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HomeMy WebLinkAbout14-1217 Supreme G u_v f ennsylvania Court of co'M' MoftTleas For Prothonotary Use Only: Civil Cover Sheet ' :. Docket No: County The inforination collected on this form is used solely for court administration pui/2oses. This form does not supplenient or replace the, filing curd service of pleadings or other papers as required by laiv or rules of cocci t. Commencement of Action: S ❑ Complaint X Writ of Summons ❑ Petition ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T Dollar Amount Requested: ❑ within arbitration limits I Are money damages requested? f�Yes El No O (check one) Koutside arbitration limits N Is this a Class Action Suit? ❑ Yes � No Is this an MDJAppeal? ❑ Yes V No A Name of Plaintiff /Appellant's Attorney: a ❑ Check here if i ou hay e no attorne} (are a Self - Represented pro Sel Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection: Credit Card ❑ Board of Assessment Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections ❑ Nuisance ❑ Dept. of Transportation S ❑ Premises Liability ❑ Statutory Appeal: Other ❑ Product Liability (does not include ' E mass tort) ❑ Employment Dispute: Slander /LibeU Defamation Discrimination El i C ❑ Other: ❑ Employment Dispute: Other ❑ Zoning Board T ❑ Other: I ❑ Other: O MASS TORT ' ❑ Asbestos N ❑ Tobacco l ❑ Toxic Tort - DES ❑ Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS ❑ Toxic Waste ❑ Other: El Ejectment E] Common Law /Statutory Arbitration B ❑ Eminent Domain/Condemnation ❑ Declaratory Judgment ❑ Ground Rent ❑ Mandamus M Landlord/Tenant Dispute E] Non-Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY ❑ Mortgage Foreclosure: Commercial ❑ Quo Warranto ❑ Dental ❑ Partition ❑ Replevin ❑ Legal ❑ Quiet Title ❑ Other: ❑ Medical ❑ Other: ❑ Other Professional: i i Updated 1/1/2011 LOUDOUN CENTRE, LLC, IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : vs. NO: � 2I 7 GIANT FOOD STORES, INC., a Delaware Corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and c ANNA H. GEHMAN, n ' Defendants �' r ` �T a4 PRAECIPE FOR SUMMONS CD To the Prothonotary: = r) }� Issue Summons in Civil Action to Defendant, GIANT FOOD STORES, INC., a Delaware corporation, in the above case. Writ of Summons shall be forwarded to Attorney. Date: February 28, 2014 Vrucears ! skyAsquire PA Supreme Comf ID No: 58799 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 (717) 238 -6570 Attorneys for Plaintiff 6 6 LOUDOUN CENTRE, LLC, IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO: (.� r 0-17 vs. GIANT FOOD STORES, INC., a Delaware Corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and a ANNA H. GEHMAN, ,, :Pn�;Q c' Defendants` CO PRAECIPE FOR SUMMONS To the Prothonotary: p " � i Issue Summons in Civil Action to Defendant, LEON S. GEHMAN, in the above case. Writ of Summons shall be forwarded to Sheriff. Date: February 28, 2014 Bruce J. Wars sky, Esquire PA Supreme Court ID No: 58799 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 (717) 238 -6570 Attorneys for Plaintiff LOUDOUN CENTRE, LLC, IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO: GIANT FOOD STORES, INC., a Delaware Corporation, GIANT FOOD ca `c STORES, LLC, LEON S. GEHMAN and r T "a ANNA H. GERMAN, �-a Defendants C2 J:: �+ G T'9 �.. PRAECIPE FOR SUMMONS To the Prothonotary: Issue Summons in Civil Action to Defendant, ANNA H. GEHMAN, in the above case. Writ of Summons shall be forwarded to Sheriff. Date: February 28, 2014 Bruce . Wa shawsky uire PA Supreme Court ID No: 58799 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 (717) 238 -6570 Attorneys for Plaintiff LOUDOUN CENTRE, LLC, IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO: VS. 7 14�c�/VL GIANT FOOD STORES, INC., a Delaware Corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and ANNA H. GEHMAN, Defendants WRIT OF SUMMONS TO: Giant Food Store, Inc. Giant Food Stores, LLC a Delaware corporation 1149 Harrisburg Pike Route 11 and Shady Lane Carlisle, PA 17013 Carlisle, PA 17013 ATTENTION: Real Estate Department Mr. Leon S. Gehman Ms. Anna J. Gehman 1648 Nolt Road 1648 Nolt Road Mount Joy, PA 17552 Mount Joy, PA 17552 You, are notified that the Plaintiff has commenced an action against you. SEAL Prothonotary Date: B Clerk/Deputy FAHome\BJW\DOCS \NARDO \Gehman SubleaseTraecipe.Writ of Summons.wpd .. . r 1, IL kir I HE '-'1 ",,...i 20/4 NTT -7 H10: 4 r,3 CUMBERL A ND COUNT 'Y PENNSYLVANIA LOUDOUN CENTRE, LLC, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. GIANT FOOD STORES, INC., a Delaware Corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and ANNA H. GEHMAN, Defendants : No. 14-1217 ENTRY OF APPEARANCE TO; THE PROTHONOTARY OF CUMBERLAND COUNTY Please enter my appearance on behalf of Defendant Giant Food Stores, LLC. Please also note that Giant Food Stores, LLC is the successor by merger to Giant Food Stores, Inc. Specifically, Giant Food Stores, LLC is the surviving entity of the merger between Giant Food Stores, LLC and Giant Food Stores, Inc. effective November 4, 2000, Thus, as of November 4, 2000, Giant Food Stores, Inc. ceased to exist as a separate entity. McNEES WALLACE & NURICK LLC Helen L. Gemmill, I.D. No. 60661 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17101-1166 Tel. 717-237-5273; Fax 717-260-1697 hgemmill@mwn.com By Dated: March 6, 2014 Attorneys for Defendant Giant Food Stores, LLC CERTIFICATE OF SERVICE I certify that I served a true and correct copy of the foregoing document by first class United States mail, postage prepaid, upon the following: Bruce J. Warshawsky, Esquire Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 Counsel for Plaintiff Loudoun Centre, LLC Leon S. Gehman 1648 Nolt Road Mount Joy, PA 17552 Defendant Anna J. Gehman 1648 Nolt Road Mount Joy, PA 17552 Defendant Dated: March 6, 2014 Helen L. Gemmill 204 NR -7 �'fif, ;{ Err, 4M /p. 4 ��, PENNS YL 4 VAN IA i T yf A LOUDOUN CENTRE, LLC, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY. PENNSYLVANIA Plaintiff v. GIANT FOOD STORES, INC., a Delaware Corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and ANNA H. GEHMAN, Defendants : No. 14 -1217 PRAECIPE FOR RULE TO FILE COMPLAINT TO: THE PROTHONOTARY OF CUMBERLAND COUNTY Please issue a Rule upon Plaintiff to file its Complaint within twenty (20) days or a judgment of non pros may be entered. McNEES WALLACE & NURICK LLC By Helen L. Gemmill, I.D. No. 60661 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17101 -1166 Tel. 717 - 237 -5273; Fax 717 - 260 -1697 hgemmill @mwn.com Dated: March 6, 2014 Attorneys for Defendant Giant Food Stores, LLC LOUDOUN CENTRE, LLC, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. GIANT FOOD STORES, INC., : No. 14-1217 a Delaware Corporation, GIANT FOOD : STORES, LLC, LEON S. GEHMAN and : ANNA H. GEHMAN, Defendants RULE TO FILE COMPLAINT TO: PLAINTIFF LOUDOUN CENTRE, LLC AND ITS ATTORNEY BRUCE J. WARSHAWSKY, ESQUIRE You are hereby notified to file your Complaint in the above-captioned action within twenty (20) days from service hereof, or judgment of non pros may be entered against you. David D. Buell, Prothonotary CERTIFICATE OF SERVICE I certify that I served a true and correct copy of the foregoing document by first class United States mail, postage prepaid, upon the following: Bruce J. Warshawsky, Esquire Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 Counsel for Plaintiff Loudoun Centre, LLC Leon S. Gehman 1648 Nolt Road Mount Joy, PA 17552 Defendant Anna J. Gehman 1648 Noll Road Mount Joy, PA 17552 Defendant Dated: March 6, 2014 Helen L. Gemmill LOUDOUN CENTRE, LLC, Plaintiff V. Et) - Fi CIL al' THE PRO THON-01-)W) 2014 tf/IR 7 M 10: 147 CUMBERLAND COUNTY PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA GIANT FOOD STORES, INC., : No. 14-1217 a Delaware Corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and : ANNA H. GEHMAN, Defendants ACCEPTANCE OF SERVICE I accept service of the Writ of Summons on behalf of Defendant Giant Food Stores, LLC, and certify that I am authorized to do so. Please note that Giant Food Stores, LLC is the successor to Giant Food Stores, Inc. by merger effective November 4, 2000. Specifically, Giant Food Stores, LLC is the surviving entity of the merger between Giant Food Stores, LLC and Giant Food Stores, Inc. Therefore, Giant Food Stores, Inc. is not a separately existing entity. McNEES WALLACE & NURICK LLC By #-S - Helen L. Gemmill, I.D. No. 60661 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17101-1166 Tel. 717-237-5273; Fax 717-260-1697 hgemmill@mwn.com Dated: March 6, 2014 Attorneys for Defendant Giant Food Stores, LLC CERTIFICATE OF SERVICE I certify that I served a true and correct copy of the foregoing document by first class United States mail, postage prepaid, upon the following: Dated: March 6, 2014 Bruce J. Warshawsky, Esquire Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 Counsel for Plaintiff Loudoun Centre, LLC Leon S. Gehman 1648 Nolt Road Mount Joy, PA 17552 Defendant Anna J. Gehman 1648 Nolt Road Mount Joy, PA 17552 Defendant C. Helen L. Gemmill Ronny R Anderson Sheriff Jody S Smith Chief Depu Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND �~������� �~" "~�"~"" " �� ��" " "~�~� ��" ��~�"°"��~�"��'��"��� COUNTY " Fx _ T�c���Tw�N—` .... . .^' �//.iR. y0/ MAR /8 p ���1 �'N . � v` CUMBERLAND P��W��'~ COUNTY PENNSYLVANIA ' ' ? Loudoun Centre, LLC vs. Giant Food Stores, Inc. (et a|j Case Number 2014-1217 SHERIFF'S RETURN OF SERVICE 03X04/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit Leon S Gehman, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Lancaster, Pennsylvania to serve the within Writ of Summons according to law. 03/04/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Ann H Gehman, but was unable to locate the Defendant in the Sheriffs bailiwick The Sheriff therefore deputizes the Sheriff of Lancaster, Pennsylvania to serve the within Writ of Summons according to law. 0307/2014 03:35 PM - The requested Writ of Summons served by the Sheriff of Lancaster County upon Rosalyn Gehman, Daughter in law, who accepted for Ann H Gehman, at 1648 Nolt Road, Mount Joy, PA 17552. Mark S. Reese, Sheriff, Return of Service attached to and made part of the within record. 0307/2014 03:35 PM - The requested Writ of Summons served by the Sheriff of Lancaster County Upon Rosalyn Gehman, Daughter in law, who accepted for Leon S Gehman, at 1648 Nolt Road, Mount Joy, PA 17552. Mark S. Reese, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $53.49 SO ANSWERS, March 12, 2014 RON R ANDERSON, SHERIFF SHERIFF'S OFFICE OF LANCASTER COUNTY 0 Mark S. Reese Brad Harris Sheriff Solicitor Marc Lancaster Chief Deputy LOUDOUN CENTRE, LLC VS. ANN H GEHMAN (et al.) Charles Hamilton Lieutenant Case Number 2014-1217 SHERIFF'S RETURN OF SERVICE 03/07/2014 03:35 PM - SERVED THE WRIT OF SUMMONS (WOSM) BY HANDING A COPY TO ROSALYN GEHMAN, DAUGHTER IN LAW, WHO ACCEPTED AS "ADULT PERSON IN CHARGE" FOR LEON S GEHMAN AT 1648 NOLT ROAD, MOUNT JOY, PA 17552. SO ANSWERS: DEPUTY ROBERT MUSSER, DEPUTY SHERIFF OF LANCASTER COUNTY, PA. ROBERT M SSER, DEPUTY 03/0712014 03:36 PM - SERVED THE WRIT OF SUMMONS (WOSM) BY HANDING A COPY TO ROSALYN GEHMAN, DAUGHTER IN LAW, WHO ACCEPTED AS "ADULT PERSON IN CHARGE" FOR ANN H GEHMAN AT 1648 NOLT ROAD, MOUNT JOY, PA 17552. SO ANSWERS: DEPUTY ROBERT MUSSER, DEPUTY SHERIFF OF LANCASTER COUNTY, PA. ROBERT MtISSER, DEPUTY SHERIFF COST: $60.94 SO ANSWERS, March 10, 2014 MARK S. REESE, SHERIFF COSTS 7 F.-- DATE CATEGORY MEMO CHK # DEBIT CREDIT 03/06/2014 Advance Fee Advance Fee 1773 $0.00 $150.00 03/06/2014 Receiving, Docketing & Return $9.00 $0.00 03/06/2014 Service $9.00 $0.00 03/06/2014 Affidavit $2.50 $0.00 03/06/2014 Deputy Time 2X $20.00 $0.00 03/06/2014 Service (Additional Defendant) $6.00 $0.00 03/06/2014 Affidavit - Additional Fees $1.00 $0.00 03/07/2014 Service Mileage $13.44 $0.00 03/10/2014 Refund $89.06 $0.00 BALANCE: $150.00 $150.00 $0.00 r Plaintiff Attorney: ABBCO REAL PROPERTIES CORP, PO BOX 442, HERSHEY, PA 17033 (c) CountySuite Sheriff, Teleosoft, Inc. Mark S. Reese Sheriff Marc Lancaster Chief Deputy SHERIFFS OFFICE OF LANCASTER COUNTY LOUDOUN CENTRE, LLC vs. ANN H GEHMAN (et al.) rad Harris Solicitor Charles Hamilton Lieutenant Case Number 2014-1217 SERVICE COVER SHEET Service Details: Category: Manner: Notes: Origin: Cumberland County Civil Action - Writ of Summons (WOSM) Adult in Charge Expires: 03/31/2014 Zone: Warrant: LCSO CLERK: YVETTE TURCO (717) 723-4519 MISC 1 OF 2 !Serve To: 1 Name: Primary Address: Phone: Alternate Address: Phone: A Name: ANN H GEHMAN 1648 NOLT ROAD MOUNT JOY, PA 17552 DOB: [Final Service: Served: Personally • Adult In Charge: Relation: Date: Deputy: n Charge Posted • Other Time: Mileage: orneyl Originator: IABBCO REAL PROPERTIES CORP Phone: 1717 238 6570 UService Attempts: Date: Time: Mileage: Deputy: 2 4 5 [Service Attempt Notes: 1. 2. 3. 4. 5, 6. (c) CourrtySuto Sheriff, Te!eosaft, Inc. z z 0 4.16 n.) ' -4 ZSSLI lid `A ©r 1Nf1 ©w t7Io II£I£0:dX3 SHERIFF'S OFFICE OF LANCASTER COUNTY Mark S. Reese Sheriff Marc Lancaster Chief Deputy LOUDOUN CENTRE, LLC vs. ANN H GEHMAN (et al.) Brad Harris Solicitor Charles Hamilton Lieutenant Case Number 2014-1217 SERVICE COVER SHEET Service Details: Category: Manner: Notes: 'Civil Action - Writ of Summons (WOSM) Adult in Charge Expires: 03/31/2014 G) Origin: Cumberland County] 1" m 0 , z Zone: Warrant: LCSO CLERK: YVETTE TURCO (717) 723-4519 MISC 2 OF 2 Perve To: Name: Primary Address: Phone: Alternate Address: Phone: LEON S GEHMAN 1648 NOLT ROAD MOUNT JOY, PA 17552 DOB: Pito ney / Originator: Name: [Final Service: Served: Personally • Adult In Charge • Posted - Other Adult In Charge: Relation: Date: Deputy: Time: Mileage: IABBCO REAL PROPERTIES CORP [Service Attempts: Date: Time: Mileage: Deputy: Phone: 1717 238 6570 (Service Attempt Notes: 1. 2 3 4 5 6 2. • 3. 4. 5. 6. (c) CountySuite Sheriff, Tels.ascffi 0 A co z 0 73 0 0 z L 0 PI.OVI£1£0 :dX3 i ; r fl'r, ` 28 CliIiEE R SYLUAi � � T LOUDOUN CENTRE, LLC, Plaintiff v. GIANT FOOD STORES, INC., a Delaware corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and ANNA H. GEHMAN, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 14 -1217 JURY TRIAL DEMANDED NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249 -3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas diguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avidaso que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier 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 ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJOPARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249 -3166 Date: April 10 , 2014 B Respectfully submitted, ruce arshawsky, _•moire PA Supreme Court ID o: 58799 Robert E. Chernicoff, Esquire PA Supreme Court ID No: 23380 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238 -6570 LOUDOUN CENTRE, LLC, Plaintiff v. GIANT FOOD STORES, INC., a Delaware corporation, GIANT FOOD : STORES, LLC, LEON S. GEHMAN and : ANNA H. GEHMAN, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 14 -1217 JURY TRIAL DEMANDED COMPLAINT AND NOW, comes Loudoun Centre, LLC, by and through its attorneys, Cunningham & Chernicoff, P.C., to file a Complaint in the above - referenced action and avers as follows: THE PARTIES 1. Loudoun Centre, LLC ( "Loudoun" or "Plaintiff') is a Pennsylvania Limited Liability Company with a business address of 553 Locust Street, Columbia, Lancaster County, Pennsylvania. 2. Defendant Giant Food Stores, LLC ( "Giant ") is a Delaware Limited Liability Company with a registered Pennsylvania office of 1149 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013.1 3. Defendants Leon S. Gehman and Anna H. Gehman ( "Gehman ") are adult individuals, husband and wife, who reside at 1648 Nolt Road, Mount Joy, Defendant, Giant Foods Stores, Inc., a Delaware corporation, has merged with Giant Food Stores, LLC, thus, by operation of law, they are one and the same. Counsel will shortly be filing a Stipulation to amend the caption of the case accordingly. Lancaster County, Pennsylvania 17552. JURISDICTION AND VENUE 4. Loudoun is the owner of a shopping center located at 121 Gettysburg Pike, Upper Allen Township, Cumberland County, Pennsylvania (the "Shopping Center "). 5. This action is for a breach of contract involving business relationships between the parties relative to the Shopping Center and thus jurisdiction and venue are proper in this Judicial District. THE BUSINESS RELATIONSHIPS 6. Giant became a Tenant for approximately 37,280 square feet within the Shopping Center (the "Leased Premises ") pursuant to a Lease Agreement dated August 29, 1975 by and between Upper Allen Associates as Landlord ( Loudoun's predecessor - in- interest) and Giant, which Lease was amended by and between Kimco Developments of Giants, Inc. as Landlord (also Loudoun's predecessor -in- interest) and Giant as Tenant dated May 11, 1989 (collectively the "Lease "). A true and correct copy of the Lease is attached hereto as Exhibit "A ". 7. By virtue of a Sublease dated September 10, 2003, Giant subleased the Leased Premises to Gehman ( "Sublease "). A true and correct copy of the Sublease is attached hereto as Exhibit "B ". 8. The Lease was assigned to Loudoun by Agreement of Sale dated May 5, 2005 ( "Agreement of Sale ") and Special Warranty Deed dated June 28, 2005 ( "Deed "). True and correct copies of the Agreement of Sale and Deed are attached hereto as Exhibits "C -1" and "C -2 ", respectively. 9. Loudoun and Giant entered into an Agreement dated July 26, 2012 to terminate the Lease and place Gehman as a direct Tenant of Loudoun inuring all of the rights and obligations as the Tenant under the Lease while preserving Gehman's rights and obligations under the Sublease ( "July 26, 2012 Agreement "). A true and correct copy of the Agreement is attached hereto as Exhibit "D ". 10. Additionally, the July 26, 2012 Agreement, provided Loudoun and Giant to release each other under the Lease but preserved rights of indemnification and at Paragraph 3(c), as follows: "Giant hereby agrees to indemnify [Loudoun] against and hold [Loudoun] harmless from, any and all suits, claims, actions, damages, charges, liabilities, losses, costs or expenses...which [Loudoun] may sustain or incur, arising out of or connection with or by reason of Giant's failure to observe, perform or comply with any of its obligations as Sublessor under the Sublease prior to the [Effective Date of the July 26, 2012 Agreement]." THE BREACH(ES) OF THE LEASE 11. The Lease requires, in Articles 10, 11 and 21, Giant pay its proportionate share of common area maintenance /administration /operations; real estate taxes; and 7172384809_ 12 :12:24 p.m. 04 -12 -2014 2/2 insurance, respectively for the Shopping Center (the "Net Obligations "). 12. The Sublease, at Paragraph 2, incorporates the Lease at Paragraph 2(b), as follows: "[Gehmans shall observe and perform those obligations imposed upon [Giant] under the [Lease]" including, but not limited to, the Net Obligations. 13. Loudoun performed an audit of the Shopping Center to determine the unpaid Net Obligations and calculated Loudoun is owed the sum of $199,921.09 for the period June 30, 2005 to July 31, 2012 and $65,986.74 for the period August 1, 2012 to August 31, 2013, a total of $265,907.83 as set forth in the attached Audit.2 A true and correct copy of the Audit is attached hereto as Exhibit "E ". 14. Giant is responsible for the Net Obligations for the period June 30, 2005 through July 26, 2012 in accordance with the Lease and the July 26, 2012 Agreement (since Gehmans, pursuant to the Sublease which has now merged into the Lease, owes Loudoun for the Net Obligations for said time period) by virtue of its indemnification obligation and is liable for the sum total of $199,921.09 in connection with the non - payment of the Net Obligations as set forth above. WHEREFORE, Plaintiff, Loudoun Centre, LLC, respectfully requests this Honorable Court award Plaintiff the sum total of $265,907.83 against Gellman and $199,921.09 against 22 An amount equal to $2,141.28 was erroneously included in the CAM for the last period for roof repairs which has been reduced from the demand herein. Giant plus attorney fees, costs and other just relief to which Plaintiff is entitled, an amount which exceeds the jurisdictional requirements for compulsory arbitration in this judicial district. Respectfully submitted, Date: April 16 , 2014 By: ru e J. Warshawsky, Esquire PA Supreme Court ID No: 58799 Robert E. Chernicoff, Esquire PA Supreme Court ID No: 23380 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238 -6570 EXH B T ARTICLE 1 ARTICLE 2 ARTICLE 3 ARTICLE 4 ARTICLE 5 ARTICLE 6 ARTICLE 7 ARTICLE 8 ARTICLE 9 •ARTICLE 10 ARTICLE 11 ARTICLE 12 ARTICLE 13 ARTICLE 14 ARTICLE 15 ARTICLE 16 ARTICLE 17 ARTICLE 18 • f • LEASE AGREEMENT UPPER ALLEN ASSOCIATES, a Limited Partnership TO : IAA; PARTIES PREMISES TERM S. INC. J COMMENCEMENT DATE 2 DELE'iED RENEWAL OPTIONS RENT LANDLORD'S TAXES, CHARGES 7 CONSTRUCTION 7 COMMON AREAS AND ENCLOSED MALL 9 TAXES 10 DELETED 12 PURPOSE 12 COMPETITION 12 REPAIRS 13 ALTERATIONS 14 FURTHER COVENANTS 15 3 3 3 NDEMNIFICATION AND LIABILITY INSURANCE 16 ARTICLE 19 ASSIGNMENT- SUBLETTING 17 ARTICLE 20 SIGNS 17 ARTICLE 21 FIRE INSURANCE 17 } 4 Pages ARTICLE 22 INJURY OR DESTRUCTION 18 ARTICLE 23 EMINENT DOMAIN -THE WHOLE 20 ARTICLE 24 DE[+AULT 21 ARTICLE 25 SUBORDINATION 22 ARTICLE 2d SELF -HELP • X23 ARTICLE 27 WAIVER•OF TRIAL BY JURY 24 ARTICLE 28 QUIET ENJOYMENT 24 ARTICLE 29 ZONING AND GOOD TITLE 24 ARTICLE 30 EXCUSABLE DELAYS 25 ARTICLE 31 HOLDOVER 25 ARTICLE 32 NO WAIVERS 25 ARTICLE 33 PAYMENTS OR WORK UNDER PROTEST .26 ARTICLE 34 NOTICES 26 ARTICLE 35 SEPARABILITY. 27 ARTICLE 36 OWN COST AND EXPENSE 27 ARTICLE 37 INVESTMENT CREDIT 27 ARTICLE 38 MISCELLANEOUS 27 ARTICLE 39 ADDITIONS 28 ARTICLE 40 SHORT FORM LEASE 32 ARTICLE 41 ENTIRE AGREEMENT- INTERPRETATION 32 ARTICLE 42 BROKER'S COMMISSIONS 32 ARTICLE 43 NO SET -OFF 32 • • .. 1 LEASE AGREEMENT ARTICLE 1. PARTIES' 5101. THIS LEASE, dated the "Lfdtday of . , 1975, . between UPPER ALLEN ASSOCIATES, a Limited Partne ship, having an office at 2505 N. Front Street, Harrisburg, Pennsylvania, (hereinafter called "Landlord "),• and GIANT FOOD STORES, INC., a Pennsylvania corporation, having an office at Route 11 and Shady Lane, Carlisle, Pennsylvania, (hereinafter called "Tenant "). W I T N E S S E T R Landlord and Tenant covenant and agree as follows: ARTICLE 2. PREMISES 5201. Landlord agrees to lease to Tenant and Tenant agrees to lease from Landlord, for the term and upon the terms and conditions hereinafter set forth in this Lease, the one -story air - conditioned store premises (hereinafter sometimes referred to as "Premises" or "Demised Premises ") to be located on Old Gettysburg Road, in the Township of Upper Allen, County of Cumberland, State of Pennsylvania, being measured and described approximately (meaning a difference of no greater than three inches width or six inches in depth) as follows: Front (Center of inside wall to center of inside wall): 176 feet irregular. Depth (Outside of front wall to outside of rear wall): 174 feet irregular. Basement Areas None Second Floor Areas None Total Areas 26,832:;guare feet and located as outlined and marked in'red upon Exhibit "A" attached hereto and made a part hereof, the same being a site plan of the Shopping Centex erected or to be erected upon the premises described by metes and bounds in Exhibit "8" attached hereto and made a part hereof. • 5202. Together with the right to the non - exclusive use, in common with others, of all such automobile parking . areas, driveways, footways and other facilities designed for common use, as shall be installed by Landlord as hereinafter provided, and of such other and further facilities as may be provided or designated from time to time by Landlord for common use, and together with all the appurtenances, if any, now or hereafter belonging thereto, including but not limited to those specifically mentioned in this Lease. • 5203. Landlord represents and warrants that the site plan above referred to is a complete and accurate repre- sentation of the buildings, parking areas, access roads, loading docks, passageways, and other common areas and facilities, and improvements shown thereon, now completed or under construction or planned for the Shopping Center, as well as of the locations of the store enterprises noted thereon, subject nevertheless to Landlord's right to make modifications to said site plan as set forth in Section 901 hereof. �• • • ARTICLE 3. TERM a $301. The term of this Lease shall be for a period of twenty (20) years, beginning on the Commencement Date (as hereinafter defined), except that if such Commencement Date shall fall on a day other than the first day of a month, then the period between such Commencement Date and the first day of the next month shall be added to the term of the Lease. If the Commencement Date is the first day of a month, the term shall end at noon on the daTbefore the twentieth (20th) anniversary of the Commencement Date, but if the Commencement Date is not the first day of a month, then the term shall end at noon on the last day of the month in which shall fall the said anniversary of the Commencement Date. ARTICLE 4. COMMENCEMENT DATE $401. .Conditions Precedent: For the purposes of this Lease, and subject to the provisions of Section 904(a), the phrase "Commencement Data" shall mean the earlier of (i) the date on which Tenant opens for business -in the Demised Premises; and (ii) the next day after the data on which the last of all the following shall have occurred or been performed; (a) Landlord's architect shall have certified to Tenant, in writing, that the common areas of the Shopping Center are completed as shown on the site plan, that adequate flood lighting facilities have been installed in the Shopping Center, that the provisions of Section 1001 hereof have been met, and that the building in which the Demised Premises are to be located has been completed except for any work to be done by any of the tenants; (b) the Demised Premises have been completed in. accordance with the provisions of this Lease, and are ready for the normal conduct of Tenant's business except for any ,installations Tenant has yet to make; (c) a certificate of occupancy shall have been issued by the appropriate local authority, or, if under local practice no official certificate of occupancy is issued, then a certificate of Landlord's architect shall have been issued to Tenant, certifying that the Demised Premises and the building in which they are contained may be lawfully occupied; (d) all utilities shall have been connected in the building and in the Demised Premises, and are in ade- quate supply, and the storm and sewer drainage are adequate; (e) Tenant shall have received written notice from Landlord authorizing Tenant to enter the Premises to fixture it and make it ready for the conduct of its business, and Tenant shall have had ninety (90) days after receipt of said notice to do said work without substantial interference. By sending said notice to Tenant, Landlord covenants, repre- sents and warrants that it has theretofore performed the 2 q r r• covenants and conditions set forth in (b) above and that it will within the said 90 day period complete the performance of the covenants and conditions set forth in (a), (a) and (d) above, all of which shall survive the commencement of the term. Tenant may enter in and upon the Demised Premises' at any time prior to the commencement of said 90 day period in order to take measurements for its fixtures and equipment and to do its other work in the Demised Premises provided, however, that Tenant does not substantially interfere with Landlord's work therein. ARTICLE 5. (DELETED] ARTICLE 6. RENEWAL OPTIONS 5601. Provided that Tenant at the time of exercise of the option herein granted is not in default under this Lease, Tenant shall �}r rig t, option and pr j, :.of reaawin ats r, �t � sii t�j`�tel�s; this Lease for s • 'Q. 4) The said option 14ds upon six (6) months' written' o the ex fixation of the then al' Abe `Idiaod byTenan notice to Landlord •rior current term. „ • Ltd �; f'i_C�) .( ?f'eyJ P o t o n n 'ii:.exl p t" tl a rertewals ":and'extehsio of this Lease, except that during said option periods, Tenant .;shall have the right to terminate this Lease at any time upon at least one (l) year's prior written notice to Lanndlord . ' . ARTICLE 7. RENT 5701. Tenant shall pay rental to Landlord by good check or draft payable'to the^eder of the Landlord, which may be placed in the United States mail in Carlisle, Pennsyl- vania, addressed to Landlord at the address above set forth or at such other place or places as Landlord may, by notice in writing to Tenant from time to time direct, at the following rates and times' • (a) Minimum Rents► & :•, nl iw ..rent •for..•.and during the orig+Lptaz'tert a't likr.741A tte o� `. 801.65 pbr 'anni subjeot')i' Ve'r to the' gbvisiona of Section 904(a) and further, subject to adjustment as hereinafter provided. Said minimum rent shall be payable in equal monthly install- ments, in advance, on the first day of each calendar month. On the first rent day of the original term Tenant shall also pay the minimum rent for any portion of the preceding calendar month that may be included in the original term, said rent to be calculated on the basis of the actual number of days in that calendar month. The minimum rent set forth in this Section 701(a) has been calculated on the basis of $9;65 pet, square foot per year for 2:6,021 aqva,,t '•feet. If t.'hA.ttotal area of the Demised Premidds as conitrueted pursuant to the plans and specifications (see Section 903(a)) shall be greater than, or less than, 26,521 square feet, the said minimum rent shall be adjusted on said basis. • •I• ,•• • ..r . , . S It is contemplated by the parties that the actual cost of construction of the Demised Premises (as hereinafter defined) will be $20.00 per square foot. If the actual cost of construction of the Demised Premises shall be leas than $20.00 per square foot, Landlord shall pay. to Tenant on the Commencement Date a sum equal to the difference between $20.00 and the actual cost of construction per square foot multiplied by the number of square feet in the Demised Premises. If the actual cost of construction of the Demised Premises shall be more than $20.00 per square foot, Tenant shall pay to Landlord on the Commencement Date a sum equal to the difference between $20.00 and the actual cost of construction per square foot multiplied by the number of square feet in the Demised Premises. • The actual cost of construction of the Demised Premises shall be the cost of all labor, materials and services required to construct the Demised Premises, but shall not include architectural fees, grading or other site work, or any costs involved in.bringing utility lines (in- cluding water and sewer) to the Demised Premises. Landlord shall submit to Tenant all contracts and subcontracts for the construction of the Demised Premises . proposed to be accepted by Landlord, prior to.the execution thereof by Landlord and Tenant shall have the following elections: (1) to accept the contracts and subcontracts, in which event Landlord shall execute the same; (2) if the cost of construction per square foot shall be in excess of $20.00 or if Tenant shall disapprove any other provisions of the contracts and subcontracts, to amend its•plane and speci- fications and negotiate reduced prices with the contractors or subcontractors, and /or negotiate changes in the provisions disapproved, in which event Landlord shall execute the contracts and subcontracts as so modified= or (3) negotiate new contracts and subcontracts with reputable,-financially responsible contractors and subcontractors, in which event. Landlord will execute such new contracts and subcontracts. The times for commencement of construction and completion of construction set forth. :in Section 904(a) shall be extended by the number of days between the submission by Landlord to Tenant of the proposed contracts and subcontracts, and the approval by Tenant of contracts and subcontracts for execution. (b) Percentage Rentals Additional annual rental' (hereinafter referred to as "Percentage Rental ")'as follows: (i) One and one - quarter per cent (1.25 %) of the gross, sales (as hereinafter defined) in excess of $7,744;132.00 ( "Volume Allowance ") up to $10,000,000'of gross sales, plus o ,percent (l%) of the gross'sales • in excess of $10/060i000,' made by Tenant in, on, or from the Premises in any lease year in the original term'or any extended term hereof. In the event that, by reason of adjustments, the minimum rental set forth in Section 701(a) hereof shall change, the Volume Allowance shall be changed to that number of dollars, one and one- quarter per cent (1.25 %) of which equals the minimum rental. 4 • •:• • (ii) For 'the purpose of this Lease, "lease year" shall mean the first full 12 calendar months of the term, and each succeeding 12 -month period. If this Lease shall begin on a day other than the first day of a calendar month, the first lease year shall include the first partial calendar month of the original term. The percentage rent for the said first partial month shall be 1.25% of the gross sales made therein in excess of a fraction of $645,344.33 (which is 1/12 of '` the Volume Allowance), subject to adjustment if the Volume Allowance changes, the numerator of'which fraction is the number of days of the original term in the first partial month, and the denominator of which is the actual number of days in that month. (iii) Payment of percentage rent shall be made no later than the 90th day after the end of•each lease year, and on or before said date Tenant shall send to Landlord a written statement certified as correct by an executive officer of Tenant showing the gross sales for the lease year just ended. Tenant shall keep at the Demised Premises or in its main office, a correct record of gross sales, as. gross sales are hereinafter defined. (iv) At reasonable times during business hours of Tenant, not more than once annually, Landlord shall have the right of access to said records so far as the same relate to the gross sales in -the Premises, including all'sales records, books and other records pertaining thereto, and the right, if Landlord so desires, to have said sales records, books and other records audited by a certified public accountant em- ployed and paid by Landlords but none of said records shall be removed from Tenant's office, and no examination of records of any other stores of Tenants or of the general books of account or tax returns (except sales or other tax returns showing only the. gross sales at the Demised Premises) and no other financial informa- tion of Tenant shall be permitted. Each statement of sales sent to Landlord shall be conclusive and binding on Landlord one year after receipt thereof, and Tenant may destroy such records at the end of said one year, unless before the expiration of said one year Landlord shall inspect the applicable records and send Tenant written notice specifying the claimed inaccuracies. If any audit by Landlord shall correctly disclose a lia- bility for rent 5% or more in excess of the annual minimum and percentage rental payable for the lease year in question, Tenant shall promptly pay Landlord the reasonable cost of said audit in addition to the deficiency in rental. Landlord and its representatives shall hold in confidence all information received on any audit except where required to supply such informa- tion to a mortgagee, and except where such information must necessarily be divulged as a result of ligitation. (v) The fact that a part of Tenant's gross 'sales may be payable as rent hereunder, shall not, nor shall any other provision of this Lease be construed to create'a cb- partnership or joint venture by or between • Landlond and Tenant, or make.Landlord in any way re- sponsible for debts and /or losses of Tenants, and Tenant shall be free to determine and follow its own business and sales policies and practices in the con- duct of its business on the Demised Premises. (vi) The term "gross sales" as used in this Lease shall mean the actual sales prices of all mer- chandise sold and actual charges made for services performed in, on, or from the Demised Premises, whether by Tenant or any subtenants, licensees or concessionaires, and whether for cash or on credit. The following shall be excluded, or deducted, as appropriate, from gross sales: (1) discounts, allowances, and refunds (pro- vided the amount of the. same has been included in gross sales) and credits for cancelled sales or for exchanged or returned merchandise; (2) sales, luxury, excise taxes or other taxes collected by Tenant from customers, imposed by and paid over to federal, state or local government or governmental authority levied in whole or in part upon the basis of sales made in, on or from the Premises: (3) receipts from coin telephones, vending machines and other coin- operated service facilities and machines, except to the extent of commissions received • therefrom; (4) sales of trade fixtures or store equip- ment after use thereof on the Premises; (5) transfers of merchandise between stores of Tenant, provided no such transfer is made to avoid liability for percentage rent; (6) delivery charges, and any service rendered at cost, or approximately at coat, for the convenience of customersi (7) sale of gift certificates or kindred vouchers (but the redemption of gift certificates shall be included in gross sales). If, after a credit sale has been included in gross sales, it is written off as a bad debt, the unpaid amount of the said credit sale and finance, interest and service charges may be de- ducted from any statement of gross sales made after the said unpaid amount is written off as a bad debt, but shall be included again in later statements if later collected. (vii) Any and all sums payable by Tenant to Landlord pursuant to this Section 701(b) shall be reduced by the amount payable by Tenant to Landlord pursuant to Article 11 hereof ( "Taxes "). 5702. Tenant may refuse to open for business or discon- tinue the operation of the Demised Premises, Landlord acknowl edging that Tenant has notified Landlord that Tenant would not enter into this Lease except for this provision which is declared to be an essential inducement to Tenant to enter into this Lease Agreement. In the event that Tenant shall refuse to open the Demised Premises after Landlord shall have complied with conditions (a) through (e) of Section 401, or if Tenant shall vacate the Demised Premises, in accordance with the provisions of this Section, the rental payable pursuant to $701 hereof shall be limited to the minimum rental payable - 6 4 1, pursuant to Section 701(a) hereof, and in such event, the provisions of 5701(b) hereof shall be of no further effect. Notwithstanding the foregoing, however, any charges payable by Tenant pursuant to the terms of any provisions of this Lease other than 5701(b) shall continue to be due and payable in accordance with the terms hereof. In the event that Tenant shall. refuse to open after Landlord has complied with conditions (a) through (e) of Section 401, or shall cease. operating its'business within the Demised Premises, for a period of more than ninety (90) days for any reason other than causes beyond the control of Tenant, including without limitation,. war, riot, civil insurrection, labor disputes, act of God, fire•or other casualty, taking by eminent domain or any other cause not solely within the control of Tenant,:Landlord may at its ;' option at any time thereafter, so long ae Tenant does not resume its'operation"within the"Demised Piemises, terminate .t thie'Lease by• written•notice deliVere4•'to'Tei►ant•, whereupon; this Lease shall expire as though the date of '•:ezmh notice were the date herein•set forth for °expiratiofl cf the'term hereof, and the'parties hereto shell be. released and•relieved of and from any and all further liability hereunder. •,; ARTICLE 8. LANDLORD'S TAXES, CHARGES 5801. All charges on the land or improvements and obligations secured by mortgage or other lien upon the Premises shall be paid by Landlord when due. 'Tenant may but need not perform, acquire or satisfy any lien, encumbrance, agreement or obligation of Landlord, including underlying leases and liens for taxes and assessments, which may in Tenant's judgment threaten its enjoyment of the Demised Premises. ARTICLE 9. CONSTRUCTION• • S901. Landlord shall construct the Shopping Center in accordance with the site plan attached hereto as Exhibit "A ". The said site plan may be changed or modified, and construction of the Shopping Center pursuant thereto may deviate from said site plan, only with the prior written consent of tenant, which consent shall not'be unreasonably withheld. 5902. Landlord shall construct the building which will contain the Demised Premises in accordance with the plans and specifications therefor filed with and approved by appropriate governmental agencies or officers as required by law. Landlord agrees that the normal flow of pedestrian ` traffic past the Demised Premises and the access to or view. of the. Demised Premises from the sidewalks, malls, if any, and parking' areas as shown on Exhibit "A" shall not be obstructed, blocked, diverted or encumbered in any way by ' vending stands, kiosks, planters, columns, protrustions of adjacent stores or structures of any kind... 5903. Construction of the Demised Premises: • (a) Landlord shall construct the Demised Premises complete and ready for the conduct of business (except for Tenant's equipment, fixtures, trade fixtures, furniture and other work to be done by Tenant), in accordance with plans IV t t1 s • and specifications initialed by the parties and attached hereto or to be attached hereto as Exhibit "C ". No changes shall be made in said plans and specifications except upon the written consent of Tenant. The plans and specifications attached hereto as Exhibit "C" are the Tenant's basic building specifications, exterior elevation, interior elevation, fixture plan and mechanical plan. Landlord shall be responsible for coordinating this data into final construction plans for bidding purposes, which shall be at Landlord's own expense, and which shall be delivered to Tenant for Tenant's approval within thirty days after Landlord's acquisition of the Shopping Center site. Such plans prepared by Landlord, as approved by Tenant, shall be initialled by both parties and shall be included among the plans and specifications to be attached hereto as Exhibit "C ". (b) Landlord shall furnish heat to the Demised Premises whenever required in cold weather so as to keep the Premises at 72 degrees fahrenheit regardless of the temperature outside. Landlord, shall furnish from a central or other air conditioning source air conditioning to the Demised Premises so as to keep the Premises at 70 degrees fahrenheit regardless of the temperature outside. Circulation of fresh air in the Demised Premises shall be furnished throughout the year, and during each night of the year. S904. Deadlines for Constructions (a) If Landlord shall not have commenced con- struction of the foundations of the building of which.the Demised Premises is a part on or before the sixtieth (60th) day after Landlord's acquisition of the Shopping Center site, or if conditions (a) through (e) of Section'401 hereof have not been complied with on or before the expiration of twelve (12) months after Landlord's acquisition of the Shopping Center site, notwithstanding the provisions of Section 3001 hereof, Tenant shall have the right to cancel this Lease by written notice given within 30 days after the foregoing dates. Upon the giving of either of said notices this Lease shall be deemed cancelled and terminated and neither party shall have any further rights or obligations hereunder. (b) The entry of Tenant on the Demised Premises pursuant to Section 401(e) hereof shall not be deemed to be. an acceptance of the Premises or a waiver of any of Tenant's rights hereunder. In the event that Tenant shall, by reason of substantial interference with Landlord's work upon such entry, cause delays in the prosecution of Landlord's work, the date for compliance with conditions (a) through (e) of Section 401 hereof, shall be extended for a period of time equal to the period of delay so caused by Tenant. $905. Landlord represents, warrants and covenants that at the commencement of the term, the Demised Premises will comply with all applicable laws, orders, ordinances and regulations and will be suitable for the purposes for which they are let, and will be in good repair except for any condition owing to the act, negligence or default of Tenant. • • , • ARTICLE 10. COMMON AREAS AND ENCLOSED MALL 51001. Common Areass Landlord shall construct at locations as shown on Exhibit "A" the parking areas, approaches, entrances, exits, sidewalks, roadways, loading areas and platforms, if any, and service roads shown thereon, all hereinafter referred to as "common areas" or "public areas ", for the reasonable operation of the Shopping Center and Tenants business in the Demised Premises, all of which Tenantr its customers, employees and all those having business with it, are hereby granted the right to use and enjoy, in common with other tenants, their customers, employees, and those having business with them. Landlord shall keep and maintain the foregoing in good repair and condition and reasonably free of snow, ice, refuse and other obstructions. Landlord covenants and agrees that, throughout the term of-this lease the parking ' areas of the Shopping Center shall at all times contain 5.5. parking spaced (minimum size 10 feet .by 20 feet) for each 1,000 square feet of, gross building floor area in the Shopping Center,°:but-no fewer than 379 parking spaces for full size American automobiles. ,All such common areas shall throughout the term be reasonably paved, striped and have. reasonable drainage and they and the Demised Premises shall, at all times, have reasonable and adequate means of ingress and .+ egress to and from accepted highways and public streets, and the sidewalks and service roadway. shall'be connected thereto. All parking areas shall -be reasonably illuminated during all of Tenant's evening business hours by adequate lighting installations to be constructed by Landlord, and thereafter maintained by it in good repair and condition. No charge shall be made for the parking of vehicles in the Shopping Center. Tenant shall require its employees to park in those areas designated as "Employee's Parking Areas" on Exhibit "A" attached hereto. 51002. (Deleted] 51003. Tenant's Contribution: For each year of the term hereof, Tenant shall pay to Landlord, as additional rent, Tenant's proportionate share of all Costs of Operation and Maintenance (as hereafter defined) of the common facilities of the Shopping Center,of which the Demised Premises are a part. Within sixty (60) days after the end of Landlord's fiscal year, Landlord will deliver to Tenant a statement showing in reasonable detail Tenant's proportionate share of such Costs of Operation and Maintenance, and, within twenty (20) days after delivery of such statement, Tenant will pay such excess shown to be•due by said statement, as additional rent. Tenant's proportionate share of the actual Coats of Operation and Maintenance of the common facilities shall be in the same proportion to the total Coats of Operation and Maintenance as-the total area of the Demised Premises bears to the total number of square feet of gross leaseable area contained within all buildings in the Shopping Center. The statement submitted by Landlord shall be accompanied by evidence of the aforesaid actual Costs of Operation and Maintenance reasonably satisfactory to Tenant. The aforesaid Costs of Operation and Maintenance - 9 - • shall mean all expenditures incurred by or on behalf of Landlord for the following costs to the extent they relate to common areas and facilities: the cost of Landlord's liability insurance, gardening and landscaping, repairs and reatriping of parking lot and accessways, lighting, removal of snow, trash, rubbish, garbage and other refuse, repair of • on -site water lines, sanitary sewer lines, storm water lines and electrical lines and equipment serving the Shopping Center, and the cost of police, security and traffic control services. S1004. Deleted 51005. Promotion Area:. Anything contained in this Lease Agreement to the contrary notwithstanding, Tenant shall have the right, at its option, at least twelve (12) times in each calendar year during the term hereof and any extensions or renewals hereof, for a period of up to five (5) days, for each time, to the exclusive use and control of that portion of the "common areas" located as outlined in blue and marked upon Exhibit "A" and labeled "Promotion Area ". Each time Tenant desires to exercise its option it may do so by giving notice of its exercise thereof to Landlord at least fifteen (15) days prior to the date of its intended use of the Promotion Area. Tenant may use the Promotion Area, during such time as it is under its exclusive control, as set forth in' Article 13. 51006. Outdoor Selling Area Anything contained in this Lease Agreement to the contrary notwithstanding, Tenant shall have the right during the months of April through October inclusive in each year of the term hereof, to use the sidewalks and Expansion Area as defined in 53901, adjoining the Demised Premises, for the display and sale of garden supplies and similar and related merchandise. ARTICLE 11. TAXES S1101. Tenant shall pay, as additional rental, Tenant's Tax Increase, as hereinbelow defined. For the purposes of this Article: (a)• "base tax year" is the first full real estate tax year (after the year of the commencement of the term hereof) for which the Demised Premises is assessed for real estate tax purposes as a completed building; (b) "tax escalation year" is any tax year after the base tax year in which the real estate tax levied or assessed against the Demised Premises or the Shopping• Center exceeds the tax levied or assessed for the base year (c) "Landlord's tax increase" is the excess . referred to in (b) of this Section 1101; (d) "Tenant's tax increase" is the Tenant's proportionate share of Landlord's tax increase and is com- puted by multiplying Landlord's tax increase by a fraction the numerator of which is the gross square foot area of the Demised Premises and the denominator of which is the gross square foot area in all the buildings of the Shopping Center. - 10 - • • •1.11 1 . • • 51102. If the tax escalation year coincides with the lease year the percentage rent, if any, payable for the lease year shall be reduced by the amount of Tenant's tax increase payable for said tax escalation year. $1103. If a tax escalation year does not coincide with a lease year then the amount of the Tenant's tax increase for the tax escalation year shall be allocated to the lease years in which the tax escalation year falls in the ratio of the number of days of the tax escalation year that fall .within the lease year, to 365, or 366, as the case maybe. For example, if a given tax escalation year falls within two lease years and there are 42 days of the tax escalation year in the earlier lease year, the allocation of the Tenant's tax increase to the earlier lease year is 42/365ths of the Tenant's tax increase, and the balance of the Tenant's tax increase is allocated.to the later lease year. The Tenant shall deduct, or Landlord shall refund, as the case may be, (a) from the percentage rent payable, or paid', for the earlier lease year, 42/365ths of the Tenant's tax increase payable, or paid,_ for the earlier lease year, and (b) from the percentage rent payable for the later lease year, 323/365the of the Tenant's tax increase payable for said lease year. $1104. Landlord shall render a bill for Tenant's tax increase after the end of the lease year for which it is payable. At the time of rendering such bill, Landlord shall submit to Tenant a true copy of the tax bills and the facts and information needed to calculate Tenant's tax increase; provided however that Landlord shall give Tenant written notice of the amount which will be billed at the time aforesaid within ten (10) days after receipt by Landlord of the tax bills from the taxing authorities. In the event of any change in the assessed valuation or of the real estate tax for any tax escalation year, Landlord shall give Tenant notice thereof within ten (10) days after receipt by Landlord of notice of such changes from the taxing authority. $1105. If Landlord shall fail or refuse, on demand of Tenant, to take any necessary steps to contest the validity or amount of the assessed valuation or of the real estate tax for any tax escalation year, Tenant, at its own cost and expense, may undertake, by appropriate proceedings in the name of Landlord or Tenant, to review the validity or amount of the assessed valuation or of the real estate tax for any tax escalation year. Any documents required to enable Tenant to prosecute any such proceeding shall be executed and delivered by Landlord within a reasonable time after demand therefor. Landlord shall inform Tenant, in 'time to permit Tenant to undertake such review, of all pertinent ' data required to undertake such review. $1106. If Landlord shall obtain a remission or a refund of all or part of Landlord's tax increase for any tax esca- lation year for which the Tenant's tax increase has been paid or is payable, Landlord shall promptly refund to Tenant (or credit Tenant with) a proportionate share. of the re- mission or refund, such proportionate share to-be calculated after deduction of Landlord's actual coats and expenses incurred in obtaining such remission or refund. Tenant's proportionate share shall be determined by applying to the net amount of the refund or remission the fraction referred to in Section 1101(d) of this Article. • 1 1 I 51107.(a) Increases in real estate taxes on the Shopping Center which result from increases in the assessment of the Shopping Center attributable to increases in the land area comprising the Shopping Center site and /or any additional improvements made to the Shopping Center over and above those upon the Shopping Center at the time of the base tax year shall not be considered as part of the Landlord's tax increase as defined herein; and, in the event of such increase, the gross square foot area of such increased area or apace or improvements shall not be included within the computation of the gross square foot area in all buildings of the Shopping Center for the purpose of computing Tenant's tax increase. (b) Increases in real estate taxes on the Shopping Center which result from increases in the assessment of the Shopping Center not attributable to increases in the land area comprising the Shopping Center site or any additional improvements made to the Shopping Center over and above those upon the Shopping Center site as the time of the base tax year, shall be considered as part of Landlord's tax increase as defined herein and shall be included in the computation of Tenant's tax increase. (o) Increases in real estate taxes on the Shopping Center which result from increases in the rate of taxation (as opposed to increases in assessment) shall be considered part of Landlord's tax increase as defined herein and shall be included in the computation of Tenant's tax increase, except to the extent that such real estate tax increase arises by reason of the application of the increased rate of taxation to assessments excluded from Landlord's tax increase in accordance with paragraph (a) of this Section 1107. ARTICLE 12. DELETED ARTICLE 13. PURPOSE 51301. The Premises may be used for any lawful purpose, including without limitation a supermarket or retail food store. ARTICLE 14. COMPETITION $1401... So. long as Tenant is in occupancy .of the Demised Premises and is not in default of a substantial obligation ' of this Lease, Landlord will not directly Or indirectly'uae, occupy, lease; sublease.or.petmit to-be used, occupied, leased or subleaeed, any portion bf.the Shopping Centers of which the DemisedPremiaes is a part (if any) or any other ground owned, leaeed,.000upied or controlled'by Landlord, directly or indirectly, within a three (3) mile radius Of the Demised Premises, for the operation of a supermarket,, retail food store, or any other store selling food, except to Tenant hereunder. 51402. Landlord will, promptly after written notice. from Tenant, bring'and prosecute to completion an appropriate action or proceeding in a court of competent jurisdiction to restrain a violation of this Article 14, obtaining, if possible, an injunction. In addition to any other remedies which Tenant may have, at law or in equity, Tenant shall - 12 - • • • 1 have the right-if Landlord shall fail .or refuse to bring such action or proceeding, to bring an action or proceeding against any occupant or occupants of any portion-of the Shopping Center for injunctive or other relief, in its own name or in the name of the Landlord to enforce the pro- visions of this Article. . 51403. If Landlord breaches any of the foregoing pro- visions of this Article 14, Tenant may, in addition to all other rights and remedies it may have, cancel-and terminate this Lease by giving Landlord written notice of its election to do so, and on the date of termination specified in such notice (which shall be at least 60 days after the date of the giving of said notice) this Lease shall terminate and expire. ARTICLE 15. REPAIRS 51501. Tenant shall make all ordinary, non - structural repairs to. the Demised Premises not occasioned by ordinary wear and tear, fire or other casualty, as well as all repairs of any nature and wherever required which are necessitated by Tenant's acts or negligence or breach of this Lease. Tenant shall also replace all broken plate glass and windows, but where the loss is covered by Landlord's insurance, Landlord shall make a claim therefor and reimburse Tenant for the cost thereof to the extent that the insurance pro- ceeds are sufficient to pay therefor. Tenant shall also:be responsible for the repair and maintenance of the heating, air- -conditipning, plumbing and electrical systems within the Demised Premises. 51502. Landlord shall make all repairs and replace- ments, if necessary, ordinary and extraordinary (other than those which Tenant is obligated to make) in, to or about the Shopping Center and the building containing the Premises, and all parts thereof, as well as the Demised Premises, including, without being limited to repairs to: roof; roof structures and supports; foundation and structural supports; exterior walls; structural portions of the floors; chimneys; curbs; sidewalks; and exterior utility lines servicing the Demised Premises, and all other structural repairs and replacements, whether interior or exterior. Notwithstanding the foregoing, Landlord shall make all repairs, though interior or non - structural, which are necessitated by the settling of the building, or by Landlord's acts or negligence or breach of this Lease, or by defects in•the original construction or installation, or which are covered by guarantees or warranties. 51503. If, in the event of an emergency, it shall become necessary to make any repairs hereby required to be made by Landlord, Tenant may without notice, proceed forthwith to have such repairs made and pay the cost thereof, whereupon Landlord shall reimburse Tenant for the cost of such repairs upon demand therefor. • 51504. Tenant shall surrender the Premises, at the expiration of the term, in good order and condition, to- gether with any permanent improvements made by Tenant, except for damage by reasonable wear and tear, fire, the elements or by any other happening which is beyond Tenant's control. 51505. Landlord shall make all repairs, alterations and additions which may be required by any laws, ordinances, orders or regulations of any public authorities having jurisdiction over the Demised Premises, except that Tenant shall make all such repairs, alterations and additions required because of any use made of the Demised Premises by Tenant other than the proper and lawful conduct of Tenant's business, or any unlawful action or any negligence of Tenant, or any breach or default under this Lease. ARTICLE 16. ALTERATIONS • 51601. Tenant shall have the right, at its expense, from time to time, to redecorate the Demised Premises, and to make such non - structural alterations and changes in such parts thereof as it shall deem expedient or necessary for its purposes. Tenant may make structural alterations and additions to the Demised Premises provided it has first obtained the consent thereto of Landlord in writing, Land- lord agreeing that it shall not withhold such consent un- reasonably. No such alterations or changes shall injure the safety of the structure or diminish its value, and all the work shall be done in good and workmanlike manner, and in accordance with all applicable laws. Landlord shall execute and deliver upon request of Tenant such instrument or in- struments embodying the approval of Landlord which may be required by any public or quasi- public authority for the purpose of obtaining any license or permit for the making of such alterations, changes and /or installations in, to or upon said Demised Premises, Tenant agreeing to pay for such licenses or permits. Tenant shall not require Landlord's consent to do the work of fixturing and installations re- quired of Tenant to suit the Premises to its needs at or before the commencement of the term. Landlord shall not be responsible for repairs with respect to any alterations or changes made by Tenant, notwithstanding that the same may be structural, except if occasioned by fire or other casualty. $1602. Any trade fixtures, equipment and other property installed in or attached to the Demised Premises by and at the expense of Tenant shall remain the property of Tenant, and Tenant shall have the right at any time and from time to' time, to remove any of the same so installed or attached in the Demised Premises, including, but not limited to, counters, shelving, showcases, chairs and moveable machinery. If Tenant shall not remove said property at the termination of this lease, then the same shall be deemed to be abandoned by Tenant, but the failure to remove said property shall not be deemed to be a holding over by Tenant nor a ground for claiming a renewal or extension of this Lease. Tenant shall repair all damage to the Demised Premises caused by the - 14 - ' t� removal by Tenant of such property, except for necessary holes and other openings and unavoidable damage to plaster and painted surfaces resulting therefrom. 51603. Landlord shall, upon the request of Tenant, execute any document necessary to subordinate Landlord's right of distraint or execution to any perfected security interest held by a secured party. in any of Tenant's trade fixtures, furnishings and equipment:located- within or about the Demised Premises. ARTICLE 17. FURTHER COVENANTS 51701. Tenant shall: (a) Pay when due the said rent at the times and in the manner aforesaid. (b) Procure any licenses and permits required for any use made of said Premises by Tenant. •(c) Not make any use of the Demised Premises which is improper, offensive or contrary to any law or ordinance; nor to permit any act or thing to be done on the Demised Premises which shall constitute a• nuisance or which may make void or voidable any • insurance against fire on said Premises or the building of which they are a part, and to pay any increased or extra premium payable for any such insurance resulting from any act done by Tenant other than the conduct of Tenant's business in a lawful and proper manner. (d) Pay promptly when due the entire cost of any work to the Demised Premises undertaken by Tenant so that said Premises shall at all times be free of liens for labor and materials,. to procure all necessary permits before undertaking such work in a good and workmanlike manner, employing materials of good quality and complying with all'. governmental requirements, and to save Landlord harmless and indemnified from all injury, loss, claims or damage to any person or property occasioned by or :growing out of such work. (e) Permit Landlord and its agents to examine the Premises at reasonable times and to show the Premises to • prospective purchasers, provided that Landlord shall not thereby interfere with the conduct of Tenant's business! to permit Landlord to enter said Premises to make such repairs, improvements, alterations or additions thereto.as may be required for the safety or preservation thereof or of the building, or in order to comply with the requirements of any public authority having jurisdiction of the Premises, or as may be required of Landlord under the terms of this Lease, and Landlord shall do all such work as expeditiously as reasonably possible and without substantial. interference ' with Tenant's use of. the Premises. • (f) Pay for all utilities, including water,. gas and electricity, consumed by it. Landlord shall, at its own expense, install all meters to measure the consumption of gas, water, and electricity. Landlord shall not be liable 15 - IA; • • ' • ; to Tenant for failure of any utility unless such failure is due to the negligence or wrongful act of Landlord, and provided that Landlord diligently prosecutes. the work necessary to remedy the failure of supply. ARTICLE 18. INDEMNIFICATION AND • LIABILITY INSURANCE 51801. Tenant shall save Landlord harmless. and. indemni- fy it from and against all injury, loss,.claims and damage to any person or property while on or about.the Demised Premises, arising out of the use or occupancy of the Demised Premises by Tenant (unless caused by the act,' negligence or default of Landlord, its employees, agents, licensees or contractors, or occasioned by any nuisance. made or suffered by Landlord on the Demised Premises), and.from and against all injury, loss, claim or damage to any person or property anywhere occasioned by any act, neglect or default of Tenant. Tenant shall maintain with respect to the.Demised Premises public' liability insurance with limits of $100,000.00 /$300,000.00 and property damage insurance 4n limits of $10,000.00 with excess liability coverage of $1,000,000, in companies qualified to do business in the §tats in which the Shopping.Center is located, insuring Landlord as well as Tenant against injury to persons or damage to property as herein provided. 51802. Landlord shall save Tenant harmless and in- demnify it from and against all injury,.loss, claims or dinage to any person or property while on or about the parking areas, roads, ways, walks and approaches•in and to the Shopping,Center (unless caused by the act, negligence or default of Tenant, its employees, agents,' licensees or . . contractors), and from and against all injury,' loss, claims or damage to any person or property anywhere, including the Demised Premises, occasioned by the act, negligence or default of Landlord, or Landlord's failure to perform and observe its obligations under the terms of this lease. Landlord shall maintain with respect to the Shopping. Center, including the Demised Premises, comprehensive general liability insurance with single limit of at least $1,000,000:00 in responsible companies qualified to do businese.in the State in which the Shopping Center is located, insuring Tenant as well as Landlord against injury to persons or damage to property as herein provided. 51803. Each party hereto shall deposit.with the other certificates of such insurance to be carried.by it, at or prior 'to the commencement of the term,. or earlier opening under Section 402, and thereafter within.30 days prior to the expiration of such policies. Such policies shall to the extent obtainable provide that the policies may not be cancelled without at least 30 days' prior written notice to each assured. Such insurance may be maintained by Landlord or Tenant under a blanket policy or policies covering other locations of the insured or those of its parent, subsidiaries or affiliates. • ARTICLE-19. ASSIGNMENT- SUBLETTING 51901. Tenant may assign this lease or sublease the • Demised Premises, or any portion thereof, without obtaining the prior written consent of Landlord thereto; provided, however, that the principal use of the Demised Premises by any assignee or sublessee shall not be directly competitive with the principal use of any other tenant in the Shopping Center at the time such assignment or sublease is made. 51902. Notwithstanding any assignment or sublease, Tenant shall remain fully liable on this lease. • ARTICLE 20. SIGNS • 82001. Landlord shall have a uniform scheme for the style, illumination, size and placement of the exterior signs of all tenants of the Shopping Center so that all signs will be flat against the building and no one sign•will interfere with the ready visibility of Tenant's sign from any adjacent or nearby street, or road or the parking area, or dim the brightness of Tenant's. sign by reason of the use of greater candle- power. 52002. Tenant shall have the right to place, maintain and replace on or over the front of the Demised Premises signs of a style, color and design, and bearing Tenant's distinctive lettering,. similar to those used at other store locations of Tenant or Tenant's affiliates, and conforming to all applicable laws and ordinances. 52003. Tenant shall have the right to maintain, place and install its usual and customary window displays, signs and advertising matter, and fixtures, in and on the show windows and the interior of the Demised Premises, including but without being limited to, flat paper signs on the exterior thereof. $2004. Tenant shall maintain said signs in'a good state of repair and save the Landlord harmless from any loss, cost or damage as a result of the erection, maintenance, existence or removal of the same, and shall repair any damage which shall have been caused by the erection, existence, main- tenance, or removal of such signs. Upon vacating the premises, Tenant shall remove all signs and repair all damage caused by such removal. ARTICLE 21. FIRE INSURANCE 52101. Landlord shall, from and after the date of the execution of this lease, keep the building of which the Demised Premises are a part, including any improvements and betterments which may be made by Tenant to the extent that the same are customarily insurable as part of the realty and may be covered by Landlord's insurance, insured against loss or damage by fire and any of the casualties included in the broadest standard form obtainable of extended coverage or supplementary contract endorsements, in an amount sufficient to meet the co- insurance requirements of the policies, but ' not less than 90% of the full replacement value thereof, exclusive of the foundations, and against damage from sprinkler leakage. Tenant shall pay, as additional rental, Tenant's Insurance Increase, as hereinbelow defined. For the purposes of this Articles - 17 - V • r • (a) "base insurance year" is the first twelve month period (after the commencement of the term hereof) for which the Shopping Center is insured against fire and extended coverage risks as a completed Shopping Center; • (b) "insurance escalation year" is any twelve month period after the base insurance year in which the premiums for fire and extended coverage insurance on the Shopping Center exceed such premiums for the base insurance year; (a) "Landlord's insurance increase" is the excess referred to in (b) of this. Section 2101; (d) "Tenant'd insurance increase" is the Tenant's proportionate share of Landlord's insurance increase and is computed by multiplying Landlord's insurance increase (exclusive of any commissions or credits to Landlord) by a fraction, the numerator of which is the gross square foot area of the Demised Premises and the denominator of which is the gross square foot area in all buildings of the Shopping Center. Tenant shall pay Tenant's insurance increase within fifteen (15) days after-receipt of bill therefor from Landlord accompanied by a true copy of Landlord's insurance bills and the facts and • information needed to calculate Tenant's insurance increase. • 52102. Landlord and Tenant hereby respectively release the 'other from any and all liability or responsibility to ' the other or anyone claiming through or under them by. way of subrogation or otherwise for any loss or damage to property •• caused• »by4II.dre••or- any.o5. 6he•.extended..covenage .or-supple- mentary contract casualties, even if such fire-or other casualty shall have been caused by the fault•or negligence of the other party, or anyone for whom such party may be responsible, provided, however, that this release shall be • applicable and in force and effect only with respect to loss or damage occurring during such time as the releasor's policies shall contain a clause or endorsement to the effect that any such release shall not'adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder. Each of Landlord and Tenant agrees that it will request its insurance carriers to include in its policies such a clause or endorsement. If extra cost shall be charged therefor, each party shall advise the other • thereof and of the amount of the extra cost, and the other party, at its election, may pay•the same, but shall not be obligated to do so. If such extra cost is not so paid by the other party such clause or endorsement need not be obtained. ARTICLE 22. INJURY OR DESTRUCTION $2201. If the Demised Premises shall be damaged or destroyed by fire or other casualty at any time during the term of this Lease or any renewal term of this Lease, this Lease shall nevertheless continue in full force and effect and Landlord shall promptly, at Landlord's expense, repair, restore or rebuild the Demised Premises upon the same plan as immediately before such damage or destruction, in a good a • a and workmanlike manner in compliance with all requirements of law and of Government rules and regulations. Prom the time of the damage or destruction and during the period of repairing or rebuilding. #nd until the sixtieth day after the Demised Premises are repaired and returned in good and tenantable condition, the minimum guaranteed rent herein reserved shall be abated and cancelled: provided, however, that if Tenant, in its own and sole judgment shall use any of the Demised Premises for the sale of its merchandise during the period that the Demised Premises are being repaired or restored, then the minimum guaranteed rent shall be fairly and justly apportioned and Tenant shall pay a fair or just proportion thereof according to the space which Tenant in its sole and absolute judgment may use for the sale of its merchandise during the period of repair or restoration. S2202. In the event Landlord fails within three (3) months after such damage or destruction to commence to rebuild the Demised Premises, then and in that event Tenant without prejudice to all other remedies Tenant may have under this'Lease or in law or in equity shall have the option of terminating and cancelling this Lease. Provided, however, that if the commencement of such rebuilding is delayed by reason of inability to obtain materials, strikes, wars or hostilities of foreign powers or acts of God, then . the time for the commencement of such rebuilding shall be • extended for a time equal to the period of the delay occasioned* by such inability to obtain materials, strikes, wars or hostilities of foreign powers or acts of God. Notice of cancellation to be effective shall be given by Tenant to Landlord by certified or registered mail, return receipt requested, not later than seven (7) months after such damage .or-destruction, and upon.xhe •giving of . such . notice, this Lease shall come to an end and'terminate as of.the date of such damage or destruction. $2203. If Landlord shall have duly commenced the re- building of the Demised Premises but shall fail to substantially complete the repair or rebuilding of the Demised Premises within six (6) months or finally complete same within eight (8) months after the damage or destruction, then Tenant, without prejudice to all other remedies Tenant may have under this Lease in law or in equity, shall have the option of terminating and cancelling this Lease. Provided, however, that if the completion of such repair or rebuilding is delayed by reason of inability to obtain materials, strikes, wars or hostilities of foreign powers or acts of God, then the time for the completion of such repair or rebuilding shall be extended for a time equal to the period of the delay occasioned by such inability to obtain materials, strikes, wars or hostilities of foreign powers or acts of God: Notice of cancellation to be effective shall be given by Tenant to Landlord by certified or registered mail, return receipt requested, not later than fourteen (14) months after such damage or destruction, and upon the giving of such notice, this Lease shall come to an end and terminate as of the date of such damage or destruction. S2204. During the last three (3) years of the term hereby granted or the last three (3) years of any extended term, if the Demised Premises should suffer such damage or destruction that the cost of restoration shall be in excess •• •• .• , . 1 'of sixty (609) of the replacement value immediately prior to such damage or destruction, either party hereto shall be entitled by notice to the other, given within thirty (30) days after such damage or destruction, to terminate this Lease, and this Lease together with any and all rights of extension, shall terminate on the thirtieth (30th) day after the giving of such notice as if that day had originally been fixed as the expiration date of the term herein demised, and the rent shall be adjusted as of the occurrence of any such damage or destruction; and in the event of termination of this Lease, the proceeds of fire insurance with extended coverage on the Demised Premises carried by Landlord pursuant • to Section 2101 hereof, shall be the property of Landlord. S2205. Any notice given by Landlord to Tenant pursuant to Section 2204 shall be nullified if, prior to the expiration of such thirty (30) days notice, Tenant shall give Landlord notice of an election to exercise the right of extension of the term of this Lease for a further term of at least eight (8) years, pursuant to the provisions of Section 601 hereof. 52206. In the event any building•or buildings in the Shopping Center, other than the Demised Premises, shall be destroyed or damaged by fire or other hazard, during the term of this Lease, or any renewal thereof, Landlord shall promptly and diligently reconstruct and restore said buildings to substantially the same condition as before the occurrence of such damage or destruction. If, for any reason whatsoever, such reconstruction is not completed within one (1) year after the occurrence of such'damage or destruction, unless Landlord be prevented from' completing such reconstruction by • . causes or conditions beyond its control (in which event the said one (1) year shall be extended for a period equal to such :period of delay) then Tenant may, at its sole option, terminate this Lease by giving thirty (30) days' prior written notice to Landlord of its intention to do so. In the event of such termination, rental shall be adjusted as of the date of termination and Tenant shall have no further obligations hereunder. ARTICLE 23. EMINENT DOMAIN -THE WHOLE S2301. If the whole of the Demised Premises shall be taken under the power of eminent domain by any public, quasi- public or'private authority, then this lease shall, at the option of Tenant, terminate and expire as of the date of such taking, and any unearned rent or other charges or rentals, if any, paid in advance, shall be refunded to Tenant. §2302. If any public, quasi - public or private authority shall, under the power of eminent domain, make a takings (a) resulting in the reduction of the size of the Demised Premises so that the remaining Premises are not, in Tenant's opinion, reasonably suitable for the conduct of Tenant's business; or (b) resulting in the reduction of the parking areas in the Shopping Center, so as to reduce the amount of parking space mentioned in Section 1001i or (o) as a result of which any Key Tenant (or substitute) ceases the conduct of business in the Shopping Center; or (d) which shall deprive the Demised Premises or • the Shopping Center of adequate and convenient access to any -20- J•• 111 • of the principal roads or streets servicing the Shopping Center, other than a temporary loss of such access for a reasonably short duration. then Tenant may, at its election, at any time within four (4) months after the taking, terminate this lease by giving Landlord written notice of its election, so to do. S2303. If this Lease is not terminated as aforesaid, it shall continue in full force and effect, and Landlord shall, at its expense, as speedily as circumstances permit, restore the remaining Premises, including any and all improvements made theretofore, to an architectural unit suitable for Tenant's business, and as nearly as practicable, like the Premises as they were constituted before said taking, and Landlord shall restore the parking.areas and the Shopping Center, as nearly as practicable, to the condition they were in prior to such taking. The minimum rent reserved in Article 7, and any other charges or rentals payable by Tenant hereunder, shall be suspended until what may remain of the Demised Premises, the parking areas and Shopping Center shall be restored as aforesaid, and thereafter shall be reduced to a fraction of the former amount which the value of the untaken Premises (appraised after the taking . and the restoration) bears to the value of the Demised Premises immediately before the taking; provided, however, that if Tenant does operate the Demised Premises during said restoration, then in that event the volume of business shall be included in gross sales for purposes of computing per- centage rental. ARTICLE 24. DEFAULT a _52401. •.If..Tenant .defaults.. (a)..in .the .payment of rent or additional rent and fails to cure the default within 15 days after receipt of written notice thereof, or (b) in the performance of any of the other covenants or conditions hereof, and fails to cure the same within 30 days after the receipt of written notice specifying the default or within such additional period of time beyond said 30 days as shall be required by reason of strikes, lookouts, acts of God, governmental restrictions or prohibitions or other causes beyond Tenant's reasonable control, whether similar or dissimilar to the foregoing, then at the expiration of said 15 days, in the case of a default described in (a), or at the expiration of said 30 days (or longer period as aforesaid), in case of a default described in (b), Landlord may cancel and terminate this Lease on not less than 15 days notice to Tenant, and on the date specified in said notice, unless prior thereto the default shall have been cured, the term of this Lease shall terminate and expire, and Tenant shall then quit and surrender the Premises to Landlord, but Tenant shall remain liable as hereinafter provided. If the lease shall have been so cancelled and terminated by Landlord, Landlord may at any time thereafter resume possession of the Premises by any lawful means and remove Tenant or other occupants and their effects and hold the Premises as if this Lease had not been made. S2402. In any case whore Landlord has recovered possession of the Premises, Landlord may at Landlord's option cause the Premises to be redecorated and prepared for reletting, and may occupy or relet the Premises or any part thereof as agent of Tenant or otherwise, for a term or terms to expire prior to, at the same time as, or subsequent to the ex- piration of the term of this Lease, at Landlord's option, and receive the rent therefor, applying the same first to the payment of such reasonable expenses (hereinafter called - 21 - y • ' • ' "resumption expenses ") as Landlord may have incurred in connection with said resumption of possession, redecorating, or preparing for reletting, and the reletting, including brokerage and reasonable attorney's fees, and then to the payment of damages in amounts equal to the rent hereunder and to the reasonable cost and expense of performance of the other covenants of Tenant as herein provided; and Tenant agrees,-whether or not Landlord has relet, to pay to Land- lord damages equal to the rent and other sums herein agreed to be paid by Tenant, lees the proceeds of the reletting, if any, as ascertained from time to time,, and the same shall be payable by Tenant on the several rent days above specified. No such reletting shall constitute a surrender and acceptance or be deemed evidence thereof. If the Landlord shall elect, pursuant hereto, actually to occupy and use said Premises or any part thereof during any part of the balance of the term as originally fixed or since extended, there shall be allowed against the Tenant's obligation for rent or damages as herein defined, during the period'of the Landlord's occupancy, the reasonable value of such occupancy, not to exceed in any event the rent herein reserved and such occupancy shall not be construed as a release of the Tenant's liability hereunder. S2403. Tenant hereby waives all right of redemption to which Tenant or any person claiming under Tenant might be entitled by any law now or hereafter in force. 52404. Notwithstanding anything to the contrary con- tained in this Lease, Tenant shall not be deemed in default under this Lease unless and untiL the time to cure the default as provided in this Article 24, has passed without its being oure4. 52405. Tenant agrees that if Tenant shall make any assignment for'the benetfit of creditors or shall be adjudged a bankrupt, or if a receiver is appointed for Tenant or its assets or Tenant's interest under this Lease, and the appointment of such receiver, if involuntary, is not vacated within 90 days, or if Tenant shall file or have filed against it a petition under or pursuant to any of the provisions of the U.S. Bankruptcy Act or any amendment thereof or sub- stitute thereof, and such petition, if involuntary, is not vacated within 90 days, then and in such event Landlord may, upon giving Tenant 15 days' notice of such election, terminate this lease as in the case of a violation by Tenant of any of the terms, covenants or conditions of this Lease. ARTICLE 25. SUBORDINATION 52501. Tenant shall, at any time upon request of Land- lord, execute for recording an agreement whereby Tenant will subordinate the estate hereby demised to any new insti- tutional first mortgage placed by Landlord upon the Demised Premises or any property of which the Demised Premises is a part, provided and upon condition that said agreement shall contain specific provisions against the disturbance of the possession of Tenant and of the parking rights of Tenant as herein contained and the following additional Frovisions: (a) So long as Tenant continues to pay the rent as in said lease reserved and otherwise complies with the terms and provisions of the said lease, the right of possession of Tenant of the Demised Premises, the rights to the use of the parking areas hereinbefore described, and the terms and provisions of said Lease shall not be affected or disturbed by Mortgagee in the exercise of any of its rights under said mortgage or the bond or debt secured thereby, or otherwise by law provided; 11 ♦ • 1 111 A 1 . 1.• a 11 • .d% • 0 I ' • • 1 (b) In the event that Mortgagee comes into possession . of or ownership of the title of the Demised Premises or of said parking areas by foreclosure of the said mortgage, or by proceedings on the said bond or otherwise, said Lease and all rights of.Tenant thereunder shall continue in effect and shall not be terminated by any of said proceedings: (o) In the event that said Premises or said parking areas are sold or otherwise disposed of pursuant to any right or any power contained in the said mortgage or the bond, or as a result of proceedings thereon, the purchaser of said Premises or said parking areas at such sale, or any person acquiring title through or by virtue of said sale, shall take title subject to said Lease, and all rights of Tenant thereunder, (d) If the Demised Premises is damaged by fire or other casualty, for which under any of the insurance policies therefor the loss is payable to the Mortgagee, Mortgagee agrees that such insurance funds when payable to it, will be made available for the purpose of repair or rebuilding of • the Demised Premises, as provided in said Lease: (e) This Agreement shall be binding upon and inure to the benefit of Mortgagee, owner.and Tenant, and their respective heirs, executors, administrators, successors and assigns. • S2502. In the event that the Shopping Center, or any portion thereof, or the Demised Premises shall be subject to any existing mortgage as of the date of execution of this Lease, Landlord shall obtain and deliver to Tenant the agreement of each holder. of such mortgage or mortgages simultaneously with the execution hereof in the form here - inabove provided, and until delivery of such.agreement or agreements, Tenant shall not be obligated.to perform any of its agreements or covenants hereunder. 52503. The word "mortgage" as used herein includes mortgages, deeds of trust or other similar-instruments, and modifications, extensions, renewals and replacements there- of, and any and all advances thereunder. "Institutional Mortgagee" shall mean either a savings or commercial bank, trust or insurance company, governmental agency or bureau, pension or retirement fund, labor union, teachers' association• or an educational or philanthropic institution regularly engaged in lending money secured by mortgages. ARTICLE 26. SELF -HELP • 52601. If Landlord or Tenant shall default in the performance or observance of any covenant, condition or other provision in this Lease contained on its part to be performed or observed., the other party may, at its option, without waiving any claims for breach of agreement, and after written notice which is reasonable under the cir- cumstances, cure such default for the account of the de- . faulting party, and the defaulting party shall reimburse the other for any reasonable amount paid and any reasonable expense or contractual liability so incurred, with interest at the rate of 6% per annum. Landlord may collect any such amount as additional rent, and Tenant may deduct any such amount from rental payments next thereafter accruing. -23- • • ARTICLE 27. WAIVER OP TRIAL BY JURY 52701. It is mutually agreed by and between Landlord and Tenant that the respective parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of this Lease, the relationship of Landlord and Tenant, or Tenant's use or occupancy of said Premises. ARTICLE 28. QUIET ENJOYMENT 52801. Landlord covenants and agrees that upon Tenant paying the rent and observing and performing all the terms, covenants and conditions on Tenant's part to be observed and performed, Tenant may peaceably and quietly have, hold, occupy and enjoy the Demised Premises and all the appurtenances thereto (including without being.limited to the common facilities of the Shopping Center) without hindrance or molestation, except as to any portion taken under the power of eminent domain. ARTICLE 29. ZONING AND GOOD TITLE 52901. Landlord covenants, warrants and represents that it has a good and valid option to purchase the Shopping Center and that, before construction of the Demised Premises commences, and within one hundred eighty (180) days after the date hereof, the following covenants, representations and warranties of Landlord, will be true and corrects (a) it is the owner in fee simple absolute of the Shopping Center and has good and marketable title thereto; (b) Landlord has full right and lawful authority to execute this lease for •the..term, .in. the manner.,. ,and..upon .the conditions and provisions herein contained; there are no liens upon the Shopping Center superior to this Lease except an institutional first mortgage as hereinabove defined; (c) there is'no deed or lease restriction or other legal impediment (including without limitation any zoning or other ordinance, law or regulation) to the construction of the Shopping Center or to the use thereof for shopping center purposes, or to the granting of the easements ae herein provided for the use of the parking areas, access roads and other common areas and facilities, or to the use of the Demised Premises for the purposes for which they are let hereunder. In addition to any other rights and remedies for breach of Landlord's covenants, representations and warranties in this Article, Tenant shall have the right to cancel and terminate this Lease. As soon as reasonably possible after the date hereof, but in any event prior to the commencement of construction by Landlord as required pursuant to Article 9 hereof, Landlord shall furnish Tenant with evidence satisfactory to Tenant of the accuracy of the covenants, warranties and representations contained in this Section, which evidence shall include copies of title report and building permits. In the event any such legal impediment to the construction or use of the Demised Premises as a food supermarket shall exist, the Landlord shall cause the removal of such legal impediments, at Landlord's sole cost and expense. In the event that it is impossible to remove any such legal impediment before construction commences and within sixty (60) days after Landlord's acquisition of the Shopping Center site, Landlord r � 1 shall have the right to terminate this Lease provided Landlord reimburses Tenant for its out -of- pocket expenses in connection with this Lease and the preparation of plans and specifications for the Demised Premises. S2902. This Lease, and the respective rights and obliga- tions of Landlord and Tenant hereunder, shall be subject to and conditioned upon Tenant's continued ability to use the Demised Premises for a supermarket. If at any time during the term of this Lease or any renewal hereof, Tenant cannot use the Premises for a supermarket, through no act or neglect of Tenant, then in such event Tenant shall have the•right to cancel this Lease upon giving to Landlord thirty (30) days prior notice, accompanied by appropriate evidence from the constituted authorities that Tenant has, through no fault of 'Tenant, been denied the use of the Demised Premises as a supermarket: whereupon this Lease Agreement and the respective rights and obligations of•the parties hereto shall be null and void and of no further force and effect. ARTICLE 30. EXCUSABLE DELAYS $3001. In any case where the time for either party to perform any act or thing is limited hereunder, the time for the performance thereof shall be extended (except as specifically provided in Section•904(a)) by a period equal to any delay caused by or resulting fromact.of God, war, civil commotion, fire or other casualty, labor difficulties, shortages of . labor, materials or equipment, government regulations or other causea beyond such party's reasonable control, whether similar or dissimilar to the foregoing and whether such time be 'designated by'a fixed'Hate, •h' fixed• time or a • "reasonable time ". ARTICLE 31. HOLDOVER. 53101. If Tenant continues in occupancy of the Demised Premises after the expiration of the term, or of any ex- tended term, such occupancy shall not be deemed to extend or renew the term of this Lease, but such occupancy shall continue as a tenancy from month to month upon the terms, covenants, conditions and provisions and at the rental in effect at the end of the term, (or extended term) the rental to be prorated and payable for the period of such occupancy. ARTICLE 32. NO WAIVERS S3201. Failure of either party to complain of any act or omission on the part of the other party, no matter how long the same may continue, shall not be deemed to be a waiver by said party of any of its rights hereunder. No • waiver by either party at any time, express or implied, of any breach of any provision of this Lease shall be deemed a waiver of a breach of any other provision of this Lease or a consent to any subsequent breach of the same or any other provisions. If any action by either party shall require the consent or approval of the other party, the other party's consent to or approval of such action pn any one occasion shall not be deemed a consent to or approval of'any other action on the same or any subsequent occasion. - 25 - a at • t� •4 a u S I II M $3202. Any and all rights and remedies which either party may have under this Lease or by operation of law, • either at law or in equity, upon any breach, shall be distinct, separate and cumulative and shall not be deemed inconsistent with each other; and no one of them, whether exercised by said party or not, shall be deemed to be in exclusion of any others and any two or more or all of such rights and remedies may be exercised at the same time. ARTICLE 33. PAYMENTS OR WORK UNDER PROTEST $3301. If at any time a dispute shall arise as to any amount or sum of money to be paid by one party to the other under the provisions hereof, the party against whom the obligation to pay is asserted shall have the right to make payment "under protest" and such payment shall not be re- garded as a voluntary payment, and there shall survive the right on the part of said party to institute suit for the recovery of such sum, and if it shall be adjudged that there .was no legal obligation on the part of said party to pay such sum or any part thereof, said party shall be entitled to recover such sum or so much thereof as it was not legally required to pay under the provisions of this Lease, with interest thereon at the rate of 6% per annum. $3302. If at any time a dispute shall arise between the parties hereto as to any work to be performed by either of them under the provisions hereof, the party against whom the obligation to perform the' work is asserted may perform such work and pay the coat thereof• "under protest" and the per= formance of such work shall in no event be regarded as a voluntary performance, and there shall survive the right on the part of said party to institute suit for the recovery of the cost of such work, and if it shall be adjuged that there 'was no legal obligation on the part of said party to perform the same or any part thereof, said party shall be entitled to recover the coat of such work or the coat of so much thereof as said party was not legally required to perform under the provisions of this Lease, with interest thereon at the rate of 6% per annum. $3303. Whenever a payment is made or work is done "under protest ", as in this Article 33 provided, the party doing so shall before making any such payment or doing any such work, notify the other party in writing that it is doing so "under protest." Landlord may collect any sum it is entitled to under this Article 33, as additional rent, and Tenant may, if it chooses, deduct any such sum from rents and additional rents thereafter due hereunder. ARTICLE 34. NOTICES $3401. All notices and other communications authorized or required hereunder shall be in writing and shall be given by mailing the same by certified mail or registered mail, return receipt requested, postage prepaid, and any such notice or other communication shall, unless otherwise speci- fically provided herein, be deemed to have been given when received by the party to whom such notice or other communi- cation shall be addressed. If intended for Landlord the 1 • • • • •• '' • • • . • •., , • • • S • II • 16 • r • • '1 • • .• same shall be mailed to the Landlord at 2505 N. Front Street, Harrisburg, Pennsylvania, 17110 or at such other address as Landlord may hereafter designate by notice to Tenant; and if intended for Tenant, the same shall be mailed to Tenant at Route 11 and Shady Lane, Carlisle, Pennsylvania, 17013 or at such other address or addresses as Tenant may hereafter designate by notice to Landlord. ARTICLE 35. SEPARABILITY $3501. If any term, covenant, condition or provision of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons gr circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition and provision of this Lease shall be•valid and be enforceable to the fullest extent permitted by law. ARTICLE 36. OWN COST AND EXPENSE $3601. Wherever in this Lease Landlord and Tenant is required or permitted to do any work, or perform any act, such work and such act shall be done or performed at the• sole coat and expense of the party doing or performing the same except as specifically provided otherwise. ARTICLE 37. INVESTMENT CREDIT $3701. Landlord shall make timely elections pursuant to Section 48(d) of the Internal Revenue Code of 1954, as amended ( "Code "), by delivering to Tenant the statement • • ••required by•thc GOde •for-such..purpose •in the form •attached hereto and.made a part hereof as Exhibit "D ", pursuant to which Tenant will be treated as having acquired all tangible personal property possession of which is transferred here- under to Tenant in any taxable year of the Tenant during the term of this Lease. Such elections shall be made in every year in which eligible personal property as defined in Section 38 of the Code and regulations thereunder shall come into the possession of Tenant pursuant to this•Leese. . ARTICLE 38. MISCELLANEOUS $3801. This Lease shall be strictly construed neither against Landlord nor Tenant. • $3802. Whenever the context shall require or admit it, the singular number shall be held to include the plural number, and vice versa, and words of any gender shall be deemed to include any other gender. S3803. Whenever a specific date mentioned in this Lease is not a business day then it shall be taken to mean the next business day. 53804. The marginal and index headings in this Lease are used only for convenience in finding the subject matters, and are not•to be taken as part of this, Lease, or to be used in determining the intent of the partials. ,•• • • • • ..; .1 . S • u • I a .. • • u S380S. Except as herein otherwise expressly provided, this Lease and all the terms, covenants and conditions hereof shall apply to, be binding upon and inure to the benefit of the heirs, executors, administrators, repre- sentatives, successors and assigns, respectively, of the parties hereto. ARTICLE 39. ADDITIONS S3901. Tenant shall have the right, (but not the ob- ligation) at its expense, or at Landlord's expense as hereafter provided, to construct or have Landlord construct additions, up to an additional 10,000 square feet of space, to its demised store building (hereinafter called "additions ") in the area designated "Expansion Area" on•Exhibit "A ", or any part(s) thereof, in accordance with plans and specifications prepared by Tenant and approved by Landlord. Landlord's approval of same will not be unreasonably withheld or delayed. Such Expansion Area shall remain common area, subject to the right of Tenant to erect additions on all or any part thereon, until such time as Tenant shall exercise its right to erect additions thereon. Tenant shall have no right to erect an addition during the last nine (9) years of the initial term or at any time thereafter unless it first exercises a sufficient number (one or two, as the case may be) of five -year options so that the Tenant will then be committed to a minimum lease term of ten (10) years. Any such addition, when' completely constructed, shall become the property of Landlord and shall be included as part of Tenant's demise3 store building and shall be subject to all terms and conditions of this Lease. If the addition is constructed by Tenant, Landlord will not ..be..nesponsible...for .defects .resulting .from faulty workmanship or materials and Tenant, at its expense, ehall.be responsible for obtaining all necessary authorizations from the govern- mental authorities having jurisdiction thereover, for the erection of any addition; which authorizations Landlord agrees Tenant may obtain in its name or Landlord's name, and Landlord agrees to cooperate fully in obtaining said authorizations. Landlord covenants that it shall delineate the Expansion Area as an area of possible construction in all leases respecting any portion of the land described on Exhibit "B" and in all plans and drawings submitted by or on behalf of Landlord with respect to obtaining the necessary authoriza- tions from the governmental authorities having jurisdiction thereover for the construction of the improvements shown on Exhibit "A" and, to the extent possible, at the time Land- lord obtains such authorizations, will obtain authorization for the construction of addition(s) in the Expansion Area. Tenant shall have no obligation to remove any additions, to the extent constructed, upon termination of this Lease. During the course of construction of any such addition by Tenant, Landlord shall, at Tenant's option, carry casualty insurance on such addition, in such amounts and in such forms as may be requested by Tenant, naming Tenant as an insured, and Tenant shall reimburse Landlord for the cost of premiums for said insurance (to the extent such premiums do not exceed the regular rates charged for the type of insurance) upon receipt of bills showing payment.thereof. Tenant shall reimburse Landlord for any partial real estate tax assessr meets separately assessed against such addition during -28- • • . I1 • , • S construction thereof within`th'irty (30) days after Tenant is furnished with a receipted bill showing payment thereof. If Tenant constructs the addition, it shall pay for same, subject to reimbursement as set forth in S3904, and if any. mechanics' lien should be filed for such work, Tenant will procure its removal within thirty (30) days after notice thereof, from Landlord. 33902. Before commencing construction of an addition, as provided by this Article, Tenant will give Landlord notice of its intention, accompanied by the plans and speci- fications for such addition. Within forty -five (45) days after said notice is•sent, Landlord shall advise Tenant of the cost of constructing such addition ( "Landlord's Cost "). Such cost shall include all costs, charges, and expenses for completion of the work in accordance with the plans and specifications, including, but not limited to, architect's and engineer's fees, cost of insurance during construction, cost of obtaining necessary governmental approvals and the cost of the purchase and installation of all machinery and mechanical equipment. If Tenant can erect the addition for less than Landlord's Cost, it may, within thirty (30) days after Landlord's advice, advise Landlord of the price for which it can erect the same ( "Reimbursable Price "). In such case, Landlord shall, within fifteen (15) days thereafter, by.notice in writing to Tenant, elects (a) To construct the addition at the price quoted by Tenant: or (b) To permit Tenant, at iti option, to construct the addition a.id, upon completion, reimburse Tenant in the amount of the Reimbursable Price. If, after receipt of.Tenant's advice, Landlord elects to construct the addition pursuant to subparagraph (b) above, Landlord shall commence work on the addition within sixty (60) days after sending its election and will complete the same within 180 days after sending iti election. On the first day of the second full month after completion of said addition in accordance with said plans and speci- fications, minimum rent shall be increased by an amount equal to Landlord's Cost multiplied by the "Adjustment , Percentage" as hereinafter defined. If Landlord elects to permit Tenant to construct the addition, Tenant will complete the addition within 180 days after receipt of such election and shall give Landlord notice of such completion. Landlord shall, within sixty (60) days after receipt of such advice, pay Tenant the Reimbursable Price and, on the later of (i) the date such payment is actually made, or (ii) the first day of the second full month after completion of said addition in accordance with said plans and specifications, minimum rent shall be increased by an amount equal to the amount so paid multiplied by the "Adjustment Percentage" as hereinafter defined. If Tenant cannot erect the addition for less than Landlord's Cost, it may, within thirty (30) days after Landlord's advice, advise Landlord to construct the addition in accordance with the plans and specifications. Landlord -29- r r 1 J. S r Y ®halo commence in rk on the addition with ixty (60) day's after Tenant so advises Lendlo =d to construct the same (if Tenant so advises Landlord) and will complete the same within 180 days after Tenant advises Landlord to construct the addition. On the first day of the second full month, after completion of said addition in accordance with said plans and specifications, minimum rent shall be increased by an amount equal to Landlord's Cost multiplied by the "Adjustment Percentage?" as hereinafter defined. . . In the event Tenant becomes liable for additional minimum rental as aforesaid, the Volume Allowance above which percentage rental is due as set forth in Article 7 shall be adjusted upward to a figure, 1.25• of which will equal the minimum rent as adjusted. "Adjustment Percentage" shall mean that percentage which is equal to the annual constant rate at which Landlord borrows funds for the long-term financing of the addition plus is; provided however that if Landlord does not enter into a "permanent" or long -term financing arrangement to finanbe the addition, the Adjustment Percentage shall be the most favorable annual constant which could have been obtained had Landlord sought "permanent" or long -term financing; and provided further that if Tenant shall • be able to obtain "permanent" or long -term financing for Landlord at an annual constant less than that obtained by Landlord, the Adjustment Percentage shall be said lower annual constant. Por purposes of this paragraph "permanent" or long -term financing shall mean financing for d term of not lens than fifteen years nor more than twenty -five years. ' The time for completion by Landlord or Tenant • shall be extended by a period equal to delay resulting from the•elements, strikes or lockouts, material shortages, acts of God, or other causes beyond the control of the party involved. The party involved shall notify the other of the commencement and termination of such delays. 83903. If any additions are constructed to the Demised Premises, the amount of percentage rental due in any lease year, pursuant to Article 7, commencing with the lease year in which construction of the addition is commenced, shall be reduced as follows; (a) A credit in an amount equal to the entire amount of any tax payments payable by Tenant pursuant to the provisions of $3905(x) for the•lease year for which•per- centage rental is due. (b) A credit in the entire amount of.any payments due on account of casualty•and dire insurance payable by Tenant pursuant to 53905(b) for the lease year for which percentage rental is due. S3904. If this lease is terminated pursuant to Article 22 after damage or destruction by fire or other casualty, or if this least.; is terminated by reason of condemnation, before Tenant shall have been reimbursed the cost of any addition in accordance with 53902, in addition to any.other rights of Tenant hereunder, the proceeds of any insurance payable by reason of such damage or destruction or any condemnation award for such taking of or damage to the Demised Premises shall be first paid to Tenant to the extent that Tenant has not been reimbursed the cost thereof as - 30 - ,�• • ♦ . • .♦ ..t 4 t • . t+ + r t provided for in 53902, whether or not said additions or part thereof are taken by the condemning authority, or whether or not said additions or parts thereof are damaged or destroyed by fire or other casualty. 53905. The following modifications of this lease on account of any such addition shall become effective upon completion of construction of the same' (a) In each lease year commencing in the first lease year in which the full value of the completed addition is included in the real estate tax assessment of the premises described on Exhibit "B ", Tenant shall pay increases in taxes resulting from the erection of the addition. Such increase, if the same cannot be separately determined, shall be an amount bearing the same ratio to the total real estate taxes on the premises with which the addition is assessed as the total floor area of the addition bears to the total floor area of all buildings, including such addition, on the premises with which the addition is assessed. If the addition is assessed together with the original building on the Demised Premises, the total floor area of the addition shall be excluded from the total floor area of the buildings in the area shown in Exhibit "B" for the purpose of computing • Tenant's proportionate share of increases in taxes on the premises described on Exhibit "8" pursuant to Article 11 hereof; and the amount of taxes.payable by Tenant hereunder as a result of erecting such additon shall be deducted from . the total increase in taxes on the premises shown on Exhibit "8" prior to computing Tenant's proportionate share of such increase pursuant to Article 11. In computing Tenant's liability under this. subparagraph •(a) for the •first lease year in which Tenant is liable for increase in -taxes hereunder and for the last year of the term hereof, the total real estate taxes on the premises shown on Exhibit "8" for that lease year shall be apportioned so as to cover only that . portion of the lease year during which the full value of the completed addition was included in the real estate tax assessment. (b) Upon completion of construction of any addi- tion, the insurance carried by Landlord pursuant to Article 21 shall be increased to reflect the value of such addition to the extent required by Article 21. Tenant shall reim- burse Landlord for payment of•premiums for such insurance attributable to any such addition within thirty (30) days after it has received a receipted bill showing payment thereof. Tenant's liability for insurance premiums here- under shall be equitably apportioned in the lease year when the addition is completed and upon termination of this Lease. The premiums for said insurance attributable to any such addition, if the same cannot be separately determined, shall be an amount bearing the same ratio to the total premiums on the buildings insured under the policy under which the addition is assured as the square footage of the floor area of such addition bears to the total square footage of all buildings, including such addition, insured as afore- said. Tenant's liability for premiuns;or portions of premiums hereunder shall not exceed regular rates charged for the class of buildings insured. If the addition is insured y ? • • t , •1 • .• 1 i • 11 �• 1 1 under the same policy with the original building on the Demised Premises, total floor area of the addition and the amount of insurance premiums payable by Tenant under this paragraph as a result of erecting such addition shall be excluded from computations pursuant to Article 21 hereof. ARTICLE 40. SHORT FORM LEASE, 54001. The parties'will at any time at the request of either one, promptly execute duplicate originals of an instrument, in recordable form, which will constitute a short form of Lease setting forth a description of the premises, a .description.of the Shopping Center, the term of this Lease and any other portions hereof, excepting the rental provisions, as either party may request. If the precise dates of commencement and termination dates of the term of this Lease are not known at the time of the execu- tion of said short form of Lease, the parties will, as soon as they are known and at the 'request of either party, exe- cute a supplemental instrument in recordable form setting forth the exact dates of commencement and termination of the term. ARTICLE 41. ENTIRE AGREEMENT - INTERPRETATION $4101. This instrument contains the entire and only agreement between the parties, and no oral statements or representations or prior written matter not contained in this instrument shall have any force or effect. This Lease shall not be modified in any way or terminated except by writing executed by both parties. The laws of the State of Pennsylvania shall govern the validity, interpretation, performance and enforcement of this Lease. • ARTICLE 42. BROKER'S COMMISSIONS 54201. Landlord shall defend any and all actions brought against Tenant for real estate broker's commissions in connection with this Lease and shall pay all real estate broker's commissions owing to any person, firm or corpora- tion for making this Lease, or arising out of negotiations for this Lease. Tenant represents that it has dealt with no broker in connection with this Lease. ARTICLE 43. NO SET -OFF 54301. Within ten (10) days after request therefor by Landlord, in the event that upon•any sale, assignment or hypothecation of the Leased Premises and /or the land there- under by Landlord, any such statements shall be required from Tenant, Tenant agrees to deliver in recordable form a certificate to any proposed Mortgagee or purchaser, or to the Landlord, certifying (if such be the case) that this Lease is in full force and effect and there are no defenses or off -sets thereto, or stating those claimed by Tenant. IN WITNESS WHEREOF, the parties hereto have executed • • 11• 1 this Lease under seal as of the day and year first above written. LESSOR Upper Allen Associates, a Limited Partnership By e4■4166-d Genera Partner LESSEE •■••••-• ene a :r ner Giant Food Stores, Inc. By jd4e. 440" Pre ident Att -33- r ecretary • • :AMENDMENT TO LEASE AGREEMENT This AGREEMENT is made as of this iIi( day of J w FRO* OFFICE , 1989, between KIMCO DEVELOPMENT OF GIANTS, INC., a Pennsylvania corporation, having an address of P. 0. Box C. Roslyn, New York 11576 ( "Landlord "), and GIANT FOOD STORES, INC., a Delaware corporation, having an office at Route 11 and Shady Lane, P. 0. Box 249, Carlisle, Pennsylvania 17013 ( "Tenant "). WITNESSETR: WHEREAS, Upper Allen Associates, as lessor, and Giant Food Stores, Inc., as lessee, entered into a Lease Agreement, dated August 29, 1975 (the "Lease "), for certain store apace, parking areas, and other demised areas in a shopping center (the "Shopping Center "), located on Gettysburg Pike in Upper Allen Township, Cumberland County, Pennsylvania, which Shopping Center is more particularly described on Exhibit A attached hereto and made a part hereof; and WHEREAS, Landlord has succeeded to all of the rights, title and inter- ests of Upper Allen Associates in and to the Lease; and WHEREAS, Landlord and Tenant desire to amend the Lease to authorize Tenant to expand its store premises; and WHEREAS, except as expressly hereinafter provided'or unless the context indicates otherwise, all capitalized terms used herein which are not defined Herein shall have the meanings ascribed to them in the Lease. ti • • • NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and agreements herein contained, and inteinding to be legally bound, do hereby covenant and agree as follows: 1. Additional Building Area 1.1 The "Original Building Area" is defined as that portion of the Shopping Center covered by the presently existing building defined in the Lease as the demised premises, and shown as such on Exhibit B attached hereto and made a part hereof. 1.2 That portion of the Shopping Center which adjoins the Original Building Area, and which is shown on Exhibit B hereto and labelled "Additional Building Area" is and shall no longer be included within the common areas of the Shopping Center, but is and shall be additional permis- sible building area ( "Additional Building Area "). 1.3 The building or buildings (constructed or to be construc- ted and /or renovated) on the Original Building Area and the Additional Building Area are hereinafter sometimes referred to collectively as the "Expanded Store ". 1.4 Commencing on the date hereof, all references to "demised premises" or "premises" contained in the Lease or in this Amendment shall mean and refer to the demised premises as that term is defined in the Lease together with the buildings and improvements thereon constructed and to be constructed upon the Additional Building Area in accordance with this Amendment. - 2 - • - 2. Possession and Construction 2.1 Upon the execution hereof, Landlord shall deliver posses- sion of the Additional Building Area to Tenant for the limited purpose of performing soil testa, staking surveys and similar examinations. Tenant shall promptly repair any damage caused by such tests and examinations and shall restore the Premises to their original condition and shall indemnify Landlord against any claims asserted against Landlord as a result of the tests, surveys and examinations performed by Tenant , including reasonable attorneys' fess. Upon satisfaction, or waiver by Tenant, of the contingen- cies set forth in Section 9 of this Amendment, Tenant shall have the right to commence construction of the Expanded Store. 2.2 Upon receiving possession of the Additional Building Area, and upon satisfaction of the conditions set forth in Section 9 of this Amendment, Tenant shall proceed in a good and workmanlike manner and with due diligence to renovate the demised premises on the Original Building Area and shall proceed to expand the same over the Additional Building Area, all as shown on Exhibit B. 2.3 In the event that Tenant has not commenced construction on the Additional Building Area within nine (9) months from the date that all contingencies contained in Section 9 of this Amendment are satisfied and /or waived by Tenant, then either Landlord or Tenant shall have the right to cancel this Amendment, but not the Lease, upon thirty (30) days written notice to the other and the relationship of the parties shall thereafter be and remain the same as if this Amendment were never - 3 - in existence and the • Lease shall continue uninterrupted and in full force and effect. Subject to the preceding sentence, and unless delayed by causes beyond Tenant's control, Tenant shall commence construction within thirty (30) days after it enters into a binding construction contract for the work. 2.4 The Expanded Store shall conform generally to, or exceed, the existing demised premises with respect to quality of construction. 2.5 Tenant shall use its best efforts to submit within ninety (90) days, but in any event not later than one hundred eighty (180) days following the date of this Amendment, complete plans and specifications for the Expanded Store to Landlord for Landlord's review and approval, which approval shall not be unreasonably withheld. Failure of Landlord to disap- prove said plans and specifications listing specific reasons for such disap- proval within thirty (30) days after Tenant submits them to Landlord shall conclusively be deemed approval by Landlord. If Landlord disapproves of the plans and specifications, Tenant shall within forty -five (45) days after receipt of Landlord's disapproval, resubmit revised plans and specifications to Landlord for Landlord's further review and approval, which approval shall not be unreasonably withheld. Failure of Landlord to disapprove the revised plans and specifications, listing specific reasons for such disapproval, within fifteen (15) days after Tenant submits them to Landlord shall conclusively be deemed approval by Landlord. 2.6 In connection with the work that Tenant is to perform in constructing the Expanded Store, Landlord agrees Tenant shall have the right to use the parking areas and any other common areas -4 immediately adjacent to 1 the Original Building Area, and to the extent practical behind the Original Building Area, in connection with such work, to have construction equipment traverse and park thereon, and to excavate and rework portions thereof as shown on Exhibit B, all as may be reasonably requird to perform such work. Tenant agrees that it shall not unreasonably interfere with the business • activities of the other tenants of the Shopping Center as currently conduc- tad, including ingress and egress to common areas, in the exercise of its rights under this section. If Landlord receives complaints from other tenants of the Shopping Center, or if Landlord reasonably determinea that Tenant's construction activities are unreasonably interfering with the activities of the Shopping Center, Landlord may direct Tenant to relocate its equipment and materials to other areas within the Shopping Center, provided such relocation does not unreasonably interfere with Tenant's abil- ity to prosecute its construction activities. 2.7 . All work to be performed hereunder shall be performed by Tenant at the sole cost and expense of Tenant and shall be performed in a good and workmanlike manner and in compliance with requirements of insurers of the demised premises. all laws and underwriting Subject to the contingen- cies set forth in Section 9 of this Amendment, Tenant acknowledges that it is familiar with the condition of the Original Building Ares and the Addi- tional Building Area, and accepts such areas "as -is" and further acknowl- edges that Landlord has made no representations or warranties with respect to the condition thereof or their suitability for any purpose. Landlord shall have no obligations to perform any work or undertake any obligations . 5 - • except as may be expressly otherwise set forth in this Amendment. Tenant may not begin demolition of any existing improvements until all permits required to commence and complete construction are obtained. In addition, upon completion of its construction. Tenant shall remove all debris from the site and restore the common areas which adjoin the Expanded Store to the condition which existed prior to construction, including without limitation, repairing and reatripping parking areas if such areas are damaged as a result of Tenant's construction. During the Construction Period, as herein - after defined, Tenant shall obtain at its expense builder's risk, general liability and workmen's compensation insurance in connection with the work, • which insurance shall be in form and content reaao ably satisfactory to Landlord. Said insurance shall be obtained from the same insurance company as presently carries the casualty insurance on the demised premises, if reasonably possible. Upon completion of construction, Tenant shall provide Landlord with any certificate of occupancy or equivalent document issued by the municipality or other governmental entity having jurisdiction. 2.8 Landlord, at Tenant's expense, will cooperate with Tenant in all respects in obtaining all approvals, permits, and licenses in connec- tion with the construction of the Expanded Store. Tenant shall be solely responsible for the coat of obtaining all such approvals, permits and licenses. 2.9 Landlord covenants, warrants and represents that: (a) Landlord is the owner of the Shopping Center and has good and marketable title thereto; - 6 - (b) Landlord has full right and • lawful authority to execute this Amendment for the term, in the manner, and upon the conditions and provisions herein contained; (c) There are no liens upon the Shopping Center superior to this Lease; (d) There are no deed or lease restrictions prohibiting the construction of the Expanded Store or to the use thereof for the purposes for which they are let, subject to the following proviso: (i) For so long as the existing pharmacy tenant, its subtenants or assignees, are operating a pharmacy in the Shopping Center, Tenant will not fill prescriptions or conduct a drug store operation in the Expanded Store; provided, however, Tenant shall be permitted to sell health and beauty aids provided such sales do not constitute the principal business being conducted within the Expanded Store; (ii) The Expended Store shall not be used as its principal purpose for the sale of the following: A. Video tapes; B. Drycleaning services; C. Branch banking services; D. Beauty salon services; or E. Pizzas or submarine sandwiches for on- premises consum,tion, 2.10 Prior to commencing any construction, if applicable, Tenant shall file or cause to be filed in the appropr 7- iate public records, • • 4 stipulations against the filing of mechanics' liens by all prima contractors and materialmen engaged in the work for Tenant. 3. Construction Period and New Rental Data 3.1 The New Rental Date shall be the earlier of (a) the date on which the Expanded Store shall be fully open for business on a regular schedule as a completed and integrated store unit; or (b) the first day of the month following the twelfth (12th) month after the date that Tenant commences physical construction of the Expanded Store, which period shall be extended by any period or periods of delay, not to exceed one hundred eighty (180) days in the aggregate, caused by or resulting from acts of Cod, war, strike, picketing, governmental action or any other causes beyond the reasonable control of Tenant. After any such delay, Tenant shall again proceed with due diligence to complete construction of the Expanded Store. Upon request, Tenant shall provide Landlord with a certificate stating the date upon which Tenant commenced physical construction of the Expanded Store. 4. Lease Term 4.1 The initial term of the Lease shall be extended for a term of twenty (20) years, commencing on the New Rental Date, except that if the New Rental Date falls on any day other than the first day of a month, the first lease year shall consist of twelve (12) full months plus the number of days in the month in which the New Rental Date occurred. The New Rental Date shall be endorsed at the end hereof, and the initial Lease term shall terminate at 12:01 a.m. on the twentieth (20th) anniversary of the New - 8 - Rental Date, unless the New Rental Date•fallo on any,day other than the first day of a month, in which case the Lease term shall terminate at 12:01. a.m. on the twentieth (20th) anniversary. of the first day, of the month following the month in which the New Rental Data occurred. ' 4.2 ; It is furthear agreed that at the expiration of the initial twenty (20) year term, the Tenant shall have the right, exercisable at its sole option, to'•extend thia'Lease for four (4) additional terms of five (5) years each, upon the same terms and conditions, except as specifically otherwise set forth herein, Provided Tenant is not in default of any provi- sion of the Lease beyond any applicable cure period, Tenant shall be deemed to have automatically exercised the next available option to extend the term of this Lease unless Tenant provides Landlord with written notice of its election not to exercise such renewal option at least nine (9) months prior to the end of the initial term, or the then - applicable renewal term, of this Lease. 5. Minimum Rent 5.1 From the date hereof to the New Rental Date, the annual minimum rental for the demised premises shall continue to be $97,936.80. 5.2 The minimum rent for the Expanded Store from and after the New Rental Data shall be: 5.2.1 Commencing on the New Rental Date and during the initial twenty'(20) year term and during the first renewal term, if applicable, the annual minimum rent shall be $175,300 payable in advance in equal monthly installments of $14,608.33. • 9 - t. e • 5.2.2 During that portion of the second renewal term, if applicable, ending on April 30, 2017, the annual minimum rent shall be $175,300 payable in advance in equal monthly installments of $14,608.33. During the balance of the second renewal term, if applicable, subsequent to April 30, 2017, the annual minimum rant shall be $236,980 payable in advance in equal monthly installments of $19,748.33. 5.2.3 During the third renewal term, if applicable, the annual minimum rent shall be $242,870 payable in advance in equal monthly installments of $20,239,17. 5.2.4 During the fourth renewal term, if applicable, the annual minimum rent shall be $259,210 payable in advance in equal monthly installments of $21,600.83. 6. Percentage Rent 6.1 Payment of percentage rent as presently required by the Lease shall continue up to the New Rental Date, provided, however, that such percentage rent actually due and payable, and the volume of Gross Sales over which percentage rent shall be payable, shall be prorated to reflect the number of daya'from the beginning of the then current lease year to the New Rental Date. 6.2 From and after the New Rental Date, and continuing throughout the remainder of the term and any renewal periods, Tenant shall pay to Landlord as rent for each lease year, in addition to the foregoing minimum rent, a sum equal to the amount, if any, by which the minimum rent payable for said lease year shall be less than le of the gross sales of the - 10 - • • Expanded Store for said lease year, said sums being sometimes called "percentage rent ". 6.3 Commencing on the New Rental Date, Tenant shall begin a new "lease year" period. The first new lease year shall be the period commencing upon the New Rental Date and terminating at 12:01 A.M. on the first anniversary of the New Rental Date, except that if the New Rental Date falls on any day other than the first day of a month, the first new lease year shall terminate at 12 :01 a.m. on the first anniversary of the first day of the month following the month in which the New Rental Date occurred. The second and succeeding lease years shall be periods of exactly twelve (12) months following successively thereafter. 6.4. In consideration for the Tenant's construction of the Expanded Store at Tenant's expense, Tenant shall be entitled to recapture its Recoverable Construction Costs, as defined in Section 11 below, by crediting 80% of the percentage rent otherwise payable to Landlord for each lease year against the Recoverable Construction Costs. The remaining 201 of percentage rent for each lease year shall be payable to the Landlord. 7. Fire Insurance and Taxes 7.1; Landlord shall continue to carry fire and extended coverage insurance on the demised premises, including the Expanded Store, in accordance with the provisions of the Lease, except that Tenant will be named as an additional insured as its interest may appear. .• 7.2 Landlord's obligation to repair and restore the demised premises in accordance with the lease shall apply to the Expanded Store and not merely the store ■s located on the Original Building Ares. 7.3 Bedews Tenant will be expending a substantial sum of money to construct the Expanded Store, it is likely that Tenant will desire to exercise an option to extend the term if required to avoid a termination of the Lease pursuant to Section 2205 of the Lease. Accordingly, notwith- standing anything to the contrary contained therein, if Tenant fails to notify Landlord of its intent to exercise a right of extension of the term of the Lease for a further term of at least five (5) years within thirty (30) days of notice from Landlord to Tenant to terminate the Lease pursuant to Section 2205 of the Lease, then Landlord shall notify Tenant of Tenant's failure to provide such notice, and Tenant shall have an additional period of ten (10) days after receipt of such reminder notice from Landlord within which to provide Landlord with notice of its intent to exercise a right of extension so as to avoid a termination of the Lease. 7.4 Tenant shall have the right to adjust with the insurance carriers the amount of loss upon such policies, subject to the approval of the holders of any mortgages upon the demised premises, which approval will not be unreasonably withheld. If either Landlord or Tenant request by notice to the other, the insurance proceeds shall be payable to any institutional lender or other proper party mutually acceptable to Landlord and Tenant to be held by same as an insurance trustee and to be advanced in accordance with normal and customary disbursement procedures and practices - 12 - • • during the course of reconstruction of the demised premises. Until Tenant has been fully reimbursed for its Recoverable Construction Costs, any excess insurance proceeds after completion of reconstruction shall be paid to Tenant. 7.5 Tenant shall reimburse Landlord for any increase in Landlord's casualty insurance premium attributable solely to the expansion of the demised premises. 7.6 Tenant shall reimburse Landlord for any increase in real estate taxes attributable solely to the expansion of the demised premises. 8. Short Form 8.1 A Short Form of this Amendment shall be executed by Land- lord and Tenant in recordable form if requested by either party. 9. Contingencies 9.1 This Amendment and the obligations of the parties here- under shall be :conditioned and contingent upon timely satisfaction of the conditions set forth in this Section 9. If such conditions are not timely fulfilled (or waived by Tenant) then this Amendment shall be null and void and the Lease shall remain in full force and effect and unchanged hereby. 9.2 The conditions of this Amendment are as follows: (a) Landlord shall have approved Tenant's plans and specifications for the Expanded Store pursuant to Section 2.5 hereof within two hundred seventy (270) days from the date hereof. (b) Tenant shall have obtained, on or before sixty (60) days after Landlord approves Tenant's plans and specifications, all the - 13 - • • permits, licenses and approvals which it shall need for the construction of the Expanded Store and related improvements, the same to be final, unappeal- able and acceptable to Tenant. The foregoing time period is based upon Tenant's agreement to affirmatively and diligently pursue the acquisition of all such permits, licenses and approvals, failing which, Landlord, at it's election, upon written notice to Tenant, shall have an equivalent period of sixty (60) days within which to pursue the acquisition of all such permits, licensee and approvals on behalf of the Tenant. (c) Within thirty (30) days from the data hereof, Commonwealth National Bank, the sole present mortgagee of the demised premises, shall have approved of and consented to this Amendment, and shall have entered into a Subordination, Nondisturbanee and Attornment Agreement with Tenant respecting the Lease in substantially the form set forth on Exhibit C attached hereto and made a part hereof. (d) Within thirty (30) 'days from the date hereof, Tenant shall have been able to obtain: a. Soil tests acceptable to Tenant. b. A title report on the Shopping Center accept- able to Tenant, the state of title of which shall not change adversely between the date of the title report and the commencement of construction of the Expanded Store by Tenant. c. A survey of the Shopping Center acceptable to Tenant. d. Assurances that acceptable utility services will be available for the Expanded Store. - 14 - 10. Notices 10.1 All notices shall be given in accordance with Section 3401 of the Lease, except that notices to the Landlord shall be addressed to Landlord at P.O. Box C, Roslyn, New York 11576, and notices to the Tenant shall be addressed to the Tenant at P.O. Box 249, Carlisle, Pennsylvania 17013. 11. Recoverable Construction Costs 11.1 Promptly after the New Rental Date, Tenant shall provide Landlord with a statement signed by Tenant's chief financial officer itemiz- ing the costa of construction of the Expanded Store (the "Construction Costs "), which statement shall be accompanied by copies of the construction contract, cancelled checks, or other reasonably detailed documentation sub- stantiating the statement. The Construction Costa shall consist of tha following costs actually incurred by Tenant in expanding and renovating the demised premises: and licenses. 11.1.1 The cost of all labor and materials. 11.1.2 The cost of all site work. 11.1.3 Governmental fees and charges, including permits 11.1.4 Architect's and engineer's fees and expenses. 11.1.5 Attorney's fees and expenses. 11.1.6 Surveys. 11.1.7 Soil and other tests and reports. - 15 - 11.1.8 Builder's risk, liability and other insurance premiums, No construction interest, actually incurred or imputed, shall be • included in the itemization of the Construction Coats. 11.2 The term "Recoverable Construction Costs" shall mean the lesser of (a) $1,250,000, plus interest thereon at six percent (6 %) per annum on a cumulative basis commencing on the New Rental Date; or (b) the Construction Coats, plus interest thereon at six percent (63) per annum on a cumulative basis commencing on the New Rental Date. 12. Subordination Agreement. The form of Subordination, Nondisturb- ance and Attornment Agreement attached hereto as Exhibit "C" satisfies the terms of Section 25 of the Lease and Tenant shall have fulfilled its obliga- tions thereunder if it executes such a document. 13. Eminent Domain. If all or any part of the demised premises, or the common areas, are taken under the power of eminent domain. Tenant shall be entitled to compensation from the condemning authority in accordance with laws then in effect, including reimbursement for any unrecovered portion of the Recoverable Construction Costs, which rights to the unrecovered portion of the Recoverable Construction Costs shall be superior to the claims of any mortgagee(s) holding mortgage(s) upon the Shopping Center: 14. Additions 14.1 Article 39 and the last sentence of Section 1601 of the Lease shall not apply to the expansion and refurbishing of the existing building being undertaken pursuant to this Amendment. - 16 - • • 15. Miscellaneous 15.1 All terms and conditions of the Lease not inconsistent with this Amendment shall remain in full force and unchanged hereby, and this Amendment shall be subject to all terms and conditions of the Lease not inconsistent with the terms of this Amendment. 15.2 This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the parties have caused these presents to be executed as of the day and year first above written. KIMCO PMENT OF GIANTS, INC.: Milton Cooper, President ATTEST: • • • • Secretary orporate Seal] - 17 - GIANT FOOD STORES, INC.: By. Richard E. Welsh. Director of Real Estate ATTEST: 47041-7e84-7: • (Corporate Sealk The undersigned Mortgagee hereby consents' to the above Amendment to Lease Agreement. ATTEST: COMMONWEALTH NATIONAL BANK: By By Name: Name: Title: Title (Corporate Seal] DATE: 1989 - 17 - • LEGAL DESCRIPTION OP SHOPPING CENTER. EXHIBIT A f ALL that certain tract or land situate in the Township of Upper Allen, County of Cumberland, Commonwealth of Pennsylvania, bounded and described as follows: BEGINNING at an Iron Pin set in the easterly Dedicated Right of Way Line of Gettysburg Pike, said Pin being located a distance of 728.2 feet north of the centerline of South Market Street (L.R. 418); THENCE along the said Dedicated easterly line of Gettysburg Pike, North 30 degrees 14 minutes 26 seconds East, a distance of 436.00 feet to a PK Nails THENCE along lands of Joseph H. and Ruth P. Hess, South 59 degrees 40 minutes 30 seconds East, a distance of 806.11 feet to an Iron Pin in the present westerly Right of Way Line of U.S. Route 18 (L.R. 123); THENCE along said westerly Right of Way Line the following three (3) courses and distances: 1. South 23 degrees 29 minutes 33 seconds West, 60.73 feet; 2. South 33 degrees 04 minutes 08 seconds West, 362.45 feet, S. South 83 degrees 16 minutes 20 seconds West, 12.81 feet; to an Iron Pin at the lands of Elvin B. Hess and Charlotte Hess. his wife; THENCE along lands of Elvin B. and Charlotte Hess, North 69 degrees 48 minutes 38 seconds Nest, a distance of 889.36 feet to an Iron Pin in the easterly line of Gettysburg Pike, the point of BEGINNING. BEING a part of Lot No. for the Grantors herein by April 18, 1975, and recorded in and for Cumberland County, 59. 1 in a certain subdivision plat made Myers - Macomber Engineers, Inc., on in Office of the Recorder of Deeds Pennsylvania, in Plan Book 27, page BEING a part of the same premises which became vested in CUMBERLAND COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, by deed from JOSEPH H. HESS and RUTH P. HESS, his wife, dated April 28, 1976 and recorded April 30, 1976 in Deed Book 0 -28, page 80. • • * 4 • PLAN OF THE SHOPPING CENTER SHOWING (i) THE "ORIGINAL BUILDING AREA" 111.1), AND THE "ADDITIONAL BUILDING AREA" (11.2). EXHIBIT B •=2="A'"""'""•••• • • SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT PURSUANT TO SECTION 9.2.3. EXHIBIT C 11 I I M 7 EXHIBIT 'B' From: 717,207, 59. " P 2V 1 Date: 7/281200812: 59:51 PM , V4 4V VV +V• LL.fd THIS SUBLEASE, made and entered into as of this /4) day of September, 2003 (the "Effective Date "), by and between GIANT FOOD STORES, LLC, a Delaware limited liability company (the "Landlord "), LEON S. GE}IMAN AND ANNA H. GBHMAN, adult individuals (together, the "Tenant "), NOW, THEREFORE, the parties hereto, intending to be legally bound, do hereby agree and covenant as follows: 1. Master Lease, Upper Allen Associates, a limited partnership, as lessor, and Giant Food Stores, Inc. ("GFSI "), now Landlord, as lessee, entered into a Lease Agreement, dated August 29, 1975, as modified by an Amendment to Lease Agreement, dated May 11, 1989, between Kimco Development of Giants, Inc., as successor lessor ( "Master Landlord "), and GFS1, as lessee (collectively, the Master Lease ") for certain store space containing approximately 37,280 square feet (the "Demised Premises ") located in a shopping center (the "Shopping Center") situate at 121 Gettysburg Pike in Upper Allen Township, Cumberland County, Pennsylvania. Tenant has received a copy of and is familiar with the provisions of the Master Lease. 2. Joxporation of Master Lease. (a) This Sublease is subject and subordinate to the Master Lease. Except as may be inconsistent with the terms hereof, all the terms, covenants and conditions set forth in the Master Lease shall be applicable to this Sublease with the same force and effect as if Landlord were the lessor under the Master Lease and Tenant were the lessee thereunder and in case of any breach hereof or default hereunder by Tenant, in addition to all other remedies available at law and in equity, Landlord shall have all the rights that would be available to the lessor against the lessee under the Master Lease if such breach were by the lessee thereunder. (b) Tenant shall observe and perform those obligations imposed upon the lessee under the Master Lease to the extent that such obligations are not provided for in this Sublease to be observed or performed by the Landlord, Tenant shall neither do nor permit anything to be done which could cause the Master Lease to be terminated or forfeited by reason of any right of termination or forfeiture reserved or vested in the Master Landlord under the Master Lease, Tenant hereby indemnifies and holds Landlord harmless from and against all claims of any kind whatsoever resulting from any action, or •fkiiura to sot, on the part of Tenant by reason of which the Master Lease could be terminated or forfeited, or by reason of which any claim could be asserted against Landlord, including reasonable attorneys' fees and related costs and expenses. (A470611 :I This fax was received by GA FAXmaker fax server. For more information, visit http: //www.gfi.com y m 7172407595 ` pie :3/11 Date: 7/28/2008 12:59:51 PM V VL. VV VV ..J• VV (c) Upon receipt of irrevocable notice from Tenant exercising a Lease Renewal Option pursuant to Paragraph S of this Sublease, Landlord shall exercise its corresponding renewal option pursuant to the Master Lease. 3. amiss Landlord hereby subleases to Tenant the entire Demised Premises as defined in the Master Lease, including the nonexclusive right to use the parking, access and other common areas appurtenant thereto. 4. Term, The initial term (the "Initial Term ") of this Sublease than commence on the Effective Date (the "Commencement Date') and shall end on April 30, 2010, unless sooner terminated or subsequently extended in accordance herewith. 5. Lease Re _Optioons. Tenant shall have the right and option to renew and extend the term of this Sublease for four (4) additional and consecutive periods of five (5) years each (each, a ALease Renewal Optionz), subject to the following conditions: (a) Tenant shall have provided Landlord with written notice of its desire to extend the term no later than twelve (12) months prior to the expiration of the then current term; and (b) Tenant shall not be in default beyond any period for cure of any of the provisions of this Sublease or the Master Lease at the time it provides notice to extend the term or at any time subsequent thereto prior to the commencement of the extended term. 6. Possession. Possession of the Demised Promises shall be given to Tenant within seven (7) business days following the Effective Date (the "Turnover Date "). 7. motion of Dgmiseanzmise . (a) The Demised Premises shall be delivered to Tenant in broom clean condition. Landlord shall return the front entry door to proper working condition by the Turnover Date. Subject to the foregoing, the Demised Premises are sublet in an "as -is, where -is" condition, with all faults, and the Landlord makes no representations or warranties of any kind whatsoever, express or implied, concerning the Demised Premises, its suitability for Tenant's intended purposes, or any permissible uses thereof. (b) In addition to complying with the requirements of the Master Lease with respect to maintenance and repairs of the Demised Premises, Tenant shall maintain the interior of Demised Premises in good, operating condition at Tenant=s expense and shall look to Master Landlord for all repairs and replacements required to be made by Master Landlord under the Master Lease, including but not limited to, repairs and replacements to structural components of the Demised Premises such as the roof and roof membrane. fA4706II) - 2 - This fax was received by GFI FAXmaker fax server. For more information, visit http:/fwww.gfi.com 7172407595u ` Page:, 4111 8. Bat Date: 71281200612:59:51 PM -I V V I V, (a) Commencing on the date that is one hundred eighty (180) days after the Effective Date (the "Rent Commencement Date "), Tenant shall pay Landlord as minimum rent during each Lease Year of the term of this Sublease the following: LggaYsev___ZsmUsrjgDgg:Cfc&t,____A6nmpgRmt Rent Commencement Date through Lease Year 2 $2.00 $ 74,560.00 Lease Years 3 through April 30, 2010 $3.00 $ 111,840.00 First Option Period 7 • D ' f '5' $4.70 $ 175,216.00 Second Option Period `f '30 $6.35 Third Option Period te• 3°. $6.51 Fourth Option Period ki '312.3° $6.95 $ 236,728.00 $ 242,692.00 $ 259,096.00 (b) "Lease Year" shall mean the first fill twelve (12) calendar months commencing on the Rent Commencement Date, and each succeeding twelve (12) month period, except that: (i) If the Rent Commencement Date shall occur on a day other than the first day of a calendar month, the first Lease Year shall also include the first partial calendar month of the term, and (ii) Commencing with the First Option Period, if exercised, each Lease Year shall begin on May 1st and end on the following April 306. (c) All minimum rent payable under the terms of this Sublease shall be payable in advance, punctually and without demand, deduction or set -off, before the first (1°`) day of each month at such place as Landlord may from time to time designate in writing. (d) Tenant shall be responsible for remitting to Landlord any Percentage Rent due pursuant to the provisions of the Master Lease, including a statement of gross sales on an annual basis. Percentage Rent shall be paid in the amount of one percent (I%) of the gross sales in excess of the Volume Allowance amounts and for the time periods set forth below: IA4706114 - 3 - This fax was received by GFI FAXmaker fax server. For more information, visit http: / /www.gfi.com From 7172407595 ` Pale: 5/11 Date: 7/28/2008 12:59:52 PM Time Period yol i • e Allowanee Rent Commencement Date through April 30, 2017 May 1, 2017 through April 30, 2020 May 1, 2020 through April 30, 2025 May 1, 2025 through April 30, 2030 $17,530,000 $23,698,000 $24,287,000 $25,921,000 .+vv aw w •w.v4a , .14'4:1- .i =tr.._ _ _ IT.. !:L. :.f ' tS.I *1.1 .l �! t. ' 1:. If Tenant exercises one or more renewal o ono, then commencing on May 1, 2010, Tenant shall reimburse Landlord as additional rent for all real estate taxes, assessments and impositions, • substitute or other taxes and charges, insurance premiums, common area maintenance charges, and any other amounts (other than rent) that Landlord, as lessee of the Master Lease, is obligated to pay to the Master Landlord ("C'gps °); All Charges shall be apportioned between Landlord and Tenant as of May 1, 20101nd ending upon the expiration or sooner termination of the term of this Sublease. Tenant shall reimburse Landlord for Charges within ten (10) days following receipt of an invoice from Landlord. 10. ,$ervicee. Notwithstanding anything herein contained, the only services or tights to which Tenant is entitled hereunder are those to which Landlord is entitled under the Master Lease, and for all such services and rights Tenant will look solely to the Master Landlord under the Master Lease. Landlord shall not be liable to Tenant for the failure of the Master Landlord to perform any of the obligations imposed upon the Master Landlord by the Master Lease, or for any breach of any representation, warranty or other covenant contained in the Master Lease. Landlord shall, however, at no expense to Landlord, to the extent necessary or required, cooperate with Tenant in transmitting requests to and making demands of Master Landlord to secure such service or rights from Master Landlord. 1 t.e Q. The Demised Premises Anil be used for the retail sales of home audio electronics, furniture, floor -, window - and wall - coverings and accessories, kitchen and bath cabinetry, home appliances and water conditioning systems, interior design and decorating services, and for no other purpose without the prior written consent of both the Landlord and the Master Landlord, which consent may be withheld in Master Landlord=s or Landlords sole discretion. Without limiting the generality of the foregoing, in no event shall any of the following uses be conducted within the Demised Premises: (a) Any use prohibited by the Master Lease. (b) The operation of a supermarket, grocery store, convenience store, or sale of food products for prlmarily.of - premises consumption. (c) The sale of prescription drugs. (A470d11:) -4 This fax was received by GFI FAXmaker fax server, For more information, visit http: //www.gfi.com From: Y�IYrAVI om: 717214591 5 ai llr Pa .s i8/ 1 Date: 7/28/200812:59;52 A PM 1 VV (d) The operation of so- called adult or sexually explicit book stores; sales and services of motor vehicles; bars, taverns, night clubs and other establishments of like typo whose principal business is selling alcoholic beverages; bingo parlors; bowling alleys; churches; schools; or movie theatre. (e) Any use which conflicts with any existing use, exclusive use, or primary use of any other tenant in the Shopping Center. 12. Quiet Enioyl¢ rent. Tenant shall not interfere with the quiet enjoyment of other tenants in the Shopping Center. 13. may. Tenant shall provide security for the Demised Premises and the area around the Demised Premises to prevent loitering. 14, Assignment and Subletting. Tenant shall not assign or sublet all or any part of this Sublease or the Demised Premises, without the prior written consent of Landlord, which may be withheld in Landlords sole discretion. Tenant shall not sublet all or any part of the Demised Premises or allow any party to occupy all or any part of the Demised Premises except pursuant to a written sublease or license agreement approved by Landlord. Any assignment by operation of law, attachment or assignment for the benefit of creditors, shall, at Landlord's option, be inoperative. In the event of any assignment' or subletting hereunder, any further or subsequent assignment or subletting shall also require the prior written consent of Landlord and shall otherwise be subject to all of the provisions of this Paragraph. Notwithstanding any subletting or assigning, Tenant shall remain obligated to Landlord for the full and faithful performance atilt terms and conditions of this Sublease. An assignment within the meaning of this paragraph shall be deemed to include one or more sales or transfeers, by operation of law or otherwise, or creation of new stock, by which an aggregate of more than fifty percent (50%) of Tenant=s corporate stock shall be vested in a party or parties who are nonatockholders as of the date any such corporation becomes the Tenant under this Sublease, or any sales or transfers, by operation of law or otherwise, of partnership interests by which an aggregate of more than fifty (50 %) percent of Tenant:* partnership interest shall be vested in a party or parties who are not partners on the date any such partnership becomes the Tenant under this Sublease. 15. rig. Tenant shall maintain such types of insurance coverage in such limits regarding the Demised Premises as are required by the Master Lease and as Landlord shall reasonably require from time to time. Tenant shall name Master Landlord, Landlord, Tenant and any mortgagee required to be named by virtue of the Master Lease, on all policies of insurance obtained with respect to the Demised Premises, each as their interest may appear. Each of the policies shall contain an endorsement that it shall not be cancelled without at least thirty (30) days= prior written notice to Master Landlord, Landlord and any such mortgagee. In addition to Master Landlord, Landlord shall be entitled to certificates of all such insurance policies no later than thirty (30) days prior to the expiration date of the then- existing policies, together with satisfactory evidence that the premiums have been prepaid for the Hill term of the policy. In the event the Master Landlordbs insurance premiums for the Shopping Center are increased duo to (A470611:) This fax was received by GFI FAXmaker fax server. For more information, visit http: / /www.gfl.com « 7172407595 Page:r7 /11 Date: 7/28/200812:59:52 PM JVL .rV VV 1V•SAO Tenants use of the Demised Premises, Tenant shall be fully responsible for such increase and shall pay same upon demand to Master Landlord. 16. Alterations and.Signs. (a) Tenant shall, at its sole coat and expense, complete all nonstructural renovations and improvements to the interior of the Demised Premises and all nonstructural exterior improvements required as part of the interior renovations, all of which improvements are subject to Landlord's prior approval, which approval shall not be unreasonably withheld. In addition to the requirements of the Master Lease, Tenant shall not make any structural modifications or alterations to the Demised Premises without obtaining Master Landlord's and Landlord,* prior written consent, which consent may be withheld in Master Landlord's and/or Landlord's sole discretion. (b) Tenant shall have the tight to install, at Tenants expense, a standard sign on the front of the Demised Premises, provided such signage is approved by Landlord, such approval not to be unreasonably withheld, and fiuther provided that such signage is designed and installed in accordance with the provisions of the Master Lease and all applicable laws. 17. Notices. Any notice or demand that either party may or must give to the other hereunder shall be in writing and delivered personally or sent by overnight courier requiring a receipt upon delivery, or by registered or certified mail, return receipt requested, as follows: If to Landlord: Giant Food Stores, LLC 1149 Harrisburg Pike Carlisle, PA 17013 -0249 Attention: Real Estate Department If to Tenant: Leon S. Gellman Anna H. Gellman Holly Tree Farm, Inc. 1648 Nolt Road Mount Joy, PA 17552 Either party may, by notice, direct that future notices and demands be sent to a different addr s. 18. rent Domain. Landlord reserves the right to make any elections to terminate the Master Lease on account of eminent domain proceedings, and to receive eminent domain proceeds, as set forth in the Master Lease. Tenant assigns to Landlord all of its tights to receive any portion of any eminent domain award, except for any portion thereof specifically allocated to Tenant's loss of trade fixtures and relocation expenses. 19. Termsination tuitions. Landlord reserves the right to decide whether to exercise any options to terminate the Master Lease which may become available to the lessee under the -6 This fax was received by GFI FAXmaker fax server. For more information, visit http: //www.gfi.com 1 y 1 `� From 7172407595 1V Page: 8/11 Date: 7/281200612:59:53 , PM VV I VV JV1.. VV VV lud.VJ Master Lease in the event of property damage and/or condemnation. Upon such termination of the Master Lease, this Sublease shall concurrently terminate. 20. Slicremiglat nemfged/rggike. Tenant shall surrender the Demised Premises at the expiration or earlier termination of the term, or any renewal term of this Sublease, in the condition required to be delivered at the expiration of the Master Lease. 21. Broker's Commission. Each party represents and warrants to the other that no brokerage commissions or similar fees are due in connection with this Sublease, other than a brokerage commission owed to Stonerook & Co. which shall be paid by Landlord. 22. R.elationshin. Nothing contained herein shall be deemed or construed by the parties hereto, or by any third party, as creating the relationship of principal and agent or of partnership or joint venture, or of any relationship other than that of sublandlord and subtenant. 23. EatireAgtogneat. All prior oral and written agreements between the parties are merged within this Sublease, which alone fully and completely sets foal the uuelorotanding of the parties, and any and all representations by either of the parties or their agents or representatives made prior to or concurrent with execution of this Sublease which are not specifically contained herein shall not be binding upon either of the parties hereto. 24. Wit. This Sublease may not be changed orally or in any manner other than by an agreement in writing and signed by the party against whom enforcement of the change is sought. 25. ,Successors and Assigns. The covenants and agreements herein contained shall bind and inure to the benefit of Landlord, Tenant, and to the extent permitted hereunder their respective successors and assigns. 26. Landlord's jgghtauntl. Tenant shall permit Landlord and the authorized representatives of Landlord to enter the Demised Premises at all reasonable times after reasonable notice for any proper purpose. tA47061 l :} (Balance of page intentionally left blank.) .7- This fax was received by GFI FAXmaker fax server. For more information, visit: http: //www.gfi,com From; 7172407595 Pale: 9/11 I J.141VIV�V Vllp11 1\L11L L 11111r Date: 712812008 12:59:53 PM JVL LV VV i.J•V1 IN WITNESS WHEREOF, the parties have caused this Sublease to be duly executed as of the day and year first above written with intent to be legally bound hereby. WITNESS: 1A470611:) LANDLORD: GIANT FOOD STORES, LLC By: !.._ Name: / Title: Ge / . Adams Vise President, Real TENANT: By: •-+a.r Name. By:By: ,., i •_SAL_ .t_.,.� Name: Anna H. a an - 8 - This fax was received by GFI FAXmaker fax server. For more information, visit: http: /lwww.gf.com EXHIBIT 'C EXH BIT C r s • AGREEMENT OF SALIZ THIS AGREEMENT made this day of Oh 2005; between KIMCO GIANTS TRUST, a Delaware corporation, with an office at 33 3 New Hyde Park Road, Suite 100 (P. O. Box 5020), New Hyde Park, New York 11042 (hereinafter, "Seller"), and James A. Nardo with an office at P.O. Box 442, Hershey, PA 17033, who is (hereinafter, "Buyer"). WHEREAS, Seller owns a shopping center located in Upper Allen Township, Cumberland County, Pennsylvania (the "Shopping Center") and Seller wishes to sell and Buyer wishes to buy the Shopping Center; NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: 1. DEFINITIONS, The following expressions shall have the meanings set forth below: 1.1 "Real Estate" means the land described on Exhibit 1 and all of the buildings and other improvements constructed thereon. 1.2 "Space Lease(s)" means all lease(s), license(s), concessions or other occupancy or use agreements, including all modifications, addenda and supplements thereto and guarantees thereof, applicable to any part of the Real Estate. All existing Space Leases as of the date hereof are listed on attached Exhibit Z. 1.3 "Property" means collectively all of Seller's rights and interests in the Real Estate, the Space Leases and the other assets described in Article Z hereof. 1.4 "Closing Date" means the date on which Closing event whereby title to the Property is actually conveyed by Seller to Buyer. 1.5 "Service Contracts" means all written agreements pursuant to which goods, services or supplies are furnished on a recurring basis for the operation of the Real Estate. Copies of such Service Contracts are attached as Exhibit 3. 1.6 "Escrow Agent" means Wolf Block, Schorr & Solis- Cohen, 1650 Arch Street, Philadelphia, Pennsylvania 19103, Attention: Alvin H. Dorsky, Esq. 1.7 "Due Diligence Period" means a period of time commencing on the date first wri tten above and expirin at midnight, New York time, on the (301) business day thereafter or the first business day after such 30 day if such 301 day is not a business day. attached hereto. 1.8 "Permitted Exceptions" means those certain title exceptions set forth in Exhibit 6 1.9 "Personal Property" means all personal property and equipment (if any) owned by Seller and located on the Real Estate. 1.10 "First Deposit" steams a deposit, to be paid by Buyer to Escrow Agent upon the execution hereof; in the amount of $50,000.00, plus all interest earned thereon. "Second Deposit" means a deposit, to be paid by Buyer to Escrow Agent pursuant to Section 3A(ii), in the amount of $50,000.00, plus all interest earned thereon. 'Deposit" means the First Deposit and the Second Deposit, collectively. 1.11 "Title Company" shall mean Stewart Title Insurance Company, 900 West Valley Road, Suite 1302, Wayne, Pennsylvania 19087, Attention: Frances Hack. 2. SALE AND PURCHASE. In accordance with the provisions of this Agreement, Seller agrees to sell, convey, assign and transfer to Buyer, and Buyer agrees to purchase and acquire from Seller, subject to the Permitted Exceptions and Space Leases, all of Seller's right, title and interest in and to: (a) the Real Estate, (b) the Space Leases, (c) any Personal Property, (d) any land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Real Estate, (e) any strips or gores adjoining the Real Estate, and (f) all appurtenances and hereditaments appertaining to the Real Estate. 3. PURCHASE PRICE, The "Purchase Price" for the Property shall be Four Million One Hundred Thousand and 00/100 ($4,100,000.00) Dollars and shall be paid as follows: 3:1:1,4 2,nr.Wk'avAFw44-Ml nt:lyre+rairA7hlamNdPW narS'. iik.14stasi arm Yob,.: jksw 17 M7.emur .IN.lur phis A. (i) Upon the execution of this Agreement Buyer shall pay the First Deposit to Escrow Agent by bank check to the order of Escrow Agent or wire transfer of federal funds for immediate credit (ii) If Buyer does not terminate this Agreement prior to the expiration of the Duo Diligence Period then Buyer shall pay the Second Deposit to Escrow Agent by wire transfer of federal funds for immediate credit, such payment to be made by Buyer on the next business day after the expiration of the Due Diligence Period. (iii) The Deposit shall be invested by Escrow Agent in a sound financial institution's money market fund or account which pays interest or dividends, in Escrow Agent's name separate from its personal and business accounts. If no Closing occurs, all interest or dividends earned shall be paid to the party entitled to the escrowed proceeds, which party shall pay all income taxes thereon. The parties shall furnish Escrow Agent with their respective tax identification numbers. At Closing, Escrow Agent shall pay the Deposit (to Seller; and the principal portion of the Deposit shall be a credit against the Purchase Price. All escrow fees, if any, charged by Escrow Agent shall be equally shared by Seller and Buyer. Escrow Agent shall hold the Deposit as set forth above unless either Seller or Buyer makes a written demand upon Escrow Agent for the Deposit accompanied by an affidavit signed by the party making the demand stating sufficient facts to show that said party is entitled to receive the Deposit pursuant to the terms of this Agreement. Upon receipt of such demand, Escrow Agent shall give ten (10) days written notice to the other party of such demand and of Escrow Agent's intention to remit the Deposit to the party making the demand on the stated date, together with a copy of the affidavit If Escrow Agent does not receive a written objection before the proposed date for remitting the Deposit, Escrow Agent is hereby authorized to so remit If, however, Escrow Agent actually receives written objection from the other party before the proposed date on which the Deposit is to be remitted, Escrow Agent shall continue to hold the Deposit until otherwise directed by joint written instructions from Seller and Buyer or until a final judgment of an appropriate court In the event of a dispute, Escrow Agent may place the Deposit with an appropriate court and, after giving written notice of such action to the parties, Escrow Agent shall have no further obligations with respect to the Deposit The parties acknowledge that Escrow Agent is acting as a stakeholder at their request and for their convenience, that Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part unless taken or suffered in bad faith or in willful or negligent disregard of this Agreement. Seller and Buyer shall jointly and severally indemnify and hold Escrow Agent harmless from and against all costa, claims and expenses, including reasonable attorney' fees, incurred in connection with the faithful performance of Escrow Agent's duties hereunder. Escrow Agent acknowledges agreement to the provisions of this Agreement applicable to it by signing on the signature page of this Agreement B. At Closing, and subject to the terms and provisions of this Agreement, Buyer shall pay Seller the balance of the Purchase Price by wire transfer of immediately available federal funds. Seller shall finish Buyer with wire transfer instructions prior to Closing, C. In the event Buyer fails to pay any amount when due or if paid by check, any check fails to be collected in the ordinary course of business, Seller shall have the right by written notice to Buyer to terminate this Agreement for default by Buyer, in which case Buyer shall have no further tights hereunder, and Seller shall be entitled to retain all suns previously paid by Buyer as liquidated damages. D. In connecti on with any Personal Property included in the sale, the parties agree that no part of the Purchase Price shall be deemed to have been paid by Buyer on account thereof. 4. CONDITIONS PRIOR TO CLOSING: DUE DILIGENCE PERIOD; 4.1 Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer's behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of thing affecting or relating to the Shopping Center except as herein specifically set forth. Buyer hereby expressly acknowledges that no such representations have been made and Buyer frther agrees to take the Shopping Center "as is" as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers' "set- 2 vWhNy ngllF7�duee ratdtY1d .;.W.wA,r.,,..,d,4,.a., pN, ups ", or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth herein. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement 4.2 On and after the date hereof, Buyer shall have access to the Property for the purpose of making engineering, survey or non - intrusive inspections and independent investigations; and Seller will on receipt of reasonable prior written notice, provide Buyer with access to information within its possession or control with respect to the Property, including (without limitation) full and accurate copies of Space Leases, Service Contracts, title information or instruments, and books and operating records of the Shopping Center. Notwithstanding the foregoing, Buyer shall have no right to, and hereby covenants and agrees that it will not, meet with any Space Lease tenants on the Real Estate unless a representative of Seller is present at such meeting. In the event that Buyer elects to meet with any Space Lease tenants on the Real Estate, Buyer shall provide Seller with five (5) days prior written notice. If Seller does not respond within the notice period, Buyer shall be permitted to meet with any Space Lease tenants identified in the notice without the Seller's representative being present. Buyer agrees to defend, indemnify and hold Seller harmless from any personal injury or property damage or other damage, loss or liability caused by Buyer in doing any testing, inspections or survey, or in the event of a violation by Buyer of its covenants under the preceding sentence; and such obligation shall survive the Closing or sooner termination of this Agreement. Buyer shall give Seller true, accurate and complete copies of all written reports resulting from Buyer's inspections and investigations. 4.3 (a) Buyer shall have the Due Diligence Period within which to inspect and examine the Real Estate, the Space Leases and the Service Contracts. (b) In the event that during the Due Diligence Period, Buyer, in its sole judgment, is not satisfied with the condition of the Real Estate, the Property, the Space Leases or the Service Contracts then, prior to the end of the Due Diligence Period, Buyer shall have the right by giving written notice to Seller and Escrow Agent to cancel and terminate this Agreement without liability except as set forth in Sections 4.2 and 15.8. Upon receipt of such notice prior to the end of the Due Diligence Period, Escrow Agent shall deliver the Deposit to Buyer. In the event Buyer fails to give such notice prior to the end of the Due Diligence Period, Buyer's right to cancel this Agreement pursuant to this Section 4 shall lapse. 4.4 Seller is the beneficial owner of the Property but record title is held by Cumberland County Industrial Development Authority (" CCIDA"). Seller conveyed by Warranty Deed the property to the CCIDA and leased back same. At Closing, Seller will cause CCIDA to transfer title directly to the Buyer. Seller is the successor by merges to Kimco Development of Giants, Inc. 5. ADJUSTMENTS AND PROBATIONS. 5.1 Seller shall be entitled to all income produced from the operation of the Property which is allocable to the period prior to the Closing Date and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible for all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, all items of income and expense with respect to the Property shall be prorated in accordance with the foregoing principles and the rules for the specific items set forth hereafter: 5.1.1 Seller shall arrange for a billing under all those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the Closing Date, and Seller shall pay the resultant bills. In the event any of the Service Contracts set forth in Exhibit 3 cover periods beyond the Closing Date the same shall be prorated on a per diem basis. 5.1.2 Real estate taxes, general, special and/or betterment assessments and personal property taxes shall be prorated for those taxes which are due and payable as of the Closing Date. In the event that as of the Closing Date the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re- prorated between the parties to reflect the actual amount of such taxes. 3 5.1.3 Rentals and other payments (other than "percentage rent" and common area maintenance charges which are dealt with in Section 5.1.4 and Section 5.1.6) which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). Notwithstanding the foregoing, as to the following tenants ( "the Credit Tenants'): Giant Food and CVS, Seller shall, at Closing, receive a credit in the amount equal to all rentals and other payments (excepting only base or fixed rentals but expressly including any real estate taxes, CAM and/or insurance reimbursements) that have accrued as of the Closing Data but are either unpaid or not yet due and payable from'the Credit Tenants as of the Closing Date. Except as provided in the preceding sentence in respect of the Credit Tenants, Buyer shall not be obligated to make any payment or give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the Closing Date, but shall be required to turn over Seller's share of the same within ten (10) days if as and when received by Buyer after the Closing; this provision shall survive Closing. 5.1.4 Percentage rent; if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which Closing occurs on a per diem basis as and when collected. My percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Closing Date, or (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer, and if any tenant's Space Lease provides for offsets or deductions against percentage rent, then such offsets or deductions shall be prorated in the same manner as the percentage rent itself is prorated. This provision shall survive Closing. 5.1.5 Gas, water, electricity, heat, fuel, sewer and other utilities charges to which Section 5.1.1 cannot be applied, and the governmental licenses, permits and inspection fees and operating expenses relating to the Shopping Center, shall be prorated on a per diem basis. 5.1.6 Common area maintenance expenses and charges shall be prorated. Seller shall be responsible for all common area expenses and charges incurred prior to the Closing Date, and Buyer shall be responsible for the same on and subsequent to the Closing Date. All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, including end-of- -year adjustments, if any, shall be prorated between Seller and Buyer in the following manner: Not later than three (3) days prior to Closing, Seller shall deliver to Buyer, with regard to each Shopping Center tenant required to pay common area charges ( "CAM Charges") under its lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from the beginning of each such tenant's then current billing period for CAM Charges (e.g., calendar year, lease year, etc.) through the Closing Date, any CAM estimated payments or charges collected by Seller relating to such tenant (hereinafter "CAM Estimates'), and a bill for the tenant's pro rata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM Estimates held by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant's lease. Buyer shall send any such bills to tenants promptly following Closing, in which event such tenant shall pay any amount shown due directly to Seller, and except as otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to collect same. However, if any tenant rightMly refuses to pay such bill for CAM Charges due through the Closing Date, then Buyer shall resubmit such bill to any such tenant at the same time as Buyer next submits Buyer's own bill to any such tenant; and any payment thereafter made by any such tenant on account of CAM Charges shall belong to and be forwarded within ten (10) days of its receipt to Seller until Seller's bill is paid in full The foregoing is subject to the provisions of Section 5.1.3 with regard to the Credit Tenants. Any CAM Estimates for any tenant shall be retained by Seller up to the amount of the pre - Closing CAM Charges payable by such tenant as evidenced by such bills and computations delivered by Seller at Closing, and Buyer shall receive a credit for any excess CAM Estimates collected by Seller. 5.1.7 All prepaid rentals, other prepaid payments(other than monthly real estate tax or CAM estimates or installments), security deposits, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seiler is entitled to retain the benefit thereof) under any Space Leases, license . agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto. At Seller's option, Buyer shall receive a cash credit in the amount of all Security Deposits to be delivered to Buyer at Closing, and Seiler may retain same. 4 N21S I „.12019006 W6JAM 5.1.8 Buyer shall not be responsible for any charges, salaries, vacation pay or fringe benefits of employees of Seller prior to or following the Closing and none of the foregoing shall be prom 5.2 All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments or computation shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it mikes written demand on the one from who it is entitled to such adjustment within three hundred sixty-five ( 365) days after the erroneous payment or computation was made; this provision shall survive Closing. 5.3 All accounts receivable flowing from the Property shall be treated as follows: 5.3.1 Buyer and Seller agree to treat all base or minimum rental payments received from a tenant as applicable to base or minimum rent which was owed by that tenant, if any, first for the month prior to the month in which Closing occurs and next for the month in which Closing occurs until the base or minimum rental amount due to Seller for such periods have been collected. In the event that there remains any unpaid base or minimum rent for a period prior to such periods, all payments of base or minimum rent received from such tenant shall be applied to sums owed Buyer before any part thereof shall be treated as belonging to Seller. 5.3.2 In the event that any tenant of Seller or Buyer shall hereafter apply or shall have heretofore applied for relief under the provisions of any banlatptcy or similar laws for the protection of debtors, the provisions of Section 5.3.1 shall not apply, and the parties shall have the right to seek collection of their respective accounts, their entitlements being detemdned by the Closing and the other provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, without the other party's prior written consent. 5.3.3 If at the Closing Date any tenants owe Seller any money, Seller shall have the right, subsequent to the Closing, to collect such sums directly from the tenants including bringing lawsuits against the tenants (at Seller's sole expense) for such collection; provided, however, Seller agrees that any such legal action or collection shall not include any disturbance of the possession, use or occupancy of the tenants or any right to evict the tenants, whether pursuant to the lease provisions or otherwise, and Buyer shall at Seller's expense join in any lawsuit and/or also participate or cooperate with Seller in its collection attempts. Buyer will (at Seller's expense) join in such a lawsuit or action only if the same does not include or require disturbance of the possession of any tenants. 5.4 The provisions of this Article 5 will survive Closing. 6. TT1'LE AND SURVEY. 6.1 Seller shall convey and Buyer shall accept a title such as any reputable title insurance company licensed to do business in the State wherein the Shopping Center is located will be willing to approve and insure subject only to Permitted Exceptions as provided for in this Agreement Buyer acknowledges that it has heretofore received copies of Seller's existing title insurance policy for the Real Estate (the "Existing Title Policy") and of Seller's existing survey of the Real Estate (tie "Existing Survey"). Promptly following the execution of this Agreement, Buyer may (if it so elects) obtain (at Buyer's sole expense) updates of the Existing Survey; if Buyer does obtain such an updated survey, Buyer shall cause it to be certified to Seller and Buyer shall promptly furnish Seller with a copy thereof. Promptly following the execution of this Agreement, Buyer shall also (at Buyer's sole expense) obtain a commitment for ALTA Form B Fee Title Insurance (the `Title Commitment"); and Buyer shall promptly t rnish Seller with true accurate and complex copies thereof (including true, accurate and complete copies of all underlying title exception documents referenced therein). Not later than five (5) days prior to the expiration of the Due Diligence Period, Buyer shall give Seller written notice ( "Buyer's Title Notice") of any title exceptions which are contained in the Title Commitment and which are not Permitted Exceptions. Failure by Buyer to give Buyer's Title Notice (or to object to any matter referenced in the Title Commitment) to Seller on or before said date shall constitute Buyer's foal and irrevocable approval of the condition of title (and to any such tmobjected to matter) in and to the Real Estate. If Buyer's Title Notice shall be timely given Seller shall have a period of sixty (60) days following Seller's receipt of Buyer's Title Notice, to remove, correct, cure or satisfy any title exceptions that were identified in Buyer's Title Notice as not being Permitted Exceptions, it being nevertheless agreed that Seller shall have no obligation to undertake any action or to incur any expense in order to effectuate any such removal, correction, cure or satisfaction (except that notwithstanding the foregoing Seller shall be required to remove or discharge any fee mortgages or deeds of trust, as well as any other liens in an ascertainable dollar amount created by Seller); and it also being agreed that any attempt by 5 t79uund.naosaas.w f; .1.1.Armmr.. Munn OIp!ose ,,ili i,tc phi Sella to cure shall not be construed as an admission by Seller that such objection is one that would give Buyer the right to cancel this Agreement. In the event that Sella elects not to attempt to remove, correct, cure or satisfy the matters raised in Buyer's Title Notice, or if having elected to do so, does not within said sixty (60) day period effectuate any such removal, correction, cure or satisfaction as aforesaid (hereinafter called "title correction"), Buyer shall have the right at its sole option either (a) to terminate this Agreement, in which event the Deposit shall be returned to Buyer and neither party shall thereafter have any further liability hereunder, except as set forth in Sections 4.2 and 15.8, or (b) to accept such title as is disclosed by the Title Commitment without title correction and without any reduction to the Purchase Price, thereby waiving any rights against Seller with respect thereto. Said election shall be made by Buyer within three (3) days following Buyer's receipt of written notification by Seller that Seller has not effectuated (or has elected not to effectuate) title correction. In the event that Sella (even though under no duty to do so) shall undertake title correction as aforesaid, and shall be successful, this Agreement shall continue in frill force and effect and Buyer shall close the transaction contemplated hereby in accordance with the terms hereof. In the event that Seller shall only be partially successful in obtaining title correction, Buyer shall have the same alternative rights as Buyer would have in the event Seller had declined to seek title correction (as set forth above). Buyer shall make its election within three (3) days after Buyer's receipt of written notice from Seller to Buyer of the extent to which title has been corrected. 6.2 If at the Closing Date there may be any lien or encumbrances which render title unmarketable and are not permitted title exceptions hereunder, and which Seller is obligated or desires to pay and discharge, Seller may use any portion of the balance of the Purchase Price to satisfy the same, provided Seller shall simultaneously either deliver to Buyer at the Closing instruments in recordable form and sufficient to satisfy such lien and encumbrances of record together with the cost of recording or filing said instruments; or provided that Seller has made arrangements with the title company in advance of Closing, Seller will deposit with said company sufficient monies, acceptable to and required by it to insure obtaining and the recording of such satisfactions and the issuance of title insurance to Buyer either free of any such liens and encumbrances, or with insurance against enforcement of same out of the insured premises. Buyer, if request is made within a reasonable time prior to the Closing, agrees to provide at the Closing separate certified checks as requested, aggregating the amount of the balance of the Purchase Price, to facilitate the satisfaction of any such lien and encumbrances. The existence of any such liens and encumbrances shall not be deemed objections to title, if Seller shall comply with the foregoing requirements. Unpaid liens for taxes, water charges, sewer rents and assessments which are the obligation of Sella to satisfy and discharge shall not be objections to title, but the amount thereof, plus interest and penalties thereon, shall be deducted from the Purchase Price to be paid hereunder and allowed to Buyer, subject to the provisions for apportionment of taxes, water charges and sewer rents contained herein. Unpaid franchise tax of any corporation in the chain of title, or estate, income or other taxes which may be liens against the Property as of the Closing Date shall not be an objection to title, provided the title company agrees to insure against the collection of said taxes from the Property and in such event if required by the title company, Sella agrees to deposit at Closing with the title company an amount deemed reasonable by it to secure the payment of such unpaid franchise tax, or other tax. 63 In the event that Seller is unable to convey title in accordance with the terms of this Agreement, or if any representation of Sella herein is untrue in a material respect on the Closing Date and Seller does not correct same (it being understood Sella will be entitled to a reasonable adjournment of Closing for such purpose, not to exceed 60 days), the sole responsibility of Sella will be to refund (or cause to be refunded by the Escrow Agent) to Buyer any amount paid on account of the Purchase Price; upon the making of such refimd, this Agreement shall be deemed canceled, neither party shall have any further claim against the other by reason of this Agreement, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8. 6.4 All costs of obtaining the Title Commitment, the policy of title insurance and survey shalt be borne by Buyer 7. DAMAGE, DESTRUCTION OR REOUIREDALTERATIO11j. 7.1 Prior to Closing, in the event of any damage to or destruction of all or part of the Real Estate (notice of which shall be given to Buyer by Seller as soon as practicable following its occurrence), then Sella shall have the right (but not the obligation) to adjourn the Closing Date for up to sixty (60) days in order to repair or replace such damage or destruction, except that if the cost of such repair or replacement exceeds ten percent of the Purchase Price, then in any such case (1) Buyer shall have the right to terminate this Agreement by giving Sella written notice of its intention to do so, such notice by Buyer to Sella to be given not later than three (3) days after Buyer shall have received the notice from Sella of such aforesaid occurrence, (in which event the Deposit shall forthwith be returned to Buyer, whereupon this Agreement shall be null and void and of no further force or effect whatsoever, 6 EI•L.,(44444414;.01 c.mktinglianamillcannotargnugatwitteldkausesstakrairamtatdocmgroserimomm.•ami.ki.• gal except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8); or (ii) if Buyer elects not to (or does not have the right to) terminate this Agreement, this Agreement shall continue in full force and effect except that at Closing Buyer shall receive an abatement of the Purchase Price in an amount equal to Seller's reasonable good faith estimate of the amount required to repair and restore all =repaired damage (and Seller shall retain all rights to collect insurance proceeds for such loss). 7.2 (a) In the event that any governmental authority having jurisdiction of all or part of the Real Estate has notified Seller before the Closing that some alteration of or addition to the Real Estate is required to be made by law, rule or regulation (notice of which shall be given to Buyer by Seller as soon as practicable after its receipt) or otherwise requires a cure of a violation, then (subject to the provisions of Section 7.2(b)) Seller shall have the right (but not the obligation) to undertake such alteration or addition or cure; provided, however, that if the cost of such alteration or addition or cure shall exceed the sum of one (1 %) percent of the Purchase Price, then in such event Seller may either elect to pay the entire cost and cure the same before the Closing or may decline to undertake the same, in which event Buyer shall have the option, exercisable within three (3) days following notice from Seller of the requirement and Seller's refusal to comply therewith, (1) to terminate this Agreement by giving Seller notice thereof (in which event the Deposit shall forthwith be returned to Buyer, whereupon the Agreement shall be null and void and of no further force or effect whatsoever, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8); or (ii) if such notice of termination is not timely given, to proceed with the Closing, in which event the Purchase Price shall be reduced by Seller's reasonable good faith estimate of the cost to cure, up to the maximum sum of one percent of the Purchase Price. (b) Notwithstanding the foregoing provisions of Section 7.2(a), Seller shall have no obligation to cure or pay for, and Buyer shall take subject to, any violation which either (i) is fast placed (i.e., notice first given to Seller or first placed of record) after the date of this Agreement, or (ii) is the responsibility of a Shopping Center tenant to cure or discharge pursuant to its Space Lease. 8. EMINENT DOMAIN. In the event that any eminent domain proceedings shall be commenced prior to the Closing affecting (i) more than ten percent (10 %) of the parking area(s) within the Real Estate; or (ii) which is of such a nature as would permit any tenant occupying leased premises larger than 5,000 square feet in area to cancel its Space Lease, Buyer shall have the right to terminate this Agreement, by written notice given to Seller within ten (10) days after Buyer receives notice of such eminent domain proceeding, (in which case the Deposit shall forthwith be returned to Buyer, whereupon the Agreement shall be null and void and of no further force or effect whatsoever, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8). In any case wherein Buyer has the right to terminate this Agreement pursuant to this Section 8 and Buyer elects not to terminate, or in any case wherein Buyer does not have the right to terminate, Buyer and Seller shall consummate Closing on the Closing Date, without any reduction to or abatement of the Purchase Price, and all theretofore unpaid condenmation awards shall belong to Buyer. 9. NO ASSIGNMENT. Buyer shall not have the right to assign this Agreement or its rights under this Agreement without obtaining in each instance Seller's prior written consent. Notwithstanding the foregoing, Buyer shall have the right, without Seller's consent, to assign its entire right, title and interest in and to this Agreement, expressly including the Deposit, to any entity controlling, controlled by, or under common control with Buyer (an "Affiliate"); provided that, not less than three (3) business days prior to Closing, Seller receives an executed assignment and asswmrption agreement, in form reasonably acceptable to Seller, which expressly assigns the Deposit and in which such assignee expressly assumes performance of this Agreement for the benefit of Seller. No such assignment or designation shall relieve or release Buyer from any obligations under this Agreement (whether arising pre- or post-closing), and Buyer shall remain jointly and severally liable for all of same together with such assignee. 10. As of the date hereof: and to the best of Seller's knowledge, Seller covenants and represents to Buyer the following: 10.1 Seller has obtained any consents from partners and/or shareholders required to transactions contemplated by this Agreement including the sale of the Property to Buyer. 10.2 There is no pending litigation affecting the Property brought by or against Seller that would materially adversely affect Buyer except as set forth in Exhibit 7 attached hereto and made a part hereof, If Seller is served with process or receives notice that litigation relating to the Property has been commenced against it, Seller shall promptly notify Buyer. The provisions of this Section shall not apply to any litigation relating to the property involving personal injury or property age. yvig rhimpaamowAri ordctl gib 7 10.3 The Space Leases described in Exhibit 2 comprise all the Space Leases presently existing, and same have not been materially amended or modified except (if at all) as may be set forth in Exhibit 2. Sella has neither given nor received any outstanding, uncured notice of default to or from any Space Lease tenant. Following a date which is 2 business days prior to the expiration of the Due Diligence Period (the "Cut Off Date "), and prior to Closing, Sella will not, without the prior written consent of Buyer(which Buyer agrees not to reasonably withhold or delay), cancel (except for default by a tenant) or materially amend any Space Lease, or enter into any new Space Lease or any Service Contract affecting the Property not cancelable on 30 days notice. On or prior to the Cut Off Date, Sella may take any of the foregoing actions without Buyer's consent, provided it delivers a copy of any new documentation evidencing same to Buyer not later than one (1) business day prior to the expiration of the Due Diligence Period. 10.4 Except as otherwise expressly provided herein, there will be at Closing no • contracts or agreements affecting the Property other than the Service Contracts, Space Leases and Permitted Exceptions; and there are no on -site employees or hired persons in connection with the management, operation or maintenance of the Property; and Buyer shall have no obligation, liability or responsibility with respect to charges, salaries, vacation pay, fringe benefits or like items subsequent to Closing, nor with any management or employment agreements with respect to the Property. 10.5 The signatories to this Agreement on behalf of Sella have the power and authority to enter into this Agreement and to bind Sella to the provisions hereof. If prior to Closing Buyer becomes aware of a material breach of any of the foregoing, Buyer's sole rights shall be to terminate this Agreement as set forth in Section 6.3 or to waive such breach and dose without any reduction in the Purchase Price by reason thereof~ in which event Sella shall have no post- Closing liability for such breach. References to "the best of Seller's knowledge," "Sellers knowledge," "to the best of Seller's actual knowledge" and such other similar phrases shall refer only to the current actual knowledge of the Designated Representatives (as hereinafter defined) of Seller, and shall not be construed, by imputation or otherwise, to refer to the knowledge of Sella or any affiliate of Sella, to any property manager, to any other partner, officer, agent, manager, representative or employee of Seller or any affiliate thereof. As used herein, the tam "Designated Representatives" shall refer to Tom Ramsey and Gregory Ix. 11. THE CLOSING. 11.1 The Closing shall be accomplished by the parties depositing the closing documents in escrow at the office of the Title Company (at the address set forth above) on the Closing Date. The Closing Date shall be thirty (30) days after the expiration of the Due Diligence Period. 11.2 At Closing, Buyer shall pay the Purchase Price as adjusted in accordance with the provisions of this Agreement and Buyer shall execute and deliver such other instruments as Seller may reasonably desire in connection with or to consummate the transactions contemplated by this Agreement 11.3 (A) At Closing, Sella shall deliver to Buyer or Title Company the following: (a) A special warranty deed for the Real Estate in proper recordable form, duly executed and acknowledged by CCIDA, and/or Seller for applicable parcels, which make up the property. (b) A F.LR.P.T.A. affidavit. (c) An estoppel certificate from each tenant under a Space Lease who occupies more than 10,000 square feet, dated not more than 45 days prior to the expiration of Due Diligence, in either the form required by its Space Lease, or other form which confirms in all material respects the representations of Seller regarding same in Section 103. If Seller is unable to obtain any such required estoppel from a tenant prior to Closing, Seller may (but shall not be required to), provided Buyer shall not be required to accept Seller's estoppel, deliver its own estoppel certificate to the sane: effect, which shall survive Closing (but if past - Closing Sella delivers any such tenant estoppel, Sella shall be relieved from responsibility under any Sella estoppel it delivered regarding all matters confirmed by such tenant estoppel). If Sella fails to deliver any such required estoppel, and does not deliver its own estoppel in lieu thereof, Seller shall have no liability by reason thereof, and Buyer's sole 8 3 allIPkW0.Y 4O47.%M c.'141,1ansWEcorsimenn Fichvucakt.un! arr r++xak:3. a vn� I right for Seller's failure to deliver the required estoppels shall be to obtain a refund of the Deposit as set forth in Section 14.3. (d) Indemnity to Title Company such that they can remove Bulk Sale Exception from Buyer's Title Policy. (B) At Closing, Seller and Buyer shall each execute and deliver to the other the following: (a) An Assignment and Assumption Agreement for the Space Leases in the form of Exhibit 4 attached hereto. (b) An Assignment and Assumption Agreement for the Service Contrasts; in the form of Exhibit 5 attached hereto. (c) Notices to tenants, in form reasonably acceptable to Seller and Buyer, notifying them of the sale and (if applicable) the transfer of their security deposit to Buyer. 11.4 Each party shall pay its own legal fees and travel and lodging expenses in connection with this transaction. Buyer and Sella shall each pay 'A of the total transfer taxes, documentary stamps or recording charges for transfer of title to the Real Estate. 11.5 The parties hereto agree to cooperate with each other to permit the conveyance of the Property to be consummated as a part of a transaction intended to qualify as a tax -free exchange under Section 1031 of the Internal Revenue Code and in conjunction therewith to execute such documents as the requesting party may reasonably request (such cooperation may include, without limitation; accepting a conveyance from a party other than the requesting party and paying the Purchase Price to a party other than Seller). In no event, however, shall (a) the non - requesting party bear any expense associated with the exchange transaction, (b) non - requesting party be obligated to take title to the requesting party's exchange property, (c) the consummation of such tax -free exchange materially delay the conveyance to Buyer of the Property and (d) non - requesting party have any liability to the requesting party or any other party for the qualification of the exchange transaction for tax -free exchange treatment under Section 1031 of the Internal Revenue Code or under any other provision. 12. BROKERS. Each party represents and warrants to the other that it dealt with no broker in connection with this transaction, other than Metro Commercial Real Estate, Ino. whose commission is to be paid by Seller per separate agreement, and each party agrees to defend, indemnify and hold the other harmless from and against any and all loss, liability and expense, including reasonable attorney's fees, that the indenmitee may incur arising by reason of the above representation by the indemnitor being false. The provisions of this Section 12 shall survive Closing. 13. NOTICES. All notices, demands, requests, consents, approvals or other communications (for the purpose of this Section collectively called "Notices") required or permitted to be given hereunder or which are given with respect to this Agreement shall be valid only if in writing and sent by registered or certified United States mail, return receipt requested, postage prepaid, or delivered by Federal Express or UPS courier service, addressed as follows: 9 zr�sr322/■Wjwc$4044404 a` rt+da,QeoneUta sbw To Seller With a copy to: To Buyer. 3333 New Hyde Park Road, Suite 100 P.O. 5020 New Hyde Park, NY 11042 X ���� Attention: Georgia Misoulis Barbara E. Briarnonte, Esq. at the same address. Facsimile No.: (516) 869 -7201 Telephone No: (516) 869 -7157 James A. Nardo P.O. Box 442 Hershey, PA 17033 Facsimile No.: (717) 533 -1592 Telephone No. (717) 533 -1216 Email: Abbcorealprops®aol.com With a copy to: David T. Mountz, Esq. 553 Locus Street Columbia, Pennsylvania 17512 Facsimile No.: (717) 684 -5562 Telephone No.: (717) 684 -6941 Email: dmountzl®earthlink.net To Escrow Agent Wolf, Block, Schorr & Solis -Cohen 1650 Arch Street Philadelphia, PA 19103 Attention: Alvin H. Dorsky, Esq. Facsimile No.: (215) 977 -2727 Telephone No.: (215) 977 -2070 To Title Company: Stewart Title Insurance Company 900 West Valley Road, Suite 1302 Wayne, PA 19087 Attention: Frances Hack Facsimile No.: (610) 687.0464 Telephone No.: (800) 563 -1155 or such other address as such party shall hereafter have specified by Notice given by the same means. Any Notice shall be deemed given when delivered to the carrier delivering same, delivery charges prepaid, and properly sealed and addressed. Any Notice may also be given by facsimile to the numbers set forth above, provided that a "hard copy" of such notice is sent within one (1) business day after such telecopier transmission in the manner above set forth; and in the case of notice by telecopier (with confirmation sent as aforesaid), notice shall be deemed given upon electronic confirmation of receipt. 14 BBFAULTS. 14.1 If Closing does not take place because of Buyer's default the Deposit shall be retained by Seller as agreed upon liquidated damages as Seller's sole remedy for such default, and thereupon this Agreement shall be null and void and of no further force or effect whatsoever (except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8). The parties hereto expressly agree that Seller's actual damages in the event of a default by Buyer would be extremely difficult or Unpractical to ascertain and that the amount of the Deposit represents the parties' reasonable estimate of such damages. 14.2 If Closing does not occur due to Seller's willful default and refusal to close despite Buyer's willingness to do so (such willingness includes waiver by Buyer of any uncured title objection properly made by Buyer under Section 6.1 or material breach of representation or warranty by Seller) (such willful default and refusal being hereinafter referred to as a "Seller Default"), then Buyer, as its sole and exclusive right and remedy as a result of such Seller Default, may elect to either (i) cancel this Agreement, in which event the Deposit shall be returned to Buyer, Seller shall be liable for any title and survey costs theretofore incurred by Buyer, and thereupon no party shall have any further right or obligation ;hereunder (except that Buyer shall remain liable on its obligations under Sections 4.2 and 10 uzviii.M14294 u+ f .lm .kllrlE11.4Rnmemgrnrnle.Li rem�tsUrvo• Mt I 15.8), or (ii) Buyer may enforce specific performance of this Agreement without any reduction or abatement of the Purchase Price. 14.3 If Closing should not occur for any reason whatsoever other than a default by Buyer or a Seller Default (including without limitation by reason of a material breach of representation or warranty of Seller or an uncured title objection properly made by Buyer under Section 6.1, or a failure to deliver any tenant estoppel required hereunder) which Buyer is not willing to waive, then in such event this Agreement shall be and be deemed cancelled, the Deposit shall be returned to Buyer, and thereupon Buyer shall have no other right, by way of damages or otherwise, against Seller notwithstanding the existence of any failure or breach of representation, warranty, covenant, title, provision of estoppel or other Closing condition (provided that Buyer will remain liable on its obligations under Sections 4.2 and 15.8). 14.4 Notwithstanding anything to the contrary contained in this Agreement, in the event of any litigation between Buyer and Seller arising from or relating to this Agreement, the prevailing party, in addition to and not in limitation of any other rights and remedies, shall be entitled to receive immediate payment of its reasonable attorneys fees, expenses and court costs from the other party. 15. MISCELLANEOUS. 15.1 No provision of this Agreement shall survive delivery of the deed except as herein expressly provided. The acceptance of the deed by Buyer shall be conclusive evidence of the performance by Seller of all of the provisions of this Agreement to be performed by Seller. 15.2 This Agreement (including the Exhibits attached hereto) contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings, if any, with respect thereto. 15.3 This Agreement may not be canceled, modified, changed or supplemented, nor may any obligation hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing. 15.4 The parties do not intend to confer any benefit hereunder on any person, fan or corporation other than the parties hereto and their respective successors or assigns. 15.5 "TIME IS OF THE ESSENCE" with respect to all provisions of this Agreement, with the sole exception that each of Buyer and Seller shall be entitled to a single adjourmnent (not to exceed two (2) business days in any event) of the Closing Date. 15.6 This Agreement shall extend to and be binding upon the legal representatives, heirs, executors, administrators and, subject to the provisions of this Agreement, the permitted assigns of the parties hereto. 15.7 If at the Closing Date, there are any proceedings pending to protest or reduce real estate taxes for the year in which the Closing occurs, then the parties agree that Buyer shall continue said proceedings and the services of Seller's attorneys, and Buyer agrees to share with Seller out of the recovery or savings, an a pro rata basis, the legal fees of Seller's attomeys, plus actual out -of - pocket expenses. Buyer shall not make any settlement or compromise of such proceedings without the consent of Seller. Any refund or reduction which covers a period prior to the Closing Date shall belong solely to Seller, and Buyer shall have no interest with respect to any proceedings which relate to prior years. The provisions of the three (3) preceding sentences of this Section 15.7 shall survive Closing. 15.8 Buyer represents and warrants that it will keep all information and/or reports and/or documents obtained from Seller or its agents (including without limitation the rent and other terns of the Space Leases), or related to or connected with the Property (including without limitation the existence of this Agreement and the Purchase Price) strictly confidential and will not disclose any such information to any person or entity (except for Buyer's attorneys, consultants and advisors; provided that any such parties similarly agree to treat such material confidentially), without the prior written consent of Seller. In amplification and not in limitation of the foregoing, Buyer may not make any public disclosure of the existence or terns of this Agreement prior to Closing. 15.9 This Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State wherein the Property is located. This Agreement shall be construed in accordance with its plain meaning and without reference to any maxim or rule of xuvr; ��emaaow- 1047..w 11 . . • . Sent by: Wolf Block 0000000000; 05/05/05 1:40R/0735; Page 1/1 IN WITNESS WKERSOY, Seller sod Buyer have satleuxid (hie Agnomens u of the day and year fast above written. MINIM& WITNESSLIII •.02,14944dio ttit&Wiiitth)b4 WITNESSESs BUYIRe IAMBS ARDO uf Execute= e(KMIcoANTITRue T Nun EdsrdSefl�flm Tide resident Dan of flecrow Agent signs • to menet its agreement with the provisions of Section ICAO) hereof: ESCROW AGENT, WOLF BLOCK SCUORR & SOLIS-COHEN SgvUt Dr Nam Ad, Ar ,se. *IP f,11.7.4e4- Dam ofReention: ./7.9kr on,. 13 may.....1PorrkM• flovan ...ION arm .4.rh ..001M11......111.4re.romob •he Alb interpretation providing that a writing should be construed against the party responsible for the drafting thereof. 15.10 This Agreement shall not be recorded or filed in the public records of any jurisdiction by either party and any attempt to do so may be treated by the other party as a breach of this Agreement. 15.11 This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be deemed an original. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 12 1010_211M440.064041A14 4alniiSIMOStigatana iktaster1431 ld4' aMILafWa' Pbr IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the day and year first above written. WITNESSES: '7)4"ser WITNESSES: BUYER: By. / -�. Lti(.s,_42.0 of Execution: a /03/0 ►&ICIMC £ - TRUST By: Name: and Senenman Title: VICO Preeldent Date of Execution: Escrow Agent signs to confirm its agreement with the provisions of Section 3(AXii) hereof: WITNESSES: ESCROW AGENT: WOLF, BLOCK, SCHORR & SOLIS -COBEN By Name: Title: Date of Execution: :•:aa:lamw wiannMr 13 SCHEDULE OF EXHIBITS 1. Real Estate 2. Space Leases 3. Service Contracts 4. Assignment and Assumption Agreement - Space Leases 5. Assignment and Assumption Agreement - Service Contracts 6. Permitted Exceptions 7. I Schedule of Litigation 14 anIM440040-1443.4■4 OziodueemoreracdvanecemsekkarIML4emenssrlalt:9Assmaistakkomdelov•~444*-1-em EXHIBIT I, REAL ESTATE . • . 15 110.11111M4090r-waam Ostirgusampaktermapagonjeig11014dYgggurufzUborgemijarAtinAPKWAvein E711B1T 1- Pate REAL ESTATE 16 :,1 .. a4r - fr q irt gi ego! i4II: It ;DE-. Al. •. ft, Irg. 148111: lit 1!.!/1.4 EXBIBIT A SPACE LEASES 17 lam.tarid4war-497-Am cblialaria.14111.11aftruaroi.i.fialLW Ismnaliker4b#4;404Air.....ki•44K gib 1. COCO'S 2. 3. 0=AWILMAZIA Schedule of Tenant Leases a. Lease Agreement — October 8,1997 b. Guaranty — October 8, 1997 c. Second Amendment — October 11, 2001 d. First Amendment — April 1, 2001 CVS a. Lease Amt — April 1,1976 b. Amended and Restated lease Agreement — January 13, 1988 c. Memorandum of lease — January 13, 1988 DILISBURG FLOORING a. Lease Agreement — July 24, 2004 b. Guaranty — July 24, 2004 4. ' GEORGE'S CLEANERS, INC. e. Lease Agreement — March 11, 2004, 5. GIANT FOOD STORES a. Lease Agreement — August 29,1975 b. Indemnification Agreement — September 18,1989 d. Amendment to Lease Agreement —May 11, 1989 23i PM4 Q 4o,a EXHIBIT 3 SERVICE CONTRACTS 1.. 18 naMil UPPER ALLEN PLAZA SCHEDULE OF SERVICE CONTRACTS CONTRACT DATE ADT SECURITY SYSTEMS JULY 03,1989 THB BRIC MAN GROUP, LTD MARCH 16,2003 E.H. GIVIER & SONS APRL 18,2000 SERVICE RMIR RD FIRE PROTECTION RISER & SUPERVISION AND CENTRAL STATION ALARM LANDSCAPING POWER SWEEPING & MAINTENANCE OF PAREQIO LOT I, iS ASSIGNMENT, made this a ("Assignee,. n xoF1.um day of ( "Assignor") and 200_ by and between a N SSEILD x`14 btt "A" attached hereto and Assignor is landlord under all those certain leases described on E hi made1a part hereof ( "Leases") relating to the property described on Willer attached hereto and made a i hereof. Assignor deems to assign to Assignee, and Assignee desires to accept the assignment from Assignor of all of Assignor's right, title and interest in and to the Leases. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties hereto, intending to be legally bound hereby, covenant and agree as follows: 1. Assignor hereby transfers, assigns and sets over unto Assignee all of Assignor's right, title and interest in and to the Leases, including, without limitation, all of Assignor's right, title and interest in and to the security deposits listed on Schedule A attached hereto and incorporated herein. 2 Assignee hereby accepts the foregoing assignment and assumes all of Assignor's obligations under the Leases arising from and after the date hereof. 3. Assignee agrees to, and hereby does, indemnify, save and hold Assignor harmless of, from and against any and all loss, cost, expense, liability, damages, actions, causes of action, demands or claims arising out of or in connection with the obligations of landlord under the Leases arising from and after the date hereof (including without limitation any that relate to the security deposits assigned and transferred to Assignee hereby). 4. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed the day and year first above written. ASSIGNOR: By: Name: Title: ASSIGNEE: Name: Title: 19 eon tgradigailtildessAlaWANNapvemowLai.kir n• EXHIBIT S ASSIGNMENT AND ASSUMP'T'ION OF SERVICE CONTRACT THIS ASSIGNMENT made this day of . 200_, by a ( "Assignor") and , a ( "Assignee"). WITNESSETH: Assignor is the owner of the property described on Exhibit "A" attached hereto and made a part hereof ( "Premises"). Assignor desires to assign to Assignee, and Assignee desires to accept the assignment from Assignor of all of Assignor's right, title and interest in and to those certain service contracts relating to the Premises described on Exhibit "B" attached hereto and made a part hereof ( "Service Contracts"). NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties hereto, intending to be legally bound hereby, covenant and agree as follows: 1. Assignor hereby grants, transfers and assigns to Assignee, its successors and assigns, all of the right, title and interest of the Assignor in and to the Service Contracts. 2. Assignee hereby accepts said assignment and assumes all of the Assignor's duties and obligations arising out of the Service Contracts from and after the date hereof. Assignee hereby indemnifies and agrees to defend and hold Assignor harmless from and against all damages, claims, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or relating to the Service Contracts from and after the date hereof. 3. The provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, Assignor and Assignee have each caused this Assignment to be duly executed the day and year first above written. ASSIGNOR: By Name: Title: ASSIGNEE: BY: Name: Title: 20 a Apr EXHIBIT 6 PERMITTED EXCEPTIONS See Schedule A attached. 2.: Encroachments of stoop areas, cellar steps, trim and cornices, if any, upon any street or highway. 3. Consents by any former owner for the erection of any structure or structures on, under or above any street or streets on which any portion of the Shopping Center may abut. 4.. Laws and governmental regulations that affect the use and maintenance of the Shopping Center. 5. Rights, if any, of any utility company to construct and/or maintain lines, pipes, wires, cables, poles, conduits and distribution boxes and equipment in, over, under, and/or upon the Real Estate or any portion thereof. 6. All notes or notices of violations of law or municipal ordinances, orders or requirements noted in or issued, after the date hereof, by the Departments of Housing and Buildings, Fire, Labor, Highway, Health or other State or Municipal Department or public utility having jurisdiction against or affecting the Shopping Center. 7. Current unpaid Real Estate Taxes and assessments, subject to apportionment as herein set forth. 8. Rights, if any, of tenants under Space Leases. 9. The Service Contracts. 10' Possible variation between tax maps and boundary lines or record descriptions of title. 11: Any lien or encumbrance which a tenant of the Shopping Center is by the terms of its lease or occupancy agreement or by law required to discharge, remove or comply with. 12. Any and all other covenants, easements, reservations, agreements and other matters, if any, of record as of the date of this Agreement; provided same do not prohibit the maintenance of the Real Estate or the existing use thereof Should a dispute arise as to whether any of such matters prohibit the maintenance or existing use of the Real Estate, Buyer agrees that same shall not constitute a title objection if the title company shall affirmatively insure that they do not prohibit such maintenance or existing use of the Real Estate. 21 nn 12M aa'wo4i w c�,.hx6,..lteme,..L ial n ...... LUIN met pbl RTNe -7 Aw. 771 • ALTA O ,.Polley Form • —1970 • U: SCHEDULE l� 5 This.poliay dos not Inaut pelnst Iori oe damps by iesws of the bllowingi • .: . 1. Easements or claims of easements. not shown by the public records. 2. Any variations in location of lines, dimensions or other matters which an accurate survey would disclose. Any liens or right to a lien hereafter, furnished, imposed 4. Building setback lines shown by the improvements shown'on for servicesr labor or material heretofore or by and. not shown by the public record,. in Plan Book 27, page 59 which are not violated a survey :node by C. W. Junkins on April 1, 1986. 5. Agreement amt forth in Miscellaneous Book 158, page 704. : 6. Right of May set forth in Miscellaneous Book 221, pagi 606. Company affirmatively insures that said objection does not affect the location and the use of the existing improvements on the subject premises, and further insures against any loss or damage by reason thereof. 7. Reaarvation and restrictions est forth in Deed Book o- 26,.paga 80. 8. MORTCACE: CUMBERLAND COUNT! INDUSTRIAL DEVELOPMENT AUTRORITE to COMMO1NWEALTB NATIONAL BANE, dated April 28, 1976. and recorded,' April 30, 1976 in Mortgage Book 603. page 87. Amount $1,550,000.00.• • 99. Assignment and Amended Option Agreement set forth in Miscellaneous Book 221, page 598. • 104 'Rights granted to Pennsylvania Power and'Light Company sat'forth in Miscellaneous Book 225, page 136 as shown on a survey made by C.R. Junkins on April 1, 1986. 11. Memorandum of Instgllmant Sale Agreement set forth'in Miscellaneous' Book 228; page '33.' • Landlords Waiver sat forth in Miscellaneous Boot 228, page 36. 12: 13. 14. .15. Mortgagee's Disclaimer set'forth in Miscellaneous Book 228, page 40. . Assignment of Leases use forth in Miscellaneous Book 234,: page 957. FINANCING STATF.I M: DEBTOR: SECURED PARTY: MEDI RECORDER OP DEEDS NO: CONTINUATION STATEMENT 71LED: UPPER ALLEN ASSOCIATES COMNONMILATH NATIONAL BANE .April 30, 1976 1176 April 27, 1981 • FTht -•7 R.. 37t r • Ar.TA ownettiPolky... ' • Form • — 2990 +I... • RAC 12385 SCHEDULE % . . Pollcy'No. 937015 This.poil y doarrwtdr•ermagabutloat or•.4mage by res orr of•thSdolbewlms . • • , • . 16. MORTGAGE: .CUMBERLAND COUNT! INDUSTRIAL DEVELOPMENT ACT/WRITE and ElACO DEVELOPMENT OF GIANTS, INC., a gennaylvania corporation, to GENERAL ELECTRIC CREDIT CORPORATION, dated June 11, 1986 and recorded June 24, 1986 in Mortgage Book 820, page 365. Amount $6,900,000.00. 17. ASSIGNMENT OF RENTS AND OTBER•INTERESTS.: RISCO DEVELOPMENT OF GIANTS, INC. (the "Assignor "), a Pennsylvania corporation, to GENERAL ELECTRIC CREDIT CORPORATION ( the "Assignee "), dated June 11, 1986 and recorded June 24, 1986 in Miscellaneous Book 319, page 321. 18. PINANCING STATEMENT — PROTNONOTARY'S OFFICE: DEBTOR: CUMBERLAND COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY SECURED PARTY.: GENERAL ELECTRIC CREDIT CORPORATION FILED: June 24, 1986 NO: I. 88835 DEBTOR: KD(C0 DEVELOPMENT OP GIANTS, INC. SECURED PARTY: . GENERAL ELECTRIC CREDIT CORPORATION PILED: June 24, 1986 NO: 88834 19. FINANCING STATEMENT = RECORDER OP DEEDS OFFICE: I • MOTOR: • CUMBERLAAN1? COUNTY INDUSTRIAL .DEVELOP(ENT.AUTROEITY SECURED PARTY :' • GENERAL ELECTRIC CREDIT CORPORATION FILED: June 24, 1086 NO: 2830 DEBTOR: R3MC0 DEVELOPMENT OF GIANTS, INC. SECURED PART!: GENERAL E-A1TRIC CREDIT CORPORATION FILED: Juno 24, 1986 AO: , 2837 EXHIBIT 7 SCHEDULE OF LITIGATION NONE 22 N:14151?1!4+29'96401444 C`AblOktneitainig1704.4•01100117014,41Ncroren■Amit.4.-1.ftegataikri4i474..ferwrnertofmla4AN OF DEE ' SPECIAL WARRANTY DEEDS JUL 14 All 1128 THIS INDENTURE, made this c2.p day of Hh� , 2005, by and between CUMBERLAND COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a body politic and corporate organized and existing under the laws of the Commonwealth of Pennsylvania ( "Grantor "), and LOUDOUN CENTRE LLC, designee of Kimco Giants Trustee, successor by merger to ICi.mco Development of Giants, Inc., assignee of Upper Allen Associates ( "the Grantee "). WITNESSETH, THAT: WHEREAS, Grantor desires to grant and convey to Grantee all right, title and interest of Grantor in and to the Project as defined in a certain Installment Sale Agreement dated as of April 28, 1976 between Grantor and Grantee; NOW, THEREFORE, in consideration of the sum of $1.00 and other good and valuable consideration to Grantor duly paid, the receipt and sufficiency of which are hereby acknowledged, Grantor does by these presents GRANT and CONVEY unto Grantee and Grantee's successors and assigns certain real estate situate in the Township of Upper Allen, Cumberland County, the parcel which is more fully described at Attachment "A" hereto (the "Property"). TO HAVE AND TO HOLD the said Property, all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining, unto Grantee, and Grantee's successors and assigns, forever, Grantor hereby covenanting that the Remainder is free and clear from any encumbrance done or suffered by Grantor except for the Exceptions, and that Grantor will WARRANT and DEFEND the title to the Remainder unto Grantee and Grantee's successors and assigns forever against the claims and demands of all persons claiming the same by, through or under Grantor except for the Exceptions. IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be signed and sealed the date first above written. 567163.1 CUMBERLAND COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY fool( 269 PAtt4485 The address of the above-named Grantee is Loudoun Centre LLC, PO Box 442, Hershey PA 17033 GRANTEE: By: 441t (SEAL) Title: A ii,ftoa. ircv, e,,ntdre, flamberland County Recorder of rm.:is lostruNevit Filing Receirik 562493 Instrq 2005-025208 7/14/2005 11:37:51 Remarks: MOATZ & rEHER LOUROUN DEED 14.50 DEED - WRIT .50 DEED - RTT STATE :=460.00 MECHANICSBURG 12234.00 UPPER ALIEN TWP 12230.00 DEED - A/H 11.50 •.C.S. / A.T.J 10.00 iJ IMIVEMENT 2,Y) !EC. ItIPRVMT fJtie 3.00 Cbeckft 4954 $24,501.00 Checkl 4963 $.50 Nall 4953 12+:00.00 Total Received .... $4i3-961.50 iodx- 269 PAcE4486 COMMONWEALTH OF PENNSYLVANIA COUNTY OFi- ) SS: On this, the 2.04 day of , 2005, before me, a Notary Public, the undersigned officer, personally appeared Robert A. Akers, who acknowledged that he is the Chairman of CUMBERLAND COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a Pennsylvania body politic and corporate, and that he as such officer, being authorized to do so, executed the foregoing Special Warranty Deed for the purposes therein contained by signing the name of said corporation by himself as such officer. IN WITNESS WHEREOF, I hereunto set my hand and official seal. No My Commission Expires: (SEAL) COMMONWEALTH OF PENNSYLVANIA Notarial Seel Judea- I(rape. Notary Pubic atyOf Harrisburg. Dauphin County My Commission Expires Oct. 14, 2004 Member, Penneytvenle Aeeodetlon of Notarise b OK .PAGF4+ ' All that certain piece or parcel of land situated in the Township of Upper Allen, County of Cumberland and Commonwealth of Pennsylvania, more particularly bounded and described as follows, to wit: Beginning at a spike in the center line of Gettysburg Pike (Township Road, T -621) at the northeastern comer of lands of Elvin B. Hess and Charlotte Hess, his wife, said last mentioned lands having been previously a part of the lands of which the lands herein described were formerly a part; thence along the center line of said Gettysburg Pike (T- 621), North 30 degrees 14 minutes 25 seconds East, a distance of four hundred thirty - five (435) feet to a spike in the same at line of remaining lands of the Grantors herein; thence along the line of remaining lands of the Grantors herein, South 59 degrees 40 minutes 30 seconds East, a distance of six hundred sixty and twelve one - hundredths (660.12) feet to a pipe on the northern right -of -way line of Legislative Route No. 123; thence along said northern right -of -way line of Legislative Route No. 123, South 26 degrees 23 minutes 47 seconds West, a distance of four hundred thirty -five (435) feet to a pipe on the same at line of lands of Elvin B. Hess and Charlotte Hess, his wife, aforesaid, thence along said line of lands of Elvin B. Hess and Charlotte Hess, his wife, North 59 degrees 45 minutes 36 seconds West, a distance of six hundred eighty -nine and twenty -eight one - hundredths (689.28) feet to a spike in the center line of Gettysburg Pike (T -621), the place of Beginning. Containing six and seventy -three one - hundredths (6.73) acres of land. Being Lot No. 1 in a certain subdivision plat made for the Grantors herein by Myers - Macomber Engineers, Inc., on April 18, 1975, and recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 27, Page 59. Reserving, however, unto the Grantors herein, their heirs and assigns, the full, free and uninterrupted right of passage at all times hereafter forever, in, over, across and through a certain road or lane twenty (20) feet in width extending from said Gettysburg Pike (T -621) on the northwest to the northern right -of -way line of Legislative Route No. 123 on the southeast and being located along the northeasternmost twenty (20) feet of the lands herein described and conveyed, said road or lane being shown on Sheet No. 2 of the Subdivision Plat mentioned above being designated thereon as "Easement for Access to Adjoining Property". Being a portion of that certain larger tract of land which Jonas W. Zimmerman, widower, by his deed dated April 1, 1939 and recorded in the Office of the Recorder of Deeds aforesaid in Deed Book "A ", Volume 12, Page 64, granted and conveyed unto Joseph H. Hess and Ruth F. Hess, his wife, the Grantors herein. The lands described hereinabove are granted and conveyed under and subject, nevertheless, to the following use restrictions, covenants and conditions which shall be covenants running with the land: ) The land hereinabove described shall not be used for the following purposes: motor vehicle sales; motor vehicle repairs; motor vehicle service; sales of motor vehicle parts and/or accessories; sale of petroleum Exhibit A b ik 269 PAGE4488 products for fuel, lubrication or service of motor vehicles. All of the foregoing uses are prohibited on said premises. (ii) The land hereinabove described shall not be used for the exhibition of motion pictures, stage shows or other forms of theatrical or vaudeville exhibitions or entertainment. (iii) The land hereinabove described shall not be used as a place for the consumption of alcoholic beverages. The foregoing proscribed uses are prohibited on all parts of said lands and by all persons whether they be owners, tenants, licensees, possessors or otherwise. Tax Parcel #42 -28- 2419 -058 Exhibit A I Cert. In Cur,. 2 PAGE4488 IIY•tq p (644 COMMONWEALTH OF PENNSYLVANIA 'DEPARTMENT OF REVENUE WISAU OP INDIVIDUAL TAXIS CET. 111060E NAIRISSWIO, PA 17111-0003 REALTY TRANSFER TAX STATEMENT OF VALUE See Reverse for Instructions RECORDER'S USE ONLY State Tax Feld Nadi Nino. Pep. Number bats Recorded gRijklst -Ca.< Complete each section and file in duplicate with Recorder of Deed. when (1) the full value/consideration is not set Forth in tfa )Feld, (2) when the deed Is without consideration, or by gift, or (3) a tax exemption is claimed. A Statement of Value is not required iF the transfer Is wholly exempt from tax based on: (1) family relationship or (2) public utility easement. If more space Is needed, attach additional sheet(s). A CORRESPONDENT - All Inquiries may be directed to the following parson: Name Telephone Number] David T Mountz, Esq AnoCad. (717 Street Address City State 553 Locust Street Columbia PA B TRANSFER DATA Dole of Aampf ence of Document Graetar(,)IL.ssor(s) Cumberland County GrO"fee(s)ne1es(t) StrTnnduntrial novolnpmunt Authority STMTT.) n d n Centro Tar eetA&Imn dd c /o Coyne & Coyne 901 MarketStree�r Stahl Zip Harrisburg PA 17011 Hershey C PROPERTY LOCATION 684 -6941 17512:: June 30. 2005 PO Box 442 Stale PA zip Coa. 1 7033 5tnet A 121 Gettysburg Pike & County P1 to a1 14 Cumberland D VALUATION DATA Mechanicsburg tawnsmp Upper A11et o Pca u »r L er ip:. x Par 42 -28 -2419 -058 1. Actvd Carp Consideration 21446,000.00 2. Other Could rotlan + 0 3. Total Consideration = 2`446,000.00 4. County Assessed Value 3,600,000.00 S. Common Level Katie Fodor x 100% 0, Fair Market Valve ■ 3.600,00d.00 E EXEMPTION DATA Ia. Amount of Exemption Claimed n lb. Percentage of Interest Conveyed 2. Check Appropriate Box Below for IxemWoe Claimed ❑ Will or intestate succession ❑ Transfer to Industrial Development Agency. ❑ Transfer to a trust. (Attach complete copy of trust agreement Identifying all beneficiaries.) ❑ Transfer between principal and agent. (Attach complete copy of agency/straw party agreement.) ❑ Transfers to the Commonwealth, the United States and Instrumentalities by gift, dedication, condemnation or In lieu of condemnation. (If condemnation or in lieu of condemnation, attach copy of resolution.) ❑ Transfer from mortgagor to a holder of a mortgage in default. Mortgage Book Number , Page Number ❑ Corrective or confirmatory deed. (Attach complete copy of the prior deed being corrected or confirmed.) ❑ Statutory corporate consolidation, merger or division. (Attach copy of articles.) ❑ Other (Please explain exemption claimed, if other than listed above) (mare of end I!.,.,. File Number) Under penalties of law, I declare that I hove examined the Statement, tnduding accompanying kilo malign, and to the best of my knowledge and belief, It Is true, correct and complete. 7/12/0S- 269 PAtt4490 EXHIBIT `D' AGREEMENT This Agreement is entered into as of the 21941 day of , 2012 (the "Effective Date"), by and between GIANT FOOD STORES, LLC, a Delaware limited liability company i("Giant"), and LOUDOUN CENTRE LLC, a Pennsylvania limited liability company ("Master Landlord"). BACKGROUND: A. Master Landlord's predecessor, as lessor, and Giant's predecessor, as lessee, entered into a Lease Agreement, dated August 29, 1975, as modified by an Amendment to Lease Agreement, dated May 11, 1989 (collectively, the "Master Lease"), for certain store space containing approximately 37,280 square feet (the "Demised Premises") located in a shopping center (the "Shopping Center") situate at 121 Gettysburg Pike in Upper Allen Township, Cumberland County, Pennsylvania. B. Giant, as sublessor, and Leon S. Gehman and Anna H. Gehman, husband and wife, as sublessee (together with its successors and assigns, the "Subtenant"), entered into a Sublease of The entire Demised Premises, dated September 10, 2003 (as amended, the "Sublease"). C. Subtenant has leased a portion of the Demised Premises to Planet Fitness Harrisburg North, LLC (together with its successors and assigns, "Planet Fitness") pursuant to a Sub-Sublease dated April 5, 2006 (as amended, the "Planet Fitness Sublease"). D. Master Landlord and Giant desire to terminate the Master Lease, all without disturbing Subtenarit's rights under the Sublease, and to cause the Sublease to become a direct lease by and tbetween Master Landlord, as lessor, and Subtenant, as lessee. (A2347005:I ) NOW, THEREFORE, in consideration of the mutual promises set forth herein, and with intent to be legally bound, the parties covenant and agree as follows: 1. Noindisturbance. Effective concurrently with the termination of the Master Lease pursuant to Section 2 below: (a) Master Landlord agrees: (i) the Sublease shall remain in full force and effect in accordance with its terms and shall not terminate or be extinguished by virtue of the termination of the Master Lease, and those terms of the Master Lease which, by the terms of the Sublease are incorporated into or otherwise made a part of the Sub ease, shall also remain in effect as if set forth verbatim in the Sublease, and (ii) to recognize the Sublease as a direct lease between Master Landlord, as lessor, and Subtenant, as lessee, and (iii) not to disturb the rights, possession and occupancy of Subtenant of and to the Premises, provided Subtenant is not in defaul It in the payment of rent or other amounts due under the Sublease or in the performance or observance of any of the other obligations or conditions of the Sublease beyond applicable notice and dure periods, and (iv) Subtenant shall be entitled to exercise all of the rights and shall be bound by all of the obligations, which inure to the benefit of, or constitute obligations of, Subtenant, as set forth in the Sublease, and (A2847005:I -2 (b); Master Landlord shall succeed to the position of lessor under the Sublease and will be bound by all of the sublessor's obligations under the Sublease 2. Termination of Master Lease. (a) As between Master Landlord and Giant, the Master Lease is hereby terminated. (b) It is the intent of this Agreement that the Subtenant's rights and obligations under the Sublease shall be unaffected by the terms of this Agreement. 3. Release. (a) Subject to subsection (d) below, Giant hereby releases Master Landlord from any and all claims and liabilities arising out of the Master Lease. ! (b) Subject to subsection (c) below, Master Landlord hereby releases Giant from any and all claims and liabilities arising out of the Master Lease. (c) Giant hereby agrees to indemnify Master Landlord against, and hold Master Landlord harmless from, any and all suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys' fees and disbursements) which Master Landlord may sustain or incur, arising out of, in connection with or by reason of, Giant's failure to observe, perform or comply with any of its obligations as sublessor under the Sublease prior to the Effective Date. (A2847005:1) 3 (d); Master Landlord hereby agrees to indemnify Giant against, and hold Giant harmless from, any and all suits, complaints, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys' fees and disbursements) which Giant may sustain or incur, arising out of, in connection with or by reason of, Master Landlord's failure to keep, perform or comply with any of its obligations as lessor under the Sublease on or after the Effective Date, together with any and all such suits, claims or actions brought, filed or threatened by the Subtenant, or any person or party claiming by, under or through the Subtenant, with respect to Master Landlord's actions occurring on, before or after the Effective Date (including, but not limited to, Master Landlord's actions or failures to act under the Master Lease on or before the Effective Date). 4. Planet Fitness. Master Landlord consents to: (a) The Planet Fitness Sublease. (b) Gehman subleasing additional space within the Demised Premises to Planet Fitness, provided that the total area subleased to Planet Fitness shall not exceed 13,000 square feet. (c) Gehman and/or Planet Fitness making certain alterations to the Demised Premises at their sole cost, at no expense to Master Landlord, to enhance the additional space to be occupied by Planet Fitness (the "Alterations"). The Alterations must be performed by Gehman and/or Planet Fitness in a 'good and workmanlike manner, in accordance with all applicable laws and in a manner which will not cause any structural damage or reduction in value to the Demised Premises. If required by Gehman, the Master {A2847005:1) 4 Landlord ;shall execute the building permit application for the Alterations within five (5) business days following request. Master Landlord, at no expense to Master Landlord, agrees to cooperate with Gehman to permit Gehman to make any reasonable modifications to the Alterations requested by Gehman from time to time, as well as the execution of any other or additional documents required by any governmental entity required to lawfully commence or complete the Alterations and obtain occupancy and use permits or approvals. 5. Conditional Modifications to the Sublease. (a) The word "reasonable" shall be substituted for "sole" in Sections 11, 14 and 16 of the Sublease. Unless Master Landlord provides written notice to Gehman denying consent to any request under Sections 11, 14 or 16 Of the Sublease within ten (10) business days following written request kii'such consent and provides reasonable, detailed explanations for such deniallin the denial notice, such consent shall be deemed granted. (b) 1 The modifications set forth in Subsection (a) immediately above shall become effective if and when Gehman provides written notice to Master Landlord that it agrees and consents to such modifications of the Sublease. 6. Third Party Beneficiary. Master Landlord and Giant mutually acknowledge and agree that the ,Subtenant is entitled to be, and shall constitute, a third party beneficiary of the terms and provisions of this Agreement. Giant shall provide Subtenant with a copy of the fully executed version of this Agreement. 7. Miscellaneous. (A2847005:1) 5 (a) This Agreement sets forth the entire understanding with respect to the subject matter hereof and any prior agreements, understandings or obligations are hereby merged into this Agreement. (b)1 No modification, amendment, waiver or release of any provision f this Agreement or of any right, obligation, claim or cause of action arising he'reunder, shall be valid or binding for any purpose whatsoever, unless in Writing and duly executed by the party against whom the same is sought to be asserted. (c) I This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns, and shall run with the land referred to in this Agreement as the Shopping Center. IN WITNESS WHEREOF, the parties hereto have duly executed or caused this Assignment to be executed as of the day and year first above written. ATTEST: By Name:i Title: CFO {A2847005:1} -6 MASTER LANDLORD: LOUDOUN CENTRE LLC 41111111111:1,„ By: Name: Title: al-do MembeX GIANT: GIANT FOOD STORES, LLC Name: Tim ahoney Title: Se or Vice Presid - Real Es ate EXHIBIT `G2' EXHIBIT E' Purchased: 6/30/2005 LOUDOUN CENTRE AUDIT ho p» aIne Centre Exn nses Gehman /Giant Period 41 Tenon: 6/30/2005 thru 8/31/2007 (26 mos.) S.C. Sq, ft et purduu • 59,470 Sq. ft Period *1 _ Period *1 ... „ PIP MEN 1. GYM 37,290 q. ft 63% Rent 379,816.58 379,816.58 0 2.0/5 10,000 50. ft 1716 Tun: $ 168,391.81 Tan: 106,086.84 73,409.16 32,677.68 3.00lsturg Flooring 4,000 q. R 7% Ins. 5 12,963.98 Ina 8167.31 8,16731 4. Coco's Plus 2,640 q. ft 4% CAM: $ 76,457.07 CAM: 48,167.95 32,060.82 16,10713 5. George's 2,250 q. ft 4% Admits: $ 38,671.93 Admin: 24,363.32 24,363.32 6. %/aom 3,300 q. R. 616 Operations: $ 45,537.12 Operations: 27,111.93 27,111.93 9/e Bair. Credit 19,17216 Period 02 9/1/2607 thru 10/31/2007 (2 mos.) Period *2 Period *2 Immix S.C. q. ft. after demo 91 • 53,530 sq. ft. B.011011 1612 4813Or8 1. GYM 37,280 q. R 70% Rent 29,216.67 ' 29,216.66 0 2.0/5 10,000 q. ft 1916 Taw: $ • Taut 0.00 27,831.17 27,631.17 3. Wilbur, Flood', 4,000 q. ft 7% Ins. $ 1,274.48 Ina 692.14 892.14 4. George's 2,250 sq. R 4% CAM: $ 1,18331 CAM; 1,599.72 1I,543.15 11,243.43 Admin: $ 533.97 Admin: 373.76 373.78 Opratlans: $ 2,695.53 Operation: 1,585.43 1,585.43 R/e Base: Credit Period *3 11/1/2007 thru 2/28/200* (4 moo) Period 03 Period 03 Tenants: S.C. sq. ft. after Demo 02 • 52,335 sq. R 5m8318 16(2 Biding! 1. Giant 37,280 sq. ft 71% Rent 58,43333 58,433.32 0 2. 05 10,000 q. ft 1916 Taw: $ 13,687.21 Tun: 9,717.92 0 9,717.92 3. Duisburg Flooring 4,000 q. ft 8% Ina $ 3,149.04 Ina 2,235.82 2,73532 4. George's 1,056 q. R 2% CAM: $ 10,362.11 CAM: 7,357.10 5,341.39 2,015.71 Admin: $ 4,079.75 Admin: 2,896.62 2,896.62 Operation: $ 6,265.58 Operation= 3,867.21 3,887.21 R/e 8ase: Credit Period 114 3/1/2001 Uuu 7/33/2001 (5 moo) Period 44 Period *4 1911sa= S.C. sq. ft. after Demo R9 • 45,996 q. ft. 5888033 Pd@ 51(8001 1. Glen 37,280 q. ft. 7716 Rent 73041.67 73,041.65 0 2.005 10,000 q. ft 21% Taws: $ 49,42000 Taw: 38,059.56 0.776.48 29,263.08 3. George's 1,056 q. R 2% In. $ 1,507.01 Ina 1,160.40 1,160.40 CAM: 5 7,946.75 CAM: 6,119.00 11.366.05 5,447.05 Adrnln: $ 8,832.26 Admin: 6,800.84 6,80024 Operetlam: $ 9,901.17 Operations: 5,919.03 5,919.03 R/e Base: Credit 9,586.08 Period NS 911/200* thru 7/31/2612 gee moo) Period NS Period NS Tenants S.C. q. R Aar 09mo 84 • 51,551 sq. ft. [ABM PAIQ 58hMte 1. Giant 37,280 q. R 72% Rant 702199.64 701,200.06 0.22 2.015 13,225 q. ft 26% Tewe: $ 474,136.71 Tan: 147,218.69 82,413.64 64,805.05 3. George's 1,056 q. ft 1% Ina $ 34,149.15 Ina 24,587.39 24,587.39 CAM: $ 103,105.26 CAM: 74,235.78 111,546.43 37,31064 Admin: $ 91,701167 Admin: 36,906.28 36,906.21 Operations: $ 141,81679 Opretiont 47,382.09 47,36209 R/e Ban: Credit 38,344.32 Period 06 8/1/2012 thus 11/30/2017 (4 moo.► Period 06 Period 06 Raman S.C. sq. ft after Glint exit • 51,561 q. ft 586018 5*12 *!1865! 1. Getman 37,280 q. ft 72% Rent 58,433.32 56,405.32 28.00 2.0/5 13,125 sq. ft 26% Taw: $ • Thom 3. George's 1,056 q. ft. 2% Ina $ 4,576.59 Ina 3,295.14 3,295.14 0138 $ 3,267.40 CAM: 2,352.53 567.13 1,785.40 Admin: 5 1,176.60 Admin: 847.15 847.15 Operations: $ 9,609.32 Operation= 3,204.05 3,204.09 R/e Ban: Credit Period N7 12/1/201211RU 9131/2013 (9 mos.) Period *7 Period 07 18016jb S.C. sq. ft after CVS exit • 36336 q. R 5!18!438 5612 Mara 1. Gehman 37,280 q. ft 9796 Rent 131,475.00 137,411.97 63.03 2. George', 1,056 sq. R 316 Tan: $ 35,103.82 Tam: 33,481.65 0 33,481.65 Ina $ 6,77526 111. 6,572,39 6,57239 CAM: $ 13,199.59 CAM: 12,803.60 1,51139 11,292.01 Admin: $ 8,251.88 Admire 7,92565 7,928.65 Opratlan: $ 9,854.20 Operation: 9,216.63 9,215.63 R/e Base•. Credit 9,585.08 Total Duo 264018.11 LOUDOUN TENANT PAYMENTS -GIANT RENT TAXES CAM 6/30/05 - 8/31/07 S 379,816.58 73,409.16 32,060.82 9/1107 - 10/31/07 29,216.66 27,831.17 12,843.15 11/01/07 - 228/08 58,433.32 -0- 5,341.39 3/1/08 - 7/31/08 73,041.65 8,776.48 11,566.05 8/1/08 - 7/31/12 701,200.06 82,413.64 111,546.43 8/1/12 - 11/30/12 -0- -0- -0- 12/1/12 - 8/31/13 -0- TOTALS PAID S 1,241,70817 192,430.45 173,357.84 LOUDOUN EXPENSES 6/30/05-8/31/07 - PERIOD 1 Lot Sweep $ 8,626.90 Lot Stripe -0- Landscape 4,866.60 Fire Monitor/Fire Phone 4,004.74 Inspections 463.22 Lot Lighring/Signage 6,509.08 Electric-Utility -0- Insurance 12,963.98 Trash 504.94 Snow Removal 38,221.20 General Prop. Main/Repairs -0- Roof Repair 5,534.97 Plumbing Repair 6,321.53 Electrical Repair 822.58 Parking Lot Repair 131.31 Cleanin,g/Power Washing 450.00 Admin Fee 38,671.93 -Operatotns- - Ta_xes 168,391.81 LOUDOUN EXPENSES 911107-10/31107 — PERIOD 2 Lot Sweep 680.00 Lot Stripe -0- Landscape 361.66 Fire Monitor/Fire Phone 323.44 Inspections -0- Lot Lighting/Signage 834.54 Electric-Utility -0- Insurance 1,274.48 Trash 85.67 Snow Removal -0- General Prop. Main./ Repairs -0- Roof Repair -0- Plumbing Repair -0- Electrical Repair -0- Parking Lot Repair -0- Cleaning/Power Washing -0- Admin Fee 333.97 Operations — — --2;695753-- Taxes -0- LOUDOUN EXPENSES 11/1/07-2/28/08 - PERIOD 3 Lot Sweep $ 1,824.00 Lot Stripe -0- Landscape 1,116.15 Fire Monitor/Fire Phone 648.18 Inspections 100.00 Lot Lighting/Signage 2,598.73 Electric-Utility -0- Insurance 3,149.04 Trash 184.15 Snow Removal 3,228.20 General Prop. Main./Repairs -0- Roof Repair 662_70 Plumbing Repair -0- Electrical Repair -0- Parking Lot Repair -0- Cleaning/Power Washing -0- Admin Fee 4,079.75 Operations _ — -6,265:58-- Taxes 13,687.21 LOUDOUN EXPENSES 3I/08-751/08 — PERIOD 4 Lot Sweep $ 960,00 Lot Stripe -0- Landscape 542.49 Fire Monitor/Fire Phone 820.06 Inspections 250.50 Lot Lighti ng/S ignaae 1,742.94 Electric-Utility -0- insurance 1,507.01 Trash 261.01 Snow Removal 1,414.00 General Prop. Main./Repairs 1,393.62 Roof Repair 562.13 Plumbing Repair Electrical Repair Parking Lot Repair Cleaning/Power Washing Admin Fee 8,832.26 Operations Taxes 49,428.00 LOUDOUN EXPENSES 8/1/08 - 7/31/12 - PERIOD 5 Lot Sweep S 10,248.00 Lot Stripe -0- Landscape 13,839.51 Fire Monitor /Fire Phone 3,157.33 Inspections 2,020.00 Lot Lighting/Signage 10,100.18 Electric- Utility -0- Insurance 34,149.15 Trash 2,036.28 Snow Removal 55,640.00 General Prop. Main./R.epairs -0- Roof Repair 1,869.51 Plumbing Repair 985.00 Electrical Repair 1,209.45 Parking Lot Repair 2,000.00 Cleaning/Power Washing -0- Admin Fee 91,708.67 operaiiots- — - -- — Taxes 465,086.71 Tax Appeal 9,050.00 LOUDOUN EXPENSES 8/1/12-11/30/12 — PERIOD 6 Lot Sweep -0- Lot Stripe -0- Landscape 2,316.00 Fire Monitor/Fire Phone 266.18 Inspections -0- Lot Lighting/Signage 685.22 Electric-Utility -0- Insurance 4,576.59 Trash -0- Snow Removal -0- General Prop. Main./Repairs -0- Roof Repair -0- Plumbing Repair -0- Electrical Repair -0- Parking Lot Repair -0- Cleaning/Power Washing -0- Adrnin Fee 1,176.60 Opetations' -9,609.32 Taxes -0- LOLIDOUN EXPENSES I2/1/11 — 8/31/13 — PERIOD 7 Lot Sweep $ -0- Lot Stripe -0- Landscape 3,474.00 Fire Monitor/Fire Phone 616.59 Inspections -0- Lot Lighting/Signage 1,881.50 Electric-Utility -0- Insurance 6,775.66 Trash -0- Snow Removal 5,020.00 General Prop. Main./Repairs Roof Repair 2,207.50 Plumbing Repair -0- Electrical Repair Parking Lot Repair -0- Cleaning/Power Washing Admin Fee 8,261.86 Operations 9,854.20 Taxes 35,103.82 LOUDOUN TAXES 2005 County/Mun. $ 4.586.75 School 45,264.24 Total 49,850.99 2006 County/Mun. 13,081.83 School 45.264.24 Total 58.346.07 2007 County/Mun. 13,413.47 School 46.781.28 Total 60,194.75 2008 County/Mun. 13,687.21 School 49.428.00 Total 63.114.21 TAX U1 /GIANT U2 /CVS U3 /GEORGES 2009 County/Mun. $ 8,196.14 17,230.50 382.90 School 30,588.32 64,305.00 1,429.00 Hydrant 225.50 81_43 66 =26 Totals 39,009.96 81,616.93 1,818.16 2010 County/Mun. 8,986.00 18,891.00 411.10 School 31,465.94 66.150.00 1 470.00 Totals 40,451.94 85,041.00 1,881.10 2011 County/Mun. 7,021.84 15,989.64 333.68 School 25,114.75 57.189.60 1,216.80 Totals 32,136.59 73,179.24 1,550.48 2012 County/Mun. 7,231.70 16,467.53 350.37 School 25.364.50 57.75830 1,228.90 - t Totals 32;96:20 -- - - - 74 25:83- - - - - -1 S7 - -- - - - -- - 2013 County/Mun. 8,117.15 -0- 393.27 School 25.364.50 -0- 1.228.90 Totals 33,481.65 -0- 1,622.17 Purchased: 6/30/2005 LOUDOUN CENTRE AUDIT Shopping Centre Expenses Gehman Giant Period #1 6/30/2005 thru 8/31/2007 126 mw.) Tenaons; S.C. sq, k, at purchase = 59,470 sq. ft. Perlod #1 Period 01 fppensg '630 Bglance 1. Glint 2. CVS 3. 011Isburg Flooring 4. Coco's Plea 5. George's 6. Vacant 37,280 sq. h, 63% 10,000 sq. k, 17% 4,000 sq. ft. 7% 2,640 sq. h. 4% 2,250 sq. h. 4% 3,300 sq. k. 6% Taxes: $ 168,391.81 Ins. $ 12,963.98 CAM: $ 76,457.07 Admin: $ 38,671.93 Operations: $ 45,537.12 Rent: 379,816.58 Taxes: 106,086.84 Ins. 8,157.31 CAM: 48,167.95 Admln: 24,363.32 Operations: 27,111.93 N/e Base G,.111 379,816,58 73,409.16 32,060.82 0 92,6 /7.68 8,157.31 16,107.11 14,363.32 27,111.93 19, 171.36 Period 62 9/1/2007 thru 10/31/2007 (2 mos.) Tenants: 5.C, sq. 31. after demon .: 53,530 sq. k. Period 82 Period 412 8alaalse PAID 4,94.1-19r U 2 /,631.1 2 89114 11,243.43 373,78 1,585.41 1. Giant , 37,280 sq. ft. 70% 2. CV5 I 10,000 sq. ft. 19% 3. DIOsburg Flooring 4,000 sq. ft. 7% 4. George's I 2,250 sq, ft. 4% I Taxes: $ Ins, $ 1,274.48 CAM: $ 2,285.31 Admin: 5 533.97 Operations: 5 2,695.53 Rant: 29,216.57 Taxes: 0.00 Ins, 892.14 CAM: 1,599.72 Admin: 373.78 Operations: 1,585.43 N/e Base Credit 29,216.66 27,831.17 12,843.15 Period #3 11/1/20071hrx 0/28/2008 14 mos,) Tenants: 5.C. sq. fl. after Demo N2 = 52,336 sq. ft Period 93 Period 93 txpelne VAIU valance 1. Giant 37,280 sq. k. 71% 2.015 I 10,000sq, 35. 19% 3. olllsburg Flooring 4,000 sq. ft. 8% 4. George's 1,056 sq. k. 2% Taxes: $ 13,687,21 Ins. $ 3,149.04 CAM: 5 10,362.11 Admin: $ 4,079,75 Operations: 5 6,265.58 Rent: 58,433.33 Taxes: 9,717.92 Ins, 2,235.82 CAM: 7,357.10 Admin: 2,896.62 Operations: 3,887.21 R/e Base: C,eiln 58,433,32 0 5,341.39 U 9,717.92 3,435.82 2,915.71 2,896.62 1,887.71 Period #4 3/1/2008 thru:7 /31/2008 (5 mos.) Tenants: S.C. sq. ft. after Demo 83 =48,336 sq, k. Period 114 Period #4 Expense P9I3 6gl:lnlr. 1. GWnt 37,280 sq. k. 77% 2. CV5 1 10,000 34. k, 21% 3. George's 1,056 sq. (3. 2% Taxes: $ 49,428.00 103. 5 1,50701 CAM: 5 7,946.75 Admin: 5 8,832.26 Operations: $ 9,901,17 Rent: 73,041.67 Taxes: 38,059,56 Ins. 1,160.40 CAM: 6,119.00 Admin: 6,800,84 Operations: 5,919.03 R/e Base. 1 :143,1 73,041.65 8,778.48 11,566.05 U 19,283.08 1,160.40 5,447.05 6,150.84 5,919.0.1 9,588./19 Period 95 8/1/2008 thru 7/31/2012 (48 mos.) Tenants: S.C. sq. k. after Demo 84 51,561 sq. k. Period #5 Period 135 (.9.1.9. 1,nrn 84•19.1e 1. Glam 2.0/5 3. George's 37,28Dsq. ft. 72% 13,225 sq. ft. 26% 1,056 sq. ft. 2% Taxes: $ 414,136.71 Ins. $ 34,149,15 CAM: $ 103,105,26 Admin: $ 91,708.67 Operations: $ 141,818,79 Rent: 701,199.84 Taxes: 147,218.69 Ins. 24,587.39 CAM: 74,235,79 Admin: 36,906.28 Operations: 47,362.09 R/e ease: Credit 701,200.06 82,413.64 111,546.43 9.22 64,805.05 29,587 39 37,310164 36,906.28 47, 362.09 38,344,32 Period #6 8/3/2012 91' u 11/30/7052 (4 mw.) Tenants: S.C. sq. ft. after Giant exit = 51,561 sq. ft. Period 96 Period 96 fgpame i'AlU 1914nce 1. Gehmen 2.1535 3. George's 37,280 sq. ft. 72% 13,225 sq. ft 26% 1,0568q. h. 2% Taxes: 5 Ins. $ 4,576.59 CAM: 5 3,267.40 Admin: 5 1,176.60 Operatlons: 5 9,609.32 Rent: 58,433.32 Taxes: Ins. 3,295.14 CAM: 2,352.53 Admin: 847.15 Operations: 3,204.05 R/r Baa, Crerin 58,405.32 567:13 19.00 3,295.14 1,789 40 847.15 3,204.05 Period 67 12/1/2012 thru 8/31/2053 39 mos.) 1_enP...! : S.C. sq. ft. after CVS exit = 38,336 sq. ft. Period 437 Period 47 rxprgar 1'91)1 dal.,n.r 1. Gehman 2. Gedrge's 37,280 sq. ft. 97% 1,056 sq. h. 3% Taxes: 5 35,103,82 1111. 5 6,775.96 CAM: $ 13,199,59 Admin: 5 8,261.86 Operations: 5 9,854.20 Rent: 131,475,00 Taxes: 38481.65 • Ins. 6,572.39 CAM: 12,803,60 Admin: 7,928.65 Operations: 9,216.63 R/e Base: Gediz 131,411.97 0 1,511.59 58113 33.481.65 6.521.19 11,291 01 7.978.6) 9,716,63 9,586,08 Total Due: I68,049.11 CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant for the law office of Cunningham & Chernicoff, P.C., do hereby certify that a true and correct copy of the COMPLAINT in the above-captioned matter was sent first class U.S. Mail to the following: Helen L. Genunill, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 Date: April /0 , 2014 F:\.Home\BJWDOCS\NARDd\Giant Litigation \Complaint.wpd Mr. Leon S. Gehman Ms. Anna H. Gellman 1648 Nolt Road Mount Joy, PA 17552 CUNNINGHAM & CHERNICOFF, P.C. By Julieanne Ametrano 2320 North Second Street Harrisburg, PA 17110 Telephone: (717)238-6570 LOUDOUN CENTRE, LLC, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO: 14-1217 GIANT FOOD STORES, INC., a Delaware corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and ANNA H. GEHMAN, Defendants es• -T1 - =rn ;t3 -vr JURY TRIAL DEMANDED 3, .< -. PRAECIPE Kindly append the attached Verification to the Complaint filed in the above-referenced matter on April 11, 2014. Respectfully su Date: April L3. 2014 By: rue;. Warsha PA Supreme Co Robert E. Chem PA Supreme CUNNING 2320 North e : 58799 squire D No: 23380 & CHERNICOFF, P.C. econd Street Harrisburg, PA 17110 Telephone: (717) 238-6570 CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant for the law office of Cunningham & Chernicoff, P.C., do hereby certify that a true and correct copy of the PRAECIPE in the above - captioned matter was sent first class U.S. Mail to the following: Helen L. Gemmill, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 Date: April � # , 2014 F:\Home\BJW\DOCS \NARDO \Giant Litigation\Praecipe. d Mr. Leon S. Gehman Ms. Anna H. Gehman 1648 Nolt Road Mount Joy, PA 17552 CUNNINGHAM & CHERNICOFF, P.C. B Julieanne Ametrano 2320 North Second Street Harrisburg, PA 17110 Telephone: (717)238 -6570 EXHIB T A VERIFICATION I, Frank A. Nardo, Authorized Representative of Loudon Centre, LLC hereby verify that the statements made in the foregoing Complaint are true and correct based on my personal knowledge or upon 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: : j /Q- /./ F:'Home\BJW \DOCS\NARDO1Giant Litigation \VERIFication.wpd LVANIA LOUDOUN CENTRE, LLC, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. GIANT FOOD STORES, INC., a Delaware Corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and ANNA H. GEHMAN, Defendants : No. 14-1217 NOTICE TO PLEAD To: LOUDOUN CENTRE, LLC, and its counsel. You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. McNEES WALLACE & NURICK LLC By Helen L. Gemmill, I.D. No. 60661 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17101-1166 Tel. 717-237-5273; Fax 717-260-1697 hgemmill@mwn.com Dated: May 14, 2014 Attorneys for Defendant Giant Food Stores, LLC LOUDOUN CENTRE, LLC, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. GIANT FOOD STORES, INC., a Delaware Corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and ANNA H. GEHMAN, Defendants : No. 14-1217 ANSWER OF DEFENDANT GIANT FOOD STORES, LLC Defendant Giant Food Stores, LLC ("Giant"), for its answer to the complaint of Plaintiff Loudoun Centre, LLC ("Loudoun"), states as follows: Answer 1. Admitted upon information and belief. 2. Admitted. Further answering in response to footnote 1, Giant Food Stores, LLC is the successor by merger to Giant Food Stores, Inc. Specifically, Giant Food Stores, LLC is the surviving entity of the merger between Giant Food Stores, LLC and Giant Food Stores, Inc. effective November 4, 2000. Thus, as of November 4, 2000, Giant Food Stores, Inc. ceased to exist as a separate entity. 3. Admitted upon information and belief. 4. Admitted upon information and belief. 5. Giant admits that Loudoun is asserting a claim for breach of contract in this action. Giant denies that it breached any contracts with Loudoun. Giant admits that jurisdiction and venue are proper in this judicial district. 6. Admitted with qualification. The Lease attached to the Complaint as Exhibit A (the "Lease" or "Master Lease"), being a writing, speaks for itself in its entirety. 7. Admitted with qualification. The Sublease attached to the Complaint as Exhibit B (the "Sublease"), being a writing, speaks for itself in its entirety. 8. Admitted with qualification. The Agreement of Sale attached to the Complaint as Exhibit C-1 and the Special Warranty Deed attached to the Complaint as Exhibit C-2, being writings, speak for themselves in their entirety. 9. Admitted with qualification. The Agreement dated July 26, 2012, attached to the Complaint as Exhibit D (the "July 26, 2012 Agreement"), being a writing, speaks for itself in its entirety. 10. Admitted with qualification. The July 26, 2012 Agreement, being a writing, speaks for itself in its entirety. Further answering, Loudoun's claims in its Complaint are not claims under the indemnification provision of ¶ 3(c) of the July 26, 2012 Agreement. 11. Denied. The Lease, being a writing, speaks for itself in its entirety. Further answering, the Lease was terminated by the July 26, 2012 Agreement. All claims asserted in the Complaint by Loudoun against Giant were released by the July 26, 2012 Agreement. 12. Denied. The Sublease, being a writing, speaks for itself in its entirety. Further answering, the Lease was terminated by the July 26, 2012 Agreement. All claims asserted in the Complaint by Loudoun against Giant were released by the July 26, 2012 Agreement. 2 13. Denied. Upon reasonable investigation, Giant is without knowledge or information sufficient to form a belief as to the truth of the averments that Loudoun performed an audit and calculated the amounts contained in ¶ 13 of the Complaint, and therefore Giant denies the averments. Giant denies that any obligations or sums are owed by Giant to Loudoun. 14. Denied. Giant is not responsible for any of the obligations or amounts that Loudoun avers are owed. WHEREFORE, Defendant Giant Food Stores, LLC requests that judgment be entered against Plaintiff and in favor of Giant on all claims, and that Giant be awarded its costs and such other relief as this Court deems just and appropriate. New Matter 15. The Complaint seeks payment from Giant for costs of common area maintenance, administration, operations, taxes and insurance, which were accrued during time periods dating back to June 30, 2005. Complaint at Exhibit E. 16. Section 1003 of the Lease provides in part as follows: Within sixty (60) days after the end of Landlord's [Loudoun's] fiscal year, Landlord will deliver to Tenant [Giant] a statement showing in reasonable detail Tenant's proportionate share of such Costs of Operation and Maintenance. Complaint, Exhibit A at p. 9. 17. Loudoun did not provide to Giant a statement showing the Costs of Operation of Maintenance sought in Loudoun's Complaint within 60 days after the end of each of Loudoun's applicable fiscal years. 18. The first time that Loudoun provided to Giant a statement showing any of the Costs of Operation and Maintenance sought in Loudoun's Complaint was by letter dated October 29, 2013. A true and correct copy of the October 29, 2013 letter is attached hereto as Exhibit 1. 3 19. Section 1003 of the Lease also provides in part as follows: The statement submitted by Landlord shall be accompanied by evidence of the aforesaid actual Costs of Operation and Maintenance reasonably satisfactory to Tenant. Complaint, Exhibit A at p. 9. 20. The statement provided with the October 29, 2013 letter was not accompanied by any evidence of the actual Costs of Operation and Maintenance. 21. Section 1104 of the Lease provides in part as follows: Landlord shall render a bill for Tenant's tax increase after the end of the lease year for which it is payable. At the time of rendering such bill, Landlord shall submit to Tenant a true copy of the tax bills and facts and information needed to calculate Tenant's tax increase; provided however that Landlord shall give Tenant written notice of the amount which will be billed at the time aforesaid within ten (10) days after receipt by Landlord of the tax bills from the taxing authorities. Complaint, Exhibit A at p. 11. 22. The first time that Loudoun provided to Giant a statement showing any of the taxes sought in Loudoun's Complaint was by the letter dated October 29, 2013 attached hereto as Exhibit 1. 23. The statement provided with the October 29, 2013 letter was not accompanied by any copies of the tax bills and facts and information needed to calculate Tenant's tax increase. 24. Section 2101(d) of the Lease provides in part as follows: Tenant shall pay Tenant's insurance increase within fifteen (15) days after receipt of bill [sic] therefore from Landlord accompanied by a true copy of Landlord's insurance bills and the facts and information needed to calculate Tenant's insurance increase. 25. The first time that Loudoun provided to Giant a statement showing any of the insurance amounts sought in Loudoun's Complaint was by the letter dated October 29, 2013 attached hereto as Exhibit 1. 4 26. The statement provided with the October 29, 2013 letter was not accompanied by any copies of the insurance bills and facts and information needed to calculate Tenant's insurance increase. 27. Paragraph 2(a) of the July 26, 2012 Agreement provides that: As between Master Landlord [Loudoun] and Giant, the Master Lease is hereby terminated. Complaint, Exhibit D, ¶ 2(a) at p. 3. 28. Paragraph 3(b) of the July 26, 2012 Agreement provides that: Subject to subsection (c) below, Master Landlord [Loudoun] hereby releases Giant, from any and all claims and liabilities arising out of the Master Lease. Complaint, Exhibit D, ¶ 3(b), at p. 3. 29. Paragraph 3(c) of the July 26, 2012 Agreement provides that: Giant hereby agrees to indemnify Master Landlord against, and hold Master Landlord harmless from, any and all suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys' fees and disbursements) which Master Landlord may sustain or incur, arising out of, in connection with or by reason of, Giant's failure to observe, perform or comply with any of its obligations as sublessor under the Sublease prior to the Effective Date. Complaint, Exhibit D, ¶ 3(c) at p. 3 (emphasis added). 30. The Complaint asserts that Giant failed to comply with Giant's alleged obligations to Loudoun to pay common area maintenance, administration, operations, taxes and insurance amounts under the Lease. 31. The Complaint does not allege any failure by Giant to observe, perform or comply with any of its obligations as sublessor under the Sublease. 32. Accordingly, Loudoun's claims in its Complaint are not claims asserted under the indemnification provisions of ¶ 3(c) of the July 26, 2012 Agreement. 5 33. For the period of June 30, 2005 through the termination of the Lease by the July 26, 2012 Agreement, Giant paid all amounts for common area maintenance, administration, operations, taxes and insurance for which Giant was given timely notice and could reasonably verify the amounts owed. 34. For the period of June 30, 2005 through the termination of the Lease by the July 26, 2012 Agreement, Loudoun accepted all amounts paid by Giant for common area maintenance, administration, operations, taxes and insurance. 35. For the period of June 30, 2005 through the termination of the Lease by the July 26, 2012 Agreement, Loudoun did not contest, object to, or contend as insufficient the amounts paid by Giant for common area maintenance, administration, operations, taxes and insurance. 36. Loudoun's claims are barred by the statute of limitations. 37. Loudoun's claims are barred by the doctrine of laches. 38. Loudoun's claims are barred by the release set forth in the July 26, 2012 Agreement. 39. Loudoun's claims are barred by accord and satisfaction. 40. Loudoun's claims are barred by estoppel. 41. Loudoun's claims are barred by Giant's payments. 42. Loudoun's claims are barred by the statute of frauds. 43. Loudoun's claims are barred by waiver. 44. To the extent that Loudoun's claims are based on oral agreements not reflected in the written Lease, Sublease or July 26, 2012 Agreement, Loudoun's claims are barred by the parol evidence doctrine. 6 WHEREFORE, Defendant Giant Food Stores, LLC requests that judgment be entered against Plaintiff and in favor of Giant on all claims, and that Giant be awarded its costs and such other relief as this Court deems just and appropriate. McNEES WALLACE & NURICK LLC By /.� L Helen L. Gemmill, I.D. No. 60661 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17101-1166 Tel. 717-237-5273; Fax 717-260-1697 hgemmill@mwn.com Dated: May 14, 2014 Attorneys for Defendant Giant Food Stores, LLC 7 VERIFICATION Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities, I hereby certify that I am authorized to make this verification on behalf of Giant Food Stores, LLC, that I have reviewed the foregoing and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. GIANT FOOD STORES, LLC By,', Printed Name WER9y e. Eck( Title WIACA--11- ) (2CA/1- Dated: May 3 , 2014 NOV 5 2013 NO -'- October 29, 2013 To All Tenants, It was brought to my attention that incorrect information was used by those who previously managed and administered the operations of the shopping center. Therefore, I ordered an in depth audit and complete accounting of the financials of the center from the date of purchase until August 31, 2013. Enclosed are the results of that audit, of which the predominance is percentage based. The water and sewer portions, which are predominantly usage based, will be forthcoming. If the shopping center owes you a credit, you will receive a check by mail within 30 days. If you have a balance due, please remit payment to Loudoun Centre, LLC c/o Integrity Bank, with the mailing address of 3345 Market St, Camp Hill, PA 17011. I apologize in advance for any inconvenience this may cause, however, I am sure you want this corrected, as do I. Going forward from August 31, 2013, there should be no confusion. If you have any questions or concerns, please contact Gerry Sallavanti at 717-533-1216 or via email at gsallavanti@aol.com. Sincerely, es A. Nardo oudoun Centre, LLC P.O. Box 442 HERSHEY PA, 17033 PHONE: 717.33. (216 LOUDOUN TENANT PAYMENTS - GIANT RENT TAXES CAM 6/30/05 - 8/31/07 $ 379,816.58 73,409.16 32,060.82 9/1/07 -10/31/07 29,216.66 27,831.17 12,843.15 11/01/07 - 2/28/08 58,433.32 -0- 5,341.39 3/1/08 - 7/31/08 73,041.65 8,776.48 11,566.05 8/1/08 - 7/31/12 701,200.06 82,413.64 111,546.43 8/1/12 -11/30/12 -0- -0- -0- 12/1/1.2 -8/31/13 -0- -0- -0- TOTALS PAID $ 1,241,708.27 192,430.45 173,357.84 LOUDOUN EXPENSES 6/30/05-8/31/07 — PERIOD 1 Lot Sweep $ 8,626.90 Lot Stripe -0- Landscape 4,866.60 Fire Monitor/Fire Phone 4,004.74 Inspections 463.22 Lot Lighting/Signage 6,509.08 Electric -Utility -0- Insurance 12,963.98 Trash 504.94 Snow Removal 38,221.20 General Prop. Main./Repairs -0- Roof Repair 5,534.97 Plumbing Repair 6,321.53 Electrical Repair 822.58 Parking Lot Repair 131.31 Cleaning/Power Washing 450.00 Admin Fee 38,671.93 Operations 45,537.12 Taxes 168,391.81 LOUDOUN EXPENSES 9/1/07-10/31/07 — PERIOD 2 Lot Sweep $ 680.00 Lot Stripe -0- Landscape 361.66 Fire Monitor/Fire Phone 323.44 Inspections -0- Lot Lighting/Signage 834.54 Electric -Utility -0- Insurance 1,274.48 Trash 85.67 Snow Removal -0- General Prop. Main./Repairs -0- Roof Repair -0- Plumbing Repair -0- Electrical Repair -0- Parking Lot Repair -0- Cleaning/Power Washing -0- Admin Fee 533.97 Operations 2,695.53 Taxes -0- LOUDOUN EXPENSES 11/1/07-2/28/08 — PERIOD 3 Lot Sweep $ 1,824.00 Lot Stripe -0- Landscape 1,116.15 Fire Monitor/Fire Phone 648.18 Inspections 100.00 Lot Lighting/Signage 2,598.73 Electric -Utility -0- Insurance 3,149.04 Trash 184.15 Snow Removal 3,228.20 General Prop. Main./Repairs -0- Roof Repair 662.70 Plumbing Repair -0- Electrical Repair -0- Parking Lot Repair -0- Cleaning/Power Washing -0- Admin Fee 4,079.75 Operations 6,265.58 Taxes 13,687.21 LOUDOUN EXPENSES 3/1/08-7/31/08 — PERIOD 4 Lot Sweep $ 960.00 Lot Stripe -0- Landscape 542.49 Fire Monitor/Fire Phone 820.06 Inspections 250.50 Lot Lighting/Signage 1,742.94 Electric -Utility -0- Insurance 1,507.01 Trash 261.01. Snow Removal 1,414.00 General Prop. Main./Repairs 1,393.62 Roof Repair 562.13 Plumbing .Repair -0- Electrical Repair -0- Parking Lot Repair -0- Cleaning/Power Washing -0- Admin Fee 8,832.26 Operations 9,901.17 Taxes 49,428.00 LOUDOUN EXPENSES 8/1/08 - 7/31/12 — PERIOD 5 Lot Sweep $ 10,248.00 Lot Stripe -0- Landscape 13,839.51 Fire Monitor/Fire Phone 3,157.33 Inspections 2,020.00 Lot Lighting/Signage 10,100.18 Electric -Utility -0- Insurance 34,149.15 Trash 2,036.28 Snow Removal 55,640.00 General Prop. Main./Repairs -0- Roof Repair 1,869.51 Plumbing Repair 985.00 Electrical Repair 1,209.45 Parking Lot Repair 2,000.00 Cleaning/Power Washing -0- Admin Fee 91,708.67 Operations 141,818.79 Taxes 465,086.71 Tax Appeal 9,050.00 LOUDOUN EXPENSES 8/1/12-11/30/12 — PERIOD 6 Lot Sweep $ -0- Lot Stripe -0- Landscape 2,316.00 Fire Monitor/Fire Phone 266.18 Inspections -0- Lot Lighting/Signage 685.22 Electric -Utility -0- Insurance 4,576.59 Trash -0- Snow Removal -0- General Prop. Main./Repairs -0- Roof Repair -0- Plumbing Repair -0- Electrical Repair -0- Parking Lot Repair -0- Cleaning/Power Washing -0- Admin Fee 1,176.60 Operations 9,609.32 Taxes -0- LOUDOUN EXPENSES 12/1/12 — 8/31/13 — PERIOD 7 Lot Sweep $ -0- Lot Stripe -0- Landscape 3,474.00 Fire Monitor/Fire Phone 616.59 Inspections -0- Lot Lighting/Signage 1,881.50 Electric -Utility -0- Insurance 6,775.66 Trash -0- Snow Removal 5,020.00 General Prop. Main./Repairs -0- Roof Repair 2,207.50 Plumbing Repair -0- Electrical Repair -0- Parking Lot Repair -0- Cleaning/Power Washing -0- Admin Fee 8,261.86 Operations 9,854.20 Taxes 35,103.82 LOUDOUN TAXES 2005 County/Mun. $ 4,586.75 School 45,264.24 Total 49,850.99 2006 County/Mun. 13,081.83 School 45,264.24 Total 58,346.07 2007 County/Mun. 13,413.47 School 46,781.28 Total 60,194.75 2008 County/Mun. 13,687.21 School 49,428.00 Total 63,114.21 TAX U1/GIANT U2/CVS U3/GEORGES 2009 County/Mun. $ 8,196.14 17,230.50 382.90 School 30,588.32 64,305.00 1,429.00 Hydrant 225.50 81.43 6.26 Totals 39,009.96 81,616.93 1,818.16 2010 County/Mun. 8,986.00 18,891.00 School 31,465.94 66,150.00 Totals 40,451.94 85,041.00 2011 County/Mun. 7,021.84 15,989.64 School 25,114.75 57,189.60 Totals 32,136.59 73,179.24 411.10 1,470.00 1,881.10 333.68 1,216.80 1,550.48 2012 County/Mun. 7,231.70 16,467.53 3 50.3 7 School 25,364.50 57,758.30 1,228.90 Totals 32,596.20 74,225.83 1,579.27 2013 County/Mun. 8,117.15 -0- 393.27 School 25,364.50 -0- 1,228.90 Totals 33,481.65 -0- 1,622.17 LOUDOUN CENTRE AUDIT Purchased: 6/30/2005 Total Due: 268,049.11 Shopping Centre Expenses Gehman/Giant Period #1 Tenants: 6/30/2005 thru 8/31/2007 (26 mos.) S.C. sq. ft. at purchase = 59,470 sq. ft. Period #1 Period #1 I.xpeiise PAID Balance 1. Giant 37,280 sq. ft. 63% Rent: 379,816.58 379,816.58 0 2. CVS 10,000 sq. ft. 17% Taxes: $ 168,391.81 Taxes: 106,086.84 73,409.16 32,677.68 3. Dillsburg Flooring 4,000 sq. ft. 7% Ins. 5 12,963.98 Ins. 8,167.31 8,161,31 4. Coco's Pizza 2,640 sq. ft. 4% CAM: $ 76,457.07 CAM: 48,167.95 32,060.82 16,107.13 5. George's 2,250 sq. ft. 4% Admin: 5 38,671.93 Admin: 24,363.32 74,363.37 6. Vacant 3,300 sq. ft. 6% Operations: 5 45,537.12 Operations: 27,111.93 27,111.93 R/e Base: Credit 19,1/2.16 Period #2 9/1/2007 thru 10/31/2007 (2 mos.) Period #2 Period #2 Tenants: S.C. sq. ft. after demo #1 = 53,530 sq. ft. Expense PND Balance 1. Giant 37,280 sq. ft. 70% Rent: 29,216.67 29,216.66 0 2. CVS 10,000 sq. ft. 19% Taxes: $ - Taxes: 0.00 27,831.17 27,831.17 3. Dillsburg Flooring 4,000 sq. ft. 7% Ins. $ 1,274.48 Ins. 892.14 892.14 4. George's 2,250 sq. ft. 4% CAM: $ 2,285.31 CAM: 1,599.72 12,843.15 11,243.43 Admin: $ 533.97 Admin: 373.78 373.78 Operations: 5 2,695.53 Operations: 1,585.43 1,585.43 R/c Base: Credit Period #3 11/1/2007 thru 2/28/2008 (4 mos.) Period #3 Period #3 Tenants: S.C. sq. ft. after Demo #2 = 52,336 sq. ft. expense pAip Balance 1. Giant 37,260 sq. ft. 71% Rent: 58,433.33 58,433.32 0 2. CVS 10,000 sq. ft. 19% Taxes: 5 13,687.21 Taxes: 9,717.92 0 9,717.92 3. Dillsburg Flooring 4,000 sq. ft. 8% Ins. $ 3,149.04 Ins. 2,235.82 7,235.82 4. George's 1,056 sq. ft. 2% CAM: 5 10,362.11 CAM: 7,357.10 5,341.39 2,015.71 Admix: 5 4,079.75 Admin: 2,896.62 2,896.62 Operations: $ 6,265.58 Operations: 3,887.21 3,887.21 R/e Base: Ciedir Period #4 3/1/2008 thru 7/31/2008 (5 mos.) Period #4 Period #4 Tenants: S.C. sq. ft. after Demo #3 = 48,336 sq. ft. expense PAID Balance 1. Giant 37,280 sq. ft. 77% Rent:73,041,67 73,041.65 0 2. CVS 10,000 sq. ft. 21% Taxes: $ 49,428.00 Taxes: 38,059.56 8,776.48 29,283.08 3. George's 1,056 sq, ft. 2% Ins. $ 1,507.01 Ins, 1,160.40 1,160.40 CAM: 5 7,946.75 CAM: 6,119.00 11,566.05 5,447.05 Admin: $ 8,832.26 Admin: 6,800.84 6,800.84 Operations: $ 9,901.17 Operations: 5,919.03 5,919.03 R/e Base: Credit 9,586.08 Period #5 8/1/2008 thru 7/31/2012 (48 mos.) Period #5 Period #5 Tenants: S.C. sq. ft. after Demo #4 = 51,561 sq. ft. gpplxlse PAID Balance 1. Giant 37,280 sq. ft. 72% Rent: 701,199.84 701,200.06 0.22 2. CVS 13,225 sq. ft. 26% Taxes: $ 474,136.71 Taxes: 147,218,69 82,413.64 64,805.05 3. George's 1,056 sq. ft. 2% Ins. $ 34,149.15 Ins. 24,587.39 24,587.39 CAM: $ 103,105.26 CAM: 74,235.79 111,546.43 37,310.64 Admin: $ 91,708.67 Admin: 36,906.28 36,906.28 Operations: $ 141,818.79 Operations: 47,362.09 47,362.09 R/e Base: Credit 38,344.32 Period #6 8/1/2012 thru 11/30/2012 (4 mos.) Period #6 Period #6 Tenants: S.C. sq. ft. after Giant exit = 51,561 sq. ft. f xpense PAIN Balance 1. Gehman 37,280 sq. ft. 72% Rent: 58,433.32 58,405.32 28.00 2. CVS 13,225 sq. ft. 26% Taxes: $ - Taxes: 3. George's 1,056 sq. ft. 2% Ins. 5 4,576.59 Ins. 3,295.14 3,295.14 CAM: $ 3,267.40 CAM: 2,352.53 567.13 1,785.40 Admix: $ 1,176.60 Admix: 847.15 847.15 Operations: $ 9,609.32 Operations: 3,204.05 3,704.05 Hie Base C,edn Period #7 12/1/2012 thru 8/31/2013 (9 mos.) Period #7 Period #7 Tenants: S.C. sq. ft. after CVS exit = 38,336 sq. ft. I:xpcn,e PAID Balance 1. Gehman 37,280 sq. ft. 97% Rent: 131,475.00 131,411.97 63.03 2. George's 1,056 sq. ft. 3% Taxes: $ 35,103.82 Taxes: 33,481.65 0 33,481.65 ins. $ 6,//6.66 Ins. 6,572.39 6,572.39 CAM: 5 13,199.59 CAM: 12,803.60 1,511.59 11,297.01 Admin: $ 8,261.86 Admin: 7,928.65 7,928.65 Operations: $ 9,854.20 Operations: 9,216.63 9,216.63 8/e Rase: Credit 9,586.08 Total Due: 268,049.11 CERTIFICATE OF SERVICE I certify that I served a true and correct copy of the foregoing document by first class United States mail, postage prepaid, upon the following: Dated: May 14, 2014 Bruce J. Warshawsky, Esquire Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 Counsel for Plaintiff Loudoun Centre, LLC Mark D. Bradshaw, Esquire Stevens & Lee PC 17 N Second St 16th Floor Harrisburg, PA 17101 Counsel for Defendants Leon S. Gehman and Anna J. Gehman (Appearance not yet entered) Leon S. Gehman 1648 Nolt Road Mount Joy, PA 17552 Defendant Anna J. Gehman 1648 Nolt Road Mount Joy, PA 17552 Defendant Helen L. Gemmill LOUDOUN CENTRE, LLC : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. GIANT FOOD STORES, INC., A DELAWARE CORPORATION, GIANT FOOD STORES, LLC, LEON S. GEHMAN AND ANNA H. GEHMAN, Defendants : No. 14-1217 NOTICE TO PLEAD TO: Plaintiff, Loudoun Centre, LLC c/o Bruce Warshawsky, Esquire Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 You are hereby notified to file a written response to the enclosed new matter within twenty (20) days from service hereof or a judgment may be entered against you. Date: May 15, 2014 By: SL 1 1302767v1 103739.00002 Mark D. Bradshaw, Esquire Attorney I.D. No. 61975 17 North Second Street, 16th Floor Harrisburg, PA 17101 Tel: (717) 255-7357 Fax: (610) 371-7362 Email: mdb@stevenslee.com Attorneys for Leon S. and Anna H. Gehman, Defendants LOUDOUN CENTRE, LLC : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : No. 14-1217 GIANT FOOD STORES, INC., A DELAWARE CORPORATION, GIANT FOOD STORES, LLC, LEON S. GEHMAN AND ANNA H. GEHMAN, Defendants GEHMAN DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW COME Leon S. and Anna H. Gehman, by and through their counsel, Stevens & Lee, and make the following Answer With New Matter To Plaintiff's Complaint, stating in support thereof as follows: 1. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted. 4. It is admitted only that Loudoun is currently the owner of a certain building located at 121 Gettysburg Pike, Upper Allen Township, Cumberland County, Pennsylvania. 5. Denied. Plaintiff's characterization of this action requires no response, and any allegation of any breach by the Gehmans is specifically denied. 6. Denied. The averments of Paragraph 6 are directed to a Defendant other than Answering Defendants Gehman, who were not involved in the transaction described in Paragraph 6, and, consequently, make no response to these allegations. 7. Admitted. 8. Admitted upon information and belief. 2 SL 1 1302767v1 103739.00002 9. Denied as stated. The July 26, 2012 Agreement is a writing which speaks for itself, and Plaintiff's characterization of the same requires no response. 10. Denied as stated. The July 26, 2012 Agreement is a writing which speaks for itself, and Plaintiff's characterization of the same requires no response. 11. Denied. The averments of Paragraph 11 are directed to a Defendant other than Answering Defendants Gehman, who were not involved in the Lease defined in Paragraph 6 and described in paragraph 11, and the Gehmans consequently make no response to these allegations. 12. Denied as stated. The July 26, 2012 Agreement is a writing which speaks for itself, and Plaintiff's characterization of the same requires no response. 13. Denied in all respects. The review which Plaintiff apparently engaged in is deliberately mischaracterized in the Complaint as an "audit." To the contrary, no "audit" (as that term would be recognized by anyone familiar with generally accepted accounting principles) has been performed by Plaintiff. Moreover, Plaintiff's calculations are fundamentally flawed, unsupported, and, indeed, contradict the very terms of the applicable documents, including the Lease and Sublease. As a result, the "audit," its processes, and certainly its conclusions, are flawed and entitled to no weight whatsoever. It is specifically denied that the Gehmans owe Plaintiff the amount indicated in Plaintiffs' Complaint (or any amount, for that matter). By way of further answer, much of the sum apparently sought by Plaintiff considerably pre -dates the Gehmans' tenancy. 14. Denied. The averments of Paragraph 14 are denied as both unintelligible and constituting nothing more than legal conclusions requiring no responsive pleading. 3 SL 1 1302767v1 103739.00002 WHEREFORE, Defendants Leon S. and Aim H. Gehman respectfully request judgment in their favor and against Plaintiff, together with costs of this action, and such other and further relief as this Court deems appropriate. NEW MATTER 1. Plaintiff's Complaint fails to state a claim upon which relief can, be granted. 2. Plaintiff's Complaint seeks duplicative recovery of the same sums from both Defendants, arguendo any sum is owed by either. 3. Plaintiff's Complaint ignores or deliberately distorts the operative terms of the agreements in question, including the Lease and the Sublease. - 4. More specifically, Plaintiff, through the artifice of its purported "audit" seeks the recovery of vaguely described and unauthorized expenses supposedly related to "administration" and "operations" as opposed to "actual expenses" (which actual expenses may be otherwise recoverable under the applicable documents including the Lease and the Sublease - absent the material breaches by Plaintiff set forth herein). 5. Plaintiff's purported "audit" also seeks to impose liability upon the Gehmans for "triple net" and common area maintenance charges prior to May 1, 2010, and, in so doing, are entirely baseless. 6. Prior to their entry into the sublease, the Gehmans had no interest in the premises, and certainly no obligation to pay Plaintiff anything. 7. In entering into the sublease, the Gehmans never agreed to stand responsible for any amounts which may have been owed to Plaintiff by any third party. 8. Plaintiff, as the landlord of the premises, is in material default of its duties to the Gehmans as tenants. 4 SL1 1302767v1 103739.00002 9. Among other breaches by Plaintiff as landlord, Loudoun has breached its duty of quiet enjoyment to the Gehmans as tenants. 10. Moreover, contrary to its obligations pursuant to the Lease and the Sublease, Plaintiff Loudoun has breached its obligations to the Gehmans by providing insufficient parking spaces throughout Gehmans' tenancy at Loudoun's facility, and by interfering with the Gehmans' use of the existing parking spaces. 11. Plaintiff Loudoun has breached its obligations to the Gehmans as tenants by neglecting and refusing to engage in adequate repairs at the premises, despite consistent and repeated complaints regarding a badly leaking roof. 12. These breaches are material, and relieve the Gehmans of any and all obligations which they might otherwise have to Plaintiff Loudoun pursuant to the sublease and/or Lease. 13. Much of the amount claimed by Plaintiff Loudoun is barred by Plaintiff's delay in asserting its claims, including applicable statutes of limitation. 14. To the extent applicable, the Gehman defendants incorporate by reference the affirmative defenses pleaded by defendant Giant. 15. Finally, Plaintiff's Complaint purports to include a jury demand, when any such jury demand was expressly waived by Plaintiff in Section 2701 of the applicable Lease. Respectfully submitted, STEVENS & By: 5 SL 1 1302767v1 103739.00002 Mark D. Brads aw, Esquire Attorney I.D. No. 61975 17 North Second Street, 16th Floor Harrisburg, PA 17101 Tel: (717) 255-7357 Fax: (610) 371-7362 Email: mdb@stevenslee.com Attorneys for Leon S. and Anna H Gehman, Defendants 6 SLI 1302767v 1 103739.00002 ELo m V unswor Ma 13 E 4u% HS m; ISPa. M A! ±Eb CERTIFICATE OF SERVICE I, MARK D. BRADSHAW, ESQUIRE, certify that on this date, I served a certified true and correct copy of the foregoing Gehman Defendants' Answer With New Matter To Plaintiff's Complaint upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Date: Jcr— is" SL1 1302767v1 103739.00002 Bruce J. Warshawsky, Esquire Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 Helen L. Gemmell, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 Mark D. Bradshaw, Esquire Vf 11 PENNSYLVANIA LOUDOUN CENTRE, LLC, : Plaintiff v. GIANT FOOD STORES, INC., a Delaware corporation, GIANT FOOD STORES, LLC, LEON S. GEHMAN and ANNA H. GEHMAN, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 14-1217 JURY TRIAL DEMANDED REPLY TO NEW MATTER OF DEFENDANTS LEON S. GEHMAN AND ANNA H. GEHMAN AND NOW, comes the Plaintiff, Loudoun Centre, LLC, by and through its attorneys, Cunningham & Chernicoff, P.C., to Reply to New Matter raised by Defendants Leon S. Gehman and Anna H. Gehman ("Gehman") in the above -captioned case and replies as follows: 1. The averments of this Paragraph are legal conclusions to which no response is required. 2. The averments of this Paragraph are legal conclusions to which no response is required. In an event a response is deemed to be required, it is denied that Plaintiff seeks the recovery and while Plaintiff asserts that the liability, in part, of all Defendants is joint and several, Plaintiff seeks no recovery beyond that to which it is entitled. 3. The averments of this Paragraph are legal conclusions to which no response is required. In an event that a response is deemed to be required, the averments are specifically denied. The Lease and Sublease are documents which speak for themselves and Plaintiff accepts the applicable terms of said documents which establish the liability of the Defendants thereunder. 4. The averments of this Paragraph are specifically denied. It is denied that Plaintiffs Audit and Expense Calculation and Summary is vague or that Plaintiff seeks to recover unauthorized expenses pursuant to the Lease and the Sublease. It is further denied that Plaintiff has not materially breached either the Lease or the Sublease as referenced in the Gehmans' parenthetical in this Paragraph. 5. Admitted in part, denied in part. It is admitted that Plaintiff seeks to impose liability upon the Gehmans for charges prior to May 1, 2010, as the Gehmans have occupied the Leased Premises since prior to June 28, 2005, when Plaintiff became the Landlord. Thus, Plaintiffs claims are proper. By way of further reply, Gehmans subleased the Premises on September 10, 2003. 6. Denied as stated. Gehmans had an interest in the Premises prior to Plaintiffs ownership of the Premises on or about June 28, 2005 and as such, Gehmans are responsible for the payment of all charges pursuant to the Lease and Sublease. 7. Denied as stated. Gehmans, as Sublessee of the Premises, was obligated to the Sublessor/Lessee, Giant Food Stores, LLC, which is turn was liable to the Plaintiff for the expenses claimed and for which recovery is sought in the Complaint. 8. The averments of this Paragraph are legal conclusions to which no response is required. 9. The averments of this Paragraph are legal conclusions to which no response is required. 10. The averments of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed to be required, Plaintiff specifically denies that it has provided insufficient parking spaces to the Gehmans and/or interfered with the Gehmans use of the existing parking spaces. 11. The averments of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed to be required, Plaintiff specifically denies that it has either neglected or refused to engage in adequate repairs at the Premises, including, but not limited to, any issues with the roof It is further denied that Gehmans complained to the Plaintiff about a leaking roof. 12. The averments of this Paragraph are legal conclusions to which no response is required. 13. The averments of this Paragraph are legal conclusions to which no response is required. 14. Plaintiff incorporates by reference its Reply to New Matter of Defendant Giant Food Stores, LLC contemporaneously filed herewith. 15. Plaintiff agrees that the parties waived their rights to a Jury Trial pursuant to Section 2701 of the Lease and is prepared to enter into an appropriate Stipulation withdrawing its Jury Trial Demand. WHEREFORE, Plaintiff, Loudoun Centre, LLC, respectfully requests this Honorable Court award Plaintiff the sum total of $265,841.61 against Gehman and $199,961.09 against Giant plus attorney fees, costs and other just relief to which Plaintiff is entitled, an amount which exceeds the jurisdictional requirements for compulsory arbitration in this judicial district. Respectfully submi Date: June 1 b , 2014 By: Bruce J. shawsky, Esquire PA Supr- e Court ID No: 58799 Robert E. Chernicoff, Esquire PA Supreme Court ID No: 23380 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 VERIFICATION I, James Nardo, Authorized Representative of Loudon Centre, LLC hereby verify that the statements made in the foregoing Reply to New Matter are true and correct based on my personal knowledge or upon 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: 62" W - IL/ F:\Fiome\BJW\DOCS\NARDO\Giant Litigation\verif3.wpd CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant for the law office of Cunningham & Chernicoff, P.C., do hereby certify that a true and correct copy of the REPLY TO NEW MATTER OF DEFENDANTS LEON S. GEHMAN AND ANNA H. GEHMAN in the above -captioned matter was sent first class U.S. Mail to the following: Helen L. Gemmill, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 Date: June /0 , 2014 Mark D. Bradshaw, Esquire Stevens & Lee 17 North Second Street Sixteenth Floor Harrisburg, Pa 17101 CUNNINGHAM & CHERNICOFF, P.C. B Julieanne Ametrano 2320 North Second Street Harrisburg, PA 17110 Telephone: (717)238-6570 F:\Home\BJW\DOCS\NARDO\Giant Litigation\Reply to New Matter of Gehman.wpd J L u, 7 I Clit-ME-1;1,A ND COUNTY PENNS YLV=;NIA LOUDOUN CENTRE, LLC, IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA v. NO: 14-1217 GIANT FOOD STORES, INC., a Delaware corporation, GIANT FOOD • STORES, LLC, LEON S. GEHMAN and : ANNA H. GEHMAN, Defendants JURY TRIAL DEMANDED REPLY TO NEW MATTER OF DEFENDANT GIANT FOOD STORES, LLC AND NOW, comes the Plaintiff, Loudoun Centre, LLC, by and through its attorneys, Cunningham & Chernicoff, P.C., to Reply to New Matter raised by Defendant Giant Food Stores, LLC ("Giant") in the above -captioned case and replies as follows: 15. Admitted in part and denied in part. To the extent that the averments of this Paragraph reference the Complaint, a document, it speaks for itself and the averments are admitted insofar as they are consistent with said document and they are denied insofar as they are inconsistent with said document. 16. Admitted in part and denied in part. The averments of this Paragraph reference a document which speaks for itself. To the extent that the averments are consistent with said document, they are admitted, to the extent that they are inconsistent, they are denied. 4 17. By way of further answer, it is believed and averred that Loudoun's Agent and Property Manager, LMS, provided such information to Giant on a timely and regular basis. 18. By way of further answer, it is believed and averred that Loudoun's Agent and Property Manager, LMS, provided such information to Giant on a timely and regular basis. 19. Admitted in part and denied in part. The averments of this Paragraph reference a document which speaks for itself. To the extent that the averments are consistent with said document, they are admitted, to the extent that they are inconsistent, they are denied. 20. Denied as stated. A letter dated October 29, 2013, attached to Giant's New Matter speaks for itself. It is detailed in Court evidencing Plaintiffs actual costs of operation and maintenance. 21. Admitted in part and denied in part. The averments of this Paragraph reference a document which speaks for itself. To the extent that the averments are consistent with said document, they are admitted, to the extent that they are inconsistent, they are denied. 22. Denied as stated. A letter dated October 29, 2013, attached to Giant's New Matter speaks for itself It is detailed in Court evidencing Plaintiffs actual costs of operation, maintenance and taxes. 23. Admitted. By way of further reply, the tax bills themselves and other information need not be provided by Plaintiff to Giant in connection with the obligations under the Lease. 24. Admitted in part and denied in part. The averments of this Paragraph reference a document which speaks for itself. To the extent that the averments are consistent with said document, they are admitted, to the extent that they are inconsistent, they are denied. 25. Denied as stated. A letter dated October 29, 2013, attached to Giant's New Matter speaks for itself. It is detailed in Court evidencing Plaintiffs actual costs of operation, maintenance and insurance. 26. Admitted. By way of further reply, the insurance bills themselves and other information need not be provided by Plaintiff to Giant in connection with the obligations under the Lease. 27. Admitted in part and denied in part. The averments of this Paragraph reference a document which speaks for itself. To the extent that the averments are consistent with said document, they are admitted, to the extent that they are inconsistent, they are denied. 28. Admitted in part and denied in part. The averments of this Paragraph reference a document which speaks for itself. To the extent that the averments are consistent with said document, they are admitted, to the extent that they are inconsistent, they are denied. 29. Admitted in part and denied in part. The averments of this Paragraph reference a document which speaks for itself. To the extent that the averments are consistent with said document, they are admitted, to the extent that they are inconsistent, they are denied. 30. Admitted in part and denied in part. To the extent that the averments of this Paragraph reference the Complaint, a document, it speaks for itself and the averments are admitted insofar as they are consistent with said document and they are denied insofar as they are inconsistent with said document. 31. Admitted in part and denied in part. To the extent that the averments of this Paragraph reference the Complaint, a document, it speaks for itself and the averments are admitted insofar as they are consistent with said document and they are denied insofar as they are inconsistent with said document. By way of further reply, the obligations of the Sublessee to pay for the costs of operation and maintenance, taxes and insurance are also the obligations of Giant under the various documents which govern the parties relationships. 32. The averments of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed to be required, the averments are denied. By way of further reply, Plaintiff has sufficiently set forth the obligations of Giant to Plaintiff under the Lease and the July 26, 2012 Agreement relative to the Indemnification Provision of Section 3(c) therein as is more specifically set forth in Plaintiffs Complaint. 33. The averments of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed to be required, the averments are denied. While it is true that Giant paid Plaintiff all of the amounts that Plaintiff previously requested for common area maintenance, administration, operations, taxes and insurance, Giant still owes the amounts claimed in the Complaint to Plaintiff pursuant to the Lease, the July 26, 2012 Agreement and the provisions thereunder. 34. The averments of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed to be required, it is admitted that the Plaintiff accepted the amounts paid by Giant for set period of time, however, such acceptance does not denote "acceptance in full" of Giant's obligations. By way of further reply, Giant's obligations to pay Plaintiff for the sums requested in the Complaint are based upon the Lease, the July 26, 2012 Agreement and the various provisions thereunder. 35. The averments of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed to be required, it is admitted that the Plaintiff did not contest, object to or contend as insufficient the amounts paid by Giant for set period of time, however, such acceptance does not denote "acceptance in full" of Giant's obligations. By way of further reply, Giant's obligations to pay Plaintiff for the sums requested in the Complaint are based upon the Lease, the July 26, 2012 Agreement and the various provisions thereunder. 36. The averments of this Paragraph are legal conclusions to which no response is required. 37. The averments of this Paragraph are legal conclusions to which no response is required. 38. The averments of this Paragraph are legal conclusions to which no response is required. By way of further reply, the Release does not exonerate Giant from its obligations under the Lease and the July 26, 2012 Agreement for the reasons set forth in the Complaint. 39. The averments of this Paragraph are legal conclusions to which no response is required. 40. The averments of this Paragraph are legal conclusions to which no response is required. 41. The averments of this Paragraph are legal conclusions to which no response is required. 42. The averments of this Paragraph are legal conclusions to which no response is required. 43. The averments of this Paragraph are legal conclusions to which no response is required. 44. The averments of this Paragraph are legal conclusions to which no response is required. WHEREFORE, Plaintiff, Loudoun Centre, LLC, respectfully requests this Honorable Court award Plaintiff the sum total of $265,841.61 against Gehman and $199,961.09 against Giant plus attorney fees, costs and other just relief to which Plaintiff is entitled, an amount which exceeds the jurisdictional requirements for compulsory arbitration in this judicial district. Respectfully submitted, Date: June 10, 2014 By: ruce J. Warsha sky, Esquire PA Supreme Court ID No: 58799 Robert E. Chernicoff, Esquire PA Supreme Court ID No: 23380 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 VERIFICATION I, James Nardo, Authorized Representative of Loudon Centre, LLC hereby verify that the statements made in the foregoing Reply to New Matter are true and correct based on my personal knowledge or upon 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: 62 -40 — c( F:\Home\BJW\DOCS\NARDO\Giant Litigation\verif3.wpd CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant for the law office of Cunningham & Chernicoff, P.C., do hereby certify that a true and correct copy of the REPLY TO NEW MATTER OF DEFENDANT GIANT FOOD STORES, LLC in the above -captioned matter was sent first class U.S. Mail to the following: Helen L. Gemmill, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 Date: June 10 , 2014 Mark D. Bradshaw, Esquire Stevens & Lee 17 North Second Street Sixteenth Floor Harrisburg, Pa 17101 CUNNINGHAM & CHERNICOFF, P.C. B ulieanne Ametrano 320 North Second Street Harrisburg, PA 17110 Telephone: (717)238-6570 F:\Home\BJW\DOCS\NARDO\Giant Litigation\Reply to New Matter of Giant Foods Stores LLC.wpd LOUDOUN CENTRE, LLC, Plaintiff vs. GIANT FOOD STORES, INC., a Delaware Corporation , GIANT FOOD STORES, LLC, LEON S. GEHMAN and ANNA H. GEHMAN, Defendants TO THE PROTHONOTARY: matter. i:. LEO -OFF 1C:c OF THE PROi'HON0 iAi 2.014 OCT 10 'PH 12: r CUMBERLAND �T�COUNTY N� IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLVANIA NO: 14-1217 PRAECIPE Kindly strike the Jury Trial Demand made by the Plaintiff in the above -referenced Date: October , 2014 CUNNINGHAM & CHERNICOFF, P.C. By : ruc-" Warsha ,P' , Esquire PA Supreme Curt ID No: 58799 2320 North Second Street Harrisburg, PA 17110 (717) 238-6570 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant for the law office of Cunningham & Chernicoff, P.C., do hereby certify that a true and correct copy of the PRAECIPE in the above -captioned matter was sent first class U.S. Mail to the following: Mark D. Bradshaw, Esquire Stevens & Lee, P.C. 17 North Second Street Sixteenth Floor Harrisburg, PA 17101 Date: October 9 , 2014 Helen Gemmill, Esquire McNees, Wallace & Nurick LLC 100 Pine Street Harrisburg, PA 17101 CUNNINGHAM & CHERNICOFF, By: I antal-44.6 ulieanne Ametrano 320 North Second Street Harrisburg, PA 17110 Telephone: (717)238-6570 F:\Home\BJW\DOCS\NARDO\Gehman Sublease\Praecipe to Strike Jury Trial Demand.wpd