HomeMy WebLinkAbout05-2395
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
MASSIMO TRATTORIA, INC.,
a Pennsylvania Corporation and
MASSIMO NAPOLI, individually
Plaintiffs
No. 05 - ;2.3'1-5
C~u,L~V-1
vs.
WILLIAM F. ROTHMAN, CHARLES
F. SCHUBERT and SAMUEL L.
REED, co-partners tJd/b/a ROTHMAN,
SCHUBERT & REED, a Pennsylvania
General Partnership
Defendants
JURY TRIAL DEMANDED
NOTICE
You have been sued in court. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this complaint
and notice are served, by entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections to the claims set forth against
you. You are warned that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the court without further notice for any money
claimed in the complaint or for any other claim or relief requested by the plaintiff. You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE PA 17013
800-990-9108
AMERICANS WITH DISABILITIES ACT OF 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with
Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to
disabled individuals having business before the Court, please contact our office. All arrangements must be made at
least 72 hours prior to any hearing or business before the Court. You must attend the scheduled conference or
hearing.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
MASSIMO TRATTORIA, INC.,
a Pennsylvania Corporation and
MASSIMO NAPOLI, individually
Plaintiffs
vs.
No. DS' -;).39--S C/u~l~~
WILLIAM F. ROTHMAN, CHARLES
F. SCHUBERT and SAMUEL L.
REED, co-partners tJd/b/a ROTHMAN,
SCHUBERT & REED, a Pennsylvania
General Partnership
Defendants
JURY TRIAL DEMANDED
COMPLAINT
Plaintiffs Massimo Trattoria, Inc., a Pennsylvania Corporation and Massimo
Napoli, individually, by and through their attorneys, Goodall & Yurchak, P.C., files the
following Complaint:
1. Massimo Napoli is an individual with an address of 2248 Saw Palmetto
Lane, Building 7, Apt. 117, Orlando, FL 32825.
2. Massimo Trattoria, Inc. is a Pennsylvania corporation with a mailing
address of 2248 Saw Palmetto Lane, Building 7, Apt. 117, Orlando, FL 32825.
3. Upon information and belief, Rothman, Schubert and Reed (hereinafter
referred to as "RSR") is a Pennsylvania General Partnership, with a business address
of 3 Lemoyne Drive, Suite 100, Lemoyne, PA 17043.
4. Defendant William F. Rothman, an individual, with an address of 3
Lemoyne Drive, Suite 100, Lemoyne, PA 17043.
5. Defendant Charles F. Schubert, an individual with an address of 3
Lemoyne Drive, Suite 100, Lemoyne, PA 17043.
6. Defendant Samuel L. Reed, an individual with an address of 3 Lemoyne
Drive, Suite 100, Lemoyne, PA 17043.
7. On or about November 8, 2004, RSR entered into a Lease Agreement
(the "Lease") with Massimo Trattoria for the lease of approximately 2,460 square feet of
gross leasable area identified as Block H, Unit 7 and 8 with an address of 385 East
Penn Drive, Enola, Pa 17025 (the "Leased Premises"). A copy of the Lease Agreement
is attached as Exhibit ''1''.
8. The Leased Premises is located in Pennsboro Commons Shopping
Center, Cumberland County, PA.
9. The Lease term was for five (5) years.
10. At the time of entry into the Lease, RSR was aware and had been advised
that the purpose of Massimo Trattoria's leasing of the Leased Premises was for an eat-
in Italian restaurant serving lunch and dinner with a high-end atmosphere.
11. At the time the Lease was signed, RSR knew or should have known that
the current heating and cooling units in location on the Leased Premises were not
sufficient to allow operation, under the applicable building code requirements, of a dine-
in restaurant serving lunch and dinner with a high-end atmosphere.
12. RSR failed to advise Plaintiffs that the current heating and cooling units
were not sufficient.
13. Immediately after the Lease was executed, Massimo Trattoria began
completing the buildout of the Leased Premises including floor covering, additional
plumbing and additional hot water heater as contemplated to serve the Leased
Premises.
14. This buildout, floor covering and additional plumbing was done at
Massimo Trattoria's expense in an amount exceeding $90,000.00.
15. Additionally, Massimo Trattoria and Massimo Napoli individually incurred
other expenses in the preparation for the opening of a restaurant including advertising
services, utility service and other purchase of equipment totaling approximately
$35,000.00.
16. Plaintiffs incurred additional damages in time and expenses in preparation
for the opening of the contemplated restaurant.
17. After signing of the Lease, construction proceeded at the Leased
Premises with Massimo Napoli and Massimo Trattoria expending money in preparation
for opening of the facility.
18. Construction done at the Leased Premises was subject to permitting and
inspection by East Pennsboro Township.
19. In December 2004, the East Pennsboro Township Building Inspector-
Codes Enforcement Officer notified Plaintiffs that it could not provide an occupancy
permit and/or was issuing a stop work order because, among other things, the HVAC
equipment was not acceptable to handle the air requirements for the assembly
occupancy load.
20. Defendants were aware or should have been aware that the HVAC
equipment could not handle the air requirements for the use of a restaurant as
contemplated.
21. In short, RSR leased the Leased Premises to Massimo Trattoria, which
premises could not support its intended use.
22. The Plaintiffs relied on the representations made by RSR regarding its
intended use and that the premises would be suitable for a restaurant for a restaurant
facility.
23. Except for the HVAC and air supply issue, Massimo Napoli was in the
position to complete construction to open his restaurant on or about January 9, 2005.
24. Because Plaintiffs were not able to open its restaurant due to the air
supply restrictions, the Plaintiffs have not been earning income to pay back his bank
loan and Lease payments.
25. The inability of Plaintiffs to open their restaurant because of the current
state of the HVAC equipment forced Plaintiffs into a position where they were unable to
open up the restaurant and earn an income.
I. Breach of Contract
26. The preceding paragraphs 1 through 25 are incorporated herein by
reference as if set forth at length.
27. By failing to provide a Leased Premises which was sufficient for its
permitted use, Defendants breached the November 8, 2004 Lease Agreement.
28. As such, the Defendants are responsible for damages for breach of
Lease, including all expenses related to the build out and accompanying costs,
interests, lost profits and attorneys fees.
WHEREFORE, Plaintiffs demand judgment against Defendants for
compensatory damages in an amount in excess of $35,000.00 plus costs.
II. Recession
29. The preceding paragraphs 1 through 28 are incorporated herein by
reference as if set forth at length.
30. The determining motive for the Lease was to secure a Leased Premises
for an Italian restaurant.
31. The state of the HV AC was essential for the operation and opening of the
business.
32. This determining motive was known to the Defendants at the time of
signing of the Lease. At the time of signing of the Lease, Defendants knew or should
have known that the HVAC system was not sufficient to support the determining motive
for the Leased Premises.
33. The Plaintiffs did not and should not have known about the state of the
HVAC system.
34. As a result, Plaintiffs seek recision for unilateral mistake relating to the
Leased Premises with attendant damages relating to costs of renovation, and any other
charges incurred as a result of entering into this Lease.
WHEREFORE, Plaintiff demands judgment against Defendants for
compensatory damages in an amount in excess of $35,000.00 plus costs.
III. Fraud/MisreDresentation
35. The preceding paragraphs 1 through 34 are incorporated herein by
reference as if set forth at length.
36. The Defendants failed to disclose to the Plaintiffs material facts known to
them concerning the Leased Premises, specifically relating to the HVAC system.
37. Defendants through the oral and written statements in the Lease,
represented that the facility was sufficient for its intended use.
38. Defendants had a duty to disclose to the Plaintiffs all material information
relating to the state of the premises.
39. The Plaintiff justifiably relied upon the representations made by the
Defendants.
40. Had the Plaintiffs known all the material facts relating to the state of the
Leased Premises, they would not have proceeded with entry into the Lease. As a result
of the Defendants' actions, the Plaintiffs were ultimately forced to expend money for the
buildout and construction of the premises.
41 . Plaintiffs seek recision of the Lease on the basis of fraud and/or
misrepresentation, with restitution and for compensatory damages.
WHEREFORE, Plaintiffs demand judgment against Defendants for
compensatory damages in an amount in excess of $35,000.00 and costs.
Respectfully submitted,
GOOD L & YURCHAK .C.
Kathleen V. Yurch ,Esq.
PA. 1.0. 55948
328 South Athert
State College, P
(814) 237-4100
Date: April 27, 2005
VERIFICATION
Massimo Napoli individually and as Massimo Trattoria, avers that the factual
averments contained in the foregoing Complaint are true and correct to the best of his
knowledge, information and belief, and the statements in said Complaint are made
subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsifications to
authorities.
J
dlb\rsr\MassimoNapoli.lse
November 4, 2004
LEASE LETTER
Pennsboro Commons Shopping Center
Rothman, Schubert & Reed
3 Lemoyne Drive, Suite 100
Lemoyne, PA 17043
Lease dated (1) C; \ ;~ , 2004 between William F. Rothman, Charles F. Schubert &
Samuel L. Reed, Co-Partners, tfd/b/a Rothman, Schubert & Reed, a Pennsylvania General
Partnership, Owner, and Massimo Napoli, Inc., a Pennsylvania corporation, Tenant, covering
Premises located in Pennsboro Commons Shopping Center, East Pennsboro Township,
Cumberland County, Pennsylvania.
RE:
The undersigned, as Tenant, hereby confirms the following:
1. Tenant has accepted possession of the Premises demised pursuant to the terms of the above-
described Lease.
2. The improvements and space required to be furnished according to the aforesaid Lease have been
completed and supplied in all respects.
3. Landlord-Owner has fulfilled all of its duties of an inducement nature.
4. The aforesaid Lease has not been modified, altered or amended except as set forth below.
5. There are no offsets or credits due against rentals nor have rentals been prepaid except as
provided by the Lease terms.
6. The initial term of said Lease began on the ---I day of jleV ,2004, and rentals
commenced to accrue on that date; the initial Lease Term expires on () I.fV-1 ;:) OQ i
7. or of the Lease.
By:
MaSliimo
/
Exhibi t 1
LEASE AGREEMENT
PENNSBORO COMMONS SHOPPING CENTER
2
LEASE AGREEMENT
WITNESSETH, that in consideration of mutual covenants, Owner and Tenant hereby agree as
follows:
SECTION A. BASIC LEASE PROVISIONS AND ENUMERATION OF EXHIBITS
Section A-I. Basic Lease Provisions.
DATE:
,2004
SHOPPING
CENTER:
Pennsboro Commons Shopping Center
Cumberland County, Pennsylvania
OWNER:
William F. Rothman, Charles F. Schubert & Samuel L. Reed, Co-Partners,
t/d/b/a Rothman, Schubert & Reed, a Pennsylvania General Partnership with an
address of 3 Lemoyne Drive, Suite JOO, Lemoyne, PA 17043.
-ir'-flJfoR\11
Massimo ~~ a Pennsylvania corporation
384 East Penn Drive, Enola, P A 17025
TENANT:
TENANT'S ADDRESS:
TENANT'S PHONE NUMBER: 407-491-7686
TENANT'S
TRADE NAME:
~ MASSIH01hmfO(1JA
~
LEASED
PREMISES:
The Premises outlined in red on Exhibit A containing approximately 2,460
square feet of Gross Leasable Area and identified as Block H, Units 7 and 8
with an address of 384 East Penn Drive, Enola, PA 17025.
LEASED TERM:
Five (5) Years.
RENEWAL TERM:
Two (2), Five (5) Year options.
3
PERIOD FOR
COMPLETION OF
TENANT'S WORK:
PERMITTED
USES:
ANNUAL
MINIMUM RENT:
PERCENTAGE
RATE:
BREAKPOINT:
INITIAL ESTIMATED
COMMON FACILITIES
CONTRIBUTION FOR
TENANT:
INITIAL ESTIMATED
TAX CHARGE FOR
TENANT:
Tenant's work shall be completed on or before 30 days after Owner substantially
completes Owner's Work set forth in Exhibit B and makes the Leased Premises
available to Tenant. The term "substantially completes" as used in this
paragraph shall mean that Owner has completed Owner's Work with the
exception of minor items which can be fully completed prior to completion of
Tenant's Work without material interference with Tenant's Work or upon receipt
of a certificate of occupancy from East Pennsboro Township, whichever occurs
sooner.
Eat-inJDine-in Italian Trattoria restaurant serving lunch and dinner with a high
end atmosphere, white table cloths, BYOB, and serving such menu items as are
set forth on the attached Exhibit E, and not otherwise in violation of any
currently granted or existing exclusives granted to other Tenants.
Tenant shall pay to Owner, as Annual Minimum Rent, on the first day of every
month, in advance, and at a rate of $16.00 per square foot, the sum of $39,360
annually ($3,280/month) for the five (5) year Lease Term.
The Annual Minimum Rent for the renewal term(s), if any, shall be:
First Option: $17.00 per square foot, $41,820 annually ($3,485/month)
Second Option: $18.00 per square foot, $44,280 annually ($3,690/month)
N/A%
$N/A
$3,690.00 per calendar year ($307.50 per month) (subject to adjustment as set
forth in Article vn of this Lease)
$2,460.00 per tax year ($205.00 per month) (subject to adjustment as set forth in
Article VI of this Lease)
4
INITIAL ESTIMATED
INSURANCE CHARGE
FOR TENANT:
$615.00 per calendar year ($51.25 per month) (subject to adjustment as set forth
in Article X of this Lease)
SECURITY DEPOSIT:
Upon execution of this Lease, Tenant shall deposit the sum of $3,280.00 with
Owner to secure the performance of the obligations of Tenant herein contained.
Section A-2. Effect of Reference to a Basic Lease Provision.
Each reference in this Lease to any of the Basic Lease Provisions contained in Section A-I shall
be deemed to incorporate all of the terms provided under each such Basic Lease Provision.
Section A-3. Enumeration of Exhibits.
The Exhibits enumerated in this Section and attached to this Lease are hereby incorporated in
this Lease by reference and each party agrees to perform all obligations binding upon it under such
Exhibits.
Exhibit A
Exhibit A-I
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Site Plan
Legal Description of Owner's Tract
Owner's Work
Rules and Regulations
Guaranty of Lease
Sample Menu
RECITALS
Owner owns fee title to certain real property described on Exhibit A-I. The real property
described on Exhibit A-I (as the same may be expanded or reduced as contemplated in this Lease) is
herein called "Owner's Tract." The term "Shopping Center" shall mean Owner's Tract, together with the
buildings and other improvements thereon from time to time.
ARTICLE I - GRANT AND TERM
Section 1.01. Leased Premises and Common Areas.
Owner leases to Tenant and Tenant rents from Owner those premises located in the Shopping
Center and described as the "Leased Premises" in Section A-I of the Basic Lease Provisions, together
with the appurtenances specifically herein granted. The use by Tenant of the Leased Premises shall
include the non-exclusive use of the "Common Facilities" (as defined in Section 7.02) shown on Exhibit
A, and such other Common Facilities as may be designated from time to time by Owner, subject,
however, to the provisions of Section 4.02 and 7.04 and to the other terms and conditions of this Lease.
5
Section 1.02. Term.
The term of this Lease and Tenant's obligation to pay rent shall, subject to the provisions of
Section 23.02, commence upon the earlier of the following dates (the "Commencement Date"): (i) the
date on which Tenant shall open the Leased Premises for business with the public, or (ii) the date of
expiration of the "Period For Completion of Tenant's Work" designated in Section A-I of the Basic Lease
Provisions, but no later than that date which is sixty-days (60) days after the date the Lease is signed by
both parties. The term of this Lease shall expire, unless sooner tenninated as in this Lease provided, on
the last day of the last "Leased Year" (as defined in Section 23.04) provided under "Lease Term" in
Section A-I of the Basic Lease Provisions. In order to extend the Leased Term as provided under
"Renewal Term" in Section A-I of the Basic Lease Provisions, Tenant shall give Owner ninety (90) days
written notice of its intention to renew the Leased Term prior to the end of the then current term at the
amount designated for the renewal terms provided under Annual Minimum Rent in Section A-I of the
Basic Lease Provision.
Section 1.03. Obligations Prior to Commencement of Term.
Tenant shall perform all of its obligations under this Lease (except its obligations to pay rent and
other charges) from the date upon which the Leased Premises are first made available to Tenant until the
Commencement Date.
Section 1.04. Owner's Financing Contingencv. INTENTIONALLY OMITTED
ARTICLE II. RENT
Section 2.0 I. Annual Minimum Rent.
Tenant shall pay to Owner, without any prior demand, deduction or setoff, the "Annual
Minimum Rent" specified in Section A-I of the Basic Lease Provisions, in equal monthly installments on
or before the first day of each calendar month in advance. Annual Minimum Rent for a fractional
calendar month shall be prorated.
Section 2.02. Percentage Rent. INTENTIONALLY OMITTED
Section 2.03. Gross Receipts Defined.
The term "Gross Receipts" is defined to mean: (i) the entire amount of the price charged, whether
wholly or partially in cash or on credit, or otherwise, for all goods, wares, merchandise and chattels of
any kind, sold, leased, licensed or delivered, and all charges for services sold or performed in, at, upon
or from any part of or through the use of the Leased Premises or any part thereof by Tenant and any other
person, firm or corporation, or by means of any mechanical or other vending device (other than pay
telephones and those soft drink and other similar vending devices operated primarily for the convenience
of Tenant's employees); and (ii) all gross income of Tenant and any other person, firm or corporation
from any operations in, at, upon or from the Leased Premises which are neither included in nor excluded
from Gross Receipts by other provisions of this Lease. but without any duplication. Gross Receipts shall
not include the amount of any sales tax, use tax or retail excise tax which is imposed by any duly
constituted governmental authority directly on sales and which is both added to the selling price (or
absorbed therein) and is paid to the taxing authority by Tenant (but not any vendor of Tenant). No
franchise or capital stock tax, and no income or similar tax based upon income or profits as such, and no
personal property tax, shall be deducted from Gross Receipts.
6
Section 2.04. Additional Rent.
Tenant shall pay, upon demand as additional rent, all charges required to be paid by Tenant
under this Lease, whether or not the same are designated "additional rent".
Section 2.05. Interest.
If Tenant shall fails to pay within five (5) days from when the same is due and payable, any rent
or any additional rent, Tenant shall, upon demand, pay Owner (i) a late charge of $100.00 for each
installment of Annual Minimum Rent or other charge past due and (ii) interest at the "Interest Rate" (as
defined in Section 23.04) on the arrearages from the due date thereof until paid.
ARTICLE ill - RECORDS; REPORTS AND AUDIT
Section 3.01. Tenant's Records; Reports and Audit.
Tenant agrees to prepare and keep true and complete records and accounts for at least 24 months
after each Lease Year during the term of this Lease of all final records including but not limited to
income statement, balance sheet and financial statement for each such Lease Year in accordance with
generally accepted accounting principles consistently followed. Tenant shall provide such financial
records to Owner within 15 days of Owner's written request for the purpose of satisfying a current or
future mortgagee or purchaser in the event that Owner would refinance or sell the Shopping Center and
such mortgagee or purchaser would request such information; provided that Owner shall (i) keep
confidential, not disclose (other than to the mortgagee or purchaser) or otherwise use for its benefit, such
information, and (ii) cause the mortgagee or purchaser to agree in writing to keep confidential, not
disclose or otherwise use for its benefit such information.
ARTICLE IV - CONSTRUCTION. ALTERATIONS. ADDITIONS AND RELOCATIONS OF
IMPROVEMENTS
Section 4.01. Owner's and Tenant's Work.
(A) Owner and Tenant shall construct the Leased Premises in accordance with the provisions
of Exhibits B. All of Tenant's Work with respect to utility installations shall also be subject to approval,
when applicable, by the utility company furnishing the service.
(B) Owner or an authorized utility company shall have the right to construct, maintain,
repair, replace and relocate utility lines, pipes, conduits and duct work where necessary or desirable,
through attic space, column space or other similar areas of the Leased Premises, and to repair, alter,
replace or remove the same, all in a manner which does not interfere unreasonably with Tenant's use
thereof, and Tenant shall not be entitled to an abatement or reduction of rent or to claim an actual or
constructive eviction by reason thereof. "Owner's Work" (hereinafter defined in Exhibit B) shall be
deemed approved by Tenant in all respects except for items of Owner's Work which are not completed or
do not conform to Exhibit B and as to which Tenant shall have given notice to Owner within 30 days
after the commencement of the term.
Section 4.02. Changes and Additions to the Shopping Center.
Notwithstanding anything set forth in this Lease to the contrary, it is agreed that Owner reserves
the right, without invalidating this Lease or modifying any provision thereof except Exhibit A, at any
7
time either before, during or after the initial construction thereof, (i) to make alterations, changes,
deletions and additions (including additional stories) to the buildings, Common Facilities and other
improvements in the Shopping Center (excluding the interior of the Leased Premises); (ii) to add and
permit to be added additional land(s) to the Shopping Center and to exclude land(s) therefrom; (iii) to
construct and to permit to be constructed additional buildings and other improvements in the Shopping
Center; (iv) to remove or relocate the whole or any part of any building or other improvement in the
Shopping Center; and (v) to relocate the premises leased to any other tenant. PROVIDED, HOWEVER,
the foregoing shall not be construed as permitting Owner to change the location of, or otherwise
unreasonably interfere with Tenant's use of the Leased Premises.
ARTICLE V - CONDUCT OF BUSINESS BY TENANT
Section 5.01. Use of Premises.
Tenant shall operate the Leased Premises under the "Trade Name", if any, specified in Section
A-I of the Basic Lease Provisions and shall use the Leased Premises solely for the "Permitted Uses"
specified therein and for no other use or purpose whatsoever. Tenant shall not permit any business to be
operated in or from the Leased Premises by any concessionaire or licensee without the prior consent of
Owner.
Section 5.02. Operation of Business.
Tenant shall, subject to the provisions of Section 22.02, (i) open the Leased Premises by the date
provided in Section 1.02 and thereafter continuously operate all of the Leased Premises in good faith
during the term so as to produce the maximum profitable and practical Gross Receipts which may be
produced by such manner of operation; and (ii) keep the Leased Premises open for business and the signs
therefore lighted during such reasonable and customary lunch and dinner hours for an eat in/dine in
restaurant. If Tenant defaults in respect to any of the foregoing covenants then Tenant shall, in
recognition of the difficulty or impossibility of determining Owner's damages, pay to Owner, upon
demand, as liquidated damages (and not as a penalty) and in addition to the Annual Minimum Rent and
other charges payable under this Lease, a separate charge equal to 1/365 of the then applicable Annual
Minimum Rent for each day, or part thereof, Tenant fails to open or operate the Leased Premises in
accordance with the provisions of this Section.
5.03. Radius Restriction.
If Tenant or "Guarantor" (if any) or (if Tenant is not an individual or partnership) any subsidiary
or parent corporation of Tenant or Guarantor, or any affiliate of Tenant or Guarantor shall directly or
indirectly engage or participate in, as owner, principal, employee or agent, or through any subsidiary, or
affiliate, or furnish financial or other aid or support to, any business enterprise or undertaking which is
materially competitive with the uses specified in Section 5.01 of the Lease Agreement, and such business
is located within 3 miles from any boundary line of the Shopping Center, then Owner shall have the right,
in recognition of the fact that the Annual Percentage Rent payable hereunder may be reduced by such
competition, to require by notice to Tenant that 33 % of any and all gross sales (which shall be
coextensive in scope to Gross Receipts as defined in this Lease) made at, in or from any such competing
operation shall be deemed Gross Receipts for the purpose of computing the Annual Percentage Rent due
under this Lease, with the same force and effect as though such percentage of gross sales had actually
been made in the Leased Premises and in such event the provisions of Article ill shall be applicable to
such competing operation and the gross sales received therein.
8
Section 5.04. Parking.
Tenant and employees of Tenant shall park their automobiles in the side and rear parking areas
designated by Owner for employees. Owner shall provide appropriate lighting for said area. In the event
that Owner observes or becomes aware of a pattern of Tenant's employees parking in unauthorized areas,
Owner shall notify Tenant in writing. If Tenant's employees continue parking in such areas after such
written notice, Owner shall be entitled to tow improperly parked vehicles at the automobile owner's
expense and without further notice.
ARTICLE VI - TAXES
Section 6.0 I. Taxes.
(A) The term "Taxes" shall mean the aggregate of the real estate taxes, assessments and other
governmental charges and levies, general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind or nature whatsoever (including assessments for public improvements or benefits
and interest on unpaid installments thereof) which may be levied, assessed or imposed or become liens
upon the Shopping Center, or which arise out of the use, occupancy or possession of the Shopping Center
(land, buildings and permanent improvements) from time t6 time. The term "Taxes" shall not, however,
include inheritance, estate, succession, transfer, gift, franchise, corporation, income or profit tax imposed
upon Owner, nor penalties imposed upon Owner for Owner's delinquent payment of the Taxes;
PROVIDED, HOWEVER, that if at any time during the term of this Lease the methods of taxation
prevailing at the commencement of the term of this Lease shall be altered so that in addition to or in lieu
of or as a substitute for the whole or any part of the Taxes now levied, assessed or imposed on real estate
as such there shall be levied, assessed or imposed (i) a tax on the rents received from the Shopping
Center; or (Ii) a license fee measured by the rents receivable by Owner from the Shopping Center; or (iii)
a tax or license fee imposed upon Owner which is otherwise measured by or based in whole or in part
upon the Shopping Center or any portion thereof, then such tax or fee shall be included in the
computation of Taxes, computed as if the amount of such tax or fee so payable were that part due if the
Shopping Center were the only property of Owner subject thereto.
(B) The term "Tax Year" shall mean the 12 month period established as the real estate tax
year by the taxing authorities having jurisdiction over the Shopping Center.
(C) The term "Tenant's Tax charge" shall mean an amount equal to the product obtained by
multiplying the sum of the Taxes for each Tax Year plus all costs, expenses and attorneys' fees incurred
by Owner in contesting any Taxes during such Tax Year (which Owner may do at its option) by
"Tenant's Percentage Share" (hereinafter defined in Section 23.04) as of the date the Taxes for such Tax
Year are assessed. For the Tax Year in which this Lease commences or terminates, Tenant's Tax Charge
shall be prorated.
(D) Tenant's Tax Charge shall be paid to Owner in monthly installments (as estimated by
Owner) in advance on the first day of each calendar month during such Tax Year. Owner's estimate of
Tenant's Tax Charge for the Tax Year in which this Lease commences is set forth in Section A-I of the
Basic Lease Provisions. Within 90 days after the end of each Tax Year, Owner shall deliver a copy to
Tenant of all tax bills for such Tax Year and certify to Tenant the amount of Tenant's Tax Charge and
Owner and Tenant shall then adjust any overpayment or underpayment by Tenant of Tenant's Tax Charge
for such Tax Year. Any payment required in connection with an overpayment or underpayment shall be
due within thirty (30) days. Owner's failure to provide such information within the 90 days shall in no
way excuse the Tenant from its obligations to pay any underpayment or constitute a waiver of Owner's
right to bill and collect such underpayment from Tenant in accordance with this paragraph.
9
(E) Tenant shall pay (or reimburse Owner upon demand if the same are levied against Owner
or the Shopping Center), before delinquency, any and all taxes, assessments, license fees and public
charges, of whatever kind or nature, levied or assessed during the term by any governmental authority
against Tenant's business in the Leased Premises and the fixtures, furniture, appliances and any other
personal property therein.
(F) Owner shall have the sole, absolute and unrestricted right (but not the obligation) to
contest and/or compromise the validity or amount of any Tax by appropriate proceedings. Owner shall
have the right (but not the obligation), if permitted by law, to make installment payments of any
assessments levied against the Shopping Center, and in such event, Tenant's share of the Taxes shall be
computed upon the installments thereon paid by Owner in each Tax Year.
ARTICLE VII - COST OF MAINTENANCE AND CONTROL OF COMMON FACILITIES
Section 7.01. Common Facilities Contribution.
In each calendar year during the term, Tenant shall pay to Owner an amount (the "Common
Facilities Contribution") equal to a proportion of the "Operating Cost" (as defined in Section 7.02) of the
Common Facilities ("Tenant's Common Facilities Contribution"). Tenant's Common Facilities
Contribution for each calendar year during the term shall be that portion of the Operating Cost for such
calendar year equal to the product obtained by multiplying the Operating Cost for such calendar year by
Tenant's Percentage Share (hereinafter defined in Section 23.04) as of the first day of such calendar year.
Section 7.02. Operatinl! Cost and Common Facilities Defined.
(A) The term "Operatinl! Cost" shall mean the total cost (other than the cost properly
chargeable to capital account, except as herein specifically provided) and expense incurred in operating,
maintaining, equipping, inspecting, protecting and repairing the Common Facilities, including without
limitation, the cost or expense of, or incurred in connection with or reasonably attributable to: water, gas,
electricity and other utilities; gardening and landscaping (including planting and replacing flowers and
shrubs); cleaning; fire protection (including installation and maintenance of an ADT or similar type
system); fees for required licenses; all Taxes levied, assessed or imposed or which may become a lien on
the Common Facilities or which may arise out of the use thereof and not otherwise collected elsewhere
under the terms of this Lease; line painting; the repair and maintenance of the roof and finished ceiling
(including lighting) of all Shopping Center canopies; operating of loudspeakers and other equipment
supplying music; sanitary control; security services (if any); sewer service charges; removal of ice,
snow, trash, rubbish, debris, garbage and other refuse (including ice and snow removal immediately in
front of Tenant's storefront); depreciation on machinery and equipment used in such maintenance;
resurfacing and restriping of parking areas; repairing the roof of the Shopping Center; and on-site
personnel to provide and supervise such services (including wages, unemployment and social security
taxes and the cost of uniforms for such personnel); plus an amount equal to ten percent (10%) of the total
of all of the foregoing as an agreed upon reimbursement covering the administrative costs to be incurred
by Owner in connection with the operation of the Common Facilities.
(B) The term "Operating Cost" shall also include any municipal improvements required by
the local municipality to be made to the Common Facilities including but not limited to traffic signals,
stop signs, and road repair. Tenant's Common Facility Contribution for any improvements or repairs
required under this Section 7.02(B) shall be obtained by multiplying the cost of the municipal
improvements or repairs made to the Common Facilities by Tenant's Percentage Share.
(C) The term "Common Facilities" shall mean all areas, space, equipment and special
services in or serving the Shopping Center, provided for the common or joint use and benefit of Owner,
10
the occupants of the Shopping Center, and their employees, agents, servants, customers and other
invitees, including, without limitation: any open pedestrian malls; parking areas and parking lot
improvements; access roads; driveways; retaining walls; exterior boundary walls and fences; water,
sanitary and storm sewer (including any off-site sewer lines which Owner is required to maintain), gas,
electric, telephone and other utility lines, systems, conduits and facilities to the perimeter walls of any
building (even though intended for the use of only one or a limited number of occupants) and those
within a building serving more than one premises, and any of the foregoing which serve the Common
Facilities; on or off-site water detention and retention ponds, facilities and systems; on-site trash
compactor; plantings; landscaped areas; truck service ways or tunnels; loading dock areas and facilities;
the roof and finished ceiling (including lighting) of all Shopping Center canopies; courts; ramps;
sidewalks; comfort and first aid stations; washrooms; parcel pick-up stations; any Shopping Center pylon
sign; drinking fountains; vertical transportation equipment (including elevators and escalators);
auditoriums; community centers; bus stations; and the facilities appurtenant to each and all of the
foregoing.
Section 7.03. Pavment.
(A) Tenant's Common Facilities Contribution shall be paid in monthly installments on the
first day of each calendar month during the term in advance, in an amount reasonably estimated by
Owner. Owner's estimate of Tenant's Common Facilities Contribution for the calendar year in which this
Lease commences is set forth in Section A-I of the Basic Lease Provisions. Within 90 days after the end
of each calendar year during the term, Owner shall furnish Tenant with a statement summarizing the
actual Operating Cost for such calendar year and setting forth the method by which Tenant's Common
Facilities contribution was detennined as herein provided, and Owner and Tenant shall then adjust any
overpayment or underpayment by Tenant of Tenant's Common Facilities Contribution for such calendar
year with any resultant payment to be due within thirty (30) days. Owner's failure to provide such
statement within the 90 days shall in no way excuse Tenant from its obligations to pay any underpayment
or constitute a waiver of Owner's obligations to bill and collect such underpayment from Tenant in
accordance with this Paragraph. Any claim by Tenant for revision of any statement submitted by Owner
hereunder for any such calendar year which is not made within 90 days after receipt of such statement,
shall be deemed waived and discharged. For the calendar year in which this Lease commences or
tenninates, Tenant's Common Facilities Contribution shall be prorated.
(B) Any municipal improvements or repairs as contemplated in Section 7 .02(B) shall be paid
within thirty (30) days of Tenant's receipt from Owner of a payment statement. As such municipal
improvements are outside the control of the Owner, the Owner agrees to give Tenant prompt written
notice of any municipal improvements or repairs upon Owner's receipt of such notice from the
municipality.
Section 7.04. Control bv Owner.
Notwithstanding anything set out in this Lease to the contrary, it is agreed that (i) all Common
Facilities shall be subject to the exclusive control and management of Owner, and Owner may permit the
owners or occupants of land located outside the Shopping Center and their invitees to use the Common
Facilities, provided such use does not unreasonably interfere with Tenant's or its customer's use of the
Leased Premises; (ii) Owner shall have the right to temporarily close all or any portion of the Common
Facilities (including parking areas), provided, such closure does not unreasonably interfere with Tenant's
or its customers' use of the Leased Premises; (iii) Owner shall be required to keep the parking areas
lighted from dusk to dawn and not during any daylight hours, and (iv) Owner shall have the right to do
and perform such other acts in and to the Common Facilities as Owner shall determine to be advisable
with a view to the improvement of the convenience and use thereof by tenants of the Shopping Center
and their customers, including the right to pennit, in Owner's sole discretion, promotions in and
1l
decorations of the sidewalks and parking areas; PROVIDED, HOWEVER, Owner shall maintain the
Common Facilities in the Shopping Center in reasonably good order and repair, and shall keep the
parking area and other Common Facilities in the Shopping Center reasonably free of snow, ice and
debris and adequately lighted, but these obligations shall not inure to the benefit of any third party nor
confer upon any third party any rights or remedies in the event of Owner's failure to perform such
obligations.
ARTICLE vm AL TERA TIONS; SIGNS: SURRENDER AND TENANT LIENS
Section 8.01. Alterations.
Tenant shall not make or cause to be made any alterations, additions or improvements in or to the
Leased Premises without submitting to Owner plans and specifications therefore and obtaining Owner's
consent thereto, which consent shall not be unreasonably withheld or delayed.
Section 8.02. Surrender; Title to Improvements; Removal and Restoration bv Tenant.
(A) On the last day of the term or on the sooner termination thereof, Tenant shall (i) subject
to the provisions of Articles XVI and XVII, peaceably surrender the Leased Premises broom clean and in
good order, condition and repair except for reasonable wear and tear; (ii) at its expense remove from the
Leased Premises the signs, moveable furniture and trade fixtures (including, without limitation, molly-
bolts, screws and other items inserted into the walls of the Leased Premises) which were furnished and
installed by Tenant at Tenant's sole expense ("Tenant's Propertv") and, if requested by Owner, remove, at
Tenant's expense, the carpeting in the Leased Premises, and (iii) deliver to Owner a certificate of
inspection from a reputable mechanical systems contractor that the heating, ventilating, air conditioning,
electrical and plumbing systems are in good order, condition and repair. Any damage to the Leased
Premises caused by Tenant in the removal of Tenant's Property shall be repaired by Tenant at Tenant's
expense (including, without limitation, the patching and sanding of molly-bolt holes and other similar
type holes in the walls of the Leased Premises).
(B) Except for Tenant's property, the title to all alterations, additions, improvements, repairs,
decorations, non-trade fixtures, equipment (including heating and air conditioning equipment) and
appurtenances attached to or built into the Leased Premises which shall have been made, furnished or
installed by or at the expense of either Owner or Tenant in or upon the Leased Premises shall become
upon the installation thereof and remain a part of the Leased Premises without disturbance or charge,
except that Owner may elect to require Tenant, at Tenant's expense, to remove any or all of such
alterations, additions, improvements, non-trade fixtures, equipment, and/or appurtenances, and Tenant
shall upon such removal restore the Leased Premises to good condition, subject to ordinary wear and
tear.
Section 8.03. Tenant's Liens.
(A) Before Tenant permits any work, labor, services or materials to be performed for or
furnished to the Leased Premises, Tenant shall require any party with whom Tenant contracts to perform
said work to Tenant or anyone holding all or any part of the Leased Premises under Tenant to file a
stipulation against liens pursuant to ~1402 of the Pennsylvania Mechanics' Lien Law of 1963 (49 P.S.
~1401, et seq.).
(B) Tenant shall not suffer any mechanics' or materialmen's lien to be filed against the
Leased Premises or the Shopping Center by reason of work, labor, services or materials performed or
furnished to Tenant or anyone holding all or any part of the Leased Premises under Tenant. If any such
12
lien shall at any time be filed as aforesaid, Tenant may contest the same in good faith but notwithstanding
such contest, Tenant shall, within 15 days after the filing thereof, cause such lien to be released of record
by payment, bond, order of a court of competent jurisdiction, or otherwise.
In the event that Tenant fails to take the actions that are necessary to cause such lien to be
released, then the Owner shall have the right to take whatever actions are necessary to have said liens
released. In such event, Tenant agrees to reimburse the Owner for all costs incurred by the Owner,
including attorneys' fees. A failure by the Tenant to reimburse the Owner these costs shall be a default
by Tenant pursuant to Article XVllI.
(C) Tenant shall not create or suffer to be created a security interest or other lien against any
improvements, additions or other construction made by Tenant in or to the Leased Premises or against
any equipment or fixtures installed by Tenant therein (other than Tenant's Property).
Section 8.04. Tenant's Signs.
Tenant shall not install any sign, billboard, marquee, awning, placard, lettering, advertising
matter or other thing of any kind, whether permanent or temporary, on the exterior of the Leased
Premises, or in or on any glass window, window showcase, .or door of the Leased Premises until the same
has been approved by the Owner in writing. Owner has the right to control the size, location, design and
materials of the same for the purpose of establishing and maintaining the appearance of the Shopping
Center. Owner shall not unreasonably withhold or delay its approval of Tenant's sign(s).
ARTICLE IX - MAINTENANCE OF LEASED PREMISES: RULES AND REGULATIONS
Section 9.01. Maintenance bv Tenant.
Subject to the provisions of Articles XVI and xvn, Tenant shall, at its sole cost, keep and
maintain the interior of the Leased Premises [together with exterior (i) feature lighting, (ii) windows,
including sashes, (iii) heating, ventilating and air conditioning equipment and sewer and other lines
serving the Leased Premises exclusively, (iv) doors, including frames, locks, hardware and track, (v)
store front of the Leased Premises, and (vi) signs and other equipment referred to in Section 8.04],
including without limitation, the partitions, ceiling, interior portions of exterior walls, floor covering
therein, and the fixtures, equipment, machinery, appliances and utility lines therein and appurtenances
thereof [such as, but not limited to, lighting fixtures and lenses and such fixtures, equipment, machinery
controls, appliances and utility lines and appurtenances thereof, as are used for, in connection with or
which are a part of the electrical, plumbing, heating, air conditioning, ventilating, sprinkler, or any other
mechanical systems in or serving the Leased Premises], in confonnity with all rules and regulations of
Owner's hazard insurer, neat and clean and in good order, condition, maintenance and repair. Tenant
shall also at its cost procure and maintain in the Leased premises all safety appliances required by
Owner's hazard insurer to be maintained therein. Tenant shall replace any and all plate, window and
other glass (structural or otherwise) in, on or about the Leased Premises, which may be broken or
destroyed, with glass of the same or similar quality. Before undertaking repairs to the Leased Premises
(other than minor interior non-structural repairs), Tenant shall first obtain Owner's approval of the plans
and specifications therefore, which approval is not to be unreasonably withheld. Owner shall authorize
one (I) heating and air conditioning contractor who shall provide a complete service and maintenance
contract to Tenant who shall be the named party on the contract for the changing of filters at least once
per month, the monthly inspection of the HV AC equipment serving the Leased Premises, including a
written report of the condition there of to be provided to Owner and Tenant, the periodic oiling of the
equipment where required, the tightening of belts, the filling of pitch pans and the sealing of water leaks,
among other things. The service and maintenance contract and its related costs shall be the sole cost and
13
expense of the Tenant. The existence of a service contract with an Owner approved vendor shall not
relieve Tenant of its obligations to maintain and repair such equipment as above provided.
Section 9.02. Maintenance bv Owner.
Subject to the provisions of Articles XVI and xvn and to the obligations of Tenant under the
provisions of Sections 9.01, the foundations, roof (excluding interior ceilings), and exterior portions of
the exterior walls (excluding store front) of the Leased Premises shall be maintained by Owner at its
expense in good order, condition, maintenance and repair. Owner shall not be deemed to have breached
its obligation to make the repairs required of Owner as set forth in this Section, or to be liable for any
damages resulting therefrom, unless Owner fails to make the same within a reasonable period (taking into
consideration the type of repair involved) after receiving notice from Tenant of the need therefore.
Section 9.03. Rules and Regulations.
Tenant agrees to comply with and observe the rules and regulations set forth in Exhibit C.
Owner reserves the right, at any time, once or more often, by notice to Tenant, to amend or supplement
said rules and regulations in a reasonable and non-discriminatory manner.
ARTICLE X - INSURANCE AND INDEMNITY
Section 10.01. Liabilitv Insurance.
Tenant shall keep in force with an insurance company authorized to do business in the State in
which the Leased Premises are located and which has a Best's Insurance Guide Rating of A+:XV
("Oualified Carrier"), a policy of comprehensive public liability insurance, including property damage,
with respect to the Leased Premises and the business operated by Tenant and any other occupant of the
Leased Premises, in which the limits of coverage shall not be less than $3,000,000.00 (combined single
limit bodily injury and property damage). Such policy shall also insure the performance by Tenant of the
indemnity agreement set forth in Section 10.04. In addition to Tenant, the policy shall also name Owner
and any other person, firm or corporation designated by Owner and in privity with it, as an additional
insured. Tenant shall continually provide Owner with a certificate of such insurance (the first of which
shall be provided prior to commencement of Tenant's Work), which shall provide that the insurer will
give Owner at least 30 days' written notice prior to any cancellation of, lapse or material change in the
insurance. The insurance required in this Section and in Section 10.02 may be covered under a so-called
"blanket" policy covering other stores of Tenant and its affiliates.
Section 10.02. Fire Insurance.
Tenant shall keep in force with a Qualified Carrier fire insurance (with extended coverage and
vandalism and malicious mischief coverage), water damage, sprinkler leakage and plate glass. insurance,
on the standard forms, insuring all of Tenant's Property in the Leased Premises, and all betterments,
additions, repairs, improvements and alterations made to the Leased Premises by Tenant, and all plate
glass windows, plate glass doors and other plate glass in the Leased Premises, in an amount equal to
100% of the replacement cost thereof. The proceeds of such insurance shall be held in trust by Owner
and Tenant for use in repairing and restoring the items covered thereby and the proceeds shall be made
payable to Owner and Tenant and may only be disbursed jointly by Owner and Tenant. The foregoing
policy of insurance shall be issued in favor of and in the names of Owner and Tenant, as their interests
may appear, and Tenant shall furnish Owner and the holder of any mortgage on the Leased Premises with
a certificate evidencing such coverage, which certificate shall provide that the insurance shall not be
canceled, materially amended or allowed to lapse without thirty (30) days' prior written notice thereof
being given by the insurance carrier to Owner.
14
Section lO.03. Insurance on Buildings and Improvements in the Shopping Center.
(A) In each calendar year during the term, Tenant shall pay to Owner an amount (the
"Tenant's Insurance Contribution") equal to a proportion of the "Insurance Cost" (as defined in paragraph
(B) of this Section). Tenant's Insurance Contribution for each calendar year during the tenn shall be that
portion of the Insurance Costs for such calendar year equal to the product obtained by multiplying the
Insurance Cost for such calendar year by Tenant's Percentage Share (hereinafter defined in Section
23.04) as of the first day of such calendar year.
(B) The tenn "Insurance Cost" shall mean the total cost of insuring the buildings and
improvements in the Shopping Center (including Common Facilities), including public liability,
(including "umbrella coverage"), workmen's compensation and hazard insurance (including rental value
insurance, fire and extended coverage [with vandalism and malicious mischief endorsement]; boiler and
machinery, and all-risk policies).
(C) Tenant's Insurance Contribution shall be paid in monthly installments on the first day of
each calendar month during the term in advance, in an amount reasonably estimated by Owner. Owner's
estimate of Tenant's Insurance Contribution for the calendar year in which this Lease commences is set
forth in Section A-I of the Basic Lease Provisions. Within 90 days after the end of each calendar year
during the tenn, Owner shall furnish Tenant with a statement summarizing the actual Insurance Cost for
such calendar year and setting forth the method by which Tenant's Insurance Contribution was
determined as herein provided and Owner and Tenant shall then adjust any overpayment or
underpayment by Tenant of Tenant's Insurance Contribution for such calendar year with any resultant
payment to be due within thirty (30) days. Any claim by Tenant for revision of any statement submitted
by Owner hereunder for any such calendar year, which claim is not made within 90 days after receipt of
such statement, shall be deemed waived and discharged. For the calendar year in which this Lease
commences or terminates, Tenant's Insurance Contribution shall be prorated, if applicable, on the basis of
a 360-day year.
(D) Tenant shall provide Owner on an annual basis with proof of all insurance policies which
shall provide that the insurer will give the Owner at least 30 days' written notice prior to any cancellation
of, lapse of or material change in the insurance.
Section 10.04. Business Liabilitv Insurance. Tenant shall keep in force with a Qualified Carrier, a
policy to cover business liability, including premises operations liability and business interruption
liability, in which the limits of coverage shall not be less than $1,000,000.00, single limit. In addition to
Tenant, the policy shall name Owner as an additional insured. Tenant shall continually provide Owner
with a certificate of such insurance, which shall provide that the insurer will give the Owner at least 30
days' written notice prior to any cancellation of, lapse or material change in the insurance.
Section 10.05. Indemnification.
Tenant will, subject to the provisions of Section 10.06, indemnify, save harmless and defend
Owner and its officers, agents and servants, from and against any and all claims, actions, liability and
expense in connection with loss of life, bodily injury and/or damage to property arising from or out of
any occurrence in, upon or at the Leased Premises, or the occupancy or use by Tenant, its agents,
employees, servants, subtenants, licensees or concessionaires, of the Leased Premises or any part thereof,
or outside the Leased Premises which is occasioned wholly or in part by any willful or negligent act or
omission of Tenant, its agents, employees, servants, subtenants, licensees or concessionaires, unless the
same be caused by the willful or negligent act or omission of Owner, its agents, employees or servants.
16
Section 10.06. Waiver of Subrogation: Limitation of Liabilitv.
(A) Anything in this Lease to the contrary notwithstanding, it is agreed that each party (the
"Releasing Party") hereby releases the other (the "Released Party") from any liability which the Released
Party would, but for this Section 10.05, have had to the Releasing Party during the term of this Lease,
resulting from the occurrence of any accident or occurrence or casualty (i) which is or would be covered
by an "all-risk" policy (irrespective of whether such coverage is being carried by the Releasing Party), or
(ii) covered by any other casualty or property damage insurance being carned by the Releasing Party at
the time of such occurrence, which accident, occurrence or casualty may have resulted in whole or in part
from any act or neglect of the Released Party, its officers, agents or employees; PROVIDED,
HOWEVER, the release hereinabove set forth shall become inoperative and null and void if the
Releasing Party wishes to place the appropriate insurance with an insurance company which (a) takes the
position that the existence of such release vitiates or would adversely affect any policy so insuring the
Releasing Party in a substantial manner and notice thereof is given to the Released Party, or (b) requires
the payment of a higher premium by reason of the existence of such release, unless in the latter case the
Released Party within 10 days after notice thereof from the Releasing Party pays such increase in
premium.
(B) Anything in this Lease to the contrary notwithstanding, it is agreed that neither Tenant
nor Owner shall be liable to the other for any damage arising from the willful or negligent act or
omission of any other tenant or occupant of the Shopping Center.
Section 10.07. Notice bv Tenant.
Tenant shall within 24 hours after the occurrence of any casualty damage to or accidents in the
Leased Premises, gi ve Owner notice of such casualty damage or accident.
ARTICLE XI - UTILITIES
Section 11.01. Utilitv Charges.
Tenant shall contract in its own name for and promptly pay all charges for electricity, gas, water,
sewer, telephone and any other utility used or consumed in the Leased Premises to the concern furnishing
the same. In the event that separate service arrangements cannot be provided for any of the above, then
the Tenant agrees to pay their proportionate share of the utility charges which shall be collected as part of
the Common Facilities Contribution set forth in Article VII herein.
Section 11.02. Owner's Liabilitv for Interruption.
Owner shall not be liable in any way to Tenant or to any other party occupying any part of the
Leased Premises for any failure or defect in or of any utility service furnished to the Leased Premises or
the Common Facilities, by reason of any requirement, act or omission of the public utility company
serving the Shopping Center with electricity, water or other utility service, or because of necessary
repairs or improvements, or by reason of any cause referred to in Section 23.02.
17
ARTICLE XII - ESTOPPEL CERTIFICATE; ATTORNMENT; PRIORITY OF LEASE; RIGHTS OF
MORTGAGEE
Section 12.01. Estoppel Certificate.
Tenant agrees, within 10 days after written request by Owner, to execute, acknowledge and
deliver to and in favor of any proposed mortgagee or purchaser of the Shopping Center, an estoppel
certificate, in the form customarily used by such proposed mortgagee or purchaser, evidencing the status
of performance under this Lease and the terms of this Lease. Tenant agrees, within 10 days after written
request by Owner, to deliver to Owner a current financial statement of Tenant, duly certified by an
officer thereof (if Tenant is a corporation) and an independent certified public accountant and such other
financial information of Tenant as Owner shall reasonably request; provided, that the confidentiality of
such information is maintained in accordance with Section 3.01.
Section 12.02. Attornment.
Tenant shall, in the event any proceedings are brought for the foreclosure of, or in the event of
the exercise of the power of sale under, any mortgage made by Owner covering any part of the Shopping
Center, or in the event of any sale of the Shopping Center, attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as Owner under this Lease. Upon the request of any
interested party, Tenant shall execute, acknowledge and deliver an instrument, in form and substance
satisfactory to such party, evidencing the attornment provided for in this Section if, and only if, such
party acknowledges in such instrument, and agrees to be abide by, such party's obligations as "Owner"
under this Lease, and agrees therein (i) to recognize and abide by Tenant's rights under this Lease and
(ii) not to disturb Tenant's use or occupancy of the Leased Premises.
Section 12.03. Prioritv of Lease.
Upon written request of the holder of any first mortgage now or hereafter covering any part of
the Shopping Center, Tenant will subordinate its rights under this Lease or make this Lease prior in right
and priority to the lien thereof and to all advances made or hereafter to be made upon the security
thereof, and Tenant shall, within ten (10) days after written demand therefore, execute, acknowledge and
deliver an instrument, in the form customarily used by such encumbrance holder, effecting such priority;
PROVIDED, HOWEVER, at the option of the holder of such mortgage, such holder shall be entitled to
effect such priority by filing a unilateral declaration to that effect with the recorder of deed in the County
and State in which the Leased Premises is located.
Section 12.04. Rights of Owner's Mortgagee.
Within 10 days after demand by the holder of any mortgage covering all or any part of the
Shopping Center, Tenant shall execute, acknowledge and deliver an agreement in favor of and in the
form customarily used by such encumbrance holder, by the terms of which Tenant will agree to give
prompt notice to such encumbrance holder in the event of any casualty damage to the Leased Premises or
in the event of any default on the part of Owner under this Lease, and will agree to allow such
encumbrance holder a reasonable length of time (taking into consideration for the purpose of determining
such permitted length of time any delays encountered by reason of any of the causes referred to in
Section 23.02), after notice to cure or cause the curing of such default before exercising Tenant's rights of
self-help under this Lease, if any, or terminating or declaring a default under this Lease. In addition,
within 10 days after demand by the holder of any such mortgage or after demand by owner, Tenant shall
deliver to such encumbrance holder a current financial statement of Tenant and such other financial
information as such holder or Owner shall reasonably request; provided, that the confidentiality of such
information is maintained in accordance with Section 3.01.
18
ARTICLE xm - ASSIGNMENT, SUBLETTlNG AND CORPORATE OWNERSHIP
Section 13.01. Consent Required.
(A) Tenant shall not voluntarily, involuntarily or by operation of law assign or encumber this
Lease, in whole or in part, nor sublet all or any part of the Leased Premises without the prior consent of
Owner in each instance. Notwithstanding any assignment or subletting, Tenant shall remain fully liable
under this Lease and shall not be relieved from performing any of its obligations hereunder. As a
condition to any assignment of this Lease by Tenant, which is permitted under this Lease, the assignee
thereof shall be required to execute and deliver to Owner an agreement in recordable form, whereby such
assignee assumes and agrees with Owner to discharge all obligations of Tenant under this Lease.
(B) If Tenant shall request Owner's consent to an assignment of this Lease and Owner shall
consent thereto, the assignee ("Assignee") shall pay directly to Owner, as additional rent hereunder, at
such times as the Assignee shall have agreed to pay Tenant, an amount equal to any consideration the
Assignee shall have agreed to pay Tenant on account of such assignment. If Assignee shall fail to pay
Owner any such consideration when due, such failure shall constitute a default under this Lease.
(C) If Tenant shall request Owner's consent to a subletting of the Leased Premises or any part
thereof and Owner shall consent thereto, Tenant shall pay Owner, as additional rent, in addition to the
Annual Minimum Rent and other charges payable hereunder, an amount equal to any consideration paid
by the subtenant to Tenant in excess of (i) the Annual Minimum Rent and other charges payable
hereunder if all of the Leased Premises are so sublet or (ii) if less than all of the Leased Premises are so
sublet, the Annual Minimum Rent and other charges payable hereunder allocable to the portion of the
Leased Premises so sublet based on the number of square feet of Gross Leasable Area in the Leased
Premises so sublet divided by the total number of square feet of Gross Leasable Area in the Leased
Premises prior to such subletting. The foregoing amount shall be determined monthly and paid by Tenant
to Owner on the first day of each calendar month in advance during the term of such sublease. If Tenant
shall fail to pay Owner any such consideration, such failure shall be a default under this Lease.
Section 13.02. Corporate Ownership.
If at any time during the term a cumulative total of more than 49% of the voting stock of Tenant
(if Tenant shall be a corporation) shall be transferred, directly or indirectly, by sale, assignment, gift or in
any other manner, any such transfer shall, unless made with Owner's prior consent (which shall not be
unreasonably withheld or delayed), be deemed an unauthorized assignment of this Lease and a default by
Tenant under this Lease.
Section 13.03. Owner's Right to Assign.
If Owner conveys or transfers its interest in this Shopping Center or in this lease (which sale or
transfer may be effected without Tenant's consent), upon such conveyance or transfer, Owner (and in the
case of any subsequent conveyances or transfers, the then grantor or transferor) shall be released of and
from all liability with respect to the performance of any covenants and obligations on the part of Owner
to be performed after the date of such conveyance or transfer; it being intended hereby that the covenants
and obligations on the part of Owner to be performed under this Lease shall, subject to the provisions of
Section 21.01, be binding on Owner, its successors and assigns, only during and in respect of their
respective periods of ownership of an interest in the Shopping Center or in this Lease.
19
ARTICLE XIV
REGULA nONS
WASTE; HAZARDOUS WASTE; GOVERNMENTAL AND INSURANCE
Section 14.01. Waste or Nuisance.
Tenant shall not commit or suffer to be committed (i) any waste in or upon the Leased Premises
or (ii) any nuisance or any other act or thing (whether a nuisance or otherwise) which may disturb tbe
quiet enjoyment of any other tenant or occupant in the Shopping Center or its or their customers or other
invitees.
Section 14.02. Hazardous Waste.
(A) Tenant hereby covenants, represents and warrants that it shall not generate, transport, handle,
store or otherwise encounter in, on or about the Real Property, any hazardous waste or substance (for
purposes of this Section herein called "hazardous waste ") as defined by the applicable federal, state or
local environmental or occupational standards, including but not limited to material defined as such in, or
for purposes of, the Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), as amended by the Superfund Hazardous Materials Transportation Act (49 U.S.c. ~ 1802
et seq.), the Resource Conservation and Recovery Act ("RCRA") (42 U.S.c. ~ 1802, et ~.), the Federal
Water Pollution Control Act (33 U.S.C. ~1251, et ~.), the Safe Drinking Water Act (42 U.S.c. ~300(f),
et .llij.), the Toxic Substance Control Act (15 D.S.C. ~2601, ~ .llij.), the Clean Air Act (42 U.S.C p401,
et ~.), or any other federal, state or local statute, ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance, element or material as now or at any time hereafter in effect or amended (for
purposes of this Section herein collectively called the "Laws"). Tenant further covenants, represents and
warrants that there will be no underground storage tanks in, on, under, within or about the Real Property.
(B) Tenant shall not use, store or permit to be stored on the Leased Premises any asbestos in
any form, urea formaldehyde foam insulation, transfonners or other equipment which contains dielectric
fluid or other fluids containing levels of polychlorinated biphenyls in excess of fifty (50) parts per
million. If Tenant shall utilize the Leased Premises for medical office purposes, Tenant shall dispose of
all syringes, blood products, "sharps", medical instruments and all other types of medical waste in a safe,
clean, sanitary manner and in accordance with all applicable laws and regulations.
(C) Tenant covenants, represents and warrants that it will indemnify and hold Landlord
harmless from and against any and all liability, actions, claims, losses, damages and expenses arising out
of, or in any way relating to, a breach of the representations, warranties, covenants and agreements set
forth in this Section, including: (a) claims of third parties (including governmental agencies) for
damages, including personal injury or property damages, penalties, response costs, injunctive or other
relief; (b) costs or removal and restoration, including fees of attorneys and experts, costs of reporting to
any governmental agency the existence of hazardous substances, hazardous waste, pollutants and/or
contaminants and costs of preparing or causing to be prepared any and all studies, tests, analyses or
reports in connection with any environmental matter: (c) all expenses or obligations, including attorneys'
fees, incurred at, before and after any trial or appeal therefrom whether or not taxable as costs, including
attomeys' fees, witness fees, deposition costs and other expenses; (d) all other costs, expenses and
liabilities arising from Tenant's violation of the laws or any other environmental regulation now in force
or hereafter enacted; and (e) Tenant's disposal of medical waste as set forth in paragraph (A) above. The
obligations of Tenant as contained in this Section shall survive the termination of the Lease.
20
Section 14.03. Governmental and Insurance Regulations.
Tenant shall, at Tenant's sole cost, comply with all of the requirements of all governmental
authorities (including without limitation those requiring replacements, additions, repairs and alterations,
[structural or otherwise]), and with all directions, rules, regulations and recommendations of Owner's
hazard insurer, now in force, or which may hereafter be in force, pertaining to (i) the Leased Premises,
(ii) all of Tenant's Property in the Leased Premises and (iii) the use and occupancy of the Leased
Premises.
ARTICLE XV - MERCHANTS ASSOCIATION INTENTIONALLY OMITTED
ARTICLE XVI - DESTRUCTION
Section 16.01. Destruction of Leased Premises
(A) If the Leased Premises are damaged or destroyed by fire or other casualty insurable
under standard fire and extended coverage insurance so as to become partially or totally untenantable, the
same, unless this Lease is terminated as provided in paragraph (B), shall be repaired and restored by
Owner and Tenant with due diligence, and during such restoration period, the Annual Minimum Rent
(but not the Annual Percentage Rent) and other charges payable hereunder shall equitably abate to the
extent the Leased Premises are materially affected thereby. Owner's obligation under this paragraph (A)
to repair and restore shall be limited to the repair and restoration of those parts of the Leased Premises
which were originally constructed and or installed by Owner at its expense including but not limited to
Owner's Work set forth in Exhibit B. All other repair and restoration shall be the responsibility and at
the expense of the Tenant.
(B) If the Leased Premises are damaged or destroyed to the extent the cost of restoration
thereof would exceed 15% of the amount it would have cost to replace the Leased Premises in its entirety
at the time such damage or destruction occurred, then either party may elect to terminate this Lease by
giving notice to the other party of its election to do so within 30 days after such occurrence. If either
party exercises its right to terminate this Lease, then this Lease shall cease, effective as of the date of
such damage or destruction, and all rent and other charges payable by Tenant shall be adjusted as of that
date.
Section 16.02. Destruction of Shoooing Center.
Notwithstanding anything to the contrary set forth in Section 16.01, in the event all or any
portion of the Shopping Center shall be damaged or destroyed by fire or other cause (notwithstanding
that the Leased Premises may be unaffected thereby), to the extent the cost of restoration thereof would
exceed 25% of the amount it would have cost to replace the Shopping Center in its entirety at the time
such damage or destruction occurred, then either party may terminate this Lease by giving 30 days' prior
notice to the other party of it's election so to do, which notice shall be given, if at all, within 90 days
following the date of such occurrence. In the event of the termination of this Lease as aforesaid, this
Lease shall cease 30 days after such notice is given, and the rent and other charges hereunder shall be
adjusted as of that date.
ARTICLE XVII - EMINENT DOMAIN
Section 17.01. Condemnation of Leased Premises.
21
In the event of any condemnation or conveyance in lieu thereof of the Leased Premises or the
Shopping Center, or both, whether whole or partial, either party may terminate this Lease, and in any
event, Tenant shall have no claim against Owner or the condemning authority for the value of the
unexpired term, and Tenant shall not be entitled to any part of the compensation or award, whether paid
as compensation for diminution in value to the leasehold or to the fee of the Leased Premises, and Owner
shall receive the full amount thereof, Tenant hereby waiving any right to any part thereof and assigning
to Owner its interest therein.
ARTICLE XVIII - TENANT'S DEFAULT: AND SECURITY DEPOSIT
Section 18.01. Default bv Tenant
If the Annual Minimum Rent, Annual Percentage Rent, additional rent, or any other charge
payable by Tenant under this Lease shall be unpaid on the date payment is required by the terms hereof
and shall remain so for a period of 5 days after Owner gives Tenant notice of such default, or if Tenant
fails to perform any of the other terms, conditions, covenants and obligations of this Lease to be observed
and performed by Tenant for more than 21 days after Owner gives Tenant notice of such default (it being
agreed that a default, other than the failure to pay money, which is of such a character that rectification
thereof reasonably requires longer than said 21 day period. and completes the same with due diligence),
or if Tenant shall vacate or abandon the Leased Premises (it being agreed that, subject to the provisions
of Articles XVI and XVIl and to Section 23.02, Tenant's failure to operate its business in the Leased
Premises for seven consecutive days or more shall conclusively be deemed an abandonment) or suffer
this Lease to be taken under any writ of execution, attachment or other process of law, or if this Lease
shall by operation of law devolve upon or pass to any other party other than a party, if any, to whom
Tenant is authorized to assign this Lease by the provisions of Section 13.01, or if an "Act of Bankruptcy"
(as defined in Section 18.02) shall occur, or if Owner shall have notified Tenant of Tenant's default three
(3) or more times in any twelve calendar month period, then, in any of such events, Owner shall have,
besides its other rights or remedies, the following immediate rights:
(1) At its option, to terminate this Lease and the term hereby created without any right on the
part of Tenant to waive the forfeiture by payment of any sum due or by other performance of any
condition, term or covenant broken, whereupon Owner shall be entitled to recover, in addition to any and
all sums and damages for violation of Tenant's obligations hereunder in existence at the time of such
termination, damages for Tenant's default in an amount equal to the amount of the rent reserved for the
balance of the term of this Lease, as well as all other charges, payments, costs and expenses herein
agreed to be paid by Tenant, all discounted at the rate of six percent (6%) per annum to their then present
worth, less the fair rental value of the Premises for the remainder of said term, also discounted at the rate
of six percent (6%) per annum to its then present worth, all of which amount shall be immediately due
and payable from Tenant to Owner.
(2) At its option, by notice to Tenant, to re-enter and take possession of the Leased Premises
without tenninating this Lease. No re-entry or taking possession of the Leased Premises by Owner
pursuant to this clause (2) shall be construed as an election on its part to tenninate this Lease unless a
notice of such intention is given to Tenant (all other demands and notices of forfeiture or other similar
notices being hereby expressly waived by Tenant).
(3) At its option, to require that upon (i) any termination of this Lease, whether by lapse of
time or by the exercise of any option by Owner to tenninate the same or in any other manner whatsoever,
or (ii) any tennination of Tenant's right to possession without tennination of this Lease, Tenant shall
immediately surrender possession of the Leased Premises to Owner and immediately vacate the same,
and remove all effects therefrom, except such as may not be removed under other provisions of this
Lease.
22
(4) At its option, to make such alterations and repairs as Owner shall determine may be
reasonably necessary to relet the Leased Premises, and to relet the same or any part thereof for such term
or terms (which may be for a term extending beyond the term of this Lease) and upon such tenns and
conditions as Owner in its sole discretion may deem advisable. Upon each reletting, all rentals received
by owner from such reletting shall be applied as follows: first, to the payment of any indebtedness other
than rent or other charges due under this Lease from Tenant to Owner; second to the payment of any
reasonable costs and expenses of such reletting, including brokerage fees and attorneys' fees and costs of
such alterations and repairs, each of which fees and costs shall be reasonable in amount; and third, to the
payment of rent and other charges due and unpaid hereunder. In no event shall Tenant be entitled to
receive any surplus of any sums received by Owner on a reletting in excess of the rental and other
charges payable hereunder. If such rentals and other charges received from such reletting during any
month are less than those to be paid during that month by Tenant hereunder, Tenant shall pay any such
deficiency to Owner (notwithstanding the fact that Owner may have received rental in excess of the
rental and other charges payable hereunder in previous or subsequent months), such deficiency to be
calculated and payable monthly. Notwithstanding any reletting without termination, Owner may at any
time thereafter elect to terminate this Lease for such previous breach in the manner provided in this
Section.
(5) If Tenant shall default in the payment of the rent herein reserved or in the payment
of any other snms due hereunder by Teuant, Tenant hereby authorizes and empowers auy
Prothouotary or attorney of any court of record to appear for Tenant in any and all actions which
may be brought for said rent and/or said other sums; and/or to sign for Tenant an agreement for
entering in any competent court an amicable action or actions for the recovery of said rental
and/or other SUIOS; and in said suits or in said amicable action or actions to confess judgment
against Tenant for all or any part of said rental and/or said other sums, including but not limited
to the amounts due from Tenant to Owner under subparagraphs (1), (2), (3) and/or (4) of the
Paragraph; and for interest and costs, together with any attorneys' commission for collection of
ten percent (10 %). 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 rental and/or other sums
shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the
initial term of this Lease and/or during any extended or renewal term of his Lease and/or after the
expiration of any extended or renewal term of this Lease.
(Tenant)
(6) When this Lease and the term of any extension or renewal thereof shall have heen
terminated on account of any default by Tenant hereunder, and also when the term hereby created
or any extension or renewal thereof shall have expired, it shall be lawful for any attorney of any
court of record to appear as attorney for Tenant as well as for all persons claiming by, through or
under Tenant, and to sign an agreement for entering in any competent court an amicable action in
ejectment against Tenant and all persons claiming by, through or under Tenant and therein
confess jndgment for the recovery by Owner of possession of the Premises, for which this Lease
shall be his sufficient warrant; thereupou, if Owner so desires, an appropriate writ of possession
may issue forthwith, without any prior writ or proceeding whatsoever, and provided that if for any
reason after such action shall have been commenced it shall be determined that possession of the
Premises remain in or be restored to Tenant, Owner shall have the right for the same default and
upon any subsequent default or defaults, or upon the termination of this Lease or Tenant's right of
possession as hereinbefore set forth, to bring one or more further amicable action or actions as
hereinbefore set forth to recover possession of the Premises and C!feSS judgment for the recovery
of possession of the Premises as hereinbefore provided. ~ \
, \ I
(Tenant)
23
(7) In any amicable action of ejectment and/or for rent and/or other sums brought
hereon, Owner shall first cause to be rued in such action an affidavit made by Owner or someone
acting for Owner, setting forth the facts necessary to authorize the entry of judgment, of which
facts such affidavit shall be prima facie evidence, and if a true copy of this Lease (and of the truth
of the copy such affidavit shall be sufficient evidence) shall be filed in such suit, action or actions, it
shall not be necessary to file the original as a ~. arr nt of attorney, any rule or Court, custom or
practice to the contrary notwithstanding.
, (Tenant)
(8) At its option, to collect from Tenant any other loss or damage which Owner may sustain
by reason of any breach and any diminished value of the Leased Premises resulting from said breach.
'ves any notice to quit required by any law now in force of hereafter enacted.
(Tenant)
Nothing in this Section shall be deemed to limit Owner's rights and remedies in the event of a
default by Tenant, and the Owner's rights and remedies set forth in this Lease shall be in addition to
those available to Owner at law or in equity.
Section 18.02. Bankruptcv.
(A) If at any time prior to or after the commencement of the term of this Lease there shall be
filed by Tenant or Guarantor, in any court pursuant to any statute either of the United States or of any
State, a petition in bankruptcy (including, without limitation, a petition for liquidation, reorganization or
for adjustment of debts of an individual with regular income), or if any case, proceeding or other action
shall be commenced seeking to have an order for relief entered against Tenant or Guarantor as a debtor in
bankruptcy proceedings or to adjudicate Tenant or Guarantor a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under
any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of
a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property,
and such case, proceeding or other action results in the entry of an order for relief or is not dismissed
within 30 days of the filing thereof, or if Tenant or Guarantor becomes insolvent or is generally not
paying or admits in writing its inability to pay its debts as they mature, or makes an assignment for the
benefit of creditors or petitions for or enters into an arrangement with its creditors or a custodian is
appointed or takes possession of Tenant's or Guarantor's property (whether or not a judicial proceeding
is instituted in connection with such arrangement or in connection with the appointment of such
custodian), or if Tenant or Guarantor shall take any action to authorize or in contemplation of any of the
events set forth above (each of the foregoing events to be hereinafter referred to as an "Act of
Bankruptcv"), then, in addition to Owner's other rights and remedies under this Lease and applicable
law, this Lease shall, at Owner's option (and if permitted by law), be terminated, in which event neither
Tenant nor Guarantor, nor any person claiming through or under Tenant or Guarantor or by virtue of any
statute or of an order of any court, shall be entitled to possession of the Leased Premises, and Owner, in
addition to the other rights and remedies given by this Lease, or by virtue of any statute or rule of law,
may retain as liquidated damages any rent, Security Deposit or moneys received by Owner from Tenant
or others in behalf of Tenant. All rent, additional rent and other charges payable by Tenant under this
Lease shall constitute rent for the purpose of applying the provisions of Section 502(b )(7) of the Federal
Bankruptcy Code.
(B) In the event an act of bankruptcy shall occur and this Lease is not terminated pursuant to
the provisions of paragraph (A), the parties agree that:
24
(i) If there shall be a default in the payment of Annual Minimum
Rent or any additional rent, or a default in the observance or performance of any
other provision of this Lease binding on Tenant, Owner shall be entitled to
immediately discontinue fumishing any utilities and other services it has been
providing to the Leased Premises, until such time as such defaults have been
fully cured, it being agreed that the foregoing action by Owner shall in no way
cause or result in any abatement of Annual Minimum Rent or any other charge
payable by Tenant during the continuance of the term of this Lease.
(ii) If the Lease is assumed by a trustee in bankruptcy, and assigned
by the trustee to a third party, then such party shall (a) execute and deliver to
Owner an agreement in recordable form whereby such party confirms that it has
assumed and agrees with Owner to discharge all obligations (including, without
limitation, the provisions of Article VI respecting the Permitted Use of the
Leased Premises and the manner of operation thereof) binding on Tenant under
this Lease, (b) represent and warrant in writing to Owner that such party has a
net worth and operating experience at least comparable to that possessed by
Tenant named herein and Guarantor as of the execution of this Lease, (c) deposit
with Owner a Security Deposit and advance rent equal to that initially deposited
by Tenant named herein, and (d) grant Owner, to secure the performance of such
party's obligations under this Lease, a security interest in such party's
merchandise, inventory, personal property, fixtures, furnishings, and all accounts
receivable (and in the proceeds of all of the foregoing) with respect to its
operations in the Leased Premises, and in connection therewith, such party shall
execute such security agreements, financing statements and other documents (the
forms of which are to be designated by Owner) as are necessary to perfect such
lien.
(iii) Lease shall be deemed a lease of "Nonresidential Real Property"
within a "Shopping Center" for the purpose of Section 365 of the Federal
Bankruptcy Code.
(C) Any person or entity to which this Lease is assigned pursuant to the provisions of the
Bankruptcy Code, 11 U.S.C. Section 101, et ~ (the "Bankruptcy Code") shall be deemed without
further act or deed to have assumed all of the obligations arising under this Lease on and after the date of
such assignment. If this Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, any and all monies or other considerations payable or otherwise to be delivered in
connection with such assignment shall be paid or delivered to Owner, shall be and remain the exclusive
property of Owner and shall not constitute property of Tenant or of the estate of Tenant within the
meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Owner's
property under the preceding sentence not paid or deli vered to Owner shall be held in trust for the benefit
of Owner and be promptly paid or delivered to Owner.
25
Section 18.03. Owner's Ril!ht to Cure Defaults.
If Tenant fails to perform any agreement or obligation on its part to be performed under this
Lease, Owner shall have the right (i) if no emergency exists, to perform the same after giving 15 days'
notice to Tenant; and (ii) in any emergency situation, to perform the same immediately without notice or
delay. For the purpose of rectifying Tenant's defaults as aforesaid, Owner shall have the right to enter
the Leased Premises. Tenant shall, on demand, reimburse Owner for the costs and expenses incurred by
Owner in rectifying Tenant's defaults as aforesaid, including reasonable attorneys' fees. Owner shall not
be liable or in any way responsible for any loss, inconvenience, annoyance, or damage resulting to
Tenant or anyone holding under Tenant for any action taken by Owner pursuant to this Section.
Section 18.04. Security Deoosit.
(A) Tenant, contemporaneously with the execution of this Lease, has deposited with Owner
the sum designated as the "Security Deposit" in A-I of the Basic Lease Provisions, receipt of which is
hereby acknowledged. The Security Deposit shall be held by Owner, without liability for interest, as
security for the faithful performance by Tenant of all of the terms, covenants and conditions of this Lease
by Tenant to be performed. Owner shall not be required to hold the Security Deposit as a separate fund,
but may commingle it with other funds. If after the execution of this Lease Agreement and Owner's
receipt of the Security Deposit, Tenant would fail to commence under the terms of this Lease Agreement,
Tenant shall forfeit the Security Deposit, which shall be retained by Owner, this Lease Agreement shall
terminate and all of the Owner and Tenants obligations hereunder shall become null and void.
B. If at any time during the term any Annual Minimum Rent, Annual Percentage Rent, or
additional rent payable by Tenant shall be overdue, or if Tenant fails to perfonn any of the other terms,
covenants or conditions to be performed by Tenant, then Owner, at its option, may appropriate and apply
all or any portion of the Security Deposit to the payment of any such overdue Annual Minimum Rent,
Annual Percentage Rent, or additional rent and to the compensation of Owner for loss or damage
sustained by Owner due to a breach by Tenant as aforesaid, without prejudice to Owner's other remedies.
Should all or any part of the Security deposit be appropriated and applied by Owner as provided above,
then Tenant shall, upon demand of Owner, forthwith remit to Owner a sufficient amount in cash to
restore the same to the original sum deposited. Should Tenant comply with all of the tenns, covenants
and conditions of this Lease binding on Tenant, the Security Deposit shall be returned in full to Tenant
within 60 days after the later of the following dates; (i) the date of expiration of the term or (ii) the date
Tenant shall deliver to Owner such inspection reports as Owner shall require setting forth that the Leased
Premises were surrendered in accordance with Section 11.02 of this Lease
ARTICLE XIX - ACCESS BY OWNER
Section 19.01. Ril!ht of Entrv.
Owner and its designees shall have the right to enter the Leased Premises during reasonable
business hours (except in the event of emergency, when Owner may enter at any time) for all lawful
purposes (including the right to show the Leased Premises to prospective purchasers of the Shopping
Center, and, during the last six months of the term, the right to show the Leased Premises to prospective
tenants) and to whateyer extent necessary or appropriate to enable Owner to exercise all of its rights
under this Lease (including without limitation the right to perform certain provisions of th.is Lease on
Tenant's behalf as set forth in Section 18.02) and to carry out all of Owner's obligations hereunder.
Owner and Owner's representatives sh.all also h.ave the right to enter the Leased Premises and to erect
scaffolding and barricades around the same (but not so as to preclude entry thereto) in order to make such.
repairs, alterations, improyements and additions to the building of which the Leased Premises form a part
and the foundarions and walls of the Leased Premises as Owner may deem necessary or desirable (and
26
Owner shall be allowed to take all equipment and material upon the Leased Premises which may be
required therefore), but Owner shall use reasonable efforts consistent with accepted construction practice
to minimize interference to Tenant's business caused by reason thereof. The exercise by Owner of its
rights of entry and other rights granted under this paragraph shall not constitute an eviction of Tenant and
the rent payable under this Lese shall not abate by reason thereof. Owner shall provide reasonable notice
to Tenant prior to such entry.
ARTICLE XX - ARBITRATION; RIGHT TO APPEAL
Section 20.01 - Arbitration.
Any disagreement between Owner and Tenant with respect to the interpretation or application of
this Lease, or the obligation of the parties hereunder, shall be determined by arbitration unless the parties
otherwise mutually agree in writing. Owner and Tenant shall agree upon one arbitrator, otherwise there
shall be three (3), one named in writing by the Owner and one named in writing by tbe Tenant within ten
(10) days after notice of arbitration is served by either upon the other, and a third arbitrator selected by
those two arbitrators within ten (10) days thereafter. No one shall serve as an arbitrator who is in any way
financially interested in this Lease or in the affairs of either party hereto. This agreement to arbitrate
shall be specifically enforceable under the prevailing arbitration laws. The arbitrator or arbitrators shall
have the power to award to either party to the dispute such sums, costs, expenses, and attorney's fees as
the arbitrator or arbitrators may deem proper. The award rendered by the arbitrator or arbitrators shall be
appealable to a court of competent jurisdiction within thirty (30) days of notice of the arbitrators' award.
Such appeal shall be prosecuted without delay and as rapidly as possible.
Section 20.02 - Waiver of Trial By Jurv.
THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING,
COUNTERCLAIM OR APPEAL BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY
MATTER. Tenant agrees that any action brought in connection with this Lease may be maintained in
any court of competent jurisdiction in the Commonwealth of Pennsylvania. Tenant hereby appoints
Owner as agent for the purpose of accepting service of any process, subject only to the condition that
Owner promptly send Notice of such process to Tenant at the address of Tenant set forth in A-I of the
Basic Lease Provisions. In case suit shall be brought because of the breach of any agreement or
obligation contained in this Lease on the part of Tenant or Owner to be kept or performed, and a breach
shall be established, the prevailing party shall (to the extent permitted by law) be entitled to recover all
expenses incurred therefore, including reasonable attorneys' fees. Owner's rights and remedies shall be
cumulative and may be exercised and enforced concurrently. Any right or remedy conferred upon Owner
under this Lease shall not be deemed to be exclusive of any other right or remedy Owner may have. All
rights and liabilities herein given to or imposed upon the respective parties hereto shall, except as may be
otherwise herein provided, extend to and bind the respective heirs, executors, administrators, successors
and assigns of the said parties; and if there shall be more than one Tenant, they shall all be bound jointly
and severally by the terms, covenants and agreements herein contained. This paragraph shall only
become effective in the event that there is an appeal of an arbitrators award.
ARTICLE XXI - OWNER'S LIABILITY
Section 21.01. Limitations on Liability
(A) Anything contained in this Lease to the contrary notwithstanding, Tenant agrees that
Tenant shall look solely to the fee simple interests or leasehold estate of the Owner in the Shopping
Center for the collection of any judgment (or other judicial process) requiring the payment of money by
Owner in the event of any default or breach by Owner with respect to any of the terms and provisions of
27
this Lease to be observed or performed by Owner, subject, however, to the prior rights of the holder of
any mortgage covering the Shopping Center, and NO OTHER ASSETS OF OWNER SHALL BE
SUBJECT TO LEVY. EXECUTION OR OTHER JUDICIAL PROCESS FOR THE SATISFACTION
OF TENANT'S CLAIM. AND OWNER SHALL NOT BE LIABLE FOR ANY SUCH DEFAULT OR
BREACH WPT TO THE EXTENT OF OWNER'S INTEREST IN THE SHOPPING CENTER.
(Tenant)
(B) Except where Owner has breached or failed to abide by its obligations set forth in this
Lease, Owner shall not be liable for any damage occasioned by failure of the Premises to be in repair, nor
for any damage done or occasioned by or from plumbing, gas, water, sprinkler, steam or other pipes or
sewerage, or the bursting, leaking or running of any tank, washstand, water closet or waste pipe in,
above, upon or about the Premises or improvements constituting a part thereof, nor for any damage
occasioned by water, snow or ice being upon or coming through the roof, skylights, trap door or
otherwise.
(C) In the event that in this Lease it is provided that the exercise of any right by Tenant or
the performance of any obligations of Tenant shall be subject to the consent or approval or Owner and
that the consent or approval of Owner shall not be unreasonably withheld or delayed. then in any case in
which Owner shall withhold or delay its consent, Tenant hereby waives any and all rights it may have to
recover (and Tenant shall not seek in any proceeding) any damages from Owner on account thereof; it
being agreed that Tenant's sole remedy for Owner's withholding or delaying of consent shall be
injunctive relief (without any right to damages).
(D) Notwithstanding anything to the contrary contained in this Lease, if Owner shall elect to
provide security service then (i) any security service that may be provided by Owner is intended solely
for the protection and benefit of the Common Facilities and not for the protection or benefit of the
Leased Premises or any other premises; and (ij) Owner shall not be liable in any manner whatsoever to
Tenant or to any third party by reason of Owner's act or failure to act in providing or maintaining
security in the Shopping Center.
Section 21.02. Owner's Obli!!ations With Resl'ect to Future Buildin!! Areas.
Notwithstanding anything set out in this Lease to the contrary, it is understood and agreed that (i)
Tenant will not cancel this Lease nor be entitled to claim any actual or constructive eviction because of a
default of Owner either by act or omission under this Lease when such act or omission relates to any
Future Building Area shown on Exhibit A, and Tenant will not abate rentals or otherwise credit or offset
damages against rental under this Lease because of any act or omission of Owner under this Lease which
relates to any Future Building Area shown on Exhibit A, but shall not be construed as a waiver of any
rights Tenant may have in person against or as a waiver of any remedies by way of injunctive relief
which Tenant may have against Owner (other than one who becomes such after the foreclosure of any
first mortgage covering any part of the real property which is contained within the Shopping Center, or
after the execution of a deed in lieu thereof); and (ii) the restrictions set out in this Lease, if any, to the
extent the same relate to any Future Building Area shown on Exhibit A, and all obligations of Owner
with respect to such restrictions shall absolutely and automatically terminate for all purposes from and
after the date the holder of any first mortgage affecting the real property which is contained within the
Shopping Center, forecloses its mortgage or obtains a deed in lieu thereof. For purposes of this Section,
an "Outlot" shall be considered the same as a Future Building Area.
ARTICLE XXII - HOLDING OVER
Section 22.01. Holdin!! Over.
28
In the event Tenant remains in possession of the Leased Premises after the expiration of the
tenancy created hereunder, and without the execution of a new lease, Tenant, at the option of Owner,
shall be deemed to be occupying the Leased Premises as a tenant from month-to-month, at a rate equal to
125% of the Annual Minimum Rent for the last Lease Year of the term, subject to all the other
conditions, provisions and obligations of this Lease insofar as the same are applicable to a month-to-
month tenancy.
Section 22.02. Time is of the Essence.
Time is of the essence of each provision of this Lease.
Tenant hereby waives notice to quit the Premises at the expiration of the term of this Lease or
any earlier termination, and this Lease shall constitute sufficient notice to quit without any obligation
upon Owner to provide Tenant with any additional notice thereof.
ARTICLE XXIII - WAIVER; NOTICE; DEFINITIONS; MISCELLANEOUS.
Section 23.01. Waiver.
No delay or omission in the exercise of any right or remedy of Owner on any default by Tenant
shall impair such a right or remedy or be construed as a waiver. No covenant, term or condition of this
Lease shall be deemed to have been waived unless such waiver be in writing signed by the party charged
therewith.
)(" Section 23.02. Force Maieure.
\
In the event either party hereto shall be delayed or hindered in or prevented from the
performance of any act required under this Lease by reason of strikes, lockouts, labor troubles, inability
to procure materials, failure of power, restrictive governmental law or regulations, riots, insurrection, war
or other reason of a like nature not the fault of the party delayed in performing work or doing acts
required under ttie terms of this Lease, then performance of any such act shall be extended for a period
equivalent to the period of such delay. The provisions of this Section shall not (a) operate to excuse
Tenant from prompt payment of Annual Minimum Rent or any other payment required by the terms of
this Lease, and (b) be applicable to delays resulting from the inability of a party to obtain financing or to
proceed with its obligations under this Lease because of a lack of funds.
Section 23.03. Notices and Pavments.
(A) Whenever any notice, consent, approval or authorization ("Notice") is required or
permitted under this Lease, the same shall be in writing and all oral notices, consents, approvals and
authorizations shall be of no effect. All Notices by Tenant to Owner shall be sent to Owner by registered
or certified mail (return receipt requested), postage prepaid, or by a nationally recognized overnight
courier service (Federal Express, AirBorne, UPS Next Day Air or similar) at the "Address of Owner"
designated in Section A-I of the Basic Lease Provisions, or to such other address(es) as Owner may later
designate in writing (including, without limitation, any notice which Tenant shall be required to give
Owner's mortgagee pursuant to Section 12.04). Until Owner is notified otherwise by Tenant, all Notices
by Owner to Tenant shall be deemed to have been duly given if sent by registered or certified mail
(return receipt requested), postage prepaid, or by a nationally recognized overnight courier service
(Federal Express, AirBorne, UPS Next Day Air or similar) to Tenant at the "Address of Tenant"
designated in Section A-I of the Basic Lease Provisions. In the case of notices sent by overnight courier,
delivery shall be deemed effective one day after such notice is sent. Until otherwise notified in writing
by Owner, Tenant shall pay all rent and other sums required to be paid hy it under this Lease by check
29
payable to the order of Owner and shall deliver the same, together with all sales reports required under
Article ill and all certificates of insurance required to be furnished by Tenant pursuant to Article X, to
the address of Owner designated in Section A-I of the Basic Lease Provisions.
(B) All Notices shall be effective upon being deposited in the United States mail in the
manner prescribed in paragraph (A) of this Section. However, the time period in which a response to any
such Notice must be given shall commence to run from the date of receipt by the addressee thereof as
shown on the return receipt of the Notice. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no Notice was given, shall be deemed to be receipt of the Notice as
of the date of such rejection, refusal or inability to deliver.
Section 23.04. Definitions.
(A) The term "calendar year" shall mean a period of 12 consecutive full calendar months,
commencing January 1 and ending December 31.
(B) The term "Guarantor" as used in this Lease shall be deemed to mean any person (and
their spouse, if any), partnership, corporation or other entity which has undertaken, by separate
instrument, endorsement on this Lease or in any other manner, to warrant, agree or guarantee that the
obligations of Tenant, or any portion thereof, shall be performed by Tenant.
(C) The term "Gross Leasable Area" shall mean the aggregate floor area within the exterior
faces of the exterior walls (except party walls as to which the center thereof, instead of the exterior faces
thereof, shall be used). Changes in Gross Leasable Area occurring during any calendar month shall be
effective on the first day of the next succeeding calendar month and, unless otherwise herein specified to
the contrary, the total number of square feet of Gross Leasable Area in effect for any calendar year shall
be the average of the number of square feet of Gross Leasable Area on the first day of each calendar
month in such calendar year.
(D) The term "includine:" as used in this Lease shall mean "including without limitation".
(E) The term "Interest Rate" shall mean a rate of interest, per annum, equal to the lessor of
(i) the highest lawful rate of interest that may be charged Tenant under the laws of the State in which the
Leased Premises is located or (ii) two percent (2%) in excess of the "Effective Rate" of Chase Manhattan
Bank. N.A., New York, New York (or its successor) (the "Bank") initially determined as of the date any
rent, additional rent or other payment under this Lease is due and for which interest at the mterest Rate is
charged and thereafter adjusted daily; PROVIDED, HOWEVER, if the Bank should cease to exist as a
viable commercial bank. then the "Effective Rate" of any commercial bank selected by Owner and having
capital and surplus of at least $50,000,000.00 shall be used to determine the Interest Rate. The tenn
"Effective Rate" shall mean the rate of interest announced by the Bank or other commercial bank selected
by Owner as aforesaid, as the case may be, as its prime lending rate. The Effective Rate shall be as
announced by the Bank notwithstanding that the Bank may actually charge other rates, and a written
statement from the Bank or any national investment brokerage firm or national bank as to what the
Effective Rate was on any given day shall be deemed conclusive.
(F) The term "Lease Year" shall mean a period of twelve consecutive full calendar months.
The first Lease Year shall begin on the date of commencement of the term if such date of commencement
shall occur on the first day of a calendar month; if not, then on the first day of the calendar month next
following such date of commencement. Each succeeding Lease Year shall commence upon the
anniversary date of the first Lease Year.
30
(G) The term "Mortgage" shall include a deed of trust. The term "mortgagee" shaH mean the
holder of a mortgage and beneficiary under a deed of trust.
(H) The term "Tenant's Percentage Share" shall mean the Tenant's proportionate share based
on the calculated percentage of Tenant's Gross Leasable Area as herein defined in relation to the total
gross leasable area of the shopping center.
(I) The word "Tenant" shaH mean each and every person or party mentioned as Tenant
herein, and if there shall be more than one Tenant, any Notice required or pennitted by the tenns of this
Lease may be given by or to anyone thereof and shall have the same force and effect as if given by or to
all thereof.
(1) The word "term" shaH mean the period from the date of the commencement of this Lease
to the expiration or sooner tennination thereof, including any extension thereof, all as herein provided.
Section 23.05. Miscellaneous.
(A) Recording of Lease. Neither party shall record this Lease in its entirety. However, upon
the request of either party, the other party shall join in the execution of a memorandum or so-called
"short form" of this Lease for the purpose of recordation.
(B) Obligations Surviving Termination. All obligations of Tenant and Owner which by their
nature involve performance, in any particular, after the end of the term, or which cannot be ascertained to
have been fully performed until after the end of the term, shall survive the expiration or sooner
termination of the term.
(C) Governing Law and Jurisdiction. The laws of the Commonwealth of Pennsylvania shall
govern the validity, performance and enforcement of this Lease.
(D) No Accord And Satisfaction. No payment by Tenant or receipt by Owner of a lesser
amount than the monthly rent and other charges, nor shall any endorsement or statement on any check or
on any letter accompanying any check be deemed an accord and satisfaction.
(E) Alterations And Amendments. Except as herein otherwise expressly provided, no
subsequent alteration, amendment, change or addition to this Lease, nor any surrender of the term, shall
be binding upon Owner or Tenant unless reduced to writing and signed by them.
(F) No Partnership. Owner does not in any way or for any purpose become a partner of
Tenant in the conduct of its business or otherwise, nor a joint venturer or a member of a joint enterprise
with Tenant.
(G) Withholding Consent. Wherever in this Lease a party's consent or approval is required,
such approval may be withheld arbitrarily unless otherwise herein specifically provided to the contrary.
(H) Cal'tions; Article Numbers. The captions, section numbers, article numbers and index
appearing in this Lease in no way define, limit, construe or describe the scope or intent of such sections
or anicles of this Lease. The language in all parts of this Lease shall in all cases be construed as a whole
according to its fair meaning, and not strictly for not against either Owner or Tenant, and should a court
be caHed upon to interpret any provision hereof, no weight shall be given to, nor shall any construction or
interpretation be influenced by, any presumption of preparation of a lease by Owner or by Tenant.
31
(D Guaranty. At the time of executing this Lease, Tenant shall provided to Owner a signed
Guaranty of Lease including the signature of the spouse, if any, in fonn and substance as set forth in
Exhibit D hereto. Each Guarantor shall provide Owner with an annual financial statement upon request.
(J) Severabilitv. In the event that one or more provisions of this Lease shall be found to be
unenforceable at law or in equity, the remainder of the Lease shall not be affected and shall remain in full
force and effect.
(K) Successors and Assilms. This Lease shall be binding upon and shall inure to the benefit
of the parties hereto and their respective legal representative, heirs, successors and assigns.
(L) Tenant's Corporate Authority. If Tenant is a corporation, it shall, concurrently with the
signing of this Lease, furnish to Owner certified copies of the resolutions of its Board of Directors (or of
the executive committee of its Board of Directors) authorizing Tenant to enter into this Lease; and it shall
furnish to Owner proof that Tenant is a duly organized corporation under the laws of the state of its
incorporation, is qualified to do business in the Pennsylvania, is in good standing under the laws of
Pennsylvania, and has the power and authority to enter into this Lease, and that all corporate action
requisites to authorize Tenant to enter into this lease has been duly taken.
(M) Brokers. Except as set forth below, Tenant represents and warrants that it has not dealt
with any broker in respect to this Lease, and agrees to defend, indemnify and save Owner harmless
against all demands, claims and liabilities arising out of any dealings between Tenant and any other
broker in respect to this Lease: Rothman, Schubert & Reed Realtors
TIDS LEASE CONSTITUTES THE ENTIRE AGREEMENT
TIDS LEASE AND THE EXHIBITS AND RIDER, IF ANY, ATTACHED HERETO, IS THE
COMPLETE AGREEMENT BETWEEN OWNER AND TENANT CONCERNING THE LEASED
PREMISES AND THE SHOPPING CENTER. THERE ARE NO ORAL AGREEMENTS,
UNDERSTANDINGS, PROMISES OR REPRESENTATIONS BETWEEN OWNER AND TENANT
AFFECTING THIS LEASE. ALL PRIOR NEGOTIATIONS AND UNDERSTANDINGS, IF ANY,
BETWEEN THE PARTIES HERETO WITH RESPECT TO THE LEASED PREMISES AND THE
SHOPPING CENTER SHALL BE OF NO FORCE OR EFFECT AND SHALL NOT BE USED TO
INTERPRET TIDS LEASE.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first-above
written.
WITNESS:
OWNER:
Rothman, Schubert & Reed, a Pennsylvania
General ~ership _ ~
By: ~cfa A...o1 (SEAL)
Samuel L. Reed, Attorney-in-Fact pursuant to Power of
Attorney dated August 21, 1996, and recorded in Misc.
Book 528, Page 480.
-aP ~~DU<--
. \l~Li
;, .
-~\t,--,\<,~
J
I--'
'l'--
ATTEST:
By:
(SEAL)
32
EXHIBIT B
OWNER'S WORK
Executed with Lease dated f\ ,-N '6 . 2004, between William F. Rothman,
Charles F. Schubert & Samuel L. Reed, Co-Partners, t/d/b/a Rothman, Schubert & Reed, a Pennsylvania
General Partnership, as Owner and Massimo Napoli. Inc., as Tenant.
Owner agrees, at its expense, to deliver the Leased Premises to Tenant with the following work
set forth below. Owner has not agreed to perform any other work in the premises, and all other work
necessary to complete the Leased Premises shall be done at Tenant's sole cost and expense.
Owner shall provided Tenant with a "pure vanilla box" which shall include the following
work/construction to the Leased Premises:
I. Four (4) walls, y," dry-walled and primed.
2. 2x4 grid ceiling with fluorescent lighting through out.
3. HV AC--heated and cooled with roof top units, gas fIred heat, and electric cooling.
Cooling based on one (I) ton per 400 square feet, turned over in good working order.
4. Two (2) bathrooms with standard plumbing in compliance with ADA in currently
existing rough-in locations.
5. One (1) hot water heater for bathrooms only.
6. 200 amp electrical service with miscellaneous receptacles through out as required by
Code.
7. Concrete flooring. 4" thick, 3000 psi.
8. Glass front, all windows and maintenance doors to be aluminum as manufactured by
Kawaneer or equivalent.
9. Water, sewer and gas to be supplied at rear of property.
10. Demising wall.
Tenant shall be responsible for build-out, floor covering, additional plumbing and additional hot water
heater to service the Leased Premises and such other work necessary to complete the Leased Premises all
at Tenant's sole cost and expense and not without Owner's approvaL
33
EXHIBIT C
RULES AND REGULA nONS
Tenant shall at all times during the term of the Lease:
1. Observe all traffic regulations, including posted speed restrictions and warnings and stop signs.
Owner shall have the right of enforcing these regulations and of prohibiting use of access streets, service driveways
and parking areas to violators.
2. Not permit smoking in the Leased Premises.
3. Use, maintain and occupy the Leased Premises in a careful, safe, proper and lawful manner, keep
the Leased Premises and its appurtenances, including adjoining areas and sidewalks, in a clean and safe condition.
4. Keep the sidewalks and areas contiguous to the Leased Premises free of ice, snow and litter.
5. Keep all glass in the doors and windows of the Leased Premises clean.
6. Not, without prior written consent of the Owner, place. maintain or sell any merchandise in any
vestibule or entry to the Leased Premises. on the sidewalks adjacent to the premises. or elsewhere on the outside of
the Leased Premises.
7. Keep the Leased Premises clean, orderly and in sanitary condition, free of insects, rodents, vermin
and other pests, and if by reason of any infestation of the Leased Premises by insects, rodents, vermin or other pests,
any other store in the Shopping Center becomes infested by any such condition, Tenant shall be responsible for
exterminating any such condition in other infested stores.
8. Not permit undue accumulations of garbage, trash, rubbish and other refuse in or around the
Leased Premises, keep refuse in closed containers within the interior of the premises or a designated dumpster until
removed, and arrange for regular removal of refuse at its expense.
9. Not use. permit or suffer the use of any apparatus or instruments for musical or other sound
reproduction or transmission in such manner that the sound emanating therefrom or caused thereby shall be audible
beyond the interior of the Leased Premises.
10. Not load or unload fixtures or merchandise from any premises entrance except the rear delivery
entrance.
11. Not deliver or suffer or permit delivery of merchandise to, or collection of refuse from, the Leased
Premises after 11:00 a.m. on any day.
12. Light the show windows and exterior signs of the premises to the extent that Owner may from time
to time require.
13. Keep all mechanical apparatus free of vibration and noise. which may be transmitted beyond the
confines of the Leased Premises.
14. Not cause or permit objectionable odors to emanate or be dispelIed from the premises.
15. Not overload the floors or electrical wiring and not install any additional electrical wiring or
plumbing without Owner's prior written consent.
16. Not use show windows in the Leased Premises for any purpose other than display of merchandise
for sale in a neat and attractive manner.
34
17. Not conduct, permit or suffer any public or private auction sale to be conducted on or from the
Leased Premises.
18. Not solicit business in the common areas of the Shopping center or distribute hand bills or other
advertising materials in the common areas, and if this provision is violated Tenant shall pay Owner the cost of
collecting same from the common areas for trash disposal.
19. Automobiles belonging to Tenant. its employees and invitees, shall be parked only in the areas that
may be designated by Owner, subject to the provisions of this Lease.
20. Doors in the Leased Premises shall not be covered or obstructed by Tenant.
21. Water closets and other plumbing shall be used for no other purpose than those for which they
were intended and no sweepings, rubbish, rags, or improper articles and materials shall be thrown therein. It is
recognized by the parties that chemicals, paints and thinners are especially injurious to the functioning of the
property's sewage disposal system and, without limitation, shall not be disposed of in such sewage system.
22. No signs, advertisements or notices of any kind shall be painted or affixed to any part of the
outside of the Leased Premises without the prior written permission of Owner.
23.
Premises.
No person of disorderly character will be allowed to frequent or remain on or about the Leased
24. No nuisance, public or private, shall be created or permitted in the demised premises and the
Leased Premises shall be conducted so as that no annoyance is caused to Owner, Owner's employees or other tenants
of the Owner. It is recognized that the Leased Premises are part of a Shopping Center in which numerous tenants are
located and that absolute supervision of the use of the Leased Premises is necessary in order to officially maintain
and operate an entire Shopping Center, and the parties therefore agree that the Owner shall have the exclusive and
sole right of determining as to what constitutes a nuisances and that its determination shall be binding and absolute.
25. Upon termination of the Lease, doors and windows of the building shall be left securely fastened
and the keys to the leased premises shall be delivered to the Owner.
26. Tenant's fire fighting and prevention apparatus shall be adequate and sufficient and shall be kept in
proper working condition and accessible at all times so as to conform to all applicable laws, ordinances and
regulations. J I 11
IN WITNESS WHEREOF, the parties set forth theirs hands this -i- day of {V~'l' ~"\
2004.
WITNESS:
OWNER:
Rothman, Schubert & Reed, a Pennsylvania
Gene:&:::;
By: cf tZ " c~ (SEAL)
Samuel L. Reed, Attorney-in-Fact pursuant to Power
of Attorney dated August 2 I, 1996, and recorded in
Misc. Book 528, Page 480.
--~Q~c;vU~
v
By:
(SEAL)
ATTEST:
---
!'....j"l\,,!i,,<~,
.::;.\C~'-' _,V'-'J
"'J
35
EXHIBIT 0
GUARANTY OF LEASE
In consideration of the making of the above Lease dated rIll\] i$ , 2004,
by the Tenant with the Owner at the request of the undersigned, and in reliance of the Guaranty, the
undersigned hereby unconditionally and irrevocably guarantees the payment of the rent to be paid by the
Tenant and the performance by the Tenant of all the tenus, conditions, covenants and agreements of the
Lease and its Exhibits, and the undersigned promises to pay all of the Owner's expenses, including
reasonable attorney's fees, incurred by the Owner in enforcing this Guaranty. The Owner's consent to
any assignment or assignments, and successive assignments by the Tenant and Tenant's assigns, of this
Lease, made either with or without notice to the undersigned, Or a changed or different use of the Leased
Premises, or Owner's forbearance delay, extensions of time or any other reason whether similar to or
different from the foregoing, shall in no way or manner release the undersigned from liability as
Guarantor. Where the undersigned include more than one party, the obligation of each such party
hereunder will be joint and several. It will not be necessary for Owner to proceed first against Tenant in
invoking any of Owner's lease remedies before proceeding to enforce this Guaranty of Lease.
WITNESS the hand and seal of the undersigned at the date of the above Lease.
--". i
\. , I
"._ \\LLl0L'-\ ~Q)~
U ~
WITNESS:
36
~
REAGER & ADLER PC
l:/04/2004 15:0S
717'313'34'33'3
I
\;\
--..~~
~ :-~.----
_ ---=:e...
.~-~~
.
~
.
"\I
\~
ii'
\
\~ \ i!~\U\\~~
11 , l\lIi1!\'
'1.I!Il\l\iI'll
.,:......,,,' \
\I'~ ~"'J i '
. ,
I I
1
I
I
\\\111
il\l i
_,Ut
\11I'
nl
Ii
au
II
1\
1 U , \~
~ n ,\~\~
i I "lit
\:'11~
111.~ J
~l\ v. \Ii I
tj\, \ , \ ~
\I 1 ~
t ..
..'
\~
~
iI \\~\Il~! \l~1
il \' 11\ .
1'1 If '.
(\ \il \'1 ~'
ann
'Iill'l,'
"'11\
Ill'
li,!\ \
'\11
lill
EXHIBIT A. /{'tJ
1:/84/2804 15:05
7173034333
REAGER & ADLER PC
PAGE 03
RS&R SHOPPING CENTER -OVERALL
A1Ilhal certain tract orland situate ill ~ Penntboro Township, Cumberland County,
PeMsylVlllia, more partkularly bounded lUId described u follows:
BEGINNING al a point <<.long lhe nort~ riglll of way line of Pennsylvania R.oule 944,
<<.110 known as WefU:Villo R~ and on the line of ~joi"cr between lols no,. J and 3 on
the hereinafter mentioned Plan ofLoI;
lhatce, a101lS wd line of adjoillel' by a CIINC 10 the lel\ ....;lh a radiu, of 10.00' and an an:
lC1lgth 0(15.71' to a paint~ ,
thalce, continuins along,.id line ofadjoincrN 17"n'J3'W, I distMce of ISS,5S'l0 a
poinl;
t/1alc.e., eolltlnuill8 &IonS &aid line ofadjoiller S 12027'27" W, . distance: of241.55' to I
poitrt on the c:dIterline of an CIlOit;.,g 20' .,mill)' ~er easement
thence, oontinuins along uid centerline the following COUlUS and dlstanccs;
N 27"20'00" W, . diltll\co of 138.95' to a point; ,
N 17"15'30" W, a dittllle4 or263.28' to. point:
N 4.10'00" E, a distlllU of 130.24' to. point;
N 4.20')0" E. a dilt&l1CC of \23.12' to a point;
N--13.3&'~. diltance-of2S9S1' Io-a point:
N OO'SI'E.. diltlnccofJ4!.\<4' to a point 011 thcdinc ofa6joinerbetwcen Lot NO.3 and
lands now or formerly (nit) pf Jacob R. RenniIl8cr:
thence. alons wd Jill\! ofadjoiner N ~59'42" E, a distante ort02.70' to a point on the
line or adjoincr bttwcen Lot No.3 and land. fIIf ofllobert B~
thence. along ~d line of lIdjoiner and along lands nlrofMargaret and Jacob Ulrick S
22024'4'1" E. . diJtance of2oo.1 J' 10 an iron pi!\;
Iheneo, N 8100S'07" E, adlAUll.c;eof298.94'IO a point;
them;.o. S :nos \'00" E, . di,tance of217.0S' to. point;
lhcnc:e, alona u.id lands nlfof Conaervatlve Ilartilll Churdt S 11024'00" W, a distance of
125.44' to an iron pin;
thence, along &aid line ofadjoiner S :n-s 1 'OS" E, a diatlllce of349.9S' to an iron pin;
thence, aIon& said line ofadjoinerN 81024' E a distance \'If 123,44' to III Iron pin on tbe
\WStern end ort.inden Street; ,
thence, donalllid western end orLirodm Sueet S 16015'0" E, a distance or 41.34 , to an
Iron pin on landa nlf ofHden B. Hdsey;
t~ Ilona said lands S 22-5)'35" E. d1.tlll'lee ortS2.38' to an Iron pinu!atl(b l1Ifof
Dnnatd E. Shul1;
tbcnc:e.. alolI& said lands nit or Shutt and land. nlf of Robert Bretz S 7)0<<'35" W .
diltance orJ79.42' to an Iron pin;
thence, along lIlid lAnd. ofBrdz SI7"3S'3S" E. d1stal1cc oflU.OJ' to a poinl on the
nonhern line or Lot No.2;
ExnmIT "'A.I"
'W\f
::/04/2004 15:05
717'30'34'33'3
REAGER & ADLER PC
PAGE 04
.'
thence. S 72"'17'2T" W . distamc of \99 .SO' 10 . point;
thenee, S \"')2'33" E. di~ of208.00' to. point:
thence, by. eurvc 10 lite left having a ndius of 10' (or an arc dist~c.c of 15.7" 10 . roint
an thellOrthc:m line ofPennaylvanil Route 944, known a., Werlzvllle Road~
thence. S 72"27'27'" W . disUnee of79.().4' to a point the place ofIJEOlNNlNO.
Containid8; 579,784~. n.
(13.J \ Screll)
BEING 1..01 No. J
WERTZVILLE ROAD R1W CONVEYANCE
All that certain tract orland aituate in East POItII&bot'o Township, Cumberland County,
PenJlI)'lvlllia, more partia.alarly bounded and described IS follows;
BEGINNING al a paml along the exlsting northern rlBltt of wa.y Unc orpcM~y(vania
Route 944, also known u Wcrtzville Road, aaid point being located atlhe southeastern
eorno::t of IlJlds now or fotlllcrly orErie Shore E.nterprise" Ine. thenc.c along said lands by
. curvo to the lell having. radius of 10.00 and an arc length ort 5.71' to. poinl; thence,
by same N ] 7"32')3" W a diltance of 5.14' to a point on the required nortllern right-of.
way line ofWert:Ml1e Road; tha\ce, by wd right-of-way line N 72"26' \ r E. disWtec of
59.04' 10 & point al land, now or formerly orUni-Matts, Tne.; thence, along land. orUni.
Maru, IllC. S 17.)2'))" E adlat.anc.e of 5,16' 10. point; thence, by same by a curvo to the
left baYing. radius of 10.00, and.n arc length or IS.71' \0 a pOint on the nortbernrighl-
or.way Iinc ofWertzvinc lloed; tbence, by said right-or-way line S 12<>27'27" W a
distance of 79.(>>' to & point, the p~ce orBEOINNING.
Containing: 938 "'1, fl.
(0.02 a~)
CONVEYANCE TO RS &R
AU eM! ~n IUct: orland altuatc in Eat PCMIbora Township, Cumberland County,
Pennsylv.ns.. moce partte.mrly bounded U1d described u Ibllowa:
BEGINNING .1 a point on the eastern righr-<lr-way of Salt Road RoaIiJlMlcnl, Mid point
bcins on tbe ct1Ileriine of an existing 20' sanitary IeWtf easement; thence, 110"1 said
sewer ccnt~ine N 17"'S')0" WI diJtance of70.96'lo a point; theM.e. by same N
04.'0'OO~ E. di!tance of 130.:24' to a point; tlu:llce, along lands now or ronncr/y orWcst
Shore rll'St Assembly ofGocl S 67"54'41" W I distamc of 116.45' to I point on the
eutem rlght-Or-WIY line of Salt R04d Rea\lgnmcnt; thenee, a1on. said risllt-or.way line S
~
., '"
.' I,
1:/04/2004 15:05
PAGE 05
71 7505453'3
REAGER & ADLER PC
22605'19" E I diltancc of 113.65' 10 I point~ thence, by same: N 6"S4'.4\" ~,distanc:ll
of 5.00' 10 I point; thalcc, by ~ S 22-05'19" Ii I distllllCC of II 3.65' to I point;
thence, by _N 67'"S4'41~ E .diatanee Of47..6',0. point, the placeofOEGINNlNG.
Containing: 13,618 sq. ft.
(0.31 aerea)
'\AN
1:/04/2004 15:05
717'309493'3
REAGER & ADLER PC
PAGE 05
EXHIBIT E
,
SAMPLE ~NU
INSALATE
mTlP.<STO AU. '1TI-UAN'"
W$.Al.A1'''' CBSARB
lN8......T... OIPOlLO
fN'S.4LA.TA O~ CAS4
lNBAL.A 7'..... CAMtES!!
ANTIPASTI
ANTIP.\STO Pllr.l..'. CASA
.....MIIEIU II ~I PfllTI'l
v.-.MJ~JlCAlAMAJ\1 Ml;r...'l'l
SRU5C1O!1'1'A t.l. /'OIdOI:lOkO
MAZZARel-LII JlIUTTS
PROSCtU'T'l'O B MRt..OIo/U
P Al'iINl
'..."DlO CON 1'OmO
,ANlNO eON PRD.CllITTO
PhNINO AlJ:rrAUANA
PANlNO CON POt.l.O ^,-I..A. 0RKl1.lA
P ANINO CON CAI.Nli
""NINO VIl0BTALB
PIZZE1'TE
I'IZZAMMOIl'llIln'...
Pll.zA N.APOt.IlT "NA
,=^ Qtl..'I"nlO STAG.IONI
,lUAOlA"OLA
~ lllANCA
PIZZ",,\A,J It(J2ro((]JI(I
f'IZZA V~~T...UI
PlUM! PIA Tn
1V.'V10U'COII p~ BI'ROACIU'T'l'OCO'M'O
RIS01'TO ,oJ fUNQffi
RISOTTO AU.A Pll8CATOIU
GNoc:<:>Il ~ 1lOI.tXll<Ul!
rhST.. CON PO/'''''''''_O 1'JtIl3C0
"IOATONI~
PllTl'IJCClJ>/T l'UIT.4N&IC:A
I'llNNi CmI POl.LO II rAN>lA
915=... Al FeP.1U
!'E.'Cal>llI.O~ArJlllIUl1
DOLCI
tlUIlEKTS WllX. <::IWlCI1I ....UK.l. Y
BEVANDE
CAPI't1CC!>IO
!lllPfU!lSO CAPVIlLATTR
ACQUA MI>W<ALIl
MA.'NCIATA
UMOIolA ~^ CI1INO'M'O
BI!llT& GASJAn:
Date;// - ~ '1. tJ V
as received assess ion to
Possession Date
//-o9-a'l
Code
11- 7+8
J'5l./
East Penn Dr.
I Enola, PA 17025
By signing this letter you agree on the following:
Occupancy Date
//-o9-a'l
1- (j 9 - ~S
Rent Commencement
Initial Monthly Base Rent Amount
Initial Monthly Additional Rent
3dKtJ .()o
l1.3.:J~D, 00
Security Deposit
Pre-Paid Rent Amount
Partial Rent Payment Due
$1' ..3,;{ 80 ,0 0
.;;J.~(f1.0S -r Sfc3. 7~ CAU1-f4)ce-J ,.~s
Next Full rent Payment
Date of Base Rent Increases
1- CJ'1 - , 0 + I - ~9. /6 - /- 0 c, - ;;. 0
/-f)'-/I
(c;1,) F/VE \/ ~ .
I
Lease Termination Date
Options
Please review and sign letter of acknowledgment and agreement. It is our policy that we
do not release key until this worksheet is returned. By returning it immediately to my
attention (by fax (717) 763-1656) you will avoid delay in receiving your key and help us
facilitate our accounting process. If you have any questions regarding the above. please
contact me at (717) 763-1212.
Thank vau
~~M.
Landord Name: Rothman. Schubert & Reed
~
R,I / f11
'v< P' .
Print: HA5) 1~10 NA PQ,
SSN#: ZOb' -1-8 -5:194-
Drivers LiC#fL /40 -~~4r. _ +'( -050-Q
Rothman, Schubert & Reed
3 Lemoyne Drive. Suite 100. Lemoyne PA. 17043-717-763-12]2 - fax (717) 763-1656
l: (.:J ~
'1
.Vi
...... ~ ~ "',
g (') c:...~, C)
C. <"":':':1 "
~
~ ~ '--1
~ ~,-- ~-:-
r+"
- . "
r5' I --'J
\.0
1? C)
~~
r,)l
r"
REAGER & ADLER, PC
Theodore A. Adler, Esquire
Attorney J.D. No. 16267
John H. Pietrzak, Esquire
Attorney J.D. No. 79538
2331 Market Street
Camp Hill, P A 17011
Telephone: (717) 763-1383
Attorneys for Defendant, Rothman, Schubert & Reed
MASSIMO TRATTORIA, INC.
a Pennsylvania Corporation and
MASSIMO NAPOLI, individually,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
Plaintiffs
v.
CNIL TERM No. 05-2395
WILLIAM F. ROTHMAN, CHARLES F.
SCHUBERT AND SAMUEL L. REED,
co-partners t/d/b/a ROTHMAN, SCHUBERT
& REED, a Pennsylvania General Partnership,
Defendants
NOTICE TO PLEAD
To: Kathleen V. Yurchak, Esquire
Goodall & Yurchak, P.C.
328 South Atherton Street
State College, P A 16801
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED DEFENDANT, ROTHMAN, SCHUBERT & REED'S
PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE
HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU.
Date: June 9, 2005
Respectfully SUb, itt,et
REAGER AD Ej .c.! I '., /'
I' I ~
i
Theodore . Ad1 , Esquire
REAGER & ADLER, PC
Theodore A. Adler, Esquire
Attorney I.D. No. 16267
John H. Pietrzak, Esquire
Attorney I.D. No. 79538
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Attorneys for Defendant, Rothman, Schubert & Reed
MASSIMO TRATTORIA, INC.
a Pennsylvania Corporation and
MASSIMO NAPOLI, individually,
: IN THE COURT OF COMM<DN PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
Plaintiffs
v.
CIVIL TERM No. 05-2395
WILLIAM F. ROTHMAN, CHARLES F.
SCHUBERT AND SAMUEL L. REED,
co-partners t/d/b/a ROTHMAN, SCHUBERT
& REED, a Pennsylvania General Partnership,
Defendants
ROTHMAN SCHUBERT & REED'S PRELIMINARY OBJECTIO S
TO COMPLAINT FILED BY MASSIMO TRATTORIA INC. AND MASSIM NAPOLI
Rothman, Schubert & Reed ("RSR") by and through its undersigned counsel Reager &
Adler, P.c., hereby files the following Preliminary Objections to the Complaint filed by
Massimo Trattoria, Inc. and Massimo Napoli ("Massimo") in the above-captioned action, and in
support thereof avers as follows:
1. RSR is a Pennsylvania General Partnership, with a business address of 3
Lemoyne Drive, Suite 100, Lemoyne, PA 17043.
2. RSR is the owner of the property located at 385 East Penn Drive, Enol~, PA
17025, known as the Pennsboro Commons Shopping Center.
3. Massimo Trattoria, Inc. is a Pennsylvania Corporation with a mailing! address of
2248 Saw Palmetto Lane, Building 7, Apt. 117, Orlando, Florida 32825.
4. Massimo Napoli is an individual with a mailing address of2248 Saw Palmetto
Lane, Building 7, Apt. 117, Orlando, Florida 32825.
5. On November 8, 2004, RSR and Massimo entered into a lease agreement
("Lease") for a commercial space located at 385 East Penn Drive, Enola, P A 17025, identified as
Block H, Unit 7 and 8. A copy of the lease agreement is attached as Exhibit "A".
6. On May 9, 2005, Massimo filed a Complaint with the Cumberland County
Prothonotary, alleging three counts, including Breach of Contract, Rescission and
FraudlMisrepresentation. A copy of the Complaint is attached hereto as Exhibit "B" without
admitting any of the allegations contained therein.
7. Pursuant to Pa.R.C.P. 1028(a), RSR hereby files the following preliminary
objections to the Complaint filed by Massimo.
First Preliminary Objection
Pa.R.C.P. l028(a)(6) - Agreement for Alternative Dispute Resolution
8. The written lease between the parties, a copy of which is attached hereto and
incorporated herein by reference, contains at Section 20.02 a clear Alternative Dispute
Resolution provision, which states in pertinent part:
"Any disagreement between Owner and Tenant with respect to
the interpretation or application of this Lease, or the obligatioI1l of
the parties hereunder, shall be determined by arbitration unless
the parties otherwise mutually agree in writing. . . This agreeIlllent
to arbitrate shall be specifically enforceable under the prevailing
arbitration laws."
9. The parties have not made any other agreements regarding the procedpre for
resolving disputes.
10. The Courts in Pennsylvania have consistently held that contractual ptpvisions
requiring disputes to be submitted to arbitration are binding and preclude a party from pursuing
its claim in a court oflaw. DiLucent Corp. v. Pennsylvania Roofing Co., Inc., 655 A.2d 1035
(Pa. Super. 1995).
11. Because the written contract between the parties contains an Alternative Dispute
Resolution provision requiring arbitration, the Plaintiffs' Complaint must be dismissed.
WHEREFORE, Defendant Rothman, Schubert & Reed respectfully requests this
Honorable Court to dismiss Plaintiffs' Complaint with prejudice.
Second Preliminary Objection
Pa.R.c.P. 1028(a)(3) - Insufficient Specificity in Count One
12. In Count One of its Complaint, Massimo avers at Paragraph 27 that RlSR breached
the lease agreement by "failing to provide a Leased Premises which was sufficient for its
permitted use." (emphasis added).
13. At Paragraph 11 of its Complaint, incorporated by reference into Count One,
Massimo avers that "At the time the Lease was signed, RSR knew or should have kniown that the
current heating and cooling units in location on the Leased Premises were not sufficient to allow
operation, under the applicable building code requirements, of a dine in restaurant[. ]" (emphasis
added).
14. At Paragraph 19 of its Complaint, incorporated by reference into Count One,
Massimo avers that "In December 2004, the East Pennsboro Township Building Inspector-
Codes Enforcement Officer notified Plaintiffs that it could not provide an occupancy permit
and/or was issuing a stop work order because, among other things, the HVAC equip",:ent was not
acceptable to handle the air requirements for the assembly occupancy load." (emph4sis added).
15. Pennsylvania Rule of Civil Procedure 1019(a) requires Massimo to state the
material facts upon which its claim is based. The Complaint must contain specific material facts
that apprise the defendant of the nature and extent of the plaintiffs claim so that the defendant
has notice of what the plaintiff intends to prove at trial and may prepare a defense. Weiss v.
Equibank, 460 A.2d 271 CPa. Super. 1983)
16. Paragraphs 11, 19 and 27 of Massimo's Complaint fail to plead material facts
with sufficient specificity to allow RSR to either admit or deny the allegations or to II>repare a
defense.
17. Massimo's reference in Paragraph 11 to "applicable building code requirements"
fails to adequately plead any material facts.
18. Massimo's general allegations in Paragraphs 11 and 19, that the HV AC system
was "not sufficient" and "not acceptable" fail to inform RSR of the nature and extent of its claim
and fail to adequately plead any material facts. In addition, with regard to Paragrap1l19,
Massimo has not identified the name of the inspector, the specific date on which thelinspection
took place or provided a copy of the inspection report.
19. Massimo's allegation in Paragraph 27, that RSR breached the lease agreement by
failing to provide a Leased Premises which was "sufficient for its permitted use" faHs to
adequately plead any material facts.
20. Nowhere in Massimo's Complaint does it define these terms or provitle any
further description of what is meant.
WHEREFORE, Defendant, Rothman, Schubert & Reed respectfully requests this
Honorable Court to dismiss Count One of the Plaintiffs' Complaint with prejudice, Of to Order
the Plaintiffs to file a more specific Complaint with regard to Count One.
Third Preliminary Objection
l028(a)(3) - Insufficient Specificity in Count Two
21. In Count Two of its Complaint, Massimo avers at Paragraph 31 that "the state of
the HV A C was essential for the operation and opening of the business." (emphasis added).
22. At Paragraph 32 of its Complaint, Massimo avers, in pertinent part, that "At the
time of the signing of the lease, Defendant's knew or should have known that the HVAC system
was not sufficient to support the determining motive for the Leased Premises." (Emphasis
added).
23. At Paragraph 33 of its Complaint, Massimo avers that "The Plaintiffsidid not and
should not have known about the state of the HVAC system." (emphasis added).
24. The general allegations of the sufficiency or state of the HV AC system fail to
comply with the requirement ofPa.R.C.P. 1019(a) that a pleading contain "material facts."
25. Pennsylvania Rule of Civil Procedure 1019(a) requires Massimo to state the
material facts upon which its claim is based. The Complaint must contain specific material facts
that apprise the defendant of the nature and extent of the plaintiffs claim so that the <,lefendant
has notice of what the plaintiff intends to prove at trial and may prepare a defense. Weiss v.
Equibank, 460 A.2d 271 (Pa. Super. 1983)
26. Paragraphs 31, 32 and 33 of Massimo's Complaint fail to plead mateqal facts
with sufficient specificity to allow RSR to either admit or deny the allegations or to prepare a
defense.
27. Massimo's general allegations in Paragraphs 31 and 33, regarding the "state of the
HV AC system" fail to plead any material facts. RSR cannot determine what is meanit by the
"state of the HV AC system.
28. Massimo's general allegation in Paragraph 32 that the HV AC system was "not
sufficient" fails to inform RSR of the nature and extent of its claim and fails to adeqlllately plead
any material facts.
29. Nowhere in Massimo's Complaint does it define these terms or provide any
further description of what is meant.
WHEREFORE, Defendant, Rothman, Schubert & Reed respectfully requests this
Honorable Court to dismiss Count Two of the Plaintiffs' Complaint with prejudice, or to Order
the Plaintiffs to file a more specific Complaint with regard to Count Two.
Fourth Preliminary Objection
l028(a)(3) - Insufficient Specificity in Count Three
30. In Count Three of its Complaint, Massimo requests rescission of the lease
agreement due to alleged fraud/misrepresentation on the part of Defendant, RSR.
31. At Paragraph 12 of its Complaint, incorporated by reference into Count Three,
Massimo avers that "RSR failed to advise Plaintiffs that the current heating and cooling units
were not sufficient." (emphasis added).
32. At Paragraph 37 of its Complaint, Massimo avers that "Defendants through the
oral and written statements in the Lease, represented that the facility was sufficient for its
intended use." (emphasis added).
33. These general allegations of sufficiency fail to comply with the requinement of
Pa.R.C.P. 1019(a) that a pleading contain "material facts."
34. Pennsylvania Rule of Civil Procedure 1019(a) requires Massimo to state the
material facts upon which its claim is based. The Complaint must contain specific material facts
that apprise the defendant of the nature and extent of the plaintiffs claim so that the defendant
I
has notice of what the plaintiff intends to prove at trial and may prepare a defense. Weiss v.
Equibank, 460 A.2d 271 (Pa. Super. 1983)
35. Paragraphs 12 and 37 of Massimo's Complaint fail to plead material f~cts with
I
sufficient specificity to allow RSR to either admit or deny the allegations or to prepare a defense.
36. Massimo's general allegations in Paragraphs 12 and 37, regarding the sufficiency
of the HV AC system fail to inform RSR of the nature and extent of its claim and failto
adequately plead any material facts.
37. Nowhere in Massimo's Complaint does it define these terms or provide any
further description of what is meant.
WHEREFORE, Defendant, Rothman, Schubert & Reed respectfully requests this
Honorable Court to dismiss Count Three of the Plaintiffs' Complaint with prejudice, or to Order
the Plaintiffs to file a more specific Complaint with regard to Count Three.
Fifth Preliminary Objection - Demurrer to Count Two
Pa.R.C.P. 1028(a)(4) - Failure to State a Cause of Action
38. In Count Two of its Complaint, Massimo requests rescission of the lease
agreement due to unilateral mistake on the part of Massimo.
39. Massimo's Complaint fails to state a cause of action under Count Two for which
relief can be granted because a unilateral mistake is not a basis for rescission of a lease.
40. "The fact that one of the parties entered into a transaction as a result of a purely
unilateral mistake affords no basis for rescission or other relief, where the other party to the
transaction was in no way responsible for the existence of such misapprehension, and in entering
into the contract acted in good faith without knowledge of such mistake." Woodsmarz of the
World Life Ins. Soc. v. Arnold, 166 A.2d 290,297 (Pa. Super. 1960) citing, Summary of
Pennsylvania Jurisprudence, Contracts, Sect. 223.
41. In an attachment to the lease referred to as "Exhibit B - Owner's Wotk", RSR
represented to Massimo in item No.3 that it would provide "HV AC-heated and co01led with roof
top units, gas fired heat, and electric cooling. Cooling based on one (1) ton per 400 ~quare feet,
turned over in good working order."
42. Massimo has not alleged anywhere in its Complaint that the HV AC system did
not provide cooling as set forth in Exhibit B to the lease.
43. The lease terms regarding the HV AC system were clearly spelled out in the lease
agreement signed by Massimo.
44. Massimo's unilateral mistake, i.e. its unwarranted belief that the HV AC system
would perform other than as specified in Exhibit B to the lease, is not due to any fra4d or
misrepresentation on the part of RSR.
45. As such Massimo's Complaint fails to state a cause of action under Count Two
for which relief can be granted.
Sixth Preliminary Objection - Demurrer to Count Three
1028(a)(4) - Legal Insufficiency of a Pleading
46. In Count Three of its Complaint, Massimo requests rescission of the lease
agreement due to fraud/misrepresentation on the part of Defendant, RSR.
47. Pa.R.c.P. 1019(b) requires that averments of fraud or mistake shall be averred
with particularity. Malice, intent, knowledge, and other conditions of mind may be averred
generally.
48. The plaintiff must set forth in the complaint the exact statements or actions that
constituted the alleged fraudulent misrepresentations, stated with adequate specificity to enable
the defendant do prepare a defense. Y oundt v. First National Bank of Port Allegany, 868 A.2d
539 (Pa. Super. 2005).
49. In Paragraph 22 of its Complaint, incorporated by reference into Count Three,
Massimo avers that "The Plaintiffs relied on the representations made by RSR regarqing its
intended use and that the premises would be suitable for a restaurant facility." (empqasis added).
50. In Paragraph 39 of its Complaint, Massimo avers that "The Plaintiff justifiably
relied upon the representations made by the Defendants." (emphasis added)
51. In Paragraph 40 of its Complaint, Massimo avers, in pertinent part, "As a result of
the Defendants' actions, the Plaintiffs were ultimately forced to expend money for the buildout
and construction of the premises. (emphasis added)
52. These general allegations of representations made by RSR fail to comply with the
requirement ofPa.R.C.P. I 019(b) that averments of alleged fraud be averred with particularity,
and of Youndt, that the Complaint set forth the exact statements allegedly constituting fraudulent
misrepresentation.
53. Paragraphs 22,39 and 40 of Massimo's Complaint do not set forth an~ alleged
"exact statements" or actions on the part of RSR, and are insufficiently plead to allow RSR to
either admit or deny the allegations or to prepare a defense.
54. Nowhere in Massimo's Complaint does it aver what statements or actions on the
part ofRSR constitute fraudulent misrepresentation.
WHEREFORE, Defendant, Rothman, Schubert & Reed respectfully requestsl this
Honorable Court to dismiss Count Three of the Plaintiffs' Complaint with prejudice.
Seventh Preliminary Objection - Demurrer to Count Three
Pa.R.C.P. 1028(a)(4) - Failure to State a Cause of Action
55. In Count Three of its Complaint, Massimo requests rescission of the Lease
agreement due to fraud/misrepresentation on the part of Defendant, RSR.
56. Assuming arguendo that Massimo properly pled a claim for
I
fraud/misrepresentation, Massimo's Complaint still fails to state a cause of action for which
relief can be granted, because the Parol Evidence Rule would bar the introduction oft evidence
regarding Defendant RSR's alleged representations that occurred prior to the signingiofthe lease.
57. "Where the parties to an agreement adopt a writing as the final and complete
expression of their agreement, alleged prior or contemporaneous oral representations or
agreements concerning subjects that are specifically covered by the written contract are merged
in or superseded by that contract." Youndt v. First National Bank of Port Allegany, 868 A.2d
539, 545-546 (Pa. Super. 2005) citing, Blumenstock v. Gibson, 811 A.2d 1029, 1037 CPa. Super.
2002).
58. The lease agreement between RSR and Massimo contained the following
language, just above the signature lines on pg. 32 of the agreement:
THIS LEASE CONSTITUTES THE ENTIRE AGREEMENT
THIS LEASE AND THE EXHIBITS AND RIDER, IF ANY, ATTACHED
HERETO, IS THE COMPLETE AGREEMENT BETWEEN OWNER AND
TENANT CONCERNING THE LEASED PREMISES AND THE SIjIOPPING
CENTER. THERE ARE NO ORAL AGREEMENTS, UNDERSTANDINGS,
PROMISES OR REPRESENTATIONS BETWEEN OWNER AND tENANT
AFFECTING THIS LEASE. ALL PRIOR NEGOTIATIONS AND
UNDERST ANDINGS, IF ANY, BETWEEN THE PARTIES HERETO WITH
RESPECT TO THE LEASED PREMISES AND THE SHOPPING ciENTER
SHALL BE OF NO FORCE OR EFFECT AND SHALL NOT BE U$ED TO
INTERPRET THIS LEASE.
59. In an attachment to the lease referred to as "Exhibit B - Owner's Work", RSR
represented to Massimo in item No.3 that it would provide "HV AC-heated and cooled with roof
top units, gas fired heat, and electric cooling. Cooling based on one (1) ton per 400 square feet,
turned over in good working order."
60. The lease agreement and the Owner's Work rider, attached to the lease at Exhibit
"B", constitute the final and complete agreement concerning the HV AC system.
61. Massimo has not alleged anywhere in its Complaint that the HV AC slfstem did
not operate as set forth in Exhibit "B" to the lease.
62. Parol evidence may be admissible in proving a claim for fraud if the ~laintiff
alleges "fraud in the execution", in which the plaintiff signed the lease only because he was
misled into believing it contained terms that were actually omitted. Blumenstock v. Gibson, 811
A.2d 1029 (Pa. Super. 2002).
63. Massimo has not alleged that it signed the lease because it was misled that terms
were included in the lease that actually were omitted.
64. Parol evidence may also be admissible to prove a claim for alleged fraud where
the plaintiff alleges "fraud in the inducement", in which the plaintiff alleges that but for the
alleged prior representations, he would not have entered into the contract. However, parol
evidence is still inadmissible to prove fraud in the inducement where the written agreement
contains terms that deny the existence of such prior representations. Youndt v. First National
Bank of Allegany, 868 A.2d 539, 545 (Pa. Super. 2005).
65. Massimo does not specifically allege that but for the alleged prior representations,
it would not have entered into the lease.
66. Even if Massimo had so alleged, the language contained on page 32 dfthe lease,
reproduced above in Paragraph 51, specifically denies the existence of such prior representations,
when it states that there are no oral agreements, understandings, promises or representations
affecting the lease, and that all prior such understandings shall have no effect.
67. Parol evidence cannot be admitted to interpret the lease. As such Massimo's
Complaint fails to state a cause of action under Count Three for which relief can be granted.
WHEREFORE, Defendant, Rothman, Schubert & Reed respectfully request$ this
Honorable Court to dismiss Count Three of the Plaintiffs' Complaint with prejudice,
WHEREFORE, Rothman, Schubert & Reed respectfully requests that the C~urt sustain
these Preliminary Objections and enter an Order in the form attached hereto.
Date: June 9, 2005
BY:
Theod e . ir
Attorney LD. No. 16267
John H. Pietrzak, Esquire
Attorney I.D. No. 79538
2331 Market Street
Camp Hill, P A 17011
Telephone: (717) 763-1383
Attorneys for Defendant,
Rothman, Schubert & Reed
---------
CXh\Q'\{ A
-
dlblrsr\MassimoNapoli.lse
November 4, 2004
LEASE LETTER
I
1
Pennsboro Commons Shopping Center I
Rothman, Schubert & Reed I
3 Lemoyne Drive, Suite 100
Lemoyne, PA 17043:
~ I
Lease dated (!) D \J -, 2004 between William F. Rothman, Charl~ls F. Schubert &
Samuel L. Reed, Co-Partners, tJdIb/a Rothman, Schubert & Reed, a Penn ylvania General
Partnership, Owner, and Massimo Napoli, Inc., a Pennsylvania corporation, enant, covering
Premises located in Pennsboro Commons Shopping Center, East Penns ora _Township,
Cumberland County, Pennsylvania. 1
I
i
\
1
i
- I
Tenant has accepted possession of the Premises demised pursuant to the temts of the above-
described Lease., t
The improvements and space required to be furnished according to the aforesaid ease have been
completed and supplied in all respects.
i
-I
RE:
The undersigned, as Tenant, hereby confirms the following:
2.
3.
4.
5.
6.
7.
1.
Landlord-Owner has fulfilled all of its duties of an inducement nature.
The aforesaid Lease has not been modified, altered or amended except as set forth below.
There are no offsets or credits due against rentals nor have rentals been pre~aid except as
provided by the Lease terms. I
The initial term of said Lease began on the --.r day of
commenced to accrue on that date; the initial Lease Term expires on r
I
I
I
~-
MasSimo
- I
;/
Exhibit 1
LEASE AGREEMENT
PENNSBORO COMMONS SHOPPING CENTER
2
LEASE AGREEMENT
WITNESSETH, that in consideration of mutual covenants, Owner and Tenan hereby agree as
follows:
SECTION A. BASIC LEASE PROVISIONS AND ENUNIERATION OF EXHIBITS
Section A-1. Basic Lease Provisions.
DATE:
,2004
SHOPPING
CENTER:
Pennsboro Commons Shopping Center
Cumberland County, Pennsylvania
William F. Rothman, Charles F. Schubert & Samuel L. Ret, Co-Partners,
t/dIb/a Rothman, Schubert & Reed, a Pennsylvania General Pa ership with an
address of 3 Lemoyne Drive, Suite :100, Lemoyne, P A 17043. I
~O~A I
Massimo ~ a Pennsylvania corporation
384 East Penn Drive, Enola, P A 17025
OWNER:
TENANT: .
TENANT'S ADDRESS:
TENANT'S PHONE NUMBER: 407-491-7686
TENANT'S
TRADE NAME:
~- Jv1/~S.s/Ho -ir-JiJror,-tA
&i
LEASED
PREMISES:
The Premises outlined in red on Exhibit A containing appro iffiately 2,460
square feet of Gross Leasable Area and identified as Block H, Units 7 and 8
with an address of 384 East Penn Drive, Enola, P A 17025.
LEASED TERM:
Five (5) Years.
RENEW AL TERM:
Two (2), Five (5) Year options.
3
PERIOD FOR
COMPLETION OF
TENANT'S WORK:
PERMITTED
USES:
ANNUAL
MINIMUM RENT:
PERCENTAGE
RATE:
BREAKPOINT:
INITIAL ESTIMATED
COMMON FACll...ITlES
CONTRIBUTION FOR
TENANT:
INITIAL ESTIMATED
TAX CHARGE FOR
TENANT:
Tenant's work shall be completed on or before 30 days after 0 ner substantially
completes Owner's Work set forth in Exhibit B and makes the Leased Premises
available to Tenant. The term "substantially completes" as used in this
paragraph shall mean that Owner has completed Owner's Work with the
exception of minor items which can be fully completed prior 0 completion of
Tenant's Work without material interference with Tenant's War or upon receipt
of a certificate of occupancy from East Pennsboro Township, hichever occurs
sooner.
Eat-inlDine-in Italian Trattoria restaurant serving lunch and di ner with a high
end atmosphere, white table cloths, BYOB, and serving such ill nu items as are
set forth on the attached Exhibit E, and not otherwise in iolationof any
currently granted or existing exclusives granted to other Tenants.
Tenant shall pay to Owner, as Annual Minimum Rent, on the fi st day of every
month, in advance, and at a rate of $16.00 per square foot, the urn of $39,360
annually ($3,280/month) for the five (5) year Lease Term.
The Annual Minimum Rent for the renewal term(s), if any, shall e:
First Option: $17.00 per square foot, $41,820 annually ($3,485/m nth)
Second Option: $18.00 per square foot, $44,280 annually ($3,69 /month)
N/A%
$N/A
$3,690.00 per calendar year ($307.50 per month) (subject to adjustment as set
forth in Article vn of this Lease)
$2,460.00 per tax year ($205.00 per month) (subject to adjustmen as set forth in
Article VI of this Lease)
4
INITIAL ESTIMATED
INSURANCE CHARGE
FOR TENANT:
$615.00 per calendar year ($51.25 per month) (subject to adjus ment as set forth
in Article X of this Lease)
SECURITY DEPOSIT:
Upon execution of this Lease, Tenant shall deposit the sum 0 $3,280.00 with
Owner to secure the performance of the obligations of Tenant h rein contained.
Section A-2. Effect of Reference to a Basic Lease Provision.
Each reference in this Lease to any of the Basic Lease Provisions contained in ection A-I shall
be deemed to incorporate all of the terms provided under each such Basic Lease Provisio .
Section A-3. Enumeration of Exhibits.
The Exhibits enumerated in this Section and attached to this Lease are hereby incorporated in
this Lease by reference and each party agrees to perform all obligations binding up it under such
Exhibits.
Exhibit A
Exhibit A-I
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Site Plan
Legal Description of Owner's Tract
Owner's Work
Rules and Regulations
Guaranty of Lease
Sample Menu
RECITALS
Owner owns fee title to certain real property described on Exhibit A-I. Th real property
described on Exhibit A-I (as the same may be expanded or reduced as contemplated i this Lease) is
herein called "Owner's Tract." The term "Shopping Center" shall mean Owner's Tract, t gether with the
buildings and other improvements thereon from time to time.
ARTICLE I - GRANT AND TERM
Section 1.01. Leased Premises and Common Areas.
Owner leases to Tenant and Tenant rents from Owner those premises located i the Shopping
Center and described as the "Leased Premises" in Section A-I of the Basic Lease Provi ions, together
with the appurtenances specifically herein granted. The use by Tenant of the Leased remises shall
include the non-exc1usive use of the "Common Facilities" (as defined in Section 7.02) sh wn on Exhibit
A, and such other Common Facilities as may be designated from time to time by wner, subject,
however, to the provisions of Section 4.02 and 7.04 and to the other terms and conditions this Lease.
5
Section 1.02. Tenn.
The term of this Lease and Tenant's obligation to pay rent shall, subject to he provisions of
Section 23.02, commence upon the earlier of the following dates (the "Commenceme t Date"): (i) the
date on which Tenant shall open the Leased Premises for business with the public, 0 (ii) the date of
expiration of the "Period For Completion of Tenant's Work" designated in Section A-I 0 the Basic Lease
Provisions, but no later than that date which is sixty-days (60) days after the date the Lase is signed by
both parties. The term of this Lease shall expire, unless sooner terminated as in this Le se provided, on
the last day of the last "Leased Year" (as defined in Section 23.04) provided under 'Lease Term" in
Section A-I of the Basic Lease Provisions. In order to extend the Leased Term as provided under
"Renewal Term" in Section A-I of the Basic Lease Provisions, Tenant shall give Owner inety (90) days
written notice of its intention to renew the Leased Term prior to the end of the then cu ent term at the
amount designated for the renewal terms provided under Annual Minimum Rent in Se tion A-I of the
Basic Lease Provision.
Section 1.03. Obligations Prior to Commencement of Term.
Tenant shall perform all of its obligations under this Lease (except its obligation to pay rent and
other charges) from the date upon which the Leased Premises are first made available to enant until the
Commencement Date.
Section 1.04. Owner's Financing Contingency. JNTENTIONALL Y OMITTED
ARTICLE II. RENT
Section 2.01. Annual Minimum Rent.
Tenant shall pay to Owner, without any prior demand, deduction or seta , the "Annual
Minimum Rent" specified in Section A-I of the Basic Lease Provisions, in equal monthly nstallments on
or before the first day of each calendar month in advance. Annual Minimum Rent or a fractional
calendar month shall be prorated.
Section 2.02. Percentage Rent. JNTENTIONALL Y OMITTED
Section 2.03. Gross Receipts Defined.
The term "Gross Receipts" is defined to mean: (i) the entire amount of the price ch ged, whether
wholly or partially in cash or on credit, or otherwise, for all goods, wares, merchandise nd chattels of
any kind, sold, leased, licensed or delivered, and all charges for services sold or perla d in, at, upon
or from any part of or through the use of the Leased Premises or any part thereof by Tenan and any other
person, firm or corporation, or by means of any mechanical or other vending device ( ther than pay
telephones and those soft drink and other similar vending devices operated primarily for t e convenience
of Tenant's employees); and (i1) all gross income of Tenant and any other person, firm r corporation
from any operations in, at, upon or from the Leased Premises which are neither included i nor excluded
from Gross Receipts by other provisions of this Lease, but without any duplication. Gross Receipts shall
not include the amount of any sales tax, use tax or retail excise tax which is impose by any duly
constituted governmental authority directly on sales and which is both added to the se ling price (or
absorbed therein) and is paid to the taxing authority by Tenant (but not any vendor of Tenant). No
franchise or capital stock tax, and no income or similar tax based upon income or profits a such, and no
personal property tax, shall be deducted from Gross Receipts.
6
Section 2.04. Additional Rent.
Tenant shall pay, upon demand as additional rent, all charges required to b paid by Tenant
under this Lease, whether or not the same are designated "additional rent".
Section 2.05. Interest.
If Tenant shall fails to pay within five (5) days from when the same is due and ayable, any rent
or any additional rent, Tenant shall, upon demand, pay Owner (i) a late charge of 100.00 for each
installment of Annual Minimum Rent or other charge past due and (ii) interest at the" terest Rate" (as
defined in Section 23.04) on the arrearages from the due date thereof until paid.
ARTICLE III - RECORDS; REPORTS AND AUDIT
Section 3.01. Tenant's Records; Reports and Audit.
Tenant agrees to prepare and keep true and complete records and accounts for at least 24 months
after each Lease Year during the term of this Lease of all final records including b t not limited to
income statement, balance sheet and financial statement for each such Lease Year in ccordance with
generally accepted accounting principles consistently followed. Tenant shall provid such financial
records to Owner within 15 days of Owner's written request for the purpose of satisfy ng a current or
future mortgagee or purchaser in the event that Owner would refinance or sell the Shop ing Center and
such mortgagee or purchaser would request such information; provided that Owne shall (i) keep
confidential, not disclose (other than to the mortgagee or purchaser) or otherwise use for ts benefit, such
information, and (ii) cause the mortgagee or purchaser to agree in writing to keep c nfidential, not
disclose or otherwise use for its benefit such information.
ARTICLE N - CONSTRUCTION ALTERATIONS. ADDITIONS AND RELO ATIONS OF
IMPROVEl\1ENTS
Section 4.01. Owner's and Tenant's Work.
(A) Owner and Tenant shall construct the Leased Premises in accordance wit
of Exhibits B. All of Tenant's Work with respect to utility installations shall also be subj
when applicable, by the utility company furnishing the service.
(B) Owner or an authorized utility company shall have the right to cons ct, maintain,
repair, replace and relocate utility lines, pipes, conduits and duct work where necessa or desirable,
through attic space, column space or other similar areas of the Leased Premises, and t repair, alter,
replace or remove the same, all in a manner which does not interfere unreasonably wit Tenant's use
thereof, and Tenant shall not be entitled to an abatement or reduction of rent or to c1ai an actual or
constructive eviction by reason thereof. "Owner's Work" (hereinafter defined in Exhi it B) shall be
deemed approved by Tenant in all respects except for items of Owner's Work which are n t completed or
do not conform to Exhibit B and as to which Tenant shall have given notice to Owner ithin 30 days
after the commencement of the term.
Section 4.02. Changes and Additions to the Shopping: Center.
Notwithstanding anything set forth in this Lease to the contrary, it is agreed that wner reserves
the right, without invalidating this Lease or modifying any provision thereof except Ex ibit A, at any
7
time either before, during or after the initial construction thereof, (i) to make alte ations, changes,
deletions and additions (including additional stories) to the buildings, Common Fac lities and other
improvements in the Shopping Center (excluding the interior of the Leased Premises) (ii) to add and
permit to be added additional land(s) to the Shopping Center and to exclude land(s) t erefrom; (iii) to
construct and to permit to be constructed additional buildings and other improvements 'n the Shopping
Center; (iv) to remove or relocate the whole or any part of any building or other imp ovement in the
Shopping Center; and (v) to relocate the premises leased to any other tenant. PROVIDE , HOWEVER,
the foregoing shall not be construed as permitting Owner to change the location f, or otherwise
umeasonably interfere with Tenant's use of the Leased Premises.
ARTICLE V - CONDUCT OF BUSlNESS BY TENANT
Section 5.01. Use of Premises.
Tenant shall operate the Leased Premises under the "Trade Name", if any, spec fied in Section
A-I of the Basic Lease Provisions and shall use the Leased Premises solely for the" ennitted Uses"
specified therein and for no other use or purpose whatsoever, Tenant shall not permit an business to be
operated in or from the Leased Premises by any concessionaire or licensee without the rior consent of
Owner.
Section 5.02. Operation of Business.
Tenant shall, subject to the provisions of Section 22.02, (i) open the Leased Pre ses by the date
provided in Section 1.02 and thereafter continuously operate all of the Leased Premise in good faith
during the term so as to produce the maximum profitable and practical Gross Receipts which may be
produced by such manner of operation; and (ii) keep the Leased Premises open for busine s and the signs
therefore lighted during such reasonable and customary lunch and dinner hours for an eat in/dine in
restaurant. If Tenant defaults in respect to any of the foregoing covenants then T nant shall, in
recognition of the difficulty or impossibility of determining Owner's damages, pay t Owner, upon
demand, as liquidated damages (and not as a penalty) and in addition to the Annual Mini urn Rent and
other charges payable under this Lease, a separate charge equal to 1/365 of the then app icable Annual
Minimum Rent for each day, or part thereof, Tenant fails to open or operate the Leas d Premises in
accordance with the provisions of this Section.
5.03. Radius Restriction.
If Tenant or "Guarantor" (if any) or (if Tenant is not an individual or partnership) ny subsidiary
or parent corporation of Tenant or Guarantor, or any affiliate of Tenant or Guarantor s all directly or
indirectly engage or participate in, as owner, principal, employee or agent, or through any subsidiary, or
affiliate, or furnish financial or other aid or support to, any business enterprise or unde king which is
materially competitive with the uses specified in Section 5.01 of the Lease Agreement, an such business
is located within 3 miles from any boundary line of the Shopping Center, then Owner shall ave the right,
in recognition of the fact that the Annual Percentage Rent payable hereunder may be re uced by such
competition, to require by notice to Tenant that 33 % of any and all gross sales ( hich shall be
coextensive in scope to Gross Receipts as defined in this Lease) made at, in or from any s ch competing
operation shall be deemed Gross Receipts for the purpose of computing the Annual Perce tage Rent due
under this Lease, with the same force and effect as though such percentage of gross sale had actually
been made in the Leased Premises and in such event the provisions of Article ill shall applicable to
such competing operation and the gross sales received therein.
8
Section 5.04. Parking,
Tenant and employees of Tenant shall park their automobiles in the side and r ar parking areas
designated by Owner for employees. Owner shall provide appropriate lighting for said ea. In the event
that Owner observes or becomes aware of a pattern of Tenant's employees parking in u authorized areas,
Owner shall notify Tenant in writing. If Tenant's employees continue parking in suc areas after such
written notice, Owner shall be entitled to tow improperly parked vehicles at the au omobile owner's
expense and without further notice.
ARTICLE VI - TAXES
Section 6.01. Taxes.
(A) The term "Taxes" shall mean the aggregate of the real estate taxes, asses ments and other
governmental charges and levies, general and special, ordinary and extraordin , foreseen and
unforeseen, of any kind or nature whatsoever (including assessments for public improve ents or benefits
and interest on unpaid installments thereof) which may be levied, assessed or imposed or become liens
upon the Shopping Center, or which arise out of the use, occupancy or possession of the hopping Center
(land, buildings and permanent improvements) from time t6 time. The term "Taxes" sh 11 not, however,
include inheritance, estate, succession, transfer, gift, franchise, corporation, income or pr fit tax imposed
upon Owner, nor penalties imposed upon Owner for Owner's delinquent payment of the Taxes;
PROVIDED, HOWEVER, that if at any time during the term of this Lease the met ods of taxation
prevailing at the commencement of the term of this Lease shall be altered so that in addi ion to or in lieu
of or as a substitute for the whole or any part of the Taxes now levied, assessed or impos d on real estate
as such there shall be levied, assessed or imposed (i) a tax on the rents received fro - the Shopping
Center; or (ii) a license fee measured by the rents receivable by Owner from the Shoppin Center; or (iii)
a tax or license fee imposed upon Owner which is otherwise measured by or based in hole or in part
upon the Shopping Center or any portion thereof, then such tax or fee shall be i eluded in the
computation of Taxes, computed as if the amount of such tax or fee so payable were tha part due if the
Shopping Center were the only property of Owner subject thereto.
(B) The term "Tax Year" shall mean the 12 month period established as th
year by the taxing authorities having jurisdiction over the Shopping Center.
(C) The term "Tenant's Tax charge" shall mean an amount equal to the prod ct obtained by
multiplying the sum of the Taxes for each Tax Year plus all costs, expenses and attome 'fees incurred
by Owner in contesting any Taxes during such Tax Year (which Owner may do at its option) by
"Tenant's Percentage Share" (hereinafter defined in Section 23.04) as of the date the Tax s for such Tax
Year are assessed. For the Tax Year in which this Lease commences or terminates, Tena t's Tax Charge
shall be prorated.
(D) Tenant's Tax Charge shall be paid to Owner in monthly installments ( estimated by
Owner) in advance on the first day of each calendar month during such Tax Year. Own r's estimate of
Tenant's Tax Charge for the Tax Year in which this Lease commences is set forth in Sec ion A-I of the
Basic Lease Provisions. Within 90 days after the end of each Tax Year, Owner shall de iver a copy to
Tenant of all tax bills for such Tax Year and certify to Tenant the amount of Tenant's T Charge and
Owner and Tenant shall then adjust any overpayment or underpayment by Tenant of Tena t's Tax Charge
for such Tax Year. Any payment required in connection with an overpayment or underpa ment shall be
due within thirty (30) days. Owner's failure to provide such information within the 90 d ys shall in no
way excuse the Tenant from its obligations to pay any underpayment or constitute a wai er of Owner's
right to bill and collect such underpayment from Tenant in accordance with this paragraph.
9
(E) Tenant s'haIl pay (or reimburse Owner upon demand if the same are levi d against Owner
or the Shopping Center), before delinquency, any and all taxes, assessments, licens fees and public
charges, of whatever kind or nature, levied or assessed during the term by any gove mental authority
against Tenant's business in the Leased Premises and the fixtures, furniture, applianc s and any other
personal property therein.
(F) Owner shall have thesole,absolutellndmunrestrlcted right (but not t e obligation) to
contest and/or compromise the validity or amount of any Tax by appropriate proceedin s. Owner shall
have the right (but not the obligation), if permitted by law, to make installment yments of any
assessments levied against the Shopping Center, and in such event, Tenant's share of th Taxes shall be
computed upon the installments thereon paid by Owner in each Tax Year.
ARTICLE vn - COST OF MAlNTENANCE AND CONTROL OF COMMON FACIL
Section 7.01. Common Facilities Contribution.
In each calendar year during the term, Tenant shall pay to Owner an amount (the "Common
Facilities Contribution") equal to a proportion of the "Oper~ting Cost" (as defined in See ion 7.02) of the
Common Facilities ("Tenant's Common Facilities Contribution"). Tenant's Co on Facilities
Contribution for each calendar year during the term shall be that portion of the Operati g Cost for such
calendar year equal to the product obtained by multiplying the Operating Cost for such alendar year by
Tenant's Percentage Share (hereinafter defined in Section 23.04) as of the first day of suc calendar year.
Section 7.02. Operating Cost and Common Facilities Defined.
(A) The term "Operating Cost" shall mean the total cost (other than th cost properly
chargeable to capital account, except as herein specifically provided) and expense incurr d in operating,
maintaining, equipping, inspecting, protecting and repairing the Common Facilities, in luding without
limitation, the cost or expense of, or incurred in connection with or reasonably attributabl to: water, gas,
electricity and other utilities; gardening and landscaping (including planting and replaci g flowers and
shrubs); cleaning; fire protection (including installation and maintenance of an ADT r similar type
system); fees for required licenses; all Taxes levied, assessed or imposed or which may b come a lien on
the Common Facilities or which may arise out of the use thereof and not otherwise coil cted elsewhere
under the terms of this Lease; line painting; the repair and maintenance of the roof and mished ceiling
(including lighting) of all Shopping Center canopies; operating of loudspeakers and 0 her eqwpment
supplying music; sanitary control; security services (if any); sewer service charges; re oval of ice,
snow, trash, rubbish, debris, garbage and other refuse (including ice and snow removal ediately in
front of Tenant's storefront); depreciation on machinery and equipment used in suc maintenance;
resurfacing and restriping of parking areas; repairing the roof of the Shopping Cent r; and on-site
personnel to provide and supervise such services (including wages, unemployment and social security
taxes and the cost of uniforms for such personnel); plus an amount equal to ten percent (1 %) of the total
of all of the foregoing as an agreed upon reimbursement covering the administrative costs to be incurred
by Owner in connection with the operation of the Common Facilities.
(B) The term "Operating Cost" shall also include any municipal improveme ts required by
the local municipality to be made to the Common Facilities including but not limited to affic signals,
stop signs, and road repair. Tenant's Common Facility Contribution for any improvem nts or repairs
required under this Section 7.02(B) shall be obtained by multiplying the cost of e municipal
improvements or repairs made to the Common Facilities by Tenant's Percentage Share.
(C) The term "Common Facilities" shall mean all areas, space, equipme t and special
services in or serving the Shopping Center, provided for the common or joint use and hen fit of Owner,
I
10
the occupants of the Shopping Center, and their employees, agents, servants, cust mers and other
invitees, including, without limitation: any open pedestrian malls; parking areas and parking lot
improvements; access roads; driveways; retaining walls; exterior boundary walls d fences; water,
sanitary and storm sewer (including any off-site sewer lines which Owner is required 0 maintain), gas,
electric, telephone and other utility lines, systems, conduits and facilities to the perim ter walls of any
building (even though intended for the use of only one or a limited number of occu ants) and those
within a building serving more than one premises, and any of the foregoing which se ve the Common
Facilities; on or off-site water detention and retention ponds, facilities and syste s; on-site trash
compactor; plantings; landscaped areas; truck service ways or tunnels; loading dock are s and facilities;
the roof and finished ceiling (including lighting) of all Shopping Center canopies courts; ramps;
sidewalks; comfort and first aid stations; washrooms; parcel pick-up stations; any Shopp ng Center pylon
sign; drinking fountains; vertical transportation equipment (including elevators d escalators);
auditoriums; community centers; bus stations; and the facilities appurtenant to eac and all of the
foregoing.
Section 7.03. Payment.
(A) Tenant's Common Facilities Contribution shall be paid in monthly ins aIlments on the
first day of each calendar month during the term in advance, in an amount reasonab y estimated by
Owner. Owner's estimate of Tenant's Common Facilities Contribution for the calendar y ar in which this
Lease commences is set forth in Section A-I of the Basic Lease Provisions. Within 90 d ys after the end
of each calendar year during the term, Owner shall furnish Tenant with a statement s rnrnarizing the
actual Operating Cost for such calendar year and setting forth the method by which .Ie ant's Common
Facilities contribution was determined as herein provided, and Owner and Tenant shall then adjust any
overpayment or underpayment by Tenant of Tenant's Common Facilities Contribution f r such calendar
year with any resultant payment to be due within thirty (30) days. Owner's failure provide such
statement within the 90 days shall in no way excuse Tenant from its obligations to pay an underpayment
or constitute a waiver of Owner's obligations to bill and collect such underpayment rom Tenant in
accordance with this Paragraph. Any claim by Tenant for revision of any statement sub 'tted by Owner
hereunder for any such calendar year which is not made within 90 days after receipt of uch statement,
shall be deemed waived and discharged. For the calendar year in which this Lease commences or
terminates, Tenant's Common Facilities Contribution shall be prorated.
(B) Any municipal improvements or repairs as contemplated in Section 7.02( ) shall be paid
within thirty (30) days of Tenant's receipt from Owner of a payment statement. As uch municipal
improvements are outside the control of the Owner, the Owner agrees to give Tenant rompt written
notice of any municipal improvements or repairs upon Owner's receipt of such n tice from the
municipality.
Section 7.04. Control by Owner.
Notwithstanding anything set out in this Lease to the contrary, it is agreed that ( ) all Common
Facilities shall be subject to the exclusive control and management of Owner, and Owner ay permit the
owners or occupants of land located outside the Shopping Center and their invitees to us the Common
Facilities, provided such use does not unreasonably interfere with Tenant's or its custo r's use of the
Leased Premises; (ii) Owner shall have the right to temporarily close all or any portion 0 the Common
Facilities (including parking areas), provided, such closure does not unreasonably interfer with Tenant's
or its customers' use of the Leased Premises; (iii) Owner shall be required to keep the parking areas
lighted from dusk to dawn and not during any daylight hours, and (iv) Owner shall have the right to do
and perform such other acts in and to the Common Facilities as Owner shall determine t be advisable
with a view to the improvement of the convenience and use thereof by tenants of the Sh pping Center
and their customers, including the right to permit, in Owner's sole discretion, pro tions in and
11
decorations of the sidewalks and parking areas; PROVIDED, HOWEVER, Owner s all maintain the
Common Facilities in the Shopping Center in reasonably good order and repair, a d shall keep the
parking area and other Common Facilities in the Shopping Center reasonably free f snow, ice and
debris and adequately lighted, but these obligations shall not inure to the benefit of a y third party nor
confer upon any third party any rights or remedies in the event of Owner's failure to perform such
obligations. 1
ARTICLE vrn - ALTERATIONS; SIGNS; SURRENDER AND TENANT LIENS
Section 8.01. Alterations.
Tenant shall not make or cause to be made any alterations, additions or improve ents in or to the
Leased Premises without submitting to Owner plans and specifications therefore and 0 taining Owner's
consent thereto, which consent shall not be unreasonably withheld or delayed.
Section 8.02. Surrender; Title to Improvements; Removal and Restoration by Tenant.
(A) On the last day of the term or on the sooner tennination thereof, Tenant shall (i) subject
to the provisions of Articles XVI and XVII, peaceably surrender the Leased Premises br om clean and in
good order, condition and repair except for reasonable wear and tear; (ii) at its expense emove from the
Leased Premises the signs, moveable furniture and trade fixtures (including, without Ii 'tation, molly-
bolts, screws and other items inserted into the walls of the Leased Premises) which we e furnished and
installed by Tenant at Tenant's sole expense ("Tenant's Property") and, if requested by 0 ner, remove, at
Tenant's expense, the carpeting in the Leased Premises, and (iii) deliver to Owner a certificate of
inspection from a reputable mechanical systems contractor that the heating, ventilating, ir conditioning,
electrical and plumbing systems are in good order, condition and repair. Any damag to the Leased
Premises caused by Tenant in the removal of Tenant's Property shall be repaired by Te ant at Tenant's
expense (including, without limitation, the patching and sanding of molly-bolt holes a d other similar
type holes in the walls of the Leased Premises).
(B) Except for Tenant's property, the title to all alterations, additions, improv ments, repairs,
decorations, non-trade fixtures, equipment (including heating and air conditioning quipment) and
appurtenances attached to or built into the Leased Premises which shall have been ma e, furnished or
installed by or at the expense of either Owner or Tenant in or upon the Leased Premis s shall become
upon the installation thereof and remain a part of the Leased Premises without disturb nee or' charge,
except that Owner may elect to require Tenant, at Tenant's expense, to remove any or all of such
alterations, additions, improvements, non-trade fixtures, equipment, and/or appurtenanc s, and Tenant
shall upon such removal restore the Leased Premises to good condition, subject to ord nary wear and
tear.
\
Section 8.03. Tenant's Liens.
(A) Before Tenant permits any work, labor, services or materials to be pe formed for or
furnished to the Leased Premises, Tenant shall require any party with whom Tenant contr cts to perform
said work to Tenant or anyone holding all or any part of the Leased Premises under nant to file a
stipulation against liens pursuant to ~ 1402 of the Pennsylvania Mechanics' Lien Law of 1963 (49 P.S.
~1401, et seq.).
(B) Tenant shall not suffer any mechanics' or materialmen's lien to be fil d against the
Leased Premises or the Shopping Center by reason of work, labor, services or material performed or
furnished to Tenant or anyone holding all or any part of the Leased Premises under Tena 1. If any such
12
lien shall at any time be filed as aforesaid, Tenant may contest the same in good faith b t notwithstanding
such contest, Tenant shall, within 15 days after the filing thereof, cause such lien to be eleased of record
by payment, bond, order of a court of competent jurisdiction, or otherwise.
In the event that Tenant fails to take the actions that are necessary to caus such lien to be
released, then the Owner shall have the right to take whatever actions are necessary t have said liens
released. In such event, Tenant agrees to reimburse the Owner for all costs incurre by the Owner,
including attorneys' fees. A failure by the Tenant to reimburse the Owner these costs hall be a default
by Tenant pursuant to Article XVID.
(C) Tenant shall not create or suffer to be created a security interest or othe lien against imy
improvements, additions or other construction made by Tenant in or to the Leased Pr mises or against
any equipment or fixtures installed by Tenant therein (other than Tenant's Property).
Section 8.04. Tenant's Signs.
Tenant shall not install any sign, billboard, marquee, awning, placard, lette ing, advertising
matter or other thing of any kind, whether permanent or temporary, on the exterio of the Leased
Premises, or in or on any glass window, window showcase, :or door of the Leased Premis s until the same
has been approved by the Owner in writing. Owner has the right to contra] the size, lac tion, design and
materials of the same for the purpose of establishing and maintaining the appearance f the Shopping
Center. Owner shall not unreasonably withhold or delay its approval of Tenant's sign(s).
ARTICLE IX - MAINTENANCE OF LEASED PREMISES' RULES AND REGULATI
Section 9.01. Maintenance by Tenant.
Subject to the provisions of Articles XVI and XVII, Tenant shall, at its sole cost, keep and
maintain the interior of the Leased Premises [together with exterior (i) feature lightin , (ii) windows,
including sashes, (iii) heating, ventilating and air conditioning equipment and sewer nd other lines
serving the Leased Premises exclusively, (iv) doors, including frames, locks, hardwar and track, (v)
store front of the Leased Premises, and (vi) signs and other equipment referred to in Section 8.04],
including without limitation, the partitions, ceiling, interior portions of exterior walls, floor covering
therein, and the fixtures, equipment, machinery, appliances and utility lines therein an appurtenances
thereof [such as, but not limited to, lighting fixtures and lenses and such fixtures, equip ent, mac,hinery
controls, appliances and utility lines and appurtenances thereof, as are used for, in con ection with or
which are a part of the electrical, plumbing, heating, air conditioning, ventilating, sprinkl r, or any other
mechanical systems in or serving the Leased Premises], in conformity with all rules an regulations of
Owner's hazard insurer, neat and clean and in good order, condition, maintenance and epair. Tenant
shaH also at its cost procure and maintain in the Leased premises all safety applianc s required by
Owner's hazard insurer to be maintained therein. Tenant shall replace any and all plat , window and
other glass (structural or otherwise) in, on or about the Leased Premises, which rna be broken or
destroyed, with glass of the same or similar quality. Before undertaking repairs to the Lased Premises
(other than minor interior non-structural repairs), Tenant shall first obtain Owner's appro al of the plans
and specifications therefore, which approval is not to be unreasonably withheld. Owner hall authorize
one (1) heating and air conditioning contractor who shall provide a complete service an maintenance
contract to Tenant who shall be the named party on the contract for the changing of tilte s at least once
per month, the monthly inspection of the HV AC equipment serving the Leased Premis s, including a
written report of the condition there of to be provided to Owner and Tenant, the periodi oiling of the
equipment where required, the tightening of belts, the filling of pitch pans and the sealing f water leaks,
among other things. The service and maintenance contract and its related costs shall be th sole cost and
13
expense of the Tenant; The existence of a service contract with an Owner approved vendor shall not
relieve Tenant of its obligations to maintain and repair such equipment as above provide
Section 9.02. Maintenance by Owner.
Subject to the provisions of Articles XVI and xvn and to the obligations of enant under the
provisions of Sections 9.01, the foundations, roof (excluding interior ceilings), and ext rior portions of
the exterior walls (excluding store front) of the Leased Premises shall be maintained by Owner at its
expense in good order, condition, maintenance and repair. Owner shall not be deemed 0 have breached
its obligation to make the repairs required of Owner as set forth in this Section, or to e liable for any
damages resulting therefrom, unless Owner fails to make the same within a reasonable p . od (taking into
consideration the type of repair involved) after receiving notice from Tenant of the need erefore.
Section 9.03. Rules and Regulations.
Tenant agrees to comply with and observe the rules and regulations set fort in Exhibit C.
Owner reserves the right, at any time, once or more often, by notice to Tenant, to amen or supplement
said rules and regulations in a reasonable and non-discriminatory manner.
ARTICLE X - INSURANCE AND INDEMNITY
Section 10.01. Liability Insurance.
Tenant shall keep in force with an insurance company authorized to do busines in the State in
which the Leased Premises are located and which has a Best's Insurance Guide Raing of A+:XV
("Qualified Carrier"), a policy of comprehensive public liability insurance, including pr perty damage,
with respect to the Leased Premises and the business operated by Tenant and any other ccupant of the
Leased Premises, in which the limits of coverage shall not be less than $3,000,000.00 (c mbined single
limit bodily injury and property damage). Such policy shall also insure the performance b Tenant of the
indemnity agreement set forth in Section 10.04. In addition to Tenant, the policy shall al 0 name Owner
and any other person, firm or corporation designated by Owner and in privity with it, an additional
insured. Tenant shall continually provide Owner with a certificate of such insurance (th first of which
shall be provided prior to commencement of Tenant's Work), which shall provide that t e insurer will
give Owner at least 30 days' written notice prior to any cancellation of, lapse or materia change in the
insurance. The insurance required in this Section and in Section 10.02 may be covered u der a so-called
"blanket" policy covering other stores of Tenant and its affiliates.
Section 10.02. Fire Insurance.
Tenant shall keep in force with a Qualified Carrier fire insurance (with extende coverage and
vandalism and malicious mischief coverage), water damage, sprinkler leakage and plate g ass, insurance,
on the standard forms, insuring all of Tenant's Property in the Leased Premises, and a 1 betterments,
additions, repairs, imprclVements and alterations made to the Leased Premises by Tenan , and all plate
glass windows, plate glass doors and other plate glass in the Leased Premises, in an a ount equal to
100% of the replacement cost thereof. The proceeds of such insurance shall be held in st by Owner
and Tenant for use in repairing and restoring the items covered thereby and the proceeds shall be made
payable to Owner and Tenant and may only be disbursed jointly by Owner and Tenant. he foregoing
policy of insurance shall be issued in favor of and in the names of Owner and Tenant, as their interests
may appear, and Tenant shall furnish Owner and the holder of any mortgage on the Leased Premises with
a certificate evidencing such coverage, which certificate shall provide that the insuranc shall not be
canceled, materially amended or allowed to lapse without thirty (30) days' prior written otice thereof
being given by the insurance carrier to Owner.
14
15
-
Section 10.03. Insurance on Buildings and Improvements in the Shopping Center.
(A) In each calendar year during the term, Tenant shall pay to Owner an amount (the
"Tenant's Insurance Contribution") equal to a proportion of the "Insurance Cost" (as de ned in paragraph
(B) of this Section). Tenant's Insurance Contribution for each calendar year during the erm shall be that
portion of the Insurance Costs for such calendar year equal to the product obtained b multiplying the
Insurance Cost for such calendar year by Tenant's Percentage Share (hereinafter d fined in Section
23.04) as of the first day of such calendar year.
(B) The term "Insurance Cost" shall mean the total cost of insuring t e buildings and
improvements in the Shopping Center (including Common Facilities), including public liability,
(including "umbrella coverage"), workmen's compensation and hazard insurance (inclu ing rental value
insurance, fire and extended coverage [with vandalism and malicious mischief endorse ent]; boiler and
machinery, and all-risk policies).
(C) Tenant's Insurance Contribution shall be paid in monthly installments 0
each calendar month during the term in advance, in an amount reasonably estimated by
estimate of Tenant's Insurance Contribution for the calendar year in which this Lease c mmences is set
forth in Section A-I of the Basic Lease Provisions. Within 90 days after the end of ea h calendar year
during the term, Owner shall furnish Tenant with a statement summarizing the actual In urance Cost for
such calendar year and setting forth the method by which Tenant's Insurance C ntribution was
determined as herein provided and Owner and Tenant shall then adjust any verpayment or
underpayment by Tenant of Tenant's Insurance Contribution for such calendar year wi h any resultant
payment to be due within thirty (30) days. Any claim by Tenant for revision of any stat ment submitted
by Owner hereunder for any such calendar year, which claim is not made within 90 day after receipt of
such statement, shall be deemed waived and discharged. For the calendar year in w ich this Lease
commences or terminates, Tenant's illsurance Contribution shall be prorated, if applicable on the basis of
a 360-day year.
(D) Tenant shall provide Owner on an annual basis with proof of all insuranc
shall provide that the insurer will give the Owner at least 30 days' written notice prior to
of, lapse of or material change in the insurance.
policies which
y cancellation
Section 10.04. Business Liability Insurance. Tenant shall keep in force with a Quali led Carrier, a
policy to cover business liability, including premises operations liability and busin ss inteITUption
liability, in which the limits of coverage shall not be less than $1,000,000.00, single limit ill addition to
Tenant, the policy shall name Owner as an additional insured. Tenant shall continually provide Owner
with a certificate of such insurance, which shall provide that the insurer will give the 0 ner at least 30
days' written notice prior to any cancellation of, lapse or material change in the insurance.
Section 10,05. Indemnification.
Tenant will, subject to the provisions of Section 10.06, indemnify, save harml ss and defend
Owner and its officers, agents and servants, from and against any and all claims, actio , liability and
expense in connection with loss of life, bodily injury and/or damage to property arising from or out of
any occurrence in, upon or at the Leased Premises, or the occupancy or use by Ten nt, its agents,
employees, servants, subtenants, licensees or concessionaires, of the Leased Premises or y part thereof,
or outside the Leased Premises which is occasioned wholly or in part by any willful or gligent act or
omission of Tenant, its agents, employees, servants, subtenants, licensees or concess~on es, unless the
same be caused by the willful or negligent act or omission of Owner, its agents, employees or servants.
16
Section 10.06. Waiver df Subrogation: Limitation ofLiabilitv.
(A) Anything in this Lease to the contrary notwithstanding, it is agreed th t each party (the
"Releasing Party") hereby releases the other (the "Released Party") from any liability w 'cb the Released
Party would, but for this Section 10.05, have had to the Releasing Party during the te of this Lease,
resulting from the occurrence of any accident or occurrence or casualty (i) which is or ould be covered
by an "all-risk" policy (irrespective of whether such coverage is being carried by the Re easing Party), or
(ii) covered by any other casualty or property damage insurance being carried by the R leasing Party at
the time of such occurrence, which accident, occurrence or casualty may have resulted in whole or in part
from any act or neglect of the Released Party, its officers, agents or employe s; PROVIDED,
HOWEVER, the release hereinabove set forth shall become inoperative and null nd void if the
Releasing Party wishes to place the appropriate insurance with an insurance company w ich (a) takes the
position that the existence of such release vitiates or would adversely affect any polic so insuring the
Releasing Party in a substantial manner and notice thereof is given to the Released Part , or (b) requires
the payment of a higher premium by reason of the existence of such release, unless in t e latter case the
Released Party within 10 days after notice thereof from the Releasing Party pays s ch increase in
premIUm.
(B) Anything in this Lease to the contrary notWithstanding, it is agreed tha neither Tenant
nor Owner shall be liable to the other for any damage arising from the willful or egligent act or
omission of any other tenant or occupant of the Shopping Center.
Section 10.07. Notice bv Tenant.
Tenant shall within 24 hours after the occurrence of any casualty damage to or ccidents in the
Leased Premises, give Owner notice of such casualty damage or accident.
ARTICLE XI - UTILITIES
Secti on 11. 0 1. Utili tv Charges.
Tenant shall contract in its own name for and promptly pay all charges for electri ity, gas, water,
sewer, telephone and any other utility used or consumed in the Leased Premises to the con ern furnishing
the same. In the event that separate service arrangements cannot be provided for any of he above, then
the Tenant agrees to pay their proportionate share of the utility charges which shall be coIl cted as part of
the Common Facilities Contribution set forth in Article VII herein.
Section 11.02. Owner's Liabilitv for Interruption.
Owner shall not be liable in any way to Tenant or to any other party occupying ny part of the
Leased Premises for any failure or defect in or of any utility service furnished to the Leas d Premises or
the Common Facilities, by reason of any requirement, act or omission of the public u ility company
serving the Shopping Center with electricity, water or other utility service, or becaus of necessary
repairs or improvements, or by reason of any cause referred to in Section 23.02.
17
ARTICLE XII - ESTOPPEL CERTIFICATE' ATTORNMENT- PRIORITY OF LEA E' RIGIITS OF
MORTGAGEE
Section 12.01. Estop{Jel Certificate.
Tenant agrees, within 10 days after written request by Owner, to execute, a knowledge and
deliver to and in favor of any proposed mortgagee or purchaser of the Shopping Ce reF, an estoppel
certificate, in the form customarily used by such proposed mortgagee or purchaser, evid ncing the status
of performance under this Lease and the terms of this Lease. Tenant agrees, within 10 ys after written
request by Owner, to deliver to Owner a current financial statement of Tenant, duly certified by an
officer thereof (if Tenant is a corporation) and an independent certified public accounta t and such other
financial information of Tenant as Owner shall reasonably request; provided, that the c nfidentiality of
such information is maintained in accordance with Section 3.01.
Section 12.02. Attornment.
Tenant shall, in the event any proceedings are brought for the foreclosure of, 0 in the event of
the exercise of the power of sale under, any mortgage made by Owner covering any part f the Shopping
Center, or in the event of any sale of the Shopping Center, attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as Owner under this Lease. Upon th request of any
interested party, Tenant shall execute, acknowledge and deliver an instrument, in fa and substance
satisfactory to such party, evidencing the attornment provided for in this Section if, a d only if, such
party acknowledges in such instrument, and agrees to be abide by, such party's obligati os as "Owner"
under this Lease, and agrees therein (i) to recognize and abide by Tenant's rights unde this Lease and
(ii) not to disturb Tenant's use or occupancy of the Leased Premises.
Section 12.03. Priority of Lease.
Upon written request of the holder of any first mortgage now or hereafter cove 'ng any part of
the Shopping Center, Tenant will subordinate its rights under this Lease or make this Lea e prior in right
and priority to the lien thereof and to all advances made or hereafter to be made up n the security
thereof, and Tenant shall, within ten (10) days after written demand therefore, execute, acknowledge and
deliver an instrument, in the form customarily used by such encumbrance holder, effectin such priority;
PROVIDED, HOWEVER, at the option of the holder of such mortgage, such holder sh 1 be entitled to
effect such priority by filing a unilateral declaration to that effect with the recorder of dee in the County
and State in which the Leased Premises is located.
Section 12.04. Rights of Owner's Mortgagee.
Within 10 days after demand by the holder of any mortgage covering all or y part of the
Shopping Center, Tenant shall execute, acknowledge and deliver an agreement in favo of and in the
form customarily used by such encumbrance holder, by the terms of which Tenant wi! agree to give
prompt notice to such encumbrance holder in the event of any casualty damage to the Leas d Premises or
in the event of any default on the part of Owner under this Lease, and will agree to allow such
encumbrance holder a reasonable length of time (taking into consideration for the purpose f determining
such permitted length of time any delays encountered by reason of any of the causes referred to in
Section 23.02), after notice to cure or cause the curing of such default before exercising Te ant's rights of
self-help under this Lease, if any, or terminating or declaring a default under this Leas . In addition,
within 10 days after demand by the holder of any such mortgage or after demand by owne , Tenant shall
deliver to such encumbrance holder a current financial statement of Tenant and such ther financial
information as such holder or Owner shall reasonably request; provided, that the confide tiality of such
information is maintained in accordance with Section 3.01.
18
ARTICLE xm - ASSIGNMENT, SUBLETTING AND CORPORATE OWNERSHIP
Section 13.01. Consent Required.
(A) Tenant shall not voluntarily, involuntarily or by operatiopof law assign rencumber this
Lease, in whole orIn part, nor sublet all or any part of the Leased Premises without the prior consent of
Owner in each instance. Notwithstanding any assignment or subletting, Tenant shall re ain fully liable
under this Lease and shall not be relieved from performing any of its obligations h reunder. As a
condition to any assignment of this Lease by Tenant, which is permitted under this Le se, the assignee
thereof shall be required to execute and deliver to Owner an agreement in recordable fo , whereby such
assignee assumes and agrees with Owner to discharge all obligations of Tenant under this Lease.
(B) If Tenant shall request Owner's consent to an assignment of this Lease nd Qwner shall
consent thereto, the assignee ("Assignee") shall pay directly to Owner, as additional re t hereunder, at
such times as the Assignee shall have agreed to pay Tenant, an amount equal to any c nsideration the
Assignee shall have agreed ~o pay Tenant on account of such assignment. If Assignee hall fail to pay
Owner any such consideration when due, such failure shan constitute a default under this ease.
(C) If Tenant shall request Owner's consent to a subletting of the Leased Pre ses or any part
thereof and Owner shall consent thereto, Tenant shall pay Owner, as additional rent, in addition to the
Annual Minimum Rent and other charges payable hereunder, an amount equal to any co sideration paid
by the subtenant to Tenant in excess of (i) the Annual Minimum Rent and other c arges payable
hereunder if all of the Leased Premises are so sublet or (ii) if less than all of the Leased remises are so
sublet, the Annual Minimum Rent and other charges payable hereunder allocable to th portion of the
Leased Premises so sublet based on the number of square feet of Gross Leasable Are in the Leased
Premises so sublet divided by the total number of square feet of Gross Leasable Area in the Leased
Premises prior to such subletting. The foregoing amount shan be determined monthly and aid by Tenant
to Owner on the first day of each calendar month in advance during the term of such subl ase. If Tenant
shall fail to pay Owner any such consideration, such failure shall be a default under this Lase.
Section 13.02. Corporate Ownership.
If at any time during the term a cumulative total of more than 49% of the voting tack of, Tenant
(if Tenant shall be a corporation) shall be transferred, directly or indirectly, by sale, assign ent, gift or in
any other manner, any such transfer shall, unless made with Owner's prior consent (whi h shall not be
unreasonably withheld or delayed), be deemed an unauthorized assignment of this Lease a d a default by
Tenant under this Lease.
Section 13.03. Owner's Rilrht to Assign.
If Owner conveys or transfers its interest in this Shopping Center or in this lease which sale or
transfer may be effected without Tenant's consent), upon such conveyance or transfer, Ower (and in the
case of any subsequent conveyances or transfers, the then grantor or transferor) shall be r leased of and
from all liability with respect to the performance of any covenants and obligations on the art of Owner
to be performed after the date of such conveyance or transfer; it being intended hereby that the covenants
and obligations on the part of Owner to be performed under this Lease shall, subject to th provisions of
Section 21.01, be binding on Owner, its successors and assigns, only during and in r spect of their
respective periods of ownership of an interest in the Shopping Center or in this Lease.
19
ARTICLE XIV - WASTE: HAZARDOUS WASTE' GOVERNMENTAL
REGULATIONS
Section l4.01. Waste or Nuisance.
INSURANCE
Tenant shall not commit or suffer to be committed (i) any waste in or upon the eased Premises
un <:lrjii) _~T?-), nuisance or:my otheL act or thing (W_Qelhcr-.a_mJisance -.Or otherwise~hicbma}'-disturb the
quiet enjoyment of any other tenant or occupant in the Shopping Center or its or their cu tamers or other
invitees.
Section 14.02. Hazardous Waste.
(A) Tenant hereby covenants, represents and warrants that it shall not generate, ansport, handle,
store or otherwise encounter in, on or about the Real Property, any hazardous waste 0 substance (for
purposes of this Section herein called "hazardous waste") as defined by the applicable eder_al, state or
local environmental or occupational standards, including but not limited to material defin d as such in, or
for purposes of, the Comprehensive Environmental Response, Compensation and Liabilit Act of 1980
("CERCLA"), as amended by the Superfund Hazardous Materials Transportation Act (4 US.c. 91802
et seq.), the Resource Conservation and Recovery Act ("ReRA") (42 U.S.c. 91802, et s .), the Federal
Water Pollution Control Act (33 U.S.C. S1251, et gm.), the Safe Drinking Water Act (42 US.c. g300(t),
et gg.), the Toxic Substance Control Act (15 D.S.C. g2601, et gm.), the Clean Air Act ( 2 US.C g7401,
et ~.), or any other federal, state or local statute, ordinance, code, rule, regulation, rder or decree
regulating, relating to or imposing liability or standards of conduct concerning any haz dous, toxic or
dangerous waste, substance, element or material as now or at any time hereafter in effect r amended (for
purposes of this Section herein collectively called the "Laws"), Tenant further covenants represents and
warrants that there will be no underground storage tanks in, on, under, within or about the eal Property.
(B) Tenant shall not use, store or permit to be stored on the Leased Premises ny asbestos in
any form, urea formaldehyde foam insulation, transformers or other equipment which co tains dielectric
fluid or other fluids containing levels of polychlorinated biphenyls in excess of fifty (50) parts per
million. If Tenant shall utilize the Leased Premises for medical office purposes, Tenant hall dispose of
all syringes, blood products, "sharps", medical instruments and all other types of medical aste in a safe,
clean, sanitary manner and in accordance with all applicable laws and regulations.
(C) Tenant covenants, represents and warrants that it will indemnify and hold Landlord
hannless from and against any and all liability , actions, claims, losses, damages and expe ses arising out
of, or in any way relating to, a breach of the representations, warranties, covenants and greements set
forth in this Section, including: (a) claims of third parties (including governmental agencies) for
damages, including personal injury or property damages, penalties, response costs, inju ctive or other
relief; (b) costs or removal and restoration, including fees of attorneys and experts, costs f reporting to
any governmental agency the existence of hazardous substances, hazardous waste, po lutants and/or
contaminants and costs of preparing or causing to be prepared any and all studies, tes s, analyses or
reports in connection with any environmental matter; (c) all expenses or obligations, indu ing attorneys'
fees, incurred at, before and after any trial or appeal therefrom whether or not taxable as c sts. including
attorneys' fees, witness fees, deposition costs and other expenses; (d) all other costs, expenses and
liabilities arising from Tenant's violation of the laws or any other environmental regulatio now in force
or hereafter enacted; and (e) Tenant's disposal of medical waste as set forth in paragraph ( ) above. The
obligations of Tenant as contained in this Section shall survive the termination of the Leas .
20
Section 14.03. Governmental and Insurance Regulations.
Tenant shall, at Tenant's sole cost, comply with all of the requirements of 11 governmental
authorities (including without limitation those requiring replacements, additions, repair and alterations,
[structural or otherwise]), and with all directions, rules, regulations and recommenda ions of Owner's
hazard insurer, now in force, or which may hereafter be in force, pertaining t6 (i) the eased Premises,
(ii) all of Tenant's Property in the Leased Premises and (iii) the use_aIld_9_<:~pan~ of the J"~_<lsed
----pfemises.~- - - ---- ---.. ----------
ARTICLE XV - MERCHANTS ASSOCIATION lNTENTIONALL Y OMITTED
ARTICLE XVI - DESTRUCTION
Section 16.01. Destruction of Leased Premises
(A) If the Leased Premises are damaged or destroyed by fire or other ca ualty insurable
under standard fire and extended coverage insurance so as to become partially or totally ntenantable, the
same, unless this Lease is terminated as provided in paragraph (B), shall be repaired d restored by
Owner and Tenant with due diligence, and during such restoration period, the Annual Minimum Rent
(but not the Annual Percentage Rent) and other charges payable hereunder shall equita ly abate to the
extent the Leased Premises are materially affected thereby. Owner's obligation under tho paragraph (A)
to repair and restore shall be limited to the repair and restoration of those parts of the eased Premises
which were originally constructed and or installed by Owner at its expense including b t not limited to
Owner's Work set forth in Exhibit B. All other repair and restoration shall be the resp nsibility and at
the expense of the Tenant.
(B) If the Leased Premises are damaged or destroyed to the extent the cos of restoration
thereof would exceed 15% of the amount it would have cost to replace the Leased Premis s in its entirety
at the time such damage or destruction occurred, then either party may elect to terminat this Lease by
giving notice to the other party of its election to do so within 30 days after such occu ence. If either
party exercises its right to terminate this Lease, then this Lease shall cease, effective a of the date of
such damage or destruction, and all rent and other charges payable by Tenant shall be adjusted as of that
date.
Section 16.02. Destruction of Shopping: Center.
Notwithstanding anything to the contrary set forth in Section 16.01, in the e ent all or any
portion of the Shopping Center shall be damaged or destroyed by fire or other cause ( otwithstanding
that the Leased Premises may be unaffected thereby), to the extent the cost of restoratio thereof would
exceed 25% of the amount it would have cost to replace the Shopping Center in its ent" ety at the time
such damage or destruction occurred, then either party may terminate this Lease by givin 30 days' prior
notice to the other party of it's election so to do, which notice shall be given, if at all, ithin 90 days
following the date of such occurrence. In the event of the termination of this Lease as aforesaid, this
Lease shall cease 30 days after such notice is given, and the rent and other charges her under shall be
adjusted as of that date.
ARTICLE XVII - EMINENT DOMAIN
Section 17.01. Condemnation of Leased Premises.
21
In the event of, any condemnation or conveyance in lieu thereof of the Lease Premises or the
Shopping Center, or both, whether whole or partial, either party may terminate this ease, and in any
event, Tenant shall have no claim against Owner or the condemning authority for he value of the
unexpired term, and Tenant shall not be entitled to any part of the compensation or aw d. whether paid
as compensation for diminution in value to the leasehold or to the fee of the Leased Pre . ses, and Owner
shall receive the full amount thereof, Tenant hereby waiving any right to any part ther f and assigning
to Owner its interest therein.
ARTICLE XVIII - TENANT'S DEFAULT; AND SECURITY DEPOSIT
Section 18.01. Default by Tenant
If the Annual Minimum Rent, Annual Percentage Rent, additional rent, or yother charge
payable by Tenant under this Lease shall be unpaid on the date payment is required by e terms hereof
and shall remain so for a period of 5 days after Owner gives Tenant notice of such defa It, or if Tenant
fails to perform any of the other terms, conditions, covenants and obligations of this Leas to be observed
and performed by Tenant for more than 21 days after Owner gives Tenant notice of such efault (it being
agreed that a default, other than the failure to pay money, which is of such a character at rectification
thereof reasonably requires longer than said 21 day period: and completes the same wit due diligence),
or if Tenant shall vacate or abandon the Leased Premises (it being agreed that, subject t the provisions
of Articles XVI and XVII and to Section 23.02, Tenant's failure to operate its busines in the Leased
Premises for seven consecutive days or more shall conclusively be deemed an abando ment) or suffer
this Lease to be taken under any writ of execution, attachment or other process of law, or if this Lease
shall by operation of law devolve upon or pass to any other party other than a party, i any, to whom
Tenant is authorized to assign this Lease by the provisions of Section 13.01, or if an "Act of Bankruptcy"
(as defined in Section 18.02) shall occur, or if Owner shall have notified Tenant of Tenan 's default three
(3) or more times in any twelve calendar month period, then, in any of such events, 0 ner shall have,
besides its other rights or remedies, the following immediate rights:
(1) At its option, to terminate this Lease and the term hereby created without ny right on the
part of Tenant to waive the forfeiture by payment of any sum due or by other perla ce of any
condition, term or covenant broken, whereupon Owner shall be entitled to recover, in add'tion to any and
all sums and damages for violation of Tenant's obligations hereunder in existence at t time of such
termination, damages for Tenant's default in an amount equal to the amount of the rent r served for the
balance of the term of this Lease, as well as all other charges, payments, costs and e penses herein
agreed to be paid by Tenant, all discounted at the rate of six percent (6%) per annum to th ir then 'present
worth, less the fair rental value of the Premises for the remainder of said term, also discou ted at the rate
of six percent (6%) per annum to its then present worth, all of which amount shall be i ediately due
and payable from Tenant to Owner.
(2) At its option, by notice to Tenant, to re-enter and take possession of the Lased Premises
without terminating this Lease. No re-entry or taking possession of the Leased Pre ses by Owner
pursuant to this clause (2) shall be construed as an election on its part to terminate this ease unless a
notice of such intention is given to Tenant (all other demands and notices of forfeiture 0 other similar
notices being hereby expressly waived by Tenant).
(3) At its option, to require that upon (i) any termination of this Lease, whet er by lapse of
time or by the exercise of any option by Ow"ner to terminate the same or in any other mann r whatsoever,
or (ii) any termination of Tenant's right to possession without termination of this Leas . Tenant shall
immediately surrender possession of the Leased Premises to Owner and immediately va ate the same,
and remove all effects therefrom. except such as may not be removed under other pro isions of this
Lease.
22
(4) At its option, to make such alterations and repairs as Owner shall d termine may be
reasonably necessary to relet the Leased Premises, and to relet the same or any part ther of for such term
or terms (which may be for a term extending beyond the term of this Lease) and upo such terms and
conditions as Owner in its sole discretion may deem advisable. Upon each reletting, al rentals received
by owner from such reletting shall be applied as follows: first, to the payment of any in ebtedness other
than rentor other charges due under this Lease from Tenant to Owner; secondto ~~e paY~t?~~?fany
reasuna:ble-custrand -expenses of sUCh releTting, lriCIuamg-Erokerage- fees andattorneys' ees and costs of
such alterations and repairs, each of which fees and costs shall be reasonable in amount; and third, to the
payment of rent and other charges due and unpaid hereunder. In no event shall Ten t be entitled to
receive any surplus of any sums received by Owner on a reletting in excess of the ental and other
charges payable hereunder. If such rentals and other charges received from such rele ting during any
month are less than those to be paid during that month by Tenant hereunder, Tenant sh 11 pay any such
deficiency to Owner (notwithstanding the fact that Owner may have received rental 'n excess of the
rental and other charges payable hereunder in previous or subsequent months), such eficiency to be
calculated and payable monthly. Notwithstanding any reletting without termination, 0 ner!naY at any
time thereafter elect to terminate this Lease for such previous breach in the manner rovided in this
Section.
(5) If Tenant shall default in the payment of the rent herein reserved or the payment
of any other sums due hereunder by Tenant, Tenant hereby authorizes and mpowers any
Prothonotary or attorney of any court of record to appear for Tenant in any and al actions which
may be brought for said rent and/or said other sums; and/or to sign for Tenant an agreement for
entering in any competent court an amicable action or actions for the recovery of said rental
and/or other sums; and in said suits or in said amicable action or actions to co. fess judgment
against Tenant for all or any part of said rental and/or said other sums, including ut not limited
to the amounts due from Tenant to Owner under subparagraphs (1), (2), (3) an or (4) of the'
Paragraph; and for interest and costs, together with any attorneys' commission f: r collection of
ten percent (10%). 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 rental an or other sums
shall fall due or be in arrears, and such powers may be exercised as well after the e iration of the
initial term of this Lease and/or during any extended or renewal term of his Lease a dlor after the
expiration of any extended or renewal term of this Lease.
'J l
(6) When this Lease and the term of any extension or renewal thereof s all have been
tenninated on account of any default by Tenant hereunder, and also when the tenn ere by created
or any extension or renewal thereof shall have expired, it shall be lawful for any a tarney of any
court of record to appear as attorney for Tenant as well as for all persons claiming y, through or
under Tenant, and to sign an agreement for entering in any competent court an ami able action in
ejectment against Tenant and all persons claiming by, through or under Te and therein
confess judgment for the recovery by Owner of possession of the Premises, for wh ch this Lease
shall be his sufficient warrant; thereupon, if Owner so desires, an appropriate wri of possession
may issue forthwith, without any prior writ or proceeding whatsoever, and provided hat if for any
reason after such action shall have been commenced it shall be determined that po session of the
Premises remain in or be restored to Tenant, Owner shall have the right for the sa e default and
upon any subsequent default or defaults, or upon the tennination of this Lease or Te nt's right of
possession as hereinbefore set forth, to bring one or more further amicable action or actions as
hereinbefore set forth to recover possession of the Premises ~nd c,\nfess judgment fo the recovery
of possession of the Premises as hereinbefore provided. 0.. W
'T'1 ( enant)
23
(7) In any amicable action of ejectment and/or for rent and/or othe sums brought
hereon, Owner shall first cause to be fIled in such action an affidavit made by Ower or someone
acting for Owner, setting forth the facts necessary to authorize the entry of jud ent, of which
facts such affidavit shall be prima facie evidence, and if a true copy of this Lease ( nd of the truth
of the copy such affidavit shall be sufficient evidence) shall be filed in such suit, acti nor actions, it
~:~~';\~h:e;::~y,:~~=:,:~:';.l as a ~nt of attorney' any ~_or C nrt,_cnst-"Dlor
(8) At its option, to collect from Tenant any other loss or damage which 0
by reason of any breach and any diminished value of the Leased Premises resulting from
Tenant wjj:- any "otice to quit reqnired by any law now in force of ber after enacted.
i~'
, -
~-c Tenanfj
Nothing in this Section shall be deemed to limit Owner's rights and remedies i the event of a
default by Tenant, and the Owner's rights and remedies set forth in this Lease shall b in addition to
those available to Owner at law or in equity.
Section 18.02. Bankruptcy.
(A) If at any time prior to or after the commencement of the term of this Leas there shall be
filed by Tenant or Guarantor, in any court pursuant to any statute either of the United tates or of any
State, a petition in bankruptcy (including, without limitation, a petition for liquidation, re rganization or
for adjustment of debts of an individual with regular income), or if any case, proceeding or other action
shall be commenced seeking to have an order for relief entered against Tenant or Guarant as a debtor in
bankruptcy proceedings or to adjudicate Tenant or Guarantor a bankrupt or insolve t, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or i s debts under
any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking ppointment of
a receiver, trustee, custodian or other similar official for it or for all or any substantial part f its property,
and such case, proceeding or other action results in the entry of an order for relief or is not dismissed
within 30 days of the filing thereof, or if Tenant or Guarantor becomes insolvent or i generally not
paying or admits in writing its inability to pay its debts as they mature, or makes an assi ent for the
benefit of creditors or petitions for or enters into an arrangement with its creditors or a custodian is
appointed or takes possession of Tenant's or Guarantor's property (whether or not a judi ial proceeding
is instituted in connection with such arrangement or in connection with the appoin ent of such
custodian), or if Tenant or Guarantor shall take any action to authorize or in contemplatio of any of the
events set forth above (each of the foregoing events to be hereinafter referred to s an "Act of
Bankruptcy"), then, in addition to Owner's other rights and remedies under this Lease d applicable
law, this Lease shall, at Owner's option (and if permitted by law), be terminated, in whic event neither
Tenant nor Guarantor, nor any person claiming through or under Tenant or Guarantor or b virtue of any
statute or of an order of any court, shall be entitled to possession of the Leased Premises, nd Owner, in
addition to the other rights and remedies given by this Lease, or by virtue of any statute r rule of law,
may retain as liquidated damages any rent, Security Deposit or moneys received by Own r from Tenant
or others in behalf of Tenant. All rent, additional rent and other charges payable by Te ant under this
Lease shall constitute rent for the purpose of applying the provisions of Section 502(b)(7) of the Federal
Bankruptcy Code.
(B) In the event an act of bankruptcy shall occur and this Lease is not terminat d pursuant to
the provisions of paragraph (A), the parties agree that:
24
(i) If there shall be a default in the payment of nual Minimum
Rent or any additional rent, or a default in the observance or pe ormance of any
other provision of this Lease binding on Tenant, Owner sh 11 be entitled to
immediately discontinue furnishing any utilities and other se ices it has been
providing to the Leased Premises, until such time as such de aults have been
fully cured, it being agreed that the foregoing action by Owne sball in no way
________---Cause..or-result-in-al1.y-a.eate-mBnt-ef-Anuual--M-iuimum-Rent-o y-othercharge
payable by Tenant during the continuance of the term of this Le se.
(ii) If the Lease is assumed by a trustee in bankrupt y, and assigned
by the trustee to a third party, then such party shall (a) execu and deliver to
Owner an agreement in recordable form whereby such party co firms that it has
assumed and agrees with Owner to discharge all obligations (in luding, without
limitation, the provisions of Article VI respecting the Permi ted Use of the
Leased Premises and the manner of operation thereat) binding n Tenant under
this Lease, (b) represent and warrant in writing to Owner that uch party has a
net worth and operating experience at least comparable to th t possessed by
Tenant named herein and Guarantor as of the execution of this Lase, (c) deposit
with Owner a Security Deposit and advance rent equal to that in tially deposited
by Tenant named herein, and (d) grant Owner, to secure the perl rmance of such
party's obligations under this Lease, a security interest' such party's
merchandise, inventory, personal property, fixtures, furnishings, nd all accounts
receivable (and in the proceeds of all of the foregoing) wit respect to its
operations in the Leased Premises, and in connection therewith, uch party shall
execute such security agreements, fmancing statements and other documents (the
forms of which are to be designated by Owner) as are necessary 0 perfect such
lien.
(iii) Lease shall be deemed a lease of "Nonresidential Real Property"
within a "Shopping Center" for the purpose of Section 365 f the Federal
Bankruptcy Code.
(C) Any person or entity to which this Lease is assigned pursuant to the pr visions of the
Bankruptcy Code, 11 U.S.C. Section 101, et seq. (the "Bankruptcy Code") shall be d emed without
further act or deed to have assumed all of the obligations arising under this Lease on and fter thedate of
such assignment. If this Lease is assigned to any person or entity pursuant to the pr visions of the
Bankruptcy Code, any and all monies or other considerations payable or otherwise to delivered in
connection with such assignment shall be paid or delivered to Owner, shall be and remai the exclusive
property of Owner and shall not constitute property of Tenant or of the estate of Te ant within the
meaning of the Bankruptcy Code. Any and all monies or other considerations consti ting Owner's
property under the preceding sentence not paid or delivered to Owner shall be held in trust for the benefit
of Owner and be promptly paid or delivered to Owner.
25
Section 18.03. Owner's Right to Cure Defaults.
If Tenant fails to perform any agreement or obligation on its part to be perf rmed under this
Lease, Owner shall have the right (i) if no emergency exists, to perform the same afte giving 15 days'
notice to Tenant; and (ii) in any emergency situation, to perform the same immediately ithout notice or
delay. For the purpose of rectifying Tenant's defaults as aforesaid, Owner shall have he right to enter
the Leased Prerni ses.-Jenant-shal1.,oo--clemand,-reime-urse-Bwner-f-orthe-costs-ami-e incurred 5y
Owner in rectifying Tenant's defaults as aforesaid, including reasonable attorneys' fees. Owner shall not
be liable or in any way responsible for any loss, inconvenience, annoyance, or da ge resulting to
Tenant or anyone holding under Tenant for any action taken by Owner pursuant to this S ction.
Section 18.04. Security De-posit.
(A) Tenant, contemporaneously with the execution of this Lease, has depos ted with Owner
the sum designated as the "Security Deposit" in A-I of the Basic Lease Provisions, rec ipt of which is
hereby acknowledged. The Security Deposit shall be held by Owner, without liabilit for interest, as
security for the faithful performance by Tenant of all of the terms, covenants and eonditi ns of this Lease
by Tenant to be performed. Owner shall not be required to hold the Security Deposit as separate fund,
but may commingle it with other funds. If after the execution of this Lease Agreem t and Owner's
receipt of the Security Deposit, Tenant would fail to commence under the terms of this Lase Agreement,
Tenant shall forfeit the Security Deposit, which shall be retained by Owner, this Lease greement shall
terminate and all of the Owner and Tenants obligations hereunder shall become null and v id.
B. If at any time during the term any Annual Minimum Rent, Annual Pere ntage Rent, or
additional rent payable by Tenant shall be overdue, or if Tenant fails to perform any of he other terms,
covenants or conditions to be performed by Tenant, then Owner, at its option, may appro riate and apply
all or any portion of the Security Deposit to the payment of any such overdue Annual inimum Rent,
Annual Percentage Rent, or additional rent and to the compensation of Owner for I ss or damage
sustained by Owner due to a breach by Tenant as aforesaid, without prejudice to Owner's ther remedies.
Should all or any part of the Security deposit be appropriated and applied by Owner as ovided above,
then Tenant shall, upon demand of Owner, forthwith remit to Owner a sufficient am unt in cash to
restore the same to the original sum deposited. Should Tenant comply with all of the te s, covenants
and conditions of this Lease binding on Tenant, the Security Deposit shall be returned i full to Tenant
within 60 days after the later of the following dates: (i) the date of expiration of the term or (ii) the date
Tenant shall deliver to Owner such inspection reports as Owner shall require setting forth hat the'+-eased
Premises were surrendered in accordance with Section 11.02 of this Lease
ARTICLE XIX - ACCESS BY OWNER
Section 19.01. Right of Entry.
Owner and its designees shall have the right to enter the Leased Premises dur ng reasonable
business hours (except in the event of emergency. when Owner may enter at any time) for an lawful
purposes (including the right to show the Leased Premises to prospective purchasers of the Shopping
Center, and, during the last six months of the term, the right to show the Leased Premises 0 prospective
tenants) and to whatever extent necessary or appropriate to enable Owner to exercise a I of its rights
under this Lease (including without limitation the right to perform certain provisions of this Lease on
Tenant's behalf as set forth in Section 18.02) and to carry out all of Owner's obligati ns hereunder.
Owner and Owner's representatives shall also have the right to enter the Leased Premise and to erect
scaffolding and barricades around the same (but not so as to preclude entry thereto) in orde to make such
repairs, alterations, improvements and additions to the building of which the Leased Premi es form a part
and the foundations and walls of the Leased Premises as Owner may deem necessary or esirable (and
26
Owner shall be allowed to take all equipment and material upon the Leased Premis which may be
required therefore), but Owner shall use reasonable efforts consistent with accepted con truction practice
to minimize interference to Tenant's business caused by reason thereof. The exercise by Owner of its
rights of entry and other rights granted under this paragraph shall not constitute an evicti n of Tenant and
the rent payable under this Lese shall not abate by reason thereof. Owner shall provide r asonable notice
to Tenant prior to such entry.
ARTICLE XX - ARBITRATION; RIGID' TO APPEAL
Section 20.01 - Arbitration.
Any disagreement between Owner and Tenant with respect to the interpretation r application of
this Lease, or the obligation of the parties hereunder, shall be determined by arbitration u less the parties
otherwise mutually agree in writing. Owner and Tenant shall agree upon one arbitrator, otherwise there
shall be three (3), one named in writing by the Owner and one named in writing by the T nanL within ten
(10) days after notice of arbitration is served by either upon the other, and a third arbitr tor selected by
those two arbitrators within ten (10) days thereafter. No one shall serve as an arbitrator w 0 is in any way
financially interested in this Lease or in the affairs of either party hereto. This agree ent to arbitrate
shall be specifically enforceable under the prevailing arbitration laws. The arbitrator or rbitrators shall
have the power to award to either party to the dispute such sums, costs, expenses, and a torney's fees as
the arbitrator or arbitrators may deem proper. The award rendered by the arbitrator or arb trators shall be
appealable to a court of competent jurisdiction within thirty (30) days of notice of the ar itrators' award.
Such appeal shall be prosecuted without delay and as rapidly as possible.
Section 20.02 - Waiver of Trial By Jury.
THE PARTIES HEREBY WANE TRIAL BY JURY IN ANY ACTION, ROCEEDING,
COUNTERCLAJ1v1 OR APPEAL BROUGIIT BY EITHER PARTY AGAINST THE OT R ON ANY
MATTER. Tenant agrees that any action brought in connection with this Lease may b maintained in
any court of competent jurisdiction in the Commonwealth of Pennsylvania. Tenant h reby appoints
Owner as agent for the purpose of accepting service of any process, subject only to the condition that
Owner promptly send Notice of such process to Tenant at the address of Tenant set fort in A-I of the
Basic Lease Provisions. In case suit shall be brought because of the breach of any agreement or
obligation contained in this Lease on the part of Tenant or Owner to be kept or performe . and a breach
shall be established, the prevailing party shall (to the extent permitted by law) be entitle to reC0ver all
expenses incurred therefore, including reasonable attorneys' fees. Owner's rights and re edies shall be
cumulative and may be exercised and enforced concurrently. Any right or remedy conferr d upon Owner
under this Lease shall not be deemed to be exclusive of any other right or remedy Owner ay have. All
rights and liabilities herein given to or imposed upon the respective parties hereto shall, ex ept as may be
otherwise herein provided, extend to and bind the respective heirs, executors, administrat rs, successors
and assigns of the said parties; and if there shall be more than one Tenant, they shall all b bound jointly
and severally by the terms, covenants and agreements herein contained. This paragr ph shall only
become effective in the event that there is an appeal of an arbitrators award.
ARTICLE XXI - OWNER'S LIABll...ITY
Section 21.01. Limitations on Liability
(A) Anything contained in this Lease to the contrary notwithstanding, Ten t agrees that
Tenant shall look solely to the fee simple interests or leasehold estate of the Owner in the Shopping
Center for the collection of any judgment (or other judicial process) requiring the paymen of money by
Owner in the event of any default or breach by Owner with respect to any of the terms and provisions of
27
this Lease to be observed or performed by Owner, subject, however, to the prior right of the holder of
any mortgage covering the Shopping Center, and NO OTHER ASSETS OF OW R SHALL BE
SUBJECT TO LEVY EXECUTION OR OTHER JUDICIAL PROCESS FOR THE ATISFACTION
OF TENANT'S CLAIM AND OWNER SHALL NOT BE LIABLE FOR ANY SUC DEFAULT OR
BREACH E PT TO THE EXTENT OF OWNER'S INTEREST IN THE SHO lNG CENTER.
(Tenant)
n~~_---'1
(B) Except where Owner has breached or failed to abide by its obligation set forth in this
Lease, Owner shall not be liable for any damage occasioned by failure of the Premises t be in repair, nor
for any damage done or occasioned by or from plumbing, gas, water, sprinkler, steam r other pipes or
sewerage, or the bursting, leaking or running of any tank, washstand, water closet r waste pipe in,
above, upon or about the Premises or improvements constituting a part thereof, nor for any damage
occasioned by water, snow or ice being upon or coming through the roof, skylig s, trap door or
otherwise.
(C) In the event that in this Lease it is provided that the exercise of any ri ht by Tenant or
the performance of any obligations of Tenant shall be subject to the consent or approv 1 or Owner and
that the consent or approval of Owner shall not be unreasonably withheld or delayed, th n in any case in
which Owner shall withhold or delay its consent, Tenant hereby waives any and all righ s it may have to
recover (and Tenant shall not seek in any proceeding) any damages from Owner on ac ount thereof; it
being agreed that Tenant's sole remedy for Owner's withholding or delaying of c nsent shall be
injunctive relief (without any right to damages).
CD) Notwithstanding anything to the contrary contained in this Lease, if Ower shall elect to
provide security service then (i) any security service that may be provided by Owner is intended solely
for the protection and benefit of the Common Facilities and not for the protection 0 benefit of the
Leased Premises or any other premises; and (ii) Owner shall not be liable in any mann whatsoever to
Tenant or to any third party by reason of Owner's act or failure to act in providing or maintaining
security in the Shopping Center.
Section 21.02. Owner's Obligations With Respect to Future Building Areas.
Notwithstanding anything set out in this Lease to the contrary, it is understood an agreed that (i)
Tenant will not cancel this Lease nor be entitled to claim any actual or constructive evicti n because of a
default of Owner either by act or omission under this Lease when such act or omissio relates to any
Future Building Area shown on Exhibit A, and Tenant will not abate rentals or otherwise credit or offset
damages against rental under this Lease because of any act or omission of Owner under t is Lease which
relates to any Future Building Area shown on Exhibit A, but shall not be construed as waiver of any
rights Tenant may have in person against or as a waiver of any remedies by way of i junctive relief
which Tenant may have against Owner (other than one who becomes such after the for closure of any
first mortgage covering any part of the real property which is contained within the Shop ing Center, or
after the execution of a deed in lieu thereof); and (ii) the restrictions set out in this Leas, if any, to the
extent the same relate to any Future Building Area shown on Exhibit A, and all obliga ions of Owner
with respect to such restrictions shall absolutely and automatically terminate for all pu oses from and
after the date the holder of any first mortgage affecting the real property which is cont ned within the
Shopping Center, forecloses its mortgage or obtains a deed in lieu thereof. For purposes f this Section,
an "Outlot" shall be considered the same as a Future Building Area.
ARTICLE XXII - HOLDING OVER
Section 22.01. Holding Over.
28
In the event Tenant remains in possession of the Leased Premises after the xpiration of the
tenancy created hereunder, and without the execution of a new lease, Tenant, at the ption of Owner,
shan be deemed to be occupying the Leased Premises as a tenant from month-to-month, at a rate equal to
125% of the Annual Minimum Rent for the last Lease Year of the term, subject to all the other
conditions, provisions and obligations of this Lease insofar as the same are applicab to a month-to-
month tenancy,
___.__._____~__,________.._____~u_
Section 2To2 Time is of the Essence.
Time is of the essence of each provision of this Lease.
Tenant hereby waives notice to quit the Premises at the expiration of the term of this Lease or
any earlier termination, and this Lease shall constitute sufficient notice to quit witho t any obligation
upon Owner to provide Tenant with any additional notice thereof.
ARTICLE xxm - WAIVER; NOTICE; DEFINITIONS; MISCELLANEOUS.
Section 23.01. Waiver.
No delay or omission in the exercise of any right or remedy of Owner on any d fault by Tenant
shall impair such a right or remedy or be construed as a waiver. No covenant, term or ondition of this
Lease shall be deemed to have been waived unless such waiver be in writing signed by t e party charged
therewith.
'/ Section 23.02. Force Majeure.
'\,
"
In the event either party hereto shall be delayed or hindered in or prev nted from the
performance of any act required under this Lease by reason of strikes, lockouts, labor tr ubles, inability
- to procure materials, failure of power, restrictive governmental law or regulations, riots, i surrection, war
or other reason of a like nature not the fault of the party delayed in performing wor or doing acts
required under the tenns of this Lease, then performance of any such act shall be exten d for a period
equivalent to the period of such delay. The provisions of this Section shall not (a) op rate to excuse
Tenant from prompt payment of Annual Minimum Rent or any other payment required y the terms of
this Lease, and (b) be applicable to delays resulting from the inability of a party to obtain financing or to
proceed with its obligations under this Lease because of a lack of funds.
Section 23.03. Notices and Payments.
(A) Whenever any notice, consent, approval or authorization ("Notice") s required or
pennitted under this Lease, the same shall be in writing and all oral notices, consents, approvals and
authorizations shall be of no effect. All Notices by Tenant to Owner shall be sent to Own r by registered
or certified mail (return receipt requested), postage prepaid, or by a nationally recogn zed overnight
courier service (Federal Express, AirBorne, UPS Next Day Air or similar) at the "Addr ss of Owner"
designated in Section A-I of the Basic Lease Provisions, or to such other addressees) as 0 ner may later
designate in writing (including, without limitation, any notice which Tenant shall be re uired to give
Owner's mortgagee pursuant to Section 12.04). Until Owner is notified otherwise by Ten t, all Notices
by Owner to Tenant shall be deemed to have been duly given if sent by registered or certified mail
(return receipt requested), postage prepaid, or by a nationally recognized overnight c urier service
(Federal Express, AirBorne, UPS Next Day Air or similar) to Tenant at the "Addre s of Tenant"
designated in Section A-I of the Basic Lease Provisions. In the case of notices sent by ove ight courier,
delivery shall be deemed effective one day after such notice is sent. Until otherwise noti led in writing
by Owner, Tenant shall pay all rent and other sums required to be paid by it under this Lase by check
29
payable to the order of Owner and shall deliver the same, together with all sales repo s required under
Article ill and all certificates of insurance required to be furnished by Tenant pursua t to Article X, to
the address of Owner designated in Section A-I of the Basic Lease Provisions. '
(B) All Notices shall be effective upon being deposited in the United Sates mail in the
manner prescribed in paragraph (A) of this Section. However, the time period in which response to any
such. N oti<=.~_m\l~ _ huiyeIl shalLc.Qmmence.-1orurLfr--Om.t-he-date--Gf-F~i}lt---B:Y--t-he--acld ;essee-t-hereof-as
shown on the return receipt of the Notice. Rejection or other refusal to accept or the i bility to deliver
because of changed address of which no Notice was given, shall be deemed to be receip of the Notice as
of the date of such rejection, refusal or inability to deliver.
Section 23.04. Definitions.
(A) The term "calendar year" shall mean a period of 12 consecutive full alendar months,
commencing January 1 and ending December 31.
(B) The term "Guarantor" as used in this Lease shall be deemed to mean ny person (and
their spouse, if any), partnership, corporation or other entity which has undertak n, by separate
instrument, endorsement on this Lease or in any other manner, to warrant, agree or g arantee that the
obligations of Tenant, or any portion thereof, shall be performed by Tenant.
(C) The term "Gross Leasable Area" shall mean the aggregate floor area wi 'n the exterior
faces of the exterior walls (except party walls as to which the center thereof, instead of t e exterior faces
thereof, shall be used). Changes in Gross Leasable Area occurring during any calendar month shall be
effective on the first day of the next succeeding calendar month and, unless otherwise he ein specified to
the contrary, the total number of square feet of Gross Leasable Area in effect for any cal ndar year shall
be the average of the number of square feet of Gross Leasable Area on the fIrst day 0 each calendar
month in such calendar year.
(D) The term "including" as used in this Lease shall mean "including without imitation".
(E) The term "Interest Rate" shall mean a rate of interest, per annum, equal 0 the lessor of
(1) the highest lawful rate of interest that may be charged Tenant under the laws of the St te in which the
Leased Premises is located or (ii) two percent (2%) in excess of the "Effective Rate" of Case Manhattan
Bank, N.A., New York, New York (or its successor) (the "Bank") initially determined as f the ~te any
rent, additional rent or other payment under this Lease is due and for which interest at the terest Rate is
charged and thereafter adjusted daily; PROVIDED, HOWEVER if the Bank should cea e to exist as a
viable commercial bank, then the "Effective Rate" of any commercial bank selected by 0 er and having
capital and surplus of at least $50,000,000.00 shall be used to determine the Interest te. The term
"Effective Rate" shall mean the rate of interest announced by the Bank or other commercia bank selected
by Owner as aforesaid, as the case may be, as its prime lending rate. The Effective R te shall be as
announced by the Bank notwithstanding that the Bank may actually charge other rates, and a written
statement from the Bank or any national investment brokerage fIrm or national bank s to what the
Effective Rate was on any given day shall be deemed conclusive.
(F) The term "Lease Year" shall mean a period of twelve consecutive full ca endar months.
The first Lease Year shall begin on the date of commencement of the term if such date of c mmencement
shall occur on the first day of a calendar month; if not, then on the first day of the calen ar month next
following such date of commencement. Each succeeding Lease Year shall comme ce upon the
anniversary date of the first Lease Year.
30
(G) The term "Mortgage" shall include a deed of trust. The term "mortgage" shall mean the
holder of a mortgage and beneficiary under a deed of trust.
(H) The term "Tenant's Percentage Share" shan mean the Tenant's proporti nate share based
on the calculated percentage of Tenant's Gross Leasable Area as herein defined in reI tion to the total
gross leasable area of the- shopping center.
(I) The word "Tenant" shall mean each and every person or party men oned as Tenant
herein, and if there shall be more than one Tenant, any Notice required or permitted by he terms of this
Lease may be given by or to anyone thereof and shall have the same force and effect as 'f given by or to
all thereof.
(J) The word "term" shall mean the period from the date of the commencem nt of this Lease
to the expiration or sooner termination thereof, including any extension thereof, all as her in provided.
Section 23.05. Miscellaneous.
(A) Recordin?: of Lease. Neither party shall record this Lease in its entirety. However, upon
the request of either party, the other party shall join in the execution of a memorand m or so-called
"short form" of this Lease for the purpose of recordation.
(B) Obligations Surviving Termination. All obligations of Tenant and Owne which by their
nature involve performance, in any particular, after the end of the term, or which cannot b ascertained to
have been fully performed until after the end of the term, shall survive the expir tion or sooner
termination of the term.
(C) Governing Law and Jurisdiction. The laws of the Commonwealth of Pe nsylvania shall
govern the validity, performance and enforcement of this Lease.
CD) No Accord And Satisfaction. No payment by Tenant or receipt by 0 ner of a lesser
amount than the monthly rent and other charges, nor shall any endorsement or statement n any check or
on any letter accompanying any check be deemed an accord and satisfaction.
(E) Alterations And Amendments. Except as herein otherwise expressl provided, no
subsequent alteration, amendment, change or addition to this Lease, nor any surrender of the term, shall
be binding upon Owner or Tenant unless reduced to writing and signed by them. -
CF) No Partnership. Owner does not in any way or for any purpose beco e a partner of
Tenant in the conduct of its business or otherwise, nor a joint venturer or a member of a oint enterprise
with Tenant.
CG) Withholding Consent. Wherever in this Lease a party's consent or appro al is required,
such approval may be withheld arbitrarily unless otherwise herein specifically provided to he contrary.
(H) Ca{ltions; Article Numbers. The captions, section numbers, article nurn ers and index
appearing in this Lease in no way define, limit, construe or describe the scope or intent 0 such sections
or articles of this Lease. The language in all parts of this Lease shall in all cases be cons ed as a whole
according to its fair meaning, and not strictly for not against either Owner or Tenant, and should a court
be called upon to interpret any provision hereof, no weight shall be given to, nor shall any onstruction or
interpretation be influenced by, any presumption of preparation of a lease by Owner or by enant.
31
(1) Guaranty. At the time of executing this Lease, Tenant shall provided t Owner a signed
Guaranty of Lease including the signature of the spouse, if any, in form and substan e as set forth in
Exhibit D hereto. Each Guarantor shall provide Owner with an annual financial stateme t upon request.
(1) Severability. In the event that one or more provisions of this Lease sha 1 be found to be
unenforceable at law or in equity, the remainder of the Lease shall not be affected and sh 11 remain in full
force a.nd~ffect~ ---- -
(K) Successors and Assi~s. This Lease shall be binding upon and shan in re to the benefit
of the parties hereto and their respective legal representative, heirs, successors and assi s.
(L) Tenant's Corporate Authority. If Tenant is a corporation, it shall, conc rrendy with the
signing of this Lease, furnish to Owner certified copies of the resolutions of its Board 0 Directors (or of
the executive committee of its Board of Directors) authorizing Tenant to enter into this Lase; and it shall
furnish to Owner proof that Tenant is a duly organized corporation under the laws 0 the state of its
incorporation, is qualified to do business in the Pennsylvania, is in good standing u er the laws of
Pennsylvania, and has the power and authority to enter into this Lease, and that all orporate action
requisites to authorize Tenant to enter into this lease has been duly taken.
(M) Brokers. Except as set forth below, Tenant represents and warrants tha
with any broker in respect to this Lease, and agrees to defend, indemnify and save
against all demands, claims and liabilities arising out of any dealings between Tenan
broker in respect to this Lease: Rothman, Schubert & Reed Realtors
it has not dealt
wner harmless
and any other
THIS LEASE CONSTITUTES THE ENTIRE AGREEMENT
THIS LEASE AND THE EXH1BITS AND RIDER, IF ANY, ATTACHED HE TO, IS THE
COMPLETE AGREEMENT BETWEEN OWNER AND TENANT CONCERNING HE LEASED
PREMISES AND THE SHOPPING CENTER. THERE ARE NO ORAL A REEMENTS,
UNDERSTANDINGS, PROMISES OR REPRESENTATIONS BETWEEN OWNER TENANT
AFFECTING THIS LEASE. ALL PRIOR NEGOTIATIONS AND UNDERSTAND GS, IF ANY,
BETWEEN THE PARTIES HERETO WITH RESPECT TO THE LEASED PREMIS S AND THE
SHOPPING CENTER SHALL BE OF NO FORCE OR EFFECT AND SHALL NOT BE USED TO
INTERPRET TillS LEASE.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
written.
WITNESS:
'~ ~DbL--
ATTEST:
"---''i\LltLt''-'-iJtG~'~''-
-~-- - ,)
i j
'./
OWNER:
Rothman, Schubert & Reed, a Pennsylva a
General ~ership ~
BY:~~
Samuel L. Reed, Attorney-in-Fact pursu
Attorney dated August 21, 1996, and ree
Book 528, Page 480.
TENANT~'l\ . \:)'i\. \. ~ '{\J~
Massimo' -', c.
\
\
By:
(SEAL)
t to Power of
rded in Misc.
(SEAL)
32
EXHIBIT B
OWNER'S WORK
Executed with Lease dated 1) \JV 1) , 2004, between Will' am F. Rothman,
Charles F. Schubert & Samuel L. Reed, Co-Partners, tJdIb/a Rothman, Schubert & Ree , a Pennsylvania
General Partnership, as Owner and Massimo Napoli, Inc., as Tenant.--
Owner agrees, at its expense, to deliver the Leased Premises to Tenant with th following work
set forth below. Owner has not agreed to perform any other work in the premises, an all other work
necessary to complete the Leased Premises shall be done at Tenant's sole cost and expens .
Owner shall provided Tenant with a "pure vanilla box" which shall includ the fol1owing
work/construction to the Leased Premises:
1. Four (4) walls, W' dry-walled and primed.
2. 2x4 grid ceiling with fluorescent lighting through out.
3. HV AC--heated and cooled with roof top units, gas :fIred heat, and electric cooling.
Cooling based on one (1) ton per 400 square feet, turned over in good working or er.
4. Two (2) bathrooms with standard plumbing in compliance with
existing rough-in locations.
A in currently
5. One (1) hot water heater for bathrooms only.
6. 200 amp electrical service with miscellaneous receptacles through out as equired by
Code.
7. Concrete flooring, 4" thick, 3000 psi.
8. Glass front, all windows and maintenance doors to be aluminum as manu ctured by
Kawaneer or equivalent.
9. Water, sewer and gas to be supplied at rear of property.
10. Demising wall.
Tenant shall be responsible for build-out, floor covering, additional plumbing and addit onal hot water
heater to service the Leased Premises and such other work necessary to complete the Leas d Premises all
at Tenant's sole cost and expense and not without Owner's approval.-
33
EXHIBIT C
RULES AND REGULATIONS
Tenant shall at all times during the term of the Lease:
1. Obs~rv_e an traffic regulations, including posted speed restrictions and warnin sand stop- signs.
Owner shall have the right of enforcing these regulations and of prohibiting use of access streets, service driveways
and parking areas to violators.
2. Not permit smoking in the Leased Premises.
3. Use, maintain and occupy the Leased Premises in a careful, safe, proper and la ful manner, keep
the Leased Premises and its appurtenances, including adjoining areas and sidewalks, in a clean and afe condition.
4. Keep the sidewalks and areas contiguous to the Leased Premises free of ice, sno and litter.
5. Keep all glass in the doors and windows of the Leased Premises clean.
6. Not, without prior written consent of the Owner, place, maintain or sell any m rchandise in any
vestibule or entry to the Leased Premises, on the sidewalks adjacent to the premises, or elsewhere on the outside of
the Leased Premises.
7. Keep the Leased Premises clean, orderly and in sanitary condition, free of insec , rodents, vennin
and other pests, and if by reason of any infestation of the Leased Premises by insects, rodents, ver in or other pests,
any other store in the Shopping Center becomes infested by any such condition, Tenant shall b responsible for
exterminating any such condition in other infested stores.
8. Not permit undue accumulations of garbage, trash, rubbish and other refuse n or around the
Leased Premises, keep refuse in closed containers within the interior of the premises or a designat d dumpster until
removed, and arrange for regular removal of refuse at its expense.
9. Not use, permit or suffer the use of any apparatus or instruments for musica or other sound
reproduction or transmission in such manner that the sound emanating therefrom or caused thereb shan be audible
beyond the interior of the Leased Premises.
10. Not load or unload fixtures or merchandise from any premises entrance except he rear delivery
entrance.
11. Not deliver or suffer or permit delivery of merchandise to, or collection of refuse om, the Leased
Premises after 11:00 a.m. on any day.
12. Light the show windows and exterior signs of the premises to the extent that Own may from time
to time require.
13. Keep all mechanical apparatus free of vibration and noise, which may be transm tted beyond the
confines of the Leased Premises.
14. Not cause or permit objectionable odors to emanate or be dispelled from the premi es.
15. Not overload the floors or electrical wiring and not install any additional ele trical wiring or
plumbing without Owner's prior written consent.
16. Not use show windows in the Leased Premises for any purpose other than display of merchandise
for sale in a neat and attractive manner.
34
17. Not conduct, permit or suffer any public or private auction sale to be conduc ed on or from the
Leased Premises.
18. Not solicit business in the corrunon areas of the Shopping center or distribute and bills or other
advertising materials in the common areas, and if this provision is violated Tenant shall pay wner the cost of
collecting same from the common areas for trash disposal.
19. Automobiles belonging to Tenant, its employees and invitees, shall be parked 0 ly in the areas that
may be designated by Owner, subject to the provisions of this Lease.
20. Doors in the Leased Premises shall not be covered or obstructed by Tenant.
21. Water closets and other plumbing shall be used for no other purpose than th se for which they
were intended and no sweepings, rubbish, rags, or improper articles and materials shall be thr wn therein. It is
recognized by the parties that chemicals, paints and thinners are especially injurious to the nctioning of the
property's sewage disposal system and, without limitation, shall not be disposed of in such sewage ystem.
22. No signs, advertisements or notices of any kind shall be painted or affixed t any part of the
outside of the Leased Premises without the prior written permission of Owner.
23,
Premises.
No person of disorderly character will be allowed to frequent or remain on or about the Leased
24. No nuisance, public or private, shall be created or permitted in the demised remises and the
Leased Premises shall be conducted so as that no annoyance is caused to Owner, Owner's employe s or other tenants
of the Owner. It is recognized that the Leased Premises are part of a Shopping Center in which nu erous tenants are
located and that absolute supervision of the use of the Leased Premises is necessary in order to fficially maintain
and operate an entire Shopping Center, and the parties therefore agree that the Owner shall have e exclusive and
sole right of determining as to what constitutes a nuisances and that its determination shall be bindi g and absolute.
WITNESS:
OWNER:
Rothman, Schubert & Reed, a Pennsylva
General P ership
25. Upon termination of the Lease, doors and windows of the building shall be left
and the keys to the leased premises shall be delivered to the Owner.
26. Tenant's fire fighting and prevention apparatus shall be adequate and sufficient a
proper working condition and accessible at all times so as to conform to all applicable laws
regulations.
IN WITNESS WHEREOF, the parties set forth theirs hands this r
2004.
--~ Q~s;)h <--
By: (SEAL)
Samuel L. Reed, Attorney-in-Fact p suant to Power
of Attorney dated August 21, 1996, a d recorded in
Misc. Book 528, Page 480.
(...---.....'\.: /7.., !./
'- ,-_;_._k--te- L \: 1- lG\-----
-
By:
(SEAL)
ATTEST:
"......
35
EXHIBIT D
GUARANTY OF LEASE
In consideration of the making of the above Lease dated n lS\J ~ , 2004,
by the Tenant with the Owner at the request of the undersigned, and in reliance of t e Guaranty, the
undersigned hereby unconditionally and irrevocably guarantees the payment of the rent 0 be paid by the
Tenant and the performance by the Tenant of all the terms, conditions, covenants and a eements of the
Lease and its Exhibits. and the undersigned promises to pay all of the Owner's ex enses, including
reasonable attorney's fees, incurred by the Owner in enforcing this Guaranty. The 0 ner's consent to
any assignment or assignments, and successive assignments by the Tenant and Tenant' assigns, of this
Lease, made either with or without notice to the undersigned, or a changed or different se of the Leased
Premises, or Owner's forbearance delay, extensions of time or any other reason whet er similar to or
different from the foregoing, shall in no way or manner release the undersigned om l}ability as
Guarantor. Where the undersigned include more than one party, the obligation of ach such party
hereunder will be joint and several. It will not be necessary for Owner to proceed first gainst Tenant in
invoking any of Owner's lease remedies before proceeding to enforce this Guaranty of Le se.
WITNESS the hand and seal of the undersigned at the date of the above Lease.
/'-'\ ' ()/ J
;,-._--.i(\tt.,l,VC>-\ (tv )~-
() ~
WITNESS:
36
11/04/2004 15:05 7179Bo~939
I
REAGER & ADl ~~ PC
I
PAGE 02
(,Ii
,slj.
i JIB ';I.J
j: ! IA
., .. i
~:I It i,i ft
'ilj rd' .
d~!~ ~
.. ~
II.
111
~
I!J
;
;H
:r
I~
ill
III ~ I~!llmn~
It IJ ;niiJ{'~
n.J~II!IIII~ll J J
I~': '::)'1: I nu ,
1 i illf i
i ,ftl ,
I Jill '
- iJ;r
If
I l!I, ;11
d' :1:
I .
~,
I hi
!i Ii { IH ~
.ldlW
~'J
"
'I
c:J !,
II
Ii
-,
EXHIBIT A ~0
1:/04/2004 15:05
71 79E1~ . CJ39
j
REAGER & AD' ., PC
)
PAGE 03
RS&R SHOPPING CENTER -OVERALL
Alllhat eenain 1ract or land Jitulte in But P~ro Township. Cumberland
Pes>>1sytvatlia.. more putkutarty bounded and described u fonows:
, BEGrNNTNG at & point along the northern right orway 1iltc or Pcnn~IVti\i. R ute 944.
.bo known as Wet1.xVillo Road and on the line of adjoinct between tot~ no~, 1 a 3 on
the hereinafter mentioned Plan of Lot; _
thtn~ alOrtg wd line ofadjoit\(::l" by a curve to the let\ with 1 radiuI,or 10.00' d &1\ arc
lenSth of 15.71' to I point~ _
thalce, continuing along ~d line: ofad,iolnc:r N tr32')J"W, a distance of 185. 8~ to a
point;
t~ continuing a10nS &aid line or adjoinet S 12027'27" W, a distAru;c: of 241. S' to a
point on the: eenterliM cr J.Jl etlOJtirtg ZO' sanitary sewu casement.
thence, contUtuing aJong wd centerline t~ following cout'$e! and distances:
N 21"20'00" W, a distaneo of 138. 9S' to a point;
N 11915'30" W, . diftanGe of263.28' to a point
N 4010'00" E, .a distanu of 130.24' to a point~.
N 4-20'30"' E. & di.t&11c.c: of 123.12' to I point;
N- J3oJ&'W;-a ~of2S9S1' to-a poUrt;
N oouSI'E. . diatatlcc'ofJ'4S.14' to.a point on. the tine ofadjoiner between Lot
. lands now or formc:riy (nit) of Jacob R. Renninger.
thence., along iAid line or sdioiner N ~S9t42" a a distlnCC or 102.70' to a poi t on the
tine ofadjoinct ~ Lot No.3 and la.nda nJfofRo"cn B~
th~ along said line of Idjoincr and along lands nlr ofMarga.ret and Jlcob Ulri k S
22~4t4T' E, .. diJtance of200,J I' to tn iron pin; ,
thcncc:r, N 8)005'07" E. .-dIaUft.ce of298.94 , to. point:
thenco, S 22.51'00" ~.. distance or'-17.0~' to. point~
thence, aloni said l4nds nlrofContervatfve nartilt Chutdt S "024'00" W, a dis cc of
J2S.44' to an iron pin;
th~ along said Iin6 of adjoincr S 226S t 'OgK ~ a diltlncc or 349.95' to an iro pin;
thence. aJon& said line of ad joiner N 81024' E a disunce of 1 ~.44' to .1ft Iron pi on the
western end oftinden Street; .
thence. dop8 ISA1d western end orLinden Street S t 6- J S' 43" E. . distance of 48. 4' to an
iron pin On land.. nit ofHden B. Hd~
thence, a.lona said land5 S 22.53'J5.' E a dlatanc:c or 152.38' to an iron pin at Ian nlfor
Donald E. Shutt;
thence.. along said lands rJ(0( Shutt and land, nlfofRobert Brm S 'TJG44'3S"
diatance or 179.42' to An iron pin;
thence. &1ongNid land. DfBrctz S17035':B" E. distlnec: of t82.03' to II point 0 the
northern line of Lot No.2;
EXHmIT uA~ 1".
.W\(
1~!04!2004 15:05
,r
717g8n~g3g
I
REAGER & AD' - --, PC
!
PAGE 04
, ,
,
thence, S /2027'2T W a dist~ce of J 99.80' to a point;
thonec, S 17032'33'0 E & dillance of208,OO' to I point;
tbence. by a curve to the left having .. radiu~ of JO' for an arc distance of 1 ~.7IO to a point
on thenorthcm tine ofPenn.sylv.m1l Route 944, known.., Wer1zviUe R.oad~
theau. S 121127'27" W. dilUnce of 79.0-4' to.. point the place ofBEQ1NNlN .
Containins: S 19. 784 ~. ft.
BEING Lot No. J
(13.31 sacs)
WERTZVILLE ROAD aM' CONVEYANCE
All that CCTtain tract orland tituate in East Ponnsbcro Townihip, Cumberland C unty,
Pennsylvan1a.. more particularly bounded and dexribtd 13 rollows;
BEGINNING at a point along the existing nonhcm right or way line ofPcnn!.ylY 'a
Route 944, aJJO known u Wcrt%Yil/.c Jtoad. said point bdflg located at the Sout ~tem
eomc:r ofla.o.:b now or formerly of Eric Shore Enterpri!eS, Inc, thenu JJong uid f411ds by
. curve to the !eft hiving a radilU of 10.00 .Il1d IJ1 arc te1lgtn or IS. 71 t to a point: then~
by sameN ,7932'))" W I. diatanc.e or .5.14' to I point on the required northern ri ht..of.
~y tine ofWertzviUe Road; t~, by said rlgJrt-<)C-way line N 72026'17" E a di tanee of
S9.04' to A point 11 lands now or formerly arUm-Matts., Inc.; thence. along lands ofUnl4
Marts, Inc:. S 17032'))" E adistAnet o( 5,16' to a point; thence, by same by A cuo to the
left having a radius of 10.00, and &J'1 arc tcnBth or 15.71' to a point on the north right- -
of-way line ofWertzviUc Road; thence. by said right~r.way tine S 720?7'2T' W
dimn.ce of79.M' to a point., the p~ce otBEGINNING.
ContaIt\ing: 93& 5q. ft,
(0,02 ICTe.3)
CONVEY ANCE TO RS &R
All thai cer:&n tract otland dtuatc in wt PeMSbom Township, Cumberland Co nty,
PennsylvanJa, more particularly bounded Uld de~cribed u fbl1owa:
BEOlNNlNG af .. point on the eutem rig1rr.-(Jf-~IY of Salt Rom Roalignmcnt. Pi point
bcina on the centerline of an existlng 20' sanituy sewer easement; thence. atong 'd
sewer centerline N 17" r 5'JO" W a distance oC70.96' to & point; thence, by same
04-)0'00" E I distance of 130.2'" to a point~ thence, along land. now or formerly
Shore FIrst Auembly of God S 6JOS4'41" W. distance of 116.o4S' to.. point on t
eutcm rigbtyo(..way line or Salt Roed ReaJl8M1Cnt; thence. alons Slid right--of-w
~.
t ~..': r.
"
1:/04/2004 15:05
PAGE 05
71 7'3I?F' ~'33'3
\
REAGER & AD' 'PC
)
:12,.05'J9" E a distan<< of 113.6S' to a point; thence. by same N 6"54'41" ~. lstanco
ors.oo' to to poinl; thctlc.e. by ssm~ S 21.05"19" E a dis1ancc of11J.6S' to" int;
thCf1Ce. by $&me N 6rS4'41" E .. diJ1anee of 47.86. to I point. the place' orBE INNING.
COl\u..ining: 13,618 sq. ft.
(0.31 acr")
YN
1:/134/21304 15:85
717'31304939
REAGER & ADLr~ PC
)
PAGE 135
EXHIBIT E
,
S.A1\.1PLE 1v1ENU
INSALATE
,4,NTIr"Sro AU. 'rr~'N^
lNs,ALAl'A CSSA~g
lNSAU-T ^ 01 pou.o
fNS..u......TA OEl.I..A CAB'"
u.sl\J..J, l'^ CAPltES~
ANTIPASTI
AN'1'1PJ\STO P'RUA CASA
o...M1lER.1 It ~1 P1UrT'!
v<'.Ma~lItCAI..AMAA1 MT.T...'rJ
-aRU5c:K!Tr^ A1.l"OMOtlOJtO
MAZZ~E!1-t.~ ~
flROSCIUTT'O S MRt..O~
p~
l'.AJ'.llJolO CON 1~
l'AN'lNO ctfN PRO'CIUTTO
P/\NINO AU,.".AUANA
I'.AMNo CON POt.l.O AJ,.r..A. GRJGlJA
J>IIMNO CON CAJ.m
,^NINO WOETA.!..H
PIZZETTE
R'tZZA MAACl-l'lllU'r4
ttll..zA NAJlIOLET ANA
P!ZZ.4. QtlATrRO Sr~NI
P~ DLAVOLA
PJ.ZZ..1. SiANCA
~l zz..". .AJ ItUNOJol I
Pl1Z.A V,eO!l'..-.Ul
PlUMI PIA Tn
IV. 1'10l.I COW F'~ E ~IUTI'Q COT"l'O
Il.ISorro AJ f"t1NQffi
II"tSOTI"O ^"^ ~TClR.A
GNoCcH'J IU.I.J...JI, ~2
1'1l.S'i''''CON~OP~O
ll.T0A1"ONf c..'\JUICINAR.J\
nn1J~l>tTIT.Io:NUCA
~ CON POUt.> a YANNA.
1I1STBCC^ ;'1 FmUtf
l'i.1Ci DIU. OlOltNCl ...( l'RRRl
DOLeI
p.llalSER7S WILt.. CUANaD WUIC.L Y
BE'VANDE
C4.IIPUCC!N'O
1!l8f'l'U!1SO C.AWIl U'JTJiI:
ACQUA~
AAANCIATA
UMONA TA CHl'NO't"'l'O
Sllil"T1i (jo'\SjAtt
Date: I/-CJ ?O f./
3g</
East Penn Dr.
Enola, PAl 7025
By signing this letter you agree on the following:
s received ossession to
Possession Date
//-o9-a'l
Code
11- 7+-9
Occupancy Date
Rent Commencement
-~s
Initial Monthly Base Rent Amount
Initial Monthly Additional Rent
Security Deposit
. 'digtJ .00
t:f 3.J;.() I () 0
Pre-Paid Rent Amount
Partial Rent Payment Due
? d~8() ,00
;;;Z - 69 .os -r
Date of Base Rent Increases
c ~U1- TP. 't e-Jr ~
Next Full rent Payment
+
1- O?--
/-CJ '7-;;2.0
Lease Termination Date
Options
1'<.
Please review and sign letter of acknowledgment and agreement. It is our poli y that we
do not release key until this worksheet is returned. By returning it immediately to my
attention (by fax (717) 763-1656) you will avoid delay in receiving your key a d help us
facilitate our accounting process. If you have any questions regarding the abov , please
contact me at (717) 763-1212.
Thank you
~c/~
& Reed
/:' - ./fO LA-f)
SSN#: UDb - (CJ - -~ I / 'f
_O)V-Q
Drivers Lic#
Rothman. Schubert & Reed I
3 Lemoyne Drive, Suite] 00. Lemoyne P A. 17043- 717-763-1212 - fax (717) 763-165~
}~D\t 0
-
---
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PE NSYLVANIA
CIVIL ACTION - LAW
MASSIMO TRATTORIA, INC.,
a Pennsylvania Corporation and
MASSIMO NAPOLI, individually
Plaintiffs
No, OS - ~9S
c- ~ll~€rL~
vs.
WILLIAM F, ROTHMAN, CHARLES
F. SCHUBERT and SAMUEL L.
REED, co-partners tJd/b/a ROTHMAN,
SCHUBERT & REED, a Pennsylvania
General Partnership
Defendants
JURY TRIAL DEMANDED
o
S;
~ff-
Z~. J
~~)J:'.
"
'--
-,- -0
~C-) ~
:::O~'c-,
)> c:: w
Plaintiffs Massimo Trattoria, Inc., a Pennsylvania Corporation and M s~o ;;,
N
Napoli, individually, by and through their attorneys, Goodall & Yurchak, P .C:, files the
COMPLAINT
following Complaint:
1. Massimo Napoli is an individual with an address of 2248 Saw almetto
Lane, Building 7, Apt. 117, Orlando, FL 32825.
2. Massimo Trattoria, Inc. is a Pennsylvania corporation with a m i1ing
address of 2248 Saw Palmetto Lane, Building 7, Apt. 117, Orlando, FL 328
3. Upon information and belief, Rothman, Schubert and Reed (h
referred to as "RSR") is a Pennsylvania General Partnership, with a busine s address
of 3 Lemoyne Drive, Suite 100, Lemoyne, PA 17043.
4. Defendant William F. Rothman, an individual, with an address
Lemoyne Drive, Suite 100, Lemoyne, PA 17043.
5. Defendant Charles F. Schubert, an individual with an address
r-.;}
=
=
c..r"
-!'t'"
-
:::P1,:iI
-<
t
l.O
o
-n
::;:!
",*- -n
1.'[=
-om
::09
0-
,-"c)
-r -1"1
('5 :JJ
-'-..(;
c5rn
--I
:1;..
~JJ
-<
Lemoyne Drive, Suite 100, Lemoyne, PA 17043.
6. Defendant Samuel L. Reed, an individual with an address of Lemoyne
Drive, Suite 100, Lemoyne, PA 17043.
7. On or about November 8, 2004, RSR entered into a Lease A
(the "Lease") with Massimo Trattoria for the lease of approximately 2,460 s uare feet of
gross leasable area identified as Block H, Unit 7 and 8 with an address of 3 5 East
Penn Drive, Enola, Pa 17025 (the "Leased Premises"). A copy of the Leas Agreement
is attached as Exhibit "1 ".
8. The Leased Premises is located in Pennsboro Commons Sho ping
Center, Cumberland County, PA.
9. The Lease term was for five (5) years.
10. At the time of entry into the Lease, RSR was aware and had b en advised
that the purpose of Massimo Trattoria's leasing of the Leased Premises wa for an eat-
in Italian restaurant serving lunch and dinner with a high-end atmosphere.
11. At the time the Lease was signed, RSR knew or should have nown that
the current heating and cooling units in location on the Leased Premises were not
sufficient to allow operation, under the applicable building code requirement , of a dine-
in restaurant serving lunch and dinner with a high-end atmosphere.
12. RSR failed to advise Plaintiffs that the current heating and coo ing units
were not sufficient.
13. Immediately after the Lease was executed, Massimo Trattoria
completing the buildout of the Leased Premises including floor covering, ad
plumbing and additional hot water heater as contemplated to serve the Leas d
Premises.
14. This buildout, floor covering and additional plumbing was do eat
Massimo Trattoria's expense in an amount exceeding $90,000.00.
15. Additionally, Massimo Trattoria and Massimo Napoli individu lIy incurred
other expenses in the preparation for the opening of a restaurant including advertising
services, utility service and other purchase of equipment totaling approxim tely
$35,000.00.
16. Plaintiffs incurred additional damages in time and expenses i preparation
for the opening of the contemplated restaurant.
17. After signing of the Lease, construction proceeded at the Lea ed
Premises with Massimo Napoli and Massimo Trattoria expending money in preparation
for opening of the facility.
18. Construction done at the Leased Premises was subject to pe mitting and
inspection by East Pennsboro Township.
19. In December 2004, the East Pennsboro Township Building In pector-
Codes Enforcement Officer notified Plaintiffs that it could not provide an oc upancy
permit and/or was issuing a stop work order because, among other things, he HVAC
equipment was not acceptable to handle the air requirements for the asse
occupancy load.
20. Defendants were aware or should have been aware that the
equipment could not handle the air requirements for the use of a restaurant as
contemplated.
21. In short, RSR leased the Leased Premises to Massimo Tratto ia, which
premises could not support its intended use.
22. The Plaintiffs relied on the representations made by RSR re
intended use and that the premises would be suitable for a restaurant for
facility.
23. Except for the HVAC and air supply issue, Massimo Napoli w
position to complete construction to open his restaurant on or about Janua 9, 2005.
24. Because Plaintiffs were not able to open its restaurant due to the air
supply restrictions, the Plaintiffs have not been earning income to pay back his bank
loan and Lease payments.
25. The inability of Plaintiffs to open their restaurant because of t e current
state of the HVAC equipment forced Plaintiffs into a position where they we e unable to
open up the restaurant and earn an income.
I. Breach of Contract
26. The preceding paragraphs 1 through 25 are incorporated here n by
reference as if set forth at length.
27. By failing to provide a Leased Premises which was sufficient f
permitted use, Defendants breached the November 8, 2004 Lease Agreem nt.
28. As such, the Defendants are responsible for damages for brea h of
Lease, including all expenses related to the build out and accompanying co ts,
interests, lost profits and attorneys fees.
WHEREFORE, Plaintiffs demand judgment against Defendants for
compensatory damages in an amount in excess of $35,000.00 plus costs.
II. Recession
29. The preceding paragraphs 1 through 28 are incorporated he in by
reference as if set forth at length.
30. The determining motive for the Lease was to secure a Lease Premises
for an Italian restaurant.
31. The state of the HV AC was essential for the operation and 0 ening of the
business.
32. This determining motive was known to the Defendants at the ime of
signing of the Lease. At the time of signing of the Lease, Defendants kne or should
have known that the HVAC system was not sufficient to support the determining motive
for the Leased Premises.
33. The Plaintiffs did not and should not have known about the st te of the
HVAC system.
34. As a result, Plaintiffs seek recision for unilateral mistake relati g to the
Leased Premises with attendant damages relating to costs of renovation, a d any other
charges incurred as a result of entering into this Lease.
WHEREFORE, Plaintiff demands judgment against Defendants for
compensatory damages in an amount in excess of $35,000.00 plus costs.
III. Fraud/Misrepresentation
35. The preceding paragraphs 1 through 34 are incorporated here n by
reference as if set forth at length.
36. The Defendants failed to disclose to the Plaintiffs material fact known to
them concerning the Leased Premises, specifically relating to the HVAC sys em.
VERIFICATION
Massimo Napoli individually and as Massimo Trattoria, avers that th factual
averments contained in the foregoing Complaint are true and correct to the best of his
knowledge, information and belief, and the statements in said Complaint ar made
subject to the penalties of 18 Pa.C.S. S4904 relating to unsworn falsificatio
authorities.
,(
p.; \~ ~.\ "~,,, .... J C. ~.
37. Defendants through the oral and written statements in the Lase,
represented that the facility was sufficient for its intended use.
38. Defendants had a duty to disclose to the Plaintiffs all materia information
relating to the state of the premises.
39. The Plaintiff justifiably relied upon the representations made y the
Defendants.
40. Had the Plaintiffs known all the material facts relating to the s ate of the
Leased Premises, they would not have proceeded with entry into the Leas . As a result
of the Defendants'actions, the Plaintiffs were ultimately forced to expend oney for the
buildout and construction of the premises.
41. Plaintiffs seek recision of the Lease on the basis of fraud and r
misrepresentation, with restitution and for compensatory damages.
WHEREFORE, Plaintiffs demand judgment against Defendants for
compensatory damages in an amount in excess of $35,000.00 and costs.
Respectfully submitted,
GOOD L & YURCHAK
Kathleen V. Yurch , Esq.
PA. 1.0. 55948
328 South Athert
State College, P
(814) 237-4100
Date: April 27,2005
VERIFICATION
I, SAMUEL L. REED, hereby verify that I am
of
Rothman, Schubert & Reed and, as such, I am authorized to verify the averments of he foregoing
document are true and correct to my personal knowledge, information and belief. I nderstand
that false statements herein are made subject to the penalties of 18 Pa. C.S. S4904, r lating to
unsworn falsification to authorities.
~
Date: t, ,- ~ -0 ~
Ot-L1tV~~-t flJ
By:
Samuel L. Reed
CERTIFICATE OF SERVICE
AND NOW, this 9th day of June, 2005, I hereby verify that I have caused ate and
correct copy of the foregoing document to be placed in the U.S. Mail, postage prepa d and
addressed as follows:
Kathleen V. Yurchak, Esquire
Goodall & Yurchak, P.C.
328 South Atherton Street
State College, PA 16801
, '
,..../
p
-'p
<
...::..-
-....!
..../
'-
t--...)
C:::J
=
<:;Jl
<.-
(=
:I!:
o
"
-f
ffi-n
f'-'
",:;rP,
~;~O
',j(~
~-1~;
2~~~
-"}::!
~
.<
I
\.D
:?
r:-:)
.r.-
\.C
CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF
Plaintiff, CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
: 2003 - 2395 CIVIL TERM
RICHARD DAME d/b/a Shared Data
Services and BANCTEC, INC.,
Defendants.
: JURY TRIAL DEMANDED
DEFENDANT BANCTEC. INC.'S PETITION FOR
LEAVE TO AMEND NEW MATTER
AND NOW, this 22nd day of November, 2005, comes Defendant BANCTEC, [NC. by
and through its attorneys, Irwin & McKnight, and petitions this Court under Pa. R.C.P. [033 for
leave to amend its new matter, and in support thereof represents the following:
1. [n his complaint, Plaintiff alleges that there is an issue of fact as to whether the
Plaintiff was a subcontractor of Defendant, Richard Dame or a temporary employee of
Defendant Banctec, Inc.
2. In a prior action against Richard Dame d/b/a Shared Data Services that was filed
with this Court at Docket No. 2002 - 2590, Civil Term, Plaintiff pled that it was a subcontractor
of Richard Dame d/b/a Shared Data Services,
3, Plaintiff alleged that Richard Dame d/b/a Shared Data Services breached its
subcontractor agreement and that Plaintiff had rendered services for which it was owed
$107,047.02.
4. In that prior action, Plaintiff received a default judgment against Defendant
Richard Dame d/b/a Shared Data Services,
5. The instant action was filed against both the Petitioning Defendant and Richard
Dame d/b/a Shared Data Services, requesting the same damages of $107,047.02,
6. Defendant BancTec, Inc. was unaware of the prior action by Plaintiff against
Richard Dame until its legal counsel was recently contacted by Defendant Richard Dame.
7. During that conversation, Richard Dame indicated that he had been deposed by
Plaintiff, but legal counsel for Defendant BancTec, Inc. had not been part of any such discovery,
8. Defendant Richard Dame subsequently provided a copy of his deposition, upon
which time legal counsel for Defendant BancTec, Inc_ was made aware of the prior action filed
by Plaintiff and resulting default judgment against Defendant Richard Dame d/b/a Shared Data
Services,
9. Plaintiff's current attempt to question his status as a subcontractor of Defendant
Richard Dame is barred by his previous admission of the status in the prior suit against
Defendant Richard Dame under the doctrines of Judicial Estoppel and/or Collateral Estoppel.
See e.g. Wallace v. Workers' Compensation Appeal Board (Bethlehem Steel), 854 A.2d 613,
618 (pa. Commw. 2004).
[0, As a general rule, a party to an action is estopped from assuming a position
inconsistent with its successful assertion in a previous action. Wallace, 854 A.2d at 618.
2
11, Judicial estoppel is particularly concerned with the integrity of the courts and
there is no requirement that the issue actually be litigated or adjudicated. See In re Adoption of
S.A..T., 575 Pa. 624, 635-636, 838 A.2d 616, 622-623 (2003)
12. Plaintiff will not be unduly prejudiced or surprised by this amendment, especially
since the Plaintiff instituted the prior action, obtained the default judgment, and then elected to
file a new action against both the same Defendant Richard Dame d/b/a Shared Data Services and
the new Defendant BancTec, Inc.
13. Neither Plaintiff nor its legal counsel informed Defendant BancTec, Inc. of the
existence of the prior litigation and judgment for the same amount now claimed against
Petitioner.
14, Rule 1033 allows amendment of pleadings at any time with leave of court, and the
generally recognized policy is to liberally allow amendments in accord with Rule 126_ See 3
Goodrich-Amram 2d ~ 1033:6,
WHEREFORE, Defendant BancTec, Inc. respectfully requests that this Court enter an
order allowing defendant to amend its new matter as aforesaid.
IRWIN & McKNIGHT
Douglas . Mill r, Esquire
Supreme Court LD. No. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendant,
BancTec, [nc,
By:
Date: November 22,2005
3
VERIFICATION
The foregoing document is based upon information that I have gathered in my capacity as
corporate counsel and in the preparation of this action, 1 have read the statements made in this
document and they are true and correct to the best of my knowledge, information and belief. 1
understand that false statements herein made are subject to the penalties of 18 Pa.C.S,A. Section
4904, relating to unsworn falsification to authorities.
BANCTEC,INC.
"'-1..,
//.
By: '4~. .--
Date: ,1/ vC-'<u; de /( , 2005
CERTIFICA TE OF SERVICE
1, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by facsimile and/or first class
United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
David A. Baric, Esquire
19 West South Street
Carlisle, PA 17013
(Attorney for Plaintiff)
Shared Data Services
Attn: Richard Dame
PNB 204, 60 Chelsea Comers
Chelsea, Alabama 35043
(Defendant)
Date: November 22, 2005
IRWIN & McKNIGHT
L
. Miller, Esquire
Supreme ourt J.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendant
Banctec, Inc_
\<::
\->,,)
C'~
(':"J
.J
.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVil ACTION - LAW
MASSIMO TRATTORIA, INC"
a Pennsylvania Corporation and
MASSIMO NAPOLI, individually
Plaintiffs
No. 05-2395
vs,
WilLIAM F. ROTHMAN, CHARLES
F. SCHUBERT and SAMUEL L
REED, co-partners Ud/b/a ROTHMAN,
SCHUBERT & REED, a Pennsylvania
General Partnership
Defendants
JURY TRIAL DEMANDED
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Please mark the above matter as settled and discontinued with prejudice.
GOODAll & YURCHAK, P.C.
Dated: December 28, 2005
V. Yurchak, Esq.
Atto ne for Plaintiffs
Pa . . 55948
3 outh Atherton Street
State College PA 16801
(814) 237-4100
,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVil ACTION - lAW
MASSIMO TRATTORIA, INC.,
a Pennsylvania Corporation and
MASSIMO NAPOLI, individually
Plaintiffs
No, 05-2395
vs.
WilLIAM F. ROTHMAN, CHARLES
F. SCHUBERT and SAMUEL L
REED, co-partners tld/b/a ROTHMAN,
SCHUBERT & REED, a Pennsylvania
General Partnership
Defendants
JURYTR~lDEMANDED
CERTIFICATE OF SERVICE
I hereby certify that on this 28'h day of December, 2005, a true and correct copy
of the Praecipe to Discontinue has been served by United States first class mail,
postage prepaid to the following:
John H. Pietrzak, Esq.
Reager & Adler, PC
2331 Market Street
Camp Hill, PA 17011
~/ .~
11 {/l~///
Kathlee . Yurchak, P.C.
Attorney for Plaintiff
,-,
c:-::>
c:?
b'""
,-
~...."
....0--
1
C,)
o
-r\
-I
:r...,
f.~;:f.;
,')'-,-'
-', ~,~'
S~!
',~)' '"\
-.-\
~i
c-'