HomeMy WebLinkAbout06-3688
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 6& - 3LpY
GIANT FOOD STORES, LLC,
Plaintiff
V.
THE SI VER SPRING DEVELOPMENT,
L.P.
Defendant
NOTICE TO DEFEND
ou have been sued in court. If you wish to defend against the claims set forth in the
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claim or relief requested by the Plaintiff. You may lose money or property or other rights
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OFFICE ET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
717-249-3166
AVISO
U TED HA SIDO DEMANDADO/A en corte. Si usted desea defenderse de ]as
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STED DEBE LLEVAR ESTE DOCUMENTO A SU ABODAGO
IMME IATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A
UNO, AME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE
ENON RAR ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
717-249-3166
McNEES WALLACE & NURICK LLC
By
He /n&LGemm'
I.D. No. 60661
Kandice J. Giurintano
I.D. No. 86345
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff Giant Food Stores, LLC
Dated: J?ne 28, 2006
2
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GI
FOOD STORES, LLC,
CIVIL ACTION - EQUITY
Plaintiff 1
No. o 3 6,
v.
THF SI?VER SPRING DEVELOPMENT,
L.P.
Defendant
COMPLAINT FOR INJUNCTIVE RELIEF
Food Stores, LLC ("Giant") files this Complaint against Defendants THF
Silver S
seeking
Silver S
with Gi
Development, L.P. ("THF") and Sam's East, Inc. t/d/b/a Sam's Club ("Sam's Club")
uitable relief in the form of an injunction preventing THF from leasing a portion of the
Commons Shopping Center to Sam's Club in violation of THF's lease agreement
In support whereof, Giant avers as follows:
The Parties
Giant is a limited liability company organized and existing under the laws of the
State of L
Carlisle,
2.
3.
groceries
4.
Business
with a principal place of business at 1149 Harrisburg Pike, P.O. Box 249,
County, Pennsylvania 17013-0249.
Giant is the successor in interest to Giant Foods Stores, Inc.
Giant's principal business is the operation of supermarkets for the retail sale of
food products.
THF is a limited partnership with a principal place of business at 2127 Innerbelt
Drive, Suite 200, St. Louis, Missouri 63114.
THE is the successor in interest to Eastern Retail Holdings Limited Partnership,
which, ?n turn, was the successor in interest to Silver Spring Center Limited Partnership.
THE is the owner of a parcel of real property located in Silver Spring Township,
County, on which is located, in part, the Silver Spring Commons Shopping Center
(the "Slopping Center").
The Lease Agreement
On May 29, 1992, Giant's predecessor in interest, Giant Food Stores, Inc., entered
into an ?greement to lease a portion of the Shopping Center from THF's predecessor in interest,
Silver Siring Center Limited Partnership (the "Lease Agreement"). A true and correct copy of
the Leas Agreement is attached hereto as Exhibit A.
Following the execution of the Lease Agreement, Giant operated a supermarket
from the Ileased premises (the "Premises").
The Lease Agreement contains a restrictive covenant preventing the landlord
(now THh from leasing any other portion of the Shopping Center to a tenant who intends to sell
operate a supermarket from the leased space (the "Supermarket Restriction").
Section 14.01 of the Lease Agreement states that the landlord:
covenants and agrees that, for the term of this Lease and any
extension thereof, no store(s) and/or building(s), or any part of
same, now or hereafter acquired and/or constructed by Landlord
within the Shopping Center or upon any property within a three (3)
mile distance therefrom (as measured by the shortest driving
distance by automobile from the Premises) in which the Landlord
has an ownership interest shall be used for the sale (at retail or
wholesale), for off-premises consumption of groceries, meats,
fresh fruits, vegetables, frozen foods and deli/bakery products.
Lease Agreement § 14.01.
2
10. The Lease Agreement contained a provision nullifying the Supermarket
if Giant failed to use the Premises as a supermarket for a period in excess of six
See Lease Agreement § 14.01.
The First Amendment to the Lease Agreement
On or about April 24, 2001, Giant discontinued its use of the Premises as a
but continued as the lessee of the Premises and continued to pay rent.
Thereafter, Giant began operating a supermarket in another retail center across the
street from the Shopping Center.
On or about September 20, 2001, Giant entered into a sublease with Marmaxx
Corp. ("Marmaxx") pursuant to which Marmaxx occupies a portion of the Premises.
On or about July 1, 2003, Giant entered into a sublease with A.C. Moore, Inc.
pursuant to which A.C. Moore occupies the remainder of the Premises not leased to
Although Giant has subleased the Premises to tenants, it has remained as the
tenant under the Lease Agreement.
Giant continued to have an interest in the enforcement of the Supermarket
because of its operation of a supermarket in a location nearby the Premises.
On or about September 9, 2003, Giant and Eastern Retail Holdings Limited
Partnership (the successor in interest to Silver Spring Center Limited Partnership and the
in interest to THF) executed the First Amendment to the Lease Agreement (the
"First
A true and correct copy of the First Amendment is attached hereto as
Exhibit B.
18. The First Amendment modified the Supermarket Restriction retroactively to
20, 2001 by nullifying the portion of the restriction that rendered it inoperative in the
event that Giant ceased to use the Premises as a supermarket for a period in excess of six months.
See First Amendment 14.
4. The First Amendment provided that the Supermarket Restriction would remain in
full forge and effect throughout the term of the Lease Agreement. See First Amendment ¶ 4.
The First Amendment also extended the term of the Lease Agreement to
30, 2012. See Lease Agreement 11.
At the time of the execution of the First Amendment, Wal-Mart Stores, Inc.
("Wal-Mart") was operating a store in the Shopping Center, and wished to sell groceries from
that
The First Amendment modified the Supermarket Restriction to permit Wal-Mart
to sell gr?ceries from its facility in the Shopping Center. See First Amendment 15
This exception to the Supermarket Restriction was specific to Wal-Mart, its
and assigns, and did not allow any other exceptions to the Supermarket Restriction.
See First Amendment 115.
THF's Violation of the Supermarket Restriction
Upon information and belief, THE intends to lease a portion of the Shopping
Center to ? am'S East, Inc. t/d/b/a Sam's Club ("Sam's Club").
Sam's Club has filed a conditional use application with Silver Spring Township
seeking p4rmission to operate a facility at the Shopping Center.
Upon information and belief, Sam's Club intends to operate a store at which it will
offer 4 sale groceries, meats, fresh fruits, vegetables, frozen foods and delifbakery products for
consumption.
Sam's Club is a distinct entity from Wal-Mart and is separately incorporated.
Thus, tqe exception to the Supermarket Restriction for Wal-Mart is inapplicable.
If THE allows Sam's Club to use a portion of the Shopping Center for the sale of
groceriels, meats, fresh fruits, vegetables, frozen foods and deli/bakery products for off-premises
THE will be in direct violation of the Lease Agreement and the First Amendment.
Harm and Requested Relief
Giant continues to operate a supermarket near the location of the Premises.
Giant bargained for the Supermarket Restriction in the Lease Agreement and First
If THE allows Sam's Club to use a portion of the Shopping Center for the sale of
groceries) meats, fresh fruits, vegetables, frozen foods and deli bakery products for off-premises
, some Giant customers will shop at the Sam's Club, causing Giant economic loss.
A plaintiff is entitled to injunctive relief where the plaintiffs right to relief is
clear, the need for relief is immediate, and the injury is irreparable if the injunction is not
granted. ee Masure v. Massa, 692 A.2d 1119, 1121 (Pa. Super. 1997).
In this case, Giant's right to relief is clear, as the proposed use by Sam's Club is in
direct violation of the contractual agreements between THE and Giant.
341 The need for relief is immediate, as Giant will begin to suffer losses as soon as
Sam's C14 begins operations.
The impending loss of a business opportunity or market advantage is an
injury. See id. at 1122.
Giant's impending loss of the market advantage for which it bargained is an
injury.
As the damages resulting from this loss of market advantage are not able to be
Giant has no adequate remedy at law.
8. Giant is entitled to an injunction to prevent THE from allowing Sam's Club to use
a portio of the Shopping Center for the sale of groceries, meats, fresh fruits, vegetables, frozen
foods, deli/bakery products for off-premises consumption.
Plaintiff Giant Foods Stores, LLC respectfully requests that the Court
enjoin D?fendant THE Silver Spring Development, L.P. from allowing Sam's East, Inc. t/d/b/a
Sam's C$b to use a portion of the Silver Spring Commons Shopping Center for the sale of
meats, fresh fruits, vegetables, frozen foods and deli/bakery products for off-premises
McNEES W LLACE & NURICK LLC
By
He n L. G 11
I.D. No. 6066
Kandice J. Giurintano
I.D. No. 86345
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff Giant Food Stores, LLC
Dated: JuOe 28, 2006
7172407595 GIANT REAL ESTATE 440 P02 JUN 28 106 10:24
'VERIFICATION
set
Dated:
ect to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to
;, I hereby certify that I am the V >. o f Rea I FsW& Giant Food Stores, LLC. In that
l am authorized to make this Verification on its behalf. I further certify that the facts
in the foregoing document are true and correct to the best of my knowledge or
on and belief.
Giant Food Stores, LLC..( ??
B y L e/Z?'?'-?---
27, 2006 E, Adams
Vice President, Real EsWe
LEASE AGREEMENT
ARTICLE 1. PARTIES
Section 1.01. THIS LEASE, dated the ;LJ day Of May, 1992,
between SILVER SPRING CENTER LIMITED PARTNERSHIP, C/o ASS
DEVELOPMENT COMPANY, its general partner, having an office at 410
Asylum Street, Suite 215, Hartford, Connecticut 06103 (herein-
after called "Landlord"), and GIANT FOOD STORES, INC., a Delaware
corporation, having an office at 1149 Harrisburg Pike, Carlisle,
Pennsylvania 17013 (hereinafter called "Tenant").
W I T N E S S E T H:
Landlord and Tenant covenant and agree as follows:
ARTICLE 2. PREMISES
Section 2.01. Demised Premises. 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 store premises (hereinafter sometimes referred to as
"Premises" or "Demised Premises") to be located in the Silver
Spring Commons Shopping Center (the "Shopping Center") in the
Township of Silver Spring, Cumberland County, Pennsylvania. The
Premises shall contain approximately 53,800 square feet of gross
leasable area and shall be located as outlined and cross-hatched
upon Exhibit "A" attached hereto and made a part hereof, the same
being a site plan of the Shopping Center erected or to be erected
upon the tract of land (hereinafter sometimes referred to as the
"Land") described by metes and bounds in Exhibit "H" attached
hereto and made a part hereof. The said site plan has been
prepared by Hartman 6 Associates, Inc, and is dated November 11,
1991, last revised February 25, 1992.
Section 2.02. Common Areas. Together with the right to the
nonexclusive use, in common with others, of all automobile
parking areas, driveways, footways and other facilities at or
upon the Shopping Center designed for common use, as shall be
installed by Landlord as hereinafter provided and as such facili-
ties may be expanded or diminished, in accordance with Section
8.01 hereof, by Landlord from time to time, together with all the
appurtenances, if any, now or hereafter belonging thereto,
including but not limited to those specifically mentioned in this
Lease and subject to any applicable reciprocal easement agree-
ments or other matters existing of record.
Section 2.03. Shopping Center. Landlord represents and
warrants that the site plan referred to above is a substantially
complete and accurate representation of the buildings, parking
areas, sidewalks, curbs, traffic islands, landscaped areas,
access roads, loading docks, passageways, and other common areas
and facilities, and improvements shown thereon, now completed,
under construction, or currently planned for the Shopping Center,
as well as of the appropriate locations of the permissible
building areas and permissible outparcel(s), if any, noted
thereon. No modifications may be made to said site plan except
as set forth in Section 8.01 hereof.
ARTICLE 3. TE13lI
Section 3.01. 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 flay of a month, the term shall end
at noon on the day before 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. Notwithstanding any provision contained in
this Article to the contrary, all of the terms, covenants and
conditions of this Lease shall be binding upon, and inure to the
benefit of, the parties hereto as of the date of execution of
this Lease.
ARTICLE 4. COMMENCEMENT DATE
Section 4.01. For the purposes of this Lease, and subject
to the provisions of Section 8.05(a), the phrase "Commencement
Date" shall mean the earlier of (i) the date on which Tenant
opens for business in the Demised Premises; or (ii) the next day
after the date on which the last of all the following shall have
occurred or been performed;
(a) Landlord's architect or inspecting engineer shall
have certified to Tenant, in writing, that the common areas of
the Shopping Center are substantially complete in accordance with
plans and specifications approved by Landlord and Tenant as
provided in section 8.01 hereof, except for any work to be done
by Tenant and except that "substantially complete" for purposes
of this subparagraph shall not require the striping of the
parking areas and the landscaping and Landlord may have until
thirty (30) days prior to Tenant opening for business to the
public to complete the striping of the parking areas so long as
such items are not required to be completed in order to obtain a
certificate of occupancy for the Demised Premises (the landscap-
ing shall be completed as soon thereafter as possible subject to
weather conditions);
(b) the Demised Premises have been substantially
completed in accordance with the provisions of this Lease, and
Landlord's architect or inspecting engineer shall have so certi-
fied (for the purposes of this subparagraph, "the Demised Prem-
ises have been substantially completed" shall mean the date on
which the construction trades have substantially completed their
work as required by the plans and specifications approved by
Landlord and Tenant as provided in Article 8 hereof), and the
Demised Premises are ready for the normal conduct of Tenant's
business except for any work and/or installations Tenant has yet
to make;
(c) a temporary or permanent certificate of occupancy
shall have been issued by the appropriate local authority (if a
temporary certificate is issued, then Landlord shall procure a
permanent certificate as promptly as practicable thereafter, but
in any event prior to expiration of the temporary certificate),
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 occu-,
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pied, provid "do Tarrant hae cooperated fully with Landlord in
Landlord's • frts to obtain a certificate of occupancy and
further prov dad that Landlord shall be excused from any duty to
obtain same t the failure to obtain same is caused by any act or
omission of enant or its agents, servants or employees;
(d all utilities shall have been connected to the
building and to the Demised Premises, as required by the plans
and specific tions approved in accordance with Article 8 hereof,
and are in a equate supply and the storm and sewer drainage are
adequate;
(a Tenant shall have received written notice from
Landlord aut orizing Tenant to enter the Demised Premises to
fixture it a d make it ready for the conduct of its business
(hereinafter referred to as "Delivery of Possession"), and Tenant
shall have h d seventy-five (75) days after receipt of said
notice to do said work without substantial interference. By
sending said otice to Tenant, Landlord covenants, represents and
warrants the it has theretofore performed the covenants and
conditions a forth in (b) above and that it will within the
said seventy ive (75) day period complete the performance of the
covenants an conditions set forth above in (a), (c) and (d).
Notwithstandi g the foregoing, if Tenant shall have taken posses-
sion of the mised Premises and commenced Tenant's normal
business open tiona thereon at a date prior to the time when all
of the forego ng shall have occurred, the term of this Lease
shall be deem d to have commenced on such date, but nothing
herein contai ad shall relieve Landlord from its obligations to
complete Land ord's work; Tenant may enter in and upon the
Demised Premi as at any time prior to the commencement of said
seventy-five 75) day period in order to take measurements for
its fixtures nd equipment and to do its other work in the
Demised Premi as; provided, however, that Tenant does not sub-
stantially in erfere with Landlord's work therein, and further
agrees Landlo d shall have no liability to Tenant for damages to
property of T nant except for damages caused by any negligent act
of Landlord o any person or party then acting under the direc-
tion and cont of of Landlord. Notwithstanding the above, should
Landlord be p evented or delayed from completing any of its
required work ereunder by Tenant or because of Tenant's delay or
failure to cc late its work (including Landlord's failure to
obtain a cart icate of occupancy because of such Tenant's
failure or del y) then all rent and additional rent hereunder
shall commence on the 76th day after receipt by Tenant of Land-
lord's notice a above provided.
With n ten (10) days after the commencement Date,
Landlord and T pant shall deliver to each other an agreement
setting forth he Commencement Date, the date of the expiration
of the origins term of this Lease, the dates of the commencement
of the renewal periods, the size of the building on the Premises
and to the ext nt there is any change because of said size, the
minimum annual rent, and the bonus rent volume allowance.
ARTICLE 5. RENEWAL OPTIONS
Section 5 O1. Provided that Tenant is not in default beyond
any applicable cure perlod as provided in this Lease, Tenant
shall have the right, option and privilege of renewing and
extending the arm of this Lease for six (6) additional five (5)
year periods t run consecutively. Tenant's right, option, and
privilege to a tend this Lease shall occur automatically and this
Lease shall be utomatically extended through each option period,
unless terming d at the end of the original term or a renewed
- 3 -
term by noti a to that effect given-by Tenant to Landlord at
least one but dred eighty (180) days prior to the expiration of
the then cur ant term. All of the terms, covenants, and condi-
tions of thi Lease pertaining to the original term hereof shall
equally part in in all respects to all renewals and extensions of
this Lease a cept as otherwise provided in this Lease.
ARTICLE 6. RENT
Section 6.01. Minimum and Bonus Rent. Tenant shall pay
rental to La lord by good check or draft payable to the order of
the Landlord, which may be placed in the United States mail
addressed to andlord at the address above set forth or at such
other place places as Landlord may, by notice in writing to
Tenant from me to time direct, at the following rates and
times:
(a) Mi mum annual rental (hereinafter referred to as
"Minimum Rent ) as follows:
$54 ,994.00 per annum for Lease Years 1
thr ugh 5;
,514.00 per annum for Lease Years 6
ugh 10;
,034.00 per annum for Lease Years 11
ugh 15;
,554.00 per annum for Lease Years 16
ugh 20;
for the first renewal period, if applicable,
$63 ,074.00 per annum for Lease Years 21
thr ugh 25;
for the second renewal period, if applicable,
$65 ,594.00 per annum for'Lease Years 26
thr gh 30;
for a third renewal period, if applicable,
$674 114.00 per annum for Lease Years 31
thr gh 35;
for he fourth renewal period, if applicable,
$695 634.00 for Lease Years 36 through 40;
for he fifth renewal period, if applicable,
$717 154.00 for Lease Years 41 through 45;
and or the sixth renewal period, if appli-
cabl , $738,674.00 for Lease Years 46 through
50.
Said mini
hereinafter pr
ments, in adva
the first rent
the minimum re
that.may be in
lated on the b
month.
been
The
rent, which shall be subject to adjustment as
ad, shall be payable in equal monthly install-
on the first day of each calendar month. On
of the original term, Tenant shall also pay
or any portion of the preceding calendar month
ad in the original term, said rent to be calcu-
of the actual number of days in that calendar
.nimum rent set forth in this Section 6.01 has
on the basis of:
- 4 -
.13 per square foot per year for Lease
ra 1 through 5;
53 per square foot per annum for Lease
e 6 through 10;
93 per square foot per annum for Lease
s it through 15;
.33 per square foot per annum for Lease
rs 16 through 20;
applicable, $11.73 per square foot per
um for Lease Years 21 through 25;
applicable, $12.13 per square foot per
um for Lease Years 26 through 30;
applicable, $12.53 per square foot per
um for Lease Years 31 through 35;
if?applicable, $12.93 per square foot per
nn um for Lease Years 36 through 40;
iflapplicable, $13.33 per square foot per
an um for Lease Years 41 through 45; and
iflapplicable, $13.73 per square foot per
an um for Lease Years 46 through 50;
for the numb r of square feet of building area, as agreed upon by
Tenant and ndlord. If the total area of the building on the
Demised Prem ses as constructed pursuant to the plans and speci-
fications (ale Section 8.04(a)) shall be greater than, or less
than, 53,800 square feet, the said minimum rent shall be adjusted
on said basi J.
(b) Ad tional annual rental (hereinafter referred to as
"Bonus Rent") as follows;
(i) three fourths of one percent (.0075) of the gross
sales (ea her inafter defined) in excess of:
$54 499,400.00 for Lease Years 1 through 5;
$56 651,400.00 for Lease Years 6 through 10;
3.400.00 for Lease Years 11 through 15;
$60 5,400.00 for Lease Years 16 through 20;
'$58 JPhPI7
if licable, $63,107,400.00 for Lease Years
21 ough 25;
if licable, $65,259,400.00 for Lease Years
26 ough 30;
if licable, $67,411,40
0.00 for Lease Years
31 ough 35;
if licable, $69,563,400.00 for Lease Years
36 ough 40;
if licable, $71,715,400.00 for Lease Years
41 ough 45;
5 -
if pplicable, $73,867,400.00 for Lease Years
46 ough s0;
(hereinafter a "Volume Allowance" for each particular period)
made by Taman in, on, or from the Premises in any Lease Year (as
hereinafter d fined) in the original term or any extended term
hereof. In t e event that, by reason of adjustments, the minimum
rental set fo th in Section 6.01(x) hereof shall change, the
Volume Allows ce shall be changed to that number of dollars,
which, when m itiplied by one percent (.01), equals the minimum
rental.
(ii) .For the purpose of this Lease, "Lease Year" shall
mean the firs full 12 calendar months of the term beginning with
the Commencem nt Date, and each succeeding 12-month period. If
this Lease sh 11 begin on a day other than the first day of a
calendar mon , the first Lease Year shall also include the first
partial calm r month of the term.
(iii) Payment of Bonus Rent shall be made no later than
the ninetieth (90th) day after the end of each Lease Year, and on
or before sai date Tenant shall send to Landlord a written
statement car fled as correct by an officer of Tenant showing
the gross sale for the Lease Year just ended. Tenant shall keep
at the Demised Premises or in its main office in Carlisle, Penn-
sylvania, a cc rect record of gross sales, as gross sales are
hereinafter de ined.
(iv) At reasonable times after notice during business
hours of Taman , not more than once annually, Landlord (or its
representative ) shall have the right to inspect and audit said
records, inclu ing but not limited to, all sales records, books
and other reco do pertaining to gross sales in the Premises.
Each statement of gross sales sent to Landlord shall be conclu-
sive and bindi g on Landlord two (2) years after receipt thereof,
and Tenant may destroy such records at the end of said two (2)
years, unless afore the expiration of said two (2) years Land-
lord shall ins act the applicable records and send Tenant written
notice specify ng the claimed inaccuracies. If any audit by
Landlord shall correctly disclose a liability for rent which
exceeds two pe cent (22) of the annual minimum and Bonus Rent
payable for th Lease Year in question, Tenant shall promptly pay
Landlord the r sonable cost of said audit in addition to the
deficiency in ntal. Landlord and its representatives shall
hold in confid ce all information received on any audit except
where required o supply such information to a mortgagee, and/or
a purchaser of a Demised Premises and/or the Shopping center or
where such info ation must necessarily be divulged as a result
of litigation, ncluding, but not limited to, tax abatement
proceedings. L ndlord shall request that any such party receiv-
ing such inform tion hold it in confidence, but Landlord shall
have no liabili y should any such party not do so.
(v) he fact that a part of Tenant's gross sales may
.be payable as r nt hereunder, shall not, nor shall any other
provision of th s Lease be construed to create a co-partnership
or joint ventur by or between Landlord and Tenant, or make
Landlord in any way responsible for debts and/or losses of
Tenant, and Ten nt shall be free to determine and follow its own
business and ea es policies and practices in the conduct of its
business on the Demised Premises.
(vi) he term "gross sales" as used in this Lease shall
mean the total mount received by Tenant (or any subtenant,
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assignee, lit ensee or concessionaire) as a result of sales of all
merchandise old and charges made for services performed in, on,
or from the emised Premises, by whomsoever made or rendered and
whether for ash or on credit, regardless of collections in the
case of the star (and regardless of whether by Tenant or any
subtenants, ssignees, licensees or concessionaires). The fol-
lowing shall be excluded, or deducted, as appropriate, from gross
sales: (1) iscounts, allowances, and refunds (provided the
amount of th same has been included in gross sales), credits for
cancelled as as or for exchanged or returned merchandise; (2)
sales, luxur , excise taxes or other taxes collected by Tenant
from customs s, imposed by and paid over to federal, state or
local gover nt or governmental authority levied in whole or in
part upon th basis of sales made in, on or from the Premises;
(3) receipts rom coin telephones, games, vending machines and
other coin -o rated service facilities and machines, where such
receipts are ncidental to Tenant's business and provided further
that such de ces and vending machines do not occupy more than
500 square fe t of the Premises and are located totally inside
the Premises; (4) sales of trade fixtures or store equipment
after use the eof on the Premises; ,(5) transfers of merchandise
between store of Tenant, provided no such transfer is made to
avoid liabili y for Bonus Rent; (6) sale of gift certificates or
kindred vouch rs (but the redemption of gift certificates shall
be included i gross sales); (7) all sales to employees made at
discount; (S) sales will be reduced by any credits given to
customers in onnection with the issuance and/or redemption of
coupons, trad ng stamps, goods used to redeem coupons or trading
stamps, and o her evidences of value issued as a premium or
discount or o herwise to promote the sales of Tenant, together
with any hand ing costs received therefor; (9) charges paid to
credit card c mpanies; (10) insurance and condemnation proceeds;
(11) all sale from cigarettes and tobacco products; (12) deliv-
ery charges, nd any service rendered at cost, or approximately
at cost, for a convenience of customers; sales of postage
stamps, lotte tickets and any legalized games of chance, fees
from sales of oney orders, fees or commission for collection of
public utilit bills; (13) proceeds for cardboard, cans, bottles,
and similar re eemable items; (14).fees or commissions received
from customer as of an automatic teller banking machine; pro-
vided that Ten nt may not install more than two (2) automatic
teller banking machines and that such machines shall be only
incidental to enant's primary use of the Premises; and (15)
charges, fees, commissions or similar amounts charged for bank-
ing, lending o other financial services, or for professional or
other services (such as real estate brokerage or legal advice).
If, after a or dit sale has been included in gross sales, it is
written off as a bad debt, the unpaid amount of the said credit
sale and finan e, interest and service charges may be deducted
from any state ent of gross sales made after the said unpaid
amount is writ an off as a bad debt, but shall be included again
in later state ents if later collected. In no event may the
amount deducts from any statement of gross sales pursuant to the
preceding sent nce exceed the amount previously included for the
transaction in gross sales.
Section 6.02. operation of Premises. Tenant may elect not
to operate its usiness or may discontinue the operation of the
Demised Premix at any time, except that Tenant covenants and
agrees to open or business to the public as a supermarket under
the trade name t Giant or an affiliate of Giant in the entire
Demised Premise as promptly as possible after Delivery of
Possession. Niise ithstanding the aforesaid, all rental payments
and charges paIs by Tenant pursuant to the terms of any provi-
sions of this (other than Section 6.01(b) ("Bonus Rent") if
- 7 -
Tenant or an permitted subtenant or assignee is not then operat-
ing in the D iced Premises) shall continue to be due and payable
in accordanc with the terms hereof.
If Tana t closes the Demised Premises for business to the
public for a consecutive period in excess of six (6) months, such
closing not o include the following;
(1) an reasornable period during which the Demised Premises
are being al ered, emodeled or renovated;
(2) an period after damage or destruction by fire or other
casualty or Taking (as set forth in Article 23 hereof) prior to
full repair r restoration of the Demised Premises; or
(3) an period during which the use of the Demised Premises
is affected any strike or conditions or causes beyond Tenant's
control, (al of the foregoing periods being herein individually
or collectiv y called "Excused Period")
the and in such event Landlord may, at its option, at
any time afte said six month period, if the Demised Premises
continue to r main closed beyond any Excused Period and if Land-
lord has not eceived written notice that Tenant or Tenant's
assignee or s blesses intends to reopen within ninety (90) days,
terminate thi Lease by thirty (30) days' notice to Tenant.
Tenant may no reopen once Landlord has exercised its right to
terminate. A the and of said thirty (30) days' notice, as
applicable, is Lease shall automatically terminate and there-
after neither party shall have any liability to the other except
for any liabi ities that accrue prior to the termination date.
In the event at Landlord does not-exercise its option to termi-
nate the Leas and Tenant, or Tenant's assignee or sublessee,
thereafter re pens and resumes the conduct of business activities
after being c osed, Landlord shall always have the right to
terminate pro ided herein in the event Tenant or Tenant's
assignee or s blesses is not open for business for a continuous
period of mor than six (6) months, excluding any Excused Period.
ARTICLE 7. LANDLORD TAXES. CHARGES
Section 7.01. All charges on'the Land or improvements and
obligations as ured by mortgage or other lien upon the Premises
and/or the Sho ping center shall be paid by Landlord when due.
Tenant may but need not, upon not less than fifteen (15) days'
notice to Land ord, perform, acquire or satisfy any lien, encum-
brance, agreem t or obligation of Landlord, including underlying
leases and liens for taxes and assessments, which may in Tenant's
reasonable jud ent threaten its quiet enjoyment of the Demised
Premises.
ARTICLE S. CONSTRUCTION
Section 8 ,01. Entire Shoonino.center. Landlord shall
construct the hopping Center substantially in accordance with
the site plan ttached hereto as Exhibit "A" and construction of
the Shopping C ntar pursuant thereto may deviate therefrom only
with the prior itten consent of Tenant. Without limiting the
foregoing, exc t minor changes, modifications or deviations,
which do not a act the visibility of, access to, or the use of
the Demised Pre ises, Landlord shall not submit for approval to
any municipal, tate or other governmental body, any land devel-
opment, subdivi ion or other plans and specifications which
deviate from th site plan attached hereto as Exhibit "A" or from
the plans and s 0 ifications attached hereto as Exhibit "E"
- 8 -
wittkout obta ning the prior written consent of Tenant. Landlord
shall use re aonable efforts to notify Tenant at least seven (7)
days before t submits any plans, applications or other documents
with respect to the site plan to any such governmental body.
Landlord shall deliver a fully engineered final site plan to
Tenant no la or than sixty (60) days after execution of this
Lease.
Section 0.02.
Drawings and ' Landlord shall expedite to the greatest
extent reaso bly possible the preparation of site drawings for
the Shopping enter and architectural drawings for the Demised
Premises, and the receipt of all licenses, permits and other
governmental pprovals for the commencement and completion of
construction n accordance therewith and in conformity with the
provisions of this Lease. A schedule setting forth anticipated
progress date for the preparation of plans and receipt of gov-
ernmental app ovals is attached hereto as Exhibit "C" and made a
part hereof.
Section .03. Building Containina Tenant's Premises. The
architects, a gineers and other consultants to be utilized by
Landlord for a preparation of the plans and specifications for
the building high will contain the Demised Premises must be
experienced i supermarket design and construction and shall be
subject to Te nt'9 prior written approval. Tenant hereby pro-
vides its app val as to the persons and firms listed on Exhibit
"D-1" hereto. Landlord shall construct the building which will
contain the D ised Premises substantially in accordance with the
plans and spec fications therefor as approved by Tenant and
thereafter fil d with, and approved by, appropriate governmental
agencies or officers as required by law.
Section 8L04. Tenant's Premises.
(a) Tenant will furnish Landlord not later than sixty
(60) days afte the date hereof with drawings, specifications,
and other data le includi2! Tenant's current standard prototype
plans and spec fications for a 83,800 square foot building to be
constructed by Landlord, hereinafter called the "Basic Criteria
Specifications (which Basic Criteria specifications are or shall
be more partic arly set forth on Exhibit "D"). Landlord agrees,
at its own exp se, to incorporate Tenant's Basic Criteria speci-
fications into rchtectural plans and specifications for the
Shopping Canter which plans and specifications will be prepared
by a licensed a chitect. Landlord agrees to furnish such plans
and specificati na to Tenant within ninety (90) days after the
date Tenant pro ides all of the Basic Criteria Specifications to
Landlord. Tana t agrees to review the plans and specifications
and, in each ca e, to approve same (to the extent covered by
Tenant's Basic riteria Specifications) or to state what Changes,
11 ey, Tenant equires therein within twenty (20) days after
receipt thereof If Tenant requires any reasonable changes,
Landlord shall ease tha plans and specifications to be revised
in accordance w th the reasonable requirements of Tenant and to
resubmit same t Tenant for Tenant's review within twenty (20)
days after race t Tan changes. The revisions and resub-
missions shall ntinue until Landlord and Tenant shall have
agreed upon the lane and specifications (said approved plans and
specifications b 1ng hereinafter called the "Approved Plans and
specifications") Zt is further agreed that in all instances of
dispute relative to construction of the Demised Premises the
Approved Plans a 0d specifications shall prevail. Landlord shall.
provide Tenant w th three (3) sets of the Approved Plans and
Specifications a td Landlord and Tenant shall execute counterparts
- 9 -
thereof. Approved Plans and Specifications as to the Demised
Premises s all be final and shall not be changed by Landlord
without th prio consent of Tenant, but Tenant shall have the
right to ma a mir nor exterior and interior changes therein.
Tenant may ot, however, make any of the following changes with-
out the con ant oP Landlord: (i) any change to the footprint of
the Demised Premises; (ii) any change which would unreasonably
delay coast etion and completion of the Demised Premises and/or
the ShoppiI Center; or (iii) any change which is not in conform-
ity with Is or with any approvals affecting the Shopping Center
or which wo ld require a variance or similar action or any addi-
tional appr vale by the applicable municipal authorities. If the
cost of con traction of the Demised Premises and the other
gas made on the Premises is increased by any change or chan-
es made by Tenant to the Approved Plans and Specifications, the
Tenant shal pay to Landlord the amount by which the cost of
constructio was increased (including but not limited to the
actual cone ti on costs). The payments to Landlord of the
increased c is of construction as provided herein shall be made
within thirluc
(30) days after receipt by Tenant of written notice
of the incras in cost.
(b Landlord covenants and agrees that upon Tenant's
approval of he Approved Plans and Specifications it shall, in
accordance w th the Approved Plans and Specifications, promptly
commence and with due diligence proceed to construct the Demised
Promises. a conatruction work on the Demised Premises and the
remainder of the Shopping Center shall be done by a licensed
contractor a d shall be done in a good and workmanlike manner in
compliance w th all applicable codes, laws, orders and regula-
tions of all applicable public authorities. Landlord, at its
sole cost an expense, shall cause to be obtained all building
permits, lic sae, temporary and permanent certificates of occu-
pancy and of r governmental approvals which may be required to
permit the c struction of the Demised Premises in accordance
with the Appr vad Plans and Specifications and occupancy thereof
as a supermar et except as hereinafter set forth. Tenant shall
purchase, del ver and locate all of its trade fixtures and equip-
ment in the D mired Premises and Tenant shall be solely respon-
sible for the hook-up thereof. Tenant shall cooperate fully with
Landlord in ndlord?a efforts to obtain a building permit and a
certificate o occupancy and Landlord shall be excused from any
duty to obtai same iP the failure to obtain same is caused by
any act or om :s ion of Tenant or its agents, servants or
employees. foregoing permits to be obtained by Landlord
shall not inc ude permits or licenses required for the installa-
tion and hook p of Tenants trade fixtures and equipment nor
particular li nses or use Permits normally obtained by Tenant
for the condu of its business such as beer licenses, Board of
Health permits and the like.
Section 8.05. Time
(a) IP Landtlord shall not have commenced construction
of the foundat one of he building of which the Demised Premises
is a part ono before the one hundred seventieth (190th) day
after the data Landlord and Tenant have executed this Lease, or
if conditions a) through (e) of Section 4.01 hereof have not
been.complied ith on or before the expiration of fifteen (15)
months after a data of this Lease; then, notwithstanding the
provisions of action 29.01 hereof, Tenant shall have the right
to cancel this are by written notice given within thirty (30)
days after the foregoing dates. Upon the giving of either of
said notices t is Lease shall be deemed cancelled and terminated
- 10 -
and neither arty shall have any further rights or obligations
hereunder.
(b Landlord shall provide Tenant with notice of its
best estimat of'the date when all of the following construction
responsibili ion of Landlord shall be completed (the "Completion
Date"), whic notice shall be provided at least four (4) months
prior to the Completion Date specified in the notice;
(i) Construction of the Demised Premises (except
for Tenant's equipment, fixtures, trade fixtures, furniture and
other work t be done by Tenant), in accordance with the plans
and specific tiona initialed by the parties and attached hereto
or to be att hed hereto as Exhibit "D";
(ii) construction of all parking areas and other
common areas, and all entrances and exits to the Shopping Center,
in accordance with all governmental requirements and the provi-
sions of this Lease; and
iii) Construction of all traffic lights, decelera-
tion lanes, a case roads, utility systems, and other improvements
and facilitie , if any, whether located within the Shopping
Center or out ide of the Shopping Center, and shown on Exhibit
"A" or which ay be required by any governmental entity in con-
nection with a development of the Shopping Center, in accord-
ance with all governmental requirements and the provisions of
this Lease.
(e) The entry of Tenant on the Demised Premises pursu-
ant to Sectio 4.01(e) hereof shall not be deemed to be an accep-
tance of the remises or a waiver of any of Tenant's rights
hereunder.
section .o6. compliance With Laws. Landlord represents,
warrants and venants that at the commencement of the term, the
Demised Premi a will comply with all applicable laws, orders,
ordinances and regulations (except those laws, ordinances and
regulations wh ch are directly related to the installation of
Tenant's trade fixtures and equipment, Tenant's use of the
Demised Premis a or Tenant's business, for which compliance
Tenant shall b solely responsible) and will be suitable for the
purposes for w ich they were let, and will be in good repair
except for any condition owing to the negligence or default of
Tenant.
Section 8 07. Access to and View of Demised Premises.
Landlord agree that the normal flow of pedestrian traffic past
the Demised pr miser and the access to or view of the Demised
Premises from he streets, sidewalks, malls, if any, and parking
areas as shown on Exhibit "A" shall not be obstructed, blocked,
diverted or an bered in any materially adverse way by vending
stands, kiosks, planters, columns, protrusions of adjacent stores
or structures any kind.
ARTICLE 9. ADDDITIDNS
Section 9. 1. En arcement of Demised Premises. Tenant
shall have the ight (but not the obligation), at its expense, to
construct one ( ) addition, up to an additional 9,500 (190 feet
by 50 feet) squ re feet of space, to its demised store building
(hereinafter ca led the "addition") in the area designated
"Expansion Area on Exhibit "A", or any part(s) thereof, in
accordance with plans and specifications prepared by Tenant and
- 11 -
approved by Lan43ordp provided, however, that any such expansion
by Tenant s all at leapt include all additional tenant space that
has been co trotted by Landlord in the Expansion Area. Land-
lord's appr val of same will not be unreasonably withheld or
delayed. S ch Expansion Area shall remain common area, subject
to the nigh of Landlord (pursuant to Section 9.04) to erect
additions o all or any part thereof, until such time as Tenant
shall exerc a its right to erect an addition thereon in accor-
dance with a provisions of this Article. Tenant shall have no
right to er t an addition, or expand into space in the Expansion
Area occupi by other tenants, during the last nine (9) years of
the initial arm or at any time thereafter unless it first shall
commit in wr ting to a sufficient number (one or two, as the case
may be) of f ve (5) year options so that the Tenant will then be
committed to a minimum Lease term of not less than ten (10)
years. Any uch addition, when completely constructed, shall
become part f the Demised Premises and shall be subject to all
of the terms and conditions of this Lease, except that the addi-
tion shall b owned by and shall constitute the property of
Tenant durin the balance of the term of this Lease, including
all renewals and extensions. At the termination of this Lease by
its terms or otherwise, the addition shall be owned by and shall
constitute t s property of Landlord, free and clear of any liens
placed there n by Tenant. Landlord will not be responsible for
defects with respect to the addition resulting from faulty work-
manship or m terials. Tenant, at its expense, shall be respon-
sible for ob aining all necessary authorizations from the govern-
mental autho ities having jurisdiction thareover for the erection
of any addit n, which authorizations Landlord agrees Tenant may
obtain in its name or Landlord's name, and Landlord agrees to
cooperate ful y in obtaining said authorizations. Landlord
covenants the it shall delineate the Expansion Area as an area
of possible c nstruction in all leases (except leases executed
prior to the ate hereof) respecting any portion of the land
described on xhibit "B" and in all plans and drawings submitted
by or on beha f of Landlord with respect to obtaining the neces-
sary authoriz tions from the governmental authorities having
jurisdiction areover for the initial construction of the
improvements hown on Exhibit "A" and, to the extent possible, at
the time Land Ord obtains such authorizations, Landlord will also
obtain author zation for the construction of the addition in the
Expansion Are . Tenant shall have no obligation to remove any
additions, to the extent constructed, upon termination of this
Lease. Durin the course of construction of any such addition by
Tenant, Landl d shall, at Tenant's option, carry casualty insur-
ance on such a dition, in such amounts and in such forms as may
be requested Tenant, naming Tenant as an insured, and Tenant
shall reimburs Landlord for the cost of premiums for said insur-
ance (to the a ant such premiums do not exceed the regular rates
charged for th type of insurance) upon demand; such demand
notice from La dlord shall include an accounting and a copy of
the bill there or showing the amount due. Tenant shall pay to
Landlord any p rtial real estate tax assessments attributable to
such addition uring construction thereof within twenty (20) days
after Tenant i furnished with a bill from Landlord showing the
amount due. I any mechanics' lien should be filed in connection
with the addit on, Tenant will procure its removal or shall bond
same within th rty (30) days after notice thereof from Landlord.
Section 9
commencing con
Article, Tenan
accompanied by
within forty-f
and specificat
12, Construction and Rental Adiustmenta. Before
:ruction of an addition, as provided by this
will give Landlord notice of its intention,
:he plans and specifications for such addition.
re (45) days after Landlord has approved the plans
>ns, Tenant shall submit the plans and specifica-
12
tions to thr a (?) reput Slc contractors for bids. Tenant shall
select tha 1 est responsible bid. The term "Reimbursable Cost"
as used here shall mean all coats, charges, and expenses for
completion o the work in accordance with the plans and specific-
ations, inclu ing, but not limited to: all costs incurred in
renovating or rehabilitating Tenant's existing store building to
make it eompa ible with the addition; architect's and engineer's
fees; the cos of insurance during construction; the cost of
obtaining net ssary governmental approvals; all "soft costs" such
as architect' fees, interim financing; the cost of the purchase
and installat on of all machinery and mechanical equipment (but
not including Tenant's trade fixtures); and any costs incurred
for changes i the scope of the work agreed to by Landlord and
Tenant. "Ad ustment Percentage" shall mean that percentage
which is aqua to the annual constant (principal plus interest)
rate at which Tenant borrows funds for the long-term financing of
the addition lus one percent.(it); provided however that if
Tenant does n t enter into a "permanent" or long-term financing
arrangement t finance the addition, the Adjustment Percentage
shall be the ost favorable annual constant which could have been
obtained had enant sought "permanent" or long-term financing;
provided fur er, however, that the interest rate used in calcu-
lating the Ad stment Percentage shall not exceed the Prime Rate
(as hereinaft defined) plus two percent (2%). For purposes of
this paragrap "permanent" or long-term financing shall mean
financing for term of not less than fifteen (15) years nor more
than twenty- fi a (25) years, and "Prime Rate" shall mean that
rate quoted b The Wall Street Journal as the "Prime Rate" on the
date Tenant cc antes construction of the addition.
Following completion of construction of the addition by
Tenant, Tenant shall provide Landlord with a notice of the Reim-
bursable Cost ncurred-by Tenant. On the date that Tenant sends
such notice to Landlord, the Volume Allowance above which Bonus
Rent is due in Article 6 shall be adjusted upward to a figure
determined in ecordance with the following formula:
Minimum R nt + (The Reimbursable Cost multiplied by
Section 9.03. Early Lease Termination. If this Lease is
terminated pur ant to Article 22 after damage or destruction by
fire or other sualty, or if this Lease is terminated by reason
of condemnation before Tenant shall have been reimbursed the
cost of any add tion in accordance with Section 9.02, in addition
to any other ri hts of Tenant hereunder, the proceeds of any
insurance payab a by reason of such damage or destruction or any
condemnation aw rd for such taking of or damage to the Demised
Premises shall paid directly to Tenant to the extent that
Tenant has not een reimbursed the cost thereof as provided for
in Section 9.02 whether or not said additions or part thereof
are taken by th condemning authority, or whether or not said
additions or pa is thereof are damaged or destroyed. by fire or
other casualty.
Section %04 Expansion Area - Landlord's options. Not-
withstanding provisions of this Article concerning Tenant's
rights to expan the Premises, during the first five (5) years
and six (6) mop s following the Commencement Date of this Lease,
Tenant shall no have the right to expand its Premises into the
Expansion Area. During the aforesaid five (5) year six (6) month
period, Landlor shall have the option to construct and lease
additional-tens space in the Expansion Area, pursuant to plans
and spscificatio s which are to be approved by Tenant, such
- 13 -
approval not
that said pli
as to facili{
as such futui
and lease (or
Expansion Are
Lease unless
six (6) mono
Commencement
expand its at
remainder of
any. Tenant
least six (6)
of the Commer
be unreasonably withheld or delayed, provided
and specifieations'are prepared in such a manner
e the possible future expansion of Tenant's store
expansion is provided for in this Article.
shall also have the continuing option to construct
continue leasing) additional tenant space in the
throughout the term and renewal terms of this
enant shall give Landlord written notice at least
prior to any of the anniversary dates of the
ate hereinafter set forth of Tenant's election to
re operation into the Expansion Area for the
anent's Lease term including renewal periods, if
hall notify Landlord of its election to expand at
months prior to any of the following anniversaries
ement Date:
of Commencement Date -- in years:
15 Anniversary
20t Anniversary
25t Anniversary
Sot Anniversary
35t Anniversary
40t Anniversary
It Tenant elects to expand its store operation into the
Expansion Area on one of the above anniversary dates, and if
Landlord has p eviously constructed any additional tenant space
in the Expansi n Area, in consideration for such improvements
previously mad by Landlord in the Expansion Area, Tenant shall
be obligated f r an additional amount of minimum rent from the
Commencement D to Anniversary on which Tenant elects to expand,
which addition 1 minimum rent shall be determined as follows:
When Land
expand, Landlo
tors (who are
conduct separa
additional ten
Tenant shall s
the average of
value of the a
This fair marks
square foot per
vided, however,
thus determined
per square foot
(ii) in the cgs
occupied, the m
square foot per
additional mini
above which Bon
adjusted upward
the minimum ren
Landlord
(5-1/2) year p
construct the
remains vacant
after its comp
Tenant of such
negotiate for
Ord receives Tenant's notice of election to
t shall immediately engage three commercial real-
Lmiliar with retail commercial real estate) to
o appraisals of the then fair market value of the
t space constructed by Landlord. Landlord and
;h receive a copy of the completed appraisals and
he three shall be considered the fair market
itional tenant space to be occupied by Tenant.
value will be the additional minimum rent per
annum to be paid by Tenant for such space, gro-
in no event will the aforesaid additional rental
be less than the greater of (i) the Minimum Rent
to be paid for the Demised Premises hereunder, or
that said additional tenant space is then
nimum rent then being paid for such space per
annum. In the event Tenant becomes liable for
um rental as aforesaid, the Volume Allowance
a Rent is due as set forth in Article 6 shall be
to a figure, one percent (it) of which will equal
as adjusted.
as that if, during the five and one-half
d following the Commencement Date, it should
tional space above described, and if such space
more than a one (1) year period at any time
on, then Landlord shall immediately notify
t, and Tenant shall have an opportunity to
rental of said space.
- 14 -
ARTICLE 10.
Secti n 10.01. Landlord'a Obligations. Landlord shall
construct t locations as shown on Exhibit "A", substantially in
accordance ith the plans and specifications approved by Landlord
and Tenant nd attached hereto as Exhibit "E", the parking areas,
lighting f ilities, approaches, entrances, exits, sidewalks,
roadways, 1 ading areas and platforms, traffic signals and other
traffic con rol devices, service roads, landscaped areas, drain-
age facilit as, if any, shown thereon, all hereinafter referred
to as "Comm n areas", "common facilities", or "public areas", for
the reasons le operation of the shopping Center and tenant's
business in the Demised Premises, all of which Tenant, its cus-
tomers, sup oyees and all those having business with it, are
hereby gran ad the right to use and enjoy, in common with other
tenants, th it customers, employees, invitees and those having
business wi them and subject to any applicable reciprocal
easement ag eements or other matters existing or record. Land-
lord shall sap and maintain the foregoing in good repair and
condition a d reasonably free of snow, ice, refuse and other
obstruction . Without limiting, the foregoing, Landlord shall
also be res nsible for the maintenance of all traffic control
devices, wh er or not located within the shopping Center,
required by ny governmental agency to be maintained in connec-
tion with Shopping center. Landlord covenants and agrees
that, throug out the term of this Lease the parking areas of the
Shopping Can or shall at all times contain at least five (5)
parking spat a (substantially all of which shall be a minimum
size of ten 10) feet by twenty (20), feet) for each one thousand
(11000) aqua e. feet of gross leasable building floor area in the
Shopping Con or, but no fewer than four hundred thirty four (434)
parking spat s within the cross-hatched area shown on Exhibit
"A". All au h common areas shall throughout the term be reason-
ably paved, triped and all drainage facilities shall be reason-
ably maintai ad, and they and the Demised Premises shall, at all
times, have he means of ingress and egress to and from accepted
highways and ublic streets, substantially as shown on Exhibit
"A" and the idewalks and service roadways shall be connected
thereto, all a substantially shown on Exhibit "A". The parking
areas shall reasonably illuminated for thirty (30) minutes
before (if no assary) and after, and during, the hours Tenant is
open for buss ass (but in no event later than 12:00 p.m.) by the
lighting inst llations to be constructed by Landlord, and there-
after maintai ad by it in good repair and condition. However,
Landlord shal provide separate lighting or lighting controls,
separately me erred, so Tenant may illuminate the parking areas
serving Tenon 's store at its own cost and expense for any period
after 12:00 p m. and before dawn, in case of an emergency or for
other proper urposes. Unless required by applicable law, no
charge shall a made for the entering, exiting, or parking of
vehicles in a Shopping Center.
Section 0.02. Tgnant'e Shae of Costs- For each year of
the term here Ofor any partthererof foram and after the Commence-
ment Date, on monthly basis, Tenant shall pay to Landlord, as
additional re , Tenant's proportionate share of all Costs of
Operation and aintenance ,as hereafter defined) of the common
facilities of he Shopping Center of which the Demised Premises
are a part. T Want's monthly payments shall be as reasonably
determined by ndlord and reasonably agreed to by Tenant.
Within sixty ( O) days after the and of Landlord's fiscal year,
Landlord will aliver to Tenant a statement showing in reasonable
detail Tenant' proportionate share of such Casts of Operation
and Maintenanc , and within thirty (30) days after delivery of
- 15 -
such states nt, Tenant will pay such amounts shown to be due by
said states nt in excess of Tenant's monthly estimated payments,
as addition 1 rent. Should Landlord's statement show that Tenant
paid in exc ss of its proportionate share, Landlord shall credit
Tenant with such excess payments against Tenant's future payments
of its slier of the Casts of Operation and Maintenance or, at
Tenant's op ion, refund such amounts to Tenant within thirty (30)
days of Ten We written request for same. Tenant's monthly
payment for ach ensuing year shall be 1/12th of the total Costs
of Operatio and Maintenance and cost of liability insurance plus
5% for the eceding year. Tenant's proportionate share of the
actual Costs of Operation and Maintenance of the common facili-
ties shall b in the same proportion to the total Costs of Opera-
tion and Mai tenance as the total square footage of gross leas-
able area of the Demised Premises bears to the sum of the total
square foots. a of gross leasable area of all constructed build-
ings (includ ng the Demised Promises) in the Shopping Center.
Landlord agr as to provide Tenant with a current "as built" plot
plan of the hopping Center at the time Landlord forwards
Tenant's ini ial statement of the Costs of Operation and Mainten-
ance. The " s built" plot plan shall be certified by Landlord's
architect, o engineer and shall set forth the total square
footage of g oss leasable space for'all buildings in the Shopping
Center. Lan lord shall only be required to furnish Tenant with a
new cartifie "as built" plot plan when changes are made to the
total square footage of gross leasable area for all buildings in
the Shopping enter. The statement submitted by Landlord shall
be accompani by evidence of the actual Costs of Operation and
Maintenance r asonably satisfactory to Tenant. The "Costs of
operation and Maintenance" shall mean all expenditures incurred
by or on beha f of Landlord in fulfilling its common area main-
tenance oblig tions under this Lease including, but not limited
to, the follo ing costs to the extent they are related to the
maintenance, epair and operation of the common areas and facili-
ties: the cc t of Landlord's liability insurance; gardening and
landscaping; spairs (including canopy repairs); replacement and
restriping of parking lot and accessways; lighting; signs;
removal of an w, trash, rubbish, garbage and other refuse (but
not the trash rubbish, garbage, or refuse of any tenant in the
Shopping Cent r); repair of on-site gas lines, water lines,
sprinkler sys ems, sanitary sewer lines, storm water lines,
electrical li s and equipment and all other utility facilities
and equipment erving the Shopping Center; the cost of police,
security and affic control services; the cost of painting of
the exterior o buildings (including the Demised Premises) in the
Shopping Cents ; utility charges for the common area; the cost of
compliance wi all laws and requirements of governmental author-
ities, and an administrative fee equal to 5.954 of the foregoing
costs with the exception of the cost of Landlord's liability
insurance. It is understood and agreed that the foregoing costs
do not include any portion of the hazard insurance premiums or
real estate to es relating to the Shopping center, such payments
being set for in Articles 11 and 21 hereof. Tenant shall not
be obligated t pay any interest, penalties, fines, or late
charges impose upon Landlord in connection with the maintenance
of the common reas. Notwithstanding anything in the foregoing
to the contra , the Costs of Operation and Maintenance for a
period of thre (3) years after the Commencement Date hereof will
exclude any cc incurred by Landlord for repair and replacement
of the paved su faces of the common areas, or the cost of pur-
chase or repair or replacement of any capital expenditure item.
Section 10 03. Tenant's Promotion Area. Anything contained
in this Less to the contrary notwithstanding, Tenant shall have
the right, at i s option, during the term hereof and any exten-
- 16 -
sions or rs awals, ut subject to applicable law, to use and
control the portiobn of the "common areas" located as outlined in
blue and ma led upon Exhibit "A" and labeled "Promotion Area"
provided th t such use does not materially impede customer traf-
fic or area e a nuisance or unsafe condition, and at all times
Tenant's us shall always allow the free passage thereover for
customers, nvitees, licensees, employees and other tenants of
the Shoppin Center. Tenant shall keep the promotion Area free
and clear o all snow, ice and trash. Tenant may use the Promo-
tion area a set forth in Article 13. Tenant acknowledges that
Landlord ma as no representations with respect to the use of the
said Promot on Area for the permitted uses heretofore and here-
after grant . During any periods that Tenant uses any portions
of the comm areas of the Shopping Center, Tenant shall keep
such areas can and neat, and free of snow, trash, rubbish, -
garbage and ther refuse, at Tenant's expense.
ARTICLE 11.
Section 11.01. Personal Property Taxes. Tenant shall be
liable for, nd shall timely pay, all taxes levied against per-
sonal proper y and trade fixtures placed by Tenant in the Demised
Premises. I any such taxes are levied against Landlord, or if
the assessed value of Landlord's property is increased by inclu-
sion of pars nal property and trade fixtures placed by Tenant in
the Demised remises, Tenant shall pay to Landlord, upon demand,
that part of such taxes for which Tenant is liable hereunder.
section111.02.
(a) From and after the Commencement Date, Tenant shall
pay to Landl d as additional rent its proportionate share as
hereinafter p ovided, of all real estate taxes, assessments and
impositions ( erein referred to collectively as taxes) which
shall be levi d upon the Demised Premises and shopping center
during the or ginal and renewal term of this Lease. If any
benefit asses marts or other assessments are imposed for curbs,
sidewalks, at seta, water, sewer or -other public improvements and
assessed agai st the Shopping Center, Landlord shall elect to pay
such assess me t in installments to the fullest extent permitted
by law. Tana t shall be responsible for its proportionate share
of such insta lmants (including interest or other charges result-
ing from such installment payments) payable during the period
from the Comm ncement Date until the expiration or earlier termi-
nation of the arm of this Lease. All taxes shall be apportioned
between Landl d and Tenant as of the date of commencement and
termination o the term of this Lease.
Tana is proportionate share shall be computed by
multiplying an such taxes by a fraction, the numerator of which
shall be the t tat square footage of gross leasable area of the
Demised Premix a and the denominator of which shall be the sum of
the total squ a footage of gross leasable area of all construc-
ted buildings including the Demised Premises) in the Shopping
Center.
(b)
taxes shall be
after Tenant's
Shopping Conte
setting forth,
tionate share
be obligated t
the last day u
Penant's proportionate share of said real estate
!ue and payable by Tenant within twenty (20) days
receipt of copies of the tax bill or tax bills
ton the real estate taxes assessed against the
for the applicable tax year and a statement
Ln detail, the calculation of Tenant's propor-
real estate taxes, provided that Tenant shall not
pay Landlord earlier than ten (10) days prior to
,n which Landlord could pay the taxes with a
- 17 -
discount. ndlord agrees to pay all such tax bills promptly and
before any analty is assessed. Tenant shall not be obligated to
reimburse ndlord for any penalties, interest, or fines levied
upon delin ant taxes. Landlord agrees to use prudent business
judgment in the payment of real estate taxes, and where war-
ranted, pay such taxes at "discount".
( ) Tenant may, with the prior written consent of
Landlord wh ch consent shall not unreasonably be withheld, and at
Tenant's o cost and expanse, contest by appropriate proceedings
the amount f any such tax. Upon the same consent of Landlord,
Tenant may, if it shall so desire, endeavor at any time or times
by appropri to proceedings to obtain a reduction in the assessed
valuation o the Demised Premises and/or Shopping Center for tax
purposes. hould Landlord advise Tenant in writing that said
proceedings should not be brought because it believes such pro-
ceedings me result in an increase in real estate taxes then
Tenant may ly institute such proceedings if it agrees to hold
Landlord he less from any increase in real estate taxes result-
ing from th institution and prosecution of such proceedings by
Tenant. La lord agrees, subsequent to giving its consent as
required a e, to join with Tenant at Tenant's expense in said
proceedings nd Landlord agrees to sign and deliver such papers
and instrume is as may be necessary to prosecute such proceed-
ings. Landl rd agrees to use reasonable efforts to timely notify
Tenant in wr ting of all changes in the assessment valuation of
the Shopping Center and the Premises by providing Tenant with a
copy of any ssessment notification received by Landlord from
governmental authorities (but any failure to so notify Tenant
will not be default hereunder). If Landlord shall obtain a
remission or a refund of all or part of the real estate taxes for
any tax year for which the Tenant's tax has been paid or is
payable, Lan lord shall promptly refund to Tenant (or credit
Tenant with) a proportionate share to be calculated after deduc-
tion of Land ord's actual costs and expenses incurred in obtain-
ing such rem ssion or refund.
section 11.03. Substitute Taxes. Landlord and Tenant
further agre that if at any time during the term of this Lease
the present thod of taxation or assessment of real estate shall
be so change that in lieu of or in addition to the whole or any
part of the al estate taxes, assessments or governmental impo-
sitions now 1 vied, assessed or imposed on the Demised Premises
and/or Shoppi g Center there shall be imposed, assessed or levied
a tax, levy o assessment in lieu of or in addition to real
estate taxes, then Tenant shall pay its proportionate share of
such taxes, a easements, levies, impositions, or charges. Any
tax, impositi n or levy hereafter imposed by any governmental
authority on ent payable hereunder shall be payable by Tenant.
ARTICLE 12. UTILITIES
Section
Premises, at
tion costs an
of this Lease
utilities (we
telephone, at
is available
separate meta
by Tenant in
to Tenant for
to the neglig
Landlord upon
cuter the wor:
1.01. Landlord agrees to provide to the Demised
:s sole cost and expense (including all construc-
governmental fees or charges) throughout the term
including any renewal terms, such facilities for
r, gas, electric, sanitary and storm sewers,
) as Tenant may reasonably require and so far as
the Shopping center and to install and maintain
1 to measure the consumption of utilities consumed
is Demised Premises. Landlord shall not be liable
:ailura of any utility unless such failure is due
ice or wrongful act of Landlord and provided that
receipt of notice from Tenant diligently prose-
necessary to remedy the failure of supply, and
-ls -
further r vide: that if by reason of such acts of Landlord,
Tenant ips noble to conduct its business in the Demised Premises
for a pars in exceed of three (3) days, rent And all other
charges ha dander shall abate until Tenant can again conduct
business 1 the normal course. Tenant agrees to pay for all
consumptio charges for such utilities from and after Delivery of
Possession or any sooner period that Tenant enters the Demised
Premises t fixture and prepare for its opening.
ARTICLE 13. yM
E
Sectio 13.01. The Premises may be used for any lawful
retail pure se including, without limitation, a supermarket or
retail food store, and for no other purpose; provided, however,
that Tenant may not operate a discount department store within
the Promise prior to December 12, 1996; and provided further,
however, th t Tenant's principal retail use (other than super-
market) wil not conflict with the principal use of any other
existing to ant in the Shopping Center at the time Tenant
commences s ch use. Landlord shall provide Tenant with a list of
the princip 1 uses of other existing tenants within thirty (30)
days of Tan nt's written request for same. Without limiting the
generality f the foregoing, Tenant shall have the right, but not
the obligat n to provide within the Premises banking services
and facilit s and to operate a prescription pharmacy department,
and to inat 1, within or on the exterior of the Premises, coin
operated pho es, newspaper machines, rides and other vending
devices, and an automated banking facility, provided however that
not more this four such vending devices shall be installed on the
exterior of a Premises or on the sidewalk immediately in front
of the Denis d Premises, and provided further that all such
devices and acilities shall be installed in accordance with
applicable 1 w and in such a manner as not to impede pedestrian
traffic. To ant may subdivide the Demised Premises in accor-
dance with title 19 hereof.
ARTICLE 14.
Section 14.01. Landlord's Covenants. In establishing the
shopping Can r a'nd selecting tenants for it, Landlord shall use
reasonable of orta to obtain and maintain a balanced and diver-
sified groups g of sound retail stores, merchandise and services
such as will aximize the attraction and drawing power of the
Shopping Cant r as n whole, and consequently, its aggregate
retail sales. Tenant has entered into this Lease in reliance on
this stated p licy and objective, and Tenant's substantial
investment in the Premises, as well'as the rental agreed to in
this Lease, a somas a level of sales that would be generated only
by strict adh rence to this stated policy and objective. In
furtherance o this policy and objective, and taking into consid-
eration the 1 iced size of the Shopping Center and the propor-
tion of its s ce to be occupied by Tenant, Landlord covenants
and agrees th , for the term of this Lease and any extension
thereof, no st re(s) and/or building(s), or any part of same, now
or hereafter a quired and/or constructed by Landlord within the
Shopping Csnte or upon any property within a three (3) mile
distance there rom (as measured by the shortest driving distance
by automobile rom the Premises) in which the Landlord has an
ownership ante est shall be used for the sale (at retail or
wholesale), fo off-premises consumption of groceries, meats,
fresh fruits, egetables, frozen foods and deli/bakery products.
The above-refs dace: restriction relating to land located within
three (3) mile of the Shopping center shall not apply to any
mortgagee who ekes title to the Center pursuant to a foreclosure
action or deed in lieu thereof. (For purposes of this paragraph,
- 19 -
Tenant ra ognizes and agrees that the sale of sandwiches and
delicates en items by restaurants in the Shopping Center shall
not const tuta a breach of the covenants contained herein.)
Landlord further covenants and agrees that no store(s) and/or
building( ), or any part of the same, now or hereafter acquired
and/or co atructed by Landlord within the Center shall be used
for the o oration of a theatre, bar, tavern, convenience food
store, de icatessen, school, health spa or fitness center (except
for a heal th spa or fitness center located in one of those areas
designate as a "proposed" area on the site plan attached hereto
as Exhibi "A"), plant nursery (except for a garden center opera-
ted by an adjacent to a home building center), nightclub,
church, s ting rink, adult or sexually explicit bookstore, sales
and servi ng of automobiles, meeting hall, child care nursery,
arcade, bi go parlor, bowling alley, amusement center, flea
market or uneral parlor or for purposes other than the operation
of busines as engaged in the sale of merchandise or the rendering
of service to the consuming public: If.at any time during the
term herso the Demised Premises is not being used as a super-
market or or the sale of food for a consecutive period in excess
of six (6) months, excluding any Excused Period (as defined in
Section 6. 2 hereof), the restrictions contained herein shall be
null and v id.
Moreo er, in the selection of the occupants of the Shopping
Center, La dlord will adhere to the following standards:
i) tenants must be required to maintain reason-
able andards of appearance and cleanliness; and
(i ) tenants may not create undue obnoxious noise,
litter or odor.
This S ction shall not prohibit Landlord from purchasing an
existing sh pping center within the aforesaid three (3) mile
distance of the Demised Premises even if said existing shopping
center has xisting tenants which operate a business which sells,
at retail o wholesale, food products for off premises consump-
tion, inclu ing without limitation, groceries; meats; fresh
fruits; veg tables; frozen foods, deli/bakery products; spirit-
uous liquor , including beer and wine; or prescription drugs;
provided h aver that Landlord shall not in such case expand any
such existi q shopping center, nor permit any of the tenants
therein to xpand their leased premises.
Notwit tanding the restrictions set forth above, Landlord
may permit a sale of the following items and conduct of the
following t as of businesses at the Shopping Center:
(a The incidental sale of food products for off-
premises con umption from any business in the Shopping Center
where such a Is is solely for the convenience of its customers or
employees.
(b Candy or cookie store.
(c Ice Cream store.
(d Health foods store.
(a Nut store.
(f) Florist.
does not op
Premises.
Tenant to h
operating a
Cheese store and/or bakery, but only if Tenant
a such a department or departments at the Demised
regard to a bakery department, in order for
an exclusive right for a bakery, Tenant must be
artment which produces baked goods on the prem-
-20-
ises. Sh 1ld Tenant operate such a bakery department or depart-
ments the Landlord shall not have the right to have such a store
or stores '=%r !h opping center during such period of time;
provided, that Landlord shall not be required to cause
the closur of any bakery which was operating at the Shopping
Center pri r to Tenant's operation of a bakery department or
department at the Demised Premises.
h) Restaurants (subject to the condition that no
restaurant (other than a restaurant selling primarily pizza or
Chinese fo d and occupying less than 3,000 square feet, or a
restaurant located in one of those areas designated as a "pro-
posed" are on the site plan attached hereto as Exhibit "A")
whose cust mars generally remain for more than sixty (60) minutes
at a time nd which is located within five hundred (500) feet
from the T nant's Premises shall be permitted).
e above-referenced businesses and uses labelled (b)
through (g) shall not, in the aggregate, occupy space in excess
of 10,000 are feet.
Sectio 14.02. Enforcement.
( ) Landlord will, promptly after written notice from
Tenant, bri g and prosecute to completion an appropriate action
or proceedi g in a court of competent jurisdiction to restrain a
violation o this Article, obtaining, if possible, an injunction.
In addition to any other remedies which Tenant may have, at law
or in *quit , Tenant shall have the right if Landlord shall fail
or refuse t bring such action or proceeding, to bring an action
or proceedi g against any occupant or occupants of any portion of
the Shoppin center for injunctive or other relief, in its own
name or in a name of the Landlord to enforce the provisions of
this Articl .
( In the event any prospective tenant or govern-
mental agenc shall claim or threaten the commencement of legal
action or an administrative proceeding alleging that any restric-
tive cover imposed upon Landlord in this Article is or may be
invalid or u lawful, Landlord shall thereupon promptly notify
Tenant of au h threat or claim. Tenant shall either, at its
option, (i) espond to such threat and defend any legal action in
its name or n Landlord's name, or (ii) waive its rights here-
under and in such event such covenant shall be deemed deleted and
for the bal. ce 0::
f the term of the Lease shall be unenforceable
against Land ord and any prospective or existing tenant of the
Shopping Can er who challenges such covenant. in the event
Tenant elect (i) above and responds to such threat and defends
any legal action, it shall do so at its sole cost and expense and
shall indemni y and hold Landlord harmless of and from any liabi-
lity, loss or expense that may arise out of or result from the
claims assert d or from any action or the defense of the
covenants oon wined herein, including any expense or cost
incurred or w ich may be incurred by Landlord for legal fees or
other expense in the defense of any such action in which it is
claimed that ndlord is or may be liable for any damages.
Subject to th foregoing, Landlord shall nevertheless be
obligated to eal with all prospective or existing tenants of the
Shopping Cant r as if such covenants were fully enforceable.
ARTICLE 15. REPAIRS
Section 5.01. Responsibilities of Tenant. Tenant shall
make such ord ary,non-structural repairs and replacements to the
Demised Premis a not occasioned by fire or other casualty, or the
elements, as a e necessary in Tenant's reasonable discretion or
- 21 -
which are ssitated by Tenant's acts or negligence or omis-
sions orb ce ach of this Lease or by the acti or negligence or
omissions o Tenant's agents, employees or nvitees. Tenant
shall also eplace all broken plate glass and windows, but where
the loss le covered by Landlord's insurance, Landlord shall make
a claim tha afor and reimburse Tenant for the cost thereof to the
extent that the insurance proceeds are sufficient to pay 'there-
for. Tanan shall also be responsible for such repair, mainten-
ance and re lacement of the heating, air conditioning, plumbing
and alectri al systems located within the Demised Premises as are
necessary i Tenant's reasonable discretion.
Sectio 15.02. Responsibilities of Landlord. Landlord
shall make it repairs and replacements, if necessary, ordinary
and extraor inary (other than those which Tenant is obligated to
make) in, t or about the Shopping center and all of the build-
ings within a Shopping Center including the building containing
the Demised remises, and all parts thereof, including, without
being limits to repairs and replacements to the roof, roof
structures a d supports, gutters, downspouts, and drains, founda-
tion and st ctural supports, exterior walls, canopy, and all
other outer ortione of the Demised Premises; structural portions
of the floor , and the appurtenances to the Demised Premises,
including bu not imited to curbs, sidewalks, and exterior
utility line servicing the Demised Premises; and all other
structural r pairs nd replacements, whether interior or exterior
and all exta for painting as and when required to maintain a
first class ppearance. Notwithstanding the foregoing provisions
in Section 1 .01, Landlord shall make all repairs, though
interior or on-structural, which are necessitated by the
settling of a building, or by Landlord's acts or negligence or
omissions or reach of this Lease, or by defects in the original
construction r installation of which Landlord receives notice
from Tenant thin the first Lease Year or which are covered by
guarantees or warranties. Landlord further agrees to warrant for
one (1) year 11 of Landlord's construction work in the Premises
and to assign to Tenant all warranties granted Landlord by Land-
lord's contra tore, subcontractors, suppliers and agents during
and after con truction of the Premises, provided, however, that
if any of sai warranties are not assignable, and it becomes
necessary to nforce said warranties, Landlord covenants that,
upon notice f om Tenant, it will promptly and fully enforce said
warranties on behalf of Tenant.
Section
emergency, it
required to b
may, without
and pay the a
reimburse the
thereof upon
section 1
earlier termin
agrees that it
Premises toget
ments then a p
Bred to Landlo
warranties of
Tenant to make
inal condition
with all trade
Prom. Notwith
holes or other
Tenant of any
.03. Emercencv Repairs. If, in the event of an
hall become necessary to make any repairs hereby
made by either Landlord or Tenant, the other party
tice, proceed forthwith to have such repairs made
t thereof, whereupon the responsible party shall
arty that performed the repairs for the cost
mand therefor.
.04. Surrender of Premises. At the expiration or
tion of the term or any extension thereof, Tenant
will peaceably and quietly leave and surrender the
or with all alterations, additions and improve-
rt of the Premises, all of the same to be redeliv-
d "as and "where is" with no representation or
ny kind by Tenant and without any obligation on
repairs or to restore the Premises to their orig-
ut nevertheless in "broom-clean" condition and
ixtures, equipment and inventory removed there-
Pending the foregoing, Tenant shall repair any
amage caused to the Premises by the removal by
its trade fixtures, equipment and alterations
- 22 -
and shall 1 ave. the Demised Premises with heating, ventilating
and air-con itioning equipment in working condition. Tenant may
accomplish uch redelivery to Landlord by written notice to that
effect to ndlord.
Sectio 15.05. Repairs Recuired by Law. Except for the
responsibil ties of Landlord'pursuant to Section 15.02 of this
Lease, Tone t shall make all repairs, alterations and additions
to the Demi ad Premises which may be required by any laws, ordi-
nances, ord rs or regulations of any public authorities having
jurisdictio over the Demised Premises. Landlord shall make all
repairs, al orations and additions to the Shopping Center,
excludingt a Demised Promises, which may be required by any
laws, ordin noes, orders or regulations of any public authorities
having juri diction over the Shopping Center. Notwithstanding
anything se forth herein to the contrary, Tenant shall make all
repairs, al rations and additions required because of any use
made of the emised Premises by Tenant.
ARTICLE 16. ALTERATIONS
Section 16.01. Tenant's Alterations. (a) Tenant may, at
its own expe as, from time to time during the term hereof make
any alterati no, additions and improvements to the non-structural
interior of he Premises which it may deem advisable or neces-
sary. Tenan may, at its own expense, from time to time during
the term her of make structural changes and changes which affect
the exterior or the appearance of the store front of the Premises
after obtain ng Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed. Tenant agrees
that any auc alterations, additions and improvements shall be
made in a fi st-class workmanlike manner, shall conform in
general styl and harmony with the other existing or proposed
buildings in he Shopping Center and are properly engineered in
accordance wi all applicable federal, state, county and munici-
pal requires is and, when completed, the same will not increase
the gross flo r area or structurally weaken the building on the
Premises. Al salvage from such work shall belong to Tenant but
all permanent improvements shall belong to Landlord and become
part of the p emises subject to this Lease. Tenant shall have
the right to emove at any time and from time to time during the
term of the L ase, all or any portion of the fixtures, equipment,
decor and int rior and exterior signage installed in or on the
Premises by T nant, provided that Tenant repairs any damage
caused by suc removal (except for necessary holes and other
openings and navoidable damage to plaster and painted surfaces
resulting the efrom) and that Tenant leaves the Demised Premises
with heating, entilating and air-conditioning equipment in
working condi ion.
(b) Land ord shall execute and deliver upon request of
Tenant such in trument or instruments embodying the approval of
Landlord which may be required by any public or quasi-public
authority for he purpose of obtaining any license or permit for
the making of U. alterations, changes and/or installations in,
to or upon sal Demised Premises, Tenant agreeing to pay for all
such licansas r permits. Tenant shall not require Landlord's
consent to do he work of fixturing and installations required of
Tenant to suit the Premises to its needs at or before the com-
mencement of t e term. Landlord shall not be responsible for
maintenance or repairs necessitated by any alterations or changes
made by Tenant, including those to structural elements after
Landlord's con ent, and Tenant shall be solely responsible for
any increase i taxes or insurance premiums caused by such al-
terations. The immediately preceding sentence shall not be deemed
-23 -
to limit i any way Landlord's obligations in the event the
Promises a e damaged or destroyed by fire or other casualty,
which obli ations are set forth in Article 22 hereof.
Sects 16.02. Tenant's Trade Fixtures. Any trade fix-
tures, equi mant and other property installed in or attached to
the Damised Premises by and at the expense of Tenant shall remain
the propert of Tenant, and Tenant shall have the right at any
time and fr m time to time, to remove any of the same so
installed o attached in the Demised Premises, including, but not
limited to, counters, shelving, showcases, chairs and moveable
machinery. If Tenant shall not have removed said property within
thirty (30) days following the termination of this Lease, then
the same sh 11 be deemed to be abandoned by Tenant, but the
failure to emove said property shall not be deemed to be a
holding ove by Tenant nor a ground for claiming a renewal or
extension o this Lease. Tenant shall remove any and all fix-
tures or a ipment which are subject to the rights of any equip-
ment lessor ithin thirty (30) days following the termination of
this Lease. Tenant shall be responsible for the payment of all
rent and ad tional rent up to and including the day that all
trade fixtu s, equipment and other property located in the
Demised Prom sea which Tenant desires to remove are so removed,
and the Demi ad Premises are redelivered to Landlord in accor-
dance with S ction 15.04 hereof. Tenant shall repair all damage
to the Demis d Premises caused by the removal by Tenant of any
such propert (except for necessary holes and other openings and
unavoidable amage to plaster and painted surfaces resulting
therefrom) a d shall leave the Demised Premises with heating,
ventilating nd air-conditioning equipment in working order.
Section 16.03. Landlord's Waiver. Landlord shall, upon the
request of T ant, execute and return to Tenant within ten (10)
days after r est therefor, any normal and customary document
necessary to ubordinate Landlord's right of distraint or execu-
tion to any rfacted security interest held by a secured party
in any of To nt's trade fixtures, furnishings and equipment
located withi or about the Demised Premises. Notwithstanding
the preceding sentence, Landlord shall not be obligated to
respond to Te ant's request if Tenant is in substantial or mone-
tary default f this Lease and has not commenced to cure such
default.
TICLE 17. FURTHER COVENANTS OF TENANT
Section 7.01. Tenant shall:
(a) pay hen due the said rent and all additional rent at
the times and in the manner aforesaid;
(b) proc re any licenses and permits required for any use
made of said P emises by Tenant;
(c) not ake any use of the Demised Premises which is
contrary to an law or ordinance; nor permit any act or thing to
be done on the Demised Premises which shall constitute a nuisance
or which may m ke void or voidable any insurance against fire on
said Premises r the building of which they are a part, and to
pay any increa ad or extra premium payable for any such insurance
resulting from any act or omission of Tenant other than the con-
duct of Tenant's retail business in a lawful and proper manner;
(d) pay omptly when due the entire cost of any work to
the Demised Pr ises undertaken by Tenant so that said Premises
shall at all ti as be free of liens for labor and materials; to
- 24 -
procure all necessary permits before undertaking such work in a
good and wo an like manner, employing materials of good quality
and complyiric with all governmental requirements; and to indem-
nify and as Landlord harmless from all injury, loss, claims or
damage to an person or property occasioned by or growing out of
such work; ,
(a) up n reasonable prior written notice, to permit Land-
lord and its agents to enter onto and examine the Premises at all
reasonable t mes and to show the Premises to prospective pur-
chasers or m rtgagees, and during the last eight (e) months of
the term her of, to prospective tenants, provided that Landlord
shall not th reby interfere with the conduct of Tenant's busi-
ness; to Pat it Landlord to enter said Premises to make such
repairs, imp ovements, alterations or additions thereto as may be
required for the safety or preservation thereof or of the build-
ing, or in o der to comply with the requirements of any public
authority ha ing jurisdiction of the Premises (but only to the
extent it is Landlord's obligation, under Article 15 hereof, to
ensure compl ance with said requirements), or as may be required
of Landlord nder the terms of this Lease, and Landlord shall do
all such wor as expeditiously as reasonably possible and without
substantial terference with Tenant's use of the Premises; and
(f) re rn the Demised Premises to Landlord at the expira-
tion of this ease in broom clean condition, pursuant to the
terms of Sect on 15.04 of this Lease.
ARTICL 18. INDEMNIFICATION AND LIABILITY INSURANCE
Section 8.01. Tenant's Indemnification and Insurance.
Tenant shall eve Landlord harmless and indemnify it from and
against all i jury, 'lose, claims and damage to any person or
property whil in, on or about the Damised Premises (for the
purposes of t,!: Section 18.01, the Demised Premises shall
include Tenan 'e Promotion Area) and the sidewalks and loading
areas abuttin the Demised Premises, arising out of the use or
occupancy of a Demised Premises by Tenant (unless caused by the
act, negligen a or default of Landlord, its employees, agents,
licensees or ontractors, or occasioned by any nuisance made or
suffered by dlord on the Demised Premises), and from and
against all i ury, lose, claim or damage to any person or prop-
erty anywhere ecasioned by any act, negligence or default of
Tenant or Tana is failure to perform and observe its obligations
under the term of this Lease. Tenant shall maintain with
respect to the Demised Premises public liability coverage of Five
Million Dollar ($5,000,000) (or such higher amount as Landlord
may reasonably request provided that such higher limits are
generally carr ed by chain supermarkets operating stores of
similar size i the state in which the Shopping Center is
located) per o currence combined single limit coverage for bodily
injury, person 1 injury and property damage, in companies
qualified to :d business in the state in which the Shopping
Center is lo ca ed, insuring Landlord as well as Tenant and, at
the request oft ndlord, Landlord's mortgagee, such policies to
name Landlord d, if requested, Landlord's mortgagee) as an
additional ins red and to provide that the hold harmless and
indemnificatio wording of this Lease is insured as a contractual
obligation and thirty (30) day notice of cancellation of said
insurance shal be provided to all who are or become additional
insureds under his Lease.
Section 18 02. Landlord's Indemnification and Insurance.
Except as othe ise provided in Section 18.01, Landlord shall
save Tenant ha lesa and indemnify it from and against all
- 25 -
injury, los slain; or damage-to any person or property while on
or about th parking areas, roads, ways, walks and approaches in
and to the hopping Center (unless caused by the act, negligence
or default f Tenant, its employees, agents, licensees or con-
tractors or occasioned by any nuisance made or suffered by Tenant
at the shop ing Center), and from and against all injury, loss,
claim or da age to any person or property anywhere occasioned by
any act, n ligence or default of Landlord, or Landlord's failure
to perform d observe its obligations under the terms of this
Lease. Lan Ord shall maintain with respect to the Shopping
Center, inc ding the Demised Premises, comprehensive general
liability in urance of not less than Five million Dollars
($5,000,000) in responsible companies qualified to do business in
the state in which the Shopping Center is located, insuring
Tenant as we 1 as Landlord against injury to persons or damage to
property as erein provided, such policies to provide that the
hold harmles and indemnification wording of this Lease is
insured as a contractual obligation and a thirty (30) day notice
of cancellet on of said insurance shall be provided to all who
are orbecom additional insureds under this Lease. Landlord may
reasonably i crease such coverage from time to time provided that
such higher imits are generally carried by landlords for similar
shopping can era in the state in which the Shopping Center is
located. Th cost of such policy or policies shall become part
of the Costs of Operation and Maintenance of the common facili-
ties of the opping Center and Tenant shall pay its pro-rata
share therso as set forth in Section 10.02.
Section 8.03. Certificates of Insurance. Each party
hereto shall sposit with the other certificates of such insur-
ance to be ca ried by it, at or prior to the commencement of the
term, or earl ar opening under Section 4.01, and thereafter
within thirty (30) days prior to the expiration of such policies.
Such policies shall to the extent obtainable provide that the
policies may of be cancelled or modified without at least thirty
(30) days' pr or written notice to each insured. Such insurance
may be mainta ned by Landlord or Tenant under a blanket policy or
policies cove ing other locations of the insured or those of its
parent, subsi iaries or affiliates, so long as such blanket
policies cont in the required limits on an occurrence basis, and
so long as th blanket policy provides that occurrences at one
premises will of diminish the amount of coverage available in
respect of of r premises.
TICLE 19. ASSIG
Section 15.01. Riaht to
(a) Tenant may assign this Lease or sublet the Demised
Premises, or a y portion thereof, to another supermarket opera-
tor, without o taining the prior written. consent of Landlord
thereto.
(b) In the event that Tenant shall desire to assign
this Lease or ublet the Demised Premises, or any portion there-
of, other than as set forth above, Tenant shall notify Landlord
by written not ce of ,to intention to assign or sublet. Upon
receipt of suc notice, Landlord shall have the right to termin-
ate this Lease rovided Landlord notifies Tenant within one
hundred eighty (180) days of the date of Tenant's notice that
Landlord is axe cising its right to terminate this Lease (the
"Termination No ice"). This Lease shall terminate thirty (30)
days after the anent receives the Termination Notice (the "Ter-
mination Date") Notwithstanding the foregoing, the Tenant shall
have the right o supersede and cancel any Termination Notice if
- 26 -
prior to Is Termination Date Tenant )i. Lifia,i Landlord that is
has withdr it. notice of intention to assign or sublet and
that it int nds to continue to operate as a supermarket.
I Landlord fails to exercise its right to terminate
this Lease y providing a Termination Notice within the time
period dose ibed above, Landlord shall not have any right to
terminate t is Lease as a result of any such assignment or sub-
letting pro ided that such assignment or subletting occurs within
one (1) yea from the date Tenant first notified Landlord of its
intent to a sign or sublet. After said one (1) year period,
Landlord wi 1 again have the same rights as set forth in the
preceding p ragraph.
( ) Tenant shall thereafter give written notice to
Landlord of he assignment of this Lease or of a subletting of
the Promise . Said written notice will be given to Landlord
eoncurrentl or promptly after the execution and delivery of the
assignment o this Lease or the sublease of the Premises and
Landlord she 1 be given certified copies of, all such assignments
or subleases Tenant may subdivide the Demised Premises only
with the wri ten consent of Landlord, which consent shall not be
unreasonably withheld or delayed.
(d Notwithstanding any assignment or subleasing,
however, all rental payments and other charges payable by Tenant
pursuant to he terms of any provisions of this Lease shall
continue to a due and payable in accordance with the terms
hereof. Ten nt shall continue to be liable to Landlord for all
the terms, a enants and conditions of this Lease notwithstanding
any assignme or subletting.
in this Lease
any right of
vided in this
(i) any affil
the purchaser
provided that
all the terms
(f)
the Premises d
skating rink,
or repair of a
nursery, aread
flea market or
the operation
the rendering
which conflict
another tenant
Section
Notwithstanding anything to the contrary contained
Tenant may, without Landlord's consent and without
ermination on the part of Landlord as above pro-
section, assign or sublet the Demised Premises to
ate or wholly owned sybsidiary of Tenant or (ii)
of all or substantially all of the assets of Tenant
Tenant shall continue to be liable to Landlord for
covenants and conditions of this Lease.
In no event may Tenant assign the Lease or sublet
use the Demised Premises as a nightclub, church,
dult or sexually explicit bookstore, for the sales
tomobiles, movie theater, meeting hall, child care
, bingo parlor, bowling alley, amusement center,
funeral parlor or for uses or purposes other than
f a business engaged in the sale of merchandise or
f services to the consuming public nor for any use
with an existing principal or exclusive use by
at the Shopping Center.
02. Assignment by Landlord.
(a) The term "Landlord" as used in this Lease means
only the owner for the time being of the Demised Premises and/or
the Shopping c nter or the lessor thereof pursuant to a ground
lease thereof.
(b) n the event of any sale or sales of the Demised
Premises and/or the Shopping Center or assignment or assignments
of such lease ereof or the assignment of this Lease, the Seller
or assignor sha 1 be, and hereby is, freed and relieved of all
covenants and o ligations of Landlord under this lease, and it
shall be deemed and construed without further agreement between
- 27 -
the parties
or assignee
covenants a:
under this
ment or ass
or their successors in interest, that the purchaser
has assumed and agreed to carry out any and all
d obligations of Landlord arising or to be performed
,ease after the date of such sale or sales or assign-
( ) Notwithstanding anything herein contained to the
contrary, 1 is specifically understood and agreed that there
shall be no arsonal liability on the part of the Landlord, its
agents, rep sentatives, employees, or any of its constituent
members, pa ners or shareholders, or their respective legal
representat as, heirs, successors and assigns as the case may
be, with res act to any of the terms, provisions, covenants and
conditions o this Lease or otherwise, and that Tenant shall look
solely to th estate, property and equity of Landlord (or such
successor in interest) in the Shopping Center and subject to the
prior rights of any mortgagee for the satisfaction of each and
every remedy of Tenant in the event of any breach of any of the
terms, provi ions, covenants and conditions of this Lease to be
performed by Landlord, or in the event of any other claim which
Tenant may a lege against Landlord, its agents, representatives,
employees, c nstituent members, partners or shareholders, or
their respec ive legal representatives, heirs, successors and
assigns, whi h exculpation of personal liability shall be abso-
lute and wit out exception.
ARTICLE 20. SIGNS
Section 0.01. Uniform Plan for Shoocinc Center. Landlord
shall have a niform scheme for the style, illumination, size and
placement of he exterior signs of all tenants of the Shopping
center. Not thstanding the foregoing,. Landlord reserves the
right to perm t other tenants to utilize signs incorporating
their logos a d emblems where same are recognized on a regional
and/or nation 1 basis. However, no signs will interfere with the
ready visibil ty of Tenant's sign from any adjacent or nearby
street, road r the parking area.
Subject o applicable requirements of all authorities claim-
ing jurisdict on thereover, Landlord shall furnish and erect
lighted doubl faced "Entrance" and "Exit" signs at each entrance
and exit to a Shopping Center which shall be not less than
thirty-sik (3 ) inches high by forty-five (45) inches long by
eighteen (18) inches wide, and at least one (1) illuminated
double faced ylon sign advertising the entire Shopping Center.
Said signs sh 11 be kept in good order and repair and lighted
during the ev ing hours when Tenant is open for business, all
such costs to a included in the Costs of Operation and Main-
tenance. Lan ord agrees to place Tenant's sign on said pylon in
a position rec gnizing the size the Demised Premises bears to the
size of other remises at the Shopping Center.
Landlord 1
to place throu4
prohibiting lo:
proselytizing
shall reasonab:
Landlord shall
the cessation
soliciting, pil
no responsibil:
or abatement.
Tenant's Premii
labor dispute i
right to exerc:
see, at Tenant's reasonable request in writing,
ut the shopping Center "private property" signs
ring and unauthorized soliciting, picketing and
locations and containing such language as Tenant
approve. Promptly after requested by Tenant,
e all lawful means it considers prudent to cause
abatement of prohibited acts of loitering,
ting and proselytizing, but Landlord shall bear
if Landlord is unable to effect such cessation
the event, however, of any picketing of
which is attributable to a practice, policy, or
sly involving Tenant, then Tenant shall have the
any lawful means to cause the cessation, the
- 28 -
abatement of such picketing, and Landlord, at Tenant's expense,
agrees to cc perate and assist Tenant to the extent Tenant
requests sam , so long as Tenant holds Landlord harmless in all
such events.
Section 20.02. Tenant's and Subtanant's Primary Signs.
Tenant shall have the right, subject to Landlord's consent, such
consent not o be unreasonably withheld or delayed, to place,
maintain and replace in, on and about the Demised Premises signs
of a style, olor and design, and bearing Tenant's distinctive
lettering, s filar to those used at new store locations of Tenant
provided suc signs are engineered and designed to conform and be
harmonious w the overall scheme and style of exterior signage
in the Shoppi g Center, and are conforming to all applicable laws
and ordinance . Moreover, any subtenant shall have the right,
subject to La dlord's consent, such consent not to be unreason-
ably withheld or delayed, to place, maintain and replace in, on
and about the Demised Premises signs of a style, color and
design, and b aring the subtenant's distinctive lettering,
similar to th as used at other store locations of the subtenant
provided such signs are. engineered and designed to conform and be
harmonious wi h the overall scheme and style of exterior signage
in the Shoppi g Center, and are conforming to all applicable laws
and ordinance . Neither Tenant nor-any subtenant shall place or
maintain any igns which are moving, flashing, intermittently
lighted or he ing characters which are intermittently lighted.
Section 0.03. Tenant's Merchandising Signs. Tenant shall
have the righ to maintain, place and install its usual and
customary win w displays, signs and advertising matter, and
fixtures, in a d on the show windows and the interior and
exterior of th Demised Premises, provided such signs are in
accordance wit all applicable laws. All exterior signage shall
be limited to emporary signs which are used for period not to
excuse ninety 90) consecutive days.
Section 2t;, 04. Tenant's Responsibilities. Tenant shall
maintain its a s in a good state of repair and save the Land-
lord harmless tom any loss, cost or damage as a result of the
erection, main enance, existence or removal of the same, and
shall repair a y damage which shall have been caused by the
erection, exis once, maintenance, or removal of such signs. Upon
vacating the P emises, Tenant shall remove all signs and repair
all damage cau d by such removal.
ARTICLE 21. FIRE INSURANCE
Section 21 01. Demised Premises Insured by Landlord. Land-
lord shall, fro and after the date of the execution of this
Lease, keep the Demised Premises, including any improvements and
betterments (ex lusive of Tenant's trade fixtures, inventory, and
other items no ally insured under Tenant's "contents" insurance)
which may be ma a by Tenant to the extent that the same are
customarily ins table as part of the realty and may be covered by
Landlord's insu ance, insured against loss or damage by fire and
other casualtia under a policy of "all-risk" insurance including
all available a ditional extended coverage and endorsements for
change in build ng code or conditions in the amount not less than
the full replac ant value thereof, exclusive of the footings and
foundations. S id policy shall also insure against loss of all
rent and additi al rent due to said casualties and damage from
sprinkler leaks If Landlord is unable to obtain sprinkler
leakage insuranc , Landlord shall so notify Tenant, whereupon
Tenant may proc a such insurance.
- 29 -
I'
Tenant agrees to provide Landlord with timely notifica-
tion of a y improvements and betterments made by Tenant, together
with oost information relative thereto. Tenant's failure to
provide a aforesaid information to Landlord shall not relieve
Landlord f the obligation to keep the improvements and better-
ments wit in the Demised Premises insured to the replacement
value as riodically determined by Landlord's insurance carrier
unless Te nt's failure to provide such information results in
the failur to provide adequate coverage.
Secti n 21.02. Tenant's Share of Insurance Cost. Tenant
shall rei urse Landlord, as additional rent, the costs of insur-
ance requi ed to be maintained by Landlord pursuant to Section
21.01 here f. In the event such cost shall not be separately
charged by the insurance carriers for the Demised Premises alone,
Tenant she 1 reimburse Landlord for Tenant's proportionate share
of the cos of such insurance maintained by Landlord on the
buildings n the Shopping Center. Tenant's proportionate share
of such cc t shall be a fraction thereof, the numerator of which
shall be t e total square footage of gross leasable area of the
Demised Pr ises and the denominator of which shall be the total
square foo ge of gross leasable area of all buildings (including
the Demise Premises) in the Shopping Center. Such reimbursement
shall be m e within thirty (30) days after Landlord shall have
rendered a ill to Tenant accompanied by a true copy of the
invoices fo insurance premiums and the facts and information
needed to c lculate Tenant's liability under this section.
Tenant's pr portionate share shall be prorated for any period not
included wi hin the term or any extended term of this Lease.
hereby re
or respon
under the
damage to
or supple
other party,
provided, h
force and of
during such
clause or an
not adversel
right of the
the releasor
agrees that
its policies
be charged
and of the a
election, ma
If such extr
or endorseme
unable to ob
once policie
charge to ha
or Tenant (as
pany to name
cost. If an
shall advise
party, at its
ated to do so
party, such o
insured.
21.03. Waiver of Subrogation. Landlord and Tenant
:tively release the other from any and all liability
lity to the other or anyone claiming through or
way of subrogation or otherwise for any loss or
)perty caused by fire or any of the extended coverage
ary contract casualties, even if such fire or other
.1 have been caused by the fault or negligence of the
or anyone for whom such party may be responsible,
ever, that this release shall be applicable and in
act only with respect to loss or damage occurring
ime as the releasor's policies shall contain a
orsement to the effect that any such release shall
affect or impair said policies or prejudice the
releasor to said policies or prejudice.the right of
to recover thereunder. Each of Landlord and Tenant
t will request its insurance carriers to include in
such a clause or endorsement. If extra cost shall
erefor, each party shall advise the other thereof
ount of the extra cost, and the other party, at its
pay the same, but shall not be obligated to do so.
cost is not so paid by the other party such clause
t need not be obtained. If Landlord or Tenant are
ain a waiver of subrogation clause in their incur-
, or if the other party objects to paying an extra
such a clause included in such policies, Landlord
the case may be) shall request the insurance con-
he other party as an additional insured at no extra
xtra cost is charged therefor, however, each party
he other of the amount thereof, and the other
election, may pay the same, but shall not be oblig-
If such extra cost is not so paid by the other
her party need not be'named as an additional
- 30 -
ARTICLE 22.
Secti n 22.01. Damage to Demised Premises. If the Demised
Premises s all be damaged or destroyed by fire or other casualty
insured aq inet by the insurance policy held in accordance with
Article 21 hereof, at any time during the term of this Lease or
any renews term of this Lease, this Lease shall nevertheless
continue 1 full force and effect and Landlord shall promptly,
and with r asonable diligence, at Landlord's expense, repair,
restore or rebuild the Demised Premises to substantially the same
condition a existed immediately before such damage or destruc-
tion (i.e., the original plan as contained in Exhibits A and D
hereof, pl any subsequent alterations or modifications thereto
made by La lord, or by Tenant by which Landlord has been advised
in accordan a with the Lease), in a good and workmanlike manner
in complian a with all requirements of law and of governmental
rules and r gulations except that Landlord shall not be required
to repair a d restore any of Tenant's trade fixtures, equipment
or personal property. Landlord's obligation hereunder shall be
limited to a proceeds actually released to and received by
Landlord un er said insurance policy which are allocable to the
Demised Pre ises. Landlord shall promptly seek, and diligently
pursue, the release of said insurance proceeds. From the time of
the damage r destruction and during the period of repairing or
rebuilding nd until the sixtieth (60th) day after the Demised
Premises ar repaired and returned in good and tenantable condi-
tion, the m imum rent herein reserved shall be abated and can-
celled; pro dad, however that if Tenant, in its reasonable
judgment she 1 use any of the Demised Premises for the sale of
its Marchand as during the period that the Demised Premises are
being repair d or restored, then the minimum rent shall be fairly
and justly a portioned and Tenant shall pay a fair and just
portion then of according to the space which Tenant may use for
the sale of is merchandise during the period of repair or
restoration, and further provided that no such abatement shall
occur unless Landlord is compensated therefor by insurance pro-
ceeds from r ntal insurance policies as provided for in Section
21.01 hereof within a reasonable time following repair and/or
restoration f the Demised Premises by Landlord, Tenant shall
repair, rade orate and refixture the Demised Premises. Tenant
agrees to ex cise reasonable diligence to reopen for business in
the Demised emises as soon as practicable thereafter unless
this Lease is terminated, as hereinafter provided.
Exc pt (i) to the extent specifically provided for in
this Lease, a d (11) to the extent Landlord receives rent or
similar insur nce proceeds attributable to the Demised Premises,
none of the m nimum rent and other sums payable by Tenant nor any
Of Tenant's o her obligations under any provisions of this Lease
shall be affa ted by any damage to or destruction of the Demised
Premises and/ r Tenant's Building by any cause whatsoever.
Section
izAa. In the
(6) months of
approvals (bu
damage or des
to exceed thr
out of such d;
lord, to commi
that event Tai
may have undei
option of ten
however, that
ably delayed 1
1.02. Commencement of Rebuilding of Demised Prem-
:vent Landlord fails within the later of: (a) six
:r receiving any necessary final permits and
in no event later than nine (9) months after such
notion), or (b) a reasonable amount of time (not
(3) months) after all insurance proceeds arising
sage or destruction are actually released to Land-
ice to rebuild the Devised Premises, then and in
,nt, without prejudice to all other remedies Tenant
this Lease or in law or in equity, shall have the
nating and cancelling this Lease. Provided,
f the commencement of such rebuilding is unavoid-
reason of inability to obtain materials, strikes,
- 31 -
wars or hoe ilities of foreign powers or acts of God, then the
time for th commencement of such rebuilding shall be extended
for a time qual to the period of the unavoidable delay
occasioned y such inability to obtain materials, strikes, wars
or hostilit as of foreign powers or acts of God. Notice of
cancellatio to be effective shall be given by Tenant to Landlord
by certifie or registered mail, return receipt requested, not
later than f (teen (15) months after such damage or destruction,
and upon the giving of such notice, this Lease shall come to an
and and term note as of the date of such damage or destruction.
Section 22,03. Completion of Rebuilding of Demised Prem-
Sees. If I. dl ;rd shall have duly commenced the rebuilding of
the Demised remises but shall fail to substantially complete the
repair or re uilding of the Demised Premises within nine (9)
months or fi ally complete same within eleven (11) months after
such commenc ment, then Tenant shall have the option of termina-
ting and can elling this Lease. However, if the completion of
such repair.. r rebuilding is unavoidably delayed by reason of
inability to obtain materials, strikes, wars or hostilities of
foreign powe s or acts of God, then the time for the completion
of such reps r or rebuilding shall be extended for a time equal
to the perio of the unavoidable delay occasioned by such inabil-
ity to obtai materials, strikes, wars or hostilities of foreign
powers or ac oP God. Notices of cancellation to be effective
shall be give by Tenant to Landlord by certified or registered
mail, return receipt requested, not later than twenty-five (25)
months after uch damage or destruction, and upon the giving of
such notice, hia Lease shall come to an end and terminate as of
the date of s ch damage or destruction.
Section 2.04, End of Lease Term. During (a) the last year
of the term h reby granted or the last year of any extended term,
if the Demise premises should suffer such damage or destruction
such that the cost of restoration shall be in excess of twenty
percent (201) of the replacement value immediately prior to such
damage or des ruction, or (b) the next to last year of the term
hereby grants or the next to the last year of any extended term,
if the Demise Premises should suffer such damage or destruction
that the coat f restoration shall be in excess of twenty-five
percent (251) f the replacement value immediately prior to such
damage or des uction, either party hereto shall be entitled, by
notice to the they, given within thirty (30) days after such
damage or dest uction, to terminate this Lease, and this Lease
shall terminat on the thirtieth (30th) flay after the giving of
such notice as if that day had originally been fixed as the
expiration dat of the term herein demised and the rent shall be
adjusted as of the occurrence of any such damage or destruction;
and in the eve t of termination of this Lease, the proceeds of
fire insurance with extended coverage on the Demised Premises
carried by Lan lord pursuant to Section 21.01 hereof, shall be
the property o Landlord; provided, however, that if Landlord
elects to term note this Lease, Tenant can supersede Landlord's
cancellation b notifying Landlord within fifteen (15) days after
Tenant's recei of Landlord's notice of cancellation of Tenant's
immediate exec Be of an option to renew the term as set forth in
Article 5, in ich event Landlord shall restore the Demised
Premises as pro ided in this Article.
Section 22 05. Damage to Shopoina Center Generally, in the
event any build ng or buildings in the Shopping Center, other
than the Demise Premises, shall be destroyed or damaged by fire
or other hazard during the term of this Lease, or any renewal
thereof, Landlo d shall promptly and diligently (subject to
receipt of insu ance proceeds, release of which proceeds Landlord
- 32 -
shall primp ly seek and diligently pursue) reconstruct and
restore all or such of said buildings which represent at least
a vanty-fiv percant,(76t) of the gross leasable area (exclusive
of the Demi ad Premises) in the Shopping Center to substantially
the same cc ition as before the occurrence of such damage or
destruction, and Landlord shall remove all debris from the site
of the dame and, if necessary or appropriate, thereafter land-
scape and/o provide additional parking spaces upon the damaged
site based a plan of reclamation, which plan shall be subject
to the prior approval of Tenant, not to be unreasonably withheld
or delayed. In the event that any or all of the buildings or
common area f the Shopping Center is damaged to such an extent
that, in the reasonable judgment of Landlord, the Shopping Center
cannot be op rated as an economically viable unit, then Landlord
may terminat this Lease as of the occurrence of such damage or
destruction y notice to the Tenant within sixty (60) days after
the occurren a of such damage or destruction. If the Lease has
not been to inated as herein provided and for any reason what-
soever, such reconstruction (and reclamation) is not completed
within eight on (18) months after the occurrence of such damage
or destructi n unless Landlord be prevented from completing such
reconstructi n (and reclamation) by causes or conditions beyond
its control, which shall include any delay in the release of
insurance pr ceeds to Landlord (in which event the said eighteen
(18) months hall be extended for a period equal to such period
of delay, bu in no event shall such period be extended for more
than an addi ional six (6) months even if the delay results from
causes or co itions beyond the control of Landlord) then Tenant
may, at its le option, terminate this Lease by giving thirty
(30) days pri r written notice to Landlord of its intention to do
no. In the ant of such termination, rents shall be adjusted as
of the date o termination and Tenant shall have no further
obligations h rounder.
Section
standing any
event that th
fire or other
or any renewa
any rebuildin
shall have gi
event Tenant
request withi
this Lease sh
ing the date
further liabi
the event of
the building
Landlord and
fixtures, fur
of Tenant,
2.06. Tonal Destruction of the Premises. Notwith-
rovision in this Article to the contrary, in the
Demised Premises shall be totally destroyed by
casualty at any time during the term of this Lease,
term of this Lease, Landlord shall not commence
of the Demised Premises unless and until Tenant
en Landlord a written request to rebuild. In the
oes not provide Landlord with such a written
sixty (60) days from the date of destruction, then
11 automatically terminate sixty (60) days follow-
f destruction and neither party shall have any
ity to the other for the continuation of same. In
ermination, any insurance proceeds applicable to
Ere, Demised Premises shall become the property of
iy insurance proceeds applicable to Tenant's trade
Ere, equipment, or product shall be the property
If T nant does provide Landlord with a written notice
requesting the the Damised Premises be rebuilt, then Landlord's
obligation she I be to proceed with reconstruction as provided in
this Article.
ARTICLE 23. EMINENT DOMAIN
Section 2 .01. Total Takinc. If the whole of the Demised
Premises shall be taken under the power of eminent domain by any
public, quasi- ublic or private authority, then this Lease shall
terminate and xpire as of the date of such taking, and any
unearned rent r other charges or rentals, if any, paid in
advance, shall be refunded to Tenant. Any taking by eminent
-33 -
domain shal be without prejudice to the rights of either Land-
lord or Ton nt to recover compensation and damages for such
taking by a inent domain from the condemning authority in accor-
dance with he terms hereof.
Sectio 23.02. Partial Taking. If any public, quasi-
public, or rivate authority shall, under the power of eminent
domain, mak a taking:
( ) resulting in the reduction, for a period of more
than ninety (90) days, of the size of the Demised Premises; or
( ) resulting in the reduction, for a period of more
than ninety (90) days, of the parking areas in the Shopping
Center, so a to reduce the amount of parking space mentioned in
Section 10.0 by greater than tan percent (10%) or resulting in
the lose, fo a period of more than ninety (90) days, of any
parking area located within a five hundred (500) foot radius of
the front en range to the Premises; or
(c which shall deprive the Demised Premises or the
shopping Cart er of adequate access to the principal roads or
streets serv cing the Shopping Center, including without limita-
tion the Ice of any necessary traffic control devices, other
than a tempo ary loss of such access for a reasonable short
duration; th n Tenant may, at its election, at any time within
ninety (90) ays after the taking, terminate this Lease by giving
Landlord wri ten notice of its election, so to do. Any taking by
eminent doma shall be without prejudice to the rights of either
Landlord or nant to recover compensation and damages for such
taking by emi ant domain from the condemning authority in accor-
dance with th terms hereof.
Section 3.03. Restoration of Shooninc Center and Adjust-
ment of Rent. If this Lease is not'terminated as aforesaid, it
shall continu in full force and effect, and Landlord shall,
after receipt of the award of compensation, at its expense, and
as speedily a circumstances permit, restore the remaining Prem-
ises, includi g any and all improvements made theretofore, to an
architectural unit suitable for Tenant's business and as nearly
as practicabl like the Premises as they were constituted before
said taking, nd Landlord shall restore the parking areas and the
shopping Cent r, as nearly as practicable, to the condition they
were in prior o such taking. The cost of Landlord's obligations
hereunder she 1 be limited to that portion of the net proceeds of
the condemnati n award actually received and retained by Landlord
which are allo able to the Demised Premises. The minimum rent
reserved in A icle 6, and any other charges or rentals payable
by Tenant here nder, shall be suspended until what may remain of
the Demised Pr miser, the parking areas and shopping center shall
be restored as aforesaid, but only to the extent that the Demised
Premises are n t, in Tenant's reasonable judgment, usable during
the period of estoration but provided that in all events Land-
lord is compen ated for all such rent and charges under rental or
business inter ption insurance (which insurance Landlord shall
be required to carry). After restoration, the minimum rent
reserved in Ar icle 6, and any other charges or rentals payable
by Tenant here nder, shall be reduced to a fraction of the former
amount which t e value of the untaken Premises (appraised after
the taking and the restoration) bears to the value of the Prem-
ises immediate before the taking.
It is understood and agreed that neither the Landlord
nor the Tenant hall have any rights in any award made to the
other by any cc damning authority. The Tenant may not join in
- 34 -
any condemn tion appeal undertaken by Landlord. Nothing herein
contained s all prohibit Tenant from prosecuting its own condem-
nation proc eding, independent of any claim of Landlord, for any
claim it ma have for the value of Tenant's trade fixtures, for
damages for interruption or dislocation of business in the
Demised Pr ices, and moving and remodeling expenses. It is
specificall understood and agreed that notwithstanding anything
set forth h rein to the contrary, Tenant shall have no right to
assert any laim for the value of the Lease.
ARTICLE 24. DEFAULT
Section 24.01. Tenant Defaults. If Tenant defaults (a) in
the payment f minimum rent, additional rent or any other charge
herein reser ed and fails to cure the default within ten (10)
days after r ceipt of written notice thereof, or (b) in the
performance f any of the other covenants or conditions hereof,
and fails to cure the same within thirty (30) flays after the
receipt of itten notice specifying the default or within such
additional p riod of time beyond said thirty (30) days as shall
be required y reason of strikes, lockouts, acts of God, govern-
mental restr ctions or prohibitions or other causes beyond
Tenant's rea onable control, or because such default is of such a
nature as no to be reasonably susceptible of being cured within
thirty (30) ays, whether similar or dissimilar to the foregoing,
in which can a reasonable time will be granted to Tenant, provi-
ded that Ten nt has promptly commenced and is diligently pursuing
the remedies necessary to cure such default within said thirty
(30) day per od, then at the expiration of said ten (10) days, in
the case of default described in 24.01(a), or at the expira-
tion of said thirty (30) days (or longer period as aforesaid), in
the case of default described in 24.01(b), the Landlord shall
have all rig s at law or in equity and may, at its option,
cancel this ase on not less than fifteen (15) days' notice to
Tenant witho releasing Tenant from its liability hereunder and
on the date s ecified in said notice the term of this Lease shall
terminate and expire, unless prior to the effective cancellation
date set to in such notice Tenant shall (a) cure such default,
or; (b) insti ute legal proceedings against Landlord in a court
of competent urisdiction to have a contested allegation of
default decid d by such court. If Tenant institutes legal pro-
ceedings pure ant to this section, Tenant shall proceed with all
due diligence to obtain a final, unappealable decision with
respect to th alleged default. when a final, unappealable
decision is r ndered, Tenant and Landlord shall comply with the
terms of same Should Tenant fail to comply with the terms of
such decision Landlord may cancel this Lease on not less than
tan (10) days notice to Tenant and on the date specified in said
notice, and a term of this Lease shall terminate and expire
and/or Landlo d may reenter the Demised Premises by summary
proceedings, ccording to applicable law. Upon any such Lease
termination, enant shall quit and surrender the Premises to
Landlord, but enant shall remain liable as hereinafter provided.
If a Lease shall have been so cancelled and termina-
ted by Landlo , Landlord may at any time thereafter resume
possession of he Premises by any lawful means and remove Tenant
or other occup nts and their effects and hold the Premises as if
this Lease had not been made, but Landlord shall not thereby be
deemed to have waived any other remedy for Tenant's default.
Section 21.02. Relettina by Landlord: Remedies. In any
case where Lan lord has recovered possession of the Premises,
Landlord may a Landlord's option cause the Premises to be redec-
orated and prepared for reletting, and may occupy or relet the
- 35 -
Premisas o any part thereof for a term or terms to expire prior
to, et tha sama time as, or subsequent to the expiration of the
term of ,h s Lease, at Landlord's option, and receive the rent
therefor, pplying the same first to the payment of such reason-
able expan a (hereinafter called "resumption expenses") as Land-
lord :Z pan e incurred in connection with said resumption of
possession, redecorating, or preparing for reletting, and the
reletting, ncluding, alterations, brokerage and reasonable
attorney's ass, and than to the payment of damages in amounts
equal to th minimum rent, additional rent and other sums herein
owed by Tan nt hereunder and to the reasonable cost and expense
of performa co of the other covenants of Tenant as herein pro-
vided; and enant agrees, whether or not Landlord has relet, to
pay to Land ord damages equal to the minimum rent, additional
rent, resum tion expenses and other sums herein agreed to be paid
by Tenant, ass the proceeds of the reletting, if any, as ascer-
tained from time to time, and the same shall be payable by Tenant
on the save al rent days or other payment dates specified in this
Lease witho the need for Landlord to bring separate actions
therefor. such reletting shall constitute a surrender and
acceptance o be deemed evidence thereof. If the Landlord shall
elect, pursu nt hereto, actually to occupy and use said Premises
or any part hereof during any part of the balance of the term as
originally f xed or since extended, there shall be allowed
against the. anent's obligation for minimum rent or damages as
herein defin d, during the period of the Landlord'a occupancy,
the reasonab a value of such occupancy, not to exceed in any
event the mi imum rent herein reserved and such occupancy shall
not be const ad as a release of the Tenant's liability here-
under.
Section 4.03. No Redemption. Tenant hereby waives all
right of red ption to which Tenant or any person claiming under
Tenant might a entitled by any law now or hereafter in force.
section 4.04. Riaht to Cure. Notwithstanding anything to
the contrary obtained in this Lease, Tenant shall not be deemed
in default un er this Lease unless and until the time to cure the
default as pr vided in this Article has passed without its being
cured.
section 4.
shall be file I
adjudicated
assignment for 1
based on the i i
property of th
charged within i
Landlord may t i
advance writte
Upon a termina
Tenant will at i
Landlord and r i
lord may forth
thereof, and r
force as may b
trespass, forci
such default by
Lease, may, at
the Demised Pr
effort, without
any term Landloi
deficiency, if I
rental obtained
to relet the Dei
05. Bankruptcy. If a petition in bankruptcy
y or against the Tenant, or the Tenant shall be
,rupt, or if the Tenant shall make a general
he benefit of creditors, or if in any proceeding
olvency of the Tenant a receiver of all of the
Tenant shall'be appointed and shall not be dis-
inety (90) days after such appointment, then the
minate this Lease by giving thirty (30) days
notice to the Tenant of its intention so to do.
on by Landlord as permitted in this Section,
nce surrender possession of the Premises to
love all of Tenant's effects therefrom, and Land-
th reenter the Premises and repossess itself
ove all persons and effects therefrom, using such
reasonably necessary without being guilty of
ale entry or detainer or other tort. Upon any
Tenant, the Landlord, without terminating this
Landlord's option enter upon and attempt to rent
ises at the best price obtainable by reasonable
advertising and by private negotiations and for
d deems proper. Tenant shall be liable for the
ny, between Tenant's rent hereunder and the
by Landlord upon reletting; if Landlord is unable
ised Premises, then Tenant shall continue to pay
- 36 -
the rent t Landlord as-provided under this Lease. Landlord
shall addi ionally be entitled to all rights afforded in law or
equity bee as of Tenant Ia default under this Lease. However, to
the extent a rights afforded in law or equity are inconsistent
with the h En
-stated terms relating to remedies available,
notices re iced and rights of the parties upon default, the
terms of th s lease shall control. Notwithstanding anything to
the contrar contained in this Section, neither bankruptcy nor
insolvency, nor an assignment for the benefit of creditors, nor
the appoin ent of,a receiver, shall affect this Lease or permit
its terming ion so long as the covenants on the part of the
Tenant to performed are being performed by Tenant or someone
claiming un er Tenant.
ARTICLE 25. SUBORnrNATION
Sectic 25.01. Subordination of Lease. Tenant shall, at
any time up request of Landlord, and provided the Landlord is
not then in efault of this Lease, execute for recording an
agreement wh reby Tenant will subordinate the estate hereby
demised to a y first or second mortgage or deed of trust now
existing or ersafter placed by Landlord upon the Demised Prem-
ises or any roperty of which the Demised Premises is a part
provided and upon condition that said agreement shall contain
specific pro isions against the disturbance of the possession of
Tenant and o the parking and other rights of Tenant as herein
contained an the following additional provisions:
(a) So long as Tenant continues to pay the rent as in
said Lease r served and otherwise complies with the terms and
provisions o the said Lease, the right of possession of Tenant
of the Demis Premises, the rights to the use of the parking and
other common reas hereinbefore described, and the terms and
provisions of said Lease shall not be affected or disturbed by
mortgagee in he exercise of any of its rights under said mort-
gage or the b nd or debt secured thereby, or otherwise by law
provided;
(b) In the event that mortgagee comes into possession
of or ownersh p of the title of the Demised Premises or of said
common areas y foreclosure of the said mortgage, or by proceed-
ings on the s id bond or otherwise, said Lease and all rights of
Tenant thereu der shall continue in effect and shall not be
terminated by any of said proceedings;
(c) In the evint that said Premises or said common
areas are co18 or otherwse disposed of pursuant to any right or
any power cont fined in the said mortgage or the bond, or as a
result of proc edings thereon, the purchaser of said Premises or
said common ar as at such sale, or any person acquiring title
through or by irtue of said sale, shall take title subject to
said Lease, an all rights of Tenant thereunder;
(d) If the Demised Premises is damaged by fire or
other casualty or to the extent that Landlord is required to
restore under his Lease) if a portion of the Shopping Center
and/or the Dim Bed Premises is taken in eminent domain proceed-
ings, for whic under any of the insurance policies or condemna-
tion awards th efor the lose fie payable to the mortgagee, and
provided that t is Lease continues in full force and effect and
the Tenant is n t in default beyond any applicable cure period,
mortgagee agree that such insurance funds or condemnation awards
when payable to it, will be made available for the purpose of
repair or rebui ding of the Demised Premises, and/or Shopping
-37 -
Center (to the extent that Landl?,3 :_ required to restore under
this Lease as provided in said Lease;
e) Thia Agreement shall be binding upon and inure to
the benefi of mortgages, Landlord and Tenant, and their respec-
tive heirs executors, administrators, successors and assigns.
enant :9;0;:r that if the-holder of any mortgage or if
the purcha rat eclosure sale. or at any sale under a
power of sa a contained in any mortgage shall request, Tenant
will attorn to, and recognize such mortgages or purchaser as the
Landlord un er this Lease for the balance of the term of this
Lease, subj ct to all of the terms of this Lease.
ndlord and Tenant agree that the form of Subordina-
tion, Attor ment and Randisturbance Agreement attached hereto as
Exhibit "F" substantially satisfies the terms of this section.
Sectio 25:0 2. Existing Mortgages. In the event that the
Shopping Ce eror any portion thereof, or the Demised Premises
shall be sub ect'to any existing mortgage or other lien as of the
date of exec tlon oP this Lease, Landlord shall obtain and
deliver to T nant the agreement of each holder of such mortgage
or lien simultaneously with the execution hereof in the form
hereinabove rovided.
Section 25.03. Definition of Mortgage. The word "mortgage"
as used here An includes mortgages, deeds of trust or other
similar inst nts, and modifications, extensions, renewals and
replacements ereof, and any and all advances thereunder.
ARTICLE 26. SELF-HELP
Section
performance o
provision in
observed, the
claims for br
is reasonable
shall be deem
for emergenci
defaulting pa
other for any
or contractual
rate then in e
Landlord may c
Tenant may fled
first and then
provided, howe
Minimum Rent i
default even i
Section 27
Tenant paying t',
terma, covenant
be observed and
hold, occupy an
ances thereto (
facilities of t]
tion from any p
as to any porti.
damage or destri
.01. If Landlord or Tenant shall default in the
observance of any covenant, condition or other
is Lease contained on its part to be performed or
ther party may, at its option, without waiving any
ch of agreement, and after written notice which
nder the circumstances (fifteen (15) days notice
the minimum reasonable notice in all cases except
cure such default for the account of the
y, and the defaulting party shall reimburse the
easonable amount paid and any reasonable expense
liability so incurred, with interest at the prime
fact as of the date the default notice is given.
llect any such amount as additional rent, and
ct any such amount from Bonus Rental payments
up to lot of Minimum Rent per month in that order,
er, that Tenant may commence the deductions from
the first month following its cure of Landlord's
no Bonus Rent is then due.
ARTICLE 27.
01. Landlord covenants and agrees that upon
e rents and observing and performing all the
and conditions of this Lease on Tenant's part to
performed, Tenant may peaceably and quietly have,
enjoy the Demised Premises and all the appurten-
ncluding without being limited to the common
e Shopping Center) without hindrance or molesta-
rson claiming by, from or under Landlord, except
n taken under the power of eminent domain or by
etion as a result of a casualty.
- 38 -
ARTICLE 28.
Sects n 28.01. Good Title. Landlord covenants, warrants
and reprea is to Tenant as follows:
( ) It is the owner in fee simple absolute of the
Shopping Ce ter and has good and marketable title thereto subject
to those ma ters set forth in Exhibit "G" hereto (the "Permitted
Encumbrance
( ) attached hereto as Exhibit "G" is a copy of Land-
lord's titl insurance policy dated March 25, 1991 and updated
April 12, 1 91. Landlord shall further update this policy to the
date Landlo and Tenant execute this Lease and said update shall
be added to xhibit "G" provided that it is satisfactory, in all
respects, to the Tenant.
(c Landlord has the full right and lawful authority
to execute t is Lease for the term, in the manner, and upon the
conditions a d provisions herein contained;
(d) to the best of Landlord's knowledge after reasona-
ble investig tion, there is no deed.or lease restriction or other
legal impedi nt (including without limitation any zoning or
other ordina e, law or regulation) to the construction of the
Shopping Cent r or to the use thereof for shopping center pur-
poses, or to he granting of the easements as herein provided for
the use of th parking areas, access roads and other common areas
and facilitie , or to the use of the Demised Premises for the
purposes for hich they are let hereunder. As soon as reasonably
possible afte the date of this Lease, but in any event prior to
the commencem nt of construction by Landlord as required pursuant
to Article 8 ereof, Landlord shall furnish Tenant with copies of
valid buildin permits required for the construction of the
Demised Premis s and the common areas within the Shopping Center.
In the event a y such legal impediment to the construction or use
of the Demised Premises as a food supermarket or any other retail
use shall axis , the Landlord shall use reasonable efforts to
cause the remo al of such legal impediments, at Landlord's sole
cost and expen e.
Section 2 .02. Zoning. Laws. etc. This Lease, and the
respective rig s and obligations of Landlord and Tenant here-
under, shall b subject to and conditioned upon Tenant's con-
tinued ability o use the Demised Premises for a supermarket. If
at any time Ten nt cannot use the Premises for a supermarket
because of a su ervening legal impediment (other than a temporary
deprivation not exceeding six (6) months) through no fault or
neglect of Tana t, then in such even Tenant shall have the right
to cancel this ease upon giving to Landlord thirty (30) days
prior notice, a companied by appropriate evidence from the con-
sulted authorit as that Tenant has, through no fault of Tenant,
been denied the as of the Demised Premises and the respective
rights and obli tions of the parties hereto shall be null and
void and of no f rther force and effect, provided, however, that
Landlord shall h ve the right to nullify Tenant's cancellation
notice by giving Tenant notice that Landlord will appeal the
actions which re ulted in the denial of Tenant's use as a super-
market, in which event Tenant's right to cancel shall be sus-
pended until exh ustion of all available appeals, during which
period of nonuse the minimum rent shall abate.
ARTICLE 29.
- 39 --
Secti 29.01. In any case where the time for either party
to perform ny act or thing is limited hereunder, the time for
the perfo nee thereof shall be extended (except as specifically
provided in Section 5.05(a)) by a period equal to any unavoidable
delay cause by or resulting from weather conditions, act of' God,
war, civil ommotion, fire or other casualty, labor difficulties,
shortages o materials or equipment, governmental laws or regula-
tions, the ct or default of the other party, of other causes
beyond such party's reasonable control, whether similar or dis-
similar to a foregoing and whether such time be designated by a
fixed date, a fixed time or a "reasonable time". The party so
delayed she 1 give written notice to the other party within five
(5) days of or becoming aware of the delay. Nothing contained in
this paragr ph shall be deemed to excuse or permit any delay in
the payment of any sums of money required hereunder or any delay
in the cure of any default which may, be cured by the payment of
money.
ARTICLE 30. HOLDOVER
Section 30.01. If Tenant continues in occupancy of the
Demised Prom sea after the expiration of the term, or of an
extended to , such occupancy shall continue as a tenancy from
month to Mon upon the terms, conditions and provisions in
effect at th end of the term, or extended term, as the case may
be. During ny such term of occupancy the minimum rent payable
by Tenant sh 11 be at the rental rate in effect at the and of the
expired term the rental to be prorated and payable for the
period of su h occupancy.
ART CLE 31. NO WAIVERS AND CUMULATIVE REMEDIES
Section 31.01. Waiver. Failure of either party to complain
of any act o omission on the part of the other party, no matter
how long the ame may continue, shall not be deemed to be a
waiver by no party of any of its rights hereunder. No waiver
by either pa y 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 revisions of this Lease or a consent to any subse-
quent breach f the same or any other provisions. If any action
by either par y shall require the consent or approval of the
other party, he other party's consent to or approval of such
action on any one occasion shall not be deemed a consent to or
approval of a y other action on the same or any subsequent
occasion.
Section 1,02, Cumulative Remedies. Any and all rights and
remedies whic either party may have under this Lease or by
operation of w, either at law or in equity, upon any breach,
default and/o termination shall be distinct, separate and cumu-
lativa and sh 1 not be deemed inconsistent with each other; and
no one of them whether exercised by said party or not, shall be
deemed to be i exclusion of any other; and any two or more or
all of such ri hts and remedies may be exercised at the same
time.
ARTICLE 32. PAYMENTS OR WORK UNDER P
Section 3:
dispute shall
by one party t,
against whom V
right to make I
be regarded as
right on the p+
.01. Payments Under Protest. If at any time a
rise as to any amount or sum of money to be paid
the other under the provisions hereof, the party
e obligation to pay is asserted shall have the
ayment "under protest" and such payment shall not
a voluntary payment, and there shall survive the
rt of said party to institute suit for the
- 40 -
recovery of uoh sum, and if it shall be adjudged that there was
no legal obl gation on the part of said party to pay such sum or
any part the eof, said party shall be entitled to recover such
sum, or so mu thereof as it was not legally required to pay
under the pr visions of this Lease, with interest thereon at the
prime-rate.
Section 32.02. Work Under Protest. If at any time a dis-
pute shall a ise between the parties hereto as to any work to be
performed by either of them under the provisions hereof, the
party agains whom the obligation to perform the work is asserted
may perform ch work and pay the cost thereof "under protest"
and the perf once of such work shall in no event be regarded as
a voluntary rformance, and there shall survive the right on the
part of said arty to institute suit for the recovery of the cost
of such work, 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 s it was not legally required to pay under the
provisions of this Lease, with interest thereon at the prime
rate.
section 2.03. Recovery of Payments. Whenever a payment is
made or work s done "under protest", as in this Article pro-
vided, the pa ty doing so shall before making any such payment or
doing any suc work, notify the other party in writing that it is
doing so "und r protest". Landlord may collect any sum it is
entitled to u der this Article, as additional rent, and Tenant
may, if it ch oses, deduct any such sum., together with interest
thereon at th prime rate, from Bonus Rental payments first and
then up to 10 of Minimum Rent per month in that order, provided,
however, that Tenant may commence the deductions from minimum
Rent in the f rat month following the month in which payment was
made or work one under protest even if no Bonus Rent is then
due.
ARTICLE 33.
Section 3 .01. All notices and other communications author-
ized or requir d hereunder shall be in writing and shall be given
by mailing the same by certified mail or registered mail, return
receipt reques ed, postage prepaid, or by sending the same by
overnight tour or, proof of receipt required. Any such notice or
other communic tion shall, unless otherwise specifically provided
herein, be des ed to have been received by the party to whom such
notice or othe communication shall be properly addressed three
(3) days folio ing the date when deposited in the United States
mail as afores id, or one (1) day following the date when given
in a timely ma ner to an overnight courier, unless the intended
recipient can emonstrate that it failed in fact to receive such
notice. If in ended for Landlord the same shall be mailed to the
Landlord, c/o S Development company at 410 Asylum Street, Suite
215, Hartford, Connecticut 06103 or at such other address as
Landlord may h reaftsr designate by.notice to Tenant; and if
intended for T pant, the same shall be mailed to Tenant at 1149
Harrisburg, Pi e, Carlisle, PA 17013, Attention: Real Estate
Department, or at such other address or addresses as Tenant may
hereafter des, ate by notice to Landlord.
ARTICLE 34. SEVERABILITY
Section 34.01. If any term, covenant, condition or provi-
sion of this Le as or the application thereof to any person or
circumstances s all, to any extent, be invalid or unenforceable,
- 41 -
the remainde of this Lease, or the application of such term or
provision to persons or circumstances other than those as'to
which it is aid invalid or unenforceable, shall not be affected
thereby, and each term, covenant, condition and provision of this
Lease shall a valid and enforceable to the fullest extent per-
mitted by la .
ARTICLE 35. OWN COST AND EXPENSE
Section 35.01 Wherever in this Lease Landlord and Tenant is
required or ermitted to do any work, or perform any act, such
work and suck. act shall be done or performed at the sole cost and
expense of t e party doing or performing the same except as
specifically rovided otherwise.
ARTICLE 36. ENVIRONMENTAL NATTERS
Section 6.01. Environmental Report. Landlord shall, at
Landlordle a ense, furnish to Tenant a report from a recognized
testing comps y reasonably satisfactory to Tenant showing that
the Shopping enter contains no hazardous substances which would
subject an er to clean-up costs under the Comprehensive Envir-
onmental Rasp nee, Compensation and Liability Act (42 U.S.C. Sec.
9601-9675) as amended by the Superfund Amendments and Reauthori-
zation Act of 1986. Landlord shall furnish such report to Tenant
within thirty (30) days from the date hereof.
Section 6.02. Compliance. With respect to the Shopping
Center, Landl rd and Tenant represent to each other that they
have at all t mes in the past complied, and will at all times
during the to hereof comply, at their own expense, and in all
respects with all present and future applicable laws (whether
statutory, co on law, or otherwise), rules, regulations, orders,
permits, lice ses, ordinances, judgments, or decrees of all
governmental thorities (whether federal, state, local, or
otherwise), i luding, without limitation, all laws regarding
public health r welfare, environmental protection, water and air
pollution, co osition of products, underground storage tanks,
toxic substan s, hazardous wastes, hazardous substances, hazard-
ous materials, waster or used oil, occupational health and
safety, and/or nuisance, trespass, and negligence. Without
limiting the g nerality of the foregoing, and except as otherwise
set forth in t is Lease, Tenant shall also procure each and every
environmental ermit, license, certificate or other authorization
now or hereaft r required in connection with the lawful and
proper use of a Demised Premises.
7:n:# covDenants, represents and warrants that Tenants
intended usthe emised Premises will comply with, and Tenant
will not viola a in connection with the use, maintenance or
operation of t e D,,7::;e
mised Premises and the conduct of the business
related theret , any applicable federal, state, county or local
statutes, laws regulations; rules, ordinances, codes, standards,
orders, licena s and permits of any governmental authorities
relating to an ironmental matters (being hereinafter collectively
referred to as he e Laws"), including, without
limitation, (i) the Clean Air Act, the Federal Water Pollution
Control Act of 972, the Resource Conservation and Recovery Act
Of 1976, the c prehensive Environmental Response, compensation
and Liability t of 1980, and the Toxic Substances Control Act
(including any mandments or extensions thereof and any rules,
regulations, at ndards or guidelines issued pursuant to any of
said Environmen al Laws), and (ii) all other applicable environ-
mental standard or requirements.
- 42 -
Sectio 36.03. Absence of Claims. Landlord represents to
Tenant that there ie not now, to Landlord's knowledge, any claim,
suit, litig tion, governmental or administrative proceeding, or
action by a y private or public individual or entity (including,
without lim tation, any agency of federal, state or local govern-
ments) pend nq or threatened against Landlord or any corporation,
partnershiI% or any other person or entity related thereto, or
any agent, loyee, officer, director, or partner of Landlord or
any other person or entity, that in any manner affects,
concerns, o arises from Landlord's use or ownership of the
Shopping Ce ter, including, without limitation, all laws regard-
ing public ealth or welfare, environmental protection, water and
air polluti n, composition of products, underground storage
tanks, toxi substances, hazardous wastes, hazardous substances,
hazardous m terials, waste or used oil, occupational health and
safety, and or nuisance, trespass, and negligence.
Sectio 36.04. Demised Premises. Landlord and Tenant agree
not to use permit the use of asbestos or any other presently
known hazer us, toxic or contaminated materials in the construc-
tion of the uilding which will contain the Demised Premises, or
in any repai s or improvements subsequently made thereto.
section 36.05. Indemnity. In the event of any claim, suit,
litigation, overnmental, administrative, or private proceeding
or action ag inst Landlord or Tenant, with respect to or concern-
ing in any w y any hazardous wastes, hazardous substances,
hazardous ma erials, waste or used oil, underground storage
tanks, or an other pollutants or contaminants generated at or
placed on th Shopping Center prior to or during the term of this
Lease, each arty shall indemnify and hold harmless the other
party from a 1 costs, damages, attorney's fees, expert fees,
removal and &medial costs, and all other costs, fees, and expen-
ses relating to the presence of the aforementioned materials at
the Shopping Center caused by the indemnifying party or resulting
from a breac by it of this Article.
ARTICLE 37. MISCELLANEOUS
Section 37.01. Construction. This Lease shall not be
strictly construed against either Landlord.or Tenant.
Section 7.02. Gender. Whenever the context shall require
or admit it, he singular number shall be held to include the
plural numbs , and vice versa, and words of any gender shall be
deemed to inc ude any other gender.
Section 7.03. Dates. Whenever a specific data mentioned
in this Lease is not a business day, then it shall be taken to
mean the next business day.
Section 7.04. Headings. The marginal. and index headings
in this Lease are used only for convenience in finding the sub-
ject matters, and are not to be taken as part of this lease, or
to be used in determining the intent of the parties.
Section
otherwise ex
covenants, a:
and inure to
parties
05. Successors and Assians. Unless herein
sly provided, this Lease and all the terms,
onditions hereof shall apply to, be binding upon
benefit of the heirs, executors, administrators,
successors and assigns, respectively, of the
43 -
ARTICLE 38.
Saction 38.01. Concurrently with the execution of this
Lease, the p rtiea will execute in recordable form, n Memorandum
of Lease in he form of the instrument attached hereto as Exhibit
term of if the precise dates of commencement and termination of the
ter this Lease are not known at the time of the execution of
said Memoran um of Lease, the parties will, as soon as they are
known and at the requeat of either party, execute a supplemental
instrument i recordable form setting forth the exact dates of
commencement and termination of the term. Landlord and Tenant
will pay, in equal shares, all state, local and any other realty
transfer or ocumentary taxes imposed as a result of the execu-
tion, dalive y and acceptance, and/or recording of the Memorandum
of Lease, an within thirty (30) days from the date hereof Land-
lord will da ivar to Tenant a recorded counterpart of the Memor-
andum of Lea a indicating payment of said realty transfer or
documentary axes.
ART CLE 39. ENTIRE AGREEMENT - INTERPRETATION
Section 9.01. This instrument contains the entire and only
agreement be een the parties, and no oral statements or repre-
sentations or prior written matter not contained in this instru-
ment shall he a any force or effect. This Lease shall not be
modified in a y way except by writing executed by both parties.
The laws of t e state in which the Shopping center is located
shall govern he validity, interpretation, performance and
enforcement o this Lease.
ARTICLE 40. BROKER'S COMMISSIONS
Section 0.01. Landlord and Tenant each represent to the
other that th re was no broker instrumental in consummating this
Lease, and th t no conversations of prior negotiations were had
with any brok r concerning the leasing of the Damised Premises.
Each party ag sea to defend, indemnify and hold the other party
harmless agai t a breach by it of the foregoing representation.
ARTIC E 41. CERTIFICATES OF Ln HDLORD AND TENANT
Section 4 .01. Each party agrees at any time and from time
to time upon n t less than twenty (20) days' prior notice by the
other party to execute, acknowledge and deliver to the other
party a statem nt in writing (which statement shall be prepared
by the party r questing it and shall be completed without the
presence of bl nk spaces) certifying that this Lease has not been
modified and i in full force and effect (or if there have been
modifications, that the Lease is in full force and effect as
modified and a ating the modifications), and the dates to which
the minimum re t, additional rent and Bonus Rent have been paid,
and stating wh ther or not the other party is in default in
keeping, obse ing or performing any term, covenant, agreement,
provision, con itions or limitation contained in this Lease and,
if in default, pacifying each such default, it being intended
that any such atement delivered pursuant to this Section may be
relied upon by a other party or any prospective purchaser of
the fee or any ortgagee thereof or any assignee of any mortgagee
of the fee of t e Demised Premises.
ARTICLE 42. DISCHARG
Section 42 01. Tenant shall not create or permit to be
created or to r main, and shall discharge or adequately bond any
lien, ancumbran a or charge levied on account of any mechanic's,
- 44 -
laborer's or
encumbrance 4
thereof. Tel
every contra4
be done upon
Such waiver j
upon the Dam;
materialmen's lien which might be or become a lien
r charge upon the Demised Premises or any part
ant shall require the filing of a waiver of liens by
for with whom it contracts for work or materials to
or used in connection with the Demised Premises.
hall be filed prior to the commencement of any work
sed Premises.
43. DEFINITION OF ADDITIONAL RENT
Section
Lease, it is
portionate sh
Maintenance a
pay hereunder
accrue therso
event of non-
have all of t
accrue to the
3.01. Without limiting any other provision of this
xpressly understood and agreed that Tenant's pro-
se of real estate taxes, and Costs of Operation and
d all other charges which the Tenant is required to
together with all interest and penalties that may
shall be deemed to be additional rent, and in the
ayment thereof by the Tenant, the Landlord shall
e rights and remedies with respect thereto as would
Landlord for non-payment of minimum rent.
ARTICLE 44. GUARANTY
Section 4.01. Koninklijke Ahold n.v. has hereunto guaran-
teed or will ereafter guaranty this Lease in accordance with the
form of Guars ty attached hereto as Exhibit "I".
45. SEWER DISCHARGE LIMITATION
Section
from the Demi
constructed b
within which
ants and agre
other person
shall not exca
"Reserved Cape
city shall be
Tenant elects
Article 9 here
sewage dischar,
year will be b;
consecutive mo;
of sewage flow
shall be deter
Premises as ev.
meter monitorii
excluding any i
systems, fire 1
vided that the
submetered. Oz
gallon of sewac
Landlord harmle
(including reae
Landlord as a i
a quantity of e
Reserved CapacJ
x.01. Tenant shall be entitled to discharge sewage
:d Premises into the sanitary sewer system to be
Landlord for the benefit of the Shopping Center
e Demised Premises are located, but Tenant coven-
that such discharge (whether by Tenant or any
• entity possessing or using the Demised Premises)
d an average of 5,000 gallons per day (the
ity"); provided, however, that the Reserved Cape-
ncreased to 5,500 gallons per day in the event
o expand its demised store building pursuant to
f. The average number of gallons per day of
ad from the Demised Premises for each calendar
sod on the average daily flow during the three (3)
the in any calendar year with the highest volume
from the Demised Premises. "Average daily flow"
ined from the water consumption of the Demised
danced by meter readings taken from the water
g water service to the Demised Premises, but
star readings for water used in fire sprinkler
ydrants, and/or site landscaping irrigation pro-
aforesaid excluded uses are separately metered or
e gallon of water consumption shall equal one
a discharge. Tenant shall indemnify and hold
as from any and all claims, liabilities and costs
Dnable attorneys fees) made against or incurred by
ssult, directly or indirectly, of the discharge of
swage from the Demised Premises in excess of the
- 45 -
IN WITN SS WHEREOF, the parties hereto have executed this
Lease, the d y and year first above written.
LANDLORD:
WITNESS (ATT ST): SILVER SPRING CENTER LIMITED
PARTNERSHIP,
BY:
ABS DEVELOPMENT COMPANY, its
General Partner
By:/ J l
zl>ertar T. SamuelS
Its Chief Executive Officer
SEAL)
TENANT:
GIANT FOOD STORES, INC.
By:
Richard E. Welsh
Its Director of Real Estate
EAL)
- 46 -
Ima<-<o-r.rr? t ;Old U.rrL"VtHLIM HHMMISHI.fili ?o17 232 6507
4
5C44sDuLE
• Irt?.',''II+4f A:'III ;:f 1'Ie 1l li?r'1..,. Jehl.,•)IrWQAIiIIiY ''l'T':?r.C,,I
„,?r,l •,;'JI UP IlIV rl!IF '?(?o YI MI?PII Vf In.?I'1:1!1
e"u?et t'. 'I )d 11 li ?: . ? r ?Y" .v"n,•p; 1`: ,i')r ?'' I (r, =
IIC,i -•-HEMOnANQUH OF, LEASE L'+.'^" ..' .. ..... ... .
Ti11S MEMO CUM OF LEASE Se made as of this 29 qL day of
may, 1992, batwe n SILVER SPRING CENTER LIMITED OUMVERSHIP, a
Connecticut limi ad partnership, C/o ADS Development Company, its
general partner, having an office at 410 Aaylum Street, Suite
215, Hartford, C nnecticut 06107 ("Landlord"), and GIANT FOOD
STOn ES, INC., a elaware corporation, having an office At 1149
Harrisburg Pike, P.O. Box 249, Carlisle, Pennsylvania 17017
("Tenant").
WITNESSETH
Landlord &0 Tenant desire to eat forth certain Information
with respect to t1he loeee hereinafter described (the 'Lease"):
1. The na of theLandlord in the Lease is Sliver Spring
center Limited Pa tnershlp, a Connecticut limited partnership.
2. The name of the Tenant in the Lease is Giant Food
Stores, Inc., e Delaware corporation.
7. (e) The address of the Landlord as get forth in the
Lassa is C/o ADS evelopment Company, 410 Asylum Street, Suite
215, Hartford, Co neotlcut 06107.
(b) The add ass of the Tenant as set forth in the Lease is
1149 Harrisburg P ke, P.O. Box 249, Carlisle, Pennsylvania
17012.
4. The dat of the Lease is Hayal , 1992.
5 (a) Th deeeription of the Demisad Promises no set
forth in the Leas ie a portion of the shopping Center located in
Silver Spring Tow ship, Cumberland' County, Pennsylvania, which
Demised Promises hall contain approximately 57,800 square feet
of gross leasable area, and shall be located as outlined and
cross-hatched on xhibit "A" and labeled "Giant Store". The said
Exhibit "A", whit is attached hereto and incorporated heroin by
reference, is a a to plan of the shopping center erected or to be l,?
•racted upon the emises described by mates and bounds in r
Exhibit "BI', att4 ad hereto and made a part hereof. SE
(b) In add it on to the Demised Promisee as to which Tenant H'
N
is entitled to exc ue ive possession, Tenant is also entitled to
the non-excluslva es of all ouch automobile parking areas,
driveways, footway and other facilities at or upon the Shopping
Center designed to common use, together vith all the
appurtenances, if ny, now or hereafter belonging thereto. ra
N
(c) Tenant h a also reserved the right to expand its
Demised Premises i to that area adjoining the Demised Premises
which Is outlined nd labeled '-Expansion Area" on Exhibit "A"
attached hereto, a mmencing on the 5 1/2 year anniversary of the
Commencement Date f the term of the Lease and on certain
anniversaries they after as more particularly set forth in the
Lease.
6. The term f the Lease shall commence on the
'-Commencement Date", which is defined in the Lease to mean the
earlier of,(i) the ate on which Tenant opens for buaineee in the
Demised Promises, o (11) the next day after the date on which
the last of certain conditions hes been satisfied, all as more
rartioulwrly sat to th in the Lease.
r
P.OV1O
.I e.
:?, Flo
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y 9 0
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v
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re9mMlp al S:
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o.?U.L- -YLAmi 6S P
ROW P. Zlaolw
Cumb. Ce. bill. W. Ave.
Al' rn'4>()
tiller ti?(i
601,991 Mel Cumb. Co., h. ?y
noel WIN Nrmw 11011
bete •?> ml. 6 5..? u
n.boA P. 7461.r
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(21
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232 6507 P•03i10
7. The term of the Lease is twenty (20) years, beginning
on he Commencement Data as above defined, except that if such
commencement Date shall fall on a day other than the first day of
a nth, then the period between such commencement Date and the
fi et 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
to shall end at noon on the day before the twentieth (10th)
an iversary of the Commencement Date, but If the Commencement
Date is not the first day of the month, than the term shall and
at noon on the last dry of the month in which shall fall the said
an ivareary of the Commencement Date', subject to the renewal
ri hts not forth in Paragraph s below.
V. The Tenant has the right to renew and extend the term
of the Lease for six (6) additional terms of five (5) years each.
9. The Landlord has agreed not to permit the operation of
in business uses within the shopping center or within a
In distance from the Shopping Center. A copy of these
sions is attached hereto as Exhibit ?-C" and made a part
lo. The Tenant does not have any right of first refusal to
hase the Damised premises or any part thereof.
11. Nothing contained herein is intended to, nor shall it
fy, amend, supersede or otherwise affect the terms and
isions of the Lease. The parties hereto by reference
rporate herein all the torms, covenants and conditions
aired in the Lease, and agree to observe, conform to and
ly with such terms, covenants and conditions on the part of
to be observed and performed. For a complete statement of
rights, privileges and obligations created under and by the
e and of the terms, covenants and conditions contained
ain, reference Is hereby made to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have caused this
random of Lease to be duly executed as of the day and year
t above written.
LANDLORDS
SILVER SPRING CENTER UNITED
PARTNERSHIP
By:
ADS Development Company, Its General
Partner
By
Name:"' Ro Samue s
bb
Title: Chief Executive Officer
TENANT:
GIANT FOOD STORES, INC.
C21
By
Ramat Richard E. Welsh
Title: Director of Real Estate
- ] -
x0K 120 PAu 8J7
CONNONwFhLTH OF pENN9YirVhN1*-
/ 65:
COUNTY OF J vl-
I1I LJC IyJy'/
juef
on this, he )_5'r day of May., 1992, before me, a Notary
Public, the un arsigned officer, personally appeared ROBERT T.
SAmUELS, who a knowledgad himself to be the Chief Executive
officer of ASS Development Company, General Partner of Silver
Spring Center invited Partnership, a Connecticut limited
partnership, e d that he as such corporate officer, being
authorized to to cc, executed the foregoing instrument for the
purpose tharel contained by signing the name of the corporation
by,himself atl hief Executive officer.
IN WITNES WHEREOF, I have hareunto set my hand and official
seal
H. 04/i0
f•I
noox 420 JAV 8,J8
Wel
of
the
Bata
.`n r,.,r. .r rir rnn?r?•uuVr?4
ru e?? oonr r. n'Jiiu
WEALTH OF PENNSYLVANIA ,
SS:
V Melt/ (i1 a))
n this, the ,2X{? day of41ey, 1992, before me, A Notary
the undersigned officer, personally appeared Richard E,
who aoknoWledged himself to be the Director of Real Estate
nt Food Stores, Inc., a corporation, and that he as such
ate officer being authorized to.do so, executed the
ing instrument for the purpose therein contained by signing
me of the corporation by himself as Director of Real
IN WITNESS WNERr0r, I have hereunto set my hand end official
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?euth.rn line al )f M. If Let 11, Meru, 10 fe rt•f If aImtoo 30
eea.nd@ lee, a dirtthed of 117.10 toot to a pent on the I" Voter
nark of the een"&rolhdt Cr4okl None* long Ihd I., v.ter Suitt Of
the len.deauln.e C4ak. South 46 4.9Te. 91 Vlnut . 01 6"OnSo
left, . diatom*. of 44,33 Pet too taint in the ue.e.rn line of
laM6 ner• or Let. of Chr-algae f. and 4r" t, Th...11 then0. $10"
N. Wrtorn If.. of lend. no- or Iota of tarlatlan f. and Oorah 1.
Thor. e, feuth 00 d.gr4a. It .lnuoor 04 ele.ndr Wool, a 416"met of
131.10 Pat to • point on the southern rllht-of-way Ilse of Creek
Seed, thohea 410 mg the Oeothalh Vilht-of-Vly line of Creek Reed,
Werth 91 d•gr..4 )I minute. 11 eoeo,d, art, t dLt Leo of )01.11
Pat to •palntl than...lanI es... W.ru, /t HOrees alnv". gi
aaea.do U.t. a 4let.ne. at 31.10 feet to a pint on N. W.9%.M
pllht-.f-vay Ilne of Silver Drive; Ntn.9 along ths western rlght-
6f-vry line of Ollver Drive, South 13 d•gr... 31 .lnva.d Of ae0andf
Get, o dlottne of 410.11 Pot " a point an the Perthorm flytt.
of-nr lln• of Silver pflv6l thende along the rar".rn ILA. at IM
et fat 07 N. fellaving .our... and Urteumaeas
11 Perth s0 d.v.e. 06 elnut.. fee e•bbid. V..i. . Aloes..
.t 110.12 (.at to . "Lot, . .,
7) Porte 00 46Roel be olnutoo 0o ..a.m. t."' . 4lrcane.
of 77.71 feet to a point,
1) P.rtn ere d.gr..e 06 hUuted ad I.,.Ali Volt, . diets nb.
of 171.07 feet to a paint,
41 South 00 degree 00 a"utol 00 e.eande lees, a diets",
at 77,71 Pet to • point,
1) North se d6grsea 00 Minutes 00 ueend$ Vast, • 4/4ttn94
of 110.14 feet to 1 Pa Lnt,
4) Perth 06 d.gr.e. 60 olnut.r 06 "..A" Wet. 1 dtotanee
o( 44.11 feet t0 6 Pd Lmt,
7) Sou" 11 URooO 30 1109tat 10 Ouvn4. Pert, a dletameo
of 401.41 foot to a ?01nt1
th.hee oleo W. PbtarR line at laM, of ,at 11, 1-" Da d./TeM
S4 61nYtee ?0 legend@ left, 0 di.tMb. of 013.07 let to 4 point en
N. POr .e It.. If Sand of Out por6.1 041 theneo along tbo
Porth.rn time of land of cut Potool Mid, South I1 d=ean.. 14 olnute0
)0 O"Ondi Wet, a dldtenoe of 17111 foot " e ?glnt to the
Wor SM 11.1 of land of Olt IsrC4I f), theme. 11.4 N. pf-therm
lln* of land of out Verbal f), Sgvrh II datreu ll aLAutoo 4/,
oedema. Yee, o Mile Cane. at 347,10 feet to a paint, or It POIAC
P,e ia- matt, s 6lotoneo of 147.10 fast a* i rAnt, la11 POW
Y\?P , fla.$ of b.0lnnlnq. [21
Mr7AINIOG 1).tt. AatY.'
rxhi>it 0
0009 ? 7. U pm 831
I., cV vaoa
Section
Shopping Can
reasonable e
sified group
such as will
shopping Cori
retail sales
this stated
investment i
this Lease,
by strict ad
furtherance
oration the
t.lon of its
and agrees t
thereof, no
or hereafter
S1;,gppinq can
distance the
by automobil
ownership in
wholesale),
fresh fruits
The above-ra
three (I) mi
mortgagee wh
action or ds
delicatessen
not constitu
Landlord fuCt
building(s),
and/or constr
for the opera
store, dolls
for a health,
designated a
an Exhibit "
tad by and s
church, skat
and servic"'
arcade, bing
market or fun
of businessa
of carvicsc
term hereof
market or fo
of six (6) m
Section 6.02
null and void
'..u'e'alra,mi+-in hsptrt)SHURG 917 232 6507 P.08i10
1x.01. J?pd,lSr[(_',p.?Py€D,AILt.A• In establishing the
4oY and select hag tenants for it, Landlord shall use
'forts to obtain and maintain a balanced and diver-
.ng of sound retail stores, merchandise and services
maximize the attraction and drawing power of the
:er as a whole, and consequently, its aggregate
Tenant hap entered into this Lease in reliance on
,olicy and objective, and Tenant's substantial
i the premises, as well as the rental agreed to in
basumas a level of sales that would be generated only
%erenee to this atated policy and objective. In
K this policy and objective, and taking into consid-
imited aide of the shopping center and the propor-
pace to be occupied by Tenant, Landlord covenants
st, for the term of this Lease and any extension
tore(,) and/or building(s), or any part of same, now
acquired and/or constructed by Landlord within the
or or upon any property within a three (3) mile
efrom (as measured by the shortest driving distance
from the Premise c) in which the Landlord has an
erect shall be used for the sale (at retail or
or off-promisos consumption of groceries, meats,
vegetables, frozen foods and deli/bakery products.
erenced restriction relating to land located within
an of the shopping center shall not apply to any
takes title to the center pursuant to a foreclosure
d in lieu thereof. (For purposes. of this paragraph,
izes and agrees that the sale of sandwiches and
items by restaurants in the shopping Center shall
a breach of the covenants contained herein.)
or covenants and agrees that no atore(s) and/or
r any part of the same, now or hereafter acquired
eted by Landlord within the center shall be used
ion of a theatre, bar, tavern, convenience food
a semen, school, health spa or fitness center (except
pa or fitness center boated in ono of those areas
a e'"proposed" area on the site plan attached hereto
11 ), plant nursery (except for a garden cantor opera-
scant to a home building a nter), nightclub,
i g rink, adult or sexually explicit bookstore, sales
g of automobiles, meeting hall, child care nursery,
o parlor, bowling alley, amusement center, flea
ral parlor or for. purposes other than the operation
e engaged in the sale of merchandise or the rendering
C the consuming public. If at any time during the
e Demised Premises is not being used as a super-
the sale of food for a consecutive period In excess
o the, excluding anyy Excused Period (as defined In
@roof), the restrl otions contained harmin ahall be
Moreover, in the oalection of the occupants of the Shopping
Center, Landl d will adhere to the following standards,
(i) tenants mdst be required to maintain
reason- able Stan ards of appearance and cleanliness, and
(ii) tenants may not create undue obnoxious noise,
litter, o odor.
This Sect?on shall ndt prohibit Landlord from purchasing an
existing ahopp ng center within the aforesaid three (3) mile
existing hopping, -inter vithin the aforesaid thre,>. (3) mile
distance t the t premisss even if said exits shopping s
EXHIBIT c
wa 420 fd6l 632
r.. w a??? Vy? ?.U'A'A.AYYICAAL AM nHkKlbtlUkl? ,
717 232 6507 P.09110
cent r has existing tenants which operate a business which sells,
at r tail or wholesale, food products for off promises consump-
tion Including without lieltation, groceries; seats, fresh
frui a; vegetables; frozen foods, dell/bakery products; spirit-
uous liquors, including beer and wine; or prescription drugs;
prov dad however that Landlord shall not in such case expand any
ouch existing shopping center, nor permit any of the tenants
then in to expand their leaaed premises.
Notwithstanding the restrictions set forth above, Landlord
mey emit the sale of the following items and conduct of the
toll wing types of businesses at the Shopping Center:
(a) The incidental sale of food products for off-
Free to consumption from any business in the Shopping Center
whni Ruch sole is solely for the convenience of its customers or
ampI yeas.
(b) Candy or cookie store.
(c) Ice Cream store.
(d) Health foods store.
(e) Nut store.
(f) Florist.
(g) Cheese store and/or bakery, but only if Tenant
does not operate such a department or departments at the Demised
From coo. with regard to a bakery department, in order for
Tana t to have an exclusive right for a bakery, Tenant must be
oper ting a department which produces baked goods on the prem-
lsea -Should Tenant operate such a bakery department or depart-
ant than Landlord shall not have the right to have such a store
or a ores at the shopping Center during such period of time;
prov dad, however, that Landlord shall not be required to cause
the losure of any bakery which was operating at the shopping
Cent r prior to Tenant's operation of a bakery department or
depa tments at the Demised Premises.
(h) Restaurants (subject to the condition that no
rest urant (other than a restaurant selling primarily pizza or
Chin se food and occupying lass than 1,000 square feat, or a
rent urant located in one of those areas designated as a epro-
Fee* " area on the site plan attached hereto as Exhibit '-Aa)
whos customers generally remain for more than sixty (60) minutes
at a time and which is located within five hundred (500) feet
from the Tenant's Premises shall be permitted).
The above-referenced businesses and uses labelled (b)
thro gh (q) shall not, in the aggregate, occupy space In excess
of 1 ,000 square feet.
section 14.01. Enuirgamunt•
(a) Landlord will, promptly after written notice from
Tens t, bring and prosecute to completion an apppropriate action
or p oceeding In a court of competent jurisdl ation to restrain a
viol tlon of this article, obtaining, if possible, an injunction.
In a ditlon to any other remedies which Tenant may have, at law
or 1 equity, Tenant shall have the right if Landlord shall fail
or r fuse to bring such action or proceeding, to bring an action
or p oceeding against anyy occupant or occupants of any portion of
the hopping center for injunotivs or other relief, in its own
name or in the name of the Landlord to enforce the provisions of
thla artlnle.
f•1
ArC' 1e,
is
[2]
Ito) In the event any prospeotl-r.._.enant or govern-
tal agency shall claim or threaten the commencement of legal
ion or an administrative proceeding alleging that any restric-
e covenant Imposed Upon Landlord in thie artiola is or may be
- z -
WOK 420 PAU 833
a
••••••.,.. .win, oourcu 717 232 6507 P.10/10
invalid or
Tenant of a
option, (1)
its name oa
under and 1
for the bat
against Lar
Shopping Ce
Tenant slat
any legal e
shall Sndec
lityy, lose
Ciaims ageI
covenants t
red or whit
expenses IF
that Land It
the forego:
with all pr
as if auch
nlawful, Landlord shell thereup. :?mptly notify
eh threat or Claim. Tenant she:: lther, at its
respond to ouch threat and defend any legal action in
in Landlord's name, or (ii) waive Ito rights here-
ouch event such covenant shall be deemed deleted and
non of the term of the Lease shall be unenforceable
lord end any prospective or existing tenant of the
ter who challenges such 'covenant. In the event
a (1) above and responds to such threat and defends
tion, it shall do eo at its sole cost and expense and
ify and hold Landlord harmless of and from any liabi-
r expense that may arise out of or result from the
ted or from any action or the defense of trio
ntained herein, including any expense or cost incur-
may be incurred by Landlord for legal foes or other
the defense of any such action in which it is claimed
Ss or may be liable for any damages. Subject to
Landlord shell nevertheless be oblig,)ted to deal
pective or existing tenants of the Shopping Center
vehants were fully enforceable.
6%:gnn+ylVnnfe 1
r,,a+4^.tlnud J 55
In rfm clffoa for the recording or Deeds
.y•??yy 1 141TOf y.iIjjnhmisno Coumy, e.
rrole?rd[1Vol. Pagel,
r?ibnsf my hontl a d anal el oflle
Gerlisla, PA this do of 19
not
1 IN,
1 iv
Ry+Ipi
.?li - ] - 6U11K 4'.0 rut
(21
TOTAL P.10
5CHEnvVX- 5-
SUB RDINATION, NONDISTURBANC/E AND ATTOQRNMENT AGREEMENT
THIS AG EMENT, made this S day of JgNM»/' 199! , between GIANT FOOD STORES,
INC., a Delaware otporation ("Tenant"), DUAE CRE, INC., a New York corporation ("Lender"), and MMR
SPAW49 he 4440 a^ *a4" BACKGROUND'.
ACTAzt Hergi ;1 ???IZ?ad AI'y Q1 P e /ate., 1,1? 4 J?a,G,rr6y fAsTtA?
vgn, }111 Nine Hundred 1 p
A. nder is nowgi slfeuTuIIgec?ome tie owner and holder o
f sf Mated January 8 ,
19 99 in the prince al amount of ($ .00) Dollars (the said mortgage
and other loan do eats, as the same to be amended, modified, renewed and extended from time to time,
collectively, the "M gage"), on real estate more particularly described in the Mortgage, which real estate is a
shopping center Imo As Silver Spring Commons located in Silver Spring Township, Cumberland County,
Pennsylvania.
B. To sat is the holder of a lease, dated May 29, 1992, between Landlord, as lessor, and Tenant, as
lessee (the lease, as ended from time to time, the "Lease").
C. To t, Lender and Landlord desire to confirm their understanding with respect to the Lease and
the Mortgage.
NOW, THE FORE, with intent to be legally bound, the parties hereby agree and covenant as follows:
1. . The Lease shall be subject and subordinate to the lien of the Mortgage, subject,
nevertheless, to the to of this Agreement.
2. . So long as Tenant is not in default beyond any period given Tenant to cure such
default in the perfo cc of any of the terms of the Lease on Tenants part to be performed:
(a) Tenant's right of possession of the premises described in the Lease (the
"Premises"), d the terms and provisions of Lease, shall not he affected or disturbed by Leader in
the exercise any of its rights under the Mortgage, or otherwise by law provided;
(b) in the event that Lender comes into possession or ownership of the Premises by
foreclosure o other proceedings pursuant to the Mortgage, or otherwise, the Lease shag continue
in effect and 11 not be terminated, and Leader, or any person acquiring possession of or title of
the Promisee, m, through or under Lender, shag take title subject to the Lease;
(c) If the Premises are damaged by fire or other casualty, or am taken in eminent
domain proc ' gs, for which under any of the insurance policies or condemnation awards
therefor for to is payable to Lender, such insurance funds or condemnation awards will be made
available For purpose of repair or rebuilding of the Premises as provided in the Lease, with soy
excess Tema' ' g after the repay or rebuilding applied as provided in the Lease.
3. If Lender succeeds to the interest of the Landlord under the Lease, Tenant shag be
bound to Leader under l of the terms covenants and conditions of the Lease for the balance of the term thereof
W603aa,
retracting, with th same force and effect as if Lender were the Landlord under the Lease, and Tenant does hereby
attom to Lender as 'd Gandlord, said attomment to be effective and self-operative without the execution of any
further instruments On the part of either of the parties hereto immediately upon Lender succeeding to the interest of
the Landlord under fhe Lease; provided, however, that Tenant shall be under no obligation to pay rent to Lender, as
Landlord, mtii Ten t receives written notice from Lender that it has succeeded to the interests of Landlord under
the Lease.
4. If Lender exercises its rights under the Mortgage such that it becomes
entitled to collec other charges (the "Rent") under the Lease, upon receipt by Tenant of written notice
from the Lender Tenant to pay the Rent directly to the Lender (the "Rent Notice"), Landlord and
Tenant agree tha pay to Lender, or to such person or entity designated by Lender, all Rent due and to
r
become due to th nder the Lease. Provided that Rent has not been paid more than thirty (30) days in
advance of its du t shall not be liable to Lender for Rent paid to Landlord prior to receipt of the Rent
Notice. Absent f art of Tenant, Tenant shall be entitled to rely upon any Rent Notice which on its face
purports to have e Lender, and Tenam shall not be responsible, inter alia, for determining whether the
provisions of the r the circumstances then existing, entitle Lender to collect the Rem, or whether the
Rent Notice was bym
authorized officer or representative of Lender.
5. If Lender shall succeed to the interest of Landlord under the Lease,
Lender shall be boun to Tenant under all terms, covenants and conditions of the Lease, provided however, that
Lender shall not be:
(a) liable for any act or omission of any prior landlord (including the Landlord),
other than nartmonetary ongoing default as to which Tenant has provided written notice to
Lender, or
(b) subject to any offsets or defenses which the Tenant might have against any prior
landlord (including the Landlord); or
(c) liable to refund to Tenant any security deposit which Tenant shall have paid to
any prior lanord (including the Landlord) unless such deposit has been delivered to Lender, or
(d) bound by any rent or additional rent which Tenant might have paid for more
than the curre t month to any prior landlord (including Landlord); or
(e) bound by any amendment or modificafion of the Lease made without Lender's
consent, whit consent shall not be umeasonabty withheld or delayed; pro vided, however, Leader
shall have the 'ght to withhold its consent with respect to any amendment or modification which
would materially adversely affect Lendet's rights in the Premises.
b. Tenant shall provide Lender with a duplicate copy of any default notice
provided to Landlord der the Lease. Lender shall have the right to cure any such default by Landlord within the
same time provided m e Landlord by the terms of the Lease. Tenant agrees to accept performance by Lender to
the same extent as of 'ded by Landlord.
7. 1.C
writing. All notices
All notices and other communications hereunder (collectively "Notices") shall be in
e deemed properly given when delivered, or the date delivery is tendered if such tender is
A060333, I - 2 -
re8rsed by the reci tent Delivery shall be trade by registered or certified mail, return receipt requested, or by
overnight courier rvice which requires a receipt upon delivery. Notices shall be addressed to the parties hereto at
the following addre ses:
Tenant:
Giant Food Stores, Inc.
1149 Harrisburg Pike
Carlisle, Pennsylvania 17013-0249
Attn: Real Estate Department
Lender:
Dime CRE, Inc.
610 Sentry Parkway
Suite 130
Blue Bell, Pennsylvania 19422
Attn: Joseph A. Benz
Landlord:
Silver Spring Commons Holdings Inc.
259 N. Radnor-Chester Road
Suite 200
Radnor,PA 19087
Atm:David V. Iersolo
A party may by notice { the outer parties designate a new address to which notces shall thereafter be delivered
a. Mil
agreement in writing'
the pestles hereto and
9.
x060]0],
z m, This Agreement may not be modified orally or in any other manner than by an
Iby the parties berelo. This Agreement shall be binding upon and More to the benefit of
respective successors and assign:.
This Agreement may be recorded by any party at any time,
3 -
Il3 S WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as
of the day end year t above written.
WMe%
ATTEST: LENDER:
DIME C
RE INC.:
By \
Name: la ,atita Hit LeX Name: A Mini..
Title: 4YI-rgVr 'ramtrt2k Title: 4. {/ria+R r
SEAL)
ATTEST: TENANT:
0L4NT FFOOD STORES, INC.:
?Jj
BY gy_?? (CF_h??? //(/Ut?
Name: RO ert L. An erson Name: Richard E. Welsh
Tide' Exec. Vice President Title: Director of Real Estate
LANDLORD:
W tYMSS
EA!?ERN 7QErAZ1 F14ZJ/lU6I Lin ZTE f7 RAR7NetSxla
Sy:
By' By. (SEAL)
Name; Name: 640A V. M£ O L o
Tide: Title: VIcE Plz-ast Ne,'r-
X060]]].
4
4
COMMONWEAL OF PENNSYLVANIA
SS:
COUNTY OF ER LAND
un p
On this day o , ? rL , 199a before me, a Notary Public, the undersigned officer,
personally appeared 'chard E. Welsh, who acknowledged himself to be the Director of Real Fstate of Giant Food
Stores, Inc., and that he as such President being authorized to do so, executed the foregoing instrument for the
purposes therein con ined by signing the name of such company by hunself as such officer.
iN WITNE S WHEREOF, I have hereunto set my hand and official seal.
Notary Publi
NotadaYB6al Z@" ? Pubiic
Michele A. Goitle .
Middies TWp., CumoerlaM County
My Comml5alo? EXPIMS July 2, 2011
M/mblt 7AM106yNrlA Aas!xlaliaa of Nolanes
n - -
STATE OF 6H?
COUNTY OF A,
On this, the
aforesaid, the under
the et G' f-
?J-?A,/ bra
by signing the narrate
IN WPfNEI
A0602221
SS:
'day o R.I w'- 199-, before rne, a Notary Public in and for the Sate and County,
6 #40
d officer, personally appeared na -W ?~who acknowledged himself gwr&sll] to bbee(
16'f rftl,/at. /94,ZWW 'r4 a corporation, and that he (eke] as such -
authorized to do so, executed the foregoing instrument for the purposes therein contained
to corporation by himself (keraTq as Un a' ??? ? p'4
I have hereunto set my hand and official seal."
Notary Public
(SEAL)
NOTARIAL. SEAL
MARIANNE O. HAVERLAND, NotaryPublic
Cfry N Philadelphia, Phila. County
My Cen6nMSler Expkes l)ac. 10, 11189
STATE OF "may t rw's- t
r? ,? : SS:
COUNTY OF / .C?f •.
On this, th ry/\ day ofr-4 ? , 199 before me, a Notary Public in and for the Sate and County
aforesaid, the undo ign/ed ofYcer, personally appeared -AVe4 h'?- l owledged himself (hwe}F}to be
the ?? ??CJ 4 f Jim .4 C--, a corporation, and that he [cke] as such / , GC_
r ? b ing authorized to do so, executed the foregoing instrument ''forrt/the purposes therein contained
by signing the mame f the corporation by himself Persalij as r e ? ?aP'?
IN MTNE V4MREOF, I have hereunto set my hand and official seal.
4q ?H Q
otary Public
(SEAL)
HOTAPIAL SEAL
MARIANNE G. HAVERLAND, Notary Public
Cay of Philadelphia, Phila. County
w Ca0vv ion Expltes Dec. 70,1880
A060222
x?, Vt 5
1 ?
FIRST AMENDMENT
TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "Amendment") is
made as of this 9 day of September, 2003 (the "Effective Date"), between
EASTER RETAIL HOLDINGS LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord"), and GIANT FOOD STORES, LLC, a Delaware limited liability
company "Tenant").
BACKGROUND:
A. Landlord is the fee owner of certain real property that comprises a portion
of the Sill
er Spring Commons Shopping Center, located in Silver Spring Township,
Cumberla d County, Pennsylvania, as depicted on the Site Plan attached hereto as
Exhibit "A (the "Shopping Center").
B. Landlord's predecessor in interest and Tenant's predecessor in interest
entered i to a Lease Agreement dated May 29, 1992 (the "Lease"), pursuant to which
Tenant I ases certain premises located in the Shopping Center (the "Demised
Premises') as described in the Lease. Pursuant to a Guaranty dated December 10,
1991, Ko inklijke Ahold n.v. has guaranteed the payment of rents by Tenant under the
Lease, as amended from time to time.
C. Tenant elected to discontinue the operation of the Demised Premises as a
supermar et pursuant to its rights set forth in Section 6.02 of the Lease, and ceased
operation in the Demised Premises on or about April 24, 2001.
D. Section 14.01 of the Lease sets forth a use restriction binding the
Shopping Center and certain other property within a three (3) mile distance therefrom
(the "Sup rmarket Restriction"), which shall become null and void if the Demised
Premises are not being used as a supermarket or for the sale of food for a consecutive
period in xcess of six (6) months, excluding any Excused Period.
E. Tenant, as sublessor, and Marmaxx Operating Corp. ("Marmaxx"), as
sublessee entered into a Sublease Agreement dated as of September 20, 2001 (the
"Marmaxx Sublease"), pursuant to which Marmaxx occupies a portion of the Demised
Premises, which portion is marked "Marmaxx Space" on Exhibit "A" hereto.
F.
entered it
Sublease"
Premises,
Tenant, as sublessor, and A.C. Moore, Inc. ("A.C. Moore"), as sublessee,
o a Sublease Agreement dated as of July 1, 2003 (the "A.C. Moore
pursuant to which A. C. Moore occupies the remainder of the Demised
vhich remainder is marked "A.C. Moore Space" on Exhibit "A" hereto.
{A470558:}
G.
that compr
on Exhibit
H.
provisions
Wal-Mart Stores, Inc. ("Wal-Mart') is the fee owner of certain real property
=s a portion of the Shopping Center (the "Wal-Mart Property") as depicted
" hereto.
Landlord and Tenant desire to amend the Lease in accordance with the
: forth herein.
1. Except as expressly hereinafter provided or unless the context indicates
otherwise, Oil capitalized terms used herein which are not defined herein shall have the
meanings scribed to them in the Lease.
follows:
THEREFORE, the parties hereto, intending to be legally bound, agree as
1. Term. Landlord and Tenant confirm and agree that the original term of the
Lease sha I expire at noon on November 30, 2012 (the "Expiration Date"), in
accordanc with the provisions of Section 3.01 of the Lease.
2. Renewal Options. Landlord and Tenant agree that Article 5 of the Lease
is hereby d leted, and Tenant shall have no right or option to extend the term of the
Lease beyo d the Expiration Date.
3. Subleases. Landlord and Tenant agree that from and after the Expiration
Date, Tena it shall have no further rights, duties or obligations under the Marmaxx
Sublease o the A. C. Moore Sublease, except for any rights, duties or obligations
accruing be ore the Expiration Date.
4. Supermarket Restriction. Landlord and Tenant agree that, effective upon
the executi of the Marmaxx Sublease on or about September 20, 2001, Section 14.01
of the Leas shall have been amended to provide that, whether or not the Demised
Premises i operated as a supermarket or for the sale of food, the Supermarket
Restriction hall remain in full force and effect throughout the original term of the Lease
and shall a pire and terminate only (i) upon an uncured Tenant Default as set forth in
Section 24. 1 of the Lease, or (ii) on the Expiration Date.
5. Wal-Mart. Notwithstanding anything to the contrary contained herein or in
the Lease, t e Supermarket Restriction shall not apply to Wal-Mart, its successors or
assigns.
6. Memorandum of Lease Amendment. A Memorandum of this Amendment
shall be ex uted by Landlord and Tenant and recorded in the Cumberland County
Office of the Recorder of Deeds. Tenant shall pay all realty transfer taxes required to
be paid in co nection with this Amendment.
(A47ossa:)
-2-
7
Amen
of the
IN
caused tl
Miscellaneous.
7.1 All terms and conditions of the Lease not inconsistent with this
shall remain in full force and unchanged hereby.
7.2 This Amendment shall be binding upon and shall inure to the benefit
hereto and their respective successors and assigns.
ITNESS WHEREOF, with intent to be legally bound, the parties have
presents to be executed as of the day and year first above written.
EASTERN RETAIL HOLDINGS LIMITED
PARTNERSHIP:
By: LMRES Real Estate Advisors, Inc.,
Its general partner:
By:,
Name:
Title:
By:
Na
(A470558:1
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By:_
Name:
Title:
GIANT FOOD STORES, LLC
By. ? 12?-
Name: G E. Adams
Title: Vi resident of Real Estate
a
[ATTACH PLAN OF THE SHOPPING CENTER
SHOWING MARMAXX SPACE, A.C. MOORE SPACE,
AND WAL-MART PROPERTY.]
(A470558:}
EXHIBIT "A"
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
30IAN FOOD STORES, LLC,
Plaintiff
V.
THE S LVER SPRING DEVELOPMENT,
L.P.
Defendant
CIVIL ACTION - EQUITY
NO. 0(o- 03to9 ? cat -r..
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
Rule
Sam's
Plaintiff Giant Foods Stores, LLC ("Giant") hereby moves, pursuant to Pennsylvania
Civil Procedure 1531, for a preliminary injunction, pending a trial on the merits, barring
THE Silver Spring Development L.P. (71.17) from allowing Sam's East, Inc. t/d/b/a
to use a portion of the Silver Spring Commons Shopping Center for the sale of
meats, fresh fruits, vegetables, frozen foods and deli/bakery products for off-premises
in support of its Motion, Giant states as follows:
Simultaneously with this Motion, Giant has filed a Complaint for injunctive relief
THF, which is incorporated herein by reference.
Giant's principal business is the operation of supermarkets for the retail sale of
;s and food products.
3. THE is the owner of a parcel of real property located in Silver Spring Township,
rland County, on which is located, in part, the Silver Spring Commons Shopping Center
(the "Shopping Center").
On May 29, 1992, Giant's predecessor in interest, Giant Food Stores, Inc., entered
into and agreement to lease a portion of the Shopping Center from THF's predecessor in interest,
Silver ?pring Center Limited Partnership (the "Lease Agreement"). Complaint at Exhibit A.
5. Following the execution of the Lease Agreement, Giant operated a supermarket
from tl)e leased premises (the "Premises").
6. The Lease Agreement contains a restrictive covenant preventing the landlord
(now ' HF) from leasing any other portion of the Shopping Center to a tenant who intends to sell
or operate a supermarket from the leased space (the "Supermarket Restriction")
Speed
, Section 14.01 of the Lease Agreement states that the landlord:
covenants and agrees that, for the term of this Lease and any
extension thereof, no store(s) and/or building(s), or any part of
same, now or hereafter acquired and/or constructed by Landlord
within the Shopping Center or upon any property within a three (3)
mile distance therefrom (as measured by the shortest driving
distance by automobile from the Premises) in which the Landlord
has an ownership interest shall be used for the sale (at retail or
wholesale), for off-premises consumption of groceries, meats,
fresh fruits, vegetables, frozen foods and deli/bakery products.
Lease
§ 14.01.
7. The Lease Agreement contained a provision nullifying the Supermarket
if Giant failed to use the Premises as a supermarket for a period in excess of six
See Lease Agreement § 14.01.
8. On or about April 24, 2001, Giant discontinued its use of the Premises as a
but continued as the lessee of the Premises and continued to pay rent.
2
Thereafter, Giant began operating a supermarket in another retail center across the
street tram the Shopping Center.
10. Giant subleased a portion of the Premises to Marmaxx Operating Corp. and the
portion to A.C. Moore, Inc.
11. Although Giant has subleased the Premises to tenants, it has remained as the
tenant under the Lease Agreement.
12. Giant continues to have an interest in the enforcement of the Supermarket
igtion because of its operation of a supermarket in a location nearby the Premises.
13. On or about September 9, 2003, Giant and Eastern Retail Holdings Limited
(the successor in interest to Silver Spring Center Limited Partnership and the
in interest to THF) executed the First Amendment to the Lease Agreement (the
"First ,}amendment"). Complaint at Exhibit B.
14. The First Amendment modified the Supermarket Restriction retroactively to
20, 2001 by nullifying the portion of the restriction that rendered it inoperative in the
event t6 Giant ceased to use the Premises as a supermarket for a period in excess of six months.
See Fi> st Amendment ¶ 4.
15. The First Amendment provided that the Supermarket Restriction would remain in
full fo?ce and effect throughout the term of the Lease Agreement. See First Amendment 14.
16. The First Amendment also extended the term of the Lease Agreement to
November 30, 2012. See Lease Agreement ¶ 1.
17. At the time of the execution of the First Amendment, Wal-Mart Stores, Inc.
) was operating a store in Silver Spring Commons, and wished to sell groceries from
that
18. The First Amendment modified the Supermarket Restriction to permit Wal-Mart
to sell kroceries from its facility in Silver Spring Commons. See First Amendment ¶ 5.
19. This exception to the Supermarket Restriction was specific to Wal-Mart, its
and assigns, and did not allow any other exceptions to the Supermarket Restriction.
See
Amendment ¶ 5.
THF's Violation of the Supermarket Restriction
20. Upon information and belief, THE has entered into an agreement to lease a
of the Shopping Center to Sam's East, Inc. t/d/b/a Sam's Club ("Sam's Club").
21. Sam's Club has filed a conditional use application with Silver Spring Township
permission to operate a facility at the Shopping Center.
22. Upon information and belief, Sam's Club intends to operate a store at which it will
offer f?r sale groceries, meats, fresh fruits, vegetables, frozen foods and deli/bakery products for
off-premises consumption.
23. Sam's Club is a distinct entity from Wal-Mart and is separately incorporated.
Thus, the exception to the Supermarket Restriction for Wal-Mart is inapplicable.
24. If THE allows Sam's Club to use a portion of the Shopping Center for the sale of
meats, fresh fruits, vegetables, frozen foods and deli/bakery products for off-premises
THE will be in direct violation of the Lease Agreement and the First Amendment.
Request for Injunctive Relief
25. Giant continues to operate a supermarket near the location of the Premises.
26. Giant bargained for the Supermarket Restriction in the Lease Agreement and First
27. If THE allows Sam's Club to use a portion of the Shopping Center for the sale of
meats, fresh fruits, vegetables, frozen foods and deli/bakery products for off-premises
some Giant customers will shop at the Sam's Club, causing Giant economic loss.
28. A plaintiff is entitled to injunctive relief where the plaintiffs right to relief is
clear, the need for relief is immediate, and the injury is irreparable if the injunction is not
See Masure v. Massa, 692 A.2d 1119 (Pa. Super. 1997).
29. In this case, Giant's right to relief is clear, as the proposed use by Sam's Club is in
direct }violation of the contractual agreements between THE and Giant.
30. The need for relief is immediate, as Giant will begin to suffer losses as soon as
Sam's ?lub begins operations.
31. The impending loss of a business opportunity or market advantage is an
le injury. See id. at 1122.
32. Giant's impending loss of the market advantage for which it bargained is an
injury.
33. Giant has no adequate remedy at law.
34. Giant is entitled to an injunction to prevent THE from allowing Sam's Club to use
of the Shopping Center for the sale of groceries, meats, fresh fruits, vegetables, frozen
foods ?nd deli/bakery products for off-premises consumption.
WHEREFORE, Plaintiff Giant Foods Stores, LLC respectfully moves the Court for an
Order ranting Plaintiffs Motion for Preliminary Injunction in the form of the attached proposed
order.
McNEEs LAC & N RICK LLC
By ?
H en L. G 11
I.D. No. 60661
Kandice J. Giurintano
I.D. No. 86345
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff Giant Food Stores, LLC
Dated: I June 28, 2006
GIANT FOOD STORES, LLC,
Plaintiff
V.
THE SILVER SPRING
DEVELOPMENT, L.P. and
WAL-MART, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 - 3688 EQUITY
CIVIL ACTION - EQUITY
ORDER OF COURT
AND NOW, this 30TH day of JUNE, 2006, a hearing on Plaintiff s request for a
preliminary injunction shall be held on FRIDAY, JULY 7, 2006, at 2:30 p.m. in
Courtroom # 3.
Court,
Edward E. Guido, J.
Kandice Giurintano, Esquire - 3 0& A,t.",;l ed-
THE Silver Spring Development, L.P.
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HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett, Esquire
Attorney ID #41071
221 East Chestnut Street Attorneys for Defendant
Lancaster, PA 17602-2782
(717) 299-7254 Fax: (717) 299-3160
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC,
Plaintiff
: CIVIL ACTION - EQUITY
V.
THE SILVER SPRING DEVELOPMENT,
L.P.,
Defendant
No. 06-3688 Civil Term
UNCONTESTED MOTION FOR ADMISSION OF
BRADLEY A WINTERS AND MICHAEL M. GODSY PRO IIAC VICE
Defendant and its counsel, Mark E. Lovett, move for the admission pro hac
vice of Bradley A. Winters, Esquire and Michael M. Godsy, Esquire, as counsel for
Defendant, in the above-captioned matter.
2. Attorneys Winters and Godsy are partners in the firm of Sonnenschein Nath
& Rosenthal LLP, and practice at their St. Louis, Missouri office. Both attorneys are
licensed to practice law in Missouri and Illinois. Copies of the Missouri State Bar Directory
of Lawyers evidencing their admission and current good standing are attached to and made
a part of this Motion as Exhibit A.
3. Counsel for Defendant has conferred with counsel for Plaintiff concerning
this Motion and Plaintiff has no objection to the admissions.
00444298.1
WHEREFORE, THE Silver Spring Development, L.P. and Mark E. Lovett,
respectfully request that the Court enter an Order admitting Bradley A. Winters and Michael
M. Godsy pro hac vice.
Date: L 0
Respectfully submitted,
HARTMAN UNDEAF4kb,&-13-RUBAKER LLP
Mark P. LovettTM. #41071
Attorneys for Defendant
00444298.1
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Jv1-06-06 14:12 From-Sonnenschein Nath & Rosenthal (4) 314 259 5959 T-124 P.002/003 F-406
D tgry 7
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Public Information
Winters, Bradley Alan
Bar Number: 29867
Date Admitted: 9/19/1981
St. Louis, MO 63102 United States
Current Standing: Good Standing
THE MISSOURI BAR - P,O. BOX 119 -JEFFERSON CITY. MO 65102 PHONE; 573-635-4128 FAX: 573-635-2811
http://search.mobar.orgldirectory/lawyer_profile_all.asp7db_id=6043174008&tbl_name=56... 7/6/2006
Jul-06-06 14:12 From-Sonnenschein Nath & Rosenthal (4)
an mm
Public Information
Godsy, Michael Morgan
Bar Number: 47616
Date Admitted: 10/4/1996
St. Louis, MO 63102 United States
Current Standing: Good Standing
314 259 5959 T-124 P.003/003 F-406
THE MISSOURI BAR -P.O. BOX 119 -JEFFERSON CITY. MO 65102 PHONE: 573-8354128 FAX: 573-835-2611
http://search.mobar.orgldirectoryllawyer_profile_all.asp?db_id=14575500246&tbl_name=l ... 7/6/2006
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am this day serving the foregoing document upon the
persons and in the manner indicated below.
Service by Facsimile and addressed as follows:
Helen L. Gemmill, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Facsimile Number: (717) 237-5300
HARTMAN UNDE ILL & BRUBAKER LLP
Mark E. Lovett
Attorney I.D. #41071
Attorneys for Defendant
221 East Chestnut Street
Lancaster, PA 17602
(717) 299-7254
00444298.1
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HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett, Esquire
Attorney ID #41071
221 East Chestnut Street Attorneys for Defendant
Lancaster, PA 17602-2782
(717) 299-7254 Fax: (717) 299-3160
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC,
Plaintiff
V.
THE SILVER SPRING DEVELOPMENT,
L.P.,
Defendant
TO THE PROTHONOTARY:
: CIVIL ACTION - EQUITY
. No. 06-3688 Civil Term
PRAECIPE
Please enter the appearance of Mark E. Lovett, Esquire, and Hartman Underhill &
Brubaker LLP, on behalf of Defendant, THE Silver Spring Development, L.P., in the
above-captioned matter.
Date:- 200
?`•- b
Respectfully submitted,
HARTMAN UNDERHILL & BRUBAKER LLP
By:
Mark E. Lovett
Attorney I.D. #41071
Attorneys for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am this day serving the foregoing document upon the
persons and in the manner indicated below.
Service by first class mail and addressed as follows:
Helen L. Gemmill, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Date: ZoG ?Ca
TMAN UNDERHIL & BRUBAKER LLP
By:
Mark E. Lovett
Attorney I.D. #41071
Attorneys for Defendant
221 East Chestnut Street
Lancaster, PA 17602
(717) 299-7254
P^_.7
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HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett, Esquire
Attorney ID #41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254 Fax: (717) 299-3160
Attorneys for Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC,
Plaintiff
V.
CIVIL ACTION - EQUITY
No. 06-3688 Civil Term
THE SILVER SPRING DEVELOPMENT,
L.P.,
Defendant
ORDER
AND NOW, this day of pt?ik , 2006, upon consideration of
the Uncontested Motion for Admission of Bradley A. Winters and Michael M. Godsy Pro
Hac Vice, it is hereby ORDERED AND DECREED that the Motion is granted. Bradley A.
Winters and Michael M. Godsy are admitted pro hac vice for Defendant, THE Silver Spring
Development, L.P., in the above-captioned
J.
00444298.1
JAWMIRO
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GIANT FOOD STORES, LLC
Plaintiff
V.
THY SILVER SPRING
DEVELOPMENT, L.P.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-3688 CIVIL TERM
CIVIL ACTION - EQUITY
ORDER OF COURT
AND NOW, this 7th day of July, 2006, by agreement
of the parties, there is no need for a hearing on the request
for a preliminary injunction. The Defendant realizes that it
will proceed in its effort to get the necessary approvals at its
own risk. Further, the parties have agreed that we will have a
hearing on the request for a permanent injunction on the
afternoon of Thursday, October 5, 2006, commencing at 1:00 p.m.
By
Edward E. Guido, J.
Helen L. Gemmill, Esquire
Kandice Giurintano, Esquire
McNees, Wallace & Nurick
For the Plaintiff
Bradley A. Winters, Esquire
Michael M. Godsy, Esquire
Sonnenschein, Nath & Rosenthal, LLP
For the Defendant
Mark E. Lovett, Esquire
Hartman, Underhill & Brubaker, LLP
For the Defendant
James A. Diamond, Esquire
Eckert, Seamans, Cherin & Mellott, LLC
For Wal-Mart, Inc.
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GIANT FOOD STORES, LLC, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 2006-3688 CIVIL TERM
THE SILVER SPRING
DEVELOPMENT, L.P.,
Defendant CIVIL ACTION - EQUITY
ORDER OF COURT
AND NOW, this 7th day of July, 2006, by agreement
of the parties, Wal-Mart, Inc., and any subsidiary thereto was
erroneously joined in the caption of this case and is hereby
DISMISSED.
By t]
Edward E. Gu
Helen L. Gemmill, Esquire
Kandice Giurintano, Esquire
McNees, Wallace & Nurick
For the Plaintiff
Bradley A. Winters, Esquire
Michael M. Godsy, Esquire
Sonnenschein, Nath & Rosenthal, LLP
For the Defendant
Mark E. Lovett, Esquire
Hartman, Underhill & Brubaker, LLP
For the Defendant
James A. Diamond, Esquire
Eckert, Seamans, Cherin & Mellott, LLC
For Wal-Mart, Inc.
J.
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No. 06-3688 Civil Term
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett, Esquire
Attorney ID #41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254 Fax: (717) 299-3160
Attorneys for Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC,
Plaintiff
V.
THE SILVER SPRING DEVELOPMENT,
L.P.,
Defendant
CIVIL ACTION - EQUITY
No. 06-3688 Civil Term
ORDER
AND NOW, this day of July, 2006, upon consideration of the request of
THE Silver Spring Development L.P., to direct the stenographer to produce the transcript of
the proceedings in the above-captioned matter, the stenographer is hereby ordered to
produce the transcript of the proceedings held
THE
00444707.1
*SOL,
0`A 'on
Edward E. Guido, Judge
at 2:30 p.m.
r a :E±r e ytliP
0..
GIANT FOOD STORES, LLC,
Plaintiff
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-3688 CIVIL TERM
THE SILVER SPRING
DEVELOPMENT, L.P.,
Defendant CIVIL ACTION - EQUITY
TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE EDWARD E. GUIDO, J.
Cumberland County Courthouse, Carlisle, Pennsylvania
on Friday, July 7, 2006,
in Courtroom No. 3
APPEARANCES:
HELEN L. GEMMILL, Esquire
KANDICE GIURINTANO, Esquire
McNees, Wallace & Nurick
For the Plaintiff
BRADLEY A. WINTERS, Esquire
MICHAEL M. GODSY, Esquire
Sonnenschein, Nath & Rosenthal, LLP
For the Defendant
MARK E. LOVETT, Esquire
Hartman, Underhill & Brubaker, LLP
For the Defendant
JAMES A. DIAMOND, Esquire
Eckert, Seamans, Cherin & Mellott, LLC
For Wal-Mart, Inc.
t i
1 THE COURT: Good afternoon. Let me start by
2 indicating I have signed the Order admitting Mr. Winters and
3 Mr. Godsy for purposes of this action, so we'll proceed on
4 that basis. Some brief opening statements.
5 MS. GEMMILL: Good afternoon, Your Honor.
6 Helen Gemmill on behalf of Giant Food Stores, Inc. With me
7 is my colleague, Kandice Giurintano.
8 Before I do a brief opening statement, I want
9 to address one small matter. I think we have inconvenienced
10 an attorney from Wal-Mart that is here. My office made a
11 mistake on the caption on the proposed order, and somehow
12 the name of Wal-Mart Stores, Inc., appeared in that caption.
13 It was not in the caption of the complaint or in our motion
14 or our brief, but that mistake was made by my office that
15 has caused Wal-Mart to wonder whether they are a party to
16 this action. We did not intend to sue them. We have not
17 named them.
18 THE COURT: So the only party is Giant Food
19 Stores, LLC, v. Silver Spring Development, L.P.?
20 MS. GEMMILL: Actually, it's THE Silver
21 Spring Development, L.P., and that's the name of the caption
22 on the complaint and on the motion and on the brief. It's
23 the proposed order granting the preliminary injunction that
24 has the error.
25 THE COURT: Does either party have any
2
0 !
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
objection to Wal-Mart being dismissed?
MR. WINTERS: I'm not sure. I'm Brad Winters
for THF, Your Honor. I'm not sure we have an objection. I
think there's an issue as to whether Wal-Mart may want to
intervene in the matter.
THE COURT: Well, that's a whole separate
matter.
MR. WINTERS: Yes, it is.
THE COURT: If you don't object, we'll hear
from Wal-Mart then.
MR. DIAMOND: Your Honor, Jim Diamond from
Eckert, Seamans in Harrisburg.
THE COURT: And I'll bet you aren't really
that inconvenienced, are you, Mr. Diamond?
MR. DIAMOND: Not terribly. I would also
like clarification that because not only were the captions
mentioning Wal-Mart, Inc. -- we're actually Wal-Mart Stores,
Inc., there was that confusion -- but I also notice in the
complaint -- we got a copy from landlord's counsel -- it
mentioned another Wal-Mart subsidiary, Sam's Club East,
Inc., and mentioned that that was a Defendant. I guess I
want a confirmation that also no affiliates of Wal-Mart are
intended to be defendants at this point.
MS. GEMMILL: Your Honor, certainly we
reference Sam's Club because that's the entity the developer
3
1 is putting in or wants to put in, but Sam's Club East is not
2 a Defendant in this action. We have no intention of suing
3 them.
4 THE COURT: My question then is, your only
5 intention of suing is --
6 MS. GEMMILL: THE Silver Spring Development.
7 THE COURT: The client represented by these
8 two gentlemen seated at that table there. We're not going
9 to get a final decision on this today, are we?
10 MS. GEMMILL: I don't know, Your Honor. I
11 don't think so, but we'll see.
12 THE COURT: And you don't object to Wal-Mart
13 being gone?
14 MR. WINTERS: No, sir.
15 THE COURT: You may be gone.
16 MR. DIAMOND: I'm going to sit here and watch
17 if it's okay.
18 THE COURT: It's okay with me if it's okay
19 with your client. Let me enter the following Order:
20 "AND NOW, this 7th day of July, 2006, by
21 agreement of the parties, Wal-Mart, Inc., and any subsidiary
22 thereto was erroneously joined in the caption of this case
23 and is hereby dismissed."
24 MS. GEMMILL: Thank you, Your Honor. Your
25 Honor, a brief opening statement. I appreciate that this
4
0
1 matter is being heard on an expedited basis. Giant Food
2 Stores, LLC --
3 THE COURT: Well, let me ask you that. Is
4 there a need for an expedited basis? Where do we stand in
5 the approval process?
6 MS. GEMMILL: Let me tell you, the Planning
7 Commission of Silver Spring Township has recommended
8 approval of the conditional use application filed by THE on
9 behalf of Sam's Club.
10 THE COURT: And when is it scheduled to go
11 before the --
12 MS. GEMMILL: It was before the Board of
13 Supervisors last week, I believe June 28th. That hearing
14 was then continued until July 26th for some additional
15 evidence to come before them.
16 THE COURT: So you don't need a decision from
17 me until at least July 26th?
18 MS. GEMMILL: That's correct, Your Honor.
19 THE COURT: Is that a fair statement?
20 MR. WINTERS: Yes, Your Honor, at least.
21 MS. GEMMILL: But we wanted to bring this
22 before you, because in the meantime, certainly, the
23 developer is spending money on this matter and --
24 THE COURT: And that's breaking your heart?
25 MS. GEMMILL: It is not breaking my heart,
5
1 but to the extent that they were going to come back later
2 and say we should have done something sooner and look at all
3 of the money we have spent, we wanted to be here first.
4 THE COURT: Well, you're here. You're here.
5 We've got it started.
6 MS. GEMMILL: Giant Food Stores, LLC, leased
7 a space in the shopping center known as Silver Spring
8 Commons beginning in 1992. In 2003, they decided to move
9 their store across the street to a new shopping center. In
10 connection with that move, they wanted to then lease the
11 former space, sublease it to other tenants for less money
12 than they were paying, but to have that lease there. But
13 the original lease, which is still in effect, had a use
14 restriction that prohibited the developer from having any
15 other store selling groceries, meats, dairies, typical
16 grocery store items.
17 In connection with that move, an amendment to
18 the lease was entered into under which the developer, the
19 owner, agreed to keep that lease restriction, use
20 restriction, in effect until the year 2012. That is still
21 in effect. There was an exception carved out for the
22 existing Wal-Mart store, because at that time the existing
23 Wal-Mart store wanted to expand to become a super center.
24 So they're also selling groceries there. Giant agreed to
25 that.
6
1 THE COURT: Okay. Let me get this straight.
2 Is it in the space you were actually leasing, or is it
3 somewhere in the shopping center that the use restriction
4 applies?
5 MS. GEMMILL: The use restriction applies in
6 the entire shopping center.
7 THE COURT: And you're saying that you're
8 entitled to the benefit of that bargain?
9 MS. GEMMILL: Yes, we are.
10 THE COURT: I'm asking you to presume their
11 position is going to be that Sam's Club is part of Wal-Mart?
12 MS. GEMMILL: I believe that is their
13 position. We're prepared to put on evidence and to show
14 that Sam's Club, while it may be a subsidiary of Wal-Mart,
15 is not Wal-Mart. It is a separately incorporated entity.
16 The intent of the parties in entering into the lease
17 amendment was only to allow the existing Wal-Mart to expand
18 and to allow it to have a super store, not to allow any
19 other stores to go in there. That's the evidence that we
20 plan to put on.
21 I think, Your Honor, you have gotten to the
22 crux of this case. Is the Sam's Club within the exception
23 under the lease amendment? If they are not within the
24 exception, then the Sam's Club cannot go in there because
25 Giant has paid for a use restriction in that shopping center
7
I and continues to pay for it to this day. If it is --
2 THE COURT: It sounds to me that there is a
3 whole lot of stuff that can be stipulated to. We can
4 probably streamline a lot of this.
5 MS. GEMMILL: We would be happy to do that,
6 Your Honor. I don't want to overly anticipate the arguments
7 of opposing counsel, but we understand that's really the
8 only issue really before this Court. I don't think the
9 issue is whether Sam's Club sells groceries. The issue is
10 looking at the language of that lease amendment, does Sam's
11 Club fall within that. It's our position that it does not.
12 MR. WINTERS: If it may please the Court, I'm
13 Brad Winters, Your Honor, for THE Realty. I was wondering
14 if the Court does have a copy of the amendment that we're
15 talking about here today. I'll hand one up if you don't.
16 THE COURT: I'll certainly be happy to look
17 at it.
18 MR. WINTERS: It bears a marking of Exhibit B.
19 It's a relatively short amendment to a 1992 lease agreement.
20 THE COURT: And for that I am grateful.
21 MR. WINTERS: Frankly, there's only two
22 provisions, and two short ones, in fact, that apply here.
23 THE COURT: Which makes me even more
24 grateful. Can you give me the numbers.
25 MR. WINTERS: Yes, sir. Both of them on Page 2.'
8
• !
1 The first is Recital G at the very top, and the second is
2 the numbered Paragraph 5. Ms. Gemmill said, Your Honor,
3 that an exception was carved out for the existing Wal-Mart
4 store. Those were her words.
5 What happened was in 1992, in Paragraph 14.01
6 -- it's a long paragraph in the original lease -- there is
7 this exclusion that says that within the shopping center and
8 within three miles any property that we own shall not be
9 used for a grocery store. It's a long provision, but I
10 think that's a relatively fair paraphrase.
11 THE COURT: When did the Wal-Mart become the
12 fee owner of its property?
13 MR. WINTERS: I don't know, Your Honor, but I
14 know they were the fee owner. I think it goes back quite a
15 ways. We've had 48 hours on this case. That's one fact
16 that we've been trying to run down and can't. But I will
17 tell you that when the amendment was signed, as the Court
18 just saw, it was the fee owner of the property.
19 THE COURT: Well, that's when the amendment
20 was signed. What's going to be relevant, I think, in these
21 proceedings would be if Wal-Mart was the fee owner at the
22 time Giant entered its first lease. There wasn't anything
23 that Giant could do to bind Wal-Mart, necessarily.
24 MR. WINTERS: And I think you'll see, Your
25 Honor, Wal-Mart isn't mentioned, of course, in the original.
9
r
1 THE COURT: Wait a second. Is this Sam's
2 Club going in on property owned by the Defendant or property
3 owned in fee by Wal-Mart?
4 MR. WINTERS: By the Defendant. I'm sorry,
5 Your Honor.
6 MS. GEMMILL: That's correct, Your Honor.
7 THE COURT: Got it.
8 MR. WINTERS: Recital G, Your Honor, does two
9 things that are of core relevance in this case. It defines
10 two terms. It defines Wal-Mart, which is Wal-Mart Stores,
11 Inc., as a corporation, and it defines the Wal-Mart
12 property, which is the area where a Wal-Mart exists at
13 Silver Spring. That is Wal-Mart's fee, Wal-Mart's area.
14 They own it. That's where their store is.
15 If you then go down to 5, you'll see that it
16 says, notwithstanding anything to the contrary contained
17 herein or in the lease, the supermarket restriction shall
18 not apply to Wal-Mart, its successors or assigns. It
19 doesn't say the Wal-Mart property, which is a defined term.
20 It says Wal-Mart, which is a defined term.
21 When Ms. Gemmill said that an exception was
22 carved out for the existing Wal-Mart store so that they
23 could expand into a super center, which they did at some
24 point in the past, when it talks about intent, she's
25 obviously foreshadowing some parol evidence, but she is not
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talking about what this amendment says or what it did. This
amendment doesn't carve out the Wal-Mart property. This
amendment carves out Wal-Mart.
THE COURT: I-don't think she's saying it
carves out the Wal-Mart property. I think what she said was
that Sam's Club is not Wal-Mart. It may be a subsidiary,
but it's a separate corporation. That's her position. What
is your position with regard to that?
MR. WINTERS: Our position is -- first of
all, Your Honor, we do not have a lease yet. What the plan
is here is that there's also a Lowe's store at this center.
It's been dark for some time. Lowe's is gone. They've
continued to pay rent, but it's a large gap in the parking
and there's a large dark store. We own that area.
The Sam's Club that will be coming, we hope,
with permission, of course, will go there on that space,
Lowe's will be taken out, and we will sign a lease. We
anticipate a lease with Wal-Mart for this area, for this
store where the Sam's Club will be. Lowe's will be gone.
We will contract with Wal-Mart, that's our expectation, but
we don't even have a lease yet to contract with Wal-Mart for
this store that's going to go in where the Lowe's is now
dark.
Under the plain reading of this exclusion,
assuming that we do that, it is my understanding -- and I'm
11
• 0
1 representing to the Court that that is my understanding --
2 whether it goes a different way or not, I do not know -- but
3 the anticipation at this time is that we' ll sign a lease
4 with Wal-Mart for this area, take Lowe's out, make Wal-Mart
5 the tenant, and Wal-Mart will either be the tenant with a
6 Sam's operating there or as permitted.
7 THE COURT: I think I'm going to have to get
8 evidence with regard to corporate structure, et cetera, et
9 cetera.
10 MS. GEMMILL: Your Honor, if I could jump in
11 for a second. We actually happen to have the application
12 for registration of fictitious name for Sam's Club, filed in
13 the Commonwealth of Pennsylvania, and it indicates that the
14 owner of that fictitious name is Sam' s East, Inc. So Sam's
15 Club, that fictitious name, is owned by a different entity
16 other than Wal-Mart Stores, Inc.
17 I think what I'm hearing Mr. Winters say is
18 that Sam's Club is going to try to get around the lease
19 restriction by having the lease be put in the name of a
20 different entity, Wal-Mart Stores, Inc., to operate a Sam's
21 Club at that location. Certainly that's not what the
22 parties were intending when they entered into this lease
23 amendment to allow you to get around that by having Wal-Mart
24 lease the space elsewhere in the shopping center as opposed
25 to having the developer lease it directly. I'm very
12
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troubled to hear that's how they intend to get around that.
I don't think that's what the intent of this lease amendment
was. I don't think that's what its language allows. I
realize that I'm stepping on Mr. Winters' toes, and I
apologize for that. But if the Court would like to see a
copy of Exhibit A --
THE COURT: Well, what I'm trying to with
these openings is to figure out where we're going and narrow
the issues and then work up to the day to hear the
testimony. You're telling me there's not even a lease
signed yet?
MR. WINTERS: I'm telling you there's not
even a lease signed yet. Yes, that's correct.
THE COURT: You're telling me the application
for conditional use was filed by Sam's Club East?
MS. GEMMILL: It was filed by the developer,
THF, the Defendant here in this case, to put a Sam's Club
there. What they had indicated to the township, based upon
the correspondence we received from the township, is that
they intend to operate a Sam's Club store there selling
groceries.
THE COURT: I guess what I'll do is hear the
evidence and make a ruling based upon the evidence. I
understand where we're going.
MR. WINTERS: If I may, Your Honor, on that
13
• •
1 issue -- and again, we're operating on about 48 hours
2 notice --
3 THE COURT: And I'm going to give you some
4 more time. As a matter of fact, if you need it to be done,
5 I'll do my best to get it done before the 26th, although
6 that's going to be very difficult.
7 MR. WINTERS: If I may, Your Honor.
8 THE COURT: Go ahead.
9 MR. WINTERS: My understanding is that the
10 conditional use approval by the Board of Supervisors is a
11 step in the process and that there are more steps and
12 that -- and I invite anybody in the room to correct me if
13 I'm wrong, but my understanding is that the final approvals,
14 before the spades can be placed in the earth, are the first
15 quarter of next year time frame. We are pleased to do this
16 now. Frankly, we appreciate that they're sensitive to the
17 equitable defenses and sensitive even inadvertently to our
18 expense, and we appreciate the chance to air this out to the
19 Court at this early moment. I don't think that there's any
20 -- in terms of shoppers or actual competition, more than a
21 year, I would assume -- if anybody knows different, please
22 say so.
23 THE COURT: Well, it would seem to me that if
24 there's no immediate need for a preliminary injunction, I
25 could give plenty of time to consolidate into one to give
14
1 you time for some discovery and just do a hearing on the
2 permanent injunction as long as you agree not to break
3 ground before we get this case resolved. What you're doing
4 as far as moving the process along is at your own risk and
5 expense.
6 MR. WINTERS: Understood.
7 THE COURT: If you're agreeable to doing
8 that, then I can fashion an Order to give you time for
9 discovery and set a date in the fall to try the whole
10 shooting match.
11 MS. GEMMILL: That would be fine with us,
12 Your Honor. Obviously, you understood our concern about
13 them coming back and asserting an equitable defense. And I
14 don't think Mr. Winters was intending to suggest that we
15 were bringing this in without them knowing about it. We
16 have been discussing this issue for a year, and they've
17 known about this issue. I don't think that's what they're
18 suggesting, but to the extent that the Court perceived it as
19 that we had sandbagged them 48 hours ago, it's been a year
20 that we've been talking about this issue, just to make sure
21 that's clear.
22 THE COURT: It's 78 degrees and sunny. Do
23 you think I would have set this hearing this afternoon if I
24 didn't think there was some urgency? Now that I see there's
25 no urgency --
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MS. GEMMILL: With that stipulation from
counsel, we don't see the urgency anymore either. If
they're willing to stipulate that they're not going to come
back after us for --
THE COURT: Well, what I'll do is basically
enter an Order that by agreement of the parties this hearing
will -- I can schedule a date in the fall or early winter,
if you wish, to give you time to get your discovery done.
If you want to take a few minutes now to try to come up with
a schedule for discovery, depositions, et cetera, and set a
trial date, I'll be happy to do that, and we'll get it all
resolved right now.
MR. WINTERS: I want to make sure with my
client that there isn't some large expense item looming
and --
THE COURT: Why don't we take about 20
minutes. You can contact your client. The Order will
basically provide that there is no need for the preliminary
injunction at this point as long as the Defendant
understands that they're proceeding at their own risk, and
we'll go from there.
MR. WINTERS: We're a long way from breaking
ground, as I said, Your Honor.
THE COURT: Let's reconvene about 3:15.
MR. WINTERS: Yes, sir.
16
•
1 MS. GEMMILL: If we're ready before that,
2 we'll let you know.
3 THE COURT: Good enough. All right.
4 (A recess was taken.)
5 THE COURT: What did we come up with?
6 MS. GEMMILL: Mr. Winters.
7 MR. WINTERS: Your Honor, if it pleases the
8 Court, the week of September 11th, that Monday, Tuesday or
9 Wednesday, what we were talking about, I think we anticipate
10 we'll ask the Court to gave us a half a day, and we're
11 hopeful that we can stipulate -- just call you and tell you
12 we'll submit it on stipulations. I don't know how that
13 works for you.
14 THE COURT: It works fine for me.
15 Unfortunately, I have criminal jury trials scheduled that
16 week. So if we're going to need a hearing, I'm going to
17 have to -- I could give October 2nd. If you don't need a
18 hearing, I can give you the afternoon -- well, I could also
19 give you the afternoon of September 7th.
20 MR. WINTERS: That's my birthday, Your Honor,
21 if you don't mind - -
22 THE COURT: I don't mind.
23 MR. WINTERS: -- and my anniversary, which
24 makes it painful.
25 MS. GEMMILL: October 2nd would be fine with
17
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1 me, Your Honor. I hope we don't need a hearing.
2 THE COURT: Should I schedule a half a day or
3 a full day?
4 MS. GEMMILL: I really think a half a day
5 would be fine.
6 THE COURT: Okay, October 2nd. I see it's a
7 Jewish holiday, Yom Kippur.
8 MR. WINTERS: It is.
9 THE COURT: How about the afternoon of
10 October 5?
11 MR. WINTERS: That's fine.
12 MS. GEMMILL: That's fine with us, Your
13 Honor.
14 THE COURT: Okay. You don't need any
15 scheduling order?
16 MS. GEMMILL: We talked about the little bit
17 of discovery that we want to take, and we will work together
18 to accomplish that plenty of time beforehand.
19 THE COURT: Good. We'll enter the following
20 Order:
21 "AND NOW, this 7th day of July, 2006, by
22 agreement of the parties, there is no need for a hearing on
23 the request for a preliminary injunction. The Defendant
24 realizes that it will proceed in its effort to get the
25 necessary approvals at its own risk. Further, the parties
18
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1 have agreed that we will have a hearing on the request for a
2 permanent injunction on the afternoon of Thursday, October
3 5, 2006, commencing at 1:00 p.m."
4 And if you reach a stipulation, that's fine,
5 submit it. Let me know that I should decide it based upon
6 the stipulated facts with no need for the hearing.
7 All right. Good enough. Anything else?
8 MS. GEMMILL: No, Your Honor.
9 THE COURT: Good. Court is adjourned.
10 (Court was adjourned.)
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0 6
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause and that this is a correct transcript of
same.
Susan Rice Stoner
Official Stenographer
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
??db
Date
Edward E. Guido, J.
20
m r?
GIANT FOOD STORES, LLC, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V.
THE SILVER SPRING NO. 2006 - 3688 EQUITY
DEVELOPMENT, L.P. and
WAL-MART, INC.,
Defendants CIVIL ACTION - EQUITY
ORDER OF COURT
AND NOW, this 11TH day of SEPTEMBER, 2006, the hearing scheduled for
Thursday, October 5, 2006, at 1:00 p.m. is rescheduled for FRIDAY, NOVEMBER 17,
2006, at 8:30 a.m. in Courtroom # 3.
Edward E. Guido, J.
y-Ielen L. Gemmill, Esquire
Kandice Giurintano, Esquire
For the Plaintiff
Aradley A. Winters, Esquire
Michael M. Godsy, Esquire
For the Defendant
Mark E. Lovett, Esquire
For the Defendant
,James A. Diamond, Esquire
For Wal-Mart, Inc.
41-7z
O?
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:sld
SONNENSCHEIN, NATH & ROSENTHAL LLP
Bradley A. Winters, pro hac vice
Michael M. Godsy, pro hac vice
One Metropolitan Square, Suite 3000 Attorneys for Defendant
St. Louis, Missouri 63102
(314) 241-1800
(314) 259-5959 (facsimile)
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett
Attorney ID # 41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254
(717) 299-3160 (facsimile)
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC,
Plaintiff,
V.
CIVIL ACTION - EQUITY
Case No. 06-3688 Civil Term
THF SILVER SPRING DEVELOPMENT,
L.P.,
Defendant.
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW Defendant THF Silver Spring Development, LP ("THF"), by and through
undersigned counsel, and for its answer to Plaintiffs Complaint for Injunctive Relief states as
follows:
1. THF is without sufficient information to admit or deny the allegations in
paragraph 1 of Plaintiffs Complaint.
2. THF is without sufficient information to admit or deny the allegations in
paragraph 2 of Plaintiff s Complaint.
3. Admitted.
4. THE admits it is a limited partnership. THE denies the remaining allegations in
paragraph 4 of Plaintiff's Complaint.
5. Admitted.
6. Admitted.
7. Admitted.
8. THE admits that Plaintiff operated a supermarket from the Premises for a certain
period of time, but denies all remaining allegations, express or implied, in paragraph 8 of
Plaintiff's Complaint.
9. THE admits that the quoted language appears in the Lease Agreement. THE
denies all remaining allegations, express or implied, in paragraph 9 of Plaintiff's Complaint.
10. THE admits that the Lease Agreement contains the nullification provision referred
to in paragraph 10 of Plaintiff s Complaint.
11. Admitted.
12. Admitted.
13. Admitted.
14. Admitted.
15. Admitted.
16. Denied.
17. Admitted.
18. Admitted.
19. Denied.
20. Admitted.
21. Admitted.
-2-
23209149W-1
22. THE admits the allegations in paragraph 22 of Plaintiff's Complaint, but denies
any allegation, express or implied, that the First Amendment only permitted Wal-Mart or its
assigns to sell groceries from Wal-Mart's then-existing facility in the Shopping Center.
23. THE admits that, under the First Amendment, the Supermarket Restriction does
not apply to Wal-Mart Stores, Inc., its successors or assigns.
24. Denied.
25. Admitted.
26. THE is without sufficient information to admit or deny the allegations in
paragraph 26 of Plaintiff's Complaint.
27. THE admits that Sam's Club is a distinct entity from Wal-Mart Stores, Inc. THE
denies all remaining allegations in paragraph 27 of Plaintiff's Complaint.
28. Denied.
29. THE admits that Giant no long operates a supermarket in the Shopping Center,
but continues to operate other supermarkets.
30. Admitted.
31. THE is without sufficient information to admit or deny the allegations in
paragraph 31 of Plaintiff's Complaint.
32. Paragraph 32 does not contain any allegations of fact to which THE is required to
respond. To the extent paragraph 32 is deemed to contain such allegations, THE denies them.
33. Denied.
34. Denied.
35. Denied.
36. Denied.
37. Denied.
-3-
23209149\V-1
38. Denied.
AFFIRMATIVE DEFENSES
COMES NOW Defendant THE Silver Spring Development, LP, and for its affirmative
defenses to Plaintiff's Complaint states as follows:
A. Plaintiff has failed to state a claim upon which relief may be granted, in that the
allegations, Exhibits and Attachments fail to allege any cognizable or anticipated violation of the
Supermarket Restriction under the Lease or First Amendment thereto.
B. Plaintiff is estopped by the First Amendment from contending that THF, a good
faith purchaser, has no right to lease premises within the Shopping Center to Wal-Mart Stores,
Inc., or that Wal-Mart Stores, Inc. may then assign such a lease to a supermarket operator.
C. Plaintiff's claims are not ripe. No lease agreements between THE and Sam's
Club have been entered into. Under the terms of Giant's First Amendment to its Lease, THE has
various options for structuring a leasing arrangement which would not violate the terms of any
agreement upon which Giant bases its claims. Until such violation is shown, Giant would
merely be asking this Court to render an advisory opinion.
WHEREFORE, for the foregoing reasons, Defendant THE Silver Spring Development
LP respectfully requests this Court to dismiss Plaintiff's Complaint with prejudice, and to award
Defendant its costs in this matter, and for such other and further relief as this Court deems just
and appropriate.
-4-
23209149\V-1
Respectfully submitted,
SONNENSCHEIN, NATH & ROSENTHAL LLP
By:
ra ey A. Winters
Michael M. Godsy
One Metropolitan Square, Suite 3000
St. Louis, Missouri 63102
(314) 241-1800
(314) 259-5959 (facsimile)
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett
Attorney ID # 41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254
(717) 299-3160 (facsimile)
Attorneys for Plaintiffs Plaintiffs THE Silver Spring
Development, L. P.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing document
was placed in the United States mail, postage pre-paid, to
Helen L. Gemmill, Esq.
McNees Wallace & Nurick LLC
100 Pine Street
P. O. box 1166
Harrisburg, PA 17108
on this 6th day of October, 2006.
c
-5-
23209149\V-1
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4
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11/03/2006 14:08 FAX 717 237 5300 MCNEES WALLACE & NURICK 12002/002
• .................................... ................................
NOV-03-2006 FRI 11:28 AM ilartman Underhill Brubak FAX NO, .. 03
+Y
'1 C
Docket No, Civil 'T'erm 06-3688
HARTMAN UNTDERMLL & BRUBAKER L.LP
By: Mark E. LovctLB squire
Attorney LD. No. 41071
221 East 0csUtut Street
Laricastw, 111A 11602-7,782
(717) 299-7254 F;lx.: (717) 299-3160
Attorneys for Defendant
MCNEES W ALLACE, & NURICK LLP
Sy: Helen L. Gcrnmiu, Esquire
Attorney I.U. No. L o4
100 Pine Street
Il.arrishurg, kA 1.7108
(717) ',r32-80001 ax: 237-5300
AttonicyS for Plaintiff
GIAN'T' F 0 0 D ST0RR: ,! , LL C, fN THE C:OUKI' OF COMMON PLEAS OF
Plaintiff CC fMBEPd-AND Wt7NTY, PENNSYLVANIA
V. CIVIL ACTION EQt.jri'y
T.HF SILVER SPRING No, 06-3688 Civil Term
DEVELOPMENT, L.P.
Defendant
SLIMLA-
Plaintiff; Giant Food Stores, LLC, and Defendant, THE Silver Spring
Development, L.P., by and through their respective counsel, hereby stipulate and ame
that the Defendant may file an Amended Answer with Now Matter to Plaintiff s
Complaint pttrsuant to Pcraisylvauia R'J1c of Civil procedure 1033.
Date: 3 N of C'b
Datc:.......III. ?
H ' UND TALL & A . AKER LLP
By:
vtark 1~. I..r?vett, Escltt'
Attorney I.D. No. 41071
Attorneys for Defendant
MaNRF,S WA.I. LACE & NURECK. I...Lc
I•iclen L. Genmiill, Esquire
Attoruuy I.D. No. b 6W
Attorneys for Plaintiff
D0455117.1.1
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SONNENSCHEIN, NATH & ROSENTHAL LLP
Bradley A. Winters, pro hac vice
Michael M. Godsy, pro hac vice
One Metropolitan Square, Suite 3000
St. Louis, Missouri 63102
(314) 241-1800
(314) 259-5959 (facsimile)
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett
Attorney ID # 41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254
(717) 299-3160 (facsimile)
Attorneys for Defendant
0)11GNJ
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC, )
Plaintiff )
V. )
)
THE SILVER SPRING DEVELOPMENT, )
L.P., )
Defendant )
CIVIL ACTION - EQUITY
Case No. 06-3688 Civil Term
NOTICE TO PLEAD
TO: GIANT FOOD STORES, LLC
c/o Helen L. Gen mill, Esq.
McNees Wallace & Nurick LLC
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108
You are hereby notified to file a written response to the enclosed Amended New Matter
within twenty (20) days from service hereof or a judgment may be entered against you.
H ?TNLANND R LLP
By:
Mark E. Lovett
Attorney ID # 41071
23209]49\V-]
SONNENSCHEIN, NATH & ROSENTHAL LLP
Bradley A. Winters, pro hac vice
Michael M. Godsy, pro hac vice
One Metropolitan Square, Suite 3000 Attorneys for Defendant
St. Louis, Missouri 63102
(314) 241-1800
(314) 259-5959 (facsimile)
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett
Attorney ID # 41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254
(717) 299-3160 (facsimile)
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC,
Plaintiff
V.
CIVIL ACTION - EQUITY
Case No. 06-3688 Civil Term
THE SILVER SPRING DEVELOPMENT,
L.P.,
Defendant
DEFENDANT'S AMENDED ANSWER WITH NEW MATTER
1-2. Denied. Defendant THE Silver Spring Development, L.P. (THF) is without
information or knowledge sufficient to form a belief as to the truth of the averment.
3. Admitted.
4. THE admits it is a limited partnership. The remaining allegations are denied
because THF's principal place of business is Carlisle, Pennsylvania.
5. Admitted.
6. Admitted.
{00454595.1}
7. Admitted.
8. Admitted that Plaintiff operated a supermarket from the Premises for a certain
period of time. The remaining allegations are denied. Giant left the leased premises in April of
2001, and operated a grocery store in an adjoining shopping center.
9-10. Denied. The Lease Agreement speaks for itself.
11. Admitted.
12. Admitted.
13. Admitted.
14. Admitted.
15. Admitted.
16. Denied. Giant relinquished any interest in enforcing the Supermarket Restriction
as it applied to Walmart Stores, Inc., and its successors and assigns.
17. Admitted.
18. Admitted.
19. Denied for the reasons set forth in response to paragraph 16.
20. Admitted.
21. Admitted.
22. THE admits the allegations in paragraph 22 of Plaintiff's Complaint, but denies
any allegation, express or implied, that the First Amendment only permitted Wal-Mart or its
assigns to sell groceries from Wal-Mart's then-existing facility in the Shopping Center.
23. THE admits that, under the First Amendment, the Supermarket Restriction does
not apply to Wal-Mart Stores, Inc., its successors or assigns.
24. Denied. THE does not intend to lease to Sam's Club East, Inc., t/d/b/a Sam's
Club.
{00454595.1}- 2 -
23209149\V-1
25. THE admits that a conditional use application has been filed with the Silver
Spring Township seeking permission to operate a facility at the Shopping Center. After
reasonable investigation, THE is without knowledge or information sufficient to form a belief as
to the truth of the averment as to the entity filing the application.
26. Denied. After reasonable investigation, THE is without information or
knowledge sufficient to form a belief as the truth of the averment.
27. Admitted that Sam's Club East, Inc., t/d/b/a Sam's Club (if such entity exists) is a
distinct entity from Wal-Mart Stores, Inc. The remainder of the allegation is denied as a
conclusion of law.
28. Denied as a conclusion of law.
29. Admitted that Giant no longer operates a supermarket in the Shopping Center, but
continues to operate other supermarkets.
30. Admitted.
31. Denied. After reasonable investigation THE is without information or knowledge
sufficient to form a belief as to the truth of the averment.
32. Denied as a conclusion of law.
33. Denied as a conclusion of law.
34. Denied as a conclusion of law.
35. Denied as a conclusion of law.
36. Denied as a conclusion of law.
37. Denied as a conclusion of law.
38. Denied as a conclusion of law.
WHEREFORE, Defendant requests that judgment be entered in its favor and against the
Plaintiff.
{00454595.1}- 3 -
23209149\V-1
NEW MATTER
39. Plaintiff has failed to state a claim upon which relief may be granted, in that the
allegations, Exhibits and Attachments fail to allege any cognizable or anticipated violation of the
Supermarket Restriction under the Lease or First Amendment thereto.
40. Plaintiff is estopped by the First Amendment from contending that THF, a good
faith purchaser, has no right to lease premises within the Shopping Center to Wal-Mart Stores,
Inc., or that Wal-Mart Stores, Inc. may then assign such a lease to a supermarket operator.
41. Plaintiff's claims are not ripe. No lease agreements between THE and Sam's
Club have been entered into. Under the terms of Giant's First Amendment to its Lease, THE has
various options for structuring a leasing arrangement which would not violate the terms of any
agreement upon which Giant bases its claims. Until such violation is shown, Giant would
merely be asking this Court to render an advisory opinion.
WHEREFORE, Defendant THE Silver Spring Development LP respectfully requests this
Court to dismiss Plaintiffs Complaint with prejudice, and to award Defendant its costs in this
matter, and for such other and further relief as this Court deems just and appropriate.
Respectfully submitted,
ARTMAN UNDERHILL BRUBAKER LLP
By:
Mark E. Lovett
Attorney ID # 41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254
(717) 299-3160 (facsimile)
Attorneys for Defendant, THE Silver Spring
Development, L.P.
{00454595.1}- 4 -
23209149W-1
VERIFICATION
I, Mark E. Lovett, Esquire, hereby verify that I am the attorney for the Defendant,
THE Silver Spring Development, L.P., in the foregoing action and that the attached
document is based on information which has been given to me, provided by me or which
has been gathered in the defense of this lawsuit. The language of the attached document
is mine. I have read the document, and to the extent that it is based upon information
which has been given to me, provided by me or which has been gathered in the defense of
this lawsuit, it is true and correct to the best of my knowledge, information and belief. I
understand that I am subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn
falsification to authorities for any false statements.
Dated: 3 ?av O C?
Mark E. Lovett, Esquire
00276257.1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am this day serving the foregoing document upon the
persons and in the manner indicated below.
Service by first class mail and addressed as follows:
Helen L. Gemmill, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
HARTMAN UNDERHILL & BRUBAKER LLP
Date ) N Q'4 By:
Mark E. Lovett
Attorney I.D. #41071
Attorneys for Defendant
221 East Chestnut Street
Lancaster, PA 17602
(717) 299-7254
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC,
CIVIL ACTION - EQUITY
Plaintiff
NO. 06-3688
V.
THE SILVER SPRING DEVELOPMENT,
L.P.
Defendant
REPLY TO NEW MATTER
Plaintiff Giant Food Stores, LLC ("Giant"), by and through its attorneys McNees Wallace
& Nurick LLC, offers the following Reply to the New Matter of Defendant THE Silver Spring
Development, L.P.
39. Denied. The averments of this paragraph constitute conclusions of law to which
no response is required. To the extent a response is deemed required, the averments of this
paragraph are denied. Giant has stated a claim upon which relief can be granted.
40. Denied. The averments of this paragraph constitute conclusions of law to which
no response is required. To the extent a response is deemed required, the averments of this
paragraph are denied. Giant is not estopped by the First Amendment to the Lease from asserting
its claim.
41. Denied. The averments of this paragraph constitute conclusions of law to which
no response is required. To the extent a response is deemed required, the averments of this
paragraph are denied. Giant's claim is ripe.
WHEREFORE, Plaintiff Giant Foods Stores, LLC respectfully requests that the Court
enter judgment in its favor and against Defendant THE Silver Spring Development, L.P.
McNEES WALLACE & NURICK LLC
By
I.D. No. 86345
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff Giant Food Stores, LLC
Dated: November 15, 2006
Kandice J. Giurintano
VERIFICATION
Subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to
authorities, I hereby certify that I am the Vice-President of Real Estate for Giant Food Stores,
LLC. In that capacity, I am authorized to make this Verification on its behalf I further certify
that the facts set forth in the foregoing document are true and correct to the best of my
knowledge or information and belief.
Giant Food Stores, LLC
sy
Gerry A, s
Dated: `Ll o? ? q
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served by first-class mail,
postage prepaid, and by facsimile, upon the following, on the date indicated below:
Mark E. Lovett
Hartman, Underhill & Brubaker LLP
221 East Chestnut Street
Lancaster, PA 17602
Bradley A. Winters
Michael M. Godsy
Sonnenschein, Nath & Rosenthal LLP
One Metropolitan Square
Suite 3000
St. Louis, MO 63102-2741
Dated: November 15, 2006
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GIANT FOOD SOTRES, LLC,
Plaintiff
VS
THE SILVER SPRING DEVELOPMENT,
L.P. and WAL-MART, INC.,
Defendants
: IN THE OCURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-3688 EQUITY
CIVIL ACTION - EQUITY
ORDER OF COURT
AND NOW, this 17th day of November, 2006, Plaintiff's
Exhibits 1 through 13 are admitted without objection as to
authenticity but with the reservation as to the Court considering
any parole evidence.
Defendant's Exhibits l through 7 are admitted by
agreement of the parties and without objection save for the
relevancy and parole evi ce iss e.
By he Court,
wara L.
Helen L. Gemmill, Esquire
Kandice Giurintano, Esquire
For the Plaintiff
Bradley A. Winters, Esquire
Michael M. Godsy, Esquire
For the Defendant
Mark E. Lovett, Esquire
For the Defendant
James A. Diamond, Esquire
For Defendant Wal-Mart, Inc.
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JUV
GIANT FOOD SOTRES, LLC,
Plaintiff
VS
THE SILVER SPRING DEVELOPMENT,
L.P. and WAL-MART, INC.,
Defendants
: IN THE OCURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-3688 EQUITY
CIVIL ACTION - EQUITY
ORDER OF COURT
AND NOW, this 17th day of November, 2006, by agreement
of the parties, they will be filing cross motions for summary
judgment and listing the matter for argument court. Pending the
filing and arguing of those motions, these proceedings are
continued generally.
By
Edward E. Guido, J.
Helen L. Gemmill, Esquire
Kandice Giurintano, Esquire
For the Plaintiff
Bradley A. Winters, Esquire
Michael M. Godsy, Esquire
For the Defendant
Mark E. Lovett, Esquire
For the Defendant
James A. Diamond, Esquire
For Defendant Wal-Mart, Inc.
:mlc
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC,
Plaintiff
V.
CIVIL ACTION - EQUITY
NO. 06-3688
THE SILVER SPRING DEVELOPMENT,
L.P.
Defendant
MOTION FOR SUMMARY JUDGMENT
OF PLAINTIFF GIANT FOOD STORES LLC
Plaintiff Giant Food Stores, LLC ("Giant"), by and through its attorneys, McNees
Wallace & Nurick LLC, respectfully moves this Court for summary judgment under Rule 1035.2
of the Pennsylvania Rules of Civil Procedure and, in support thereof, state as follows:
1. Relevant Procedural Histdry
1. Giant commenced this action by filing its Complaint for Injunctive Relief against
Defendant THE Silver Spring Development, L.P. ("THF") on June 28, 2006.
2. On June 28, 2006, Giant also filed its Motion for Preliminary Injunction,
requesting an injunction prohibiting THE from allowing Sam's East, Inc. t/d/b/a Sam's Club to
use a portion of the Silver Spring Commons Shopping Center for the sale of groceries, meats,
fresh fruits, vegetables, frozen foods and deli/bakery products f6r off-premises consumption.
3. At a hearing on the preliminary injunction on July 7, 2006, the Court continued
the matter until such time as discovery in the action could be completed and a hearing on a
permanent injunction held.
4. A hearing on a permanent injunction was held on November 17, 2006.
5. At the hearing on the permanent injunction, the parties agreed to file cross
motions for summary judgment. The Court accepted the parties' exhibits into evidence. The
Court then continued the hearing generally pending its ruling on the anticipated summary
judgment motions.
II. Statement of Undisputed Facts
A. The Parties
6. Giant is a Pennsylvania limited liability company and the successor in interest to
Giant Food Stores, Inc. See Complaint ¶¶ 1-2.
7. Giant's principal business is the operation of supermarkets for the retail sale of
groceries and food products. See Complaint ¶ 3; Amended Answer ¶ 3.
8. THE is a Missouri limited partnership and the successor in interest to Eastern
Retail Holdings Limited Partnership ("Eastern Retail"), which, in turn, was the successor in
interest to Silver Spring Center Limited partnership ("Silver Spring Center"). See Complaint T¶
4-5; Amended Answer 14-5.
9. THE is the owner of a parcel of real property located in Silver Spring Township,
Cumberland County, on which is located, in part, the Silver Spring Commons Shopping Center
(the "Shopping Center"). See Complaint ¶ 6; Amended Answer ¶ 6.
B. The Lease Agreement and Supermarket Restriction
10. On May 29, 1992, Giant's predecessor in interest, Giant Food Stores, Inc., entered
into an agreement to lease a portion of the Shopping Center from THF's predecessor in interest,
Silver Spring Center (the "Lease Agreement"). See Plaintiffs Exhibit 1.
11. Following the execution of the Lease Agreement, Giant operated a supermarket
from the leased premises (the "Premises"). See Complaint ¶ 8; Amended Answer ¶ 8.
2
12. The Lease Agreement contains a restrictive covenant preventing the landlord
(now THF) from leasing any other portion of the Shopping Center to a tenant who intends to sell
groceries or operate a supermarket from the leased space (the "Supermarket Restriction"). See
Plaintiffs Exhibit 1 (Lease Agreement § 14.01).
13. Specifically, Section 14.01 of the Lease Agreement states that the landlord:
covenants and agrees that, for the term of this Lease and any
extension thereof, no store(s) and/or building(s), or any part of
same, now or hereafter acquired and/or constructed by Landlord
within the Shopping Center or upon any property within a three (3)
mile distance therefrom (as measured by the shortest driving
distance by automobile from the Premises) in which the Landlord
has an ownership interest shall be used for the sale (at retail or
wholesale), for off-premises consumption of groceries, meats,
fresh fruits, vegetables, frozen foods and deli/bakery products.
Plaintiffs Exhibit 1 (Lease Agreement § 14.01).
14. The Lease Agreement also contains a provision nullifying the Supermarket
Restriction if Giant fails to use the Premises as a supermarket for a period in excess of six
months. See Plaintiffs Exhibit 1 (Lease Agreement § 14.01).
C. The Subleases and Modifications to the Lease Agreement
15. On or about April 24, 2001, Giant discontinued its use of the Premises as a
supermarket, but continued as the lessee of the Premises under the Lease Agreement and
continued to pay rent to the landlord. See Complaint ¶ 11; Amended Answer ¶ 11.
16. Thereafter, Giant began operating a supermarket in another retail center across the
street from the Shopping Center. See Complaint ¶ 11; Amended Answer ¶ 11.
IT Giant continued to have an interest in the enforcement of the Supermarket
Restriction because of its operation of a supermarket in a location nearby the Premises. See
Complaint ¶ 16.
3
18. Following the closing of its supermarket at the Premises, Giant attempted to
sublease the Premises. See Complaint ¶¶ 13-14; Amended Answer ¶ 13-14.
19. At the time Giant was attempting to sublease the Premises, Wal-Mart Stores, Inc.
("Wal-Mart") was operating a store in the Shopping Center. See Complaint ¶ 21; Amended
Answer ¶ 21.
20. At the time Giant was attempting to sublease the Premises, Wal-Mart wished to
expand its existing store into a "Supercenter" and to sell groceries from the expanded facility.
See Complaint ¶ 21; Amended Answer ¶ 21.
21. On June 27, 2001, in anticipation of subleasing the Premises to a subtenant, Giant
and Eastern Retail (the then current landlord), entered into a letter agreement (the "First Letter
Agreement") whereby Eastern Retail agreed to permit the subleasing of the Premises to a
subtenant and to continue the Supermarket Restriction under the Lease Agreement despite
Giant's discontinuance of its use of the Premises as a supermarket. See Plaintiffs Exhibit 3.
22. Specifically, Eastern Retail agreed that:
In consideration of [Giant's] funding of the improvements to be
constructed by [the subtenant] Landlord shall waive the
nullification of the use restrictions by virtue of [Giant's]
discontinuance of supermarket operations, and shall agree that the
use restrictions contained in Section 14.01 (the "Supermarket
Restriction") shall be reinstated and thereafter would expire on the
expiration date of the original term of the Lease... .
Plaintiffs Exhibit 3 (First Letter Agreement ¶ A.4.).
23. In exchange for this approval of the sublease and the extension of the
Supermarket Restriction, Giant agreed to fund improvements requested by the prospective
subtenant and also to permit an exception to the Supermarket Restriction to allow Wal-Mart to
expand its current store into a Supercenter that sells groceries. See Plaintiffs Exhibit 3.
4
•
24. Specifically, in the First Letter Agreement, Giant agreed to approve in writing:
(a) Wal-Mart's operation of a supermarket, (b) the expansion of
the Wal-Mart Store into a portion of the shopping center owned by
Landlord, approximately as shown on the Sketch Plan attached
hereto as Schedule B. The result will be that the Wal-Mart store
will be expanded to contain approximately 200,000 square feet of
space, some of which, as determined by Wal-Mart, will be devoted
to supermarket type uses; and (c) the expansion of that portion of
the overall shopping center now owned by Wal-Mart to include the
building expansion area and two additional lanes of parking, all as
shown on Exhibit B.
Plaintiffs Exhibit 3 (First Letter Agreement ¶ B.2.).
25. The First Letter Agreement includes a Schedule B, which is a plan identifying the
proposed expansion of the Wal-Mart store. See Plaintiffs Exhibit 3.
26. The First Letter Agreement was drafted and signed on behalf of Eastern Retail
and subsequently signed on behalf of Giant indicating Giant's agreement to and acceptance of its
terms. See Plaintiffs Exhibit 3.
27. As contemplated in the First Letter Agreement, on or about September 20, 2001,
Giant entered into a sublease with Marmaxx Operating Corp. ("Marmaxx") pursuant to which
Marmaxx occupies a portion of the Premises. See Complaint ¶ 13; Amended Answer ¶ 13.
28. On the date of the execution of the sublease with Marmaxx, Giant and Eastern
Retail reaffirmed their commitments in First Letter Agreement through the execution of a second
letter agreement (the "Second Letter Agreement"). See Plaintiffs Exhibit 4.
29. In the Second Letter Agreement, Giant confirmed that it had no objection to the
"construction by Wal-Mart of an expansion to the existing Wal-Mart store" and the operation of
the expanded store as a Supercenter. Plaintiffs Exhibit 4 (Second Letter Agreement ¶ 1).
30. The Second Letter Agreement includes an Exhibit A, which specifically identifies
the area into which the Wal-Mart store was to expand. See Plaintiffs Exhibit 4.
5
if
31. The Second Letter Agreement was drafted and signed on behalf of Eastern Retail
and subsequently signed on behalf of Giant indicating Giant's agreement to and acceptance of its
terms. See Plaintiffs Exhibit 4.
32. After Giant entered into the sublease with Marmaxx, a portion of the Premises
remained vacant. See Complaint ¶ 14; Amended Answer ¶ 14.
33. On or about July 1, 2003, Giant entered into a sublease with A.C. Moore, Inc.
("Moore") pursuant to which Moore occupies the remainder of the Premises not leased to
Marmaxx. See Complaint ¶ 14; Amended Answer ¶ 14.
34. On or about September 9, 2003, Giant and Eastern Retail executed the First
Amendment to the Lease Agreement (the "First Amendment"). See Plaintiffs Exhibit 5.
35. Consistent with the prior letter agreements, the First Amendment modifies the
Supermarket Restriction retroactively to September 20, 2001 by nullifying the portion of the
restriction that rendered it inoperative in the event that Giant ceased to use the Premises as a
supermarket for a period in excess of six months. See Plaintiffs Exhibit 5 (First Amendment ¶
4).
36. The First Amendment provides that the Supermarket Restriction would remain in
full force and effect throughout the term of the Lease Agreement. See Plaintiffs Exhibit 5 (First
Amendment ¶ 4).
37. Specifically, the First Amendment states that:
Landlord and Tenant agree that, effective upon the execution of the
Marmaxx Sublease on or about September 20, 2001, Section 14.01
of the Lease shall have been amended to provide that, whether or
not the Demised Premises is operated as a supermarket or for the
sale of food, the Supermarket Restriction shall remain in full force
and effect throughout the original term of the Lease and shall
expire and terminate only (i) upon an uncured Tenant Default as
6
set forth in Section 24.01 of the Lease, or (ii) on the Expiration
Date.
Plaintiffs Exhibit 5 (First Amendment ¶ 4).
38. The First Amendment also contains a provision for an exception to the reinstated
Supermarket Restriction. The provision states:
Notwithstanding anything to the contrary contained herein or in the
Lease, the Supermarket Restriction shall not apply to Wal-Mart, its
successors or assigns.
Plaintiffs Exhibit 5 (First Amendment ¶ 4).
39. The First Amendment includes an Exhibit A, which identifies the area of the
expanded Wal-Mart Supercenter in the Shopping Center. See Plaintiffs Exhibit 6.
40. The First Amendment does not contain an integration clause that indicates that the
First Amendment subsumes or replaces prior agreements between the parties. See Plaintiffs
Exhibit 5.
41. Subsequent to the execution of the First Amendment, THE purchased the
Shopping Center from Eastern Retail and assumed Eastern Retail's rights and responsibilities
under the Lease Agreement, the two letter agreements, and the First Amendment. See Complaint
¶ 5.
D. The Proposed Sam's Club
42. "Sam's Club" is a retail store that sells, among other things, groceries, meats, fresh
fruits, vegetables, frozen foods and deli/bakery products for off-premises consumption. See
Complaint ¶ 28; Plaintiffs Exhibit 11.
43. In Pennsylvania, the fictitious name "Sam's Club" is registered to the corporation
Sam's East, Inc. ("Sam's East"). See Plaintiffs Exhibit 13.
7
44. Wal-Mart previously had registered the fictitious name "Sam's Club" in
Pennsylvania, but Wal-Mart canceled its registration on February 9, 2001, the same date that
Sam's East registered the fictitious name "Sam's Club." See Plaintiffs Exhibit 13.
45. Sam's East is a distinct entity from Wal-Mart and is separately incorporated. See
Plaintiffs Exhibit 13.
46. THE has filed a conditional use application with Silver Spring Township seeking
permission to locate a Sam's Club at the Shopping Center. See Plaintiffs Exhibit 10.
47. If THE allows a Sam's Club to be located in the Shopping Center and to sell
groceries, meats, fresh fruits, vegetables, frozen foods and deli/bakery products for off-premises
consumption, some Giant customers will shop at the Sam's Club, causing Giant economic loss.
See Complaint ¶ 31.
48. Giant will begin to suffer losses as soon as the Sam's Club begins operations. See
Complaint 134.
III. Grounds For Summary Judgment
49. In this action, Giant seeks a permanent injunction prohibiting THE from locating
a Sam's Club within the Shopping Center until the Supermarket Restriction expires on
November 30, 2012.
50. Summary judgment on Giant's claim is appropriate if the record clearly
demonstrates that there are no genuine issues of material fact and Giant is entitled to judgment as a
matter of law. See Sphere Drake Ins. Co. v. Philadelphia Gas Works, 782 A.2d 510, 512 (Pa.
2001).
51. There are no material facts at issue in this action.
52. Giant is entitled to judgment as a matter of law on its claim for injunctive relief.
8
53. A plaintiff is entitled to permanent injunctive relief where the plaintiffs right to
relief is clear and the relief is necessary to prevent a legal wrong for which there is no adequate
redress at law. See Pestco, Inc. v. Associated Products, Inc., 880 A.2d 700, 710 (Pa. Super.
2005).
A. Giant's Clear Right to Relief
54. Giant's right to relief is clear, as the proposed use by Sam's Club is in direct
violation of the contractual agreements between THE and Giant.
55. The Lease Agreement, the First Letter Agreement, the Second Letter Agreement,
and the First Amendment each prohibit THE from locating a store that sells groceries within the
Shopping Center.
56. These agreements must be read in concert as together constituting the totality of
the parties' agreement.
57. THE intends to locate within the Shopping Center a Sam's Club that will sell
groceries from its store.
58. THF's attempt to place a Sam's Club in the Shopping Center is in violation of the
complete agreement between the parties, comprised of the Lease Agreement, the First Letter
Agreement, the Second Letter Agreement, and the First Amendment.
59. Giant has a right to relief for THF's breach of the parties' agreement.
60. Giant's right to relief is not affected by the exception to the Supermarket
Restriction for Wal-Mart contained in the First Amendment.
61. The corporate entity operating Sam's Club stores in Pennsylvania is Sam's East, a
distinct corporate entity from Wal-Mart; the exception in the First Amendment is inapplicable to
Sam's East.
9
62. The operation of a Sam's Club by Sam's East within the Shopping Center is not
permitted by an exception that applies only to Wal-Mart.
63. Further, to the extent THE seeks to lease a portion of the Shopping Center to Wal-
Mart and allow Wal-Mart to sublease the space to Sam's East for operation of the Sam's Club,
this activity is also not permitted by the exception to the Supermarket Restriction.
64. The exception to the Supermarket Restriction for Wal-Mart applies only to the
property on which the Supercenter is located. The First Letter Agreement and Second Letter
Agreement, and the Exhibits thereto, explicitly indicate that the exception to the Supermarket
Restriction applies only to the expansion of the existing Wal-Mart store. As the Letter
Agreements remain in effect and are not subsumed by the First Amendment, the restriction
limiting the exception to the grounds of the Wal-Mart Supercenter remains in effect.
65. Exhibit A to the First Amendment confirms the limitation of the exception to the
Supermarket Restriction to the Wal-Mart Supercenter property.
66. The parties' agreement, in its entirety, does not permit Wal-Mart to locate
facilities selling groceries anywhere within the Shopping Center other than in the area where the
Supercenter is located. Any action by THE permitting Wal-Mart to sell grocery sales in the
Shopping Center beyond the limits of the Supercenter property is a violation of the Supermarket
Restriction.
67. Since the proposed Sam's Club will not be located on the Wal-Mart Supercenter
property, the exception to the Supermarket Restriction does not operate to permit the proposed
facility.
10
68. Similarly, the language in the First Amendment indicating that the Supermarket
Restriction does not apply to Wal-Mart, its successors and assigns, does not mean that Wal-Mart
may assign any rights related to the Supermarket Restriction to any other person or entity.
69. The language in the First Amendment indicating that the Supermarket Restriction
does not apply to Wal-Mart, its successors and assigns, indicates only that Wal-Mart's successors
in interest may continue to operate a facility that sells groceries from the Supercenter property.
70. An interpretation that permits Wal-Mart to assign any right to any other person or
entity would essentially nullify the reinstated Supermarket Restriction and is, therefore, legally
impermissible. See Capek v. Devito, 767 A.2d 1047, 1050 (Pa. 2001) (holding that, in construing
a contract, effect must be given to all of the provisions therein and that an interpretation will not
be given to one part of a contract that will annul another part of it).
71. Thus, it is clear that the complete agreement between Giant and THF, comprised
of the Lease Agreement, the First Letter Agreement, the Second Letter Agreement, and the First
Amendment, prohibits THE from permitting Sam's Club to operate within the Shopping Center.
72. THE has violated the agreement by attempting to introduce a Sam's Club into the
Shopping Center, and Giant's right to relief for that violation is clear.
B. Injunctive Is Necessary To Prevent A Legal Wrong For Which
There Is Not Adequate Redress At Law
73. A conditional use application has been filed, and the plans for the Sam's Club are
proceeding.
74. Giant will lose customers, sales, and market advantage if a Sam's Club opens for
business across the street from Giant's current store.
75. Damages resulting from this loss of customers, sales and market advantage are
not subject to exact valuation and compensation through damage awards.
11
76. As such, Giant has no adequate remedy at law.
C. Right to Summary Judgment
77. Giant's right to relief is clear and injunctive relief is necessary to prevent a legal
wrong for which there is no adequate redress at law.
78. Giant has established its right to judgment as a matter of law on its claim for
injunctive relief, and there are no genuine issues of material fact in this matter; therefore, Giant is
entitled to summary judgment on its claim. See Sphere Drake, 782 A.2d at 512.
WHEREFORE, Plaintiff Giant Foods Stores, LLC respectfully requests that the Court
enter summary judgment in its favor and enjoin Defendant THE Silver Spring Development, L.P.
from allowing a Sam's Club selling groceries, meats, fresh fruits, vegetables, frozen foods and
deli/bakery products for off-premises consumption to operate within the Silver Spring Commons
Shopping Center until after November 30, 2012.
McNEES WALLACE & NURICK LLC
By
H en L. Gem 1
I.D. No. 60661
Kandice J. Giurintano
I.D. No. 86345
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff Giant Food Stores, LLC
Dated: December 5, 2006
12
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served by first-class mail,
postage prepaid, upon the following, on the date indicated below:
Mark E. Lovett
Hartman, Underhill & Brubaker LLP
221 East Chestnut Street
Lancaster, PA 17602
Bradley A. Winters
Michael M. Godsy
Sonnenschein, Nath & Rosenthal LLP
One Metropolitan Square
Suite 3000
St. Louis, MO 63102-2741
Dated: December 5, 2006
C.7
I''~ CD
1 14
SONNENSCHEIIv, NATH & ROSENTHAL LLP
Bradley A. Winters, pro hac vice
Michael M. Godsy, pro hac vice
One Metropolitan Square, Suite 3000 Attorneys for Defendant
St. Louis, Missouri 63102
(314) 241-1800
(31J4) 259-5959 (facsimile)
HARTMAN i!NDERHILL & BRUBAKER LLP
:Mark L. Lovett
Attorney ID # 41071
221 Fast Chestnut Street
Lancaster. PA 17602-2782
(717)'299-7254
(717) 299-3160 (facsimile)
IN TI{E CUMBERLAND COUNTY COURT OF COMMON PLEAS
COMMONWI ALTH OF PENNSYLVANIA
GIANT FOOD STORES, LLC,
Plaintiff,
V.
CIVIL ACTION - EQUITY
Case No. 06-3688 Civil 'term
THE SILVER. SPRING DEVELOPMENT,
L.P.,
Defendant.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant 'T'HF Silver Spring Development LP ("THF") hereby moves for summary
judgment against Plaintiff Giant Food Stores, LLC ("Giant") on Giant's claim for an injunction
prechl..ding THE from leasing premises in the Silver Spring Commons Shopping Center for use as
a Sam's Club. Asset forth more completely in the accompanying Memorandum supporting this
Motion, Giant's claim must fail because (i ) the unambiguous terms of the relevant contracts
permit THE to lease premises to Wal-Mart Stores, Inc. (and Wal-Mart can assign such a lease)
for the purpose of selling groceries; and (2) Giant's requested restrictive covenant is fraudulent
as a statutory matter and also inequitable to THF, a good-faith purchaser for value of the
Shopping Center
THF incorporates herein the accompanying Memorandum. For the reasons set forth in
this Motion and the accompanying Memorandum, THF is entitled to judgment as a matter of law
on Giant's claim.
Respectfully submitted,
SONNENSCHEJN, MATH & ROSENTHAL LLP
._
By-
ia4yAA i nt rs
Michael M. Godsy
One Metropolitan Square, Suite 3000
St. Louis, Missouri 63102
(314) 241-1800
(314) 259-5959 (facsimile)
and
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett
Attorney ID # 41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254
(717) 299-3160 (facsimile)
Attorneys for Defendant THFSilver Spring
Development, L. P.
-2-
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing document
was sent via Federal Express overnight delivery to:
Helen L. Gemmill, Esq.
McNees Wallace & Nurick LLC
100 Pine Street
P. O. box 1166
Harrisburg, PA 17108
on this 5th day of December, 2006.
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
-------------------------------------- --------------- ---------------------------------------
CAPTION OF CASE
(entire caption must be stated in full}
GIANT FOOD STORES, LLC
(Plaintiff)
vs.
THE SILVER SPRING DEVELOPMENT, L.P.,
(Defendant)
06-3688 Civil
No. , Term
1, State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.): Defendant's Motion for Summary Judgment
2. Identify counsel who will argue cases:
(a) for plaintiff:
Helen L. Gemmill, Esquire
(Name and Address)
McNees Wallace & Nurick LLC, P. 0. Bog 1166, Harrisburg, PA 17108
(b) for defendant: Michael M. Godsy, Esquire, pro hac vice
Bradley A. Winters, Esquire. pro hag vice
(Name and Address)
Sonnenschein, Nath & Rosenthal LLP - One Metropolitan Square, Ste 3000
3. I will notify all parties in writing within two days that this case has been listed for argument. St. Louis, MO 63102
Notified via letter dated December 18, 2006
4, Argument Court Date:
January 24, 2007
Date: December 18, 2006
Mark E. Lovett, Esquire
Print your name
THE Silver Spring Development, L.P.
Attorney for a en ant
f
SONNENSCHEIN, NATH & ROSENTHAL LLP
Bradley A. Winters, pro hac vice
Michael M. Godsy, pro hac vice
One Metropolitan Square, Suite 3000
St. Louis, Missouri 63102
(314) 241-1800
(314) 259-5959 (facsimile)
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett
Attorney ID # 41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254
(717) 299-3160 (facsimile)
Attorneys for Defendant
IN THE CUMBERLAND COUNTY COURT OF COMMON PLEAS
COMMONWEALTH OF PENNSYLVANIA
GIANT FOOD STORES, LLC,
Plaintiff,
V. I
)
THE SILVER SPRING DEVELOPMENT, )
L.P., )
Defendant.
CIVIL ACTION - EQUITY
Case No. 06-3688 Civil Term
DEFENDANT'S RESPONSE TO
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Defendant THE Silver Spring Development, L.P. ("THF") hereby responds to the Motion
for Summary Judgment filed by Plaintiff Giant Food Stores, LLC ("Giant") as follows:
1. Relevant Procedural History
1-5. Admitted.
II. Statement of Undisputed Facts
A. The Parties
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted.
B. The Lease Agreement and Supermarket Restriction
10. Admitted.
11. Admitted.
12. THE denies that the Lease Agreement "contains" the described restrictive
covenant. The Lease Agreement has been amended (see Giant's Motion, ¶ 34, and Plaintiff's
Exh. 5). As Amended, the Lease's Supermarket Restriction does not apply to Wal-Mart Stores,
Inc., its successors and assigns. Plaintiff's Exh. 5, ¶ 5.
13. While THE admits that the Lease Agreement originally contained the quoted
provision, THE denies that Section 14.01 of the Lease Agreement "states" the restrictive
covenant quoted by Giant in ¶ 13 of its Motion. As stated above, the Lease's Supermarket
Restriction as amended states that it does not apply to Wal-Mart Stores, Inc., its successors and
assigns. Plaintiff's Exh. 5, ¶ 5.
14. THE admits that, prior to the First Amendment, the Lease contained a provision
nullifying the Supermarket Restriction under certain circumstances. THE denies, however, that
the Lease Agreement now "contains" that provision.
C. The Subleases and Modifications to the Lease Agreement
15. THE admits the statement in ¶ 15 of Giant's Motion, but denies its materiality to
the issues for decision.
16. THE admits the statement in ¶ 16 of Giant's Motion, but denies its materiality to
the issues for decision.
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23213665\V-2
17. Giant's statement in ¶ 17 of its Motion as to "an interest in the enforcement of the
Supermarket Restriction" is vague. If Giant claims that its "interest" was somehow predicated
upon its Lease Agreement, THE denies ¶ 17, as the Lease Agreement specifically states that the
Landlord has material, overriding duties to "obtain and maintain a balanced and diversified
grouping of sound retail stores, merchandise and services such as will maximize the attraction
and drawing power of the Shopping Center as a whole, and consequently, its aggregate retail
sales." Plaintiff's Exh. 1, ¶ 14.01.
In fact, Giant specifically stated that it "entered into this Lease in reliance on this stated
policy and objective." Id. Giant further acknowledged that its "substantial investment in the
Premises, as well as the rental agreed to in this Lease, assumes a level of sales that would be
generated only by strict adherence to this stated policy and objective." Thus, Giant's "interest"
in the enforcement of the (unamended) Supermarket Restriction depended upon (1) Giant's
occupancy in the Shopping Center, and (2) the Landlord's duty to maintain a "balanced and
diversified grouping" of tenants. Giant's departure from the Shopping Center disrupted the
diversity and balance contemplated in the original Lease Agreement.
18. THE admits the statement in ¶ 18 of Giant's Motion, but denies its materiality to
the issues for decision.
19. THE admits the statement in ¶ 19 of Giant's Motion, but denies its materiality to
the issues for decision.
20. THE admits the statement in ¶ 20 of Giant's Motion, but denies its materiality to
the issues for decision.
21. THE denies that Plaintiff's Exhibit 3 states that (as Giant alleges) "Eastern Retail
agreed to permit the subleasing of the Premises to a subtenant and to continue the Supermarket
Restriction under the Lease Agreement despite Giant's discontinuance of its use of the Premises
-3-
23213665\V-2
as a supermarket." As Plaintiff s Exh. 3 plainly states, the Supermarket Restriction was to be
modified, such that "the Supermarket Restriction .. shall not apply to Wal-Mart Stores, Inc. and
its successors and assigns." Pl. Exh. 3, ¶ A.4.
22. For the reasons stated in answer to 121 above, THE denies the statements in ¶ 22
of Giant's Motion.
23. THE admits that the modification of the Supermarket Restriction allowed Wal-
Mart Stores, Inc. to expand its then-existing store into a Supercenter selling groceries, but THE
denies any implied claim that the only result of the modification was to allow the expansion of
the existing Wal-Mart Store. As noted above (¶ 21), the Supermarket Restriction was to be
modified, such that "the Supermarket Restriction .. shall not apply to Wal-Mart Stores, Inc. and
its successors and assigns." Pl. Exh. 3, ¶ A.4. No limitation of this carve-out was memorialized
so as to restrict its effect to the existing Wal-Mart store.
24. THE admits the statement in ¶ 24 of Giant's Motion, but denies its materiality to
the issues for decision.
25. THE admits the statement in ¶ 25 of Giant's Motion, but denies its materiality to
the issues for decision.
26. Admitted.
27. THE admits the statement in ¶ 27 of Giant's Motion, but denies its materiality to
the issues for decision.
28. THE admits the statement in 128 of Giant's Motion, but denies its materiality to
the issues for decision.
29. THE admits the statement in ¶ 29 of Giant's Motion, but denies its materiality to
the issues for decision.
-4-
23213665\V•2
30. THE admits the statement in ¶ 30 of Giant's Motion, but denies its materiality to
the issues for decision.
31. THE admits the statement in ¶ 31 of Giant's Motion, but denies its materiality to
the issues for decision.
32. THE admits the statement in ¶ 32 of Giant's Motion, but denies its materiality to
the issues for decision.
33. THE admits the statement in ¶ 33 of Giant's Motion, but denies its materiality to
the issues for decision.
34. Admitted.
35. THE denies the statement in ¶ 34 of Giant's Motion because that paragraph does
not provide a full description of the effect of the First Amendment on the Supermarket
Restriction. Material to the issues for decision in this case (and consistent with the First Letter
Agreement (Pl. Exh. 3)), the First Amendment also explicitly states that "the Supermarket
Restriction shall not apply to Wal-Mart, its successors or assigns." Pl. Exh. 5, ¶ 5. "Wal-Mart"
in this provision means "Wal-Mart Stores, Inc.," not the existing Wal-Mart property. Pl. Exh. 5,
¶ G.
36. THE denies the statement in T 35 of Giant's Motion because that paragraph does
not provide a full description of the effect of the First Amendment on the Supermarket
Restriction. Material to the issues for decision in this case, the First Amendment also explicitly
states that "Notwithstanding anything to the contrary contained herein, the Supermarket
Restriction shall not apply to Wal-Mart, its successors or assigns." Pl. Exh. 5, ¶ 5. "Wal-Mart"
in this provision means "Wal-Mart Stores, Inc.," not the existing Wal-Mart property. Pl. Exh. 5,
G.
37. Admitted.
-5-
23213665\V-2
38. Admitted, with the explanatory proviso that, under ¶ G of the First Amendment,
"Wal-Mart" is defined as "Wal-Mart Stores, Inc." This definition distinguishes "Wal-Mart," the
corporate entity, from "certain real property that comprises a portion of the Shopping Center,"
defined in the First Amendment as the "Wal-Mart Property."
39. THE admits the statement in ¶ 39 of Giant's Motion, but denies its materiality to
the issues for decision.
40. Denied. Under $ 7.1 of the First Amendment, ERH and Giant agreed that "All
terms and conditions of the Lease not inconsistent with this Amendment shall remain in full
force and unchanged hereby." Pl. Exh. 5, 17. 1. This provision, thus, leaves intact the
integration clause in the Lease Agreement, which states as follows:
ARTICLE 39. ENTIRE AGREEMENT - INTERPRETATION
Section 39.01. 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 instruments shall have any force or effect. This
Lease shall not be modified in any way except by writing executed by both
parties. The laws of the state in which the Shopping Center is located shall
govern the validity, interpretation, performance and enforcement of this Lease.
Pl. Exh. 1, Art. 39.
41. THE admits that it purchased the Shopping Center from Eastern Retail after the
execution of the First Amendment, and that THE assumed Eastern Retail's rights and
responsibilities under the Lease Agreement (as modified by the First Amendment). THE denies
it assumed any purported "rights or responsibilities" in the letter agreements because those letter
agreements, by their very terms, contemplated only changes in the Lease that were to be effected
by the First Amendment. By operation of the integration clause, unaffected by the First
Amendment, the letter agreements are merely parol evidence and thus immaterial and
inadmissible as to an interpretation of the plain language of the Lease as amended by the First
Amendment.
-6-
23213665\V-2
D. The Proposed Sam's Club.
42. Denied. "Sam's Club" is a fictitious name. Giant's Motion, ¶ 43.
43. THE admits the statement in ¶ 43 of Giant's Motion, but denies its materiality to
the issues for decision.
44. THE admits the statement in T 44 of Giant's Motion, but denies its materiality to
the issues for decision.
45. THE admits the statement in ¶ 45 of Giant's Motion, but denies its materiality to
the issues for decision.
46. THE admits the statement in ¶ 46 of Giant's Motion, but denies its materiality to
the issues for decision.
47. Denied. Giant has adduced no evidence whatsoever to support the statement in ¶
47 of its Motion, relying instead (and improperly) on its own allegation in its Complaint.
Furthermore, even if this statement were true, it is immaterial to the issues for decision before the
court as to the interpretation of the plain language of the Lease as amended by the First
Amendment.
48. Denied. Giant has adduced no evidence whatsoever to support the statement in ¶
48 of its Motion, relying instead (and improperly) on its own allegation in its Complaint.
Furthermore, even if this statement were true, it is immaterial to the issues for decision before the
court as to the interpretation of the plain language of the Lease as amended by the First
Amendment.
III. Grounds for Summary Judgment
49. Paragraph 49 of Giant's Motion makes no statement of material fact to which a
response is required.
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23213665\V-2
50. THE denies Paragraph 53 of Giant's Motion as being a conclusion of law which
makes no statement of material fact to which a response is required. Subject to this denial, THE
states that Giant has failed to demonstrate its entitlement to summary judgment under the
applicable principles of Pennsylvania law.
51. THE denies the statement in ¶ 51 to the extent that it is intended to mean that all
"facts" stated in Giant's motion are material and undisputed. Subject to that denial, THE admits
that the material facts, stated in THF's Motion for Summary Judgment and Memorandum in
Support, are indeed undisputed.
52. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
53. THE denies Paragraph 53 of Giant's Motion as being a conclusion of law which
makes no statement of material fact to which a response is required. Subject to this denial, THE
states that Giant has failed to demonstrate its entitlement to its requested relief as a matter of law
under the applicable principles of Pennsylvania law.
54. Denied. THE is entitled to lease any premises within the Shopping Center to
Wal-Mart Stores, Inc. Under the clear and unambiguous terms of the First Amendment, Wal-
Mart Stores, Inc., its successors or assigns, are free to operate a retail operation including grocery
sales.
55. Denied, for the reasons stated in IT 41 and 54 above.
56. Denied. The Lease contains an integration clause (see 140 hereinabove) which
has remained unaffected by the First Amendment. Only the Lease and the First Amendment are
relevant in this case. Moreover, even if the First Letter Agreement were relevant, it, too, clearly
states that the Supermarket Restriction shall not apply to Wal-Mart Stores, Inc., its successors or
assigns. Pl. Exh. 3, ¶ A.4.
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23213665\°-2
57. THE admits that it hopes to lease premises within the Shopping Center that will
eventually be operated under the "Sam's Club" name.
58. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
59. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
60. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
61. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support. In addition, Giant has not shown (and cannot show)
that THE intends to lease premises to any entity other than Wal-Mart Stores, Inc.
62. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
63. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
64. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support. Specifically, Giant's claim that "The exception to the
Supermarket Restriction for Wal-Mart applies only to the property on which the Supercenter is
located" is directly refuted by the clear and unambiguous language of the First Amendment. The
"Wal-Mart Property" was a defined term in the First Amendment; but when the parties described
the scope of the carve-out, they did not limit the carve-out to the Wal-Mart Property or any other
property-based consideration. Instead, they plainly stated that "the Supermarket Restriction shall
not apply to Wal-Mart [defined in the First Amendment to mean Wal-Mart Stores, Inc.], its
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23213665\V-2
successors or assigns." Thus, ¶ 64 of Giant's Motion directly contradicts the plain language of
the First Amendment.
65. Denied, for the reasons stated in ¶ 64 above.
66. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
67. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
68. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
69. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support. Furthermore, Giant's statement in ¶ 69 directly
contradicts the plain language of ¶ 5 of the First Amendment.
70. Denied. The Supermarket Restriction was only reinstated to the extent specified
by the parties to the First Amendment. That extent did not include Wal-Mart Stores, Inc., its
successors or assigns. Furthermore, under the principle quoted by Giant from Capek v. Devito,
767 A.2d, 1047, 1050 (Pa. 2001), this Court cannot find in favor of Giant without nullifying both
¶¶ G and 5 of the First Amendment. Thus, the case cited by Giant precludes Giant's requested
relief.
71. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
72. Denied. THE has not even signed a lease for the operation of a supermarket in the
Shopping Center, much less permitted the operation of one that would violate the Supermarket
Restriction.
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23213665\V-2
73. Denied. Paragraph 73 is immaterial to the issues for consideration, but it is also
factually inaccurate in that Wal-Mart Stores, Inc., has ceased pursuing the conditional use permit
until the resolution of this litigation.
74. Denied. Giant has cited no evidence to support the claim asserted.
75. Denied. Giant has cited no evidence to support the claim asserted.
76. Denied. Giant has no entitlement to a remedy at law.
77. Denied, for the reasons stated herein and in THF's Motion for Summary
Judgment and Memorandum in Support.
FURTHER STATING: THE hereby incorporates herein its own Motion for Summary
Judgment and its Memorandum in Support of its Motion for Summary Judgment.
WHEREFORE, having fully answered Giant's Motion and having shown through the
evidence in this case that Giant is not entitled under any theory to its requested injunction, THE
hereby requests this Court enter judgment in THF's favor and against Giant, and for such other
and further relief as the Court deems just.
-11-
23213665\V-2
Respectfully submitted,
SONNENSCHEIN, NATH & ROSENTHAL LLP
By: I Ij Y- '2L
Bradley A. inters f
Michael M. Godsy
One Metropolitan Square, Suite 3000
St. Louis, Missouri 63102
(314) 241-1800
(314) 259-5959 (facsimile)
and
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett
Attorney ID # 41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254
(717) 299-3160 (facsimile)
Attorneys for Defendant THE Silver Spring
Development, L.P.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing document
was sent via Federal Express overnight delivery to:
Helen L. Gemmill, Esq.
McNees Wallace & Nurick LLC
100 Pine Street
P. O. box 1166
Harrisburg, PA 17108
on this 4th day of January, 2007.
-12-
232I3665\V-2
nim
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC,
Plaintiff
CIVIL ACTION - EQUITY
NO. 06-3688
V. :
THF SILVER SPRING DEVELOPMENT,
L.P.
Defendant
PLAINTIFF'S RESPONSE TO
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pursuant to Pa. R. Civ. P. 1035.23 Plaintiff Giant Food Stores, LLC ("Giant") submits the
following response to the Motion for Summary Judgment of Defendant THF Silver Spring
Development, L.P. ("THF").
THF is not entitled to summary judgment in its favor in this matter because: (1) the
unambiguous terms of the relevant contracts do not permit THF to lease premises within the
Silver Spring Common Shopping Center (the "Shopping Center") to Wal-Mart Stores, Inc.
("Wal-Mart") for the purpose of selling groceries, nor do the contracts permit the assignment of
such a lease by Wal-Mart to another entity that will sell groceries; and, (2) the restrictive
covenant in the relevant contracts is neither fraudulent nor inequitable to THF, as the restrictive
covenant is valid as a matter of law and THF had actual notice of the restrictive covenant, and
the contracts underlying it, when it purchased the Shopping Center.
Additionally, THF's claim that it lacked actual notice of the restrictive covenant and the
underlying contracts raises an issue of fact that precludes summary judgment in its favor. Giant
I
asserts that THE had actual notice, as evidenced by THF's production of the relevant documents
from its own files in discovery.
Giant incorporates herein by reference its Motion for Summary Judgment (filed
December 5, 2006) and Giant's Brief in Opposition to THF's Motion for Summary Judgment (to
be filed in accordance with the timelines set forth in the Cumberland County Local Rules). For
the reasons set forth in this Response and the incorporated documents, THE is not entitled to
judgment as a matter of law in its favor in this matter.
McNEES WALLACE & NURICK LLC
By L . ?-?.?,.?.-rli
Helen L. Gemmill
I.D. No. 60661
Kandice J. Giurintano
I.D. No. 86345
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff Giant Food Stores, LLC
Dated: January 4, 2007
2
f
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served by first-class mail,
postage prepaid, upon the following, on the date indicated below:
Mark E. Lovett
Hartman, Underhill & Brubaker LLP
221 East Chestnut Street
Lancaster, PA 17602
Bradley A. Winters
Michael M. Godsy
Sonnenschein, Nath & Rosenthal LLP
One Metropolitan Square
Suite 3000
St. Louis, MO 63102-2741
AL r"_?e
Helen L. Gemmill
Dated: January 4, 2007
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
GIANT FOOD STORES, LLC, CIVIL ACTION - EQUITY
Plaintiff
NO. 06-3688
V.
THE SILVER SPRING DEVELOPMENT,
L.P.
Defendant
1. State matter to be argued: Motion for Summary Judgment of Plaintiff Giant Food Stores,
LLC
2. Identify counsel who will argue the case:
(a) For Plaintiff: Helen L. Gemmill
McNees Wallace & Nurick LLC
100 Pine Street
Harrisburg, PA 17101
(b) For Defendants: Bradley A. Winters
Sonneschein, Nath & Rosenthal LLP
One Metropolitan Square, Suite 3000
St. Louis, MO 63102
3. I will notify all parties in writing within two days that this case has been listed for argument.
4. Argument Court Date: January 24, 2007.
McNEES WALLACE & NURICK LLC
By /
__ ? e L rr-t?
Helen L. Gemmill
Dated: January 4, 2007 Attorneys for Plaintiff
Ilk
h
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served by first-class mail,
postage prepaid, upon the following, on the date indicated below:
Mark E. Lovett
Hartman, Underhill & Brubaker LLP
221 East Chestnut Street
Lancaster, PA 17602
Bradley A. Winters
Michael M. Godsy
Sonnenschein, Nath & Rosenthal LLP
One Metropolitan Square
Suite 3000
St. Louis, MO 63102-2741
//"?L C .,-t?
Helen L. Gemmill
Dated: January 4, 2007
-
-
C CO
GIANT FOOD STORES, LLC,
Plaintiff
V.
THE SILVER SPRING
DEVELOPMENT, L.P.
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 - 3688 CIVIL ACTION - EQUITY
IN RE: CROSS MOTIONS OF PLAINTIFF & DEFENDANT
FOR SUMMARY JUDGMENT
BEFORE OLER, JR., GUIDO, JJ.
ORDER OF COURT
AND NOW, this 3RD day of AUGUST, 2007, for the reasons set forth in the
attached opinion Defendant is enjoined from violating the Super Market Restriction
contained in Section 14.01 of the Lease Agreement dated, May 29, 1992, as amended.
Provided, however, that neither the Super Market Restriction nor this order shall apply to
Wal-Mart, its successors or assigns in connection with the premises currently occupied
by Wal-Mart.
Helen L. Gemmill, Esquire n
l! ! DES
Bradley A. Winters, Esquire rn ` LCCL
Mark E. Lovett, Esquire v/ 3 /to 7
Edward E. Guido, J.
James A. Diamond, Esquire t--pi
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I C :I Wd E- SAV tOOZ
Ate? QNvi-i i 0 3Hl . O
GIANT FOOD STORES, LLC,
Plaintiff
V.
THE SILVER SPRING
DEVELOPMENT, L.P.
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2006 - 3688 CIVIL ACTION - EQUITY
IN RE: CROSS MOTIONS OF PLAINTIFF & DEFENDANT
FOR SUMMARY JUDGMENT
BEFORE OLER, JR., GUIDO, JJ.
OPINION AND ORDER OF COURT
Plaintiff Giant Food Stores, LLC (hereinafter Giant) has filed this action in equity
seeking injunctive relief against the defendant. Specifically, Giant seeks to permanently
enjoin the defendant from leasing retail space to Sam's Club or any other store that will
sell groceries for off-premises consumption.
The parties have filed cross motions for summary judgment. The material facts
are not in dispute. The resolution of this controversy is dependent upon the interpretation
of specific language in a contract governing the relationship between the parties.
FACTS
Defendant's predecessor in interest developed the Silver Spring Commons
Shopping Center (hereinafter Shopping Center). In May 1992 the parties' predecessors
in interest entered into a 20 year lease agreement for certain retail space in the Shopping
Center. Plaintiff's predecessor in interest operated a Giant grocery store from that space.
NO. 2006 - 3688 CIVIL ACTION - EQUITY
The lease agreement contained a restrictive covenant which provides in relevant part as
follows:
Section 14.01.
... Landlord covenants and agrees that, for the term of this Lease and any
extension thereof, no store(s) and/or building (s), or any part of same, now or
hereafter acquired and/or constructed by Landlord within the Shopping Center or
upon any property within a three (3) mile distance therefrom in which the
Landlord has an ownership interest shall be used for the sale (at retail or
wholesale), for off-premises consumption of groceries, ... If at any time during
the term hereof the Demised Premises is not being used as a supermarket or for
the sale of food for a consecutive period in excess of six (6) months ... the
restrictions contained herein shall be null and void.'
In April of 2001 Giant vacated the leased space and moved its grocery store to an
unrelated retail space across the highway from the Shopping Center. However, before its
move, Giant began negotiating with defendant's predecessor to sublet a portion of its
space in the Shopping Center and to maintain the effectiveness of the restrictive covenant
set forth above. At the same time the defendant's predecessor in interest was negotiating
with Wal-Mart to expand its presence in the Shopping Center from a Wal-Mart retail
store to a Wal-Mart Super Center, which would include the sale of groceries. By June of
that year the parties confirmed their intention to proceed in good faith to reach a legally
binding agreement which would incorporate the following terms:
In consideration of the Tenant's funding of the improvements to be
constructed by Marshalls, Landlord shall waive the nullification of the use
restrictions by virtue of Tenant's discontinuance of supermarket operation,
and shall agree that the use restrictions contained in Section 14.01 (the
"Supermarket Restriction") shall be reinstated and thereafter would expire
on the expiration date of the original term of the Lease. This waiver by
Landlord will take effect when the Sublease is approved by Landlord and
executed by Tenant as sub landlord and Marshalls as subtenant.
Notwithstanding the foregoing, the Supermarket Restriction (a) shall not
apply to Wal-Mart Stores, Inc. and its successors and assigns.
' Plaintiff's Exhibit 1, pp. 19-20.
2
' NO. 2006 - 3688 CIVIL ACTION - EQUITY
Tenant will approve in writing (a) Wal-Mart's operation of a supermarket,
(b) the expansion of the Wal-Mart Store into a portion of the shopping
center owned by Landlord, approximately as shown on the Sketch Plan
attached hereto as Schedule B. The result will be that the Wal-Mart store
will be expanded to contain approximately 200,000 square feet of space,
some of which, as determined by Wal-Mart, will be devoted to
supermarket type uses; and (c) the expansion of that portion of the overall
shopping center now owned by Wal-Mart... 2
By September of 2001 the parties entered into a legally binding agreement with
regard to the sublease and the Wal-Mart expansion. Defendant' predecessor agreed to
execute Giant's sublease for the purpose of consenting thereto. With regard to the Wal-
Mart expansion, the agreement provided, inter alia, as follows:
Giant and Marmaxx hereby confirm and reconfirm that they have no
objections to, and hereby consent to and approve (a) the conveyance of
approximately 4.56 acres of land and improvements thereon to Wal-Mart,
all as approximately shown in the shaded area on Exhibit A attached
hereto, ... (b) the construction by Wal-Mart of an expansion to the
existing Wal-Mart store, the expansion to take place approximately
within the area crosshatched within the shaded area and (c) the
operation by Wal-Mart of its store, as so expanded, as a : "Wal-Mart
Super center";
(emphasis added) .3
In July of 2003 Giant subleased the remaining portion of its space in the shopping
center. In September of that year, the parties finally executed an Amendment to the
original lease agreement. The document began by reciting the following background:
A. Landlord is the fee owner of certain real property that comprises a portion of
the Silver Spring Commons Center, located in Silver Spring Township,
Cumberland County, Pennsylvania, as depicted on the Site Plan attached
hereto as Exhibit "A" (the Shopping Center").
B. Landlord's predecessor in interest and Tenant's predecessor in interest entered
into a Lease Agreement dated May 29,m 1992 (the "Lease"), pursuant to
which Tenant leases certain premises located in the Shopping Center (the
"Demised Premises") as described in the Lease...
2 Plaintiff s Exhibit 3, p. 2, Para. (A) 4 and (B) 2
3 Plaintiffs Exhibit 4, p. 1.
3
NO. 2006 - 3688 CIVIL ACTION - EQUITY
C. Tenant elected to discontinue the operation of the Demised Premises as a
supermarket pursuant to its rights set forth in Section 6.02 of the Lease, and
ceased operations in the Demised Premises on or about April 24, 2001.
D. Section 14.01 of the Lease sets forth a use restriction binding the Shopping
Center and certain other property within a three (3) mile distance therefrom
(the "Supermarket Restriction"), which shall become null and void if the
Demised Premises are not being used as a supermarket or for the sale of food
for a consecutive period in excess of six (6) months, excluding any Excused
Period.
E. Tenant, as sublessor, and Marmaxx Operating Corp. ("Marmaxx"), as
sublessee, entered into a Sublease Agreement dated as of September 20, 2001
(the "Marmaxx Sublease"), pursuant to which Marmaxx occupies a portion of
the Demised Premises, which portion is marked "Marmaxx Space" on Exhibit
"A" hereto.
F. Tenant, as sublessor, and A.C. Moore, Inc. ("A.C. Moore"), as sublessee,
entered into a Sublease Agreement dated as of July 1, 2003 (the "A.C. Moore
Sublease") pursuant to which A.C. Moore occupies the remainder of the
Demised Premises, which remainder is marked "A.C. Moore Space" on
Exhibit "A" hereto.
G. Wal-Mart Stores, Inc. ("Wal-Mart") is the fee owner of certain real
property that comprises a portion of the Shopping Center (the "Wal-
Mart Property") as depicted on Exhibit "A" hereto.
H. Landlord and Tenant desire to amend the Lease in accordance with the
provisions set forth herein.
(emphasis added).4 The relevant terms of the amendment provide as follows:
3. Subleases. Landlord and Tenant agree that from and after the Expiration
Date, Tenant shall have no further rights, duties or obligations under the
Marmaxx Sublease or the A.C. Moore Sublease, except for any rights, duties
or obligations accruing before the Expiration Date.
4. Supermarket Restriction. Landlord and Tenant agree that, effective upon the
execution of the Marmaxx Sublease on or about September 20, 2001, Section
14.01 of the Lease shall have been amended to provide that, whether or not
the Demised Premises is operated as a supermarket or for the sale of food, the
Supermarket Restriction shall remain in full force and effect throughout the
original term of the Lease...
4 Plaintiff's Exhibit 5, pp. 1-2.
4
NO. 2006 - 3688 CIVIL ACTION - EQUITY
5. Wal-Mart. Notwithstanding anything to the contrary contained herein or
in the Lease, the Supermarket Restriction shall not apply to Wal-Mart,
its successors or assigns.
(emphasis added).5
The defendant purchased the Shopping Center in January 2005. In April of 2006
it filed an application for a conditional use to construct a Sam's Club retail facility in a
portion of the Shopping Center not occupied by Wal-Mart. Sam's Club is owned by
Sam's Club East, Inc. Its retail facilities sell groceries. Since Sam's Club East, Inc. is a
subsidiary of Wal-Mart, defendant intends to lease the space to Wal-Mart which will in
turn "assign" it to Sam's Club East.
DISCUSSION
In order to grant a motion for summary judgment we must be satisfied that there
are no genuine issues of material fact and that the moving party is entitled to judgment as
a matter of law. Sphere Drake Ins. Co. v. Philadelphia Gas Works, 566 Pa. 541, 782
A.W. 510 (Pa. 2001). In the instant case the parties agree that there are no genuine issues
of material fact. Furthermore, each party contends that it is entitled to judgment in its
favor as a matter of law.
Both parties agree that the clear language of the agreement exempts "Wal-Mart,
its successors or assigns" from the Supermarket Restriction. Plaintiff contends that the
contract language must be interpreted to apply the exemption only to the property upon
which the Wal-Mart Super center is located. Defendant argues that the contract language
should be interpreted broadly to include any premises within the Shopping Center.
5 Plaintiff's Exhibit 5, p. 2.
5
. ' • NO. 2006 - 3688 CIVIL ACTION - EQUITY
The Pennsylvania Supreme Court has enunciated rules for contract interpretation
that we must follow in reaching our decision. In Capek v. Devito, 564 Pa. 267, 767 A.2d
1047 (Pa. 2002) the Court articulated the general rule as follows.
"[W]hen a written contract is clear and unequivocal, its meaning must be
determined by its contents alone." In construing a contract, we must
determine the intent of the parties and give effect to all of the provisions
therein. "An interpretation will not be given to one part of the contract
which will annul another part of it."
(citations omitted) 767 A.2d at 1050. Furthermore, "even where there is no specific
reference to a prior agreement or agreements, several contracts shall be interpreted as a
whole and together." Shehadi v. Northeastern Nat. Bank of Pennsylvania, 474 Pa. 232,
236, 378 A.2d 304, 306 (Pa. 1977).
Applying those principles to the case at bar we must agree with plaintiff s
interpretation. Since both parties agree that the contract is clear and unequivocal, we
must determine the parties' intent from the contract documents. We are satisfied that the
contracting parties intended only the portion of the Shopping Center occupied by Wal-
Mart, and referred to specifically in the prior agreements, to be exempted from the
Supermarket Restriction. Otherwise there would be no reason to identify the particular
parcel in the various contract documents, including the lease amendment. Viewed in that
context, the term "successors and assigns" refers to only subsequent owners or lessors of
the Wal-Mart parcel identified in the documents. This is the only logical interpretation of
that language. To interpret it as the defendant suggests would effectively nullify the
Supermarket Restriction. The landlord could lease any portion of the Shopping Center
6
NO. 2006 - 3688 CIVIL ACTION - EQUITY
to an entity selling groceries by simply using Wal-Mart as a straw party. We are certain
that this was not the intent of the contracting parties.6
Defendant next contends that even if it was the intent of the parties' predecessors
in interest that Wal-Mart's exemption from the Supermarket Restriction was limited to
the identified parcel, the limitation is not binding upon it as a good faith purchaser for
value. It points out that the recorded memorandum of lease makes no reference to a
particular parcel of property. It argues that as an "hereditament" of the property the
Super Market restriction is subject to 21 P. S. §351 which provides in relevant part:
Every such deed, conveyance, contract, or other instrument of wrintg
which shall not be acknowledged or proved and recorded, as aforesaid,
shall be adjudged fraudulent and void as to any subsequent bona fide
purchaser ... without actual or constructive notice ...
21 P.S. § 351.
Defendant's argument fails because we are satisfied that it had constructive, if not
actual, notice that the exemption was limited to the Wal-Mart parcel. It concedes that it
reviewed all of the tenants' leases as part of its due diligent before purchasing the
Shopping Center. These leases included not only the Giant Lease and Amendments, but
also the Marmaxx and A.C. Moore subleases. Furthermore, Pennsylvania law has long
recognized that:
... it is the duty of a purchaser of real property to make inquiry respecting
the rights of the party in possession and failing to do so they are affected
with constructive notice of such facts as would have come to his
knowledge in the proper discharge of that duty.
Malamed v. Sedelsky, 367 Pa. 353, 357, 80A.2d 853, 855 (Pa. 1951).
6 This rationale applies even if we view only the "First Amendment to Lease Agreement" and the lease
itself as the contract documents. However, we are further satisfied that the contract includes not only those
documents, but also the other documents quoted from above and/or referred to in the "Background" section
of the "First Amendment to Lease Agreement."
7
NO. 2006 - 3688 CIVIL ACTION - EQUITY
We must now determine whether plaintiff is entitled to a permanent injunction as
a matter of law. The burden is upon plaintiff to establish its clear right to relief. Buffalo
Twp. V. Jones, 571 Pa. 637, 813 A.2d 659, (Pa. 2002). However, it "need not establish
either irreparable harm or immediate relief' only "a legal wrong from which there is no
adequate redress at law." Id. at 663. We have already determined that the Supermarket
Restriction applies to the entire Shopping Center except for the Wal-mart parcel. We
have also determined that the restriction is binding upon the defendant. It is undisputed
that defendant intends to lease another portion of the Shopping Center to Wal-Mart for
the operation of a Sam's Club, which would clearly violate the restriction. Since the loss
of its customers is impossible to quantify, we find that the defendant has no adequate
remedy at law. Therefore, we well grant the injunctive relief.
ORDER OF COURT
AND NOW, this 3RD day of AUGUST, 2007, for the reasons set forth in the
attached opinion Defendant is enjoined from violating the Super Market Restriction
contained in Section 14.01 of the Lease Agreement dated, May 29, 1992, as amended.
Provided, however, that neither the Super Market Restriction nor this order shall apply to
Wal-Mart, its successors or assigns in connection with the premises currently occupied
by Wal-Mart.
Helen L. Gemmill, Esquire
Bradley A. Winters, Esquire
Mark E. Lovett, Esquire
James A. Diamond, Esquire
By the Court,
/s/ Edward E. Guido
Edward E. Guido, J.
' We note that defendant has not even contended that plaintiff has an adequate remedy at law.
8
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett, Esquire
Attorney ID #41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254 Fax: (717) 299-3160
GIANT FOOD STORES, LLC,
Plaintiff
V.
THE SILVER SPRING
DEVELOPMENT, L.P.,
Defendant
Na 06-0368ll
Attorneys for Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
: No. 06-3688 Civil Term
NOTICE OF APPEAL
Notice is hereby given that Defendant THE Silver Spring Development, L.P., hereby
appeals to the Superior Court of Pennsylvania from the final Order entered in this matter on
August 3, 2007, entering judgment in favor of the Plaintiff. This Order has been entered in
the docket as evidenced.by the attached copy of the docket entries.
Date: Z3?1
HARTMAN UNDERHILL & BRUBAKER LLP
By:
Mark E. Lovett, i
Attorney I.D. No. 41071
Attorneys for Petitioner
00487208.1
PYS51 Cumberland County Prothonotary's Office Page 1
1w I Civil Case Print
2006-03688 GIANT FOOD STORES LLC (vs) SILVER SPRING DEVELOPMENT L P
Reference No..: Filed........: 6/28/2006
Case Ty e.....: COMPLAINT
d
t T:ime......... : 11:23
gmen
Ju
......: .00 Execution Date 0/00/0000
Judge Assigned: GUIDO EDWARD E Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
GIANT FOOD STORES LLC PLAINTIFF GIURINTANO KANDICE J
1149 HARRISBURG PIKE
P 0 BOX 249
CARLISLE PA 17013
SILVER SPRING DEVELOPMENT LP DEFENDANT LOVETT MARK E
THE
1149 HARRISBURG PIKE
P 0 BOX 249
CARLISLE PA 17013 0249
* Date Entries
FIRST ENTRY - - - - - - - - -- - - - - -
6/28/2006 COMPLAINT FOR INJUNCTIVE RELIEF
-------------------------------------------------------------------
6/28/2006 PLAINTIFF'S MOTION FOR PRELIMINAY INJUNCTION
-------------------------------------------------------------------
6/30/2006 ORDER OF COURT - 06-30-06 - IN RE: HEARING ON PLFF'S REQUEST FOR
PRELIMINARY INJUNCTION ON 07-07-06 AT 2:30 PM - BY EDWARD E GUIDO
J - COIES MAILED 07-03-06
-------------------------------------------------------------------
7/07/2006 UNCONTESTED MOTION FOR ADMISSION OF BRADLEY A WINTERS AND MICHAEL
M GODSY PRO HAC VICE - MARK E LOVETT ESQ FOR DEFT
-------------------------------------------------------------------
7/07/2006 PRAECIPE TO ENTER APPEARANCE - BY MARK E LOVETT ATTY FOR DEFT
-------------------------------------------------------------------
7/07/2006 ORDER - 07-07-06 - IN RE: ORDERED THAT MOTION IS GRANTED - BRADLEY
A WINTERS AND MICHAEL M GODSY ARE ADMITTED PRO HAC VICE FOR
DEFT-THF SILVER SPRING DEV LP IN THE LITIGATION - BY EDWARD E
GUIDO J -COPY GIVEN PERSONALLY TO DEFT'S ATTY & COPY MAILED
07-07-06
-------------------------------------------------------------------
7/11/2006 ORDER OF COURT - 07-07-06 - IN RE: BY AGREEMENT OF THE PARTIES
THEREIS NO NEED FOR A HEARING ON THE REQUEST FOR A PRELIMINARY
INJUNCTION - DEFT REALIZES THAT IT WILL PRECEED IN ITS EFFORT TO
GET THE NECESSARY APPROVALS AT ITS OWN RISK - FURTHER THE PARTIES
HAVE AGREED THAT WE WILL HAVE A HEARING ON 10-05-06 AT 1 PM - BY
EDWARD E GUIDO J - COPIES MAILED 07-11-06
-------------------------------------------------------------------
7/11/2006 ORDER OF COURT - 07-07-06 - IN RE: BY AGREEMENT OF PARTIES
WAL-MART INC AND ANY SUBSIDIARY THERETO WAS ERRONEOUSLY JOINED IN
TEH CAPTION OF THIS CASE AND IS HEREBY DISMISSED - BY EDWARD E
GUIDO J - COPIES MAILED 07-11-06
--------------------------------------------------------------------
7/18/2006 ORDER - 07-17-06 - IN RE: UPON CONSIDERATION OF THE REQUEST OF THE
SILVER SPRING DEV LP TO DIRECT THE STENOGRAPHER TO PRODUCE THE
TRASCRIPT OF THE PROCEEDINGS IN THIS MATTER THE STEOGRAPHER IS
HEREBY ORDERED TO PRODUCE THE TRANSCRIPT OF THE PROCEEDINGS HELD
07-07-06 AT 2:30 PM - BY EDWARD E GUIDO J - COPY MAILED 07-19-06
-------------------------------------------------------------------
7/24/2006 TRANSCRIPT OF PROCEEDINGS - 07-07-06 IN CR 3 BY EDWARD E GUIDO J
-------------------------------------------------------------------
9/13/2006 ORDER OF COURT -09-11-06 - IN RE: HEARING 11-17-06 AT 8:30 AM IN
CR 3 - BY EDWARD E GUIDO J - COPIES MAILED 09-13-06
-------------------------------------------------------------------
10/18/2006 DEFT'S ANSWER AND AFFIRMATIVE DEFENSES - BY MICHAEL M GODSY ATTY
FOR PLFFS
-------------------------------------------------------------------
11/06/2006 STIPULATION - BY MARK E LOVETT ATTY FOR DEFT & HELEN L GEMMILL
ATTY FOR PLFF
PYS511 Cumberland County Prothonotary's Office Page 2
Civil Case Print
a. I 2006-03688 GIANT FOOD STORES LLC (vs) SILVER SPRING DEVELOPMENT L P
Reference No... Filed......... 6/28/2006
Case Type...... COMPLAINT Time..... ..: 11.23
Judgment...... 00 Execution Date 0/00/0000
Judge Assigned: GUIDO EDWARD E Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
-------------------------------------------------------------------
11/06/2006 DEFT'S AMENDED ANSWER WITH NEW MATTER - BY MARK E LOVETT ATTY FOR
DEFT
-------------------------------------------------------------------
11/16/2006 REPLY TO NEW MATTER - BY KANDICE J GIURINTANO ATTY FOR PLFF
-------------------------------------------------------------------
11/17/2006 ORDER OF COURT - 11-17-06 - IN RE: PLFF'S EXHIBITS 1 THROUGH 13
ARE ADMITTED WITHOUT OBJECTION AS TO AUTHENTICITY BUT WITH THE
RESERVATION AS TO THE COURT CONSIDERING ANY PAROLE EVIDENCE -
DEFT'S EXHIBITS 1 THROUGH 7 ARE ADMITTED BY AGREEMENT OF THE
PARTIES AND WITHOUT OBJECTIONS SAVE FOR THE RELEVANCY AND PAROLE
EVIDENCE ISSUE - BY EDWARD E GUIDO J - COPIES MAILED 11-17-06
-------------------------------------------------------------------
11/17/2006 ORDER OF COURT - 11-17-06 - IN RE: BY AGREEMENT OF THE PARTIES
THEY WILL BE FILING CROSS MOTIONS FOR SUMMARY JUDGMENT AND LISTING
THE MATTER FOR ARGUMENT COURT - PENDING T?1E TILING AND ARGUING OF
THOS MOTIONS THESE PROCEEEDINGS ARE CONTINUED GENERALLY - BY
EDWARD E GUIDO J - COPIES MAILED 11-17-06
-------------------------------------------------------------------
12/05/2006 MOTION FOR SUMMARY JUDGMENT OF PLFF GIANT FOOD STORES LLC - BY
KANDICE J GIURINTANO ATTY FOR PLFF
-------------------------------------------------------------------
12/05/2006 DEFT'S MOTION FOR SUMMARY JUDGMENT - BY MICHAEL M GODSY ATTY
-------------------------------------------------------------------
12/20/2006 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT'S MOTION FOR SUMMARY
JUDGMENT - BY MARK E LOVETT ATTY FOR DEFT
-------------------------------------------------------------------
1/04/2007 DEFENDANT'S RESPONSE TO PLFF'S MOTION FOR SUMMARY JUDGMENT - BY
MICHAEL M GODSY ATTY FOR PLFF & MARK E LOVETT ATTY FOR DEFT
-------------------------------------------------------------------
1/04/2007 PLAINTIFF'S RESPONSE TO DEFT'S MOTION FOR SUMMARY JUDGMENT - BY
HELEN L GIMMILL ATTY FOR PLFF
-------------------------------------------------------------------
1/04/2007 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR SUMMARY
JUDGMENT OF PLFF GIANT FOOD STORES LLC - BY HELEN L GEMMILL ATTY
FOR PLFF
-------------------------------------------------------------------
8/03/2007 ORDER OF COURT - DATED 08-03-07 - IN RE: CROSS MOTIONS OF PLFF
AND DEFT FOR SUMMARY JUDGMENT BEFORE OLER JR GUIDO JJ - DEFT IS
ENJOINED FROM VIOLATING THE SUPERMARKET RESTRICTTON CONTAINED IN
SECTION 14.01 OF THE LEASE AGREEMENT DATED 05-29-92 AS AMENDED-
PROVIDED HOWEVER THAT NEITHER THE SUPER MARKET RESTRICTION NOR
THIS ORDER SHALL APPLY TO WAL-MART ITS SUCCESSORS OR ASSIGNS IN
CONNECTION WITH THE PREMISES CURRENTLY OCCUPIED BY WAL-MART - BY
EDGAR B BAYLEY J - COPIES MAILED 08-03-07
--------------------------------------------------------------.-----
8/03/2007 OPINION AND ORDER OF COURT - DATED 08-03-07 - IN RE: CROSS MOTIONS
OF PLFF & DEFT FOR SUMMARY JUDGMENT BEFORE OLER JR GUIDO JJ - BY
EDWARD E GUIDO J
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information
* Fees & Debits Beg Bal PmtsAdj End Bal
******************************** ******** ****** *******************************
COMPLAINT 35.00 35.00 .00
TAX ON CMPLT .50 .50 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION 5.00 5.00 .00
JCP FEE 10.00 10.00 .00
------------------------ ------------
55.50 55.50 .00
********************************************************************************
* End of Case Information
********************************************************************************
No. 06-03688
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am this day serving the foregoing document upon the
persons and in the manner indicated below.
Service by first class mail and addressed as follows:
Helen L. Gemmill, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Date: vs -?
1 ARTMAN UNDERHILL & BRUBAKER LLP
By:
Mark E. Lovett, uir
Attorney I.D. No. 41071
Attorneys for Petitioner
00487208.1
V
0
r-a
tp
00
Y
? t7 r
? `? ° r
COMMONWEALTH OF PENNSYLVANIA
awl-
Superior Court of Pennsylvania
Karen Reid Bramblett, Esq. Middle District 100 Pine Street. Suite 400
Prothonotary Harrisbure. PA 17101
James D. McCullough, Esq. August 28, 2007 717-772-1294
Deputy Prothonotary www.superior.court.state.pa.us
Mr. Curtis R. Long
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Re: 1476 MDA 2007
Giant Food Stores LLC
V.
Silver Spring Development, L.P., Appellant
Dear Mr. Long:
Enclosed please find a copy of the docket for the above appeal that was recently filed in the
Superior Court. Kindly review the information on this docket and notify this office in writing if
you believe any corrections are required.
Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517,
for completion and filing. Please note that Superior Court Dockets are available on the Internet
at the Web site address printed at the top of this page. Thank you.
Very truly yours,
Karen Reid Bramblett, Esq.
Prothonotary
KRC
11:06 AA
Appeal Docket Sheet
Docket Number:
Page 1 of 2
August 28, 2007
1476 MDA 2007
Giant Food Stores LLC
V.
Silver Spring Development, L.P., Appellant
Initiating Document: Notice of Appeal
Case Status: Active
Case Processing Status: August 27, 2007
Journal Number:
Case Category: Civil
Awaiting Original Record
CaseType: Equity
Consolidated Docket Nos.:
Related Docket Nos.:
SCHEDULED EVENT
Next Event Type: Receive Docketing Statement Next Event Due Date: September 11, 2007
Next Event Type: Original Record Received Next Event Due Date: October 23, 2007
COUNSEL INFORMATION
Appellant THE Silver Spring Development, L.P.
Pro Se: Appoint Counsel Status:
IFP Status: No
Appellant Attorney Information;
Attorney: Lovett, Mark E.
Bar No.: 41071 Law Firm: Hartman Underhill & Brubaker, L.L.P.
Address: 221 E Chestnut Street
Lancaster, PA 17602-2782
Phone No.: (717)299-7254 Fax No.: (717)299-3160
Receive Mail: Yes
E-Mail Address:
Receive E-Mail: No
Appellee Giant Food Stores LLC
Pro Se: Appoint Counsel Status:
IFP Status: No
Appellee Attorney Information:
Attorney: Gemmill, Helen Louise
Bar No.: 60661 Law Firm: McNees, Wallace & Nurick, LLC
Address: 100 Pine St PO Box 1166
Harrisburg, PA 17108-1166
Phone No.: (717)237-5273 Fax No.: (717)237-5300
Receive Mail: Yes
E-Mail Address:
Receive E-Mail: No
Superior Court of Pennsylvania
812812007 3023
11:06 A.M.
Appeal Docket Sheet
Docket Number: U76 MDA 2007
Superior Court of Pennsylvania
Paae 2 of 2
August 28, 2007
FEE INFORMATION
Paid
Fee Date Fee Name Fee Amt Amount Receipt Number
8/24/07 Notice of Appeal 60.00 60.00 2007SPRMD000831
TRIAL COURT/AGENCY INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland
Date of order Appealed From: August 3, 2007
Date Documents Received: August 27, 2007
Order Type: Judgment Entered
Division: Civil
Judicial District: 9
Date Notice of Appeal Filed: August 24, 2007
OTN:
Judge: Bayley, Edgar B.
President Judge
Lower Court Docket No.: 2006-03688
ORIGINAL RECORD CONTENTS
Original Record Item Filed Date Content/Description
Date of Remand of Record:
BRIEFS
DOCKET ENTRIES
Filed Date Docket Entry/Document Name Party Type Filed By
August 27, 2007 Notice of Appeal Filed
Appellant THE Silver Spring Development, L.P.
August 28, 2007 Docketing Statement Exited (Civil)
Middle District Filing Office
8/28/2007 3023
r ?
7
CA) i?' ZZIC
ORIGINAL
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett, Esquire
Attorney ID #41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254 Fax: (717) 299-3160
Attorneys for Defendant
GIANT FOOD STORES, LLC,
Plaintiff
V.
THE SILVER SPRING
DEVELOPMENT, L.P.,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
: No. 06-3688 Civil Term
AMENDED CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am this day serving a copy of the Notice of Appeal filed
with the Prothonotary on August 24, 2007, upon the persons and in the manner indicated
below.
Service by first class mail and addressed as follows:
The Honorable Edward E. Guido
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
Helen L. Gemmill, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Date:zj PC, . ,.k Z°v -7
HARTMAN UNDER L & BRUBAKER LLP
By:
Mark E. Love ,
Attorney I.D. No. 41071
Attorneys for Petitioner
00488005.1
JM410190
(77
f
GIANT FOOD STORES, LLC,
Plaintiff
V.
THE SILVER SPRING DEVELOPMENT,
L.P.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 - 3688 CIVIL
ORDER OF COURT
AND NOW, this 4TH day of SEPTEMBER, 2007, Defendant's
counsel is directed to file a concise statement of matters
complained of on appeal within fourteen (14) days of today's date
in accordance with Rule of Appellate Procedure 1925(b).
By the Court,
/ark E. Lovett, Esquire
221 Chestnut Street
Lancaster, Pa. 17602-2782
Court Administrator J
:sld
Edward E. Guido, J.
LUZ
£
0 t
SONNENSCHEIN, NATH & ROSENTHAL LLP
Bradley A. Winters, pro hac vice
Michael M. Godsy, pro hac vice
One Metropolitan Squire, Suite 3000
St. Louis, Missouri 63103
(314) 241-1800
(314) 259-5959 (facsimile)
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett, Esquire
Attorney ID #41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254 Fax: (717) 299-3160
"6?#A L
Attorneys for Defendant
GIANT FOODS, LLC,
Plaintiff
V.
THE SILVER SPRING
DEVELOPMENT, LLP,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 06-3688 CIVIL TERM
DEFENDANT'S STATEMENT OF MATTERS ON APPEAL
COMES NOW Defendant THE Silver Spring Development, L.P., by and through
undersigned counsel, and pursuant to the Court's Order of September 4, 2007, hereby provides
the following statement of matters complained of on appeal in accordance with Rule of Appellate
Procedure 1925(b);
That the Court erred in considering documents executed between the execution of
the Lease Agreement and the First Amendment to Lease as being part of the First Amendment to
Lease, when the First Amendment neither refers to nor incorporates those documents and by date
supersedes those documents.
00489053.1
10
No. 06-3688 Civil Term
2. That the Court erred in interpreting the First Amendment to Lease by rendering an
interpretation that nullifies the defined term therein of "Wal-Mart".
3. That the Court erred in ruling that the "intent of the parties" differed from the
"clear and unequivocal" terms of the First Amendment to Lease.
4. That the Court erred in modifying and reforming the restrictive covenant -
effectively, by substituting the defined term "Wal-Mart Property" for the parties' clear use of
"Wal-Mart" - when the contractual language was unambiguous and neither party sought
reformation as a remedy.
Respectfully submitted,
HARTMAN UNDERHILL & BRUBAKER LLP
Dated: September 10, 2007 By:
Mark E. Lovett, Esquire
Attorney I.D. No. 41071
Attorneys for Defendant THE Silver Spring
Development, L.P.
00489053.1
40
No. 06-3688 Civil Term
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am this day serving the foregoing document upon the
persons and in the manner indicated below.
Service by first class mail and addressed as follows:
Helen L. Gemmill, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Dated: September 10, 2007
Mark E. Lovett, Esgile
Attorney I.D. No. 41071
Attorneys for Defendant THE Silver Spring
Development, L.P.
00489053.1
? v
.c.1 r C
?? r? t
ORIGINAL
No. 06-3688 Civil Term
SONNENSCHEIN, NATH & ROSENTHAL LLP
Bradley A. Winters, pro hac vice
Michael M. Godsy, pro hac vice
One Metropolitan Squire, Suite 3000
St. Louis, Missouri 63103
(314) 241-1800
(314) 259-5959 (facsimile)
HARTMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett, Esquire
Attorney ID #41071
221 East Chestnut Street
Lancaster, PA 17602-2782
(717) 299-7254 Fax: (717) 299-3160 Attorneys for Defendant
GIANT FOODS, LLC, : IN THE COURT OF COMMON PLEAS OF
Plaintiff
V.
THE SILVER SPRING
DEVELOPMENT, LLP,
Defendant
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
: NO. 06-3688 CIVIL TERM
PRAECIPE
TO THE PROTHONOTARY:
Please substitute the attached Certificate of Service (Exhibit A), for the Certificate of Service
attached to Defendant's Statement of Matters on Appeal that was filed on September 11, 2007.
The attached Certificate of Service reflects that on September 10, 2007, Judge Guido was served
with a copy of Defendant's Statement of Matters on Appeal
HARTMAN UNDERHILL B UBAKER LLP
Dated:_ Z- Ssow?-•..?t?? By:
Mark E. Lovett, Esquire
Attorney I.D. No. 41071
Attorneys for Defendant THE Silver Spring
Development, L.P.
00489387.1
-fx?) i I -? A
No. 06-3688 Civil Term
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am this day serving the foregoing document upon the
persons and in the manner indicated below.
Service by first class mail and addressed as follows:
Helen L. Gemmill, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
The Honorable Edward E. Guido
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
HARTMAN UNDERHILL & BRUBAKER LLP
Dated: September 10, 2007 By:
M
Attorney I.D. No. 41071
Attorneys for Defendant THE Silver Spring
Development, L.P.
00489387.1
No. 06-3688 Civil Term
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am this day serving the foregoing Praecipe upon the
persons and in the manner indicated below.
Service by first class mail and addressed as follows:
Helen L. Gemmill, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
The Honorable Edward E. Guido
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
Dated: September 12, 2007 By:
TMAN UNDERHILL & BRUBAKER LLP
Mark E. Lovett, Esquire
Attorney I.D. No. 41071
Attorneys for Defendant THE Silver Spring
Development, L.P.
00489387.1
-3-
mn
t
" c w C
c
GIANT FOOD STORES, LLC,
Plaintiff
V.
THE SILVER SPRING
DEVELOPMENT, L.P. and
WAL-MART, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 - 3688 EQUITY
y
CIVIL ACTION - EQUITY
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., October q , 2007
The defendant has filed a timely appeal from our order dated August 3, 2007.
The reasons for our decision were fully set forth in the opinion which accompanied it.
t0 67
DATE
?Helen L. Gemmill, Esquire
Kandice Giurintaiio, Esquire
For the Plaintiff
,Xradley A. Winters, Esquire
Michael M. Godsy, Esquire
For the Defendant
vf( ark E. Lovett, Esquire
For the Defendant
.1James A. Diamond, Esquire
For Wal-Mart, Inc.
A
sld
Edward E. Guido, J.
GIANT FOOD STORES, LLC, IN THE COUI?1' OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V.
BEFORE OLER, JR.. GUIDO, J.T.
ORDER OF COURT
AND NOW, this 311D day of AUGUST, 2007, for the reasons set forth in the
attached opinion Defendant is enjoined from violating the Super Market Restriction
contained in Section 14.01 of the Lease Agreement dated, May 29, 1992, as amended.
Provided, however, that neither the Super Market Restriction nor this order shall apply to
Wal-Mart, its successors or assigns in connection with the premises currently occupied
by Wal-Mart.
THE SILVER SPRING NO. 2006 - 3688 CIVIL ACTION - EQUITY
DEVELOPMENT, L.P.
Defendant
IN RE: CROSS MOTIONS OF PLAINTIFF & DEFENDANT
FOR SUMMARY JUDGMENT
Helen L. Gemmill, Esquire
Bradley A. Winters, Esquire
Marl: E. Lovett, Esquire
James A. Diamond, Esquire
Edward E. Guido, J.
sld
G f.ANT f`OOD STORES, LLC,
Plaintiff
V.
TI-IF SILVER SPRING
DEVELOPMENT, L.P,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 --3698 CIVIL ACTION - EQUITY
IN RE: CROSS MOTIONS OF PLAINTIFF & DEFENDANT
FOR SUMMARY JUDGMENT
BEFORE OLER. JR., GUIDO, JJ.
OPINION AND ORDER OF COURT
Plaintiff Giant Food Stores, LLC (hereinafter Giant) has filed this action in equity
seeking injunctive relief against the defendant. Specifically, Giant seeks to permanently
enjoin the defendant from leasing retail space to Sam's Club or any other store that will
sell groceries for off-premises consumption.
The parties have filed cross motions for summary judgment. The material facts
are not in dispute. The resolution of this controversy is dependent upon the interpretation
of specific language in a contract governing the relationship between the parties.
FACTS
Defendant's predecessor in interest developed the Silver Spring Commons
Shopping Center (hereinafter Shopping Center). In May 1992 the parties' predecessors
in interest entered into a 20 year lease agreement for certain retail space in the Shopping
Center. Plaintiff's predecessor in interest operated a Giant grocery store from that space.
NO. 2000 - 3088 CIVIL ACTION - EQUITY
The lease agreement contained a restrictive covenant which provides in relevant part as
follows:
Section 14.01.
... Landlord covenants and agrees that, for the term of this Lease and any
extension thereof, no store(s) and/or building (s), or any part of same, now or
hereafter acquired and/or constructed by Landlord within the Shopping Center or
upon any property within a three (3) mile distance therefrom in which the
Landlord has an ownership interest shall be used for the sale (at retail or
wholesale), for off-premises consumption of groceries, ... If at any time during
the term hereof the Demised Premises is not being used as a supermarket or for
the sale of food for a consecutive period in excess of six (6) months ... the
restrictions contained herein shall be null and void.
In April of 2001 Giant vacated the leased space and moved its grocery store to an
unrelated retail space across the highway from the Shopping Center. However, before its
move, Giant began negotiating with defendant's predecessor to sublet a portion of its
space in the Shopping Center and to maintain the effectiveness of the restrictive covenant
set forth above. At the same time the defendant's predecessor in interest was negotiating
with Wal-Mart to expand its presence in the Shopping Center from a Wal-Mart retail
store to a Wal-Mart Super Center, which would include the sale of groceries. By June of
that year the parties confirmed their intention to proceed in good faith to reach a legally
binding agreement which would incorporate the following terms:
In consideration of the Tenant's funding of the improvements to be
constructed by Marshalls, Landlord shall waive the nullification of the use
restrictions by virtue of Tenant's discontinuance of supermarket operation,
and shall agree that the use restrictions contained in Section 14.01 (the
"Supermarket Restriction") shall be reinstated and thereafter would expire
on the expiration date of the original term of the Lease. This waiver by
Landlord will take effect when the Sublease is approved by Landlord and
executed by Tenant as sub landlord and Marshalls as subtenant.
Notwithstanding the foregoing, the Supermarket Restriction (a) shall not
apply to Veal-Mart Stores, Inc. and its successors and assigns.
' Plaintiff's Exhibit 1, pp. 19-20.
N0. 000 -3688 CIVIL ACTION - EQUJTY
Tenant will approve in writing (a) Wal-Mart's operation of a supermarket.
(b) the expansion of the Wal-Mart Store into a portion of the shopping
center owned by Landlord. approximately as shown on the Sketch Plan
attached hereto as Schedule B. The result will be that the Wal-Mart store
will be expanded to contain approximately 200,000 square feet of space,
some of which, as determined by Wal-Mart, will be devoted to
supermarket type uses; and (c) the expansion of that portion of the overall
shopping center now owned by Wal-Mart.. .
By September of 2001 the parties entered into a legally binding agreement with
regard to the sublease and the Wal-Mart expansion. Defendant' predecessor agreed to
execute Giant's sublease for the purpose of consenting thereto. With regard to the Wal-
Mart expansion, the agreement provided, inter alia, as follows:
Giant and Marmaxx hereby confirm and reconfirm that they have no
objections to, and hereby consent to and approve (a) the conveyance of
approximately 4.56 acres of land and improvements thereon to Wal-Mart,
all as approximately shown in the shaded area on Exhibit A attached
hereto, ... (b) the construction by Wal-Mart of an expansion to the
existing Wal-Mart store, the expansion to take place approximately
within the area crosshatched within the shaded area and (c) the
operation by Wal-Mart of its store, as so expanded, as a : "Wal-Mart
Super center";
(emphasis added),3
In July of 2003 Giant subleased the remaining portion of its space in the shopping
center. In September of that year, the parties finally executed an Amendment to the
original lease agreement. The document began by reciting the following background:
A. Landlord is the fee owner of certain real property that comprises a portion of
the Silver Spring Commons Center, located in Silver Spring Township,
Cumberland County, Pennsylvania, as depicted on the Site Plan attached
hereto as Exhibit "A" (the Shopping Center"),
B. Landlord's predecessor in interest and Tenant's predecessor in interest entered
into a Lease Agreement dated May, 29,m 1992 (the "Lease"), pursuant to
which Tenant leases certain premises located in the Shopping Center (the
"Demised Premises") as described in the Lease...
Plaintiff's Exhibit 3, p. 2, Para. (A) 4 and (B) 2
Plaintiff's Exhibit 4, p. 1.
3
N0.2000 - 3688 CIVIL ACTION - EQUITY
C. Tenant elected to discontinue the operation of the Demised Premises as a
supermarket pursuant to its rights set forth in Section 6.02 of the Lease. and
ceased operations in the Demised Premises on or about April 24, 2001.
D. Section 14.01 of the Lease sets forth a use restriction binding the Shopping
Center and certain other property within a three (3) mile distance therefrom
(the "Supermarket Restriction"), which shall become null and void if the
Demised Premises are not being used as a supermarket or for the sale of food
for a consecutive period in excess of six (6) months, excluding any Excused
Period.
E. Tenant, as sublessor, and Marmaxx Operating Corp. ("Marmaxx"), as
sublessee, entered into a Sublease Agreement dated as of September 20, 2001
(the "Marmaxx Sublease"), pursuant to which Marmaxx occupies a portion of
the Demised Premises, which portion is marked "Marmaxx Space" on Exhibit
"A" hereto.
F. Tenant, as sublessor, and A.C. Moore, Inc. ("A.C. Moore"), as sublessee,
entered into a Sublease Agreement dated as of July 1, 2003 (the "A.C. Moore
Sublease") pursuant to which A.C. Moore occupies the remainder of the
Demised Premises, which remainder is marked "A.C. Moore Space" on
Exhibit "A" hereto.
G. Wal-Mart Stores, Inc. ("Wal-Mart") is the fee owner of certain real
property that comprises a portion of the Shopping Center (the "Wal-
Mart Property") as depicted on Exhibit "A" hereto.
H. Landlord and Tenant desire to amend the Lease in accordance with the
provisions set forth herein.
(emphasis added) ,4 The relevant terms of the amendment provide as follows:
3. Subleases. Landlord and Tenant agree that from and after the Expiration
Date, Tenant shall have no further rights, duties or obligations under the
Marmaxx Sublease or the A. C. Moore Sublease, except for any rights, duties
or obligations accruing before the Expiration Date.
4. Supermarket Restriction. Landlord and Tenant agree that, effective upon the
execution of the Marmaxx Sublease on or about September 20, 2001, Section
14.01 of the Lease shall have been amended to provide that, whether or not
the Demised Premises is operated as a supermarket or for the sale of food, the
Supermarket Restriction shall remain in full force and effect throughout the
original term of the Lease...
`' Plaintiff's Exhibit 5, pp. 1-2.
4
NO. 2006 - 1688 CIVIL ACTION - EQUITY
5. Val-Mart. Notri,ithstanding anything to the contrary, contained herein or
in the Lease, the Supermarket Restriction shall not apply to Wal-11Rart,
its successors or assigns.
(emphasis added).'
The defendant purchased the Shopping Center in January 2005. In April of 2006
it filed an application for a conditional use to construct a Sam's Club retail facility in a
portion of the Shopping Center not occupied by Vial-Mart. Sam's Club is owned by
Sam's Club East, Inc. Its retail facilities sell groceries. Since Sam's Club East, Inc. is a
subsidiary of Wal-Mart, defendant intends to lease the space to Wal-Mart which will in
turn "assign" it to Sam's Club East.
DISCUSSION
In order to grant a motion for summary judgment we must be satisfied that there
are no genuine issues of material fact and that the moving party is entitled to judgment as
a matter of law. Sphere Drake Ins. Co. v. Philadelphia Gas Works, 566 Pa. 541, 782
A.W. 510 (Pa. 2001). In the instant case the parties agree that there are no genuine issues
of material fact. Furthermore, each party contends that it is entitled to judgment in its
favor as a matter of law.
Both parties agree that the clear language of the agreement exempts "Wal-Mart,
its successors or assigns" from the. Supermarket Restriction. Plaintiff contends that the
contract language must be interpreted to apply the exemption only to the property upon
which the Wal-Mart Super center is located. Defendant argues that the contract language
should be interpreted broadly to include any premises within the Shopping Center.
5 Plaintiff's Exhibit 5, p. 2.
5
NO. 2006 3685 C1\71L ACTION - EQtJII
The Pennsylvania Supreme Court has enunciated rules for contract interpretation
that we must follotiv in reaching our decision. In Ca])c v. Devito, 564 Pa. 267. 767 A.2d
1047 (Pa. 2002) the Court articulated the general rule as follows.
"['K]hen a written contract is clear and unequivocal, its meaning must be
determined by its contents alone." In construing a contract, we must
determine the intent of the parties and give effect to all of the provisions
therein. "An interpretation will not be given to one part of the contract
which will annul another part of it."
(citations omitted) 767 A.2d at 1050. Furthermore, "even where there is no specific
reference to a prior agreement or agreements, several contracts shall be interpreted as a
whole and together,'' Shehadi v. Northeastern Nat. Bank: of'Pennsylvania, 474 Pa. 232,
236, 378 A.2d 304, 306 (Pa. 1977).
Applying those principles to the case at bar we must agree with plaintiff's
interpretation. Since both parties agree that the contract is clear and unequivocal, we
must determine the parties' intent from the contract documents. We are satisfied that the
contracting parties intended only the portion of the Shopping Center occupied by Wal-
Mart, and referred to specifically in the prior agreements, to be exempted from the
Supermarket Restriction. Otherwise there would be no reason to identify the particular
parcel in the various contract documents, including the lease amendment. Viewed in that
context, the term "successors and assigns" refers to only subsequent owners or lessors of
the Wal-Mart parcel identified in the documents. This is the only logical interpretation of
that language. To interpret it as the defendant suggests would effectively nullify the
Supermarket Restriction. The landlord could lease any portion of the Shopping Center
6
• NO. 2006 --1688 CIVIL ACTION - EQUITY
to an entity selling groceries by simply using V"al-Mart as a straw party. We are certain
that this was not the intent of the contracting parties.6
Defendant next contends that even if it was the intent of the parties' predecessors
in interest that Wal-Mart's exemption from the Supermarket Restriction was limited to
the identified parcel. the limitation is not binding upon it as a good faith purchaser for
value. It points out that the recorded memorandum of lease makes no reference to a
particular parcel of property. It argues that as an "hereditament" of the property the
Super Market restriction is subject to 21 P.S. §351 which provides in relevant part:
Every such deed, conveyance, contract, or other instrument of wrintg
which shall not be acknowledged or proved and recorded, as aforesaid,
shall be adjudged fraudulent and void as to any subsequent bona fide
purchaser ... without actual or constructive notice ...
21 P.S. § 351.
Defendant's argument fails because we are satisfied that it had constructive, if not
actual, notice that the exemption was limited to the Wal-Mart parcel. It concedes that it
reviewed all of the tenants' leases as part of its due diligence before purchasing the
Shopping Center. These leases included not only the Giant Lease and Amendments, but
also the Marmaxx and A.C. Moore subleases. Furthermore, Pennsylvania law has long
recognized that:
... it is the duty of a purchaser of real property to make inquiry respecting
the rights of the party in possession and failing to do so they are affected
with constructive notice of such facts as would have come to his
knowledge in the propel- discharge of that duty.
Malained v. S'ede1s1n1,. 367 Pa. 353, 357, 80A.2d 853, 855 (Pa. 1951).
This rationale applies even if we view only the "First Amendment to Lease Agreement" and the lease
itself as the contract documents. However, we are further satisfied that the contract includes not only those
documents, but also the other documents quoted from above and/or referred to in the "Background" section
of the "First Amendment to Lease Agreement."
7
6% NO. 2000 -- ;688 CIVIL ACTION- 1- QUITY
WC must now determine whether plaintiff is entitled to a permanent injunction as
ri matter of law. The burden is upon plaintiff to establish its clear right to relief. 11gf4tln
Tivp V' Jones, 571 Pa. 637, 813 A.2d 659, (Pa. 2002), However, it "need not establish
either irreparable harm or immediate relief' only "a legal wrong from which there is no
adequate redress at law." Id. at 663. We have already determined that the Supermarket
Restriction applies to the entire Shopping Center except for the Wal-mart parcel. We
have also determined that the restriction is binding upon the defendant. It is undisputed
that defendant intends to lease another portion of the Shopping Center to Wal-Mart for
the operation of a Sam's Club, which would clearly violate the restriction. Since the loss
of its customers is impossible to quantify, we find that the defendant has no adequate
remedy at law. 7 Therefore, we well grant the injunctive relief.
ORDER OF COURT
AND NOW, this 3'D day of AUGUST. 2007, for the reasons set forth in the
attached opinion Defendant is enjoined from violating the Super Market Restriction
contained in Section 14.01 of the Lease Agreement dated, May 29, 1992, as amended.
Provided, however, that neither the Super Market Restriction nor this order shall apply to
Wal-Mart, its successors or assigns in connection with the premises currently occupied
by Wal-Mart.
By the Court,
Helen L. Gemmill, Esquire
Bradley A. Winters, Esquire
/s/ Edward E. Guido
Edward E. Guido, J.
Mark E. Lovett, Esquire
James A. Diamond, Esquire
7 We note that defendant has not even contended that plaintiff has an adequate remedy at lave.
8
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
SUPERIOR COURT OF PENNSYLVANIA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
Giant Food Stores LLC
VS.
The Silver Spring Development LP
2006-3688 Civil Term
1476 MDA 2007
The documents comprising the record have been numbered from No.1 to 249, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 10-18-2007.
Curtis $( Long, Prothonotary
Regina Lebo
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date
Signature & Title
Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
county of Cumberland
1476 MDA 2007
to No. 06-3688 Civil
in the Commonwealth of Pennsylvania
Term, 19 is contained the following:
COPY OF Appearance DOCKET ENTRY
Giant Food Stores, LLC
VS.
The Silver Spring Development, L.P.
**See Certified Copy of the Docket Entries**
Commonwealth of Pennsylvania
County of Cumberland ss:
1, Curtis R. Long , Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full, true and correct copy of the whole record of the
case therein stated, wherein
Giant Food Stores, LLC
Plaintiff, and The Silver Spring
Development L.P.
Defendant , as the same remains of record
before the said Court at No. 06-3688 of
c1v11 Term, A. D. 19 .
In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court
this 1 f?th day of October A. D., 07 .
Rk S
Prothonotary
Edgar B. Bayley President Judge of the Ninth
Judicial District, composed of the County of Cumberland, do certify that
Curtis R. Long , by whom the annexed record, certificate and
attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is
Prothonotary in and for said County of Cumberland in
the Commonwealth of Pennsylvania, duly commissioned and qualifie f whose acts as such full faith
and credit are and ought to be given as well in Courts of judicat as elsew , e said record,
certificate and attestation are in due form of law and made a prope ffic
President Jud
Commonwealth of Pennsylvania
County of Cumberland ss:
1, Dirt; -- R_ Tnnq , Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable Eager B. BaylP,y
by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time
of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF, 1 hake hereunto
set my hand and affixed the seal of said Court this
Or-tober
day of
A. D. 1131x--=7
. Res
Prothonotary
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PYS511 Cumberland County Prothonotary's Office Page 1
Civil Case Print
2006-03688 GIANT FOOD STORES LLC (vs) SILVER SPRING DEVELOPMENT L P
Reference No. Filed........ 6/28/2006
Case Type...... COMPLAINT
Jud
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Judge Assigned: GUIDO EDWARD E Jury Trial....
Disposed Desc.:
------------ Case Comments ---------- Disposed Date.
Hi
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C 0/00/0000
g
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rt 1.: 1476MDA2007
Higher Crt 2.:
General Index Attorney Info
GIANT FOOD STORES LLC PLAINTIFF GIURINTANO KANDICE J
1149 HARRISBURG PIKE
P 0 BOX 249
CARLISLE PA 17013
VER SPRING DEVELOPMENT LP DEFENDANT LOVETT MARK E
THE
1149 HARRISBURG PIKE
P 0 BOX 249 '
CARLISLE PA 17013 0249
* Date Entries
********************************************************************************
6/28/2006
6/28/2006
6/30/2006
7/07/2006
7/07/2006
Imo- ?d? 7/07/2006
7/11/2006
//D - /// 7/11/2006
//,2-//3 7/18/2006
3 7/24/2006
11q- /9?
15i - /..'S,S 9/13/2006
/S4, /&/ 10/18/2006
14,D -14.3 1110612006
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
COMPLAINT FOR INJUNCTIVE RELIEF
-------------------------------------------------------------------
PLAINTIFF'S MOTION FOR PRELIMINAY INJUNCTION
-------------------------------------------------------------------
ORDER OF COURT - 06-30-06 - IN RE: HEARING ON PLFF'S REQUEST FOR
PRELIMINARY INJUNCTION ON 07-07-06 AT 2:30 PM - BY EDWARD E GUIDO
J - COIES MAILED 07-03-06
-----------------------------------------------------------
UNCONTESTED MOTION FOR ADMISSION OF BRADLEY A WINTERS AND MICHAEL
M GODSY PRO HAC VICE - MARK E LOVETT ESQ FOR DEFT
-------------------------------------------------------------------
PRAECIPE TO ENTER APPEARANCE - BY MARK E LOVETT ATTY FOR DEFT
-------------------------------------------------------------------
ORDER - 07-07-06 - IN RE: ORDERED THAT MOTION IS GRANTED - BRADLEY
A WINTERS AND MICHAEL M GODSY ARE ADMITTED PRO HAC VICE FOR
DEFT-THF SILVER SPRING DEV LP IN THE LITIGATION - BY EDWARD E
GUIDO J -COPY GIVEN PERSONALLY TO DEFT'S ATTY & COPY MAILED
07-07-06
-------------------------------------------------------------
ORDER OF COURT - 07-07-06 - IN RE: BY AGREEMENT OF THE PARTIES
THEREIS NO NEED FOR A HEARING ON THE REQUEST FOR A PRELIMINARY
INJUNCTION - DEFT REALIZES THAT IT WILL PRECEED IN ITS EFFORT TO
GET THE NECESSARY APPROVALS AT ITS OWN RISK - FURTHER THE PARTIES
HAVE AGREED THAT WE WILL HAVE A HEARING ON 10-05-06 AT 1 PM - BY
EDWARD E GUIDO J - COPIES MAILED 07-11-06
-------------------------------------------------------------------
ORDER OF COURT -,07-07-06 - IN RE: BY AGREEMENT OF PARTIES
WAL-MART INC AND ANY SUBSIDIARY THERETO WAS ERRONEOUSLY JOINED IN
TEH CAPTION OF THIS CASE AND IS HEREBY DISMISSED - BY EDWARD E
GUIDO J - COPIES MAILED 07-11-06
-------------------------------------------------------------------
ORDER - 07-17-06 - IN RE: UPON CONSIDERATION OF THE REQUEST OF THE
SILVER SPRING DEV LP TO DIRECT THE STENOGRAPHER TO PRODUCE THE
TRASCRIPT OF THE PROCEEDINGS IN THIS MATTER THE STEOGRAPHER IS
HEREBY ORDERED TO PRODUCE THE TRANSCRIPT OF THE PROCEEDINGS HELD
07-07-06 AT 2:30 PM - BY EDWARD E GUIDO J - COPY MAILED 07-19-06
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TRANSCRIPT OF PROCEEDINGS - 07-07-06 IN CR 3 BY EDWARD E GUIDO J
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ORDER OF COURT -09-11-06 - IN RE: HEARING 11-17-06 AT 8:30 AM IN
CR 3 - BY EDWARD E GUIDO J - COPIES MAILED 09-13-06
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DEFT'S ANSWER AND AFFIRMATIVE DEFENSES - BY MICHAEL M GODSY ATTY
FOR PLFFS
-------------------------------------------------------------------
STIPULATION - BY MARK E LOVETT ATTY FOR DEFT & HELEN L GEMMILL
ATTY FOR PLFF
PYS511 Cumberland County Prothonotary's Office Page
Civil Case Print
2006-03688 GIANT FOOD STORES LLC (vs) SILVER SPRING DEVELOPMENT L P
Reference No. Filed. 6/28/2006
Case Type...... COMPLAINT Time. 1.23
Judgment..... 00 Ekecution?Date 0/000000
Judge Assigned: GUIDO EDWARD E Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.: 1476MDA2007
Higher Crt 2.:
------------------------------------------------------
1&.(. -/7111/06/2006 DEFT'S AMENDED ANSWER WITH NEW MATTER - BY MARK E LOVETT ATTY FOR
--------------------------------------------
/7,.?-/74?>11/16/2006 REPLY TO NEW MATTER - BY KANDICE J GIURINTANQ ATTY FOR PLFF
-------------------------------------------------------------------
/77 11/17/2006 ORDER OF COURT - 11-17-06 - IN RE: PLFF'S EXHIBITS 1 THROUGH 13
ARE ADMITTED WITHOUT OBJECTION AS TO AUTHENTICITY BUT WITH THE
RESERVATION AS TO THE COURT CONSIDERING ANY PAROLE EVIDENCE -
DEFT'S EXHIBITS 1 THROUGH 7 ARE ADMITTED BY AGREEMENT OF THE
PARTIES AND WITHOUT OBJECTIONS SAVE FOR THE RELEVANCY AND PAROLE
EVIDENCE ISSUE BY EDWARD E GUIDO J - COPIES MAILED 11-17-06
------------------------------------------------------
/ 7f 11/17/2006 ORDER OF COURT - 11-17-06 - IN RE: BY AGREEMENT OF THE PARTIES
THEY WILL BE FILING CROSS MOTIONS FOR SUMMARY JUDGMENT AND LISTING
THE MATTER FOR ARGUMENT COURT - PENDING THE FILING AND ARGUING OF
THOS MOTIONS THESE PROCEEEDINGS ARE CONTINUED GENERALLY - BY
EDWARD E GUIDO J - COPIES MAILED 11-17-06
--------------------------------------------------
------------
? 12 / 0 5 / 2 0 0 6 MIDI ON FORGSUMMARY JUDGMENT OFPLFFF GIANT FOOD STORES LLC - BY J TTY FOR
--------------------------------------------------------
12/05/20.06 DEFT'S MOTION FOR SUMMARY JUDGMENT - BY MICHAEL M GODSY ATTY
-----------------------------------------------------
?12/20/2006 JURDGMENT FOR LISTING E CASETFOR ARGUMENT - DEFT'S MOTION FOR SUMMARY-- BY MARK ATTY FOR DEFT
--------------------------------------------------
I ONSE TO JUDG 1/04/2007 MICHAELNM'GODSYPATTY FORPPLFFS&MMARKNEFLLOVETTMATTY FORMDENT EFT BY -
-----------------------------------
-------------------------
C -? f0 1/04/2007 HLAINTIFF S RESPONSE TORDPLFFS MOTION FOR SUMMARY JUDGMENT - BY
---------------------------------------------
---------------------
//-, 1/04/2007 JUUDDGMENT OFF R PLFF LISTING GIANT A FOOD FOR ARGUMENT - BY MOTION HELEN FOR GEMMILL ATTY
FOR PLFF
-------------------------------------------------------------------
8/03/2007 ORDER OF COURT - DATED 08-03-07 - IN RE: CROSS MOTIONS OF PLFF
AND DEFT FOR SUMMARY JUDGMENT BEFORE OLER JR GUIDO JJ - DEFT IS
ENJOINED FROM VIOLATING THE SUPERMARKET RESTRICTTON CONTAINED IN
SECTION 14.01 OF THE LEASE AGREEMENT DATED 05-29-92 AS AMENDED-
PROVIDED HOWEVER THAT NEITHER THE SUPER MARKET RESTRICTION NOR
THIS ORDER SHALL APPLY TO WAL-MART ITS SUCCESSORS OR ASSIGNS IN
CONNECTION WITH THE PREMISES CURRENTLY OCCUPIED BY WAL-MART - BY
EDGAR B BAYLEY J - COPIES MAILED 08-03-07
------------------------------------------------------------------
8/03/2007 OPINION AND ORDER OF COURT - DATED 08-03-07 - IN RE: CROSS MOTIONS
OF PLFF & DEFT FOR SUMMARY JUDGMENT BEFORE OLER JR GUIDO JJ - BY
EDWARD E GUIDO J
-------------------------------------------------------------------
8/24/2007 NOTICE OF APPEAL - TO SUPERIOR COURT OF PENNSYLVANIA - BY MARK E
LOVETT ATTY FOR DEFT
-------------------------------------------------------------------
?. 8/29/2007 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1476 MDA 2007
------------------------------------------------------------------
8/30/2007 AMENDED CERTIFICATED OF SERVICE - NOTICE OF APPEAL FILED 08-24-07
- BY MARK E LOVETT ATTY FOR PETITIONER
c;?30 9/04/2007 ORDER OF COURT - DATED 9/4107 - DEFENDANT'S COUNSEL IS DIRECTED TO
-------------------------------------------------------------------
FILE A CONCISE STATEMENT OF MATTERS COMPLAINTED OF ON APPEAL
WITHIN 14 DAYS OF TODAY'S DATE IN ACCORDANCE WITH RULE OF
9%5?07LATE PROCEDURE 1925(B) - BY EDWARD E GUIDO J - COPY MAILED
-------------------------------------------------------------------
9/11/2007 DEFENDANT'S STATEMENT OF MATTERS ON APPEAL BY MARK E LOVETT ESQ
----------- ---------- ----------- ---------- -------- --------- --------
9/13/2007 MARKPRAECEIPLOVETTE TO ATTACHED CERTIFICATE OF SERVICE - BY
t?_?3 7 FOR
PYS511 Cumberland County Prothonotary's Office Page
Civil Case Print
2006-03688 GIANT FOOD STORES LLC (vs) SILVER SPRING DEVELOPMENT L P
Reference No... Filed......... 6/28/2006
Case Type...... COMPLAINT Time. 11.23
Judgment..... 00 Execution Date 0/00/0000
Judge Assigned: GUIDO EDWARD E Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.: 1476MDA2007
Higher Crt 2.:
-------------------------------------------------------------------
035-c-;Ii'7 10/09/2007 OPINION - DATED OCTOBER 4, 2007 - IN RE: OPINION PURSUANT TO PA R
A P 1925 - IN RE: CROSS MOTIONS OF PLAINTIFF & DEFENDANT FOR
SUMMARY JUDGMENT BY THE COURT EDWARD E GUIDO J
COPIES MAILED
-------------------------------------------------------------------
10/18/2007 NOTICE OF DOCKET ENTRIES MAILED TO HELEN L GEMMILL ESQ JAMES A
DIAMOND ESQ BRANLEY A WINTERS ESQ AND MARK E LOVETT ESQ
- „ - - - - - - - - - `- LAST ENTRY - - - - - - - - - - - - - -
* Escrow Information
* Fees & Debits Beg Bal Pymts/Adj End Bal
******************************** ******** ****** *******************************
COMPLAINT 35.00 35.00 .00
TAX ON CMPLT .50 .50 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION 5.00 5.00 .00
JCP FEE 10.00 10.00 .00
APPEAL HIGH CT 48.00 48.00 .00
------------------------ ------------
103.50 103.50 .00
* End of Case Information
********************************************************************************
TRUE COPY FROM RECORD
in Testimony whereof, 1 here unto set my hared
and the seal of said Court-at Carlisle, Pa.
This ..... ?....... day of...c .......
7
. ...k....:.?,..
Prothonotary .
e
AS%
Irene M. Bizzoso, Esq.
Deputy Prothonotary
Elizabeth E. Zisk
Chief Clerk
?r
Supreme Court of Pennsylvania
Middle District
May 26, 2009
Mr. Curtis R. Long
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
RE: Giant Food Stores LLC, Respondent
V.
THE Silver Spring Development, L.P., Petitioner
Superior Docket Number - 1476 MDA 2007
Trial Court/Agency Dkt. Number: 2006-03688
No. 765 MAL 2008
Appeal Docket No.:
Date Petition for Allowance of Appeal Filed: November 14, 2008
Disposition: Order Denying Petition for Allowance of Appeal
Date: May 26, 2009
Rea rg u ment/Reconsideration Disposition:
Rea rg ume nt/Reconsideration
Disposition Date:
/slm
P.O. Box 624
Harrisburz. PA 17108
717-787-6181
www.aopc.org
w
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
GIANT FOOD STORES, LLC,
Respondent
V.
No. 765 MAL 2008
Petition for Allowance of Appeal from
the Order of the Superior Court
THE SILVER SPRING DEVELOPMENT,
L.P., ;
Petitioner
PER CURIAM
ORDER
AND NOW, this 26th day of May, 2009, the Petition for Allowance of Appeal is
DENIED.
TRUE AND CORRECT COPY
ATTEST: May 26, 2009
Elaine Hellen, Assistant Chief Clerk
9 ? r
A
X %
Karen%daarTblett, B4 6uperior Court of 3pennop[bania
Prothonotary Middle DiEtrict
Milan K Mrkobr4 Est.
Deputy Prothonotary
July 8, 2009
CERTIFICATE OF REMITTAUREMAND OF RECORD
TO: Mr. Long
Prothonotary
RE: Giant Food Stores, LLC. v. THE Silver Spring Dev.
1476 M DA 2007
Intermediate Court Docket No:
Trial Court: Cumberland County Court of Common Pleas
Associated Case(s):
Trial Court Docket No: 2006-03688
CP-21-CR-0002195-1998
J 510 of 2004
100Rneareet, aite400
Harristug, R417101
(717) 772-1294
www. sups ior. court. state pa us
Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is
the entire record for the above matter.
Original Record contents:
Item
Part
Envelopes
Remand/Remittal Date:
Filed Date Description
October 19, 2007 1
October 19, 2007 2
' JUL 0 8 2009
ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and
returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need
not acknowledge receipt.
Respectfully,
jQfl<j`?Ie?
Milan K. Mrkobrad, Esq.
Deputy Prothonotary
/alv
Enclosure
Giant Food Stores, LLC. v. THE Silver Spring Dev. July 8, 2009
1476 MDA 2007
Letter to: Mr. Curtis R. Long
Acknowledgement of Certificate of RemittaVRemand of Record (to be returned):
Signature
Date
Printed Name
2.r°L r?,a u= r
t
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
GIANT FOOD STORES, LLC, : No. 765 MAL 2008
Respondent Petition for Allowance of Appeal from
the Order of the Superior Court
V.
THE SILVER SPRING DEVELOPMENT,
L.P.,
Petitioner
ORDER
PER CURIAM
AND NOW, this 26th day of May, 2009, the Petition for Allowance of Appeal is
DENIED.
TRUE AND CORRECT COPY
ATTEST: May 26, 2009
6- ,
Elaine Hellen, Assistant Chief Clerk
FIU~ 4
OF THt
1U?J G . . p11 4
r?
V ice' ?: ? . "??
1. A13025/08
2008 PA Super 245
GIANT FOOD STORES, LLC,
Appellee
V.
THE SILVER SPRING DEVELOPMENT,
L. P.,
Appellant
IN THE SUPERIOR COURT OF
PENNSYLVANIA
No. 1476 MDA 2007
Appeal from the Order Entered August 3, 2007,
Court of Common Pleas, Cumberland County,
Civil Division, at No. 2006-03688.
BEFORE: LALLY-GREEN, SHOGAN and COLVILLE*, JJ.
OPINION BY SHOGAN, J.: FILED: October 17, 2008
$ 1 Appellant, THE Silver Spring Development, L.P., the owner of a
shopping center, appeals from the order that granted summary judgment in
favor of Appellee, Giant Food Stores, LLC, in this action in equity and that
enjoined Appellant from violating a Supermarket Restriction contained in a
1992 Lease Agreement. We affirm.
$ 2 The trial court summarized the facts of this case as follows:
[Appellant's] predecessor in interest developed the Silver
Spring Commons Shopping Center (hereinafter Shopping
Center). In May 1992[,] the parties' predecessors in interest
entered into a 20[-]year lease agreement for certain retail space
in the Shopping Center. [Appellee's] predecessor in interest
operated a Giant grocery store from that space. The lease
agreement contained a restrictive covenant which provides[,] in
relevant part[,] as follows:
Section 14.01.
*Retired Senior Judge assigned to the Superior Court.
J. A13025/08
. . . Landlord covenants and agrees that, for the
term of this Lease and any extension thereof, no
store(s) and/or building(s), or any part of same, now
or hereafter acquired and/or constructed by Landlord
within the Shopping Center or upon any property
within a three (3) mile distance therefrom in which
the Landlord has an ownership interest shall be used
for the sale (at retail or wholesale), for off-premises
consumption of groceries, ... If at any time during
the term hereof the Demised Premises is not being
used as a supermarket or for the sale of food for a
consecutive period in excess of six (6) months . . .
the restrictions contained herein shall be null and
void.
In April of 2001[,] Giant vacated the leased space and
moved its grocery store to an unrelated retail space across the
highway from the Shopping Center. However, before its move,
Giant began negotiating with [Appellant's] predecessor to sublet
a portion of its space in the Shopping Center and to maintain the
effectiveness of the restrictive covenant set forth above. At the
same time[,] [Appellant's] predecessor in interest was
negotiating with Wal-Mart to expand its presence in the
Shopping Center from a Wal-Mart retail store to a Wal-Mart
Super Center, which would include the sale of groceries. By
June of that year[,] the parties confirmed their intention to
proceed in good faith to reach a legally binding agreement which
would incorporate the following terms:
In consideration of the Tenant's funding of the
improvements to be constructed by Marshalls,
Landlord shall waive the nullification of the use
restrictions by virtue of Tenant's discontinuance of
supermarket operation, and shall agree that the use
restrictions contained in Section 14.01 (the
"Supermarket Restriction") shall be reinstated and
thereafter would expire on the expiration date of the
original term of the Lease. This waiver by Landlord
will take effect when the Sublease is approved by
Landlord and executed by Tenant as sub landlord
and Marshalls as subtenant. Notwithstanding the
foregoing, the Supermarket Restriction (a) shall not
-2-
J. A13025/08
apply to Wal-Mart Stores, Inc. and its successors and
assigns.
Tenant will approve in writing (a) Wal-Mart's
operation of a supermarket, (b) the expansion of the
Wal-Mart store into a portion of the shopping center
owned by Landlord, approximately as shown on the
Sketch Plan attached hereto as Schedule B. The
result will be that the Wal-Mart store will be
expanded to contain approximately 200,000 square
feet of space, some of which, as determined by Wal-
Mart, will be devoted to supermarket type uses; and
(c) the expansion of that portion of the overall
shopping center now owned by Wal-Mart ...
By September of 2001[,] the parties entered into a legally
binding agreement with regard to the sublease and the Wal-Mart
expansion. [Appellant's] predecessor agreed to execute Giant's
sublease for the purpose of consenting thereto. With regard to
the Wal-Mart expansion, the agreement provided, inter alia, as
follows:
Giant and Marmaxx hereby confirm and reconfirm
that they have no objections to, and hereby consent
to and approve (a) the conveyance of approximately
4.56 acres of land and improvements thereon to
Wal-Mart, all as approximately shown in the shaded
area on Exhibit A attached hereto, . . . (b) the
construction by Wal-Mart of an expansion to
the existing Wal-Mart store, the expansion to
take place approximately within the area
crosshatched within the shaded area and
(c) the operation by Wal-Mart of its store, as so
expanded, as a: "Wal-[m]art Super[center]";
(emphasis added).
In July of 2003[,] Giant subleased the remaining portion of
its space in the shopping center. In September of that year, the
parties finally executed an Amendment to the original lease
-3-
I A13025/08
agreement. The document began by reciting the following
background:
A. Landlord is the fee owner of certain real
property that comprises a portion of the Silver
Spring Commons Center, located in Silver Spring
Township, Cumberland County, Pennsylvania, as
depicted on the Site Plan attached hereto as
Exhibit "A" (the "Shopping Center").
B. Landlord's predecessor in interest and Tenant's
predecessor in interest entered into a Lease
Agreement dated May 29, [] 1992 (the "Lease"),
pursuant to which Tenant leases certain
premises located in the Shopping Center
(the "Demised Premises") as described in
the Lease...
C. Tenant elected to discontinue the operation of
the Demised Premises as a supermarket
pursuant to its rights set forth in Section 6.02 of
the Lease, and ceased operations in the
Demised Premises on or about April 24, 2001.
D. Section 14.01 of the Lease sets forth a use
restriction binding the Shopping Center and
certain other property within a three (3) mile
distance therefrom (the "Supermarket
Restriction"), which shall become null and void if
the Demised Premises are not being used as a
supermarket or for the sale of food for a
consecutive period in excess of six (6) months,
excluding any Excused Period.
E. Tenant, as sublessor, and Marmaxx Operating
Corp. ("Marmaxx"), as sublessee, entered into a
Sublease Agreement dated as of September 20,
2001 (the "Marmaxx Sublease"), pursuant to
which Marmaxx occupies a portion of the
Demised Premises, which portion is marked
"Marmaxx Space" on Exhibit "A" hereto.
-4-
3. A13025/08
F. Tenant, as sublessor, and A.C. Moore, Inc.
("A.C. Moore"), as sublessee, entered into a
Sublease Agreement dated as of July 1, 2003
(the "A.C. Moore Sublease") pursuant to which
A.C. Moore occupies the remainder of the
Demised Premises, which remainder is marked
"A.C. Moore Space" on Exhibit "A" hereto.
G. Wal-Mart Stores, Inc. ("Wal-Mart") is the
fee owner of certain real property that
comprises a portion of the Shopping Center
(the "Wal-Mart Property") as depicted on
Exhibit "A" hereto.
H. Landlord and Tenant desire to amend the Lease
in accordance with the provisions set forth
herein.
(emphasis added). The relevant terms of the amendment
provide as follows;
3. Subleases. Landlord and Tenant agree that
from and after the Expiration Date, Tenant shall have
no further rights, duties or obligations under the
Marmaxx Sublease or the A.C. Moore Sublease,
except for any right, duties or obligations accruing
before the Expiration Date.
4. Supermarket Restriction. Landlord and Tenant
agree that, effective upon the execution of the
Marmaxx Sublease on or about September 20, 2001,
Section 14.01 of the Lease shall have been amended
to provide that, whether or not the Demised
Premises is operated as a supermarket or for the
sale of food, the Supermarket Restriction shall
remain in full force and effect throughout the original
term or the Lease ...
5. Wal-Mart. Notwithstanding anything to the
contrary contained herein or in the Lease, the
Supermarket Restriction shall not apply to Wal-
Mart, its successors or assigns.
-5-
1. A13025/08
(emphasis added).
[Appellant] purchased the Shopping Center in January
2005. In April of 2006[,] it filed an application for a conditional
use to construct a Sam's Club retail facility in a portion of the
Shopping Center not occupied by Wal-Mart. Sam's Club is
owned by Sam's Club East, Inc. Its retail facilities sell groceries.
Since Sam's Club East, Inc. is a subsidiary of Wal-Mart,
defendant intends to lease the space to Wal-Mart which will in
turn "assign" it to Sam's Club East.
Trial Court Opinion, 8/03/07, at 1-5 (footnotes omitted).
¶ 3 On June 28, 2006, Appellee filed this action in equity seeking a
permanent injunction to enjoin Appellant from leasing retail space to Sam's
Club or any other store that will sell groceries for off-premises consumption.
The parties filed cross motions for summary judgment. On August 3, 2007,
the trial court granted Appellee's motion for summary judgment and
enjoined Appellant from violating the Supermarket Restriction. Appellant
filed its timely notice of appeal on August 23, 2007. On September 4, 2007,
the trial court ordered Appellant to file a concise statement pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed its
concise statement on September 10, 2007.
¶ 4 Appellant raises the following issues for our review:
1. Whether the trial court erred in construing documents
executed prior to the First Amendment to Lease as being
part of the First Amendment to Lease?
-6-
). A13025/08
2. Whether the trial court erred in interpreting the First
Amendment to Lease by rendering an interpretation that
nullifies the defined term therein of "Wal-Mart"?
3. Whether the trial court erred in ruling that the "intent of the
parties" differed from the "clear and unequivocal" terms of
the First Amendment to Lease?
4. Whether the trial court erred in modifying and reforming the
restrictive covenant-effectively, by substituting the defined
term "Wal-Mart Property" for the parties' clear use of "Wal-
Mart"-when the contractual language was unambiguous
and neither party sought reformation as a remedy?
Appellant's Brief at 1-2.1
¶ 5 Our standard for reviewing a trial court's grant of summary judgment
is well-established: ""[W]e view the record in the light most favorable to the
non-moving party and resolve all doubts as to the existence of a genuine
issue of material fact in its favor." Juniata Valley Bank v. Martin Oil Co.,
736 A.2d 650, 655 (Pa. Super. 1999).
[A] non-moving party must adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of
1 At the outset, we must comment on the fact that Appellant's brief to this
Court is not in conformance with many of the briefing requirements set forth
in the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. Chapter 21.
For example, Appellant's "Statement of the Questions Involved" "must never
exceed one page and must always be on a separate page, without any other
matter appearing thereon." See Pa.R.A.P. 2116. Instantly the presentation
of the Statement violates Rule 2116 because it is split over two pages and is
preceded and followed by other material. See Appellant's Brief at 1-2.
When a party's brief fails to conform to the Rules of Appellate Procedure and
the defects are substantial, this Court may, in its discretion, quash or
dismiss the appeal pursuant to Rule 2101. See Pa.R.A.P. 2101. While the
defects in Appellant's brief are too numerous to set forth here, and could
warrant dismissal of the appeal, we decline to do so in this instance.
-7-
3. A13025/08
proof such that a jury could return a verdict in his favor. Failure
to adduce this evidence establishes that there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
Checchio v. Frankford Hospital-Torresdale Div., 717 A.2d 1058, 1059
(Pa. Super. 1998), appeal denied, 566 Pa. 633, 781 A.2d 137 (2001)
(quoting Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038,
1042 (1996)).
¶ 6 In its first issue, Appellant argues that the trial court improperly
considered parol evidence in interpreting the language of the First
Amendment to the Lease Agreement. Appellant contends that the trial court
erred when it considered any documents beyond the Lease Agreement and
the First Amendment. Specifically, in a two-pronged argument, Appellant
initially claims that the trial court incorrectly relied upon a "site plan," which
had been attached as "Exhibit A" to the First Amendment. Appellant
secondly contends that the trial court erred in considering the two Letter
Agreements entered into by the parties. We will address these issues in
turn.
$ 7 Appellant begins with a claim that the trial court erred in relying upon
the "site plan" marked as "Exhibit A" and attached to the First Amendment.
However, Appellant cites no legal authority to support the claim that a
document, referenced by a contract and attached to the contract as an
-8-
I A13025/08
exhibit, is actually parol evidence and should not have been considered by
the trial court in evaluating the language of the contract.
$ 8 "The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
pertinent authority." Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa.
Super. 2002); Pa.R.A.P. 2119(b). Failure to do so constitutes waiver of the
claim. See Estate of Haiko, 799 A.2d at 161 (deeming issue waived for
failure to include reasoned discussion of the law against which to adjudge
the appellant's claims). Accordingly, Appellant's issue on appeal is waived
because it has failed to set forth in its appellate brief any citation to legal
authority pertaining to this argument.
¶ 9 Appellant next argues that the trial court erred in failing to limit its
review of the contracts to the Lease Agreement and subsequent First
Amendment.2 Appellant contends that the trial court erred in considering
the intervening Letter Agreements in determining the intent of the parties
with regard to the Supermarket Restriction. Appellant asserts that the
Letter Agreements are incompetent under the parol evidence rule.
2 As discussed in more detail infra, the parties executed the following four
documents, in chronological order: the Lease Agreement, the First Letter
Agreement, the Second Letter Agreement, and the First Amendment.
-9-
]. A13025/08
¶ 10 In Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854
A.2d 425 (2004), our Supreme Court provided the following comprehensive
review of the parol evidence rule:
Where the parties, without any fraud or mistake,
have deliberately put their engagements in writing,
the law declares the writing to be not only the best,
but the only, evidence of their agreement. ...
[U]nless fraud, accident or mistake be averred, the
writing constitutes the agreement between the
parties, and its terms and agreements cannot be
added to nor subtracted from by parol evidence.
Therefore, for the parol evidence rule to apply, there must be a
writing that represents the "entire contract between the parties."
To determine whether or not a writing is the parties' entire
contract, the writing must be looked at and "if it appears to be a
contract complete within itself, couched in such terms as import
a complete legal obligation without any uncertainty as to the
object or extent of the [parties'] engagement, it is conclusively
presumed that [the writing represents] the whole engagement of
the parties . . . ." An integration clause which states that a
writing is meant to represent the parties' entire agreement is
also a clear sign that the writing is meant to be just that and
thereby expresses all of the parties' negotiations, conversations,
and agreements made prior to its execution.
Once a writing is determined to be the parties' entire
contract, the parol evidence rule applies and evidence of any
previous oral or written negotiations or agreements involving the
same subject matter as the contract is almost always
inadmissible to explain or vary the terms of the contract.
Id. at 497-498, 854 A.2d at 436-437 (citations omitted). "Only where a
contract's language is ambiguous may extrinsic or parol evidence be
considered to determine the intent of the parties." Ferrer v. Trustees of
-10-
3. A13025/08
the University of Pennsylvania, 573 Pa. 310, 339, 825 A.2d 591, 608
(2002) (citation omitted).
¶ 11 Moreover, we have long stated that "[w]here several instruments are
made as part of one transaction they will be read together, and each will be
construed with reference to the other; and this is so although the
instruments may have been executed at different times and do not in terms
refer to each other." Huege/ v. Mifflin Construction Co., 796 A.2d 350,
354-355 (Pa. Super. 2002) (quoting Neville v. Scott, 127 A.2d 755, 757
(Pa. Super. 1957)).
$ 12 Our review of the record reflects that the parties executed the
following four documents of significance: the Lease Agreement (dated
May 29, 1992), the First Letter Agreement (dated June 27, 2001), the
Second Letter Agreement (dated September 20, 2001), and the First
Amendment (dated September 9, 2003). Appellant would have us consider
only the Lease Agreement and the First Amendment in determining the
intent of the parties and ignore the intervening First and Second Letter
Agreements signed by the parties as parol evidence. However, upon review,
we conclude that the First Letter Agreement and the Second Letter
Agreement are not parol evidence.
$ 13 The Lease Agreement, although integrated at the time it was executed
in 1992, contains in its integration clause, a provision specifying that
-11-
3. A13025/08
modification of the Lease Agreement is permissible when done so in writing
that is executed by both parties. Lease Agreement, § 39.01. Thus, the
original Lease Agreement allows for written and signed modifications to its
provisions.
¶ 14 In June 2001, nine years after the inception of the Lease Agreement,
the parties executed the First Letter Agreement in response to Appellee
ceasing operation of the supermarket at the Shopping Center. The First
Letter Agreement demonstrates the following intent of the parties: Appellee
would be permitted to sublet a portion of its space and pay for physical
improvements, the restrictive covenant would be maintained, and the Wal-
Mart store would be permitted to expand to a ""Super Center" and would also
be permitted to sell groceries.3 Moreover, the First Letter Agreement
indicated that a subsequent modification of the Lease Agreement would be
3 The First Letter Agreement stated that Appellee intended to be legally
bound as follows in relation to the expansion of the Wal-Mart store:
2. [Appellee] will approve in writing (a) Wal-Mart's operation of
a supermarket, (b) the expansion of the Wal-Mart store into a
portion of the shopping center owned by [Appellant],
approximately as shown on the Sketch Plan attached hereto as
Schedule B. The result will be that the Wal-Mart store will be
expanded to contain approximately 200,000 square feet of
space, some of which, as determined by Wal-Mart, will be
devoted to supermarket type uses; and (c) the expansion of that
portion of the overall shopping center now owned by Wal-Mart.
First Letter Agreement, 6/27/01, at ¶ B.2.
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forthcoming. Specifically, the First Letter Agreement provides: "The Lease
will be amended so as to modify the provisions of Section 14.01 [relating to
Landlord's Covenants] thereof, as contemplated by item A.4 above
[pertaining to the Supermarket Restriction], but also to terminate Article 5
thereof - the Renewal Options - such that the Lease will absolutely
terminate and end on November 30, 2012, the date of expiration of the
original term of the Lease. . . ." First Letter Agreement, at ¶ B.4.
Accordingly, the First Letter Agreement contemplated that an amendment to
the Lease Agreement would be necessary.
$ 15 Three months later, the parties acted upon the First Letter Agreement
and entered into the Second Letter Agreement, which further addressed the
expansion of the Wal-Mart store. The Second Letter Agreement provided the
following:
1. Giant and Marmaxx hereby confirm and reconfirm that
they have no objections to, and hereby consent to and approve
(a) the conveyance of approximately 4.56 acres of land and
improvements thereon to Wal-Mart, all as approximately shown
in the shaded area on Exhibit A attached hereto, . . . (b) the
construction by Wal-Mart of an expansion to the existing Wal-
Mart store, the expansion to take place approximately within the
area crosshatched within the shaded area and (c) the operation
by Wal-Mart of its store, as so expanded, as a "Wal-mart
Supercenter" .. .
Second Letter Agreement, 9/20/01, at $ 1. Likewise, the Second Letter
Agreement anticipated that subsequent documents relative to the
Agreement would be necessary as evidenced by the following provision:
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3. Giant and Marmaxx will execute any other documents
reasonably required by [Appellant] and Wal-Mart to reaffirm and
evidence the foregoing agreements.
Id. at ¶ 3.
¶ 16 Two years later, after Appellee had subleased all of its space, the
parties executed the First Amendment, which summarizes the following: the
term of the lease, the permission to sublease, the Supermarket Restriction,
and the limited exclusion to the Supermarket Restriction. As noted
previously in this memorandum, the First Amendment does not contain an
independent integration clause which states that it is meant to represent the
parties' entire agreement or that it expresses all of the parties' negotiations,
conversations, and agreements made prior to its execution. Thus, it cannot
be said that the First Amendment represents the entire contract between the
parties, which would trigger the application of the parol evidence rule.4
4 We note that Appellant contends that there is an integration clause
contained in the Lease Agreement that has been incorporated by the First
Amendment. Specifically, the Lease Agreement contains the following
provision:
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
except by writing executed by both parties. .. .
Lease Agreement, § 39.01. Thus, the integration clause in the Lease
Agreement specifically discounts any oral or written statements made prior
to the execution of the Lease Agreement not contained in the Lease.
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¶ 17 Consequently, we are constrained to conclude that, although the four
written instruments in question may have been executed at different times
and do not in terms refer to each other, the First Letter Agreement, the
Second Letter Agreement, and the First Amendment constitute one
transaction. In summary, the record reflects that the Lease Agreement
provided for future written modifications. The First Letter Agreement, also in
writing, set forth the express agreements pertaining to modifications of the
Lease Agreement, referenced additional modifications in the future, and
contemplated a necessary amendment to the Lease Agreement. Similarly,
the Second Letter Agreement, again in writing, addressed modifications to
the Lease Agreement and implied that other written documents would be
forthcoming. Ultimately, the First Amendment, which does not contain an
independent integration clause, summarized and further memorialized the
The subsequently executed First Amendment contains the following
provision:
All terms and conditions of the Lease not inconsistent with this
Amendment shall remain in full force and unchanged hereby.
First Amendment to Lease Agreement, § 7.1. The above cited provision in
the First Amendment does nothing more than preserve the integration
clause of the Lease Agreement as it relates to oral and written statements
made prior to the Lease Agreement. Thus, the integration clause in the
Lease Agreement, remains in full force and precludes from consideration any
oral or written statements made prior to the execution of the Lease
Agreement. Section 7.1 of the First Amendment does not serve as an
integration clause for the subsequently signed First Amendment. Therefore,
Appellant's contrary claim lacks merit.
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written agreements previously reached by the parties. Accordingly, we
conclude it is proper for these written documents to be read together and
each construed with reference to the other. Therefore, Appellant's claim
that the First and Second Letter Agreements constitute parol evidence fails.
Thus, the trial court did not err in considering the documents together in
determining the intent of the parties and Appellant's contrary claim lacks
merit.5
$ 18 In Appellant's interrelated issues numbered two and three, Appellant
argues that the trial court incorrectly determined the intent of the parties in
applying the Supermarket Restriction. Basically, Appellant argues that the
trial court wrongly concluded that the only exception to the Supermarket
Restriction at issue was for the land occupied by Wal-Mart as specified in the
site plan attached to the First Amendment. Appellant asserts that this
interpretation nullifies the clear and unequivocal definition of the term "Wal-
Mart" as set forth in the First Amendment. Thus, we must consider whether
the trial court properly determined what the parties intended by their
inclusion in the First Amendment of "Wal-Mart, its successors or assigns" as
an exception to the Supermarket Restriction.
5 In addition, we note that the trial court stated it would have reached the
same conclusion had it "viewed only the 'First Amendment to Lease
Agreement' and the lease itself as the contract documents." See Trial Court
Opinion, 8/3/07, at 7 n.6. For this reason too, Appellant's claim is of no
moment.
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In Pennsylvania, lease agreements are governed by
contract law and general contract law principles. As such, when
the language of a lease is clear and unequivocal, its meaning will
be determined by its contents alone in ascertaining the intent of
the parties. Every contract imposes a duty of good faith and fair
dealing on the parties in the performance and the enforcement
of the contract.
Trizechahn Gateway, LLC v. Titus, 930 A.2d 524, 533-534 (Pa. Super.
2007) (citations omitted). Inasmuch as a lease must be construed according
to general principles of contract law, we are mindful that the primary
objective in construing a contract is to effectuate the intentions of the
parties. Id. at 537 (citing Seven Springs Farm v. Croker, 569 Pa. 202,
207, 801 A.2d 1212, 1215 (2002)).
¶ 19 Nonetheless, "[i]t is firmly settled that the intent of the parties to a
written contract is contained in the writing itself." Krizovensky v.
Krizovensky, 624 A.2d 638, 642 (Pa. Super. 1993), appeal denied, 536 Pa.
626, 637 A.2d 287 (1993). Accordingly, when the words of a contract are
clear and unambiguous, we are to determine what the parties intended by
looking only at the express language of the agreement. Id.
[W]here there is any doubt or ambiguity as to the meaning
of the covenants in a contract or the terms of a grant, they
should "receive a reasonable construction, and one that will
accord with the intention of the parties; and, in order to
ascertain their intention, the court must look at the
circumstances under which the grant was made." "It is the
intention of the parties which is the ultimate guide, and, in order
to ascertain that intention, the court may take into consideration
the surrounding circumstances, the situation of the parties, the
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objects they apparently have in view, and the nature of the
subject-matter of the agreement."
In re Estate of Quick, 588 Pa. 485, 491, 905 A.2d 471, 474-475 (2006)
(quoting Hindman v. Farren, 353 Pa. 33, 35, 44 A.2d 241, 242 (1945))
(emphasis omitted).
$ 20 In reaching its conclusion, the trial court stated the following:
Since both parties agree that the contract is clear and
unequivocal, we must determine the parties' intent from the
contract documents. We are satisfied that the contracting
parties intended only the portion of the Shopping Center
occupied by Wal-Mart, and referred to specifically in the prior
agreements, to be exempted from the Supermarket Restriction.
Otherwise[,] there would be no reason to identify the particular
parcel in the various contract documents, including the lease
amendment. Viewed in that context, the term "successors and
assigns" refers to only subsequent owners and lessors of the
Wal-Mart parcel identified in the documents. This is the only
logical interpretation of that language. To interpret it as
[Appellant] suggests would effectively nullify the Supermarket
Restriction. [Appellant] could lease any portion of the Shopping
Center to an entity selling groceries by simply using Wal-Mart as
a straw party. We are certain that this was not the intent of the
contracting parties. [FN]
[FN] This rationale applies even if we view only the
"First Amendment to Lease Agreement" and the
original [L]ease itself as the contract documents.
However, we are further satisfied that the contract
includes not only those documents, but also the
other documents quoted from above and/or referred
to in the "Background" section of the "First
Amendment to Lease Agreement."
Trial Court Opinion, 8/3/07, at 6-7.
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$ 21 We next review the documents to determine whether the trial court
reached a proper conclusion relating to the intent of the parties. Resolution
of this claim rests upon an interpretation and construction of the meaning of
the language used in the First Amendment. Accordingly, we will limit our
review to the language utilized by the parties in the First Amendment.
¶ 22 Our review of the record reflects that the First Amendment provides
the following provision regarding the Supermarket Restriction:
4. Supermarket Restriction. Landlord and Tenant agree that,
effective upon the execution of the Marmaxx Sublease on or
about September 20, 2001, Section 14.01 of the Lease shall
have been amended to provide that, whether or not the Demised
Premises is operated as a supermarket or for the sale of food,
the Supermarket Restriction shall remain in full force and effect
throughout the original term of the Lease ...
First Amendment, ¶ 4.
$ 23 The First Amendment further provides the following exception to the
Supermarket Restriction:
5. Wal-Mart. Notwithstanding anything to the contrary
contained herein or in the Lease, the Supermarket Restriction
shall not apply to Wal-Mart, its successors or assigns.
First Amendment, ¶ 5.
¶ 24 In addition, the First Amendment provides a relevant "background"
statement, which essentially defines the term "Wal-Mart" as follows:
G. Wal-Mart Stores, Inc. ("Wal-Mart") is the fee owner of certain
real property that comprises a portion of the Shopping Center
(the "'Wal-Mart Property") as depicted on Exhibit "A" hereto.
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J. A13025/08
First Amendment, ¶ G. Thus, the unambiguous language of the First
Amendment limits the definition of the term "Wal-Mart" to "the fee owner" of
the shopping center property depicted on Exhibit A. Accordingly, the First
Amendment's exception to the Supermarket Restriction is limited to the "fee
owner" of the parcel of property depicted on Exhibit A. As such, it is
apparent by the express language of the First Amendment that the parties
intended to contain the application of the exception to the Supermarket
Restriction to the land then owned by Wal-Mart, as indicated in the attached
Exhibit A. Therefore, we cannot conclude that the trial court erred in
applying the exception to the Supermarket Restriction only to the property
depicted on Exhibit A. Accordingly, Appellant's claim that the trial court
erred in this result lacks merit.
¶ 25 Appellant last argues that the trial court improperly reformed the
agreement of the parties. Basically, Appellant contends that the trial court
reformed paragraph 5 of the First Amendment by substituting the term
"Wal-Mart" with "Wal-Mart Property." Appellant contends there is no legal
basis for the reformation.
¶ 26 It has long been the law that courts of equity have the power to
reform a written instrument where there has been a showing of fraud,
accident or mistake. Regions Mortgage, Inc, v. Muth/er, 585 Pa. 464,
467, 889 A.2d 391 41 (2005) (quoting Kutsenkow v. Kutsenkow, 414 Pa.
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1. A13025/08
610, 612, 202 A.2d 68, 68-69 (1964)). However, this Court has stated that
the process of a court defining the scope of a contract is actually
construction and not reformation. See Powe// v. Powell, 367 A.2d 312,
319 n.4 (Pa. Super. 1976) (noting that "delineating the scope of a general
release is construction, not reformation").
¶ 27 Our review of the record reflects that the trial court, sitting as a court
in equity, was requested to determine the scope of the exception to the
Supermarket Restriction in this matter. In reaching its determination, the
trial court interpreted the First Amendment and concluded that the parties
intended to limit the application of the exception to the Supermarket
Restriction. Such a construction by the trial court in determining the scope
of the exception to the Supermarket Exclusion falls short of the alleged
improper contract reformation claimed by Appellant. Thus, Appellant's claim
lacks merit.
¶ 28 In conclusion, we are satisfied that there are no genuine issues of
material fact in this matter and that Appellee is entitled to judgment as a
matter of law. Therefore, we conclude that the trial court neither committed
an error of law nor abused its discretion in granting Appellee's Motion for
summary judgment. Accordingly, we affirm the trial court's order granting
summary judgment for Appellee.
¶ 29 Order affirmed.
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Judgment Entered:
c
e uty Prothonotary W
October 17, 2008
Date:
-22-
... THE 1 I _ j F `?
T •
• CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
SUPERIOR COURT OF PENNSYLVANIA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following rriatter:
Giant Food Stores LLC
vs.
The Silver Spring Development LP
2006-3688 Civil Term
1476 MDA 2007
• The documents comprising the record have been numbered from No.l to 249, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 10-18-2007 .
-~'
Curtis Long, Prothonotary
Regina Lebo
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date Signature & Title
~~
~,,,
RECORD FILED Its ~~Ipr~`~
i ,~:, ~ ~ ~L~~1
~~~~~'~