UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

Richmond Division 

In re: Chapter 11 

Toys “R” Us Property Company I, Case No. 18-31429-KLP 

 LLC, et al., Jointly Administered 

 Debtors. 

MEMORANDUM OPINION 

 Before the Court is the objection of Upper Glen Street Associates, L.L.C., to 

the proposed assignment of a lease between it and Toys “R” Us NY Limited 

Partnership, predecessor-in-interest to Toys “R” Us Property Company I, LLC, to 

Aldi, Inc. For the reasons set forth herein, the Court will overrule the objection. 

FINDINGS OF FACT 

The Toys Lease. On July 18, 1996, Albany Public Markets entered into a 

lease agreement (the “Toys Lease”) with Toys “R” Us NY Limited Partnership, 

predecessor-in-interest to Toys “R” Us Property Company I, LLC, et al. (the 

“Debtors”)1 for premises (the “Premises”) located in a shopping area in Queensbury, 

New York (the “Toys Parcel”).2 A Toys “R” Us retail store was operated on the 

Premises. Article V of the Toys Lease, which is attached as an exhibit to the facts 



1 An order was entered on April 24, 2018, directing the procedural consolidation and joint 

administration only of the chapter 11 cases of: Toys “R” Us Property Company I, LLC, Case 

No. 18-31429-KLP; MAP Real Estate, LLC, Case No. 18-31430-KLP; TRU 2005 RE I, LLC, 

Case No. 18-31431-KLP TRU 2005 RE II Trust, Case No. 18-31432-KLP; Wayne Real 

Estate Company, LLC, Case No. 18-31433-KLP, and Wayne Real Estate Holding Company, 

LLC, Case No. 18-31428-KLP. Dkt. 94. 

2 The Premises are designated as Store 6367 by the Debtors. From a map of the Toys Parcel 

attached as Exhibit 2 to the Declaration of Mike Matlat, Dkt. 871, it appears that there is 

at most one other building located on the Toys Parcel; that building appears to be currently 

in use as a bank. 

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stipulated by the parties,3 is entitled “Use,” and provides that the Premises may be 

used for “any lawful use or purpose, except a bank or such similar use restricted by 

the existing lease . . . .” The Court has been pointed to no other relevant restriction 

in the Toys Lease. The Toys Lease requires the tenant (“Toys”)4 to pay a common 

area expense contribution “equal to the Common Area Expense for all Common 

Areas on the Tenant’s Parcel.” Toys Lease, § 3.04(a). The Toys Lease also provides 

that “Tenant shall have the right at any time and from time to time during the 

Lease Term to assign this Lease or sublet the Demised Premises, or any part or 

parts thereof.” No restriction on the right to assign is contained in the Toys Lease. 

 Among the other terms of the Toys Lease is the requirement that Toys be 

responsible for its own utilities services. Toys was granted a “non-exclusive 

easement and right of use . . . of the common areas,” defined as: 

those portions of the Center which are intended for, or are available for 

common use by any and all of the owners, tenants or users of land and/or 

buildings within the Center and the business invitees of such owners, tenants 

or used, including, without limitation, the parking areas, lanes, drive and 

driveways, entrances, all means of ingress and/or egress, curb cuts, roadways, 

passageways, sidewalks, landscaped areas, lighting facilities and equipment 

located in the Center, as well as the easement to the Utility Parcel.5 

The common areas are to be maintained by the landlord. 

 Section 29.08 of the Toys Lease provides in part that: 

Neither Landlord nor Tenant shall be in default under any provision of 

this Lease by virtue of either (x) any action taken by either Landlord or 

Tenant pursuant to any other lease or other agreement between 

Landlord and Tenant, or (y) any default or alleged default of either 



3 Dkt. 884. 

4 The Court uses the generic “Toys” to encompass the various non-landlord parties to the 

Toys Lease. 

5 Section 27.01, Toys Lease. 

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Landlord or Tenant under any other lease or other agreement between 

Landlord and Tenant, and . . . no rights or obligations of either 

Landlord or Tenant under this Lease shall be expanded, diminished or 

in any way modified by any rights or obligations of either Landlord or 

Tenant under any other lease or other agreement between Landlord 

and Tenant. Any references in this Section to the parties or to 

Landlord or Tenant shall be deemed to include any parent, subsidiary, 

affiliate, controlled or controlling entity thereof. 

The Toys Lease was amended on July 15, 2015, with all of the original terms not 

specifically modified remaining in effect.6

The Price Rite Lease. On August 1, 2002, PRRC, Inc. (“Price Rite”) entered 

into a lease agreement (the “Price Rite Lease”) with John J. Nigro, predecessor-ininterest to Upper Glen Street Associates, L.L.C., (“Glen Street”) for premises located 

on Route 9 in Queensbury, New York, immediately adjacent to and contiguous with 

the Toys Parcel (the “Price Rite Parcel”). Price Rite operates a Price Rite discount 

grocery store in a shopping center known as Price Rite Plaza, located on the Price 

Rite Parcel. In the Price Rite Lease, Price Rite was granted an exclusive use 

provision (the “Exclusivity Provision”): 

Except as specifically provided . . . below, Landlord covenants and 

agrees that during the Initial Term and any Renewal Term, it shall not 

permit any occupant or occupants of the Shopping Center to sell, and 

Tenant shall have the exclusive right in the Shopping Center to sell, 

for off-premises consumption (whether fresh, frozen, canned, bottled, 

packaged, or otherwise): fish, meat, produce, poultry, baked goods, 

groceries . . . , dairy and egg products, delicatessen foods and 

appetizers. Landlord agrees to enforce this exclusive right against 

other tenants in the Shopping Center using all reasonable legal means. 

Landlord covenants and agrees that neither it nor any of its principal 

owners or stockholders or directors or officers of their successor or 



6 The 2015 amendment was executed by Upper Glen Street Associates, L.L.C., as the 

successor-in-interest to Albany Public Markets, Inc. 

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assignees shall lease, rent or permit to be occupied, as a hyper-market, 

supermarket, mini-supermarket, convenience food store, club store 

commonly known as warehouse clubs, membership clubs, and/or 

wholesale clubs (such as, by means of example, but not limitation, BJ’s, 

Price Club, Sam’s, Super K Mart, Super Wal-Mart, COSTCO, 

Wholesale Depot and Carrefour), for the sale of any of the abovedescribed exclusive granted to Tenant under this Lease, or any 

combination of the foregoing, any premises in the Shopping Center or 

in any other premises owned, leases, controlled or occupied by 

Landlord, or their affiliates within a radius of one (1) mile from the 

Shopping Center. 

 The Toys Parcel and the Price Rite Parcel (the “Parcels”) share a common 

right of ingress and egress to Route 9. The Parcels also have a shared parking area 

on property owned by Niagara Mohawk Power Corp. (“Niagara Mohawk”), for which 

the owners of the Toys Parcel and the Price Rite Parcel share expenses. That area 

was designated in the Toys Lease as the Utility Parcel. The Toys Lease states that 

the Utility Parcel, the Toys Parcel and the Price Rite Parcel were subject to an 

operating agreement entered into in 1972. The Toys Lease requires Toys to pay 

50% of any payments due to Niagara Mohawk for the “use and benefit of” the Utility 

Parcel. The Toys Premises also have a separate parking area apart from the Utility 

Parcel.7

In 2012, Glen Street purchased the Toys Parcel, subject to the Toys Lease. As 

a result, both the Toys Parcel and the Price Rite Parcel, which the parties have 

stipulated are “immediately adjacent” to each other, are owned by Glen Street. 

There is no evidence that the Debtors were involved in Glen Street’s purchase of the 

Toys Parcel or the Toys Lease. No party has claimed that the Exclusivity Provision 



7 Stipulation, Ex. C. Dkt. 884. 

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above has been formally incorporated into the Toys Lease, and the two-page 2015 

amendment to the Toys Lease makes no reference to the Price Rite Lease or its 

terms.8 

The assumption and assignment. The Debtors filed their chapter 11 cases on 

March 20, 2018. On August 24, 2018, they filed the “Propco I Debtors’ Motion for 

Entry of an Order (I) Establishing Bidding Procedures for the Propco I Leases, (II) 

Approving the Sale of the Propco I Leases, and (III) Granting Related Relief”9

which, among other things, requested the approval of the sale and assumption and 

assignment of certain unexpired leases and of proposed auction and bidding 

procedures for soliciting and selecting the best offers for various of the Debtors’ 

leases. On September 13, 2018, the Court entered the “Order (I) Establishing 

Bidding Procedures for the Propco I Leases and (II) Granting Related Relief,”10

approving the Debtors’ modified auction and bidding procedures relating to their 

revised list of leases attached thereto (the “Auction Leases”). The Toys Lease was 

one of the Auction Leases. 

On September 27, 2018, the Debtors conducted an auction with respect to the 

Auction Leases, including the Toys Lease (the “Auction”).11 After the Auction, the 

Debtors designated Aldi, Inc. (“Aldi”) as the successful bidder for the Toys Lease 

and Ocean State Job Lot Stores of NY, Inc. as the back-up bidder.12 Aldi bid 



8 The two-page 2015 amendment deals primarily with rent, brokers, and the term of the 

Toys Lease. 

9 Dkt. 455. 

10 Dkt. 519. 

11 Dkt. 623. 

12 Id. 

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$3,300,000 for the Toys Lease, and the back-up bid was $2,250,000.13 On October 5, 

2018, Glen Street filed the “Objection of Upper Glen Street Associates, LLC to the 

Proposed Assignment of Lease, to Aldi, Inc.” (the “Objection”).14 

JURISDICTION 

 Pursuant to 28 U.S.C. §§ 157(a) and 1334(b) and the general order of 

reference for the U.S. District Court for the Eastern District of Virginia dated 

August 15, 1984, this Court has subject matter jurisdiction over the Debtors’ 

bankruptcy cases and this contested matter relating to the Debtors’ proposed 

assumption and assignment of the Toys Lease. This is a core proceeding pursuant 

to 11 U.S.C. § 157(b)(2)(A),(N) and (O). Venue is proper pursuant to 28 U.S.C. 

§§ 1408 and 1409. 

DISCUSSION 

In the Objection, Glen Street raised several theories to support its contention 

that the assignment of the Toys Lease to Aldi should not be approved. At a hearing 

on the Objection held on December 11, 2018, the parties announced that the only 

issue remaining unresolved between the parties and for which they seek a ruling 

from the Court is whether the Exclusivity Provision in the Price Rite Lease 

prevents the assumption and assignment of the Toys Lease to Aldi.15 At the 

hearing, Upper Glen put forward its concerns as to tenant mix, which the Court will 

address below. 



13 Dkt. 884, ¶ 18. 

14 Dkt. 615, redocketed at Dkt. 657. 

15 Tr. 86:4-7. 

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Assumptions and assignments of leases are governed by § 365 of the 

Bankruptcy Code, 11 U.S.C. § 365.16 Section 365(a) provides that a trustee, which 

includes a debtor-in-possession in a chapter 11 case,17 may “assume or reject any 

executory contract or unexpired lease of the debtor.” Id. However, if there has been 

a default in an executory contract or unexpired lease, a trustee or debtor in 

possession may not assume that contract unless it first: 

 (A) cures, or provides adequate assurance that the trustee will 

promptly cure, such default other than a default that is a breach of a 

provision relating to the satisfaction of any provision (other than a 

penalty rate or penalty provision) relating to a default arising from any 

failure to perform nonmonetary obligations under an unexpired lease 

of real property, if it is impossible for the trustee to cure such default 

by performing nonmonetary acts at and after the time of assumption, 

except that if such default arises from a failure to operate in 

accordance with a nonresidential real property lease, then such default 

shall be cured by performance at and after the time of assumption in 

accordance with such lease, and pecuniary losses resulting from such 

default shall be compensated in accordance with the provisions of this 

paragraph; 

(B) compensates, or provides adequate assurance that the 

trustee will promptly compensate, a party other than the debtor to 

such contract or lease, for any actual pecuniary loss to such party 

resulting from such default; and 

(C) provides adequate assurance of future performance under 

such contract or lease. 

11 U.S.C. § 365(b)(1). 

Section 365(f) provides that an executory contract or unexpired lease may be 

assigned if it is first properly assumed pursuant to § 365(b) and if the trustee or 

debtor-in-possession provides adequate assurance of future performance by the 



16 All subsequent references to § 365 or any subsection thereof are to 11 U.S.C. § 365. 

17 11 U.S.C. § 1107(a). 

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proposed assignee.18 Section 365(f)(3) gives a trustee or debtor in possession 

valuable additional rights when assigning executory contracts or unexpired leases, 

allowing their assignment “notwithstanding a provision in an executory contract or 

unexpired lease of the debtor, or in applicable law, that prohibits, restricts, or 

conditions the assignment of such contract or lease.”19 

 The rights of the trustee or debtor-in-possession to assume and assign are 

limited if the lease at issue covers property that is located in a shopping center. In 

that instance, “adequate assurance of future performance” for purposes of both 

§ 365(b)(1) and § 365(f) is defined in § 365(b)(3): 

(3) For the purposes of paragraph (1) of this subsection and paragraph 

(2)(B) of subsection (f), adequate assurance of future performance of a 

lease of real property in a shopping center includes adequate 

assurance-- 

(A) of the source of rent and other consideration due 

under such lease, and in the case of an assignment, that the 

financial condition and operating performance of the proposed 

assignee and its guarantors, if any, shall be similar to the 

financial condition and operating performance of the debtor and 



18Section 365(f) provides that: 

 (1) Except as provided in subsections (b) and (c) of this section, notwithstanding a provision 

in an executory contract or unexpired lease of the debtor, or in applicable law, that 

prohibits, restricts, or conditions the assignment of such contract or lease, the trustee may 

assign such contract or lease under paragraph (2) of this subsection. 

(2) The trustee may assign an executory contract or unexpired lease of the debtor only if-- 

(A) the trustee assumes such contract or lease in accordance with the provisions of this 

section; and 

(B) adequate assurance of future performance by the assignee of such contract or lease is 

provided, whether or not there has been a default in such contract or lease. 

(3) Notwithstanding a provision in an executory contract or unexpired lease of the debtor, 

or in applicable law that terminates or modifies, or permits a party other than the debtor to 

terminate or modify, such contract or lease or a right or obligation under such contract or 

lease on account of an assignment of such contract or lease, such contract, lease, right, or 

obligation may not be terminated or modified under such provision because of the 

assumption or assignment of such contract or lease by the trustee. 

11 U.S.C. § 365(f). 

19 Id. 

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its guarantors, if any, as of the time the debtor became the 

lessee under the lease; 

(B) that any percentage rent due under such lease will not 

decline substantially; 

(C) that assumption or assignment of such lease is subject 

to all the provisions thereof, including (but not limited to) 

provisions such as a radius, location, use, or exclusivity 

provision, and will not breach any such provision contained in 

any other lease, financing agreement, or master agreement 

relating to such shopping center; and 

(D) that assumption or assignment of such lease will not 

disrupt any tenant mix or balance in such shopping center. 

Glen Street argues that § 365(b)(3)(C) and § 365(b)(3)(D) prevent the 

assignment of the Toys Lease to Aldi because (1) the Exclusivity Provision prohibits 

the assignment of the Toys Lease to Aldi and (2) the assignment of the Toys Lease 

to Aldi will disrupt the tenant mix in what Glen Street claims is a shopping center. 

If Glen Street is correct in its assertion that the combined Toys Parcel and the Price 

Rite Parcel constitute a shopping center, then the Court must determine whether 

the requirements of § 365(b)(3) have been satisfied. 

The Bankruptcy Code does not define “shopping center.” The court in In re 

Ames Department Stores, Inc., 348 B.R. 91, 95 (Bankr. S.D.N.Y. 2006), noted that a 

multi-factor test is regularly used to determine whether premises constitute a 

“shopping center” under § 365(b)(3). Factors considered include: 

1. A combination of leases; 

2. All leases held by a single landlord; 

3. All tenants engaged in the commercial retail distribution of 

goods; 

4. The presence of a common parking area; 

5. The purposeful development of the premises as a shopping 

center; 

6. The existence of a master lease; 

7. The existence of fixed hours during which all stores are open; 

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8. The existence of joint advertising; 

9. Contractual interdependence of the tenants as evidenced by 

restrictive use provisions in their leases; 

10. The existence of percentage rent provisions in the leases; 

11. The right of the tenants to terminate their leases if the 

anchor tenant terminates its lease; 

12. Joint participation by the tenants in trash removal and other 

maintenance; 

13. The existence of a tenant mix; and 

14. The contiguity of the stores. 

 

Id., citing In re Joshua Slocum Ltd., 922 F.2d 1081, 1087-88 (3d Cir. 1990). 

The burden is on Glen Street to prove that the lease the Propco I Debtors 

seek to assume and assign is located in a shopping center. In re Ames Dep’t. 

Stores, Inc., 121 B.R. 160, 163 (Bankr. S.D.N.Y. 1990). See also In re 

Goldblatt Bros., Inc., 766 F.2d 1136, 1141 (7th Cir. 1985) (“We agree with the 

courts below that the evidence presented by [the landlord] was insufficient to 

demonstrate that Goldblatt was a tenant in a shopping center.”) 

 Of the fourteen factors listed in Joshua Slocum, the Court finds that 

several of them are facially satisfied by the facts of this case. In particular, 

there is a combination of leases, the leases are held by a common landlord, 

the tenants are engaged in the commercial retail distribution of goods, there 

is a common parking area and access road, and the stores are contiguous. 

However, with respect to those elements, there are some particular facts that 

should be noted. 

While the Toys Lease and the Price Rite Lease are now both held by 

Glen Street, the leases were not held by the same entity until 2012, when the 

Toys Lease and Toys Parcel were acquired by Glen Street. The Toys Lease 

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was entered into between Toys and Albany Public Markets in 1996. The Price 

Rite Lease, in contrast, was entered into between Price Rite and John Nigro 

(“Nigro”), the predecessor-in-interest to Glen Street,20 in 2002. 

 As to the existence of a common parking area, the Toys Parcel and the 

Price Rite Parcel have had a common parking area since the inception of the 

Price Rite Lease in 2002, ten years before Glen Street acquired the Toys 

Parcel and Toys Lease. The obligations of Toys and Price Rite with respect 

thereto did not change when Glen Street acquired the Toys Parcel and Toys 

Lease. While the existence of a common parking area might be indicative of 

an intent to create a shopping center, here such intent cannot be inferred, as 

the common parking area and access road predated the common ownership. 

Further, there is separate parking located in front of the subject store that is 

not a part of the Utility Parcel.21 

 Based upon the evidence presented, the Court cannot find that there 

has been a purposeful development of the Parcels as a shopping center. 

Rather, the owner of one shopping center purchased real estate that adjoined 

a shared parking area but did nothing to develop the adjoining parcels as a 

cohesive single unit. Elements that might indicate a purposeful development 

are a master lease, fixed hours during which all stores are required to 



20 In the Nigro Affidavit, Nigro states that he is “the President of Nigro Companies, the 

Managing Agent of Upper Glen Street Associates, L.L.C.. . ., successor-in-interest to Albany 

Public Markets Inc. . . ., Landlord under a lease dated July 1996 . . . with TRU 2005 RE I, 

LLC . . . successor-in-interest to Toys “R” Us – NY Limited Partnership.” 

21 Under the terms of the Toys Lease, Toys was to pay a “common area expense 

contribution” composed of its pro rata share of the Utility Parcel costs and “the Common 

Area Expense for all Common Areas on the Tenant’s Parcel.” Toys Lease, § 3.04(a). 

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operate, joint advertising, or the presence of an anchor tenant whose 

departure would give the other tenants the right to terminate their leases. 

See Ames, 121 B.R. at 164-65; Goldblatt, at 766 F.2d 1141. Those elements, 

four factors in the Joshua Slocum test that have not been proven by Glen 

Street, have not been satisfied with respect to the combined Parcels. 

 Glen Street points to the case of In re Sun TV & Appliances, Inc., 234 

B.R. 356 (Bankr. D. Del. 1999), in which the court found that the premises at 

issue were in fact part of a shopping center despite the fact that all of the 

tracts in the shopping center were not acquired at once. However, that case 

is factually distinguishable from the present case. In Sun, the landlord put 

on evidence that its gradual acquisition of the premises was part of a 

“purposeful development” that was planned as “an ongoing process with 

several phases.” Id. at 362-63. The court concluded that “the Landlord’s 

plans to eventually develop the Sun parcel, albeit prospective in nature, were 

a factor in the earliest phases of development dating back 20 years. . . .” Id. at 

363. Here, Glen Street has given the Court no evidence of such a plan. 

 In short, after analyzing the evidence presented by Glen Street, the 

Court cannot conclude that the acquisition of the Toys Lease and the Toys 

Parcel by Glen Street created a shopping center of which the Toys Parcel was 

a part. Despite the existence of the common parking area and access road, 

which the Parcels had been sharing for years prior to Glen Street’s 

acquisition of the Toys Parcel, there is nothing to show that the Toys Parcel 

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and the Price Rite Parcel constitute a shopping center. Other than the 

parties’ stipulated evidence, the only evidence proffered by Glen Street was 

an affidavit from Nigro (the “Nigro Affidavit”), in which he raises the concern 

that an assignment to Aldi (1) might cause Glen Street to be in violation of 

the Exclusivity Provision and (2) will cause there to be “two discount grocers 

within yards of one another.”22 This does not sustain the imposition of the 

“shopping center” label, which should be strictly construed,23 as it limits the 

rights of a debtor to dispose of property of the estate. 

 Having determined that the Toys Parcel is not part of a shopping 

center, the Court now turns to the argument of Glen Street that the 

assignment of the Toys Lease to Aldi must not be allowed because it would 

adversely affect the tenant mix. This argument fails. Tenant mix is an 

appropriate factor to consider only when the subject parcel is located in a 

shopping center. This is not a shopping center, and therefore concerns as to 

tenant mix are not germane. 

Regardless, even if the Court were to find that the Toys Parcel is 

located in a shopping center, Glen Street’s stated concerns as to tenant mix 

do not prevent the assignment of the Toys Lease to Aldi. The Court has 

recently held in In re Toys “R” Us Property Company I, Inc., No. 18-31429, 

2019 WL 548643 (Bankr. E.D. Va. Feb. 11, 2019) (“Market Plaza”), that “[i]n 

order to invoke the protection of § 365(b)(3)(D), a lessor must establish that 



22 Dkt. 657. 

23 3 Collier on Bankruptcy ¶ 365.06[5] (Richard Levin & Henry J. Sommer eds., 16th ed.). 

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there was an intended tenant mix and that the mix was part of the 

bargained-for-exchange of the debtor's and other tenants' leases.” Id. at *6 

(quoting Lasalle Nat'l Trust, N.A. v. Trak Auto Corp., 288 B.R. 114, 125 (E.D. 

Va. 2003), rev'd on other grounds, Trak Auto Corp. v. W. Town Ctr. LLC (In re 

Trak Auto Corp.), 367 F.3d 237 (4th Cir. 2004)). The Court has been given 

scant evidence, contractual or otherwise, to show that Glen Street has sought 

to maintain or develop a certain tenant mix with respect to the Toys and 

Price Rite Parcels. Nigro states in his affidavit that adding Aldi as a tenant 

in the Toys Parcel would create two discount grocers within yards of one 

another and create an “unfavorable imbalance in the tenant mix of the 

combined Price Rite Plaza and Toys R Us. Parcel.”24 However, Glen Street 

has not put forth any evidence other than the Nigro Affidavit and the two 

leases themselves to substantiate that claim. As pointed out above in the 

shopping center analysis, there is no operating agreement, no master lease, 

and no joint advertising that would evidence any master plan for 

development of the stores or to maintain any particular tenant mix. In 

addition, there is nothing in the Toys Lease that would evidence such an 

intention. For the Court to hold that a landlord’s stated concern as to tenant 

mix, without more, is sufficient to prevent a debtor’s assignment of a lease 

would be to give absolute veto power to any landlord whose lease a debtor 

seeks to assume and assign. 



24 Dkt. 657. 

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 In its objection, Glen Street seeks, in essence, to prevent the 

assignment by importing the Exclusivity Provision from the 2002 Price Rite 

Lease into the 1996 Toys Lease and the 2015 amendment thereto. It argues 

that if the assignment of the Toys Lease to Aldi is allowed, Glen Street may 

be in breach of the Exclusivity Provision and thereby liable to Price Rite. 

However, there is no evidence that the Exclusivity Provision has been 

incorporated into the Toys Lease in any way or that the assignment to Aldi 

would actually be a breach of that provision. The Court has recently rejected 

this approach in Market Plaza, stating that “[t]he burden is on [the landlord] 

to establish the existence of an intended tenant mix, and that requires more 

than simply demonstrating that it has provided each of its tenants with 

exclusivity protections.” 2019 WL 548643, at *6. 

Glen Street also argues that the Court must weigh the benefit to the 

Debtors against the harm to the landlord. Glen Street cites the Court’s prior 

decision in In re Toys “R” Us, Inc., No. 17-34665-KLP, 2018 WL 2676680 

(Bankr. E.D. Va. May 31, 2018) (the “Paramus opinion”) in support of this 

position. However, in that case, the Court was faced with a situation in 

which the debtors sought utilize the provisions of § 365(f) to assign a debtor’s 

lease free and clear of a use restriction contained therein. In determining 

that the debtors could make the assignment free and clear of the use 

restriction, the Court balanced the equities. In this case, the parties have 

stipulated that the only issue before the Court is whether the Exclusivity 

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Provision of the Price Rite Lease prohibits the assignment of the Toys Lease 

to Aldi. The parties have not asked the Court to address the effect of any 

provisions contained in the Toys Lease, thus making the balancing approach 

in the Paramus Opinion inapplicable. 

 The Court, having found that the Toys Parcel is not part of the 

shopping center, and having further found that even if the Court were to 

consider the issue of tenant mix, Glen Street has not carried its burden 

relative thereto, the Objection will be overruled and the assumption and 

assignment of the Toys Lease to Aldi will be approved. 

 A separate order will be issued. 

Signed: March 5, 2019 /s/ Keith L. Phillips 

United States Bankruptcy Judge 

Copies: 

Michael A. Condyles 

Peter J. Barrett 

Jeremy S. Williams 

Kutak Rock LLP 

901 East Byrd Street, Suite 1000 

Richmond, VA 23219 

Edward O. Sassower, P.C. 

Joshua A. Sussberg, P.C. 

Emily E. Geier 

Kirkland & Ellis LLP 

601 Lexington Avenue 

New York, NY 10022 

Entered on Docket: March 5, 2019

Case 18-31429-KLP Doc 1281 Filed 03/05/19 Entered 03/05/19 16:24:37 Desc Main

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17 

James H.M. Sprayregen, P.C. 

Anup Sathy, P.C. 

Chad J. Husnick, P.C. 

Scott Lerner 

Asif Attarwala 

Kirkland & Ellis LLP 

300 North LaSalle 

Chicago, IL 60654 

Augustus C. Epps, Jr. 

Michael D. Mueller 

Jennifer M. McLemore 

Christian & Barton, LLP 

909 East Main Street, Suite 1200 

Richmond, VA 23219-3095 

Joann Sternheimer 

Deily & Glastetter, LLP 

8 Southwoods Blvd., Suite 207 

Albany, NY 12211 

Peter M. Pearl 

Spilman Thomas & Battle, PLLC 

P O Box 90 

Roanoke, VA 24002-0090 

James E. Rossow, Jr. 

Rubin & Levin, P.C. 

135 N. Pennsylvania Street, Suite 1400 

Indianapolis, IN 46204 

Case 18-31429-KLP Doc 1281 Filed 03/05/19 Entered 03/05/19 16:24:37 Desc Main

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