bank or other financial institution and the funds shall be released to
the parties in accordance with a final adjudication or mutual agreement.
d. Use and Occupancy Taxes. Tenant shall pay use and occupancy
taxes imposed by any governmental body allocable to the Premises.
e. Place of Pavment. The aforesaid Base Rent payments and any other
sums due to Landlord pursuant to this Lease shall be made payable to Landlord
at Integrated Properties, 6570 Carlisle Pike, Mechanicsburg, Pennsylvania
17055, or to such other person and/or at such other place as may be designated
by notice, in writing from Landlord to Tenant.
6. USES OF SPACE IN THE CENTER; RESTRICTIVE COVENANTS.
a. Use. The Premises shall be used for the operation of a restaurant
business involving sit-down dining with table service and for no other purpose
without Landlord's consent, which consent shall not be unreasonably withheld.
b. Restrictions. Landlord covenants and agrees that during the Term,
it shall allow no other building or portion thereof nor any other space in the
Center to be used or occupied for the purposes of: (i) operation of any restaurant
involving sit-down dining with table service or the sale of alcoholic beverages;
or (ii) operation of any food service establishment using a concept similar (in
terms of customers, menu offerings or price ranges) to restaurants operating
under the trade name "Red Robin" whether locally owned or part of a regional,
national or international group, such as establishments using the following trade
names, which are identified herein for purposes of illustration only: Chili's,
Applebee's, TGI Friday's, Ruby Tuesday's, Olive Garden, Lone Star
Steakhouse, Chi Chi's, Outback Steakhouse, Pizzeria Uno, Houlihan,
Damon's, Pargo's, Fuddruckers, Ground Round, Bennigan's or any similar
establishment.
The restriction set forth in this Section 6b shall apply to the Center and to
any other property owned or developed by Landlord within one (1) mile of the
Center. At Tenant's request, the parties shall cause to be recorded in the Records
of Cumberland County, Pennsylvania, an appropriate instrument setting forth the
said restriction.
10
Vacancy. The Premises shall not be allowed to become vacant for more than
ninety (90) days, except in the event of a casualty to the Premises.
7. LANDLORD'S WORK.
a. Governmental Approvals,
i. Promptly following execution of this Lease,
Landlord shall commence efforts to obtain all necessary
governmental approvals for the construction of the Center, the
Building and the other buildings shown on the Plan, excepting
only the building permits for fit-up the interior portions of the
Building for which Tenant is responsible under this Lease
(collectively, the "Governmental Approvals"). The
Governmental Approvals shall also include the right and approval
of sewer connection to, and availability of capacity of, Silver
Spring Township sewage system, provided that Tenant shall pay
the tap-in fees for the Building and sewer capacity fees for the
Premises, subject to reimbursement by Landlord, if applicable,
under clause (i) of subsection 7b of this Lease. The
Governmental Approvals shall be deemed obtained at such time
as (A) Tenant would be entitled to the issuance of a building
permit for fit-up of the interior portions of the Building for which
Tenant is responsible under this Lease and (B) Tenant is able to
connect to, with available capacity, Silver Spring Township
sewage treatment plant system and to water lines.
ii. The plans and drawings submitted to governmental
authorities in connection with the Governmental Approvals shall
depict and the Governmental Approvals shall be sought in order
to allow, the construction of, and use and occupancy of, a
restaurant and food service complex with a layout, subject to
Landlord's right of modification described below, in accordance
with the Plan, including the Building, access to and from Carlilse
Pike (Route 11) and Route 114. The plans and drawings
submitted in connection with the Governmental Approvals shall
also include all improvements which must be completed in the
Common Area in order to permit the issuance of a building
permit and a certificate of occupancy for the Building. dMM?
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iii. The Government Approvals shall be obtained
according to the Plan and otherwise in a manner so that a
building permit could be obtained for the Building upon
submission of plans and specifications which satisfy applicable
building code standards for construction. All Governmental
Approvals shall be obtained at Landlord's cost and expense and
Landlord shall use diligent good faith efforts to obtain them.
Tenant shall be afforded regular reports, not less than monthly, of
the status of the Governmental Approvals.
b. Landlord's Work.
i. Landlord shall, at Landlord's cost and expense,
construct all of the improvements which are depicted in the
Common Area and the Common Facilities on the Plan, in
accordance with the Plan and the Governmental Approvals and
shall construct the Building shell (`Building Shell") as more fully
described herein (the "Landlord's Work"). Such Landlord's Work
shall include, but not be limited to:
(a) parking areas, curbing and driveways
including those located within the Premises and all
improvements necessary for safe and efficient
ingress and egress to and from Carlisle Pike and
Route 114;
(b) a 1,000 gallon (or such greater volume
as may be required by applicable laws) grease trap;
(c) water (fire and domestic), sewer,
telephone, electric, cable television and gas service
lines and appurtenances up to the rear of the
Building (as depicted in the Red Robin Design &
Construction Update Specifications Booklet as the
same may be hereafter modified ("Red Robin
Specs"), a copy of which was previously provided
to Landlord) and otherwise as necessary for use in
any of the other buildings in the Center (except
that Tenant shall be responsible for its own utility
lines and connections within the Building);
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(d) storm water drainage swales, basins,
facilities and structures;
(e) parking lot lighting within the Common
Areas and within the Premises;
(f) a secure, well-lit enclosed exterior
dumpster pad available for access only by Tenant,
reasonably convenient to the Premises and of a size
sufficient to accommodate efficiently a 6' x 6' x 6'
trash dumpster, a 6' x 6' x 6' recycling container
and a 5' x 3' x 4' grease container.
(g) all landscaping and irrigation systems;
(h) off-site highway, traffic or other
improvements required by the Plan or
Governmental Approvals;
(i) signage as hereafter described; and
0) sidewalks.
Tenant shall pay or reimburse Landlord for fees to providers of
any of the services described in the foregoing sentence for
connections, tap-in, capacity, hookup or commencement of
service in an aggregate amount not in excess of $30,000.00.
Landlord shall be responsible for payment of any commencement,
tap-in, capacity, hook up or commencement fees to the extent the
same exceed $30,000.00.
ii. The Building Shell to be completed by Landlord
shall be completed in all respects in accordance with Red Robin
Specs which have been initialed by both parties, an initialed copy
provided to Landlord, and which are incorporated herein by this
reference and made a part hereof, and shall include the following:
• Crushed stone (2B modified stone) for
flooring of a depth of four (4) inches (Tenant will place
stone in Premises at Tenant's expense);
13
• A rounded main entry vestibule bump out
having a radius of approximately twelve feet;
• An exterior patio area having dimensions as
shown in the current Red Robin Prototype Design RR
99.4 ("Prototype") prescribed by Franchisor, provided
that Landlord shall reduce the size of other spaces in the
Center to accommodate such patio, if necessary;
• Mounting and installation on the Building
roof of Tenant's heating, ventilation and air conditioning
and refrigeration equipment (including necessary roof
penetrations);
• Incorporation of Red Robin architectural
features as included in the Prototype prescribed by
Franchisor, including any cosmetic modifications to
exterior facades and roof lines required; and
• A service corridor at the rear of the
Building of 214.5 square feet (at least 6 (6) feet in width
and thirty-five (35) feet, nine (9) inches in length) to
accommodate a service entrance, deliveries and trash
removal to and from the door shown in Layout Plan A2.3
of the Red Robin Specs, in which corridor Tenant may use
to construct a secure keg storage area to hold
approximately twelve (12) beer kegs .
In connection with the design and construction of the Building
Shell by Landlord, Landlord's architects, engineers and design
professionals shall coordinate and consult with Tenant's
architects, engineers and design professionals and, as necessary,
with the architects, engineers and design professionals of
Franchisor. Tenant shall provide to Landlord or Landlord's
architects, on compact disc or in other suitable electronic format
plans of the Prototype design. The final design of the Building
Shell shall be mutually approved by Landlord and Tenant.
iii. Prior to the turnover of the Building Shell to
Tenant, Landlord shall provide, temporary electric, water and
telephone service satisfactory for use during construction (provided
that Tenant shall pay the cost of the utility services delivered to the
Premises).
14
iv. Landlord's Work shall be performed in a good and
workmanlike manner. Any of Landlord's Work that is performed
after commencement of the fit-up of the Building by Tenant shall
be coordinated so as not to unreasonably interfere with Tenant's
contractor's work.
V. In addition to all other Landlord's Work, Landlord
shall provide to Tenant within thirty (30) days of execution of this
Lease a satisfactory Phase I environmental assessment covering
the Premises suitable for presentation to Tenant's institutional
lender.
vi. All of Landlord's Work necessary for turnover of
the completed Building Shell to Tenant, for issuance of a building
permit for fit-up of the Building or to facilitate Tenant's Work (as
hereafter described) shall be completed no later than January 1,
2001. All of Landlord's Work necessary for issuance of a
certificate of occupancy for the Building and for the complete
operations of Tenant's business (including such improvements as
may be required for safe and efficient ingress and egress to the
Premises by customers, employees, vendors and other invitees
and all required signage) shall be completed no later than sixty
(60) days after turnover of the Building Shell by Landlord to
Tenant.
vii. The parties acknowledge and agree that Tenant has
heretodate expended significant sums and will hereafter expend
additional substantial additional sums in reliance of Landlord's
commitments to promptly perform the Landlord's Work in
accordance with this Lease. Tenant's obligation to pay Base Rent
as specified in Section 4 shall be reduced by one (1) day for each
day by which Landlord fails to meet the dates specified in clause
vi of this subsection 7b or in the Turnover Notice (as hereafter
defined), subject to delays of force majeure under Section 27.
viii. Not less than ninety (90) days prior to the date on
which Landlord shall have completed the Building Shell and all
work necessary for issuance of a building permit to Tenant, for
fit-up of the Building or to facilitate Tenant's Work (as
hereinafter described), Landlord shall provide written notice to
Tenant substantially in the form attached hereto as Exhibit "C,"
specifying the date on or before which all such work shall be
completed and the Building shall be turned over to Tenant for
commencement of Tenant's Work ("Turnover Notice").
15
Turnover of the Building Shell by Landlord to Tenant and
completion of all of Landlord's Work required in the fist
sentence of clause vi of this subsection 7b shall be accomplished
on or before the date stated in the Turnover Notice.
C. Storefrout Access. To the extent that the Landlord has a vacant storefront
in the Center (without the obligation of Landlord to delay leasing or otherwise
taking action to insure that a storefront is available) during the period from March
1, 2000 to and including April 9, 2000, the Landlord shall make the vacant
storefront available to the Tenant for the sole purpose of Tenant conducting
interviews with persons applying for employment with the Tenant at the Premises.
The Tenant agrees that if the Landlord is able to make a vacant storefront
available to Tenant during the aforesaid period, Tenant shall indemnify and hold
Landlord harmless from all claims, liabilities, and expenses (including reasonable
attorney fees) relating to or arising out of the actions of the Tenant, its officers,
directors, employees, agents and invitees in connection with the rights granted to
the Tenant by Landlord under this Section 6.c.
8. TENANT'S WORK.
a. Description of Tenant's Work; Building Requirements. Tenant
shall complete, within the boundaries of the Premises, fit-up of the Building (the
"Tenant's Work").
b. Construction. After turnover of the Building Shell by Landlord to
Tenant, Tenant shall commence Tenant's Work in accordance with Tenant's
final plans and specifications. The Building fit-up shall be completed in a good
and workmanlike manner and in accordance with all legally applicable codes,
laws, ordinances and regulations and the standards and ratings of the local fire
insurance rating organization. The building permit (and plumbing and electrical
permits if applicable) required for completion of the Building fit-up shall be
obtained by Tenant. Landlord shall cooperate with Tenant in Tenant's efforts to
obtain any required building permits. Tenant acknowledges that the patio
portion of the Premises encroaches slightly within the sanitary sewer easement
of the Silver Spring Township Sewer Authority and agrees that the Authority
and/or the Landlord shall have the right, in connection with the repair or
replacement of the sewer line within the sewer easement, or exercising any other
rights of the Authority under the terms of the sewer easement agreement, to
temporarily remove the supports or other portions of the patio located within the
sewer easement, so long as such activities do not prevent the Tenant from
conducting business on the Patio, does not endanger the safety of persons using
the Patio, and the Patio is restored to a condition which is as good as or better
than the original condition of the Patio.
16
c. Progress of the Work. Tenant shall prosecute Tenant's Work to
completion with diligence and shall complete fit-up of the Building within five
(5) months of the commencement of construction, subject, however, to
unavoidable delays, such as delays due to strikes, acts of Cod, inability to obtain
labor or materials, governmental restrictions, enemy action, civil commotion,
fire, unavoidable casualty, delay caused by the manner or timing of prosecution
of the Landlord's Work, or similar causes beyond the reasonable control of
Tenant
d. Environmental Conditions. Without limitation of any other rights
which Tenant may have under this Lease, in the event the Tenant or its
contractors discover, during the course of construction, an underground storage
tank or other subsurface condition involving the presence of Hazardous
Substances (as defined elsewhere in this Lease) then the Tenant shall have the
right to discontinue construction and Landlord shall forthwith proceed to correct
such environmental condition so as to bring the Premises into compliance with
applicable laws and regulations. If the Landlord fails to do so within a
reasonable period of time, but in no event later than one year from the date
Landlord is notified of Tenant's discovery, Tenant shall have the right at any
time thereafter (until the condition is corrected as required herein) to demand
and receive a refund of any rents theretofore paid to the Landlord and terminate
this Lease and Tenant shall have no liability or further obligation under this
Lease or otherwise. Any dates or periods for payment of rent or performance of
obligation under this Lease shall be deferred until correction of the condition or
termination of this Lease, as aforesaid.
e. Insurance. Prior to the commencement of any construction activities
with respect to the Building, Tenant shall furnish Landlord with proof that: (i)
Tenant and Tenant's contractor have procured valid and subsisting public
liability insurance naming the Landlord, as additional insured, in an amount not
less than $1,000,000 for personal injuries and property damage, per occurrence,
and in the aggregate and (ii) that either Tenant or Tenant's contractor have
obtained builder's all-risk insurance with extended coverage in an amount, in
form and issued by a company satisfactory to Landlord, which provides
adequate coverage in the event of a loss for the completion of construction of the
Building and coverage of all building materials upon the Premises during the
construction of the Building and (iii) Tenant's contractor has obtained
workman's compensation coverage covering the full statutory liability of
Tenant's contractor as an employer.
9. ADDITIONAL COVENANTS OF TENANT. Tenant will not:
a. willfully damage the Center, the Premises or any part of the
Building;
17
b. bring into or permit to be kept in the Center or the Premises any
dangerous, explosive or obnoxious substances;
c. bring into the Building or use any equipment that might be harmful
thereto or harmful or annoying to others in the Center;
d. conduct itself or permit its agents, servants, employees or invitees to
conduct themselves in a manner that in Landlord's judgment reasonably
exercised is unsafe or is a substantial disturbance to the occupancy by any other
tenants of their premises in the Center or which would invalidate insurance
coverages upon any part of the Center or substantially increase the premiums for
such insurance; or
e. except as allowed in subsection 6c, vacate or abandon the Building or
permit the Building to be emptied or unoccupied;
f. except as allowed in subsection 6c, cease to operate a restaurant at
the Building;
g. use or occupy the Premises for any unlawful purpose;
h. use or occupy the Premises, or permit the same to be used or
occupied, for any purpose or business deemed extrahazardous on account of fire
or otherwise;
i. permit, allow or cause any public or private auction or sale which
would indicate to the public that Tenant is bankrupt, is going out of business or
has lost its lease;
j. permit accumulations of any refuse but will remove the same and
keep such refuse in odor-proof, rat-proof containers shielded from the view of
public until removed and will not burn any refuse whatsoever;
k. solicit business, distribute handbills or other advertising matter or
hold demonstrations in the parking areas or other Common Areas;
1. permit the parking of delivery vehicles so as to unreasonably
interfere with the use of any driveway, walk, parking area or other Common
Areas in the Shopping Center; and
m. permit loudspeakers, televisions, radios or other similar devices to be
used in a manner so as to constitute a nuisance to or interference with the safety,
comfort or convenience of Landlord or of any other occupant or user of the
Center.
18
Tenant will:
a. keep the Premises in such repair and condition as may be required
by the Board of Health, or other municipal state or federal authorities, free of all
cost to Landlord;
b. permit the Landlord and its agents to enter upon the Premises at all
reasonable times to examine the condition thereof, provided that such inspections
shall not interfere with the conduct of Tenant's business on the Premises;
C. keep (i) the interior of the Building reasonably clean and (ii) the
rest of the Premises and all loading areas serving the Premises in a clean, orderly
and sanitary condition and free of insects, rodents, vermin and other pests.
d. enforce all requirements established by Landlord for parking of
employee vehicles in designated areas of the Common Area.
10. SIGNAGE.
a. Signaee by Landlord. In addition to all work included as
Landlord's Work hereunder, Landlord shall, prior to the Commencement Date,
subject to all applicable laws, ordinances, rules and regulations of governmental
authorities having jurisdiction, cause to be constructed appropriate signage,
reasonably acceptable to Tenant and specifically identifying Tenant's business,
directing traffic to Tenant's establishment as follows:
Signage, in no lower than the second position on all Center pylon or
monument signs, identifying Tenant as a tenant at the Center.
Tenant shall provide such artwork as may be necessary for completion of the signage
described in this subsection 10.
b. Buildine Sgnage. Tenant shall, at Tenant's expense, install signage,
substantially as shown on the Prototype, on two sides of the Building. Tenant
shall obtain such governmental approvals and permits as may be necessary in
order to install such signs.
11. TENANT'S ALTERATIONS.
Tenant shall make no alterations, additions or improvements ("Tenant Improvements") to
the Building which materially alter the exterior appearance or structure (including supporting
interior walls and the roof) of the Building from that which is depicted on Tenant's final plans
and specifications without the prior written consent of Landlord, which consent shall not be
19
unreasonably withheld. If Landlord consents to such Tenant Improvements, it may impose such
reasonable conditions with respect thereto as Landlord deems appropriate, including, without
limitation, requiring Tenant to furnish insurance and copies of the plans, specification and
permits necessary for such work. All Tenant Improvements shall be done in a first class,
workmanlike manner and shall comply with all insurance requirements and all applicable laws,
ordinances, rules and regulations of governmental authorities having jurisdiction.
12. MECHANIC'S LIENS.
Prior to Tenant or Landlord performing any construction or other work on or about the
Center or Premises for which a lien could be filed against the Premises or the Building, Tenant
or Landlord, as the case may be, shall enter into a written waiver of liens agreement with the
contractor who is to perform such work, and such written agreement shall be filed, in accordance
with the Mechanics' Lien Law of the Commonwealth of Pennsylvania prior to the
commencement of such work. Notwithstanding the foregoing, if any mechanics' or other lien
shall be filed against the Premises or the Building purporting to be for labor or material
furnished or to be furnished at the request of the Tenant, then Tenant shall at its expense cause
such lien to be discharged of record by payment, bond or otherwise, within 30 days after Tenant
receives notice of the filing thereof. If any mechanics' or other lien shall be filed against the
Premises or the Building purporting to be for labor or material furnished or to be furnished at the
request of Landlord, then Landlord shall at its expense cause such lien to be discharged of record
by payment, bond or otherwise, within thirty (30) days after Tenant receives notice of the filing
thereof. If either party shall fail to cause such lien to be discharged by payment, bond or
otherwise within such period, the other party may cause such lien to be discharged by payment,
bond or otherwise, without investigation as to the validity thereof or as to any offsets or defenses
thereto, and the parry which failed to cause such lien to be discharged shall, upon demand,
reimburse the other party for all amounts paid and costs incurred, including attorneys' fees, in
having such lien discharged of record.
13. CONDITION OF PREMISES; LANDLORD'S REPRESENTATIONS.
a. Landlord represents and warrants that:
i. Landlord has no knowledge of any impending or
imminent public assessments against the Land;
ii. Landlord has the authority to execute the. Lease, and
upon execution, it shall be legally binding upon Landlord in
accordance with its terms:
iii. there is no present litigation involving Landlord on
the Demises Premises which could materially and adversely affect
the Tenant's intended use thereof;
20
iv. to the best of Landlord's knowledge, no Hazardous
Substances (as elsewhere specifically defined in this Lease) are
present on or under the Premises; and
V. Landlord has no knowledge of any pending
condemnation proceedings pertaining to the Demises Premises.
14. LANDLORD SERVICES.
a. Common Area. Landlord will operate and maintain or will cause to
be operated and maintained, the Common Area and Common Facilities in a
manner characteristic of first class retail centers in the central Pennsylvania area.
Without limiting the foregoing, provided Tenant is not in default under any of the
provisions of this Lease, Landlord shall provide for cleaning, maintenance,
repaving, repairing, and snow and ice removal of the Common Area, including
but not limited to landscape maintenance for any landscaped areas within the
Common Area, as well as any work to the Common Area or Common Facilities
that is required by law. Without limitation of the foregoing, the Common Area
shall be policed regularly (and not less often than daily) for the removal of litter
and debris and shall be lighted at night during at least the hours of operation of the
Tenant.
b. Liabilitv Insurance. Landlord agrees to maintain comprehensive
public liability insurance covering all of the Common Area and Common
Facilities in an amount of not less than $1,000,000 per occurrence and $3,000,000
in the aggregate.
15. ASSIGNMENT AND SUBLETTING.
a. Limitation on Assignment. No assignment of this Lease or
subleasing of the Premises or any part thereof shall be made without the prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, no consents or approvals shall be
required if Tenant wishes to assign such Lease to any person, firm or corporation
acquiring substantially all of Tenant's assets or which is owned or controlled by
Tenant or Tenant's shareholders or affiliates.
b. Tenant Not Released. Except as permitted in subsection 15a, no
subletting or assignment without Landlord's consent shall release Tenant of
Tenant's obligation or alter the primary liability of Tenant to pay the rental and to
perform all other obligations to be performed by Tenant hereunder. The
acceptance of rental by Landlord from any other person shall not be deemed to be
a waiver by Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment or
21
subletting. In the event of default by any assignee of Tenant pursuant to an
assignment not consented to by Landlord or permitted in subsection a of this
Section 15, in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies against such
assignee or successor.
16. REPAIRS; MAINTENANCE.
a. Building Interior. Tenant shall make, at its sole cost and expense, all
repairs necessary to maintain the interior of the Building, including without
limitation, all windows and doors and glass, plumbing, heating, ventilation, air
conditioning and electric lines, pipes, fixtures and equipment (but excluding any
repairs or replacements required as a result of defective, substandard or non-
compliant performance of Landlord's Work) and shall keep the interior of the
Building and the fixtures therein in neat and orderly condition and good state of
repair, normal wear and tear and casualty excepted. Tenant shall keep the
sidewalk immediately surrounding the Building and the landscaped areas adjacent
to the foundation of the Building in neat and orderly condition and free of vermin
and offensive odors. If Tenant refuses or neglects to perform such maintenance or
repairs, or fails to diligently prosecute the same to completion, after thirty(30)
days prior written notice from Landlord of the need therefor, Landlord may make
such repairs at the expense of Tenant and such expense shall be collectible as
Additional Rent. Any such repairs and any labor performed or materials
fiunished in, on or about the Premises shall be performed and furnished by
Tenant in strict compliance with all applicable laws, regulations, ordinances and
requirements of all duly constituted authorities or governmental bodies having
jurisdiction over the Building, the requirements of any board of underwriters
having jurisdiction thereof, as well as any reasonable regulations imposed by
Landlord pertaining thereto.
b. Building Exterior and Structure. Landlord shall maintain, repair
and replace, at its sole cost and expense, any of the structural elements of the
Building, including but not limited to the roof, exterior walls (excluding doors and
windows), interior weight-bearing walls, foundation, windows and all other
structural elements of the Premises. If Landlord refuses or neglects to perform
such maintenance or repairs, or fails to diligently prosecute the same to
completion, after thirty (30) days written notice from Tenant and Landlord shall
reimburse Tenant for any such expense, within thirty (30) days after being
invoiced therefor. In the event that Landlord fails to reimburse Tenant in
accordance with the foregoing sentence, Tenant may deduct the amount of such
expenses from the Base Rent due from Tenant to Landlord.
22
c. Common Area and Common Facilities. Landlord shall make, at its
sole cost and expense, all repairs necessary to maintain the Common Area and the
Common Facilities, including such portions of the Common Area and the
Common Facilities as may be included in the Premises. Landlord shall keep all
parking areas and sidewalks in a neat and orderly condition, free of vermin and
offensive odors. Landlord shall keep all grass, shrubbery and landscaping neatly
trimmed and shall cause snow and ice to be removed from all sidewalks and
paved areas (including such sidewalks and paved areas as are immediately
adjacent to the Building) free and clear of snow and ice within a reasonable time
after snow fall. If Landlord refuses or neglects to perform such maintenance or
repairs, or fails to diligently prosecute the same to completion, after thirty (30)
days written notice from Tenant and Landlord shall reimburse Tenant for any such
expense, within thirty (30) days after being invoiced therefor. In the event that
Landlord fails to reimburse Tenant in accordance with the foregoing sentence,
Tenant may deduct the amount of such expenses from the Base Rent due from
Tenant to Landlord.
17. HAZARDOUS SUBSTANCES.
a. The term "Hazardous Substances," as used in this Lease, shall
include, without limitation, flammable, explosive or radioactive materials,
asbestos, PCB's, chemicals known to cause cancer or reproductive toxicity,
pollutants, contaminants, hazardous wastes, toxic substances or related materials,
petroleum and petroleum products, and substances declared to be hazardous or
toxic under any law or regulation now or hereafter enacted or promulgated by any
governmental authority.
a. Tenant shall not use, generate, release, manufacture, refine, produce,
process store, or dispose of any Hazardous Substance on, under, or about the
Premises, in violation of law. Notwithstanding the foregoing, Tenant shall have
no liability of any kind or nature arising from the presence of any Hazardous
Substances upon or under the Premises which either (i) existed thereon or
thereunder prior to the date of this Lease or (ii) are released, spilled, deposited or
otherwise conveyed upon or under the Premises by any person or entity other
than Tenant, its agents, employees and contractors.
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18. SURWNDER OF PREW$FF .
At the end of the Term of this Lease, Tenant shall surrender the Premises to Landlord,
together with all alterations; additions' and improvements thereto, in broom clean condition and in
good order and repair except for ordinary wear and tear. If Tenant is not then in default under
any of the terms hereof, Tenant shall have the right to remove any equipment, furniture, trade
fixtures (including but not limited to any vault) or other personal property placed in the Building
by Tenant, provided that Tenant promptly repairs any damage to the Building caused by such
removal. Tenant shall repair all damage to the Premises caused by such removal and restore the
Premises to the condition in which they were prior to the installation of the items so removed.
Tenant shall surrender the Premises to Landlord at the end of the Tenn hereof, without notice of
any kind, and Tenant waives all right to any such notice as may be provided under any laws now
or hereafter in effect in Pennsylvania. If Tenant shall fail to remove any of its equipment,
furniture, trade fixtures or other personal property within 30 days after expiration of the Term,
Landlord may remove and store the same at the expense of Tenant or sell the same on behalf of
Tenant at public or private sale in such manner as is commercially reasonable, with any proceeds
thereof to be first applied to the costs and expenses, including attorney's fees, of the storage and
sale and the payment of any amounts owed hereunder by the Tenant.
19. INDEMNIFICATION AND INSURANCE.
a. Indemnitv. Tenant covenants and agrees that it shall, without notice
or demand and at its own cost and expense, indemnify, defend and save harmless
Landlord against and from any loss, cost, liability, claim or damage suffered or
incurred by Landlord as a result of:
i. the negligent use and occupancy of the Premises by
Tenant, its agents, and employees,
ii. any willful failure by Tenant to perform any of the
terms or conditions of this Lease required to be performed by
Tenant,
iii. any failure by Tenant to comply with any statutes,
regulations, ordinances or orders of any governmental authority, or
iv. any accident, death, injury, or damage, loss or theft
of property in or about the Premises (whether involving property
belonging to Tenant or any other person) to the extent resulting
from the negligence or willful misconduct of Tenant or any agent
or employee of Tenant who is acting on behalf of the Tenant at the
time of such incident
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b. InsRranee. Tenant shall keep in force public liability insurance with
respect to the Premises, with companies and in reasonable form acceptable to the
Landlord to afford protection of not less than Three Million ($3,000,000.00)
Dollars for anyone accident, and One Million ($1,000,000.00) Dollars for injury
to any one individual with respect to personal injury or death and property
damage, and naming the Landlord as an additional insured and providing thirty
(30) days' notice of cancellation. Such limits may be increased by Landlord upon
written notice to Tenant, based upon Landlord's reasonable determination of a
commercially reasonable level of liability insurance, taking into consideration the
particular use of the Premises by the Tenant. Copies of such policies shall be
delivered to Landlord once per calendar year.
C. Loss. As to any loss or damage which may occur upon the
property of a party hereto, such party hereby releases the other, to the extent of
such damaged party's insurance coverage, from any and all liability for such loss
or damage even if such loss or damage shall be brought about by the fault or
negligence of such other party, or the agent or employees of such other parry;
provided, however, that this release shall be effective only with respect to loss or
damage occurring during such time as the applicable policies of insurance shall
contain a clause to the effect that this release shall not affect said policies or the
right of the insured to recover thereunder. If any policy does not contain such a
clause, the insured party shall, at the written request of the other party to this
Lease, have such a clause added to said policy if an endorsement so providing is
obtainable. The patio area of the Premises, as designed by the Tenant, extends
near or to a retaining wall which is part of the Center. The Tenant agrees to take
full responsibility for providing railings, fencing, walls or other improvements on
the patio area to provide for the safety of any persons, including, but not limited
to, Tenant's employees, customers, and invitees on the Premises, using the patio
area. Tenant farther agrees to indemnify and hold harmless the Landlord from
any claims arising from the use of the patio area of the Premises, including, but
not limited to, the safety of the design of the patio area and any personal injury,
death or property damage arising therefrom. Tenant agrees that any public
liability insurance policy obtained by the Tenant under this subparagraph shall not
exclude coverage for claims of personal injury, death and/or property damage
arising from the use of the patio area of the Premises.
20. FIRE OR OTHER CASUALTY.
If the Building is damaged in whole or part by fire or other casualty, the damages shall be
repaired promptly by and at the expense of Landlord and the Base Rent shall abate during any
period during which the Building cannot be occupied by Tenant, in Tenant's reasonable
determination, as a result of such casualty or Landlord's repairs. Tenant agrees to promptly
repair damage to the interior of the Building arising from any casualty.
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21. CONDEMNATION.
a. Total Condemnation. If the entire Premises or the Building shall be
condemned for public use, then and in that event, upon the vesting of title to the
same for such public use, this Lease shall terminate. In the event of such
termination of this Lease, all rent paid in advance shall be apportioned as of the
date of such termination.
b. Partial Condemnation. Notwithstanding the foregoing, if only a part
of the Premises shall be so taken and the part not so taken shall be sufficient for
the operation of Tenant's business, Tenant shall retain the part not so taken and
there shall be a proportional reduction in the Base Rent and Additional Rent.
Tenant shall be entitled to make such claims for proceeds of condemnation as to
which the Tenant may be entitled as a matter of law, and shall apply the proceeds
first to the restoration of the Premises. Notwithstanding the foregoing, if the
proceeds of condemnation of the Premises or any part thereof is not sufficient to
restore the Premises to a condition usable for its purpose at the time of
condemnation, then the Tenant may tender the transfer and assignment of any
such proceeds to the Landlord and this Lease and any liability and obligation of
Tenant shall thereupon be terminated, null and void.
c. Temporary Taking. This Lease shall not be affected if any
governmental or other authority having the power of eminent domain shall by the
exercise of such power of eminent domain take the use or occupancy of the
Premises or any part thereof for a temporary period not in excess of one hundred
twenty (120) days (hereafter "temporary taking"). Base Rent and all Additional
Rent and other charges payable by the Tenant under this Lease, shall be abated
pro rata during the temporary taking. Except only to the extent that the Tenant
may be prevented from so doing pursuant to the terms of the order of the
condemning authority, Tenant shall continue to perform and observe all its other
obligations under this Lease, as though the temporary taking had not occurred.
Landlord shall be entitled to receive the entire amount of any award made for the
temporary taking, whether paid by way of damages for lost rentals. Tenant shall
not be prohibited from seeking to recover from the condemnor compensation for
loss of business and relocation expenses provided the same does not diminish the
amount received by Landlord. The Tenant covenants that, upon the termination of
any temporary taking, prior to the expiration of the Term, it will, at its sole cost
and expense, restore the Premises, as nearly as may be reasonably possible, to the
condition in which the same were immediately prior to the temporary taking. Any
taking depriving Tenant of the use and occupancy of the Premises, or any part
thereof which materially interferes with Tenant' s ability to conduct its business
therein, for in excess of one hundred twenty (120) days shall permit Tenant to
terminate this Lease by written notice to Landlord delivered within ten (10) days
after the expiration of such period.
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d. Tonaut's Riebhts. Nothing herein shall be deemed to prohibit Tenant
from seeking to recover from the condemnor compensation for loss of business
and relocation expenses provided the same does not diminish the amount received
by Landlord.
22. ESTOPPEL CERTIFICATES.
At any time, and from time to time, upon the written request of Landlord or any "Mortgagee"
(as defined in Section 29 hereof), Tenant shall, within fifteen (15) days of the date of receipt of
such written request, execute and deliver to Landlord and/or such Mortgagee, a written statement
containing the following information, to the extent true and correct and to the best of the Tenant's
knowledge: (a) ratifying this Lease; (b) confirming the Commencement Date and expiration of
the Term of this Lease; (c) certifying that Tenant is in occupancy of the Premises, and that the
Lease is in full force and effect and has not been modified, assigned, supplemented or amended
except by such writings as shall be stated; (d) reciting the amount of advance rent, if any, paid by
Tenant and the date to which such rent has been paid; (e) reciting the amount of security
deposited with Landlord, if any; and (f) any other information which Landlord or the Mortgagee
shall reasonably require. The failure of Tenant to execute, acknowledge and deliver to Landlord
and/or any Mortgagee a statement in accordance with the provisions herein within the period set
forth herein shall constitute an acknowledgment by Tenant which may be relied upon by any
person holding or intending to acquire any interest whatsoever in the Premises or the Building
that this Lease has not been assigned, amended, changed or modified, is in full force and effect
and that the Base Rent, and Additional Rent have been duly and fully paid not beyond the
respective due dates immediately preceding the date of the request for such statement and shall
constitute as to any persons entitled to rely on such statements a waiver of any defaults by
Landlord or defenses or offsets against the enforcement of this Lease by Landlord which may
exist prior to the date of the written request, and Landlord, at its option, may treat such failure as
an Event of Default.
23. DEFAULT.
The occurrence of any of the following shall constitute an event of default and breach of this
Lease by Tenant (an "Event of Default"):
a. A failure by Tenant to pay, when due, any installment of rent
hereunder or any such other sum herein required to be paid by Tenant where such
failure continues for ten (10) days after Landlord gives Tenant written notice that
such installment is past due; provided that Landlord shall not be obligated to give
Tenant notice of late payments more than two (2) times in any twelve (12)
consecutive month period, and on the third time a payment is not made on or
before the payment is due, an immediate event of default shall occur hereunder,
without notice to Tenant or grace period.
b. A failure by Tenant to observe and perform any other terms or
conditions of this Lease to be observed or performed by Tenant, where such
27
failure continues for thirty (30) days after written notice thereof from Landlord to
Tenant or, if thirty (30) days is not a reasonably sufficient time for the cure of
such failure, then for such reasonable additional time as may be necessary, so long
as such cure is diligently pursued.
c. The making by Tenant of any assignment for the benefit of creditors;
an adjudication that Tenant is bankrupt, insolvent, or unable to pay its debts; the
filing by or against Tenant of a petition in bankruptcy or of a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in the
case of a petition filed against Tenant, the same is dismissed within sixty (60)
days after the filing thereof); the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located in the Premises or of
Tenant's interest in this Lease (unless possession is restored to Tenant within
thirty (30) days after such appointment); or the attachment, execution or levy
against, or other judicial seizure of, substantially all of Tenant's assets located in
the Premises or of Tenant's interest in this Lease (unless the same is discharged
within thirty (30) days after issuance thereof).
d. The failure of Tenant to open for business to the public in the
Premises within one (1) year from the date of Landlord's completion of Landlord's
Work.
24. REMEDIES.
Upon the occurrence of any Event of Default Landlord's remedies shall be:
a. Landlord may perform for the account of Tenant any such act, the
omission of which constituted a default by Tenant and immediately recover as
Additional Rent any expenditures made and the amount of any obligations
incurred in connection therewith, plus interest at the Default Rate (hereafter
defined) from the date the obligations are incurred by Landlord until payment
therefor to Landlord, whether before or after entry of judgment and issuance of
execution thereon.
b. Landlord may, upon fifteen (15) days prior written notice, accelerate
and declare to be immediately due and payable all Base Rent and Additional Rent
due for the balance of the Term of this Lease minus the fair market rental value of
the Premises for the balance of the Term of this Lease. Actual rents achieved by
an anus-length re-letting of the Premises following termination of this Lease shall
be determinative of the fair market rental value of the Premises (or the part thereof
which is re-let) for the term of such re-letting. In the absence of a re-letting of the
Premises, the fair market rental value of the Premises shall be determined by
competent appraisal. In determining the amount of any future payments due
Landlord relating to operating Expenses and/or Real Estate Taxes, Landlord may
28
make such determination based upon the most recent estimates of operating
Expenses and/or Real Estate Taxes available.
c. Landlord may if the said Event of Default is not cured within fifteen
(15) days after written notice to Tenant, serve notice upon Tenant that this Lease
and the then unexpired term hereof shall cease and expire and become absolutely
void on the date specified in such notice. Upon such termination, Tenant shall
immediately quit and surrender to Landlord the Premises, and Landlord may
enter into and repossess the Premises by summary proceedings, detainer,
ejectment or otherwise and remove all occupants thereof and, at Landlord's
option, any property thereon without being liable to indictment, prosecution or
damages therefor,
d. Landlord may, if the said Event of Default is not cured within fifteen
(15) days after written notice to Tenant, re-enter and repossess the Premises and
any part thereof and attempt using commercially reasonable efforts, as agent for
Tenant if this Lease has not been terminated, or on its own behalf if this Lease has
been terminated, to relet all or any part of the Premises for and upon such terms
and to such persons and for such period or periods as Landlord, in its reasonable
discretion, shall determine, including a term beyond the termination of this Lease;
and Landlord shall not be required to accept any tenant offered by Tenant or
observe any instruction given by Tenant about such reletting. For the purpose of
such reletting, Landlord may decorate or make repairs, changes, alterations or
additions in or to the Premises to the extent deemed by Landlord desirable or
convenient; and the cost of such decoration, repairs, changes, alterations or
additions shall be charged to and be payable by Tenant as Additional Rent
hereunder, as well as any reasonable brokerage and attorneys fees incurred by
Landlord; and any sums collected by Landlord from any new tenant obtained shall
be credited against the balance of the rent due hereunder as aforesaid. Unless this
Lease has been terminated, Tenant shall pay to Landlord monthly, on the days
when the rent would have been payable under this Lease, the amount due
hereunder less the amount obtained by Landlord from such new tenant;
e. Landlord shall have the right of injunction, in the event of a breach or
threatened breach by Tenant of any of the terms and conditions hereof, to restrain
the same and the right to invoke any remedy allowed by law or in equity, whether
or not other remedies, indemnities or reimbursements are herein provided. The
rights and remedies given to Landlord in this Lease are distinct, separate and
cumulative remedies; and no one of them, whether or not exercised by Landlord,
shall be deemed to be in exclusion of any of the others.
f. "Default Rate" shall mean a floating rate of interest per annum equal to
two percent (2%) above the national prime rate of interest published in the
"Money Rates" section of the Wall Street Journal, as the same may be in effect
and change from time to time while the Event of Default continues.
29
25. WAIVER
The failure or delay on the part of landlord to enforce or exercise at any time any of the
terms and conditions of this Lease shall in no way be construed to be a waiver thereof, nor in any
way to affect the validity of this lease or any part hereof, or the right of Landlord to thereafter
enforce each and every such term or condition. No waiver by Landlord of any breach of this
Lease shall be held to be a waiver of any other or subsequent breach. The receipt by Landlord of
rent at a time when the rent is in default under this Lease shall not be construed as a waiver of
such default. The receipt by Landlord of a lesser amount than the rent due shall not be construed
to be other than a payment on account of the rent then due, nor shall any statement on Tenant's
check or any letter accompanying Tenant's check be deemed an accord and satisfaction, and
Landlord may accept such payment without prejudice to Landlord's right to recover the balance
of the rent due or to pursue any other remedies provided in this Lease. No act or thing done by
this Lease shall be deemed an acceptance or a surrender of the Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
26. OUIET ENJOYMENT.
If and so long as Tenant pays the rent reserved hereunder and observes and performs all the
terms and conditions on Tenant's part to be observed and performed hereunder, Tenant shall and
may peaceably and quietly have, hold and enjoy the Premises for the entire Term hereof, subject
to all of the provisions of this Lease.
27. FORCE MAJEURE.
Time periods for Landlord's or Tenant's performance of their respective obligations under
any of the terms of this Lease (other than Tenant's obligation to pay Base Rent and Additional
Rent when due) shall be extended for periods of time during which such parry's performance is
prevented due to circumstances beyond its reasonable control, including without limitation,
strikes, embargoes, moratoriums, governmental regulations, acts of God, war or other strife,
extraordinary weather conditions, and unavailability of materials.
28. SUCCESSORS.
The respective rights and obligations provided in this Lease shall bind and shall inure to the
parties hereto, and their successors and permitted assigns.
29. SUBORDINATION.
a. Tenant agrees to subordinate its interest in the Premises to the lien of
any mortgage, now existing or hereafter created, against Landlord's leasehold
interest in the Center ("Mortgage") provided each mortgagee holding a Mortgage
("Mortgagee") executes a Subordination, Nondisturbance and Attornment
Agreement in form as attached hereto as Exhibit "D" ("Subordination
30
Agreement") or in such modified form as a Mortgagee may reasonably request, so
long as the substance of the Subordination Agreement is preserved.
b. Tenant's obligations under this Lease are conditioned upon Landlord
providing Tenant, within sixty (60) days of the date of execution of this Lease,
and again within five (5) business days of the execution and delivery of each and
every new Mortgage, with a Subordination Agreement executed by each
Mortgagee now holding or acquiring a Mortgage upon the Center.
c. Notwithstanding anything to the contrary set forth above, any
Mortgagee may at any time subordinate its Mortgage to this Lease, without
Tenant's consent, by execution of a written document subordinating such
Mortgage to this Lease to the extent set forth therein, and thereupon this Lease
shall be deemed prior to such Mortgage to the extent set forth in such written
document without regard to their respective dates of execution, delivery and/or
recording and in that event, to the extent set forth in such written document, such
Mortgagee shall have the same rights with respect to this Lease as though this
Lease had been executed and a memorandum thereof recorded prior to the
execution, delivery and recording of the Mortgage as though this Lease had been
assigned to such Mortgagee. Should Landlord or any Mortgagee or purchaser
desire confirmation of the status of the subordination of any Mortgage to this
Lease or of this Lease to any Mortgage or as to whether Tenant has attorned to the
rights of any Mortgage, as the case may be, Tenant upon written request, and from
time to time, will execute and deliver without charge and in form reasonably
satisfactory to Landlord, the Mortgagee or the purchaser all instruments and/or
documents that may be reasonably required to acknowledge such subordination
and/or agreement to attom, in recordable form within fifteen (15) days following a
written request therefor from Landlord. In the event Tenant fails to execute and
deliver the instruments and documents as provided for herein within the time
period set forth, Tenant does hereby make, constitute and appoint Landlord or
such Mortgagee or purchaser, as the case may be, as Tenant's attorney-in-fact and
in its name, place and stead to do so, or Landlord may treat such failure as an
event of default. The aforesaid power of attorney is given as security coupled with
an interest and is irrevocable.
30. GOVERNING LAW.
This Lease shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania.
31. SEVERASILITY.
If any provisions of this Lease shall prove to be invalid, void or illegal, it shall in no way
affect any other provision hereof and the remaining provisions shall nevertheless remain in full
force and effect
31
32. HOLDING OVER.
If Tenant shall, with the consent of Landlord, hold over after the expiration of the Term, such
tenancy shall be deemed a month-to-month tenancy, which tenancy may be terminated as
provided by applicable state law. During such tenancy, Tenant agrees to pay to Landlord the
Base Rent and Additional Rent that was last in effect for the Premises prior to expiration of the
Tenn, and to be bound by all the terms and conditions herein. If Landlord has not consented to
such hold over by the Tenant, such tenancy may be terminated as above provided, and until
Tenant has vacated the Premises, it agrees to pay to Landlord Base Rent equal to the one and
one-half times the Base Rent last in effect for the Premises prior to expiration of the Term, plus
Additional Rent as was in effect prior to expiration of the Term.
33. NOTICES.
All notices and statements required or permitted under this Lease shall be in writing, and
either (a) delivered in person, (b) sent by United States Registered or Certified Mail with postage
prepaid or (c) sent by Federal Express or other recognized overnight courier service with postage
prepaid, and in any event addressed as follows:
As to Landlord: Shadow Oak Associates
c/o Integrated Properties
6570 Carlisle Pike
Mechanicsburg, PA 17055
with a copy to: Jack F. Hurley, Jr., Esquire
Rhoads & Sinon
Dauphin Bank Building
12" Floor
One South Market Square
Harrisburg, PA 17108-1146
As to Tenant: Attention: Stephen J. Hanzhk, President
Lehigh Valley Restaurant Group, Inc.
6802A Hamilton Boulevard
Trexlertown, PA 18087
with a copy to: Jeffrey D. Lobach, Esquire
Barley, Snyder, Senft & Cohen
100 East Market Street
York, PA 17401
Either party may at any time, in the manner set forth for giving notices to the other, designate a
different address to which notices to it shall be sent.
32
34. BROKERS.
Landlord and Tenant represent and warrant to each other that neither has dealt with any
broker, firm, company or person in connection with the negotiation for or the obtaining of this
Lease (other than Stonerock and Company and Bennett Williams Realty, whose commissions
shall be paid by Landlord under the terms of a separate agreement), and each parry shall
indemnify, defend and hold the other harmless from and against any claim by any person
claiming a commission or other form of compensation by virtue of having dealt with such party
with regard to this Lease, and any attorneys fees or other expenses incurred by such other party
in connection therewith.
35. TEMPORARY SIGNS OR BANNERS. Tenant may display signs or banners
on the exterior of the Building without Landlord's approval for periods of up to 30 days in any
calendar quarter and for the first six months after Tenant opens for business at the Premises. All
signs and banners must comply with applicable Township ordinances.
36. CAPTIONS.
The titles or captions to the Sections of this Lease are for convenience of reference only, and
are not to be construed as defining, limiting or modifying the scope or intent of any of the terms
and conditions of this Lease.
37. ENTIRE AGREEMENT.
This Lease contains all covenants and agreements between Landlord and Tenant relating in
any manner to the rental, use and occupancy of the Premises and Tenant's use of the Building
and other matters set forth in this Lease. No prior agreement or understanding pertaining to the
same shall be valid or of any force or effect and the terms, covenants and conditions of this Lease
shall not be altered, modified or added to except in writing signed by Landlord and Tenant.
38. LEASEHOLD MORTGAGE.
a. Tenant shall have the right to grant a mortgage of its leasehold interest
in the Premises to secure credit facilities extended to or debts incurred by Tenant
("Qualified Leasehold Mortgage"). A Qualified Leasehold Mortgage may be
granted to and held by a state or federally chartered bank, savings and loan, credit
union, to an insurance company, other financial institution, one or more
individuals, firms or corporations or any other party. The mortgagee under the
Qualified Leasehold Mortgage or any other entity acquiring an interest in the
Lease by foreclosure shall be subject to all of the rights and obligations of the
Tenant as set forth in this Lease, including without limitation any restrictions on
use of the Premises.
33
a. In connection with any such Qualified Leasehold Mortgage or other
credit accommodation obtained by Tenant, landlord shall fully cooperate with
Tenant and the entity providing the secured obligation and shall execute such
estoppel certificates, landlords' waivers and other instruments as may be
reasonably requested by Tenant in connection with such credit facility or lien or
security interest granted by Tenant in connection therewith.
39. TAX DEDUCTIONS.
It is the intention of the parties that Tenant shall be entitled to all tax deductions
applicable to the Building and any other improvements to the Premises installed by Tenant, to
the extent provided by law.
40. ENVIRONMENTAL REPORT.
Tenant shall have the right to obtain an environmental inspection report on the Premises
and surrounding property from a reputable environmental consulting firm selected by Tenant (the
"Consultant"). Tenant shall obtain the environmental inspection report within thirty (30) days
after the date hereof. If the Consultant's report is unsatisfactory to Tenant because it indicates a
reasonable basis to believe Hazardous Substances are present (or there is a threatened release of
such Hazardous Substances) on the Premises or anywhere within a proximity thereto which
would give Tenant a reasonable basis to believe such Hazardous Substances may spread to the
Premises and would require remediation, the Tenant shall notify Landlord within ten (10) days of
receipt of such report and Landlord shall have thirty (30) days after receipt of such notice within
which to advise Tenant as to whether Landlord will submit a proposal to Tenant of a plan to
clean-up or remediate the Hazardous Substances at Landlord's sole expense, and if Landlord will
submit such a plan, a copy thereof. If the Landlord's response is not acceptable to Tenant based
on the recommendation of Tenant's environmental consultant, or if the time period required to
complete the clean-up or remediation is unacceptable to Tenant, Tenant may terminate this Lease
and recover any prepaid rent by giving Landlord written notice thereof within ten (10) days after
Tenant's receipt of Landlord's response. Tenant shall have no obligation to commence
construction of the Building or pay any rent unless and until any clean-up or remediation agreed
to by Landlord is completed. In the absence of Tenant's delivery of the Consultant's report
within thirty (30) days of the date of this Lease, or in the absence of Tenant's notice of
termination within ten (10) days after receipt of Landlord's response to such report, Tenant shall
be deemed to have approved the environmental condition of the Premises and the provisions of
this Section 40 shall be of no further force and effect.
34
41. MEMORANDUM OF LEASE.
Landlord and Tenant shall execute with this Lease the Memorandum of Lease attached
hereto as Exhibit "E" and the same may be recorded by Tenant in the office of the Recorder of
Deeds of the County in which the Center is located.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed the day
and year first above written, intending to. be legally bound hereby.
Attest:
(Assistant) Secretary
LEHIGH VALLEY RESTAURANT
)GR UP, INC.
BYJ anzlik, P ident
Attest:
SHADOW OAKS ASSOCIATES
By: Shadow Oaks, Inc.
By:
Name: j y ?.
Title: Est t
By: Jonathan Hogg, Inc.
:
BYE ?? e?
ame: rs Y-5
?- de<
Title:
?? ?GGln?
35
EXHIBIT A
DESCRIPTION OF PREMISES
The premises is fully described in the drawings attached hereto and marked
Exhibit A. The following is a brief description of what is shown in the attached
drawings.
The exterior shell of Red Robin should consist of the color scheme shown on the
unnumbered color drawing. The materials and colors to be used are called out on
drawing A3.0, with the description on drawing A3.1. Drawing AM also calls out the
front and side elevations, sign size and locations. The patio concrete will be poured and
finished, while the interior will be turned over with modified 2B crushed stone with a
depth of4 inches.
The rear elevation shows a trash area surrounded by a mix of chain link and block
walls. The placement of the 1500-gallon underground grease trap is shown, as are
security lights and protection bollards. Entry to the trash area will come from the double
gates or the 2 independent gates. The power transformer is located against the back wall,
away from the entrance door. All of the specifications are shown on drawing SP. Also
shown on drawing SP is an entrance( exit hallway 35 feet 9 inches long and 6 feet wide,
to contain a roof batch and access ramp with a 1:12 ratio. The front entrance will contain
two sets of doors, the interior to meet each other and swing out, while the exterior set will
be on an angle with a glass point separating them
Drawing A2.3 shows the roof slope and location of all roof and overflow drains.
The drawing also shows placement of hood units, rooftop air conditioners, make up air
unit, and refrigeration rack to be curbed and mounted by landlord, but provided by the
tenant.
All structural aspects of the shell and roof line are shown in drawings A4.2- MA
These include the placement of support columns in the adjacent tenant space.
„W
aecnoaarmrr FRANCHISE SALES REPORT 303.846.6087
This report not be f good With your royalty payment by Red Robin Inrl wlihtnl8 dip after
period-end dates. Payhrants received attar tha€tlme are sutllect to an interest charge.
846d to- Red Robin htt a8onel
rt ,, 8ftrtea 110
?cdC?! 11i
Mini Acco,unts Receivable
STORE NAME: SILVER SPRING
GROSS SALES ....... .......... ...........................................
ENDING:
FRANCHISEE: LVRQ- INC.
ADDITIONS:
................... .
MERCANTILE ....................................................................",I
AMUSEMENTS .....................................................................
TELEPHONE .................................................................
MIac: ...........................................................
DEDUCTIONS:
EMPLOYEE MEAL: (Includes trelaing bonus)
GUEST COMPLAIN ........................................
MGR MEALS .." ....................................
DISC/PROMOS ........................................
THEFTS/WALKOUT ........................................
COMPLIMENTARY GIFT CERTIFICATES
ADJUSTED GROSS SALES
ROYALTY PERCENT
4DVERTISING & MARKETING FUND PERCENT
:ARP. ADVERTISING CONTRIBUTION PERCENT
20YALTY DUE AND ENCLOSED
WVERTISING & MARKETING FUND
:ORP. ADVERTISING CONTRIBUTION
certify that the above data Is correct, was prepared in conformance with the terms of my
renchles agreement, and agrees with supporting records retained by me for your review.
IY: DATE ___
M
Cynthia L. SWnl
Corporate Accountant
SEPARATE CHECKS FOR EACH G/L ACCOUNT, PLEASE.
kDV & MKTG FUND G/L 0.0742
:ORP ADV CONTRIB GIL 0.8740
LOYALTY GIL A-7030
IUE DATE: 01/16/00
01
EXEIIBiT °°C"
TURNOVER NOTICE
Stephen J. Hanzlik, President
Lehigh Valley Restaurant Group, Inc.
6802 Hamilton Boulevard
Trexlertown, PA 18087
Re: Turnover Notice
Dear Mr. Hanzlik:
Please let this letter confirm, in accordance with the provisions of a certain Agreement of Lease
dated , 2000, between Shadow Oak Associates ("Landlord") and Lehigh
Valley Restaurant Group, Inc. ("Tenant") that (i) all work to be performed by the Landlord with
respect to the Building Shell (as defined in said Lease), or required for issuance of a building
permit for fit-up by Tenant of the Building (as defined in said Lease) or to facilitate the Tenant's
Work (as defined in said Lease) will be completed on or before
and (ii) that the completed Building Shell will be turned over to Tenant on or before that date.
Very truly yours,
SHADOW OAKS ASSOCIATES
By:
Authorized Signatory
EXHIBIT "D"
SUBORDINATION. ATTORNMENT AND NONDISTURBANCE AGREEMENT
THIS AGREEMENT, made as of the _ day of , 2000, by and between
, a corporation having an office at
("Lender"), and Lehigh Valley Restaurant Group, Inc., a Pennsylvania
corporation having an office at 6802 Hamilton Boulevard, Trexlertown, Pennsylvania 18087 (the
"Tenant").
WITNESSETH:
WHEREAS, the Lender has made a loan (together with any present or future amendments
or increases thereto, the Loan") to Shadow Oak Associates ("Landlord") evidenced by a
Promissory Note of Landlord (together with any present or future amendments or increases
thereto, the "Note") secured by a mortgage from the Landlord, as mortgagor, to Lender, as
mortgagee (said mortgage being hereafter referred to as the "Mortgage") and recorded at Book,
Page in the office of the Recorder of Deeds of Cumberland County, covering all of the
Landlord's right, title and interest in the land, buildings, improvements and other items of
property described therein, located in Cumberland County, Pennsylvania and more particularly
described in Exhibit A annexed hereto and made a part hereof (said land, buildings,
improvements and such other property being hereafter collectively referred to as the "Mortgaged
Premises"), and further secured by an Assignment of Rents and other Interests (together with any
present or future amendments or increases thereto, the "Assignment of Rents"), recorded in the
office of the Recorder of Deeds of Cumberland County; and
WHEREAS, the Landlord and the Tenant entered into a lease dated as of
, 2000 (said lease, as the same may be amended, renewed, modified,
consolidated, replaced or extended being hereafter referred to as the "Lease"), covering a portion
of the Mortgaged Premises (the "Leased Premises"); and
WHEREAS, the Assignment of Rents assigns to Lender all of Landlord's right, title and
interest in and to the Lease and any other present or future lease of all or any part of the
Mortgaged Premises: and
WHEREAS, the Lease will benefit the Lender by enhancing the value of the Mortgaged
Premises; and
WHEREAS, the Tenant, as a condition to entering into the Lease, has required that the
this Agreement be executed by the Lender.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein and for other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, Tenant and Lender, intending to be legally bound
hereby, covenant and agree as follows:
1. The Lease shall at all times be subject and subordinate in each and every respect to the
Mortgage (and all provisions thereof) with the same force and effect as if the Mortgage had been
executed and delivered prior to the execution and delivery of the Lease and without regard to the
order or priority of recording of the Mortgage and the Lease or any memorandum of the Lease,
subject, nevertheless, to the provisions of this Agreement.
2. If the interest of the Landlord under the Lease shall be transferred by reason of a
foreclosure action or other proceedings for enforcement of the Mortgage or pursuant to a transfer
in lieu of foreclosure, the Tenant shall be bound to and shall attorn to the person acquiring the
interests of the Landlord as a result of any such action or proceeding and such person's
successors and assigns (any of the foregoing being hereafter referred to as the "Successor"), upon
the Successor succeeding to the interest of the Landlord in and to the Leased Premises.
3. If the interest of the Landlord under the Lease shall be transferred by reason of
foreclosure or other proceedings for enforcement of the Mortgage or pursuant to a transfer in lieu
of foreclosure then, except as provided in this Agreement, the Successor shall be bound to the
Tenant under all of the terms, covenants and conditions of the Lease for the balance of the term
thereof remaining, with the same force and effect as if the Successor were the Landlord (but
subject to Section 4 below).
4. The Successor shall not and shall not be deemed to (a) adopt or in any other manner be
responsible or liable for any representations and warranties made by the Landlord in the Lease,
(b) be liable for any act, omission or default of Landlord or any prior landlord occurring prior to
the date the Successor acquires an interest in the Mortgaged Premises, (c) be liable to Tenant in
any event for any matter relating to the operation, maintenance or condition of the Mortgaged
Premises or Leased Premises prior to the date Successor acquires title to the Leased Premises.
5. If Tenant is not in default hereunder or under the terms of the Lease, the Tenant will
not be joined as a parry defendant for the purpose of terminating the Lease in any foreclosure
action or proceeding which may be instituted or taken by the Lender, nor will the Tenant be
evicted from the Leased Premises, nor will the Tenant's leasehold estate under the Lease be
terminated or disturbed, nor will any of the Tenant's right under the Lease be affected in any way
by reason of any default under the Mortgage.
6. This Agreement may not be modified except by an agreement in writing signed by the
parties hereto or their respective successors in interest. This Agreement shall inure to the benefit
of and be binding upon the parties hereto, their respective successors and assigns.
7. All notices, demands or requests made pursuant to, under or by virtue of this
Agreement must be in writing and mailed to the parry to whom the notice, demand or request is
being made by certified or registered mail, return receipt requested, at its address set forth above.
Any party may change the place that notices and demands are to be sent by written notice
delivered in accordance with this Agreement.
8. This Agreement is fully integrated and not in need of parol evidence in order to reflect
the intentions of the parties hereto. The parties hereto intend the literal words of this Agreement
to govern the subject matter hereof and all prior negotiations, drafts and other extrinsic
communications shall have no significance or evidentiary effect. This Agreement shall be the
whole and only agreement between the parties hereto with regard to the subordination of the
Lease and the leasehold interest of Tenant thereunder to the lien or charge of the Mortgage in
favor of Lender, and shall supersede and control any prior agreements as to such, or any
subordination, including, but not limited to, those provisions, if any, contained in the Lease
which provide for the subordination of the Lease and the leasehold interest of tenant thereunder
to a deed or deeds of trust or to a mortgage or mortgages to be thereafter executed. In the event
any one or more of the provisions of this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein. This Agreement
shall be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
9. This Agreement shall continue in effect until all sums due by Landlord to Lender under
the Note, the Mortgage and the Assignment of Rents have been paid and satisfied in full.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly
executed as of the day and year first above written.
Lender:
Attest:
[CORPORATE SEAL]
By:
LEHIGH VALLEY RESTAURANT
GROUP. INC.
Attest:
By:
[CORPORATE SEAL] Stephen J. Hanzlik, President
The undersigned consents to the foregoing:
SHADOW OAKS ASSOCIATES
By: Shadow Oaks, Inc.
Attest:
By:
[CORPORATE SEAL] Name:
Title:
By: Jonathan Hogg, Inc.
Attest:
By:
[CORPORATE SEAL] Name:
Title:
Commonwealth of Pennsylvania
County of York
ss.
On this day of , , before me, the
undersigned officer, personally appeared Stephen J. Hanzlik, known to me (or satisfactorily
proven) to be the person whose name is subscribed as President of Lehigh Valley Restaurant
Group, Inc., and that he as such officer being authorized to do so, executed the within
instrument for the purposes therein contained by signing the name of the corporation by
himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
Commonwealth of Pennsylvania
County of York
ss.
On this day of 2000, before me, the undersigned
officer, personally appeared , known to me (or satisfactorily
proven) to be the person whose name is subscribed as of
, and that he as such officer being authorized to do so, executed
the within instrument for the purposes therein contained by signing the name of the corporation
by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
Commonwealth of Pennsylvania
County of York
ss.
On this day of before me, the undersigned
officer, personally appeared , known to me (or
satisfactorily proven) to be the person whose name is subscribed as
of Shadow Oaks, Inc. of Shadow Oak
Associates, and that he as such , being authorized to do so,
executed the within instrument for the purposes therein contained by signing the name of the
by himself as such
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
Commonwealth of Pennsylvania
County of York
ss.
On this day of
officer, personally appeared
satisfactorily proven) to be the person whose
of Jonathan Hogg, Inc.
Associates, and that he as such
executed the within instrument for the purposes therein contt
by himself as such
before me, the undersigned
, known to me (or
name is subscribed as
of Shadow Oak
being authorized to do so,
tined by signing the name of the
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
924238
Notary Public
.H
923179
ESMIT 64EPO
MEMORANDUM OF LEASE
This writing is executed by the parties hereto as a memorandum for the purpose of
recording, in accordance with the provisions of the Act of June 2, 1959, P.L. 454, 21 Pa. C.S.A.
§404 et. seq.
It is hereby noted that Shadow Oaks Associates, a Pennsylvania joint venture with a
mailing address of c/o Integrated Properties, 6570 Carlisle Pike, Mechanicsburg, Pennsylvania
17055 (hereinafter "Lessor") has leased to Lehigh Valley Restaurant Group, Inc., a Pennsylvania
corporation (hereinafter "Lessee") certain real estate identified as of the Cumberland
Marketplace Shopping Center, situate in the Township of Silver Spring, County of Cumberland and
Commonwealth of Pennsylvania ("Premises") more fully described on Exhibit "A" attached hereto.
The term of the said lease shall be for fifteen (15) years, commencing after completion of
the improvements to be constructed on the premises.
Lessee has the right to renew the Lease for two (2) consecutive terms of five (5) years
each and for a term of four (4) years.
WITNESS the due execution hereof this
Attest:
(Assistant) Secretary
day of
12000.
LEHIGH VALLEY RESTAURANT
GROUP, INC.
By:
Stephen J. Hanzlik, President
g
Attest:
SHADOW OAKS ASSOCIATES
By: Shadow Oaks, Inc.
By:
Name:
Title:
By: Jonathan Hogg, Inc.
By:
Name:
Title:
Commonwealth of Pennsylvania
County of
ss.
On this day of , 2000, before me, the undersigned officer,
personally appeared Stephen J. Hanzlik, known to me (or satisfactorily proven) to be the person
whose name is subscribed as President of Lehigh Valley Restaurant Group, Inc., and that he as
such officer being authorized to do so, executed the within instrument for the purposes therein
contained by signing the name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
Commonwealth of Pennsylvania
County of
ss.
On this day of before me, the undersigned
officer, personally appeared , known to me (or
satisfactorily proven) to be the person whose name is subscribed as
of Shadow Oaks, Inc. of Shadow Oak
Associates, and that he as such , being authorized to do so,
executed the within instrument for the purposes therein contained by signing the name of the
by himself as such
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
Commonwealth of Pennsylvania
County of
ss.
On this day of
officer, personally appeared
satisfactorily proven) to be the person whose
of Jonathan Hogg, Inc.
Associates, and that he as such
executed the within instrument for the purposes therein cont;
by himself as such
before me, the undersigned
, known to me (or
name is subscribed as
of Shadow Oak
being authorized to do so,
tined by signing the name of the
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
N
w o J
r ?
e
SHERIFF'S RETURN - REGULAR
CASE NO: 2004-02264 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LEHIGH VALLEY RESTAURANT GROUP
VS
SHADOW OAKS INC ET AL
BRIAN BARRICK
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
SHADOW OAKS INC the
DEFENDANT , at 1443:00 HOURS, on the 27th day of May , 2004
at 6570 CARLISLE PIKE
MECHANICSBURG, PA 17055
by handing to
JOE SNYDER, PRESIDENT, ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 1.00 ?iry
Service 6.21
//
Affidavit .00
Surcharge 10.00 R. Thomas Kline
.00
34.21 06/01/2004
BARLEY SNYDER n?
Sworn and Subscribed to before By:
me this /et day of Deputy Sheriff
?_ 211U i A.D.
< Q. 145.
rothonotary
SHERIFF'S RETURN - REGULAR
CASE NO: 2004-02264 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LEHIGH VALLEY RESTAURANT GROUP
VS
SHADOW OAKS INC ET AL
BRIAN BARRICK
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
HOGG JONATHAN INC the
DEFENDANT , at 1443:00 HOURS, on the 27th day of May 2004
at 6570 CARLISLE PIKE
MECHANICSBURG, PA 17055 by handing to
JOE SNYDER, PRESIDENT, ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit 100
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this 7 ,_ day of
A.D.
`6r tho ottary
So Answers:
R. Thomas Kline !!
06/01/2004
BARLEY SNYDER
By. A411
J 1gi
Deputy She
SHERIFF'S RETURN - REGULAR
CASE NO: 2004-02264 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LEHIGH VALLEY RESTAURANT GROUP
VS
SHADOW OAKS INC ET AL
BRIAN BARRICK
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
SHADOW OAKS INC & JONATHAN
DEFENDANT , at 1443:00
at 6570 CARLISLE PIKE
MECHANICSBURG, PA 17055
JOE SNYDER, PRESIDENT,
a true and attested copy of
HOGG T/A SHADOW OAKS ASSOCIATE the
HOURS, on the 27th day of May 2004
by handing to
ADULT IN CHARGE
COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this )o day of
C?lt ?w atJV Y A. D.
?
p,rothonotary
So Answers:
R. Thomas Kline
06/01/2004
BARLEY SNYDER
By:
IAQ //,-
Deputy Sherif
Dean F. Piermattei, Esquire
Attorney No. 53847
RHOADS& S/NONLLP
One South Market Square, 12th Floor
Harrisburg, PA 17101
Phone: 717,233,5731
Fax: 717.237.6790
Attomeys for Defendants
LEHIGH VALLEY RES
GROUP, INC.,
Plaintiff
V.
SHADOW OAKS, INC., JONATHAN
HOGG, INC.,
and
SHADOW OAKS, INC. AND
JONATHAN HOGG, INC. t/a
SHADOW OAKS ASSOCIATES,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-2264 CIVIL TERM
NOTICE TO PLEAD
TO: Lehigh Valley Restaurant Group, Inc.
c/o Paul W. Minnich, Esquire
Barley Snyder
100 East Market Street
P.O. Box 15012
York, PA 17405-7012
You are hereby notified to file a written response to the enclosed New Matter and
Counterclaim, within twenty (20) days from service hereof or a judgment will be entered against
you.
Respectfully submitted,
RHOADS & SINON LLP
By.
Dean F. Piermattei, Esquire
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendants
521912.2
LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
V.
SHADOW OAKS, INC., JONATHAN
HOGG, INC.,
and
SHADOW OAKS, INC. AND
JONATHAN HOGG, INC. t/a
SHADOW OAKS ASSOCIATES,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-2264 CIVIL TERM
NOW COMES, Shadow Oaks, Inc. ("Shadow Oaks"), Jonathan Hogg, Inc. ("Jonathan
Hogg") and Shadow Oaks, Inc. and Jonathan Hogg, Inc. t/a Shadow Oaks Associates ("Shadow
Oaks Associates") through its counsel, Rhoads & Sinon LL13 and files the following Answer,
New Matter and Counterclaim:
1. Denied. After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments in this paragraph and the
same are denied and proof thereof is demanded at trial.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Denied. The Lease is a document which speaks for itself and any attempt to
misconstrue or limit the same is specifically denied.
7. Admitted.
8. Denied. Any implications that the Plaintiff somehow conveyed special visibility
needs relating to the Red Robin Restaurant is specifically denied. By way of further answer, the
Lease, an integrated document, does not impose any visibility restrictions on the Defendants.
Furthermore, there exists excellent visibility of the Red Robin Restaurant from the Carlisle Pike
and Route 114.
9. Denied. The allegations in this paragraph are denied for the reasons set forth in
paragraph 8 above. By way of further answer, it is admitted that the Defendants were aware that
a zoning variance to enlarge the sign at the restaurant was obtained.
10. Denied. It is specifically denied that Defendants were aware that Plaintiff had
"serious concerns" about the number of parking spaces available for its patrons. By way of
father answer, there has always been a sufficient number of parking spaces to serve the Red
Robin Restaurant and the other business located in the Cumberland Market Place Shopping
Center ("Center"). In fact, the parking available at the Center by far exceeds the parking
availability requirements established by the Township.
11. Denied. The Lease is a document which speaks for itself and any attempt to
misconstrue or limit the terms of the Lease are specifically denied.
12. Denied. The Lease is a document which speaks for itself and any attempt to
misconstrue or limit the terms of the Lease are specifically denied.
13. Denied. The Lease is a document which speaks for itself and any attempt to
misconstrue or limit the terms of the Lease are specifically denied.
14. Denied. The Lease is a document which speaks for itself and any attempt to
misconstrue or limit the terms of the Lease are specifically denied.
15. Admitted in part. It is admitted that Defendants permitted Giant Food Stores to
erect a gas station service island at the Center. The remainder of the allegations in this paragraph
are denied.
16. Admitted.
17. Denied. It is specifically denied that the gas station service island has impeded
the visibility of Plaintiff's restaurant from both the Carlisle Pike and Route 114.
18. Denied. It is specifically denied that the gas station service island has reduced the
number of parking spaces available for patrons of Plaintiff's restaurant. Rather, at all relevant
times there has existed a surplus of parking spaces to accommodate Plaintiff's patrons.
19. This paragraph contains conclusions of law which do not require a response. To
the extent this paragraph contains allegations of fact, the saune are specifically denied for the
reasons set forth above.
20. This paragraph is a conclusion of law which does not require a response. To the
extent that this paragraph contains allegations of fact, the same are specifically denied. By way
of further answer, Plaintiff has failed to adhere to its contractual obligations for the reasons set
forth below and is actually in breach of the Lease.
21. This paragraph contains conclusion of law which do not require a response. To
the extent that this paragraph contains factual averments, the same are specifically denied since
after reasonable investigation, the Defendants are without sufficient information or knowledge
to form a belief as to the truth of these averments and accordingly specific proof is demanded at
trial.
22. This paragraph contains conclusion of law which do not require a response. To
the extent that this paragraph contains factual averments, the same are specifically denied since
after reasonable investigation, the Defendants are without sufficient information or knowledge
to form a belief as to the truth of these averments and accordingly, specific proof is demanded at
trial.
23. This paragraph contains conclusion of law which do not require a response. To
the extent that this paragraph contains factual averments, the same are specifically denied since
after reasonable investigation, the Defendants are without sufficient information or knowledge
to form a belief as to the truth of these averments and accordingly, specific proof is demanded at
trial.
WHEREFORE, Shadow Oaks, Jonathan Hogg and. Shadow Oaks Associates demand
judgment in their favor and against Plaintiff, together with interest and costs as allows by law.
NEW MATTER
24. At all relevant times, Defendants acts have been consistent with the terms of the
Lease Agreement, including but not limited to the installation. of a gas station service island.
25. The Defendants have fulfilled all of their obligations owed to the Plaintiff under
the terms of the Lease.
26. The Plaintiff at all times had sufficient parking in the Center to accommodate all
of its patrons.
27. The Lease, as an integrated document, places no visibility restrictions on the
landlord, and precludes Plaintiff from interjecting additional terms to the Lease beyond those set
forth in the Lease itself.
28. The Plaintiff has breached the Lease by failing to; (a) report its adjusted gross
sales to the Landlord (14b); (b) pay a "Percentage Rent" as required by the Lease (14b); and, (c)
allow unrestricted use of certain parking spaces currently reserved for Red Robin customers only
(¶1b).
29. The Plaintiffs claims are barred by the doctrine of estoppel.
30. While it is specifically denied that Plaintiff suffered any damages, to the extent
that it is determined that the Plaintiff did experience a decrease; in revenue, it is solely as a result
of Plaintiff s own actions or lack of actions, or the actions or lack of actions of third parties for
which Defendants are not responsible.
31. Plaintiffs claims are barred by the doctrine of statute of frauds.
WHEREFORE, Shadow Oaks, Jonathan Hogg and Shadow Oaks Associates demand
judgment in their favor and against Plaintiff, together with interest and costs as allows by law.
COUNTI
COUNTERCLAIM
DECLARATORY JUDGMENT ACTION
32. Paragraphs 1 through 31 above are incorporate herein by reference.
33. Paragraph 1(b) of the Lease, specifically grants the tenant a "nonexclusive
license" to use the parking spaces in the shopping center complex ("Center") at issue.
34. In violation of the Lease, Lehigh Valley Restaurant Group, hic. ("Lehigh Valley")
has restricted the use of certain parking spaces adjacent to :it's restaurant to use by its patrons
who seek to obtain take-out orders.
35. In restricting the use of certain parking spaces, Lehigh Valley has and is depriving
the other tenants, their employees, agents, contractors and customers from the right to use said
parking spaces contrary to the provisions of the Lease.
36. Pursuant to Paragraph 4(b) of the Lease, Lehigh Valley is required to pay
"Percentage Rent" which is a percentage of the tenant's annual adjusted gross sales which
exceed a certain dollar amount.
37. As part of the calculation for the Percentage Rent, the Lease requires Lehigh
Valley to report to Shadow Oaks, Jonathan Hogg and Shadow Oaks Associates (herein
collectively referred to as "Landlord") on an annual basis, Lehigh Valley's adjusted gross sales.
Said reports must be certified by an officer of Lehigh Valley and must be adjusted according to
the reporting methods used by Lehigh Valley when reporting such information to its Franchisor.
38. To date, Lehigh Valley has failed to pay any Percentage Rent and has failed to
adhere to the reporting requirements to allow calculation of smy Percentage Rent owed to the
Landlord.
39. Pursuant to the Lease, the Landlord is entitled to examine or audit "all books and
records pertaining to Tenant's Adjusted Gross Sales." (Lease 14(b)(1)).
40. Pursuant to the terms of the Lease, Lehigh Valley is in default under the Lease
because it has violated the nonexclusive license agreement with respect to parking spaces, has
failed to provide the required financial information regarding its business operations and to the
extent required, has failed to pay Percentage Rent to the Landlord.
41. As a direct result of Lehigh Valley's breach of the Lease, the Landlord is entitled
to accelerate and declare immediately due and payable all Base Rent and Additional Rent for the
balance of the Lease term and is also entitled to terminate the Lease for the balance of the
unexpired term.
WHEREFORE, Shadow Oaks, Jonathan Hogg and Shadow Oaks Associates respectfully
requests this Court enter judgment declaring that: (1) Lehigh Valley has breached the Lease
Agreement; (2) the Landlord is entitled to terminate the Lease; (3) The Landlord is entitled to
recover all damages allowed pursuant to the Lease; and, (4) the Landlord is entitled to an
accounting pursuant to the Lease.
COUNT II
BREACH OF CONTRACT
42. Paragraphs 1 through 41 above are incorporate herein by reference.
43. As a direct result of Lehigh Valley's breach of the Lease Agreement, the Landlord
is entitled to payment of accelerated rent for the balance of the term of the Lease.
44. As a direct result of Lehigh Valley's breach of the Lease, the Landlord is entitled
to Percentage Rent which is believed owed to the Landlord, together with the costs associated
with compelling and conducting an audit, as well as interest at the rate of 12%.
45. Pursuant to the Lease, the Landlord is entitled to be indemnified for its costs,
which would include attorney fees, suffered by the Landlord as a result of any willful failure by
Lehigh Valley to perform the terms and conditions as set forth in the Lease. Accordingly, the
Landlord is entitled to recover its costs associated with pursuing its Declaratory Judgment Action
and Breach of Contract Action.
WHEREFORE, Shadow Oaks, Jonathan Hogg and Shadow Oaks Associates respectfully
requests this Court enter judgment in its favor and against Lehigh Valley in an amount in excess
of $25,000.00 together with interest, costs, including reasonable attorneys fees as allowed by the
Lease and law.
Respectfully submitted,
RHOADS & SINON LLP
By: - 1. -
1 PIP I -L
Dean F. Piermattei, Esquire
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendants
CERTIFICATE OF SERVICE
I hereby certify that on this 18`h day of June, 2004, a true and correct copy of the
foregoing Answer, New Matter and Counterclaim was served by means of United States mail,
first class, postage prepaid, upon the following:
Paul W. Minnich, Esquire
Barley Snyder
100 East Market Street
P.O. Box 15012
York, PA 17405-7012
Teresa Paulhamus
!CATION
I, Dean F. Piermattei Esquire, depose and state that I am the attorney for the Defendants,
that I am acquainted with the facts set forth in the foregoing and verify that the statements made
in the aforementioned Answer, New Matter and Counterclaim to Plaintiffs Complaint are true
and correct to the best of my knowledge. I understand than false statements herein are made
subject to the penalties of 18 Pa. C.S. § 4904, relating to unworn falsification to authorities.
Dean F. Piermattei, Esquire
387984.1
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LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
Vs.
SHADOW OAKS, INC, JONATHAN
HOGG, INC.,
and
SHADOW OAKS, INC. AND
JONATHAN HOGG, INC., t/a
SHADOW OAKS ASSOCIATES,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-2264 CIVIL TERM
PRAECIPE TO SUBSTITUTE VERIFICATION
TO: THE PROTHONOTARY
Kindly substitute the attached Verification for the Verification attached to
Defendants' Answer, New Matter and Counterclaim, which was filed on June 21, 2004.
RHOADS &
One South 'Market Square
Twelfth Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendants
CERTIFICATE OF SERVICE,
I hereby certify that on this 240s day of June, 2004, a true and correct copy of the
foregoing "Praecipe to Substitute Verification" was served by means of United States mail, first
class, postage prepaid, upon the following:
Paul W. Minnich, Esquire
Barley Snyder
100 East Market Street
P.O. Box 15012
York, PA 17405-7012
Teresa Paulhamus
VERIFICATION
Joseph D. Snyder deposes and says, subject to the penalties of 18 Pa.C.S.A. §4904
relating to unworn falsification to authorities, that he is the President of Shadow Oaks, Inc. and
Jonathan Hogg, Inc., that he makes this verification by their authority and that the that the facts
set forth in the foregoing Answer, New Matter and Counterclaim are true and correct to the best
of his knowledge, information and belief.
? . ?.--
Date: L-L
Joseph D. Sn er
President, Shadow Oaks, Inc.
President, Jonathan Hogg, Inc.
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
V.
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
To: Defendants/Counterclaim Plaintiffs
No. ??p Lam/ C You are hereby notified to plead to the within New Matter within twenty (20) days from
service hereof or judgment maybe entered against you.
BARLEY SNYDER
01
By:
Pau 2(4inrftb
Attorneys for Plaintiff/Counterclaim Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
No. 04-2264 Civil Term
V.
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
REPLY TO NEW MATTER AND
ANSWER TO COUNTERCLAIM WITH NEW MATTER
Lehigh Valley Restaurant Group, Inc., by its counsel, Barley Snyder, files the following
Reply to the New Matter and Answer with New Matter to the Counterclaim filed by Defendants,
Shadow Oaks, Inc., Jonathan Hogg, Inc., and Shadow Oaks, Inc., and Jonathan Hogg, Inc.,
trading as Shadow Oaks Associates:
REPLY TO NEW MATTER
24. Denied. The averments of paragraph 24 constitute conclusions of law to which no
response is required. To the extent a response may be required„ it is denied that Defendants' acts
have been consistent with the terms of the Lease for the reasons set forth in Plaintiff's
Complaint.
25. Denied. The averments of paragraph 25 constitute conclusions of law to which no
response is required. To the extent a response may be required, it is denied that Defendants have
fulfilled all of their obligations pursuant of the Lease for the reasons set forth in Plaintiffs
Complaint.
26. Denied. The averments of paragraph 26 constitute conclusions of law to which no
response is required. To the extent a response may be required, said averments are denied for the
reasons set forth in Plaintiff's Complaint.
27. Denied. The Lease is a written document which speaks for itself. Further, the
averments of paragraph 27 are denied for the reasons set forth in Plaintiff's Complaint.
28. Denied. To the contrary, Plaintiff has fully complied with the terms of the Lease, has
reported its adjusted gross sales, has paid all sums required by the Lease, and has properly
utilized its nonexclusive license to the use of the Common Area.
29. Denied. The averments of paragraph 29 constitute conclusions of law to which no
response is required.
30. Denied. The averments of paragraph 30 constitute conclusions of law to which no
response is required.
31. Denied. The averments of paragraph 31 constitute conclusions of law to which no
response is required.
WHEREFORE, Plaintiff, Lehigh Valley Restaurant Group, Inc., demands judgment in its
favor and against Defendants.
ANSWER TO COUNTERCLAIM
Count I
Declaratory Judgment Action
32. Plaintiff incorporates by reference the factual averments of its Complaint and
paragraphs 1 through 31 above.
33. Denied as stated. The Lease is a written document which speaks for itself.
34. Denied. It is specifically denied that Plaintiff has violated the Lease in any respect.
While Plaintiff has placed signs to ensure parking is available for its patrons who have placed
take-out orders, no vehicles have been physically excluded from using any parking spaces in the
common area.
35. Denied. The averment of paragraph 35 constitutes a conclusion of law to which no
response is required. To the extent a response may be required. Plaintiff has never actively
enforced any parking restriction. Further, it is specifically denied that any tenants, their
employees, agents, contractors or customers have been deprived of parking rights and no tenant
has raised any complaint or objection to Plaintiff.
36. Denied as stated. The Lease is a written document which speaks for itself. In further
answer, Plaintiff has fully complied with its rental obligations under the Lease.
37. Denied as stated. The Lease is a written document which speaks for itself. In further
answer, Plaintiff has fully complied with its rental obligations under the Lease.
38. Denied. To the contrary, Plaintiff has reported its adjusted gross sales and no
Percentage Rent is due and owing.
39. Denied as stated. The Lease is a written document which speaks for itself.
40. Denied. The averments of paragraph 40 constitute conclusions of law to which no
response is required. To the extent a response may be required, it is specifically denied that
Plaintiff is in default under the Lease. To the contrary, Plaintiff has fully complied with all of its
obligations under the Lease.
41. Denied. The averments of paragraph 41 constitute conclusions of law to which no
response is required. To the extent a response may be required, it is specifically denied that
Plaintiff is in breach of the Lease, and to the contrary it is averred that Plaintiff has fully
complied with all of its obligations under the Lease. Moreover, prior to asserting their
counterclaim, Defendants never provided notice of an alleged default or allowed an opportunity
to cure as required by the Lease. In further answer, it is averred that Defendants are in fact in
breach of the Lease for the reasons set forth in Plaintiff's Complaint.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendants that (1)
Plaintiff has not breached the Lease; (2) that Defendants are not entitled to terminate the Lease;
(3) that Defendants are not entitled to recover any damages; and (4) that Plaintiff has provided
any accounting required by the Lease.
Count II
Breach of Contract
42. Plaintiff incorporates by reference the factual averments of its Complaint and
paragraphs 1 through 41 above.
43. Denied. The averments of paragraph 43 constitute conclusions of law to which no
response is required. To the extent a response may be required, it is specifically denied that
Plaintiff has breached the Lease, and to the contrary it is averred that Plaintiff is in full
compliance with its terms.
44. Denied. The averments of paragraph 44 constitute conclusions of law to which no
response is required. To the extent a response may be required, it is specifically denied that
Plaintiff has breached the Lease, and to the contrary it is averred that Plaintiff is in full
4
compliance with its terms. It is further denied that any Percentage Rent is due and payable to
Defendants.
45. Denied. The averments of paragraph 45 constitute conclusions of law to which no
response is required. To the extent a response may be required, it is specifically denied that
Plaintiff has breached the Lease, and to the contrary it is averred that Plaintiff is in full
compliance with its terms. Further, Plaintiff believes and therefore avers that it is Defendants
who have violated the terms of the Lease, as set forth in its Complaint.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendants.
NEW MATTER TO COUNTERCLAIM
46. Defendants failed to give any notice of default to Plaintiff or opportunity to cure as
required by the Lease.
47. Plaintiff has fully complied with the payment of rental obligations under the Lease.
48. Plaintiff has not excluded any customers of the Center from use of any parking spaces
in the Common Area.
49. Defendants have failed to establish a basis upon which attorneys fees may be
awarded.
50. Defendants have failed to establish a basis upon which it may recover its costs in
pursuing its declaratory judgment claim.
51. Defendants have failed to establish a basis upon which it may recover its costs in
pursuing its breach of contract claim.
52. Defendants' claims for breach of the Lease are barred by their acceptance of
Plaintiff's payment of its rental obligations.
53. Defendants' claims are barred by the doctrines of waiver and estoppel.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendants.
BARLEY SNYDER
By: ?
P ul W. nnich
Court I.D. 74453
100 East Market Street
P.O. Box 15012
York, PA 17405-7012
717.846.8888
Attorneys for Plaintiff'
1292186
6
VERIFICATION
I, Stephen Hanzlik, President of Lehigh Valley Restaurant Group, Inc., the within
Plaintiff , hereby verify that the facts set forth in the foregoing Reply to New Matter and Answer
to Counterclaim with New Matter are true and correct to the best of my knowledge, information
and belief. 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.
24
?y/y
Dated: tJ y?? e 91 20
Q 7
CERTIFICATE OF SERVICE
AND NOW, this 12th day of July, 2004, I, Paul W. Minnich, Esquire, hereby certify that I
have served the within Reply to New Matter and Answer to Counterclaim of New Matter by
depositing the same in the United States mail, postage prepaid, at York, Pennsylvania, addressed as
follows:
Dean F. Piermattei, Esquire
Rhodes & Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
BARLEY SNYDER
By:
P ul i Esquire
Supreme Court No. 74453
100 East Market Street
P. O. Box 15012
York, PA 17405-7012
(717)846-8888
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LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
V.
SHADOW OAKS, INC., JONATHAN
HOGG, INC.,
and
SHADOW OAKS, INC. AND
JONATHAN HOGG, INC. t/a
SHADOW OAKS ASSOCIATES,
Defendants
CIVIL ACTION - LAW
NO. 04-2264 CIVIL TERM
REPLY TO NEW MATTER 1'0 COUNTERCLAIM
NOW COMES, Shadow Oaks, Inc. ("Shadow Oaks"), Jonathan Hogg, Inc. ("Jonathan
Hogg") and Shadow Oaks, Inc. and Jonathan Hogg, Inc. t/a Shadow Oaks Associates ("Shadow
Oaks Associates") through its counsel, Rhoads & Sinon LLP and files the following Reply to
New Matter to Counterclaim:
46-52. These paragraphs contain conclusion of law and do not require a response.
To the extent that these paragraphs contain factual averments, the same are specifically denied
for the reasons set forth in Defendants' Answer, New Matter and Counterclaim.
Respectfully submitted,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
RHOADS & SINON LLP
B
De . Piermattei, Esquire
ne South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendants
Date: August 4, 2004
CERTIFICATE OF SERVICE
I hereby certify that on this 4`h day of August, 2004, a true and correct copy of the
foregoing Reply was served by means of United States mail, first class, postage prepaid, upon
the following:
Paul W. Minnich, Esquire
Barley Snyder
100 East Market Street
P.O. Box 15012
York, PA 17405-7012
Teresa Paulhamus
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
V.
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
No. 2004-02264 Civil Term
CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for docurnents and things pursuant to Rule
4009.22, Plaintiff certifies that:
(1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto
was mailed or delivered to each party at least twenty (20) days prior to the date on which the
subpoena is sought to be served,
(2) a copy of the notice of intent, including the proposed subpoena, is attached to this
certificate,
(3) no objection to the subpoena has been received, and
(4) the subpoena which will be served is identical to the subpoena which is attached to
the notice of intent to serve the subpoena.
au Wgiinmic?h?'E?s;quire
Supreme Court No. 74453
100 East Market Street
Date: q
1306684
P. O. Box 15012
York, PA 17405-7012
(717)846-8888
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
No. 2004-02264 Civil Term
V.
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
NOTICE OF INTENT TO SERVE A SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR
DISCOVERY PURSUANT TO RULE 4009.21
Plaintiff intends to serve subpoenas identical to those that are attached to this notice. You
have twenty (20) days from the date listed below in which to file of record and serve upon the
undersigned an objection to any of the subpoenas. If no objections are made, the subpoenas may
be served.
BARLEY, SNYDE;R, SENFT & COHEN, LLC
By:
G'
Paul W Minnich, Esquire
Supreme Court No. 74453
100 East Market Street
P. O. Box 15012
York, PA 17405-7012
Date: $-?? 0 (717)846-8888
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
No. 2004-02264 Civil Term
V.
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
PRAECIPE FOR WITHDRAWAL OF APPEARANCE
AND ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please withdraw the appearance of Paul W. Minnich, Esquire, of Barley Snyder LLC as
counsel of record for Plaintiff, Lehigh Valley Restaurant Group, Inc.
BARLEY SNYDER LLC
Date: July, 2006 BY
Paul W. Minnich, squire
Pa. I.D. No. 74453
100 East Market Street
P.O. Box 15012
York, PA 17405-7012
(717) 846-8888
Please enter the appearance of the undersigned as counsel for Plaintiff, Lehigh Valley
Restaurant Group, Inc.
BARLEY
Date: July _ /? , 2006
BY
James Chiaruttini
Pa. I. . No. 82060
100 ast Market Street
P.O. Box 15012
York, PA 17405-7012
(717) 846-8888
Attorneys for Plaintiff
r ?
CERTIFICATE OF SERVICE
AND NOW, this J?_ day of July, 2006, I, James E. Chiaruttini, Esquire, hereby certify
that I have served the within Praecipe for Withdrawal of Appearance and Entry of Appearance by
depositing the same in the United States mail, postage prepaid, at York, Pennsylvania, addressed as
follows:
Dean F. Piermattei, Esquire
Rhodes & Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
By:
BARLEY
James E. arulTini, Esquire
Pa. I.D. 0.82060
100 Ea Market Street
P. O. Box 15012
York, PA 17405-7012
(717)846-8888
1669559.1
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT No. 2004-02264 Civil Term
GROUP, INC.,
Plaintiff
V.
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Interrogatories to Defendants are this day being served
upon Defendant by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows:
Dean F. Piermattei, Esq.
Rhoads & Sinon LLP
One South Market Square, 12th Floor
Harrisburg, PA 17101
BARLEY
eet
P.O. Box 15012
York, PA 17405-7012
717.846.8888
Attorneys for Plaintiff
By:
James E. 'aruittim
Court LD 82060
100 Eas arket Str
Date: 7 - /1 - c/7
1984881
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
No. 2004-02264 Civil Term
V.
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Requests for Production-2nd Set to Defendants
are this day being served upon Defendant by first class mail, postage prepaid, at York,
Pennsylvania, addressed as follows:
Dean F. Piermattei, Esq.
Rhoads & Sinon LLP
One South Market Square, 12th Floor
Harrisburg, PA 17101
BARLEY
.1 1
Date: / - I / - o 1
By:
James E hiaruittini
Court 1/)D. 82060
100E t Market Street
P.O. Box 15012
York, PA 17405-7012
717.846.8888
Attorneys for Plaintiff
1984869
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
V.
No. 2004-02264 Civil Term
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
PRAECIPE FOR WITHDRAWAL AND ENTRY OF APPEARANCE
WITHDRAWAL OF APPEARANCE
TO THE PROTHONOTARY:
Please withdraw my appearance on behalf of Plaintiff, Lehigh Valley Restaurant
Group, Inc.
Date: - Z q - 0,7
STOCK AND LfADE9 - - -
James E: hiaruttini, Esquire
Court T. 82060
Susque uma Commerce Center East
221 West Philadelphia Street, Suite 600
York, PA 17401-2994
Telephone: (717) 846-9800
Fax: (717) 843-6134
!.`, IN
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter my appearance on behalf of Plaintiff, Lehigh Valley Restaurant
Group, Inc.
:BARLEY SN LLC
Date: l innich, Esquire
Court I.D. 74453
100 East Market Street
PO Box 15012
York, PA 17405-7012
Telephone: (717) 846-8888
Fax: (717) 843-8492
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
V.
No. 2004-02264 Civil Term
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
CERTIFICATE OF SERVICE
I hereby certify that I have, this date, served by First Class, United States Mail, a
copy of the foregoing Praecipe for Withdrawal of Appearance/Praecipe for Entry of
Appearance on the person indicated below:
Dean F. Piermattei, Esquire
Rhodes & Sinon, LLP
One South Market Square
PO Box 1146
Harrisburg, PA 17108-1146
Date: Ci
BARLEY SN LLC
15aul W. i Esquire
Court 1.1). 74453
100 East Market Street
PO Box 15012
York, PA 17405-7012
Telephone: (717) 846-8888
Fax: (717) 843-8492
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Lehigh Valley Restaurant
Grouo. Inc.
vs
Shadow Oaks, Inc., Jonathan Hogg, Inc., and
Shadow Oaks, Inc. and Jonathan Hogg, Inc.
t/a Shadow Oaks Associates
C'1
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Case No. 04-2264m o
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Statement of Intention to Proceed
N
To the Court:
P I a i nt i f f intends to proceed with the ab captioned matter.
Print Name Paul W. M i nn i ch?_Es u i r*i-n Name
Date: C" hi I C_' Attorney for P I a i nt i f f
Explanatory Comment
The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of
inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit
comment.
1. Rule of civil Procedure
New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the
scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously
governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is
tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting
local rules.
This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d
1 104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required
before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901."
Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The
general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable.
11 Inactive Cases
The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the
court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties.
If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of
" if a
COUCSe terminating the nlalteC with prejudice for laIIUCC t0 prOScCUiW.' if party '."vi5,lC5 iCpursue :hC ;^."...ti"'pC, 1'.:_- C- she
will file a notice of intention to proceed and the action shall continue.
a. Where the action has been terminated
If the action is terminated when a party believes that it should not have been terminated, that party may proceed
under Rule230(d) for relief from the order of termination. An example Of such an occurrence might be the termination
of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file
the notice of intention to proceed.
The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of
the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and
reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff
must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or
legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of
termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2).
B. Where the action has not been terminated
An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may
have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a
common law non pros which exits independently of termination under Rule 230.2.
-n
=i
Dean F. Pieimattei, Fsquire
Attorney No. 53847
Rm,ws & S/;vON LLP
One South Market Square, 12th Floor
Harrisburg, PA 17101
Phone: 717.233.5731
Fax: 717.238-8622
Email: dpiennattei(c+,rhoads-sinon.com
Attorneys for Defendants
LEHIGH VALLEY RESTAURANT
GROUP, INC.,
Plaintiff
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IN THE COURT OF COMP P L 9 A " ?r-n- M
CUMBERLAND COUNT r- A
CIVIL ACTION - LAW
v
SHADOW OAKS, INC.,
JONATHAN HOGG, INC., and
SHADOW OAKS, INC., and
JONATHAN HOGG, INC.,
t/a SHADOW OAKS ASSOCIATES
Defendants
No. 2004-02264 Civil Term
DEFENDANT'S STATEMENT OF INTENTION TO PROCEED
TO THE COURT:
Defendant Shadow Oaks, Inc. intends to proceed with the above captioned matter.
Respectfully submitted,
By:
RHOADS &XINON LLP
vF. Pie attei, Esquire
So Market Square
P. O,4ox 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendant Shadow Oaks, Inc.
L.
6722165:1
CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of September, 2010, a true and correct copy of the
foregoing document was served by means of United States mail, first class, postage prepaid,
upon the following:
Paul W. Minnich, Esquire
Barley Snyder, LLC
100 East Market Street
P.O. Box 15012
York, PA 17405-7012
-2-
Lehigh Valley Restaurant Group, Inc.
vs Case No. 04-2264 C i v i l Term
Shadow Oaks, Inc. , Jonathan Hogg, Inc.
and Shadow Oaks, Inc. , and Jonathan Hogg,
Inc. , t/a Shadow Oaks Associates
a --1\
5
Statement of Intention to Proceed rn�-
To the Court: Wiz' -4t
-o G
Lehigh Valley Restaurant Group. Inc. intends to proceed with th- :boy. ,'.ptionedr.
317 Z. 01
Print Name Paul W. Minn i ch Sign Name -<
Date: / Attorney f o r P l a i n t i f f
Explanatory Comment
The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of
inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit
comment.
I.Rule of civil Procedure
New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the
scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously
governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is
tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting
local rules.
This rule was promulgated in response to the decision of the Supreme Court in Shop v.Eagle, 551 Pa. 360,710 A.2d
1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required
before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901."
Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The
general policy of the prompt disposition of matters set forth in subdivision(a)of that rule continues to be applicable.
II Inactive Cases
The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the
court. After giving notice of intent to terminate an action for inactivity,the course of the procedure is with the parties.
If the parties do not wish.to pursue the case,they will take no action and"the Prothonotary shall enter an order as of
course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter,he or she
will file a notice of intention to proceed and the action shall continue.
a. Where the action has been terminated
If the action is terminated when a party believes that it should not have been terminated, that party may proceed
under Rule230(d)for relief from the order of termination. An example of such an occurrence might be the termination
of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file
the notice of intention to proceed.
The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of
the entry of the order of termination on the docket,subdivision(d)(2)provides that the court must grant the petition and
reinstate the action. If the petition is filed later than the thirty-day period, subdivision(d)(3)requires that the plaintiff
must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or
legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of
termination on the docket and for the failure to file the petition within the thirty-day period under subdivision(d)(2).
B. Where the action has not been terminated
An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may
have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a
common law non pros which exits independently of termination under Rule 230.2.