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HomeMy WebLinkAbout07-5757 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. CIVIL DIVISION No. 61- 5157 ?i?? l IP.rrn COMPLAINT Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow PA ID No. 43523 Moira Cain-Mannix PA ID No. 81131 MARCUS & SHAPIRA LLP Firm No. 145 One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, NO. G 7.,5737 &t. d e Plaintiff, V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. Civil Action - Law 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 request 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 LAWYER REFERRAL SERVICE 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 COMPLAINT Plaintiff, PR Capital City Limited Partnership ("PR Capital City"), files the following Complaint against Defendant, Magic Wok Management, LLC, t/a Bourbon Street Grill ("Magic Wok"), as follows: 1. Plaintiff PR Capital City is a Pennsylvania limited partnership, with an address of c/o PREIT Services, LLC, 200 South Broad Street, Third Floor, Philadelphia, PA 19102. 2. Defendant Magic Wok is a Florida limited liability company. Magic Wok formerly traded as a tenant at Capital City Mall as "Bourbon Street Grill." 3. On or about August 31, 2004, PR Capital City and Magic Wok entered into a Lease Agreement (as amended by letter agreements dated December 16, 2004, August 3, 2005, and November 9, 2005)("Lease") for premises located at the Capital City Mall in Camp Hill, Cumberland County, Pennsylvania. A true and correct copy of the Lease and letter agreements amending the same are attached hereto as Exhibit 1. 4. As of October 1, 2006, Magic Wok and PR Capital City, as Landlord, assigned the Lease to Chang-Guang Liu ("Assignee"), pursuant to an Assignment of Lease and Amendment of Lease ("Assignment"). A true and correct copy of the Assignment is attached hereto as Exhibit 2. 5. Pursuant to the Assignment, Magic Wok remains liable under the Lease. The Assignment provides, in relevant part, that: The liability of Assignee under the Lease shall become primary; provided, however, Assignor shall not be released in any respect from its obligation to fully perform all of its covenants under the Lease. Assignor waives notice of all defaults by Assignee under the Lease and agrees that neither the waiver by Landlord of any rights against Assignee under the Lease nor any modifications to the Lease made by Landlord and Assignee without Assignor's consent nor any consents given by Landlord pursuant to the Lease nor any subsequent assignments by Assignee of its interest in the Lease shall in any way modify or release Assignor from any of its obligation to Landlord under the Lease, all of which obligations shall remain as heretofore.... Assignor hereby covenants that the Lease is valid and existing according to its terms. (Ex. 2, ¶ 2). 6. The Assignee subsequently defaulted under the Lease by failing to make payment of rent and other charges which were due from approximately November of 2006 forward. On April 30, 2007, the Assignee vacated the premises. 7. Magic Wok has defaulted under the Lease by failing to pay the rent and other charges which have become due since November of 2006. Magic Wok has further defaulted under the Lease by failing to keep the premises continually open in violation of Section 7.02 of the Lease. 9. PR Capital City has notified Magic Wok of its defaults via, among other notices, a letter from its counsel dated May 3, 2007. 10. Magic Wok has failed to cure the defaults under the Lease. COUNT I (Breach of Lease) 11. The preceding paragraphs of the Complaint are incorporated herein by reference. 12. PR Capital City is the Landlord and Magic Wok is the tenant pursuant to the Lease dated August 31, 2004. (Ex. 1). 13. Magic Wok has breached the Lease by failing to pay rent and other charges when due. As of September 19, 2007, Magic Wok has a past due balance of $ 72,311.12. 14. Magic Wok has further breached the Lease by failing to keep the premises continuously open for business in accordance with Section 7.02 of the Lease. 15. PR Capital City has notified Magic Wok of its defaults under the Lease. 16. Magic Wok has failed to cure its defaults. 17. PR Capital City has been damaged by Magic Wok's defaults pursuant to the Lease. 18. Due to Magic Wok's defaults, PR Capital City has the right to accelerate rent through the balance of the Lease term. As such, Magic Wok is liable for future rent, through the balance of the term of the Lease, in the amount of $495,833.37. 19. Magic Wok is also liable for PR Capital City's attorneys' fees and costs in connection with this action pursuant to Section 16.05 of the Lease. WHEREFORE, Plaintiff, PR Capital City Limited Partnership, demands a judgment against Defendant, Magic Wok Management, LLC, t/a Bourbon Street Grill, in the amount of $495,833.37, plus interest attorneys' fees and costs incurred by PR Capital City in the pursuit of this action, and any other relief the Court deems appropriate. Respectfully submitted, Dated: September 26, 2007 Stephen S. Zubrow Moira Cain-Mannix MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership Magic Wok UNSWORN VERIFICATION UNDER 18 PA. C.S. 4 4904 The undersigned hereby states subject to the penalties of 18 Pa. C.S. § 4904 regarding unsworn falsification to authorities as follows: I am a duly authorized representative of the Plaintiff identified in the attached Complaint and that averments of fact contained in such Complaint are true and correct to the best of my knowledge, information and belief. i Dated: September 25 , 2007 By: "` Debra Lambert Vice President - Legal PREIT SERVICES, LLC Agent for PR CAPITAL CITY LIMITED PARTNERSHIP LEASE AGREEMENT BY AND BETWEEN PR CAPITAL CITY LIMITED PARTNERSHIP, as Landlord and MAGIC WOK MANAGEMENT, LLC, as Tanant TRADE NAME: CAJUN CAFIt GRILL D.\LegaPBm d"WORDWRMT-LeasarapiWCdtyK:NjunW e[3ritl(fmai) doc EXHIBIT 1 Y'1 FUNDAMENTAL LEASE PROVISlONS This Lease is executed and made as of P'NS 1:15-ht' Z A 2004, by and between PR CAPITAL CTf y LIMRED PARTNERSHIP, a Pennsylvania' limited psi,ershlP (herein called -Landlord-) and MAGIC WpK MANAtiiE11ENT, LLC, a Florida limited liability company (herein called 'TsrmarhC) Tenant having the tdlowkhg notice addresses: Landlord: PR CAPITAL CITY LIMITED PARTNERSHIP do PREIT Services, LLC 200 South Brood Street The Bellevue. Third Floor Philadelphia, PA 19102 Attn. General Counsel Tenant: MAGIC WOK MANAGEMENT, LLC 3421 North Lakeview, Suits 168 Tampa, FL 331118 Copy to: PR CAPITAL CITY LIMITED PARTNERgHIP Management OArce 3506 Capital City Mall Drive Camp Kill, PA 17011 Attn: General Manager Copy to: Certain Fundamental Lease Pmvisiom are presented irk this Section and represent the agreement of the parties hereto, subject to definition and elaboration in the respective referenosd Seedons and eiscwtwe in this Lease: (a) Tenants Trade Name: Cajun Caf6 aril (b) (See Sec. 7.01) Rant Term: Landlord and Tenant acknowledge that Landlord Will be constructing a Food Court at the Capital City Mall In an area outlined M blue on Exhibit A attaded hereto and Tenant wrll be required to move to another location willhin the Food Court Area ("Relocation Pnemiseaw) during ft tern of this t ease. Prior to the Food Court opening. Tenant witi occupy Store Number 834 for a period of months ('InttlN Term') which shall commence on the earlier m occur of (a) August 15, 20C4'or (b) the state upon which the Tenant opens for business In Store Number ON, and will terminate upon the closing of he premises. Landlord and Tenant agree that Tenant will be pennNEed to close gtore Number 834 In order to relocate its equipment to the Relocation Premiss, such dosing to occur no sooner than seven (7) days prior to Tonsnt opening for business in the Relocation Premises. F011owmg Tenerife relocation to the new Food Court Arm, Tenant's term will be extended fat one hundred minty (+20) months commencing on the date Tenant's opens for business in the Food Court ('Relocation Rant Commencement Date) and terminating on the last day of the one hundred bNentieth (1200) month following the Relocation Rent Commencement Date (te'Expiradon Date"). (See sac. 3.01) (c) Tenant Stem Number: $34 (an area outlined In red on Exhibit A) (see Eh#m. A) (d) GLA of Promises: 350 square feet (See Sec. 1.04) (e) Design DtawhNs Submission Data: April I e, 2004 (See See. 2.03) (f} Tenants "Construction Commencement Data: June It 2004 & "Construction Period': sixty (60) days from the last to *=a of (l) full execution and delvary of th a Sec. 2.03) delivery of promises by Landlord; (ill) plan approvat and Tenant's receipts of permits. d the Lease; (ii) (See Sec. 2.03) (g) Minimum Rent: ItMILE Annual Amount Opening d Room #x634 through the termination of the Initial Tatra ti1S,00Q00 $2,083.04 From the Relocation Rom Commencement Date through the 30 month thereafter $50.000.00 =4,166.67 From the 37M month from the Relocation Rent Commencement Date through the W month thereafter $60.000.50 $5,000.00 D:1L pMreadalMWORMPREIT-Leam%CapitsiCi4ACajunCaferrip(fmsj).doc EXHIBIT 1 t'1 From the 85' month from the Relocation Rent Commenoemeni Dot through the end of the Term $70400.00 55,833.33 (h) Percentage Rent: mod ak The?Parr?n??_ Opening of Room /834 through the $312,500.00 termination of the initial Term Eight Percent (8%) From the Relocation Rent Comment Date through the 38° month thereafter 5625100040 Eight percent (tt'/.) From the 37 6 month horn the Relocation Rom Commera:emwt Date through the 90 month thereafter $750,000.00 Eight Percent (8%) From the Be month from the Relocaton Rent through the end of the Term anent Date $875,000.00 Elam Percent (8%) (I) Re"Ired Opening Date: August 150x, 2004 G) Security Deposit: NOTAPPLICABLE (k) Marketing Service Charge: 51.50 Par square foot of the GLA of the Premises per Yew Minimum Advertising Charge: $1.00 per square foot of the GLA of the Premises per Yser FUNDAMENTAL LEASE PROVISRM (CONT'D) 0) Certain Other Charges Payable by Tenant: Tax Charge Services Charges Refuse Handling Charge CAM Charge Special Assessment Food Court CAM Sum (m) "Agent" and To Whom Pont Payabk: PR CAPITAL CRY umm PARTNERSHIP P,O. BOX 644032 PRTSBURGH,PA 1tu'U-4052 (n) Use: the rehtt sob of those arms kerns bated on Exisibit °D", atfaahed hereto and incorporabd herein, and for no other purpose whatsoever. (See Sec. 7.01) n:u.?,t?sraaal?l?wotzDw>t>;rr-i?es?,?intc;ey?ciu?ca?c,?l(rv?.aa (See Sec. 4.03) (See Sec. 4.04) (See Sec. 4.02) (Sea Sec. 2.02) (See Sec. 9.01) (See BeC. 9.02) (See Sec. 5.01) (See Sec. 6.02) (See SeC. 6.04) (See Sec. 8.03) (See sec. 9.01) (Exhibit E) 3 EXHIBIT 1 n LEASE AGREEMENT ARTICLE 1: INTRODUCTORY PROVISIONS Section 1.01: REFERENCES AND CONFLICTS. References Wearing in the Fhshdaronhal Lease Provisions are b designate some of the other paces in this Lease where additional provisions this aPPlicabte tp tw Particular Fundamental Lease to any of the Fundamental Lease provisions shop be Lease Provisions appear. Each reference in aratrued under such provisions, and such provision shall read in all be co with o ???rporate ON of the terms Provided for thereto. If there Is any conflict between any of the Fundamental Lease Provisions and s of ih a w applicable any other provisions of tis the latter shad r?ntro shall not h Lease, l, The Nsdng on the Fundamental Lease Provisions r moot l by Tenant be construed to be an exhaustive test of ON charges or she amount thereof payable by Tenant under this Lease. Section 1.02: GMMAL DEFINITIONS. (a) The term Shopping Center means the land shown on Exhibit "A" altadhed hereb and by this reference incorporated herein. as the seam may hereafter be reduced, expanded or otherrse aiered from time to time. (b) The term "Mall Prani"s• means the Shopping Center excluding howaver the MBjore• Promises and the term "Mall Promises` includes the same as reduced, expanded or otherwise altered from time to time. (c) The term 'Landlord's BWWkg' means the buildings, structures and other improver>erb shown In general on Exhibit "A" and Includes the "Enclosed Mai` (hereinafter defined), but excludes the Majors' Premises (hereinafter ??Laor Otherwise ndt Building is part of the Mal Premises. The term "Landlord's BtrAlding' includes the some as reduced, from time to time. by such (term, or The t ajoro' Promises" (or VajeK Premises") means the premises shown on Exhibit "A", page t M by Me word 'Major" or name of the prospective or actual principei occupant thereof (on "MajoW or a afteref .jor'), and the ??t "MAW Pr be " 'Majors Premis"I Includes the aame as reduced, expanded or otherwise atered under me trade name Provided term m a" toorgreater than 50'000 OO??o? square feet and occupy and primary occupant of a Majors Promises as well as in thecacase? of ann oxPar>aw rep on of th lacemeent for Shopp pingother Call ear, the a of the occupant of the premises equal to or exceeding. In terms of ? the GLA of er, s primary on Exhibit "A" (even tough those prem n thr any one (1) of r cthe Majors' premises shown or Majors snap include premises may not be originally shown thereon). Reterenc?es in this Lease to a Major or "Majors' Prandses'anndd "Major's «subsdltr0e or addtienat Major and its premises are included Within the terms (e) The term ' Co ninon Areas" means all areas, facilities and lmprovennnia operated or provided at or in connection with the Shopping Center from time b time for the ror-exdusive common use of LarxNord. the tenants of the Mail promises and the Majors, and shop Include but not be limited to the "Enclosed Mai" (hsrei wAw defahed), Parking areas, roadways, ramps. trait controls, truck ways, loading and unloading docks, delivery escsiatom and elevators (t any). service corridors. exit corridors, seating areas, buffer areas, screeniing laagry?. merchandise pickup stations (excluding than of Majors, if any), public „eat rooms and comfort stations, retaining wells, landscaped dsm, O end/ s?nsl . sakary and other waste handling systems, hdit tanks, force mains, fire suppression ety syate systems, and fighting systems. The tern "Common Areas" incsystems. cne a security systems. community rooms, dre from time to tine. sauna as reduced, expanded or oMtarwise altered tered (f) The term 'Enclosed Mai" means the enclosed dimate controlled Pedestrian mall located in LandloWs Budding, and the term "Enclosed Mai" includes the some as reduced. expanded or otherwise altered from time to time. • (g) The term 'Premises' means the space demised by this Lease and situated in Landord's 9uil flog which space is in the approximate location merited on Exhibit "A", however, the Premises is limited vertically to the ceiling height above the structural floor set forth In Landlord's Storo Design Criteria" (defined in Section 2.03(b) hereof). In the event an Premises is a corner location. the Premises shall exclude any rights with respect to the exterior side wall of the Premises. (h) The term "Fast Food Cluster moans the area or areas now or in the future spoaflcally designated Landlord for small restaurant or other food service operatims situated in by Premises. Including the individual premises and any seating area located Yherai n and, ft maintenehoe re L d and the areas primarily serving the Fast Food Cluster. The term "Fast Food Cluster includes the same as reduced, expanded oor otherwise altered from time to time. 0) The term "GI.A" means with respect to the Premises and all other leasable areas, Landlord's best estimat of the number of spuare feet of area on all Rom In Landlord's Building for the exd usive use by the leraots or occupants thereof and their Customers. clients or other invitees Including without linkabon mezzanines and balconies if used for the sale of goods and/or services (but excluding all other areas and space defined herein as part of Common Ares). GLA of the Premises shall be measured from the exterior face of exterior walls and the exterior face of service corridor wads, the line along the front of the Premises where the Premises abuts the Enclosed Mall as shown on Exhibk A (which line is commonly known as the "Lease Lis"), or the Lease Line of any pop-outs referred to in Section D:1l.e9hBrcnWWORDTRETT.I mcsNCapjWCtiyC&P+aCefe0rilkikiat).doc EXHIBIT 1 n 1.04, as the case may be, and the center line of any wall Tenant shares with other tenants or occupants of the Landlord's Building Ora Maim' Premises. With respect 10 all leasable area other than the Premises, virtue of the definition contained in the lease in question. No deduction from GlA shall be determined by GlA shall be made for be determ stairs, elevators, or any interior construction or equipment. From time b time during the Term. Landlord may give of the GIA Of Landlord's Budding at a given time for a given Period of time, as such GLA m be Tenant notice reductions, expansions or other In the alterations of Lend khrdk BuUdhg or as such GLA revised because of team of oUror tenants or may be adjusted pursuant to provisions tadculete tine GLA Fraction (defnedtiectton 1.02and to mak and of Landlord's Building shat be utilized to charges to Tenant. any oiler calculations requied to determine the Q) The tern 'GLA Fraction' moans a fraction. the numerator of which shad be the GLA of the Premises and the denominator of which shall be the occupied floor area of Landlord's Building, subj Section 4.00. Further, at no time shall the denominator of the GLA Fraction by bas t, ho et v ' to the Provisions of %an Pitt (60%) of the total leasable area of the ShoPPIng Center, less the (NA of the Ma Promises. tors' Premises and the Junior Mayors' (k) The term "Junior Major(s)' means a person or entity, (not herein klentilied as or otherwise hereunder constituting a "Major") which owns or leased (() any building or ground not connected to Landlord's Building (e.g.. a so ca lled "out parcel') or that does not open on to the interior mad or (1) in excess of 15.000 square feet of GLA in the Shopping or based by inter in the t "Junior Majors? Premises" means the Promises in the Shopping Center owned, occupied (1) The term 'Lease" as used In this document (the "Lease") shag mean the Fundamental Lease Provisions, the Lease Agreement, the ExhBlts attached hereto and Addendum. I any. Section 1.03: EXHIWS. The following plans and special provisions are attached hereto as Exhibits. are made a part of this Lease. Incorporated herein and hereby EXHIBIT A Plan of the Shopping Center as presently constituted which plan also shows the approximate location of ft Premises. EXHIBIT B Guarantee of Lease (the "Guarar"e"). if applicable. EXHIBIT C Completion Certificate. EXHIBIT D Menu. EXHIBIT E Fast Food Cluster Tenant Exhibit. Section 1,04: TENANT'S STOREFRONT. Tenant may, subject to receipt of all rowked goverrxnental approvals and Landlords prior written approval, pop. OW .9 or a portion of the storefront Should Tenant Install a pop-oul storefront. the GLA of the Premises shall be Increased to include (he square toot area of the pop-ms). The Minimum Rent and Oro Break point shall be accordngty Increased, to Include the area of such pop-out(s). Section 1.05: CHANGES TO SHOPPING CENTER As between Landlord and Tenant. Landlord may at any time and from time to lime eliminate land from, or add to or substitute for land of, the Shopping Center or any part thereof, or ollminate, add or srbsMute any improvements, or change, edarg or consent to a change in the shape, size. localion. nurnber. height. or extent of the hnprovements to the Shopping Center any part thereof. including, without lI nitation adding additional levels to any exiting buildvW therein. Section 1.06: CROSS EASEMENT AGREEMENT. Lease, the ant un Center mid agrees with Landlord that. notwithstanding anything b the contrary contained in this Lome, the aShoppin nd otherwise union without Imitation, the Common Aram and the Premises are and shall be subject, subordinate 1 any cross segment agreement (as they may be or may have been created. amended. supplertwnted or otherwise modified from time to tine) between Landlord and each of to Majors or Junior Majors who are Parties thereto (such cross easement agreement being herein collecthi* called the 'REA . warrants that the REA referred to In the Lease does not contain any provisions that would adLandlord repres ra, versely affect Te?nan? visbilky ac Provi cesraubi which are incurs' pe with the the Premises; nor Its parking area; nor does such Instrument contain any on Tenant Provisions of the Lwse or which slant creche any additional financial obligations D:1 Apr%BrerhdsN WORDIPREIT4.mslCapita ao,CajuaW.C.iu(fwn..doe EXHIBIT 1 ARTICLE 2: PREMISES AND TENANTS WORK Section 2.01: LEASE OF PItENISES. Landlord. In consideration of the "RenC (dsflned in Section 4.01) to be paid and the covenants to be performed by Tenant, does hereby demise and lease unto Tenert, and Tenant hereby bases and takes from Landlord, for the Term, at tha rental, and upon the covenants, Conditions and other terms herein set forth, the COnImordal space referred to herein as the Premises situated or to be situated in Landord's Building, as the case may be. Section 2.02: SECURITY DEPOSIT. DELETED. Section 2.03: PREPARATION OF PLANS AND TENANTS WORK. (a) Tenant has had the opportunity to examine the Premises and hammy agrees to accept same in the 'as Is" condition in which the Promises exist on the date landlord turns over the key b the Premises to Tenant or Tenants designee. Tenant further acknowledpos that Landlord has not made any mPmsw t dwm as to the present or future condition of the Premises or what items, If any, the present occupant of the Premises Is required to or may leave therein. Landlord shall not be required to send Tenant any formal notice tendering possession of the Premises nor shall Landlord be liable in the event the existing occupant of In Premises falls to timely vacate the same, except that any delay In occupancy shall extend the Required Opening Date specified herein for a period MW to the number of days between the Construction Commencement Date spedfled herein and the date such former tenant vacoes: provided that if physical possession of the Premises is not avagable by a date which is one year from the Construction Commencement Date, at Landlord's option, this Lease shalt be null and void and neither party shall have any lira dy hereunder to the other. (b) Tenant shall perform ae work required to be performed by Tenant b me completely remodel the Premises and to adapt the same for Tenant's use. as such use Is speified and I' ted by the Fundamental Lease Provisions. all such work being referred to herein as Tenant's Work". Tenant shall design the Premises in accordance with LarWbrd's current store and storefront design txf(eria booklet and otherwise comply with all Insurance and other requirements therein (herein called "Story Deem Criteria"), a copy of which Tenant Tenant shall insbuct its erchilect or designer to adinowledges It has received. with dsabdites txepag Tenant's plans for the Premises in compliance with the Americans Inconsistencies tAct, arm thClean Air Act an of this Lease and the applicable icable raves, nAw codes, and regulations. In the owl of any Premises prior to the Rent Commencement Date shall b$We e subject to d of e provisions ep ?r shah of t prevall. Low. this his Entry by Tenant to lime pay Rent but Tenant shell except the duty to Tenants Work in aoordan with the utilities and services supplied to It during such psriod. Tenant agrees to perform provisions of this Lease and such manner so as not to cause any Interference with the use, occupancy or enjoyment of the remainder of the Shopping Center, or any cause to be repaired all Items which may have been damaged as a result of the part thereof. Tarrant shall promptly upon the occurrence of such damage and n? I at el times keep the Shopping Performance of Cents s promptly (other Premises) free from and unobstructed by equipment or materials all portion related of the Work (c) On or before the Design Drawing Submission Date, Tenant shall submit to Landord's tenant coordinator (herein caged the Tenant Coordinator") for the Landlord's approval design drawings (ham called the 'Design Drawings') specifying each aspect of Tenants Work and spedically itolhdng a colored rendering of the proposed storefront and signing, sample materials 10 be used in the Premises and sign. photograph of fb(tures to be used and tae kvwjor layout of the Premises. The Design Drw*kw shag be prepared in accordance with the Store Design Criteria. After receipt of the Design Orawrngs, Landlord shall return to the Tenant the Des' "approved as noted' or 'disapproved' if they are marked "disapproved', Landlord *WI alsonote the reasoth" s such. emw approver disapproval. On or before thirty (30) days after receipt of the "disapproved" Design Tenant Coordinator revised Ono Drawings meeting Landlord's objections. L shall thereafter return In same to s Tenant. marked as sat forth ? Tenard shell w lhh an edddional thirty (30) day period resubmit revised drawings until the same have been noted" or 'approved". On or before thirty noted" or "approved' Design Drewkhgs Tenant shall submit to the Tenant Co ib?ar days after for LlordsPt?? drawings and specifications (heroin called "Pint Plans") for architectural, electrical, mecLal, sprinkler and plumbing work wig Premises and at other Tenant work proposed by Tsrmanmt and shown on the Design Drawings and required by the Design Criteria. The Final Plans shall be prepared in accordence with the Design "approved as ~ Drawl s or " approv ? by ??. The Final Plans Shall Incorporate any revisions nggg? py ?as marked ? to ft Design ng including time forming the basis of Landlord's approving the some as noted'. After receipt of the Final Plans, Landlord shell return to Tenant the Final plans, marked etcher "approved". approved as noted" or "sa?PPr d" If they are marked 'disapproved", Landlord shall state the reams for such disapproval and Tenant shed. res?It within (1) days after receipt of such "disapproved' Final plans, correct army deficiencies staled by Landlord and (i) days connected Final Plans to Landlord until same are accepted as "approved as noted" or NaPprwored as landlord's Tenant Coordi *appr~. If Landlord nator. but Tenant shall revisessuchh Final Plans , Tenant need not resubmit the same to Tenant covenants that the Tenant Work in the Promises shad be constructed incorporate a ?? vAm changes and the notes disclosed on such approved as r~ Final Plans. If Tenant does not correct such defidenicy and disapproved Final Plans within the required time period, such failure shag constitute an Evert of Default Tenant's mtWorrkk swan be failerformed only accordance with the Final Plans, as marked approved as noted" or 'approved" by landlord. its Design Drawings on or before the Design. Drawings Submit Date or Tenant's failure to commence Tenants Work on or before the Construction Commencement Date shall be an Event of Default pursuant to D:II egs118rendaMIWORDIPRSTI-LessalCitylCsjaaCsfeGsit(fiml?doc EXHIBIT 1 Section 16.01 1,5111"s such Wm results from Landlord's inability to deliver possession of the promises to Tenant on the Construction Commencement bate. (d) lit ntionafly Deleted. (e) On or before the Construeven Commencement Date. Tenant shall deposit with Landlord cetifmates of insurance a$ required In Article 11 and the Store Design Criteria, as Wei as a Inns copy of Tenant's building permit and Tenant shall commence Tanamfs Work and prosecute it diligently and continuously to completion ir>cluding installation of fixtures and equipment in the Premises. Prlor.io the commer>cerne (of any Tenant Work or the delivery of any materiel to the Promises by any contractor, subcontractor or matertaknan (herein called "Contractor'). Tenant shat deliver to the Tenant Ciowdinalor a signed. acknowledged and sealed walver of hens (herein called "Contradoa Waiver of Lien') from each Contractor furnishing in excess of $5.000.00 in services or materials in the form apeaed by Landlord. The Contractors Waiver of Liens provides, among oOher things. that the Contractor wolves any and all lien rights that it may have against Landlord's estate, right. tine and Interest in the Shopping Center and any part thereof including, without limitation, Landlord's But ft and the Mall Premises. Within thirty (30) days aMw Tenant's openi thA business, Tenant shall deliver to Landlord an executed Completion Certificate in the form attar Premises for chid hereto as Exhibit "C". (1) Landlord shall have the right to post and keep posted in the Promises notices of non-responshbhity, or such other notices as Landlord may deem to be proper for the protection of the Landlord or Landlord's estate, right. title and interest in the Shopping Center and any part thereof. Tenant shall before the commencement of any work which might result in any claim, Ilan or other charge give to the Landlord written notice of Its intention to commence said work in s respect to ufficient tT?MsnabWork or le Landlord to post file and record such notices. The provisions of this Section 2.03 shall apply with any other work performed in or about the Premises at any tirrm during the Term hereof. Section 2.04: OPENING OF PREMISES. (a) Tenant agrees to open its business to the public in the Premises no later Ulan the Required Dale specified in the Fundamental Lease Provisions- Opening (b) Tenant shat complete. or cause to be completed. TonenPs Work and the installation of fixtures, equipment and merchandise no later than live Required Opening Dale provided Landlord tai not prevented Tenant from doing so. If Tenant fails to open its business to the public in the Premises on or before the Required Opening Date, Tenant shall pay to Landlord, in addition to Minimum Rent and Additional Rent an amount equal to one percent (1%) of the annual Nninum Rent for each day Ternant's business remains not open in the Promises from and after the Required Opening Date (counting the said Required Opening Date as the first such day). Any and all sums and other charges payable by Tenant to Landlord pursuant to the Immediately preceding sentence shall be paid on demand to offset admhist "yo costs and expenses incurred by Landlord as a result of Tenant's late opening and shah In no way abrogate, or relieve Tenant from any of Tenants obligations under this Lease, inGudng without Iknitaf on the obligation to open Its business in the Premises. and Landlord shall have all other rights and remedies under this Leans, at law and in equity, arising from TenoWs failure b open pursuant to Otis Section 2.04(b). Section 2.05: MECIU1N1 S LIENS. (a) Tenant will not permit to be created or 10 remain undischarged any Ilan, encumbrance or other charge arising out of any work done or materials or supplies furnished by any contractor, subcontractor. mechanic, laborer or c hr? encumbrance any moorage, conditional sale, sacu* sgroomcnt or chattel mortgage which might be or become a Wen gem Gharpa (cdlecly* a `Charge') against or upon the Shopping Center or any pan thereof Including without limitation the Mal Premises and Landlord's 13utlding or the hcome therefrom. Tenant will not suffer any other matter or thing whereby the estate, right title and interest of Landlord in the Shopping Center or any pan thereof including without Imitation the Mal Promises and Landlord's Building might be impaired. If any claim or ten or notice of claim or lien on account of an alleged debt of Tenant or any notice of contact or Charge by a person or Tenant's contractor to work on the Premises shat be fled against or upon the Shopping ??d ?TOr? days any Dan thereof Including without Imitation, Ohs Landlord's Building or the Mall Premises. Tenant shall within twenty Center or from Landlord, cause the same to be discharged of record by payment, deposit. bond. . order of 8 of a days after demand court of competent )ursdiction or otherwise. If Tenant shall fail to cause such pain or Yon or notice of dafm or Nan or oiler Charge to be discharged within the period aforesaid, two. in addition to any other right or remedy it may have, Landlord may, but shall not be obligated to. discharge the same by payment, deposit or by bonding proosedlirw and in any such event Landlord shall be entitled. N Landlord so elects, to Compel the prosecution of an action for the foreclosure of the some by the claimant and to pay the amount of any judgment in favor of the dalmart with interest, coats and allowances, Any amount so paid by Landlord and all Interest costs and expenses, Including attorneys' fees, incured by Landlord in connection therewith. shall constitute Additional Rant payable by Tenant trader this Lease and shah be paid by Tenant to Landlord on demand. NoWng herein contained dial obligate Tenant to pay or discharge any charge created by Landlord. (b) Tenant shah pay promptly all persons famishing labor or materials with respect to any work completed by Tenant or by Tenant's contractor In or about the Premises. No work which Landlord permits Tenant to do shat be deemed to be for the immediate use and benefit of Landlord so that no mechanics' or other claim. Ilan or other Charge shall be allowed against the estate, right, ode or Interest of Landlord by reason of any consent given by Landlord to Tenant to do work In or about the Promisees or PRIVlde materials tlherefor. NoOdrg contained heroin shat imply any consent or agreement on the part of Landlord to subject Landlord's estate to liability under any mecienics' a other Ilan taw. D:1Legsl1SrendAMk%V0RD1pRETl'-La0=%C*ta CiV"juaCafed3nll(fmatt) doc EXHIBIT 1 ARTICLE 3: TERM Section 3.01: TERM OF THIS LEASE. The term of this Lease (sometimes therein called the 'Term") means the period of the 'Interim Teeth' (ha eORer defined) followed immediately by the period of the 'Beat Term' (hereinafter defined). The •kftdm Tenn' means the ts period carrnsnoing on the date of this tease and erhding on the date irnmedlately Woeding the Red Corr Mom Deb. The "Rent Te?m' means the period oorthmenmxrtg on the Rant Commencement Data and ending on the Expiration Data. as extended pursuant to Section 21.02 hereof or by agreement executed by Landlord and Tenant or sooner te rminated as provided herein, as the case may be. During the Interim Tenn, If Tenant is not open for business In the Premises. all of the prqvislons of this Lease chap apply except that Tenants obligation to pay Rent shah abate, other than for utilities and trash charges. Section 3.02: YEARS. The term 'Year" means each successive twelve (12) month period from January 1 through December 31 occurring dirkV the Term, plus, if applicable any Partial Year. "Partial Year" means the period between and Including the Rent Commencement Date, if that date is not January 1. and the next succeeding December 31 and, If apple", if the Term ends on other than a December 31, the period beginning on the last January 1 of the Term and ending on the last day of the Term. ARTICLE 4: RENT Section 4.01: TENANT'S AGREEMENT TO PAY RENT. Ten limes and hal the manner t hereby agree b Pay *w the right of use and occupancy of the Premises during the Rent Tern, at the proiAded, the Minimum Rent, Percentage Rant and Additional Rant. As used in this Leese, the term "Rant" means, wNeclively, the Minimum Recd, Percentage Rent and Additional Rent Section 4.02: RENT COMMENCEMENT DATE AS used in this Lease, the lenm'Rant Commencement oats' shall moan the earlier of Deb"): (8) the date on which Tenant Initially opens its business b the public In the Premses (the Actual Opening (b) the calendar date set forth as the Required Opening Date in the Fundamer" Lease Provisions. Section JIM: MINIMUM RENT. (a) The base rent Tenant shall pay Landlord for each Year shah be the amount W forth In the Fundamental Lease Pro*iong as the Minimum Rent per Year and shall be payable in twelve (12) equal rnOrhahy installments, in advance. on the first day of each calendar month. Fundam(b tat LeasThe e bus sbrant Tenant rq as the Minimum hll p n? for any Partial Year shah be that amount set ford in the Fonda l Year Fraction" means a W Year tines the Partial Year Fraction. As used in this Lease, of which Is ion' a throe hundred fraction, the numerator of which Is the number of days In the applicable Partial Year. and the denominator c sixty-five (305). The base rent payable for a Partial Year steal be paid to equal monthly installments, in advance. on the first day of each calendar month, except that lane Rent Commencement Daet Is not the first day of a calendar month, than that portion of such base rat which Is adributable to the days in that first partial calendar month shah be paid, in advance. on the Reed Commencernent Date. (c) The base rent payable by Tenant pursuant to Section 4.03(a) or (b), whichever Is applicable. Is called the Unlimum Renr in this Lase. Minimum Rent shah be prorated for partial monft, If any. If tine Minimum Rent increases during the Rent Tern, for the purpose of determining the date on which Minimum Rent increase(s) become effective. a partial month shall be disregarded. (d) Intentionally Deleted. Section 4.04: KRC99AGE RENT. (a) In addition to Minimum Rent, Tenant shop pay Landiord percentage rant (thesis called 'Percentage Rent") as determined by this Article 4. The Percentage Rent for each yew she, be an amount equal to Ihe'ParaaMage• (which is set forth in the Fundamental Lease Provisions) multiplied by the amount of Gross Sales made dung such Year in excess Of the applicable Beek Pont set forth in the Fundamental Lease Provisions. The Percentage Rat for each Partial Year shah be an amount equal to the Percentage multiplied by the amount of Gross Sales made during such Partial year in excess of the Partial Year Broak Point. The term "Partial Year Beak Post" shall mean an amount equal to the Brack Point multiplied by the Partial Year Fraction for the apPlcable Partial Year and the Break Point and Partial Year Break Point are oclectvey uaferred to as the 'Break Potnr. D:hl.eg2t,Breo44MIWORDTPMT-LauslCapitalCitjkCijwlca&.adU(finil).doc s EXHIBIT 1 In the event the Term shelf commence with a partial Year which shall have less than ten (10) full catender months, them Tenarhrs Gross Sales for such Partial Year shall be calculated by taking Tenant's Gross Sales for the first full twelve (12) calendar months folowkp the Rent Commencement Date and prorating such amount by multiplykhg the amount of such Gross Sales by a fraction, the numerator of which shall be the tturrther of days such Partial Year and the denominator of whlrh shall be 365. Tenant shag then be obligated to pay eight percent (8%) of all Tenant's Gross Sala for such prior Partial Year it excess of the Partial Year Break Point Such Percentage shelf be payable on or before the lest day of the 13th month next following the Rent Commencement (b) In each Year or Partial Year. Tenant shall be obligated to pay Percentage Rent beginning with the first month in which the aggregate amount of Gross Sales made for such Year or Partial Year exceeds the Break Poled. Tenent shall pay Percentage Rent (in addition to Minimum Rent end Additional Rent) for each and every succeeding month during the remainder of such Year or Partial Year on d additional Gross Sales. Each payment of Why (eonfanQtto Sales landlord without dernand and otherwise as act forth in this Article 4 together with e? Section 4.06. grounded for in Section 4.06. sut?ject to the anrhuai ad)usirhent provided for in such (c) In the event any Break Point Is subject to adjustment during the term of this Lease, and the date on which any such adjustment Is to occur (hereafter referred m as the "Rental Adjustment Data) is other than the first day of a Year. the Break Point for the Year in which the Rental A vstment Date shag fail shall be the sum at (1) the Wal Break Point multiplied by a on fracti Of ? ? t ttal merofor of which shall be the number of days in the period coff"oncing on the first day Year In wh Adjustment Date shag NO and ending on the day immediately prior to the Rental Adjustment Date and the denominator of whIch shelf be three hundred sixty-five mullipfied by a fraction, the numerator of which shag be the number or days in th(eet?iod?r the later Break ?t Adjustment Data and ending on tte tact day of the Year In Mich the Rental Adjustment Dale shall fall and the denominator of which shad be three hundred sixty-five (365). Section 4.05: GROSS SALES. (a) The term "Gross Salsa` means the total gross receipts and recelvables of all merchandise, wares and Other 9006 sold Or lossed by Tenant and and the actual charges for al serv=S performed. business conducted and aa;ommodef , use of the Premises, wh Orr Wholesale or relag, whether ? and other occupant ein, at, , n from, a ariairhg out of the consklerstion Other than mohhey received for any of the fore ' or otherwise, and inckrdkhg U value of all collect, ircuddfng but not limited to sales, leases and services !? without reserve or deduction for kathitity or faiure to (1) where the orders therefor originate in, at from or arising out of the use of the Premises, whether delivery or de, Payment P?« collection of any ma ftorn the !Premises or from some other pig and regardless of the place of bookkeeping rated or delMered in, at or from ode taro performed by mall' tsne, Bernet, webske or sindlar means and orders received or for the Premises(")r made or performed by means of telePhorric, mechanical or otter vending means or devices in or (iv) which Tenant, and arhy subtenant, licensee, concessionaire and otter occupant, in the normal and customary course of is business. would or does credit or attribute to its operations at the Promises or any part thereof. Any deposit accepted and retained by Tenant shall be included in Gross Saks. Each Iratelrrhen t or credit sale shall be treated as a solo for the U price in the month during which such oak is made, kno Tenant receives payment therefor. No franchise. value added tax, capital stock tax, tax based upon asseof Mother ts net worth or gross receipt tax, and no Income or similar tax based on income or profits shat be deducted from Gross Sales. (b) Orgy the following shat be excluded from Gross Sala: the eomvhmient n) any excharhge of merchandise between stores of Tenant when such exchange Is made solely for operation of Tenant's business and is not for the purpose of chnsummallng a safe made ire, at or from the Premises; Qi) returns to suppliers, Shippers or manufocbrers; fg} katefh or credit refiunds to customers on transaction otherwise included in Gross Seles; In the conduct of Tenart'busin ffis?es, machinery and equipment, which are not stock for sale or trade, after use thereof Tenant to (v) amounts separately slated in the sates receipt and Ceilecled from customers which we paid by any (Bove mnefor any sales or excise tax Imposed by law at the point of safe. employee, Purchases at the Promises of merchandise on a discount be". which in no event shall exceed five percent (5%) of Tenant's Gross Saks from the Premises; (vN) receipts from.the bulk sale or transfer of Tenanrs imrenbory, fixtures or personal propel,; (vill) income derived from any pay telephone maintained for the use of Tenant's employees; and (wit) iloxance proceeds paid to Tenant for damaged. lost or stolen merchandise. D:1Le "'"d"WORDTRElT-UuesiCatpiWC*NCajuaC-kGriilkr.i).dm EXHIBIT 1 Section 4.06: REPORTING OF GROSS SALES; YEAR END ADJUSTMENT {a shell Furnish to pLandlord within twenty (20) days after the end of each calendar month during the Term a =nPWe statement (the ly sport"), cerltled by Tenant (or a responsible is a corporation), setting forth (Q the amount of Grose Sales during such month, (u) the a g eel of rice Thereof II Tenant during such Year (or Partial yew. as the case may be), inducing such month, (11) One?n amount of Gross Sales aggregate amount of Gross Sales exceeds the Break Point, and (iv) Via amount of Peroen any. by which such Torrent to Landlord for such Year for Partial Year. as the case maybe) The Hertel tags Rent previously paid by style and contain such details and breakdown as Landlord may reasonably require. Y Report shall be in such form and (b) Tenant will also furnish to Landlord within sixty ($0) days after the end of each Year a complate statement (Ore "Yearly Report") aetlfred by the chief financial officer of Tenant, stowing in ressorabte det l the amount of Groan Sales during such Year and Ote amount paid to Landlord pursuant to Section 4.04(b) for such Year. The Yearly Report Mail be accompanied by the signed opinion of the person certifying the Yearly Report speatk W stating that such person has read the definition of "Gross Saks' contained In this Lease. that such person has examined the Yearly Report of Gross Sales of such Year. that such parson's examination included such testa of Tenant's books and records as such pin coraidsred necessary under the circumstances, and that the Yearly Repot accurately represents the Gross Sales of such Year. (c) An ad)ustment shall be made with the furnishing of each Yearly Report with respect 10 Percentage Rent as follows: k Tenant shall have paid to Landlord an amount greater titan Tenant Is required to pay as Mu*num Rent and Me ter peerra a Re t(mum Rent next s of Sectiorm 4.03 and 4.04(a), Tenant shat receive a credit of such excess against bewaft due to Landlord or refunded to Tenant when the Lease tam is ended: or. if then Tenant shag have paid to be no event however, *aall tamoun he aunt of the MIniwas Rent and p paid than Re t tt steel aid by ith pay such differ at ed In Landlord under the term of Sections 4.03 and 4.04(s) for ?e Rent be paid by Tenant and retained by any giver Year be less than the Minimum Rent for such Year. (d) The reports required by this Section 4.06 shag be delivered to Landlord at the notices address of Landlord or to such other person and/or to such otter place as may be designated from time to time by nonce from Landed to Tenant N Tenant shall fail to deliver any Monthly Report and/or Yearly Report when due, in addition to all or Landlord's other rights and remedies hereunder, Tenant shall pay b Landlord, as Additional Rant an amount equal to Twenty Five Dollars ($25.00) per day for each day such statement Is overdue. Section 4.07; TENANTS RECORDS & AUDITS. (a) Tenant covenants and agrees that the business records of Tenant and of any subtenant, licensee or concessionaire shag be maintained in accordance with generally accepted accounting principles. Furthermore. Tenant shag keep at all Mmes during the Tam, at the Premises or at the home or regional office of Tenent full complete and accurate books of account and records in accordance with generally accepted accoxftlng practice with respect to all operations o (the business conducted in or from the Premises, Including the recording of Gross Sales and the receipt of sit merchandise and otter goods Into and &a defivery of all merchandise and otter goods from the Premises during the Tarn, and " reW such books and records, copies of all tax reports and tax returns submitted to tatting authorities. as wait as copies of coribracts, vouchers, checks, inventory records and other documents and the operators of such business for at least twee (3) years from the end of the period to which they in any way rebating to sudit ud t i cand or a controversy amid arise between ft parties hereto regarding the Rent payable are applicable, or N any c hereunder, ntil such sudlior co of lothbth rmay Lease, Is terminated am Such books athougrecords h such ,shall be d period may be Aer the expiralion of the Term or earlier teri period to the impaction of Such rd k Its open at ad reasonable times during the aforesaid retention Tenant have full and free access to such bo k aati9wrized nd record s representatilves, who shall upon ton (10) days' prior ploy notice for such infiormatas or explanation and audit thereof and the righand the right to require of TensK . t to uire Tenant to make suc its parr and employees and other books. recorda materials which Tenant is required to retain available at the Premises or at Tenant's home office for such examination and audit. (b) The acoep}ance by the. Landlord of payments of percentage Rent shag be without prejudice to the Landlord's examination and audit rights hereunder. Landlord may at any reasonable time. Upon W (10) days' prior written notice to Tennant, cause a complete audit to be made of Tenants entire books, records and othe maw which Tenant is required to retain (bndudng the books and records of any subtenant. licensee, concessionaire and other occupant) for al or any part of the three (3) )ear period immediately preceding the day of the Oft of such notice by Landlord for Tonal. N I audit shag reveal a dencWwV in any payment of Percentage Rent Tenant shall forthwith pay to Landlord t the amount of the deficiency. Landlord shall have the N1`1110 audit Tenant's books and records only ounce for each Year. Any information obtained by Landlord as a result of such audit shall be held in stric coofidencs by Landlord. except for any Proceedings to collect the amount of any deficiency. or the cost of such audit, or with respect to a sale, kale Or Yvfsersot the Shopping Cenkr. If Landlord shall not audit for any particular Year within the tine period during ich required to retain its books and records. Landlord shag be deemed to have waived its right to &Wiit for such Year. (c) If such audit shag disclose that (b) any of the Yearly Reports inlenbm* understate Gross Sales during the reporting period of the report to the extent of two percept (2%) or now or [d) Tenant has not recorded Gross Sales, or kept books of account and records. as and for the period required by this Section 4.07; or (N) If Tenant shall be4e4Aquent D.1e9a11&m&M1WORD1PRE11-I.esteslCViwkylGjwWeod[Kfinal).doc 10 EXHIBIT 1 44"%4% fall or refuse to deliver to Landlord the Yearly Report or Monthly Reports for two (2) conswillve montths, or more than twice in any Year or Partial year, then such understatement, failure or Default. In addition. in the event of such understatement or failure. Landlord shag refusal shad be an Event of amount of any deficiency in Percentage Rent and Me reasonable cost of said audit which shall bright to bit to Tenant the e pad by Tenant within ten (10) days after demand which deficiency will bear interest at the'Defauk Rate" (defined in Section 18.03 hereof) from and after the date K should have been paid until paid, violalfon(dlarhdloIn e e y Tenant the provisions of Sections 4.06 or 4.07 or both and as a result of such parties agree that Landlord shall have been deprived is unable to conduct a proper examination and/or audit, the putter aagree t in an amount which is not madly ascertainable and eof an important right under this Lease and, as a result thereof, will thus Neu of any other remedies which Landlord h under this Lesse, atlow•or such event, Landlord, addition band not In t Z ? shall have the right at Its option, to collect, as liquidated damages and not as a penalty, an anxnmt equal to in equity Percentage Rent reported for the period or periods in question. or () the annual Minimum Rent) a he g?ter of or periods in question. Tenant agrees to pay such liquidated damages. Payable for the period or Section 4.08: ADDITIONAL RENT. In addition to Mihknum Rent and Percentage Rent, Tenant shall pay. as additional rent herein sometimes 000ec tivdy called Additional Rent.") all atlrer amounts, sums of money or charges of whatsoever nature required to be paid by Tenant to Landlord pursuant to this Lease, whether or not the same Is designated as "Additional Renr. The terms 'faxe", 'Tax tine CAM ". 'CAM Sum" and "CAM Charge' are defined In Articles b and 8, respectively. In computing the Tax Charge. Charge and any other the Tax Charge or the CAM Cho charge to Tenant computed on the same or substantially similar basis as Landlord toward the Taxes. the CAM Sum or the sums an i hOther Like Charges we by based and 'wci0f Majors C Sums') shall be applied respectively to reduce the Taxes. the CAM Sum and the particular ( be 'OL aP?lionment and determination of the Tax Charge CAM Charge or Other Like Charge OLC Sum before purposes of computing the Tax Charge, the CAM Charge and such to be paid by Tenant and for the . the denominator of the GLA Fraction shall not include the GLA of the Majors' Premises and the Junior ajorsLike ' Premises. Section 4.09: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTIONS. Rent payable by Tenant under this Lease (whether Minimum Rent, Percentage Rent, or Additional Rent) shall be without prior demand therefor (unless such prior demand is expressly provided for in this Lease), shall be Paid w withhen a out any Lie and shall deductions or setoffs or counterclaims whatsoever (except for credits expressly permitted by this ) be paid by Tenant to Landlord at the payment address of Landlord set forth in the Fundamental Lease Provisions or to such payee and/or at such other place as may be designated from tine to time by notice from Landlord to Tenant At the and of the Term, provided Tenant Is not in default, Landlord shall refund b Tenant any amount of excess Rent paid to Landlord and any other amounts due from Landlord to Tenant Any Rent, or installment thereof, which is not paid by Tenant to Landlord within seven (7) calendar days after it Is due shag bear interest at the Default Rete. In the e cents vent any Installment of Minimum Rent or other sum under this Lease shall not be pad when due, a 1-de Charge" of five Lendl(d'06) Per is each iua so overdue may be cirargad by Landlord, as Additional Rent, far the purpose of d late tees, interest Or any incident b the hharhdling of such overdue payments. Tenant shag not be subject to any Landlord has notified Tenant of T genanl's ibicse lea lure fo pay any rents or charges due under the Lease unless and ndlT?t tails to make such payment ptxsuant b Section 16.01 of this Lease. Provided. fioxryever, in no event steal! La be requ belied to give Tenant more than two (2) such notices durkhg any twelve (12) corhsegrt ve rrhohth Period prior to Tenant interest or any other dhatges levied by Larndbrd due b Tenant s fadcae b g subject to such late fees. Tenant fails lo pay any such rent or charge within said ten 10 da such rent or charge when due. Further, if charges levied by Landlord shall be due ( ) y period. then such late toes, Interest or any other and payable from the date such rent or charge first became due. If Tenant pays any installment of Rent by check and such Check is returned for insrFficlen( funds or other reasons not the fault of Landlord. then Tenant shalt pay Landlord. on demand, a processing fee of One Hundred Dollars ($100.00) per returned dwx* plus all applicable Late Charges and N tree (3) checks are returned for insufficient funds or other reasons not the taut of Landlord, all subsequent payments to Landlord by Tenant shall be in the form of either a certified or cashiers check. ARTICLE 5: TAXES AND ASSESSMENTS Section 5.01: TENANTS TAX CHARGE. Tenant shall pay to Landlord In eadn calendar year, as Additional Rant, Tenanrs share of all reel estate and other ad valorem taxes and other assessments, impositions. excises and other governmental or quas4overnrnerhtal charges of every kind and nature (including, but not limited to, general grid special assessmenta, sewer and fro distil assesernents, foreseen as will as unforeseen and ordinary as well as extraordinary) with respecd to the Stopping Center and all improvements (hereon or any part thereof. Such taxes and assessments are Tenant's share of the Texas in each calendar year (the Tax Charge) shall be an amount y equal to the product obtained mukipying the Taxes applicable to such calendar year by the GLA Fraction (with daily proration for any Partial Year). Taxes" shall also include Landlord's reasonable costs and expenses (including statutory Interest. t arty) in obtaining or attempting to obtain any refund, reduction or deferral of taxes. D:1LegallgtOMWWORMPREIT-LeamlCapitslCi4ACajtmC ifeGrill(fiaa().cly EXHIBIT 1 n Section 3.02: PAYMENT BY TENANT. (a) Payment of the Tax Charge required under this Article 5 shall be paid by Tenant in equal mintn installments In advance in such amounts as are esumated and billed by Landlord based upon the total Taxes payable in each calendar year. Landlord may revise its estimate and may adjust such monthly payment at the end of any calendar month. The rust such installment shall be due and payable by Tenant on the Rent Commencement Date (prorated for the remaining number of days in the calendar year) and subsequent inshaAments shati thereafter be due and payable at the beginning of each ensuing calendar month during the Term. In addition to the payments provided for In the immediately preceding sentence, if. prior to the Rent Commencement Date. Landlord shall have prepaid all or a portion of the Taxes applicable to the Term, the Tax Charge shall include and Tenant shall reimburse to Landlord the Tensors share of such Taxes (caleurleled in accordance with the provisions of Section 5.01), on or before the Rent Commencement Data. ?? Landsend to Tenant an invoice sating forth Tenants share of such Taxes, together with copies of payment of such Taxes. Notwithstanding the foregoing, Landlord shall ly erpted bits Tenant for any prepaid taxes that Tenant has paid for time periods after the termination of this promptly y b (b) Agar Landlord has received the Tax bills for each calendar year, Landlord will notify Tenant of (i) the amount of Taxes on which the Tax Change Is based. (1) the amount of any refund, reduction or deferral expenses, (111) the total GLA of the Premises and Landlord's Bullding on which the Tax Charge Is based and (iv) the amount of the Tax Charge. If the aforesaid mouthy payments on account of the Tax Charge Tenants share of the Taxes payable fora given calendar Yew. for a given calendar year are greeter than against installments of the Tax Charge next Tenant shat receive a credit Landlord for the excess this Lease, and if said becoming due to o Landlord or promptly refund to Tenant upon termination of payments are less than Tenants share, Tenant shall forthwith pay Landlord the difference. Section 5.03, TENANTS ADDITIONAL TAX OBLIGATIONS. (a) Tenant shall pay before delinquency any and all taxes, assessments, impositions, excises, tees and other charges levied. assessed or unposed by governmental or quas4ovemmental authority, Capon Tenant or its business operation, or based upon the use or occupancy of the Premises, or upon Tenants leasehold interest, trade Wires, furnishings, equipment, leasehold Improvements (including, but not limited to, those required to be made su" Tenants Work) alterations, changes and additions made by Tenant, merchandise and personal property pa any kin to at any d owned. installed or used by Tenant in, from or upon the Premises. If the property of Landlord Is Included in an of the foregoing items, ire aforesaid taxes, assessmarus, impositions, excises, few arW other charm shall nonetheless be paid Tenasitionnt as excise ornother Provided. Tenant shall pay, when due and payable, any sales tsad, or other tax, assessment, other sums paid or o be pacharge ll hereunder. ow ohereafter ntle's assessed a or Imposed upon or against this Laos* or any Rent or s interest sums paid or to be paid hereunder. Should the appropriate taxing out" require that t any this tax, Lease a any Rent o other ssment excise or other charge referred to in this Section 5.03(x) be ccliected b by y Landlord or Agent for or a on a behalf alf of f such uch taxing n, an among . as Additional than such tax. Rents l m om. excise or other charge shay be paid by Tenant io Landlord or to Agent The faxes. assessments. Impositions. in accordance ism ft terms ndOf O notice from Landlord or Agent to Tenant 10 such elfecL other charm descry obligation of Tenant and not Landlord or Agent. If any tax, assessment imposition, le this a or other o 5her .03(a) shat re the this Section 5.03(a) is Imposed on Landlord or Agent, Tenant shall pay the same to ewe. Landlord w ? within charge covered r receipt of each bill therefor. thirty (30) days after (b) Nothing herein contained shall be construed to include in Taxes any Inheritance, estate, succession, transfer, gift, franchise, corporation, net income or profit tax or capital levy that is or may be unposed upon Landlord; provided, however, that, if at any time during the Tenn the methods of taxation pmva&g at the commencement of the Term shall be altered so that in Neu of or as a supplement to the whole or any part of to taxes now levied, assessed or imposed on real estate as such there shall be levied, assessed or imposed () a tax on the rents received from such real estate. or (ti) a license file measured by the rents receivable by Landlord from the Shopping Center or any portion thereof, license or (Shopping xCeMer or as fee Imposed upon fiord which Is otherwise measured by or based In whole or in pat upon the any portion thereof, then the same shall be included In the computation of Taxes hereunder, computed as if tree amount of such tax or fee so payable were Mat due if the Slopping Center were the only property of Landlord subject (hereto. If any gross receipts tax shag be payable by landlord. Tenant shall pay the portion Landlordrs rece pts from this Lease. Notwithslaading anything to the contrary contained In Section 5?p?axe? not include Income taxes imposed upon Landlord from the operation of the Shopping Center or the 4nprovemsnts thereon: provided however, that, If due to a future change In the method of taxation or assessment, any income tax however designated shag be imposed in substitution it whole or in part for any tax, assessment or charge which would otherwise be included within the definition of Tax, such other taut shall be deemed to be included within Taxes to the extent of such substitution. Sm*on5.04. SPECIAL ASSESSMENTS. (a) In the event that any assessment which is kWkMabte within the definition Of "Taxes" may legacy be p ayable in a rxxnber of instagmeMs and landlord. notmewtanding such legal rot. elects to pay such assessment in one PaMtnt such en athe sses computwhich ation o is the Tax Charge for the yew in which such payment is included shay Wude 0rlly that portion of th squat to assessment mulWW by a fraction, the numerator of which shag be the number of Years In chat portion of the Initial term term of the Lease commmencing with the Year In which such assessment Is levied, assessed or unposed end ending with fie last Year h the initial term of this Lease and the denominator of whine shay be the maximum number of Years over which Landlord so elected; provided in no event shall the hacdon be deemed in excess of 1. I D:1 AWMrendat&WORD1PRW LeLm\ClpirWkylCl &juaUfioWfiml).doc EXHIBIT 1 (b) Notwithstanding the foregoing to the contrary in (a) above, in the event Tenant shall extend or renew the term of this Lease or enter Into a new IMO for space in the Shopping Center, Tenant shah pay to landlord an additional aim equal to Tenant's "proportionate share" of such assessment mukiplied by a fraction, the numerator of which shall be the number of years in such extended or renewed tern or tre term under such new 10800 (as the case may be) and the denominator of which shall be the maximum number of years over which Landlord would have had the right to pay such assessment, had Landlord so elected; provided. however, in no event shall the aggregate of the sums paid by Tenant under (a) and (b) of this Section be in excess of the portion of such assessment which Tenant would have been obligated to pay under Section 5.01 of the Lease without the ad)uslment set forth above. Such arm shall be due and payable on the earlier of the dais Tenant extends or renews the term or enters Into another lease agreement for space within the Shopping Canter. The term "proportionate share' as used In this Section shall mean the fraction referred to in Section 5.01 of the Lease. The provisions of this Section shall survive the expiration or earlier termination of this Lease. ARTICLE 6: SERVICES Section 6.01: UTILITIES. (a) During the Tenn, Tenant shall be soley responsible for and promptly pay all charges for heat, water, electricity. sewer rents or charges, sprinkler charges, A.D.T. or other alarm system, water treabnent facility, charges, and any other utfity used or consurned in the Premises or in prohvlding healing sod air conditioning to the Premises together with all connection and service charges and all taxes or other charges levied on such utilities. Should Landlord elect or be required to supply or make available any utility used or consumed at the Premises. Tenant agrees to purchase and pay for same, as Additional Rent, every month In the Term; provided that Tenant shah not be obligated to pay to Landlord an aggregate annual arm therefor In excess of the aggregate annual amount dwellor which Tananl would otherwise be obligated to pay for similar utHy, usage and service as a retail customer of the public utility or municipal authority teen supplying such utility to the Shopping Center. In addition, Tenant shall also pay any taxes, surcharges, Impositions, impositions or other additional charges applicable to the utility smite being supplied. provided NO such taxes, surcharges, or other charges are required by law to be collected from Tenant or are paid by Landlord to Its supplier of the utility service in question. Landlord may, at its option, install an Energy Management System to efficiently conserve utility usage and Tenant agrees to pay monthly, the arm of Fifty ($50.00) Dollars as Tenant's share of the Energy Management System a from t?i? on. maintenance and upgrade costs. if permitted by low, Landlord shad have the right at any time sett' 1 the during the Term to ellher contract for service from a different company or companies providing utility Shopping Center. Check Meter: To the extent permitted by applicable law, at Tenant's written request Landlord will carne an electric check meter to be installed to monitor Tsnar's electrical use in the Premises and Tenant shall reimburse Landlord on demand for the cost of such meter and its Installation. From and after the date of such installation. Tenant's electricity component shall be increased or decreased based upon Tenant's elodric use cherarterisdos as indicated by such meter readings provided that Tenant shall provide motor readings to Landlord at such time period as shall be spectfted by Landlord to calculate monthly bills therefor. In the event Tenant fails to supply such meter readings. Landlord will have no obligation to adjust Tenant's EWdd* Component and Tenant shall thereafter pay the same as specified herein. Landlord shall have the right to verty such meter readings and the accuracy therecC and in the event of a dispute relating thereto. Tenant shat continue to pay the Electricity Component until the dispute Is resolved. (b) In the event the Premises does not prose" contaln an electric or other udrdy meter, at Landlord's request, Tenant shall, within forly-five (45) days after reoelpt of such request and at its sale cost and expense, Install a meter of a type approved in advance by Landlord. Thereafler, at Landlord's request, Landlord and Tenant shall enter Into an amendment to this Lease specifying the procedures for reading such meter and the rendering of bills to Tenant for the utility being so metered. In the event Landlord or the WA outtrordty, munhtpaity, utdtiy or other body supplies water andfor sewer services and collects for such service and/or consumption, Tenant covenants and agrees to pay the water and sewer charge (both minimum and otherwise) and any other tax, rent levy, connection fee or meter or other charge which now or hereafter is assessed, imposed or may become a Ken upon the Premises, or On Shopping Center. pursuant to law, order or regulation made or issued n connection with the use. consumption, maintenance or supply of water, or the water or sewerage connection or system. Such charges shall be based an metered readings or other formula specified by Landlord. (c) Landlord shag not be liable or responsible for any loss, damage or expense Tenant may sustain or incur by reason of any change, failure, curtailment, ntemrptlon, disruption. Uvwn our or defect in the supply supplied to the Shopping Center or Premises or if the quantity or character of the utility supplied character of any service provider Is no loo itY up gar available or suitable for Tenant's requirements and none of the lbnegoinbgoYhgy Landlord or any shah constitute an actual or constructive eviclon or wOo Tenant to any abatement or diminution of Rent or relleve Tenant from any of its obligations under the Lease. Tenant shall operate the Premises In such a manner as shall not waste energy or water or burden or damage the uttilty Ines therein. NalwiltuUnding the foregoing, if any utilities furnished by Landlord become unavailable for a period In excess of three (3) days solely by roam of Landlord's negligence and Tenant is forced to dose its business to the pubfic due to such interruption, than after the third day of such dosing, Tenant's WMImum Rent shall abate until such time as service is restored. (d) Landlord may. after thirty (30) days notice to Tenant cease to furnish any one or more of the ubldy services to the Premises, without any responsibltity 10 Tenant except to connect at Tenant's sole cost and expense. Tenants distribution facilities tfderefor with another sound for the utility service so discontinued. D:v,epr%BreadaM WORDTRErr-Lea= C*tdariCtjw,Cafecakfineq.doe EXHIBIT 1 Section 6.02 APPLICATION FOR UTILITIES. Tenant shall make all appropriate aPPkEtions b the local uglity companies at such times as shay be necessary to insure utilities being avalable at the demised premises no later Oran the commencement of the term and pay all required deposits, connection fees and/or charges for meters within the applicable time period set by the local utility company. Section 6.03: TRASH AND GARBAGE REMOVAL. Tenant shall be solely responsible for trash and garbage removal from the Premises, including the placing of all trash and garbage in containers provided by Landlord for such purpose. In the event Landlord elects to famish such service to the tenants in Landlord's Building, Tenant agrees to use only the service provided by Landlord and to pay for such service (snduding, without limitation, both the cost of leasing containers and the cost of removal) monthly. as Additional Rent, in accordance with a schedule of charges to be established by Landlord (the'Retuae Handling Charge'). In no event shall Tenant be obligated to pay Landlord more for the Refuse fimhdling Charge than the prevailing competitive rates of reputable Independent trash removal contractors for service similar to that provided by Landbrct. Termnl shall not dispose of any hazardous materials or emvirorrnentaly sensitive or reatricted item of waste in any trash facilities provided by Landlord, and in lieu thereof, Tenant shall arrange. at Its sob cost and expense, to have al such hams removed from the Premises and Shopping Center in accordance with ail Governmental Requirements (hwoku w defined). ARTICLE 7: USE OF PREMISES Section 7.01: SOLE USE AND TRADE NAME. Tenant covenants and agrees that throughout the Rent Term, Tenant shall eontinuou use and operate all of the Premises for the use let forth in Ore Fundamental Lease Provisions and under Tenant's Tr de Name forth therein. Tenant shall not use or pen A the Prembseaa to be used for any other purpose or under any other trade name without the consen PPr m swritten es for a user or of Landlord. Tenant rees that Ir Tenant or ane else claiming thmugh or under trade name riot set faith in the Fundamentd Low Provisions without t,an?pri uses the consent, such conduct shall constihde an Event of Default. Tenant shall, at its fie 0f men " licenses and permits. Including, without limitation, sign permits, required for the conduct ' procure any and all or from Premises and shall, at all times, comply with the license of business In or from y» represent or warrant that It will obtain for Tenant (or that Tenant will be each able to such obtain) any if??rpermit does not section 7.02: HOURS. Tenant covenants and agrees that throughout the Rent Term, Tenant shall conl6wously operate, conduct its business within and otherwise use Ore Premises in accordance with the terms and conditions of this Lease, including, Without limitation. the provisions of Section 7.01 hereof and all of the other provisions of this Article 7 (utbss the Premises are rendered unfit for ooaupancy by reason Of ire Or other casualty. in which event Amble 12 :hail control). Tenant will keep the Premises open for business to the public at least: (a) every Monday through Saturday from 10:00 am. until 9:30 p.m.; and (b) also on Sunday from 11.00 am. until 7:00 p.m. (unless prohibited by jurisdictional autortlles) as required by Landlord. In addition to any other right or remedy. the Break Point shah be reduced, at Landlord's option. an a per diem ba sis for each violation of the foregoing and Tenant shall pay to Landlord the Percentage Rant so oompukd by Landlord. The pordem reduction shall be OW Landlord may change the the amount of the applicable Break Point divided by 366 for each violation. Tenant agrees foregoing business hours ham time to lime 10 railed local custom or seasonal patens provided than such changes are uniformly applied to the majority of renal tenants In Larblord's Building. shall not be required to keep the Premises open during hours when the Endosed Mal Is dosed to the public. The requirements of this Section 7.02 are subject, with respect to any buskhess controlled by govemmerNel regulations In its hours of operation. to the hours or operation so proscribed by such governments! rsgulatons and are further subject to applicable Warat, state, and local environmental and other lows, rules. or regulations, guidelines. judgments or orders. more otwllhstandng anything to the contrary contained in this Lease, in the event more than two (2) Me* Premises and than d9hly (80%) Percent of the COW Food Cart Tenants of the Shopping Canter cusbmarly operate fewer hours each day than the hours that Tenant Is obligated to maintain as set forth herein. then Ta wt may decrease Its operating tours to the hours maintained by a majority of such termnts that are maintaining fewer hours than Tenant is obligated hereunder, unless such terahta are operetng such lessened hours as a result of fire. destruction or other causes beyond their control, in which event Tenant shall continue to maintain the hours set forth heroin. Furlherroom agreed siness nt ththe e foregoing shall not be deemed or construed as giving Tenant the right to complartay, cam operating its it is unders thOn and Promises srW bu be any hours non-Major retail tenants, Tenan shag not notwillhistanding wed from ar? overall applicable Major or r such other Premises throughout the term of tits Lease. obligation to continuously operate In tithe Section 7.03: OPERATIONAL REQUIREMENTS. Tenant agrees that its i (a) will not in connection with the Premises conduct or permit to be conducted any auction, fire, bankruptcy or gong out of business sales. or similar We sale, or utilize any urwo cal method of business; provided, however, that this provision shall not restrict the absolute freedom (as between Landlord and Tenant) of Tenant to detemlrhe ft own selling prices nor shall it preclude the conduct of periodic, seasonal, promotional or Clearance sales; D:U egoJlBrcndaMlW0ItD1PRF]T-[ ra4eslCapit>tlQitylCrrjwhCsfeQritt(firal) bloc EXHIBIT 1 includhigbkwdapWit not use or Peril the use Of any apparatus for sound and/or light reproduction or transmission Phonographs, radios or television, or of any musical instrument In such manner that the sounds so reproduced, trarwfted or produced shall be audible beyond the interior of the Premises. wit rot distribute, or cause to be distributed, at the Shopping Center or In any part thereof any handbills or other advertising or notices; and wit not conduct or permit an activities that might constitute a nuisance, or which are prurient or otherwise not generally considered approprialle i accordance with standards of operation for the Sh not install any antennae or other communication erlulpmenl on the roof of Landd s B uui Id1n8 ywth ter esra nywhd by Landlord of the Premises; ere an the exterior (c) will keep all maclunicat apparatus fres of vibration and noise which may be trensmkted beyond the confines of the Premises. will not cause or permit strong, unusual, offensive or dust or vapors to emanate or be dispelled from the Premises:d4ectioneble sound , sights. odors, fumes, d) will not receive lhe and . (outside area load or p nit the loading or unloading of merchandise, supplies or other property. nor ship. nor other therefor by Landlord from lane to time, wit not permit the parking or standing outside of said yea of trucks, designated manner which may interfere with fine use of any Common vehicles or Areaorrrany yp? pedestrian or ? in vehicchular use and unfoe regional In a shopping center practice, will use Its best efforts to complete or cause to be all deliv use and good regional and services to the Premises completed all deliveries, loading, unloading prior to 9:50 a.m. each day; (e) will not paint or decorate any part of the exterior or interior of the Premises, or change the architectural treatment, fixturing, decor or other appearance of the interior or exterior of the Premises, without first obtaining Landlord's written approval of such paints g, decoration or change; and wit remove promptly upon order of Landlord paint, decoration or change which has bean applied to or installed upon the exterior or interior of the Premises without Landlord's wriueh approval; (f) will keep the inside and outside of all glass in the doors and windows of the Premises dean and will replace any cracked or broken glass with glass of the same kind, srae and quality; VA maintain the Premises at its own expense in a dean, orderly and am" o rKlition and free of iseds, rodents, vermin, and other peals end will use an exterminator designated by Landlord and at times designated by L.andiord: will not bum or permit undue accumulation of garbage, trash. rubbish and other refuse; will ("ed to Sedan 8.04) remove the same from the treatises to oompecim or other receptacles designated by Landlord, and wit keep such refuse in proper containers in the Interior of the Premises until so removed from the Prem uses; gukletn(9) will can" with all applicable federal, state and local environmental and other laws, rules, regulations, Judgments and orders and all reoommerhdatioms of arty public or privet agency having autlarKy over insurance rates which now or in the future enact requirements with respect to the use or occupancy of the Promises by Tenant, inckudang, Qt limitations the requirements imposed by the Americans with Disabilities Act which imposes requirements refs" design and use of the Premises and the requirements imposed by the Clean Air Act which imposes, among others. requaements relating to the venting, use of, and disposal of chlorofluorocarbons and otter refrigerants (collectively the *Govemmental Requlrements"); will not use or permit the use of any portion of the Premises for any unlawful purpose; and will conduct its business in the Premises In all respects in a dignified manner and in accordance with high standards of store operation; (h) will provide, or cause to be provided all security within its Premises as i deems appropriate; (i) will also comply with and observe all rules and regulations established by Landlord from time to erne in accordance with Section 8.05; U) will not permit the use of any portion of the Premises for soticitatbns, demonstrations or any activities inconsistent with reasonable standards of a first class shopping mall; (k) YA not use, or permit to be used, the malls or sidewalks adjacent to the Promises. or any other specs outside of the Premises for the display or sale or offering for sale of any merchandise or for any otter business, occupation or undertaking; 0) will provide or cause to be provided within the Premises, without cost or expense b landlord, adequate fighting and security for Its licensees, invitees and employees during such periods as the Premises are open for business. (m) why maintain at all times an adequate staff of employees and a complete stock of merchandise and other goods consistent with the use of the Premises; (n) will conduct Its business to maximise Gross Sales; (o) will within ninety (90) days before or after the fifth (5th) anniversary of the Rent Com mencern Tenants sole cost and expense remodel refurbish the premises. Such Mw ent Date at refinishing, renewing and/or replacingl4 he-wom floor coverings, won wall 4doing-rsfarbtahmWA shat include fiurnisihlhhgs, the Premises and, in : calling des, ft r work necessary to put the Premises in a fresh and its new state of i. all other work appearance and conhdido far-, A P191119 Qft;L' D;Il. pABren&WWoRDiPREIT-LcwftlCspita[CiiyX:iju,Cr fe(3ritt(t ,o,dx EXHIBIT 1 n ? (p) will conduct its labor relations and its relations with employees in such a manner as to avoid a4 strikes, picketing, boycotts or hand billing at or about the Premises and the Mail Premaes. Tenant further agrees that If, during the period of any wait by or for Tenant in or about the Premises in correction with such work Linage is a strike, picketing, boycotting. hand billing or other activity objectionable to Landlord, Tenant shall remove or cause to be removed from the Premises and fine Mall Premises all persons, to the extent not prohibited by law, until such strike, picketing, boycotting, hand biUkg or other activity teases and the cause thereof is settled to Landlord's satisfaction; (q) will not, without obtaining Landlord's prior written approval, which approval may be withheld in Landlord's discretion, install any storage or propane tank. whether above or underground, at the Premises or in the Stropping Center and If Landlord shall consent to such installation, Tenant will comply with all applicable taws, regulations and underwriter requirements concerning the installation, operation, and closure of such tank. Upon termination of this Lease. Landlord shall have the option of requiring that Tenant, at Tenant's sole cost and expense, perform tests retailng to the condition of such tank and/or remove any tank installed by Tenant and associated contaminated material. Tenant shall be deenrod the owner and operator of any tank Installed by Tenant Tenant shall relocate such tank at Landlord's request and at Tenant's expense, to another location acceptable to Landlord; (r) will, It applicable, Install and property maintain a grease trap and either a 'black Iron duct", or other self- contained venting and exhaust system acceptable to Landlord. Such items shall be installed in a manner, of materials and at a location approved in advance by Landlord and shall. at Landlord's option, connect to trunk facli ies. 4 any. supplied by Landlord for same; (s) will not use the plumbing facilities for any purpose other than that for which they were constructed and will not dispose of any damaging or Injurious substance l herein; (t) will not Install, or permit to be IrWAted or operate any coin or token operated vending machine, game machine. pinball machine, pay telephones, pay lockers, pay todets, sales, amusement devices and machines for the sale of beverages, foods, candy, cigarettes or outer commodities, except solely for use by Tenant's employees in non soles area and not to exceed collectively two (2) machines or other devices; and (u) will not store, display, rent or sell any audio or video cassettes. (v) Sampling Rights: NoWftstandho anything contained herein to the contrary, provided Tenant does not Interfere with the acloining businesses or impede the gory of pedestrian tratffc In the common areas. Tenant shah have fine right to offer samples of b food products and copies of its menu only in front of and v&M On (5) fleet of the Premises, provided father that Tenant shall keep such area free and dear of any debris resulting from such sampling. Section 7.04: TENANT'S USE OF ROOF. EXTERIOR WALLS, ETC. Tenant shag not, without having obtained the prior written consent of the Landlord, perform arty worts of any nature whatsoever to the roof, exterior wells or to any of the structural portions of Landlord's Bulldirg or the Premises or in area reserved to Landlord or excluded from Tenant In the Store Design Criteria. Any damage to the Premises or any person or property oc urring as a result of a breach of this provision shag be the sole responsbillly, cost and expense of the TenanL NoNrigdslanding Tenant's rights set forth elsewhere in this Lease, Landlord may erect additional stories or other struc4ees over all or any part of the Premises, Larrdlad's Building and any otter part of the Mail Premises. In connection with such erection, or otherwise, Landlord may relocate Tenant's equipment and may erect temporary scaffolds and other aids to such construction at Landlord's sole cost and expense. In the event Landlord elects b erect additional stores or other structures over all or any part of the Premises, Landlord shag make a good faith effort not to obstruct or to interfere with the conduct of Tenants Nwsinw; provided, however, if Landlord's catstruction renders the Premises unfit for the camyig on of Tenant's lousiness, then and from and after the third (3rd) day of such Interference, Tenenrs Minimum Rent shag agate until such time as the Premises are again fit for the carrying on of Tenant's business. Section TA3; OPERATION OF HVAC SYSTEM. Tenant agrees. during the ttours the Premises is open for business, to cm*W and/or operate as applicable he HVAC system serving the Premises regardless of whether such equipment was Installed by Landlord or Tenant so that conditions inside the Premises are maintained within a range of 72 to 75 degrees FahraMnelt or within such range as may be prescribed by applicable governmental authorltles so that heat, ventilation and cooled air are not drained from the Premises or the Enclosed Mal. Section 7.06: EMPLOYEE PARKING AREAS. Landlord may. from time to time. designate that particular portions of the Shopping Center parking areas (the 'Employee Parking Areas') ere to be used by Tenant and its employees, or other Individuals Meting at or from the Premises. If Landlord does so. Tenant and No employees shag park their vehicles orgy in the Employee Parking Areas. tenant shag fumish Lamdicrd with a: list of Tenanrs and employees' vehicle license numbers within fldeen (15) days after Tenant opens for busirmw In the Premises and receives Landlord's request and at Landlords request, the Tenant shall thereafter notify Landlord in writing of any addition, deletion or other change to or from such list within frva (5) days after Landlord makes such request Tenant shag notify each employee in writing of the provisions of this Section 7.06 prior to each employee c mmsncng employment or work at or from the Premises. If Tenant or any of ft employees do not park their vehicles in the Employee Parking Areas, Landlord may gWe Tenant notice of such violation. H Tenant does not case D.,VAg"ren&WWORDftW LeasaWApiWCitylCkjuaCsWnlj(f=D.doc 16 EXHIBIT 1 such violation. or cause such violation by the employee to cease, as the case may be, within two (2 days DOI*$ notice of violation Is given, Tenant shall pay to Landlord. as Additional Rent. an amount egipelto Twent afterve Landloffs ($25.00) per day per violating vehicle. For any subsequent violations, said T Y Five Dollars violating vehicle charge shah commence without the necessity of further notice. and y Five shall,(in addition, have the right to have the violating vehicles lowed at TeReAf vehicle owner's expense. Section T.07: NON-COMPETfTION COVENANT. Tenant covenants and agrees with Landlord that through the Term, neither Tenant or any "Affiliate of Tenant' (hereinafter defined) shall directly or indirectly own, operate or manage or have a financial Interest in located In a food court in a regional mall operaft under the saline trade name any business which is ft#WF Tanok at 91 Foom-4110-12fef"ises 011C 'Competing Store") within sea.- 4p) three (3) muss from the property line of the Shopping Center nearest to the Competing sun (the foregoing covenant being hereinafter called 'Temmts Non. Competition Covenanr). Affiliate of Ten"r means a proprietorship, corporation, Ihcorporaled sasoe Mbn or other person Or N)W "canlro111W, "Controlled" by or under common 'eontrrr uwith j. The words "COn1roINng". 'controlled" and "control" shall have the meartings given them under the Securities 1934 as amended. W the TenarWs Non-Compefition Covenant is violated, than, in addition to all a rr b and Act of remedies diso, Landlord shall have the right to add the'gross receipts Of the Competing Store* ftrelnefter , made by Tenant hereunder for the purpose of compuft defined) to the Gross Sobs Cmo 5Rent at The phrase 1gra receipts coon a of the Competing Stour" shall be determined applying the definition Percentage 4.05 to transactions of the Competing stars. Tenant shat include add and Identify of Its business at the remises in all dvallsernents made by Tenarht in which the address and idenlHy of any similar local business of Tenant is mentioned and shat not divert from the Promises any transactions or other business which would occur at or from the Premises. Section 7.08: SIGNS AND ADVERTISING. Tenant shall not place or permit to be placed on the exterior of the Premises or windows or in the store front or root. any sign, banner. decoration. fettering or advertising matter (collectively a "sign) without to Land?wd s prior written approval- Tenant shat submit to Landlord reasonably detailecl drawings of its proposed signs for review and Landlord prior to utilizing same: however, Tenant may without such approval use in the store front professional s ride reasonably shed signs Indicating prloes. styles and like informaticn. All signs shad be insured and mainU*W at all times by Tenant In good condition, operating order and repair. Flashing slgrhs am prohibited. Tenant shad instal one Mternoly fkiminated, Individually lettered sign or other type of sign as specified by Landlord above the storefront of the Premises and professionally lettered name signs on its service doors in accordance wNh the Final Plans or other plans and specifications previously approved by Landlord. Landlord shat have the right, after twenty-four (24) hours prior written notice to Tenant and witfwut liability for damage to the Premises reasonably caused thereby, to remove any items displayed or affixed In or to the Premises which Landlord determines (1n its reasonable judgment) to be in violation of the provisions of this Section 7.08. Tenant will keep the storefront sign and display windows in the Premises lighted during all periods drat the Shopping Center is open to the public and for ore-hat hour after required business hours and for such other per" as may be reasonably required by rules and regulations established in accordance with Section 8.05. ARTICLE 8: COMMON AREAS Section &011: USE OF COMMON AREAS. (a) Tenant and its employees and lnvflees are, except as Wwwiae specireally, provided in fhls Lem, authorized, empowered and privileged during the Tam to use the Cowan Areas for their reopeclive Intended purposes in common with other persons. Tenants right louse any meeting room or auditorium, If any, In the Common Are shall be sLb)M to such tercet es aid payment of such fees or charges therefor as Landlord may from time to thne adopt goverrAv the use (b) Landlord shall at cif times have the right to uttize the Common Areas including, without limitation, tie Enclosed Mall for promotions, exhbits. carnival type shows, rides. outdoor shows, displays, automobile and other shows or events. the leasing or seen N of Idosks, push carts and food Willes. landscaping, decorative items, and any other use which, in Lari lWa judgment, tends to attract customers , Orem, displays, or benefit the seasonalcustomers of the Shopping Carta. Section 8.02: COMMON AREA MAINTENANCE SUM. (a) The term "Common Area Maintenance Swn" (or the "CAM Sum") shall be charged and prorated in the manner thereinafter set forth end shall mean all sums incurred in a mama doemed by Landlord to be reasonable and appropriate and for the best interests of the Shopping Center in conraediom with the operation, repair and makdenarwe of the Common Areas and to Shopping Center (and any additions thereto), including. without Imitation. the costs and expenses of: (1) operation. k"pection and/or mahtenamce of the storm. sanitary, electrical, gas. steam, water, telephone systems, lighting system (including poles, bulbs, and fixtures), and other utility systems, including pipes, cluck I D:1l.egsll ,daMIWOR,pRETf-LaceslCapitalCit CAA mCafeGriil(fiaZQ.doe EXHIBIT 1 n and similar items; directional signs and other traffic signals, markers, controls, signs (including all identification signs) both on and off eke: (1) snow, ice, trash and garbage removal, pest control, and doearft painting, sweeping. striping and repaving sit parking surfaces, services areas and other portions of the Common Areas; (11) operation and/or maintenance of all heating, vehtlating and air cooing and other utility systems, emergency water and sprinkler, sue, life safety systems, pumping systems. electrical sysliame and all escalator and elevator systems and any other items, faciit e, equipment, and systems furnished by Landlord as part of the Common Areas; (Iv) premiums and other charges fox insurance to the extent provided by Landlord, including without Imitation. liability Insurance for personal and bodily injury, death and property damage; iroxenee covering Landord's Building and to Common Areas against fire and extended coverage perils; theft or casualties; workers' compensation; plate glass Insurance for glass exclusively serving the Common Areas; baler Insurance (If carried); losses borne by Landlord as a result of deductibles carried by Landlord under an insurance policy or self insurance by Landlord; Landlord's risk management expenses and rent Insurance provided by Landlord pursuant to Sedan 11.02; (v) operation and/or maintenance of gazebos, fountains, art features, sculphum. fencing and similar items located within the Common Areas and interior and exterior planting, replanting and replacing of all flowers, shrubbery, plants, bees and other landscaping within the Common Areas; roofs, $War mairisname of Landlord's Bulding's structure, including, without imitation, floors. doors, we(Ils)ceill operation skylights. and windows; (vii) maintenance, and depreciation of all machinery and equipment used in the operation or maintenance of the Common Areas (including but not limited to all escalators, elevators and other vertical transportation (if any), security vehicles and equipment) and all personal property taxes and other charges Iuurred in connection with such machinery and equipment (vii) all license and permit fees. any and al padding surcharges that may result from any environmental or other laws, rules, reguialiom, guidelines or orders; (Ix) the expanse of installation and operation of loudspeaker systems, musk program servk:m, cable television systems, or aimlar ludo or video transmission systems; (x) personnel, including without Imitation, cleaning and maintenance personnel. Landlord's on-site management staff (which Includes the General Manager, Assistant Manager. secretaries and bookkeepers) together with the uniforms, permit, payrd taxes and employee benefits of all such personnlel; (xi) the expense of semrity personnel and equipment. inducing, without limitation, unifomts as WON as transportation and surveillance equipment; Odi) all costs. charges. and expenses incurred by Landlord in connection with any change of any °ompa?y providing electricity service, Including. without limitation. maintenance, repair, instaliation, and service coals assodated therewith; (unit) all expenses incurred by Landlord at the same rate per unit Landlord charges to tenareis, in, connection with refuse disposal, water and sewer, gas, steam, exterior site lighting. electricity, air conditioning, heating, and other utilities, Including, without limitation, any and all usage, service, hook-up, connection, a valabW and/or standby fees or charges pertaining to same; (xiv) Landlordle supervisory charge in an amount equal to fifteen percent (15%) of the total aggregate cost of operating and maintainkhg the Common Areas. ndud'ng but not timifad to those things listed in Section 8.02(a); and (xv) expanding. adding to or reeonfigwng the Common Areas (or arty portion thereof). (b) Nolwit standing the foregoing, the CAM Sum shag not include: 0) the expense of any repair or "cement required of Landlord pursuant to the rametrudiort obligations of Section 12.01; (11 depredation (other than depreciation as above speeiiiedk and (B) any utilities which are direly metered or submetwred to tenents in Landlord's Building. (c) Notwithst Xft anything contained in this Lease io the contrary, in calculating the "CAM Charge" (defined in Section 8.03), the CAM Charge may be based upon Landlord's astirteetes, which estimates and payments thereon shell be subject to adjustments in future bilirgs to Tenant based on Landlord's actual cost, it being understood and agreed Ifat in determining actual coals, Landlord in its sole discretion, Will make allocations of certain terns between the tendosad Mal aced other portions of the Shopping Center of which the Enclosed Mal is a part, ~ need not be based on relathre aims or use. (d) Landlord may cause any or all maintenance services for the Caremon Areas to be provided by an independent contractor or contractors or others and the costs therefor shall be included n the CAM Sum. Except as provided hereihabove, we of the costs for the original construction and installation of the Common Areas shall be Included in the CAM Sun. (e) If Landlord from time to *W acquires, or makes available. additional land or Improvements for parking or otter Common Area purposes, the CAM Sum stag also include at costs and expenses he rred by Landlord In connection with the operation or mainterance of said additional land and improvements. (f) The words '/maintenance, "mak t ri* or "maintanW as used In this Artide 8 includes, without Imitation, all repairs, replacements and other work and service of any type whatsoever. Section 8.03: CAM CHARGE. (a) Tenant shall pay to Landlord, as Additional Rent, Tenant's Share of the CAM Sum in the manner set forth D:\L#W B mnWWORD1PREIT-I.eiv rApitaiC WCq mCYfeGn71(tsui).doe EXHIBIT 1 in Section 8.03(b) and (c) below. Tenants share of the CAM Sum for each calendar year shall be an amount WI to the CAM Sum for that period multiplied by the GLA Fraction (the *CAM Charge"). For any Partial Year. the CAM Sum win be multiplied by the Partial Year Fraction with the resell multiplied by the GLA Fraction, (b) Tenant shall pay Landlord on the Rent Commencement Date and on the fret day of each calendar month in the Term thereafter amounts estimated by Landlord to be Tenants monthly share of the CAM Sum. Landlord may adjust said amount at the and of any calendar month on the basis of Landloces experience and reasonably anticipated costs. (c) Following the end of each calendar year, Landlord shag furnish Tenant a statement covering the calendar year just expired, certified as correct by an independent public accountant or an authorized representative of Landlord, showing the CAM Sum and the amount of the CAM Charge and the payments made by Tenant with respect thereto as set forth in the preceding Section 8.03(b). If Tenants eggragete monthly payments on account of the CAM Charge are greater than Tenants share of the CAM Sum, Tenant shag receive a credit for the excess against monthly installments an account of the CAM Charge next booming due to Landlord or lrmediately rafmW ed to Tenant wlHdn thirty (30) days N the Rent Term has expired and Tenant Is not Indebted to Landlord; if said payments are less tart said share. Tenant shall pay to Landlord the difference forthwith. (d) Landlord may have heretofore elected to spread, and may hereafter oleo to dread. the amount of a the expenses of the CAM Scan over such period or years as Landlord shalt determine b am any of periods instead of kowing such expenses entirely in the by n9 them over such expense yam Incurred during each year i year d, of in w the hich event, the annual amortization amount shall be deemed to be an nolwlthstand that such ex amorlizstion period, in9 penes may have been expended or incurred prior to the execution of this Lease. (e) Tenant's CAM charge for the first full year shall riot exceed $8.27 per square foot. Notwithstanding anything contained herein to the contrary, Landlord agrees that Tenant's maximum payment of As CAM Charge for the second twelve (12) month Year shall not exceed the first such Year's payment pka flylpercent (5V. of such payment; and further, except as set forth below, Vial any subsequent Year's payment shall not exceed Me Immediately preceding Years payment plus fWe percent (M of such payment. In making the aforesaid cakalations. Common Area Costs relating to utiities, Insurance, renovations, snow removal and security shall be excluded from the limitation for each Year and Tenant shall pay its pro rata share of such hems without grrhlt. Section 8.04: CHANGES BY LANDLORD. As between Landlord and Tenant, Landlord shah at all times have the right and privilege of deforesting the nature and extend of the Common Areas and of makig such changes, mornengernent, additions or reduction therein and thereto from time to time which In its opinion are deemed b be desirable or which are made as a result of any iederai, state or local ernironmenial or other law. rule. regulation, guideline, judgment or order, inckAing but not limited io, the location, relocation, enlargement, reduction or addition Of driveWays. entrances, exits, automobile parking spaces, amp" and customer parking areas (if achy), the direction and Now of bW k, installalion of VrKlscaped areas. and any and ag other Willies of the Common Areas. Landlord (or ethers entitled to) may from time to rasa make alterations. renovations, reductions, or additions anywhere within Landlord's Building or to the Common Areas at other part of the Shopping Canter or any lands or improvements added tirereto, construct additional buildings or improvements on the Common Areas or elsewhere and make alterations thereto build additional stories an any buildings ct multi-level or elevated or underground parking Willes, and construct roof, wells. and any other Improvements over, or in connection with any part of, or all of, the Common Areas In order 10 enclose creme. Landlord agrees that it shall nol ahfhataattially alter the Common Areas of the Shopping Center to an extent which substantially Interferes with the physical ability of Tenant to continue Its normal business activities. Section 8.03: RULES AND REGULATIONS. Tenant agrees that Landlord may establish and from time to time change, alter and amend, and enforce against Tenant. such reasonable ndes and regulations as Landlord may deem necessary or WAsabie for the proper and e(5ctent use, operation and maintenance of lute Common Areas, provided that all such rules and regulations affecting Tenant and Its lnviteas and employees shall apply equally and without discrimination to substantially d of the retail tenants in Landlords Bulkting or substantially ail retail tenants engaging In certain ads or of a certain use. The rules and regulations herein provided for may include, but shag riot be limited to, the hours during which the Common Areas shall be open for use. Section 8.08; LAW DLORD'S MAINTENANCE AND CONTROL. Landlord agrees to maintain and operate, or cause to be maintained and operated, She Common Areas In good and reasonable owKVion and manner and In keeping with industry standards for similarly situated enclosed regional malls. Landlord shall, as between Landlord and Tenant, at all times during tine Term have the ado and exclusive control, managernerd and direction of the Common Areas, and shat provide or cause to be provided, secuity in the Common Areas at a level determined by Landlord (and Tenant shall provide, or cause to be provided, adequate security within Tenants Premises as Tenant deems appropriate). Landlord may at any time and from time to time during the Term exclude and restrain any person from use or occupancy of any of the Common Areas, excepting, however. Tenant and odw tenants of Landlord and bate fide Invitees of either who make use of said areas for their intended purposes and in acmdance with the rules and regulations estabished by Landlord from time to time with respect thereto. The rights of Tenant in and to the Common Areas shall at all tines be subject to the rights of others to use the same in common with Tenant, and it shag be the duty of Tenant to keep all of the Common Areas free and clear of any obstructions or D:UAg&T%BmsdaMIWORD1PMT LemsTapilr<laWCajunCafeGrit(fisan.doc 19 EXHIBIT 1 n interferences created or permitted by Tenant or resulting from Tenant's any time to time dose all or any portion of the Common Areas to maker Operation. Landlord may at an Untie and from oPnicn of Landlord, be necessary to prevent a dedication thereof or thessccral u of?any ?s, or to such ardent as may, In the ghts to person or to Ihe public therein, to dose temporarily or all portions of the Common Area and to do and pnn? Such Other acts in and to Common Areas a, in the exercise good business judgment, Landlord shaft improvement of the convenience and use thereof b ddermine be to advisable with a view to the by occupants and tenants, their employees and invitees. ARTICLE 9: PROMOTION OF SHOPPING CENTER AND MINIMUM ADVERTISING Section 0.01: MARKETING SERVICE. `Nlarkat(a) Service Landl to Urnish maintain advsrUs Iand sorbs ? and promotional service (herein called the the Shopping Center. Landlord has estabilshed or will establish a fix n• Mar?tinb Landlord's judgment, will be ieri Landlord to pay ell casts and expanses associahed with the formulation end g Service Fund") to be used by of an advertising and other promotion of the Shopping Center. The program may carInclude, rying out withou t t ongoing P special rogram for the limitation, shows, dIspleys marque". decor, seasonal events, advertising for the Shopping Center, promotional Nterebrne evern and , signs, and other activities to market the Shopping Center based on sums collected from coal and expense of the Mark tenants Tenant hshag e s mount as its share In the afktg Service for the initial Year of the term of the Lease. ttt amount set foot In the Fundamental Lease Provisions (herein called the 'Marketing Service Charge"). The Marketing Service Charge for any Pa rtial Year shag be determined by muIMPOV Tenably Marketing Service Charge by the Partial Year Fraction. The b Minimum Advertising Charge for any Partial Year shag be determined by muttiplyIng Tenant's Minimum Advertising Charge the Partial Year Fraction. (b) Landlord may appoint an advisory committee, composed at least of a representative representative of each Major. and a representative from each of six (6) tenants in Landlord's Buildingoto re?iiew the advertising and other promotional activities provided. Such committee stall function sole in an to Landlord's discretion. M advisory capacity subject (c) In addition, Landlord may use the Marketing Service Fund to defray the costs of administration of on Marketing Service, Including, without limitation, the salary and benefits of a marketing director and related administrative personnel. rent and Insurance. d NOM016tendin9 the Provisions of this Article 9. Landlord That Landlord will, on and after a oerta(n date thereafter, nolonger may, at any time, in its sole discretion, decide groin may cease performing the Marketing Service on the date $o SPscIfiWd by the Pr Landlord. ovLandlord. the Marketing Service. Landlord Landlord to breach or fag to perform any a , Provided Meat nothing d person herds that require the Marketing Service. 9 Landlord determines tha t it or obligation has me* with Is or may be r of any such ar to any third failure. In o lord ne rt not cease Performing the Marketing Service until Landlord determines that such risk ap breach or faguro Landlord need not Section 9.02: TENANT'S NiNINUM ADVERTISING OBLIGATION. (a) In addition to, and not in Neu of the Marketing Service Charge, Tenant agrees to participate in joint advertising Programs comprised of advertising media used by Landlord to advertise the shopping Center and tenants thereof (herein called 'TenoWs Minimum Adywitsing Obggation'). The Initial annual expense to Tenant for such joint adver4sing programs (the "Minimum Advertising Change') has been computed to be the sum and/or at the rate per square foot of GLA of the Premises set forth in the Fundamental Low Provisions as hone same may from time to time be shag 4u t d determined with the provisions of Section 9.03 thereof. The Minimum Advertising Charge for erW Partial Year a by muiVying Tenant's Minimum Advertising Charge by the Partial Year Frac tlom advrsrtfs (b) Tenant shag advise Landlord's marketing sector annually (or more frequently 9 requested) of the joint ail Programs in which Tenant Intends to participate in each calendar year. N Tenant fags to famish advertising copy as required, or for any other reason falls to participate in any joint advertising program for which it has been committed. Tenant shag within sixty (60) days after the end of such calendar year. pay to Landlord the deference between Admen vertising Charge plus am half property spent by Tenant in fWfiiment of Tenarny Minimum for the Year ending insuch cObligadon arid alendar tie Mianum I year. Funds paid to D:Ni ePtOn'odaMIWORDIPRW-LnmrApiWCit) Ca.nuWeOrffl(&W).doc 20 EXHIBIT 1 (0 landlord reserves the right in its sole discretion, to recommence providing the Marketing Service at any time after Landlord ceased providing the same. r^: andlord M I Lndio mapy dsuant t i the priming sentence shag be spent for the promotion of the Shopping Center in such manner 88 . Section 9.03: ADJUSTMENTS AND CHARGES. (a) The Marketing Service Charge and Minimum Advertising Charge shall be adjusted annually by a percentage equal to the lesser of three percent (3%?) or this percentage increase or decrease in the electronic, print and outdoor advertising rates of this media used for advertising and Promotions in the preceding calendar year In the media market in which the Landlord's Building Is located; provided, however, that the Marketing Service Charge and the Minimum Adver the Rent Commencement Date ? occurs "I be conssideredFundamental the a base calendars year every calendar year In other calendar year Mereafter a revised base calendar year in computing the adjustments hereunder. (b) The Marketing Service (barge and fine Minimum Advertising Charge shall be paid in equal monthly knstagrneMs. in advance, an the first day of each month, except that if the Rent Commencement pate is not an she first day of a calendar month, then Met portion of Ore Marketing Service Charge and the Minimum Advertising Charge which Is attributable to the days in that first partial calendar month shall be paid in advance on the Rent Commencement pate. (c) Landlord may charge all costs and expenses of providing the Merkelhg Service In any calendar year against the budget therefor. Said costs and expenses may include wftiwut Imitation the following: (1) the services of a marketing director and all staff and outside consultants (including professional marketing service organization) deemed necessary by Landlord to carry out effectively the marketing and public relations objective of the Marketing Service, including WOW Imitation all payroll, payroll taxes and employee beneNts of any such director and staff, () such reasonable amount of space within the Landlords Building as may be necessary to carry out the Marketing Service, the rental therefor to be comparable to the rental for similarly sized commercial space; (B) all actual costs charred In advertising and promoting the Shopping Center, Including without limitation radio, newspaper, television, direct and indirect costs of services, art work, copy, printing, paper, stationary and supplies; and director. (iv) such office equipment, utilities and telephones as may be deemed necessary by the marketing (d) The marketing director and consultants shag be under the exclusive control and supervision of Landlord, and Landlord shag he" the sole authority to employ and discharge them or either of them and the staff of the director. (a) Notwi0Wanding the apportionment of amounts to the above described marketing and advertising funds as set forth in both this Article 9 and h Section (k) of the Fundamental Lease Provisions. Landlord hereby reserves the right from time-to-time to allocele the total amount received by landlord for such funds in any manner whatsoever Landlord, in its sob discret on. deems appropriate, so kung as any and all such funds attributable to said marketing and advert funds are used only to defray the cost of the marketing and advertising programs initiated by Landlord and to market advertise and promote the Shopping Center. Sewtkun 9.04: DISSOLUTION OF MERCHANTS ASSOCIATION. In the event there presently exists a merduOs association In use In the Shopping Center. Tenant agrees that Landlord shag have Me unilateral right to take any steps required to terminate the same and to repiaee such marchants association with a marketing service, promotion fund, advertising fund, or any other similar anW designated by Landlord in which event. upon notice to Tenant. Tenant shag automatically be deemed a member thereof and shall contribute to the same the amount which Tenant immediately prior to such termination was required to contribute to the mercharrrs association. Further, Tenant does thereby Irrevocably assign to Landlord all of Tenant's voting rlghts contained in any bylaw or adieu similar document forming or governing the administration of any such merchants association. ARTICLE 10: CONSTRUCTION WORK Section 10.01: APPROVALS AND STANDARDS. Tenant $hall not perfomn any construction or make any alterations or changes in or to the Premises at any time durkg the Term (harsh sometimes Cogecttveiy, called 'Construction Work') without LaMordV prior written consent. In no event shag Tenant make or cause to be made any penetration through any roof, tkhor or exterior or corridor wag without the prior written consent of Landlord. To the extent same does not Conflict with or Contravene the Intent and terms of Section 11.04 below, Tenant shall be dkft* responsible for any and ar damages, including. without Imitation, damages b Landford's Buii ft. M6 Premises and the premises Of other tenants in Landlord's Building resulting from any of Tananrs Construction Work, whether or not LWWbrd's consent therefor was obtained. Any and all Construction work which is Consented to by Landlord shall be performed in accordance with (a) plans and specifications prepared by a licensed arctUtect, or engineer and approved In writing by the Landlord before One Commencamsir t of the Construction Work, (b) an necessary governments[ approvals and permits, which approvals and permits Tanant shag obtain at Its sole expense, and (c) all applicable laws. rubs, regulations and building codes relsft thereto. AI Construction Work Shell Conform to Landkifft Store Design Criteria and shag be performed in a good and workmanlike manner and diligently prosecuted to completion to the and that the Promises slush at all times be a complete unit except during the period of the Construction Work. Any Construction Work performed by Tenant without Landlords consent shall be returned to its original Condition at Tenants expense upon request by Landlord. Tenant shall perform any Construction Work in such a A:1LegaM-ud"WOPD1 g=-I.cafe$WgpitdCigACgwCsWzofimt).doe 11 EXHIBIT 1 manner as not to obstruct the access to the premises of any WI»r occupant to the Enclosed MaA nor obshuct other Common Areas. Notwithstanding anything set forth in Section 10.01 10 the carprary. Tenant may without Landlord's consent, make alterations to tike interior of the Premises which do not alter. modify or in any Other manner whatsoever affect to structural portions of the Premises (including, but n limited to, the storefront) and/or the structural integrity, of the buNftg of which the Premises shah forma % mbkV. electrical, heating, ventilating or air conditioning systems and inst?ate oust Promises. provided that any such alteration (or series of such related allaretions) doesnnot Involve a cost or may be) in excess of Ten Thousand ,__?.?Dotfars (510.000.00) per Year. Section 10.02: INSURANCE AND RECONSTRUCTION. need in the event Tenant shah Perform any Permitted or required Construction Wwk, none of the Construction Work be insured by Landlord under such insurance as Landlord may harry upon the Lwx%N 's Building nor stroll Landlord be required under any Provisions of this Lease relating to reconstruction of the Pm ffwm to reconstruct or reinstall any such Construction Work. ARTICLE 11: INDEMNITY AND INSURANCE Section 11.01: TENANT'S INSURANCE. (a) Tenant further covenants and agrees that from and after the date of delivery of the Premises from Landlord in Tenant. Tenant will carry and maintain, at its sole cost and expense, the following types of Insurance, in the amounts sPecihed and In the form hereinafter provided for. M Commercial General Liability Insuranca. Commercial general liability insurance covering the Premises and Tenant's use thereof against claims for `Personal and e ?ProPany damage' and '11)1 HoomPb6ed operations' liablik (as the efor"M iWm aged •definedhin wchh Poky) occurring upon, In or about the Premises and Terws activiil as in the Common Area, such inwrsioe to afford Protection in iM U mt of not less than $3,000,000 ragerdloss of the number of persons palming injuries or damages arising out of any occurron0c The Tenant rising out of insurance coverage required under this Section 11.01(a)(i) shall, in edam. extend b any labgily of the for contracprai provided in 3oction 11.03. Therefore, such policy shall not contain any exclusion YabYlty coverage for any of the foregoing oeva?w. The feral insurance Policy or Policies must ?Df Qrt under the Iiabl apply Separately to the Premises and to Tenant's usa e th tinereof. . The co rtifi cate of of insurance Id&vft the commercial general liability form of polies shat specify on the face thereof that He Omits of such policies apply separately to the Premises. (1) Boilers. Bobs and machinery insurance in adequate amounts on all fired objects and other fired pressure vessels end systems serving the Premises (t WVX and If the said objects and the by them or result from them are not covered by Tenant's extended a damage that may g moused amount not less than 3"1110,000 and be issued on a ?"°? Insurance, then such irgcxance shat be in an (ill) Tsrant 1-41411310111011d pn «plac?ment cost basis. Tenant's leasehold provernents and Property. insurance covering all of the items Included in P its, he b%. Vanthating and or condrlionmg equipment and alt other improvements and beterments installed by (or demised by this Lease to) Tenant. MW all trade fixtures, from time to time In, on or upon the Premises, and alterations, add&lons or changes made by TAbearrant and pursuant ur Article personal o Articty 10, In an amount not less than one hundred percent (100%) of their full ?"e"I coal to ti ms Term, Providing special form coverage, including but not irmlled to, protection ld ns perils from time >n time during the slate form of fire and broad form extended coverage Insurance , tV '"il Insurance Included writ the standard vandalism and malicious misph)ef. Any policy proceeds froStich Insurance against aP u ft damage. company for the repair, reconstructor and restoration or replacement shay be held in bust by Terh>arMs inaureINS Lease shay cease and tsrmlriate under the provisions of Article 12. Property damaged or destroyed unless this Liability insurance allordi sue, ?"nsatlon And Employees Lablllty. Workers, ComPenaation and Employers have minimum imits of $1,000 tiltulory coverage and containing statutory limits with the Employers Liability Portion thereof to (v) Business interruption Inshramx. Business intemuptpn Insurance equal to not Was than fifty Percent (50%) of the estimated gross eamirW (as defined in the standard state form of business Intenupam insurance Policy) of Tenant at the Promises which Insurance shah be issued on anal risks' basis (or its, equivalent). (b) AN Policies of insurance provided for in Section 11.01(a) shall be issued by insurance companies with a financial refirg of not less than A V!I as rated in the most current avalable 'Best's Insurance Reporte. and qualified to do business in the state in which Landlord's Building is located. Tenants specified in SecUm 11.01(a)(i) above shelf not be a felled by any deducift obligation rasped t ouc the insurance coverage retention maintairhect by Tenant Each and every such policy, except for Whxkers to such policy or self insurance insurance: Compensation and Employers Liability Agent and an ) shall be issued in the name of Tenant and ahah name as an additional insured each of Landlord, Y obw Parties in interest from time to time designated in writing bynotioe from Landlord to Tennant Parties in in shat be for the mutual and joint berheft and protector of Landlord and Tenant and any such other (Ili) shag (or a certificate thereof shall) be delivered to each of Landlord and any such oew parties in D:U.eg"rcW"WOP"REiT•ceueslQpolCk CgmCafe(}Wkfiwl).doc 22 EXHIBIT 1 n Inter t at??^e (3) days prior to the expiration of each such policy, and, as often as any such poley shag expire or addlitiongt polities oval be Procured and maintained by Tenant in like mariner and to like extent; (Iv) shop contain a provision that the insurer will give to Landoll and such otter parses in Mterest at leas! thirty (30) days notice in writing in advance of any material change. elation, termination or lapse, or the effective date of any reduction in the amounts of insurance; (v) shag be written as a primary policy which does not contribute to and is not in excess of cWeiage which Landlord may carry; and (vi) shop contain a provision that Landlord and any such offler parties In interest, although named as an addiional insured, shall nevertheless be enWad b recover under said policies for any loss occasioned its b i, servants. agents and employees by reason of the negligence o Tenant. (c) Any insurance provided for in Section 11.01(a) may be maintalned by means of a policy or policies of blanket insurance, covering additional Items or locations or insureds, provided, however, that (I) Landlord and any other parties in interest from Ur a to time designated by Landlord to Tenant shall be named as an additional insured thereunder as its interest may appear, (-) the coverage afforded Landlord and any such other parties in interest will not be reduced or diminished by reason Of the use of such blanket policy of Insurance; (at) any such policy or policies [except any covering the risks referred to in Section 11.01(axi)] shall specify therein (or Tenant shall fumish Landlord with a written statement from the insurers under such policy specifying) the amount of the lotai insurance allocated to the Tenant's knprovernerta and 11.01(aply and property more specifically detailed in Section (1v) the requirements set forth in this Article 11 are otherwise satisfied. (d) Tenant agrees to permit Landlord at all reasonable times to Inspect the policies of insurance of Tenant with respect to the Premises for which polides or copies thereof are not delivered to Landlord. Section 11.02: LANDLORD'S *=RANCE. a) Landlord shall at all times dud% the Term carry and maintain be following types of in3urance in the amounts and in the form hereinafter provided for. (I) Commend General LlablNty Insurance. Commercial general liabghity insurance against darns for property damage and bodily injury or death, such Insurance to afford protection to one limit of not less Ow $5.000,000 in respect to property damage, injury or deem to any number of persons arising out of any one occurrence. (A) Landlord's Real and Personal Property. Insurance covering the Landlordt Building [exclusive of any tenant improvements and betterments and property required to be insured by Tenant pursuant to Section I1.01(aX@)3 in an amount not less than one hundred percent (100%) of fill replecemenf cost (exclusive of the cost of excavatons, foundations and foolings), from time to time during fine Term, providing protection against within the standard state form of special form coverage Insurance Perms Included damage, vandalism and malidous mischief, and such other risks as Lan policy. together with dlord may from time two tune deteagainst sprinkler rmine and with any such deductibles as Landlord may from Ume to time determine. Center if avaiuhb(1 at a cost which Insurance. Rend sole insurance with respect to the premises of the tenants In the Shopping judgment deems reasonab1% against loss of rents in an amount eptkKnat of more then twenty-four (24) times the sum of 0) the monthly requirement of Minimum Rent such Peroen average monthly amount estimated from fire to time by Landlord to be payable by such tenants as Cage Rent and as Additional Rent pursuant to their bases. (b) Any insurance provided for in Section 11.02(a) may be maintained by means of a policy or policies of blanket Insurance, are otherwise s coves addtional gems or locations or insureds provided that the requirements of Section 11.02(a) (c) Tenant shalt have no rights in any policy or policies maintained by Landlord and shell not be ertilled to be named an insured thereunder, by reason of payment, as part of the CAM Sum of its share of Landlord's premiums for the insurance provided for In this Section 11.02 or otherwise. Section 11.03: INDEMNIFICATION BY TENANT. Except lbr rh any kind or for Landlord's negligence or misoo^ducl, Tenant agrees that Landlord to not be liable for any damage or 1 err, for a cause whatsoever lo or death of persons or damage to property of Tartertt or any otter parson during to any smoke (Ind uding wgv A UmgaUon the acts or omissions of Landlord or Agent, by reason of the constriction, use. occupahcy or enjoyment of tie Promises Tenant or any there and holding under Tenant or happening upon or about the Promises and Tenant for the person or purposes of s ? this to 71.03 chap be deemed to be in exclusive control of the Premises during the Term. Tenant floe defend. Indemnify and save hamdess Landlord arid Agent from all claims, actions, demanda costs and e ? ? Ibbilty whatsoever. kftx ilg reasonable ati rneyls fees, on account of any such real or claimed event. damage or liatifty, and from all Fiona, claims and demands arising from (a) any occurrence in, or about the Premises, mWor (b) Tenant's activities in line Common Areas, endlor (c) arising out of the construction, use, occupancy or enjoyment of the Premises, and/or (d) occasioned in whole or in part by any act or omission of Tenant, Its agents, contractors. servants. employees or Invitees. regardless of where occurring. Tenant further agrees ttat line obligation to defend Landlord and Agent continues regardless of allegations of negligence or other fault on the part of Landlord or Agent until such negligence or fault has been established In a final adjudication. Tenant shall not, however, be liable for damage or injury occasioned by the negligence or willful ad of the Landlord which Is the cause of damage or injury unless Tenant is required by this Lease to D:kUgafkBrend"WORDTPMT.L eases?CapfmCiW4junCafeGng(fnal).dx 23 EXHIBIT 1 assume or insure against such damage or injury. Tenants obligations under the aforesaid indemnity shat be 1mhted b amount of commercial general fiabdity Insurrarhce covera which Tenant is req Iicartsees E CW for the negligence or wigul misconduct of Tenor*. or its ed to ?? 90 cantractDM ('Tenant arxifor its Agerksj, Landlord hereby ? 10 directors, °?' a and ,agents. servants, Tenant and/or Its Agents harmless km and against any and at lability, claim demandda eindemnify, defend, ' tees and ((including awsudlhg reasonable ), ataneys fees Arhea. Penalties, sub. proceedings. actions and causes of action , which either (1) arise from or In connection with the possession, use, oxupation, any and every kind or nature or control of lhe *OCWSI Area or any porter therect; (2) arise from, or In cmwWn w( any pllyent act aof Landlord, or Its Comm default. bre&* « violation of is Lease or ,b 8gefft. servants, goeraeea, or contractors ('Landlord and/or Its Agents'; (3) real* from any any provisions of this Lease by Landlord and/or its Agents. Section 11.04: MUTUAL WAIVERS. Landlord and Tenant hereby waive any rights each may have against the other on account of any less or damage ocx asioned to Landlord or Tenant, as the case maybe, their respective property, the Premises. its conlents or to the other PWW= of Landlord's Building arising from any risk covered by special form cow age Insurance. an b the extent of d recovery under valid and collectible policies of such Insurance, rovkled that such we iver does not invalidate dinvalidate such Policies ror prohibit recovery thereunder. The parties hereto each, on behalf of their r property of ether Landlord or Tenant ?p°?° lion that such In ues insuring the against Landlord or Tenant, as the casemay beY such loss. waive any right of subrogation that such Insurers may have Section 11.05: COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS. Subject to Landlords obligations in Section 13.01 to maintain the stricture of the Promises, Tenant agrees at its own expense to comply wfth all Governmental Requirements as woo as the recommendations and requirements, with respect to the Premises, or its use or oaxapency, of the Insurance underwriters or insurance rating bureau or any similar pub or private body and any governments! authority having jurisdiction with respect to the use or occupancy of Landlords Building, Ir cluding, but not united to. katallatlon of fire extinguishers or automatic detection, suppression systems and/or fi a-safety systems, any changes, modifications or alterations in the detection and/or suppression systems or additional detectors and/or sprinkler heads or the location of partitions, trade fixtures, or other contents of the Premises. Landlord shat not malodally change the dimension of the Premises or materially affect access to the Premises from, the Landlord's BuA ft urhless required to make any such changes by reason of any federal, state or focal other law, rule, regulation, guidethe. judgment or order. aonmentrhl or Section 11.06: EFFECT ON LANDLORD'S INSURANCE. Tenant shat not do or suffer to be done, or keep or suffer to be kept, anythirq in. upon or about the Premises which Wit cw tnsvww Landlords policies insurN against loss or damage by lire or other hazards, or which will prevent Landlord from procuring such policies In companies acceptable to Landlord at regular rates or which will In any way cause an Increase In the insurance rates for any portion of the Stopping Center. ff Tenant violates any prohibition provided for in the first sentence of this Section 11.06, landlord may, without notice to Tenant, correct the same at Tenant's expense. T enant shah pay to Landlord as Additional Rent forthwith upon demand the amount of any lweese in the premkims for Insurance the ?? k? any violation of the first sentence of ft Section 11.x, even if Landlord shat have consented to doing eeping of arwilhing on the Premises which caatikited such a violation (but payment of such Additional Rent shall not entitle Tenant to violate the provisions of the first sentence of this Section 11.06). Section 11.07: LIMIT OF LANDLORD'S RESPONSIBILITY. Landlord shat not be responsible or liable to Tenant for any loss or damage that may be occasioned or the acts or omissions of persona occupying space adjolnlng the Premises or by !Morph any Landlord's Budding, or for any bas or damage resulling b the Tenant or Its other pant in the Shopping Caning or water, gas, sew. or steam property from cacao gas, erSuch limdw o other utility lines or for any damage or loss of proper within the Pro rises f any ation of responsibility and liability shag col, however, apply to LandkorTs wilild acts or negggent omissions, except to the extent the same are waived or released by Tenant pursuant to Sections 11.03 or 11.04. ARTICLE 12: DAMAGE OR DESTRUCTION section 12-01: LANDLORD'S DUTY TO RECONSTRUCT, In the event the Landlord's Building is damaged or destroyed by any of the risks referred to in Section I,.02(a)(ii) against which Landlord is obggated to procure insurance, Landlord shed (suf>jea to being able b obtain at necessary Pernik and approvals therefor. incthrdng without Imitation permits and approvals required from any agency or body administering environmental laws. rules or regulatlons), within one hundred twenty (120) days art r such damage or destruction (unless Landlord temrtrudes this Lease pursuant to Section 12.03). commence to: (a) repair or reconvirw Landlord's Buidshg and (b) repair or reconstruct the structural floor slab, demising wait studs (without drywall) and roof (or Noon slab above) as the case may be.of the Promises. Landlord shall proseouta all such work diligently to no event ose 2-h 00 Landlord be liable for Interruption to Tenant`s business or for damage to or repair or reconstruction of any of Gr ororn more for ings which Tenant is required b insure pursuant to Section I1.01(aXro). nor shall Landlord be required b expend any repair or reconstruction pursuant to this Section than the net enxxmt of Insurance proceeds actually received by Landlord and allocable to the Premises on a square toot basis. D:l[ egatlgreadsMIWORDIAREIf-LgxsK apiWCityK aj?mCafel3tWfwag.doc 24 EXHIBIT 1 Section 12.02: TENANT'S DUTY TO RECONSTRUCT. other cisany, item which Tenant is required to taus pursuant to Section 11.01(axtii) is damaged or destroyed by fire or Imitation uudlyr, Tenant shell (subject to being able to obtain al necessary penmds and approvals therefor, Includin without h aon i Viand approvals required from any agency or body administering enviroru> laws. rules and Ilm n*. wit 440ow4W Build ' and the ? (30) ? after Landlord has substantially repaired or reconstructed Landlord's °? pylon of the Premises Landlord Is obligated to repair or reconstruct ursuant Landlord terminates this Lease pursuant to Section 12.03), commence to re t' to Section 12.01 (unless items to at least substantially the same condition in which were uc or reconstruct such damaged or destroyed same diligently to completion. Y P to such damage or destruction and prosecute the Section 12.03: LANDLORD'S RIGHT TO TERMINATE. where noted. Tenant notice t (a ??eaan00 loord d the exercise thereof within Weave have to terminate this Lease upon giving written damaged or destroyed if twenty (120) days after the Landlord's Building is () the Premises are rendered wholly unfit for carrying on the Tenant's business after damage to or destruction thereof from any cause: or (d) Landlord's Building Is damaged or destroyed as a result of any flood, earthquake, act of war, nuclear reaction, nuclear radiation or radwactive contamination, or from any other risk not covered by insurance which Landlord is obligated to procure pursuant to Section 11.02(a)(a); or (IN) any damns to or destructim of Term or in any partial Year at the and of the Tenn; Landord'a budding occurs within the last three (3) Years of the (v) My percent (50%) or more of the GLA in the Landlords Bulk&V immediately prior to the damage or destruction is rendered unfit for carrying on business therein: or (v) Landlord's Building Is so substantially damaged that It is reasonably necessary, In Landlord's judgment, to demolish the same for the purpose of reconahuction. (b) Wess so terminated, this Lease steal continue in full force and effect, and Landlord and Tenant shall p erform their respective obligations under Section 12.01 and 12.02. Upon any termination of this Lem under any of the PrOvislons of Section 12M. the Rent shall be adjursted as of the data of such termination and file parties shall be hereundei released born i all Illabilky surrender which have been theretofore accrued area then repaid possession of the Premises to alts Landlord. except for items (c) Tenant may terminate this Lease in the event Landlord fads to commence resbration of the Premises within seventy-floe (75) days after the date of damage or destruction or in the event the damage or destruction to the Premises occurs within the last three (3) Years of the Tenn. In the event Tenant elects to exorcise Its right of termination. it must do so within ten (10) days after the expiration of the time period set forth in des prior sentence or. In the case of a casualty occurring during the last three (3) years of the Tenn, within ten (10) days after the date of such casualty. Section 12.01: ABATEMENT OF RENT. If this Lease Is not terminated by Landlord pursuant to Section 12.03 after damage or destruction of the Landlord'* Budding, and N the Premises are rendered whotiy or partially unfit for cerrykV on Tenants business by such damage or destruction, then this Mlninhtrm Rent and the Additional Rent payable by Tenant under this Lease shall be abated, and the applicable Break Point and Partial Year Break Point (as the case may be) shall be reduced In direct proportion to the percentage of the GLLA in the Premises which Is rendered unfit for that period from tee date the Premises are to rendered unfit ura the carder of a[* (60) days agar Landlord re-delivem possession of the Premises to Tenant or the date Tenant reopens for business. ARTICLE 13: MAINTENANCE OF PREMISES Section 13.01: LANDLORD'S DUTY TO MAINTAIN STRUCTURE. Landlord will keep the roof, exterior face or service corridor wags. structural cclurr" and structural door or floors which enclose tie Premises (excluding floor coverings, such as carpeting, terrazzo and other installed at the request of Tenant, doors. windows and glass) M good repair. NoMdlhatarid ft on foroQoing W onsof this Section 13.01. Laedibrd shall not In anyway be liable to Tennant unless Tenant shell have ? Mond written naiod of the necessity for such repairs and Landlord fails to commence m thereafter, and, 60 Ohs such repairs within a reasonable period PFOVISWR shall not have been caused by the omiss644490994444-above. provided ion, negligsnc?e or wilM a of Tenen it?d?ge neC?ltethg such repairs employees. Icensess or coMradors or by the faltme of Tenant to any of t ? corheesa under ft Lease t s, officers, either of which events Tenant anal be responsible therefor) or have been to n of o to (in pursuant to Article 11. Landlord shall be under no liebtilty for repair, maintenance, ?a InTenant mehisn required t insure renewal or any other action with respect b the Premises or any part Thereof, or any pkimbing, electrical. twat eaft ventilating, air conditioning, or other medianical Installation therein, ehmept as may be expressly set fbdh In this Lease. ' In the event Landlord defaults in the performance of any of its obligations under Section 13.01 and Tenant shad have given Landlord written notice specifying such default, if Landlord shall fail to cure such default wilhin D:11.egaNircndoKwORD\PREffd easeslCspiWCityhCajonCifoGnUtfnW).doc ftc EXHIBIT 1 thirty (30) days of the date of such notice (or if the default so specified shag be of such a nature that the same cannot be reasonably cured or remedied within said thirty (30) day period, if Landlord shall not in good tath have commenced the curing or remedying of such default within such thirty (30) day period and shall not thereafter proceed therewith to completion), if such defeats materially and adversely affects Tenant's use of the Premises Tenant may take the minimal necessary lawful steps to are such default on behalf of Landlord in a way which does nol affelht any other tenant and Landlord shall reimburse Tenant for any reasonable sums paid or cost h=ired in curing such default provided supporting invoices are submitted to Landlord. Section 13.02: TENANTS DUTY TO MAINTAIN PREMISES. Tenant will at all times, from and after delivery of possession of the Premises to Tenant, at Its own cost and expense, maintain and make all needed repairs. and do alt other work to or for the Premises and every part thereof to render the same in good and tenantable Condition. Tenants obligation under this Section 13.02 shat include, but not be spieling, replacing and otttemvlae maintaining items as are aired limited to, r required by any governmental agency having )unction thereof (whether the same is ordiirary or extraordinary. foreseen or tnforeseen? walls (other than the exterior face of service corridor walisl callings, plate glass. utility meters. pipes and conduits outside the Premises which are installed by or demised to Tenant or which exclusively serve the Premises, all fodures, heeling. ventilating and air conditioning equipment Installed by or demised to or used solely by Tenant, if any (whether such healing ventilating and air condtioning equipment is located inside the Premises, between the calling and the roof or on the roof of Landlord's Building). sprinkler equipment and other equipment within the Premises, the storefront or storefronts, all of Tenants sign. security grilles or similar enclosures, locks and doskg devices, and all window sash, casement or frames, doors and ? frames: provided that Tenant shell make no adjustment, alteration or repair of arty part of any sprinkler, We safety or other detection or suppression system In or serving the Premises without Landlords prior approval. Tenant shah permit no waste, damage or InJury to the Premises and Tenant shag Initiate and carry out a program of regular repair and other maintenance of the Premises, including the painting or refinishing of of areas of Be hInterior and the storefront as approved by Landlord, so as to impede, to the extent possible. deterioration by ordinary wear and tear and to keep the sane In attractive condition. Tenant will not overload the electrical wiring or other systems serving the Premises or within the Premises, and wit install at its expense. but only after obtaining Landlord's written approval, any addtlonai electrical wiring or other items which may be required In connection with Tenants apparatus. Section 13.03: RIGHT TO ACCESS TO THE PREMISES. Landlord and Its stSwIaed representative may enter the Premises at any and all tines upon three (3) days' prior notice (except for emergencies) during usual business hours for the purpose of inspecting the same (end at all other times in the case of emergency). Tenant further agrees that Landlord may tram time to Wine upon proper notice go upon the Premises and make any additions, alterations, repairs or repiataments and do odor work to the Promises or to any utilities, systems or equipment located in, above or under the Premises which Landlord may deem necessary or desirable to comply with of governmental requirements and/or recommendations of an insurance rating bureau or of any similar public or private body or that LuKKord may deem necessary or desirable to prevent waste or deterioration in connection with the Premises If the Tanant does not make or cause such addf5ons, alterations, repairs or other work to be made or performed promptly after receipt of whiten demand from Landlord. Nothing herein contained shall imply any duty on the part of Landlord to do any such work which under any provision of this Lease that Tenant may be required to do, nor shag t constitute a waiver of To natirs defa it in falling to do the same. In the event Landlord performs or causes any such work to be performed, Tenant shall pay the cost thereof to Landlord as Additional Rent upon demand therefor. In addition, Landlord may Install, use, repair or replace any and all materials. tools and equipment, and pipes, ducts. conduits, columns, foundations. footings wires and other mechanical equipment serving other portions tarants and occupants of Landlord's Building in, through, under or above the Premises that Landlord deems desirable therefor, without the same constiluling an actual or consbuctive eviction of Tenant. Landlord's work in connection with tine Installment of such equipment shall not unreasonably Interfere with the operation of Tenants business. Landlord may also enter the Premises at all times during usual business hours for the purpose of showing the Premises to prospective purdusers, mortgagees and during the last six (6) months of the tam. potential tenants. No exercise by Landlord of any rights provided In Section 13.01 or 13.03 shelf entitle Tenant to any damage for any inconvertenee, disturbance, loss of business or other damage to Tenant occasioned thereby nor to any abatement of Rent. Ssation 13.04: CONFLICTS. To the extent, if any, that two may be any conflict between this Article 13 and Article 12, or between this Article 13 and Article 22, Article 12, if applicable, or Article 22. If applicable, shag prevag. ARTICLE 14: FIXTURES AND PERSONAL PROPERTY Section 14.01: TENANTS PROPERTY: REMOVAL. Any trade fixtures, signs, counters, shelving, inventory. showcases, mirrors, and other personal properly of Tenant not permanently affixed to the Promises shall remain the property of Tent. Tenant shall have the right. provided Tenant is not in default under this Lease. at any time and from time to time during the Tenn, to remove any and all of its personal property whim it may have stored or installed In the Premises. If Tenant Is in default under this Lease. LwxW shell heve shag have the benefd of any lien or Tenant's property as may be aemin-permitted under the laws of the state in which Landlord's Building is located and. D:\LegstlB-deMlwORD1PREIfd.easetC.pinlCit .LiunCde().Ikfiaal).doc 26 EXHIBIT 1 6064 lien Is asserted by Landlord in any maRno% includ*nS but net r-.,d 1. or Permitted by law, Tertartt Shah not remove or permit the removal of said trade fixtures, signs or other personal property urns such pesasssioa is w1nsu1c4e0-%" lien is removed. , asa4?sase maybe. Nothing in this Article shall be deemed or constued to permit or allow Tenant to remove any of such personal property prior to the end of the Term without the immediate replacement thereof with similar personal property of comparable or better quality, or otherwise render the Promises unsuitable for the continued conduct of Tenant's pemhtted use thereof. Tenant at its expense strap hunedalely repair and otherwise make good any damage occasioned to the Premises or Shopping Center by reason of installation or removal of any such personal property unless such damage is caused by Landlord pursuant to Section 13.03 and if Tenant fails to remove such Rams from the Premises prior to such expiration or termination, or I this Lease is terminated by Landlord and Tenant fats to remove such items from the Premises prior to the effective date of such termination, than in any such event all such personal property shat thereupon become the property of Landlord, without further act by either party hereto, unless Landlord elects to require all or a portion of such items to be removed by Tenant in which case Tenant shat promptly remove the hems designated by Landlord and restore the Premises to its prior condition at Tenants expense. Section 14.02: IMPROVEMENTS TO PREMISES. AN improvements made to the Premises by Tenant, including, but not limited to, the items furnished pursuant to Tenant's Work, alterations, changes and additions by Tenant, light fodurse, floor coverings and partitions, heating, ventilating and air-condhionkV equipment, Mechanical and plumbing equipment, but excluding trade bum and signs and other personal properly specified In Section 14.01. shat become the property of Lwm&xd upon expiration or earlier termination at this Lease; provided, however, that Landlord may designete by written notice to Tenant, prior to Tenant's making such alterations, those alterations. changes, and additions made in the Promises after the Rent Commencement Dale which shall be removed by Tenant at the expiration or termination of this Lease, In which went Tenant shalt at Tenant's sole cost and expense promptly remove the same and repair and otherwise make good the damage to the Premises caused by such removal or by the InstaNation of such alterations, changes or addhiorns. ARTICLE IS: ASSIGNMENT AND SUBLETTING Section 15.01: PROHIBITED. Except as provided otherwise hereunder, Tenant shall not permit anyone other than Tenant to occupy the Promises or any part thereof and shall not transfer, assign, sublet, enter into license or concession or other occupancy or use agreements or mortgage or hypothecate this Lease or ths Tenants interest In and to the Lease or the promises or any part thereof (herein 0018ceveiy referred to as 'Transfer) without first obtaining in eech and avety hstance the prior written cot>sent of L.andord which Landlord shall not unreasonably withhold or delay, unless provided otherwise herein, n"VjMi4hel44s4ls solo-doeFetiem. any attempted Transfer without such prior written consent shall be an Event of DefetA shat not be binding upon Landlord, shall confer no rights upon any third person and shall not regeve Tenant of is obligation under this Lease. Any transfer by merger, consolidation, liquidation or otherwise by operation of law, including, but not limited to, an assignment for the benefit of creditors, as wet as any transfer. assignment, or hypothecation of any slack or general partnership Interest in Tenant so as to result In a charge of the control thereof, shag be included in the term "Transfer' for the purposes of this Lease and shag be a violation of this Section 16.01 and an Evert of Default, except as otherwise specifically set forth in this Article 15. Notwithstanding the foregoing, nothing set forth herein shah prohibit (1) a public offering of stook of Tenant pursuant to the Securities Act of 1933 andfor Securities Exchange Act of 1834, as amended; or (11) the transfer of stock between current shareholders of Tenant, Teratat's employees or Its afflllates, or (IQ the sale of additional shares of stock to Individuals currently not stook holders of Tenant, provided that there Is no change In control of Tenant, or (iv) the transfer of Tenant's stock to shareholders' family members by get, trust or estate plan. or (v) transfer of stock upon the death of any shareholder: Consent by Landlord to any Transfer shag not constitute a waiver of the necessity for such consent to any subsequent Transfer. In the event of a permitted Transfer, Tenant agrees nevertheless to and shall remain fully gable for the U performance of each and every obligation under this Lease to be performed by Tenant and the assignee shall be deemed to taus assumed, and agreed to be bound by all of the terns of this I.ease. In the event a( any proposed Transfer, Tenant shall deliver to Landlord wrhkrt notice (the 'Request Notice") requesting Landlord's consent to be proposed Transfer at least lhdy (30) days prior to the date on which, with Landlords prior w #W consent, the Transfer would be effective. The Request Notice shall contain, without limitation, at least: Q) the fug Identification of the proposed transferee; (11) the most recent financial statements and other evidence of the transferee's financial rsgwWbity and business performance; (gin the transferee's proposed specific use and business proposed to be conducted at the Premises: (iv) the scope of any proposed alterations to the storefront of and within the Premises: and (v) the monetary and non-monetary terms and conditions of to proposed Transfer. Landlord shall have the right and option (the 'Take-back Option'). exercisable by Landlord Oft Tenant wriffen notice within thirty (30) days after Landlord's receipt of the Request Notice of reacquiring the Promises or portion thereof which Is the sutyect of the proposed Transfer and terminating this Lease with respect thereto. If Landlord elects not to exercise the Takebacit Option and elects to give Landlord's written oonsent to the proposed Transfer, than Tenant shall pay to Landlord forthwith upon Tenants receipt, as Additional Rent, of sums and other economic consideration (whether by imp sum payment or otherwise) received by Tenant in any month as a result of the Transfer whether denominated rent* or otherwise which exceed, in the aggregate, the total sums which Tenant Is obligated to pay and does pay Larxilic under this Lease in the same month (prorated to reflect obligations slocabie to that portion 4( the Promises which is the subject of the Transfer), all without affecting or reducing any otter obligation of Tenant hereunder provided, that h the case of an assignment of this Lease such Addiliorhal Rent payment by Tenant b Landlord shat equal the entire consideration for such assignment. Notwithatanding the foregoing, the following shall not be deemed to be "rent" nor shall Landlord have any Interest or claim In any of the following payments to Tenant, regardless of whether such payments are made In one lump sum or periodically: any psynm tt for Tenant's Inventory, personalty, fixtures, the unamoriized value of the Isasehold Improvements Installed and paid for by Tenant, bona D:\L.cgaMrec&MIWORDWREIT.I.easplCapinlCkylCajuaCakGrill(fiul).doe 27 EXHIBIT 1 n fide franchise fees paid pursuant to a bona fide franchise agreement, any refits paid for the rental of TenarWit fixtures, personal property and equipmenk and for Tenant's good wig M the safe of the business in the pm is.-. H Landlord Ulm Landlord's written consent to the proposed Transfer and the Transfer Is not made (including WMXM limitation, delivery of possession by Tenant to and occupancy by the proposed transferee a thirty (30) days after the date Landlord gives its written consent to the proposed nL°Med by Landlord) min and the Transfer shall be automatically null, void and of no force or effed whatsoeevver. TheTake-back ?? ant Option shall not be exhausted by arty one exercise thereof by Landlord but shell be exerdaable from time to the and as often as two to e proposed Transfer. The Take4ack Option may be exercised by any assignee of Landlord's right, We and interest In Oft Lease or any other person which at the time of the Request Notice Is Landlord under this Lease. If after reo*t of the Request Notice Landlord requests additional or further Information which Landlord reasonably requires to consider the proposed Transfer. Tenant shall deliver such information to Landlord upon Landord'a request therefor and the period for Landlord to exercise the Takebadt Option shall be extended by the amber of days between Landlord's request for and Landlord's receipt of such additional or further Information. Tenant shalt pay to Landlord the sum of Five Hundred ($500.00) Dollars to defray Landlord's administrative costs, overhead and counsel fees in connection with the consideration, review and dooument preparation of any proposed assignment or subletting requidall Landlord's prior consent, such am to be paid at the time Tenant delhmm the assigntreeM and assumption agreement executed by the assignee and assignor. Without Landlord's prior approval, Tenant may sublease the Premises to Tenant's authorized franchisee provided and so long as the following conditions ere satisfied: 1. The execution of the franchise agreements and sublease (collectively agreements) shall not after or diminish Tenants direct obligation for performance of its obligations hereunder and Tenant shelf not be released therefrom in any respect: and 2. All the rights of such sublease shall be subject to all obligations imposed upon Tenant by this Lease and such sublessee shall affirmatively covenant in the agreements to perform all such obligations for the direct benefit of Landlord as a thlyd party benefldary thereof; and 3. The agrownents shall be consistent with the terms hereof and shall not grant to the sublessee any rights not afforded to Tenant by this Lease. and in the event of a conflict between the terms, covenants and conditions contained In Ibis tease and those contained in the agreements, %e terms of this Lease shall prevail; and 4. If in Larx lord's reasonable opinion the subleases operating the Premises is doing so in a manner not consistent with the quality of other stores in the Shopping Center. ndihtn-iwenl 4kty (80) days alter Landlord's request, Tenant shall have the ability to and will cancel the agreements and eittw Immediately recommence business In the Premises as a company operation or will obtain another sublessee In accordance herewith; and 5. In no event will Landlord be obligated to (a) give any notice to or join such sublessee In any proceedrg Landlord institutes against Tenant In the event Tenant defaults under this Lease, and (b) the agreements will by their own terms automatically terminate upon the expiration or sooner termination of this Lease. ARTICLE 16: DEFAULTS BY TENANT Section 16A1: EVENTS OF DEFAULT. This lease is made upon the condition that Tenant shall punctually and faithfully perforn and fulfill all of the covenants, conditions and agreements by It to be performed as in this Lease set forth. In addition to events elsewhere stated In this two as Events of Default, the following shall be deemed to be an Event of Default (each of which is sometimes refensd to as an 'Event of Default" in this Lease): (a) the faWre by the Tenant to pay Minhasn Real and/or percentage Rent and/or Additional Rent or any instalment or year-end adjustment thereof If such tsiure continues for ten (10) days after written notice thereof by Landlord to Tenant; or (b) the failure of Tenant to submit its Design DmwkW on or before the Design Drawings Submission Date in accordance with Section 2.03(c) or commence Tenant'e Work on or before the Conslnrction Commencement Date in accordanoe with the terms and conditions of Section 2.03(c); or (c) the failure of Tenent to open its business b the public In the Premises on or prior to the date on which Tenant Is required to open its business to the public pursuant to the tarts and condftbrs of Section 2.04, or the failure to open the Premises. or to keep the Premises open. on the days and hours required by this Lease, or It Tenant vacates or abandons fine Premises; or (d) the failure of Tenant to observe or perform any of the covenants, terms or conditions set forth in Article 15 (ralati g to assignment and subledingr or I D:V.98 BreadaKWORDTRETT-Lusa?Captu)C %Caju ncafeGrill(lind)dx Zg EXHIBIT 1 (e) the sale or removal of a substantial portion of Tenant's property located in the Premises in a roamer which is outside the ordinary course of Tenant's business unless Tenant immediately replaces same with similar or better quality property; or (f) the failure to maintain inventory levels and employee staff in accordance with the provisions of Article 7 hereof, or (g) repetition or continuation of any failure to timely pay any Minimum Rent and/or Percentage Rent and/or Additional Rent or other sums reserved hereunder or to timely report Gross Sales as provided in Section 4.08 hereof where such failure shat continue or be repealed for two (2) consecutive months, or for a total of three (3) months in any period of twelve consecutive months; or (h) repetition of any faikxe to observe or perform any-the same or substantially similar duty requited under the Lease covenants. terms or conditions more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months; or (i) any other failure of Tenant to observe or perform any of the other covenants, terns or conditions set forth in this Lease where said failure continues for a period of twenty (20) days alter writen notice thereof from Landlord to Tenant (unless such W" WrOt reasonably be cured within twenty (20) days and Tenant shag have commenced to pre said failure within twenty (20) days and continues diligently to pursue the caring of the same until oompletedy or 0) the commencement of levy, execution, or attachment proceedings against Tenant or Guarantor (hereafter defined) or a substantial portion of Tenants or Guarantors assets; the commencement of levy, exec tition, attachment or other process of law upon, on or against the estate created in Tenant hereby; the application for or the appointment of a liquidator, receiver, custodian. sequestrator, conservator, trustee, or other similar judicial officer for Tenant or Guarantor or for all or any substantial part of the property of Tenant or Guarantor (and such appointment continues for a period of" nknaty silty (BOX09) daysk the Insolvency of Tenant or Guarantor of Tenant in bankruptcy or equity sense; any assignment by Tenant or Guarantor for the benefit of creditors, or (k) the commencement of a case by or against Tenant or Guarantor, under any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state or federal; or the determination by the Tenant or Guarantor to request relief under any insolvency proceeding. including any Insolvency, bankruptcy, creditor adjustment of debtor rehabilitation laws, state or federal, and In no everts 00 the Premises or Tenant's interest in this Lease become an asset in any such proceedings; or (1) notwithstanding the Tenant's obligation to pay Minimum Rent and/or Percentage Rent and/or Additional Rent as of the fast day of each month during the Tenn, in the event that an insolvency, bankruptcy or simgar proceeding is filed by or against the Tenant or any Guarenlor, the Tenant shall be obligated to pay all such Minimum Rent and/or Percentege Rent and/or Additional Rent on a ratable basis from the data of the oornmencemant of any such proceeding through the end of the month in which such proceeding is commenced. Section 16.02: LANDLORD'S REMEDIES. (a) landlord may treat any Event of Default as a material breach of this Lease. Landlord's failure to insist upon strict performance of any covenant, term or cor dilion of this Lease or to exercise any right or remedy it has herein shag not be deemed a waiver or relinquishment for the future of such performance, right or remedy. In addition to any and all other rights or remedies of Landlord in this lease or at law or in equity provided, Landlord shall have the following rights and remedies if (hero shalt ohcdr any Event of Default none of whkh shag be construed as an election to forego any of the other remedies then or in the future: (1) accelerate the whole balance of Rent, and ail othe sums payable hereunder by Tenant, for the entire balance of the Term, or any part of such Rent and other skins; and/or (1) to terminate this Lease. and to ro-enter the Premises and lake possession thereof and to remove ail persons and contents therefrom, and Tenant shall have no further daim or right hereunder; and/or (a?) to bring suit for the collection of Rent and for damages without ordering into possession of the Premises or terminating this Lome; and/or (W) to terminate Tenant's right of possession of the Premises by summary proceedings or otherwise, without terminating this Lease. In the event of any re-entry and termination of possession, Landlord shall have the right but not the obligation to remove any personal property from the Premises and either treat such property as abandoned, or at Landlord's option, place the same in storage at a pubic warehouse at the sole cost, expense and risk of the Tenan% and/or (v) to enter the Ptemnlses and without further demand or notice proceed to distress and sale of the goods, chattels, personal property and other contents there found and to levy the Rent, and Tenant shah pay all costs and officers' commissions, including watchmen's wags and sums charge" by Landlord. and further Including chergea which Landlord may impose by statute as commisalone to the constable or other person making the levy, and in such cases all costa. officers' commissions and other charges shall immediately attach and become part of the claim of Landlord for Rent, and any tender of Rant wkMut said costs, commissions and charges made, after the issuance of a wa and of distress, shag not be sufficient to setisly the claim of landlord. EXHIBIT 1 D.V-ega?SteobMIWORD1pgI+1'fit-wo CepiedC'ityWAj-CafeCHWrmd)-dx 29 W (ifnfffflail ff JHdarlfal ?fff?? T°'G "' GOVAPAWS that If O MM r IS OR D41106.1111 BF Ohio 'eGge 16 411AMIA811-A OF the TOM OF MY SAWAISIGRO OF FSAWAIWO Aherea is ISMIPA10111 OF " TOM OF 8 (e) Tenant expressly waives: C) The benefit of all laws, now or hereinafter in force, exempting any goods In the Premises or elsewhere from distraint, levy or sale in any legal proceedings taken by Landlord to enforce any rights under this Lease. (i) The benefit of all laws now made or which may hereafter be made regarolrg any Iftetion as to the goods upon which. or the time within which, distress is to be made after the removal of goods, and Tenant further relleves Landlord of the obligation of proving or identifying such goods; it being the purpose and intent of this provision that all goods of Tenant whether upon the Premises or riot, shall be liable to distress for rent. (S) (iv) The right to delay execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this Lease and any right to have the same appraised. -"Me 0114191011901% OF OaF pFacess; upon Unosift valwvlwy wakw eAd WhOF agFeer, Otal; said NW estate WAY be sellil on a WO (v) All rights under Act of Aprll 5, 1957, No 20 and all supplements and amendments thereto, hereby authorizing the sale of any goods distralned for rent at any time after seven (7) days from said distraint without any appralsernent and condernretlon lhereof. (vi) The tight to three (3) months and/or fifteen (15) or thirty (30) days' notice required under certain circumstances, or any other notice required or otherwise provided by statute as a condition to the commencement of summary proceedings or an action for possession or to the termination of this Lease or any retaking of possession. Tenant hereby agreeing that Me respective notice periods provided for in this Lease shall be sufficient in any such case. Section 16.03: DAMAGES. (a) If Landlord elects to terminate Tenart i; right to possession under this Lease, but not to terminate this lease, Landlord may shalt use commercially reasonable efforts to relet the Premises (or any part twwQ for the account of Tenant at such rentals and upon such terms and conditions as Landlord shall deem appropriate (which may be loss then or exceed the balance of the Tenn), and to the extent Landlord receives the gent therefor, Landlord shall apply the same first to In payment of such expenses as Landlord may have incurred in recovering possession of the Premises (including, without Ilmitetbn, reasonable and necessary legal expenses and attorneys' fees) and for MAft the Premises into good order and condition and repairing or remodeling or altering the same for reletft and any other expenses, commissions and charges paid, assumed or incurred by or on behalf of Landlord in connection with the retailing of the Premises (collectively the 'Costs of Rslstling'), and then to the fulfillment of the covenants of Tenant under this Lease. Tenant shelf pay to Landlord the ReM up to the time of such termination of Tenants right to possession under this Lease, D:1LegaMxadaM\WORDIPREIT-Leases\Capitdaty4GjurC4feGrofmal).doc 30 EXHIBIT 1 and thereafter. Tenant covenants to pay landlord until the end of the Term of this Lease the egWvalettt of the tr runt of Rent under this Lease less the net eveis of such resetting, if any, during the same period, and the same shall be due and payable by Tenant to Landlord on the dates such Rent Is due under this Lease. My relettng by landlord shall not be construed as an election on the part of the Landlord to terminate this Lease unless a notice of such intention is gtven by landlord to Tenant. Notwithstanding any rebtting without termination of this Lease, Landlord may at any time thereafter elect to terminate this lease. In any even(. Landlord shall not be Rabb for, nor shall Tenants obligations hereunder be diminished by reason of any failure by Landlord to rolet the Premises or any failure by Landlord to collect any sums due upon such Matting. Tenant shall not be entitled to any Rent received by Landlord it excess of Rant provided for in this Lease. Landlord may file suit to recover any sums falling due under the terms of this subsection from Ume to time, and no suit or recovery of any portion due Landlord hereunder shag be a defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. Notwithstanding anything set forth in Section 16.03(a) to the contrary, Landlord shag be obligated to make a good faith effort to retet the Premises at a Minimum Rent, Additional Rent, and other charges consistent with the proveing economic Condition to a tenant which Is acceptable to landlord based upon the following aaeria: (a) Mho proposed tenant shag have a not worth equal to or greater than the net worn of Tenant on the date hereof, (b) the proposed tenant wilt be obligated to use the Premises for either the same use as Tenant or otter use which in Landlords reasonable judgment is in accordance with a proper mix of uses for the Shopping Center and (c) the proposed tenant shag agree to enter Into a tease agreement with Landlord which contains terms, covenants and conditions at least as favorable to Landlord as those set forth in this Lease. However, Landlord shat not be required to lease the Remises in preference to any other then vacant space in the Shopping Center. (b) If Landlord electe to terminate this Lease instead of terminating only Tenant's right to possession, Landlord shag haws the right to Immediately recover against Tenant as damages for loss of the bargain, and not as a penalty, the excess (if any). as determined by Landlord, of 0) the present value of the projected Rent payable by Tenant under this Lease (as determined by Landlord on the basis of the amounts of Additional Rent which would have been payable pursuant to this Lease for the fug calendar year prior to the calendar year in which the default occurred, increasing annually on the first of each year after such calendar year at the rate of six percent (6%) per antrum compounded) Mhet would have accrued for the balance of the Term plus any other amount necessary to compensate Landlord for all detriments proximately caused by Tenanfs failure to perform its obligations under this Lease, Including reasonable attorneys fast and interval on all sums due Landlord at the Default Rate (hereafter defined last (i) the shah present fair market rental value of the Promises for the balance of the Term as reasonably determined by Landlord. taking into account among other things, the condition of the Remises, market conditions and the period of Mme the Premises may remain vacant before Landlord is able to reset the same to a suitable replacement tenant, and the Casts of Rebating (as defined above) that Landlord may incur in order to enter into a replacement lease r"Benefit of the Bargain Damageeq. Notwithstanding anything to the contrary contained In this Lease, if, subsequent to the termination of this Lease and time recovery of damages from Tenant pursuant to this subsection (b), Landlord relets the Premises for an effective Rent higher or lower then into Rent assumed for purposes of calculating the Benefit of the Bargain Damages, the Benefit of the Bargain Damages shag not be recalculated and Landlord shag be entitled to retain all of the proceeds of such reletting. (c) The "Default Rste" means the rate of Interest which Is three percent (3%) over the arhrtounced prime rate of PNC Bank, Philadelphia, Pennsylvania or any successor thereto or other bank selected by Landlord. Section M04: LANDLORD'S SELF-HELP. In addition to Landlord's rights to salFfielp set forth elsewhere In this Lem, It Tenant at any time fait to perform any of Its obligations under this Leese as required under this Lease, Landlord shag have the right, but not the obligation, upon giving Tenant at least three (3) days prix written notice of Its election to do so (in the event of any emergency no prior notice shag be required) to perform such obligations on behalf of and for the accent of Tenant and to take all such action to perform such obligations. In such event, Landlord's costs and expenses incurred therein shat be paid for by Tenant as Additional Rent, forthwhtn, upon demand Msrefor, with interest thereon from do date landlord performs such work at the Default Rate. The perfornance by Landlord of any such obligation shag not constitute a release or waiver of Tenant therehom. Section 16.05: LEGAL EXPENSES. in the event that Landlord should retain counsel and/or Institute any suit against Tenant for violation of or to enforce any of the owenants or conditions of this Lease, or should Tenant institute any action against Landlord for violation of any covenants or conditions of this tease. or should ether party Institute a auk against the other for a declaration of rights hereunder, or should either party ntervene in any suit In which the other is a party, to enforce or protect its interests or rights hereunder, the prevailing party in any such suit shall be entitled to all As costs, expenses and reasonable tees to Its attomey(s) in connection ttherewkh. ARTICLE 17: LIABILITY OF LANDLORD Section 17.01: LANDLORD'S DEFAULT. Except as otherwise provided in this Lease. Landlord shag be in default under this Lease F Landlord fait to perform any of Us obligations hereunder and said figure continues for a period of thirty (30) days after written notice thereof from Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and Landlord shag D:V.egariBra d&WWORMRUr-Lcama chi uWiWCajuaCafeGrill(Smq.doc EXHIBIT 1 have commenced b taro said failure within saki thirty (30) days and continues diligently to pursue tie nixing of the same). If landlord shag be in default under this Lease and, W. as a consequence of such default. Tenant ahal recover a money turd against Laridlord, such judgment shell be satfs8ed only out of the proceeds of sale received u Pon execution of such hidgMent and IWW thereon sgainat the dghk the and interest of Landlord n the than be encumbered and Lartdtord shat not be gable for any deficiency. in no event shall Tenant have the right to levy exe iution spinet any property of Landlord other than Landlord's right, title and interest in the Shopping Center as e>preeslY provided. No default by Landlord under this Lease shall give Tenant the right to terminate this Lease. Section 17.02: TRANSFER OF LANDLORD'S M(TEREST. In the event of the sale or other transfer of Landlord's right f, We and interest in the Premises or the Shopping ( ?ease of?a saleaeor tr ?asebaansfetlndc areengngany pTrsactrhoion >n whkSecuuh landlo is the lessee) landlord shay Landlord uxtianority Deposkrdhvhich may then ba held by pursuant to Section 202 of this Lease, and Landlord thereupon and IMUWd further act by either party hereto shay be released from OR MARY and obligations hereunder derived from this Lease eni tit out of any act. occurrence or omission rotating to the Promises or tints Lease occurring after the consummation of such sate or transfer. Tenant shay have no right to terminate this Lease nor to abate Rent nor to deduct from nor set-off nor counterclaim against Rent because of any sate or transfer (Including without limitation any UWaassback) by Landlord or tie grantees. successors or assigns. Neither Landlord's mortgagee (or lib designee) nor the purchaser at a foreclosure sale shay be gable to Tenant for the return of Tenanrs Security Deposit unless and until Landlord actually delivers the Security Deposit to such mortgages or purchaser or their designee. ARTICLE 18: SUBORDINATION AND ATTORNMENT Section 18.01: SUBORDMTfON OF LEASE Tenant agrees that except as hereinafter provided, ft Lease is, and shag always be. subject and subordinate to any lease wherein Landlord Is the lessee and to the Ben of any or all mortgages or deeds of trust. negardlass of whether such lease, mortgages or deeds of trust now exist or may hereafter be created with regard to all or any part of the Shopping Center. and to arty and of advances to be made thereunder, and to to interest thereon. and all modifications, consolidations. renewals, rePlacernents and emwft rn detect Such subordination shay be effective wtthtout the execution of any hither Instrument Tenant also agrees that any lesser, mortgagee or trustee may elect to have this Lease prior to any lease or Ben of its mortgage or deed of trust and in the event of such election and upon notification by such lessor, mortgagee or trustee to Tenant to that effect this Lease shall be deemed prior in lien to the said lease, "age or deed of truK whether this Lease is dated prior to or subsequent to the date of said Iase, mortnaos or deed Section 18.02: TENAMT'S ATTORNMENT. In the event of any faredasure of, or the exercise of a power of sale under, any mortgage or deed of trust referred to in Section 18.01 covering the Premises or in the event of the termination of any lease related to it Section 18.01 wherein Landlord Is the lessee, Tenant, upon the purchaser or lessor's request, shail attom to and recognize the purchaser or Landlord's lessor as Landlord under this Lease. Section 18.03: INISTRUMEMTS TO CARRY OUT INTENT. Tenant agrees that, upon the request of Landlord, or any such lessor, mortgagee or trustee, Tenant shall execute and deliver whatever inetnsnents may be required for such purposes and to carry out the intent of this Article 18, and in the event Tenant falls to do so within Now twenty (20) days after demand in writing, Tenant shall be deemed to have committed an Evert of Default subject to the Notice provisions of Article 18. Any document executed by Tansrt evidencing such autwrdlnstion shall provide that Landlord's mortgagee or such purchaser shag not be table for any action or omission of any prior landlord (Mcluding Landlord) under the Leese, subject to any off sets, claims or defenses which Tenant might have against prior landlord (including Landlord), bound by any Rent which Tenard might have paid for more than the current month to any prior landlord (including Lsrx lords bound by any amendment or modification of the Lease or any otter agreement concerning the tease made without mortgagee's written conserd or responsible in any way for any security deposit which was delivered to Landlord but was not subsequently delivered to such mortgagee or purchaser. ARTICLE 19: ESTOPPEL CERTIFICATES Section 14.01: TENANTS A(3RMMENT TO DELIVER From time to time within Wm* (20) days after request in writing therefor from Landlord. Tenant egress to execute and deliver to Landlord, or to such other addressee or addressees as Landlord may designate (and Landlord and any such addressee may rely thereon). a statement in writing in form and substance satisfactory to Landlord (herein caged 'Tenanre EMoppel Certificate'), certifying as to such maters as may be reasonably requested by Landlord. Tenant D:1LegallBcendaMlWORplpgEi'f-I.?eslCapitalCitylCajtmCdeOrilt{fuul).doe 32 EXHIBIT 1 eximssly agrees that landlord may assign its interest do the Tenants may act in malarial rellance thereon. Estoppel Certificate to its lender(s) at any time who Section 19.02: FAILURE OF TENANT TO PROVIDE. in the event that Tenant falls to provide a Tenanfs Estoppel Certificate within twenty (20) days after Landlords written request therefor, Tenant shall be deemed to have committed an Event of Default subject to the (Notice provisions of Article 16.. ARTICLE 20: QUIET ENJOYMENT Section 20.01: FAITHFUL PERFORMANCE. Upon payment by the Tenant of the Pont heroin provided for, and upon the observance and perfonnanco of all of the agreements. Covenants, terms and Coed lt!" on Tenants part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term without hindrance or tlon by Landlord or any otter person or Persons lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to the terms and conditions of Nts Lease, and mortgages. leases and other matters to which this Lease Is subject or subordinate. ARTICLE 21: SURRENDER AND HOLDING OVER Seetlon 21.01: DELIVERY AFTER TERM. Tenant shall deliver up and surrender to Landlord possession of the Premises upon the expiration or earlier temnination of the Tam, broom clean, free of debris, in good order, condition and state of repair and in compliance with Section 14.01 (excepting Landlord's obligation under this Lease, damage by casually and ordinary wear and tear), and shall deliver the keys to the management office of Landlord or to such other place as may be designated by notice from Landlord to Tenant. If not sooner terminated as heroin from time to dme provided . this shall ,ale at the and tine Term as provided for in Article 3 without the necessity of notice from either Landlord d or or Tenant to torm tsnnminate the same. . Section 21.02; EFFECT OF HOLDING OVER; RENT. If Tenant or any party claiming under Tenant remains in possession of the Premises or any part thereof, attar any expiration or termination of this Lane, no tenancy or Interest in the Premises shall result therefrom but such holding over shall be an unlawful detainer and all such parties shall be subject to Immediate ouster and removal, and (a) Tenant shat pay upon demand to Landlord for any period when Tenant shall hold the Promises after the Tone has terminated or expired, as liquidated rent for such period, a sum equal to all Pomatege Rent end Additional Rent provided for In this Lease plus an amount computed at the rate of domW one hundred twenty-fr a percent (125%) the Minimum Rut for such period, and (b) Tenant shall indemnify and hold harmless Landlord from all loss, cost, expense and liability whatsoever resulting from such holding over. Including, without limiting the gonera6y of the foregoing. any claims made by any succeeding tenant based on such kidding over. Notwithstanding anything to the contrary set forth herein, noWw the Minimun Rard or any of the other charges set forth hereunder shall be increased by virtue of Tenants holding over beyond the expiration of the Term or this Lease, provided that the parties hereto are proceeding In good failh to negotiate a new lease or renewal isasa. N Is understood and agreed, however, that when such new lease or renewal tease is executed by both parties, all of Its terms and provisions shat be retroactive to the date following the date of the expiation of this Lease. In the event the parties are unable to reach an agreement than upon noke from ether party to the other, the Lease shall immediately terminate and Tenant shall have tarty (30) days from the date of such notice to vacate the premises. If Tenets romaine is possession of the promises as a holdover tenant, edher as a month-b-month to nard or subsequent to the unsuc coullul negotiations for a renewal or exiansionof the Lease and falls to vacele and surrender same to Landlord within to" (45) days after apt of notice from Landlord demanding sumender of the Premises. Tenant shat be Noble for all damages and costs incurred by Landlord as a result of Tenants failure to vacate and surrender within said forty, fee (45) days. ARTICLE 22: CONDEMNATION Section 22.01: ALL OF PREMISES TAKEN. If the whole of the Premises shall be taken or condemned either permanently or temporarily for any public or gnroalinublic use or purpose by any Competent authority in appropriation prooeeft or domain by agreement or conveyance in Neu thoreof (each being hereinafter referred to as 'Coed won ? it ICI ternlnate as of the day possession shah be taken by such auharity, and Tenant shall pay Rent and perform all of its other obligations under this Lease up to that dab with a proportionate refund by Landlord of any Ron( as shall have been paid in advance for a period subsequent to the date of the taking of possession. I D.-I.ePhB- d"WORDIPREIT.Lus"%CViWCgrljunC'W-,ii(fimi).dx EXHIBIT 1 Section 22.02: LESS THAN ALL OF PREMISES TAKEN If less than all but more than twenty-five percent (25%) of the GLA in On Premises is taken by condemnation, or if (regardless of the percentage of the GLA in the Premises which Is taken) the remainder of the Premises cannot be used fo Laws upon r the care mg on of Tenants business, then In either event Landlord or Tenant steal each have the right to brmi?ate this is notice in writing to the other party withht nkrety (90) days after possession is taken by such Condemnation. If tIft Lease terminated, it shalt terminate as of the day possession shelf be taken by such authority, and Tenant shad pay Rent and perform all of b obligations under this Lease up to that date with a proportionate refund by Landlord of any R ent as may have been paid in advance for a period subsequent to the date of the taking of possession. 9 this Low is no[ so shall ? ted, It shall terminate only with respect b the parts of the Premises so taken as of the day of possession Rent by such authority, and Tenant steal pay Rent up to that day with a proportionate refund by Landlord of any may have been paid for a period subsequent b the date of such taking and, thereafter, the Rent and the applicable Break Point ahal be reduced in direct proportion to the armou t of GLA of the Premises taken and Landlord agrees, at Landlord's cost and expense, as soon as reasonably possible to restore the Premises on the land remaining to a complete unit of similar quality and character as existed prior lo such appropriation or taking (to the extent feasible provided that Landlord shay not be required lo expend more on such restoration than an amount r equal Lan to the condemnation award received by Landlord (leas air expenses, costs, legal teec and court costs Incurred by connection with such awarIncurred by dlord in Section 22.03: SHOPPING CENTER TAKEN If any part of the Shopping Center Is taken by Condemnation so as to render, in Lwxkordy ludgment, the remainder unsuitable for use as an enclosed mall shopping center, Landlord shall have the right to terminate this Lease upon notice in writing to Tenant within one hundred twenty (120) days after possession Is taken by such Condemnation. 9 Landlord so terminates this Lease, It shall terminate as of the day possession Is taken by the condemning aufhorlly, and Tenant shah pay Rent and perform an of its other obligations under this Leese up to that dab with a proportionate refund by Landlord of any Rent as may have been paid In advance for a period subsequent to such possession. Section 2204: OWNERSHIP OF AWARD. As between Landlord and Tenant, all damages for any Condemnation of all or any part of Shopping Center. Including, without bmtation, all damages as compensation for diminution In vallre of the leasehold, reversion and fee. and Tenant's leasehold improvements, shall belong to the landlord without any deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to Landlord df Its right, tips and interest to any such award. Although all damages in the event of any Condemnation are to belong to the Landlord, wthather such damages are awarded as compensation for diminution In value of the leasehold. reversion or fee of the Promises. or Tenant's leasehold improvements, Tennant shall have the right to claim and recover from the condemning authority, but not from Landlord. such compensation as may be separably awarded or recoverable by Tenant In Tenants own right for or on account of any cost or expense which Tenant might Incur in removing Tenants merchandise, furniture and Mires, provided such compensation does not in any way diminish the compensation otherwise ovallable to Landlord. ARTICLE 23: MISCELLANEOUS Section 29.01: INTERPRETATION. (a) The capstons, table of contents and index of defined terms appearing In this Lease are Inserted way as e matter of convenience and in no way amplify, define, limit, construe, or describe the scope or intent of such Sections of this Lease nor in any way affect this Lease. (b) If more than one person or corporation is named as Landlord or Tenant In phis Less and executes the same as such, or becomes Landlord or Tenant, then and In such evens, to words "Landlord' or 'fenaW wherever used in this Lease are intended to refer to all such persons or corporations, and the Ilabilty of such persons or corporations for compliance with and performance of all the berms. covenants and provisions of this Lease shat be joint and several. (c) The neuter, feminine or mosculine pronoun when used herein shall each include each of the other genders and the use of the singular shat include the piuraL (d) The parties hereto agree that all the provisions of this Lease are to be construed as covenants and agreements as though the words imparting such covenants and agreements were used In each separate provision hereof. Furthermore, each covenard. agreement, obligation and other provision contained in We Lease is. and shall be deemed and construed as a separate and Independent covenant of the party bound by. undertaking or make the some. and not dependent on any other provision of tis h Lease unless expressly so provided. g (e) Although the provisions of this Lease were drawn by Landlord, this Lease shat not be construed for or against Landlord or Tenant, but this Lease shat be Interpreted in accordance with the general tenor of the language in an effort to reach the intended reshit. Section 23.02: RELATIONSHIP OF PARTIES. Nothing lo contained shall be deemed or construed by the parties hereto. or by any third party, as creating the relationship principal and agent or of peftrnershtp or of joint venture between the parties herblo, it being understood and D:1f egaPBmm& MIWORD%FRErr-LeasftW*tidCitytCajmCa&ardl(fwaQ.bec 34 EXHIBIT 1 agreed that neither the metiod of computation of Percentage Rent, nor WV other provision cmtakted herein, nor any aC1,9 of the parties herein, shall be deemed to create any relationship between the parties hereto other than the relationship of landlord and tenant nor cause Landlord to be responsible in any way for acts, debts or obligations of Tenant. Section 23.03: NOTICES. Any notice, demand, request, approval, consent or other instrument which may be or is required to be given under this Lease shall be in writing, and, shall be deemed to have been given (a) when mailed by United Stales registered or cerlifted or express mail, return racelpf requested, postage prepaid and received or refused by the addressee. or (b) when sent by courier guarantying ovemtght delivery, addressed to Landlord or Tonord at the respective addresses set forth in the Fundamental Lease Provisions and/or such other address or addresses as either party may designate by notice to On other in accordance with this Section and received or refused by the addressee. Any notice by the Landlord may be given on its behalf by Agent or by an attorney for Landlord or Agent. Arty notice properly sent to Tenant shat be deemed effective whether or not a copy is sent to the address designated In the Fundamental Lease Provisions to receive a copy of such notice. Section 23.04: SUCCESSORS. This Lease and the covenants and conditions herein contained shall inure to the benefit of and be binding upon (subject to A WW 17) Landlord, its successors and assigns, and shall be binding upon Tenant, its heirs. successors and assigns and shall Inure to the benefit of Tenent and only such assigns of Tenant to whom the assignment by Tenant has been consented to by Landlord In writing. Nothing in this Section 23.04 shag be deemed to require Landlord to give any such consent. AN of Tenant's obligations during the Term pursuant to Section 445. 4.08, 4.07, 5.01. 5.02, 7.03, 8.03, 11.03 and 23.17 shag survive the expiration or earlier termination d thfs Lease. Section 23.05: BROKER'S COMMISSION. Tenant warrants that, except for Agent, It has dealt with no broker in connection with this Lease, and agrees to and shall defend, indemnify and save Landlord hamdess from all ctains, actions, damages. Costs and expenses and liability whatsoever, Indudirg reasonable attorneys' tees. that may arise from any claim by or through Tenant for a commission, finders or like fee in connection with its Lease. Landlord shall pay the foe or commission due Agent in connection with this Lease. Section 23.06: UNAVOMMLE DELAYS. In the event that either party hereto shag be delayed or hindered In or prevented from the performance of any ad required hereunder by reason of strikes, lockouts, khabgity to procure labor or materials. falture of power, restrictive governmental laws or regulations, gob, kauneclim, war (whether actual or th eatened), lack of access to the Shopping Center due to evawaton: damage or governmental order, fire or other casualty or other reason of a similar or dissimilar nature beyond the reasonable control of the party delayed in performing work or doing acts required Under the terms of this Lease, then psi for., ance of such ad, but not Tenant's obligation to pay Rent, shall be excused for the period of the delay and the period for the performance of any such ad shall be extended for a period equivalent to the period of such delay. During Tenants Construction Period the provisions of this Section 23.06 shag not operate to excuse Tenant from completing construction of the Premises within Tenant's Construction Period unless Tenant gives written notice of the delaying event to Landlord wthin tan (10) days of the occurrence of such delaying event. Such writer notice shall apecify the nature of the delaying event and file number of days of delay claimed to result therefrom. Tenant's Construction Period shall be extended for a period equivalent to the period of actual delay. After the Rent Cornmencemrnt Date the provisions of this Section 23.06 shall not excuse Tenant from the prompt payment of Rent and all otter sums due by Tenant under this Lease and such delay shah not extend the Term. Delays or fallures to perform resulting from lack of funds or the unavailability of a particular cormtractor or personnel shag not be deemed delays beyond to reasonable control of a party. Section 23.07: SEVERABILITY. k Is the intention of the parties hereto that X any provision of this Lease Is capable of two constructions. one of which would render the provision invalid and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. If any term or provision, or any portion thereof, of this Leese, or the appicaton thereof to any person or circumstances shag, to any extort, be invalid or unenforceable, the remainder of this lease, or the application of such term or pmvW m to the persons or droumatances otter then those as to which It is held invalid or unenforceable. shall not be affoctad thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. Section 23.08: TIME OF ESSENCE. Time Is of the essence with respell to the performance of the respective obligations of Landlord and Tenant set forth in this Lease. Section 23.04: OTHER TENANTS; RELOCATION OR TERMINATION. (a) Landlord reserves the absolute right to effect such otter tenancies In the Shopping Center as Landlord shag determine in the exercise of its sole business judgment Tenant hereby acknowledges that 0) this Lease contains no restrictive covenants or exclusives in favor of Tenant; (ll) this Lease shat not be deemed or interpreled to contain, by implication or otherwise, any warranty, representation or agreement on the part of Landlord that any department store or D:li egallBre W"WORDWRETf•LeaseslCapiWCtty1(ikj=Cafe(kUXfiasl).doc 35 EXHIBIT 1 regional or national chain store or any other merchant shall open for business or occupy or continue lo occupy any premises in or adjoining the Shopping Center during the Tenn or any part thereof or that Tenant shall generate a certain amount of Gross Sales or that any reimbursable amount payable by Tenant shah be any specific amount, and Tenant hereby oWos* waives all claims with respect thereto and acknowledges that Tenant Is not relying on any such warranty. representation or agreement by Landlord either as a matter of inducement in entering into this Lease or as conditim of this Lease or as a covenant by Landlord. (b) luring the Term or any renewals or extension thereof, Landlord may expand. renovate. remerchar d es or otherwise change the size or configuration of the Shopping Center or Landlord's Building and in connection iherewilh Landlord may requite Me Tenant surrender possession of all or a portion of the Premises either temporarily or permanently. Accordingly, Landlord reserves the right In such event, in Landlord's sole and absolute discredon, to either (1) offer to amend this Lease to (a) make changes resulting from any alteration in Tenant's GLA resulting from an alteration In the size or shape of the Premises and/or (b) relocate Tenant at Tenant's We cost and amemm b other comparable premises within the Stopping Center on the same terms and conditions as those contained in this Lease, eMwr on a temporary basis or for the balance of the Term, or (it) terminate this Lease In exchange for paying Tenant an anount equal to the unwno dized net cost to Tenant of its leasehold improvements In the Premises, which unamortized net cost shall be cabilatad using a straight hue amorfizakm schedule and an amortization period squat to the Rent Term plus any previously exercised renewal options afforded by this Lease. Landlord shall exercise its right set forth In this Section upon 30 phirty) days' prior written notice to Tenant ("landlord's Notice") which shall specify whether Landlord elects to amend this Lease and N so, include the proposed lease amendment or to terminate the acme. Tenant shall deliver to Landlord within ten (10) days after Landlord's Notice indicating Landlord's desire to terminsle this Lease, reasonably detailed evidence substantiating Tenant's unamortized net cost of Its ieasshdd improvements to the Promises and Landlord shall have the right to verify One accuracy thereof. Landlord reserves the right to rescind Landlord's Nonce of termination within Eon (10) days after receipt of Tererht's evidence substantiating Tenants unamorHned net cost of its leasehold improvements to the Promises and may in lieu of terminating fro same, elect to relocate Tenant to other comparable Promises in accordance with to provisions of (b) above. Any proposed amendment to the Lease shall afford Tenant at bast sbdy (60) days after the date of Landlwd's Notice before Tenant shall be required to surrender possession of any portion of the Premises and/or relocate. In fie event Landlord elects to terndnste this Lease, such notice shall provide that such termination shall not be effective for at least sixty (60) days after the date of Tenenrs receipt of Landlord's Notice. Tenant shat execute such amendment,-I"haA-dose within fifteen (15) days following Its receipt of the same and If Tenant feels to do so, Landlord shall have the further right at any time thereafter to terminals this Lease In accordance with the provisions of (1) above. Tenant shell vacate the Premises and surrender possession thereof to Landlord not lelor than the date specified in Landlord's Notice and In accordance with the terms of this Lease. Landlord wil pay Tenant its unamorbed net cost of Tenant's leasehold kprovements to the Premises within ton (10) days after Tenant vacates the Premises. Tenant agrees that the execution of the Issas amendment or its receipt of the payment of the consideration for the lease lonnimation in accordance with (e) above shall be Tenant's sob rernedy In the event Tenant is required to surrender possession of the Premises as provided in his Section. Notwithstanding the foregoing. following Tenant's relocation to the newly constructed Food Court Area as outlined In We on the attached Exhibit "A",exap/ as opeciNcally, provided hanin, Landlord's right to relocate the Pru to a now location (the "Second Relocation Premises") shall be "Jett to the following: (a) any such proposed relocation stall not occur during the first two (2) years following the Relocation Rent Coaanencernent bate; ref (O b) the area and the storshont width of the Second Relocation Promises shall be substantially the one size and length as tit area and width of tie Pmnhm and Its storefront provided, however, (i) if the Second Relocation Promises Is greater In am than the Pn nise% then then shall be no adjusbnarb to Minimum Rent mat Rents 9F charges duwandw4ke, Loose and (ill) If the area of the Second Relocation Promises is less than the area of the Promisor, then Minimum Rent 11 ON 0411OF Addigs-ol Rewle and *A" shall be scgusfad propordonaW,-(41 e) the Second Relooation Promises shall be located within the Fast Food Cluster of the Shopping Center (* d) Landlord will, at Landlord's sob cost and expense, reimburse the Tenant for any reasonable costs to fully construct, i prows and decorate the Second Relocation Premises, including any costs the store layout and preparation of archlbetural drawings for the Second Relocation Premises (except for Tenant's trade fixbrns and irwenbory) In a manner subellandally Identical to the Premises at the time of relocation, subject only to such modifications as may be necessary and approved by Tehaarht the Landlord In order to accommodate the configuration of the Second Relocation Premises; (") Landlord wig pay all costs incurred In connection with moving Tenant and Tsrant's tnede fixtures, inventory and other personal property to the Second Relocation Promteea, Inchw1 g may Incidental costs insured by Tenant In connection with said relocation (such as costs for new business cards and bHerhood), such Inddsntal costs not to exceed One Thousand 1-Fre44undrsd Dollars (S1,1W.00); (" Tenant shall not be obligated to pay any Minimum Rent or other charges for the period of fins during which Tenant Is closed as a result of such relocation: (h g) Tenant shall not be required to relocate between October 1st am December 31st, InetusWr and, (n Landlord shall only have the right to request Tenant to relocate N such relocation is caused by or results from a major remodel of the Shopping Center or Fast Food Cluster and not merely as a result of Landlords desire to accommodate a new or another tenant In the Shopping CaMsr. Tenant shall not be required to commence paying rent In the Relocated Premises until Tenant has completed the relocation of Tenant's business provided Tenant diligently pursues such relocation. Further, N Landlord and Tenant do not agree upon a Second Relocation Premises or if Tenant sleets not to reloale, then Landlord shall pay Tenant upon Tenant's vacating the Premises the unamortized value of TonanCs improvements In the J;1LtVieese1W1V60 (Capiml City)1C51anCdvan11-n260.doc 36 EXHIBIT 1 Premises (amortised over the Original Tom of the Lease the Landlord agrees that all alterations to the Premises necessitated by the expansion. renovation or other change to Shopping Center referred to in this Section will be performed by Landlord at its sate cost and expense including, if PremTenantbelects to execute the (ease amendment referred to above which provides for a permanent relocation of the es, the construction of improvements to any relocated premises designated by Landlord such that such relocated premises will be comparable in finish to the Premises demised hereby as they existed i nrnediately prior to Tenant's vacating the some. In the event Tenant is required to temporarily relocate, Tenant shall accept the relocated premises -as is' and Landlord shall not be required to perform any work therein. In addition, Landlord will reimburse Tenant for its reasonable and substantiated expenses incurred in moving from the Premises originally demised hereby to On relocated premises (and returning to the original Premises, if applicable) which reimbursement shall be made within forty-five (45) days following Tenant's submission of Tenants documented expenses In the event Tenant is required to only surrender a portion of the Premises to Landlord, but is able to operate in the remainder thereof, Rent shall abate on a proportionate basis from the date Tenant surrenders to Landlord possession of the portion of the Premises so affected. Section 23.10: APPUCA13LE LAW. The taws of the state in which Landlord's Building is located shall govern the validity, performance and enforcement of this Lease. If either party Institutes legal suit or action for enforcement of any obligation contained herein, it is agreed that venue for such suit or action shall be In the state in which the premises are located. Section 23.11: WAIVER. (a) The waiver by Landlord or Tenant of any term, covenant, agreement or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other terms, covenant, agreement or condition herein contained. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant. agreement or em^rutinn of #1(. EXHIBIT 1 Premises (amortized over the Original Temp of the Lease) Landlord agrees that all alterations to are Premises necessitated by the expansion. renovation or aaher change to the Shopping Center referred to in this Section will be performed by landlord at its sae cost and expense including, if Tenant elects to execute the lease amendment referred to above which provides for a permanent relocation of the Promises, tine construction of improvements to any relocated premises designated by Landlord such that such relocated Premises Will be comparable in finish to the Premises demised hereby as they existed immadiiafsly prior to Tame$ vacating the same. In the event Tenant is required to temporarily relocate, Tenant shalt accept 00 relocated promises -as is' and Landlord shall riot be required to perform any work therein. In addition, Landlord WIN Mffdxrse Tenant for its reasonable and substantiated expenses incurred in moving from the Premises originally demised hereby to the relocated premises (and rctumig to the original Premises, if applicable) which reimbursement Sher be made within forty-five (45) days blowing Tenarifs submission of Tensors documented expenses. In the event Tenant Is required to only surrender a portion of the Promises to Landlord, but is able to operate in doe remainder thereof, Rent shah abate on a proportionate bests from the date Tenant surrenders to Landlord possession of the portion of the Premises so affected. Section 2&10., APPLICABLE LAW. The laws of the state in which Landlord's Building Is located shag govern the vatklty, performance and eMorcement of this Lease. If either party institutes legal suit or action for enforcement of any obligation trained herelm it is agreed that venue for such auk or action shag be in the state In which the Premises are located. Section 23.11: WAIVER. (a) The waiver by Landlord or Tenant of any term, covenant, agreement or condition herein contained shall not be deemed to be a waterer of any subsequent breach of the same or any otter tams, covenant, agreement or condition herein contained. The subsequent acceptance of Rent hereunder by Landlord shag not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant, agmemrent or condition of thts Lease, other Ilan the failure of Tenant to pay ms particular Rent so accepted, regardless of Landlord's knowledge of such preceding breech at the time of acceptance of such Rat. No covenant term, agreement or condition of this Lease shall be deemed to have been wased by Landlord or Tenant, unless such weiver be in writing and executed by the party Waiving same. land . rd(b) No waiver of any covenant, tam, agreement or conWition of this Lease or legal right or remedy shall be implied by the failure of landlord to declare a forfeiture, or for any other reason. No wager by Landlord in respect to one or more tenants or occupants of landlord's Butting or any other part of the Shopping Center shag constitute a waiver in favor of any other tenant A party's L mderge consent to, or approval of, any ad by :FemA requiring loondomft consent o approval shall not be deemed to waive or render unnecessary Landlord's consent to or approvat of any subsequent s6nNar act. by Temamt. No consent or approval by Landlord or Tenet shag operate to change any condition, requirement or other provision of this Lease on any occasion unless made in writing and executed by a general partner (or executive officer) of Landlord or Tenant as applicable. Section 23.12: ACCORD AND SATISFACTION. No paymeM by Tenant or recelpt by Landlord of a law amount than the Rent herein slipufaled shag be to be other than an 8fx0unl of he earliest stipulated Rent nor Shall any endorsement or statement on a chackon any letter accompanying any such check orpayment as Rent orare Ike be deemed an aecad and satisfaction, and Landlord may accept such check or payment without prejudice lo Landlord's rights and remedies to recover the balance of such Rent or pursue any other right and remedy provided for In this Lease or available at law or in equity. If Landlord shag direct Tenant to pay Rent to a lockbox" or odwr depository whereby checks issued In payment of Rent are initially cashed or deposited by a person or entity other then Landlord (albeit on Landlord's authority) then. for any and an purposes under this Lease: (a) Landlord shag not be deemed to have accepted such payment until ninety (90) days MW the date on which Landlord shall have actually received such funds, (b) Landlord shall be deemed to have accepted such payment d (and only 1) within said ninety (90) day period. Landlord shall not have refunded (or attempted to refund) such payment to Tenant and (c) Landlord shall not be bourW by any endorsement or statement an any chock or any rafter accompanying any check or payment and no such endorsement, statement or letter shag be deemed an accord and sadafaction. balance Landlord of or Landlorft such rent or bank may accept such check or payment wWWA prejudice to Landlord's right to recover the pursue any other remedy provided in this Lease, at law or In aqulty. Nothing contained in the Immediately preceding sentence shag be construed to place Tenant in default of Tenanrs obligation to so long as Tenant shag finely pay the Rant P8Y Rent iF and for required pursuant to this Lease in the roamer designated by Landlord. Section 23.13: CORPORATE TENANTS. In the event the Tenant hereunder Is a corporation, the persons executing V" Lam on behalf of the Tenet hereby covenant and warrant that the Tenant Is a duly constituted corporation qualified fo do business in the state in which Landlord's Bullditg is located; all Twmnft franchise, corporate and other lienable faxes have been paid b date; all future forms, reports, fees and other documents necessary for Tenant to complywllh applicable left wit be filed by Tenant when persons are duly authorized by the governing body of such corporation to execute end deliver this Lease (indudkV the warrant endlor power of attorney provisions contained in Section 10.02) on behalf of the corporation. Section 23.14: TENANT'S GUARANTOR. DELETED. D:%Legotl&eadaMIWORDIPREIi-Ita=%CepitdCttyl ur,C,fe(3nlgfisai).doe 37 EXHIBIT 1 Sedlon 23.15: RECORDING. This Lease shall not be recorded: however Landlord shall have the right to record a short form or memorandum thereof, at Landlord's expense, at any time during the tern hereof, and Tenant shall execute same. Section 23,16: AGENT OF LANDLORD. Agent has acted as an agent of Landlord n connection with the execution of this Lease and shop rat in any event be hell liable to to Landlord or to Tenant for the fulfillment or nonAMment of any of the terms or conditions of this Lease or for any action or proceeding drat may be taken by landlord against Tenant, or by Tenant against Landlord. Any wvalver of Landlord's liability hereunder, Including any waiver of subrogation rights, shall apply with equal force and effect to, and as a waterer of any liability of, Agent. Section 23.17: HAZARDOUS MATERIAL (a) As used herein the term "hazardous materlaP means any flammable. explosive, medical, human or animal tissues or substances, hazardous or toxic substance, material or waste (Mcluding, without limitation. asbestos and chlorofluorocarbons) which has been, or in the future is, determined by any state. federal or local governmental authority or any law, ordinance, statute. governmental rule or regulation to be capable of posing a risk of injury to health, safety or property and/or the use, storage and/or disposal of wM9oh Is regulated by any governmental authority, including, without limitation, all of t heas materials and substances designated as hazardous or toxic by the local government having jurisdiction over the Premises, the U.S. Environmental Protection Agency, the Consumer Products Sdety Commission, the Food and Drug Administration or any other governmental agency now or hereafter authorized to regulate materials and substance. Tenant shall not cause or permit any hezwdous material to be installed in tiro Promises as a part of Tenaws Work or otherwise brought upon, used, kept atored or disposed of in or about the Premises or the Shopping Center by Tenant its agents, employees. contractors or IrMbees. Notwithstanding the foregft, Tenant may handle, sore. use and dispose of products containing small quantities of hazardous materials (such as aerosol cans containing Insecticides, toner for copiers, paints, vamkhes and cleaning supplies) of insignWcant quantities stored in sealed containers and used in accordance with manufechuers' requirements. (b) if the Premises. any equipment (including. without limitation, WAC equipmentt trade fixtures or other mechanical apparatus therein contain any hazardous materials installed by Teoanl, its agents, employees. contractors or invitees under Tenanfs control, Landlord, at its election, shall have the right to (1) cause Tenant to remove and property dispose of same, all at Tenant's sole cost and expense, in accordance with applicable law and means and methods approved In advance by Landlord and its professional consultants, and Landlord shall have the right to monitor such work or (ill) perform the removal and disposal thereof Itself, in which event Tenant shall comply wdh at reasonable requirements Imposed by Landlord with reaped to fie performance of such work, including without knitallon closing the Premises for business and remaining closed during the performance of such work, and Tenant shall reimburse Landlord, on demand, for the cost incurred by Landlord in perfonming such removal ('nduding Landlord's cost of professional consultants). (c) Tenant shalt: (1) Pr'omPtlY Provide Landlord with copies of any document oorresponderrce, report or communication, written or oral, relating to hazardous materials at or affecting the Shopping Center (x) to or from any regulatory body, or (y) stating a basis for any potential liability or responsibility of Tenant, Landlord, or the Shopping Center, inxiuing ON such documents, Con'espondenoe, reports or communications prepared by or on behalf of Tenant In addition to the above, at Landlord's request Tenant shall prvhrlde copies of any and all records and communication whatsoever relating to hazardous materials at or affecting the Shopping Carter. (N) immediately notify Landlord In the event of a suspected or confirmed release Of a hazardous material or violation of environmental laws at or affecting the oppig Carrier and caused by or related to the operations of Tenarg, Its ploy, contractors. agents, or any party acting on behalf of Tenant and. at Landlord's sole option. either prompty rUnhhedlale or correct such release or violation to Landlords satisfaction or reimburse Landlord's cost of remedialion Including reasonable atlonwir and consutants' fees) all as set forth in (b) above. and compensate Landlord and/or third parties for all resultant damage. (ill) Permit Landlord reasonable access to the Promises for the purpose of epnducting an environmental audit or testing, the cost of which anal be borne by Landlord Unless the results Indicate activity prohibW by environmental laws or hereunder. (d) In accordance with the Occupational Safety and Health Administration Asbestos Rule (199M, 59 Fed. Reg- 40964, as amended and supplemented (`OSHA Asbestos Rule*). Landlord hereby notifies Tenant of the presence or possible presence of asbestos containing materials ("ACMs") and/or presumed asbestos contahnhg materials ("PACMaI (as such terms are defined In the OSHA Asbestos Rule) within the Premises or adjoining enclosed common areas. N any. The ACMs and PACMs may take the form of pipe wrap. vinyl asbestos flooring, sprayed on or trow led on fire proofing, acoustical plaster, insulation, textured ceiling paint and other forms. The specific location of amr ACMs or D:U.eBaA -d"WORDTREIT Ltrial.30M'CigiCtimCI&Grill(fml).doc 38 EXHIBIT 1 PACMs W" the Premises or adjoining Common Area may be ascertained by Tenant requesting in Writing from Landlord, without cost or expense to TenaK the applicable portions of any environmental im landlord regarding the shopping Center. The purpose of Landlord's notification Is to make Tenant, in asurvey conducted by and corntraclors aware of the presence or possible presence of ACMs and/or PACMs In the?l ? ??s avoid or minimize any damage to or disturbance of such ACMs and/or PACMs during propping the ressofCenter in order to and/or Construction Work. Tarrant shall obtain a signed Tenant's Work working in or went from ft agents, employees and contractors nit about the Premises indicating that such agents, employees and contractors are aware aware of of the presence or possible presence of ACMs and/or PACMs within the Shopping Center and agreeing not to dfslurb the same during the Performance of Tenant's Work and/or Construction Work. At Landlord's request, Tenant shah deliver to Landlord copies of such signed aduowiedgments. (e) Tenant shag comply with all applicable Governmental Re7 rements affecting the Premises, the operation of Tenants business at the Premises, and the use and removal of any substances therefrom, Including, witihout imitation, hazardous materials installed by Tenant, its agents. employees. contractors or invitees. Such compliance shad include, inter aria; (I) the filing by Tenant of all goverimlerntai applications and registrations for all substances used, stored, mani fadured, generated or otherwise in the Premises. (ii) the obtaining of all icerms and permits with respect thereto; authroe timely fling from time to time, as required. of all reports and other matters required to be filed with governmental having Jurisdiction; and (iv) notifying each of its agents, employees and contractors of the presence or presumed presence of ACMs and PACN%within the Shopping Center as set forth above. (0 Tenant shall protect, defend, indemnify and hold Landlord harmless of, from and against all claims, actions, liens, demands. costs. damages, Punitive damages, expenses, fines and judgments (Including legal costs and attomeys fees) incurred by reason of any actual or asserted failure of Tenant to fully comply with the provisions of this Section 23.17 and/or spills or other contamination of air. sod, or water by or resulting from any hazardous materials installed by TenaK its agents, employees, contractors or Invitees at or around the Remises or the Shopping Center or resulting from removal thereof. Landlord agrees to indemnify, defend and hold harmless Tenant. Its subtenants and essigneas and their respective agents, employees, officers and directors from and against any and ON claims, clean-up costs, expenses, attorneys' fees and court costs which may arise as a domages, sod", result anyof claim or Onddkv fines, that Hazardous Materiels are present within, upon or beneath the Shopping Center or Premises and such presence is not due to acts, negligence or conduct of Tenant or its agents, employees, contractors or assigns and Landlord will, at its sole properly remediate, remove and abate such Hazardous Materials in accordance with all applicable laws, rules. regulations and ordinances. "I in each case to the exbrd such Hazardous Materials are present as a result of the acts of Tenant. its subtenants or assignees or their respective agents, employees or contractors. If Tenant is unable to operate is business In the Premises due to the presence of hazardous Materials in the Premises or Shopping Carder and such 1 Immdous Materials are not present as a result of Tenant's acts or omissions, then all rents an charges shall abate until Tenant is able to reopen for business in the Premises. (9) Upon ten (10) days prior written request from Landlord. Tenant shall execute, acknowledge and deliver to Landlord a written statement in form satisfactory to Landlord certifying (i) If true, that Tenant has not disposed of any oil, grease, toxl% or (hazardous material, at the Premises or (d) that any such substances used. processed or generated at the i wises here been disposed of properly in accordance with all applicable Governmental Requirements. if Tenant is certify either of the above, Tenant shall so notify Landlord and give Landlord the details resulting in Tenard's Inability to so certify. (h) Tenant shag surrender the Premises to Landlord upon the expiation or earlier termination of this Lease (roe of hazardous materials brought ihereen by Tenant and those acting an its behalf and In a condition wehlcth complies with all Governmental Requirements, recommendations of Consultants hired by Landlord, and such outer reasonable requirements as may be imposed by Landlord. (I) This Section shag survive the expiration or sooner termination of this tease. Section 23.18: FINALI?ATION OF CHARGES. no= endlg anything to the contrary contained Ili this Lase, Tenarnt's falure to object to any stalemord, invoioe or dered by Landlord within a porlod of one haxncked eighty (180) days sdter receipt thereof shall constitute Tenant's ergce with respect thereto and shall render fish stademerd, invoice or billing a final end minding account stated Landlord and Tenant Landlord end Tenant intend that tie foregoing provision shag supersede any right lo audit t back up docurnentadon from Landlord wtnich may o8osrwise be provided by this Leese and to foregoing are rut Ihterhded to grant any such right to Tenant not oihenrNSe sngxessly provided In this Lease. If than la a adjustment a an adjustment resulting from ore error In tine calculation of any eborpm Payable by Tenant s Leaa (other chart Minimum Rsnt and to eenlap Raney inckadhtg, without insurance, utilities and Fast Food Cluster and Shopping Center Common Area coats, which r?aults char for W eared by Tenant, Landlord shall notify Tenant of any such deficiency within eighteen (18) months after the expiration of the Lease Year to which such charge or adjustment Is applicable. If Landlord does not notify Tenant of such deficiency within said eighteen (18) month perlod. Landlord's claim to such defictenay shat be downed waived and discharged. D:U.egsABrerrdaps(1WO1tD1PRLrff--I.easeslGpitalCitytCajcm?f?l(finsl}.doc 39 EXHIBIT 1 Section 23.18: PRIOR LEASE. DELETED. Section 23.20: FINANCIAL INFORMATION. Tenant shag at any time and from time to am within twenty (20) days of written request from Landlord, deliver b Landlord such financial Information concerning Tenant, Guarantor and Tenant's and Guararws business operations as may be requested by Landlord, any mortgagee or prospective mortgagee or purchaser or prospective purchaser. Section 23.21: SPRINKLER CHARGE. Deleted. Section 23.22: NOTICE TO MORTGAGEE. If the holder of any mortgage which has a lien against the Shopping Center or any part thereof forwards to Tenant written notice of the existence of such lien, then Tenant shall, so long as such mortgage is outstanding. be required to give so such genhol der the same notice and opportunity to correct any default as Is required to be given to Landlord under this Lease, but such notice of default may be given by Tenant to Landlord and such lienholder conaurerAty. Section 23.23: WAIVER OF JURY TRIAL Landlord and Tenant hereby waive at right to a trial by jury In any litigation related to this Lease including any mandatory counterclaim or cross claim. Section 23.24: CONFIDENTIALITY. It is agreed and understood that Tenant may acknowledge only the existence of this Lease by and between Landlord and Tenant, and that Tenant may not disclose any of the terms and provisions contained in ilia Lease to any tenant or other occupant in the Shopping Center or to any agent, employee, subtenant or assignee of such tenant or occupant. Tenant acknowledges that any breach by Tenant of the agreements set forth in We Section 2324 shag cause Landlord Irreparable harm. The terms and provisions of this Section 2324 shalt survive the termination of this lease (whether by lapse of time or otherwise). Section 2325: RIGHT OF FIRST REFUSAL. , As a specifically bargained for right hereunder, 9 Tenant makes an assignment for the benefit of creditors, flies or suffers the filing against It of a petition under any chapter of the United States Bankruptcy Code, or N proceedings for reorpaniradon or composilion with creditors under any federal or state law are kmWkrled by or againal Tenant and Tenant or Tenerife trustee (as the case may be) subsequently ailerrrpts to assdgn this Lease or Tenants interests In Oft Lease pursuant to 11 U.S.C. § 365 or otherwise, landlord shall have the right of first refusal to purchase and assume this Lease and Tenant's Interests thereunder (wtlectivey Tenant's Leasehold Interests") upon the following terms and conditions: a. N Tat o t receives a bona fide, arm's length offer to purchase Tenants Leasehold Interests (the 'Third Party Offer), which Third Party Offer Tenant or Tew is trustee (as the case may be) deems acceptatiK Tenant or Tenant's trustee shall first, deliver a copy thereof to Landlord (`Landlord's RFR Notice'). Landlord shall thereaft have the right to assume and acquire Tenants Leasehold Interests described in Landlord's RFR Notice on the same terms and conditions as set fog in the Thud Party Offer. b. Within thirty (30) days following Landlord's receipt of Landlord's RFR Notice, Landlord shall notify Tenant or Tenants trustee (as the case may be) in wrung of Landlord's intention to exercise go right of refusal to acquire Tenants Leasehoid Interests or be deemed to have waived such right of first refusal with respect to 11he transaction described in Landlord's RFR Notice. If Landlord timely exer isle Landlords right of first refusal, Tenant or Tenants trustee shall be deemed to be contractually bound to sell and assign Tenant's Leasehold Interests exdustvety to Landlord In accordance with the terms and conditions set foM In to Third Party Offer. If Landlord falls limey to respond to Landlord's RFR Notice or declines to exercise the right of fast refusal granted hereunder In such Instance. then Tenant or Tenant's trusbe (as the case may be) shall be free to sell and assign the Tenants Leasehold Interests described in the Landlord's RFR Notice to the proposed purchaser (the 'Third Party PurchnW) on the same terns and conditions act forth in the Third Party OW provided. however. that the sale and assignment of Tenant's Leasehold Interests I* the Third Party Purchaser shall be and remain subject to Oils right of first refusal provtslon, such that any fut um assignment of this Lane by the Third Party Purchaser or any successor thereto, shall be and remain subject to the tight of refusal herein granted to Landlord. C. There parties hereby specifically acknowledge and agree that the right of fast refusal gnarrtad lo Landlord herein is not Intended to operate, and shat not be consWixi. as a provision that prohibits, restricts, or conditions the assignment of this Lease within the meaning of 11 U.S.C. § 365(1) or any similar statutoryprovision. Section 23.26: COTENANCY. It at any time (ij two (2) or more Majors Premises cease operating (except In connection with damage. destruction. condom naton, closing for remodeling. dosing for effectuating assignments, and similar matters) and remain closed for more than sbc months (6) months or are not replaced by a comparable tenant, and rug less than seventy-live D:lLepa BrmdaktlWORD1PREIT-Loam CapibriW4junCafeGnll(Saal)Aw 40 EXHIBIT 1 percent (759) of the leasable arse of to Food Court and r1i) less than sbcty4lve percent (65%) of the remaining GLA of the Stopping Center are open for business and these conditions exist for more than thirty (30) days, Tenant's Minimum Rent and Percentage Rent shah abate and Tenant shall pay monthly wMlh thirty (80) days after Ms end of each month, eight percent (8%) of its monthly Gross Saks. Tenant's Additional Rent shat be unaffected by such abatement K for more than twelve (12) consecutive months said cotenancy remains umet. Tenant may eke to terminate this Lease upon rat less than thirty (30) days' prior written notice to Landlord girren no later than sixty (60) days after the end of the twelve (12) month period. If Tenant does not elect to terminate this Lease as herein provkfed, Tenants right to the rent abatement shall terminate and Tenant sW be required to pay Minimum Rent and Additional Rent as provided under In Lease retroactive to the first (1) month fdW* tg the twelfth (124) month during which In cotenanryy requirement remained unused. If after to date hereof, Landlord adds one or more Majors to the Stopping Center, then from and after such date the number of Majors referred to in the fast serftwe of this section shale automatically be increased by the number of Major(s) so added. iron and Mw the opening date of each such additional Major(s). Section 23.28: ENTIRE AGREEMENT, (a) There are no oral agreements between the parties hereto affecting this Lease, and Otis Leese supersedes and cancels any and all previous negotiations, arrangements. letters of intent lease proposals, brochures, agreements. representations. promises. warranties and understandings between tha parties hereto or displayed by Landlord to Tenant with respect to the subject matter thereof, and none Orereof shag be used b interpret or construe this Lease. The Lease soft forth all of the covenants, promises, agreements, cottdilione and understandings between lartdlard and Tenant concerning the Promises, Landlord's Building and the Stropping Center. No alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing, signed by ahem and mutually delivered between them. (b) The suttntission by Landlord to Tenant of this Lease shall have no binding force or effect, shah not constitute an option for kasing of Bte Promises nor confer any rights or Impose any obligatlem upon either party until dw execution thereof by Landlord and the delivery of an executed original copy V~ to Tenant. JUDGMENT CONTAINEDININ SECTION 6.02(b) AND (c AAND THAT THE THAT IT FULLY UNDERSTANDS THE CONFESSIONS OF CREATED BY THIS LEASE IS COMMERCIAL IN NATURE. TENANT WANES ANY RIGHT TO A HEARING WHICH OTHERWISE WOULD 13E A CONDITION TO LANDLORDS OBTAINING THE JUDGMENTS AUTHORIZED BY SUCH SECTIONS AND ACKNOWLEDGES AND AGREES THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT LANDLORD MAY OBTAIN A JUDGMENT AGAINST TENANT AS SET FORTH IN SUCH SECTION WITHOUT FURTHER PRIOR NOTICE TO TENANT AND LANDLORD MAY THEREAFTER GARNISH OR ATTACH TENANT'S ASSETS OR PROPERTY AND MAY PLACE A LIEN ON THE SAME WITHOUT FURTHER PRIOR NOTICE OR OPPORTUNITY FOR A HEARING. TENANT HAS CONSULTED WITH AN ATTORNEY REGARDING THE RIGHTS WHICH ARE BEING WAIVED UNDER THIS LEASE, HAS BEEN FULLY ADVISED OF THOSE RIGHTS AND NONETHELESS KNOWINGLY., INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS OR TENANT HAS HAD THE OPPORTUNITY TO SO CONSULT WITH AN ATTORNEY AND KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WANES THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING THE WAIVER OF THESE RIGHTS AND NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WANES SUCH RIGHTS. IN WITNESS WHEREOF, Landlord and Tenant have executed this tease as of the data first herelnabove written. LANDLORD: PREIT SERVICES, LLC, Agent for PR CAPITAL CITY LIMITED PARTNERSHIP BY. JOSEPH F. CQRADlNO PRESIDENT TENANT: MAGIC WOK MANAGEMENT, LLC T1A CAJUN CAFt GRILL 8Y: ? Attest ,' t Title: aS eretm D:rL,egsllBreadeMIWORDIPRETf.LeaseslCaPih[CitylCajunCafeGrip(fwl)•doc EXHIBIT 1 e EXHIBIT 1 EXHIBIT B" GUARANTEE OF LEASE {NOT APPLICABLE] I D:%ega?amd&MIWORDTREIT LesmT-piWCI'ry1Gj .WeGnK(fiD4 doc 42 EXHIBIT 1 t'( aIT "C" COMPLETION CERTIFICATE DATED AS OF PARTI SHOPPING CENTER LEASE (the 'Lone) defied as of Parties: PR CAPITAL WY LIMITED PARTNeFtsHip Premises: Tenant Store No. GI.A of Premises:- salwe feel Actual Opening Dale: Rent Commencement Date: Expiration Date: CLandlord") ("Tenant") PART II Tenant, Mending legally to be bound hereby, hereby ratirhes to Lease and hereby centres and agrees with Landlord as follows: A. the dates and other information set forth in this Completion Certificate are true and correct and, B. the Rent Term commences on the Rent Commencement Date set forth in PART 1 hereof and ends absolutely and without notice at 11:59 P.M. (local time) on the Expiration Dale, unless sooner terminated as provided In this Lease or wdended by writen agreement of the perties; and, C. the Lease has not been assigned, supplemented. amended or O#wvtse modified: the Lease represents the entire agreement between the pardes as to the Promises and Its leasing: two are no breaches or other defoulle by Landlord under the Lease; aft oonditions of the Lease to be performed by Landlord and necessary to the enforceability of the Lease have been sats(led; the Lease is in art other regards in full force and effect; and. D. Tenant has accepted possession of and has entered into occupancy of the Premises; the Premises has been accepted by Tenant as being in accordance w11h the terms and conditions of the Lease; no Rent has been not volt be paid or prepaid other than as provided in the Leas and these are no deferaec, offsets. deductions or courfttlelme against the enforcement of the Lease by Landlord or the payment of Rent by Tenan% and, E. the Lease is subordinate to the REA and to any and all mortgages on or deals of trust as to the Shopping Center subject to the non-disturbance provision of Section 18.02 of the Lease. PART ill In addition to the foregoing ions. Tenant has delivered to Landlord art of the fotowing documents to work that has been Wormed by, through or under Tenant in or about the Promises- A. A. properly executed and ackna ledged Mldwb (satsfactohy to Landlord) from contractors engaged by Tenant that all worts h or about the Premises has been fully completed in accordance with the Final Plans approved by Landlord and that each of TWAVO contractors, as wall as at subcontractors. laborers and materlelmen, has been paid In full; and 8. PfOWY executed and acknowledged releases of mechanics', malerlelmeh'S and laborers, tens (satisfactory to Landlord) with respect to the Promises from each of Tenanrs contractors and from every subcontractor and materielman; and Premises, a set of approved "as-buff" dravAngs and spedCcat ons for the work done by Tenant in and about the Prepared, signed and sealed by Tenantt architect, together v th a complete set of Tenanrs 'as4xgl " sprinkler and other fire protection dravwngs and specifications prepared. signed and sealed by Twwrs archtect or engineer, and D:1LegsABm d"WORINPREIT.I.eamrApitslCiglQj mCa(otr(i S_l dos 43 EXHIBIT 1 D. true and complete Copies of ceacates of om an and licenses from Jurisdiction over Tenanirs use or oecupanq of any part of the Premi 9o"emrner>ml bodies having ses; and E. a detailed Cost brs!ak-down sheet satisfaclory to Landlord spedfyft the line items and cost of each line item of the work done by, through or under Tenant in and about the Premises; and, F. electrical underwriters certificate from an orpnaation satisfactory to Landlord. All terms defined In any other part of the Lease are used herein as defined therein. This COMPLETION CERTIFICATE has been tomoaled as of the date first above written. By: (Co waft Seal) Title: Attest: Title: i D:1[,eBanBaead+M?wORtKPRFIT Lesa«VCapitstCitylCsluoGfeGrt71(6m1).aoc 44 EXHIBIT 1 EXHIBIT "E" FAST FOOD CLUSTER TENANT EXHIBIT This FAST FOOD CLUSTER TENANT EXHIBIT (the "FFC Exhibit' is annexed b and made a pan of the Shopping Center Lease (the "Lease") by and between M aw, currently as Tenant for 11ase Prerhhise? CfTY LMIITEn a9[tTNERSHIP as Landlord, and Number ?t (the "Pr.misec") in SUkI k MM, wits, an address of by Landlord as Tenant Store pR Capital Office, 3506 Capitol City Mao Drive, Camp Hill, Penns ? Limped PartnersMp, Management and Is executed of even date with the said Lease.'. 17011, Attn: General Manager. In the event a conflict arises between the provisions of this FFC Exhibit and any other part of the Lease, the ? Lions of this FCC Emit ?I modify and supersede the conthctkhg provisions of such other part of the Lease to the necessary conflict but not further. AI terms which are defined in any other part of the Lease shah have the same meaning when used herein. ARTICLE 1: THE FOOD COURT AREA Section 1.01: THE FOOD COURT AREA. The "Food Court Ana" (sometimes referred to in this Lease as the "Fast Food Cluster") means and shah be specifica limitation the area ign d f asswell restaurant operations situated in the Landlord's Building, fig, without the id aldespremises, a3 Court Area. any seating area and the maintenance areas exclusive, serving the Food Section 1.02: FOOD COURT SEATING AREA. The "Food Court Seating Ana" means and shad be ft portion of the Common Aron which Is made avalable Landlord Owl by Landlord forflumish panp?ses and $hall be for the ran-exclusive use by customers and patrons of the Food Court Area fatales. stairs, accessories and other lWwt floor covering, fighting fixtures, decorative and permanent fixtures, caging, tables. halmme and property In the Food Court Seating Area. Landlord shall be the sole owner of said or both. of the Food Court shaa all how the Me right to number, make changes ? time to Oma in the also, shape or location and other property therein. Seaft type and style of any or all aspects of the facgdes egtaipment Section 1.03: CHANGES BY LANDLORD. As between Landlord and Tenant, Landlord shall at ON times have the right and privilege of dot and extent of the Food Court Area and of making such changes. rearrangements. additions, or roductionsi therein and thereto from lime to time which in its opinion are deemed to be desirable and for the beat Interest of a signllcart number of the persons using the Food Court Area or which are made, pursuant to federal. state or local, environmental or other law, rule, regulation, guidelinent of this or Le order. ase. Landlord reshash h any as a of however, change materially the dimensions of the Premises. ludlFnered not, SeeNort 2.01: USE. ARTICLE 2: USE Tenant shag use the promises solely for the preparation, sale and delvery of food b the pub, for carry out" a for consumption In the Food Court Seating Area. Tenant agrees to set only Irate food cams Section fn of the Fundamental Lease Provisions (those food henna hereitnaflur sometknes referru ,a riy sat forth in Ywblt •p?l and to maintain the highest standards in quality, portions of 4WAVs ProPuration of such food hems. Tenant agrees to oiler for sale each of the a . and numsrlW 01202 secure ju food WI on the Menu and any failure b al any of the Mama on the Menu (other than Tenanra inablttty to using Its best efforts to do so or a b rty besptie Landlordk specific written approval ) tnl doomed a material Pursuant ant to for S or addflion to q ch Menu without shah be doeemed a an Event of Default M pur 1ti.01 of this addition to any other rights or remedies purscasnt to this Lease. Landlord shag foil fie: and, in Tenant's failure to sun, specifically have the right to terminate this Lease S Tenant violates this provision. a? Section 2.02: DISPOSABLE PRODUCTS. For the purpose of serving food and beverages to the public, Tenant degradabie goods and utensils, including, but not limited to, cur agrees to use °r't y disposable ?? , ? strawsaquas, napkins, spoons, forks, knives, shit sticks and the Ike (collectively the me t s, • boob. . baps. develop a uriform design for all such Disposables as may be required in les") Landlord anal have the, right to the Operation of On Food Coud Area; PrwAdeA however, Tenant shah be permitted to use Tenant% standard Dispo sables n used In Tenants carer fanpan Cafi i Grill operations. Al Disposables shall bear the name endlor logo -Vo4ffift" the of Tenank-W r#any. Tenant across, In any evert, to use only Disposabfe s of Landlord. Tenant shall not be required to purchase such Disposables from type. see, rdaterial and color approved by Landlord. but Landlord may, for the D:V.egsllBreadaMlwoR!?IPREit=1.essesl(?piDlCitylCs;?feCkill(final).doc 45 EXHIBIT 1 convenience Of SWPIYboth ot such psojes, develop a local source of a". Tenant shale at all times heVe the fight 1 develop its arm provided onl that the Drsposabtes meet the rsquiremw is stated herein. Section 103: EMPLOYEE DRESS AND CONDUCT. uniforms, the colors shall at all tines be required to present a clean and well-groonhed appearance and shat wear style of which are to be subject to Landlord's approval. Tenant may make such ama Employs" as N deems appropriate regarding the purchase and mainte of standard uniforms ngmor, T with shall require its standard unNam to be worn by all Employees at all tun . Handlord Tenant any time, direct Tenant to es while ge on In the Premises. Landlord may, at Premises. require any Employees not so attired to immediately conform to the ^equirernenta or leave the ARTICLE 3: FOOD COURT CAN SUM ii FOOD COURT CAM CHARGE Section 3.01: FOOD COURT CAM SUM. As a tenant of the Food Court Area, Tenant agrees to pay and shall pay to landlord, commernimg on the Font Commencement Date and each and every month and as Additional Rant thereafter throughout the Term. Tenant's share, as hereinafter set forth, of the "Food Court CAM Sum'. The term "Food Cohort CAM Sum" means and shall be all sums incurred in a mariner deemed by Landlord to be reasonable and Center in connection with the appropriate d Co and for the best interests of the Shopping operation and mainterhenca of the Food Court Seating Area (as the same Is reduced, expanded or otherwise altered from lime to time) Including, without limitation, the following: maintaining or repairing any HVAC equipment spectficaNy instaged to serve the Fast FFood S (a) the terse h operating, Insurance specifically retired for the operation of the Fast Food Seating Area (including without imitation, inshra ce against fire and other casualties, bodily injury, personal In' other Insurance required to be carried by Landlord for theFFast tFFood Sedarnage, a ArW (c? liability, t sign intsurance . ir andt/or replacement of interim landscaping, decorating, lighting lighting systems, electrical systems, plumbing systems. HVAC System and any otter systems serving the Fast Food Seating Arcs (d) the cost of trash. rubbish and garbage removal fixtum; (service; t of cost o s?? control; M the dust of maintenance. repair arxyor replacement of furniture and Area, (h) she deist of all all supplies and equipment necessary prop" to dean. operate or maintain Via Fast Food Seating personnel Food Seating co Area Qh standard of cleadiness and st o in a h e rtY to supervise. Implement maintain or operate the Fast required by Landlord specifically for the Fast Food Seating W' ?) lire o n o t any severity person s ahel that may b f the Fast Food Seating Area; (k) the cost of any other ite,T,? or a) wo n of the furniture. factures ar equipment of maintain the Fast Food Seating Area in a fist ekes manner and personnel ?up by d necessary to operate or fflean er percent ((15%) of the total aggregate cost of operating and maintaining the Fast foch in an od"Seaating amount Including, without ation, time things listed herelnebove. Landlord may have heretofore elected to spread, and may hereafter elect to spread, the amount of certain items of the Food Court CAM Sum over such period of years as Landlord shall ine by or term incurred ep periods Instead of Including such amounts ontinsly in the year In which expanded , which in ever* ne ovannual er such amount shag be deemed to be an expe se Incurred during each yew of the amortization period, notwithstanding that such expenses may have been expended or incurred prior to she execution hereof. Section 3.02: FOOD COURT CAM CHARGE. Tenant's share of the Food Court CAM Sum (the 'Food Coat CAM Char"') shag per Year be the product the obtaiPning ises multiplying; thdenominator ?sh? be the total !A of dw Food ? ? a "ice f ? of Court Area tenants oMy). Tenant understands and agrees that cod Court Area (to wfi the tots! CLA of ag Food include the Food Cow CAM Sum and Tenant's to Pie the CAM Sum sett CA in ?a h g in Lease do no! TeneWs Obligation to pay TenanPs CAM Charge as sell in ?? Le Charge shag in rw way redesuce Tenant's Food Court CAM drange lor the first fug anything contained herein to the contrary, Landlord year shag not exceed maximum per square W. Notwithstanding agrees that Tenant S maximurh past d>f its Food Court CAM Charge for the second twelve (12) mordh Year shag not exceed the first such Years snrned preceand dinf except as set forth below, that any subsequent Years payment shag (5.%) not of payme Court CAM Costs preceding Yea to ut7iftecnt roplus stra a pew ? Of such payment. M making the aforesaid calculations, Food limitation for each Year and Tenant shag renovesm. removal and security shall be excluded from the pay its pro rata share of such (terns without limit. Section 3.03: PAYMENT OF FOOD COURT CAM CHARGE. (a) Tenant shall pay to Landlord, as Additional Rent, Tenadnrs Food Court CAM Charge. Tenant shag pay Landlord, on the Rent Commtencement Date and on the first day of each dMlandar month of the Term thersa ter, a rnorxtts estimated by Landlord to be Tenant's monthly Food Court CAM Charge. Landlord may adjust any of said estimates at the end of any Year on the basis of Land Ws experience and reasonably a ed costs. (b) Within ninety (90) days following the and of each Rent Year, Landlord shalt furnish to Tenant a statement covering such Year just expired, certKW as eorretc by an independent public accountant or an authoriaed representative of Landlord, showing the Food Court CAM Sum and the amount of Tenannt's Food Court CAM Charge for such Rent Year D.*\Lcg&WcnWWORD(PREII'dLaseslCapitatC!gACAjusCyfa3rdKfmat).doc 46 EXHIBIT 1 and the payments made by Tenant therefor . respect to such Rent Year. If Tenants aggregate monthly payments therefor with respect to such Rent Year are greater than Tenants share, Tenant hag against monft payments next becoming due to Landlord or, if On Rent Tenn hassexpirreece d, ivebe aNnmediafor eredNtalytheHexcandeessd to Tenant N said payments are less than said share, Tarrant shall pay to Landlord ft diffewo wlfttin 11644Qdrty (30) days of demand by Landlord. (c) After Landlord has furnished its annual statement to Tenant pursuant to S. e0dan 3A3 M hereof, Landlord shall take bleCO! with (pTenant's Food Court CAM Charge for the immediately Preceding Rent Year available for Tener inspection ton recO ving written request from previously paid Landlord the Tenants share of ft FFoodaCo rt CAM sum Tenant to Inspect same prpvided Tenant has (d) Tenant acknowledges and agrees that Tenants Food Court CAM ChwW Tenants CAM Charges but also Tenenrs Utility Charges pursuant to byja of his Lease, is in addition to not only rges pursuant to ?Ck 5 of this Lease and all of the other charges setforay ? or s Lea a C? IN WITNESS WHEREOF, Landlord and Tenant have duly executed this FAST FOOD CLUSTER TENANT EXHIBIT as of even data with the Lease. At T- MAGIC WOK MANAGEMENT, LL T!A CAJUN CAFE GRILL ! BY: -- T]tR: M Attest: ?...,,_ Title: 1 Capital (wily Ma/ ..._...,, .„,,,. .? EXHIBIT 1 PREI T SERVICES, LLC, Agent for pR CApITer CIT..... ITED EXHMFT'D" Cajun Cam & Grill Nu The Tenant has the right to sell Cajun & Caribbean foods for knmediete conaumptlon on or off the premises induct take-out and catering services; and the sale at retail of Cajun & Caribbean pastries, salads, Individu * dispensed drinks Including juices, coffee, tea, milk, chocolate milk, carbonated, beverages and soft drinks. The Menu Includes the fallowing items: M eerrrod Wjtb say two siaq. Qff2kw C aloe Oftwo edsnensaved W16 aayoae aids. amw ifift on*& aavod WA AW two sides. FLsabraw eombm Qw. Spier Barb" Qi* t . Spiro 8wQCw&" Bledomedtildrea . BVdmmw rob VAdw# Elodae Sbrtarp Q"We Fdw Pith C i"alat w adclam C*N Stru a** Pak cqwh*ift CBidoso SM CM4A bftft 9tnmad aawffe6 Dian Mahed ClddMVI'd Raawed bbd t"t S'wM OqMd With a lemon saps aaaoo Amormd Gumbos ArA Spa Sorvod •idr data off" "a" Asa Raisin cmck a BWBNW=dy awls CMM Oast QWM glue ftle a f skw Gw 6a band" Kabobs wltba kuwtlydaav SOW Q+bOtSq&WC 4,we 6wk?wk Ckw lamball" R-*C#mCbiakea Gored Bibs alaaad acts ?? tPapsyaJaf;3+aoe ? 11BQ A11e •Mdodt?aljiadtaeoie ?arbbasedaies P'O'HOY s?arnarr?,. SardwiA lamresaodetOdoes, M" k pw a sad Home *tet %d%dPiapodw O^yPOW Baaboa Qddrat 8aodwi h CNN RaaKpork Sae&" Q kkm Sandwkb wk6 Q* Mast Sww" Root lledsadwki, QeWM d *Dla madeikka aeon ahd=d Reap Cam Tons" Ctdokaa a i" sold R&S" Pass Sdd SIM ORE MSS Rd Besoa a: Ake Airtp Ric% RMM Rion Ydh, me% c4ft Rim M=hwast M1ZaeAW Can Ow low Se"WA Vet Baaaat Pater MdwditwM wf C1iwr MIsw aem f Yams Maearaei MAChem Baked Potato INAS7ns Bbd=d Cbiekw Paris C#M Safow?eata past W VaSayHa Pktlaw/ldtdSwm raaahaab$pa Cboiae('tomaao 41Napcaq Or tpi,raat soreida Bomboa Odd. w„P f6ao C w*w Wjpp aeek=Saladwtp EMM oiaaaAA ai-Ak Can Brad NXIMM MrorkdSofCptids AawW Bolded Drfokt CoRba glad ra 4idyTea Milk A=crwdlataa Fla am Dt " 0:1LegaABrwWaRWpRp%PRER-LeasaslCapiWrAytiCajunCafeGdl(fnal).doc 48 EXHIBIT 1 E All, December 16, 2004 VIA OVERNIGHT :DELIVERY Carolyn M, Vansant Paralegal Tel: (215) 454-1285 Fax: (215) 546-8543 Email: vansantc@preit cGXn Mr. `David Wu Magic Wok Management, LLC 3421 North Lakeview, Suite 168 Tampa, FL 33618 Re: Lease dated August 31; 2004 (said Lease, together with all prior Amendments- thereto, if any, are collectively referred to herein as the "Lease") by and between PR Capital City Limited Partnership ("Landlord") and Magic Wok Management, LLC ("Tenant"), trading as Cajun Cafe Grill, Space #834, Capital City Mall Dear Mr. Wu: As you know, we are managing agent for PR Capital City Limited Partnership, your landlord at the above location. This letter agreement when signed by you and Landlord will amend the Lease as follows: (1) The parties hereto acknowledge and agree- that Tenant will be relocating to the new Food Court Area on or about September 1, 2005. Therefore, the Design Drawings Submission Date for the Relocation Premises shall be June 1, 2005, the Construction Commencement Date for the Relocation Premises shall be 'the date Landlord delivers possession of the-Relocation Premises to Tenant and the Construction Period shall be sixty (60) days. The Required Opening Date of the Relocation Premises shall" be the earlier of (1) sixty (60) days after the date Landlord delivers possession of the Relocation Premises to Tenant, or (ii) the date Tenant opens the Relocation Premises for business with the public. (2) Further, the Relocation Rent Commencement Date shall be changed to be the earlier of: (?) sixty (60) days after the date Landlord delivers possession of the Relocation Premises to Tenant, or (?i) the date Tenant opens the Relocation Premises for business with the public. (3) Landlord and Tenant hereby confirm that the Rent Term as set forth in paragraph (b) of the Fundamental Lease I Provisions shall be one hundred twenty (120) months commencing on the Relocation Rent Commencement Date, The Rent Term expires on the last day of the one hundred twentieth (120th), month' following the Relocation Rent Commencement Date (the "Expiration Date"), PREIT-RUBIN, inc. PENNSYLVANIA REAL ESTATE INVESTMENT TRUST PRELT Services, LLC The Bellewc a 200 South Broad Street ¦ Philadelphia, PA 19102 ¦ Tel: 215-875-0700 ¦ Fax: 215-546-7311 A New York Stock Exchange company. www.preii.com member of: National:Aasociadon of Real E+tste )-extut-1 Truais - International Council of Shopprny-Cenren-• National Multi-tfocsing Council EXHIBIT 1 Mr. David Wu December 16, 2004 Page 2 (4) The Relocation Premises is Tenant Store Number FC-6. Therefore, effective as of the Relocation Rent Commencement Date, the Tenant Store Number shall be FC-6. (6)` Effective as of the Relocation Rent Commencement Date, the GLA of Premises as set forth In paragraph (d) of the Fundamental Lease Provisions shall be 638 square feet". (6) Tenant shall accept the Relocation Premises in the "as- is" condition in which the Premises exist on the date Landlord turns over possession of the Relocation Premises to Tenant or Tenant's designee. Tenant shall perform all work required to be performed by Tenant to fully and completely remodel the Relocation Premises and to adapt the same for Tenant's use, as such use If specified and limited by the Fundamental Lease Provisions, all such work being referred to as "Tenant's Work". Tenant shall design the Relocation Premises in accordance with Landlord's then current store and storefront design criteria booklet and the description of Landlord's Work and Tenant's Work for The Food Court and otherwise comply with all Insurance and other requirements therein (herein called "Store Design Criteria"), a copy of which Tenant acknowledges it has received. (7) Other than as expressly amended hereby, the Lease shall remain unmodified and in full force and effect. Sincerely, CAROLYN M. VANSANT Paralegal lcmv Enclosures cc: B. King K. Snyder J. Walters J. Fallon J. DIMeo [SIGNATURES ON FOLLOWING' PAGE] EXHIBIT 1 I Mr. David Wtj December 16, 2004 Page 3 - The foregoing Is hereby accepted and agreed to this rd day of Nh+ ` , 2004. The foregoing Is hereby accepted and agreed to this '*" day of 20W, MAGIC WOK MANAG ENT, LLC PREIT VICES, LLC, A entfor PR CAPITAL CIT\Y LI E ERSHIP B: Title: t all B Attest: O 0 Title: RESID NT EXHIBIT 1 i%vjU. 4 IW I 1 LLL WA V rctx •tx ? reo b zM 11:20 P. 02 RMICj aEUVERY Novemtrer $, 2005 Mr. David Wu MAGIC WOK MANAGE=MENT. LLC; 3421 N. halosview, suite 168 Temps. FL 33618 RE Lear Agreement dated August 31, '2MK (semi Leave, togWW Wirt all ;Amendments thereto, if any, we c ollectively referred to herein as the "Leavy") by and between PR Capital City Limped Parbucehip ('Landlord') and Ma& Wok Wrageffmt, LLC ("Tenant) grading as Bourbon Street GA. Space #W (the "prw"), Capbj City Matt. Camp Hill. Pa Dear Mr. Wtc As you are aware, Landlord and Tenant executed a Lease whereby. due to Landlord's oonstnx don pnaj .related to the redevetop Twtt of C&1 i4 0 M Map, Tenant Is requked to move to another kxadon (the "Relocation Pna "h*s7) within the Food Cmart Ards, during Me term of the Lease. Pursuaht to Section (b) of the Fundamental Lease p m landlord and Tenw t agreed °ftt Tenant shad be Permitted to dose the Promises in order to relocate ft equipment b the R tion Promises. however, such dosing is permitted to occur no soorw than seven (7) days prior to Tenant opening kw business In the Relocation Premises. Notwithstanding the foregoing, Landlord aW Tenant hereby adwKWedge and agree that due to construction in the area Including and surrounding the Premises kwolvad ln?I C9 the mdevelot Tenant dosW for business on rit ' ,to the Lease, as amended, Tenant shall mopen fbr business In the Relocation Pmnbm upon f earlier of (7 sixdy (00) days vW the date LarKWrd daRmu 'poe n of the Relocation Premises to Tenant or (R) the date Tenant opens kir business In. the Relocation Pmrrdsea Further, upon Tenant openkv for bums in the Rek"Wn Premises as provided herein. Tenant's term WM be extended for one hundred twerq (120) months and Tenant shall commenoo p aft Rent as pr+vvlded In the Lease for the ReiloCatlan Premises. ILC Paw RU91N.1da lumyLYAm REAL ffii' rz vmmnwm 'X'1iL(1S1' IRW tetwkc9, 'ltio 9eM-ap s 2W South SmvA S1caY • M 19102 s Ta 215$79-OM ¦ Pala 21S•546.7311 A gw M 00* KVAEW thOPW + aPW y CMW Of: R-dGFAI MOVAdbM f 9d BMW kVS QM AMN UW aOW" Opmew 0 shows# Cram • Na6awl Y.N:-wM C~K MOIZM 'd am W8i, 900Z/91,/Z© : e EXHIBIT Logged-in Date: .Y Scanned Date`. Ei Cornmiss Date: Abstract Delivered Date: QI?11? Lisa M. Most. Director of Legal & Sr. Real Estate Counsel Tel: (215) 875-0784 Fax: (215) 546-8543 Email: mostl@preit.com VIA OVERNIGHT DELIVERY August 3, 2005 Mr. David Wu Magic Wok Management, LLC 3421 North Lakeview, Suite 168 Tampa, FL 33618 Re: Lease dated August 31, 2004 (said Lease, together with all prior Amendments thereto, if any, are collectively referred to herein as the "Lease") by and between PR Capital City Limited Partnership ("Landlord") and Magic Wok Management, LLC ("Tenant"), trading as Cajun Cafe, Space FC-6, Capital City Mall Dear Mr. Wu: As you know, we are managing agent for PR Capital City Limited Partnership, your landlord at the above location. This letter agreement when signed by you and Landlord will amend the Lease as follows: 1. The parties hereto acknowledge and agree that, effective immediately, Tenant's Trade Name will be "Bourbon Street Grill". 2. Other than as expressly amended hereby, the Lease shall" remain unmodified and in full force and effect. The submission of the above-referenced document shall have no binding force or effect, and shall not confer any rights or impose any obligations upon either party until the execution of such documents by the Landlord and the delivery of an executed duplicate original' thereof` to Tenant or its representative. If this letter accurately memorializes the agreement of the parties hereto regarding this matter, then please sign both copies of this 'letter and 'return one (1) `fully executed copy to me. PREIT-RUBIN, Inc. PENNSYLVANIA REAL ESTATE INVESTMENT TRUST PREIT Services, LLC The Bellevue • 200 South Broad Street e Philadelphia, PA 19102 ¦Tel: 215-875-0700 ¦ Fax: 215-546-7311 A New York Stock Exchange Company - www;pmit.com Member of: National Association of Real Estate lavesiment Trusts -.International Council of Shopping Centers National Multi-Housing Council EXHI BI T 1 Mr. David Wu August 3, 2005 Page 2 If you have any questions regarding any of the. terms of the enclosed document, kindly contact me as promptly as possible. Sincerely, PREIT SERVICES, LLC, Agent for PR CAPITAL CITY LIMITED PARTNERSHIP (--- - k6-A' LISA M. MOST Director of Legal & Sr. Real Estate Counsel LMM/jtf cc: K. Snyder B. King J. DiMeo J. Fallon J. Walters The forego'ng is hereby accep ed and agreed to this day of 2005. MAGIC WOK MA GEM'EN LLC By: Title: Attest:' Title: EXHIBIT 1 SCANNED 2?1v a7 E ASSIGNMENT OF LEASE AND AMENDMENT OF LEASE THIS AGREEMENT, made this day of 6 t x Ar- , 20ClIV, by and between PR CAPITAL CITY LIMITED PARTNERSHIP (hereinafter called "Landlord"), MAGIC WOK MANAGEMENT, LLC (hereinafter called "Assignor") and CHANG-GUANG LIU (hereinafter called "Assignee"). WITNESSETH: WHEREAS, on August 31, 2004, Landlord and Assignor entered into a lease (said lease, together with all prior amendments and agreements thereto, if any, are collectively hereinafter called the "Lease") pursuant to which Landlord let unto Assignor the premises designated as Store No. FC6 located in the Capital City Mall, Camp Hill, Pennsylvania (hereinafter called the "Premises"); and WHEREAS, Assignor desires to assign the Lease to Assignee and Assignee desires to acquire the rights and assume the obligations of Assignor under the Lease retroactively effective on October 1, 2006 (the "Effective Date"); and WHEREAS, Landlord is willing to give its consent to such assignment on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto, each intending to be legally bound hereby, covenant and agree as follows: 1. Assignor hereby assigns to Assignee all ofits right, title and interest in and to the Lease, together with all benefits and advantages to be derived therefrom, said assignment to be effective as of the Effective Date. 2. Assignee, for the direct benefit of Landlord, hereby assumes the timely and true performance of all of the rents, terms, covenants, conditions, and provisions ofthe lease hereby assigned at the time and mannerset forth in the Lease (including without limitation the obligations to pay the Minimum Rent, Percentage Rent and Additional Rent and to use the Premises as more fully set forth in said Lease), all with the same force and effect as if Assignee had executed the Lease EXHIBIT 2 Premises as more fully set forth in said Leje), all with the same force and effect as if Assignee had executed the Lease originally as the tenant named therein. Assignee hereby agrees that the obligations herein assumed by Assignee shall inure jointly to the benefit of Landlord and Assignor. The liability of Assignee under the Lease shall become primary; provided, however, Assignor shall not be released in any respect from its obligation to fully perform all of its covenants under the Lease. Assignor waives notice of all defaults by Assignee under the Lease and agrees that neither the waiver by Landlord of any rights against Assignee under the Lease nor any modifications to the Lease made by Landlord and Assignee without Assignor's consent nor any consents given by Landlord pursuant to the Lease nor any subsequent assignments by Assignee of its interest in the Lease shall in any way modify or release Assignor from any of its obligation to Landlord under the Lease, all of which obligations shall remain as heretofore. Assignor hereby covenants that the Lease is valid and existing according to its terms. From and after the Effective Date, the Assignee herein shall for all purposes be the "Tenant" under the Lease. 3. As set forth in Exhibit E (Fast Food Cluster Tenant Exhibit), Section 2.01, of the Lease, Assignee agrees to sell only those food items specifically enumerated on the Menu (attached as Exhibit D to the Lease). 4. Assignor's Rights Upon Assignee's Default. IfAssignor becomes obligated to fulfill its obligations under the Lease, Assignor shall have the following options, to be exercised by notice to Landlord upon thirty (30) days after Landlord gives notice to Assignor of Assignee's default under the Lease. a) Assignor may elect to assume Tenant's rights, duties and obligations under the Lease (which shall thereupon be deemed to remain in force with Assignor as Tenant); b) Assignor may elect, with Landlord's consent, which consent shall not be unreasonably withheld, to assign this Lease and/or sublet the Premises to an assignee or subtenant designated by Assignor, under the same terms and conditions as contained in the Lease; c) Assignor may elect to wake payment to Landlord of the total sum due under the Lease. However, in such circumstance, Assignor covenants and agrees that throughout the Rent Term (as defined in the Lease), Assignor shall continuously use and operate all of the Premises for the use set forth in the Lease and under Tenant's Trade Name. -2- EXHZ BI T, 2 A Assignor's election of any of the above options shall not release Tenant (Assignee) from liability for the performance of all conditions, obligations and agreements of Tenant under the Lease. 5. Landlord's consent to this Assignment and Amendment of Lease is contingent upon Assignor executing a Settlement Agreement and Release which addresses repayment to Landlord of all the monetary obligations due under the Lease up to and including September 30, 2006. 6. For purposes of computation of the Percentage Rent due under the Lease, Assignee shall be deemed to have a first lease year commencing on the Effective Date and ending on the last day of the current year. 7. Landlord hereby consents to the assignment of the Lease by Assignor to Assignee, and hereby agrees that hereafter all notices to be sent to Assignee, as Tenant under the Lease, shall be sent to: Chang-Guang Liu 2000 Longshore Avenue Philadelphia PA 19149 8. From and after the Effective Date the provisions of the Lease set forth below shall be amended as follows: (a) Attached hereto as "Exhibit F" is a Guaranty of Lease executed by Chang-Luang Liu ("Guarantor"). Assignee acknowledges that Landlord would not have executed this Assignment and Amendment of Lease with Assignee unless Guarantor agreed to execute the Guaranty. Landlord and Assignee further 'agree that in the event Landlord, in its reasonable judgment, determines that the credit worthiness, economic strength or financial status of Guarantor falls below a level which Landlord then finds acceptable, or if Guarantor breaches or otherwise repudiates its obligations tinder Exhibit "F," or if Guarantor is an individual, and Guarantor dies, or becomes incompetent, or any banltrptcy or similar procedure is filed by or against Guarantor and not dismissed within sixty (60) days thereafter, then Landlord may, at anytime ;and upon prior written demand to Assignee, require Assignee within thirty (30) days thcrtafter to deliver to Landlord alternative or additional security in a form and substance reasonably' satisfactory to Landlord, so that Landlord will not be deprived of adequate assurance of Assignee's financial ability to comply with its obligations imposed by the Lease. In the event Assignee fails to timely 3- EXHIBIT 2 submit such alternative security in form' and substance satisfactory to Landlord, such failure shall be deemed an Event of Default. 9. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, administrators, executors, successors and assigns. Except as specifically amended hereby, all of the other terms, conditions and covenants contained in the Lease and all other terms whether or not deemed personal covenants shall continue in full force and effect and are hereby ratified and republished: IN WITNESS WHEREOF, the parties have caused this agreement to be executed the stay and year first above written. LANDLORD: PREIT SERVICES, LLC, Agent for PR CAPITAL CITY LEUITED PARTNE Jos F. CORADINO P ENT ASSIGNOR: MAGIC WOK MANAGEMENT, LLC By WITNUSS ,. , Tale: mem 1)"t- ASSIGNEE: By; { CHAN -GUAN LIU SSN # n SS- z- 6?r 77 _4_ .. EXHIBIT 2 DO 00 -69- J V D r, C? 1„'J {tii 3L_ l O t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. CIVIL DIVISION No. 07-5757 AFFIDAVIT OF SERVICE OF COMPLAINT Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow PA ID No. 43523 Moira Cain-Mannix PA ID No. 81131 MARCUS & SHAPIRA LLP Firm No. 145 One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, NO. 07-5757 Plaintiff, V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. Civil Action - Law AFFIDAVIT OF SERVICE OF COMPLAINT I, Moira Cain-Mannix, being duly sworn according to law, hereby certify that: 1. I served upon Defendant, Magic Wok Management, LLC, a certified true and correct copy of the Complaint in the within action by Certified United States Mail, Return Receipt Requested, postage prepaid, the 9th day of October, 2007; and 2. Attached hereto as Exhibit A is the original certified return receipt issued by the United States Post Office providing proof of service of the Complaint on Magic Wok Management, LLC, on October 9, 2007. Moira Cain-Mannix (Pa. ID No. 81131) Marcus & Shapira LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219-6401 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership Sworn to and subsc 'bed before me this day of October, 2007. Notary Public COMMONWEALTH OF PENNSYLVANIA y Comrais9iireS. Karen Ann Littman, otary Public (2f OF Pftburgh, Aue9h" County My &M- m lion Expires 222!:_29,2009 Member, Pennsylvania Association of Notaries ¦ Complete Items 1, 2, and 3. Also complete A. Item 4 If Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece or on the front If space permits. 1. Article Addressed to. Magic Wok Management, LLC Attention: Mr. David Wu 3421 North Lakeview Drive, Suite 168 Tampa, FL 33618 O Agent O Addre by t? Nerve) C. Dat//e of a b delkwy addrae di ferent from item 1? O Yes If YES, enter demmy address below. O No Md O Registered (jZaWn- Receipt for Marc) O insured mail O C.O.D. 4. Restricted Delivery? (Extra Fee) O Yes 2. Article Number 7aa6 a1oQ ODoa 6663 1561 (rWWW fYorn sanics Aeb iJ PS Form 3811, February 2()04 Domestic Retum Receipt 14540 EXHIBIT A CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Affidavit of Service of Complaint was served upon the Defendant listed below by United States Mail, first class service, postage prepaid, this 17th day of October, 2007: Magic Wok Management, LLC Attention: Mr. David Wu 3421 North Lakeview Drive, Suite 168 Tampa, FL 33618 Cynthia R. Sarsen, Esq. Cynthia R. Sarsen, P.A. 1535 North Dale Mabry Highway Suite 102 Lutz, Florida 33548 Moira Cain- annix + --i v a ? L ` "C1 ? ? . .....E W" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP . CIVIL DIVISION V. NO. 07-5757 MAGIC WOK MANAGEMENT, LLC t/a BOURBON STREET GRILL ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly file my Entry of Appearance on behalf of Defendant Magic Wok Management, LLC in the above captioned matter. Dated: November 13, 2007 GOLDBERG SEGALLA LLP Attorneys for Defendant MAGIC WOK MANAGEMENT, LLC By: C L ?. C., - He . oye, Esq. I.D. 82495 1700 Market Street Suite 1418 } Philadelphia, Pennsylvania 19103 (267) 519-6800 CERTIFICATE OF SERVICE I, Henry J. Noye, hereby certify that on this 13th day of November, 2007, I served a true and correct copy of my Entry of Appearance in the above matter upon the below counsel of record via U.S. Postal, Service: Moira Cain-Mannix, Esquire MARCUS & SHAPIRA LLP One Oxford Centre 35th Floor 301 Grant Street Pittsburgh, Pennsylvania 15219 By: I V Henr - oye ? h? F-." , ? ? N ? ? . ? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP V. CIVIL DIVISION NO. 07-5757 MAGIC WOK MANAGEMENT, LLC t/a BOURBON STREET GRILL DEFENDANT MAGIC WOK MANAGEMENT, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ACTION FOR RENT Defendant, MAGIC WOK MANAGEMENT, LLC sued as MAGIC WOK MANAGEMENT, LLC t/a BOURBON STREET GRILL, by its attorneys, GOLDBERG SEGALLA LLP, for its Answer to the complaint of the plaintiff, states as follows: 1. Denies knowledge or information sufficient to form a belief with respect to the allegations of paragraph 1 of the Complaint. 2. With respect to the allegations of paragraph 2 of the Complaint, admits that it is a Florida limited liability company but denies knowledge or information sufficient of form a belief with respect to the remaining allegations of the paragraph. 3. Admits the allegations of paragraph 3 of the Complaint. 4. Admit the allegations of paragraph 4 of the Complaint. 5. With respect to the allegations of paragraph 5 of the Complaint, defendant states that the terms of the Lease and Assignment speak for themselves and denies the remaining allegations of the paragraph. 6. Denies knowledge or information sufficient to form a belief with respect to the remaining allegations of paragraph 6 of the Complaint. 7. Denies the allegations of paragraph 7 of the Complaint. 8. Denies the allegations of paragraph 8 of the Complaint. 9. Denies knowledge or information sufficient to form a belief with respect to the allegations of paragraph 9 of the Complaint and further states that no copies of the notices referenced in that paragraph were attached to the Complaint. 10. Denies the allegations of paragraph 10 of the Complaint. 11. With respect to the allegations of paragraph 11 of the Complaint, admits those allegations that were previously admitted, denies those allegations that were previously denied, and denies knowledge or information sufficient to form a belief with respect to those allegations as are elsewhere herein similarly treated. 12. Admits the allegations of paragraph 12 of the Complaint. 13. Denies the allegations of paragraph 13 of the Complaint. 14. Denies the allegations of paragraph 14 of the Complaint. 15. Denies knowledge or information sufficient to forma belief with respect to paragraph 15 of the Complaint. 16. Denies the allegations of paragraph 16 of the Complaint. 17. Denies the allegations of paragraph 17 of the Complaint. 18. Denies the allegations of paragraph 18 of the Complaint. 19. Denies the allegations of paragraph 19 of the Complaint. 20. Denies each and every other allegation of the Complaint not previously admitted or denied. WHEREFORE, defendant demands judgment in its favor as follows: 1. Dismissing the Complaint; 2. For the costs and disbursements of this action; 3. For such other and further relief as to the Court may seem just and proper. NEW MATTER 21. Plaintiff's Complaint fails to state a claim for which relief may be granted. 22. Plaintiff failed to mitigate its damages. 23. Plaintiff s damages were caused by a person or persons over whom this defendant exercised no control. WHEREFORE, defendant demands judgment in its favor as follows: 1. Dismissing the Complaint; 2. For the costs and disbursements of this action; 3. For such other and further relief as to the Court may seem just and proper. Dated: November 13, 2007 GOLDBERG SEGALLA LLP Attorneys for Defendant MAGIC WOK MANAGEMENT, LLC By: I? Henr? oye, E q. I.D. 82495 1700 Market Street Suite 1418 Philadelphia, Pennsylvania 19103 (267) 519-6800 VERIFICATION I Henry J. Noye, hereby state that I am the attorney for Defendant, MAGIC WOK MANAGEMENT, LLC sued as Magic Wok Management, LLC t/a Bourbon Street Grill in the present litigation and verify that the statements made in the foregoing Answer are true and correct to the best of my knowledge, information and belief, and I understand that the statements in the foregoing pleading are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. 1\? - HEN . NOY CERTIFICATE OF SERVICE I, Henry J. Noye, hereby certify that on this 13`h day of November, 2007, I served a true and correct copy of Defendant Magic Wok Management's Answer to Plaintiff s Complaint upon the below counsel of record via U.S. Postal, Service: Moira Cain-Mannix, Esquire MARCUS & SHAPIRA LLP One Oxford Centre 35`h Floor 301 Grant Street Pittsburgh, Pennsylvania 15219 By: ? ?m \, 1c - He oye r = C,,? v? -?' ^T! `cz ? ?? ? K .? i r ..?- ???r ?,?? ? ? ?? ; ? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, ) CIVIL DIVISION Plaintiff, ) No. 07-5757 V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. REPLY TO NEW MATTER Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow PA ID No. 43523 Moira Cain-Mannix PA ID No. 81131 MARCUS & SHAPIRA LLP Firm No. 145 One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, NO. Plaintiff, v. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. Civil Action - Law REPLY TO DEFENDANT'S NEW MATTER Plaintiff, PR Capital City Limited Partnership, by its undersigned counsel, files the following Reply to New Matter as follows: REPLY TO NEW MATTER 1. The averments in Paragraph I of Defendant's New Matter contain conclusions of law to which no response is required. To the extent a response is deemed to be required, the averments are denied. 2. The averments in Paragraph 2 of Defendant's New Matter are denied. Commercial landlords in Pennsylvania are not required to mitigate damages. In any event, Plaintiff is making good faith efforts to mitigate damages. 3. The averments in Paragraph 3 of Defendant's New Matter contain conclusions of law to which no response is required. To the extent a response is deemed to be required, the averments are denied. WHEREFORE, Plaintiff, PR Capital City Limited Partnership, demands a judgment against Defendant, Magic Wok Management, LLC, t/a Bourbon Street Grill, in the amount of $568,144.49, and any additional damages which may accrue through the time of trial, plus interest, costs and any other relief the Court deems appropriate. Respectfully submitted, r Dated: December , 2007 Stephen S. Zubrow Moira Cain-Mannix MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership 2 Magic Wok UNSWORN VERIFICATION UNDER 18 PA. C.S. 4 4904 The undersigned hereby states subject to the penalties of 18 Pa. C.S. § 4904 regarding unsworn falsification to authorities as follows: I am a duly authorized representative of the Plaintiff identified in the attached Reply to New Matter and that averments of fact contained in such Reply to New Matter are true and correct to the best of my knowledge, information and belief. Dated: i:)eC_ [ 4 , 2007 By: 1 v? Debra Lambert Vice President - Legal PREIT SERVICES, LLC Agent for PR CAPITAL CITY LIMITED PARTNERSHIP Y ' CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Reply to New Matter was forwarded by first class, United States mail, postage prepaid, to the parties listed below this 4 day of December, 2007: Henry J. Noye, Esquire Goldberg Segalla LLP 1700 Market Street, Suite 1418 Philadelphia, PA 19103 Moira Cain-Mannix GR 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP . V. CIVIL DIVISION NO. 07-5757 MAGIC WOK MANAGEMENT, LLC t/a BOURBON STREET GRILL : WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly file my Withdrawal of Appearance on behalf of Defendant Magic Wok Management, LLC in the above captioned matter. Dated: January 9, 2008 GOLDBERG SEGALLA LLP Attorneys for Defendant MAGIC WOK MANAGEMENT, LLC By: • I _ Henry ye, Esq. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly file my Entry of Appearance on behalf of Defendant Magic Wok Management, LLC in the above captioned matter. Dated: January 9, 2008 GOLDBERG SEGALLA LLP Attorneys for Defendant MAGIC WOK MANAGEMENT, LLC By: kaa / Michael D. Brophy, q. I.D. 23192 1700 Market Street Suite 1418 Philadelphia, Pennsylvania 19103 (267) 519-6800 CERTIFICATE OF SERVICE I, Henry J. Noye, hereby certify that on this 9th day of January, 2008, I served a true and correct copy of the Withdrawal/Entry of Appearance in the above matter upon the below counsel of record via U.S. Postal, Service: Moira Cain-Mannix, Esquire MARCUS & SHAPIRA LLP One Oxford Centre 35th Floor 301 Grant Street Pittsburgh, Pennsylvania 15219 By: I L - \1 - Henr? . oye C, c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, CIVIL DIVISION No. 07-5757 Plaintiff V. MOTION FOR SUMMARY JUDGMENT MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow PA ID No. 43523 zubrow@marcus-shapira.com Moira Cain-Mannix PA ID No. 81131 cain-mannix@marcus-shapira.com MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED CIVIL DIVISION PARTNERSHIP, No. 07-5757 Plaintiff V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. MOTION FOR SUMMARY JUDGMENT Plaintiff, PR Capital City Limited Partnership ("PR Capital City" or "Landlord"), hereby moves, pursuant to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, for summary judgment and alleges as follows: 1. On or about October 2, 2007, PR Capital City, as Landlord, filed a one-count breach of lease complaint in this action against Defendant Magic Wok Management, LLC ("Magic Wok"), due to Magic Wok's failure to pay rent and other charges which were due under the terms of the parties' Lease since November of 2006, as well as its failure to keep the premises continually open in violation of the Lease. (Compl., ¶¶ 7-8, 13-14). 2. Magic Wok has failed to cure its defaults under the Lease as it has failed to pay rent and other charges which remain due under the terms of the Lease. Its defaults have been mitigated in part due to Landlord's placement of another tenant (Saladworks) in Magic Wok's former space. However, Landlord's damages through the term of the Lease, when taking into account the Saladworks mitigation, and including accelerated rent through the balance of the term and attorneys' fees, litigation expenses, and costs, amount to $240,071.10. As there are no material facts in dispute, summary judgment is appropriate, as will be explained further below. FACTS The Lease 4. On or about August 31, 2004, PR Capital City and Magic Wok entered into a Lease Agreement (as amended by letter agreements dated December 16, 2004, August 3, 2005, and November 9, 2005) ("Lease") for premises located at the Capital City Mall in Camp Hill, Cumberland County, Pennsylvania. A true and correct copy of the Lease and letter agreements amending the same are attached to the Complaint as Exhibit 1, and are also attached hereto at Exhibit B-1. The authenticity of these documents is not in dispute, having been authenticated by Magic Wok's Answers to Landlord's Request for Admissions (Answer of Defendant Magic Wok, LLC t/a Bourbon Street Grill to Plaintiffs Request for Admissions, ¶¶ 1-2, attached hereto as Exhibit A), as well as by deposition testimony from Donald Smith, mall manager for the Capital City Mall (D. Smith Dep., pp. 7-8 and Ex. 1 thereto, attached hereto as Exhibit B). The Assignment of the Lease 5. As of October 1, 2006, Magic Wok and PR Capital City, as Landlord, assigned the Lease to Chang-Guang Liu ("Assignee"), pursuant to an Assignment of Lease and Amendment of Lease ("Assignment"). A true and correct copy of the Assignment is attached to the Complaint as Exhibit 2 and is also attached hereto as Exhibit B-2. This document has also been authenticated via Magic Wok's answers to Landlord's Request for Admissions (Ex. 2, ¶ 3) and the deposition testimony of Mr. Smith (Ex. B, D. Smith Dep., pp. 8-9 and Ex. 2 thereto).' 5. Pursuant to the Assignment, Magic Wok remains liable under the Lease. The Assignment provides, in relevant part, that: The liability of Assignee under the Lease shall become primary; provided, however, Assignor shall not be released in any respect from its obligation to fully perform all of its covenants under the Lease. Assignor waives notice of all defaults by Assignee under the Lease and agrees that neither the waiver by Landlord of any rights against Assignee under the Lease nor any modifications to 2 the Lease made by Landlord and Assignee without Assignor's consent nor any consents given by Landlord pursuant to the Lease nor any subsequent assignments by Assignee of its interest in the Lease shall in any way modify or release Assignor from any of its obligation to Landlord under the Lease, all of which obligations shall remain as heretofore.... Assignor hereby covenants that the Lease is valid and existing according to its terms. (Ex. B-2, ¶ 2). The Assignee's and Manic Wok's Defaults Under the Lease and the Assignment 6. The Assignee subsequently defaulted under the Lease by failing to make payment of rent and other charges which were due from approximately November of 2006 forward. (Ex. A, 15; Deposition of Justo Vega, mall bookkeeper, attached hereto as Exhibit C, pp. 6-8). On April 30, 2007, the Assignee vacated the premises. (Ex. A, ¶ 6; Ex. B, D. Smith Dep., pp. 8- 9; Ex. C, J. Vega Dep., p. 7). 7. Magic Wok has defaulted under the Lease by failing to pay the rent and other charges which have become due since November of 2006. This fact is not in dispute as Magic Wok has admitted, via its answers to Landlord's request for admissions, that it has not paid rent since October of 2006. (Ex. A, ¶ 8). This fact is further established by the deposition testimony in this case. (Ex. B, D. Smith Dep., 10:3-7; Ex. C, J. Vega Dep., 7:16-25, 12:25-13:4). 8. Magic Wok has further defaulted under the Lease by failing to keep the premises continually open in violation of Section 7.02 of the Lease. As noted in paragraph 6 above, Magic Wok has admitted that the Assignee abandoned the premises as of April 30, 2007, and as will be explained further below, Saladworks did not take over the space until December 1, 2007. The space remained vacant in default of the Lease for seven months. The Re-Lease of the Premises to Saladworks in Mitigation of Landlord's Damages 9. Seven months after the Assignee's abandonment of the premises, the Landlord leased the former Magic Wok space to a new tenant, Saladworks. The Saladworks Lease became effective, and Saladworks began occupying the premises, as of December 1, 2007. (Ex. C, J. Vega Dep., 8:1-7). 10. However, Saladworks' rental rate is lower than the rental rate under the Magic Wok Lease. (Ex. B, D. Smith Dep., 9:17-24). Landlord Provided Magic Wok with Notice of its Defaults 11. PR Capital City has notified Magic Wok of its defaults via, among other notices, a letter from its counsel dated May 3, 2007. A true and correct copy of counsel's letter is attached hereto as Exhibit D. 12. Magic Wok failed to cure the above defaults under the Lease. Landlord is Entitled to Accelerated Rent 13. Due to Magic Wok's default of the Lease, PR Capital City is entitled to accelerated rent through the balance of the term of the Lease. The Lease provides, in relevant part, as follows: (a) Landlord may treat any Event of Default as a material breach of this Lease.... In addition to any and all other rights and remedies if there shall occur any Event of Default none of which shall be construed as an election to forego any of the other remedies then or in the future: (i) accelerate the whole balance of Rent, and all other sums payable hereunder by Tenant, for the entire balance of the Term, or any part of such Rent and other sums[.] (Ex. B-1, Section 16.02). Landlord is Entitled to its Attorneys' Fees 14. Magic Wok is also liable for PR Capital City's attorneys' fees and costs in connection with this action pursuant to Section 16.05 of the Lease, which provides in relevant part as follows: In the event that Landlord should retain counsel and/or institute any suit against Tenant for violation of or to enforce any of the 4 covenants of conditions of this Lease, ... or should either party institute a suit against the other for a declaration of rights hereunder, ... the prevailing party in any such suit shall be entitled to all its costs, expenses and reasonable fees to its attorney(s) in connection therewith. (Ex. B-1, Section 16.05). Calculation of Damages 15. Landlord's rental damages, which include past due and future rent and other charges due under the Lease, minus the Saladworks mitigation, are $231,192.34. (Ex. C, J. Vega Dep., pp. 8-13 and Exhibit 1 thereto). 16. To date, PR Capital City has incurred reasonable attorneys' fees and litigation expenses (copying charges, telephone charges, postal charges, and deposition transcripts) in this matter in the amount of $8,800.26. (Affidavit of Stephen S. Zubrow, Esq., attached hereto as Exhibit E). 17. PR Capital City has incurred record costs in the amount of $78.50 which consist of the filing fee for the Complaint in this action. 18. Landlord's total damages, including past due and future rent, minus mitigation, plus attorneys' fees, litigation expenses, and costs, are $240,071.10. SUMMARY JUDGMENT IS APPROPRIATE AS THERE ARE NO FACTS IN DISPUTE 19. Summary judgment must be granted "wherever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense." Pa. R.C.P. 1035.2; see also Murphy v. Duquesne Univ., 777 A.2d 418, 429 (Pa. 2001). 20. A party opposing summary judgment "must show by specific facts in their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial." Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991). 21. Where, as here, "the motion for summary judgment has been properly supported, the burden is on the non-movant to disclose evidence that is the basis for his or her argument resisting summary judgment." Samaron v. GAF Corp., 541 A.2d 398, 402 (Pa. Super. Ct. 1989). 22. "Failure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict in its favor establishes the entitlement of the moving party to judgment as a matter of law." Young v. Commonwealth of Pa. Dept. of Transp., 744 A.2d 1276, 1277 (Pa. 2000) (citation omitted). 23. As there are no facts in dispute, and in fact many of the material facts have been admitted by the Defendant, summary judgment is appropriate. 24. PR Capital City requests that judgment be entered in its favor in the amount of $240,071.10, which includes all past due and future rent, minus mitigation, plus attorneys' fees, litigation expenses, and record costs incurred in the pursuit of this action. WHEREFORE, Plaintiff, PR Capital City Limited Partnership, requests that this Court grant its Motion for Summary Judgment, and enter judgment in its favor in the amount of $240,071.10. Respectfully submitted, Stephen S. Zubrow (PAID No. 43523) Moira Cain-Mannix (PA ID No. 81131) MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor, 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership 6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, CIVIL DIVISION No. 07-5757 Plaintiff V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. ORDER OF COURT AND NOW, this day of 2009, after consideration of Plaintiffs Motion for Summary Judgment and the parties' submissions in connection therewith, IT IS HEREBY ORDERED that the Motion is GRANTED. Judgment is entered in favor of Plaintiff and against Defendant Magic Wok Management, LLC, in the amount of $240,071.10. BY THE COURT: J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP CIVIL DIVISION V. NO. 07-5757 MAGIC WOK MANAGEMENT, LLC t/a BOURBON STREET GRILL ANSWERS OF DEFENDANT, MAGIC WOK MANAGEMENT, LLC. T/A BOURBON STREET GRILL TO PLAINTIFF'S REQUEST FOR ADMISSIONS Defendant, Magic Wok Management, LLC, hereby submits the following responses to Plaintiffs Requests for Admissions, and a true and correct copy of which is attached as Exhibit A. Defendant responds as follows: I. Admitted. 2. Admitted that certain Agreements were entered into between the parties, but Denied that the Lease Agreements constitute the entirety of such Agreements. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted upon information and belief, only. 7. Denied, as the correspondence in question was not attached to Plaintiff's Requests for Admissions. 8. Admitted. 9. Admitted. GOLDBERG SEGALLA LLP Dated: June 6, 2008 By: Michael D. Brophy Attorneys for Defendant MAGIC WOK MANAGEMENT, LLC t/a Bourborn Street Grill CERTIFICATE OF SERVICE I, Michael D. Brophy, hereby certify that on this 6 h day of June, 2008,1 served a true and correct copy of Defendant's Answers to Plaintiff s Request for Admissions in the above matter upon the below counsel of record via facsimile and U.S. Postal Service: Patricia Wozniak Henk, Esquire MARCUS & SHAPIRA LLP One Oxford Centre 35t` Floor 301 Grant Street Pittsburgh, Permsylvania 15219 By: D.? Michael D. Bro y EXHIBIT A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED } CIVIL DIVISION PARTNERSHIP, ) No. 07-5757 Plaintiff ) } V. ) PLAINTIFF'S REQUEST FOR ADMISSIONS MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow PA ID No. 43523 zubrow@marcus-shapira.com Moira Cain-Mannix PA ID No. 81131 cain-mannix@marcus-shapira..com Patricia Wozniak Henk PA ID No. 45739 henk@marcus-shapira.com MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 REQUEST FOR ADMISSIONS Plaintiff, PR Capital City Limited Partnership ("Capital City Mall"), by its counsel, Marcus & Shapira LLP, pursuant to Rule 4014 of the Pennsylvania Rules of Civil Procedure, files this Request for Admissions and requests that Defendant answer within thirty (30) days of the date of service: Request for Admissions 1. Please admit or deny that on August 31, 2004,1? Capital City Limited Partnership, as Landlord and Magic Wok Management, LLC, trading as Cajun Caf6 Grill, as Tenant entered into the Lease Agreement, attached to the Complaint as Exhibit 1. ANSWER: ADMIT: DENY: 2. Please admit or deny that on December 16, 2004, August 3, 2005 and November 9, 2005, Lease Agreements were entered into between Plaintiff and Defendant, attached to the Complaint as Exhibit 1. ANSWER: ADMIT: DENY: 3. Please admit or deny that on February 15, 2007 Magic Wok Management, LLC . and PR Capital City Limited Partnership, assigned the August 31, 2004 Lease to Chang-Luang Liu, pursuant to an Assignment of Lease and Amendment of Lease, attached to the Complaint as Exhibit 2. ANSWER: ADMIT: DENY: 4. Please admit or deny that the February 15, 2007 Assignment of Lease and Amendment of Lease, between PR Capital City Limited Partnership, as Landlord, Magic Wok Management, LLC, as Assignor, and Chang-Guang Liu, as Assignee provided that the effective date of the Assignment was October 1, 2006. ANSWER: ADMIT: DENY: 5. Please admit or deny that Assignee Chang-Guang Liu failed to make payment of rent and other charges which were due from approximately November of 2006 forward. ANSWER: ADMIT: DENY: 6. Please admit or deny that on April 30, 2007 Assignee, Chang-Guang Liu, vacated the premises located in the Capital City Mall. ANSWER: ADMIT: DENY: 7. Please admit or deny that Magic Wok Management, LLC received correspondence dated May 3, 2007 from Moira Cain-1vMannix, counsel for PR Capital City Limited Partnership, Landlord. ANSWER: ADMIT: DENY: 2 S. Please admit or deny that the last time Defendant and/or its Assignees paid the minimum rent to Plaintiff was in October, 2006. ANSWER: ADMIT: DENY: 9. Please admit or deny that after Assignee vacated the premises located in Capital City Mall on April 30, 2007, Defendant did not re-enter and operate the restaurant. ANSWER: ADMIT: DENY: MARCUS & SHAPIRA LLP By v V Stephen . ub ow Moira Cain-Mannix Patricia Wozniak Henk 35th Floor, One Oxford Centre 301 Grant Street Pittsburgh, PA 15219-6401 (412) 471-3490 Attorney for Plaintiff, PR Capital City Limited Partnership 3 CERTIFICATE OF SERVICE The undersigned hereby certifies that an original of the foregoing Plaintiffs First Request for Admissions Directed to Defendant was served upon counsel of record listed below by United States mail, first class service, postage prepaid, this 9th day of April, 2008: Michael D. Brophy, Esquire 1700 Market Street Suite 1418 Philadelphia, PA 19103 Patri 'a ozniak Henk Deposition of Donald Smith Distinct Deposition Services 412.308.6071 Page: 1 Deposition of Donald Smith 1 APPEARANCES VIA TELEPHONE: 2 MOIRA CAIN-MANNIX, ESQUIRE Marcus & Shapira, LLP 3 One Oxford Centre, 35th Floor 301 Grant Street 4 Pittsburgh, PA 15219 For - The Plaintiff 5 MICHAEL D. BROPHY, ESQUIRE 6 Goldberg Segalla, LLP 1700 Market Street, Suite 1418 7 Philadelphia, PA 19103 For - The Defendant 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Distinct Deposition Services 412.308.6071 Page: 2 Deposition of Donald Smith 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WITNESS Donald Smith By Ms. Cain-Mannix By Mr. Brophy INDEX TO WITNESSES EXAMINATION 5 10 Distinct Deposition Services 412.308.6071 Page: 3 Deposition of Donald Smith Distinct Deposition Services 412.308.6071 Page: 4 Deposition of Donald Smith 1 Q Do you maintain lease files in your office at 2 Capital City Mall? 3 A Yes, we do. 4 Q Are you familiar with a former tenant by the name of 5 Magic Wok? 6 A Correct. Yes. 7 Q And Magic Wok is a defendant in this case, correct? 8 A Yes. 9 Q Okay. Do you maintain a file for Magic Wok? 10 A We do. 11 Q And did they trade under another name? 12 A Their trade name was Bourbon Street Grill, yes. 13 Q Okay. And what were their dates of occupancy? 14 A Their opening date was December of 2005, and they 15 closed April 30th of 2007. 16 Q Okay. And when you say they closed on April 30, 17 2007, was that Magic Wok or another operator? 18 A That was Bourbon Street Grill. 19 Q Okay. We'll clarify that later. 20 A Okay. 21 Q Now, I understand you have with you there the lease 22 for Magic Wok. 23 A I do. 24 Q Could you hand that to the court reporter to mark as 251 Exhibit 1 to your deposition? And Michael has been provided Distinct Deposition Services 412.308.6071 Page: 7 Deposition of Donald Smith 1 a copy of the lease, as well. 2 MR. BROPHY: I confirm that. 3 (Smith Deposition Exhibit Number 1 marked.) 4 THE WITNESS: Okay. 5 BY MS. CAIN-MANNIX: 6 Q Don, is Exhibit 1 a true and accurate copy of the 7 lease between -- let me start over. Why don't you identify 8 what it is first? 9 A Exhibit 1 is the lease agreement between PR Capital 10 City -- or Capital City Limited Partnership, as landlord, and 11 Magic Wok Management, LLC. 12 Q And that's a true and accurate copy of the lease? 13 A That is. 14 Q Okay. At some point, was this lease assigned? 15 A Yes, it was. And I have a copy of the assignment. 16 And the assignment is dated for February 15th of 2007. And 17 it was assigned -- I apologize for the pronunciation of the 18 assigne e -- Chang-Guang Liu. 19 Q Okay. 20 A Trading name is Bourbon Street Grill. 21 Q Okay. Could you hand a copy of the assignment to 22 the cou rt reporter to mark as Exhibit 2 to your deposition? 23 (Smith Deposition Exhibit Number 2 marked.) 24 1 BY MS. CAIN-MANNIX: 251 Q Is Exhibit 2 a true and accurate copy of the Distinct Deposition Services 412.308.6071 Page: 8 Deposition of Donald Smith 11 assignment? 2 A It is. 3 Q And is magic Wok -- is it Magic Wok Management, LLC, 4 that's their full name, correct? 5 A Yes, it is. 6 Q And they're a party to the assignment, as well; is 7 that correct? 8 A That is correct, yes. 9 Q Did Mr. Liu occupy the premises? 10 A Yes, he did. 11 Q Did he trade as Bourbon Street Grill? 12 A Yes. 13 Q Do you have his dates of occupancy? 14 A I have the -- I do have the assignment dated of 15 February 15th and I have the closing notice of April 30th. 16 So that was the time frame. 17 Q Okay. Is the space presently occupied? 18 A Yes, it is. 19 Q By whom? 20 A Saladworks. 21 Q Okay. Are you familiar with the rental rate under 22 the Sala dworks' lease? 23 A Not the true specifics, but I know that Saladworks' 24 base ren t is less than Magic Wok. 25 Q Okay. Do you know whether the term of their lease Distinct Deposition Services 412.308.6071 Page: 9 Deposition of Donald Smith 11 runs through the term of the Magic Wok lease? 2 A I believe it does, yes. 3 Q Okay. Is it your understanding, just in the general 4 sense, without getting into the specific numbers, that Magic 5 Wok and Mr. Liu have failed to pay rent which is due and 6 owing under the terms of both the lease and the assignment? 7 A That is correct, yes. 8 MS. CAIN-MANNIX: I have no further questions. 9 MR. BROPHY: I think that's the shortest deposition 10 I was ever a part of. 11 EXAMINATION 12 BY MR. BROPHY: 13 Q Mr. Smith? 14 A Yes. 15 Q This is Mike Brophy. I represent Magic Wok. 16 A Yes. 17 Q Can you hear me all right? 18 A Yes, I can. 19 Q I have, I think, just one question for you -- 20 actually, a couple questions. 21 First of all, with respect to Exhibit 2, which is 22 the assignment of the lease -- 23 A Yes. 24 Q -- and I know this is a legal document which we say 251 speaks for itself, but am I correct in understanding that the Distinct Deposition Services 412.308.6071 Page: 10 1?--i ? * SCANNED LEASE AGREEMENT BY AND BETWEEN PR CAPITAL CITY LIMITED PARTNERSHIP, as Landlord and MAGIC WOK MANAGEMENT, LLC, as Tenant TRADE NAME: CAJUN CAFE GRILL D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafet kill(fuW).doc DEpOSMON EXHIBIT FUNDAMENTAL. LEASE PROVISIONS This Lease is executed and made as of P JS5 2004, by and between PR CAPITAL CITY LIMITED PARTNERSHIP, a Pennsylvania limited paKnership (herein called "Landlord") and MAGIC WOK MANAGEMENT, LLC, a Florida limited liability company (herein called "Tenant"), Landlord and Tenant having the following notice addresses: Landlord: PR CAPITAL CITY LIMITED PARTNERSHIP C/o PREIT Services, LLC 200 South Broad Street The Bellevue, Third Floor Philadelphia, PA 19102 Attn: General Counsel Tenant: MAGIC WOK MANAGEMENT, LLC 3421 North Lakeview, Suite 168 Tampa, FL 33618 Copy to: PR CAPITAL CITY LIMITED PARTNERSHIP Management Office 3506 Capital City Mall Drive Camp Hill, PA 17011 Attn: General Manager Copy to: Certain Fundamental Lease Provisions are presented in this Section and represent the agreement of the parties hereto, subject to definition and elaboration in the respective referenced Sections and elsewhere in this Lease: (a) Tenant's Trade Name: Cajun Caf4 Grill (See Sec. 7.01) (b) Rent Tenn: Landlord and Tenant acknowledge that Landlord will be constructing a Food Court at the Capital City Mall in an area outlined in blue on Exhibit A attached hereto and Tenant will be required to move to another location within the Food Court Area ("Relocation Premises") during the term of this Lease. Prior to the Food Court opening, Tenant will occupy Store Number 834 for a period of months ("Initial Term") which shall commence on the earlier to occur of (a) August 15, 2004 or (b) the date upon which the Tenant opens for business in Store Number 834, and will terminate upon the closing of the Premises. Landlord and Tenant agree that Tenant will be permitted to close Store Number 834 in order to relocate its equipment to the Relocation Premises, such closing to occur no sooner than seven (7) days prior to Tenant opening for business In the Relocation Premises. Following Tenant's relocation to the new Food Court Area, Tenant's term will be extended for one hundred twenty (120) months commencing on the date Tenant's opens for business in the Food Court ("Relocation Rent Commencement Date") and terminating on the last day of the one hundred twentieth (120"') month following the Relocation Rent Commencement Date (the "Expiration Date"). (See Sec. 3.01) (c) Tenant Store Number: 834 (an area outlined in red on Exhibit A) (See Exh. A) (d) GLA of Premises: 550 square feet (See Sec. 1.04) (e) Design Drawings Submission Date: April 15th, 2004 (See Sec. 2.03) (f) Tenant's "Construction Commencement Date": June 1`t, 2004 (See Sec. 2.03) & "Construction Period": sixty (60) days from the last to occur of (i) full execution and delivery of the Lease; (ii) delivery of Premises by Landlord; (ill) plan approval: and Tenant's receipts of permits. (See Sec. 2.03) (g) Minimum Rent: Time Period Annual Amount Monthly Amount Opening of Room #834 through the termination of the Initial Term =26,00040 $2,083.84 From the Relocation Rent Commencement Date through the 36th month thereafter $50,000.00 $4,166.67 From the 37th month from the Relocation Rent Commencement Date through the 84th month thereafter $60,000.00 $5,000.00 D:\Legal\BrendaM\WORD\PRETT-Leases\CapitalCity\CajunCafeGrill(final).doc From the 85th month from the Relocation Rent Commencement Date through the end of the Term (h) P $70,004.00 25,833.33 (See Sec. 4.03) ercentage Rent: Time Period Break Point The "Percentage" Opening of Room 11834 through the termination of the Initial Term $312,500.00 Eight Percent (8%) From the Relocation Rent Commencement Date through the 36th month thereafter $625,000.00 Eight Percent (8%) From the 37th month from the Relocation Rent Commencement Date through the 84th th mon thereafter $750,000.00 Eight Percent (8%) From the 85th month from the Relocation Rent Commencement Date through the end of the Term $875,000.00 Eight Percent (8•ti) (See Sec. 4.04) (i) Required Opening Date: August 95th, 2004 0) Security Deposit: NOT APPLICABLE (See Sec. 4.02) (k) Marketing Service Charge: $1.50 per square foot of the GLA of the P (See Sec. 2.02) Minimum Advertising Charge: remises per Year $1.50 per square foot of the GLA of the Pr i (See Sec. 9.01) em ses per Year (See Sec. 9.02) FUNDAMENTAL LEASE PROVISIONS (CONT'D (1) Certain Other Charges Payable by Tenant: Tax Charge Services Charges (See Sec. 5.01) Refuse Handling Charge (See Sec. 6.02) CAM Charge (See Sec. 6.04) Special Assessment (See Sec. 8.03) Food Court CAM Sum (See Sec. 9.01) (Exhibit E) (m) "Agent" and To Whom Rent Payable: PR CAPITAL CITY LIMITED PARTNERSHIP P.O. BOX 644052 PITTSBURGH, PA 152644052 (n) Use: the retail sale of those menu items listed on Exhibit "D", attached hereto and incorporated herein, and for no other purpose whatsoever. (See Sec. 7.01) D:\Legal\BrendaM\WORD\PREIT_Leases\CapitalCity\CajunCaferrill(final).dce 3 LEASE AGREEMENT ARTICLE 1: INTRODUCTORY PROVISIONS Section 1.01: REFERENCES AND CONFLICTS. References appearing in the Fundamental Lease Provisions are to designate some of the other places in this Lease where additional provisions applicable to the particular Fundamental Lease Provisions appear. Each reference in this Lease to any of the Fundamental Lease Provisions shall be construed to incorporate all of the terms provided for under such provisions, and such provision shall be read in conjunction with all other provisions of this Lease applicable thereto. If there is any conflict between any of the Fundamental Lease Provisions and any other provisions of this Lease, the latter shall control. The listing on the Fundamental Lease Provisions of monetary charges payable by Tenant shall not be construed to be an exhaustive list of all charges or the amount thereof payable by Tenant under this Lease. Section 1.02: GENERAL DEFINITIONS. (a) The term "Shopping Center" . means the land shown on Exhibit "A" attached hereto and by this reference incorporated herein, as the same may hereafter be reduced, expanded or otherwise altered from time to time. (b) The term "Mall Premises" means the Shopping Center excluding however the Majors' Premises and the term "Mall Premises" includes the same as reduced, expanded or otherwise altered from time to time. (c) The term "Landlord's Building" means the buildings, structures and other improvements shown in general on Exhibit "A" and includes the "Enclosed Mall" (hereinafter defined), but excludes the Majors' Premises (hereinafter defined). Landlord's Building is part of the Mall Premises. The term "Landlord's Building" includes the same as reduced, expanded or otherwise altered from time to time. (d) The term "Majors' Premises" (or "Majors Premises") means the premises shown on Exhibit "A", page 1 by such term, or by the word "Major" or name of the prospective or actual principal occupant thereof (the "Majors" or a "Major"), and the term "Majors' Premises" (or "Majors Premises") includes the same as reduced, expanded or otherwise altered from time to time provided same are equal to or greater than 50,000 contiguous square feet and occupy and operate under one trade name The term "Major" (or "Majors") includes any replacement for or other substitute of the primary occupant of a Majors Premises as well as, in the case of an expansion of the Shopping Center, the primary occupant of the premises equal to or exceeding, in terns of GLA, the GLA of any one (1) of the Majors' Premises shown on Exhibit "A" (even though those premises may not be originally shown thereon). References in this Lease to a Major or Majors shall include any such replacement, substitute or additional Major and its premises are included within the terms "Majors' Premises" and "Major's Premises". (e) The term "Common Areas" means all areas, facilities and improvements operated or provided at or in connection with the Shopping Center from time to time for the non-exclusive common use of Landlord, the tenants of the Mall Premises and the Majors, and shall include but not be limited to the "Enclosed Mall" (hereinafter defined), parking areas, roadways, ramps, traffic controls, truck ways, loading and unloading docks, delivery areas, sidewalks, stairways, escalators and elevators (if any), service corridors, exit corridors, seating areas, buffer areas, screening facilities, merchandise pickup stations (excluding those of Majors, if any), public rest rooms and comfort stations, retaining walls, landscaped areas, open space areas, utility systems, sanitary and other waste handling systems, holding tanks, force mains, fire detection and/or suppression systems, life safety systems, security systems, community rooms, drainage systems, and lighting systems. The term "Common Areas" includes the same as reduced, expanded or otherwise altered from time to time. (f) The term "Enclosed Mall" means the enclosed climate controlled pedestrian mall located in Landlord's Building, and the term "Enclosed Mall" includes the same ns reduced, expanded or otherwise altered from time to time. (g) The term "Premises" means the space demised by this Lease and situated in Landlord's Building which space is in the approximate location marked on Exhibit "A", however, the Premises is limited vertically to the ceiling height above the structural floor set forth in Landlord's "Store Design Criteria" (defined in Section 2.03(b) hereof). In the event the Premises is a corner location, the Premises shall exclude any rights with respect to the exterior side wall of the Premises. (h) The term "Fast Food Cluster" means the area or areas now or in the future specifically designated by Landlord for small restaurant or other food service operations situated in Landlord's Building or elsewhere in the Mall Premises, including the individual premises and any seating areas located therein and the maintenance and housekeeping areas primarily serving the Fast Food Cluster. The term "Fast Food Cluster" includes the same as reduced, expanded or otherwise altered from time to time. W The term "GLA means with respect to the Premises and all other leasable areas, Landlord's best estimate of the number of square feet of area on all floors in Landlord's Building for the exclusive use by the tenants or other occupants thereof and their customers, clients or other invitees including without limitation mezzanines and balconies if used for the sale of goods and/or services (but excluding all other areas and space defined herein as part of Common Areas). GLA of the Premises shall be measured from the exterior face of exterior walls and the exterior face of service corridor walls, the line along the front of the Premises where the Premises abuts the Enclosed Mall as shown on Exhibit A (which line is commonly known as the "Lease Line"), or the Lease Line of any pop-outs referred to in Section D:\Legal\BrendaWWORD\PREIT-Leases\CapitalCity\CajunCafef3rrill(fmal).doc 4 • 1.04, as the case may be, and the center line of any wail Tenant shares with other tenants or occupants of the Landlord's Building or a Majors' Premises. With respect to all leasable areas other than the Premises, GLA shall be determined by virtue of the definition contained in the lease in question. No deduction from GLA shall be made for columns, stairs, elevators, or any interior construction or equipment. From time to time during the Term, Landlord may give Tenant notice of the GLA of Landlord's Building, at a given time for a given period of time, as such GLA may be revised because of reductions, expansions or other alterations of Landlord's Building or as such GLA may be adjusted pursuant to provisions in the leases of other tenants or occupants. The GLA of the Premises and of Landlord's Building shall be utilized to calculate the GLA Fraction (defined in Section 1.020) and to make any other calculations required to determine the charges to Tenant. Q) The term "GLA Fraction" means a fraction, the numerator of which shall be the GLA of the Premises and the denominator of which shall be the occupied floor area of Landlord's Building, subject, however, to the provisions of Section 4.08. Further, at no time shall the denominator of the GLA Fraction be less than the eighty percent (80X) of the total leasable area of the Shopping Center, less the GLA of the Majors' Premises and the Junior Majors' Premises. (k) The term "Junior Major(s)" means a person or entity, (not herein identified as or otherwise hereunder constituting a "Major") which owns or leased (1) any building or ground not connected to Landlord's Building (e.g., a so called "out parcel") or that does not open on to the interior mall or (ii) in excess of 15,000 square feet of GLA in the Shopping Center and the term "Junior Major(s') Premises" means the premises in the Shopping Center owned, occupied or leased by a Junior Major. (I) The term "Lease" as used in this document (the "Lease") shall mean the Fundamental Lease Provisions, the Lease Agreement, the Exhibits attached hereto and Addendum, if any. Section 1.03: EXHIBITS. The following plans and special provisions are attached hereto as Exhibits, are incorporated herein and hereby made a part of this Lease. EXHIBIT A Plan of the Shopping Center as presently constituted which plan also show's the approximate location of the Premises. EXHIBIT B Guarantee of Lease (the "Guarantee"), if applicable. EXHIBIT C Completion Certificate. EXHIBIT D Menu. EXHIBIT E Fast Food Cluster Tenant Exhibit. Section 1.04: TENANT'S STOREFRONT. Tenant may, subject to receipt of all required governmental approvals and Landlord's prior written approval, "pop- out" all or a portion of the storefront. Should Tenant install a pop-out storefront, the GLA of the Premises shall be increased to include the square foot area of the pop-out(s;. The Minimum Rent and the Break Point shall be accordingly increased, to include the area of such pop-out(s). Section 1.05: CHANGES TO SHOPPING CENTER. As between Landlord and Tenant, Landlord may at any time and from time to time eliminate land from, or add to or substitute for land of, the Shopping Center or any part thereof, or eliminate, add or substitute any improvements, or change, enlarge or consent to a change in the shape, size, location, number, height, or extent of the improvements to the Shopping Center or any part thereof, including, without limitation adding additional levels to any existing buildings therein. Section 1.06: CROSS EASEMENT AGREEMENT. Tenant understands and agrees with Landlord that, notwithstanding anything to the contrary contained in this Lease, the Shopping Center including, without limitation, the Common Areas and the Premises are and shall be subject, subordinate and otherwise junior to any cross easement agreement (as they may be or may have been created, amended, supplemented or otherwise modified from time to time) between Landlord and each of the Majors or Junior Majors who are parties thereto (such cross easement agreement being herein collectively called the "REA ). Landlord represents and warrants that the REA referred to in the Lease does not contain any provisions that would adversely affect Tenant's accessibility to, visibility or operation of the Premises; nor its parking area; nor does such instrument contain any provisions which are inconsistent with the provisions of the Lease or which shall create any additional financial obligations on Tenant. D:\Izgal\BrendaM\WORD\PREIT-Leases\CapitalCiry\CajunCafeGritl(final).doc 5 ARTICLE 2: PREMISES AND TENANT'S WORK Section 2.01: LEASE OF PREMISES. Landlord, in consideration of the "Rent" (defined in Section 4.01) to be paid and the covenants to be performed by Tenant, does hereby demise and lease unto Tenant, and Tenant hereby leases and takes from Landlord, for the Term, at the rental, and upon the covenants, conditions and other terms herein set forth, the commercial space referred to herein as the Premises situated or to be situated in Landlord's Building, as the case may be. Section 2.02: SECURITY DEPOSIT. DELETED. Section 2.03: PREPARATION OF PLANS AND TENANT'S WORK. (a) Tenant has had the opportunity to examine the Premises and hereby agrees to accept same in the "as is" condition in which the Premises exist on the date Landlord turns over the key to the Premises to Tenant or Tenant's designee. Tenant further acknowledges that Landlord has not made any representations as to the present or future condition of the Premises or what items, if any, the present occupant of the Premises is required to or may leave therein. Landlord shall not be required to send Tenant any formal notice tendering possession of the Premises nor shall Landlord be liable in the event the existing occupant of the Premises fails to timely vacate the same, except that any delay in occupancy shall extend the Required Opening Date specified herein for a period equal to the number of days between the Construction Commencement Date specified herein and the date such former tenant vacates; provided that if physical possession of the Premises is not available by a date which is one year from the Construction Commencement Date, at Landlord's option, this Lease shall be null and void and neither party shall have any liability hereunder to the other. (b) Tenant shall perform all work required to be performed by Tenant to fully and completely remodel the Premises and to adapt the same for Tenant's use, as such use is specified and limited by the Fundamental Lease Provisions, all such work being referred to herein as "Tenant's Work". Tenant shall design the Premises in accordance with Landlord's current store and storefront design criteria booklet and otherwise comply with all insurance and other requirements therein (herein called "Store Design Criteria"), a copy of which Tenant acknowledges it has received. Tenant shall instruct its architect or designer to prepare Tenant's plans for the Premises in compliance with the Americans with Disabilities Act, the Clean Air Act and all other applicable laws, rules, codes, and regulations. In the event of any inconsistencies between the text of this Lease and the Store Design Criteria, the latter shall prevail. Entry by Tenant to the Premises prior to the Rent Commencement Date shall be subject to all of the provisions of this Lease, except the duty to pay Rent but Tenant shall pay for all utilities and services supplied to it during such period. Tenant agrees to perform Tenant's Work in accordance with the provisions of this Lease and such manner so as not to cause any interference with the use, occupancy or enjoyment of the remainder of the Shopping Center, or any part thereof. Tenant shall promptly cause to be repaired all items which may have been damaged as a result of the performance of Tenant's Work promptly upon the occurrence of such damage and shall at all times keep all portions of the Shopping Center (other than the Premises) free from and unobstructed by debris, equipment or materials related to Tenant's Work. (c) On or before the Design Drawing Submission Date, Tenant shall submit to Landlord's tenant coordinator (herein called the "Tenant Coordinator") for the Landlord's approval design drawings (herein called the "Design Drawings") specifying each aspect of Tenant's Work and specifically including a colored rendering of the proposed storefront and signing, sample materials to be used in the Premises and sign, photograph of fixtures to be used and the interior layout of the Premises. The Design Drawings shall be prepared in accordance with the Store Design Criteria. After receipt of the Design Drawings, Landlord shall return to the Tenant the Design Drawings, either "approved", "approved as noted" or "disapproved"; if they are marked "disapproved", Landlord shall also note the reasons of such disapproval. On or before thirty (30) days after receipt of the "disapproved Design Drawings, Tenant shall resubmit to the Tenant Coordinator revised Design Drawings meeting Landlord's objections. Landlord shall thereafter return the same to Tenant, marked as set forth above and Tenant shall within an additional thirty (30) day period resubmit revised drawings until the same have been "approved as noted" or "approved". On or before thirty (30) days after receipt of "approved as noted" or "approved" Design Drawings Tenant shall submit to the Tenant Coordinator for Landlord's approval, working drawings and specifications (herein called "Final Plans") 'or architectural, electrical, mechanical, sprinkler and plumbing work within the Premises and all other Tenant Work proposed by Tenant and shown on the Design Drawings and required by the Store Design Criteria. The Final Plans shall be prepared in accordance with the Design Drawings as marked "approved as noted" or "approved" by Landlord. The Final Plans shall incorporate any revisions required by Landlord to the Design Drawings, including those forming the basis of Landlord's approving the same "as noted". After receipt of the Final Plans, Landlord shall return to Tenant the Final Plans, marked either "approved", "approved as noted" or "disapproved". If they are marked "disapproved", Landlord shall state the reasons for such disapproval and Tenant shall, on or before ten (10) days after receipt of such "disapproved" Final Plans, correct any deficiencies stated by Landlord and resubmit within ten (10) days corrected Final Plans to Landlord until same are accepted as "approved as noted" or "approved". If Landlord accepts Tenant's Final Plans "approved as noted", Tenant need not resubmit the same to Landlord's Tenant Coordinator, but Tenant shall revise such Final Plans to incorporate Landlord's required changes and Tenant covenants that the Tenant Work in the Premises shall be constructed in such fashion as to comply with the notes disclosed on such "approved as noted" Final Plans. If Tenant does not correct such deficiency and resubmit any disapproved Final Plans within the required time period, such failure shall constitute an Event of Default. Tenant's Work shall be performed only in accordance with the Final Plans, as marked "approved as noted" or "approved" by Landlord. Tenant's failure to submit its Design Drawings on or before the Design Drawings Submission Date or Tenant's failure to commence Tenant's Work on or before the Construction Commencement Date shall be an Event of Default pursuant to D:\Legal\13rendaM\W ORD\PREIT-Leases\CapitalCity\CajunCafer.rrill(fmat).doc 0 0 Section 16.01 unless such failure results from Landlord's inability to deliver possession of the Premises to Tenant on the Construction Commencement Date. (d) Intentionally Deleted. (e) On or before the Construction Commencement Date, Tenant shall deposit with Landlord certificates of insurance as required in Article 11 and the Store Design Criteria, as well as a true copy of Tenant's building permit and Tenant shall commence Tenant's Work and prosecute it diligently and continuously to completion including installation of fixtures and equipment in the Premises. Prior to the commencement of any Tenant Work or the delivery of any material to the Premises by any contractor, subcontractor or materialman (herein called "Contractor"), Tenant shall deliver to the Tenant Coordinator a signed, acknowledged and sealed waiver of liens (herein called "Contractors Waiver of Liens") from each Contractor furnishing in excess of $5,000.00 in services or materials in the form specified by Landlord. The Contractor's Waiver of Liens provides, among other things, that the Contractor waives any and all lien rights that it may have against Landlord's estate, right, title and interest in the Shopping Center and any part thereof including, without limitation, Landlord's Building and the Mall Premises. Within thirty (30) days after Tenant's opening the Premises for business, Tenfint shall deliver to Landlord an executed Completion Certificate in the form attached hereto as Exhibit "C". (f) Landlord shall have the right to post and keep posted in the Premises notices of non-responsibility, or such other notices as Landlord may deem to be proper for the protection of the Landlord or Landlord's estate, right, title and interest in the Shopping Center and any part thereof. Tenant shall before the commencement of any work which might result in any claim, lien or other charge give to the Landlord written notice of its intention to commence said work in sufficient time to enable Landlord to post, file and record such notices. The provisions of this Section 2.03 shall apply with respect to Tenant's Work or any other work performed in or about the Premises at any time during the Term hereof. Section 2.04: OPENING OF PREMISES. (a) Tenant agrees to open its business to the public in the Premises no later than the Required Opening Date specified in the Fundamental Lease Provisions. (b) Tenant shall complete, or cause to be completed, Tenant's Work and the installation of fixtures, equipment and merchandise no later than the Required Opening Date provided Landlord has not prevented Tenant from doing so. If Tenant fails to open its business to the public in the Premises on or before the Required Opening Date, Tenant shall pay to Landlord, in addition to Minimum Rent and Additional Rent, an amount equal to one percent (1%) of the annual Minimum Rent for each day Tenant's business remains not open in the Premises from and after the Required Opening Date (counting the said Required Opening Date as the first such day). Any and all sums and other charges payable by Tenant to Landlord pursuant to the immediately preceding sentence shall be paid on demand to offset administrative costs and expenses incurred by Landlord as a result of Tenant's late opening and shall in no way abrogate, or relieve Tenant from any of Tenant's obligations under this Lease, including without limitation the obligation to open its business in the Premises, and Landlord shall have all other rights and remedies under this Lease, at law and in equity, arising from Tenant's failure to open pursuant to this Section 2.04(b). Section 2.05: MECHANIC'S LIENS. (a) Tenant will not permit to be created or to remain undischarged any lien, encumbrance or other charge arising out of any work done or materials or supplies furnished by any contractor, subcontractor, mechanic, laborer or materialman or any mortgage, conditional sale, security agreement or chattel mortgage which might be or become a lien or encumbrance or other charge (collectively a "Charge") against or upon the Shopping Center or any part thereof, including without limitation the Mall Premises and Landlord's Building or the income therefrom. Tenant will not suffer any other matter or thing whereby the estate, right, title and interest of Landlord in the Shopping Center or any part thereof including without limitation the Mall Premises and Landlord's Building might be impaired. If any claim or lien or notice of claim or lien on account of an alleged debt of Tenant or ary notice of contract or Charge by a person engaged by Tenant or Tenant's contractor to work on the Premises shall be died against or upon the Shopping Center or any part thereof including without limitation, the Landlord's Building or the Mali Premises, Tenant shall within twenty (20) days after demand from Landlord, cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. If Tenant shall fail to cause such claim or lien or notice of claim or lien or other Charge to be discharged within the period aforesaid, then, in addition to any other right or remedy it may have, Landlord may, but shall not be obligated to, discharge the same by payment, deposit or by bonding proceedings, and in any such event Landlord shall be entitled, if Landlord so elects, to compel the prosecution of an action for the foreclosure of the same by the claimant and to pay the amount of any judgment in favor of the claimant with interest, costs and allowances. Any amount so paid by Landlord and all interest, costs and expenses, including attorneys' fees, incurred by Landlord in connection therewith, shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord on demand. Nothing herein contained shall obligate Tenant to pay or discharge any charge created by Landlord. (b) Tenant shall pay promptly all persons furnishing labor or materials with respect to any work completed by Tenant or by Tenant's contractor in or about the Premises. No work which Landlord permits Tenant to do shall be deemed to be for the immediate use and benefit of Landlord so that no mechanics' or other claim, lien or other Charge shall be allowed against the estate, right, title or interest of Landlord by reason of any consent given by Landlord to Tenant to do work in or about the Premises or provide materials therefor. Nothing contained herein shall imply any consent or agreement on the part of Landlord to subject Landlord's estate to liability under any mechanics' or other lien law. D:U.egal\BrendaWWORD\PREIT-Leases\CapitalCity\CajunCafeCnill(final).doc 7 ARTICLE 3: TERM Section 3.01: TERM OF THIS LEASE. The term of this Lease (sometimes herein called the "Term") means the period of the "Interim Term" (hereafter defined) followed immediately by the period of the "Rent Tenn" (hereinafter defined). The "Interim Term" means the period commencing on the date of this Lease and ending on the date immediately preceding the Rent Commencement Date. The "Rent Tenn" means the period commencing on the Rent Commencement Date and ending on the Expiration Date, as extended pursuant to Section 21.02 hereof or by agreement executed by Landlord and Tenant or sooner terminated as provided herein, as the case may be. During the Interim Term, If Tenant is not open for business in the Premises, all of the provisions of this Lease shall apply except that Tenant's obligation to pay Rent shall abate, other than for utilities and trash charges. Section 3.02: YEARS. The term "Year" -means each successive twelve (12) month period from January 1 through December 31 occurring during the Term, plus, if applicable any Partial Year. "Partial Year" means the period between and including the Rent Commencement Date, if that date is not January 1, and the next succeeding December 31 and, if applicable, if the Term ends on other than a December 31, the period beginning on the last January 1 of the Term and ending on the last day of the Term. ARTICLE 4: RENT Section 4.01: TENANT'S AGREEMENT TO PAY RENT. Tenant hereby agrees to pay for the right of use and occupancy of the Premises during the Rent Term, at the times and in the manner herein provided, the Minimum Rent, Percentage Rent and Additional Rent. As used in this Lease, the term "Rent" means, collectively, the Minimum Rent, Percentage Rent and Additional Rent. Section 4.02: RENT COMMENCEMENT DATE. As used in this Lease, the term "Rent Commencement Date" shall mean the earlier of: (a) the date on which Tenant initially opens its business to the public in the Premises (the "Actual Opening Date"); or (b) the calendar date set forth as the Required Opening Date in the Fundamental Lease Provisions. Section 4.03: MINIMUM RENT. (a) The base rent Tenant shall pay Landlord for each Year shall be the amount set forth in the Fundamental Lease Provisions as the Minimum Rent per Year and shall be payable in twelve (12) equal monthly installments, in advance, on the first day of each calendar month. (b) The base rent Tenant shall pay Landlord for any Partial Year shall be that amount set forth in the Fundamental Lease Provisions as the Minimum Rent per Year times the Partial Year Fraction. As used in this Lease, "Partial Year Fraction" means a fraction, the numerator of which is the number of days in the applicable Partial Year, and the denominator of which is three hundred sixty-five (365). The base rent payable for a Partial Year shall be paid in equal monthly installments, in advance, on the first day of each calendar month, except that if the Rent Commencement Date is not the first day of a calendar month, then that portion of such base rent which is attributable to the days in that first partial calendar month shall be paid, in advance, on the Rent Commencement Date. (c) The base rent payable by Tenant pursuant to Section 4.03(a) or (b), whichever is applicable, is called the "Minimum Rent" in this Lease. Minimum Rent shall be prorated for partial months, if any. If the Minimum Rent increases during the Rent Term, for the purpose of determining the date on which Minimum Rent increase(s) become effective, a partial month shall be disregarded. (d) Intentionally Deleted. Section 4.04: PERCENTAGE RENT. (a) In addition to Minimum Rent, Tenant sha!I pay Landlord percentage rent (herein called "Percentage Rent") as determined by this Article 4. The Percentage Rent for each Year shall be an amount equal to the "Percentage" (which is set forth in the Fundamental Lease Provisions) multiplied by the amount of Gross Sales made during such Year in excess of the applicable Break Point set forth in the Fundamental Lease Provisions. The Percentage Rent for each Partial Year shall be an amount equal to the Percentage multiplied by the amount of Gross Sales made during such Partial Year in excess of the Partial Year Break Point. The term "Partial Year Break Point" shall mean an amount equal to the Break Point multiplied by the Partial Year Fraction for the applicable Partial Year and the Break Point and Partial Year Break Point are collectively referred to as the "Break Point". D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafei 6 i(final).doc • In the event the Term shall commence with a Partial Year which shall have less than ten (10) full calendar months, then Tenant's Gross Sales for such Partial Year shall be calculated by taking Tenant's Gross Sales for the first full twelve (12) calendar months following the Rsnt Commencement Date and prorating such amount, by multiplying the amount of such Gross Sales by a fraction, the numerator of which shall be the number of days in such Partial Year and the denominator of which shall be 365. Tenant shall then be obligated to pay eight percent (8%) of all Tenant's Gross Sales for such prior Partial Year in excess of the Partial Year Break Point. Such Percentage shall be payable on or before the last day of the 13th month next following the Rent Commencement Date. (b) In each Year or Partial Year, Tenant shall be obligated to pay Percentage Rent beginning with the first month in which the aggregate amount of Gross Sales made for such Year or Partial Year exceeds the Break Point. Tenant shall pay Percentage Rent (in addition to Minimum Rent and Additional Rent) for each and every succeeding month during the remainder of such Year or Partial Year on all additional Gross Sales. Each payment of Percentage Rent shall be paid by Tenant to Landlord without demand and otherwise as set forth in this Article 4 together with Tenant's monthly statement of Gross Sales provided for in Section 4.06, subject to the annual adjustment provided for in such Section 4.06. (c) In the event any Break Point is subject to adjustment during the term of this Lease, and the date on which any such adjustment is to occur (hereafter referred to as the "Rental Adjustment Date") is other than the first day of a Year, the Break Point for the Year in which the Rental Acjustment Date shall fall shall be the sum of: (1) the initial Break Point multiplied by a fraction the numerator of which shall be the number of days in the period commencing on the first day of the Year in which the Rental Adjustment Date shall fall and ending on the day immediately prior to the Rental Adjustment Date and the denominator of which shall be three hundred sixty-five (365), plus (2) the latter Break Point multiplied by a fraction, the numerator of which shall be the number of days in the period commencing on the Rental Adjustment Date and ending on the last day of the Year in which the Rental Adjustment Date shall fall and the denominator of which shall be three hundred sixty-five (365). Section 4.05: GROSS SALES. (a) The term "Gross Sales" means the total gross receipts and receivables of all merchandise, wares and other goods sold or leased and the actual charges for all services performed, business conducted and accommodations rendered by Tenant and by any subtenant, licensee, concessionaire and other occupant in, at, from, or arising out of the use of the Premises, whether wholesale or retail, whether for cash or credit, or otherwise, and including the value of all consideration other than money received for any of the foregoing, without reserve or deduction for inability or failure to collect, including but not limited to sales, leases and services: W where the orders therefor originate in, at, from or arising out of the use of the Premises, whether delivery or performance is made from the Premises or from some other place and regardless of the place of bookkeeping for, payment of, or collection of any account; or (ii) made or performed by mail, telephone, Internet, website or similar means and orders received or filled or delivered in, at or from the Premises; or (iii) made or performed by means of telephonic, mechanical or other vending means or devices in or for the Premises; or (iv) which Tenant, and any subtenant, licensee, concessionaire and other occupant, in the normal and customary course of its business, would or does credit or attribute to its operations at the Premises or any part thereof. Any deposit accepted and retained by Tenant shall be included in Gross Sales. Each installment or credit sale shall be treated as a sale for the full price in the month during which such sale is made, irrespective of whether or when Tenant receives payment therefor. No franchise, value added tax, capital stock tax, tax based upon assets or net worth or gross receipt tax, and no income or similar tax based on income or profits shall be deducted from Gross Sales. (b) Only the following shall be excluded from Gross Sales: (i) any exchange of merchandise behveen stores of Tenant when such exchange is made solely for the convenient operation of Tenant's business and is not for the purpose of consummating a sale made in, at or from the Premises; (ii) returns to suppliers, shippers or manufacturers; (iii) cash or credit refunds to customers on transaction otherwise included in Gross Sales; (iv) sales of fixtures, machinery and equipment, which are not stock for sale or trade, after use thereof in the conduct of Tenant's business; (v) amounts separately stated in the sales receipt and collected from customers which are paid by Tenant to any government for any sales or excise tax imposed by law at the point of sale. (vi) employee purchases at the Premises of merchandise on a discount basis, which in no event shall exceed five percent (5%) of Tenant's Gross Sales from the Premises; (vii) receipts from the bulk sale or transfer of Tenant's inventory, fixtures or personal property; (viii) income derived from any pay telephone maintained for the use of Tenant's employees; and (viii) insurance proceeds paid to Tenant for damaged, lost or stolen merchandise. D:\Legal\Brend"WORD\PREIT-Leases\CapitalCity\CajunCafi;,' ifl(fural).doc Section 4.06: REPORTING OF GROSS SALES; YEAR END ADJUSTMENT. (a) Tenant shall fumish to Landlord within twenty (20) days after the end of each calendar month during the Term a complete statement (the "Monthly Report"), certified by Tenant (or a responsible financial officer thereof if Tenant is a corporation), setting forth (i) the amount of Gross Sales during such month, (ii) the aggregate amount of Gross Sales during such Year (or Partial Year, as the case may be), including such month, (iii) the amount, if any, by which such aggregate amount of Gross Sales exceeds the Break Point, and (iv) the amount of Percentage Rent previously paid by Tenant to Landlord for such Year (or Partial Year, as the case may be). The Monthly Report shall be in such form and style and contain such details and breakdown as Landlord may reasonably require. (b) Tenant will also furnish to Landlord withir sixty (60) days after the end of each Year a complete statement (the "Yearly Report") certified by the chief financial officer of Tenant, showing in reasonable detail the amount of Gross Sales during such Year and the amount paid to Landlord pursuant to Section 4.04(b) for such Year. The Yearly Report shall be accompanied by the signed opinion of the person certifying the Yearly Report specifically stating that such person has read the definition of "Gross Sales" contained in this Lease, that such person has examined the Yearly Report of Gross Sales of such Year, that such person's examination included such tests of Tenant's books and records as such person considered necessary under the circumstances, and that the Yearly Report accurately represents the Gross Sales of such Year. (c) An adjustment shall be made with the furnishing of each Yearly Report with respect to Percentage Rent as follows: if Tenant shall have paid to Landlord an amount greater than Tenant is required to pay as Minimum Rent and Percentage Rent under the terms of Sections 4.03 and 4.04(a), Tenant shall receive a credit of such excess against payments of Minimum Rent next becoming due to Landlord or refunded to Tenant when the Lease term is ended; or, if Tenant shall have paid an amount less than was required to be so paid, then Tenant shall forthwith pay such difference. In no event, however, shall the sum of the Minimum Rent and Percentage Rent to be paid by Tenant and retained by Landlord under the terms of Sections 4.03 and 4.04(a) for any given Year be less than the Minimum Rent for such Year. (d) The reports required by this Section 4.06 shall be delivered to Landlord at the notices address of Landlord or to such other person and/or to such other place as may be designated from time to time by notice from Landlord to Tenant. If Tenant shall fail to deliver any Monthly Report and/or Yearly Report when due, in addition to all of Landlord's other rights and remedies hereunder, Tenant shall pay to Landlord, as Additional Rent, an amount equal to Twenty Five Dollars ($25.00) per day for each day such statement is overdue. Section 4.07: TENANT'S RECORDS & AUDITS. (a) Tenant covenants and agrees that the business records of Tenant and of any subtenant, licensee or concessionaire shall be maintained in accordance with generally accepted accounting principles. Furthermore, Tenant shall keep at all times during the Term, at the Premises or at the home or regional office of Tenant, full complete and accurate books of account and records in accordance with generally accepted accounting practice with respect to all operations of the business conducted in or from the Premises, including the recording of Gross Sales and the receipt of all merchandise and other goods into and the delivery of all merchandise and other goods from the Premises during the Term, and shall retain such books and records, copies of all tax reports and tax returns submitted to taxing authorities, as well as copies of contracts, vouchers, checks, inventory records and other documents and papers in any way relating to the operation of such business for at least three (3) years from the end of the period to which they are applicable, or if any audit is required or a controversy should arise between the parties hereto regarding the Rent payable hereunder, until such audit or controversy is terminated even though such retention period may be after the expiration of the Term or earlier termination of this Lease. Such books and records shall be open at all reasonable times during the aforesaid retention period to the inspection of Landlord or its duly authorized representatives, who shall upon ten (10) days' prior notice to Tenant have full and free access to such books and records and the right to require of Tenant, its agents and employees, such information or explanation and audit thereof and the right to require Tenant to make such books, records and other materials which Tenant is required to retain available at the Premises or at Tenant's home office for such examination and audit. (b) The acceptance by the Landlord of payments of Percentage Rent shall be without prejudice to the Landlord's examination and audit rights hereunder. Landlord may at any reasonable time, upon ten (10) days' prior written notice to Tenant, cause a complete audit to be made of Tenant's entire books, records and other materials which Tenant is required to retain (including the books and records of any subtenant, licensee, concessionaire and other occupant) for all or any part of the three (3) year period immediately preceding the day of the giving of such notice by Landlord to Tenant. If such audit shall reveal a deficiency in any payment of Percentage Rent, Tenant shall forthwith pay to Landlord the amount of the deficiency. Landlord shall have the right to audit Tenant's books and records only once for each Year. Any information obtained by Landlord as a result of such audit shall be held in strict confidence by Landlord, except for any proceedings to collect the amount of any deficiency, or the cost of such audit, or with respect to a sale, lease or mortgage of the Shopping Center. If Landlord shall not au-lit for any particular Year within the time period during which Tenant is required to retain its books and records, Landlord shall be deemed to have waived its right to audit for such Year. (c) If such audit shall disclose that (i) any of the Yearly Reports intentionally understate Gross Sales during the reporting period of the report to the extent of two percent (2%) or more; or (ii) Tenant has not recorded Gross Sales, or kept books of account and records, as and for the period required by this Section 4.07; or (iii) if Tenant shall be delinquent D:\Legal\BmmdaM\WORD\PREIT-Leases\CapitalCity\CajunCafek3rill(final).doc 10 i in deloveFFRg fail or refuse to deliver to Landlord the Yearly Report or Monthly Reports for two (2) consecutive months, or more than twice in any Year or Partial Year, then such understatement, failure or deRnquensy refusal shall be an Event of Default. In addition, in the event of such understatement or failure, Landlord shall have the right to bill to Tenant the amount of any deficiency in Percentage Rent and the reasonable cost of said audit which shall be paid by Tenant within ten (10) days after demand which deficiency will bear interest at the "Default Rate" (defined in Section 16.03 hereof) from and after the date it should have been paid until paid. (d) In the event Tenant violates the provisions of Sections 4.06 or 4.07 or both and as a result of such violation, Landlord, or its duly authorized representatives, is unable to conduct a proper examination and/or audit, the parties agree that Landlord shall have been deprived of an important right under this Lease and, as a result thereof, will suffer damages in an amount which is not readily ascertainable and thus, in such event, Landlord, in addition to and not in lieu of any other remedies which Landlord has under this Lease, at law or in equity, shall have the right, at its option, to collect, as liquidated damages and not as a penalty, an amount equal to twenty percent (20%) of the greater of (i) Percentage Rent reported for the period or periods in question, or (ii) the annual Minimum Rent payable for the period or periods in question. Tenant agrees to pay such liquidated damages. Section 4.08: ADDITIONAL RENT. In addition to Minimum Rent and Percentage Rent, Tenant shall pay, as additional rent (herein sometimes collectively called "Additional Rent") all other amounts, sums of money or charges of whatsoever nature required to be paid by Tenant to Landlord pursuant to this Lease, whether or not the same is designated as "Additional Rent". The terms "Taxes", "Tax Charge", "CAM Sum" and "CAM Charge" are defined in Articles 5 and 8, respectively. In computing the Tax Charge, the CAM Charge and any other charge to Tenant computed on the same or substantially similar basis as the Tax Charge or the CAM Charge (collectively "Other Like Charges"), the net payments by Majors and Junior Majors to Landlord toward the Taxes, the CAM Sum or the sums on which Other Like Charges are based (collectively the "OLC Sums") shall be applied respectively to reduce the Taxes, the CAM Sum and the particular OLC Sum before apportionment and determination of the Tax Charge, CAM Charge or Other Like Charge to be paid by Tenant and for the purposes of computing the Tax Charge, the CAM Charge and such Other Like Charge, the denominator of the GLA Fraction shall not include the GLA of the Majors' Premises and the Junior Majors' Premises. Section 4.09: WHERE RENT PAYABLE AND TO WHOW NO DEDUCTIONS. Rent payable by Tenant under this Lease (whether Minimum Rent, Percentage Rent, or Additional Rent) shall be paid when due without prior demand therefor (unless such prior demand is expressly provided for in this Lease), shall be payable without any deductions or setoffs or counterclaims whatsoever (except for credits expressly permitted by this Lease) and shall be paid by Tenant to Landlord at the payment address of Landlord set forth in the Fundamental Lease Provisions or to such payee and/or at such other place as may be designated from time to time by notice from Landlord to Tenant. At the end of the Term, provided Tenant is not in default, Landlord shall refund to Tenant any amount of excess Rent paid to Landlord and any other amounts due from Landlord to Tenant. Any Rent, or installment thereof, which is not paid by Tenant to Landlord within seven (7) calendar days after it is due shall bear interest at the Default Rate. In the event any installment of Minimum Rent or other sum under this Lease shall not be paid when due, a "Late Charge" of five cents ($.05) per each dollar so overdue may be charged by Landlord, as Additional Rent, for the purpose of defraying Landlord's administrative expenses incident to the handling of such overdue payments. Tenant shall not be subject to any late fees, interest or any other charges due to Tenants failure to pay any rents or charges due under the Lease unless Landlord has notified Tenant of Tenant's failure to pay such rent or charge and Tenant fails to make such payment pursuant to Section 16.01 of this Lease. Provided, however, in no event shall Landlord be required to give Tenant more than two (2) such notices during any twelve (12) consecutive month period prior to Tenant being subject to such late fees, interest or any other charges levied by Landlord due to Tenant's failure to pay such rent or charge when due. Further, if Tenant fails to pay any such rent or charge within said ten (10) day period, then such late fees, interest or any other charges levied by Landlord shall be due and payable from the date such rent or charge first became due. If Tenant pays any installment of Rent by check and such check is resumed for insufficient funds or other reasons not the fault of Landlord, then Tenant shall pay Landlord, on demand, a processing fee of One Hundred Dollars ($100.00) per returned check plus all applicable Late Charges and if three (3) checks are returned for insufficient funds or other reasons not the fault of Landlord, all subsequent payments to Landlord by Tenant shall be in the form of either a certified or cashier's check. ARTICLE 5: TAXES AND ASSESSMENTS Section 5.01: TENANT'S TAX CHARGE. Tenant shall pay to Landlord in each calendar year, as Additional Rent, Tenant's share of all real estate and other ad valorem taxes and other assessments, impositions, excises and other governmental or quasi-governmental charges of every kind and nature (including, but not limited to, general and special assessments, sewer and fire district assessments, foreseen as well as unforeseen and ordinary as well as extraordinary) with respect to the Shopping Center and all improvements thereon or any part thereof. Such taxes and assessments are collectively called the "Taxes" in this Lease. Tenant's share of the Taxes in each calendar year (the "Tax Charge") shall be an amount equal to the product obtained by multiplying the Taxes applicable to such calendar year by the GLA Fraction (with daily proration for any Partial Year). "Taxes" shall also include Landlord's reasonable costs and expenses (including statutory interest, if any) in obtaining or attempting to obtain any refund, reduction or deferral of Taxes. D:\LegaMrendaM\W ORD\PREIT-Leases\CapitalCity\CajunCafeCirill(final). doc Section 5.02: PAYMENT BY TENANT. (a) Payment of the Tax Charge required 'under this Article 5 shall be paid by Tenant in equal monthly installments in advance in such amounts as are estimated and billed by Landlord based upon the total Taxes payable in each calendar year. Landlord may revise its estimate and may adjust such monthly payment at the end of any calendar month. The first such installment shall be due and payable by Tenant on the Rent Commencement Date (prorated for the remaining number of days in the calendar year) and subsequent installments shall thereafter be due and payable at the beginning of each ensuing calendar month during the Term. In addition to the payments provided for in the immediately preceding sentence, if, prior to the Rent Commencement Date, Landlord shall have prepaid all or a portion of the Taxes applicable to the Term, the Tax Charge shall include and Tenant shall reimburse to Landlord the Tenants share of such Taxes (calculated in accordance with the provisions of Section 5.01), on or before the Rent Commencement Date. Landlord shall send to Tenant an invoice setting forth Tenant's share of such Taxes, together with copies of receipted bills evidencing Landlord's payment of such Taxes. Notwithstanding the foregoing, Landlord shall promptly reimburse Tenant for any prepaid taxes that Tenant has paid for time periods after the termination of this Lease. (b) After Landlord has received the Tax bills for each calendar year, Landlord will notify Tenant of (i) the amount of Taxes on which the Tax Charge is based, (ii) the amount of any refund, reduction or deferral expenses, (iii) the total GLA of the Premises and Landlord's Building on which the Tax Charge is based and (iv) the amount of the Tax Charge. If the aforesaid monthly payments on account of the Tax Charge for a given calendar year are greater than Tenant's share of the Taxes payable for a given calendar year, Tenant shall receive a credit from Landlord for the excess against installments of the Tax Charge next becoming due to Landlord or promptly refund to Tenant upon termination of this Lease, and if said payments are less than Tenant's share, Tenant shall forthwith pay Landlord the difference. Section 5.03: TENANT'S ADDITIONAL TAX OBLIGATIONS. (a) Tenant shall pay before delinquency any and all taxes, assessments, impositions, excises, fees and other charges levied, assessed or imposed by governmental or quasi-governmental authority upon Tenant or its business operation, or based upon the use or occupancy of the Premises, or upon Tenant's leasehold interest, trade fixtures, furnishings, equipment, leasehold improvements (including, but not limited to, those required to be made pursuant to Tenant's Work) alterations, changes and additions made by Tenant, merchandise and personal property of any kind owned, installed or used by Tenant in, from or upon the Premises. If the property of Landlord is included in any of the foregoing items, the aforesaid taxes, assessments, impositions, excises, fees and other charges shall nonetheless be paid by Tenant as herein provided. Tenant shall pay, when. due and payable, any sales tax, or other tax, assessment, imposition, excise or other charge now or hereafter levied, assessed or imposed upon or against this Lease or any Rent or other sums paid or to be paid hereunder, or Tenant's, Landlord's or Agent's interest in this Lease or any Rent or other sums paid or to be paid hereunder. Should the appropriate taxing authority require that any tax, assessment, imposition, excise or other charge referred to in this Section 5.03(x) be collected by Landlord or Agent for or on behalf of such taxing authority, then such tax, assessment, imposition, excise or other charge shall be paid by Tenant to Landlord or to Agent monthly as Additional Rent in accordance with the terms of any notice from Landlord or Agent to Tenant to such effect. The taxes, assessments, impositions, excises, fees and other charges described in this Section 5.03(a) shall be the obligation of Tenant and not Landlord or Agent. If any tax, assessment, imposition, excise, fee or other charge covered by this Section 5.03(x) is imposed on Landlord or Agent, Tenant shall pay the same to Landlord within thirty (30) days after receipt of each bill therefor. (b) Nothing herein contained shall be construed to include in Taxes any inheritance, estate, succession, transfer, gift, franchise, corporation, net income or profit tax or capital levy that is or may be imposed upon Landlord; provided, however, that, if at any time during the Term the methods of taxation prevailing at the commencement of the Term shall be altered so that in lieu of or as a supplement to 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 such real estate, or (ii) a license fee measured by the rents receivable by Landlord from the Shopping Center or any portion thereof, or (iii) a tax or license fee imposed upon Landlord which is otherwise measured by or based in whole or in part upon the Shopping Center or any portion thereof, then the some shall be included in the computation of Taxes hereunder, computed as if the amount of such tax or fee so payable were that due if the Shopping Center were the only property of Landlord subject thereto. If any gross receipts tax shall be payable by Landlord, Tenant shall pay the portion thereof attributable to Landlord's receipts from this Lease. Notwithstanding anything to the contrary contained in Section 5.01, Taxes shall not include income taxes imposed upon Landlord from the operation of the Shopping Center or the improvements thereon; provided however, that, if due to a future change in the method of taxation or assessment, any income tax however designated shall be imposed in substitution in whole or in part for any tax, assessment or charge which would otherwise be included within the definition of Tax, such other tax shall be deemed to be included within Taxes to the extent of such substitution. Section 5.04: SPECIAL ASSESSMENTS. (a) in the event that any assessment which is includable within the definition of "Taxes" may legally be payable in a number of installments and Landlord, notwithstanding such legal right, elects to pay such assessment in one payment, then the computation of the Tax Charge for the Year in which such payment is included shall include only that portion of such assessment which is equal to such assessment multiplied by a fraction, the numerator of which shall be the number of Years in that portion of the initial term of the Lease commencing with the Year in which such assessment is levied, assessed or imposed and ending with the last Year in the initial term of this Lease and the denominator of which shall be the maximum number of Years over which Landlord so elected; provided in no event shall the fraction be deemed in excess of 1. D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafeGrill(final).doc 12 (b) Notwithstanding the foregoing to the contrary in (a) above, in the event Tenant shall extend or renew the term of this Lease or enter into a new lease for space in the Shopping Center, Tenant shall pay to Landlord an additional sum equal to Tenant's "proportionate share" of such assessment multiplied by a fraction, the numerator of which shall be the number of years in such extended or renewed term or the term under such new lease (as the case may be) and the denominator of which shall be the maximum number of years over which Landlord would have had the right to pay such assessment, had Landlord so elected; provided, howev-ar, in no event shall the aggregate of the sums paid by Tenant under (a) and (b) of this Section be in excess of the portion of such assessment which Tenant would have been obligated to pay under Section 5.01 of the Lease without the adjustment set forth above. Such sum shall be due and payable on the earlier of the date Tenant extends or renews the ten. or enters into another lease agreement for space within the Shopping Center. The term "proportionate share" as used in this Section shall mean the fraction referred to in Section 5.01 of the Lease. The provisions of this Section shall survive the expiration or earlier termination of this Lease. ARTICLE 6: SERVICES Section 6.01: UTILITIES. (a) During the Term, Tenant shall be solely responsible for and promptly pay all charges for heat, water, electricity, sewer rents or charges, sprinkler charges, A.D.T. or other alarm system, water treatment facility charges, and any other utility used or consumed in the Premises or in providing heating and air conditioning to the Premises together with all connection and service charges and all taxes or other charges levied on such utilities. Should Landlord elect or be required to supply or make available any utility used or consumed at the Premises, Tenant agrees to purchase and pay for same, as Additional Rent, every month in the Term; provided that Tenant shall not be obligated to pay to Landlord an aggregate annual sum therefor in excess of the aggregate annual amount therefor which Tenant would otherwise be obligated to pay for similar utility usage and service as a retail customer of the public utility or municipal authority then supplying such utility to the Shopping Center. In addition, Tenant shall also pay any taxes, surcharges, impositions, penalties or other additional charges applicable to the utility service being supplied, provided that such taxes, surcharges, impositions or other charges are required by law to be coliected from Tenant or are paid by Landlord to its supplier of the utility service in question. Landlord may, at its option, Install an Energy Management System to efficiently conserve utility usage and Tenant agrees to pay monthly, the sum of Fifty ($50.00) Dollars as Tenant's share of the Energy Management System purchase, installation, maintenance and upgrade costs. If permitted by law, Landlord shall have the right at any time and from time to time during the Term to either contract for service from a different company or companies providing utility service to the Shopping Center. Check Meter: To the extent permitted by applicable law, at Tenant's written request Landlord will cause an electric check meter to be installed to monitor Tenant's electrical use in the Premises and Tenant shall reimburse Landlord on demand for the cost of such meter and its installation. From and after the date of such installation, Tenant's electricity component shall be increased or decreased based upon Tenants electric use characteristics as indicated by such meter readings provided that Tenant shall provide meter readings to Landlord at such time period as shall be specified by Landlord to calculate monthly bills therefor. In the event Tenant fails to supply such meter readings, Landlord will have no obligation to adjust Tenant's Electricity Component and Tenant shall thereafter pay the same as specified herein. Landlord shall have the right to verify such meter readings and the accuracy thereof, and in the event of a dispute relating thereto, Tenant shall continue to pay the Electricity Component until the dispute is resolved. (b) In the event the Premises does not presently contain an electric or other utility meter, at Landlord's request, Tenant shall„ within forty-five (45) days after receipt of such request and at its sole cost and expense, install a meter of a type approved in advance by Landlord. Thereafter, at Landlord's request, Landlord and Tenant shall enter into an amendment to this Lease specifying the procedures for reading such meter and the rendering of bills to Tenant for the utility being so metered. In the event Landlord or the local authority, municipality, utility or other body supplies water and/or sewer services and collects for such service and/or consumption, Tenant covenants and agrees to pay the water and sewer charge (both minimum and otherwise) and any other tax, rent, levy, connection fee or meter or other charge which now or hereafter is assessed, imposed or may become a lien upon the Premises, or the Shopping Center, pursuant to law, order or regulation made or issued in connection with the use, consumption, maintenance or supply of water, or the water or sewerage connection or system. Such charges shall be based on metered readings or other formula specified by Landlord. (c) Landlord shall not be liable or responsible for any loss, damage or expense Tenant may sustain or incur by reason of any change, failure, curtailment, interruption, disruption, 'brown out" or defect in the supply or character of any utility supplied to the Shopping Center or Premises or if tho quantity or character of the utility supplied by Landlord or any service provider is no longer available or suitable for Tana:Irs requirements and none of the foregoing shall constitute an actual or constructive eviction or entitle Tenant to any abatement or diminution of Rent or relieve Tenant from any of its obligations under this Lease. Tenant shall operate the Premises in such a manner as shall not waste energy or water or burden or damage the utility lines therein. Notwithstanding the foregoing, if any utilities furnished by Landlord become unavailable for a period in excess of three (3) days solely by reason of Landlord's negligence and Tenant is forced to close its business to the public due to such interruption, then after the third day of such closing, Tenant's Minimum Rent shall abate until such time as service is restored. (d) Landlord may, after thirty (30) days notice to Tenant, cease to furnish any one or more of the utility services to the Premises, without any responsibility to Tenant, except to connect at Tenant's sole cost and expense, Tenant's distribution facilities therefor with another source for the utility service so discontinued. D:UUgal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafeC,fi11(final).doc Section 6.02: APPLICATION FOR UTILITIES. Tenant shall make all appropriate applications to the local utility companies at such times as shall be necessary to insure utilities being available at the demised premises no later than the commencement of the term and pay all required deposits, connection fees and/or charges for meters within the applicable time period set by the local utility company. Section 6.03: TRASH AND GARBAGE REMOVAL. Tenant shall be solely responsible for trash and garbage removal from the Premises, including the placing of all trash and garbage in containers provided by Landlord Cor such purpose. In the event Landlord elects to furnish such service to the tenants in Landlord's Building, Tenant agrees to use only the service provided by Landlord and to pay for such service (including, without limitation, both the cost of leasing containers and the cost of removal) monthly, as Additional Rent, in accordance with a schedule of charges to be established by Landlord (the "Refuse Handling Charge"). In no event shall Tenant be obligated to pay Landlord more for the Refuse Handling Charge than the prevailing competitive rates of reputable independent trash removal contractors for service similar to that provided by Landlord. Tenant shall not dispose of any hazardous materials or environmentally sensitive or restricted item of waste in any trash facilities provided by Landlord, and in lieu thereof, Tenant shall arrange, at its sole cost and expense, to have all such items removed from the Premises and Shopping Center in. accordance with al! Governmental Requirements (hereinafter defined). ARTICLE 7: USE OF PREMISES Section 7.01: SOLE USE AND TRADE NAME. Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously use and operate all of the Premises for the use set forth in the Fundamental Lease Provisions and under Tenant's Trade Name set forth therein. Tenant shall not use or permit the Premises to be used for any other purpose or under any other trade name without the prior written consent of Landlord. Tenant agrees that if Tenant or anyone else claiming through or under Tenant uses the Premises for a use or trade name not set forth in the cundamental Lease Provisions without Landlord's prior written consent, such conduct shall constitute an Event of Default. Tenant shall, at Its expense, procure any and all governmental licenses and permits, including, without limitation, sign permits, required for the conduct of business in or from the Premises and shall, at all times, comply with the requirements of each such license and permit. Landlord does not represent or warrant that it will obtain for Tenant (or that Tenant will be able to obtain) any license or permit. Section 7.02: HOURS. Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously operate, conduct its business within and otherwise use the Premises in accordance with the terms and conditions of this Lease, including, without limitation, the provisions of Section 7.01 hereof and all of the other provisions of this Article 7 (unless the Premises are rendered unfit for occupancy by reason of fire or other casualty, in which event Article 12 shall control). Tenant will keep the Premises open for business to the public at least: (a) every Monday through Saturday from 10:00 a.m. until 9:30 p.m.; and (b) also on Sunday from 11:00 a.m. until 7:00 p.m. (unless prohibited by jurisdictional authorities) as required by Landlord. In addition to any other right or remedy, the Break Point shall be reduced, at Landlord's option, on a per diem basis for each violation of the foregoing and Tenant shall pay to Landlord the Percentage Rent so computed by Landlord. The per diem reduction shall be the amount of the applicable Break Point divided by 365 for each violation. Tenant agrees that Landlord may change the forgoing business hours from time to time to reflect local custom or seasonal shopping patterns provided that such changes are uniformly applied to the majority of retail tenants in Landlord's Building. Tenant shall not be required to keep the Premises open during hours when the Enclosed Mall is closed to the public. The requirements of this Section 7.02 are subject, with respect to any business controlled by governmental regulations in its hours of operation, to the hours or operation so prescribed by such governmental regulations and are further subject to applicable federal, state, and local environmental and other laws, rules, or regulations, guidelines, judgments or orders. Notwithstanding anything to the contrary contained in this Lease, in the event more than two (2) Major Premises and more than eighty (80%) percent of the other Food Court Tenants of the Shopping Center customarily operate fewer hours each day than the hours that Tenant is obligated to maintain as set forth herein, then Tenant may decrease its operating hours to the hours maintained by a majority of such tenants that are maintaining fewer hours than Tenant is obligated hereunder, unless such tenants are operating such lessened hours as a result of fire, destruction or other causes beyond their control, in which event Tenant shall continue to maintain the hours set forth herein. Furthermore, it is understood and agreed that the foregoing shall not be deemed or construed as giving Tenant the right to completely cease operating its business in the Premises and notwithstanding any hours customarily maintained by the applicable Major or such other non-Major retail tenants, Tenant shall not be relieved from Tenant's overall obligation to continuously operate in the Premises throughout the term of this Lease. Section 7.03: OPERATIONAL REQUIREMENTS. Tenant agrees that it: (a) will not in connection with the Premises conduct or permit to be conducted any auction, fire, bankruptcy or going out of business sales, or similar type sale, or utilize any unethical method of business; provided, however, that this provision shall not restrict the absolute freedom (as between Landlord and Tenant) of Tenant to determine its own selling prices nor shall it preclude the conduct of periodic, seasonal, promotional or clearance sales; D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafcGrill(final).doc 14 AMIN (b) will not use or permit the use of any apparatus for sound and/or light reproduction or transmission including loudspeakers, phonographs, radios or televisions, or of any musical instrument in such manner that the sounds so reproduced, transmitted or produced shall be audible beyond the interior of the Premises; will not distribute, or cause to be distributed, at the Shopping Center or in any part thereof any handbills or other advertising or notices; and will not conduct or permit any activities that might constitute a nuisance, or which are prurient or otherwise not generally considered appropriate in accordance with standards of operation for the Shopping Center established by Landlord; will not install any antennae or other communication equipment on the roof of Landlord's Building or anywhere on the exterior of the Premises; (c) will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the confines of the Premises; will not cause or permit strong, unusual, offensive or objectionable sound, sights, odors, fumes, dust or vapors to emanate or be dispelled from the Premises; (d) will not load or permit the loading or unloading of merchandise, supplies or other property, nor ship, nor receive, outside the area and entrance designated therefor by Landlord from time to time; will not permit the parking or standing outside of said area of trucks, trailers, or other vehicles or equipment engaged in such loading or unloading in a manner which may interfere with the use of any Common Areas or any pedestrian or vehicular use and good regional shopping center practice; will use its best efforts to complete or cause to be completed all deliveries, loading, unloading and services to the Premises prior to 9:30 a.m. each day; (e) will not paint or decorate any part of the exterior or interior of the Premises, or change the architectural treatment, fixturing, decor or other appearance of the interior or exterior of the Premises, without first obtaining Landlord's written approval of such painting, decoration or change; and will remove promptly upon order of Landlord any paint, decoration or change which has been applied to or installed upon the exterior or interior of the Premises without Landlord's written approval; (f) will keep the inside and outside of all glass in the doors and windows of the Premises clean and will replace any cracked or broken glass with glass of the same kind, size and quality; will maintain the Premises at its own expense in a clean, orderly and sanitary condition and free of insects, rodents, vermin, and other pests and will use an exterminator designated by Landlord and at times designated by Landlord; will not bum or permit undue accumulation of garbage, trash, rubbish and other refuse; will (subject to Section 6.04) remove the same from the Premises to compactors or other receptacles designated by Landlord, and will keep such refuse in proper containers in the interior of the Premises until so removed from the Premises; (g) will comply with all applicable federal, state and local environmental and other laws, rules, regulations, guidelines, judgments and orders and all recommendations of any public or private agency having authority over insurance rates which now or in the future enact requirements with respect to the use or occupancy of the Premises by Tenant, including, without limitations the requirements imposed by the Americans with Disabilities Act which imposes requirements relating to the design and use of the Premises and the requirements imposed by the Clean Air Act which imposes, among others, requirements relating to the venting, use of, and disposal of chlorofluorocarbons and other refrigerants (collectively the "Governmental Requirements"); will not use or permit the use of any portion of the Premises for any unlawful purpose; and will conduct its business in the Premises in all respects in a dignified manner and in accordance with high standards of store operation; (h) will provide, or cause to be provided all security within its Premises as it deems appropriate (i) will also comply with and observe all rules and regulations established by Landlord from time to time in accordance with Section 8.05; 0) will not permit the use of any portion of the Premises for solicitations, demonstrations or any activities inconsistent with reasonable standards of a first class shopping mall; (k) will not use, or permit to be used, the malls or sidewalks adjacent to the Premises, or any other space outside of the Premises for the display or sale or offering for sale of any merchandise or for any other business, occupation or undertaking; (1) will provide or cause to be provided within the Premises, without cost or expense to Landlord, adequate lighting and security for its licensees, invitees and employees during such periods as the Premises are open for business; (m) will maintain at all times an adequate staff of employees and a complete stock of merchandise and other goods consistent with the use of the Premises; (n) will conduct its business to maximize Gross Sales; (o) will within ninety (90) days before or after the fifth (5th) anniversary of the Rent Commencement Date at Tenant's sole cost and expense remodel refurbish the Premises. Such reraedel4 -refurbishment shall include refinishing, renewing and/or replacing4he-worn floor coverings, worn wall coverings, worn lighting, ceiling tiles, faxfaree, furnishings, at the Premises and, in Landlord's reasonable judgment, all other work necessary to put the Premises in a fresh and like new state of appearance and conditio ; D:\L.egal\BrendaM\WORD\PREIT-L.easeslCapitalCity\CajunCafeC rill(final).doc (p) will conduct its labor relations and its relations with employees in such a manner as to avoid all strikes, picketing, boycotts or hand billing at or about the Premises and the Mall Premises. Tenant further agrees that if, during the period of any work by or for Tenant in or about the Premises in connection with such work there is a strike, picketing, boycotting, hand billing or other activity objectionable to Landlord, Tenant shall remove or cause to be removed from the Premises and the Mall Premises all persons, to the extent not prohibited by law, until such strike, picketing, boycotting, hand billing or other activity ceases and the cause thereof is settled to Landlord's satisfaction; (q) will not, without obtaining Landlord's prior written approval, which approval may be withheld in Landlord's discretion, install any storage or propane tank, whether above or underground, at the Premises or in the Shopping Center and if Landlord shall consent to such installation, Tenant will comply with all applicable laws, regulations and underwriter requirements concerning the installation, operation, and closure of such tank. Upon termination of this Lease, Landlord shall have the option of requiring that Tenant, at Tenant's sole cost and expense, perform tests relating to the condition of such tank and/or remove any tank installed by Tenant and associated contaminated material. Tenant shall be deemed the owner and operator of any tank installed by Tenant. Tenant shall relocate such tank at Landlord's request and at Tenant's expense, to another location acceptable to Landlord; (r) will, if applicable, install and properly maintain a grease trap and either a "black iron duct", or other self- contained venting and exhaust system acceptable to Landlord. Such items shall be installed in a manner, of materials and at a location approved in advance by Landlord and shall, at Landlord's option, connect to trunk facilities, if any, supplied by Landlord for same; (s) will not use the plumbing facilities for any purpose other than that for which they were constructed and will not dispose of any damaging or injurious substance therein; (t) will not install, or permit to be installed or operate any coin or token operated vending machine, game machine, pinball machine, pay telephones, pay lockers, pay toilets, scales, amusement devices and machines for the sale of beverages, foods, candy, cigarettes or other commodities, except solely for use by Tenant's employees in non sales area and not to exceed collectively two (2) machines or other devices; and (u) will not store, display, rent or sell any audio or video cassettes. (v) Sampling Rights: Notwithstanding anything contained herein to the contrary, provided Tenant does not interfere with the adjoining businesses or impede the flow of pedestrian traffic in the common areas, Tenant shall have the right to offer samples of its food products and copies of its menu only in front of and within five (5) feet of the Premises, provided further that Tenant shall keep such area free and clear of any debris resulting from such sampling. Section 7.04: TENANT'S USE OF ROOF, EXTERIOR WALLS, ETC. Tenant shall not, without having obtained the prior written consent of the Landlord, perform any work of any nature whatsoever to the roof, exterior walls or to any of the structural portions of Landlord's Building or the Premises or in areas reserved to Landlord or excluded from Tenant in the Store Design Criteria. Any damage to the Premises or any person or property occurring as a result of a breach of this provision shall be the sole responsibility, cost and expense of the Tenant. Notwithstanding Tenant's rights set forth elsewhere in this Lease, Landlord may erect additional stories or other structures over all or any part of the Premises, Landlord's Building and any other part of the Mall Premises. In connection with such erection, or otherwise, Landlord may relocate Tenant's equipment and may erect temporary scaffolds and other aids to such construction at Landlord's sole cost and expense. In the event Landlord elects to erect additional stores or other structures over all or any part of the Premises, Landlord shall make a good faith effort not to obstruct or to interfere with the conduct of Tenant's business; provided, however, if Landlord's construction renders the Premises unfit for the carrying on of Tenant's business, then and from and after the third (3rd) day of such interference, Tenant's Minimum Rent shall abate until such time as the Premises are again fit for the carrying on of Tenant's business. Section 7.05: OPERATION OF HVAC SYSTEM. Tenant agrees, during the hours the Premises is open for business, to control and/or operate as applicable the HVAC system serving the Premises regardless of whether such equipment was installed by Landlord or Tenant so that conditions inside the Premises are maintained within a range of 72 to 75 degrees Fahrenheit or within such range as may be prescribed by applicable governmental authorities so that heat, ventilation and cooled air are not drained from the Premises or the Enclosed Mall. Section 7.06: EMPLOYEE PARKING AREAS. Landlord may, from time to time, designate that particular portions of the Shopping Center parking areas (the "Employee Parking Areas") are to be used by Tenant and its employees, or other individuals working at or from the Premises. If Landlord does so, Tenant and its employees shall park their vehicles only in the Employee Parking Areas. Tenant shall furnish Landlord with a list of Tenant's and employees' vehicle license numbers within fifteen (15) days after Tenant opens for business in the Premises and receives Landlord's request, and at Landlord's request, the Tenant shall thereafter notify Landlord in writing of any addition, deletion or other change to or from such list within five (5) days after Landlord makes such request. Tenant shall notify each employee in writing of the provisions of this Section 7.06 prior to each employee commencing employment or work at or from the Premises. If Tenant or any of its employees do not park their vehicles in the Employee Parking Areas, Landlord may give Tenant notice of such violation. If Tenant does not cease D:\Legal\Bren&WWORD\PREIT-Leases\CapitalCity\CajunCafeGrill(final).doe 16 • such violation, or cause such violation by the employee to cease, as the case may be, within two (2) days after Landlord's notice of violation is given, Tenant shall pay to Landlord, as Additional Rent, an amount equal to Twenty Five Dollars ($25.00) per day per violating vehicle. For any subsequent violations, said Twenty Five Dollars ($25.00) per day per violating vehicle charge shall commence without the necessity of further notice, and Landlord shall, in addition, have the right to have the violating vehicles towed at Tenants vehicle owners expense. Section 7.07: NON-COMPETITION COVENANT Tenant covenants and agrees with Landlord that through the Term, neither Tenant or any "Affiliate of Tenant" (hereinafter defined) shall directly or indirectly own, operate or manage or have a financial interest in any business which is located in a food court in a regional mall operating under the same trade name displays, diFeGgy or in&869y, MeFrhandir.B OF WhOF g906, 8F sePAGGS, similai: to there said OF G#eFed-GF displayed by (the "Competing Store") within ja&4 <W three (3) miles from the property line of the Shopping Center nearest to the Competing Store (the foregoing covenant being hereinafter called "Tenant's Non- Competition Covenant"). "Affiliate of Tenant" means a proprietorship, corporation, partnership, unincorporated association or other person or entity "controlling", "controlled" by or under common "control" with Tenant. The words "controlling", "controlled" and "control" shall have the meanings given them under the Securities Exchange Act of 1934, as amended. If the Tenant's Non-Competition Covenant is violated, then, in addition to all other rights and remedies, Landlord shall have the right to add the "gross receipts of the Competing Store" (hereinafter defined) to the Gross Sales made by Tenant hereunder for the purpose of computing Percentage Rent. The phrase "gross receipts of the Competing Store" shall be determined by applying the definition of Gross Sales at Section 4.05 to transactions of the Competing Store. Tenant shall include the address and Wentity of its business at the Premises in all advertisements made by Tenant in which the address and identity of any similar local business of Tenant is mentioned and shall not divert from the Premises any transactions or other business which would occur at or from the Premises. Section 7.08: SIGNS AND ADVERTISING. Tenant shall not place or permit to be placed on the exterior of the Premises or windows or in the store front or roof, any sign, banner, decoration, lettering or advertising matter (collectively a "sign") without the Landlord's prior written approval. Tenant shall submit to Landlord reasonably detailed drawings of its proposed signs for review and approval by Landlord prior to utilizing same; however, Tenant may without such approval use in the store front professionally made reasonably sized signs indicating prices, styles and like information. All signs shall be insured and maintained at all times by Tenant in good condition, operating order and repair. Flashing signs are prohibited. Tenant shall install one internally illuminated, individually lettered sign or other type of sign as specified by Landlord above the storefront of the Premises and professionally lettered name signs on its service doors in accordance with the Final Plans or other plans and specifications previously approved by Landlord. Landlord shall have the right, after twenty-four (24) hours prior written notice to Tenant and without liability for damage to the Premises reasonably caused thereby, to remove any items displayed or affixed in or to the Premises which Landlord determines (in its reasonable judgment) to be in violation of the provisions of this Section 7.08. Tenant will keep the storefront sign and display windows in the Premises lighted during all periods that the Shopping Center is open to the public and for one-half hour after required business hours and for such other periods as may be reasonably required by rules and regulations established in accordance with Section 8.05. ARTICLE 8: COMMON AREAS Section 8.01: USE OF COMMON AREAS. (a) Tenant and its employees and invitees are, except as otherwise specifically provided in this Lease, authorized, empowered and privileged during the Term to use the Common Areas for their respective intended purposes in common with other persons. Tenant's right to use any meeting room or auditorium, if any, in the Common Areas shall be subject to such schedules and payment of such fees or charges therefor as Landlord may from time to time adopt governing the use thereof. (b) Landlord shall at all times have the right to utilize the Common Areas including, without limitation, the Enclosed Mall for promotions, exhibits, carnival type shows. rides, outdoor shows, displays, automobile and other shows or events, the leasing or licensing of kiosks, push carts and food facilities, landscaping, seating areas, seasonal displays, decorative items, and any other use which, in Landlord's judgment, tends to attract customers to, or benefit the customers of the Shopping Center. Section 8.02: COMMON AREA MAINTENANCE SUM. (a) The term "Common Area Maintenance Sum" (or the "CAM Sum") shall be charged and prorated in the manner hereinafter set forth and shall mean all sums incurred in a manner deemed by Landlord to be reasonable and appropriate and for the best interests of the Shopping Center in connection with the operation, repair and maintenance of the Common Areas and the Shopping Center (and any additions thereto), including, without limitation, the costs and expenses of: W operation, inspection and/or maintenance of the storm, sanitary, electrical, gas, steam, water, telephone systems, lighting system (including poles, bulbs, and fixtures), and other utility systems, including pipes, ducts D:\Legat\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafe?-mll(fmal).doc and similar items; directional signs and other traffic signals, markers, controls, signs (including all identification signs) both on and off site: (ii) snow, ice, trash and garbage removal, pest control, and cleaning, painting, sweeping, striping and repaving all parking surfaces, services areas and other portions of the Common Areas; (iii) operation and/or maintenance of all heating, ventilating and air cooling and other utility systems, emergency water and sprinkler, security, life safety systems, pumping systems, electrical systems and all escalator and elevator systems and any other items, facilities, equipment, and systems furnished by Landlord as part of the Common Areas; (iv) premiums and other charges for insurance to the extent provided by Landlord, including without limitation, liability insurance for personal and bodily injury, death and property damage; insurance covering Landlord's Building and the Common Areas against fire and extended coverage perils; theft or casualties; workers' compensation; plate glass insurance for glass exclusively serving the Common Areas; boiler insurance (if carried); losses borne by Landlord as a result of deductibles carried by Landlord under an insurance policy or self insurance by Landlord; Landlord's risk management expenses and rent insurance provided by Landlord pursuant to Section 11.02; (v) operation and/or maintenance of gazebos, fountains, art features, sculptures, fencing and similar items located within the Common Areas and interior and exterior planting, replanting and replacing of all flowers, shrubbery, plants, trees and other landscaping within the Common Areas; (vi) operation and/or maintenance of Landlord's Building's structure, including, without limitation, floors, doors, walls, ceiling, roofs, skylights, and windows; (vii) maintenance and depreciation of all machinery and equipment used in the operation or maintenance of the Common Areas (including but not limited to all escalators, elevators and other vertical transportation (if any), security vehicles and equipment) and all personal property taxes and other charges incurred in connection with such machinery and equipment; (viii) all license and permit fees, any and all parking surcharges that may result from any environmental or other laws, rules, regulations, guidelines or orders; (ix) the expense of installation and operation of loudspeaker systems, music program services, cable television systems, or similar audio or video transmission systems; (x) personnel, including without limitation, cleaning and maintenance personnel, Landlord's on-site management staff (which includes the General Manager, Assistant Manager, secretaries and bookkeepers) together with the uniforms, payroll, payroll taxes and employee benefits of all such personnel; (xi) the expense of security personnel and equipment, including, without limitation, uniforms as well as transportation and surveillance equipment; (xii) all costs, charges, and expenses incurred by Landlord in connection with any change of any company providing electricity service, including, without limitation, maintenance, repair, installation, and service costs associated therewith; (xiii) all expenses incurred by Land?ord at the same rate per unit Landlord charges to tenants, in connection with refuse disposal, water and sewer, gas, steam, exterior site lighting, electricity, air conditioning, heating, and other utilities, including, without limitation, any and all usage, service, hook-up, connection, availability and/or standby fees or charges pertaining to same; (xiv) Landlord's supervisory charge in an amount equal to fifteen percent (15%) of the total aggregate cost of operating and maintaining the Common Areas, ?ncluding but not limited to those things listed in Section 8.02(a); and (xv) expanding, adding to or reconfiguring the Common Areas (or any portion thereof). (b) Notwithstanding the foregoing, the CAM Sum shall not include: (i) the expense of any repair or replacement required of Landlord pursuant to the reconstruction obligations of Section 12.01; (li) depreciation (other than depreciation as above specified); and (iii) any utilities which are directly metered or submetered to tenants in Landlord's Building. (c) Notwithstanding anything contained in this Lease to the contrary, in calculating the "CAM Charge" (defined in Section 8.03), the CAM Charge may be based upon Landlord's estimates, which estimates and payments thereon shall be subject to adjustments in future billings to Tenant based on Landlord's actual cost, it being understood and agreed that in determining actual costs, Landlord in its sole discretion, will make allocations of certain items between the Enclosed Mall and other portions of the Shopping Center of which the Enclosed Mall is a part, which need not be based on relative size or use. (d) Landlord may cause any or all maintenance services for the Common Areas to be provided by an independent contractor or contractors or others and tha costs therefor shall be included in the CAM Sum. Except as provided hereinabove, none of the costs for the origi: ial construction and installation of the Common Areas shall be included in the CAM Sum. (e) If Landlord from time to time acquires, tir makes available, additional land or improvements for parking or other Common Area purposes, the CAM Sum shall also include all costs and expenses incurred by Landlord in connection with the operation or maintenance of said additional land and improvements. (f) The words "maintenance", "maintain" or "maintaining" as used in this Article 8 includes, without limitation, all repairs, replacements and other work and service of any type whatsoever. Section 8.03: CAM CHARGE. (a) Tenant shall pay to Landlord, as Additional Rent, Tenant's share of the CAM Sum in the manner set forth D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\Cajun(:afeGrill(fmal).doc 18 ® • in Section 8.03(b) and (c) below. Tenant's share of the CAM Sum for each calendar year shall be an amount equal to the CAM Sum for that period multiplied by the GLA Fraction (the "CAM Charge"). For any Partial Year, the CAM Sum will be multiplied by the Partial Year Fraction with the result multiplied by the GLA Fraction. (b) Tenant shall pay Landlord on the Rent Commencement Date and on the first day of each calendar month in the Term thereafter amounts estimated by Landlord to be Tenant's monthly share of the CAM Sum. Landlord may adjust said amount at the end of any calendar month on the basis of Landlord's experience and reasonably anticipated costs. (c) Following the end of each calendar year, Landlord shall furnish Tenant a statement covering the calendar year just expired, certified as correct by an independent public accountant or an authorized representative of Landlord, showing the CAM Sum and the amount of the CAM Charge and the payments made by Tenant with respect thereto as set forth in the preceding Section 8.03(b). If Tenant's aggregate monthly payments on account of the CAM Charge are greater than Tenant's share of the CAM Sum, Tenant shall receive a credit for the excess against monthly installments on account of the CAM Charge next becoming due to Landlord or Immediately refunded to Tenant within thirty (30) days N the Rent Term has expired and Tenant is not Indebted to Landlord; if said payments are less than said share, Tenant shall pay to Landlord the difference forthwith. (d) Landlord may have heretofore elected to spread, and may hereafter elect to spread, the amount of any of the expenses of the CAM Sum over such period of years as Landlord shall determine by amortizing them over such periods instead of including such expenses entirely in the year in which expended or incurred, in which event, the annual amortization amount shall be deemed to be an expense incurred during each year of the amortization period, notwithstanding that such expenses may have been expended or incurred prior to the execution of this Lease. (e) Tenant's CAM charge for the first full year shall not exceed $8.27 per square foot. Notwithstanding anything contained herein to the contrary, Landlord agrees that Tenant's maximum payment of its CAM Charge for the second twelve (12) month Year shall not exceed the first such Year's payment plus five percent (5N) of such payment; and further, except as set forth below, that any subsequent Year's payment shall not exceed the immediately preceding Year's payment plus five percent (W of such payment. In making the aforesaid calculations, Common Area Costs relating to utilities, insurance, renovations, snow removal and security shall be excluded from the limitation for each Year and Tenant shall pay its pro rata share of such items without limit. Section 8.04: CHANGES BY LANDLORD. As between Landlord and Tenant, Landlord shall at all times have the right and privilege of determining the nature and extent of the Common Areas and of making such changes, rearrangement, additions or reductions therein and thereto from time to time which in its opinion are deemed to be desirable or which are made as a result of any federal, state or local environmental or other law, rule, regulation, guideline, judgment or order, including but not limited to, the location, relocation, enlargement, reduction or addition of driveways, entrances, exits, automobile parking spaces, employee and customer parking areas (if any), the direction and flow of traffic, installation of landscaped areas, and any and all other facilities of the Common Areas. Landlord (or others entitled to) may from time to time make alterations, renovations, reductions, or additions anywhere within Landlord's Building or to the Common Areas or other part of the Shopping Center or any lands or improvements added thereto, construct additional buildings or improvements on the Common Areas or elsewhere and make alterations thereto, build additional stories on any buildings, construct multi-level or elevated or underground parking facilities, and construct roof, walls, and any other improvements over, or in connection with any part of, or all of, the Common Areas in order to enclose same. Landlord agrees that it shall not substantially alter the Common Areas of the Shopping Center to an extent which substantally interferes with the physical ability of Tenant to continue its normal business activities. Section 8.05: RULES AND REGULATIONS. Tenant agrees that Landlord may establish and from time to time change, alter and amend, and enforce against Tenant, such reasonable rules and regulations as Landlord may deem necessary or advisable for the proper and efficient use, operation and maintenance of the Common Areas, provided that all such rules and regulations affecting Tenant and its invitees and employees shall apply equally and without discrimination to substantially all of the retail tenants in Landlord's Building or substantially all retail tenants engaging in certain acts or of a certain use. The rules and regulations herein provided for may include, but shall not be limited to, the hours during which the Common Areas shall be open for use. Section 8.06: LANDLORD'S MAINTENANCE AND CONTROL. Landlord agrees to maintain and operate, or cause to be maintained and operated, the Common Areas in good and reasonable condition and manner and in keeping with industry standards for similarly situated enclosed regional malls. Landlord shall, as between Landlord and Tenant, at all times during the Term have the sole and exclusive control, management and direction of the Common Areas, and shall provide or cause to be provided, security in the Common Areas at a level determined by Landlord (and Tenant shall provide, or cause to be provided, adequate security within Tenant's Premises as Tenant deems appropriate). Landlord may at any time and from time to time during the Term exclude and restrain any person from use or occupancy of any of the Common Areas, excepting, however, Tenant and other tenants of Landlord and bona fide invitees of either who make use of said areas for their intended purposes and in accordance with the rules and regulations established by Landlord from time to time with respect thereto. The rights of Tenant in and to the Common Areas shall at all times be subject to the rights of others to use the same in common with Tenant, and it shall be the duty of Tenant to keep all of the Common Areas free and clear of any obstructions or D:Uxpl\BrendaMNWORD\PREIT-Leases\CapitalCity\CajunCafe.Cirill(fwal).doc 19 interferences created or permitted by Tenant or resulting from Tenant's operation. Landlord m8y at any time and from time to time close all or any portion of the Common Areas to make repairs or changes, or to such extent as may, in the opinion of Landlord, be necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein, to close temporarily any or all portions of the Common Areas and to do and perform such other acts in and to Common Areas as, in the exercise of good business judgment, Landlord shall determine to be advisable with a view to the improvement of the convenience and use thereof by occupants and tenants, their employees and invitees. ARTICLE 9: PROMOTION OF SHOPPING CENTER AND MINIMUM ADVERTISING Section 9.01: MARKETING SERVICE. (a) Landlord has established or will establish an advertising and promotional service (herein called the "Marketing Service") to furnish and maintain advertising and sales promotions which, in Landlord's judgment, will benefit the Shopping Center. Landlord has established or will establish a fund (the "Marketing Service Fund") to be used by Landlord to pay all costs and expenses associated with the formulation and carrying out of an ongoing program for the advertising and other promotion of the Shopping Center. The program may include, without limitation, special events, shows, displays; signs, marquees, decor, seasonal events, advertising for the Shopping Center, promotional literature and other activities to market the Shopping Center based on sums collected from tenants. Tenant shall pay, as its share of the cost and expense of the Marketing Service for the initial Year of the term of the Lease, the amount set forth in the Fundamental Lease Provisions (herein called the "Marketing Service Charge"). The Marketing Service Charge for any Partial Year shall be determined by multiplying Tenant's Marketing Service Charge by the Partial Year Fraction. The Minimum Advertising Charge for any Partial Year shall be determined by multiplying Tenant's Minimum Advertising Charge by the Partial Year Fraction. (b) Landlord may appoint an advisory committee, composed at least of a representative of Landlord, a representative of each Major, and a representative from each of six (6) tenants in Landlord's Building to review the advertising and other promotional activities provided. Such committee shall function solely in an advisory capacity subject to Landlord's discretion, (c) In addition, Landlord may use the Marketing Service Fund to defray the costs of administration of the Marketing Service, including, without limitation, the salary and benefits of a marketing director and related administrative personnel, rent and insurance. (d) Notwithstanding the provisions of this Article 9, Landlord may, at any time, in its sole discretion, decide that Landlord will, on and after a certain date thereafter, no longer provide the Marketing Service. Landlord may cease performing the Marketing Service on the date so specified by the Landlord, provided that nothing herein shall require Landlord to breach or fail to perform any agreement or obligation it has made with or to any third person in connection with the Marketing Service. If Landlord determines that it is or may be at risk of any such breach or failure, Landlord need not cease performing the Marketing Service until Landlord determines that such risk has passed. (e) in Me event that dUFiRg the TOM #;eFe 46 (1) aRy FeReyaiieR Of the 68RdIGFd's Rldlildill@ OF the rinsleGed YM;r.h also *nyalyes the Fenevalies of the Me Ris ef fifty pemeRt (50%) 9F FneFe of the existing Wants' spaGe6 Intentionally Deleted (f) Landlord reserves the right, in its sole discretion, to recommence providing the Marketing Service at any time after Landlord ceased providing the same. Section 9.02: TENANT'S MINIMUM ADVERTISING OBLIGATION. (a) In addition to, and not in lieu of the Maiiceting Service Charge, Tenant agrees to participate in joint advertising programs comprised of advertising media used by Landlord to advertise the Shopping Center and tenants thereof (herein called "Tenant's Minimum Advertising Obligation"). The initial annual expense to Tenant for such joint advertising programs (the "Minimum Advertising Charge") has been computed to be the sum and/or at the rate per square foot of GLA of the Premises set forth in the Fundamental Lease Provisions as the same may from time to time be adjusted in accordance with the provisions of Section 9.03 hereof. The Minimum Advertising Charge for any Partial Year shall be determined by multiplying Tenant's Minimum Advertising Charge by the Partial Year Fraction. (b) Tenant shall advise Landlord's marketing director annually (or more frequently if requested) of the joint advertising programs in which Tenant intends to participate in each calendar year. If Tenant fails to furnish advertising copy as required, or for any other reason fails to participate in any joint advertising program for which it has been committed. Tenant shall within sixty (60) days after the end of such calendar year, pay to Landlord the difference between the amount properly spent by Tenant in fulfillment of Tenant's Minimum Advertising Obligation and the Minimum Advertising Charge plur. one half peFeen! (112%) of Grzess Sales for the Year ending in such calendar year. Funds paid to D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafetnill(fmAl).doc 20 0 the Landlord pursuant to the preceding sentence shall be spent for the promotion of the Shopping Center in SUCK manner as Landlord may determine. Section 9.03: ADJUSTMENTS AND CHARGES. (a) The Marketing Service Charge and Minimum Advertising Charge shall be adjusted annually by a percentage equal to the lesser of three percent (3%) or the percentage increase or decrease in the electronic, print and outdoor advertising rates of the media used for advertising and promotions in the preceding calendar year in the media market in which the Landlord's Building is located; provided, however, that the Marketing Service Charge and the Minimum Advertising Charge shall not be less than as set forth in the Fundamental Lease Provisions. The calendar year in which the Rent Commencement Date occurs shall be considered the base calendar year and every other calendar year thereafter a revised base calendar year in computing the adjustments hereunder. (b) The Marketing Service Charge and the Minimum Advertising Charge shall be paid in equal monthly installments, in advance, on the first day of each month, except that if the Rent Commencement Date is not on the first day of a calendar month, then that portion of the Marketing Service Charge and the Minimum Advertising Charge which is attributable to the days in that first partial calendar month shall be paid in advance on the Rent Commencement Date. (c) Landlord may charge all costs and expenses of providing the Marketing Service in any calendar year against the budget therefor. Said costs and expenses may include without limitation the following: (i) the services of a marketing director and all staff and outside consultants (including professional marketing service organization) deemed necessary by Landlord to carry out effectively the marketing and public relations objective of the Marketing Service, including without limitation all payroll, payroll taxes and employee benefits of any such director and staff; (ii) such reasonable amount of space within the Landlord's Building as may be necessary to carry out the Marketing Service, the rental therefor to be comparable to the rental for similarly sized commercial space; (iii) all actual costs incurred in advertising and promoting the Shopping Center, including without limitation radio, newspaper, television, direct and indirect :osts of services, art work, copy, printing, paper, stationery and supplies; and (iv) such office equipment, utilities and telephones as may be deemed necessary by the marketing director. (d) The marketing director and consultants shall be under the exclusive control and supervision of Landlord, and Landlord shall have the sole authority to employ and discharge them or either of them and the staff of the director. (e) Notwithstanding the apportionment of amounts to the above-described marketing and advertising funds as set forth in both this Article 9 and in Section (k) of the Fundamental Lease Provisions, Landlord hereby reserves the right from time-to-time to allocate the total amount received by Landlord for such funds in any manner whatsoever Landlord, in its sole discretion, deems appropriate, so long as any anJ all such funds attributable to said marketing and advertising funds are used only to defray the cost of the marketing and advertising programs initiated by Landlord and to market advertise and promote the Shopping Center. Section 9.04: DISSOLUTION OF MERCHANT'S ASSOCIATION. In the event there presently exists a merchant's association in use in the Shopping Center, Tenant agrees that Landlord shall have the unilateral right to take any steps required to terminate the same and to replace such merchant's association with a marketing service, promotion fund, advertising fund, or any other similar entity designated by Landlord in which event, upon notice to Tenant, Tenant shall automatically be deemed a member thereof and shall contribute to the same the amount which Tenant immediately prior to such termination was required to contribute to the merchant's association. Further, Tenant does hereby irrevocably assign to Landlord all of Tenant's voting rights contained in any bylaw or other similar document forming or governing the a iministration of any such merchant's association. ARTICLE 10: CONSTRUCTION WORK Section 10.01: APPROVALS AND STANDARDS. Tenant shall not perform any construction or make any alterations or changes in or to the Premises at any time during the Term (herein sometimes collectively called "Construction Work") without Landlord's prior written consent. In no event shall Tenant make or cause to be made any penetration through any roof, floor or exterior or corridor wall without the prior written consent of Landlord. To the extent same does not conflict with or contravene the intent and terms of Section 11.04 below, Tenant shall be directly responsible for any and all damages, including, without limitation, damages to Landlord's Building, the Premises and the premises cf other tenants in Landlord's Building resulting from any of Tenant's Construction Work, whether or not Landlord's consent therefor was obtained. Any and all Construction Work which is consented to by Landlord shall be performed in accordance with (a) plans and specifications prepared by a licensed architect, or engineer and approved in writing by the Landlord before the commencement of the Construction Work, (b) all necessary governmental approvals and permits, which approvals and permits Tenant shall obtain at its sole expense, and (c) all applicable laws, rules, regulations and building codes relating thereto. All Construction Work shall conform to Landlord's Store Design Criteria and shall be :performed in a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shall at all times be a complete unit except during the period of the Construction Work. Any Construction Work performed by Tenant without Landlord's consent shall be returned to its original condition at Tenant's expense upon request by Landlord. Tenant shall perform any Construction Work in such a D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafeGrill(final).doc 21 • manner as not to obstruct the access to the premises of any other occupant to the Enclosed Mall nor obstruct other Common Areas. Notwithstanding anything set forth in Section 10.01 to the contrary, Tenant may without Landlord's consent, make alterations to the interior of the Premises which do not alter, modify or in any other manner whatsoever affect the structural portions of the Premises (including, but not limited to, thy: storefront) and/or the structural integrity of the building of which the Premises shall form a part and/or the plumbing, electrical, heating, ventilating or air conditioning or mechanical systems and installations in the Premises, provided that Eny such alteration (or series of such related alterations) does not involve a cost or aggregate cost (as the case may be) in excess of Ten Thousand Dollars ($10,000.00) per Year. Section 10.02: INSURANCE AND RECONSTRUCTION. In the event Tenant shall perform any permitted or required Construction Work, none of the Construction Work need be insured by Landlord under such insurance as Landlord may carry upon the Landlord's Building nor shall Landlord be required under any provisions of this Lease relating to reconstruction of the Premises to reconstruct or reinstall any such Construction Work. ARTICLE 11: INDEMNITY AND INSURANCE Section 11.01: TENANT'S INSURANCE. (a) Tenant further covenants and agrees that from and after the date of delivery of the Premises from Landlord to Tenant, Tenant will carry and maintain, at its sole cost and expense, the following types of insurance, in the amounts specified and in the form hereinafter provided for. (i) Commercial General Liability Insurance. Commercial general liability insurance covering the Premises and Tenant's use thereof against claims for "personal and advertising injury' and "bodily injury" or death, "property damage" and 'product/completed operations" liability (as the aforesaid terms are defined in such policy) occurring upon, in or about the Premises and Tenant's activities in the Common Area, such insurance to afford protection to the limit of not less than $3,000,000 regardless of the number of persons claiming injuries or damages arising out of any one occurrence. The insurance coverage required under this Section 11.01(axi) shall, in addition, extend to any liability of Tenant arising out of the indemnities provided for in Secticn 11.03. Therefore, such policy shall not contain any exclusion for contractual liability coverage for any of the foregoing coverages. The general aggregate limits under the liability insurance policy or policies must apply separately to the Premises and to Tenant's use thereof. The certificate of insurance evidencing the commercial general liability form of policies shall specify on the face thereof that the limits of such policies apply separately to the Premises. (ii) Boilers. Boiler and machinery insurance in adequate amounts on all fired objects and other fired pressure vessels and systems serving the Premises (if any); and if the said objects and the damage that may be caused by them or result from them are not covered by Tenant's extended coverage insurance, then such insurance shall be in an amount not less than $250,000 and be issued on a replacement cost basis. (iii) Tenant Leasehold Improvements and Property. Insurance covering all of the items included in Tenant's leasehold improvements, heating, ventilating and air conditioning equipment and all other improvements and betterments installed by (or demised by this Lease to) Tenant, and all trade fixtures, merchandise and personal property from time to time in, on or upon the Premises, and alterations, additions or changes made by Tenant pursuant to Article 10, in an amount not less than one hundred percent (100%) of their full replacement cost from time to time during the Term, providing special form coverage, including but not limited to, protection against the perils included with the standard state form of fire and broad form extended coverage insurance policy, together with insurance against sprinkler damage, vandalism and malicious mischief. Any policy proceeds from such insurance shall be held in trust by Tenant's insurance company for the repair, reconstruction and restoration or replacement of the property damaged or destroyed unless this Lease shall cease and terminate under the provisions of Article 12. (iv) Workers' Compensation And Employer's Liability. Workers' Compensation and Employers Liability insurance affording statutory coverage and containing statutory limits with the Employers Liability portion thereof to have minimum limits of $1,000,000.00. (v) Business Interruption Insurance. Business Interruption Insurance equal to not less than fifty percent (50%) of the estimated gross earnings (as defined in the standard state form of business interruption insurance policy) of Tenant at the Premises which insurance shall be issued on an "all risks" basis (or its equivalent). (b) All policies of insurance provided for in Section 11.01(a) shall be issued by insurance companies with a financial rating of not less than A VII as rated in the most current available "Best's Insurance Reports", and qualified to do business in the state in which Landlord's Building is loi:ated. Tenant's obligation to provide the insurance* coverage specified in Section 11.01(a)(1) above shall not be affected by any deductible with respect to such policy or self insurance retention maintained by Tenant. Each and every such policy, except for Workers' Compensation and Employers Liability insurance: (i) shall be issued in the name of Tenant and shall name as an additional insured each of Landlord, Agent and any other parties in interest from time to time designated in writing by notice from Landlord to Tenant; (ii) shall be for the mutual and joint benefit and protection of Landlord and Tenant and any such other parties in interest; (iii) shall (or a certificate thereof shall) oe delivered to each of Landlord and any such other parties in D:\Legal\BrendaM\WORD\PRErr-Leases\CapitalCity\CajunCafe(irill(final).doc 22 o interest within thirty (30) days prior to the expiration of each such policy, and, as often as any such policy shall expire or terminate. Renew (iv) shall contain a provision al or additional policies shall be procured and maintained by Tenant in like manner and to like extent; least thirty (30) days notice in writing in advance of any material change, cancellation, termination or other lapse,or ' the effective date of any reduction in the amounts of insurance; (v) shall be written as a primary policy which does not contribute to and is not in excess of coverage which Landlord may tarty; and (vi) shall contain a provision that Landlord and any such other parties in interest, although named as an additional insured, shall nevertheless be entitled to recover under said policies for any loss occasioned to it, its servants, agents and employees by reason of the negliger ce of Tenant. (c) Any insurance provided for in Section 1 1.01(a) may be maintained by means of a policy or policies of blanket insurance, covering additional items or locations or insureds, provided, however, that: (i) Landlord and any other parties in interest from time to time designated by Landlord to Tenant shall be named as an additional insured thereunder as its interest may appear; (ii) the coverage afforded Landlord and any such other parties in interest will not be reduced or diminished by reason of the use of such blanket policy of insurance; (iii) any such policy or policies (except any covering the risks referred to in Section 11.01(a)(i)] shall specify therein (or Tenant shall furnish Landlord with a written statement from the insurers under such policy specifying) the amount of the total insurance allocated to the Tenant's improvements and property more specifically detailed in Section 11.01(a)(iii); and (iv) the requirements set forth in this Article 11 are otherwise satisfied. (d) Tenant agrees to permit Landlord at all reasonable times to inspect the policies of insurance of Tenant with respect to the Premises for which policies or copies thereof are not delivered to Landlord. Section 11.02: LANDLORD'S INSURANCE. (a) Landlord shall at all times during the Term carry and maintain the following types of insurance in the amounts specified and in the form hereinafter provided for: (i) Commercial General Liability Insurance. Commercial general liability insurance against claims for property damage and bodily injury or death, such insurance to afford protection to the limit of not less than $5,000,000 in respect to property damage, injury or death to any number of persons arising out of any one occurrence. (ii) Landlord's Real and Personal Property. Insurance covering the Landlord's Building [exclusive of any tenant improvements and betterments and property required to be insured by Tenant pursuant to Section 11.01(a)(iii)] in an amount not less than one hundred percent (100%) of full replacement cost (exclusive of the cost of excavations, foundations and footings), from time to time during the Term, providing protection against perils included within the standard state form of special form coverage insurance policy, together with insurance against sprinkler damage, vandalism and malicious mischief, and such other risks as Landlord may from time to time determine and with any such deductibles as Landlord may from time to time determine. (iii) Rent Insurance. Rent insurance with respect to the premises of the tenants in the Shopping Center if available at a cost which Landlord in its sole judgment deems reasonable, against loss of rents in an aggregate amount equal to not more than twenty-four (24) times the sum of (i) the monthly requirement of Minimum Rent of such tenants, plus (ii) the average monthly amount estimated from time to time by Landlord to be payable by such tenants as Percentage Rent and as Additional Rent pursuant to their leases. (b) Any insurance provided for in Section 11.02(a) may be maintained by means of a policy or policies of blanket insurance, covering additional items or locations or insureds provided that the requirements of Section 11.02(a) are otherwise satisfied. (c) Tenant shall have no rights in any policy or policies maintained by Landlord and shall not be entitled to be named an insured thereunder, by reason of payment, as part of the CAM Sum of its share of Landlord's premiums for the insurance provided for in this Section 11.02 or otherwise. Section 11.03: INDEMNIFICATION BY TENANT Except for Landlord's negligence or misconduct, Tenant agrees that Landlord shall not be liable for any damage or liability of any kind or for any injury to or death of persons or damage to property of Tenant or any other person during the Term, for any cause whatsoever (including without limitation the acts or omissions of Landlord or Agent, bursting pipes and smoke) by reason of the construction, use, occupancy or enjoyment of the Premises by Tenant or any person therein or holding under Tenant or happening upon or about the Premises and Tenant for the purposes of this Section 11.03 shall be deemed to be in exclusive control of the Premises during the Term. Tenant does hereby agree to and shall protect, defend, indemnify and save harmless Landlord and Agent from all claims, actions, demands, costs and expenses and liability whatsoever, including reasonable attorneys fees, or. account of any such real or claimed event, damage or liability, and from all liens, claims and demands arising from (a) any occurrence in, or about the Premises, and/or (b) Tenant's activities in the Common Areas, and/or (c) arising out of the construction, use, occupancy or enjoyment of the Premises, and/or (d) occasioned in whole or in part by any act or omission of Tenant, its agents, contractors, servants, employees or invitees, regardless of where occurring. Tenant further agrees that the obligation to defend Landlord and Agent continues regardless of allegations of negligence or other fault on th,a part of Landlord or Agent until such negligence or fault has been established in a final adjudication. Tenant shall nol, however, be liable for damage or injury occasioned by the negligence or willful act of the Landlord which is the cause if damage or injury unless Tenant is required by this Lease to D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafeCnill(fmal).doc 23 • assume or insure against such damage or injury. Tenant's obligations under the aforesaid indemnity shall be limited to the amount of commercial general liability insurance coverage which Tenant is required to carry. Except for the negligence or willful misconduct of Tenant, or its directors, officers, employees, agents, servants, licensees or contractors ("Tenant and/or its Agents"), Landlord hereby agrees bo indemnity, defend, and save Tenant and/or its Agents harmless from and against any and all liability, claims, demands, damages, expenses, fees (including reasonable attorneys fees), fines, penalties, suits, proceedings, action: and causes of action of any and every kind or nature, which either (1) arise from or in connection with the possession, use, occupation, management, repair, maintenance or control of the Common Area or any portion thereof; (2) arise from, or in connection with any negligent act or omission of Landlord, or its directors, officers, employees, agents, servants, licensees, or contractors ("Landlord and/or its Agents"); (3) result from any default, breach, or violation of this Lease or any provisions of this Lease by Landlord and/or its Agents. Section 11.04: MUTUAL WAIVERS. Landlord and Tenant hereby waive any rights eaci may have against the other on account of any loss or damage occasioned to Landlord or Tenant, as the case may be, their respective property, the Premises, its contents or to the other portions of Landlord's Building, arising from any risk covered by special form coverage insurance, and to the extent of recovery under valid and collectible policies of such insurance, provided that such waiver does not invalidate such policies or prohibit recovery thereunder. The parties hereto each, on behalf of their respective insurance companies insuring the property of either Landlord or Tenant against any such loss, waive any right of subrogation that such insurers may have against Landlord or Tenant, as the case may be. Section 11.05: COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS. Subject to Landlord's obligations in Section 13.01 to maintain the structure of the Premises, Tenant agrees at its own expense to comply with all Governmental Requirements as well as the recommendations and requirements, with respect to the Premises, or its use or occupancy, of the insurance underwriters or insurance rating bureau or any similar public or private body and any governmental authority having jurisdiction with respect to the use or occupancy of Landlord's Building, including, but not limited to, installation of fire extinguishers or automatic detection, suppression systems and/or life-safety systems, any changes, modifications or alterations in the detection and/or suppression systems or additional detectors and/or sprinkler heads or the location of partitions, trade fixtures, or other contents of the Premises. Landlord shall not materially change the dimensions of the Premises or materially affect access to the Premises from the Landlord's Building unless required to make any such changes by reason of any federal, state or local environmental or other law, rule, regulation, guideline, judgment or order. Section 11.06: EFFECT ON LANDLORD'S INSURANCE. Tenant shall not do or suffer to be done, or keep or suffer to be kept, anything in, upon or about the Premises which will contravene Landlord's policies insuring against loss or damage by fire or other hazards, or which will prevent Landlord from procuring such policies in companies acceptable to Landlord at regular rates or which will in any way cause an increase in the insurance rates for any portion of the Shopping Center. If Tenant violates any prohibition provided for in the first sentence of this Section 11.06, Landlord may, without notice to Tenant, correct the same at Tenant's expense. Tenant shall pay to Landlord as Additional Rent forthwith upon demand the amount of any increase in the premiums for insurance resulting from any violation of the first sentence of this Section 11.06, even if Landlord shall have consented to the doing of or the keeping of anything on the Premises which constituted such a violation (but payment of such Additional Rent shall not entitle Tenant to violate the provisions of the first sentence of this Section 11.06). Section 11.07: LIMIT OF LANDLORD'S RESPONSIBILITY. Landlord shall not be responsible or liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying space adjoining the Premises or any other part of the Shopping Center or Landlord's Building, or for any loss or damage resulting to the Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes or other utility lines or for any damage or loss of property within the Premises from any cause whatsoever. Such limitation of responsibility and liability shall not, however, apply to Landlord's willful acts or negligent omissions, except to the extent the same are waived or released by Tenant pursuant to Sections 11.03 or 11.04. ARTICLE 12: DAMAGE OR DESTRUCTION Section 12.01: LANDLORD'S DUTY TO RECONSTRUCT. In the event the Landlord's Building is damaged or destroyed by any of the risks referred to in Section 11.02(a)(ii) against which Landlord is obligated to procure insurance, Landlord shall (subject to being able to obtain all necessary permits and approvals therefor, including without limitation permits and approvals required from any agency or body administering environmental laws, rules or regulations), within one hundred twenty (120) days after such damage or destruction (unless Landlord terminates this Lease pursuant to Section 12.03), commence to: (a) repair or reconstruct Landlord's Building and (b) repair or reconstruct the structural floor stab, demising wall studs (without drywall) and roof (or floor slab above) as the case may be of the Premises. Landlord shall prosecute all such work diligently to completion. In no event shall Landlord be liable for interruption to Tenant's business or for damage to or repair or reconstruction of any of those things which Tenant is required to insure pursuant to Section 11.01(a)(iii), nor shall Landlord be required to expend more for any repair or reconstruction pursuant to this Sectioi than the net amount of insurance proceeds actually received by Landlord and allocable to the Premises on a square foot hasis. D:\Legal\BrendaM\WORDIPREIT-Leases\CapitalCity\CajunCafe(hill(fmal).doc 24 ® • Section 12.02: TENANT'S DUTY TO RECONSTRUCT If any item which Tenant is required to insure pursuant to Section 11.01(a)(iii) is damaged or destroyed by fire or other casualty, Tenant shall (subject to being able to obtain all necessary permits and approvals therefor, including without limitation permits and approvals required from any agency or body administering environmental laws, rules and regulations), within fifteen (15) thirty (30) days after Landlord has substantially repaired or reconstructed Landlord's Building and the portion of the Premises Landlord is obligated to repair or reconstruct pursuant to Section 12.01 (unless Landlord terminates this Lease pursuant to Section 12.03), commence to repair or reconstruct such damaged or destroyed items to at least substantially the same condition in which they were prior to such damage or destruction and prosecute the same diligently to completion. Section 12.03: LANDLORD'S RIGHT TO TERMINATE. (a) Landlord and where so noted, Tenant shall have the option to terminate this Lease upon giving written notice to Teflant the other of the exercise thereof within one hundred twenty (120) days after the Landlord's Building is damaged or destroyed if: 0) the Premises are rendered whoQV unfit for carving on the Tenant's business after damage to or destruction thereof from any cause; or (ii) Landlord's Building is damaged or destroyed as a result of any flood, earthquake, act of war, nuclear reaction, nuclear radiation or radioactive contamination, or from any other risk not covered by insurance which Landlord is obligated to procure pursuant to Section 11.02(a)(1i); or (Iii) any damage to or destruction of Landlord's Building occurs within the last three (3) Years of the Term or in any Partial Year at the end of the Term; or (iv) fifty percent (506) or more of the GLA in the Landlord's Building immediately prior to the damage or destruction is rendered unfit for carrying on business therein; or (v) Landlord's Building is so substantially damaged that it is reasonably necessary, in Landlord's judgment, to demolish the same for the purpose of reconstruction. (b) Unless so terminated, this Lease shall continue in full force and effect, and Landlord and Tenant shall perform their respective obligations under Section 12.01 and 12.02. Upon any termination of this Lease under any of the provisions of this Section 12.03, the Rent shall be adjusted as of the date of such termination and the parties shall be released from all liability hereunder upon the surrender of possession of the Premises to the Landlord, except for items which have been theretofore accrued and are then unpaid. (c) Tenant may terminate this Lease in the event Landlord fails to commence restoration of the Premises within seventy-five (75) days after the date of damage or destruction or in the event the damage or destruction to the Premises occurs within the last three (3) Years of the Term. In the event Tenant elects to exercise its right of termination, it must do so within ten (10) days after the expiration of the time period set forth in the prior sentence or, in the case of a casualty occurring during the last three (3) years of the Term, within ten (10) days after the date of such casualty. Section 12.04: ABATEMENT OF RENT. If this Lease is not terminated by Landlord pursuant to Section 12.03 after damage or destruction of the Landlord's Building, and if the Premises are rendered wholly or partially unfit for carrying on Tenant's business by such damage or destruction, then the Minimum Rent and the Additional Rer+t payable by Tenant under this Lease shall be abated, and the applicable Break Point and Partial Year Break Point (as the case may be) shall be reduced in direct proportion to the percentage of the GLA in the Premises which is rendered unfit for that period from the date the Premises are so rendered unfit until the earlier of sixty (60) days after Landlord re-delivers possession of the Premises to Tenant or the date Tenant reopens for business. ARTICLE 13: MAINTENANCE OF PREMISES Section 13.01: LANDLORD'S DUTY TO MAINTAIN STRUCTURE Landlord will keep the roof, exterior face of service corridor walls, structural columns and structural floor or floors which enclose the Premises (excluding floor coverings, such as carpeting, terrazzo and other special flooring, walls installed at the request of Tenant, doors, windows and glass) in good repair. Notwithstanding the foregoing provisions of this Section 13.01, Landlord shall not in any way be liable tc Tenant unless Tenant shall have given Landlord written notice of the necessity for such repairs and Landlord fails to commence making such repairs within a reasonable period thereafter, and, above, provided that any damage necessitating such repairs shall not have been caused by the omission, negligence or willful act of Tenant, its concessionaires, invitees, officers, employees, licensees or contractors or by the failure of Tenant to perform any of its obligations under this Lease (in either of which events Tenant shall be responsible therefor) or have been caused to any of the items Tenant is required to insure pursuant to Article 11. Landlord shall be under no liability frr repair, maintenance, alteration, improvement, reconstruction, renewal or any other action with respect to the Premises or any part thereof, or any plumbing, electrical, heating, ventilating, air conditioning, or other mechanical installation therein, except as may be expressly set forth in this Lease. In the event Landlord defaults in the performance of any of its obligations under Section 13.01 and Tenant shall have given Landlord written notice specifying such default, if Landlord shall fail to cure such default within D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafet_;rill(final).doc 25 thirty (30) days of the date of such notice (or if the default so specified shall be of such a nature that the same cannot be reasonably cured or remedied within said thirty (30) day period, if Landlord shall not in good faith have commenced the curing or remedying of such default within such thirty (30) day period and shall not thereafter proceed therewith to completion), if such defaults materially and adversely affects Tenant's use of the Premises Tenant may take the minimal necessary lawful steps to cure such default on behalf of Landlord in a way which does not affect any other tenant and Landlord shall reimburse Tenant for any reasonable sums paid or cost incurred in curing such default provided supporting invoices are submitted to Landlord. Section 13.02: TENANT'S DUTY TO MAINTAIN PREMISES Tenant will at all times, from and after delivery of possession of the Premises to Tenant, at its own cost and expense, maintain and make all needed repairs, and do all other work to or for the Premises and every part thereof to render the same in good and tenantable condition. Tenant's obligation under this Section 13.02 shall include, but not be limited to, repairing, replacing and otherwise maintaining items as are required by any governmental agency having jurisdiction thereof (whether the same is ordinary or extraordinary, foreseen or unforeseen), walls (other than the exterior face of service corridor walls), ceilings, plate glass, utility meters, pipes and conduits outside the Premises which are installed by or demised to Tenant or which exclusively serve the Premises, all fixtures, heating, ventilating and air conditioning equipment installed by or demised to or used solely by Tenant, if any (whether such heating ventilating and air conditioning equipment is located inside the Premises, between the ceiling and the roof or on the roof of Landlord's Building), sprinkler equipment and other equipment within the Premises, the storefront or storefronts, ail of Tenant's signs, security grilles or similar enclosures, locks and closing devices, and all window sash, casement or frames, doors and door frames; provided that Tenant shall make no adjustment, aperation or repair of any part of any sprinkler, life safety or other detection or suppression system in or serving the Premises without Landlord's prior approval. Tenant shall permit no waste, damage or injury to the Premises and Tenant shall initiate and carry out a program of regular repair and other maintenance of the Premises, including the painting or refinishing of all areas of the interior and the storefront as approved by Landlord, so as to impede, to the extent possible, deterioration by ordinary wear and tear and to keep the same in attractive condition. Tenant will not overload the electrical wiring or other systems serving the Premises or within the Premises, and will install at its expense, but only after obtaining Landlord's written approval, any additional electrical wiring or other items which may be required in connection with Tenant's apparatus. Section 13.03: RIGHT TO ACCESS TO THE PREMISES Landlord and its authorized representative may enter the Premises at any and all times upon three (3) days' prior notice (except for emergencies) during usual business hours for the purpose of inspecting the same (and at all other times in the case of emergency). Tenant further agrees that Landlord may from time to time upon proper notice go upon the Premises and make any additions, alterations, repairs or replacements and do other work to the Premises or to any utilities, systems or equipment located in, above or under the Premises which Landlord may deem necessary or desirable to comply with all governmental requirements and/or recommendations of an insurance rating bureau or of any similar public or private body or that Landlord may deem necessary or desirable to prevent waste or deterioration in connection with the Premises if the Tenant does not make or cause such additions, alterations, repairs or other work to be made or performed promptly after receipt of written demand from Landlord. Nothing herein contained shall imply any duty on the part of Landlord to do any such work which under any provision of this Lease that Tenant may be required to do, nor shall it constitute a waiver of Tenant's default in failing to do the same. In the event Landlord performs or causes any such work to be performed, Tenant shall pay the cost thereof to Landlord as Additional Rent upon demand therefor. In addition, Landlord may install, use, repair or replace any and al materials, tools and equipment, and pipes, ducts, conduits, columns, foundations, footings, wires and other mechanical equipment serving other portions, tenants and occupants of Landlord's Building in, through, under or above the Premises that Landlord deems desirable therefor, without the same constituting an actual or constructive eviction of Tenant. Landlord's work in connection with the installment of such equipment shall not unreasonably interfere with the operation of tenant's business. Landlord may also enter the Premises at all times during usual business hours for the purpose of showing the Premises to prospective purchasers, mortgagees and during the last six (6) months of the term, potential tenants. No exercise by Landlord of any rights provided in Section 13.01 or 13.03 shall entitle Tenant to any damage for any inconvenience, disturbance, loss of business or other darnage to Tenant occasioned thereby nor to any abatement of Rent. Section 13.04: CONFLICTS. To the extent, if any, that there may be any conflict between this Article 13 and Article 12, or between this Article 13 and Article 22, Article 12, if applicable, or Article 22, if applicable, shall prevail. ARTICLE 14: FIXTURES AND PERSONAL PROPERTY Section 14.01: TENANT'S PROPERTY; REMOVAL. Any trade fixtures, signs, counters, shelving, inventory, showcases, mirrors, and other personal property of Tenant not permanently affixed to the Premises shall remain the property of Tenant. Tenant shall have the right, provided Tenant is not in default under this Lease, at any time and from time to time during the Term, to remove any and all of its personal property which it may have stored or installed in the Premises. If Tenant is in default under this Lease, Landlord shah have shall have the benefit of any lien or Tenant's property as may be Omwe"ermitted under the laws of the state in which Landlord's Building is located and, it sush possession is taken a D:\Legal\BrendaM\WORD\PRETT-Leases\CapitalCity\CajunCafeGrill(fmal).doc 26 0 0 sueh lien is asserted by Landlord ' ' ,j or permitted by law, Tenant shall not remove or permit the removal of said trade fixtures, signs or other personal property until such pessessiGA_is relipyuished eF the lien is removed. , as the sasefaay be- Nothing in this Article shall be deemed or construed to permit or allow Tenant to remove any of such personal property prior to the end of the Term without the immediate replacement thereof with similar personal property of comparable or better quality, or otherwise render the Premises unsuitable for the continued conduct of Tenant's permitted use thereof. Tenant at its expense shall immediately repair and otherwise make good any damage occasioned to the Premises or Shopping Center by reason of installation or removal of any such personal property unless such damage is caused by Lanciord pursuant to Section 13.03 and if Tenant fails to remove such items from the Premises prior to such expiration or termination, or if this Lease is terminated by Landlord and Tenant fails to remove such items from the Premises prior to the effective date of such termination, then in any such event all such personal property shall thereupon become the property of Landlord, without further act by either party hereto, unless Landlord elects to require all or a portion of such items to be removed by Tenant in which case Tenant shall promptly remove the items designated by Landlord and restore the Premises to its prior condition at Tenant's expense. Section 14.02: IMPROVEMENTS TO PREMISES. All improvements made to the Premises by Tenant, including, but not limited to, the items fumished pursuant to Tenant's Work, alterations, changes and additions by Tenant, light fixtures, floor coverings and partitions, heating, ventilating and air-conditioning equipment, mechanical and plumbing equipment, but excluding trade fixtures and signs and other personal property specified in Section 14.01, shall become the property of Landlord upon expiration or earlier termination of this Lease; provided, however, that Landlord may designate by written notice to Tenant, prior to Tenant's making such alterations, those alterations, changes, and -additions made in the Premises after the Rent Commencement Date which shall be removed by Tenant at the expiratioi or termination of this Lease, in which event Tenant shall at Tenant's sole cost and expense promptly remove the same and repair and otherwise make good the damage to the Premises caused by such removal or by the installation of such alterations, changes or additions. ARTICLE 15: ASSIGNMENT AND SUBLETTING Section 15.01: PROHIBITED. Except as provided otherwise hereunder, Tenant shall not ,permit anyone other than Tenant to occupy the Premises or any part thereof and shall not transfer, assign, sublet, enter into license or concession or other occupancy or use agreements or mortgage or hypothecate this Lease or the Tenant's interest in and to the Lease or the Premises or any part thereof (herein collectively referred to as "Transfer") without first obtaining in each and every instance the prior written consent of Landlord which Landlord shall not unreasonably withhold or delay, unless provided otherwise herein, may withheld its sale-9issretiea. any attempted Transfer without such prior written consent shall be an Event of Default, shall not be binding upon Landlord, shall confer no rights upon any third person and shall not relieve Tenant of its obligations under this Lease. Any transfer by merger, consolidation, liquidation or otherwise by operation of law, including, but not limited to, an assignment for the benefit of creditors, as well as any transfer, assignment, or hypothecation of any stock or general partnership interest in Tenant so as to result in a change of the control thereof, shall be included in the term "Transfer" for the purposes of this Lease and shall be a violation of this Section 15.01 and an Event of Default, except as otherwise specifically set forth in this Article 15. Notwithstanding the foregoing, nothing set forth herein shall prohibit (1) a public offering of stock of Tenant pursuant to the Securities Act of 1933 and/or Securities Exchange Act of 1934, as amended; or (11) the transfer of stock between current shareholders of Tenant, Tenant's employees or its affiliates, or (111) the sale of additional shares of stock to individuals currently not stock holders of Tenant, provided that there is no change in control of Tenant, or (iv) the transfer of Tenant's stock to shareholders' family members by gift, trust or estate plan, or (v) transfer of stock upon the death of any shareholder. Consent by Landlord to any Transfer shall not constitute a waiver of the necessity for such consent to any subsequent Transfer. In the event of a permitted Transfer, Tenant agrees nevertheless to and shall remain fully liable for the full performance of each and every obligation under this Lease to be performed by Tenant and the assignee shall be deemed to have assumed, and agreed to be bound by all of the terms of this Lease. In the event of any proposed Transfer, Tenant shall deliver to Landlord written notice (the "Request Notice") requesting Landlord's consent to the proposed Transfer at least thirty (30) days prior to the date on which, with Landlord's prior written consent, the Transfer would be effective. The Request Notice shall contain, without limitation, at least: (i) the full identification of the proposed transferee; (ii) the most recent financial statements and other evidence of the transferee's financia responsibility and business performance; (iii) the transferee's proposed specific use and business proposed to be conducted at the Premises; (iv) the scope of any proposed alterations to the storefront of and within the Premises; and (v) the monetary and non-monetary terms and conditions of the proposed Transfer. Landlord shall have the right and option (the "Take-back Option"), exercisable by Landlord giving Tenant written notice within thirty (30) days after Landlord's receip: of the Request Notice of reacquiring the Premises or portion thereof which is the subject of the proposed Transfer and terminating this Lease with respect thereto. If Landlord elects not to exercise the Take-back Option and elects to give Landlord's written consent to the proposed Transfer, then Tenant shall pay to Landlord forthwith upon Tenant's receipt, as Additional Rent, all sums and other economic consideration (whether by lump sum payment or othenvise) received by Tenant in any month as a result of the Transfer whether denominated rentals or otherwise which exceed, in the aggregate, the total sums which Tenant is obligated to pay and does pay Landlord under this Lease in the same month (prorated to reflect obligations allocable to that portion of the Premises which is the subject of the Transfer), all without affecting or reducing any other obligation of Tenant hereunder provided, that in the case of an assignment of this Lease such Additional Rent payment by Tenant to Landlord shall equal the entire consideration for such assignment. Notwithstanding the foregoing, the following shall not be deemed to be "rent" nor shall Landlord have any Interest or claim In any of the following payments to Tenant, regardless of whether such payments are made In one lump sum or periodically: any payments for Tenant's Inventory, personalty, fixtures, the unamortized value of the leasehold Improvements installed and paid for by Tenant, bona D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafeC HII(fml).doc 27 0 0 fide franchise fees paid pursuant to a bona fide franchise agreement, any rents paid for the rental of Tenant's fixtures, personal property and equipment, and for Tenant's good will In the sale of the business in the Premises. If Landlord gives Landlord's written consent to the proposed Transfer and the Transfer is not made (including without limitation, delivery of possession by Tenant to and occupancy by the proposed transferee approved by Landlord) within thirty (30) days after the date Landlord gives its written consent to the proposed Transfer, then Landlord's written consent and the Transfer shall be automatically null, void and of no force or effect whatsoever. The Take-back Option shall not be exhausted by any one exercise thereof by Landlord but shall be exercisable from time to time and as often as there is a proposed Transfer. The Take-back Option may be exercised by any assignee of Landlord's right, title and interest in this Lease or any other person which at the time of the Request Notice is Landlord under this Lease. If after receipt of the Request Notice Landlord requests additional or further information which Landlord reasonably requires to consider the proposed Transfer, Tenant shall deliver such information to Landlord upon Landlord's request therefor and the period for Landlord to exercise the Takeback Option shall be extenied by the number of days between Landlord's request for and Landlord's receipt of such additional or further information. Tenant shall pay to Landlord the sum of Five Hundred ($500.00) Dollars to defray Landlord's administrative costs, overhead and counsel fees in connection with the consideration, review and document preparation of any proposed assignment or subletting requiring Landlord's prior consent, such sum to be paid at the time Tenant delivers the assignment and assumption agreement executed by the assignee and assignor. Without Landlord's prior approval, Tenant may sublease the Premises to Tenant's authorized franchisee provided and so long as the following conditions are satisfied: 1. The execution of the franchise agreements and sublease (collectively "agreements") shall not alter or diminish Tenant's direct obligation for performance of its obligations hereunder and Tenant shall not be released therefrom in any respect; and 2. All the rights of such sublease shall be subject to all obligations imposed upon Tenant by this Lease and such sublessee shall affirmatively covenant in the agreements to perform all such obligations for the direct benefit of Landlord as a third party beneficiary thereof; and 3. The agreements shall be consistent with the terms hereof and shall not grant to the sublessee any rights not afforded to Tenant by this Lease, and in the event of a conflict between the terms, covenants and conditions contained in this Lease and those contained in the agreements, the terms of this Lease shall prevail; and 4. If in Landlord's reasonable opinion the sublessee operating the Premises is doing so in a manner not consistent with the quality of other stores in the Shopping Center, within-twep*sixty (60) days after Landlord's request, Tenant shall have the ability to and will cancel the agreements and either immediately recommence business herewith; and n the Premises as a company operation or will obtain another sublessee in accordance 5. In no event will Landlord be obligate any proceeding Landlord institutes against Tenant in the e agreements will by their own terms automatically terminate Lease. ARTICLE 16: DEFA Section 16.01: EVENTS OF DEFAULT. This Lease is made upon the condition that Tenar covenants, conditions and agreements by it to be performe( stated in this Lease as Events of Default, the following ah, sometimes referred to as an "Event of Default" in this Lease (a) the failure by the Tenant to pay Minimum installment or year-end adjustment thereof if such failure Landlord to Tenant; or (b) the failure of Tenant to submit its Design Drawings on or before the Design Drawings Submission Date in accordance with Section 2.03(c) or commence Tenant's Work on or before the Construction Commencement Date in accordance with the terms and conditions of Section 2.03(c); or (c) the failure of Tenant to open its business to the public in the Premises on or prior to the date on which Tenant is required to open its business to the public pursuant to the temps and conditions of Section 2.04, or the failure to open the Premises, or to keep the Premises open, on the days and hours required by this Lease, or if Tenant vacates or abandons the Premises; or (d) the failure of Tenant to observe or perform any of the covenants, terms or conditions set forth in Article 15 (relating to assignment and subletting); or D:\Legal\BrendaNAWORD\PREIT-Leases\CapitalCity\CajunCafe. mil(final).doc 28 (e) the sale or removal of a substantial portion of Tenant's property located in the Premises in a manner which is outside the ordinary course of Tenant's business unless Tenant immediately replaces same with similar or better quality property; or (f) the failure to maintain inventory levels and employee staff in accordance with the provisions of Article 7 hereof; or (g) repetition or continuation of any failure to timely pay any Minimum Rent and/or Percentage Rent and/or Additional Rent or other sums reserved hereunder or to timely report Gross Sales as provided in Section 4.06 hereof where such failure shall continue or be repeated for two (2) consecutive months, or for a total of three (3) months in any period of twelve consecutive months; or (h) repetition of any failure to observe or perform any-the same or substantially similar duty required under the Lease covenants, terms or conditions more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months; or (i) any other failure of Tenant to observe or perform any of the other covenants, terms or conditions set forth in this Lease where said failure continues for a period of twenty (20) days after written notice thereof from Landlord to Tenant (unless such failure cannot reasonably be cured within twenty (20) days and Tenant shall have commenced to cure said failure within twenty (20) days and continues diligently to pursue the curing of the same until completed); or 0) the commencement of levy, execution, or attachment proceedings against Tenant or Guarantor (hereafter defined) or a substantial portion of Tenant's or Guarantors assets; the commencement of levy, execution, attachment or other process of law upon, on or against the estate created in Tenant hereby; the application for or the appointment of a liquidator, receiver, custodian, sequestrator, conservator, trustee, or other similar judicial officer for Tenant or Guarantor or for all or any substantial part of the property of Tenant or Guarantor (and such appointment continues for a period of thirty aioety sixty (60)(99) days); the insolvency of Tenant or Guarantor of Tenant in bankruptcy or equity sense; any assignment by Tenant or Guarantor for the benefit of creditors; or (k) the commencement of a case by or against Tenant or Guarantor, under any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state o, federal; or the determination by the Tenant or Guarantor to request relief under any insolvency proceeding, including any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state or federal, and in no event shall the Premises or Tenant's interest in this Lease become an asset in any such proceedings; or (1) notwithstanding the Tenant's obligation to pay Minimum Rent and/or Percentage Rent and/or Additional Rent as of the first day of each month during the Term, in the event that an insolvency, bankruptcy or similar proceeding is filed by or against the Tenant or any Guarantor, the Tenant shall be obligated to pay all such Minimum Rent and/or Percentage Rent and/or Additional Rent on a ratable basis from the date of the commencement of any such proceeding through the end of the month in which such proceeding is commenced. Section 16.02: LANDLORD'S REMEDIES. (a) Landlord may treat any Event of Default as a material breach of this Lease. Landlord's failure to insist upon strict performance of any covenant, term or condition of this Lease or to exercise any right or remedy it has herein shall not be deemed a waiver or relinquishment for the future of such performance, right or remedy. In addition to any and all other rights or remedies of Landlord in this Lease or at law or in equity provided, Landlord shall have the following rights and remedies if there shall occur any Event of Default none of which shall be construed as an election to forego any of the other remedies then or in the future: W accelerate the whole balance of Rent, and all other sums payable hereunder by Tenant, for the entire balance of the Term, or any part of such Rent and other sums; and/or (ii) to terminate this Lease, and to re-enter the Premises and take possession thereof and to remove all persons and contents therefrom, and Tenant shall have no further claim or right hereunder; and/or (iii) to bring suit for the collection of Rent and for damages without entering into possession of the Premises or terminating this Lease; and/or (iv) to terminate Tenant's right of possession of the Premises by summary proceedings or otherwise, without terminating this Lease. In the event of any re-entry and termination of possession, Landlord shall have the right but not the obligation to remove any personal property frorri the Premises and either treat such property as abandoned, or at Landlord's option, place the same in storage at a public: warehouse at the sole cost, expense and risk of the Tenant; and/or (v) to enter the Premises and without further demand or notice proceed to distress and sale of the goods, chattels, personal property and other contents there found and to levy the Rent, and Tenant shall pay all costs and officers' commissions, including watchmen's wages and sums chargeable by Landlord, and further including charges which Landlord may impose by statute as commissions no the constable or other person making the levy, and in such cases all costs, officers' commissions and other charges shall immediately attach and become part of the claim of Landlord for Rent, and any tender of Rent without said casts, commissions and charges made, after the issuance of a warrant of distress, shall not be sufficient to satisfy the claim of Landlord. (b) (' D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCaf6G ill(fmal).doc 29 • (d) eepy ef !his Lease (and surA GOPY shall be GGRGIUSOVOly PFOSuFned !a be tA_113 SIRd caFmQt by YiFtue of suGh YeFAGWWA), (e) Tenant expressly waives: (i) The benefit of all laws, now or hereinafter in force, exempting any goods in the Premises or elsewhere from distraint, levy or sale in any legal proceedi igs taken by Landlord to enforce any rights under this Lease. (ii) The benefit of all laws now made or which may hereafter be made regarding any limitation as to the goods upon which, or the time within which, distress is to be made after the removal of goods, and Tenant further relieves Landlord of the obligation of proving or identifying such goods; it being the purpose and intent of this provision that all goods of Tenant whether upon the Premises or not, shall be liable to distress for rent. (iii) The Fight to 166618 a WF# Of FepleAR fQF the FeGeYeFy of any geeds. seized und8F a diStF8sr. fel: Rent (iv) The right to delay execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this Lease and any right to have the same appraised. The SMOSWWR OF OtheF PF99866 Upen Tenani's YeIwRlaFy walver and fUFth8F agFees that said Fee' estate Fney be sold on awrit (v) Ali rights under Act of April 5, 1957, No 20 and all supplements and amendments thereto, hereby authorizing the sale of any goods distrained for rent at any time after seven (7) days from said distraint without any appraisement and condemnation thereof. (vi) The right to three (3) months and/or fifteen (15) or thirty (30) days' notice required under certain circumstances, or any other notice required or otherwise provided by statute as a condition to the commencement of summary proceedings or an action for possession or to the termination of this Lease or any retaking of possession, Tenant hereby agreeing that the respective notice periods provided for in this Lease shall be sufficient in any such case. Section 16.03: DAMAGES. (a) If Landlord elects to terminate Tenant's right to possession under this Lease, but not to terminate this Lease, Landlord may shall use commercially reasonable efforts to relet the Premises (or any part thereof) for the account of Tenant at such rentals and upon such terms and conditions as Landlord shall deem appropriate (which may be less than or exceed the balance of the Term), and to the extent Landlord receives the Rent therefor, Landlord shall apply the same first to the payment of such expenses as Landlord may have incurred in recovering possession of the Premises (including, without limitation, reasonable and necessaryfugal expenses and attomeys' fees) and for putting the Premises into good order and condition and repairing or remodeli-ig or altering the same for reletting, and any other expenses, commissions and charges paid, assumed or incurred by or on behalf of Landlord in connection with the reletting of the Premises (collectively the "Costs of Resetting"), and then to the fulfillment of the covenants of Tenant under this Lease. Tenant shall pay to Landlord the Rent up to the time of such termination of Tenant's right to possession under this Lease, D:\Legai\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCa'f'eGrill(fmal).doc 30 0 • and thereafter, Tenant covenants to pay Landlord until the end of the Term of this Lease the equivalent of the amount of Rent under this Lease less the net avails of such relettinf,,, if any, during the same period, and the same shall be due and payable by Tenant to Landlord on the dates such Rent is due under this Lease. Any reletting by Landlord shall not be construed as an election on the part of the Landlord to terminate this Lease unless a notice of such intention is given by Landlord to Tenant. Notwithstanding any reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease. In any event, Landlord shall not be liable for, nor shall Tenant's obligations hereunder be diminished by reason of any failure by Landlord to relet the Premises or any failure by Landlord to collect any sums due upon such reletting. Tenant shall not be entitled to any Rent received by Landlord in excess of Rent provided for in this Lease. Landlord may file suit to recover any sums falling due under the terms of this subsection from time to time, and no suit or recovery of any portion due Landlord hereunder shall be a defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. Notwithstanding anything set forth in Section 16.03(a) to the contrary, Landlord shall be obligated to make a good faith effort to relet the Premises at a Minimum Rent, Additional Rent, and other charges consistent with the prevailing economic conditions to a tenant which is acceptable to Landlord based upon the following criteria: (a) the proposed tenant shall have a net worth equal to or greatef than the net worth of Tenant on the date hereof, (b) the proposed tenant will be obligated to use the Premises for either the same use as Tenant or other use which in Landlord's reasonable judgment is in accordance with a proper mix of uses for the Shopping Center and (c) the proposed tenant shall agree to enter into a lease agreement with Landlord which contains terms, covenants and conditions at least as favorable to Landlord as those set forth in this Lease. However, Landlord shall not be required to lease the Premises in preference to any other then vacant space in the Shopping Center. (b) If Landlord elects to terminate this Lease instead of terminating only Tenant's right to possession, Landlord shall have the right to immediately recover against Tenant as damages for loss of the bargain, and not as a penalty, the excess (if any), as determined by Landlord, of (1) the present value of the projected Rent payable by Tenant under this Lease (as determined by Landlord on the basis of the amounts of Additional Rent which would have been payable pursuant to this Lease for the full calendar year prior to the calendar year in which the default occurred, increasing annually on the first of each year after such calendar year at the rate of six percent (6%) per annum compounded) that would have accrued for the balance of the Term plus any other amount necessary to compensate Landlord for all detriments proximately caused by Tenant's failure to perform its obligations under thls Lease, including reasonable attorney's fees and interest on all sums due Landlord at the Default Rate (hereafter defined), less (ii) the then present fair market rental value of the Premises for the balance of the Tenn as reasonably determined by Landlord, taking into account among other things, the condition of the Premises, market conditions and the period of time the Premises may remain vacant before Landlord is able to relet the same to a suitable replacement tenant, and the Costs of Reletting (as defined above) that Landlord may incur in order to enter into a replacement lease ("Benefit of the Bargain Damages"). Notwithstanding anything to the contrary contained in this Lease, if, subsequent to the termination of this Lease and the recovery of damages from Tenant pursuant to this subsection (b), Landlord relets the Premises for an effective Rent higher or lower than the Rent assumed for purposes of calculating the Benefit of the Bargain Damages, the Benefit of the Bargain Damages shall not be recalculated and Landlord shall be entitled to retain all of the proceeds of such reletting. (c) The "Default Rate" means the rate of interest which is three percent (3%) over the announced prime rate of PNC Bank, Philadelphia, Pennsylvania or any successor thereto or other bank selected by Landlord. Section 16.04: LANDLORD'S SELF-HELP. In addition to Landlord's rights to self-help set forth elsewhere in this Lease, if Tenant at any time fails to perform any of its obligations under this Lease as required under this Lease, Landlord shall have the right, but not the obligation, upon giving Tenant at least three (3) days prior written notice of its election to do so (in the event of any emergency no prior notice shall be required) to perform such obligations on behalf of and for the account of Tenant and to take all such action to perform such obligations. In such event, Landlord's costs and expenses incurred therein shall be paid for by Tenant as Additional Rent, forthwith, upon demand therefor, with interest thereon from the date Landlord performs such work at the Default Rate. The performance by Landlord of any such obligation shall not constitute a release or waiver of Tenant therefrom. Section 16.05: LEGAL EXPENSES. In the event that Landlord should retain counsel and/or institute any suit against Tenant for violation of or to enforce any of the covenants or conditions of this Lease, or should Tenant institute any action against Landlord for violation of any covenants or conditions of this Lease:, or should either party institute a suit against the other for a declaration of rights hereunder, or should either party intervene in any suit in which the other is a party, to enforce or protect its interests or rights hereunder, the prevailing party in any such suit shall be entitled to ail its costs, expenses and reasonable fees to its attorney(s) in connection therewith. ARTICLE 17: LIABILITY OF LANDLORD Section 17.01: LANDLORD'S DEFAULT. Except as otherwise provided in this Lease, Landlord shall be in default under this Lease if Landlord fails to perform any of its obligations hereunder and said failure continues for a period of thirty (30) days after written notice thereof from Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and Landlord shall D:\Legal\BrendaM\WORD\PRETT-Leases\CapitalCity\CajunCafeGrill(fmal).doc 31 have commenced to cure said failure within said thirty (30) days and continues diligently to pursue the curing of the same). If Landlord shall be in default under this Lease and, if, its a consequence of such default, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment and levied thereon against the right, title and interest of Landlord in the Shopping Center as the same may then be encumbered and Landlord shall not be liable for any deficiency. In no event shall Tenant have the right to levy execution against any property of Landlord other than Landlord's right, title and interest in the Shopping Center as hereinbefore expressly provided. No default by Landlord under this Lease shall give Tenant the right to terminate this Lease. Section 17.02: TRANSFER OF LANDLORD'S INTEREST. In the event of the sale or other transfer of Landlord's right, title and interest in the Premises or the Shopping Center (except in the case of a sale-leaseback financing transaction in which Landlord is the lessee), Landlord shall transfer and assign to such purchaser or transferee any portion of the Security Deposit which may then be held by Landlord pursuant to Section 2.02 of this Lease, and Landlord thereupon and without further act by either party hereto shall be released from all liability and obligations hereunder derived from this Lease arising out of any act, occurrence or omission relating to the Premises or this Lease occuhin_I after the consummation of such sale or transfer. Tenant shall have no right to terminate this Lease nor to abate Rent nor to deduct from nor set-off nor counterclaim against Rent because of any sale or transfer (including without limitation any sale-leaseback) by Landlord or its grantees, successors or assigns. Neither Landlord's mortgagee (or its designee) nor the purchaser at a foreclosure sale shall be liable to Tenant for the return of Tenant's Security Deposit unless and until Landlord actually delivers the Security Deposit to such mortgagee or purchaser or their designee. ARTICLE 18: SUBORDINATION AND ATTORNMENT Section 18.01: SUBORDINATION OF LEASE Tenant agrees that, except as hereinafter provided, this Lease is, and shall always be, subject and subordinate to any lease wherein Landlord Is the lessee and to the lien of any or all mortgages or deeds of trust, regardless of whether such lease, mortgages or deeds of trust now exist or may hereafter be created with regard to all or any part of the Shopping Center, and to any and all advances to be made thereunder, and to the interest therm, and all modifications, consolidations, renewals, replacements and extensions thereof. Such subordination shall be effective without the execution of any further instrument. Tenant also agrees that any lessor, mortgagee or trustee may elect to have this Lease prior to any lease or lien of its mortgage or deed of trust, and in the event of such election and upon notification by such lessor, mortgagee or trustee to Tenant to that effect, this Lease shall be deemed prior in lien to the said lease, mortgage or deed of trust, whether this Lease is dated prior to or subsequent to the date of said lease, mortgage or deed of trust. Section 18.02: TENANT'S ATTORNMENT. In the event of any foreclosure of, or the exercise of a power of sale under, any mortgage or deed of trust referred to in Section 18.01 covering the Premises or in the event of the termination of any lease referred to in Section 18.01 wherein Landlord is the lessee, Tenant, upon the purchase, or lessor's request, shall attorn to and recognize the purchaser or Landlord's lessor as Landlord under this Lease. Section 18.03: INSTRUMENTS TO CARRY OUT INTENT Tenant agrees that, upon the request of Landlord, or any such lessor, mortgagee or trustee, Tenant shall execute and deliver whatever instruments may be required for such purposes and to carry out the intent of this Article 18, and in the event Tenant fails to do so within fifteen twenty (20) days after demand in writing, Tenant shall be deemed to have committed an Event of Default subject to the Notice provisions of Article 16. Any document executed by Tenant evidencing such subordination shall provide that Landlord's mortgagee or such purchaser shall not be liable for any action or omission of any prior landlord (including Landlord) under the Lease, subject to any off sets, claims or defenses which Tenant might have against prior landlord (including Landlord), bound by any Rent which Tenant might have paid for more than the current month to any prior landlord (including Landlord), bound by any amendment or modification of the Lease or any other agreement concerning the Lease made without mortgagee's written consent or responsible in any way for any security deport which was delivered to Landlord but was not subsequently delivered to such mortgagee or purchaser. ARTICLE 19: ESTOPPEL CERTIFICATES Section 19.01: TENANT'S AGREEMENT TO DELIVER. From time to time within twenty (20) days after reqL art in writing therefor from Landlord, Tenant agrees to execute and deliver to Landlord, or to such other addressee or addressees as Landlord may designate (and Landlord and any such addressee may rely thereon), a statement in writing in form and substance satisfactory to Landlord (herein called "Tenant's Estoppel Certificate"), certifying as to such mr.tters as may be reasonably requested by Landlord. Tenant D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafeGrill(final).doc 32 expressly agrees that Landlord may assign its interest in the Tenant's Estoppel Certificate to its lender(s) at any time who may act in material reliance thereon. Section 18.02: FAILURE OF TENANT TO PROVIDE. In the event that Tenant fails to provide a Tenants Estoppel Certificate within twenty (20) days after Landlord's written request therefor, Tenant shall be deemed to have 1;ommitted an Event of Default subject to the Notice provisions of Article 16.. ARTICLE 20: QUIET ENJOYMENT Section 20.01: FAITHFUL PERFORMANCE. Upon payment by the Tenant of the Rent herein provided for, and upon the observance and performance of all of the agreements, covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term without hindrance or interruption by Landlord or any other person or persons lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to the terms and conditions of this Lease, and mortgages, leases and other matters to which this Lease is subject or subordinate. ARTICLE 21: SURRENDER AND HOLDING OVER Section 21.01: DELIVERY AFTER TERM. Tenant shall deliver up and surrender to Landlord possession of the Premises upon the expiration or earlier termination of the Term, broom clean, free of debris, in good order, condition and state of repair and in compliance with Section 14.01 (excepting Landlord's obligation under this Lease, damage by casualty and ordinary wear and tear), and shall deliver the keys to the management office of Landlord or to such other place as may be designated from time to time by notice from Landlord to Tenant. If not sooner terminated as herein provided, this Lease shall terminate at the end of the Term as provided for in Article 3 without the necessity of notice from either Landlord or Tenant to terminate the same. Section 21.02: EFFECT OF HOLDING OVER; RENT. If Tenant or any party claiming under Tenant remains in possession of the Premises or any part thereof, after any expiration or termination of this Lease, no tenancy or interest in the Premises shall result therefrom but such holding over shall be an unlawful detainer and all such parties shall be subject to immediate ouster and removal, and (a) Tenant shall pay upon demand to Landlord for any period when Ten•int shall hold the Premises after the Term has terminated or expired, as liquidated rent for such period, a sum equal to all Percentage Rent and Additional Rent provided for in this Lease plus an amount computed at the rate of daub' one hundred twenty-five percent (125%) the Minimum Rent for such period, and (b) Tenant shall indemnify and hold harmless Landlord from all loss, cost, expense and liability whatsoever resulting from such holding over, including, without limiting the generality of the foregoing, any claims made by any succeeding tenant based on such holding over. Notwithstanding anything to the contrary set forth harein, neither the Minimum Rent or any of the other charges set forth hereunder shall be increased by virtue of Tenant's holding over beyond the expiration of the Term of this Lease, provided that the parties hereto are proceeding in good faith to negotiate a new lease or renewal lease. It is understood and agreed, however, that when such new lease or rerewal lease is executed by both parties, all of its terms and provisions shall be retroactive to the date following the date of the expiration of this Lease. In the event the parties are unable to reach an agreement, then upon notice from either party to the other, the Lease shall immediately terminate and Tenant shall have thirty (30) days from the date of such notice to vacate the premises. If Tenant remains in possession of the Premises as a holdover tenant, either as a month-to-month tenant or subsequent to the unsuccessful negotiations for a renewfil or extensionof the Lease and fails to vacate and surrender same to Landlord within forty-five (45) days after receipt cf notice from Landlord demanding surrender of the Premises, Tenant shall be liable for all damages and costs incurred by Landlord as a result of Tenant's failure to vacate and surrender within said forty-five (45) days. ARTICLE 22: CONDEMNATION Section 22.01: ALL OF PREMISES TAKEN. If the whole of the Premises shall be taken or condemned either permanently or temporarily for any public or quasi-public use or purpose by any competent authority in e.ppropriation proceedings or by any right of eminent domain or by agreement or conveyance in lieu thereof (each being hereinafter referred to as "Condemnation"), this Lease shall terminate as of the day possession shall be taken by such <uthority, and Tenant shall pay Rent and perform all of its other obligations under this Lease up to that date with a proporticnate refund by Landlord of any Rent as shall have been paid in advance for a period subsequent to the date of the taking of possession. D:\Legal\BrendaM\WORD\PRETT-Leases\CapitalCity\CajunCafe(3iill(final).doc 33 Section 22.02: LESS THAN ALL OF PREMISES TAKEN If less than all but more than twenty-five percent `25%) of the GLA in the Premises is taken by Condemnation, or if (regardless of the percentage of the GLA in the Premises which is taken) the remainder of the Premises cannot be used for the carrying on of Tenant's business, then in either event Landlord or Tenant shall each have the right to terminate this Lease upon notice in writing to the other party within ninety (90) days after possession is taken by such Condemnation. If this Lease is so terminated, it shall terminate as of the dey possession shall be taken by such authority, and Tenant shall pay Rent and perform all of its obligations under this Lease up to that date with a proportionate refund by Landlord of any Rent as may have been paid in advance for a period subsequent to the date of the taking of possession. If this Lease is not so terminated, it shall terminate only with respect to the parts of the Premises so taken as of the day of possession shall be taken by such authority, and Tenant shall pay Rent up to that day with a proportionate refund by Landlord of any Rent as may have been paid for a period subsequent to the date of such taking and, thereafter, the Rent and the applicable Break Point shall be reduced in direct proportion to the amount of GLA of the Premises taken and Landlord agrees, at Landlord's cost and expense, as soon as reasonably possible to restore the Premises on the land remaining to a complete unit of similar quality and character as existed prior to such appropriation or taking (to the extent feasible); provided that Landlord shall not be required to expend more on such restoration than an amount equal to the condemnation award received by Landlord (less all expenses, costs, legal fees and court costs incurred by Landlord in connection with such award). Section 22.03: SHOPPING CENTER TAKEN. If any part of the Shopping Center is taken by Condemnation so as to render, in Landlord's judgment, the remainder unsuitable for use as an enclosed mall shopping center, Landlord shall have the right to terminate this Lease upon notice in writing to Tenant within one hundred twenty (120) days after possession is taken by such Condemnation. If Landlord so terminates this Lease, it shall terminate as o` the day possession is taken by the condemning authority, and Tenant shall pay Rent and perform all of its other obligations under this Lease up to that date with a proportionate refund by Landlord of any Rent as may have been paid in advance for a period subsequent to such possession. Section 22.04: OWNERSHIP OF AWARD. As between Landlord and Tenant, all damages 'or any Condemnation of all or any part of Shopping Center, including, without limitation, all damages as compensation for diminution in value of the leasehold, reversion and fee, and Tenant's leasehold improvements, shall belong to the Landlord without any deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all its right, title and interest to any such award. Although all damages in the event of any Condemnation are to belong to the Landlord, whether such damages are awarded as compensation for diminution in value of the leasehold, reversion or fee of the Premises, or Tenant's leasehold improvements, Tenant shall have the right to claim and recover from the condemning authority, but not from Landlord, such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right for or on account of any cost or expense which Tenant might incur in removing Tenant's merchandise, furniture and fixtures, provided such compensation does not in any way diminish the compensation otherwise available to Landlord. ARTICLE 23: MISCELLANEOUS Section 23.01: INTERPRETATION. (a) The captions, table of contents and index of defined terms appearing in this Lease are inserted only as a matter of convenience and in no way amplify, define, limit., construe, or describe the scope or intent of such Sections of this Lease nor in any way affect this Lease. (b) If more than one person or corporation is named as Landlord or Tenant in this Lease and executes the same as such, or becomes Landlord or Tenant, then and in such event, the words "Landlord" or "Tenant" wherever used in this Lease are intended to refer to all such persons or corporations, and the liability of such persons or corporations for compliance with and performance of all the terns, covenants and provisions of this Lease shall be joint and several. (c) The neuter, feminine or masculine pronoun when used herein shall each include each of the other genders and the use of the singular shall include the plural. (d) The parties hereto agree that all the provisions of this Lease are to be construed as covenants and agreements as though the words importing such covenants and agreements were used in each separate provision hereof. Furthermore, each covenant, agreement, obligation and other provision contained in this Lease is, and shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or make the same, and not dependent on any other provision of this Lease unless expressly so provided. (e) Although the provisions of this Lease were drawn by Landlord, this Lease shall not be construed for or against Landlord or Tenant, but this Lease shall be interpreted in accordance with the general tenor of the language in an effort to reach the intended result. Section 23.02: RELATIONSHIP OF PARTIES. Nothing herein contained shall be deemed or construed by the parties hereto, or by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafetmll(fmal).doc 34 0 agreed that neither the method of computation of Percentage Rent, nor any other provision contained herein, nor any acts of the parties herein, shall be deemed to create any relaiionship between the parties hereto other than the relationship of landlord and tenant nor cause Landlord to be responsible 'n any way for acts, debts or obligations of Tenant. Section 23.03: NOTICES. Any notice, demand, request, approval, consent or other instrument which may be or is required to be given under this Lease shall be in writing, and, shall be deemed to t ave been given (a) when mailed by United States registered or certified or express mail, return receipt requested, postag:r prepaid and received or refused by the addressee, or (b) when sent by courier guarantying overnight delivery, addressed to Landlord or Tenant at the respective addresses set forth in the Fundamental Lease Provisions and/or such other address or addresses as either party may designate by notice to the other in accordance with this Section and received or refs sed by the addressee. Any notice by the Landlord may be given on its behalf by Agent or by an attorney for Landlord or Agent. Any notice property sent to Tenant shall be deemed effective whether or not a copy is sent to the address designated in the Fundamental Lease Provisions to receive a copy of such notice. Section 23.04: SUCCESSORS. This Lease and the covenants and conditions herein contained shall inure to the benefit of and be binding upon (subject to Article 17) Landlord, its successors and assigns, and shall be binding upon Tenant, its heirs, successors and assigns and shall inure to the benefit of Tenant and only such assigns of Tenant to whom the assignment by Tenant has been consented to by Landlord in writing. Nothing in this Section 23.04 shall be deemed to require Landlord to give any such consent. All of Tenant's obligations during the Te m pursuant to Section 4.05, 4.06, 4.07, 5.01, 5.02, 7.03, 8.03, 11.03 and 23.17 shall survive the expiration or earlier termination of this Lease. Section 23.05: BROKER'S COMMISSION. Tenant warrants that, except for Agent, it has dealt with no broker in connection with this Lease, and agrees to and shall defend, indemnify and save Landlord harmless from all claims, actions, damages, costs and expenses and liability whatsoever, including reasonable attorneys' fees, that may arise from any claim by or through Tenant for a commission, finders or like fee in connection with this Lease. Landlord shall pay the fee or commission due Agent in connection with this Lease. Section 23.06: UNAVOIDABLE DELAYS. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, inability to procure labor or materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war (whether actual or threatened), lack of access to the Shopping Center due to evacuation; damage or governmental order, fire or other casualty or other reason of a similar or dissimilar nature beyond the reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act, but not Tenant's obligation to pay Rent, shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. During Tenant's Construction Period the provisions of this Section 23.06 shall not operate to excuse Tenant from completing construction of the Premises within Tenant's Construction Period unless Tenant gives written notice of the delaying event to Landlord within ten (10) days of the occurrence of such delaying event. Such written notice shall specify the nature of the delaying event and the number of days of delay claimed to result therefrom. Tenant's Construction Period shall be extended for a period equivalent to the period of actual delay. After the Rent Commencement Date the provisions of this Section 23.06 shall not excuse Tenant from the prompt payment of Rent and all other sums due by Tenant under this Lease and such delay shall not extend the Tern. Delays or failures to perform resulting from lack of funds or the unavailability of a particular contractor or personnel shall not be deemed delays beyond the reasonable control of a party. Section 23.07: SEVERABILITY. It is the intention of the parties hereto that if any provision of this Lease is capable of two constructions, one of which would render the provision invalid and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. If any term or provision, or any portion thereof, of this Lease, or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the applicator of such term or provision to the persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. Section 23.08: TIME OF ESSENCE. Time is of the essence with respect to the performance of the respective obligations of Landlord and Tenant set forth in this Lease. Section 23.09: OTHER TENANTS; RELOCATION OR TERMINATION. (a) Landlord reserves the absolute right to effect such other tenancies in the Shopping Center as Landlord shall determine in the exercise of its sole business judgment. Tenant hereby acknowledges that (t) this Lease contains no restrictive covenants or exclusives in favor of Tenant; (it) this Lease shall not be deemed or interpreted to contain, by implication or otherwise, any warranty, representation or agreement on the part of Landlord that any department store or D:U.egal\BrendaNEWORD\PREIT-Leases\CapitalCitylCajun(.afeGrill(fmal).doc 35 AMIN W 0 regional or national chain store or any other merchant shall open for business or occupy or continue to occupy any premises in or adjoining the Shopping Center during the Term or any part thereof or that Tenant shall generate a certain amount of Gross Sales or that any reimbursable amount payable by Tenant shall be any specific amount, and Tenant hereby expressly waives all claims with respect thereto and acknowledges that Tenant is not relying on any such warranty, representation or agreement by Landlord either as a matter of inducement in entering into this Lease or as condition of this Lease or as a covenant by Landlord. (b) During the Term or any renewals or extension thereof, Landlord may expand, renovate, remerchandise or otherwise change the size or configuration of the Shopping Center or Landlord's Building and in connection therewith Landlord may require that Tenant surrender possession of all or a portion of the Premises either temporarily or permanently. Accordingly, Landlord reserves the right in such event, in Landlord's sole and absolute discretion, to either (i) offer to amend this Lease to (a) make changes resulting from any alteration in Tenant's GLA resulting from an alteration in the size or shape of the Premises and/or (b) relocate Tenant, at Tenant's sole cost and expense, to other comparable premises within the Shopping Center on the same terms and conditions as those contained in this Lease, either on a temporary basis or for the balance of the Term, or (ii) terminate this Lease in exchange for paying Tenant an amount equal to the unamortized net cost to Tenant of its leasehold improvements in the Premises, which unamortized net cost shall be calculated using a straight line amortization schedule and an amortization period equal to the Rent Term plus any previously exercised renewal options afforded by this Lease. Landlord shall exercise its right set forth in this Section upon 30 (thirty) days' prior written notice to Tenant ("Landlord's Notice") which shall specify whether Landlord elects to amend this Lease and if so, include the proposed lease amendment or to terminate the same. Tenant shall deliver to Landlord within ten (10) days after Landlord's Notice indicating Landlord's desire to terminate this Lease, reasonably detailed evidence substantiating Tenant's unamortized net cost of its leasehold improvements to the Premises and Landlord shall have the right to verify the accuracy thereof. Landlord reserves the right to rescind Landlord's Notice of termination within ten (10) days after receipt of Tenant's evidence substantiating Tenant's unamortized net cost of its leasehold improvements to the Premises and may in lieu of terminating the same, elect to relocate Tenant to other comparable Premises in accordance with the provisions of (b) above. Any proposed amendment to the Lease shall afford Tenant at least sixty (60) days after the date of Landlord's Notice before Tenant shall be required to surrender possession of any portion of the Premises and/or relocate. In the event Landlord elects to terminate this Lease, such notice shall provide that such termination shall not be effective for at least sixty (60) days after the date of Tenant's receipt of Landlord's Notice. Tenant shall!R the even! TeRaPA Testa execute such amendment; it-sball4o-w within fifteen (15) days following its receipt of the same and If Tenant fails to do so, Landlord shall have the further right at any time thereafter to terminate this Lease in accordance with the provisions of (ii) above. Tenant shall vacate the Premises and surrender possession thereof to Landlord not later than t:-ie date specified in Landlord's Notice and in accordance with the terms of this Lease. Landlord will pay Tenant its unamortized net cost of Tenant's leasehold improvements to the Premises within ten (10) days after Tenant vacates the Premises. Tenant agrees that the execution of the lease amendment or its receipt of the payment of the consideration for the lease termination in accordance with (ii) above shall be Tenant's sole remedy in the event Tenant is required to surrender possession of the Premises as provided in this Section. Notwithstanding the foregoing, following Tenant's relocation to the newly constructed Food Court Area as outlined in blue on the attached Exhibit'W,sncept as specifically provided herein, I An-11-rd shall not h2va the Landlord's right to relocate the Premises to a new location (the "Second Relocation Premises") shall b s subject to the following: (a) any such proposed relocation shall not occur during the first two (2) years following the Relocation Rent Commencement Date; (b) If the teas of the 1 ease is less Iihan #we (5) at the date of any such mi-ation and Tenant agree" 4A sush relocation, then the term of the- I-e-an-a ishall be @*Wnded five (5) addidens-I yiiieFs and the Mlnlm---m Rant then IR eftct at the explFation (a b) the area and the storefront width of the Second Relocation Premises shall be substantially the same size and length as the area and width of the Premises and Its storefront provided, however, (1) If the Second Relocation Premises is greater in area than the Premises, then there shall be no adjustments to MFn'.mum Rent aFaRy Additional Rants or- charges d--& iindair the Lease and (11) if the area of the Second Relocation Premises is less than the area of the Premises, then Minimum Rent and all ethff Additional Rents and chapliles shrill be adjusted proportionately;-(d c) the Second Relocation Premises shall be located within the Fast Food Cluster of the Shopping Center; (a d) Landlord will, at Landlord's sole cost and expense, reimburse the Tenant for any reasonable costs to fully construct, improve and decorate the Second Relocation Premises, including any coaft associated with the store layout and preparation of architectural drawings for the Second Relocation Prt,mises (except for Tenant's trade fixtures and Inventory) in a manner substantially identical to the Premises at the time of relocation, subject only to such modifications as may be necessary and approved by TeRiHt the Lrndlord in order to accommodate the configuration of the Second Relocation Premises; (f-9) Landlord will pad/ all costs incurred in connection with moving Tenant and Tenant's trade fixtures, Inventory and other pereonM property to the Second Relocation Premises, including any Incidental costs incurred by Tenant in connection wi:h said relocation (such as costs for new business cards and letterhead), such incidental costs not to exceed One Thousand Flue Hundred Dollars (=1,000.00); (gA Tenant shall not be obligated to pay any Minimum Rent or other charges for the period of time during which Tenant is closed as a result of such relocation; (h g) Tenant shall not be required to relocate between October 1st and December 31st, inclusive; and, (I) Landlord shall i3nly have the right to request Tenant to relocate If such relocation is caused by or results from a major raft odel of the Shopping Center or Fast Food Cluster and not merely as a result of Landlord's desire to accommodate a new or another tenant in the Shopping Center. Tenant shall not be required to commence paying rent In the Relocated Premises until Tenant has completed the relocation of Tenant's business provided Tenant diligently pursues such relocation. Further, If Landlord and Tenant do not agree upon a Second Relocation Premises or If Tenant elects not to relocate, then Landlord shall pay Tenant upon Tenant's vacating the Premises the unamortized value of Tenant's Improvements in the J:\Legalease\WP\260 (Capital City)\CajunCafeGrill-n260.doc 36 Aft W 0 Premises (amortized over the Original Tenn of the Lease). and the 00611 Of TORMNS unused himentery and Landlord agrees that all alterations to the Premises necessitated by the expansion, renovation or other change to the Shopping Center referred to in this Section will be performed by Landlord at Its sole cost and expense including, if Tenant elects to execute the lease amendment referred to above which provides for a permanent relocation of the Premises, the construction of improvements to any relocated premises designated by Landlord such that such relocated premises will be comparable in finish to the Premises demised hereby as they existed immediately prior to Tenant's vacating the same. In the event Tenant is required to temporarily relocate, Tenant shall accept the relocated premises "as is" and Landlord shall not be required to perform any work therein. In addition, Landlord will reimburse Tenant for its reasonable and substantiated expenses incurred in moving from the Premises originally demised hereby to the relocated premises (and returning to the original Premises, if appli:able) which reimbursement shall be made within forty-five (45) days following Tenant's submission of Tenant's document-3d expenses. In the event Tenant is required to only surrender a portion of the Premises to Landlord, but is able to operate in the remainder thereof, Rent shall abate on a proportionate basis from the date Tenant surrenders to Landlord possession of the portion of the Premises so affected. Section 23.10: APPLICABLE LAW. The laws of the state in which Landlord's Building is located shall govern the validity, performance and enforcement of this Lease. If either party institutes legal suit or action for enforcement of any obligation contained herein, it is agreed that venue for such suit or action shall be in the state in which the Premises are located. Section 23.11: WAIVER. (a) The waiver by Landlord or Tenant of any term, covenant, agreement or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other terms, covenant, agreement or condition herein contained. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant, agreement or condition of this Lease, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Laandlord's knowledge of such preceding breach at the time of acceptance of such Rent. No covenant, term, agreement or condition of this Lease shall be deemed to have been waived by Landlord or Tenant, unless such waiver be in writing and executed by the party waiving same. Landlord. (b) No waiver of any covenant, term, agreement or condition of this Lease or legal right or remedy shall be implied by the failure of Landlord to declare a forfeiture, or for any other reason. No waiver by Landlord in respect to one or more tenants or occupants of Landlord's Building or any other part of the Shopping Center shall constitute a waiver in favor of any other tenant. A party's 1_andlerds consent to, or approval of, any act by tenant requiring Landlord% consent or approval shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent similar act. by Tenant. No consent or approval by Landlord or Tenant shall operate to change any condition, requirement or other provision of this Lease on any occasion unless rrade in writing and executed by a general partner (or executive officer) of Landlord or Tenant as applicable. Section 23.12: ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Reni. nor shall any endorsement or statement on any check or any letter accompanying any such check or payment as Rent ,ir the like be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's rights and remedies to recover the balance of such Rent or pursue any other right and remedy provided for in this Lease or available at law or in equity. If Landlord shall direct Tenant to pay Rent to a "lockbox" or other depository whereby checks issued in payment of Rent are initially cashed or deposited by a person or entity other than Landlord (albei? on Landlord's authority) then, for any and all purposes under this Lease: (a) Landlord shall not be deemed to have accepted such payment until ninety (90) days after the date on which Landlord shall have actually received such funds, (b) Landlord shall be deemed to have accepted such payment if (and only if) within said ninety (90) day period, Landlord shall not have refunded (or attempted to refund) such payment to Tenant and (c) Landlord shall not be bound by any endorsement or statement on any check or any letter accompanying any check or payment and no such endorsement, statement or letter shall be deemed an accord and satisfaction. Landlord or Landlord's bank may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy provided in this Lease, at law or in equity. Nothing contained in the immediately preceding sentence shall be construed to place Tenant in default of Tenant's obligation to pay Rent if and for so long as Tenant shall timely pay the Rent required pursuant to this Lease in the manner designated by Landlord. Section 23.13: CORPORATE TENANTS. In the event the Tenant hereunder is a corporation, the persons executing this Lease on behalf of the Tenant hereby covenant and warrant that: the Tenant is a duly constituted corporation qualified to do business in the state in which Landlord's Building is located; all Tenant's franchise, corporate and other lienable taxes have been paid to date; all future forms, reports, fees and other documents necessary for Tenant to comply with applicable laws will be filed by Tenant when due; and such persons are duly authorized by the govern; ig body of such corporation to execute and deliver this Lease (including the warrant and/or power of attorney provisions contained in Section 16.02) on behalf of the corporation. Section 23.14: TENANT'S GUARANTOR. DELETED. D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafe3rill(fmal).doc 37 Section 23.15: RECORDING. This Lease shall not be recorded; however Landlord shall have the right to record a short form or memorandum thereof, at Landlord's expense, at any time during the term hereof, and Tenant shall execute same. Section 23.16: AGENT OF LANDLORD. Agent has acted as an agent of Landlord in connection with the execution of this Lease and shall not in any event be held liable to the Landlord or to Tenant for the fulfillment or non-fulfillment of any of the terms or conditions of this Lease or for any action or proceeding that may be taken by Landlord against Tenant, or by Tenant against Landlord. Any waiver of Landlord's liability hereunder, including any waiver of subrogation rights, shall apply with equal force and effect to, and as a waiver of any liability of, Agent. Section 23.17: HAZARDOUS MATERIAL. (a) As used herein the term "hazardous material" means any flammable, explosive, medical, human or animal tissues or substances, hazardous or toxic substar :e, material or waste (including, without limitation, asbestos and chlorofluorocarbons) which has been, or in the future is, determined by any state, federal or local governmental authority or any law, ordinance, statute, governmental rule or regulation to be capable of posing a risk of injury to health, safety or property and/or the use, storage and/or disposal of which is regulated by any governmental authority, including, without limitation, all of those materials and substances designated as hazardous or toxic by the local government having jurisdiction over the Premises, the U.S. Environmental Prwection Agency, the Consumer Products Safety Commission, the Food and Drug Administration or any other govemmenta agency now or hereafter authorized to regulate materials and substance. Tenant shall not cause or permit any hazardous material to be installed in the Premises as a part of Tenant's Work or otherwise brought upon, used, kept, stored or disposed of in or about the Premises or the Shopping Center by Tenant, its agents, employees, contractors or invitees. Notwithstanding the foregoing, Tenant may handle, store, use and dispose of products containing small quantities of hazardous materials (such as aerosol cans containing insecticides, toner for copiers, paints, varnishes and cleaning supplies) of insignificant quantities stored in sealed containers and used in accordance with manufacturers' requirements. (b) If the Premises, any equipment (including, without limitation, WAC equipment), trade fixtures or other mechanical apparatus therein contain any hazardous materials installed by Tenant, its agents, employees, contractors or invitees under Tenant's control, Landlord, at its election, shall have the right to (i) cause Tenant to remove and properly dispose of same, all at Tenant's sole cost and expense, in accordance with applicable law and means and methods approved in advance by Landlord and its professional consultants, and Landlord shall have the right to monitor such work or (ii) perform the removal and disposal thereof itself, in which event Tenant shall comply with all reasonable requirements imposed by Landlord with respect to the performance of ;ruch work, including without limitation closing the Premises for business and remaining closed during the performance of such work, and Tenant shall reimburse Landlord, on demand, for the cost incurred by Landlord in performing such removal (including Landlord's cost of professional consultants). (c) Tenant shall Promptly provide Landlord with copies of any document, correspondence, report or communication, written or oral, relating to hazardous materials at or affecting the Shopping Center (x) to or from any regulatory body, or (y) stating a basis for any potential liability or responsibility of Tenant, Landlord, or the Shopping Center; including all such documents, correspondence, reports or communications prepared by or on behalf of Tenant. In addition to the above, at Landlord's request, Tenant shall provide copies of any and all records and communications whatsoever relating to hazardous materials at or affecting the Shopping Center. (ii) Immediately notify Landlord in the event of a suspected or confirmed release of a hazardous material or violation of environmental laws at or affecting the Shopping Center and caused by or related to the operations of Tenant, its employees, contractors, agents, or any party acting on behalf of Tenant and, at Landlord's sole option, either promptly remediate or correct such release or violation to Landlord's satisfaction or reimburse Landlord's cost of remediation (including reasonable attorneys' and consultants' fees) all as set forth in (b) above; and compensate Landlord and/or third parties for all rosultant damage. (iii) Permit Landlord reasonable access to the Premises for the purpose of conducting an environmental audit or testing, the cost of which shall be borne by Landlord unless the results indicate activity prohibited by environmental laws or hereunder. (d) In accordance with the Occupational Safety and Health Administration Asbestos Rule (1995), 59 Fed. Reg. 40964, as amended and supplemented ("OSHA Asbestos Rule"), Landlord hereby notifies Tenant of the presence or possible presence of asbestos containing materials ("ACMs") and/or presumed asbestos containing materials ("PACMV) (as such terms are defined in the OSHA Asbestos Rule) within the Premises or adjoining enclosed common areas, if any. The ACMs and PACMs may take the form of oipe wrap, vinyl asbestos flooring, sprayed on or trowled on fire proofing, acoustical plaster, insulation, textured ceiling pr tat and other forms. The specific location of any ACMs or D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafelarill(frnal).doc 38 0 0 PACMs within the Premises or adjoining Common Arias may be ascertained by Tenant requesting in writing from Landlord, without cost or expense to Tenant, the applicable portions of any environmental impact survey conducted by Landlord regarding the Shopping Center. The purpose o' Landlord's notification is to make Tenant, its agents, employees and contractors aware of the presence or possible presence of ACMs and/or PACMs in the Shopping Center in order to avoid or minimize any damage to or disturbance of such ACMs and/or PACMs during the progress of Tenant's Work and/or Construction Work. Tenant shall obtain a signed acknowledgment from its agents, employees and contractors working in or about the Premises indicating that such agents, employees and contractors are aware of the presence or possible presence of ACMs and/or PACMs within the Shopping Center and agreeing not to disturb the same during the performance of Tenant's Work and/or Construction Work. At Landlord's request, Tenant shall deliver to Landlord copies of such signed acknowledgments. (e) Tenant shall comply with all applicable Governmental Requirements affecting the Premises, the operation of Tenant's business at the Premises, and the use and removal of any substances therefrom, including, without limitation, hazardous materials installed by Tenant, its agents, employees, contractors or invitees. Such compliance shall include, inter alia; (i) the filing by Tenant of all governmental applications and registrations for all substances used, stored, manufactured, generated or otherwise in the Premises; (ii) the obtaining of all licenses and permits with respect thereto; (iii) the timely filing from time to time, as required, of all reports and other matters required to be filed with governmental authorities having jurisdiction; and (iv) notifying each of its agents, employees and contractors of the presence or presumed presence of ACMs and PACMs within the Shopping Center as set forth above. (f) Tenant shall protect, defend, indemnify and hold Landlord harmless of, from and against all claims, actions, liens, demands, costs, damages, punitive damages, expenses, fines and judgments (including legal costs and attorneys fees) incurred by reason of any actual or asserted failure of Tenant to fully comply with the provisions of this Section 23.17 and/or spills or other contamination of air, soil, or water by or resulting from any hazardous materials installed by Tenant, its agents, employees, contractors or invitees at or around the Premises or the Shopping Center or resulting from removal thereof. Landlord agrees to indemnify, defend and hold harmless Tenant, its subtenants and assignees and their respective agents, employees, officers and directors from and against any and all claims, damages, actions, awards, fines, clean-up costs, expenses, attorneys' fees and court costs which may arise as a result of any claim or finding that Hazardous Materials are present within, upon or beneath 'ire Shopping Center or Premises and such presence is not due to any acts, negligence or conduct of Tenant or its agents employees, contractors or assigns and Landlord will, at its sole cost, properly remediate, remove and abate such Hazardous Materials in accordance with all applicable laws, rules, regulations and ordinances, except in each case to the extent such Hazardous Materials are present as a result of the acts of Tenant, its subtenants or assignees or their respective agents, employees or contractors. If Tenant is unable to operate its business in the Premises due to the presence of Hazardous Materials in the Premises or Shopping Center and such Hazardous Materials are not present as a result of Tenants acts or omissions, then all rents an charges shall abate until Tenant is able to reopen for business in the Premises. (g) Upon ten (10) days prior written request from Landlord, Tenant shall execute, acknowledge and deliver to Landlord a written statement in form satisfactory to Landlord certifying (i) if true, that Tenant has not disposed of any oil, grease, toxic, or hazardous material, at the Premises or (ii) that any such substances used, processed or generated at the Premises have been disposed of properly in accordance with all applicable Governmental Requirements. If Tenant is unable to certify either of the above, Tenant shall so notify Landlord and give Landlord the details resulting in Tenant's inability to so certify. (h) Tenant shall surrender the Premises to Landlord upon the expiration or earlier termination of this Lease free of hazardous materials brought thereon by Tenant and those acting on its behalf and in a condition which complies with all Governmental Requirements, recommendations of consultants hired by Landlord, and such other reasonable requirements as may be imposed by Landlord. (i) This Section shall survive the expiration or sooner termination of this Lease. Section 23.18: FINALIZATION OF CHARGES. Notwithstanding anything to the contrary contained in this Lease, Tenant's failure to object to any statement, invoice or billing rendered by Landlord within a period of one hundred eighty (180) days after receipt thereof shall constitute Tenant's acquiescence with respect thereto and shall render such statement, invoice or billing a final and binding account stated between Landlord and Tenant. Landlord and Tenant intend that the foregoing provision shall supersede any right to audit or request back up documentation from Landlord which may otherwise be provided by this Lease and the foregoing provisions are not intended to grant any such right to Tenant not otherwise expressly provided in this Lease. If there is a year end adjustment or an adjustment resulting from an error in the calculation of any charges payable by Tenant under this Lease (other than Minimum Rent and Percentage Rent) including, without limitation, charges for taxes, Insurance, utilities and Fast Food Cluster and Shopping Center Common Area costs, which results in a deficiency owed by Tenant, Landlord shall notify Tenant of any such deficiency within eighteen (18) months after the expiration of the Lease Year to which such charge or adjustment is applicable. If Landlord does not notify Tenant of such deficiency within said eighteen (18) month pe,lod, Landlord's claim to such deficiency shall be deemed waived and discharged. D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCaf: Grill(fmal).doc 39 i Section 23.19: PRIOR LEASE. DELETED. Section 23.20: FINANCIAL INFORMATION. Tenant shall at any time and from time to time within twenty (20) days of written request from Landlord, deliver to Landlord such financial information concerning Tenant, Guarantor and Tenant's and Guarantor's business operations as may be requested by Landlord, any mortgagee or prospective mortgagee or purchaser or prospective purchaser. Section 23.21: SPRINKLER CHARGE. Deleted. Section 23.22: NOTICE TO MORTGAGEE. If the holder of any mortgage which has a lien against the Shopping Center or any part thereof forwards to Tenant written notice of the existence of such lien, then Tenant shall, so long as such mortgage is outstanding, be required to give to such lienholder the same notice and opportunity to correct any default as is required to be given to Landlord under this Lease, but such notice of default may be given by Tenant to Landlord and such lienholder concurrently. Section 23.23: WAIVER OF JURY TRIAL. Landlord and Tenant hereby waive all right to a "rial by jury in any litigation related to this Lease including any mandatory counterclaim or cross claim. Section 23.24: CONFIDENTIALITY. It is agreed and understood that Tenant may acknowledge only the existence of this Lease by and between Landlord and Tenant, and that Tenant may not disclose any of the terms and provisions contained in this Lease to any tenant or other occupant in the Shopping Center or to any agent, employee, subtenant or assignee of such tenant or occupant. Tenant acknowledges that any breach by Tenant of the agreements set forth in this Section 23.24 shall cause Landlord irreparable harm. The terms and provisions of this Section 23.24 shall survive the termination of this Lease (whether by lapse of time or otherwise). Section 23.25: RIGHT OF FIRST REFUSAL. As a specifically bargained for right hereunder, if Tenant makes an assignment for the benefit of creditors, files or suffers the filing against it of a petition under any chapter of the United States Bankruptcy Code, or if proceedings for reorganization or composition with creditors under any federal or state law are instituted by or against Tenant and Tenant or Tenant's trustee (as the case may be) subsequently attempts to assign this Lease or Tenant's interests in this Lease pursuant to 11 U.S.C. § 365 or otherwise, Landlord shall have the right of first refusal to purchase and assume this Lease and Tenant's interests thereunder (collectively "Tenant's Leasehold Interests") upon the following terns and conditions: a. If Tenant receives a bona fide, arm's length offer to purchase Tenant's Leasehold Interests (the "Third Party Offer"), which Third Party Offer Tenant or Tenant's trustee (as the case may be) deems acceptable, Tenant or Tenant's trustee shall first, deliver a copy thereof to Landlord ("Landlord's RFR Notice"). Landlord shall thereafter have the right to assume and acquire Tenant's Leasehold Interests described in Landlord's RFR Notice on the same terms and conditions as set forth in the Third Party Offer. b. Within thirty (30) days following Landlord's receipt of Landlord's RFR Notice, Landlord shall notify Tenant or Tenant's trustee (as the case may be) in writing of landlord's intention to exercise the right of refusal to acquire Tenant's Leasehold Interests or be deemed to have waved such right of first refusal with respect to the transaction described in Landlord's RFR Notice. If Landlord timely exercises Landlord's right of first refusal, Tenant or Tenant's trustee shall be deemed to be contractually bound to sell and assign Tenant's Leasehold Interests exclusively to Landlord in accordance with the terms and conditions set forth in the Third Party Offer. If Landlord fails timely to respond to Landlord's RFR Notice or declines to exercise the right of first refusal granted hereunder in such instance, then Tenant or Tenant's trustee (as the case may be) shall be free to seal and assign the Tenant's Leasehold Interests described in the Landlord's RFR Notice to the proposed purchaser (the "Third Party Purchaser") on the same terms and conditions set forth in the Third Party Offer; provided, however, that the sale and assignment of Tenant's Leasehold Interests to the Third Party Purchaser shall be and remain subject to this right of first refusal provision, such that any future assignment of this Lease by the Third Party Purchaser or any successor thereto, shall be and remain subject to the right of refusal herein granted to Landlord. C. There parties hereby specifically acknowledge and agree that the right of first refusal granted to Landlord herein is not intended to operate, and shall not be construed, as a provision that prohibits, restricts, or conditions the assignment of this Lease within the meaning of 11 U.S.C. § 365(f) or any similar statutory provision. Section 23.26: COTENANCY. It at any time (i) two (2) or more Majors Premises cease operating (except in connection with damage, destruction, condemnation, closing for remodeling, closing for effectuating assignments, and similar matters) and remain closed for more than six months (6) months or are not replaced by a comparable tenant, and (ii) less than seventy-five D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafetniil(final).doc 40 4) percent (75%) of the leasable area of the Food Court and (iii) less than s! -five p2fCEnt (65%) of th e remaining GLA of the Shopping Center are open for business and these conditions exist for more than thirty (30) days, Tenant's Minimum Rent and Percentage Rent shall abate and Tenant shall pay monthly within thirty (30) days after the end of each month, eight percent (8%) of its monthly Gross Sales. Tenant's Additional Rent shall be unaffected by such abatement. If for more than twelve (12) consecutive months said cotenancy remains unmet, Tenant may elect to terminate this Lease upon not less than thirty (30) days' prior written notice to Landlord given no later than sixty (60) days after the end of the twelve (12) month period. If Tenant does not elect to terminate this Lease as herein provided, Tenant's right to the rent abatement shall terminate and Tenant shall be required to pay Minimum Rent and Additional Rent as provided under the Lease retroactive to the first (15) month following the twelfth (12"') month during which the cotenancy requirement remained uncured. If after the date hereof, Landlord adds one or mcxe Majors to the Shopping Center, then from and after such date the number of Majors referred to in the first sentence of this section shall automatically be increased by the number of Major(s) so added, from and after the opening date of each such additional Major(s). Section 23.26: ENTIRE AGREEMENT. (a) There are no oral agreements between the parties hereto affecting this Lease, and this Lease supersedes and cancels any and all previous negotiations, arrangements, letters of intent, lease proposals, brochures, agreements, representations, promises, warranties and understandings between the parties hereto or displayed by Landlord to Tenant with respect to the subject matter thereof, and none thereof shall be used to interpret or construe this Lease. The Lease sets forth all of the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Premises, Landlord's Building and the Shopping Center. No alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing, signed by them and mutually delivered between them. (b) The submission by Landlord to Tenant of this Lease shall have no binding force or effect, shall not constitute an option for leasing of the Promises nor confer any rights or impose any obligations upon either party until the execution thereof by Landlord and the delivery of an executed original copy thereof to Tenant. (c) THE UNDERSIGNED ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE CONFESSIONS OF JUDGMENT CONTAINED IN SECTION 16.02(b) AND (c) AND THAT THE LANDLORD-TENANT RELATIONSHIP CREATED BY THIS LEASE IS COMMERCIAL IN NATURE. TENANT WAIVES ANY RIGHT TO A HEARING WHICH OTHERWISE WOULD BE A CONDITION TO LANDLORD'S OBTAINING THE JUDGMENTS AUTHORIZED BY SUCH SECTIONS AND ACKNOWLEDGES AND AGREES THPT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT LANDLORD MAY OBTAIN A JUDGMENT AGAINST TENANT AS SET FORTH IN SUCH SECTION WITHOUT FURTHER PRIOR NOTICE TO TENANT AND LANDLORD MAY THEREAFTER GARNISH OR ATTACH TENANT'S ASSETS OR PROPERTY AND MAY PLACE A LIEN ON THE SAME WITHOUT FURTHER PRIOR NOTICE OR OPPORTUNITY FOR A HEARING. TENANT HAS CONSULTED WITH AN ATTORNEY REGARDING THE RIGHTS WHICH ARE BEING WAIVED UNDER THIS LEASE, HAS BEEN FULLY ADVISED OF THOSE RIGHTS AND NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS OR TENANT HAS HAD THE OPPORTUNITY TO SO CONSULT WITH AN ATTORNEY AND KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING THE WAIVER OF THESE RIGHTS AND NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS. IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date first hereinabove written LANDLORD: PREIT SERVICE!;, LLC, Agent for PR CAPITAL CITY LIMITED PARTNERSHIP BY: JOSEPH F. CORADINO PRESIDE14T TENANT: MAGIC WOK MANAGEMENT, LLC TIA CAJUN CAFE GRILL BY: Title: Member ' Attest: Title: Secre D:\L.egal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafe:7rill(fuial Woc NS?? it it A • EXHIBIT "B" GUARANTEE OF LEASE [NOT APPLICABLE] D:\Legal\Brenda*WORD\PREIT-Leases\CapitalCity\CajunCafcfirill(fmal).doc 42 0 EXHIBIT "C" COMPLETION CERTIFICATE DA'i ED AS OF PARTI SHOPPING CENTER LEASE (the "Lease") dated as of Parties: PR CAPITAL CITY LIMITED PARTNERSHIP ;"Landlord") ("Tenant") Premises: Tenant Store No: GLA of Premises: square feet Actual Opening Date: Rent Commencement Date: Expiration Date: PART II Tenant, intending legally to be bound hereby, hereby ratifies the Lease and hereby certifies and agrees with Landlord as follows: A. the dates and other information set forth in this Completion Certificate are true and correct; and, B. the Rent Term commences on the Rent Commencement Date set forth in PART I hereof and ends absolutely and without notice at 11:59 P.M. (local time) on the Expiration Date, unless sooner terminated as provided in this Lease or extended by written agreement of the parties; and, C. the Lease has not been assigned, supplemented, amended or otherwise modified; the Lease represents the entire agreement between the parties as to the Premises and its leasing; there are no breaches or other defaults by Landlord under the Lease; all conditions of the Lease to be perforated by Landlord and necessary to the enforceability of the Lease have been satisfied; the Lease is in all other regards in full force and effect; and, D. Tenant has accepted possession of and has entered into occupancy of the Premises; the Premises has been accepted by Tenant as being in accordance with the farms and conditions of the Lease; no Rent has been nor will be paid or prepaid other than as provided in the Lease and there are no defenses, offsets, deductions or counterclaims against the enforcement of the Lease by Landlord or the payment of Rent by Tenant; and, E. the Lease is subordinate to the REA and to any and all mortgages on or deeds of trust as to the Shopping Center subject to the non-disturbance provision of Section 18.02 of the Lease. PART III In addition to the foregoing certifications, Tenant has delivered to Landlord all of the following documents relating to work that has been performed by, through or under Tenant in or about the Premises: A. properly executed and acknowledged affidavits (satisfactory to Landlord) from contractors engaged by Tenant that all work in or about the Premises has been fu ly completed in accordance with the Final Plans approved by Landlord and that each of Tenant's contractors, as well as all subcontractors, laborers and materialmen, has been paid in full; and B. properly executed and acknowledged releases of mechanics', materialmen's and laborers' liens (satisfactory to Landlord) with respect to the Premises from each of Tenant's contractors and from every subcontractor and materialman; and C. a set of approved "as-built" drawings and specifications for the work done by Tenant in and about the Premises, prepared, signed and sealed by Tenant's archite,,t, together with a complete set of Tenant's "as-built" sprinkler and other fire protection drawings and specifications prepared, signed and sealed by Tenant's architect or engineer; and D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCity\CajunCafe.Cnill(fmal).doc 43 ? i D. true and complete copies of certificates of occupancy and licenses from governmental bodies having jurisdiction over Tenant's use or occupancy of any part of the Premises; and E. a detailed cost break-down sheet satisfactory to Landlord specifying the line items and cost of each line item of the work done by, through or under Tenant in and >bout the Premises; and, electrical underwriters certificate from an organization satisfactory to Landlord. All terms defined in any other part of the Lease are used herein as defined therein. This COMPLETION CERTIFICATE has been exel:uted as of the date first above written. • TENANT: By: (Corporate Seal) P Rest: Title: D:\L.egal\BrendaWWORi)\PREIT-I.eases\CapitalCity\CajunCafe? ,rill(R,W).doc 44 a 0 EXHIBIT FAST FOOD CLUSTER TENANT EXHIBIT This FAST FOOD CLUSTER TENANT EXHIBrt (the "FFC Exhibit") is annexed to and made a part of the Shopping Center Lease (the "Lease") by and between 13,11 CAPITAL CITY LIMITED PARTNERSHIP, as Landlord, and MAGIC WOK MANAGEMENT, LLC, as Tenant for tho:;9 Premises designated currently by Landlord as Tenant Store Number j);34 (the "Premises") in Capital City Mall, with an address of PR Capital City Limited Partnership, Management Office, 3506 Capital City Mall Drive, Camp Hill, Pennsylvania, 17011, Attn: General Manager, and is executed of even date with the said Lease. In the event a conflict arises between the provisions of this FFC Exhibit and any other part of the Lease, the provisions of this FCC Exhibit shall modify and supersede: the conflicting provisions of such other part of the Lease to the extent necessary to eliminate such conflict but not further. All terms which are defined in any other part of the Lease shall have the same meaning when used herein. ARTICLE 1: THE FOOD COURT AREA Section 1.01: THE FOOD COURT AREA. The "Food Court Area" (sometimes referred to n this Lease as the "Fast Food Cluster") means and shall be the area specifically designed for small restaurant operations situated in the Landlord's Building, including, without limitation the individual premises, as well as any seating area and the maintenance areas exclusively serving the Food Court Area. Section 1.02: FOOD COURT SEATING AREA. The "Food Court Seating Area" means and shad be the portion of the Common Areas which is made available by Landlord for seating purposes and shall be for the non-exclusive use by customers and patrons of the Food Court Area. Landlord shall furnish and install equipment, floor covering, lighting fixtures, decorative and permanent fixtures, ceiling, tables, chairs, accessories and other property in the Fooc Court Seating Area. Landlord shall be the sole owner of said fixtures, equipment and property, and shall have the right tD make changes from time to time in the size, shape or location or both, of the Food Court Seating Area and in the number, type and style of any or all aspects of the facilities, equipment and other property therein. Section 1.03: CHANGES BY LANDLORD. As between Landlord and Tenant, Landlord shall at all times have the right and privilege of determining the nature and extent of the Food Court Area and of making such changes, rearrangements, additions, or reductions therein and thereto from time to time which in its opinion are deemed `:o be desirable and for the best interest of a significant number of the persons using the Food Court Area or which are made, pursuant to Section 1.05 of this Lease, as a result of any federal, state or local, environmental or other law, rule, regulation, guideline, judgment or order. Landlord shall not, however, change materially the dimensions of the Premises. ARTICLE 2: USE Section 2.01: USE. Tenant shall use the Premises solely for the prepwation, sale and delivery of food to the public for "carry-out" or for consumption in the Food Court Seating Area. Tenant agrees to sell only those food items specifically enumerated in Section n of the Fundamental Lease Provisions (those fcod items hereinafter sometimes referred to as the "Menu"was more particularly set forth in Exhibit "D") and to maintain the highest standards in quality, portions of servings, and preparation of such food items. Tenant agrees to offer for sale each of the enumerated food items on the Menu and any failure to sell any of the items on the Menu (other than Tenant's Inability to secure the required Ingredients despite using Its best efforts to do so) or any significant and material substitution for or addition to such Menu without Landlord's specific written approval shall be deemed an Event of Default pursuant to Section 16.01 of this Lease; and, in addition to any other rights or remedies pursuant to this Lease, Landlord shall, following Landlord's notice and Tenant's failure to cure, specifically have the right to terminate this Lease if Tenant violates this provision. Section 2.02: DISPOSABLE PRODUCTS. For the purpose of serving food and beverages to the public:, Tenant agrees to use only disposable paper or other equally degradable goods and utensils, including, but not limited to, cups, wrap materials, plates, trays, boats, straws, bags, napkins, spoons, forks, knives, stir sticks and the like (collectively the "Disposables"). Landlord shall have the right to develop a uniform design for all such Disposables as may be required in the operation of the Food Court Area; provided, however, Tenant shall be permitted to use Tenant's standard Disposables as are used In Tenant's other Cajun Caf4 & Grill operations. All Disposables shall bear the name and/or logo of Tenant, OF the WRikFFR design deyeleped by l andleFd, if any. Tenant agrees, in any event, to use only Disposables of the type, size, material and color approved by Landlord. Tenant shall not be required to purchase such Disposables from Landlord, but Landlord may, for the D:\Legal\BrendaWWORD\PREIT-Leases\CapitalCity\CajunCaft..rrill(fmal).doc 45 convenience of both parties, develop a local source of supply. Tenant shall at all times have the right to develop its own source of supply for such Disposables, provided only that the Disposables meet the requirements stated herein. Section 2.03: EMPLOYEE DRESS AND CONDUCT. Employees shall at all times be required to present a clean and well-groomed appearance and shall wear uniforms, the color and style of which are to be subject m Landlord's approval. Tenant may make such arrangement with Employees as it deems appropriate regarding the purchase and maintenance of standard uniforms. However, Tenant shall require its standard uniform to be worn by all Employees at all times while on duty in the Premises. Landlord may, at any time, direct Tenant to require any Employees not so attired to immediately conform to the requirements or leave the Premises. ARTICLE 3: FOOD COURT CAM SUM & FOOD COURT CAM CHARGE Section 3.01: FOOD COURT CAM SUM As a tenant of the Food Court Area, Tenant agrees to pay and shall pay to Landlord, commencing on the Rent Commencement Date and each and every month and as Additional Rent thereafter throughout the Term, Tenant's share, as hereinafter set forth, of the "Food Court CAM Sum". The term "Food Court CAM Sum" means and shall be all sums incurred in a manner deemed by Landlord to be reasonable and appropriate and for the best interests of the Shopping Center in connection with the operation and maintenan a of the Food Court Seating Area (as the same is reduced, expanded or otherwise altered from time to time) including, without limitation, the following: (a) the cost of operating, maintaining or repairing any HVAC equipment specifically installed to serve the Fast Food Seating Area; (b) the cost of all insurance specifically required for the operation of the Fast Food Seating Area (including, without limitation, insurance against fire and other casualties, bodily injury, personal injury, property damage, product liability, sign insurance and any other insurance required to be carried by Landlord for the Fast Food Seating Area; (c) the cost of maintenance, repair and/or replacement of interior landscaping, decorating, lighting, lighting systems, electrical systems, plumbing systems, HVAC System and any other systems serving the Fast Food Seating Area; (d) the cost of trash, rubbish and garbage removal service; (e) cost of sanitary control; (f) the co n* of maintenance, repair and/or replacement of furniture and fixtures; (g) the cost of all supplies and equipment necessary properly to clean, operate or maintain the Fast Food Seating Area; (h) the cost of all personnel required by Landlord satisfactorily to supervise, implement, maintain or operate the Fast Food Seating Area in a high standard of cleanliness and efficiency; (i) the cost of any security personnel that may be required by Landlord specifically for the Fast Food Seating Area; (j) amortization of the furniture, fixtures and equipment of the Fast Food Seating Area; (k) the cost of any other it:sm or personnel deemed by Landlord necessary to operate or maintain the Fast Food Seating Area in a first class manner; and (1) Landlord's supervisory charge in an amount equal to fifteen percent (15%) of the total aggregate cost of operating and maintaining the Fast Food Seating Area, including, without limitation, those things listed hereinabove. Landlord may have heretofore elected to spread, and may hereafter elect to spread, the amount of certain items of the Food Court CAM Sum over such period of years as Landlord shall determine by amortizing them over such periods instead o?' including such amounts entirely in the year in which expended or incurred, in which event, the annual amortization amount shall be deemed to be an expense incurred during each year of the amortization period, notwithstanding that such expenses may have been expended or incurred prior to the execution hereof. Section 3.02: FOOD COURT CAM CHARGE. Tenant's share of the Food Court CAM Sum (the "Food Court CAM Charge") shall per Year be the product obtaining by multiplying the Food Court CAM Sum for that Year by a fraction, the numerator of which shall be the GLA of the Premises and the denominator of which shall be the total GLA of the Food Court Area (to wit, the total GLA of all Food Court Area tenants only). Tenant understands and agrees that the CAM Sum set forth in Article 8 of this Lease does not include the Food Court CAM Sum and Tenant's obligation to pay the Food Court CAM Charge shall in no way reduce Tenant's obligation to pay Tenant's CAM Charge as set forth in Article 8 of this Lease. Tenant's Food Court CAM charge for the first full year shall not exceed $25.00 per square foot. Notwithstanding anything contained herein to the contrary, Landlord agrees that Tenant's maximum payment of its Food Court CAM Charge for the second twelve (12) month Year shall not exceed the first such Year's payment plus fiypercent (5.%) of such payment; and further, except as set forth below, that any subsequent Year's payment shall not exceed the immediately preceding Year's payment plus five percent 5(?,?.v j of such payment. In making the aforesaid calculations, Food Court CAM Costs relating to utilities, insurance, renovations, snow removal and security shall be excluded from the limitation for each Year and Tenant shall pay its pro rata share of such items without limit. Section 3.03: PAYMENT OF FOOD COURT CAM CHARGE. (a) Tenant shall pay to Landlord, as Additional Rent, Tenant's Food Court CAM Charge. Tenant shall pay Landlord, on the Rent Commencement Date and on the first day of each calendar month of the Tern thereafter, amounts estimated by Landlord to be Tenant's monthly Food Court CAM Charge. Landlord may adjust any of said estimates at the end of any Year on the basis of Landlord's experience and wasonably anticipated costs. (b) Within ninety (90) days following the end of each Rent Year, Landlord shall furnish to Tenant a statement covering such Year just expired, certified as correct by an independent public accountant or an authorized representative of Landlord, showing the Food Court CAM Sum and the amount of Tenant's Food Court CAM Charge for such Rent Year D:\L,egal\BrendaM\WORD\PREIT-I.eases\CapitalCity\CajunCafe(irill(fmal).doc 46 and the payments made by Tenant omfor with respe(a to such Rent Year. If tant's aggregate monthly payments therefor with respect to such Rent Year are greater th:,n Tenant's share, Tenant shall receive a credit for the excess against monthly payments next becoming due to Landlord or, If the Rent Term has expired, be Immediately refunded to Tenant; if said payments are less than said share, Tenant shall pay to Landlord the difference within test--thirty (30) days of demand by Landlord. (c) After Landlord has furnished its annual ststement to Tenant pursuant to Section 3.03(b) hereof, Landlord shall make its records relating to Tenant's Food Court CAM Charge for the immediately preceding Rent Year available for Tenant's inspection within ten (10) days after receiving a written request from Tenant to inspect same provided Tenant has previously paid Landlord the Tenant's share of the Food Court CAM Sum. (d) Tenant acknowledges and agrees that Tenant's Food Court CAM Charge is in addition to not only Tenant's CAM Charges but also Tenant's Utility Charges pursuant to Article 6 of this Lease, Tenant's Tax Charges pursuant to Article 5 of this Lease and all of the other charges set forth, without limitation, in Page 1 of this Lease. IN WITNESS WHEREOF, Landlord and Tenant have duly executed this FAST FOOD CLUSTER TENANT EXHIBIT as of even date with the Lease. LANDLORD: TENANT: MAGIC WOK MA;VAGEMENT, LL T(A CAJUN CAFE GRILL L BY: v? Title: Member .? Attest: Title: Secretary Capital City Mall •.._.._. n -I I A7. PREIT SERVICES, LLC, Agent for PR CAPITAL CITY LIMITED EXHIBIT "D" Cajun Caf6 & Grill MENU The Tenant has the right to sell Cajun & Caribbean foods for immediate consumption on or off the premises including take-out and catering services; and the sale at retail of Cajun & Caribbean pastries, salads, individually dispensed drinks, including juices, coffee, tea, milk, chocolate milk, carbonates, beverages and soft drinks. The Menu includes the following items: XLEAMEW& Choke of one earde saved With any two skip. Qq,Ekw Choice of two eatrwA served With any one side. Q=dZ4&f Choice of two entrEe served With any two aides. EMEEES Flamo-broiled Bourbon Chicken Spicy Bourbon Chicken Spicy 813Q Chicken Blae knew C hIcoen Blackened Fish Shrimp F.Wufcc Shrimp Creole Fried Fish Crispy Glared Chicken Cajun Style Roast Pork Cojum Pork Ribs Chicken Fing Cmwflah amufee Stained Crawfish Delon Mustard Chidkmaeef Roasted Marinated Salmon topped With a lemon cam sauce Assorted Gumbos And Soups PASTAS Blackened Chicken Pasta Cajun Seafood Pasta Pasta w/ Vegetables Pasta W/ Meat sauce Pasta Jambalaya RZQAU Saved with choice of two Side dishas Rum Raisin Chicken Beef Burgundy Creole Beef Stew coconut (rust Chid= Cajun We Bmi Stew Combo Bahamian Rabohs Grilled Jerk Wings Saved With a Mango Haboacro Swim Crab Or Seafocrl Croquette Creole Pail Chop Jambalaya Roast Cidun Chicken Griped Rips G%zod w/ a Puhcapple & Papaya Jerk Ssuoo Cr jun BBQ Ribe 'And odic Caju9 & Ckeok & Caribbean dishes PO'BOY SAN,, Saved with lettuce and tomatoes, mayo & pidde and Home fries Stuffed Pita Podke Gritted Bourbon :Ucken Sandwich Csjmt Roast Pork Sandwich Louisiana Chicken Sandwich Bayou Sausage Stndwich Shrimp Sandwich Crab Meat Sandwich Roast Beef Sandwich !PAM CAFE WRAPS Choice of toatato '=il, jaispeno, Or Windt tortilla Bourbon Chicken Wrap Una Chicken Wrap Chicken Salad Wrap FAMIS GUMADILLA$ SAS Caesar Salad Blackened Chid= Caesar Blackened Shrimp Caesar Fresh aadc u Salad Ituna Salad Chicken SaW Specialty SSW Fruit Salad Pasm Salad SM ORD Red Beane & Rice Dirty Rice, Brown Riot, Yellow Rice, Cajon Rico Mushrooms w/ Zuodm earn seasonal Veggies Banana NOW Cajun Neat Home Fries Mashed Potatoes WI c*n Gravy Cajun Mixed Greens Carrots Yams Macaroni And Cheese Baked Potato Beigna. Plantains Dinner Roll, Biscuits, Corn Bread Assorted Soft Drinks Assorted Bottled Drinks Coffee Hovtood Tea Specialty Tea Milk Assorted Juices Flavored Drinks D:\Legal\BrendaM\WORD\PREIT-Leases\CapitalCitylCajun ,afeGrill(final).doc 48 s SO OVERNIGHT MAIL February 20, 2007 ? pNNED Chang-Guang Liu BOURBON STREET GRILL 2000 Lonshore Avenue Philadelphia, Pennsylvania 19149 RE: ASSIGNMENT OF LEASE AND AMENDMENT OF LEASE dated February 15, 2007, by and between PREIT SERVICES LLC (Landlord) and MAGIC WOK MANAGEMENT, LLC (Assignor) and CHANG-GUANG LIU (Assignee), Trade Name: Bourbon Street Grill, Store No.: PC-6, Capital City, Camp Hill, PA Dear Chang-Guang Liu: Enclosed please find one (1) original fully executed agreement as referenced above. Should you have any questions, please feel free to ! ontact me at (215) 454-1242. Sincerely, A "`-? Latina Sylvester Administrative Assistant Enclosure cc: John Walters w/enc. (Capital City) Tim Havener w/o enc. Joe Aristone w/o enc. File 3`? ?, V t, q'9' DEPOSITION ?k - EXMBPf PREIT-RUBIN, INC. PENNSYLVANIA REAL ESTATE INVESTMENT TRUST PREY Services, LLC The Bellevue • 200 South Broad Street • Phila;.elphia, PA 19102 • Tel: 215-875-0770 • Fax 215-546-7311 A New York Stock E, -.change Company • www.preit.com Member of National Association of Real Estate Investment Trusts • by taxational Council of Shopping Centers • National Multi-Housing Council .?E1 • OVERNIGHT MAIL February 20, 2007 Mr. David Wu MAGIC WOK MANAGEMENT, LLC 3421 North Lakeview Drive Tampa, Florida 33618 RE: ASSIGNMENT OF LEASE AND AMENDMENT OF LEASE dated February 15, 2007, by and between PREIT SERVICES LLC (Landlord) and MAGIC WOK MANAGEMENT, LLC (Assignor) and CHANG-GUANG LIU (Assignee), Trade Name: Bourbon Street Grill, Store No.: FC-6, Capital City, Camp Hill, PA Dear Mr. Wu: Enclosed please find one (1) original fully --xecuted agreement as referenced above. Should you have any questions, please feel free to t ontact me at (215) 454-1242. Sincerely, Laura Sylvester Administrative Assistant Enclosure cc: John Walters w/enc. (Capital City) Tim Havener w/o enc. Joe Aristone w/o enc. File PRErr-RUBIN. INC. PENNSYLVANIA REAL ESTATE INVESTMENT TRUST PREIT Services, LLC The Bellevue • 200 South Broad Street • Philtntelphie, PA 19102 • Tel: 215-875-0770 • Fax 215-546-7311 A New York Stock K., change Company • www.preit.com Member of., National Association of Real Estate Investment Trusts • Inu snational Council of Shopping Canters • National Multi-Housing Council S ANNED Zl e7 a ? T- ASSIGNMENT OF LEASE AND AMENDMENT OF LEASE 1 THIS AGREEMENT, made this 15 day of F-6f-Ugr-? , 2W, by and between PR CAPITAL CITY LIMITED PARTNERSHIP (hereinafter called "Landlord"), MAGIC WOK MANAGEMENT, LLC (hereinafter called "Assignor") and CHANG-GUANG LIU (hereinafter called "Assignee"). WITNESSETH: WHEREAS, on August 31, 2004, Landlord and Assignor entered into a lease (said lease, together with all prior amendments and agreements thereto, if any, are collectively hereinafter called the "Lease") pursuant to which Landlord let unto Assignor the premises designated as Store No. FC6 located in the Capital City Mall, Camp Hill, Pennsylvania (hereinafter called the "Premises"); and WHEREAS, Assignor desires to assign the Lease to Assignee and Assignee desires to acquire the rights and assume the obligations of Assignor under the Lease retroactively effective on October 1, 2006 (the "Effective Date"); and WHEREAS, Landlord is willing to give its consent to such assignment on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto, each intending to be legally bound hereby, covenant and agree as follows: Assignor hereby assi gns to Assignee all of its right, title and interest in and to the Lease, together with all benefits and adv,mtages to be derived therefrom, said assignment to be effective as of the Effective Date. 2. Assignee, for the dire; t benefit of Landlord, hereby assumes the timely and true performance of all of the rents, terms, co venants, conditions, and provisions of the Lease hereby assigned at the time and manner set forth in the Lease (including without limitation the obligations to pay the Minimum Rent, Percentage Rent and Additional Rent and to use the Premises as more fully set forth in said Lease), all with the same fierce and effect as if Assignee had executed the Lease • Premises as more fully set forth in said Lease), all with the same force and effect as if Assignee had executed the Lease originally as the tenant named therein. Assignee hereby agrees that the obligations herein assumed by Assignee shall inure jointly to the benefit of Landlord and Assignor. The liability of Assignee under the Lease shall become primary; provided, however, Assignor shall not be released in any respect from its obligation to fully perform all of its covenants under the Lease. Assignor waives notice of all dAkults by Assignee under the Lease and agrees that neither the waiver by Landlord of any ;-fights against Assignee under the Lease nor any modifications to the Lease made by Landlord and Assignee without Assignor's consent nor any consents given by Landlord pursuant to the Lease nor any subsequent assignments by Assignee of its interest in the Lease shall in any way modify or release Assignor from any of its obligation to Landlord under the Lease, all of which obligmtions shall remain as heretofore. Assignor hereby covenants that the Lease is valid and existing according to its terms. From and after the Effective Date, the Assignee herein shall for all purposes be the "Tenant" under the Lease. 3. As set forth in Exhibit E (Fast Food Cluster Tenant Exhibit), Section 2.01, of the Lease, Assignee agrees to sell only those food items specifically enumerated on the Menu (attached as Exhibit D to the Lease). 4. Assignor's Rights Upon Assignee's Default. If Assignor becomes obligated to fulfill its obligations under the Lease, Assilor shall have the following options, to be exercised by notice to Landlord upon thirty (30) days after Landlord gives notice to Assignor of Assignee's default under the Lease. a) Assignor may elect to assume Tenant's rights, duties and obligations under the Lease (which shall thereupon be deemed to remain in force with Assignor as Tenant); b) Assignor may elect, with Landlord's consent, which consent shall not be unreasonably withheld, to assign this Lease and/or sublet the Premises to an assignee or subtenant designated by Assignor, under the same terms and co iditions as contained in the Lease; c) Assignor may elect to make payment to Landlord of the total sum due under the Lease. However, in such circumstance, Assignor covenants and agrees that throughout the Rent Term (as defined in the Lease), Assignor shall continuously use and operate all of the Premises for the use set forth in the Lease and under Tenant's Trade Name. -2- Assignor's election of any of the above options shall not release Tenant (Assignee) from liability for the performance of all conditions, obligations and agreements of Tenant under the Lease. 5. Landlord's consent to this Assignment and Amendment of Lease is contingent upon Assignor executing a Settlement Agreement and Release which addresses repayment to Landlord of all the monetary obligations due under the Lease up to and including September 30, 2006. 6. For purposes of computation of the Percentage Rent due under the Lease, Assignee shall be deemed to have a first levee year commencing on the Effective Date and ending on the last day of the current year. 7. Landlord hereby convents to the assignment of the Lease by Assignor to Assignee, and hereby agrees that hereafter E1.I notices to be sent to Assignee, as Tenant under the Lease, shall be sent to: Chang-Guang Liu 2000 Longshore Avenue Philadelphia PA 19149 8. From and after the Effextive Date the provisions of the Lease set forth below shall be amended as follows: (a) Attached hereto as "Exhibit F" is a Guaranty of Lease executed by Chang-Guang Liu ("Guarantor"). Assignee a• mowledges that Landlord would not have executed this Assignment and Amendment of Lease with Assignee unless Guarantor agreed to execute the Guaranty. Landlord and Assignee fiuther agree that in the event Landlord, in its reasonable judgment, determines that the credit worthine., s, economic strength or financial status of Guarantor falls below a level which Landlord then finds acceptable, or if Guarantor breaches or otherwise repudiates its obligations under Exhibit "F," or if Guarantor is an individual, and Guarantor dies, or becomes incompetent, or any bankruptcy cT similar procedure is filed by or against Guarantor and not dismissed within sixty (60) days thereafter, then Landlord may, at any time and upon prior written demand to Assignee, require Assignee within thirty (30) days thereafter to deliver to Landlord alternative or additional security i.i a form and substance reasonably satisfactory to Landlord, so that Landlord will not be deprived of adequate assurance of Assignee's financial ability to comply with its obligations imposed by the Lease. In the event Assignee fails to timely ..3- 11 submit such alternative security in form and substance satisfactory to Landlord, such failure shall be deemed an Event of Default. 9. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, administrators, executors, successors and assigns. Except as specifically amended hereby, all of the other terms, conditions and covenants contained in the Lease and all other terms whether or not deemed personal covenants shall continue in full force and effect and are hereby ratified and republished. IN WITNESS WHEREOF, the parties have caused this agreement to be executed the day and year first above written. -WITNESS: LANDLORD: PRETT SERVICES, LLC, Agent for PR CAPITAL CITY LIIMMI) ASSIGNOR: MAGIC WOK MANAGEMENT, LLC Ity: ` -? Z tel. Title: H-kptttia w,chu bet ASSIGNEE: T,y: e2 t C4,1?1 Lexlzd CHANG-GUAN LIU SSN # c? SS- z- 66 7 / ••4- Deposition of Justo Vega IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED, PARTNERSHIP, Plaintiff VS. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant CIVIL DIVISION No. 07-5757 Deposition of: Justo Vega Taken by: Moira Cain-Mannix, Esquire Before: Natalie L. Andreine Court Reporter Date: Tuesday, March 10, 2009, 2:22 p.m. Place: Capital City Mall 3506 Capital City Mall Drive Camp Hill, PA Distinct Deposition Services 412.308.6071 Page: 1 Deposition of Justo Vega Distinct Deposition Services 412.308.6071 Page: 2 Deposition of Justo Vega Distinct Deposition Services 412.308.6071 Page: 3 Deposition of Justo Vega 1 INDEX TO EXHIBITS 2 3 VEGA EXHIBIT NO. MARKED 4 No. 1 - Series of documents 8 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Distinct Deposition Services 412.308.6071 Page: 4 Deposition of Justo Vega 11 mall, by the name of Magic Wok? 2 A. Yes, I do. 3 Q. All right. Are you familiar with Magic Wok's lease? 4 A. Yes, I am. 5 Q. And do you have a file there with you containing Magic 6 Wok's lease? 7 A. Yes, I do. 8 Q. Okay. Are you familiar with an assignment between 9 Magic Wok, PR Capital City Limited Partnership and Mr. Liu? 10 A. Yes, I am. 11 Q. Okay. And is that also contained in the lease file 12 that you have there? 13 A. Yes, that's correct. 14 Q. Okay. Did Mr. Liu take over the space that was -- let 15 me st rike that. 16 At some point in time, did Magic Wok occupy a store at 17 the mall? 18 A. Yes, they did. 19 Q. Okay. And did they leave at some point in time? 20 A. Yes, they did. 21 Q. And did Mr. Liu occupy the premises at some point in 22 time? 23 A. Yes; yes, he did. 24 Q. Did Mr. Liu leave the store at some point in time? 25 A. Yes. He abandoned the space. Distinct Deposition Services 412.308.6071 Page: 7 Deposition of Justo Vega 1 Q. Okay. Did Preit lease the space to a new tenant? 2 A. Yeah. It was, it was leased out thereafter by 3 Saladworks. 4 Q. Okay. And do you know when Saladworks took over that 5 space? 6 A. Yes. Their lease was effective -- they were in their 7 space, and their lease was effective on 12/1/07. 8 Q. Okay. Great. 9 After the assignment of the Magic Wok lease to Mr. 10 Liu and in the course and scope of your duties as bookkeeper, 11 are you aware of whether Mr. Liu, or Magic Wok, failed to make 12 paymen ts which were due and owing under the terms of the lease 13 and th e assignment? 14 A. Yes, they did fail. They failed to make payments. 15 And if my recollection is correct, I don't believe we ever 16 receiv ed any money from Mr. Liu directly. 17 Q. Okay. In connection with this case, have you had 18 occasi on to calculate the amount of rent -- 19 A. Yes, I have. 20 Q. -- and other charges which are presently due and owing 21 under the terms of the lease and the assignment? 22 A. Yes, I have. 23 (Vega Exhibit No. 1 was marked.) 24 BY MS. CAIN-MANNIX: 25 Q. Okay. I would like you to take a look at what I would Distinct Deposition Services 412.308.6071 Page: 8 Deposition of Justo Vega 1 ask you to have the court reporter mark as Exhibit 1 to your 2 deposition and which has been previously provided to Mr. 3 Brophy, and it's a series of documents which you prepared 4 outlining the damages, but I'll let you identify it. 5 A. Yes, that would be the packet that was sent to you. 6 The first page should show Bourbon Street Grill at the 7 top left, and then underneath are my calculations for them. 8 Q. Okay. And can you describe what the series of 9 documents is collectively? 101 A. Yes. 11 Basically, what I had to do is, I had to go back 12 beginning 10/1/06 for charges for Bourb on, and if you go 13 through the packet , you will see that I generated what I would 14 consider a manual report for each rent component, the first 15 one being rent for Bourbon Street from 10/1/06 to 11/30/07. 16 Q. Can I just interrupt you for one second? 17 A. Yes; yes. 18 Q. Can you identify for the record -- you're using the 19 term Bourbon Street. What does Bourbon S treet refer to? 20 A. Bourbon Street is the name that wa s used by Magic Wok 21 and Mr. Liu. That is what the posting of their store was, 22 like the sign above it. 23 Q. It says Bourbon Street Grill, but these are the 24 charges owed by Magic Wok? 25 A. That's correct, yes. Distinct Deposition Services 412.308.6071 Page: 9 Deposition of Justo Vega 1 Q. Okay. You can continue. I'm sorry to interrupt. 2 A. No. That's fine. I'm glad you clarified that. 3 The second component of rent shown would be CAM, and 4 it shows once again my manual report, the charges for the CAM 5 from 10/1/06 to 11/30/07. 6 Q. And then is this -- I guess it's page 4 of this 7 packet. It says page 5 of 9 on the top. Is that correct? 8 A. That would be -- yes, page 4. 9 Q. Okay. 10 A. I have handwritten on it Bourbon CAM and then the time 11 period. 12 Q. Yes. 13 A. Okay? 14 Q. Yes. 15 A. And then the second, which would be the sixth page, 16 should show once again my manual report for the charges for 17 real estate taxes for the period of 10/1/06 to 11/30/07. 18 Q. Okay. 19 A. So basically, those three reports that I show are the 20 chart which is how I calculated the charges from 10/1/06 to 21 11/30/07. From that point forward, due to Saladworks taking 22 the space over 12/1/07, I came up with only the rent charges 23 for Magic Wok or Bourbon Street, if you will. 24 And if you could please refer back to the first page. 251 Q. Okay. Distinct Deposition Services 412.308.6071 Page: 10 Deposition of Justo Vega 1 A. If you see, my first calculation is the rent based off 2 of the rent from 12/1/07 through 8/31/2012. 3 The second calculation shows the rent charges for the 4 period of 9/1/2012 to 8/31/2015. 5 Q. And let me just interject here: Is that because the 6 rental rate increased effective 9/1/2012? 71 A. That's correct; that's correct. 8 Q. Okay. 9 A. So if you calculate those two, those two amounts, the 10 total rent for the period of 12/1/2007 through 8/31/2015 comes 11 to a total of $494,999.88. 12 Below that I have the total of our charges, basically 13 what I just explained to you, as well as the rent, the CAM and 14 the real estate taxes prior to 12/1/07. 15 Q. Okay. 16 A. That is listed as we went through earlier in the 17 deposition. 181 Underneath that -- I'm sorry. 19 Q. What's the total of all the charges? 20 A. I'm sorry. 21 The total of all charges comes out to $554,922.34. 22 Q. And did you then give Magic Wok a credit based on what 23 Saladworks was paying in terms of their rent? 24 A. Yeah. If you cou ld please refer to the last page of 25 the packet, it's listed as Saladworks. As you can see, my Distinct Deposition Services 412.308.6071 Page: 11 Deposition of Justo Vega 1 calculations -- the first one is for the period of 12/1/2007 2 through 11/30/2012. 3 The second -- and I'm sorry. 4 Q. Is the second period -- there's a different rental 5 rate. Is that correct? 6 A. That's correct. 7 The second period includes the rent increase for 8 Saladworks for the period of 12/1/2012 through 8/31/2015. 9 If I may comment on that 8/31/2015? 10 The reason why I stopped at that date is that's 11 because that is the last day of Magic Wok's lease. So 12 obviously I couldn't go beyond that date. 13 Q. Okay. Thank you. 14 A. And the total of Saladworks would come out to 15 $323,730. 16 Q. Okay. 17 A. So I apologize, if you could just once again refer 18 back to the first page -- 19 Q. Yes. 20 A. -- the very last sentence there, I subtracted the 21 $323,730 from the $554,922.34 that were the charges for 22 Bourbon Street, and the difference that you come up with is 23 200 -- I'm sorry. Take that back -- $231,192.34. 24 Q. Thank you. 25 Can you explain why you only calculated charges for Distinct Deposition Services 412.308.6071 Page: 12 Deposition of Justo Vega 1 Magic Wok beginning on October 1 of 2006? 2 A. Yes. Due to there being a settlement agreement, I 3 could only go back to 10/1/06. Everything prior to 10/1/06 4 was agreed upon through that settlement. 5 Q. Okay. One final question: Does $231,192.34 6 accurately represent what is due and owing by Magic Wok under 7 the terms of the lease and the assignment? 8 A. Yes. That number does accurately reflect what is 9 owed. 10 (Pause.) 11 MS. CAIN-MANNIX: I have no further questions. 12 EXAMINATION 13 BY MR. BROPHY: 14 Q. Mr. Vega -- 15 A. Yes. 16 Q. -- this is Mike Brophy. 17 Can you hear me all right? 18 A. I sure can, yes. 19 Q. Okay. I really do just have a couple basic questions 20 for you. 21 First of all, am I correct -- did I hear you correctly 22 that your title is bookkeeper for Preit Services? 23 A. That's correct; the bookkeeper for Preit Services at 24 the Capital City Mall. 25 Q. Okay. With respect to the calculations which you Distinct Deposition Services 412.308.6071 Page: 13 Bourbon Street Grill 12/1/07 thru 8/31/12 RENT $5,000 x 57 = 285,000 9/1/12 thru 8/31/15 RENT $5,833.33 x 36 = 209,999.88 Total of Rent $494,999.88 Total of all charges: $494,999.88 54166.71 * Rent prior to 11/30/07 4927.52 * CAM prior to 11 /30/07 828.23 * RE Taxes prior to 11/30/07 $554,922.34 Subtract Saladworks ( Rent Only) and the difference is $231,192.34 t ? r 0 L r Z??' Iz- N? (,n M N1 M ?dJ r- a (5 U LL. LL M ??p0?p; is $ M n ? C9 r .- r r r O O 9§ r- rl .- r ? O ? Q: 25 ZS ? ? ? ? 25 C aa?aasa????? U C) U U U U U ?U U LL LL LL LL LL LL LL LL U. w l? c l'? M O ? O O 01 ? ? ? 01 :?0 0 0 0 0 0 0 0 0 0 0 a Q b 0 0 0 ? 9 9 9 ? 98 Is - c LL LL LL LL 0 5? tl?? 0 LL LL LL LL U. LL LL LL LL ? ? ? N N ? n r? r? ti ti? ti ti i• ? a Fdgggg?dIIgFdg?g aa?aaaaa??a ??ooooo000000 I? N N O .- N o ? ? V L Lf) nn :: ? ? O O j N 8 N N M 1 s 0 a `? "Is lbo U U LL. LL n g g N r ? ? N r ? n x:10 ? c Saladworks 12/1107 thru 11/30/12 RENT $3,333 x 60 = $199,980 12/1/12 thru 8/31/15 RENT $3,750 x 33 = $123,750.00 Total $323,730 MARCUS & SHAPIRA LLP ONE OXFORD CENTRE, 3V` FLOOR 301 GRANT STREET PITTSBURGH, PENNSYLVANIA 15219-6401 (412) 471-3490 MOIRA CAIN-MANNIX Email: cain-mannix©marcus-shapira.com Direct Dial: (412) 338-3344 Fax: (412) 391-8758 May 3, 2007 VIA OVERNIGHT MAIL Magic Wok Management, LLC Attention: Mr. David Wu 3421 North Lakeview Drive, Suite 168 Tampa, FL 33618 RE: Lease Agreement dated August 31, 2004, by and between PR Capital City Limited Partnership, as Landlord, and Magic Wok Management, LLC, as Tenant; - and - Assignment of Lease and Amendment of Lease, effective October 1, 2006, by and between PR Capital City Limited Partnership, as Landlord, Magic Wok Management, LLC, as Assignor, and Chang-Guang Liu, as Assignee Dear Mr. Wu: You may recall that I represent the Landlord, PR Capital City Limited Partnership ("Landlord"), regarding the above matters. As you are likely aware, on April 30, 2007, Mr. Liu ceased operations and vacated the premises at the Capital City Mall in Camp Hill, Pennsylvania, in violation of the above Lease Agreement. In addition, Mr. Liu is also in default of the above Lease Agreement for failure to pay rent and other charges due thereunder. Since October of 2006, Mr. Liu has incurred a past due balance in the amount of $40,431.00. A statement identifying the amounts owed under the Lease Agreement, and separately delineating amounts owed since October 1, 2006, is enclosed. At this time, the Landlord makes a demand on the Assignor pursuant to the Assignment of Lease and Amendment of Lease to fulfill the obligations of the Assignee under the above Lease Agreement by making payment of all past due sums. Unless the foregoing amount is received in certified funds by the Landlord within thirty (30) days from the date of this letter, Landlord will terminate any rights you may have to possession of the premises and will re-take the space. In addition, we will take all legal steps to collect all amounts owing, including future (accelerated) rent. MARCUS & SHAPIRA LLP Magic Wok Management, LLC Attention: Mr. David Wu May 3, 2007 Page 2 In addition, I request that the Assignor or its agent or attorney contact me to discuss how we might resolve this matter on a going forward basis. I thank you for your prompt attention to this matter, and I look forward to hearing from you. Very truly yours, Moira Cain-Mannix Enclosure cc: Ms. Beth Ahoto (w/o encl.) Mr. Eric Smithers (via email @ esmithersl@yahoo.com) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED CIVIL DIVISION PARTNERSHIP, No. 07-5757 Plaintiff V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. AFFIDAVIT OF STEPHEN S. ZUBROW I, Stephen S. Zubrow, hereby depose and state as follows: I am a partner in the law firm of Marcus & Shapira LLP with twenty-four years of experience in litigation, as well as real estate and corporate matters. 2. Marcus & Shapira LLP has been retained by the Plaintiff and Landlord, PR Capital City Limited Partnership ("PR Capital City"), and its management company, PREIT Services, LLC ("PREIT") (collectively, "client"), in connection with the above action concerning sums owed by a former tenant Defendant Magic Wok LLC pursuant to the terms of the parties' Lease Agreement. 3. For approximately the last six (6) years, Marcus & Shapira LLP has been handling matters for this client associated with collecting sums owed from its tenants. 4. I am personally familiar with the proceedings in this matter and with the legal bills associated therewith. 5. I am the individual at Marcus & Shapira LLP who is responsible for invoicing the client for legal services in this matter, as well as all other landlord tenant matters for this client. PREIT Services Client: 32740 Pennsylvania Real Estate August 25, 2009 Page: 1 Investment Trust Matter: 134 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 E(DT,NPROF5$6IGS&dmgE?,VXGEBrRZNDERED FOR THE PERIOD THROUGH August 25, 2009 Counsel Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) ATTY DATE RATE HOURS TRANS # DESCRIPTION MCM 08/19/09 190.00 4.00 5280778 Prepare motion for summary judgment; review discovery (answers to requests for admission and deposition transcripts) in connection therewith SFM 08/19/09 80.00 0.25 5280770 Review file; prepare summary of status for C. Uy MCM 08/20/09 190.00 4.00 5280779 Continued preparation of motion for summary judgment; prepare S. Zubrow affidavit; review legal bill and redact same for attachment to S. Zubrow affidavit MCM 08/21/09 190.00 0.50 5281166 Re: Capital City Mall - continued review of legal bill and redact time and expenses unrelated to Cumberland County breach of lease action MCM 08/25/09 190.00 1.00 5281306 Re: Capital City Mall - conference with S. Zubrow re: revisions to motion for summary judgment and affidavit of S. Zubrow; revise motion for summary judgment, and revise affidavit of S. Zubrow 1,825.00 FOR SERVICES RENDERED PREIT Services Client: 32740 Pennsylvania Real Estate August 25, 2009 Page: 2 Investment Trust Matter: 134 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 E(DT,NPROFEi@BIQN&amBBV,VGBfiBrBENDERED FOR THE PERIOD THROUGH August 25, Counsel TOTAL HOURS 310 SFM 0.25 20.00 139 MCM 9.50 1,805.00 1,825.00 1,825.00 220.64 2,045.64 FOR SERVICES RENDERED TOTAL BILL PREVIOUS BALANCE DUE TOTAL BALANCE DUE 2009 PREIT Services Client: 32740 Pennsylvania Real Estate Investment Trust Invoice # 81862 Page: 1 The Bellevue, 3rd Floor August S, 2009 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH July 31, 2009 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL)- arm a= =n nuts RATM ANDU ' 138CRIPTXON MCM 07/01/09 1.20 190.00 228.00 Prepare motion for summary judgment and brief in support 228.00 FOR SERVICES RENDERED sOWmRY or HOOKS MCM 1.20 HOURS 0 190.00 228.00 228.00 TOTAL BILL 228.00 TOTAL BALANCE DUE f R PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 81428 Trust Page: i The Bellevue, 3rd Floor June 8, 2009 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH May 31, 2009 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) ATTY IkLTZ P, OILS RATZ A11OM DNBCRIPTION SFM 05/19/09 0.20 80.00 16.00 Review file; e-mail to M. Cain-Mannix re status and next SFM 05/26/09 0.30 80.00 course of action 24.00 Meet with M. Cain-Mannix re motion for summary judgment; review file re MCM 05/26/09 0.20 190.00 same 38.00 Re: Capital city mail - Conference with S. Miller and S. Zubrow re: status and strategy 78.00 FOR SERVICES RENDERED BUNKARY CF HOURS MCM 0.20 HOURS @ 190.00 38.00 SFM 0.50 HOURS @ 80.00 40.00 78.00 TOTAL BILL 78.00 TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 80953 Page: 1 Trust The Bellevue, 3rd Floor May 7, 2009 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH April 30, 2009 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) ATTY DATE NOURB RATA AMOUNT ANBCRIPTION MCM 04/03/09 0.15 190.00 28.50 Re: Capital City Mall - Emails to D. Smith and J. Vega re: deposition transcripts SFM 04/06/09 0.10 80.00 8.00 Review a-mils to J. Vega and D. Smith; prepare tickler re follow up 36.50 FOR SERVICES RENDERED summmy OF Room MCM 0.15 HOURS 0 SFM 0.10 HOURS 8 DISBURBi1 - CONFERENCE CALLS 190.00 28.50 80.00 8.00 7.23 7.23 TOTAL EXPENSES 43.73 TOTAL BILL 43.73 TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 80611 Trust Page: 1 The Bellevue, 3rd Floor April 8, 2009 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH March 31, 2009 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) 0.00 FOR SERVICES RENDERED DXm3mumaws DEPOSITION TRANSCRIPT 158.80 158.80 158.80 158.80 TOTAL EXPENSES TOTAL BILL TO'T'AL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 80540 Page: 1 Trust April 6, 2009 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH March 31, 2009 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) ATW DAM BOURN RATE ANOMT DMBC'RIPTZOK MCM 03/02/09 0.50 190.00 95.00 Re: Capital City Mall - telephone conference with J. Vega re: deposition; a-mails to/from M. Brophy re: scheduling of depositions; e-mail to D. Smith and J. Vega re: depositions; review of and revisions to letter to M. Brophy re: deposition; review of and revisions to deposition notices SFM 03/02/09 0.50 80.00 40.00 Review a-mails re depositions; telephone call with J. Vega to schedule same; prepare notice of deposition of D. Smith; prepare notice of deposition of J. Vega; letter to P. Brophy enclosing same; update status report MCM 03/04/09 0.60 190.00 114.00 Re: Capital City Mall - e-mail to J. Vega re: exhibits for deposition; review voice mail message from J. Vega; e-mail to J. Vega; telephone conference with M. Brophy re: settlement demand; e-mail to H. Crowell, D. Smith, and J. Garry re: status and strategy MCM 03/05/09 2.00 190.00 380.00 Re: Capital City Mall - Prepare for depositions; telephone conference with D. Smith re: same; conference with S. Zubrow re: REDACTED SSZ 03/05/09 0.25 270.00 67.50 Conference with M. Cain-Mannix re REDACTED PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 80540 Page: 2 Trust April 6, 2009 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH March 31, 2009 MCM 03/06/09 4.00 190.00 760.00 Re: Capital City Mall - prepare for D. Smith and J. Vega depositions; telephone conference with D. Smith re: same; telephone conference with J. Vega re: same; review faxes from J. Vega re: past due balance, future rent, and mitigation; conduct deposition of D. Smith; review additional charts faxed by J. Vega re: damages (past due and future rent, mitigation); e-mail to J. Vega re: same; telephone call with M. Brophy re: postponement of J. Vega deposition; e-mail to M. Brophy confirming new deposition date; review revised charts re: damages; e-mail to J. Vega re: same; e-mail to M. Brophy forwarding same; e-mail to H. Crowell, D. Smith, and J. Garry re: REDACTED MCM 03/10/09 2.00 190.00 380.00 Re: Capital City Mall - prepare for J. Vega deposition; telephone conference with J. Vega re: same; review fax from J. Vega re: past due and future rents; conduct deposition; telephone conference with counsel for Magic Wok re: settlement possibilities 1,836.50 FOR SERVICES RENDERED gamma: OF HOURB MCM 9.10 HOURS 4 190.00 1,729.00 SFM 0.50 HOURS 4 80.00 40.00 SSZ 0.25 HOURS 4 270.00 67.50 D_ - - I 's TELEPHONE 6.22 6.22 TOTAL EXPENSES PREIT Services Pennsylvania Real Estate Investment Invoice 80540 Client: 32 Trust Page: 3 The Bellevue, 3rd Floor April 6, 2009 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH March 31, 2009 1,842.72 TOTAL BILL 1,842.72 TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate investment invoice # 79427 Page: 1 Trust The Bellevue, 3rd Floor January 13, 2009 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH December 31, 2008 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) Ar" DA= 80n in 7!MM ANOU T DI ?RIPTIOW SFM 12/17/08 0.10 80.00 8.00 Check status; prepare tickler re follow up SFM 12/18/08 0.20 80.00 16.00 Meet with M. Cain-Mannix re scheduling depositions and outstanding discovery; review file MCM 12/18/08 0.15 190.00 28.50 Conference with S. Miller re: status and strategy MCM 12/29/08 0.30 190.00 57.00 Review email from S. Miller re: status and strategy; Email to M. Brophy re: discovery responses; email to J. Garry re: status and strategy; conference with S. Zubrow SFM 12/29/08 0.30 80.00 24.00 Review and organize file; e-mail to M. Cain-Mannix re outstanding issues; update status chart; prepare tickler re follow up SSZ 12/29/08 0.25 270.00 67.50 Conference with M. Cain-Mannix re strategy for moving case MCM 12/30/08 0.10 190.00 19.00 Review of email from M. Brophy re: status and forward same to J. Garry 220.00 FOR SERVICES RENDERED BUNU 1RY OF UOXTRB MCM 0.55 HOURS 9 190.00 104.50 SFM 0.60 HOURS 0 80.00 48.00 SSZ 0.25 HOURS 0 270.00 67.50 220.00 TOTAL BILL 220.00 TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 78923 Page: 1 Trust November 10, 2008 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH October 31, 2008 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) ATTX UWN Nov= RATZ ]1NDMIT D38CRIPTI(W SFM 10/07/08 0.10 80.00 8.00 Review e-mail from P. Henk; e-mail to P. Henk re defendant's responses to discovery; update status chart 8.00 FOR SERVICES RENDERED SUNKUY Or EKKM SFM 0.10 HOURS Q 80.00 8.00 8.00 TOTAL BILL 8.00 TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 78344 Page: 1 Trust October 6, 2008 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH September 30, 2008 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) A2W DAM Noun RATi Avouw aRSCRIPTYCN SFM 09/10/08 0.20 80.00 16.00 Check status of defendant's answers to discovery; e-mail to P. Henk re same; prepare tickler re follow up 16.00 FOR SERVICES RENDERED SOlMRRY or Roma SFM 0.20 HOURS 0 80.00 16.00 16.00 TOTAL BILL 16.00 TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 77913 Trust Page: 1 The Bellevue, 3rd Floor September 8, 2008 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH August 31, 2008 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) A2W ]XV2 noun RATE A11OMW 01jX=p=ad SFM 08/22/08 0.10 80.00 8.00 Check status of defendant's responses to discovery; prepare tickler re follow up REDACTED T i -t6-$B` FOR SERVICES RENDERED 8.00 BMNG AY or none SFM -0-."24-HOURS S 0.10 80.00 8.00 ?6-fld' TOTAL BILL 8.00 i6iee- TOTAL BALANCE DUE 8.00 PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 77509 Page: 1 Trust August 6, 2008 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH July 31, 2008 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) ATTY VATS SDI pim ANOUXT DSf3CRIM'I0? SFM 07/03/08 0.20 80.00 16.00 Check status of defendant's responses to discovery; e-mail to P. Henk re same; prepare tickler re follow up; update status chart PWH 07/09/08 0.20 200.00 40.00 Letter to counsel re outstanding discovery MCM 07/11/08 0.15 190.00 28.50 Review letter from P. Hank to M. Brophy re: discovery; conference with P. Henk re: strategy for proceeding SFM 07/16/08 0.10 80.00 8.00 Review correspondence from P. Henk to defendant re responses to discovery; prepare tickler re follow up; update status chart 92.50 FOR SERVICES RENDERED MCM 0.15 HOURS 8 PWH 0.20 HOURS @ SFM 0.30 HOURS @ DYSgQSSSI EM FILING FEE COPIES POSTAGE 190.00 28.50 200.00 40.00 80.00 24.00 -10.00 1.80 0.84 -7.36 85.14 TOTAL EXPENSES TOTAL BILL 85.14 TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 77121 Page: 1 Trust July 2, 2008 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATIN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RMMERED FOR THE PERIOD THROUGH June 30, 2008 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY HALL) AWW ULTE SRS RATS AND0ld' DI?BC -XPTION PWH 05/05/08 0.20 200.00 40.00 Telephone call from counsel re discovery and two week extension request SFM 05/09/08 0.50 80.00 -49:$d Check status of tenant's answers to 0.20 16.00 discovery and requests for admissions; prepare tickler re follow up; REDACTED SFM 05/27/08 0.10 80.00 8.00 PWH 05/29/08 0.20 200.00 40.00 PWH 05/30/08 0.50 200.00 100.00 Review P. Henk e-mail re defendant's responses to discovery; update status report re same Letter to counsel re outstanding discovery Telephone call from counsel re discovery and review pleadings REDACTED PWH 06/06/08 1.10 200.00 220.00 SFM 06/09/08 0.30 80.00 24.00 PWH 06/17/08 0.90 200.00 180.00 PWH 06/19/08 0.20 200.00 40.00 Review and analysis of Magic Wok's Answers to Request for Admissions and discovery Review defendant's answers to request for admissions; e-mail to P. Hank re: status of defendant's responses to interrogatories and request for production of documents; update status report Review discovery and letter to counsel re outstanding discovery Telephone call from counsel re outstanding discovery PREIT Services Client: 32740 Pennsylvania Real Estate Investment Trust Invoice # 77121 Page: 2 The Bellevue, 3rd Floor July 2, 2008 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN. Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH June 30, 2008 SFM 06/19/08 0.20 - 80.00 - a MA REDACTED .WW 0.10 8 .00 SFM 06/26/08 0.50 80.00 40.00 review correspondence from P. Henk re defendant's answers to discovery; prepare tickler re follow up; update status report REDACTED SFM 06/27/08 0.40 80.00 32.00 -9*6-. W FOR SERVICES RENDERED 748.00 SWOBM or some REDACTED PWH 3.10 HOURS 6 SFM 2.H HOURS 6 1.60 azssvae?r8 FILING FEE COPIES TELEPHONE POSTAGE 200.00 620.00 80.00 144,04- 128.00 _110.00 0.00 - 2.6e, 0.00 34x4 17.32 19.92 0.00 ?--1? TOTAL EXPENSES 17.32 -°W446- TOTAL BILL 765.32 -991.06 TOTAL BALANCE DUE 765.32 PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 76595 Page: 1 Trust May 8, 2008 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 234 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES Rm3DERED FOR THE PERIOD THROUGH April 30, 2008 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) ASW OA= 310x= RUS AVOMT DWiCM?'1'=ON SFM 04/02/08- - 0.20 80.00 PWH 04/03/08 3.80 200.00 SFM 04108108 0.20 80.00 16 . oo REDACTED 760.00 Draft Request for Admissions, Interrogatories and Request for Production of Documents; letter to counsel 16.00 Review discovery sent to defendant; prepare tickler re responses; update status report REDACTED PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 76595 Page: 2 Trust May 8, 2008 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH April 30, 2008 963.66- FOR SERVICES RENDERED 792.00 gamma" Or lion M11A PWH 3.80 HOURS 6 200.00 760.00 SFM HOURS 6 80.00 3-9:28.060 4 U8 2.0 DDZuwja FILING FEE 17 75 0.00 0 . 0 TOTAL EXPENSES 171-Ma TOTAL BILL -IT _2'S-00 TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate investment invoice 4 76292 Page: 1 Trust April 9, 2008 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH March 31, 2008 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) PWH 03/05/08 1.90 200.00 380.00 Continue to review documents and pleadings in preparation of drafting Request for Admissions REDACTED PREIT Services Client: 32740 Pennsylvania Real Estate Investment invoice # 76292 Page: 2 Trust April 9, 2008 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH March 31, 2008 REDACTED -963.00 FOR SERVICES RENDERED 380.00 SUNNwr OF noun PWH 1.90 HOURS 6 •200.00 380.00 DZT$ REDACTED TOTAL EXPENSES -413 "0 TOTAL BILL 380.00 r PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 75978 Page: 1 Trust March 10, 2008 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH February 29, 2008 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) ATTr DATZ BDg2A RWX AMOUNT D'{8=PTX(W PWH 02/13/08 --3: 8-- 200.00 --6@:00- Review file including all pleadings 1.70 340.00 and documents in preparation of drafting discovery re Allegheny County Judgment and Complaint filed in Cumberland County; REDACTED REDACTED 1,954.00 - FOR SERVICES RENDERED 340.00 SUNUMT or 909" PWH --6-; -HOURS 0 200.00 1:,390.90 340 . 0 0 1.70 - ,354.00 TOTAL BILL 340.00 W PREIT Services Client: 32740 Pennsylvania Real Estate Investment invoice # 75279 Page: 1 Trust January 17, 2008 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH December 31, 2007 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) A'1"1'z DLM tIOVRB RAMS AYOCT WSCR=PTX= MCM 11/08/07 0.20 190.00 38.00 Re: Capital City Mall - Review of e-mail from K. Alweis; e-mail to B. Alioto re: same and re: mitigation MCM 11/09/07 0.15 190.00 28.50 Re: Capital City Mall - Return e-mail to K. Alweis re: answers to complaint and mitigation issue SFM 11/13/07 0.10 80.00 8.00 Review a-mails re status of tenant's space; e-mail to M. Cain-Mannix re lease for new tenant REDACTED SFM 11/16/07 2.60 80.00 208.00 Review e-mail re terms for new tenant; review all relevant file materials; review complaints filed against Magic Work; telephone call with J. Vega re discrepancy in commencement date for Magic Wok; determine difference in rent to be paid by Magic Wok and new tenant; meet with M. Cain-Mannix re same; prepare letter to K. Alweis outlining amounts owed and mitigation of sauna; update status chart; prepare tickler re response from K. Alweis MCM 11116/07 0.75 190.00 142.50 Re: Capital City Mall - Conferences with S. Miller re: damages, mitigation from Saladworks; telephone call to K. Alweis re: same; conference with S. Miller re: preparation of damages analysis; prepare e-mail to K. Alweis attaching damages analysis PREIT Services client: 32740 Pennsylvania Real Estate Investment invoice # 75279 Page: 2 Trust January 17, 2008 The Bellevue, 3rd Floor 200 S. Broad Street platter: 134 Philadelphia, PA 19102 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH December 31, 2007 SFM 12/04/07 0.40 80.00 32.00 Review defendant's answer and new matter; prepare reply to new matter; e-mail to B. Alioto forwarding draft reply to new matter; prepare tickler re receipt of verification SFM 12/14/07 0.20 80.00 16.00 Re: Capital City Mall - Prepare Reply to New Matter for filing; letter to prothonotary enclosing same; update status chart FOR SERVICES RENDERED 473.00 s01¦v" OF Dppgs MCM 1.10 HOURS SFM 33 '.?Q ' HOURS 6 DIN fill )¦?lPSu COPIES POSTAGE 190.00 209.00 80.00 264.00 7.40 7.10 14.50 4 W. .-558 "SS 50 487.50 TOTAL EXPENSES TOTAL BILL TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 74544 Page: 1 Trust November 6, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH October 31, 2007 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) SFM 10/01/07 -$:2e 80.00 -i6.e a Prepare tickler re receipt of filed 0.10 8.00 copy of complaint from Cumberland County; e-mail to M. Cain-Mannix re status of filing complaint in confession against Magic wok in Allegheny County REDACTED PREIT Services Client: 32740 Pennsylvania Real Estate Investment invoice # 74544 Page: 2 Trust November 6, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH October 31, 2007 REDACTED SFM 10/15/07 --9-20- 80.00 -?6-: 88-- 0.10 8.00 review e-mail from M. Cain-Mannix re extension to Magic Wok to answer complaint; prepare tickler re same MCM 10/15/07 0.20 190.00 38.00 Re: Capital City Mall - Telephone call to K. Alweis re: answer to complaint filed in Cumberland County PREIT Services Client: 32740 Pennsylvania Real Estate investment Invoice 4 74544 Page: 3 Trust November 6, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH October 31, 2007 SFM 10/18/07 T.0•' 80.00 128.08 Meet with M. Cain-Mannix re status 0.20 16.00 of service of Cumberland County Complaint, prepare tickler re Answer to Cumberland County REDACTED MCM 10/18/07 -9.30 190.00 Re: Capital City Mall: Conference 0.10 19.00 with S. Miller re: status and strategy for proceeding REDACTED -v33:$e- FOR SERVICES RENDERED 89.00 SWN h= or MOURB MCM -x.16 HOURS 8 190.00 323.0 - 57 • 00 SFM -5-."--HOURS 8 80.00 i6.0 - 32.00 0.40 PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 74389 Page: 1 Trust October 12, 2007 The Bellevue, 3rd floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH September 30, 2007 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) ATTY DiT= man S R&TS ANOOMT EMSMXPTXCK SFM 09/05/07 0.20 80.00 SFM 09/11/07 0.20 80.00 MCM 09/11/07 0.20 190.00 SFM 09/18/07 0.10 80.00 SFM 09/19/07 - 4.8e 80.00 2.00 16.00 Review new updated A/R; a-mail to M. Cain-Mannix regarding same 16.00 Meet with M. Cain-Mannix regarding aging reports; telephone message for J. Vega regarding same 38.00 Re: Capital City Mall - Review of aging reports; conference with S. Miller re: same; telephone call to J. Vega re: same 8.00 Review A/R; note to M. Cain-Mannix regarding same -92&-.W Meet with M. Cain-Mannix regarding 160.00 complaints and issues relating to amounts owed by tenant and sub-tenant; conference call with J. Vega regarding same REDACTED PREIT Services Client: 32740 Pennsylvania Real Estate Investment invoice # 74389 Trust October 12, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel Page: 2 FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH September 30, 2007 MCM 09/19/07 --:5e 190.00 -2-65-:@9- Re: Capital City Mall - telephone 0.75 142.50 conference with J. Vega and S. Miller re: amounts owed by magic Wok ; conferences with S. Miller re: strata for proceeding against REDACTYD Magic Wok under and Lease/Assignment of Lease; email to B. Alioto re: status; REDACTED SFM 09121/07 0.30 80.00 24.00 Telephone call with M. Cain-Mannix regarding complaints to be filed and revisions to same; review finalized complaints MCM 09/21/07 -1.50 190.00 285.90 Review complaints against 0.50 95.00 and Magic Wok (2) and revise same; telephone conference with S. Miller re: same; email to B. Alioto attaching same SFM 09/26/07 - e.4e 80.00 - 2.00 Prepare complaints for filing with 0.20 16.00 prothonotary SFM 09/27/07 ---0.69 80.00 48.Oe Meet with M. Cain-Mannix regarding 0.20 16.00 exhibits to complaints; REDACTED update status report MCM 09/27/07 --$-93-- 190.00 Final review of complaints; review 0.20 38.00 letter to Cumberland County Prothonotary; REDACTED 1,214.5-Or- FOR SERVICES RENDERED 569.50 PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 74389 Page: 3 Trust October 12, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH September 30, 2007 BOMMILlty OF w M n a 1.65 MCM -3': "-HOURS 4 SFM -$-8"OURS Q 3.20 D=sBO?i't's FILING FEE COPIES POSTAGE 190.00 -19V751- 313.50 80.00 -66.j-8e- 256.00 ---255. 0.00 -iee-@e 36.27 ----38.15 10.05 - 374. " TOTAL EXPENSES 46.32 615.82 '--? TOTAL BILL 615.82 X8-9'5 TOTAL BALANCE DUE I' PREIT Services Client: 32740 Pennsylvania Real Estate Investment invoice # 74054 Page: 1 Trust September 13, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH August 31, 2007 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) AT= niTZ NOVRB RATE ANO M'1' D18QR=PTIoM MCM 08/14/07 -e.4e i90.00 -7s-.-m Re: Capital City Mall - Review of 0.20 38.00 and reply to a-mails from B. Alioto re: status and strategy; telephone call and letter to C. Sarsen re: status; e-mail to S. Miller re: preparing complaints against and Magic Wok SFM 08/27/07 --o-ae- 80.00 1- 64-00 REDACTED 0.20 SFM 08/28/07 0.20 80.00 16.00 SFM 08/29/07 -r?fr 80.00 -ise.06 1.20 96.00 SFM 08/30/07 -t.30 80.00 -4$d:ee 0.80 64.00 230.00 ; e-mail to J. Vega regarding updated A/R; a-mails to M. Cain-Mannix regarding complaint against Magic Wok Meet with M. Cain-Mannix regarding new complaint against Magic Wok Review file; telephone call with J. Vega regarding updated A/R and lease termination; REDACTED prepare complaint against Magic Wok Complete draft complaint against Magic Wok and prepare exhibits for same; REDACTED review updated A/R; telephone calls with J. Vega regarding changes to A/R; meet with M. Cain-Mannix regarding same; prepare tickler regarding receipt of revised A/R FOR SERVICES RENDERED PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 74054 Page: 2 Trust September 13, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Matter: 134 Philadelphia, PA 19102 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH August 31, 2007 SUMMM Off' 5001!8 0.20 MCM 6.46 - HOURS SFM -V7V -HOURS 4 2.40 D=SSD7t81?'I'$ COPIES TELEPHONE 190.00 38.00 80.00 -3Q8-0'0- 192 . 0 0 32.00 5.17 37.17 267.17-43'1 "7 ?.; }-7 267.17 TOTAL EXPENSES TOTAL BILL TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice S 73030 Page: 1 Trust July 5, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH June 30, 2007 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) Aror DA= JKM" RATE 1NIOQM'1' DMSCRZPTION MCM 05/02/07 -t-IIO- 190.00 95.?000-- Re: Capital City Mall - email to, 0.50 and review of reply email from, B. Alioto re: default letters; emails to J. Vega requesting a/r statements; review guaranty and assignment of lease and amendment of lease; prepare default letters MCM 05/03/07 0.0 190.00 -0d- Re: Capital City Mall - review 0.20 38.00 statement; revise default letters REDACTED PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 73030 Page: 2 Trust July 5, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH June 30, 2007 REDACTED MCM 06/14/07 0.60 190.00 MCM 06/15/07 -O-zS- 190.00 0.20 114.00 Re: Capital City Mall - Review file; telephone call to B. Alioto re: termination of lease and placing another tenant in possession of the space; prepare letter to tenant and assignee re: termination of right to possession 38 : Re: Capital City Mall - Review A/R statements and revise termination letters to Magic Wok's Counsel and Liu accordingly REDACTED -'94$-80--FOR SERVICES RENDERED 285.00 SUMUR! OF Houits MCM 1 . 503;-5--HOURS 0 190.00 REDACTED Dx In 1ISIMMs EXPRESS MAIL POSTAGE 0• 285.00 -3*-. et-18.0 0 362' 18.36 PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 73030 Page: 3 Theist July 5, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH June 30, 2007 '7Z-Y3- TOTAL EXPENSES 36.36 321.36 - TOTAL BILL 3 21.3 6 TOTAL BALANCE DUE PREIT Services Client: 32740 Pennsylvania Real Estate Investment Invoice # 72370 Page: 1 Trust May 9, 2007 The Bellevue, 3rd Floor 200 S. Broad Street Philadelphia, PA 19102 Matter: 134 ATTN: Bruce Goldman, General Counsel FOR PROFESSIONAL SERVICES RENDERED FOR THE PERIOD THROUGH April 30, 2007 Matter: 134 MAGIC WOK d/b/a BOURBON STREET GRILLE (CAPITAL CITY MALL) ATW D&sTS 110 nits RA'1'1i ANDUNT DESCRIPTION MCM 04/30/07 0.70 190.00 133.00 Re: Capital City Mall - review of and replies to email from B. Alioto re: default on lease; review lease and assignment of Lease and amendment of lease in connection with same 133.00 FOR SERVICES RENDERED BMEOM OF EKKMs MCM 0.70 HOURS 0 190.00 133.00 133.00 TOTAL BILL 133.00 TOTAL BALANCE DUE CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing MOTION FOR SUMMARY JUDGMENT was served via United States Mail, postage prepaid, upon counsel of record listed below this day of August, 2009. Michael D. Brophy, Esquire Goldberg Segalla LLP 1700 Market Street Suite 1418 Philadelphia, PA 19103 Moira Cain-Mannix FILED- OF THEE -,,,,NOTMY ?: r+r' n Al" 3' ,r~S ry ! Fill 03 . 2603 iF A , PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, vs. MAGIK WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, 5757 2007 Defendant. NO Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): plaintiff's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Moira Cain-Mannix, Esquire Marcus & Shapira LLP One Oxford Centre, 35th Floor (Name and Address) 301 Grant Street Pittsburgh, PA 15219 (b) fordefendants: Michael D. Brophy, Esquire Goldberg Segalla LLP (Name and Address) 1700 Market Street Suite 1418 Philadelphia, PA 19103 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 14, 2009 Signature Moira Cain-Mannix Print your name Plaintiff, PR Capital City 08/27/2009 Attorney for Limited Partnership Date: INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CA /AL FILED ',D! S IG of THw 2009 AUG 3 ! PH 3, 39 k . 1, y ;i_,I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED CIVIL DIVISION PARTNERSHIP, No. 07-5757 Plaintiff V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. AFFIDAVIT OF STEPHEN S. ZUBROW I, Stephen S. Zubrow, hereby depose and state as follows: I am a partner in the law firm of Marcus & Shapira LLP with twenty-four years of experience in litigation, as well as real estate and corporate matters. 2. Marcus & Shapira LLP has been retained by the Plaintiff and Landlord, PR Capital City Limited Partnership ("PR Capital City"), and its management company, PREIT Services, LLC ("PREIT") (collectively, "client"), in connection with the above action concerning sums owed by a former tenant Defendant Magic Wok LLC pursuant to the terms of the parties' Lease Agreement. 3. For approximately the last six (6) years, Marcus & Shapira LLP has been handling matters for this client associated with collecting sums owed from its tenants. 4. I am personally familiar with the proceedings in this matter and with the legal bills associated therewith. 5. I am the individual at Marcus & Shapira LLP who is responsible for invoicing the client for legal services in this matter, as well as all other landlord tenant matters for this client. 6. To date, Marcus & Shapira LLP has billed (or, for entries related to this month, will bill) the client for a total of $8,800.26 for services rendered, and litigation expenses incurred, in this matter. (Attached hereto as Exhibit 1 are redacted invoices itemizing the services rendered, the litigation expenses incurred, and the amounts which were billed for this matter). This amount does not include sums which were billed in connection with three prior actions (Civil Action No. 06-4287 filed against Magic Wok in this County, Civil Action No. GD- 07-020938, a confession of judgment action filed in the Court of Common Pleas of Allegheny County against Magic Wok, which judgment was subsequently transferred to Lancaster County, and GD-07-020687 filed against the Tenant's Assignee, Chang-Guang Liu, in the Court of Common Pleas of Allegheny County, which judgment was subsequently transferred to Philadelphia County). Entries and expenses related to these three other actions have been redacted from the attached invoices, and the bills have been reduced accordingly. 7. In my experience in handling cases of this type, this amount is both fair and reasonable. SWORN to and subscribed before me this 31 S day of August, 2009. Notarial seat'-- gemadoe Dwyer, Notary Public City of Pittsburgh, Allegheny Cou* My Commission ExF --s Apr. 26, 2010 Member, Pennsylvania nssoaiatfon of Notaries 2 r`??? ?yli ly OF THE PR", WO?,!OTAPY 2009 SEE -2 P 1'. 5 ? r-, ? , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED CIVIL DIVISION PARTNERSHIP, Plaintiff No. 07-5757 V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. ORDER OF COURT AND NOW, this 9 day of Och 6r- , 2009, after consideration of Plaintiffs Motion for Summary Judgment and the parties' submissions in connection therewith, IT IS HEREBY ORDERED that the Motion is GRANTED. Judgment is entered in favor of Plaintiff and against Defendant Magic Wok Management, LLC, in the amount of $240,071.10. J. BY THE COURT: Fil PD-OFFICE OF THE PF THNOTARY 2009 OCR' -9 PM !2:39 cum C. 14.,.1:-?, i- . 'JNTY PSN t 4SYLVANIN. rs- q44,( A ,enwtc(- i?-ZJ!u - /)Z4A-W ?C 3A°p47 IN THE COURT OF OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff V. MAGIC WOK MANAGEMENT, LLC, Va BOURBON STREET GRILL, Defendant. COMMON PLEAS - , -t- T CIVIL DIVISION No. 07-5757 F CD ` PRAECIPE TO SATISFY JUDGMENT Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow PA ID No. 43523 zubrow@marcus-shapira.com --- ira Cain-Mannix 4- PA ID No. 81131 cain-mannix@marcus-shapira.com Patricia Wozniak Henk PA ID No. 45739 henk@marcus-shapira.com MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 ft.oo PIS A'te%t at;* 011puq(v ex*- 0137135' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED CIVIL DIVISION PARTNERSHIP, No. 07-5757 Plaintiff V. MAGIC WOK MANAGEMENT, LLC, t/a BOURBON STREET GRILL, Defendant. PRAECIPE TO SATISFY JUDGMENT TO: PROTHONOTARY Please mark this case settled and all judgments satisfied as to all parties. Respectfully submitted, Dated: January 28, 2010 Stephen S. Zubrow , Pa. I.D. No. 43523 Moira Cain-Mannix Pa. I.D. No. 81131 MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing PRAECIPE TO SATISFY JUDGMENT was served via United States Mail, postage prepaid, upon counsel of record listed below this 28th day of January, 2010: Michael D. Brophy, Esquire Goldberg Segalla LLP 1700 Market Street Suite 1418 Philadelphia, PA 19103 Moira Cain-Mannix