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HomeMy WebLinkAbout12-5718 _ T - .,.T-_, _ _ _ _ _ _ _ T~ M T~ ~--r----_-- IN THE COURT OF COMMON LEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Plaintii~s) & Address(es) . Plaza K. Realty, Ltd., L.P. . 120 North Pointe Bpulevard, Suite 301 Lancaster, PA 176Q 1 . and : Case No. % a 'S7/~ Civil Term Plaza K. Realty-Carlisle, LP :Civil Action 120 North Pointe BbNlevard, Suite 301 Lancaster, PA 176UII , vs. ~ ~ w, Defendant(s) & Addrtess(es) ~ ~ b Associated Wholes~ljers, Inc. -gyp 1706 Spring Road ~ ~ Carlisle, PA 17013 . W PRAECIPE FOR WRIT OF SUMMONS ~ TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in tll$ above case Writ of Sum ons s III be issued and forwarded to ttorney her' Please Ci a oice) Date: Q ~ ~G Signature of Att ey rint Name: Richard B. bv, Esquire Nestico DrubY. PC Address: 1135 East Chocolate Avenue. Suite 300 Hershey, PA 17033 Telephone: 717-533-5406 Supreme Court ID Number: 61904 • • • • • WRIT OF SUMMONS To: Associated 1idlaolesalers, Il~c. YOU ARE I~f;LF1ED THAT TH7:,ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION a~A°fN~lT~Y0i.1. L~'~ri ~D.~,~tl _ - otfionotary/Clerk, Civil Division Date J"= , by ~~s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA c i PLAZA K. REALTY, LTD., L.P. and -tea PLAZA K. REALTY-CARLISLE, LPrn z Plaintiffs, No. 12-5718 k> C -4 D p-,� =C:) Ica ASSOCIATED WHOLESALERS, INC.. CIVIL ACTION-Ji c Defendant. JURY TRIAL DEMOD156 7A7 NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE COURT ADMINISTRATOR 4TH FLOOR; CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 240-6200 NOTICA LE HAN DEMANDADO A USTED EN LA COURTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siquientes, usted tiene viente (20) dial de plazo al partir de Ian fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archival en la corte en forma escrita sus defensas o sus objeciones a law demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacaion y por cualguier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE AGOGADO O SI NO TIENCE EL D1NERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE COURT ADMINISTRATOR 4TH FLOOR, CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 240-6200 Richard B. Druby, Esquire Attorney I.D. No 61904 NESTICO DRUBY, PC 1135 East Chocolate Avenue, Suite 300 Hershey, PA 17033 (717) 533-5406 (717) 533-5717 fax RDruby@hersheypalaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA PLAZA K. REALTY, LTD., L.P. and PLAZA K. REALTY-CARLISLE, LP Plaintiffs, No. 12-5718 V. : ASSOCIATED WHOLESALERS, INC. CIVIL ACTION-LAW Defendant. JURY TRIAL DEMANDED COMPLAINT AND NOW COME, Plaza K. Realty, LTD., L.P. and Plaza K. Realty-Carlisle, LP, by and through their undersigned attorneys, and file this Complaint as follows: 1. Plaintiff Plaza K. Realty, LTD., L.P., is a limited partnership with a current business address of 120 North Pointe Boulevard, Suite 301, Lancaster, Lancaster County, Pennsylvania 17601. 2. Plaintiff Plaza K. Realty-Carlisle, L.P., is a limited partnership with a current business address of 120 North Pointe Boulevard, Suite 301, Lancaster, Lancaster County, Pennsylvania 17601. 1 3. Defendant, Associated Wholesalers, Inc. (hereinafter "AWi") is a Pennsylvania corporation with a registered address of Route 422, P.O. Box 67, Robesonia, Pennsylvania 19551. 4. At all times relevant hereto, Defendant AWi leased a property from Plaintiff located at 1706 Spring Road, Carlisle, Cumberland County, Pennsylvania 17013 (hereinafter "Leased Premises"). 5. On January 2, 1976, a Master Lease Agreement (hereinafter "Master Lease") was executed by Frank and June Nardo as lessors and Safeway Stores, Inc. (hereinafter"Safeway") as lessees for the Leased Premises. See copy of Master Lease, attached hereto as Exhibit A and incorporated by reference. 6. On August 1, 1985, Safeway entered into a sublease (hereinafter "Sublease") whereby Safeway was the sublessor and Nells' Inc. (hereinafter"Neils"') was the sublessee. See copy of Sublease, attached hereto as Exhibit B and incorporated by reference. 7. Paragraph 5 of the Sublease specifically stated as follows: Sublessee has inspected the leased premises and found them to be in good condition and agrees to accept the same in a broom-clean condition. Sublessee agrees that sublessor shall be under no obligation to rebuild, replace and maintain or make any repairs to the leased premises or to the improvements thereon during the sublease term. See, Exhibit B, Sublease, paragraph 5, page 4. 8. Additionally, Paragraph 5 of the Sublease states that: At the expiration or termination of this sublease, or any extension or renewal thereof, sublessee shall leave the leased premises in good condition, allowance being made for ordinary wear and tear and damage by fire, or by earthquake, or by the elements, excepted... See, Exhibit B, Sublease, paragraph 5, page 4. 2 9. On November 4, 1996, a First Sublease Modification Agreement was signed (hereinafter "First Sublease Modification"). In the First Sublease Modification, Property Development Associates (hereinafter "PDA"), a California general partnership whose managing partner was Pacific Realty Associates, L.P. (hereinafter"PRA"), was the successor to Safeway as sublessor under the Sublease. See First Sublease Modification, attached hereto as Exhibit C and incorporated by reference. 10. As part of the First Sublease Modification, Defendant, AWi, was the successor to Nells' as sublessee under the Sublease. 11. As a further part of that First Sublease Modification, the term of the lease was extended until December 17, 2012. See First Sublease Modification, Paragraph 2. 12. Significantly, as stated in paragraph 9 of the First Sublease Modification, PDA acquired title to the premises. See First Sublease Modification, Paragraph 9. 13. Accordingly, in the First Sublease Modification, the parties acknowledged that, "as a result of Landlord's acquisition of fee simple title to the Premises, the Sublease is now a direct lease between the Landlord and Tenant and that the Master Lease has merged with the fee simple title of the Premises." Id. 14. As a result, sublessor under the sublease became the lessor and the sublessee, Defendant AWi became lessee. 15. Consequently, as the Sublease became the direct lease, the provisions of paragraph 4 of the Sublease control. The Sublease will hereinafter be referred to as "the Lease" in the remainder of this Complaint. 3 16. On June 30, 2000, PDA transferred titled to the Leased Premises to Safeway. See Deed recorded June 30, 2000, attached hereto as Exhibit D and incorporated by reference. 17. On that same date, PDA recorded an assignment of leases to Safeway, including an assignment of the Lease in which AWi was lessee. See Assignment of Lease and Tenant Lease recorded June 30, 2000, attached hereto as Exhibit E and incorporated by reference. 18. Also on June 30, 2000, Safeway transferred titled to the Leased Premises to PRA. See Deed recorded June 30, 2000, attached hereto as Exhibit F and incorporated by reference. 19. On that same date, Safeway recorded an assignment of leases to PRA, including an assignment of the Lease in which AWi was lessee. See Assignment of Lease and Tenant Lease recorded June 30, 2000, attached hereto as Exhibit G and incorporated by reference. 20. On June 20, 2002, PRA transferred title of the Leased Premises to Plaintiffs. See Deed dated June 20, 2002 and recorded June 26, 2002, attached hereto as Exhibit H and incorporated by reference. 21. On that same date, PRA assigned to Plaintiffs its interest under the lease and tenant leases, including an assignment of the Lease in which AWi was lessee. See Assignment of Lessor's Interest Under Lease and Tenant Leases attached hereto as Exhibit I and incorporated by reference. 22. During the term of the Lease, the Leased Premises experienced damage to the q floor area at or around the frozen food aisle of AWi's business. 23. Plaintiffs notified AWi on numerous occasions that AWi was responsible for the repair of the floor area. 24. Despite repeated demands by Plaintiffs to AWi to repair the floor damage, AWi failed and refused to undertake and complete the repairs. 25. AWi vacated the premises on or about December 17, 2012. 26. Prior to vacating the premises, AWi did not repair the floor. 27. Consequently, Plaintiffs were required to complete the floor repairs in order to relet the Leased Premises. 28. The repair costs totaled Sixty Two Thousand One Hundred Twenty Dollars ($62,120.00). COUNT I—BREACH OF CONTRACT 29. The foregoing paragraphs are hereby incorporated by reference as if fully set forth herein. 30. Plaintiffs and AWi had a contract whereby Plaintiffs would lease the Leased Premises to AWi. 31. As part of that Lease, AWi agreed that it was responsible to leave the premises in good condition and that Plaintiffs "shall be under no obligation to rebuild, replace and maintain or make any repairs to the leased premises or to the improvements thereon during the sublease term." See Exhibit B. Paragraph 4. 32. Plaintiffs performed their obligations pursuant to the terms and conditions of 5 parties' contract by leasing the Leased Premises to Defendants. 33. AWi failed and refused to perform its obligations pursuant to the terms and conditions of the parties' Lease by failing and refusing to make repairs required under the Lease so that the property was left in good condition at the end of the lease. 34. To date, as a direct and proximate result of AWi conduct, Plaintiffs has suffered damages in the amount of Sixty-Two Thousand, One Hundred Twenty Dollars ($62,120.00) related to the floor repairs. 35. Pursuant to Paragraph 9 of the Lease, upon breach of the Lease, AWi "agrees to pay all costs, attorney's fees and expenses incurred by [Plaintiffs] in enforcing any of the terms, provisions, covenants and agreements herein contained." See Exhibit B, Paragraph 9. WHEREFORE, Plaintiffs respectfully requests your Honorable Court to enter judgment in its favor and against Defendant, AWi in the amount of $62,120.00, plus interest, attorneys' fees, and costs of suit, which amount is outside the applicable limits of arbitration, and award Plaintiffs any other relief the Court deems just and proper. COUNT II—UNJUST ENRICHMENT 36. The foregoing paragraphs are hereby incorporated by reference as if fully set forth herein. 37. Plaintiffs continued to lease the Leased Premises to AWi with the understanding that AWi would be responsible for all repairs and maintenance of the Leased Premises and that AWi would leave the leased premises in good condition. 38. AWi benefited from its use of the Leased premises provided to it by Plaintiffs. 6 39. AWi failed and refused to perform its obligations pursuant to the terms and conditions of the parties' Lease by failing and refusing to make repairs required under the Lease in order to leave the property in good condition. 40. Plaintiffs have paid for the cost of repairs which were the responsibility of AWi under the terms of the Lease. 41. It would be unjust for AWi to retain the value of the damages Plaintiffs paid to satisfy AWi's obligations under the Lease without full and fair compensation to Plaintiffs. WHEREFORE, Plaintiffs respectfully requests your Honorable Court to enter judgment in its favor and against Defendant, AWi in the amount of $62,120.00, plus interest, attorneys' fees, and costs of suit, which amount is outside the applicable limits of arbitration, and award Plaintiffs any other relief the Court deems just and proper. Respectfully Submitted, NESTICO DRUB , .C. Date: ZG 13 By: ichard B. Druby squir Attorney I.D. No. 19 1135 E. Chocolate Avenue, Suite 300 Hershey, PA 17033 (717) 533-5406 Telephone (717) 533-5717 Fax RDruby@hersheypalaw.com Attorneys for Plaintiff i i '� � � YI ! � V , _�_ / SHOPPING CENTER LEASE THIS LEASE,is mode this 2nd i day of 'January between FRAtl1: A. NARDO and _T�,,.A,,,i L NARUO. hi s wi fe • .J - •� , lessor; , . - and SAFEWAY STORES, INCORPORATED.it Maryland corporation.,lesseei on flee following terms and conditions: 1. Premi-ses. Term. Lessor hereby leases to lessee a portion of the following-dexcribed real property in the City of 'Carlisle ,Couaty of Uri: . State of Pennsylvania Being the same property described on the metes and bounds describtion attached as Exhibit "B" hereto, • Rw.pis: on which property lessor is to construct the Shopping n es. (herein called the"shopping center"')as shown on the plan dated ook*4e—,' January 14. 1976 , attached hereto as)exhibit-"'A". The portion of the shnpping center hereby leased (herein called the"leased premises")is designated "Safeway"and'outlined in red on Exhibit "A", and includes the building,or portion of building,,and related improvements to be constructed thereon by lessor in accordance with the provisions of this lease. TO HAVE AND TO HOLD the leased premises,together with all iippurtenances. for a term_ of twenty (' 2O j years comnencing I September , 1977 and ending 31'August ,19 97 Store #13.2 R-216(9-67) '1- PNnfd in U.S.A.' Elul 2, neat, Lcssce•agrecs Its pay ilia following reels,by chods ter drafts payable to lessor, taxi maiktd to lessor at Glen Avenue Extended, Red Lion, Pennsylvania 17355 "Crux dcalpiateJ its writing by lessirr: (a): A fixed minimum rent in ilia sum of HIKE TROUSAi D ORE' HUNDRED SEVE11TY-TIMEE AND 1101100 _._...._ _ --.----- ^^UOLLA RS(S 9,173.00 )payable in adrift":list the Gat day of : Cach calendar munch during ilia term.Tile minimmt rent Cur any frue:ional calendar month skull be prorated. (h) A percentage rent in the amount,if any.by whirls one and one quarter per t�O'nt'f 1-1/4 ._. _ _ wry/` +Y—w�-mow _ _ j•' , ., 'of gross talcs made by lessee in the leased premises itt aarh calendar year or the lease tern exceeds the minbnuns rcpt rur ilia music calendar year.\o percentage rent sbuil be paid by lessee on grins Bain. Inax�assot TEN_14ILLIOIJ FIVE,11UNDRE6 SIXTY-SEVEN TINU$AND T140 HUi(DkED DOLLARS (S 10,567,200.00 Nn irny caicadar year. it iessee nceupiim Ilse leased prentists fora fractional pedud of. a calendar year,iscrcnlugs:real roe raid fracitunal,peritid sisal)be pxtsrated hated Ora the annual rare of gams sales made by kzsec ht lice leased premises during said fraciionat period and ilia annual rata or minimum rent rnr said fractional perisid. On lot bcrore lice ritilyirdt day rallitwing each thtarndau thirty-first during the lens and Ilse last day of the ' least lessee strait mail to lesxsr,at ilia place where rein is payable,a%taleownI slitiwing gross%airs made by letter if) plc leased premises during site lean ter this lease fur the calendar year or portion 11wreorIasi preceding lite due dale or ' such statement together with arty gltxecotage rent due: The term `grtra sales"as used Herein shalt nits include anyorthe following:(I)credits or rerunds to cusunners for merchandise returned its exchanged-(2)transrels of tnerchandisa fruits the leased premises as what stores or ' warehouses tit lessee or its affiliated companies;(t)any sulcs•taxes sir other taxes impos:d under any laws,ordinances, orders or regulations,whellier nrrw or hereafter In Gwre,upon sir based upon ilia gross receipts of lessee lit lie sale or sales price of netchat lase and wlti.lr most be paid by lessees whether or visit collected by lessee front its Cuslonver- (4) returns or tnerchatlJise to shippers or n> nuractnrcrs;(S)ilia net anuiunt or,tiisc000ts ultuwed lit auy cusioiner pursuant to any custumary and reasonable lwlicy aJoplud Ivy kucc.including in snub discounts.but teat by only of limitation,tilt net amount or ally discounts ntiowed by way uror re lathing from lie issuance to Cujit,lers of trading scampi or other avWcuces or gsurchase for inuaediate ter ruturs exchai,pe cur merchandise or olive(things of r:lue:and (G)merchandise or other things or vah is issued in re,xmplion of such trading stamps or other evidences of value,of Issued as a premium or otherwise In connection with any sates promotion program orlessee.Lasser agrees ta*hold In cunrudcncro all sales and related information furnisiscd by lessee.Lessee makes no representation or warranty as to lite sales which it expects to make in the leased preiises Fi xed rots nimum rent computed above is.based on an annual rent at the rate of THREE ANN 50/100 DOLLARS ($3.50) per square foot. If the size of lessee's store building shot vary from 31,150 square feet, then the fixed minimum rent shrill be adjusted appropriatel Lessee's store building shall be iteasured from the outside of exterior wails and the,' center of commit stalls and the loading dock shall be included if it is enclosed. ' nQ1a•6tti(4.441 'IA— Pnnire in US.A. IL 3.Lassoes vita.Toning.tosser covenants that leuor has lawful title to flitsltopping center and full right to nuke this Its-o and that,within thirty(30)day.after receipt of icssafes request,lcssor'swill piovidw losuo with• liccascd surveyor's raccnt snrwy or the sltopping center.which is satisractery to he-♦sec*and wlth Current evidenea, satisfactory to testa from a re:pousible title insurnncc convany or life status of lassoes title to ilia shopping center. Lessor rurilier ctrycnent:that,at tit*little artist,recording of the short form lease termed to to paragraph 23,ilia. shopislni}center will lie free frnm'c tiusubrances exrelrt thn•.e agraed to In writhnpf lay les$ca oath Hier them will lrs no -; anning,or other'of distances,or title or odtor matters,except thli o agreed to its will flit by lessee,whleh will•restrict. lessees operation ore pill Vd noreantile bush" (including the sale ornlcotwlie bereragas If not prohibited by law and it lessee obtains all necessary licenses and/or pernias at lessee's cxpenst)in th;Itawd promises or Ilia use of Ilia `coalition areas of lit¢shnpphn,^•ecdtor as provided for lit fills lease,an it fat so lung as laisco is not In doIfantt lessee shall have quid acid;paareful passer-lnn of Ilia leased prcmises and enjoy ail rights herein grantod without interrorerices in the event or any viohallon or any of the covenants made by.lcssor In this paragraph,lessee may cancel thislcase by notice to lessor. + 4.Common areas.Cumpletion and expansion of shopping canter.All thos f portion$artist shopping septet COY shown as building Areas Ott Exhibit"A"shall be-caau ion areas for the solo and exclusive joint use of aII*ua:t In flue shappilig center,aide custooten,Invltces and ennpluyces,and lessor hereby grants to Iatsee,and its customers. Invitees and employees fist right of sucht wulusive jniiit akin of all or said common areas aud'any ealarvament thercor. LessuPe:rees ilia(,at h:ssor's citpense,all common areas will be ntainufincd in good repair,kept clean and kept their o f$flow and lee and adequately lighted'wtiod stores:iiu open for'bilsiness.Lasser rurther A;tcgs that,ail buildings In . + ' tit;shwpping center other titan ilia building on the teased premises will be completed as shown on Exhibit"A"and ready fir occupancy by not iater•than 1 September ,i9 77 ,that,rutiai wif., eompleuon of construction of any portion of Cite shopping center,life sitaa and artan„ements or said buildings and •• cammanareas(fndudingparking areas)will not be changed without lessee's written consent,and Ilial If said buildings ' are not so completed or If said sites oe arrangensoms are changed without lessee's written consent,tesxeo may cancel this)case by notice to lessor.Lessor further agrees that Ir the shopping center Is expanded by owstership,control of lessor,or agreement wills a third party,all of ilia provisions cr this lease with respect to the shopping center and the leased picruises sisal!apply to,the•expanded srca,and tit*parking to building ratio in the cxpandad'ares of the shopping center will riot be loss titan the ratio shown on Exhibit"A". 71to pnsvislonif of l'amSi%phs 4 kind S hereof notwithstanding,In rho event hcssor has not commenced tits, eosistruption of all buildings in tho'shopptng center including the building On ilia leased premises on or before Alm February,*• ' -.1977 ,lessee may cancel(1iis,Iease by notice to lessor.The yore's "commenced the consttuctiffe as used horde being defined to mean the complotlon of taundations of all such buildings. • f• _ :a Rev.Dstt ' A rG lrtw,G 7 }32 « • Printed In U.c•A. S.. Construction of common areas and lessee's building. Plans and specifications. Lessor' agrees. at lessor's Kole cost, rink rind expanse. to construct on 'the common arena a sign tower for lessee. all parking field service arena, sidewalks, driveways and related Impron"ants shown cn Ex- hibil "A" and to eonslruct on the lensed premises•building or portion of a'buiIding.all in accord- ance with plural tied specifications to Ira prrptued at lessor's expb:nne by USS & Harper (atchituc f),and approved in writing bj• lessor and leaser.. Lessee Shall furnish laxnor with drawings and/ar xieveifieafions selling forth lessee's requirements to be in eorporated in the plans and specifications to be prepared by the architect.Upon approval by the piit- tios. the plans and specifie+.tions shall-become a part of this lease as though net out in full herein. If. for any mason whatsoever. the parties fail to agree on plans and specifications on or before 1 Sept"er . 19 76 ,either party may cancel this loose by notice to the other party within ninety (90) days thereafter. lessee may have the plans and specifications revised,at lessor's expense.If more than ninety M)days elapse Ibetween the date of approval of plans and specifications and the date of commencement of construction of the building on the leased premises.lessor agrees to complete said construction work(which shall include lessor's obtaining and furnishing to lessee of any earlificote of occupancy or like document required by lawful authority)by not later than the date of ecVneencoment of the term of this ktase specified in paragraph I. Lanmee may enter upon the leased pmraises daring the ewtnce of construction to inspect.the construction work and to install its fixtures and equipment and such entry shall not constitute acceptance of possession of the leased premises by lessee: S. Acceptance of possession. Thetermof this lease shall not commence until lessee accepts possession of the leased promises. Lessee shall accept possession of the leased premises when they are ready for occupancy. lhd'words "randy for occupancy" being defined for this purpose to mean . the date upon which the construction work referred to in paragraph S is fully completed In accordance with the plans and specifications and exclusive possession of the leased premises is delivered to lessee-If lease* accepts possession of the leased premises on a date other than the commencement date specified is paragraph 1.the term shall corgmence on the date lessee accepts possession but the expiration date specified'In paragraph 1 shall remain unchanged.If. for any reason whatsoever. the lensed premises ore not ready for occupancy within ninety(90)days after the commencement date specified in paragraph 1, lessee may cancel this lease by notice t9 lessor.Notwithstanding the PM- visions of paragraph 2, the rent shall not commence,become due., or be payable until thirty(30)days after the term of this lease commences or until the date lessee opens for business in the leased premises.whichever shall first occur. 7. Lassoi s rrpoirs. Lessor el;rres lu keep the building structure an the leased premises (including.without limitation.therool, roof structures and supaoris. foundation and structural suppons. Malls. atrucxural portion of the flours, chimneys, skylights, gutters,downspouts and exterior doors) and all hunting. veutiluting and cooling equipment. Kirine. plumbinx and plate glaxs in good repair during the tense term and to paint the exterior when needed in colors approved by lessee. If lessee is . deprived of the u►e of a substantiul portion of the leased pref isrs during file making of any reppirs. improvements or altergilions by lessor under any provision of thin tease,the tent shall be abated or proliortionstrly,reduced according to the extern to which lessee in deprived of much use. R-716 H s7t .3• ►..+•rd i.U.S.A. 8. Lessee's repairs.Utilities. Lessee agrees to repair all damage to the leased premises caused by lessee's use other than ordinary wear and tear and the matters covered in pnrapr:aph 7 and . that on surrendering possession it will leave the leused premises in goad conditiai;'allowance being merle fee ordinary wear and tear,damage by fire,the elements or other casurdly, or resulting from tire acts of persons bthcr Ilion lessee, or from defects therein, being excepted. Lessee may make such repairs, alterations slid improvements to the leased premises as lessee deems desirable but lessee agrees not In permit tiny liens tostand agninsl tlae leased premises for work clone or materials furnished. Lessee may paint the interior of the building on the leased premises in such colors as lessee elects. Lesseeshall have the exclusive right to paint, erect or authorize signs in, on or about the building on _ the leased premises and may. at any time, remove signs and color effects installed by lessee. On surrendering possession lessee*hall not be required to restore the leased premises to their-condition at the commencement of the term, and lessor agrees to accept the leased premises with alterations and improvementsmade by lessee. Lessee agrees to pay all charges for electricity, gas, Beat,water, tele- phone and other utility services used by lessee on the leased premises. 1� 9. Lessee s fixtures. Lessee may install in the leased premises such fixtures and equipment as lessee deems desirable and all of said items shall remain lessee's property whether or not affixed ' or attached to the leased premises. Lessee may remove said items from the leased premises at any.. time but shall repair any damage caused by removal. 10. Complionce with lows. Lessee agreesnotto violate any law,ordinance,'rule or regulation of any governmental authority having jurisdiction of the leased premises and.*if required solely by �.. reason of lessee's type of busiaoss, to make nonstructural repairs, improvements and alterations to the interior,of the building on the leased premises required by-such authority. Lessor agrees to make all other repairs, improvements or alterations to the leased premises and the common areas required by such authority. 11. Damage'by casualty. if the leased premises are damaged by fire, the elements or other. casualty, lessor shall promptly repair all damage and restore the leased premises to their condition just prior to the damage.if lessee is deprived of the use of any substantial portion of the leased premises eitherby reason of said damage orduring restoration, the rent shall be abated or proportionately.reduced accordingtotheextent to which lessee is deprived of such use. Lessor agrees to keep in effect on the leased premises fire insurance with extended Coverage endorsement in an amount not less than eighty pereent(80%)of the insurable value of the building improvements thereon. if lessor's insurance policy permits the release of others from liability for loss from casualties insured against, such release from liability ishereby granted to lessee to the extent of lessor's actual recovery of loss under such policy., If the leased premises are damaged by fire, the elements or other casualty to the extent of seventy-five percent(75%)or more of the insurable value thereof, lessee may terminate this lease as of the date of the damage by notice to lessor within thirty(30)days after said date. R•216(9.67) _ -alp priwesl ie U.S.A. 12. Condemnation. If any porticen of or interest in the shopping center locluding,without lire station, the loosed prendxett,the common wtn.a,and the other buildings in the shopping c:n:et,tdtall be taken at dumugcd under any right of eminent domain or any Irausfer in lieu ih ere-ot,and such takint or damage ranches ilia loosed praminex unnuituble Is Ilia judgment of lessee for lessee's buAhess operations.Icssuernay umeet this loaxc by voice to lessor within thirty(30)days after such taking or dama.-p deprives iesuce of possession of tiny portion of the leaned premises or of any other.rights of lesnecunderlhix tensc.lf this leave in ace no terminated,lessor shall promptly rcslore the shopping eanturtuan architectural unit asnearly coinptuuble as practicable to ilia unit existing just print to such taking or damage and this lease shall conlinue, but, commencinr.with the date on which Icsaee is depdced of the use of my portion of the leased praminen or of tiny rio-as uudar this lease,the rent shall be abated or proportiunutely reduced uccording to the extent to which lessee is deprived of such* use or rights.Nothing contained herein shall prevent lessor and lessee from proxecctine claims in any . condemnation proceedings for.the values of their respective interests. 13. Assignment and subletting. I.ussee may assign this lease or sublet the whole or any part of the leased premises.if lessee assigns this lease,lessee shall remain liable as a suratp to lessor for full performance of lessee's obligations. 14. . Deleted 15. Indemnification. Lessee agrees to indemnity lessor against and save lessor harmless from all demands, claims, Louses of action or judgments,and all reasonable expenses incurred in inves- tigsting or restating the soma,for injury to person,loss of life or damage to property occurringnn the leased premises and arising out of lessee's use and occupancy,except if Caused by the act at neglect of lessor,its contractors,agents or employees,or occurring vit the common areas if caused by the acf or neglect of lessee,its contractors,agents or employees.Lessor agrees to Indemnify lessee against, andsave lessee harmless from sit demands,claims,causes of action or judgments,and all reasonable expenses incurred in investigating or resisting the same,for Injury to person,lost&of life or damage to property occurring on the common areas,except if caused by the act or neglect of lessee,its con- . tractors, agents or employees, or occurring on the leased promises-it caused by the act or neglect of lessor,its contractors,agents or employees,or occurring anywhere within the shopping center prior to the commencement of the term.The parties shall maintain adequate insurance covering their obligations . under this paragraph in respect of injury to person and loss of life and furnish each other with evidence of such coverage. . It. Default. If lessee shall be indefauIt for more then twenty(20)days allot receipt of lessor's' notice specifying such default, lessor may declare the term ended and re-enter the leased p-emises' with or without process of law.It lessor shall be in default for more than twenty(20)days utter raceipt of lessee's notice specifying such default, lessee may incur any.expense necessary to perform any obligation of lessor specified in such notice end deduct such expense from the rents thereafter to become due. The.performance of ouch and every covenant and agreement by lessor herein containe i . shall be A condition precedent to leasur's right to collect rents or enforce this lease. .. 011:21e(tb•.2.e1)32 - 'S' .Y.mt•1 in U.S.A. 17. Options for ren+wui. l.esxr-e,at IVA-tees option,by giving lessor sixty(60)clays'written noticetwfore the expiration of ilia term or option form then in effect,may extend the term of this lease for nix (6) separate and additional periods, of fire(5)years each tun the same terms and conditions. except that lessee, by giving lessor one hundred eighty(180)days' written notico, may cancel any option term then in effect. 18. Holding over. If lessee remains in po.session of the leased premises after the expiration ofthis lease,such continued possession shall, if rent is paid by lessee and rccepted by lessor,create a month-to•monthtennncy on the terms herein•specified.and said tenancy may be terminated at any time by either party by thirty(30)days'notice to the other party. - 19. Notices. Any notice provided for herein shall be givein by registered or certified United' States mail, postage prepaid, addressed, if to lessor,to the person to whom the rent is then payable at the address to which the rent is then mailed,and,if to lessee,to It at 6700 ColutFjbia Park Road, Landover, Maryland 20785. The person and the place to which notices are to be mailed may be changed by either party by notice' to the other party. 28. Principal tenants. Lessor covenants that, by not later than ninety(90)days before the•. i lease commencement.date specified In parstraT h1. lessor will furnish lessee with proof sstisfactr`' lessee that lessor has entered Into leases/ 7the following tenants for space in the shopping center In the location shown-on Exhibit"A"and in an amount not less than the amount set opposite each tenant's name,for a term not less than the number of years set opposite its name: , Drug Store 4,000 ttrenty (20) sq. ft, years .1 M Bank 1,500 sq. ft, taittnty (20 years sq. ft, years Lessor covenants that each said tenant's lease will be noncancellable except for cancellation rights based on default, casualty damage or condemnation which are substantially similar to such cancel- lation rights set forth in this lease,the words "substantially similar"being defined for this purpose to mean that the event,act,or inaction,which gives said.tenant a right to cancel its lease would-also under the terms of this lease give the herein lessee the right to cancel this lease if such event.act, or inaction was experienced by the herein lessee ether than by said tenant. Lessor covenants that all of said tenants will have opened their respective stores to the general public [or business by not later than the lease commencement date specified in paragraph 1. If any of said covenants are not fulfilled, , lessee may, at its option, either (a) notwithstanding the provisions of paragraph G refuse to accept., pos_:ession of the lensed premises until said covenants are fulfilled,or(b)•accept'possession of tire lensed premises and open for business without incurring any obliV41ion fat minimum rant until said covenants are fulfilled. R•216(9.67)32 '�'' P"in"in U.S.A. ♦ ` ' y ... do If any lease referred to above is cancelled prior to the expiration of the tern prescribed for that lease. except pursuant to a cancellation right substantially similar (as defiurd above)' to'tIt Cancellation rights contained in this lease for default, casualty damage or'condemnnt Ion.lccaee' -P obligation to pay minimum tent shall cease as of the date of such cancellation and lessee's obligatlo pproof,g�tisfarrtory, tor for minima rent shrill not resume until ta)lessor st ll have furnished Itsm wrtlt/a.rery+y�... lessee Mat lessor nag,etttereA into a 'ease ellevated lease of oil 11 "me with a similar tenant acceptable to lessee fat the-same space in the shopping confer and for a term of not less than the remainder of the term Specified in, such cancelled lease and (b) such similar tenant shall have opened its store to the general public for business. The name of such similar tenant shall then be deemed to be named as a principal tenant : as listed above and be subject to the provisions of this paragraph. If such similar tenant has not opened Its store to the general'public for business within one hundred eighty(180)days after such principal tenant's lease Is cancelled, lessee may at its option cancel this lease by notice to lessor. 21. Remedies cumulative.' No remedy herein conferred upon or reserved to lessor or lessee shell exclude any other remedy herein or by law provided,but each shalt be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or ie equity or by statute. 22. Automatic termination. Notwithstanding anything herein to the contrary, if this lease has not previously been terminated and the term of this least has not commenced by five(S)years from the date of this lease. this lease shall thereupon automatically terminate. 23.' Short farm lease. This lease shall not be recorded but it Is agreed that,upon request by •�' ' either party,the parties will Wiecute a short form of this lease which may be recorded by either party, 24. Attorney's fens. if lessor or lessee files a suit against the other which is in any way connected with this lease, the unsuccessful party shall pay to the prevailing party a reasonable sum for attorney's fees, which shall be deemed to have accrued on the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 25. Paragraph headings. The paragraph headings of this tease are inserted only for reference: and in noway define,limit,or describe the scope or intent of this lease nor affect its terms and provisions. 26. Rights of successors. All of the rights and obligations of the parties under this lease shall bind and inure to the benefit of their respective heirs,personal representatives,successors and assigns. R•216 t9•i71 .t- Pr.nt.3 ie U.S..A.. `C;7. 6XV-61 AMA 1•;VV:4t:I:. Z:. 'l-:nx:e u cw► La'Fj btu✓.i Lca::or,fur loasee'u uhnri: of tH2 actu:til cortz; incur.-Y-4 by lessor in IiurtliC the- -- ctnr.ron areas, in keepirq. abrr clears ani cle3.-�ed or of snow and ice nrrJ in rrnintainini; ttu: carman areas in Good repair, excluding; Ji74- ever, the costs of any capitalicable improvements or additions to the com.wn areas." Lcusee uhall so reLnburse lencor•after receipt of satisfactory eviem-nce'or said.contz arri the arrotrnt deri from lesace, but not r:oz'e often than once each ninth. 'Irssaee's ob.aro shall be a fraction of maid costs, the rxrrerntor or which i a:tion shall be the buildirr..am--t on the leased Issrin.lr es and ttr-- denoadnator or which Wall be 'thrz total buliding terra in .»---.----•- zltur shopping center, including the building bn Use lcaaed proil.::M;;, as ahoim en t-'Wiibit "A".Lcauor agr'eea that in no event :iril.l ' the amounts pv..ib,e by lensee'umha* thin parai', .lsrh in nnv calendar year exceed TWO THOUSAtiO Fat=£ 11WIDRED A:20 110/100 DOLLARS (SP.SOD.00). In the event any per= tentage rent shall be payable to lessor under Paragraph 2 of tics 'lease for any calendar year, all sums paid by lessee under this paragraph during the sable calendar . .__..year Shall be-deducted-from the percentage rent.othenrise payable to.lessor. Lessor xtgccu to pt>,y' all real property taxes on.thr entire,atappii>i; center and all Srrprovenr_nts thereon with possible raimburseami: by lesser; of a portion thercor.aw '' troroinafter provided. For the pro=poses or this para;sph, the first tax year iii which the buildin[w etxl cotnron areas shown on Exhibit "A" are fully canleted ra d are included in the real property tax bill is hereinafter refer ad to as the "byse year", If the real property taxes on the fully completed buildings and co",.)n areas --.as charn on niriiibit "A" for any tax year while this.•lease rc«ains -in effect.exceed sucii real property taxes for the base year, lessee shall reimbar'se . lessor for lessee's share of such excess provided lessor requests such reirtiurseiwnt not later than sirty (60) days after the delinquent date for such taxes.* Lesse='n share shall be a fraction of such excess, the numerator or which traction stall be, tie buildlM area on the leased premises and the derrndnator.or which shall be ire total building area in f the shopping center, including the building on the leased premises, ap shown on'Exhibit r'A". Lessee shall so reimburse lessor. withie• thirty (30) days after receipt of satisfactory evidence of lessor's-pay=m.�nt o: such amount taxes and the aunt due from lessee. Lessee shall not be obliged to pay any pbrtlon or arty penalty for delinquent payarrit by lessor or'such taxes. Any tax re"urser.^nt by lessee hereunder shall be prorated as of the.termination or expiration date or Uhl-.,- lease. Fissaor shall proaptly notify Lessee of any notice or increased assessment aMinst the%hopging center by sending lessee a copy of the notice. Lessor atrxees. to cooperate with lessee if lessee elects to challenge the increased astessarnt. ` Lessee's obliintion Voo reimburse lessor for lessee's share of any increased taxes is coillItioned u(it,n.lcs:or,having ro notified lessee and cooperated with lessee,iri any civillenge to tip-, increased asseswtrunt. In the event any'percenttige rent shall 6e'° payable to lessor under Paragraph 2 of this lease for Any calendar year, all sums ...paid by lessee under this paragraph during the same calendah year shall be deducted, from the per•ceptane rent`otherwise payable to lessor. IN WITNESS 14PEREOF, the parties hereto have executed this Shopping Center Lease, lSea ' —Frank A. liar - r aro', riswry L sor) SAFE1 I" IiICORPORATED . ar, iarylan corporation) . (CORPDRATE SEAL) 'a;`" sssstant rc resTCent 7 l is ssrstant ecretary (Lessee) i n ---- w vroww"s snerv� •-ma y N `i/ d 1 5 _ 4'..' _ " "•" x�;�•-n . IL A 4L • ��:./t G`rrn+:t. •.^I�Id'.r1"e4 N7 Y%SY 9'fY . y�lY 7V:st `"' :.`,�".� 34 "7v: r•� /•;y�l-� '� 3aao�•t •4fi)d`Jhl ••rtr•.nn'+t jtaeiL• ,� •rr7Vfl ��. " • •''b�', .t'• f(Gf' Z AS�71L75t 9P+rAN! 1e+ ,fiw7htNt ove lot �l+'. •XKi.'t • �+ +... e� 'rINVxGr•I �StirbC.• xYM9/K ti`,fh .`` +�fj /�.�,/ f� j.. • :.•yary,a�i�.��f. s+caa�'Xvi/191�'d .-•^.•,'" --- •! / � � p� fl t j• �Jj+(Y` �J' . SiTA1fi�f.2 : rw+wMG + � t.@��,.,+ ;v' �• •! p yy�.r' S27A"3 A3 Sr+•8ty=fi+d4?nr$9S iISv'/L•t.Lr•YlN3>,rf�YtTt. - -`+I 'te r' rI . 'L EGAD'DESCRfPY14U• :bEGIU11I UGbT•APbIU.T'1W'TUECLUTEaLWE'OF STATL NiGU\VAy;R41�T1.+�. •u'u4\V�i bS,'SPQ1t1Gf�nAO,AY,LeJ�S OF:RnbERT '13c��VE}1;Sb\4.�h}}S7• . . $6 •E:, A33A FEE I- MOM' ?uT,.C£)11E.�L)Ub'©fi STE. MOTS GAP .; �pV1r1 sl 1E;;:TUEIJCF.`A'LC'UG•}.A1JOS,AF S20t3ERT 8O\UE.tI, 112i`5�\V � A1STA3�Ct OF. 143,011%FEET 70 A PQIUT;TI E.IJGE. ALnuGSAtut>+ A)J!? iQUOi G)F micw6w) S\k1•AQiT., U64660,NV A DISTAUGI: OF"2.10.0 FE,0.70 "O PQ}U7 . IQ- $'TEt2C4E.TTS GoP � kVb)}U£;'t:UEUCE b`j Q L)IJE IU STERR .Ti GOP A\J-tubL,u)I.3G'£ A.DIS4MCF. OF '70.12 "EETTOAPOIU7 : TNEMCL LT ' G1STbUGT.OF '68.55 FEET.TOA•PO)UI; TME)lCL Wl 5A•lVEI M09`10-SO"\V:.A D,ISTAUC£ O1+ 102.35 FEET:TO.4 MUT AT LAUDS' OF' P,C.i•.Me-CL}UTOC14 Mi lkL,ALOUG SAME.'AM0 LaM,M QT' MERLE;::. AALL'S9OUSE'AU iA 0 mu ICV-','•)S•61.0 OA*E.•A 01S'TA'QCE.QF .'335.25 F 1u"ji-)4C:C�:I,.1TEA L•1'1A.0; SZb7E341G)4wh%j;ROUTL*.', 34.-Y- JC`W) AS SPQIMG' 0L0bD'-,IAL, ICE by A LI 1!!, 111 SA 10• QQ-b D:. . THE I:4LLc»\}iIJG-:CC)US2SE.S. S2g"3•?'W A 0 1STtUC,E W.5A.11TE.k1,1C)J)Mw f; S3"2.''2g°\LJ.AC3is'fAiJCtOF-Inn.A Ff.LT`TO.Q.Pn}1JT� 53'I'3A'30�\u n aisihIJU - -0F7.1,OO-0 FEET TO A POIUT; S4.466e.V•A0ISTS}SCEOS �C)')'uT;:�S�t?`32"�UADlS'TSIJGEA:F:IAt'�.C3�F1=E't T{'3APt'�9a1'�; '555.42"itl-A •`''• D I}STAUCE OF;IC;O.O FEET.TO A POSIT ;'S ;01500 b D1STAmr-E. GF_106.a FTc S�7r•TC)%7u E,:PLbG E�c�`F'-P.sEC�l1l111}J Ca,.:..' ,.��.;., .- _ .: C;011T;Q1�JlIJG"'4:541 ACS2ES . . ' , .` -'' • . . .. Eack btsca'irT1014 a�aT�st�S siit3tiEy:'NcS :SLfUALVILVID.AVO AP rmliEt.h%J • La�uybn�:�ti'fLE�11,iS110.4ucc •Gort9o0.ot1oi+-• •� "' •• � ` .± •4}l.t',:.:�'M•GIs.}: L' 9:.:'.rq.: »: •.+' .. •T•!.. *rt1RVE`!(X13•..t�.t?:12AFF81SSPEI2U�:R'ASSACi1s1lLS �S}10R.•bE'd`MiFEQLICE- 6LLQ,•Zoo14:ig-jFAGE4'U. QLCO*flDF-Q 0 AL.LT)I ax>:1GE:Ct1M8bi21 rJUt7 GC)oQrJ t.C)t)so, 140tiS L• cAfll SLt,,m.-, �V Ea&GE:,gE.a1.L'4 '12 4) jJ L1. i5' 3V EQAGE. y,Eb.2L`J'SUO\V F:.LL ', ;;, . .0 U,IUG•''}t,C.- IG 4W(A-V COMM-EECAC)A1.' 0 T-!- EXHIBIT 8 i •• - - SUBLEASE THIS SUBLEASE, made 'the lat day of August, 1985 between SAFEWAY STORES, INCORPORATED,. a Maryland corporation, hereinafter. referred to as sublessor, and NELLS' INCORPORATED, a Pennsylvania corporation, 600 Arsenal Road, Post Office Box'1,928, York, Pennsylvania 17405, hereinafter referred to as sublessee; W I T N E S S E T Hs That, in consideration of the mutual agreements herein contained, the parties hereto .do hereby covenant to and with each other as followas 1. Premises. Term. Sublessor does hereby sublease to sublessee a portion of the shopping center on the followtn Cume land described property in the City of Carlisle, County of-Fork, State of Pennsylvania, designated as 1706 Spring Road, Carlisle, Sennsylvania, to wits the property described in Exhibit"B" to this sublease and Exhibit "B" to the master lease referred to in Paragraph 4 of this Sublease, a copy of which is attached hereto. Together with sublessor's rights to use the shopping center common areas adjoining the above-described premises as set forth in the first sentence of paragraph 4 of the master lease designated in Paragraph 4 hereof. The portion of the above real property hereby leased (herein called the "leased premises") is outlined in RED on the History . Record plot plan dated March 22, 1978 attached hereto as Exhibit "C" and incorporated herein by reference. TO HAVE AND TO HOLD the above described leased premises, together with the tenements, hereditaments, appurtenances and easements thereunto belonging, at the rental and upon the terms ne an�ionenRalf g }stated for a term lo,,ELEVEN (li} years -&bSVEN-fk4- months, commencing with the iY day of- ��JOU'i,� 3985 and extending through the "31st day of July, '1997. -Sublessor . agrees that sublessee at his option may take possession of the eased promises earlier than 1569] .guiff-1985 if the sublease has been fully executed and sublease* desires to take possession. 2. Rent. Sublessee agrees to pay the following rents, by checks or drafts payable to sublessor and mailed to it at Non-Operating Property Account #1389, Safeway Stores, STORE #1389 DIV. Washin ton D.C. LOCATION York Penns lvan s DOCUMMT ATE Au at 985 . Page 1 of 14 pages {1389 SubleaselLS7} . dik Incorporated, 201 4th Street, Oakland, California.94660, or as . designated in writing by sublessors U 1D FO UNDRED EIGH (��aNN)pp 33A����r��eppnpt in the ' su11m o��fggg�g � EMR s( �1��1-86=. ) payable in advance on the \` first day of each calendar month during the term: The rent for any fractional calendar month shall be prorated. (b) A possible bonus payment in the amount, if any, by which one and one arter 4u percent (1�w.�-of gross sales`" _ C t_.� e� eight:million h eight hundred $jxcjgusand•-eighty And-.no/100 dollars-($8.,$96:i08pc.Qo-;made by .sublessee-in•_the :- •lea'aed:preed3sea in eaclr•nalender hear.:- '.- �. ti_Q?3 . No percentage rent shall be paid by sublessee or gross sales. in excess of TEN MILLION FIVE HUNDRED SIXTY SEVEN THOUSAND TWO HUNDRED AND N01100 DOLLARS ($10,567,200.00) in any calendar year. If sublessee occupies the leased premises for a fractional•period of a calendar year, the possible bonus payment for said fractional period shall- be prorated based on the annual rate of dross sales made by sublessee in the leased premises during said fractional period and.the annual rate ,of rent-for said fractional period. On or before the thirtieth day following each December thirty=first during the term and the last day of .the term . sublessee shall mail to sublessor, at the place where rent is payable, a statement showing gross sales made by sublessee in the leased premises during the term of this sublease for the calendar year or.. portion thereof last preceding the due,date of such statement together with any bonus payment due: The term 'gross sales• as used herein shall not include any of the followings (1) credits or refunds to customers for . merchandise returned. or, exchanged; (2) transfers of merchandise from the leased premises to other stores or warehouses of sublessee or its affiliated companies; (3) any sales taxes or other taxes imposed under any•laws, ordinances, orders or regulations, whether now or hereafter in force, upon or based upon the gross receipts of subleases or the sale or sales price of merchandise and which must be paid by subleases, whether or not colleeted.by sublessee from its'customert; (4) returns of merchandise to shippers or manufacturers; (5) the net amount of discounts allowed to any customer pursuant to any. customary and reasonable policy adopted by sublessee, including in such discounts, but not by way of limitation, the net amount of any discounts allowed by way of or resulting from. the issuance to customers of trading stamps or other evidences of purchase for immediate or future exchange for merchandise or other things of STORE #1389 DIV. WashinqtoLaj D.C. LOCATION York, Pennsv vania DOCUMENT DATE Au ust 1 1985 Page 2 of 14 pages (1389 Sublease/LS71 ." (.� '- ♦. , • value; and (0•morchandise or other things of-value :sued in redemption of such trading stamps or other evidence of value, or issued as a,premium or otherwise in connection with any sales promotion program of sublessee._ Sublease* makes no representation or warranty as to the sales which it expects to make in the leased premises.' 3. Use.' Sublessee agrees that the leased premises shall be used only for a supsrmarks�,�::: * :;� A r . • Sublease* agrees . that sublessor tray, at any time during regular business hours, enter upon the leased premises for the purpose of inspecting the same. 6. '• Master Lease. .Sublessor covenan to, that sublessor's rights with regard to the leased premises are set forth under the terms and provisions of that Shopping Center Lease, dated 2 January, 1976 with First Shopping Center Lease Modification Agreement dated 14 June 1976, entered into between FRANK.A. NARDO • and JUNE A. NARDO, as lessor and Safeway Stores, Incorporated., a Maryland corporation, as lessee (hereinafter referred to as *master lease" with the lessor therein hereinafter referred to as •master lessor*). This sublease is subiect to all of the terms and provisions (other than payment of rent) of th*'master lease and subleases agrees to be bound thereby. Sublessee acknowledges receipt of a copy of said master lease and any modifications (attached as Exhibit A to this sublease) and agrees that during the term of this sublease, sublease* will not violate any of the terms and conditions'of the master lease. Subleases agrees to -hold sublessor harmless from all liability by reason of a breach of said master loans, which occurs as a result of any action or inaction by sublease* (whether or not said action or inaction is consented to by sublessor) and sublease* agrees, if requested by sublessor,, to undertake the defense of any action brought by the master lessor' under the master lease as a consequence of said breach or alleged' breach of said master lease and subleases agrees to release sublessor from any lose sustained by sublessee as a result of any such breach or alleged breach of said master lease. Sublessee agrees that in the event the master lease is terminated before the expiration of the term of this sublease, then this sublease and all of the rights and obligations of the parties hereto shall also terminate as of the date of termination of said master loss*. Nothing herein contained shall be deemed to waive any of sublossor's rights under Paragraph 9 hereof. . STORE #1389 DIY. WashingtonD.C�. LOCATION York, Pennsylvania DOCUMENT DATE August , 985 Page 3of 14pg8'eF - - (1389 Sublease/LS7) - .h S. Maintenance. Alteration. Personal Property. Sublessee has inspected the leased premises and found them to be . in good condition and agrees to accept the sash in a bropm-clean condition. Sublessee agrees that sublessor shall be under no obligation to rebuild, replace and maintain or make any repairs to the leased premises, or to the improvements thereon during the sublease term.' Sublessee sirens, at subleases's expense, to assume all of the losses's repair and maintenance obligations' under the provisions of the oaatsr lease designated in Paragraph 4 hereof. Sublessee agrees that it•shail not make any alterations, additions or remodeling improvements or changes in the building situated on the leased premises without first obtaining sublessor'■ written consent. At the expiration or termination of this sublease, or any extension or-renewai thereof, sublessee shall leave the leased premises in good condition, allowance being made for ordinary wear and tear ,pnd damage by tire, or by earthquake, or by the elements, excepted, and sublease* shall not'be required to restore the leased premises to the condition in which the leased premises are in as of the commencement of the term hereof, it being agreed that , sublessor shall accept the leased premises with such alterations or any new improvements as may have been made pursuant to the authorisation contained in this paragraph. Sublessee may place or' install in or on the leased premises such fixtures and equipment as it or its subtenants or assigns shall deem desirable for the conduct of-buainess therein. Personal property, fixtures and equipment,,used in' the conduct of subleases's business or in the conduct of tha business of subleases's subtenants or assigns , (as distinguished from fixtures and equipment used in connection with the operation and maintenance of the building improvements) placed by sublessee or any subtenants, on or in the premises, shall not become a part of the realty, even if nailed or screwed or otherwise fastened to the premises, but ghall retain their status as personality and may be removed by sublessee or subleases's subtenants or assigns at any time. Any damage caused the leased promises,by the removal of such property shall be repaired by sublessee at its expense. Subleases agrees that it will not permit any mechanics',• materialmen's or other liens to stand against the leased premises for work or materials furnished sublessee in connection with any alterations, remodeling, additions or new construction undertaken by sublessee on the leased premises. 6. Utility Charges. Sublessee agrees that it will pay all charges for electricity, water, gas, telephone and other utility , services used on the leased premises.. STORE #1389 DIV. Washin ton D.C. LOCATION Y rkr Penns vanla DOCUMENT Z August 1, 1985_ Page 4 of 14 page f11a0 lRnhl�w..�/T.Q71 - - ,7. Casualty Insurance. It is understood,thit the master lessor in the master lease designated in paragraph 4 hereof, or sublessor pursuant thereto, keeps in effect on the leased premises fire insurance with extended coverage endorsement in the amount of eighty percent (801) of the insurable value of the- building improvements thereon. . Sublessor may be obligated to reimburse master lessor for said insurance premium or sublessor" may be obligated to pay the premium. if sublessor is so obligated, sublessee agrees to pay to sublessor as additional rent, an amount equal to the premiums reimbursed or paid by sublessor for such insurance. Sublessee shall so pay sublessor within thirty (30) days after receipt of notice from sublessor of the amount due. Should the leased premises become untenantable by reason of fire, earthquake, accident, or other casualty, no rent shall be paid while the same are being repaired. It is further agreed that sublessor shall not be liable far any injury or damage to sublessee or to the agents, employees or property of sublessee caused by defective fixtures or pipes, or caused by injury to the leased premises, or from any other cause. S. Casualty. - Condemnation. '.Subleases agrees that in the event the leased premises are materially damaged by reason of fire, or by other cause, or in the event any portion of the shopping center is taken by any person or corporation, municipal, public, private or otherwise, by condemnation proceedings pursuant to any law, general, special or otherwise or by any transfer in lieu thereof, sublessor may, at its option, terminate this sublease by delivering or mailing to sublessee thirty (30). days' written notice of such termination. Such termination' shall discharge the parties Hereto from any further rights or obligations under the provisions of this sublease. Sublessor shall be the sole judge as to what constitutes material damage to the leased premises: Sublessor agrees that the condemnation or taking of a portion of the Shopping Center must be sufficient and of a reasonable amount to render the subleased premises: unsuitable for sublessee's business. " 9. Default. Bankruptcy. in case default is made in the payment of any rent or additional rents herein agreed to be paid, or in case default is made in the performance of any other covenant or agreement herein contained on the part of sublessee Vnotice and any such default shall continue for t-en(10),; days after thereof in writing given by sublessor, its agents'or attorney to subleases, or should subleases file any petition or institute any proceedings under The Bankruptcy.Act, either as such Act now exists or under any amendment thereof which may hereafter be enacted, or under any other Act or Acts,either as a bankrupt, insolvent, or petitioner, wherein or whereby sublessee STORE #1389 DIV. Washington,'D.C.. LOCATION York, Penn""—syivania DOCUMENT DATE AA�u__qqu� st 17119_85 Page 5 of 14 pgea (1389•Sublease/LS7) . _ - seeks'to be adjudicated a bankrupt or to be 'discharged from any or all of its debts, ,or to effect a plan of reorganization,' or seeks protection under the rehabilitation provisions of such Act, or for any other similar relief, or if any such petition or proceeding of the same or similar kind or character be filed or taken against sublessee, or if any receiver for all, or a 'substantial part of the business of sublessee be appointed by any court; and such petition or proceeding shall not be set aside or dismissed or the appointment of said receiver revoked within thirty. (30) •days of the_ ,filing of said petition or proceeding or the appointment of said receiver, or, if sublessee makes an assignment for the benefit of creditors or permits any committee. or representative of sublessee's creditors to oversee sublessee's business,- or should an attachment or execution be levied against sublessee's fixtures or merchandise in the leased premises and the same not be released within thirty (30) days after levy, " then, in any of such events, sublessor, at its option mays')p (a) cure' such default with the expenses incurred by sublessor-in " curing such defaults to be payable by sublessee to sublessor as Additional rent within thirty (30) days following the date. sublessor advises sublessee, in writing, of such expenses; and/or (b) cancel and terminate this sublease on the giving to sublessee. noticw in, writing, and/or (c) may re-enter upon the leased premises 'either with or without process of law, and without demand for possession thereof, and remove all .persons; goods, chattels and equipment therefrom, using such force as is necessary so to do, -repossess -and enjoy the leased premises without prejudice to any remedy or claim for arrears'of rent or breach of covenant or agreement. Such property may be removed and stored in a public warehouse or elsewhere at the cost of 'and - for the account of sublessee. Should sublessor decide to' re-enter, as herein provided or should it take possession. pursuant" to legal,proceedings or pursuant to- any•notice provided by law, it may either terminate this sublease or it shay, from t:Lme to time, without terminating this sublease, relet the leased premises or any 'part thereof for such term or terms and at such rental or rentals and upon such other terms and conditions as sublessor in its sole discretion deems advisable with the right to make alterations and repairs to the leased premises. Rentals rteceived by sublessor from such re letting shall'be applied: F,i.rst, to the payment of any indebtedness, other than rent,..due "reunder from sublessee to sublessor; second, to the payment of aray cost of such reletting and,to the payment of the cost of any a X terations or repairs to the leased premises; third, to the . payment of rent due and unpaid hereunder; and fourth, the . rft sidue, if any, shall be held by sublessor-and applied in the payment of future rent as same may become due and payable 4. STORE 91389 DIV. Washing6si, D.C. ' LOCATIUN York Penns van a ' DOCUMENT DATE AAu�ugg__u_s�t : 1985 Page 6 of 14 paw (2. 389 Sublease/LS7), hereunder. Should such rentals received from such rele' tting during any month be less than that agreed to be paid during that month by' sublessee •hereunder, then sublessee shall pay such deficiency to sublessor.. Such deficiency shall be'.caleulated and paid monthly. Sublessee shall also pay sublessor, as soon as ; ascertained, the costs and expenses incurred by'sublessor in such ' reletting or in- the making of such alterations and repairs.' •No such re-entry or taking possession of said leased premises by sublessor shall be construed as an election.on its part to terminate this sublease, unless a written notice of such. intention be given by sublessor or unless..the termination be 'by ', decree by.court of competent jurisdiction. Notwithstanding any such reletting or termination, sublessor may:, at any time. thereafter, elect to' terminate this sublease for'such previous breach. should sublessor at any time terminate this sublease for any.such breach in addition to any other remedy' it.may have, it•• may recover from sublessee'all damages it may incur for a teason .. of such breach including, the cost of recovering th4'. leased - premises, and including the excess, if any, of the amount of rent dnd charges equivalent to the rent reserved in this••sublease for. the remainder of the stated term over the then reasonable rental value of the leased premises for the remainder of the stated term. Sublessee agrees to pay all costs, attorney's fees and, expenses incurred by sublessor in enforcing any of'the terms,•:. provisions, covenants and agreements herein contained. No waiver , by sublessor of any breach of sublessee's covenants or agreements herein contained shall be construed-as a waiver of any subsequent breach of the same or of any other covenant or agreement hereby imposed upon sublessee and furthermore the acceptance of rental ,. or other payments hereunder by sublessor with knowledge of. a breach shall not be construed as s waiver of either that breach or any subsequent breach'of the same or any other covenant or* agreement hereby imposed'upon ,sublessee. The, rights, of 'sdblessor to terminate this sublease on account of the default of sublessee shall be governed by. the provisions of this Paragraph rather'than,. by the provisions of any applicable state or federal law. . 10. indemnification. insurance. Sublessee agrees to indemnify and. save sublessor harmless of and from any and all . liability, damage, expense, cause of action, suits, claims or Judgments•resulting from injury to person or property occurring t. on the leased premises and arising out of sublessees use•And occupancy or occurring on the shopping center common areas, it caused by the act or neglect of sublessee, subleases's agents; employees, invitees or guests. Sublessee further agrees that. sublessee will, at all times during the term of this sublease,' . , maintain and pay for comprehensive general liability insurance ' STORE #1389 DIV. Washington, D.C. LOCATION York, Pennsylvania DOCUMENT DATE August 1, 1985. Page 7 of 14 pages (1389 Sublease/LS7)• . affording protection to the master lessor and sublessor and sublessee, naming the master lessor and sublessor as "additional insureds" under the policy or policies, for a combined bodily injury and property damage limit of liability of not less than .any sum sublessor may be required to carry under the master . lease, or. Five Hundred Thousand and No/100 Dollars .($500,000.00) each occurrence, whichever is greater. Sublessee also agrees to maintain fire and extended coverage insurance covering sublessee's merchandise, fixtures and equipment in an amount _equal to not less than eighty percent (809) of the actual cash value thereof.- Sublessee further agrees to deliver to sublessor, prior. to commencement of the. term hereof, .a certificate'or , certificates of an insurance company or companies satisfactory to sublessor, evidencing such insurance and that master lessor and sublessor are named as additional insureds on the comprehensive general liability insurance policy or policies. 11. ' Notices. Any notice provided for herein shall be given. by registered or certified United States mail, - postage prepaid, Oddressed, if to sublessor, to it at the address to which the rental checks are mailed, and, if to sublessee, to sublessee at the leased premises. The person to whom and'the place to which notices are to be mailed may, be changed from time to time by either, party by written notice given to the other party.: 12. Assignment and subletting. Sublessee agrees that it will not assign or transfer this sublease or further sublet the whole or any part of the leased premises without first securing sublessor's written approval of the tenant or assignee or sublessee and the terms and provisions of such assignment or further subletting. Should sublessee either assign this sublease or.further sublet the leased premises, sublessee shall -nevertheless remain primarily liable to sublessor for the full payment of the rent and sublessees other obligations under this sublease. Y3. Compliance with laws. ' Sublessee agrees throughout the original ,term of this sublease or. any renewal thereof, to comply' with all laws, ordinances, orders, rules, regulations and requirements of all governmental authorities having jurisdiction of .the leased premises. ' 14. . Remedies cumulative. No remedy, herein conferred upon or reserved to sublessor or to sublessee is intended to be exclusive of any other remedy herein or by law,provided.,.but each shall be cumulative and shall be in addition to every. other .STORE #1389 ,DIV. Washington, D.C.* LOCATION -York k F Pennsylvania DOCUMENT DATE August 11 1985 Page 8 of 14 pages (1389 Sublease/LS7) remedy given hereunder or now or hereafter existing at 'law or in equity or by statute. .. 15. Holding over. If sublessee holds over or remains in possession of the leased premises after expiration of this sublease or after any sooner termination thereof, without any new " lease of said leased. premises being entered-..into' between the parties hereto, or any option herein contained being exercised by written notice, such holding over or continued possession -shall, if rent is paid by sublease*, and accepted by sublessor for or during any period of time subleases holds over or remains in ' possession, create a tenancy from month to month'at the last ' monthly rental-and upon the terms (other than length of term,or option for renewal) herein specified, which may at any time be terminated by either party by fifteen (15) days' written notice given to the other party. 16. Taxes. Sublessee further agrees to pay, prior to'' ` delinquency, any and all taxes and assessments that ,may be Zesessed or levied on or against any of sublessee's personal property, fixturesp or equipment placed-on ar .in the leased premises,• and all other expenses incidental to subleases's use , .., : thereof and the operation of* sublessee's business therein. Sublessor agrees to pay-to the master lessor all taxes and ' assessments upon the leased premises and common.areas that are required of, it by-the master lease, which are payable during the . master lease term or any renewal thereof. Sublessee, agrees to reimburse sublessor, as additional rent, an amount equal to all property taxes and assessments so paid by sublessor during the- term hereof. Sublessee shall so reimburse sublessor within thirty (30) days after receipt of satisfactory evidence of sublessor's payment of such taxes 'and assessments and the amount due from sublessee.. Sublessee shall not be obligated to pay'any portion of any penalty for delinquent payment' by sublessor of such taxes and assessments., Taxes assessed during the term but• ' payable in whole or in installments after the termination of this sublease, and assessments which are covered by bond, shall be adjusted and proiated.and sublessor shall pay the prorated share thereof for the period subsequent to- the term, and sublessee shall pay' sublessor for the prorated share thereof for the term of this sublease: Sublessee further agrees to pay to sublessor an amount equal to•any excise, privilege, sales or other tax (excluding income tax) levied at any time during the term hereof on the rentals or on any other sums payable by sublessee to . sublessor under the terms of this.'sublease (including but not limited to reimbursements of taxes and assessments, insurance STORE #1389 DIV. Washimtonn,_ D.C., LOCATION York, Pennsylvania DOCUMENT DATE August l-,—m5 Page 9 of l4 pages . (1389 SubleaselLS7) . a a 3w► - _ . premiums,, utility charges and common area maintenance costs, if -any) or on sublessor's receipt of 'said rental or other sums.. 17. Common area maintenance charges. Sublessor agrees to pay to the master lessor all the common area maintenance,chargea , that are required of it by the master lease, which are payable during the master lease term or any renewal thereof. Sublessee agrees to reimburse sublessor, as additional rent, an amount equal to all common area charges so paid by sublessor during the term hereof.. Sublessee shall so reimburse sublessor within thirty (30) 'days after receipt of satisfactory evidence of sublessor's payment of such common area charges and the amount due from sublessee. Sublessor agrees not to change• the i provisions.as stated-in paragraph twenty-seven of the master lease,. . Ss. "Late Charge. Sublessee hereby acknowledges that late payment by sublessee to sublessor of rent and other sums due hereunder will cause sublessor to incur costs not contemplated by this sublease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but ara not limited 19, processing and accounting charges and late charges which may F be imposed on sublessor by the terms of the master lease referred to in paragraph 4 above and/or any other agreements which may involve the leased premises.' Accordingly, if any installments of ` rent or other sums due from sublessee shall .not be received by sublessor or sublessor's designee within ten (10) days after such amount shall be due, sublessee shall pay to sublessor a late charge equal to ten percent (108) of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the-costs sublessor will incur by. reason- of late payment by sublessee.' Acceptance of such late charge by sublessor shall in no event constitute a waiver of sublessee's default with respect to such overdue amount, nor prevent_ sublessor from exercising any of the other rights and remedies granted hereunder. 14. Rent Free Period. Sublessor hereby grants .to sublessee a rent free period for a period of FORTY-FIVE (45) days from the date of delivery of possession to sublessee, for the purpose of restocking and preparing for opening to the public of the leased_ ' premises. Should the restocking and other preparation for opening to the public be completed in less than FORTY-FIVE (45) days, the rent free period shall expire on the day preceding the date when the premises are open for business to the general public. 20. . Options for Renewal. Sublessee at its option may' extend this lease for two (2) separate and additional periods,for STORE #1384 DIV.- Washington, D.C. LOCATION York, Pennsylvania DOCUMENT DATE August 1 1985 Page 10 of 14 pages (1369 Sublease/LS7) the dates indicated below on the same terms and conditions hereof except rent by written notice sent by registered or certified mail to sublessor at-least one hundred eighty (180) days before the expiration of the original term or option term then in effect. At the expiration of'the original term' and the beginning date of each of the option periods, the fixed minimum monthly rental amount specified in subparagraph 2(a) hereof shall be the ` following amounts: First Options Aug. 1, 1997 to July 3i, 2001 -, $12,833:34/month Second Options Aug. I, 2001 to July 31,. 2006.- $14,750.00/month 21. Security Deposit. Contemporaneous with subleases's execution and delivery of this sublease to sublessor, sublessee shall also deliver a security deposit in the amount of ONE . THOUSAND AND N01100 DOLLARS ($1,000.00) in cash or by cert4fied check to be used as a security deposit to secure sublessee's performance and observance of the terms, conditions, and Arovisions of this sublease'. In the event of subleases's 3 default, sublessor.may use said deposit for the payment of delinquent rent or for any other sum due sublessor by sublessee or in reimbursement for any sum which sublessor may expend by reason of any default of sublessee. in the alternative, sublessor may declare the whole of said deposit forfeited,as liquidated damages. if sublessee faithfully performs its obligation under this sublease, then said security deposit shall be returned by sublessor to-'-sublessee one (1) year after date of possession. . 22. Purchase of Equipment. In addition to the leasing of the leased premises, sublessor hereby agrees .to sell and sublessee• hereby agrees to purchase that portion of the equipment . on the leased premises set forth in Exhibit "D" hereof. In' r addition to the rent for''the leased-premises set forth in Paragraph Second above, sublessee agrees to pay to lessor for the . equipment specified in Exhibit "D" hereof the total •amount of ONE HUNDRED SEVENTY FIVE THOUSAND AND'NO/100-DOLLARS ($175,000.00). " 1. A non-refunAahtg deposit of TEN THOUSAND AND NO 1100 DOLLARS ($10,000.00) payable by cash or certified check payable to Safeway Stores, Incorporated, a Maryland corporation is to be paid to -sublessor upon execution of the sublease by sublessee, the balance to-be paid upon delivery of possession of the subleased premises to sublessee by certified check. STORE 41389 DIV. Washin�ton,�D.C. LOCATION .York�Pen_n,.sylvH fa DOCUMENT ATD E Au ust 1 1985 Page 11 of 14 pa 'ds--'�""` (1389 Sublease/LS7).• 2. it is the understanding of the parties that the equipment listed attached as Exhibit "D" is a preliminary list and that the $175,000.00 purchase price is for all of the. equipment actually located in the store at the present time with . the exception of Safeway signs and datapoint equipment. It is . . understood that there may be equipment on the list, not physically located in the store. 23. Sublessee has inspected the property described in Exhibit "D" hereof and acknowledges that sublessor's only representation and/or warranty with respect to said property is that it shall be in operational order at the time possession of the leased premises is delivered to sublessee. 'Sublessor warrants that all the property being sold hereunder is free and clear of all encumbrances except current taxes, not yet delinquent. Current personal property taxes payable on the property to be sold by sublessor to.sublessee hereunder .shall be prorated as of the date sublessee takes possession of the.premises. If the tax rate for the current tax year is not established by the date, of closing, the proration shall be made on the basis of the rate in effect for the last preceding tax year. Sublessee shall assume and pay and hold sublessor harmless from any and all sales and/or taxes which-may be incurred as a result of this. transaction. Sublessee shall pay. all applicable sales or use taxes on the sale of the items referred to above. Delet paragraph 24 'from this agreement. 24.=-Sublesser-#.e-the- t-s--ii ' ehambersbaxg-and- %V1!'h't�_ sub lessor-makes-a-dstesminattea-to- eperat4on-v0& tkese-bwe-steres-as-Safeway-grocery-aagernra%"ketsand,tZtiher determines-that-these-two-stores-aiii-centinue-to-op_=a re MT, grocery-supermarkets7-sublessor-agreaw ttr tha"fallopinir. A w--At-tke-time-&-de e i s i e n-4.S-mach-to-9406+x-4m►e-0r-both-of- tlsese=eteree�-anb3essee-xii3-bQ=pr0vided-a-•fitst-•r#q#t�-of-�rf#e�- to-subtease-one-or-both-of-these-propezties:--Am pectod-of-ten-- day a-will-be-ai&owed-few-sublessee-to-revie%-tile- ,roperties..to. determine-the-of fer-he-wishes-to-make-apecifpiag-x�ii the-trims and-conditions-of-the-offer: -Bs--Sttblesser-will,-prodiete-to-sab3.rssrr-e-iiabir�g-arf•- ; equipments-kkat-will-be-availeb-le-its-the-property-e itd-infVr.matCion STORE #1389 DIV. Washington, D.C. LOCATION York, Penns�Tvan�ia— DOCUMENT DATE August—1,_1985 Page 12 of 14 page-- . (1389 Sublease/LS71 n. on-the-teaw-o€-the-wastei-i ease-afrd-tom Vpt-1Vn9-ender--Liver intster ,teaser • � C.--Wtthtn-ten-daye-after-m.•eipt-�aufrl�rsa+ee'a-trfte�r.- aubtnnaos-wits-AOtt€1►•se�►+tnssee-df-the-offer-3•a-nccept�i,`-,-�, if-so.,-proceed-to-natnr-into..a-s�a�bi,ease-an-the-psopes�ty:-- ; The-above-right-o€-o€€ea-to-eewd3ttened-s>n-tkris-subs-rasr twiMT i,n' full•forge-sad-o€€nst-without-aefaer2.t at the LAM .:he %ijV t_tv^- offer-ta-vadoatakew.-- Delete paragraph 25 ` -3t5:--Sublessee-has-expressed- eexn-t�iat-aalri+�dasar-map-#xaver obikgatiens-to-employee s-under-various- wtt'r . fall-execution-of-this-sublease-by-the-paax ties-thereto;-vabi%%1svW - ta-provided-ten-{lgf-days-in-which-to-satza-frhlmsrelf-that*tftw ry are-no-anion-obligations-of-sublessor-thavWOUTIrattTUI•tD sublessee-that-he-would-find-ob j ectlonabio,--SWAeaeee-to-4jaefrted a-ten-{le}-day-period-to-investigate-with-the-eeeperat-Lon of-e-- Safeway-Employee-these-union-obftgations-.--11-1 1during-this--then- Jay-perksd-iublessee-desires-to-cancet-this-sublease-because-tf-a sybtesaor-IlA#en-ebl#gat#enf-he-may-do-ae-by-providing-to-- - aableasor-nattf#cation•by-sort[€led-mail-xetarn-receipt that-i�e- ia-oaAOOliing-th#a-svbteases=-.l€-the-subienae-ia-eanceiied-by . sublessee-for-this-reason;-ail-deposits-paid-by-BilMsee- rill-be- refunded-promptly-by-sub tessoa-and-this-agreement-will-be-of-ncr- force-or-offact;-^ 5•. Sublessor agrees to pay to Richard Nagle Real Estate (Richard Nagle Real Estate 508/Bob Yost Inc. (Coldwell Banker) 50%) a real estate commission in the amount of sik.percent (60 • imum rent paid by sublessee for the per year of the fixed min first six years of this sublease. The real estate commission will be paid once a year upon submission by.itichard Nagle Real Estate of a statement for commission earned, which statement is . to be submitted on or about 1 June of each year during the six year period. If rent is not collected fe-in the sublessee -f a real estate commission. is not payable to agent. 27. Document execution and change. It is understood and agreed that until this sublease is fully executed and delivered ;. by both sublessee and by the authorized corporate officers Olt sublessor, there is not and shall not be an agreement of any kind. between the parties hereto upon which any commitment, -undertaking . or obligation can be founded. It is further agreed that this sublease contains the entire agreement between, the parties hereto . STORE #1389 DIY. Washington: D.C. , LOCATION York, Penns�vania DOCUMENT DATT AA st~�_ S Page 13 of 1 (1399 Sublease/LS71 and that in executing this sublease, sublessee' hoes not rely upon- any'statement, promise, or representation 'not'herein expressedt• ' that this sublease once executed and delivered-shall not be.'. . modified,. changed or altered in any respect except by a writing,... . executed and delivered in the same manner as required for this sublease; that all covenants,-agreements and conditions shall apply to and bind and inure to the benefit of the successors -, and/or assigns of sublessor and the heirs, personal ' representatives, the' successors and/or assigns of -sublessee, if assignment'is consented to by sublessor; that herein the singular . includes the plural and one gender includes the other gender. . 28. Paragraph headings. The paragraph..heading$ of this sublease are inserted only for reference and in'no way define,•' limit, or describe the scope or intent of this sublease nor affect its terms or.provisions. 1* IN WITNESS WHEREOF, the parties hereto have-executed this .sublease as of the day and year first above written. : SAFEWAY STORES, INCORPORATED (a Maryland corporation)� CORES. 1NC. 8y i ^— -- lc� pltq Its Assistant Vice President . (Corpora A eal), Its Assistant Secr ry (Sublessor) NELLS'•INCORPORATED (a Pennsylvania corporation) 00 jti` �,,,14 f;: AN wJ.tT% By t art/,/lt �ir /A t t r w•.i ' � is �!e„ E,rlf" + '! •�;• �.� .��at ' A � .. �II�M�. .. •'171:!1���Y Its SK jt'/'GAt. (Sublessee) STORE #1389 DIV. Washin��to!_� D.C. LOCATION York, Penns vane DOCUMENT DATE August 14 1985 Page Id of 14 yagab 113 9 9.Subleases/LS7). i FIRST SU'BLEAS'E MODMCA77ON AGBESMI�NT ORIGINAL 3 TM FIIM SUBLEASE MODIFICATION AGREMO NT("Agremcne5 is made and 4 eatded into this 441 '. day of Alga mAir . 1996, by and between PROPERTY. s DEVELOPMENT ASSOCIATES„ a California general partnembip. ('Landlord"), and• a ASSOCIATED WHOLESAI ERS,INC..a Pennsylvania corpomdon Menial. 7 RECITALS a This Aigrnmaemt is made with reference to the following facts and objectives: . 9 . ` A Safeway Storm„ beexpont4 a Maryland corporation CSaSewayll and Ners 10 Incorporated,a Pannsylwnia corporation(""NeIrn entered into a sublease datW August 1, 1985 21 (the•Subleasel for the real property(the"Premises")commonly lraown as.7706 Spring Read,. 13 CarWia„Penusylvau*and mare particularly described in the Sublease. Landlord is the successor 13 to Safeway as 9*1e5 sot under the Sublease pursuant to an Assignment of Lease dated 14 October 28, 1988, a copy of which is attached harm as EghlbiLA. Tenant is the successor to is Nelh as sublessee under the Sublease 1a B. Landlord and Tama have agreed to modify the Sublease to expand the Premises, 17 emend the term,and amend the Went,all as sat forth below. 1s NOW,TORE,in considera oat of the foregoing facts and for good and valuable . i9 consideration,tha receipt and adequacy of which are hereby admowledged,Landlord and Tama 20 hereby amend and modify the Sublease as follows 21 L Expansion of Premism 22 1.1. Landlord shalt construct an addition to the Premises of approximately 7,778 square 23 feet (the "Expansion Area") as shown on the site plan attached hereto as Fahiltit_8. and 24 incorporated by reference. Upon full execution of this Agreement,Landlord will cam plans and 2s specifications for the Facpansion Area and a new mansard roof for the existing Premises to be 26 prepared (the "Plans*j Tenant shall either approm disapprove, or melee recommendation: for 27 rim* wtddtt *M'1(90)-days of receipt thered Failure to approffm disapprove, or make 2s recommendation for change within said thirty(30)day period shall aonsdtste approval of the Plans as 29- subnu#e& Any disapproval or reconmsedatim for diange shall specify with particularity the reason 30 thardw Upon submission of airy disapproval or recommend su m for dmg% the parties shall 31 mutually.consult in good faith to establish appuayed Plans for the proposed work No material 32 deviation shalt be made Am the approved Plans without the pmt written approval of Tenant. 33 1.2. The construction costs for the Expansion Area Ad include the following: h the 34 final construction,contract price for the Expansion Area;(u) architectural and engineering fees; 35 (lit)permits and development feces;and fn+)construction period interest S 10%per anrAWL After 36 completion of the Plans,Landlord will bid out the work to at least thine reputable contractors and 37 upon receipt of the bid prices will provide them to Tenant together with the cost of the other 38 hams that make up construcdon cons for the Expansion Ares, . 39 t.3. In the evert that this construction costs fior;the Expansion Area exceed$522,600, 40 plus the cost of the new roof(the 'Upset Price") (the difference between the two being the 41 "Excess Cost"),Tenant shell have the following options: n pay.to Ford the Excess Cost in 42 cash upon the New Tern Commencement Date(as defined below);(u)terminate this Agreement; 43 or(M)have the annual rent set forth in ParaBth 2h 3 W4)w increased by 14.4%of the Excess Coat. 44 Tesnmt shalt make its election by written notice within to(10)days after delivery by Landlord.,of 45 the construcion costs. In the event the construction costs for the Expansion Ares mcceed . 415 S650,000 and Team decs to have the rent increased as provided in clause (w) above, then 47 Landlord shall have the right to terminate this Agreement upon written notice to Tenant. In the 48 event this Agreement is terminated a provided above,the Sublease will coutinus in M force and 49 effect and unchanged. If the cost of construction of the Expansion Area is lass than the Upset CiW.SSVTM77W77a6LMA W Fa tyNa W773641 io n&% CarY+ie,PA . i Price then the access amount shall be applied toward the cost°af the new roof for the Premises 2 pursuant to Pamaranh 1.6 below. 3. 1.4. The New Tam Cammenc anent Date shall be the date Landlord delivers ' 4 possession of the Expansion Area to Tenant with the Construction of the Expansion Area 3 'substantially complete. 6 I.S. Effective on the New Term Commencement Date the term "leawW premises" as 7 used in the Sublease shall Include the Expansion Area. s 1.6. In connection with the Construction of the Expansion Area„Landlord shall re-roof 9 the Premises with a new rubbat roof with a 20 year manufacturers warranty and a 10 year to installation warranty. The new roof will be installed prior to the Now Term Commencement it Date. 12 2. Sublease Term. 13 pig It of the Sublease is amended to provide that the tarn of the Sublease shall be 14 extended for a period of fifteen(1 S)years following the New Tam Commencement Data is 3. Rent. 16 Paraaranh 2(g)of the Sublease is amended to provide that_,commencing on the New Tam 17 Commencement Date,the monthly rent shall be as follows: '�,��Crtoattt 7rfTeinxt�oltoWangNeatir ; w lSitYotnrDaicapeAtxfate `z a 4 r .. s 60 40,292.00 61 120 521414.00 121 S231769.00 Ist Extended T $26,622.00 Gz l 1,i4' 2nd Extend arm - S2981600 3rd Perm S3 .00 is 19 Minimum rent for any partial calendar month immediately following the New Terns 2o Commencement Date and/or prior to the expiration(or sooner termination)of the Sublease Term 21 and immediately prior to and following any change in minimum rem shall be prorated based on a 22 thirty(30)-day month. 23 4. Boas Payment, 24 PanW=h 2lbl is amended by deleting the first two sentences in the first grammatical 2s paragraph thereof and substituting the foll owing: 26 'Tenant shall pay to Landlord a possible bonus papine6t,if any, in an amount by 27 which one and one-halfpercent(1-i/Wo)of gross ales made by Tenant from the 28 leased premises for each calendar year exceeds the minimum rent paid by Tenant 29 for such calendar year." 11., ` 3o S. Options for Renewal. 31 PAmgmph 20 of the Sublease is amended to provide that the iciNant /shall have two(2)five 32 (*year and one(1)four(4)year,eleven(I1)month,twalty-nine(29)day options to renew the 33 Sublease following the fifteen year tam set forth in PamgMph 2 above, at a minimum monthly 34 rent as set forth in PjazmRh 3 above.. 1 Poaft,j worwe-. . 33. 6 Stma anal Btoor Repair. 36 Prior to the New Term Commencement Date,Landlord will repair the door in the existing 37 Premises where it has failed Tenant shall allow Landlord access to the Prormses and will remove C.-MMUM773A77861AMDOC Fadlity Net.E9 77U41 10/16/96 PW.2 0r4 Wilk.PA i ita buret and equipment Som the area wbare the Soar has MW so that Landlord may`carry out repairs. Landlord wM abo pour a new level floor ovat the rhea. 3 Pao Rata sbare. 4. Team agreaa that ai of die Now Terns Caa=W=Mw Data its.pro'.tats share of S common area ogmx at ad:ad soft tam T3 the total of arch wq=M for tbs s Shopping Canw. ! . 7 >L ROOMai.tesaaca s Zng=hl of der Sublease is bwft amended to provide that Mowinat the ro rooft of f the Premises.Tome aba4 bave she re�poamrlri q for ma o%r+apan and rapiacenwent(wben i4 necomy)o[tiwi roddtba 1t L 1Radfkadew 1Naedt Lease, u luept as berein modeled the Sublease shah re minim lull force and effect and is bereby ` to ratified and of lrmmed. Laodford has previously acq uirW fee simple tide,to.the Promises. The 14 parties bereby agree due as a rms*of Landlord's acquisition of fee simple tide to dw Premises, 1s- the Sublease is now a dirw lesse between Landlord and Twat and that the Master Losses has is merged with the he simple tide of the Premises. The term sad candndces of the Sublease shat! is ischAe any provisions of IM Master Lease that are l moorpoa Gel 4w mn, is i4 moors and Assigns. . it Each and all of the covenants,terms,agrcements$4 9WWdow of this Apeerneat shall 3o eumemd to and bind and isms to the beneft of the sucessom sndtor&:signs of slid psrties bwatco 7..' 31 Notwitbstandmg amytbiag to the cormrary herein or in the Sublessao Landlord hereby consents-to 33 she Anther sublaaag of the Premiers to Ners. In no event shill any wch Anther subletting' 3s ralm Tom of its oblipoow beramder or under the Sublease, nor sbaal such consent be . s4 deemed a waiver of any dLamdiord's right:under the Subleast, iadudurg the A&to approve is my assignment or Su^ther subletting by Tenant. x IN WITNESS WBEREOP, the pardat hereto ".'aece-ded thin AFtemcm on the 37 rmpeativ4 dates sat opposim dw sipumves'bdow,but thin Agmeme t on behalf of arch party 3s shalt be deemed to have ban dated as of the date Am above wrines. ' � .. ..•eta:•�' d 30 LAML,OBDt 31 33 PROPERTY DEVELOPMENT ASSOCIATES. ' 33 a Caubta is general p vmswp . 34 3S By P !we Realty Assodateso J.P. 3a r aDelaware Am bed prtma'**. 37 its Mem1*11 Partner " 39 By M&T Resouius,Ltd; 44 -a Delaware corporation' :► 41' its Gen"Penner. 4s .44 EW c November 4 .19% By l�cL...ar•+w: 120..,_ K David M. Ranus 47 44ra•m*+r+•�•4 As Its Y1ce President 4! caiscir►ietnrrsmitlaatatti t 1...: i' 'lliw ML��dt bas 3 f �PA Ayr 3�t"t . ' 1 TENANT! 3 ASSOCIATED WHOLESALERS,INC., a Penn sylvania corporation 7-. Date: 1996 By_ a - 9 10 �Ory�l�MM an.q 11 � 12 • f C.-VMTM77t6177ZaA ADp= 1416/96 Facility Na W778&01 Paaa 0!4. Cartitk,PA Facility No.89.778"1 Carlisle,PCMV Mania ASSIGNMENT OF LEASE [SEE A'7*( ) EXHIBIT A . `. j I I i I' S° t�l3.2 U _. A Zc1-1't-15Y1 2%Z FIRST AMERICAN TITLE INSURANCE CO. TWO PENN CENTER PLAZA,SUITE 1910 PHILADELPNIA,PA 19102 After recording return to: Pacific Realty Associates,L.P. 1011600`.112(10 Attn: General Counsel(N89-7786) 15350 S.W.Sequoia Parkway,Ste.300 C) Portland,OR 97224 o c o zroro ,n rn C-j i Until a change l requested all tax statements ? 7 shall be sent to the following address: c m Paci fic Realty Associates,L.P. 3 c C.H Attn: General Counsel(N89-7786) 15350 S.W.Sequoia Parkway,Ste.300 ►-' —=i rmr m Portland,OR 97224 b a 7111 space provided for recorder's use. DEED PROPERTY DEVELOPMENT ASSOCIATES,a California general partnership, Grantor,grants,sells and conveys to SAFEWAY INC.,a Delaware corporation,Grantee,the following described real property in the County of Cumberland,Commonwealth of Pennsylvania,to wit: See Exhibit A attached hereto and made a part hereof. The conveyance by Grantor to Grantee pursuant to this Deed is subject to: (i)a lien securing payment of real estate taxes and assessments;(ii)applicable zoning and use laws, ordinances,rules and regulations of and municipality,township,county,state or other governmental agency or authority restricting or regulating the use,occupancy or enjoyment of the Property;(iii)all matters that would be disclosed by a physical inspection or survey of the Property or that are actually known to Grantee;(iv)all covenants,conditions,easements, restrictions,liens,encumbrances and other exceptions of record;and(v)interests of tenants in possession. And Grantor hereby covenants and warrants to Grantee and Grantee's heirs,successors and assigns,that Grantor is lawfully seized in fee simple of the above-described Property,free from all encumbrances by,through or under Grantor,or any person claiming under Grantor, subject to the.matters set forth above. Except as set forth above,Grantor makes no warranty, express or implied,as to title to the above-described property. Pagel- Deed Facility No.89-7786 Carlisle,PA 70D49 007 C00iirk Pa PDA MWA= 5uux 224' -a- 504 DATED Ws JO�day of June,2000.(COret k— 1,P-/U") GRANTOR: PROPERTY DEVELOPMENT ASSOCIATES a California general partnership By Pacific Resources Associates LLC, a Delaware limited liability company, its General Partner ByQa..� w DaVI b.namus trypcd ayrtmal mnc) Its__ V P STATE OF OREGON ) �• � County of Washington )ss.) This instrument was acknowledged before me on this f�J`day of ) „� 2000 by David W.RamN� 1/'P of Pacific Resources Associates LLC,a Delaware limited— liability company,general partner of Property Development Associates,a California general partnership,to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. 0FnCNt SEXL! TEMP L amt1LE NorMrruauc-Mtroa otary Publi r regon EOM.Y y commission expires: y4*,TC65 ,WPAC75S: 1536-6 S. 14/. .Sc a vo;:� f7./.r-6c�,.wc�y. aim 7.Z7,� U $-g.2- Deed Facility No.89-7786 Carlisle,PA (OUX '224 Pali!: 505 wag stn c"'L h FDA uadrAM EXHIBIT A "PREMISES A" ALL that certain tract of land with the improvements thereon erected,situate in North Middleton township,Curriberland County,Pennsylvania,bounded and described pursuant to a survey by Thomas A.Neff Registered Surveyor,on August 6,1963,as follows,to wit; BEGINNING at a spike in the center of Pennsylvania Highway Route No.34 said spike being located three hundred three and fifty-five hundredths(303.55)feet in an Easterly direction along the center of said Highway Route No.34,from the caster of the intersection of said road and Township Road No.504;thence by land of Paul Albert Cohick and Virginia Cobick,his wife, North nineteen degrees fifty minutes West,(N 19 50 W),one hundred seven(107.00)feet to an iron pipe;thence by same,North seventy degrees ten minutes East,(N 70 10 E),three(3.00)feet to an iron pipe;thence by the same North nincteen degrees fifty minutes West,(N 19 50 W),one hundred three and thirty-six hundredths(103.36)feet to an iron pipe;thence by land of Annie C. Brindle,South eighty-four degrees zero minutes East,(S 84 00 E),one hundred thirty-one and fifty eight hundredths(131.58)feet to an iron pipe;thence by the same,South twenty-one degrees fifty-eight minutes East,(S 2158 E),one hundred forty-two and eighty-one hundredths (142.81)feet to a spike in the center of Pennsylvania highway Route No.34,aforesaid;thence by the center of said Road;South sixty-five degrees thirty-one minutes West,(S 65 31 W),one hundred twenty-seven and twenty-one(127.21)feet to the place of BEGINNING. CONTAINING.496 Acre and being improved with a brick and frame dwelling house. PREMISES ALL that certain tract of land situate in the Township of North Middleton,County of Cumberland and Commonwealth of Pennsylvania,bounded and described in accordance with a survey of D.P.Raf?ensperger Associates,dated August 26,1974,as follows,to wit; BEGINNING at a point in the centerline of State Highway.Route No.34,known as Spring Road,at lands of Robert Bowen,said point being North sixty-five degrees fifty-eight minutes East,(N 65 58 E),four hundred thirty-three and four-tenths(433.4)feat from the centerline of Sterretts Gap Avenue;thence along lands of Robert Bowen,North twenty-one degrees fifty-eight minutes West,(N 2158 W),a distance of one hundred forty-three and six-tenths(143.06)feet to a point;thence along the same and lands of Richard Swartz,North eighty-four degrees no minutes West,(N 84 00 W),a distance of two hundred twenty(220.00)feet to a point in Stereos Gap Avenue;thence by a line in Sterretts Gap Avenue,North eleven degrees thirty minutes East, (N 11 30 E),a distance of seventy and twelve-hundredths(70.12)feet to a point thence by same North no degrees thirty-eight minutes West,(N 00 38 W),a distance of eighty-eight and ninety- five hundredths(88.95)fat to a point;thence by same North nine degrees twenty minutes thirty seconds West,(N 09 20 30 W),a distance of one hundred two and thirty-five hundredths (102.35)feet to a point at lands of P.O.McClintock;thence along same and lands of Merle P. Allshouse and R.C.Homnick North eighty-seven degrees four minutes East,(N 87 04 E),a distance of seven hundred thirty-five and twenty-five hundredths(735.25)feet to a point in the Page 3- Deed Facility No.89-7786 Carlisle,PA 30049 007 Cwfi*N PDA OKdrAce COOK 224 mf 5C6 center line of State Highway Route 0 34,known as Spring Rout;thence along said centerline the following courses;South twenty-nine degrees thirty-seven minutes West,(S 29 37 W),a distance of fifty-four and seventy-two hundredths(54.72)feet to a point;South thirty-two degrees twenty nine minutes West,(S 32 29 W),a distance of one hundred(100.00)fact to a point;South thirty- seven degrees thirty-four minutes thirty seconds West,(S 37 34 30 W),a distance of one hundred(100.00)feet to a point;South forty-four degrees four minutes West,(S 44 04 W),a distance of one hundred(100.00)feet to it point;South fifty degrees thirty-two minutes West,(S 50 32 W),a distance of one hundred(100)feet to a point;South fifty-five degrees forty-two minutes West,(S 55 42 W),a distance of one hundred feet(100)to a point;South sixty degrees fifty-one minutes West,(S 60 51 W),a distance of one hundred(100)feet to the place of BEGINNING. CONTAINING 4.541 acres,more or less. Stan of Pennovenfe Co+:ntY of Cumberinnd 1 6trordsd in the office for the raoordlnp of t)eeds e . and fsa��,, umborinnd County.P�� in Boo --Vol. pace y noes mY hand r': RP1 aYf s +e.- PA this_ q� ``E.ra.!7!xi" .�'�=LR�:+',li.�r.y r�.tr Gin°o O�lJl cAq�aV r:, as Page 4- Deed Facility No.89-7786 Carlisle,PA 4pOK 224 PACE 507 M%9eorCwWkP.PDADO AN RECORDEEN USE ONLY eee.tn aMMl' ° « Ir� REALTY TRANSF oa ER TAX oeu,nm4MTH OF MOMEVAHM, STATEMENT OF VALUE y otrAltartwt or ttmtru etmeAU M Me1VblrAl IAR6 . � OIK.7learee twenww►�vtteoew Spa Ratrarsa for Instructions wMa 1 the Irdl wlueloottI..,r ott ir nw e*forth l e 1.8 R)vrMn the t Iod C«opM9 each eetHon etch Rle Y daplkote wNh Hoarder of Do«b « of Vain Y nst required if tin Man(«Y wheEy oaerpt tram tots Y trWrN mn.ldorotloa,w by er a tat dlity"ve b daYted.A boned am 111 foorRr r.YNo�ir(71ow.c atlliM wroront N zero we,Y needed anxh addlMend.Mel r. A CORRESPONDENT-All inquiries ma M directed to the lolwin e ! n: Nomt Ar.ocad. 215 568-0212 ]TIPSY AKMCAA THE TASORAECE COff al PA 19102 Zip ce" TO PENN C�pi OA. SMTE 1910 1THIT A ele B TRANSFER DATA t S T 350 r sr W. VvjAr Aakw p San 153Sa S.W. Sira.toi� �telcw 3no oLT,lsV 0 o�rla.lo o� a�ZZ¢- C PROPERTY LOCATION awe e TMU a Y LAkWS).t3 C�..t,crua.ro D VALUATION DATA e 3t a72 lfa. + 8' . 3 oM7- Id- ,,�, . aeer f/39rZleG.02 /oTAL x Z !Q? Ott E E EMPTION DATA I.. m-v ercweep InrrW .oyo 2.Check Apprepddi Doe Below for Eunrplleo Clawed ❑VAN or tAertato trccertYn ,r r ❑ Transfer b Indumld D"-pa m l Ag.ncy. ❑Tram«to o trwl.IAMoch complete copy of trust agnemeet idoellfying all busdfdarlm.) ❑Trani«between principal and agent.(Attach mmplde copy of ogencyldraw party agreement.) ❑Tronfen to the Coetnrmv"M,dr United Stater and ImtromontuUNer by g1h,dedirotbn,cor,denmoll-A Or In Ueu of coed"ncMon. [if condemnoden or in Rw of cendeam-11e4,anoch Dopy of...."Aloe.) ❑Transfer from ro«tpeoor to a In"or OF a morfpope in ddouh.Mortgage Rack Number .page Number ' *'Coned"or confirmatory deed.(Anoch complete ropy of the prior deed being wrroeod or confirmed.) ❑Statutory mrperate 000rlidatiae,merger or"Ion.(Attach copy OF aMdotJ ❑ Ot►er(pleura..glob«terWIon claimed,Of other then Reed ob—) "nlklg eelen that I have eoandnod tbb fMtemeat.imcludkq ea«npo Vfas krfonnatloe.and to dr bust of my knowledge ad e«mplde• « M 3n S O/ERLY OR ATTACH UCABLE DOCUMENTATION MAY RESULT iN INE RECORDER'S REFUSAL 1 J � . ,- ly. 1? RRST AMERICAN TITLE INSURANCE CO. TWO PENN CENTER PLA?A SUITE 1910 PHILADELPHIA.PA 19102 RECORDING REQUESTED BY: AND WHEN RECORDED RETURN TO: o Pacific Realty Associates,LP 4 r„a c, Attn: General Counsel#89-7786 z -o rn 15350 S.W.Sequoia Pkwy.,Suite 300 C.11 Portland,Oregon 97224 o' o'^ N F" cvcmi m n My -v ?p s ASSIGNMENT OF LEASE�Ar�NhD TENANT LEASE THIS ASSIGNMENT is made as of this O day of June,2000,between PROPERTY DEVELOPMENT ASSOCIATES, a Callfomia general partnership ("Assignor"), and SAFEWAY INC.,a Delaware corporation("Assignee"). RECITALS A. Assignor owns the fee interest in those certain premises described on Exhibit A attached hereto(the"Premises"). B. The Promises are leased pursuant to a master lease (the 'case") and a sublease ('Tenant Lease'l described in Exhibit B attached hereto. Assignor holds all right, title and interest in and to the landlord's and tenant's interest under the Lease and the landlord's interest under the Tenant Lease. C. Assignee is a partner in Assignor and Assignor has agreed to assign the Lease and Tenant Lease to Assignee,and Assignee has agreed to accept an assignment of the Lease and Tenant Lem as a distribution from the partnership. NOW.THEREFORE,for valuable consideration,the receipt and adequacy of which are hereby acknowledged,and in consideration of the premises and the mutual covenants,conditions and agreements contained herein,the parties agree as follows: 1. Assignment: Assignor hereby transfers,sets over and assigns to Assignee all right,title and interest of Assignor in and to the Lease and Tenant Lease,TO HAVE AND TO HOLD the same to Page 1—Assignment of Lease and Tenant Lease Facility No.89-7786 Carlisle,PA 30019 017 Culide h PDA AOUAx B'>JK G48 1-* 103 r Assignee, its successors and assigns forever. SUBJECT. HOWEVER, to each and every provision of the Lease and Tenant Lease and as hereinafter provided. 2. Acceptance of Assignment: Assignee accepts the within assignment and agrees to perform and discharge all of the covenants,terms,conditions and provisions to be kept,observed and performed by Assignor as landlord and tenant under the Lease and as landlord under the Tenant Lem from and after the Effective Date as defined in Paragraph 3 below. Nothing herein shall obligate Assignee to assume or pay eny rent, fee, charge, expense or adjustment attributable to any obligations of Assignor under the Lease or Tenant Lease which "I have arisen or accrued prior to the Effective Date. 3. Effective Date: This Assignment shall be effective June�?,2000(the"Effective Date-). 4. Counterparts: This Assignment may be executed in one or more counterparts by the parties hereto. All counterparts shall be constnled together and shall constitute one agreement. S. Binding Effect: This Assignment shall be binding on and inure to the benefit of the parties and their respective heirs,successors and sasigns. Page 2—Assignment of Lease and Tenant Lease Facility No.89-7786 Carlisk,PA ~; 3M9 012 CalbM h PDA AoLlAoe - BOOK 648 PACE 6 � 1 i IN W[TNESS WHEREOF,the parties hereto have cawed this Assignment to be duly executed on behalf of each of them respectively, by their respective officer thereunto duly authorized,in multiple originals,all as of the day and year first above written. ASSIGNOR: PROPERTY DEVELOPMENT ASSOCIATES a California general partnership By Pacific Resources Associates LLC, a Delaware limited liability company, its Manager Date:June'JQ,,2000 By w R David W.Remus Its Ll ASSIGNEE: SAFEWAY INC., a Delaware cc oration Date:June 2000 By Yfiom"L.Hansfan Its Vice President (Aclmowledgments on following page) Page 3—Assignment of Lease and Tcnant Lease Facility No.89-7786 Carlisle,PA 3M9 012 Cu1Db h PDA AOl24M BUM 645 PACE (Acknowledgment for Assignor) STATE OF OREGON ) )as. County of Washington ) This instrument was acknowledged before me on this essay of June,2000 by David W.Rnmuj6 r/A of Pacific Resources Associates LLC,a Delaware limited liability company,generai Partner of Property Development Associates,a California general partnership,to be the free and voluntary act of such party for the uses and Purposes mentioned in this instrument. tary Public f gon m js y commission expires: (Acknowledgment for Assignee) STATE OF CALIFORNIA } ka. COUNTY OF ALAMEDA ) : On this A day of June,2000,before me, �1��165_S9 , a notary public in and for said state,personally appeared Thomas L.Hanavan,personally known to me(or proved to me on the basis of satisfactory evidence)to be the penon(s)whose name(s)istam subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity(ies),and that by his/her signail*s)on the instrument the persons), or the entity upon behalf of which the porson(s),acted,executed the instrument. WITNESS my hand arrtl�seal. t)I SA GUTIERREZ < calarriss�on rraa9lo N opt VKN.•Gl1iflNla A OA cOMY Notary Pu c c :� +a sn.sa 2001 State of California My Commission Expires: Page 4—Assignment of Lease and Tenant Lease Facility No.94-7786 Carlisle,PA 3W19012 Cwaft M PDA AOL2Aw Nllt 648 PAM 166 EXHIBIT A ALL that certain had of land with the improvements thereon wectod,situate in North Middleton township,Cumberland County,Ponasylvards,bounded and desanbod pursuant to a survey by Thomas A.Neff.Registered Surveyor,on August 6.1963,as follows,to wit; BE004NM at a sphere in the canter of pattnsylvanis Highway Route No.34 said spike being located dim hundred three and fifty-five hundredths(303.55)feet in an Easterly direction along the canter of said Highway Route No.34,fiom the center of the intersection of said toad and Township Road No.504;them by land of Paul Albert Cohick and Virginia Cohick,his wife. North ninstan degrees fifty minutes Wed,(N 19 SO W),one hundred*even(107.00)feet to an iron pipe;thence by same„North seventy degrees ten minutes Bast,(N 7010 n three(3.00)foot to an iron pipe;thoon by the tratne North nineteen degrees fifty minutes Wort,(N 19 SO W),one hundred three and thirty-six hundredths(10336)feet to an had pipe;thence by land of Arnie G Brindle,South eighty-four dogma zero minutes But(S 84 00 E),one hundred thirty-one and fifty eight hundredths(131.58)foot to an icon pipe;thence by the same,South twenty-one degrees filly-eight minutes Bad,(S 2158 E),one hundred forty-two and eighty-one hundredths (142.81)feet to s spike in the center of Pennsylvania Highway Route No.34,aforessid;thence by the center of said Road;South sixty-five degrees thirty-one minutes West,(S 65 31 W),one hundred twenty-seven and twenty-ore(127.21)feet to the place of BEGINNING. CONTAINING.496 Acre and being improved with a brick and frame dwelling house. PREMISES-X ALL that certain tract of land situate in the Township of North Middleton,County of Cumberland and Commonwealth of Pennsylvania,bounded and described in accordance with a survey of D.P.RafTenape:ger Associates,dated August 26,1974,as follows,to wit; BEGINNING at a point in the c outertiae of State Highway,Route No.34,known a Spring Road,at lands of Robert Bowen,said point being North sixty-five degrees fifty-eight minutes East.(N 65 58 E),four hundred thirty-three and four-tenths(433.4)feet from the centerline of Sterretts Gap Avenue;theme along lands of Robert Bowers,North twenty-one degree fitly-eight minutes Weal,(N 2138 W),a distance of one hundred forty-three and six-tenths(143.06)feet to a point;them along the same sod lands of Richard Swartz,North eighty-four degrees no minutes West,(N 84 00 W),a distance of two hundred twenty(220.00)feet to a point in Sterrens Gap Avenue;thence by a line in Stermus Gap Avenue,North eleven degrees thirty minutes East. (N 1130 E),a distance of seventy and twelve-hundredths(70.12)feet to a point thence by same North no degrees thirty-eight minutes West,(N 00 38 W),a distance of eighty-cight and ninety- five hundredths(88.95)feet to a point;theses by same North nine degrees twenty minutes thirty seconds West,(N 09 20 30 W),a distance of one hundred two and thirty-five hundredths Page S—Assignment of Lease and Tenant Lease Facility No.89-7786 Carlisle,PA y 30044 Ott t WU&h PDA AO12AWC �^- BOOK 648 Pa 167 i r� (102.35)feet to a point at lauds of P.O.McClintock thaaae along sarge and lands of Merle F. Allahouse and R.C.Homnick North eighty-seven degrees four minutes Eno,(N 87 04 S),a distance of seven hundred thirty-five and twenty-five hundredths(735.25)feet to a point in the center line of State Highway Route 0 34,hmown as Sprift Road;thooge along said canterlins the following courses;South twenty nine dogress thirty-seven osinutes Wait.(S 29 37 n a distance of Wfour and taventy-two hundredths(54.72)feet to a point South thirty-Um degrees twenty. nine minutes Went,(S 32 29 W),a distance of one hundred(100.00)feet to a point;South thirty- seven degrees thirty-four minutes thirty seconds Wad,(S 37 34 30 W),a distance of one hundred(100.00)feet to a point;South forty-four degrees four minutes Wes;(S 44 04 W),a distance of one hundred(100.00)feet to a point;South filly degrees thirty4wo minutes West,(S 50 32 W),it distance of one hundred(100)feet to a point;South My-five degrees forty-two minutes West,(S 55 42 W),a distance of one hundad feet(100)to a point;South sixty degrees fifty-one minutes West,(S 60 51 W),a distance of one hundred(100)feet to the place of BEGINNING. CONTAINING 4.541 acres,more or less. Page 6—Assignment of Lease and Tenant Lease Facility No.89-7786 Carlisle,PA 700410 012 c run.h roA Aol2AM WOK 048 PACE 168 a EXHIBIT B Facility No.89-7786 Lease 0I: Carlisle,PA (Owned Real Lease dated January 2,1976 by and between Frank A.Nardo Property) and June A.Nardo,as original leswr and Safeway Stores, Incorporated,a Maryland corporation,as original lessee. Lease 02: Lease dated May 1.1976 by and between Frank A.Nardo and June A.Nardo,as original lessor and Drug Fair of Pa.,Inc.,a Pennsylvania corporation,as original lessee,as amended by Lease Amendments dated May 25,1976,June 3,1976, June 21,1976 and April 25,1989. Tenant Lease 01: Sublease dated August 1,1985,by and between Safeway Stores,Incorporated,a Maryland corporation,as original lessor and Nell's.Incorporated,a Pennsylvania corporation,as original lessee,as amended by Sublease Modification Agreements dated November 4.1996 and July 7,1997. Tenant Lease 02: r Sublease dated November 25,1991 by and between Rite Aid of Pennsylvania,Inc.,a Pennsylvania corporation,as original lessor and Goodwill Industries of Central Pennsylvania,Inc., as original lessee. Tenant Lease 03: Lease dated March 24,1999 by and between Property Development Associates,a California general partnership,as original lessor and Dolgenoorp.,Inc.,a Kentucky corporation, as oridEd lessee. Page fl—Assignment of Lease and Tenant Lease Facility No.W7786 Carlisle,PA Mg 012 MWo h PDA AOLZAoo 9oa1 641+ cue I Cy a i l ti� i C i J ��. 1713 Y �*4A�i7•!J'pS-213 Z9�!I.MW ZI Z. After recording return to: MRST AMERICAN TITLE IN pp, TWO PENN CENTER PLA A 81n �Of 8 Pacific Realty Associates,L.P. PHILADELPHIA,PA 11-1o� Attn: General Counsel(#89-7786) PHLOO-dIo 15350 S.W.Sequoia Parkway,Ste.300 Portland,OR 97224 _ r, cm c Until a change Is requested all tax statements ° m rn o shall be sent to the following address: a�°, ea sow Pacific Realty Associates,L.P. ° v Z Attn: General Counsel(489-7786) 3 0� 15350 S.W.Sequoia Parkway,Ste.300 e-n�� Portland,OR 97224 ►r M cn ��No a TAis space provldedfor recorder's use. DEED SAFEWAY INC.,a Delaware corporation,Grantor,grants,sells and conveys to PACIFIC REALTY ASSOCIATES,L.P.,a Delaware limited partnership,Grantee.the following described real property in the County of Cumberland,Commonwealth of Pennsylvania,to wit: Sec Exhibit attached hereto and made a part b The conveyance by Grantor to Grantee pursuant to this Dead is subject to: (i)a lien securing payment of real estate taxes and assessments;(ii)applicable zoning and on laws, ordinances,rules and regulations of and municipality,township,county,state or other governmental agency or authority restricting or regulating the use,occupancy or enjoyment of the Property;(iii)all matters that would be disclosed by a physical inspection or survey of the Property or that are actually known to Grantee;(iv)all covenants,conditions,easements, restrictions,liens,encumbrances and other exceptions of record;and(v)interests of tenants in possession. And Grantor hereby covenants and warrants to Grantee and Grantee's heirs,successors and assigns,that Grantor is lawfully seized in fee simple of the above-described Property,free from all encumbrances by,through or under Grantor,or any person claiming under Grantor. Page l- Deed Facility No.89-7786 `gip Carlisle,PA oodR 224 I-acc G9-'0"9oa ovtWehs y Dwd2Aoc subject to the matters set forth above. Except as set forth above.Grantor makes no warranty, express or implied,as to title to the above-described property. \ DATED this $~day of June,2000,rft1e71vG (.)3017.-M) GRANTOR: SAFEWAY INC., a Delaware corporation BY - Morriss L.Hanaviff Vice President STATE OF CALIFORNIA ) )ss. COUNTY OF ALAMEDA ) t �1� On this day of June,2000,before me,�4.LL btl`le/�! a notary public in and for said state,personally appeared Thomas L.Hanavan,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s)is/am subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity(ies),and that by his/her signature(s)on the instrument the peraon(s), or the entity upon behalf of which the person(s),acted,executed the instrument. WITNESS my hand and official seal. D1NACiUT1E7REZ \• e �'. �'.r_ C('[•NISStON tt5�910$ KoOeat.A u G.o eVUfU;•f�UFOfJI tA Notary Public [ u Sg.22,2001 r y State of California My Commission Expires: ES ,ADDn!SS "�S3SD S, K/. fi auariF ?Aek w.41 S;e 3M Off. ct-7 z? ¢ Page 2- Deed Facility No.89-7786 Carlisle,PA ODUK 224 Face 50 saoaaacti full y Dw=4w EXHIBIT A °PREMISES A" ALL that certain tract of land with the improvements thereon erected,situate in North Middleton township,Cumberland County,Pennsylvania,bounded ttnd described pursuant to a survey by Thomas A.Neff,Registered Surveyor,on August 6,1963,as follows,to wit; BEGINNING at a spike in the center of Pennsylvania Highway Route No.34 said spike being located three hundred three and fifty-five hundredths(303.55)foot in an Easterly direction along the center of said Highway Route No.34,from the center of the intersection of said road and Township Road No.504;thence by land of Paul Albert Cohick and Virginia Cohick,his wife, North nineteen degrees fifty minutes West,IN 19 50 W),one hundred seven(107.00)fat to an iron pipe;thence by same,North seventy degrees ten minutes East,IN 70 10 E),three(3.00)feat to an iron pipe;thence by the same North nineteen degrees fifty minutes West,(N 19 50 n one hundred three and thirty-six hundredths(103.36)feet to an iron pipe;thence by land of Annie C. Brindle,South eighty-four degrees zero minutes East,(S 84 00 E),one hundred thirty-one and fifty eight hundredths(131.58)feet to an iron pipe;thence by the same,South twenty-one degrees fifty-eight minutes East,(S 2158 E),one hundred forty-two and eighty-one hundredths (142.81)feet to a spike in the center of Pennsylvania Highway Route No.34,aforesaid;thence by the center of said Road;South sixty-five degrees thirty-one minutes West,(S 65 31 W),one _. hundred twenty-seven and twenty-one(127.21)feet to the place of BEGINNING. CONTAINING.496 Acre and being improved with a brick and frame dwelling house. PREMISES"D" ALL that certain tract of land situate in the Township of North Middleton,County of Cumberland and Commonwealth of Pennsylvania,bounded and described in accordance with a survey of D.P.Raffenspc.ger Associates,dated August 26,1974,as follows,to wit; BEGINNING at a point in the centerline of State I lighway,Route No.34,known as Spring Road,at lands of Robert Bowen,said point being North sixty-five degrees fifty-eight minutes East,(N 65 58 E),four hundred thirty-three and tour-tenths(433.4)feet from the centerline of Sterrens Gap Avenue;thence along lands of Robert Bowen,North twenty-0ne degrees filly-eight minutes West,(N 2158 W),a distance of one hundred forty-three and six-tenths(143.06)feet to a point;thence along the same and lands of Richard Swartz,North eighty-four degrees no minutes West,(N 84 00 W),a distance of two hundred twenty(220.00)feet to a point in Steam Gap Avenue;thence by a line in Sterrelts Gap Avcm e,North eleven degrees thirty minutes Earn, (N 11 30 E),a distance of seventy and twelve-hundredths(70.12)feet to a point thence by same North no degrees thirty-eight minutes West,(N 00 3.9 W),a distance of eighty-eight and ninety- five hundredths(88.95)feet to a point;thence f,y same North nine degrees twenty minutes thirty seconds West,(N 09 20 30 W),a distance of oi.r hundred two and thirty-five hundredths (102.35)feet to a point at lands of P.O.MCClilauck;thence along same and lands of Merle F. Allshouse and R.C.Homnick North eighty-sever.degrees four minutes East,(N 87 04 E),a distance of seven hundred thirty-five and twenty-five hundredths(735.25)feet to a point in the Page 3- Deed Facility No.89-7786 OUoK 2:''i t;;:. Jr�l Carlisle,PA 30049 Oat CMble Pat"D800AW canter line of State Highway Route 8 34,known as Spring Road;thence along said centerline the following courses;South twenty-nine degrees thirty-seven minutes West,(S 29 37 W),a distance of fifty-four and seventy-two hundredths(54.72)feet to a point;South thirty-two dcVves twenty- nine minutes West,(S 32 29 W),a distance of one hundred(100.00)feet to a point;South thirty- saven degrees thirty-four minutes thirty seconds West,(S 37 34 30 W),a distance of one hundred(100.00)feet to a point;South forty-four degrees four minutes Weal,(S 44 04 W).a distance of one hundred(100.00)feet to a point;South fifty degrees thirty-two ntinutes.West,(S 50 32 W),a distance of one hundred(100)feet to a point;South GRy-five degrees forty-two minutes West,(S 55 42 W),a distance of one hundred feet(100)to a point;South sixty degrees fifty-one minutes West,(S 60 51 W),a distance of one hundred(100)feet to the place of BEGINNING. CONTAINING 4.541 acres,more or less. W1161%PA this.__ Ott ri a.+...�J�ti1 VS V Ci4J Page 4- Deed Facility No.69.7786 ! Carlisle,PA : ._ 224 5:32 ,-..19000:aeP.s,1y zkr:a� testa n ITAVI' RECORDE"USE OM► Rlit�. REALTY TRANSFER TAX JV CONNONWWW or►INN/ylvANlA STATEMENT OF VALUE IRA DI►MUIENT Or II-INUE ". e11.a"or amvrau4 T...I U .Aaea. 30 IAIOENrD.rA tnfl4eae See Raven.for Imfructione CoeglMe each I.dlee end HI.in d.pltcote with Recorder d Deedr rh.n(110-lull•olwhoa•idem6on 1."mom Eorth In the Ill edwl Ehe deed Y wlMwl cmldd.redest,or by Rih,wA3)a te...Nnptio.6 ddm.d.A Sia.n,.,,i of Valw b not rpulr.d R Ar Mwder Y woolly e..wpl Ertel Iec based etn(l)Femgy releliomAlD or[ puLlic udlify.alumni,IF more.seen i.npd.d,epoch.JdtlI..d Ihee1i11. A CORRESPONDENT-All inauldon may be directed to the following arson: NMI T.1•pheee Naben VIRST AMERICAN TITLE INSURANCE COMPANY A—a41 215 )568-0212 by ... TWO PENN CENTYR PLAYA. SUITE 1910 PII;I..AUEI.PIIIA PA 19102 d TRANSFER DATA ... � ._. / ^� )'V. Si5 a[/."r�9 /Af-k k-a;.'i /.'jJ p !;: >c'4tloi/} r.4,Q� t:LTZLy9 OP_ 87224 fl�GrL/ltie7 47ZZ4 C PROPERTY LOCATION enter o .y. `r pelt' S D ,i__ ___•t r/—,(7—w C �I RC�7 �s4/LLiS L r I /sys—?a 2_ D W LUATiOrd DATA ll.i..� gar &rD. vb A.Cousey A. i6ef,-7 E IXEMPTION j)ATA .. .at listeeplion 2.Cho&Appropriate Do.11-1—far E.•mpfio.C1.1—d ❑ wire or int..W.surc..•'nn ❑ Pcr�d.r to Indumiol D—I.pm.m Ag.nq. ❑ Tron,?-to o trust.jA•.ath t..•nplan Copy of trust oU•.rm.m t .a,Ing„II ben.ficL„i.s ❑ Trond.r bet•.mn pL..r'mJ and og-�.(Anode comp!...u,py, •,g.nry/s.row pony :,y,e ,•n,) ❑ Trond.n to the Ccrnmonwudth,th.United Slater and by g:h,d.d,,:,.:,.-,—demnotloo or In Ilea of coederglba (1f condeesnmlon o,in R..of condemnation,attach copy o!n, .ion.) ❑ Transfer boot tno•t t.go,to o hold,,of o mortgage In d.foolt, rongap.Book p:,,-.!.•r ,pope Numbor , ❑-Co—diw..tort„nntury d..d.iAUaeb eompl 1.copy or the deed b.ing a.• 41-ed.) ❑ Stm,nory eorpom.ro nsolidmion,nerg.r or dirlr:on.(All-h, :y of a:r J•..) Cl Othr[Please e.pl.m a ion cl,:•<ed,if other then lord nuL•.dlew,Id.•Imelh,,,Iho•...omM.d th 1.Sra,..,.. .,sees:•.,,oee...r u..,-,.rs.tlon,ewd tslM b.rdley�rtoe.iedp 1.F,N Y Ire .,,end c mpl.,.. car. o u... C...e f.,by ..o COM LET: HIS tdRA;PRO'[RIY OR ATTACH a.'►lir_'?•.l[ 'urt.,•' T'• -- ::.T RESULT IN T11[RECORGSR'SREFUSAL RECD�: THE E , yo t 7 t31S FIRST AMERICAN TITLE INSURANCE Co. �y e TWO PENH CEMER PLAZA,SUITE 1010 PHWIDELPHIA.PA 101112 19Nt.ora-ady RECORDING REQUESTED BY: AND WHEN RECORDED RETURN TO: o Paeif c Realty Associates,LP Attn: General Counsel 089-7786 x o ai 15330 S.W.Sequoia Pkwy.,Suite 300 w Portland,Oregon 97224 V:q •a ►.. rn CA re. r- K N X1 7 a ASSIGNMENT OF LEASE AND TENANT LEASE THIS ASSIGNMENT is made w of this fl- day of June.2000,between SAFEWAY INC., a Delaware corporation("Assignor'), and PACIFIC REALTY ASSOCIATES, L.P., a Delaware limited partnership("Assignee'l. RECITALS A. Assignor owns the fee Interest in those certain premises described on Exhibit attached hereto(the`Premise"). B. The Promises are leased pursuant to a master lease(the"Lease") and a sublease ('Tenant Lease')described in Exhibit R attached hereto. Assignor holds all right, title and interest in and to the hdtdlord's and tenant's interest under the Lease and the landlord's interest under the Tenant Lease. C. Pursuant to that certain Debt Property Acquisition Agreement (the "Agreement") dated as of June J2,- 2000.as may be amended,between Assignor and Assignee,Assignor desires to assign the Lease and Tenant Lease to Assignee,and Assignee desires to accept an assignment of the Lease and Tenant Lease,together with all right,title and interest of Assignor thereunder as hereinafter provided. NOW,THEREFORE,for valuable consideration,the receipt and adequacy of which are hereby acknowledged.and in consideration of the premises and the mutual covenants.conditions and agreements contained herein and in the Agreement,the parties agree as follows: Page 1-Assignment of Lease and Tenant Lease Facility No.89-7786 Carlisle,PA 30N 19Oi l 01"16.h e.'"7 ACUft BOOK 648 PAGE 1700 1. Assignment Assignor hereby transfers,seta over and assigns to Assign=all right,title and interest of Assignor in and to the Lase and Tenant Lease, TO HAVE AND TO HOLD the am to Assigns, its snecessora and assigns forever. SUBJECT. HOWEVER, to each and every provision of the Lase and Taunt Leese and as hereinafter provided. 2. Aceeptmee of Assigaasent Assignee ac=pts the within assignment and agrees to perform and discharge all of the covenants.terms,conditions and provisions to be kept,observed and performed by Assignor as landlord and tenant under the Lase and a landlord under the Tenant Lase from and after the Effective Date as defined in Paragraph 3 below. Nothing herein shall obligate Assign=to "some or PAY coy rant,A%charge,expanse of adJultment attributable to any obligations of Assignor under the Lease or Temat Lease which shall have arisen or accrued prior to the Effective Data 3. Effective Date: This Assignment shall be effective Juno io,2000(the"Effective Date). 4. Notice: Any notice,request,instruction or other document to be given hereunder by either party to the other shall be in writing and delivered as provided in the Agreement. S. Counterparts: This Assignment may be executed in one or more counterparts by the parties hereto. All counterparts shall be construed together and shall constitute one agreement. 6. Binding Effect This Assignment shall be binding on and inure to the benefit of the parties and their respective heirs,successors and assigns. Page 2—Assignment of Lease and Taunt Lease Facility No.89-7786 Carlisle,PA 3ON9 at I C"&.h Eery AOl1Ax r" BOOK 648 PACE 171 IN WITNESS WHEREOF,the parties hereto have caused."Assignment to be duly executed on behalf of each of than respectively,by their respective officers thereunto duly authorized,in multiple originals.all as of the day and year first above written. ASSIGNOR SAFEWAY INC., a Delaware corporation Date:June 2000 By TIMM L Its Vice President ASSIGNEE: PACIFIC REALTY ASSOCIATES,L.P. a Delaware limited partnership By PacTrust Realty Inc, a Delaware oorporation, its General Partner i Dau:June LO,2000 By 10 Dmvld W.Ramua Its f/! (Acknowledgments on following page) Page 3—Assignment of Lease and Tenant Lease Facility No.89-7786 Carlisle,PA )OW 011 CmUsk.h awy AMU= 1}E BOOK 648 PAGE li7 (Acknowledgment for Assignor) STATE OF CALIFORNIA ) COUNTY OF ALAMEDA ) On this day of June,2000,before me, a notary public in and for add slue,penondly appeared Tltomula L.Haaavan.personally known to me(or proved to me on the basis of satisfactory evidence)to be the permn(s)whose name(a)is/are subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized apacity(iies),and that by hielher signature(,)on the instrument the person(s), or the entity upon behalf of which the person(s).acted,executed the instrumeaL WITNESS my hand and official seal. DNA GUTIERREZ COMMIeaION IrN0r0 aVIARr NRp•euarolsuI p,s; EDA,. I Notary Public State of California My Commission Expires: (Acknowledgment for Assignee) STATE OF OREGON ) )a. County of Washington ) This instrument was acknowledged before me on this 19�laay of June,2000 by Dtivld W.RRmug ,as I/E ofPacTrust Realty,Inc.,a Delaware corporation, general partner of Pacific Realty Associates,L.P.,a Delaware limited partnership,to be the free and voluntary act of such party for the uses and purposes mentioned in this irutrument. AEFM BtYi L W100tg tary kb"fir1=000rigon yu y commission expires: w +wr, sons Page 4—Assignment of Lease and Team Lease Facility No.W7786 Carlisle,PA lowel1 x-lla,,h,Wry AOUAx aoar 698 PAcf 1.73 5 EX Mrr A "PR>NITSE"u A" ALL that certain tract of hind with the improvements thenreoo.aeded,altnete in North Middleton township,CumbarLrod County,Paaaa*snia.130011 d and deaeribW POSSUM to a survey by Thoran A.Nett Regii wW Surveyor,an August 6,1963,as follows,to wit; BBGINNWO it a spike in the center of Pennsylvania Highway Route No.34 said space being located three hundred throe and Aft-Ova hundredths(303.33)fear in an Eader y direction along the tenter of said Highway Route No.34,ficin the center of the intersection of said road and Township Road No.$04;thence by land of Psul Albert CoMck and Virginia Cohick.his wife, North nineteen degrees fifty minutes West.(N 19 50 W),one hundred seven(107.00)feet to an a Iran pips,thence by same,North seventy degrees ten minutes East.(N 70 10 E),three(3.00)feet to an iron pipe,thence by the same North nineteen degrees fifty minutes West,(N 19 50 W),one hundred throe and thirty.six hundredths(103.36)feet to an Isom pips thence by land of Annie C. Brindle,South eighty-four degrees zero minutes East.(S 84 W E),one hundred thirty-one and fifty eight hundredths(131.58)feet to an iron pipe,tha a by the name,South twenty-one degrees fi"SM minutes East.(S 2159 n one hundred forty-two and eighty-one hundredths (142.81)feat to a spike In the center of PconsylvsniaHighwey Route No.34.aforesaid;thence by the center of acid Road;South sixty-five degrees thirty-one minutes Wear,(S 65 31 W),one hundred twenty-eeven and twenty-one(127.21)feet to the place of BEGINNING. !. CONTAINING.4%Acre and being improved with a brick and fnsme dwelling house. ' PREMISES On" ALL that certain tract of head situate In the Township of North Ididdleton,County of Cumberland and Com man with of Pemsyivanis,bounded and described in accordance with a survey of B.P.Raffespeger Associates,dated August 26.1974,as follows,to wit; BEGINNING at a point in the centerline of State Highway,Route No.34,known as Spring Road,at lands of Robert Bowen,said point being North sixty-five dsgneear fifty-eight minutes East,(N 65 58 E),four hundred thirty-three and fouf-tenths(433A)16d firm the centsrlinc of Starema Gap Avenue;theme along lands of Robert Bowmen,North twenty-one degrees fifty-eight minutes West,(N 2158 W),a distance of one hundred forty4kroo and six4enths(143.06)fed to a point;theme along the same and lands of Richard Swartz.North eighty-four degrees no minutes West,(N 84 00 W),a distance of two hundred twenty(220.00)fed to a point in Stmetts r Gap Avenue;theme by a line in Sterretts Gap Avenue.North clam degrees thirty minutes East, (N 1130 E),a distance of seventy and twtive hundredths(70.12)fed to a point thence by same North no degrees thirty-eight minutes West,(N 00 38 W),a distance of eighty-eight and ninety- five hundredths(88.91)feet to a point;thence by aunt North nine degrees twenty minutes thirty seconds West,(N 09 20 30 W),a distance of one hundred two and thirty-five hundredths Page 5—Assignment of Lesser and Tenant Lease Facility No.89-7786 Carlisle.PA 30M er 1 CaUsU A 1"AOLUW eosa?t 646 PAci (10235)fed to a point at lands of P.O.McClintock;thence along same and lands of Merle F. Allahoose std R.C.Homnick North eighty-seven degrees four minutes But,(N 87 04 E),a distance of savers hundred thirty-five and twenty-five hundredths(735.25)feet to a point in the centerline of State Mahway Route 0 34,known u Spring Road;theme along mid centerline the following course;South twenty-nine dogreea thirty-seven minutes Weak(S 29 37 W),a distance of fifty-four and saventy-two hundredths(34.72)feet to a point;South thirty-two degrees twenty- nine minutes Wat,(S 32 29 W),a distance ofone hundred(100.00)feet to a point;South thirty- $am degrees thirty-four minutes thirty seconds West,(S 37 34 30 W),a distance of one hundred(100.00)feet to a point South forty-four degrees fear minutes West,(S 44 04 W),a distance of one hundred(100.00)feet to a point;South fifty degrees thirty-two minutes Weal,(S 50 32 W),a distance of one hundred(100)fed to a point;South Aft-five degrees forty-two minutes West.(S 55 42 W),a distance of one hundred fed(100)to a point;South sixty degrees fifty-one rpinutes Weal,(S 60 51 W),a distance of one hundred(100)fed to the place of BEGINNING. CONTAINING 4.541-era,mote or less. Page 6—Assignment of Lease and Tenant Lase Facility No.89-7786 Carlisle,PA ]OOH 011 CWH&h fury AOUAoe DOOK 648 PSI 175 f B]C MIT B FlcWq No.89-7786 Lease 01: Carude,PA (Owned Real Lem dated January 2,1976 by and betwas i Frank A.Nardo Propartjn) and Iwo A.Nardo,as original lassor.wd Safeway Storer, Incorporated,a Maryland corporation,#&original lessee Lease 02: Lease dated May 1,1976 by and between Frank A.Natdo end June A.Nardo,as original leper and Drug Fair of Pa..Inc.,a Pennsylvania corporation,as odsmai lessm as amended by Lease Amendments dated May 2S,1976,June 3,1976. June 21.1976 sod April 25,1989. Tenant Laws 01: Sublease dated August 1.1985,by and between Safeway Stores,Incorporated,a Maryland corporation,as original leper and Nell's,Incorporated,a Pennsylvania corporation,as original lessee,p amended by Sublease Modification Agreements dated November 4,19%and July 7,1997. Tenant Leap 02: Sublease dated November 25,1991 by and between Rite Aid of Permsyh+arda,Inc.,a Pennsylvania corporation,as original lessor and Goodwill Industries of Central Psnnsyh+ania.Inc., as original lcoca Teaant03: Lease dated Match 24,1999 by and between Property Development Associates,a California gareral Partnership,All original lessor and Dolgancorp.,Inc.,a Kentucky corporation. a.on ' al lessee. State of isnnsylwnla ll CoumydCumbarfandl Rowrdsd In the office for the raewft of Dssdt *M n�y�d for Cumberland C%nW f4. In 18J' eaak fors! Lbl — paps Ls r d wftnass my fund a�da of o Pap7— r-- Fscility Nbt89=7786 a' 'Cariiile,PA reoN 01 r CMblr'h aGr MXAAW Rom 648 PACE 17fi 2 ' " �X82 2jr...t., When recorded return to. ii }3 7T p. 7I 1:D 1.E R ur DEEDS Plaza K Realty Limited Attn:George Loentarakis f �: 184 Columbia Turnpike,Suite 301 Florham Park,NJ 07932 '02 JUN 26 PSI 3 23 SPECIAL WARRANTY DEED THIS INDENTURE made this 20th day of June, 2002, between PACIFIC REALTY ASSOCIATES,L.P., a Delaware limited partnership(hereinafter called Grantor),of the one part, and PLAZA K REALTY LTD., L.P., a New Jersey limited partnership (hereinafter called Grantee),of the other part, WIT'NESSETH that the said Grantor,for the consideration of the sum of Three Million Six Hundred Thirty-Six Thousand Dollars ($3,636,000) lawful money of the United States of America, paid to an accommodator pursuant to an IRC 1031 exchange, does hereby convey and specially warrants to Grantee, that real property (including rights and privileges appurtenant thereto) located in North Middleton Township, Commonwealth of Pennsylvania, described as follows: See Exhibit A attached hereto and incorporated herein by reference. TOGETHER with all and singular the tract of land, improvements, ways, streets, alleys, driveways, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof; and all the estate, right, title, interest,property,claim and demand whatsoever of the said Grantor,as well at law as in equity,of, in,and to the same. TO HAVE AND TO HOLD the said tract of land, hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the said Grantee, its heirs and assigns, to and for the only proper use and behoof of the said Grantee, its successors and assigns forever. IN WITNESS WHEREOF, the Grantor has caused this Special Warranty Deed to be duly executed on its behalf by the duly authorized Vice President. Dated the day and year first above written. PACIFIC REALTY ASSOCIATES,L.P., a Delaware limited partnership By PacTrust Realty,Inc., a Delaware corporation, its ne n B y Richard P. Bu no Its: Vice President µ,n_ 252 ' : : X57 ��c+�»�e.�ya^naeeeea.aac Page 1 at2 STATE OF OREGON ) )ss. County of Washington ) This instrument was acknowledged before me on JLA h e— 20 , 2002, by RICHARD P. BUONO, as Vice President of PacTrust Realty, Inc., general partner of Pacific Realty Associates, L.P., to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. OFFICIAL SEAL Notary Public m and for said County and Ptate CINDY A. CARDEN My commission expires:_ © NOTARY PUBLIC-OREGON MY COMMISSION EXPIRES MAY 2592004 BOOK �z9f2 �.�. 3:: �X�r".��5$ 2ptr7786.Carlisle.PA LEGAL DESCRIPTION "PREMISES A" ALL THAT CERTAIN tract of land with the improvements thereon erected, situate in North Middleton township,Cumberland County,Pennsylvania,bounded and described pursuant to a survey by Thomas A.Neff,Registered Surveyor,on August 6, 1963,as follows,to wit; BEGINNING at a spike in the center of Pennsylvania Highway Route No. 34 said spike being located three hundred three and fifty-five hundredths (303.55) feet in an Easterly direction along the center of said Highway Route No. 34, from the center of the intersection of said road and Township Road No. 504; thence by land of Paul Albert Cohick and Virginia Cohick, his wife, North nineteen degrees fifty minutes West, (N 19 50 W), one hundred seven (107.00) feet to an iron pipe; thence by same, North seventy degrees ten minutes East, (N 70 10 E), three (3.00) feet to an iron pipe; thence by the same North nineteen degrees fifty minutes West, (N 19 50 W), one hundred three and thirty-six hundredths (103.36) feet to an iron pipe; thence by land of Annie C. Brindle, South eighty-four degrees zero minutes East, (S 84 00 E), one hundred thirty-one and fifty eight hundredths (131.58) feet to an iron pipe; thence by the same, South twenty-one degrees fifty-eight minutes East, (S 2158 E), one hundred forty-two and eighty-one hundredths (142.81) feet to a spike in the center of Pennsylvania highway Route No. 34, aforesaid; thence by the center of said Road; South sixty-five degrees thirty-one minutes West, (S 65 31 W), one hundred twenty-seven and twenty-one (127.21) feet to the place of BEGINNING. CONTAINING.496 Acre and being improved with a brickand frame dwelling house. PREMISES"D" ALL THAT CER'T'AIN tract of land situate in the Township of North Middleton, County of Cumberland and Commonwealth of Pennsylvania, bounded and described in accordance with a survey of D.P.RafFensperger Associates,dated August 26, 1974,as follows,to wit; BEGINNING at a point in the centerline of State Highway, Route No. 34, known as Spring Road, at lands of Robert Bowen, said point being North sixty-five degrees fifty-eight minutes East, (N 65 58 E), four hundred thirty-three and four-tenths(433.4)feet from the centerline of Sterretts Gap Avenue;thence along lands of Robert Bowen, North twenty-one degrees fifty-eight minutes West, (N 21 58 W), a distance of one hundred forty-three and six-tenths (143.06) feet to a point; thence along the same and lands of Richard Swartz, North eighty-four degrees no minutes West, (N 84 00 W), a distance of two hundred twenty (220.00) feet to a point in Sterretts Gap Avenue; thence by a line in Sterretts Gap Avenue, North eleven degrees thirty minutes East, (N 11 30 E), a distance of seventy and twelve- hundredths(70.12)feet to a point thence by same North no degrees thirty-eight minutes West, (N 00 38 W),a distance of eighty-eight and ninety-five hundredths(88.95)feet to a point; thence by same North nine degrees twenty minutes thirty seconds West, (N 09 20 30 W), a distance of one hundred two and thirty-five hundredths*(102.3 5) feet to a point at lands of P.O.McClintock,thence 9JOK 5 "'cA859 EXHIBIT A FW1of2 2ptM&6;Cartiala,PA LEGAL DESCRIPTION along same and lands of Merle F.Allshouse and R.C.Homnick North eighty-seven degrees four minutes East, (N 87 04 E),a distance of seven hundred thirty-five and twenty-five hundredths (735.25) feet to a point in the center line of State Highway Route # 34, known as Spring Road; thence along said centerline the following courses; South twenty-nine degrees thirty-seven minutes West, (S 29 37 W), a distance of fifty-four and seventy-two hundredths (54.72) feet to a point; South`thirty-two degrees twenty-nine minutes West, (S 32 29 W),a distance of one hundred.(100.00)feet to a point; South thirty- seven degrees thirty-four minutes thirty seconds West, ( S 37 34 30 W), a distance of one hundred (100.40) feet to a point; South forty-four degrees four minutes West, (S 44 04 W), a distance of one hundred(100.00) feet to a point; South fifty degrees thirty-two minutes West, (S 50 32 W),a distance of one hundred (100) feet to a point; South fifty-five degrees forty-two minutes West, (S 55 42 W), a distance of one hundred feet(100)to a point;South sixty degrees fifty-one minutes West,(S 60 51 W),a distance of one hundred(100)feet to the place of BEGINIUNG. CONTAINING 4.541 acres,more or less. Being the same premises which Safeway Inc. granted and conveyed to Pacific Realty Associates, L.P. dated June 8, 2000 and recorded in Cumberland County Deed Book 224, Page 569. Cumberland County Reconier of Deeds Instruaent Filing Receipt# 369377 Instrl2002-025822 612612442 15:1 Remarks: MARCUS MCKNiGNTIFIRST A ERiC► DEED this to be recorded DEED - VRIT j Certify DEED - RTT STATE 36360. In Cumberland COUnty PA CARLISLE AREA 18180, DIED �(IDDLETON 18180. DEED - A!H 11. °. CO IMPROVEMENT FRO REC. IMPRVMT FIND a Check# 16374 Recorder Of Deeds Check# 16378 136,360.' Check# 44394 136,360,! Total Received....... 172,741.` BOOK k 5'��' ?Af4'E�L86O EXHIBIT A Pale 2 of 2 RECORDING REQUESTED BY AND ROBERT r. Z I E G L E R " WHEN RECORDED MAIL TO: IF DEEDS Plaza K Realty Ltd.,L.P. ," 1,T Y-P A Ann:�c T Suite 301 '02 JUN 26 Prl 3 27 Florham Park,NJ 07932 ASSIGNMENT OF LESSOR'S INTEREST UNDER LEASE AND TENANT LEASES THIS ASSIGNMENT OF LESSOR'S IIVT HEST UNDER LEA AND TENANT LEASES(this"Assignment")is made and entered into as of this'2075'_day of June,2002,by and between PACIFIC REALTY ASSOCIATES, L.P., a Delaware limited partnership ("Assignor"), and PLAZA K REALTY LTD., L.P., a New Jersey limited partnership ("Assignee"). RECITALS This Assignment is entered into on the basis of and with respect to the following facts, agreements and understandings: A. On January 2, 1976,Frank A.Nardo and June A.Nardo ("Original Lessor"), as Lessor,and Safeway Stores,Incorporated,as Lessee,entered into a certain Lease,pursuant to which said Lessor demised to said Lessee a portion of that certain real property in the City of Carlisle, County of Cumberland, State of Pennsylvania, more particularly described on Exhibit A Attached hereto and made a part hereof by this reference. Said Lease was amended by First Shopping Center Lease Modification Agreement dated June 14, 1976, and is herein referred to as the"Lease". Assignor is successor in interest to Lessee. B. On August 1,1985,Safeway Stores,Incorporated,as original sublessor,and Nells' Incorporated, as original sublessee, entered into a certain Sublease, pursuant to which said original sublessor demised to said sublessee certain real property in the City of Carlisle, County of Cumberland, State of Pennsylvania, more particularly described on Exhibit A, attached hereto and made part hereof by this reference (the "Property"). Said sublease was subsequently amended by First Sublease Modification Agreement dated November 7, 1996 and Second Lease Modification Agreement dated July 7, 1997, and as so amended is hereinafter referred to as "Tenant Lease A." Assignor is the successor in interest to original sublessor. C. On November 25. 1991, Rite Aid of Pennsylvania, Inc., as original lessor, and Goodwill Industries of Central Pennsylvania, Inc., as original lessee, entered into a certain sublease,pursuant to which said original lessor demised to said Issee certain real property in the City of Carlisle, County of Cumberland, State of Pennsylvania, more particularly described on Exhibit A, attached hereto and made part hereof by this reference (the "Property"). Assignor is the successor in interest to original lessor. Said sublease is hereinafter refernd to as"Tenant Lease B." D. On March 24, 1999, Property Development Associates, as original lessor, and Dolgencorp., Inc., as original lessee, entered into a certain Lease, pursuant to which said original lessor demised to said lessee certain real property in the City of Carlisle,County of Cumberland,State of Pennsylvania,more particularly described on Exhibit A,attached hereto and made part hereof by this reference(the"Property"). Assignor is the successor in interest to original lessor. Said sublease is hereinafter referred to as"Tenant Lease C." E. By an instrument dated of even date herewith and recorded immediately prior to this instrument, Assignor has sold and conveyed its fee interest in and to the Property to Assignee and, in conjunction therewith, Assignor has agreed to assign its interest as Lessor under the Lease, Tenant Lease A, Tenant Lease B and Tenant Lease C to Assignee and Assignee has agreed to assume the obligations of the Lessor under the Lease,Tenant Lease A, Tenant Lease B and Tenant Lease C,all as more particularly set forth in this Assignment. N4Ot n"'``" BOOK 688 PACE 1119 " NOW, TIaRUEFORE, for good and valuable consideration, including the mutual covenants and agreements set forth herein,Assignor and Assignee agree as follows: 1. Assignment. Assignor hereby sells, assigns, grants, transfers and sets over to Assignee, its heirs, personal representatives, successors and assigns, all of Assignor's right, title and interest as Lessor under the Lease,Tenant Lease A,Tenant Lease B and Tenant Lease C. 2. Acceptance of Assignment and Assumption of Obligations. Assignee hereby accepts the assignment of the Lessort interest under the Rase and, for the benefit of Assignor, assumes and agrees faithfully to perform all of the obligations which are required to be performed by the Lessor under the Lease,Tenant Lease A,Tenant Lease B and Tenant Lease C. 3. Effective Date. The effective date of this Assignment and each and every provision hereof is and shall be June 26, 2002 (the"Effective Date"). 4. Assignee's Release of Assignor. As of the Effective Date, Assignee hereby waives, releases, acquits and forever discharges Assignor, and its successors and assigns, and their respective officers, directors, employees, agents and any other person acting on behalf of Assignor (such entities and persons being hereinafter collectively referred to as the"Released Parties"),from any and all claims, actions, causes of action, demands, obligations, expenses, liabilities, or rights whatsoever, direct or indirect, known or unknown, foreseeable or unforeseeable, which Assignee may now or hereafter have against the Released Parties,or any of them,arising out of any act or omission or alleged act or omission,including,without limitation,any breach or default committed or alleged to have been committed by Assignor as Lessor under the Lease occurring prior to the Effective Date of this Assignment. S. Disclaimer of Merger Intention. Assignee currently holds the Lessee's interest under the Lease. Assignor and Assignee hereby agree that the acquisition of the Lessor's interest under the Lease by Assignee is not intended by either party to terminate,extinguish,or otherwise adversely affect the validity of the Lease or the interest of either the Lessor or the Lessee thereunder through the doctrine of merger or any similar or related doctrine, but, to the contrary, the Lessor'a interest and the Lessee's interest under the Lease are intended to and shall remain separate and distinct notwithstanding the fact that both such interests are held by Assignee. 6. Assignor's Indemnity of Assignee. Assignor hereby agrees to defend (with counsel reasonably satisfactory to Assignee) and indemnify Assignee,its heirs, personal representatives,successors and assigns.and each of them, from and against any and all claims, suits, demands, causes of action, actions, liabilities, losses, damages, costs and expenses (including attorneys'fees) arising out of or resulting from any act or omission committed or alleged to have been committed by Assignor as Lessor under the Lease, including without limitation any breach or default committed or alleged to have been committed by the lessor under the Lease, prior to the date of this Assignment. 7. Assignee's Indemnity of Assignor. Assignee,for itself and on behalf of its heirs,personal representatives,successors and assigns, hereby agrees to defend (with counsel reasonably satisfactory to Assignor) and indemnify Assignor, its partners, and their respective directors, officers, employees, agents, representatives,successors and assigns,and each of them,from and against any and all claims, suits, demands, causes of action, actions, liabilities, losses, damages, costs and expenses (including attorneys'fees)arising out of or resulting from any act or omission committed or alleged to have been committed by Assignee, its heirs, personal representatives, successors and assigns, as Lessor under the Lease, including without limitation any breach or default VOAorl a.�aoe :,:.F. Boaz 688 PAu.1180 committed or alleged to have been committed by the Lessor under the Lease,on or after the date of this Assignment. & Joint and Several Liability. ' In the event that either party hereto consists of or includes more than one person or entity,each of such persons or entities shall be jointly and severally liable for the performance of each and all of the obligations to be performed by such party under and by virtue of this Assignment. 9. Successors and Assigns. This Assignment, and each and every provision hereof, shall bind and inure to the benefit of the parties hereto and their respective heirs,personal representatives,successors and assigns. 10. Governing Law. This Assignment shall be construed and interpreted and the rights and obligations of the parties hereto determined in accordance with the laws of the State wherein the Property is located 11. Headings and Captions. The headings and captions of the paragraphs of this Assignment are for convenience and reference only and in no way define, describe or limit the scope or intent of this Assignment or any of the provisions hereof. 12. Gender and Number. As used in this Assignment, the neuter shall include the feminine and masculine,the singular shall include the plural and the plural shall include the singular, as the context may require. 13. Multiple Counterparts. This Assignment may be executed in one or more counterparts,each of which shall be deemed an original,but all of which together shall constitute one and the same instrument. 14. Attorneys'Fees. In the event that either party hereto brings an action at law or in equity to enforce or interpret or seek redress for breach of this Assignment, the prevailing party in such action shall be entitled to recover from the other its litigation expenses and reasonable attorneys'fees . in addition to all other appropriate relief. IN WITNESS WHEREOF, the parties hereto have executed this Assignment on the respective dates set opposite their signatures below, but this Assignment on behalf of such party shall be deemed to have been dated as of the date fast above written. ASSIGNOR: PACIFIC REALTY ASSOCIATES,L.P., a Delaware limited partnership By PacTrust Realty,Inc., a Delaw corporation, it cneral I Date: dune Z© ,2002 By .chard P. no Its:Vice President [Signatm of Assignee on following page.] e.c.noc putt BOOK 688 PAC[11SI " ASSIGNEE: PLAZA K REALTY LTD.,L.P., a New Jersey limited partnership By: Plaza ealty,Inc. New Jersey corpo on,its O eral Partner Date: lv^e- °� ,2002 By L---�t-- Its (Acknowledgment for Assignor) STATE OF OREGON ) )ss. County of Washington ) This instrument was acknowledged before me on June 20,2002,by Richard P.Buono,as Vice President of PacTrust Realty,Inc.,general partner of Pacific Realty Associates,L.P.,to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. 604hwd ICIAL SEAL Notary Public and for said County and State A.CARDEN UBLIC-OREGON My commissio n expires: 5/25/04 CSION NO.334991 ffNO:TARRY MISSPIRES MAY 25,2004 (Acknowledgment for Assignee) STATE OF ) )ss. II�� County of 1'l l'dd JL-A-e- .This instrument was acknowledg befo a me this day of 2002,by �o P B!W P �' as S I of Plaza K Realty,Inc.,a New Jersey corporation,general partner of Plaza K Realty Ltd.,L.P., a New Jersey limited partnership,on behalf of such partnership. Notary ublic in and for said ounty and a"Y' My commission expires: _ NB.AMrE K• �'�`�. M'O�an�IMlari E�Nr Ndlr. 900K 6$6 PACE 118? 3n4M��t�..s.c Doc r I Certify this to be recorded EXHIBIT A In Cumberland County PA LEGAL DESCRIPTION "�`� "PREMISES A" ,,f ALL THAT CERTAIN tract of land with the improvements thereon a Rt d,e Oit&`i!1 RWS Middleton township,Cumberland County,Pennsylvania,bounded and described pursuant to a survey by Thomas A Ne$Registered Surveyor,on August 6,1903,as follows,to wit; BEGINNING at a spike in the center of Pennsylvania highway Route No.34 said spike being located three hundred three and fifty-five hundredths(303.55) feet in an Easterly direction along the center of said Highway Route No. 34, from the center of the intersection of said road and Township Road No. 504; thence by land of Paul Albert Cohick and Virginia Cohick,his wife,North nineteen degrees fifty minutes West, (N 19 50 W), one hundred seven (107.00) feet to an iron pipe; thence by same,North seventy degrees ten minutes East, (N 70 10 E), three (3.00) feet to an iron pipe; thence by the same North nineteen degrees fifty minutes Nest, (N 19 50 W), one hundred three and thirty-six hundredths (103.36) feet to an iron pipe; thence by land of Annie C. Brindle, South eighty-four degrees zero minutes East, (S 84 00 E), one hundred thirty-one and t f,y eight hundredths (131.58) feet to an iron pipe-,thence by the same, South twenty-one degrees fifty-eight minutes East, (S 2158 E),one hundred forty-two and eighty-one hundredths (142.81) feet to a spike in the center of Pennsylvania Highway Route No.34,aforesaid; thence by the center of said Road; South sixty-five degrees thirty-one minutes West, (S 65 31 W), one hundred twenty-seven and twenty-one (127.21) feet to the place of BEGINNING. CONTAINING.496 Acre and being improved with a b; kand frame dwelling house. PREMISES"D" ALL THAT CERTAIN tract of Innd situate in the Township of North Middleton, County of Cumberland and Commonwealth of Pc::nsylvania, boun .;d and described in accordance with a survey of D.P.Raffensperger Associates,dated "ugust 26, 1974, as follows,to wit; BEGINNING at a point in the centerline of State Hig' •a�, Route No.34,known as Spring Road,at lands of Robert Bowen,said point being Notch sixty-fn••: ccgees fifty-eight minutes East,(N 65 58 E), four hundred thirty-three and four-tenths(433.4)feet from:he centerline of Sterretts Gap Avenue;thence along lands of Robert Bowen, Nonh twenty-one degrees fifty-eight minutes West, (N 21 58 W), a distance of one hundred fort..•-three an i six-tenths (143.• G) feet to a point;thence along the same and lands of Richard Swartz, P cth ci;itt:=1.ur depecs no ; .:mutes West, (N 84 00 W),a distance of two hundred twenty (220.00) feet to a point in Sterretts C.,) Avenue; thence by a line in Sterretts Gap Avenue, North eleven degrees thirty minutes East, (N 11 30 E), a distance of seventy and twelve- hundredths(70.12)feet to a point thence ky same l:orth: 1•tgrees thirty-eight minutes West,(N 00 38 W), a distance of eighty-tie ht a,.—Harty-five hundredths(88.95)feet to a point; thence by same North nine degrees twcwy minutes thir y seconds West,(N 09 20 30 W),a distance of one hundred two and thirty-five h.:ndre.'::.,.s(102.35) fe.. to a point at lands of P.O.McClintock thence along same and lands of Mer:°F.:.11c': ::;e and 1 .C.HL: ::i:::North eighty-seven degrees four minutes East,(N 87 04 E),a distant_ of s,,•:er, :,. :fired thin;•-fry twenty-five hundredths(735.25)feet to a point in the center line of State llibin.ay Routc # 3 known as Spring Road; thence along said centerline the following courses; South t%venty-nine deer cs thirty-seven minutes West,(S 29 37 W),a distance of fifty-four and sev nr, tw, i mdredthis (54. ) feet to a point; South'th*--two degrees twenty-nine minutes West, (S ??2)V,'), �:istance c f or.: , mdred(100.00)feet to a point;South thirty- seven degrees thirty-four mir:utes thi:t, econds ;i'_st, S 37 34 30 W)t a distance of one hundred (100.00) feet to a point; South degrees f u, s West, (S 44 04 W), a distance of one hundred(100.00)feet to a poi.-,t;S.:ci': :.,'y de-revs hi,t.- minutes West,(S 50 32 W),a distance of one hundred (100) feet to a point; lifly-five deb forty-two minutes West, (S 55 42 W), a distance of one hundred feet(1C0)to a,,,.:tt; South sixty,.:;;iees fifty-one minutes West,(S 60 51 W),a distance of one hundred(10C)f�et t)the 1 ;.c:e of 1t ',G1'.• G. CONTAINING 4.541 acres, m•ire or le.s. ).�r 688 PAu.1183 it VERIFICATION I,Ellen Smoii,verify that the statements made in the foregoing document 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.§4904 relating to unsworn falsification to authorities. Date: Elie moll 8 • CERTIFICATE OF SERVICE I,Richard B. Druby, Esquire, of the law firm of Nestico Druby,PC,hereby certify that on the 26th day of April, 2013, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid,to the following: Paul J. Bruder, Esquire Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, PA 17108-1146 Counsel for Defendant Associated Wholesalers, Inc. ichard B. Druby LLO� 'l=i iCE OF THE PROTHONOTARY 2013 MAY -3 PM 1: 59 CUMBERLAND COUNTY RICHARD B. DRUBY,ESQUIRE PENNSYLVANIA PA Attorney I.D.No. 61904 Nestico Druby,PC 1135 East Chocolate Avenue Suite 300 Hershey, PA 17033 Tel: 717-533-5406 rdrubyna hersheypalaw com Attorney for Plaintiff PLAZA K. REALTY, LTD., L.P., and IN THE COURT OF COMMON PLEAS OF PLAZA K. REALTY-CARLISLE, LP CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 12-5718 ASSOCIATED WHOLESALERS, INC. Defendant CIVIL ACTION ACCEPTANCE OF SERVICE 1, Paul J. Bruder, Esquire, hereby accept service of the Complaint on behalf of Defendant Associated Wholesalers, Inc. and certify that I am authorized to do so. Dated: W Paul J. Br der, E - ire Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, PA 17108-1146 Counsel for Defendant Associated Wholesalers, Inc. �io ED-OFF-'Ir Paul Bruder,Esquire - r f P R 0 T Attorney No.74412 Nicole Radziewicz,Esquires , Attorney No.314061 f4 ti 3 3 til RHOADS&SINO Square C�}t'�`BERL No G•0U1�1 ,1 P.O.Box 1146 � �MANIA Harrisburg,PA 17108 Attorneys for Associated Wholesalers,Inc. PLAZA K. REALTY, LTD., L.P. and IN THE COURT OF COMMON PLEAS OF PLAZA K. REALTY-CARLISLE, L.P. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION LAW V. NO. 12-5718 ASSOCIATED WHOLESALERS, INC. Defendant ASSOCIATED WHOLESALERS,INC. PRELIMINARY OBJECTIONS TO THE PLAINTIFF'S COMPLAINT NOW COMES, Defendant, Associated Wholesalers, Inc. ("AWI"), by and through its attorneys Rhoads & Sinon LLP, and files the within Preliminary Objections to Plaintiff's Complaint, as follows: 1. On or about September 14, 2012, Plaintiffs Plaza K. Realty, Ltd., L.P. and Plaza K. Realty-Carlisle, L.P. (hereinafter collectively "Plaintiffs"), commenced this action through filing a Praecipe for Writ of Summons in the Court of Common Pleas of Cumberland County. 2. On or about April 26, 2013, Plaintiffs filed a Complaint in the Court of Common Pleas of Cumberland County. 3. The Complaint contains two counts: Breach of Contract (Count 1) and Unjust Enrichment(Count II). 4. Pennsylvania Rule of Civil Procedure 1028(a)(4) allows for preliminary objections based on legal insufficiency of a pleading. Pa. R. Civ. P. 1028(a)(4). Preliminary 888126.1 Objections in the nature of a demurrer should be sustained where it appears that, based upon the facts of the Complaint, the law will not permit the plaintiff to recover. Papieves v. Lawrence, 263 A.2d 118, 437 Pa. 373 (Pa. 1970). Preliminary Objections to Count II (Unjust Enrichment) Pursuant to Rule 1028 a 4 5. Paragraphs 1 through 4 are hereby incorporated by reference as if set forth more fully herein. 6. In Count II, Plaintiff purports to set forth a claim for unjust enrichment, however, Plaintiff has failed, as a matter of law,to state a claim for which relief can be granted. 7. "It is long-.settled that `the quasi-contractual doctrine of unjust enrichment is inapplicable when the relationship between parties is founded on a written agreement or express contract."' Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 896-97 (Pa. Super. Ct. 2011), reargument denied (Aug. 11, 2011), appeal granted in part, 47 A.3d 1174 (Pa. 2012) (citing Schott v. Westinghouse Elec. Corp., 436 Pa. 279, 290, 259 A.2d 443, 448 (1969); accord Sevast v. Kakouras, 591 Pa. 44, 53 n. 7, 915 A.2d 1147, 1153 n. 7 (2007)). 8. In general, "the essence of the doctrine of unjust enrichment is that there is no direct relationship between the parties... [i]f there is a relationship in the form of a promise to, or for the benefit of, the plaintiff, he or she has a right to recover on the promise, and the existence of that right is not consistent with pursuit of a claim for unjust enrichment." Commercial/Indus. Realty Co. v. Shedlosky, 2009 WL 7810287 (Ct. Com. Pl. Cumb. Cnty. 2009) 9. Notwithstanding, Pennsylvania Courts have allowed both claims to proceed so long as they are pled in the alternative. Specifically, "... theories of breach of contract and unjust enrichment must be pleaded alternatively in order to allow recovery under the latter theory 2 where an express contract cannot be proven..." Lugo v. Farmers Pride, Inc., 967 A.2d 963, 970 (Pa. Super. Ct. 2009). 10. However, "there are some instances where a plaintiffs case is so clearly based on a contract theory that a demurrer will be sustained to an alternative count for unjust enrichment." Commercial/Indus. Realty Co. v. Shedlosky, 2009 WL 7810287 (Ct. Com. Pl. Cumb. Cnty. 2009) (granting demurrer on unjust enrichment claim where claim was based on written contract and statute precluded claim in the alternative); see also., Hudson& Keyse, LLC v. Patlatyuk, No. 08-5886 Civil Term (Cumberland Co. September 3, 2009) (Hess, J.) (action by assignee of credit card company against credit card holder for debt). 11. Presently, not only have the Plaintiffs failed to plead their unjust enrichment claim in the alternative, their claim is so clearly based upon the underlying Lease Agreement that a demurrer should be sustained. 12. The Plaintiffs attach as Exhibits "A," "B," and "C," the written documents that are at issue, which include the original Master Lease (Exhibit "A), the Sublease (Exhibit "B"), and the First Sublease Modification (Exhibit "C") (hereinafter collectively the "Lease Agreement"). 13. In their Complaint, the Plaintiffs extensively outline what they perceive as controlling provisions of the written Lease Agreement between the parties, which purportedly give rise to the Defendant's obligation to repair the floor of the leased premises. See Compl. ¶¶ 5-21. 14. Since the Plaintiffs' claims stem from their interpretation of the written and signed Lease Agreement entered into between the parties, a claim for unjust enrichment in 3 addition to, and not in the alternative to, their breach of contract claim is improper as a matter of law. 15. Furthermore, as noted, even if the Plaintiffs' amend their Complaint to plead unjust enrichment in the alternative, the claim is still subject to demurrer because there is a direct .relationship between the parties based upon the written Lease Agreement, and because the dispute emanates from the written Lease Agreement. 16. Accordingly, Plaintiffs' unjust enrichment claim should be dismissed pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4) as it is legally insufficient. WHEREFORE, Defendant Associated Wholesales, Inc. respectfully requests that this Honorable Court sustain its Preliminary Objections pursuant to Pa. R. Civ. P. 1028(a)(4) and dismiss, with prejudice, Count II of Plaintiffs Plaza K. Realty, Ltd., L.P. and Plaza K. Realty- Carlisle, L.P.'s Complaint. RHOADS & SINON LLP By. /�� � Pau J. Bruder, sq. Nicole Radziewicz, sq. One South Market Square, 2th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Associated Wholesalers, Inc. 4 CERTIFICATE OF SERVICE I hereby certify that on May 30, 2013, a true and correct copy of the foregoing Associated Wholesalers, Inc. Preliminary Objections To The Plaintiff's Complaint was served by way of U.S. mail, first class, upon the following: Richard B. Druby, Esquire Nestico Druby, PC 1135 East Chocolate Avenue, Suite 300 Hershey, PA 17033 Attorneys for Associated Wholesalers, Inc. 4aL&� 888242.1 l C" PLAZA K.REALTY,LTD.,L,P.,and IN THE COURT OF COMMON PLEAS OF Q PLAZA K.REALTY-CARLISLE,LP CUMBERLAND COUNTY,PENNSYLVANI& 7 Plaintiffs �M C r 7J CJ V. NO. 12-5718 � CD �CD T CJ ASSOCIATED WHOLESALERS, o .� INC. , Defendant CIVIL ACTION c: STIPULATION OF COUNSEL It is hereby stipulated by and between the parties herein, through their undersigned counsel,as follows: 1. Count II of Plaintiff's Complaint, asserting a claim of Unjust Enrichment, is hereby amended to be a count asserted"in the alternative" to the Breach of Contract count set forth as Count I of Plaintiff's Complaint; 2. Defendant's Preliminary Objections are hereby withdrawn and Defendant shall file an Answer to Plaintiff's Complaint, as amended herein, within twenty (20) days of the Court Order approving and adopting this stipulation as an Order of Court. NESTICO,DR RHOADS &SINON,LLP . - - - Richard B.Druby Vvenue, Paul J.Bruder "squire Attorney I.D.No. Attorney I.D.No.74412 1135 E. Chocolatuite 300 One South Market Square Hershey,PA 17033 P.O.Box 1146 (717)533-5406 Telephone Harrisburg,PA. 17108-1146 Attorneys for Plaintiffs (717)233-5731 Attorneys for Defendant, Associated Wholesalers,Inc. �A f PLAZA K. REALTY, LTD., L.P., and IN THE COURT OF COMMON PLEAS OF PLAZA K. REALTY-CARLISLE, LP CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs g V. NO. 12-5718 -n a w --: ASSOCIATED WHOLESALERS, r , r INC. Defendant : CIVIL ACTIONy.._ ' M a. ORDER °r AND NOW, this efeday of August, 2013,upon consideration of the attached Stipulation of Counsel, it is hereby ORDERED and DECREED that the attached stipulation is approved and adopted as an Order of Court. BY THE COURT: J. ✓ ichard B. Druby, Esquire, 1135 East Chocolate Avenue, Suite 300, Hershey, PA 17033 ✓ Paul J. Bruder, Esquire, P.O. Box 1146, Harrisburg,PA 17108-1146 , rVaw► 1 ., PLAZA K. REALTY, LTD., L.P. and i I+H"V 6P OF COMMON PLEAS OF PLAZA K. REALTY-CARLISLE, L.P. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION LAW V. NO. 12-5718 ASSOCIATED WHOLESALERS, INC. Defendant NOTICE TO PLEAD TO: Richard B. Druby, Esq. NESTICO DRUBY,PC 1135 East Chocolate Ave., Suite 300 Hershey, PA 17033 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER WITH NEW MATTER AND COUNTERCLAIMS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. RHOADS N LLP By: e Paul Bru r Nicole Radziewicz One South Market Square, 12th Floor P.O. Box 1146 Harrisburg,PA 17108-1146 (717) 233-5731 Attorneys for Defendant Associated Wholesalers, Inc. PLAZA K. REALTY, LTD., L.P. and IN THE COURT OF COMMON PLEAS OF PLAZA K. REALTY-CARLISLE, L.P. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION LAW V. NO. 12-5718 ASSOCIATED WHOLESALERS, INC. Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty(20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 1-800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomaraccion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMA- CION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 1-800-990-9108 Paul Bruder,Esquire Attorney No.74412 Nicole Radziewicz,Esquire Attorney No.314061 RHOADS&SINON LLP One South Market Square P.O.Box 1146 Harrisburg,PA 17108 Attorneys for Associated Wholesalers,Inc. PLAZA K. REALTY, LTD., L.P. and IN THE COURT OF COMMON PLEAS OF PLAZA K. REALTY-CARLISLE, L.P. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION LAW V. NO. 12-5718 ASSOCIATED WHOLESALERS, INC. Defendant ANSWER,NEW MATTER,AND COUNTERCLAIMS Associated Wholesalers, Inc. ("AWi"), by and through its undersigned counsel, Rhoads & Sinon LLP, files the within Answer, New Matter and Counterclaims to Plaza K. Realty, Ltd., L.P. and Plaza K. Realty-Carlisle, L.P. (hereinafter collectively "Plaintiffs") Complaint, and states as follows: 1. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted. 4. Admitted in part and denied in part. The averment that "[a]t all times relevant hereto, Defendant AWi leased a property from Plaintiff..." constitutes a conclusion of law to which no response is required and the same is denied. By way of further response, it is admitted only that AWi leased a property, located at 1706 Spring Road, Carlisle, Cumberland County, Pennsylvania, from the Plaintiffs beginning in 1996 until 2012. 886007.1 5. Admitted in part and denied in part. It is admitted that the document attached to the Plaintiffs' Complaint as Exhibit "A" is a Master Lease Agreement ("Master Lease"), dated January 2, 1976, between Frank and June Nardo as lessors, and Safeway Stores as a singular lessee. The remaining averments in this Paragraph are denied. By way of further answer, the Master Lease is a document that speaks for itself and any attempt on the part of the Plaintiffs to paraphrase or interpret the same is specifically denied. 6. It is admitted that the document attached to the Plaintiffs' Complaint as Exhibit "B" is a Sublease ("Sublease"), dated August 1, 1985, entered into between Safeway Stores, Inc., as sublessor, and Nells' Inc., as sublessee. By way of further answer, the Sublease is a document that speaks for itself and any attempt on the part of the Plaintiffs to paraphrase or interpret the same is specifically denied. 7. The averments contained in this Paragraph quote a portion of a document, out of context, which, being a writing, speaks for itself. Thus, no further response is required. In the event, and to the extent, that a response is deemed to be required, the averments in this Paragraph constitute conclusions of law to which no response is required and the same are denied. 8. The averments contained in this Paragraph quote a portion of a document, out of context, which, being a writing, speaks for itself, thus no further response is required. In the event, and to the extent, that a response is deemed to be required, the averments in this Paragraph constitute conclusions of law to which no response is required and the same are denied. 9. It is admitted that the document attached to the Plaintiffs' Complaint as Exhibit "C" is a First Sublease Modification Agreement ("First Sublease Modification"), dated November 4, 1996, entered into between Property Development Wholesalers, L.P., ("PDA") a California General Partnership whose managing partner was stated to be Pacific Realty 2 Associaties, L.P., as landlord, and AWi, as tenant. It is further admitted that PDA was Safeway's successor as sublessor to the Sublease dated August 1, 1985, when it entered into the First Sublease Modification with AWi. By way of further answer, the First Sublease Modification is a document that speaks for itself and any attempt on the part of the Plaintiffs to paraphrase or interpret the same is specifically denied. 10. It is admitted that as part of the First Sublease Modification, AWi became the successor to Nells' as sublessee under the Sublease. By way of further answer, the First Sublease Modification is a document that speaks for itself and any attempt on the part of the Plaintiffs to paraphrase or interpret the same is specifically denied. 11. It is admitted that the lease term was extended to December 17, 2012 as part of the First Sublease Modification. By way of further answer, the First Sublease Modification is a document that speaks for itself and any attempt on the part of the Plaintiffs to paraphrase or interpret the same is specifically denied. 12. It is admitted that PDA acquired title to the leased premises prior to entering into the First Sublease Modification. By way of further answer, the First Sublease Modification is a document that speaks for itself and any attempt on the part of the Plaintiffs to paraphrase or interpret the same is specifically denied. 13. The averments contained in this Paragraph quote a portion of a document, out of context, which, being a writing, speaks for itself, thus no further response is required. In the event and to the extent that a response is deemed to be required, the averments in this Paragraph constitute conclusions of law to which no response is required and the same are denied. 14. It is admitted that the Sublease became a Direct Lease between PDA, as lessor, and AWi as lessee, by operation of the First Sublease Modification. By way of further answer, 3 the First Sublease Modification is a document that speaks for itself and any attempt on the part of the Plaintiffs to paraphrase or interpret the same is specifically denied. 15. The averments of this Paragraph constitute conclusions of law to which no response is required and the same are denied. By way of further answer, the Sublease is a document that speaks for itself and any attempt on the part of the Plaintiffs to paraphrase or interpret the same is specifically denied. To the extent that this Paragraph contains allegations of fact, the same are specifically denied. 16. Admitted upon information and belief. As AWi was not a party to the transaction, AWi admits these averments only to the extent that they accurately reflect the terms of the Deed. By way of further answer, Exhibit"D" is a document that speaks for itself. . 17. Admitted upon information and belief. As AWi was not a party to the transaction, AWi admits these averments only to the extent that they accurately reflect the terms of the Assignment of Lease and Tenant Lease. By way of further answer, Exhibit `B" is a document that speaks for itself. 18. Admitted upon information and belief. As AWi was not a party to the transaction, AWi admits these averments only to the extent that they accurately reflect the terms of the Deed. By way of further answer, Exhibit"F" is a document that speaks for itself. 19. Admitted upon information and belief. As AWi was not a party to the transaction, AWi admits these averments only to the extent that they accurately reflect the terms of the Assignment of Lease and Tenant Lease. By way of further answer, Exhibit "G" is a document that speaks for itself. 4 20. Admitted upon information and belief. As AWi was not a party to the transaction, AWi admits these averments only to the extent that they accurately reflect the terms of the Deed. By way of further answer, Exhibit"H" is a document that speaks for itself. 21. Admitted upon information and belief. As AWi was not a party to the transaction, AWi admits these averments only to the extent that they accurately reflect the, terms of the Assignment of Lessor's Interest Under Lease and Tenant Leases. By way of further answer, Exhibit"I" is a document that speaks for itself. 22. Admitted that during the lease term, areas of the leased premises experienced various degrees of damage to the floor. Denied that AWi is responsible for repairing the floor damage, because it is established that subsurface degradation associated with improper and inadequate fill materials led to damage to the floor. 23. Admitted in part, denied in part. It is admitted that, on several occasions, the Plaintiffs notified AWi that it was their belief that AWi was responsible for repairing the floor. It is specifically denied, however, that AWi is in any way responsible for repairing the floor. To the contrary, the Plaintiffs are responsible for repairing the floor problems that were caused by subsurface degradation pursuant to the terms embodied in the Master Lease, Sublease and First Sublease Modification(hereinafter, "the Lease Agreement"). 24. Admitted in part, denied in part. It is admitted that the Plaintiffs, on several occasions, have demanded that AWi repair the floor, and that AWi has refused. It is specifically denied, however, that AWi is in any way responsible for repairing the floor. To the contrary, the Plaintiffs are responsible for repairing the floor problems, believed to be caused by subsurface degradation, pursuant to the terms embodied in the Lease Agreement. 25. Admitted. 5 26. Admitted with the clarification that it is not AWi's responsibility, duty or obligation to repair the floor problems. To the contrary, the Plaintiffs are responsible for repairing the structural floor problems pursuant to the terms embodied in the Lease Agreement. 27. Denied. AWi is without personal knowledge sufficient to form a belief as to the truth or falsity of the allegation contained in Paragraph 27, and, as such,the same is denied. 28. Denied. AWi is without personal knowledge sufficient to form a belief as to the truth or falsity of the allegation contained in Paragraph 28, and, as such, the same is denied. By way of further answer, AWi specifically denies any damages claimed by the Plaintiff. Strict proof of the same is demanded by the time of trial. COUNT I—BREACH OF CONTRACT 29. Defendant repeats and re-alleges Paragraphs 1 through 28 of this Answer as if set forth fully herein. 30. This Paragraph sets forth conclusions of law to which no response is required. To the extent that this Paragraph contains allegations of fact, the same are specifically denied. 31. The averments contained in this Paragraph quote a portion of a document, out of context, which, being a writing, speaks for itself, thus no further response is required. In the event, and to the extent, that a response is deemed to be required, the averments in this Paragraph constitute conclusions of law to which no response is required and the same are denied. 32. Denied. It is specifically denied that the Plaintiffs performed their obligations pursuant to the terms and conditions of the parties' contract by leasing the Leased Premises to Defendants. To the contrary, Plaintiffs failed to perform their obligations in fixing the floor and the underlying subsurface issues giving rise to the floor damage pursuant to the terms of the governing Lease Agreement. 6 33. Denied. It is specifically denied that AWi failed and refused to perform its obligations pursuant to the terms and conditions of the parties' Lease Agreement by failing and refusing to make repairs so that the property was left in good condition. To the contrary, the Plaintiffs have failed to perform their obligations in fixing the floor and the underlying subsurface issues giving rise to the floor damage pursuant to the terms of the governing Lease Agreement. 34. Denied. This Paragraph sets forth conclusions of law to which no response is required, and as such the same are denied. To the extent that this Paragraph contains allegations of fact, the same are specifically denied. Strict proof of the same is demanded by the time of trial. 35. The averments contained in this Paragraph quote a portion of a document, out of context, which, being a writing, speaks for itself, thus no further response is required. In the event, and to the extent, that such a response is deemed to be required, the averments in this Paragraph constitute conclusions of law to which no response is required and the same are denied. WHEREFORE the Defendant Associated Wholesalers, Inc., respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiffs, Plaza K. Realty, Ltd., L.P. and Plaza K. Realty-Carlisle, L.P. 7 COUNT II—UNJUST ENRICHMENT 36. Defendant repeats and re-alleges Paragraphs 1 through 35 of this Answer as if set forth more fully herein. 37. AWi is without personal knowledge sufficient to respond to the averments of this Paragraph, so the same are denied. In the event, and to the extent, that a response is deemed to be required, the averments in this Paragraphs constitute conclusions of law to which no response is required and the same are denied. 38. Denied. This Paragraph sets forth conclusions of law to which no response is required, and as such the same are denied. To the extent that this Paragraph contains allegations of fact, the same are specifically denied. 39. Denied. It is specifically denied that AWi failed and refused to perform its obligations pursuant to the terms and conditions of the parties' Lease Agreement by failing and refusing to make repairs so that the property was left in good condition. To the contrary, the Plaintiffs have failed to perform their obligations in fixing the floor and the underlying subsurface issues giving rise to the floor damage pursuant to the terms of the governing Lease. 40. Denied. This Paragraph sets forth conclusions of law to which no response is required, and as such the same are denied. To the extent that this Paragraph contains allegations of fact, the same are specifically denied. 41. Denied. This Paragraph sets forth conclusions of law to which no response is required, and as such the same are denied. To the extent that this Paragraph contains allegations of fact, the same are specifically denied. 8 WHEREFORE the Defendant Associated Wholesalers, Inc., respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiffs, Plaza K. Realty, Ltd., L.P. and Plaza K. Realty-Carlisle, L.P. NEW MATTER 42. Defendant repeats and re-alleges Paragraphs 1 through 41 of this Answer as if set forth more fully herein. 43. The Master Lease Agreement, the Sublease and the First Sublease Modification (collectively "the Lease Agreement"), evince the ongoing intent of the parties that the Plaintiffs remain responsible for making repairs to the floor, not the Defendant. The Master Lease Agreement, the Sublease and the First Sublease Modification are attached hereto as Exhibits "A," "B," and"C," respectively. 44. Defendant AWi entered into the Lease Agreement with the Plaintiffs for valuable consideration whereby the Plaintiffs were responsible for providing the Defendant with the full use and enjoyment of the Leased Premises. 45. While AWi was in possession of the property, latent subsurface degradation related to inadequate back-filling of the property led to damage to the floor area in the frozen food section of the Leased Premises. 46. Pursuant to the terms embodied in the Master Lease, Sublease and First Sublease Modification (collectively "the Lease Agreement"), this damage was the responsibility of the Plaintiffs, as landlord, to repair. 47. Specifically, Paragraph 7 of the Master Lease provides: Lessor's Repairs. Lessor agrees to keep the building structure on the leased premises (including without limitation, the roof, roof structures and supports, foundation and structural supports, walls, structural portion of the floors...) and 9 all heating, ventilating and cooling equipment...in good repair during the lease term... See Exhibit "A,"¶ 7. 48. Paragraph 4 of the Sublease incorporates the terms of the Master Lease, which necessarily includes Paragraph 7 as outlined above. See Exhibit`B,"¶4. 49. Paragraph 9 of the First Sublease Modification provides that, while the Master Lease has merged with the fee simple title of the premises, and that the Sublease is the controlling document, "[t]he terms and conditions of the Sublease shall include any provisions of the Master Lease that are incorporated therein." See Exhibit"C,"¶9. 50. Additionally, Paragraph 6 of the First Sublease Modification, addressing "Structural Floor Repair" states: Prior to the New Term Commencement Date, Landlord will repair the floor in the existing Premises where it has failed. Tenant shall allow Landlord access to the Premises and will remove its fixtures and equipment from the area where the floor has failed so that Landlord may carry out repairs. Landlord will also pour a new level floor over the repaired area. See Exhibit"C,"¶ 6. 51. Defendant AWi notified the Plaintiffs on multiple occasions that it was their responsibility to fix the floor damage. 52. Despite repeated demands by the Defendant to fix the floor damage pursuant to the terms of their contract, the Plaintiffs have denied responsibility and have failed to undertake .or complete repairs to the floor or subsurface. 53. AWi was deprived of the full and complete use of the Leased Premises due to the damage to the floor. 54. Defendant performed all of its obligations pursuant to the terms and conditions embodied in the Lease Agreement, including timely remitting rent payments. 10 55. Notwithstanding, the Plaintiffs breached their obligations under the lease agreement by failing to undertake repairs to the floor of the Leased Premises despite repeated requests and demands by the Defendant that said repairs be completed. 56. Additionally, Plaintiffs breached their obligations under the Lease Agreement by failing to pay for costs associated with a water main pipe break on the Leased Premises, and by wrongfully applying money belonging to the Defendant to the same. 57. Any costs or damages sustained by Plaintiffs were a direct result of Plaintiffs' own failure to perform pursuant to the requirements of its agreement with Defendant. 58. Accordingly, Plaintiffs have failed to state a claim upon which relief can be granted. 59. Plaintiffs' claims are barred by the doctrine of estoppel. 60. Plaintiffs' claims are barred by the doctrine of waiver. 61. Plaintiffs' claims are barred by the doctrine of payment. 62. Plaintiffs' claims are barred by the doctrine of accord and satisfaction. 63. Plaintiffs' claims are barred by failure of consideration. 64. Plaintiffs' claims are barred by the failure of a condition precedent. 65. Plaintiffs' claims are barred by material breach of contract. 66. Plaintiffs' claims are barred by operation of the statute of limitations. 67. Plaintiffs have failed to mitigate damages, which damages are denied. 68. Defendant reserves the right to amend its Answer and to assert any other affirmative defenses available to them at any time. WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed in its entirety, with prejudice. 11 COUNTERCLAIM 69. Defendant repeats and re-alleges Paragraphs 1 through 68 as if set forth more fully herein. 70. In addition to the floor damage, a water main break occurred on the Leased Premises in 2011. 71. Plaintiffs are also responsible for the costs associated with the water main break at the facility pursuant to the Lease Agreement. 72. Pursuant to Paragraph 7 of the Master Lease addressing "Lessor's repairs": Lessor agrees to keep the building structure on the leased premises (including without limitation, the roof, roof structures and supports, foundation and structural supports, walls, structural portion of the floors...) and all heating, ventilating and cooling equipment, wiring, plumbing...in good repair during the lease term... See Exhibit"A", ¶ 7 73. In addition, Paragraph 8 of the Master Lease, addressing "Lessee's repairs. Utilities", specifically references matters which require Lessee's repair responsibilities, and specifically excludes the matters referred to in Paragraph 7. See Exhibit"A", ¶ 8. 74. Plaintiffs have denied responsibility for repairing and absorbing the costs of the water main break, despite the terms of the Lease Agreement that obligate them to undertake such repairs, and despite Defendant's repeated requests that the Plaintiffs act in accordance with their obligations. 75. Notwithstanding Plaintiffs' knowledge of the Defendant's position in regard to the Plaintiffs' obligations to pay for the water main break, the Plaintiffs wrongfully retained $11,778.15 of the Defendant's monies, applying the same to the water main break repair costs. 12 76. The above stated-monies were received by the Plaintiffs after the Defendant inadvertently submitted a rent check for $36,198.00 after its lease term had expired. Rather than return the check, Plaintiffs applied $23,044.58 for Common Area Maintenance ("CAM") charges (which AWi does not dispute), but also wrongfully applied $11,778.15 for costs of repairs associated with a water main break. 77. Plaintiffs attempted to return the balance ($1,374.27) of the inadvertent rent payment less the CAM and water main repair charges, however Plaintiffs conditioned AWi's acceptance of the $1,374.27 on AWi agreeing that the water main repair charges were appropriate. AWi would not accept these conditions, so the total amount being wrongfully retained by Plaintiffs is $13,152.42. 78. As a result, Plaintiff has been unjustly enriched, and Defendant has suffered monetary damage due to its loss of monies wrongfully retained by the Plaintiffs. 79. Defendant is entitled to attorney's fees pursuant to Paragraph 24 of the Master Lease: Attorney's fees. If lessor or lessee files a suit against the other which is in any way connected with this lease, the unsuccessful party shall pay to the prevailing party a reasonable sum for attorney's fees, which shall be deemed to have accrued on the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. See Exhibit"A,"¶24. COUNT I-BREACH OF CONTRACT 80. Defendant repeats and re-alleges Paragraphs 1 through 79 as if set forth more fully herein. 13 81. Defendant AWi entered into a Lease Agreement with the Plaintiffs for valuable consideration whereby the Plaintiffs were responsible for providing the Defendant with the full use and enjoyment of the Leased Premises, and for making certain repairs to the property. 82. Defendant performed all of its obligations pursuant to the terms and conditions of the Lease Agreement. 83. According to the Lease Agreement, Plaintiffs were responsible for paying the expenses associated with the water main break that occurred on the Leased Premises in 2011. 84. Plaintiffs breached the Lease Agreement by failing to pay the expenses associated with the water main break, and by wrongfully retaining and applying $11,778.15 of the Defendant's money to the same. 85. Plaintiff has also wrongfully retained $1,374.27, which represents the balance of the inadvertent rent payment less CAM and water main repair charges, by conditioning the return of this amount on AWi's agreement that the water main repair charges were appropriately charged to AWi. 86. Consequently,the Defendant has suffered damages in the amount of$13,152.42. 87. The Defendant is additionally entitled to attorney's fees pursuant to Paragraph 24 of the Master Lease. WHEREFORE, Defendant Associated Wholesalers, Incorporated, respectfully requests that this Honorable Court entered judgment in its favor and against the Plaintiffs, Plaza K. Realty, Ltd., L.P. and Plaza K. Realty-Carlisle, L.P., for $13,152.42, together with interest, attorneys' fees, and any other relief that this Honorable Court deems just and proper. 14 COUNT II- UNJUST ENRICHMENT [In the Alternative] 88. Defendant repeats and re-alleges Paragraphs 1 through 87 as if set forth more fully herein. 89. Defendant AWi entered into a Lease Agreement with the Plaintiffs for valuable consideration whereby the Plaintiffs were responsible for providing the Defendant with the full use and enjoyment of the Leased Premises, and for undertaking certain repairs to the Leased Premises. 90. Subsequent to the expiration of the Lease Term, AWi vacated the property, but inadvertently submitted a rent check to the Plaintiffs.. 91. Instead of returning the check that was mistakenly submitted, the Plaintiffs wrongfully kept a portion of the same, in the amount of$11,778.15, for the purpose of applying said amount to charges associated with a water main break on the property. 92. The Defendant was not obligated to pay for the water main break. 93. Plaintiff has also wrongfully retained $1,374.27, which represents the balance of the inadvertent rent payment less CAM and water main repair charges, by conditioning the return of this amount on AWi's agreement that the water main repair charges were appropriately charged to AWi. 94. AWi would not accept these conditions for the reasons stated above, so the total amount being wrongfully retained by Plaintiffs is $13,152.42. 95. Consequently, Plaintiffs have inequitably accepted and retained the Defendant's monies. WHEREFORE, Defendant Associated Wholesalers, Incorporated, respectfully requests that this Honorable Court entered judgment in its favor and against the Plaintiffs, Plaza K. 15 Realty, Ltd., L.P. and Plaza K. Realty-Carlisle, L.P., for $13,152.42, together with interest, attorneys' fees, and any other relief that this Honorable Court deems just and proper. COUNT III- DECLARATORY JUDGMENT 96. Defendant repeats and re-alleges Paragraphs 1 through 95 as if set forth more fully herein. 97. Under the Declaratory Judgment Act, 42 PA. CONS. STAT. §§7531-7541, and as relevant here, "[c]ourts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." 42 PA. CONS. STAT.ANN. §7532. 98. The Declaratory Judgment Act also provides that "[a]ny person interested . . . whose rights, status, or other legal relations are affected by a statute, municipal ordinance, [or] contract . . . may have determined any question of construction or validity arising under the instrument, statute, ordinance, [or] contract, . . ., and obtain a declaration of rights, status, or other legal relations thereunder." Id. §7533. 99. In accordance with the provisions of the Declaratory Judgment Act, the Defendant seeks a declaration that the Plaintiffs are in breach of the terms embodied in the lease agreement due to their failure to repair and pay for structural damage to the Leased Premises and repairs associated with a water main break. See id. §§7532, 7533. 100, Paragraph 7 of the Master Lease provides: Lessor's Repairs. Lessor agrees to keep the building structure on the leased premises (including without limitation, the roof, roof structures and supports, foundation and structural supports, walls, structural portion of the floors...) and all heating, ventilating and cooling equipment, wiring, plumbing...in good repair during the lease term... See Exhibit"A,"¶7. 16 101. Paragraph 4 of the Sublease incorporates the terms of the Master Lease, which necessarily include Paragraph 7 as outlined above. See Exhibit"B,"¶4. 102. Paragraph 9 of the First Sublease Modification provides that, while the Master Lease has merged with the fee simple title of the premises, and that the Sublease is the controlling document, "[t]he terms and conditions of the Sublease shall include any provisions of the Master Lease that are incorporated therein." See Exhibit"C,"¶9. 103. Additionally, Paragraph 6 of the First Sublease Modification, addressing "Structural Floor Repair" states: Prior to the New Term Commencement Date, Landlord will repair the floor in the existing Premises where it has failed. Tenant shall allow Landlord access to the Premises and will remove its fixtures and equipment from the area where the floor has failed so that Landlord may carry out repairs. Landlord will also pour a new level floor over the repaired area. See Exhibit"C,"¶6. 104. There exists an actual controversy between the parties regarding the operation of the above-transcribed contract terms. 105. The Defendant will be harmed absent a declaration of its rights under the Lease Agreement. 106. A declaratory judgment will resolve the controversy between the parties. WHEREFORE, Defendant Associated Wholesalers, Incorporated, respectfully requests that this Honorable Court declare: that the Plaintiffs, Plaza K. Realty, Ltd., L.P. and Plaza K. Realty-Carlisle, L.P., are responsible for undertaking structural repairs to the property pursuant to the Lease Agreement, and, as such, that they are in violation of the Lease Agreement due to their failure to take responsibility for the floor repairs and water main break. 17 RHOADS & S1NON LL By: Z- Paih J. B der, Nicole Radziewicz, Esq. One South Market Square, 12th Floor Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Associated Wholesalers, Inc. 18 VERIFICATION Thomas C. Teeter for Associated Wholesalers, Inc. deposes and says, subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, that he is authorized to execute this Verification in his capacity as secretary , and that the facts set forth in the foregoing "Answer, New Matter, and Counterclaims" are true and correct to the best of his knowledge,.information arid*bUief. i Date: 7/26/13 $ , a E EXHIBIT A 621413.1 .. .SHOPPING CENTER. LEASE TFI1S 1:£ASF,is mode this 2n i d'' . dny of. 'January ;:. : I97c` between FRFdI 1 A. PIkkUO and J1 Q.; NAROq, `his wife J` cgeur and SArmiAy STORE'S, INCORPORATED,a Maryland corporation,lessee;on.:thr following terms and conditions¢ F. 1. Pretr.; es*. Tcim. Lessor hereby leases to lessee a portion of the-foiloWing-dexcr'ibed real' property in the City of Carlisle County of.+ Yorl, ''-State of Pennsylvania Being the same property described on the meies and bounds '.• ' _.`,..:: .:. ;:':` dest:ribtion attached as Exhibit "Oil'here to MF Rev. ate: on which property Iessor is to construct the Shopping n er.. (hereln called the "stropping center ')as shown on the plan dated NeYernber 1 3-r-1925--iiA ev�i�s�d January. 1.4, 1976 ; attached hereto as Exhibit-"A"-:Thep. ortioe of .the,s6 Opp ing .= center hereby leased (herein called the"leased-premises")is.designated "Safeway."arid-outlined in red on 'Exhibit."A",'and includes the building, or portion of building,,and related irnproven`ents to be constructed thereon by lessor in accordance with.the provisions of'this lease TO HAVE AND TO'HOLD the leased premises, together with all appurtenances;tot a,term;of tvtenty :(.:••20 )years comnencin' .1 .September. , 19 77. and ending 31"August ` 019 97 ' Store t1,?^� R-216(9.67) 2. [tens 'Lessie•ap sees to pay 1he fullnsving seals,by cheeks car drtifts payuhlc to 1 Q554r ': mXI mailett Ica lessor at Glen Avenue Extended, Red Lion,' Pennsylvania-. 17357, Or US"gl121aJ is writing hy'lcsubr. ' (a).: A Iixcd minimum rent to tlic sum of 'NIIIE THOUSAND ONE- HUNDRED SEVENTY—THREE AND It o/1.011 _ _----__ -OOLLAILS(S 9,173.00 _ )payable in idrinoc on the first day of cads calcodar munch during the term.Tau miulnnuu rc'rit for any fruc:ional culendor month shall be prorated - (tii A percentage lent it)the ansuuni,if any,by which one and one quarter` lxr cent( ' of glass SaICS n)adC by Itsset in the leased prcn1iitf in each!caltnd:lC yCat Uf tluc least � �:-.��' -' terin exceeds the•r!i'initnuu)rent for the same calcodar yaar.to picrecntage rent Shull be,paid by Iessco inn gross sass in exu sss of TEN AILLION FIVE,i(UiiOREQ'STXTY-SEEN TtlQU$AI-ID T140 HUNDRED .. DOLLARS .' �:_ • i (S 10„567,200.00 )hi pny calendar yr a. If Itasca necultics 11te It:ascd ptcni4cs tar a rr+tiinnat Ixrniil or.' a &:Alc116 Year.ixteenlap rcld fur mid I'ract3un:d.p+tdtrJ shall ix prorated hascd on the annuut'rtt orso+si sates` )nude by leiwa in Ilic teased prcmiccs during said rractiunat parind and the anuuat rate or mituinua real r�it raid fractianat peritxl. on tie baYurt lulu forty-il'ds day fi+Iti)winp each Oc m{)cr thirty-first during tltc tcrat and the last day tvf the lerio lessee shall snail tit kssar.at file place where tent is payahic,a siatcsticntsl owing gross sults'nuudc by-lessce in die leased preunis.s during the term uC Hilt taro fur the t chanter year or portion thercur last'preceding the dui date'of uKh statement together with any peracntagt'rent duc: Ttsc tern) grits,sates^us used herchi Shull not include any or 1 lit Toliuwpng:it)crediti or refunds in custonrirs rue mcrclundise returned of cWtauged;(2)iransrcis uranerchand»c from qie lcasetl premiss su utter store%or:; warchodism of tessce or its artilimcd cn)nipanics:(3)any sales taxes or other taxes imposed under any!awes ordinances,' orders of regulations,whciler now Or bercufter in raiet,alsta)it hascd upuu the gross uccilits of Ic-ssce or live sale Of Sale priest of mereltandisc;hid which iiutst he paid by Icssee,whether ar not culioctcd by tesecw from its ctiml) rs: (4) returns or merchandise lu shippers car ttumufactur;m:(S)the net:annum of.discutints allowed lo:+tiy a>iutmr" putsuut)t to any custunta+y'and rc:+smtabtc policy aJs+ptcd bykssce,incliding itt Sorel I iscaunls;but shit by w^.Iy of limitation,tilt not amount tat any discounts aliuwcd by tray uror resuhing[ruin the issuaner to etisu+nters or'tndiny; scampi car, other cvadeness of p+urehase floe itn+itediate or rutureexcli:ut;e for merchandise car otlicr tltti+y-urvalut:and' (fi)tnerdsandist or other things of value issued in to.'emption uf'snclt trading stamlis or other eYidenats orvwut,or_ Issued as a premium or othcrwisc In connection Will%any Saks pro lotion progrnta of icssee,Ltssoi•agrees us-hold.ill cunGd'enu.all sales and related infornutiilit furnished by h:ss.^e.Lessee makes no representatioin or warranty as to flit" ,alai which it expteis to main in the leased prtn}ises Fixed rlinimum rent_i:or,puted above As based on an annuai.''r.'ent'at the,rate: of THREE'' ARD 50/100 DOLU+RS ($3.50) per square-foot. If the size of lessee's .Store:building shot. vary from 31.050 square, feeti'then the fixed minimum rent shiil.l b'e aOtisted appropriatel' Lessee's store buildintl shall be taeasured'from the outside of exterior stalls. and th6,1�. • center of chmimn stalls and the loading dock shall. be i ncluded.if it is .enclosed. ?' n:c its.CIS 14.721 _IA'— PrFmTu o uS.iti. . 3.Ltsmr's title.7oning.Ussnt eovellailts that lessor has lawful title.to tita stropping center and Tull right Io, ittake this lea-4 rind that;tvJUAn thirty{ 0)days after receipt of lessons request,fessar will'proJido lessee with a. :. licensed survcyoeii reecut stim-y of life s)toppin„center.which Is:itbractriry to Iracee and eiltii;threat.evidenc». taUsfaetory to Icssco Gam n respousibia title ht:nianc tmnpany of ilia;lades of lessor's.titic to ttioslwppfii;eentec� Ltsuir to her ctridnauta that,at the tints of the rccnrt)ing of the;irurt form!case tc(errctf ii in paratraldt 21,tha• , slinpphig center will tic free fnaircn nnnhianta:txrept threw a;,tced to in writhip iy!asset aiiit that tlicro with iia no zoning n{othtc'nutinaaccs,nr tilln at oiler ntattem cr:crpt thaw agcced to lit tvriHiig hy.tc'siec,ivhlrlrwi)i'tcstritt'. I»sea's olseration of a rancml merc3nt{!c husliu:s(including tha salo of alcoholic bevciagcs If not prohibited by late grid 1(iciscc obtains alt'necc nary liccriscs and f or ptrutits at lessee';erpensc)1lit Urc 1eas:t!preml:t j of Uio rise of Ili.' coaniron areas of the simppiug center a provided for In this lease,anr}That so long as.lrssce is not in'dcfaul:Icssco ' -shall have quict-acid:pcaccfid poster-•Jnn of llhe lcnscd premises and enjoy all rfghir herein grantoil`ivttitout'' ' Interfere;I In the event of any vlolatIdn of duty of the covenants mdde by lessor in this paragraph,lesscc may caned thlrleua by notice to lessor.. d.�omman artias Ctrmplet)nn and oxpanslan of shopp)np roarer.A1)those parttons of Ehc shnpping center riot" ' drown as'614'1111C news oil Exhibit"A"shall be-conmron areas for the sole and e•xcluitve joint uaa of aliAliants-in ` tits sitoppitig center,their tustontcrs,Invitees and esiriihiyces,and Icsscr licroby grants to lossea,arid its cusloaters' Invitees seed emplayecs else regret of it ca:ciostve jnitit use of all of said eoi:unrnt tress and'any rnlargttncnt thOttof. Ussutag;rce's{Dint,at 1•issoes cxiuusc,ail tommon areas w411 be ritaintaiumd in cood rcpalr,kept claaq and I-cpt cicd.• of snow and lco and artequatcly llgltted'tvhiin's(ores 5i@ open(br'businesi.Lessor furlhcrigrees ihal.ill buildings in . the shopphtg center other than the building on the leased premises will In completed*s'showb on Exhibit'A"an ready(gt occupancy by not later than 1 September 77 that,"foil,o vine complettdn of construction of any portion of the sihoppin„center,trio slims and iirran„emnnts of said buildings sild •; +-• eonunannress(Jnduding parkirigareaz}wJll not be chang;.d tvittioul ltsscc's-%Yritten consent,Arid Itisl`if xitd buildings are not to-coniptiled or if said itzes of at'ranfcirteitts.'ire eitartgtd without Its=s written consent,ieas-te may cancel this jtasc by hotict to icssor.Lessor further agrees that If the'shopp)ng center Is eximuicd by,_owilers)itp,cnnlrol or `. lessor,or bgreemeut with a third party,all of lha.provisiona of this Icase tvlth respect ld the,shapping center and the imascd premises shall apply to ilia expanded aria,and rho parking to buiidtng ratio)n the.cxp anded'area of the stropping center will not be less than tilt ratio shown on Exhiibit"A". Ilia V!vistons of Pnragiaphs 4 and S'hrrcaf notwithstanding,In tho rpcnt furor Itas nail.•commcnccd Uta construction of all buildings in tho'shapping;triter including the bulidirm. on the)cased prcmtses on or before.: 1 APP" Fels teary.f. '•.. ”i 19 77. ,Icssco may eineel tlds,lcaso by notice'to icssor.The word: "corrirnenced the constructlon•'as used herein being dcflncd to mean the co*lotton of foundations of all such ' buildings �s Rev. 11.2 19 0•7a)g2 ' —2- Printed in U,C A• S.. Construction of common areas and lessee's building. Plans and specifications. Lessor' ' rnrens, at lessor's sole cost, risk and exlk-nse. to construct on 'the common arena a xign-tuw•er for lessee. sill parking and service areas, sidewulka, driveways and related.iMprnvcmcstz shovel nn Ex- hibit "A" tmd to conntruct on the leased prvinises M buiidinc to portion of abuilding, all'in accord- Once with pluns and slrecificntions to he isrc•l.srred at lessor's expense by LASS 5 1larpar (architt.•cl),and approved in writing krj• lessor and lesser.. Lessee rahtsll furnish lessor with drawings and/as sixteifieations scllina forth lessee's requirements to be in•' mrporated in the plans and specifierdions to be prepared by the architect.Upon approval by the pot- ties, the pluns and apecifics.tions shall become a part of this ienso ae thurigh set out in full herein. If, for any reason whatsoever, the parties fail to agree on plans and specifications eon or before 1 Septeeber , 19 16 ,either party say cancel this lease by notice to the other party within ainaty (90) days thereafter. lessee may have lire plans and specifications revised,at lessor's expense,If more than ninety(90)days elapse bulween lire date of approval of plans and specifications and the dale of commencement of construction of the building on the leased premises. t�Issor nartes to complete said construction work(which shall lnclede lessor's obtaining and furnishing to lessee of any cartifiesl* of occupancy or like document required by lawful authority)by not later than the date of eovsnencement of the term of this kease specified In paragraph 1. Loasee may enter upon the leased premises during the eorrnre'of construction to inspect the construction work and to install its fixtures and equipment and such entry shall not constitute acceptance of possession of the leased premises by lessee: 6. Acceptance of possession. Thetermof this lease shall not commence until lessee accepts , possession of the leased premises. Lessee shall accept possession of the leased premises when they ore ready for occupancy, thd—words "ready for occupancy" being defined for this purpose to mean . the date upon which the construction work referred to in paragraph S_is fully completed in accordance with the plans ■rd specifications and exclusive possession of the leased premises is delivered to lessee•.If lessee accepts possession of the lensed premises on a date other than the Commencement date specified is parsigruph 1. the term shall corgmence on the date lessee accepts possession but the expiration date specified'In paragraph 1 shall remain unchanged. If, for any reason whatsoever, the lensed premises are not ready for occupancy within ninety(90)days after the commencement date specified in paragraph 1, lessee may cancel this lease by notice'tg lessor.Notwithstanding the pro- visions of paragraph 2, the rent shall not commence,become due., or be payable until thirty(30)days : after the term of this lease commences or until the date lessee opens for business in the leased r premises,whichever shall first occur. : 7. Lessor's reports. Lessor arre•es ru.keep the building structure on the leased pre-nines (including.without limitrrtion,lireron(, roof structures and supports. foundation and strucluralauppor:a, walls, stnrrlurarl portion of the flexors, chimneys. skylichts, gutters,downspouts and exterioi door.) and all huntinit, vtntiltoting and canting equipment, 16rine, plunbinp., and plate class in good repair during the lease term and to paint the exterior when needed in eolorst arsoroved by lessee. If lessee is . deprived of the use of a substantlul portion of the leased premises during tine making of any reppirs, improvements at alterations by lessor under any provision of this iraae, lire sent shall be abated or' proliortionalely.reduce-d no-cording to the exte+st to which Iesnee is deprived of such rue. R-?t6 t1•s7) .3- U.S.A. 6. B. Lessee's rope lyS.Utilities: Lessee agrees to repair all damage to the leased premises caused by lessee's itse other than ordinary wear and tear and the matters covered in prrragraph 7 and..' . that on surrendering possession it will leave the leased premises in good'conditioti;`aliou;mce being-.* made for ordinary wear and lear,'damNge by fire,the elements or_other casualty, or resulting from lite' nets of persons otlicr than lessee, ar from defects therein,.being excepted: Lessee-may makosuch' repairs, alterations and- improvements to lire )cased premises as lessee deems desirable but lessee' agrees not tapennit any liens tostand ogninst lite.leased premises [or woik done or-materials furnished. Lessee may paint the interior of the building on the leased premises in such colors as'les nee elects. :. Lesseeshall have the exclusive"rfght to paint, erect or authorize signs in on or about the building on lite leased premises and may, at any time, remove signs*and color'effectri installed by lessee.-On,; surrendering possession lessee shall not-be required to restore the.lensed premises to their.condition. at the commencement of the term, and lessor'agrees to accept the leased premises with alterations aril improvements made by lessee. Lesser agrees to pay all charges for,electricity, gas,lieat,'water, tele phone and other utility services used by lessee on the leased premises. X 9. Lessee's fixtures.. Lessee may install in the leased premises such fixtures and equipment as leFsee deems desirable and all of said items shall remain lessee's property whether or not affixed or attached to the leased premises. Lessee may remove said items from the leased premises at any time but shall repair any damage caused by removal. 10. Compliance with lays: Lessee agrees not to violate any law,ordinance,:rule or regulation of any governmental authority having jurisdiction of the leased premises-and,'if required solely by �.. reason of lessee's type of btmjn rss, to make nonstructural repairs, improvements and alteraiioris to the . interior,of the building on the leased premises required by such authority. Lessoibgiees to'make all other repairs, improvements or alterations to the leased premises and the common areas required by-.: such authority. 11. Damagi by casualty. IE the leased premises are damaged by fire, the elements or artier. casualty, lessor shall promptly repair'all damage and restore the leased premises to their condition just prior to the damage.If lessee is deprived of the use of any substantial portion of the leased.premises e i ther by reason of said damage or during.restoration,the rent shall be abated or proportionately..reduced' ' accordingto thee xtent to which lessee is.deprived of such use. Lessor agrees to.keep in effect:on the leased premises fire insurance with extended boverage endorsement in an amount not less than eighty peceent(80%)of the insurable value of the building improvements thereon.'If lessor's insurance policy permits the release of others from liability Ior loss from casualties insured against, such rel-ease front liability is hereby granted to lessee to the extent of lessor's actual recovery of loss under such policy': . If the leased premises are damaged by fire, the elements or other casuatty'to the extent of seventy-five.' per cent(75%) or more of the insurable value'thereof, lessee miuy terminate this lease as of the date of the damage by notice to lessor within thirty.(30)days after said date. W. R-2 16.t9.67) '4- Mm,d in U,S.A:° 4. 12. Condemnation. if nny'portion of or interest in the shopping center induding,`uithnirt limy Itution, the leased piendxe•.s,the rommun nrvus,and the other Ixiildings ln.the.slrupping c:n .Of , shall' . It e hikes or d•.rmul;r.•d under any fit-jet of.vininent domain or any irmtsfer in Iicu thrtrnf,and such takigT, or damage renders lire lensed peetaisas uniwilnble in(tin judglnenf of lessee for lessee's ba„iherrx operations,Icasiiehay c:nu•al this Icaxt!bl•unlico to lessor'within thirty(30)duya lifter ouch taking or dirmap,, dcprlvcs lexroc of posaesxion of any portion of the leased premises rn of tiny other:rights of Icr:xce under thi::lensc:if this lease ix na;no terminniod, Icssor shall promptly rcsiore the ghoppinp eentertuOn nrchiteclural unit npnearly car-pmubie as proctieuble to the unit e0uting just print to.srrch hiking or-dumage and this tease shall continue,-but, commencing with-the date of which Icaxee is ' deprived of the itse of any portion of the lensed premiacs or of any rights under this lease,the rent shall be nbotod or'propnrtit,nutely redured uccording-to the extent to which lessee in depdved.of such- use of tights.Nothing contained harain shall prevent lessor and lessee from prpsecuting.claims'l any condemnation proceedings for.the values of their respective interests.'` 13. Assignment and subletting. I.enree may assign this lease of sublet the'whole.or any part' of the'leased premises.If-lessee assigns this lease, lessee shell*remain liable as a sareLp to 1e5Y0f for full performance of lessee's obligations. 14. . Deleted" 15. Indemnification. Lessee agrees to indemnify lessor against and save lessor harmless from all demands, claims, causes of action or judgments.,and all reasonable expenses'fncurred in inves. tigating or resisting the same,for Injury to person,loss of life or datnage to property occurringnn the leased premises and arising out of lessee's ltse and occupancy,except If caused by the act or neglect. of lessor,its contractors,agents or'employees,or Occurring-an the common areas If caused by the act or neglect of lessere,its contractors;agents or employees.Lessor agrees to indemnify lessee against and save lessee harrtrleas from all demands,claims,causes of action or judgments,and all reasonable expenses Incurred In Investigating or resisting the same, for Injury to person,leas of.life or damage to property occurring on the common•areas,except if caused by the act or neglect of lessee,its con- traders, agents or employees, or occurring on the leased premises-if caused by the`act or neglect of " lessor;its contractors,agents of employees,or occurring anywhere within-the shopping center prior to the commencement of the term.The parties shall maintain adequate insurance covering their obligations' , under this paragraph in respect of Injury to person and loss of'life and furnish each other with evidencl of such coverage. ..:.. . 16. f)efaulr. Ifle:seeahollbeindefauIt for mot ethen twenty(20)days after receipt of lessor's notice specifying such default, lessor may declare the term ended and ro=enterthe leased p. miseh with at without process of law.if lessor shall he in default for more than twenty(20)dnjs utter receipt of levitee's notice specifying such default, lessee may incur any.expense necessary.tri perfur.•n:my' . - obligation'of lessor specified in such notice and deduct such expense from the rents iherenfter'to -become'due. The..peiformance of each and every.cocenunt and agreement by lessor heicin c011toine3 . shall be n condition piecodent to Icaxur's right to collect rents or enforce tltit .lease. ,,..2 16 MO..2.69)12 "S' •.w.,,,.r in U.S.A..; 17. 'Opttans for•renewul. l..exsec.nt lessee`s option,by gtilinp.le-isot'sixty (60)$;)}x`written' _ rmtIcv t;rfnre the expirniion of the term or optima term then to effect,may exhen"d the term of this lease' for irix (6) sepaiate.rtnd additiunui perirxBn.of fire(5)years enc:lt tus"thv"sar)e terrns esict"caad#ions. except'. that lessee, by giving lessor one hundred aifihty (180)days written notice, m:ig cancel r+ny ' option term then in effect, 18. Holding over. If lessee reianins,in pns;session of the leased pramiseslnftcr the expir;ition. ' afthislcas+e,Stich cantinucrt'pa;sct Sinn Shull, if rot)t is pnid by less:ce Hnd acceptatl by tcsxcir, Create ri month-tn mvnfh tennncy onthelcrms heiein..:pecified,and said tenancy nnsy be terminuted'at an time- by"cither•party by thirty(30)days'notice to the other{saris., 19. Notices. Any notice provided for herein sball be given by registered orcert'sfied United States matt, postage.prepaid, addressed, if to lessor,to the person to whom the rent is lt�en"'gayahte at the address to which the rent is then muiled,.and,if to lessee-, to 1i"at' '6700 COlulabia Park ttoad, Landover, Maryland 20785. The Berson and"the place to which notices are to be mailed may be changed by eitfier pyprty by notice' to the other party. 20. Principal tenants. Lessor covenants that. by not later than ninety(9 0)days before ths.. lease eommencement•date specified in paragraph 1, lessor will furnish lessee tv"fth 'proof satisfactt lessee that lessor has entered Into leases vttth the following tenants for space In the shopping center in the*location shown.on Exhibit"A"and in nn amount not.Iess than the amts'unit set opposite each tenant's name,for a term not less.than the number of years set opposite its name: Drug Stare 4,000 twenty "(20) sq. ft. years Bank sq.1,500. It. 'twenty (20) .. - .. •" - - years. .. .. years ••' :. . Lessor covenants that each said tenant's lease will be noncancellable except for~cancellation rights based on default, casualty damage or condemnation which are-substantially similar'to such cancel- lation rights set forth in'thi§lease, the words "substantially simil'ar's being defined-forth is purpose _ to mean that the event, act,or inaction,which gives said.tenant a right to cancel its lease woistd`also under the terms of this lease give the herein lessee the right to cancel this tense if such event, act; or inaction wns experienced by the herein lessee'rather than by said tenant. Lessoi covenants that ail' of said tenants will have opened their respective stores to the general public for business by not later-' " than the lease commencement date specified ire paragraph 2. if any of said covenants are not fulfilled,,.,. lessee ntny, at its opt' either {a) notwithstanding the provisions"of paragraph G refuse to nccept::-' patcuessinn of the tcased'premises until snid'Covenants are fulfilled,or(t))'�acc t Or+ssessian.afthe ., lensed-"premises and open for business without incurring any obligation for minimum rent until said covenants are fulfilled: R-216(9.47)12 • red A. �.... ..." ;... If any.lease referred to obove is cancelled prior to the expiration of the term prescribed. Io.r that lease', except pursuant to a cancellation right substantially.similar (ns .defined nbove)' tolh Rev. cancellation rights contained .in.this lease for default, casualty damage or•condiennation,lcii e' 7-%4'" obligntion to pay minimum rent shall cease as of the date of such cancellation and lessee's obligatio proof tisfto, [or minima resit shall not resume until (•a)lessor st ll have furnished lessee wi �� lessee IM lessor has entered into a `ease with a similar tenant acceptable to,lessee for same Space in'the shoppinf center and for term of not less than the reinuinderof the torn.Eir_cified in such cancelled lease and (b) such similar tenarit shall have opened its store to the general public ; for business. The name of such similar tenant shnll then be deemed to be named as o principal tenant a6 listed above.and be subject to the provisions of this paragraph. 'If..such similar tenant has not opened Its store to the general*public for business within'one hundred eighty(180)'days after such principal tenant's lease Is cancelled, lessee may at its option cancel this lease by notice to lessor. 21. Remedies cumulative.' No remedy herein conferrer) upon or reserved to lessor or lessee shall exclude any other remedy herein or by law provided,but each shall be cumulative and in addition. to every other'remedy given hereunder or now or hereafter existing at.law or iII equity of by statute. ' 22. Automatic termination. Notwithstanding anything herein to the contrary, if this lease has not previously been terminated and the term of this lease has not commenced by five (5)years fro m"the date of'this lease, this lease shall thereupon automatically.terminate. 23.' Short form lease. This lease shall not be recorded but it is agreed that, upon request by either party,the parties willVXCCUte a short form of this lease which may be recorded by either party. 24. Attorney's fees. If lessor or 4essee files a suit against the-other which is in any way" connected with this lease, the unsuccessful party shall pay to the prevailing party a reasonable sum for attorney's fees, which shall be deemed to have accrued on the commencement of such.action and shall be enforceable whether or not such action is prosecuted to judgment. 25. Paragraph headings. The paragraph headings of this lease'are inserted only for reference; and in no way define,limit,or describe the scope or intent of this lease nor affect its terms and provisions. 26. Rights of successors. All of the rights and obligations of the parties under this leaiae shall bind and Inure to the benefit of their respective heirs, personal representatives,successors and assigns. R-216(9.67) •%- Prine.d in U.S.A.. a27. •C4:�.•IL�I Art!A t•t�th.:%a`� .i:. ' .. . ` �`-.':• ,:''' ' :°'�..�;::.'.. 17 21:31 lcu:lor• Ibr jazuee'a aharui or the actual cost` irrcur.Gd by. . lessor,it, IiijItirtu the- -- cut.ton areas, in keepinS sacs clean art clearea of or snow and lee PM in maintaining, the comoon areas in good repair, excluding; hb.t ever, the costs or any capitaliL_ble Improvements or-aciciitions to the co=. n tre @s.` Lessee shall so reimburse lessor.artcr receipt of satisfactory :evidu ce of said.co to aril the airount &0 from lessee, but not more omen than,once each ni5nth. IGSSee's strare shall beat" action of said costs, the IILUMraLor or which Traction sha1'1 be the buildiig;ami on the leased prern.tses and tty-- detto:tclnator or which shall be:tr22 total bulldirrg rmcp itt •-=•--- - 'Ct+• shappirXj center, incItMing the-btdldirtg, on the lcaaed pra:ti:ta:., as MXY.-In On tr:xflibit "A".L_•ssor agrees that in no event stal.l the atiounts pa .able by lcasce under this paramlPh in nav cider dar year c 'd 'TWO THOUSAND FIVtE HUNDRED AND HO/100 COLLARS ($2,500.00),. In the event any p2r_ ' centaye rent shall be payable to lessor under Paragraph 2_of this 'lease for any: . calendar year, all sums.paid by lessee under this ,paragraph during the sime calendar'. .....'year shall be.tcducted.from the percentage rent.otherwise payable to.lessor. +s TA%rZ! ti.. . ,N ':'' :.•; lessor at7ces to all all real property taxes an.ttr_ entire st~appi2>z; center .ml all improvenants thereon with possible reimburserrent by lessee of a portion thercor•a ...• hereinafter provided. For the purposes or this pararp aph, the first tau year lit::. which the building and cotrran areas shown on Exhibit "A" are fully corrsleted'a:d are included in the real property tax bill is hereinafter referred to as the 'rb^se year". If the real property taxes on the fully completed buildings and corr.,I)n areas _.as shorn on l*'Y•hibit "A".for any tax year while thin:lease rc ains- •in effect•crceed such real property taxes for the base year, lessee sl:tall relmb:.za - lessor for lessee's nlzre of such excess provided lessor requests,such rair.b. ei=nt not later than sixty (60) trays after the delinquent date for such taxes.` Lesse2's share shall be u fraction or such excess, the numerator of which fraction steal.]:•be. - ti�e building area on the leased premises and the dw.�3minator,of which.shill be tine total.buildim axMa in the shopping center,.including; the building on the leased premises, ap shown on 1 itr1bit "A". Lessee,shall so reimburse lessor.withit, thirty (30) days after receipt of m satisfactory evidence of lessor's- lrrent of such :: . taxes and the amount due from lessee. Lessee shall not b_ obliged to pay-ally portlorr of any penalty for delinquent payme4 t by lessor of•such taxes. Any,tax reimburs,=.nt by lessee hereunder shall be prorated as of the.terml.nation or expiration date or thi. lease, ' Lessor shall prortgstly notify lessee of any notice of irtcrepseti assessct nt aLainst the shopping; center by sending lessee a copy of the"notice. Lessor amve to cooperate with lessee if lessee elects to challenge the increased assessent. lessee's oblir,tti.on to reimburse lessor for lessee's share of any increased taaics.:Ls cotrJltiont cl trpxtn,lcssgr;}ravi.n� Ix3tified lessee and cooperated with lessee id arty, ; ctv.LllenLT to thr3 Increased assesst7rit. •In the event any-percentage rent shalt Ile payable to lessor under Paragraph 2 of thins lease for any calendar year, all sums ..paid by lessee under this paragraph during the. same.caiendar year shall be deducted• from the perceptane rent otherwise payable to lessor. t. . IN WITNESS VIVEP.EOF, the parties hereto have executed this 5hopping�-tenter,Lease:.- ' . r. •. • .r141.• .fir . .i <• .. .. .. • . r . .. f iC.vn /sea" .. ran A. ar • IS ea ar a, rts_ wr e L sor) :. SAFE14A` }..IttCOAPOPATEO: _. a. tarylan cdrporation) . (CORP0RATE SEAL) : SSr Slant 1 C res dent • .. Jam., _ '�- - 4Y�-r "+ is _ ssrstant et retgry.. .: (Lessee).. •4.h. n le AgiA' T4rALSrMMJl•1'►7.7:ISr+ REyni:ED• 0436X5 240 Woes A. - .�' ;�•ylAq ` (/ 311IU1N; • (,1 rOA40)S / is I• 3 iP�lE+PkW,[X:(+.� 'S:v,`' 3Ar EU%.'Y Y!��'30,435:F __K= .. ./ jj� r -. :._ + t.•F".A: '.TO . 10,E.0 SF zApg X• DoT p1VINl. I 13l W •�.�� .1, C�� - -Al 6AN� . .1'�O°9F v.uD�aa.r... R✓.a(S3' �"y'�. 4 '0�\4 op I -•t.. ..!AL ^MR 43.635:F. 4MIV:UIPI►E'• •Jn.v:IJ .ate.F– L 1 .- ' �.: f•�.. j' � mss"`_'%' � / � . 1°•ltd. �. y r�� �_ - ms's 4• S -�-;. E P L 1 ;,- sHerPlr IG cs�. ••/I U F - ftALEt1^. 30� 4ry,. K.%•u•a•.` :L EGA L�`DES C a YP TIO U :SEGIUUIUG47•APQ)lJT'I1!'TNECLUTMILWE*OF STATE. AIGU\V.Dy;Q013T.L' ., ►i,.'';: IG)J4�V.'U'AS''SP21UGRnAD, AY,LlW03 OF 1n8EflI-B PEU;Sn1D.P4)11T- 6E1uC??;U'65.5a E:, 4334FEE1• FQOM 1.N4L CE)JIE�LIUL'.0r- ST£.RQ.F.TTS GAP .::`:: AVE:I.I[!1✓r.T1�EIJCE ALCI.IG11hIJDS;OF D.CZF-7 BO.1V E.�l, l,l'ti•.58\tl OIS'fA>;c,t OF. 143.0(.`FLF_T 70 A . P,4)lI70A' E-'QCf. ALnUGSAUIE AUOLiUDS or R1Gh 84°q0V 1-70.0 :::`.•:': '' A DISIAIICE GF`'22cD.0 PnliL7. ,) U S'fERRE'fT:I GAP AVE>JUE'; 't:}1EUCE by A L)UE. lU STE.QR TS,GDP :;::`'• '-` AV.E..1JL)I- IJII°ZV.L APISU)J6E. OF '10.12 FI-F-T7n.AP4SU1:; 'TNEIJGE. av- .S;A1,71E.;SJG'35'W 'A GISIA1Jt,E.(D F 168.55 FLET. T.04'PO)111; .TI. 1,4CE. SA'Ml l )J09'2n'3A"\V:.A 01S7AUGE OF 102.35 'FF:1~T,Tn'AQAIUT AT'.I:AUDS oF�:P•O, ?J�°GL)111OG1C.,,-7V.E.1.1CL.ALOIJC; S*,� AIJDLhM.AS OF : MERLE.. . . : N01)3E.!,Nm0 D., O)A•UIGIC.,'1J'8r0A..E.'A O'1S'i.A'1jC1EQF,'135:?::5 ..;: FE O'IJ.P0111T IlJ"f'ul: CEU'f�R L11SE. OF S1 A7 E. )I1GU\VAy;ROU'TE: . .. . 3a,'K.3s<�\\!U AS $P.SZI�JG ��AO`;�'iiNF.110E.'8`Jn L) IJ 5 111 SSA tD•::;RO•Q D:. .. TNF:: . . FC�ILn\�1UG•.CCJURSES: S 29"3.'1;W A WSTJ. IJGE OF;5Q;I2F.E.Ll.-JC)4?t IT; S32''29'lV•ADIST.A IJCLOF.IOn.A'FEE.T`SO:A.P41)JT; S3'1'34'30'\\j A D)S1llUCE :0 Fil,0C) -0 ;LtT TO A PO)IJT; I11T A D)STAUGE •70A PC).I.1SY;`5:55 42'\V=D';'' G I STAUG.E, nF;1rO,q F.fiE.T. TO 'A POlU7 ;' S 0 A OISIA>SCE OF F�.E"(r'Tn%rl'N•.1 'P LAG E�.Q•F:•OEGy111111J V. • .• •� .. . . CO)JTAI)JI)JG- 4:54 I .ACRES ? �. . �. • � ••, ':• - :;: :;••` � '.:`,' .. ECCU 4EScQlrtlpld nu?1w15 s'iitlli6y:°HC3 Mum;12E luvED ALtO APPrMIJED Al L'p'u'11:n�:�tl'(LE�)UlUR4UG[ C.ORDOQpT10s� itlRti>:`!QR•.;O.p:.I2AfFb1JSFERGE:R`�ASSQCIA'iES ': �N:��• ' `, :• A.,i� S•. i67u Sj. C AMIP'MILL;9 �RIQRbEE�'RE.1"1:REIJCE• DE.EQ DQn1C14�JTAG E•U2C Q.bC6a0EE . C.�F OLf.OS;:.':'. ::OFFICE:CUMBERIaJU� GOl?IJTy CQl)AT �410L)SE. �.CARI.IS). .;PA;• ;' �\IERDG��\JE.�RLy •RA)UTAI.L` l5•• .. 1 � DV EaAGE V.E.4.Rly,' S W , EXHIB.A:VIUG•...K.G.�`}1161,i1VD`� Gc�MM•E.QC)A1.� . . - '�?.4:'�.'°°�:` .. EXHIBIT B sUB=SS. THIS SUBLEASE, made 'the 1st, day of August,`1985 between ,.' :. SAFEWAY STORES, INCORPORATED,-a Maryland corporation, hereinafter. referred to as sublessor, and NEILS' INCORPORATED, a .Peiinsylvania' corporation, 600 Arsenal•Road, Post Office Box'-1928, York; Pennsylvania 17405,. hereinafter referred to as sublessee; WiTNESSEt.Hr ' That, in of the mutual agreements herein: - contained, the parties hereto _do hereby covenant to' and'with each other as follows:. I. Premises. Term. . Sublessor does hereby sublease to . ;sublessee a portion of the shopping center on the. followiin Cum bef�pp�� land described property in the City of Carlisle, County of-"fork, State' ' of Pennsylvania:, designated as 1706 Spring Road,, Carlisle, Tennsylvania, to wits the property described in Exhibit "B"'.•,"to this sublease and Exhibit "B" to the. master. lease"referred to'in• Paragraph 4 of this Sublease, a copy of which is attached hereto. Together with sublessor's rights to use theshoppinq center common areas adjoining the above-described premises, a's'set forth. in the first sentence of paragraph 4 of the master. lease .'. : designated in Paragraph 4 hereof. The portion of the"above real property hereby leased (herein called the "leased premises") is outlined in REb on the History . Record plot plan dated March 22, 1978 attached hereto as Exhibit ' "CO and incorporated 'herein by reference.. ' TO WE AND'TO HOLD the above described leased' premises, together with the tenements, hereditaments,. appurtenances and easements thereunto belonging, at the "rental-.and upon the terms . �d'con$itions her i stated for a term of ELEVEN, (11) years t ne and one half �9 } 1 oc FrBB%tBH-+1.1+ months, commencing with the 21 day of Sc S er, 1985 and extending through the •31st day of July, •1997.•-,.Sublessor:. agrees that sublessee at his option may take possession of. the eased premises earlier than 14,410mr-1985 if the sublease .has been fully executed and sublessee desires .to.take possession: 2. Rent. Sublessee agrees to pay the following rents-, by. checks- or drafts payable to sublessor.and mailed to it•at Non-Operating Property Account-#1389,'" Safeway -Stores,:;:' " STORE #1389 DIV. Washin ton; D.Ci- LOCATION York,:P,ennsvania:. DOCUMENT DATE August .Ir 1985 . Page 1 of 14 ,pages (1389 Su 'leaselLS7) , } ; d. Incorporated, 201 4th. Street, .Oakland, California -94660, or as - designated in writing by sublessors (a).` A rent in the -sum ofOUSODRED EIGHTY-, 33 .F30 DRFi.D EIGH Y-, payable in advance on the first day of each• calendar month during the. term: The rent for any fractional calendar month shall. be prorated. '(b) A possible bonus payment in the amount,' if any, by which one and one arter qu percent 0 gross sales•-v �Pat_:.kx* efb eight;million. eight hundred saxcAigusand-4ight)r,_ and:.no%100,dollars:,($8-ii,80 CQ.Bor.Q@)_;made• by.sublessee- n•:the•.:-• 'leased-.premises in esc)r-oalendar near.:=: NO*. percentage rent shall' be paid by sublessee or gross sales.ln excess of TEN MILLION. FIVE HUNDRED SIXTY SEVEN THOUSAND TWO HUNDRED AND N01100 DOLLARS ($10,567,200.00) in any. calendar year If sublessee occupies the leased premises for a fractional period of a- calendar year, .the possible bonus payment for said fractional period shall• be prorated based on the annual rate of 'Iross sales made by sublessee in the. leased premises during said fractional period and.the annual rate of rent-for said fractional period. ` . On or before the thirtieth day following each December thirty=first during fhe`term and,the last day'of .the term* sublessee.shall mail to sublessor, at the place where rent 'is payable,. a statement showing gross sales made'.by sublessee in the leased premises during the term of this sublease for the•'calendar year or.-portion thereof last preceding.the due:date of such statement together with any bonus payment due The term "gross sales" as used herein shall not include any of the followingi '; (l) credits or refunds.to customers for' : merchandise returned. or- exchanged; (2) -transfers of merchandise from the .leased premises to other stores or warehouses=of. . sublessee or its affiliated companies; (3) any- sales taxes_ or other.taxes imposed.under any laws, ordinances, orders .or' .regulations, whether now or heieafter in force; upon or based upon the gross receipts of sublessee or the sale or sales price of merchandise and which must be paid by sublessee,; 'whether or .! not• collected.by sublessee from-its customers= (4) returns of merchandise to shippers or:manufacturers; '(5) .the- net. amount of discounts allowed to any customer pursuant to any: customary and . reasonable policy adopted by sublessee, including in'.such discounts,. but not byway of .limitation, the net amount of any discounts allowed by way of or�resulting from. the issuance to customers of trading stamps or other evidences"of .purchase for immediate or future exchange for-merch andise.* her.thiags of STORE #1389 DIV: Washin tong"D.C.. LOCATION York, Pennsv vania DOCUMENT DATE Au st 1 1985 Page 2 of 14 p ues . . (1389 Sublease/LS7) ...:' -7,r - value( and (0•-merchandise or other things.of` value'f slued in redemption of such trading stamps or other evidence -of value, or issued as a.premium or otherwise in connection with any sales promotion program of sublessee.. Subleases makes no representation or warranty as to the sales which it- expects to mak* in the leased premises. 3. Use., Subleases agrees that the leased premises shall be used only for a suparmarket.*.:_ - re'. . Sublease: agrees that sublessor niay, at any time d� regular business hours, enter upon.the leased premises for the purpose of inspecting the 4. •• Master Lease. -Sublessor covenants that sublessor's rights with regard'to the leased premises are set forth under the terms and provisions of that Shopping Center Lease,. dated 2 January, 1976 with First Shopping Center Lease Modification Agreement.dated 14 June 1976, entered into between FRANK.A. NARDO and JUNE A. NARDO, as lessor and Safeway Stores, Incorporated., a Aaryland corporation, as lessee (hereinafter referred to as `maater. lease" with the lessor therein hereinafter referred to as "master lessor"). This sublease is sub-ject to all of the terms and provisions (other than.payment of rent) of the master-lease and subleases agrees to be bound thereby. Sublessee acknowledges receipt of a copy of said master lease and any modifications (attached as Exhibit A to this sublease) and agrees that during the term of this sublease, sublessee will not violate any of the terms and conditions'of the master lease. Sublease* agrees to .hold sublessor harmless from all liability by reason of a breach of said master lease, which occurs as a result of any action or inaction by sublessee (whether or not said action or inaction is consented to by sublessor)' and subleases agrees, if requested by sublessor,. to undertake the defense of any action brought by the master lessor" under the master lease as a consequence of said breach or alleged breach of said master lease and subleases agrees to release sublessor from any loss sustained by sublessee' as a result of any such breach or alleged breach of said master lease: Subleases agrees that in the event the master lease is terminated before the expiration of the term of this sublease,- then this sublease and all of the rights and obligations of the parties hereto shall also terminate as of the date of termination of said master lease. Nothing herein contained shall be deemed to waive any of sublessor's rights under•Paragraph 9 hereof. . STORE #1389 DIV. Washin ton D.C. LOCATION York, Penns van 'a DOCUMENT DATE August 1, 1985 Page 3 of 14 pages (1389 Sublease/LS7) . 4L pt S. Maintenance. Alteration. Personal Property. Sublessee has inspected the leased premises and found them to be . in good condition and agrees to accept the same in a broom-clean condition. Sublessee agrees that sublessor shall be under no obligation to rebuild, replace and maintain -or make any repairs to the leased premises, or to the improvements thakion during the sublease term.' Sublessee ag=eea. at sublessee's expense, to assume all of the lessee's repair and maintenance obligations' under the provisions of tht master lease designated' in Paragraph 4 hereof. Sublessee agrees that it shall not make any alterations, additions or remodeling improvements or changes in the building situated on the leased premises without first obtaining sublessor's written consent. At the expiration or termination of this sublease, or any extension or-renewal thereof, sublessee shall leave the leased premises in good condition, allowance being made for ordinary wear and tearand damage by fire, or by earthquake, or by the elements, excepted, and sublessee shall not'be required to restore the leased premises to the condition in which the leased premises are in as of the commencement of the trim hereof, it,being agreed that sublessor- shall accept the leased'premisei with such• alterations cr any new improvements as may have been made pursuant to the authorisation contained in this paragraph. Sublessee may place or' install in or on the leased premises such fixtures and equipment as it or its subtenants or assigns shall deem desirable for the conduct of business therein. Personal property, fixtures and equipment,,used in' the conduct of sublessee's business or in the conduct of the business of sublessee's subtenants or assigns (as distinguished from fixtures and equipment used in connection with the operation and maintenance of the building improvements) placed by subleases or any subtenantw on or in the premises, shall not become a part of the realty, even if nailed or screwed or otherwise fastened to the premises, but'ghall retain their status as personality and may be removed by• sublesses or subleasee's subtenants or assigns at any time. . Any damage caused the leased premises,by the removal of such property shall be repaired by sublessee at its expense. Sublessee agrees that it will not permit any mechanics',, materialmen's or other liens to stand against the leased premises for work or materials furnished sublessee in connection with any alterations, remodeling, additions or new construction undertaken by sublessee on the leased premises. 6. Utility Charges. Sublessee agrees that it will pay all charges for electricity, water, gas, telephone and other utility , services used on the leased premises.. STORE 11389 DIV. Washin ton •D.C. LOCATI—ON--Yo-rkr Penns vanla DOCUMENT E August 1, 1985 Page 4 of 14 pages �t Sao ��t,t.,�..�T c•r�• . 7. ', Casualty Insurance.: It is understood that the. master lessor in 'the 'master lease designated in Paragraph 4 hereof, pr sublessor.pursuant thereto, keeps in, effect on the, leased premises fire-insurance with extended.coverage endorsement in. the amount 'of eighty percent (80%) of the insurable value of the r building improvements thereon. . Sublessor may be obligated to.. . . . reimburse master lessor for said insurance premium or •sublessor' may be obligat'.ed to pay the premium. if sublessor`is so obligated, sublessee agrees to pay 'to sublessor' as additional . rent, an amount equal to the premiums reimbursed or'paid' by sublessor for such insurance. Sublessee shall so pay sublessor'. within thirty "(30) days after receipt of notice-'from sublessor of the amount due... Should the leased premises become untenantable by reason of fire. earth ' • quake, accident, or other casualty, no' rent shall be paid while the same are being. repaired It is' further agreed that sublessor shall not be•liable' for..any. injury. i or damage to sublessee or to the agents,. employees or propeity of sublessee caused by defective fixtures or pipes, or caused b"- injury to the leased premises, or from' any other cause.`' 8.. Casualty, Condemnation. ':Sublessee agrees that in the.- event the leased premises are materially.. damaged by reason of fire, or by other cause, or in the event any portion of-the . : : shopping center is taken by any person or corporation, municipal,, public, private or otherwise, by condemnation proceedings : pursuant to any law, general_,• -special. or otherwise:or'by any transfer in lieu thereof, sublessor:may, at its'. ptioi►, .terininate this sublease by delivering or mailing to sublessee thirty (30), days' written notice of such termination: Such termination'shall discharge the ,parties hereto from'any further rights or obligations under the.provisions of'this sublease. Sublessor shall be the sole judge as to what constitutes material damage to the leased premises. Sublessor agrees.-that the condemnation or.' taking of a portion of the Shopping,Center'must be sufficient and of a reasonable amount to render the subleased..premises ': `. . " unsuitable for sublessee's business. 9. Default. Bankruptcy..' In case default is side .in 'the. -payment of any rent or ,additional.rents herein agreed'to be paid, or in'case' default is made in the performance of any' other covenant or. agreement contained on the part of sublessee..; ^and any such default shall continue for ten(IO) days after notice thereof 'in writing given by sublessor, its agents'or' attorney to sublessee,:or should sublessee file any petition or = institute any proceedings under The Bankruptcy..Act, either as.. such Act now" exists' or under any amendment thereof which.:may i:• hereafter be enacted, or under any other Actor Acts,either as a bankrupt, insolvent; .or petitioner; wherein or whereby sublessee STORE #1389 Div. 'Washin ton,' D.C. LOCATION York, Pennsy vania DOCUMENT DATE August 1, 198-9 Page-5 of 14.'pages (1389`Sublease/LS7) . - ' seeks to be adjudicated a bankrupt or to be 'discharged from any- or all .of.,its debts, or to effect a-plan of reorganiiation, .or seeks protection under 'the rehabilitation provisions of such Act,, or for any other similar relief, or if any such petition'or proceeding of the same or similar kind or' character be -filed or taken against "sublessee, or if any receiver.foi all• or.a 'substantial part of the business of sublessee be a:ppointed by any court,,, and such petition or proceeding. shall not be set aside or clismissed or the appointment of said receiver revoked within . thirty•(30) .4ays of. the"filing of said petition or•proceeding .br the appointment. of said receiver, or, if sublessee makes 'an assignment for the benefit of creditors or•permits any committee. or representative of sublessee s` creditors.to'.oversee sublessee's business, or should an attachment or-execution be levied.-against _' sdblessee'a fixtures or merchandise in the leased premises and- 'the same not be released within thirty (30) days after levy,` then, in any of such events, sublessor, at its option may: (a) Gure' such defaii1t with .the expenses incurred by sublessor,in ' curing such clefauita to be payable by 'sublessee. to sublessor as : &!Iditional rent'within thirty. (30) days following' the'•date. sublessor advises sublessee, in writing, of such expenses; an -(b)• _cancel and terminate this sublease .on the giving to`sublessee notice, in writing, and/or (c) may re-enter upon ;the leased premises 'either with or without process of law, and without cle' mand for p6ssession thereof,' and remove all'.persons; goods,. cliattels and equipment therefrom, using such force as is n4ecessary so to:do, •repossess grid enjoy the leased premises...' w1thout prejudice to any remedy or claim for arrears'.of rent or .: bxeach of covenant or agreement. Such property may be removed and stored in a public warehouse or elsewhere at the 'cost of and '• for the account of sublessee. • Should sublessor"'decide to", ' ro-enter, as herein'provided or should it take•.possession. ' pursuant' to, legal,proceedings or pursuant to--an notice provided by law, it may either terminate this sublease or it may, *from' time-to time, without terminating this,sublease, relet'-the leased, pxcemises or any part thereof for such term or terms 'and at such rental or rentals and upon such other terms and 'conditions"as sublessor in its sole discretion deems' advisable'with:the right.' tai make alterations and repairs to the leased premises. Rentals- rc-*ceived by sublessor from such'relettincj shall--'be applied: :. First, to the payment of-any indebtedness, other than, rent,,.due ' lie reunder from sublessee'to sublessor; second, to the payment of aa-�y cost of such reletting and to the payment of'the cost of any a3.:terations or repairs to the: leased premises; third,', to the peLyment .of rent due and unpaid hereunder; and fourth, the :rta�sidue, if any, shall be held by sub lessor`and'applie8.in. 'the Payment of future rent' as same may become .due and,'payable STORE #1389 DIV.• Washing£nri; D.C. -' hOCATiON York, Pennsylvania DOCUMENT DATE Au ust 1 1985 Page 6 of 14 page�T.. . (1. 389 Sublease/LS7). hereunder.- -Should such rentals received .from such "reletting_ during any" month be less than that agreed to be 'paid* during that month by' sublessee •hereunder, then sublessee `shall pay.-such 'deficiency to sublessor.:' Such deficiency shall be`.calculated and paid monthly. , Sublessee shall also pay sublessor; as soon as ascertained, the costs and expenses incurred by suublessor in such reletting or in the making of such alterations and repairs.' '-No such re=entry or taking possession of said leased premises. by sublessor shall-be construed as in`election.on its .part to' terminate this sublease, unless a written notice of such. Intention' be given by sublessor or unless.ahe termination be 'by decree by•court of competent -jurisdiction.'"".Notwithstanding any ; such reletting or termination, sublessor-may: -at any:dine thereafter, elect`to'terminate this sublease f6r'such previous •. breach. Should sublessor at any time terminate-this sublease for any-such breach in addition to any other remedy it- may have, it�" may recover from sublessee'all damages it may incur for .a Reason of such breach including• the .cost of recovering the leased premises, and" including.the excess, if any, of the amount of rent.: And charges equivalent to the 'rent reserved in.this' sublease for. the remainder of the stated term over the then reasonable rental' value of the leased premises for the remainder'of the stated term. Sublessee agrees to pay alI casts, attorney-'s• fees .and expenses incurred by sublessor in enforcing any of the terms,• . provisions, covenants and agreements herein,contained.'.'Na waiver by sublessor of any breach of sublessee's-covenants 'or agreements herein contained shall be con strued-as a waiver of any subsequent : breach of the same or of any other covenant or .agreement hereby` imposed upon sublessee and*'furthermore the acceptance of rental or other payments hereunder by sublessor with-knowledge of. a breach shall not be construed as a waiver of either that breach or any subsequent breach'of. the same or any' other covenant or•, ::,, agreement hereby imposed-upon',sublessee. The rights• of='s6lessor to terminate this sublease on-account of the default-of sublessee `. shall be governed by- the provisions of this Paragraph rither-than: :. ". by the provisions of any 'applicable state or federal law: 10. Indemnification.' Insurance. Sublessee 'agrees to indemnify and save sublessor harmless of and from' any and I. all liability, damage, expense, -cause of_ actio ' suits; claims or Judgments,resulting from injury to person or property occurring on the leased premises and arising out of sublessees use'and occupancy or'occurring on the shopping center--common areas- if caused by the act 'or.-neglect of sublessee, sublessee's agents;.,• employees, invitees or guests. Sublessee further igree. .that. sublessee will, at all- times during the term of this 'sublease maintain and pay.for comprehensive general liability:insurance STORE #1389 DIV.-.Washington, D.C. LOCATION York, Ponnsylvania DOCUMENT DATE August 1, 1985• . Page 7 of 14: pages . .(1389 SubleaselLS7). a :affording protection to the master lessor and''sublessorand ' sublessee, naming the master lessor and sublessor as "additional . insureds" under the policy or policies, for a .combined bodily injury and property damage limit bf:liability of hot less 'thari any'sum sublessor may be required to carry `under the`mastez lease, or. Five Hundred Thousand and No/108 Dollars ($500yp80.00) , -each occurrence, whichever is 'greater. Sublessee also 'agrees to maintain fire.and ,extended coverage-'iinsurance covering . sublesseeIs merchandise, fixtures- and equipment.in an amount equal to not less than eighty percent (80B?: of the actual cash.--:.. value thereof.- Sublessee further agrees to deliver to .sublessor, prior. to commencement of the. term hereof,,a certificate'or:' : certificates of an incurance'.company or companies satisfactory to sublessor, evidencing such insurance and that master•lessor-and sublessor are named as additional insureds on the comprehensive general liability insurance policy or policies. 1-1. ' Notices. Any notice provided for herein shall be' given by registered or certified United States mail; -' postage pr.epaid, ... . ' Addressed, if to sublessor, to:it_at the address to which 'the t. rental checks are mailed, and, if to sublessee,.to sublessee at the leased premises. The person to whom and7the place to'which notices are to be mailed may be changed from time to,time by : ,either party by written notice given to the other party. . 12. Assignment and subletting.• Sublessee agrees-that it' will hot.assign or transfer this sublease or further sublet the : whole or any part of the leased premises without first securing sublessor'.s written approval of the tenant.or .assignee or '.- sublessee' and the -terms and provisions of such assignment or further subletting. . Should sublessee either assign this* sublease` or.further sublet .the leased premises, sublessee shall . _nevertheless remain primarily liable to sublessor .for the fu_I1,' : payment of the rent and sublessee"s other obligations under this, : ; ' .. sublease 1 � Compliance •with l'aw's, Sublessee 'agrees'.throughout the' original ,term of this sublease pr. any renewal thereof,`to •comply- with,'all laws, ordinances, orders,. rules,. regulations.and requirements of all governmental authorities having jurisdiction. of the leased premises. 14. . Remedies cumulative.' No remedy..h e re in conferred upon' .or reserved to sublessor or to sublessee is intendi&to be exclusive of any other remedy herein-or by"law_provided•,•but each shall. be'cumulative and shall be in addition to .ever Y.other:. STORE #1389 .DIV.: Washin ton, D.C. LOCATION Yark, Pennsy vania . : DOCUMENT DATE August 1, ' Page 8. of 14 pages (1389 sublease/LS 7).•. .. ' WN remedy given hereunder or now or hereafter existing .at"law or in.'-'. . .equity or by statute.-:. .. Holding over: : 'If sublessee holds.over "or remains in` possession of the leased premises after expiration of this, sublease or,after any_sooner.termination thereof, ,without;any new lease of said leased. premises being entered;.'into':between the' parties hereto, or any option herein contained being exercised by written notices such holding over or-continued possession.shall, - if rent.•is paid,by sublessee, and accepted by.sublessor for or• during, any period of time sublessee holds over or remains in. possession, create a tenancy from month'to month*at;,the :last`:, monthly rental-and:upon the terms (other than length'of term,0 option for renewal)' herein specified, which may at any time he. terminated by-either party by fifteen (15) days' written notice .given to the other party. 16. Taxes. Sublessee,further agrees to pay, prior^to delinquency, any and all taxes and assessments -that may be , assessed or levied.on or 'against any of sublessee's personal` :property, fixturesi or,equipment placed-on or in the leased'"= premises,.and all other 'expenses .incidental to sublessee's use thereof and the operation of* sublessee Is business therein.. Sublessor agrees•to pay-to the master: lessor all.taxes and assessments upon the leased .premises. and common.'areas"that are: required of it by-the master lease, which are payable during the master lease term or any renewal thereof. Sublessee agrees .to -: reimburse sublessor, as additional rent, ari amount equal to all . ', property taxes and assessments so paid by sublessor'during the', '.: term hereof. Sublessee shall so reimburse' sublessor°within thirty (30).days.after receipt of satisfactory evidence of" . sublessor's'payment of such taxes -and assessments and the amount . .-.due from sublessee.. Sublessee shall not be obligated to gay`any portion of 'any penalty for delinquent payment' by sublessor of', such taxes and assessments.` Taxes assessed during the term b'ut. ' payable. in whole or in installments after, the.termination of this sublease, and .assessments•which are covered by"bond, shall be adjusted and psosated.and •sublessor shall pay•the prorated share , thereof for the period. subsequent to. the term, and sublessee shall pay' sublessor for the prorated share thereof for the term`," of this.subleaser Sublessee further agrees to pay to, sublessor an amount equal to",any excise, privilege, sales or.'other tax (excluding income tax) levied at any time during the.-term hereof, on the rentals or on any other sums payable by sublessee to sublessor under the terms of this sublease (including but not `limited to reimbursements of taxes and assessments, insurance ?'•". : STORE" X1389 DIV..:14ashin to D.C: LOCATION York, Penns vania DOCUMENT DATE August. l, 1985 Page 9 of 14- page&.. . (1389 SubleaselLS7) premiums.,. utility charges "and"common area maintenance costs,,..if any)-.or on'sublessor's receipt of 'said rental or. other.sums: 17. Common area maintenance charges. , Subleissoi agrees to.., •:- pay to the master lessor all the ,commozi area maintenance"•charges that are required of it by the.master lease, which are payable >' during the master lease term or any renewal thereof. .Sublessee agrees to reimburse sublessor, as additional rent, an amount ` ' . ' equal to all common area charges so paid by sublessor during the term hereof.,. Sublessee shall so reimburse sublessor within thirty { 0)...days.after receipt of satisfactory evidence of sublessor's payment of such common area charges and t)ie'amount due from sublessee. Sublessor agrees`nof.'t'o change the provisionsas stated-in paragraph twenty-seven' of the 6%ster lease. 18. :Late Charge. Sublessee hereby acknowledges that late Payment by ;sublessee to sublessor of rent and other sums due.: , . hereunder will cause sublessor.to incur costs''not contemplated by this sublease, the exact amount of which will be extremely difficult to ascertain. Such costs include, "but are­-not limited" to, processing and accounting charges and Late charge`s which may be imposed on sublessor by;the terms of the master- lease.referred to in paragraph 4 above and/or any other agreements which may involve the leased premises.' ` Accordingly, if. any installments of rent or"other sums due• from sublessee shall.not be .received by sublessor or sublessor's designee within ten (l0) days after such amount'shall be due; sublessee shall pay ta' sublessor a late charge,e+qual to ten'percent (IO%) of such overdue amount.: The parties hereby agree that such' late charge represents a. fair and reasonable estimate of the-costs sublessor.will incur by. reason' of late"payment by 'sublessee.' Acceptance of "such'late charge by • . sublessor••shall in no event constitute-a waive= of subles see.*s default with respect to such overdue amount,.::nor prevent.. • sublessor from exercising any of the other rights'and remedies : granted hereunder. 19. Rent Free Period. Sublessor hereby grants:to sublessee a "rent free period fora period of FORTY-FIVE..(45) "days ,from the date "of delivery of possession to sublessee,. for: the:purpo6e, of. restocking and preparing. for opening to the public'.of the leased..',,:� -premises. -Should the restocking and other preparation for: opening• to the public be completed in 'less than::FORTY-FIVE (45) : days, the rent free period shall expire on the day preceding the date when the premises are ,open•for business- to the 'general . ..' public; 20. ;, Options for Renewal. Sublessee at its. option may extend this lease for two (2) .separate and additional periods for'•,. " STORE #1389 DIV.: Washingtgn; D.C: LOCATION York*, Pennsy1ania DOCUMENT DATE August 1,. 1 5' Page. 10 of 14 pages, (1389 Sublease/LS7-) the dates indicated below on the same terms and conditions hereof: except rent by written notice*sent by registered. or, certified ' mail to sublessor at-least one hundred eighty (180) days before the expiration of the :original• 'term or option term then in effect. 'At the expiration of-the original term and the beginning ' date'of each of the option periods,, the fixed miizimursi utonthly; �.,rentai amount specified in" subparagraph '2(a) ,hereof shall he ths- following amounts': First Option: Aug. 1, 1997 to July 31, _2001 --$12,831:34/m6nth Second Option: Aug. 1, 2001 to July 31;. 2006.-.$1.4.,750.00/month : 21. Security Deposit. Contemporaneous with sublessee's." execution and delivery of this sublease"to sublessor, sublessee shall also deliver a security deposit in the amount of ONE , THOUSAND AND NO/100 DOLLARS ($4000.00") in cash or by ceitfied check to be used as a security deposit 'to secure subles see's ' performance and observance of the terms"; conditions., and Arovisions of this sublease: 'In the event of sublessee's ?- •default, sublessor•may 'use said deposit for..the payment of 'delinquent rent.or for any other sum due sublessor by .sublessee. ' or in reimbursement for any sum which sublessor may. expend by reason of any default of sublessee. In the alternative,: sublessor may declare the whole of said : deposit forfeited•as liquidated damages. if sublessee faithfully performs its :,' obligation under this sublease, then said security deposit shall be returned by sublessor to-.,sublessee one (1) year after date of . possession. . ..22. Purchase of Equipment. In addition to the leasing of the leased premises; sublessor hereby agrees to sell and. . sublessee hereby agrees to purchase .that portion of the equipment on the .leased+premises set forth in Exhibit "D" hereof. In addition •to the rent for•the leased.premises.set forth in Paragraph Second above, sublessee agrees to pay to*- lessor"for the equipment specified in Exhibit "D" hereof the total 'amount of ONE =HUNDRED SEVENTY _FIVE THOUSAND AND'NO/100. DOLLARS ($1 75,•008:00). : 1. 'A non-refuriAah�a deposit of TEN THOUSAND AND NO/-100 DOLLARS ($10,000.00) payable,by cash. or-certified,check payable to Safeway Stores, Incorporated, a Maryland corporation is to.be paid to'.sublessor upon execution of the sublease by' .5ublessee, . ' the balance to.be paid upon delivery of possession of the J. subleased'premises to sublessee by certified check: STORE #1389 DIV. Washington, D C f LOCATION York, Pennsylvania DOCUMENT DATE Auc u s t 11,19 85 - Page' 11 of 14ag • _ . (1389 Sublease/LS7): 2. It is the understanding of the parties that the equipment listed attached as`Exhibit "D" is a preliminary Tfst . and that the $175,000.00 purchase price ii-for•all of the: equipment:actually located in the e -with p t m the exception of Safeway signs',and datapoint.equipment.^ It it understood that there may be equipment on the .list: not physically located in the store. 23. Sublessee' 'has',inspected the property described in Exhibit *D*, hereof and acknowledges that sublessors only' . representation and/or warranty with respect'to said property_is 'that it shall be in operational order at the'time possession *of the,leased premises is delivered to sublessee. 'Sublessor warrants that all the property being sold hereunder is _free and clear of all encumbrances except current'` taxes; not yet delinquent.' current personal property taxes papable an the property ko be 'sold by sublessor.to-sublessee hereunder..shall be prorated as of the date eublesse's takes possession of the.premises. If' the. tax rate for the current tax year is'not established by the date, of closing, the proration shall be made an the basis of. the rate in -effect for the last preceding tai year. -- Sublessee shall .' assume and pay and hold sublessor 'harmless from any and all sales and/or taxes which-may be' incurred as a result of transaction, Sublessee shall pay- all applicable sales or use'taxes on the ~' sale of the'items' referred to above. De'iet paragraph 24 'from. this agreement. 24. -iub1eaSer-4.s-the-3essee-at operating-stores-zTr . ehambersbn - -- xg and-Schrewsbesrry;-'!'ennsyip-aA13, 3h't�"'iK"tA75 Z�Tit''' . sub loos SON-make c-a-determnna ties-te-diecefi iaeo-t ie-opesatssxr-of- bheae-trxa-ateres-an-Safeway-groeezy-supermarkets-and-fuxt'her :` determines-that-these two-stores-wiii-continne-to-pperatm-as- grocery-supermarkets-,-sublessor-agrees-to-thE-�piTDt,YSAg': : . .. • A:--Ae-the-tie-a-�ee�siaa-is-mode-tc-rtase-osie-�r-bo#.�-.Erf • tktese-at ores!-anb essee=Miii-be- sroraided-a-f3ist-�ig#�t-o-f_afer- ta-subtease-ene-or-both-o£-these-properties.--A�period-c>•f-.tee:- 'days-will-be-allewed-ter-st�b3essee-to-reaietrthc-grc rtit+s�to='. detef ine-the-offer-he-Mick►ea-te-maicc-spec�fyzng-iii-the-tei�as- and�ecnditions-o£-the-offer: .'. -B:--Sabicsaar=Mii�-provide-tersts£73,css+ee-a-�.istiag-o�-..�. ' ' equipment-that-will-be-availaksic-in-the-property-aid-itlfvrntafi on STORE #1389 DIV. Washington, D.C. LOCATION York, Pennsylvania is DOCUMENT DATE August 1, 1985 Page 12. of 14' pages 0389 Sublease/LS71 on-the-terse-of-the-master-3 ease-eikd-tie-t rt ,Vim_ i#re= aster C.--Witk�in-ten-dates-aftcz�xree�pt-�rF-satr3iss�re's-ifer-, '. sublessor-will-notify-aubleesee-df-t crf£er- s-accegt�ctxi, ,- , if-a'o„-proceed-to-enter-into-a-raibieaee-on-the=p ity;=- The-above-rigkt-oil-affair-Lis-eeftal-tioned-eft-_tbias_su'blwa.e-bleiltw-in" full-sEarae-sad-e€€eat-w Cheat-defatiitrn t+ne-tize-tie-Y-idhL-t=- offer-ia-undertakes►*-- . 1 . . .Delete paragraph 25 Q, 'f5:--8nbieasee-has-expressed-Oconcern-thet.011 ssor-may- ntve- obligations-to-emp3opeea-under-var-loss'nnian'agzeDln2nt'S -'74Ft�Y";.:;: , ft:ai-execution-tif-thia-siibl ease-by-t�irpazti.es-ttiz�tc;�•snbiasse� • � ". • is-grevided-ten-{le}-days-in-which-to- %Mav-t_herw- are-no-union-obligations-cf-subiessor-tbW aaII11rAMTUWttr assb3eaaee-that-he-waa3d-find-bb�ea'C2caabi.4.--.S�i�rle$see-i.s-grarited . a-ten-{}e}-day-peried-to-investigate-with-the-eoopesatiem-e>f-n- SaftKay-8n+pieyee-these-anion-obligationz:--if-3nring-this-their Jay-period-sub lessee-desires-.to-cancel-this-subiaass—betmuse'tT-a ssub,lesser-uhien-ebligatfenT-he-may-do-ae-by-groviding°to sub lessor-notification-by-eeatti€tied-Mai-.-retarn=.zeceipt-that-he- 3.s-aawaalllRq-this-sublease:=--if-the-stibiease-is-car►cei3ed-by. sub lea s ee-for-this-reason;-ail'deposYt:s'Pala'by—''bUl lbsee-wi3:i-iDe- refunded-promptly-by-subie aser-and-this-agreement-will-be-of-ntr- force-or-effect:-.r:.• Sublessor agrees to pay to Richard Nagle Real Estate: {Richard Nagle Real Estate 508/Bob .Yost in (Coldwell Banker) 50%). a real estate commission in the amount- of sik:percent (6.8) per year of the fixed minimum rent paid by. sublessee for the first six.years, of this sublease. The real estate commission will be paid once a year upon submission by.Richard Nagle Real Estate of'a statement for commission earned, which statement is to be submitted on or about 1 June of each year during the six year period.. . If rent is not bollected ferm-the sublessee. =:c='::':.r r•;rr`^``. �7:= ..... a real estate commission.pis not payable to.agent, 27. Document execution and chance. It is'*understood ,and agreed that until this sublease_is fully executed and.delivered ':. by 'both sublessee and by the authorized corporate officers of.: sublessor, there is not and shall not be an agreement of any kind; 'between the 'parties hereto upon which any commitment, 'undertaking or obligation can be founded.. It is further agreed that this sublease contains the entire agreement between,:the parties hereto STORE #1389 DIY. Washington; D.C. LOCATION York, Pen�yania... DOCUMENT .DATE Au crust 1 L1985 Page 13 of 14. `peg _ (1.3R9 Sublease/LS7.)-:. and that in executing this sublease, sublessee, does not rely upon:. any' statement, promise, or representation :not herein. that this sublease once executed and del ivered.shall.'not. be.` modified;. changed or altered in any respect except by. a writing ;: executed and delivered in the same manner as required for this sublease; that all covenants,'agreements aril conditions shall apply to and bind and inure to the benefit `of- the successors. •. . an assigns of sublessor and ,ttie. heirs, personal representatives, the' successors and/or.-assi- gns of sublessee, if assignment'is`consented to by sublessor; that herein the singular. includes the plural and one gender includes the other' gender.. ::. d. 28. Paragraph headings. The paragraph:'headings of this sublease are inserted only for reference and id no way define, limit, or describe, the scope or intent of this sublease nor affect its terms or.provisions. IN WITNESS WHEREOF, the parties hereto have executed this :sublease as of the day.and'year' first above written: 'SAFEWAY STORES, INCORPORATED (a Maryland corporation) Y ORES, ,� Its Assistant Vice President Q �� 0 LU (1 192 D eal) BY • , �' ,ljgA�p Its Assistant Secr ry . * ' (Sublessor)..' NELLS"INCORPORATED (a Pennsylvania corpo ration) - .. '.nf'e . , .. .. ... :•fig`-•'•�•.�•.�•.sb�f.�.. .. BY C�L,LC Lc. /A T is / lta, 71, •.'0. • Its S Ec�ree�4 r. (Sublessee) . STORE #1389 DIV: Washington, D;C: . LOCATION .York, Pennsy van a DOCUMENT DATE August 1', 1985 ' page..14 of. 14 pages (1389 •;Sublease/LS7).• EXHIBIT C i FIRST SUBLEASE MODIFICATION AGREMUNT 3 3 'THIS FIRST SUBLEASE MODIFICATION AGREDANT CAgreemcvej is made and 4 entered into this 44,k •. day of Alga&,&r 1996, 'by- and between PROPERTY. s DEVEMPMENT ASSOCIATES, a California general pa me ship ('L andiord'I and ' 6 ASSOCIATED WHOLESALERS,INC..a Pennsylvania corporation('Tenant'): " - 7 RECITALS a This Agtarnent is made with re&rcac a to the following facts and objectives: - 9 " A. Sa&way-Storas. Incorpofated, a Maryland corporation ('Safeway'] and NeWs 10 Incorporated,a Pennsylvania corporation('Nedra'),entered into a sublease dated August 1, 1985 11 (the'Sublease)for the real property(the'Premises')commonly known as-1706 Spring Road, - 12 Cariiate.Penasylvan*and more particularly described in the Sublease. Landlord is the successor 13 to Safeway as sublessor under the Sublease pmwant'to an Assignment of Lease dated 1,4 October 28, 1988, a copy of which is attached hereto as'ExhRdLA. Tenant is the successor to 1s Nedrs as sublessee under the Sublease, 16 B. Landlord and Tenant have agreed to modify the Sublease to expand the Pranises, 17 extend the term,and amend the rent,all as set forth below. . . is NOW,THEREFORE,inconsideration of the foregoing facti and for good and valuable , 19 consideration,the receipt and adequacy of which am hereby acknowledged,Landlord and Tenant 2o' . bercby amend cad modify the Sublease as follows: 21 L Expansion of Premises. 22 1.1. Landlord shall construct an addition to the Premises of approximately 7,770 square 23 feet (the 'Expansion Area").as shown on the site plan attached hereto as Exhibit H and 24 incorporated by reference. Upon 111 execution of this Agreement,Landlord will cause plans and 23 specifications for the Expansion Area and a new mansard roof for the existing Premises to be 26. pr'epar'ed (the "Plans'}. Tenant shall either approve. disapprove, or make ieeommiexh bdor s for 27 ctianjj�Wldtat-th M`f30):days of receipt theseo£ Failure to approve, disapprove. or make 23 elation for lunge within said thirty(30)day period shall consftft approval of the Plans as 29- submitted. Any disapproval or recornmendatioo for change shall specify with particularity the reason 30 therefor. Upon submissaa of any disapproval or recomi reatdstion for change, the pectic shall 31 mutually.consult in good 5ith to establish approved Plans for the proposed work . No material 32 deviation shall be made from the approved Planswithout the pFior written approval of Tenant. 33 1.2. The construction costs for the Expansion Area shall include the following: n the 34 final construction contract price for the Expansion Area;(u) architectural and engineering fees; 35 (ii)permits and development fees;and(iv)construction period interest(d}10%per annum. After 36 .. completion of the Plans,Landlord will bid out the wont to at least three reputable contractors and 37, upon receipt of the bid prices will provide them to Tenant together with the cost of the-.other 39 items that make up construction costs for the Expansion Area. 39 1.3. In the evert that the construction costs forithe Expansion Area exceed SS22,600• 40 plus the cost of the new roof(the RTpset Price") (the difference between the two being the 41 'Excess Cost'),Tenant shall have the following options: n pay.to Landlord the Excess Cost in . 42 cash upon the New Term Commencement Date(as defined below);(u)terminate this Agreement; 43 or(u)have the amain rent set forth in Paragraph 3 be"increased by 14.4•/.of the Excess Cost 44 Team shall maize its election by written notice within tea(10)days after delivery by Landlord,,of 43 the construction costs. In the event the construction cosh for the Expansion Area exceed . 46 $6S0,000 and Tenant elects to have the rem increased as provided in clause (iii) above, then 47 Landlord shall have the right to terminate this Agrecau t upon written notice to Tenant. In the 48 event this Agreement is terminated as provided above,the Sublease will continue in firli force and 49 effect and unchanged. If the coat of construction of the Expansion Area is less than the Upset C,'1flt.R1253177s6177sGLu4.I)t)C Family No.W77as•o1 lon6rs6 Carsut TA . Tie 1 of4 i j, r I Price then the excess amount shall be applied toward the cost,of the new roof far the Premises '2 pursuant to parag=h 1.6 below. • 3 :1.4. The New Terns Commencement Date shall be the date- Landlord delivers:' 4 possession of the Expansion Area to Tenant with the construction of the Expansion Area s -substantially complete: a I.S. Effective on the New'Term Commencement Date the feria"leased premises" as 7 used in the Sublease shalt include the Expansion Area 8- I.6: In connection with the construction of the Expansion Area,Landlord shall re-roof 9 the Premises with a new rubber roof with a 20 year manufacturers warranty and a 10 year to installation warranty. The new roof will be installed prior to the Now Term Commencement u Date 12 2.. ' . Sublease Tem 13 pjl1 of the Sublease is amended to provide that the term of the Sublease'shall be'. 14 extended for a period of fifteen(15)years fallowing the New Term Commencement Date . . is 3. - Rent. t6' Para=h 2(a)of the Sublease is amended to provide that,commencing on the New Term 17 Commencement Date,the monthly rent shall be as follows: A. • :��<: >:.,,.,;... . . .mot. � -:•.u:: .�.'�qth afTerat�altoWrng2+tcvwK �� k` �" 'ferny�ommenscemerrtDat�F �� x�utsi �„y" w .60 H..9 292.00 61 120 S11,414.00 121 & S23,769.00 ; 1st Extended T $26,622.00. ez i rs15'~. 2nd Extend erm . S29 816.00 3rd Ext eel Term S3 3ftOO 19 'Murirnum rent for any partial calendar month immediately following the New Term 20 Commencement Date-and/or prior to the expiration(or sooner termination)of the Sublease Term 21 and immediately prior to and following arty change id.minimum rent shall be prorated based on a 22 thirty(30)-day month 23 4. Bonus Payment. 24 p_uaiwh 2W is amended by deleting the first two sentences in the first grammatical. r_ 2s paragraph thereof and substituting the following: 26 "Tenant shall pay to Landlord a possible bonus payine'ru a arty; in an' a mount by 27 which'one and one-hall percent(1-1t2%)of gross sates made by Tenant from the 28 leased premises for each calendar year exceeds the.:minimum-rent paid.by Tenn/. 29 for-such-calendar year." 3t1 5. Opooni for ReaewaL . '....,., :.` tGfi _ - 31 Pg h 20 of the Sublease is amended to provide that the Tenant shall have tw6(2)five 32 (5)-year and one(1)four(4)year,eleven(11)month,twonty-nine(29)day options to renew the 33 Sublease following the fifteen year term set forth in P,ara1 above, at a minimum monthly 34 rent as set forth in P&MMUh 3 above.. i fbarws wm t: . ; as 6: StrmeWn l Floor Repair. 36 Prior to the New Term Commencement Date,Landlord will repair the floor in the existing » Premises where it has failed. Tenant shall allow Landlord access to the Premises and will remove C.VKS17WAr 77$aAi&DOC '' Facility No.89.778") 10116196 Cubs PA Part of V, i Its ftan and equipment 8om the area where the Boca has Mad so that Landlord may`carry out i repsica. Landlord will also pour a new level Boor bvet the repaired ire:. 3 % P4v Rent Shan. 4. TOMM arm that as or the Now Terra C=m mement Date its.pro im aham of s common aeon c9com ad real estate tan the total of such cgxn es for the ' s Shopping C,emtw. T 8. Reoatualstesta ca. s ft3smou Of the Sublease is hen*amended to provide that foDowinq the re-rooft of ! the Promises,Tana:>ea2 have the reVonsebility for manttcosnca,repair aril repjvxn eft(when 14 nocesstry)o€thi toetef of the Prsra'isca. 11 •!. Ratltkstiea;Dbnct Lease. : 12 F=qx as herein modified the Sublease shall rem- is ill force and effoct said is hereby ' . is ratified'and affirmed. I.andltocd has previously acquired foe simple title,to-the Promises. The 14 patties hereby agree that as a result of Landlord's acquisition of fee simple We to the Premises, is. the&Hesse is now a direct lease betwem Lmndlord and Tenant mad that the Master Lease has is merged with the fee simple title of the Premises. The terms and coocfit was of the Sublease sh all 17 iacletde say provisions of the MM w Lease that arts iocotpocated+henna, is 20. . Salem ers and Asdgms. i! Each and as of the covenants„terms,agreem ats VW gWptions of this Agreement%W. 20 to td to and bind and inure to the benefit of the su=essors-and/or assigns of said partite hereto... 21 Notwithstsoding anything to the contrary herein or is the Sublease,Landlord hereby conwnts•to 22 the Bather sstble tti mg of the Premises to Neeirs. In no event shall any such fiudw subletting' 2s rellev+e Tetaat of its obligttiow hereunder or under the Subku% nor shall•suds =sent be 24 de exned a waiver of any of Laodlorft rights under the Subtease, including the right to approve is nay assignmast or Sucher subletting by Temat. ; 26 IN VaTNESS WHEREOF, the parties.hereto havei'et*citted this AV=nent on the 27 respective data set opposite their signattues'bedow,but thei Agreenu t on behalf of such party n shaft be deemed to have bow dssed as ofthe dale first above written. ' 30 LANDLORD: 31 : 32 PROPERTY DEVELOPMENT ASSOCIATES„ ' 33 a Catife mia general partnership , 35 By Pac&Realty Ash a istas,L.P. 3t r a Delaware limited partnership,. 37 its Managing Partner 3: 3: By M&T Resources,Ltd:, ;:' 40 a Delaware earporntioia' :e 41' its General Psit , : a 44 Data November 4 .19% By t5a..•err + ,;►•: Qp,, _ K David W. Rams 4s • Les Yice President - • 4s + CiTtsttlStT7iW17#at.#tllllOC t '' - Prre7iq No W77i6-0i' 10 &M ' ' Cai;�ier.PA tp304 3 ASSOCIATED WHOLESALERS,INC., .. 4 a Pennsylvania corporation s . T. Date:I&J4 946 .By,_ �icet 8 - 10 (4p�Q priced ate):. 11 its 12. i C-V=1 77861T786IMA DOC 10/16196 FaeiliryN&89.778641 PsWe 4 0[4, Carlisle.PA Facility No.89-7786-01. Carlisle,P=myIvania ASSIGNMENT OF LEASE [SEE ATTACHED] EXHIBIT A . CERTIFICATE OF SERVICE I hereby certify that on Augustm_ '_Ile ` 2013 a true and correct copy of the foregoing "Answer, New Matter and Counterclaims" was served by means of United States mail, first class postage prepaid,as follows: Plaza K.Realty,Ltd.,L.P. Plaza K. Realty-Carlisle,L.P. c/o Richard B. Druby,Esq. NESTICO DRUBY, PC 1135 East Chocolate Ave., Suite 300 Hershey,PA 17033 *MadIndovoin Richard B. Druby,Esquire OF THE PROTHONOTARY Attorney I.D.No 61904 NESTICO DRUBY,PC G1 11 3 SEP —It P41 3 7` 1135 East Chocolate Avenue, Suite 300 Hershey,PA 17033 CUMBERLAND COUNTY (717)533-5406 PENNSYLVANIA (717)533-5717 fax RDrubyghersheypalaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAZA K. REALTY, LTD., L.P. and PLAZA K. REALTY-CARLISLE, LP Plaintiffs, No. 12-5718 V. ASSOCIATED WHOLESALERS, INC. CIVIL ACTION-LAW Defendant. JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Defendant Associated Wholesalers, Inc. C/O Paul J. Bruder, Esquire Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, PA 17108-1146 You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default of judgment may be entered against you. NADR By, quir 190 1135 East Chocolate Avenue Suite 300 Hershey, Pennsylvania 17033 Tel: (717) 533-5406 Fax: (717) 533-5717 Dated: 1 Attorney for Plaintiff 1 Richard B. Druby, Esquire Attorney I.D. No 61904 NESTICO DRUBY, PC 1135 East Chocolate Avenue, Suite 300 Hershey, PA 17033 (717) 533-5406 (717) 533-5717 fax RDruby@hersheypalaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAZA K. REALTY, LTD., L.P. and PLAZA K. REALTY-CARLISLE, LP Plaintiffs, No. 12-5718 V. ASSOCIATED WHOLESALERS, INC. CIVIL ACTION-LAW Defendant. JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER AND ANSWER TO COUNTERCLAIM WITH NEW MATTER REPLY TO NEW MATTER 42. Plaintiff incorporates the allegations of its Complaint as if fully set forth herein. 43. Conclusion of law to which no response is required. To the extent a response is required, the Master Lease Agreement, the Sublease and the First Sublease Modification are documents of record which speak for themselves. To the extent that Defendant misconstrues or mischaracterizes those documents, the allegations are specifically denied. In further answer, 2 Plaintiffs incorporate Paragraphs 12 through 15 of their Complaint as if fully set forth herein. 44. Conclusion of law to which to response is required. To the extent a response is required, the allegations are denied. In further answer, to the extent that Defendant implies that it had no duty of repair as part of its "full use and enjoyment of the Leased Premises", that implication is denied. 45. Admitted in part and denied in part. It is admitted that, while Defendant was in possession of the property, damage occurred to the floor area in the frozen food section of the Leased Premises. Defendant's characterization of"latent subsurface degradation related to inadequate back-filling of the property" is vague and incapable of being answered and is therefore denied. 46. Conclusion of law to which no response is required. To the extent a response is required,the Master Lease Agreement, the Sublease and the First Sublease Modification are documents of record which speak for themselves. To the extent that Defendant misconstrues or mischaracterizes those documents, the allegations are specifically denied. In further answer, Plaintiffs incorporate Paragraphs 12 through 15 of their Complaint as if fully set forth herein. 47. No response is required as the Master Lease speaks for itself. To the extent that Defendant misconstrues or mischaracterizes that document,the allegations are specifically denied. In further answer, as part of the Sublease, which became the controlling lease, Defendant agreed that it was responsible for repairs and maintenance and that Plaintiffs "shall be under no obligation to rebuild, replace and maintain or make any repairs to the leased premises or to the improvements thereon during the sublease term." See Sublease, Paragraph 5. 48. No response is required as the Sublease speaks for itself. To the extent that 3 Defendant misconstrues or mischaracterizes that document, the allegations are specifically denied. In further answer, Plaintiffs incorporate their response to Paragraph 47 as if fully set forth herein. 49. No response is required as the First Sublease Modification speaks for itself. To the extent that Defendant misconstrues or mischaracterizes that document, the allegations are specifically denied. In further answer, Plaintiffs incorporate their response to Paragraph 47 as if fully set forth herein. 50. No response is required as the First Sublease Modification speaks for itself. To the extent that Defendant misconstrues or mischaracterizes that document, the allegations are specifically denied. 51. Admitted that Defendant took the position that it was Plaintiffs' responsibility to fix the floor damage. Any implication that Plaintiffs had the responsibility to fix the floor damage is specifically denied. 52. Conclusion of law, to which no response is required. To the extent a response is required, the allegations are specifically denied. In further answer, Plaintiffs incorporate their response to 51 above. 53. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 54. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 55. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 4 56. Conclusion of law to which no response is required. To the extent a response is required,the allegations are specifically denied. 57. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 58. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 59. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 60. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 61. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 62. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 63. Conclusion of law to which no response is required. To the extent a response is required,the allegations are specifically denied. 64. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 65. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 66. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 5 67. Conclusion of law to which no response is required. To the extent a response is required,the allegations are specifically denied. 68. Denied. Defendants' assertions in paragraph 68 violate the Rules of Pleadings under the Pennsylvania Rules of Civil Procedure. Pursuant to Rule 1030, all affirmative defenses shall be pleaded in a responsive pleading. Further, pursuant to Rule 1032, "a party waives all defenses...which are not presented either by...answer or reply..." Therefore, to the extent that Defendant has failed to assert any alleged affirmative defense, they are hereby waived. WHEREFORE, Plaintiffs request that Defendant's New Matter be stricken with prejudice and that judgment be entered in favor of Plaintiffs and against the Defendant. ANSWER TO COUNTERCLAIM 69. Plaintiffs incorporate the above paragraphs and the paragraphs in their Complaint as if fully set forth herein. 70. Denied as stated. It is admitted only that a water main break occurred on the Leased Premises in 2011. 71. Conclusion of law,to which no response is required. To the extent a response is required, the allegations are specifically denied. 72. No response is required as the Master Lease speaks for itself. To the extent that Defendant mischaracterizes or misconstrues that document, the allegations are specifically denied. In further answer, Plaintiffs incorporate Paragraphs 12 through 15 of their Complaint as if fully set forth herein. 73. No response is required as the Master Lease speaks for itself. To the extent that Defendant mischaracterizes or misconstrues that document, the allegations are specifically 6 denied. In further answer, Plaintiffs incorporate Paragraphs 12 through 15 of their Complaint as if fully set forth herein. 74. Conclusion of law to which no response is required. To the extent a response is required, the allegations of paragraph 74 are specifically denied. In further answer, Plaintiffs incorporate the allegations of their Complaint as if fully set forth herein. 75. Conclusion of law to which no response is required. To the extent a response is required, the allegations of paragraph 75 are specifically denied. Plaintiffs applied $11,778.15 to the costs associated with the water main break as part of Defendant's obligations set forth in the Lease Agreements. 76. Denied as stated. It is admitted that Defendant submitted a check for$36,198.00. Pursuant to Defendant's obligations under the lease, Plaintiffs applied$34,822.73 for common area maintenance ("CAM") charges which included the $11,778.15 associated with the repairs of the water main break. That portion represented Defendant's liability for those charges under the Lease Agreements. 77. Denied as stated. Plaintiffs returned the balance of$1,374.27 to the Defendant after Plaintiffs applied the charges for amounts owed by the Defendant. AWi refused to accept the balance. Plaintiffs remain ready, willing and able to pay the balance of$1,374.27 to Defendant. The remaining allegations are denied. 78. Conclusions of law to which no response is required. To the extent a response is required, the allegations of paragraph 78 are specifically denied. 79. Conclusion of law to which no response is required. To the extent a response is required, the allegations of paragraph 79 are specifically denied. COUNT 80. Plaintiffs incorporate the above paragraphs and the paragraphs in their Complaint as if fully set forth herein. 81. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. In further answer, Plaintiffs incorporate their responses to Paragraphs 44 and 47, above, as if fully set forth herein. 82. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 83. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 84. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 85. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. In further answer, Plaintiffs incorporate their response to Paragraph 77, above, as if fully set forth herein. 86. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. 87. Conclusion of law to which no response is required. To the extent a response is required, the allegations are specifically denied. WHEREFORE, Plaintiffs demand that Defendant's Counterclaim be dismissed with prejudice and that judgment be entered in Plaintiffs' favor and against Defendant plus costs and attorney's fees. 8 COUNT II 88. Plaintiffs incorporate the above paragraphs and the paragraphs in their Complaint as if specifically set forth herein. 89. Conclusion of law to which no response is required. To the extent a response is required, the allegations of paragraph 89 are specifically denied. In further answer, Plaintiffs incorporate their responses to Paragraphs 44 and 47, above, as if fully set forth herein. 90. Denied as stated. It is admitted that at the expiration of the lease term, Defendant vacated the property. It is admitted that they submitted a check which funds were used to satisfy its CAM charges. The excess amount was returned to the Defendant, who refused to accept the returned amount. 91. Denied as stated. In further response, Plaintiff s incorporate their answer to paragraph 76, above as if fully set forth herein. 92. Conclusion of law, to which no response is required. To the extent a response is required, the allegations are specifically denied. 93. Conclusion of law, to which no response is required. To the extent a response is required,the allegations are specifically denied. In further answer, Plaintiffs incorporate their response to Paragraph 77, above, as if fully set forth herein. 94. Conclusion of law, to which no response is required. To the extent a response is required, the allegations are specifically denied. 95. Conclusion of law, to which no response is required. To the extent a response is required, the allegations are specifically denied. WHEREFORE, Plaintiffs demand that Defendant's Counterclaim be dismissed with 9 prejudice and that judgment be entered in Plaintiffs' favor and against Defendant plus costs and attorney's fees. COUNT III 96. Plaintiffs incorporate the above paragraphs and the paragraphs in their Complaint as if fully set forth herein. 97. No response is required as the Declaratory Judgment Act speaks for itself. 98. No response is required as the Declaratory Judgment Act speaks for itself. 99. Conclusion of law, to which no response is required. To the extent a response is required,the allegations are specifically denied. 100. No response is required as the Master Lease speaks for itself. To the extent that the Defendant mischaracterizes or misconstrues the document, the allegations are specifically denied. In further answer, Plaintiffs incorporate Paragraphs 12 through 15 of their Complaint as if fully set forth herein. In still further answer, as part of the Sublease, which became the controlling lease, Defendant agreed that it was responsible for repairs and maintenance and that Plaintiffs "shall be under no obligation to rebuild, replace and maintain or make any repairs to the leased premises or to the improvements thereon during the sublease term." See Sublease, Paragraph 5. 101. No response is required as the Sublease speaks for itself. To the extent that the Defendant mischaracterizes or misconstrues the document, the allegations are specifically denied. In further response, Plaintiffs incorporate their response to Paragraph 100, above, as if fully set forth herein. 102. No response is required as the First Sublease Modification speaks for itself. To 10 the extent that the Defendant mischaracterizes or misconstrues the document, the allegations are specifically denied. In further response, Plaintiffs incorporate their response to Paragraph 100, above, as if fully set forth herein. 103. No response is required as the First Sublease Modification speaks for itself. To the extent that the Defendant mischaracterizes or misconstrues the document, the allegations are specifically denied. In further response, Plaintiffs incorporate their response to Paragraph 100, above, as if fully set forth herein. 104. Conclusion of law, to which no response is required. 105. Conclusion of law to which no response is required. 106. Conclusion of law to which no response is required. WHEREFORE, Plaintiffs demand that Defendant's Counterclaim be dismissed with prejudice and that judgment be entered in Plaintiffs' favor and against Defendant plus costs and attorney's fees. NEW MATTER 107. Plaintiffs incorporate the above paragraphs and the paragraphs in their Complaint as if fully set forth herein. 108. Defendant has failed to state a claim upon which relief can be granted. 109. Defendant failed to mitigate its damages, which damages are denied. 110. Defendant's claims are barred by the doctrine of accord and satisfaction. 111. Defendant's claims are barred by lack of consideration. 11 112. Defendant is obligated under the lease to repair the damages as alleged by Plaintiffs. 113. Plaintiffs are entitled to set-off and recoupment based upon Defendant's breach of contract, among other reasons. 114. Defendant's claims are barred by consent. 115. Defendant's claims are barred by estoppel. 116. Defendant's claims are barred by waiver. 117. Defendant's claims are barred by the doctrine of payment. 118. Defendant's claims are barred by the failure of a condition precedent. 119. Defendant's claims are barred by material breach of contract. 120. Defendant's claims may be barred, in whole or in part, by the applicable statute of limitations. 121. Defendant's claims may be barred by the doctrine of laches. 122. Defendant's claims may be barred by the doctrine of unclean hands. 123. Defenses reserved pursuant to Pa.R.C.P. 1030(b) and all other defenses not required to be pleaded are hereby reserved. WHEREFORE, Plaintiffs demand that Defendant's Counterclaim be dismissed with prejudice and that judgment be entered in Plaintiffs' favor and against Defendant plus costs and 12 attorney's fees. Respectfully Submitted, NESTICO DRU , P.C. Date: q �� By: chard B. Drub/, Es uire Attorney 1.D. N 904 1135 E. Chocolate Avenue, Suite 300 Hershey, PA 17033 (717) 533-5406 Telephone (717) 533-5717 Fax RDruby@hersheypalaw.com Attorneys for Plaintiff 13 VERIFICATION I,Ellen Smoll,verify that the statements made in the foregoing document 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. §4904 relating to unsworn falsification to authorities. 1 Eller moll e CERTIFICATE OF SERVICE I, Richard B. Druby, Esquire, of the law firm of Nestico Druby, PC, hereby certify that on the 4`h day of September, 2013, a copy of the foregoing document was sent via First Class U.S. Mail,postage paid,to the following: Paul J. Bruder, Esquire Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, PA 17108-1146 Counsel for Defendant Associated Wholesalers, Inc. Richard B. Druby:' IJ 2614'J4 N�l cll�arol f S IN THE COURT OF COMMON PLEAS t COUNT OF CUMBERLAND COUNTY, PENNSYLVANIA 'NI y PLAZA K. REALTY, LTD., L.P. and PLAZA K. REALTY-CARLISLE, LP Plaintiffs, No. 12-5718 V. ASSOCIATED WHOLESALERS, INC. CIVIL ACTION-LAW Defendant. JURY TRIAL DEMANDED JOINT PRAECIPE TO WITHDRAW, DISCONTINUE AND END TO THE PROTHONOTARY: Please mark the above case withdrawn, discontinued and ended. NESTICO DRU C By: ichard B. D uby Attorney I.D. . 61904 1135 E. Chocolate Avenue Suite 300 Hershey, PA 17033 C/ (717) 533-5406 Telephone Date: / / 7 Attorneys for Plaintiff RHOADS SINON, LLP ` l By: Pa Al J. u er X squire Attorney I.D. P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 862-4534 Date: Attorneys for Defendant