HomeMy WebLinkAbout10-5681IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED ) CIVIL DIVISION
PARTNERSHIP, )
No. 10 - 5.8, Cl v I l <P?f"I1
Plaintiff, )
V. )
DAVENPORT'S ITALIAN OVEN, INC., ca !R
Defendant. ) rn?
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CONFESSION OF JUDGMENT FOR MONEY
Pursuant to the authority contained in the Warrant of Attorney, the original or a copy of
which is attached to the Complaint filed in this action, I, Darlene M. Nowak, Esq., appear for the
Defendant and confess judgment in favor of Plaintiff and against Defendant for money as
follows:
Amount due through 8/1/10 (Ex. 2) $156,927.69
Attorneys' fees for enforcement and collection (5%) $ 7,846.38
provided under § 16.02 of the Lease
TOTAL $164,774.07
Dated: August 24, 2010
(Aliorney'
or Defendant
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
Plaintiff,
V.
DAVENPORT'S ITALIAN OVEN, INC.,
Defendant.
CIVIL DIVISION
No.
COMPLAINT IN CONFESSION OF
JUDGMENT FOR MONEY
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
Pa. I.D. No. 43523
Darlene M. Nowak
PA ID No. 37093
MARCUS & SHAPIRA LLP
Firm No. 145
One Oxford Centre, 35 b Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
CIVIL DIVISION
Plaintiff,
V.
DAVENPORT'S ITALIAN OVEN, INC.,
Defendant.
No.
COMPLAINT IN CONFESSION OF JUDGMENT
FOR MONEY
1. Plaintiff, PR Capital City Limited Partnership, is a Pennsylvania limited
partnership, with an address of c/o PREIT Services, LLC, 200 South Broad Street, Third Floor,
Philadelphia, PA 19102. PR Capital City Limited Partnership is the owner of the Capital City
Mall in Camp Hill, Pennsylvania.
2. Defendant Davenport's Italian Oven, Inc. is a corporation doing business in
Pennsylvania. Defendant's last known address is 5220 Simpson Ferry Road, Mechanicsburg,
Pennsylvania 17050.
3. The original instrument evidencing the obligation on which judgment is herein
confessed, or a photostatic copy or like reproduction showing the signatures of Defendant which
is a true and correct reproduction of the original, is attached hereto and marked as Exhibit 1, and
is incorporated herein by reference. The instrument is a Lease dated July 2, 2008 (the "Lease").
Defendant is the Tenant under the Lease, and as noted above, Plaintiff is the Landlord under the
Lease. A confession for money judgment is warranted by Section 16.02(6) of the Lease. A First
Amendment of Lease and Rent Restructuring Agreement was executed on August 26, 2009, but
Defendant defaulted thereon by not making the required payments on it and according to its
terms the original Lease is in effect.
4. This Lease has not been assigned.
5. Plaintiff avers that judgment on the Lease is not being entered by confession
against a natural person in connection with a consumer credit transaction. The underlying Lease
of real property at Capital City Mall, Camp Hill, Pennsylvania, was made as a commercial
transaction.
6. Judgment has not been entered on the Lease in this or any other jurisdiction.
7. Section 16.01(a) of the Lease provides that the following shall be deemed an
"Event of Default": "the failure by the Tenant to pay Minimum Rent and/or Percentage Rent
and/or Additional Rent or any installment or year-end adjustment if such failure continues for ten
(10) days after written notice thereof by Landlord to Tenant."
8. Plaintiff avers that Section 16.02(b) of the Lease authorizes the entry of Judgment
for money after an Event of Default thereon. An Event of Default has occurred under the Lease
in that Defendants have failed to make payment in full of rent and other charges which were due
for the months of January 2009 through August 2010. Plaintiff gave written notice of the failure
to pay on June 21, 2010 and more than ten days have passed after Defendant was sent notice of
its failure to pay without making the missing payments. (Exh. 2).
9. The itemization of the amount presently due under the Lease and without waiver
of future damages is as follows:
Amount due through 8/1/10 (Ex. 3) $156,927.69
Attorneys' fees for enforcement and collection (5%) $ 7.846.38
provided under § 16.02 of the Lease
TOTAL $164,774.07
WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the Lease,
demands a money judgment against Defendant jointly and severally in the total sum of
$164,774.07 plus costs, attorneys' fees and interest at the Lease rate from and after the date of the
Entry of Judgment as provided in the Lease, and brings said Lease to Court to recover said sum.
Respectfully submitted,
Dated: August 24, 2010
Zephen S. ZDarlene M. Nowak
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff, PR Capital
City Limited Partnership
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TABLE OF CONTENTS
ARTICLE 1: FUNDAMENTAL LEASE PROVISIONS AND DEFINITIONS .................
Section 1.01 Fundamental Lease Provisions .........:...:. ...............'........................................3
. ...................................................................... .
Section 1.02 Definitions ............................ ....................3
Section 1.03 Exhibits ............. '............
ARTICLE 2: PREMISES, TENANT'S WORK, AND RELOCATION ....................................
Section 2.01 Premises ............................. ..............:.................................5
Section 2.02 Delivery of Premises...... "" "" 5
Section 2.03 Tenant's Work and Tenant's Plans ......................
................................ ...:. .::...... :...........6
Section 2.04 Mechanic's and Construction Liens......... ................................
Section 2.05 Opening of Premises; Failure to Open/Operate ......................... ...7
Section 2.06 Relocation of Premises.: _ ...7
ARTICLE 3: TERM ......... ....... ....8
Section 3.01 Length of Term.:
Section 3.02 Delive u ......... 8
ry pon Term Expiration... ....:........................:...... ......:. ......::. ......:..
Section 3.03 Effect of Holding Over ................... ...8
ARTICLE' 4: RENT. ........ ..;....:
Section 4.01 Tenant's ......:. 9
Agreement To Pay Rent . ............................................................. .........
Section 4.02 Minimum Rent..: g
Section 4.03 Percentage Rent
:..:9
'Section 4.04 Gross Sales....;.:. .:.:.,:..
Section 4.05 Reporting of Bross Sales; Year End Adjustment .............: 10
Section 4.06 Tenant's Records and Audit.......:. 10
..............
Section 4.07 Additional Rent:..........
Section 4.08 Late/Insufficient Funds Charge.... .•-.-- ., .••••••.11
Section 4.09 Where Rent Payable and to Whom; No Deductions .............................11
Section 4.10 Security Deposit .............. .........11
ARTICLE 5: REAL ESTATE TAXES AND ASSESSMENTS .............................. .....................11
Section 5.01 Taxes..... ..11
Section 3.02 Tenants Tax Charge....... 12
Section 5.03 Tenants Additional Tax Obligations ......... 12
ARTICLE 6: UTILITIES ..................................... :...................................................................... -
Section 6.01 Services .............................
Section 6.02 Service Charges ................ ........ ...13
ARTICLE 7: USE OF PREMISES .....,
.': 13
Section 7.01 Sole Use and Trade Name --..."..
...................................................................................................... Section 7.02 Hours..... ..113
4
Section 7.03 Operational Requirements .:,•••,,,,,,,,,,,,,,,14
Section 7.04 Employee Parking Areas: .....:::. .... 15
. . ..... ............... ..............
Section 7.05 Signs and Advertising .....: ......... .............. is
Section 7.06 Radius Restriction 15
Section 7.07 Compliance with Laws; Hazardous Substances.:,...
ARTICLE 8: COMMON AREAS AND OPERATING COSTS.......:
Section 8.01 Landlord's Control and Maintenance of Common Areas....... . ... .• "...•.."""-....16
Section 8.02 Changes by Landlord .... 17
Section 6.03 Rules and Regulations..... ..... ..............
Section 8.04 Tenant's Rights and Obligations..: ..... 17
Section 8.05 Operating Costs.................................... ...........
Section 8.06 Tenant's Share of Operating Costs
ARTICLE 9: MAINTENANCE AND REPAIR; ALTERATIONS .................. . ••• .••• 17
Section 9.01 Structural Repairs by Landlord...... ....:: ........ •.•. ... ......................7
Section 9.02 Repair and Maintenance by Tenant. ............. ......... 117
Section 9.03 Landlord's' Right to Access the Premises.... """ °"""""" 18
Section 9.04 No Rent Abatement or Damages.... ..18
ARTICLE 10: PROMOTION OF THE SHOPPING CENTER ........_ •• 18
..................................................... 18
Section 10.01 'Marketing Service. Deleted ........
Section 10.02 Marketing Service Charge. Deletetl .......18
....................
.......: 18
ARTICLE 11: INSURANCE, INDEMNITY, WAIVER OF SUBROGATION ......................... 19
Section 11.01 Tenant's Insurance ...............................................
Section 11.02 Landlord's Insurance.::..... ...19
Section 11.03 Effect on Landlord's Insurance....."...-......••"
Section 11.04 Indemnification and Waiver of Claim ."'.°-.•-------••---••••.20
Section 11.05 Mutual Waivers.'...................................................... ...................21
ARTICLE 12: DAMAGE OR DESTRUCTION.....
Section 12.01 Landlord's Duty to Reconstruct the Premises ........ .
Section 12.02 Tenant's Duty to Reconstruct the Premises; ...................... ...21
Section 12.03 Option to Terminate ....... ,................. 21
Section 12.04 Abatement of Pont
...22
ARTICLE 13: CONDEMNATION ........... :....... 22
Section 13.01 Total Condemnation of the Premises 22
Section 13.02 Partial Condemnation of'thePremises .................... 22
Section 13.03 Condemnation of the Shopping Center.........
........22
Section 13.04 Damages........... ...
ARTICLE 14: FIXTURES AND PERSONAL PROPERTY: •••• ....... 22
Section 14.01 Improvements to Premises; Removal ........22
Section 14.02 Tenant's Personal Pro 22
Party, Removal .......................................................... .._..:.:. .....::.. .......:.23
ARTICLE IS: ASSIGNMENT AND SUBLETTING ... ,..:.. .....:...23
Section 15.01 Assignment and Subletting ........: .........23
DavenportsltalanOven-C,pkalCity-Final
June l7, 2008 1 TrachtmaMGO 1
1
Section 15.02 Assignment to Parent, Subsidiary, Affiliated Corporation of Tenant ...........................................24
ARTICLE 16: EVENTS OF DEFAULT AND BANKRUPTCY .......................................
Section 16.01 Events of Default .................. ......................................................24
Section 16.02 Landlord's Remedies .................................................. ..........................................
Section 16.03 Damages ............... ......................................................................25
.............................................................
Section 16.04 Landlord's Self-Help ..............................•..................................26
Section 16.05 Landlord's Default ...................
Section 16.06 Legal Expenses
Section 16.07 Landlord's Right to Assume Lease and Purchase Tenant's Leasehold Interests .......................27 27
Section 16.08 Shopping Center Lease ......................
Section 16.09 Rejection of the Lease..: .... ..........
ARTICLE 17: SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE .............. ...
Section 17.01 Subordination of Lease ............... ..,....28
Section 17.02 Tenant's Attornment................... Section 17.03 Instruments to Ca ...........28
ny Out Intent .............. .:....... ....... .................................... 28
Section 17.04 Estoppel Certificate....... ...:... ..............
Section 17.05 Landlord's Rights of Alienation.. ....28
ARTICLE 18: MISCELLANEOUS ..................29
Section 18.01 Interpretation..... .•
Section 18.02 Quiet Enjoyment ..... ...29
Section 18.03 Notices.
Section 18.04 Real Estate Investment Trust...... ••••.••.. 29
Section 18.05 Reciprocal Easement Agreement ........ ........... 29
Section 18,06 Relationship ...... .............................................. .29
P of Parties ' .. .:....... . ....:... ....:.::. .......:... 30
Section 18.07 Successors....... ................. ........ .......:
Section 18.08 Survival of Obligations... .....•. ........ ........` ........... 30
Section 18.09 Broker's Commission..... ..... "30
Section 18.10 Invalidity; Severabillty...: .. 30
Section 18.11 Time of the Essence..;.,.., --30
Section 18.12 _Applicable Law.. .30
30
Section 18.13 Waiver.. ........ ...:.
Section 18.14 Accord and 5atisfeCtlon.. ........ ....... ....•......30
Section 18.15 Corporate Tenants ......... ......... :...... ......... .:....... ...:..... .........:31
Section 18.16 Recording ........
Section 18.17 Agent of Landlord, Service Providers ................................ ......•. 31
Section 18.18 Finalization of Charges... ...... ..... .... 31
Section 18.19 Financial Information...... ..... "
Section 18.20 Tenant's Guarantor ..,...... .................................................. -31
Section 18.21 Notice to Mort ...:... ......................................................................... .31
Mortgagee, Pertormance of LandloM's Obligationss ...................................................... 31
Section 18.22 Unavoidable Dela .
Section 18.23 Prior Lease
....• 32
Section 18.24 Anti-Terrorism Law ............... ................. ........ ....
...........................................
.32
Section 18.25 Waiver of Jury Trial
Section 18.26 Confidentiality .............. ....................... ....:........... ....33
Section 18,28 Liquor License.... ....................................... 33
Section 18.29 Storage Space..... ....................33
Section 18.30 Oil Storage Tanks 34
Section 18.31 Asset Purchase Agreement .......... ........................
Section 18.32 Entire Agreement......................... ""'
Section 18.33 Submission of Lease to Tenant.::.. """""""".`' 3
EXHIBIT A: PLAN OF THE SHOPPING CENTER ........ :...... .................. ............... ..................... EXHIBIT 8: UTILITIES ......... ..............37
EXHIBIT C: HEATING, VENTILATING, AND AIR-CONDITIONING .....................................
EXHIBIT D: GUARANTEE OF LEASE .............. .. .................................. 38
DavenportsltaBonoven-CapitaiGity-Final
June 17, 2008 \ TrachtmaNGO
THIS LEASE AGREEMENT ("Lease") Is made this day of v
a2008.
nd PR CAPITAL CITY LIMITED PARTNERSHIP, a Penns -----' by and between.
ITALIAN OVEN, INC., a Pennsylvania Corporation ("TenantThe prem,s ps,
s?bca located in Capital"City Mall inCaP ARTS
Pennsylvania ("Shopping Center"). Hill.
ARTICLE 1: FUNDAMENTAL LEASE PROVISIONS AND DEFINITIONS
Section 1.01 Fundamental Lase Provisions.
Certain Fundamental Lease Provisions are presented in this Section and represent the agreement of Landlord
and Tenant, subject to definition and elaboration elsewhere In this Leass.
(a) Premises: Unit No. 0800. containing approximately 6,004 square feet of floor area.
(b) Rent Twm and JApiraMon Date: One Hundred Twenty (120) months commencing on the Rent
Commencement Date. The Rent Term expires on the last day of January immediately following, the one-hundred
twentieth (120x') month following, the Rent Commencement Date (the 'Expiration Date").
(c) I GaLnaum Rent:
Time period MgnWy Amount
Rent Commencement Date
through the 38'" month $90.000.00 $7,501.83
From the 37"' month
through the 84x' month $110;000:00 $9,174.00
From the 85°i month
through the end of the Term $120.000.00 $10,008.00
(d) I'9rCeifitaae Rent;
Time Annual freak Point Percents Rate
Rent Commencement Date
through the 38'" month $2,250,000.00 Four Percent (4%)
From the 374' month
through the 84"' month $2,750,000.00 Four Percent (496)
From the 85' month
through the end of the Term $3,000,000.00 Four Percent (4%)
(e) Rent Cpmmenc? e_ ?rnarNtfl >T earlier (i) the date on which Tenant initially opens its business to the
public inthe Premises or (if) October 1, 2008 (the "Required Opening Date").
(f) Marketina Service Charge: N/A
(g) HVAC Chase: N/A
HVAC Paulbm@ttt Contiril+ution Rate: N/A
Surlhler Chasse: N/A:
(h) Taxes: For each "Tax Year" (as defined in Section 5.01). Tenant shall pay to Landlord on account of Tenant's
share of any "'taxes" (as defined In Section 5.01) an amount subject to adjustments as set forth in this Lease.
Landlord estimates Tenant's share of Taxes for the first Tax Year to be $1.80 per square foot of GLA of the
Premises.
(i) Oneratlna'Costs: N/A -
(j) Tenant's Security Deaosit: WA
(k) Trade Name: Davenport's Italian Oven, Inc.
0) Permitted Ilse: A sit down Italian restaurant serving substantially all items set forth on the menu attached hereto. "
(m) Plan Submit t Date; April 16, 2008
(n) Construction Commencement Dater June 2, 2QO8
(0) Tenant Consbuction-Aillowafte N/A
(p) Radius: 0 miles
(q) Guarantor. Henry H. Davenport
Davww tsitatlanOven-CapkalCitiaFinaI
June 17, 2t108 % TrschbYwVGO' 3
Guarantor's Social Security Number: 334-34-2809
Address:
5220 Simpson Ferry Road
Mechanicsburg, PA 17050
(r). Notice Addresses:
Landlord:
Copy to:
PR CAPITAL CITY LIMITED PARTNERSHIP
clo PREIT Services, LLC
200 South Broad Street
The Bellevue, Third Floor
Philadelphia, PA 19102
Attn: Director, Legal
Tenant:
Kell Davenport
5220 Simpson Ferry Road
Mechanicsburg, PA 17050
PR CAPITAL CITY LIMITED PARTNERSHIP
Management Office
3506 Capital City Mail Drive
Camp Hill, PA 17011
Attn: General Manager
Copy to:
(s) Tenant's Bi tin al Address: Henry H. Davenport
5220 Simpson Ferry Road
Mechanicsburg, PA 17050
(t) Landlord's Rent Payment Address: PR Capital City Associates LP
P.O. Box 92406
Cleveland, OH 44193
Section 1.02 Definitions
"Accounting Period" means the period consisting of twelve (12) conserutve months (except for the first and last
Accounting Period as set forth below), commencing on a date solely determined by Landlord from time to time and each
succeeding twelve (12) calendar month period during the Rent Term. Unfit notified by Landlord in writing of a change,
Accounting Period shall be a January 1 through December 31 calendar year period. The first and last Accounting Period
of the Rent Term shah be prorated, d less than twelve (12) consecutive calendar months.
"Additional Rent" has the meaning set forth in Section 4.07
"Agent" has the meaning set forth in Section 18.17.
"Marketing Service Charge" has the meaning set forth in Section 10.02.
"Common Areas" means all areas, facilities and improvements operated or provided at or in connection with the
Shopping Center from time to time for the non-exclusive common use of Landlord, Tenant, and the other tenants and
occupants of the Shopping Center and their employees, agents, subtenants, concessionaires, licensees, customers and
other invitees as designated, made available or maintained by Landlord in or near the Shopping Center including, but not
limited to, parking areas, parking facilities, approaches, traffic controls and signs, roadways, sidewalks, open and closed
pedestrian walkways curbs, storm drainage facilities, retaining walls, driveways, public transportation loading areas,
delivery areas and loading platforms, parcel pickup stations, ramps, tunnels, canopies, landscaped areas, community
rooms and auditoriums, offices, elevators, escalators, exits, entrances, roofs, beams, public restr`ooms, first-aid and
comfort stations, lounges and shelters, sprinkler mains, light facilities and skylights, telecom facilities, utility lines, utility
rooms, sanitary systems, water filtration and/or treatment facilities, service areas, fire exits, corridors, and malls.
"Excluded Areas" means portions of the Shopping Center designated as a department store or major tenant or
by a trade name on Exhibit A attached hereto or used for or for use in connection with the operation of a ;department
store.(whether occupied or vacant); premises of at least 15,000 square feet of GLA leased to or occupied by a single
tenant; all office space including mail management office space; all basement space; all storage spaces; an out parcels
and pad sites; premises without an Interior entrance to the mall; all kiosks, retail merchandising units or other temporary
occupants under an agreement for a term of one (1) year or less; and all buildings shown on Exhibit A which are labeled
as "Excluded Area".
"Food Court" means the area or areas now or in the future, 4 any, specifically designated by Landlord for small
restaurant or other food service operations -situated in the Shopping Center, including the individual premises and any
seating areas located therein and the maintenance and housekeeping areas primarily serving the Food Court. The term
"Food Court" includes the same as reduced, expanded or otherwise altered from time to time. [if Food Court tenant,
attach Food Court exhibit)
"Governmental Requirements" has the meaning set forth in Section 7.07.
"GLA" means the square feet of floor area in fully enclosed buildings which are erected on portions of the
Shopping Center (other than Excluded Areas) which are occupied pursuant to an agreement with Landlord or its Agent
unless as otherwise specifically set forth in this Lease. The GLA of the Premises shall be measured from the exterior face
of exterior walls and the exterior face of service corridor walls, the line along the front of the Premises where the Premises
abuts the enclosed mail (which is commonly known as the "Lease Line") and the center line of any wall Tenant shares
with other tenants or occupants. With respect to all leasable areas other than Tenant's Premises, the measurement of
DavenportsltalianOven-CapitalCtty-Final
June 17, 2008 1 Trachtman/GO A
GLA shall be determined by virtue of the definition contained within the lease in question. No deduction from GLA shall
be made for columns, stairs, elevators, air shafts, or any Interior construction or equipment.
"Gross Sales" has the meaning set forth in Section 4.04.
"Lease" means the Fundamental Lease Provisions, the Lease Agreement, and the Exhibits attached hereto.
"Lease Year" means the twelve (12) full calendar months of the Term commencing with the January 1°t
immediately following the Rent Commencement Date and ending December 31" of such calendar year and each
succeeding twelve (12) month period; provided, however, that the first Lease Year shall commence on the Rent
Commencement Date and terminate on the Immediately following thirty-first (3111) day of December In the Term and the
last Lease Year shalt terminate on the last day of the Term. "Partial Lease Year" means that portion of the Lease Term
prior to the first full Lease Year or following the last full Lease Year.
"Minimum Rent" has the meaning set forth in Section 4.02.
"Operating Costs" has the meaning set forth in Section 8.05.
"Percentage Rent has the meaning set forth in Section 4.03.
"Percentage Rent Break Point" or "Break Point" has the meaning set forth in Fundamental Lease Provision
Section 1.01(d).
"Rent" has the meaning set forth in Section 4.01.
"Rent Term" has the meaning set forth in'Section 3.01.
"Shopping Center" means the land and improvements shown on Exhibit A attached hereto, as the same may
hereafter be reduced, expanded or otherwise alteredfrom time to time, Thepurpose of the plan attached hereto as
Exhib)t A is solely to show the approximate location of the Premises and the present
Center, but Landlord does not warrant or represent to Tenant that the Shopping Center and the occupants therein will
continue to exist in the configuration as shown or that Landlord owns all of the land and improvements as shown on
Exhibit A. Landlord may at any time, and from time to time, eliminate land from, or add to or substitute for land of, the
Shopping Center or any part thereof, or eliminate, add, relocate or substitute any improvements, or change, enlarge or
consent to a change in the shape, size, location, number, height, or extent of the improvements to the Shopping Center or
any part thereof 'including, without limitation, adding additional levels to any existing buildings .therein, and altering
buildings, parking areas, and other Common Areas.
"Taxes" has the meaning set forth in Section 5.01.
"Tax Year" has the meaning set forth In Section 5.01.
"Tenant's Work" has the meaning set forth in Section 2.03.
"Tenn" has the meaning set forth in Section 3.01.
Section 1.03 Exhibits.
The following plans and special provisions are attached hereto as Exhibits, are incorporated herein and are
hereby made apart of this lease.
Exhibit A Plan of the Shopping Center as presently constituted which plan also shows the approximate location of
the Premises and the Excluded Areas.
Exhibit B Utility Consumption and Payment Exhibit:
Exhibit C: Tenant Heating, Ventilating and Air Conditioning Exhibit.
Exhibit D Guarantee of Lease (the "Guarantee"), if applicable.
Exhibit E Tenant's Menu
ARTICLE 2: PREMISES, TENANTS WORK, AND RELOCATION
Section 2.01 Premise's.
Landlord hereby demises and leases to Tenant and Tenant hereby rents from Landlord those certain Premises
now existing or hereafter to be erected in the Shopping Center as shown on Exhibit A attached hereto. The Premises is
limited vertically to the ceiling height above the structural floor. In the event the Premises is a comer location, the
Premises shall exclude any rights with respect to the exterior of the exterior side wail of the Premises. Landlord shall
have the exclusive right to use the exterior face of the exterior walls of the Premises and the roof of the Shopping Center,
unless otherwise granted to Tenant in writing. Landlord reserves the right to Install, maintain, use, repair, and replace
pipes,. ductwork, cables, conduits, plumbing, vents, utility lines and wires in, through above and below the Premises, In
the column space, and in and under the floor slab, except that Landlord shall not materially adversely Interfere with
Tenant's business operations within thePrernises. Except where necessary, as determined by Landlord's architect, no
pipes; conduits, utility lines, or wires installed by Landlord shall be exposed in the sales area of the Premises.
Section 2.02 De11 veL9fErem1ses: -
DavenportsitalianOven-CapitwCity-Final
June 17, 2008 1 Trachtman/GO 5
(a) As Is. Tenant acknowledges that it has had the opportunity to examine the Premises and hereby agrees
to accept the Premises in the "as is" condition In which it exists on the date Landlord turns over the key to the Premises to
Tenant or Tenant's designee. Tenant further acknowledges that Landlord has not made any representations as to the
present or future condition of the Premises or what Items, if any, the prior occupant of the Premises is required to or may
leave therein.
(b) Noticas of Ayailabitity and poccessaon. The Premises shall be considered available to Tenant when
Tenant receives Landlord's written notice of availability of the Premises ("Notice of Availability"). Upon Tenant's receipt
of the Notice of Availability Tenant shall have only limited access to the Premises for purposes of Inspection and space
verification. The Notice of Avallability shall not constitute delivery of the Premises and Landlord shall retain possession of
the Premises until the earlier of the date Landlord delivers possession to Tenant by a notice of possession ("Notice of
Possession") or upon the Construction Commencement Date, at which time Tenant shall have access to the Premises
for all purposes set forth in this Lease. In the event Landlord has delivered a Notice of Availability to Tenant but has not
approved Tenant's, Plans, delivery of possession of the Premises to Tenant shall not occur until Landlord has delivered to
Tenant a Notice of Possession.
(c) 2WM. Landlord shall not be liable in the event the existing occupant of the Premises fails to vacate
timely, except that any delay in Tenant's occupancy due to the failure by the prior occupant to vacate shall extend the
Construction Commencement Date and the Required Opening Date specified herein for a period equal to the number of
days between the Construction Commencement Date and the date the former occupant vacates; provided that If physical
Possession of the Premises is not available by a date which is one (1) year from the Construction Commencement Date,
Landlord or Tenant may terminate this Lease upon thirty (30) days notice to the other; in which event, this Lease shall be
null and void and neither party shall have any liability' hereunder to the other. Furthermore, Tenant releases Landlord and
Landlord's contractors from any claim for damages against Landlord or Landlord's contractors for any delay in the date on
which the Premises shallbe ready for delivery to Tenant:
Section 2.03 Tenant's Work and Tenant's Ptanc
(a) Tenant's Work. Tenant shall perform all work required to remodel the Premises fully and completely and
to adapt the same for the Permitted Use (herein called "Tenant's Work"). Tenant shall commence Tenants Work on or
before the Construction Commencement Date. Tenant shall design the Premises and Tenant's Plans In accordance with
Landlord's current store design criteria booklet (herein called "Tenant Design Criteria"), a copy of which Tenant
acknowledges it has received, and comply with all requirements set forth therein. In the event of any inconsistencies
between the text of this Lease and the Tenant Design Criteria, the Tenant Design Criteria shall prevail
Tenant's Work shall be performed :(1) in accordance with all necessary governmental approvals and
permits, which Tenant shall obtain at its sole expense; (ii) In accordance with Landlord's Tenant Design Criteria and all
applicable Governmental Requirements (as defined in Section 7.07), (ill) without interfering with the use, occupancy or
enjoyment of any part of the Shopping Center, (iv) without obstructing access to the premises of any other occupant of the
Shopping Center or obstructing Common Areas, and (v) in a good and workmanlike manner and diligently prosecuted to
completion. Tenant shall repair all items damaged as a result of the performance of Tenant's Work promptly upon the
occurrence of such damage and shall at all tanes keep all portions of the Shopping Center (other than the Premises) free
from and unobstructed by debris, equipment or materials related to Tenant's Work. Any construction work performed by
Tenant without Landlord's consent shah be returned to its original conditional Tenant's expense upon Landlord's request.
(b) Tenant's Plans. On or before the Plan Submittal Date, Tenant shall submit to Landlord's tenant
coordinator (herein called "Tenant Coordinator"), for Landlord's approval, plans (herein called "Plans") specifying each
aspect of Tenant's Work, including the following Items: (i) a colored rendering of the proposed storefront and signs,
including an Intemally-illuminated, individually letterad sign (or other type of sign as specified by Landlord) above the
storefront and professionally lettered Trade Name signs for Tenant's service doors, and sign shop drawings, (Ii) sample
materials to be used in the Promises and signs, (III) photographs of fixtures to be used, (iv) the floor plan and furniture
plan of the Premises, and (v) mechanical, plumbing, sprinkler, and electrical drawings. Tenant shall prepare Its Plans in
accordance with the Tenant Design Criteria and In compliance with all applicable Governmental Requirements. Tenant's
Plans shall be prepared by a licensed architect or engineer, as applicable. After receipt of Tenant's Plans, Landlord shall
return the Plans to Tenant marked "approved,"' "approved as noted," or "not approved". If marked "not approved",
Landlord shall note the reasons for disapproval. On or before ten (10) days after Tenant's receipt of the "not approved"
Plans, Tenant shall resubmit to Tenant Coordinator revised Plans addressing the objections. Landlord shall return the
Plans to Tenant marked as set forth above and Tenant shall, within an additional ten (10) day period, resubmit revised
Plans until the same have been "approved as noted" or approved". If Landlord accepts Tenant's Plans as "approved" or
"approved as noted", Tenant need not resubmit the Plans, but Tenant shall revise such Plans to incorporate Landlord's
required changes and Tenant covenants that Tenant's Work shall comply with the notes disclosed on such "approvad as
noted" Plans.
(c) Plan Review Fee. Deleted.
(d) tnsurancefBuildino P rmit. On or before the Construction Commencernent Date, Tenant shall deposit
with Landlord certificates of Insurance as required in Article 11 and the Tenant Design Criteria, as wolf as a copy of
Tenant's building permit. Tenant shall be responsible for any damage resulting from Tenant's Work; includkg damages to
the Shopping Center, the Premises, and the premises of other tenants. Landlord shall not be required to )rrsuire,
reconstruct, or reinstall any of Tenant's Work,
(e): Mandatorv'Remodel. Deleted.
(f) Alterations by T nt. Tenant shall not perform. any construction or make any alterations (including
painting, decorating, changing the architectural treatments, fixtures, d$eor, or appearance of any part of the Premises,
penetration through any roof, floor or exterior or corridor wall) In or to any part of the Premises at any time without :first
obtaining Landlord's written approval and will remove promptly, upon Landlord's request, any such alterations made
without Landlord's written approval. Tenant shall not, without having obtained Landlord's prior written consent, perform
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any work whatsoever to the roof, exterior walls, and structural portions of the Premises or Shopping Center, or to areas
reserved to Landlord or excluded from Tenant in the Tenant Design Criteria or Shopping Center regulations. Any damage
to the Premises or to any person or property occurring as a result of a breach of this provision shall be the sole
responsibility, cost, and expense of Tenant. Notwithstanding the foregoing, Tenant shall be permitted to make
nonstructural alterations to the interior of the Premises, which alterations comply with Landlord's then current Tenant
Design Criteria, not to exceed Ten Thousand Dollars ($10,000.00) during any twelve (12) month period without Landlord's
written approval, but with at least ten (10) days written notice to Landlord.
Furthermore, Tenant shall make, at Tenant's own cost and expense, all additions and alterations to the Premises
ordered or required by any Governmental Requirements, whether in order to meet the special needs of Tenant, or by
reason of the occupancy of Tenant or Tenant's Permitted Use, or otherwise; provided, however, Tenant shall not be
required to make structural alterations to the Premises or the building in which the Premises is located unless made
necessary by reason of the nature of Tenant's business, or the manner of Operation thereof, or work performed in the
Premises by or on behalf of Tenant.
(0) The provisions of this Article 2 shall apply with respect to Tenant's Work, any remodel or alterations, or
any other work performed by Tenant in or about the Premises at any time during the Term.
Section 2.04 Mechanic's and Construction Liens.
(a) Generall Tenant shall not permit, and in no event shall Landlord or Landlord's interest in the Premises
and/or the Shopping Center be liable for or subject to any mechanic's, materiaiman's, laborer's, or construction lien
("Lien") for any of Tenant's Work, any remodel or alterations, or any other work Wormed or materials supplied by or on
behalf of Tenant ("Lienable Work") at any time during the Terris.
(b) Prior Waiver of Lien. To the extent permitted under applicable law, Tenant, for itself and all those parties
providing Lienable Work, hereby waives the right to hold, claim, assert, file or enforce any Lien whatsoever against the
Premises and/or the Shopping Center. Prior to the commencement of any Lienable Work (including delivery of materials),
Tenant shall cause its general contractor (and any subcontractors and sub-subcontractors, If Landlord so requests) to
execute and file in the Clerk's or Prothonotery's Office for the County In which the Shopping Center Is located a waiver of
the right to file mechanic's liens against the Premises and the Shopping Center in a legally enforceable form approved by
Landlord ("Waiver of Liens"). The Waiver of Liens shag provide, to the extend permitted under applicable law, that the
general contractor for itself .and all of its subcontractors, sub-subcontractors; materialmen, and suppliers waives any and
all lien rights that it may have against Landlord's estate, right, title and interest in any part of the Premises and/or
Shopping. Center.
(e) Posting of Non-Res oonsibiliN. Landlord shall have the right to post or keep posted at or near the
Premises notices of non-responsibility for any construction, alteration, or repair of the'Premises by Tenant
(d) Dts¢hame or Satisfa inn of Lien. In the event a Lien is made or filed, Tenant shag cause the Lien to be
satisfied or discharged of record, whether by bond or otherwise, within fifteen (15) days after written request by Landlord.
If Tenant shall fail to cause such lien or .claim of lien to be satisfied or discharged within the period aforesaid, such failure
shall be deemed an Event of Default and, in addition to any other rights or remedies Landlord may have under this Lease,'
Landlord may, but shall not be obligated to, satisfy or discharge the Lien either by paying the amount claimed to be due or
by procuring the satisfaction or discharge of the Lien or claim of Lien by payment, deposit, or bonding proceedings and, in
any such event, Landlord shall be entitled (if permitted by applicable state law) to compel the prosecution of any action for
the foreclosure of the Lien or claim of Lien by the llenor with interest, costs and expenses. AN costs and expenses
Incurred (including, but not limited to, reasonable attorneys' fees) and/or amounts paid by Landlord in connection
therewith or in connection with insuring title to the Shopping Center or any interest herein free of such Lien or claim of
Lien, together with a Late Charge (as set forth in Section 4.08) charged from the respective dates of Landlord's making
the payment and/or incurring the cost and expense, shall constitute Additional Rent payable by Tenant to Landlord on
demand.
Section 2.05 Oosriina of Premises: Failure to Ooen/Overate.
(a) 9oenina of Prem'??. Tenant agrees to complete or cause to be completed Tenant's Work and the
installation of fixtures, equipment and merchandise and to open its business to the public in the Premises no later than the
Required Opening Date (as -specified in the Fundamental Lease Provisions).
(b) Failure to Open/Operate. If Tenant falls to open its business to the public in the Premises on or before
the Required Opening Date, or fails to continuously operate Its business in accordance with the terms .of this Lease, or
vacates the Premises prior to the expiration of the Term, Landlord will suffer damages in an amount which are not readily
ascertainable and in any such event, Landlord shall have the right to collect (as liquidated damages and not as a penalty)
one=thirtieth (1/30k') of an amount equal to the monthly installment of Minimum Rent for each day that Tenant fails to
operate, in addition to all other Rent and charges which are due hereunder. Any and all sums payable by Tenant to
Landlord pursuant to the immediately preceding sentence shall be paid on demand and shall in no way relieve Tenant
from any of its obligations under this Lease, including the obligation to open and operate its business in the Premises, and
Landlord shall have.all other rights and remedies under this Lease, at law and in equity, arising from Tenant's failure to
open and operate pursuant to this Section.
Section 2.06 Relocation of Premises.
(a) Right to Relocate. Notwithstanding anything to the contrary contained in this Lease, in connection with
any expansion, renovation, re-merchandlsing, rearrangement or change in size :or configuration of any part of the
Shopping Center, Landlord shall have the right on one or more occasions to require Tenant to relocate from the Premises
to a location designated by Landlord ("Relocated Premises"), which shall contain approximately the same number. of
square feet as the Premises. Landlord shall advise Tenant in writing ('Relocation Notice") as to the location of the
Relocated Premises and the date by which Landlord will require Tenant to complete such. relocation. Within thirty (30)
days of Tenant's receipt of Landlord's Relocation Notice, Tenant shall advise Landlord in writing whether Tenant agrees to
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relocate to the Relocated Premises in accordance with the provisions of this Section.
(b) Riaht to CaneAh In the event Tenant fails to notify Landlord that Tenant will or will not relocate within the
aforesaid time frame or Tenant refuses to relocate, then, at any time thereafter, Landlord may cancel this Lease upon
sixty (60) days prior written notice to Tenant ("Cancellation Notice"), in which event this Lease will expire on such date
as set forth in the Cancellation Notice ("Cancellation Date") as though the Cancellation Date was fixed as the expiration
date of this Lease. Tenant shall vacate the Premises and surrender possession to Landlord on or before the Cancellation
Date in accordance with the terms of this Lease, and Landlord shall have no liability to Tenant as a result of such
cancellation, except as set forth in this Section. If Landlord sends the Cancellation Notice and Tenant vacates as set forth
herein, Landlord shall pay to Tenant the unamortized net cost of Tenant's leasehold improvements to the Premises paid
for by Tenant, exclusive of any construction allowance which has been paid to Tenant and the value of any construction
reimbursements that have been waived by Landlord, such amortization to be determined with reference to Tenant's
federal income tax returns, but in no event more than an amount base on straight-tine depreciation over the Rent Term
("Unamortized Net Cost"). Tenant shall deliver to Landlord reasonably detailed evidence substantiating the Unamortized
Net Cost and, upon Landlord's request, any additional' information as Landlord may reasonably require in connection with
the determination of the Unamortized Net Costs. Landlord will pay to Tenant the Unamortized Net Cost within the later of
thirty (30) days after Tenant vacates the Premises or thirty (30) days of receipt of the Information requested by Landlord, If
Landlord requests such information, so long as Landlord is in agreement with Tenant with regard to the amount of such
payment.
(c) Sufld-out of Relocated remi?p?. If Tenant agrees to relocate pursuant to the Relocation Notice,
Landlord shall pay the cost of (I) preparing the Relocate Premises so that the same will be reasonably comrable in
leasehold improvements and finish to the Premises as it existed immediately prior to Tenant's vacating the same and (ii)
moving and reinstalling Tenant's trade fixtures, equipment, and storefront sign. Tenant shall be responsible for moving its
inventory.
(d) Temporary or Partial Relocation ' In the event Tenant is required to relocate temporarily i.e., for no more
than eight months), Tenant shall accept the Relocated Premises "as is` and Landlord shall not be (
work therein. In addition, Landlord will reimburse Tenant for its reasonable and substantiatedreexpuired to ensespIncurredarin
moving from the Premises to the Relocated Premises (and returning to the original +Premises, If applicable) which
reimbursement shall be made within forty-five (46) days following Tenant's submission of its documents expenses. In
the event Tenant is required to surrender. only a portion Of the Premises to Landlord', but is able to operate in the
remainder of the Premises, Rent shall abate .on a proportionate basis from the date Tenant surrenders to Landlord
possession of the affected, portion of the Premises,
(e) Amendment: At Landlord's request, the parties shag enter into an amendment to this Lease which shall
confirm the area and size of the Relocated Premises. The Minimum Rent and Percentage Rent Break Point shall be
amended automatically to bear the same relationship to the Minimum Rent and Percentage Rent Break Point presently
set forth in this Lease as the existing area of the Premises bears to the area of the Relocated Premises.
(f) Remedy. Tenant 'agrees that the execution of the lease amendment or its receipt of the Unamortized Net
Cost payment shall be Tenant's sole remedy in the event Tenant is required to surrender possession of the Premises as
provided in this Section.
ARTICLE' 3: TERM
Section 3.01 AW h of m,
The term of this Lease (sometimes herein called the 'Term) means the period of the "Interim Terre" followed
immediately by the period of the "Rent Term. The "Interim Term" means the period commencing on the date of this
Lease and ending on the date Immediately preceding the Rent Commencement Date. The "Rent Term means the
period commencing on the Rent Commencement Date and ending on the Expiration Date (both as define in
Fundamental Lease Provisions), as extended pursuant to Section 3.03 or by agreement executed by Landlord' and
Tenant, or as sooner terminated as provided herein, as the case may be. If not sooner terminated as herein provided, this
Lease shall terminate on the Expiration Date without the necessity of notice from Landlord or Tenant. Entry by Tenant to
the Premises prior to the Rent Commencement Date shag be subject to all of the provisions ofthis Lease other than the
duty to pay Rent, except that Tenant shall pay for all utilities and services supplied to it during such period.
Section 3.0Y Delivery upon Tenn Expiration.
Tenant shall deliver up and surrender to Landlord possession of the Premises upon lamination of the Term, broom clean, free of debris, in good order, condition and state of repair,, and m compliance withr
Article 14 (excepting Landlord's obligations under this Lease, damage by casualty, and ordinary wear and tear).
Furthermore, Tenant shall deliver the keys to the Premises to the Shopping Center management office or to such other
place as Landlord may designate and shall notify Landlord in writing of all combinations of looks, safes and vaults in the
Premises.
Section 3.03 Effect of Hotdina over,
(a) Holdover. If Tenant or any,
party claiming under Tenant remains in possession of the premises or any
part thereof after the Expiration Date or earlier termination of this Lease (a "holdover"), no tenancy or interest in the
Premises shall result therefrom, such holdover shall be an unlawful detainer, and all such parties shag :be sub)ect to
immediate ouster and removal. In the event of.holdover, Tenant shall pay liquidated rent to Landlord. upon demand in an
amount equal to all Percentage Rent and Additional Rent plus double the Minimum Rent for such holdover period; and
Tenant shall Indemnify and hold harmless Landlord from all loss, cost, expense .and liability whatsoever. resulting from
such holdover including any claims made' by any succeeding tenant due in whole or in part to Tenant's holdover.
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(b) Good Faith Neootiatie?nc?, Notwithstanding the foregoing, in the event Landlord and Tenant are
conducting good faith negotiations to extend the Term or to enter Into a new lease for the Premises, Tenant shall continue
making all payments at one hundred percent (100%) of the Bent (including Additional Rent) payable as of the last month
of the Term. Upon execution of an agreement to extend the Term or upon the execution of a new lease for the Premises,
Tenant shall retroactively pay the increase in Rent, if any, as set forth in such agreement to extend the Term or new
lease. In the event good faith negotiations between the parties cease, or in the event Landlord in Landlord's sole
discretion decides not to renew the Term, and if upon ten (10) days notice from Landlord, Tenant (or any party claiming
under Tenant) refuses to surrender the Premises to Landlord. Landlord shall have the option to charge Tenant the
liquidated rent set forth in paragraph (a) above from the expiration of such ten (10) day notice until such time as Landlord
obtains possession of the Premises from Tenant.
ARTICLE 4: RENT
Section 4.01 _Tenant's Agreement To Pav Rent.
For the right of use and occupancy of the Premises during the Rent Term, Tenant hereby agrees to pay Minimum
Rent, Percentage Rent, and Additional Rent (collectively referred to herein as "Rent") at the times and in the manner
provided In this Lease. All Rent shall be paid in United States currency and shall, if other than cash, be drawn on a United
States bank. Landlord may accept any payment of Rent by Tenant of a lesser amount than shall be due from Tenant
without prejudice to any rights or remedies which Landlord may have against Tenant. Any endorsement or statement on
any check accepted by Landlord or any statement in correspondence accompanying such check that acceptance of such
lesser amount is payment in full shall be given no effect.
Section 4.02
AJi inimum Rent.
(a) Mf21,If UM Rent. Tenant shall pay to Landlord a guaranteed annual minimum rent ("Minimum Rent") as
set forth in the Fundamental Lease Provisions, which shall be due and payable in twelve (12) equal monthly Installments,
in advance, on the first day of each calendar month of the Rent Term at Landlord's Rent Payment Address. Tenant shall
pay the first installment on 'the Rent Commencement Date whether or not such date is the first day of a calendar month.
(b) Proration. In the event that the Rent Commencement Date shall be a day other than the first day of a
calendar month, Tenant's first payment of Minimum Rent shall be prorated for the fractional month between the Rent
Commencement Date and the first day of the first full calendar month in the Rent Term, on a per diem basis (calculated
on the actual number of days in the month), and Tenant shall pay such amount In advance on the Rent Commencement
Date. If the Minimum Rent increases during the Rent Term, for the purpose of determining the date on which Minimum
Rent increase(s) become effective, a partial month shall be disregarded.
(c) Exciangign-IMM62. Deleted.
(d) Aflapawn to Narketlna cQ..&g. At Landlord's discretion, Landlord may allocate a portion of Tenants
10inimum Rent to fund the Marketing Service (as described in Article 10) which may be in operation at the Shopping
Center, regardless of whether Tenant pays a Marketing Service Charge, at no increase in Minimum Rent to Tenant.
Section 4:03 Percentage Rent.
(a) Percentage Rent. in addition to Minimum Rent, during the Rent Term, Tenant shall pay to Landlord
percentage rent ("Percentage Rent") as determined by this Article 4. Percentage Rent for each Lease Year shall he an
amount equal to the Percentage Rate (set forth in the Fundamental Lease Provisions) multiplied by the amount of Gross
Sales made during such Lease, Year in excess of the applicable Break Point (set forth in the Fundamental Lease
Provisions). Each payment of Percentage Rent shall be paid by Tenant to Landlord at the times set forth herein, at the
place then fixed for the payment of Minimum Rent, together with Tenant's Monthly Reportof Gross Sales (as defined
below).
(b) O=tlon. In the event that the first or last Lease Year shall consist of fewer than twelve (12)-full calendar
months or if during a certain Lease Year or Partial Lease Year Minimum Rent has been wholly abated for a period of time,
then the applicable Break Point set forth in the Fundamental Lease Provisions shall be multiplied by a fraction, the
numerator of which is the number of days In such Partial Lease Year for which the Minimum Rent was payable and the
denominator of which is three hundred sixty-five (365). In the event the Minimum Rent shall be partially abated (rather
than wholly abated) for a period of time In any Lease Year or Partial Lease Year, the Break Point shall be reduced
proportionately.
(c) Patent. In each Lease Year or Partial Lease Year, as the case may be, Tenant shall be obligated to
pay Percentage Rent on tenth (10') day of the month immediately following the month during which Tenant's Gross Sales
'for such Lease Year or Partial Lease Year.exceed the Break Point and each month for the balance of that Lease Year or
Partial Lease Year. Tenant shall make such payments concurrently with the submission by Tenant to Landlord of the
written statement of Monthly Report (as defined below).
(d) Percentage Rent Adjustment. In the event the Break Point is subject to adjustment during the Term and
the date on which any such adjustment is to occur (hereafter referred to as the "Rental Adjustment Date") is other than
the first day of a Lease Year, the Break Point for the Lease Year in which the Rental Adjustment Date shall fall shall be
the sum of: (1) the initial Break Point multiplied by a fraction the numerator of which shall be the number of days in the
period commencing on the first day of the Lease Year in which the Rental Adjustment Date shall fall and ending on the
day immediately prior to the Rental Adjustment Date and the denominator of which shall be three hundred sixty-five (365),
plus (11) the later Break Point multiplied by a fraction, the numerator of which shall be the number of days in the period
commencing on the Rental Adjustment Date and ending on the last day of the Lease Year in which the Rental Adjustment
Date shall fall and the denominator of which shall be three hundred sixty-five (365).
Section 4.04 Gross Sales.
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June 17, 2008 1 Trachtman/GO
(a) Definition of Gross Sates, The term "Gross Sales" means the amount of the sales price of all
merchandise, wares and other goods sold (including gift and merchandise certificates/cards when redeemed), leased,
rented or licensed, and the actual charges for all services performed, business conducted by Tenant and by any
subtenant, licensee, concessionaire and other occupant in, at, from, or arising out of the use of the Premises, whether
wholesale or retail, whether for cash or credit, or otherwise, and including the value of all consideration other than money
recelved for any of the foregoing, without reserve or deduction for inability or failure to collect, including but not limited to
sales, leases and services:
(i) where the orders originate in, at, from or arise out of the use of the Premises, whether delivery or
performance is made from the Premises or elsewhere; or
(11) made or performed by mail, telephone, Internet, telecopy, fax, website or similar means and
orders received, filled or delivered in, at or from the Premises; or
(iii) made or performed by means of telephonic, mechanical or other vending means or devices' in or
for the Premises; or
(Iv) which Tenant, and any subtenant, licensee, concessionaire or other occupant, in the normal and
customary course of its business, would or does credit or attribute to its operations at the Premises or any part thereof.
Gross Sales shall include any deposit accepted and retained by Tenant. Each installment or credit sale shall be
treated as a sale for the full price in the month during which such sale is made, regardless of whether or when Tenant
receives payment. No franchise, value added tax, capital stock tax, tax based upon assets or net worth or gross receipt
tax, and no income.or similar tax based on income or profits shall be deducted from Gross Sales.
(b) Gross Sales Exclusions. Only the following shall be excluded from Gross Sales, provided that Tenant
supplies records to Landlord, in form and substance reasonably acceptable to Landlord, which adequately support such
exclusions:
(i) exchanges of merchandise between Tenant's stores made solely for the convenient operation of
Tenant's business and not to consummate a sale made In, at or from the Premises:
(ii) returns to suppliers, shippers or manufacturers;
(ill) cash or credit refunds to customers on transactions otherwise included In Gross Sales;
(iv) sales of frxtures, machinery and equipment, which are not stock for sale or trade, after use in the
conduct of Tenant's business in the Promises;
(v) amounts separately stated in the sales receipt and collected from customers which are paid by
Tenant to any government for any sates or excise tax imposed by law at the point of sale;
(vi) sales to employees at a discount, not to exceed one percent (1 g6) of annual Gross Sales; and
(vil) cash from permitted pay telephones and vending machines not located in the sales area and
primarily for use by Tenant's employees.
Section 4,05 Reporting of Gross Sales: Year ind Adiustment.
(a) M2 hlv Report. Tenant shall furnish to Landlord within ten (10) days after the end of each calendar
month during the Rent Term .a complete statement (the "Monthly Report"), cekl
d by Tenant (or a responsible financial
officer of Tenant if Tenant is a corporation), setting forth (1) the amount of Gross Sales during such month, (H) the
aggregate amount of Gross Sales during such Lease Year (or Partial Lease Year, as the case may be), including such
month, (Hf) the amount, if any, by which ,such aggregate amount of Gross Sales exceeds the Break Point, and (Iv) the
amount of Percentage Rent paid by Tenant to Lar4ord'for such Lease Year (or Partial Lease Year, as the case maybe).
If the Rent Commencement Date shall not be the fast day of a calendar month, the period between the Rent
Commencement Date and the first day of the first full calendar month in the Rent Term and Tenant's Gross Sales during
such period shall be added to the first-calendar month for both the purpose of the computation of Percentage Rent and
the purpose of reporting of Gross Sales.
(b) Yearf Report, Tenant will also furnish to Landlord within sixty (60) days after the end of each Lease
Year a complete statement (the "Yearly Report") certified as a full, complete, and accurate report by Tenant's chief
financial officer, showing in reasonable detail the amount of Gross Sales during such Lease Year and the amount of
Percentage Rent paid to Landlord for such Lease Year, Tenant shall not be porrmitted to modify the Yearly Report once
furnished to Landlord.
(c) Deltyero of Reports. The reports required by this Section shall be delivered to Landlord's Notice
Addresses or to another person and/or place as Landlord may designate from time to time. If Tenant shall fail to deliver
any Monthly Report and/or Yearly Report when due, in addition to all of Landlord's other rights and remedies .hereunder,
Tenant shall pay to landlord, as Additional Rent, an amount equal to One Hundred Dollars ($100.00) per day for each
day such statement is overdue.
Section 4.06 Tenant's Records and Audit.
(a) Tenant's Records. Tenant covenants and agrees that Tenant's: business records and those of any
subtenant, licensee or concessionaire upon the Premises shall be. maintained In accordance with generally -accepted
accounting principles. Tenant shall keep, at the Premises or at Tenant's home or regional office, complete and accurate
books of accounts and records with respect to all operations of the business conducted in or from the Premises, including
the recording of Gross Sales and the receipt of all merchandise and other goods Into and the delivery of aft merchandise
and other goods from the Premises during the Term; Tenant shall retain such books and records, copies of all tax reports
and tax returns submitted to taxing authorities, as well as copies of contracts, vouchers; checks, inventory records and
other documents and papers in any way relating to the operation of such business for at least three (3) years from the end
of the period to which they are applicable.or, if any audit is commenced or if a controversy should arise between the
parties hereto regarding Rent, until such auditor controversy Is terminated even though Tenant's retention period may
continue after the expiration of the Term or earlier termination of this Lease.
(b) Landlord's Rioht to Inspect. Landlord's acceptance of Percentage Rent payments shall be without
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June 17,'2008 % Trachtman/GO 10
prejudice to Landlord's examination and audit rights. Tenant's books and records (including the books and records of any
subtenant, licensee, concessionaire and other occupant) shall be open at all reasonable times during the aforesaid
retention period to the Inspection of Landlord or its duly authorized representatives, upon ten (10) days prior notice to
Tenant, and Tenant shall make such books, records and other materials available at the Premises for such examination
and audit at Landlord's request. Landlord and its representatives shall have full and free access to such books and
records and the right to require explanation from Tenant, its agents and employees.
(c) Tenant's Failure g Comply. If such audit shall disclose that (1) any of the Yearly Reports understate
Gross Sales during the reporting period of the report to the extent of two percent (2%) or more; or (ii) Tenant has not
recorded Gross Sales or kept books of accounts and records for the period required by Article 4; or (ill) if Tenant shall be
delinquent in delivering to Landlord the Yearly Report or Monthly Reports for two (2) consecutive months or more than
twice in any Lease Year, then such understatement, failure or delinquency shall be an 'Event of Default" (as defined in
Section 16.01). In addition, in the event of such understatement or failure, Landlord shall have the right to bill Tenant the
amount of any Percentage Rent deficiency and the reasonable cost of said audit, all of which shalt be paid by Tenant
within ten (10) days after demand. Such deficiency will bear Interest at the "Default Rate" (defined in Section 16.03) from
and after the date it should have been paid until paid.
(d) Remedv. In the event Tenant violates the provisions of Sections 4.06(x) or (b) and, as a result of such
violation, Landlord or its authorized representative Is unable to conduct a proper examination and/or audit, the parties
agree that Landlord shall have been deprived of an Important right under this Lease and, as a result, will suffer damages
in an amount which is not readily ascertainable. Therefore,' in such event, Landlord shall have the right to collect and
Tenant agrees to pay, as liquidated damages and not as a penalty, an amount equal to twenty percent (20%) of the
greater of (1) Percentage Rent reported for the period or periods In question, or (II) the annual Minimum Rent payable for
the period or periods in question. Such liquidated damages are In addition to and not in lieu of any other remedies (at law
or in equity) which Landlord may have under this Lease.
Section 4.07 AdAWonatRent.
Tenant shall pay to Landlord or a third party designated by Landlord, as additional rent all sums of any nature
required to be paid by Tenant pursuant to this Lease other than Minimum Rent and `Percentage Rent (herein sometimes
collectively called "Additional Rent"), whether or not expressly called "Additional Rent".
Section 4.08 Latelinsufficient Funds Charas,
In the event Tenant fails to pay when due any installment of Rent or other sum payable by Tenant under this
Lease, Landlord may charge Tenant, as Additional Rent, a "Late Charge' in the amount of.the greater of (1) Two Hundred
Fifty Dollars ($250:00) or (li) five cents ($:05) per dollar overdue for the purpose of defraying Landlord's administrative
expenses incident to the handling of such overdue payments. If Tenant pays any installment of Rent by check and such
check Is returned for insufficient funds or other reasons not the fault of Landlord, then Tenant shall pay Landlord, on
demand, a processing fee of One Hundred Dollars ($100.00) per returned check plus all applicable Late Charges. If three
(3) checks are returned for insufficient funds or other reasons not the fault of Landlord, ail subsequent payments to
Landlord by Tenant shall be in the form of either >a certified or cashier's check.
Section 4.09 Where Rent Payable and to Whom; No Deductions.
Rent payable by Tenant under this Lease shall be paid when due without prim demand (unless such prior
demand is expressly provided for in this. Lease), shall be payable without any deductions or setoffs or counterclaims
whatsoever (except for credits expressly permitted by this Lease), and shall be paid by Tenant to Landlord at Landlord's
Rent Payment Address set forth in the Fundamental Lease Provisions or to such payee and/or at: such other place as may
be designated from time to time by notice from Landlord to Tenant. At the end of the Term, provided Tenant is not in
default, Landlord shall refund to Tenant any amount of excess Rent paid to Landlord and any other amounts due from
Landlord to Tenant.
Section 4.10 Security Deposit.
The sum referred to as the security deposit in the Fundamental Lease Provisions is herein called the "Security
Deposit". The Security Deposit shall be deemed the sole property of Landlord and wili be held by Landlord, without
interest accruing in favor of Tenant, as security for Tenant's faithful performance of all of the terms and conditions of this
Lease for and during the Term. Provided Tenant is not in default under this Lease, Landlord shall return the Security
Deposit to Tenant at the expiration of the Term. In no instance shall the amount of the Security Deposit be considered .a
measure of liquidated or other damages. Landlord, in its sole discretion, may apply all or any part of the Security Deposit
in total or partial cure of any breach or other default or obligation of tenant. Such application shall not deprive Landlord of
any other rights or remedies Landlord may have and shall not constitute a waiver or assumption by Landlord. In the event
of such application, Landlord shall have the right to require Tenant to restore the Security Deposit to its original amount by
giving notice to Tenant, and Tenant shall immediately restore the Security Deposit to its original amount. In the event
Landlord transfers its interest in this Lease, the Security Deposit may be turned over by Landlord to Landlord's grantee or
other transferee, and upon any such turnover of the Security. Deposit, Tenant hereby releases Landlord and its Agent of
any and all liability or other obligation with respect to the Security Deposit, its application and return, and Tenant agrees to
look solely to such grantee or other transferee. The provisions of this Section shall also apply to subsequent grantees
and transferees.
ARTICLE 5: REAL ESTATE TAXES AND ASSESSMENTS
Section 5.01 Taxes.
(a) Taxes. Tenant shall pay to Landlord in each Tax Year, as Additional Rent, Tenant's share of all real
estate and other ad valorem taxes and other assessments, impositions, excises and other governmental or quasi-
governmental charges of every kind and nature (including, but not limited to, general and special assessments, special
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service district taxes, impact fees, sewer and fire district assessments, foreseen as well as unforeseen, and ordinary as
well as extraordinary, including payments in lieu of taxes) with respect to the Shopping Center and all improvements
thereon or any part thereof. Such taxes and assessments, including Landlord's reasonable costs and expenses (including
statutory interest, if any) in obtaining or attempting to obtain any refund, reduction or deferral of such taxes are collectively
called the "Taxes" in this Lease.
(b) Tax Year. "Tax Year" shall mean the twelve (12) full calendar months of the Rent Term commencing with
the January 13t immediately following the Rent Commencement Date and ending December 31'0 of such calendar year
and each succeeding twelve (12) month period thereafter commencing in the Term; provided, however, the first Tax Year
shall commence on the Rent Commencement Date and terminate on the Immediately succeeding December 318t. If the
Rent Term commences or terminates (other than by reason of Tenant's default) on a day other than the first or last day of
a Tax Year, Tenant's Tax Charge for such Tax Year shall be equitably prorated. Landlord shall have the right to change
the structure of the Tax Year to reflect the local billing customs.
Section 5.02 Tenant's Tax Charge.
(a) Tax Charge. Tenant's share of the Taxes in each Tax Year (the Tax Charge") shall be an amount equal
to the amount obtained by multiplying the total of all Taxes payable during such Tax Year for the Shopping Center less all
amounts paid as Taxes to Landlord by the occupants of any Excluded Areas (as defined in Section 1.02) by a fraction, the
numerator of which shall be the GLA of the Premises and the denominator of which shall be the average of the total
amount of square feet of the GLA of the Shopping Center in effect on the last day of each calendar month of the Tax
Year.
(b) Payment of Tax Chww. Tenant shall pay the Tax Charge as Additional Rent during the Rent Term in
equal monthly installments, in advance, without demand or setoff, in an amount equal to one-twelfth (1/12'") of the Tax
Charge as calculated above in paragraph (a). Landlord estimates Tenant's Tax Charge for the first Tax Year to be the
amount set-forth In Section 1.01(h) of this Lease multiplied by the GLA of the Premises. Landlord may revise its estimate
and may adjust such monthly payment at the end of any calendar month. The first such installment shall be due and
payable by Tenant on the Rent Commencement Date (prorated for the remaining number of days in the Tax Year).
Thereafter, subsequent Installments shall be due and payable at the beginning of each ensuing calendar month during the
Rent Term. In addition to the payments provided for in the Immediately preceding sentences, If Landlord shall have
prepaid all or a portion of the Taxes applicable to the Rent Term prior to the Rent Commencement Date, Tenant's Tax
Charge shall include Tenants share of such Taxes on or before the Rent Commencement Date. Landlord shall send to
Tenant -an Invoice setting forth Tenant's share of such Taxes, together with copies of receipted bills evidencing Landlord's
payment of such Taxes.
(c) Notification of Tax-Charge. After Landlord has received the Tax bills for each calendar year, Landlord will
notify Tenant of (0 the amount of Taxes on which the Tax Charge is based, (it) the amount of any refund, reduction or
deferral expenses, (10) the total GLA of the Premises and the Shopping Center (less the Excluded Areas) on which the
Tax Charge is based and (iv) the amount of the Tax Charge, If the aforesaid monthly payments on accent of the Tax
Charge for a -given calendar year are greater than Tenant's share of the Taxes payable for a given calendar year, Tenant
shall receive a credit from Landlord for the excess against Installments of the Tax Charge next becoming due to Landlord;
and if said payments are less than Tenants share, Tenant shall forthwith pay Landlord the difference.
Section 5.03 Tenant's Additional Tax Oblinations.
(a) Additional Tax Obligetions. Tenant shall pay, before delinquent, any and all taxes, assessments,
Impositions, excises, fees (including any impact fees) and other charges, levied, assessed or imposed by governmental or
quasi-governmental authorities upon Tenant or its business operation, or based upon the use or occupancy of the
Premises, or upon Tenant's leasehold interest, trade fixtures, furnishings, equipment, leasehold improvements (including,
but not limited to, those required to be made pursuant to Tenant's Work) alterations, changes and additions made by
Tenant, merchandise and personal property of any kind owned. Installed or used by Tenant in, from or upon the Premises.
If the property of Landlord is included in any of the foregoing items, the aforesaid taxes, assessments, impositions,
excises, fees and other charges shall nonetheless be paid by Tenant as herein provided. Tenant shall pay, when due and
payable, any sales tax or other tax, assessment, imposition, excise or other charge now or hereafter levied, assessed or
imposed upon or against this Lease or any Rent or other sums paid or to be paid hereunder, or Tenants, Landlord's or
Agent's interest in this Lease or any Rent or other sums paid or to be paid hereunder. Should the appropriate taxing
authority require that any tax, assessment, imposition, excise or other charge referred to in this Section 5.03(a) be
collected by Landlord or Agent on behalf of the taxing authority, then such tax, assessment, imposition, excise or other
charge shall be paid by Tenant to Landlord or Agent monthly as Additional Rent in accordance with the terms of any
notice from Landlord or Agent to Tenant to such effect. The taxes, assessments, impositions, excises, fees and other
charges described in this Section 5.03(a) shall be the obligation of Tenant and not Landlord or Agent and, if imposed on
Landlord or Agent, Tenant shall pay the satire to Landlord within thirty (30) days after receipt of each bill.
ARTICLE 6: UTILITIES
Section 6.01 Services.
(a) Utilities and HVA .. Tenant agrees to connect to and use the utilities, facilities, and/or services (including
electricity, sewer, water treatment, water, heating, ventilation and/or air conditioning, gas, telephone, A.D.T. or other alarm
system, and any other utility facility and/or service) supplied to or for the Premises by Landlord or the applicable utility
company, municipality and/or other governmental body or authority supplying the utility service and to pay Landlord or the
applicable utility company or other supplier thereof for such utilities. Exhibit B sets forth those utilities and Exhibit C sets
forth those heating, ventilation and/or air conditioning services which shall be provided to the Premises by Landlord as
well as the manner in which charges for their consumption shall be determined and paid by Tenant. Unless otherwise
provided in Exhibit B or C, Landlord shall not be responsible for providing any utility or heating, ventilation and/or air
conditioning service to the Premises or for providing meters or other devices for the measurement of utilities supplied to
the Premises, and Tenant shall arrange for the furnishing to the Premises of such utility services as it may require, as well
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as for the installation of all such meters or other devices.
(b) SUpDIy. Notwithstanding the foregoing, if permitted by law, Landlord shall have the right at any time and
from time to time during the Term to either contract for service from a different company or companies providing utility
service (each such company shall hereinafter be referred to as an "Alternate Service Provider") or continue to contract
for service from the current utility service provider. Landlord may, after thirty (30) days notice to Tenant, cease to furnish
any one or more of the utility services to the Premises without any responsibility to Tenant except to connect, at Tenanrs
sole cost and expense, Tenanrs distribution facilities with another source for the utility service discontinued. Landlord
shall incur no liability to Tenant and this Lease shall not be affected in the event that any utility becomes unavailable from
any source of supply or for any reason. Landlord, in its sole discretion, shall have the right from time to time to alter the
method and source of supply to the Premises of electricity or any other utility, and Tenant agrees to execute and deliver to
Landlord such documentation as may be required to effect such alteration.
(c) Capacity. Tenant shall not at any time overburden or exceed the capacity of the mains, feeders, ducts,
conduits, or other facilities by which such utilities are supplied to, distributed in or serve the Premises.
(d) Energy Management System.. Landlord has installed or may install an Energy Management System to
efficiently conserve utility usage and, if installed, Tenant agrees to pay monthly the sum of Sixty Dollars ($60.00) as
Tenanrs-share of the Energy Management System purchase, installation, maintenance and upgrade costs.
Section 6.02 Servtce Chardes.
(a) • Se Charges. In the event any utilities used in the Premises are supplied by Landlord, Tenant shall
pay to Landlord as Additional Rent at times and In the manner hereinafter set forth, charges for certain utility and heating,
ventilation and/or air-conditioning services as set forth herein. Such charges are collectively called the "Service
Charges".
. (b) Failure to Pay. If Tenant fails to make any such payment to Landlord within ten (10) days from the date
payment is due, or upon failure of Tenant to pay any other sums of Rent or charges due under this Lease in full, Landlord
may, without limitation, out off and discontinue any water, energy and sanitary services furnished to or for the Premises by
Landlord, without any liability to Landlord. Any action by Landlord pursuant to the provisions of this Section 6.02 shall not
be construed as an eviction or disturbance of possession or an election by Landlord to terminate this Lease.
(c) Interruption of Services. No Waste. Landlord shall not be liable or responsible for any loss, damage or
expense Tenant may sustain or incur by reason of any change, failure, curtailment, interruption, disruption, "brown our or
defect in the supply or character of any utility supplied to the Shopping Center or Premises or if the quantity or character
of the utility supplied by Landlord or any service provider Is no longer available or suitable for Tenanrs requirements and
none of the foregoing shall constitute an actual or constructive eviction or entitle Tenant to any abatement or diminution of
Rent or relieve Tenant from any of Its obligations under this Lease. Tenant shall operate the Premises in such a manner
as shall not waste energy or water or burden or harm sanitary service. Landlord may cease to furnish any one or more of
said services without responsibility to Tenant except to connect the service facilities with such other nearby source as may
be available for the services so discontinued.
(d) Sprinkle, r Charge. Tenant agrees to pay Landlord the Sprinkler Charge as set forth in Section 1.01(g) of
this Lease. Charges will be based on a per square foot basis.
(e) Trash and Garbage Removal. Tenant shall be solely responsible for trash and garbage removal from the
Premises, including the placing of all trash and garbage In containers for such purpose. It provided, Tenant shall utilize
the containers provided by Landlord or Landlord's trash removal service. In the -event Landlord elects to furnish such
service to Tenant itself or by contracting with a third-party vendor, Tenant agrees to use only, the service provided by
Landlord or its contractor, as applicable, and to pay for such service (including, without limitation, both the cost of leasing
containers and the cost of removal) monthly, either as Additional Rent paid to Landlord in accordance with a schedule of.
charges to be established by Landlord (which Landlord may include among the Services Charges) or, if billed directly by <a
third-party vendor, directly to such vendor (the "Refuse Handling Charge"). The failure to pay timely any third-party
vendor for the Refuse Handling Charge shall be an Event of Default. In no event shall Tenant be obligated to pay
Landlord more for such trash and garbage removal service (ii Landlord is providing such service) than the prevailing
competitive rates of reputable independent trash removal contractors for service similar to that provided by Landlord.
Tenant shall, at its expense, comply with all trash recycling procedures in effect from time to time. Tenant,shall not
dispose of any Hazardous Substances or Items regulated by Environmental Laws (both as defined in Section 7.07) in any
trash facilities provided by Landlord; rather, Tenant shall arrange, at its sole cost and expense, to have all such items
removed from the Premises and Shopping Center in accordance with all Governmental Requirements (as defined in
Section 7.07).
(f) Telephone. All telephone service required by Tenant for its Premises shall be obtained by Tenant and
shall be installed by the appropriate utility company. All charges for telephone service (including the Installation) shall be
billed directly to Tenant by the utility company providing the service. Tenant shall pay to the appropriate utility company
all charges as and when they become due and payable.
ARTICLE 7: USE OF PREMISES
Section 7.01 Sole Use and trade Name.
Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously use and operate all of the
Premises for the Permitted Use and under the Trade Name set forth in the Fundamental Lease Provisions. Tenant
agrees that If the Premises is used for a use or under a trade name not set forth in the Fundamental Lease Provisions
without Landlord's prior written consent, such conduct shall constitute an Event of Default.
Tenant shall, at its expense, procure any and all governmental licenses and permits required for the conduct of
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business in or from the Premises and shall at all times comply with the requirements of each such license and permit.
Landlord does not represent or warrant that it will obtain for Tenant or that Tenant will be able to obtain any license or
permit.
Section 7.02 ors.
Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously operate, conduct its
business within and otherwise use the Premises in accordance with the terms and conditions of this Lease (unless the
Premises is rendered unfit for occupancy by reason of fire or other casualty, in which event Article 12 shall control).
Tenant will keep the Premises open for business to the public at least every Monday through Saturday from 10:00 am
until 8:30 pm and every Sunday from 11:00 am until 8:00 pm, or as otherwise required by Landlord. -In the event Tenant
violates the foregoing, in addition to any other rights or remedies available to Landlord, at Landlord's option, Tenant's
Break Point shall be reduced on a per diem basis for each violation of the foregoing and Tenant shall pay to Landlord the
Percentage Rent so computed by Landlord. The per diem reduction shall be the amount of the applicable Break Point
divided by three hundred sixty-five (365) for each violation. Tenant agrees that Landlord may change the business hours
from time to time to reflect local custom or seasonal shopping patterns provided that such changes are uniformly applied
to a majority of retail tenants in the Shopping Center. The requirements of this Section are subject to any and all
Governmental Requirements.
Section 7.03 Operational Requirements.
(a) Sales. Tenant will not conduct or permit to be conducted any auction, fire, bankruptcy, going-out-of-
business, or similar sale or utilize any unethical business methods; however, this provision shall not preclude the conduct
of periodic, seasonal, promotional or clearance sales.
(b) Nuisance Uses. Tenant will not distribute or cause to be distributed at or in the Shopping Center any
handbills, notices, or other advertising. Tenant will not conduct or permit any activities that might constitute a nuisance,
which are prurient, or otherwise generally not considered appropriate in _ accordance with Landlord's standards of
operation for the Shopping Center. Notwithstanding anything contained herein to the contrary, Tenant is specifically
prohibited from selling or distributing any of the following: (1) pipes of the type and nature commonly associated with
marijuana smoking (e.g. "water pipes" or "bongs"), "roach dips", "cocaine spoons", and all other types of smoker's novelty
items, materials -or paraphernalia which are or may reasonably be construed to be intended for use in connection with
narcotics or other unlawful substances; (ii) sexually explicit merchandise; and (iii) other merchandise of an offensive
nature.
(c) Sensory'Offens . Tenant will not use or permit the use of any apparatus for sound/light reproduction or
transmission including loudspeakers, phonographs, radios, televisions, or any musical. instrument In such manner that the
sounds shall be audible beyond the interior of the Premises. Tenant will keep all mechanical apparatus free of vibration
and noise which may be transmitted beyond the confines of the Premises; will not cause or permit strong, unusual,
offensive, or objectionable sound, sights, odors, fumes, dust, or vapors to emanate or be dispelled from the Premises.
Tenant will not Install any antennae or other communication equipment anywhere other than in the interior of the Premises
without Landlord's prior written consent.
(d) SNDDin 3 and Receiving. Tenant will not receive or ship articles of any kind except through the facilities
provided for that purpose by Landlord and will notpermit any delivery of goods, supplies, merchandise, or fixtures to or
from the Premises through any portion of the enclosed mall unless the Premises has no entrance other than on the
enclosed mail, in which case Tenant shall use its best efforts to schedule deliveries outside Shopping Center business
hours, except as otherwise approved in writing by Landlord. Tenant will not permit the parking or standing of trucks,
trailers, or other vehicles or equipment engaged in loadinglunloading in a manner which may Interfere with the use of any
Common Areas or any pedestrian or vehicular use.
(e) Pteanliness. Tenant will keep clean the inside and outside of all glass in the doors and windows of the
Premises and will replace any cracked or broken glass with glass of the same kind, size and quality. Tenant will maintain
the Premises at its own expense in 'a dean, orderly and sanitary condition, free of Insects, rodents, vermin, and other
pests, and will use an exterminator designated by Landlord and at times designated by landlord. Tenant will not burn or
permit undue accumulation of garbage, trash, rubbish and other refuse, will keep such refuse in proper containers In the
interior of the Premises until so removed from the Premises, and will (subject to Section 6.04) remove the same from the
Premises to compactors or other, receptacles designated by Landlord.
(f) Sacurity and Li inn. Tenant will provide or cause to be provided all security within the Premises as it
deems appropriate for its licensees, invitees and employees. Tenant will also provide adequate lighting during such
periods as the Premises is open for business.
(g) Displays and ?Olicitations. Tenant will not use or permit to be used any space outside of the Premises for
the display or sale or offering for sale of any merchandise or for any other business, occupation, or underta ing
k. Tenant
will not permit the use of any portion of the Premises or Common Areas .for solicitations, demonstrations or any activities
inconsistent with reasonable standards of a first class shopping mall, in Landlord's reasonable determination.
(h) Staff and Merchandise. Tenant will maintain at all times a full staff of employees and a complete stock of
merchandise consistent with the Permitted Use and will conduct its business to maximize Gross Sales.
(i) Labor Relations and an -Billing.. Tenant will conduct its labor relations and its relations with employees
in such a manner as to avoid all strikes, picketing, boycotts or hand-billing at or about the Premises and the Shopping
Center. Tenant further agrees that if in connection with any work done by or for Tenant in or about the Premises there is
a strike, picketing, boycotting, hand-billing or other activity objectionable to Landlord, Tenant shall remove or cause to.be
removed from the Premises and the Shopping Center all persons, to the extent not prohibited by law, until such strike,
picketing, boycotting, hand-billing or other activity ceases and the cause thereof is settled to Landlord's satisfaction.
U) Grease Trap and Exhaust. Tenant will, if applicable, install, properly maintain and routinely clean out a
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grease trap and either a "black iron duct" or other self-contained venting and exhaust system acceptable to Landlord.
Such items shall be installed in a manner, of materials, and at a location approved in advance by Landlord and shall, at
Landlord's option, connect to trunk facilities, if any, supplied by Landlord.
(k) Plum in . Tenant will not use the plumbing facilities for any purpose other than that for which they were
constructed and will not dispose of any damaging or injurious substance therein.
(1) Vending Machine. Tenant will not install, operate, or permit to be installed or operated any coin or token
operated vending machine, game machine, pinball machine, pay telephone, pay locker; pay toilet, scale, amusement
device, or machine for the sale of beverages, foods, candy, cigarettes or other items, except solely for use by Tenant's
employees in non-sales areas and not to exceed collectively two (2) machines or devices.
(m) LMMM Pu_ __EpgM. Tenant covenants that the Premises shall be used only and exclusively for lawful
purposes. Tenant will comply with and observe all rules and regulations established by Landlord from time to time and
will conduct its business in the Premises in a dignified manner.
(n) Audio/Video Cassettes. Tenant will not store, display, rent, or sell any audio or video cassettes or
compact discs.
(o) Remodel -First Class .nndl,., Tenant shall maintain the Premises In first-class condition throughout
the Term of this Lease and shall refurbish all worn surfaces to bring the same to tike new condition, at Tenant's sole cost
and expense, as same is reasonably necessary during the Term.
(p) Sh222frw Carts. Tenant will not permit any shopping carts owned or leased by Tenant in the Common
Areas, even if taken there by customers.
{q) Smoking. Tenant will not permit smoking in the Premises.
(r) Recycling. Tenant will participate in any recycling programs Implemented by Landlord at the Shopping
Center.
Section 7.04 Emolovee Parkins Areas.
Landlord, from time to time, may designate that particular portions of the Shopping Center parking areas (the
"Employee Parking Areas") are to he used by Tenant and its employees, or other individuals working at or from the
'Premises and, in such event, such employeestindividuais shall park their vehicles only In the Employee Parking Areas.
Tenant shall furnish Landlord with a list of Tenant's and employees' vehicle license numbers within fifteen (15) days after
Tenant opens for business in the Premises and thereafter, at Landlord's request and within five (5) days of such request,
Tenant shall notify Landlord in writing of any addition, deletion or other change to or from such list. Tenant shall notify
each employee of the provisions of this Section prior to each employee commencing employment or work at or from the
Premises. If Tenant's employees do not park their vehicles In the 'Eniployee Parking Areas as required; Landlord may
give Tenant notice of such violation. If Tenant does not act to correct such violation within two (2) days after Landlord's
notice of violation is given, Tenant shall pay to Landlord, as Additional Rent, an amount equal to One Hundred Dollars
($100.00) per day per violating vehicle. For any subsequent violations, sakt,charge shall commence without the necessity
of further notice and Landlord shall have the right to have the violating vehicles towed at Tenant's expense.
Section 7.05 Signs and Advertising.
Tenant shall not place or permit to be placed on the roof, the exterior of the Premises, or on the glass of any
window or door of the Premises, any sign, canopy, banner, decoration, lettering or advertising matter (collectively a
"sign") without Landlord's prior written approval. Tenant shall submit to Landlord reasonably detailed drawings of its
proposed signs for review and approval by Landlord prior to utilizing same; however, Tenant may, without Landlord's
approval, use in the storefront professionally made, reasonably sized signs Indicating prices, styles, and like information.
All signs shall be insured and maintained by Tenant in good condition, operating order, and repair. Flashing signs are
prohibited.
Landlord shall have the right, after twenty-four (24) hours prior written notice to Tenant and without liability for
damage to the Premises reasonably caused thereby, to remove any items displayed or affixed in or to the Premises or
Shopping Center which Landlord determines (in Its reasonable judgment) to be in violation of the provisions of this
Section.
Tenant will keep the storefront sign and display windows in the Premises lighted during all periods that the
Shopping Center is open to the public and for thirty (30) minutes after required business hours and for such other periods
as reasonably required by Shopping Center rules and regulations.
Section 7.06 Radius Restriction.
(a) Radius Restriction. Tenant covenants and agrees that during the Term neither Tenant nor any "Affiliate
of Tenant" (hereinafter defined) shall directly or indirectly own, operate, manage or have a financial interest in any
business within the "Radius" (as defined in the fundamental Lease Provisions) which is simitar to that of Tenant or which
sells or displays, directly or indirectly, merchandise or other goods or services similar to those sold, offered, or displayed
by Tenant at or from the Premises (the "Competing Store") as measured from the property fine of the Shopping Center
nearest to the Competing Store In a straight line without regard for road mileage (the foregoing covenant hereinafter
called the "Radius Restriction"). "Affiliate of Tenant" means a proprietorship, corporation, partnership, unincorporated
association, or other person or entity "controlling," "controlled" by, or under common "control" with Tenant or any person
or entity serving as Guarantor, if any, of this Lease. The words "controlling," "controlled," and "control" shall have the
meanings given them under the Securities Exchange Act of 1934, as amended.
(b) Violation. If Tenant violates the Radius Restriction, then, in addition to Landlord's other rights and
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June 17, 2008 1 Trachtrnan/GO 15
remedies, Landlord shall have the right to (i) add the Gross Sales of the Competing Store to the Gross Sales made by
Tenant at the Premises for the purpose of computing Percentage Rent or (11) increase the annual amount of Minimum
Rent payable thereafter by an amount equal to the highest Percentage Rent payable by Tenant in any calendar year prior
to the opening of such Competing Store. The Gross Sales of the Competing Store shall be determined by applying the
definition of Gross Sales in this Lease to the Competing Store. Landlord shall have all rights of inspection of books and
records with respect to Competing Stores as it has with respect to the Premises, and Tenant shall furnish to Landlord
such Monthly Reports and Yearly Reports from the Competing Stores as it is required to furnish with respect to the
Premises. This Radius as of the date of execution of this Lease provided Tenant as disclosged Stores open and operating within the
Competing Store prior to execution of this Lease.
Section 7.07 Compliance with Laws: Hazardous Substances.
(a) Co 1ghA0 a with Laws. Tenant agrees, at its own expense, to comply with all applicable federal, state
and local laws, rules, regulations, ordinances, guidelines, judgments and orders and all recommendations and
requirements of any public or private agency having authority over insurance and/or its rates (including insurance
underwriters and insurance rating bureaus), now in effect or hereafter enacted or passed during the Term insofar as the
Premises and any of Tenant's Permitted Use, signs, operations, or occupancy of the Premises by Tenant are concerned
including, without limitation, all Environmental Laws, the Americans with Disabilities Act, zoning ordinances and related
land use restrictions, building codes, and fire odes (collectively, the "Governmental Requirements"). As used herein,
"Envlronmentat Laws" means any existing or future federal, state or local law, rule, regulation, order or directive
pertaining to the environment, human health or safety, worker protection, or Hazardous Substances.
(b) Heia_r_dous Sub?tan-es. Tenant shall not use the Promises or the Shopping Center for the generation,
manufacture, refining, treatment, transportation, storage, handling, release, or disposal of hazardous materials, hazardous
waste, hazardous substances, pollutants, toxic materials (Including, without limitation, asbestos, polychlorinated
biphenyls, petroleum products, hydraulic oils, radon gas, urea formaldehyde, flammable explosives, propane, radioactive
materials, and lead-based paint), or any other substances or materials which are now or hereafter regulated under any
Environmental Laws (such materials, collectively, "Hazardous Substances"). Tenant may bring to and use at the
Premises Hazardous Substances Incidental to its normal business operations in solely de minimis quantities and strictly in
accordance with all Environmental Laws. Tenant shall store and handle such substances in strict compliance with all
Environmental Laws.
(c) Storage Tanks. Tenant will not, without obtaining Landlord's prior written approval, which approval may
be withheld In Landlord's sole discretion, install any storage tank (including, but not limited to, any tank designed to store
Hazardous Substances, liquid or compressed gas of any kind), whether above or underground, at the Premises or in the
Shopping Center. If Landlord consents to such installation, Tenant will comply with all Governmental Requirements and
underwriter requirements concerning the installation, operation, and closure of such storage tank. Upon termination of
this Lease, Landlord shall have the option of requiring that Tenant, at Tenant's sole cost and expense, perform tests
relating to the condition of such storage tank and/or remove any storage tank installed by Tenant and associated
contaminated material. Tenant shall be deemed the owner and operator of any storage tank installed by Tenant, its
agent, or contractor. At Landlord's request, Tenant shall relocate such storage tank at Tenant's expense to another
-location acceptable to Landlord.
(d) Release Nciftation, Tenant shall notify Landlord immediately upon learning that any provision of this
Section 7.07 has been violated or that there has been a release, discharge or disposal of any Hazardous Substances at
the Premises or at the Shopping Center. Tenant shall provide promptly to Landlord copies of all correspondence to or
from third parties regarding Hazardous Substances in or originating from Tenant's operations at the Premises or at the
Shopping Center.
(e) Right to Inspect. Landlord shall have the right at all times during the Term of this Lease to inspect the
Premises and conduct tests and investigations and take samples to determine whether Tenant Is In compliance with the
provisions of this Section 7.07, and to request lists of all Hazardous Substances used, stored, or located at the Premises.
The cost of all such inspections, tests, and investigations shall be borne by Landlord unless such inspections, tests, and
investigations reveal a violation of any Environmental Laws by Tenant, its Invitees or licensees, in which case such costs
shall be borne by Tenant.
(f) Cocoa Won in Regard to Environmental La?Ars. Tenant shall cooperate with Landlord in obtaining
approval of any transfer of the Stropping Center under Environmental Laws. Specifically, Tenant agrees that it shall (I)
execute and deliver all affidavits, reports, responses to questions, applications or other flings required by Landlord and
related to Tenant's activities at the Premises, (it) allow inspections and testing of the Premises during normal business
hours, and (iii) with respect to the Premises, perform any requirement reasonably requested by Landlord necessary for
the receipt of approvals under Environmental Laws, provided the foregoing shall be at no out-of-pocket cost or expense to
Tenant (except for dean-up and remediation costs arising from Tenant's violation of this Section 7.07).
(g) Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found In buildings In Florida. Additional information regarding radon and radon
testing may be obtained from the county health department.
ARTICLE 8: COMMON AREAS AND OPERATING COSTS
Section 8.01 Landlord's Control and Maintenance of Common Areas.
(a) Landlord's Control. All Common Areas in or about the Shopping Center shall be subject to Landlord's
exclusive control and management. Landlord shall operate, manage, equip, police, light, surface, maintain, repair and
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June 17, 2008 % Trachtman/Go 16
replace (or cause all of the same to occur to) the Common Areas in good and reasonable condition and manner and
Landlord shall have the sole right and exclusive authority to employ and discharge all personnel with respect thereto
and/or hire independent contractors to perform the same. In addition, Landlord may provide (or cause to be provided)
security in the Common Areas at a level determined by Landlord.
(b) Right to C_ lose common Area, Landlord may at any time and from time to time close all or any portion of
the Common Areas to make repairs or changes or to such extent as may, in Landlord's opinion, be necessary to prevent a
dedication thereof or the accrual of any rights to any person or to the public therein, and dose temporarily any or all
portions of the Common Areas and perform such other acts in and to Common Areas as, in the exercise of good business
judgment, Landlord shall determine to be advisable with a view to the Improvement of the convenience and use thereof by
occupants and tenants, their employees and invitees. Landlord may at any time and from time to time exclude and
restrain any person from use or occupancy of any of the Common Areas excepting, however, Tenant, other tenants of
Landlord, and bona fide invitees of either who make use of these areas for their intended purposes and in accordance
with the rules and regulations established by Landlord.
(c) Landlord's 1Jse. Landlord shall at all times have the right to utilize the Common Areas for promotions,
exhibits, camivel-type shows, rides, indoor or outdoor shows, displays, automobile and other shows or events; the leasing
or iicensing of kiosks, push carts and food facilities; landscaping; seating areas; seasonal displays and decorative items;
and any other use which, to Landlord's judgment, tends to attract customers to or benefit the customers of the Stropping
Center.
Section 8,02 Chanaes by Landlord.
As between Landlord and Tenant, Landlord (or others entitled to) shall at all times and from time to time have the
right and privilege of determining the nature and extent of the Common Areas and of making such changes,
rearrangements, additions or reductions in and to the Common Areas which, in its opinion, are deemed to be desirable or
which are made as a result of any Governmental Requirements. Such rights 'shall include, but not be limited to, the
following:
(I) changing or modifying and adding to or subtracting from the sizes, locations, shapes and arrangements of
parking areas, entrances, exits, driveways, parking aisle alignments, and other Common Areas;
(ii) altering the direction and flow of traffic;
(li4 restricting parking by Tenent's employees to designated areas;
(iv) constructing surface, sub-surface or elevated parking areas and facilities;
(v) establishing and changing the level or grade of parking surfaces;
(vi) enforcing parking charges (by meters or otherwise);
(vii) installing landscaped areas;
(viii) constructing additional buildings or improvements on the Common Areas or elsewhere and adding to or
subtracting from the buildings in the Shopping'Center, including building additional stories on anybuikiings;
(ix) constructing roofs, walls, and.any other improvements over, or in connection with any partof, or all of, the
Common Areas in order to enclose same;
(x) making alterations, renovations, reductions, or additions anywhere within the Common Areas or other
parts of the Shopping Center or upon any lands or improvements added thereto; and
(xi) doing and performing such other acts in and to the Common Areas as Landlord In its sole discretion,
reasonably applied, deems advisable for the use thereof by tenants and their customers.
Section 8.03 Rules and Regulations.
Landlord shall have the right, from time to time, to establish, modify and enforce reasonable rules and regulations
with respect to the use, operation and maintenance of all Common Areas provided that all such rules and regulations
affecting Tenant and its invitees and employees shall apply equally and without discrimination to substantially all of the
retail tenants in the building In which the Premises is located or substantially all retail tenants engaging in certain acts or
of a certain use. The rules and regulations may include, but shah not be limited to the hours during which the Common
Areas shall be open for use. Tenant agrees to comply with all such rules and regulations.
Section 8.04 Tenant's Rights and Obligations.
Tenant's rights in and to the use of the Common Areas shall at all times be subject to the rights of others to use
the same in common with Tenant, and it shaft be Tenant's duty to keep the Common Areas free and clear of any
obstructions or interferences created or permitted by Tenant or resulting from Tenant's operations. Tenant and its
employees and invitees are, except as otherwise provided in this Lease, authorized and privileged during the Term to use
the Common Areas for their respective intended purposes in common with other, persons. Tenant's right to use any
meeting room or auditorium in the Common Areas shall be subject to such schedules and payment of fees or charges as
Landlord may from time to time adopt.
Sec=tion 8.05 OOeratian Costs.
Deleted:
Section 8.06 Terranrs Share of Operatina Costs,
Deleted.
ARTICLE 9: MAINTENANCE AND REPAIR; ALTERATIONS
Section 9.01 Structural Repairs by Landlord
Landlord will keep in good repair structural columns, structural portions of the floors (excluding floor tile; carpeting,
terrazzo or other floor coverings), the roof of the Shopping Center, and the exterior face of service corridor walls, provided
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June 17, 2008 1 Trac hbnan/GO 17
Tenant gives Landlord written notice of the necessity for and nature of such repairs. Any difference in floor level, shifting
of floor slab, or deviation in finished floor height resulting from the insertion or construction of an expansion joint or strip in
the floor slab shall not be deemed a structural defect requiring repair by Landlord, but, rather, a normal construction
practice which shall be Tenant's responsibility to appropriately plan for in its construction and use of the Premises. If
Landlord is required to make any repairs to such portions of the Premises or Shopping Center by reason, in whole or In
part, of the negligent act or failure to act by Tenant or Tenant's agent, servants, employees, contractors or subcontractors,
or by reason of any use of the Premises by Tenant which is not normal weer and tear, Landlord may collect the cost of
such repairs upon demand as Additional Rent. Landlord shall not be liable for repair, maintenance, alteration,
improvement, reconstruction, renewal or any other action with respect to any part of the Premises or any plumbing,
electrical, HVAC, or other mechanical Installation, except as may be expressly set forth in this Lease. The provisions of
this Section shall not apply In the case of any casualty or condemnation in which event the provisions of Article 12 or 13,
as the case may be, shall control.
Section 9.02 Repair and Maintenance by Tenant.
(a) Premises and Systems. Tenant will at all times, from and after Landlord's delivery of::possession of the
Premises to Tenant, at its own expense, maintain and keep in good repair in a neat, dean and orderly condition, all
portions of the Premises not required to be maintained by Landlord pursuant to Section 9.01. Tenant's obligation under
this Section 9.02 shall include, but not be limited to, reasonable periodic painting and making all non-structural ordinary
and extraordinary, foreseen and unforeseen maintenance, repairs, and replacements to the Premises and its systems.
Such obligation shall include repairing, replacing, and maintaining, without Ilmitation, all entrances to the Premises, the
storefront(s), doors and doorframes, the glass in all doors and windows of the Premises, all walls (except to the extent set
forth in Section 9.01), all Interior portions of the Premises, escalators and elevators (if any), all trade fixtures, fixtures,
equipment, signs, ceNings, as well as any plumbing, electrical, sprinkler, and HVAC systems, mechanical systems, utility
meters, and sewer lines within the Premises, or under the floor slab of the Premises, provided, if under the floor slab, that
the subject systems or components of such systems exclusively serve the Premises; utility meters, pipes, and conduits
outside the Premises which are installed' by or demised to Tenant or which exclusively serve the Premises; HVAC
equipment installed by or demised to or used solely by Tenant (regardless of where such HVAC equipment is located);
and security grilles or similar enclosures, locks and dosing devices. Notwithstanding the foregoing, Tenant shall make no
adjustment, alteration or repair to any part of any sprinkler, life safety or other detection or suppression system in or
serving the Premises without landlord's prior approval
(b) Nc Overload. Tenant will not overload the electrical wiring or other systems serving the Premises or
within the Premises, and will install at its expense, but only after obtaining Landlords written approval, any additional
electrical wiring or other Items which may be required in connection with Tenants apparatus.
(c) Pamaoe to the Premises. Tenant will repair promptly at its own expense any damage (whether structural
or nonstructural) to the Premises caused by any construction or alterations performed by Tenant or bringing into the.
Premises any property for Tenant's use, or by the installation or removal of such property, regardless of fault or by whom
such damage was caused, unless and then to the extent caused by the negligence of landlord, its servants or
employees.
Section' 9.03 Landlord RI ht to Access the Premises.
Landlord and its authorized representatives may enter the Premises at any and all times during usual business
hours for the purpose of inspecting the same, and at any time and for any purpose in the case of emergency. Landlord
may also enter the Premises at all times during usual business hours for the purpose of showing the Premises to
prospective purchasers, mortgagees and tenants. Tenant further agrees that Landlord may from time to time go upon the
Premises and make any additions, alteratkns, repairs or replacements and do other work to the Premises or to any
utilities, systems or equipment located in, above or under the Premises Which Landlord may deem necessary or desirable
to comply with any Governmental Requirements, recommendations of an insurance rating bureau or any similar public or
private body, or that Landlord may deem necessary or desirable to prevent waste or deterioration in connection with the
Premises If Tenant does not make such additions, alterations, repairs or other work promptly after receipt of written
demand from Landlord. Nothing herein shall imply any obligation by Landlord to do any work which under this Lease
Tenant maybe required to do, and Landlord's failure to do the same shall not constitute a waiver of Tenant's default. In
the event landlord performs or causes any such work to be performed, Tenant shall pay the cost thereof to Landlord as
Additional Rent upon demand. In addition, Landlord may install, use, repair or replace any and all materials, tools and
equipment, and pipes, ducts, conduits, columns, foundations, footings, wires and other mechanical equipment serving
other portions, tenants and occupants of the Shopping Center in, through, under at above the Premises that Landlord
deems desirable, without the same constituting an actual or constructive aviation of TenanL
Furthermore, notwithstanding anything In this Lease to the contrary, Landlord may erect additional stories or other
structures over all or any part of the Premises and/or Shopping Center. In connection therewith, Landlord may relocate
Tenant (in accordance with Section 2.06) and/or Tenant's signage and equipment and may erect temporary scaffolds and
other aids to such construction at Landlord's sole cost and expense.
Section 8.04 No?ReLrt Abatement or Damas?es.
Tenant shall not be entitled to any abatement of Rent or to any damages for inconvenience, sdisturbance, loss of
business or other damage to Tenant occasioned by Landlord's exercise of any rights provided in Section 9.01 or 9.03.
ARTICLE 10: PROMOTION OF THE SHOPPING CENTER
Section 10.01 Marketing Service. Deleted.
Section 10.02 Marketing Service Charge. Deleted.
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June 17, 2008 % Trachtman7Go 18
ARTICLE 11: INSURANCE, INDEMNITY, WAIVER OF SUBROGATION
Section 11.01 Tenant's insurance.
(a) Recuired Coveraoe. Tenant will keep in force, at Tenant's expense, at all times during the Term and
during such other times as Tenant occupies the Premises or any part thereof and without limiting any liabilities or any
other obligations of Tenant, the minimum insurance coverage listed below. Coverage will be provided with forms and
insurers acceptable to. Landlord until all obligations under this Lease are satisfied. All insurers must be duly licensed and
possess a current A.M. Best, Inc. rating of at least A- WI or, If unlicensed, be an admitted surplus lines insurer.
(i) Commercial General Liability Insurance. Commercial general liability insurance with respect to
the Premises, the sidewalks, if any, abutting and adjoining the Premises, and the business operated by Tenant and any
subtenants, licensees and concessionaires of Tenant In or from the. Premises with a minimum combined single limit of
Three Million Dollars ($3,000,000.00) per occurrence, Including insurance against assumed or contractual liability under
this Lease, on account of bodily injury, death, property damage or personal injury as the result of any one accident or
disaster, which policy shall not include any exclusions for any property in Tenant's care, custody and control Such
liability insurance also shall extend to any liability of Tenant arising out of the indemnities provided in Section 11.04 below.
(ii) Property Insurance. Special peril all risk property insurance covering (x) all of Tenant's stock in
trade, trade fixtures, furniture, furnishings, such equipment not affixed to the Premises, and (y) Tenant's interest in all of
the improvements and betterments installed in the Premises by Tenant, in each case to the extent of at least eighty
percent (80%) of the collective replacement value without coinsurance.
(iii) Commercial/Buslness Automobile Liability Insurance. Commercial/Business Automobile
Liability insurance with a combined single limit for bodily injury and property damage of not less than One Million Dollars
($1,000,000.00) each occurrence with respect to Tenant's owned, hired and non-owned vehicles, assigned to or used in
performance of this Lease.
(iv) Workers' Compensation and Occupational Disease Insurance. if the nature of Tenant's
operation is such as to place any or all of its employees under the coverage of local workers' compensation or similar
statutes, Tenant shall also keep in force, at its own expense, Workers' Compensation and Occupational Disease or similar
insurance affording statutory coverage and containing statutory limits in accordance with the laws of the state in which the
Shopping Center is located and Employer's Liability Insurance with limits of not less than One Million -Dollars
($1,000,000:00) per occurrence.
(v) Liquor Liability insurance. If Tenant sells or dispenses alcoholic beverages, Tenant shall
maintain liquor liability insurance (Dram Shop or Host coverage) with limits of not less than One Million Dollars
($1,000,000.00).
(vi) Other Insurance. Such other types of insurance (excluding rent insurance in favor of Landlord)
and such additional amounts of insurance as, In Landlord's judgment, are necessitated by good business practice 'or:as
may be standard. and customary in the industry.
(b) The limits of insurance coverage required by this Lease or as carried by Tenant shall not limit Tenant's
liability or relieve Tenant of any obligation under this Lease.
(c) The policies required by paragraphs (1), (ii), (ill), and (v)' above shall be endorsed to include Landlord,
Agent, Mortgagees and any other entities as may be from time to time requested by Landlord and its respective agents,
representatives, officers, directors, officials, and employees as additional insureds and shall require that the insurance
provided by Tenant shall be primary insurance and that any Insurance canted by Landlord, Agent, Mortgagees (as defined .
in Section 17.01) and any other entities as may be from time to time requested by Landlord and their respective agents,
officials or employees shall be excess and not centhbutory insurance to that provided by Tenant.
(d) A certificate of insurance acceptable to Landlord shall be Issued to Landlord by Tenant prior to
commencement of this Lease (and thereafter:as renewed) as evidence that policies providing the required coverages,
named insureds, endorsements, conditions and limits are in full force and effect. Such certificate shall identify this Lease
and contain provisions that coverage afforded under the policies will not be canceled, terminated, or materially altered
until at least thirty (30) days prior written notice has been given to Landlord and all additional insureds.
(e) Upon request. Tenant will deposit with Landlord policies of Insurance required by the provisions of this
Section 11.01, or certificates thereof, together with satisfactory evidence of the payment.of the required premium or
premiums thereof. The Insurance required hereby may be maintained by means of a policy or policies of blanket or
excess insurance so: tong as the provisions of this Section are fully satisfied and provided that such poileles specifically
name Tenant's business at the Premises and Tenant provides Landlord with a certificate of such Insurance.
(f) Such policies of Insurance with more than one insured shall contain a provision substantially as follows:
"It is understood and agreed that the insurance afforded by this policy or policies for more than one named insured shall
not operate to increase the limits of the companies' liability, but otherwise shall not operate to limit or void the coverage of
any one named insured as respects claims against the same named 'insured by any other named insured or the
employees of such other named insured".
(g) If for any reason whatsoever Tenant fails to provide and keep in force any or all of the insurance policies
set forth in Section 11.01(a). then, in such event, Tenant shall indemnify and hold Landlord harmless against any loss
which would have been covered by such Insurance.
Section 11.02 Landlord's Insurance.
(a) Landlord shall at all times during the Term carry and maintain the types of insurance listed below, in the
amounts and forms specified.
(i) Commercial General Liability insurance. Commercial general liability insurance against claims
for property damage and bodily injury or death, such insurance to afford protection to the limit of not less than Five Million
Dollars ($5,000,000:00) in respect to property damage, injury or death to any number of persons arising out of. any one
occurrence.
DavenportsltaKenOven-CapkWCity-Final
June 17, 2008 1 Trachtman/GO 19
) Land Rea and onal Center owned by11Landlo d [extcl sive of alny to antsimprro em nts andnbettermenttss and p those portions of the Shopping
Tenant pursuant to Section 11.01(a)(ii) or required to be insured by other occupants of the ShoppinngguCenter] inn an amount
not less than one hundred percent (100%) of full replacement cost (exclusive of the cost of excavations, foundations and
footings), from time to time during the Term, providing protection against perils Included within the standard ISO form of
special form coverage insurance policy, together with insurance against sprinkler damage, vandalism and malicious
mischief, and such other risks as Landlord may from time to time determine and with any such deductibles as Landlord
may from time to time determine.
(iii) Rent Insurance. Rent Insurance with respect to the premises of the tenants in the Shopping
Center If available at a cost which Landlord in its sole judgment deems reasonable, against loss of rents in an aggregate
amount equal to not more than twenty-four (24) times the sum of (1) the monthly requirement of Minimum Rent of such
tenants, plus (ii) the average monthly amount estimated from time to time by Landlord to be payable by such tenants as
Percentage Rent and as Additional Rent pursuant to their leases.
(b) Any insurance provided for in Section 11.02(a) may be maintained by means of a policy or policies of
blanket or excess insurance, covering additional items or locations or insureds provided that the requirements of Section
11.02(a) are otherwise satisfied.
(c) Tenant shall have no rights in any policy or policies maintained by Landlord and shall not be entitled to be
named an insured thereunder by reason of payment or otherwise.
Section 11.03 Effect on Landlord's Insurance.
Tenant will not do, omit to do, suffer to be done, keep, or suffer to be kept anything in, upon, or about the
Premises which will violate the provisions of Landlord's policies insuring against loss or damage by fire or other hazards
(including, but not limited to, public liability), which will adversely affect Landlord's property or liability Insurance premium
rating or which will prevent Landlord from procuring such policies in companies acceptable to Landlord, provided Tenant
is first given adequate notice of the requirements of such policies. If anything done, omitted to be done, suffered to be
done by Tenant, kept or suffered by Tenant to be kept in, upon, or about the Premises shall cause, by itself or in
combination with other circumstances existing at the Shopping Center, the premium rate of special cause of loss form
property or other insurance on the Premises or other property of the Shopping Center in companies acceptable to
Landlord to be increased beyond the established rate from time to time fixed by the appropriate underwriters with regard
to the use of the Premises for the purposes permitted under this Lease or to such other property in the Shopping Center
for the use or uses made thereof, Tenant will pay the amount of such increase or, in the event that other circumstances
existing at the Shopping Center shall have contributed to such increase, such equitable portion of such increase as
reasonably determined by Landlord, as Additional Rent upon -Landlord's demand and will thereafter pay the amount-of
such increase, as the same may vary from time to time, with respect to every premium relating to coverage of the
Premises during a period falling within the Term until such increase is eliminated. In addition, if applicable, Landlord may
at its option rectify the condition existing on the Premises which caused or was a contributing cause of the increased
premium rate in the event that Tenant should fail to do so and may charge the cost of such action to Tenant as Additional
Rent, payable on demand. In determining whether increased premiums are the result of Tenant's use of the Premises, a
schedule, issued by the organization making the insurance rate on the Premises, showing the various components of
such rate, shall be conclusive evidence of the several items and charges which make up the Property Insurance rate on
the Premises.
Section 11.04 Indemnification and WaiyOr of Claim.
(a) Tenant agrees to defend, indemnify, and save harmless Landlord, Agent, and any ground and underlying
lessor(s) and mortgagee(s) of the Premises and Shopping Center from and against any and all claims, actions, demands,
liability, costs and expenses (including, but not limited to, reasonable attorney's fees and disbursements) connected with
the loss of life, personal injury or damage to property or business arising from, related to, or in connection with the
performance of Tenant's Work, the occupancy of the Premises, or occasioned wholly or in part by act or omission of
Tenant, its contractors, subcontractors, subtenants, licensees, or concessionaires, or its or their respective agents,
servants, or employees on any part of Landlord's property or the Shopping,Center, or by reason of Tenant's breach of any
of the provisions of this Lease. Tenant shall not, however, be liable for damages or injury occasioned by the negligence
or willful misconduct of Landlord, Agent, or any such ground of underlying lessor(s) or mortgagee(s), or their agents,
employees, contractors, or servants, unless such damage or injuryarises from perils against which Tenant is required by
this Lease to assume or insure. Tenant's obligations under the aforesaid indemnity shall not be limited to the amount of
commercial general liability insurance coverage which Tenant is required to carry and, If Tenant fails to provide and keep
in force any or all of the insurance policies set forth in Section 11 Al, then, in such event, Tenant shall indemnify and hold
Landlord harmless against any loss which would have been covered by such insurance.
(b) Tenant further agrees to defend, indemnify, and save harmless Landlord, Agent, and any ground and
underlying lessor(s) and mortgagee(s) of the Premises and Shopping Center from all loss, damage, expense, fees,
claims, costs, fines, penalties, and liabilities Including, but riot limited to, clean up costs, remedial and monitoring costs,
damages to the environment, attorneys' fees, and costs of litigation, arising out of Tenant's installation of any hazardous
substances or violation of any Environmental Laws (as defined in Section 7.07). In the event insurance coverage is
available or becomes available for the losses or liabilities described in this paragraph, Tenant shall furnish evidence of
such coverage for the protection of both Tenant and Landlord (and any designees of Landlord).
(c) Unless and then solely to the extent such damage is caused by the negligent acts or omissions of
Landlord, Agent, or their respective agents, servants, and employees, neither Landlord, nor Agent, nor their respective
agents, servants, employees or contractors shall be liable for, and Tenant, in consideration of Landlord's execution of this
Lease, hereby releases all claims for, loss of life, personal injury or damage to property or business sustained by Tenant
or any person claiming through Tenant resulting from any fire, accident, occurrence, or condition in or upon the Shopping
Center or any part thereof (including, without limitation, the Premises and the building of which the Premises is a part),
including, but not limited to, such claims for loss of life, personal injury or damage resulting from (i) any defect in or failure
of plumbing, heating or air-conditioning equipment, electrical wiring or installation thereof, water pipes, stairs, railings or
walks; (ii) any equipment or appurtenances being out of repair; (iii) the bursting, leaking, or running of any tank,
DavenportsitalianOven-CapitalCity-Final
June 17, 2008 h TrachtmarVGO 20
washstand, water closet, waste pipe, drain, or any other pipe or tank In, upon, or about the Shopping Center; (iv) the
backing up of any sewer pipe; (v) the escape of steam or hot water; (A) water, snow, or ice being upon or coming through
the roof or any other place upon or near the Premises or the building of which the Premises is a part or otherwise; (vii) the
falling of any fixture, plaster, ceiling tile or stucco; (viii) broken glass; and (ix) any act or omission of other tenants or other
occupants of the Shopping Center. The foregoing waiver and release is Intended by Landlord and Tenant to be absolute,
unconditional, and without exception and to supersede any specific repair obligation imposed upon Landlord hereunder.
(d) Landlord agrees to defend, indemnify and save harmless Tenant from and against any and all claims,
actions, demands, liability, costs and expenses (including, but not limited' to, reasonable attorney's fees and
disbursements) in connection with the loss of life, personal injury or damage to property arising from, related to, or in
connection with Landlord's willful misconduct or negligent acts or omissions in the Common Areas. Landlord shall not be
liable for damages or Injury occasioned by the negligence or willful misconduct of Tenant, its agents, contractors, servants
or employees, or damages and injury attributable to terrorism, virallbacteriologieal pandemics, or other catastrophic
events beyond Landlord's reasonable control.
(e) This Section 11.04 shall survive the expiration or earlier termination of this Lease.
Section 11.05 Mutual Waivers.
In the event the Premises or its contents are damaged or destroyed by fire or other insured casualty, (i) Landlord,
to the extent covered by its policies of special cause of loss form property insurance, hereby waives its rights, d any,
against Tenant with respect to such damage or destruction, even 9 said fire or other casualty shall -have been caused, In
whole or in part, by the negligence or willful misconduct of Tenant, Its agents, servants, or employees, and (ii) Tenant, to
the extent covered by its policies of special cause of loss form property Insurance, hereby waives its rights, If any, against
Landlord with respect to such damage or destruction, even 9 said fire or other casualty shall have been caused, in whole
or in part, by the negligence or willful misconduct of Landlord, its agents, servants, or employees. The parties hereto, on
behalf of their respective Insurance companies Insuring the property of either Landlord or Tenant against any such loss,
waive any right of subrogation that such insurers may have against Landlord or Tenant, as the case may be.
ARTICLE 12: DAMAGE OR DESTRUCTION
Section 11Z01 Landlord's; Duty toReconst ctthePres.
In the event the Premises is damaged or destroyed by any of the perils referred to in Section 11.02(a)(11) against
which Landlord is obligated to procure Insurance, unless Landlord or Tenant terminates this Lease pursuant to Section
12.03, Landlord shall (subject to being able to obtain all necessary permits and approvals), within one hundred twenty
(120) days after such damage or destruction, commence to repair or reconstruct the structural floor slab, demising wail
studs (without drywall) and roof (or floor stab above, as the case may be of the Premises. Landlord shall
such work dillgently 1o completion. In no event shall Landlord be liable for interruption to Tenant's business or pro all
for damt age
to or repair or reconstruction of any of those things which Tenant is required to insure pursuant to Section 11.01(aXII).
Landlord will not expend more for any repair or reconstruction pursuant to this Section than the net amount of insurance
proceeds actually received by Landlord (after deduction of Landlord's reasonable expenses in obtaining such proceeds
and any amounts required to be pail to Landlord's mortgagee) and allocable to the Premises on a square foot basis.
Section 12.02 Tenant's Duty to Reconstruct the Premises.
If any item which Tenant is required to insure pursuant to Section I i.01(aXII) Is damaged or destroyed by fire or
other casualty, unless Landlord or Tenant terminates this Lease pursuant to Section 12.03, Tenant shall (subject to being
able to obtain all necessary permits and approvals), within fifteen (15) days after Landlord has substantially repaired or
reconstructed that portion of the Premises Landlord is obligated to repair or reconstruct pursuant to Section 12.01,
commence to repair or reconstruct such damaged or destroyed items to at least substantially the same condition in which
they were prior to such damage or destruction and prosecute the same diligently to completion.
Section 12.03 Option to Terminate.
(a) Landlord's Option to Terminate. Landlord shall have the option to terminate this Lease upon giving
written notice to Tenant within sixty (60) days after the Shopping Center is damaged or destroyed if:
(1) the Premises is rendered wholly unfit for the carrying on of Tenant's business after damage to or
destruction thereof from any cause; or
(11) the Shopping Center is damaged or destroyed as a result of any flood, earthquake, act of war,
radioactive or other contamination, or from any other risk whether or not covered by insurance which Landlord Is obligated
to procure pursuant to Section 11.02(axlt); or
(iii) any damage to or destruction of the Shopping Center occurs within the last three (3) Lease Years
of the Term or in any Partial Lease Year at the end of the Term; or
(tv) fifty percent (50%) or more of the GLA of the Shopping Center immediately prior to the damage or
destruction is rendered unfit for the carrying on of business therein; or
(v) the Shopping Center is so substantially damaged that it is reasonably necessary, in Landlord's
judgment, to demolish the same for the purpose of reconstruction.
(b) Tenant's ODlion to Terminate. Tenant shall have the option to terminate this Lease upon giving written
notice to Landlord within thirty (30) days after the Shopping Center or Premises is damaged or destroyed If the Premises
Is rendered wholly unfit for the carrying on of Tenant's business after damage to or destruction of the Premises which
occurs within the last three (3) Lease Years of the Term.
(c) Effective Date. With regard to termination as set forth in (a) and (b) above, such termination shall take
effect ninety (90) days from and after the receipt of such notice by the other party and, in such event, this Lease shall
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terminate as of the aforesaid date (except that such termination shall riot affect the obligations of the parties which have
accrued and remain unpaid).
Section 12.04 Abatement of Rent.
If Landlord or Tenant does not terminate this Lease pursuant to Section 12.03 and if the Premises Is rendered
wholly or partially unfit for the carrying on of Tenant's business by such damage or destruction, then the Minimum Rent
and Additional Rent payable by Tenant shall abate proportionately as to the portion of the Premises rendered amid for that
period from the date the Premises is rendered unfit until the earlier of (i) sixty (60) days after Landlord re-delivers
possession of the Premises to Tenant or (it) the date Tenant reopens for business. 'Nothing in this Section shall be
construed to permit any abatement of Percentage Rent, and the calculation of Percentage Rent shall be governed solely
by Section 4.03.
ARTICLE 13: CONDEMNATION
Section 13.01 Total Condemnation of the Premises.
If the entire Premises shall be taken or condemned either permanently or temporarily by any public or quasi-
public authority under the power of eminent domain, condemnation or expropriation or by conveyance in lieu thereof or by
agreement (hereinafter "Condemnation"), then this Lease shalt terminate as of the date possession Is required to be
surrendered to the condemning authority. Tenant shall have no claim against Landlord or the condemning authority for
the value of the unexpired Term. Tenant shall pay Rent and perform all obligations under this Lease up to such date and
Landlord shall refund to Tenant any Rent which Tenant shall have paid in advance for the period subsequent to such
date.
Section 13.02 Partial Condom
(a) If any part of the Premises shall be taken by Condemnation which renders the remainder of the Premises
unsuitable for the carrying on of Tenant's business, then this Lease shall terminate as of the date possession is required
to be surrendered to the condemning authority. Tenant shall have no claim against Landlord or the ccondemning authority
for the value of the unexpired Term. Tenant shall pay Rent and perform all obligations under this Lease up to such date
and Landlord shalt refund to Tenant any Rent which Tenant shall have paid in advance for the period subsequent to such
date.
(b) In the event the partial Condemnation does not render the Premises unsuitable for the carrying on of
Tenant's business, this Lease shall terminate only with respect to the parts of the Premises taken as of the date
possession is required to be surrendered to the condemning authority. Tenant shall pay Rent and perform all obligations
under this Lease up to such date and Landlord shall refund to Tenant any Rent Which Tenant shall have paid in advance
for the period subsequent to such date. As of such date, Minimum Rent and the Percentage Rent Break Point shall each
be reduced in the same proportion that the GLA of the Premises condemned bears to the GLA of the Premises
immediately prior to the Condemnation, such reduction commencl rig as of the date Tenant is required to surrender
possession of such portion and, with respect to the days during which the Premises is not open for business, the
calculation of Percentage Rent shall be adjusted in accordance with Section 4.03. Landlord shall restore the Premises as
soon as reasonably possible to a complete unit of similar quality and character as existed prior to the Condemnation (to
the extent feasible), provided that Landlord shall not be required to expend more on such restoration than an amount
equal to the condemnation award received by Landlord (less all expenses, costs, legal fees and court costs incurred by
Landlord in connection with such award and amounts due to any mortgagee of Landlord) and allocable to the Premises.
Tenant shall promptly make all necessary repairs, restoration and alterations of Tenant's fixtures, equipment and
furnishings and shall promptly reenter the Premises and commence doing business in accordance With the provisions of
this tease.
Section 13.03 Condom natio$11oppina Center.
If any part of the Shopping Center is taken by Condemnation.so as to render, in Landlord's judgment, the
remainder unsuitable for use as an enclosed mail shopping center, Landlord shall have the right to terminate this Lease
upon notice in writing to Tenant within one hundred twenty (120) days after possession is taken by such Condemnation. If
Landlord terminates this Lease, it shat) terminate as of the day possession Is taken by the condemning authority, and
Tenant shall pay Rent and perform all of its other obligations under this Lease up to that date with a proportionate refund
by Landlord of any Rent which Tenant may have paid in advance for any period subsequent to such possession. Tenant
shall have no claim against Landlord or the condemning authority for the value of the unexpired Term.
Section 13.04 Damages.
All damages in the event of any Condemnation are to belong to Landlord and any mortgagee of Landlord whether
such damages are awarded as compensation for diminution in value of the leasehold, reversion or fee of the Premises or
Tenant's leasehold improvements. Tenant shall have the right to claim and recover from the condemning authority, but
not from Landlord or Its mortgagee, such compensation as may be separately awarded or recoverable by Tenant in
Tenant's own right for or on account of any cost or expense which Tenant mWd incur in removing Tenant's merchandise,
furniture and fixtures, provided such compensation does not in any way diminish:the compensation otherwise available to
Landlord. In the event the condemning authority makes a single damages award on account of alt damages to both
Landlord and Tenant, Landlord will cooperate with Tenant in including Tenanrs damages in the claim Landlord submits to
the condemning authority, but Tenant shall be entitled only to such. portion of the award as remains after Landlord is fully
compensated' for its damages;
ARTICLE 14: FIXTURES AND PERSONAL PROPERTY
Section 14.01 Imurovements to Premises: Removal.
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All leasehold improvements made to the Premises by Tenant including, but not limited to, the items furnished
pursuant to Tenant's Work, alterations, changes and additions by Tenant, light fixtures, floor coverings and partitions,
heating, ventilating and air-conditioning equipment, mechanical and plumbing equipment (but excluding Personal Property
as defined below) shall, when Installed, attach to the fee and become and remain the property of Landlord. However,
Landlord may designate by written notice to Tenant those alterations, changes, and additions made in the Premises
during the Term which shall be removed by Tenant at the expiration or termination of this Lease, and Tenant shall, at
Tenant's sole cost and expense, promptly remove the same and repair any damage to the Premises caused by such
removal or by the installation of such alterations, changes or additions.
Section 14.02 Tenant's Personal Property; Removal.
Any of Tenant's personal .property not permanently affixed to the Premises (including trade fixtures, signs,
counters, shelving, showcases, mirrors, inventory and other personal property and hereinafter called "Personal
Property") shall remain the property of Tenant throughout the Term. Provided Tenant is not in default under this Lease,
Tenant shall have the right at any time during the Term to remove its Personal Property stored or installed in the
Premises. If Tenant is in default under this Lease, Landlord shall have the right to take exclusive possession of the
Personal Property and to use the Personal Property without rent or charge, and Landlord, whether or not It takes
possession of the Personal. Property, shall have the benefit of any lien thereon permitted under the laws of the state in
which the Shopping Center is located. If Landlord takes possession or asserts such lien in any manner, Tenant shall not
remove or permit the removal of the Personal Property until possession Is relinquished by Landlord or the lien is removed,
as the case may be. Nothing in this Section shall be construed to permit Tenant to remove the Personal Property prior to
the end of the Term without Tenant's immediate replacement with similar Personal Property of comparable or better
quality, or otherwise to render the Premises unsuitable for the continued conduct of Tenant's Permitted Use. Tenant, at
its expense, shall immediately repair any damage to the Premises or Shopping Center by reason of installation or removal
of any Personal Property unless the damage Is caused by Landlord pursuant to Section 9.03. If Tenant fags to remove
the Personal Property from the Premises upon expiration or earlier termination of this:Lease, then such Personal Property
shall become Landlord's property without further act by Landlord or Tenant unless Landlord elects to require all or a
portion of such Personal Property to be removed by Tenant; in which case Tenant shalt promptly remove the items
designated by Landlord and restore the Premises to its prior condition at Tenant's expense. Tenant hereby agrees to
indemnify and hold harmless Landlord from any liability; claim, expense or judgment arising from or related to Tenant's
Personal Property left in the Premises after expiration or earlier termination of this Lease, except for liability arising from
Landlord's wUlful'misconduct.
ARTICLE 16. ASSIGNMENT AND SUBLETTING
Section 15:01 Assignment and-subletting.
Tenant shall not permit anyone other than Tenant to occupy the Premises or any part thereof and shall not
transfer, assign, sublet, enter Into any license, concession, or other occupancy or use agreements, or mortgage or
hypothecate this Lease or Tenants interest In and to this Lease: or the Premises or any part thereof (herein collectively
referred to as "Transfer") without first obtaining in each and every instance the prior written consent of Landlord, which
Landlord may withhold in its sole discretion. Any attempted Transfer without.such prior written consent shaA:be anEvent
of Default, shall not be binding upon Landlord, shall confer no rights upon any third: person and shag not relieve Tenant of
its obligations under this Lease. Any transfer by merger, consolidatii liquidation or otherwise by operation of law,
including, but not limited to, an assignment for the benefit of creditors, as well as any transfer, assignment, or
hypothecation of any stock or general partnership or membership interest in Tenant so as to result in a change of the
control thereof, shall be included in the term "Transfer" for the purposes of ;this Lease and shall be :a violation of this
Section 15.01 and an Event of Default, except as otherwise specifically provided in Section 15.02. Consent by Landlord
to any Transfer shall not constitute a waiver of the necessity for such consent to any subsequent Transfer. In the event of
a permitted Transfer, Tenant agrees nevertheless to and shall remain fully liable for the full performance of each and
every obligation under this Lease to be performed by Tenant and the assignee shall be deemed to have:assumed, and
agreed to be bound by all of the terms of this Leaser
In the event of any proposed Transfer, Tenant shall deliver to Landlord written notice (the "Request Notice")
requesting Landlord's consent to the proposed Transfer at least thirty (30) days prior to the date on which, with Landlord's
prior written consent, the Transfer would be effective. The Request Notice shall contain, without IknifatioR at least: {i) the
full identification of the proposed transferee; (ii) the most recent financial statements and other evidence of the
transferee's financial responsibility and business performance; (Iii) the transferees proposed speoifk;.use and business
proposed to be conducted at the Premises; (iv) the scope of arty proposed alterations to the storefront of and within the
Premises; and (v) the monetary and non-monetary terms and conditions of the proposed Transfer.
Landlord shall have the right and option (the "Take-back Option"), exercisable by Landlord giving Tenant written
notice within thirty (30) days after Landlord's receipt of the Request Notice, of reacquiring the Premises or portion thereof
which is thesubject of the proposed Transfer and terminating this Lease, which termination shall be -effective on a date
specified by Landlord in its notice of exercise of the Take-back Option. If Landlord elects not to exercise the Take-back
Option and elects to give written consent to the proposed Transfer, then Tenant shall pay to Landlord upon Tenants
receipt, as Additional Rent, an 'sums and other economic consideration (whether by lump sum payment or otherwise)
received by Tenant In any month as a result of or related to the Transfer whether or not denominated rent which exceed in
the aggregate the sums which Tenant is obligated to pay and does pay Landlord under this Lease in the same.month
(prorated to reflect obligations allocable to that portion of the Premises which is the subject of the Transfer): If Landlord
gives Landlord's written consent to the proposed Transfer and Tenant does not consummate the Transfer (including,
without Imitation, delivery of possession by Tenant to and occupancy by the approved proposed transferee) within thirty
(30) days after the date Landlord gives its written consent to the proposed Transfer, then Landlord's written consent and
the Transfer shall be automatically void and of no force or effect whatsoever. Tenant agrees that Landlord (and any
assignee or transferee of Landlord's right, title and interest in this Lease) shall have the right to exercise the Take-back
Option as often as there is a proposed Transfer. If Landlord requests additional information which Landlord reasonably
requires to evaluate the proposed Transfer, Tenant shall deliver such information to Landlord upon Landlord's request,
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and the period for Landlord to exercise the Take-back Option shall be extended by the number of days between
Landlord's request for and Landlord's receipt of such additional Information.
Tenant shall pay to Landlord the sum of Five Thousand Dollars ($5000.00) ("Transfer Fee"), as Additional Rent,
to defray Landlord's administrative costs, overhead and counsel fees in connection with the consideration, review and
document preparation of any proposed assignment or subletting, such sum to be paid at the time Tenant delivers to
Landlord for Landlord's execution the assignment and assumption agreement executed by the assignee and assignor.
Section 15.02 Asslunment to Parent SubaidIs Affiliated ?••• •? f Tenant,
Notwithstanding the provisions of Section 15.01, Tenant shall have the right, without Landlord's consent and free
of the Take-back Option, to assign this Lease to the following entities (each an "Affiliated Corporation"):
(a) Tenant's parent corporation,
(b) Tenant's subsidiary, or
(c) a corporation (i) which owns more than a fifty percent (50%) interest in Tenant or in which Tenant
owns more than a fifty percent (50%) interest; (ii)
provided that Tenant shall deliver to Landlord within ten (10) days after the date of such assignment (x) an executed copy
of the assignment wherein such Affiliated Corporation assumes for the benefit of Landlord all of Tenant's obligations
under this Lease without releasing Tenant from liability for any of the terms, conditions and covenants of this Lease
(including the payment of Rent), (y) a statement certified by a certified public accountant that the Affiliated Corporation's
net worth is at least fifty million dollars ($50,000,000), and (z) the Transfer Fee.
After the date of the assignment, in the event such Affiliated Corporation shall no longer be Tenant's Affiliated
Corporation as defined above, then such an event shall constitute a Transfer and shall be subject to the provisions of
Section 15:91.
ARTICLE 16: -EVENTS OF DEFAULT AND BANKRUPTCY
Section 16.01 Events of Default.
This Lease is made upon the condition that Tenant shall punctually and faithfully perform and fulfill all of the
covenants, conditions and agreements by It to be performed .as set forth In this tease. In addition to events elsewhere
stated in this Lease as Events of Default, the following shall be deemed to be an Event of Default (each of which is
sometimes referred to as an "Event of Default"):
(a) Tenant's failure to pay Minimum Rent and/or Percentage Rent and/or Additional Rent or any installment
or year-end adjustment if such failure continues for ten (10) days after written notice by Landlord to Tenant; or
fb) Tenant's failure to submit Plans on or before the Plan Submittal Date and in accordance with Section
2.03, or to correct deficiencies in its Plans and :timely resubmit any "disapproved" Plans, or to commence Tenant's Work
on or before the Construction Commencement Date and In accordance with the terms and conditions of this Lease; or
(c) Tenant's failure to open Its business to the public in the Premises on or prior to the Required Opening
Date, or to open the Premises or to keep the Premises open In the manner and on the days and hours required by this
Lease, or if Tenant vacates or abandons the Premises; or
(d) Tenant's failure to observe or perform any of the covenants, terms or conditions set forth in Article 15
(relating to assignment and subletting); or
(e) the sale or removal of a substantial portion of Tenant's property located in the Premises in a manner
which is outside the ordinary course of Tenant's business; or
(f) Tenant's failure to <maintain inventory levels and employee staff In accordance with the provisions of
Article 7; or
(g) Tenant's failure to pay timely any Minimum Rent, Percentage Rent and/or Additional Rent or other sums
reserved hereunder or to report.timely Gross Sales where such failure shall continue or be repeated for two (2)
consecutive months or for a total of three (3) months In any period of twelve (12) consecutive months; or
(h) Tenant's failure to observe or perform any of the covenants, terms, or conditions of this Lease more than
three (3) times in the aggregate in any period of twelve (12) consecutive months; or
(i) except as otherwise provided in this Lease, Tenant's failure to observe or perform any of the other Lease
covenants, terms, or conditions for a period of twenty (20) days after written notice thereof from Landlord to Tenant
(unless such failure cannot reasonably be cured within twenty (20) days and Tenant shall have commenced to cure said
failure within twenty (20) days and continues diligently to pursue the curing of the same until completed); or
0) the commencement of levy, execution, or attachment proceedings against Tenant or Guarantor or a
substantial portion of Tenant's or Guarantors assets; the commencement of levy, execution; attachment or other process
of law upon or against Tenant's leasehold estate; the application for or the appointment of a liquidator, receiver,
custodian, sequestrator, conservator, trustee, or other similar judicial officer for Tenant or Guarantor or for all or any
substantial part of the property of Tenant or Guarantor (and such appointment continues for a period of thirty (30) days);
the Insolvency of Tenant or Guarantor of Tenant in bankruptcy or equity sense; any assignment by Tenant or Guarantor
for the benefit of creditors; or
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(k) the commencement of a case by or against Tenant or Guarantor under any insolvency, bankruptcy,
creditor adjustment or debtor rehabilitation laws, state or federal; or the determination by Tenant or Guarantor to request
relief under any insolvency proceeding, including any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation
laws, state or federal, and in no event shall the Premises or Tenant's interest in this Lease become an asset in any such
proceedings.
Section 16.02 Landlord,$ Remedies.
(a) Landlord's Remedi . Landlord may treat any Event of Default as a material breach of this Lease.
Landlord's failure to insist upon strict performance of any covenant, term, or condition of this Lease or to exercise any right
or remedy shall not be deemed a waiver or relinquishment for the future of such performance, right, or remedy. In
addition to any and all other rights or remedies of Landlord In this Lease or at law or in equity, Landlord shall have the
following rights and remedies If there shall-occur any Event of Default (none of which shall be construed as an election to
forego any of the other remedies then or in the future), all without being liable to prosecution or for damages:
(i) to accelerate the whole balance or any part of Rent and all other sums payable under this Lease
by Tenant for the entire balance of the Term; and/or
(if) to terminate this Lease, re-enter and take possession of the Premises, and remove all persons
and contents therefrom, all without claim or right for Tenant, as allowed by law; and/or
(Iii) to bring suit for the collection of Rent and damages without entering into possession of the
Premises or terminating this Lease; and/or
(Iv) to terminate Tenant's right of possession of the Premises by summary proceedings (or otherwise,
as allowed by law) without terminating this Lease and, in the event of re-entry and termination of possession, Landlord
shall have the right to remove any personal property from the Premises and either treat such property as abandoned or
place the same In storage at Tenant's sole cost, expense, and risk; and/or
(v) to the extent 'legally permitted, to enter the Premises and, without further demand or notice,
proceed to distress and sale of the goods, chattels, personal property, and other contents of the Premises and to levy the
Rent and/or to cause issuance of and levy of distress writ for Rent upon the contents of the Premises. Tenant shall pay
all costs and officers' commissions including watchmen's wages and sums chargeable by landlord and charges which
Landlord may impose by statute as commissions to the constable or other persons making the levy and, in such cases, all
costs, officers' commissions, and other charges shag immediately attach and become part of Landlord's claim for Rent;
any tender of Rent without saidcosts, commissions, and charges made after the issuance of a warrant of distress shall
not be sufficient to satisfy Landlord's claim.
(b) Confession of Judgment Rent Tenant covenants and agrees that if there is an Event of Default, then
Landlord may, without limitation, cause judgments for money to be entered against Tenant and, for those purposes,
Tenant hereby grants the following warrant of attorney. Tenant hereby irrevocably, authorizes and empowers: any
prothonotary, clerk of court, attorney of any court of record, and/or Landlord (as well as someone acting for Landlord) in
any and all actions commenced against Tenant for recovery of the Rent and/or other amounts to be paid to Landlord by
Tenant to appear for Tenant, assess damages, and confess-or otherwise .enter judgment against Tenant for all or any part.
of the Rent and/or other amounts to be paid to landlord by Tenant Including, without limitation, sums under Section
16.02(a), together with Interest, costs, and an attorneys' commission of five percent (5%) of the full amount of such Rent,
amounts and sums. Thereupon, Writs of execution as well as attachment may forthwith issue and be served without any
prior notice, writ, or proceeding whatsoever except.as may otherwise be required by applicable law. The warrant of
attorney herein granted shall not be exhausted by one or more exercises of it; successive actions may be commenced
and successive judgments may be confessed or otherwise entered against Tenant, from time to time, as often as any of
the Rent and/or other amounts and sums shall fall or be due or be in.arrears. This warrant of attorney may be exercised
during the Term of this Lease, any extension or renewals thereof, and/or after the termination or expiration of the Term.
The provisions of Section 16.02(4) are incorporated fierein,bythis reference.
(c) Confession of Judgment - Possession Tenant covenants and agrees that If there Is an Event of
Default, this Lease is terminated, or the Term or any extensions or renewals thereof is terminated or expires, then, and in
addition to the rights and remedies set forth In Section 16.02(b), Landlord may, without limitation, cause judgments in
ejectment and/or for possession of the Premises to be entered against Tenant and, for those purposes, Tenant hereby
grants the following warrant of attorney: Tenant hereby irrevocably authorizes. and empowers any prothonotary, clerk of
court, attorney of any court of record and/or Landlord (as well as someone acting for Landlord) In any and all actions
commenced for recovery of possession of the Premises to appear for Tenant and confess or otherwise enter judgment in
ejectment and/or for possession of the Premises against Tenant and all persons claiming directly or indirectly by, through,
or under' Tenant. Thereupon, writ of possession may forthwith Issue and be served, without any prior notice, writ,' or
proceeding whatsoever except as may otherwise be required by applicable law. If, for any reason after the foregoing
action or actions shall have been commenced, it shall be determined that possession of the Premises should remain in or
be restored to Tenant, Landlord shall. have the right to commence one or more further actions as set forth herein to
recover possession of the Premises including, without limitation, appearing for Tenant and confessing or otherwise
entering judgment for possession of the Premises. The provisions of Section 16.02(d) are incorporated herein by this
reference.
(d) Release. In any action or proceeding described in or in connection with Section 16.02(b) and/or Section
16.02(c), if a copy of this Lease Is verified by Landlord (or someone acting for landlord) to be a true and correct copy of
this Lease (and such copy shall be conclusively -presumed to be true and correct by virtue of such verification), then the.
fang of the original of this Lease shall not be necessary, notwithstanding any statute, rule of court of law, custom or
practice to the contrary. Tenant hereby releases to Landlord, anyone acting for Landlord, and all attorneys who may
appear for Tenant, allerrors in procedure regarding the entry of judgment or judgments by confession or otherwise and all
liability therefor. The right to enter judgment or judgments by confession or otherwise by virtue of the warrants of attorney
contained in this Lease and to enforce all of the other provisions of this Lease may be exercised by any assignee of
Landlord's right, title, and Interest in this Lease In such assignee's own name, notwithstanding any statute, rule of court or
law, custom or practice to the contrary.
(e) Waiver. Tenant expressly waives (to the extent legally permitted to be waived):
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(I) the benefit of all laws (now or hereinafter in force) exempting any goods in the Premises or
elsewhere from distraint, levy, or sale In any legal proceedings taken by Landlord to enforce any rights under this Lease;
(ii) the benefit of all laws (now or hereinafter in force) regarding any limitation as to the goods upon
or time within which distress is to be made after the removal of goods, and Tenant further relieves Landlord of the
obligation of proving or identifying such goods, it being agreed that all goods of Tenant, whether or not upon the
Premises, shall be liable to distress for rent;
(iii) the right to issue a writ of replevin for the recovery of any goods seized under a distress for Rent
or levy or seek to recover any goods attached upon an execution for Rent, damages, or otherwise;
(iv) the right to delay execution on any real estate that may be levied upon to collect any amount
which may become due under the terms and conditions of this Lease and any right to have the same appraised; Tenant
hereby authorizing the Prothonotary or Clerk of Court at Landlord's instance to enter a writ of execution or other process
upon Tenant's voluntary waiver and agreeing that said real estate may be sold on a writ of execution or other process;
(v) all rights under applicable law authorizing the sale of any goods :dlstrained for rent at any time
after seven (T) days (or other applicable statutory period) from said distraint without any appraisement and condemnation
thereof;
(vi) the right to any specific notice required under certain circumstances, or any other notice required
or otherwise provided by statute as a condition to commencing summary proceedings or an action for possession, or to
terminating this Lease or retaking of possession, Tenant hereby agreeing that the respective notice periods provided for in
this Lease shall be sufficient In any such case; and
(vii) all rights of redemption under applicable law.
(f) insolvencv. Notwithstanding Tenant's obligation to pay Minimum Rent, Percentage Rent, and Additional
Rent as of the first day of each month during the Term, in the event that an insolvency, bankruptcy or similar proceeding is
filed by or against Tenant or Guarantor (if any), Tenant shall be obligated to pay all such Minimum Rent, Percentage Rent,
and Additional Rent on a ratable basis from the date of the commencement of any such proceeding through the end of the
month In which such proceeding is commenced. Furthermore, notwithstanding anything contained herein to the contrary,
in the event that a bankruptcy or similar Insolvency proceeding is filed by or against Tenant, and Landlord is subjected to
any avoidance or similar claim under Chapter 5 of the Bankruptcy Code (as defined herein) or otherwise in or connection
with such proceeding, Landlord shad have or may assert any and all -claims against Tenant or its trustee (or similar
representative) to the fullest extent permitted by this Lease.
Section 16.03 Damages.
(a) DaM20s. If Landlord elects to terminate Tenant's right to possession under this Lease but not to
terminate this Lease, Landlord may reset the Premises (or any part thereof) for the account of Tenant at such rentals and
upon such terms and conditions as Landlord shad deem appropriate (which may be less than or exceed the balance of the
Term) and, to the extent Landlord receives the Rent therefor, Landlord shall apply the Rent first to the payment of such
expenses as Landlord may have incurred in recovering possession of the Premises (Including, without limitation, legal
and attorneys' fees) and for putting the Premises into good order and repairing or remodeling or altering the
same for retailing, and any other expenses, rent concessions; commissions, and charges paid, assumed, or Incurred by
or on behalf of Landlord in connection with reletting the Premises (collectively, "Goats of Reletting"), and then to the
fulfillment of Tenant's covenants under this Lease. Tenant covenants to pay to landlord Rent up to the time of
termination of Tenant's right to possession under this Lease and, thereafter and until -the end of the Terris, the equivalent
of the amount of Bent under this Lease less the net avails of such reletting (tf any) during the same period, and the same
shall be due and payable by Tenant on the dates Rent is due under this Lease. Any reletfing by Landlord shall not be
construed as an election by Landlord to terminate this Lease unless a notice of such intention is given by Landlord to
Tenant. Regardless of Landlord's reletting without terminating this Lease, Landlord may at any time thereafter elect to
terminate this Lease.' In any event,' Landlord shall not be liable for, and Tenants obligations hereunder shall not be
diminished by reason of, any failure by Landlord to relet the Premises or any failure by Landlord to collect any sums' due
upon such relating. Tenant shall not be entitled to any Rent received by Landlord whether or not in excess of Rent
provided for in this Lease. Landlord may file suit to recover any sums falling due under the terms of this subsection from
time to time, and no suit or recovery of any sums due Landlord hereunder shad be a defense to any subsequent action
brought for any amount not reduced to judgment in favor of Landlord.
Notwithstanding anything to the contrary contained herein, Landlord shall have no duty to mitigate damages in the
event Landlord terminates this Lease (unless prohibited by applicable state law). Fwthertrtore, (1) Landlord is under no
affirmative duty to maximize rent collected from any replacement tenant or otherwise mitigate Landlord's damages, (ii)
Tenant waives any legal or equitable right or defense that Landlord mitigate its damages, and (ik) regardless of whether
Landlord takes any action to mitigate Landlord's damages, such termination shall operate to accelerate the entire balance
of Rent due over the entire Lease Term, which shall become immediately due' and payable by Tenant, along with all
overdue Rent and charges. The foregoing sentences shall survive the termination of this Lease.
(b) Beaefit of tse Bargain Damages. If Landlord elects to terminate this Lease instead of terminating only
Tenant's right to possession, Landlord shall have the right to immediately recover against Tenant as damages for loss of
the bargain, and not as a penalty, the following "Benefit of the Bargain Damages" (as reasonably determined by
Landlord):
(i) the present value of the projected Rent payable by Tenant under this Lease that would have
accrued for the balance of the Term (Additional Rent projections to be based on the Additional Rent' which would have
been payable pursuant to this Lease for the full calendar year prior to the calendar year In which the default) occurred;
increasing annually on the first of each year after such calendar year at the rate of six percent (6%) per annum
compounded if any such increase is not otherwise set forth in this Lease), plus
(ii) any other amounts necessary to compensate Landlord for all detriments proxim ately caused by
Tenant's failure to perform its obligations under this Lease, including reasonable attorneys' fees, plus
(iii) interest on all sums due Landlord at the Default Rate (hereafter defined), less
(iv) the then-present fair market rental value of the Premises for the balance of the Term (taking into
account, among other things, the Premises' condition, market conditions, the period of time the Premises may remain
vacant before Landlord Is able to relet It to a suitable replacement tenant, and the Costs of Reletting that Landlord may
incur in order to enter into a replacement lease).
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Notwithstanding anything to the contrary contained in this Lease, if, subsequent to the termination of this Lease
and the recovery of damages from Tenant pursuant to this subsection (b), Landlord relets the Premises for an effective
Rent higher or lower than the Rent assumed for purposes of calculating the Benefit of the Bargain Damages, the Benefit
of the Bargain Damages shall not be recalculated and Landlord shall be entitled to retain all of the proceeds of such
reletting.
(c) Default Rate. The "Default Rate" means the highest amount allowed by applicable law. Any amount of
Rent which is not paid by Tenant to Landlord within five (5) calendar days after it is due shall bear interest at the Default
Rate.
Section 16.04 Landlord's Self-Help.
In addition to Landlord's rights to self-help set forth elsewhere in this Lease, if at any time Tenant fails to perform
any of its obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the right to
perform such obligations on behalf of and for the account of Tenant. Landlord shall give Tenant at least three (3) days
prior written notice of its election to self-help except in the event of emergency, for which no prior notice shall be required,
Upon demand by Landlord, Tenant shall reimburse Landlord for its costs and expenses incurred in exercising self-help,
plus interest at the Default Rate from the date Landlord performs such obligation. Landlord's performance of any of
Tenant's obligations shall not constitute a release or waiver of Tenant from such obligation.
Section 16.05 Landlord's Default.
Except as otherwise provided in this Lease, Landlord shall be in default under this Lease if Landlord fails to
perform any of its Lease -obligations and said failure continues for a period of thirty (90) days after written notice from
Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and Landlord shall have
commenced to cure Bald failure within thirty (30) days and continues diligently to pursue the curing of the same). If
Landlordshall bean default under this Lease and, If as a oonsequenoe of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of
such judgment and levied thereon against the right, title, and interest of Landlord in the Shopping Center (as the Shopping
Center may then be encumbered) and Landlord shall not be liable for any deficiency. In no event shall Tenant have the
right to levy execution against any property of Landlord other than La..ndlord's' right, title, and interest in the Shopping
Center. In no event shall Landlord be responsible for orbe [table to Tenant for any consequential or :spacial damages that
occur as a result of Landlord's breach of a term, covenant, obligation or condition under this Lease. No default by
Landlord :under this Lease shall give Tenant the right to terminate this Lease. Landlord's obligations to Tenant and
Tenant's obligation to pay Rent are Independent covenants in all respects.
In the event that Landlord transfers its interest in the Shopping Center, the transferor Landlord .shall not have any
further liability or obligations under:thls Lease after the data of the transfer and Tenant shall look solely to Landlord's
successor for performance of the conditions, obligations and covenants set forth in this Lease.
Section 16.06 Leaa1 Expenses,
(a) In the event: that (i) Landlord retains counsel and/or institutes any suit against Tenant for violation of or to
enforce any-of the covenants or conditions:of this Lease, or (ii) Tenant institutes arty action against Landlord for violation
of any covenants or conditions of this Lease, or (III) either party institutes a suit against the other for a declaration of rights
hereunder, or (tv) either party intervenes in any suit in which the other is a party to enforce or protect its interests or rights
hereunder; then the prevailing party in any such suit shall be entitled to all its costs, expenses and reasonable attorneys'
fees in connection therewith.
(b) In the event a proceeding is filed by or against Tenant under any chapter of the United States Bankruptcy
Code, as presently existing or as may be amended (the "Bankruptcy Code"), or Tenant makes an assignment for the
benefit of creditors, or commences or otherwise becomes the subject of any insolvency, receivership, or similar
proceeding, Landlord shall be entitled to recover from Tenant or any trustee, custodian, receiver, assignee, or other
representative acting on Tenant's behalf, all of Landlord's costs, expenses, and reasonable attorneys' fees incurred in or
in connection with any such proceeding. In addition to arty other sums due and owing by Tenant under this Lease, such
costs, expenses, and reasonable attorneys' fees shall constitute (i) an obligation of Tenant hereunder and (it) a
component of any sure claim assertabie by Landlord under 11 U.S.C. § 365(b) or otherwise.
Section 16.0.7 Landlord's Rioht to Assume Lease and Purchase Tenant's Leasehold ante s.
As a specifically bargained for right hereunder, ff Tenant makes an assignment for the benefit of creditors, files or
suffers the filing against it of a petition under any chapter of the Bankruptcy Code, or if proceedings for reorganization or
composition with creditors under any federal or state law are Instituted by or against Tenant :and Tenant or Tenant's
trustee (as the case may be) subsequently attempts to assign this. Lease or Tenant's interests in this Lease pursuant to 11
U.S.C. § 365 or otherwise, Landlord shall have the right of first refusal to purchase and assume this Lease and Tenant's
interests thereunder (collectively, "Tenant's Leasehold interests") upon the following terms and conditions:
(a) If Tenant reeetvas a bona fide, arm's langth offer to purchase Tenant's Leasehold Interests (the "Third
Party Offer"), which :Third Party Offer Tenant.or Tenants trustee (as the case may be) deems acceptable, Tenant or
Tenant's trustee shall first deliver a copy to Landlord ("Landlord's RI t=R Notice"). Landlord shall thereafter have the. right,
to assume and acquire Tenant's .Leasehold interests described to Landlord's RFR Notice on the same terms and
conditions as set forth in the Third Party Offer.
(b) Within thirty (30) days following Landlord:'a receipt of Landlord's RFR Notice, Landlord shall notify Tenant
or Tenant's trustee (as the case may be) in writing of. Landlord's Intention to exercise the right of refusal to acquire
Tenant's Leasehold Interests or be deemed to have waived such right of first refusal with respect to the transaction
described in Landlord's RFR Notice. If Landlord timely exercises Landlord's right of first. refusal, Tenant or Tenant's
trustee shall be deemed to be contractually bound to sell and assign Tenants Leasehold Interests exclusively to Landlord
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in accordance with the terms and conditions set forth in the Third Party Offer. If Landlord fails timely to respond to
Landlord's RFR Notice or declines to exercise the right of first refusal granted hereunder in such instance, then Tenant or
Tenant's trustee (as the case may be) shall be free to sell and assign Tenant's Leasehold Interests described in
Landlord's RFR Notice to the proposed purchaser (the "Third Party Purchaser") on the same terms and conditions set
forth in the Third Party Offer; provided, however, that the sale and assignment of Tenant's Leasehold Interests to the
Third Party Purchaser shall be and remain subject to this right of first refusal provision, such that any future assignment of
this Lease by the Third Party Purchaser or any successor thereto, shall be and remain subject to the right of refusal herein
granted to Landlord.
(c) The parties hereby specifically acknowledge and agree that the right of first refusal granted to Landlord
herein is not intended to operate, and shall not be construed, as a provision that prohibits, restricts, or conditions the
assignment of this Lease within the meaning of 11 U.S.C. § 365(f) or any simnar statutory provision.
Section 16.08 Shopping Center Lease.
Tenant agrees that this Lease is a "lease of real property in a Shopping Center" as such term is used in the
Bankruptcy Code, and that neither Tenant's Interest In this Lease nor in any estate created hereby shall pass to any
trustee, receiver, assignee for the benefit of creditors, or otherwise except as may be specifically provided therein.
Nothing contained in this Section 16.08 shall be deemed in any, manner to limit Landlord's rights and remedies under the
Bankruptcy Code.
Section 16.09 Refection of the L"so.
Notwithstanding any other provision of this Lease, in the event Tenant rejects this Lease under the applicable
provisions of the Bankruptcy Code, Landlord shall be entitled to a claim for damages under this Lease to the full extent
provided by Section 502(b)(6) of the Bankruptcy Code, without reduction based on Landlord's failure to mitigate damages,
and Tenant hereby specifically waives any rights (1) to assert that Landlord has a duty to mitigate damages, (it) to object to
any claim filed or asserted by Landlord in Tenant's bankruptcy proceeding on the grounds that Landlord has a duty to
mitigate damages and-has breached such duty, in whale or In part, and/or (111) to assert the existence of any such duty to
mitigate against Landlord in any bankruptcy or non-bankruptcy proceeding involving the parties to this Lease or the-
Guarantor (if any).
ARTICLE 17: SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE
Section 17.01 Surbordination.of Lease.
Except as hereinafter provided, Tenant agrees that this Lease is and shall always be subject and subordinate to
the following: (t) any lease wherein Landlord is the lessee, (il) the lien of any or an mortgages or iieeds of trust, and to the
interest thereon, (iii) all modifications, consolidations, renewals, replacements and extensions and future advances made
thereunder ((it) and (iii) are collectively referred to as 'Mortgage"). Such subordination shag apply regardless of whether
such lease or .Mortgage now exists or may hereafter be created with regard to all or any part of the Shopping Center.
Such subordination shall be effective without the execution of any further instrument. Tenant also agrees that any holder
of such tease or Mortgage ("Mortgagee") may elect to have this Lease prior to any lease or lien of its Mortgage and. to
the event of such election and upon notification by such lessor or Mortgagee to Tenant to that effect, this Lease shall be
deemed prior in lien to the said lease and/or Mortgage,. whether this Lease is dated prior to or subsequent to the date of
said tease and/or Mortgage.
Section 17.02 Tenant's Attomme it.
In the event of any foreclosure of or the exercise of a power of sale under any Mortgage covering the Premises or
in the event of the termination of any lease referred to in Section 17.01 wherein Landlord is the lessee, Tenant shall -attom
to and recognize the purchaser or Landlord's lessor as Landlord under this Lease'.
Section 17.03 Instruments to Carry Out Intent.
Tenant agrees that upon the request of Landlord, Landlord's lessor, or Mortgagee, Tenant shall execute and
deliver whatever instruments may be required to carry out the intent of Sections 17.01 and 17.02, and in the event Tenant
falls to do so within fifteen (15) days after:demand in writing, Tanant shall be. deemed to have committed an Event of
Default.
Any document executed by Tenant evidencing subordination of this Lease shag provide that Landlord's
Mortgagee, or such purchaser of Landlord's interest, or Landlord's lessor shag not be (i) liable for any action or omission
of any prior landlord .(including Landlord) under this Lease, (it) subject to any off sets, claims or defenses which Tenant
might have against prior landlord (Including Landlord), (III) bound by any Rent which Tenant might have paid for more than
the current month to any prior landlord (Including Landlord), (iv) bound by any amendment or modification of this Lease or
any other agreement concerning this Lease made without Mortgagee's or purchaser's written consent, and/or (v)
responsible in any way for any Security Deposit whtoh was delivered to Landlord but was not subsequently delivered to
Mortgagee or purchaser.
Section 97.04 Estoppel Certificate:
Within fifteen (15) days after written request by Landlord, Mortgagee, crony purchaser of Landlord's interest in
this Lease, Tenant shall execute and deliver to Landlord,
Mortgages, Landlord may designate (and Landlord, Mortgage, purchaser, or to such other addressee(s) n
purchaser, and any such addressee(s)- may rely thereon), a statement
in writing in form and substance satisfactory:to Leridlord, Mortgagee, and/or purchaser (herein called "Estoppel
Certificate"), certifying as to such matters as may be reasonably requested by Landlord, Mortgagee, and/or purchaser.
Tenant expressly agrees that, at any time, Landlord may assign its interest in the Estoppel Certificate to its prospective .or
existing transferee of all of any part of Landlord's interest in the Slopping Center or this Lease, or to any of Landlord's
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lenders, who may act in material reliance thereon.
Tenant's failure to provide timely an Estoppel Certificate shall constitute an acknowledgment by Tenant that the
statements contained in such certificate are true and correct without exception and my be relied upon by Landlord,
Mortgagee, and any prospective or existing transferee of all or any part of Landlord's interest in the Shopping Center or
this Lease, and may also be deemed an Event of Default by Landlord.
Section 17.05 Landlord's Rlahts of Alienation.
Landlord reserves the right to sell, lease or sever the ownership of. or title to the various sections of the Shopping
Center and/or to place separate Mortgages on said sections. Tenant shall execute from time to time such instruments
reasonably required by Landlord and Mortgagee to effectuate the provisions of this Section.
ARTICLE 18: MISCELLANEOUS
Section 18.01 Interpretation.
(a) Caotions. The captions, table of contents, and index of defined terms appearing in this Lease inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such
Sections or Articles of this Lease.
(b) Landlord and Tenant ?a+, If more than one person or corporation is named as. Landlord or Tenant In
this Lease and executes the same as such or becomes Landlord or Tenant, then the words "Landlord" or "Tenant"
wherever used are intended to refer to all such persons or corporations, and the liability of such persons or corporations
for compliance with and performance of all the terms, covenants, and provisions of this Lease shall be joint and several
(c) Use of Pronoun, The use of the neuter singular pronoun to refer to Landlord or Tenant shall be deemed a
proper reference even though Landlord or Tenant maybe an individual, a partnership, a corporation, ora-group of two or
more individuals or corporations. The necessary grammatical changes required to make the provisions of this Lease
apply in the plural number where there is more than one Landlord or Tenant and to corporations, associations,
partnerships, or individuals, mates or females, shall in all instances be assumed as though in each case fully expressed.
(d) ruction of Lease. Although the printed provisions of this Lease were drawn by Landlord, this Lease
shall not be construed for or against Landlord or Tenant; rather, this Lease shall be interpreted In accordance with the
general tenor of the language in an effort to reach the intended result.
Section 18.02 Quiet Enlovment.
So long as Tenant shall pay timely the Rent as set forth 'in this Lease and observe and perform of all of the
agreements, covenants, terms, and conditions on Tenant's panto be observed and performed, Tenant shall peaceably
and quietly hold and enjoy the Premises for the Term without hindrance or interruption by Landlord or any other person or
persons lawfully claiming by, through, or under Landlord, subject, nevertheless, to the terms and conditions of this Lease,
and any Mortgage, leases and other matters to which this Lease is subject or subordinate.
Section 18403 Notices.
Any notice, demand, request, approval, consent, or other instrument which may be or is required to be given
under this Lease ("Notice") shall be in writing and sent to the address(es): set forth In the Fundamental Lease Provisions
by postage prepaid, registered or certified mail (return receipt requested), or by nationally recognized expedited delivery
service which provides proof of delivery. If mailed, Notice shall be deemed to have been given on the date when actually
received or refused or, In the case of Notice delivered by nationally rooogrilx9d expedited delivery service, when received.-
Landlord may also deliver any such Notice to Tenant by delivery in person at such notice address or at the Premises and,
in such event, Notice shall be deemed to have been given when so delivered, the affidavit of the person making personal
delivery shall be conclusive proof of delivery and of the delivery time and date. Notices given by Landlord may be given
on its behalf by Agent or by any attorney for Landlord or Agent. Any Notice property sent to Tenant shall be deemed
effective whether or not a copy is sent to the address designated In the Fundamental Lease Provisions to receive a copy.
All changes of notice address requested by Tenant shell only be valid and binding on Landlord If executed by a, duly
authorized officer, partner, or owner of Tenant.
Section 18.04 Real„ tat lave%meet TR¢t.
if the ownership of the Shopping Center is in a (teal Estate Investment Trust ("REIT") Landlord and Tenant agree
that all Rent shall qualify as "rents from real property" within the meaning of Section 858(d) of the Internal Revenue Code
of 1:980, as amended (the "Code") and the U.S. Department of Treasury Regulations promulgated thereunder (the
"Regutations"). Should the Code, or the Regulations, or Interpretations thereof by the Internal Revenue service
.contained in the Revenue Rulings, be changed so that any Rent no longer qualifies as °rent from real property" for the
purposes of Section W(d) of the Code and the Regulations, other than by reason of the appfioation of Section
856(d)(2XB) or 8WdX6) of the Code or the related Regulations, such Rent shall be adjusted so that it will so qualify;
provided, however, that any adjustments required pursuant to this Section shall be made so as to.produosthe equivatent
(in economic terms) Rent as payable prior to such adjustment and that such adjustments shall not result In any increase in
Tenant's Rent.
Section 18.05 Reciprocal Easement Aureemient.
Tenant understands and agrees with Landlord that, notwithstanding anything to the contrary contained in this
Lease, the Shopping Center (including, without limitation, the Common Areas and the Premises) is and shall be subject,
subordinate, and otherwise junior to any reciprocal or cross easement agreement (as they may be or may have been
created, amended, supplemented, or otherwise modified from time to time) between Landlord and each party thereto
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(such easement agreements herein collectively called the "REA').
Section 18.06 Relationship of Parties.
Nothing contained in this Lease shall be deemed or construed as creating the relationship of principal and agent,
partnership, or joint venture between the parties hereto or cause Landlord to be responsible in any way for Tenant's acts,
debts, or obligations.
Section 18.07 Successors.
Except as otherwise specifically set forth in this Lease, all rights, obligations, and liabilities herein given to or
imposed upon Landlord, Agent, Tenant, and Guarantor shall extend to and bind the several respective heirs, executors,
administrators, trustees, receivers, legal representatives, successors and assigns of such parties; however, no rights shall
inure to the benefit of any assignee, legal representative, trustee, receiver, legatee, or other personal representative of
Tenant unless the assignment to such party has been consented to by Landlord In writing.
Section 18.08 Survival of Obligations.
Ail of Tenant's obligations accruing during the Term pursuant to Sections 4.04, 4.05, 4.06, 5.01, 5.02, 7.03, 7.07,
8.06, 11.03, 11.05, 11.06, 16.03, 18.09, and as otherwise specifically set forth In this Lease, shall survive the expiration or
earlier termination of the Term.
Section 18.09 Broker's Commssi
Landlord and Tenant represent and warrant that they have had no dealings, negotiations, or consultations with
respect to the Premises, the Shopping Center or this transaction with any broker or finder exce t
exception of Agent, no broker or finder called the Premises or any other space in the p Agent and that, with the Shopping Center to attention for lease. In the event that any broker or finder other than Agent claims to have submitted the Premise oraany
other space in the Shopping Centerto Tenant, to have induced Tenant to Iowa the-Premisas, or to have taken part in any
dealings, negotiations, or consultations with respect to the Premises, the
the then then the
party having failed to disclose such contact will be responsible for and'will defend, Shopping or this a transaction,
Agent harmless from and against all costs, fees (including attorneys' fees), ex Indemnify, and save the other party and
suffered by such party and/or Agent as a result thereof. Such agreement shall survive posses, survive s, and claims incurred er
termination of this Lease. the expiration or eerier
Section 18.10 1113Widity: Severability.
It is the intention of the parties hereto that If any provision of this Lease is capable of two constructions, one of
which would render the provision invalid and the other of which would render the provision valid, then the provision shall
have the meaning or meanings which would render it valid. If any tern, condition, or covenant of this Lease or the
application thereof to any persons or circumstances shall, to any extent, be Invalid or unenforceable, the remainder of this
Lease or the application of such term or provision to the persons or circumstances, oUter than those as4o which It is held
Invalid or unenforceable, shall not be affected thereby, and each term, condition, and covenant shall be valid and enforced
to the fullest extent permitted by law. Furthermore, each covenant, agreement, obligation and other provision contained in
this Lease is and shall be deemed and construed as a separate and independent covenant of the party bound by,
undertaking, or making the same, and not dependent on any other provision of this Lease unless expressly so provided.
Section 18.11 Time of thes?ence.
Time Is of the essence with respect to the performance of the respective obligations of Landlord and Tenant set
forth in this •Lease.
Section 18.12 Aaalfcable Law.
The taws of the state in which the Shopping Center Is located shall govern the validity, performance, and
enforcement of this Lease. Any party to this Lease instituting legal suit or action for enforcement of any obligation
contained herein shall do so only in the state in which the Shopping Center is located.
Section 18.13 WWalver.
Landlord shall not be deemed to have waived any covenant, term, agreement, or condition of this Lease unless
such waiver is in writing and executed by Landlord. Landlord's waiver of any breach of any Lease covenant, term,
agreement, or condition shall not be deemed to be a waiver of any subsequent breach of the same or any other Lease
covenant, term, agreement or condition. The subsequent acceptance by Landlord of Rent due hereunder shall not be
deemed to be a waiver of any preceding breach by Tenant of any Lease covenant, tern, agreement, or condition, other
than the fallure of Tenant to pay the particular Rent so accepted, regardless of Landlord's knowledge of such preceding
breach at the time of its acceptance of the Rent. Landlord's waiver with respect to one or more tenants or occupants of
the Shopping Center shall not constitute a waiver in favor of any other. Landlord's consent to any act by Tenant requiring
Landlord's consent shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any
subsequent similar act by Tenant.
Section 18.14 Accord and Satisfaction.
Tenant's payment or Landlord's receipt of a lesser amount of Rent than the amount stipulated in this Lease shall
be domed to be on account of the earliest stipulated Rent then due and payable. Tenant agrees that La
ndlord shall not
be bound by any endorsement or statement on any check or any letter accompanying any heck or payment and no such
endorsement, statement or letter shall be deemed an accord and satisfaction, whether such check or letter is forwarded to
Landlord's lock box or directly to Landlord, Agent or elsewhere. Furthermore, Landlord or-Landlord's bank may accept
such check or payment without prejudice to Landlord's rights and remedies to recover the balance of Rent or pursue any
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other right or remedy available to it.
Section 18.15 Comor Ito Tenants.
If Tenant's form of organization is as an entity (rather than a natural person), the persons executing this Lease on
behalf of Tenant hereby covenant and warrant that: Tenant is a duly constituted entity qualified to do business in the state
in which the Shopping Center is located; all Tenant's franchise, corporate and other lienable taxes have been paid to date;
all future forms, reports, fees, and documents necessary for Tenant to comply with applicable laws will be filed by Tenant
when due; and such persons are duly authorized by the governing body of such entity to execute and deliver this Lease
on behalf of the entity.
. Section 18.16 Recordina.
This Lease shall not be recorded and Tenant shall not record a short form or memorandum of lease; however,
Landlord shall have the right to record a short form or memorandum of lease, at Landlord's expense, at any time during
the Tenn, and Tenant shall execute same.
Section 18.17 Agent of Landlord- Service pro viders.
(a) Agent of Landlord. PREIT Services, LLC and/or PREIT-Rubin, Inc. has acted as Landlord's agent
("Agent") in connection with the execution of this Lease and shall not in any even be held liable to Landlord or to Tenant
for the fulfillment or non-fulfillment of any of the terms, covenants, or conditions of this Lease or for any action or
proceeding that may be taken by Landlord against Tenant or by Tenant against Landlord. Any waiver of Landlord's
liability hereunder (including any waiver of subrogation fights) shall apply with equal force and effect as a waiver of
Agent's liability.
(b) Service Providers. Any services which Landlord is required to furnish pursuant to this Lease may, at
Landlord's option, be furnished from time to time, in whole or in part, by employees of Landlord or Agent or its employees
or by one or more third persons hired by Landlord or Agent Tenant agrees that upon landlord's written request, it will
enter into direct agreements with Agent or other parties designated by Landlord for the furnishing of any such services
required to be furnished by Landlord, in form and content approved by Landlord, provided, however, that no such contract
shall result on an estimated basis in Tenant having to pay In the aggregate more money on account of its occupancy of
the Premises under the terms of this Lease, or having to receive fewer services or services of a lesser quality than it is
presently entitled to receive under this Lease.
Section 18.18 Finalization of Charges.
Notwithstanding anything to the contrary contained In this Lease, Tenanrs failure to object to any statement,
invoice, or bill tendered by Landlord within a period of one hundred eighty (180) days after Tenant's receipt shall
constitute Tenanrs acquiescence with respect thereto and shall render such statement, invoice, or billing a final and .
binding account between Landlord and Tenant. The foregoing provision shall supersede any right to audit or request
supporting documentation from Landlord which may otherwise be provided by this Lease and is not intended to grant any
such right to Tenant not otherwise expressly provided elsewhere In this Lease.
Section 18.19 _Financial Information.
Within twenty (20) days of Landlord's written request, Tenant agrees (1) to deliver to Landlord such financial
information concerning Tenant, Guarantor and Tenanrs and Guarantor's business operations as Landlord, any
Mortgagee, prospective mortgagee, purchaser, or prospective purchaser, may request and In a forth acceptable to such
requestor; and/or (ii) to provide Landlord with written authorization to perform a credit check of Tenant and/or Guarantor
on a form acceptable to Landlord.
If the financial or credit rating of Tenant and/or Guarantor is not acceptable to Landlord,. Landlord shall have the
right to cancel this Lease If Tenant refuses to execute or supply such additional assurances and/or guarantors as
Landlord shall require within thirty (30) days after Landlord's request, which request may not be made after Landlord
delivers possession of the Premises to Tenant. After Landlord delivers: possession of the Premises to Tenant, Tenant's
failure to provide Landlord with a financial statement and/or credit check authorization shall constitute an Event of Default.
If Landlord exercises Its cancellation right, this Lease shall be deemed null and void, each of the parties shall be released
from any other or further liability, any Security Deposit shall be refunded to Tenant without interest, and neither party shall
have any liability to the other by reason of such cancellation.
Section 18.20 Tenant's Guarantor.
Attached hereto as Exhibit D is a Guarantee of Lease executed by Henry H. Davenport ("Guarantor"). Tenant
acknowledges that Landlord would not have executed this Lease with Tenant unless Guarantor agreed to execute the
Guarantee. Landlord and Tenant further agree that in the event Landlord, In its reasonable judgment, determines at any
time that Guarantor's credit worthiness, economic strength, or financial status falls below an acceptable level, or if
Guarantor breaches or otherwise repudiates its obligations under the Guarantee, or if any bankruptcy or other similar
proceeding is filed by or against Guarantor and not dismissed within sixty (60) days thereafter, or If Guarantor is an
individual and Guarantor dies or becomes incompetent, then Landlord may, upon written demand to Tenant, require
Tenant within thirty (30) days thereafter to deliver to Landlord alternative or additional security in a form and substance
reasonably satisfactory to Landlord so that Landlord will not be deprived of adequate assurance of Tenant's financial
ability to comply with its obligations imposed by Lease. Failure to submit timely such alternative or additional security
shall be deemed an Event of Default.
Section 18.21 Notice to Mortgagee; Performance of Landlord's 4bIluations.
If Landlord or Mortgagee forwards to Tenant written notice of the existence of a Mortgage, then Tenant shall, so
long as the Mortgage is outstanding, be required to give to Mortgagee the same notice and opportunity to correct any
DavenportsltaNanOven-CapitaiCky-Final
June 17, 2008 \ TrachtmaNGO 31
default as is required to be given to Landlord under this Lease, but Tenant may issue its notice of default to Landlord and
Mortgagee concurrently. Tenant shall accept performance of any of Landlord's obligations hereunder by Mortgagee.
Section 18.22 Unavoidable Delays.
In the event that Landlord, Agent, or Tenant shall be delayed or hindered In or prevented from the performance of
any act required hereunder by reason of strikes, lockouts, inability to procure labor or materials, failure of power,
restrictive governmental laws or regulations, pandemic or vlraltbacteriologlcal outbreak, riots, Insurrection, war (whether
actual or threatened), lack of access to the Shopping Center or Premises due to evacuation or temporary closure
(including evacuation or temporary closure of the Shopping Center or Premises by Landlord, government, or police order
due to a perceived, threatened, or actual unsafe condition as determined by Landlord, government, or police), damage or
governmental order, fire or other casualty or other reason of a similar or dissimilar nature beyond the reasonable control
of the party delayed in performing work or doing acts required under the terms of this Lease (an "Unavoidable Delay"),
then performance of such act, but not Tenant's obligation to pay Rent, shall be excused for the;period of the Unavoidable
Delay. The occurrence of an Unavoidable Delay shall not operate to excuse Tenant from completing construction of the
Premises within timeframe set forth in Article 2 of this Lease unless Tenant gives written notice to Landlord of the nature
and claimed number of days of the Unavoidable Delay within ten (10) days of its occurrence, and Landlord, upon its
reasonable satisfaction, shall extend the period of time for Tenant's Work equivalent to the number of days of actual
delay. After the Rent Commencement Date, an Unavoidable Delay shag not excuse Tenant from the timely payment of
Rent and other sums due by Tenant under this Lease, and such Unavoidable Delay shall not extend the Term. Delays or
failures toperform resulting from lack of funds or the unavailability of a particular contractor or personnel shalt not be
deemed Unavoidable Delays.
Section 18.23 Prior Lease.
(a) Prior Lease. Tenant is presently occupying the Premises pursuant to a lease agreement with Landlord
(the aforesaid agreement and any amendments thereto being hereinafter referred' to as the "Prior Lease").
(b) Termination. Unless the Prior Lease has been terminated prior to the Rent Commencement Date, the
execution of this Lease shall be deemed to satisfy the requirements with respect to notice of termination set forth
anywhere in the Prior Lease and, therefore, the Prior Lease shall terminate on the day prior to the Rent Commencement
Date of this Lease without the necessity of any other or further notice to or from either party. 'Notwithstanding the
foregoing, In the event Tenant is relocating and Tenant holds over under the Prior Lease beyond the termination of the
Prior Lease, Tenant will be subject to all holdover obligations pursuant to the terms of the Prior Lease including, but not
limited to, the payment of all rent and other charges set forth therein.
(c) Failare to Comply. In the event Tenant has failed to comply with any. of its obligations under the Prior
Lease and such failure is continuing, Landlord may treat such failure as having,occurred under this Lease and shall have
the right to exercise any and all of .Landlord's rights and remedies set forth in this Lease andlor available to it at law or in
equity.
(d) Release, As an inducement to Landlord to execute this Lease, Tenant hereby releases and forever
discharges Landlord from all manner of action;. causes of action, suits, covenants, controversies,.agreements, promises,
damages, claims, and demands, at law or in equity, which Tenant has or may have against Landlord arising out of the
Prior Lease
Section 18.24 Anti-Terrorism Law.
(a) Tenant represents and warrants to Landlord as follows:
(i) neither Tenant, its constituents or affiliates nor any of their respective agents (collectively, the
"Tenant Parties") are in violation of any law relating to terrorism or money laundering Including,
but not limited to, Executive Order No. 13224 on Terrorist Financing, the :U.S. Bank Secrecy Act,
as amended by the Patriot Act, the Trading with the Enemy Act, the International Emergency
Economic Powers Act and all regulations promulgated thereunder, all as amended from time to
time (collectively, "Anti-Terrorism Law");
(?i) no action, proceeding, investigation, charge, claim, report, or notice has been filed, commenced,
or threatened against any of the Tenant Parties alleging any violation of any:Anti-Terrorism Law;
(iii) none of the Tenant Parties has, after due inquiry, knowledge of any fact, event, circumstance,
situation or condition which could reasonably be expected to result in any aeon, proceeding,
investigation, charge; claim, report, notice or penalty being flied, commenced, threatened or
imposed against any of them relating to any violation of or failure to comply with any Anti-
Terrorism Law;
(iv) none of the Tenant Parties is a "Prohibited Person". A Prohibited Person means any of the
following:
a. a person or entitythat is "specially designated" on the most current list published. by the
U.S. Treasury Department Office of Foreign Assets Control or which is owned, controlled
by or acting for or. behalf of any such person or entity;
b. a person or entity with whom Landlord is prohlblted from dealing by any Anti-Terrorism
Law; or
C. a person or entity that commits, threatens, or conspires to commit or supports 'terrorism'
(as defined In any Anti-Terrorism taw).
(v) none of the Tenant Parties:
a. conducts any business or transactions or makes or receives any contribution of funds,
goods, or services in violation of any Anti-Terrorism Law; Or
b. Engages in or conspires to engage in any transaction that. evades or avoids, has the
purpose of evading or avoiding or attempts to violate any of the prohibitions of any Anti;
Terrorism Law.
Davenport 1taNanOven-ca.PIWCWinaI
June 17, 2008 \ TrachtmonlGO 32
(b) Tenant covenants that it shall not:
(1) conduct any business or transaction or make or receive any contribution of funds, goods, or
services in violation of any Anti-Terrorism Law; or
(ii) engage in or conspire to engage in any transaction that evades or avoids, has the purpose of
evading or avoiding or attempts to violate any of the prohibitions of any Anti-Terrorism Law.
(c) Tenant agrees to promptly deliver to Landlord (but in any event within ten (10) days of Landlord's written
request) any certification or other evidence requested from time to time by Landlord, in its reasonable discretion,
confirming Tenant's compliance with the foregoing requirements.
Section 18.26 Waiver of Jury Trial.
Landlord and Tenant hereby waive all right to a trial by jury in any litigation related to this Lease including any
mandatory counterclaim or cross claim.
Section 18.26 Cortfldentiality.
It is agreed and understood that Tenant may acknowledge only the existence of this Lease by and between
Landlord and Tenant and that Tenant may not disclose any of the terms and provisions contained in this Lease to any
tenant or other occupant in the Shopping Center or to any agent, employee, subtenant, or assignee of such tenant or
occupant. Tenant acknowledges that any breach by Tenant of the agreements set forth in this Section shall cause
Landlord irreparable harm. The terms and provisions of this Section shall survive the termination of this 'Lease (whether
by lapse of time or otherwise)_
Section 18.27 Renewal Oations.
(a) Provided that Tenant is not in default hereunder at the time of [each] exercise, Tenant shall have and is
hereby granted two (2) separate options to extend the Term of this Lease upon the terms, covenants, conditions and
provisions set for* herein for two (2) periods of five (5) years each; provided that at the time an option to renew is
exercised, the Term of this Lease' shall be In effect:
(b) Such options shall be exercisable by Tenant giving written notice to Landlordof its intention to exercise
the same at least seven (7) months prior to the expiration of the then current Tenn. Upon receipt by Landlord of such
notice, provided that Tenant shall then have the right to exercise such option, the Term of this Lease shall be extended in
accordance with the provisions thereof, without the necessity of any further act or documentation by Landlord or Tenant.
In the event Tenant fails to exercise any such option within the time and in the manner. aforessid.(regardless of whether
such failure shall be a result of Tenant's not having the right to exercise such option), then this right and option shall
terminate and be null and void without the necessity, of any further act or documentation by Landlord or Tenant, and the
Term of the Lease shall terminate in accordance, with the provisions set forth elsewhere herein.
(c) During the option terms, Tenant shall pay Landlord Minimum Rent as follows:
Time Period Annual ount' Monthly Amount
From the 121$( month
through the 1800' month $130,000.00` $10,833.33
From the 181" month
through the 2401h month $140,000.00 $11,666.67
(b) During the option terms; Tenant shall pay Percentage Rent as follows:
Tlrne Period Weak Point
Percentage -Rate
From. the 121'1 month
through the 180"' month $3,250,000.00 Four Percent (4%)
From the 18181 month
through the 240`" month $3,500.000.00 Four Percent (4%)
Section 18428 Liquor License.
Landlord is in the process of acquiring a retail Liquor License (License No. R-20526) ("Liquor License") for use in
the Premise. The acquisition of the Liquor License shall be concluded by use of an entity affiliated with Landlord or
Pennsylvania' Real Estate Investment Trust but Landlord will permit Tenant and its employees to be designated as the
operator of such company along with such officers as Landlord may choose to designate, so that Tenant's employees will
be authorized to dispense alcoholic beverages in the operation of its restaurant on the Premises by means of using such
entity. Beneficial ownership and control of such entity shall remain wholly with Landlord or an: entity related to it. Tenant's
use of such Liquor License shall be coterminous with the term of this Lease. During its use of f#te Liquor License, Tenant
shall comply with all applicable laws, rules, and regulations required to utilize the same and pay all applicable fees, costs,
and expenses relating to such use. If Landlord is aide to aoquire--the Liquor License, Landlord and Tenant shall enter into
agreements prepared by Landlord's counsel, which shall provide that theficense shall only be used on the Premises and
shall be returned to Landlord upon termination, or earlier expiration of the Lease. The execution of such agreements shall
be a condition precedent to the use by Tenant of the Liquor License. In the event Landlord has been unable to acquire the
Liquor License by September 30, 2008, Tenant may delay its opening for business In the Premises until such acquisition
his been made. If such acquisition has not been made by December 31, 2008, Tenant may elect to terminate this Lease.
Tenant represents the Landlord that its officers do not have a criminal record and otherwise will meet all applicable
requirements for operating a retail liquor license in the state of Pennsylvania. Tenant will use Its best efforts to timely
execute any agreements required to implement the foregoing paragraph. In operating the Premises, Tanana shall at its
expense cause the complete satisfaction of any citations that maybe Issued as a result of non-compliance by Tenant with
DavenportsltexanOven-CapitWC tyAnat
June 17, 2008 't Trachtman/GO 33
the appropriate use of the Liquor License.
Section 18.29 212raoe Space.
Landlord hereby grants to Tenant for the term (referred to as "Licensee" for the provisions of this Section) for
the Term a license to occupy storage space number (the "Storage Space") as shown on Exhibit "A" attached hereto
and containing approximately 17 square feet by 7 square feet. Landlord shall have no construction obligation with respect
to the Storage Space and Tenant shall take possession of such Storage Space on or before the Required Opening date in
"as-is" condition.
Tenant shall pay Landlord a fee for the License in the amount of Three Thousand Six Hundred Dollars ($3,600)
per Lease Year (the "License Fee") payable in equal monthly installments on or before the first day of the month. In
addition Tenant shall pay Landlord a proportionate share of Taxes pursuant to Section 5.02 of this Lease based on the
GLA of the Storage Space. Licensee shall pay such sums on or before the first day of the month. Tenant shall pay the
cost of all utilities consumed In accordance with the provisions of Article 6 of this Lease. Tenant's failure to make any of
the payments set forth in this paragraph shall be considered an Event of Default and Landlord shall be entitled to all the
right and remedies at law and in equity and as provided In Article 16 of the Lease.
Landlord and Tenant acknowledge that, except as specifically set forth in this Section, the Storage Space shall be
deemed a part of the Premises and all other references in the Lease to the Premises shall mean and refer to and be
deemed to include the Storage Space. Notwithstanding the foregoing, restrictions on Landlord's management of
Common Areas (including, but not limited to, restrictions affecting visibility of the Premises and restrictions on the location
of kiosks) and Tenant's signage rights shall not apply with respect to the Storage Space.
Section 18.30 Oil Storage Tanks.
Tenant shall have the right, at a location reasonably approved by Landlord, to install one or more soy bean oil
storage tanks for use by Tenant in the Premises. Such tanks shall be installed by Restaurant Technologies, Inc. In a
means and manner approved in advanced by Landlord.Tenant shall be solely responsible for any leakage or spillage of oil
from such tanks and Tenant will at its sole costs and expense promptly dean up any such spillage and shall indemnify,
defend and hold Landlord harmless from the consequences of the use of such tanks Including spillage or leakage
therefrom. Such obligation shall survive the expiration or earlier termination of this Lease. Upon the termination of this
Lease Tenant shall remove the oil storage tanks at Its sole costs and expense.
Section 18.31 Asset Purchase Agreement.
Pursuant to an asset purchase agreement executed between Landlord or its Agent . and Tenant, Landlord has sold
to Tenant for use in the Premises certain equipment abandoned in place by the prior occupant of the.Premises. Such
agreement requires Tenant to make certain payments to Landlord and Tenant agrees to make the same, as additional
rent under the provisions of this Lease. Among other items, the equipment and furniture being acquired by Tenant
pursuant to such agreement Includes the existing bar, storefront and tin calling in the Premises. In the event Tenant
vacates the Premises prior to the expiration of this Lease or this Lease Is otherwise terminated prior -to its stated
expiration date, or upon the expiration of the Term, Tenant agrees not to remove such items from the Premises but rather
will convey to Landlord by means of a bill of sale, all Tenant's right, title and interest in and to the bar and the tin ceiling
which items shall be valued at Thirty Five Thousand Dollars ($35,000.00) and for which Landlord shall ;pay Tenant the
then unamortized portion of that value (amortized over the initial term of the Lease). Landlord shall make such payment to
Tenant within ten (10) days after Tenant executes such bill of sale provided however in the event Tenant owes any sums
pursuant to the terms of this Lease, rather than making such payment Landlord may offset the amount due Tenant
pursuant to this Section against the amount owed by Tenant to Landlord.
Section 18.32 Entire Agreement.
(a) This Lease sets forth all of the covenants, promises, agreements, conditions, and understandings
between Landlord and Tenant concerning the Premises and the Shopping Center. All prior communications, :rregotlations,
arrangements, letters of Intent, brochures, representations, promises, warranties, agreements, and understandings,
whether oral or written, between the parties hereto and their representatives, are merged herein and extinguished, and
this Lease supersedes and cancels the same. Except as otherwise provided herein, no subsequent alteration,
amendment, change, or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writklg and
executed by the party against which such subsequent alteration, amendment, change, or addition is to be enforced.
(b) Tenant hereby acknowledges that (i) this Lease contains no restrictive covenants or exclusives in favor of
Tenant; (it) this Lease shall not be deemed or interpreted to contain, by implication or otherwise, any warranty,
representation, or agreement on the part of Landlord that any department store, major tenant, or regional or national chain
store or any other merchant shall open for business or occupy or continue to occupy any premises in or adjoining the
Shopping Center during the Term or any part thereof, or that Tenant shall generate a certain amount of Gross Sales, or
clammy reimbursable amount payable by Tenant shall be any specific amount; and Tenant hereby expressly waives all with respect to the foregoing and acknowledges that Tenant is not relying on any such warranty, representation, or
agreement by Landlord as a matter of inducement in entering into this Lease, as condition of this Lease, or as a covenant
by Landlord.
Section 18.33 Submission of Lease to Tenant.
THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE NO BINDING FORCE OR
EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR LEASING OF THE PREMISES, AND SHALL NOT CONFER
ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITHER PARTY UNTIL THE EXECUTION BY LANDLORD AND
THE DELIVERY OF AN EXECUTED ORIGINAL COPY TO TENANT OR ITS REPRESENTATIVE.
Section 18.34 Acknowledgement.
DavenportsitallanOven-CapitalCity-Final
June 17, 2008 i Trachtman/Go 34
THE UNDERSIGNED ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE CONFESSIONS OF
JUDGMENT CONTAINED IN SECTION 16.02 AND THAT THE LANDLORD-TENANT RELATIONSHIP CREATED BY
THIS LEASE IS COMMERCIAL IN NATURE. TENANT WAIVES ANY RIGHT TO A HEARING WHICH OTHERWISE
WOULD BE A CONDITION TO LANDLORD OBTAINING THE JUDGMENTS AUTHORIZED 13Y SUCH SECTIONS
AND AGREES THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT LANDLORD MAY OBTAIN A
JUDGMENT AGAINST TENANT WITHOUT FURTHER PRIOR NOTICE TO TENANT, AND LANDLORD MAY
THEREAFTER GARNISH OR ATTACH AND PLACE A LIEN ON TENANT`S ASSETS OR PROPERTY-WITHOUT
PRIOR NOTICE OR OPPORTUNITY FOR A HEARING. TENANT HAS CONSULTED WITH AN ATTORNEY
REGARDING THE RIGHTS BEING WAIVED HEREUNDER, HAS BEEN FULLY ADVISED OF THOSE RIGHTS, AND
KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS; OR TENANT HAS HAD THE
OPPORTUNITY TO CONSULT WITH AN ATTORNEY AND KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY
WAIVES THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING THE WAIVER OF THESE RIGHTS
AND NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS.
IN WITNESS WHEREOF, Landlord and Tenant, personally or by their duly authorized agents, have executed this
Lease as of the date first above written.
1<sun? non.
Davenriorfseallanoven-CspitalC ty.Final
June 17, 2008 1 Trachhnardoo 35
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EXHIBIT B: UTILITIES
Section 6,01 of the Lease provides for the inclusion of this Exhibit as the basis for the determination of utilities used by
Tenant in the premises and the monthly payment therefor.
(a) 9jQQWY. Landlord will provide, or cause to be provided at points in or near the Premises facilities to
supply electricity to the Premises. Tenant agrees to purchase and pay for such electricity service, as Additional Rent,
every month in the Term; provided that Tenant shall not be obligated to pay to Landlord an amount in excess of the
amount which Tenant would otherwise be obligated to pay if Tenant were served directly by the Incumbent public unity,
municipality and/or governmental body or authority supplying such utility. Landlord reserves the right from time to time to
designate an alternative electric generation supplier to serve the Shopping Center and the Premises, and Landlord shall
have the right from time to time to change the Identify of such supplier as Landlord deems appropriate. To the extent
Landlord receives electric service from an alternative electric generation supplier, Landlord's charges to Tenant for electric
service shall not In any event be below Landlord's actual cost to provide such service to Tenant. Landlord reserves the
right to collect an additional administrative charge not to exceed fifteen percent (15%) of Tenant's electricity charge
described above. Such administrative charge shall be subject to an Increase of up to three percent (3%) per Lease Year.
Tenant shall also be responsible for any taxes, surcharges, impositions, penalties and other additional charges
attributable to the utility service being supplied, provided that such taxes, surcharges, Impositions and other charges are
required by law to be collected from Tenant or are paid by Landlord to its supplier of the utility service In question.
(b) In the event Landlord shall provide gas, sprinkler or water and. sewer service to the
Premises, Tenant covenants and agrees to pay the gas, sprinkler or water and sewer charge (both minimum and
otherwise) and any other tax, rent, levy, connection :fee or meter or other charge which now or hereafter is assessed,
imposed or may become a Hen upon the,Premises, or the Shopping Center, pursuant to law, order or regulation made or
based In connection with the use, consumption, maintenance or supply of gas, sprinkler or water and sew, sprinkler or water or sewer age, or the gas.
age connection or system. Tenant shag pay all charges for services used by it and supplied by
Landlord, a public unity or public authority, or any other person, firm or corporation. Tenant shall pay the fixed amounts
shown in 1.01(g) of the Lease, or if not specifically set forth, at rates determined by Landlord from time to time, which shall
not exceed the rate charged by the local utility for similar.service.
(c) hk&. In the event the Premises does not presently contain an electric or other utility meter, Landlord
may install such meter or at Landlord's request Tenant shall, within forty-five (45) days after receipt of such request, at its
sole cost and expense, install a meter of a type and at a location approved in advance by Landlord.
EXHIBIT C: HEATING, VENTILATING, AND AIR-CONDITIONING
Section 6.01 of the Lease provides for the inclusion of this Exhibit as the basis for the determination of utilities and
HEATING, VENTILATING, AND AIR-CONDITIONING ("HVAC," as defined, may include any or all elements of healing,
ventilating and/or air-conditioning) used by Tenant in the Premises and the monthly payment therefor.
Landlord shall not supply HVAC to the Premises and Tenant shall use the existing HVAC unit in the Premises, or
install a new unit If none exists. Landlord, in its sole discretion, shall have the right, from time to time, to alter the HVAC
systems arid equipment serving the Shopping Center or any part thereof, including the Premises, and Tenant agrees to
execute and deliver to Landlord such documentation as may be required to effect such alteration.
Tenant shall not at any time overburden or exceed the capacity of the HVAC systems and equipment serving the
Premises. If Tenant desires or if Landlord deems necessary installation of any additional equipment as revision of the
design of the existing equipment because-of internal loading causing the temperature in the Premises to exceed the
temperature in the Common Areas or other tenant spaces, such installation of additional equipment or revisions of design
shall be subject to Landlord's prior approval of Tenant's plans and specifications and shall be at Tenant's sole cost and
expense. If Landlord approves such additional equipment or revised design and/or if Landlord provides such addMonal
equipment or -revised design, Tenant agrees to pay Landlord, on demand; the cost for providing such additional
equipment or revised design.
Tenant shall operate its heating and air conditioning so that the occupied space temperature of the Premises will
be the same as that In the adjoining mail, and so that the non-0ccupled space temperature of the Premises will be
sufficient to Insure adequate freeze protection of domestic water and sprinkler systems when necessary. Tenant shall
operate ventilation :so that the rotative air pressure In the Premises will be slightly less than in the adjoining mail as
required by Landlord'.
Davenpvrts1tallanOven"Capitan4-Final
June 17, 2W8 % TradhhnantGO 38
EXHIBIT D: GUARANTEE OF LEASE
THIS GUARANTEE made this day of 2008, by Henry H. davenport, having an address at 5220
Simpson Ferry Road, Mechanicsburg, Pennsylvania 17050 ("Guarantor") in favor of PR CAPITAL CITY LIMITED
PARTNERSHIP, having an address at c/o PREIT-Services, LLC, The Bellevue, 200 South Broad Street, 3n0 Floor,
Philadelphia, PA 19102 ("Landlord").
Backaround
On the day of 2008, Landlord entered into an Agreement of Lease (hereinafter,
together amendments thereto are collectively referred to as the "Lease") with DAVENPORT'S ITALIAN OVEN, . with all prior
("Tenant") for certain premises in the CAPITAL CITY MALL, as more particularly described in the Lease (the
"Premises"). Landlord would not have entered into the Lease unless Guarantor had agreed to guarantee to Landlord all
obligations of Tenant pursuant to the Lease,
NOW, THEREFORE, in consideration of the execution of the Lease and other good and valuable considerations,
and intending to be legally bound, the undersigned, he
Landlord, its succeasors reby absolutely unconditionally and irrevocably becomes surety to
, endorsees or assigns, for the full, faithful and punctual performance of each and all of the terns,
covenants, agreements and conditions of the Lease to be kept and performed by Tenant, in accordance with and within
the time prescribed by the Lease, whether at maturity or by declaration, acceleration or otherwise, as well as other
liabilities now or hereafter contracted by Tenant to Landlord, together with costs and expenses of collection incurred by
Landlord, including, without limitation, reasonable attorneys fees incurred by Landlord in connection with any of the
foregoing (hereinafter referred to as the "Liabilities"). The duration of this guarantee shall be determined by Section 18
below. The undersigned further agrees as follows;
1. The liability of the undersigned under this Guarantee shall be primary under any right of action which
shall accrue to Landlord under the Lease, and Landlord may, at its option, proceed' Initiallyand directly against the
undersigned without having to commence any action or having obtained any judgment against Tenant. Guarantor
hereby acknowledges that this Guarantee is an absolute, irrevocable and unconditional :guaranty of payment and
performance and not merely of collection. Landlord may join the undersigned in any action or proceeding against
Tenant.
2. The undersigned waives (a) all notices, including but not limited to, (1) notice of acceptance of this
Guarantee; (!I) notice of presentment, demand for payment, or default by Tenant, (b) all defenses, offsets and
counterclaims which the undersigned may at any time have jointly or severally to any of the Liabliitles; (c) trial by jury
and the right thereto in any proceeding of any kind, whether arising on or out of, under or by reason of this Guarantee,
or any other agreement or transaction between the undersigned, Landlord and/or Tenant; and (d) all notices of a
financial condition or of any adverse or other change In the financial condition of Tenant
3. Landlord shall have the right from time to time, and at any time In its sole discretion, without notice to or
consent from the undersigned, or without affecting, impairing, or discharging, in whole or in part, the liabilities of the
undersigned hereunder, to.modlfy, change, extend, alter, amend, or supplement, in any respect whatever, the Lease or
any agreement or transaction between Landlord and Tenant or between Landlord and any other party liable for the
Liabilities, or any portion or provision thereof, to grant extensions of time and other indulgence of any kind to Tenant; to
compromise, release, substitute, exercise, enforce or fail or refuse to exercise or enforce any claims, rights, or remedies
of any kind which Landlord may have at any time against Tenant or any other party liable for the Liabilities, or any
thereof, or with respect to any security of any kind held by Landlord at any time under any agreement or otherwise. Nor
shall the Liabilities of the. undersigned be affected, impaired or discharged, in whole or In part, by reason of any action
whatsoever taken by Landlord including, without limitation, safe, lease, disposition, liquidation or other realization (which
may be negligent, willful or otherwise With respect to any security in which Landlord may at any time have any interest
or against any other party liable for all or any part of the Liabilities),
4. This Guarantee shalj be a continuing guarantee and the liability of Guarantor hereunder shall in no way
be affected, modified, diminished, impaired or terminated by reason of any of the following, 'whether or not notice thereof
is given to Guarantor: (!) any subletting of all or any portion of the Premises or any assignment or other transfer of
Tenant's interest in the Lease, (11) any consent,: approval, waiver or other action, inaction or omission under or
concerning the Lease, (iii) any modifications, renewals, extensions or amendments of the Lease, (iv) any dealings or
transactions or matter or thing occurring between Landlord and Tenant, or any of them, (v) any bankruptcy, insolvency,
reorganization, arrangement, assignment for the benefit of creditors, receivership or trusteeship affecting Tenant or its
successors or assigns, (vi) the release or discharge of Tenant from the performance or observance of any of the terms,
covenants or conditions contained in the Lease pursuant to the terms thereof, by operation of law, by reason of any of
the events described in Paragraph (v) above, or otherwise, (vii) any change in relationship between Guarantor and
Tenant, (viii) the default or failure of Guarantor to perform any of its obligations set forth in this Guarantee, (ix) any
action which Landlord may take or fad to take against Tenant by reason of any waiver of, or failure to enforce, any of the
rights or remedies reserved to Landlord in the Lease, or otherwise, (x) any failure or refusal of Landlord to re-let the
Premises or any part or parts thereof in the event that Landlord shall obtaln.possession of the Premises after Tenant's
insolvency or default, (xi) any failure to collect rent thereof under any such reletting, and (xii) any other circumstance or
condition that may result in a discharge, limitation or reduction of liability of a surety or guarantor.
5. If Landlord shall be obligated by any bankruptcy, Insolvency or other legal proceedings to repay to
Guarantor or to Tenant, or to any trustee, receiver or :other representative of either of them, any amounts previously
paid by Guarantor pursuant to this Guarantee, this Guarantee shall be deemed reinstated to the extent of that
repayment made by Landlord. Landlord shall not be required to litigate or otherwise dispute its obligation to make such
repayments if, in good faith and on the advice of counsel, Landlord believes that such obligation exists.
Davenport RalianOven-CapitsiCity-Final
June 17, 2008 1 Trachtman/GO 39
6. GUARANTOR COVENANTS AND AGREES THAT IF THERE IS A DEFAULT BY TENANT UNDER
THE LEASE, THEN GUARANTOR HEREBY EMPOWERS ANY PROTHONOTARY, CLERK OF COURT OR
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR GUARANTOR IN ANY AND ALL ACTIONS WHICH
MAY BE BROUGHT FOR ANY LIABILITIES, OR ANY CHARGES HEREBY RESERVED OR DESIGNATED AS
LIABILITIES OR ANY OTHER SUM PAYABLE BY GUARANTOR TO LANDLORD UNDER OR BY REASON OF THIS
GUARANTEE, AND TO SIGN FOR GUARANTOR AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT
AN ACTION OR ACTIONS FOR THE RECOVERY OF SAID LIABILITIES, CHARGES AND OTHER SUMS, AND IN
SAID SUIT OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST GUARANTOR FOR ALL OR
ANY PART OF THE LIABILITIES SPECIFIED IN THIS GUARANTEE AND THEN UNPAID INCLUDING, AT
LANDLORD'S OPTION, THE LIABILITIES FOR THE ENTIRE UNEXPIRED BALANCE OF THE TERM OF THE
LEASE, AND ALL OR ANY PART OF ANY OTHER OF SAID CHARGES OR SUMS, AND FOR INTEREST AND
COSTS TOGETHER WITH REASONABLE. ATTORNEY'S FEES OF 5%. SUCH AUTHORITY SHALL NOT BE
EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME
TO TIME AS OFTEN AS ANY'OF SAID LIABILITIES OR SUCH OTHER SUMS, CHARGES, PAYMENTS, COSTS
AND EXPENSES SHALL FALL DUE OR BE IN ARREARS, AND SUCH POWERS MAY BE EXERCISED AS WELL
AFTER THE EXPIRATION OF THE TERM OR DURING ANY EXTENSION OR RENEWAL OF THE LEASE.
In any action to confess judgment for Liabilities in arrears, Landlord shall first cause to be filed in such action an
affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which.
facts such affidavit shall be conclusive evidence, and if a true copy of this Guarantee (and of the truth of the copy such
affidavit shah be sufficient evidence) be filed in such action, it shall not be necessary to file the original as a warrant of
attorney, any rut of Court, custom or practice to the contrary notwithstanding.
(INITIAL). GUARANTOR WAIVER. GUARANTOR SPECIFICALLY ACKNOWLEDGES
THAT GUAR TOR HAS VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVED CERTAIN DUE PROCESS
RIGHTS TO A PREJUDGMENT HEARING BY AGREEING TO THE TERMS OF THE FOREGOING PARAGRAPHS
REGARDING CONFESSION OF JUDGMENT. GUARANTOR FURTHER SPECIFICALLY AGREES THAT IN THE
EVENT OF DEFAULT, LANDLORD MAY PURSUE MULTIPLE REMEDIES INCLUDING OBTAINING A MONEY
JUDGMENT FOR PAST DUE AND ACCELERATED LIABILITIES AND EXECUTING UPON SUCH JUDGMENT.
FURTHERMORE, GUARANTOR SPECIFICALLY WAIVES ANY CLAIM AGAINST LANDLORD AND LANDLORD'S
COUNSEL FOR VIOLATION OF GUARANTOR'S CONSTITUTIONAL RIGHTS IN THE EVENT THAT JUDGMENT IS
CONFESSED PURSUANT TO THIS GUARANTEE.
7. If Landlord shall employ counsel to enforce Guarantors obligations under this Guarantee or any part
thereof, Guarantor agrees to pay on demand all of Landlord's costs in connection therewith, whether suit be brought or
not, including, without limitation, reasonable attorney's fees and disbursements.
8. The undersigned and each of them agree and consent to the exclusive jurisdiction as set forth in the
Lease in any.and all actions and proceedings whether arising hereunder or under any other agreement or undertaking.
The undersigned waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit,
action or proceeding brought in any such court, any claim that Guarantor is not subject personally to the jurisdiction of
such courts, that Guarantor's property Is exempt or immune from attachment or execution, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this
Guarantee or the subject matter hereof may not beenforced in or by such court, and further agrees to waive, to the
fullest extent permitted under applicable law, the benefit of any defense that would hinder, fetter or delay the levy,
execution or collection of any amount to which Landlord or its successors or assigns are entitled pursuant to the final
judgment of any court having jurisdiction.
9. Guarantor hereby consents to service of process by certified or registered mail at Guarantor's address
as provided in Section 15 below or in any other manner permitted by law. Guarantor agrees that service in the
foregoing manner shall be deemed, in every respect, effective service of process upon Guarantor and be taken and
held to be valid personal service upon, and personal delivery to, Guarantor. Guarantor agrees that Guarantor's
submission to jurisdiction and consent to service of process by mail is made for the express benefit of Tenant.
10. The waiver of any right by Landlord or failure to exercise promptly any right shall not be construed as
the waiver of any other right to exercise the same at any time thereafter. All rights and remedies of Landlord are
cumulative and not alternative. if any part hereof is determined to be Mega[. or unenforceable, such part shall be
deemed stricken (or reformed as necessary to eliminate such illegal or unenforceable part but no further) and the
remainder hereof shall be unaffected and shall remain in full force and effect. If this Guarantee in its entirety shall be
held ineffective or unenforceable by any court of competent jurisdiction then the undersigned shall be deemed to be a
tenant under the Lease with the same force and effect as If the undersigned had executed the Lease as Tenant or were
named as a joint tenant therein and were jointly and severally liable with Tenant thereunder. This Guarantee shall be a
continuing guarantee and security agreement and shall continue and remain in full force and effect until all of the
Liabilities have been completely and satisfactorily performed or otherwise discharged by Tenant; the undersigned shall
not in any way be released of its obligation to Landlord under this Guarantee so long as any claim of Landlord against
Tenant is not satisfied, settled on discharged in full. This Guarantee. shall survive the expiration of the term of the Lease.
11. Guarantor represents and warrants to Landlord that:
(A) Guarantor has full power, authority and legal right to cause this Guarantee to be signed and delivered,
and to perform and observe the provisions of this Guarantee, including, without limitation, the payment of all moneys .
hereunder.
(B) This Guarantee constitutes the legal, valid and binding obligation of Guarantor, and is enforceable in
accordance with its terms, except as such enforceability maybe limited by reason of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws; ordinances, rules or regulations affecting the enforcement of
cteditors' rights generally, or (ii) general principles of equity.
DevenportsltalianOven•CapitalCity-Final
June 17, 2008 1 Trachtman/GO 40
P (1) Guarantor, as of the date hereof, is not in vlolaWn of any decree, ruling, judgment, order or
inJunction applicable to it nor any law, ordinance, rule or regulation of whatever nature, nor (ii) are there any actions,
proceedings or investigations pending or threatened against or affecting Guarantor (or any basis therefor known to
Guarantor) before or by any court, arbitrator, administrative agency or other governmental authority or entity, any of which
under (1) or (ii) above, If adversely decided, would materially or adversely affect Guarantor's ability to carry out any of the
terms, covenants and conditions of this Guarantee.
(D) Neither the execution and delivery of this Guarantee, nor the consummation of the transactions herein
contemplated, nor compliance with the terms and provisions hereof, conflict or will conflict with or result in a breach of any
of the terms, conditions or provisions of any order, writ. Injunction or decree of any court or governmental authority, or of
any agreement or instrument to which Guarantor is a party or by which Guarantor is bound, or constitute or will constitute
a default thereunder.
12. Landlord may, without notice, assign this Guarantee in whole or in part. No assignment or transfer of
the Lease or subletting of the Premises shall after, extinguish or diminish the liability of the undersigned hereunder.
13. (A) The liability of the undersigned shall be joint and several, shall bind the respective heirs, executors,
administrators and personal representatives of the undersigned and shall inure to the benefit of Landlord, its successors
and assigns.
(B) No delay on the part of Landlord in exercising any right, power or privilege under this Guarantee, nor
any failure to exercise the same, shall operate as a waiver of, or otherwise affect, any right, power or privilege of Landlord
under this Guarantee, nor shall any single or partial exercise thereof preclude the further exercise of such, or the exercise
of any other, right, power or privilege of Landlord under this Guarantee.
(C) Neither any waiver or modification of any provision of this Guarantee, nor any termination of this
Guarantee, shall be effective unless in writing and signed by the party against which the waiver, modification or
termination is sought to be enforced, nor shall any waiver be applicable except in the specific. instance of which it is given.
(D) The validity and enforcement of the Guarantee shall be governed by and construed in accordance
with the Lease and such laws shall apply in any action or proceeding arising out of or under this Guarantee.
(E) A?I remedies afforded to Landlord by reason of this Guarantee are separate and cumulative remedies,
and it is agreed that no one remedy, whether exercised by Landlord or not, shall be deemed to be In exclusion of any
other remedy available to Landlord and shall not limit or prejudice any other fagot or equitable remedy which Landlord
may have.
(F) if any provision of this Guarantee or the application thereof to any person or circumstance shall to any
extent be held void, unenforceable or invalid, then the remainder of this Guarantee or the application of such provision to
parsons or circumstances other than those .as to which It Is held void, unenforceable or invalid, shall not be affected
thereby and each provision of this Guarantee shall be valid and enforceable to the fullest extent permitted by law.
14. Within fifteen (15) days after written request from Landlord, the undersigned shall deliver to Landlord-or
its designee, an estoppel certificate in form satisfactory to Landlord and the undersigned executed by the undersigned
confirming that this Agreement remains in full force and effect in accordance with its terms and ratifying the
undersigned's obligations hereunder
15. All notices, demands, requests, consents, approvals or other communications (collectively, "Notices")
desired or required to be given under this Guarantee shall be in writing, and, any law or statute to the contrary
notwithstanding, shall be effective for any purpose if sent by recognized overnight courier, prepaid, addressed as
follows:
If to Guarantor, to it at:
Henry H. Davenport
5220 Simpson Ferry Road
Mechanicsburg, PA 17050
If to Landlord, to it at:
PREIT SERVICES, LLC
The Bellevue, Third Floor
200 South Broad Street
Philadelphia, PA 19102
Attention: General Counsel
16. Notwithstanding the foregoing the liability of the undersigned for Liabilities shall be limited to those
accruing during any twelve (12) month period during the Term of the tease and attorneys fees and costs of collection.
All Notices shall be deemed,given or served on the data on which such Notice has been received. Any party to this
Guarantee may change the-address to which Notices shall be delivered to it and its representatives by notice in
accordance with this Section 15.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be executed as of the day and year first
above written:
DavenporWtaftn0ven-CapitalC*Fina1
June 17, 2008 1 TratdtimanlGO 41
Witnesses:
_r?,Iwzp-
DavenportsUaQanOven-CapltWCity_Final
June 17, 2008 1 ThachtrnanM
GUARANTOR:
HENRY H. DAVENPORT
Social Security #: 334-34-2809
33 -3 ..L?m
42
EXHIBIT E: TENANT'S MENU
DavenpurtsitallanOven-CapitarAty_FinaI
June 17, 2008 1 TrachtmarVGO 43
FIRST AMENDMENT OF LEASE
RENT RESTRUCTURE AND EXTENSION
THIS FIRST AMENDMENT OF LEASE (the "First Amendment"), made
this 2-0 day of AUCrUST , 2009, by and between PR CAPITAL CITY LIMITED
PARTNERSHIP ("Landlord") and DAVENPORT'S ITALIAN OVEN, INC., t/a Davenport's
Italian Oven, Inc. ('Tenant").
WITNESSETH:
WHEREAS, by a lease dated July 2, 2008 (the "Lease"), Landlord leased to
Tenant all those certain premises owned by Landlord situated in the Capital City Mail,
located in Camp Hill, PA known and designated as Unit No. 0800 (the "Premises"), for a
term of years upon certain terms and conditions as more fully set forth in the Lease; and
WHEREAS, the Lease is scheduled to expire on January 31, 2019 (the
"Original Expiration Date"); and
WHEREAS, Tenant acknowledges that Tenant has failed to pay certain sums
due and owing to Landlord of approximately Thirty-Four Thousand Five Hundred Sixty and
00/100 Dollars ($34,560.00) (such amount hereinafter the "Arrearages");
WHEREAS, Landlord and Tenant desire to modify the provisions of the
Lease upon the terms and conditions hereinafter set forth,without limitation, the repayment
of the Arrearages by Tenant to Landlord in accordance with the terms more specifically set
forth in this First Amendment.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto, intending to be legally bound hereby, covenant and agree as
follows:
1. Capitalized terms used herein but not defined herein shall have the
meanings ascribed to such terms in the Lease unless otherwise modified in this First
Amendment.
2. SETTLEMENT PAYMENT. In addition to Rent and all other payments
required to be paid to Landlord by Tenant pursuant to the Lease, Tenant shall pay the
DavenportsitalianOven-CapCity-Amd-R2.DOC
July30, 2009 \ dmb
Arrearages to Landlord as follows (hereinafter the "Settlement Payment"):
(1) Commencing as of July 1, 2010 and continuing June 30, 2013,
Tenant shall pay, on the first (1°t) day of each calendar month, an amount equal to Nine
Hundred Sixty and 00/100 Dollars ($960.00) per month.
Tenant's failure to make any Settlement Payment as provided in the
preceding paragraph shall be deemed an Event of Default under the Lease, without the
necessity of notice, and the entire Arrearages shall thereafter become immediately due
and payable with interest at the Default Rate and Landlord shall have all rights and
remedies granted to Landlord pursuant to the Lease at law and in equity.
3. Effective retroactively as of January 1, 2009 and continuing through
December 31, 2009 (hereinafter "First Amendment Rent Reduction Period"), Tenant
shall pay Landlord, in lieu of Minimum Rent and all Additional Rent and charges (excluding
utilities and trash charges), gross annual Minimum Rent in an amount equal to Forty-Nine
Thousand Five Hundred and 00/100 Dollars ($49,500.00), payable in equal monthly
Installment payments of Four Thousand One Hundred Twenty-Five and 00/100 Dollars
($4,125.00).
4. Additionally, Tenant shall continue to pay Percentage Rent in
accordance with the terms, covenants and conditions of the Lease; however, during the
First Amendment Rent Reduction Period, Tenant's Percentage Rent Break Point shall be
One Million Two Hundred Thirty-Seven Thousand Five Hundred and 00/100 Dollars
($1,237,500.00).
5. Thereafter, effective January 1, 2010 and continuing through the end
of the Term, Tenant shall Minimum Rent, Percentage Rent and all Additional Rent and
charges as provided in the Lease prior to the modification of the Lease In accordance with
this First Amendment, however Tenant's Percentage Rent Break Point shall be One Million
Five Hundred Thousand and 00/100 Dollars ($1,500,000.00).
6 In the event at any time during the First Amendment Rent Reduction
Period either (i) there is an assignment, pledge or hypothecation of the Lease, or sublease
of the Premises, or other Transfer (as such term is defined in Section 15 of the Lease) of
all or any part of Tenant's Interest in the Lease or in the Premises (including, without
DavenportalralanOven-CopCity-Amd-R2.DOC
July30, 2009 1 dmb 2
limitation, any change in control of Tenant or, if applicable, Guarantor, with or without
Landlord's consent), or (ii) an Event of Default occurs, the First Rent Reduction Period
shall end on the date immediately preceding the effective date of such assignment, pledge,
hypothecation, sublease, Transfer or the date of such default, whichever is applicable, and
Tenant shall thereafter again be liable to pay to Landlord Rent, in the amounts set forth in
the Lease prior to the modification of the Lease in accordance with this First Amendment.
7. Landlord Is hereby granted the right to terminate the Lease by
providing at least one hundred twenty (120) days' prior written notice to Tenant of its
intention to do so ("Landlord's Notice"). In the event Landlord exercises its right to
terminate, the Term of the Lease shall terminate on the date set forth in Landlord's Notice
("Early Termination Date"), as if said date was the natural expiration date of the Term of
the Lease. If Landlord exercises its termination right, the termination of the Lease pursuant
to this First Amendment shall in no event release Tenant from any of its obligations
applicable to the period prior to and including the Early Termination Date. Tenant shall
fulfill all covenants and shall remain liable for all obligations under the Lease applicable to
the period prior to and including the Early Termination Date. Tenant shall also remain
liable for all year-end adjustments with respect to Tax Rent, and the CAM Charge, if any,
for that portion of the Year ending on the Early Termination Date, to the extent that such
year-end adjustment(s) were not previously billed to, and/or paid by Tenant. Tenant shall
pay all such adjustments within thirty (30) days after receipt of written demand thereof. In
the event the Early Termination Date is a date other than the last day of any relevant time
period set forth in the Lease, any amounts due and payable with respect to such time
periods shall be appropriately prorated and such amounts shall be due and payable within
thirty (30) days after the Early Termination Date.
8. The Term of the Lease is hereby extended for four (4) years,
commencing February 1, 2019 and continuing through January 31, 2023 (the "Extension
Period").
9. During the Extension Period, Tenant shall pay annual Minimum Rent in
an amount equal to One Hundred Forty-Two Thousand Five Hundred and 00/100 Dollars
DavenportsltalanOven-CapCity-Amd4R2.DOC
July 311, 2009 1 dmb 3
($142,500.00), payable in equal monthly installment payments of Eleven Thousand Eight
Hundred Seventy-Five and 00/100 Dollars ($11,875.00).
10. Additionally, Tenant shall continue to pay Percentage Rent in
accordance with the terms, covenants and conditions of the Lease; however, during the
Extension Period, Tenant's Percentage Rent Break Point shall be One Million Five
Hundred Thousand and 00/100 Dollars ($1,500,000.00) and Tenant shall continue to be
Hable for the payment of all Additional Rent and charges, calculated from time-to-time, in
accordance with the terms, covenants and conditions of the Lease.
11. The term of the Lease shall expire absolutely on January 31, 2023
without the necessity. for any notice whatsoever. On or before January 31, 2023, Tenant
shall vacate and surrender possession of the Premises to Landlord in accordance with the
provisions of the Lease. There shall be no holding over of the Premises by Tenant after
January 31, 2023, unless Landlord and Tenant execute an agreement which provides for
Tenant's occupancy after January 31, 2023.
12. It is agreed and understood that Tenant may acknowledge only the
existence of an agreement between Landlord and Tenant pertaining to the Lease, and that
Tenant may not disclose any of the terms and provisions contained in this First
Amendment to any tenant or other occupant in the Shopping Center or to any agent,
employee, subtenant or assignee of such tenant or occupant except as may be required by
law. Tenant acknowledges that any breach by Tenant of this paragraph shall cause
Landlord irreparable harm. The terms and provisions of this paragraph shall survive the
termination of the Lease (whether by lapse of time or otherwise).
13. Except as herein provided to the contrary, all of the terms, covenants,
conditions and stipulations contained in the Lease, including the confession of judgment
contained therein and all other terms whether or not deemed personal covenants shall be
continued with like effect and to all legal intents and purposes as if included in a new lease
containing identical terms, covenants, conditions and stipulations as in the Lease except as
herein modified, until the time of expiration of the term, and the same is hereby ratified and
confirmed.
Davenpo tskedanOven-CapCky-Amd-R2.Doc
July 30, 2009 1 dmb 4
14. This First Amendment shall be binding upon and Inure to the benefit of
the parties hereto and their respective heirs, successors, administrators, successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed on the day and year first above written.
LANDLORD:
PREIT SERVICES, LLC,
Agentfor PR CAPITAL CITY LIMITED PARTNERSHIP
r
_ _ BY•
JEFFREY A. LINN
Executive Vice President
TENANT:
DAVENPORT'S ITALIAN OVEN, INC.
By:
Name• P.Mt!A/y
Title:
Attest.
%1--
Name: ?W21d 4c zej
Tltle:?..?e11?Clrf4 ? !"'!A?'L?P¢(/?
DavenpwtsftlanOven-CapCity-Amd-R2.DOC
July 30, 2009 % dmb 5
MARCUS & SHAPIRA LLP
ONE OXFORD CENTRE, 35" Mom
301 GRANT MEET
PnTSBMGH, PENNSYLVANIA 15219.6401
(412) 471-3490
Darkoe M. Nowak
aowak@macawslePira.oom
Direct Dial: (412) 338.5214
By Certified and Regular Mail to:
Kell Davenport
5220 Simpson Ferry Road
Mechanicsburg PA 17050
Henry H. Davenport
5220 Simpson Ferry Road
Mechanicsburg PA 17050
Bax:(412) 391-8758
June 21, 2010
By Hand Delivery to:
Davenport's Italian Oven
3506 Capital City Mall Drive
Camp Hill PA 17011
Re: Lease dated July 2, 2008 between PR Capital City Limited Partnership
(`Landlord ")and Davenport's Italian Oven ("Tenant ")
Dear Tenant:
This Notice is being sent to you pursuant to Section 16.01 (a) and (g) of the above Lease
dated July 2, 2008. Mr. Terry Kennedy and Mr. Mario Ventresca have referred this matter to us
for collection.
We represent PR Services LLC, the Managing Agent for PR Capital City Limited
Partnership, Landlord. As of June 18, 2010, Tenant is in default for failure to pay sums due
under the Lease in an amount not less than $118,347.70 (due to Tenant's failure to comply with
the First Amendment of Lease and Restructuring Agreement of August 26, 2009, this amount is
subject to further adjustment).
Unless the amount of $118,347.70 is received at the rent payment address ( PR Capital
City Associates LP, P.O. Box 92406, Cleveland OH 44193, or at the Capital City Mall Office)
within ten (10) days from your receipt of this letter, we will proceed to take legal action to
collect all amounts owing now and through the full term of the Lease, and all amounts due under
the Guaranty of Henry H. Davenport, which is Exhibit D to the Lease.
Very truly yours,
ear lene . Nowak
Encl.
CC: C. Uy
T. McGrath
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Capital City Mall
Davenport's Italian Oven
UNSWORN VERIFICATION UNDER 18 PA. C.S. 4 4904
The undersigned hereby states subject to the penalties of 18 Pa. C.S. § 4904 regarding
unsworn falsification to authorities as follows: I am a duly authorized representative of the
Plaintiff identified in the attached Complaint in Confession of Judgment and that averments of
fact contained in such Complaint are true and correct to the best of my knowledge, information
and belief.
Dated: AuQ,UsI 19 , 2010
B d6a-,4
Debra Lambert
Senior Vice President - Legal
PREIT SERVICES, LLC
Agent for PR CAPITAL CITY LIMITED
PARTNERSHIP
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
Plaintiff,
V.
DAVENPORT'S ITALIAN OVEN, INC.,
Defendant.
CERTIFICATION OF ADDRESSES
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Darlene M. Nowak, Esq., attorney for Plaintiff PR Capital City Limited Partnership,
certifies that the present address of Plaintiff is 200 South Broad Street, The Bellevue, Third
Floor, Philadelphia, Pennsylvania 19102; and that the last known address for Defendant
Davenport's Italian Oven is 5220 Simpson Ferry Road, Mechanicsburg, Pennsylvania, 17050.
Date: August, 2010
birlene M. owak
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
CIVIL DIVISION
No. I o - -%st (1v i 1-rers1
Counsel for Plaintiff, PR Capital City
Limited Partnership
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
CIVIL DIVISION
No. l0 - -=kB I 0,-16 1 Terw
Plaintiff,
V.
DAVENPORT'S ITALIAN OVEN, INC.,
Defendant.
NOTICE OF ENTRY OF CONFESSED JUDGMENT
FOR MONEY
TO: Davenport's Italian Oven, Inc.
Please take notice that a judgment for money in the amount of $164,774.07 has been
entered against you by confession on the date below in favor of the Plaintiff.
Date: Q o2 10 ? D zi
onotary, Court of mmon
Pleas of Cumberland County
. a
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
CIVIL DIVISION
No. Ip - C?l q i 1 -rex- t
Plaintiff,
V.
COMPLAINT IN CONFESSION OF
JUDGMENT FOR MONEY
DAVENPORT'S ITALIAN OVEN, INC.,
Defendant.
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
Pa. I.D. No. 43523
Darlene M. Nowak
PA ID No. 37093
MARCUS & SHAPIRA LLP
Firm No. 145
One Oxford Centre, 35`h Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
CIVIL DIVISION
No. 2010-05681
V.
DAVENPORT'S ITALIAN OVEN, INC.,
Defendant.
PRAECIPE FOR WRIT OF EXECUTION
To the Prothonotary:
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Kindly issue a Writ of Execution upon a judgment entered by Confession in the above
matter.
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(1) directed to the Sheriff of Cumberland County, Pennsylvania;
(2) against Davenport's Italian Oven, Inc., Defendant, whose last known
address is 5220 Simpson Ferry Road, Mechanicsburg, Pennsylvania,
17050;
(3) against Metro Bank, Garnishee, with an address of 65 Ashland Avenue,
Carlisle, Pennsylvania, 17013 (or the closest Metro Bank);
(4) and index this writ against Davenport's Italian Oven, Inc., Defendant, as a
lis pendens against the real property of the Defendant.
(5) Amount due through 8/1/10 $156,927.69
Attorneys' fees for enforcement and collection (5%) $ 7.846.38
provided under §16.02 of the Lease
TOTAL $164,774.07
ck-? a7?s?
?L- -2-s2,117
CERTIFICATION
I certify that:
a) This praecipe is based upon a judgment entered by confession, and
b) Notice has been served pursuant to Rule No. 2958.1 at least thirty (30) days prior
to the filing of this praecipe as evidenced by an Affidavit of Service filed of
record.
Date: December 1__, 2010
Sfe?hen Sr ubrow (Pa. I.D. No. 43523)
Darlene M. Nowak (PA ID No. 37093)
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
PRAECIPE FOR ATTACHMENT EXECUTION
Issue writ of attachment to the Sheriff of Cumberland County, for debt, interest and costs,
as above, directing attachment against the above-named garnishees for the following property (if
real estate, supply six copies of the description; supply four copies of lengthy personalty list)
Any and all of defendants' bank accounts in the possession of Metro Bank garnishee and all
other property of the defendant(s) in the possession, custody or control of the said garnishee(s).
Date: December 1 2010
tep S. Zubrow (PA I.D. No. 43523)
Darlene M. Nowak (PA ID No. 37093)
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 10-5681 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff (s)
From DAVENPORT'S ITALIAN OVEN, INC., 5220 SIMPSON FERRY ROAD,
MECHANICSBURG, PA 17050
(1) You are directed to levy upon the property of the defendant (s)and to sell .
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of METRO BANK, GARNISHEE, 65 ASHLAND AVENUE, CARLISLE, PA 17013
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof,
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $164,774.07
Interest
Atty's Comm %
Atty Paid $54.50
Plaintiff Paid
Date: DECEMBER 7, 2010
L.L. $.50
Due Prothy $2.00
Other Costs
Davi 11, Prothon tary
(Seal)
REQUESTINT G PARTY:
game DARLENE, M. NOWAK, ESQ.
Address: MARCUS & SHAPIRA LLP
ONE OXFORD CENTRE, 35TH FLOOR
By:
Deputy
301 GRANT STREET
PITTSBURGH, PA 15219
Attorney for: PLAINTIFF
Telephone: 412-471-3490
Supreme Court ID No. 37093
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff 'p? t?tLt??r??-OFFIC?°??t
«, of ?u?titrrr/rrr¢ 'Y TIME fi ROTHI Io?4 'Er
Jody S Smith
Chief Deputy 2010 DEC 17 Ph 3: 40
Richard W Stewart Solicitor UMBERLAH
PENNSYLV 1A
PR Capital City Limited Partnership Case Number
vs. 2010-5681
Davenport's Italian Oven, Inc.
SHERIFF'S RETURN OF SERVICE
12/15/2010 10:40 AM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on December
15, 2010 at 1020 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and
monies of the within named defendant, to wit: Davenport's Italian Oven, Inc., in the hands, possession, or
control of the within named garnishee, Metro Bank, 65 Ashland Avenue, Carlisle, Cumberland County,
Pennsylvania 17013, by handing to Jackie George, Customer Service Representative personally three
copies of interrogatories together with three true and attested copies of the writ of execution and made the
contents there of known to him/her.
The writ of execution and notice to defendant was mailed on December 16, 2010 to Davenport's Italian
Oven, Inc., at 5220 Simpson Ferry Road, Mechanicsburg, PA 17050.
SO ANSWERS,,
December 16, 2010 R.ON R ANDERSON, SHERIFF
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MV IM ine, Deputy
ic; ?oi.iaiiSuit?r Shenfl 7ai?-„?aoif. Irc.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
DAVENPORT'S ITALIAN OVEN, INC.,
Defendant.
V.
METRO BANK,
Garnishee
CIVIL DIVISION
No. 2010-05681 c-1
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PRAECIPE TO DISSOLVE WRIT OF EXECUTION AGAINST
METRO BANK
To the Prothonotary:
Kindly mark the Writ of Execution issued against Metro Bank, Garnishee in the above
action, dissolved.
Date: December 15, 2010
4?
hen S. Zu row (Pa. I.D. No. 43523)
Darlene M. Nowak (PA ID No. 37093)
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
t;4 Lb In> pill
OW 06-
10
CERTIFICATE OF SERVICE
A copy of the foregoing Praecipe to Dissolve Writ of Execution has been served by
regular first class mail on counsel for Defendant on the 16`h day of December, 2010 at the
following address:
Bruce J. Warshawsky, Esq.
Cunningham & Chernicoff, P.C.
2320 N. Second St.
Harrisburg, PA 17110
Also served by electronic mail on December 15, 2010.
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
FILED-Or EIC`
Ronny RAnderson
Sheriff # Pf?OTEiONOTAF;`s' Jody S Smith
??yyticr ctit??brrr?f4 20 1 SEf"p _ 2 f p1y
! 2- 3
Chief Deputy
Richard W Stewart rUMBERLAND COUNT';'
Solicitor OFFICE PENNSYLVANIA
PR Capital City Limited Partnership
vs.
Davenport's Italian Oven, Inc.
SHERIFF'S RETURN OF SERVICE
Case Number
2010-5681
12/15/2010 10:40 AM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on December
15, 2010 at 1020 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and
monies of the within named defendant, to wit: Davenport's Italian Oven, Inc., in the hands, possession, or
control of the within named garnishee, Metro Bank, 65 Ashland Avenue, Carlisle, Cumberland County,
Pennsylvania 17013, by handing to Jackie George, Customer Service Representative personally three
copies of interrogatories together with three true and attested copies of the writ of execution and made the
contents there of known to him/her.
The writ of execution and notice to defendant was mailed on December 16, 2010 to Davenport's Italian
Oven, Inc., at 5220 Simpson Ferry Road, Mechanicsburg, PA 17050.
09/01/2011 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states this writ of execution is
returned as ABANDONED. No action on writ in over 6 months.
SHERIFF COST: $87.00 SO ANSWERS,
September 01, 2011 RON R ANDERSON, SHERIFF
is Goun',Sute Shenff Teieos-?tt In;_
4740
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